G.R. No. 3273. July 13, 1907

On the 18th day of April, 1904, a complaint was filed with the Court of First Instance of Occidental Negros, of the following tenor:”The undersigned fiscal accuses Quirino Peralta and Vicente Peralta, now on bail, of the  crime of kidnapingwith lesiones leves, defined and punished by article 484 in connection with article 587 of the Penal Code, committed as follows:

“Esteban Gemefino, a servant, having run away from the house of the above-named Quirino Peralta and Vicente Peralta,  father and  son,  respectively, on the morning  of November 1, 1903, the latter went to  the house of Isabel Geranda, at a place named Naga, within the former town of Cabancalan, now consolidated with  the town of Hog, in this province, and employing violence upon  the said Isabel Geranda, whom they kicked,  breaking one of her right ribs, and seized and took away with them Cenon Gemefino, a child under 2 years of age, a grandson of the latter. They took the child to their house and tied  it to a wooden pillar, for the purpose of holding it until the said Esteban Gemefino, an elder brother to said Cenon, should make his appearance or return to the house of the accused.   This act being a violation of the law.”

In our opinion, the facts stated in the foregoing  complaint have been fully proven in this  case.  It has  been clearly established that the  accused went to the house of Isabel Geranda on the morning of November 1, in search of Esteban Gemefino who had run away  while in their service.  As they did not find him there, they caught hold of Cenon, a child about 2 years old, brother to the missing Esteban, and as his grandmother Geranda, who carried him in her arms, refused to deliver  the child, both the accused Quirino and Vicente illtreated her, and  forcibly took the child away from her.   They  then compelled  a young woman named Petronila  Lagotar, of 15  years  of age, who at that time was  in said house, to carry the child to the house of the accused, and when  the latter arrived there, they tied the child to a wooden pillar of the house    and as the girl Petronila commenced to weep on seeing  what they were doing to the child Cenon, the  accused  dismissed her.    

Petronila then went in search of Juan  Gemefino, the  child’s father, and informed him of what  had happened.  In the afternoon of that day Juan Gemefino reported the  case to the justice of the peace of Cabancalan  who, on  the following day,  ordered the arrest of the accused, and  directed the child to be taken to his court.    

If should be noted that at midnight of the, same date,  November  1, the child Cenon was untied by his  brother  Urbano, who was also in the service of the accused,  because  of pity for the child and at a time when.the accused Peralta  were asleep.   

It can not be denied that when the accused seized and  removed the child to  their house from which  he was  recovered by two policemen, their intention was  only to  compel  the parents of Esteban, the runaway, to  look for  him, thus using pressure on them through the seizure of  a creature of tender age, for the purpose of compelling the runaway Esteban  to make his appearance, because the  Gemefino family owed them 100 pesos.   

The important question which this cause offers is, How  should the crime which the commission  of  such acts implies, be classified? The complaint merely refers to the crime as that of kidnaping, prescribed and punished in  article 484  of the Penal Code, which reads:  

“The abduction of a child under 7 years of age shall be  punished with the penalty of cadena temporal” (imprisonment for a number of years).

The commentators do not agree as to whether such facts as have been proven in this cause constitute  a violation of  said article.  Apparently, Viada thinks affirmatively, since  at page 288 of volume 3 of his commentaries to the  code he says:  

“The object of the provision contained in  this article is to punish severely  the sequestration of children, which  unfortunately is still too frequently committed, either for the purpose of obtaining ransom from the afflicted parents,or to employ the  child as victim of vile passions, or to make of it a puppet-player or the like, or for the purpose of imploring public charity, etc,.

“The abduction being carried out for any of the above mentioned objects, or for others similar to them, the victim being a child of either sex under  the age of 7, whether it was effected by means of violence or  by fraud, we have the crime herein defined and punished with cadena temporal, to its full extent.’   

Pacheco, commenting on article 408 of the Penal Code of 1850, which is the equivalent of article 484 of the present code in force in these Islands, states  on page 249 of the third volume of his commentaries, the  following:

“The abduction of a child, whatever  may have been the reasons inducing thereto, is a crime of unusual gravity by itself, of  great perversity on the  part  of the person who commits it.  Whether it be to cause him injury,.and even if it were to do him good, it is always a step which attacks the holiest  and most intimate  affections,  and the  most sacred rights.  The law has at all  times and  in  every country looked upon it with just severity, and the article under examination punishes it,  as it should be punished,with one of the heaviest penalties which the code inflicts. This is  more than the detention referred to by us in the preceding chapter,  and  there would be no justice  if it were not punished more severely.   

“We  do not believe  that  any difficulty will  occur in applying  this article.   Would any person who seized a child for the sole purpose of locking it up and depriving him of liberty, unless afterwards returned to liberty or to its parents, fall within the provisions of the same?   No. Such an act comes under the provisions of articles 405 and 406, which are equivalent to articles 481 and 482 of the Penal Code now  in force.  The question at issue here is the abduction of a child for the purpose of keeping it, or to cause  it to lose all  notion  regarding its origin, the possession of its true and actual existence.   It is like the alleged  custom of gypsies, or what  a person desiring to suppress the rights of others might do, and for such purpose abducts minors and when in possession of them finds that they are an obstacle to him.”

Groizard has evidently the same opinion as Pacheco since at page 575 of volume 5 of his commentaries he says:

“The crime of abduction  of a minor, in view of these reasons and on  account of the indications made by us in  the introduction of this chapter, has no reason to be thus considered in most of  the cases, according  to  the literal  terms of this article.   In our opinion, its special meaning should be limited to include, only such parties who abduct minors for purposes other than to obtain ransom, for unchaste designs, to change the status of the abducted party or to commit  any other crime expressly defined and punished by the code.”

In view of the foregoing, the culpability of the indicted parties as principals, justly convicted of the crime of illegal detention,  has been fully  proven, although  they had no manifest intention of retaining the child permanently, or to cause him to absolutely disappear from the home of his parents, but simply to  keep him until Esteban, the abducted child’s brother, who had run away from the house of the accused,  appeared and returned to their service. For this reason we adopt the view taken by Pacheco in his commentaries, and hold that the act committed by the accused is not included  within article 484, but  is covered by article 481  of the Penal Code now in force.

The question at issue is a crime against the liberty and safety of a person, and the  complaint states facts which actually constitute the crime of illegal detention, and not that of abduction  of a minor, as it has been wrongfully termed by the provincial fiscal.  In  view of  the fact that such an error in the classification does not affect any of the rights which the penal law  insures to the accused, and whereas the court, upon accepting the opinion of the judge who rendered  the decision, considers the offense under a light  which, in  its opinion, leads to a more exact and proper interpretation of the  law, to  the benefit  of the accused, because of the fact that the penalty is comparatively lower,  it is proper, as we deem it, that the accused be punished in accordance with the provisions of the  first paragraph  of  said article 481, in its medium degree, because no  mitigating or  aggravating circumstances  are present.

Nor can the lesser penalty prescribed in the third paragraph of said article be applied,  since it has not been shown that the accused spontaneously set at liberty the child that they had so cruelly abducted.   The liberation, on the contrary, was ordered by the authorities after proceedings had been commenced upon the strength of the information filed by his own father.

Therefore,  basing  our opinion on the facts above set forth; the judgment of the lower court is hereby reversed and the accused, Quirino Peralta and Vicente Peralta, are each sentenced to the penalty of eight years and one day of prision mayor, to the accessories prescribed by article 61 of the code, and to pay one-half of the costs in both instances.   So ordered.

Arellano, C,  J.J., Johnson,  Willard,  and  Tracey,  JJ., concur.