EN BANC [G.R. No. L-34497. January 30, 1975.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

BENJAMIN ONG y KHO, and BIENVENIDO QUINTOS y SUMALJAG,defendants-appellants.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and Solicitor Celso P. Ylagan for plaintiff-appellee. Dominador Laberinto & Associates for appellant Benjamin Ong. Jose R. Quintos & Luciano V. Bonicillo for appellant Bienvenido Quintos.

SYNOPSIS Charged with kidnapping with murder, accused pleaded guilty of murder. In his extra-judicial confession he admitted that he and his co-accused brought the victim to an uninhabited subdivision where the victim was stabbed twice within ice and buried with all his belongings. Convicted as charged and sentenced to death, accused assailed his conviction on grounds, among others, that the lower court erred in finding him guilty of kidnapping with murder since kidnapping was proven. The Supreme Court held that the detention of the victim, being incidental to the main objective of murdering him was not a necessary means for the commission of murder and therefore the crime is only murder. Likewise, it held that the circumstance which qualified the killing was treachery (the victim having been rendered defenseless); that the qualifying circumstance of abuse of superior strength is absorbed in treachery; and that both the aggravating circumstances of evident premeditation and use of motor vehicle were offset by the mitigating circumstances of plea of guilty and one similar or analogous to passion or obfuscation. Conspiracy having been proven, both defendantsappellants were sentenced to reclusion perpetua. DECISION FERNANDEZ, J p: This is an automatic appeal from a decision of the Circuit Criminal Court, Seventh Judicial District in Criminal Case No. CCC-VII-922 Rizal, dated October 11, 1971, the dispositive part of which reads as follows: "WHEREFORE, finding the accused Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag, GUILTY, beyond reasonable doubt of the crime of Kidnapping with Murder as defined under Article 248 of the Revised Penal Code, in relation to Article 267 thereof, as charged in the Information, the Court hereby sentences each one of them to suffer the penalty of DEATH; to indemnify the heirs of the deceased Henry Chua, the amount of P12,000.00; to pay moral damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages jointly and severally; and to pay their proportionate share of the costs." 1 The information filed by the Provincial Fiscal of Rizal, B. Jose Castillo against (1) Benjamin Ong y Kho, (2) Bienvenido Quintos y Sumaljag, (3) Fernando Tan, alias "Oscar Tan," and (4) Baldomero Ambrosio alias "Val", the latter two being then at large, reads:

"That on or about April 23 to April 24, 1971, inclusive, in the municipality of Paraaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then private individuals, conspiring and confederating together and mutually helping one another did then and there wilfully, unlawfully and with treachery and known premeditation and for the purpose of killing one Henry Chua and thereafter extorting money from his family through the use of a ransom note, kidnap(ped) and carry(ied) away said Henry Chua, initially by means of a friendly gesture and later through the use of force, in an automobile, and later after having taken him to an uninhabited place in Caloocan City, with the use of force detained him (Henry Chua) and kill(ed) him in the following manner to wit: The accused after gagging and tying up Henry Chua and repeatedly threatening him with death, assured him that if he would write and sign a ransom note for the payment by his family of the sum of $50,000.00 (US), he would not be killed and would be released upon receipt of the ransom money, but after said Henry Chua agreed and did execute such a ransom note, he was again gagged and tied up by the accused, and thereafter stabbed in the abdominal region, several times with an icepick, inflicting upon him (Henry Chua) mortal wounds on his vital organs, which directly caused his death. "All contrary to law with the following generic aggravating circumstances: (a)Evident premeditation; (b)Grave abuse of confidence; (c)Nighttime; (d)Use of a motor vehicle; (e)Use of superior strength; and (f)Cruelty." 2

Personal Circumstances of the Two Appellants

At the time of the trial before the lower court in September of 1971, the accused Benjamin Ong was 31 years old, employed with the Acme Shoes, Rubber and Plastic Corporation, a firm owned by his brother-in-law, Chua Pak, for the past 11 years, the last 6 of which was as an assistant manager. He was already receiving a monthly salary of P1,800.00 excluding yearly bonuses of P30,000.00 and other representation allowances or a total annual income of from P60,000.00 to P70,000.00. He had his elementary schooling at the Assumption Academy in San Fernando, Pampanga; his first and second years of high school at Chiang Kai-shek High School in Manila; and his third and fourth years at the Mapua Institute of Technology. He was a third year Commerce student, majoring in accounting at the University of the East, when he quit schooling in 1959. He married Athena Caw Siu TeeOng on November 25, 1962 at the St. Jude Catholic Church, by whom he already had four children: Connie Louis, 7 years old; Dennis, 5 years old; Edgar, 3 years old; and Fanny, 1 year old. 3 On the other hand, accused Bienvenido Quintos was 39 years old, single, an unlicensed surveyor and computer for two years already at the Robes Francisco Realty Corporation with a relatively "small" income. He was a third year engineering student when he stopped studying. In 1954 he was charged of Resisting Arrest and Assault Upon an Agent in Authority but this case was settled amicably. 4

Brief Synopsis of the Testimony of the Prosecution's witnesses.

The prosecution presented several witnesses to prove its charge of kidnapping with murder. First to testify was Patrolman Marciano Roque of the Crimes against Property Division of the Detective Bureau of the Caloocan City Police Department who declared that: He knew Benjamin Ong for about 6 years already because he usually

investigated theft and robbery cases at the Acme Firm and at times received some money from Ong. In a series of 6 meetings with Benjamin Ong starting from the first week of April, 1971, Benjamin Ong confided to him his plan to get a man who cheated him in gambling by as much as P150,000; that he would ask for money from the latter's parents; and that after which, he would kill the victim. BenjaminOng's determination was shown when his godson was even introduced to him as one who would help him. Benjamin Ong brought him to Barrio Makatipo in Novaliches, Caloocan City and described it as a suitable place where to bring the victim. Ong also told him that he had acquired a bag, flashlight and a piece of cloth. He was prevailed upon by Benjamin Ong to participate in his plan assuring that he could resign from the government service once the money is collected. Patrolman Roque revealed this plan to his Division Chief, Capt. Dueas, the Officer-in-Charge, Lt. Manapat, and the Chief of Police, Celestino Rosca. However, the three did not believe that Benjamin Ong had the guts to do it. After the incident, Patrolman Roque said that he and Police Chief Rosca met with Atty. Nestor Gonzales of the National Bureau of Investigation to supply the early leads in this case although they did not find a trace of the crime when they went to Barrio Makatipo. 5 Miss Ligaya Tam ayo testified next. She declared that: She worked as an entertainer at the Wigwam Nightclub in Paraaque, Rizal and knew Henry Chua very well. At around 1:30 o'clock in the early morning of April 24, 1971, she and Miss Mickie Yaro had Henry Chua and Benjamin Ong for their guests. The two talked in Chinese and had some drinks. Benjamin Ong showed her a check in favor of Henry Chua which he claimed that the latter won in a gambling game. She, however, did not actually see him give it. At around 1:30 that same morning, she accompanied the two to the door and saw them leave the place and ride in a Mustang car. 6 Sy Yap, older brother of Henry Chua, was the third witness. He testified that: He was with Atty. Nestor Gonzales and other agents of the NBI on September 2, 1971 in Barrio Makatipo after Benjamin Ong pinpointed the place of burial, and there be saw the decomposing body of the victim under the ground, immersed in water. He saw and identified the following personal effects found with the body: a white gold watch which stopped at the hour of 6:22 and date of "24"; Driver's License No. 32219 with the name of Sy Sing Biok alias Henry Chua; Diner's card Diner Group 0004149-1; pass issued by the Bureau of Customs for Henry Chua dated January 19, 1971; receipt for payment of the license of the car; residence certificate; lighter; wallet; currencies in different denominations; shirt jacket; pair of shoes; socks; brief; undershirt; T-shirt; and trousers with a mark "Especially tailored for Henry Chua, 2-2-71, No. 95S12." 7 Dr. Ricardo G. Ibarrola, Jr., Medico-Legal Officer of the NBI, appeared as the fourth witness. He testified on his post mortem examination made on September 2, 1971 at La Funeraria Paz, of the deceased Henry Chua, 31 years old, single, and on his necropsy report, Exhibit "M". He said that the deceased sustained two wounds on the liver and large intestine caused by a long pointed cylindrical instrument similar to an icepick. He added that most likely, the assailant was in front of and on a higher level than the victim. Although this did not appear in his report, he theorized that the two wounds were not the immediate cause of death since there was only a slight degree of hemorrhage in the vicinity of the punctured wounds. He said that the liver and large intestine had no sufficient time to bleed because something else must have happened which was the asphyxiation or suffocation of the victim due to his burial. 8 He stated, however, in his necropsy report, Exhibit "M", that the cause of death of the deceased was "punctured wounds of the abdomen." Miss Clarita Teh, travel agent of Skyways Travel Service located At Ongpin St., Sta. Cruz, Manila, declared that: At about 4:00 p.m. of April 22, 1971,Benjamin Ong called her up by phone to ask for a reservation ticket for Hongkong and Taipei. On the morning of April 23, 1971, Benjamin Ong went to her office but forgot to bring along his papers including his Alien Certificate of Registration. In the afternoon of April 24, 1971, Benjamin Ong went back to the office, this time with the pertinent papers plus P4,000 cash. She said that he changed his destination from that of Hongkong and Taipei to that of Canada. However, he needed P7,000 for this purpose. On April 29, 1971, Mrs. Ong got back the P4,000 because the latter said that her husband did not have enough money. 9

Patrolman Gener S. Estrella, municipal policeman of Baliuag, Bulacan, followed next on the witness stand. He stated that on April 25, 1971, he was on his tour of duty from 4:90 o'clock to 8:00 o'clock a.m. at the poblacion when he received information that an unidentified car was parked in a gasoline station. He therefore sought the company of Patrolman Ceferino Castro and they went to Barrio Tibag where they saw the locked Mustang car parked in a

gasoline station with plate number 16-02B, L-P.C., series '71. They reported the matter to their head, Lt. Herminio Angeles. 10 Severo "Boy" Roslin, mechanic, gave the next testimony. He knew Fernando Tan since 1965. On April 29, 1971, early morning, he saw Fernando Tan and another, introduced to him as Alfredo Hernandez, who happened to be Benjamin Ong. Fernando Tan requested him to bring them to the airport and obtain airplane seats for the Visayas. He accompanied them but they failed in this endeavor so that they proceeded to the pier. Likewise, they were frustrated in getting a passage to the South. They ended up taking a train ride to Lucena City. Roslin said that he went back to Manila that same day. On May 1, 1971, he and Fernando Tan went to the house of Bienvenido Quintos near Abad Santos St. in Manila. They did not see him so that they had to come back at noon. They then took him with them and, after passing by a laundry shop, they went to Singalong where they picked upBenjamin Ong at around 7:00 p.m. Roslin claimed that they were using his Chevy car. They went to Barrio Balugo, Oas, Albay and stayed at his parent's house. He, Quintos, and Tan stayed there for one half month where they took themselves into swimming at the river They left Benjamin Ongthere. 11 Enrique Lacanilao, an NBI agent, testified that: Exhibits "N" and "O" are the voluntary written statements signed respectively by Benjamin Ong on September 1, 1971 and by Bienvenido Quintos on September 3, 1971. He said that Benjamin Ong pinpointed to them the place of burial at Barrio Makatipo, and Sy Yap was with them during the examination. They found the mouth of the victim gagged and his hands tied. It was in a state of decomposition. The victim's body was facing downward with the buttocks protruding up. The hands were tied just above the chest while the feet were far apart. The buttocks were one foot from the surface while the face was one and a half feet below facing down. There were no houses in the area which he believed was the Araneta subdivision. He directed the reenactment of the crime. It appeared in their reenactment that Fernando Tan and Bienvenido Quintos were the ones who grabbed Henry Chua from his Mustang car when Benjamin Ong was urinating; that the victim's mouth was gagged while his hands were tied at the back; that during the making of the ransom note, Tan was holding the gun while Quintos was focusing the flashlight; that afterwards, Henry Chua's hands were tied again, this time in front; that he was stabbed after he was made to lie down facing up; that Baldomero Ambrosio and Bienvenido Quintos pulled the victim to the hole; that Baldomero Ambrosio shovelled while Bienvenido Quintos held the flashlight; that at the time the ransom note was being prepared Benjamin Ong was near the car, about 50 meters from the hole, so that his person did not appear in the picture of the reenactment of this portion. Benjamin Ong was taken by the NBI into custody from the 2nd PC Zone on September 1, 1971 at around 6:30 in the evening whereupon at 10:00 p.m. of that same night, his written testimony was taken down up to past 12:00 midnight. He had a small bandage around his writs because of an attempted suicide on his part. Bienvenido Quintos, on the other hand, he said, was arrested on September 3, 1971 and his extrajudicial statement was taken on the same day at around 7:00 or 8:00 p.m. 12 Diego H. Gutierrez, also an NBI agent, testified last for the prosecution. He identified Exhibits "Q" and "R" as the voluntary supplementary extrajudicial statements respectively of Bienvenido Quintos and Benjamin Ong. Gutierrez testimony focused on Bienvenido Quintos' admission that the hole was dug and covered with fresh twigs after the group's second meeting at the Barrio Fiesta Restaurant. 13

