EN BANC
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
148518
April 15, 2004
-versus-
NARCISO
SALDAÑA
(AT LARGE),ELMER ESGUERRA
(AT
LARGE),FERNANDO MORALES,
AND ARTURO
MALIT,
Accused,
FERNANDO MORALES
AND ARTURO MALIT,
Appellants.
D E C I S I O N
PER
CURIAM:
On automatic review is
the decision[1]
dated February 2, 1999 of the Regional Trial Court of San Fernando,
Pampanga,
Branch 47, in Criminal Case No. 8371, finding appellants Fernando
Morales
and Arturo Malit, and their co-accused Narciso Saldaña and Elmer
Esguerra guilty of the crime of kidnapping for ransom and imposing on
them
the penalty of death.
The crime
was
allegedly committed as follows:
"That on or about
the
9th day of November, 1994, in the municipality of Bacolor, province of
Pampanga, Philippines, and within the jurisdiction of this Honorable
Court,
the above-named accused, conspiring and confederating together and
mutually
helping one another, did then and there wilfully, unlawfully and
feloniously,
abduct and kidnap Jefferson C. Tan, Joanna C. Tan, Jessie Anthony C.
Tan,
Malou Ocampo and Cesar Quiroz, while the latter were on board a L-300
van
with Plate No. CKW-785 at San Vicente, Bacolor, Pampanga, for the
purpose
of extorting ransom money from the parents of the said victims with
threat
to kill the said victims if their parents failed to deliver the ransom
money, that said victims were brought and detained in Bataan until the
father of victims, Feliciano Tan, paid and delivered to the aforesaid
accused
the amount of P92,000.00, Philippine Currency.
"All contrary to
law."[2]chanrobles virtual law library
Upon arraignment, all
four
accused pleaded not guilty to the offense charged. On October 9,
1995, three (3) of the accused, namely, Narciso Saldaña, Elmer
Esguerra
and appellant Fernando Morales, escaped from the Provincial Jail of
Pampanga.
However, appellant Morales appeared a month later and was
arrested.
Narciso Saldaña and Elmer Esguerra remained at large. As
to
both, the trial proceeded in absentia.[3]
The prosecution presented
four witnesses, namely, Jefferson Tan, Feliciano Tan, Senior Police
Officer
Antonio Dizon, Assistant Provincial Prosecutor Roman Razon, and Atty.
Eligio
Mallari.cralaw:red
Jefferson Tan, one of
the victims, testified that the kidnapping happened on November 9,
1994,
around 6:30 a.m. He was then on his way to Don Bosco Academy in
Bacolor,
Pampanga, on board their family L-300 van with plate no. CKW-785.[4]
With him were his brother, Jessie Anthony, his sister, Joanna, his
cousin,
Malou Ocampo, and their driver, Cesar Quiroz.[5]
Jefferson narrated that along the highway in San Vicente, Bacolor,
Pampanga,
the vehicle slowed down to steer clear of a damaged portion of the
road.
Suddenly a man—later identified as appellant Arturo Malit—poked a gun
at
their driver.[6]
Simultaneously, three other men entered the van. These three were
later identified as appellant Fernando Morales, Elmer Esguerra, and
Narciso
Saldaña.[7]
While appellant Arturo
Malit trained his gun at the driver, Elmer Esguerra took the driver’s
seat.
The other two malefactors blindfolded the five victims.[8]
The vehicle then sped off and later stopped for fuel at a gasoline
station.[9]
At that point, one Romeo[10]
Bautista joined the group.[11]
After one hour and thirty minutes of driving, they arrived at their
destination.
The blindfolds of the victims were removed, and Narciso Saldaña
ushered them into a small house located in a hilly area.[12]
Sensing that their kidnappers
would talk to his father, Jefferson Tan decided to write a note to his
father.[13]
Romeo Bautista and Narciso Saldaña then left to see his
father.
An hour later, three of their kidnappers—appellant Arturo Malit,
appellant
Fernando Morales, and Elmer Esguerra—ushered the five of them back into
the vehicle.[14]
They proceeded to a beach littered with big rocks. Subsequently,
two women came and fed them lunch.[15]
At 7:30 p.m., Saldaña
and Bautista arrived at the beach and took the victims to a small house
in Orani, Bataan, where they spent the night.[16]
They left Orani around 4:00 a.m. the following day and proceeded to an
uninhabited place full of trees and grass.[17]chanrobles virtual law library
Jefferson further testified
that he requested Bautista to allow him to speak with his father and so
later that morning, Bautista and Saldaña escorted him to
Balanga,
Bataan, to a PLDT office.[18]
He told his father that their abductors planned to send him home to get
the P2 million ransom.[19]
His father then negotiated with Romeo Bautista who agreed to reduce the
ransom to P 1.5 million.[20]
Subsequently, Bautista and Saldaña took Jefferson to Guagua,
Pampanga,
aboard a minibus.[21]
Bautista alighted at Cleluz, Lubao, while Saldaña remained with
him until they reached Sta. Cruz, Lubao. At Sta. Cruz,
Saldaña
transferred him onto a jeepney going to the town proper of Guagua.[22]
Before disembarking at San Pablo in Guagua, Saldaña instructed
Jefferson
to bring the ransom to the St. Peter and Paul Snack Center at 1:00 p.m.
later that day.[23]
According to Jefferson,
he arrived home about 10:30 a.m. and lost no time relaying to his
father,
Feliciano Tan, and the police the directives the kidnappers gave him.[24]
Upon the advice of the police, however, his father no longer allowed
him
leave to deliver the ransom money.[25]
Later, around 3:00 p.m., the kidnappers called and demanded an
explanation
from Feliciano Tan why the money was not delivered.[26]
He heard his father request for a lower ransom. The amount
finally
agreed upon was only P92,000.[27]
Feliciano Tan, the father
of the victims Jessie, Joanna, and Jefferson, testified that on
November
9, 1994 while he was tending to their grocery store at Sto.
