People vs. Oquiño, G.R. No. L-37483, June 24, 1983

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-37483 June 24, 1983

THE PEOPLE OF THE PHILIPPINES, appellee,
vs.
ANTONIO OQUIÑO, ROMULO LAGARIO alias "Rogelio Lagario", and ARNIDO CALOSOR, accused, ROMULO LAGARIO alias "Rogelio Lagario", appellant.

The Solicitor General for plaintiff-appellee.

Jose T. Nery for appellant.

PER CURIAM:

This is an automatic review of the judgment of the Court of First Instance of Leyte in Criminal Case No. 580 finding the accused, Romulo Lagario alias "Rogelio Lagario," guilty of the crime of robbery with homicide and sentencing him as follows:

IN VIEW OF THE FOREGOING, in spite of a personal wish of the undersigned trial Judge, that he be not constrained so to do, but finding herein accused guilty beyond reasonable doubt of the special complex crime of robbery with homicide, and considering the aggravating circumstances of abuse of superior strength, recidivism and habitual delinquency, not having been offset by any mitigating circumstance, accused Romulo Lagario is hereby sentenced to suffer the supreme penalty of DEATH. The Court further orders the accused to indemnify the heirs of the deceased in the amount of P12,000.00; and to pay the costs.

SO ORDERED.

Done this 10th day of July 1973, in the City of Tacloban, Phils.

(Sgd.) Godolfredo P. Quisumbing
District Judge

The information for robbery with homicide in the instant case was originally filed on November 11, 1971 charging three accused, namely: Antonio Oquiño Romulo Lagario alias "Rogelio Lagario" and Arnido Calosor. An amended information was later filed on October 23, 1972 likewise charging the said three accused but adding four (4) aggravating circumstances which reads as follows:

That on or about the 10th of October, 1971, in the City of Tacloban, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused conspiring and confederating together and mutually helping each other, armed with bolos (pisao) with deliberate intent and with intent to kill and with the use of violence and with intent to gain did then and there wilfully, unlawfully and feloniously take and carry away a wrist watch marked "RADO" with serial No. 11658 valued in the amount of P650.00 and by reason thereof and or on occasion thereof, attack, assault and stab one Anecito Parades with a bolo (pisao) which accused have provided for the purposes causing his instantaneous death.

Contrary to Art. 294, par. I of the Revised Penal Code, with the following aggravating circumstances:

(1) That the crime was committed in the nighttime thereby facilitating its commission and enabling the accused to commit the crime with impunity.

(2) That the accused all of whom were armed, took advantage of their superior strength;

(3) That the accused is a recidivist, having been convicted by final judgment of three (3) counts of Theft which, together with the present charge, are embraced in the same title of the Revised Penal Code;

(4) That the accused, Romulo Lagario is a habitual delinquent, having been previously found guilty by final judgment in the City Court of Tacloban, in the following cases, to wit:

Crime	Date Committed	Convicted	Date Released
Theft (R-12,997)	4-15-68	5-28-68	March 28, 1969
Theft (R-13,689)	4-19-69	7-2-69	February 2, 1971
Theft (R-13,691)	3-29-69	10-28-69	February 2, 1971

Tacloban City, October 23, 1972. ¹

Accused Antonio Oquiño died on February 5, 1972 ² while accused Arnido Calosor was never apprehended and remained at large. ³ Hence, only accused Romulo Lagario was arraigned on October 26, 1972. He pleaded not guilty to the crime charged and trial on the merits followed.

The evidence adduced by the prosecution is summarized in the People's brief as follows:

At about 7:25 o'clock in the evening of October 10, 1971, Marina Uy and her deceased sweetheart, Aniceto Parades, were strolling and conversing at the Children's Park in Tacloban City. It rained. They took shelter in one of the miniature houses and sat on one of the protruding beams of the balcony facing the door. Suddenly accused Calosor opened the door together with his co-accused, Lagario (sic) and Oquiño (pp. 2-4, tsn, Bugho, March 8, 1973). They went inside, brandished their boloes (pisaoan eight-inch knife) and threatened them. Surprised, the duo fell backward. Oquiño held Marina's right hand and dragged her away. Lagario and Calosor took Aniceto to the side of the small house and wanted to take his wrist watch (pp. 5-9, tsn, Id.). Marina was able to free herself from Oquiños hold, for her hand was wet and slippery. Oquiño joined Lagario and Calosor. He took hold of Aniceto's front T-shirt. Then, Lagario stabbed Aniceto at the solar plexus (chest) and Calosor at the back.

