Republic of the Philippines DEPARTMENT OF JUSTICE OFFICE OF THE CITY PROSECUTOR City of Las Pinas

PEOPLE OF THE PHILIPPINES,

Plaintiff,

Criminal case No. 12345-A For: Qualified Theft. Article 310 of the Revised Penal Code

-versus-

CHRISTOPHER AGUSTIN AVES,

Accused.

x---------------------------------------------x

RESOLUTION

The Accused, CHRISTOPHER AGUSTIN AVES was charged of the crime of QUALIFIED THEFT in a complaint filed by Wally Limjoco.

In support of his complaint, the herein complainant attached the following documents: 1. Affidavit of Andreo Laitan 2. Affidavit of Norvell Madrid 3. Police Record of Events and others.

Statement of Facts

Based on the investigation conducted by the Police Investigator, PO2 JOSE MATALO, the facts of the case are stated hereunder:

That on or about the 18th of July 2013, at nighttime, purposely sought to better accomplish his criminal design, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, commence the commission of the crime of qualified theft, directly by overt acts, to wit: by then and there take, steal and carry away a tool box full of scrapped of steel, valued at P5,000.00, belonging to wally Limjoco, the owner of P.J. LIMJOCO CONSTRUCTION INC., but the said accused did not however succeed in performing all the acts of execution which would produce the crime of qualified theft as a consequence, by means of some causes independent of his own spontaneous desistance, that is, because of the timely discovery of the crime and the subsequent arrest of the herein accused.

In the joint affidavit of Norvell Madrid and Andreo Laitan, one of the construction workers on duty during the time of the time of inspection, stated that while he was assigned at Tandang Sora, Quezon city. He allegedly pointed out the tool box of scrapped metal inside the barracks. And made an inspection inside the jobsite and found out the said box then estimated the amount of such scrapped metal.

And in the affidavit of Police Senior Inspector Romeo V. Benamarca, stated that they were accompanied the owner of Limjoco Constuction. When they proceeded to the area, he saw Christopher Aves sleeping inside the barracks. That he immediately arrested him and brought them to the Taguig Police Station, and after such the accused was brought to the nearest hospital.

As for the respondents, in their counter-affidavits, he vehemently denied the accusations against them putting up self-defense and alibi as their defenses. CHRISTOPHER AVES alleged that on 18th of July 2013, he and his Co-workers are in the jobsite doing their job. That while working an inspection was being conducted in the

barracks and tell them a box of scrapped metal was found in their barracks.. And at about ten oclock in the evening of the said day, he was awakened when Wally Limjoco and Norvell Madrid entered in the barrack s together with the policemen, telling him that there were police officers looking for him. He then voluntarily went to the police station to answer the charges against him.

Analyses/ Findings and Recommendations

Article 310 of the Revised Penal Code specifically states:

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 article, 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 from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

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, but concurrent with the general criminal intent which is an essential element of a felony of dolo (dolos malus). The animo being a state of the mind may be proved by direct or circumstantial evidence, inclusive of the manner and conduct of the accused before, during and after the taking of the personal property. General criminal intent is presumed or inferred from the very fact that the wrongful act is done since one is presumed to have willed the natural consequences of his own acts. Likewise, animus furandi is presumed from the taking of personal property without the consent of the owner or lawful possessor thereof. The same may be rebutted by the accused by evidence that he took the personal property under a bona fide belief that he owns the property.

The acts of Christopher and the relevant circumstances that led to accused him of stealing the scrapped steel metal provide that there is no sufficient basis for the

finding of probable cause to file information against him for qualified theft. In fact, it is easy to infer from the factual milieu of the instant case the existence of all the elements necessary for the prosecution of the crime of qualified theft.

