Tomio Lamera

7/28/2019 Tomio Lamera

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MAIDA TOMIO alias SATO TOSHIO and NAKAJIMATAGAHIRO alias YAMADA TAKAO, accused-appellants.

G.R. No. 75576 September 30, 1991

IN THE MATTER OF PETITION FOR HABEAS CORPUS OFTADAHIRO NAKAJIMA and TOMIO MAEDA, petitioners.

The Solicitor General for plaintiff-appellee.

Jose T. Arroyo for accused T. Nakajima.

Atienza, Tabora, Del Rosario & Castillo for accused T. Maeda.

DAVIDE, JR.,J.:p

Appellants were arrested at about 3:45 o'clock in theafternoon of 12 May 1986 at the main branch of the RizalCommercial Banking Corporation (RCBC) in Makati, MetroManila, while allegedly receiving the partial payment of theransom money from Tatsumi Nagao, a Japanese tourist. On15 May 1986, an Information for Kidnapping and seriousillegal detention for ransom (Article 267 of the Revised PenalCode) was filed against them with the Regional Trial Court ofManila by Vivencio Dionido, Assistant City Fiscal of Manila,which was docketed as Criminal Case No. 86-45055. Theaccusatorial portion of the Information reads:

That on or about May 2, 1986, and subsequentlythereafter, in the City of Manila, Philippines, thesaid accused, conspiring and confederatingtogether with six (6) others whose true names,real Identities and present whereabouts are stillunknown and helping one another, being thenprivate individuals, did then and there wilfully,unlawfully and feloniously, for the purpose ofextorting ransom from the immediate family of

TATSUMI NAGAO, kidnap or detain the latter and

deprive him of his liberty, without legaljustifications and against his will.

Contrary to Law.

The information was filed after an ex-parte preliminaryinvestigation, conducted pursuant to General Order No. 39,

since the offended party is a tourist. This General Ordergrants civil courts concurrent jurisdiction with the militarytribunals over crimes where the offended party is a tourist ora transient, which the former has to dispose of within twenty-four (24) hours after their filing by the arresting officers. 1

On 16 May 1988, the trial court issued an Order setting thearraignment and trial of the appellants on 19 May 1986 anappointing Citizens Attorney Abdulkalim Askali of the CLAO(now PAO.) as counsel de officio for the accused. 2

On 19 May 1986, appellants, through a de parte counsel, JoseT. Arroyo, filed with the Office of the City Fiscal of Manila aVery Urgent Motion For Re-investigations 3 alleging thereinthat the Information was filed without the benefit of apreliminary investigation and that they are innocent, whichthey can prove at a preliminary investigation.

However, the records fail to show that Atty. Arroyo insistedon this motion. On the contrary, at the arraignment on 19May 1986, he categorically stated that the appellants wereready for arraignment, and even requested for a Japanese

interpreter, which was not favorably acted upon since theappellants understand and can speak English and Tagalog.4Both having entered a plea of not guilty, trial proceededimmediately. 5

At the trial on that day and the succeeding two days, theprosecution presented seven witnesses, namely: Pat.Eugenio Guillermo, Pat. Marlon Ursua, Cpl. Virgilio Cabural,complainant Tatsumi Nagao, Sgt. Jovito Gutierrez, WallyMartinez and Daishin Nagao, and offered documentaryexhibits.


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For their defense, appellants relied on their own testimonieswhich they gave in open court on 22 May 1986.

On 27 May 1986, the trial court promulgated a decisionfinding the appellants guilty beyond reasonable doubt of thecrime charged and sentencing each of them to suffer thedeathpenaltyand to pay the costs. 6

The case is now before Us for automatic review.

The facts of the case, as established by the evidence for theprosecution and summarized by the Solicitor General in theBrief for the Appellee, are:

Tatsumi Nagao, a Japanese national, arrived inManila on April 29, 1986 for a five-day vacationtour and was billeted at the Holiday Inn (pp. 5-6,tsn, May 21, 1986).

On May 2, 1986, while Nagao was having lunchalone at the coffee shop of the hotel, two (2)Japanese men approached his table and askedhim if he were a Japanese to which he answeredin the affirmative. Later, he came to know oneof the men as Maida Tomio alias Sato Toshioand the other as Mitamura. They joined him athis table and informed him that they have beenin the Philippines for quite a time and offeredthemselves as his guides in Manila. Thereafter,

Mitamura brought him to the sauna bath of thehotel and a department store in Manila.Eventually, they ended up at the Leo'sRestaurant located along Roxas Boulevard ataround 7:30 o'clock in the evening where theyhad dinner. Before leaving the restaurant,Nagao's companion placed a pack of cigaretteson his (Nagao's) shirt pocket and him to justwait because he has to talk to a taxi driver.After taking few steps from the restaurant,Nagao was approached by five (5)plainclothesmen who Identified themselves as

policemen. They bodily searched him and foundthe pack of cigarettes earlier given him whichthe policemen claimed contained marijuana.Thereafter, the policemen brought him to theSouthern Police District Station (pp. 23-26 tan,May 20, 1986).

While Nagao was at the police station, accused-appellant Tagahiro Nakajima alias Yamadaarrived. Later, Sato Toshio alias Maida Tomioalso arrived. Both acted as interpreters for him.One of them inform him that if he is found guiltyof possession of marijuana, he can sentencedfrom six (6) to twelve (12) years imprisonment.The two (2) then suggested that Nagao givemoney to the policemen who, they claim,demanded U.S. $100,000.00 for his release.Nagao agreed. Thereafter, Toshio and Nakajima

informed him that they had advanced thepayment of the bribe money to the policemenwho, accordingly, agreed to release him (pp. 36-41, tsn, May 20, 1986).

Thereafter, Nagao returned to his hotel escortedby the appellants and a policeman. While there,his escorts did not allow him to leave the hotel.They also demanded that he immediately callup his parents in Japan for the money theyallegedly advanced. Instead of calling up his

parents, he called up a friend and told him of hispredicament. The three escorts stayed with himin the hotel up to 10:00 o'clock the followingmorning. Thereafter, they checked out andtransferred to the Intercontinental Hotel inMakati. Appellants again ordered Nagao to callup his parents. Later, appellants transferredNagao to the Philippine Village Hotel where theyagain asked him to call up his father in Japanabout the money. Nagao's father refused to paythe amount demanded but when Sato talked to

him over the phone, he agreed to pay threemillion yen (pp. 17-31, tsn, May 21, 1986).


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From the Philippine Village Hotel, Nagao wasbrought by the appellants to the VirraCondominium in Makati. When he called up hisfather upon orders of the appellants, he learnedthat his father had already remitted money tothe Rizal Commercial and Banking Corporation(RCBC) in Makati. Forthwith, appellants broughtNagao to RCBC where he withdrew U.S.$1,850.00 and gave it to them. Upon leaving thebank, they were met by policemen from theWestern Police District whose help had beenearlier sought on May 8, 1986 by the JapaneseEmbassy in Manila. Appellants and Nagao werebrought to the Western Police District forinvestigation (pp. 38-40, tsn, May 19, 1986).

Appellants were subsequently charged with thecrime of kidnapping and serious illegal

detention. ...7

Upon the other hand, the version of the accused-appellants,as testified to by them, is summarized by the trial court asfollows:

The version given by the defense in exculpationof the accused is as follows:

On May 2, 1986, the accused NAKAJIMATAGAHIRO alias YAMADA TAKAO met for the first

time Tatsumi Nagao at the Southern PoliceDistrict headquarters in Manila. Tatzumi hadbeen arrested by the police earlier forpossessing marijuana cigarettes and since hecould not speak English very well he wascontacted to act as Nagao's interpreter. Nagaointimated to him that he (Nagao) wanted tosettle the case and offered money to the police.The accused MAIDA TOMIO alias SATO TOSHIOlater came and together they requested thepolice to release Nagao because according to

him the marijuana was not his but belonged to

somebody who gave it to him. Nagao told theaccused that he offered to pay the amount of US$100,000 to the police which he said he wouldborrow them from a friend. Yamada told Nagaothat the amount was too much and suggestedthat he (Nagao) should call his father in Japan tosend the money here. Nagao was ultimatelyreleased by the police for some reason notknown to Yamada and he went back to his hotelat Holiday Inn together with the accusedYAMADA and SATO.

At the hotel Nagao called up his friend in Japanwith the help of YAMADA who placed the callsince Nagao cannot speak English. YAMADA didnot have occasion to talk to Nagao's friend overthe phone. After 30 minutes, another call wasmade by Nagao to Japan. That night of May 2

both accused slept with Nagao in the latter'sroom at Holiday Inn due to Nagao's request notto leave him inside the hotel.

The following day, May 3, Nagao did not knowwhere to go so the accused suggested they lookfor the cheapest hotel or one where they couldstay on credit. The accused MAIDA then madearrangements with a travel agency and, afterchecking in at the Intercontinental Hotel, theychecked out at Holiday Inn and transferred to

the Intercontinental Hotel where they stayed upto May 7. At this hotel, Nagao made manyphone calls to Japan the accused YAMADAalways placing the calls for Nagao. During theirstay at the hotel the accused and Nagao wenton foot to see a movie at the Quad Theater andto eat at a Japanese restaurant. They also wentto Maalicaya Sauna Bath in Quezon City aboutfour times around 10:00 to 11:00 in the eveningwhere Nagao was left alone in one of the roomswith his massage girl attendant. On some of

those occasions Nagao would finish and wouldwait for the accused at the lobby. Twice Yamada


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brought Nagao to his house because Nagaorequested him not to leave him. On oneoccasion, the three of them brought down aFilipina girl from their hotel room but only Nagaoaccompanied her outside the hotel for five tofifteen minutes to see her off and then he cameback to the hotel.

