Chi Ming Tsoi vs. Court of Appeals, G.R. No. 119190,January 16, 1997

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119190 January 16, 1997

CHI MING TSOI, petitioner,
vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a marriage in its journey over troubled waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of the unseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband in the Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on the ground of psychological incapacity. Petitioner appealed the decision of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated February 14, 1995.

The statement of the case and of the facts made by the trial court and reproduced by the Court of Appeals ¹ its decision are as follows:

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")

After the celebration of their marriage and wedding reception at the South Villa, Makati, they went and proceeded to the house of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their married life.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were supposed to enjoy making love, or having sexual intercourse, with each other, the defendant just went to bed, slept on one side thereof, then turned his back and went to sleep . There was no sexual intercourse between them during the first night. The same thing happened on the second, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together during their first week as husband and wife, they went to Baguio City. But, they did so together with her mother, an uncle, his mother and his nephew. They were all invited by the defendant to join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no sexual intercourse between them, since the defendant avoided her by taking a long walk during siesta time or by just sleeping on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. [S]he claims, that she did not: even see her husband's private parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a virgin, while that of her husband's examination was kept confidential up to this time. While no medicine was prescribed for her, the doctor prescribed medications for her husband which was also kept confidential. No treatment was given to her. For her husband, he was asked by the doctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show his penis. She said, that she had observed the defendant using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to her, the defendant married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled by reason of psychological incapacity, the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is physically and psychologically capable; and, (3) since the relationship is still very young and if there is any differences between the two of them, it can still be reconciled and that, according to him, if either one of them has some incapabilities, there is no certainty that this will not be cured. He further claims, that if there is any defect, it can be cured by the intervention of medical technology or science.

The defendant admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual contact between them. But, the reason for this, according to the defendant, was that everytime he wants to have sexual intercourse with his wife, she always avoided him and whenever he caresses her private parts, she always removed his hands. The defendant claims, that he forced his wife to have sex with him only once but he did not continue because she was shaking and she did not like it. So he stopped.

There are two (2) reasons, according to the defendant , why the plaintiff filed this case against him, and these are: (1) that she is afraid that she will be forced to return the pieces of jewelry of his mother, and, (2) that her husband, the defendant, will consummate their marriage.

The defendant insisted that their marriage will remain valid because they are still very young and there is still a chance to overcome their differences.

The defendant submitted himself to a physical examination. His penis was examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")

The doctor said, that he asked the defendant to masturbate to find out whether or not he has an erection and he found out that from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr. Alteza said, that the defendant had only a soft erection which is why his penis is not in its full length. But, still is capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman.

In open Court, the Trial Prosecutor manifested that there is no collusion between the parties and that the evidence is not fabricated." ²

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon City. Let another copy be furnished the Local Civil Registrar of Manila.

SO ORDERED.

On appeal, the Court of Appeals affirmed the trial court's decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

I

in affirming the conclusions of the lower court that there was no sexual intercourse between the parties without making any findings of fact.

II

in holding that the refusal of private respondent to have sexual communion with petitioner is a psychological incapacity inasmuch as proof thereof is totally absent.

III

in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both.

IV

in affirming the annulment of the marriage between the parties decreed by the lower court without fully satisfying itself that there was no collusion between them.

We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the burden of proving the allegations in her complaint; that since there was no independent evidence to prove the alleged non-coitus between the parties, there remains no other basis for the court's conclusion except the admission of petitioner; that public policy should aid acts intended to validate marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial court on the admissions and confessions of the parties in their pleadings and in the course of the trial is misplaced since it could have been a product of collusion; and that in actions for annulment of marriage, the material facts alleged in the complaint shall always be proved. ³

Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved.

The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to prevent is annulment of marriage without trial. The assailed decision was not based on such a judgment on the pleadings. When private respondent testified under oath before the trial court and was cross-examined by oath before the trial court and was cross-examined by the adverse party, she thereby presented evidence in form of a testimony. After such evidence was presented, it be came incumbent upon petitioner to present his side. He admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual intercourse between them.

To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19).

The case has reached this Court because petitioner does not want their marriage to be annulled. This only shows that there is no collusion between the parties. When petitioner admitted that he and his wife (private respondent) have never had sexual contact with each other, he must have been only telling the truth. We are reproducing the relevant portion of the challenged resolution denying petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:

The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. The issue of whether or not the appellant is psychologically incapacitated to discharge a basic marital obligation was resolved upon a review of both the documentary and testimonial evidence on record. Appellant admitted that he did not have sexual relations with his wife after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995). ⁴

Petitioner further contends that respondent court erred in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. He points out as error the failure of the trial court to make "a categorical finding about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal which may not be necessarily due to physchological disorders" because there might have been other reasons, — i.e., physical disorders, such as aches, pains or other discomforts, — why private respondent would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a short span of 10 months.

First, it must be stated that neither the trial court nor the respondent court made a finding on who between petitioner and private respondent refuses to have sexual contact with the other. The fact remains, however, that there has never been coitus between them. At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on record to show that any of the parties is suffering from phychological incapacity. Petitioner also claims that he wanted to have sex with private respondent; that the reason for private respondent's refusal may not be psychological but physical disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to find out or discover what the problem with his wife could be. What he presented in evidence is his doctor's Medical Report that there is no evidence of his impotency and he is capable of erection. ⁵ Since it is petitioner's claim that the reason is not psychological but perhaps physical disorder on the part of private respondent, it became incumbent upon him to prove such a claim.

If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity. ⁶

Evidently, one of the essential marital obligations under the Family Code is "To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity.

As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him does not inspire belief. Since he was not physically impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of symphaty for her feelings, he deserves to be doubted for not having asserted his right seven though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife was suffering from incapacity, the fact that defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status.

We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act, which is not phychological incapacity, and which can be achieved "through proper motivation." After almost ten months of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom he professes to love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the contemplation of the Family Code. ⁷

While the law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations.

It appears that there is absence of empathy between petitioner and private respondent. That is — a shared feeling which between husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. An expressive interest in each other's feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution.

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court.

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack of merit.

SO ORDERED.

Regalado, Romero, Puno and Mendoza, JJ., concur.

Footnotes

1 Thirteenth Division: Minerva Gonzaga-Reyes, J., ponente, Eduardo G. Montenegro and Antonio P. Solano, JJ., concurring.

2 Rollo, pp. 20-24.

3 Ibid.

4 Rollo, p. 34.

5 Exhs. "2", "2-B" and "2-C".

6 Psychological Incapacity, G.T. Veloso, p. 20, cited in The Family Code of the Philippines Annotated, Pineda, 1989 ed., p. 51.

7 Decision, pp. 11-12; Rollo, pp. 30-31.

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.