FENCING

Syllabi/Synopsis SYNOPSIS Manuelito Mendez, a former employee of Bueno Metal Industries, was arrested for stealing product materials from the company warehouse. Mendez admitted the accusation and pointed to amon !an as the one who "ought the stolen items. Mendez was forgi#en "y complainant "ut !an was charged with #iolation of the $nti%Fencing &aw. $fter trial, !an was con#icted of the crime charged, and on appeal, the Court of $ppeals affirmed the same. 'ence, this appeal. !he issue raised here is whether or not the prosecution has successfully esta"lished the elements of fencing as against petitioner. !he Court resol#ed the issue in the negati#e. Noted is the fact that the loss was ne#er reported to the police. $nd as the complainant reported no loss, it cannot "e held for certain that the crime of theft or ro""ery was committed. !hus, the first element of the crime of fencing is a"sent. !he e(tra%)udicial confession of Manuelito cannot "e considered as e#idence against the accused as there must "e corro"oration "y e#idence of corpus delicti to sustain a finding of guilt. Further, there was no showing at all that the accused *new or should ha#e *nown that the #ery stolen articles were the ones sold to him. Conse+uently, the prosecution, ha#ing failed to esta"lish the essential elements of fencing, petitioner is entitled to an ac+uittal. SYLLABUS 1. CRIMINAL LAW; FENCING; EFINE . % ,Fencing, as defined in -ection . of /.0. No. 121. is 3the act of any person who, with intent to gain for himself or for another, shall "uy, recei#e, possess, *eep, ac+uire, conceal, sell or dispose of, or shall "uy and sell, or in any manner deal in any article, item, o")ect or anything of #alue which he *nows, or should "e *nown to him, to ha#e "een deri#ed from the proceeds of the crime of ro""ery or theft.' ,!he law on fencing does not re+uire the accused to ha#e participated in the criminal design to commit, or to ha#e "een in any wise in#ol#ed in the commission of, the crime of ro""ery or theft.4 !. I .; ROBBERY AN "#EF"; IS"INGUIS#E . % , o""ery is the ta*ing of personal property "elonging to another, with intent to gain, "y means of #iolence against or intimidation of any person, or using force upon things.4 !he crime of theft is committed if the ta*ing is without #iolence against or intimidation of persons nor force upon things. $. I .; FENCING; MAY BE PROSECU"E UN ER "#E RE%ISE PENAL CO E OR UN ER P. . NO. 1&1!. %Before the enactment of /.0. No 121. in 1565, the fence could only "e prosecuted as an accessory after the fact of ro""ery or theft, as the term is defined in $rticle 15 of the e#ised /enal Code, "ut the penalty was light as it was two 7.8 degrees lower than that prescri"ed for the principal. /. 0. No. 121. was enacted to ,impose hea#y penalties on persons who profit "y the effects of the crimes of ro""ery and theft.4 E#idently, the accessory in the crimes of ro""ery and theft could "e prosecuted as such under the e#ised /enal Code or under /.0. No. 121.. 'owe#er, in the latter case, the accused ceases to "e a mere accessory "ut "ecomes a principal in the crime of fencing. 9therwise stated, the crimes of ro""ery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. !he -tate may thus choose to prosecute him either under the e#ised /enal Code or /. 0. No. 121., although the preference for the latter would seem ine#ita"le considering that fencing is malum prohibitum, and /. 0. No. 121. creates a presumption of fencing and prescri"es a higher penalty "ased on the #alue of the property. '. I .; I .; ELEMEN"S. % In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of fencing as follows: ,1. $ crime of ro""ery or theft has "een committed; ,.. !he accused, who is not a principal or accomplice in the commission of the crime of ro""ery or

"AN % PEOPLE
