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[ GR No. 7150, Oct 16, 1912 ]



23 Phil. 279

[ G. R. No. 7150, October 16, 1912 ]




The complaint is as follows: 

"That the undersigned charges Jacinto Borromeo, Raymundo Ramos, Marcelino Polintan, Jose Buenaventura, and Generoso Polintan  with the crime of rapto, committed as follows: 

"That on or about the tenth day of September, 1910, in the  city of Manila,  Philippine Islands,  the said  Jacinto Borromeo, Raymundo  Ramos,  Marcelino  Polintan, Jose Buenaventura, and  Generoso Polintan, conspiring together, voluntarily, illegally, and  criminally, by means of force, violence, and intimidation, and with unchaste designs, abducted one Severina Gamboa against her will. 

"That in the  commission of this crime the aggravating circumstance of nocturnidad concurred."

Jacinto Borromeo  was  sentenced to twenty  years of reclusion temporal,  to endow the offended party, Severina Gamboa, in the sum of P1,000, and to recognize the offspring, if there should be any.  Generoso Polintan was sentenced to twenty years, and  Raymundo  Ramos  and Jose Buenaventura each  to seventeen years four months and one day  of  reclusion temporal These  defendants were also sentenced to the corresponding accessory penalties and to the payment of the  costs.  All appealed.  Marcelino Polintan was  acquitted.   Borromeo, Ramos,  and Buenaventura  were tried before the Honorable Charles S. Lobingier, and Generoso Polintan before the Honorable Herbert D. Gale. As the facts in both appeals are the same, they will be considered together.

