In the evening of December 5, 1990, some ten (10) armed robbers raided the compound of Johnny and Rose Lim on Edison Street, Lahug, Cebu City. The Lims, their three (3) children, and the employees of the family-owned business, William’s Educational Supply; were able to see the faces of the leader Wilfredo alias "Toto" Garcia and two of his men, Mawe Garcia and a certain Edgar. The other robbers could not be identified as they had flour sacks over their heads.

The robbers carted away cash and jewelries worth twenty thousand pesos (P20,000.00). They also blindfolded and forcibly abducted seventeen (17) year old Stephanie, the youngest daughter of the Lims. They demanded a ransom of one million pesos (P1,000,000.00) for her release. Jksm

Johnny Lim turned over to Toto Garcia the ransom amount in the afternoon of the next day at an arranged meeting place. Stephanie, in turn, was released to her father.

Initially, the Lims kept the crime a secret. But on the third day, they reported the kidnapping to the Philippine National Police Cebu Metropolitan District Command (Cebu Metrodiscom) at Camp Sotero, Cabahug, Cebu City. The Metrodiscom Intelligence Security Team (MIST)1 [Composed of 1Lt. John P. Campos, 2Lt. Michael Ray B. Aquino, Sgt. Narciso L. Ouano, Jr., Tsgt. Felipe Honoridez, Sgt. Armando Ballon, Sgt. Firmo Condia, Msgt. Oscar Dadula, Cpl. Jeremias Canares and Sgt. Catalino Ybanez.] conducted an investigation and Johnny Lim was shown photographs of criminal elements to identify the suspects. From around ninety (90) photographs, Lim picked that of Toto Garcia. Chief

The identification of Toto Garcia gave the MIST a valuable lead. Toto Garcia was known as the leader of a group of armed robbers called the Baong Gang. The gang’s base of operation was pinpointed at Quiot, Pardo, Cebu. When the police learned from Lim that his house guard, Eduardo Basingan hailed from Quiot, Pardo, Cebu City, they decided to interrogate him.

Basingan’s interrogation broke the case wide open. He identified Toto Garcia, Mawe Garcia and Edgar as the three (3) who did not wear masks, Sadam and Rey as the two (2) who held him and the Lims at gunpoint, and Tata Garcia, Yul Alvarez, a certain Benjie, a certain Leos and a certain Laring as the look-outs who stayed outside the Lims compound. He named Toto Garcia as the chief plotter of the crime at bar, and revealed that his neighbors and close family friends, the spouses Leonilo and Beverly Cui, participated in the plan. Basingan said he was asked to join the plot and was assured that he would not be under suspicion because he would be placed at gun point together with the other members of the Lim household when the crime is committed. However, he refused to join the plot during the December 2, 1990 meeting of the group at the residence of the Cuis in Quiot,. Pardo, Cebu City. Leonilo Cui even invoked their close ties as godfathers of each other’s children but he was unmoved. At the meeting were Toto Garcia, Mawi Garcia, Edgar, Rey, Sadam and the Cuis. Esm

On December 18, 1990, Basingan executed a sworn statement2 [Exhibit "C", Folder of Exhibits, pp. 4-10.] reiterating these revelations in writing. Johnny and Rose Lim then formalized their complaint by executing a Joint Affidavit.3 [Original Records, p. 3.] The members of the Metrodiscom Intelligence Security Team also executed a Joint Affidavit4 [Id., pp. 17-18.] relating their investigation. With these as bases, Assistant Prosecutor Bienvenido N. Mabanto, Jr. filed an Information5 [Id., pp. 1-2.] for Kidnapping with Ransom against Basingan, the Cuis, and the members of the group of Toto Garcia as identified by Basingan in his sworn statement.