theft, "uys, recei#es, possesses, *eeps, ac+uires, conceals, sells or disposes, or "uys and sells, or in any manner deals in any article, item, o")ect or anything of #alue, which has "een deri#ed from the proceeds of the said crime; ,<. !he accused *nows or should ha#e *nown that the said article, item, o")ect or anything of #alue has "een deri#ed from the proceeds of the crime of ro""ery or theft; and ,=. !here is on the part of the accused, intent to gain for himself or for another.4 (. I .; I .; I .; A CRIME OF ROBBERY OR "#EF" #AS BEEN COMMI""E ; NO" ES"ABLIS#E . % ,!he prosecution must pro#e the guilt of the accused "y esta"lishing the e(istence of all the elements of the crime charged.4 -hort of e#idence esta"lishing "eyond reasona"le dou"t the e(istence of the essential elements of fencing, there can "e no con#iction for such offense. ,It is an ancient principle of our penal system that no one shall "e found guilty of crime e(cept upon proof "eyond reasona"le dou"t 7 Perez vs. Sandiganbayan, 1>? -C $ 58.4 'ere, osita &im ne#er reported the theft or the loss to the police. 'ence, we cannot hold for certain that there was committed a crime of theft. !hus, the first element of the crime of fencing is a"sent, that is, a crime of ro""ery or theft has "een committed. &. REME IAL LAW; E%I ENCE; E)"RA*+U ICIAL CONFESSION A MI""ING GUIL"; RULE. % !here was no sufficient proof of the unlawful ta*ing of another@s property. !rue, witness Mendez admitted in an e(tra%)udicial confession that he sold the "oat parts he had pilfered from complainant to petitioner. 'owe#er, an admission or confession ac*nowledging guilt of an offense may "e gi#en in e#idence only against the person admitting or confessing. E#en on this, if gi#en e(tra%)udicially, the confessant must ha#e the assistance of counsel; otherwise, the admission would "e inadmissi"le in e#idence against the person so admitting. 'ere, the e(tra%)udicial confession of witness Mendez was not gi#en with the assistance of counsel, hence, inadmissi"le against the witness. Neither may such e(tra%)udicial confession "e considered e#idence against accused. !here must "e corro"oration "y e#idence of corpus delicti to sustain a finding of guilt. Corpus delicti means the ,"ody or su"stance of the crime, and, in its primary sense, refers to the fact that the crime has "een actually committed.4 ,. CRIMINAL LAW; "#EF"; ELEMEN"S. % !he ,essential elements of theft are 718, the ta*ing of personal property; 7.8 the property "elongs to another; 7<8 the ta*ing away was done with intent of gain; 7=8 the ta*ing away was done without the consent of the owner; and 7A8 the ta*ing away is accomplished without #iolence or intimidation against persons or force upon things 7 .S. vs. De !era, =< /hil. 1???8.4 In theft, corpus delicti has two elements, namely: 718 that the property was lost "y the owner, and 7.8 that it was lost "y felonious ta*ing. -. I .; FENCING; ELEMEN"S; ./NOWLE GE0 "#A" "#E S"OLEN AR"ICLES WERE "#E ONES SOL ; ELUCI A"E . % !here was no showing at all that the accused *new or should ha#e *nown that the #ery stolen articles were the ones sold to him. ,9ne is deemed to *now a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the e(istence of something, or has the ac+uaintance with facts, or if he has something within the mind@s grasp with certitude and clarity. Bhen *nowledge of the e(istence of a particular fact is an element of an offense, such *nowledge is esta"lished if a person is aware of a high pro"a"ility of its e(istence unless he actually "elie#es that it does not e(ist. 9n the other hand, the words ,should *now4 denote the fact that a person of reasona"le prudence and intelligence would ascertain the fact in performance of his duty to another or would go#ern his conduct upon assumption that such fact e(ists. Cnowledge refers to a mental state of awareness a"out a fact. -ince the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such *nowledge with care from the o#ert acts of that person. "nd given t#o e$ually plausible states of cognition or mental a#areness, the court should choose the one #hich sustains the constitutional presumption of innocence.

