G. R. No. 41532. August 29, 1934
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. MARIANO FORMENTO ET AL., DEFENDANTS. MARIANO FORMENTO, APPELLANT.
DIAZ, J.:
the trial court’s judgment sentencing him to an indeterminate penalty
of from seven years of prision mayor to fourteen years, eight months and one day of reclusion temporal,
to indemnify the offended party Buena Aviles in the sum of P200, to
support the offspring, should any be born of her, and to pay one-half
of the costs.
In his brief, the appellant assigns the following three alleged errors as committed by the trial court, to wit:
“1. The lower court erred in not dismissing the
complaint for lack of jurisdiction, it appearing that the complaint was
not instituted and filed by the proper parties enumerated in article
344 of the Revised Penal Code.“2. The lower court erred in
holding that there was proven the elements of abduction with rape and
in not taking into account Exhibit 1 of the defense.“3. The lower court erred in convicting the accused, Mariano Formento.”
With respect to the first assignment of error, it may be said that
the evidence shows that on December 7, 1933, Pia Aviles filed in the
justice of the peace court of Unisan, Tayabas, a complaint which reads
as follows:
“The undersigned Pia Aviles accuses Mariano
Formento, Casimiro Formento and Godofredo Ruiz of the crime of forcible
abduction of Buena Aviles and under oath states the following:“That the undersigned is the guardian and aunt of the minor Buena Aviles who is an orphan and 14 years of age;
“That on the 20th day of November, 1933, here in the municipality of
Unisan, Province of Tayabas, and within the jurisdiction of this court,
the accused Mariano Formento, in connivance and with the understanding
of the other accused Casimiro Formento and Godofredo Ruiz, this latter
being brother-in-law of Casimiro, did then and there willfully and
criminally, by force and intimidation, and with lewd designs, carry and
take the minor Buena Aviles from our home where she is living under the
care of the undersigned.
| “Committed contrary to law. | ||
| “(Sgd.) PIA AVILES | ||
| “Witnesses: | ||
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“Subscribed and sworn to before me this December 7, 1933.
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“(Sgd.)
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CENON L. ARCAYA | |
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“Justice of the Peace
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| “(Exhibit A)” |
After the necessary prelfminary investigation had been conducted,
the case was forwarded to the Court of First Instance of the said
province and the acting fiscal thereof, on the strength of the amended
complaint of Pia Aviles (Exhibit A), filed the information which reads
as follows:
“The undersigned provincial fiscal, upon an
original complaint filed by the guardian of the offended party, accuses
Mariano Formento and Casimiro Formento of the crime of forcible
abduction defined and penalized in article 342 of the Revised Penal
Code, committed as follows:“That on or about November
20,1933, in the municipality of Unisan, Province of Tayabas, P. I., and
within the jurisdiction of this court, the said accused Mariano
Formento and Casimiro Formento, conspiring and confederating together,
willfully, unlawfully and feloniously, by means of force, violence and
intimidation, and with lewd designs, abducted one Buena Aviles of 13
years of age, single, by taking and carrying her away with them from
her dwelling against her consent.
| “Contrary to law. | ||
| “Lucena, Tayabas, P. I., December 29, 1933. | ||
| “(Sgd.) ENGRACION FABRE | ||
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“Acting Provincial Fiscal”
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As may be noted from the complaint above quoted the complainant
stated under oath that in addition to being the aunt of the offended
party Buena Aviles, she was also her guardian. When she testified in
the lower court, she was not asked by the provincial fiscal nor by the
attorney for the defendant-appellant, much less by counsel for the
latter’s co-defendant Casimiro Formento, who is his brother, in what
respect was she the offended party’s guardian, whether she was a de
facto guardian because she was her aunt and took care of her since she
became an orphan by the death of her parents, or she was a judicial
guardian appointed by a competent court for that purpose, fully in
accordance with the provisions of section 551 of the Code of Civil
Procedure. Such being the case, it would seem arbitrary to hold or even
assume that the complainant was not, or in fact she is not the guardian
of the offended party, merely because she failed to present documentary
evidence to prove that fact. This is all the more true because before
as well as during the trial, counsel for the appellant did not even
attempt to prove that she had not been duly appointed as such guardian.
