G.R. No. L-1536. July 31, 1947
RICARDO PARULAN, PETITIONER, VS. SOTERO RODAS, JUDGE OF FIRST INSTANCE OF MANILA, AND LUIS B. REYES, ASSISTANT CITY FISCAL OF MANILA, AND LUIS B. REYES, ASSISTANT CITY FISCAL OF…
FERIA, J.:
which reads as follows:
“Passing upon the petition for certiorari in G.R. No. L-1536, Ricardo
Parulan vs. Sotero Rodas, etc. et al., praying for relief from the order
of the respondent Judge of the Court of First Instance of Manila, dated July 8,
1947, denying petitioner’s motion to quash the information filed in criminal
case No. 3649 of said respondent Court as well as petitioner’s motion for
reconsideration and praying, further, for the issuance of a writ of preliminary
injunction restraining the respondent Judge from arraigning the petitioner on
July 12, 1947: the Court resolved to dismiss said petition on the ground that
the Court of First Instance of Manila has jurisdiction over the complex offense
of kidnapping with murder, the one charged in the information. * *
*”
Section 48 of the Penal Code, providing for penalties for complex crime, says
that “when an offense is a necessary means to commit the other, the penalty for
the most serious crime shall be imposed, the same to be applied in its maximum
period.” Therefore, the question for determination in the present case is
whether the offense charged in the information is a complex crime of kidnapping
and murder, the former as a necessary means for committing the latter.
In order to determine whether two offenses constitute a complex crime, we
should not find out whether, in accordance with their definition by law, one of
them is an essential element of the other, such us physical injuries which cause
“the death of the victim, or stealing of personal property without the consent
of the owner through force or violence, for in such cases there would be only
one single offense of homicide in the first and robbery in the second case. But
we should take into consideration the facts alleged in a complaint or
information and determine whether one of the two separate and different offenses
charged therein was committed as a necessary means to commit the other offense;
if it were the two offenses constitute one complex crime; otherwise the
complaint or information charges two crimes or offenses independent from one
another.
For example, the crime of falsification of a private document is not in
general, an essential element of the crime of estafa, because this
offense may be committed through many and varied means; but if a defendant is
charged in a complaint or information with having committed falsification of a
private document as a means for committing estafa, the offense charged
would be a complex offense of estafa through falsification. Also,
abduction is, in general, not an essential element of rape because rape may be
committed anywhere without necessity of forcibly abducting or taking the victim
to another place for that purpose; but if the offense charged is that the
defendant abducted or carried by force the victim from one place to another
wherein the latter was raped by the former, the crime charged would be a complex
crime of rape through abduction, the abduction being in such a case a necessary
means to commit the rape. And although homicide or murder may be committed
wherever the victim may be found, yet if the charge in a complaint or
information is that the victim was kidnapped and taken to another distant place
in order to demand ransom for his release and kill him if ransom is not paid,
the offense charged would evidently be a complex crime of murder through
kidnapping, the latter being a necessary means to commit the former.
The pertinent part of the information reads as follows:
“That on or about the 10th day of June, 1947, in the City of Manila,
Philippines, the said accused, being then private individuals, conspiring and
confederating together and all helping one another, did then and there wilfully,
unlawfully, feloniously, and for the purpose of extorting ransom from one Arthur
Lee or of killing him if the desired amount of money could not be given, kidnap,
carry away in an automobile, detain, and later, after having taken him to an
uninhabited place by means of a motor boat, with treachery, to wit: while the
said Arthur Lee was deprived of his liberty and was very weak as a result of the
physical injuries which had been previously inflicted upon him by the said
accused, fire upon him with a .45 caliber pistol several shots thru the chest
and head, fracturing the right 5th and 6th ribs and the skull and lacerating the
brain, thereby inflicting upon him physical injuries which directly caused the
death of the said Arthur Lee almost instantaneously.”