Brief Synopsis of the Testimony of the Witnesses for the Defense

The defense started the presentation of their evidence with the testimony of Dr. Mariano P. Lara, retired Chief Medico-Legal Officer of the Manila Police Department. His testimony centered on the matter of asphyxiation. He said that asphyxiation as the possible cause of death was nowhere reflected on the necropsy report of Dr. Ibarrola of the NBI; and that the death of the victim could have been due to shock as a result of the wounds inflicted on him. 14 Rene Aguas, BIR examiner and first cousin of Bienvenido Quintos, then testified. He said that he went to the NBI on September 8, 1971 in order to follow up the clearance papers of his deceased father. By coincidence, he discovered that Quintos was detained there, so, he tried to get in touch with him. He gathered that Quintos was "okay" although later on the latter revealed that he was hurt also. Artemio R. Quintos, an engineer and father of accused Bienvenido Quintos, followed next. He said that he visited his son on September 3, 1971 along with Atty. Bonicilla at around 7:00 p.m. at the NBI. The guard refused to tell him where his son was so that the following day, September 4, he went back to the NBI in the morning as well as in the evening. Still he did not find his son. On September 5, he delivered clothes for the use of his son to the

jailer, Benjamin Laforteza, and was issued a receipt therefor. On September 6, he brought a letter addressed to the Director of the NBI requesting him that he be allowed to see his son. It was only on September 7, at 4:00 p.m. he claimed, that he met his son. He said that Bienvenido Quintos showed to him his stomach with some bluish discoloration at the navel. On that day, he aljo received his son's dirty clothes and found bloodstains on it. 15 Bienvinido Quintos then took the witness stand. He revealed that he came to know Fernando Tan when they were still in Dagupan City long time ago. He said that he was invited on April 23, 1971 by Fernando Tan and that they met at around 7:00 p.m. of that day. They proceeded to the Barrio Fiesta Restaurant in Caloocan City where he was introduced to Benjamin Ong and Baldomero Ambrosio for the first time. At 9:00 p.m., they went to Brown Derby Supper Club in Quezon City after which they proceeded to Amihan Nightclub at around 10:30 p.m. at Roxas Boulevard. He, Fernando Tan, and Baldomero Ambrosio were left in the car. Later, Benjamin Ong went out of the Amihan Nightclub and took Fernando Tan with him. Fernando Tan returned and after a while he was invited to the nearby Wigwam Nightclub. They hurriedly left the place and Fernando Tan took the front seat of the Biscayne car while he took the back seat and followed a certain car. When that car stopped, he saw Benjamin Ong vomitting. Fernando Tan and Baldomero Ambrosio went down and Fernando Tan pulled out his gun. The victim was dragged and forced into the rear part of their car. The victim's hands and feet were tied by Baldomero Ambrosio while the mouth was gagged by Fernando Tan with a flannel cloth. Bienvenido Quintos made clear in his testimony that the victim was lying on his back inside the car so that his face was up and his hands were on his breast. Fernando Tan then threatened him with his gun should he not cooperate with them. At Barrio Makatipo, the victim laid down on the ground and Benjamin Ong got the shovel and flashlight and gave them to Fernando Tan. The victim was made to walk a little distance and then lie down again face up. Benjamin Onggave to Fernando Tan an icepick who then gave it to Baldomero Ambrosio and in turn gave it to him. He refused to stab the victim so that he returned it to Fernando Tan who made the actual stabbing on the victim's chest twice. According to him, there was already a hole in that place. He also claimed that Exhibit "O" was not a voluntary statement of his and that he was maltreated by more or less 5 men. He said that he went to Oas, Albay on May 1, 1971 but that he was never contacted by the group between April 24 and 30. At a certain point during the proceedings, the court suspended his testimony for about 15 minutes after he complained of an aching head. 16 Benjamin Ong testified last for the defense. He related that Henry Chua was a friend and that they were slightly related to each other. He felt that he was cheated because he was the only one who continuously lost in their mahjong sessions. Henry Chua's group, including Ko King Pin, Go Bon Kin and Marcelo Tanlimco, went to his office and humiliated him there. On April 21, 1971, Henry Chua called him up by phone and invited him to the Amihan Nightclub where he could settle the gambling debt. He admitted responsibility for Henry Chua's death but

emphasized that his purpose was merely to kill him. He added that nothing was taken from the body of the victim. He asked the assistance of Fernando Tan and Baldomero Ambrosio who merely drove the car. He denied the testimony of Patrolman Marciano Roque regarding his revelation of his plan. He believed that Henry Chua knew that

he had a grudge against him during that fatal day. He waited for them to dig and cover the hole which took about one hour and a half after the stabbing. He attempted suicide by slashing his wrist 7 or 8 times while he was still in the custody of the P.C. at Camp Vicente Lim in Laguna. He was also brought by the NBI to the Salem Motel where he was investigated from 8:30 in the evening up to 5:30 in the morning of the next day. Exhibit "N", his extrajudicial statement, was taken while he was groggy and very weak. He likewise pinpointed the grave. At a certain juncture

during Benjamin Ong'stestimony, his counsel sought the court's permission to exclude the public from the hearing because Ong's wife would testify on something that would constitute a "great shame" to their family. Benjamin Ong, however, refused to go ahead with said testimony. Benjamin Ong further claimed that he decided to kill Henry Chua on April 23, 1971. He was hurt by the threatening words on the part of the victim which humiliated him and, as such, he was forced to resign from his job. He went to the Skyways Travel Service only after the incident. He, however,

changed his destination and wanted to go instead to Canada and Europe. The reason why he was not able to pursue his departure was because Sy Yap called him up and asked him about his brother's whereabouts so that he seriously felt that the authorities were already after him. He left Manila on April 29, 1971 and went to Legaspi City with Fernando Tan but found no acquaintance there so that they went back to Manila. It was Fernando Tan who contacted Boy Roslin and Bienvenido Quintos after which they went to Oas, Albay and stayed there for about two to three days. He hid himself on top of the mountain with an old man. Furthermore, he said that Henry Chua was aware that he resented him. Benjamin Ong likewise denied having called Fernando Tan at anytime, to come in with him to the nightclub. 17

Non-Conflicting Facts

Non-conflicting facts, as shown in the testimonies of the accused and witnesses in open court, and reiterated in the respective briefs of the parties, are as follows: For more or less one year and a half prior to the dreadful incident, the accused Benjamin Ong used to play mahjong with the deceased Henry Chua and the latter's companions, Ko King Pin, Go Bon Kim and Marcelo Tanlimco. In those sessions, he lost substantially that at one time, it amounted to as much as P150,000.00. He suspected that he lost in unfair games and was completely cheated by Henry Chua and the latter's companions, who made things worse by pressing him to pay his gambling debt with a threat of bodily harm upon his person and that of his family. The deceased and his companions embarrassed Benjamin Ong, incident after incident, especially when they went time and again to Benjamin Ong'soffice at the Acme Shoes, Rubber and Plastic Corporation to confront him. The extent of his embarrassment was made manifest by the fact that he had to resign from his job. On April 21, 1971, Henry Chua repeated his demands for early settlement of his gambling debt and, as such, invited Benjamin Ong to see him on April 23, 1971 at the Amihan Nightclub and bring with him the money owed (P50,000.00). That same day that Henry Chua phoned Benjamin Ong, the latter contacted and sought the assistance of Fernando Tan, a technical supervisor also of the Acme Firm. Benjamin Ong told Fernando Tan about his grudge and plans against Henry Chua in order to avenge the embarrassment and humiliation he suffered before the eyes of his subordinates. Fernando Tan, who incidentally, owed Benjamin Ong his job 18 , was very accommodating and he shared Ong's feelings against Henry Chua. And, according to Benjamin Ong, Tan said "Why not just kill him." 19 Tan immediately contacted Baldomero Ambrosio, Benjamin Ong's godson in marriage and a former Acme employee, and likewise called upon his boyhood friend Bienvenido Quintos at the latter's office at the Robes Francisco Realty Corporation. On April 23, 1971, the four met at the Barrio Fiesta Restaurant in Caloocan City and finalized their plan to liquidate Henry Chua. The group, riding inBenjamin Ong's Biscayne car, then went to the Amihan Nightclub and arrived there at past nine o'clock in the evening. The two, Benjamin Ong and Henry Chua met there and had a couple of drinks. Benjamin Ong asked for patience and leniency with regard to his indebtedness and ample time for its settlement. From the Amihan the two went to the nearby Wigwam Nightclub where they tabled two hostesses, Ligaya Tamayo and Mickie Yaro and had some more drinks. At around 1:30 a.m. of the following day, Aril 24, 1971, the duo left the place and rode in Henry's Mustang car. Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio, riding in Ong's Biscayne car, followed the couple down Roxas Boulevard, then to Quiapo and Quezon Boulevard Extension in Quezon City where, after passing the Sto. Domingo Church, they made a turn towards a dirt road leading to Del Monte Avenue. When they reached a dark and secluded place, Benjamin Ong urged Chua to stop the car in order to urinate, to which the latter obliged. It was at this time that the Biscayne car arrived and stopped in front of the Mustang car whereupon Fernando Tan and Baldomero Ambrosio alighted with a flashlight and pretended to be policemen. Fernando Tan poked his gun at Henry Chua and pulled him down from his Mustang car with Baldomero Ambrosio giving him help. They then guided and forced him inside the rear part of the Biscayne. He was made to lie, face up. His hands were tied and his mouth gagged with a flannel cloth. Fernando Tan and Bienvenido Quintos then rested their feet on him. Baldomero Ambrosio drove the Biscayne whileBenjamin Ong drove the Mustang and followed them from behind. The group took Del Monte Avenue, Roosevelt Avenue, and then E. de los Santos Avenue, right to the North Diversion Road, and right again to Novaliches until they reached a deserted place that looked like an idle subdivision in Barrio Makatipo, Novaliches, Caloocan City. It was here that Henry Chua was stabbed twice with an icepick, allegedly by Fernando Tan, and buried there with all his belongings with him consisting of a Piaget watch, lighter, wallet containing P50 bills, driver's license, diner's card, etc. After this, the group proceeded to Barrio Tibag, Baliuag, Bulacan with Benjamin Ong and Fernando Tan on the Mustang. There they left it locked near a gasoline station. The foursome then regrouped in the Biscayne and proceeded back to Caloocan City where they separated at about 7:00 o'clock in the morning. On August 29, 1971, somewhere in Barrio Balugo, Oas, Albay, Benjamin Ong was arrested by operatives of the 2nd PC Zone and later turned over to the NBI. On the other hand, Bienvenido Quintos was apprehended on September 2,

1971 in his residence at Tayabas St., in Sta. Cruz, Manila by members of the MPD and later turned over to the NBI also.

Important Points of Conflict

The prosecution adds more to what the defense claims and conflicts appear in various instances. One such instance was the testimony of the first prosecution witness, Patrolman Marciano Roque of Caloocan City, to the effect that one month or so before the execution of the crime, Benjamin Ongsolicited his help in consummating his plan. Patrolman Roque testified that he tried his best to convince Benjamin Ong to desist but to no avail. It was this witness who revealed Benjamin Ong's plan to ask for money from the rich family of the deceased and, with said money, he, Roque, could already resign from his job should he participate. 20 In his testimony before the lower court, Benjamin Ong vehemently denied having revealed such plan to the witness. 21 However, in his brief, accusedBenjamin Ong claims that this testimony if ever there was such, does not reveal his intention to kill Henry Chua that early. At most, he said, it was a mere "infantile thought of wishing someone dead" and no more. 22 On this point, counsel for the accused Ong, argued as follows in their well-written brief: "Pat. Roque has not categorically asserted that he was a friend of Benjamin Ong. They came to know each other when he, as a policeman, investigated theft and robbery cases on the complaint of the Acme Shoe and Rubber Corporation where Benjamin Ong worked as Assistant Manager. (pp. 5-7, t.s.n., Sept. 16, 1971) As to why Benjamin would reveal a plan to kidnap another to a policeman, in the absence of a close and long association, is just too incredible to merit belief. Pat. Roque said that Benjamin Ong "confided to me that I am the only person whom he can trust so he further enumerated a detail that he intended to get a money and ask for the money from the parents of the victim." (Id., p. 10) As to why he merited the trust of Benjamin Ong, he did not say. "Pat. Marciano Roque said that he has no criminal record (Id., p. 42). He has not conveyed to Benjamin Ong any information that he is a gun for hire (p. 43), nor does he have that reputation (Id., p. 43). If he were a criminal or he had a reputation as a professional killer, it is perhaps possible for one in Benjamin Ong's position to have made the proposition to him. Moreover, when he was cross-examined on the alleged intention to collect ransom, he committed material contradictions such as to raise serious doubt on the veracity of his testimony. He could not categorically assert whether the alleged intention of Benjamin Ong was to kill the victim first and demand money from his parents after, or detain him first, and after receiving ransom money, kill the victim. ATTY. QUISUMBING: QYour testimony is as follows: that he told you that after demanding the money to kill the man, you remember that? AThat was what he said. QIn other words, this was not the way he told you, that he would grab the man so that he could get the money by extortion or by ransom? AHe said that after having in his possession his intended victim he would demand some money from his parents. QI will recall in your direct testimony . . . you said that afterwards if he could get the money he will kill the man, that was your first testimony, which is correct?

AHe lost one hundred fifty thousand. QAnd he needed money and so he would demand money from the father or parents of the victim, is that not your testimony? AYes, sir. QAnd afterwards he wanted to kill the man? ANo, sir. QAnd so what is your testimony now? AAfter he got the man he will demand money from the parents or ransom money from the parents of the victim. QSo it is the other way. He first would kill the man and afterwards get the money. ATTY. DE SANTOS The question is misleading. COURT: Answer. WITNESS: ANo, sir, he said that after receiving the money the man may he killed. QIs that your testimony? That he will kill the victim or the victim may he killed? ANo, sir. QSo which is which? AHe will kill the victim. QAfter getting the money? AYes sir. (pp. 38-41", t.s.n., Sept. 16, 1971)" Another point of conflict is the claim of the prosecution that a ransom note was indeed written and copied by Henry Chua from a prepared note before the latter was icepicked and buried. It appears that co-accused Bienvenido Quintos stated in his supplementary extrajudicial statement before the NBI that: "Yes sir. After we have brought victim some meters away from the road, FERNANDO TAN ordered victim to lie face down on the ground at the same (time) he untied victim and removed the gag while his gun was still pointed at the head of Victim. Thereafter he ordered the victim to copy a prepared ransom note in a piece of yellow paper. I saw the figure $50.000.00 because I was holding then the flashlight. It was only after the ransom note was written and was submitted to BENJAMIN ONG that FERNANDO TAN returned to us." 23

This is hearsay as against Benjamin Ong. And Ong vehemently denied the same in his testimony in open court when he said upon questioning:

