ROBBERY WITH HOMICIDE
From a surveillance
G.R. No. 209227, March 25, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CHARLIE
OROSCO, Accused-Appellant.
DECISION
VILLARAMA, JR., J.:
On appeal is the Decision1 dated March 22, 2013 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 05171 which affirmed the Decision2 dated June
24, 2011 of the Regional Trial Court of Legazpi City, Branch 10 finding the
accused-appellant Charlie Orosco guilty of the crime of Robbery with
Homicide.
Appellant, along with Abner Astor, “John Doe” and “Peter Doe,” were
charged with Robbery with Homicide defined and penalized under Article
294 of the Revised Penal Code, as amended. The Information reads as
follows:chanRoblesvirtualLawlibrary
That on or about the 16th day of May, 2006, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and helping one another, with
intent of gain and by means of violence, did then and there [willfully],
unlawfully, feloniously and forcibly enter the store owned by one Lourdes
Yap situated at Purok 4, Barangay Rawis, Legazpi City, and once inside said
store, take, steal and carry away cash money, to the damage and prejudice
of said Lourdes Yap, and by reason of or on occasion of said robbery, and
for the purpose of enabling them to take, steal and carry away the
aforesaid cash money in pursuance of their conspiracy, did then and there
[willfully], unlawfully and feloniously and taking advantage of their
superior strength and with intent to kill, attack, assault and stab the
aforesaid Lourdes Yap, thereby inflicting upon her injury which directly
caused her untimely death, to the damage and prejudice of her legal heirs.
CONTRARY TO LAW.3cralawred
cralawlawlibrary
The factual scenario presented by the prosecution is based on the
eyewitness account of Albert M. Arca (Arca), the postmortem findings of
Sr. Pol. Chief Insp. Dr. James Margallo Belgira who conducted the autopsy
on the cadaver of the victim, and the victim’s grandson, Ryan Francis Yap.
Arca testified that on May 16, 2006, about one o’clock in the afternoon, he
went to the store of Lourdes Yap (Yap) at Purok 4, Barangay Rawis,
Legazpi City. He was buying ice but it was not yet hardened (frozen) so he
went home. At around two o’clock, he was again sent on errand to buy ice
at the same store. After purchasing the ice, he noticed there was a verbal
tussle between Yap and two male customers. The men were arguing that
they were given insufficient change and insisting they gave a P500 bill and
not P100. When Yap opened the door, the two men entered the store.
From outside the store and thru its open window grills, he saw one of the
men placed his left arm around the neck of Yap and covered her mouth
with his right hand while the other man was at her back restraining her
hands. He recognized the man who was holding the hands of Yap as Charlie
Orosco (appellant), while he described the man who covered her mouth
as thin, with less hair and dark complexion. The latter stabbed Yap at the
center of her chest. When they released her, she fell down on the floor.
Appellant then took a thick wad of bills from the base of the religious icon
or “santo” at the altar infront of the store’s window, after which he and the
man who stabbed Yap fled together with two other men outside who acted
as lookouts. Arca went near the bloodied victim but also left and went
home afraid because he was seen by one of the lookouts. 4cralawred
Yap was brought to the Aquinas University Hospital but she was declared
dead on arrival. Later, at the National Bureau of Investigation (NBI)
Legazpi City District office, Arca gave descriptions of the faces of appellant
Page 1 of 71
and the dark thin man who stabbed Yap (“John Doe”).
digital photo and video clip shown to him, Arca positively identified Abner
Astor (Astor) as one of the two men sitting beside the store as
lookouts. Consequently, warrants of arrest were issued against appellant
and Astor. But only appellant was arrested as Astor, John Doe and Peter
Doe remained at large.
Dr. Belgira affirmed the findings in his Medico-Legal
Report5 stating:chanRoblesvirtualLawlibrary
TRUNK:
CONCLUSION:
The cause of death is hemorrhagic shock secondary to a stab wound of the
trunk.cralawlawlibrary
He explained that it was possible that the lone stab wound caused by a
sharp object, such as a knife, was inflicted while the victim was standing,
and found no other injuries such as defense wounds. 6cralawred
For his defense, appellant testified that on the date and time of the
incident, he was at his house in Bigaa taking care of his three-year-old
child while his wife was washing clothes. He stayed in the house until his
wife finished the laundry at past 3:00 p.m. He denied knowing Yap and his
co-accused Astor. While he admitted that he was a resident of Purok 4,
Bgy. Rawis, his family transferred to their other house at Bigaa. He denied
knowing Arca and he does not know of any motive for Arca to testify
against him. He worked in a copra company in Lidong but stopped
reporting for work after May 16, 2006 as he was selling fish. He was
arrested by the police at the rotunda in Legazpi when he was buying
medicine for his sick child.7cralawred
Appellant’s wife, Teresa Magdaong-Orosco also testified to confirm that at
the time of the incident he was at their house while she was doing the
laundry just adjacent to their house. On cross-examination, she was asked
the distance between their place and Bgy. Rawis and she replied that it will
take less than one hour from Bigaa to Rawis.8cralawred
On June 24, 2011, the trial court rendered judgment convicting appellant
of the crime charged, thus:chanRoblesvirtualLawlibrary
WHEREFORE, above premises considered, the Court hereby finds accused
Charlie Orosco GUILTY of the crime of robbery with homicide. He is
hereby sentenced to suffer the penalty of reclusion perpetua, to pay the
heirs of Lourdes Yap P75,000.00 as civil indemnity for the fact of death,
P75,000.00 as moral damages and P30,000.00 as exemplary damages.
Insofar as the other accused is concerned, the case is hereby sent to the
archives, pending their eventual arrest.
So Ordered.9cralawlawlibrary
Appellant went to the CA but his appeal was dismissed. The CA upheld his
conviction as it found no compelling reason to deviate from the factual
findings and conclusions of the trial court.
In this petition, appellant reiterates the arguments he raised before the CA
that the trial court erred in giving credit to the uncorroborated eyewitness
testimony of Arca who could not point to him during the trial, and that
even granting that criminal charges may be imputed against him, it should
only be robbery and not the complex crime of robbery with homicide
considering the fact that it was not him who stabbed Yap.
The appeal lacks merit.
It is settled that witnesses are to be weighed not numbered, such that the
testimony of a single, trustworthy and credible witness could be sufficient
to convict an accused. The testimony of a sole witness, if found convincing
and credible by the trial court, is sufficient to support a finding of guilt
beyond reasonable doubt. Corroborative evidence is necessary only when
there are reasons to warrant the suspicion that the witness falsified the
truth or that his observation had been inaccurate.10cralawred
In this case, both the trial and appellate courts found the testimony of the
lone eyewitness, Arca, convincing notwithstanding that he was quite slow
in narrating the incident to the court and that he initially desisted from
physically pointing to appellant as the one who held Yap’s hands from
behind and took her money at the store after she was stabbed by
appellant’s cohort (John Doe).
In his direct examination, Arca named appellant as one of those who
robbed and killed Yap but refused to pinpoint him in open court,
thus:chanRoblesvirtualLawlibrary
Arca continued with his testimony on how Yap was stabbed by appellant’s
companion and appellant taking the thick wad of P1,000 bills before
fleeing along with the two lookouts. When asked for the fourth time to
pinpoint appellant, Arca was still hesitant:
cralawlawlibrary
At the next hearing, Arca was recalled to the witness stand and this time
he was able to pinpoint appellant as among those persons who robbed and
killed Yap, thus:chanRoblesvirtualLawlibrary
cralawlawlibrary
Assessing the identification made by Arca, the trial court concluded that
he had positively identified appellant as one of the perpetrators of the
robbery and killing of Yap, viz:chanRoblesvirtualLawlibrary
Here, Albert Arca, the prosecution’s main witness, positively identified
accused Orosco as one of [the] two men who robbed and killed Lourdes
Yap on that fateful day. As observed by the trial court during the bail
hearings, when asked to identify one of the men who robbed and killed the
victim, Arca was trembling and constantly looking towards the direction
of accused Orosco. Though simple-minded, Arca was well-aware of the
possible consequences his testimony could trigger. To the Court’s mind,
Arca’s act of constantly looking towards Orosco’s direction whenever he
was asked to point out one of the culprits, is a mute but eloquent manner
of identifying Orosco as one of the perpetrators of the crime. As such,
Arca’s act is sufficient identification already.
Later, when Arca was recalled to the stand to answer some additional
questions, he was able to gather enough courage to point out to Orosco as
the man who held the hands of Lourdes Yap while his companion stabbed
her. Arca stated that he was hesitant to identify and point out accused
earlier because he feared what Orosco might do to him. Incidentally, both
Orosco and his wife stated that they do know neither Albert Arca nor
Lourdes Yap. Thus, it appears that there is no reason whatsoever for Arca
to lie and attribute the crime to Orosco. Following settled jurisprudence,
Arca’s positive identification of Orosco prevails over the latter’s
alibi.14cralawlawlibrary
We find no compelling or cogent reason to deviate from the findings of the
trial court on its evaluation of Arca’s testimony. The well-settled rule in
this jurisdiction is that the trial court’s findings on the credibility of
witnesses are entitled to the highest degree of respect and will not be
disturbed on appeal without any clear showing that it overlooked,
misunderstood or misapplied some facts or circumstances of weight or
substance which could affect the result of the case.15cralawred
Appellant repeatedly harped on the hesitation of Arca to point to him at
the trial. However, as the trial court’s firsthand observation of said
witness’ deportment revealed, Arca’s fear of appellant sufficiently
explains his initial refusal to point to him in open court during his direct
examination. Arca was finally able to point to appellant as one of the
perpetrators of the robbery and killing of Yap during his additional direct
Page 2 of 71
examination when he had apparently mustered enough courage to do so.
Robbery with homicide is defined under Article 294 of the Revised Penal
Code, as amended, which provides in part:chanRoblesvirtualLawlibrary
Art. 294. Robbery with violence against or intimidation of persons –
Penalties. – Any person guilty of robbery with the use of violence against
or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed,
or when the robbery shall have been accompanied by rape or intentional
mutilation or arson.cralawlawlibrary
The elements of the crime of robbery with homicide are: (1) the taking of
personal property is committed with violence or intimidation against
persons; (2) the property taken belongs to another; (3) the taking is done
with animo lucrandi; and (4) by reason of the robbery or on the occasion
thereof, homicide (used in its generic sense) is committed.16 Homicide is
said to have been committed by reason or on the occasion of robbery if it
is committed (a) to facilitate the robbery or the escape of the culprit; (b)
to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or (d) to eliminate witnesses
to the commission of the crime.17 In robbery with homicide, the original
criminal design of the malefactor is to commit robbery, with homicide
perpetrated on the occasion or by reason of the robbery. The intent to
commit robbery must precede the taking of human life. The homicide may
take place before, during or after the robbery.18cralawred
Here, the homicide was committed by reason of or on the occasion of the
robbery as appellant and John Doe had to kill Yap to accomplish their main
objective of stealing her money. The earlier verbal tussle where the two
pretended to have paid a greater amount and asked for the correct change
was just a ploy to get inside the store where the victim kept her
earnings. To verify whether the cash payment was indeed a P500 or P100
bill, the victim let them enter the store but once inside they got hold of her
and stabbed her. Appellant, however, argues that if he had committed any
offense, it was only robbery since Arca testified that it was John Doe,
whom he described as a thin man, who stabbed the victim.
We disagree.
The evidence presented by the prosecution clearly showed that appellant
acted in conspiracy with his co-accused. Appellant and John Doe first
engaged the unsuspecting victim in a verbal altercation until she allowed
them to enter the store. Upon getting inside, they held the victim with John
Doe wrapping his arm around her neck while appellant held her hands at
the back. With the victim pressed between the two of them, John Doe
stabbed her once in her chest before releasing her. Once she fell down,
appellant quickly took the money placed at the altar inside the store and
fled together with John Doe and the two lookouts outside the store. All the
foregoing indicate the presence of conspiracy between appellant and his
co-accused in the perpetration of robbery and killing of the victim.
It must be stressed that appellant played a crucial role in the killing of the
victim to facilitate the robbery. He was behind the victim holding her
hands while John Doe grabbed her at the neck. His act contributed in
rendering the victim without any means of defending herself when John
Doe stabbed her frontally in the chest. Having acted in conspiracy with his
co-accused, appellant is equally liable for the killing of Yap.
As we held in People v. Baron19cralawred
The concerted manner in which the appellant and his companions
perpetrated the crime showed beyond reasonable doubt the presence of
conspiracy. When a homicide takes place by reason of or on the occasion
of the robbery, all those who took part shall be guilty of the special
complex crime of robbery with homicide whether they actually
participated in the killing, unless there is proof that there was an
endeavor to prevent the killing. There was no evidence adduced in this
case that the appellant attempted to prevent the killing. Thus, regardless
of the acts individually performed by the appellant and his co-accused, and
applying the basic principle in conspiracy that the “act of one is the act of
all,” the appellant is guilty as a co-conspirator. As a result, the criminal
liabilities of the appellant and his co-accused are one and the same.
(Emphasis supplied)cralawlawlibrary
In sum, the CA did not err in affirming the conviction of appellant for
robbery with homicide. Appellant was positively identified by
prosecution eyewitness Arca as among those who perpetrated the
robbery and killing of Yap at the latter’s store on May 16, 2006 in Bgy.
Rawis, Legazpi City. This positive identification prevails over accused’s
defense of alibi. As pointed out by the trial court, it was not physically
impossible for appellant to be at the scene of the crime considering the
presence of many public conveyances which would drastically cut the one
hour walk from Bigaa to Rawis to only a “couple of minutes.” 20cralawred
On the award of damages, the trial court was correct in sentencing
appellant to suffer the penalty of reclusion perpetua and ordering him to
pay P75,000.00 as civil indemnity for the fact of death and P75,000.00 as
moral damages, conformably with prevailing jurisprudence.21 We also
find the award of exemplary damages in the amount of P30,000.00 proper
due to the presence of the aggravating circumstances of treachery and
abuse of superior strength, though these were not alleged in the
information. While an aggravating circumstance not specifically alleged in
the information (albeit established at trial) cannot be appreciated to
increase the criminal liability of the accused, the established presence of
one or two aggravating circumstances of any kind or nature entitles the
offended party to exemplary damages under Article 2230 of the Civil
Code because the requirement of specificity in the information affected
only the criminal liability of the accused, not his civil liability. 22cralawred
The aforesaid sums shall earn the legal interest at the rate of six percent
(6%) per annum from the finality of judgment until full payment.
WHEREFORE, the appeal is DISMISSED. The Decision dated March 22,
2013 of the Court of Appeals in CA-G.R. CR-HC No. 05171 affirming the
Decision dated June 24, 2011 of the Regional Trial Court of Legazpi City,
Branch 10 in Criminal Case No. 10916 is AFFIRMED. The sums awarded
as civil indemnity (P75,000.00), moral damages (P75,000.00) and
exemplary damages (P30,000.00) shall earn legal interest at the rate of
6% per annum from the finality of judgment until full payment.
With costs against the accused-appellant.
SO ORDERED.cralawlawlibr
G.R. No. 212932, January 21, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARNEL BALUTE Y
VILLANUEVA, Accused-Appellant.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court is an ordinary appeal1 filed by accused-appellant
ArnelBalutey Villanueva (Balute)assailing the Decision2 dated February 3,
2014 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 05649 which
affirmed the Decision3 dated June 11, 2012 of the Regional Trial Court of
Manila, Branch 18 (RTC) in Crim. Case No. 03-211951, finding Baluteguilty
beyond reasonable doubt of the special complex crime of Robbery with
Homicide.cralawred
The Facts
On November 22, 2002, an Information was filed before the RTC charging
Balute of the crime of Robbery with Homicide, defined and penalized
Page 3 of 71
under Article 294(1)4 of the Revised Penal Code (RPC), as amended, the
accusatory portion of which reads:5chanRoblesvirtualLawlibrary
Crim. Case No. 03-211951
“That on or about March 22, 2002, in the City of Manila, Philippines, the
said accused conspiring and confederating together with one whose true
name, real identity and present whereabouts are still unknown and
mutually helping each other, with intent to gain and by means of force,
violence and intimidation, to wit: by then and there poking a gun at one
SPO1 RAYMUNDO B. MANAOIS, forcibly grabbing and snatching his Nokia
3210 cellular phone, did then and there wilfully, unlawfully and
feloniously take, rob and carry away the same valued at P6,000.00 against
his will, to the damage and prejudice of the said SPO1 RAYMUNDO B.
MANAOIS in the aforesaid amount of P6,000.00 Philippine Currency;
thereafter shooting said SPO1 RAYMUNDO B. MANAOIS with an unknown
caliber firearm, hitting him at the back, and as a result thereof, he
sustained mortal gunshot wound which was the direct and immediate
cause of his death thereafter.
CONTRARY TO LAW.”
According to the prosecution, at around 8 o’clock in the evening of March
22, 2002, SPO1 Raymundo B. Manaois (SPO1 Manaois) was on board his
owner-type jeepney with his wife Cristita and daughter Blesilda, and was
traversing Road 10, Tondo, Manila. While the vehicle was on a stop
position at a lighted area due to heavy traffic, two (2) male persons, later
on identified as Balute and a certain Leo Blaster (Blaster), suddenly
appeared on either side of the jeepney, with Balute poking a gun at the
side of SPO1 Manaois and saying “putangina, ilabas mo!” Thereafter,
Balute grabbed SPO1 Manaois’s mobile phone from the latter’s chest
pocket and shot him at the left side of his torso. SPO1 Manaois reacted by
drawing his own firearm and alighting from his vehicle, but he was unable
to fire at the assailants as he fell to the ground. He was taken to Mary
Johnston Hospital where he died despite undergoing surgical operation
and medical intervention.6chanRoblesvirtualLawlibrary
In his defense, Balute denied having any knowledge of the charges against
him. He maintained, inter alia,that on March 22, 2002, he was at the shop
of a certain Leticia Nicol (Nicol) wherein he worked as a pedicab welder
from 8:00 o’clock in the morning until 10:00 o’clock in the evening, and
did not notice any untoward incident that day as he was busy working the
entire time. Nicol corroborated Balute’s story, and imputed liability on
Blaster and a certain Intoy.7chanRoblesvirtualLawlibrary
The RTC Ruling
In a Decision8 dated June 11, 2012, the RTC found Balute guilty beyond
reasonable doubt of the crime of Robbery with Homicide with the
aggravating circumstance of treachery, and accordingly, sentenced him to
suffer the penalty of reclusion perpetua, without eligibility for parole, in
lieu of the death penalty, as well as ordered him to pay the heirs of SPO1
Manaois the amounts of P50,000.00 as civil indemnity, P6,000.00 as
compensatory damages for the value of the stolen mobile phone, and
P50,000.00 as moral damages, with interest at the rate of six percent (6%)
per annum (p.a.) from the filing of the
Information.9chanRoblesvirtualLawlibrary
It found that the prosecution was able to establish the existence of all the
elements of Robbery with Homicide, as it proved that Balute poked his gun
at SPO1 Manaois’s side, took his mobile phone, and shot him, resulting in
the latter’s death. In this relation, the RTC gave credence to Cristita and
Blesilda’s positive identification of Balute as the assailant, as compared to
the latter’s mere denial and alibi.10chanRoblesvirtualLawlibrary
Aggrieved, Balute appealed to the CA.cralawred
The CA Ruling
In a Decision11 dated February 3, 2014, the CA affirmed Balute’s
conviction with modification in that: (a) the aggravating circumstance of
treachery was no longer considered as the prosecution failed to allege the
same in the Information;12(b) the civil indemnity was increased to
P75,000.00 in view of existing jurisprudence;(c) the P6,000.00
compensatory damages, representing the value of the mobile phone, was
deleted in the absence of competent proof of its value, and in lieu thereof,
actual damages in the aggregate amount of P140,413.53 representing
SPO1 Manaois’s hospital and funeral expenses was awarded to his heirs;
and (d) all the monetary awards for damages are with interest at the rate
of six percent (6%) p.a. from the date of finality of the CA Decision until
fully paid.13chanRoblesvirtualLawlibrary
Hence, the instant appeal.cralawred
The Issue Before the Court
The lone issue for the Court’s resolution is whether or not the CA correctly
upheld Balute’s conviction for Robbery with Homicide.
The Court’s Ruling
The appeal is bereft of merit.
It must be stressed that in criminal cases, factual findings of the trial court
are generally accorded great weight and respect on appeal, especially
when such findings are supported by substantial evidence on record. It is
only in exceptional circumstances, such as when the trial court overlooked
material and relevant matters, that the Court will re-calibrate and evaluate
the factual findings of the court below.14Guided by the foregoing principle,
the Court finds no cogent reason to disturb the RTC’s factual findings, as
affirmed by the CA.
In People v. Ibañez,15 the Court exhaustively explained that “[a] special
complex crime of robbery with homicide takes place when a homicide is
committed either by reason, or on the occasion, of the robbery. To sustain
a conviction for robbery with homicide, the prosecution must prove the
following elements: (1) the taking of personal property belonging to
another; (2) with intent to gain; (3) with the use of violence or
intimidation against a person; and (4) on the occasion or by reason of the
robbery, the crime of homicide, as used in its generic sense, was
committed. A conviction requires certitude that the robbery is the main
purpose, and [the] objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must precede the taking of
human life but the killing may occur before, during or after the
robbery.”16 Homicide is said to have been committed by reason or on
occasion of robbery if, for instance, it was committed: (a) to facilitate the
robbery or the escape of the culprit; (b) to preserve the possession by the
culprit of the loot; (c) to prevent discovery of the commission of the
robbery; or (d) to eliminate witnesses in the commission of the
crime.17chanRoblesvirtualLawlibrary
In the instant case, the CA correctly upheld the RTC’s finding that the
prosecution was able to establish the fact that Balute poked his gun at
SPO1 Manaois, took the latter’s mobile phone, and thereafter, shot him,
resulting in his death despite surgical and medical intervention. This is
buttressed by Cristita and Blesilda’s positive identification of Balute as the
one who committed the crime as opposed to the latter’s denial and alibi
which was correctly considered by both the RTC and the CA as weak and
self-serving, as it is well-settled that “alibi and denial are outweighed by
positive identification that is categorical, consistent and untainted by any
ill motive on the part of the [eyewitnesses] testifying on the matter.”18 This
is especially true when the eyewitnesses are the relatives of the victim –
such as Cristita and Blesilda who are the wife and daughter of SPO1
Manaois, respectively – since “[t]he natural interest of witnesses, who are
relatives of the victim, in securing the conviction of the guilty would
actually deter them from implicating persons other than the true
culprits.”19chanRoblesvirtualLawlibrary
In sum, the RTC and the CA correctly convicted Balute of the crime of
Robbery with Homicide as defined and penalized under Article 294(1) of
the RPC, as amended. However, the Court deems it appropriate to adjust
the award of moral damages from P50,000.00 to P75,000.00 in order to
Page 4 of 71
conform with prevailing jurisprudence.20 Further, the Court also awards
exemplary damages in the amount of P30,000.00 in favor of the heirs of
SPO1 Manaois due to the highly reprehensible and/or outrageous conduct
of Balute in committing the aforesaid
crime.21chanRoblesvirtualLawlibrarychanrobleslaw
WHEREFORE, the instant appeal is DENIED. The Decision dated February
3, 2014 of the Court of Appeals in CA-G.R. CR-HC No. 05649 finding
accused-appellant ArnelBalutey Villanueva GUILTY beyond reasonable
doubtof the crime of Robbery with Homicide defined and penalized under
Article 294 (1) of the Revised Penal Code, as amended, is
hereby AFFIRMED with MODIFICATION in that he is sentenced to suffer
the penalty of reclusion perpetua, without eligibility for parole, and is
ordered to pay the heirs of SPO1 Raymundo B. Manaois the amounts of
P75,000.00 as civil indemnity, P140,413.53 as actual damages, and
P75,000.00 as moral damages, and P30,000.00 as exemplary damages, all
with legal interest at the rate of six percent(6%) per annum from the
finality of judgment until full payment.
SO ORDERED.cralawlawlibrary
G.R. No. 171526 : September 1, 2010
RODEL CRISOSTOMO, Petitioner, v. PEOPLE OF THE
PHILIPPINES,Respondent.
DECISION
DEL CASTILLO, J.:
For review under Rule 45 of the Rules of Court is the
Decision1cralaw dated September 22, 2005 of the Court of Appeals in CA-
G.R. CR.-H.C. No. 01192, affirming with modification the
Decision2cralaw rendered by the Regional Trial Court of Malolos, Bulacan,
Branch 12, in Criminal Case No. 1632-M-2001, finding petitioner Rodel
Crisostomo guilty beyond reasonable doubt of the complex crime of
Robbery with Homicide.
Factual Antecedents
The Information filed against petitioner and his two companions
designated only as John Doe and Peter Doe contained the following
accusatory allegations:chanroblesvirtuallawlibrar
That on or about the 12th day of February, 2001, in the municipality of San
Miguel, province of Bulacan, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and helping one
another, armed with a gun, did then and there willfully, unlawfully and
feloniously, with intent [to] gain and by means of force, violence and
intimidation upon person, enter the gasoline station owned by Jose
Buencamino and once inside, take, rob and carry away with
them P40,000.00, belonging to the said Jose Buencamino, to the damage
and prejudice of the latter in the amount of P40,000.00, and on the
occasion of the commission of the said robbery or by reason thereof, the
herein accused, in furtherance of their conspiracy, did then and there
willfully, unlawfully and feloniously, attack, assault and shoot Janet
Ramos, cashier of said gasoline station, thereby inflicting on her serious
physical injuries which directly caused her death.
Contrary to law.3cralaw
During his arraignment, petitioner entered a plea of not
guilty.4cralaw Thereafter, trial ensued.
Version of the Prosecution
On February 12, 2001, at around 12:20 in the afternoon, Rodelio
Pangilinan (Rodelio) was working at a gasoline station owned by Jose
Buencamino (Jose) at Buliran, San Miguel, Bulacan. He was by the gasoline
tank which was two or three arms length from the cashier's office when
three armed men on board a motorcycle arrived. Two of the men
immediately went to the cashier while the driver stayed on the
motorcycle. Inside the office, one of the men pulled out a fan knife while
the other, armed with a gun, fired a shot at Janet Ramos (Janet), the
cashier. They forcibly took the money in the cash register and the man
with the gun fired a second shot that fatally hit Janet in the right side of
her head. The two armed men returned to their companion waiting by the
motorcycle and together sped away from the scene of the crime.
Rodelio gave a description of the driver of the motorcycle but not of the
two armed men who entered the cashier's office since they had their backs
turned to him. The National Bureau of Investigation (NBI) prepared a
cartographic sketch based on the information provided by Rodelio. Jose,
the owner of the gas station, stated that the stolen money was
worth P40,000.00. Receipts in the amount of P14,500.00 were presented
as funeral expenses.
On February 23, 2001, the petitioner was detained after being implicated
in a robbery that occurred in San Miguel, Bulacan. During his detention,
Rodelio and another gasoline boy arrived and identified him in a police
lineup as one of the three robbers who killed Janet.
Version of the Defense
Petitioner denied committing the crime for which he was charged. He
maintained that the face of the man depicted in the cartographic sketch by
the NBI was completely different from his appearance in the police lineup
in which Rodelio pointed at him as one of the perpetrators. He argued that
the only reason why Rodelio pointed to him in the police lineup was
because he was the only one in handcuffs.
Ruling of the Regional Trial Court
The trial court rendered its Decision convicting petitioner of robbery with
homicide. The dispositive portion reads:chanroblesvirtuallawlibrar
WHEREFORE, finding herein accused RODEL CRISOSTOMO y DE LEON
guilty as principal beyond reasonable doubt of the crime of robbery with
homicide as charged, there being no circumstances, aggravating or
mitigating, found attendant in the commission thereof, he is hereby
sentenced to suffer the penalty of reclusion perpetua, to indemnify the
heirs of victim Janet Ramos in the amount of P75,000.00, the owner or
operator, Jose Buencamino, Jr., of the gasoline station that was robbed, in
the amount of P40,000.00 plus P14,500.00 as funeral expenses (Exh. "H")
defrayed by said owner for its cashier Janet Ramos, as actual damages, and
to pay the costs of the proceedings.
In the service of his sentence said accused, a detention prisoner, shall be
credited with the full time during which he had undergone preventive
imprisonment, pursuant to Art. 29 of the Revised Penal Code.
SO ORDERED.5cralaw
Not satisfied, petitioner filed a Motion for Reconsideration and
Inhibition,6cralawwhich was denied by the trial court in an
Order7cralaw dated January 13, 2003.
Ruling of the Court of Appeals
Upon review of the case pursuant to this Court's ruling in People v.
Mateo,8cralawthe CA affirmed with modification the conviction of
petitioner. The dispositive portion of the CA's Decision
reads:chanroblesvirtuallawlibrar
Page 5 of 71
In VIEW OF ALL THE FOREGOING, the appealed decision is AFFIRMED,
with a modification that the awarded civil indemnity is reduced
from P75,000.00 to P50,000,00. Costs de oficio.
SO ORDERED.9cralaw
Issue
Before us, the petitioner assails the Decision of the CA and raises the
following issue:chanroblesvirtuallawlibrar
WHETHER X X X THE X X X COURT OF APPEALS COMMITTED ERROR IN
NOT HOLDING THAT THE TRIAL COURT GRIEVOUSLY ERRED IN THE
APRPECIATION OF FACTS AND APPLYING THE LAW IN CONVICTING
ACCUSED OF ROBBERY WITH HOMICIDE.10cralaw
Our Ruling
The petition is unmeritorious.
The trial court properly denied the motion for inhibition.
Petitioner claims that his motion for inhibition should have been granted
since his counsel filed a case against the wife of the trial judge involving a
land dispute. Petitioner alleges that the case rendered the trial judge
partial, biased and, thus, incapable of rendering a just and wise decision.
We are not convinced. It must be stressed that as a rule, "a motion to
inhibit must be denied if filed after x x x the Court had already given its
opinion on the merits of the case, the rationale being that 'a litigant cannot
be permitted to speculate upon the action of the court x x x (only to) raise
an objection of this sort after a decision had been
rendered'."11cralaw Here, petitioner's Motion for Reconsideration and
Inhibition was filed on November 29, 200212cralaw after the trial court
rendered its Decision on November 14, 2002. 13cralaw Accordingly, the
trial judge did not commit any impropriety in denying the motion to
inhibit as it came after the case had been decided on the merits.
Further, in a motion for inhibition, "[t]he movant must x x x prove the
ground of bias and prejudice by clear and convincing evidence to
disqualify a judge from participating in a particular trial." 14cralaw "Bare
allegations of partiality x x x [is not sufficient] in the absence of clear and
convincing evidence to overcome the presumption that the judge will
undertake his noble role to dispense justice according to law and evidence
and without fear or favor."15cralaw Petitioner's bare allegations in his
motion to inhibit are not adequate grounds for the disqualification or
inhibition of the trial judge. Thus, credence should not be given to the issue
of alleged prejudice and partiality of the trial judge.
Petitioner is guilty of the complex crime of robbery with homicide.
Robbery with homicide exists "when a homicide is committed either by
reason, or on occasion, of the robbery. To sustain a conviction for robbery
with homicide, the prosecution must prove the following elements: (1) the
taking of personal property belonging to another; (2) with intent to gain;
(3) with the use of violence or intimidation against a person; and[,] (4) on
the occasion or by reason of the robbery, the crime of homicide, as used in
its generic sense, was committed. A conviction requires certitude that the
robbery is the main purpose and objective of the malefactor and the killing
is merely incidental to the robbery. The intent to rob must precede the
taking of human life but the killing may occur before, during or after the
robbery."16cralaw
In this case, the prosecution successfully adduced proof beyond
reasonable doubt that the genuine intention of the petitioner and his
companions was to rob the gasoline station. Rodelio testified that at
around 12:20 in the afternoon of February 12, 2001, the petitioner and his
companions arrived on board a motorcycle at the gas station located at
Buliran, San Miguel, Bulacan. While the petitioner stayed on the
motorcycle, his companions entered the cashier's office. One of them
pulled out a fan knife while the other fired his gun at Janet. After divesting
the amount of P40,000.00, the man with the gun fired a fatal shot to the
head of Janet. The petitioner's companions returned to and boarded their
motorcycle, and sped away together.17cralaw
From the foregoing, it is clear that the overriding intention of the
petitioner and his cohorts was to rob the gasoline station. The killing was
merely incidental, resulting by reason or on occasion of the robbery.
The petitioner attempts to discredit Rodelio, the eyewitness presented by
the prosecution, by asserting that his testimony is in conflict with the
statements in his affidavit. In his testimony, Rodelio said that it was one of
the men who entered the cashier's office who was holding a gun while in
his sworn statement, he alleged that petitioner had a .45 caliber pistol
which was poked at him.
Such an argument fails to impress as discrepancies between sworn
statements and testimonies made at the witness stand do not necessarily
discredit the witness. "Sworn statements/affidavits are generally
subordinated in importance to open court declarations because the
former are often executed when the affiant's mental faculties are not in
such a state as to afford him a fair opportunity of narrating in full the
incident which transpired. Testimonies given during trials are much more
exact and elaborate. Thus, testimonial evidence carries more weight than
sworn statements/affidavits."18cralaw
"Further, to the extent that inconsistencies were in fact shown, they
appear to [this] Court to relate to details of peripheral significance which
do not negate or dissolve the positive identification [by the eyewitness of
the petitioner and his co-accused] as the perpetrators of the
crime."19cralaw
That Rodelio had to be subpoenaed five times and be arrested in order to
testify for the prosecution do not weaken the case against the petitioner
and his cohorts. During cross-examination, Rodelio explained that his
failure to respond immediately to the subpoena was because he does not
know how to go to court. Thus:chanroblesvirtuallawlibrar
Q: Why did you fail to appear before this Honorable Court when you were
first summoned to appear before this court?
A: Because my employer was sick, sir.
COURT:chanroblesvirtuallawlibrar
Q: Who was that employer?
A: Ping Buencamino, your Honor.
ATTY. KLIATCHKO:chanroblesvirtuallawlibrar
Q: Assuming that he is sick why did you not go to this Honorable Court?
A: I have no companion. I have no idea.
Q: You have no idea about what?
A: I do not know how to come to this court, sir. 20cralaw
Even assuming that Rodelio was initially reluctant to testify and get
involved in the ensuing criminal prosecution against the petitioner and his
Page 6 of 71
co-accused, this "is but normal and does not by itself affect [his]
credibility."21cralaw
The petitioner also avers that he was not the person depicted in the
cartographic sketch. However, "a cartographic sketch, unlike a
photograph, is only intended to give the law enforcers a general idea of the
likeness of a suspect and is never expected to exactly resemble his actual
facial appearance. Even the description of the suspect given in the
cartographic sketch may not be unerringly exact."22cralaw What is
important is the fact that the petitioner was positively identified by
Rodelio as the perpetrator of the crime even without a moustache and
curly hair.
We are not likewise impressed with petitioner's assertion that the case
against him was weakened with the failure to present Reinerio, the other
eyewitness to the commission of the crime and one of the prosecution's
proposed witnesses. As a rule, "the prosecution has the exclusive
prerogative to determine whom to present as witnesses. [It] need not
present each and every witness but only such as may be needed to meet
the quantum of proof necessary to establish the guilt of the accused
beyond reasonable doubt."23cralaw Here, the testimony of Reinerio would
merely corroborate the statements of Rodelio on the witness stand, which
when considered together with the other evidence presented by the
prosecution, established beyond reasonable doubt the culpability of the
petitioner and his cohorts. Further, there is nothing on record which
would show that Rodelio was actuated by ill motive or hate in imputing a
serious offense of robbery with homicide against the petitioner.
We are also not impressed with the petitioner's insistence that his
identification in the police lineup was highly irregular. There is simply no
factual basis to prove that he was the only suspect in the lineup with
handcuffs that prompted Rodelio to point to him as the suspect. It is worth
stressing that the police investigators are presumed to have performed
their duties regularly and in good faith.24cralaw In the absence of
sufficient proof to overturn this presumption, petitioner's positive
identification by Rodelio remains free from any stain of wrongdoing.
Besides, not only did Rodelio identify the petitioner in the police lineup,
he also positively identified petitioner when he testified in court.
The petitioner's contention that he did not conspire with the other
accused in the commission of the crime cannot be given credence. There
is no doubt that the petitioner participated actively in the commission of
the crime. He was positively identified as the driver of the motorcycle with
his two male companions on board. They arrived together at the gasoline
station. His cohorts then went inside the office to conduct the robbery
while he remained on the motorcycle and waited for his cohorts. After his
two companions stole the money and killed the cashier, they sped away
from the scene of the crime in each other's company using the same
motorcycle.
Against the testimony of the prosecution's eyewitness, the petitioner
could only rely on the defense of denial. This defense, however, deserves
scant consideration since "denial cannot prevail over the positive
testimony of a witness. A mere denial, just like alibi, is a self-serving
negative evidence which cannot be accorded greater evidentiary weight
than the declaration of credible witnesses who [testified] on affirmative
matters."25cralaw
"The concerted manner [in which the petitioner and his] companions
perpetrated the crime showed beyond reasonable doubt the presence of
conspiracy. Where conspiracy is established, it matters not who among
the accused actually shot and killed the victim. The consistent doctrinal
rule is that when a homicide takes place by reason or on the occasion of
the robbery, all those who took part shall be guilty of the special complex
crime of robbery with homicide whether or not they actually participated
in the killing, unless there is proof that they had endeavored to prevent
the killing."26cralaw There was no evidence adduced in this case that
petitioner attempted to prevent his companions from shooting the victim.
"Thus, regardless of the acts individually performed by [the petitioner]
and his co-accused, and applying the basic principle in conspiracy that the
'act of one is the act of all,' [the petitioner] is guilty as a co-conspirator.
Being co-conspirators, the criminal liabilities of the [petitioner and his co-
accused] are one and the same."27cralaw
The Proper Penalty
The crime of robbery with homicide is punishable under Article 294 (as
amended by Republic Act No. 7659) of the Revised Penal Code by
reclusion perpetua to death. Article 6328cralaw of the Revised Penal Code
states that when the law prescribes a penalty consisting of two indivisible
penalties, and the crime is neither attended by mitigating nor aggravating
circumstances, the lesser penalty shall be imposed. Considering that no
modifying circumstance was proven to have attended the commission of
the crime, the trial court correctly sentenced the petitioner to suffer the
penalty of reclusion perpetua.29cralaw
The Civil Liabilities
In robbery with homicide, civil indemnity and moral damages in the
amount of P50,000.00 each is granted automatically in the absence of any
qualifying aggravating circumstances.30cralaw These awards are
mandatory without need of allegation and evidence other than the death
of the victim owing to the fact of the commission of the crime. In this case,
the CA properly awarded the amount of P50,000.00 as civil indemnity. In
addition, we also award the amount of P50,000.00 as moral
damages.31cralaw
To be entitled to compensatory damages, it is necessary to prove the
actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and the best evidence obtainable to the injured
party. "[R]eceipts should support claims of actual
damages."32cralaw Thus, as correctly held by the trial court and affirmed
by the CA, the amount of P14,500.00 incurred as funeral expenses can be
sustained since these are expenditures supported by receipts. Also, the
courts below correctly held petitioner liable to return the amount
of P40,000.00 which was stolen from the gas station before the victim was
shot and killed.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No.
01192 that affirmed with modification the Decision of the Regional Trial
Court of Malolos, Bulacan, Branch 12, in Criminal Case No. 1632-M-2001
is AFFIRMED with further MODIFICATION that petitioner is hereby
ordered to pay the heirs of the victim moral damages in the amount
of P50,000.00.
SO ORDERED.
People of the Philippines vs. Marlon Albert De leon
DECISION
PERALTA, J.:
This is an appeal from the Decision[1] of the Court of Appeals
(CA), affirming with modification the Decision[2] of the Regional Trial
Court (RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon
Lambert De Leon y Homo guilty beyond reasonable doubt of the crime of
robbery with homicide.
The factual and procedural antecedents are as follows:
According to the prosecution, in the early morning, around 2
o'clock of January 7, 2000, Eduardo Zulueta and Fortunato Lacambra III,
both gasoline boys; Julieta Amistoso, cashier; and Edralin Macahis,
security guard; all employees of Energex Gasoline Station, located
Page 7 of 71
at Barangay Guinayan, San Mateo, Rizal, were on duty when a mint green-
colored Tamaraw FX arrived for service at the said gasoline station. [3]
Eduardo Zulueta was the one who attended to the said vehicle.
He went to the drivers side in order to take the key of the vehicle from the
driver so that he could open the gas tank. He saw through the lowered
window shield that there were about six to seven persons aboard the
vehicle. He proceeded to fill up P50.00 worth of diesel in the gas
tank. After doing this, he returned the key to the driver. While returning
the key, the driver told him that the engine of the vehicle would not
start.[4] Eduardo Zulueta offered to give the vehicle a push. While Eduardo
Zulueta and fellow gasoline boy Fortunato Lacambra III were positioned
at the back of the vehicle, ready to push the same, the six male passengers
of the same vehicle, except the driver, alighted and announced a hold-up.
They were armed with a shotgun and .38 caliber pistol.[5]
Fortunato Lacambra III was ordered to lie down,[6] while
Eduardo Zulueta was directed to go near the Car Wash Section. [7] At that
instance, guns were poked at them.[8]
Appellant, who guarded Eduardo Zulueta, poked a gun at the
latter and took the latter's wallet containing a pawnshop ticket
and P50.00, while the companion of the former, hit the latter on his nape
with a gun.[9]
Meanwhile, four members of the group went to the cashier's
office and took the money worth P3,000.00.[10] Those four robbers were
also the ones who shot Edralin Macahis in the stomach. [11] Thereafter, the
same robbers took Edralin Macahis' service firearm. [12]
After he heard successive gunshots, Eduardo Zulueta saw
appellant and his companions immediately leave the place.[13] The robbers
boarded the same vehicle and proceeded toward San Mateo,
Rizal.[14] When the robbers left, Eduardo Zulueta stood up and found
Julieta Amistoso, who told him that the robbers took her bag and
jewelry. He also saw that Edralin Macahis had a gunshot wound in the
stomach. He immediately hailed a vehicle which transported the injured
Edralin Macahis to the hospital.[15] Later on, Edralin Macahis died at the
hospital due to the gunshot wound.[16]
The following day, Eduardo Zulueta identified appellant as one
of the robbers who poked a gun at him.[17]
However, according to appellant, from January 4 to 6, 2000, he
stayed at the house of his Tita Emma at Pantok, Binangonan, Rizal, helping
the latter in her canteen. On the evening of January 6, at approximately 9
o'clock, appellant asked permission from his Tita Emma to go to
Antipolo. Catherine Homo, appellant's cousin and the latter's younger
brother, accompanied appellant to the terminal. While waiting for a ride,
the vehicle, a Tamaraw FX, of a certain Christian Gersalia, a relative of
appellant and Catherine Homo, passed by. Catherine Homo asked
Christian Gersalia if he would allow appellant to hitch a ride on his
vehicle. Christian Gersalia agreed. Aside from Christian Gersalia, there
were other passengers in the said vehicle.[18]
When the vehicle reached Masinag, where appellant was
supposed to alight, he was not allowed to do so; instead, he was asked by
the other passengers to join them in their destination. While on the road,
appellant fell asleep. When he woke up, they were in a gasoline station.He
then saw Christian Gersalia and the other passengers conducting a hold-
up. He never left the vehicle and was not able to do anything because he
was overwhelmed with fear. After he heard the gunshots, Christian
Gersalia and the other passengers went to the vehicle and proceeded
towards Marikina. On their way, they were followed by policemen who
fired at them. The other passengers fired back at the policemen. It was
then that the vehicle hit a wall prompting the other passengers to scamper
in different directions leaving him behind. When the policemen arrived,
he was immediately arrested.[19]
As a result of the above incident, four Informations for Robbery
with Homicide were filed against appellant, Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, an
alias Rey, an alias Jonard, an alias Precie, and an alias Renato, which read
as:
Criminal Case No. 4747
That on or about the 7th day of January 2000, in the
Municipality of San Mateo, Province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together with
Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato whose true names, identities and
present whereabouts are still unknown and still at-large, and
conspiring and mutually helping and assisting one another,
while armed with unlicensed firearms and acting as a band, with
intent of gain with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of motor vehicle
and by means of force, violence and intimidation, employed
upon ENERGEX GASOLINE STATION, owned by Regino C.
Natividad, and represented by Macario C. Natividad, did then
and there willfully, unlawfully and feloniously rob, steal and
carry away its cash earnings worth P3,000.00, to the damage
and prejudice of said Energex Gasoline Station in the aforesaid
amount of P3,000.00 and on the occasion of the said robbery,
the above-named accused, while armed with unlicensed
firearms with intent to kill, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey,
Alias Jonard, Alias Precie and Alias Renato, whose true names,
identities and present whereabouts are still unknown and still
at-large, did then and there willfully, unlawfully and feloniously
attack, assault and shoot one EDRALIN MACAHIS, a Security
Guard of Energex Gasoline Station, thereby inflicting upon him
gunshot wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4748
That on or about the 7th day of January 2000 in the
Municipality of San Mateo, Province of Rizal, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating , together with
Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and still at-large and
conspiring and mutually helping and assisting one another,
while armed with unlicensed firearms and acting as a band, with
intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle
and by means of force, violence and intimidation, employed
upon the person of JULIETA A. AMISTOSO, the Cashier of
Energex Gasoline Station, did then and there willfully,
unlawfully and feloniously rob, steal and carry away the
following, to wit:
a) One (1) ladies ring with sapphire stone valued
at P1,500.00
b) One (1) Omac ladies wristwatch valued
at P2,000.00
c) Guess black bag valued at P500.00
d) Leather wallet valued at P150.00
e) White T-Shirt valued at P175.00
to her damage and prejudice in the total amount of P4,325.00
and on the occasion of the said robbery, the above-named
accused while armed with unlicensed firearms with intent to
kill, conspiring and confederating together with Rudy Gersalia,
Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela,
Page 8 of 71
Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias
Renato, whose true names, identities and present whereabouts
are still unknown and still at-large, did then and there willfully,
unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline
Station, thereby inflicting upon him gunshot wound on his trunk
which directly caused his death.
Contrary to law.
Criminal Case No. 4749
That on or about the 7th day of January 2000, in the
Municipality of San Mateo, Province of Rizal, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together with
Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and still at-large, and
conspiring and mutually helping and assisting one another,
while armed with unlicensed firearms and acting as a band, with
intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle
and by means of force, violence and intimidation, employed
upon EDRALIN MACAHIS, a Security Guard of Energex Gasoline
Station, did then and there willfully, unlawfully and feloniously
rob, steal, and carry away his service firearm .12 gauge shotgun
with serial number 13265 valued at P12,000.00 owned by Alert
and Quick (A-Q) Security Services Incorporated represented by
its General Manager Alberto T. Quintos to the damage and
prejudice of said Alert and Quick (A-Q) Security Services
Incorporated in the aforesaid amount of P12,000.00 and on the
occasion of the said robbery the above-named accused, while
armed with unlicensed firearms, with intent to kill conspiring
and confederating together with Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy
Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato,
whose true names, identities and present whereabouts are still
unknown and still at-large, did then and there willfully,
unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, thereby inflicting upon him gunshot wound
on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4750
That on or about the 7th day of January 2000, in the
Municipality of San Mateo, Province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together with
Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and still at-large and
conspiring and mutually helping and assisting one another,
while armed with unlicensed firearms and acting as a band, with
intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle
and by means of force, violence and intimidation, employed
upon the person of EDUARDO ZULUETA, a gasoline boy of
Energex Gasoline Station, did then and there willfully,
unlawfully and feloniously rob, steal and carry away the
following to wit:
 a) Pawnshop Ticket from M. Lhuiller
Pawnshop for one (1) black Citizen men's watch
(automatic) valued at P2,000.00
b) Cash money worth P50.00
to his damage and prejudice in the total amount of P2,050.00
and on the occasion of the said robbery, the above-named
accused, while armed with unlicensed firearms with intent to
kill, conspiring and confederating together with Rudy Gersalia,
Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela,
Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias
Renato, whose true names, identities and present whereabouts
are still unknown and still at-large, did then and there willfully,
unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline
Station, thereby inflicting upon him gunshot wound on his trunk
which directly caused his death.
Contrary to law.
Upon arraignment on March 23, 2000, appellant, with the
assistance of counsel de parte, entered a plea of not guilty on all the
charges.Thereafter, trial on the merits ensued.
The prosecution presented five witnesses, namely: Macario C.
Natividad,[20] then officer-in-charge of Energex Gasoline Station where the
incident took place; Edito Macahis,[21] a cousin of the deceased security
guard Edralin Macahis; Fortunato Lacambra III, [22] a gasoline boy of the
same gas station; Eduardo Zulueta,[23] also a gasoline boy of the same gas
station, and Alberto Quintos,[24] general manager of Alert and Quick
Security Services, Inc., where the deceased security guard was employed.
The defense, on the other hand, presented two witnesses,
namely: Catherine Homo,[25] a cousin of appellant and the
appellant[26]himself.
On December 20, 2001, the RTC rendered its
Decision[27] convicting appellant beyond reasonable doubt of all the
charges against him, the dispositive portion of which reads:
1. In Criminal Case No. 4747, finding accused Marlon
Albert de Leon y Homo guilty beyond reasonable doubt of the
crime of Robbery with Homicide, as defined and penalized
under No. 1 of Art. 294 of the Revised Penal Code, as amended
by Sec. 9 of R.A. 7659, in relation to Sec. 1 ofP.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with
other malefactors who have, to date, remained at-large, and
sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance; to pay Energex Gasoline Station
owned by Regino Natividad and represented by Macario C.
Natividad the amount of P3,000.00 as compensatory damages
and to pay the costs;
2. In Crim. Case No. 4748, finding accused Marlon
Albert de Leon y Homo guilty beyond reasonable doubt of the
crime of Robbery with Homicide, as defined and penalized
under No. 1 of Art. 294 of the Revised Penal Code, as amended
by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with
other malefactors who have, to date, remained at-large, and
sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance, and to pay the costs;
3. In Crim. Case No. 4749, finding accused Marlon
Albert de Leon y Homo guilty beyond reasonable ground of the
crime of Robbery with Homicide, as defined and penalized
Page 9 of 71
under No. 1 of Art. 294 of the Revised Penal Code, as amended
by Sec. 9 of R.A. 7659, in relation to Sec. 1 ofP.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with
other malefactors who have, to date, remained at-large, and
sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance; to indemnify the heirs of Edralin
Macahis in the amount of P50,000.00 as death indemnity; to
pay P12,000.00 as compensatory damages for the stolen service
firearm if restitution is no longer possible and P50,000.00 as
moral damages, and to pay the costs;
4. In Crim. Case No. 4750, finding accused Marlon
Albert de Leon y Homo guilty beyond reasonable doubt of the
crime of Robbery with Homicide, as defined and penalized
under No. 1 of Art. 294 of the Revised Penal Code, as amended
by Sec. 9 of R.A 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with
other malefactors who have, to date, remained at-large, and
sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an
aggravating circumstance and to pay Eduardo Zulueta, victim of
the robbery, in the amount of P2,050.00 as compensatory
damages for the stolen properties if restitution is no longer
possible and to pay the costs.
As against accused Rudy Gersalia and Christian
Gersalia, who have, to date, remained at-large, let a warrant of
arrest be issued against them and let these cases be, in the
meantime, sent to the archives without prejudice to their
reinstatement upon apprehension of the said accused.
As against accused Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and are still at-large, let
these cases be, in the meantime, sent to the archives without
prejudice to their reinstatement upon the identification and
apprehension of the said accused.
SO ORDERED.
The cases were appealed to this Court, however, on September,
21, 2004,[28] in conformity with the Decision dated July 7, 2004 in G.R. Nos.
147678-87 entitled The People of the Philippines v. Efren Mateo y Garcia,
modifying the pertinent provisions of the Revised Rules of Criminal
Procedure, more particularly Sections 3 and 10 of Rule 125 and any other
rule insofar as they provide for direct appeals from the RTCs to this Court
in cases where the penalty imposed is death, reclusion perpetua or life
imprisonment, as well as the Resolution of this Court, en banc dated
September 19, 1995, in Internal Rules of the Supreme Court in cases
similarly involving the death penalty, pursuant to the Court's power to
promulgate rules of procedure in all courts under Article VII, Section 5 of
the Constitution, and allowing an intermediate review by the CA before
such cases are elevated to this Court. This Court transferred the cases to
the CA for appropriate action and disposition.
The CA, on June 29, 2007,[29] affirmed with modification, the
Decision of the RTC, with the dispositive portion reading:
WHEREFORE, the appealed decision is AFFIRMED
with MODIFICATION. Accused Marlon Albert de Leon y Homo is
hereby found guilty beyond reasonable doubt of the crime of
Robbery with Homicide of only one count.
Given the passage of Republic Act 9346 which took
effect on 24 June 2006, the penalty imposed upon Marlon de
Leon y Homo is hereby reduced or commuted to reclusion
perpetua.
SO ORDERED.

