THIRD DIVISION

G.R. No. 144316. March 11, 2002.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.TERESA BERNARDO y TAMBIEN, accused-appellant.

Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Appellant was charged with kidnapping and failure to return a minor under Article 270 of thereclusion perpetua.She pleaded not guilty and claimed that Roselle left the baby with her and after waiting for several minutes she went out towards the hospital's gate to look for Roselle's mother. It was then that Roselle suddenly appeared and started crying for help. Roselle, on the other hand, testified that appellant befriended her, entrusted the baby to her when appellant asked her to buy ice water. When she returned she saw appellant running away with her baby sister. She tried to prevent appellant from getting away and when she cried for help a man came to her rescue. This man turned out to be Emerento Torres, a Barangay Kagawad,who helped Roselle find her mother who confirmed that the baby was hers. The trial court found appellant guilty as charged. Aside from imprisonment, she was ordered to pay complainant P300,000.00 moral damages and P50,000.00 nominal damages with interest. The appeal was based mainly on the finding of guilt and the amount of damages awarded.

The two essential elements of kidnapping and failure to return a minor under Article 270 of the

With the fact that appellant had only a few minutes' custody of the baby, the awards of moral and nominal damages were reduced to P10,000.00 each.

SYLLABUS

1. CRIMINAL LAW; KIDNAPPING AND FAILURE TO RETURN A MINOR; ELEMENTS. The crime committed by appellant in the case at bar falls under Article 267 of the,232 SCRA 478 1997).In (263 SCRA 745 1996), we stated that the essential element of the crime of kidnapping and failure to return a minor is that the offender is entrusted with the custody of the minor, but what is actually being punished is not the kidnapping of the minor but rather the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. Indeed, the word deliberate as used in Article 270 of the

2. ID.;ID.;ID.;ID.;CASE AT BAR. When Roselle entrusted Roselyn to appellant before setting out on an errand for appellant to look for ice water, the first element was accomplished and when appellant refused to return the baby to Roselle despite her continuous pleas, the crime was effectively accomplished. In fine, we agree with the trial court's finding that appellant is guilty of the crime of kidnapping and failure to return a minor.

3. CIVIL LAW; DAMAGES; MORAL DAMAGES; AMOUNT OF AWARD MODIFIED WHERE APPELLANT HAD CUSTODY OF THE CHILD FOR ONLY A FEW MINUTES. Article 2219 of the

4. ID.; ID.; NOMINAL DAMAGES; AMOUNT REDUCED WHERE CHILD'S KIDNAPPING WAS OF SHORT DURATION. Likewise, the award of nominal damages is allowed under Article 2221 of the

D E C I S I O N

MELO, J p:

A moment of indiscretion oftentimes leads to a lifetime of regret.

Before this Court is an appeal from the decision of the Regional Trial Court of the National Capital Judicial Region (Branch XVIII, Manila) in its Criminal Case No. 99-173104 convicting appellant of the crime of kidnapping and failure to return a minor under Article 270 of thereclusion perpetua,and to indemnify the complainant, Rosita Tolibas y Aguada P300,000.00 as moral damages and P50,000.00 as nominal damages, and to pay the costs.

The Information for the crime of kidnapping and failure to return a minor filed against appellant on May 19, 1999 reads:

That on or about May 13, 1999, in the City of Manila, Philippines, the said accused being then a private individual and without authority of law, did then and there willfully, unlawfully and feloniously kidnap and carry away one ROSELYNN TOLIBAS y AGUADA, a minor, 15 day old baby girl, represented by her mother, ROSITA TOLIBAS y AGUADA, thereby depriving the said ROSELYNN TOLIBAS y AGUADA of her liberty against her will and consent.

Contrary to law.

(p. 5, Rollo.)

Upon her arraignment on June 23, 1999, appellant pleaded not guilty to the charges. Trial thereafter followed.

The facts, as adduced by the prosecution, are faithfully summarized in the brief submitted by the Solicitor General, to wit:

On May 13, 1999, around 11:30 in the morning, 12-year old Maria Roselle Tolibas y Aguada and her 15-day old sister, Rosalyn Tolibas, were with their mother, Rosita Tolibas y Aguada, at the Fabella Memorial Hospital on Felix Huertas Street, Sta. Cruz, Manila. Rosita and her daughter Roselle were at the hospital for medical check up and tooth extraction, respectively (TSN dated August 25, 1999, pp. 1-3).

