G.R. No. 113685 June 19, 1997
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
THEODORE BERNAL, JOHN DOE and PETER DOE, accused-appellants.
ROMERO, J.:
Accused-appellant
Theodore Bernal, together with two other persons whose identities and
whereabouts are still unknown, were charged with the crime of kidnapping
in Criminal Case No. 26658-92 of the Regional Trial Court of Davao
City, Branch 10, under an information 1 dated July 13, 1992, which reads as follows:
That
on or about August 5, 1991, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned
accused, armed with hand guns, conspiring, confederating and cooperating
together and helping one another, and by means of force, violence,
intimidation and threat, wilfully, unlawfully, and feloniously grabbed
and kidnapped one Bienvenido Openda, Jr., while the latter was drinking
liquor with his friends as Bolton Isla, this City and was brought,
handcuffed and carried away using the PU then fled together with
Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda,
Jr. of his liberty against his will.
CONTRARY TO LAW.
A
plea of not guilty having been entered by Bernal during his
arraignment, trial ensued. The prosecution presented four witnesses. 2 On the other hand, Theodore Bernal testified for his defense.
The materials facts and events as found by the court a quo are:
It appears that on August 5, 1991, around 11:30 in
the morning, while Roberto Racasa and Openda, Jr. were engaged in a
drinking spree, they invited Bernal, who was passing by, to join them.
After a few
minutes, Bernal decided to leave both men, apparently because he was
going to fetch his child. Thereafter, two men arrived, approached
Openda, Jr., and asked the latter if he was "Payat." 3
When he said yes, one of them suddenly pulled out a handgun while the
other handcuffed him and told him "not to run because they were
policemen" and because he had an "atraso" or a score to settle with
them. They then hastily took him away. Racasa immediately went to the
house of Openda, Jr. and informed the latter's mother of the abduction.
The theory of the prosecution, as culled from the
testimony of a certain Salito Enriquez, tends to establish that Openda,
Jr. had an illicit affair with Bernal's wife Naty and this was the
motive behind the former's kidnapping. Until now, Openda, Jr. is still
missing.
On the
other hand, the defense asserts that Openda Jr. was a drug-pusher
arrested by the police on August 5, 1991, and hence, was never
kidnapped. 4
On December 10, 1993, the court a quo rendered judgment 5
finding Bernal "guilty beyond reasonable doubt of the crime of
kidnapping for the abduction and disappearance of Bienvenido Openda Jr.
under Article 267 of the Revised Penal Code and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental anguish and moral suffering." 6
Bernal
assails the lower court for giving weight and credence to the
prosecution witnesses' allegedly illusory testimonies and for convicting
him when his guilt was not proved beyond reasonable doubt.
We find no compelling reason to overturn the decision of the lower court.
The Court notes that up to this day, neither the
victim nor his body has been found. This, however, does not preclude the
Court from ruling on the merits of the case. In Kidnapping, what is
important is to determine and prove the fact of seizure, and the
subsequent disappearance of the victim will not exonerate an accused
from prosecution therefor. Otherwise, kidnappers can easily avoid
punishment by the simple expedient of disposing of their victim's
bodies.
Article 267 of the Revised Penal Code provides thus:
Art. 267. — Kidnapping and serious illegal detention. —
Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his liberty, shall suffer
the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been
inflicted upon the person kidnapped or detained, or if threats to kill
him shall have been made.
4. If the person kidnapped or detained shall be a minor, female or a public officer.
The penalty shall be death where the kidnapping or
detention was committed for the purpose of extorting ransom from the
victim or any other person, even if none of the circumstances
above-mentioned were present in the commission of the offense.
For
the charge of kidnapping to prosper, the deprivation of the victim's
liberty, which is the essential element of the offense, must be duly
proved. In the case at bar, Bernal indisputably acted in conspiracy with
the two other unknown individuals "as shown by their concerted acts
evidentiary of a unity of thought and community of purpose." 7 Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only. 8 The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr.
The prosecution has profferred sufficient evidence to
show that, indeed, Bernal, together with his two companions, abducted
Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood
friend and neighbor of the victim, testified that he saw Bernal at the
billiard hall at about 11:00 a.m. with his two companions and overheard
him dispatching one of them to "Tarsing's Store" to check if a certain
person was still there. This person later turned out to be Openda, Jr.
He added that after the latter's presence was confirmed, the three men
left the billiard hall. Minutes later, Openda, Jr., already handcuffed,
passed by the billiard hall with Bernal's companions.