Yamada denies that he and Sato were alwaysguarding Nagao. As a matter of fact, one timewhile they were at Virra Condominium theaccused went out together to meet someJapanese in Roxas Boulevard around midnightand went back to the hotel almost 4:00 in themorning leaving Nagao alone in the hotel roomin the meantime. At Virra Condominium theystayed for two (2) or three (3) days together inone room with Nagao sometimes holding the

key to the room. There Nagao also would go outto buy something, eat meals and have somefun. He even bought Nagao, who was with him,a t-shirt in Makati where there were manypeople. With the help of accused Maida, Nagaomade an overseas call to Japan at Virra.

The reason they went along with Nagao to theRCBC bank on May 12 was that he did not knowhow to go there so they brought him to the bankso that he could withdraw the remittance from

Japan which was intended as payment for hishotel accommodation and other expenses. Aftertheir arrest at the bank they were brought tothe WPD headquarters about 4:30 in theafternoon where he (Yamada) was hit by thepolicemen on his face, body and abdomen. Hewas also brought inside a room where his handsand feet were tied with a rope and his facecovered with cloth after which water was pouredon his nose and mouth while the police wereasking him questions. In fact, they started

hitting him at the bank while he washandcuffed. Besides, his watch costing around

250,000 yen, his 100 grams 18-karat goldbracelet and his necklace were all taken fromhim and his Mustang car confiscated. Hisdriver's license was also taken and he lost hismoney in the amount of almost P3,000.00. Thepolice did not even want to accept the namethat he gave them which was NakajimaTagahiro but insisted on adopting Yamada as hisname. When his statement was taken he wasnot asked to seek the assistance of a lawyer. Itwas the investigator who made the answers inthe statement and he was not even allowed toread it but just to sign it which he did almost3:00 or 4:00 in the morning already after beingsubjected to blows on his face. He declared thathe never demanded money from Nagao for hisrelease.

On cross-examination Yamada admitted he is animmigrant and has stayed in the Philippines foralmost 12 years but is always going back andforth to Japan.

TOMIO MAIDA alias Sato Toshio also metTatsumi Nagao for the first time on May 12,1986 but at the coffee shop of Holiday Innwhere Tatsumi was staying. SATO had aJapanese guest who needed to change hisPhilippine pesos to Japanese yen since he was

going back to Japan and it was Tatsumi whomSATO saw at the coffee shop and whom herequested to make the currency exchange.Tatsumi was subsequently invited by a Mr.Mitamura to SATO's table where there weremany Japanese. Sato left ahead for the airportleaving Tatsumi and Mitamura in conversion.When SATO saw Tatsumi again it was at theSouthern Police District headquarters that sameday being arrested for illegal possession ofmarijuana. He talked to the policemen and

requested for an interpreter for Nagao since hecannot understand and speak English well. He


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found out Nagao had promised to pay thepolicemen $100,000 already but he was notable to put up the amount. Anyway, he went tothe Holiday Inn and there discovered that Nagaohad no more money and they talked about thehotel accommodation and other expensesstarting the following day. Nagao tried and wasable to speak over the phone with Mr. Nagao inJapan who asked him to explain what happened.From Holiday Inn they transferred toIntercontinental Hotel where Nagao was able tocheck in without his passport as SATO broughthim an accommodation request from El Soltravel agency. While they were at theIntercontinental Hotel there was no reasonNagao could not leave the hotel as he wasalways free to leave it. They also went toMaalicaya Sauna Bath where they each had

separate rooms.

When he was arrested at the bank with his co-accused his watch, his wallet and his moneytotaling around P900.00 were taken by thepolicemen including his necklace and goldbracelet. They also boxed him. During theinvestigation they let him lie down on the tablewith his hands handcuffed and, while his facewas covered with cloth, they poured water on it.Since he was afraid of what the policemen

would do to him he just signed the statement.He did not even know the lawyer Bienvenido delos Reyes who was supposed to assist himduring the investigation. He was not allowed toread the statement before he signed it.

From Intercontinental Hotel they transferred toVirra condominium. He brought Tatsumi therebecause he requested him to look for a cheaperhotel.

On cross-examination SATO disclosed that theJapanese Mitamura whom he met for the firsttime on May 2, 1986, informed him that aJapanese was arrested by the police forpossessing marijuana and that when he arrivedat the police headquarters he found out it wasNagao who was the one arrested. 8

The trial court ruled that the accused-appellants were guiltyas charged because they deprived the offended party,Tatsumi Nagao, of his liberty for the purpose of extortingransom from him. It said:

It must be noted that during all this time, fromthe evening of May 2 until the arrest of theaccused in the afternoon of May 12, it cannot bedenied that the accused were always withTatsumi, singly or both of them, at his hotel

room and never losing sight of him. As a matterof fact, the only instance he was ever allowed togo out on his own was at the IntercontinentalHotel when he accompanied a girl out of thehotel to send then the accused were likewisedownstairs at the hotel that Tatsumi thought hewas only being tested by the accused whetherhe would escape. Besides, we have to considerthat as far as Tatsumi Nagao was concerned hewas in a foreign country with no relatives norclose friends. He could not speak or understand

any Philippine Language. On top of this, he hadno more money as this was taken from him bythe police and, worse, his passport was beingheld by the accused thus destroying any hope ofescape from them. Even if he did escape, wherewould he go without any money or passport andhow would he be able to communicate withpeople since he could not speak English ortagalog? Moreover, what was foremost in hismind was that he was merely on a temporaryleash (sic) from the police who were poised

arrest him anytime he reneged on his allegedpromise to pay. This would mean at least six


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years imprisonment not to mention ignominy hewould cause on his person and the consequentscandal since he is a Buddhist priest. During allthis time that he was with accused he knew thatthe only way he could prevent any furtherrestraint on his person was to pay the accusedfrom the remittance of his father in Japan. Thatis why, even the accused were not armed anddid not physically restrain his movements, allthese circumstances taken together created inTatsumi Nagao such fear which actuallyrestrained him from doing what he freelywanted to do and resulted in a deprivation of hisliberty. In other words, while there was nomoney to give to the accused he was stuck withthem.

The Court does not believe the allegation of the

accused that they were not demanding anymoney from Tatsumi Nagao for why would they,who only came to know Tatsumi Nagao on May2, stick to him like a leech that date until theywere arrested on May 12? It could not havebeen being simply charitable since it would havebeen more logical to take Nagao temporarilyinto their homes to avoid more expenses if theirintention was really only to help their fellowcountryman.

What was then the purpose in demanding forthe money? The accused suggest that it was forthe purpose of reimbursing them for theexpenses they had incurred in accommodatingTatsumi Nagao in the hotels and other places.Even if the purpose of the deprivation of Libertyof Tatsumi Nagao alleged by the defense beaccepted that is, to compel payment for theexpenses incurred by the accused underArticle 267 of the Revised Penal Code, asamended by Republic Act No. 1084, the offense

is still kidnapping for ransom. Under Americanrulings, "ransom" has been held to mean in its

ordinary sense as "money," price orreconsideration paid or demanded by forredemption of a captured person or persons, apayment that releases from captivity' (See 75C.J. 458; 36 Words and Phrases, 102; Keith vs.State, 163, So. 136 120 Fla. 487). Since theaccused in this case demanded and receivedmoney as a requisite for releasing TatsumiNagao from their hold, whatever other motivemay have impelled them to do so, the money isstill "ransom" under the law. 9

On 22 July 1986, Atty. Arroyo filed with this Court hisWithdrawal of Appearance as counsel for the appellant MaidaTomio. 10the law firm of Atienza, Tabora, Del Rosario andCastillo then entered its appearance for the latter.

On 18 August 1986, before they could file their Brief,

appellants, through another lawyer, Atty. Dominador R. Sta.Maria, Jr., filed with this Court a petition for habeas corpus, 11which was docketed as G.R. No. 75576. They allege thereinthat the decision of the court below in Criminal Case No. 86-46055, subject of G.R. No. 74630, is "void and illegal"because, among other things, before being investigated, theywere tortured, threatened and deprived of their constitutionalrights to due process and equal protection of the laws;moreover, aside from the fact that no preliminaryinvestigation was conducted, the complainant's fatherinfluenced the Judge directly making the latter's decision

"partial, bias (sic) and prejudiced," and the trial court lackedjurisdiction over the offense charged as it was committed atthe Holiday Inn Hotel in Roxas Boulevard, Pasay City, not inManila. In the resolution of 19 August 1986, 12 the Courtnoted that the questions raised in the petition are also thesubject of the appeal in G.R. No. 74630; consequently, theformer is but a duplication of the latter which is awaiting thefiling of briefs. However, without giving due course to saidpetition, it required respondents to comment thereon.

In the meantime, specifically on 29 August 1986, appellant

Tagahiro Nakajima filed his Brief in G.R. No. 74630 13 wherein


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he ascribes to the trial court the commission of the followingerrors:

I

... IN CONVICTING THE ACCUSED OF THE CRIMEOF KIDNAPPING;

II

... IN FINDING THAT FROM THE EVENING OF MAY2 TO MAY 12, THE ACCUSED WAS ALWAYS WITHNAGAO;

III

... IN CONCLUDING THAT ESCAPE FOR TATSUMINAGAO WAS IMPOSSIBLE BECAUSE HE IS IN A

FOREIGN COUNTRY WITH NO CLOSE RELATIVESAND FRIENDS, BECAUSE HE COULD NOT EVENSPEAK OR UNDERSTAND ENGLISH WELL ORUNDERSTAND ANY PHILIPPINE LANGUAGE, ANDBECAUSE HE HAD NO MONEY AND PASSPORT,WITH NOWHERE TO GO;

IV

... IN FINDING THAT THE ACCUSED HELD THEPASSPORT OF TATSUMI NAGAO;

V

... IN CONCLUDING THAT IT WOULD HAVE BEENMORE LOGICAL IF THEY TOOK NAGAO TO THEIROWN HOUSES;

VI

... IN CONCLUDING THAT THE ACCUSED

DEMANDED FOR RANSOM: and

VII

... IN FINDING THAT THE ACCUSED DEMANDEDRECEIVED MONEY AS PREREQUISITE FORRELEASING NAGAO.

