THE PEOPLE OF THE PHILIPPINES, PLAINTIFF, VS. MOISES MARCOS Y DE LA ROSA, ACCUSED.

In Criminal Case No. CCC-2873 of the defunct Circuit Criminal
Court at Pasig, Metro Manila, appellant MOISES MARCOS,
together with Danilo Castro, Jun alias “John
Doe” and “Peter Doe,” were charged with the crime of kidnapping, said to have
been committed as follows:

That on or about the 20th day of February, 1979 in Caloocan City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, being the private individuals,
conspiring and confederating together and mutually helping and aiding one
another, for the purpose of extorting ransom from Benito Gonzales, father of
Benedict Gonzales @ “Cocoy” did then and there
wilfully, unlawfully and feloniously kidnap and
carry away in a motor vehicle and detain the latter in an isolated hut for two
(2) nights and one (1) day.

“That accused Moises Marcos y de la Rosa,
cooperated in the execution of the offense by previous simultaneous acts, that
is, by pointing to Benedict Gonzales @ “Cocoy” to his
co-accused and writing a ransom note demanding the amount of P200,000.00 from
the father of the victim, Benito Gonzales but were able to get only the amount
of P20,000.00 as ransom.

CONTRARY TO LAW.”

Appellant’s co-accused, Danilo Castro,
Jun alias “John Doe” and “Peter Doe” escaped arrest and for this reason
only appellant Moises Marcos was arraigned and
tried.

Thereafter, the court rendered its decision, dated July 24, 1979,
with the dispositive portion thereof reading as follows:

“WHEREFORE, in view of the foregoing, the Court finds the accused
MOISES MARCOS, GUILTY, beyond reasonable doubt of the crime of kidnapping, as
charged in the Information, and hereby sentences him with the penalty of Death:
to indemnify the offended party in the amount of P25,000 and another P25,000.00
as moral damages and exemplary damages.”

The evidence for the prosecution as summarized in the appellee’s brief tend to establish that;

“At about 5:00 o’clock in
the afternoon of February 20,
1979, Benedict Gonzales, a 9-year old pupil of the St. Martin de
Porres Catholic School in Paombong, Bulacan, while on his
way home from school, was approached by three (3) men on board an owner-type
jeep. On the pretext that the boy’s father, Benito Gonzales met an accident, the
men asked Benedict to go with them to the hospital (TSN., July 24, 1979, pp.
5-11).”The unsuspecting Benedict went with the three (3) men who brought him to
an isolated hut situated at Baesa, Caloocan City, about one (1) kilometer from the North
Diversion Road. At said hut, Benedict was detained for two nights and one day,
guarded during the day by two of the men (TSN., July 24, 1979, pp. 13-18; p.
19).””At about 8:00 o’clock p.m. of the same day, Benedict’s brother found a
note (Exhibit A) at the gate of their residence. The note in full, reads as
follows:

Feb. 20, ’79

MR. BEN:

‘Our mission in Paombong, is to get you
Mang Ben. But don’t worry about your son, just give us
P200,000.00 cash tomorrow night, if you dislike, you will not see him
anymore.

INSTRUCTION

Let your driver alone to bring the money.
Tell him to travel the Highway going to N. Ecija see
our car with red flag, stop on the rear, go down (sic), on the car with hands up
and with lights on inside the car. Mr. Ben don’t tell this to the authority or
to anybody, if you want to see your son alive. P200,000.00 or your own
son?

“That same night, Benito Gonzales, Benedict’s father, sought the help of
appellant. Appellant is Benito’s first cousin and resides just across the street
from the Gonzales’ residence (TSN., July 23, 1979, p. 4).

“The next morning, February 21, 1979, appellant and Benito went to
the house of Engr. Cesar Gonzales (Benito’s brother)
who referred them to Atty. Santiago Toledo, a former NBI agent, who, in turn
advised them to report the kidnapping to the National Bureau of Investigation
(TSN., July 23, 1979, p. 5).

“At the NBI, Benito was briefed by NBI Supervising Agents Nestor
Gonzales and Emeterio Manalo
as to what course of action to take with the advice that Benito should in the
meantime vie for time by negotiating with the kidnappers to reduce the ransom
money (TSN., July 23, 1979, p. 5).

“From the NBI, appellant Benito proceeded to the office of Engr. Cesar Gonzales at Ayala Avenue, Makati, where appellant advised Benito to disregard the NBI
original plan. He volunteered to talk with the kidnappers to reduce the ransom
money to P20,000.00 and proposed the raise the amount through a loan from a
friend. Benito fearful for the life of his son and having no ready cash at
the time, readily agreed to appellant’s proposal (TSN., July 23, 1979, pp.
5-6).