Equally important is the testimony of Roberto Racasa,
a resident of Bucana, Davao City who knew both Bernal and the victim,
the former being his neighbor and compadre. He narrated that he
and the victim were drinking at "Tarsing's Store" on that fateful day
when Bernal passed by and had a drink with them. After a few minutes,
Bernal decided to leave, after which, two men came to the store and
asked for "Payat." When Openda, Jr. confirmed that he was indeed
"Payat," hew was handcuffed and taken away by the unidentified men.
Likewise, a
certain Salito Enriquez, a tailor and a friend of Openda, Jr.,
testified that sometime in January 1991, Openda, Jr. confided to him
that he and Bernal's wife Naty were having an affair. One time, Naty
even gave Openda, Jr. money which they used to pay for a motel room. He
advised Naty "not to do it again because she (was) a married woman. 9 Undoubtedly, his wife's infidelity was ample reason for Bernal to contemplate revenge.
Motive is
generally irrelevant, unless it is utilized in establishing the identity
of the perpetrator. Coupled with enough circumstantial evidence of
facts from which it may be reasonably inferred that the accused was the
malefactor, motive may be sufficient to support a conviction. 10
Openda, Jr.'s revelation to Enriquez regarding his illicit relationship
with Bernal's wife is admissible in evidence, pursuant to Section 38,
Rule 130 of the Revised Rules on Evidence, viz.:
Sec.
38. Declaration against interest. — The declaration made by a person
deceased, or unable to testify, against the interest of the declarant,
if the fact asserted in the declaration was at the time it was made so
far contrary to declarant's own interest, that a reasonable man in his
position would not have made the declaration unless he believed it to be
true, may be received in evidence against himself or his
successors-in-interest and against third persons.
With
the deletion of the phrase "pecuniary or moral interest" from the
present provision, it is safe to assume that "declaration against
interest" has been expanded to include all kinds of interest, that is,
pecuniary, proprietary, moral or even penal. 11
A
statement may be admissible when it complies with the following
requisites, to wit: "(1) that the declarant is dead or unable to
testify; (2) that it relates to a fact against the interest of the
declarant; (3) that at the time he made said declaration the declarant
was aware that the same was contrary to his aforesaid interest; and (4)
that the declarant had no motive to falsify and believed such
declaration to be true." 12
Openda,
Jr., having been missing since his abduction, cannot be called upon to
testify. His confession to Enriquez, definitely a declaration against
his own interest, since his affair with Naty Bernal was a crime, is
admissible in evidence 13 because no sane person will be presumed to tell a falsehood to his own detriment. 14
In his
brief, Bernal highlights supposed inconsistencies in Sagarino's
testimony. He alleges that the latter could not have seen the actual
handcuffing because "Tarsing's Store" could not be seen from the
billiard hall. Sagarino's testimony shows that after Bernal and two
others left the billiard hall, the latter came back with Openda, Jr.,
already handcuffed.
Q The three of them together?
A Yes, sir.
Q And what about you, where did you stay?
A I just stayed in the billiard hall.
Q While you stay (sic) in the billiard hall, after a while, what did you see next?
A The two came back.
Q Who were these two whom you said who (sic) came back?
A The companions of Bernal.
Q And what did these two men do?
A They apprehended Jun-jun Openda. 15
From
this proceeding, Bernal wrongly inferred that Sagarino actually saw
Openda, Jr. arrested. The lower court correctly rejected this argument
by holding that:
But
Sagarino has not said that he saw the actual handcuffing of Openda, Jr.
at the Tarsing or Tarcing store. On the contrary, he says that he had
not known who the person was that Bernal referred to when he requested
one of this two companions to go see if that person was still there at
the store, and that he came to know that he was Openda, Jr. only after
he saw Openda, Jr. pass by the billiard hall already handcuffed, with
the two unidentified companions of Bernal with him, on their way out to
the main road. 16
If one
had a direct view of "Tarsing's Store" from the billiard hall, Bernal
would not have requested his companion to check if Openda, Jr. were
still there drinking with Racasa. Another discrepancy pointed out by
Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on
cross-examination, stated:
Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct?
A Yes, sir, because I was still in the store. 17
On the other hand, Sagarino averred that:
Q When Theodore Bernal left the place, how long (sic) were you able to see him again?
A Quite a time, sir, because when they left, his two
companions came back and proceeded to Tarcing Store and arrested Jun-jun
Openda. When these two men brought out Jun-jun Openda, fifteen minutes
later, Bernal came.
Q Do you know where this Bernal from? (sic)
A He was coming from outside.
Q He has with him his son?
A He was with nobody, sir.
Q Are you sure of that?
A Yes, sir.
Q He was alone?