"QIn this statement Exhibit "N", you admitted that Henry Chua was taken from the Mustang car and transferred to the Viscain (sic) car and then brought to that uninhahited place in Barrio Makatipo; what was your purpose in having the late Henry Chua taken from his car and brought to Makatipo? AMy purpose was just to kill him, and there is (sic) not going to be any delay. "QWas there any purpose of detaining him for sometime? xxx xxx xxx ANo, there was no purpose to detain him any further." 24 Also, in his extrajudicial statement, he said: "QWhen you hatched the plan to kill HENRY CHUA, did it ever occur to you to demand or ask for any ransom money from the family of HENRY CHUA? A Never, the question of ransom money never entered my mind?" 25 Admittedly, no such genuine ransom note was received by the family of the deceased. Undoubtedly, its presence in the crime could aggravate it, allowing the imposition of the capital punishment of death. 26 Also conflicting is the matter of Bienvenido Quintos' participation at the time Henry Chua was dragged into the Biscayne car. The briefs of both parties tend to show that it was Fernando Tan and Baldomero Ambrosio who pulled Henry Chua out of his Mustang car, forced him into the Biscayne car, tied and gagged him. 27 However, Agent Lacanilao testified that in the reenactment of the crime it was shown that Bienvenido Quintos and Fernando Tan were the ones who dragged Henry Chua out of his car. 28 Added to this is the claim of Benjamin Ong that Baldomero Ambrosio merely drove the Biscayne for the group. 29 The prosecution likewise claims in its brief that as early as a week before the incident, the group already chose a site and prepared a hole where to bury Henry Chua; 30 that this group was in constant search of the victim along the nightclub row in Roxas Boulevard during the succeeding evenings but failed to see him; 31 that a day before the unfortunate evening, Ong contacted Miss Clarita Teh of the Skyways Travel Service at Ongpin St., Sta. Cruz, Manila, and asked for a booking for Hongkong and Taipei, and deposited P4,000.00 therein. 32 Similarly, it is alleged that on April 29, 1971, a few days after the incident, Tan and Ong contacted Severo "Boy" Roslin, a long-time friend of Tan, to help them obtain airplane seats for the Visayas, but they failed; 33 that they also proceeded to the pier to seek passage to the South on a boat but they were likewise frustrated; 34 that instead, they took a train ride to Lucena City where Roslin left them and after which, they continued to Legaspi City; 35 that finding no acquaintance there, they went back to Manila; 36 that on May 1, 1971, Tan again engaged Roslin's services and with the latter driving his car, they picked up Quintos and Ongand went to Barrio Balugo, Oas, Albay and stayed there in the house of Roslin's parents; 37 that Ong was left there while Roslin, Tan and Quintos went back to Manila. 38 A reenactment of the crime was had by Benjamin Ong, Bienvenido Quintos and some NBI and MPD agents who played the role of their co-accused Fernando Tan and Baldomero Ambrosio. 39 The trial of this case in the lower court proceeded with commendable speed, although separate trials for the two accused who had been arrested so far at that time were held upon the latter's request. Both entered a plea of "not guilty" to the crime charged upon arraignment on September 4, 1971. However, in the case of Benjamin Ong, he invoked the doctrine laid down in the case of People vs. Yturriaga 40 to the extent that the prosecution should not nullify the mitigating circumstance of a plea of guilty, by counteracting it with "unfounded allegations" of aggravating

circumstances in the information. In other words, he admitted his guilt in so far as the crime of simple murder was concerned. 41 Before this Court, the accused Benjamin Ong maintains that: I "The Court a quo erred in finding the accused guilty of the crime of kidnapping with murder because (a)There was no evidence offered against the accused which would prove that the crime of kidnapping was committed at all; (b)Kidnapping cannot be complexed with murder; (c)In those cases where the Supreme Court convicted the accused of Kidnapping with Murder, there was shown an intention to deprive the victim of his liberty, and it was held that the kidnapping was a necessary means to commit the crime of murder. II "The court a quo erred in finding that the killing of the deceased was attended by the generic aggravating circumstances of (a)Abuse of superior strength; (b)Nighttime; (c)Uninhabited place; (d)Abuse of confidence; (e)Use of motor vehicle; and (f)Cruelty. and the qualifying circumstances of (a)Alevosia (b)Evident premeditation. III "Assuming that the killing of Henry Chua was attended by the aggravating circumstance of alevosia, the aggravating circumstance of abuse of superior strength and nighttime, if present, are absorbed by treachery. IV "The court a quo erred in not appreciating (a) plea of guilty, and (b) circumstances of a similar nature or analogous to Article 13, paragraphs 1 to 9 of the Revised Penal Code as mitigating.

V "The court a quo erred in imposing the death penalty upon the accused. VI "The court a quo erred in sentencing the accused to pay excessive damages." 42 For his part, the accused Bienvenido Quintos argues that: "1.The lower court erred in giving full weight and credit to the extrajudicial statement of the defendant-appellant. "2.The lower court erred in not finding that there was no conspiracy between defendantappellant Bienvenido Quintos and the other accused. "3.The lower court erred in not acquitting defendant-appellant Bienvenido Quintos." 43

OUR RULING The Evidence on the Alleged Writing of a | Ransom Note is Insufficient to Support a Finding in Favor of the Prosecution:
First, Benjamin Ong vehemently denied asking for ransom. "In the extrajudicial statement of Benjamin Ong, he was asked this question: 'Q. When you hatched the plan to kill HENRY CHUA, did it ever occur to you to demand or ask for any ransom money from the family of HENRY CHUA?' to which he answered: 'Never, the question of ransom money never entered my mind.'" (Question No. 5, Exh. N.). Secondly, no ransom note was presented as evidence by the prosecution, nor did the latter show that a demand for money was made upon the family of the victim. In the case of People vs. Manzanero, Jr. 44 , We held: "Furthermore, what could have been the motive for the kidnapping? According to the trial court, the ransom money was needed by Manzanero to defray the huge expenses for the day-to-day living of his lawful wife and seven children, and of his mistress and his five children by her, and his repair shop that was earning only about P1,000 monthly could hardly meet the salaries of his 16 workers and mechanics. But is it credible that Manzanero, 'being the intelligent and shrewd man that he appears to be,' according to the trial court, could even have entertained the illusion that the kidnapping that he was to perpetrate so clumsily and amateurishly would be profitable to him, and he could escape from criminal prosecution? And what is strange is, if the ransom

note was indeed written, why was it never presented in evidence? The claim that it was lost is unbelievable. The ransom note, if it ever existed, was the most important piece of evidence that could support the prosecution's theory that the kidnapping was for ransom. Certainly, that piece of evidence should be kept and preserved. No plausible explanation was given how that ransom note got lost. Neither the father nor mother of Floresita was made to testify regarding the alleged ransom note.
"Moreover, if ransom was the purpose of the kidnapping, why did Manzanero so easily, and without apparent reason, give up his alleged criminal enterprise; when he could have pursued it to a successful end? If there was really that ransom note, and that ransom note was sent, the

most logical thing that Mazanero would have done was to send instructions to Floresita's family on how, when, and to whom the ransom money should be delivered. There is no evidence that Manzanero ever made any follow up in order to get the ransom.

"Furthermore, barely two days after the alleged kidnapping for ransom, Manzanero, without having obtained even part of the ransom money, released Floresita. Would a kidnapper, as Manzanero was alleged to be, readily the victim without realizing his purpose? " (Emphasis Supplied) Thirdly, the extrajudicial statement of accused Quintos wherein he stated that Fernando Tan ordered Henry Chua to prepare a ransom note wherein he saw the figure $50,000.00, is tainted with serious doubts due to the apparent maltreatment that Quintos received from the NBI and MPD men on September 3, 1971. 45 The medical certificates and case record 46 issued by the Philippine General Hospital support the findings and remark of the examining physician, Dr. Florencio Lucero, that in the person of accused Quintos, "intramascular hematoma is evident." Besides, it is hearsay and therefore incompetent evidence against Benjamin Ong. And in the reenactment, as testified to by NBI agent Lacanilao, while the ransom note was being prepared, Benjamin Ong was about 50 meters away from the place where the note was being prepared. Fourthly, although both parties in their briefs agree that the victim's hands were tied after he was shoved into the rear floor of the Biscayne car, neither makes a categorical claim that the hands were tied at his back. In fact Acting Solicitor General Hector C. Fule submits in his brief that the victim was made to lie down "face up". 47 This leads to the conclusion that the rope around the victim's hands was never removed at any instance up to the time that he was buried and exhumed. This discounts the idea that before the victim was made to copy a prepared ransom note, the hands at his back were tied, and after the writing, his hands were again tied, this time in front. Bienvenido Quintos in open court positively stated that the victim was made to lie on his back inside the car and his hands tied on his breast. 48 The contrary evidence on this point are those of Agent Lacanilao on the reenactment of the crime which was based on the extra-judicial statement of Bienvenido Quintos. 49 However, as shown above, this statement is of dubious veracity.

Finally, that appellants never intended to make money out of the murder of Henry Chua, can be clearly deduced from the fact that Chua was buried with everything in his person; and during the exhumation of his body, his brother, Sy Yap Chua, identified the articles found in the body of the deceased, such as a Piaget watch worth around P10,000.00 (Exh. B), a wallet together with money, with P50 bills and other denominations. In the light of the foregoing facts and circumstances, We cannot give any credence to the testimony of Patrolman Roque that about the first week of April, 1971, Benjamin Ong confided to him his plan to get a man who cheated him in gambling by as much as P150,000.00; that he would ask for money from the latter's parents and after which he would kill the victim. And the facts brought out on cross examination of this witness, which We have discussed earlier, show the incredibility of Ong confiding to Patrolman Roque his criminal intention, particularly, his intention to ask money from the parents of the intended victim. As a matter of fact, this witness, on cross examination, got lost, so to speak, on the point of whether according toOng, he would first kill the intended victim and demand money from his parents afterwards, or detain him first and, after receiving a ransom money, kill the victim. Furthermore, from the first week of April, 1971, when this intention was allegedly revealed by Ong to this witness, Ong could have changed his mind with respect to the demand for money when the victim was actually taken and killed in the early morning of April, 1971.

There was no Kidnapping to Make the Crime a Complex one of Kidnapping with Murder
The extrajudicial confession (Exhibit N) of accused Benjamin Ong was affirmed and confirmed by him in open court, thus: "QI show you this document marked as Exhibit "N", statement of Benjamin Ong, dated September 1, 1971, do you admit that this is your statement given to the NBI? AYes, sir.

QIn this statement, Exhibit "N", you admitted that Henry Chua was taken from the Mustang car and transferred to the Biscayne car and then brought to the uninhabited place in Barrio Makatipo, what was your purpose in having the late Henry Chua taken from his car and brought to Makatipo? AMy purpose was just to kill him, and there is not going to be any delay. QWas there any purpose of detaining him for sometime? ANo, there was no purpose to detain him any further." And the evidence on record shows clearly that the deceased Henry Chua and Benjamin Ong left the Wigwam Nightclub at Paraaque, at about 1:30 a.m. on April 24, 1971, in the car of Chua. Chua went voluntarily with Ong, so much so that Chua himself drove his car. They were already in Del Monte Avenue, near the place in Caloocan where Chua was killed and buried when they tied the hands of the deceased; that there were still disagreement among the four accused on who would kill the deceased, until finally it was the co-accused Fernando Tan who stabbed him with an icepick; and that the four accused, including two others, parted from each other at 7:00 o'clock in the early morning of April 24, 1971 after they brought the car of Chua and left it in Bo. Tibag, Baliuag, Bulacan. In view of the foregoing facts and circumstances, We hold that there was no kidnapping, but only murder, because the detention of Chua was onlyincidental to the main objective of murdering him and was not a necessary means for the commission of the murder. From the Commentaries on the Revised Penal Code of Justice Aquino, an acknowledged authority in criminal law, We find the following: "If the detention of the victim is only incidental to the main objective of murdering him, and is not a necessary means for the commission of the murder, the crime is only murder and not the complex one of murder through kidnapping. In the Guerrero case, the accused Huks brought to the mountain two persons, father and son. The father was killed. The son, a 14-year old minor, was aboe to escape on the second night following his detention. HELD: The accused were guilty murder as to the father and kidnapping as to the son. "In a 1902 case, the victim was taken from his house and then brought to an uninhabited place, where he was murdered. HELD: The crime was murder only. There was no illegal detention 'since it does not appear that it was the purpose of the accused to commit this offense.' The primary objective was to kill the victim. "Where after the robbery committed in a house, three of its inmates were taken to a place near the river one kilometer from the house, where they were killed, the kidnapping was deemed absorbed in the crime of robbery with homicide. "Where the appellants kidnapped the victim at his house at Aviles Street, Manila and forced him to ride in a car, but while the car was at the intersection of Libertad Street, Pasay City, the victim jumped from the car and was shot to death, the crime was held to be murder only." (I Revised Penal Code by Justice Aquino). And We quote from the brief of appellant Ong: "The crime committed was only murder. "As early as the case of US vs. Nicolas Ancheta, et al. (No. 422, March 14, 1902; 1 Phil. 165), it was held that where the accused kidnapped the victim, Ventura Quinto, took him to a place called Radap, and there by order of Nicolas Ancheta and Sebastian Dayag, the victim was killed, the crime committed by them was murder. The acts committed by the accused do not constitute the crime of illegal detention since the deceased was captured in his house and taken by the accused to an uninhabited place selected by them for the purpose of killing them there. (At p. 169). In the case of US vs. Teodoro de Leon (No. 522), March 10, 1902; 1 Phil. 163), there was