In the month of September, 1910, Severina Gamboa, an unmarried girl, 14 years of age, was living with her parents at No.  19 Calle Marina, Pasay, and was  employed as a dancing girl in  a dance hall at Pasig,  where she was in the habit of going each night in  company with her mother. Jacinto Borromeo met this young girl in the dance hall and became enamored with her personal beauty and  charms. About 10 o'clock on the night of September 10,  he called together Raymundo Ramos,  Jose Buenaventura, and Generoso and Marcelino Polintan, and they  rented a four-passenger automobile and twp calesas in which they went from Manila  to Pasig on that night.  Borromeo, Buenaventura, and  Generoso Polintan occupied the automobile and Ramos and Marcelino Polintan each occupied a ealesa.   Upon arriving in Pasig they went to the dance hall where they found Severina Gamboa and her mother.  They waited there until the hall was closed  at about 12  o'clock that night.  When Severina and her mother came out of the dance hall Borromeo and his companions invited them to return to Manila in the  automobile.   Both the mother and the daughter declined to accept this invitation and proceeded to the station in Pasig for the purpose of coming: to Manila in a street car.   Borromeo and his companions then returned to Manila. On the  return trip one of the calesas lost a  tire  and was put out of commission.  The .other ealesa and the automobile came on to Calle Bagumbayan  and there waited for the arrival  of the Pasig street car.  When this cat arrived it was  about  1 o'clock and the cars had stopped running to Pasay.  When the two women arrived they not being able to proceed to their home in a street car,  called  calesa which was passing  back and forth at that point and informed  the driver, one Tomas de Jesus, that they desired to hire his vehicle for the purpose of taking them to their home in Pasay,  they believing that the ealesa driven by De Jesus was a street or public  vehicle.  This calesa, as well as the one which  was put out of commission, was hired from a livery  stable by  Borromeo  and his companions. After the two women had embarked in the calesa  they proceeded on their way to Pasay.  After going a short distance they noticed an automobile in front  of  them but they paid no attention to it until their cochero refused  to continue on in the direction indicated by them".  The cochero insisted on following the automobile, he being  under instructions to follow the automobile.   The automobile and the calesa proceeded in this manner  until they arrived  at a lonely spot on Calle Vito Cruz, near a swamp and bridge in that vicinity.  At this  point the automobile had  stopped and  was  awaiting the arrival  of the calesa.  When the latter arrived to within a very short distance of the automobile, the  cochero  stopped  it and  the four  appellants alighted from the automobile  and  coming up  to the ealesq seized the two women.  Jacinto Borromeo, Generoso Polintan, and  one other seized  the girl, and took her from the calesa and placed her in  the automobile.   The other appellant seized the mother  and  prevented her from going to the rescue of her daughter.   In the ensuing struggle, the mother's clothes were torn and she was finally thrown into the ditch  or swamp adjacent to the road.  The four appellants,  with the girl, then  left the spot in the automobile. As the girl was being carried away from her mother in this manner, both she and  her mother began screaming  and crying for help.  The mother, after getting out of the ditch, started to pursue the automobile  on foot,  but  not being able  to overtake it, was compelled  to  abandon the pursuit. The screams of the two women as they were being separated were heard by one Ellis who was sleeping on the veranda of his house  near that place.   After the  automobile had gone a  short distance, it passed the witness Algard, who saw the girl struggling  and heard her  suppressed cries.  Borromeo was at that moment attempting to prevent her from screaming by placing his hands over her mouth.  This witness also saw the mother pursuing the machine.  The four appellants took the girl to the house of the appellant Ramos in Calle Balic-balic, where she remained until the afternoon of the eleventh.   The mother proceeded on foot to her home in  Pasay, changed her clothes, and accompanied by her husband and a neighbor  immediately returned to Manila to search for her daughter and the appellants.  They went to  Calle Azcarraga because the mother remembered having heard some of the appellants say  that they were living on that street.  Very early that morning, the mother and  her  companions encountered on that street Marcelind Polintan, Jose Buenaventura, and Generoso Polintan  in, company with two other  men.   They  seized  and  held Buenaventura and Marcelino Polintan, called a police officer, and  had  them arrested.  Generoso Polintan and the other two men made their escape.  Buenaventura and Marcelino Polintan  were conducted to the Meisic police station and after the police officers had heard the account of the abduction of the girl Severina, they immediately took steps to find her, and finally did' succeed in locating her in the house of Raymundo Ramos in company with Jacinto Borromeo and Raymundo Ramos.  Early on the morning of September 11, Generoso Polintan returned  to the house of Ramos in Balic-balic and advised Borromeo and Ramos of the capture of his companions and that he was going to make his escape.  Generoso did in fact make his escape and was not captured until some six months later, when he was finally arrested in the Province of Zambales and brought back to Manila.  On being advised by Generoso Polintan that Buenaventura and Marcelino Polintan had been arrested, Borromeo, with the  assistance of Ramos, attempted to marry Severina, and for this purpose they called to the house of  Ramos two Protestant ministers, Ricardo Luzada and Nicolas Zamora, and Santiago Castalian [Gatchalian], a notary public.  But the  marriage did not  actually take place.  The foregoing facts are not only established by the direct and positive testimony of credible witnesses, but they are practically admitted by the appellants.  Severina, the offended  party, testified that on her arrival at the house of Ramos about 2 o'clock a. m. on that night, she was placed in a room with Borromeo where they remained  together until1 after daylight; and that during this time Borromeo had carnal relations with her three times.  Two members of the Manila police force further testified that the defendant Borromeo had admitted in their presence that he  had had sexual intercourse with the girl  during that night.

The  appellants  in  this  instance  insist  (1) that the taking  of the girl to the house of Ramos on that night was simply carrying out a prearranged agreement  between the offended party and Borromeo;  (2) that there  were no dishonest designs for the reason that it  was the intention of Borromeo and Severinav to marry; and (3) that there were no carnal relations between Borromeo and the  offended party in the house of Ramos.

Article 445 of the Penal Code reads: 

"The abduction of a woman  against her will and with lewd  designs shall be punished by reclusion temporal."

The essential elements in this crime are two;  namely, (1) that the abduction must have been against the will of the woman; and (2) that the abduction must have been for lewd  or unchaste designs.   If either is lacking, a conviction under the above-quoted article can not stand.  One is as essential as the other.  It takes both to constitute the crime. If unchaste designs are lacking, the taking of the woman against her will might constitute some other crime, but never a violation of this article.