Niño,
Guagua, Pampanga, an unknown person handed to him a handwritten letter
from Jefferson.[28]
The letter informed him that his children had been kidnapped. He
immediately called his wife, Nenita Co-Tan, and a family friend, Dr.
Ernesto
Santos, and all three of them went to Camp Crame to report the incident.[29]
Colonel Asel Tor was assigned by the Presidential Anti-Crime Commission
(PACC) to handle the case. Col. Tor then dispatched a unit headed
by Maj. Rey Aquino to investigate.[30]chanrobles virtual law library
At 8:05 the next morning,
Feliciano received a long distance call from Jefferson in Bataan.[31]
Jefferson said that the kidnappers planned to use him to get the ransom
money.[32]
Feliciano added that he talked with one of the kidnappers to negotiate
a lower ransom.[33]
At 10:00 a.m. of November 10, 1994, Jefferson arrived and narrated
their
ordeal.[34]
Since Feliciano could
not afford the ransom demanded, he did not let Jefferson go anymore.[35]
At 3:00 p.m. on November 10, 1994, the kidnappers called asking for an
explanation why Jefferson was not at the pickup site. He
explained
that Jefferson was in shock and could not return. When asked
about
the ransom money, he told the caller that he could only give
P92,000.
The caller agreed.[36]
He was then instructed to bring the ransom to Cleluz, Sta. Cruz, Lubao,
Pampanga, at 7:00 p.m. of the same day.[37]
Later, their driver,
Cesar Quiroz, arrived and relayed new instructions from the kidnappers
that the meeting was no longer going to be at Cleluz but at the bridge
of Sta. Cruz, Lubao.[38]
According to Feliciano, they proceeded to Sta. Cruz as
instructed,
arriving thirty minutes early.[39]
He asked Cesar to look for the kidnappers. A few minutes later,
Cesar
returned to tell him to proceed to Gumi, Lubao, which was on the other
side of the bridge.[40]
There, appellant Malit boarded the vehicle followed by appellant
Morales.[41]
The two told him that his children were in Gumi, about a kilometer
away.
When they reached Gumi, Malit asked for the money. Before showing
the money, however, Feliciano asked about the whereabouts of his
children.
Appellant Malit replied they were inside the L-300 van parked in front
of them.[42]
The exchange took place
and Elmer Esguerra handed him the keys to the L-300 van.[43]
When Feliciano got home, he called Maj. Rey Aquino of the PACC and told
him that the children were already safe.[44]
After that, he reported the incident to the police authorities in
Guagua
who took his sworn statement.[45]
SPO4 Antonio Dizon,
PNP Provincial Command, Brgy. Sto. Niño, San Fernando, Pampanga,
testified that at 10:00 a.m. of November 18, 1994, he investigated the
kidnapping for ransom of Jefferson C. Tan, Joanna C. Tan, Jessie
Anthony
C. Tan, Malou Ocampo, and Cesar Quiroz.[46]
During said investigation, Narciso Saldaña, one of the suspects
in the case, admitted participation in the kidnapping and revealed the
identities of his cohorts.[47]
SPO4 Dizon averred that because there was no available lawyer from the
Public Attorney’s Office at the time, he requested a certain Atty.
Eligio
Mallari, who was then following up on a case at the office, to assist
Narciso
Saldaña.[48]
Saldaña’s sister-in-law was also present.[49]
After Saldaña signed the sworn statement, it was sworn and
subscribed
to before Asst. Provincial Prosecutor Roman Razon.[50]chanrobles virtual law library
Asst. Provincial Prosecutor
Roman S. Razon testified that he was with SPO4 Dizon when Narciso
Saldaña’s
confession was taken and that he apprised Saldaña of the
consequences
of his confession.[51]
After Saldaña admitted the signature in the confession as his
own
and that it was signed with the assistance of Atty. Eligio Mallari, he
administered the oath and affixed his signature thereon as
administering
officer.[52]
Atty. Eligio P. Mallari,
a practicing lawyer who later became a Commissioner of Human Rights,
testified
that in the morning of November 18, 1994, while he was in the PNP
Investigation
Unit office located at Capitol Compound, San Fernando, Pampanga,
following
up a personal case, Sgt. Antonio Dizon approached him and informed him
that Narciso Saldaña, a suspect in a kidnapping case, wanted the
assistance of counsel.[53]
He requested an opportunity to confer with Saldaña, and after
hearing
that Saldaña wanted his assistance during the investigation, he
advised Saldaña of his constitutional rights in the Tagalog
dialect.[54]
He also testified that after he signed under the
notation
“Kaantabay ni” or “Assisted by,” they went to the office of Assistant
Provincial
Prosecutor Roman Razon.[55]
Appellant Fernando Morales
testified for the defense. He denied under oath that he willingly
participated in the kidnapping. He interposed the defense of
having
acted under the impulse of an uncontrollable fear. He averred
that
a day before the incident, his brother-in-law, Elmer Esguerra, offered
to help him secure a construction job at Floridablanca with a daily
wage
of P150.00.[56]
He and Elmer Esguerra planned to go together to ask permission from the
contractor to start working. They agreed to meet at 6:00 a.m. on
November 9, 1994, at Plaza Guagua, Pampanga.[57]chanrobles virtual law library
At the appointed time
and place, Elmer Esguerra arrived with another person, whom appellant
Morales
later came to know as Arturo Malit, now his co-appellant.[58]
They waited some more until two (2) more persons arrived.
Appellant
Morales identified these two as Narciso Saldaña and Romeo
Bautista.[59]
Shortly afterwards, they all took a jeepney to San Vicente, Bacolor,
Pampanga.
When they got there, Saldaña ordered the driver to stop.
