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[G.R. No. 7150. October 16, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. JACINTO BORROMEO ET AL., Defendants-Appellants.

M. Legaspi Florendo and Macario Adriatico for Appellants.

Attorney-General Villamor for Appellee.


1. ABDUCTION. — The two essential elements in the crime of abduction as defined and punished by article 445 of the Penal Code are (1) a taking against the will of the woman and (2) with lewd designs.

2. ID.; CRUEL AND UNUSUAL PUNISHMENTS. — The duration of penalties is vested in the legislative department and requires a large measure of discretion. The courts will never declare a penalty fixed by the legislature to be "cruel and unusual" because of its severity, unless it is so out of proportion to the crime as to "shock public sentiment."cralaw virtua1aw library

3. ID.; ID. — Abduction as defined in the Penal Code has always been recognized by civilized nations as deserving of the severest penalties. It cannot be said, therefore, that the prescribed penalty in this case is cruel and unusual.



The complaint is as follows:jgc:chanrobles.com.ph

"That the undersigned charges Jacinto Borromeo, Raymundo Ramos, Marcelino Polintan, Jose Buenaventura, and Generoso Polintan with the crime of rapto, committed as follows:jgc:chanrobles.com.ph

"That on or about the tenth day of September, 1910, in the city of Manila, Philippine Islands, the said Jacinto Borromeo, Raymundo Ramos, Marcelino Polintan, Jose Buenaventura, and Generoso Polintan, conspiring together, voluntarily, illegally, and criminally, by means of force, violence, and intimidation, and with unchaste designs, abducted one Severina Gamboa against her will.

"That in the commission of this crime the aggravating circumstance of nocturnidad concurred."cralaw virtua1aw library

Jacinto Borromeo was sentenced to twenty years of reclusion temporal, to endow the offended party, Severina Gamboa, in the sum of P1,000, and to recognize the off-spring, if there should be any. Generoso Polintan was sentenced to twenty years, and Raymundo Ramos and Jose Buenaventura each to seventeen years four months and one day of reclusion temporal. These defendants were also sentenced to the corresponding accessory penalties and to the payment of the costs. All appealed. Marcelino Polintan was acquitted. Borromeo, Ramos, and Buenaventura were tried before the Honorable Charles S. Lobingier, and Generoso Polintan before the Honorable Herbert D. Gale. As the facts in both appeals are the same, they will be considered together.

