G.R. No. 121519. October 30, 1996.

* That on or about the month of April 1989, in Kalookan City, Metro Manila,
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE TY and and within the jurisdiction of this Honorable Court, the above-named accused,
CARMEN TY, accused-appellants. being then the owners, proprietors, managers and administrators of Sir John
Clinic and as such said accused had the custody of Arabella Sombong, a minor,
Criminal Law; Kidnapping and Failure to Return a Minor; Elements; The conspiring together and mutually helping one another and with deliberate intent
essential element of the crime is that the offender is entrusted with the custody of to deprive the parents of the child of her custody, did then and there willfully,
the minor but what is actually punishable is not the kidnapping of the minor but unlawfully and feloniously fail to restore the custody of said Arabella Sombong
rather the deliberate failure or refusal of the custodian of the minor to restore to her parents by giving said custody of subject minor to another person without
the latter to his parents or guardians.—Before a conviction for kidnapping and the knowledge and consent of her parents.
failure to return a minor under Article 270 of the Revised Penal Code can be had, Contrary to Law.1
two elements must concur, namely: (a) the offender has been entrusted with the
custody of the minor, and (b) the offender deliberately fails to restore said minor Both accused were arrested, and then arraigned on October 27, 1992 when
to his parents or guardians. The essential element herein is that the offender is they pleaded not guilty to the crime charged.
entrusted with the custody of the minor but what is actually punishable is not the After trial, on May 31, 1995, a decision was rendered by the Regional Trial
kidnapping of the minor, as the title of the article seems to indicate, but rather Court of Kalookan City, Branch 123, the decretal portion of which disposes as
the deliberate failure or refusal of the custodian of the minor to restore the latter follows:
to his parents or guardians. Said failure or refusal, however, must not only be WHEREFORE, this Court finds both accused Spouses Vicente Ty and
deliberate but must also be persistent as to oblige the parents or the guardians of Carmen Ty guilty beyond reasonable doubt of the crime of kidnapping a minor
the child to seek the aid of the courts in order to obtain custody. The key word and failure to return the same as defined and penalized by Article 270 of the
therefore of this element is deliberate. Revised Penal Code and hereby sentences them to suffer imprisonment of
Same; Same; Same; Words and Phrases; Essentially, the word deliberate reclusion perpetua. The accused are hereby ordered to pay the private
as used in Article 270 of the Revised Penal Code must imply something more complainant the sum of P100,000.00 by way of moral damages caused by
than mere negligence — it must be premeditated, obstinate, headstrong, anxiety, by her being emotionally drained coupled by the fact that up to this date
foolishly daring or intentionally and maliciously wrong.—Essentially, the word _______________
deliberate as used in the article must imply something more than mere
negligence; it must be premeditated, obstinate, headstrong, foolishly daring or 1 Rollo, p. 5.
intentionally and maliciously wrong.
747
APPEAL from a decision of the Regional Trial Court of Kalookan City, Br. 123.
   The facts are stated in the opinion of the Court. VOL. 263, OCTOBER 30, 1996 747
_______________ People vs. Ty
she could not determine the whereabouts of her child Arabella Sombong.
* FIRST DIVISION. SO ORDERED.2
746 The accused now interpose this appeal alleging the ensuing assignment of
errors, viz:
746 SUPREME COURT REPORTS ANNOTATED I
People vs. Ty THE TRIAL COURT ERRED IN FINDING THAT APPELLANTS
  The Solicitor General for plaintiff-appellee. ‘DELIBERATELY FAILED TO RESTORE THE CHILD TO HER MOTHER,’
  Feliciano C. Tumale  for accused-appellants. AND CONVICTING THEM UNDER ART. 270 OF THE REVISED PENAL
CODE, AND SENTENCING THEM TO ‘RECLUSION PERPETUA;’
KAPUNAN, J.: II
Vicente Ty and Carmen Ty were charged with the crime of kidnapping and THE TRIAL COURT ERRED IN NOT HOLDING THAT THE CRIME
failure to return a minor in an information filed by 2nd Assistant City Prosecutor COMMITTED, IF ANY, IS THAT DEFINED AND PENALIZED UNDER
of Kalookan City Rosauro J. Silverio, the accusatory portion of which reads: ART. 277 OF THE REVISED PENAL CODE;
 III _______________
THE TRIAL COURT ERRED IN NOT RECOMMENDING EXECUTIVE
CLEMENCY PURSUANT TO PRECEDENT IN ‘PEOPLE vs. GUTIERREZ,’ 4 TSN, April 8, 1994, pp. 4-13.