That  the appellants took the offended  girl to the house of  Ramos  against  her  will and against the  will  of  her mother  by  means  of actual  force,  there  cannot  be  the slightest doubt.  The young girl was forcibly separated from  her mother,  her mother thrown  into the ditch or swamp,  and she was taken away in the  automobile.  She attempted to continue her screaming and cries for help, but was prevented from doing so by Borromeo.   These facts exclude  the pretense of the appellants that the girl was taken for the purpose of marrying Borromeo.  Had  the girl agreed to go with the appellants and marry Borromeo,  her conduct would have been quite different   And again, Borromeo had said nothing, either to the mother or to her daughter, about marriage.  The appellants had no  other object than that of unchaste designs in taking the girl, and  these  unchaste designs were carried out.  Borromeo had  illicit  relations with the girl in  the house of  Ramos. He admitted this fact to two police officers.  All that was done and said on the 11th with reference to marrying the girl  was an afterthought.  This feeble and pretended attempt to marry the girl was made after Borromeo and Ramos had been notified of the capture of their companions and for the sole purpose of escaping criminal responsibility. Borromeo never intended to carry out this feeble attempt of marrying the girl.  In the commission of this crime there  was present the aggravating circumstance of nocturnity.  It is clear that the appellants selected the nighttime for the purpose of committing this crime.   They knew that  they could not accomplish their designs, if at all, in the daytime, not  by any means so easily.  There  were present no extenuating circumstances.

Finally, counsel for the accused pleads that  the. sentence imposed by the lower court is cruel and unusual and bases his assertion upon a comparison of the crime of which these appellants  have been convicted  with the crime of  illegal detention when committed under pretense of the exercise of public  authority, when serious physical injuries are inflicted upon the person detained, or threats made against his life (art. 482, Penal Code), the penalty being the same for both crimes; i. e., reclusion  temporal (twelve years  and one day to twenty years).

The  prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon  safeguard against governmental oppression of the subject, which made its first appearance in the reign of William and Mary of England in "An Act declaring the rights and liberties of the subject, and settling the succession of  the crown," passed in the year 1689.   It has been incorporated  into the  Constitution of the  United States and into most of the onstitutions of the various States  in  substantially the same language as that used in the original statute.   The exact language of the Constitution of  the United States is used in the Philippine Bill.  It follows that punishments provided in legislation enacted by the  former sovereign of these Islands must be considered according to the standard  obtaining in the United States in order to determine whether they are cruel and  unusual.

According to some authorities, the test to be applied in determining whether a penalty is in violation of this constitutional provision is not the proportion between the offense and  the punishment, but the character of the punishment and its mode of infliction, and that "the legislative discretion in determining the severity of the punishment for crime is not to be interfered with by the courts, so long as all forms of torture are avoided."   Another group of authorities, however, hold that this  constitutional provision is broad enough to  confer upon the courts the power to review legislative discretion concerning the adequacy of the punishment "in very extreme cases, where the  punishment proposed is so severe and out of proportion to the offense as to shock public sentiment and violate the judgment of reasonable people."  The  authorities  pro and con are discussed in Weems vs. United States  (217 U. S., 349, 54 L. ed., 798), where the court sustained the  latter  view.   The supreme court of New York, in treating of this question in People ex rel. Kemmler vs. Durston  (119 N.  Y.,  569), was undecided whether the provision "was intended as an admonition to the legislature and the judiciary, or as a restraint upon the legislature in inflicting punishment for criminal offenses," stating further  that in  England  the provision "was not intended  as a  check upon the powers of Parliament to prescribe  such  punishment for crime as  it considered proper."   But the courts of some of the States have declared unconstitutional  statutory  punishments  which, although not cruel  and unusual as to their character and mode of the infliction, were considered so by reason of their severity in proportion to the offense.  In Ely vs. Thompson   (3 A. K. Marsh (Reu.), 70), where a person of color was to  be punished by  corporal punishment for raising "his or her hand in opposition to any person not being a negro *   *  *," even if in self-defense, the court declared such a  punishment to be cruel and unusual within the meaning of the constitutional provision.  In Illinois, where the provision reads, "all penalties shall be  proportioned to the nature of the  offense," the supreme  court of that State held  (Railroad Co. vs.  People, Ex rel. Koerner, 67 UK, 11, 27, 16 Am. Rep., 599, 611),  that a forfeiture of a franchise for unjust discrimination  in railroad freights  for a first offense, amounting, as it would in some instances, to millions of dollars, was in violation of that clause of the state constitution.  The supreme court of  Michigan, in Robinson vs. Miner and Haug (68 Mich, 549, 563), held that a law which provided for forfeiture of business in addition to fine and imprisonment for violations of the liquor law was cruel and unusual.

