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ROBBERY WITH HOMICIDE and the dark thin man who stabbed Yap (“John Doe”).

From a surveillance
digital photo and video clip shown to him, Arca positively identified Abner
G.R. No. 209227, March 25, 2015 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
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CHARLIE Doe remained at large.
OROSCO, Accused-Appellant.
Dr. Belgira affirmed the findings in his Medico-Legal
DECISION Report5 stating:chanRoblesvirtualLawlibrary

VILLARAMA, JR., J.: TRUNK:


CONCLUSION:

On appeal is the Decision1 dated March 22, 2013 of the Court of Appeals The cause of death is hemorrhagic shock secondary to a stab wound of the
(CA) in CA-G.R. CR-HC No. 05171 which affirmed the Decision2 dated June trunk.cralawlawlibrary
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. 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,
Appellant, along with Abner Astor, “John Doe” and “Peter Doe,” were and found no other injuries such as defense wounds. 6cralawred
charged with Robbery with Homicide defined and penalized under Article
294 of the Revised Penal Code, as amended. The Information reads as For his defense, appellant testified that on the date and time of the
follows:chanRoblesvirtualLawlibrary 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
That on or about the 16th day of May, 2006, in the City of Legazpi, wife finished the laundry at past 3:00 p.m. He denied knowing Yap and his
Philippines, and within the jurisdiction of this Honorable Court, the above- co-accused Astor. While he admitted that he was a resident of Purok 4,
named accused, conspiring, confederating and helping one another, with Bgy. Rawis, his family transferred to their other house at Bigaa. He denied
intent of gain and by means of violence, did then and there [willfully], knowing Arca and he does not know of any motive for Arca to testify
unlawfully, feloniously and forcibly enter the store owned by one Lourdes against him. He worked in a copra company in Lidong but stopped
Yap situated at Purok 4, Barangay Rawis, Legazpi City, and once inside said reporting for work after May 16, 2006 as he was selling fish. He was
store, take, steal and carry away cash money, to the damage and prejudice arrested by the police at the rotunda in Legazpi when he was buying
of said Lourdes Yap, and by reason of or on occasion of said robbery, and medicine for his sick child.7cralawred
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 Appellant’s wife, Teresa Magdaong-Orosco also testified to confirm that at
[willfully], unlawfully and feloniously and taking advantage of their the time of the incident he was at their house while she was doing the
superior strength and with intent to kill, attack, assault and stab the laundry just adjacent to their house. On cross-examination, she was asked
aforesaid Lourdes Yap, thereby inflicting upon her injury which directly the distance between their place and Bgy. Rawis and she replied that it will
caused her untimely death, to the damage and prejudice of her legal heirs. take less than one hour from Bigaa to Rawis.8cralawred

CONTRARY TO LAW.3cralawred On June 24, 2011, the trial court rendered judgment convicting appellant
cralawlawlibrary of the crime charged, thus:chanRoblesvirtualLawlibrary

The factual scenario presented by the prosecution is based on the WHEREFORE, above premises considered, the Court hereby finds accused
eyewitness account of Albert M. Arca (Arca), the postmortem findings of Charlie Orosco GUILTY of the crime of robbery with homicide. He is
Sr. Pol. Chief Insp. Dr. James Margallo Belgira who conducted the autopsy hereby sentenced to suffer the penalty of reclusion perpetua, to pay the
on the cadaver of the victim, and the victim’s grandson, Ryan Francis Yap. 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.
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, Insofar as the other accused is concerned, the case is hereby sent to the
Legazpi City. He was buying ice but it was not yet hardened (frozen) so he archives, pending their eventual arrest.
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 So Ordered.9cralawlawlibrary
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 Appellant went to the CA but his appeal was dismissed. The CA upheld his
not P100. When Yap opened the door, the two men entered the store. conviction as it found no compelling reason to deviate from the factual
From outside the store and thru its open window grills, he saw one of the findings and conclusions of the trial court.
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 In this petition, appellant reiterates the arguments he raised before the CA
hands. He recognized the man who was holding the hands of Yap as Charlie that the trial court erred in giving credit to the uncorroborated eyewitness
Orosco (appellant), while he described the man who covered her mouth testimony of Arca who could not point to him during the trial, and that
as thin, with less hair and dark complexion. The latter stabbed Yap at the even granting that criminal charges may be imputed against him, it should
center of her chest. When they released her, she fell down on the floor. only be robbery and not the complex crime of robbery with homicide
Appellant then took a thick wad of bills from the base of the religious icon considering the fact that it was not him who stabbed Yap.
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 The appeal lacks merit.
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 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
Yap was brought to the Aquinas University Hospital but she was declared to convict an accused. The testimony of a sole witness, if found convincing
dead on arrival. Later, at the National Bureau of Investigation (NBI) and credible by the trial court, is sufficient to support a finding of guilt
Legazpi City District office, Arca gave descriptions of the faces of appellant beyond reasonable doubt. Corroborative evidence is necessary only when
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there are reasons to warrant the suspicion that the witness falsified the examination when he had apparently mustered enough courage to do so.
truth or that his observation had been inaccurate.10cralawred
Robbery with homicide is defined under Article 294 of the Revised Penal
In this case, both the trial and appellate courts found the testimony of the Code, as amended, which provides in part:chanRoblesvirtualLawlibrary
lone eyewitness, Arca, convincing notwithstanding that he was quite slow
in narrating the incident to the court and that he initially desisted from Art. 294. Robbery with violence against or intimidation of persons –
physically pointing to appellant as the one who held Yap’s hands from Penalties. – Any person guilty of robbery with the use of violence against
behind and took her money at the store after she was stabbed by or intimidation of any person shall suffer:
appellant’s cohort (John Doe).
1. The penalty of reclusion perpetua to death, when by reason or on
In his direct examination, Arca named appellant as one of those who occasion of the robbery, the crime of homicide shall have been committed,
robbed and killed Yap but refused to pinpoint him in open court, or when the robbery shall have been accompanied by rape or intentional
thus:chanRoblesvirtualLawlibrary mutilation or arson.cralawlawlibrary

The elements of the crime of robbery with homicide are: (1) the taking of
Arca continued with his testimony on how Yap was stabbed by appellant’s personal property is committed with violence or intimidation against
companion and appellant taking the thick wad of P1,000 bills before persons; (2) the property taken belongs to another; (3) the taking is done
fleeing along with the two lookouts. When asked for the fourth time to with animo lucrandi; and (4) by reason of the robbery or on the occasion
pinpoint appellant, Arca was still hesitant: 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)
cralawlawlibrary
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
At the next hearing, Arca was recalled to the witness stand and this time to the commission of the crime.17 In robbery with homicide, the original
he was able to pinpoint appellant as among those persons who robbed and criminal design of the malefactor is to commit robbery, with homicide
killed Yap, thus:chanRoblesvirtualLawlibrary 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
cralawlawlibrary take place before, during or after the robbery.18cralawred