On December 10, 2007, this Court accepted the appeal, [30] the
penalty imposed being reclusion perpetua.
The Office of the Solicitor General (OSG), on February 8, 2008,
filed its Manifestation and Motion In Lieu of the Supplemental
Brief[31] dated February 4, 2008 stating that it will no longer file a
supplemental brief, considering that appellant has not raised any new
issue that would require the filing of a supplemental brief.
Appellant filed a Manifestation[32] on February 22, 2008 stating
that he re-pleads and adopts his Appellant's Brief and Reply Brief as
Supplemental Brief.
Appellant, in his Brief,[33] assigned the following errors:
I occasion of the robbery are integrated into one and indivisible
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-
APPELLANT A CO-CONSPIRATOR IN THE COMMISSION OF THE
CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE THE SAME AND GUILT BEYOND
REASONABLE DOUBT.
II
ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY
OF ROBBERY WITH HOMICIDE, THE TRIAL COURT GRAVELY
ERRED IN IMPOSING FOUR (4) DEATH PENALTIES DESPITE
THAT THE CRIME CHARGED WAS PRODUCED BY ONE SINGLE
ACT WHICH SHOULD BE METED WITH A SINGLE PENALTY.
The OSG, in its Appellee's Brief,[34] insisted that all the elements
of the crime and the appellant's participation in the crime had been
established.
Appellant, in his Reply Brief,[35] argued that the penalty should
not be death, but only reclusion perpetua, because the aggravating
circumstance of use of unlicensed firearm, although alleged in the
Information, was not alleged with specificity.
Article 294, paragraph 1 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation
of persons Penalties. - Any person guilty of robbery with the use of
violence against or any person shall suffer:
1. The penalty of reclusion perpetua to death, when by
reason or on occasion of the robbery, the crime of homicide shall
have been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.
In People v. De Jesus,[36] this Court had exhaustively discussed
the crime of robbery with homicide, thus:
For the accused to be convicted of the said crime, the
prosecution is burdened to prove the confluence of the
following elements:
(1) the taking of personal property is committed with
violence or intimidation against persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion
thereof, homicide is committed.[37]
In robbery with homicide, the original criminal design
of the malefactor is to commit robbery, with homicide
perpetrated on the occasion or by reason of the robbery. [38] The
intent to commit robbery must precede the taking of human
life.[39] The homicide may take place before, during or after the
robbery. It is only the result obtained, without reference or
distinction as to the circumstances, causes or modes or persons
Page 10 of 71
intervening in the commission of the crime that has to be taken
into consideration.[40] There is no such felony of robbery with
homicide through reckless imprudence or simple negligence.
The constitutive elements of the crime, namely, robbery with
homicide, must be consummated.
It is immaterial that the death would supervene by
mere accident; or that the victim of homicide is other than the
victim of robbery, or that two or more persons are killed, or that
aside from the homicide, rape, intentional mutilation, or
usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the
victim of homicide is one of the robbers; the felony would still
be robbery with homicide. Once a homicide is committed by or
on the occasion of the robbery, the felony committed is robbery
with homicide. All the felonies committed by reason of or on the
felony of robbery with homicide. The word homicide is used in
its generic sense. Homicide, thus, includes murder, parricide,
and infanticide.
Intent to rob is an internal act, but may be inferred
from proof of violent unlawful taking of personal property.
When the fact of asportation has been established beyond
reasonable doubt, conviction of the accused is justified even if
the property subject of the robbery is not presented in court.
After all, the property stolen may have been abandoned or
thrown away and destroyed by the robber or recovered by the
owner.[41] The prosecution is not burdened to prove the actual
value of the property stolen or amount stolen from the victim.
Whether the robber knew the actual amount in the possession
of the victim is of no moment, because the motive for robbery
can exist regardless of the exact amount or value involved. [42]
When homicide is committed by reason or on the
occasion of robbery, all those who took part as principals in the
robbery would also be held liable as principals of the single and
indivisible felony of robbery with homicide, although they did
not actually take part in the killing, unless it clearly appears that
they endeavored to prevent the same.[43]
If a robber tries to prevent the commission of
homicide after the commission of the robbery, he is guilty only
of robbery and not of robberywith homicide. All those who
conspire to commit robbery with homicide are guilty as
principals of such crime, although not all profited and gained
from the robbery. One who joins a criminal conspiracy adopts
the criminal designs of his co-conspirators and can no longer
repudiate the conspiracy once it has materialized. [44]
Homicide is said to have been committed by reason or
on the occasion of robbery if, for instance, it was committed (a)
to facilitate the robbery or the escape of the culprit; (b) to
preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or, (d) to eliminate
witnesses in the commission of the crime. As long as there is a
nexus between the robbery and the homicide, the latter crime
may be committed in a place other than the situs of the robbery.
From the above disquisition, the testimonies of the witnesses,
and pieces of evidence presented by the prosecution, the crime of robbery
with homicide was indeed committed. There was no mistaking from the
actions of all the accused that their main intention was to rob the gasoline
station and that on occasion of such robbery, a homicide was
committed. The question now is whether there was conspiracy in the
commission of the crime. According to appellant, the prosecution failed to
prove that he was a co-conspirator. However, this Court finds no merit to
appellant's argument.
If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a
part so that their combined acts, though apparently independent, were in
fact connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment, a conspiracy may be inferred
though no actual meeting among them to concert means is proved. That
would be termed an implied conspiracy.[45] The prosecution was able to
prove the presence of an implied conspiracy. The witnesses were able to
narrate in a convincing manner, the circumstances surrounding the
commission of the robbery and positively identified appellant as one of
the robbers. Witness Eduardo Zulueta testified that appellant was one of
the robbers who poked a gun at him, thus:
Q. Were you able to identify those two armed male persons who
poked their guns at you?
A: Yes, sir.
Q: Kindly look around inside this courtroom and inform the Hon.
Court whether those two (2) persons who poked their guns at
you were (sic) present now?
A: Only one, sir, and there he is.
(At this juncture, witness pointing to a certain person who
answered by the name of MARLON ALBERT DE LEON when
asked.)
Q: This Marlon De Leon was he the one who guarded you in the
carwash or not?
A: Yes, sir.
Q: Now, what happened to you at the carwash where this Marlon
De Leon was guarding you?
A: His gun was poked at me, sir.
Q: What else transpired, Mr. Witness, or what else happened to
you aside from that?
A: He hit me with his gun on my nape, sir.
Q: What else, Mr. Witness?
A: He got my wallet from my pocket, sir.
Q: Who hit you with a gun?
A: His other companion, sir.[46]
Appellant was also identified by witness Fortunato Lacambra
III, thus:
Q: What about that person who ordered Zulueta to go to the
carwash section and hit him, was he also armed?
A: Yes, sir.
Q: What kind of firearm was he carrying then?
A: Also .38 caliber, sir.
Q: Were you able to identify or recognize that person who
approached and ordered Zulueta to go to the carwash section?
A: Yes, sir.
Q: If that person is inside the courtroom, will you be able to
identify him?
A: Yes, sir.
Page 11 of 71
Q: Kindly point to him?
A: That man, sir. (Witness pointed to a person who answered by
the name of Marlon Albert de Leon).[47]
Therefore, it can be inferred from the role appellant played in
the commission of the robbery, that a conspiracy existed and he was part
of it. To be a conspirator, one need not participate in every detail of the
execution; he need not even take part in every act or need not even know
the exact part to be performed by the others in the execution of the
conspiracy. Each conspirator may be assigned separate and different tasks
which may appear unrelated to one another but, in fact, constitute a whole
collective effort to achieve their common criminal objective. [48] Once
conspiracy is shown, the act of one is the act of all the conspirators. The
precise extent or modality of participation of each of them becomes
secondary,[49] since all the conspirators are principals.
As to the credibility of the witnesses, the RTC's findings must
not be disturbed. The well-settled rule in this jurisdiction is that the trial
courts findings on the credibility of witnesses are entitled to the highest
degree of respect and will not be disturbed on appeal without any clear
showing that it overlooked, misunderstood or misapplied some facts or
circumstances of weight or substance which could affect the result of the
case.[50]
For his defense, appellant merely denied participating in the
robbery. However, his presence during the commission of the crime was
well-established as appellant himself testified as to the matter. Granting
that he was merely present during the robbery, his inaction does not
exculpate him. To exempt himself from criminal liability, a conspirator
must have performed an overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the commission
thereof.[51] Appellant offered no evidence that he performed an overt act
neither to escape from the company of the robbers nor to prevent the
robbery from taking place. His denial, therefore, is of no value. Courts
generally view the defenses of denial and alibi with disfavor on account of
the facility with which an accused can concoct them to suit his defense. As
both evidence are negative and self-serving, they cannot attain more
credibility than the testimonies of prosecution witnesses who testify
clearly, providing thereby positive evidence on the various aspects of the
crime committed.[52]
Consequently, the CA was correct in ruling that appellant was
guilty only of one count of robbery with homicide. In the crime of robbery
with homicide, there are series of acts, borne from one criminal resolution,
which is to rob. As decided[53] by the Court of Appeals:
A continued (continuous or continuing) crime is
defined as a single crime, consisting of a series of acts but all
arising from one criminal resolution.[54] Although there is a
series of acts, there is only one crime committed; hence, only one
penalty shall be imposed.[55]
In the case before Us, [appellant] and his companions
intended only to rob one place; and that is the Energex gasoline
station. That they did; and in the process, also took away by force
the money and valuables of the employees working in said
gasoline station. Clearly inferred from these circumstances are
the series of acts which were borne from one criminal
resolution. A continuing offense is a continuous, unlawful act or
series of acts set on foot by a single impulse and operated by
an unintermittent force, however long a time it may
occupy.[56] This can be said of the case at hand.
Akin to the extant case is that of People v. De la
Cruz,[57] wherein the robbery that took place in several houses
belonging to different persons, when not absolutely
unconnected, was held not to be taken as separate and distinct
offenses. They formed instead, component parts of the general
plan to despoil all those within the vicinity. In this case, the
Solicitor General argued that the [appellant] had committed
eight different robberies, because the evidence shows distinct
and different acts of spoilation in different houses, with several
victimized persons.[58] The Highest Tribunal, however, ruled
that the perpetrated acts were not entirely distinct and
unconnected from one another.[59] Thus, the single offense or
crime.
Now, this Court comes to the penalty imposed by the CA. The
decision[60] merely states that, in view of the enactment of R.A. 9346, the
sentence of Death Penalty, imposed upon appellant, is automatically
commuted to reclusion perpetua, but is silent as to how it had arrived into
such a conclusion.
Under Article 294 of the Revised Penal Code, as amended by R.A.
No. 7659, robbery with homicide is punishable by reclusion perpetua to
death, which are both indivisible penalties. Article 63 of the same Code
provides that, in all cases in which the law prescribes a penalty composed
of two indivisible penalties, the greater penalty shall be applied when the
commission of the deed is attended by one aggravating circumstance.[61] It
must be remembered that the Informations filed with the RTC alleged the
aggravating circumstance of the use of unlicensed firearm. Pursuant to the
third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294,
such use of an unlicensed firearm is a special and not a generic
aggravating circumstance in the homicide or murder committed. As
explained by this Court in Palaganas v. People:[62]
Generic aggravating circumstances are those that
generally apply to all crimes such as those mentioned in Article
14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the
Revised Penal Code. It has the effect of increasing the penalty for
the crime to its maximum period, but it cannot increase the
same to the next higher degree. It must always be alleged and
charged in the information, and must be proven during the trial
in order to be appreciated.[63] Moreover, it can be offset by an
ordinary mitigating circumstance.
On the other hand, special aggravating circumstances
are those which arise under special conditions to increase the
penalty for the offense to its maximum period, but the same
cannot increase the penalty to the next higher degree. Examples
are quasi-recidivism under Article 160 and complex crimes
under Article 48 of the Revised Penal Code. It does not change
the character of the offense charged.[64] It must always be
alleged and charged in the information, and must be proven
during the trial in order to be appreciated. [65] Moreover, it
cannot be offset by an ordinary mitigating circumstance.
It is clear from the foregoing that the meaning and
effect of generic and special aggravating circumstances are
exactly the same except that in case of generic aggravating, the
same CAN be offset by an ordinary mitigating circumstance
whereas in the case of special aggravating circumstance, it
CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances
abovementioned, there is also an aggravating circumstance
provided for under Presidential Decree No. 1866,[66] as
amended by Republic Act No. 8294,[67] which is a special law. Its
pertinent provision states:
If homicide or murder is committed with the use of
an unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.
In interpreting the same provision, the trial court
reasoned that such provision is silent as to whether it is generic
or qualifying.[68] Thus, it ruled that when the law is silent, the
same must be interpreted in favor of the accused.[69] Since a
generic aggravating circumstance is more favorable to
petitioner compared to a qualifying aggravating circumstance,
as the latter changes the nature of the crime and increase the
Page 12 of 71
penalty thereof by degrees, the trial court proceeded to declare
that the use of an unlicensed firearm by the petitioner is to be
considered only as a generic aggravating circumstance. [70] This
interpretation is erroneous, since we already held in several
cases that with the passage of Republic Act No. 8294 on 6 June
1997, the use of an unlicensed firearm in murder or homicide is
now considered as a SPECIAL aggravating circumstance and not
a generic aggravating circumstance.[71] Republic Act No. 8294
applies to the instant case since it took effect before the
commission of the crimes in 21 April 1998. Therefore, the use of
an unlicensed firearm by the petitioner in the instant case
should be designated and appreciated as a SPECIAL aggravating
circumstance and not merely a generic aggravating
circumstance.
In another case,[72] this Court ruled that, the existence of the
firearm can be established by testimony, even without the presentation of
the firearm.[73] In the said case, it was established that Elmer and
Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot wounds.
The ballistic examination of the slugs recovered from the place of the
incident showed that they were fired from a .30 carbine rifle and a .38
caliber firearm. The prosecution witnesses positively identified appellant
therein as one of those who were holding a long firearm. It was also
established that the same appellant was not a licensed firearm holder.
Hence, this Court ruled that the trial court and the CA correctly
appreciated the use of unlicensed firearm as an aggravating circumstance.
After a careful study of the records of the present case, this
Court found that the use of unlicensed firearm was not duly proven by the
prosecution. Although jurisprudence dictates that the existence of the
firearm can be established by mere testimony, the fact that appellant was
not a licensed firearm holder must still be established. The prosecution
failed to present written or testimonial evidence to prove that appellant
did not have a license to carry or own a firearm, hence, the use of
unlicensed firearm as an aggravating circumstance cannot be appreciated.
Finally, it is worth noting that the RTC ordered appellant to
indemnify the heirs of Edralin Macahis the amount of P50,000.00 as death
indemnity, P12,000.00 as compensatory damages for the stolen service
firearm if restitution is no longer possible and P50,000.00 as moral
damages. Actual damages were never proven during the trial. Hence, this
Court's rulings[74] on temperate damages apply, thus:
In People vs. Abrazaldo,[75] we laid down the doctrine
that where the amount of actual damages for funeral expenses
cannot be determined because of the absence of receipts to
prove them, temperate damages may be awarded in the amount
of P25,000[76] This doctrine specifically refers to a situation
where no evidence at all of funeral expenses was presented in
the trial court. However, in instances where actual expenses
amounting to less than P25,000 are proved during the trial, as
in the case at bar, we apply the ruling in the more recent case
of People vs. Villanueva[77] which modified the Abrazaldo
doctrine. In Villanueva, we held that when actual damages
proven by receipts during the trial amount to less than P25,000,
the award of temperate damages for P25,000 is justified in lieu
of the actual damages of a lesser amount. To rule otherwise
would be anomalous and unfair because the victims heirs who
tried but succeeded in proving actual damages of an amount less
than P25,000 would be in a worse situation than those who
might have presented no receipts at all but would now be
entitled to P25,000 temperate damages.[78]
WHEREFORE, the Decision dated June 29, 2007 of the Court of
Appeals is hereby AFFIRMED with MODIFICATION. Appellant Marlon
Albert de Leon y Homo is hereby found guilty beyond reasonable doubt of
the crime of Robbery with Homicide, the penalty of which, is reclusion
perpetua in view of the absence of any mitigating or aggravating
circumstance. Appellant is also liable to pay the heirs of the
victim, P25,000.00 as temperate damages, in addition to the other civil
indemnities and damages adjudged by the Regional Trial Court, Branch
76, San Mateo, Rizal.
SO ORDERED.
G.R. No. 134815 May 27, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
EDUARDO DE JESUS y ENRILE, appellant.
DECISION
PER CURIAM:
This is an automatic review of the Decision1 of the Regional Trial Court of
Makati, Branch 64, convicting the appellant of robbery with homicide and
sentencing him to suffer the death penalty.
The Case for the Prosecution
SPO3 Eugenio Ybasco was a policeman assigned to the Makati Police
Station, Substation Block No. 6 since March 16, 1973. 3 After his tour of
duty, he worked on the sly for a money changer in the vicinity of the
Intercontinental Hotel and the Rustan’s Supermarket in Makati City. He
delivered money for his employer every afternoon. The money was placed
in a plastic bag3 and he used a bicycle for this extra job.4 Everytime Ybasco
delivered money to his employer, he passed by Yolanda dela Rapa who
was selling cigarettes in the vicinity of the Rustan’s Supermarket and the
Kimpura Restaurant, Ayala Center, Makati City. 5 Ybasco was a familiar
face among the other cigarette vendors in the area, namely, Lydia, Gina,
Jing and Romy.6 Dela Rapa called him "Sir Ybasco."7
Sometime in February 1994, Dante Manansala, a native of Barangay
Canlubang, Calamba, Laguna,8 appellant Eduardo de Jesus, a native of
Barangay Tabuyok, Apalit, Pampanga,9 and Crispin Del Rosario, the
appellant’s brother-in-law10 and a native of Barangay Tadloc, Los Baños,
Laguna,11 agreed to stage a robbery in the afternoon of March 7, 1994. On
February 15, 1994, the appellant told Del Rosario of the planned
robbery.12 Del Rosario was told that the financier for the heist was
Christopher Nash, a British national residing in the Philippines.13 The
appellant knew that Ybasco was to deposit US$250,000 in the bank every
afternoon for his employer. They decided to waylay Ybasco on his way to
the bank.
At 8:00 a.m. on March 7, 1994, upon Nash’s instructions, Del Rosario and
the appellant took a Toyota Corolla car with Plate No. TAX 732 from
Rolando Fajardo in Tanauan, Batangas. The car was owned by
Nash.14 While the appellant, Del Rosario and Manansala were on board the
car, their confederate, Tonton, had lunch somewhere in Batangas. The
group arrived in the vicinity of the parking lot at the Ayala Center near the
Rustan’s Supermarket and the Kimpura Restaurant on board the same
car.15 The appellant was armed with a caliber .45 handgun. 16Manansala,
the appellant and Del Rosario alighted, and conducted a surveillance of the
area. Tonton remained in the car. Manansala instructed Del Rosario to
position himself as a lookout at the corner of the Rustan’s Supermarket,
and for the appellant to position himself within the vicinity. 17 Manansala
waited Ybasco near the office of the money changer. Dela Rapa, who was
then vending cigarettes, was about five arm’s length away from the car. 18
At around 6:30 p.m., Ybasco emerged from the office of his employer
holding a plastic bag. Manansala contacted Del Rosario and told him that
Ybasco was on his way out. He reminded Del Rosario to be on the lookout
for anybody who might rush to the succor of Ybasco, while the appellant
Page 13 of 71
would take care of Ybasco. Momentarily, Manansala and the appellant
confronted Ybasco and told him, "May warrant of arrest ka." They grabbed
Ybasco, handcuffed him and dragged him to the car. 19 Manansala and the
appellant had a scuffle with Ybasco when they grabbed the plastic bag
from him.20 Roberto Acosta, a roving security guard, saw the incident and
pulled out his .38 caliber gun with Serial No. 172410. On board his
motorbike, he sped towards the scene to investigate the incident. Del
Rosario confronted Acosta and grappled with him for the possession of
the gun.21 As Del Rosario managed to wrest possession of the gun from
Acosta, Manansala ordered Del Rosario to shoot. Del Rosario did as he was
told, and shot Acosta in the mouth. They boarded the car, and sped
towards EDSA.22 Dela Rapa was shocked at the sudden turn of events.23 So
was Juanito Mendoza, who had just stepped out from the Rustan’s
Supermarket and saw the shooting incident.24
Wilfredo Delia, another security guard at the Ayala Center, rushed to
Acosta’s aid and brought him to the Makati Medical Center. Acosta expired
at about 10:10 p.m.25
Meanwhile, the Toyota Corolla sped towards the direction of Cabuyao,
Laguna. Manansala said that they would have no problem because the
mayor was his ninong.26 However, when he looked inside Ybasco’s bag
and found that it only contained ₱5,000 instead of the expected
US$250,000, he was enraged. Manansala hit Ybasco on the nape and
uttered invectives at the latter. Ybasco explained, "Eh wala naman akong
idinedeliber mga anak na ganyan kalaking pera." Manansala took the
₱5,000 from Ybasco.27
Ybasco was transported to a sugar farm at Barangay Pulo, Cabuyao,
Laguna. Manansala and the appellant took him out of the car and told him
that he would be allowed to board a tricycle. The appellant warned Ybasco
not to follow them, as he, (the appellant) was a member of the New
People’s Army. Believing that Ybasco would be freed, Del Rosario took ₱80
from the latter’s wallet, but returned ₱50 to him for his fare. 28
The appellant suddenly shot Ybasco on the head. The latter fell to the
ground with his hands still handcuffed.29Manansala, the appellant and Del
Rosario proceeded to Calamba, Laguna, where Del Rosario alighted after
receiving ₱100 from the appellant for his fare. 30 The appellant explained
that the remaining ₱4,900 would be used for the repair of the car.
In the meantime, police operatives from the Makati Police Station,
including SPO4 Tomas Sipin and SPO1 Ramoncito Ocampo, arrived at the
Ayala Center to conduct an on-the-spot investigation of the killing of
Acosta and Ybasco’s abduction.31 When Dela Rapa informed the policemen
that she witnessed the incident, she was brought to the police station
where she gave a sworn statement.32 At 8:10 p.m., Juanito Mendoza
arrived at the Makati Police Station and gave a sworn statement where he
indicated that he witnessed the shooting incident and saw the get-away
car, a Toyota Corolla with Plate No. TAX 732. He also gave a physical
description of Acosta’s assailant.33
At 6:20 a.m. of March 8, 1994, Sofronio Entridicho was at his sugar field
and saw the cadaver of Ybasco whose hands were still
handcuffed.34 Entridicho reported what he saw to the Cabuyao Police
Station.35 SPO2 Reynaldo Arcibal of the Cabuyao Police Station reported
the finding to the Makati Police Station which dispatched a team of police
investigators to Barangay Pulo, Cabuyao, Laguna. The policemen found
Ybasco’s body and an empty shell from a .45 caliber pistol. 36
In the meantime, the policemen were able to ascertain that the Toyota
Corolla car with Plate No. TAX 732 belonged to Cecilia Tan and her
husband Christopher Nash, and that the latter gave the car keys to Rolando
Fajardo for car repairs, with instructions to turn it over later to Del
Rosario and the appellant.37 On March 9 and 10, 1994, Rolando Fajardo
gave sworn statements38 to the Makati Police Operatives where he stated
that at 8:00 a.m. of March 7, 1994, he turned over the car to the appellant
and the latter’s brother-in-law, Del Rosario. Fajardo also stated that at
9:00 a.m. of March 8, 1994, Manansala told him how Ybasco was abducted
and brought to Cabuyao, Laguna, where he was shot by the appellant.
On March 9, 1994, police operatives arrested Del Rosario at his residence
in Barangay Tadloc, Los Baños, Laguna. 39 Del Rosario tried to shoot it out
with the policemen using Acosta’s service pistol, a .38 caliber revolver
which had six live ammunitions, bearing serial number 172410. 40 The gun
was turned over to SPO2 Marlon Binotapa at the homicide section of the
Makati police department.41 On the same day, Manansala was arrested at
his residence in Barangay Canlubang, Laguna.
On March 12, 1994, Manansala, with the assistance of his counsel, Atty.
Sofronio Untalan, Jr., executed an extrajudicial confession in which he
narrated how he, the appellant, Del Rosario and Nash, planned to rob
Ybasco of the cash he was carrying, including the details of the abduction
and the killing.42 The policemen attempted to arrest the appellant at his
residence, but the latter was nowhere to be found. The appellant remained
at large.43
Tanauan Police Operatives found the white Toyota Corolla with Plate No.
TAX 732 in Tanauan, Batangas.44 The car was turned over to SPO2 Romeo
Urbino of the Makati Police Station, who discovered that the said plate
number was tampered with and renumbered PTT 134.
From a police line-up of ten persons formed by the Makati Police Station,
which included Del Rosario, Dela Rapa was asked to identify Acosta’s killer
and Ybasco’s abductors. Dela Rapa pointed to and positively identified Del
Rosario as Acosta’s assailant. Dela Rapa gave a supplemental
statement45 pointing to and identifying Del Rosario as the person whom
she saw boarding a white car.46
In the meantime, PNP Medico-Legal Officer Joselito Rodrigo performed an
autopsy on the cadaver of Ybasco and issued Medico-Legal Certificate No.
M-006-94 which contained the following findings:
Well-nourished, well-developed male cadaver in rigor mortis with
postmortem lividity over the dependent portions of the body. Pale
conjunctivae, cyanotic lips and nailbeds. Both upper extremities were
handcuffed.
HEAD AND EXTREMITIES
1. Gunshot wound thru and thru point of entry right zygomatic region
measuring 0.9 x 1.2 cms., 10 cms. from its anterior midline with area of
smugging and tattoing measuring 4 x 7 cms. directed posteriorwards,
slightly downwards and to the left fracturing the right zygomatic bone,
maxillary bone, and occipital bone making a point of exit at the posterior
neck region measuring 1 x 1.2 cms., 2.5 cms. from its posterior midline.
CONCLUSION:
Cause of death is hemorrhage as a result of gunshot wound of the head.47
The doctor also issued the victim’s Certificate of Death. 48
On May 19, 1995, Del Rosario and Manansala were charged with robbery
with homicide in an Information, the accusatory portion of which reads:
That on or about March 7, 1994, in the Municipality of Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating with Eduardo de
Jesus y Enrile alias "Eddie," Christopher John Nash and one alias "Ton Ton"
whose real name and present whereabout are still unknown and all of
them mutually helping and aiding one another, with intent of gain and by
means of force, violence and intimidation, to wit: dragging, shoving and
pushing inside a Toyota Corolla car, colored white with Plate No. TAX-732
Page 14 of 71
one SPO2 Eugenio Ybasco, did then and there willfully, unlawfully and
feloniously take, steal and carry away the following:
1) One (1) Cal. 38 revolver Smith & Wesson, with
Serial No. AUB-1015;
2) Identification Cards;
3) One (1) wallet containing ₱5,000.00 cash.
belonging to the said SPO2 Eugenio Ybasco, against his will, to the damage
and prejudice of the said SPO2 Eugenio Ybasco and/or his heirs and
thereafter, the above-named accused, after handcuffing both hands of the
said SPO2 Eugenio Ybasco, with intent to kill, did then and there willfully,
unlawfully and feloniously, shoot and fire at him with a handgun, thereby
inflicting upon the latter a mortal wound which was the direct and
immediate cause of his death; that on the occasion of the aforesaid
robbery committed on SPO2 Eugenio Ybasco, the above-named accused,
did then and there, willfully, unlawfully and feloniously shoot and fire at,
with a handgun, one Roberto Acosta y Capirao, a roving security guard
detailed at the Ayala Center, who came to the rescue of SPO2 Eugenio
Ybasco, thereby inflicting upon him a serious mortal wound which directly
caused his death.
CONTRARY TO LAW.49
Del Rosario was arraigned on April 5, 1994, assisted by counsel, and
pleaded guilty to the charge.50 On April 15, 1994, Manansala, assisted by
counsel, was arraigned and pleaded not guilty. 51 On April 21, 1994, Del
Rosario appeared before the court and stated that he wanted to testify and
elucidate on how the crime charged was committed by him and his
cohorts. The court granted Del Rosario’s request. With the assistance of
counsel de parte, he forthwith testified on how he, Manansala and the
appellant perpetrated the crime.52 The court, thereafter, rendered
judgment convicting Del Rosario of robbery with homicide and sentencing
him to suffer reclusion perpetua.53
On motion of the public prosecutor, the court admitted the Amended
Information filed by public prosecutor. The amendment consisted of the
inclusion of Christopher John Nash and the appellant as additional
accused.54Consequently, the court issued warrants for their arrest.
Christopher Nash filed a petition for review of the resolution of the public
prosecutor finding probable cause against him for the crime charged. On
January 25, 1995, the Secretary of Justice granted the petition and ordered
the public prosecutor to move for the withdrawal of the Amended
Information as against Christopher Nash only. The public prosecutor filed
the motion55 which the court granted on March 29, 1994.56 Manansala,
through counsel, prayed for the inhibition of the Presiding Judge on the
ground of partiality. The court granted the motion. The case was re-raffled
to Branch 65 of the court. In the meantime, the prosecution began
presenting its evidence against Manansala.
On November 20, 1995, the police operatives arrested the appellant in
Cabuyao, Laguna.57 The appellant was arraigned, with the assistance of
counsel on February 13, 1996, and entered a plea of not guilty. 58 On
November 6, 1996, Manansala died while under detention due to a
mauling incident.59 The case against him was dismissed,60while trial
against the appellant continued. Considering that Del Rosario was
detained at the national penitentiary, the court conducted a trial thereat
on May 20, 1997, where Del Rosario testified for the prosecution and was
cross-examined by the appellant’s counsel.61
The appellant, through counsel, admitted the due execution of the sworn
statement of Rolando Fajardo,62 Juanito Mendoza,63 Marcelina
Acosta64 and Dolores Ybasco,65 and waived his right to cross-examine the
said witnesses.66 The prosecution no longer presented the affiants as
witnesses.
The Evidence for the Appellant
The appellant denied any involvement whatsoever in the crime charged.
He did not know of any person named John Nash. He denied being in the
company of Manansala, Del Rosario and a certain Tonton in the evening of
March 7, 1994.67
The appellant testified that in February 1994, he purchased a tricycle for
₱46,705 in Calamba, Laguna. He borrowed the amount from his sister. He
had the tricycle registered in his name.68 He drove the tricycle everyday to
eke out a living, plying the route in Barangay Tabuyoc, Apalit, Pampanga,
from 6:00 a.m. to 9:00 p.m.69
On March 7, 1994, the appellant took out his tricycle to ply his usual route.
At around 5:00 p.m. that day, he dropped off his passenger, Mrs. Silvina
Lumba, at the market. They had agreed that he would pick her up from the
market, then drop her off at her house. The distance from the market to
the Lumba residence was about 2-l/2 kilometers. The trip took him about
one hour.70 On March 10 or 11, 1994, policemen raided his house, but
failed to arrest him.71
The appellant admitted that he had known Manansala in Pampanga
since he was a boy. He alleged that Del Rosario was the brother of his wife,
Cecille; hence, his brother-in-law.72After he and Cecille were married, they
resided in the house of his in-laws where Del Rosario was also
staying.73There was a time when he and Del Rosario had a violent
altercation. As he was also a sewing machine mechanic by profession, Del
Rosario asked him to alter a pair of pants, but the appellant refused to do
so. Del Rosario then smashed the sewing machine74 and the two of them
exchanged fist blows.75 Since then, Del Rosario harbored a grudge against
him. Later, he and Cecille parted ways. She married a Swedish national and
resided in Sweden,76bringing their daughter Diane Joyce along with her.
The appellant had five children with his new partner. Del Rosario was also
mad at him because he had planned on filing a case against his sister for
marrying a foreigner.
The appellant was in the house of his aunt on March 11, 1994 when he
learned that he had been implicated in the case. A team of policemen,
together with Manansala and Del Rosario, raided his house. He saw his co-
accused in a "bugbog-sarado condition."77 He also received information
that Del Rosario and Manansala were tied to a bridge and dipped into the
river while under the custody of policemen.78 Upon the advice of his
brother, the appellant decided not to surrender, as he was afraid that he
might also be mauled and hurt by the police.79 The appellant, thereafter,
worked in Binangonan, Rizal.80 He was arrested on November 20,
199581 and was brought to Camp Vicente Lim,82 where he was treated well
and subjected to physical examination.
While in prison, Del Rosario told the appellant that he would be impleaded
and jailed as he had abandoned his sister, and that Del Rosario was
intending to file a case against him.83 The appellant received a letter with
a Christmas card from his daughter in Sweden. 84 He also received a letter
from Del Rosario dated December 4, 1997 through Pinky Dizon, the wife
of one of the inmates at the penitentiary. 85 In the said letter, Del Rosario
stated that the appellant was not involved in the case and apologized for
implicating him. The appellant also received a letter from Del Rosario
sometime in Easter, suggesting that he ask for a hearing so that Del
Rosario could testify and clear him of the crime charged. The appellant
also alleged that before Manansala died, the latter disclosed that he
executed a statement implicating the appellant because he (Manansala)
was tortured by policemen.86
Silvina Lumba corroborated the testimony of De Jesus. She testified that at
5:00 p.m. on March 7, 1994, she contracted the services of the appellant to
transport her in his tricycle, going to and from the market. They arrived at
her house at around 6:30 p.m.87 The appellant asked her to appear in court
and to testify.88
Page 15 of 71
Rosario Dizon Lopez testified that sometime in November or December
1997, she visited her husband Jerry Lopez at the Makati City Jail where she
met Del Rosario. She again met Del Rosario in Muntinlupa where he would
ask her to deliver letters89 to the appellant, who was then detained at the
Makati City Jail.90 The jail warden never knew that the said letters were
handed to her; neither were her things inspected when she left the
national penitentiary. Lopez did not course the letters through the jail
warden, but would simply go directly to the jail guards who would inspect
the letters and read them. She was then allowed to bring the letters in.
Furthermore, the visits in the Makati City Jail were not recorded in the
logbook; nor was she required to sign therein. At times, her forearms were
stamped to indicate that she was a visitor. 91 She also recounted that
sometime in 1997, the appellant asked for money from Del Rosario, but
the latter did not send any.92
Jennifer Obina, the appellant’s live-in partner, testified that the latter
worked as a sewing machine mechanic in a garment factory in Pasong
Tamo Extension, Makati, when they started living together. In 1988, she
was engaged in the business of selling fish and tinapa. Sometime in
February 1994, the appellant bought a tricycle and drove it as a means of
livelihood. He would start plying his route, usually around the market and
the municipal hall, at 6:00 a.m. until 5:00 p.m. everyday of the week.
On March 10, 1994, Obina was surprised to learn that the appellant was
implicated in a kidnapping and killing incident which was aired over the
television and radio.93 Also on the said date, policemen in civilian clothes
who were looking for her "husband" raided their house. 94 The appellant,
however, was not there, but was within the vicinity of his aunt’s house.
The policemen never showed any warrant of arrest or search warrant.
They just went inside the house and poked a gun at her head. They forced
her to reveal where the appellant was, but she refused to do so. 95 Neither
was she informed why they were looking for him. The policemen merely
told her that the appellant was a criminal and a killer. Although the
appellant knew that he was "wanted" for the kidnapping and killing
incidents, he just ignored the matter.96 Obina later learned from the
appellant’s cousin that the latter had already left for Manila.97 The
appellant did not return for about a week, and thereafter, stayed with his
aunt in Taguig.98
After trial, the court rendered judgment finding De Jesus guilty of the
crime charged, the decretal portion of which reads:
WHEREFORE, in view of the foregoing, judgment is rendered finding the
accused EDUARDO DE JESUS Y ENRILE GUILTY beyond reasonable doubt
of the crime of Robbery with Homicide and sentencing him to suffer the
penalty of DEATH; to indemnify the heirs of the deceased SPO2 Eugenio
Ybasco and Roberto Acosta in the sum of ₱50,000.00 each family; and to
pay the heirs of SPO2 Eugenio Ybasco the sum of ₱500,000.00 by way of
moral damages.99
The trial court relied principally on the testimony of Dela Rapa and Del
Rosario, corroborated by the other evidence on record, in convicting the
appellant of the crime charged. It considered the testimony of Del Rosario
on April 21, 1994 as a judicial confession, admissible in evidence not only
against the confessant (Del Rosario) but also against the appellant.
The appellant now assails the decision of the trial court on the following
grounds:
I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE EVIDENCE OF
THE PROSECUTION IS INSUFFICIENT TO PROVE THE GUILT OF
ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.
II. THE TRIAL COURT ERRED IN ADMITTING THE JUDICIAL CONFESSION
OF ACCUSED CRISPIN DEL ROSARIO AND IN USING THE SAME AGAINST
THE OTHER ACCUSED, INCLUDING ACCUSED-APPELLANT EDUARDO DE
JESUS, IMPLICATING THEM TO THE CRIME CHARGED, DESPITE THE
FACT THAT THE SAME IS INADMISSIBLE IN EVIDENCE. MOREOVER, THE
AFFIDAVIT OF ACCUSED DANTE MANANSALA POINTING TO ACCUSED-
APPELLANT AS THE ASSAILANT IS LIKEWISE INADMISSIBLE IN
EVIDENCE.
III. THE TRIAL COURT ERRED IN DECLARING THAT ACCUSED-
APPELLANT CONSPIRED WITH THE OTHER ACCUSED IN COMMITTING
THE CRIME CHARGED.
IV. THE TRIAL COURT ERRED IN OUTRIGHTLY DISREGARDING
ACCUSED-APPELLANT’S DEFENSE OF ALIBI AND DENIAL, DESPITE THE
FACT THAT THE SAME IS CREDIBLE AND WAS CORROBORATED BY
ANOTHER WITNESS.
V. THE TRIAL COURT ERRED IN APPRECIATING AGAINST THE ACCUSED-
APPELLANT THE AGGRAVATING CIRCUMSTANCE OF TREACHERY.
VI. THE TRIAL COURT ERRED IN HOLDING THAT THE CRIME OF
ROBBERY WITH HOMICIDE WAS COMMITTED DESPITE THE FACT THAT
NO ROBBERY ACTUALLY TOOK PLACE.
VII. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-
APPELLANT AND IN IMPOSING UPON HIM THE SUPREME PENALTY OF
DEATH, AND IN NOT ACQUITTING HIM OF THE CRIME CHARGED,
DESPITE THE FACT THAT THE PROSECUTION’S EVIDENCE AGAINST
ACCUSED-APPELLANT FAILED TO STAND THE CRUCIBLE TEST OF
REASONABLE DOUBT TO OVERTHROW THE CONSTITUTIONALLY
GUARANTEED PRESUMPTION OF INNOCENCE.100
The appellant contends that the prosecution failed to prove the
commission of the crime charged beyond reasonable doubt. While the
prosecution may have proved the killing of Acosta and Ybasco, it, however,
failed to prove that the appellant divested Ybasco of ₱5,000.
The appellant also avers that the prosecution failed to prove that he was
one of the malefactors, and his precise participation in the commission of
the crime charged. He asserts that absent proof of conspiracy, Del
Rosario’s judicial confession is admissible in evidence only against the
confessant but not against him. Moreover, the appellant asserts, the said
judicial confession came from a "polluted source," as Del Rosario himself
admitted to being one of the malefactors. Thus, his testimony must be
scrutinized with care and subjected to grave suspicion. The appellant
further avers that Del Rosario even stated that Manansala was Ybasco’s
assailant. He argues that Del Rosario himself could also have been the
assailant, as it was he who shot Acosta when the latter tried to rescue
Ybasco.
According to the appellant, Del Rosario implicated him, his own brother-
in-law, because they often quarreled with each other. The appellant had
made life miserable and unbearable for Del Rosario, and the latter’s sister,
who was later impelled to marry a Swedish national. As shown by Del
Rosario’s letters to the appellant, the former himself apologized to the
latter for having falsely implicated him in the crime charged.
Contrary to the ruling of the trial court, Del Rosario’s letters to the
appellant were not hearsay. The prosecution could very well have
presented Del Rosario anew to refute his allegations, but the prosecution
failed to do so. The appellant further argues that Manansala’s extrajudicial
confession is hearsay, because the latter died before he could testify and
later be cross-examined by the appellant thereon. Moreover, the affidavits
and testimony of Dela Rapa, as well as Del Rosario’s judicial confession,
are utterly insufficient on which to anchor a finding that the appellant was
one of the malefactors and that he conspired with the perpetrators of the
crime, namely, Manansala and Del Rosario. Finally, the appellant
concludes that Dela Rapa failed to identify him as one of the malefactors.
We have meticulously reviewed the records and we are convinced beyond
cavil that the prosecution adduced proof beyond reasonable doubt that
the appellant, Del Rosario and Manansala, conspired to rob Ybasco of
US$250,000 through violence and intimidation and that the appellant was
Page 16 of 71
one of the perpetrators thereof; hence, criminally liable therefor as a
principal by direct participation.
The Felony of Robbery
With Homicide
Article 294, paragraph 1 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons –
Penalties. - Any person guilty of robbery with the use of violence against
or any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed,
or when the robbery shall have been accompanied by rape or intentional
mutilation or arson.
For the accused to be convicted of the said crime, the prosecution is
burdened to prove the confluence of the following elements:
(1) the taking of personal property is committed with violence or
intimidation against persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof, homicide is
committed.101
In robbery with homicide, the original criminal design of the malefactor is
to commit robbery, with homicide perpetrated on the occasion or by
reason of the robbery.102 The intent to commit robbery must precede the
taking of human life.103 The homicide may take place before, during or
after the robbery. It is only the result obtained, without reference or
distinction as to the circumstances, causes or modes or persons
intervening in the commission of the crime that has to be taken into
consideration.104
There is no such felony of robbery with homicide through reckless
imprudence or simple negligence. The constitutive elements of the crime,
namely, robbery and homicide, must be consummated.
It is immaterial that the death would supervene by mere accident; or that
the victim of homicide is other than the victim of robbery, or that two or
more persons are killed or that aside from the homicide, rape, intentional
mutilation, or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the victim of
homicide is one of the robbers; the felony would still be robbery with
homicide. Once a homicide is committed by or on the occasion of the
robbery, the felony committed is robbery with homicide. All the felonies
committed by reason of or on the occasion of the robbery are integrated
into one and indivisible felony of robbery with homicide. The word
"homicide" is used in its generic sense. Homicide, thus, includes murder,
parricide, and infanticide.
Intent to rob is an internal act but may be inferred from proof of violent
unlawful taking of personal property. When the fact of asportation has
been established beyond reasonable doubt, conviction of the accused is
justified even if the property subject of the robbery is not presented in
court. After all, the property stolen may have been abandoned or thrown
away and destroyed by the robber or recovered by the owner.105 The
prosecution is not burdened to prove the actual value of the property
stolen or amount stolen from the victim. Whether the robber knew the
actual amount in the possession of the victim is of no moment because the
motive for robbery can exist regardless of the exact amount or value
involved.106
When homicide is committed by reason or on the occasion of robbery, all
those who took part as principals in the robbery would also be held liable
as principals of the single and indivisible felony of robbery with homicide
although they did not actually take part in the killing, unless it clearly
appears that they endeavored to prevent the same. 107
If a robber tries to prevent the commission of homicide after the
commission of the robbery, he is guilty only of robbery and not of robbery
with homicide. All those who conspire to commit robbery with homicide
are guilty as principals of such crime, although not all profited and gained
from the robbery. One who joins a criminal conspiracy adopts the criminal
designs of his co-conspirators and can no longer repudiate the conspiracy
once it has materialized.108
Homicide is said to have been committed by reason or on the occasion of
robbery if, for instance, it was committed to (a) facilitate the robbery or
the escape of the culprit; (b) to preserve the possession by the culprit of
the loot; (c) to prevent discovery of the commission of the robbery; or, (d)
to eliminate witnesses in the commission of the crime. As long as there is
a nexus between the robbery and the homicide, the latter crime may be
committed in a place other than the situs of the robbery.
The Prosecution Adduced Proof
Beyond Reasonable Doubt That
The Appellant Conspired With Del
Rosario And Manansala To Commit
Robbery With Violence Against Or
Intimidation Of Persons
Under Article 8 of the Revised Penal Code, there is conspiracy when ten or
more offenders agree to commit a felony and decide to commit it.
Conspiracy may be proved by direct evidence or by circumstantial
evidence. Conspiracy must be shown as distinctly and conclusively as the
crime itself.109 It may be declared from the acts of the suspect before,
during and after the commission of the felony which are indicative of a
joint purpose, concocted action and concurrence of sentiments. 110
To be a conspirator, one need not participate in every detail of the
execution; he need not even take part in every act or need not even know
the exact part to be performed by the others in the execution of the
conspiracy. Each conspirator may be assigned separate and different tasks
which may appear unrelated to one another but, in fact, constitute a whole
collective effort to achieve their common criminal objective. 111 Once
conspiracy is shown, the act of one is the act of all the conspirators. The
precise extent or modality of participation of each of them becomes
secondary,112 since all the conspirators are principals. To exempt himself
from criminal liability, a conspirator must have performed an overt act to
dissociate or detach himself from the conspiracy to commit the felony and
prevent the commission thereof.113
In this case, the appellant, Del Rosario and Manansala, intended to abduct
Ybasco and divest him of money in the amount of US$250,000, which they
thought Ybasco was about to deposit in the bank. Each of them had specific
tasks to perform: the appellant and Manansala were tasked to abduct
Ybasco, handcuff him and board him in their car, while Del Rosario acted
as a lookout who would prevent anyone from interfering with Ybasco’s
abduction and the consummation of the robbery. The trio performed their
tasks with precision. In the process, Del Rosario shot and killed Acosta
Page 17 of 71
who was on patrol within the vicinity and had rushed to the scene to
investigate the incident. The appellant and Manansala abducted Ybasco,
handcuffed him and boarded him in the car. Del Rosario took Acosta’s
service gun bearing serial number 172410 after killing the victim. This is
gleaned from the Del Rosario’s testimony, viz:
FISCAL BACULI
Q Isinusumpa mo ba na ang lahat ng sinasabi mo ay pawang katotohanan
lamang?
A Oho, sir, siya rin ho ang nagsabi niyan sa akin narinig ko sa kanyang
bunganga, ngayon pagdating naming dito ng mga menus kinse bago
magalas-sais dito sa may kotse doon piplano (sic) ni Dante kung paanong
posisyon ang gagawin dinala niya ako sa may kanto ng Rustan’s si Eddie
doon niya ipinuwesto sa may banda roon ng aking puwesto tapos ho si Dante
dito naman siya sa may malapit sa money changer siya ang tumitingin at
umaagap dito kay sir Ybasco, ngayon ho nong dumating ang oras ng labas
ni sir Ybasco nauna si Dante kasunod si sir Ybasco ngayon ho pagdating sa
akin sa may kanto sabi sa akin ni Dante "nandiyan na bahala ka diyan" sabi
sa aking ganon kung meron mang humarang ikaw ang bahala upakan mo
sabi sa aking ganon ako naman ang bahala dito kay tanda kay tatang
sabing ganon tutulungan ko si Eddie dito sa pagipit, ngayon ho nong
lumampas sa akin si sir Ybasco dalawa na sila doon si Dante at si Eddie
ngayon ho nakita ko dinakot nila si sir Ybasco pinosasan nila tapos pilit
nilang isinakay sa kotse siya naming dating nong guwardiya at tinanong sa
akin "bakit anong ibig sabihin niyan" at nakahawak sa pulohan ng baril
ngayon ho natakot naman ako dahil nakahawak sa pulo ng baril baka ako
barilin ngayon ho sa lito ko hindi ko maintindihan kung anong gagawin ko
ang ginawa ko ho pagbunot niya ng baril yon pinilit agawan ng baril
habang inaagaw ko ang baril sigaw naman ng mga ito pilitin mong maagaw
tapos iputok mo sa kanya.
COURT
Sino ang nag-utos sa iyo non?
A Si Dante po, sir, tapos po di hindi ko naman inintindi yon dahil alam ko
naman ang gagawin ko dahil ako naman talaga ang mamamatay kung
bibitawan ko eh yon ho pagkaagaw ko ng baril kaysa ako ang mamatay siya
na ho ang pinutukan ko.114
Del Rosario’s testimony is corroborated by the fact that Acosta’s firearm
was found in his possession when he was arrested by the police,115 and by
Dela Rapa’s sworn statements to the Makati police office as well as her
testimony:
Q While selling cigarette at that date and time, do you still remember or
recall of any unusual incident that happened on that date and time?
A Yes, sir.
Q Please inform the Court what was that unusual incident that happened
on that date and time?
A Mr. Ybasco was forcefully dragged into the white car, sir.
Q Who is this Mr. Ybasco, if you know?
A I called him "Sir Ybasco," sir.
Q Why do you addressed him "Sir Ybasco?"
A Because I know him for a long time and I’m selling cigarette for a long
time, sir.
Q Do you know where he was connected?
A Yes, sir.
Q Where?
A Money Changer, Sir.
Q Do you know also if he is [a] member of [the] Makati Police
Headquarters?
A Yes, sir.
Q How long have you know[n] him as [a] member of the Makati Police
Headquarters?
A As far as I know I am selling for thirteen years and he is also working at
the Makati Police Headquarters for thirteen years.
Q Do you know what was his position or nature of his work at the Makati
Police Headquarters?
A I do not know, sir.
Q A while ago, you said that with the same date and time, you saw some
persons shoving, dragging and pushing Eugenio Ybasco inside a white car,
do you know the identities of these some (sic) persons?
A I cannot remember the persons who dragged, shoved and pushed
Eusebio Ybasco inside the car because it was a little bit dark, sir.
Q But, were there lights that (sic) date and time?
A Yes, sir.
Q How many lights were there at that place and time?
A There were several lights at that date and time, because it is a parking
lot and there were lights in the Kimpura, sir.
Q Do you still recall how many persons were pushing, shoving and
dragging Eugenio Ybasco inside a white colored car?
A Around three (3) persons, sir.
Q Are these three (3) persons male or female?
A Male, sir.
Q Now, what happened then when these three male persons pushed,
dragged or shoved Eugenio Ybasco inside the white car?
A After Eusebio Ybasco was pushed inside the car he (witness is referring
to Crispin Del Rosario) shot Mr. Acosta, a certain Security Guard.
Q Are you sure that he was the one who shot a certain Security Guard
Roberto Acosta?
A Yes, sir.
Q Did you see him actually shoot a certain Roberto Acosta?
Page 18 of 71
A Yes, sir.116
Juanito Mendoza, likewise, corroborated in part the testimonies of Del
Rosario and Dela Rapa.117 The barefaced fact that Dela Rapa and Mendoza
did not see the face of the appellant and could not identify him as one of
Ybasco’s abductors does not negate the fact that they witnessed the
abduction and the killing of Acosta.
The Prosecution Adduced Proof
Beyond Reasonable Doubt that
the Appellant and his Cohorts
Divested Ybasco of P5,030.00 And
That The Appellant Shot Ybasco And
Acosta To Death On The Occasion
Or By Reason Of Robbery
We reject the appellant’s contention that the prosecution failed to prove
that the appellant and his cohorts divested Ybasco of ₱5,030.00, and his
argument that Ybasco was shot by either Manansala or Del Rosario. The
prosecutor adduced proof beyond reasonable doubt that Del Rosario shot
Acosta in Makati, that the appellant divested Ybasco of ₱5,000.00, and that
Del Rosario divested the victim of ₱30.00. This is gleaned from the
testimony of Del Rosario, viz:
FISCAL BACULI
Ikaw ba ay handang tumestigo laban kay Dante Manansala kung bibistahan
uli ang kaso niya?
A Opo, sir, tapos po nakita ko pong naisakay na si sir Ybasco na hindi ko
naman alam na pulis pala at pagkakita ko pong nakasakay na sila ako
nama’y takbo tapos may bumaril pa ho sa loob ng kotse kaya nagkaroon ng
sira yung likuran ng kotse hindi ko ho matiyak kung ako ang binaril nila o
yong guwardiya dahil ang alam ko talaga ako ang nakabaril sa guwardiya
wala naman silang babarilin kundi ako lang talaga dahil ako nama’y
biktima nila ngayon po pagdating naming sa kotse umandar na kami
papunta kami ng expressway sa madalit sabi ho di nasa expressway na kami
nong malapit na kami sa Cabuyao ang sabi ni Dante "nandito na tayo sa
Cabuyao ninong ang mayor diyan wala tayong problema dito na lang natin
itumba yan" hindi naman ho ako makapagsalita dahil marami naman ho
sila eh di pagdating ho ng Cabuyao doon sa may tubohan tumigil ho ang
kotse at bumaba si Dante, pagbaba ni Dante ang sabi narinig ko "teka muna
titingnan ko muna baka may tao" dahil madilim ho ang lugar tapos ho nong
makita niyang walang tao sabi niya kay Eddie "sige Ed ibaba mo na yan si
tatang" ngayon bago niya ibinaba si tatang akala ko pasasakayin niya ng
tricycle dahil ang sabi ni Eddie sa loob ng tricycle eh pakakawalan na
naming kayo basta huwag lang kayong hahabol kami’y eh mga NPA sabing
ganon pa ni Eddie hindi naman kami NPA si Eddie lang ang NPA yon ang
panakot sabi naman ni sir Ybasco "sige wala tayong problema mga anak
sabi niyang ganon" ngayon ho ibinaba nila si sir Ybasco, si Eddie at si Dante
dinala ho sa banda roon, akala ko naman talagang pasasakayin nila ng
tricycle dahil yong pera ho sa bulsa ni sir Ybasco na baryang otsenta
pesos ako pa ho ang kumuha non at ako pa ho ang nagbigay ng
singkuwenta pesos kay sir Ybasco ngayon ho nong pagkababang yon
nakita ko hong tinututukan ni Eddie kasama si Dante dahil ipinagmamalaki
niya na ninong nga daw niya yong meyor doon at malakas siya sa Cabuyao.
Ngayon ho di patay yong tao nakita ko tagilid siyang bumagsak tapos eh
tumihayang ganon tapos eh uulitin ng baril kaya lang hindi na naulit dahil
bumatangal daw yong baril kaya hindi na ho pumutok.
COURT
Sino ang bumaril?
A Si Eddie po ang nakita kong bumaril pero ang nagbaba ho ng tao ay silang
dalawa, si Eddie at si Dante, ngayon ho pagdating naming sa Calamba yon
ibinaba na nila ako sa Calamba binigyan niya ako ng pera isangdaang piso.
FISCAL BACULI
Sino ang nagbigay ng pera sa iyo?
A Si Eddie po dahil nasa kanya yong pera eh, ngayon ho di binigyan na ako
ng perang isandaang pisong pamasahe at marami pa raw hong papartihan
… (interrupted).
COURT
Magkano bang nakuha n’yo?
A ₱5,000.00 lang, sir, at ipapaayos pa raw ang salamin sa likod dahil
sira dahil habang kami’y nananakbo eh nalaglag na yong salamin
ngayon ho hindi ko na alam kung saan nila dinala yong kotse at saka
isa pa ho sobra ho galit niya kay sir Ybasco hinahanap niyang maigi
ang pera na $250,000 daw.
FISCAL BACULI
Sino?
A Si Dante ho, sir, nong kami’y nasa expressway galit na galit yan kay sir
Ybasco minumura niyang magaling yong matanda at binabatukan pa ho ng
patunog hinahanap yong perang $250,000 bakit daw hindi siya nagdeliber
ngayon hinahanap niyang magaling sabi naman ho ni sir Ybasco "eh wala
naman akong idenideliber mga anak na ganyang kalaking pera" ang akala
ko meron ng pera sabi pa niyang ganon eh pagtingin ko naman ho sa bag sa
loob ng bag eh wala naman ho ang nakita ko lang ay baunan nong mga oras
na yon.118
It is true that when Del Rosario continued with his testimony during the
trial on May 20, 1997, he admitted to having pleaded guilty to robbery
with homicide, but declared that no robbery took place:
PROS. BAGAOISAN
Mr. Witness, do you recall that you pleaded guilty to the offense Robbery
with Homicide before Branch 65, Regional Trial Court, Makati City?
WITNESS
Yes, sir, but there was no robbery that took place on that day. 119
Del Rosario even declared on re-direct examination that no money was
found in the possession of Ybasco and that when he testified on April 21,
1994, his mind was confused:
PROS. BAGAOISAN
Yes, Your Honor.
Q Mr. Witness, you testified on cross-examination that there was (sic) no
robbery that (sic) was committed, am I correct?
Page 19 of 71
WITNESS
Yes, sir.
PROS. BAGAOISAN
But in the hearing of April 21, 1994, particularly on page 18 of the
transcript of stenographic notes, the Court asked you [a] question and I
repeat: Magkano ba ang nakuha ninyo? Five thousand lang, sir. How do
you reconcile now your testimony that there was no robbery to your
answer to that question that you were able to take the amount of five
thousand pesos?
WITNESS
Well sir, what I know is that their target was the money changer because
the money changer where Sir Ybasco has a part time job but they were
thinking that the old man takes the money to the bank…. and Sir Ybasco
takes the money to the bank. They are planning to holdup Sir Ybasco but
they were not able to find money from him, sir.
PROS. BAGAOISAN
Now, where did you get then this amount of five thousand pesos?
WITNESS
Well, sir, at that time my mind was confused, I have said that amount five
thousand pesos, but the truth is there was no money found from Sir
Ybasco, sir.120
Indeed, Del Rosario’s testimony during the trial on May 20, 1997 is
inconsistent with his testimony during the trial of April 21, 1994. But the
trial court rejected the aforequoted testimony of Del Rosario on May 20,
1997, and gave credence to his testimony on April 21, 1994.
We agree with the trial court.
First. When the public prosecutor asked Del Rosario to affirm and confirm
the truth of his answers to the questions propounded on him during the
trial of April 21, 1994,121 Del Rosario unequivocably declared that his
answers to the said questions were true, and that he was not coerced,
forced or intimidated into answering:
PROS. BAGAOISAN
After you pleaded guilty before Branch 65 Regional Trial Court, Makati
City, do you recall that the Presiding Judge and the Fiscal propounded
questions to you regarding that incident?
WITNESS
Yes, sir.
PROS. BAGAOISAN
In other words, there was a hearing conducted after you pleaded guilty to
the offense charged?
WITNESS
Yes, sir.
PROS. BAGAOISAN
Now, Mr. Witness, I am showing to you an official transcript of
stenographic notes of Branch 65 Regional Trial Court, Makati City,
certified true and correct by Court Stenographic Reporter Ms. Concepcion
Padua, will you please go over the same and tell us if these are the same
questions that were propounded to you and these are the same answers
that you have given to the questions?
WITNESS
Yes, sir, these are the questions that were asked and these are my answers.
PROS. BAGAOISAN
Mr. Witness, under your present oath, do you still affirm and confirm the
truthfulness and veracity by (sic) your answers to the questions
propounded to you by the Presiding Judge and the prosecutor?
WITNESS
Yes, sir.
PROS. BAGAOISAN
Were you forced, coerced or intimidated when you made these answers,
Mr. Witness?
WITNESS
No, sir.122
Second. We have carefully reviewed the testimonies of Del Rosario on
April 21, 1994 and May 20, 1997, and conclude that it is Del Rosario’s
testimony during the hearing of April 21, 1994 which represents the truth.
The transcript of stenographic notes taken during that day is replete with
important details, logical and positive in character, and consistent even in
light of the clarificatory questions of the trial court. Del Rosario, who was
then assisted by counsel, could not have contrived his April 21, 1994
testimony where he implicated not only the appellant and Manansala but
also confirmed his criminal participation in the crime charged, including
his killing of Acosta. His testimony on April 21, 1994 was not made by one
who had a confused mind, but by one who had a clear recollection of what
he, the appellant and Manansala, had done with precision to consummate
the crime they had planned so meticulously to accomplish. In contrast, the
testimony of Del Rosario on May 20, 1997, made more than three years
after his initial testimony, is frontally inconsistent. He claimed that his
mind was confused when he testified on April 21, 1994, but in the same
breath, affirmed and confirmed the truth of his answers to the questions
propounded on him during the said trial.
Del Rosario claimed in his testimony during the hearing of May 20, 1997
that when he pleaded guilty to robbery with homicide, he was not assisted
by counsel. However, the records show that he was, in fact, assisted by his
counsel, Atty. Sofronio Untalan, Jr.123 We find it incredible that Del Rosario
would plead guilty to robbery with homicide and accept the penalty
of reclusion perpetua imposed on him by the trial court if, after all, Ybasco
was not robbed of ₱5,000. For the court to acquit the appellant of robbery
with homicide simply and merely because Del Rosario made a volte
face and disavowed his judicial confession on his bare claim that his mind
was confused when he testified on April 21, 1994 is unacceptable.
In People v. Ubiña, et al.,124 we ruled that it would be a dangerous rule for
courts to reject testimonies solely taken before the courts of justice simply
because witnesses who had given them later on change their minds for
one reason or another. Such a rule would make some trials a mockery and
place the investigation of truths at the mercy of unscrupulous witnesses.
Page 20 of 71
All the expedients devised by men to determine the credibility of
witnesses should be utilized to determine which of the contradictory
testimonies represents the truth.125The trial court and this Court reviewed
the records and have come to the same conclusion – it is Del Rosario’s
April 21, 1994 testimony which represents the truth.
It is true that Del Rosario was a co-conspirator and that he implicated the
appellant and Manansala in the killing of Ybasco and the taking of ₱5,000
from the latter. However, we have ruled that the testimony of a co-
conspirator may be given full probative weight if it is shown to be candid
and straightforward, and is full of details which by its nature could not
have been contrived, besides being corroborated by independent
evidence. In People v. Sia,126 we had the occasion to state:
… [I]n this regard, it must be borne in mind that the fact that a witness may
have been a co-conspirator in the commission of the offense is not in itself
sufficient to dilute the credibility of or, much less, be a ground to disregard
altogether his testimony. Indeed:
By way of exception, the testimony of a co-conspirator may, even if
uncorroborated, be sufficient as when it is shown to be sincere in itself,
because given unhesitatingly and in a straightforward manner, and is full
of details which by their nature could not have been the result of
deliberate afterthought.127
The April 21, 1994 testimony of Del Rosario is not only replete with
details; it is also corroborated by independent evidence, including the
medico-legal report of Dr. Joselito A. Rodrigo and his testimony that
Ybasco was shot once on the right cheek,128 the sworn statement of
Mendoza, the sworn statements and testimony of Dela Rapa, as well as the
results of the investigation of the police operatives.
Del Rosario’s letters to the appellant dated October 8, 1997 and December
4, 1997,129 did not weaken his testimony and enfeeble the case for the
prosecution. Neither did they bolster the appellant’s defenses of denial
and alibi. The appellant’s contention that his own brother-in-law, Del
Rosario, bore a grudge against him on account of their personal
differences, deserves scant consideration.
First. On cross-examination by the defense counsel on May 20, 1997, Del
Rosario was asked if he bore a grudge against the appellant on account of
the latter’s separation from his wife, Cecille, Del Rosario’s sister. Del
Rosario categorically denied nurturing any grudge against the appellant:
ATTY. DE LEON
Do you know this person Ed de Jesus?
WITNESS
Yes, sir.
Q Why do you know him?
A He was a former husband of my sister, sir.
Q Is it correct to say that Ed de Jesus and your sister were already
separated?
A Yes, sir, almost 17 years.
Q And because they were already separated, you took grudge against Ed
de Jesus, is that correct?
A No, sir.
Q Do you have any grudge against Ed de Jesus?
A None, sir.130
Second. In his October 8, 1997 letter, Del Rosario claimed that the
appellant was even intending to send money to him and that he, Del
Rosario, was expecting some money from the appellant. Del Rosario even
expressed hope that the appellant would help him first:
O cege (sic) Ed hanggang dito nalang at sana lagi kang mag-iingat diyan at
ako’y umaasa na magpapadala ka dito sa akin. At siyempre alam mo na
walang Bigas. walang ulam. walang gas. At walang pera. Siguro naman mas
higit mo akong dapat na matulungan. Kaysa sa ibang kakosa natin dito.131
If, as claimed by the appellant, his brother-in-law Del Rosario falsely
implicated him in the heinous crime, Del Rosario should have manifested
remorse and sought forgiveness from the appellant for his perfidy. Del
Rosario did not do so, and was even expecting financial help from the
appellant, the very person he falsely implicated.
Third. In the Letter dated December 4, 1997, Del Rosario stated that he
implicated the appellant in the robbery because of his fear that the
appellant would sue his ex-wife. This was but an afterthought on the part
of Del Rosario to inveigle the appellant to send money to him. The
appellant did not adduce evidence to prove that animosity existed
between him and his ex-wife, or between him and Del Rosario, on account
of the appellant’s separation from Cecille. The appellant and his ex-wife
had mutually agreed to separate more than two decades ago. In the
interim, the appellant and his ex-wife had separate partners and families.
The only proof the appellant offered was his bare testimony, which does
not deserve credence.
The appellant’s bare denial of the crime charged and his alibi are
intrinsically weak defenses and cannot prevail over the positive and
straightforward identification made by Del Rosario, that the appellant was
one of the perpetrators of the crime charged. 132 Alibi is so easy to concoct
and difficult to disprove.133 Furthermore, the appellant’s defenses of
denial and alibi were debilitated by his flight after learning that he was
wanted by police authorities for robbery with homicide, and his hiding in
Cabuyao, Laguna on November 20, 1994, where he was arrested. The
appellant managed to evade the police authorities from March 10 or 11,
1994134 by working in Cabuyao, Laguna, and in Binangonan, Rizal,135 while
his family remained in Pampanga. We agree with the following
disquisitions of the trial court:
Additionally, working against the accused Eduardo de Jesus is his "flight"
from justice. After knowing that the police authorities were after him in
connection with this case, he went into hiding. He was brought to Court
only after he was arrested by the PNP Regional Directorate Intelligence,
Camp Vicente Lim, Calamba, Laguna, on November 20, 1995. (Records, p.
195). "Flight" according to the Supreme Court, is an indication of guilt. His
reason that he feared for his life has no basis. 136
The trial court sentenced the appellant to suffer the death penalty on its
finding that Ybasco was shot to death with treachery. The appellant
contends that (a) the prosecution failed to prove that he shot the victim;
and, (b) even if he did shoot the victim, the prosecution failed to prove that
he adopted a particular means or method to do so. The Office of the
Solicitor General contends that treachery was attendant because when
Ybasco was shot, he was handcuffed; hence, unable to defend himself.
We agree with the trial court and the Office of the Solicitor General. The
evidence on record shows that when the appellant and Manansala
abducted Ybasco in Makati, they handcuffed the victim and transported
him to a sugar field in Cabuyao, Laguna. The appellant and Manansala
brought Ybasco out of the car. Still handcuffed, Ybasco was shot by the
appellant on the right cheek. The appellant insists that it was Del Rosario
Page 21 of 71
who shot Ybasco. However, the identity of the conspirator who shot
Ybasco and Acosta is of no moment.
In People v. Escote, Jr.,137 the trial court ruled that treachery is aggravating
in robbery with homicide. The aggravating circumstance of the use of a
vehicle in committing robbery with homicide is also attendant in this case.
The appellant and his cohorts used a vehicle when they abducted Ybasco
and transported him to Cabuyao, Laguna. However, the Information does
not allege that the appellant and his cohorts used a vehicle in committing
the crime charged as mandated by Section 8, Rule 110 of the Revised Rules
of Criminal Procedure. The rule must be applied retroactively because it
is favorable to the appellant.138 However, the additional killing is not an
aggravating circumstance in robbery with homicide. This is in accordance
with the ruling of this Court in People v. Regala139which is the prevailing
doctrine.
The imposable penalty for robbery with homicide as amended by Rep. Act
No. 7659 is reclusion perpetua to death. Considering the presence of the
aggravating circumstance of treachery, and that no mitigating
circumstance attended the commission of the crime, the trial court
correctly sentenced the appellant to suffer the death penalty, conformably
to Article 63, paragraph 1 of the Revised Penal Code.
The trial court ordered the appellant to pay ₱50,000 to the heirs of Ybasco
and ₱50,000 to the heirs of Acosta as civil indemnity. It also ordered the
appellant to pay to the heirs of Ybasco ₱500,000 as moral damages. The
trial court, however, failed to award exemplary damages. We shall, thus,
modify the decision of the trial court.
The heirs of Ybasco are entitled to ₱75,000 as civil indemnity. Although
the killing of Acosta was integrated into the single and indivisible felony
of robbery with homicide, the two crimes having no separate juridical
existence, nonetheless, the heirs of Acosta are entitled to civil
indemnity.140
The heirs of Ybasco are entitled to exemplary damages in the amount of
₱25,000.141 The heirs of Acosta are, likewise, entitled to ₱25,000 as
exemplary damages. Since Dolores Ybasco, the widow of the victim,
testified for the prosecution on the factual basis for moral damages, the
heirs of Ybasco are entitled to, moral damages in the amount of ₱75,000.
However, the heirs of Acosta are not entitled thereto, for failure of the
prosecution to present any of the heirs of the victim to testify on the
factual basis for the said damages. The appellant is obliged to return to the
heirs of Ybasco the ₱30.00 which Del Rosario took from Ybasco before he
was shot.
IN THE LIGHT OF THE FOREGOING, judgment is rendered AFFIRMING
WITH MODIFICATION the Decision of the Regional Trial Court of Makati,
Branch 4. The appellant Eduardo de Jesus is found GUILTY of robbery
with homicide under Article 294, paragraph 1 of the Revised Penal Code,
as amended by Rep. Act No. 7659, and sentenced to suffer the death
penalty. The said appellant is hereby ORDERED to pay to the heirs of the
victim SPO3 Eugenio Ybasco the amount of ₱5,030.00 as actual damages;
₱75,000 as civil indemnity; ₱75,000 as moral damages, and ₱25,000 as
exemplary damages. The appellant is, likewise, ORDERED to pay to the
heirs of Roberto Acosta ₱75,000 as civil indemnity and ₱25,000 as
exemplary damages. Costs de oficio.
SO ORDERED.
G.R. No. 133226 March 16, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LOCSIN FABON @ "Loklok," accused-appellant.
PER CURIAM:
Circumstantial evidence coupled with accused-appellant's flight from the
town where the crime was committed sealed his fate and merited his
conviction of a heinous crime and the corresponding imposition of the
supreme penalty of death.
In an Information filed before the Regional Trial Court of Hilongos, Leyte,
docketed as Criminal Case No. H-642, accused-appellant Locsin
Fabon, alias "Loklok'' was charged with the crime of robbery with
homicide accompanied by rape and intentional mutilation. 1 The
information reads:
That on or about the 23rd day of April 1995, in the Municipality of
Hilongos, Province of Leyte, Philippines and within the jurisdiction of this
Honorable Court, said accused at the house of the victim did then and
there, willfully, unlawfully and feloniously with intent to gain by means of
force and violence against one BONIFACIA LASQUITE, take carry away,
sum of money consisting of bills of assorted denominations and coins
amounting to TWENTY FIVE THOUSAND PESOS (P25,000.00) more or
less, Philippine Currency, and by reason or on occasion of the robbery the
same accused attack (sic) and take (sic) the life of the victim with the use
of [a] bladed weapon, thus wounding:
1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with
a depressed skull fracture;
2. Stabbed (sic) wound (punctured-like) at the (R) side of the epigastric
area;
fetching water?" 11 He responded in the negative. He notice that the
forehead, t-shirt and hair of accused-appellant were stained with
blood. 12 He also noticed that accused-appellant was carrying a plastic
bag. 13 and had a bolo tucked in his pants. 14 Accused-appellant then
walked away in a hurried manner while repeatedly looking over his
shoulders. 15 Later on in the day, he was informed by a certain Emma about
the death of their neighbor, Bonifacia Lasquite. 16 Because of this, he
informed Roberto Lasquite, the son of Bonifacia Lasquite, of his encounter
with accused-appellant in the early morning of the ill-fated day. 17
The second witness presented by the prosecution was Mario Vinculado.
He testified that he has been a resident of Brgy. Santa Cruz, Hilongos,
Leyte, since his birth and, as such, he knows both accused-appellant and
the victim. 18 Sometime in the second week of August of 1995, he went to
Ampayon, Butuan City together with a police officer named Lumayno from
the Hilongos Police Station. 19 He went to the said town because he was
requested by Roberto Lasquite to accompany police officer Lumayno in
ascertaining whether accused-appellant was indeed in Ampayon pursuant
to an information sent by the Butuan Police Station to the Hilongos Police
Station. 20 When they arrived in Ampayon, they went to the municipal jail
where they found accused-appellant being investigated by the
police. 21 After the investigation, accused-appellant asked Vinculado if
they could have a talk. 22 During their conversation, accused-appellant
informed Mario Vinculado that he had a companion when he assaulted
Bonifacia Lasquite 23 and that he was only able to stab the victim twice in
the breast. 24 Upon Mario Vinculado's return to his hometown, he
informed the Hilongos police and Roberto Lasquite of the admission made
to him by accused-appellant.