As defined, theft is committed by any person who, with intent to gain, but without violence against, or intimidation of neither persons nor force upon things, shall take the personal property of another without the latters consent. If committed with grave abuse of confidence, the crime of theft becomes qualified. In prcis, qualified theft punishable under Article 310 in relation to Articles 308 and 309 of the Revised Penal Code (RPC) is committed when the following elements are present: 1. 2. 3. 4. 5. Taking of personal property; That the said property belongs to another; That the said taking be done with intent to gain; That it be done without the owners consent; That it be accomplished without the use of violence or intimidation against persons, nor of force upon things; and 6. That it be done with grave abuse of confidence.

It was ruled that the open and notorious taking, without any attempt at concealment or denial, but an avowal of the taking, raises a strong presumption that there is no animus furandi. But, if the claim is dishonest, a mere pretense, taking the property of another will not protect the taker:

xxx In all cases where one in good faith takes anothers property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another, believed to be the true owner. Still, if the claim is dishonest, a mere pretense, it will not protect the taker. The gist of the offense is the intent to deprive another of his property , either for gain or out of wantonness or malice to deprive another of his right in the thing taken. This cannot be where the taker honestly believes the property is his own or that of another and that he has a right to take possession of it for himself or for another, for the protection of the latter.

CHRISTOPHER AVES successful to persuade the Investigating Prosecutor that the there is no theft. The element of qualified theft was lacking since based on the respondents affidavit. And that the complainant did not pursue the said allegation.

WHEREFORE, IN VIEW OF THE FOREGOING, that an information for the crime of Qualified theft filed against the respondent CHRISTOPHER AVES is lack of merit.

Las Pinas City, October 5, 2013.

BAYANI L. MAKABAYAN Assistant City Prosecutor

APPROVED BY:

BAGWIS O. ROSA Chief City Prosecutor

Republic of the Philippines DEPARTMENT OF JUSTICE OFFICE OF THE CITY PROSECUTOR City of Las Pinas

PEOPLE OF THE PHILIPPINES,

Plaintiff,

Criminal case No. 12345-A For: Qualified Theft. Article 310 of the Revised Penal Code

-versus-

CHRISTOPHER AGUSTIN AVES,

Accused.

x---------------------------------------------x

RESOLUTION

Motion for Reconsideration filed by the complainant is hereby denied for lack of sufficient evidence that will establish probable cause on the accusation against the herein above stated accused. Las Pinas City, October 7, 2013

BAYANI L. MAKABAYAN Assistant City Prosecutor

APPROVED BY:

BAGWIS O. ROSA Chief City Prosecutor

Republic of the Philippines DEPARTMENT OF JUSTICE OFFICE OF THE CITY PROSECUTOR City of Las Pinas

PEOPLE OF THE PHILIPPINES,

Plaintiff,

Criminal case No. 12345-A For: Qualified Theft. Article 310 of the Revised Penal Code

-versus-

CHRISTOPHER AGUSTIN AVES,

Accused.

x------------------------------------------x

PETITION FOR REVIEW

COMES NOW, the undersigned petitioner, unto this Honorable Office respectfully asserts:

1. That on 18th of July 2013 the undersigned Chief of Police of Taguig Police Station, Taguig City upon complaint of the private offended party filed a case against CHRISTOPHER AVES for Qualified Theft. Article 310 of the Revised Penal Code

docketed under Criminal case No. 12345-A before the Office of Honorable Court located in City of Las Pinas where the preliminary investigation took place;

2. That for the information of the Honorable Secretary this case started ; That on or about the 18th of July 2013, at nighttime, purposely sought to better accomplish his criminal design, in the City of Manila, Philippines, the said accused did then and there

willfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, commence the commission of the crime of qualified theft, directly by overt acts, to wit: by then and there take, steal and carry away a tool box full of scrapped of steel, valued at P5,000.00, belonging to wally Limjoco, the owner of P.J. LIMJOCO CONSTRUCTION INC., but the said accused did not however succeed in performing all the acts of execution which would produce the crime of qualified theft as a consequence, by means of some causes independent of his own spontaneous desistance, that is, because of the timely discovery of the crime and the subsequent arrest of the herein accused.