In the month of September, 1910, Severina Gamboa, an unmarried girl, 14 years of age, was living with her parents at No. 19 Calle Marina, Pasay, and was employed as a dancing girl in a dance hall at Pasig, where she was in the habit of going each night in company with her mother. Jacinto Borromeo met this young girl in the dance hall and became enamored with her personal beauty and charms. About 10 o’clock on the night of September 10, he called together Raymundo Ramos, Jose Buenaventura, and Generoso and Marcelino Polintan, and they rented a four-passenger automobile and two calesas in which they went from Manila to Pasig on that night. Borromeo, Buenaventura, and Generoso Polintan occupied the automobile and Ramos and Marcelino Polintan each occupied a calesa. Upon arriving in Pasig they went to the dance hall where they found Severina Gamboa and her mother. They waited there until the hall was closed at about 12 o’clock that night. When Severina and her mother came out of the dance hall Borromeo and his companions invited them to return to Manila in the automobile. both the mother and the daughter decline to accept this invitation and proceeded to the station in Pasig for the purpose of coming to Manila in a street car. Borromeo and his companions then returned to Manila. On the return trip one of the calesas lost a tire and was put out of commission. The other calesa and the automobile came on the Calle Bagumbayan, and there waited for the arrival of the Pasig street car. When this car arrived it was about 1 o’clock and the cars had stopped running to Pasay. When the two women arrived they not being able to proceed to their home in a street car, called a calesa which was passing back and forth at that point and informed the driver, one Tomas de Jesus, that they desired to hire his vehicle for the purpose of taking them to their home in Pasay, they believing that the calesa driven by De Jesus was a street or public vehicle. This calesa, as well as the one which was put out of commission, was hired from a livery stable by Borromeo and his companions. After the two women had embarked in the calesa they proceeded on their way to Pasay. After going a short distance they noticed an automobile in front of them but they paid no attention to it until their cochero refused to continue on in the direction indicated by them. The cochero insisted on following the automobile, he being under instructions to follow the automobile. The automobile and the calesa proceeded in this manner until they arrived at a lonely spot on Calle Vito Cruz, near a swamp and bridge in that vicinity. At this point the automobile had stopped and was awaiting the arrival of the calesa. When the latter arrived to within a very short distance of the automobile, the cochero stopped it and the four appellants alighted from the automobile and coming up to the calesa seized the two women. Jacinto Borromeo, Generoso Polintan, and one other seized the girl, and took her from the calesa and placed her in the automobile. The other appellant seized the mother and prevented her from going to the rescue of her daughter. In the ensuing struggle, the mother’s clothes were torn and she was finally thrown into the ditch or swamp adjacent to the road. The four appellants, with the girl, then left the spot in the automobile. As the girl was being carried away from her mother in this manner, both she and her mother began screaming and crying for help. The mother, after getting out of the ditch, started to pursue the automobile on foot, but not being able to overtake it, was compelled to abandon the pursuit. The screams of the two women as they were being separated were heard by one Ellis who was sleeping on the veranda of his house near that place. After the automobile had gone a short distance, it passed the witness Algard, who saw the girl struggling and heard her suppressed cries. Borromeo was at that moment attempting to prevent her from screaming by placing his hands over her mouth. This witness also saw the mother pursuing the machine. The four appellants took the girl to the house of the appellant Ramos in Calle Balic-balic, where she remained until the afternoon of the eleventh. The mother proceeded on foot to her home in Pasay, changed her clothes, and accompanied by her husband and a neighbor immediately returned to Manila to search for her daughter and the appellants. They went to Calle Azcarraga because the mother remembered having heard some of the appellants say that they were living on the street. Very early that morning, the mother and her companions encountered on that street Marcelino Polintan, Jose Buenaventura, and Generoso Polintan in company with two other men. They seized and held Buenaventura and Marcelino Polintan, called a police officer, and had them arrested. Generoso Polintan and the other two men made their escape. Buenaventura and Marcelino Polintan were conducted to the Meisic police station and after the police officers had heard the account of the abduction of the girl Severina, they immediately took steps to find her, and finally did succeed in locating her in the house of Raymundo Ramos in company with Jacinto Borromeo and Raymundo Ramos. Early on the morning of September 11, Generoso Polintan returned to the house of Ramos in Balic-balic and advised Borromeo and Ramos of the capture of his companions and that he was going to make his escape. Generoso did in fact make his escape and was not captured until some six months later, when he was finally arrested in the Province of Zambales and brought back to Manila. On being advised by Generoso Polintan that Buenaventura and Marcelino Polintan had been arrested, Borromeo, with the assistance of Ramos, attempted to marry Severina, and for this purpose they called to the house of Ramos two Protestant ministers, Ricardo Luzada and Nicolas Zamora, and Santiago Castalian [Gatchalian], a notary public. But the marriage did not actually take place. The foregoing facts are not only established by the direct and positive testimony of credible witnesses, but they are practically admitted by the appellants. Severina, the offended party, testified that on her arrival at the house of Ramos about 2 o’clock a. m. on that night, she was placed in a room with Borromeo where they remained together until after daylight; and that during this time Borromeo had carnal relations with her three times. Two members of the Manila police force further testified that the defendant Borromeo had admitted in their presence that he had sexual intercourse with the girl during the night.

The appellants in this instance insist (1) that the taking of the girl to the house of Ramos on that night was simply carrying out a prearranged agreement between the offended party and Borromeo; (2) that there were no dishonest designs for the reason that it was the intention of Borromeo and Severina to marry; and (3) that there were no carnal relations between Borromeo and the offended party in the house of Ramos.

Article 445 of the Penal Code reads:jgc:chanrobles.com.ph

"The abduction of a woman against her will and with lewd designs shall be punished by reclusion temporal."cralaw virtua1aw library

The essential elements in this crime are two; namely, (1) that the abduction must have been against the will of the woman; and (2) that the abduction must have been for lewd or unchaste designs. If either is lacking, a conviction under the above-quoted article can not stand. One is as essential as the other. It takes both to constitute the crime. If unchaste designs are lacking, the taking of the woman against her will might constitute some other crime, but never a violation of this article.