3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L)
parasternal line;
4. Depressed fracture (L) parieto-occipital area;
The prosecution then presented Dr. Conrado Abiera as its expert witness.
He testified that on 23 April 1995, he conducted an autopsy on the victim
and, correspondingly, accomplished a gross autopsy report. 25 The gross
autopsy report reads:

5. Hematoma formation, lower jaw and at the base of the neck; BONIFACIA FABON 64 years
Name: Age:
LASQUITE old
6. Multiple hematoma formation at the epigastric area, RUQ and anterior Brgy. Sta. Cruz,
chest well; which clearly evince the manifest and intentional mutilation of Address: Sex: Female
Hilongos, Leyte
victim's person or corspe (sic); and likewise on the same occasion of the
robbery, rape has (sic) been committed by the same accused on the person Civil
of the victim, BONIFACIA LASQUITE, as shown by the autopsy report, thus; Occupation: Housekeeper Widow
Status:

7. Hematoma formation noted on both sides of vaginal canal and near Requesting Jaime S. Yamba
urethral opening; Officer: Sr. Insp. PNP
Acting Chief of Police
8. Hematoma formation (L) hand, dorsal aspect of metacarpo-phalangeal Date & Time ofApril 23, 1995 at 2:10
joint; Autopsy: p.m.

9. Tonge (sic) half bitten and directed to the right side.
ACTS CONTRARY TO LAW.2
Upon being arraigned on 26 September 1995, accused-appellant, assisted
by counsel de oficio, Atty. Mario Alonzo of the Public Attorney's Office,
pleaded "not guilty" to the offense charged.3
The prosecution presented Benjamin Milano, the nine (9) year old nephew
and neighbor of the accused-appellant, as its first witness. He testified that
on 23 April 1995, at around five o'clock in the morning, he was awakened
by his mother to fetch water for their morning meal. 4 Bringing along a
container, he then proceeded to the water pump of Bonifacia Lasquite,
located at the back of the latter's house.5 After filling up his container, he
then went on his way home.6 However, while still near the house of
Bonifacia Lasquite, he noticed that someone was coming from the fence of
Bonifacia Lasquite's house.7 Although it was still a little dark,8 he
recognized it to be his uncle, accused-appellant.9 While standing only five
(5) meters way, 10 accused-appellant asked him: "Toy, is there somebody
Page 22 of 71
Brgy. Sta. Cruz,
Place of Autopsy:
Hilongos, Leyte
General Survey: Fairly build (sic), fairly nourished, fairly developed, whole
body covered with with (sic) blanket, when removed the face is (sic)
covered with moist, torned (sic) cloth the upper half of the body covered
with cloth and lower half naked, in the state of cadaveric spasm with
hematoma formation on the jaw and base of the neck, lacerated wound on
the forehead, stabbed (sic) wound on the anterior chest wall and multiple
hematoma formation on the anterior chests wall.
Pertinent Findings:
1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with
a depressed skull fracture.
2. Stabbed (sic) wound (punctured-like) at the (R) side of epigastric area.
3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L)
parasternal line.
4. Depressed fracture (L) parieto-occipital area.
5. Hematoma formation, lower jaw and at the base of the neck.
6. Multiple hematoma formation at the epigastric area, RUQ and anterior
chest wall.
7. Hematoma formation noted on both sides of vaginal canal and near the
urethral opening.
8. Hematoma formation (L) hand, dorsal aspect of metacarpo-phalangeal
joint.
9. Tongue half-bitten and directed to the right side.
Cause of Death Internal Hemorrhage due to stabbed (sic) wound at the
heart and liver area. Suffocation secondary to strangulation.
(signed)
DR. CONRADO B. ABIERA III
Medical Officer III 26
During his testimony, Dr. Abiera clarified the statements he made in the
gross autopsy report. He stated that lacerated wound in the victim's
forehead and the depressed skull fracture, reported as the first item under
the heading Pertinent Findings, signified that the victim was hit with a
blunt instrument which could have been a stone, a piece of wood or the
back portion of a bolo. 27 He added that the same blunt instrument may
have also been used in the depressed fracture in the parieto-occipital
area. 28 Dr. Abiera also explained that the punctured-like stab wounds,
reported as the second and third items under the heading Pertinent
Findings, meant that the assailant used an instrument similarly shaped as
an ice pick or a sharpened welding rod. 29 With regard to the hematoma
formation at the lower jaw and at the base of the neck, reported as the fifth
item above, this signifies that the victim was strangled. 30 Dr. Abiera added
that the strangulation of the victim caused her to struggle for air and, in
the process, she probably bit her tongue which, thus, accounts for the
finding in the ninth item above. 31 He concluded that this strangulation
could not have been caused by a wire or a rope since these instruments
would have left marks in the neck of the victim. In his expert opinion, Dr.
Abiera deduced that the victim was strangled through the use of a
handkerchief or some other piece of cloth. 32 With regard to the hematoma
formation in the vaginal canal and near the urethral opening, the seventh
item above, he explained that this could mean that the victim was
raped. 33However, he clarified that he cannot assert such conclusion with
certainty because he did not examine if there were sperm cells in the
victim's vagina since the autopsy was conducted in a barrio where there
was no laboratory. 34Looking at the gross autopsy report in its entirety, Dr.
Abiera concluded that the assault on the victim could have been done by
more than one assailant considering that three devices were used in
attacking the victim, i.e., a blunt object, an ice-pick like tool and a cloth-like
instrument. On the aspect of mutilation, Dr. Abiera stated that no vital part
of the victim's body was severed which, thus, negates mutilation. 35
The fourth and final witness for the prosecution was the son of the victim,
Roberto Lasquite. He testified that on 22 April 1995, he went with a friend
to Sitio Panas, Brgy. Bilibol, Southern Leyte, to attend a fiesta. 36 He stated
in the said place until the following day. On 23 April 1995, at around ten
o'clock in the morning, a certain Costan Taping informed him that his
mother was dead. 37 He immediately went home together with Costan
Taping and his fiancee and arrived at their house at noon of the same
day. 38 He found his mother lying dead on the kitchen floor with their
things scattered. 39 When he searched for the shell where they kept their
money, it was no longer in its hiding place in their cabinet. 40 Inside the
missing shell was the Twenty Five Thousand Pesos (P25,000.00) that was
Page 23 of 71
sent to them by the victim's sister who lives in Denmark. 41 Later on in the
day, Benjamin Milano informed him of his encounter with accused-
appellant while he was fetching water. 42 Because of this, he and the
barangay tanods looked for accused-appellant. 43 They searched for
accused-appellant for more than a month but could not find him. 44 He only
learned about the whereabouts of his mother's assailant when he was
informed by police officer Lumayno that accused-appellant had been
arrested in Butuan City. 45 Roberto Lasquite than went to their councilor,
Mario Vinculado, to request the latter to go to Butuan City and confirm, if
accused-appellant indeed killed his mother.
In his defense, accused-appellant took the witness stand and denied the
accusations against him. He testified that he was registered as a resident
of Brgy. Bliss but he actually resides in the house of his brother in Brgy.
Sta. Cruz, 46which is around 380 meters away from the house of Bonifacia
Lasquite, her aunt. 47 He stated that in the morning of 22 April 1999, he
was with his live-in partner, Prima Naul, washing clothes since they were
preparing to leave for Butuan City the following day 48 in order to look for
her live-in partner's long lost father. 49 At noon of the same day, he and
Prima Naul went to his mother's house to have lunch. 50 They left his
mother's house at around one o'clock in the afternoon and returned to
their house. 51 He turned in for bed at around nine o'clock in the evening
and woke up at 5:30 a.m. the following day, 23 April 1995. 52 He then
prepared their provisions for their Butuan trip and finished at around
8:00 a.m. 53 Thereafter, he went to the house of the Brgy. Captain of Brgy.
Bliss to get a residence certificate. 54 He was informed by the Brgy. Captain
that he can get his residence certificate from the Brgy. Secretary, Mrs.
Lumayno. 55 He went to the house of Mrs. Lumayno and was able to get a
residence certificate. 56 He and his live-in partner then proceeded to
Butuan City and arrived thereat in the morning of the following
day. 57 During their stay in Butuan City, they ware unable to locate her live-
in partner's father. When inquired upon with regard to the testimony of
Benjamin Milano, accused-appellant denied that he saw the child in the
morning of 23 April 1995. On cross-examination, accused-appellant
testified that he does not know of any reason why Benjamin Milano
testified the way he did. 58 He also admitted having seen Mario Vinculado
in the police station while he was incarcerated and being investigated in
Butuan City on account of another charge for robbery. 59 Despite his
having seen Mario Vinculado, he denies having spoken with the latter and
that he admitted to killing the victim. 60 He reasoned that he was unable to
speak with Mario Vinculado since he was being investigated by the
police. 61 He also stated that when he left for Butuan City, he was not aware
that Bonifacia Lasquite was dead. 62 He, however, admitted that while he
was in Butuan City, he was informed by a certain Citas about the killing of
the victim and that he was being made responsible for the
same. 63 Nevertheless, despite learning of this matter, he admitted not
having exerted any effort to inform Roberto Lasquite of his innocence and
justified his complacency with the excuse that he had differences with
Roberto Lasquite. 64 Their differences arose sometime in 1992 when he
was accused by Roberto Lasquite of having stabbed the latter's
carabao. 65 Accused-appellant also admitted having escaped from prison
during the pendency of the present case before the lower court. 66 He was,
however, recaptured by prison guards for which he suffered a gunshot
wound. 67 When asked why he escaped, accused-appellant reasoned that
his decision to escape was due to the fact that he was denied his conjugal
visits by prison authorities since Prima Naul was only his live-in
partner. 68
The second and last witness presented by the defense was Remedios
Lumayno, the secretary of the barangay who issued accused-appellant's
residence certificate. 69 She corroborated the testimony of accused-
appellant that the latter obtained a residence certificate from her on 23
April 1995 at around eight o'clock in the morning. 70 She also stated that
when accused-appellant secured his residence certificate, the latter
explained to her that he was going to use it for his trip to Marangog where
he will harvest coconut. 71
In its Decision, dated 15 December 1997, the lower court convicted
accused-appellant of the crime of robbery with homicide and rape
aggravated by dwelling. The pertinent portion of the decision reads:
There having been sufficient and convincing evidence by the prosecution,
the court finds and so holds the accused liable for robbery with homicide
and rape as charged. Robbery with Homicide is defined and penalized
under Article 294, number 1 of the Revised Penal Code, as amended by
R.A. 7659 with the penalty of Reclusion Perpetua to Death, when by reason
or on occasion of the robbery, the crime of Homicide shall have been
committed or when the robbery shall have been accompanied by rape or
intentional mutilation or arson. The homicide committed by the accused
on the occasion of the robbery of victim Bonifacia Lasquite was
perpetrated inside her home. Consequently, the aggravating circumstance
of dwelling should be appreciated to maximize the penalty.
WHEREFORE, premises considered, the Court finds the accused LOCSIN
FABON, alias "Loklok" GUILTY beyond reasonable doubt of the crime of
Robbery with Homicide and Rape, penalized under Article 294, number 1
of the Revised Penal Code, as amended by R.A. 7659 and there being
aggravating and no mitigating circumstance hereby SENTENCES him to
suffer the maximum penalty of DEATH.
In addition, the accused is ordered to pay the heirs of the victim Bonifacia
Lasquite the following sums:
a. P50,000.00 as indemnity for Bonifacia Lasquite's death;
b. To pay the sum of P25,000.00 by way of reparation of the stolen cash
money.
Cost taxed against the accused.
SO ORDERED. 72
The case is now before us on automatic review pursuant to Section 10 of
Rule 122.
Parenthetically, we note that the trial court inaccurately designated the
crime committed as "robbery with homicide and rape." 73 When the
special complex crime of robbery with homicide is accompanied by
another offense like rape or intentional mutilation, such additional offense
is treated as an aggravating circumstance which would result in the
imposition of the maximum penalty of death. 74 In the case of People
vs. Lascuna, 75 we said:
We agree with the Solicitor General's observation that the crime
committed was erroneously designated as robbery with homicide, rape
and physical injuries. The proper designation is robbery with homicide
aggravated by rape. When rape and homicide co-exist in the commission
of robbery, it is the first paragraph of Article 244 of the Revised Penal Code
which applies, the rape to be considered as an aggravating circumstance. .
. . 76
We now come to the merits of the case.
The core issue the instant case is whether the circumstantial evidence on
record forms an unbroken chain which leads to the conclusion that
accused-appellant committed the crime for which he is being made
accountable for, to the exclusion of all others. Circumstantial evidence is
defined as that which indirectly proves a fact in issue. 77 Under Section 4
of Rule 133 of the Revised Rules on Evidence, circumstantial evidence is
sufficient to convict an accused if the following requisites concur: (a) there
is more than one circumstance; (b) the facts from which the inferences are
derived are proven; and (c) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt.
The peculiarity of circumstantial evidence is that the guilt of the accused
cannot be deduced from scrutinizing just one particular piece of evidence.
It is more like a puzzle which, when put together, reveals a convincing
Page 24 of 71
picture pointing towards the conclusion that the accused is the author of
the crime.
In the case at bar, the circumstantial evidence presented by the
prosecution clearly establishes the guilt of accused-appellant and
overpowers his defense of denial and alibi. Aside from the fact that denial
and alibi are inherently weak defenses, accused-appellant's alibi of being
in his house at 5:30 in the morning does not preclude his physical
presence in the house of the victim considering that their respective
residences are only 380 meters apart. Moreover, the proven
circumstances in the instant case, when viewed in their entirety, are as
convincing as direct evidence and, as such, negate the innocence of
accused-appellant, to wit: (1) accused-appellant was present at the scene
of the crime; (2) he had blood stains on his body and clothes, had a bolo
tucked in his waist and was carrying a plastic bag when he was seen
leaving the scene of the crime; (3) he left Brgy. Sta. Cruz for Butuan City
on the same day when the victim was killed; (4) he admitted to Mario
Vinculado that he killed the victim; (5) he did not even bother to inform
Roberto Lasquite of his alleged innocence despite having learned that he
was being made accountable for the death of Bonifacia Lasquite; (6) he
could not think of any reason as to why Benjamin Milano, his nephew,
would lie in testifying against him; and (7) he escaped from incarceration
during the pendency of this case before the lower court. Clearly, the
foregoing evidence is consistent with the culpability of the accused and
inconsistent with his defense of denial and alibi. Not the least worthy of
notice is the fact that accused-appellant twice sought to escape liability:
first, on the day that the victim was killed and second, while he was
incarcerated in prison. As has often been repeated, flight is a strong
indication of guilt. 78 The reasons put forward by accused-appellant to
justify the two instances when he fled, i.e., first, to look for his live-in
partner's long lost father and second, because he was denied conjugal
visits, are simply too lame and whimsical to merit credibility. Moreover, if
the purpose of his trip to Butuan City was to look for his live-in partner's
father, why did he not return immediately to Brgy. Sta. Cruz after he and
his live-in partner failed to locate the whereabouts of the said father? The
only logical reason would be that he was avoiding something in Brgy. Sta.
Cruz. However, despite his efforts to escape from the long arm of the law,
it still caught up with him in Butuan City.
In the appreciation of evidence in criminal cases, it is a basic tenet that the
prosecution has the burden of proof in establishing the guilt of the accused
for all the offenses he is charged with — ei incumbit probetio non qui
negat. 79The conviction of accused-appellant must rest not on the
weakness of his defense but on the strength of the prosecution's evidence.
In the present case, it is the opinion of the Court that although the
prosecution has sufficiently established accused-appellant's guilt for the
crime of robbery with homicide, it has, however, failed to substantiate the
alleged aggravating circumstances of rape and intentional mutilation. As
testified upon by the prosecution's expert witness, Dr. Abiera, it cannot be
conclusively stated that the victim was raped. Due to the fact that the
entirety of the evidence presented in this case are all circumstantial, the
fact that the victim was no longer wearing her underwear when her
cadaver was discovered and that the victim had hematoma formations on
both sides of vaginal canal and near the urethral opening cannot
conclusively prove that she was raped. Moreover, the aggravating
circumstance of intentional mutilation cannot also be appreciated since,
as also testified upon by Dr. Abiera, no vital body part was severed.
Likewise, the fact that the victim's tongue was half-bitten does not prove
intentional mutilation since it could have been caused by the victim
herself when she was fighting to breathe for air while she was being
strangled by accused-appellant.
However, despite our finding that accused-appellant cannot be made
liable for the aggravating circumstances of rape and intentional
mutilation, a finding which would have lowered the penalty in the instant
case to reclusion perpetua, accused-appellant will still have to suffer the
supreme penalty of death due to the attendance of the aggravating
circumstance of dwelling 80 which was alleged in the information and duly
proven during the trial. Dwelling is considered aggravating primarily
because of the sanctity of privacy that the law accords to the human
abode. 81 In People vs. Cabato, 82 we ruled that: "Dwelling is aggravating in
robbery with violence or intimidation because this class of robbery can be
committed without the necessity of trespassing the sanctity of the
offended party's house." 83
The penalty for robbery with homicide is reclusion perpetua to death
which is composed of two (2) indivisible penalties.1âwphi1 Applying
Article 63 of the Revised Penal Code, the imposable penalty in the present
case is death due to the presence of the aggravating circumstance of
dwelling and the absence of any mitigating circumstance.
Although four Justices continue to maintain that Republic Act No. 7659,
insofar as it imposes the death penalty, is unconstitutional, they
nevertheless submit to the ruling of the majority that the law is
constitutional and that the death penalty should accordingly be imposed.
IN VIEW Of THE FOREGOING, the Court finds the accused Locsin
Fabon, alias "Loklok." guilty beyond reasonable doubt of the crime of
"robbery with homicide" under Article 294 (1) of the Revised Penal Code,
as amended by Republic Act No 7659, 84 with the aggravating
circumstance of dwelling, and hereby sentences the said accused to suffer
the supreme penalty of death, to indemnify the heirs of Bonifacia Lasquite
in the amount of Fifty Thousand Pesos (P50,000.00) and to pay Twenty
Five Thousand Pesos (P25,000.00) as actual damages for the stolen
money.
In accordance with Section 25 of Republic Act No. 7659, amending Article
83 of the Revised Penal Code, upon finality of this decision, let copies of
the records of this case be forthwith forwarded to the Office of the
President of the Philippines for possible exercise of clemency or
pardoning power.
SO ORDERED.1âwphi1.nêt
ROBBERY WITH RAPE
G.R. No. 136394 February 15, 2001
PEOPLE OF THE PHILIPPINES, plaintiff- appellee,
vs.
HERSON NAAG y LOBAS, accused-appellant.
PUNO, J.:
One of the more interesting conceptual exercises in the field of Criminal
Law is the characterization of a crime. The challenge is not only to prove
existence of its elements. The challenge is to correctly categorize it. In the
case at bar, a man sexually defiled then immediately divested his woman-
victim of her belongings. Is he guilty of the special crime of
Robbery with Rape or the separate crimes of Robbery and Rape? The
answer lies in his intent.
The accused in this case is a certain indicted for Robbery with Rape under
an Information which reads:
"That on or about the 8th day of January, 1996 at Daraga, Albay x x x the
above named accused, armed with a screw driver, by means of violence
and intimidation, did then and there willfully, unlawfully and feloniously,
have carnal knowledge of the complainant Desiree Gollena, against her
will, by inflicting upon her with the use of said screw multiple serious
physical injuries, and thereafter said accused, having been fully satisfied
of his carnal lust over said Desiree Gollena and believing her to be dead,
with intent of gain, divested and took her personal belongings, to wit: (1)
one bag containing clothes worth P500.00 (2) one gold bracelet worth
PI,500.00 (3) wallet containing Pl,800.00 and (4) ladies wristwatch valued
at P600.00 to the damage and prejudice of said Desiree Gollena.
Page 25 of 71
ACTS CONTRARY TO LAW."1
He pleaded "not guilty" during arraignment and the action proceeded to
trial.
The evidence for the prosecution shows that Desiree was a singer in a
band which regularly plays at the Gloss and Glitters Disco located in
Tabaco, Albay. On the morning of January 8, 1996, she went home to Sipi,
Daraga, Albay, to visit her family. She took the bus and by about 4 o'clock
in the morning, she alighted at the town's Freedom Park in Daraga. She
crossed a street where two tricycles were parked. She woke up one of the
drivers and inquired whether she could be brought to Sipi. Getting a
positive response, she boarded it. Upon reaching her place, she told him to
stop and handed to him her fare. To her surprise, what she received in
return was not loose change, but a slap.
The driver then began to maul her. Desiree fought back as hard as she
could, but this made the driver more ferocious in his assault. She was
strangled, boxed and kicked. She was repeatedly stabbed with a screw
driver on her face, head, and different parts of her body. Her head was
banged against the sidecar. She realized that her struggle was in vain and
would only put her life in greater danger. She stopped resisting and
pretended to be dead.
He then transported her to another place. He lifted her from the tricycle
and she thought she would be thrown to a ravine or cliff beside what
appeared to be an abandoned house. lnstead, she was tossed to the
ground, The driver removed her pants and panties. She could not resist,
fearing death, After her garments were removed, her legs were spread
apart and he copulated with her.
After satisfying his lust, the driver took her wristwatch worth P600.00, a
bracelet worth P1,500.00 and fled with her bag containing her clothes,
wallet containing P1,800,00 in cash, and some loose change. When Desiree
sensed that he has left the premises, she rolled down the ravine. She did
not have the energy to stand and walk and so she crawled until she
reached a house, which turned out to be the dwelling place of witness
Engineer Antonio Balacano located at Sybil Subdivision, Sipi, Daraga. She
cried for help.
Engr. Balacano responded to Desiree's call for assistance. He saw Desiree,
a bloodied girl, cold and torn, squatting by the gate with her pants down
and hanging on one leg. It was already 5 o'clock in the morning. The wife
of the engineer telephoned local police authorities for assistance. In the
meantime, Desiree was brought to the Albay Provincial Hospital where
she was given medical treatment. Dr. Jose Solano testified that the girl was
in pain when he examined her and that she sustained multiple lacerations
and stab wounds on different parts of her body, and had blackening of her
left and right eyes. Dr. Aileen Francis Bartilet examined Desiree's genitalia
and noted the absence of any sign of injury: there was no bleeding, no
laceration of the hymen, no contusion in the vulvar wall of the vagina, and
no abrasion.
Later that morning of January 8, 1996, policemen came to the hospital to
investigate the incident. Desiree gave a description of the suspect as well
as the tricycle. The next day, on January 9, SPO1 Pastor Perena Jr. and SPO
2 Domingo Mabini happened to apprehend one Herson Naag y Lobas, a
tricycle driver, for driving a public utility tricycle without the necessary
license. Naag and the vehicle were brought to the police station of Daraga.
Perena and Mabini realized that Naag fit the description of the malefactor
given by Desiree. They brought the confiscated student driver's permit of
Naag (which contains his photograph) to the hospital for identification.
Their hunch was confirmed when Desiree, upon being shown the permit,
identified the man in the picture as the one who raped and robbed her.
When the policemen returned to the station, Naag was already gone, but
not without leaving his tricycle behind. They brought the tricycle to the
hospital for identification. Desiree did not have any difficulty in identifying
the tricycle as the same vehicle she boarded on the morning of January 8.
A criminal complaint was then filed against Naag. On February 25, 1996,
he was arrested by the NBI agents of Naga City at Tagkawayan, Quezon.
The accused alleged, in his defense, that it was impossible for him to be
the author of the crime at bar. He claimed that at the time and date of the
incident, he was sleeping in their house approximately seven kilometers
away from where it happened. His tricycle was not in a serviceable
condition then, and he was repairing it the night before. It was fixed only
on January 9 since he was able to buy the spare part that he needed at
about 8:30 a.m. of January 8. The previous day was a Sunday and almost
all of the motor shops were closed. Hence, he alleged that he could not
have operated on the Sipi route on the 8th as his tricycle was not in
running condition. He explained that he was in Tagkawayan when he was
arrested because he had undergone hospitalization and was on an errand.
The defense also called two other witnesses to the stand who backstopped
the testimony of the accused. It presented his wife who basically
reiterated the story of her husband. She said that he was with her from the
night of January 7 up to the morning of January 8, at about 8:30, when he
had to buy the spare part that he needed for his tricycle. Similarly, it
presented a certain Lino Era, a next-door neighbor who recalled seeing the
accused at about 10 o'clock in the evening of January 7 doing some repairs
on his tricycle.1âwphi1.nêt
In the end, the trial court chose not to believe Naag, It held:
The accused in his defense put up alibi, a shabby excuse, a defense
indicties never seem to tire of. (People vs. Bracamonte, 257 SCRA 380)
This defense of the accused cannot prevail over the positive identification
by the victim Desiree of the accused and of the tricycle. This defense of
alibi is worthless in the face of his being positively identified by the victim
Desiree. (People vs. Rivera, 242 SCRA 26)"2
However, the trial court did not convict him of the crime he was originally
charged with, which is Robbery with Rape. Instead he was meted out two
different sentences for the separate crimes of Robbery and Rape, viz:
"WHEREFORE, premises considered, the accused Herson Naag y Lobas is
hereby found GUILTY beyond reasonable doubt of the crime of Rape under
Art. 335 (1) of the Revised Penal Code as amended, and he is hereby
sentenced to suffer the penalty of imprisonment of Reclusion Perpetua
with all the accessory penalties thereto appertaining, to pay Desiree
Gollena P50,000.00 as Indemnity and P50,000.00 as moral damages.
The accused Herson Naag y Lobas is also found GUILTY beyond reasonable
doubt of the separate crime of Robbery under Art. 294 (4) of the Revised
Penal Code, and taking into consideration the Indeterminate Sentence
Law he is hereby sentenced to suffer the penalty of imprisonment of ten
(10) years of Prision mayor medium in its maximum period as the
minimum to fourteen (14) years, ten months and twenty (20) days of
Reclusion Temporal medium period in its medium period as the maximum
and to return the ladies wrist watch worth P600.00, bracelet worth
P1,500.00, bag of clothes worth P500.00 or their total value of P2,600.00
if return cannot be had and the cash of P1,800.00. Costs against the
accused.
SO ORDERED."3
Dissatisfied with the verdict, the accused interposed this appeal. In his
brief, he made this lone assignment of error: "The Lower Court erred in
finding the accused guilty of the separate crimes of Robbery and Rape."4
We affirm the conviction.
There is no cogent reason to disturb the findings of the lower court. Well-
entrenched is the rule that an appellate court will generally not disturb
the assessment of the trial court on factual matters considering that the
Page 26 of 71
latter, as a trier of fact, is in a better position to appreciate the same. The
only exceptions allowed are when the trial court has plainly overlooked
certain facts of substance which, if considered, may affect the result of the
case, or in instances where the evidence fails to support or substantiate
the lower court's findings and conclusions, or where the disputed decision
is based on a misapprehension of facts. 5 This case does not fall under any
of the exceptions. Hence, there is no reason for us to modify the factual
findings of the lower court.
Even then, the appellant raises two points in support of his assignment of
error designed to sow in our minds seeds of doubt. The first relates to the
medical evidence on record while the second deals with his identity.
The appellant capitalizes, firstly, on Dr. Bartilet's testimony on the absence
of fresh injury on the private part of the offended party although she was
examined almost immediately after the assault. According to him, the
findings of said medical expert negate the charge of rape. On the other
hand, the prosecution contends that the lack of injury and the healed
laceration could be attributed to the sexual intercourse she had with her
boyfriend.
The appellant's argument fails to impress. It is to be noted that Dr. Bartilet
herself explained that her findings did not eliminate the possibility of
sexual intercourse. She opined that it must have been done "only outside
the vagina: but within the external vulva by merely pushing and giving
some force to it."6 She added that the appellant could have ejaculated and
discharged semen on the external genitalia even without penetrating into
the vagina.
In rape cases, what is material is that there is penetration of the female
organ no matter how slight.7 In a long line of decisions, we have ruled that
the only essential point is to prove the entrance or at least the introduction
of the male organ into the labia of the pudendum.8 Hence, the moment the
accused's penis knocks at the door of the pudenda it suffices to constitute
the crime of rape.9
The appellant next assails the identification made by Desiree. He contends
that it was still dark at the time of the incident. He argues that when people
board a tricycle, they do not usually focus their attention on the driver. He
states that the identity of the driver could be the least of Desiree's concern
for at 4 o'clock in the morning, she would have just wanted to go home and
rest in the comfort of her bed.
We are not persuaded. Desiree could not have failed to recognize the
appellant because she was the victim of the assault. A truism founded on
ordinary experience is that victims of criminal, violence often strive hard
to recognize their assailants.10 Furthermore, a victim has a natural knack
in remembering the face of an assailant for she, more than anybody else,
would be interested in bringing the malefactor to justice. 11 On the other
hand, it would be unnatural for someone who is interested in vindicating
the crime to accuse somebody other than the real culprit.12
To be sure, Desiree was very emphatic in her identification of the
appellant as her assailant, thus:
"Court: Now that person Herson Naag, how is he related to the accused
in this case?
Desiree : He is the one and same person who raped and robbed me.
Q: You said it was the first time you saw the accused on January 8, 1996.
It was still dark is (sic) it not?
A: It was bright at the centro.
Q: But it was not in park (sic) he was sleeping at that time in his tricycle.
Is it not? (sic)
A: It was bright because there were lights.
Q: But you saw him only once on Jan. 8, 1996. How were you able to
recognize him in the Municipal building when you were asked to identify
him after one month, being detained?
A: As I have said, I can never forget his face."13
Moreover, Desiree should have no difficulty in identifying the appellant
because when she first approached him at the centro to hire his services,
the place was bright and well-lighted.
The appellant further argues that Desiree's initial identification of him
through his picture is unreliable considering the physical and emotional
state she was in at that time. It is urged that due to her physical and mental
instability, the showing of the student permit must have generated a
prejudice ill her mind that "the person shown in the picture of the driver's
ID is the one who assaulted her."14
The argument proceeds from a wrong assumption. It assumes that the
picture was shown before the victim gave the description to the police. It
was the other way around. Thus:
"Court: Have you seen him in that parking area before January 8, 1996?
Desiree : No, your honor.
Q: Now, while you were in the Hospital you said that an ID was shown
to you and the picture of a person and whose picture you recognize to be
that of a person who raped you. Who showed you that picture?
A: The Police Officer.
Q: How come that the Policeman was able to go to Albay Provincial
Hospital with that ID?
A: Because when they interviewed me in the hospital, I gave them the
description of the accused and his tricycle."15
The point is made more explicit during Desiree's cross-examination:
"Atty. Gomez (continuing on cross-examination)
Q: Now, on that date Jan. 9, 1996 were you told by the policemen that
the person whose ID was shown to you was one of their suspects?
A: The policeman told me to identify the person in the ID.
Q: Were you told that the owner of the ID was apprehended for
violation of traffic law?
A: No, Sir. I was just asked to identify him.
Q: After the ID was shown to you that was the time when you also gave
them the description of the person, is (sic) it not?
A: No, Sir. It was on Jon. 8,1996 when I gave the description of the
tricycle driver."16
We shall now ascertain the nature and extent of the criminal responsibility
of the appellant. The issue is whether the crime committed by him is
Robbery with Rape or the two separate felonies of Robbery and Rape.
Page 27 of 71
In the special complex crime of robbery with rape, the true intent of the
accused must first be determined because it is his intent that determines
the offense he has committed. This Court in People vs. Dinolo,17 citing the
cases of People vs. Conostre18 and People vs. Foigono,19 held:
"x x x if the intention of the accused was to rob, but rape was committed
even before the asportation, the crime is robbery with rape. But if the
original plan was to rape but the accused after committing the rape also
committed the robbery when the opportunity presented itself, the offense
should be viewed as separate and distinct. To be liable for the complex
crime of robbery with rape the intent to take personal property of another
must precede the rape."
We must ascertain the force which moved the appellant when he
employed violence and intimidation against the person of Desiree. It is
true that the appellant raped Desiree before she was dispossessed of her
personal properties. This, however, is not decisive. Article 294 of the
Revised Penal Code does not distinguish whether the rape was committed
before, during or after the robbery. It suffices that the robbery was
accompanied by rape.20
We agree with the conclusion of the trial court that rape was the primary
intent of the appellant and his taking away of the belongings of the victim
was only a mere afterthought. Although the trial court did not state the
reasons for its ruling, there exists sufficient evidence on record from
where such deduction can be made.
First. It is obvious from the degree and character of the violence and
intimidation which the appellant employed (and when he employed it)
upon Desiree that his intent was to rape her. He applied such force as to
render her resistance to his lust inutile. The kind of force used was
unnecessary if he only planned to rob Desiree. On the other hand, the
excessive force was clearly meant to attain his lustful scheme. Resultantly,
when he finally forced his bestial desire on her, he was able to traverse, in
a manner of speaking, the path of least resistance.
Second. The appellant transported Desiree from where he first mauled
her to an abandoned place. All the time that Desiree was helpless after her
mauling, appellant did not concern himself with robbing Desiree even if
he could have done so with ease if not with impunity. Instead, he
preoccupied himself in finding a location more suited, nay, comfortable,
for his plan of lying, with her. Needless to say, an abandoned house fits
well.
Lastly, at no time did the appellant ask for the belongings of Desiree.
Neither did he search her for valuables, except for the wallet in her pants.
What is apparent is that he only: (1) took her watch and bracelet, both
easily seen and noticeable, and (2) fled with her bag which was already in
the tricycle. These overt acts only indicate that he decided to take Desiree
' s belongings as an afterthought and only when the opportunity presented
itself.
We disagree, however, on the ruling of the trial court that the appellant is
guilty of robbery. He should only be convicted of theft because, when he
took the personal properties of Desiree, the element of violence and
intimidation was no longer present. While it is true that he inflicted force
upon her person, that was with the view and in pursuance of the rape, not
of the taking. When the asportation happened, Desiree was near lifeless,
incapable of putting any form of opposition.
The penalty for theft is determined by the value of the property taken.
Under Article 309 of the Revised Penal Code, any person guilty of theft
shall be punished by "the penalty of prision correccional in its minimum
and medium periods, if the value of the thing stolen is more than 200 pesos
but does not exceed 6,000 pesos." Applying the Indeterminate Sentence
Law, the minimum penalty to be meted out on the appellant Naag should
be anywhere within the range of 2 months and 1 day to 6 months
of arresto mayor; and the maximum should be within the range of 6
months and 1 day to 4 years and 2 months of prision
correccional. Considering that no aggravating or mitigating circumstance
attended the commission of the crime, the appellant should be sentenced
to an indeterminate prison term of 4 months and 21 days of arresto
mayor maximum as the minimum, to 1 year, 8 months and 21 days
of prision correccional as the maximum.
IN VIEW WHEREOF, the impugned decision is hereby MODIFIED. The
accused-appellant Herson Naag y Lobas is found GUILTY beyond
reasonable doubt of the crime of RAPE under Article 335 (1) of the
Revised Penal Code as amended, and he is hereby sentenced to suffer the
penalty of imprisonment of reclusion perpetua with all the accessory
penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as,
indemnity and P50,000.00 as moral damages.
The accused-appellant Herson Naag y Lobas is also found GUILTY beyond
reasonable doubt of the separate crime of THEFT under Article 308 of the
Revised Penal Code, and taking into consideration the Indeterminate
Sentence Law, he is hereby sentenced to suffer the penalty of
imprisonment of 4 months and 21 days of arresto mayor maximum as
the minimum, to 1 year, 8 months and 21 days of prision correccional as
the maximum, and to return the ladies wristwatch worth P600.00,
bracelet worth Pl,500.00, bag of clothes worth P500.00 or their total value
of P2,600.00 if return cannot be made and the cash of Pl,800.00. Costs
against the accused.
SO ORDERED.
G.R. No. 135034 January 18, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADRIANO SEGUIS a.k.a. "JUNIOR", ROSALITO ESTEBE a.k.a.
"DODONG", RODRIGO DOQUILA a.k.a. "LOLONG" (At Large), ELMER
CANICO (At Large), LOLOY GIBERTAS (At Large), BERFEL DELA CRUZ
(At Large), and JOHN DOE (At Large), accused.
ADRIANO SEGUIS and ROSALITO ESTEBE, accused-appellants.
PUNO, J.:
Juliet A. Magamayo, a nineteen-year-old barrio lass from an obscure town
in Surigao del Norte complains that she has been ravished, then robbed by
seven men, who, following her accounts, were definitely no Romeos. She
claims they did not only forcibly take her gold ring, they stole her
innocence as well. She claims they did not only dispossess her of a gold
bracelet, they also divested her of her sense of security. She claims they
did not only deprive her of her last remaining fifty pesos, they denied her
furthermore a future.1âwphi1.nêt
Juliet pointed to the following men as the ones who committed the outrage
against her womanhood: Adriano Seguis a.k.a. Junior, Rosalito Estebe
a.k.a. Dodong, Rodrigo Doquila a.k.a. Lolong, Elmer Canico, Loloy Gibertas,
Berfel dela Cruz, and a certain John Doe. They were charged with the crime
of robbery with multiple rape and were indicted in an Amended
Information which reads:
"That on or about August 19, 1995, in Barangay Togbongon, City of
Surigao, Philippines and within the jurisdiction of this Honorable Court,
the above named accused, conspiring, confederating together and with
mutual understanding with one another, with lewd designs and by means
of force and intimidations (sic), did then and there willfully, unlawfully
and feloniously have carnal knowledge of Juliet A. Magamayo, while the
latter was already sleeping, by taking turns in raping her against her will
and without her consent and on same occasion, accused with intent to gain
and by means o violence and intimidation, took, stole and carried away the
following personal belongings of Juliet A. Magamayo, to wit:
Page 28 of 71
1. Gold Bracelet ------------------------------ P 500.00
2. Gold ring ------------------------------------- 4,000.00
3. Cash money -------------------------------- 50.00
TOTAL P4,550.00
In the total amount of FOUR THOUSAND FIVE HUNDRED FIFTY
(P4,550.00) PESOS, Philippine currency, to the damage and prejudice of
said Juliet A. Magamayo in the aforesaid amount of P4,550.00 and such
other damages as may be allowed by law.
Contrary to law.
Surigao City, Philippines, August 21, 1995."1
Of the seven accused, the record reveals that five of them remain at large.
Only the first two were placed under the custody of the authorities: Seguis
and Estebe, and they are the appellants in this case. During arraignment,
both entered a plea of NOT GUILTY. Trial then proceeded.
The prosecution's version of the story is based mainly on the private
complainant's recollection of what happened that dreadful night. The
offended party is one Juliet A. Magamayo, a nineteen-year old unmarried
girl residing at San Jose, Mainit, Surigao del Norte. According to her, in the
afternoon of August 18, 1995 at about 3 o'clock, she went to Barangay
Togbongon, Surigao City, a few kilometers away from the city proper. Her
purpose was to collect a loan of fifty pesos from Michael Balantucas, a
friend of long standing whom she met when she was still staying with her
elder sister in Togbongon. She arrived there after approximately one hour
of travel. As customary with friends, they exchanged pleasantries and
stories, and basically caught up with old times. A while later, accused Loloy
Gibertas and Elmer Canico who were on their way to fetch water passed
by the house. Michael introduced them to Juliet. They shook hands and
talked a little before the two eventually left. Michael then invited Juliet to
stay in their home for the night because darkness was closing in. Michael
was living with his younger brother Rolando and younger sister Lilibeth
since their parents already died. Juliet agreed as she has slept in the place
before. She thought that it was too late and perilous to go back home.
Little did Juliet know that, in a cruel twist of fate, danger would visit her in
the very refuge where she sought safety. Following a dinner of cooked
bananas plus a few more stories, she and the Balantucas siblings prepared
to retire. Juliet and Lilibeth slept in the house's only bedroom, which was
lighted by a kerosene lamp. Michael was just outside the room's doorway
while Rolando stayed in the sala. At about midnight, Juliet was awakened
by the noise brought about by the commotion of five men who entered the
house. She got up and saw Rodrigo Doquila pointing a knife at the throat
of a crouching Michael. She noticed that Lilibeth was not beside her
anymore as it turned out that the young girl went to the kitchen to relieve
herself. Afraid, she shouted for help to Michael who understandably could
not do anything being himself mentally preoccupied with, in a manner of
speaking, saving his own neck.
At this juncture, Elmer Canico grabbed the hair of Juliet and commanded
her to lie down on the floor. Loloy Gibertas held her right hand even as
someone else was holding her heft. She struggled and twisted her body, so
another man had to restrain her legs. Elmer Canico removed his pants and
brief, and knelt in front of her. He stripped Juliet of her pants and
underwear before continuing to place himself on top of the woman. He
inserted his penis into her vagina then made a push and pull movement.
Feeling pain, she fought to free herself. She kicked her legs but Canico did
not seem to mind a bit. After satisfying his lust, he stood up and put on his
pants. He replaced Lolong Doquila in guarding Michael with a knife.
The next time, it was Doquila who introduced his penis into the lady's
private part. Perhaps realizing the futility of her struggle, Juliet tried to
appeal to their sense of mercy. She begged him to stop, mainly because of
the pain. This also proved fruitless. He made the same push and pull
movements stopping only afterwards when he was able to satisfy his lust.
Doquila was replaced by Lolong Gibertas who had coital intercourse with
the hapless victim. Again she resisted and shouted for help. The men
around her told her to remain silent if she does not want to get killed.
Shortly, Gibertas stood up and informed Berfel dela Cruz that it was his
turn. Like the others before him, and like the others soon to follow, he
forced himself on Juliet. When he had his fill, the unidentified man also had
sexual contact with her.
Almost after the five predators finished ravaging their prey, Adriano
Seguis and Rosalito Estebe came into the room. Juliet already knew them
even before this incident. She recognized the two that night by means of a
flashlight when Estebe brought to illuminate the area. Earlier, the small
kerosene lamp had been extinguished by the five men. As expected, Estebe
laid himself on top of the girl, who fought weakly against her new
tormentor. He rammed his penis into her vagina. He got up on his feet only
after some minutes of sexual activity. Then Elmer Canico returned to the
bedroom and Juliet heard him announce that it was his turn again. For the
second time that early morning, he succeeded in copulating with her. The
last one to have carnal knowledge of Juliet against her will was Adriano
Seguis. The latter inserted his male organ into her private part and
performed the same push and pull maneuverings using his buttocks. The
victim begged him to stop for she could not bear it anymore. Seguis told
her to keep quiet.
When Seguis was done, he rose to his feet and went to the kitchen. He came
back with a plate of rice which he gave to the sobbing lady. Juliet
pretended to eat the rice only so that she would not be raped anymore.
She did not utter a word but cried a river of tears over her heartbreaking
experience. She requested Seguis to help her up and she sat down in a
corner. Rosalito Estebe was seated on a nearby trunk. When Seguis tried
to blame her for what took place, she answered that the five men sexually
abused her. Michael appeared and Juliet asked him how it happened.
Michael replied that he also did not know because they were all asleep
when the incident started. Seguis and Estebe warned them not to tell
anybody of what transpired otherwise they might all be killed. It was
about one o'clock in the morning when the two remaining accused left.
Juliet discovered later on that she had been despoiled of her gold ring
worth P4,000.00 and her gold bracelet worth P500.00. Furthermore, her
cash money amounting to P50.00 was no longer in her pant's pocket. She
admitted though that she was not aware who among the accused carried
away the aforementioned personal belongings while she was being
assaulted by them.
The prosecution presented two other witnesses who corroborated Juliet's
testimony. Michael Balantucas confirmed that the seven accused indeed
illegally entered their house and took turns in sexually defiling Juliet. The
rapes were committed right before his eyes. He observed how one by one
each of them was able to impose his own bestial will against the lady. He
very much wanted to help his visitor whom he only invited that night. But
as much as he wanted to, he could not do anything, since all the while that
the rape was going on, somebody was pointing a knife at his throat. He
was practically rendered impotent by the threat that something bad might
happen to him or his siblings.
For her part, Lilibeth Balantucas recounted, among other things, that she
woke up at around midnight to answer a call of nature. She went to the
kitchen to urinate when five men suddenly entered the bedroom. She
identified them to be the accused Elmer Canico, Lolong Doquila, Loloy
Gibertas and Berfel dela Cruz. However, she did not know the fifth person.
Tagging along were Adriano Seguis and Rosalito Estebe who pulled and
dragged her out of the house. She was able to recognize them because of
the light coming from an electric bulb located in the kitchen. Outside,
Seguis and Estebe ordered her to keep quiet, or else they would kill her.
Out of extreme fear, she did not make any sound. After about one hour,
Page 29 of 71
they also went inside the room. Lilibeth remained where she was as they
told her not to move.
Going back to Juliet's testimony, it appears that later in the morning of
August 19, 1995, someone fetched Francisco Pecante, a member of the
local CVO, who initially investigated the incident. Then he sought Perfecto
Pagas, the barangay captain of Togbongon. Together, they brought the
victim to the Surigao Provincial Hospital where she was physically
examined and medically treated.
The attending physician, Dr. Panfilo Jorge Tremedal III, testified that on
August 19, 1995, he was a resident doctor of the hospital. He checked up
the person of Juliet Magamayo who complained that she has been raped.
Among his findings was an abrasion of the labia majora. In his expert
opinion, the injury could have probably been caused by a blunt object like
an erect human penis. Another member of the medical staff was also
presented by the prosecution: Elsa Adlawan who was employed as a
medical technologies by the hospital. She declared that on the same date,
she received a vaginal specimen taken from Juliet for a laboratory
evaluation for the presence of spermatozoa. After conducting the required
tests, she determined the said specimen to be positive for spermatozoa.
With the prosecution resting its case, the defense made its counter-
presentation of the facts. It first offered Nilda Cabug-os, who, per her own
declaration, is a friend of the victim but not related to her. She recalled
that Juliet arrived at her house in Togbongon at about four o'clock in the
afternoon of August 18, 1995, purportedly to collect a sum of money
Michael Balantucas owed her. They have only conversed for a brief
moment when Juliet went her way, returning after about two hours in the
company of a male escort, one Jeffrey Lerio. Later, Juliet would again leave
the house with Jeffrey for an undisclosed destination. By the time the clock
struck eight, Juliet came back to the house. As a matter of hospitality, Nilda
extended an invitation to her guest to spend the night in their abode,
which invitation Juliet readily accepted. The latter was already sleeping
when some young men came to drop by. She rose to entertain her visitors.
More than that, she went out with them. And although she asked Nilda's
permission, she did not say where they were going. It was the last time she
saw her that night.
The next morning greeted Nilda with a neighbor's story that Juliet allowed
herself to have sexual intercourse with several men in the house of
Michael Balantucas. She replied that she and her husband cautioned her
about going out so late in the night but Juliet's persistence made them
yield. She remembered that Juliet was wearing maong pants and a blouse
on the day of the incident. She also wore a cheap wristwatch worth about
P35.00, a small belt worth approximately P30.00, a headband and shoes
made of cloth. She did not notice any fancy jewelry.
Another witness, Perfecto Pagas, gave evidence that he is a barangay
kagawad of Togbongon for three years, although a tricycle driver by
vocation. He came to know of Juliet not only because she is a frequent
passenger but allegedly due to her reputation in the locality of associating
herself with different men. According to Pagas, sometime in March 1995,
Juliet complained to him in the office of the barangay council that she was
raped by five men. She did not identify any names. The complaint was not
pursued as he heard later on that she has been paid. He admitted too that
he failed to enter the complaint in the official records on the excuse that
Juliet anyway did not return anymore.
In his defense, the accused Adriano Seguis testified that on March 9, 1995,
Juliet approached him and made a request for him to bear witness in a
rape case she was about to file. It was not clear whether this is the same
incident of the alleged rape that she complained to Kagawad Pagas. He
claimed that it was the first time that they met, although they became
acquaintances after. At any rate this is not the reason why he refused her.
He simply had no knowledge of the incident.
Seguis must have felt history repeating itself right before his very eyes. On
the morning of August 19, 1995, at 6 a.m., he arrived at the residence of
Michael Balantucas. He went there together with his co-accused Rosalito
Estebe pursuant to a prior agreement that they would help Michael in
harvesting his crop of palay. In the uncanniest of coincidences, Juliet, who
was already there when he arrived, again was apparently involved in
another case of rape which happened the previous night, and once more
asked him to testify for her. This time the request was coupled with a
threat that she would implicate him in the legal action if he refused to
cooperate. For the second time in as many instance, he rejected her plea.
For scorning her twice, he incurred her fury. She made good her threat and
implicated him.
In an unexpected turn of events, the defense called to the witness stand
Michael Balantucas who previously testified for the prosecution. He was
this time singing a different tune. He claimed that his conscience was
bothering him, and he could not suffer the burden of seeing two innocent
men go to jail. That is why he elected to testify even though he was aware
that he was courting criminal prosecution in changing his testimony.
Michael recanted his former testimony by declaring that in the evening of
August 18, 1995, he was staying at his house with Juliet and his siblings,
Rolando and Lilibeth, when at around ten o'clock, five men arrived. These
five were the accused Lolong Doquila, Elmer Canico, Loloy Gibertas, Berfel
dela Cruz, and a certain Rolando Ezperanza. They had a talk with Juliet
wherein it was agreed that they would "rent"2 her (i.e., have sex with her)
that night for a fee of one thousand pesos. While the lady supposedly kept
her part of the bargain, the men did not. Instead they even had the
audacity to take her bracelet and wristwatch when they left at about two
o'clock dawn. Juliet was enraged. She wanted to bring her "customers"3 to
court not to collect the bill but to charge them with rape. When Seguis and
Estebe arrived the next day, she asked the three of them (including
Michael) to testify in her behalf, otherwise she would implicate them. As
far as Michael knows, he was the only one who acceded to the lady's
demand.
Rosalito Estebe basically towed the same story line as the two other
witnesses. He testified that he knows Juliet as she often comes to
Togbongon where he lives. One time, on March 1995, he saw her engage
in sexual intercourse with multiple partners in their barrio. He himself did
not take part in the orgy. Later, she asked him to be her witness as she
intended to file rape charges against the persons who had sex with her. He
refused as he heard that she has been paid the sum of P1,000.00.
Subsequently on May 14, 1995, which was the fiesta in Togbongon, Juliet
again requested him to be a witness in the complaint for rape she has filed
against Ricky Antallan, Michael Balantucas, Jeffrey Lerio, Lolong Doquila,
Elmer Canico and Berfel dela Cruz. When he rejected her, she implicated
him in the present case.
In rebuttal, Juliet denied that she agreed to have sex with anyone for
P1,000.00. She reiterated her stand that she was abused by all seven men.
Furthermore, it is not true that she merely implicated Seguis and Estebe
after the two declined to be her witnesses. Both also had sex with her.
After trial, the lower court pronounced the following sentence: 4
"WHEREFORE, premises considered, the Court finds each of the accused,
Adriano Seguis or Adriano Seguis Jr. and Rosalito Estebe, guilty beyond
reasonable doubt as a principal (sic) of the crime of simple rape under
Article 335 of the Revised Penal Code, and hereby sentences each of them
to suffer the penalty of reclusion perpetua; and to pay one-half of the costs.
Each of the said accused is ordered to indemnify the victim, Juliet
Magamayo, in the amount of P50,000.00 for the rape committed by him." 5
Hence, the present appeal. In their brief, appellants raised the lone
assigned error, to wit:
"THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS
GUILTY THOUGH NOT OF THE CRIME CHARGED BUT ONLY OF SIMPLE
RAPE WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND
REASONABLE DOUBT."
Page 30 of 71
It is to be noted that the accused in this case were originally indicted for
the felony of robbery with multiple rape, a special complex crime
punishable under Art. 294, par. 1 of the Revised Penal Code and which is
committed "when the robbery shall have been accompanied by rape." The
said provision, needless to say, covers cases of multiple rapes. 6 This is
primarily due to the fact that the juridical concept of this crime does not
limit the consummation of rape against one single victim or to one single
act, making other rapes in excess of that number as separate, independent
offense or offenses. All the rapes are merged in the composite, integrated
whole that is robbery with rape, so long as the rapes accompanied the
robbery. It does not matter too whether the rape occurred before, during,
or after the robbery.
Still and all, this does not change the nature of the felony. It is essentially
a crime against property. The following are its elements: (1) the taking of
personal property is committed with violence or intimidation against
persons; (2) the property taken belongs to another; (3) the taking is done
with animo lucrandi; and, (4) the robbery is accompanied by rape. To
sustain a conviction, it is imperative that the robbery itself must be
conclusively established; just as the fact that it was the accused who
committed it the proved beyond reasonable doubt. The prosecution must
be able to demonstrate the level of their participation with legal and moral
certainty, including the existence of a conspiracy, if any. Otherwise, those
who were charged should be acquitted, at least for the robbery. Proof of
the rape alone is not sufficient to support a conviction for the crime of
robbery with rape.
This is exactly the factual conclusion of the trial court, whose findings, to
reiterate, "are accorded great weight and respect as trial judges are
undeniably in the best position to weigh the declaration of witnesses in
light of their opportunity to observe physically the witnesses' conduct and
attitude during trial."7 Thus said the court:
"x x x However there is no sufficient evidence pointing to the herein two
accused as the ones who divested the victim of her money and valuables.
The complainant herself admitted that she did not know who among the
many accused took her gold ring, bracelet and cash. All that she became
aware of after her horrible experience was she no longer had the
aforementioned items.
x x x There is a complete lack of evidence pointing to Adriano Seguis or
Rosalito Estebe as the ones who took the valuables in question. In the
absence of proof of conspiracy among the accused to commit the crime of
robbery, they are liable only for their own separate and individual acts."
But the lower court's finding of their non-participation in the robbery does
not mean that they are totally guiltless. They will still be held accountable
for whatever unlawful acts they may have committed, and for which acts
they were charged. In a criminal action for robbery with rape, where the
prosecution failed to prove the robo or the participation of the accused in
it, the latter may still be convicted for the rape. As already mentioned, the
trial court has ruled that the appellants had carnal knowledge of the
private complainant by using force and intimidation. It convicted them
of one count of rape each because there was no showing that they
conspired or assisted each other in committing those rapes.
We affirm the conviction.
This Court has steadfastly adhered to the rule that when a woman testifies
that she has been raped, and if her testimony meets the test of credibility,
the accused may be convicted on the basis thereof. 8 A rape victim who
testifies in a categorical, straightforward, spontaneous and frank manner,
and remains consistent, is a credible witness. 9 If her story had only been
contrived, she would not have been so composed and consistent
throughout her entire testimony in the face of intense and lengthy
interrogation.10> In the case at bar, the victim gave a direct and straight
narration of the events which only evinces the truthfulness of her
testimony. Her story is corroborated on its material points by an impartial
and unbiased witness, Lilibeth Balantucas, who has absolutely no personal
interest in the outcome of this suit. Also, the medical evidence is consistent Q : In Barangay Togbongon?
with the theory that the complainant had been a victim of rape.
A : Yes, sir.
In addition, Juliet's credibility is bolstered by her instantaneous report of
the crime to the police. The incident occurred in the early morning of Q : You knew him because you have stayed in Togbongon, Surigao City?
August 19, 1995, and the very next day, or on August 20, 1995, she
executed her affidavit before the authorities of the Surigao City Police.
A : Yes, sir. It was Jolly who introduced (sic) to me.
Besides, the appellants failed to prove any ulterior or improper motive
which could have induced the victim and her witness to testify against or Q : How were you able to recognize that it was Rosalito Estebe and
falsely implicate them in the commission of the crime.11 Indeed, if an Adriano Seguis who entered the room?
accused had really nothing to do with the crime, it is against the natural
order of events and human nature and against the presumption of good A : Because Rosalito and Adriano called for Michael "Tol".
faith that the prosecution witness would falsely testify against the
former.12 Thus, we adhere to the established rule that in the absence of
any evidence to show that the witnesses for the prosecution were actuated Q : My question, how were you able to recognize Rosalito Estebe and
by any improper motive, their identification of the accused-appellants Adriano Seguis.
should be given full faith and credit.13
A : Estebe was bringing (sic0 a flashlight.
Appellants' defense that they were merely implicated by Juliet as they
refused to testify in her favor is far from convincing. Both of them testified Q : How about Adriano Seguis?
that they are not even close friends of Juliet. As correctly pointed out by
the Solicitor-General, "It is quite contrary to human experience that a A : He was there sitting near the head of Michael.
woman would narrate to somebody how she was used sexually for a fee
(and was not paid) and thereafter request said person whom she hardly
knew to testify in her favor to support her complaint."14 Also, such motive Q : Was the room still lighted at that time.
if availing is attributable only to Juliet. The same cannot be imputed to the
other vital witness Lilibeth, who, to repeat, does not have any interest in A : No more, sir, only the flashlight.
this case and yet explicitly declared that appellants were among the seven
men who went to their house the night of August 18, 1995.
Q : Did you see the face of Rosalito Estebe?

In support of their lone assignment of error, the accused advanced several

arguments designed to destroy the credibility of the witness herself and A : Yes, sir.
then her testimony. We are not impressed by these arguments.
Q : How were you able to see the faces of Adriano Seguis and Rosalito
I Estebe?

Appellant's basic submission is a mere restatement of their defense. They A : The light from the flashlight was moving around.
assert that they were not present at the scene of the crime during the
supposed moment that it was unfolding. On the contrary, they arrived Q : Are you very sure that the two persons who came late were Adriano
there only at six o'clock the following morning allegedly to help Michael Seguis and Rosalito Estebe?
Balantucas harvest his palay.
A : Yes, sir." 16
Such submission must fail for obvious reasons. We have ruled that the
defense of alibi is inherently weak and crumbles in the light of positive
In addition, there is the testimony of Lilibeth Balantucas, pointing to the
declarations of truthful witnesses who testified on affirmative matters
two appellants as among those who entered their house at around
that the accused-appellants were at the scene of the incident and were the
midnight. Her testimonial narrative proved that Seguis and Estebe were
victim's assailants and perpetrators of the crime15 In the present case, the
in the Balantucas' residence at precisely or about the same time Juliet was
appellants were positively identified by the victim, thus:
being raped. It fort rightly contradicted the assertions of the two that they
arrived there only about six o'clock in the morning of the next day.
"Prosec. Menor: After that person was finished, what happened next? According to her:

Juliet : Then Adriano Seguis and Rosalito Estebe went up the house. "x x x

Q : Did they enter the room? Prosec. Menor: You said you slept at about 12:00 (sic) o'clock in the
evening, what time did you awake up?
A : Yes, sir. Rosalito entered the room first.
Lilibeth: At 12:00 because I want to urinate.
Q : By the way, do you know personally Rosalito Estebe?
Q : Where did you go after you wake (sic) up?
A : Yes, sir.
A : To the kitchen.
Q : For how long have you known him prior to the incident?
Q : When you reached the kitchen of your house, what happened next?
A : A long time, sir.
A : Then some men entered our room.
Page 31 of 71
Q : How many were they? II

A : Five persons. Appellants contend that private complainant is not credible as she is
known in the locality as a "scheming 19-year old woman, of loose morals,
Q : How about you? engaged in the oldest trade, and wise in her ways with the
world."20 Consequently, it is a misplaced gesture of sympathy and
compassion to consider her truthful and a paragon of a Filipina's inbred
A : I was outside because I was afraid and I was pulled. modesty and Christian virtues. The record, however, is bereft of any
evidence that Juliet is a woman for hire, except for the statements of
Q : By whom? witnesses Nilda Cabug-os, Perfecto Pagas, and appellant Rosalito Estebe
to the effect that she is often seen in the company of men. These recitals
by themselves cannot be made sufficient basis for accepting the veracity
A : Dodong Estebe, Adriano Seguis. of the allegation. Greater amount of quantitative and qualitative proof is
needed.
Q : Including Estebe and Seguis, how many persons were there in the
house, all in all? Moreover, it is unlikely that even a prostitute would agree to have sex
continuously with five to seven men for one night for a fee of P1,000.00.
A : Seven persons. And it is even more unlikely that she would go to the extent of filing a case
against them, two of whom are acquaintances, have her parts physically
Q : What did Seguis and Estebe do to you? examined, and testify in court how she was ravaged by them just to get
even for their failure to pay. Obviously, the reason why Juliet went to court
and opted to suffer the ordeal of being interrogated on her harrowing
A : Seguis and Estebe held my hands and told me to keep quite or they experience is to obtain justice.
would kill me.
III
xxx
Appellants next call our attention on the so-called badges or telltale signs
Q : Considering that it was nighttime, how were you able to recognize of a perfected contract for sexual services between Juliet and the accused.
them when they were able to drag you outside? The appellants would like to impress upon this Court that an agreement
would lend credence to their theory that she allowed herself to be used
A : Because there was a light. that night by five men who in turn reneged on their word of paying her. As
a consequence of which, she was left with no choice but to file this action
and include the appellants as well for refusing her request to be her
Q : Light from what? witnesses. In the alternative, the agreement should demonstrate that if
there was any sexual activity participated in by the woman and the
A : From electric bulb. appellants, it was at least consensual.