197 SCRA 569; and 5 Ibid.
IV 6 Exhibit 8.
THE TRIAL COURT ERRED IN AWARDING ‘COMPLAINANT THE SUM 7 See Note 4, supra, pp. 14-17.
OF P100,000.00 BY WAY OF MORAL DAMAGES.’3
749
The relevant antecedents surrounding the case are as follows: VOL. 263, OCTOBER 30, 1996 749
On November 8, 1987, complainant Johanna Sombong brought her sick
People vs. Ty
daughter Arabella, then only seven (7)
Sometime in 1989, two (2) years after Arabella was abandoned by
_______________
complainant, Dr. Fe Mallonga, a dentist at the clinic, suggested during a hospital
staff conference that Arabella be entrusted to a guardian who could give the child
2 Id., at 31.
the love and affection, personal attention and caring she badly needed as she was
3 Id., at 48.
thin and sickly. The suggestion was favorably considered, hence, Dr. Mallonga
748 gave the child to her aunt, Lilibeth Neri.8
748 SUPREME COURT REPORTS ANNOTATED In 1992, complainant came back to claim the daughter she abandoned some
five (5) years back.
People vs. Ty When her pleas allegedly went unanswered, she filed a petition for habeas
months old, for treatment to the Sir John Medical and Maternity Clinic located at corpus against accused-appellants with the Regional Trial Court of Quezon City.
No. 121 First Avenue, Grace Park, Kalookan City which was owned and Said petition was however denied due course and was summarily dismissed
operated by the accused-appellants. Arabella was diagnosed to be suffering without prejudice on the ground of lack of jurisdiction, the alleged detention
bronchitis and diarrhea, thus complainant was advised to confine the child at the having been perpetrated in Kalookan City.
clinic for speedy recovery. About three (3) days later, Arabella was well and was Thereafter, the instant criminal case was filed against accused-appellants.
ready to be discharged but complainant was not around to take her home. A Complainant likewise filed an administrative case for dishonorable conduct
week later, complainant came back but did not have enough money to pay the against accused-appellant Dr. Carmen Ty before the Board of Medicine of the
hospital bill in the amount of P300.00. Complainant likewise confided to Professional Regulation Commission. This case was subsequently dismissed for
accused-appellant, Dr. Carmen Ty that no one would take care of the child at failure to prosecute.
home as she was working. She then inquired about the rate of the nursery and On October 13, 1992, complainant filed a petition for habeas corpus with the
upon being told that the same was P50.00 per day, she decided to leave her child Regional Trial Court of Quezon City, this time against the alleged guardians of
to the care of the clinic nursery. Consequently, Arabella was transferred from the her daughter, namely, Marietta Neri Alviar and Lilibeth Neri. On January 15,
ward to the nursery.4 1993, the trial court rendered a decision granting the petition and ordering the
Thereafter, hospital bills started to mount and accumulate. It was at this time guardians to immediately deliver the person of Cristina Grace Neri to the
that accused-appellant Dr. Ty suggested to the complainant that she hire a “yaya” complainant, the court having found Cristina to be the complainant’s child. On
for P400.00 instead of the daily nursery fee of P50.00. Complainant agreed, appeal to the Court of Appeals, however, said decision was reversed on the
hence, a “yaya” was hired. Arabella was then again transferred from the nursery ground that the guardians were not unlawfully withholding from the complainant
to the extension of the clinic which served as residence for the hospital staff.5 the rightful custody of Cristina after finding that Cristina and complainant’s
From then on, nothing was heard of the complainant. She neither visited her daughter are not one
child nor called to inquire about her whereabouts. Her estranged husband came _______________
to the clinic once but did not get the child. Efforts to get in touch with the
complainant were unsuccessful as she left no address or telephone number where 8 Id., at 16, 19-21.