The stab wound inflicted by Lagario perforated the heart through and through and Calosor's perforated the right lung (Exhibit "A", p. 100 Folder of Exhibits). Marina saw the stabbing as the place was lighted with a Mercury lamp. After Lagario and Calosor stabbed Aniceto, Marina ran away to ask for help. She went to the Leyte Provincial Jail accompanied by a man. Somebody at the jail tdalked to the telephone. After about twenty (20) minutes, she returned and found Aniceto wounded. His wrist watch was no longer with him (pp. 9-13, tsn, Id.)

She saw again Oquiño and Lagario in jail. Pat, de la Peña showed to her the wrist watch taken which was recovered from a whom Lagario had asked to sell the watch (pp. 14-16, tsn., Id.). They took the bleeding Aniceto to the City Hospital where he died (p. 18, tsn, Id.). Accused Lagario had three convictions for theft in Criminal Case Nos. R-13691 dated October 20, 1969 (Exhibit "D", p. 102, Folder of Exhibits R-12997 dated May 28, 1968 (Exhibit "E", P. 103, Id.) and R-13689 dated July 2, 1969 (Exhibit "F" p. 104, Id.). Marina was emphatic in saying that she actually saw Oquiño help Lagario and Calosor in subduing Aniceto and in attempting to take the latter's wrist watch (pp. 40- 41, tsn, Id.).

Patrolman Wilfredo de la Peña of the Tacloban City Police Force investigated the stabbing incident in which the victim was Aniceto Parades. Among the three suspects, he apprehended only Lagario and Oquiño the latter, however, died before the case was terminated. The investigation was done in the presence of other police investigators and Lagario's relatives. At the instance of the two accused, Pat. de la Peña recovered the wrist watch of the deceased from one Agripino Aguilos, alias "Agri", a bus driver (p. 6, tsn, Santos, April 25, 1973). They admitted that they took the wrist watch from the victim (pp. 42-45, tsn, Bugho March 8, 1972).

The cadaver of Aniceto R. Parades was autopsied by Dr. Juanito C. de la Cruz, the assistant city fiscal health officer and medico-legal officer of Tacloban City (Exhibit "A", p. 100, Folder of Exhibits). The deceased received two (2) stab wounds: One (1) at the middle of the chest perforating the heart through and through and the other at the back perforating the right lung (Exhibit "B", "B-1", and "B-2", p. 101, Folder of Exhibits). Two (2) different sharp-pointed double-edged instruments were used in inflicting the two (2) fatal wounds (pp. 2-7, tsn, Santos, February 19, 1973). And, considering the location of the wounds, the assailant's were directly in front and directly at the back of the victim (p. 9, tsn, Id.).

The accused presented the following version of the inccident as submitted in his brief:

At the hearing of April 25, 1973, the accused Romulo Lagario, 20 years old, single, laborer and a resident of Tacloban City, testified that on October 10, 1971 at around 7:00 o'clock in the evening he was strolling with Tony Oquiño at the children's park at Tacloban City, when somebody was killed; that while they were strolling, it rained and they took shelter in a small hut at the children's park (tsn, 2-3); that there he saw a man and a woman whose names he did not know; that Oquiño talked to the man and thereafter he saw Oquiño boxed the man and stabbed him in the middle part of the abdomen (tsn, 4); that the man slumped forward and he saw Oquiño again stabbed the man on the back, that he then ran away leaving Oquiño and the man there.

He also testified that he met Oquiño at the pier of Tacloban in the morning of the next day aboard the motorboat Samareno, who requested him to sell a watch (tsn 5); that he told Oquiño he could not sell the watch himself but would look for someone to sell the watch for Oquiño that he requested Agripino Aguilos to sell the watch; that Agripino was unable to sell the watch retaining possession of it (tsn, 6); that the watch came into the custody of the Secret Service Division because when he was apprehended he told the police where the watch was and they took possession of it (tsn, 7).