Here, the homicide was committed by reason of or on the occasion of the


Assessing the identification made by Arca, the trial court concluded that robbery as appellant and John Doe had to kill Yap to accomplish their main
he had positively identified appellant as one of the perpetrators of the objective of stealing her money. The earlier verbal tussle where the two
robbery and killing of Yap, viz:chanRoblesvirtualLawlibrary 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
Here, Albert Arca, the prosecution’s main witness, positively identified earnings. To verify whether the cash payment was indeed a P500 or P100
accused Orosco as one of [the] two men who robbed and killed Lourdes bill, the victim let them enter the store but once inside they got hold of her
Yap on that fateful day. As observed by the trial court during the bail and stabbed her. Appellant, however, argues that if he had committed any
hearings, when asked to identify one of the men who robbed and killed the offense, it was only robbery since Arca testified that it was John Doe,
victim, Arca was trembling and constantly looking towards the direction whom he described as a thin man, who stabbed the victim.
of accused Orosco. Though simple-minded, Arca was well-aware of the
possible consequences his testimony could trigger. To the Court’s mind, We disagree.
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 The evidence presented by the prosecution clearly showed that appellant
of identifying Orosco as one of the perpetrators of the crime. As such, acted in conspiracy with his co-accused. Appellant and John Doe first
Arca’s act is sufficient identification already. 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
Later, when Arca was recalled to the stand to answer some additional Doe wrapping his arm around her neck while appellant held her hands at
questions, he was able to gather enough courage to point out to Orosco as the back. With the victim pressed between the two of them, John Doe
the man who held the hands of Lourdes Yap while his companion stabbed stabbed her once in her chest before releasing her. Once she fell down,
her. Arca stated that he was hesitant to identify and point out accused appellant quickly took the money placed at the altar inside the store and
earlier because he feared what Orosco might do to him. Incidentally, both fled together with John Doe and the two lookouts outside the store. All the
Orosco and his wife stated that they do know neither Albert Arca nor foregoing indicate the presence of conspiracy between appellant and his
Lourdes Yap. Thus, it appears that there is no reason whatsoever for Arca co-accused in the perpetration of robbery and killing of the victim.
to lie and attribute the crime to Orosco. Following settled jurisprudence,
Arca’s positive identification of Orosco prevails over the latter’s It must be stressed that appellant played a crucial role in the killing of the
alibi.14cralawlawlibrary 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
We find no compelling or cogent reason to deviate from the findings of the rendering the victim without any means of defending herself when John
trial court on its evaluation of Arca’s testimony. The well-settled rule in Doe stabbed her frontally in the chest. Having acted in conspiracy with his
this jurisdiction is that the trial court’s findings on the credibility of co-accused, appellant is equally liable for the killing of Yap.
witnesses are entitled to the highest degree of respect and will not be
disturbed on appeal without any clear showing that it overlooked, As we held in People v. Baron19cralawred
misunderstood or misapplied some facts or circumstances of weight or
substance which could affect the result of the case.15cralawred The concerted manner in which the appellant and his companions
perpetrated the crime showed beyond reasonable doubt the presence of
Appellant repeatedly harped on the hesitation of Arca to point to him at conspiracy. When a homicide takes place by reason of or on the occasion
the trial. However, as the trial court’s firsthand observation of said of the robbery, all those who took part shall be guilty of the special
witness’ deportment revealed, Arca’s fear of appellant sufficiently complex crime of robbery with homicide whether they actually
explains his initial refusal to point to him in open court during his direct participated in the killing, unless there is proof that there was an
examination. Arca was finally able to point to appellant as one of the endeavor to prevent the killing. There was no evidence adduced in this
perpetrators of the robbery and killing of Yap during his additional direct case that the appellant attempted to prevent the killing. Thus, regardless
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of the acts individually performed by the appellant and his co-accused, and under Article 294(1)4 of the Revised Penal Code (RPC), as amended, the
applying the basic principle in conspiracy that the “act of one is the act of accusatory portion of which reads:5chanRoblesvirtualLawlibrary
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. Crim. Case No. 03-211951
(Emphasis supplied)cralawlawlibrary
“That on or about March 22, 2002, in the City of Manila, Philippines, the
In sum, the CA did not err in affirming the conviction of appellant for said accused conspiring and confederating together with one whose true
robbery with homicide. Appellant was positively identified by name, real identity and present whereabouts are still unknown and
prosecution eyewitness Arca as among those who perpetrated the mutually helping each other, with intent to gain and by means of force,
robbery and killing of Yap at the latter’s store on May 16, 2006 in Bgy. violence and intimidation, to wit: by then and there poking a gun at one
Rawis, Legazpi City. This positive identification prevails over accused’s SPO1 RAYMUNDO B. MANAOIS, forcibly grabbing and snatching his Nokia
defense of alibi. As pointed out by the trial court, it was not physically 3210 cellular phone, did then and there wilfully, unlawfully and
impossible for appellant to be at the scene of the crime considering the feloniously take, rob and carry away the same valued at P6,000.00 against
presence of many public conveyances which would drastically cut the one his will, to the damage and prejudice of the said SPO1 RAYMUNDO B.
hour walk from Bigaa to Rawis to only a “couple of minutes.” 20cralawred MANAOIS in the aforesaid amount of P6,000.00 Philippine Currency;
thereafter shooting said SPO1 RAYMUNDO B. MANAOIS with an unknown
On the award of damages, the trial court was correct in sentencing caliber firearm, hitting him at the back, and as a result thereof, he
appellant to suffer the penalty of reclusion perpetua and ordering him to sustained mortal gunshot wound which was the direct and immediate
pay P75,000.00 as civil indemnity for the fact of death and P75,000.00 as cause of his death thereafter.
moral damages, conformably with prevailing jurisprudence.21 We also
find the award of exemplary damages in the amount of P30,000.00 proper CONTRARY TO LAW.”
due to the presence of the aggravating circumstances of treachery and
abuse of superior strength, though these were not alleged in the According to the prosecution, at around 8 o’clock in the evening of March
information. While an aggravating circumstance not specifically alleged in 22, 2002, SPO1 Raymundo B. Manaois (SPO1 Manaois) was on board his
the information (albeit established at trial) cannot be appreciated to owner-type jeepney with his wife Cristita and daughter Blesilda, and was
increase the criminal liability of the accused, the established presence of traversing Road 10, Tondo, Manila. While the vehicle was on a stop
one or two aggravating circumstances of any kind or nature entitles the position at a lighted area due to heavy traffic, two (2) male persons, later
offended party to exemplary damages under Article 2230 of the Civil on identified as Balute and a certain Leo Blaster (Blaster), suddenly
Code because the requirement of specificity in the information affected appeared on either side of the jeepney, with Balute poking a gun at the
only the criminal liability of the accused, not his civil liability. 22cralawred side of SPO1 Manaois and saying “putangina, ilabas mo!” Thereafter,
Balute grabbed SPO1 Manaois’s mobile phone from the latter’s chest
The aforesaid sums shall earn the legal interest at the rate of six percent pocket and shot him at the left side of his torso. SPO1 Manaois reacted by
(6%) per annum from the finality of judgment until full payment. 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
WHEREFORE, the appeal is DISMISSED. The Decision dated March 22, Johnston Hospital where he died despite undergoing surgical operation
2013 of the Court of Appeals in CA-G.R. CR-HC No. 05171 affirming the and medical intervention.6chanRoblesvirtualLawlibrary
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 In his defense, Balute denied having any knowledge of the charges against
as civil indemnity (P75,000.00), moral damages (P75,000.00) and him. He maintained, inter alia,that on March 22, 2002, he was at the shop
exemplary damages (P30,000.00) shall earn legal interest at the rate of of a certain Leticia Nicol (Nicol) wherein he worked as a pedicab welder
6% per annum from the finality of judgment until full payment. 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
With costs against the accused-appellant. entire time. Nicol corroborated Balute’s story, and imputed liability on
Blaster and a certain Intoy.7chanRoblesvirtualLawlibrary
SO ORDERED.cralawlawlibr
The RTC Ruling

G.R. No. 212932, January 21, 2015 In a Decision8 dated June 11, 2012, the RTC found Balute guilty beyond
reasonable doubt of the crime of Robbery with Homicide with the
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARNEL BALUTE Y aggravating circumstance of treachery, and accordingly, sentenced him to
VILLANUEVA, Accused-Appellant. 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
RESOLUTION 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%)
PERLAS-BERNABE, J.: per annum (p.a.) from the filing of the
Information.9chanRoblesvirtualLawlibrary
Before the Court is an ordinary appeal1 filed by accused-appellant It found that the prosecution was able to establish the existence of all the
ArnelBalutey Villanueva (Balute)assailing the Decision2 dated February 3, elements of Robbery with Homicide, as it proved that Balute poked his gun
2014 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 05649 which at SPO1 Manaois’s side, took his mobile phone, and shot him, resulting in
affirmed the Decision3 dated June 11, 2012 of the Regional Trial Court of the latter’s death. In this relation, the RTC gave credence to Cristita and
Manila, Branch 18 (RTC) in Crim. Case No. 03-211951, finding Baluteguilty Blesilda’s positive identification of Balute as the assailant, as compared to
beyond reasonable doubt of the special complex crime of Robbery with the latter’s mere denial and alibi.10chanRoblesvirtualLawlibrary
Homicide.cralawred
Aggrieved, Balute appealed to the CA.cralawred
The Facts
The CA Ruling
On November 22, 2002, an Information was filed before the RTC charging
Balute of the crime of Robbery with Homicide, defined and penalized In a Decision11 dated February 3, 2014, the CA affirmed Balute’s
conviction with modification in that: (a) the aggravating circumstance of
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treachery was no longer considered as the prosecution failed to allege the conform with prevailing jurisprudence.20 Further, the Court also awards
same in the Information;12(b) the civil indemnity was increased to exemplary damages in the amount of P30,000.00 in favor of the heirs of
P75,000.00 in view of existing jurisprudence;(c) the P6,000.00 SPO1 Manaois due to the highly reprehensible and/or outrageous conduct
compensatory damages, representing the value of the mobile phone, was of Balute in committing the aforesaid
deleted in the absence of competent proof of its value, and in lieu thereof, crime.21chanRoblesvirtualLawlibrarychanrobleslaw
actual damages in the aggregate amount of P140,413.53 representing
SPO1 Manaois’s hospital and funeral expenses was awarded to his heirs; WHEREFORE, the instant appeal is DENIED. The Decision dated February
and (d) all the monetary awards for damages are with interest at the rate 3, 2014 of the Court of Appeals in CA-G.R. CR-HC No. 05649 finding
of six percent (6%) p.a. from the date of finality of the CA Decision until accused-appellant ArnelBalutey Villanueva GUILTY beyond reasonable
fully paid.13chanRoblesvirtualLawlibrary doubtof the crime of Robbery with Homicide defined and penalized under
Article 294 (1) of the Revised Penal Code, as amended, is
Hence, the instant appeal.cralawred hereby AFFIRMED with MODIFICATION in that he is sentenced to suffer
the penalty of reclusion perpetua, without eligibility for parole, and is
The Issue Before the Court 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
The lone issue for the Court’s resolution is whether or not the CA correctly P75,000.00 as moral damages, and P30,000.00 as exemplary damages, all
upheld Balute’s conviction for Robbery with Homicide. with legal interest at the rate of six percent(6%) per annum from the
finality of judgment until full payment.
The Court’s Ruling
SO ORDERED.cralawlawlibrary
The appeal is bereft of merit.
G.R. No. 171526 : September 1, 2010
It must be stressed that in criminal cases, factual findings of the trial court
are generally accorded great weight and respect on appeal, especially RODEL CRISOSTOMO, Petitioner, v. PEOPLE OF THE
when such findings are supported by substantial evidence on record. It is PHILIPPINES,Respondent.
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, DECISION
the Court finds no cogent reason to disturb the RTC’s factual findings, as
affirmed by the CA. DEL CASTILLO, J.:

