LUIS ASISTIO, ET AL., PETITIONERS, VS. HON. LOURDES P. SAN DIEGO, JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, QUEZON CITY BRANCH IX, RESPONDENT.

This is a verified petition for certiorari and habeas corpus,
praying for the annulment and setting aside of the orders of the Court
of First Instance of Rizal (in its Case Q-5388) denying bail to the
petitioners herein, and that the said parties be granted bail by this
Court.

It is not contested that on July 22, 1963, petitioners Luis Asistio
alias Baby, Pedro Rebullo alias Pita, Edgardo Pascual alias Ging,
Lorenzo Meneses alias Lory, Alfredo Caimbon alias Tatoo, Benigno
Urquico alias Bening, Federico Zaragoza alias Det, and Jose Baello
alias Celing, were, with various other persons, accused by the Quezon
City fiscal of the crime of kidnapping for ransom in violation of the
last paragraph of Article 267 of the Revised Penal Code, as amended by
Republic Act No.18. The amended information describes how the crime
was’committed in the following terms:

“That on or about the 26th day of December, 1962, in
Quezon City, Philippines, the above-named accused, being private
individuals with the exception of the accused VICTORIANO ARANDA and
LORENZO MENESES who are public officers, conspiring together,
confederating with and mutually helping and aiding one another, with
threats to kill the person of Chua Pao alias ‘SO NA’ and for the
purpose of extorting ransom in the amount of TWENTY THOUSAND PESOS
(P20,000.00) from the said CHUA PAO Alias ‘SO NA’ or from his wife did,
then and there willfully, unlawfully and feloniously kidnap, detain and
deprive the person of the paid CHUA PAO alias ‘SO NA’ of his liberty,
to his damage and prejudice.

That the following aggravating circumstances attended the commission of the aforestated crime:

1. That the accused VICTORIANO ARANDA and LORENZO
MENESES took advantage of their public positions as peace officers of
Caloocan City and Quezon City, respectively:

2. That the aforesaid offense was committed with the aid of armed men, or persons who insure or afford impunity

3. That in the commission of the aforesaid offense,1 graft and fraud were employed by the accused;

4. That the aforestated crime was committed by means of motor vehicles; and

5.
That the wrong done in the commission of the aforestated offense was
deliberately augmented by causing other wrongs not necessary for its
commission.

Contrary to Law.”

Petitioners applied for bail on the ground that the record of the ex parte
investigation conducted by the fiscal showed, from the testimony of the
offended party himself, Chua Pao alias So Na, that the latter was (a)
voluntarily released by his captors (b) within 24 hours from seizure
and (c) without any ransom being, in fact, paid. The applicants
contended that under the last paragraph of Article 268 of the Revised
Penal Code, bearing in mind the three circumstances previously
mentioned, the penalty imposable upon them, even if found guilty, could
only be prision mayor, in its minimum and medium periods, and
if a fine not exceeding 700 pesos; that their crime, therefore, could
not be a capital one, so that, even if the evidence were strong, they
were entitled to bail.

The respondent judge, in view of the State’s opposition to the bail
petition, proceeded to hear the evidence of the State in support
thereof, and, after considering said evidence, on November 8, 1963
denied the application for bail. Thereupon, the accused resorted to
this Court, alleging abuse of discretion, and reiterating their
position in the court below.

This proceeding not being an appeal from the order denying bail, we
need not pass upon the pronouncement of the court below that the
evidence of guilt is strong. That conclusion, based upon the trial
court’s appreciation of the evidence, can not be deemed to be
capricious and whimsical so as to justify our issuing a writ of
certiorari, in the absence of other circumstances to the effect, and
none are here urged.

We will, therefore, confine ourselves to considering the legal point
raised by the petitioners, i.e., whether the crime committed by them
can be held non-capital, in view of the special features alleged by
said petitioners, to wit, that the person kidnapped was (a) voluntarily
released by his captors; (b) that he was voluntarily released within 24
hours from the kidnapping; and (c) that no ransom was actually paid for
his release, although ransom had been demanded.