Esguerra
then told appellants Morales and Malit to alight and wait at the corner
of the street for the contractor.[60]
A few minutes later,
Narciso Saldaña flagged an L-300 van and poked a gun at its
driver.[61]
He and appellant Malit got scared so they tried to walk away but they
didn’t
get very far because Elmer Esguerra, Romeo Bautista, and Narciso
Saldaña,
after taking over said vehicle, chased them.[62]
Bautista threatened to shoot them both if they didn’t board the
vehicle,
so they did.[63]
On the way to Mariveles,
Bataan, according to Morales, they pleaded to be released because they
did not want any involvement with the crime. However, Narciso
Saldaña
and his companions responded with more threats.[64]chanrobles virtual law library
They stayed in Mariveles
for an hour and a half before proceeding to Orani, Bataan, where they
spent
the night in a house belonging to Saldaña’s brother.[65]
According to appellant Morales, both he and appellant Malit were
allowed
to sleep in the same room as the children and the driver.[66]
He added that he and Malit cooked food for and attended to the needs of
the children.[67]
The next morning, they left for Lubao, Pampanga. In the afternoon
of November 10, 1994, he and Malit alighted at Lubao because Narciso
Saldaña
and Romeo Bautista told them to go home.[68]
Appellant Morales stated
that prior to November 8, 1994, he did not know his co-accused Arturo
Malit,
Narciso Saldaña, and Romeo Bautista.[69]
Neither did he know Feliciano Tan or any of his children before the
incident.[70]
He testified to knowing Elmer Esguerra since the latter is his
brother-in-law.[71]
On cross-examination,
appellant Morales declared that on November 22, 1994, he surrendered to
the police after his parents came to inform him that the police were
looking
for him.[72]
Later, he learned that Romeo Bautista was killed in an encounter with
PACC
agents.cralaw:red
Appellant ARTURO MALIT
testified also for the defense. He interposed the defense of
uncontrollable
fear of an equal or greater injury. He testified that on November
8, 1994, Romeo Bautista went to his house and invited him to work in a
construction job the next day in Floridablanca, Pampanga. Having
known Romeo Bautista for almost a month since they had occasion to work
together on a construction job at his sister’s house in Sta. Cruz,
Lubao,
Pampanga, he accepted the offer. At 5:00 a.m. the next day, both
of them went to Guagua, Pampanga, to fetch some more companions.[73]
At Guagua, they met
three persons whom he came to know as Elmer Esguerra, Narciso
Saldaña,
and appellant Fernando Morales.[74]
They proceeded to a waiting shed near Cabalantian supposedly to wait
for
their additional companions.[75]
Thirty (30) minutes had barely gone by when Narciso Saldaña then
flagged down a passing L-300 van and poked a gun at its driver.[76]
That caused him and Morales to get so scared that they started walking
away. Hardly reaching a distance of twenty (20) meters, they were
noticed by Saldaña, Esguerra and Bautista. The three
chased
them by using the van. Bautista then forced both of them into the
van at gunpoint.[77]chanrobles virtual law library
According to appellant
Malit, when he saw that the children were scared, he talked to them and
asked them to pray.[78]
He did not try to stop or tell his companions not to pursue their
nefarious
plan because he could not overcome his fear brought by the threats
earlier
made on him by Esguerra, Saldaña, and Bautista.[79]
Appellant Malit further
testified that they were transported to Mariveles, Bataan, where they
had
lunch in a small house.[80]
Later, they were taken to Orani, Bataan, to a house owned by
Saldaña’s
in-laws arriving there early in the evening of that same day.[81]
He tried to escape, but he saw Saldaña and Bautista posted at
the
door.[82]
He did not talk to any of the three who abducted them because he was
mad
at them.[83]
He also did nothing to tell Saldaña’s in-laws that he was not a
willing participant in the kidnapping.[84]
But when he heard Saldaña say something about killing the driver
and one of the children, he interceded and pleaded with Bautista not to
proceed with the killing.[85]
Appellant Malit also
testified that in the afternoon of the following day, Saldaña
and
Bautista brought him and appellant Morales back to Lubao, Pampanga,
where
they were allowed to alight at Sta. Cruz and go home.[86]
Then, Saldaña threatened to kill him if he reported the incident
to the police.[87]
Since then, he had seen neither appellant Morales nor Romeo Bautista.cralaw:red
Appellant Malit asserted
that he was not with the group that went back to Lubao to receive the
ransom
money from Mr. Tan.[88]
He denied that he knew Jefferson or his father, Feliciano Tan, before
November
9, 1994.[89]
He claimed that the only reason he and Morales were implicated in the
kidnapping
was because Bautista brought him along.[90]
He also denied poking a gun at Cesar Quiroz, insisting that it was
Saldaña
who did.[91]
On cross-examination,
appellant Malit reiterated that prior to November 9, 1994 he did not
know
Elmer Esguerra, Fernando Morales, or Narciso Saldaña.[92]
On February 2, 1999,
the trial court rendered its decision, disposing as follows:
WHEREFORE, and in the
light of all the foregoing discussions, the Court renders judgment
finding
the accused Narciso Saldaña, Elmer Esguerra, Arturo Malit and
Fernando
Morales guilty beyond reasonable doubt of the crime charged and imposes
upon the aforenamed accused the penalty of DEATH. The said
accused
are likewise ordered to indemnify the complainant the amount of
P92,000.00,
which represents the ransom money the latter parted with. No
other
civil indemnification may be made as no other evidence on this aspect
was
adduced.cralaw:red
SO ORDERED.[93]chanrobles virtual law library
On February 17, 1999,
appellant Malit filed a motion for reconsideration and new trial.[94]
Appellant Malit contended that the trial court’s decision did not
clearly
and distinctly state the facts and the law upon which it is based, and
that the trial court overlooked facts and circumstances which if
considered
would alter the result. In his supplemental motion for new trial,
appellant Malit further sought to introduce Cesar Quiroz’s testimony.cralaw:red
On July 20, 1999, the
trial court denied the motion.[95]
The trial court ruled that appellant Malit’s motion was simply asking
the
trial court to give a second look on the evidence it has passed upon
and
clearly contained in its decision. It further found that the
grounds
invoked do not justify a new trial as it did not require the
presentation
of newly discovered evidence.cralaw:red
Before this Court for
automatic review of the death sentence imposed on each of them,
appellants
Arturo Malit and Fernando Morales filed separate briefs.cralaw:red
Appellant Malit submits
the following assignment of errors:
I.