In People v. Ibañez,15 the Court exhaustively explained that “[a] special


complex crime of robbery with homicide takes place when a homicide is For review under Rule 45 of the Rules of Court is the
committed either by reason, or on the occasion, of the robbery. To sustain Decision1cralaw dated September 22, 2005 of the Court of Appeals in CA-
a conviction for robbery with homicide, the prosecution must prove the G.R. CR.-H.C. No. 01192, affirming with modification the
following elements: (1) the taking of personal property belonging to Decision2cralaw rendered by the Regional Trial Court of Malolos, Bulacan,
another; (2) with intent to gain; (3) with the use of violence or Branch 12, in Criminal Case No. 1632-M-2001, finding petitioner Rodel
intimidation against a person; and (4) on the occasion or by reason of the Crisostomo guilty beyond reasonable doubt of the complex crime of
robbery, the crime of homicide, as used in its generic sense, was Robbery with Homicide.
committed. A conviction requires certitude that the robbery is the main
purpose, and [the] objective of the malefactor and the killing is merely Factual Antecedents
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 The Information filed against petitioner and his two companions
robbery.”16 Homicide is said to have been committed by reason or on designated only as John Doe and Peter Doe contained the following
occasion of robbery if, for instance, it was committed: (a) to facilitate the accusatory allegations:chanroblesvirtuallawlibrar
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 That on or about the 12th day of February, 2001, in the municipality of San
crime.17chanRoblesvirtualLawlibrary Miguel, province of Bulacan, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and helping one
In the instant case, the CA correctly upheld the RTC’s finding that the another, armed with a gun, did then and there willfully, unlawfully and
prosecution was able to establish the fact that Balute poked his gun at feloniously, with intent [to] gain and by means of force, violence and
SPO1 Manaois, took the latter’s mobile phone, and thereafter, shot him, intimidation upon person, enter the gasoline station owned by Jose
resulting in his death despite surgical and medical intervention. This is Buencamino and once inside, take, rob and carry away with
buttressed by Cristita and Blesilda’s positive identification of Balute as the them P40,000.00, belonging to the said Jose Buencamino, to the damage
one who committed the crime as opposed to the latter’s denial and alibi and prejudice of the latter in the amount of P40,000.00, and on the
which was correctly considered by both the RTC and the CA as weak and occasion of the commission of the said robbery or by reason thereof, the
self-serving, as it is well-settled that “alibi and denial are outweighed by herein accused, in furtherance of their conspiracy, did then and there
positive identification that is categorical, consistent and untainted by any willfully, unlawfully and feloniously, attack, assault and shoot Janet
ill motive on the part of the [eyewitnesses] testifying on the matter.”18 This Ramos, cashier of said gasoline station, thereby inflicting on her serious
is especially true when the eyewitnesses are the relatives of the victim – physical injuries which directly caused her death.
such as Cristita and Blesilda who are the wife and daughter of SPO1
Manaois, respectively – since “[t]he natural interest of witnesses, who are Contrary to law.3cralaw
relatives of the victim, in securing the conviction of the guilty would
actually deter them from implicating persons other than the true
culprits.”19chanRoblesvirtualLawlibrary During his arraignment, petitioner entered a plea of not
guilty.4cralaw Thereafter, trial ensued.
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 Version of the Prosecution
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
On February 12, 2001, at around 12:20 in the afternoon, Rodelio In VIEW OF ALL THE FOREGOING, the appealed decision is AFFIRMED,
Pangilinan (Rodelio) was working at a gasoline station owned by Jose with a modification that the awarded civil indemnity is reduced
Buencamino (Jose) at Buliran, San Miguel, Bulacan. He was by the gasoline from P75,000.00 to P50,000,00. Costs de oficio.
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 SO ORDERED.9cralaw
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 Issue
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 Before us, the petitioner assails the Decision of the CA and raises the
her head. The two armed men returned to their companion waiting by the following issue:chanroblesvirtuallawlibrar
motorcycle and together sped away from the scene of the crime.
WHETHER X X X THE X X X COURT OF APPEALS COMMITTED ERROR IN
Rodelio gave a description of the driver of the motorcycle but not of the NOT HOLDING THAT THE TRIAL COURT GRIEVOUSLY ERRED IN THE
two armed men who entered the cashier's office since they had their backs APRPECIATION OF FACTS AND APPLYING THE LAW IN CONVICTING
turned to him. The National Bureau of Investigation (NBI) prepared a ACCUSED OF ROBBERY WITH HOMICIDE.10cralaw
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 Our Ruling
as funeral expenses.
The petition is unmeritorious.
On February 23, 2001, the petitioner was detained after being implicated
in a robbery that occurred in San Miguel, Bulacan. During his detention, The trial court properly denied the motion for inhibition.
Rodelio and another gasoline boy arrived and identified him in a police
lineup as one of the three robbers who killed Janet.
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
Version of the Defense land dispute. Petitioner alleges that the case rendered the trial judge
partial, biased and, thus, incapable of rendering a just and wise decision.
Petitioner denied committing the crime for which he was charged. He
maintained that the face of the man depicted in the cartographic sketch by We are not convinced. It must be stressed that as a rule, "a motion to
the NBI was completely different from his appearance in the police lineup inhibit must be denied if filed after x x x the Court had already given its
in which Rodelio pointed at him as one of the perpetrators. He argued that opinion on the merits of the case, the rationale being that 'a litigant cannot
the only reason why Rodelio pointed to him in the police lineup was be permitted to speculate upon the action of the court x x x (only to) raise
because he was the only one in handcuffs. an objection of this sort after a decision had been
rendered'."11cralaw Here, petitioner's Motion for Reconsideration and
Ruling of the Regional Trial Court 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
The trial court rendered its Decision convicting petitioner of robbery with inhibit as it came after the case had been decided on the merits.
homicide. The dispositive portion reads:chanroblesvirtuallawlibrar
Further, in a motion for inhibition, "[t]he movant must x x x prove the
WHEREFORE, finding herein accused RODEL CRISOSTOMO y DE LEON ground of bias and prejudice by clear and convincing evidence to
guilty as principal beyond reasonable doubt of the crime of robbery with disqualify a judge from participating in a particular trial." 14cralaw "Bare
homicide as charged, there being no circumstances, aggravating or allegations of partiality x x x [is not sufficient] in the absence of clear and
mitigating, found attendant in the commission thereof, he is hereby convincing evidence to overcome the presumption that the judge will
sentenced to suffer the penalty of reclusion perpetua, to indemnify the undertake his noble role to dispense justice according to law and evidence
heirs of victim Janet Ramos in the amount of P75,000.00, the owner or and without fear or favor."15cralaw Petitioner's bare allegations in his
operator, Jose Buencamino, Jr., of the gasoline station that was robbed, in motion to inhibit are not adequate grounds for the disqualification or
the amount of P40,000.00 plus P14,500.00 as funeral expenses (Exh. "H") inhibition of the trial judge. Thus, credence should not be given to the issue
defrayed by said owner for its cashier Janet Ramos, as actual damages, and of alleged prejudice and partiality of the trial judge.
to pay the costs of the proceedings.
Petitioner is guilty of the complex crime of robbery with homicide.
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. 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
SO ORDERED.5cralaw 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
Not satisfied, petitioner filed a Motion for Reconsideration and the occasion or by reason of the robbery, the crime of homicide, as used in
Inhibition,6cralawwhich was denied by the trial court in an its generic sense, was committed. A conviction requires certitude that the
Order7cralaw dated January 13, 2003. 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
Ruling of the Court of Appeals robbery."16cralaw

Upon review of the case pursuant to this Court's ruling in People v. In this case, the prosecution successfully adduced proof beyond
Mateo,8cralawthe CA affirmed with modification the conviction of reasonable doubt that the genuine intention of the petitioner and his
petitioner. The dispositive portion of the CA's Decision companions was to rob the gasoline station. Rodelio testified that at
reads:chanroblesvirtuallawlibrar
Page 5 of 71
around 12:20 in the afternoon of February 12, 2001, the petitioner and his co-accused, this "is but normal and does not by itself affect [his]
companions arrived on board a motorcycle at the gas station located at credibility."21cralaw
Buliran, San Miguel, Bulacan. While the petitioner stayed on the
motorcycle, his companions entered the cashier's office. One of them The petitioner also avers that he was not the person depicted in the
pulled out a fan knife while the other fired his gun at Janet. After divesting cartographic sketch. However, "a cartographic sketch, unlike a
the amount of P40,000.00, the man with the gun fired a fatal shot to the photograph, is only intended to give the law enforcers a general idea of the
head of Janet. The petitioner's companions returned to and boarded their likeness of a suspect and is never expected to exactly resemble his actual
motorcycle, and sped away together.17cralaw facial appearance. Even the description of the suspect given in the
cartographic sketch may not be unerringly exact."22cralaw What is
From the foregoing, it is clear that the overriding intention of the important is the fact that the petitioner was positively identified by
petitioner and his cohorts was to rob the gasoline station. The killing was Rodelio as the perpetrator of the crime even without a moustache and
merely incidental, resulting by reason or on occasion of the robbery. curly hair.

The petitioner attempts to discredit Rodelio, the eyewitness presented by We are not likewise impressed with petitioner's assertion that the case
the prosecution, by asserting that his testimony is in conflict with the against him was weakened with the failure to present Reinerio, the other
statements in his affidavit. In his testimony, Rodelio said that it was one of eyewitness to the commission of the crime and one of the prosecution's
the men who entered the cashier's office who was holding a gun while in proposed witnesses. As a rule, "the prosecution has the exclusive
his sworn statement, he alleged that petitioner had a .45 caliber pistol prerogative to determine whom to present as witnesses. [It] need not
which was poked at him. 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
Such an argument fails to impress as discrepancies between sworn beyond reasonable doubt."23cralaw Here, the testimony of Reinerio would
statements and testimonies made at the witness stand do not necessarily merely corroborate the statements of Rodelio on the witness stand, which
discredit the witness. "Sworn statements/affidavits are generally when considered together with the other evidence presented by the
subordinated in importance to open court declarations because the prosecution, established beyond reasonable doubt the culpability of the
former are often executed when the affiant's mental faculties are not in petitioner and his cohorts. Further, there is nothing on record which
such a state as to afford him a fair opportunity of narrating in full the would show that Rodelio was actuated by ill motive or hate in imputing a
incident which transpired. Testimonies given during trials are much more serious offense of robbery with homicide against the petitioner.
exact and elaborate. Thus, testimonial evidence carries more weight than
sworn statements/affidavits."18cralaw We are also not impressed with the petitioner's insistence that his
identification in the police lineup was highly irregular. There is simply no
"Further, to the extent that inconsistencies were in fact shown, they factual basis to prove that he was the only suspect in the lineup with
appear to [this] Court to relate to details of peripheral significance which handcuffs that prompted Rodelio to point to him as the suspect. It is worth
do not negate or dissolve the positive identification [by the eyewitness of stressing that the police investigators are presumed to have performed
the petitioner and his co-accused] as the perpetrators of the their duties regularly and in good faith.24cralaw In the absence of
crime."19cralaw sufficient proof to overturn this presumption, petitioner's positive
identification by Rodelio remains free from any stain of wrongdoing.

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 Besides, not only did Rodelio identify the petitioner in the police lineup,
and his cohorts. During cross-examination, Rodelio explained that his he also positively identified petitioner when he testified in court.
failure to respond immediately to the subpoena was because he does not
know how to go to court. Thus:chanroblesvirtuallawlibrar The petitioner's contention that he did not conspire with the other
accused in the commission of the crime cannot be given credence. There
Q: Why did you fail to appear before this Honorable Court when you were is no doubt that the petitioner participated actively in the commission of
first summoned to appear before this court? 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
A: Because my employer was sick, sir. 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
COURT:chanroblesvirtuallawlibrar from the scene of the crime in each other's company using the same
motorcycle.
Q: Who was that employer?
Against the testimony of the prosecution's eyewitness, the petitioner
could only rely on the defense of denial. This defense, however, deserves
A: Ping Buencamino, your Honor. scant consideration since "denial cannot prevail over the positive
testimony of a witness. A mere denial, just like alibi, is a self-serving
ATTY. KLIATCHKO:chanroblesvirtuallawlibrar negative evidence which cannot be accorded greater evidentiary weight
than the declaration of credible witnesses who [testified] on affirmative
matters."25cralaw
Q: Assuming that he is sick why did you not go to this Honorable Court?

