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[ GR Nos. L-7472-7477, Jan 31, 1956 ]



98 Phil. 327

[ G.R. Nos. L-7472-7477, January 31, 1956 ]




After the last  (Pacific) war the Province  of  Cavite witnessed  a series of kidnappings where peaceful residents of  the province were  snatched and kept in custody  by organized  gangs,  for  purposes of ransom.  One of said kidnappings is involved in the present case.
On May 11, 1953, Bayani Dragon, an aviation student of the FEATI, and a resident of General Trias,  Cavite, while playing  pingpong near  his home at about 8 o'clock in the evening, saw a masked man approach him menacingly.  Sensing that the man not only because of his being masked  but  also because of his attitude, was after him, Bayani made a dash for his home but  the man ran after and finally caught him.  After that, they were joined  by five or  six men also  masked and  Bayani was by them conducted on foot eastward to a place unknown to him. That night he  was made to sleep in a hut all by himself but guarded by his masked captors.  For the next two or three days Bayani was taken by this  group to different places,  all isolated and  uninhabited,  until  they finally reached a hut  at  a place called Pasong Bayog within the jurisdiction  of Dasmariñas, Cavite,  and  there  he was delivered to  another group of men,  some of them masked. In  this  hut and by this latter group Bayani was held in custody for almost two months.

There is evidence to the effect that about the  same time that Bayani was  kidnapped,  one Dr.  Velasco was also snatched  in the Province  of  Cavite,  presumably  by the members of the same gang because Velasco was also taken to the same hut in Pasong Bayog. Since the  ransom of P10,000 demanded by the kidnappers from Velasco's family was paid, he  was released from  custody, leaving  Bayani in the hut with his guards.

About a year before the kidnapping of Bayani or rather on May 4, 1952, there was staged  a mass  jailbreak in the municipal jail  of Imus,  Cavite in which  about  twenty prisoners escaped. Among these  escapees  were Sergio Villanueva, Ruben Ordonez, Simplicio Rupiso, and Serafin Timbang.  Sergio was being detained under a charge of robbery while his companions were charged with kidnapping a  Chinaman.   It seems that  after escaping, Sergio Villanueva organized a gang for purposes  of kidnapping; Ruben was second in command and Serafin acted  as  Secretary-Treasurer  of the organization.   The gang operated mostly in the Province of Cavite. On May  26, 1953, a raid was conducted by a Constabulary patrol in the barrio of Salawag,  Dasmariiias,  Cavite.   Eupiso was captured with a  Thompson machinegun  which he was  carrying. From Rupiso the Constabulary obtained valuable information about the whereabouts and hiding places of the  kidnapping group of Villanueva,  Lt.  Berenguel, commanding officer of the Constabulary detachment at Malinta, Cavite, made a reconnaissance of one of the places indicated  and he was  able to pinpoint,the exact  location of the hut in Pasong Bayog where Bayani was being detained.

Early in the morning of July 4,  1953, while it was still dark, a Constabulary patrol of 21  men led by Lt. Reyea stealthily  surrounded and  approached this hut and  saw Serafin Timbang  cooking breakfast in  an  outhouse of the hut.  A carbine was  lying on the ground within his reach. Upon detecting the presence of the raiding party,  Serafin grabbed his carbine  but the soldiers jumped on him  and placed  him under control.   The inmates of  the hut  still sleeping  and rudely  awakened  from their slumber, were ordered to file  out quietly, which  they did.  They were six inside the hut, including Bayani.  As  soon as  Bayani recognized the raiders as Constabulary men, he immediately identified  himself as  Bayani Dragon, a kidnap victim  and he pointed to his  companions in the hut, including  Serafin as his guards.  Said  companions  were questioned on the spot by the raiders and they admitted that Bayani  was their kidnap-victim. , The hut was searched.  Four automatic  rifles were found inside which the inmates of the hut  admitted to belong to them.  In a leather bag were found a pair of field glasses, medicines, a rubber stamp, a pencil and a bunch of papers or documents.  The persons found in the hut besides Serafin Timbang were his nephew Marciano Timbang, Igmidio Camagong, Melecio Pakingan, Bienvenido  Mojica and Eicardo  Gonzales.  With  Bayani they were taken to  Malinta where they were questioned by Lt. Berenguel.  Because Malinta had no stockage where to keep the prisoners, they were later taken to Imus, Cavite, where they were further investigated.

