THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. NESTORIO REMALANTE, DEFENDANT AND APPELLANT.

At about 4:00 o’clock in the afternoon of 18 March 1948, while
Mercedes Tobias accompanied by Eusebio Gerilla ard Lucia Pelo was en the way to
her home in the barrio of Guinarona, municipality of Dagami, province of Leyte,
coming from her farm in Maanghon, she met a group of more than ten men all armed
with rifles, some of them with beard reaching the breast. Nestorio Remalante,
one of the bearded men, approached, took hold of and dragged Mercedes Tobias.
She remonstrated and entreated him not to take her because she had done him no
wrong. Remalante continued to drag and struck her with the butt of his rifle on
different parts of her body. The companions of Mercedes were told to continue
their way. They saw Mercedes being dragged toward the sitio of Sawahon. Hardly
had they walked one kilometer when they heard gun reports. The following day
Mercedes Tobias was found dead in Sawahon with two gunshot wounds, the points of
entry being at the back and of exit at the left breast and shoulder (Exhibit A).

Nestorio Remalante was charged with the complex crime of
kidnapping with murder. His companions have not been apprehended. After trial
the Court of First Instance of Leyte found him guilty of the crime charged and
sentenced him to reclusion perpetua, the accessories of the law, to indemnify
the heirs of the deceased in the sum of P2,000 and to pay the costs. He has
appealed.

The appellant claims that at about 1:00 o’clock in the
afternoon of that day while he together with Emeterio Arellano was working on
his farm at Binog the dissidents apprehended and detained him because they were
not satisfied with his answers as to whether he had been furnishing the
constabulary soldiers information about them; that as he begged to be excused
from going with them they beat him up with their rifles hitting him on the head
and causing him to lose consciousness; that when he came to the dissidents took
him together with another male prisoner along with them and on their way they
met Mercedes Tobias and her companions; that upon orders of the leader of the
band he (the appellant) took hold of Mercedes Tobias and when he informed the
leader that she refused to go with them the leader again beat him up (the
appellant); that the dissidents together with the three captives continued their
way; that after walking 100 meters they stopped; that the leader commanded five
soldiers and the two male prisoners to prepare the meal and the other soldiers
to take Mercedes Tobias away; that not long thereafter the appellant heard gun
reports from a place about a kilometer away; and that after taking their meal he
(the appellant) was further questioned and the dissidents satisfied that he was
not an informer released him.

The appellant admits he took hold and dragged Mercedes Tobias
on that occasion, although he pretends it was upon orders of the leader of the
band. If it is true that he was illtreated by the captors and fell unconscious
as a result thereof, it is strange that he did not exhibit or show any bruise or
wound which would have left a scar. The corroborative evidence of his claim is
given by Emeterio Arellano who is the husband of his mother’s sister. The fact
that the appellant grew beard reaching his breast as some of his companions did
is a positive and clear proof that he was a member of the group of marauders,
dissidents, bandits who were harassing the peaceful inhabitants of the town of
Dagami and its environs. It is true that no one witnessed the killing of
Mercedes Tobias, but the acts of the malefactors show and constitute conspiracy
which renders the appellant liable for the crime committed by his
companions.

There is no sufficient evidence of intention to kidnap because
from the moment Mercedes Tobias was held and dragged to the time when the gun
reports were heard nothing was done or said by the appellant or his confederates
to show or indicate that the captors intended to deprive her of her liberty for
sometime and for some purpose and thereafter set her free or kill her. The
interval was so short as to negative the idea implied in kidnapping. Her short
detention and illtreatment are included or form part of the perpetration of the
crime of murder. It is murder because of the concurrence of at least one
qualifying circumstance, either of treachery, or of abuse of superior strength,
or with the aid of armed men, the first shown by the entry of the shots at the
back and the second and the third by the number of the armed captors, the
appellant and his companions, some or one of whom killed Mercedes Tobias. For
lack of sufficient number of votes as required by law, the death penalty
recommended by the Solicitor General cannot be imposed.

The judgment appealed from is affirmed, with costs against the
appellant.

Paras, C. J., Pablo, Bengzon, Tuason, Montemayor, Jugo,
Bautista Angelo, and Labrador, JJ., concur.