A: I have no companion. I have no idea. "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
Q: You have no idea about what? 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
A: I do not know how to come to this court, sir. 20cralaw 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
Even assuming that Rodelio was initially reluctant to testify and get the killing."26cralaw There was no evidence adduced in this case that
involved in the ensuing criminal prosecution against the petitioner and his petitioner attempted to prevent his companions from shooting the victim.
Page 6 of 71
"Thus, regardless of the acts individually performed by [the petitioner] at Barangay Guinayan, San Mateo, Rizal, were on duty when a mint green-
and his co-accused, and applying the basic principle in conspiracy that the colored Tamaraw FX arrived for service at the said gasoline station. [3]
'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- Eduardo Zulueta was the one who attended to the said vehicle.
accused] are one and the same."27cralaw 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
The Proper Penalty 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 crime of robbery with homicide is punishable under Article 294 (as the key, the driver told him that the engine of the vehicle would not
amended by Republic Act No. 7659) of the Revised Penal Code by start.[4] Eduardo Zulueta offered to give the vehicle a push. While Eduardo
reclusion perpetua to death. Article 6328cralaw of the Revised Penal Code Zulueta and fellow gasoline boy Fortunato Lacambra III were positioned
states that when the law prescribes a penalty consisting of two indivisible at the back of the vehicle, ready to push the same, the six male passengers
penalties, and the crime is neither attended by mitigating nor aggravating of the same vehicle, except the driver, alighted and announced a hold-up.
circumstances, the lesser penalty shall be imposed. Considering that no They were armed with a shotgun and .38 caliber pistol.[5]
modifying circumstance was proven to have attended the commission of
the crime, the trial court correctly sentenced the petitioner to suffer the Fortunato Lacambra III was ordered to lie down,[6] while
penalty of reclusion perpetua.29cralaw Eduardo Zulueta was directed to go near the Car Wash Section. [7] At that
instance, guns were poked at them.[8]
The Civil Liabilities
Appellant, who guarded Eduardo Zulueta, poked a gun at the
latter and took the latter's wallet containing a pawnshop ticket
In robbery with homicide, civil indemnity and moral damages in the and P50.00, while the companion of the former, hit the latter on his nape
amount of P50,000.00 each is granted automatically in the absence of any with a gun.[9]
qualifying aggravating circumstances.30cralaw These awards are
mandatory without need of allegation and evidence other than the death Meanwhile, four members of the group went to the cashier's
of the victim owing to the fact of the commission of the crime. In this case, office and took the money worth P3,000.00.[10] Those four robbers were
the CA properly awarded the amount of P50,000.00 as civil indemnity. In also the ones who shot Edralin Macahis in the stomach. [11] Thereafter, the
addition, we also award the amount of P50,000.00 as moral same robbers took Edralin Macahis' service firearm. [12]
damages.31cralaw
After he heard successive gunshots, Eduardo Zulueta saw
To be entitled to compensatory damages, it is necessary to prove the appellant and his companions immediately leave the place.[13] The robbers
actual amount of loss with a reasonable degree of certainty, premised boarded the same vehicle and proceeded toward San Mateo,
upon competent proof and the best evidence obtainable to the injured Rizal.[14] When the robbers left, Eduardo Zulueta stood up and found
party. "[R]eceipts should support claims of actual Julieta Amistoso, who told him that the robbers took her bag and
damages."32cralaw Thus, as correctly held by the trial court and affirmed jewelry. He also saw that Edralin Macahis had a gunshot wound in the
by the CA, the amount of P14,500.00 incurred as funeral expenses can be stomach. He immediately hailed a vehicle which transported the injured
sustained since these are expenditures supported by receipts. Also, the Edralin Macahis to the hospital.[15] Later on, Edralin Macahis died at the
courts below correctly held petitioner liable to return the amount hospital due to the gunshot wound.[16]
of P40,000.00 which was stolen from the gas station before the victim was
shot and killed. The following day, Eduardo Zulueta identified appellant as one
of the robbers who poked a gun at him.[17]
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 However, according to appellant, from January 4 to 6, 2000, he
stayed at the house of his Tita Emma at Pantok, Binangonan, Rizal, helping
Court of Malolos, Bulacan, Branch 12, in Criminal Case No. 1632-M-2001
the latter in her canteen. On the evening of January 6, at approximately 9
is AFFIRMED with further MODIFICATION that petitioner is hereby
o'clock, appellant asked permission from his Tita Emma to go to
ordered to pay the heirs of the victim moral damages in the amount
of P50,000.00. 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
SO ORDERED. appellant and Catherine Homo, passed by. Catherine Homo asked
Christian Gersalia if he would allow appellant to hitch a ride on his
People of the Philippines vs. Marlon Albert De leon vehicle. Christian Gersalia agreed. Aside from Christian Gersalia, there
were other passengers in the said vehicle.[18]
DECISION
When the vehicle reached Masinag, where appellant was
supposed to alight, he was not allowed to do so; instead, he was asked by
PERALTA, J.: 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-
This is an appeal from the Decision[1] of the Court of Appeals up. He never left the vehicle and was not able to do anything because he
(CA), affirming with modification the Decision[2] of the Regional Trial was overwhelmed with fear. After he heard the gunshots, Christian
Court (RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon Gersalia and the other passengers went to the vehicle and proceeded
Lambert De Leon y Homo guilty beyond reasonable doubt of the crime of towards Marikina. On their way, they were followed by policemen who
robbery with homicide. 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
The factual and procedural antecedents are as follows: in different directions leaving him behind. When the policemen arrived,
he was immediately arrested.[19]
According to the prosecution, in the early morning, around 2
o'clock of January 7, 2000, Eduardo Zulueta and Fortunato Lacambra III, As a result of the above incident, four Informations for Robbery
both gasoline boys; Julieta Amistoso, cashier; and Edralin Macahis, with Homicide were filed against appellant, Rudy Gersalia, Christian
security guard; all employees of Energex Gasoline Station, located Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, an
Page 7 of 71
alias Rey, an alias Jonard, an alias Precie, and an alias Renato, which read Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias
as: Renato, whose true names, identities and present whereabouts
are still unknown and still at-large, did then and there willfully,
Criminal Case No. 4747 unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline
That on or about the 7th day of January 2000, in the Station, thereby inflicting upon him gunshot wound on his trunk
Municipality of San Mateo, Province of Rizal, Philippines, and which directly caused his death.
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together with Contrary to law.
Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato whose true names, identities and Criminal Case No. 4749
present whereabouts are still unknown and still at-large, and
conspiring and mutually helping and assisting one another, That on or about the 7th day of January 2000, in the
while armed with unlicensed firearms and acting as a band, with Municipality of San Mateo, Province of Rizal, Philippines and
intent of gain with aggravating circumstances of treachery, within the jurisdiction of this Honorable Court, the above-
abuse of superior strength and using disguise, fraud or craft and named accused, conspiring and confederating together with
taking advantage of nighttime, and by means of motor vehicle Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
and by means of force, violence and intimidation, employed Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
upon ENERGEX GASOLINE STATION, owned by Regino C. Precie and Alias Renato, whose true names, identities and
Natividad, and represented by Macario C. Natividad, did then present whereabouts are still unknown and still at-large, and
and there willfully, unlawfully and feloniously rob, steal and conspiring and mutually helping and assisting one another,
carry away its cash earnings worth P3,000.00, to the damage while armed with unlicensed firearms and acting as a band, with
and prejudice of said Energex Gasoline Station in the aforesaid intent of gain, with aggravating circumstances of treachery,
amount of P3,000.00 and on the occasion of the said robbery, abuse of superior strength and using disguise, fraud or craft and
the above-named accused, while armed with unlicensed taking advantage of nighttime, and by means of a motor vehicle
firearms with intent to kill, conspiring and confederating and by means of force, violence and intimidation, employed
together with Rudy Gersalia, Christian Gersalia, Dondon upon EDRALIN MACAHIS, a Security Guard of Energex Gasoline
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Station, did then and there willfully, unlawfully and feloniously
Alias Jonard, Alias Precie and Alias Renato, whose true names, rob, steal, and carry away his service firearm .12 gauge shotgun
identities and present whereabouts are still unknown and still with serial number 13265 valued at P12,000.00 owned by Alert
at-large, did then and there willfully, unlawfully and feloniously and Quick (A-Q) Security Services Incorporated represented by
attack, assault and shoot one EDRALIN MACAHIS, a Security its General Manager Alberto T. Quintos to the damage and
Guard of Energex Gasoline Station, thereby inflicting upon him prejudice of said Alert and Quick (A-Q) Security Services
gunshot wound on his trunk which directly caused his death. Incorporated in the aforesaid amount of P12,000.00 and on the
occasion of the said robbery the above-named accused, while
Contrary to law. armed with unlicensed firearms, with intent to kill conspiring
and confederating together with Rudy Gersalia, Christian
Criminal Case No. 4748 Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy
Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato,
That on or about the 7th day of January 2000 in the whose true names, identities and present whereabouts are still
Municipality of San Mateo, Province of Rizal, Philippines and unknown and still at-large, did then and there willfully,
within the jurisdiction of this Honorable Court, the above- unlawfully and feloniously attack, assault and shoot one
named accused, conspiring and confederating , together with EDRALIN MACAHIS, thereby inflicting upon him gunshot wound
Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan on his trunk which directly caused his death.
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and Contrary to law.
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 Criminal Case No. 4750
intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and That on or about the 7th day of January 2000, in the
taking advantage of nighttime, and by means of a motor vehicle Municipality of San Mateo, Province of Rizal, Philippines, and