THE HONORABLE COURT
A QUO ABUSED ITS POWER AND DISCRETION WHEN IT TOTALLY DISREGARDED THE
TESTIMONY
OF ARTURO MALIT WHICH WAS NOT REBUTTED BY THE PROSECUTION.
II. THE HONORABLE COURT
A QUO ABUSED ITS POWER AND DISCRETION WHEN IT DEPRIVED ACCUSED ARTURO
MALIT
THE RIGHT TO A NEW TRIAL.
III. THE HONORABLE COURT
A QUO SHOULD NOT HAVE GIVEN WEIGHT TO THE EXTRAJUDICIAL CONFESSION OF
NARCISO
SALDAÑA SINCE IT VIOLATED THE BASIC CONSTITUTIONAL REQUIREMENT
OF
THE RIGHT TO COUNSEL OF CHOICE.
IV.
THE PROSECUTION DID
NOT PERFORM ITS DUTY FAIRLY AND IMPARTIALLY BY SUPPRESSING IMPORTANT
AND
VITAL EVIDENCE AND TESTIMONY OF WITNESSES IN ORDER TO ATTAIN A FAIR
TRIAL
AND DISPENSATION OF JUSTICE.[96]
Appellant Fernando Morales
assigns two errors, contending that the trial court erred—
I. IN FAILING TO
APPRECIATE
THE EXEMPTING CIRCUMSTANCES OF IRRESISTIBLE FORCE AND/OR UNCONTROLLABLE
FEAR OF AN EQUAL OR GREATER INJURY.
II. IN CONVICTING THE
ACCUSED-APPELLANTS
WHEN CONSPIRACY WAS NOT PROVEN BEYOND REASONABLE DOUBT.[97]
Briefly put, in our
view, the main issues for resolution are (1) whether the trial court
erred
in not appreciating in appellants’ favor the defense of uncontrollable
fear of an equal or greater injury; (2) whether conspiracy was
adequately
proven; and (3) whether appellants’ guilt has been established beyond
reasonable
doubt.cralaw:red
Appellant Arturo Malit
contends that the trial court erred in giving weight and value to the
testimonies
of prosecution witnesses particularly Jefferson Tan and his father,
Feliciano
Tan. He insists that the evidence sufficiently proves that he was
merely forced to join the group at gunpoint.cralaw:red
He also contends that
the trial court committed a grave error in relying on the extrajudicial
confession of Narciso Saldaña to prove conspiracy.
According
to him, the testimonies of Atty. Eligio Mallari, the counsel who
assisted
Saldaña, and Asst. Provincial Prosecutor Roman Razon, before
whom
the extrajudicial confession was acknowledged, reveal that at no time
was
Narciso Saldaña informed of his constitutional right to counsel
of choice. Therefore, the confession was inadmissible in evidence.cralaw:red
Appellant Fernando Morales
similarly maintains that he acted due to an uncontrollable fear of an
equal
or greater injury. He argues that Romeo Bautista’s threat against
him and appellant Malit constituted a clear and imminent danger to
their
lives and instilled fear in them which made them incapable of acting
with
deliberate or criminal intent. This fear existed even at the time
they received the ransom from Feliciano Tan because at that time,
accused
Narciso Saldaña, Elmer Esguerra, and Romeo Bautista were only
one
(1) kilometer away. Had he not joined the group that met
Feliciano
Tan to get the ransom money as instructed, or had anything gone wrong
at
that time, their lives or the lives of their families would have been
endangered.cralaw:red
In addition, appellant
Morales submits that conspiracy has not been adequately proven.
Narciso
Saldaña’s confession, not having been identified in open court,
is inadmissible in evidence. The testimonies of Jefferson Tan and
his father, Feliciano Tan, likewise do not prove conspiracy.
These
two prosecution witnesses did not know that he and appellant Malit were
subjected to uncontrollable fear by Saldaña, Esguerra and
Bautista.chanrobles virtual law library
Appellants’ pleas are
without sufficient merit. We find no reason to reverse the trial
court’s judgment of conviction. A thorough review of the evidence
presented in this case leads to no other conclusion than that the crime
of kidnapping for ransom as defined and penalized in Article 267[98]
of the Revised Penal Code has been committed beyond reasonable doubt
against
the victims Jefferson C. Tan, Jessie C. Tan, Joanna C. Tan, Malou
Ocampo,
and Cesar Quiroz.cralaw:red
To begin with, we are
not persuaded to overturn the sworn statement of accused Narciso
Saldaña,
who admitted his participation in the kidnapping of the victims.
Extrajudicial confessions are presumed to be voluntary, and, in the
absence
of conclusive evidence showing that the declarant’s consent in
executing
the same has been vitiated, the confession will be sustained.[99]
The fact that it was the investigating officer, SPO4 Antonio Dizon, who
requested Atty. Eligio Mallari to assist Saldaña does not cast
doubt
on Atty. Mallari’s impartiality during the custodial
investigation.
Since there was no available lawyer from the Public Attorney’s Office
and
Saldaña had expressed his inability to procure the services of a
lawyer, it was incumbent upon the government, particularly the
investigating
officer, to provide Saldaña with a lawyer. Moreover,
appellants
do not cite bias or incompetence on the part of Atty. Mallari to assist
as counsel for the accused Saldaña. In fact, it clearly
appears
that Atty. Mallari duly performed his duty to advise Saldaña on
his constitutional rights to silence and to counsel. But Saldaña
insisted on making the extrajudicial confession in the presence of his
sister-in-law, voluntarily. His conviction is in order.cralaw:red
As for accused Elmer
Esguerra, we find that the testimonies of prosecution witnesses
Jefferson
Tan and Feliciano Tan on his criminal participation in the kidnapping
were
fully corroborated by the testimonies of appellants Malit and
Morales.