The Constabulary investigator was Sgt. Magtangol Prim. Serafin Timbang and his five companions finally admitted that they formed part of the group of Sergio Villanueva and Ruben Ordonez  and that they had guarded  Bayani in the hut at Pasong Bayog to prevent his escape.   The five  automatic rifles captured in the raid were  laid or placed on a table and each prisoner was asked to identify the  gun  that belonged to  him.   With the exception of Marciano Timbang each of  the prisoners identified a  firearm as belonging to him.  The result of the investigation was embodied by  Sgt.  Prim  in  ten different affidavits (Exhibits J to S).  He found that Serafin Timbang had a wound  or injury between his legs, around the anus and because  Serafin complained of severe pain, through  Sgt. Prim's recommendation to his commanding officer, Serafin was taken to the Philippine General Hospital in  Manila, that is, after he had signed his affidavit.

On July 7, 1953, the remaining five prisoners were taken before  deputy clerk of court Bayani  del  Rosario.  Del Rosario testifying at the trial told the court that he questioned each  affiant, asking him  to listen  while he  (Del Rosario)  read the contents  of their  affidavits which are in Tagalog, and  to stop him and to  call his  attention to any inaccuracy or  error in the statement or narration of facts.  He also asked each  affiant whether there had been. any  irregularity or  anomaly committed  in  relation with the preparation of the affidavit and whether the affiants had  any complaint to make, and when  he was assured that everything was in order and regular, he administered the oath to each affiant who then subscribed or  signed the affidavit or affidavits.

On the  basis of the accusation by Bayani made at the hut  in Pasong Bayog immediately  after the  raid, and before the Constabulary officers  at  Malinta  and  Imus, that Serafln Timbang and  his  five companions had been guarding him for  almost two months and because of the admission of that charge  by them not only at" the hut after the  raid but also before  the Constabulary officers, particularly Sgt. Prim, as  shown by their affidavits, said six men were jointly accused of kidnapping, and with the exception  of Mareiano Timbang, were separately charged with illegal possession of firearms, Simplicio Rupiso whd as already stated, was captured on  May 26,  1953 in a separate raid and who supposedly admitted that he was a member of the  gang of  Villanueva and Ordonez, was included in the charge.

There was a joint trial of the case of kidnapping and of the, five separate cases of  illegal  possession of firearms, After the prosecution had rested its ease,  counsel  for Simplicio  Rupiso  asked for the dismissal of the case  of kidnapping against him on the  ground of insufficiency of evidence, and without objection on the part of the prosecution the trial court granted  the motion; and the  remaining six defendants presented their evidence.

Each one of the accused  claimed that far from being a kidnapper and a  guard of  Bayani at the hut  in Pasong Bayog, he was  a kidnap-victim himself.   Marciano Timbang told  the court that one day he went out to look for his uncle Serafin  in  order  to help him cut grass, but he was suddenly pounced upon by  unknown men and unceremoniously  taken to  the hut in question  where  he was detained unguarded with Bayani  Dragon.  Another defendant stated that his sister had disappeared, presumably kidnapped and  while  out looking for her, he  was also captured  by unknown men and taken to  the  same hut. Two  others  said  that they were  looking  for  {heir lost carabaos and while doing so they  were also apprehended and taken to the said hut.  Still others claimed that they went out to cut firewood and were similarly captured and taken to the hut against their  will.  All of them told the trial  court that  although there were no guards  in the hut or even around the place whom they could see, nevertheless they  dared not escape  for fear of  being  recaptured  or otherwise prevented from escaping by their kidnappers who might have been watching them from  their hiding place. The trial court presided by  Judge Juan 0. Reyes correctly gave scant consideration to these strange, not to say fantastic claims,  and found five  of  the  defendants guilty of illegal possession of firearms and  sentenced each to  an indeterminate sentence of from  five  to eight years imprisonment, with the  exception of Serafin Timbang who,  being an escapee and therefore not  entitled to the benefits of the indeterminate sentence law,  was given the maximum of eight years.  All  of the six defendants were also found guilty  of kidnapping and were  sentenced each to  life  imprisonment.  They have  all appealed  from said decision, and because of the penalty involved their appeal was directly taken to us.