3. That on October 5, 2013 the undersigned received the Resolution of the Honorable Prosecutor copy of which is attached as Annex A disposing the case as follows:

4. That the undersigned acts of Christopher and the relevant circumstances that led to accused him of stealing the scrapped steel metal provide that there is no sufficient basis for the finding of probable cause to file information against him for qualified theft. In fact, it is easy to infer from the factual milieu of the instant case the existence of all the elements necessary for the prosecution of the crime of qualified theft.

As defined, theft is committed by any person who, with intent to gain, but without violence against, or intimidation of neither persons nor force upon things, shall take the personal property of another without the latters consent. If committed with grave abuse of confidence, the crime of theft becomes qualified.

5. That with due respect to the Honorable Prosecutor, the undersigned believed that he committed error on the following:

On the first issue, petitioner avers that the prosecution failed to prove animus lucrandi (intent to gain) on his part. He asserts that he had been taking the tool box of scrapped metal from the property on his honest belief that he can sold the said metal and make profit thereof. . He points out that it was only after he took said metal bupon the authority of his co-worker on September 17, 2013 that he was charged of qualified theft. The fifth element is undisputed, while the last element, that the taking be done with grave abuse of confidence, is sufficiently shown by the affidavits of Lito Abul and Norvell Madrid own admission of the position he held at the Limjoco Contruction. A employees are entrusted with the possession of tools anfd materials of the

Construction due to the confidence reposed in them and as such they occupy positions of confidence.

It is the existence of the fourth elementthe taking be done without the owners consentthat is the crux of contention. While the appellate court, together with the DOJ and OCP, maintains the negative and equates the cumulative acts of the other employees as the consent of other in thekeeping such materials, this Court cannot find itself to sustain such opinion.

6. Attached as integral part of this petition are the following:

a) Proof of service of this Petition to the Honorable Prosecutor (Annex B) b) Proof of service of this Petition to the Appellee c) Other Records of the Case

WHEREFORE, the undersigned respectfully prayed of this Honorable court that this petition be given due course and after due hearing, a decision be rendered asbfollows; 1) Setting aside of the appealed resolution of Prosecutor dated on 7th of Ocober, 2013; 2) Ordering the private respondent to pay the costs of this suit plus attorneys fees. 3) Granting to the petitioner such other reliefs and remedies as may be jest and equitable in the premises. City of Las Pinas, 10th of October, 2013.

ATTY. ANDRES T. CREUS Counsel for Petitioners Notary Public for Las Pias City Garcia Building, Las Pias City Roll of Attorney 54321 IBP 54321; 04-17-09; MM PTR 09876; 04-17-09; MM MCLE Complianc

REPUBLIC OF THE PHILIPPINES) CITY OF MANILA )S.S

VERIFICATION

I, ANDRES T. CREUS, after first being duly sworn in accordance with law, hereby depose and state: 1, That, I am the counsel for the petitioner in the above-entiled case; 2. That, I have prepared the foregoing Petition for Review; 3. That, I have read the contents thereof and the same are true and correct to the best of my own knowledge and belief; 4. That copies of the decision herein sought to be reviewed (Annex A) of the respondent Office of the Prosecutor was received on October 5, 2013 and the Resolution denying petioners Motion for Reconsideration was received on October 8, 2013.

ANDRES T. CREUS Affiant

SUBSCRIBED AND SWORN to before me this 9th day of October, 2013, at City of Manila, Philippines.