and by means of force, violence and intimidation, employed within the jurisdiction of this Honorable Court, the above-
upon the person of JULIETA A. AMISTOSO, the Cashier of named accused, conspiring and confederating together with
Energex Gasoline Station, did then and there willfully, Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
unlawfully and feloniously rob, steal and carry away the Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
following, to wit: Precie and Alias Renato, whose true names, identities and
present whereabouts are still unknown and still at-large and
a) One (1) ladies ring with sapphire stone valued conspiring and mutually helping and assisting one another,
at P1,500.00 while armed with unlicensed firearms and acting as a band, with
b) One (1) Omac ladies wristwatch valued intent of gain, with aggravating circumstances of treachery,
at P2,000.00 abuse of superior strength and using disguise, fraud or craft and
c) Guess black bag valued at P500.00 taking advantage of nighttime, and by means of a motor vehicle
d) Leather wallet valued at P150.00 and by means of force, violence and intimidation, employed
e) White T-Shirt valued at P175.00 upon the person of EDUARDO ZULUETA, a gasoline boy of
Energex Gasoline Station, did then and there willfully,
to her damage and prejudice in the total amount of P4,325.00 unlawfully and feloniously rob, steal and carry away the
and on the occasion of the said robbery, the above-named following to wit:
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
a) Pawnshop Ticket from M. Lhuiller under No. 1 of Art. 294 of the Revised Penal Code, as amended
Pawnshop for one (1) black Citizen men's watch by Sec. 9 of R.A. 7659, in relation to Sec. 1 ofP.D. 1866, as further
(automatic) valued at P2,000.00 amended by Sec. 1 of R.A. 8294, having acted in conspiracy with
other malefactors who have, to date, remained at-large, and
b) Cash money worth P50.00 sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an
to his damage and prejudice in the total amount of P2,050.00 unlicensed firearm in the commission of the crime as an
and on the occasion of the said robbery, the above-named aggravating circumstance; to indemnify the heirs of Edralin
accused, while armed with unlicensed firearms with intent to Macahis in the amount of P50,000.00 as death indemnity; to
kill, conspiring and confederating together with Rudy Gersalia, pay P12,000.00 as compensatory damages for the stolen service
Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, firearm if restitution is no longer possible and P50,000.00 as
Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias moral damages, and to pay the costs;
Renato, whose true names, identities and present whereabouts 4. In Crim. Case No. 4750, finding accused Marlon
are still unknown and still at-large, did then and there willfully, Albert de Leon y Homo guilty beyond reasonable doubt of the
unlawfully and feloniously attack, assault and shoot one crime of Robbery with Homicide, as defined and penalized
EDRALIN MACAHIS, a Security Guard of Energex Gasoline under No. 1 of Art. 294 of the Revised Penal Code, as amended
Station, thereby inflicting upon him gunshot wound on his trunk by Sec. 9 of R.A 7659, in relation to Sec. 1 of P.D. 1866, as further
which directly caused his death. amended by Sec. 1 of R.A. 8294, having acted in conspiracy with
other malefactors who have, to date, remained at-large, and
Contrary to law. 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
Upon arraignment on March 23, 2000, appellant, with the aggravating circumstance and to pay Eduardo Zulueta, victim of
assistance of counsel de parte, entered a plea of not guilty on all the the robbery, in the amount of P2,050.00 as compensatory
charges.Thereafter, trial on the merits ensued. damages for the stolen properties if restitution is no longer
possible and to pay the costs.
The prosecution presented five witnesses, namely: Macario C.
Natividad,[20] then officer-in-charge of Energex Gasoline Station where the As against accused Rudy Gersalia and Christian
incident took place; Edito Macahis,[21] a cousin of the deceased security Gersalia, who have, to date, remained at-large, let a warrant of
guard Edralin Macahis; Fortunato Lacambra III, [22] a gasoline boy of the arrest be issued against them and let these cases be, in the
same gas station; Eduardo Zulueta,[23] also a gasoline boy of the same gas meantime, sent to the archives without prejudice to their
station, and Alberto Quintos,[24] general manager of Alert and Quick reinstatement upon apprehension of the said accused.
Security Services, Inc., where the deceased security guard was employed.
As against accused Dondon Brenvuela, Jonathan
The defense, on the other hand, presented two witnesses, Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
namely: Catherine Homo,[25] a cousin of appellant and the Precie and Alias Renato, whose true names, identities and
appellant[26]himself. present whereabouts are still unknown and are still at-large, let
these cases be, in the meantime, sent to the archives without
On December 20, 2001, the RTC rendered its prejudice to their reinstatement upon the identification and
Decision[27] convicting appellant beyond reasonable doubt of all the apprehension of the said accused.
charges against him, the dispositive portion of which reads:
SO ORDERED.
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 The cases were appealed to this Court, however, on September,
under No. 1 of Art. 294 of the Revised Penal Code, as amended 21, 2004,[28] in conformity with the Decision dated July 7, 2004 in G.R. Nos.
by Sec. 9 of R.A. 7659, in relation to Sec. 1 ofP.D. 1866, as further 147678-87 entitled The People of the Philippines v. Efren Mateo y Garcia,
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with modifying the pertinent provisions of the Revised Rules of Criminal
other malefactors who have, to date, remained at-large, and Procedure, more particularly Sections 3 and 10 of Rule 125 and any other
sentencing the said Marlon Albert de Leon y Homo to the rule insofar as they provide for direct appeals from the RTCs to this Court
penalty of Death, taking into consideration the use of an in cases where the penalty imposed is death, reclusion perpetua or life
unlicensed firearm in the commission of the crime as an imprisonment, as well as the Resolution of this Court, en banc dated
aggravating circumstance; to pay Energex Gasoline Station September 19, 1995, in Internal Rules of the Supreme Court in cases
owned by Regino Natividad and represented by Macario C. similarly involving the death penalty, pursuant to the Court's power to
Natividad the amount of P3,000.00 as compensatory damages promulgate rules of procedure in all courts under Article VII, Section 5 of
and to pay the costs; the Constitution, and allowing an intermediate review by the CA before
such cases are elevated to this Court. This Court transferred the cases to
2. In Crim. Case No. 4748, finding accused Marlon the CA for appropriate action and disposition.
Albert de Leon y Homo guilty beyond reasonable doubt of the The CA, on June 29, 2007,[29] affirmed with modification, the
crime of Robbery with Homicide, as defined and penalized Decision of the RTC, with the dispositive portion reading:
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 WHEREFORE, the appealed decision is AFFIRMED
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with with MODIFICATION. Accused Marlon Albert de Leon y Homo is
other malefactors who have, to date, remained at-large, and hereby found guilty beyond reasonable doubt of the crime of
sentencing the said Marlon Albert de Leon y Homo to the Robbery with Homicide of only one count.
penalty of Death, taking into consideration the use of an
unlicensed firearm in the commission of the crime as an Given the passage of Republic Act 9346 which took
aggravating circumstance, and to pay the costs; effect on 24 June 2006, the penalty imposed upon Marlon de
Leon y Homo is hereby reduced or commuted to reclusion
3. In Crim. Case No. 4749, finding accused Marlon perpetua.
Albert de Leon y Homo guilty beyond reasonable ground of the
crime of Robbery with Homicide, as defined and penalized SO ORDERED.
Page 9 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
On December 10, 2007, this Court accepted the appeal, [30] the homicide through reckless imprudence or simple negligence.
penalty imposed being reclusion perpetua. The constitutive elements of the crime, namely, robbery with
homicide, must be consummated.
The Office of the Solicitor General (OSG), on February 8, 2008,
filed its Manifestation and Motion In Lieu of the Supplemental It is immaterial that the death would supervene by
Brief[31] dated February 4, 2008 stating that it will no longer file a mere accident; or that the victim of homicide is other than the
supplemental brief, considering that appellant has not raised any new victim of robbery, or that two or more persons are killed, or that
issue that would require the filing of a supplemental brief. aside from the homicide, rape, intentional mutilation, or
usurpation of authority, is committed by reason or on the
Appellant filed a Manifestation[32] on February 22, 2008 stating occasion of the crime. Likewise immaterial is the fact that the
that he re-pleads and adopts his Appellant's Brief and Reply Brief as victim of homicide is one of the robbers; the felony would still
Supplemental Brief. be robbery with homicide. Once a homicide is committed by or
on the occasion of the robbery, the felony committed is robbery
Appellant, in his Brief,[33] assigned the following errors: with homicide. All the felonies committed by reason of or on the
I occasion of the robbery are integrated into one and indivisible
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED- felony of robbery with homicide. The word homicide is used in
APPELLANT A CO-CONSPIRATOR IN THE COMMISSION OF THE its generic sense. Homicide, thus, includes murder, parricide,
CRIME CHARGED DESPITE THE FAILURE OF THE and infanticide.
PROSECUTION TO PROVE THE SAME AND GUILT BEYOND
REASONABLE DOUBT. Intent to rob is an internal act, but may be inferred
from proof of violent unlawful taking of personal property.
II When the fact of asportation has been established beyond
reasonable doubt, conviction of the accused is justified even if
ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY the property subject of the robbery is not presented in court.
OF ROBBERY WITH HOMICIDE, THE TRIAL COURT GRAVELY After all, the property stolen may have been abandoned or
ERRED IN IMPOSING FOUR (4) DEATH PENALTIES DESPITE thrown away and destroyed by the robber or recovered by the
THAT THE CRIME CHARGED WAS PRODUCED BY ONE SINGLE owner.[41] The prosecution is not burdened to prove the actual
ACT WHICH SHOULD BE METED WITH A SINGLE PENALTY. 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
The OSG, in its Appellee's Brief,[34] insisted that all the elements can exist regardless of the exact amount or value involved. [42]
of the crime and the appellant's participation in the crime had been
established. When homicide is committed by reason or on the
occasion of robbery, all those who took part as principals in the
Appellant, in his Reply Brief,[35] argued that the penalty should robbery would also be held liable as principals of the single and
not be death, but only reclusion perpetua, because the aggravating indivisible felony of robbery with homicide, although they did
circumstance of use of unlicensed firearm, although alleged in the not actually take part in the killing, unless it clearly appears that
Information, was not alleged with specificity. they endeavored to prevent the same.[43]