Bayani although he testified for the  prosecution, did so in  a  half-hearted manner.  He told the court  on  direct examination that  he was apprehended by a group of six or  eight men while he was playing pingpong;  that  after hiking  for  several days, he was  finally delivered by his captors to another group of men at the hut  in Pasong Bayog and there detained for almost two months; but on cross examination he made statements more favorable to the defense  than for the prosecution.  For  instance,  he said that he did not recognize any of the men who snatched him  in  the evening of May  11,  1953, nor the group to "which he was delivered in the hut and that the defendants-appellants herein were not his guards but were companions in  the  hut, giving  the impression  that they were fellow kidnap-victims.   When pressed by  the court to  reconcile his testimony on  cross-examination with his spontaneous accusation  of herein  appellants  before the  raiders who rescued him, pointing to appellants as his guards, he reluctantly admitted that they really guarded him but not during the whole period of his captivity  but only for a few days, as  for  instance, Marciano Timbang guarded him for one week, Serafin Timbang for eight days,  Melecio Pakingan for another  eight days, Ricardo  Gonzales  for about one week and  Bienvenido Mojica for  only two  days.  This attitude and change of front of Bayani Dragon is indeed strange, but was  reasonably,  even satisfactorily explained by the trial  judge  in  a portion of  his  decision  which  we quote below:
"The  Court also observed that during the  trial even the kidnap victim himself Bayani Dragon, when presented  as  a witness by the Provincial Fiscal,  seemed to be afraid and reluctant to testify As a  matter of fact, after two questions had been propounded by the Fiscal, he told the court that he was feeling dizzy and requested to be  excused from testifying, but the Court did not excuse him  and finally lie was  able to testify  until the several  defense attorneys all finished their cross-examination of  him.  The Court  is therefore suspicious that Bayani Dragon must have been threatened before he appeared in Court, and that  explains  his answers to the questions of the defense counsels -which tended to favor all the accused.  Such statements,  however, are  found to be  in contradiction  to  his subscribed  statements  and  declarations  (Exhibit T)  taken  by  and subscribed before the Assistant Provincial Commander of the Philippine  Constabulary for the Province of Cavite, a few days after his rescue."
Counsel for appellants questions the regularity of  the investigation conducted by Sgt. Magtangol Prim and assails the  validity and  admissibility  of the  affidavits  prepared ."  by him on the basis  of the answers of said appellants in reply to his questions, on the ground  of use of force and torture. The trial court discounted the claim, of. the use of force and the infliction of physical injuries on the affiants, this after carefully examining the  persons  of the defendants and failing to  find any mark or  vestige of wounds and physical injuries said to have  been inflicted on them by Sgt. Prim.  And as to Serafin Timbang who, as already stated,  sustained a wound around  the  anus,  there is evidence to the effect that when questioned at the hospital where he had been taken, first he said that he fell upon a stump striking his anus against  it, thereby causing his physical injury.  Later,  he said that he was boxed by a soldier,, and according to one of his co-defendants, he saw Serafin boxed by a soldier in Malinta  not in Imus  where Sergeant Prim was and, where he questioned the defendants, including Serafin.   If Sgt. Prim really used force on Serafin and produced the  wound which caused his being taken to the hospital, Sgt. Prim would have tried to  hide this proof of his use of force and violence; but instead, it was he who recommended that Serafin be  taken  to the hospital for treatment, even if by doing so, he failed to have Serafin ratify and swear to his affidavit before the Deputy  Clerk  of  Court.  It was  also proven  that  the Provmcial Fiscal visited  Serafin at the hospital and Serafin made no complaint  whatsoever  to him on  the supposed ill-treatment and torture by  Sgt. Prim in order to  obtain his  affidavit.  As  regards the rest of  the  appellants, as already said, Deputy Clerk of Court Del Rosario assured the trial court that he read and  explained the contents of their affidavits and gave  them every opportunity to correct any error or  mistake in the facts stated therein  and to complain of any irregularity or  anomaly in relation with the preparation of said  affidavits, but  he was assured by all of them that  everything was correct and regular.   Each affiant signed his affidavit.  The regularity, smoothness and firmness of the  strokes in their  signatures seem to  show spontaneity and willingness on  the  part of the signers, instead of the fear, emotional disturbance and compulsion under which they supposedly affixed  their signatures.