From a cursory examination of the foregoing it clearly appears that the crime
charged is kidnapping and murder and the former was committed by the defendants
as a necessary means “for the purpose of extorting ransom from the victim or
killing him if the desired amount of money could not be given,” that is, that
the defendants had to kidnap or carry the victim to a faraway and secluded place
in order to better secure the consent of the victim through fear to pay the
ransom, and kill him with certain sense of impunity and certainty that no other
person may witness the commission of the offense by the defendants if the victim
refuses to accede to their demand, and that in fact he was killed by the
defendants because of his refusal to pay the ransom.
The crime charged being a complex crime of kidnapping and murder, the court
of first instance of any province in which any one of the essential elements of
said complex offense has been committed, has jurisdiction to take cognizance of
the offense; and, therefore, the Court of First Instance of Manila from where
the victim was kidnapped has jurisdiction over the offense, for the crime of
kidnapping is a continuous offense committed in Manila and continued all the way
to the place where the victim was taken and murdered.
The motion for reconsideration is therefore denied.
Moran, C.J., Paras,
Pablo, Hilado, Bengzon, Hontiveros, and Padilla, JJ.,
concur.
DISSENTING
PERFECTO, J.:
We vote to grant the motion for reconsideration and to give due course to the
petition.
Upon further analysis of the allegations of the information, Annex A of the
petition, we arrived at the conclusion that, as a matter of fact, two
independent crimes are imputed to the accused, i. e.: kidnapping for the
purpose of extorting ransom, which is the fifth case of article 267 of the
Revised Penal Code, as amended by Republic Act No. 18, and murder as punished by
article 248 of the Revised Penal Code.
There is no such a complex crime as kidnapping with murder, if the
allegations of the information is to be considered.
There are two classes of complex crimes, those which are specifically
described and punished as such, and those committed as is provided in the
following provision of the Revised Penal Code:
“Penalty for complex crimes.—When a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. * * *”
There is no specific provision of law describing the alleged complex crime of
kidnapping with murder, so we have to analyze the facts alleged in the
information in the light of the provision of article 48 of the Revised Penal
Code, which specify two cases: First, when a single acts constitutes two or more
grave or less grave felonies, and second, when an offense “is a necessary means
for committing the other.”
The facts alleged in the information do not belong to neither of the two
cases. The information alleges several acts, so the first case does not exist.
There is nothing in the information to show that kidnapping was “a necessary
means for committing” murder, or vice versa. In the first place, it is absurd to
suppose that murder was committed as a necessary means to commit kidnapping, as
a dead body cannot be the victim of kidnapping. And kidnapping was not “a
necessary means for committing” murder, because, as alleged in the information,
it was committed “for the purpose of extorting ransom.” That purpose is
incompatible with murder.
Kidnapping for extorting ransom is in itself already a complex crime, where
the kidnapping is the necessary means for extorting ransom. It cannot be, as the
information stands, the necessary means for committing murder, just to create a
super-complex crime. Failure to get ransom might be a motive for committing
murder, but no one in his right senses will identify motive with means. Each one
belongs to a different category of ideas than to what the other pertains.
In
all other respects, we are in agreement with the reasonings in the dissenting
opinion of Mr. Justice Tuason.
DISSENTING
TUASON, J.:
We are for denying the petition on the ground that appeal or certiorari does
not lie against an interlocutory order such an one disallowing a motion to
dismiss or to quash; there is no appeal before final judgment is rendered. We
beg to differ with the majority of the court on the merits of the petition. In
our humble opinion distinct offenses are charged in the information with the
aggravating circumstance that one of the crimes was committed entirely outside
the territorial jurisdiction of the Manila courts.
The right to join offenses in the same information is determined by law.
Under our criminal law and practice, two or more allied offenses for which a
single penalty is provided may be joined. Such allied offenses are called
complex crimes. Complex crime is a denomination peculiar to the Spanish Penal
Code. The complex crimes are thus described in article 48 of the Revised Penal
Code:
“When a single act constitutes two or more grave or less grave felonies, or
when an offense is a necessary means for committing the other, the penalty for
the most serious crime shall be imposed, the same to be applied in its maximum
period (as amended by Act No. 4000).”