Article 294, paragraph 1 of the Revised Penal Code provides: If a robber tries to prevent the commission of
homicide after the commission of the robbery, he is guilty only
Art. 294. Robbery with violence against or intimidation of robbery and not of robberywith homicide. All those who
of persons Penalties. - Any person guilty of robbery with the use of conspire to commit robbery with homicide are guilty as
violence against or any person shall suffer: principals of such crime, although not all profited and gained
from the robbery. One who joins a criminal conspiracy adopts
1. The penalty of reclusion perpetua to death, when by the criminal designs of his co-conspirators and can no longer
reason or on occasion of the robbery, the crime of homicide shall repudiate the conspiracy once it has materialized. [44]
have been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson. Homicide is said to have been committed by reason or
on the occasion of robbery if, for instance, it was committed (a)
In People v. De Jesus,[36] this Court had exhaustively discussed to facilitate the robbery or the escape of the culprit; (b) to
the crime of robbery with homicide, thus: preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or, (d) to eliminate
For the accused to be convicted of the said crime, the witnesses in the commission of the crime. As long as there is a
prosecution is burdened to prove the confluence of the nexus between the robbery and the homicide, the latter crime
following elements: may be committed in a place other than the situs of the robbery.

(1) the taking of personal property is committed with From the above disquisition, the testimonies of the witnesses,
violence or intimidation against persons; and pieces of evidence presented by the prosecution, the crime of robbery
(2) the property taken belongs to another; with homicide was indeed committed. There was no mistaking from the
(3) the taking is animo lucrandi; and actions of all the accused that their main intention was to rob the gasoline
(4) by reason of the robbery or on the occasion station and that on occasion of such robbery, a homicide was
thereof, homicide is committed.[37] committed. The question now is whether there was conspiracy in the
In robbery with homicide, the original criminal design commission of the crime. According to appellant, the prosecution failed to
of the malefactor is to commit robbery, with homicide prove that he was a co-conspirator. However, this Court finds no merit to
perpetrated on the occasion or by reason of the robbery. [38] The appellant's argument.
intent to commit robbery must precede the taking of human
life.[39] The homicide may take place before, during or after the If it is proved that two or more persons aimed by their acts
robbery. It is only the result obtained, without reference or towards the accomplishment of the same unlawful object, each doing a
distinction as to the circumstances, causes or modes or persons part so that their combined acts, though apparently independent, were in
Page 10 of 71
fact connected and cooperative, indicating a closeness of personal Q: Kindly point to him?
association and a concurrence of sentiment, a conspiracy may be inferred
though no actual meeting among them to concert means is proved. That A: That man, sir. (Witness pointed to a person who answered by
would be termed an implied conspiracy.[45] The prosecution was able to the name of Marlon Albert de Leon).[47]
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 Therefore, it can be inferred from the role appellant played in
the robbers. Witness Eduardo Zulueta testified that appellant was one of the commission of the robbery, that a conspiracy existed and he was part
the robbers who poked a gun at him, thus: 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
Q. Were you able to identify those two armed male persons who the exact part to be performed by the others in the execution of the
poked their guns at you? conspiracy. Each conspirator may be assigned separate and different tasks
which may appear unrelated to one another but, in fact, constitute a whole
A: Yes, sir. 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
Q: Kindly look around inside this courtroom and inform the Hon. precise extent or modality of participation of each of them becomes
Court whether those two (2) persons who poked their guns at secondary,[49] since all the conspirators are principals.
you were (sic) present now?
As to the credibility of the witnesses, the RTC's findings must
A: Only one, sir, and there he is. 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
(At this juncture, witness pointing to a certain person who degree of respect and will not be disturbed on appeal without any clear
answered by the name of MARLON ALBERT DE LEON when showing that it overlooked, misunderstood or misapplied some facts or
asked.) circumstances of weight or substance which could affect the result of the
case.[50]
Q: This Marlon De Leon was he the one who guarded you in the
carwash or not? For his defense, appellant merely denied participating in the
robbery. However, his presence during the commission of the crime was
A: Yes, sir. well-established as appellant himself testified as to the matter. Granting
that he was merely present during the robbery, his inaction does not
Q: Now, what happened to you at the carwash where this Marlon exculpate him. To exempt himself from criminal liability, a conspirator
De Leon was guarding you? must have performed an overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the commission
A: His gun was poked at me, sir. 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
Q: What else transpired, Mr. Witness, or what else happened to robbery from taking place. His denial, therefore, is of no value. Courts
you aside from that? 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
A: He hit me with his gun on my nape, sir. both evidence are negative and self-serving, they cannot attain more
credibility than the testimonies of prosecution witnesses who testify
Q: What else, Mr. Witness? clearly, providing thereby positive evidence on the various aspects of the
crime committed.[52]
A: He got my wallet from my pocket, sir.
Consequently, the CA was correct in ruling that appellant was
Q: Who hit you with a gun? 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,
A: His other companion, sir.[46] which is to rob. As decided[53] by the Court of Appeals:

A continued (continuous or continuing) crime is


Appellant was also identified by witness Fortunato Lacambra defined as a single crime, consisting of a series of acts but all
III, thus: 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]
Q: What about that person who ordered Zulueta to go to the
carwash section and hit him, was he also armed? In the case before Us, [appellant] and his companions
intended only to rob one place; and that is the Energex gasoline
A: Yes, sir. station. That they did; and in the process, also took away by force
the money and valuables of the employees working in said
Q: What kind of firearm was he carrying then? gasoline station. Clearly inferred from these circumstances are
the series of acts which were borne from one criminal
A: Also .38 caliber, sir. resolution. A continuing offense is a continuous, unlawful act or
series of acts set on foot by a single impulse and operated by
Q: Were you able to identify or recognize that person who an unintermittent force, however long a time it may
approached and ordered Zulueta to go to the carwash section? occupy.[56] This can be said of the case at hand.

A: Yes, sir. Akin to the extant case is that of People v. De la


Cruz,[57] wherein the robbery that took place in several houses
Q: If that person is inside the courtroom, will you be able to belonging to different persons, when not absolutely
identify him? unconnected, was held not to be taken as separate and distinct
offenses. They formed instead, component parts of the general
A: Yes, sir. plan to despoil all those within the vicinity. In this case, the
Solicitor General argued that the [appellant] had committed
Page 11 of 71
eight different robberies, because the evidence shows distinct penalty thereof by degrees, the trial court proceeded to declare
and different acts of spoilation in different houses, with several that the use of an unlicensed firearm by the petitioner is to be
victimized persons.[58] The Highest Tribunal, however, ruled considered only as a generic aggravating circumstance. [70] This
that the perpetrated acts were not entirely distinct and interpretation is erroneous, since we already held in several
unconnected from one another.[59] Thus, the single offense or cases that with the passage of Republic Act No. 8294 on 6 June
crime. 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
Now, this Court comes to the penalty imposed by the CA. The applies to the instant case since it took effect before the
decision[60] merely states that, in view of the enactment of R.A. 9346, the commission of the crimes in 21 April 1998. Therefore, the use of
sentence of Death Penalty, imposed upon appellant, is automatically an unlicensed firearm by the petitioner in the instant case
commuted to reclusion perpetua, but is silent as to how it had arrived into should be designated and appreciated as a SPECIAL aggravating
such a conclusion. circumstance and not merely a generic aggravating
circumstance.
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 In another case,[72] this Court ruled that, the existence of the
provides that, in all cases in which the law prescribes a penalty composed firearm can be established by testimony, even without the presentation of
of two indivisible penalties, the greater penalty shall be applied when the the firearm.[73] In the said case, it was established that Elmer and
commission of the deed is attended by one aggravating circumstance.[61] It Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot wounds.
must be remembered that the Informations filed with the RTC alleged the The ballistic examination of the slugs recovered from the place of the
aggravating circumstance of the use of unlicensed firearm. Pursuant to the incident showed that they were fired from a .30 carbine rifle and a .38
third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, caliber firearm. The prosecution witnesses positively identified appellant
such use of an unlicensed firearm is a special and not a generic therein as one of those who were holding a long firearm. It was also
aggravating circumstance in the homicide or murder committed. As established that the same appellant was not a licensed firearm holder.
explained by this Court in Palaganas v. People:[62] Hence, this Court ruled that the trial court and the CA correctly
appreciated the use of unlicensed firearm as an aggravating circumstance.
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 After a careful study of the records of the present case, this
Revised Penal Code. It has the effect of increasing the penalty for Court found that the use of unlicensed firearm was not duly proven by the
the crime to its maximum period, but it cannot increase the prosecution. Although jurisprudence dictates that the existence of the
same to the next higher degree. It must always be alleged and firearm can be established by mere testimony, the fact that appellant was
charged in the information, and must be proven during the trial not a licensed firearm holder must still be established. The prosecution
in order to be appreciated.[63] Moreover, it can be offset by an failed to present written or testimonial evidence to prove that appellant
ordinary mitigating circumstance. did not have a license to carry or own a firearm, hence, the use of
unlicensed firearm as an aggravating circumstance cannot be appreciated.
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 Finally, it is worth noting that the RTC ordered appellant to
cannot increase the penalty to the next higher degree. Examples indemnify the heirs of Edralin Macahis the amount of P50,000.00 as death
are quasi-recidivism under Article 160 and complex crimes indemnity, P12,000.00 as compensatory damages for the stolen service
under Article 48 of the Revised Penal Code. It does not change firearm if restitution is no longer possible and P50,000.00 as moral
the character of the offense charged.[64] It must always be damages. Actual damages were never proven during the trial. Hence, this
alleged and charged in the information, and must be proven Court's rulings[74] on temperate damages apply, thus:
during the trial in order to be appreciated. [65] Moreover, it
cannot be offset by an ordinary mitigating circumstance. In People vs. Abrazaldo,[75] we laid down the doctrine
that where the amount of actual damages for funeral expenses
It is clear from the foregoing that the meaning and cannot be determined because of the absence of receipts to
effect of generic and special aggravating circumstances are prove them, temperate damages may be awarded in the amount
exactly the same except that in case of generic aggravating, the of P25,000[76] This doctrine specifically refers to a situation
same CAN be offset by an ordinary mitigating circumstance where no evidence at all of funeral expenses was presented in
whereas in the case of special aggravating circumstance, it the trial court. However, in instances where actual expenses
CANNOT be offset by an ordinary mitigating circumstance. 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
Aside from the aggravating circumstances of People vs. Villanueva[77] which modified the Abrazaldo
abovementioned, there is also an aggravating circumstance doctrine. In Villanueva, we held that when actual damages
provided for under Presidential Decree No. 1866,[66] as proven by receipts during the trial amount to less than P25,000,
amended by Republic Act No. 8294,[67] which is a special law. Its the award of temperate damages for P25,000 is justified in lieu
pertinent provision states: of the actual damages of a lesser amount. To rule otherwise
would be anomalous and unfair because the victims heirs who
If homicide or murder is committed with the use of tried but succeeded in proving actual damages of an amount less
an unlicensed firearm, such use of an unlicensed firearm shall than P25,000 would be in a worse situation than those who
be considered as an aggravating circumstance. might have presented no receipts at all but would now be
entitled to P25,000 temperate damages.[78]
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 WHEREFORE, the Decision dated June 29, 2007 of the Court of
generic aggravating circumstance is more favorable to Appeals is hereby AFFIRMED with MODIFICATION. Appellant Marlon
petitioner compared to a qualifying aggravating circumstance, Albert de Leon y Homo is hereby found guilty beyond reasonable doubt of
as the latter changes the nature of the crime and increase the the crime of Robbery with Homicide, the penalty of which, is reclusion

Page 12 of 71
perpetua in view of the absence of any mitigating or aggravating would take care of Ybasco. Momentarily, Manansala and the appellant
circumstance. Appellant is also liable to pay the heirs of the confronted Ybasco and told him, "May warrant of arrest ka." They grabbed
victim, P25,000.00 as temperate damages, in addition to the other civil Ybasco, handcuffed him and dragged him to the car. 19 Manansala and the
indemnities and damages adjudged by the Regional Trial Court, Branch appellant had a scuffle with Ybasco when they grabbed the plastic bag
76, San Mateo, Rizal. 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
SO ORDERED. 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
G.R. No. 134815 May 27, 2004 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
PEOPLE OF THE PHILIPPINES, appellee, was Juanito Mendoza, who had just stepped out from the Rustan’s
vs. Supermarket and saw the shooting incident.24
EDUARDO DE JESUS y ENRILE, appellant.