On the same day, December 18, 1990, Basingan and Leonilo Cui were arrested.6 [Order for Detention during Pendency of the Case dated December 18, 1990 signed by Vice-Executive Judge Bernardo Ll. Salas, Original Records, p. 21.] Beverly Cui was also taken into custody on January 17, 1991.7 [Return dated January 17, 1991 signed by Lt. Colonel Panfilo M. Lacson, Original Records, p. 29.] The Cuis, however, were later granted bail and their plea for preliminary investigation was given due course.8 [Original Records, pp. 22-28.] Esmsc

On March 14, 1991, Joselito "Tata" Garcia, Hilaria Sarte and her live-in partner, Luis Obeso, referred to by Basingan as "Laring" and "Leos", respectively, were arrested in the neighboring Negros Island. The next day, however, Tata Garcia died due to "hemorrhage, severe, secondary to gunshot wounds".9 [Certification of Death issued by Dr. Tomas P. Refe, Medico-Legal Officer III, NBI-Cebu City, Original Records, p. 91.] Upon presentation of his death certificate, the trial court ordered his name deleted from the information.

On March 22, 1991, Obeso and Sarte filed their own motions for preliminary investigation.10 [Original Records, pp. 44-45.] Their motions were granted in an Order dated April 2, 1991.11 [Id., p. 46.]

On April 1, 1991, Basingan executed a second sworn statement12 [Exhibit "C", Folder of Exhibits, pp. 4-10.] reiterating his first. In addition he detailed the role of the Cuis in the planning of the crime at bar. Esmmis

After preliminary investigation, Prosecutor Manuel J. Adlawan found that the participation of the Cuis was only that of accomplices. Thus, on May 13, 1991, an Amended Information was filed downgrading the charge against the Cuia as mere accomplices in the kidnapping with ransom of Stephanie Lim. It reads:

"That on or about the 5th day of December, 1990, at about 9:00 P.M. more or less and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, all private individuals, conniving and confederating together, and mutually helping with one another, armed with unlicensed firearms, with deliberate intent, with intent of gain, enter the dwelling house of spouses Johnny and Rose Lim and while inside therein with violence and intimidation, take and carry away cash and jewelries in the amount of P20,000.00 from the possession of and belonging to spouses Johnny and Rose Lim and that on the occasion thereof, and in connection therewith and for the purpose of extorting ransom from said spouses Johnny and Rose Lim, herein accused, in pursuance of their superior strength did then and there kidnap and detain Stephanie Lim 17 years old [sic] daughter of spouses Johnny and Rose Lim and while Stephanie Lim was under detention in the place other than the latter’s dwelling place, the said accused demanded the amount of P1,000,000.00 for the release of Stephanie Lim to which demands and for fear of the latter’s life spouses Johnny and Rose Lim delivered and caused to be delivered the amount of P1,000,000.00 to said accused; and accused-

who are hereby charged for the same offense as accomplices cooperate in its execution by previous acts and subsequently profiting in the effects of the crime by receiving the amount of P10,000.00 from the principal accused as their share of the loot, to the damage and prejudice of Johnny, Rose and Stephanie Lim in the total amount of P1,020,000.00.

"CONTRARY TO LAW."13 [Original Records, pp. 52-54.]

On May 15, 1991, Basingan, the Cuis, Obeso and Sarte were arraigned and they all pleaded not guilty.14 [Order dated May 15, 1991, Original Records, p. 55.] On June 27, 1991, Basingan escaped from prison.15 [Incident Report Re Escape of Detained Prisoner, Eduardo Basingan, marked as Exhibit "J", Original Records, p. 97.]

Trial on the merit ensued against the Cuis, Obeso and Sarte. Basingan was tried in absentia. Msesm

On February 13, 1992, Bienvenido Nacario, alias "Rey Nacario", was arrested. On arraignment on April 13, 1992, he pleaded not guilty. However, on May 5, 1992, he, too, escaped from detention and remains at large to this date.

On August 18, 1992, the prosecuting fiscal manifested before the trial court that, per newpaper report, Toto Garcia had been killed in Davao.