There is no doubt, in our mind, as to his culpability for the crime
charged.cralaw:red
As to herein appellants
Morales and Malit, we find here a fit occasion to reiterate our ruling
in the case of People v. Del Rosario.[100]
Under Article 12 of the Revised Penal Code,[101]
a person is exempt from criminal liability if he acts under the
compulsion
of an irresistible force, or under the impulse of an uncontrollable
fear
of equal or greater injury, because such person does not act with
freedom.[102]
In Del Rosario,[103]
however, we held that for such defense to prosper the duress, force,
fear
or intimidation must be present, imminent and impending, and of such
nature
as to induce a well-grounded apprehension of death or serious bodily
harm
if the act be done. A threat of future injury is not enough.[104]chanrobles virtual law library
In this case, the evidence
on record shows that at the time the ransom money was to be delivered,
appellants Arturo Malit and Fernando Morales, unaccompanied by any of
the
other accused, entered the van wherein Feliciano Tan was. At that
time Narciso Saldaña, Elmer Esguerra and Romeo Bautista were
waiting
for both appellants from a distance of about one (1) kilometer.[105]
By not availing of this chance to escape, appellants’ allegation of
fear
or duress becomes untenable.[106]
We have held that in order that the circumstance of uncontrollable fear
may apply, it is necessary that the compulsion be of such a character
as
to leave no opportunity to escape or self-defense in equal combat.[107]
Moreover, the reason for their entry to the van, where the father of
the
victims was, could be taken as their way of keeping Feliciano Tan under
further surveillance at a most critical time.cralaw:red
Appellant Morales’ contention
that their families were similarly threatened finds no support in the
evidence.
The records are bereft of any showing that such threats to appellants’
families were made at all. We have held in People v. Borja[108]
that duress as a valid defense should not be speculative or
remote.
Even granting arguendo that Saldaña, Bautista, and Esguerra
threatened
to harm appellants’ families to coerce appellants to receive the ransom
money at Gumi, Lubao, such threats were not of such imminence as to
preclude
any chance of escape. In fact, as already discussed, appellants
had
a real chance to escape when they went to Feliciano’s van. Under
the circumstances, even if true, the fear that appellants allegedly
suffered
would not suffice to exempt them from incurring criminal liability.cralaw:red
Moreover, kidnap victim
Jefferson Tan categorically testified that each of the kidnappers acted
of his own accord and that nobody commanded anyone.[109]
According to Jefferson, while appellant Malit trained the gun on driver
Cesar Quiroz, appellant Morales opened the right-side front door of the
van at the same time that accused Elmer Esguerra took the wheel.[110]
The trial court found Jefferson’s testimony worthy of credence.
It
disbelieved appellants’ attempts, while on the witness stand, to put
all
the blame on co-accused Narciso Saldaña and Elmer Esguerra who,
up to now, remain at large.chanrobles virtual law library
Based on the evidence
at hand, we find no sufficient reason to disturb the trial court’s
assessment
of the defense presented by appellants. The crime of kidnapping
is
not committed on impulse. It requires meticulous planning to
determine
who would be the prospective victim or victims. Its execution
needs
precise timing and coordination among the malefactors. It is
improbable
that a group of kidnappers would risk the success of their well-planned
criminal scheme by involving unwilling persons, much less strangers,
who
could abort the kidnapping by refusing to cooperate in its execution.[111]
Worse, such unwilling companions could easily expose their plan to the
authorities and subsequently even testify against them in court.
Thus, we find the defense claimed by appellants neither logical nor
satisfactory,
much less consistent with human experience and knowledge. For
this
reason, we also agree that appellants’ version of the facts is unworthy
of credence, in the light of candid testimonies given by prosecution
witnesses.cralaw:red
Moreover, the assessment
of the credibility of witnesses and their testimonies is a matter best
undertaken by the trial court, who had a unique opportunity to observe
the witnesses firsthand and to note their demeanor, conduct and
attitude.[112]
Findings of the trial court on such matters are binding and conclusive
on the appellate court, unless some facts or circumstances of weight
and
substance have been overlooked, misapprehended, or misinterpreted.[113]
As reiterated in numerous cases, a witness who testifies in a clear,
positive,
and convincing manner and remains consistent on cross-examination is a
credible witness.[114]
This is especially so in this case, since prosecution witnesses
Jefferson
Tan and Feliciano Tan were not shown to have any ill motive to testify
against either appellant. When there is no evidence to indicate
that
the witness for the prosecution was moved by improper motive, the
presumption
is that such motive was absent, and that his testimony is entitled to
full
faith and credit.[115]
Appellant Arturo Malit’s
insistence that the trial court’s appreciation of the testimonies by
prosecution
witnesses was faulty deserves scant consideration. He failed to
specify
any reason why the testimonies of prosecution witnesses are not
entitled
to full faith and credit. Neither was it shown that their
testimonies
materially contradict each other, or that their testimonies were
unbelievable
and would not conform to human experience. Against appellant
Malit’s
bare assertions, we find Jefferson Tan’s testimony on the kidnapping
straightforward
and consistent even on cross-examination. In contrast,
appellants’
testimonies are conflicting. Thus, on one hand, appellant Malit
testified
that their alleged captors, their own co-accused, had released him and
appellant Morales in Lubao, Pampanga. On the other hand,
appellant
Morales declared in his brief that both of them were present in the van
with Feliciano Tan to receive the ransom. Considering the manner
by which the offense was executed and the ransom collected, we
entertain
no doubt that appellants were willing participants in the kidnapping of
Florencio Tan’s children.cralaw:red
Conspiracy exists when
two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.[116]
Where all the accused acted in concert at the time of the commission of
the offense, and it is shown by such acts that they had the same
purpose
or common design and were united in its execution, conspiracy is
sufficiently
established.[117]
It must be shown that all participants performed specific acts with
such
closeness and coordination as to indicate a common purpose or design to
commit the felony.[118]chanrobles virtual law library
In the present case,
the evidence shows that all the accused waited near a damaged portion
of
the highway in San Vicente, Bacolor, Pampanga. Said spot was
chosen
deliberately because the van in which they expected the victims to be
would
logically slow down to avoid the damaged part of the road.
