G.R. No.

113685 June 19, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

ROMERO, J.:

Accused-appellant Theodore Bernal, together with two other persons whose identities and
whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No.
26658-92 of the Regional Trial Court of Davao City, Branch 10, under an information dated July 13,
1

1992, which reads as follows:

That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction
of this Honorable Court, the above-mentioned accused, armed with hand guns, conspiring,
confederating and cooperating together and helping one another, and by means of force,
violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and kidnapped
one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends as Bolton
Isla, this City and was brought, handcuffed and carried away using the PU then fled together
with Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda, Jr. of his liberty
against his will.

CONTRARY TO LAW.

A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The
prosecution presented four witnesses. On the other hand, Theodore Bernal testified for his defense.
2

The materials facts and events as found by the court a quo are:

It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda,
Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them.

After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch
his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was
"Payat." When he said yes, one of them suddenly pulled out a handgun while the other handcuffed
3

him and told him "not to run because they were policemen" and because he had an "atraso" or a
score to settle with them. They then hastily took him away. Racasa immediately went to the house of
Openda, Jr. and informed the latter's mother of the abduction.

The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to
establish that Openda, Jr. had an illicit affair with Bernal's wife Naty and this was the motive behind
the former's kidnapping. Until now, Openda, Jr. is still missing.

On the other hand, the defense asserts that Openda Jr. was a drug-pusher arrested by the police on
August 5, 1991, and hence, was never kidnapped. 4

On December 10, 1993, the court a quo rendered judgment finding Bernal "guilty beyond
5

reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido
Openda Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion
perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental
anguish and moral suffering." 6

Bernal assails the lower court for giving weight and credence to the prosecution witnesses' allegedly
illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt.

We find no compelling reason to overturn the decision of the lower court.

The Court notes that up to this day, neither the victim nor his body has been found. This, however,
does not preclude the Court from ruling on the merits of the case. In Kidnapping, what is important is
to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not
exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid
punishment by the simple expedient of disposing of their victim's bodies.

Article 267 of the Revised Penal Code provides thus:

Art. 267. — Kidnapping and serious illegal detention. —

Any private individual who shall kidnap or detain another, or in any other manner deprive him
of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose
of extorting ransom from the victim or any other person, even if none of the circumstances
above-mentioned were present in the commission of the offense.

For the charge of kidnapping to prosper, the deprivation of the victim's liberty, which is the essential
element of the offense, must be duly proved. In the case at bar, Bernal indisputably acted in
conspiracy with the two other unknown individuals "as shown by their concerted acts evidentiary of a
unity of thought and community of purpose." Proof of conspiracy is perhaps most frequently made
7

by evidence of a chain of circumstances only. The circumstances present in this case sufficiently
8

indicate the participation of Bernal in the disappearance of Openda, Jr.

The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with his two
companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood friend
and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his
two companions and overheard him dispatching one of them to "Tarsing's Store" to check if a certain
person was still there. This person later turned out to be Openda, Jr. He added that after the latter's
presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr., already
handcuffed, passed by the billiard hall with Bernal's companions.

Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who knew
both Bernal and the victim, the former being his neighbor and compadre. He narrated that he and
the victim were drinking at "Tarsing's Store" on that fateful day when Bernal passed by and had a
drink with them. After a few minutes, Bernal decided to leave, after which, two men came to the
store and asked for "Payat." When Openda, Jr. confirmed that he was indeed "Payat," hew was
handcuffed and taken away by the unidentified men.

ISSUE: WHETHER OR NOT THE DECLARATION BY THE VICTIM FOR THE POSSIBLE REASON
FOR THE INCIDENT INVOLVING THE VICTIM IS ADMISSIBLE IN EVIDENCE.

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in
January 1991, Openda, Jr. confided to him that he and Bernal's wife Naty were having an affair. One
time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He advised Naty
"not to do it again because she (was) a married woman. Undoubtedly, his wife's infidelity was ample
9

reason for Bernal to contemplate revenge.

Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator.
Coupled with enough circumstantial evidence of facts from which it may be reasonably inferred that
the accused was the malefactor, motive may be sufficient to support a conviction. Openda, Jr.'s
10

revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence,
pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:

Sec. 38. Declaration against interest. — The declaration made by a person deceased, or
unable to testify, against the interest of the declarant, if the fact asserted in the declaration
was at the time it was made so far contrary to declarant's own interest, that a reasonable
man in his position would not have made the declaration unless he believed it to be true,
may be received in evidence against himself or his successors-in-interest and against third
persons.

