G.R. No. 20819. December 03, 1923

The
appellant was sentenced by the Court of First Instance of Cavite to the
penalty of seventeen years, four months, and one day of reclusion temporal with
the accessories prescribed by the law, to pay the costs and to endow
the offended party in the sum of P500, for the crime of abduction
through violence committed, according to the information, as follows:

“That
on or about the evening of the 22d day of January of this year in the
municipality of Cavite, Cavite, P. I., the above-named accused being
the step-father of Juanita Agabig, fifteen years old, through craft
first and then through violence succeeded in carrying away said Juanita
Agabig with lewd designs to the municipality of Noveleta, where he did
willfully, unlawfully and criminally and through force, lie with her
against her will on the night of the same day, the act having caused
ruptures in the vaginal mucosa of the girl. Contrary to law.”

Defendant’s counsel in this court contends that the defendant should be
acquitted, and in the event of being found guilty, should be convicted
under article 446, and not article 445, of the Penal Code. With this
contention the Attorney-General is in accord.

We have
examined the evidence introduced in this case, and have found that the
offended party without any violence whatsoever went with the accused in
a carromata to Noveleta, where they spent the night, sleeping
in a small room almost at the side of the owners of the house. There
the accused had carnal knowledge with the offended party with such a
passivity on her part as bordered on acquiescence, for she not only
failed to ask for help from the owners of the house, but has been
pleasantly talking with the accused, according to the testimony of
Silvestre Alvarez, the owner of the house.

Without the
consent of the offended girl it was not possible for the accused to
place her on the following day in a train bound to Manila, without
having given rise to public scandal in the Noveleta station, which
scandal should have prevented that trip. Moreover, once in Manila she
was left by the accused on Calle Magdalena in the house of one Felisa
Reyes from the morning of the 23d of January up to the evening of the
next day, and yet the offended girl did not do anything in the sense of
escaping from her abductor and denouncing the fact to the authorities.

All of which shows in our opinion that the abduction of the complainant
Juanita Agabig, single, 15 years old, was done with her consent. And
following the doctrine laid down by this court, among other cases, in
United States vs. Bernabe (23 Phil., 154) and United States vs.
Yumul (34 Phil., 169), the accused must be held guilty of the crime of
abduction with the consent of the offended party, and, in accordance
with article 446 of the Penal Code, must be, as is hereby, sentenced to
the penalty of two years of prision correccional with the
accessories prescribed by the law. As thus modified the judgment
appealed from is affirmed in all other respects with costs against the
appellant. So ordered.

Johnson, Street, Malcolm, Avanceña, Ostrand, Johns, and Romualdez, JJ., concur.