Atty. MARIA LIGAYA T. MASAYA Notary Public for Las Pias City Antonio Building, Las Pias City Roll of Attorney 54321 IBP 54321; 04-17-09; MM PTR 09876; 04-17-09; MM MCLE Compliance

Doc. No. 1 Page No. 8 Book No. 22 Series of 2013

Copy furnished:

The Honorable Presiding Justice Department of Justice City of Manila

Atty. MARY JOY K. TAGLE Counsel of the Defendant Garcia Bldg. Kasoy St. Pamplona, Las Pinas City

Republic of the Philippines DEPARTMENT OF JUSTICE OFFICE OF THE CITY PROSECUTOR City of Las Pinas

PEOPLE OF THE PHILIPPINES, Plaintiff, Criminal case No. 12345-A For: Qualified Theft. Article 310 of the Revised Penal Code

-versus-

CHRISTOPHER AGUSTIN AVES, Accused. x---------------------------------------------x

MOTION FOR RECONSIDERATION

COMES NOW, the complainant by the undersigned attorney and within the reglementary period prescribed by the Rules of Court hereby files this motion for reconsideration from the issuance of the resolution of lack of probable cause by the judgement rendered by Prosecutor Honorio Talipan of Office of the Prosecutor by virtue of new vital witness which was not obtained during the trial of this case and if produce will substantially affect the decision of the Honorable Court, to wit:

1. On October 1, 2012, undersigned counsel for the Complainant received a copy of this Honorable Courts Resolution denying the complaint for Qualified theft. The dispositive portion of the Resolution states:

WHEREFORE, IN VIEW OF THE FOREGOING, that an information for the crime of Qualified theft filed against the respondent CHRISTOPHER AVES is lack of merit.

A copy of the Resolution is attached hereto as Annex A.

2. The denial of the petition on the following grounds:

a. 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, but concurrent with the general criminal intent which is an essential element of a felony of dolo (dolos malus). The animo being a state of the mind may be proved by direct or circumstantial evidence, inclusive of the manner and conduct of the accused before, during and after the taking of the personal property. General criminal intent is presumed or inferred from the very fact that the wrongful act is done since one is presumed to have willed the natural consequences of his own acts. Likewise, animus furandi is presumed from the taking of personal property without the consent of the owner or lawful possessor thereof. The same may be rebutted by the accused by evidence that he took the personal property under a bona fide belief that he owns the property.

b. The acts of Christopher and the relevant circumstances that led to accused him of stealing the scrapped steel metal provide that there is no sufficient basis for the finding of probable cause to file information against him for qualified theft. In fact, it is easy to infer from the factual milieu of the instant case the existence of all the elements necessary for the prosecution of the crime of qualified theft.

c. Moreover, the element of qualified theft was lacking since based on the respondents affidavit. And that the complainant did not pursue the said allegation

3. The complainant respectfully moves for the reconsideration of the above-cited resolution based on the following grounds:

a. While discretionary authority to determine probable cause in a preliminary

investigation to ascertain sufficient ground for the filing of information rests with the executive branch, such authority is far from absolute. It may be subject to review when it has been clearly used with grave abuse of discretion. And indeed, grave abuse of discretion attended the decision to drop the charges against Christopher as there was more than probable cause to proceed against him for qualified theft.

b. In fact, it is obvious from the jpint affidavits affidavits that he keep the
scrapped metal and make profis Indeed, as the his own testimony, ahe keep the tool box in the barracks becomes an evidence of intent to gain.

c. Taking this fact into consideration, it cannot be denied that the wheels of the
felony started turning days before of keeping and selling the metals. And the taking and profiting was a mere culmination of the crime that was commenced in Limjoco Construction.

PRAYER

WHEREFORE, it is most respectfully prayed that the instant petition be considered by the Honourable Court and further grant the complaint other relief be granted as shall be deemed just and equitable in the premises City of Las Pinas, October 05, 2013.

ANDRES T. CREUS 411 Paloma Building Pamplona, Las Pinas City

Copy hereof received by Ofiice of the Prosecutor, Las Pinas City this 5 th day of October, 2013.

ATTY. MARY JOY K. TAGLE Counsel for the Accused

ASST. FISCAL BALAGTAS BALAGTAS 1777 H. Liwasan, Manila

ANDRES T. CREUS Counsel for the Accused Notary Public Until December 31, 2013 PTR NO. 172208 Issued on January 17, 2013 at Las Pinas City