On December 6, 1993, the trial court convicted the Cuis, Obeso, Sarte, Basingan and Nacario.16 [In a Decision penned by Judge Galicano O. Arriesgodo, Rollo, pp. 23-50.] It held:

"In the light of the totality of the evidence adduced in the case at bar and the law and aforementioned jurisprudence, the Court is convinced that a conspiracy was hatched by all the accused in perpetrating the crime charged. For instance, as borne out by the testimony of Sgt. Narciso Ouano, Jr., police investigator of the Cebu Metrodiscim [sic], accused Eduardo Basingan declared during his investigation that the plan was indeed carried out and he knew all the persons who participated in that robbery, naming Toto Garcia, Tata Garcia, Mawi Garcia, Rey, Edgar, Sadam, Yul Alvarez, Benjie, Leo and Laring. When the named robbers entered the residence of his master Johnny Lim, the robbers were wearing masks except Toto Garcia, Mawi Garcia and Edgar. The others, Rey, Sadam, Laring, Leo, Benjie and Yul Alvarez were wearing masks but Basingan was still able to identify them in spite of the fact that they were wearing masks because these persons were familiar to him already as they used to frequent the house of Leonilo and Beverly Cui. At the time of the robbery, only Toto Garcia, Mawi Garcia, Edgar, Rey and Sadam went inside the house of his master while Yul Alvarez, Benjie, Leos and Laring were guarding outside the building. On December 7, 1990, two days after the robbery, he was called by his Comadre Beverly Cui and the latter handed to him the amount of P40,000.00 in her house, saying that Toto Garcia left the said amount to be given to him. During their talk, Basingan verbally told them about the incident relative to the kidnapping and his having received P40,000.00 from Toto Garcia as his share of the ransom. A formal investigation was conducted by Sgt. Armando Ballon in the presence of Atty. Elias Espinosa who assisted Eduardo Basingan. Exsm

"x x x The denial of accused Luis Obeso and Hilaria Sarte as to their participation in the commission of the crime does not hold water for they were duly identified even during the initial phase of the commission of the crime. They were the renters of the house where Stephanie, the kidnapped victim, was placed. Stephanie had identified the house. The flight of these two accused to Bacong, Dumaguete City is indicative of their guilt. x x x

"The prosecution has indeed established the guilt of the accused beyond reasonable doubt as against accused Eduardo Basingan, Bienvenido Nacario y Pardillo, @ "Rey Nacario," Luis Obeso, @ "Leos", Hilaria Sarte, @ "Laring", Leonilo Cui y Baladjay and Beverly Cui y Cantuba, the latter two are only as accomplices, to the crime of kidnapping with ransom. x x x".17 [Decision of the Regional Trial Court dated December 6, 1993, pp. 24-25, Rollo, pp. 46-47.]

They were sentenced to suffer the following penalties: Kyle

"WHEREFORE, in view of all the foregoing considerations, JUDGMENT is hereby rendered convicting the accused Eduardo Basingan, Bienvenido Nacario y Pardillo @ "Rey Nacario," Luis Obeso, @ "Leos", Hilaria Sarte, @ "Laring", as principals for the crime of KIDNAPPING WITH RANSOM and shall suffer the penalty of reclusion perpetua and the accused Leonilo Cui and Beverly Cui being accomplices, to suffer an imprisonment of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. They are further ordered to jointly restitute to the victim the ransom money less the amount recovered. Accused Hilaria Sarte and Luis Obeso, being detention prisoners are credited in full during the whole period of their detention provided that they signify in writing that they will abide with the rules and regulations of the penitentiary.

"x x x

"SO ORDERED."18 [Decision, supra, pp. 27-28, rollo, pp. 49-50.]