a demand for the payment of ransom. Nevertheless, the accused was found guilty not of kidnapping with murder but of murder only. In this case, the deceased, Don Julio Banson, was forcibly removed from his house by Fabian Tolome, by order of Teodoro de Leon. He was tortured and maltreated by the defendant until they arrived at a place called Bulutong. 'Not satisfied with torturing the deceased by himself he (Teodoro de Leon) ordered Tolome to give him a blow upon the chest with a bolo. Don Julio begging for mercy, the defendant sent one of his servants to the wife of the deceased to ask for $1,000.00 for his ransom. After the servant had been sent all were led to a place called Cosme and upon arriving there the defendant ordered Fabian and Tolome to conduct Don Julio to a ditch. At the same time the witness and his three companions were given their liberty by the defendant, who remained with his two companions and with Don Julio. Don Julio was never afterwards seen alive and his headless body was found two or three days later in this same place.' The accused was found guilty of the crime of murder. Similarly, in the case of US vs. Emiliano Cajayon, et al. (No. 981, Oct. 8, 1903; 2 Phil. 570) twelve armed men kidnapped Tranquilino Torres and took him with them to the barrio Maliig, in the town of Lubang, Cavite province, where they killed him and buried him in a hole dug for that purpose. It was held that the crime committed was murder. The pertinent facts of the case are stated briefly as follows: About 20 armed men forced their way into the house of Felix Marin, made him and his son prisoners, and carried them off with their arms tied behind their backs. From there they proceeded to the house of the head man of the barrio which they set on fire, and after capturing all the inmates, brought them to an estero called the "Pasig" where they set all prisoners free, except Felix Marin and Isabel Beltran. These two they took away in a boat and carried to a clump of manglares, at the edge of the estero, where Maris, still bound, was decapitated by one of the band with a single stroke of a bolo. Isabel Beltran was set free. It will be noted that as to Isabel Beltran, the son of Felix Maris and the others, who were made prisoners, there was deprivation of liberty. Nevertheless, the accused was found guilty of murder, and not of kidnapping with murder. In the case of People vs. Magno Quinto, et al. (L1963, Dec. 22, 1948; 82 Phil. 467), it was established that Gregorio Caling was picked up at his home in Floridablanca, Pampanga by a band of Hukbalahap on the night of December 9, 1945 and taken to the bank of the Gumain River, Gregorio Caling was investigated in connection with his arms, maltreated, and subsequently killed. The judgment finding him guilty of murder was affirmed. In the case of People vs. Juan Bulatao (L-2186, Jan. 29, 1949; 82 Phil. 743), one Jose Tan was forcibly taken by four armed men, among them the accused. The following morning, the victim was found dead. It was also held that the accused was guilty of murder. In the case of People vs. Eufracio Lansang (L-1187, Jan. 25, 1949; 82 Phil. 662) the accused who participated in the kidnapping of the victim who was thereafter killed was found guilty as an accomplice in the crime of murder. The case of People vs. Alejandro Mendiola, et al. (L-1642, Jan. 29, 1949; 82 Phil. 740) is more significant. In this case the Supreme Court said: 'The circumstances of the case, as proved by the evidence, lead us to the conclusion that each and everyone of appellant took part with Taciano V. Rizal in a conspiracy to kidnap as they did Teofilo Ampil and they are all equally responsible for his killing, which was perpetrated in accordance with the plan of the kidnappers. Once the kidnapping has been decided, the authors necessarily had to entertain the killing as one of the means of accomplishing the purposes of kidnapping. 'The three appellants were correctly found by the trial court guilty as authors of the crime of murder . . .' In the case of People vs. Francisco Moreno (L-2335, March 7, 1950; 85 Phil. 731), several armed men went to the house of Manuel Artates in barrio Pogoncile, Aguilar, Pangasinan, and took him to the Marapudo Mountains in Mangatarem where, he together with one Jose Jasmin, was beheaded. Thereafter, 'the defendant Francisco cautioned all the men who took part in or witnessed the execution as well as the kidnapping of the two men not to reveal to anyone what they had seen that night under penalty of punishment.' The decision of the trial court finding the appellant guilty of murder was affirmed. In the case of People vs. Alfredo Riparip, et al. (L-2408, May 31, 1950; 85 Phil. 526), one Enrique Roldan was on December 27, 1944 kidnapped and on the following day killed by certain guerilla units. The accused were found guilty of the crime of murder. In People vs. Gaudencio Villapa, et al. (L-4259, April 30, 1952; 91 Phil. 189), the

deceased Federico Agonias, was taken by the accused from the house of Guillermo Calixto in barrio San Marcelino, Balugao, Pangasinan, and he was killed about 50 meters from the house. They were found guilty of murder. In People vs. Emeterio Sarata, et al. (L-3544, April 18, 1952; 91 Phil. 111), it appeared that the four accused took the victim Sabiano Bucad from his house, placed him in a banca and sailed towards the opposite shore of the Bato lake where the victim was maltreated and killed by the accused. It was held that the crime committed was murder. In the case of People vs. Eligio Camo and Buenaventura Manzanido (L-4741, May 7, 1952; 91 Phil. 240), the accused took the deceased Patricio Matundan from his house in the barrio of Conda to the barrio of Talaan, both of the Municipality of Sariaya, Quezon. Upon reaching a place near the mangroves, the group stopped, and accused Camo shot and killed the victim. The accused were charged with the crime of murder with kidnapping. The Supreme Court held:

'The Solicitor-General next contends that the offense committed was the complex crime of kidnapping with murder. Again, we are inclined to agree with the trial court that the crime committed was simple murder. It is true that Patricio was taken from his home but it was not for detaining him illegally for any length of time or for the purpose of obtaining ransom for his release. In quite a number of cases decided by this court where the victim was taken directly from his house to the place where he was killed, kidnapping was not considered to raise the offense to the category of a complex.' (At p. 246) In People vs. Nestorio Remalante (L-3512, Sept. 26, 1952; 92 Phil. 48), the accused with about 10 armed men met Mercedes Tobias, accompanied by Eusebio Gerilla and Lucia Pilo, on the way to her home in the barrio of Guiarona, municipality of Dagami, Province of Leyte. The accused took hold of Mercedes Tobias and dragged her, while at the same time striking her with the butt of his rifle at different parts of her body. Eusebio Gerilla and Lucia Pilo saw Mercedes being dragged towards the sitio of Sawahan. Hardly had they walked one kilometer when they heard gun reports. The following day, Mercedes was found dead in Sawahan with two gunshot wounds. Nestorio Remalante was charged and found guilty by the trial court of the crime of kidnapping with murder. As to the charge of kidnapping, the Supreme Court held: 'There is no sufficient evidence of intention to kidnap because from the moment Mercedes Tobias was held and dragged to the time when the gun reports were heard nothing was done or said by the appellant or his confederates to show or indicate that the captors intended to deprive her of her liberty for sometime and for some purposes and thereafter set her free or kill her. The interval was so short as to negative the idea implied in kidnapping. Her short detention and ill-treatment are included or form part of the perpetration of the crime.' (at p. 51) In the case of People vs. Silvino Guerrero, et al., (L-9559, May 14, 1958; 103 Phil. 1136, Unrep.), the appellants were found guilty for the murder of Candido Disengao and the kidnapping of Paulo Disengao. As to the killing of Candido Disengao, it was held: 'As the court a quo has correctly held, appellants cannot be convicted of the complex crime of kidnapping with murder under Article 48 of the Revised Penal Code, for the reason that kidnapping was not a necessary means to commit the murder. Candido was detained and brought to the mountains to be killed this we have held may not be considered kidnapping with murder but mere murder. (People v. Camo, G.R. No. L-4741, May 7, 1952; People vs. Remalante, G.R. No. L-3512, 48 O.G. 38813883; People vs. Villapa, et al., G.R. No. L-4259, April 30, 1952) [13 Velayo's Digest (new series) 337; please see also 103 Phil. 1136]'. In People vs. Santos Umali, et al. (L-8860-70, January 23, 1957; 100 Phil. 1095 Unrep.), the accused were charged and convicted by the trial court of kidnapping with murder. The evidence

shows that the deceased was killed in front of his house. The crime committed is only murder. (13 Velayo's Digest [New Series], p. 340). In People vs. Cenon Serrano alias Peping, et al. (L-7973, April 27, 1959; 105 Phil. 531), the accused were charged with illegal detention with murder. After a drinking spree, the accused, Cenon Serrano, suggested to the deceased Pablo Navarro to leave Bacolor, Pampanga for San Fernando for a good time, to which suggestion the latter agreed. While the victim together with the accused Cenon Serrano and others were on the way to San Fernando, Cenon Serrano suggested that they proceed to Angeles for a good time to which Pablo Navarro agreed. Upon reaching barrio San Isidro, Cenon Serrano ordered the driver to proceed to barrio Dolores, Bacolor, Pampanga where the deceased was detained and questioned at the stockade of the civilian guards. That same afternoon, Pablo Navarro was taken out of the stockade and was brought to sitio Castilang Malati where the deceased was shot and killed. The trial court found the defendants guilty of the crime of murder. The decision was affirmed by the Supreme Court. In People vs. Rosario Lao, et al. (L-10473, January 28, 1961; 1 SCRA 42), one Rosa Baltazar was taken by two of the accused and killed beside a creek about 6 to 10 meters away from the hatchery of the Lao poultry farm where she was staying. The trial court found them guilty of the crime of kidnapping with murder. The Supreme Court held that 'the crime committed is not kidnapping with murder as stated in the title of the information but murder.' In People vs. Felipe Sacayanan (L-15024-25, Dec. 31, 1960; 110 Phil. 588), a group of five armed men forcibly took from their houses the victims Juan Galaraga and Victor Alamar to a place about 40 meters away from the house where they were shot. Juan Galaraga died. Victor Alamar was seriously wounded. The trial court convicted the accused of the complex crime of kidnapping with murder. The Supreme Court held that this was error. 'Nothing was said or done by the accused on his confederates to show that they intended to deprive their victims of their liberty for some time and for some purpose. There was no appreciable interval between their being taken and their being shot from which kidnapping may be inferred.' (See People v. Remalante, 92 Phil. 48; O.G. [9] 38881). From the foregoing discussion, it seems clear that the weight of authority is in favor of the proposition that where the victim was taken from one place to another, solely for the purpose of killing him and not for detaining him for any length of time or for the purpose of obtaining ransom for his release, the crime committed is murder, and not the complex crime of kidnapping with murder. This ruling is entirely consistent with law. Art. 267 of the Revised Penal Code penalizes a person 'who shall kidnap or detain another,' and the penalty becomes capital 'where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person.' xxx xxx xxx In the case at bar, the only evidence appreciable against the appellant Benjamin Ong regarding the surrounding circumstances of Henry Chua's death are (1) the extrajudicial statement of Benjamin Ong, (2) the testimony of Benjamin Ong during the trial, (3) the testimony of agent Enrique Lacanilao about the reenactment of the crime. In the extrajudicial statement (Exhibit N) Benjamin Ong said that from the Wigwam nightclub, Henry Chua and he rode on Henry's Mustang car with the latter driving it. Fernando Tan and his friend were in the Biscayne car of Benjamin Ong following the Mustang. (Answer to Question No. 40, p. 3, Exh. N). At Araneta Avenue in Quezon City, Benjamin Ong requested Henry Chua to stop the car to enable him to urinate. When Henry Chua complied, Fernando Tan and his friend stopped in front of the Mustang car, pretending to be policemen, and ordered Henry Chua to go with them to the police precinct. (Id., p. 5) Fernando Tan drove the Biscayne car, while Benjamin Ong in Henry Chua's car followed. From Araneta Avenue, Fernando Tan drove to Novaliches where Henry Chua was killed. (Id.) It will be noted that no appreciable time elapsed from arrival at Novaliches up to the time Henry Chua was killed, to indicate a separate intention to deprive the latter of his liberty. When Benjamin Ong testified on September 22, 1971, he

affirmed his admission of responsibility for the death of Henry Chua (t.s.n., Sept. 22, 1971, p. 26). He further testified as follows: ATTY. QUISUMBING: QIn this statement Exhibit "N", you admitted that Henry Chua was taken from the mustang car and transferred to the biscayne car and then brought to that uninhabited place in having the late Henry Chua taken from his ar and brought to Makatipo? AMy purpose was just to kill him, and there is not going to be any delay. QWas there any purpose of detaining him for sometime? xxx xxx xxx ANo, there was no purpose to detain him any further. (Id., pp. 27-28) The narration of agent Enrique Lacanilao about the re-enactment of the crime showed that there was no detention of the deceased Henry Chua for any length of time. He was killed and promptly buried. (Please see pp. 43-47, t.s.n., Sept. 18, 1971). On the basis of the foregoing evidence, the accused can hardly be held liable for kidnapping as well. It may not be amiss to state that an accused is entitled to acquittal unless his guilt is shown by proof beyond reasonable doubt. (Rule 133, Section 1, Revised Rules of Court). The evidence at hand hardly satisfied the requirement of proof beyond reasonable doubt as to the charge of kidnapping. The necessary result is that the accused can be held liable only for the killing of Henry Chua." [Brief for the Appellant Benjamin Ong y Kho, pp. 43 to 56] And the evidence on record clearly show that Henry Chua voluntarily went with Benjamin Ong when they left the Wigwam Nightclub at Paraaque at about 1:30 a.m. on April 24, 1971, so much so that they rode in the car of Chua and it was driven by Chua himself. The two drove straight down Roxas Boulevard, then to Quiapo, and Quezon Boulevard Extension in Quezon. City; and after passing Sto. Domingo Church, they made a turn towards a dirt road leading to Del Monte Avenue. When they reached a dark and secluded place, Benjamin Ong urged Chua to stop the car for the former to urinate to which the latter obliged. The Biscayne car where Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio were riding, stopped. Fernando Tan poked his gun at Chua and pulled him down from his Mustang car with Ambrosio giving help. His hands were tied, his mouth gagged with a flannel cloth, and he was placed in the Biscayne car. Tan and Bienvenido Quintos then rested their feet on him. Then Ambrosio drove the Biscayne while Ong drove the Mustang. They proceeded towards Barrio Makatipo, Novaliches, Caloocan City, where Henry Chua was stabbed to death and buried.

In other words, the time interval when the deceased Henry Chua was actually deprived of his liberty was short (from Del Monte Avenue to Barrio Makatipo, Novaliches, Caloocan); and the same was only incidental to the main objective of murdering him. The only authority cited by the prosecution on this point is that of the case of Parulan vs. Rodas (88 Phil. 615). But the ruling in the Parulan case cannot be applied to the case at bar, because in the Parulan case, the Court found that the kidnapping was a necessary means for the purpose of extorting ransom from the victim and killing him if the desired amount could not be given; and that the defendants had to kidnap or carry the victim from Manila (where he was already deprived of his liberty, with Parulan poking his gun on the victim), to a faraway and secluded place (a river in Bambang, Bulacan) in order to better secure the consent of the victim through fear to pay the ransom, and kill him if he refuses to accede to their demands, as in fact he was killed by Parulan because of his (victim's) refusal to pay the ransom.