FI -! 0IDI-I9N

1G.R. No. 1$'!2-. A343s5 !&6 12227

RAMON C. "AN6 petitioner, vs. PEOPLE OF "#E P#ILIPPINES6 respondent. ECISION PAR O6 J.8 !he case "efore the Court is an appeal via certiorari from a decision of the Court of $ppealsE affirming that of the egional !rial Court of Manila, Branch 15,EEcon#icting petitioner of the crime of fencing. Complainant osita &im is the proprietor of Bueno Metal Industries, located at <?1 Fose $"ad -antos -t., !ondo, Manila, engaged in the "usiness of manufacturing propellers or spare parts for "oats. Manuelito Mendez was one of the employees wor*ing for her. -ometime in Fe"ruary 1551, Manuelito Mendez left the employ of the company. Complainant &im noticed that some of the welding rods, propellers and "oat spare parts, such as "ronze and stainless propellers and "rass screws were missing. -he conducted an in#entory and disco#ered that propellers and stoc*s #alued at /=>,???.??, more or less, were missing. Complainant osita &im informed Dictor -y, uncle of Manuelito Mendez, of the loss. -u"se+uently, Manuelito Mendez was arrested in the Disayas and he admitted that he and his companion Gaudencio 0ayop stole from the complainant@s warehouse some "oat spare parts such as "ronze and stainless propellers and "rass screws. Manuelito Mendez as*ed for complainant@s forgi#eness. 'e pointed to petitioner amon C. !an as the one who "ought the stolen items and who paid the amount of /1<,???.??, in cash to Mendez and 0ayop, and they split the amount with one another. Complainant did not file a case against Manuelito Mendez and Gaudencio 0ayop. 9n relation of complainant &im, an $ssistant City /rosecutor of Manila filed with the egional !rial Court, Manila, Branch 15, an information against petitioner charging him with #iolation of /residential 0ecree No. 121. 7$nti%Fencing &aw8 committed as follows: ,!hat on or a"out the last wee* of Fe"ruary 1551, in the City of Manila, /hilippines, the said accused, did then and there wilfully, unlawfully and feloniously *nowingly recei#e, *eep, ac+uire and possess se#eral spare parts and items for fishing "oats all #alued at /=>,1<?.?? "elonging to osita &im, which he *new or should ha#e *nown to ha#e "een deri#ed from the proceeds of the crime of theft. Contrary to law.4 Gpon arraignment on No#em"er .<, 155., petitioner amon C. !an pleaded not guilty to the crime charged and wai#ed pre%trial. !o pro#e the accusation, the prosecution presented the testimonies of complainant osita &im, Dictor -y and the confessed thief, Manuelito Mendez. 9n the other hand, the defense presented osita &im and Manuelito Mendez as hostile witnesses and petitioner himself. !he testimonies of the witnesses were summarized "y the trial court in its decision, as follows:

, 9-I!$ &IM stated that she is the owner of Bueno Metal Industries, engaged in the "usiness of manufacturing propellers, "ushings, welding rods, among others 7E(hi"its $, $%1, and B8. !hat sometime in Fe"ruary 1551, after one of her employees left the company, she disco#ered that some of the manufactured spare parts were missing, so that on Fe"ruary 15, 1551, an in#entory was conducted and it was found that some welding rods and propellers, among others, worth /=>,???.?? were missing. !hereafter, she went to Dictor -y, the person who recommended Mr. Mendez to her. -u"se+uently, Mr. Mendez was arrested in the Disayas, and upon arri#al in Manila, admitted to his ha#ing stolen the missing spare parts sold then to amon !an. -he then tal*ed to Mr. !an, who denied ha#ing "ought the same. Bhen presented on re"uttal, she stated that some of their stoc*s were "ought under the name of $sia /acific, the guarantor of their Industrial Belding Corporation, and stated further that whether the stoc*s are "ought under the name of the said corporation or under the name of Billiam !an, her hus"and, all of these items were actually deli#ered to the store at <?1.