“From there, appellant and Benito proceeded to the store of Romeo
Castro (appellant’s friend) in Caloocan
City, purportedly to secure a loan of
P20,000.00. Appellant alone talked to Castro inside the latter’s store and,
about three (3) minutes later, invited Benito. After the usual introductions,
Benito believing that appellant was able to secure a loan from Castro, promised
to pay the same within the week (TSN., July 23, 1979, p. 6).

“Thereafter, at about 7:00 o’clock p.m. of the same day, February
21, 1979, appellant and Benito went home to Paombong,
Bulacan. As planned, appellant left purportedly to
meet with the kidnappers at the highway going to Nueva
Ecija (TSN., July 23, 1979, pp. 6-7).

“At about 2:45 o’clock in
the early morning of February 22,
1979, appellant together with Benedict, arrived at the Gonzales’
residence.

“Amidst the tearful reunion, appellant, when questioned how he was
able to get back Benedict, related that on his way to Nueva Ecija, he was signalled to stop with a red flag by persons on board a red
car; with guns aimed at appellant, the persons asked him for the money;
appellant allegedly handed them the P20,000.00 with an apology that said amount
was the only money that the family of Benedict could afford, afterwards, they
proceeded to Novalichas, Quezon City where Benedict was detained (TSN., July 23,
1979, pp. 7-8).

“On March 5, 1979, Benito Gonzales reported the above developments
to the NBI. Noting some suspicious circumstances in appellant’s story, the NBI
conducted further investigation. The NBI agents questioned not only Benito and
Benedict Gonzales but also appellant and Romeo Castro, appellant’s friend, who
allegedly loaned the amount of P20,000.00 ransom money. Appellant also pointed
to the NBI Agents the isolated hut in Baesa,
Caloocan
City where Benedict was detained, and
reenacted the incident.

“In his sworn statement (Exhibit E) dated July 10, 1979 voluntarily given before NBI Agent
Esteban Libit, appellant admitted that he, together
with Danilo Castro, “Jun” and alias “Peter
Doe,” planned and executed the kidnapping of Benedict.

“After the investigation, tha NBI indorsed
the case to the Office of the Provincial Fiscal of Pasig, Metro Manila for the filing of the appropriate
information against appellant Danilo Castro, “Jun” and
“Peter Doe” (Exhibit G). (Appellee’s Brief, Rollo, pp. 76-81).

On the other hand, appellant offers as his version of
the same incident the following:

“Appellant Marcos, 49 years old, married, government pensionado and residing at Sto.
Nino, Paombong, Bulacan,
testified as follows:

“That the father of the victim is his first cousin. (TSN., Hearing
of July 24, 1979, p. 54).

“That he wrote the
ransom letter (Exhibit A) because he was instructed at the town plaza of Paombong, Bulacan by Danilo Castro to write said letter and after Danilo Castro and his companions have taken the boy (Benito
Gonzales) he was instructed to write the ransom letter, (TSN., Hearing of July
24, 1979, pp. 56-57).

“That Danilo Castro is his friend while
the “John Doe” and “Peter Doe” were the companions of Danilo Castro whom he does not know. (TSN., Hearing of July
24, 1979, pp. 57-58).

“That he was forced or intimidated to write tha ransom note because if he will not do so, they (Danilo Castro and companions) will get his children who are
studying in Manila (TSN., Hearing of July 24, 1979, pp. 58-59).

“That he was told by Danilo Castro that if
he will not make the ransom note, his. two children will be “madisgracia.” (TSN., Hearing of July 24, 1979, p.
64).

“That Danilo Castro gave him the pen to
write the ransom note and although instructed to give the ransom note to his
cousin, he placed the ransom note in the gate of his cousin’s house. (TSN.,
Hearing of July 24, 1979, pp. 67-68).

“That he did not report the matter to the authorities because he
thinks that he can get his grandson. (TSN., July 24, 1979, p. 70). (Appellant’s
Brief, pp. 10-11).