That the appellants took the offended girl to the house of Ramos against her will and against the will of her mother by means of actual force, there cannot be the slightest doubt. The young girl was forcibly separated from her mother, her mother thrown into the ditch or swamp, and she was taken away in the automobile. She attempted to continue her screaming and cries for help, but was prevented from doing so by Borromeo. These facts exclude the pretense of the appellants that the girl was taken for the purpose of marrying Borromeo. Had the girl agreed to go with the appellants and marry Borromeo, her conduct would have been quite different. And again, Borromeo had said nothing, either to the mother or to her daughter, about marriage. The appellants had no other object than that of unchaste designs in taking the girl, and these unchaste designs were carried out. Borromeo had illicit relations with the girl in the house of Ramos. He admitted this fact to two police officers. All that was done and said on the 11th with reference to marrying the girl was an afterthought. This feeble and pretended attempt to marry the girl was made after Borromeo and Ramos had been notified of the capture of their companions and for the sole purpose of escaping criminal responsibility. Borromeo never intended to carry out this feeble attempt of marrying the girl. In the commission of this crime there was present the aggravating circumstance of nocturnity. It is clear that the appellants selected the nighttime for the purpose of committing this crime. They knew that they could not accomplish their designs, if at all, in the daytime, not by any means so easily. There were present no extenuating circumstances.

Finally, counsel for the accused pleads that the sentence imposed by the lower court is cruel and unusual and bases his assertion upon a comparison of the crime of which these appellants have been convicted with the crime of illegal detention when committed under pretense of the exercise of public authority, when serious physical injuries are inflicted upon the person detained, or threats made against his life (ar. 482, Penal Code), the penalty being the same for both crimes; i. e., reclusion temporal (twelve years and one day to twenty years).

The prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon safeguard against governmental oppression of the subject, which made its first appearance in the reign of William and Mary of England in "An Act declaring the rights and liberties of the subject, and settling the succession of the crown," passed in the year 1689. It has been incorporated into the Constitution of the United States and into most of the constitutions of the various States in substantially the same language as that used in the original statute. The exact language of the Constitution of the United States is used in the Philippine Bill. It follows that punishments provided in legislation enacted by the former sovereign of these Islands must be considered according to the standard obtaining in the United States in order to determine whether they are cruel and unusual.

According to some authorities, the test to be applied in determining whether a penalty is in violation of this constitutional provision is not the proportion between the offense and the punishment, but the character of the punishment and its mode of infliction, and that "the legislative discretion in determining the severity of the punishment for crime is not to be interfered with by the courts, so long as all forms of torture are avoid." Another group of authorities, however, hold that this constitutional provisions is broad enough to confer upon the courts the power to review legislative discretion concerning the adequacy of the punishment "in very extreme cases; where the punishment proposed is so severe and out of proportion of the offense as to shock public sentiment and violate the judgment of reasonable people." The authorities pro and con are discussed in Weems v. United States (217 U. S., 349, 54 L. ed., 793), where the court sustained the latter view. The supreme court of New York, in treating of this question in People ex rel. Kemmler v. Durston (119 N. Y., 569), was undecided whether the provision "was intended as an admonition to the legislature and the judiciary, or as a restraint upon the legislature in inflicting punishment for criminal offenses," stating further that in England the provision "was not intended as a check upon the powers of Parliament to prescribe such punishment for crime as it considered proper." But the courts of some of the States have declared unconstitutional statutory punishments which, although not cruel and unusual as to their character and mode of the infliction, were considered so by reason of their severity in proportion to the offense. In Ely v. Thompson (3 A. K. March (Reu.) , 70), where a person of color was to be punished by corporal punishment for raising "his or her hand in opposition to any person not being a negro . . .," even if in self-defense, the court declared such a punishment to be cruel and unusual within the meaning of the constitutional provision. In Illinois, where the provision reads, "all penalties shall be proportioned to the nature of the offense," the supreme court of that State held (Railroad Co. v. People, Ex rel. Koerner, 67 Ill., 11, 27, 16 Am. Rep., 599, 611), that a forfeiture of a franchise for unjust discrimination in railroad freights for a first offense, amounting, as it would in some instances, to millions of dollars, was in violation of that cause of the state constitution. The supreme court of Michigan, in Robinson v. Miner and Haug (68 Mich. 549, 563), held that a law which provided for forfeiture of business in addition to fine and imprisonment for violations of the liquor law was cruel and unusual.