%<?1= Fose $"ad -antos -treet and all paid "y her hus"and. !hat for a"out one 718 year, there e(isted a "usiness relationship "etween her hus"and and Mr. !an. Mr. !an used to "uy from them stoc*s of propellers while they li*ewise "ought from the former "rass woods, and that there is no reason whatsoe#er why she has to frame up Mr. !an. M$NGE&I!9 MEN0EH stated that he wor*ed as helper at Bueno Metal Industries from No#em"er 155? up to Fe"ruary 1551. !hat sometime in the third wee* of Fe"ruary 1551, together with Gaudencio 0ayop, his co%employee, they too* from the warehouse of osita &im some "oat spare parts, such as "ronze and stainless propellers, "rass screws, etc. !hey deli#ered said stolen items to amon !an, who paid for them in cash in the amount of /1<,???.??. $fter ta*ing his share 7one%half 71I.8 of the amount8, he went home directly to the pro#ince. Bhen he recei#ed a letter from his uncle, Dictor -y, he decided to return to Manila. 'e was then accompanied "y his uncle to see Mrs. &im, from whom he "egged for forgi#eness on $pril >, 1551. 9n $pril 1., 1551, he e(ecuted an affida#it prepared "y a certain /erlas, a CI- personnel, su"scri"ed to "efore a Notary /u"lic 7E(hi"its C and C%18. DIC!9 J KsicL -J stated that he *nows "oth Manuelito Mendez and Mrs. osita &im, the former "eing the nephew of his wife while the latter is his auntie. !hat sometime in Fe"ruary 1551, his auntie called up and informed him a"out the spare parts stolen from the warehouse "y Manuelito Mendez. -o that he sent his son to Ce"u and re+uested his *umpadre, a police officer of -ta. Catalina, Negros 9ccidental, to arrest and "ring Mendez "ac* to Manila. Bhen Mr. Mendez was "rought to Manila, together with -upt. /erlas of the B/0C, they fetched Mr. Mendez from the pier after which they proceeded to the house of his auntie. Mr. Mendez admitted to him ha#ing stolen the missing items and sold to Mr. amon !an in -ta. Cruz, Manila. $gain, he "rought Mr. Mendez to -ta. Cruz where he pointed to Mr. !an as the "uyer, "ut when confronted, Mr. !an denied the same. 9-I!$ &IM, when called to testify as a hostile witness, narrated that she owns Bueno Metal Industries located at <?1 Fose $"ad -antos -treet, !ondo, Manila. !hat two 7.8 days after Manuelito Mendez and Gaudencio 0ayop left, her hus"and, Billiam !an, conducted an in#entory and disco#ered that some of the spare parts worth /=>,???.?? were missing. -ome of the missing items were under the name of $sia /acific and Billiam !an. M$NGE&I!9 MEN0EH, li*ewise, when called to testify as a hostile witness, stated that he recei#ed a su"poena in the Disayas from the wife of Dictor -y, accompanied "y a policeman of

Buliloan, Ce"u on $pril >, 1551. !hat he consented to come to Manila to as* forgi#eness from osita &im. !hat in connection with this case, he e(ecuted an affida#it on $pril 1., 1551, prepared "y a certain $tty. /erlas, a CI- personnel, and the contents thereof were e(plained to him "y osita &im "efore he signed the same "efore $tty. Fose !ayo, a Notary /u"lic, at Magnolia 'ouse, Carriedo, Manila 7E(hi"its C and C%18. !hat usually, it was the secretary of Mr. !an who accepted the items deli#ered to amon 'ardware. Further, he stated that the stolen items from the warehouse were placed in a sac* and he tal*ed to Mr. !an first o#er the phone "efore he deli#ered the spare parts. It was Mr. !an himself who accepted the stolen items in the morning at a"out 6:?? to >:?? o@cloc* and paid /1<,???.?? for them. $M9N !$N, the accused, in e(culpation, stated that he is a "usinessman engaged in selling hardware 7marine spare parts8 at 5== Espeleta -treet, -ta. Cruz, Manila. 'e denied ha#ing "ought the stolen spare parts worth /=>,???.?? for he ne#er tal*ed nor met Manuelito Mendez, the confessed thief. !hat further the two 7.8 receipts presented "y Mrs. &im are not under her name and the other two 7.8 are under the name of Billiam !an, the hus"and, all in all amounting to /1>,???.??. Besides, the incident was not reported to the police 7E(hi"its 1 to 1%g8. 'e li*ewise denied ha#ing tal*ed to Manuelito Mendez o#er the phone on the day of the deli#ery of the stolen items and could not ha#e accepted the said items personally for e#erytime 7sic8 goods are deli#ered to his store, the same are "eing accepted "y his staff. It is not possi"le for him to "e at his office at a"out 6:?? to >:?? o@cloc* in the morning, "ecause he usually reported to his office at 5:?? o@cloc*. In connection with this case, he e(ecuted a counter%affida#it 7E(hi"its . and .%a8.K1L 9n $ugust A, 1552, the trial court rendered decision, the dispositi#e portion of which reads: ,B'E EF9 E, premises considered, the accused $M9N C. !