By way of an additional assigned error, which is unnumbered,

but which he claims to invoke for the first time, he allegesthe trial court has no jurisdiction over the crime chargedbecause it was not committed in Manila; if it were committedthe Holiday Inn Hotel, which is not located in Manila butPasay City, it is the proper court of the latter city which hasjurisdiction over it.

Upon the other hand, appellant Tomio Maeda, throughcounsel, filed his Brief14on 18 October 1986. He contendsthat:

I

THE TRIAL COURT ERRED IN ITS HURRIED ANDRAILROADED DISPOSITION OF THE CASE OF THEACCUSED TOMIO MAEDA AND TAGAHIRONAKAJIMA WHOSE RIGHTS TO DUE PROCESSAND FAIR AND IMPARTIAL PUBLIC TRIAL WEREDENIED.

II

THE TRIAL COURT ERRED IN COMPLETELYDISREGARDING THE POSITIVE ANDCATEGORICAL TESTIMONIES OF THE ACCUSEDTOMIO MAEDA AND TAGAHIRO NAKAJIMATHEYDID NOT KIDNAP OR DETAIN COMPLAINANTNAGAO NOR DID THEY DEMAND MONEY FOR HISRELEASE.

III

THE TRIAL COURT ERRED IN FINDING THAT ALLTHE ELEMENTS OF KIDNAPPING WITH RANSOM


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WERE PRESENT NOTWITHSTANDING THE FACTTHAT THE EVIDENCE PRESENTED BY THEPROSECUTION WERE GROSSLY INSUFFICIENT TOESTABLISH THE EXISTENCE OF THE ALLEGEDOFFENSE.

IV

THE TRIAL COURT ERRED IN NOT ACQUITTINGACCUSE TOMIO MAEDA AND TAGAHIRONAKAJIMA ON THE GROUND THAT THEIR GUILTHAS NOT BEEN PROVEN BEYOND REASONABLEDOUBT.

On 27 November 1986, the Plaintiff-Appellee, through theOffice of the Solicitor General, filed a motion for leave to filea consolidated Appellee's Brief, 15 which the court granted inthe resolution of 2 December 1986. 16

Then, on 4 December 1986, the Office of the SolicitorGeneral filed a Comment for the respondents in G.R. No.75578 17asserting therein that considering that petitioners(accused-appellants) perfected their appeal from thechallenged decision, they cannot avail of the writ ofhabeascorpus since the main purpose of the latter is to determinewhether or not a petitioner is legally detained. 18 The issuesthen in the petition should threshed out in the appeal.

In the resolution of 29 January 1987, 19We dismissed the

petition for habeas corpus on the ground that, per Section 4of Rule 102 of the Rules of Court, where the commitment ispursuant to a judgment of conviction, the writ of habeascorpus will not lie. We further said:

In the present case, the petitioners have beenfound guilty beyond reasonable doubt ofkidnapping with ransom. They were accordinglysentenced and are now suffering imprisonmentby virtue thereof. Dismissal of the petition isthus warranted, for their assertion that they are

being illegally deprived of freedom is withoutsupport in law.

Moreover, considering that the substance of theissues under consideration is closely interrelatedor shows a "parallelism" to the errors allegedlyincurred by the trial court and assigned bypetitioners in their briefs filed in G.R. No. 74630,the Court agrees with the submission of theSolicitor General that the matters in controversyshould be resolved in G.R. No. 74630. This is inconformity with the settled rule that "when acourt has jurisdiction of the offense charged andthe person of the accused, its judgment, orderor decree is valid and is not subject to collateralattack by habeas corpus, for this cannot bemade to perform the function of a writ of error,and this holds true even if the judgment, order

or decree was erroneous." (Sotto vs. Director ofPrisons, 5 SCRA 293, citing Vda. de Talavera vs.Superintendent and Warden of the Correcional(sic) Institution, 67 Phil. 538).

Unsatisfied with the said Resolution, petitioners filed on 17March 1987 a motion for its reconsideration, 20 focusing onthe issue of lack of jurisdiction on the part of the trial court,which a Comment was filed by the Office of the SolicitorGeneral on 10 April 1987. 21 Thereafter, petitioners filed areply the comment. 22

This motion remains unresolved.

On 14 April 1987, the Office of the Solicitor General filedAppellee's Brief in G.R. No. 74630 wherein it prays that thisCourt affirm the judgment of conviction but reduce thepenalty to reclusion perpetua pursuant to the newConstitution. 23

The assigned errors of both appellants in G.R. No. 74630 boildown to the following issues:


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1) Jurisdiction, which, as admitted by appellantNakajima, is raised for the first time;

2) Denial of due process, as raised by appellantTomio Maeda; and

3) Sufficiency of the evidence for the

prosecution prove the crime charged.

I

There is no merit in the claim of lack of jurisdiction. Fromtotality of the evidence presented by both parties, theconclusion is inescapable that during the period from 2 to 12May 1986, the complainant was brought to or taken fromdifferent places by the appellants. More specifically, on 2 May1986, the day when they made their initial, but crucial moveon the target, the complainant (hereinafter referred to as Mr.

Nagao), appellants, through the overt act of accused TomioMaeda alias Sato Toshio and another Japanese, broughtcomplainant "some other places in Manila" 24 after theysucceeded in getting his trust and confidence, following aconversation over lunch in a coffee shop at Holiday Inn Hotel.

The essential ingredients of the crime charged were thuscommitted in various places.

The case can, therefore, be filed with the appropriate court inany of the places where the complainant was brought to by

appellants in the pursuit of or in connection with the crimecharged. Section 15 of Rule 110 of the Rules of Courtprovides that subject to existing laws, in all criminalprosecutions, action shall be instituted and tried in the courtof the municipality or territory wherein the offense wascommitted or any one of the essential ingredients thereoftook place. 25

Moreover, in the proceedings below, there was not even theslightest suggestion from the appellants to express theirdoubts as to the jurisdiction of the court over the case. Theydid not present any evidence to show that all of the acts

involved in or related to the offense charged took placeoutside Manila. On the contrary, from their arraignment untilthe promulgation of the decision, they unequivocallyrecognized and then yielded to the trial court's jurisdictionover their persons and the offense charged. They voluntarilyexpressed their readiness to be arraigned, 26 as in fact theywere, abandoning in effect their urgent motion forreinvestigation. They took very active part in the trial byextensively and exhaustively cross-examining the witnessesfor the prosecution, testifying for themselves in the mostdetailed manner as possible to conform with the strategy oftheir counsel, and allowing themselves to be cross-examinedby the prosecuting fiscal. There can be no doubt that suchactive participation was motivated by one desire and wasriveted to one goal: a judgment of acquittal on the merits,which necessarily carried with it an unqualified invocation ofthe jurisdiction and authority of the court. Settled is the rulethat a party who voluntarily submitted his cause before atrial court, actively participated in the hearings therein, orinvoked its jurisdiction, may not be heard to question itsjurisdiction. 27It would be placing a premium on bad faith andyielding to attempts to make a mockery of the judicialprocess if a party would be permitted to question the verypower and authority which he invokes for his own benefit oradvantage once he fails to obtain it.

II

Anent the denial of due process, the main grievance of

appellant Tomio Maeda focuses on the alleged "railroadeddisposition of the case." The filing of the case pursuant toGeneral Order No. 39, which mandates that it should bedisposed of within twenty-four (24) hours after filing by thearresting officer, is inconsistent with the need to make athorough review assessment of the facts, considering thegravity of the imposable penalty. He further claims that theywere tortured and forced to sign statements in the absenceof their lawyer, and that the trial on the merits was anexample of "justice in haste, justice denied."

We are not impressed by the plea.


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In the first place, the statements they made during custodialinterrogation were not taken into account against them. Onthe contrary, the trial court rejected such statements in totoand deplored the failure of the police to comply with theprocedure prescribed by this Court in making an arrest and inconducting a custodial investigation. Said the trial court:

At the outset, it may not be amiss toimmediately point out in the case ofMorales vs.Ponce Enrile, 121 SCRA 638, and reiterated inthe more recent case ofPeople vs. Galit, G.R.No. 51770, March 20, 1985, 28 the HonorableSupreme Court laid down the correct procedurefor peace officers to follow when making anarrest and in conducting custodial investigation,thus:

7. At the time a person is arrested,

it shall be the duty of the arrestingofficer to inform him of the reasonfor the arrest and he must beshown the warrant of arrest, if any.He shall be informed of hisconstitutional rights to remainsilent and counsel, and that anystatement he might make could beuse against him. The personarrested shall have the right tocommunicate with his lawyer, a

relative, or anyone he chooses bymost expedient means bytelephone if possible or by lettermessenger. It shall be theresponsibility of the arrestingofficer to see to it that this isaccomplished. No custodialinvestigation shall be conductedunless it be in the presence ofcounsel engaged by the personarrested, by any person on his

behalf, or appointed by the courtupon petition of either the detainee

himself or by anyone on his behalf.The right to counsel may be waivedbut the waiver shall not be validunless made with assistance ofcounsel. Any statement obtained inviolation of the procedure hereinlaid down, whether exculpatory orinculpatory, in whole or in part,shall be inadmissible in evidence.

The Court notes in this case that there was noteven an attempt on the part of the policeinvestigators to allow or give a chance to theaccused to be assisted by a counsel of their ownchoice during the custodial investigation. When,indeed a lawyer was provided the accused heturned out to be, after all, a team member ofthe same police force investigating the accused.