In seeking the reversal of the decision rendered against him,
appellant herein attributes to the trial court its commission of the following
assigned errors:

“I

“THE CIRCUIT CRIMINAL COURT OF PASIG METRO MANILA
ERRED IN FINDING APPELLANT MARCOS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
KIDNAPPING WITH RANSOM, CONSIDERING THAT:

“a) SAID COURT ERRED IN ADMITTING THE EXTRA-JUDICIAL CONFESSION OF
APPELLANT MARCOS (EXHIBIT E) WHICH WAS OBTAINED IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS AND THE STATEMENT OF ROMEO CASTRO (EXHIBIT C) WHO WAS NOT
PRESENTED AS A WITNESS;

“b) THERE WAS NO EVIDENCE TO PROVE BEYOND REASONABLE DOUBT
CONSPIRACY OR THAT APPELLANT MARCOS WAS GUILTY AS CO-PRINCIPAL AND/OR
MASTERMIND; and

c) SAID COURT BASED ITS DECISION ON FACTS AND MATTERS NOT SUPPORTED
BY THE RECORDS.

II

“ASSUMING ARGUENDO THAT APPELLANT MARCOS
PARTICIPATED IN THE CRIME OF KIDNAPPING WITH RANSOM, THE CIRCUIT CRIMINAL COURT
ERRED IN IMPOSING THE PENALTY OF DEATH, CONSIDERING THAT:

“a) THE PARTICIPATION OF APPELLANT MARCOS WAS MERELY THAT OF AN
ACCOMPLICE;

“b) UNDER THE THIRD PARAGRAPH OF ARTICLE 268 OF THE REVISED PENAL
CODE, THE PENALTY IMPOSABLE SHOULD ONLY BE PRISION MAYOR IN ITS MINIMUM
AND MEDIUM PERIODS AND A FINE NOT EXCEEDING SEVEN HUNDRED PESOS;

“c) UNDER THE DOCTRINE OF THE CASE OF PEOPLE VS. ACOSTA AND
BRAVO, 107 PHIL. 361, APPELLANT MARCOS DOES NOT BELONG TO THAT TYPE OF
KIDNAPPERS WHO DESERVE THE SUPREME PENALTY OF DEATH CONSIDERING THE SMALL AMOUNT
INVOLVED AND THE CIRCUMSTANCES UNDER WHICH IT (KIDNAPPING) WAS COMMITTED;”
and

“d) THE DEATH PENALTY CONSTITUTES A CRUEL OR UNUSUAL PUNISHMENT
PROSCRIBED BY SECTION 21, ARTICLE IV OF THE 1973
CONSTITUTION.”

Appellant maintains that his extrajudicial confession is
inadmissible as evidence against him because the same was obtained from him
without the assistance of a counsel. He avers that although he waived his right
to counsel, this waiver is without legal effect as such was made without the
assistance of a lawyer, a requisite which should have been complied with as was
stressed in the case of Morales vs. Enrile, 121 SCRA 538 and reiterated
in People vs. Galit, 135 SCRA 465.

The Court in this regard, finds that appellant’s protestations do
not warrant reversal of the appealed judgment. When appellant gave his sworn
statement before the NBI agent Esteban Libit on July
10, 1979 he was not then under police custody. He was merely invited for
questioning so he can shed light on the kidnapping of Benedict. He was even
allowed to go home after the investigation. Appellant who is a retired First
Lieutenant in the Philippine Constabulary and who had studied up to third year
in mechanical engineering, admitted having voluntarily given his sworn
statement, Exh. E, to the NBI.

It is significant to consider that appellant Moises Marcos was duly informed of his right to remain
silent. He was warned that any statement he make may be used against him and
that he is entitled to be assisted by a lawyer of his choice. From the case
records, are reflected the following:

In the sworn statement of appellant
Moises Marcos, dated July 10, 1979, marked as Exhibit
E, his waiver of his right to counsel is clearly expressed:

‘WAIVER

“This is to certify that I have been informed of my constitutional
rights to remain silent and to be assisted by a lawyer in this investigation. I
am, however, waiving my rights to remain silent and I am also waiving my rights
to be assisted by a lawyer in narrating to the NBI investigators What I know
about the kidnapping of BENEDICT GONZALES.

Manila, July 10, 1979.

“SGD. MOISES R. MARCOS.”

Testifying before the trial court, appellant expressly
acknowledged that he voluntarily signed his sworn statement, which was marked as
Exhibit “E.” In this regard, his testimony is as follows:

“xxx

xxx

xxx

“Q     By the way, there are some signatures in this
document (referring to Exhibit E), is this your signature?

“A      Yes, your Honor.

“Q     You were not coerced by the NBI agents to sign
your signature here?

“A      No, your Honor.

“Q     You gave this voluntarily?”

A      Yes, your Honor”

xxx (TSN., July 24, 1979, pp. 65-66).