Q : And where was the electric bulb located or placed?
A : Outside.
Q : Are you referring to the post?
A : No, sir, it was came from our kitchen.
Q : Kitchen of your house?
A : Yes, sir."17
Moreover, the defense of alibi is an issue of fact that hinges on credibility,
the relative weight of which the trial court assigns to the testimony of the
witnesses. Such assessment, unless patently and clearly inconsistent, must
be accepted, for verily a careful evaluation of the record does not reveal
that the trial court's rejection of the defense of alibi is inconsistent with
the evidence on record.18
Lastly, it puzzles this court why the appellants, despite their plea of alibi,
never testified as to their whereabouts the night of August 18, 1995.
Neither did they present any witness who can plausibly confirm that they
were indeed in another place at that period. For the defense of alibi to be
appreciated, it is not enough to prove that the accused was somewhere
else when the offense was committed. It must likewise be shown that he
was so far away that it was not possible for him to be physically present
at the place of the crime or its immediate vicinity at the time of its
commission. The rule is settled that for the defense of alibi to prosper, the
requirement of time and place must be strictly met. 19
Page 32 of 71
First. They argue that if it were true that Juliet was raped no less than
eight times and by seven different men, she should have sustained more
injuries than mere superficial linear abrasion on the labia majora. This
should manifest that every intercourse was done, not with force and
intimidation, but with care and finesse. Suffice it to say that the absence of
external signs of physical injuries does not negate rape. 21 This is especially
true if we take into consideration that two men held Juliet's hands while
she was being raped in succession. Be that as it may, whatever wounds she
might have suffered is consistent with the hypothesis that she was raped.
As opined by Dr. Tremedal, an acknowledged expert witness, her scars, by
their very nature, must have been caused by a blunt object hitting the
vagina with force, such as an erect male penis during sexual intercourse.
Second. Appellants ask how come Seguis and Estebe preferred not to rape
Lilibeth Balantucas herself who was already at their complete control
during the time that complainant was allegedly being gang-raped by the
other five accused inside the room? Why did they wait for the five to finish
and leave behind in the process a "fresh, sweeter, and younger"22 Lilibeth?
They claim that this is unnatural for people driven by lust and bestial
desire, unless there was a prior arrangement made by them with the
victim. We are not persuaded. Lust is not a respecter of time, place and
circumstances, nor of persons and relationships, 23 and neither is it a
conformist to reason and good taste, nor common sense even. When a man
is overcome by lustful passions, certainly it would be too much to expect
that he will still concern himself with the age, scent or appearance of his
prospect.
Third. Appellants contend that Juliet's act of telling Adriano Seguis, before
she was raped by the latter, that she could not take it anymore is indicative
of the existence of a prior agreement with the seven accused for a fee of
P1,000. Again, the argument lacks merit. When Juliet told Seguis that she
could not take it, she was not asking for a "recess or timeout" 24 as they
insist, but was actually pleading that he no longer rape her as she has
suffered enough in the hands of the other accused.
Fourth. They assert that the subsequent act of Seguis and Estebe in
socializing with the victim and the Balantucas siblings negates any idea of
a misdeed. A reality check, however, would show that the accused stayed
for a while after raping Juliet not to socialize with them, as in fact the two
warned them not to tell anybody of what happened or they would be
killed. Although it is correct that Seguis later showed some signs of
remorse towards the victim, his acts were belated and could no longer
erase his crime. The ambiguous attitude of Seguis is understandable.
While succumbing to his uncontrollable lust, he remained quite
sympathetic to the plight of Juliet, who was an old acquaintance.
Nevertheless, the apparent regret shown by Seguis after the act of rape
could not undo what he had done. It was too late for recriminations.
IV
On another point, appellants keep harping on the one hundred eighty-
degree turn around made by Michael on the stand. They say that if the
alleged sexual congresses were true, and witnessed by Michael, it is highly
unthinkable that, despite the risk of facing criminal prosecution for false
testimony and perjury, he would still recant his previous testimony in
court in favor of the two. They stress that Juliet and Michael are more than
good friends; and, the latter by force of circumstance should not hesitate
to defend the complainant's position.
The Court fails to be impressed with the recantation of Michael Balantucas
for several reasons. A recantation does not necessarily cancel an earlier
declaration.25 Like any other testimony, it is subject to the test of
credibility based on the relevant circumstances and especially the
demeanor of the witness on the stand. Moreover, it should be received
with caution as otherwise it could "make solemn trials a mockery and
place the investigation of truth at the mercy of unscrupulous witnesses." 26
In any event, the eyewitness accounts of Juliet herself and Lilibeth are
more than sufficient to prove beyond doubt the participation of the
appellants in the commission of the assault. Even if the trial court had not
given credence to the first testimony of Michael, there still is enough
indication to ascertain their culpability. His declaration is merely
cumulative, or additional evidence of the same kind tending to establish
the same point or factual issue.1âwphi1.nêt
V The prosecution's version is stated in Appellee's Brief as follows:
Lastly, appellants put private complainant to task for alleged marked
contradictions and pure improbabilities surrounding her story. For
instance, they assert that it would be highly doubtful for Juliet not to notice
who took away her gold ring and gold bracelet, if in the first place there
were any. So too are they puzzled with how consistent she is in her
perception of how long each accused raped her. To them this is a sure sign
that her performance on the stand is rehearsed.
The submission deserves scant attention. Verily, one cannot expect a
victim of such nerve-racking experience to become aware of every minute
detail of the event, or question her keenness to observe one aspect of it
but not another. It is understandable for the poor victim not to remember
who particularly among the seven took away her valuables. At that point,
her ring and bracelet were not that important to her. Regarding the time,
it could well be the only thing that concerned her mind. In any event, these
contradictions or improbabilities, as appellants would put it, cannot erode
the credibility of Juliet's testimony.
IN VIEW WHEREOF, the Decision of the Regional Trial Court of Surigao
City in Criminal Case No. 4581 is AFFIRMED in toto. Costs against
appellants.
SO ORDERED.
Page 33 of 71
G.R. No. 130508 April 5, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARMANDO REGALA y ABRIOL, accused-appellant.
GONZAGA-REYES, J.:
Armando Regala appeals from the judgment in Criminal Case No. 7929
rendered by the Regional Trial Court of Masbate, Masbate, Branch 46, 5th
Judicial Region, convicting him of the crime of Robbery with Rape.
The information against accused-appellant on November 27, 1995, filed
by 2nd Assistant Provincial Prosecutor Jesus C. Castillo, reads as follows:
That on or about September 11, 1995, in the evening thereof, at Barangay
Bangon, Municipality of Aroroy, Province of Masbate, Philippines, within
the jurisdiction of this Court, the said accused confederating together and
helping one another, with intent to gain, violence and intimidation upon
persons, did then and there wilfully, unlawfully and feloniously enter the
kitchen of the house of Consuelo Arevalo and when inside, hogtied said
Consuelo Arevalo and granddaughter Nerissa Regala (sic), take, steal, rob
and carry away cash amount of P3,000.00 and two (2) gold rings worth
P6,000.00, to the damage and prejudice of owner Consuelo Arevalo in the
total amount of P9,000.00, Philippine Currency; and in pursuance of the
commission of the crime of robbery against the will and consent of the
granddaughter Nerissa Regala (sic) wilfully, unlawfully and feloniously
accused Armando Regala y Abriol has for two times sexually abused
and/or intercoursed with her, while hogtied on the bed and in the kitchen.
CONTRARY TO LAW. 1
Accused-appellant was apprehended by the police four days after the
incident. He was identified at a police line-up by Nerissa and her
grandmother.
The prosecution presented three witnesses: Dra. Conchita Ulanday,
Municipal Health Officer of Aroroy, Masbate, who personally examined the
rape victim; Nerissa Tagala the rape-victim, 17 years old, a third year high
school student; and her grandmother, Consuelo Arevalo, who was her
companion when the robbery with rape transpired at Consuelo's house.
On September 11, 1995, at about 9:00 o'clock in the evening at Barangay
Bangon, Aroroy, Masbate, then 16-year old victim Nerissa Tagala and her
grandmother (Consuelo Arevalo) were sleeping, when appellant Armando
Regala and his two other companions entered the former's house. (pp. 6-
7, TSN, August 26, 1996).
Appellant and his companions entered the house through the kitchen by
removing the pieces of wood under the stove. Appellant went to the room
of Nerissa and her grandmother and poked an 8-inch gun on them, one
after the other. (p. 8, TSN, August 26, 1996)
Nerissa and her grandmother were hogtied by appellant and his
companions. Thereafter, Nerissa was raped by appellant Armando Regala
in bed while her grandmother was on the floor. After the rape, appellant
and his two companions counted the money they took from the
"aparador." (pp. 9-10, TSN, August 26, 1996)
Appellant and his companions then ran away with P3,000 in cash, 2 pieces
of ring valued at P6,000 and two wrist watches worth P5,000. (pp. 11-13,
TSN, August 26, 1996)
The following day, September 12, 1995, Nerissa went to the Rural Health
Clinic of Aroroy, Masbate for medical examination. In the Medical Report
presented by Municipal Health Officer Dr. Conchita S. Ulanday, it was
shown that Nerissa sustained laceration of the hymen at 4:00 o'clock and
7:00 o'clock positions (fresh wounds), indicating a possible sexual assault
upon the victim. (p. 16, TSN, August 26, 1996) 2
The defense presented accused-appellant who testified that on September
11, 1995, he was staying in the house of Antonio Ramilo at barangay
Syndicate, Aroroy, Masbate. Ramilo was the manager in the gold panning
business where accused-appellant was employed. Antonio Ramilo
testified and corroborated his defense and stated that accused-appellant
was in his house, which is about 5 kilometers away from Barangay
Bangon.
The trial court held that the defense of alibi cannot overcome the positive
identification of the accused. The dispositive portion of the judgment
reads:
WHEREFORE, in view of all the foregoing, the Court finds accused
Armando Regala y Abriol guilty beyond reasonable doubt of the crime of
Robbery with Rape, as penalized under Par. 2 of Art. 294 of the Revised
Penal Code and hereby sentences him to suffer imprisonment of reclusion
perpetua; to indemnify the victim Consuelo Arevalo the sum of P9,000.00,
the cash and value of the looted articles; to indemnify the victim Nerissa
Tagala the sum of P50,000.00 as moral damages, and the further sum of
P25,000.00 as exemplary damages. No subsidiary imprisonment in case of
insolvency, and to pay the cost. 3
Armando has appealed to this Court pleading that:
(1) THE TRIAL COURT GRAVELY ERRED IN FINDING THAT SUFFICIENT
EVIDENCE EXIST TO ESTABLISH CLEARLY THE IDENTITY OF THE
ACCUSED-APPELLANT AS PERPETRATOR OF THE CRIME CHARGED.
(2) THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED. 4
which alleged errors were discussed jointly.
In essence, accused-appellant questions the sufficiency of the
prosecution's evidence in identifying him as one of the perpetrators of the
crime charged. He claims that the complaining witness could not have
positively identified him as there was no electricity nor any light in the
place of the incident which took place at 9:00 o'clock in the evening.
Consuelo Arevalo was able to identify accused-appellant only after he was
pinpointed by Nerissa, and made contradictory statements in court when
she stated that accused-appellant removed his mask after she was hogtied,
and later stated that accused-appellant removed his mask before she was
hogtied. The medico-legal officer, Dr. Ulanday, herself testified that the
complaining witness either voluntarily submitted to a sexual act or was
forced into one.
The appellee insists that appellant's lame defense of alibi cannot stand
against the positive identification made by the victim, and avers that the
victim, a 16 year old barrio lass at the time the rape was committed, was
motivated by a sincere desire to seek and obtain justice. The Solicitor
General also recommends an additional award of compensatory damages
of P50,000.00 in favor of Nerissa Tagala.
We affirm the judgment of conviction.
There was sufficient evidence to establish the identity of accused-
appellant as the perpetrator of the crime.
Page 34 of 71
Nerissa positively recounted the incident on the witness stand. She was
sleeping with her grandmother in the latter's house when the accused-
appellant Regala, together with the unidentified companions entered the
house. Regala pointed a gun, about 8 inches long, at her grandmother, and
then at her, and hogtied both of them. Regala took of her panty and her
shorts, and removed his own "porontong" pants, and made sexual
intercourse ("itot") with her while she was hogtied in bed. Her
grandmother was at the floor. She saw the aparador of her grandmother
being opened. She could not shout because the gun was pointed at her, and
she was afraid. Two companions of the accused-appellant entered the
room as she was being raped. Two rings valued at about P6,000.00 and 2
wrist watches (one "Seiko" and the other "Citizen") and money was taken
by the accused-appellant and his companions. After raping her in bed,
Nerissa saw accused-appellant counting the money taken from the
aparador. Thereafter, she was brought to the kitchen, still hogtied, and
rape again, 5 On cross-examination, Nerissa stated that although there was
no electricity, and the light in the house was already off, she was able to
see the face of Regala because at the time Regala was counting the money,
one of his companions was holding the flashlight "beamed to the money"
and there was "some reflection" on the face of Regala. 6 She remembered
the face of Regala because of an earring on his left ear 7 which he was
wearing when presented at the police line-up. 8
Consuelo Arevalo testified and corroborated the testimony of her
granddaughter. Nerissa Regala entered the house with two companions,
hogtied her and Nerissa, and were asking for money. After having sexual
intercourse with Nerissa, Regala took P3,000.00 in paper bills and coins
from her aparador, and got a stainless Seiko wristwatch and two gold rings
valued at P6,000.00. She was able to recognize Regala because of his
earring on his left ear, and because he was pinpointed by Nerissa at the
police station. She was not able to shout at the time because her mouth
was gagged with a piece of cloth by Regala. 9 On cross-examination,
Consuelo Arevalo declared that she was able to see Regala because he used
her flashlight, and he took off the mask he was wearing; she recognized
Regala because of his earring and his flat top hair cut. 10
The Court gives its approbation to the finding of the trial court that the
evidence was sufficient to clearly establish the identity of Armando Regala
as the person who, with two companions, committed the crime of robbery
accompanied by rape on the night of September 11, 1995. Nerissa Tagala
positively identified Armando Regala because at the time he was counting
the money on her bed, the other companion of the accused beamed the
flashlight towards the money and there was a reflection on the face of
Regala. Although the three intruders were wearing masks when they
entered the house, they removed their masks later. 11
Our cases have held that wicklamps, flashlights, even moonlight and
starlight may, in proper situations, be sufficient illumination, making the
attack on the credibility of witnesses solely on this ground
unmeritorious. 12
We are not persuaded by the contention of accused-appellant that the
contradictory replies of Consuelo Arevalo when asked whether Regala
removed his mask "before" 13 or "after" 14 she and Nerissa were hogtied
exposed the fact that she was not able to identify the accused-appellant.
The contradiction referred to a minor detail and cannot detract from the
fact that both Nerissa and Consuelo positively identified Regala as there
was a flashlight used to focus at the money while it was being counted and
there was a reflection on the face of Regala. Both Nerissa and Consuelo
remembered the earring on his left ear, which he was still wearing at the
time of the police line-up inside the police station.
Dr. Conchita Ulanday's testimony does not support the contention of
accused-appellant that Nerissa voluntarily submitted to the sexual
advances of Regala. The admission of Dr. Ulanday that her findings point
to the fact that Nerissa "either voluntarily or was forced into sexual act"
does not prove that Nerissa voluntarily submitted to the sexual act. Dr.
Ulanday testified that there was suggested evidence of penetration as
shown by the two lacerations at 4 o'clock and at 7 o'clock which were fresh
wounds. That the act was involuntary was clearly established by the facts
that Nerissa was hogtied when she was sexually attacked. As correctly
pointed out by appellee, Nerissa was a 16-year old barrio lass, not exposed
to the ways of the world and was not shown to have any ill-motive to
falsely implicate accused-appellant, who was a stranger. And as
repeatedly pronounced by this Court, it simply would be unnatural for a
young and innocent girl to concoct a story of defloration, allow an
examination of her private parts and thereafter subject herself to a public
trial or ridicule if she was not, in fact, a victim of rape and deeply motivated
by a sincere desire to have the culprit apprehended and punished. 15
The crime of robbery with rape was committed in 1995 when RA 7659
was already in force. Article 294 of the Revised Penal Code as amended
now provides, under paragraph 1 thereof:
1. The penalty of reclusion perpetua to death, when for any reason of or on
occasion of the robbery, the crime of homicide shall have been committed,
or when the robbery shall have been accompanied by rape or intentional
mutilation or arson.
The victim in the case at bar was raped twice on the occasion of the
robbery. There are cases 16 holding that the additional rapes committed on
the same occasion of robbery will not increase the penalty. In People vs.
Martinez,17accused Martinez and two (2) other unidentified persons, who
remained at large, were charged with the special complex crime of
robbery with rape where all three raped the victim. The Court imposed
the penalty of death after considering two (2) aggravating circumstances,
namely, nocturnidad and use of a deadly weapon. However, the Court did
not consider the two (2) other rapes as aggravating holding that "(T)he
special complex crime of robbery with rape has, therefore, been
committed by the felonious acts of appellant and his cohorts, with all acts
or rape on that occasion being integrated in one composite crime."
There are likewise cases 18 which held that the multiplicity of rapes
committed could be appreciated as an aggravating circumstance. In People
vs. Candelario 19 where three (3) of the four (4) armed men who robbed
the victim "alternately raped her twice for each of them", this Court,
citing People vs. Obtinalia, 20 ruled that "(T)he characterization of the
offense as robbery with rape, however, is not changed simply because
there were several rapes committed. The multiplicity of rapes should
instead be taken into account raising the penalty to death."
It should be noted that there is no law providing that the additional rape/s
or homicide/s should be considered as aggravating circumstance. The
enumeration of aggravating circumstances under Article 14 of the Revised
Penal Code is exclusive as opposed to the enumeration in Article 13 of the
same code regarding mitigating circumstances where there is a specific
paragraph (paragraph 10) providing for analogous circumstances.
It is true that the additional rapes (or killings in the case of multiple
homicide on the occasion of the robbery) would result in an "anomalous
situation" where from the standpoint of the gravity of the offense, robbery
with one rape would be on the same level as robbery with multiple
rapes. 21 However, the remedy lies with the legislature. A penal law is
liberally construed in favor of the offender 22 and no person should be
brought within its terms if he is not clearly made so by the statute. 23
In view of the foregoing, the additional rape committed by herein accused-
appellant should not be considered as aggravating. The penalty
of reclusion perpetua imposed by the trial court is proper.
As regards the civil indemnity, we find well-taken the recommendation of
the Solicitor General that compensatory damages should be awarded in
the amount of P50,000.00. Nerissa Tagala is entitled to an award of civil
indemnity ex delicto of P50,000.00, which is given in favor of the offended
party in rape. 24 Also a conviction for rape carries with it the award of
moral damages to the victim since it is recognized that the victim's injury
is concomitant with and necessarily results from the ordinary crime of
rape to warrant per se an award of P50,000.00 as moral damages. 25
Page 35 of 71
WHEREFORE, the judgment convicting Armando Regala y Abriol guilty
beyond reasonable doubt of the crime of Robbery with Rape, is hereby
AFFIRMED with the MODIFICATION that Nerissa Tagala is entitled to an
additional award of P50,000.00 as civil indemnity.
SO ORDERED.1âwphi1.nêt
THEFT
G.R. No. 155076 February 27, 2006
LUIS MARCOS P. LAUREL, Petitioner,
vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court,
Makati City, Branch 150, PEOPLE OF THE PHILIPPINES& PHILIPPINE
LONG DISTANCE TELEPHONE COMPANY, Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision 1 of the
Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued
by Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch
150, which denied the "Motion to Quash (With Motion to Defer
Arraignment)" in Criminal Case No. 99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a
legislative franchise to render local and international telecommunication
services under Republic Act No. 7082.2 Under said law, PLDT is authorized
to establish, operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting, receiving and
switching stations, for both domestic and international calls. For this
purpose, it has installed an estimated 1.7 million telephone lines
nationwide. PLDT also offers other services as authorized by Certificates
of Public Convenience and Necessity (CPCN) duly issued by the National
Telecommunications Commission (NTC), and operates and maintains an
International Gateway Facility (IGF). The PLDT network is thus principally
composed of the Public Switch Telephone Network (PSTN), telephone
handsets and/or telecommunications equipment used by its subscribers,
the wires and cables linking said telephone handsets and/or
telecommunications equipment, antenna, the IGF, and other
telecommunications equipment which provide
interconnections.3 1avvphil.net
PLDT alleges that one of the alternative calling patterns that constitute
network fraud and violate its network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of routing and
completing international long distance calls using International Private
Leased Lines (IPL), cables, antenna or air wave or frequency, which
connect directly to the local or domestic exchange facilities of the
terminating country (the country where the call is destined). The IPL is
linked to switching equipment which is connected to a PLDT telephone
line/number. In the process, the calls bypass the IGF found at the
terminating country, or in some instances, even those from the originating
country.4
One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells "Bay Super Orient Card" phone cards to people who
call their friends and relatives in the Philippines. With said card, one is
entitled to a 27-minute call to the Philippines for about ¥37.03 per minute.
After dialing the ISR access number indicated in the phone card, the ISR
operator requests the subscriber to give the PIN number also indicated in
the phone card. Once the caller’s identity (as purchaser of the phone card)
is confirmed, the ISR operator will then provide a Philippine local line to
the requesting caller via the IPL. According to PLDT, calls made through
the IPL never pass the toll center of IGF operators in the Philippines. Using
the local line, the Baynet card user is able to place a call to any point in the
Philippines, provided the local line is National Direct Dial (NDD) capable. 5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to
course its incoming international long distance calls from Japan. The IPL
is linked to switching equipment, which is then connected to PLDT
telephone lines/numbers and equipment, with Baynet as subscriber.
Through the use of the telephone lines and other auxiliary equipment,
Baynet is able to connect an international long distance call from Japan to
any part of the Philippines, and make it appear as a call originating from
Metro Manila. Consequently, the operator of an ISR is able to evade
payment of access, termination or bypass charges and accounting rates, as
well as compliance with the regulatory requirements of the NTC. Thus, the
ISR operator offers international telecommunication services at a lower
rate, to the damage and prejudice of legitimate operators like PLDT. 6
PLDT pointed out that Baynet utilized the following equipment for its ISR
activities: lines, cables, and antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines
and equipment; computers or any equipment or device capable of
accepting information applying the prescribed process of the information
and supplying the result of this process; modems or any equipment or
device that enables a data terminal equipment such as computers to
communicate with other data terminal equipment via a telephone line;
multiplexers or any equipment or device that enables two or more signals
from different sources to pass through a common cable or transmission
line; switching equipment, or equipment or device capable of connecting
telephone lines; and software, diskettes, tapes or equipment or device
used for recording and storing information. 7
PLDT also discovered that Baynet subscribed to a total of 123 PLDT
telephone lines/numbers.8 Based on the Traffic Study conducted on the
volume of calls passing through Baynet’s ISR network which bypass the
IGF toll center, PLDT incurred an estimated monthly loss of
P10,185,325.96.9 Records at the Securities and Exchange Commission
(SEC) also revealed that Baynet was not authorized to provide
international or domestic long distance telephone service in the country.
The following are its officers: Yuji Hijioka, a Japanese national (chairman
of the board of directors); Gina C. Mukaida, a Filipina (board member and
president); Luis Marcos P. Laurel, a Filipino (board member and corporate
secretary); Ricky Chan Pe, a Filipino (board member and treasurer); and
Yasushi Ueshima, also a Japanese national (board member).
Upon complaint of PLDT against Baynet for network fraud, and on the
strength of two search warrants10 issued by the RTC of Makati, Branch
147, National Bureau of Investigation (NBI) agents searched its office at
the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on November 8,
1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and
Rolando J. Villegas were arrested by NBI agents while in the act of manning
the operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as
multiplexers, modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors, cables/wires, assorted
PLDT statement of accounts, parabolic antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and
issued a Resolution11 on January 28, 2000, finding probable cause for theft
under Article 308 of the Revised Penal Code and Presidential Decree No.
40112against the respondents therein, including Laurel.
On February 8, 2000, State Prosecutor Calo filed an Information with the
RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with
theft under Article 308 of the Revised Penal Code. After conducting the
requisite preliminary investigation, the State Prosecutor filed an
Amended Information impleading Laurel (a partner in the law firm of
Ingles, Laurel, Salinas, and, until November 19, 1999, a member of the
board of directors and corporate secretary of Baynet), and the other
members of the board of directors of said corporation, namely, Yuji
Hijioka, Yasushi Ueshima, Mukaida, Lacson and Villegas, as accused for
Page 36 of 71
theft under Article 308 of the Revised Penal Code. The inculpatory portion
of the Amended Information reads:
On or about September 10-19, 1999, or prior thereto, in Makati City, and
within the jurisdiction of this Honorable Court, the accused, conspiring
and confederating together and all of them mutually helping and aiding
one another, with intent to gain and without the knowledge and consent
of the Philippine Long Distance Telephone (PLDT), did then and there
willfully, unlawfully and feloniously take, steal and use the international
long distance calls belonging to PLDT by conducting International Simple
Resale (ISR), which is a method of routing and completing international
long distance calls using lines, cables, antennae, and/or air wave
frequency which connect directly to the local or domestic exchange
facilities of the country where the call is destined, effectively stealing this
business from PLDT while using its facilities in the estimated amount of
P20,370,651.92 to the damage and prejudice of PLDT, in the said amount.
CONTRARY TO LAW.13
Accused Laurel filed a "Motion to Quash (with Motion to Defer
Arraignment)" on the ground that the factual allegations in the Amended
Information do not constitute the felony of theft under Article 308 of the
Revised Penal Code. He averred that the Revised Penal Code, or any other
special penal law for that matter, does not prohibit ISR operations. He
claimed that telephone calls with the use of PLDT telephone lines, whether
domestic or international, belong to the persons making the call, not to
PLDT. He argued that the caller merely uses the facilities of PLDT, and
what the latter owns are the telecommunication infrastructures or
facilities through which the call is made. He also asserted that PLDT is
compensated for the caller’s use of its facilities by way of rental; for an
outgoing overseas call, PLDT charges the caller per minute, based on the
duration of the call. Thus, no personal property was stolen from PLDT.
According to Laurel, the P20,370,651.92 stated in the Information, if
anything, represents the rental for the use of PLDT facilities, and not the
value of anything owned by it. Finally, he averred that the allegations in
the Amended Information are already subsumed under the Information
for violation of Presidential Decree (P.D.) No. 401 filed and pending in the
Metropolitan Trial Court of Makati City, docketed as Criminal Case No.
276766.
The prosecution, through private complainant PLDT, opposed the
motion,14 contending that the movant unlawfully took personal property
belonging to it, as follows: 1) intangible telephone services that are being
offered by PLDT and other telecommunication companies, i.e., the
connection and interconnection to their telephone lines/facilities; 2) the
use of those facilities over a period of time; and 3) the revenues derived in
connection with the rendition of such services and the use of such
facilities.15
The prosecution asserted that the use of PLDT’s intangible telephone
services/facilities allows electronic voice signals to pass through the
same, and ultimately to the called party’s number. It averred that such
service/facility is akin to electricity which, although an intangible
property, may, nevertheless, be appropriated and be the subject of theft.
Such service over a period of time for a consideration is the business that
PLDT provides to its customers, which enables the latter to send various
messages to installed recipients. The service rendered by PLDT is akin to
merchandise which has specific value, and therefore, capable of
appropriation by another, as in this case, through the ISR operations
conducted by the movant and his co-accused.
The prosecution further alleged that "international business calls and
revenues constitute personal property envisaged in Article 308 of the
Revised Penal Code." Moreover, the intangible telephone
services/facilities belong to PLDT and not to the movant and the other
accused, because they have no telephone services and facilities of their
own duly authorized by the NTC; thus, the taking by the movant and his
co-accused of PLDT services was with intent to gain and without the
latter’s consent.
The prosecution pointed out that the accused, as well as the movant, were
paid in exchange for their illegal appropriation and use of PLDT’s
telephone services and facilities; on the other hand, the accused did not
pay a single centavo for their illegal ISR operations. Thus, the acts of the
accused were akin to the use of a "jumper" by a consumer to deflect the
current from the house electric meter, thereby enabling one to steal
electricity. The prosecution emphasized that its position is fortified by the
Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S.
No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No.
2000-370) which were issued on August 14, 2000 finding probable cause
for theft against the respondents therein.
On September 14, 2001, the RTC issued an Order16 denying the Motion to
Quash the Amended Information. The court declared that, although there
is no law that expressly prohibits the use of ISR, the facts alleged in the
Amended Information "will show how the alleged crime was committed
by conducting ISR," to the damage and prejudice of PLDT.
Laurel filed a Motion for Reconsideration17 of the Order, alleging that
international long distance calls are not personal property, and are not
capable of appropriation. He maintained that business or revenue is not
considered personal property, and that the prosecution failed to adduce
proof of its existence and the subsequent loss of personal property
belonging to another. Citing the ruling of the Court in United States v. De
Guzman,18 Laurel averred that the case is not one with telephone calls
which originate with a particular caller and terminates with the called
party. He insisted that telephone calls are considered privileged
communications under the Constitution and cannot be considered as "the
property of PLDT." He further argued that there is no kinship between
telephone calls and electricity or gas, as the latter are forms of energy
which are generated and consumable, and may be considered as personal
property because of such characteristic. On the other hand, the movant
argued, the telephone business is not a form of energy but is an activity.
In its Order19 dated December 11, 2001, the RTC denied the movant’s
Motion for Reconsideration. This time, it ruled that what was stolen from
PLDT was its "business" because, as alleged in the Amended Information,
the international long distance calls made through the facilities of PLDT
formed part of its business. The RTC noted that the movant was charged
with stealing the business of PLDT. To support its ruling, it cited
Strochecker v. Ramirez,20where the Court ruled that interest in business
is personal property capable of appropriation. It further declared that,
through their ISR operations, the movant and his co-accused deprived
PLDT of fees for international long distance calls, and that the ISR used by
the movant and his co-accused was no different from the "jumper" used
for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing the Order
of the RTC. He alleged that the respondent judge gravely abused his
discretion in denying his Motion to Quash the Amended Information. 21 As
gleaned from the material averments of the amended information, he was
charged with stealing the international long distance calls belonging to
PLDT, not its business. Moreover, the RTC failed to distinguish between
the business of PLDT (providing services for international long distance
calls) and the revenues derived therefrom. He opined that a "business" or
its revenues cannot be considered as personal property under Article 308
of the Revised Penal Code, since a "business" is "(1) a commercial or
mercantile activity customarily engaged in as a means of livelihood and
typically involving some independence of judgment and power of
decision; (2) a commercial or industrial enterprise; and (3) refers to
transactions, dealings or intercourse of any nature." On the other hand,
the term "revenue" is defined as "the income that comes back from an
investment (as in real or personal property); the annual or periodical
rents, profits, interests, or issues of any species of real or personal
property."22
Laurel further posited that an electric company’s business is the
production and distribution of electricity; a gas company’s business is the
production and/or distribution of gas (as fuel); while a water company’s
business is the production and distribution of potable water. He argued
Page 37 of 71
that the "business" in all these cases is the commercial activity, while the
goods and merchandise are the products of such activity. Thus, in
prosecutions for theft of certain forms of energy, it is the electricity or gas
which is alleged to be stolen and not the "business" of providing electricity
or gas. However, since a telephone company does not produce any energy,
goods or merchandise and merely renders a service or, in the words of
PLDT, "the connection and interconnection to their telephone
lines/facilities," such service cannot be the subject of theft as defined in
Article 308 of the Revised Penal Code. 23
He further declared that to categorize "business" as personal property
under Article 308 of the Revised Penal Code would lead to absurd
consequences; in prosecutions for theft of gas, electricity or water, it
would then be permissible to allege in the Information that it is the gas
business, the electric business or the water business which has been
stolen, and no longer the merchandise produced by such enterprise. 24
Laurel further cited the Resolution of the Secretary of Justice in Piltel v.
Mendoza,25 where it was ruled that the Revised Penal Code, legislated as
it was before present technological advances were even conceived, is not
adequate to address the novel means of "stealing" airwaves or airtime. In
said resolution, it was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of
1997" to deter cloning of cellular phones and other forms of
communications fraud. The said bill "aims to protect in number (ESN) (sic)
or Capcode, mobile identification number (MIN), electronic-international
mobile equipment identity (EMEI/IMEI), or subscriber identity module"
and "any attempt to duplicate the data on another cellular phone without
the consent of a public telecommunications entity would be punishable by
law."26 Thus, Laurel concluded, "there is no crime if there is no law
punishing the crime."
On August 30, 2002, the CA rendered judgment dismissing the
petition.27 The appellate court ruled that a petition for certiorari under
Rule 65 of the Rules of Court was not the proper remedy of the petitioner.
On the merits of the petition, it held that while business is generally an
activity
which is abstract and intangible in form, it is nevertheless considered
"property" under Article 308 of the Revised Penal Code. The CA opined
that PLDT’s business of providing international calls is personal property
which may be the object of theft, and cited United States v. Carlos 28 to
support such conclusion. The tribunal also cited Strochecker v.
Ramirez,29 where this Court ruled that one-half interest in a day’s business
is personal property under Section 2 of Act No. 3952, otherwise known as
the Bulk Sales Law. The appellate court held that the operations of the ISR
are not subsumed in the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that
-
THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL
PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE
"INTERNATIONAL LONG DISTANCE CALLS" BUT THE "BUSINESS OF
PLDT."
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM
"BUSINESS" IS PERSONAL PROPERTY WITHIN THE MEANING OF ART.
308 OF THE REVISED PENAL CODE.30
Petitioner avers that the petition for a writ of certiorari may be filed to
nullify an interlocutory order of the trial court which was issued with
grave abuse of discretion amounting to excess or lack of jurisdiction. In
support of his petition before the Court, he reiterates the arguments in his
pleadings filed before the CA. He further claims that while the right to
carry on a business or an interest or participation in business is
considered property under the New Civil Code, the term "business,"
however, is not. He asserts that the Philippine Legislature, which
approved the Revised Penal Code way back in January 1, 1932, could not
have contemplated to include international long distance calls and
"business" as personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG)
maintains that the amended information clearly states all the essential
elements of the crime of theft. Petitioner’s interpretation as to whether an
"international long distance call" is personal property under the law is
inconsequential, as a reading of the amended information readily reveals
that specific acts and circumstances were alleged charging Baynet,
through its officers, including petitioner, of feloniously taking, stealing and
illegally using international long distance calls belonging to respondent
PLDT by conducting ISR operations, thus, "routing and completing
international long distance calls using lines, cables, antenna and/or
airwave frequency which connect directly to the local or domestic
exchange facilities of the country where the call is destined." The OSG
maintains that the international long distance calls alleged in the amended
information should be construed to mean "business" of PLDT, which,
while abstract and intangible in form, is personal property susceptible of
appropriation.31 The OSG avers that what was stolen by petitioner and his
co-accused is the business of PLDT providing international long distance
calls which, though intangible, is personal property of the PLDT. 32
For its part, respondent PLDT asserts that personal property under Article
308 of the Revised Penal Code comprehends intangible property such as
electricity and gas which are valuable articles for merchandise, brought
and sold like other personal property, and are capable of appropriation. It
insists that the business of international calls and revenues constitute
personal property because the same are valuable articles of merchandise.
The respondent reiterates that international calls involve (a) the
intangible telephone services that are being offered by it, that is, the
connection and interconnection to the telephone network, lines or
facilities; (b) the use of its telephone network, lines or facilities over a
period of time; and (c) the income derived in connection therewith. 33
PLDT further posits that business revenues or the income derived in
connection with the rendition of such services and the use of its telephone
network, lines or facilities are personal properties under Article 308 of the
Revised Penal Code; so is the use of said telephone services/telephone
network, lines or facilities which allow electronic voice signals to pass
through the same and ultimately to the called party’s number. It is akin to
electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDT’s
telephone network, lines, or facilities over a period of time for
consideration is the business that it provides to its customers, which
enables the latter to send various messages to intended recipients. Such
use over a period of time is akin to merchandise which has value and,
therefore, can be appropriated by another. According to respondent PLDT,
this is what actually happened when petitioner Laurel and the other
accused below conducted illegal ISR operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for
certiorari is the proper remedy of the petitioner in the Court of Appeals;
(b) whether or not international telephone calls using Bay Super Orient
Cards through the telecommunication services provided by PLDT for such
calls, or, in short, PLDT’s business of providing said telecommunication
services, are proper subjects of theft under Article 308 of the Revised
Penal Code; and (c) whether or not the trial court committed grave abuse
of discretion amounting to excess or lack of jurisdiction in denying the
motion of the petitioner to quash the amended information.
On the issue of whether or not the petition for certiorari instituted by the
petitioner in the CA is proper, the general rule is that a petition for
certiorari under Rule 65 of the Rules of Court, as amended, to nullify an
order denying a motion to quash the Information is inappropriate because
the aggrieved party has a remedy of appeal in the ordinary course of law.
Appeal and certiorari are mutually exclusive of each other. The remedy of
the aggrieved party is to continue with the case in due course and, when
Page 38 of 71
an unfavorable judgment is rendered, assail the order and the decision on
appeal. However, if the trial court issues the order denying the motion to
quash the Amended Information with grave abuse of discretion
amounting to excess or lack of jurisdiction, or if such order is patently
erroneous, or null and void for being contrary to the Constitution, and the
remedy of appeal would not afford adequate and expeditious relief, the
accused may resort to the extraordinary remedy of certiorari. 35 A special
civil action for certiorari is also available where there are special
circumstances clearly demonstrating the inadequacy of an appeal. As this
Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria: 36
Nonetheless, the settled rule is that a writ of certiorari may be granted in
cases where, despite availability of appeal after trial, there is at least a
prima facie showing on the face of the petition and its annexes that: (a) the
trial court issued the order with grave abuse of discretion amounting to
lack of or in excess of jurisdiction; (b) appeal would not prove to be a
speedy and adequate remedy; (c) where the order is a patent nullity; (d)
the decision in the present case will arrest future litigations; and (e) for
certain considerations such as public welfare and public policy. 37
In his petition for certiorari in the CA, petitioner averred that the trial
court committed grave abuse of its discretion amounting to excess or lack
of jurisdiction when it denied his motion to quash the Amended
Information despite his claim that the material allegations in the Amended
Information do not charge theft under Article 308 of the Revised Penal
Code, or any offense for that matter. By so doing, the trial court deprived
him of his constitutional right to be informed of the nature of the charge
against him. He further averred that the order of the trial court is contrary
to the constitution and is, thus, null and void. He insists that he should not
be compelled to undergo the rigors and tribulations of a protracted trial
and incur expenses to defend himself against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act or
omission constituting an offense38 and must allege facts establishing
conduct that a penal statute makes criminal;39 and describes the property
which is the subject of theft to advise the accused with reasonable
certainty of the accusation he is called upon to meet at the trial and to
enable him to rely on the judgment thereunder of a subsequent
prosecution for the same offense.40 It must show, on its face, that if the
alleged facts are true, an offense has been committed. The rule is rooted
on the constitutional right of the accused to be informed of the nature of
the crime or cause of the accusation against him. He cannot be convicted
of an offense even if proven unless it is alleged or necessarily included in
the Information filed against him.
As a general prerequisite, a motion to quash on the ground that the
Information does not constitute the offense charged, or any offense for
that matter, should be resolved on the basis of said allegations whose
truth and veracity are hypothetically committed;41 and on additional facts
admitted or not denied by the prosecution. 42 If the facts alleged in the
Information do not constitute an offense, the complaint or information
should be quashed by the court.43
We have reviewed the Amended Information and find that, as mentioned
by the petitioner, it does not contain material allegations charging the
petitioner of theft of personal property under Article 308 of the Revised
Penal Code. It, thus, behooved the trial court to quash the Amended
Information. The Order of the trial court denying the motion of the
petitioner to quash the Amended Information is a patent nullity.
On the second issue, we find and so hold that the international telephone
calls placed by Bay Super Orient Card holders, the telecommunication
services provided by PLDT and its business of providing said services are
not personal properties under Article 308 of the Revised Penal Code. The
construction by the respondents of Article 308 of the said Code to include,
within its coverage, the aforesaid international telephone calls,
telecommunication services and business is contrary to the letter and
intent of the law.
The rule is that, penal laws are to be construed strictly. Such rule is
founded on the tenderness of the law for the rights of individuals and on
the plain principle that the power of punishment is vested in Congress, not
in the judicial department. It is Congress, not the Court, which is to define
a crime, and ordain its punishment.44 Due respect for the prerogative of
Congress in defining crimes/felonies constrains the Court to refrain from
a broad interpretation of penal laws where a "narrow interpretation" is
appropriate. The Court must take heed to language, legislative history and
purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids.45 However, when the congressional purpose is
unclear, the court must apply the rule of lenity, that is, ambiguity
concerning the ambit of criminal statutes should be resolved in favor of
lenity.46
Penal statutes may not be enlarged by implication or intent beyond the
fair meaning of the language used; and may not be held to include offenses
other than those which are clearly described, notwithstanding that the
Court may think that Congress should have made them more
comprehensive.47 Words and phrases in a statute are to be construed
according to their common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be dangerous, indeed, to
carry the principle that a case which is within the reason or
mischief of a statute is within its provision, so far as to punish a crime not
enumerated in the statute because it is of equal atrocity, or of kindred
character with those which are enumerated.48 When interpreting a
criminal statute that does not explicitly reach the conduct in question, the
Court should not base an expansive reading on inferences from subjective
and variable understanding.49
Article 308 of the Revised Penal Code defines theft as follows:
Art. 308. Who are liable for theft.– Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons
nor force upon things, shall take personal property of another without the
latter’s consent.
The provision was taken from Article 530 of the Spanish Penal Code which
reads:
1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.50
For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive
another of his ownership/lawful possession of personal property which
intent is apart from and concurrently with the general criminal intent
which is an essential element of a felony of dolo (dolus malus).
An information or complaint for simple theft must allege the following
elements: (a) the taking of personal property; (b) the said property
belongs to another; (c) the taking be done with intent to gain; and (d) the
taking be accomplished without the use of violence or intimidation of
person/s or force upon things.51
One is apt to conclude that "personal property" standing alone, covers
both tangible and intangible properties and are subject of theft under the
Revised Penal Code. But the words "Personal property" under the Revised
Penal Code must be considered in tandem with the word "take" in the law.
The statutory definition of "taking" and movable property indicates that,
clearly, not all personal properties may be the proper subjects of theft. The
general rule is that, only movable properties which have physical or
Page 39 of 71
material existence and susceptible of occupation by another are proper
objects of theft.52 As explained by Cuelo Callon: "Cosa juridicamente es
toda sustancia corporal, material, susceptible de ser aprehendida que
tenga un valor cualquiera."53
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they
are found are proper subjects of theft. Intangible properties such as rights
and ideas are not subject of theft because the same cannot be "taken" from
the place it is found and is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser objeto de hurto. La
sustracción de cosas inmuebles y la cosas incorporales (v. gr., los
derechos, las ideas) no puede integrar este delito, pues no es posible
asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la
expresión "cosas mueble" en el sentido de cosa que es susceptible de ser
llevada del lugar donde se encuentra, como dinero, joyas, ropas, etcétera,
asi que su concepto no coincide por completo con el formulado por el
Codigo civil (arts. 335 y 336).54
Thus, movable properties under Article 308 of the Revised Penal Code
should be distinguished from the rights or interests to which they relate.
A naked right existing merely in contemplation of law, although it may be
very valuable to the person who is entitled to exercise it, is not the subject
of theft or larceny.55 Such rights or interests are intangible and cannot be
"taken" by another. Thus, right to produce oil, good will or an interest in
business, or the right to engage in business, credit or franchise are
properties. So is the credit line represented by a credit card. However,
they are not proper subjects of theft or larceny because they are without
form or substance, the mere "breath" of the Congress. On the other hand,
goods, wares and merchandise of businessmen and credit cards issued to
them are movable properties with physical and material existence and
may be taken by another; hence, proper subjects of theft.
There is "taking" of personal property, and theft is consummated when
the offender unlawfully acquires possession of personal property even if
for a short time; or if such property is under the dominion and control of
the thief. The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property adverse to
the rights of the owner or the lawful possessor thereof. 56 It is not
necessary that the property be actually carried away out of the physical
possession of the lawful possessor or that he should have made his escape
with it.57 Neither asportation nor actual manual possession of property is
required. Constructive possession of the thief of the property is enough. 58
The essence of the element is the taking of a thing out of the possession of
the owner without his privity and consent and without animus
revertendi.59
Taking may be by the offender’s own hands, by his use of innocent persons
without any felonious intent, as well as any mechanical device, such as an
access device or card, or any agency, animate or inanimate, with intent to
gain. Intent to gain includes the unlawful taking of personal property for
the purpose of deriving utility, satisfaction, enjoyment and pleasure.60
We agree with the contention of the respondents that intangible
properties such as electrical energy and gas are proper subjects of theft.
The reason for this is that, as explained by this Court in United States v.
Carlos61 and United States v. Tambunting,62 based on decisions of the
Supreme Court of Spain and of the courts in England and the United States
of America, gas or electricity are capable of appropriation by another
other than the owner. Gas and electrical energy may be taken, carried
away and appropriated. In People v. Menagas,63 the Illinois State Supreme
Court declared that electricity, like gas, may be seen and felt. Electricity,
the same as gas, is a valuable article of merchandise, bought and sold like
other personal property and is capable of appropriation by another. It is a
valuable article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger quantity and
of being transported from place to place. Electrical energy may, likewise,
be taken and carried away. It is a valuable commodity, bought and sold
like other personal property. It may be transported from place to place.
There is nothing in the nature of gas used for illuminating purposes which
renders it incapable of being feloniously taken and carried away.
In People ex rel Brush Electric Illuminating Co. v. Wemple, 64 the Court of
Appeals of New York held that electric energy is manufactured and sold in
determinate quantities at a fixed price, precisely as are coal, kerosene oil,
and gas. It may be conveyed to the premises of the consumer, stored in
cells of different capacity known as an accumulator; or it may be sent
through a wire, just as gas or oil may be transported either in a close tank
or forced through a pipe. Having reached the premises of the consumer, it
may be used in any way he may desire, being, like illuminating gas, capable
of being transformed either into heat, light, or power, at the option of the
purchaser. In Woods v. People,65 the Supreme Court of Illinois declared
that there is nothing in the nature of gas used for illuminating purposes
which renders it incapable of being feloniously taken and carried away. It
is a valuable article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger quantity and
of being transported from place to place.
Gas and electrical energy should not be equated with business or services
provided by business entrepreneurs to the public. Business does not have
an exact definition. Business is referred as that which occupies the time,
attention and labor of men for the purpose of livelihood or profit. It
embraces everything that which a person can be employed.66 Business
may also mean employment, occupation or profession. Business is also
defined as a commercial activity for gain benefit or advantage.67 Business,
like services in business, although are properties, are not proper subjects
of theft under the Revised Penal Code because the same cannot be "taken"
or "occupied." If it were otherwise, as claimed by the respondents, there
would be no juridical difference between the taking of the business of a
person or the services provided by him for gain, vis-à-vis, the taking of
goods, wares or merchandise, or equipment comprising his business.68 If
it was its intention to include "business" as personal property under
Article 308 of the Revised Penal Code, the Philippine Legislature should
have spoken in language that is clear and definite: that business is
personal property under Article 308 of the Revised Penal Code. 69
We agree with the contention of the petitioner that, as gleaned from the
material averments of the Amended Information, he is charged of "stealing
the international long distance calls belonging to PLDT" and the use
thereof, through the ISR. Contrary to the claims of the OSG and respondent
PLDT, the petitioner is not charged of stealing P20,370,651.95 from said
respondent. Said amount of P20,370,651.95 alleged in the Amended
Information is the aggregate amount of access, transmission or
termination charges which the PLDT expected from the international long
distance calls of the callers with the use of Baynet Super Orient Cards sold
by Baynet Co. Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as the taking
of personal property without the consent of the owner thereof, the
Philippine legislature could not have contemplated the human voice
which is converted into electronic impulses or electrical current which are
transmitted to the party called through the PSTN of respondent PLDT and
the ISR of Baynet Card Ltd. within its coverage. When the Revised Penal
Code was approved, on December 8, 1930, international telephone calls
and the transmission and routing of electronic voice signals or impulses
emanating from said calls, through the PSTN, IPL and ISR, were still non-
existent. Case law is that, where a legislative history fails to evidence
congressional awareness of the scope of the statute claimed by the
respondents, a narrow interpretation of the law is more consistent with
the usual approach to the construction of the statute. Penal responsibility
cannot be extended beyond the fair scope of the statutory mandate. 70
Respondent PLDT does not acquire possession, much less, ownership of
the voices of the telephone callers or of the electronic voice signals or
current emanating from said calls. The human voice and the electronic
voice signals or current caused thereby are intangible and not susceptible
of possession, occupation or appropriation by the respondent PLDT or
Page 40 of 71
even the petitioner, for that matter. PLDT merely transmits the electronic
voice signals through its facilities and equipment. Baynet Card Ltd.,
through its operator, merely intercepts, reroutes the calls and passes them
to its toll center. Indeed, the parties called receive the telephone calls from
Japan.
In this modern age of technology, telecommunications systems have
become so tightly merged with computer systems that it is difficult to
know where one starts and the other finishes. The telephone set is highly
computerized and allows computers to communicate across long
distances.71 The instrumentality at issue in this case is not merely a
telephone but a telephone inexplicably linked to a computerized
communications system with the use of Baynet Cards sold by the Baynet
Card Ltd. The corporation uses computers, modems and software, among
others, for its ISR.72
The conduct complained of by respondent PLDT is reminiscent of
"phreaking" (a slang term for the action of making a telephone system to
do something that it normally should not allow by "making the phone
company bend over and grab its ankles"). A "phreaker" is one who engages
in the act of manipulating phones and illegally markets telephone
services.73 Unless the phone company replaces all its hardware, phreaking
would be impossible to stop. The phone companies in North America were
impelled to replace all their hardware and adopted full digital switching
system known as the Common Channel Inter Office Signaling. Phreaking
occurred only during the 1960’s and 1970’s, decades after the Revised
Penal Code took effect.
The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if he is,
the term "personal property" under Article 308 of the Revised Penal Code
cannot be interpreted beyond its seams so as to include
"telecommunication or telephone services" or computer services for that
matter. The word "service" has a variety of meanings dependent upon the
context, or the sense in which it is used; and, in some instances, it may
include a sale. For instance, the sale of food by restaurants is usually
referred to as "service," although an actual sale is involved.74 It may also
mean the duty or labor to be rendered by one person to another;
performance of labor for the benefit of another.75 In the case of PLDT, it is
to render local and international telecommunications services and such
other services as authorized by the CPCA issued by the NTC. Even at
common law, neither time nor services may be taken and occupied or
appropriated.76 A service is generally not considered property and a theft
of service would not, therefore, constitute theft since there can be no
caption or asportation.77 Neither is the unauthorized use of the equipment
and facilities of PLDT by the petitioner theft under the aforequoted
provision of the Revised Penal Code.78
If it was the intent of the Philippine Legislature, in 1930, to include
services to be the subject of theft, it should have incorporated the same in
Article 308 of the Revised Penal Code. The Legislature did not. In fact, the
Revised Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is to
be proscribed, it must be by special statute79 or an amendment of the
Revised Penal Code. Several states in the United States, such as New York,
New Jersey, California and Virginia, realized that their criminal statutes
did not contain any provisions penalizing the theft of services and passed
laws defining and penalizing theft of telephone and computer services.
The Pennsylvania Criminal Statute now penalizes theft of services, thus:
(a) Acquisition of services. --
(1) A person is guilty of theft if he intentionally obtains services for himself
or for another which he knows are available only for compensation, by
deception or threat, by altering or tampering with the public utility meter
or measuring device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or inductively,
to a distribution or transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable, wire or other
component of an electric, telephone or cable television system or to a
television receiving set connected to a cable television system, by making
or maintaining any unauthorized modification or alteration to any device
installed by a cable television system, or by false token or other trick or
artifice to avoid payment for the service.
In the State of Illinois in the United States of America, theft of labor or
services or use of property is penalized:
(a) A person commits theft when he obtains the temporary use of
property, labor or services of another which are available only for hire, by
means of threat or deception or knowing that such use is without the
consent of the person providing the property, labor or services.
In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including
professional services, have not been included within the traditional scope
of the term "property" in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft
of services, thus:
(1) A person is guilty of theft if he purposely obtains services which he
knows are available only for compensation, by deception or threat, or by
false token or other means to avoid payment for the service. "Services"
include labor, professional service, transportation, telephone or other
public service, accommodation in hotels, restaurants or elsewhere,
admission to exhibitions, use of vehicles or other movable property.
Where compensation for service is ordinarily paid immediately upon the
rendering of such service, as in the case of hotels and restaurants, refusal
to pay or absconding without payment or offer to pay gives rise to a
presumption that the service was obtained by deception as to intention to
pay; (2) A person commits theft if, having control over the disposition of
services of others, to which he is not entitled, he knowingly diverts such
services to his own benefit or to the benefit of another not entitled thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its
decision in Lund v. Commonwealth,80declaring that neither time nor
services may be taken and carried away and are not proper subjects of
larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which
reads:
Computer time or services or data processing services or information or
data stored in connection therewith is hereby defined to be property
which may be the subject of larceny under § § 18.2-95 or 18.2-96, or
embezzlement under § 18.2-111, or false pretenses under § 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of
Alabama of 1975 penalizes theft of services:
"A person commits the crime of theft of services if: (a) He intentionally
obtains services known by him to be available only for compensation by
deception, threat, false token or other means to avoid payment for the
services …"
In the Philippines, Congress has not amended the Revised Penal Code to
include theft of services or theft of business as felonies. Instead, it
approved a law, Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an
access device means any card, plate, code, account number, electronic
serial number, personal identification number and other
telecommunication services, equipment or instrumentalities-identifier or
other means of account access that can be used to obtain money, goods,
services or any other thing of value or to initiate a transfer of funds other
than a transfer originated solely by paper instrument. Among the
prohibited acts enumerated in Section 9 of the law are the acts of obtaining
money or anything of value through the use of an access device, with
Page 41 of 71
intent to defraud or intent to gain and fleeing thereafter; and of effecting
transactions with one or more access devices issued to another person or
persons to receive payment or any other thing of value. Under Section 11
of the law, conspiracy to commit access devices fraud is a crime. However,
the petitioner is not charged of violation of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to
any liability for violation of any provisions of the Revised Penal Code
inclusive of theft under Rule 308 of the Revised Penal Code and estafa
under Article 315 of the Revised Penal Code. Thus, if an individual steals a
credit card and uses the same to obtain services, he is liable of the
following: theft of the credit card under Article 308 of the Revised Penal
Code; violation of Republic Act No. 8484; and estafa under Article
315(2)(a) of the Revised Penal Code with the service provider as the
private complainant. The petitioner is not charged of estafa before the RTC
in the Amended Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000
provides:
Sec. 33. Penalties.— The following Acts shall be penalized by fine and/or
imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or
interference in a computer system/server or information and
communication system; or any access in order to corrupt, alter, steal, or
destroy using a computer or other similar information and
communication devices, without the knowledge and consent of the owner
of the computer or information and communications system, including the
introduction of computer viruses and the like, resulting on the corruption,
destruction, alteration, theft or loss of electronic data messages or
electronic documents shall be punished by a minimum fine of One
hundred thousand pesos (P100,000.00) and a maximum commensurate
to the damage incurred and a mandatory imprisonment of six (6) months
to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
Orders of the Regional Trial Court and the Decision of the Court of Appeals
are REVERSED and SET ASIDE. The Regional Trial Court is directed to
issue an order granting the motion of the petitioner to quash the Amended
Information.
SO ORDERED.
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result, he
should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on
a common theory expounded in two well-known decisions1 rendered
decades ago by the Court of Appeals, upholding the existence of frustrated
theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in
1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives
occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and
Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at
around 4:30 p.m., petitioner and Calderon were sighted outside the Super
Sale Club, a supermarket within the ShoeMart (SM) complex along North
EDSA, by Lorenzo Lago (Lago), a security guard who was then manning
his post at the open parking area of the supermarket. Lago saw petitioner,
who was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the
well-known "Tide" brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then returned
inside the supermarket, and after five (5) minutes, emerged with more
cartons of Tide Ultramatic and again unloaded these boxes to the same
area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded
the cab and directed it towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who proceeded
to stop the taxi as it was leaving the open parking area. When Lago asked
petitioner for a receipt of the merchandise, petitioner and Calderon
reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow
security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The
filched items seized from the duo were four (4) cases of Tide Ultramatic,
one (1) case of Ultra 25 grams, and three (3) additional cases of detergent,
the goods with an aggregate value of ₱12,090.00. 9
Petitioner and Calderon were first brought to the SM security office before
they were transferred on the same day to the Baler Station II of the
Philippine National Police, Quezon City, for investigation. It appears from
the police investigation records that apart from petitioner and Calderon,
four (4) other persons were apprehended by the security guards at the
scene and delivered to police custody at the Baler PNP Station in
connection with the incident. However, after the matter was referred to
the Office of the Quezon City Prosecutor, only petitioner and Calderon
were charged with theft by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the incident. 10
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they
were haled by Lago and his fellow security guards after a commotion and
brought to the Baler PNP Station. Calderon alleged that on the afternoon
of the incident, he was at the Super Sale Club to withdraw from his ATM
account, accompanied by his neighbor, Leoncio Rosulada. 11 As the queue
for the ATM was long, Calderon and Rosulada decided to buy snacks inside
the supermarket. It was while they were eating that they heard the
gunshot fired by Lago, leading them to head out of the building to check
what was
transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention.12 Meanwhile, petitioner
testified during trial that he and his cousin, a Gregorio Valenzuela,13 had
been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security
guard Lago fire a shot. The gunshot caused him and the other people at the
scene to start running, at which point he was apprehended by Lago and
Page 42 of 71
brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others
were brought to the Baler Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was detained overnight, and
eventually brought to the prosecutor’s office where he was charged with
theft.14 During petitioner’s cross-examination, he admitted that he had
been employed as a "bundler" of GMS Marketing, "assigned at the
supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court
(RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon
of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum. 17 The RTC
found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused as
perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only petitioner
filed a brief19 with the Court of Appeals, causing the appellate court to
deem Calderon’s appeal as abandoned and consequently dismissed.
Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was
never placed in a position to freely dispose of the articles
stolen.20 However, in its Decision dated 19 June 2003, 21 the Court of
Appeals rejected this contention and affirmed petitioner’s
conviction.22 Hence the present Petition for Review,23 which expressly
seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the theft
of several cases of detergent with a total value of ₱12,090.00 of which he
was charged.25 As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the
RTC and the Court of Appeals. The only question to consider is whether
under the given facts, the theft should be deemed as consummated or
merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites26 two decisions rendered many years ago by the Court of Appeals:
People v. Diño27 and People v. Flores.28 Both decisions elicit the interest of
this Court, as they modified trial court convictions from consummated to
frustrated theft and involve a factual milieu that bears similarity to the
present case. Petitioner invoked the same rulings in his appeal to the Court
of Appeals, yet the appellate court did not expressly consider the import
of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to
the Diño and Flores rulings since they have not yet been expressly adopted
as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come
to pass before us. Yet despite the silence on our part, Diño and Flores have
attained a level of renown reached by very few other appellate court
rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook
examples of frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Diño and Flores are
doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any
scenario that involves the thief having to exit with the stolen property
through a supervised egress, such as a supermarket checkout counter or
a parking area pay booth, may easily call for the application of Diño and
Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Diño and Flores and
the theories offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to examine
whether those theories are correct and should continue to influence
prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the
specific issues relative to "frustrated theft," it is necessary to first refer to
the basic rules on the three stages of crimes under our Revised Penal
Code.30
Article 6 defines those three stages, namely the consummated, frustrated
and attempted felonies. A felony is consummated "when all the elements
necessary for its execution and accomplishment are present." It is
frustrated "when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that
portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and
the objective phase begins.32 It has been held that if the offender never
passes the subjective phase of the offense, the crime is merely
attempted.33 On the other hand, the subjective phase is completely passed
in case of frustrated crimes, for in such instances, "[s]ubjectively the crime
is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution despite commencing the
commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the
Revised Penal Code are generally enumerated in the code itself, the task
of ascertaining whether a crime is attempted only would need to compare
the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was "produced" after
all the acts of execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal
Code, while the elements in turn unravel the particular requisite acts of
execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea"
supplies an important characteristic of a crime, that "ordinarily, evil intent
must unite with an unlawful act for there to be a crime," and accordingly,
there can be no crime when the criminal mind is wanting. 35 Accepted in
this jurisdiction as material in crimes mala in se, 36mens rea has been
defined before as "a guilty mind, a guilty or wrongful purpose or criminal
intent,"37 and "essential for criminal liability."38 It follows that the
statutory definition of our mala in se crimes must be able to supply what
the mens rea of the crime is, and indeed the U.S. Supreme Court has
comfortably held that "a criminal law that contains no mens rea
requirement infringes on constitutionally protected rights."39 The
criminal statute must also provide for the overt acts that constitute the
Page 43 of 71
crime. For a crime to exist in our legal law, it is not enough that mens rea
be shown; there must also be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable
that the language of the law expressly provide when the felony is
produced. Without such provision, disputes would inevitably ensue on the
elemental question whether or not a crime was committed, thereby
presaging the undesirable and legally dubious set-up under which the
judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term is embedded
which attests when the felony is produced by the acts of execution. For
example, the statutory definition of murder or homicide expressly uses
the phrase "shall kill another," thus making it clear that the felony is
produced by the death of the victim, and conversely, it is not produced if
the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without the
latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass
is forbidden or which belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall gather cereals, or other
forest or farm products.
Article 308 provides for a general definition of theft, and three alternative
and highly idiosyncratic means by which theft may be committed. 41 In the
present discussion, we need to concern ourselves only with the general
definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft ─ the taking of
personal property of another. It is also clear from the provision that in
order that such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was with intent to
gain; without force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1) that
there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking
be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of
persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the definition of
theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass "any kind of physical handling of property
belonging to another against the will of the owner," 43 a definition similar
to that by Paulus that a thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea had taken
hold that more than mere physical handling, there must further be an
intent of acquiring gain from the object, thus: "[f]urtum est contrectatio
rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain,
was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain. 46
In Spanish law, animo lucrandi was compounded with apoderamiento, or
"unlawful taking," to characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to
be coupled with "the intent to appropriate the object in order to constitute
apoderamiento; and to appropriate means to deprive the lawful owner of
the thing."47 However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the
taking48 or an intent to permanently deprive the owner of the stolen
property;49 or that there was no need for permanency in the taking or in
its intent, as the mere temporary possession by the offender or
disturbance of the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted
the latter thought that there was no need of an intent to permanently
deprive the owner of his property to constitute an unlawful taking. 51
So long as the "descriptive" circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the completion of
the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the attempted
stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without
need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales Club,
petitioner forfeited the extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated
theft, we are obliged to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the theft would have been
frustrated only, once the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, "do not produce [such theft]
by reason of causes independent of the will of the perpetrator." There are
clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will
of the perpetrator. The second factor ultimately depends on the evidence
at hand in each particular case. The first, however, relies primarily on a
doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the
commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated,
it is necessary to inquire as to how exactly is the felony of theft "produced."
Parsing through the statutory definition of theft under Article 308, there
is one apparent answer provided in the language of the law — that theft is
already "produced" upon the "tak[ing of] personal property of another
without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt from
the baggage of a foreign national and secreted the item in his desk at the
Custom House. At no time was the accused able to "get the merchandise
out of the Custom House," and it appears that he "was under observation
during the entire transaction."54 Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft,
finding that "all the elements of the completed crime of theft are
present."55 In support of its conclusion that the theft was consummated,
the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
Page 44 of 71
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by the
policeman but sometime later. The court said: "[x x x] The trial court did
not err [x x x ] in considering the crime as that of consummated theft
instead of frustrated theft inasmuch as nothing appears in the record
showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an
interval of time." (Decision of the Supreme Court of Spain, October 14,
1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church,
the offended party got back the money from the defendant. The court said
that the defendant had performed all the acts of execution and considered
the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of
a key opened up a case, and from the case took a small box, which was also
opened with a key, from which in turn he took a purse containing 461
reales and 20 centimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards who were
stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent
to appropriate the same, he executed all the acts necessary to constitute
the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the
elements of the consummated crime." (Decision of the Supreme Court of
Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions
cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their
apprehension. The interval between the commission of the acts of theft
and the apprehension of the thieves did vary, from "sometime later" in the
1898 decision; to the very moment the thief had just extracted the money
in a purse which had been stored as it was in the 1882 decision; and before
the thief had been able to spirit the item stolen from the building where
the theft took place, as had happened in Adiao and the 1897 decision. Still,
such intervals proved of no consequence in those cases, as it was ruled
that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is
People v. Sobrevilla,57 where the accused, while in the midst of a crowd in
a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, "caught hold of
the [accused]’s shirt-front, at the same time shouting for a policeman; after
a struggle, he recovered his pocket-book and let go of the defendant, who
was afterwards caught by a policeman."58 In rejecting the contention that
only frustrated theft was established, the Court simply said, without
further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded
in taking the pocket-book, and that determines the crime of theft. If the
pocket-book was afterwards recovered, such recovery does not affect the
[accused’s] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme
Court cases cited in the latter, in that the fact that the offender was able to
succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein
contradict the position of petitioner in this case. Yet to simply affirm
without further comment would be disingenuous, as there is another
school of thought on when theft is consummated, as reflected in the Diño
and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after
Adiao and 15 years before Flores. The accused therein, a driver employed
by the United States Army, had driven his truck into the port area of the
South Harbor, to unload a truckload of materials to waiting U.S. Army
personnel. After he had finished unloading, accused drove away his truck
from the Port, but as he was approaching a checkpoint of the Military
Police, he was stopped by an M.P. who inspected the truck and found
therein three boxes of army rifles. The accused later contended that he had
been stopped by four men who had loaded the boxes with the agreement
that they were to meet him and retrieve the rifles after he had passed the
checkpoint. The trial court convicted accused of consummated theft, but
the Court of Appeals modified the conviction, holding instead that only
frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles "pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo
inside the depot, it would be allowed to pass through the check point
without further investigation or checking."60 This point was deemed
material and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles
stolen, even if it were more or less momentary."61 Support for this
proposition was drawn from a decision of the Supreme Court of Spain
dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so haga
en circunstancias tales que permitan al sustractor la libre disposicion de
aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte,
dado el concepto del delito de hurto, no puede decirse en realidad que se
haya producido en toda su extension, sin materializar demasiado el acto
de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles stolen
must first be passed through the M.P. check point, but since the offense
was opportunely discovered and the articles seized after all the acts of
execution had been performed, but before the loot came under the final
control and disposal of the looters, the offense can not be said to have been
fully consummated, as it was frustrated by the timely intervention of the
guard. The offense committed, therefore, is that of frustrated theft. 63
Diño thus laid down the theory that the ability of the actor to freely
dispose of the items stolen at the time of apprehension is determinative
as to whether the theft is consummated or frustrated. This theory was
applied again by the Court of Appeals some 15 years later, in Flores, a case
which according to the division of the court that decided it, bore "no
substantial variance between the circumstances [herein] and in
[Diño]."64 Such conclusion is borne out by the facts in Flores. The accused
therein, a checker employed by the Luzon Stevedoring Company, issued a
delivery receipt for one empty sea van to the truck driver who had loaded
the purportedly empty sea van onto his truck at the terminal of the
stevedoring company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal. However, the
guards insisted on inspecting the van, and discovered that the "empty" sea
van had actually contained other merchandise as well. 65 The accused was
prosecuted for theft qualified by abuse of confidence, and found himself
Page 45 of 71
convicted of the consummated crime. Before the Court of Appeals, accused
argued in the alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of
spontaneous desistance on the part of the accused that "literally frustrated
the theft." However, the Court of Appeals, explicitly relying on Diño, did
find that the accused was guilty only of frustrated, and not consummated,
theft.
As noted earlier, the appellate court admitted it found "no substantial
variance" between Diño and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Diño, citing a
"traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional
ruling" was qualified by the words "is placed in a situation where [the
actor] could dispose of its contents at once." 66 Pouncing on this
qualification, the appellate court noted that "[o]bviously, while the truck
and the van were still within the compound, the petitioner could not have
disposed of the goods ‘at once’." At the same time, the Court of Appeals
conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where
freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the ability
of the actor "to freely dispose of the articles stolen, even if it were only
momentary." Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, "es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea
mas o menos momentaneamente." The qualifier "siquiera sea mas o
menos momentaneamente" proves another important consideration, as it
implies that if the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed consummated.
Such circumstance was not present in either Diño or Flores, as the stolen
items in both cases were retrieved from the actor before they could be
physically extracted from the guarded compounds from which the items
were filched. However, as implied in Flores, the character of the item
stolen could lead to a different conclusion as to whether there could have
been "free disposition," as in the case where the chattel involved was of
"much less bulk and more common x x x, [such] as money x x x." 68
In his commentaries, Chief Justice Aquino makes the following pointed
observation on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when
the thief is able to freely dispose of the stolen articles even if it were more
or less momentary. Or as stated in another case[69 ], theft is consummated
upon the voluntary and malicious taking of property belonging to another
which is realized by the material occupation of the thing whereby the thief
places it under his control and in such a situation that he could dispose of
it at once. This ruling seems to have been based on Viada’s opinion that in
order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao
and other cases, also states that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with
intent to appropriate the same, although his act of making use of the thing
was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming
variance with the Diño and Flores rulings. People v. Batoon 73 involved an
accused who filled a container with gasoline from a petrol pump within
view of a police detective, who followed the accused onto a passenger
truck where the arrest was made. While the trial court found the accused
guilty of frustrated qualified theft, the Court of Appeals held that the
accused was guilty of consummated qualified theft, finding that "[t]he
facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate
that actual taking with intent to gain is enough to consummate the crime
of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital
linen from a supply depot and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen items were discovered by
the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Diño, the Court of Appeals held that the
accused were guilty of consummated theft, as the accused "were able to
take or get hold of the hospital linen and that the only thing that was
frustrated, which does not constitute any element of theft, is the use or
benefit that the thieves expected from the commission of the offense."76
In pointing out the distinction between Diño and Espiritu, Reyes wryly
observes that "[w]hen the meaning of an element of a felony is
controversial, there is bound to arise different rulings as to the stage of
execution of that felony."77 Indeed, we can discern from this survey of
jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of the
concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry, we
have to reckon with the import of this Court’s 1984 decision in Empelis v.
IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four
(4) persons in the premises of his plantation, in the act of gathering and
tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had
seized, and were subsequently arrested after the owner reported the
incident to the police. After trial, the accused were convicted of qualified
theft, and the issue they raised on appeal was that they were guilty only of
simple theft. The Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code,79 but further held that the accused
were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the
theft was consummated or frustrated was raised by any of the parties.
What does appear, though, is that the disposition of that issue was
contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because
petitioners were not able to perform all the acts of execution which should
have produced the felony as a consequence. They were not able to carry
the coconuts away from the plantation due to the timely arrival of the
owner.80
No legal reference or citation was offered for this averment, whether Diño,
Flores or the Spanish authorities who may have bolstered the conclusion.
There are indeed evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were
not able to perform all the acts of execution which should have produced
the felon as a consequence."81 However, per Article 6 of the Revised Penal
Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was
not able to perform all the acts of execution, the crime is attempted,
provided that the non-performance was by reason of some cause or
accident other than spontaneous desistance. Empelis concludes that the
crime was
Page 46 of 71
frustrated because not all of the acts of execution were performed due to
the timely arrival of the owner. However, following Article 6 of the Revised
Penal Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of
the timely arrival of the owner, and not because of spontaneous desistance
by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider
the present petition. Even if the two sentences we had cited actually
aligned with the definitions provided in Article 6 of the Revised Penal
Code, such passage bears no reflection that it is the product of the
considered evaluation of the relevant legal or jurisprudential thought.
Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited
as authority on theft. Indeed, we cannot see how Empelis can contribute
to our present debate, except for the bare fact that it proves that the Court
had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal
value is extremely compromised by the erroneous legal premises that
inform it, and also by the fact that it has not been entrenched by
subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that
frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo
Penal de España was then in place. The definition of the crime of theft, as
provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño
se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño
causado, salvo los casos previstos en los artίculos 606, núm. 1.0; 607,
núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y
618.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the said
code would be revised again in 1932, and several times thereafter. In fact,
under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será
castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of
Spain, "la libre disposicion" of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and
perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de España. Therein, he raised at
least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or
consummated theft was committed "[e]l que en el momento mismo de
apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed derived
from the 1888 decision of the Supreme Court of Spain, that decision’s
factual predicate occasioning the statement was apparently very different
from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting
a layer of clothing off a mannequin, and who then proceeded to throw
away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held to
that effect.85 A few decades later, the esteemed Eugenio Cuello Calón
pointed out the inconsistent application by the Spanish Supreme Court
with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro que
tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por
la intervención de la policia situada en el local donde se realizó la
sustracción que impidió pudieran los reos disponer de lo sustraído, 30 de
octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento,
pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay
frustración "muy próxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustracción, 28 febrero 1931.
Algunos fallos han considerado la existencia de frustración cuando,
perseguido el culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921;
esta doctrina no es admissible, éstos, conforme a lo antes expuesto, son
hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is
actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposición del agente. Con
este criterio coincide la doctrina sentada últimamente porla
jurisprudencia española que generalmente considera consumado el hurto
cuando el culpable coge o aprehende la cosa y ésta quede por tiempo más
o menos duradero bajo su poder. El hecho de que éste pueda aprovecharse
o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere
recuperada. No se concibe la frustración, pues es muy dificil que el que
hace cuanto es necesario para la consumación del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos
consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who
was content with replicating the Spanish Supreme Court decisions on the
matter, Cuello Calón actually set forth his own thought that questioned
whether theft could truly be frustrated, since "pues es muy dificil que el
que hace cuanto es necesario para la consumación del hurto no lo
consume efectivamente." Otherwise put, it would be difficult to foresee
how the execution of all the acts necessary for the completion of the crime
would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted
force in scholarly thought that obliges us to accept frustrated theft, as
proposed in Diño and Flores. A final ruling by the Court that there is no
crime of frustrated theft in this jurisdiction will not lead to scholastic
pariah, for such a submission is hardly heretical in light of Cuello Calón’s
position.
Page 47 of 71
Accordingly, it would not be intellectually disingenuous for the Court to
look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are,
to accept that theft is capable of commission in its frustrated stage.
Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Diño and Flores doctrines, the
answer has to be in the negative. If we did so, it would arise not out of
obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it
lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal
laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is
Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal laws
where a "narrow interpretation" is appropriate. "The Court must take
heed of language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids." 89
With that in mind, a problem clearly emerges with the Diño/Flores dictum.
The ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension
in Article 308, whether as a descriptive or operative element of theft or as
the mens rea or actus reus of the felony. To restate what this Court has
repeatedly held: the elements of the crime of theft as provided for in
Article 308 of the Revised Penal Code are: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the
use of violence against or intimidation of persons or force upon things. 90
Such factor runs immaterial to the statutory definition of theft, which is
the taking, with intent to gain, of personal property of another without the
latter’s consent. While the Diño/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by
the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or unable
to freely dispose of the property stolen since the deprivation from the
owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier
cited, that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate
the same, although his act of making use of the thing was frustrated." 91
It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of "taking" itself, in that there
could be no true taking until the actor obtains such degree of control over
the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been completed, the
"taking not having been accomplished." Perhaps this point could serve as
fertile ground for future discussion, but our concern now is whether there
is indeed a crime of frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover, such issue will not apply
to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With
intent to gain, he acquired physical possession of the stolen cases of
detergent for a considerable period of time that he was able to drop these
off at a spot in the parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. 92 And long ago,
we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of
the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will
be here noted that the definition does not require that the taking should
be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance. 94
Insofar as we consider the present question, "unlawful taking" is most
material in this respect. Unlawful taking, which is the deprivation of one’s
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act
of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of
the Revised Penal Code, theft cannot have a frustrated stage. Theft can
only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider
that once the offenders therein obtained possession over the stolen items,
the effect of the felony has been produced as there has been deprivation
of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already
been deprived of their right to possession upon the completion of the
taking.
Moreover, as is evident in this case, the adoption of the rule —that the
inability of the offender to freely dispose of the stolen property frustrates
the theft — would introduce a convenient defense for the accused which
does not reflect any legislated intent,95 since the Court would have carved
a viable means for offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is difficult to
formulate definite standards as to when a stolen item is susceptible to free
disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual
circumstances such as the size and weight of the property, the location of
the property, the number and identity of people present at the scene of the
crime, the number and identity of people whom the offender is expected
to encounter upon fleeing with the stolen property, the manner in which
the stolen item had been housed or stored; and quite frankly, a whole lot
more. Even the fungibility or edibility of the stolen item would come into
account, relevant as that would be on whether such property is capable of
free disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all
the colorful detail, the owner was indeed deprived of property by one who
intended to produce such deprivation for reasons of gain. For such will
remain the presumed fact if frustrated theft were recognized, for therein,
all of the acts of execution, including the taking, have been completed. If
the facts establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the
Page 48 of 71
attempted stage, as not all of the acts of execution have been performed.
But once all these acts have been executed, the taking has been completed,
causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common
sense. Yet they do not align with the legislated framework of the crime of
theft. The Revised Penal Code provisions on theft have not been designed
in such fashion as to accommodate said rulings. Again, there is no language
in Article 308 that expressly or impliedly allows that the "free disposition
of the items stolen" is in any way determinative of whether the crime of
theft has been produced. Diño itself did not rely on Philippine laws or
jurisprudence to bolster its conclusion, and the later Flores was ultimately
content in relying on Diño alone for legal support. These cases do not enjoy
the weight of stare decisis, and even if they did, their erroneous
appreciation of our law on theft leave them susceptible to reversal. The
same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of
frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Diño and Flores rulings, his petition must be denied, for
we decline to adopt said rulings in our jurisdiction. That it has taken all
these years for us to recognize that there can be no frustrated theft under
the Revised Penal Code does not detract from the correctness of this
conclusion. It will take considerable amendments to our Revised Penal
Code in order that frustrated theft may be recognized. Our deference to
Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
QUALIFIED THEFT
G.R. No. 199208 July 30, 2014
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
TRINIDAD A. CAHILIG, Appellant.
DECISION
CARPIO, J.:
The Case
Before the Court is an appeal by Trinidad A. Cahilig (Cahilig) from the
Decision qf the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01381
affirming the Decision of the Regional Trial Court (RTC), Branch 137,
Makati City in Criminal Case Nos. 03-2178 to 2207 finding her guilty of
thirty (30) counts of Qualified Theft.
The Facts
Cahilig worked as cashier at Wyeth Philippines Employees Savings and
Loan Association, Inc. (WPESLAI) from December 1992 until 7 November
2001. She was tasked with handling, managing, receiving, and disbursing
the funds of the WPESLAI.1
It was discovered that from 31 May 2000 to 31 July 2001, Cahilig made
withdrawals from the funds ofWPESLAI and appropriated the same for
her personal benefit.2 Cahilig would prepare disbursement vouchers, to be
approved by the WPESLAI president and Board of Directors, in order to
withdraw funds from one of WPESLAI’s bank accounts then transfer these
funds to its other bank account. The withdrawal was done by means of a
 check payable to Cahilig, in her capacity as WPESLAI cashier. This
Criminal Case No. 03-2193 ₱200,000.00
procedure for transferringfunds from one bank account to another was
said to be standard practice at WPESLAI. However, Cahilig did not actually
transfer the funds. Instead, she made it appear in her personal WPESLAI
ledger that a deposit was made into her account and then she Criminal
would fillCase No. 03-2194 ₱25,000.00
out a withdrawal slip to simulate a withdrawal of said amount from her
capital contribution.3