We Hold that Both Appellants are Guilty of Murder

The killing of the victim in this case was attended by several qualifying and aggravating circumstances. The facts on record prove this, beyond reasonable doubt, even if we were to disregard the extrajudicial confession of Benjamin Quintos which he denied and was allegedly extracted from him through force and intimidation. Treachery (alevosia) qualified the killing to murder. Undisputed facts show that Henry Chua's hands were tied and his mouth was gagged with a flannel cloth before he was stabbed twice with an icepick and buried in a shallow grave near a creek. These facts portray well that the tied hands of the victim rendered him defenseless and helpless thereby allowing the accused to commit the crime without risk at all to their person. 50 The accused Benjamin Ong and Bienvenido Quintos, however, were quick to insist that this circumstance should not be taken against them because they did not do the actual stabbing (which was done by Fernando Tan). Easily, the weakness of this claim can be discerned. Conspiracy, connivance and unity of purpose and intention among the accused were present throughout in the execution of this crime. The four participated in the planning and execution of the crime and were at the scene in all its stages. They cannot escape the consequence of any of their acts even if they deviated in some detail from what they originally thought of. Conspiracy implies concert of design and not participation in every detail of execution. 51 Thus, treachery should be considered against all persons participating or cooperating in the perpetration of the crime. 52 With regards to the aggravating circumstance of abuse of superior strength, the same should be deemed absorbed in treachery. This position is itself supported by the Acting Solicitor General in his brief and is sustained in a long line of decisions. 53 In the same vein, the accused would like the aggravating circumstance of nighttime (nocturnidad) to be absorbed in treachery in that it forms part of the peculiar treacherous means and manner adopted to insure the execution of the crime. The case of People vs. Berdida 54 provides the exception to this rule and is applicable to the case at bar. It was there held that: "From the facts and evidence of record in this case, it is clear that appellants took advantage of nighttime in committing the felonies charged. For it appears that to carry out a sentence they had pronounced upon Antonio Maravilla and Federico Caalete for the death of one Pabling, they had evidently chosen to execute their victims under the cover of darkness, at the dead of night, when the neighborhood was asleep. Inasmuch as the treachery consisted in the fact that the victims' hands were tied at the time they were beaten, the circumstance of nighttime is not absorbed in treachery, but can be perceived distinctly therefrom, since the treachery rests upon an independent factual basis. A special case therefore is present to which the rule that nighttime is absorbed in treachery does not apply." 55 This aggravating circumstance was correctly appreciated by the lower court regardless of whether or not the same was purposely and deliberately sought by the accused for it is clear that the darkness of the night facilitated the commission of the crime and was taken advantage of by them. 56 The purposive selection of an uninhabited place (despoblado) is likewise clear from the evidence. The killing was done in Barrio Makatipo, Novaliches, Caloocan City, an isolated place that resembled that of an abandoned subdivision. The place was ideal not merely for burying the victim but also for killing him for it was a place where the possibility of the victim receiving some help from third persons was completely absent. The accused sought the solitude of the place in order to better attain their purpose without interference, and to secure themselves against detection and punishment. 57As aptly stated in the "Sentence" of the lower court: ". . . The possibility of the victim calling for succor or assistance from any third person was ruled out by the chosen site. Trees, lush vegetation and thick cogon grasses hide the place where the crime was committed from the view of even a chance passerby. The choice of an uninhabited place for the killing of Henry Chua, therefore, further aggravated the offense committed by the accused. People vs. Curiano, L-15256-57, October 31, 1962; U.S. vs. Vitug, 17 Phil. 1)." 58

In the case of the aggravating circumstance of abuse of confidence (abuso de confianza), it appears that the lower court wrongly appreciated this circumstance. In order for this circumstance to obtain, it is necessary that there be a relation of trust and confidence between the accused and the one against whom the crime was committed, and that the accused made use of such relation to commit the crime. 59 It is essential too that the confidence be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence. 60 Nowhere in the records does it appear that Henry Chua reposed confidence upon the person of Benjamin Ong. If any, Henry Chua was simply not afraid of Benjamin Ong, having told and bragged to the latter about his violent exploits in the past and threatened him with bodily harm in case of failure to pay. 61 He knew that he was far stronger than Benjamin Ong in terms of influence and money. He thought that Benjamin Ong would fear him. The fact that Henry Chua invited Ong for nightclubbing that fatal evening and accommodated him in his car on their way home from the nightclub does not mean that Henry Chua had confidence in him. There was no special relation of confidence between them. He knew that Benjamin owed him a substantial amount and that its settlement had long been overdue which fact irritated him very much. Benjamin Ong and Henry Chua were together that night in the nightclub as well as in the car not because of said confidence. It was simply because Benjamin Ong had some accounts to settle with him. Thus, in the case of U.S. vs. Cruz, et al., 62 it was held that: ". . . The fact of Cabaya having simulated friendship and desire for work, together with the companions who went with him, and the fact that he received food and work immediately upon being accepted by the Americans to work in the mines, is not, as stated in the judgment, a degree of treachery, according to law, sufficient to constitute the aggravating circumstance of abuse of confidence. It may however, be argued as unworthy conduct and ingratitude, but not as abuse of confidence. It is necessary first to show what has been the confidence granted or given in order to determine whether there was or was not an abuse of it, and in the present case there is nothing to show what the confidence given or conceded to Cabaya was, that could facilitate the commission of the crime." Likewise, in the case of People vs. Brocal, 63 it was held that: "There is no abuse of confidence in attempted rape where on the day of the crime the accused was in the company of the offended girl, not because of her confidence in him, but because they were partners in a certain business." More convincing this time is the aggravating circumstance of use of motor vehicle in the commission of the crime. The Biscayne car of Benjamin Ongwas used in trailing the victim's Mustang car from Wigwam Nightclub up to the time that it was overtaken and blocked. It carried the victim on the way to the scene of the killing; it contained at its baggage compartment the pick and shovel used in digging the grave; it was the fast means of fleeing and absconding from the scene. Again, the motor vehicle facilitated the stark happening. It has been held that the use of a motor vehicle is aggravating in murder where the said vehicle was used in transporting the victim and the accused. 64 Cruelty (ensaamiento), as an aggravating circumstance, cannot be considered here. The brief of the Acting Solicitor General agrees with that of the accused in denying the attendance of cruelty as an aggravating circumstance. Indeed, as it appears from the record, the group intended merely to kill the victim, bury him, and flee from the locale of the fearful crime. For cruelty to exist, it must be shown that the accused enjoyed and delighted in making their victim suffer slowly and gradually, causing him unnecessary physical or moral pain in the consummation of the criminal act. 65 Even granting that the victim died because of asphyxiation when he was buried and not hemorrhage from stab wounds, as testified to by Dr. Ibarrola 66 , which however, has been contradicted by his own necropsy report which shows that the cause of death was the "punctured wounds in the abdomen," and by Dr. Lara who testified that the two wounds could have produced death due to shock, it appears that the victim's burial was not meant to make him suffer any longer but simply to conceal his body and the crime itself.

Concededly, the qualifying circumstance of evident premeditation (premeditacion conocida) attended the commission of the crime. What else can better portray this circumstance than the frequent meetings 67 of the four accused at

the Barrio Fiesta Restaurant in order to discuss, lay out the plan, and secure the different paraphernalia consisting of the rope, icepick, flannel cloth, flashlight and shovel 68 . Added to this is the careful selection of an "ideal" site for the grissly happening 69 . Similarly, the plan to go to Taipeh and Hongkong immediately after the incident pictures the presence of evident premeditation 70 . The accused meditated and tenaciously persisted in the accomplishment of the crime and were not prompted merely by the impulse of the moment. 71 The claim of the accused Benjamin Ong that the mitigating circumstance of plea of guilty should be appraised in his favor, is hereby sustained. Indeed, the kidnapping portion of the crime cannot be appreciated here beyond reasonable doubt as stated at the outset. Furthermore, it can be seen that the prosecution alleged so many aggravating circumstances which should be absorbed in one or the other. To plead guilty to this information naturally would be most unfair for the accused especially where the penalty would be the capital punishment of death. The accused showed signs of remorsefulness upon his arrest when he cooperated with the police authorities in the solution of the crime. As held in the case of People vs. Yturriaga72 , ". . . It only remains to consider briefly whether the defendant's plea of guilty in the form it was entered constitutes a voluntary confession of guilt before the court as defined in the same subsection of Article 13. We think it does. "Although the confession was qualified and introduction of evidence became necessary, the qualification did not deny the defendant's guilt and, what is more, was subsequently fully justified. It was not the defendant's fault that aggravating circumstances were erroneously alleged in the information and mitigating circumstances omitted therefrom. If such qualification could deprive the accused of the benefit of plea of guilty, then the prosecution could nullify this mitigating circumstance by counteracting it with unfounded allegations of aggravating circumstances." We hold that the accused Benjamin Ong is likewise entitled to the mitigating circumstance that is analogous to passion and obfuscation (Art. 13, par. 10, Revised Penal Code), based on the following facts stated in his brief: a)Henry Chua and his companions went to the office of Benjamin Ong. In a loud voice, with angry gestures, and in the presence of his subordinates and fellow employees, Henry Chua demanded payment, and threatened bodily harm to him and his family. b)Henry Chua went as far as to threaten the life of Benjamin Ong unless his obligation to Chua was paid. "If you treasure your life, you better pay first." c)Because of this incident, he, Benjamin Ong, "was humiliated." d)His brother-in-law, Chua Pak, told him that he was holding a very responsible position in the company and so he should not be involved in any scandal. e)He was "discredited and degraded in front of my brother-in-law." He was so embarrassed, he finally tendered his resignation from the company. f)Because of the threat of Henry Chua, the accused tried to get money from all sources but he was not successful. The allotted time was so short. To relieve him of the pressure brought to bear upon him to pay his gambling debt, he even thought of embezzling money belonging to the company in which he worked. g)Because of his inability to raise money to be paid to Henry Chua, he became "deeply depressed." He felt: "I was being turned into a criminal. h)He begged Henry Chua to give him more time to raise the money. "Nagmamakaawa na ako sa kanya." This was the night before Henry Chua was killed. If Henry Chua had granted him time "the whole plan to kill Henry Chua might not materialize." But Henry Chua, while not relenting, but perhaps in utter contempt and disdain of Benjamin Ong instead decided to transfer from Amihan to Wigwam because he wanted to be entertained by a

hostess. Henry Chua, it will be noted, was well known to Wigwam hostess, Ligaya Tamayo. Benjamin Ong was seen by her for the first time that evening. i)So while Chua enjoyed himself, Benjamin Ong was worried, as he pleaded with Henry Chua in vain for more time to pay the obligation. xxx xxx xxx In People vs. Timoteo Olgado, et al (L-4406, March 31, 1952; 91 Phil. 908 Unrep.), the two accused were provoked to commit two murders because of the indecent propositions made to the women by Jalumio and his companions. For Mario Aninias, this is the mitigating circumstance of passion and obfuscation or vindication of a grave offense to his wife. 73 In this regard, accused Benjamin Ong filed on October 10, 1973 before this Court a Petition for New Trial and/or to Consider Case as Simple Murder.74 In this petition, Benjamin Ong's wife, Athena Caw Siu Tee Ong, alleged in an affidavit an incident when her husband refused to allow her to testify on during the regular trial in the lower court. She said that Benjamin Ong suppressed it because it would be a source of "great shame" to their family. Indeed, the records show how Benjamin Ong's counsel vainly convinced him to tell it but he refused to do so. 75 Lately, Benjamin Ong has changed his mind and has consented to his wife's divulging the story. Said story simply consists of Henry Chua's proposal of love and attempted rape allegedly committed on the person of Athena on April 15, 1971 which Henry Chua asked in lieu of the payment of the gambling debt. However, this matter is now academic because it would only tend to bolster the mitigating circumstance that is analogous to passion and obfuscation, which we have just considered in favor of the accused Benjamin Ong. IN VIEW OF ALL THE FOREGOING, the two accused-appellants Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag, are hereby found guilty beyond reasonable doubt of the crime of murder with the attendant qualifying circumstance of treachery, and the aggravating circumstances of evident premeditation and use of motor vehicle. These two circumstances are offset by the mitigating circumstances of plea of guilty and one similar or analogous to passion or obfuscation which are appreciated in favor of accused-appellant Benjamin Ong who is hereby sentenced to reclusion perpetua. Justices Teehankee and Makasiar, however, are of the opinion that the crime committed by the two accused-appellants Benjamin Ong and Bienvenido Quintos is kidnapping with murder and that the kidnapping was conceived for the purpose of extorting ransom, among other motives. The members of the Court failed to arrive at a clear consensus on the existence of the aggravating circumstances of "nighttime" and "uninhabited place" (which Justice Barredo, in his concurring and dissenting opinion, concluded do not obtain in this case). With respect to the accused-appellant Bienvenido Quintos, although no mitigating circumstance can be appreciated in his favor, and he should therefore be sentenced to death, the Court hereby imposes upon him the penalty of reclusion perpetua and not death, because of Our conclusion that his co-accused-appellant Benjamin Ong should be sentenced only to reclusion perpetua, and because Justice Barredo, in his concurring and dissenting opinion, even concluded that Bienvenido Quintos is guilty only as an accomplice; and hence, in any event, We would not have the necessary ten votes for the imposition of the death penalty upon said accused-appellant. As We hereby sentence the two accused-appellants Benjamin Ong and Bienvenido Quintos to suffer the penalty of reclusion perpetua, We affirm that part of the decision under review, which sentenced them jointly and severally to indemnify the heirs of the deceased Henry Chua in the amount of P12,000.00; to pay moral damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages; and to pay their proportionate share of the costs, as We find no reason to disturb the same.

Makalintal, C.J., Teehankee, Makasiar, Antonio, Esguerra, Muoz Palma and Aquino, JJ., concur. Castro, J., concurs in the result. Fernando, J., did not take part.

FIRST DIVISION

[G.R. No. L-28232. February 6, 1971.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAAL Y SEVILLA, defendants-appellants.

DECISION

PER CURIAM p: The amended complaint filed in this case in the court below, reads as follows: "The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. alias "BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAAL Y SEVILLA alias "ROGER," as principals, WONG LAY PUENG, SILVERIO GUANZON Y ROMERO and JESSIE GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape, committed as follows: "That on or about the 26th day of June, 1967, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named principal accused, conspiring together, confederating with and mutually helping one another, did, then and there, wilfully, unlawfully and feloniously, with lewd design, forcibly abduct the undersigned complainant against her will, and did, then and there take her, pursuant to their common criminal design, to the Swanky Hotel in Pasay City, where each of the four (4) accused, by means of force and intimidation, and with the use of a deadly weapon, have carnal knowledge of the undersigned complainant against her will, to her damage and prejudice in such amount as may be awarded to her under the provisions of the civil code. "That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y ENVOLTARIO, without taking a direct part in the execution of the offense either by forcing, inducing the principal accused to execute, or cooperating in its execution by an indispensable act, did, then and there cooperate in the execution of the offense by previous or simultaneous acts, that is, by cooperating, aiding, abetting and permitting the principal accused in sequestering the undersigned complainant in one of the rooms of the Swanky Hotel then under the control of the accused Wong Lay Pueng, Silverio Guanzon y Romero and Jessie Guion y Envoltario, thus supplying material and moral aid in the consummation of the offense. "That the aforestated offense has been attended by the following aggravating circumstances: 1.Use of a motor vehicle. 2.Night time sought purposely to facilitate the commission of the crime and to make its discovery difficult; 3.Abuse of superior strength; 4.That means were employed or circumstances brought about which added ignominy to the natural effects of the act; and 5.That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for the commission.

