1. ABDUCTION WITH CONSENT; LEWD DESIGNS. — In the complaint the defendant was charged with the crime of abduction with violence and lewd designs and against the will of the offended party, but it was proven at the trial that the abduction was committed with lewd designs and with the consent of the abducted girl. Therefore it is improper to convict the defendant under the first classification; he should be sentenced under the second, which is less serious, for the girl were caught by the latter’s grandfather in the act of lying with each other, but in the house of the house of the barrio lieutenant, where they were taken by the said grandfather for the purpose of lodging a complaint.

2. ID.; ID.; — The abducted girl being morally and physically dominated by her abductor, who several hours before succeeded in lying with her, it is to be believed that in the beginning he intimidated her and used force in order to lie with her for the first time in her home; but on her being removed from the barrio lieutenant’s house several hours afterwards, it is not shown that she resisted and firmly opposed the action of her abductor for, had she done so, the noise would have awakened the barrio lieutenant and his family. It is therefore likely that, if in the beginning some compulsion was exercised over the girl, she finally voluntarily followed her abductor and consented to be taken by him from the said lieutenant’s house to another where her abductor afterwards abandoned her. For this reason the crime committed by the defendant should be classified as abduction with the consent of the offended party and with lewd designs.

3. ID.; ID.; AGGRAVATING CIRCUMSTANCES. — It must be held that the commission of this crime was attended by the aggravating circumstances that the defendant availed himself of his official position as municipal policeman (for he was wearing the police uniform at the time), and of the silence and darkness of the night for the purpose of taking away the girl with impunity — a thing which undoubtedly he could not have done in the daytime and in sight of people.

This cause was instituted by a complaint filed by the fiscal in the Court of First Instance of Pampanga, charging Eustaquio Yumul with the crime of abduction with violence, and on November 27, 1914, judgment was rendered sentencing him to the penalty of 12 years and one day of reclusion temporal, to endow the offended party in the sum of P500, to recognize and maintain the offspring, should there be any, to the accessory penalties of article 59 of the Penal Code, and to pay the cost. From this judgment an appeal was taken by defendant’s counsel.

At a late hour of the night of June 30, 1914, the defendant Eustaquio Yumul entered the house of a woman named Pavi, situated in the barrio of San Isidro, of the municipality of Bacolor, Pampanga. The girl Donata Infante, 15 years of age, was asleep at the time in a corridor of this house, and the defendant, by means of force and intimidation, as the girl alleged, succeeded in lying with her. Just then Donata’s grandfather, Lino Infante, about 60 years of age, approached the house and as he observed for the yard unusual movements and noises he immediately entered the house and on lighting a match saw that his granddaughter was stretched out on the floor and held down by the defendant. The aged Infante, therefore, with his bolo started to attack Yumul, but the latter told him not to do so, that justice was to be had. Infante thereupon took both his granddaughter and the defendant to the house of the barrio lieutenant ordered Yumul and the girl to remain in his, the lieutenant’s house, so that the facts might be reported to the proper authorities the next day. Infante then returned home. But the defendant, taking advantage of the circumstance that the barrio lieutenant and the other inmates of the house were asleep, went to the place in the officer’s house where the Infante girl was resting, caught hold of her, gagged her with a handkerchief and, by threatening her with a pocket knife, as she testified, succeeded despite her resistance in removing her from the house and, carrying her at times and dragging her along at others, took her to the house of Tomasa Sangalang, situated at about an hour’s walk from that of the barrio lieutenant whence, the girl had been forcibly removed. On the way to Sangalang’s house and while passing through a lonely place in a rice field the defendant again lay with the girl, whose clothes on this account were torn and covered with mud. On arrival at the house of Tomasa Sangalang he begged her to permit the girl Donata to remain there while he went in search of her camisa; but Tomasa Sangalang, fearing she might incur some liability, did not permit Yumul to enter her house, and the next morning as the defendant had not returned she furnished the girl with a camisa and took her to the pueblo, after which the latter and her grandfather presented themselves to the provincial fiscal and subsequently to the justice of the peace, before which officials they made complaint.

Lino Infante, grandfather of the offended party, testified in conformity with the foregoing facts and added that he used to leave his granddaughter Donata Infante, about 15 years of age, in the house of his sister-in-law Pavi, so as not to leave her alone in his own; and that on the day following the night in which he left her in the house of the barrio lieutenant Feliciano Mendoza, he returned to the lieutenant’s house but did not fined her there. The lieutenant told him that Donata Infante and the defendant both went away early in the morning, without his having noticed their departure, and that he therefore reported the facts to the justice of the peace. This testimony was corroborated by Tomasa Sangalang, who testified that when Donata Infante arrived in the vicinity of witness’ house, the girl’s hair was disheveled and muddy and she had no camisa and was wearing only a chemisette, while the defendant was dressed in a police uniform. Feliciano Mendoza, the barrio lieutenant, corroborated the references to himself in the foregoing testimony and testified further that after he had learned of what had occurred between the defendant and the girl, he notified them that they should remain at witness’ house until the next day when he would report the matter to the municipal president; and that when he awoke the following morning he did not find them, as they had left without his consent.