Criminal
The trial court found that Cahilig employed the same scheme in each of theCase No. 03-2195 ₱500,000.00
30 cases of qualified theft filed against her, allowing her to pilfer from
WPESLAI’S funds a total of ₱6,268,300.00, brokendown into the following
amounts:
Criminal Case No. 03-2196 ₱500,000.00

al Case No. 03-2178 ₱200,000.00

Criminal Case No. 03-2197 ₱30,000.00

al Case No. 03-2179 ₱250,000.00

Criminal Case No. 03-2198 ₱400,000.00

al Case No. 03-2180 ₱200,000.00

Criminal Case No. 03-2199 ₱300,000.00

al Case No. 03-2181 ₱55,000.00

Criminal Case No. 03-2200 ₱500,000.00

al Case No. 03-2182 ₱55,000.00

Criminal Case No. 03-2201 ₱65,000.00

al Case No. 03-2183 ₱85,000.00

Criminal Case No. 03-2202 ₱47,000.00

al Case No. 03-2184 ₱350,000.00

Criminal Case No. 03-2203 ₱500,000.00

al Case No. 03-2185 ₱250,000.00

Criminal Case No. 03-2204 ₱40,000.00

al Case No. 03-2186 ₱20,000.00

Criminal Case No. 03-2205 ₱400,000.00

al Case No. 03-2187 ₱250,000.00

Criminal Case No. 03-2206 ₱35,000.00

al Case No. 03-2188 ₱60,000.00

Criminal Case No. 03-2207 ₱500,000.0

al Case No. 03-2189 ₱150,000.00

All 30 cases were consolidated and jointly heard. Upon agreement of the
parties, only three of the 30 cases went thru trial. The remaining 27 cases
were the subject of a written stipulation of facts, on the basis of which
al Case No. 03-2190 ₱50,000.00 these were submitted for resolution. The stipulation stated, among others:
That for purposes of efficient and speedy administration of these cases,
the parties herein agreed, during the pre-trial conference and approved
by the Honorable Court, that the actualtrial and presentation of evidence
al Case No. 03-2191 ₱46,300.00 will be done only on the first three (3) counts of the cases, i.e., on Cases
Numbers 03-2178 to 03-2180, with the understanding and agreement
that after the termination of the hearing onsaid three (3) cases, the parties
shall adopt the results thereof in the remaining twenty-seven (27) counts,
al Case No. 03-2192 ₱205,000.00 considering that all the cases arose from similar transactions with the
same methods or modus operandi used in committing the crime charged,
and involving the same accused and the same offended party[.] 4