Obeso and Sarte filed their Notice of Appeal19 [Rollo, p. 51.] on May 19, 1994. The Cuis filed theirs20 [Id., p. 53.] on May 31, 1994. Kycalr

In their Brief dated April 21, 1997, Obeso and Sarte prayed for their acquittal on the following grounds:

"THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS ON THE BASIS OF THE EXTRA-JUDICIAL STATEMENT MADE BY EDUARDO BASINGAN AND THE TESTIMONY OF SGT. NARCISO OUANO JR. THEREON, WHICH ARE HEARSAY EVIDENCE.

"THE TRIAL COURT ERRED IN FINDING THE TWO ACCUSED-APPELLANTS AS PRINCIPALS BY CONSPIRACY DESPITE THE ABSENCE OF ANY COMPETENT AND CONVINCING PROOF OF THEIR CULPABILITY."21 [Brief for Accused-Appellants Luis Obeso and Hilaria Sarte dated April 21, 1997, p.6, Rollo, p. 96.] Calrky

On June 25, 1997, the Cuis also filed their Brief. They contended:

"I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE CONSTITUTIONAL RIGHTS OF APPELLANTS-SPOUSES LEONILO CUI AND BEVERLY CUI TO REMAIN SILENT, TO COUNSEL AND AGAINST SELF-INCRIMINATION HAD BEEN GROSSLY VIOLATED DURING THEIR CUSTODIAL INVESTIGATION.

"II. THE TRIAL COURT ERRED IN NOT EXCLUDING HEARSAY EVIDENCE OFFERED TO PROVE ALLEGED CONSPIRACY AND PARTICIPATION OF APPELLANTS-SPOUSES LEONILO CUI AND BEVERLY CUI, AS ACCOMPLICES IN THE CRIME CHARGED."22 [Brief for Appellants dated May 28, 1997, p. 1, Rollo, p. 138.]

On August 13, 1998, the Office of the Solicitor General filed, in lieu of an Appellee’s Brief, a Manifestation23 [Dated August 3, 1998, Rollo, pp. 223-243.] recommending the acquittal of the Cuis, Obeso and Sarte on the ground that the prosecution failed to present adequate proof of their guilt beyond reasonable doubt. It was postulated: Mesm

"It is clear that the only piece of evidence that would link appellants directly to the kidnapping of Stephanie Lim is the Sworn Statement executed by Eduardo Basingan (Exhibit "C") implicating appellants and describing their participation in detail. Basingan’s extra-judicial confession, however, is inadmissible for being hearsay as he was not presented by the prosecution as its witness, he having escaped after arraignment. Hence, appellants were not afforded the opportunity to cross-examine him. Cross-examination is an indispensable instrument of criminal justice to give substance and meaning to the constitutional right of the accused to confront the witnesses against him and to show that the presumption of innocence has remained steadfast and firm x x x. It was intended to prevent the conviction of the accused upon depositions or ex-parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of his right of cross-examination x x x. Slx

"Perhaps realizing the futility of relying solely on Basingan’s extra-juridical (sic) confession in order to secure appellants’ conviction, the prosecution presented Sgt. [O]uano who testified on the informal investigation he conducted on Basingan. Part of his testimony was the same extra-judicial confession made by Basingan which was strongly objected to by appellants. It cannot be overemphasized that Sgt. [O]uano’s testimony is not based on his own personal knowledge but on other evidence. He has no personal knowledge of the participation of the appellants in the kidnapping of the victim. Hence, his testimony is purely hearsay evidence and has no probative value, whether objected to or not x x x."24 [Manifestation and Motion in Lieu of Consolidated Appellees’ Brief dated August 3, 1998, p. 11, Rollo, p. 233.]