"CONTRARY TO LAW." Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted amended complaint; however, in an order dated July 11, 1967, the court reserved judgment "until such time as the prosecution shall have concluded presenting all of its evidence to prove the aggravating circumstances listed in the complaint." Upon the other hand, the rest of the defendants went to trial on their respective pleas of not guilty. After hearing on the merits, the court below rendered its decision on October 2, 1967, the dispositive portion of which reads as follows: "WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Caal, Eduardo Aquino and Basilio Pineda, Jr. guilty beyond reasonable doubt of the crime of forcible abduction with rape as described under Art. 335 of the Revised Penal Code, as emended, and hereby sentences each of them to the death penalty to be executed at a date to be set and in the manner provided for by law; and each to indemnify the complainant in the amount of ten thousand pesos. On the ground that the prosecution has failed to establish a prima facie case against the accomplices Wong Lay Pueng, Silverio Guanzon y Romero, and Jessie Guion y Envoltario, the Motion to Dismiss filed for and in their behalf is hereby granted, and the case dismissed against the aforementioned accused. "Insofar as the car used in the abduction of the victim which Jaime Jose identified by pointing to it from the window of the courtroom and pictures of which were submitted and marked as Exhibits "M" and "M-1," and which Jaime Jose in his testimony admitted belonged to him, pursuant to Art. 45 of the Revised Penal Code, which requires the confiscation and forfeiture of the proceeds or instruments of the crime, the Court hereby orders its confiscation." This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo Aquino, and Jaime Jose, and for automatic review as regards Rogelio Caal. However, for practical purposes all of them shall hereafter be referred to as appellants. The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old and single; she graduated from high school in 1958 at Maryknoll College and finished the secretarial course in 1960 at St. Theresa's College. Movie actress by profession, she was receiving P8,000.00 per picture. It was part of her work to perform in radio broadcasts and television shows, where she was paid P800.00 per month in permanent shows, P300.00 per month in live promotional shows, and from P100.00 to P200.00 per appearance as guest in other shows. So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward bound from the ABS Studio on Roxas Blvd., Pasay City, was driving her bantam car accompanied by her maid Helen Calderon, who was also at the front seat. Her house was at No. 48, 12th Street, New Manila, Quezon City. She was already near her destination when a Pontiac two-door convertible car with four men aboard (later identified as the four appellants) came abreast of her car and tried to bump it. She stepped on her brakes to avoid a collision, and then pressed on the gas and swerved her car to the left, at which moment she was already in front of her house gate; but because the driver of the other car (Basilio Pineda, Jr.) also accelerated his speed, the two cars almost collided for the second time. This prompted Miss De la Riva, who was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car which he was driving, jumped out of it and rushed towards her. The girl became so frightened at this turn of events that she tooted the horn of her car continuously. Undaunted, Pineda opened the door of Miss De la Riva's car and grabbed the lady's left arm. The girl held on tenaciously to her car's steering wheel and, together with her maid, started to scream. Her strength, however, proved no match to that of Pineda, who succeeded in pulling her out of her car. Seeing her mistress' predicament, the maid jumped out of the car and took hold of Miss De la Riva's right arm in an effort to free her from Pineda's grip. The latter, however, was able to drag Miss De la Riva toward the Pontiac convertible car, whose motor was all the while running. When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the three men inside started to assist their friend: one of them held her by the neck, while the two others held her arms and legs. All three were now pulling Miss De la Riva inside the car. Before she was completely in, appellant Pineda jumped unto the driver's seat and sped away in the direction of Broadway Street. The maid was left behind.

The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat; Basilio Pineda, Jr. was at the wheel, while Rogelio Caal was seated beside him. Miss De la Riva entreated the appellants to release her; but all she got in response were jeers, abusive and impolite language, and threats that the appellants would finish her with their Thompson and throw acid at her face if she did not keep quiet. In the meantime, the two men seated on each side of Miss De la Riva started to get busy with her body: Jose put one arm around the complainant and forced his lips upon hers, while Aquino placed his arms on her thighs and lifted her skirt. The girl tried to resist them. She continuously implored her captors to release her, telling them that she was the only breadwinner in the family and that her mother was alone at home and needed her company because her father was already dead. Upon learning of the demise of Miss De la Riva's father, Aquino remarked that the situation was much better than he thought since no one could take revenge against them. By now Miss De la Riva was beginning to realize the futility of her pleas. She made the sign of the cross and started to pray. The appellants became angry and cursed her. Every now and then Aquino would stand up and talk in whispers with Pineda, after which the two would exchange knowing glances with Caal and Jose. The car reached a dead-end street. Pineda turned the car around and headed towards Victoria Street. Then the car proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to Epifanio de los Santos Avenue. When the car reached Makati, Aquino took a handkerchief from his pocket and, with the help of Jose, blindfolded Miss De la Riva. The latter was told not to shout or else she would be stabbed or shot with a Thompson. Not long after, the car came to a stop at the Swanky Hotel in Pasay City. The blindfolded lady was led out of the car to one of the rooms on the second floor of the hotel. Inside the room Miss De la Riva was made to sit on bed. Her blindfold was removed. She saw Pineda and Aquino standing in front of her, and Jose and Caal sitting beside her, all of them smiling meaningfully. Pineda told the complainant: "Magburlesque ka para sa amin." The other three expressed their approval and ordered Miss De la Riva to disrobe. The complainant ignored the command. One of the appellants suggested putting off the light so that the complainant would not be ashamed. The idea, however, was rejected by the others, who said that it would be more pleasurable for them if the light was on. Miss De la Riva was told to remove her stockings, in order, according to them, to make the proceedings more exciting. Reluctantly, she did as directed, but so slowly did she proceed with the assigned task that the appellants cursed her and threatened her again with the Thompson and the acid. They started pushing Miss De la Riva around. One of them pulled down the zipper of her dress; another unhooked her brassiere. She held on tightly to her dress to prevent it from being pulled down, but her efforts were in vain: her dress, together with her brassiere, fell on the floor.

The complainant was now completely naked before the four men, who were kneeling in front of her and feasting their eyes on her private parts. This ordeal lasted for about ten minutes, during which the complainant, in all her nakedness, was asked twice or thrice to turn around. Then Pineda picked up her clothes and left the room with his other companions. The complainant tried to look for a blanket with which to cover herself, but she could not find one. Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was sitting on the bed trying to cover her bareness with her hands, implored him to ask his friends to release her. Instead of answering her, he pushed her backward and pinned her down on the bed. Miss De la Riva and Jose struggled against each other; and because the complainant was putting up stiff resistance, Jose cursed her and hit her several times on the stomach and other parts of the body. The complainant crossed her legs tightly, but her attacker was able to force them open. Jose succeeded in having carnal knowledge of the complainant. He then left the room. The other three took their turns. Aquino entered the room next. A struggle ensued between him and Miss De la Riva, during which he hit her on different parts of the body. Like Jose, Aquino succeeded in abusing the complainant. The girl was now in a state of shock. Aquino called the others into the room. They poured water on her face and slapped her to revive her. Afterwards, three or the accused left the room, leaving Pineda and the complainant. After some struggle during which Pineda hit her, the former succeeded in forcing his carnal desire on the latter. When the complainant went into a state of shock for the second time, the three other men went into the room, again poured water on the complainant's face and slapped her several times. The complainant heard them say that they had to revive her so she would know what was happening. Jose, Aquino and Pineda then left the room. It was now

appellant Caal's turn. There was a struggle between him and Miss De la Riva. Like the other three appellants before him, he hit the complainant on different parts of the body and succeeded in forcing his carnal lust on her. Mention must be made of the fact that while each of the four appellants was struggling with the complainant, the other three were outside the room, just behind the door, threatening the complainant with acid and telling her to give in because she could not, after all, escape, what with their presence. After the appellants had been through with the sexual carnage, they gave Miss De la Riva her clothes, told her to get dressed and put on her stockings, and to wash her face and comb her hair, to give the impression that nothing had happened to her. They told her to tell her mother that she was mistaken by a group of men for a hostess, and that when the group found out that she was a movie actress, she was released without being harmed. She was warned not to inform the police; for if she did and they were apprehended, they would simply post bail and later hunt her up and disfigure her face with acid. The appellant then blindfolded Miss De la Riva again and led her down from the hotel room. Because she was stumbling, she had to be carried into the car. Inside the car, appellant Jose held her head down on his lap, and kept it in that position during the trip, to prevent her from being seen by others. Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva. They finally decided on a spot in front of the Free Press Building not far from Epifanio de los Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had just come from the studio. Pineda asked Jose to alight and call a taxicab, but to choose one which did not come from a well-known company. Jose did as requested, letting several taxicabs pass by before flagging a UBL taxicab. After they warned again Miss De la Riva not to inform anyone of what had happened to her, appellant Caal accompanied her to the taxicab. The time was a little past 6:00 o'clock. When Miss De la Riva was already inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was following them; and each time the driver answered her in the negative. It was 6:30 o'clock or some two hours after the abduction when Miss De la Riva reached home. Her mother, her brother-in-law Ben Suba, as well as several PC officers, policemen and reporters, were at the house. Upon seeing her mother, the complainant ran toward her and said, "Mommy, Mommy, I have been raped. All four of them raped me." The mother brought her daughter upstairs. Upon her mother's instruction, the complainant immediately took a bath and a douche. The older woman also instructed her daughter to douche herself two or three times daily with a strong solution to prevent infection and pregnancy. The family doctor, who was afterwards summoned, treated the complainant for external physical injuries. The doctor was not, however, told about the sexual assaults. Neither was Pat. Pablo Pascual, the police officer who had been sent by the desk officer, Sgt. Dimla, to the De la Riva residence when the latter received from a mobile patrol a report of the snatching. When Miss De la Riva arrived home from her harrowing experience, Pat. Pascual attempted to question her, but Ben Suba requested him to postpone the interrogation until she could be ready for it. At that time, mother and daughter were still undecided on what to do. On the afternoon of June 28, 1967, the complainant's family gathered to discuss what steps, if any, should be taken. After some agonizing moments, a decision was reached: the authorities had to be informed. Thus, early on the morning of June 29, 1967, or on the fourth day after the incident, Miss De la Riva, accompanied by her lawyer, Atty. Regina O. Benitez, and by some members of the family, went to the Quezon City Police Department Headquarters, filed a complaint and executed a statement (Exh. "B") wherein she narrated the incident and gave descriptions of the four men who abused her. In the afternoon of the same day, the complainant submitted herself to a medico-internal examination by Dr. Ernesto Brion, NBI Chief Medico-Legal Officer. During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual was also at the NBI office. There he received a telephone call from the police headquarters to the effect that one of the suspects had been apprehended. That evening, the complainant and Pat. Pascual proceeded to the headquarters where Miss De la Riva identified appellant Jaime Jose from among a group of persons inside the Office of the Chief of Police of Quezon City as one of the four men who abducted and raped her. She executed another statement (Exh. "B-1") wherein she made a formal identification of Jose and related the role played by him. At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I") before Pat. Marcos G. Vias. In his statement, which was duly sworn, Jose admitted that he knew about, and was involved in, the June 26 incident. He named the other three appellants as his companions. Jose stated, among other things, that upon the initiative of Pineda, he and the other three waited for Miss De la Riva to come out of the ABS Studio; that his group

gave chase to the complainant's car; that it was Pineda who blindfolded her; and that on]y Pineda and Aquino criminally assaulted the complainant. After Exh. "I" was executed by Jose, an informant furnished Pat. Vias with a picture of appellant Edgardo Aquino. The picture was shown to Miss De la Riva, who declared in her sworn statement (Exh. "B-3") that the man in the picture was one of her abductors and rapists. The same picture was shown to Jose, who, in another sworn statement (Exh. "I-1"), identified the man in the picture as appellant Aquino. After the apprehension of Jose, the other three soon fell into the hands of the authorities: Pineda and Caal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in the province of Batangas. On the evening of July 1, 1967, Miss De la Riva pointed to Pineda and Caal as among the four persons who abducted and raped her. She picked them out from among several persons in the Office of the Chief of Police of Quezon City. Later in the same evening, Miss De la Riva executed a sworn statement (Exh. "B-2") wherein she made the same identification of the two appellants from among a group of persons in the Office of the Chief of the Detective Bureau, adding that appellant Caal had tatoo marks on his right hip. After the identification, one of the policemen took appellant Caal downstairs and undressed him, and he saw, imprinted on the said appellant's right hip, the words "Bahala na Gang." Appellant Caal and Pineda executed and swore to separate statements on the day of their arrest. In his statement (Exh. "G"), appellant Caal confirmed the information previously given by Jose that the four of them waited for Miss De la Riva to come down from the ABS Studio, and that they had planned to abduct and rape her. Appellant Caal admitted that all four of them participated in the commission of the crime, but he would make it appear that insofar as he was concerned the complainant yielded her body to him on condition that he would release her. Pineda executed a statement (Exh. "J") stating that he and his other three companions went to the ABS Studio, and that, on learning that Miss De la Riva was there, they made plans to wait for her and to follow her. He admitted that his group followed her car and snatched her and took her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily acceded to having sexual intercourse with him. In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises on different parts of the complainant's body, as well as of genital injuries. On the witness stand the doctor was shown several photographs of the complainant taken in his presence and under his supervision. With the aid of the photographs and the medical reports, the doctor explained to the court that he found contusions or bruises on the complainant's chest, shoulders, arms and fore-arms, right arm index finger, thighs, right knee and legs. He also declared that when he was examining her, Miss De la Riva complained of slight tenderness around the neck, on the abdominal wall and at the sides of the extragenital physical injuries, and that on pressing the said injuries, he elicited a sigh of pain or tenderness on the part of the subject. The injuries, according to Dr. Brion, could have been caused by blows administered by a closed fist or by the palm of the hand, and could have been inflicted on the subject while she was being raped. It was the doctor's opinion that they could have been sustained on or about June 26, 1967. In connection with the genital examination, the doctor declared that he found injuries on the subject's genitalia which court have been produced by sexual intercourse committed on June 26, 1967. He said that he failed to find spermatozoa. He explained. however, that spermatozoa are not usually found in the vagina after the lapse of three days from the last intercourse, not to mention the possibility that the subject might have douched herself.