Appellant
Arturo Malit poked a gun at the driver to stop the vehicle and enable
appellant
Fernando Morales and their co-accused, Elmer Esguerra and Narciso
Saldaña,
to board the vehicle.[119]
While appellant Malit had his gun still trained on the driver, Esguerra
took over the wheel while the others including appellant Fernando
Morales
blindfolded the occupants of the van.cralaw:red
When Romeo Bautista
and Narciso Saldaña accompanied Jefferson Tan to Balanga,
Bataan,
to arrange for the delivery of the ransom, appellants Arturo Malit and
Fernando Morales with their co-accused Elmer Esguerra, guarded the
victims.
Appellants attended to the needs of the victims. At the bridge in
Sta. Cruz, Lubao, appellants gave Feliciano Tan additional instructions
to proceed to Gumi where Elmer Esguerra waited with the children.
There, appellant Malit received the ransom and Esguerra handed the keys
to the van where the children were. These acts point to a close
coordination
indicating a common purpose or design to commit the felony of
kidnapping
for ransom. The circumstances under which appellants Malit and
Morales
participated in the commission of the kidnapping for ransom would not
justify
in any way their belated claim that they acted under an uncontrollable
fear of being killed by the other kidnappers. Rather, these
circumstances
establish the fact that appellants consciously concurred with the acts
of the other malefactors to kidnap the children of Feliciano Tan.cralaw:red
Appellant Malit stresses
that he did not try to escape from jail during the height of the lahar
flow in Pampanga on October 9, 1995. This is proof, according to
him, that he was innocent of the crime charged.[120]
But this argument is untenable, an obvious non-sequitur. It is
true
that flight has been held to be an admission of guilt yet it is also
well
settled that non-flight is not proof, much less conclusive proof, of
innocence.[121]chanrobles virtual law library
Appellant Malit also
faults the prosecution for not presenting driver Cesar Quiroz’s
affidavit,
which fails to name him (appellant Malit) as one of the abductors.[122]
Similarly, he assails the trial court’s order denying his motion for
new
trial based on newly discovered evidence.cralaw:red
As held by the trial
court, however, appellant Malit’s contentions are unfounded. The
matter of presentation of witnesses by the prosecution is not for
appellant
or even the trial court to decide.[123]
Section 5,[124]
Rule 110 of the Rules of Court expressly vests in the prosecutor the
direction
and control over the prosecution of a case. The determination of
which evidence to present rests upon him. As the prosecution had
other witnesses who could sufficiently prove the kidnapping for ransom,
it could dispense with the evidence to be provided by Cesar Quiroz.cralaw:red
Appellant Malit’s insistence
that the trial court erroneously denied him his right to new trial to
present
the testimony of Cesar Quiroz is likewise without merit. A motion
for new trial based on newly discovered evidence may only be granted if
the following concur: (a) the evidence is discovered after trial;
(b) such evidence could not have been discovered and produced at the
trial
even with the exercise of reasonable diligence; and (c) the evidence is
material, not merely cumulative, corroborative, or impeaching and of
such
weight that, if admitted, could probably change the judgment.[125]
In this case, the records
show that even before the trial, the “Sinumpaang Salaysay” of Cesar
Quiroz
dated November 18, 1994 was already available to appellant Malit.
In fact, during the inquest investigation, appellant Malit opted for a
preliminary investigation. As early as that stage, Cesar Quiroz
as
well as his salaysay was already available and by reasonable diligence
could have been obtained, discovered, and produced at the trial.
The records are bereft of any showing that appellant Malit exerted
efforts
to secure the attendance of Cesar Quiroz for the purpose of using him
as
defense witness.chanrobles virtual law library
For this Court to
allow a motion for new trial on grounds other than those provided in
Section
2,[126]
Rule 121 of the Rules of Court,[127]
the movant must cite peculiar circumstances obtaining in the case
sufficient
to warrant a new trial, if only to give the accused an opportunity to
establish
his innocence of the crime charged. Appellant Malit, however,
does
not cite any exceptional circumstance. In any case, we
scrutinized
the contents of Quiroz’s affidavit, but nowhere does it categorically
declare
that appellant Malit did not participate in the commission of the
crime.
Under the circumstances, the trial court properly denied his motion for
new trial.cralaw:red
The elements of the
crime of kidnapping and serious illegal detention are the
following:
(a) the accused is a private individual; (b) the accused kidnaps or
detains
another, or in any manner deprives the latter of his liberty; (c) the
act
of detention or kidnapping is illegal; and (d) in the commission of the
offense, any of the four circumstances mentioned in Article 267[128]
of the Revised Penal Code are present. The imposition of the
death
penalty is mandatory if the kidnapping was committed for the purpose of
extorting ransom. In the instant case, appellants cannot escape
the
penalty of death, inasmuch as it was sufficiently alleged and
indubitably
proven that the kidnapping had been committed for the purpose of
extorting
ransom.[129]
Three (3) members of
this Court although maintaining this adherence to the separate opinion
expressed in People v. Echegaray, G.R. No. 117472, February 7, 1997,
267
SCRA 682, that R.A. 7659, insofar as it prescribes the penalty of death
is unconstitutional, nevertheless submit to the ruling of the majority
that the law is constitutional, and that the death penalty should
accordingly
be imposed.cralaw:red
As to the award of damages,
aside from the P92,000 in actual damages which represent the amount of
the ransom money Feliciano Tan paid to appellants and their cohorts,
exemplary
damages in the amount of P25,000 should be paid by the appellants and
their
co-accused to the victims, by way of public example and to serve as a
deterrent
against malefactors who prey on children and other defenseless victim.cralaw:red
WHEREFORE, the Decision
dated February 2, 1999, of the Regional Trial Court of San Fernando,
Pampanga,
Branch 47, in Criminal Case No. 8371, finding accused NARCISO
SALDAÑA
and ELMER ESGUERRA and appellants FERNANDO MORALES and ARTURO MALIT
GUILTY
beyond reasonable doubt of the crime of kidnapping for ransom and
sentencing
each of them to death is hereby AFFIRMED. They are likewise
ordered
to pay, jointly and severally, actual damages in the amount of
P92,000.00
representing the amount of ransom paid by the victims’ father, as well
as the sum of P25,000.00 as exemplary damages.cralaw:red
Let alias warrants issue
for the immediate arrest by the NBI and the PNP of accused Narciso
Saldaña
and Elmer Esguerra, now at large.chanrobles virtual law library
In accordance with Section
25 of Republic Act No. 7659 amending Section 83 of the Revised Penal
Code,
let the records of this case be forthwith forwarded, upon finality of
this
decision, to the Office of the President for the possible exercise of
the
pardoning power.chanrobles virtual law library
SO ORDERED.cralaw:red
Davide, Jr., C.J., Puno,
Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Vitug, J., on official
leave.