she can be reached. This development prompted Dr. Ty to notify the barangay
captain of the child’s abandonment.6 Eventually, the hospital staff took turns in 750
taking care of Arabella.7 750 SUPREME COURT REPORTS ANNOTATED
 People vs. Ty Significantly, Justice Lourdes K. Tayao-Jaguros, herself a mother and the
and the same person. On January 31, 1996, this Court in Sombong v. Court of ponente of the herein assailed decision, set the case for hearing on August 30,
Appeals9  affirmed the Court of Appeals’ decision. 1993 primarily for the purpose of observing petitioner’s demeanor towards the
In this appeal, accused-appellants would want us to take a second look and minor Cristina. She made the following personal but relevant manifestation:
resolve the issue of whether or not they are guilty of kidnapping and failure to The undersigned ponente as a mother herself of four children, wanted
return a minor. Accused-appellants of course contend that they are not guilty and to see how petitioner as an alleged mother of a missing child supposedly
the Solicitor General agrees. In its Manifestation and Motion in lieu of in the person of Cristina Neri would react on seeing again her long lost
Appellee’s Brief, the Office of the Solicitor General recommends their acquittal. child. The petitioner appeared in the scheduled hearing of this case late,
We agree. and she walked inside the courtroom looking for a seat without even
As we have mentioned above, this Court in Sombong v. Court of stopping at her alleged daughter’s seat; without even casting a glance on
Appeals10 affirmed the decision of the Court of Appeals reversing the trial court’s said child, and without even that tearful embrace which characterizes the
ruling that complainant has rightful custody over the child, Cristina Grace Neri, reunion of a loving mother with her missing dear child. Throughout the
the latter not being identical with complainant’s daughter, Arabella. The Court proceedings, the undersigned ponente noticed no signs of endearment and
discoursed, thusly: affection expected of a mother who had been deprived of the embrace of
Petitioner does not have the right of custody over the minor Cristina because, her little child for many years. The conclusion or finding of undersigned
by the evidence disclosed before the court a quo, Cristina has not been shown to ponente as a mother, herself, that petitioner-appellee is not the mother of
be petitioner’s daughter, Arabella. The evidence adduced before the trial court Cristina Neri has been given support by aforestated observation x x x.
does not warrant the conclusion that Arabella is the same person as Cristina. x x x
x x x Since we hold that petitioner has not been established by evidence to be
In the instant case, the testimonial and circumstantial proof establishes the entitled to the custody of the minor Cristina on account of mistaken identity, it
individual and separate existence of petitioner’s child, Arabella, from that of cannot be said that private respondents are unlawfully withholding from
private respondents’ foster child, Cristina. petitioner the rightful custody over Cristina. At this juncture, we need not inquire
We note, among others, that Dr. Trono, who is petitioner’s own witness, into the validity of the mode by which private respondents acquired custodial
testified in court that, together with Arabella, there were several babies left in the rights over the minor, Cristina.
clinic and so she could not be certain whether it was Arabella or some other baby x x x
that was given to private respondents. Petitioner’s own evidence shows that, after 752
the confinement of Arabella in the clinic in 1987, she saw her daughter again
only in 1989 when she visited the clinic. This corroborates the 752 SUPREME COURT REPORTS ANNOTATED
_______________ People vs. Ty
Under the facts and ruling in Sombong, as well as the evidence adduced in
9 G.R. No. 111876, January 31, 1996. this case accused-appellants must perforce be acquitted of the crime charged,
10 Ibid. there being no reason to hold them liable for failing to return one Cristina Grace
Neri, a child not conclusively shown and established to be complainant’s
751 daughter, Arabella.
The foregoing notwithstanding, even if we were to consider Cristina Grace
VOL. 263, OCTOBER 30, 1996 751 Neri and Arabella Sombong as one and the same person, still, the instant
People vs. Ty criminal case against the accused-appellants must fall.
testimony of petitioner’s own witness, Dra. Ty, that Arabella was physically Before a conviction for kidnapping and failure to return a minor under
confined in the clinic from November, 1987 to April, 1989. This testimony Article 270 of the Revised Penal Code can be had, two elements must concur,
tallies with her assertion in her counter-affidavit to the effect that Arabella was in namely: (a) the offender has been entrusted with the custody of the minor, and
the custody of the hospital until April, 1989. All this, when juxtaposed with the (b) the offender deliberately fails to restore said minor to his parents or
unwavering declaration of private respondents that they obtained custody of guardians. The essential element herein is that the offender is entrusted with the
Cristina in April, 1988 and had her baptized at the Good Samaritan Church on custody of the minor but what is actually punishable is not the kidnapping of the
April 30, 1988, leads to the conclusion that Cristina is not Arabella. minor, as the title of the article seems to indicate, but rather the deliberate failure
or refusal of the custodian of the minor to restore the latter to his parents or As an Adjective
guardians.11 Said failure or refusal, however, must not only be deliberate but The word, used adjectively, implies action after thought and reflection, and
must also be persistent as to oblige the parents or the guardians of the child to relates to the end proposed; indicates a purpose formed in a mind capable of
seek the aid of the courts in order to obtain custody.12 The key word therefore of conceiving a purpose; and is based upon an intention accompanied by such
this element is deliberate and Black’s Law Dictionary defines deliberate as: circumstances as evidence a mind fully conscious of its own purpose and design.