The three appellants who pleaded not guilty (Jose, Aquino and Caal) took the witness stand. We quote hereunder the portions of the decision under review relative to the theory of the defense: "Their story is that they and their co-accused Pineda had gone to the Ulog Cocktail Lounge somewhere in Mabini street in Manila, and there killed time from 9:30 in the evening of June 25 until closing time, which was about 3:30 in the early morning of the next day. At the cocktail lounge they had listened to the music while enjoying some drinks. Between them they had consumed a whole bottle of whisky, so much so that at least Aquino became drunk, according to his own testimony. They had been joined at their table by a certain Frankie whom they met only that night. Come time to go home, their new acquaintance asked to be dropped at his home in Cubao. The five men piled into the red-bodied, black topped two-door convertible Plymouth (Pontiac) car of Jaime Jose, and with Pineda at the wheel repaired to Cubao. After dislodging their new friend, Pineda steered the car to Espaa Extension to bring Aquino to his home in

Mayon Street. But somewhere in Espaa Extension before the Rotonda a small car whizzed past them almost hitting them. They saw that the driver was a woman. Pineda gave chase and coming abreast of the small car he shouted, 'Putang ina mo, kamuntik na kaming mamatay.' The woman continued on her way. Now Pineda saying, 'let us teach her a lesson,' sped after her and when she swerved ostensibly to enter a gate, Pineda stopped his car behind hers, hurriedly got down, striding to the small car, opened the door and started dragging the girl out. Both Jose and Aquino confirm the presence of another woman inside the girl's car, who helped the girl struggle to get free from Pineda's grip; and that the struggle lasted about ten minutes before Pineda finally succeeded in pushing the girl into the red convertible. All the three accused insist they did nothing to aid Pineda; but they also admit that they did nothing to stop him. "Now the defense contends that Pineda cruised around and around the area just to scare the girl who was in truth so scared that she begged them to let her be and return her to her home. She turned to Jose in appeal, but this one told her he could not do anything as the 'boss' was Pineda. Aquino heard her plead with Jose 'do you not have a sister yourself?' but did not hear the other plea 'do you not have a mother?' Then Pineda stopped at the corner of the street where he had forcibly snatched the girl presumably to return her, but then suddenly changing his mind he said, 'why don't you do a strip tease for us. I'll pay you P1,000.00' and the girl taunted, 'are you kidding?'; that after a little while she consented to do the performance as long as it would not last too long and provided the spectators were limited to the four of them. "Pineda sped the car until they got to Swanky Hotel where he and Maggie alighted first, but not before Maggie had borrowed a handkerchief from one of them to cover her face as she went up the Hotel. The three followed, and when they saw the pair enter a room, they quickly caught up. All the three accused testify that as soon as they got into the room, Maggie de la Riva asked the boys to close the windows before she undressed in front of them. They themselves also removed their clothing. Two of them removed their pants retaining their briefs, while Boy Pineda and Caal stripped to the skin 'because it was hot.' The three accused declared that they saw Boy Pineda hand P100.00 to Maggie and they heard him promise her that he would pay the balance of P900.00 later. Whereupon, the show which lasted about 10 minutes began with the naked girl walking back and forth the room about 4 to 5 times. This accomplished all of them dressed up once more and the three accused (Jaime Jose, Eduardo Aquino and Rogelio Caal) left the room to wait in the car for Boy Pineda and Maggie de la Riva who were apparently still discussing the mode of payment of the balance. Three minutes later Maggie de la Riva and Boy Pineda joined them. Now, the question of how and where to drop Maggie came up and it is testified to by the accused that it was Maggie's idea that they should drop her near the ABS Studio so that it would appear as if she had just come from her work. "Jaime Jose was picked by the police on the morning of June 29 along Buendia Avenue. Aquino testifies how, on June 29 Pineda went to him with a problem. He did not have the P900.00 with which to pay Maggie the balance of her 'show' and he was afraid that if he did not pay, Maggie would have her goons after him. He wanted Aquino to go with him to Lipa City where he had relatives and where he could help raise the money. Aquino readily obliged, and to make the company complete they invited Caal to join them. They used another car of Jaime Jose, different from the one they had used the day before. At Lipa, Aquino detached himself from his companions and proceeded alone to the barrio allegedly to visit his relatives. In the meantime his two companions had remained in the City and had, according to Caal, gone to live in a house very close to the municipal hall building. They later moved to another house where the PC and Quezon City police posse found and arrested them. Aquino was the last to be apprehended, when having read in the newspapers that he was wanted, he surrendered on July 5 to Mrs. Aurelia Leviste, wife of the governor of Batangas." The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's credulity and reason, and had failed utterly to counteract the evidence for the prosecution, particularly the complainant's testimony and Dr. Brion's medical report and testimony. We quote with approval the able dissertation of the trial judge on this point: "As main defense in the charge of rape, the three accused advance the proposition that nothing happened in Swanky Hotel except a strip-tease exhibition which the complainant agreed to do

for them for a fee of P1,000.00, P100.00 down and the balance to be paid 'later.' The flaw in this contention lies in its utter inverisimilitude. The Court cannot believe that any woman exists, even one habitually engaged in this kind of entertainment (which Maggie de la Riva has not been proven to be) who would consent (and as easily and promptly as defense claims) to do a performance, not even for all money in the world after the rough handling she experienced from these wolves in men's clothing who now hungered for a show. There is no fury to match a woman stirred to indignation. A woman's pride is far stronger than her yen for money, and her revenge much more keen. The Court cannot believe that after the rudeness and meanness of these men to her, Maggie would in so short an internal of time forget her indignation and so readily consent to satisfy their immoral curiosity about her. The woman in her would urge her to turn the men's hankering as a weapon of revenge by denying them their pleasure. "Besides, the manner of payment offered for the performance is again something beyond even the wildest expectations. Assuming that the woman whom the accused had abducted was in this kind of trade and assuming that the price offered was to her satisfaction, what woman would be willing to perform first and be paid later? It is simply preposterous to believe that Maggie de la Riva should have consented to do a strip-tease act for a measly down-payment of P100.00 and the balance to be paid God knows when. Since when are expositions of the flesh paid on installment basis? By the very precarious nature of their pitiful calling, women who sell their attractions are usually very shrewd and it is to be expected that they would demand full payment before curtain call. How was Maggie to collect later when she did not even know who these men were, where they lived, whether they could be trusted with a promise to pay later (!) whether she would ever find them again? If there is anything that has struck the Court about the complainant, it is her courage, her intelligence and her alertness. Only a stupid woman, and a most stupid one at that, could have been persuaded to do what the defense wants this Court to believe Maggie de la Riva consented to do. "Finally, it is odd that not one of these men should have mentioned this circumstance during their interviews with anyone, either the press, their police interrogator, the persons who negotiated their surrender (as in the case of Aquino) or even their counsel. One cannot escape the very strong suspicion that this story is a last ditch, desperate attempt to save the day for the accused. It truly underscores the hopelessness of their stand and projects all the more clearly their guilt. "Then there is the incident of the men's stripping themselves. Why was there need for this? The Court realizes that in its desperate need of an explanation for Maggie's positive identification of Caal as the man with a tatoo mark on his right buttock, the defense concocted the sickeningly indecent story that the four men removed their underclothing in the presence of a woman simply 'because it was hot.' What kind of men were these who were so devoid of any sense of decency that they thought nothing of adding insult to injury by not only inducing a woman to strip before them, but of forcing her to perform before a naked audience? And then they have the gall to argue that 'nothing' happened. For males of cold and phlegmatic blood and disposition it could be credible, but not for men of the torrid regions like ours where quick passions and hot tempers are the rule rather than the exception!. "All of these considerations set aside, notwithstanding, it is quite obvious that the version of the defense has not been able to explain away a very vital piece of evidence of the prosecution which, if unexplained, cannot but reduce any defense unavailing. The result of the physical (external and internal) examination conducted on the person of Maggie de la Riva in the afternoon of June 29, the pertinent findings of which are quoted earlier in this decision, establish beyond doubt that at the time that Maggie de la Riva was examined she bore on her body traces of physical and sexual assault.

"The only attempt to an explanation made by the defense is either one of the following: (1) the insinuation that when Maggie de la Riva and Boy Pineda were left behind in the hotel room the

bruises and the sexual attack could have taken place then. But then, the defense itself says that these two persons rejoined the other three after three or four minutes! It is physically impossible, in such a short time, for Boy Pineda to have attacked the girl and inflicted on her all of these injuries; (2) it was suggested by the defense that Maggie de Riva could have inflicted all of those injuries upon herself just to make out a case against the accused. The examining physician rules out this preposterous proposition, verily it does not take much stretch of the imagination to see how utterly impossible this would be, and for what purpose? Was P900.00 which she had failed to collect worth that much self-torture? And what about all the shame, embarrassment and publicity she would (as she eventually did) expose herself to? If she really had not been raped would she have gone thru all of these tribulations? "A woman does not easily trump up rape charges for she has much more to lose in the notoriety the case will reap for her, her honor and that of her family, than in the redress she demands (Canastre, 82-480; Medina, C.A. 1943 O.G. 151; Medina y Puno, CA O. G. 338; CA 55 O. G. 7666; Galamiton, L-6302, August 25, 1954); (3) it could also be argued that the contusions and bruises could have been inflicted on Maggie during her struggle with Pineda when the latter pulled and pushed her into the red convertible car. The telltale injuries, however, discount this possibility, for the location in which many of the bruises and traumas were located (particularly on the inner portion of her thighs) could not have been caused by any struggle save by those of a woman trying to resist the brutal and bestial attack on her honor. "In their Memorandum the accused contend that Maggie's sole and uncorroborated testimony should not be rated any credence at all as against the concerted declaration of the three accused. In the first place, it is not correct to say that Maggie's declaration was uncorroborated she has for corroboration nothing less than the written extra-judicial statements of Jose and Caal. But even assuming that Maggie stood alone in her statements, the cases cited by the accused in their Memorandum notwithstanding which the Court does not consider in point anyway, jurisprudence has confirmed the ruling that numbers is the least vital element in gauging the weight of evidence. What is more important is which of the declarations is the more credible, the more logical, the more reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234; Damian CA-GR No. 25523, April 24, 1959). Besides, it should be borne in mind that in the most detestable crime of rape in which a man is at his worst the testimony of the offended party most often is the only one available to prove directly its commission and that corroboration by other eyewitnesses would in certain cases place a serious doubt as to the probability of its commission, so that courts of justice are most often placed in a position of having to accept such uncorroborated testimony if the same is in other regards conclusive, logical and probable (Landicho, VIII ACE 530)." We shall now consider the points raised by the appellants in their briefs. 1.Appellants Jose, Aquino and Caal deny having had anything to do with the abduction of Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously contend that even as to him the act was purged of any taint of criminality by the complainant's subsequent consent to perform a striptease show for a fee, a circumstance which, it is claimed, negated the existence of the element of lewd design. This line of defense has evidently no leg to stand on. The evidence is clear and overwhelming that all the appellants participated in the forcible abduction. Miss De la Riva declared on the witness stand, as well as in her sworn statements, that they helped one another in dragging her into the car against her will; that she did not know them personally; that while inside the car, Jose and Aquino, between whom she was seated, toyed with her body, the farmer forcing his lips on hers, and the latter touching her thighs and raising her skirt; that meaningful and knowing glances were in the meanwhile being exchanged among the four; and that all of them later took turns in ravishing her at the Swanky Hotel. This testimony, whose evidentiary weight has not in the least been overthrown by the defense, more than suffices to establish the crimes charged in the amended complaint. In the light thereof, appellants' protestation that they were not motivated by lewd designs must be rejected as absolutely without factual basis. 2.The commission of rape by each of the appellants has, as held by the court below, likewise been clearly established Jose, Aquino and Caal contend that the absence of semen in the complainant's vagina disproves the fact of rape. The contention is untenable. Dr. Brion of the NBI, who testified as an expert, declared that semen is not usually found in the vagina after three days from the last intercourse, especially if the subject has douched herself within

that period. In the present case, the examination was conducted on the fourth day after the incident, and the complainant had douched herself to avoid infection and pregnancy. Furthermore, the absence of spermatozoa does not disprove the consummation of rape, the important consideration being, not the emission of semen, but penetration (People vs. Hernandez, 49 Phil., 980). Aquino's suggestion that the abrasions on the cervix were caused by the tough tip of a noozle deliberately used by the complainant to strengthen her alleged fabricated tale of rape, is absurd, if not cruel. It is difficult to imagine that any sane woman, who is single and earning as much as Miss De la Riva did, would inflict injuries on her genital organ by puncturing the same with a sharply-pointed instrument in order to strike back at four strangers who allegedly would not pay her the sum of P900.00 due her for a strip-tease act. Besides, Dr. Brion testified that the insertion of such an instrument in the genital organ would not result in the kind of injuries he found in the mucosa of the cervix. 3.Other evidence and considerations exist which indubitably establish the commission of successive rapes by the four appellants. Upon Miss De la Riva's arrival at her house in the morning of June 26, 1967, she immediately told her mother, "Mommy, Mommy, I have been raped. All four of them raped me." This utterance, which is part of the res gestae, commands strong probative value, considering that it was made by the complainant to her mother who, in cases of this nature, was the most logical person in whom a daughter would confide the truth. Aquino and Caal would make capital of the fact that Miss De la Riva stated to the reporters on the morning of June 26, that she was not abused. Her statement to the press is understandable. At that time the complainant, who had not yet consulted her family on a matter which concerned her reputation as well as that of her family, and her career, was not then in a position to reveal publicly what had happened to her. This is one reason why the complainant did not immediately inform the authorities of the tragedy that befell her. Another reason is that she was threatened with disfiguration. And there were, of course, the traumas found by Dr. Brion on different parts of the complainant's body. Could they, too, have been self-inflicted? Or, as suggested, could they possibly have been inflicted by appellant Pineda alone, when the story given by the other three is that Pineda and the complainant were left in the hotel room for only three or four minutes, and that they came out to join them in what they would picture to be a cordial atmosphere, the complainant even allegedly suggesting that she be dropped on a spot where people would reasonably presume her to have come from a studio? Equally important is the complainant's public disclosure of her tragedy, which led to an examination of her private parts and lay her open to risks of future public ridicule and diminution of popularity and earnings as a movie actress. 4.Jose and Caal seek the exclusion of their extra-judicial statements from the mass of evidence on the grounds that they were secured from them by force and intimidation, and that the incriminating details therein were supplied by the police investigators. We are not convinced that the statements were involuntarily given, or that the details recited therein were concocted by the authorities. The statements were given in the presence of several people and subscribed and sworn to before the City Fiscal of Quezon City, to whom neither of the aforesaid appellants intimated the use of inordinate methods by the police. They are replete with details which could hardly be known to the police; and although it is suggested that the authorities could have secured such details from their various informers, no evidence at all was presented to establish the truth of such allegation. While in their statements Jose and Caal admitted having waited together with the two other appellants for Miss De la Riva at the ABS Studio, each of them attempted in the same statements to exculpate himself: appellant Jose stated that only Pineda and Aquino criminally abused the complainant; while appellant Caal would make it appear that the complainant willingly allowed him to have sexual intercourse with her. Had the statements been prepared by the authorities, they would hardly have contained matters which were apparently designed to exculpate the affiants. It is significant, too, that the said two appellants did not see it fit to inform any of their friends or relatives of the alleged use of force and intimidation by the police. Dr. Mariano Nario of the Quezon City Police Department, who examined appellant Caal after the latter made his statement, found no trace of injury on any part of the said appellant's body in spite of the claims that he was boxed on the stomach and that one of his arms was burned with a cigarette lighter. In the circumstances, and considering, further, that the police officers who took down their statements categorically denied on the witness stand that the two appellants were tortured, or that any detail in the statements was supplied by them or by anyone other than the affiants themselves, We see no reason to depart from the trial court's well-considered conclusion that the statements were voluntarily given. However, even disregarding the in-custody statements of Jose and Caal, We find that the mass of evidence for the prosecution on record will suffice to secure the conviction of the two.