There is no question that Basingan escaped and never testified in court to affirm his accusation against the Cuis, Obeso and Sarte. Thus, the trial court committed reversible error in admitting and giving wieght to the sworn statements of Basingan. In the same vein, the testimony of Sgt. Ouano confirming the content of Basingan’s sworn statements is not proof of its truth and by itself cannot justify the conviction of appellants. Both the extrajudicial sworn statements of Basingan and the testimony of Sgt. Ouano are clear hearsay. Indeed, the records show that the trial court itself admitted Basingan’s statements merely as part of the investigation of Sgt. Ouano, thus:

Despite its ruling, the trial court used the statements of Basingan, as testified to by Sgt. Ouano, as proofs of the guilt of the Cuis, Obeso and Sarte. Undeniably, they are hearsay for any oral or documentary evidence is hearsay by nature if its probative value is not based on the personal knowledge of the witnesses but on the knowledge of some other person who was never presented on the witness stand.26 [People v. MeloSantos, 245 SCRA 569, 575-577 (1995).]

Conviction cannot be based on hearsay evidence. In the 1996 case of People v. Raquel,27 [265 SCRA 248 (1996).] we squarely addressed the issue of whether or not the extra-judicial statements of an escaped accused implicating his co-accused may be utilized against the latter. There we ordered an acquittal and held:

"A thorough review of the records of this case readily revealed that the identification of herein appellants as the culprits was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as his co-perpetrators of the crime. As earlier stated, the said accused escaped from jail before he could testify in court and he has been at large since then.

"The extra-judicial statements of an accused implicating a co-accused may not be utilized against the latter, unless these are repeated in open court. If the accused never had the opportunity to cross-examine his co-accused on the latter’s extra-judicial statements, it is elementary that the same are hearsay as against said accused. That is exactly the situation, and the disadvantaged plight of appellants, in the case at bar. Korte

"Extreme caution should be exercised by the courts in dealing with the confession of an accused which implicates his co-accused. A distinction, obviously, should be made between extra-judicial and judicial confessions. The former deprives the other accused of the opportunity to cross-examine the confessant, while in the latter his confession is thrown wide open for cross-examination and rebuttal.

"The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extra-judicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of astrangers, neither ought their acts or conduct be used as evidence against him."28 [Id., pp. 255-259.] Sclaw

The res inter alios has exceptions. Thus, Section 30 of Rule 130 provides:

"The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration."

For this provision to apply, the following requisites must be satisfied:

The general rule is that extra-judicial declarations of a co-conspirator made before the formation of the conspiracy or after the accomplishment of its object are inadmissible in evidence as against the other co-conspirators, on the ground that the accused in a criminal case has the constitutional right to be confronted with the witnesses against him and to cross- examine them.30 [People v. Badilla, 48 Phil. 718, 725 (1926).] Xlaw

In the case at bar, the alleged conspiracy among the accused was not priorly established by independent evidence. Nor was it shown that the extra-judicial statements of Basingan were made while they were engaged in carrying out the conspiracy. In truth, the statements were made after the conspiracy has ended and after the consummation of the crime. They were not acts or declarations made during the conspiracy’s existence. Since the extra-judicial admissions were made after the supposed conspiracy, they are binding only upon the confessant and are not admissible against his co-accused; as against the latter, the confession is hearsay.31 [People v. Bernardo Quidato, Jr., G.R. No. 117401, October 1, 1998; Peole v. Surigawan, supra; People v. Ferry, 66 Phil. 310, 321 (1938).] In fine, the extra-judicial statements of Basingan cannot be used against the Cuis, Obeso and Sarte without doing violence against their constitutional right to confront Basingan and to cross-examine him.32 [People v. Surigawan, supra; People v. Badilla, supra; People v. Ferry, supra.]

Be that as it may, we hold that on the basis of other evidence on record, the Cuis are guilty beyond reasonable doubt of being accessories, not accomplices as held by the trial court, in the kidnapping of Stephanie Lim. Xsc

Article 18 of the Revised Penal Code, a amended, penalizes as accomplices those persons who cooperate in the execution of the offense by previous or simultaneous acts not indispensable to the consummation of the offense. Accomplices cooperate in the execution of the crime by previous or simultaneous acts, by means of which they aid, facilitate or protect the execution of the crime, without, however, taking any direct part in such execution, or forcing or inducing others to execute it, or contributing to its accomplishment by any indispensable act.33 [Aquino, Ramon C., The Revised Penal Code, Volume One, 1987 Edition, p. 531.] Had Basingan been able to testify on his affidavit detailing the role of this Cuis in the planning of the robbery of the Lim household, the trial court would have had sufficient basis to convict them as accomplices therein. As discussed above, however, Basingan escaped before taking the witness stand.