In the following cases the question was discussed, but the penalties objected to upheld, the courts, however, insisting the it is possible for the legislature to violate the provision in question by providing a penalty out of all proportion to the offense.

In People v. Oppenheimer (156 Cal., 733), the court said that it is not within the province of the judiciary to declare a penalty fixed by the legislature for a particular crime to be too severe —

". . . unless perhaps it be so disproportionate to the offense for which it is inflicted as to meet the disapproval and condemnation of the conscience and reason to men generally, ’as to shock the moral sense of the people.’"

In Thomas v. Kinkead (55 Ark., 502), the court said:jgc:chanrobles.com.ph

"But the law-making power itself could not, under the constitution, inflict the death penalty as a punishment for a simple misdemeanor."cralaw virtua1aw library

In State v. Becker (3 S. D., 29), the court said:jgc:chanrobles.com.ph

"It is a very noticeable fact that this question has seldom been presented to the courts and we take this fact to signify that it has been the common understanding of all that courts would not be justified in interfering with the discretion and judgment of the legislature, except in very extreme cases, where the punishment proposed is so severe and out of proportion to the offense as to shock public sentiment and violate the judgment of reasonable people."cralaw virtua1aw library

Even in Massachusetts, where the provision reads: "No magistrate or court of law shall . . . inflict cruel or unusual punishments," it was said in McDonald v. Commonwealth (173 Mass., 322):jgc:chanrobles.com.ph

"It is for the legislature to determine what acts shall be regarded as criminal, and how they shall be punished. It would be goping too far to say that their power is unlimited in these respects. Ordinarily, there terms ’cruel and unusual’ imply something inhuman and barbarous in the nature of the punishment. (In re Kemmler, 136 U. S., 436.) But it is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment."cralaw virtua1aw library

On the kindred subject of excessive fines, the supreme court of Vermont, in State v. Constantino (76 Vt., 192), said:jgc:chanrobles.com.ph

"But the constitutional provision that fines shall be proportioned to the offenses is addressed to the Legislature as well as to the courts. The Legislature has the right to prescribe fines, and especially for the punishment of offenses that it creates, and to its judgment and discretionin this behalf a wide latitude must necessarily be accorded. Fines are to be fixed with reference to the object they are designed to accomplish. The degree of criminally of the offense, the illegality or impolicy of the act intended to be punished or prevented, are elements that must be considered. The peace of the State and the welfare of the community often require the Legislature to create new offenses and to prescribe fines their punishment, and to alter fines already prescribed. In performing this duty the Legislature has no guide but its judgment and discretion and the wisdom of experience, and the courts cannot properly question its action, unless the minimum fine is so large as to be clearly out of all just proportion to the offense."cralaw virtua1aw library

On this same subject, in McMahon v. State (70 Neb., 722), the court said:jgc:chanrobles.com.ph

"The fixing of penalties for the violation of statutes is primarily a legislative function, and the courts hesitate to interfere, unless the fine provided for is so far excessive as to shock the sense of mankind."cralaw virtua1aw library

In State v. Rodman (58 Minn., 393), the court says:jgc:chanrobles.com.ph

"While the fines are certainly large, yet we cannot say that they are excessive, in a constitutional sense. A large discretion is necessarily vested in the legislature to impose penalties sufficient to prevent the commission of an offense and it would have to be an extreme case to warrant the courts in holding that the constitutional limit had been transcended."cralaw virtua1aw library

In view of these authorities, and the fact that the legislature invariably endeavors to apportion a penalty commensurate with the offense, and that course, in the exercise of such discretion as is conferred upon them in fixing penalties within minimum and maximum degrees, adhere to the same rule, it seems to us that to assert, when the question assumes the dignity of a constitutional inquiry, that courts should not concern themselves with the relative magnitude of the crime and the penalty, is wrong, both in logic and in fact. A contrary view leads to the astounding result that it is impossible to impose a cruel and unusual punishment so long as none of the old and discarded modes of punishment are used; and that there is no restriction upon the power of the legislative department, for example, to prescribe the death penalty by hanging for a misdemeanor, and that the courts would be compelled to impose the penalty. Yet such a punishment for such a crime would be considered extremely cruel and unusual by all right-minded people. But all courts uniformly express great reluctance to sit in judgment upon the legislative department in a matter where such a large measure of discretion must be exercised, and it appears that in very few cases has this ever been done.