Besides this general description there are specific combinations of offenses
which are specifically punished as one. Robbery with homicide is an example.
But there is no such creature in Philippine penal legislation as kidnapping
with murder, unless one is necessary to commit the other. Kidnapping and murder
are separate and distinct crimes, different from each other in their nature and
in the elements that make up the crimes. If kidnapping is a continuing offense,
as the prosecution rightly contends, murder does not acquire this characteristic
by the mere fact of its association with the killing. As we have said,
kidnapping is not a part of murder material and essential to the latter or
requisite to its consummation. Physical injuries inflicted in connection with or
on the occasion of kidnapping are an integral part of the latter offense, yes,
and, for this reason, may be alleged with it. This is so because the definition
of kidnapping in one of its forms makes physical injuries inflicted under such
circumstances a material ingredient of it for the purpose of punishment. But it
does not follow that murder even if committed on the occasion of kidnapping
becomes identified, for purposes of prosecution, with the last-named offense.
The fact that physical injuries form part of kidnapping does not by extension
make murder also a part of kidnapping. True, some, not all, decisions refuse to
make any distinction between homicide and murder in cases of robbery but there
is cogent reason for it; the reason is that homicide and murder are in a generic
sense the same differing only in the circumstances in which the slaying is
committed. Murder and homicide are grouped in the same Chapter of the Revised
Penal Code, Chapter I, Title Eight. Physical injuries belong to another genus or
specie of crimes and are dealt with under Chapter II.
On the plain of legislative intent we find further and stronger support for
the observation that murder may not be confused with physical injuries when
committed in association with kidnapping, Bent on curving rampant lawlessness
and especially kidnapping which was prevalent, the Legislature purposely, not
through inadvertence, omitted mention of destruction of human life as a factor
in the imposition of punishment for kidnapping. May we not logically draw from
this omission the inference that the law-makers intended to let murder, when
murder results from kidnapping, remain as a separate crime to be prosecuted
where the killing took place? There is reason behind this theory; it is that
murder was already punishable with death.
Quite apart from all this, the well-known rule that penal laws should receive
strict construction should not be lost sight of. At this juncture I quote
Justice Albert’s comment in his book on another and analogous topic which we
think is in point:
“And as homicide is a crime different from murder and no mention is made of
the latter in the Chapter devoted to the former and since, furthermore, the
penal laws do not admit of a liberal construction and what is said of one crime
cannot be applied by inference to another, and the more so if from a liberal
construction a greater evil would full upon the convict, they logically deduce
that it would be an error to apply to murder the provision of subsection 1 of
article 294 which refers only to homicide.” (Revised Penal Code, New Edition, p.
647.)
Let it be not said that we are indulging in technicalities. Our objection
goes to the jurisdiction of the court, to its vary authority to try an accused
for a capital offense which was begun and completed in another province. It is
the express mandate of section 14, Rule 106, that
“In all criminal prosecutions the action shall be instituted and tried in the
court of the municipality or province wherein the offense was committed or any
one of the essential ingredients thereof took place.”
The laying of venue in the municipality and province where the crime was
committed has not been conceived as a fanciful decoration in the penal system.
It is grounded on the necessity and justice of placing the accused on trial in
the municipality or province where witnesses and other facilities for his
defense are more readily available. The fact that the jury system does not exist
here affects the degree but does not do away with the rationale of having
criminal cases prosecuted at their situs.
We now come to this court’s resolution. The majority pin their opinion on the
assumption that kidnapping of the murdered man in this case was a necessary
means to kill him. And, they say, in the determination of the relation between
the two offenses, we have to look to the allegations in the information for our
guidance.
The information does not say that kidnapping was used as a means to kill Lee.
Even if it did, the allegations would not bear it out; and it is the facts
stated in the information and not the prosecutor’s conclusion by which we have
to judge the correctness or defects of a pleading.