Page 49 of 71
The Ruling of the Regional Trial Court
The RTC found Cahilig guilty of the crimes charged, in a Decision dated 16
June 2005, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, this Court hereby finds Trinidad
Cahlig guilty beyond reasonable doubt of the crime of qualified theft in
each of the informations, and sentences her to suffer the penalty of:
1. In Criminal Case No. 03-2178, reclusion perpetuaand to indemnify the
private complainant in the amount of ₱200,000.00;
2. In Criminal Case No. 03-2179, reclusion perpetua and to indemnify the
private complainant in the amount of ₱250,000.00;
3. In Criminal Case No. 03-2180, reclusion perpetuaand to indemnify the
private complainant in the amount of ₱200,000.00;
4. In Criminal Case No. 03-2181, reclusion perpetuaand to indemnify the
private complainant in the amount of ₱55,000.00;
5. In Criminal Case No. 03-2182, reclusion perpetua and to indemnify the
private complainant in the amount of ₱55,000.00;
6. In Criminal Case No. 03-2183, reclusion perpetua and to indemnify the
private complainant in the amount of ₱85,000.00;
7. In Criminal Case No. 03-2184, reclusion perpetua and to indemnify the
private complainant in the amount of ₱350,000.00;
8. In Criminal Case No. 03-2185, reclusion perpetua and to indemnify the
private complainant in the amount of ₱250,000.00;
9. In Criminal Case No. 03-2186, ten (10) years and one (1) days (sic) as
minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱20,000.00;
10. In Criminal Case No. 03-2187, reclusion perpetua and to indemnify the
private complainant in the amount of ₱250,000.00;
11. In Criminal Case No. 03-2188, reclusion perpetua and to indemnify the
private complainant in the amount of ₱60,000.00;
12. In Criminal Case No. 03-2189, reclusion perpetua and to indemnify the
private complainant in the amount of ₱150,000.00;
13. In Criminal Case No. 03-2190, reclusion perpetua and to indemnify the
private complainant in the amount of ₱50,000.00;
14. In Criminal Case No. 03-2191, ten (10) years and one (1) day as
minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱4[6],300.00;
15. In Criminal Case No. 03-2192, reclusion perpetua and to indemnify the
private complainant in the amount of ₱205,000.00;
16. In Criminal Case No. 03-2193, reclusion perpetua and to indemnify the
private complainant in the amount of ₱200,000.00;
17. In Criminal Case No. 03-2194, ten (10) years and one (1) day as
minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱25,000.00;
Page 50 of 71
18. In Criminal Case No. 03-2195, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
19. In Criminal Case No. 03-2196, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
20. In Criminal Case No. 03-2197, ten (10) years and one (1) day as
minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱30,000.00;
21. In Criminal Case No. 03-2198, reclusion perpetua and to indemnify the
private complainant in the amount of ₱400,000.00;
22. In Criminal Case No. 03-2199, reclusion perpetua and to indemnify the
private complainant in the amount of ₱300,000.00;
23. In Criminal Case No. 03-2200, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
24. In Criminal Case No. 03-2201, reclusion perpetua and to indemnify the
private complainant in the amount of ₱65,000.00;
25. In Criminal Case No. 03-2202, reclusion perpetua and to indemnify the
private complainant in the amount of ₱47,000.00;
26. In Criminal Case No. 03-2203, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
27. In Criminal Case No. 03-2204, ten (10) years and one (1) day as
minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱40,000.00;
28. In Criminal Case No. 03-2205, reclusion perpetua and to indemnify the
private complainant in the amount of ₱400,000.00;
29. In Criminal Case No. 03-2206, ten (10) years and one (1) day as
minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱35,000.00;
30. In Criminal Case No. 03-2207, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00.
Costs against accused in eachof the above numbered cases.
SO ORDERED.5
The RTC held that Cahilig, as cashier of WPESLAI, was granted trust and
confidence by the key officers ofthe association. The RTC noted that
Cahilig "enjoyed access to the funds and financial records of the
association, a circumstance that understandably facilitated her easy
withdrawal of funds which she converted to her personal use in the
manner heretofore described. Undoubtedly, she betrayed the trust and
confidence reposed upon her by her employer."6
The Ruling of the Court of Appeals
Cahilig appealed her conviction to the CA. In a Decision dated 18 February
2011, the CA denied her appeal and affirmed the RTC’s Decision.
The CA held that all the elements of Qualified Theft were present in every
charge:
x x x First, there was taking ofpersonal property, when accusedappellant
took the proceeds of the WPESLAI checks issued in her name as cashier of
the association which are supposed to be redeposited to another account
of WPESLAI. Second, the property belongs to another, since the funds
undisputably belong to WPESLAI. Third, the taking was done without the
consent of the owner, which is obvious because accusedappellant created
a ruse showing that the funds were credited to another account but were
actually withdrawn from her own personal account. Fourth, the taking
was done with intentto gain, as accused-appellant, for her personal
benefit, took the fundsby means of a modus operandi that made it appear
through the entries inthe ledgers that all withdrawals and deposits were
made in the normal course of business and with the approval of WPESLAI.
Fifth, the taking was accomplished without violence or intimidation
against the person [or] force upon things. And finally, the acts were
committed with grave abuse of confidence considering that her position
as cashier permeates trust and confidence. 7
The Court’s Ruling
The Court denies the petition. However, the penalties imposed by the trial
court in six of the 30 cases are incorrect and, therefore, must be modified.
Qualified Theft
Article 310, in relation to Article 308, of the Revised Penal Code defines
the crime of Qualified Theft:
Art. 310. Qualified theft. - The crime of theft shall be punished by the
penalties next higher by two degrees than those respectively specified in
the next preceding articles, if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the premises of a
plantation, fish taken froma fishpond or fishery, orif property is taken on
the occasion of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance.
Art. 308. Who are liable for theft. - Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without the
latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lostproperty, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or objects of the damage
caused by him; and
3. Any person who shall enter an enclosed estate or a field where trespass
is forbidden or which belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall gather fruits, cereals, or
other forest or farm products.
Thus, the elements of Qualified Theft, committed with grave abuse of
confidence, are as follows:
1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owner’s consent;
Page 51 of 71
5. That it be accomplished without the use of violence or intimidation
against persons, nor of force upon things;
6. That it be done with grave abuse of confidence. 8
It is clear that all the elements ofQualified Theft are present in these cases.
Cahilig took money from WPESLAI and its depositors by taking advantage
of her position. Her intent to gain is clear in the use of a carefully planned
and deliberately executed scheme to commit the theft.
Grave abuse of confidence, as an element of Qualified Theft, "must be the
result of the relation by reason of dependence, guardianship, or vigilance,
between the appellant and the offended party that might create a high
degree of confidence betweenthem which the appellant abused." 9
Cahilig’s position was one reposed with trust and confidence, considering
that it involves "handling, managing, receiving, and disbursing" money
from WPESLAI’s depositors and other funds of the
association.1âwphi1 Cahilig’s responsibilities as WPESLAI cashier
required prudence and vigilance over the money entrusted into her care.
However, instead of executing her duties, she deliberately misled the
board of directors into authorizing disbursements for money that
eventually ended up in her personal account, a fact that Cahilig did not
deny.
Proper Penalty
The trial court, however, erred inthe penalty imposed in Criminal Case
Nos. 03-2186, 03-2191, 03-2194, 03-2197, 03-2204, and 03-2206.
To recall, the amounts involved in the aforesaid cases are ₱20,000.00,
₱46,300.00, ₱25,000.00, ₱30,000.00, ₱40,000.00, and ₱35,000.00,
respectively.
Article 310 provides that Qualified Theft "shall be punished by the
penalties next higher by two degrees than those respectively specified in
the next preceding article." Article 309, in turn, states:
Art. 309. Penalties. -Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the
value of the thing stolen is more than 12,000 pesos but does not exceed
22,000 pesos; but if the value of the thing stolen exceeds the latter amount,
the penalty shall be the maximum period of the one prescribed in this
paragraph, and one year for each additional ten thousand pesos, but the
total of the penalty which may be imposed shall not exceed twenty years.
In such cases, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed pr is ion mayor or reclusion temporal, as the case
may be.
xxxx
In the aforementioned six cases, none of the amounts are below
₱12,000.00. Hence, if the crime charged had been simple theft, the penalty
in any of these six cases would have been, at least, prision mayor in its
minimum and medium periods. Since it was established that the crime
was qualified by grave abuse of confidence, Article 310 provides that the
penalty to be imposed shall be the one "next higher by two degrees," which
in this case is reclusion perpetua. Accordingly, the penalty in these six
cases should be reclusion perpetua.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No.
01381 is AFFIRMED with MODIFICATION. In lieu of the penalties meted
out by the trial court in Criminal Case Nos. 03-2186, 03-2191, 03-2194,
03-2197, 03-2204, and 03-2206, appellant Trinidad A. Cahilig is hereby
sentenced to suffer the penalty of reclusion perpetua for each count of
qualified theft in the aforesaid cases. The judgment to indemnify the
amounts in each of the corresponding charges stands.
SO ORDERED.
G.R. No. 138954 November 25, 2004
ASUNCION GALANG ROQUE, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, assailing the decision of the Court of Appeals in CA–G.R.
CR No. 20411, entitled "People of the Philippines vs. Asuncion Galang
Roque," which affirmed in toto the decision of the Regional Trial Court
(RTC) of Guagua, Pampanga, Branch 49, where petitioner was found guilty
of the crime of qualified theft.
In an information dated December 3, 1990, the petitioner was charged
with qualified theft in the Regional Trial Court of Guagua Pampanga,
Branch 49. The Information reads as follows:
That on or about the 16th day of November, 1989, in the municipality of
Floridablanca, province of Pampanga, Philippines and within the
jurisdiction of his Honorable Court, the above-named accused ASUNCION
GALANG ROQUE, being then employed as teller of the Basa Air Base
Savings and Loan Association Inc. (BABSLA) with office address at Basa
Air Base, Floridablanca, Pampanga, and as such was authorized and
reposed with the responsibility to receive and collect capital contributions
from its member/contributors of said corporation, and having collected
and received in her capacity as teller of the BABSLA the sum of TEN
THOUSAND PESOS (P10,000.00), said accused, with intent of gain, with
grave abuse of confidence and without the knowledge and consent of said
corporation, did then and there willfully, unlawfully and feloniously take, petitioner, she referred her to Col. Dunilayan, the president and chairman
steal and carry away the amount of P10,000.00, Philippine currency, by
making it appear that a certain depositor by the name of Antonio Salazar
withdrew from his Savings Account No. 1359, when in truth and in fact
said Antonio Salazar did not withdr[a]w the said amount of P10,000.00 to
the damage and prejudice of BABSLA in the total amount of P10,000.00,
Philippine currency.
All contrary to law.1
The evidence of the prosecution consisted of the testimonies of three
witnesses, namely: Antonio Salazar, Rosalina de Lazo and Reynaldo
Manlulu and Exhibits A to G with submarkings.
The first prosecution witness, Antonio Salazar (Salazar) is a
member/depositor of the Basa Air Base Savings and Loan Association Inc.
(BABSLA) as evidenced by his passbook No. 1359. He was made to sign
two ledgers when he opened his savings account. On November 16, 1989,
Salazar made a deposit of P2,000 at the BABSLA; however, he did not make
any withdrawal, nor did he authorize anyone to do the same on that date
Page 52 of 71
or on November 17, 1989 or for the whole month of November of that
year. Salazar disclosed that around July 1990 he heard that the funds of
other depositors were missing inside the BABSLA and were supposedly
clandestinely circulating around the base. Prodded by this news, and
considering that the balance in his passbook was P46,000, he went to the
BABSLA to withdraw P40,000, but was informed that his balance at the
BABSLA was insufficient to cover the withdrawal. He was not allowed to
withdraw. Rosalina de Lazo, the general manager, informed him that
several withdrawals were made on his account amounting to P30,500, as
evidenced by three (3) withdrawal slips. Included among these
withdrawal slips is one with the amount of P10,000, dated November 16,
1989. Salazar claimed that the signature appearing on said withdrawal
slip was not his signature. He does not personally know who made the
withdrawal of P10,000. Salazar assumed that the one in control of the
funds made the withdrawal.2
The second prosecution witness was the general manager of the BABSLA
in the person of Rosalina de Lazo (de Lazo). She has held her position as
general manager since 1983. De Lazo averred that the BABSLA had only
one teller, and that the petitioner, Asuncion Galang Roque, held that job
from 1989 up to the last working day of June 1990. She added that the
petitioner had not been absent from work, particularly in 1989. Sometime
in July 1990, she met MSgt. Antonio Salazar, who was complaining that the
amount of P30,500 was missing from his account. A comparison of the
bank's ledger and his passbook manifested that there were three (3)
withdrawals appearing on the ledger that do not appear in his passbook,
inclusive of the withdrawal made on November 16, 1989. She saw the
three (3) withdrawal slips and in the withdrawal slip dated November 16,
1989 the initial after the figure 11-17-89 is the customary initial of the
petitioner. She claimed that she was familiar with the customary initial of
the petitioner. The withdrawal slip dated November 16, 1989 was made
after 3:00 o'clock in the afternoon of the same day but was stamped 11-
17-89, as it is bank regulation that all transactions made after 3:00 p.m.
will be entered in the book the next day.
De Lazo further testified that at the commencement of the business hour,
petitioner gets cash from the treasurer and her beginning cash on
November 17, 1989 per Teller's Daily Report was P355,984.53 which she
used to serve all kinds of transactions pertaining to withdrawals. The
initial over the typewritten name "agroque" is the customary initial of the
petitioner, Asuncion Galang Roque. De Lazo claimed to be familiar with it.
At the end of the work day petitioner prepared the Abstract of Payment,
which is a summary of the withdrawals the teller paid that day as
evidenced by several withdrawal slips.
De Lazo testified that before the petitioner went on forced leave petitioner
sought her assistance because she feared she would be removed from
work. She claimed that petitioner admitted to taking some money from
the depositors, including the account of Sgt. Salazar. Unable to help
of the BABSLA, who told her to return the money immediately. Petitioner
told Col. Dunilayan that she would return the money. She failed to do so.
During the same meeting, petitioner, in the presence of Col. Dunilayan and
de Lazo, prepared a list containing the names of members from whose
accounts she took money. Petitioner gave the list to Col. Dunilayan. When
petitioner failed to return the money they decided to file a case against
her. In the morning of November 17, de Lazo was already aware of the
taking of the P10,000 that occurred the day prior. Since she had full trust
and confidence in petitioner, and did not fear that this anomaly would
persist, she did not ask for the presentation of the passbook so that the
corresponding entries could be made in order to avoid a discrepancy
between the ledger and the passbook, nor did she send notice to Antonio
Salazar. It is the practice of the bank that all withdrawals require the
presentation of the passbook. This was the first instance that a transaction
was not recorded in the passbook. There are only a few cases wherein she
(de Lazo) allows deposits to be made without the presentation of the
passbook on the same day. In these instances she just requires the
depositor to come some other time for the recording of the transaction in
the passbook. As of the date of this testimony, the BABSLA had already
paid deposits on accounts from which the petitioner had taken money,
including that of Antonio Salazar as indicated in the bank records. 3
The third and last prosecution witness is Reynaldo Manlulu, who is both
the treasurer and a member of the board of directors of the BABSLA. He
testified that petitioner was the teller of the BABSLA in November 1989
and that she reported for work on the 17th of that month. He intimated
that on that date petitioner got a beginning cash from him amounting to
P355,984.53, including all the the transactions that occurred after 3:00
p.m. of the preceding day. This beginning cash can be seen in the Teller's
Daily Report. The signature above the typewritten name "agroque" is
petitioner's because she signed it in his presence. Apart from the
beginning cash, he also turned over to petitioner the transactions that took
place after 3:00 p.m. of the preceding day, particularly the withdrawal slip
of MSgt. Salazar. At the end of the business day of November 17, 1989, she
prepared an abstract of payment and in this abstract the initial over the
typewritten name "agroque" is the initial of the petitioner because she
signed it in his presence. Petitioner paid the withdrawal of P16,300
evidenced by the withdrawal slips attached to the abstract of payment.
After she prepared the abstract of payment, petitioner turned over to him
the cash and all the transactions that were taken after 3:00 p.m. A Cash
Count shows the total cash that petitioner turned over to him. The initial
over the typewritten name "agroque" is petitioner's because it was signed
in his presence.4
The evidence for the petitioner consists of the testimony of the petitioner
herself and that of Atty. Norbin Dimalanta and Exhibits 1 to 5 with sub-
markings.
Petitioner, Asuncion Galang Roque, testified that she was employed as
teller at the BABSLA from 1979 until her termination in 1990. In the
morning she gets the money from the treasurer and they do a cash count
which is reflected in the Teller's Daily Report and at 3:00 p.m. she
prepares and submits an abstract of payment. However, before making
the abstract, she and the treasurer conduct a cash count and the remaining
cash is turned over to the treasurer. As a teller, she received deposits and
payments, deposits of checks and payments of loans. She does not
discharge any memorandum or withdrawals unless both the manager and
the treasurer previously approve it. Depositors cannot withdraw after
3:00 p.m., unless they talk to the manager or treasurer. Withdrawals done
after 3:00 p.m. are reflected as transactions of the following day. She
insisted that the charge against her of stealing and carrying away P10,000
is false since she did not prepare the withdrawal slip dated November 16,
1989 which involves the account of Antonio Salazar. She also denied
forging the signature of Salazar and affixing her initial. Petitioner also
disowned the initial in the abstract of payment dated November 17, 1989
and the initials on several withdrawal slips. She claimed to be innocent
and contended that Rosalina de Lazo is the one who is guilty because she
was only used by the president. The latter is still connected with the
BABSLA while the petitioner was terminated in June 1990.
Throughout the eleven years that petitioner worked as a teller at the
BABSLA, she had never been absent from work or required by the
treasurer to explain any discrepancy or anomaly related to the cash that
she handled as a teller. Before her dismissal, petitioner was not suspended
by the board of directors of the BABSLA during the investigation of her
case. She was put on forced leave which eventually led to her termination.
The manager was also supposed to be on forced leave. However, when the
manager reported for work and some members protested and filed a
petition, the president asked them to retract their statements by means of
executing an affidavit of desistance. Even though petitioner received
notice regarding the investigation, she did not attend because she knew
the personalities of the members of the committee. Only the accused and
the complainants whose accounts were withdrawn were investigated. She
filed a complaint with the Department of Labor in connection with her
dismissal but it was dismissed because she did not pursue it. Apart from
the president, there were seven (7) members of the board of directors of
the BABSLA in 1990: Col. Dunilayan, Col. Sanchez, MSgt. Romero, Sgt.
Manlulu, Sgt. Torato, Mrs. Bagasbas and Capt. Baluyut. Capt. Baluyut was
subsequently dimissed as a member of the board of directors. 5
The second witness for the petitioner was Atty. Norbin Dimalanta. He
averred that he only gave advice regarding the legality of the possible
Page 53 of 71
dismissal of the petitioner based on the evidence the committee gathered.
He was present when the evidence and witnesses were presented. Proper
notices were sent to the accused. The chairman of the committee,
Leonardo Tolentino, concluded that the initials on the withdrawal slips
were similar to the petitioner's initials. He did not suggest the consultation
of a handwriting expert on forgery since there were other pieces of
evidence showing that the petitioner figured in the anomaly because
several witnesses identified the figures appearing in the original copy of
the questioned receipt as written by the petitioner. His conclusion that no
one else could have done it except for Mrs. Roque was arrived at only after
the investigation of the records and documents presented to the
committee.6
The RTC found the petitioner guilty beyond reasonable doubt of the crime
charged, on the following grounds:
After a careful evaluation of the evidence presented by both sides, the
Court finds that the prosecution has proved the guilt of the accused
beyond reasonable doubt. This finding is supported by the categorical
testimony of prosecution witness Reynaldo Manlulu who testified that on
November 17, 1989 accused received from him a beginning cash in the
amount of P355,984.53 which is shown in a Teller's Daily Report (Exh. D)
prepared by the accused and signed by the accused in his presence ( TSN,
March 25, 1993, page 3). At the close of business day of November 17,
1989 the accused also prepared an Abstract of Payment (Exh. E) and she
signed it in his presence (Id., page 6). Aside from the beginning cash he
also turned over to the accused the transactions that took place after 3:00
o'clock of the preceding day particularly the withdrawal slip of M/Sgt.
Salazar (Id., page 4) so that it can be entered on the records on that very
date as bank regulation requires that transactions occurring after 3:00
o'clock of a particular day are recorded the following day. This explains
why although the questionable withdrawal slip was dated November 16,
1989 it was stamped paid on November 17, 1989, for record purposes.
Since it was the accused who gave Reynaldo Manlulu the withdrawal slip
dated November 16, 1989 the presumption is that, being in possession of
said withdrawal slip before its delivery to Reynaldo Manlulu, the accused
is the one who prepared the said withdrawal slip. This particular
transaction was turned over to him by the accused the previous day (Id.,
page 5).
The Teller's Daily Report dated November 17, 1989 reflects, among
others, a total withdrawal on that date in the amount of P16,300.00. This
amount is the totality of withdrawal after adding the seven (7) legitimate
withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and the
questionable withdrawal of P10,000.00 (Exh. C). On the other hand, the
Abstract of Payment (Exh. E) reflects, among others, a savings withdrawal
of P16,300.00 which tallies with the Teller's Daily Report of that date and
with the seven (7) withdrawal slips.
The defense interposed by the accused is one of denial. She claimed that
all the initials in the withdrawal slip of P10,000.00 (Exh. C), on the Teller's
Daily Report (Exh. D), in the Abstract of Payment (Exh. E) as well as on the
list of names of depositors (Exh. G) are not hers, implying, therefore, that
these documents were prepared by somebody else. To emphasize that the
initials on Exhibits C, D, E, and G are not hers, accused during the hearing
on March 18, 1993 wrote six (6) of her initials in a piece of paper (Exh.
"1"). However, the Court is not in a position to state whether the initial in
Exhibit 1 is the same or different from the initials in Exhibits C, D, E, and G
not being an expert along that line. Accused could have very well availed
of court processes to request the NBI or PNP Crime Laboratory to
determine whether or not the initials in Exhibits C, D, E, and G are hers by
comparing the same with similar documents on file with the BABSLA
which are abundant as said documents are prepared daily and accused
was, prior to her dismissal, the only teller of BABSLA for over a year and
has therefore accomplished a lot of these documents. Unfortunately,
accused did not make any attempt to do so. At any rate, denial cannot
prevail over the affirmative and categorical testimony of Reynaldo
Manlulu who stated that accused turned over to him the questionable
withdrawal slip on November 16, 1989 and it was in turn returned to the
accused by said witness the following day November 17, 1989 in order
that said transaction may be reflected on the records on that date. Said
witness also positively testified that the accused initialed in his presence
the Teller's Daily Report and the Abstract of Payment which said accused
prepared on November 17, 1989. Denial is a self-serving negative
evidence that cannot be given greater weight than the declaration of
credible witnesses who testified on affirmative matters (People vs. Carizo,
233 SCRA 687). Like alibi, denial is inherently a weak defense and cannot
prevail over the positive and credible testimony of the prosecution
witnesses (People vs. Macagaleng, 237 SCRA 299).
Accused after denying that the initials over the typewritten name A. G.
Roque found in several exhibits introduced by the prosecution are not
hers concentrated [on] her defense that Rosalina de Lazo, another
prosecution witness, and the General manager of BABSLA was the author
of the anomaly being imputed against her because said witness has
committed certain anomalous transactions at the BABSLA in the past.
Accused, however, never mentioned a word about the testimony of
Reynaldo Manlulu which actually proved her undoing. She failed to
controvert nor even comment on the damaging testimony of Reynaldo
Manlulu that she turned over to him the questionable withdrawal slip and
signed and/or placed her initial on the Teller's Daily Report and Abstract
of Payment in his presence. Accused did not present any evidence that
Reynaldo Manlulu had ulterior motives to testify falsely against her. When
there is no evidence indicating that the principal witness for the
prosecution was moved by improper motive, the presumption is that he
was not so moved, and his testimony is entitled to full faith and credit.
(People vs. Perciano, 233 SCRA 393). Accused also failed to controvert the
testimony of Rosalina de Lazo that accused confessed before Col.
Dunilayan, the president of BABSLA that she took money from some
depositors which she promised to return and in fact wrote down the
names of said depositors before Col. Dunilayan in a piece of paper which
she handed to him. This fact and [it being] taken in the light that she failed
to appear for investigation after the anomaly was discovered despite due
notice, and her lack of interest to pursue a case she filed before the
Department of Labor which caused its dismissal, do not speak well of her
claim of innocence.
Art. 309, paragraph 2 of the Revised Penal Code provides that the penalty
for theft is prision correccional in its medium and maximum periods if the
value property stolen is more than P6,000.00 but does not exceed
P12,000.00 and since the accused is charged for qualified theft, and the
property or money stolen is P10,000.00, under Art. 310 the penalty
prescribed for this crime is increased two (2) degrees higher, the basis of
which is Art. 309, paragraph 2. Therefore the corresponding penalty is
prision mayor maximum to reclusion temporal minimum. However, as the
accused is qualified [under] the indeterminate sentence law, the
prescribed penalty for her in this case is prision mayor as minimum to
reclusion temporal as maximum.
WHEREFORE, judgment is rendered finding the accused guilty beyond
reasonable doubt of the crime of qualified theft as charged and she is
hereby sentenced to suffer the penalty of 6 years and 1 day of prision
mayor as minimum to 12 years, 2 months and 1 day of reclusion temporal
as maximum, and to indemnify the offended party Basa Air Base Savings
& Loan Association Inc. in the amount of P10,000.00, and to pay the costs.
SO ORDERED.7
On appeal, the appellate court found the conviction in accord with law and
the evidence and affirmed the decision of the RTC in toto. The Court of
Appeals, quoting at length the lower court, reasoned, thus:
The Court fully agrees with the court a quo in finding that appellant's guilt
has been proven beyond reasonable doubt. As aptly pointed out by the
lower court:
This finding is supported by the categorical testimony of prosecution
witness Reynaldo Manlulu who testified that on November 17, 1989
accused received from him a beginning cash in the amount of P355,984.53
Page 54 of 71
which is shown in a Teller's Daily Report (Exh. D) prepared by the accused
and signed by the accused in his presence (TSN, March 25, 1993, page 30).
At the close of business day of November 17, 1989 the accused also
prepared an Abstract of Payment (Exh. E) and signed it in his presence (Id.,
page 6). Aside from the beginning cash he also turned over to the accused
the transaction that took place after 3:00 o'clock of the preceding day
particularly the withdrawal slip of M/Sgt. Salazar (Id., page 4) so that it
can be entered on the records on that very date as bank regulation
required that transaction occurring after 3:00 o'clock of a particular day
are recorded the following day. This explains why although the
questionable withdrawal slip was dated November 16, 1989 it was
stamped paid on November 17, 1989 for record purposes. Since it was the
accused who gave Reynaldo Manlulu the withdrawal slip dated November
16, 1989 the presumption is that being in possession of said withdrawal
slip before its delivery to Reynaldo Manlulu the accused is the one who
prepared the said withdrawal slip. This particular transaction was tuned
over to him by the accused the previous day (Id., page 5).
The Teller's Daily Report dated November 17, 1989 reflects among others
a total withdrawal on that date in the amount of P16,300.00. This amount
is the totality of withdrawal after adding the seven (7) legitimate
withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and the
questionable withdrawal of P10,000.00 (Exh. C). On the other hand the
Abstract of Payment (Exh. E) reflects among others a savings withdrawal
of P16,300.00 which tallies with the Teller's Daily Report of that date and
with the seven (7) withdrawal slips.
Appellant's defense is one of denial. She claims that the initials in the
withdrawal slip of P10,000.00 (Exh. C) the Teller's Daily Report (Exh. D)
the Abstract of Payment (Exh. E) and list of names of depositors (Exh. G)
are not hers thus implying that these documents were prepared by
somebody else. To bolster her claim she wrote her initials six (6) times on
a piece of paper during the hearing on March 18, 1993 (Exh. 2) probably
for comparison purposes. Admittedly there are noticeable differences
between her initials in Exhibit 2 and those appearing on Exhibits C to G.
This is of course understandable. It was not difficult for appellant to feign
her initials in Exhibit 2 in order to mislead the Court.
At any rate no less than Rosalina de Lazo who as general manager of
BABSLA is familiar with the initials has positively identified the initials on
Exhibits C to G as hers. Likewise, Reynaldo Manlulu categorically stated
not only that the questionable withdrawal slip (Exh. C) was turned over to
him by appellant on November 16, 1989 and returned to her on November
17, 1989 but also that the Teller's Daily Report (Exh. D) and the Abstract
of Payment (Exh. E) were initialed by her in his presence. Needless to say
the initials in Exhibits C, D, and E bear such similarities as would lead to
the conclusion that they were prepared by one and the same person.
Hence, a more worthy and reliable evidence than the mere samples of her
initials written during the trial is required to controvert the positive
testimonies of Rosalina de Lazo and Reynaldo Manlulu.
No cogent reason has been shown for this court not to give credence to the
prosecution witnesses. As aptly observed by the court a quo:
Accused after denying that the initials over the typewritten name A.G.
Roque found in several exhibits introduced by the prosecution are not
hers concentrated [on] her defense that Rosalina de Lazo another
prosecution witness and the General Manager of BABSLA was the author
of the anomaly being imputed against her because said witness has
committed certain anomalous transactions at the BABSLA in the past.
Accused however, never mentioned a word about the testimony of
Reynaldo Manlulu which actually proved her undoing. She failed to
controvert nor even comment on the damaging testimony of Reynaldo
Manlulu that she turned over to him the questionable withdrawal slip and
signed and/or placed her initial on the Teller's Daily Report and Abstract
of Payment in his presence. Accused did not present any evidence that
Reynaldo Manlulu had ulterior motives to testify falsely against her. When
there is no evidence indicating that the principal witness for the
prosecution was moved by improper motive the presumption is that he
was not so moved and his testimony is entitled to full faith and credit.
(People vs. Perciano 233 SCRA 393). Accused also failed to controvert the
testimony of Rosalina de Lazo that the accused confessed before Col.
Dunilayan the president of BABSLA that she took money from some
depositors which she promised to return and in fact wrote down the
names of said depositors before Col. Dunilayan in a piece of paper which
she handed to him. This fact and [it being] taken in the light that she failed
to appear for investigation after the anomaly was discovered despite due
notice, and her lack of interest to pursue a case she filed before the
Department of Labor which caused its dismissal, do not speak well of her
claim of innocence.
In sum, the Court finds appellant's conviction of the offense charged in
accord with law and evidence.8
Petitioner now raises the following issues:
I Under Article 308 of the Revised Penal Code, the following are the
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT THROUGH FALSIFICATION OF BANK
DOCUMENTS?
II
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT BECAUSE OF THE WEAKNESS OF THE
DEFENSE OFFERED BY PETITIONER AND NOT ON THE STRENGTH OF
THE EVIDENCE OF THE PROSECUTION?
III
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT IN THE ABSENCE OF ANY EVIDENCE
WHETHER TESTIMONIAL OR DOCUMENTARY TO THE EFFECT THAT
PETITIONER WAS SEEN OR CAUGHT IN THE ACT OF TAKING OR
CARRYING AWAY THE SUM OF P10,000.00?
IV
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT WHEN THE AMOUNT OF P10,000.00
WHICH CONSTITUTES THE CORPUS DELICTI OR BODY OF THE CRIME
WAS NEVER OFFERED IN EVIDENCE BY THE PROSECUTION?
V silver coins. Accused appropriated the bar of gold and bank notes. This
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT WHEN THE PROSECUTION FAILED TO
PROVE BEYOND REASONABLE DOUBT THE FACT OF LOSS OF THE
AMOUNT OF P10,000.00 IN THE ABSENCE OF ANY AUDIT BY AN
INDEPENDENT AUDITOR?9
Said issues may be summed up into two:
1. Whether or not qualified theft may be committed when the personal
property is in the lawful possession of the accused prior to the commission
of the alleged felony?
2. Whether or not the elements of qualified theft were proven?
Page 55 of 71
First Issue
Petitioner contends:
Theft as defined in Article 308 of the Revised Penal Code requires physical
taking of another's property without violence or intimidation against
persons or force upon things.
The crime of theft is akin to the crime of robbery. The only difference is in
robbery there is force upon things or violence or intimidation against
persons in taking of personal properties. In the crime of theft the taking of
the personal property with intent to gain is without violence against or
intimidation of persons nor force upon things and the taking shall be
without the consent of the owner. In robbery, the taking is against the will
of the owner.
elements of the crime of theft:
1. Intent to gain;
2. Unlawful taking;
3. Personal property belonging to another;
4. Absence of violence or intimidation against persons or force upon
things.
The foregoing requirements presume that the personal property is in the
possession of another, unlike estafa, [where] the possession of the thing is
already in the hands of the offender. In People vs. Lacson, 57 Phil. 325, it
was held:
"Commentators on the Spanish Penal Code lay great stress on the taking
away, that is, getting possession in theft, laying hold of the thing, so that if
the thing is not taken away, but received and then appropriated or
converted, without consent of the owner, it may be any other crime, that
of estafa for instance."
Can a person tasked to receive and collect capital contributions and having
collected and received in her capacity as teller as alleged in the
information, be guilty of theft? The question should be answered in the
negative. xxx10
Petitioner's argument contradicts jurisprudence. In U.S. v. De Vera, 11 the
accused, Nieves de Vera, received from Pepe, an Igorot, a bar of gold
weighing 559.7 grams for the purpose of having a silversmith examine the
same, and bank notes amounting to P200 to have them exchanged for
Court, citing Spanish and U.S. jurisprudence, ruled that the crime
committed was theft and not estafa since the delivery of the personal
property did not have the effect of transferring the juridical possession,
thus such possession remained in the owner; and the act of disposal with
gainful intent and lack of owner's consent constituted the crime of theft.
The principle enunciated in U.S. v. De Vera was reiterated in People v.
Trinidad,12 thus:
The defendant received a finger ring from the offended party for the
purpose of pledging it as security for a loan of P5 for the benefit of said
offended party. Instead of pledging the ring, the defendant immediately
carried it to one of her neighbors to whom she sold it for P30 and
appropriated the money to her own use.
xxx
The defendant is undoubtedly guilty of having sold the ring without
authority and the only question which presents some difficulty is to
determine whether the crime committed was theft or whether it should
be classified as estafa. The question is discussed at length in the case of
United States vs. De Vera (43 Phil., 1000) in which the court, citing various
authorities, held that "When the delivery of a chattel or cattle has not the
effect of transferring the juridical possession thereof, or title thereto, it is
presumed that the possession of, and title to, the thing so delivered
remains in the owner; and the act of disposing thereof with intent of gain
and without the consent of the owner constitutes the crime of theft." This
view seems to be supported both by Spanish and American authorities.
xxx
Though the facts in the present case differs somewhat from those in the
De Vera case, the underlying principle is the same in both cases: the
juridical possession of the thing appropriated did not pass to the
perpetrators of the crime, but remained in the owners; they were agents
or servants of the owners and not bailees of the property. (See 17 R. C. L.,
43, par. 49.) But it has been suggested that one of the essential elements
of the crime of theft is that the intent to misappropriate the property taken
must exist at the time of the asportation and that while this element
clearly existed in the De Vera case, it is not as apparent in the case at bar.
We may agree that in cases such as the present the crime committed
should not be regarded as theft unless the circumstances are such that it
must be presumed that the intent to convert or misappropriate the
property existed at the time it was received by the perpetrator of the
crime. But the existence of such intent is, in our opinion, fully as apparent
in this case as it was in the De Vera case; the defendant, according to her
own statement, offered the ring for sale immediately after its delivery to
her, and we are forced to conclude that she did not receive it with honest
intentions, but had the disposal of it in mind at the time.
In the case of People v. Locson13 which also deals with money of a bank in
the possession of its teller, the Court articulated:
Although the question is not specifically raised in the assignments of error,
the court has carefully considered the classification of the crime
committed by the defendant and found it to be correctly classified by the
trial court as qualified theft. The money was in the possession of the
defendant as receiving teller of the bank, and the possession of the
defendant was the possession of the bank. When the defendant, with a
grave abuse of confidence, removed the money and appropriated it to his
own use without the consent of the bank, there was the taking or
apoderamiento contemplated in the definition of the crime of theft.
In the case of the United States vs. De Vera (43 Phil., 1000, 1003), Justice
Villamor speaking for the court said:
"The argument advanced in support of the contention of the defense is
that the goods misappropriated were not taken by the accused without
the consent of the owner who had delivered them to her voluntarily, and
this element being lacking, it cannot be the crime of theft.
"It is well to remember the essential elements of the crime of theft, as
expounded in the textbooks, which are as follows: First, the taking of
personal property; second, that the property belongs to another; third,
that the taking away be done with intent of gain; fourth, that the taking
away be done without the consent of the owner; and fifth, that the taking
away be accomplished without violence or intimidation against persons
or force upon things.
"The commentators on the Spanish Penal Code, from which ours was
adopted, lay great stress on the first element, which is the taking away,
that is, getting possession, laying hold of the thing, so that, as Viada says,
if the thing is not taken away, but received and then appropriated or
converted without the consent of the owner, it may be any other crime,
Page 56 of 71
that of estafa for instance, but in no way that of theft, which consists in the
taking away of the thing, that is, in removing it from the place where it is
kept by the legal owner, without the latter's consent, that is, without
obtaining for the purpose the consent of the legitimate owner."
The doctrine of the case as stated in the syllabus is as follows:
"When the delivery of a chattel or cattle has not the effect of transferring
the juridical possession thereof, or title thereto, it is presumed that the
possession of, and title to, the thing so delivered remains in the owner;
and the act of disposing thereof with intent of gain and without the
consent of the owner constitutes the crime of theft."
The Supreme Court of Spain in a decision of June 23, 1886 held that a
shepherd, who takes away and converts to his own use several head of the
sheep under his care, is guilty of qualified theft. (Viada: Vol. 3, p. 433, 4th
ed.)
In the case of People v. Isaac,14 which involved a temporary driver of a
public service vehicle, this Court pronounced:
In the case of U. S. vs. De Vera (43 Phil., 1000), this Court said that when
the delivery of a chattel has not the effect of transferring the juridical
possession thereof, or title thereto, it is presumed that the possession of,
and title to, the thing so delivered remains in the owner; and the act of
disposing thereof with intent of gain and without the consent of the owner
constitutes the crime of theft. This, we think, is actually the case here. For
as we see it, appellant had only substituted for the regular driver of a
vehicle devoted to the transportation of passengers for a fare or
compensation and therefore operated as a public utility; and while his
arrangement with the owner was to turn in, not all the fare collected, but
only a fixed sum known in the trade as "boundary", still he cannot be
legally considered a hirer or lessee, since it is ordained in section 26 of the
Rules of Regulations of the Public Service Commission that "no motor
vehicle operator shall enter into any kind of contract with any person if by
the terms thereof it allows the use and operation of all or any of his
equipment under a fixed rental basis." In the eye of the law then, appellant
was not a lessee but only an employee or agent of the owner, so that his
possession of the vehicle was only an extension of that of the latter. In
other words, while he had physical or material possession of the jeepney,
the juridical possession thereof remained in the owner. Under those
circumstances his disposing of the jeepney with intent of gain and without
the consent of its owner makes him guilty of theft.
Quoting from Ruling Case Law, this Court has also said in the same case:
"A felonious taking is necessary in the crime of larceny, and generally
speaking, a taking which is done with the consent or acquiescence of the
owner of the property is not felonious. But if the owner parts with the
possession thereof for a particular purpose, and the person who receives
the possession avowedly for that purpose has the fraudulent intention to
make use of it as the means of converting it to his own use and does so
convert it, this is larceny, for in such case, the fraud supplies the place of
the trespass in the taking, or, as otherwise stated, the subsequent
felonious conversion of the property by the alleged thief will relate back
and make the taking and conversion larceny."
Under this theory, appellant, who, according to his own confession, took
the vehicle from its owner already with the intention of appropriating it,
should also be deemed guilty of theft. (People vs. Trinidad, 50 Phil., 65.)
In the present case, what is involved is the possession of money in the
capacity of a bank teller. In People v. Locson, 15 cited above, this Court
considered deposits received by a teller in behalf of a bank as being only
in the material possession of the teller. This interpretation applies with
equal force to money received by a bank teller at the beginning of a
business day for the purpose of servicing withdrawals. Such is only
material possession. Juridical possession remains with the bank. In line
with the reasoning of the Court in the above-cited cases, beginning with
People v. De Vera, if the teller appropriates the money for personal gain
then the felony committed is theft and not estafa. Further, since the teller
occupies a position of confidence, and the bank places money in the teller's
possession due to the confidence reposed on the teller, the felony of
qualified theft would be committed.
Second Issue
The elements of qualified theft include the elements of theft and any of the
circumstances enumerated in Article 310 of the Revised Penal
Code16 (RPC). The elements of theft, which is defined in Artilce 308 of the
RPC,17 are the following:
xxx there are five essential elements which constitute the crime of theft,
namely: (1) Taking of personal property; (2) that said property belongs to
another; (3) that said taking be done with intent to gain; (4) that, further,
it be done without the owner's consent; and (5) finally, that it be
accomplished without the use of violence or intimidation against persons,
nor of force upon things.18
The specific qualifying circumstance in Article 310 of the RPC which the
information indicated was that the felony was committed with grave
abuse of confidence. Hence, to warrant a conviction, the prosecution
should have proven the following elements:
1. Taking of personal property.
2. That the said property belongs to another.
3. That the said taking be done with intent to gain.
4. That it be done without the owner's consent.
5. That it be accomplished without the use of violence or intimidation
against persons, nor of force upon things.
6. That it be done with grave abuse of confidence.
Regarding the first element, the taking of personal property, the
prosecution was not able to present direct evidence that petitioner took
the P10,000 on November 16, 1989. The prosecution attempted to prove
the taking through circumstantial evidence. One of the pieces of evidence
that the prosecution adduced and the trial court and Court of Appeals
relied on heavily for the conviction was the withdrawal slip for P10,000,
dated November 16, 1989. Antonio Salazar disowned the signature on the
withdrawal slip. However, he also indicated that he did not know who
made the withdrawal. Rosalina de Lazo testified that the initial on the
withdrawal slip, written after the figure 11-17-89, was the customary
signature of petitioner. She, however, did not intimate the significance of
petitioner's initial on the withdrawal slip. A careful inspection of all the
withdrawal slips,19 including the withdrawal slip stated above, shows that
the date and the initial of petitioner were written across the stamped word
"paid." This indicates that petitioner's initial was placed in her capacity as
a teller which, therefore, only proves that this transaction passed through
her hands in such capacity. It does not in any manner show that petitioner
prepared the withdrawal slip or that the proceeds of the withdrawal
increased her patrimony.
The trial court articulated and the Court of Appeals quoted in toto the
following:
Since it was the accused who gave Reynaldo Manlulu the withdrawal slip
dated November 16, 1989 the presumption is that, being in possession of
said withdrawal slip before its delivery to Reynaldo Manlulu, the accused
Page 57 of 71
is the one who prepared the said withdrawal slip. This particular
transaction was turned over to him by the accused the previous day 20
This presumption is without basis in law. Under the rules of evidence,
there is a fixed number of presumptions. These are contained in Sections
2 and 3 of Rule 131, of the Revised Rules of Court. Courts of law should not
be too ready to generate other presumptions. After a thorough review of
all the presumptions enumerated in Sections 2 and 3 of Rule 131, the
presumption that comes closest to the one the RTC and Court of Appeals
relied on is paragraph (j), Section 3 of Rule 131, which reads:
That a person found in possession of a thing taken in the doing of a recent
wrongful act is the taker and the doer of the whole act; otherwise, that
things which a person possesses, or exercises acts of ownership over, are
owned by him;
In a long line of cases,21 this Court has always applied this presumption to
a situation where property has been stolen and the stolen property is
found in the possession of the accused. In these cases the possession of the
accused gives rise to the presumption that the accused is the taker of the
stolen property. In the presumption availed of by the lower courts the
property found in the possession of the accused, which is the withdrawal
slip, is not stolen property. Furthermore, the presumption the lower court
made was not that the petitioner stole anything, but rather that the
petitioner was the maker of the withdrawal slip. It is plain that the
presumption used by the lower court and the one found in paragraph (j),
Section 3 of Rule 131 are different. Consequently, there is no basis for the
finding that the withdrawal slip was prepared by the petitioner.
Another piece of evidence offered to prove petitioner's taking is her
extrajudicial confession to de Lazo and Col. Dunilayan wherein she
allegedly admitted taking money from the accounts of several members of
the BABSLA and the list of people from whose accounts she took money,
which list petitioner supposedly prepared in the presence of de Lazo and
Col. Dunilayan. In the testimony of Rosalina de Lazo, all she mentioned
was that petitioner confessed to having taken sums of money from the
accounts of several depositors, including the account of Sgt. Salazar.
Nowhere in her testimony did she mention that petitioner confessed the
exact date on which she took the money, nor the amount she took from
the account of Sgt. Salazar. It cannot be deduced from the alleged verbal
confession of petitioner that she was confessing a specific taking of
P10,000 from the account of Sgt. Salazar on November 16, 1989. She also
saw petitioner prepare the list of depositors from whose accounts she had
taken some money. Again, a perusal of the handwritten list allegedly
prepared by petitioner does not disclose any relation to the specific taking
alleged in the information. All that was written on the list, among other
names and figures, was the name Salazar, Antonio and the number fifteen
(15) to the right of the name. It must be kept in mind that the information
was for a theft of P10,000 that occurred on the 16th of November 1989.
The list does not mention the date on which the money was taken. Neither
does it disclose the precise amount that was taken.
The other pieces of evidence such as the Teller's Daily Report and Abstract
of Payment, to which witnesses de Lazo and Salazar both testified as
containing the customary initials of petitioner, only corroborate the
withdrawal slip. They merely reveal that on the 16th of November 1989,
a withdrawal was made on the account of Sgt. Antonio Salazar and that
this withdrawal passed through the hands of petitioner in her capacity as
a teller of the BABSLA. Again, they prove neither that petitioner prepared
the subject withdrawal slip nor that she took the P10,000 on that date.
From the foregoing discussion it is plain that the prosecution failed to
prove by direct or sufficient circumstantial evidence that there was a
taking of personal property by petitioner.
A discussion of the other elements of qualified theft mentioned above is
not necessary. Even if the other elements were satisfactorily proven, the
first and most basic element of qualified theft was not established. The
prosecution was, therefore, unsuccessful in proving beyond reasonable
doubt that the petitioner committed the crime of qualified theft.
WHEREFORE, the petition is GRANTED and the decision and resolution of
the Court of Appeals dated December 28, 1998 and May 26, 1999,
respectively, are REVERSED and SET ASIDE. Petitioner, Asuncion Galang
Roque, is ACQUITTED of the crime of qualified theft charged in the
information. No costs.
SO ORDERED.
G. R. No. 148233 June 8, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
LUISITO D. BUSTINERA, appellant.
DECISION
CARPIO MORALES, J.:
From the decision1 of the Regional Trial Court, Branch 217, Quezon City
finding appellant Luisito D. Bustinera guilty beyond reasonable doubt of
qualified theft2 for the unlawful taking of a Daewoo Racer GTE Taxi and
sentencing him to suffer the penalty of reclusion perpetua, he comes to
this Court on appeal.
In an information3 dated June 17, 1997, appellant was indicted as follows:
The undersigned accuses LUISITO D. BUSTINERA of the crime of Qualified
Theft, committed as follows:
That on or about the 25th day of December up to the 9th day of January,
1997, in Quezon City, Philippines, the said accused being then employed
as one [of] the taxi Drivers of Elias S. Cipriano, an Operator of several taxi
cabs with business address at corner 44 Commonwealth Avenue, iliman
(sic), this City, and as such has free access to the taxi he being driven, did
then and there willfully, unlawfully and feloniously with intent to gain,
with grave abuse of confidence reposed upon him by his employer and
without the knowledge and consent of the owner thereof, take, steal and
carry away a Daewoo Racer GTE Taxi with Plate No. PWH-266 worth
₱303,000.00, Philippine Currency, belonging to Elias S. Cipriano, to the
damage and prejudice of the said offended party in the amount of
₱303,000.00.
CONTRARY TO LAW.
Upon arraignment4 on March 27, 2000, appellant, assisted by counsel de
oficio, entered a plea of not guilty. Thereafter, trial on the merits ensued.
From the evidence for the prosecution, the following version is
established.
Sometime in 1996, Edwin Cipriano (Cipriano), who manages ESC
Transport, the taxicab business of his father, hired appellant as a taxi
driver and assigned him to drive a Daewoo Racer with plate number PWH-
266. It was agreed that appellant would drive the taxi from 6:00 a.m. to
11:00 p.m, after which he would return it to ESC Transport’s garage and
remit the boundary fee in the amount of ₱780.00 per day. 5
On December 25, 1996, appellant admittedly reported for work and drove
the taxi, but he did not return it on the same day as he was supposed to.
Q: Now, Mr. Witness, on December 25, 1996, did you report for work?
Page 58 of 71
A: Yes, sir.
Q: Now, since you reported for work, what are your duties and
responsibilities as taxi driver of the taxi company?
A: That we have to bring back the taxi at night with the boundary.
Q: How much is your boundary?
A: ₱780.00, sir.
Q: On December 25, 1996, did you bring out any taxi?
A: Yes, sir.
Q: Now, when ever (sic) you bring out a taxi, what procedure [do] you
follow with that company?
A: That we have to bring back the taxi to the company and before we leave
we also sign something, sir.
Q: What is that something you mentioned?
A: On the record book and on the daily trip ticket, sir.
Q: You said that you have to return your taxi at the end of the day, what is
then the procedure reflect (sic) by your company when you return a taxi?
A: To remit the boundary and to sign the record book and daily trip ticket.
Q: So, when you return the taxi, you sign the record book?
A: Yes, sir.
Q: You mentioned that on December 25, 1996, you brought out a taxi?
A: Yes, sir.
Q: What kind of taxi?
A: Daewoo taxi, sir.
Q: Now did you return the taxi on December 25, 1996?
A: I was not able to bring back the taxi because I was short of my boundary,
sir.6
The following day, December 26, 1996, Cipriano went to appellant’s house
to ascertain why the taxi was not returned.7 Arriving at appellant’s house,
he did not find the taxi there, appellant’s wife telling him that her husband
had not yet arrived.8 Leaving nothing to chance, Cipriano went to the
Commonwealth Avenue police station and reported that his taxi was
missing.9
On January 9, 1997, appellant’s wife went to the garage of ESC Transport
and revealed that the taxi had been abandoned in Regalado Street, Lagro,
Quezon City.10 Cipriano lost no time in repairing to Regalado Street where
he recovered the taxi.11
Upon the other hand, while appellant does not deny that he did not return
the taxi on December 25, 1996 as he was short of the boundary fee, he