He also testified that he did not know a woman named Marina Uy who testified against him although he had occasion to see the woman he mentioned in that incident of Oct. 10, 1971 in the courtroom.

On cross-examination, he admitted that he was present when Oquiño stabbed the man he referred to in his direct examination (tsn, 8), that after the stabbing he left Oquiño at the place; that he executed an affidavit in connection with the case but he is not sure if Exh. " G " is the same affidavit he executed; that he did not subscribe and swear to the affidavit Exh. "G", before Fiscal Sano (tsn, 9-10); that Antonio Oquiño gave him the wrist watch; that he did not know a person by the name of Arnido Calosor (tsn, 11-12). "The accused was the only witness who testified in his behalf in view of the fact that at the time of the trial he was an inmate in the City Jail and, therefore, unable to sure a witness or at least contact them.

The trial court as aforesaid, refused to give credence to the evidence of the defendant and convicted him of the crime of robbery with homicide. In the instant review, defendant's counsel de oficio contends that trial court committed the following errors:

I

The lower court erred in giving fun faith and credence to the biased, unnatural, improbable and conflicting testimony of Marina Uy.

II

The lower court erred in finding that the accused is guilty of robbery.

III

The lower court erred in admitting Exhibit "G" an alleged sworn statement by the accused before Fiscal Sano over the objection of the accused.

IV

The lower court erred in not believing the testimony of Lagario and in not acquitting him of the offenses charged.

Under the first assignment of error, accused-appellant seeks to discredit the testimony of Marina Uy, first, because she is the girl friend of the deceased victim, Anecito Parades, second, because her testimony is uncorroborated, and third, because of the alleged inconsistencies that were attendant in her direct examination.

The rule is well-established that a witness' relationship to the victim does not, by itself, impair his credibility. ⁴ On the contrary, it would be unnatural for such persons interested in seeing retribution exacted for the crime to impute the same to any person other than those responsible for the crime. ⁵

While it may be true that Marina Uy is embittered by the irreparable loss of a loved one, her declaration is firm, cogent, credible and straightforward. It is far from being tainted and prejudiced.

It has also been held that even assuming that the testimony of the principal eyewitness was not properly corroborated by the other prosecution witnesses, it is still sufficient to warrant the conviction of the accused, since it is also well-settled that "the testimony of a single witness which satisfies the court in a given case, is sufficient to convict. ⁶

The accused-appellant points to the flaws or inconsistencies in Marina Uy's testimony which refer to "the weapon or criminal agency that caused Parades' death, her distance from the alleged protagonists after the lapse of 3 minutes that she ran away to call for assistance, and her exaggerated and contradictory assertion that she saw the knife penetrate the body of the deceased." ⁷

Appellant claims that it is doubtful whether the weapon used to lull Parades was a pisao or a bolo or a knife because the principal eyewitness vacillated when she testified in court. At one time, she testified that the three accused threatened her and her deceased boyfriend with their pisao ⁸ only to admit later that she did not see the bolos brandished at the time. At another time, she claimed that the weapon was "a pisao, about eight (8) inches long" ⁹ only to claim later that she did not know what kind of weapon it was. ¹⁰ Then at another time, she testified that she actually saw the knife of Calosor enter the body of Parades ¹¹ only to contradict herself again by testifying that she did not actually the knife penetrate the body. ¹²

Appellant next casts doubt on the claim of Marina Uy that she saw how Parades was stabbed because she also claimed that she ran away after she was able to free herself from the hold of Oquiño.

The above inconsistencies are too trivial and unsubstantial to merit a reversal of the decision. Owing to the fast succession of the events in addition to the fear engendered by the same an eyewitness' inability to see the minute details of every sequence, to measure by metes and bounds the distances between one point to another as well as tell the exact minutes that have elapsed, is not unusual. Besides, the seeming contradictions are explainable.