Considering all the foregoing circumstances, the Court is of the
view that appellant’s admissions, voluntarily made and confirmed by him in open
court during his trial, render worthless the challenge now interposed by him to
the admissibility of appellant’s sworn statement, Exhibit E. The facts and
‘circumstances attendant in this instance, excludes the case at bar from the
scope and application of the pronouncements made in the case of People vs.
Galit, 135 SCRA 465 and Morales, Jr. vs. Enrile, 121 SCRA 538,
which appellant invoked.

The findings and conclusions of the trial court receive fullest
support from the evidence adduced by the prosecution aside from appellant’s
admissions made before the trial court. We find no reason to set aside and
reject the evidence which the court below had properly appreciated.

Consequently, this Court should extend faith and credit to the
factual findings of the court below that appellant Moises Marcos was an active participant and was even the one
who had inspired the commission of the kidnapping of the son of his first
cousin. Apart from the extrajudicial statements of the accused, the other
evidence submitted by the prosecution include the testimony of Benedict
Gonzales, a nine-year old kidnap victim who attested to and
confirmed the fact that it was the accused Moises Marcos, as his “Lolo Nito”
who had taken him from the place of detention in Barrio Baesa and brought him back home to his parents. The
declarations of Benito Gonzales, father of the kidnapped child indicate the role
played by appellant Moises Marcos in obtaining the
amount of P20,000.00 supposedly to repay the purported loan secured from one
Romy Castro and which was to be utilized to pay for
the ransom of the kidnapped boy. All the above mentioned evidence, separate and
independent from the extrajudicial statement Exhibit E, executed by the
appellant, are likewise proof establishing beyond reasonable doubt the
appellant’s guilt.

Appellant submits that he was an unwilling participant in the
crime and that he was forced to write the ransom note because of his fear that
his children in Manila will be hurt by his co-accused. Appellant claims that his
cooperation was not given voluntarily and therefore he should not be regarded as
a principal for even assuming that he participated in the commission of the
crime, his participation was merely that of an accomplice.

We cannot give credence to the claim of the appellant that he was
coerced into writing the ransom note. There is no averment nor is there even
mention of any such alleged coercion exerted on him when appellant executed his
sworn statement, Exhibit E, wherein it described the role he played
in the kidnapping of Benedict Gonzales. What appears is that appellant wrote the
ransom note while in his residence and without any of his co-accused being
present. In his extrajudicial statement, Exhibit E, appellant stated:

To mitigate somehow his criminal
liability, appellant submits that he merely acted as a “go-between” between
kidnappers and the victim’s father and where there is doubt as to whether one
participated as a principal or as an accomplice, the milder form of criminal
liability should be favored. Appellant asks that he be given the benefit of
doubt and that he be regarded, at most only as an accomplice {Appellant’s Brief,
pp. 19-20).

The Court agrees with the conclusion arrived at by the trial court
that appellant’s participation in the said felony was as a principal. It was
appellant who informed his co-accused Danilo Castro
and the other persons named only as “John Doe” and “Peter Doe,” that Benito
Gonzales, father of the kidnapped victim, is among the richest residents of
Paombong, Bulacan. It was no
less appellant Moises Marcos who pointed out Benedict
Gonzales to his other co-accused who later duped said boy into going along with
them on the pretext that the boy’s father was then in a hospital. It was
appellant who wrote the ransom note and he himself placed said note at the gate
of the house of the father of the kidnapped child. Appellant made it appear that
he borrowed money in the amount of P20,000.00 from one Romeo Castro which was to
be used in paying the ransom and although appellant did not actually obtain that
loan, he nevertheless caused the boy’s father to agree to repay that alleged
loan and this the latter did afterwards. Appellant, by himself, went to Baesa, Caloocan City, where the
kidnapped boy was detained. He then brought back the latter to his parents in
Paombong, Bulacan. It is
undisputed that appellant received from Benito Gonzales the amount of P20,000.00
which was intended to serve as reimbursement for the money allegedly borrowed
and which Benito Gonzales was made to believe was paid for the release of his
kidnapped son.

The narration of the kidnapping incident by the herein appellant
is replete with details which could not possibly be known by anyone else other
than those actually and principally involved in the kidnapping and in the
execution thereof.

Finally, appellant contends that the death penalty should not have
been imposed on him because the amount of the ransom money involved is small. He
maintains that the death penalty constitutes a cruel and unusual punishment,
disallowed by Section 21, Article IV of the 1973 Constitution.