Wilfredo Delia, another security guard at the Ayala Center, rushed to


DECISION Acosta’s aid and brought him to the Makati Medical Center. Acosta expired
at about 10:10 p.m.25
PER CURIAM:
Meanwhile, the Toyota Corolla sped towards the direction of Cabuyao,
This is an automatic review of the Decision1 of the Regional Trial Court of Laguna. Manansala said that they would have no problem because the
Makati, Branch 64, convicting the appellant of robbery with homicide and mayor was his ninong.26 However, when he looked inside Ybasco’s bag
sentencing him to suffer the death penalty. 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
The Case for the Prosecution 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
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 Ybasco was transported to a sugar farm at Barangay Pulo, Cabuyao,
Intercontinental Hotel and the Rustan’s Supermarket in Makati City. He 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
delivered money for his employer every afternoon. The money was placed
not to follow them, as he, (the appellant) was a member of the New
in a plastic bag3 and he used a bicycle for this extra job.4 Everytime Ybasco
People’s Army. Believing that Ybasco would be freed, Del Rosario took ₱80
delivered money to his employer, he passed by Yolanda dela Rapa who
from the latter’s wallet, but returned ₱50 to him for his fare. 28
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, The appellant suddenly shot Ybasco on the head. The latter fell to the
Jing and Romy.6 Dela Rapa called him "Sir Ybasco."7 ground with his hands still handcuffed.29Manansala, the appellant and Del
Rosario proceeded to Calamba, Laguna, where Del Rosario alighted after
Sometime in February 1994, Dante Manansala, a native of Barangay 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.
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, In the meantime, police operatives from the Makati Police Station,
Laguna,11 agreed to stage a robbery in the afternoon of March 7, 1994. On including SPO4 Tomas Sipin and SPO1 Ramoncito Ocampo, arrived at the
February 15, 1994, the appellant told Del Rosario of the planned Ayala Center to conduct an on-the-spot investigation of the killing of
robbery.12 Del Rosario was told that the financier for the heist was Acosta and Ybasco’s abduction.31 When Dela Rapa informed the policemen
Christopher Nash, a British national residing in the Philippines.13 The that she witnessed the incident, she was brought to the police station
appellant knew that Ybasco was to deposit US$250,000 in the bank every where she gave a sworn statement.32 At 8:10 p.m., Juanito Mendoza
afternoon for his employer. They decided to waylay Ybasco on his way to arrived at the Makati Police Station and gave a sworn statement where he
the bank. 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 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 At 6:20 a.m. of March 8, 1994, Sofronio Entridicho was at his sugar field
Nash.14 While the appellant, Del Rosario and Manansala were on board the and saw the cadaver of Ybasco whose hands were still
car, their confederate, Tonton, had lunch somewhere in Batangas. The handcuffed.34 Entridicho reported what he saw to the Cabuyao Police
group arrived in the vicinity of the parking lot at the Ayala Center near the Station.35 SPO2 Reynaldo Arcibal of the Cabuyao Police Station reported
Rustan’s Supermarket and the Kimpura Restaurant on board the same the finding to the Makati Police Station which dispatched a team of police
car.15 The appellant was armed with a caliber .45 handgun. 16Manansala, investigators to Barangay Pulo, Cabuyao, Laguna. The policemen found
the appellant and Del Rosario alighted, and conducted a surveillance of the Ybasco’s body and an empty shell from a .45 caliber pistol. 36
area. Tonton remained in the car. Manansala instructed Del Rosario to
position himself as a lookout at the corner of the Rustan’s Supermarket, In the meantime, the policemen were able to ascertain that the Toyota
and for the appellant to position himself within the vicinity. 17 Manansala Corolla car with Plate No. TAX 732 belonged to Cecilia Tan and her
waited Ybasco near the office of the money changer. Dela Rapa, who was husband Christopher Nash, and that the latter gave the car keys to Rolando
then vending cigarettes, was about five arm’s length away from the car. 18 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
At around 6:30 p.m., Ybasco emerged from the office of his employer gave sworn statements38 to the Makati Police Operatives where he stated
holding a plastic bag. Manansala contacted Del Rosario and told him that that at 8:00 a.m. of March 7, 1994, he turned over the car to the appellant
Ybasco was on his way out. He reminded Del Rosario to be on the lookout and the latter’s brother-in-law, Del Rosario. Fajardo also stated that at
for anybody who might rush to the succor of Ybasco, while the appellant
Page 13 of 71
9:00 a.m. of March 8, 1994, Manansala told him how Ybasco was abducted one SPO2 Eugenio Ybasco, did then and there willfully, unlawfully and
and brought to Cabuyao, Laguna, where he was shot by the appellant. feloniously take, steal and carry away the following:

On March 9, 1994, police operatives arrested Del Rosario at his residence 1) One (1) Cal. 38 revolver Smith & Wesson, with
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 Serial No. AUB-1015;
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 2) Identification Cards;
his residence in Barangay Canlubang, Laguna.
3) One (1) wallet containing ₱5,000.00 cash.
On March 12, 1994, Manansala, with the assistance of his counsel, Atty.
Sofronio Untalan, Jr., executed an extrajudicial confession in which he belonging to the said SPO2 Eugenio Ybasco, against his will, to the damage
narrated how he, the appellant, Del Rosario and Nash, planned to rob and prejudice of the said SPO2 Eugenio Ybasco and/or his heirs and
Ybasco of the cash he was carrying, including the details of the abduction thereafter, the above-named accused, after handcuffing both hands of the
and the killing.42 The policemen attempted to arrest the appellant at his said SPO2 Eugenio Ybasco, with intent to kill, did then and there willfully,
residence, but the latter was nowhere to be found. The appellant remained unlawfully and feloniously, shoot and fire at him with a handgun, thereby
at large.43 inflicting upon the latter a mortal wound which was the direct and
immediate cause of his death; that on the occasion of the aforesaid
Tanauan Police Operatives found the white Toyota Corolla with Plate No. robbery committed on SPO2 Eugenio Ybasco, the above-named accused,
TAX 732 in Tanauan, Batangas.44 The car was turned over to SPO2 Romeo did then and there, willfully, unlawfully and feloniously shoot and fire at,
Urbino of the Makati Police Station, who discovered that the said plate with a handgun, one Roberto Acosta y Capirao, a roving security guard
number was tampered with and renumbered PTT 134. 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.
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 CONTRARY TO LAW.49
Rosario as Acosta’s assailant. Dela Rapa gave a supplemental
statement45 pointing to and identifying Del Rosario as the person whom Del Rosario was arraigned on April 5, 1994, assisted by counsel, and
she saw boarding a white car.46 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
In the meantime, PNP Medico-Legal Officer Joselito Rodrigo performed an Rosario appeared before the court and stated that he wanted to testify and
autopsy on the cadaver of Ybasco and issued Medico-Legal Certificate No. elucidate on how the crime charged was committed by him and his
M-006-94 which contained the following findings: 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
Well-nourished, well-developed male cadaver in rigor mortis with judgment convicting Del Rosario of robbery with homicide and sentencing
postmortem lividity over the dependent portions of the body. Pale him to suffer reclusion perpetua.53
conjunctivae, cyanotic lips and nailbeds. Both upper extremities were
handcuffed.
On motion of the public prosecutor, the court admitted the Amended
Information filed by public prosecutor. The amendment consisted of the
HEAD AND EXTREMITIES inclusion of Christopher John Nash and the appellant as additional
accused.54Consequently, the court issued warrants for their arrest.
1. Gunshot wound thru and thru point of entry right zygomatic region Christopher Nash filed a petition for review of the resolution of the public
measuring 0.9 x 1.2 cms., 10 cms. from its anterior midline with area of prosecutor finding probable cause against him for the crime charged. On
smugging and tattoing measuring 4 x 7 cms. directed posteriorwards, January 25, 1995, the Secretary of Justice granted the petition and ordered
slightly downwards and to the left fracturing the right zygomatic bone, the public prosecutor to move for the withdrawal of the Amended
maxillary bone, and occipital bone making a point of exit at the posterior Information as against Christopher Nash only. The public prosecutor filed
neck region measuring 1 x 1.2 cms., 2.5 cms. from its posterior midline. the motion55 which the court granted on March 29, 1994.56 Manansala,
through counsel, prayed for the inhibition of the Presiding Judge on the
CONCLUSION: 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.
Cause of death is hemorrhage as a result of gunshot wound of the head.47
On November 20, 1995, the police operatives arrested the appellant in
The doctor also issued the victim’s Certificate of Death. 48 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
On May 19, 1995, Del Rosario and Manansala were charged with robbery November 6, 1996, Manansala died while under detention due to a
with homicide in an Information, the accusatory portion of which reads: 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
That on or about March 7, 1994, in the Municipality of Makati, Metro on May 20, 1997, where Del Rosario testified for the prosecution and was
Manila, Philippines, and within the jurisdiction of this Honorable Court, cross-examined by the appellant’s counsel.61
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 The appellant, through counsel, admitted the due execution of the sworn
them mutually helping and aiding one another, with intent of gain and by statement of Rolando Fajardo,62 Juanito Mendoza,63 Marcelina
means of force, violence and intimidation, to wit: dragging, shoving and Acosta64 and Dolores Ybasco,65 and waived his right to cross-examine the
pushing inside a Toyota Corolla car, colored white with Plate No. TAX-732 said witnesses.66 The prosecution no longer presented the affiants as
witnesses.
Page 14 of 71
The Evidence for the Appellant Rosario Dizon Lopez testified that sometime in November or December
1997, she visited her husband Jerry Lopez at the Makati City Jail where she
The appellant denied any involvement whatsoever in the crime charged. met Del Rosario. She again met Del Rosario in Muntinlupa where he would
He did not know of any person named John Nash. He denied being in the ask her to deliver letters89 to the appellant, who was then detained at the
company of Manansala, Del Rosario and a certain Tonton in the evening of Makati City Jail.90 The jail warden never knew that the said letters were
March 7, 1994.67 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 appellant testified that in February 1994, he purchased a tricycle for the letters and read them. She was then allowed to bring the letters in.
₱46,705 in Calamba, Laguna. He borrowed the amount from his sister. He Furthermore, the visits in the Makati City Jail were not recorded in the
had the tricycle registered in his name.68 He drove the tricycle everyday to logbook; nor was she required to sign therein. At times, her forearms were
eke out a living, plying the route in Barangay Tabuyoc, Apalit, Pampanga, stamped to indicate that she was a visitor. 91 She also recounted that
from 6:00 a.m. to 9:00 p.m.69 sometime in 1997, the appellant asked for money from Del Rosario, but
the latter did not send any.92
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 Jennifer Obina, the appellant’s live-in partner, testified that the latter
Lumba, at the market. They had agreed that he would pick her up from the worked as a sewing machine mechanic in a garment factory in Pasong
market, then drop her off at her house. The distance from the market to Tamo Extension, Makati, when they started living together. In 1988, she
the Lumba residence was about 2-l/2 kilometers. The trip took him about was engaged in the business of selling fish and tinapa. Sometime in
one hour.70 On March 10 or 11, 1994, policemen raided his house, but February 1994, the appellant bought a tricycle and drove it as a means of
failed to arrest him.71 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.
The appellant admitted that he had known Manansala in Pampanga
On March 10, 1994, Obina was surprised to learn that the appellant was
since he was a boy. He alleged that Del Rosario was the brother of his wife, implicated in a kidnapping and killing incident which was aired over the
Cecille; hence, his brother-in-law.72After he and Cecille were married, they television and radio.93 Also on the said date, policemen in civilian clothes
resided in the house of his in-laws where Del Rosario was also who were looking for her "husband" raided their house. 94 The appellant,
staying.73There was a time when he and Del Rosario had a violent however, was not there, but was within the vicinity of his aunt’s house.
altercation. As he was also a sewing machine mechanic by profession, Del The policemen never showed any warrant of arrest or search warrant.
Rosario asked him to alter a pair of pants, but the appellant refused to do They just went inside the house and poked a gun at her head. They forced
so. Del Rosario then smashed the sewing machine74 and the two of them her to reveal where the appellant was, but she refused to do so. 95 Neither
exchanged fist blows.75 Since then, Del Rosario harbored a grudge against was she informed why they were looking for him. The policemen merely
him. Later, he and Cecille parted ways. She married a Swedish national and told her that the appellant was a criminal and a killer. Although the
resided in Sweden,76bringing their daughter Diane Joyce along with her. appellant knew that he was "wanted" for the kidnapping and killing
The appellant had five children with his new partner. Del Rosario was also incidents, he just ignored the matter.96 Obina later learned from the
mad at him because he had planned on filing a case against his sister for appellant’s cousin that the latter had already left for Manila.97 The
marrying a foreigner. appellant did not return for about a week, and thereafter, stayed with his
aunt in Taguig.98
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, After trial, the court rendered judgment finding De Jesus guilty of the
together with Manansala and Del Rosario, raided his house. He saw his co- crime charged, the decretal portion of which reads:
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 WHEREFORE, in view of the foregoing, judgment is rendered finding the
river while under the custody of policemen.78 Upon the advice of his accused EDUARDO DE JESUS Y ENRILE GUILTY beyond reasonable doubt
brother, the appellant decided not to surrender, as he was afraid that he of the crime of Robbery with Homicide and sentencing him to suffer the
might also be mauled and hurt by the police.79 The appellant, thereafter, penalty of DEATH; to indemnify the heirs of the deceased SPO2 Eugenio
worked in Binangonan, Rizal.80 He was arrested on November 20, Ybasco and Roberto Acosta in the sum of ₱50,000.00 each family; and to
199581 and was brought to Camp Vicente Lim,82 where he was treated well pay the heirs of SPO2 Eugenio Ybasco the sum of ₱500,000.00 by way of
and subjected to physical examination. moral damages.99