In general, the testimony of Marina Uy presents a credible set of facts. She testified that she and her boyfriend, while seated on one of the protruding beams of the balcony of a miniature house at the Children's Park, were threatened by appellant together with two other companions. She may not have seen clearly the weapons when the three opened the door as she was taken aback as in fact she fell with her boyfriend to the ground but eventually saw the weapons. ¹³ As to the kind of weapons, it should be noted that she did not make a categorical answer that "it was a pisao, about eight inches long." She preceded her statement with the "I did not actually see it at that time." ¹⁴ Then on cross-examination, she explicitly declared that she did not actually know the kind of the weapons they had. ¹⁵ Hence, there is no basis for the alleged contradictions.

With respect to the alleged inconsistency in the testimony of Marina Uy as to whether or not she saw the weapon actually penetrate the body of the victim, We find that her testimony in cross-examination is clear that she actually saw it. Whatever she may have said that she "saw it because of the action of the forward thrust" have been clarified in her later statements. Besides, whether she saw the actual penetration or the action of the forward thrust do not really matter as the latter does not mean any other thing. The stubborn fact remains that the defenseless victim was stabbed by a sharp-pointed instrument. ¹⁶

On the contention of the accused that Marina Uy could not have seen the stabbing as she also claimed that she ran away after she freed herself from the clutch of Oquiño suffice it to state that said argument departs from human nature. The knowledge that one is no longer pursued would naturally make him or her stop and look back especially when a loved one is left behind. This was what Marina did as clearly indicated in her testimony. Hence, she saw the actual assailants.

We disagree with appellant's contention that there was no unlawful taking of the wrist watch and that the prosecution failed to prove the element of intent of gain.

Proof as to motive for the crime, that is, the accused intended to rob or only to kill the victim, is important or essential when the evidence on the commission of the robbery is purely circumstantial or inclusive, ¹⁷ as in this case.

Motive may be inferred from the following circumstances: (1) that certain jewelry and money found to be missing from the house of the deceased a short time after the homicide was subsequently found at a place indicated by the accused; ¹⁸ and (2) that the money which the deceased had at the beginning of the assault had disappeared when the body was being removed, although strewn above were a handkerchief, buttons torn from his shirt, and other articles. ¹⁹

Similarly, the motive to rob was duly proven in this case by the categorical statement of Marina Uy that while appellant and Calosor were dragging Aniceto to the side of the hut, they "wanted to take his watch" ²⁰ coupled with the disappearance of the wrist watch when she returned to the wounded Aniceto after seeking help and its subsequent recovery from a certain Agripino Aguilos whose name was supplied to the police by the appellant and his co-accused, Antonio Oquiño after their arrest.

The intent to gain from the taking of the watch is clearly indicated in appellant's testimony that he was asked by Oquiño to sell the watch. ²¹

We likewise do not find merit in the contention of appellant that his sworn statement (Exhibit "G") is inadmissible for the reason that he is illiterate and there is no evidence presented that he understood the same which was in the English language. Said sworn statement was admitted because Jose Sano, the Assistant City Fiscal of Tacloban before whom the same was subscribed and sworn to, Identified in court appellant's right-hand thumbmark and declared that said thumbmark was affixed in the presence of a witness who also signed said statement. He also testified that prior to the g of the thumbmark, he explained to appellant the contents of the statement in a dialect he knew and understood.

Moreover, in his testimony, appellant admitted having executed an affidavit in connection with this case. ²² He merely denied having sworn to the truth of the statement. But never did he impugn the same from the time he executed it on October 14, 1971 up to the date he testified on April 25, 1973.

We quote hereunder pertinent portions of the sworn statement of the accused bearing on his participation in the crime charged:

Question and Answer No. 4:

Question — Why were you picked up by the police?

Answer — Because I had a participation in a robbing and stabbing incident.

Question and Answer No. 5:

Q — Who were your companions in this incident when happened?

A — My companions were Antonio Oquiño and Arnido Calosor, alias Arnel and Arnul.

Question and Answer No. 6:

Q — Where did this incident occur?