While Rosita was undergoing medical check up inside the hospital, her two daughters waited at the lobby. Roselle was seating on a bench with her 15-day old sister on her lap when the appellant sat beside her. Appellant befriended Roselle and asked her if the baby was a boy or a girl, and Roselle replied that the baby was a girl (Ibid.).

After a while, the appellant gave P3.00 to Roselle and asked her to buy ice water. The appellant took the 15-day old baby from Roselle and assured her that she (accused) would take care of her (Roselle's) sister, while she was buying ice water. Roselle was not able to find ice water for sale and on her way back to the hospital, she saw the accused running away with her baby sister. She chased the appellant and when she caught up with her, the appellant told her that she was running after her (Roselle's) mother. Roselle did not believe the appellant and she held and pulled the appellant's skirt to prevent her from getting away with her (Roselle's) baby sister, but the appellant persisted in running with Roselle holding on to the appellant's skirt. To slow down the accused, Roselle wrapped her arms around the accused, who struggled and pinched Roselle to free herself from her hug. Roselle shouted for help, thereby attracting the attention of Emerento Torres, a Kagawad of Barangay 311, Zone 21, Sta. Cruz, Manila, who was then resting in front of his house on Felix Huertas Street (Ibid.,pp;.3-4, TSN, dated Oct. 19, 1999, pp. 2-4).

Torres saw the appellant carrying a child and struggling with Roselle, who kept on shouting: "Akina ang kapatid ko, akina ang kapatid ko." Torres accosted appellant, who told him that she was looking for the mother of the baby she was carrying so that she could return the baby to her, but Roselle begged him to help her because her mother was at the Fabella Memorial Hospital and the accused was getting her baby sister. Torres took the baby from the appellant and entrusted the baby to his wife. Then he led appellant and Roselle to the hospital to look for the mother of the baby. Torres found Rosita at the hospital and she confirmed to him that she was the mother of the baby (Ibid.).

Torres requested the hospital's security guard to blotter the incident, after which, he turned over the appellant to the police authorities at the WPDC-PNP Headquarters on U.N. Avenue, Manila. The case was investigated by PO3 Renato Guzman, who took down the sworn statements of Roselle, Torres and Rosita, Exhibits "A","B" and "C",respectively (Id.).

(pp. 75-77, Rollo.)

On the other hand, the defense presented appellant as its sole witness, who narrated a different version of the incident.

Appellant claimed that on May 13, 1999 at around 10 o'clock in the morning, she was at the Fabella Hospital for a medical check-up, being then on her fifth month of pregnancy. At around 10:30 A.M.,while she was waiting for her live-in partner at the hospital, a girl carrying a baby came by and asked her to hold said baby. After she accepted the baby, the girl ran away. After thirty minutes of waiting, she decided to go to the hospital's entrance gate to look for the girl. It was when she was already outside the hospital's entrance gate when the girl reappeared, shouting and calling for help, claiming that the appellant was kidnapping the baby. This caused several persons, including a barangay kagawad,to come to the girl's aid. Appellant was, immediately thereafter, taken to the police station.

On July 3, 2000, the trial court rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused, Teresa Bernardo y Tambien, guilty beyond reasonable doubt of kidnapping and failure to return a minor under Article 270 of the Revised Penal Code and sentences her to suffer reclusion perpetua with all the accessory penalties provided by law and to pay the costs. On the civil liability of the accused, she is ordered to pay the complainant, Rosita Tolibas y Aguada, moral and nominal damages in the sum of P300,000.00 and P50,000.00, respectively, with interest thereon at the legal rate or 6% per annum from this date until fully paid.

(p. 12, Rollo.)

Aggrieved, appellant now appeals her conviction on the following grounds:

I

THE COURT A QUO GRAVELY ERRED IN CONVICTING HEREIN APPELLANT OF THE CRIME CHARGE DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT.

II

GRANTING ARGUENDO THAT HEREIN APPELLANT IS GUILTY, THE COURT A QUO GRAVELY ERRED IN AWARDING MORAL AND NOMINAL DAMAGES WITH INTEREST.