When the accused finally signed their respectivestatements it was already in the early morningof the following day when the said lawyer whowas supposed to assist them was no longeraround. Even the waiver of the accused Yamadaof his right to counsel has not been shown tohave been assisted by counsel. The Courttherefore doubts the voluntariness of thestatements of the accused (Exhs. "C" and "K").Hence, the same must be rejected in toto.

In the second place, while it may be true that the trial lastedonly for a few days and the decision was promulgated on thetwelfth day after the filing of the information, there is nothingon record that may cast any doubt on the impartiality andneutrality of the judge or on the fairness of his decisionwhich, as We observe, manifests a careful and thoroughanalysis of the evidence. Appellants made no protest in thecourt below as to the manner the trial was conducted. Afterthey completed their testimonies and offered their Exhibit"1," their counsel announced that "we are respectfullysubmitting our case for decision of this Honorable Court." 29

They did not even ask for time to submit a memorandum toaid the court in appreciating the evidence, if indeed the facts


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and the issues were complicated. They cannot now be heardto complain that it hastily decided the case, or that it did notmake a thorough review and assessment of the evidence.

In the third place, all the requisites of due process arepresent in this case, to wit: (a) a court or tribunal clothedwith judicial power to hear and determine the matter beforeit; (b) jurisdiction lawfully acquired by it over the person ofthe appellants and over the offense; (c) the appellants weregiven an opportunity to be heard; and (d) judgment wasrendered upon lawful hearing. 30

In People vs. Castillo, et al., 31We ruled that if an accusedbeen proceeded against under an orderly process of law, andonly punished after inquiry or investigation upon notice tohim, with opportunity to be heard, and a judgment renderedwithin the authority of the constitutional law, then he has haddue process. In the instant case, as stated in the discussion

above on jurisdiction, the accused-appellants activelyparticipated in hearing of the case before the trial court andhad full an unhampered opportunity to cross-examine thewitnesses for the prosecution and to present their ownevidence.

That General Order No. 39 directs civil courts to dispose thecase within twenty-four (24) hours after its filing by thearresting officer, considering that the offended party is atourist, does not detract from the above conclusion thatappellants we not deprived of due process. The requirement,

which is merely directory, is not wanting in reason orpurpose. The stay of tourists in the country is limited induration. Tourism is a major dollar-earning industry which theGovernment has been to promote. Corollarily, it must have toadopt policies to attract tourists and to insure their safetyand security while they are in the country. Special lawsbearing upon procedure, with the end in view of expeditingthe hearings and disposition of criminal cases where touristsare the offended parties, may be validly enacted providedthat there is substantial compliance procedural due processand non-impairment of substantive due process.

III

The third issue requires a determination as to whether or theprosecution has established beyond reasonable doubt theelements of the offense charged. Appellants contend that ithas not, for Mr. Nagao was not restrained of his liberty; hewas free and could have easily escaped. As to the ransom,appellant Tagahiro Nakajima asserts that:

The money remitted by Nagao's fatter was forthe payment of his son's hotel bills, and not forransom purposes (p. 96, tsn., May 21, 1986).Further Nagao's father testified that "Thatreason why I remitted this money because Iwant to know whether my son can get thismoney and to know the whereabout of my son,sir."(p. 107, tan., May 21, 1986).32

However, appellant Tomio Maeda has a different version.According to him, it was in payment of the sum which theyadvanced to the police for and in behalf of Mr. Nagao tosecure the latter's release, and the amount spent for hotelaccommodations and additional expenses they incurred inhis behalf. Otherwise stated:

... a simple contract of loan existed betweencomplainant and the accused whereby thecomplainant incurred a legal as well as moralobligation to pay for the expenses advanced by

the 2 accused in his favor. This is anotherreason why complainant stayed in the companyof the accused. In the words of the complainanthimself, he deemed it "an obligation uponhimself to pay for the expenses" advanced bythe 2 accused in accommodating him (tsn, May21, 1986, p. 24-25). Thus, there was no force orcompulsion in exacting payment from theaccused. There was no demand, as there wasno need for it. The complainant knew that hehad an obligation and that he had to comply

with it. The money to be paid was rightfully due


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to the 2 accused. It was nothing more than apayment for a debt in money. 33

The trial court found otherwise. Its findings were based on itsappreciation of the evidence for the parties which, in turn,revolved upon the credibility of the witnesses. It is well-settled that the conclusion of the trial court on the credibilityof witnesses is entitled to great weight and respect; and,unless there are substantial facts and circumstances thathave been overlooked, which if considered might effect theresult of the case, such findings are generally not disturbedon appeal. The reason for this is that the trial court is in abetter position to observe the deportment and demeanor ofwitnesses to determine the veracity of their answers; 34 it hasthe inestimable advantage of observing the detaileddemeanor of the witnesses. 35

We find no reason to depart from this rule. A painstaking

review of the evidence in this case clearly discloses thecorrectness of such findings.

The evidence for the prosecution has established beyondreasonable doubt that appellants, together with their co-conspirators, had an elaborate and carefully designed plan tokidnap Mr. Nagao in order to obtain ransom from him. Theplan was effectively carried out at lunchtime on 2 May 1986at the coffee shop in Holiday Inn Hotel when appellant TomioMaeda alia Sato Toshio approached Mr. Nagao to find out ifthe latter had Japanese yen to be converted to Philippine

pesos because a friend was to leave for Japan and neededthe yen; Tomio succeeded in having P1,100.00 exchanged for10,000.00 yen belonging to Mr. Nagao. Then, anotherJapanese companion of Tomio, one Mr. Mitamura, invitedcomplainant to join them at their table. Tomio left them andproceeded to the airport to send off his friend who was todepart for Japan. 36 By his addition admissions on cross-examination, he clearly revealed, though rather unwittingly,how the plot would be pursued with the assistance of lawenforcement authorities. As early as 3:00 o'clock in theafternoon of that day, Mr. Mitamura called Tomio by

telephone to inform him that a Japanese was arrested for

having marijuana in his possession, although the name of thelatter was not mentioned. Without even being informed as towhere the arrested party was brought, Tomio proceeded tothe Southern Police District and, upon arriving there at 4:00o'clock, merely informed the police that a Japanese hasmarijuana in his possession. He could not, however, mentionthe name of said Japanese. 37

It should be stressed that at that time, Mr. Nagao had not yetbeen "arrested" by five (5) policemen of the Southern PoliceDistrict for possession of a pack of cigarettes allegedlycontaining marijuana. He was arrested after seven o'clockthat evening following a dinner at Leo's Restaurant.

This visit then of Tomio to the Southern Police District musthave had something to do with a conspiratorial arrangementwith some personnel of said office, more specifically the fivepolicemen who, at past 7:00 o'clock that evening, pounced

on Mr. Nagao and "arrested" him for alleged possession ofmarijuana.

From the Southern Police District, Tomio called Mitamura,who was in the complainant's room at Holiday Inn Hotel;Mitamura told him that they were to take their dinner atLeo's Restaurant. They did in fact have dinner at Leo'sRestaurant, 38 although on direct examination, he said thatafter the meeting at lunchtime, he saw complainant againonly at the Southern Police District. 39

At Leo's Restaurant, Tomio claims:

a ... Later on we saw one Japaneseholding marijuana inside therestaurant and then Mr. Mitamurarequested to call or contact thepolice in order that this Japanesewho was in possession ofmarijuana be arrested.

q So you were informed by

Mitamura to contact the southern


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police district (sic) that there wasthis two (sic) Japanese inside theLeo's restaurant who was inpossession marijuana cigarette(sic)?

a Yes, sir.

q These two Japanese were left atLeo's restaurant and one Japanesewas in possession of marijuanacigarettes?

a Yes, sir.

q And did this police officerarrested (sic) these (sic) Japanesewho is (sic) in possession of

marijuana?

a Yes, sir.

q And who made this plan?

a What plan, sir?

q About you and the southernpolice. At about 7:00 o'clock were(sic) this Japanese holdingmarijuana was arrested?

a That was not a plan, sir. I got onlythe information fro Mr. Mitamurathat some Japanese were inpossession of marijuana.

q You just gather (sic) thisinformation from Mr. Mitamura butyou really inform,(sic) the police?

a Yes, sir.

q So that is the plan of Mr.Mitamura?

a I think so, sir. 40

Other than Mr. Nagao, no other Japanese was "arrested" foralleged possession of marijuana at Leo's restaurant in theevening of 2 May 1986, after a pack of cigarettes was placeinside his left shirt pocket by, according to him, a Japanese.

After complainant was "arrested" by the five policemen fromthe Southern Police District and brought to the headquarters,Tomio showed up, talked to Mr. Nagao and the policemen anrecommended the assistance of an interpreter since,according to him, Mr. Nagao cannot understand and speakEnglish well. 41 The interpreter he had in mind was his co-accused Tagahiro Nakajima, who he forthwith called; thelatter lost no time in coming to the Southern Police District to

act as Mr. Nagao's interpreter.42

Mr. Nakajima offeredadditional information not disclosed earlier, i.e., thepolicemen "found" in the possession of complainant, not justone pack of cigarettes containing 15 stick of marijuana, but asmuggling belt. 43

At the Southern Police District, appellants informed Mr.Nagao that if found guilty of possession of marijuana he canbe sentenced anywhere from 6 to 12 years of imprisonment.The two then proposed that he should give money to thepolicemen, who, they claimed, demanded U.S.$100,000.00.