This Court, however, holds that the Cuis profited from the kidnapping of Stephanie Lim and are liable as accessories. Scmis

Article 19 of the Revised Penal Code, as amended, penalizes as accessories to the crime those who, subsequent to its commission, take part therein by profiting themselves or assisting the offenders to profit by the effects of the crime, without having participated therein, either as principals or accomplices. Conviction of an accused as an accessory requires the following elements: (1) that he has knowledge of the commission of the crime; and (2) that he took part in it subsequent to its commission by any of the three modes enumerated in Article 19 of the Revised Penal Code, as amended.34 [People v. Maluenda, 288 SCRA 225, 253 (1998) citing People v. Cordova, 224 SCRA 319, 338 (1993); People v. Verzola, 80 SCRA 600, 608 (1977); and People v. Amajul, 1 SCRA 682, 689-690 (1961).] These twin elements are present in the case of the Cuis, and indubitable proof thereof is extant in the records of the case.

The members of the Metrodiscom Intelligence Security Team (MIST), namely, Lt. John P. Campos, Lt. Michael Ray B. Aquino, Sgt. Narciso L. Ouano, Jr., Sgt. Felipe Honoridez, Sgt. Armando Ballon, Sgt. Oscar Dadula, Cpl. Jeremias Canares, and Sgt. Catalino Ybanez, executed a Joint Affidavit dated December 18, 1990, stating, among other things, that "the couple Leonilo and Beverly Cui, although denying knowledge of the kidnapping revealed that Toto Garcia is their Compadre" and that "they also turned over to us the amount of P10,000.00 representing that given to them by Toto Garcia out of the ransom money."35 [Par. 7 of the Joint Affidavit dated December 18, 1990, Original Records, p. 17.] Sc

This statement charging the Cuis with having partaken of the ransom money was not denied either in the Counter-Affidavit of Leonilo Cui dated February 15, 1991 or in the Counter-Affidavit of Beverly Cui of the same date. In his Counter-Affidavit, Leonilo Cui even admitted that he knew that Toto Garcia and Basingan had held secret meetings in his house and that he had already become suspicious of their acts, but he did not confront them because they treated each other as special friends, they being godfather of each other’s children.

In their defense, the Cuis submitted an Affidavit dated February 15, 1991 executed by Myrna M. Limbagan, a niece of Beverly Cui who lived with them in their house in Pardo, Cebu City. But instead of exonerating the Cuis, this Affidavit inculpates them as it states in paragraph 10 that "on December 7, 1990, Toto Garcia, Eduardo Basingan and other persons visited the residence of the Spouse[s] Cui[s] and handed some amounts of money to the couple".36 [Affidavit dated February 15, 1991 marked as Exh. "E", p. 2, Original Records, p. 81.] Significantly, it is Limbagan, a witness for the defense, who corroborates the incriminating statements made by the members of the Metrodiscom Intelligence Security Team in their Joint Affidavit. Missc

Realizing the aggravation caused them by the affidavits of Limbagan and the members of the Metrodiscom Intelligence Security Team, the Cuis jointly executed a Supplement Counter-Affidavit37 [Original Records, p. 156.] dated April 24, 1991 this time denying that they profited in any way from the kidnapping of Stephanie Lim. They explained that they turned over the sum of P10,000.00 to Lt. Michael Ray Aquino not as their share in the ransom money but as a "bribe" to prevent the members of the Metrodiscom Intelligence Security Team from further inflicting physical harm on the person of Leonilo Cui. In her testimony in open court, Beverly Cui claimed that she and her husband were arrested on December 14, 1990 at their residence in Pardo, Cebu City but that she was later released by the members of the Metrodiscom Intelligence Security Team so that she could withdraw money from the bank to pay to them in exchange for her husband’s freedom. Misspped