The resolution of the question depends upon the interpretation to be
given to Articles 267 and 268 of the Revised Penal Code, as amended by
Republic Acts Nos. 18 and 1084. These articles provide that:

“ART. 267. Kidnapping and serious illegal detention.Any
private individual who shall kidnap or detain another, or in any other
manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3.
If any serious physical injuries shall have been inflicted upon the
person kidnapped or detained, or if threats to kill him shall have been
made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death^[1]
where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of
the circumstances above mentioned were present in the commission of the
offense. (As amended by Republic Act No. 18 and 1084).

ART. 268. Slight illegal detention. – The penalty of reclusion temporal
shall be imposed upon any private individual who shall commit the
crimes described in the next preceding article without the attendance
of any of circumstances enumerated therein.

The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime.

If
the offender shall voluntarily release the person so kidnapped or
detained within three days from the commencement of the detention,
without having attained the purpose intended, and before the
institution of criminal proceedings against him, the penalty shall be
prison mayor in its minimum and medium periods and a fine not exceeding
seven hundred pesos. (As amended by Republic Act No. 18) (Sept. 25,
1946)”

Petitioners vigorously argue that the last paragraph of Article 268
applies not only to slight illegal detention but also to kidnapping and
serious illegal detention penalized by Article 267; so that even if the
detention was made for the purpose of extorting ransom, the penalty
would be reduced to prision mayor and fine if the requisites of
Article 268, last paragraph, do obtain. Upon the other hand, the
prosecution sustains the proposition that under the last paragraph of
Article 267, all that is required for the imposition of the death
penalty is that (a) there be kidnapping, and (b) that the kidnapping be
resorted to for the purpose of extorting ransom, since said last
paragraph explicitly provides that punishment “even if none of
the circumstances abovementioned (i.e., in the preceding paragraphs of
Article 267) were present in the commission increased to death in 1954
by Republic Act 1084 mission of the offense”, and that the third
paragraph of Article 268 modifies only slight illegal detentions under
that article and does not apply to acts described in Article -267.

Consideration of the legislative history of these articles will show
that the legal thesis propounded by the petitioners in this case is
untenable, and that the view of the prosecution was correct. As
originally enacted in 1928, the Revised Penal Code (Act 3815 of the
pre-Commonwealth Philippine Legislature) provided, in its Articles 267
and 268, the following:

“Art. 267. Detention illegal grave. – Sera
castigado con la penade de reclusidiii temporal, el particular que
secuestrare o encerrare a otru o en cualquier forma le privare tie
libertad:

1. Si el eneierro o detencion hubiere durado inas veinte dias.

2. Si se hubiere ejecutado con simulacion de autoridad publica.

3. Si se hubieren causado lesiones graves a la persona, encerrada o detonida, o se le hubieie amenazado de rmierte.

ART. 268. Detention ilegal leve. – Sera
castigado con la pena de prision mayor el particular que cometiere el
delito de que se trasta en el articulo anterior sin la concurrencia de
ninguna de las circunstancias previstas en el mismo.

En la misma penal incurrira el que proporcionare lugar la ojecucion del delito.

Si
el culpable diere espontaneamente libertad al secuestrado detenido
dentro de los tres dias de su detencion sin haber logrado el objeto que
se propusiere ni haberse comenzado alguna investigacion o proseco
contra el, las penas seran prision correcional ensus grados miniimo y
medio y multa que no exceda de 500 pesos.”

Five things are immediately apparent from a comparison of this
original version and the text as it stood when petitioners committed
the crime charged, and they are:

1. That kidnapping under Article 267 depended solely on the
   circumstances in which the kidnapping took place, irrespective of the
   end sought by the kidnapper;

2. That the
   third paragraph of Article 268 already existed in the original version,
   and plainly was not intended to apply to crimes under Article 267;

3. Article 268 then described two variants of dig illegal detention;

(a) Slight detention where none of the circumstances specified in Article 267 was present (Article 268, par. 142), penalized by prision mayor;

(b) Slight detention where, in addition to the absence of any of the
circumstances mentioned in Article 267, there were, besides three other
circumstances, the voluntary release of the kidnappee within 3 days
from seizure, plus the fact that the purpose intended (whatever it
should be, ransom, marriage, disclosure of secrets, etc.) was not
attained, plus the third fact that the release was effected before the
institution of criminal proceedings against the culprit or culprits.