They informed him that if he will not give the money, hisname and his case would be published in the newspapersbecause, at that time, there were some newspaper reportersoutside. Mr. Nagao, however, did not have the money; heproposed to contact his parents. However, after they talkedto the police in another room, they informed him that theyhad advanced the payment to the police who thereafterreleased him. The appellants and a policeman then broughthim to his room at the Holiday Inn Hotel. 44

The foregoing scenarios were part of the script. With the

obvious connivance of the police, they put the pressure on


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the complainant by demanding, allegedly for and inconsideration of his release, the amount aforestated. Underthe circumstances, with the threat of adverse publicity andimprisonment, it was easy to work on him. To show that theycommiserated with him, they made it appear that theyadvanced the money to the police. We are, however,convinced that the accused-appellants never advanced themoney. That is why they stuck to the complainant like "a

leech," as vividly described by the trial court, after he waseventually "released" by the police. There is no doubt in Ourmind that during the period from 3 May 1986 until theaccused-appellants were arrested on 12 May 1986,complainant was moved from one hotel to another by theappellants, effectively depriving him of his liberty. Ascorrectly observed by the Solicitor General, while it may beconceded that complainant had the freedom of locomotion,he "did not have the freedom to leave the hotel premises atwill and go wherever he pleased." 45 To keep him within theircontrol, appellant Tagahiro Nakajima, who is a businessmanand a resident of 101 Peter's Street, BF Homes, Paraaque,Metro Manila, had to abandon his business and his family tobe with Mr. Nagao. Thus, as he admitted upon question bythe court, he was, from 3 to 12 May 1986, with thecomplainant at Holiday Inn Hotel, Intercontinental Hotel,Philippine Village Hotel and Virra Condominium. He sleptthere, not in his residence. 46 The suite (73) which theyoccupied Virra Condominium is owned by his co-accusedTomio Maeda. 47

Moreover, appellants never refuted the testimony of Nagaomade during cross-examination, that at the hotel they toldhim that if he did not pay them the amount demanded thepolicemen, plus the hotel bills and other expenses, would dosomething to him; they kept on telling him that if he did notpay them, the policemen would arrest him. 48

We are not persuaded by the theory of the appellants thatmoney involved was not ransom money, but rather paymentof hotel bills (as claimed by Tagahiro Nakajima) or forreimbursement of the sum they advanced to pay the

policemen and for hotel accommodations and additionalexpenses spent for complainant (as claimed by Tomio

Maeda). In the first place, none of them claimed that eitheror both of them advanced the money to the police. As amatter of fact, Tagahiro Nakajima testified that he saw thecomplainant counting the money:

q Awhile (sic) ago you stated thathe even offered money the police?

a Yes, sir.

q How much?

a When I was reaching (sic) tothem, they are (sic) writing papers,after that I think he was countingdollar and he told us one hundredthousand US dollar, but suring (sic)that time I was doubtful how come

that big amount he cannot pay the(sic) amount of (sic) One HundredThousand US dollar (sic).

q Now, after that, what happenednext?

a After that he told me that he willjust borrow from his friend OneHundred Thousand US dollar. I toldhim that is impossible and that is

too much, and I also told himbetter talk to your father to sendmoney then after that he called upto Japan (sic).

q Now, was he released by thepolice?

a Yes, sir. 49


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Upon the other hand, as far as could be gathered from thetestimony of Mr. Tomio Maeda on direct examination, themoney given to the police did not also come from him. Thus:

q Did you know as to how muchmoney did he promised (sic) to thepolice?

a Yes, sir.

q How much?

a One Hundred Thousand US.Dollar (sic) ($100,000.00), sir.

q And do you know if he was ableto put up that amount to thepolice?

a No, sir.

q Now, from the headquarter (sic),where did you go?

a At Holiday Inn Hotel, sir.

q And upon reaching Holiday InnHotel, what happened or what didyou do?

a Mr. Nagao don't (sic) have anymoney anymore so we are talking(sic) about hotel accommodationand other expenses starting thenext day and he is (sic) also tryingto contact his friend, sir. 50

What then was the money they advanced to the police?Nothing. However, they succeeded in making it appear to Mr.

Nagao, after they came out of the room at the SouthernPolice District, that they advanced the amount to the police,

for which reason he was released. This was part of thestratagem to give a semblance of legality to the demand forransom.

Now then, if indeed the appellants only wantedreimbursement for the money "paid" to the police, and thatthey were merely motivated by a desire to help a fellowJapanese in distress, why did they have to bring him fromone expensive hotel to the other, thereby incurring moreexpenses? Why did they not bring him to their homes, as thetrial court asked, if only to show their genuine concern forhim?

Even granting for the sake of argument that, in effect, therewas created a simple loan contract between appellants andMr. Nagao, as asserted by appellant Tomio Maeda, thedeprivation of the former's liberty until the amount shall havebeen fully "paid" to them, is still kidnapping or illegal

detention for ransom. In People vs. Akiran, et al.,

51

thisCourt, through Justice J.P. Bengzon, ruled that even if thekidnapping were to compel the victim to fulfill his promise ofdefraying the hospital expenses of a brother of one of theaccused, there is still kidnapping for ransom, since if thatwere indeed the purpose, the accused need not kidnap thevictim. Elaborating thereon, the Court stated that the lastparagraph of Article 267 of the Revised Penal Code, asamended by R.A. No. 1084, which took effect on 15 June1954, which increases the penalty for kidnapping and seriousillegal detention if it is committed for the purpose of

extorting ransom from the victim or any other person, even ifnone of the circumstances mentioned in said Article werepresent in the commission of the offense is:

... derived from statutes of the United States,particularly the Lindbergh Law. Thus, Americanjurisprudence thereon has persuasiveapplication. "Ransom" under American rulings,as used in statutes making kidnapping withintent to hold for ransom a capital offense, hasbeen held to mean in its ordinary sense as

"money, price, or consideration paid or


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demanded for redemption of a captured personor persons, a payment that releases fromcaptivity." 52 Since the accused in this casedemanded and received money as a requisitefor releasing a person from captivity, whateverother motive may have impelled them to do so,the money is still ransom under the law. 53

The doctrine in theAkiran case is applicable here.

Thus, even if the theory of Tomio is correct, it was notnecessary for him and his co-accused Nakajima to deprivethe complainant of his liberty to compel him to pay thealleged loan.

We thus hold that upon the evidence adduced by theprosecution, the guilt of the accused for the crime chargedwas proven beyond reasonable doubt and the trial court

committed no error in convicting them accordingly. In view,however, of Section 19(1) of Article III of the 1987Constitution which abolishes the death penalty and providesthat any death penalty already imposed shall be reduced toreclusion perpetua, the penalty imposed by the trial court isdeemed reduced to reclusion perpetua.

In the light of the foregoing, the motion of appellants dated16 March 1987 to reconsider Our resolution of 29 January1987 in G.R. No. 75576 must also be Denied for lack of merit.

This should not, however, end the story of Mr. Nagao. Asadverted to earlier, other parties, namely, Mr. Mitamura, aJapanese national, and the five policemen from the SouthernPolice District, could be deeply involved in the conspiracy tokidnap him for ransom. Our examination of the records failsto show that Mr. Mitamura and the policemen wereinvestigated or prosecuted in connection with this case. ThisCourt would be remiss in its duty if it were to close its eyeson this matter, more specifically on the alleged involvementof the policemen. Policemen are supposed to enforce the law,protect the people, and maintain peace and order. At the

people's expense, they don the uniform of authority and are

allowed to carry the instruments of legal violence. As such,they are bound to faithfully adhere to the Constitutionaldirective to be at all times accountable to the people, servethem with utmost responsibility, integrity, loyalty andefficiency. 54 When they fail in that sacred duty and becomethe lawbreakers, they have no business staying a minutelonger in their offices and wearing their uniforms. Theydeserve nothing but the severest criminal and administrative

penalties the law provides. The people's taxes should neverbe used to maintain and support scalawags in our lawenforcement agencies who may use their uniforms and theirlawfully issued weapons as convenient shields or instrumentsfor the perpetration of their evil deeds. Accordingly, Wedirect the Philippine National Police to conduct a thoroughinvestigation, if none has been done so far, into theinvolvement of the five policemen of the Southern PoliceDistrict and, should the evidence warrant, file the appropriatecriminal and administrative cases against them. As regardsMr. Mitamura, if he is still in the Philippines, efforts must beexerted by the Bureau of Immigration and Deportation, incoordination with the National Bureau of Investigation, tohave him investigated and prosecuted, should the evidencewarrant. No alien should be allowed to abuse Philippinehospitality and make our country a happy hunting ground forhis criminal activities.

WHEREFORE, judgment is hereby rendered:

1. In G.R. No. 74630, AFFIRMING, subject to the above

provision of Section 19(1) of Article III of the 1987Constitution, the decision of the trial court in Criminal CaseNo. 86-45055, and

2. In G.R. No. 75576, DENYING, for lack of merit, the motionto reconsider the resolution of 20 January 1987.

Costs against appellants.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.


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G.R. No. L-65152 August 30, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.FEDERICO MERCADO OR ALBERTO MERCADO,defendant-appellant.

The Solicitor General for plaintiff-appellant.

Cynthia R. del Rosario for defendant-appellant.

RELOVA,J.:

This is an appeal from the decision, dated September 9,1982, of the then Court of First Instance of Rizal Branch XI, inCriminal Case No. 32112, the dispositive portion of whichreads:

WHEREFORE, the accused is convicted of thecrime charged and is sentenced to reclusionperpetua and to pay the costs. (p. 44, Rollo)

As stated by defense counsel, the conflicting versions of theprosecution and the defense are correctly summarized in thedecision of the trial court, as follows:

The prosecution evidence shows that theaccused was the boyfriend of Susan Baylon, theyounger sister of complainant Yvonne Baylon.

