PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GENEROSO JO, FELIPE LAPITAN, VIRGILIO ROCA, DELMA SOLEDAD ROCA, CEFERINO LOPEZ, LUZVIMINDA SERRANO LOPEZ AND ANING LIPAYON, AC…

People versus Roca

The Case

This is a criminal appeal in which the People of the Philippines prosecuted Generoso Jo, Felipe Lapitan, Virgilio Roca, Delma Soledad Roca, Ceferino Lopez, Luzviminda Serrano Lopez, and Aning Lipayon for kidnapping. The case matters to a reviewee for three reasons: it shows how the Supreme Court treats the conflicting testimony of very young children, it illustrates the rule that an accused may be convicted of an offense necessarily included in the one charged, and it demonstrates that where several minors are kidnapped, the accused is liable for as many crimes as there are victims, subject to the forty-year cap on the total duration of the sentence.

Procedural History

The Regional Trial Court, Branch Seven, Palo, Leyte, after trial, convicted Virgilio Roca of Kidnapping and Serious Illegal Detention under Article 267 of the Revised Penal Code, sentenced him to reclusion perpetua, ordered him to indemnify the complainant in the amount of 10,000 pesos, and to pay one-sixth of the costs. His co-accused Generoso Jo, Delma Roca, and Luzviminda Lopez were acquitted for insufficiency of evidence, while Felipe Lapitan and Ceferino Lopez remained at large and did not stand trial. Roca appealed directly to the Supreme Court, assigning errors against the judgment of conviction.

Facts

Elisa Casal Jo was married to Generoso Jo, with whom she had three children: Eligen, Allan, and Riza, aged nine, seven, and six at the time of the incident. The couple separated in December 1975, and Elisa filed a complaint for support, which was decided in her favor, and later a complaint for concubinage against Generoso and his mistress, which was still pending when the events of this case unfolded.

On the afternoon of July 27, 1980, Elisa, her three children, and her mother went to the house of Virgilio Roca in Tacloban City, where they met Felipe Lapitan, who claimed to be a witch doctor hired by Generoso to kill Elisa by sorcery. Lapitan told Elisa that the evil spirit could be averted only if she submitted to treatment, and she consented out of fear. She and her children stayed in Roca's house. On July 30, while Elisa and her mother were washing clothes at the back of the house, Roca and Lapitan took the three children on a jeep to the pier and brought them by boat to Lapitan's house in Daram, Samar, a solitary house in an isolated place reached only by walking about two kilometers along a muddy path. The children were kept indoors for more than five days, watched over by Luzviminda Lopez, and were sometimes fed only once a day.

When Elisa learned that her children were gone, Roca refused to accompany her to Daram and warned her not to leave his house. On August 1, Elisa's sister visited and was likewise not allowed to take her home. That evening, Elisa's brother-in-law Benedicto Sia threatened to report the matter to the Philippine Constabulary, and Roca promised to fetch the children. On August 3, Elisa and her mother were allowed to go home, and on August 4, Roca brought the children back to Tacloban, where Elisa found them. A criminal complaint for kidnapping of minors was filed, later amended to include the other accused and, still later, Generoso Jo as principal by induction.

Issues

• Whether or not the trial court erred in disregarding the testimony of Allan Jo, one of the alleged kidnapped minors, in favor of the testimony of his elder sister Eligen.
• Whether or not the prosecution proved the essential elements of the crime of kidnapping and serious illegal detention.
• Whether or not the findings of the trial court rested on speculation and conjecture as to the motive of the accused.
• Whether or not the accused may be convicted of kidnapping and serious illegal detention under Article 267 when the information charged kidnapping and failure to return a minor under Article 270.
• Whether or not the accused should be sentenced for as many offenses as were charged and proved.

Applicable Provisions

Article 267 of the Revised Penal Code, as quoted by the Court, provides:

Article 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 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.

This is the provision under which the accused was convicted, and its fourth paragraph, referring to a minor, supplies the qualifying circumstance in this case.

Article 270 of the Revised Penal Code, the offense charged in the information, provides:

Article 270. Kidnapping and failure to return a minor. The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.

The Court used this provision to explain why the offense proved is necessarily included in the offense charged.

Ruling

On the first issue, the Court upheld the trial court's preference for Eligen's testimony. Eligen was nine and Allan was seven at the time of the crime, and twelve and ten when they testified three years later. At his tender age, Allan could not have had a correct perception of what was happening, and he was made to narrate the incident after the lapse of three years. Eligen, by contrast, gave a written statement to the police soon after her return, and the likelihood of her mother coaching her was remote because the mother was not with the children in Daram. Allan, moreover, was in the custody of his father, who exercised moral ascendancy over him.

On the second issue, the Court found the essential elements proven: the kidnapping was directly participated in by Roca and Lapitan, both private individuals; the three children were deprived of their liberty because they could not leave Lapitan's house at will; their detention was illegal, there being no justification for it; the detention lasted more than five days; and the persons kidnapped were minors. The Court also noted that Roca was not without motive, since consideration was paid to Lapitan.

On the third issue, the Court rejected the claim of speculation, resting its conclusion on the established facts of deprivation of liberty and illegal detention.

On the fourth issue, the Court held that while there is a variance between the offense charged and the offense proved, the offense charged is necessarily included in the offense proved, inasmuch as the essential ingredients of the offense charged form part of those constituting the offense proved. Deliberate failure to restore a minor under one's custody and kidnapping of a minor who is not in custody both constitute deprivation of liberty. The Court added that there is authority to the effect that paragraph one of Article 270 might have been superseded by Article 267, as amended, which punishes as serious illegal detention the kidnapping of a minor regardless of the purpose of the detention.

On the fifth issue, the Court agreed with the Solicitor General that although the trial court convicted Roca of only one crime and imposed only one reclusion perpetua, three kidnappings were committed as alleged in the information and proved during trial. Since Roca did not object to the information charging more than one offense, he is deemed to have waived the objection.

Doctrine

First, the testimony of a child of tender years who could not have had a correct perception of the events, and who was made to narrate them after the lapse of years while under the moral ascendancy of a parent, deserves less credence than that of an older child who gave a statement to the police soon after the incident. Second, the elements of kidnapping and serious illegal detention under Article 267 are: that the offender is a private individual; that he kidnapped or detained another or deprived him of liberty; that the detention was illegal; and that any of the qualifying circumstances in the article is present, such as the detention lasting more than five days or the victim being a minor. Third, an accused may be convicted of the offense proved when it is necessarily included in the offense charged, because the essential ingredients of the charge form part of those constituting the offense proved. Fourth, where several minors are kidnapped, the accused is liable for as many crimes as there are victims, and the total duration of the sentence shall not exceed forty years under Article 70 of the Revised Penal Code.

Disposition

The appealed judgment was modified, and Virgilio Roca was sentenced to three penalties of reclusion perpetua for three separate crimes of kidnapping and serious illegal detention, with the maximum duration of the sentence not to exceed forty years, and with one-sixth of the costs.

Remember This

The single line worth memorizing is that the kidnapping of a minor is serious illegal detention under Article 267 regardless of the purpose of the detention, and each victim constitutes a separate crime. Examiners like to use this case on the credence of child witnesses, on the rule of necessarily included offenses, and on the forty-year cap on the total duration of the sentence.