In  the following cases the question was  discussed, but the penalties objected to upheld, the courts, however, insisting that it is  possible for the legislature  to violate the provision in question by providing a penalty  out of all proportion to the offense.

In People vs. Oppenheimer (156 Cal., 733), the court said that it is not within the province of the judiciary to declare a penalty fixed by the legislature for a particular crime  to be too severe - 

"*   *  *  unless  perhaps it  be so disproportionate  to the offense for which it is inflicted as to meet the disapproval and condemnation of the  conscience  and reason  of  men generally, 'as to shock the moral sense of the people.' "

In Thomas vs. Kinkead (55 Ark., 502), the court said: 

"But the law-making power itself could  not, under the constitution,  inflict the  death penalty as a punishment for a simple misdemeanor."

In State vs. Becker (3 S. D., 29), the  court said: 

"It is a very noticeable fact that this question has seldom been presented to the courts  and we take this fact to signify that  it has  been the common  understanding of all that courts would not be justified in interfering with the discretion and judgment of the legislature, except in very extreme cases, where the punishment proposed is so severe and out of proportion to the offense as to shock public sentiment and violate  the judgment of reasonable people."

Even in Massachusetts, where the provision reads: "No magistrate or court of law shall   *   *  *  inflict cruel or unusual punishments," it was said in McDonald vs. Commonwealth (173  Mass., 322): 

"It is for the legislature to determine what acts shall be regarded as  criminal, and how they shall be punished. It would be going too far to say that their power is unlimited in these respects.  Ordinarily, the terms 'cruel and unusuar imply something inhuman and  barbarous in the nature of the punishment.   (In re Kemmler,  136  U.  S., 436.)   But it is possible that imprisonment in  the state  prison for a long  term of years  might  be  so disproportionate to the offense as to constitute a cruel and unusual punishment."

On the kindred subject of excessive fines,  the supreme court of Vermont, in State  vs.  Constantino (76 Vt, 192), said: 

"But the constitutional provision that fines  shall be pro-portioned to  the offenses is addressed to the Legislature as well as to the courts.  The Legislature has  the right to prescribe fines, and especially for the punishment of offenses that it creates, and to its judgment and discretion  in this behalf a wide latitude must necessarily be accorded.  Fines are to be fixed with reference to the object they are designed to accomplish.  The degree of criminality of the offense, the illegality or  impolicy of the act intended to  be punished or prevented, are elements that must be considered.   The peace of the State and the welfare of the community often require the Legislature  to create new offenses and to prescribe fines for their punishment, and to alter fines already prescribed.   In performing  this duty the Legislature has no guide but its judgment and  discretion and the wisdom of experience, and the courts cannot properly question its  action, unless the minimum fine is so large as to be clearly out of ail just proportion to the offense."

On this same subject, in McMahon  vs. State (70 Neb., 722), the court said: 

"The fixing of penalties for the violation  of statutes  is primarily a  legislative function, and the courts hesitate to interfere,  unless the fine provided for is so  far  excessive as to shock the sense of mankind."

In State vs. Rodman (58 Minn., 393), the court says: 

"While the fines are certainly  large, yet we cannot say that they are excessive, in a constitutional sense. A large discretion is necessarily vested in the legislature to impose penalties sufficient to prevent the  commission of an offense and it  would have to be an extreme case to warrant the courts  in  holding that the constitutional limit had been transcended,"

In view of these authorities,  and the fact that the legislature invariably  endeavors to apportion a penalty  commensurate with the offense, and that course, in the exercise of such discretion as is conferred upon them in fixing penalties within minimum and maximum degrees, adhere to the same rule, it seems to  us that to assert, when the question assumes the dignity of a constitutional inquiry, that courts should not concern themselves with the relative magnitude of the crime and the penalty, is wrong, both in logic and in  fact.  A contrary view leads to the astounding result that it is impossible to impose a cruel and unusual  punishment so  long as none of the old and discarded modes of punishment are used; and that there is no restriction upon the power of the legislative department, for example, to prescribe the death penalty by hanging for a misdemeanor, and that the courts would be compelled to  impose the penalty.  Yet such a punishment for such a crime would be considered extremely cruel and unusual  by all  right-minded people. But all courts uniformly express great reluctance to sit in judgment upon the legislative department in a matter where such a large measure of discretion must  be exercised, and it appears that in very few cases has this ever been done.