On September 1, 1979, Susan left the familyresidence for an unknown place. The accusedsuspected that it was her elder sister Yvonnewho instigated her to leave. At about 8:30o'clock in the morning on the following daywhile Yvonne was walking on a road at SanCarlos Subdivision, Binangonan, Rizal, theaccused came from behind her. Without anywarning, the accused suddenly grabbed Yvonneby the neck and pointed a knife on her throat.Thereupon, the accused dragged Yvonne to thehouse of Norma Guerrero, a friend of his. Upon


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reaching the porch of the house, Yvonne askedthe accused why he was acting that way. Theaccused replied that he was angry with her anddemanded that she produce her sister, Susan.At this juncture, the accused dragged Yvonnethis time to the road side. Then the brothers ofYvonne and some neighbors arrived asking theaccused to release Yvonne. But instead of doing

so, the accused raised the blouse of Yvonne andinserted his hand underneath it and pointed theknife on her breast. Thereafter, the accuseddragged Yvonne to a store where the Chief ofPolice and some policemen talked to him. Theaccused told the Chief of Police that he wantedto see Susan and also demanded that he begiven transportation and money. This situationlasted up to about 12:00 noon with thepolicemen surrounding the accused and Yvonneabout 15 meters away. After being given somefood to partake, the barrio captain arrived andhe was able to take hold of the accused andsubdue hint him. Yvonne, because of thetraumatic experience she was subjected to, lostconsciousness and was brought to the hospital.Her fingers suffered injuries, abrasion on herneck and a small wound on her stomach.

On the other hand, the accused averred thatSusan Baylon was his wife. Although they were

not legally married they had been livingtogether for sometime in her family house atTayuman. Sometime in August 1979, hequarelled with Susan about her relatives. Hetold Susan that he could no longer live withthem and that they better separate from hersister, Yvonne, and brothers. Thereafter, whilehe remained upstairs in the house, Susan wentdown when Yvonne invited her to eat. WhenSusan did not return, he went down andinquired from Yvonne where Susan had gone.

Yvonne replied that she did not know and hetold her that Susan had left without telling him

where she was going. He then went out of thehouse, looked for Susan and inquired from theirneighbors and relatives about her whereabouts.When he returned to the house unsuccessful inhis search, he found his clothes already placedin a box near the doorway. Yvonne, who wasstanding near the door, then told him to leavethe house and he did so after thanking her for

his stay. On September 2, 1979, at about 8:30in the morning he saw Yvonne sitting on abench inside a store located at Tayuman.Yvonne at the tune was holding a knife and wasabout to stab him from behind. Because a friendwas able to warn him he immediately grabbedthe knife from the hand of Yvonne andsucceeded in doing so. When he asked Yvonnewhy she wanted to stab him she replied thatSusan complained to her. It was while he was inthe act of holding Yvonne and pointing the knifeon her chest when the barrio captain and thepolicemen arrived who thought that he wasgoing to stab Yvonne. He was asked by thebarangay captain what he wanted from Yvonneand he replied that he just wanted Susanproduced because he wanted to talk to her. Healso asked the barangay captain for a vehiclebut he did not ask for any money. When he lostthe knife, the people ganged up on him. (pp. 41-43, Rollo)

Appellant claims that the lower court erred (1) in not rulingthat his guilt has not been proven; (2) in convicting him ofkidnapping and serious illegal detention; (3) in not creditinghim with the mitigating circumstance of passion orobfuscation; and (4) in not crediting him with the period ofhis preventive detention.

The elements of the crime of illegal detention, as defined inArticle 267 of the Revised Penal Code, are: (1) that theoffender is a private individual; (2) that he kidnaps or detains

another, or in any other manner deprives the latter of hisliberty; (3) that the act of detention or kidnapping must be


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illegal; and (4) in the commission of the offense, any of thefollowing circumstances is present:

(a) that the kidnapping or detention last formore than 5 days; or

(b) that it is committed simulating publicauthority; or

(c) that any serious physical injuries are inflictedupon the person kidnapped or detained orthreats to kill him are made; or

(d) that the person kidnapped or detained is aminor, female, or a public officer. (Reyes,Revised Penal Code 1975 Revised Edition, Book11, page 468)

The issue in this review of the aforesaid judgment revolvesaround the credibility of witnesses, i.e., whether or not thetrial court was correct in giving more weight to thetestimonies of the prosecution witnesses than to that of thetestimony of appellant, in finding him guilty of the offensecharged and, in sentencing him to reclusion perpetua.

In the matter of credibility of witnesses, the rule is nowsettled that "... [u]nless there is a showing that the trial courthad overlooked, misunderstood or misapplied some fact orcircumstance of weight and substance that would have

affected the result of the case, the appellate court will notdisturb the factual findings of the lower court. For, havinghad the opportunity of observing the demeanor and behaviorof the witnesses while testifying, the trial court, more thanthe reviewing tribunal, is in a better position to gauge theircredibility, and properly appreciate the relative weight of theoften conflicting evidence for both parties." (People vs.Ablaza, 30 SCRA 173,176)

In the case at bar, We find no justification to overturn thejudgment of the trial court giving credence to the

declarations of five (5) witnesses, three (3) of whom are

policemen who did not know appellant before the incident.The records of the case are convincing enough that Mercadoforcibly brought Yvonne from place to place so that the latterwould reveal the whereabouts of Susan, his common-law-wife. For almost five (5) hours, he held Yvonne in a storebefore he was subdued. Pictures of the incident (Exhibits D,D-1 to D-4) clearly show appellant's hand around the neck ofcomplainant, with a knife poked at it. On the other hand, as

correctly observed by the trial court, "[i]f it was true that itwas the complainant who tried to stab the accused and itwas the latter who succeeded in subduing the complainant,the incident would not have lasted several hours andattracted a throng of onlookers and policemen." (p. 43, Rollo)

The argument advanced by the defense that appellantshould be convicted of grave coercion only since his purposewas "to force Miss Yvonne Baylon to produce Miss SusanBaylon" (p. 38, Rollo), is without merit. In the Ablaza case(supra), "the victim was actually restrained or deprived of herfreedom, and that makes proper the prosecution of theherein accused under Article 267 of the Revised Penal Code.The surrounding circumstances make it clear that the mainpurpose of Annabelle's detention was to coerce her intowithdrawing her previous charges against appellant Ablaza,thus obstructing the administration of justice." (p. 178, Ibid)The extant evidence on record shows that "the accused heldcomplainant because he wanted her to produce her sister,Susan, who was the common-law wife of the accused." (p.44, Rollo)

The mitigating circumstance of obfuscation arising from thedesire to compel Susan to live with him cannot be invoked infavor of the accused whose relationship with her wasillegitimate. The obfuscation must arise from lawfulsentiments.

We agree, however, with appellant that he should be creditedwith the period of his preventive detention. He has beendetained since September 2, 1979 and, therefore, inaccordance with Article 29 of the Revised Penal Code, the


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period of his preventive detention should be deducted fromthe term of his sentence.

WHEREFORE, the decision appealed from is AFFIRMED, withcosts. Appellant should be credited with the full time of hispreventive imprisonment upon a showing that he agreed toabide by the same disciplinary rules imposed upon convictedprisoners, otherwise, he shall be credited with four-fifths (4/5)of the time of such preventive imprisonment.

SO ORDERED.

Teehankee, Actg. C.J., (Chairman), Melencio-Herrera, Plana,Gutierrez, Jr. and De la Fuente, J., concur.

G.R. No. 84048 February 15, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.LETICIA SANIDAD DE DEL SOCORRO, defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for defendant-appellant.

PADILLA, J.:

In an Information docketed as Criminal Case No. 57828 of theRegional Trial Court of Pasig, Metro Manila, Leticia Sanidadde Del Socorro was charged with the crime of Kidnappingcommitted as follows:

That on or about the 11th day of February,1984, in the Municipality of Mandaluyong, MetroManila, Philippines, and within the jurisdiction ofthis Honorable Court, the above-namedaccused, did, then and there wilfully, unlawfullyand feloniously kidnap one CLAIRE SANCHEZ, aminor below seven (7) years old, for the purposeof permanently separating said child fromEVELYN SANCHEZ y TEJERO and ANTONIOSANCHEZ parents of the said child andthereafter sold to one DRA. APOLONIAVILLAMAYOR, in the amount of P700.00.

The defendant was duly arrested and brought before thecourt. When arraigned, she pleaded "not guilty" to the crime

charged in the Information. She was placed on trial and afterhearing the evidence adduced during the trial, Judge


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Domingo R. Garcia found the defendant guilty of the crimecharged in the Information and sentenced her to suffer thepenalty ofreclusion perpetua, with the accessory penaltiesprovided for by law, without pronouncement as to costs.

From this sentence, the defendant has appealed to thisCourt.