$N is here"y found guilty "eyond reasona"le dou"t of #iolating the $nti%Fencing &aw of 1565, otherwise *nown as /residential 0ecree No. 121., and sentences him to suffer the penalty of imprisonment of -IM 728 JE$ - and 9NE 718 0$J to !EN 71?8 JE$ - of prision mayor and to indemnify osita &im the #alue of the stolen merchandise purchased "y him in the sum of /1>,???.??. ,Costs against the accused. ,-9 9 0E E0. ,Manila, /hilippines, $ugust A, 1552. ,7sIt8 HEN$I0$ ,Fudge4 /etitioner appealed to the Court of $ppeals. $fter due proceedings, on Fanuary .5, 155>, the Court of $ppeals rendered decision finding no error in the )udgment appealed from, and affirming the same in toto. . 0$GGN$

In due time, petitioner filed with the Court of $ppeals a motion for reconsideration; howe#er, on Fune 12, 155>, the Court of $ppeals denied the motion. 'ence, this petition. !he issue raised is whether or not the prosecution has successfully esta"lished the elements of fencing as against petitioner.K.L Be resol#e the issue in fa#or of petitioner. ,Fencing, as defined in -ection . of /.0. No. 121. is 3the act of any person who, with intent to gain for himself or for another, shall "uy, recei#e, possess, *eep, ac+uire, conceal, sell or dispose of, or shall "uy and sell, or in any manner deal in any article, item, o")ect or anything of #alue which he *nows, or should "e *nown to him, to ha#e "een deri#ed from the proceeds of the crime of ro""ery or theft.@4K<L , o""ery is the ta*ing of personal property "elonging to another, with intent to gain, "y means of #iolence against or intimidation of any person, or using force upon things.4K=L !he crime of theft is committed if the ta*ing is without #iolence against or intimidation of persons nor force upon things.KAL ,!he law on fencing does not re+uire the accused to ha#e participated in the criminal design to commit, or to ha#e "een in any wise in#ol#ed in the commission of, the crime of ro""ery or theft.4K2L Before the enactment of /. 0. No. 121. in 1565, the fence could only "e prosecuted as an accessory after the fact of ro""ery or theft, as the term is defined in $rticle 15 of the e#ised /enal Code, "ut the penalty was light as it was two 7.8 degrees lower than that prescri"ed for the principal.K6L /. 0. No. 121. was enacted to ,impose hea#y penalties on persons who profit "y the effects of the crimes of ro""ery and theft.4 E#idently, the accessory in the crimes of ro""ery and theft could "e prosecuted as such under the e#ised /enal Code or under /.0. No. 121.. 'owe#er, in the latter case, the accused ceases to "e a mere accessory "ut "ecomes a principal in the crime of fencing. 9therwise stated, the crimes of ro""ery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. K>L !he -tate may thus choose to prosecute him either under the e#ised /enal Code or /. 0. No. 121., although the preference for the latter would seem ine#ita"le considering that fencing is malum prohibitum, and /. 0. No. 121. creates a presumption of fencingK5L and prescri"es a higher penalty "ased on the #alue of the property.K1?L In 0izon%/amintuan #s. /eople of the /hilippines, we set out the essential elements of the crime of fencing as follows: ,1. $ crime of ro""ery or theft has "een committed; ,.. !he accused, who is not a principal or accomplice in the commission of the crime of ro""ery or theft, "uys, recei#es, possesses, *eeps, ac+uires, conceals, sells or disposes, or "uys and sells, or in any manner deals in any article, item, o")ect or anything of #alue, which has "een deri#ed from the proceeds of the said crime; ,<. !he accused *nows or should ha#e *nown that the said article, item, o")ect or anything of #alue has "een deri#ed from the proceeds of the crime of ro""ery or theft; and ,=. !here is on the part of the accused, intent to gain for himself or for another.4K11L