Deliberate, adj. Well advised; carefully considered; not sudden or rash; It has been defined as meaning carefully considered; circumspect; entered upon
circumspect; slow in determining. Willful rather than merely intentional. after deliberation and with fixed purpose, formed after careful considera-
Formed, arrived at, or determined upon as a result of careful thought and _______________
weighing of considerations, as a deliberate judgment or plan. Carried on coolly
and steadily, especially according to a preconceived design; given to weighing 13 Black, Fifth Edition, 1979, p. 384.
facts and arguments with a view to a choice or decision; careful in considering
the 754
_______________
754 SUPREME COURT REPORTS ANNOTATED
11 Section 5 of Republic Act No. 18 amending Article 270 of the Revised People vs. Ty
Penal Code. tion, and fully or carefully considering the nature or consequences of an act or
12 Cuello Calon II, p. 701 cited in Gregorio, Fundamentals of Criminal Law measure; maturely reflected; not sudden or rash, carefully considering the
Review, 1988, 8th Edition, p. 496. probable consequences of a step; premeditated; slow in determining; weighing
facts and arguments with a view to a choice of decision; well-advised.
753 Under some circumstances, it has been held synonymous with, or equivalent
to, ‘intentional,’ ‘premeditated,’ and ‘willful.’
VOL. 263, OCTOBER 30, 1996 753 Under other circumstances, however, it has been compared with or
People vs. Ty distinguished from, ‘premeditated,’ ‘sudden,’ and ‘willful.’ 14
consequences of a step; slow in action; unhurried; characterized by reflection;
dispassionate; not rash. People v. Thomas, 25 Cal. 2d 880, 156 P.2d 7, 17, 18. Essentially, the word deliberate as used in the article must imply something
By the use of this word, in describing a crime, the idea is conveyed that the more than mere negligence; it must be premeditated, obstinate, headstrong,
perpetrator weighs the motives for the act and its consequences, the nature of the foolishly daring or intentionally and maliciously wrong.
crime, or other things connected with his intentions, with a view to a decision In the case at bar, it is evident that there was no deliberate refusal or failure
thereon; that he carefully considers all these, and that the act is not suddenly on the part of the accused-appellants to restore the custody of the complainant’s
committed. It implies that the perpetrator must be capable of the exercise of such child to her. When the accused-appellants learned that complainant wanted her
mental powers as are called into use by deliberation and the consideration and daughter back after five (5) long years of apparent wanton neglect, they tried
weighing of motives and consequences.13 their best to help herein complainant find the child as the latter was no longer
under the clinic’s care. Accused-appellant Dr. Ty did not have the address of
Similarly, the word deliberate is defined in Corpus Juris Secundum as: Arabella’s guardians but as soon as she obtained it from Dr. Fe Mallonga who
DELIBERATE. was already working abroad, she personally went to the guardians’ residence and
As a Verb informed them that herein complainant wanted her daughter back. Dr. Ty testi-
The word is derived from two Latin words which mean literally ‘concerning’ fied as follows:
and ‘to weigh’; it implies the possession of a mind capable of conceiving a Q: Now, since you said a while ago that when you placed the child
purpose to act, and the exercise of such mental powers as are called into use by under the (sic) guardianship, you are (sic) aware that the natural
the consideration and weighing of the motives and the consequences of the act; mother will get back the child, why did you not return the minor to
and has been defined as meaning to consider, reflect, take counsel, or to weigh the natural mother?
the arguments for and against a proposed course of action; to consider and A: During that time mam, the resident physician who will (sic)
examine the reasons for and against, consider maturely, ponder, reflect upon, or discharged the baby was not present because she was abroad.
weigh in the mind; to reflect, with a view to make a choice; to weigh the motives Q: But then madam witness, are you aware where the child was and to
for an act and its consequences, with a view to a decision thereon. whom it was given?