Two of the members of the Metrodiscom Intelligence Security Team, Sgt. Narciso Ouano and Sgt. Catalino Ybanez, testified rebutting the claim of Beverly Cui. Sgt. Ouano testified as follows:

For his part, Sgt. Catalino B. Ybanez testified in the following manner:

Significantly, it is again the Cuis themselves, in their Motion for Reconsideration dated December 2, 1993, who corroborated Sgt. Ybanez’s claim that Beverly Cui was temporarily released for the particular purpose of accompanying the police to the hideout of Toto Garcia and his men. Thus, in par. 5 of their Motion for Reconsideration, they allege that "x x x Beverly Cui was temporarily released from custody in order for her to lead the police to the hideouts of the other suspects of the crime".40 [Motion for Reconsideration dated December 2, 1993, p. 3, Original Records, p. 247.] Sdaamiso

As accessories to the consummated crime of kidnapping for ransom, the penalty imposable upon Leonilo and Beverly Cui is two degrees lower than that prescribed by law.41 [Art. 53, Revised Penal Code, as amended.] Under Article 267 of the Revised Penal Code, as amended, the penalty shall be death where the kidnapping was committed for the purpose of extorting ransom. However, when the crime was perpetrated in December 1990, the death penalty has been suspended by the 1987 Constitution and commuted to reclusion perpetua. Since no modifying circumstance is appreciated for or against the Cuis, the imposable penalty should be in the medium period of the indeterminate sentence applicable under Republic Act no. 4103, as amended.42 [People v. Maluenda, 288 SCRA 225, 253 (1998).]

Finally, while we affirm the conviction of the Cui spouses, we acquit Obeso and Sarte.

The only evidence linking Obeso and Sarte to the kidnapping of Stephanie is Basingan’s sworn statements that a certain Leos and a certain Laring were among the lookouts who stood as guards outside the house of the Lims while Toto Garcia and his group were inside. Basingan’s sworn statements are hearsay, hence, inadmissible in evidence against his co-accused because he escaped before he could take the witness stand. Sdaad

Except for Basingan who could not even give the real names of Obeso and Sarte and just referred to them as the Leos and Laring, respectively, no one really knew them. And significantly, no prosecution witness identified them, not even Stephanie Lim. She never saw any of them during the robbery or in the house where she was detained. Her testimony runs, viz.:

Obeso and Sarte interposed the defense of alibi. They asseverated that in late November, 1990, they left the house they were renting in Linao, Minglanilla, Cebu and went to Banilad, Bacong, Dumaguete City where the parents of Sarte reside. It was there, in March 1991, that they were arrested. Jjlex

The prosecution never rebutted the claim of live-in partners Obeso and Sarte that they were in Bacong, Dumaguete City as early as November, 1990. No direct evidence has been proffered by the prosecution to place Obeso and Sarte at the scene of the crime. Their alibi has to be given credence.

WHEREFORE, the Decision of the Regional Trial Court of Cebu City, Branch 18, dated December 6, 1993, in Criminal Case No. CBU-20464, is MODIFIED. Appellants Leonilo and Beverly Cui are CONVICTED as ACCESSORIES and are ORDERED to serve the indeterminate sentence of two (2) years, four (4) months and one day of prision correccional, as minimum, to eight (8) years and one day of prision mayor, as maximum. Appellants LUIS OBESO, alias "LEOS", and HILARIA SARTE, alias "LARING" are ACQUITTED and if presently detained, they are ordered immediately released from detention unless other legal reasons exists to detain them. The Director of Prisons is ordered to inform this Court within ten (10) days from receipt of this Decision his compliance. No costs.

Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.