[ G.R. No. 6923. September 12, 1912 ] 23 Phil. 154
[ G.R. No. 6923. September 12, 1912 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. VALENTIN BERNABE, DEFENDANT AND APPELLANT. D E C I S I O N
TORRES, J.:
This case comes to us on appeal from a judgment of conviction rendered by the Honorable Simplicio del Rosario, judge.
About half past 7 o’clock in the morning of July 30, 1910, while the unmarried girl, Ana Arasigan, a minor 14 years of age, was walking along San Sebastian street, on her way from Sampaloc to the millinery store named “Chic Parisien,” situated in this city on the Escolta, where she worked as a seamstress, Valentin Bernabe, who was accompanying her, advised her, on the pretext that it was very late, to take a vehicle in order that she might get to the store quickly. The girl, therefore, hailed a carromata which was going by and immediately got into it; but when the vehicle had gone a short way, Bernabe suddenly entered the carromata also, sat down beside her and immediately ordered the driver to go toward San Miguel and the Ayala Bridge, and, notwithstanding that the girl tried to have the vehicle stopped in order thak she might get out of it, as it was not being driven to the Escolta, the driver, by order of Valentin Bernabe, continued to go on until they arrived at the pueblo of Pasig. On the way the girl made no outcries, through the fear of creating a scene, and her abductor assured her that upon their arrival at Pasig they should be married, to which she replied that she was unwilling. As soon as they arrived at the said pueblo, the defendant had the carromata stopped in front of a house into which he endeavored to make her enter, and as the girl refused to get out of the vehicle Bernabe caught her by the hand and pulled her, compelling her by the use of violence to get out of the carromata, for one of her slippers fell to the ground. At this moment the girl began to cry, on which account, before the abducted party had entered the said house and while she was near the stairs in view of a woman who was looking at them from a window above, a neighbor, who had seen what had occurred, called the policeman Esteban Santos, who conducted both the girl and her abductor to the municipal building of Pasig, and as there were many people in the justice of the peace court, he took the girl thence to the house of a physician where she remained until 7 o’clock that evening, when her mother, Tomasa Garcia, who had been searching for her daughter, came there and took charge of her.
For the foregoing reasons, and in view of the preliminary investigations made at the request of the abducted girl’s mother, an information was filed in the Court of First Instance of Rizal, by the provincial fiscal, charging Valentin Bernabe with the crime of abduction, and, this cause haying been tried, the court, on January 27, 1911, pronounced judgment therein by sentencing the defendant to the penalty of one year eight months and twenty-one days of prision correccional, to the accessory penalties and to payment of the costs, from which judgment the defendant appealed.
The acts aforestated are in fact characteristic of the crime of abduction, provided for and punished by article 446 of the Penal Code, committed with the offended party’s assent and with unchaste designs, inasmuch as the girl, Ana Arasigan, notwithstanding that she stated to her abductor that she was not willing to marry him, from the moment that the accused ordered that the vehicle be driven from Quiapo Square toward the pueblo of Pasig, without having heeded the desires and requests of the offended party that it be stopped so that she might get out, as it was not going toward the store on the Escolta, and being informed of the defendant’s determination, did not protest, made no effort whatever to free herself from her abductor, and did not cry out to the passers by for help, while the vehicle was still being driven through such populous places as Quiapo Square and Echague and San Miguel streets, she giving her assent and keeping silent during so long a trip to Pasig when she could have attracted the notice, on the way, of some policeman or any passer-by, had she wished to beg help against the wrong that might be done her. Therefore it must be held that the girl was taken to Pasig with her assent, notwithstanding that she would not consent to the marriage suggested to her on the way by the accused.
The said article of the code does not expressly require that the circumstance of unchaste designs must be present in the commission of the crime of abduction punished thereby, since, according to the decision of the supreme court of Spain, rendered on November 30,1875, the doctrine was established, in treating of the application and fulfilment of the corresponding article in the Penal Code of Spain, that the purpose of the same was to provide punishment, not for the violence against the party abducted, especially when her assent is assumed, but for the insult to her family and the alarm caused to it by the disappearance of one of its members who, as well on account of her age as because of her sex, is more exposed to seduction and deceit; it being immaterial where the abduction is committed, the Penal Code makes no reference thereto.
On the hypothesis that, according to the rules in practice observed by the courts, abduction with assent must be accompanied by unchaste designs, it is therefore proper to affirm that the abduction under prosecution was committed with unchaste purposes and designs, inasmuch as the defendant, upon his arrival in Pasig with the offended party, instead of going to the court of the justice of the peace and presenting himself to that officer, who, he said, was an acquaintance of his, for the purpose of the celebration of the marriage promised the abducted girl, he conducted her to a house where he said an aunt of his lived, with the intention of lodging there and, undoubtedly, of carrying out his unchaste designs or purposes.
Had the defendant certainly entertained good and honest intentions toward the offended party, notwithstanding that, according to the latter, he was a mere acquaintance of hers, was not her suitor, and had never entered her house, the correct procedure for him would have been, after having obtained the girl’s consent, to have spoken to her mother who, to judge from her testimony, perhaps would not have refused to consent to the marriage of the defendant with her daughter. Were it true that the sole intention of the accused in effecting the abduction was thus to enable him to be married by a duly authorized authority or minister of the gospel, he could very well have found such in this city, where ministers of different religious sects abound, without the need of taking the abducted girl to the pueblo of Pasig with the unlawful intent of placing her in a private house. The unchaste designs, which the accused undoubtedly had, were not manifested on account of the opportune intervention of a policeman as a result of a notice given him by a neighbor who saw the offended party crying and refusing to enter the said house in Pasig in which, had she done so, she would without doubt have been the victim of an unchaste attempt.
The defendant’s guilt as the sole proved perpetrator of the crime under prosecution is very manifest, for notwithstanding his plea of not guilty, still the record of the case furnishes decisive and conclusive proof, which produces full conviction in the mind, that he did commit the crime charged; and the incriminating evidence adduced at the trial was not overcome nor weakened by his unproven exculpatory allegations.
In the commission of the crime, no extenuating or aggravating circumstance is to be considered; wherefore the penalty provided by law must be imposed upon the defendant in the medium degree, as it was in the judgment appealed from.
With respect to the question of competency and jurisdiction, referred to in the first assignment of error alleged against the trial judge by the defendant’s counsel, it must be taken into account that both the judges of the Courts of First Instance of Manila and of Rizal have jurisdiction and are competent to take cognizance of the crime of abduction. It is true that the abduction herein prosecuted was commenced in this city, but it may well be said it was consummated in Pasig, of the Province of Rizal, where the defendant was to carry out or intended to execute the unchaste designs, which his counsel ignored. The question of a judge’s competency or incompetency is the first one that should opportunely be raised, in order to avoid the submission of the case to a judge who, in the opinion of the defense, is incompetent and without jurisdiction to try the same. The fact is that such exception of incompetency was not taken in the first instance and the defendant submitted to the authority of the judge of the court of Rizal during the prosecution of the case, and only alleged it as an error incurred by the lower court in its judgment upon appeal in this second instance, wherefore it is improper because it was not made at the right time.
For the foregoing reasons, whereby the other errors assigned to the judgment appealed from are deemed to have been refuted, and holding that said judgment is in conformity with the law and the merits of the case, it is our opinion that the same should be, as it is hereby, affirmed, with the,costs of this instance against the appellant, who, in the imposition 6f the penalty, shall be allowed credit for one-half of the time of imprisonment suffered by him while awaiting trial.
Arellano, C. J., Mapa and Johnson, JJ., concur.