 _______________ 15 TSN, August 17, 1994, pp. 18-21.

14 26 C.J.S. 689-690. 756

756 SUPREME COURT REPORTS ANNOTATED
755
People vs. Ty
VOL. 263, OCTOBER 30, 1996 755 the parties but since a case was yet to be filed, the custody of the minor remained
with the guardians. This fact is evident from the following testimony, thus:
People vs. Ty Q: You testified on cross-examination that you located the whereabouts
A: The exact address was not given to me, mam, before the resident of the child sometime later, what steps did you take up (sic) after
physician left for abroad so, I asked the PAO to give me one month you found the child?
to have (sic) a long distance call to this doctor and asked her for the A: I explained to the guardian that the verbal agreement between the
whereabout(s) of the child. supposed to be guardianship was only a plain guardianship and not
Q: And where you granted the thirty-day period by the Officer of the as an adoption, sir.
PAO? Q: You said you went to the NBI after you found the child, why did you
A: Yes, mam. go to the NBI?
Q: What happened if any during that thirty-day period? A: Because the guardian are (sic) not willing to surrender the child to
A: I was able to talk to Fe Mallonga in Bahrain and she told me the the PAO’s Office (sic), that is why I asked their help, sir.16
exact address of the guardian, mam. x x x
Q: Were (sic) you informed (of) the exact address of the guardian, did Q: Now, when you informed the present custodian that the natural
you informed (sic) the PAO? mother is now claiming the child, why were you not able to get the
A: Yes, mam. minor?
ATTY. WARD: A: I was not able to get the minor so I asked the help of the NBI to have
Q: Then, what happened next, madam witness? the child surrender (sic), mam.
A: I was the one who went to the address to be sure that the child was ATTY. WARD:
really there, mam. Q: And what happened when you get (sic) the assistance of the NBI?
Q: And did you see the child? A: They were the ones who asked the guardian to surrender the child,
A: Yes, mam. mam.
Q: What did you do with the child? Q: You stated a while ago that there was no written agreement between
A: I just tell (sic) the child, ‘Ay ang laki mo na pala,’ I just told the you or your hospital and the guardian of the minor, is that correct?
child like that and I’ve (sic) talked also to the guardian during that A:  Yes, mam.
time, mam. Q: For what reason if you know, why (did) the guardian did (sic) not
Q: And what did you tell the guardian? follow you or obey you when you want (sic) to get back the child?
A: I told the guardian that the rightful mother was claiming for the child A: I don’t know of any reason, mam.17
and that we should talked (sic) with each other at the PAO for the
decision, mam. The efforts taken by the accused-appellants to help the complainant in
Q: Did the guardian bring the child to the PAO’s Office (sic)? finding the child clearly negate the finding that there was a deliberate refusal or
A: No mam, she did not appear. failure on their part to
Q: Why? _______________
A: They told me first that they are (sic) going to contract a lawyer but
for (sic) several days, she did not respond anymore, mam.15 16 Id., at 37.
17 Id., at 27-29.
When the guardians refused to return the child, accused-appellant Dr. Ty
sought the assistance of the National Bureau of Investigation (NBI) which 757
conducted a conference among VOL. 263, OCTOBER 30, 1996 757
_______________
 People vs. Ty Judgment reversed and set aside. Accused-appellants acquitted.
restore the child to her mother. Evidence is simply wanting in this regard. Notes.—Even if the purpose of the kidnapping alleged by the defense be
It is worthy to note that accused-appellants’ conduct from the moment the accepted — that is, to compel payment of the hospitalization expenses of the
child was left in the clinic’s care up to the time the child was given up for brother of one of the accused — under Article 267 of the Revised Penal Code, as
guardianship was motivated by nothing more than an earnest desire to help the amended by Republic Act No. 1084, the offense is still kidnapping for ransom.
child and a high regard for her welfare and well-being. (People vs. Akiran, 18 SCRA 239 [1966])
WHEREFORE, premises considered, the decision appealed from is hereby Intention to sell the minor for profit is not an element of kidnapping and
REVERSED and SET ASIDE. Accordingly, accused-appellants VICENTE TY failure to return a minor under Art. 270 of the Revised Penal Code. ( People vs.
and CARMEN TY are hereby ACQUITTED of the crime charged and are Bondoc, 232 SCRA 478 [1994])
ordered to be released immediately unless they are being detained for other For kidnapping to exist, there must be indubitable proof that the actual intent
lawful causes. Costs de oficio. of the malefactor was to deprive the offended party of her liberty. (People vs.
SO ORDERED. Godoy, 250 SCRA 676 [1995])
Padilla (Chairman), Bellosillo, Vitug  and Hermosisima, Jr., JJ., concur. ——o0o——