Now then, what is stated in the information is that Lee was killed for ransom
or to be killed. Under this allegation, and in the very nature of things,
kidnapping was necessary to extort money. No one denies that. But we can not
agree that kidnapping was necessary to kill the victim, which is a different
thing. There was no need of carrying him to Bocaue, several dozen kilometers
away from where he had been seized, in order to slay him. The defendants could
have taken his life without resorting to kidnapping. This we know from common
experience which no studied wording of the information can efface or inutilize.
But, even as the information is framed, the allegations enable us to visualize
clearly that Lee could have been slain in Manila before the start of the drive
to Bulacan. We cannot overemphasize the fact that the law uses the word
“necessary” to describe “means.” It is not enough that a crime was used as a
means; it must have been essential to perpetrate another crime.
The following case reported in I Codigo, Penal, Viada, 482, may
be of interest:
“CUESTION X. ¿El que ALLANA la morada ajena, haciendo ceder a fuerza de
golpes la puerta y cerradura de la misma, y, ya en ella, MATA a la mujer que
alli reside, y con la que habia tenido antes relaciones ilicitas, debera ser
castigado por cada uno de estos DOS delitos de ALLANAMIENTO DE MORADA
y HOMICIDIO a las penas correspondientes a los mismos, con arreglo al
articulo 88 del Codigo, o debera serlo tan solo por el DELITO MAS GRAVE
en el grado maximo, con sujecion al 90?—Esto ultimo entendio la Audiencia
de Granada, la que condeno al procesado a la pena de veinte años de reclusion,
como grado maximo del delito mas grave de homicidio. Mas interpuesto recurso de
casacion por la defensa del reo contra dicha sentencia por infraccion, entre
otros, del articulo 88 del Codigo penal, que debio aplicarse, y del 90 por no
ser de aplicacion al caso, declaro el Tribunal Supremo haber lugar a el:
Considerando que tambien es procedente el segundo motivo alegado, porque los
delitos de allanamiento y homicidio no fueron el resultado de un solo hecho ni
medio necesario el uno para cometer el otro, y por consecuencia, no ha debido
aplicarse el articulo 90 del Codigo penal y si el 88, imponiendo por cada uno de
los delitos la pena correspondiente, en cuyo concepto ha incurrido en error
dicha Sala aplicando el primero y dejando de hacerlo del segundo, etc.
(Sentencia de 24 enero de 1881, publicada en la Gaceta de 22 de
marzo.)”
The only ground we can think of for this ruling of the Spanish Supreme Court
was that allanamiento was not a necessary means to commit the
homicide.
It seems clear from a consideration of the facts alleged that the kidnapping
was resorted to as a means to conceal the killing or for other reasons best
known to the accused but not as a means of killing the kidnapped man.
Unwittingly, perhaps, the city fiscal confirms us in this statement. In his
“opposition to motion to quash,” by the language of which the fiscal is bound,
he says:
“In the case at bar we respectfully submit that the taking and carrying away
of the victim from Manila at the point of a gun and for the purpose of killing
him at Bocaue, Bulacan, is an essential ingredient of the offense charged in the
information and as the same took place within the territorial jurisdiction of
this Court, the crime becomes a continuing or transitory offense. We submit that
the kidnapping as alleged in the information is a necessary means for the
commission of the crime of murder as described in the same information. The
accused conceived and contrived to commit the crime of murder at the time they
began to take and carry away the victim from Calle Antipolo of this City.
When the accused kidnapped the victim from Manila and killed him in Bocaue,
Bulacan, all their acts were the result of a single criminal impulse—to kill the
victim. In this connection we respectfully inform this Court that on page 6
of the transcript of the stenographic notes of the statement of Mr. Ricardo
Parulan, one of the accused in this case, made before this representation on
June 28, 1947 at about 9 o’clock in the morning, the following question and
answer appear:‘Q. When did it come to your mind to kill Lee?
A. At the time
that I saw Lee and Gloria arrived with a car at Antipolo.’It is clear
then that from the admission of one of the accused himself the intention to kill
was already in his mind when they began to kidnap the victim in this
case.”