In the case at bar we assume that counsel makes no objection to  the  mode of punishment.  He does, however, attempt to show that the penalty is out  of proportion to the crime by comparing the latter with the crime of illegal detention and the  infliction of serious, physical injuries. He argues that tfie physical anguish of a  woman abducted against her will  with unchaste designs cannot compare to the suffering of  a person upon whom serious physical injuries are inflicted, or threats made against his life, while illegally detained.  There is one common  element in these two crimes, the taking without consent.   But the element of intent is quite different in the two  crimes,  The intent in illegal detention  may  be revenge,  greed for gain, or caprice; but in abduction the intent is "with lewd designs." This qualification can  only mean one thing: a degeneracy on the part of the criminal which strikes at the very foundation of society and calls for severe chastisement, not only to prevent a repetition of the offense on his part, but to serve as a deterrent on others who may also be inclined to lewdness and license.

Pain, physical or mental, should be measured by its permanent effect upon  the  sufferer.  In  the  case  of  severe physical  injuries, temporary physical pain  may be extreme and yet the person may fully recover, after which his injuries become nothing more than a memory, a topic for conversation.  The former sufferer may even  experience some degree of pride and  satisfaction in recalling how he  conducted himself at the time they  were received.  But in the case  of a young, innocent girl, ruthlessly torn from  the side of her mother  in  the dead of night,  overpowered by superior  strength, her cries for help  stifled,  and rushed to an unknown house and  there defiled, there is something more to be endured by her than mere physical pain, although that may not  be inconsiderable.   When such an occurrence ceases  to be a reality to her and becomes  a memory, if it ever does, she may derive no comfort, no  pride, no satisfaction by recalling  it.  Shame, misery, mortification, are her lot.  Nor  can she, if  she would,  banish  the dreadful  occurrence from her thoughts.   The story has spread like wildfire.   Pitying looks, pointing fingers, and morbid stares remind her everywhere she goes of her terrible experience. Temporary physical disability resulting from injuries produce, as a rule, no lasting  effects upon the sufferer.  In the case of  the girl,  the effects  are permanent and far-reaching.  Time may lessen but can never  annul her sufferings.   Nor is she the  only sufferer.  Her whole family, to a lesser degree, shares in her humiliation.

There are only two modes of  punishment in this country by which such a criminal can be effectually prevented from committing a second similar offense;  i. e., by imprisonment or death by hanging.  To allow the culprit to go free with a fine or civil disqualifications would be no  security  whatever  to society.  The legislative  department  has decided that imprisonment Is adequate for the offense, but that, the crime  being of a very aggravated character, in order to attain the twofold end of criminal legislation, i. e., the prevention of a repetition of the  offense by the criminal and a warning  to others similarly inclined, the imprisonment must extend over a long term  of years.  Again, it is unnecessary to resort to unusual expedients in order to arrive at a decision as to whether  the penalty in this case is too excessive.  The crime  committed by these appellants has existed since time out of mind  and has been dealt with by all nations with the severest penalties, and people have often been so intolerant of the  crime that they have been unwilling to await the slow action of the  law, but have taken the matter in hand themselves and inflicted death by burning, at the  stake,  hanging, or any  other convenient method.

In view of all these considerations, we are not at all disposed to declare that the penalty  fixed by law is cruel and unusual.

Jacinto Borromeo was the moving  spirit in the commission of this crime.  It was committed for the sole purpose of giving him an opportunity to satisfy his lust  and he was the  only one who had  illicit  relations  with the girl. The court very properly imposed upon him the maximum of  the maximum  degree.  Under the circumstances,  we think  the judgment  condemning Generoso Polintan  to twenty years should  be modified  by reducing the penalty to seventeen years and four  months. With this modification, the judgments appealed  from are  affirmed, with costs.

Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.