claims that he did not abandon the taxi but actually returned it on January
5, 1997;12and that on December 27, 1996, he gave the amount of
₱2,000.0013 to his wife whom he instructed to remit the same to Cipriano
as payment of the boundary fee14 and to tell the latter that he could not
return the taxi as he still had a balance thereof.15
Appellant, however, admits that his wife informed him that when she went
to the garage to remit the boundary fee on the very same day (December
27, 1996),16 Cipriano was already demanding the return of the taxi.17
Appellant maintains though that he returned the taxi on January 5, 1997
and signed the record book,18 which was company procedure, to show
that he indeed returned it and gave his employer ₱2,500.0019 as partial
payment for the boundary fee covering the period from December 25,
1996 to January 5, 1997.
Continuing, appellant claims that as he still had a balance in the boundary
fee, he left his driver’s license with Cipriano;20 that as he could not drive,
which was the only work he had ever known, without his driver’s license,
and with the obligation to pay the balance of the boundary fee still
lingering, his wife started working on February 18, 1997 as a stay-in maid
for Cipriano, with a monthly salary of ₱1,300.00, 21 until March 26, 1997
when Cipriano told her that she had worked off the balance of his
obligation;22 and that with his obligation extinguished, his driver’s license
was returned to him.23
Brushing aside appellant’s claim that he returned the taxi on January 5,
1997 and that he had in fact paid the total amount of ₱4,500.00, the trial
court found him guilty beyond reasonable doubt of qualified theft by
Decision of May 17, 2001, the dispositive portion of which is quoted
verbatim:
WHEREFORE, judgment is hereby rendered finding accused guilty beyond
reasonable doubt as charged, and he is accordingly sentenced to suffer the
penalty of Reclusion Perpetua and to pay the costs.
In the service of his sentence, accused is ordered credited with four-fifths
(4/5) of the preventive imprisonment undergone by him there being no
showing that he agreed in writing to abide by the same disciplinary rules
imposed upon convicted prisoners.
SO ORDERED.24 (Emphasis and italics in the original)
Hence, the present appeal anchored on the following assigned errors:
I.
THE COURT A QUO GRAVELY ERRED IN CONCLUDING WITHOUT
CONCRETE BASIS THAT THE ACCUSED-APPELLANT HAS INTENT TO
GAIN WHEN HE FAILED TO RETURN THE TAXI TO ITS GARAGE.
II.
THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED
THEFT.25
It is settled that an appeal in a criminal proceeding throws the whole case
open for review, and it becomes the duty of the appellate court to correct
such errors as may be found in the judgment even if they have not been
specifically assigned.26
Appellant was convicted of qualified theft under Article 310 of the Revised
Penal Code, as amended for the unlawful taking of a motor vehicle.
However, Article 310 has been modified, with respect to certain
vehicles,27 by Republic Act No. 6539, as amended, otherwise known as "AN
ACT PREVENTING AND PENALIZING CARNAPPING."
Page 59 of 71
When statutes are in pari materia28 or when they relate to the same
person or thing, or to the same class of persons or things, or cover the
same specific or particular subject matter,29 or have the same purpose or
object,30 the rule dictates that they should be construed together
– interpretare et concordare leges legibus, est optimus interpretandi
modus.31 Every statute must be so construed and harmonized with other
statutes as to form a uniform system of jurisprudence, 32 as this Court
explained in City of Naga v. Agna,33 viz:
. . . When statutes are in pari materia, the rule of statutory construction
dictates that they should be construed together. This is because
enactments of the same legislature on the same subject matter are
supposed to form part of one uniform system; that later statutes are
supplementary or complimentary to the earlier enactments and in the
passage of its acts the legislature is supposed to have in mind the existing
legislation on the same subject and to have enacted its new act with
reference thereto. Having thus in mind the previous statutes relating to
the same subject matter, whenever the legislature enacts a new law, it is
deemed to have enacted the new provision in accordance with the
legislative policy embodied in those prior statutes unless there is an
express repeal of the old and they all should be construed together. In
construing them the old statutes relating to the same subject matter
should be compared with the new provisions and if possible by
reasonable construction, both should be so construed that effect may
be given to every provision of each. However, when the new
provision and the old relating to the same subject cannot be
reconciled the former shall prevail as it is the latter expression of the
legislative will . . .34(Emphasis and underscoring supplied; citations
omitted)
The elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things. 35
Theft is qualified when any of the following circumstances is present: (1)
the theft is committed by a domestic servant; (2) the theft is committed
with grave abuse of confidence; (3) the property stolen is either a motor
vehicle, mail matter or large cattle; (4) the property stolen consists of
coconuts taken from the premises of a plantation; (5) the property stolen
is fish taken from a fishpond or fishery; and (6) the property was taken on
the occasion of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance.36
On the other hand, Section 2 of Republic Act No. 6539, as amended defines
"carnapping" as "the taking, with intent to gain, of a motor vehicle
belonging to another without the latter's consent, or by means of violence
against or intimidation of persons, or by using force upon things." The
elements of carnapping are thus: (1) the taking of a motor vehicle which
belongs to another; (2) the taking is without the consent of the owner or
by means of violence against or intimidation of persons or by using force
upon things; and (3) the taking is done with intent to gain. 37
Carnapping is essentially the robbery or theft of a motorized vehicle, 38 the
concept of unlawful taking in theft, robbery and carnapping being the
same.39
In the 2000 case of People v. Tan40 where the accused took a Mitsubishi
Gallant and in the later case of People v. Lobitania41 which involved the
taking of a Yamaha motorized tricycle, this Court held that the unlawful
taking of motor vehicles is now covered by the anti-carnapping law and
not by the provisions on qualified theft or robbery.
There is no arguing that the anti-carnapping law is a special law,
different from the crime of robbery and theft included in the Revised
Penal Code. It particularly addresses the taking, with intent to gain, of a
motor vehicle belonging to another without the latter's consent, or by
means of violence against or intimidation of persons, or by using force
upon things. But a careful comparison of this special law with the crimes
of robbery and theft readily reveals their common features and
characteristics, to wit: unlawful taking, intent to gain, and that personal
property belonging to another is taken without the latter's
consent. However, the anti-carnapping law particularly deals with
the theft and robbery of motor vehicles. Hence a motor vehicle is said
to have been carnapped when it has been taken, with intent to gain,
without the owner's consent, whether the taking was done with or
without the use of force upon things. Without the anti-carnapping law,
such unlawful taking of a motor vehicle would fall within the purview
of either theft or robbery which was certainly the case before the
enactment of said statute.42 (Emphasis and underscoring supplied;
citations omitted.)
It is to be noted, however, that while the anti-carnapping law penalizes the
unlawful taking of motor vehicles, it excepts from its coverage certain
vehicles such as roadrollers, trolleys, street-sweepers, sprinklers, lawn
mowers, amphibian trucks and cranes if not used on public highways,
vehicles which run only on rails and tracks, and tractors, trailers and
tractor engines of all kinds and used exclusively for agricultural purposes.
By implication, the theft or robbery of the foregoing vehicles would be
covered by Article 310 of the Revised Penal Code, as amended and the
provisions on robbery, respectively.43
From the foregoing, since appellant is being accused of the unlawful taking
of a Daewoo sedan, it is the anti-carnapping law and not the provisions of
qualified theft which would apply as the said motor vehicle does not fall
within the exceptions mentioned in the anti-carnapping law.
The designation in the information of the offense committed by appellant
as one for qualified theft notwithstanding, appellant may still be convicted
of the crime of carnapping. For while it is necessary that the statutory
designation be stated in the information, a mistake in the caption of an
indictment in designating the correct name of the offense is not a fatal
defect as it is not the designation that is controlling but the facts alleged in
the information which determines the real nature of the crime. 44
In the case at bar, the information alleges that appellant, with intent to
gain, took the taxi owned by Cipriano without the latter’s consent. 45 Thus,
the indictment alleges every element of the crime of carnapping, 46 and the
prosecution proved the same.
Appellant’s appeal is thus bereft of merit.
That appellant brought out the taxi on December 25, 1996 and did not
return it on the same day as he was supposed to is admitted. 47
Unlawful taking, or apoderamiento, is the taking of the motor vehicle
without the consent of the owner, or by means of violence against or
intimidation of persons, or by using force upon things; it is deemed
complete from the moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same. 48
While the nature of appellant’s possession of the taxi was initially lawful
as he was hired as a taxi driver and was entrusted possession thereof, his
act of not returning it to its owner, which is contrary to company practice
and against the owner’s consent transformed the character of the
possession into an unlawful one.49 Appellant himself admits that he was
aware that his possession of the taxi was no longer with Cipriano’s consent
as the latter was already demanding its return.
Q: Also you said that during your direct testimony that when you gave
your wife the ₱2,500.00, you also told her to go to the company to ask the
company for permission for you to use the taxi since you were then still
short of the boundary. Alright, after telling that to your wife and after
seeing your wife between December 27, 1996 and January 5, 1997, did you
Page 60 of 71
ask your wife what was the answer of the company to that request of
yours?
A: He did not allow me, sir, and he even [got] angry with me.
Q: So, when did you learn that the company was not agreeable to your
making use of the taxicab without first returning it to the company?
A: Before the new year, sir.
Q: When you said new year, you were referring to January 1, 1997?
A: Either December 29 or December 30, 1996, sir.
Q: So, are you telling us that even if you knew already that the company
was not agreeable to your making use of the taxicab continually (sic)
without returning the same to the company, you still went ahead and
make (sic) use of it and returned it only on January 5, 1997.
A: Yes, sir.50 (Emphasis and underscoring supplied)
Appellant assails the trial court’s conclusion that there was intent to gain
with the mere taking of the taxi without the owner’s consent. He maintains
that his reason for failing to return the taxi was his inability to remit the
boundary fee, his earnings that day not having permitted it; and that there
was no intent to gain since the taking of the taxi was not permanent in
character, he having returned it.
Appellant’s position does not persuade.
Intent to gain or animus lucrandi is an internal act, presumed from the
unlawful taking of the motor vehicle.51 Actual gain is irrelevant as the
important consideration is the intent to gain.52 The term "gain" is not
merely limited to pecuniary benefit but also includes the benefit which in
any other sense may be derived or expected from the act which is
performed.53 Thus, the mere use of the thing which was taken without the
owner’s consent constitutes gain.54
In Villacorta v. Insurance Commission55 which was reiterated
in Association of Baptists for World Evangelism, Inc. v. Fieldmen’s Insurance
Co, Inc.,56 Justice Claudio Teehankee (later Chief Justice), interpreting the
theft clause of an insurance policy, explained that, when one takes the
motor vehicle of another without the latter’s consent even if the motor
vehicle is later returned, there is theft, there being intent to gain as the
use of the thing unlawfully taken constitutes gain:
Assuming, despite the totally inadequate evidence, that the taking
was "temporary" and for a "joy ride", the Court sustains as the better
view57 that which holds that when a person, either with the object of going
to a certain place, or learning how to drive, or enjoying a free ride, takes
possession of a vehicle belonging to another, without the consent of its
owner, he is guilty of theft because by taking possession of the personal
property belonging to another and using it, his intent to gain is evident
since he derives therefrom utility, satisfaction, enjoyment and
pleasure. Justice Ramon C. Aquino cites in his work Groizard who
holds that the use of a thing constitutes gain and Cuello Calon who
calls it "hurt de uso."58 (Emphasis and underscoring supplied; citation
omitted)
Besides, the trial court did not believe appellant’s claim that he in fact
returned the taxi on January 5, 1997.
The Court can not (sic) believe accused’s assertion that he returned the
subject vehicle on January 5, 1997 to the garage and that he had in fact
paid the amount of ₱4,500.00 in partial payment of his unremitted
"boundary" for ten (10) days. He could not even be certain of the exact
amount he allegedly paid the taxicab owner. On direct-examination, he
claimed that he paid Edwin Cipriano on December 27, 1996 the amount of
₱2,000.00 and it was his wife who handed said amount to Cipriano, yet on
cross-examination, he claimed that he gave ₱2,500.00 to his wife on that
date for payment to the taxicab owner.59
The rule is well-entrenched that findings of fact of the trial court are
accorded the highest degree of respect and will not be disturbed on appeal
absent any clear showing that the trial court had overlooked,
misunderstood or misapplied some facts or circumstances of weight and
significance which, if considered, would alter the result of the case.60 The
reason for the rule being that trial courts have the distinct advantage of
having heard the witnesses themselves and observed their deportment
and manner of testifying or their conduct and behavior during the trial. 61
Other than his bare and self-serving allegations, appellant has not shown
any scintilla of evidence that he indeed returned the taxi on January 5,
1997.
Q: You said that you returned the taxi on January 5, 1997, correct?
A: Yes, sir.
Q: Now, Mr. Witness, did you sign any record when you returned the taxi?
A: Yes, sir.
Q: Do you have any copy of that record?
A: They were the one (sic) in-charge of the record book and I even
voluntarily left my driver’s license with them, sir.
Q: You said that you did not return the taxi because you were short of (sic)
boundary, did you turn over any money to your employer when you
returned the taxi?
A: I gave them [an] additional ₱2,500.00, sir.
Q: At the time when you returned the taxi, how much was your short
indebtedness (sic) or short boundary (sic)?
A: I was short for ten (10) days, and I was able to pay ₱4,500.00.
Q: Do you have any receipt to show receipt of payment for this
₱4,500.00?
A: They were the ones having the record of my payment, and our
agreement was that I have to pay the balance in
installment.62 (Emphasis supplied)
While appellant maintains that he signed on January 5, 1997 the record
book indicating that he returned the taxi on the said date and paid
Cipriano the amount of ₱4,500.00 as partial payment for the boundary fee,
appellant did not produce the documentary evidence alluded to, to
substantiate his claim. That such alleged record book is in the possession
of Cipriano did not prevent him from producing it as appellant has the
right to have compulsory process issued to secure the production of
evidence on his behalf.63
The trial court having convicted appellant of qualified theft instead of
carnapping, it erred in the imposition of the penalty. While the
information alleges that the crime was attended with grave abuse of
confidence, the same cannot be appreciated as the suppletory effect of the
Revised Penal Code to special laws, as provided in Article 10 of said Code,
Page 61 of 71
cannot be invoked when there is a legal impossibility of application, either
by express provision or by necessary implication. 64
Moreover, when the penalties under the special law are different from and
are without reference or relation to those under the Revised Penal Code,
there can be no suppletory effect of the rules, for the application of
penalties under the said Code or by other relevant statutory provisions
are based on or applicable only to said rules for felonies under the Code. 65
Thus, in People v. Panida66 which involved the crime of carnapping and the
penalty imposed was the indeterminate sentence of 14 years and 8
months, as minimum, to 17 years and 4 months, as maximum, this Court
did not apply the provisions of the Revised Penal Code suppletorily as the
anti-carnapping law provides for its own penalties which are distinct and
without reference to the said Code.
The charge being simple carnapping, the imposable penalty is
imprisonment for not less than 14 years and 8 months and not more than
17 years and 4 months. There can be no suppletory effect of the rules
for the application of penalties under the Revised Penal Code or by
other relevant statutory provisions based on, or applicable only to,
the rules for felonies under the Code. While it is true that the penalty
of 14 years and 8 months to 17 years and 4 months is virtually
equivalent to the duration of the medium period of reclusion
temporal, such technical term under the Revised Penal Code is not
given to that penalty for carnapping. Besides, the other penalties for
carnapping attended by the qualifying circumstances stated in the
law do not correspond to those in the Code. The rules on penalties in
the Code, therefore, cannot suppletorily apply to Republic Act No. 6539
and special laws of the same formulation. For this reason, we hold that the
proper penalty to be imposed on each of accused-appellants is an
indeterminate sentence of 14 years and 8 months, as minimum, to 17
years and 4 months, as maximum.67(Emphasis and underscoring supplied;
citations omitted)
Appellant being then culpable for carnapping under the first clause of
Section 14 of Republic Act No. 6539, as amended, the imposable penalty is
imprisonment for not less than 14 years and 8 months, not more than 17
years and 4 months,68 for, as discussed above, the provisions of the
Revised Penal Code cannot be applied suppletorily and, therefore, the
alleged aggravating circumstance of grave abuse of confidence cannot be
appreciated.
Applying Section 1 of Act No. 4103,69 as amended, otherwise known as the
Indeterminate Sentence Law, if the offense is punishable by a special law,
the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law
and the minimum term shall not be less than the minimum prescribed by
the same – the penalty imposed being a range.70
WHEREFORE, the judgment of the Regional Trial Court of Quezon City,
Branch 217, in Crim Case No. Q-97-71956, finding appellant Luisito
D. Bustinera guilty beyond reasonable doubt of qualified theft,
is REVERSED and SET ASIDE, and another judgment entered in its place,
finding him guilty beyond reasonable doubt of the crime of carnapping
under Republic Act No. 6539, as amended and sentencing him to an
indeterminate penalty of Fourteen (14) Years and Eight (8) Months, as
minimum, to Seventeen (17) Years and Four (4) Months, as maximum.
SO ORDERED.
ANTI-FENCING LAW
G.R. No. 190475 April 10, 2013
JAIME ONG y ONG, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, CJ.:
Before the Court is an appeal from the Decision 1 dated 18 August 2009 of
the Court of Appeals (CA), which affirmed the Decision2 dated 06 January
2006 of the Regional Trial Court (RTC), Branch 37, Manila. The RTC had
convicted accused Jaime Ong y Ong (Ong) of the crime of violation of
Presidential Decree No. (P.O.) 1612, otherwise known as. the Anti-Fencing
Law.
Ong was charged in an Information3 dated 25 May 1995 as follows:
That on or about February 17, 1995, in the City of Manila, Philippines. the
said accused, with intent of gain for himself or for another. did then and
there willfully, unlawfully and feloniously receive and acquire from
unknown person involving thirteen (13) truck tires worth ₱65, 975.00,
belonging to FRANCISCO AZAJAR Y LEE, and thereafter selling One (1)
truck tire knowing the same to have been derived from the crime of
robbery.
CONTRARY TO LAW.
Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits
ensued, and the RTC found him guilty beyond reasonable doubt of
violation of P.D. 1612. The dispositive portion of its Decision reads:
WHEREFORE, premises considered, this Court finds that the prosecution
has established the guilt of the accused JAIME ONG y ONG beyond
reasonable doubt for violation of Presidential Decree No. 1612 also known
as Anti-Fencing Law and is hereby sentenced to suffer the penalty of
imprisonment of 10 years and 1 day to 16 years with accessory penalty of
temporary disqualification.
SO ORDERED.4
Dissatisfied with the judgment, Ong appealed to the CA. After a review of
the records, the RTC’s finding of guilt was affirmed by the appellate court
in a Decision dated 18 August 2009.
Ong then filed the instant appeal before this Court.
The Facts
The version of the prosecution, which was supported by the CA, is as
follows:
Private complainant was the owner of forty-four (44) Firestone truck
tires, described as T494 1100 by 20 by 14. He acquired the same for the
total amount of ₱223,401.81 from Philtread Tire and Rubber Corporation,
a domestic corporation engaged in the manufacturing and marketing of
Firestone tires. Private complainant's acquisition was evidenced by Sales
Invoice No. 4565 dated November 10, 1994 and an Inventory List
acknowledging receipt of the tires specifically described by their serial
numbers. Private complainant marked the tires using a piece of chalk
before storing them inside the warehouse in 720 San Jose St., corner Sta.
Catalina St., Barangay San Antonio Valley 1, Sucat, Parañaque, owned by
his relative Teody Guano. Jose Cabal, Guano's caretaker of the warehouse,
was in charge of the tires. After appellant sold six (6) tires sometime in
January 1995, thirty-eight (38) tires remained inside the warehouse.
On February 17, 1995, private complainant learned from caretaker Jose
Cabal that all thirty-eight (38) truck tires were stolen from the warehouse,
the gate of which was forcibly opened. Private complainant, together with
caretaker Cabal, reported the robbery to the Southern Police District at
Fort Bonifacio.
Page 62 of 71
Pending the police investigation, private complainant canvassed from
numerous business establishments in an attempt to locate the stolen tires.
On February 24, 1995, private complainant chanced upon Jong's
Marketing, a store selling tires in Paco, Manila, owned and operated by
appellant. Private complainant inquired if appellant was selling any Model
T494 1100 by 20 by 14 ply Firestone tires, to which the latter replied in
the affirmative. Appellant brought out a tire fitting the description, which
private complainant recognized as one of the tires stolen from his
warehouse, based on the chalk marking and the serial number thereon.
Private complainant asked appellant if he had any more of such tires in
stock, which was again answered in the affirmative. Private complainant
then left the store and reported the matter to Chief Inspector Mariano
Fegarido of the Southern Police District.
On February 27, 1995, the Southern Police District formed a team to
conduct a buy-bust operation on appellant's store in Paco, Manila. The
team was composed of six (6) members, led by SPO3 Oscar Guerrero and
supervised by Senior Inspector Noel Tan. Private complainant's
companion Tito Atienza was appointed as the poseur-buyer.
On that same day of February 27, 1995, the buy-bust team, in coordination
with the Western Police District, proceeded to appellant's store in Paco,
Manila. The team arrived thereat at around 3:00 in the afternoon. Poseur-
buyer Tito Atienza proceeded to the store while the rest of the team
posted themselves across the street. Atienza asked appellant if he had any
T494 1100 by 20 by 14 Firestone truck tires available. The latter
immediately produced one tire from his display, which Atienza bought for
₱5,000.00. Atienza asked appellant if he had any more in stock.
Appellant then instructed his helpers to bring out twelve (12) more tires
from his warehouse, which was located beside his store. After the twelve
(12) truck tires were brought in, private complainant entered the store,
inspected them and found that they were the same tires which were stolen
from him, based on their serial numbers. Private complainant then gave
the prearranged signal to the buy-bust team confirming that the tires in
appellant's shop were the same tires stolen from the warehouse.
After seeing private complainant give the pre-arranged signal, the buy-
bust team went inside appellant's store. However, appellant insisted that
his arrest and the confiscation of the stolen truck tires be witnessed by
representatives from the barangay and his own lawyer. Resultantly, it was
already past 10:00 in the evening when appellant, together with the tires,
was brought to the police station for investigation and inventory. Overall,
the buy-bust team was able to confiscate thirteen (13) tires, including the
one initially bought by poseur-buyer Tito Atienza. The tires were
confirmed by private complainant as stolen from his warehouse.5
For his part, accused Ong solely testified in his defense, alleging that he
had been engaged in the business of buying and selling tires for twenty-
four (24) years and denying that he had any knowledge that he was selling
stolen tires in Jong Marketing. He further averred that on 18 February
1995, a certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck
tires allegedly from Dagat-dagatan, Caloocan City, for ₱3,500 each. Ong
bought all the tires for ₱45,500, for which he was issued a Sales Invoice
dated 18 February 1995 and with the letterhead Gold Link Hardware &
General Merchandise (Gold Link).6
Ong displayed one (1) of the tires in his store and kept all the twelve (12)
others in his bodega. The poseur-buyer bought the displayed tire in his
store and came back to ask for more tires. Ten minutes later, policemen
went inside the store, confiscated the tires, arrested Ong and told him that
those items were stolen tires.7
The RTC found that the prosecution had sufficiently established that all
thirteen (13) tires found in the possession of Ong constituted a prima facie
evidence of fencing. Having failed to overcome the presumption by mere
denials, he was found guilty beyond reasonable doubt of violation of P.D.
1612.8
On appeal, the CA affirmed the RTC’s findings with modification by
reducing the minimum penalty from ten (10) years and one (1) day to six
(6) years of prision correcional.9
OUR RULING
The Petition has no merit.
Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person
who, with intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or
in any manner deal in any article, item, object or anything of value which
he knows, or should be known to him, to have been derived from the
proceeds of the crime of robbery or theft."
The essential elements of the crime of fencing are as follows: (1) a crime
of robbery or theft has been committed; (2) the accused, who is not a
principal or on accomplice in the commission of the crime of robbery or
theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes,
or buys and sells, or in any manner deals in any article, item, object or
anything of value, which has been derived from the proceeds of the crime
of robbery or theft; (3) the accused knew or should have known that the
said article, item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft; and (4) there is, on the part of
one accused, intent to gain for oneself or for another.10
We agree with the RTC and the CA that the prosecution has met the
requisite quantum of evidence in proving that all the elements of fencing
are present in this case.
First, the owner of the tires, private complainant Francisco Azajar
(Azajar), whose testimony was corroborated by Jose Cabal - the caretaker
of the warehouse where the thirty-eight (38) tires were stolen – testified
that the crime of robbery had been committed on 17 February 1995.
Azajar was able to prove ownership of the tires through Sales Invoice No.
456511 dated 10 November 1994 and an Inventory List.12 Witnesses for
the prosecution likewise testified that robbery was reported as evidenced
by their Sinumpaang Salaysay13 taken at the Southern Police District at
Fort Bonifacio.14 The report led to the conduct of a buy-bust operation at
Jong Markerting, Paco, Manila on 27 February 1995.
Second, although there was no evidence to link Ong as the perpetrator of
the robbery, he never denied the fact that thirteen (13) tires of Azajar
were caught in his possession. The facts do not establish that Ong was
neither a principal nor an accomplice in the crime of robbery, but thirteen
(13) out of thirty-eight (38) missing tires were found in his possession.
This Court finds that the serial numbers of stolen tires corresponds to
those found in Ong’s possession.15 Ong likewise admitted that he bought
the said tires from Go of Gold Link in the total amount of ₱45,500 where
he was issued Sales Invoice No. 980.16
Third, the accused knew or should have known that the said article, item,
object or anything of value has been derived from the proceeds of the
crime of robbery or theft. The words "should know" denote the fact that a
person of reasonable prudence and intelligence would ascertain the fact
in performance of his duty to another or would govern his conduct upon
assumption that such fact exists.17 Ong, who was in the business of buy
and sell of tires for the past twenty-four (24) years,18 ought to have known
the ordinary course of business in purchasing from an unknown seller.
Admittedly, Go approached Ong and offered to sell the thirteen (13) tires
and he did not even ask for proof of ownership of the tires.19 The entire
transaction, from the proposal to buy until the delivery of tires happened
in just one day.20 His experience from the business should have given him
doubt as to the legitimate ownership of the tires considering that it was
his first time to transact with Go and the manner it was sold is as if Go was
just peddling the thirteen (13) tires in the streets.
In Dela Torre v. COMELEC,21 this Court had enunciated that:
Page 63 of 71
Circumstances normally exist to forewarn, for instance, a reasonably
vigilant buyer that the object of the sale may have been derived from the
proceeds of robbery or theft. Such circumstances include the time and
place of the sale, both of which may not be in accord with the usual
practices of commerce. The nature and condition of the goods sold, and
the fact that the seller is not regularly engaged in the business of selling
goods may likewise suggest the illegality of their source, and therefore
should caution the buyer. This justifies the presumption found in Section
5 of P.D. No. 1612 that "mere possession of any goods, . . ., object or
anything of value which has been the subject of robbery or thievery shall
be prima facie evidence of fencing" — a presumption that is, according to
the Court, "reasonable for no other natural or logical inference can arise
from the established fact of . . . possession of the proceeds of the crime of
robbery or theft." xxx.22
Moreover, Ong knew the requirement of the law in selling second hand
tires.1âwphi1 Section 6 of P.D. 1612 requires stores, establishments or
entities dealing in the buying and selling of any good, article, item, object
or anything else of value obtained from an unlicensed dealer or supplier
thereof to secure the necessary clearance or permit from the station
commander of the Integrated National Police in the town or city where
that store, establishment or entity is located before offering the item for
sale to the public. In fact, Ong has practiced the procedure of obtaining
clearances from the police station for some used tires he wanted to resell
but, in this particular transaction, he was remiss in his duty as a diligent
businessman who should have exercised prudence.
In his defense, Ong argued that he relied on the receipt issued to him by
Go.1âwphi1 Logically, and for all practical purposes, the issuance of a sales
invoice or receipt is proof of a legitimate transaction and may be raised as
a defense in the charge of fencing; however, that defense is disputable. 23 In
this case, the validity of the issuance of the receipt was disputed, and the
prosecution was able to prove that Gold Link and its address were
fictitious.24Ong failed to overcome the evidence presented by the
prosecution and to prove the legitimacy of the transaction. Thus, he was
unable to rebut the prima facie presumption under Section 5 of P.D. 1612.
Finally, there was evident intent to gain for himself, considering that
during the buy-bust operation, Ong was actually caught selling the stolen
tires in his store, Jong Marketing.
Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie
presumption of fencing from evidence of possession by the accused of any
good, article, item, object or anything of value, which has been the subject
of robbery or theft; and prescribes a higher penalty based on the value of
the 25 property.
The RTC and the CA correctly computed the imposable penalty based on
₱5,075 for each tire recovered, or in the total amount of ₱65,975. Records
show that Azajar had purchased forty-four (44) tires from Philtread in the
total amount of ₱223,40 1.81.26 Section 3 (p) of Rule 131 of the Revised
Rules of Court provides a disputable presumption that private
transactions have been fair and regular. Thus, the presumption of
regularity in the ordinary course of business is not overturned in the
absence of the evidence challenging the regularity of the transaction
between Azajar ,and Phil tread.
In tine, after a careful perusal of the records and the evidence adduced by
the parties, we do not find sufficient basis to reverse the ruling of the CA
affirming the trial court's conviction of Ong for violation of P.D. 1612 and
modifying the minimum penalty imposed by reducing it to six ( 6) years of
prision correccional.
WHEREFORE, premises considered, the Petition is DENIED for lack of
merit. Accordingly, the assailed Decision of the Court of Appeals in CA-G.R.
CR No. 30213 is hereby AFFIRMED.
SO ORDERED.
G.R. No. 146584 July 12, 2004
ERNESTO FRANCISCO y SPENOCILLA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is an appeal via a petition for review on certiorari of the Decision 1 of
the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision2 of the
Regional Trial Court of Malolos, Bulacan, Branch 22, finding petitioner
Ernesto Francisco guilty of violating Presidential Decree No. 1612,
otherwise known as the Anti-Fencing Law, sentencing him to suffer the
penalty of ten (10) years and one (1) day of prision mayor maximum, as
minimum, to twenty (20) years of reclusion temporal maximum, as
maximum, with the accessory penalties corresponding to the latter, and to
pay the corresponding value of the subject pieces of jewelry.
The Indictment
The petitioner was charged of violating P.D. No. 1612 under the
Information filed on June 23, 1993, the accusatory portion of which reads:
That in or about the month of November 1991, in the municipality of
Meycauayan, Province of Bulacan, Philippines, and within the jurisdiction
of this Honorable Court, the said accused Ernesto Francisco y Spenocilla,
with intent to gain for himself, did then and there wil[l]fully, unlawfully
and feloniously buy, receive, possess and acquire from one Pacita Linghon
y Liza, not the owner, several pieces of jewelry, to wit:
One (1) pair of earrings (Heart Shape)
One (1) White Gold Bracelet
One (1) Diamond Ring
One (1) Ring with Diamond
with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz,
which he knows, or should be known to him, to have been derived from
the proceeds of the crime of robbery or theft.
Contrary to law.3
The petitioner was arraigned, with the assistance of counsel, and entered
a plea of not guilty. Trial forthwith ensued.
The Case for the Prosecution
Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez,
Rizal.4 She was engaged in business as a general contractor under the
business name J.C. Rodriguez Contractors. Macario Linghon was one of her
workers. She and her husband, the former Municipal Mayor of Rodriguez,
Rizal, acquired several pieces of jewelry which were placed inside a locked
cabinet in a locked room in their main house. Jovita hid the key to the
cabinet inside the room. The couple and their son resided inside a
Page 64 of 71
compound. They hired Pacita Linghon, Macario’s sister, as one of their
household helpers us sometime in February 1989.5 Pacita swept and
cleaned the room periodically. Sometime in May 1991, she left the employ
of the Rodriguez family.
Sometime in the third week of October 1991, Pacita contacted her brother
Macario, who resided in Sitio Baloongan, Barangay Paltok, Meycauayan,
Bulacan,6 and asked him to sell some pieces of jewelry. She told Macario
that a friend of hers owned the jewelry.7 Macario agreed. He then went to
the shop of petitioner Ernesto "Erning" Francisco located at Pacheco
Street, Calvario, Meycauayan, Bulacan,8 which had a poster outside that
said, "We buy gold." Macario entered the shop, while Pacita stayed outside.
Macario offered to sell to Ernesto two rings and one bracelet. Ernesto
agreed to buy the jewelry for P25,000, and paid the amount to Macario. He
also gave Macario P300 as a tip.9
Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of
earrings. He agreed. He and a friend of his went to the shop of Ernesto and
offered to sell to Ernesto the pair of earrings for P18,000. The latter agreed
and paid Macario the amount. Ernesto gave a P200 tip to Macario. After
these transactions, Macario saw the petitioner in his shop for about five to
six more times and received some amounts. 11
Sometime in November 1991, Jovita was asked to be a principal sponsor
at a wedding. She was shocked when she opened the locked cabinet
containing her jewelry, and found that the box was empty. She noticed that
the lock to the cabinet was not broken. Among the pieces of jewelry
missing were one pair of diamond heart-shaped earrings worth P400,000;
one heart-shaped diamond ring worth P100,000; one white gold bracelet
with diamond stones worth P150,000; and one ring with a small diamond
stone worth P5,000. She suspected that it was Pacita who stole her
jewelry. She was, however, occupied with her business ventures that she
had little time to gather evidence and charge Pacita.
On August 19, 1992, Jovita filed a complaint for theft against Pacita and
her mother Adoracion Linghon with the Counter-Intelligence Group of the
Philippine National Police in Camp Crame, Quezon City. She stated that she
owned several jewels, viz: one (1) heart-shaped pair of earrings with
diamond worth P400,000; one (1) heart-shaped ring with diamond
worth P100,000; one (1) white gold bracelet with diamond stones
worth P150,000; and, one (1) ring with a small diamond stone
--- P5,000.
worth P 400,000.00
She also averred that Pacita had stolen the pieces of
jewelry, and that she and her mother Adoracion disposed of the same.
---- 150,000.00
A team of police investigators, including PO1 Santiago Roldan, Jr. of the
---- 100,000.00
Counter-Intelligence Group, invited Pacita and Adoracion to Camp Crame,
Quezon City, for investigation in connection with Jovita’s complaint. Pacita
----
arrived in 5,000.00
Camp Crame without counsel and gave a sworn statement
pointing to the petitioner as the person to whom she sold Jovita’s jewelry.
On August 23, 1992, Pacita gave a sworn statement to PO1 Roldan, Jr.,
admitting that she sold one pair of heart-shaped earrings with diamond,
one white gold bracelet, one heart-shaped diamond ring, and one ring
"with big and small stones" to "Mang Erning" of Meycauayan, Bulacan, for
the total price of P50,000 to cover the cost of her father’s operation and
for food. When asked about the full name of the person to whom the
jewelry was sold, Pacita replied that she knew him only as "Mang Erning."
Pacita accompanied a group of five police officers, which included SPO1
Dremio Peralta and PO1 Roldan, Jr. to the shop in Meycauayan, Bulacan.
Pacita pointed to the petitioner as the "Mang Erning" who had purchased
the jewelry from her. The policemen alighted from their vehicle and
invited the petitioner for questioning in Camp Crame. Upon his insistence,
the petitioner was brought to the police station of Meycauayan, Bulacan.
When they were at the police station, the petitioner, in the presence of
SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe, for
them not to implicate him in the case. PO1 Roldan, Jr. rejected the
offer.12 They again invited the petitioner to go with them to Camp Crame,
but the petitioner refused and demanded that the policemen first secure a
warrant for his arrest should they insist on taking him with them. 13
Nevertheless, Pacita was charged with qualified theft in the Regional Trial
Court of San Mateo, Rizal, Branch 76.14The case was docketed as Criminal
Case No. 2005. Adoracion was also charged with violating P.D. No. 1612
(Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were
consolidated and jointly tried.
Meanwhile, Jovita succeeded in convincing Macario to testify against the
petitioner, assuring him that he would not be prosecuted for violation of
P.D. No. 1612. Macario agreed to testify against the petitioner.
PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their
investigation.
On September 1, 1992, Jovita executed a sworn statement in the office of
the police station of Meycauayan, Bulacan, charging the petitioner of
buying stolen jewelry worth P655,000.15 A criminal complaint against the
petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial
Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841.
During the preliminary investigation, Pacita and Macario testified that
they sold a set of earrings, bracelet and two rings to the petitioner
for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she
found the jewelry belonging to Jovita while she was cleaning the room in
the house, and that she brought the jewelry home.16 The court found
probable cause against the petitioner, and issued a warrant for his arrest.
On June 23, 1993, an Information was filed by the Provincial Prosecutor
with the RTC charging the petitioner with violating P.D. No. 1612.
In the meantime, on August 20, 1993, judgment was rendered by the RTC
of San Mateo, Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005,
finding Pacita guilty of theft and Adoracion guilty of fencing under P.D. No.
1612, beyond reasonable doubt. The decretal portion of the decision
reads:
WHEREFORE, premises considered, judgment is hereby rendered in these
cases, as follows:
1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY
beyond reasonable doubt of the crime of theft, as defined and penalized
under Art. 308 in relation to Art. 309 of the Revised Penal Code, and
sentencing her to suffer the indeterminate sentence of Nine (9) years and
Four (4) months of prision mayor as minimum to Eighteen (18) years, Two
(2) months and Twenty (20) days of reclusion temporal as maximum, to
return to complainant Jovita Rodriguez the unrecovered stolen pieces of
jewelry subject of this case and if restitution is not possible, to indemnify
the said complainant in the amount of P1,300,000.00; and to pay the costs.
2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza
GUILTY beyond reasonable doubt of the offense of violation of PD 1612,
otherwise known as the Anti-Fencing Law, and sentencing her to suffer
imprisonment of Twelve (12) years of prision mayor; to indemnify
complainant Jovita Rodriguez in the amount of P45,000.00; and to pay the
costs.
SO ORDERED.17
The Case for the Petitioner
The petitioner testified that he was a resident of Calvario, Meycauayan,
Bulacan. He had a shop located at Pacheco Street, Calvario, Meycauayan,
Bulacan, where he bought and sold jewelry. He had been in this business
since 1980.18 He did not transact with Pacita regarding Jovita’s missing
jewels.19 In fact, he did not even know Jovita and met her only during the
preliminary investigation of the case before the MTC of Meycauayan,
Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he
first saw her when she accompanied some policemen in civilian clothes to
his shop, where he was thereafter invited to Camp Crame for
Page 65 of 71
investigation.20 He saw Pacita again only during the preliminary
investigation of the case.21 The petitioner also averred that he had no
transaction with Macario of whatever nature.22
The petitioner further testified that when the policemen in civilian clothes
approached him in his shop, they asked who "Mang Erning" was, as the
sign in his shop carried such name. When he responded to the question,
the policemen identified themselves as members of the police force. The
petitioner then gave them his full name.23When the policemen invited him
for questioning, he refused at first. Eventually, he agreed to be
interrogated at the municipal hall, where the policemen insisted on
bringing him to Camp Crame. He told them that he would go with them
only if they had a warrant of arrest.24 He denied ever offering any bribe to
the policemen.25
On November 29, 1995, the court rendered judgment finding the
petitioner guilty beyond reasonable doubt of violating P.D. No. 1612. The
decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as
follows:
1. Finding the accused GUILTY beyond reasonable doubt of the violation
of Pres. Decree No. 1612 (Anti-Fencing Law) and is hereby sentenced to
suffer the penalty of 10 years and 1 day of prision mayor maximum, as
minimum, to 20 years of reclusion temporal maximum, as maximum, with
the accessory penalties corresponding to the latter.
2. Ordering the accused to pay to private complainant Jovita Rodriguez the
corresponding value of the subject items of jewelries (sic):
one (1) pair of earrings, heart shaped P400,000.00
one (1) white gold bracelet 150,000.00
one (1) diamond ring 100,000.00
one (1) ring with diamond 5,000.00
TOTAL VALUE P655,000.00
with 6% interest on all amounts due from the filing of the information on
June 23, 1993 until said amounts have been fully paid.
SO ORDERED.26
The petitioner appealed the decision to the Court of Appeals contending
that:
I
THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF
PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.
II
THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION
EVIDENCE WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-
APPELLANT BEYOND REASONABLE DOUBT.
III
THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING
TESTIMONY (sic) OF PROSECUTION WITNESSES.
IV
THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A
PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-APPELLANT’S
OFFER OF BRIBE WITHOUT SHOW OF MONEY.
V from evidence of possession by the accused of any good, article, item,
THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-
APPELLANT.27
On December 29, 2000, the CA rendered judgment affirming the decision
of the RTC.28
The Present Petition
In the present recourse, petitioner Ernesto Francisco asserts that:
The Court of Appeals erred in sustaining the trial court’s decision finding
petitioner guilty beyond reasonable doubt of violation of the (sic)
Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law.
The Court of Appeals erred in relying on the conflicting testimonies of
prosecution witnesses, all of which consisted of hearsay evidence. 29
The petitioner asserts that the prosecution failed to prove his guilt for the
crime charged beyond reasonable doubt. He avers that the prosecution
failed to prove that Pacita stole the jewelry subject of the charge, and that
Macario sold the said pieces of jewelry to him. He, likewise, posits that the
prosecution failed to present Pacita as its witness to prove that she stole
the pieces of jewelry and sold the same to him, and to adduce in evidence
the jewelry allegedly sold to him. He contends that the testimonies of
Macario and PO1 Roldan, Jr., on his investigation of Jovita’s complaint for
theft, are hearsay evidence. The appellant argues that assuming that
Macario sold the subject jewelry to him, Macario had no personal
knowledge that the same belonged to Jovita. The petitioner avers that the
testimony of Macario, the principal witness of the prosecution, is
inconsistent on substantial matters; hence, should not be given credence
and probative weight.
On the other hand, the Office of the Solicitor General (OSG) maintains that
the prosecution was able to prove all the elements of the crime charged. It
asserts that the first element was proved through Pacita’s conviction for
theft in Criminal Case No. 2005; the second element was shown to exist
with moral certainty via the testimony of Macario identifying the
petitioner as the one who bought the subject pieces of jewelry,
corroborated by the testimony of PO1 Roldan, Jr.; and, the third element
was proven by evidence showing that the petitioner had been in the
business of buying and selling jewelry for a long period of time, and that
he had the expertise to know the correct market price of the jewelry he
purchased from Macario and Pacita. The OSG asserts that the petitioner
must have been put on his guard when the subject pieces of jewelry
worth P655,000 were sold to him for only P50,000.30 It contends that the
inconsistencies in the testimonies of the prosecution witnesses referred
to by the petitioner were minor, and could not be made as a basis to
disregard the trial court’s findings of facts, which are entitled to great
respect and credit.31
The Ruling of the Court
The petition is meritorious.
The essential elements of the crime of fencing are as follows: (1) a crime
of robbery or theft has been committed; (2) the accused, who is not a
principal or accomplice in the commission of the crime of robbery or theft,
buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or
Page 66 of 71
buys and sells, or in any manner deals in any article, item, object or
anything of value, which has been derived from the proceeds of the crime
of robbery or theft; (3) the accused knew or should have shown that the
said article, item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft; and, (4) there is, on the part of
the accused, intent to gain for himself or for another. 32 Fencing is malum
prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing
object or anything of value which has been the subject of robbery or theft,
and prescribes a higher penalty based on the value of the property.33 The
stolen property subject of the charge is not indispensable to prove fencing.
It is merely corroborative of the testimonies and other evidence adduced
by the prosecution to prove the crime of fencing.
We agree with the trial and appellate courts that the prosecution
mustered the requisite quantum of evidence, on the basis of the testimony
of Jovita, that Pacita stole the subject jewelry from the locked cabinet in
the main house of her then employer. Jovita testified on her ownership of
the jewelry and the loss thereof, and narrated that Pacita had access to the
cabinet containing the pieces of jewelry.
We, however, agree with the petitioner that the decision of the RTC of
Rizal, Branch 76, in Criminal Case No. 2005 convicting Pacita of theft does
not constitute proof against him in this case, that Pacita had, indeed, stolen
the jewelry. There is no showing that the said decision in Criminal Case No.
2005 was already final and executory when the trial court rendered its
decision in the instant case.
On the second element of the crime, the trial and appellate courts held that
the prosecution proved the same beyond reasonable doubt based on the
testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005;
that Pacita had confessed to Jovita that she sold some of the jewelry to the
petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their
investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr.
relating to said investigation; the RTC decision in Criminal Cases Nos.
1992 and 2005; the testimonies of Pacita and her brother Macario during
the preliminary investigation of Criminal Case No. 92-13841 before the
MTC of Meycauayan as shown by the transcripts of the stenographic notes
taken during the proceedings; the supplemental sworn statement of
Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony
of Macario before the trial court.
However, we find and so hold that –
First. Jovita’s testimony in Criminal Cases Nos. 1992 and 2005, that Pacita
had confessed to her that she had sold four pieces of jewelry to the
petitioner, is inadmissible in evidence against the latter to prove the truth
of the said admission. It bears stressing that the petitioner was not a party
in the said criminal cases. The well-entrenched rule is that only parties to a
case are bound by a judgment of the trial court. Strangers to a case are not
bound by the judgment of said case.34 Jovita did not reiterate her testimony
in the said criminal cases during the trial in the court a quo. The
prosecution did not present Pacita as witness therein to testify on the
admission she purportedly made to Jovita; hence, the petitioner was not
able to cross-examine Pacita. The rule is that the acts or declarations of a
person are not admissible in evidence against a third party. 35
Second. The testimony of Pacita during the preliminary investigation in
Criminal Case No. 92-13841, as well as her supplemental affidavit, is,
likewise, inadmissible against the petitioner since Pacita did not testify in
the court a quo. The petitioner was, thus, deprived of his constitutional
right to confront and cross-examine a witness against him.
Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita
pointed to the petitioner, while the latter was having a drinking spree, as
the person who bought the subject jewelry from her, is indeed admissible
in evidence against the petitioner. It is, likewise, corroborative of the
testimony of Macario. However, such testimony is admissible only to
prove such fact - that Pacita pointed to the petitioner as the person to
whom she sold the subject jewelry; it is inadmissible to prove the truth of The testimonies of Macario are even contrary to the averments of the
Pacita’s declaration to the policemen, that the petitioner was the one who Information, that the petitioner received the said jewelry from Pacita.
purchased the jewelry from her. It must be stressed that the policemen
had no personal knowledge of the said sale, and, more importantly, Pacita Assuming, for the nonce, that the petitioner purchased the said jewelry
did not testify in the court a quo. Indeed, the petitioner was deprived of from Macario, there is no evidence on record that the petitioner knew that
his right to cross-examine Pacita on the truth of what she told the they were stolen. Significantly, even Macario did not know that the jewelry
policemen. was stolen. He testified that his sister Pacita told him before he sold the
jewelry to the petitioner that they belonged to a friend of hers.
Fourth. On the other hand, the testimony of Macario during the
preliminary investigation of Criminal Case No. 92-13841 is admissible in Atty. Lerio
evidence against the petitioner since he testified for the prosecution and
was cross-examined on his testimony during the preliminary
investigation. Q At that time you and your sister sold those jewels to "Mang Erning" did
… do you know already [that] it was Mrs. Rodriguez who is the owner of
those jewels?
In fine, the only evidence of the prosecution to prove that the petitioner
purchased the jewelry from Macario and Pacita are the following: the
testimony and affidavit of PO1 Roldan, Jr.; and, the testimony of Macario A No, Sir, I do not know.
during the preliminary investigation and trial in the court a quo.
Q And who do you know was the owner of that jewels and that time you
Although the well-entrenched rule is that the testimony of a single witness and your sister sold those jewels to "Mang Erning"?
is sufficient on which to anchor a judgment of conviction, it is required
that such testimony must be credible and reliable.36 In this case, we find A According to my sister, it is (sic) owned by a friend of hers.
the testimony of Macario to be dubious; hence, barren of probative weight.
Court
Macario admitted when he testified in the court a quo that his testimony
during the preliminary investigation in Criminal Case No. 92-13841 and
his testimony in the court a quo were inconsistent. He even admitted that Q How did you come to know of this "Mang Erning?"
some portions of his testimony on direct examination in the court a quo
were inconsistent with his testimony on cross-examination and on re- A Only at that time when we brought the jewels.
direct examination. These admissions are buttressed by the records of the
case, which show that such inconsistencies pertained to material points Q But previous to that, do you know him?
and not merely to minor matters. Thus, during the preliminary
investigation in Criminal Case No. 92-13841, Macario admitted that on
October 10, 1991, he and his sister Pacita sold two rings and one bracelet A No.38
to the petitioner for P25,000, while in November 1991, he and Pacita sold
a pair of earrings to the petitioner for P25,000. On direct examination in Macario learned, after the case against Pacita had already been filed in the
the court a quo, Macario testified that he and Pacita sold the earrings to trial court, that the jewelry was, after all, owned by Jovita. However, he
the petitioner in May 1992, not in November 1991, and only for P18,000. failed to inform the petitioner that the said jewelry was stolen. Following
On cross-examination, Macario testified that he and his sister Pacita went is the testimony of Macario:
to the petitioner’s shop in Meycauayan, Bulacan and sold the subject
jewelry on both occasions. On further cross-examination, Macario
changed his testimony anew, and declared that he sold the jewelry to the Atty. Lerio
petitioner for P18,000 and not P25,000; only to change his testimony
again, and declare that he sold the jewelry for P25,000. However, Macario Q When you learned that those jewels were owned by Mrs. Rodriguez, did
testified during the preliminary investigation in Criminal Case No. 92- you, if at all, informed (sic) "Mang Erning" about it?
13841 that when he transacted with the petitioner for the second time, he
was with a friend, and not with his sister Pacita. On redirect examination,
Court
Macario declared that in October 1991, he and Pacita sold four (4) pieces
of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary
to his testimony on direct examination. He also testified that he and his Q No basis, when did you come to know that the jewels belong to Mrs.
sister sold the earrings in November 1991. Because of the contradicting Rodriguez?
accounts made by Macario, the court made the following observations:
A In 1992, when my sister already had a case.
Court
Q What did you do when you come (sic) to know about that?
q According to you, you were "nalilito" but you gave the correct answer,
you are not "nalilito" here but you gave the wrong answer. Bakit ganoon, A I was not able to do anything but just to help my sister with her case and
sabi mo nalilito ka roon (sic) pero ang sagot mo pala tama. Dito hindi ka also to help the case of Mrs. Rodriguez.
naman nalilito, bakit mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi
ka nalilito, mali ang sabi mo.
Atty. Lerio