In assailing her conviction, appellant contends that there was no deliberate failure on her part to restore the minor Rosalyn Tolibas to her parents or guardians, stating that the charge filed against her was a mere overreaction on the part of the prosecution witnesses to her act of going out of the hospital to look for the mother of the child. She maintains that Roselle left the baby with her and after waiting for several minutes, she thought it best to look for the mother of Roselyn. This was the reason she went out towards the hospital's gate. Appellant alleged that it came as a surprise to her when Roselle started crying for help allegedly because appellant was kidnapping Roselle's baby sister.

Appellant's allegations are hard to swallow.

Initially, appellant testified that the baby was left with her by Roselle, a complete stranger, who then ran away (tsn, October 25, 1999, pp. 3-4).The Court finds this claim to be illogical for why would anyone, regardless of age, entrust a child to a complete stranger and then just run away without saying where she was going or when she was returning. We are more inclined to believe the testimony of Roselle when she explained that the reason she entrusted baby Roselyn to appellant was because the latter befriended her and subsequently asked her to buy ice water, giving P3.00 as payment (TSN, August 25, 1999, pp. 3-4).Secondly, appellant testified that she knew there was an information counter at the hospital (TSN, October 25, 1999, p. 7) and yet she did not leave word there that she was going to the hospital's entrance gate to look for the child's mother, just in case Roselle would return looking for her sister. The only justification this Court finds for this act is that appellant deliberately failed to leave word with the information counter since she did not want anyone to know that she was leaving the hospital with the baby.

Finally, appellant claimed that she went towards the hospital's entrance gate to locate the child's mother. This assertion would have gained currency if not for prosecution witness Barangay Kagawad Emerento Torres who testified that he saw Roselle struggling with appellant. He stated that Roselle was trying to stop appellant from leaving the hospital by holding on to her and at the same time shouting "akina ang kapatid ko, akina ang kapatid ko." Moreover, Emerento Torres testified that the only time appellant stopped was when he confronted them and asked what the commotion was all about (tsn, October 19, 1999, pp. 2-3).Too, Roselle narrated that while she was holding on to appellant to prevent her from leaving the premises, appellant pinched her on her right side of her belly so she would let go (TSN, October 25, 1999, p. 3).These declarations run counter to appellant's claims that she went out of the hospital to look for the baby's mother. A person whose only intention is to look for the child's mother would generally return the child to the person who entrusted the child to her. This did not happen in the present case. The only logical conclusion we can derive from appellant's actions is that her intention was really to kidnap the child not to look for the child's mother.

The crime committed by appellant in the case at bar falls under Article 267 of the

Article 267. Kidnapping and failure to return a minor The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.

It has two essential elements, namely: (1) the offender is entrusted with the custody of a minor person; and (2) the offender deliberately fails to restore the said minor to his parents or guardians (,232 SCRA 478 1997).In (263 SCRA 745 1996),we stated that the essential element of the crime of kidnapping and failure to return a minor is that the offender is entrusted with the custody of the minor, but what is actually being punished is not the kidnapping of the minor but rather the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. Indeed, the word deliberate as used in Article 270 of the

When Roselle entrusted Roselyn to appellant before setting out on an errand for appellant to look for ice water, the first element was accomplished and when appellant refused to return the baby to Roselle despite her continuous pleas, the crime was effectively accomplished. In fine, we agree with the trial court's finding that appellant is guilty of the crime of kidnapping and failure to return a minor.

However, as to the matter of both moral and nominal damages, we find the contention of appellant to be meritorious.

Article 2219 of the

Article 2219. Moral damages may be recovered in the following and analogous cases:

xxx xxx xxx

(5) Illegal and arbitrary detention or arrest;

xxx xxx xxx

Since the crime committed in this case is kidnapping and failure to return a minor under Article 270 of the

Likewise, the award of nominal damages is allowed under Article 2221 of the

Article 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.

Nonetheless, given the relatively short duration of the child's kidnapping, we find the amount of P50,000.00 awarded as nominal damages excessive, and hereby reduce the same to P10,000.00.

WHEREFORE, premises considered, the appealed judgment finding appellant Teresa Bernardo y Tambien guilty beyond reasonable doubt of the crime of kidnapping and failure to return a minor is hereby AFFIRMED with the MODIFICATION that the awards for moral and nominal damages are reduced to Ten Thousand Pesos (P10,000.00) each. No special pronouncement is made as to costs. HATEDC

SO ORDERED.

Vitug, Panganiban, Sandoval-Gutierrez and Carpio, JJ.,concur.