Clearly, therefore, Articles 267 and 268 were originally mutually exclusive.

4. Kidnapping for purpose of ransom was made an independent variant with a heavier penalty (reclusion perpetua to death)
only in 1946, when the Legislature enacted Republic Act No. 18, which
added a last paragraph to Article 267. It is under this paragraph that
petitioners stand indicted. The penalty for kidnapping for ransom was
raised in 1954 to death (without alternatives) by Republic Act No. 1084.

5. The same Republic Act No. 18 increased by one degree the penalties provided in Article 268, first paragraph, from prision mayor to reclusion temporal, and, under the third paragraph of the article, from prision correcional and P500.00 fine to prision mayor and fine of P700.00.

Now then, if originally (in 1928) the third paragraph of Article 268 of the Revised Penal Code did not
relate at all to the crimes penalized under Article 267, it can not be
seriously contended that said paragraph should be intended to cover any
of the crimes in Article 267 when in 1946 the Legislature (by Republic
Act No. 18) established the delict of kidnapping for ransom for the first time
as a distinct form of serious illegal detention under Article 267, and
prescribed a heavier penalty for it. This conclusion is bolstered by
the fact that Republic Act No. 18, in amending Article 267, did not
make any change in the wording of Article 268, but merely increased the
penalties provided therein.

Nowhere, therefore, are indicia to show that by Republic Act
No. 18 the legislator desired to make the last paragraph of Article 268
applicable to Article 267, as petitioners now contend.

Had the Legislature intended that the third paragraph of Article 268
should apply not only to slight illegal detention under that article
but also to serious illegal detention under Article 267, it would have
either so expressed or at least made of said third paragraph a separate
article when it enacted the Code, or either on of Republic Acts No. 18
and 1084.

Finally, slight illegal detention being penalized with reclucion temporal under Article 268, first paragraph, it is rational that the penalty should be reduced by one degree to prision mayor,
where the special mitigating circumstances, mentioned in paragraph 3 of
said article, are present (i.e., early voluntary release before
indictment and non-attainment if purpose). But why should these very
same circumstances operate to reduce the death penalty (provided for kidnapping for ransom in Article 267) also to prision mayor, when it would then represent a reduction of not less than three
(3) degrees? What reason is there to hold the same circumstances (early
release, etc.) to be more efficacious in lowering the penalty for
serious illegal detention (Art. 267) than in slight detention for which
a lesser penalty (Art. 268) is prescribed?

It is argued that unless the reduction of penalty provided for in
the third paragraph of Article 268 is made applicable to kidnapping for
ransom under Article 267, the life of the person kidnapped would be
endangered, since hia captors would find no reason to release him, as
by so doing they would not benefit from a reduction of penalty. This
argument appears to us to be better addressed to the discretion of the
lawmaker that dictates the policies to be followed in repressing
lawlessness. It is certainly a consideration that would not justify the
Court’s disregard of the evident intent of the law, as disclosed by the
structure and the historical development of articles 267 and 268 of the
Revised Penal Code, heretofore discussed, and which, in our opinion,
render it clear beyond doubt that the third paragraph of Article 268
was not, and could not have been, intended by the lawmaker to apply in
any way to kidnapping or serious illegal detention punishable under
Article 267. The successive increases in the gravity of the penalty for
kidnapping for ransom merely evidences the law’s intent to deter such
crime from being committed at all.

It being thus shown that the crime of which petitioners stand
accused is a capital one, and that the Court of First Instance, after
due hearing and consideration of the evidence before it, has found that
in its judgment the evidence against the accused is strong, there is no
alternative but to declare that the extraordinary writs of certiorari and habeas corpus applied for should be, as they hereby are, denied. Costs against petitioners.

Bengzon, C. J., Padilla, Labrador Barrera, Paredes, Dizon, Regala, and Makalintal, JJ., concur.
Bautista Angelo, J., dissenting.
Concepcion, J., reversed his vote.

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^[1] Increased to death in 1954 by Republic Act 1084.

LUIS ASISTIO, ET AL. Petetioners versus HON. LUORDES P. SAN DIEGO, ETC., Respondent.