a Because I am scare[d] here that’s why I gave the wrong answer.

Q After that, after knowing that these jewels are (sic) owned by Mrs.
Rodriguez, was there any occasion where you (sic) able to inform "Mang
q You better think about it. Erning" that those jewels were owned by Mrs. Rodriguez?

a I was confused, Sir.37 A No more, I have no more time.39

Page 67 of 71
The prosecution cannot even validly argue that the petitioner should have
known which pieces of jewelry were stolen, considering that Macario was
selling the same for P50,000 when the said pieces stolen from Jovita were
alleged to be worth P655,000. This is so because the prosecution failed to
adduce sufficient competent evidence to prove the value of the said stolen
articles. The prosecution relied solely on the bare and uncorroborated
testimony of Jovita, that they were worth P655,000:
Atty. Lerio
Q Now, will you tell this Court some of those jewels which you own?
A I own several jewels and the one (sic) in question are: 1-pair of earrings,
diamond heart-shaped P400,000.00; 1-ring, heart-shaped diamond
worth P100,000.00; 1-bracelet, white gold full of stones, diamond
worth P150,000.00; 1-diamond ring with small stones worth P5,000.00.
So, all in all, the jewelry is (sic) worth P665,000.00.40
When asked by the trial court to declare the present market value of the
stolen jewelry, Jovita merely declared:
Atty. Lerio
Q Now again, when did you acquire those jewels if you can still remember?
A I remember several years ago when my husband is (sic) alive.
Court
Q Please tell the court, [is] the market value of the jewels the same today?
A No, that is (sic) the market value several years ago.
Q So, can you explain [if] the market value, more or less, [is] the same
today?
A No. The price, if we will appraise now, is much bigger.41
When required by the petitioner, through counsel, to bring to the court
any receipts reflecting the price of the pieces of jewelry to show that she
purchased the same, Jovita answered that she had no such receipts. Thus:
Court
Q You bought it from [a] private person?
A Yes, Your Honor.
Atty. Bernal
Q What then is your proof that you bought these jewelries (sic) from a
private person?
Atty. Lerio
That was already answered, Your Honor. She said, no receipt. 42
In People v. Paraiso,43 we cited our ruling in People v. Marcos44 that an
ordinary witness cannot establish the value of jewelry, nor may the courts
take judicial notice of the value of the same:
…[A]nd as we have ruled in the case of People vs. Antonio Marcos, an
ordinary witness cannot establish the value of jewelry and the trial court
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can only take judicial notice of the value of goods which are matters of
public knowledge or are capable of unquestionable demonstration. The
value of jewelry is not a matter of public knowledge nor is it capable of
unquestionable demonstration and in the absence of receipts or any other
competent evidence besides the self-serving valuation made by the
prosecution, we cannot award the reparation for the stolen jewelry.45
It bears stressing that, in the absence of direct evidence that the accused
had knowledge that the jewelry was stolen, the prosecution is burdened
to prove facts and circumstances from which it can be concluded that the
accused should have known that the property sold to him were stolen.
This requirement serves two basic purposes: (a) to prove one of the
elements of the crime of fencing; and, (b) to enable the trial court to
determine the imposable penalty for the crime, since the penalty depends
on the value of the property; otherwise, the court will fix the value of the
property at P5.00, conformably to our ruling in People v. Dator:46
In the absence of a conclusive or definite proof relative to their value, this
Court fixed the value of the bag and its contents at P100.00 based on the
attendant circumstances of the case. More pertinently, in the case
of People vs. Reyes, this Court held that if there is no available evidence to
prove the value of the stolen property or that the prosecution failed to
prove it, the corresponding penalty to be imposed on the accused-
appellant should be the minimum penalty corresponding to theft
involving the value of P5.00.47
IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CR No. 19110 affirming the
Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is
REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of
violating P.D. No. 1612 for the prosecution’s failure to prove his guilt
beyond reasonable doubt.
SO ORDERED.
G.R. No. 134298 August 26, 1999
RAMON C. TAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
PARDO, J.:
The case before the Court is an appeal via certiorari from a decision of the
Court of Appeals * affirming that of the Regional Trial Court of Manila,
Branch 19, ** convicting petitioner of the crime of fencing.
Complainant Rosita Lim is the proprietor of Bueno Metal Industries,
located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business
of manufacturing propellers or spare parts for boats. Manuelito Mendez
was one of the employees working for her. Sometime in February 1991,
Manuelito Mendez left the employ of the company. Complainant Lim
noticed that some of the welding rods, propellers and boat spare parts,
such as bronze and stainless propellers and brass screws were missing.
She conducted an inventory and discovered that propellers and stocks
valued at P48,000.00, more or less, were missing. Complainant Rosita Lim
informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently,
Manuelito Mendez was arrested in the Visayas and he admitted that he
and his companion Gaudencio Dayop stole from the complainant's
warehouse some boat spare parts such as bronze and stainless propellers
and brass screws. Manuelito Mendez asked the complainant's forgiveness.
He pointed to petitioner Ramon C. Tan as the one who bought the stolen
items and who paid the amount of P13,000.00, in cash to Mendez and
Dayop, and they split the amount with one another. Complainant did not
file a case against Manuelito Mendez and Gaudencio Dayop.
On relation of complainant Lim, an Assistant City Prosecutor of Manila
filed with the Regional Trial Court, Manila, Branch 19, an information
against petitioner charging him with violation of Presidential Decree No.
1612 (Anti-Fencing Law) committed as follows:
That on or about the last week of February 1991, in the City of Manila,
Philippines, the said accused, did then and there wilfully, unlawfully and
feloniously knowingly receive, keep, acquire and possess several spare
parts and items for fishing boats all valued at P48,130.00 belonging to
Rosita Lim, which he knew or should have known to have been derived
from the proceeds of the crime of theft.
Contrary to law.
Upon arraignment on November 23, 1992, petitioner Ramon C. Tan
pleaded not guilty to the crime charged and waived pre-trial. To prove the
accusation, the prosecution presented the testimonies of complainant
Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez.
On the other hand, the defense presented Rosita Lim and Manuelito
Mendez as hostile witnesses and petitioner himself. The testimonies of the
witnesses were summarized by the trial court in its decision, as follows:
ROSITA LIM stated that she is the owner of Bueno Metal Industries,
engaged in the business of manufacturing propellers, bushings, welding
rods, among others (Exhibits A, A-1, and B). That sometime in February
1991, after one of her employees left the company, she discovered that
some of the manufactured spare parts were missing, so that on February
19, 1991, an inventory was conducted and it was found that some welding
rods and propellers, among others, worth P48,000.00 were missing.
Thereafter, she went to Victor Sy, the person who recommended Mr.
Mendez to her. Subsequently, Mr. Mendez was arrested in the Visayas, and
upon arrival in Manila, admitted to his having stolen the missing spare
parts sold then to Ramon Tan. She then talked to Mr. Tan, who denied
having bought the same.1âwphi1.nêt
When presented on rebuttal, she stated that some of their stocks were
bought under the name of Asia Pacific, the guarantor of their Industrial
Welding Corporation, and stated further that whether the stocks are
bought under the name of the said corporation or under the name of
William Tan, her husband, all of these items were actually delivered to the
store at 3012-3014 Jose Abad Santos Street and all paid by her husband.
That for about one (1) year, there existed a business relationship between
her husband and Mr. Tan. Mr. Tan used to buy from them stocks of
propellers while they likewise bought from the former brass woods, and
that there is no reason whatsoever why she has to frame up Mr. Tan.
MANUELITO MENDEZ stated that he worked as helper at Bueno Metal
Industries from November 1990 up to February 1991. That sometime in
the third week of February 1991, together with Gaudencio Dayop, his co-
employee, they took from the warehouse of Rosita Lim some boat spare
parts, such as bronze and stainless propellers, brass screws, etc. They
delivered said stolen items to Ramon Tan, who paid for them in cash in the
amount of P13,000.00. After taking his share (one-half (1/2) of the
amount), he went home directly to the province. When he received a letter
from his uncle, Victor Sy, he decided to return to Manila. He was then
accompanied by his uncle to see Mrs. Lim, from whom he begged for
forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit
prepared by a certain Perlas, a CIS personnel, subscribed to before a
Notary Public (Exhibits C and C-1).
VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs.
Rosita Lim, the former being the nephew of his wife while the latter is his
auntie. That sometime in February 1991, his auntie called up and
informed him about the spare parts stolen from the warehouse by
Manuelito Mendez. So that he sent his son to Cebu and requested his
kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest and
bring Mendez back to Manila. When Mr. Mendez was brought to Manila,
together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the
Page 69 of 71
pier after which they proceeded to the house of his auntie. Mr. Mendez
admitted to him having stolen the missing items and sold to Mr. Ramon
Tan in Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where
he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied
the same.
ROSITA LIM, when called to testify as a hostile witness, narrated that she
owns Bueno Metal Industries located at 301 Jose Abad Santos Street,
Tondo, Manila. That two (2) days after Manuelito Mendez and Gaudencio
Dayop left, her husband, William Tan, conducted an inventory and
discovered that some of the spare parts worth P48,000.00 were missing.
Some of the missing items were under the name of Asia Pacific and William
Tan.
MANUELITO MENDEZ, likewise, when called to testify as a hostile witness,
stated that he received a subpoena in the Visayas from the wife of Victor
Sy, accompanied by a policeman of Buliloan, Cebu on April 8, 1991. That
he consented to come to Manila to ask forgiveness from Rosita Lim. That
in connection with this case, he executed an affidavit on April 12, 1991,
prepared by a certain Atty. Perlas, a CIS personnel, and the contents
thereof were explained to him by Rosita Lim before he signed the same
before Atty. Jose Tayo, a Notary Public, at Magnolia House, Carriedo,
Manila (Exhibits C and C-1).
That usually, it was the secretary of Mr. Tan who accepted the items
delivered to Ramon Hardware. Further, he stated that the stolen items
from the warehouse were placed in a sack and he talked to Mr. Tan first
over the phone before he delivered the spare parts. It was Mr. Tan himself
who accepted the stolen items in the morning at about 7:00 to 8:00 o'clock
and paid P13,000.00 for them.
RAMON TAN, the accused, in exculpation, stated that he is a businessman
engaged in selling hardware (marine spare parts) at 944 Espeleta Street,
Sta. Cruz, Manila.
He denied having bought the stolen spare parts worth P48,000.00 for he
never talked nor met Manuelito Mendez, the confessed thief. That further
the two (2) receipts presented by Mrs. Lim are not under her name and
the other two (2) are under the name of William Tan, the husband, all in
all amounting to P18,000.00. Besides, the incident was not reported to the
police (Exhibits 1 to 1-g).
He likewise denied having talked to Manuelito Mendez over the phone on
the day of the delivery of the stolen items and could not have accepted the
said items personally for everytime (sic) goods are delivered to his store,
the same are being accepted by his staff. It is not possible for him to be at
his office at about 7:00 to 8:00 o'clock in the morning, because he usually
reported to his office at 9:00 o'clock. In connection with this case, he
executed a counter-affidavit (Exhibits 2 and 2-a).1
On August 5, 1996, the trial court rendered decision, the dispositive
portion of which reads:
WHEREFORE, premises considered, the accused RAMON C. TAN is hereby
found guilty beyond reasonable doubt of violating the Anti-Fencing Law
of 1979, otherwise known as Presidential Decree No. 1612, and sentences
him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1)
DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the
value of the stolen merchandise purchased by him in the sum of
P18,000.00.
Costs against the accused.
SO ORDERED.
Manila, Philippines, August 5, 1996.
(s/t) ZENAIDA R. DAGUNA
Judge
Petitioner appealed to the Court of Appeals.
After due proceedings, on January 29, 1998, the Courts of Appeals
rendered decision finding no error in judgment appealed from, and
affirming the same in toto.
In due time, petitioner filed with the Court of Appeals a motion for
reconsideration; however, on June 16, 1998, the Court of Appeals denied
the motion.
Hence, this petition.
The issue raised is whether or not the prosecution has successfully
established the elements of fencing as against petitioner. 2
We resolve the issue in favor of petitioner.
"Fencing, as defined in Section 2 of P.D. No. 1612 is "the act of any person
who, with intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or
in any manner deal in any article, item, object or anything of value which
he knows, or should be known to him, to have been derived from the
proceeds of the crime of robbery or theft."3
"Robbery is the taking of personal property belonging to another, with
intent to gain, by means of violence against or intimidation of any person,
or using force upon things."4
The crime of theft is committed if the taking is without violence against or
intimidation of persons nor force upon things. 5
"The law on fencing does not require the accused to have participated in
the criminal design to commit, or to have been in any wise involved in the
commission of, the crime of robbery or theft." 6
Before the enactment of P.D. No. 1612 in 1979, the fence could only be
prosecuted as an accessory after the fact of robbery or theft, as the term is
defined in Article 19 of the Revised Penal Code, but the penalty was light
as it was two (2) degrees lower than that prescribed for the principal. 7
P.D. No. 1612 was enacted to "impose heavy penalties on persons who
profit by the effects of the crimes of robbery and theft." Evidently, the
accessory in the crimes of robbery and theft could be prosecuted as such
under the Revised Penal Code or under P.D. No. 1612. However, in the
latter case, the accused ceases to be a mere accessory but becomes a
principal in the crime of fencing. Otherwise stated, the crimes of robbery
and theft, on the one hand, and fencing, on the other, are separate and
distinct offenses.8 The State may thus choose to prosecute him either
under the Revised Penal Code or P.D. No. 1612, although the preference
for the latter would seem inevitable considering that fencing is malum
prohibitum, and P.D. No. 1612 creates a presumption of fencing 9 and
prescribes a higher penalty based on the value of the property.10
In Dizon-Pamintuan vs. People of the Philippines, we set out the essential
elements of the crime of fencing as follows:
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of
the crime of robbery or theft, buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner deals in any
article, item, object or anything of value, which has been derived from the
proceeds of the said crime;
Page 70 of 71
3. The accused knows or should have known that the said article, item,
object or anything of value has been derived from the proceeds of the
crime of robbery or theft; and
4. There is on the part of the accused, intent to gain for himself or for
another.11
Consequently, "the prosecution must prove the guilt of the accused by
establishing the existence of all the elements of the crime charged."12
Short of evidence establishing beyond reasonable doubt the existence of
the essential elements of fencing, there can be no conviction for such
offense.13 "It is an ancient principle of our penal system that no one shall
be found guilty of crime except upon proof beyond reasonable doubt
(Perez vs. Sandiganbayan, 180 SCRA 9)."14
In this case, what was the evidence of the commission of theft
independently of fencing?
Complainant Rosita Lim testified that she lost certain items and Manuelito
Mendez confessed that he stole those items and sold them to the accused.
However, Rosita Lim never reported the theft or even loss to the police.
She admitted that after Manuelito Mendez, her former employee,
confessed to the unlawful taking of the items, she forgave him, and did not
prosecute him. Theft is a public crime. It can be prosecuted de oficio, or
even without a private complainant, but it cannot be without a victim. As
complainant Rosita Lim reported no loss, we cannot hold for certain that
there was committed a crime of theft. Thus, the first element of the crime
of fencing is absent, that is, crime of robbery or theft has been committed.
There was no sufficient proof of the unlawful taking of another's property.
True, witness Mendez admitted in an extra-judicial confession that he sold
the boat parts he had pilfered from complainant to petitioner. However,
an admission or confession acknowledging guilt of an offense may be
given in evidence only against the person admitting or confessing. 15 Even
on this, if given extra-judicially, the confessant must have the assistance of
counsel; otherwise, the admission would be inadmissible in evidence
against the person so admitting.16 Here, the extra-judicial confession of
witness Mendez was not given with the assistance of counsel, hence,
inadmissible against the witness. Neither may such extra-judicial
confession be considered evidence against accused. 17 There must be
corroboration by evidence of corpus delicti to sustain a finding of
guilt.18 Corpus delicti means the "body or substance of the crime, and, in its
primary sense, refers to the fact that the crime has been actually
committed."19The "essential elements of theft are (1) the taking of
personal property; (2) the property belongs to another; (3) the taking
away was done with intent of gain; (4) the taking away was done without
the consent of the owner; and (5) the taking away is accomplished without
violence or intimidation against persons or force upon things (U.S. vs. De
Vera, 43 Phil. 1000)."20 In theft, corpus delicti has two elements, namely:
(1) that the property was lost by the owner, and (2) that it was lost by
felonious taking.21 In this case, the theft was not proved because
complainant Rosita Lim did not complain to the public authorities of the
felonious taking of her property. She sought out her former employee
Manuelito Mendez, who confessed that he stole certain articles from the
warehouse of the complainant and sold them to petitioner. Such
confession is insufficient to convict, without evidence of corpus delicti.22
What is more, there was no showing at all that the accused knew or should
have known that the very stolen articles were the ones sold him. "One is
deemed to know a particular fact if he has the cognizance, consciousness
or awareness thereof, or is aware of the existence of something, or has the
acquaintance with facts, or if he has something within the mind's grasp
with certitude and clarity. When knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established if a person
is aware of a high probability of its existence unless he actually believes
that it does not exist. On the other hand, the words "should know" denote
the fact that a person of reasonable prudence and intelligence would
ascertain the fact in performance of his duty to another or would govern
his conduct upon assumption that such fact exists. Knowledge refers to a
mental state of awareness about a fact. Since the court cannot penetrate
the mind of an accused and state with certainty what is contained therein,
it must determine such knowledge with care from the overt acts of that
person. And given two equally plausible states of cognition or mental
awareness, the court should choose the one which sustains the constitutional
presumption of innocence."23

Without petitioner knowing that he acquired stolen articles, he can not be

guilty of "fencing".24

Consequently, the prosecution has failed to establish the essential

elements of fencing, and thus petitioner is entitled to an acquittal.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the
Court of Appeals in CA-G.R. C.R. No. 20059 and hereby ACQUITS petitioner
of the offense charged in Criminal Case No. 92-108222 of the Regional
Trial Court, Manila.1âwphi1.nêt

Costs de oficio.

SO ORDERED.

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