A Yes, sir. 18
The
testimonies of Racasa and Sagarino are not absolutely inconsistent with
each other as to be irreconcilable. Considering the proximity of the
store from the billiard hall, there is a possibility that when Racasa
saw Bernal with his son at the store, the latter could have already
brought home his son before proceeding alone to the billiard hall where
he was seem by Segarino. 19
Bernal
would like the Court to dismiss Sagarino's testimony by imputing revenge
as his motive for testifying. He alleges that on July 29, 1991, or six
days before the alleged kidnapping, five policemen arrived at Kasilak,
Bucana on board a patrol car asking for Openda, Jr., Sagarino, Joseph
Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were
residents of the place and staying at the billiard hall and mahjong
house. The policemen departed and went to the places he mentioned.
Q Minutes later do you know what happened?
A They came back.
Q What did you do after they came back?
A I asked these police officers if they found these (sic) persons they were looking (for) ?
Q What was their answer?
A They answered in the negative.
Q Since the answer is in the negative, what did you do ?
A I asked the police officers why they were looking for these persons.(?)
Q What was the answer of the policemen?
A The police officer said that those people were wanted by them because accordingly (sic) they were marijuana pushers. 20
Bernal's
position is that no abduction or kidnapping ever took place but that an
arrest was made by pursuing policemen. This contention is quite
improbable, if not highly preposterous.
The trial court correctly appreciated the testimony
of Sagarino, it being free from any ill-motive against Bernal. If the
latter's allegations were true, then Sagarino should have been arrested
by the police at the time he gave his testimony in court. No such arrest
was, however, made.
The court a quo
committed no error in finding the testimonies of Enriquez, Racasa and
Sagarino sufficient to convict Bernal. The court said that Sagarino's
forthright answers to the questions of the prosecutor and defense
counsel clearly establish the participation of Bernal in the abduction
or kidnapping or Openda, Jr. Evidence, to be believed, must not only
proceed from the mouth of a credible witness, but must be credible in
itself. 21
This Court once again finds occasion to reiterate the established rule
that the findings of fact of a trial court carry great weight and are
entitled to respect on appeal, absent any strong and cogent reason to
the contrary, since it is in a better position to decided the question
of credibility of witnesses. 22
We note
that after a lapse of a considerable length of time, the victim has yet
to resurface. Considering the circumstances, it is safe to assume that
Openda, Jr. is already dead.
Finally,
the Solicitor General, pursuant to the Indeterminate Sentence Law,
recommended to this Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua,
as maximum. The maximum penalty must be determined in accordance with
rules and provision of the Revised Penal Code. With respect to the
minimum penalty, however, "it is left entirely within the discretion of
the court to fix it anywhere within the range of the penalty next lower
without reference to the periods into which it may be subdivided." 23 Consistent with this ruling, this Court imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua, as maximum.
WHEREFORE, in view of the foregoing, the instant
appeal is DISMISSED and the appealed decision dated November 18, 1993,
is AFFIRMED in toto.
Costs against accused-appellant Theodore Bernal.
SO ORDERED.
Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.Footnotes
2 Namely, Salito Enriquez, a tailor and resident of Kasilac, Bucana, Davao City; Roberto Racasa, a mason and resident of Kasilac, Bucana, Davao City; Adonis Sagarino, a student and resident of Boston Isla; and Teresita Openda, the mother of Bienvenido Openda Jr.
3 TSN, May 10, 1993, p. 9.
4 Rollo, p. 9.
5 Penned by Judge Augusto V. Breva.
6 Rollo, p. 24.
7 People v. Puno, 219 SCRA 85 (1993).
8 People v. Minanday, 242 SCRA 620 (1995).
9 TSN, May 10, 1993, p. 5.
10 People v. Evangelista, 256 SCRA 611 (1996).
11 Francisco on Evidence, 1993 edition, p. 275.
12 Regalado, Remedial Law Compendium, 7th Revised Ed., p. 609.
13 Rollo, p. 11.
14 People v. Toledo and Holgado, 51 Phil. 825.
15 TSN, July 28, 1993, pp. 7-8.
16 TSN, October 13, 1993, pp. 3-5.
17 TSN, May 10, 1993, p. 13.
18 TSN, July 28, 1993, pp. 21-22.
19 Rollo, p. 90.
20 TSN, October 13, 1993, p. 4.
21 People v. Ulpindo, 256 SCRA 201 (1996).
22 People v. Catoltol. Sr., G.R. No. 122359, November 28, 1996; People v. Belisnomo, G.R. No. 118990, November 28, 1996; People v. Vallena, 244 SCRA 685 (1995).
23 People v. Ducosin, 59 Phil. 109.
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