____________________________
Endnotes:
[1]
Records, pp. 183-208.
[2]
Id. at 183.chanrobles virtual law library
[3]
Id. at 203.chanrobles virtual law library
[4]
TSN, 17 February 1995, pp. 5-6.
[5]
Ibid.chanrobles virtual law library
[6]
Id. at 7; TSN, 13 March 1995, p. 24.
[7]
TSN, 17 February 1995, pp. 9-10.
[8]
Id. at 10-11.chanrobles virtual law library
[9]
Id. at 14.chanrobles virtual law library
[10]
Sometimes referred to as “Romy” or “Ramon” in the Records.
[11]
TSN, 17 February 1995, pp. 15 & 18.chanrobles virtual law library
[12]
Id. at 15-16.chanrobles virtual law library
[13]
Id. at 17.
[14]
Id. at 21-22.chanrobles virtual law library
[15]
TSN, 1 March 1995, p. 5.
[16]
Id. at 7-9.chanrobles virtual law library
[17]
Id. at 16.
[18]
Id. at 16-18.
[19]
Id. at 19-20.
[20]
Id. at 20-21.
[21]
Id. at 21.
[22]
Id. at 23.
[23]
Id. at 22-24, 26-27.
[24]
Id. at 24-25.
[25]
Id. at 24.
[26]
Id. at 25-26.
[27]
Id. at 26.chanrobles virtual law library
[28]
Exhibit “B,” “ B-2,” Records, pp. 82, 84; TSN, 28 March 1995, pp. 4,
7-8.
[29]
TSN, 24 August 1995, pp. 8-9.chanrobles virtual law library
[30]
Id. at 9.chanrobles virtual law library
[31]
Id. at 11.
[32]
Id. at 11-12.
[33]
Id. at 13.chanrobles virtual law library
[34]
Id. at 14-15.
[35]
Id. at 15.
[36]
Id. at 16-17.
[37]
Id. at 17.
[38]
Id. at 18.chanrobles virtual law library
[39]
TSN, 16 January 1997, p. 7.
[40]
Id. at 13-14.chanrobles virtual law library
[41]
Id. at 15-17, 19-21.
[42]
Id. at 23, 28-30.
[43]
Id. at 30-35.
[44]
Id. at 36-38.
[45]
Id. at 38-44.chanrobles virtual law library
[46]
TSN, 3 February 1995, pp. 4-5, 12.
[47]
Id. at 11-12.chanrobles virtual law library
[48]
Id. at 6-7, 10-11.
[49]
Id. at 5.
[50]
Id. at 18-19.
[51]
Id. at 37.chanrobles virtual law library
[52]
Id. at 38; TSN, 21 March 1995, p. 17.
[53]
TSN, 21 March 1995, p. 5.
[54]
Id. at 5-7.chanrobles virtual law library
[55]
Id. at 8; Exhibit “A,” “A-5,” Records, p. 78.
[56]
TSN, 21 October 1997, pp. 7-10, 12.
[57]
Id. at 14.chanrobles virtual law library
[58]
Id. at 17, 20.
[59]
Id. at 18-20.chanrobles virtual law library
[60]
TSN, 6 November 1997, pp. 10-12.
[61]
Id. at 13-15.chanrobles virtual law library
[62]
Id. at 45-47.
[63]
Id. at 14-18.
[64]
Id. at 19.
[65]
Id. at 20-22.
[66]
Id. at 23.
[67]
Id. at 24.
[68]
Id. at 24-26.chanrobles virtual law library
[69]
TSN, 21 October 1997, pp. 5-6.
[70]
TSN, 6 November 1997, pp. 27, 55-57.
[71]
Supra, note 69.chanrobles virtual law library
[72]
TSN, 9 December 1997, pp. 17-19.
[73]
TSN, 22 May 1997, pp. 9-15; TSN, 3 July 1997, pp. 3-5.
[74]
TSN, 22 May 1997, pp. 14-16.chanrobles virtual law library
[75]
Id. at 17-18.chanrobles virtual law library
[76]
Id. at 19.chanrobles virtual law library
[77]
Id. at 20-23; TSN, 3 July 1997, pp. 16-17.
[78]
TSN, 3 July 1997, p. 22.
[79]
TSN, 22 May 1997, p. 25; TSN, 3 July 1997, pp. 32-34.
[80]
TSN, 3 July 1997, pp. 28, 30.
[81]
Id. at 31, 35, 43.
[82]
Id. at 44.
[83]
Ibid.chanrobles virtual law library
[84]
Id. at 44-45.
[85]
TSN, 22 May 1997, pp. 30-31.
[86]
Id. at 32-33; TSN, 7 August 1997, pp. 13-14.
[87]
TSN, 7 August 1997, p. 24.chanrobles virtual law library
[88]
TSN, 22 May 1997, pp. 34-35.
[89]
Id. at 42.chanrobles virtual law library
[90]
TSN, 7 August 1997, p. 17.
[91]
TSN, 22 May 1997, p. 40.
[92]
Id. at 45-46.chanrobles virtual law library
[93]
Rollo, p. 56.
[94]
Records, pp. 216-226.
[95]
Id. at 281-288.
[96]
Rollo, pp. 77-78.