The admissibility of his extrajudicial statements is likewise being questioned by Jose on the other ground that he was not assisted by counsel during the custodial interrogations. He cites the decisions of the Supreme Court of the United

States in Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and Miranda vs. Arizona (384 U.S. 436). The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1, par. 17 of which provides: "In all criminal prosecutions the accused shall . . . enjoy the right to be heard by himself and counsel . . ." While the said provision is identical to that in the Constitution of the United States, in this jurisdiction the term criminal prosecutions was interpreted by this Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar provision in the Philippine Bill of Rights (Section 5 of Act of Congress of July 1, 1902) to mean proceedings before the trial court from arraignment to rendition of the judgment. Implementing the said constitutional provision, We have provided in Section 1, Rule 115 of the Rules of Court that "In all criminal prosecutions the defendant shall be entitled . . . (b) to be present and defend in person and by attorney at every stage of the proceedings, that is, from the arraignment to the promulgation of the judgment." The only instances where an accused is entitled to counsel before arraignment, if he so requests, are during the second stage of the preliminary investigation (Rule 112, Section 11) and after the arrest (Rule 113, Section 18). The rule in the United States need not be unquestioningly adhered to in this jurisdiction, not only because it has no binding effect here, but also because in interpreting a provision of the Constitution the meaning attached thereto at the time of the adoption thereof should be considered. And even there the said rule is not yet quite settled, as can be deduced from the absence of unanimity in the voting by the members of the United States Supreme Court in all the three above-cited cases. 5.Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross miscarriage of justice. He contends that because the charge against him and his co-appellants is a capital offense and the amended complaint cited aggravating circumstances, which, if proved, would raise the penalty to death, it was the duty of the court to insist on his presence during all stages of the trial. The contention is untenable. While a plea of guilty is mitigating, at the same time it constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances, and it matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its attendant circumstances qualifying and/or aggravating the crime (People vs. Boyles, et al., L15308, May 29, 1964, citing People vs. Ama, 1-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961). Because of the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent upon the trial court to receive his evidence, much less to require his presence in court. It would be different had appellant Pineda requested the court to allure him to prove mitigating circumstances, for then it would be the better part of discretion on the part of the trial court to grant his request. (Cf. People, vs. Arconado, L-16175, February 28, 1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there this Court ordered a new trial because it found for a fact that the accused, who had pleaded guilty, "did not intend to admit that he committed the offense with the aggravating circumstances" mentioned in the information. We are not in a position to make a similar finding here. The transcript of the proceedings during the arraignment shows that Pineda's counsel, Atty. Lota, prefaced his client's plea of guilty with the statement that "I have advised him (Pineda) about the technicalities in plain simple language of the contents of aggravating circumstances and apprised him of the penalty he would get, and we have given said accused time to think. After a while I consulted him for three times and his decision was still the same." Three days after the arraignment, the same counsel stated in court that he had always been averse to Pineda's idea of pleading guilty, because "I know the circumstances called for the imposition of the maximum penalty considering the aggravating circumstances," but that he acceded to his client's wish only after the fiscal had stated that he would recommend to the court the imposition of life imprisonment on his client. To be sure, any such recommendation does not bind the Court. The situation here, therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra. 6.Two of the appellants Jose and Caal bewail the enormous publicity that attended the case from the start of investigation to the trial. In spite of the said publicity, however, it appears that the court a quo was able to give the appellants a fair hearing. For one thing, three of the seven (7) original accused were acquitted. For another thing, Jose himself admits in his brief that the Trial Judge "had not been influenced by adverse and unfair comments of the press, unmindful of the rights of the accused to a presumption of innocence and to fair trial."

We are convinced that the herein four appellants have conspired together to commit the crimes imputed to them in the amended information quoted at the beginning of this decision. There is no doubt at all that the forcible abduction of the complainant from in front of her house in Quezon City, was a necessary if not indispensable means which enabled them to commit the various and successive acts of rape upon her person. It bears noting, however, that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding crimes of the same nature can not legally be considered as still connected with the abduction in other words, they should be detached from, and considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter. What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty of reclusion perpetua to death, under paragraph 3, Article 335, as amended by Republic Act No. 4111 which took effect on June 20, 1964, and which provides as follows: "ART. 335.When and how rape committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: "1.By using force or intimidation; "2.When the woman is deprived of reason or otherwise unconscious; and "3.When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. "The crime of rape shall be punished by reclusion perpetua. "Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetuato death. "When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. "When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death. "When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death." As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is definitely the more serious; hence, pursuant to the provision of Art. 48 of the Revised Penal Code, the penalty prescribed shall be imposed in its maximum period. Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is hardly any necessity to consider the attendance of aggravating circumstances, for the same would not alter the nature of the penalty to be imposed. Nevertheless, to put matters in their proper perspective and for the purpose of determining the proper penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to make a definite finding in this connection to the effect that the commission of said crimes was attended with the following aggravating circumstances: (a) nighttime, appellants having purposely sought such circumstance to facilitate the commission of these crimes; (b) abuse of superior strength, the crime having been committed by the four appellants in conspiracy with one another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the effects of the crime more humiliating; and (d) use of a motor vehicle. With respect to appellants Jose, Aquino and Caal, none of these aggravating circumstances has been offset by any mitigating circumstance. Appellant Pineda should, however, be credited with the mitigating circumstance of voluntary plea of guilty, a factor which does not in the least affect the nature of the proper penalties to be imposed, for the reason that there would still be three aggravating circumstances remaining. As a result, appellants should likewise be made

to suffer the extreme, penalty of death in each of these three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.). In refusing to impose as many death penalties as there are offenses committed, the trial court applied by analogy Article 70 of the Revised Penal Code, which provides that "the maximum duration of all the penalties therein imposed upon the appellant shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon the appellant, which should not exceed forty years." The said court is of the opinion that since a man has only one life to pay for a wrong, the ends of justice would be served, and society and the victim would be vindicated just as well, if only one death penalty were imposed on each of the appellants.

We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into account in connection with the service of the sentence imposed, not in the imposition of the penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should be imposed because man has only one life, the trial court ignored the principle enunciated in the very case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of the trial court, found the accused guilty of two murders and one homicide and imposed upon him two death sentences for the murders and a prison term for the homicide. In not applying the said principle, the court a quo said that the case of Balaba is different from the present case, for while in the former case the accused was found to have committed three distinct offenses, here only one offense is charged, even if complex. As We have explained earlier herein, four crimes were committed, charged and proved. There is, therefore, no substantial difference between the two cases insofar as the basic philosophy involved is concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm the two death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L-19060, October 29, 1968, in which this Court imposed on each of the six accused three death penalties for three distinct and separate crimes of murder, We said that "since it is the settled rule that once conspiracy is established, the act of one conspirator is attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by law." In the said case (which was promulgated after the decision of the court a quo had been handed down) We had occasion to discuss at length the legality and practicality of imposing multiple death penalties, thus: "The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility. It is contended, undeniably enough, that a death convict, like all mortals, has only one life to forfeit. And because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple death penalties is impractical and futile because after the service of one capital penalty, the execution of the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously; and (4) it overlooks the practical merits of imposing multiple death penalties. "The imposition of a penalty and the service of a sentence are two distinct, though related, concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses charged and proved, whereas service of sentence is determined by the severity and character of the penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not concern itself with the possibility or practicality of the service of the sentence, since actual service is a contingency subject to varied factors like the successful escape of the convict, grant of executive clemency or natural death of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and number of the offenses charged and proved and the corresponding penalties prescribed by law. "Multiple death penalties are not impossible to serve because they will have to be executed simultaneously. A cursory reading of article 70 will show that there are only two moves of serving two or more (multiple) penalties: simultaneously or successively. The first rule is that two or more penalties shall be served simultaneously if the nature of the penalties will so permit. In

the case of multiple capital penalties, the nature of said penal sanctions does not only permit but actually necessitates simultaneous service. "The imposition of multiple death penalties, far from being a useless formality, has practical importance. The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity, which may not be accurately projected by the imposition of only one death sentence irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible character of the convict in its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple death penalties could effectively serve as a deterrent to an improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the proper penitentiary authorities would exercise judicious restraint in recommending clemency or leniency in his behalf. "Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the maximum forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum of only thirty years corresponding to a single life sentence." We are, therefore, of the opinion that in view of the existence of conspiracy among them and of our finding as regards the nature and number of the crimes committed, as well as of the presence of aggravating circumstances, four death penalties should be imposed in the premises. xxx xxx xxx Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation asking for reversal of that portion of the judgment of the court below ordering the confiscation of the car used by the appellants in abducting the complainant. The aforesaid car is a 1965 two-door Pontiac sedan with Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284, File No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto San Diego of the Quezon City Police Department. The car is registered in the name of Mrs. Dolores Gomez. On April 4, 1967, Mrs. Dolores Gomez, mother of appellant Jaime G. Jose, bought the car from the Malayan Motors Corporation and simultaneously executed a chattel mortgage thereon to secure payment of the purchase price of P13,200, which was stipulated to be payable in 24 monthly installments of P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly registered with the Land Transportation Commission and inscribed in the Chattel Mortgage Registry. The mortgage lien was annotated on the motor registration certificate. On April 17, 1967, for value received and with notice to Mrs. Gomez, the Malayan Motors Corporation assigned its credit against Mrs. Gomez, as well as the chattel mortgage, to the intervenor. The assignment was duly registered with the Land Transportation Commission and annotated on the registration certificate. Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on July 5, 1967, an action for replevin against her (Civil Case No. 69993, Court of First Instance of Manila) as a preliminary step to foreclosure of the chattel mortgage. On July 7, 1967, the court issued an order for the seizure of the car. The sheriff, however, could not enforce the writ of replevin because the car was not in Mrs. Gomez' possession, the same having been used by her son, appellant Jaime G. Jose, together with the other appellants in this case, in the abduction of Miss De la Riva, as a result of which the car was seized by the Quezon City police and placed in the custody of Major San Diego, who refused to surrender it to the sheriff on the ground that it would be used as evidence in the trial of the criminal case. During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor filed with the said court a petition for intervention. The said petition was not, however, acted upon. On October 2, 1967, the trial court rendered its judgment in the present case ordering the car's confiscation as an instrument of the crime. Although not notified of the said decision, the intervenor filed, on October 17, 1967, a motion for reconsideration of the order of confiscation; but the same was denied on October 31, 1967, on the ground that the trial court had lost jurisdiction over the case in view of the automatic elevation thereof to this Court. The intervenor then filed a petition for relief from judgment, but the same was also denied.

On February 5, 1968, judgment was rendered in the replevin case ordering Mrs. Gomez to deliver the car to the intervenor so that the chattel mortgage thereon could be foreclosed, or, in the alternative, to pay the intervenor the sum of P13,200 with interest thereon at 12% per annum from July 5, 1968, the premium bond, attorney's fees, and the costs of suit. The judgment became final and executory. Attempts to execute the judgment against the properties of Mrs. Gomez were unavailing; the writ of execution was returned by the sheriff unsatisfied. On July 26, 1968, the present petition for intervention was filed with this Court, which allowed the intervenor to file a brief. In his brief the Solicitor General contends, among others, that the court a quo having found that appellant Jose is the owner of the car, the order of confiscation is correct. Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in the absence of strong evidence to the contrary, must be considered as the lawful owner thereof; that the only basis of the court a quo in concluding that the said car belongs to appellant Jose were the latter's statements during the trial of the criminal case to that effect; that the said statements were not, however, intended to be, nor could constitute, a claim of ownership over the car adverse to his mother, but were made simply in answer to questions propounded in court for the sole purpose of establishing the identity of the defendant who furnished the car used by the appellants in the commission of the crime; that the chattel mortgage on the car and its assignment in favor of the intervenor were made several months before the date of the commission of the crimes charged, which circumstance forecloses the possibility of collusion to prevent the State from confiscating the car; that the final judgment in the replevin case can only be executed by delivering the possession of the car to the intervenor for foreclosure of the chattel mortgage; and that Article 45 of the Revised Penal Code bars the confiscation and forfeiture of an instrument or tool used in the commission of the crime if such "be the property of a third person not liable for the offense," it is the sense of this Court that the order of the court below for the confiscation of the car in question should be set, aside and that the said car should be ordered delivered to the intervenor for foreclosure as decreed in the judgment of the Court of First Instance of Manila in the replevin case, Civil Case No. 69993.

xxx xxx xxx Before the actual promulgation of this decision, this Court received a formal manifestation on the part of the Solicitor General to the effect that Rogelio Caal, one of the herein appellants, died in prison on December 28, 1970. As a result of this development, this case is hereby dismissed as to him alone, and only insofar as his criminal liability is concerned, with one-fourth (1/4) of the costs declared de oficio. WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of forcible abduction with rape, and each and every one of them is likewise convicted of three (3) other crimes of rape. As a consequence thereof, each of them is hereby sentenced to four (4) death penalties; all of them shall, jointly and severally, indemnify the complainant in the sum of P10,000.00 in each of the four crimes, or a total of P40,000; and each shall pay one-fourth (1/4) of the costs. Insofar as the car used in the commission of the crime is concerned, the order of the court a quo for its confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered to deliver its possession to intervenor Filipinas Investment & Finance Corporation in accordance with the judgment of the Court of First Instance of Manila in Civil Case No. 69993 thereof.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Villamor and Makasiar, JJ., concur. Teehankee, J., took no part. Barredo, J., did not take part.