The evidence for the prosecution shows that between 10:00o'clock and 11:00 o'clock in the morning of 11 February1984, while Evelyn Sanchez was in her residence at No. 162Kalentong St., Mandaluyong, Metro Manila, cooking food forlunch, her four-year old daughter named Claire Sanchez wentout of the house to play with other children. After she hadfinished cooking, Evelyn called her child to get inside and eather lunch. Receiving no response, she went out of the houseand looked for her child in the neighborhood. But the childwas nowhere to be found. She inquired from the otherchildren who were playing where her daughter Claire wasand she was informed that Claire was taken by a womanwhom the children thought was the aunt of Claire. She wasalso informed that her child had resisted in going with thewoman and cried for her mother, but the woman carried thechild and got on board a jeepney and left the place. Thedisappearance of Claire Sanchez was, consequently, reportedto the Mandaluyong police. 1

Several days after the disappearance of the cold, thedistraught mother was informed by a relative that a certain

doctor in Angono, Rizal, had bought a child who fitted thedescription of her daughter, Claire. 2 Forthwith, she went toAngono, Rizal and with some town policemen, went to seethe lady physician, one Dr. Villamayor, who told thepolicemen that she had given the child to her aunt whosehouse was at E. de la Paz Street. The child was then takenfrom the aunt of the doctor and brought to the municipalbuilding of Angono where she was re-united with her mother.The lady physician advised the mother and the policemenhowever, not to leave immediately as the woman whobrought the child to her was coming back on that day to

collect some money.3

The lady physician, Dr. Apolonia Merced Villamayor, declaredthat at about 10:30 o'clock in the evening of 11 February1984, a woman, whom she later identified to be the accused,Leticia Sanidad de Del Socorro, came to her clinic at No. 91Int. Quezon Ave., Angono, Rizal, with a baby girl. She askedthe accused what was wrong with the child and the accusedanswered that nothing was wrong with the child but that shewanted the lady physician to take care of the child, whom

she referred to as her daughter, because her husband haddied just two (2) months ago and she could not afford to feedher brood of four (4) girls and two (2) boys. The accused alsoasked for the amount of P700.00, as a "donation to enableher to open a small sari-sari store. Feeling pity andcompassion for the child, she gave the accused P400.00which she had at the time, and told her to come back thefollowing Saturday for the balance. After the accused hadleft, she gave the child to her spinster aunt, LourdesSaguinsin, who lived in E. de la Paz St., Angono, Rizal.

The following Saturday, two (2) policemen from Angono,Rizal, came to her clinic and inquired if she had seen a girl ofabout four (4) years of age. She told the policemen that achild was given to her for adoption the previous Saturday,and that she gave the child to her aunt Lourdes. She also toldthe policemen that the woman who brought the child to herwas coming back that day to collect the balance of P300.00.She asked them to wait for her.

At about 10:00 o'clock in the evening, sure enough the

accused came back to the clinic. Dr. Villamayor pointed outthe accused to the policemen who then arrested her andbrought her to the municipal building for investigation. 4

The accused admitted having brought the child, ClaireSanchez, to Dr. Villamayor in Angono, Rizal. But she deniedhaving kidnapped the child or having sold her to the doctor.Her version of the incident, as testified to by her in court, isthat at about 11:00 o'clock in the morning of 11 February1984, while she was on her way home to the JavierCompound, San Francisco Village, Muzon, Taytay, Rizal, she

saw the child, Claire, standing on the sidewalk in front of the


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Jose Rizal College in Mandaluyong. The child was crying andwhen she asked why, the child told her that two (2) childrenhad quarelled with her. The child also told her that her lolahad refused to take her along. She asked the child where shewas living, but the child did not point to any particular placeor direction. Out of pity for the child, she brought the childalong with her. They waited for a bus for Angono, Rizal, andupon reaching Angono, she entrusted the child to Dr.

Villamayor for safekeeping. She denied having asked orreceived money from Dr. Villamayor. 5

In this appeal, the defendant-appellant, through counsel,raises mainly the question of credibility of witnesses.Defendant-appellant assails the trial court for giving weightand credence to the testimony of the witnesses for theprosecution despite the contradictions and inconsistencies intheir testimony which would render them doubtful andunreliable.

We find, however, that the variance between the testimonyof the prosecution witnesses in court and their swornstatements, as well as the alleged contradictions andinconsistencies pointed out by the appellant in her Brief, arenot substantial as to destroy their credibility. The allegedvariance refers to minor details which would tend to show thesincerity of the witnesses and the absence of connivancebetween them.

Besides, the testimony of the witnesses for the prosecution,

unlike the denial of the defendant-appellant, appears to beconsistent with the truth and the natural course of things.Furthermore, these witnesses had no motive to falsify thetruth and impute to the defendant-appellant, whom they metonly on the occasion complained of, the commission of sograve an offense as kidnapping of a minor child.

The claim of the defendant-appellant that the child, ClaireSanchez, went voluntarily with her, cannot be givencredence. Evelyn Sanchez, the mother of the child, Claire,declared that when she asked her daughter upon their

reunion if she went voluntarily with the defendant-appellant,

the child answered that she did not. Evelyn further declaredthat when she asked the children in the neighborhood, withwhom her daughter was playing, if Claire had resisted, thechildren answered that Claire had resisted, so that theaccused had to carry her to the jeep. 6

Besides, the defendant-appellant herself testified that whenshe picked up the child in Mandaluyong, her only thought

was to bring the child to Dr. Villamayor in Angono, Rizal. 7She did not bring the child to her (defendant's) own home inMuzon, Taytay, Rizal even if this place is nearer than Angono,because, according to the defendant, she already has manychildren of her own and they have no food to eat. 8 But if shereally pitied the child whom she described as crying on thesidewalk, why, it can be asked, did she not bring her to thenearest police station in Mandaluyong And, why did she thinkonly of Dr. Villamayor who, according to her, she did noteven know personally, but only in name? 9Her explanation isas follows:

Q Why of all people in thePhilippines in general Taytay andAngono in particular, why do youhave to entrust this child to Dr.Villamayor?

A Because I trusted Dr. Villamayorin the same manner that shetrusted me and I know where we

will give the child.10

Is it possible then that the defendant-appellant went directlyto Dr. Villamayor because of the common knowledge in theneighborhood that her spinster aunt wanted to adopt thechild? 11 One, of course, can only surmise.

To cut down the illicit traffic of children, we urge theprosecution of persons to whom children are sold or givenaway for a valuable consideration. Oftentimes, it is only theabductor or kidnapper who is prosecuted. Yet, the person to

whom the kidnapped child is given and who may have


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wittingly or unwittingly given the motivation for theabduction, goes scot-free, even as the intention of thisperson is to keep and raise the child as his own. By keepingthe child, under these circumstances, is he not guilty ofserious illegal detention?

Back to the case at bar, it is our opinion, and we so hold, thatthe evidence adduced during the trial is sufficient to justify

the conclusions of the trial court. Therefore, the judgment ofthe trial court should be affirmed.

WHEREFORE, the judgment appealed from is herebyAFFIRMED, without pronouncement as to costs.

SO ORDERED.

Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

October 22, 1992

G.R. No. 75954PEOPLE OF THE PHILIPPINES, petitioner,vs.HON. DAVID G. NITAFAN, Presiding Judge, RegionalTrial Court, Branch 52, Manila, and K.T. LIM aliasMARIANO LIM, respondents.

BELLOSILLO, J

,J.:

Failing in his argument that B.P. 22, otherwise known as theBouncing Check Law, is unconstitutional, 1 privaterespondent now argues that the check he issued, amemorandum check, is in the nature of a promissory note,hence, outside the purview of the statute. Here, his argumentmust also fail.

The facts are simple. Private respondent K.T. Lim wascharged before respondent court with violation of B.P. 22 inan Information alleging

That on . . . January 10, 1985, in the City of Manila . . . thesaid accused did then and there wilfully, unlawfully andfeloniously make or draw and issue to Fatima CortezSasaki . . . Philippine Trust Company Check No. 117383 datedFebruary 9, 1985 . . . in the amount of P143,000.00, . . . wellknowing that at the time of issue he . . . did not havesufficient funds in or credit with the drawee bank . . . whichcheck . . . was subsequently dishonored by the drawee bank


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for insufficiency of funds, and despite receipt of notice ofsuch dishonor, said accused failed to pay said Fatima CortezSasaki the amount of said check or to make arrangement forfull payment of the same within five (5) banking days afterreceiving said notice. 2

On 18 July 1986, private respondent moved to quash theInformation of the ground that the facts charged did not

constitute a felony as B.P. 22 was unconstitutional and thatthe check he issued was a memorandum check which was inthe nature of a promissory note, perforce, civil in nature. On1 September 1986, respondent judge, ruling that B.P. 22 onwhich the Information was based was unconstitutional,issued the questioned Order quashing the Information.Hence, this petition for review on certiorari filed by theSolicitor General in behalf of the government.

Since the constitutionality of the Bouncing Check Law hasalready been sustained by this Court in Lozano v. Martinez 3and the seven (7) other cases decided jointly with it, 4 theremaining issue, as aptly stated by private respondent in hisMemorandum, is whether a memorandum check issuedpostdated in partial payment of a pre-existing obligation iswithin the coverage of B.P. 22.

Citing U.S. v. Isham, 5 private respondent contends thatalthough a memorandum check may not differ in form andappearance from an ordinary check, such a check is given bythe drawer to the payee more in the nature of memorandum

of indebtedness and, should be sued upon in a civil action.

We are not persuaded.

A memorandum check is in the form of an ordinary check,with the word memorandum, memo or mem writtenacross its face, signifying that the maker or drawer engagesto pay the bona fide holder absolutely, without any conditionconcerning its presentment. 6 Such a check is an evidence ofdebt against the drawer, and although may not be intendedto be presented, 7 has the same effect as an ordinary check,

8 and if passed to the third person, will be valid in his handslike any other check. 9

From the above definition, it is clear that a memorandumcheck, which is in the form of an ordinary check, is still drawnon a bank and should therefore be distinguished from apromissory note, which is but a mere promise to pay. Ifprivate respondent seeks to equate memorandum check with

promissory note, as he does to skirt the provisions of B.P. 22,he could very well have issued a promissory note, and thiswould be have exempted him form the coverage of the law.In the business community a promissory note, certainly, hasless impact and persuadability than a check.