Conse+uently, ,the prosecution must pro#e the guilt of the accused "y esta"lishing the e(istence of all the elements of the crime charged.4 K1.L -hort of e#idence esta"lishing "eyond reasona"le dou"t the e(istence of the essential elements of fencing, there can "e no con#iction for such offense. K1<L ,It is an ancient principle of our penal system that no one shall "e found guilty of crime e(cept upon proof "eyond reasona"le dou"t 7/erez #s. -andigan"ayan, 1>? -C $ 58.4K1=L In this case, what was the e#idence of the commission of theft independently of fencingN Complainant osita &im testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. 'owe#er, osita &im ne#er reported the theft or e#en loss to the police. -he admitted that after Manuelito Mendez, her former employee, confessed to the unlawful ta*ing of the items, she forga#e him, and did not prosecute him. !heft is a pu"lic crime. It can "e prosecuted de oficio, or e#en without a pri#ate complainant, "ut it cannot "e without a #ictim. $s complainant osita &im reported no loss, we cannot hold for certain that there was committed a crime of theft. !hus, the first element of the crime of fencing is a"sent, that is, a crime of ro""ery or theft has "een committed. !here was no sufficient proof of the unlawful ta*ing of another@s property. !rue, witness Mendez admitted in an e(tra%)udicial confession that he sold the "oat parts he had pilfered from complainant to petitioner. 'owe#er, an admission or confession ac*nowledging guilt of an offense may "e gi#en in e#idence only against the person admitting or confessing. K1AL E#en on this, if gi#en e(tra%)udicially, the confessant must ha#e the assistance of counsel; otherwise, the admission would "e inadmissi"le in e#idence against the person so admitting. K12L 'ere, the e(tra%)udicial confession of witness Mendez was not gi#en with the assistance of counsel, hence, inadmissi"le against the witness. Neither may such e(tra%)udicial confession "e considered e#idence against accused.K16L !here must "e corro"oration "y e#idence of corpus delicti to sustain a finding of guilt. K1>L Corpus delicti means the ,"ody or su"stance of the crime, and, in its primary sense, refers to the fact that the crime has "een actually committed.4 K15L!he ,essential elements of theft are 718 the ta*ing of personal property; 7.8 the property "elongs to another; 7<8 the ta*ing away was done with intent of gain; 7=8 the ta*ing away was done without the consent of the owner; and 7A8 the ta*ing away is accomplished without #iolence or intimidation against persons or force upon things 7G. -. #s. 0e Dera, =< /hil. 1???8.4 K.?L In theft, corpus delicti has two elements, namely: 718 that the property was lost "y the owner, and 7.8 that it was lost "y felonious ta*ing. K.1L In this case, the theft was not pro#ed "ecause complainant osita &im did not complain to the pu"lic authorities of the felonious ta*ing of her property. -he 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. -uch confession is insufficient to con#ict, without e#idence of corpus delicti.K..L Bhat is more, there was no showing at all that the accused *new or should ha#e *nown that the #ery stolen articles were the ones sold to him. ,9ne is deemed to *now a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the e(istence of something, or has the ac+uaintance with facts, or if he has something within the mind@s grasp with certitude and clarity. Bhen *nowledge of the e(istence of a particular fact is an element of an offense, such *nowledge is esta"lished if a person is aware of a high pro"a"ility of its e(istence unless he actually "elie#es that it does not e(ist. 9n the other hand, the words ,should *now4 denote the fact that a person of reasona"le prudence and intelligence would ascertain the fact in performance of his duty to another or would go#ern his conduct upon assumption that such fact e(ists. Cnowledge refers to a mental state of awareness a"out a fact. -ince the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such *nowledge with care from the o#ert acts of that person. An9 4i:;n 5<o ;=3ally

pla3sibl; s5a5;s o> ?o4ni5ion o@ A;n5al a<a@;n;ss6 5B; ?o3@5 sBo3l9 ?Boos; 5B; on; <Bi?B s3s5ains 5B; ?ons5i535ional p@;s3Ap5ion o> inno?;n?;.0K.<L Bithout petitioner *nowing that he ac+uired stolen articles, he can not "e guilty of ,fencing4. K.=L Conse+uently, the prosecution has failed to esta"lish the essential elements of fencing, and thus petitioner is entitled to an ac+uittal. W#EREFORE6 the Court EDE -E- and -E!- $-I0E the decision of the Court of $ppeals in C$%G. . C . No. .??A5 and here"y $COGI!- petitioner of the offense charged in Criminal Case No. 5.%1?>... of the egional !rial Court, Manila. Costs de oficio. SO OR ERE . Davide, %r., C.%., &Chairman', Puno, (apunan, and )nares-Santiago, %%., concur.