The crime committed by appellant and his co-accused is defined and
penalized in Article 267 of the Revised Penal Code, as amended by Republic Act
Nos. 18 and 1084, which provides:

“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.

xxx

xxx

xxx

“4. If the person kidnapped or detained shall be a minor, female, or a public
officer.”The penalty shall be death where the kidnapping or detention was
committed for the purpose of extorting ransom from the victim or any other
persons, even if none of the circumstances above mentioned were present in the
commission of the offense.”

There is no question at all that Benedict, the victim, was then a
minor and that he was kidnapped for the purpose of extorting ransom.

Appellant’s argument that death is a cruel and unusual punishment
does not deserve consideration. In People vs. Camano, 115 SCRA 688, We
already held that the death penalty, as such is not excessive, unjust or cruel,
within the meaning of that word in the Constitution. In said case, this Court
stated, citing Harden vs. Director of Prisons, 81 Phil. 741 —

“The penalty complained of neither cruel, unjust or excessive. In Ex
Parte Kemmler, 136 U.S. 436,
the United States Supreme Court said that punishments are cruel when they
involved torture or lingering death but the punishment of death is not cruel
within the meaning of that word as used in the Constitution. It implies there
something inhuman and barbarous, something more than the mere extinguishment of
life.”

What can be gleaned from a review of the evidence on record is
that apparently there was an abrupt and increasing remorse or contrition on the
part of the herein appellant after the kidnapping was an accomplished fact but
there no longer was any way of turning back from his assigned role. Appellant’s change
of heart could have been brought about by appellant’s realization of the anxiety
and suffering inflicted on the parents of the child whose father is the first
cousin of the appellant. The vaccillation of appellant
is understandable because, as submitted by appellant’s counsel in this case,
“… appellant is not a professional wrong doer (he has not been guilty of any
other previous offense).” (Appellant’s Brief, p. 23).

In our assessment of the facts of this case and upon considering
the conduct and actuations of the herein appellant, We are inclined to agree
with the observations of the appellant’s counsel de oficio, who went to
the National Penitentiary to interview the accused. The Court’s impression is
that when appellant Moises Marcos began to realize the
extent of the grief and torment being undergone by the family of Benedict
Gonzales (the kidnapped child), he must have even at that times, already
regretted his felonious act and thus he voluntarily returned the kidnapped boy
to his parents although full payment of the P200,000.00 being demanded in the
ransom note was not given by the boy’s family. It is indicated, that when his
other co-accused were later grumbling about the small sun of P20,000.00 received
by them (herein appellant had no share in the ransom paid), appellant then sold
his car for P5,000.00 and gave this money to his co-conspirators to appease them
(Q. 65-67, Sworn Statement of Appellant, Exh. E).

Considering the foregoing circumstances, the Court is disposed to
accept the urging of appellant’s counsel de oficio, that if appellant’s
conviction is sustained, the appropriate penalty that he should suffer must not
be the extreme penalty of death.

Appellant has already been detained for almost eight years now and
is presently confined at the National Penitentiary awaiting the outcome of our
review of the judgment rendered by the trial court. The facts of this case tend
to show that the crime in this case was not the result of any deliberate and
well formed nefarious conspiracy of a criminal group. It was rather a crime
clumsily conceived on the spur of the moment. Appellant obviously did not fully
realize the gravity of the crime he and his companions were embarking upon.
Thus, We find the extreme penalty of death imposed on appellant, Moises Marcos, to be inappropriate. In the view of the
Court, under the given circumstances in this case, the penalty that should be
imposed should be reduced to life imprisonment. Furthermore, if the record of
appellant’s behavior while under detention in the National Penitentiary during
the years he has been imprisoned is satisfactory and indicative of his
worthiness to rejoin the society of law-abiding citizens, then the proper
recommendation in his behalf should be made by the prison officials concerned
for the further commutation of his prison term.

The Court also notes that only P20,000.00 was paid by the father
of the kidnapped child for ransom but the amount of P25,000.00 was decreed in
the decision of the court below. It should be therefore reduced to
P20,000.00.

WHEREFORE, the appealed decision, being in accordance with
the evidence is AFFIRMED but with modification, as to the penalty of death
imposed on the accused-appellant Moises Marcos which
is hereby reduced to Reclusion Perpetua. The indemnity to be paid to
the offended party is also reduced to P20,000.00. In all other respects, the
said judgment of the trial court is affirmed.

SO ORDERED.

Teehankee, C.J., Feria, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras and Feliciano,
concur.

Cruz, J.,
in the result.

Yap, J., is
on leave.