In the case at bar we assume that counsel makes no objection to the mode of punishment. He does, however, attempt to show that the penalty is out of proportion to the crime by comparing the latter with the crime of illegal detention and the infliction of serious physical injuries. He argues that the physical anguish of a woman abducted against her will with unchaste designs cannot compare to the suffering of a person upon whom serious physical injuries are inflicted, or threats made against his life, while illegally detained. There is one common element in these two crimes, the taking without consent. But the element of intent is quite different in the two crimes. The intent in illegal detention may be revenge, greed for gain, or caprice; but in abduction the intent is "with lewd designs." This qualification can only mean one thing: a degeneracy on the part of the criminal which strikes at the very foundation of society and calls for severe chastisement, not only to prevent a repetition of the offense on his part, but to serve as a deterrent on others who may also be inclined to lewdness and license.

Pain, physical or mental, should be measured by its permanent effect upon the sufferer. In the case of severe physical injuries, temporary physical pain may be extreme and yet the person may fully recover, after which his injuries become nothing more than a memory, a topic for conversation. The former sufferer may even experience some degree of pride and satisfaction in recalling how he conducted himself at the time they were received. But in the case of a young, innocent girl, ruthlessly torn from the side of her mother in the dead of night, overpowered by superior strength, her cries for help stifled, and rushed to an unknown house and there defiled, there is something more to be endured by her than mere physical pain, although that may not be inconsiderable. When such an occurrence ceases to be a reality to her and becomes a memory, if it ever does, she may derive no comfort, no pride, no satisfaction by recalling it. Shame, misery, mortification, are her lot. Nor can she, if she would, banish the dreadful occurrence from her thoughts. The story has spread like wildfire. Pitying looks, pointing fingers, and morbid stares remind her everywhere she goes of her terrible experience. Temporary physical disability resulting from injuries produce, as a rule, no lasting effects upon the sufferer. In the case of the girl, the effects are permanent and far-reaching. Time may lessen but can never annul her sufferings. Nor is she the only sufferer. Her whole family, to a lesser degree, shares in her humiliation.

There are only two modes of punishment in this country by which such a criminal can be effectually prevented from committing a second similar offense; i. e., by imprisonment or death by hanging. To allow the culprit to go free with a fine or civil disqualifications would be no security whatever to society. The legislative department has decided that imprisonment is adequate for the offense, but that, the crime being of a very aggravated character, in order to attain the twofold end of criminal legislation, i. e., the prevention of a repetition of the offense by the criminal and a warning to others similarly inclined, the imprisonment must extend over a long term of years. Again, it is unnecessary to resort to unusual expedients in order to arrive at a decision as to whether the penalty in this case is too excessive. The crime committed by these appellants has existed since time out of mind and has been dealt with by all nations with the severest penalties, and people have often been so intolerant of the crime that they have been unwilling to await the slow action of the law, but have taken the matter in hand themselves and inflicted death by burning at the stake, hanging, or any other convenient method.

In view of all these considerations, we are not at all disposed to declare that the penalty fixed by law is cruel and unusual.

Jacinto Borromeo was the moving spirit in the commission of this crime. It was committed for the sole purpose of giving him an opportunity to satisfy his lust and he was the only one who had illicit relations with the girl. The court very properly imposed upon him the maximum of the maximum degree. Under the circumstances, we think the judgment condemning Generoso Polintan to twenty years should be modified by reducing the penalty to seventeen years and four months. With this modification, the judgments appealed from are affirmed, with costs.

Arellano, C.J., Torres, Mapa, Johnson, and Carson, JJ., concur.

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