This court is of the opinion that the complainant’s affirmation made in
a solemn manner, that is, under oath, that she was the offended party’s
guardian, was sufficient to confer upon the justice of the peace,
before whom she filed her complaint, authority to conduct the necessary
preliminary investigation and also to confer upon the lower court
authority to decide the case on its merits after the same was forwarded
to it.
Article 344 of the Revised Penal Code prescribes no special form of
establishing the relation between the complainant and the minor who is
the victim of any of the offenses therein enumerated, nor does it
require that such relation, in the case of a guardian and ward, be
necessarily proved by means of a judicial decree or order. Therefore,
when a person affirms under oath that he is the guardian of a minor,
and this is not denied, as in the case of the herein complainant, his
affirmation under such circumstances constitutes sufficient evidence
that he is in fact the guardian in the legal sense. The complainant in
fact complied with the requirements of the law, by stating under oath
that she was the guardian of the offended party. It is therefore clear
that the first assignment of error attributed to the trial court is
unfounded.
As to the last two errors, the evidence shows that after the
appellant, who is a married man, had, early on the morning of November
20, 1933, secured the consent of said Buena Aviles who was then only 13
years of age, he carried her away from the center of the poblacion of
Unisan, where they both resided, to the Panaon railroad station, whence
they later proceeded to Aloneros where they took a banca for the barrio
of Mangayao of the municipality of Guinayangan, which is more than 67
kilometers from Unisan. On the road to the Panaon station, the
appellant had carnal intercourse with the said girl. While the two were
in Guinayangan, the said appellant, with the help of his brother
Casimiro Formento, who had joined them in Aloneros, acting ahead of
developments, conceived the excuse or rather the defense that the said
Buena Aviles was not abducted by anybody but she, of her own free will,
left the house of her aunt and guardian Pia Aviles in order to join her
supposed sweetheart Godofredo Ruiz, another minor of 17 years of age,
who is furthermore a brother-in-law of said Casimiro Formento. In
passing it should also be stated that Godofredo Ruiz was also charged
in this case but after the trial he was acquitted by the court a quo.
The prosecution tried to prove that on the date and place above
stated, Buena Aviles was abducted against her will by the appellant,
but the same evidence presented by it shows that the abduction was
committed with the said girl’s consent. If it were true that she and
her sister Antonia had been threatened with death by the appellant, the
most natural thing to happen, after the threat had ceased, would have
been for the said sister to immediately disclose said fact to her aunt
Pia Aviles and reveal furthermore that the offended party had been
carried away forcibly by the appellant. Nothing of the kind, however,
took place, for which reason Pia Aviles, instead of reporting the
matter to the authorities, went asking for information regarding the
whereabouts of her niece at the houses of their relatives in Pitogo and
Macalelon.
The contention that Godofredo Ruiz and the offended party were
sweethearts is not supported by the evidence and is not convincing. The
offended party did not even know the said youth and if she endured the
farce of feigning love for him, by kissing him in the presence of a
constabulary soldier, it was because she had been instructed to do so
under threat of maltreatment if she did not.
The testimony of Dr. G. Santos Cuyugan, who examined the offended
party some weeks after the abduction, confirms the latter’s testimony
that on the occasion referred to by her the appellant actually had
carnal knowledge of her. According to the said doctor, the signs found
by him on the body of the said offended party indicate that she had
carnal knowledge of a man on or about the date of her abduction.
For all the foregoing, the judgment appealed from is hereby
modified by sentencing the appellant to an indeterminate penalty of
from one year to two years, eleven months and ten days of prision correccional,
to indemnify the minor Buena Aviles in the sum of P500, with the
corresponding subsidiary imprisonment in case of insolvency, to support
the offspring, should any be born of the said minor, but not to
acknowledge the same, being prevented from so doing by the nature of
its origin, and to pay the costs of this instance plus one-half of the
costs in the lower court. So ordered.
Street, Abad Santos, Hull, and Vickers, JJ., concur.