There is one legal point raised by the Solicitor General. He says that while counsel for the appellants claims that the  affidavits  in question were obtained  irregularly and by the  use of force, violence and intimidation, there is no claim or insinuation that the contents of said affidavits are not  true  and  he contends that an affidavit or confession may be rejected only when the affiant is compelled against his will to state or admit something which is against the truth.  In other words, the admissibility  of that  kind of evidence  depends  not  on the  supposed illegal manner in which  it is obtained  but on  the  truth or falsity  of the facts or admission contained  therein.   We agree with the Solicitor General on this point.  In the case of People vs. De los  Santos, et al., 93  Phil.,  83, this Court said:
"A confession, to be repudiated, must not only be proved to have been obtained by force and violence, but  also  that  it is false or untrue, for  the law rejects the confession when, by force or violence or intimidation, the accused is compelled against his  will  to tell  a falsehood,  not  when  by  such force and  violence he is compelled to tell  the  truth.  This  is  in consonance  with  the  principle  that the admissibility of evidence is not affected by the illegality of  the means with which it was secured,  (Moncado  vs.  People's Court, et al., 80 Phil. 1)"
The  trial court  which not only received the  evidence but  also questioned the witnesses on  important points and who 'had  the opportunity to observe their behavior on the witness stand, was convinced  of  the guilt of appellants. We  reproduce pertinent portions of its decision.
"There is no quarrel  between  the prosecution and the defense over the fact that the herein six accused were surprised in the  hut at Pasong Bayog, Dasmarinas, in the early morning of July 4, 1953, together with Bayani  Dragon, who immediately identified himself to the P. C. authorities.  They were then arrested and later on Bayani Dragon  was released, while the  six accused were first brought to Malinta barracks and subsequently, in  the  afternoon, to the  P.  C. Headquarters at Imus, Cavite.  The accused themselves,  in their testimonies,  admitted such  facts  and  even  explained the circumstances  under which they were surprised  and arrested oh the date mentioned.   They, however, claim  that  if they were  in the hut at Pasong  Bayog during the period and on  the days when they admitted having lived in that hut, it was due to the order of their captors not  to leave the place, otherwise they would be liquidated.  Should the  testimonies of these accused as well as  of  the  few  witnesses presented by them, who are all their relatives,  either as  father, mother or brother, be given full credence, it would appear that the six; accused, together with  Bayani Dragon,  would all be considered as kidnap victims,  without  any  kidnappers.

"The accused wanted  the Court to believe that they were  either captured  or compelled by  force  and intimidation  to go  with the supposed  armed men who brought them to that hut,  and that they stayed there until their capture by the Philippine Constabulary men and  officers  on July 4, 1953.   This assertion, however, is diametrically opposed to their admissions  made before the  P. C. officers and  investigators.  To their affidavits, Exhibits J, K, L, M, N, and O, as well as in their  statements, Exhibits P,  Q,  R, and S, they categorically admitted  that they mere members of the bandit  gang led by Sergio Villanueva  and  that  all of them,  with the  single  exception  of Marciano  Timbang, were provided with  firearms.  *   *   *