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DISSENTING

BAUTISTA ANGELO, J.:

Petitioner is one of the sixteen accused of kidnapping for ransom
before the Court of First Instance of Quezon City. He filed, thru
counsel, a petition for bail, and the same having met an opposition
from the government prosecutor, the court set a date for the hearing of
the petition. However, the hearing was held in abeyance considering
that the accused had not yet been arraigned. In the mean time, hearing
on the merits started at which the offended party testified. From his
testimony he admitted that he was voluntarily released by his alleged
kidnappers within 24 hours and no ransom was in effect paid. In his
testimony, he never mentioned petitioner as one of those who kidnapped
him.

On August 15,1963, after the offended party had testified,
petitioner reiterated his plea for bail on the ground that considering
the admission of the offended party, the penalty imposable on him would
be at most prision mayor, which is bailable. On November 8, 1963, the court a quo denied the petition on the ground that the evidence against him is strong.

The issue before us is whether petitioner is accused of a crime for
which a capital penalty is prescribed. While the information accuses
petitioner, together with other 15 persons, of kidnapping for the
purpose of extorting ransom which under Article 267, last paragraph, is
penalized with death, however, the record shows that the offended party
was released within 24 hours and no ransom was paid by the victim.
There is no indication that petitioner ever asked for it, He was not
even mentioned by the offended party as one of his kidnappers. Such
being the case, the most that can be imputed to petitioner is the crime
of slight illegal detention defined in Article 268, paragraph 3, of the
Revised Penal Code, which prescribes a penalty of prision mayor in its minimum and medium periods.

But the majority opinion holds that the act imputed to petitioner
even considering the admission made fey the offer party is still that
of kidnap for ransom which is penalized with death, because the third
can onlv refer to the crime described fn Article 267 without the
attendance of any of the circumstances therein enumerated and not the
last paragraph added therein which, as already said, penalizes
kidnapping for ransom with death. Its reasoning follows:

“NOW then, if originally (in 1928) the third paragraph of Article 268 of the Revised Penal Code did not
relate, at all to the crimes penalized under Article 267, it can not be
seriously contended that said paragraph should be intended to cover any
of the crimes in Article 267 when in 1946 the Legislature (by Republic
Act No. 18) established the delict of kidnapping for ransom for the first time
as a distinct form of serious illegal detention under Article 267, and
prescribed a heavier penalty for it. This conclusion is bolstered by
the fact that Republic Act No. 18, in amending Article 267, did not
make any change in the wording of Article 268, but merely increased the
penalties provided therein.

“Nowhere, therefore, are indicia
to show that by Republic Act No. 18 the legislature desired to make the
last paragraph of Article 268 applicable to Article 267, as petitioners
now contend.

“Had the Legislature intended that the third
paragraph of Article 268 should apply not only to slight illegal
detention under that article but also to serious illegal detention
under Article 267, it would have either so expressed or at least made
of said third paragraph a separate article when it enacted the Code, or
either one of Republic Acts No. 18 and 1084.”

The view of the majority is too technical to be accepted for it
cannot be denied that the clear intent of the third paragraph of
Article 268 is to lighten the criminal liability of an offender who
voluntarily releases the person kidnapped within three days from the
commencement of his detention without having attained his purpose, and
within this framework comes squarely the case of petitioner. The
evident purpose of this provision is to encourage the kidnapper to
treat with leniency his captive in the hope of deserving a lesser
penalty as otherwise its implication would work great prejudice to the
victim. If one who kidnaps and releases him in three days after failing
to attain his purpose has to serve the same penalty as one who keeps
his victim indefinitely until he pays the ransom, he would find no,
inducement in pursuing the former course knowing that in doing so, he,
would not derive and advantage.

That this view is more tenable is descernible from the fact that
when Republic Act No. 18 was adopted Congress not only added the last
paragraph of Article 267 but even made substantial changes in the third
paragraph of Article 268, Undoubtedly, the failure to make any
reference to that last paragraph in the provision ameliorating the
penalty is merely due to an oversight and not to a desire to consider
kidnapping for ransom as a separate crime. The least that can be said
is that this provision is penal in character and any doubt it may
engender should be resolved in favor of the accused.

For these reasons, I vote to grant bail to petitioner.