Verily, a memorandum check comes within the meaning ofSec. 185 of the Negotiable Instruments Law which defines acheck as a bill of exchange drawn on a bank payable ondemand. A check is also defined as [a] written order orrequest to a bank or persons carrying on the business ofbanking, by a party having money in their hands, desiringthem to pay, on presentment, to a person therein named orbearer, or to such person or order, a named sum of money,citing 2 Dan. Neg. Inst. 528; Blair v. Wilson, 28 Gratt.(Va.)170; Deener v. Brown, 1 MacArth.(D.C.) 350; In re Brown, 2Sto. 502, Fed. Cas. No. 1,985. See Chapman v. White, 6 N.Y.412, 57 Am. Dec 464. 10 Another definition of check is that is[a] draft drawn upon a bank and payable on demand, signedby the maker or drawer, containing an unconditional promiseto pay a sum certain in money to the order of the payee,

citing State v. Perrigoue, 81 Wash, 2d 640, 503 p. 2d 1063,1066. 11

A memorandum check must therefore fall within the ambit ofB.P. 22 which does not distinguish but merely provides that[a]ny person who makes or draws and issues any checkknowing at the time of issue that he does not have sufficientfunds in or credit with the drawee bank . . . which check issubsequently dishonored . . . shall be punished byimprisonment . . . (Emphasis supplied ). 12 Ubi lex nodistinguit nec nos distinguere debemus.


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But even if We retrace the enactment of the BouncingCheck Law to determine the parameters of the concept ofcheck, We can easily glean that the members of the thenBatasang Pambansa intended it to be comprehensive as toinclude all checks drawn against banks. This was particularlythe ratiocination of Mar. Estelito P. Mendoza, co-sponsor ofCabinet Bill No. 9 which later became B.P. 22, when inresponse to the interpellation of Mr. Januario T. Seo, Mr.

Mendoza explained that the draft or order must be addressedto a bank or depository, 13 and accepted the proposedamendment of Messrs. Antonio P. Roman and Arturo M.Tolentino that the words draft or order, and certain termswhich technically meant promissory notes, wherever theywere found in the text of the bill, should be deleted since thebill was mainly directed against the pernicious practice ofissuing checks with insufficient or no funds, and not to draftswhich were not drawn against banks. 14

A memorandum check, upon presentment, is generallyaccepted by the bank. Hence it does not matter whether thecheck issued is in the nature of a memorandum as evidenceof indebtedness or whether it was issued is partial fulfillmentof a pre-existing obligation, for what the law punishes is theissuance itself of a bouncing check 15 and not the purposefor which it was issuance. The mere act of issuing a worthlesscheck, whether as a deposit, as a guarantee, or even as anevidence of a pre-existing debt, is malum prohibitum. 16

We are not unaware that a memorandum check may carry

with it the understanding that it is not be presented at thebank but will be redeemed by the maker himself when theloan fall due. This understanding may be manifested bywriting across the check Memorandum, Memo or Mem.However, with the promulgation of B.P. 22, suchunderstanding or private arrangement may no longer prevailto exempt it from penal sanction imposed by the law. Torequire that the agreement surrounding the issuance ofcheck be first looked into and thereafter exempt suchissuance from the punitive provision of B.P. 22 on the basis ofsuch agreement or understanding would frustrate the very

purpose for which the law was enacted to stem theproliferation of unfunded checks. After having effectively

reduced the incidence of worthless checks changing hands,the country will once again experience the limitlesscirculation of bouncing checks in the guise of memorandumchecks if such checks will be considered exempt from theoperation of B.P. 22. It is common practice in commercialtransactions to require debtors to issue checks on whichcreditors must rely as guarantee of payment. To determinethe reasons for which checks are issued, or the terms and

conditions for their issuance, will greatly erode the faith thepublic responses in the stability and commercial value ofchecks as currency substitutes, and bring about havoc intrade and in banking communities. 17

WHEREFORE, the petition is GRANTED and the Order ofrespondent Judge of 1 September 1986 is SET ASIDE.Consequently, respondent Judge, or whoever presides overthe Regional Trial Court of Manila, Branch 52, is herebydirected forthwith to proceed with the hearing of the caseuntil terminated.

SO ORDERED.

Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino,Medialdea, Regalado, Davide, Jr., Romero, Nocon, Bellosilloand Melo, JJ., concur.

Narvasa, C.J., is on leave.


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G.R. No. 102645. April 7, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROMEO PADICA y LORICA, LESLIE GANS y MELENDRES,FLORENTINO FABRIGAS, ROMEO PRADEZ, LEONARDOMARAJAS, LEOPOLDO MARAJAS and LEON MARAJAS,JR. y RAMOS, ** accused. LEON MARAJAS, JR. y RAMOS,accused-appellant.

The Solicitor General for plaintiff-appellee.

Angara, Abello, Concepcion, Regala & Cruz for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES;UNINHABITED PLACE; PRESENT WHERE ACCUSEDDELIBERATELY CHOSE DESOLUTION OF PLACE TOPERPETRATE CRIME FAR FROM GAZE OF POTENTIALEYEWITNESSES; APPRECIATED THOUGH NOT ALLEGED ININFORMATION. Although the trial court and both partiesherein have again passed sub silentio thereon, it is evidentthat the aggravating circumstance of uninhabited place was

present since appellant and his co-accused obviously anddeliberately chose the desolation and isolation of thesugarcane plantation to perpetrate the crime far from thegaze of potential eyewitnesses. This circumstance isunderscored by the fact that they committed the crime atabout 12:00 noon, a time of day when any passersby orassistance could hardly be expected in the vicinity of thelocus criminis. This aggravating circumstance of despobladoshould, therefore, be considered against appellant even if itwas not alleged in the informations since it was duly proved.

2. ID.; ID.; ABUSE OF SUPERIOR STRENGTH; PRESENT WHEREACCUSED DELIBERATELY RESORTED TO COLLECTIVESTRENGTH IN OVERPOWERING VICTIM'S DEFENSE. Abuseof superior strength was likewise present, for the accuseddeliberately resorted to their collective strength for thepurpose of overpowering whatever feeble defense the poorFrancis Banaga could offer. They thus insured thecommission of the crime with practically no risk at all to

themselves.

3. ID.; ID.; TREACHERY; PRESENT WHERE ASSAULT ISSUDDEN AND UNEXPECTED AND VICTIM DIVESTED OFOPPORTUNITY TO EFFECTIVITY RESIST OR ESCAPE. Therewas treachery since, under the aforestated circumstances,the victim was lured by his killers into going with them toLaguna without the slightest inkling of their nefarious design,coupled with the sudden and unexpected assault by themalefactors on the hapless victim in the isolated sugarcaneplantation in Calamba, which thereby divested him of anopportunity either to effectively resist or to escape.

4. ID.; ID.; ABUSE OF SUPERIOR STRENGTH AND CRAFTABSORBED IN TREACHERY. Under the factual featurespresent in the commission of the crime, however, we areinclined to grant that the circumstance of superior strengthshould not be appreciated distinctly but should be consideredas being absorbed in and by treachery, and the same is truewith regard to the allegation of craft. Hence, abuse ofsuperior strength may not be taken into account separately

in this case, either as a qualifying or as an aggravatingcircumstance.

5. ID.; MURDER; WHERE TAKING OF VICTIM FROM ONE PLACETO ANOTHER INCIDENTAL TO BASIC PURPOSE TO KILL CRIMEIS MURDER; NOT CONVERTED TO KIDNAPPING BY DEMANDFOR RANSOM WHERE VICTIM NOT DETAINED OR DEPRIVEDOF LIBERTY. We have consistently held that where thetaking of the victim was incidental to the basic purpose tokill, the crime is only murder, and this is true even if, beforethe killing but for purposes thereof, the victim was taken

from one place to another. Thus, where the evident purpose


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of taking the victims was to kill them, and from the acts ofthe accused it cannot be inferred that the latter's purposewas actually to detain or deprive the victims of their liberty,the subsequent killing of the victims constitute the crime ofmurder, hence the crime of kidnapping does not exist andcannot be considered as a component felony to produce acomplex crime of kidnapping with murder. In fact, as we heldin the aforecited case of Masilang, et al., although the

accused had planned to kidnap the victim for ransom butthey first killed him and it was only later that they demandedand obtained the money, such demand for ransom did notconvert the crime into kidnapping since no detention ordeprivation of liberty was involved, hence the crimecommitted was only murder. That from the beginning of theircriminal venture appellant and his bothers intended to killthe victim can readily be deduced from the manner by whichthey swiftly and cold-bloodedly snuffed out his life once theyreached the isolated sugarcane plantation in Calamba,Laguna. Furthermore, there was no evidence whatsoever to

show or from which it can be inferred that from the outsetthe killers of the victim intended to exchange his freedom forransom money. On the contrary, the demand for ransomappears to have arisen and was consequently made as anafterthought, as it was relayed to the victim's family verymuch later that afternoon after a sufficient interval forconsultation and deliberation among the felons who hadkilled the victim around five hours earlier.

6. ID.; KIDNAPPING; ESSENTIAL ELEMENT THEREOF; CASE ATBAR. The essential element in the crime of kidnapping thatthe victim must have been restrained or deprived of hisliberty, or that he was transported away against his will withthe primary or original intent to effect that restraint, isabsent in this case. The malefactors evidently had onlymurder in their hearts when they invited the trusting FrancisBanaga to go with them to Laguna, and not to confine ordetain him for any length of time or for any other purpose.

7. ID.; ID.; IMPOSABLE PENALTY RAISED TO DEATH WHERECRIME PERPETRATED FOR RANSOM; CURTAILMENT OF

FREEDOM OF MOVEMENT WITHOUT DETERMINANT INTENTAND DEPRIVATION OF LIBERTY FOR APPRECIABLE PERIOD OF

TIME CONSTITUTE COERCION. Under Article 267 of theRevised Penal Code, the circumstance that the kidnapping isperpetrated for the purpose of ransom raises the imposablepenalty to death. It is essential, however, that the element ofdeprivation or restraint of liberty of the victim be present.The fact alone that ransom money is demanded would notper se qualify the act of preventing the liberty of movementof the victim into the crime of kidnapping, unless the victim

is

Tomio Lamera

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