The defendant, who was a policeman of the municipality of Bacolor, denied the charge, pleaded not guilty, and testified that when he arrived at the barrio of San Isidro, in May, 1914, he inquired as to where he might find a woman with whom he could satisfy his carnal appetite, and that the girl Donata Infante was pointed out to him for the purpose; that he therefore paid court to her until he succeeded in having sexual intercourse with her, during the month of June, on which account he frequently visited her in the house where she lived, with the knowledge of the other inmates thereof, that at a late hour of the night in question he was surprised by the girl’s grandfather Lino Infante who, angered at his granddaughter’s conduct, took her along with him, and a little while afterwards defendant heard someone cry out: "Eustaquio, don’t forsake me, for my grandfather is wounding me;" that, on defendant’s approaching, Donata’s grandfather with his bolo attempted to assault him; that the defendant and the girl were then taken to the house of the barrio lieutenant where they remained that night; that early the next morning the girl begged defendant to take her to her grandfather’s, but that after leaving the lieutenant’s house she absolutely refused to be taken to her grandfather’s; and that, therefore, defendant had to take her to the house of Tomasa Sangalang where he left her, with the promise that he would return, under the pretext of looking for her camisa.

The record shows it to have been duly proven that the defendant did in fact commit the crime of abduction as charged, with the consent of the offended party and with lewd designs; but from the incriminatory evidence introduced at the trial it was not established beyond all doubt and in a decisive and conclusive manner that the abduction was perpetrated with violence and intimidation upon the person of Donata Infante.

The girl was not violently removed from the house of the woman Pavi, where she and her abductor were surprised by her grandfather, Lino Infante, while the defendant was in the act of lying with her, for they voluntarily left it that same night and were conducted by Lino Infante to the house of the barrio lieutenant in order that the former might report the defendant’s having, if not raped, at least seduced the girl.

After the barrio lieutenant Feliciano Mendoza had ordered both the girl and the defendant to remain at his house until the following day, when they were to be sent to the municipal president of the pueblo and after Donata’s grandfather, the complainant, had returned home the defendant, early in the morning of July 1, 1914, took the girl away with him and conducted her to the house of Tomasa Sangalang; but before arriving there and while passing through a rice field he again lay with her. As soon as they arrived at Tomasa Sangalang’s, the defendant left the girl there on the pretext of looking for her camisa and did not return; so the woman Sangalang at the girl’s request accompanied her to the town, where Donata met her grandfather Lino Infante, who then made complaint to a Government official.

Although the offended party positively stated that the defendant caught hold of her and, covering her mouth, removed her by force and intimidation from the barrio lieutenant’s house, these alleged facts do not appear to have been duly proven, even by circumstantial evidence. It cannot therefore be believed that the crime was committed in the manner the girl alleged it was, inasmuch as, if she had at least screamed and tried to resist her abductor, sufficient noise and disturbance would have been produced to have awakened the lieutenant and the other inmates of the house, who would thus have become aware of the attempt made against her. As no one was awakened nor did they observe the defendant’s leaving with the offended party, it is to be presumed that the girl’s abduction early that morning was probably committed with her consent. There might perhaps have been violence or intimidation in the beginning, especially when the defendant succeeded in lying with the girl in the house where she was living, and violence was probably resorted to when she was caught and removed from the barrio lieutenant’s house by her abductor, but it is very likely a few moments afterwards the girl willingly followed and allowed herself to be conducted by her abductor to the house of Tomasa Sangalang. Therefore, there being no conclusive evidence that the crime of abduction with violence was committed upon the person of the girl Donata Infante, and as the record shows satisfactory proof that she was removed and taken from Lieutenant Feliciano Mendoza’s house without his knowledge, early in the morning of July 1st, the abductor taking advantage of the darkness and silence that prevailed at the time, and of the circumstance that the lieutenant and his house companions were asleep and that they were not awakened by any noise or disturbance, it is reasonable to presume that the girl voluntarily followed her abductor and, therefore, that the abduction was effected with her consent and with lewd designs, though the defendant’s exculpatory statements cannot be admitted as true, because they are not confirmed by the evidence.

As regards the age of the offended party, not only the latter but also her grandfather stated that she was a minor about 15 years old (pp. 49 and 79, record), and this was the opinion of the trial judge, who had her before him and knew her personally. He decided that she was not of the age that appears in the baptismal certificate presented by the defense and found on page 22 of the record, having taken into account the girl’s general appearance, features and physical condition, for there is a notable difference between a girl and a woman of more than 18 years of age. Moreover, though the witness Lupo Hernandez affirmed that the girl’s mother had only two children, one of whom was the said Donata and the other a boy named Dimas, the other witness Proceso Sicat positively stated that she had had two daughters and one son, but he did not know the name of one of the daughters, who was dead. From these divergent if not contradictory statements it can logically be concluded that the baptismal certificate presented in evidence may refer to Donata Infante’s deceased sister who, were she living, would be older than she. The said certificate having been rejected by the provincial fiscal because it was only a copy and because of the failure to identify the persons to whom it referred, its authenticity was not shown nor was it proved that the original certificate was that of the baptism of Donata Infante. Therefore the trial judge correctly held that, according to her own testimony and that of her grandfather, the girl was only 15 years of age.

In the commission of the crime in question, which falls within article 446 of the Penal Code, it must be held that the aggravating circumstances 11 and 15 of article 10 of the Penal Code were present, inasmuch as the defendant effected the abduction by availing himself of his official position of municipal policeman, for he was wearing his uniform, and by taking advantage of the silence and darkness of the night for the purpose of abducting the girl with impunity. These aggravating circumstances are not counterbalanced by any extenuating one. Therefore the adequate penalty should be imposed upon him in the maximum period of the minimum and medium degrees specified in said article 446 of the Code.

For the foregoing reasons, the judgment appealed from should be reversed and we hereby sentence Eustaquio Yumul to the penalty of four years of prision correccional, to the accessory penalties, to indemnify the offended party in the sum of P300 and, in case of insolvency, to the corresponding subsidiary imprisonment, and, notwithstanding his being married, to the obligation of maintaining the offspring, should there be any, and to the costs of both instances. The defendant shall be credited in the principal penalty with one-half of the time he was held in detention. So ordered.

Arellano, C.J., Johnson, Moreland and Trent, JJ., concur.