With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to
assume that "declaration against interest" has been expanded to include all kinds of interest, that is,
pecuniary, proprietary, moral or even penal. 11

A statement may be admissible when it complies with the following requisites, to wit: "(1) that the
declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant;
(3) that at the time he made said declaration the declarant was aware that the same was contrary to
his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such
declaration to be true."12

Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His
confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty
Bernal was a crime, is admissible in evidence because no sane person will be presumed to tell a
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falsehood to his own detriment. 14

In his brief, Bernal highlights supposed inconsistencies in Sagarino's testimony. He alleges that the
latter could not have seen the actual handcuffing because "Tarsing's Store" could not be seen from
the billiard hall. Sagarino's testimony shows that after Bernal and two others left the billiard hall, the
latter came back with Openda, Jr., already handcuffed.

Q The three of them together?

A Yes, sir.
 Q And what about you, where did you stay?

A I just stayed in the billiard hall.

Q While you stay (sic) in the billiard hall, after a while, what did you see next?

A The two came back.

Q Who were these two whom you said who (sic) came back?

A The companions of Bernal.

Q And what did these two men do?

A They apprehended Jun-jun Openda. 15

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The
lower court correctly rejected this argument by holding that:

But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or
Tarcing store. On the contrary, he says that he had not known who the person was that
Bernal referred to when he requested one of this two companions to go see if that person
was still there at the store, and that he came to know that he was Openda, Jr. only after he
saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified
companions of Bernal with him, on their way out to the main road. 16

If one had a direct view of "Tarsing's Store" from the billiard hall, Bernal would not have requested
his companion to check if Openda, Jr. were still there drinking with Racasa. Another discrepancy
pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on cross-
examination, stated:

Q After Theodore Bernal left you have seen him also returned (sic) with his
child, is that correct?

A Yes, sir, because I was still in the store. 17

On the other hand, Sagarino averred that:

Q When Theodore Bernal left the place, how long (sic) were you able to see
him again?

A Quite a time, sir, because when they left, his two companions came back
and proceeded to Tarcing Store and arrested Jun-jun Openda. When these
two men brought out Jun-jun Openda, fifteen minutes later, Bernal came.

Q Do you know where this Bernal from? (sic)

A He was coming from outside.

Q He has with him his son?

Q Are you sure of that?

A Yes, sir.

Q He was alone?

A Yes, sir. 18

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be
irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility that
when Racasa saw Bernal with his son at the store, the latter could have already brought home his
son before proceeding alone to the billiard hall where he was seem by Segarino. 19

Bernal would like the Court to dismiss Sagarino's testimony by imputing revenge as his motive for
testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five policemen
arrived at Kasilak, Bucana on board a patrol car asking for Openda, Jr., Sagarino, Joseph Mendoza,
Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and staying at
the billiard hall and mahjong house. The policemen departed and went to the places he mentioned.

Q Minutes later do you know what happened?

A They came back.

Q What did you do after they came back?

A I asked these police officers if they found these (sic) persons they were
looking (for) ?

Q What was their answer?

A They answered in the negative.

Q Since the answer is in the negative, what did you do ?

A I asked the police officers why they were looking for these persons.(?)

Q What was the answer of the policemen?

A The police officer said that those people were wanted by them because
accordingly (sic) they were marijuana pushers. 20

Bernal's position is that no abduction or kidnapping ever took place but that an arrest was made by
pursuing policemen. This contention is quite improbable, if not highly preposterous.

The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive
against Bernal. If the latter's allegations were true, then Sagarino should have been arrested by the
police at the time he gave his testimony in court. No such arrest was, however, made.
The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino
sufficient to convict Bernal. The court said that Sagarino's forthright answers to the questions of the
prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or
kidnapping or Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of a
credible witness, but must be credible in itself. This Court once again finds occasion to reiterate the
21

established rule that the findings of fact of a trial court carry great weight and are entitled to respect
on appeal, absent any strong and cogent reason to the contrary, since it is in a better position to
decided the question of credibility of witnesses. 22

We note that after a lapse of a considerable length of time, the victim has yet to resurface.
Considering the circumstances, it is safe to assume that Openda, Jr. is already dead.

Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this
Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua,
as maximum. The maximum penalty must be determined in accordance with rules and provision of
the Revised Penal Code. With respect to the minimum penalty, however, "it is left entirely within the
discretion of the court to fix it anywhere within the range of the penalty next lower without reference
to the periods into which it may be subdivided." Consistent with this ruling, this Court
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imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua,
as maximum.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed decision
dated November 18, 1993, is AFFIRMED in toto.

Costs against accused-appellant Theodore Bernal.

SO ORDERED.