G.R. No. 20927. December 21, 1923

The
defendants are accused of the crime of abduction, with violence, the
information alleging that “on or about the 30th day of October, 1922,
in the municipality of Santo Domingo, Province of Ilocos Sur,
Philippine Islands, the said accused, accompanied by three others named
Eusebio Billon, Luis Pagalanan, and Clemente Aviso alias Calvo, the
defendants in criminal case No. 3981 of this court, voluntarily,
maliciously, illegally, and criminally, acting together and mutually
aiding each other, abducted, with unchaste design, Carmen Aquino, 17
years of age, against her will.”

Billon, Pagalanan, and
Aviso, the principal participants in the crime, were tried and
convicted in case No. 3981 (R. G. No. 20926 of this court)^[1]
upon a similar information. On motion of the private prosecutor, the
defendant Estanislao Balotan was discharged from the information in the
present case for lack of evidence. The defendants Juan Rotabia alias
Ramos, Fortunato Favico, and Severino Gutierrez were found guilty and
each of them sentenced to suffer fourteen years, eight months and one
day of reclusion temporal, with the prescribed accessory
penalties and to pay one-fourth of the costs. AH of those defendants
who were convicted have appealed to this court.

The evidence
shows that the offended party, a young girl 17 years of age, was
present in the public market of the town of Santo Domingo in the
morning of October 30, 1922, accompanied by her aunt Agustina Adivisa
and her cousin Felicidad Aquino. While there she was set upon by
Eusebio Billon who, with the aid of four companions, carried her to a
passenger motor truck which had just at that moment arrived at the
market place. The girl resisted vigorously and her aunt endeavored to
rescue her, but both of them were overpowered by Billon and his
companions and the girl was placed aboard the truck and carried to the
town of Sinait, some 30 kilometers distant from Santo Domingo.

The motive for the abduction appears to have been the desire of Billon
to marry the girl and at the trial she testified that while she was
being carried to Sinait, Billon repeatedly kissed her and that he
threatened to kill her unless she consented to marry him.

The defendants were seated in the truck when it arrived at the market
and all of them accompanied Billon and his other companions to Sinait,
but counsel for the defense maintains that the truck was a public
vehicle and the defendants were but ordinary passengers, who had no
connection with Billon’s affairs. There are, however, strong
indications in the record that the truck was hired for the occasion by
Billon and that the “passengers” were his invited friends. He
undoubtedly expected that the young girl, swept off her feet by his
resolute attitude, would yield her consent to the marriage and he
probably thought it best to bring the wedding party with him.

Upon the arrival of the defendants in Sinait they were detained by the
local chief of police, to whom the chief of police of Santo Domingo had
telephoned information as to the abduction, and both the defendants and
the offended party were immediately sent back to Santo Domingo.

Testifying at the trial of the case,” Billon asserted that he had known
the girl for some time, that she had agreed to marry him on the
occasion in question, but that upon their arrival in Sinait, she
changed her mind and withdrew her consent to the proposed marriage.
Billon’s testimony is, however, so strongly contradicted by the other
evidence in the case that it must be wholly disregarded.

The Attorney-General recommends the acquittal of Severino Gutierrez and Juan Rotabia alias
Ramos, and we are inclined to accept the recommendation. There is
practically no evidence that these defendants laid hands upon the
offended party or that they, in any other manner, aided Billon in his
enterprise. Neither is the fact that they were present in the truck
conclusive evidence of any conspiracy among them and the other
defendants to carry the offended party off by violence.

The
court below found that Favico was the driver of the truck. The evidence
presented by the prosecution merely establishes that he and Severino
Gutierrez were sitting in the driver’s seat on the truck, but does not
show directly or definitely that he was the driver and the findings of
the trial judge are probably based on the evidence for the defense by
which this fact is fully established. Counsel for Favico, in his oral
argument, strongly insisted that the elements of the crime must be
proven by the evidence for the prosecution and that the court below,
therefore, erred in taking the evidence for the defense into
consideration for the purpose of directly proving the allegations of
the information.

There is no merit in this contention,
especially so since no exception was taken to the order denying the
defendants’ motion for the dismissal of the case as to Favico and
others upon the completion of the prosecution’s evidence in chief.
Under the circumstances, it certainly was entirely proper for the trial
judge to consider the entire record in determining the defendants’
guilt.

We think, however, that the trial court erred in
finding the defendant Favico guilty as a principal; his case is very
similar to that of United States vs. Lagmay (R. G. No. 15009),^[1]
in which the defendant Lagmay was the driver of an automobile used by
the codefendants for the purpose of the abduction of a young woman, and
in which he was convicted as an accomplice.

For the reasons stated, the judgment appealed from is hereby reversed in regard to the defendants Juan Rotabia alias Ramos and Severino Gutierrez, who will stand acquitted of the offense charged in the information, with the costs de officio.
The judgment is modified as to the defendant Fortunato Favico by
finding him guilty as an accomplice and reducing the penalty imposed
upon him to eight years and one day of prision mayor, with the
accessory penalties provided for in article 61 of the Penal Code, and
the payment of one-fourth of the costs in the first instance and
one-third of the costs in this instance. So ordered.

Street, Avanceña, Villamor, Johns, and Romualdez, JJ., concur.

Malcolm, J., concurring in part: I concur except as to the defendant Favico who should be acquitted.

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^[1] People vs. Billon, promulgated December 21, 1923, not reported.

^[1] Promulgated August 30, 1919, not reported.