No statement can bring home more clearly the fact that the purpose of the
kidnapping was murder. Not even ransom had anything to do with it. Without this
admission by the prosecution we should reach the conclusion that ransom did not
enter into the heinous crime from the fact, revealed by the complaint, that the
killing was perpetrated on the same date, indeed on the same night, the victim
was whisked away, and also from the manner in which he was slain.
This dissent does not conflict with the illustrations given in the resolution
of the court, except in some respects regarding which, in all modesty, we do not
think the illustrations can pass unchallenged.
On the whole, the illustrations are correct instances of complex crimes
contemplated in article 48 of the Revised Penal Code. Estafa may be and
frequently is committed through falsification of a public document. When this
happens, (when the falsification is a necessary means, as is often in the case,
to commit estafa and not to conceal the latter crime), then both
offenses may and should be embodied in one complaint or information. But our
contention is that kidnapping in the instant case was not a material ingredient
nor a necessary means to carry out the killing but was used as a vehicle to hide
the murder.
The example of abduction with rape is far from clinching the argument for the
prosecution. Abduction with rape is a complex crime, not because one is a
necessary means to commit the other but because, in our opinion, rape is a part
of abduction. One of the essential elements of abduction is lewd designs, and
rape is nothing but lewd designs in its extreme manifestation. Rape is lewd
designs successfully consummated. Rape is embraced in lewd designs. There is no
juristic relation between kidnapping and murder such as exists between abduction
and rape. Physical injuries and murder are not synonymous.
When the resolution compares abduction with kidnapping as a means to commit
rape and murder respectively, it goes further off the mark. There are few points
of similarity between them. Rape cannot be successfully accomplished in the
presence of other people or with people nearby unless they are accomplices to
the crime. To take the woman to a secluded place is in many cases imperative to
effect the criminal’s objective. We do not have to elucidate on this truth. But
as to murder, some of the most celebrated assassinations have been committed in
a crowd, yes, in the mid of body guards and police cordons.
There might be cases (we can not think of any at this moment) where it might
be necessary to kidnap a victim before taking his life in order the better to
attain the murderer’s purpose. In that event, we don’t deny the two crimes might
be combined in one complaint. But we are not speaking of abstract propositions;
we are dealing not with hypothetical cases but with a concrete case governed by
its own particular, concrete facts.
In conclusion, and at the risk of repetition, we maintain that murder as
distinguished from physical injuries is not an essential part of any of the
various forms of kidnapping or illegal detention. If no more than physical
injuries were alleged, there would be only one crime, kidnapping. In that case,
the deed would be a continuous offense triable either in Manila or Bulacan. We
doubt if physical injuries, in that case would, constitute a separate crime.
Physical injuries are absorbed in kidnapping and are alleged merely by way of
describing the principal offense. However that may be, when murder is charged a
new independent crime is brought in, and only the court of the province where
the killing was committed has jurisdiction.
The distinction we make is not an academic one. It has important implications
and lead to serious consequences unauthorized by law. A prosecution for a single
offense of kidnapping, even if accompanied with physical injuries, leaves the
gate open to the imposition of a penalty less than death, depending upon the
presence or absence of modifying circumstances. The joining of kidnapping and
murder as a complex crime would, in case of conviction, allow the court no
choice in the meting out of punishment. Death would have to be imposed
necessarily.
For another thing, we want to point up a matter which though not
appearing in the information will inevitably come out. It is the fact that three
or four of the defendants participated only in the killing of Lee in Bocaue.
They were not with their co-defendants in the alleged kidnapping in Manila. We
confess to a sense of guilt for touching on a question that is off the record.
Our excuse is that it is a truth which if now hidden is bound to face the court
when the evidence shall have been introduced. When that time comes, the rule
will be reversed; the proofs and not the allegations will shape the decision.
This is a situation which all concerned, defense and prosecution, cannot afford
to cover up for the sake of temporary triumph. In the not improbable event that
the thin thread of conspiracy with which some of the accused are connected with
the others in the kidnapping should snap off, it might result in dismissals for
lack of jurisdiction and other complications, entailing delays and other
inconveniences which could be avoided by confronting the realities from the
inception of the prosecution.