"The prosecution, through the testimonies  of the officers  and men who took part in the raid  and in the subsequent arrest  of these accused,  affirmed before the Court  that those firearms were  taken within the hut where the accused were found.  Sergeant Magtangol Prim and Deputy Cleric of Court Bayani del Rosario also testified that the affidavits in which  the  accused admitted their participation or their connection with the gang led by Sergio  Villanueva, as well as their ownership of the five firearms, were given voluntarily and the  said  statements had been sworn to and signed before Bayani del Rosario, an officer of the Court, without any compulsion, after the contents of the  said documents were read to the accused  individually.  It is significant to note that Scrafm Timbang, who  seems to bex the principal accused in  this case the two leaders  of the gang, Sergio Villanueva  and Ruben Ordonez, not having been as yet apprehended up to this  time when asked why he did  not  escape from that hut during all the time of his alleged  confinement thereat on orders of the armed men, answered that he was afraid to escape because the premises were  guarded  by  armed men day and night. This accused, however, admitted that some time on May  4,  1952, he escaped from jail  in  connection  with another charge of kidnapping, together with several ether  detained prisoners on that occasion, and the prosecution proved that among  those who escaped with Serafin Timbang  were  Ruben Ordonez and Sergio Villanueva  (Exhibit JJ).

*          *             *            *              *              *

"Furthermore, all the six herein accused put the blame in connection with their tie-up  with the bandit gang of Sergio Villanueva and Ruben Ordonez  to the supposed armed men who  allegedly captured them and brought them to the hut at Pasong Bayog where they are ordered not to leave, otherwise it would cost them their lives.  Of course the said accused knew that such armed men whom they were mentioning  as their  captors could not  very well contradict them, because  even  their  names  were  not disclosed. and therefore the authorities could not take hold of said men to testify  in this case.

In general, the testimonies of all the accused seem to have followed the' same pattern of reasoning, denying having  voluntarily  signed their affidavits or admissions, that they were brought by armed men to that hut in Pasong Bayog, that they never handled or were never provided with any arm,  and that they were  all  compelled to make their statements  and  admissions of the said accused" and their relatives, who were  presented to corroborate part of their testimonies, could not be given any credence.  In addition, the fact that all the accused  stayed  in that  hut  for  days  and weeks or,  maybe, even months, and did not care to leave the place and go home or returned to their  respective  families,  show that  the sis accused are really members  of  the bandit  gang led by their two   co-accused,  Sergio Villanueva and  Ruben Ordonez.  The Court could not  believe their story  that they  were allegedly guarded clay and night by  armed men  whom  they did  not even  care  to  identify. On the  contrary, it has  trcen  proved by the prosecution, and this Court  is convinced to a moral  certainty that the  six accused  were  there  in  that hut in Pasong Bayog during all the time that they  stayed there with Bayani Dragon as the custodian of the said kidnap victim, awaiting the orders from their leaders as to what was to  be dons with their youthful victim,  Scrafin  Timbang admitted in his statements (Exhibit N)  that he and his companions  were expecting, some  P5,000 ransom from tho parents of  Bayani Dragon,  but  because,  probably, of theii'  unexpected arrest on July 4, 1953, they  did not succeed in obtaining any amount from the victim's parents. "The  tie-up of these six accused with the organization of  Sergio Villanueva having been  conclusively  shown not only in their own statements and   admission,  but also  from the other  evidence  on record,  they  could not now escape responsibility  for the  crime of kidnapping with  which they  are  charged.   The firearms that were also  found in that  hut  having been proved as  firearms in  their possession, or  at  least under their custody as members of that gang, the five accused  for the illegal possession of said  firearms shall also suffer the penalty provided by  law,"
After a  careful review of the  evidence we are convinced that  the appellants  herein although  they  may not have been the persons who actually  snatched  Bayani  Dragon on the night of May 11, 1953, still, everything points to the fact of their being part or members  of the group to which he was delivered at the hut at  Pasong Bayog and which group guarded him during the whole period of his detention there.  They  were  evidently members  of the organization, of Sergio  Villanueva and Ruben Ordonez, engaged in kidnapping and were in conspiracy  with said two gang leaders.  The story of appellants that they were also  kidnap-victims in that hut is highly incredible, too fantastic to be given any serious consideration.  According to the evidence and their own admissions,  there  were no guards in or around the hut to prevent their escape. They were adequately provided with food; and there were five automatic rifles  with ammunitions which they  could have used to force their  way out of  the hut and  shoot down any person that may possibly try to  prevent their escape.  And to show that there were no  such, guards around the  hut or in its  vicinity, two days before the actual raid Lt. Berenguel riding in  a jeep and later getting down from the  same, was  able to approach the hut within a relatively short distance without seeing or encountering any guard; and during the actual raid on July 4, 1953, the patrol consisting of 21 men was able to  surround, approach and  raid the hut without meeting or seeing any guard. All that the raiders saw  when  they approached the hut, was  Serafin  Timbang. peacefully  cooking breakfast and with a carbine within easy reach.  When approached by the raiders,  instead of welcoming them as his rescuers he grabbed his carbine  presumably to fight them  off.   And when the raiders made themselves known to the inmates, including Serafin Timbang, it was only  Bayani  Dragon who identified himself as the  kidnap victim and he  right then and there pointed to the  herein appellants as his guards who  had been keeping him in  custody for almost two  months  against  his will,  and  said appellants, instead of also claiming that they were kidnap-victims, admitted that they were there to guard Bayani Dragon and prevent his  escape.  There is every reason to believe that the hut in Pasong, Bayog was used for the detention  not only  of Bayani but  also of all persons whom the gang to which appellants belonged  could kidnap such as Dr. Velasco already referred to.