A — On or about 7:25 p.m. October 10, 1971 at Plaza Libertad, this City, inside the Children's Park. (pp. 25-26, Records)

The trial court in its decision made use of the said sworn statement to impeach the credibility of the accused in view of its inconsistency with his testimony in court on the time of the incident, the number of his companions, the person who gave him the watch as wen as on whether or not he witnessed the incident. Thus, the trial court correctly relied on the principle that "the testimony of an accused does not merit credit or inspire confidence when it is inconsistent and incompatible with his statement on other occasions." ²³

Nevertheless, even without the sworn statement, it is clear in the testimony of the accused that he was at the scene of the crime at the time it was committed, that he was in the company of Oquiño one of the perpetrators of the crime; and that the watch was recovered from the person indicated by him and Oquiño All these show his complicity in the crime. His sheer defense that he had nothing to do with it cannot be believed as against the positive and interlocking testimony of Marina Uy who identified him and Calosor as the one who stabbed her boyfriend at the solar plexus and the back, respectively, as corroborated by the testimony of the doctor who confirmed the possibility of the use of two different weapons and inevitably of two assailants, as well as by the testimony of Detective Wilfredo de la Peña who successfully retrieved the watch exactly from the person pointed to by the accused. The lower court correctly found the different testimonies of the prosecution witnesses far more credible than the sole and negative testimony of the accused. Besides, where the issue is one of credibility of witnesses, the findings of the trial court are given great weight, having heard the witnesses and observed their deportment and manner of testifying during trial.

That the crime of robbery with homicide was committed by the accused has, thus, been duly proven beyond reasonable doubt. The trial court properly took judicial notice of the documents marked as Exhibit "E", Exhibit "F" and Exhibit "D", proving the aggravating circumstance of recidivism against the herein accused. By reason of his previous three convictions by final judgment for the crime of theft, the lower court also rightly considered him as a habitual delinquent. The assault against the unarmed victim having been perpetrated by three armed men, there is no doubt that abuse of superior strength characterized the crime. We agree with the trial court that there was no evidence to show that nighttime was sought purposely or taken advantage of to facilitate the perpetration of the offense.

Finding no error in the decision of the trial court, We hereby AFFIRM the death sentence and the civil liability of P12,000.00 due to the heirs of the victim, imposed on accused Romulo Lagario owing to the presence of the aggravating circumstances of recidivism, habitual delinquency and abuse of superior strength with no mitigating circumstance to offset the same.

SO ORDERED.

Makasiar, Aquino, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez and Gutierrez, Jr., JJ., concur.

Fernando, CJ., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

CONCEPCION, Jr. J., concurring:

RELOVA, J., concurring:

The penalty should be reclution perpetua.

Separate Opinions

TEEHANKEE, J., concurring:

CONCEPCION, Jr. J., concurring:

RELOVA, J., concurring:

The penalty should be reclution perpetua.

Footnotes

1 Rollo, pp. 13-14.

2 Record, p. 27.

3 Record, p. 94.

4 People vs. Villalba, 17 SCRA 948; People vs. Bautista, 6 SCRA 522, People va. Valera. 5 SCRA 910.

5 People vs. Bagsican, 6 SCRA 400; People va. Reyes, 17 SCRA 309; People vs. Tagaro, 7 SCRA 187.

6 People va. Sope, et al., 75 Phil. 810.

7 Appellant's Brief, p. 14.

8 TSN, p. 5.

9 TSN, p. 6, March 8, 1973.

10 TSN, p. 23.

11 TSN, p. 35.

12 TSN, p. 36.

13 TSN, p. 23.

14 TSN, p. 6.

15 TSN, p. 23.

16 TSN, p, 5.

17 People vs, Elizaga, 86 Phil. 364.

18 U.S. vs. Merin, 2 Phil. 88.

19 People vs. Dumduma & Caindoy 55 Phil. 953. ,

20 pp. 8-9, tsn, Bugho, March 8,1973.

21 pp. 5-6, tsn, April 25, 1973.

22 p. 19, tsn, April. 25, 1973.

23 People vs. Ramos, 77 Phil. 4; People vs. Bauden, 77 Phil. 105; and People vs. Paras, 80 Phil. 391.

People vs Dela Cruz, G.R. No. 120988, August 11, 1997

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 120988 August 11, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSEMARIE DE LA CRUZ y NIEVA, accused-appellant.