[97]
Id. at 121.chanrobles virtual law library
[98]
ART. 267. Kidnapping and serious illegal detention. – Any private
individual
who shall kidnap or detain another, or in any other manner deprive him
of his liberty, shall suffer the penalty of reclusion perpetua to death:chanroblesvirtuallawlibrarychanrobles virtual law library
1.
If the kidnapping or detention shall have lasted more than three days.
2.
If it shall have been committed simulating public authority.chanrobles virtual law library
3.
If any serious physical injuries shall have been inflicted upon the
person
kidnapped or detained, or if threats to kill him shall have been made.
4.
If the person kidnapped or detained shall be a minor, except when the
accused
is any of the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was
committed
for the purpose of extorting ransom from the victim or any other
person,
even if none of the circumstances above-mentioned were present in the
commission
of the offense.chanrobles virtual law library
When the victim is killed or dies as a consequence of the detention or
is raped, or is subjected to torture or dehumanizing acts, the maximum
penalty shall be imposed. (As amended by R.A. No. 7659.)chanrobles virtual law library
[99]
People v. Vallejo, G.R. No. 144656, 9 May 2002, 382 SCRA 192, 217-218.
[100]
People v. Del Rosario, 365 Phil. 292 (1999).chanrobles virtual law library
[101]
ART. 12. Circumstances which exempt from criminal liability.—The
following
are exempt from criminal liability:chanroblesvirtuallawlibrary
1. An imbecile or an insane person, unless the latter has acted
during
a lucid interval.chanrobles virtual law library
When
the imbecile or an insane person has committed an act which the law
defines
as a felony (delito), the court shall order his confinement in one of
the
hospitals or asylums established for persons thus afflicted, which he
shall
not be permitted to leave without first obtaining the permission of the
same court.chanrobles virtual law library
2. A person under nine years of age.chanrobles virtual law library
3. A person over nine years of age and under fifteen, unless he
has
acted with discernment, in which case, such minor shall be proceeded
against
in accordance with the provisions of Article 80 of this Code.chanrobles virtual law library
When
such minor is adjudged to be criminally irresponsible, the court, in
conformity
with the provisions of this and the preceding paragraph, shall commit
him
to the care and custody of his family who shall be charged with his
surveillance
and education; otherwise, he shall be committed to the care of some
institution
or person mentioned in said Article 80.
4. Any person who, while performing a lawful act with due care,
causes
an injury by mere accident without fault or intention of causing it.
5. Any person who acts under the compulsion of an irresistible
force.chanrobles virtual law library
6. Any person who acts under the impulse of an uncontrollable
fear
of an equal or greater injury.
7. Any person who fails to perform an act required by law, when
prevented
by some lawful or insuperable cause.
[102]
People v. Silva, G.R. No. 140871, 8 August 2002, 387 SCRA 77, 99.
[103]
Supra, note 100 at 300.chanrobles virtual law library
[104]
Ibid.chanrobles virtual law library
[105]
Rollo, p. 138.
[106]
See People v. Serrano, No. L-45382, 13 May 1985, 136 SCRA 399, 404-405.
[107]
People v. Loreno, 215 Phil. 276, 287 (1984).
[108]
No. L-22947, 12 July 1979, 91 SCRA 340, 355.
[109]
TSN, 13 March 1995, p. 16.
[110]
Id. at 23-24.chanrobles virtual law library
[111]
See People v. Hamton, G.R. Nos. 134823-25, 14 January 2003, 395 SCRA
156,
190.
[112]
People v. Pidoy, G.R. No. 146696, 3 July 2003, p. 4; People v. Daramay,
G.R. Nos. 140235 & 142748, 9 May 2002, 382 SCRA 119, 129.
[113]
People v. Santos, G.R. No. 125352, 17 December 2002, 394 SCRA 113, 120
citing People v. Penaso, G.R. No. 121980, 23 February 2000, 326 SCRA
311,
318.
[114]
Ibid.; id. at 319.chanrobles virtual law library
[115]
People v. Pidoy, supra, note 112 at 6.
[116]
People v. Garcia, G.R. Nos. 133489 & 143970, 15 January 2002, 373
SCRA
134, 153. See also Article 8 of the Revised Penal Code.
[117]
People v. Tejero, G.R. No. 135050, 19 April 2002, 381 SCRA 382, 390.chanrobles virtual law library
[118]
People v. Dy, G.R. Nos. 115236-37, 29 January 2002, 375 SCRA 15, 47.
[119]
TSN, 17 February 1995, pp. 8-10.chanrobles virtual law library
[120]
Rollo, p. 92.chanrobles virtual law library
[121]
See People v. Ortaleza, 327 Phil. 827, 836 (1996).
[122]
Rollo, p. 105.chanrobles virtual law library
[123]
People v. Requiz, 376 Phil. 750, 760 (1999).chanrobles virtual law library
[124]
SEC. 5. Who must prosecute criminal actions.— All criminal actions
commenced
by a complaint or information shall be prosecuted under the direction
and
control of the prosecutor. However, in Municipal Trial Courts or
Municipal Circuit Trial Courts when the prosecutor assigned thereto or
to the case is not available, the offended party, any peace officer, or
public officer charged with the enforcement of the law violated may
prosecute
the case. This authority shall cease upon actual intervention of
the prosecutor or upon elevation of the case to the Regional Trial
Court chanrobles virtual law library
[125]
People v. Bongalon, G.R. No. 125025, 23 January 2002, 374 SCRA 289, 310.chanrobles virtual law library
[126]
SEC. 2. Grounds for a new trial.– The court shall grant a new trial on
any of the following grounds:chanroblesvirtuallawlibrarychanrobles virtual law library
(a)
That errors of law or irregularities prejudicial to the substantial
rights
of the accused have been committed during the trial;
(b)
That new and material evidence has been discovered which the accused
could
not with reasonable diligence have discovered and produced at the trial
and which if introduced and admitted would probably change the judgment.chanrobles virtual law library
[127]
See Jose v. Court of Appeals, 162 Phil. 364, 374 (1976).
[128]
Supra, note 98.chanrobles virtual law library
[129]
Supra, note 111 at 191. |