In his brief the Solicitor General recommends the imposition of the death penalty for the  crime of kidnapping because of the presence  of the aggravating circumstance that the offense was committed  with  the  aid  of  armed men.  Considering the gravity of the offense and the fact that the Legislature has increased the  penalty for the crime of kidnapping because of its serious surge and recrudescence, and bearing in mind its threatening proportions in the Province of  Cavite,  we were at  first inclined  to follow the recommendation  of  Government counsel, were it only to serve  as an effective deterrent on the criminal elements of the community and help in the drive to protect peaceful and law-abiding citizens from this grave threat to their liberty and their lives.  But  on further reflection and deliberation, the necessary votes to impose the extreme penalty is found wanting.  There  is no  satisfactory evidence that the group that snatched and took' into custody Bayani  on the night of  May 11, 1953,  was  armed. Of course there is the other  aggravating  circumstance  of night time, but this  is a  circumstance which may well  be included in the material execution of the kidnapping or in the means employed to accomplish it.  It should be borne in mind that defendants-appellants though forming  part of the conspiracy  of kidnapping,  were not the ones who actually kidnapped Bayani; and, under Article 62,  paragraph 4 of  the  Revised  Penal  Code, they are not bound i or affected by the  aggravating circumstance of night time unless they knew that it would be availed of in accomplishing the offense,  and there is no proof of said knowledge. Again, although there was the use of armed strength  or show of the same in  guarding Bayani in the hut at Pasong Bayog,  some of us are inclined to think that some use of arms or show  of  armed strength is necessary to guard a kidnap victim to prevent or discourage escape and so in a sense it may be justly regarded as included in or absorbed by the offense  itself.  Anyway, lacking  sufficient votes to impose the death  penalty, we have to  affirm as we do the sentence of life imprisonment imposed by the lower court for the  crime of kidnapping, at the same  time expressing our belief that appellants are not deserving of any executive  clemency which may in anyway  shorten the normal period of their incarceration.  We find the penalty imposed in the cases  of illegal possession of firearms to be in accordance with  law, and so also affirm that part  of the decision.  The  five  guns  involved  in them  are declared confiscated in favor of the Government.  With these modifications, the appealed decision is affirmed, with costs.

ParĂ¡s, C.  J., Padilla,  Reyes, A.,  Bautista Angelo,  Labrador, Concepcion, Reyes,  J.  B. L.,  and Endencia, JJ., concur.