MELO, J.:

Accused-appellant Rosemarie de la Cruz was caught holding a seven-year old schoolgirl by the hand and leading her out of the school grounds. Charged with kidnapping and serious illegal detention of a minor, she was convicted, and accordingly sentenced to suffer the penalty of no less than reclusion perpetua. Accused-appellant contends that her guilt has not been established by proof beyond reasonable doubt and that the entire case is nothing but an overreaction to the situation.

The Information charged:

That on or about September 27, 1994, in the City of Manila, Philippines, the said accused, being then a private individual and without authority of law, did then and there willfully, unlawfully and feloniously kidnap, detain or in any manner deprive one WHIAZEL SORIANO y CRUZ, seven years of age, of her liberty, against her will and consent.

Contrary to law.

(p. 5, Rollo)

The case was docketed as Criminal Case No. 94-139168 before the Regional Trial Court of the National Capital Judicial Region (Branch 35, Manila). After accused-appellant entered a plea of not guilty, trial commenced. The testimony of the principal witnesses for the prosecution may be summarized in the following manner:

Cecilia Caparos, a neighbor of Whiazel Soriano, the victim, testified that on September 27, 1994, at around 11:30 o'clock in the morning, she waiting for her two children inside the compound of the Aurora A. Quezon Elementary School when she saw Whiazel held on the hand and being led away by a woman later identified as accused-appellant. Knowing that Whiazel was enrolled in the afternoon class, she went after them and asked accused-appellant where she was going with Whiazel. Accused-appellant answered that she asked Whiazel to bring her to Rowena Soriano, the child's mother. Cecilia then turned to Whiazel and asked her why she was with accused-appellant. Whiazel answered that accused-appellant requested her to look for the latter's child. Cecilia grew suspicious because of the inconsistent answers, Whiazel's terrified look, and the scratches on the child's face. She told accused-appellant that she will bring accused-appellant to a teacher because she did not trust accused-appellant. Accused-appellant was "surprised and reasoned out", but just the same agreed to go to a teacher (pp. 3-9, 11-13, tsn, April 3, 1995).

The victim, Whiazel Soriano (sometimes referred to in the record as Reazel or Rhiazel), at the time of the incident, was a Grade 1 pupil at the Aurora A. Quezon Elementary School in Malate, Manila. She testified that she voluntarily went with accused-appellant after being asked for help in looking for the school dentist. Whiazel also mentioned that accused-appellant asked for her assistance in looking for accused-appellant's child in a place far away from school. She was neither threatened nor hurt in any way by accused-appellant. She was not led out of the school; in fact they never got out of the school compound. When Cecilia Caparos saw them, Whiazel told accused-appellant that she wanted to go. Accused-appellant refused, and held Whiazel's hand. Whiazel did not try to escape. She did not even cry; well, not until they went to a teacher (pp. 3-9, tsn, April 7, 1995).

For the defense, Eufemia Magpantay, guidance teacher at Aurora A. Quezon Elementary School, testified that on September 27, 1994, at around noontime, accused-appellant, Whiazel, her teacher Mrs. Rioganes, and Cecilia Caparos went to her office. The incident was related to her. Asked what she was doing with Whiazel, accused-appellant said she wanted the child's help in looking for the school dentist. Accused-appellant reiterated this before the assistant principal to whom they all later went. This witness testified that the school allows patients who are not connected with the school to consult at the clinic. Further, she also mentioned that the students of the Aurora A. Quezon Elementary School, the same being a public school, come mostly from low to average income families (pp. 4-9, tsn, April 28, 1995).

Accused-appellant's mother-in-law, Gorgonia Nieva, testified that on the day prior to the incident, accused-appellant had asked her to look for Dr. Luisa Medina, a dentist. Accused-appellant's daughter was then sick. Her inquiries showed that the dentist no longer had her clinic at her house; instead she may be found at the Aurora A. Quezon Elementary School. Thus, the next day, he went with accused-appellant to Manila to look for the dentist. They parted ways when they arrived at the school at around 11 o'clock in the morning (pp. 3-12, tsn, April 24, 1995).

Accused-appellant testified that when she got to the school, she asked; guard where the clinic was. The guard gave her directions, and told her to pass through the same gate on her way out. When she got to the clinic, no one was there so she left. On her way out, a girl, later identified as Whiazel, walked with her at arm's length (nakasabay). She did not hold the child; she did not look at the child; they did not talk; not even smiles were exchanged. Before she could get out of the school, a woman (Cecilia Caparos) called her; hurled invectives at her, and accused her of kidnapping Whiazel. Accused-appellant got mad but nevertheless offered no resistance when Caparos dragged her and brought her to the office of the guidance counselor. There, Caparos repeated her charges against accused-appellant, which accusations the latter denied. Whiazel was asked by the guidance counselor if accused-appellant was really going to kidnap her, she answered no. Very much the same things were said later at the principal's office ( pp. 2-8, tsn, April 21,1995). At the request of the principal, five policemen later came and brought accused-appellant to Station No. 5 of the Western Police District (pp. 14-15, Rollo).

Lending credence to the testimony of the prosecution witnesses, the trial court rendered the appealed decision finding accused-appellant guilty beyond reasonable doubt of the crime of kidnapping and serious illegal detention of a minor, as:

It has been established with moral certainty that with neither legal reason nor just cause, the accused took hold of the child Whiazel by the hand, and led her towards the gate of the school compound against her will, evidently to bring her out of the school perimeter. But before they could actually exit through that gate, the child saw a neighbor (obviously Cecilia Caparos) and told the accused that she wanted to go to her neighbor. The accused, however, refused and did not agree to let the child go and continued to hold her, for which reason, she was not able to get away from the accused . . .

That the accused did not employ any physical force on Whiazel Soriano in detaining and restraining her freedom provides no significant consequence to relieve the former from the resultant effects of her consummated criminal act, for it cannot be denied that she had exerted sufficient moral intimidation on the child which effectively controlled and influenced her will . . . At such tender age and immature mind she can easily be awed and cowed by a person such as the accused.

(pp. 21-26, Ibid.)

Accordingly, accused-appellant was sentenced to suffer the penalty of reclusion perpetua, and to pay the victim, through her parents, P50,000 as moral damages (p. 26, Ibid.).

Accused-appellant interposed the instant appeal, contending that her act of holding the child by the hand and leading her out of the school premises cannot be considered an act of kidnapping without leaving room for reasonable doubt. Accused-appellant points out that Whiazel did not categorically state that accused-appellant tried to kidnap her. On the contrary, the child testified that she voluntarily went with accused-appellant and that she was neither forced nor intimidated into accompanying accused-appellant. Also, it is said, accused-appellant's excuse for going to Whiazel's school to look for Dr. Medina is buttressed by the fact that she had a tooth extracted in jail sometime in November 1994; and that contrary to Whiazel's statement, the guidance teacher, Eufemia Magpantay, testified that even persons not connected with the school are allowed to consult Dr. Medina at the school's dental clinic. Accused-appellant thus contends that she had a valid reason for being at the school premises, as indeed, she did not run away and instead faced her accuser. All these circumstances, accused-appellant submits, constitute reasonable doubt as to her guilt which, therefore, necessitate her acquittal (pp. 4-8, Accused-Appellant's Brief; pp. 53-57, Rollo).

The People, through the Office of the Solicitor General, argue that Whiazel was deprived of her liberty, no matter how short a time, the moment accused-appellant, a person unknown to Whiazel, prevented her from going over to her neighbor, Cecilia Caparos. Under the circumstances, considering that she is of such tender age, deprivation of liberty was consummated even in the absence of force or threats upon the victim. (pp. 6-7, Plaintiff-Appellee's Brief).

In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latter's liberty, in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the People, as consummating the crime of kidnapping in this case are those when accused-appellant held the victim's hand and refused to let go when the victim asked to go over to her neighbor, who by then already saw what was happening. This happened for only a very brief span of time and the evidentiary record shows that there were a good number of people present at that time, that a guard was stationed at the gate, and that there was at least a teacher nearby. The child could have just as easily shouted for help. While it does not take much to scare the wits out of a small child like Whiazel, under the attendant circumstances, we cannot say with certainty that she was indeed deprived of her liberty. It must further be noted that up to that brief moment when Cecilia saw them, and the child asked to be let go, the victim had gone with accused-appellant voluntarily. Without any further act reinforcing the inference that the victim may have been denied her liberty, even taking cognizance of her minority, the Court hesitates to find that kidnapping in the case at bar was consummated. While it is a well-entrenched rule that factual findings of trial courts, especially when they concern the appreciation of testimony of witnesses, are accorded great respect, by exception, when the judgment is based on a misapprehension of facts, as we perceive in the case at bar, the Court may choose to substitute its own findings (People vs. Padua, 215 SCRA 266 [1992]).

To our mind, the felony committed is kidnapping and serious illegal detention of a minor in the attempted stage only. The attempted phase of a felony is defined as when the offender commences the commission of a felony, directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance (Article 6, Revised Penal Code). The overt act must be an external one which has direct connection with the felony, it being "necessary to prove that said beginning of execution, if carried to its complete termination following its natural course without being frustrated by external obstacles nor by the voluntary desistance of the offender, will logically and necessarily ripen to a concrete offense" (Padilla. Criminal Law: Revised Penal Code Annotated, vol. I, 1987 ed., p. 141 citing People vs. Lamahang, 61 Phil 703).

In the case at bar, accused-appellant already commenced her criminal scheme by taking hold of Whiazel by the hand and leading her out of the school premises. As mentioned earlier, these do not sufficiently establish that kidnapping had been consummated. However, considering other attendant facts and circumstances, it does reveal that accused-appellant had less than noble intentions with the victim. Firstly, the child was led to believe that accused-appellant wanted to see the dentist. It is not clear, however, that there really was a Dr. Medina employed by the school as dentist. Not even the guidance counselor who testified for the defense made any specific mention of the doctor. Secondly, if accused-appellant wanted to see the dentist, why was she on her way out? If it is true she had already gone to the clinic and found no one there and that she then decided to leave, what else was she doing with the child? Thirdly, accused-appellant did not simply ask for directions; she wanted the victim to accompany her. That seems suspicious enough. And of all people, why ask a seven-year old? Fortunately, the further progress and completion of accused-appellant's felonious design was thwarted by the timely intervention of Cecilia Caparos, the victim's neighbor.

The Court thus holds that the felony committed by accused-appellant in the case at bar is not kidnapping and serious illegal detention of a minor in the consummated stage, but rather in its attempted stage.

Nevertheless, we believe that the trial court erred in granting moral damages in the amount of P50,000 despite the absence of any evidence on record that the victim suffered sleepless nights, serious anxiety, fright, or similar injury. All that the record reveals is that the victim cried when they were at the guidance counselor's office, nothing more. Inasmuch as moral damages are granted not to enrich, but rather to compensate the victim for the injury suffered (Bautista vs. Mangaldan Rural Bank, Inc., 230 SCRA 16 [1994]), proof of moral suffering must be introduced, failing in which, such an award is not proper (People vs. Manero, Jr. et. al., 218 SCRA 85 [1993]).

Since the crime is only in its attempted stage, the penalty imposable under Article 267 of the Revised Penal Code, as amended by R.A. 7659, which is reclusion perpetua to death, has to be lowered by two degrees (Article 51, Revised Penal Code). Two degrees lower from reclusion perpetua to death would be prision mayor, which has to be imposed in its medium period in the absence of any mitigating or aggravating circumstance (Article 64, Revised Penal Code). Applying further the Indeterminate Sentence Law, the imposable penalty would range from prision correccional, as the minimum, to prision mayor in its medium period, as the maximum.

WHEREFORE, premises considered, the appealed decision is MODIFIED in that accused-appellant is found guilty beyond reasonable doubt of attempted kidnapping and serious illegal detention. Accordingly, accused-appellant is sentenced to suffer an indeterminate penalty of two (2) years and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. The award for moral damages in the amount of P50,000 is hereby DELETED.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Francisco and Panganiban, JJ., concur.