While in prison, Del Rosario told the appellant that he would be impleaded The trial court relied principally on the testimony of Dela Rapa and Del
and jailed as he had abandoned his sister, and that Del Rosario was Rosario, corroborated by the other evidence on record, in convicting the
intending to file a case against him.83 The appellant received a letter with appellant of the crime charged. It considered the testimony of Del Rosario
a Christmas card from his daughter in Sweden. 84 He also received a letter on April 21, 1994 as a judicial confession, admissible in evidence not only
from Del Rosario dated December 4, 1997 through Pinky Dizon, the wife against the confessant (Del Rosario) but also against the appellant.
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 The appellant now assails the decision of the trial court on the following
sometime in Easter, suggesting that he ask for a hearing so that Del grounds:
Rosario could testify and clear him of the crime charged. The appellant
also alleged that before Manansala died, the latter disclosed that he I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE EVIDENCE OF
executed a statement implicating the appellant because he (Manansala) THE PROSECUTION IS INSUFFICIENT TO PROVE THE GUILT OF
was tortured by policemen.86 ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

Silvina Lumba corroborated the testimony of De Jesus. She testified that at II. THE TRIAL COURT ERRED IN ADMITTING THE JUDICIAL CONFESSION
5:00 p.m. on March 7, 1994, she contracted the services of the appellant to OF ACCUSED CRISPIN DEL ROSARIO AND IN USING THE SAME AGAINST
transport her in his tricycle, going to and from the market. They arrived at THE OTHER ACCUSED, INCLUDING ACCUSED-APPELLANT EDUARDO DE
her house at around 6:30 p.m.87 The appellant asked her to appear in court JESUS, IMPLICATING THEM TO THE CRIME CHARGED, DESPITE THE
and to testify.88 FACT THAT THE SAME IS INADMISSIBLE IN EVIDENCE. MOREOVER, THE
AFFIDAVIT OF ACCUSED DANTE MANANSALA POINTING TO ACCUSED-
Page 15 of 71
APPELLANT AS THE ASSAILANT IS LIKEWISE INADMISSIBLE IN one of the perpetrators thereof; hence, criminally liable therefor as a
EVIDENCE. principal by direct participation.

III. THE TRIAL COURT ERRED IN DECLARING THAT ACCUSED- The Felony of Robbery
APPELLANT CONSPIRED WITH THE OTHER ACCUSED IN COMMITTING
THE CRIME CHARGED. With Homicide

IV. THE TRIAL COURT ERRED IN OUTRIGHTLY DISREGARDING Article 294, paragraph 1 of the Revised Penal Code provides:
ACCUSED-APPELLANT’S DEFENSE OF ALIBI AND DENIAL, DESPITE THE
FACT THAT THE SAME IS CREDIBLE AND WAS CORROBORATED BY
ANOTHER WITNESS. 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:
V. THE TRIAL COURT ERRED IN APPRECIATING AGAINST THE ACCUSED-
APPELLANT THE AGGRAVATING CIRCUMSTANCE OF TREACHERY.
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,
VI. THE TRIAL COURT ERRED IN HOLDING THAT THE CRIME OF or when the robbery shall have been accompanied by rape or intentional
ROBBERY WITH HOMICIDE WAS COMMITTED DESPITE THE FACT THAT mutilation or arson.
NO ROBBERY ACTUALLY TOOK PLACE.

For the accused to be convicted of the said crime, the prosecution is


VII. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED- burdened to prove the confluence of the following elements:
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 (1) the taking of personal property is committed with violence or
ACCUSED-APPELLANT FAILED TO STAND THE CRUCIBLE TEST OF intimidation against persons;
REASONABLE DOUBT TO OVERTHROW THE CONSTITUTIONALLY
GUARANTEED PRESUMPTION OF INNOCENCE.100 (2) the property taken belongs to another;

The appellant contends that the prosecution failed to prove the (3) the taking is animo lucrandi; and
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. (4) by reason of the robbery or on the occasion thereof, homicide is
committed.101

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 In robbery with homicide, the original criminal design of the malefactor is
Rosario’s judicial confession is admissible in evidence only against the to commit robbery, with homicide perpetrated on the occasion or by
confessant but not against him. Moreover, the appellant asserts, the said reason of the robbery.102 The intent to commit robbery must precede the
judicial confession came from a "polluted source," as Del Rosario himself taking of human life.103 The homicide may take place before, during or
admitted to being one of the malefactors. Thus, his testimony must be after the robbery. It is only the result obtained, without reference or
scrutinized with care and subjected to grave suspicion. The appellant distinction as to the circumstances, causes or modes or persons
further avers that Del Rosario even stated that Manansala was Ybasco’s intervening in the commission of the crime that has to be taken into
assailant. He argues that Del Rosario himself could also have been the consideration.104
assailant, as it was he who shot Acosta when the latter tried to rescue
Ybasco. There is no such felony of robbery with homicide through reckless
imprudence or simple negligence. The constitutive elements of the crime,
According to the appellant, Del Rosario implicated him, his own brother- namely, robbery and homicide, must be consummated.
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, It is immaterial that the death would supervene by mere accident; or that
who was later impelled to marry a Swedish national. As shown by Del the victim of homicide is other than the victim of robbery, or that two or
Rosario’s letters to the appellant, the former himself apologized to the more persons are killed or that aside from the homicide, rape, intentional
latter for having falsely implicated him in the crime charged. 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
Contrary to the ruling of the trial court, Del Rosario’s letters to the homicide is one of the robbers; the felony would still be robbery with
appellant were not hearsay. The prosecution could very well have homicide. Once a homicide is committed by or on the occasion of the
presented Del Rosario anew to refute his allegations, but the prosecution robbery, the felony committed is robbery with homicide. All the felonies
failed to do so. The appellant further argues that Manansala’s extrajudicial committed by reason of or on the occasion of the robbery are integrated
confession is hearsay, because the latter died before he could testify and into one and indivisible felony of robbery with homicide. The word
later be cross-examined by the appellant thereon. Moreover, the affidavits "homicide" is used in its generic sense. Homicide, thus, includes murder,
and testimony of Dela Rapa, as well as Del Rosario’s judicial confession, parricide, and infanticide.
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 Intent to rob is an internal act but may be inferred from proof of violent
crime, namely, Manansala and Del Rosario. Finally, the appellant unlawful taking of personal property. When the fact of asportation has
concludes that Dela Rapa failed to identify him as one of the malefactors. been established beyond reasonable doubt, conviction of the accused is
justified even if the property subject of the robbery is not presented in
We have meticulously reviewed the records and we are convinced beyond court. After all, the property stolen may have been abandoned or thrown
cavil that the prosecution adduced proof beyond reasonable doubt that away and destroyed by the robber or recovered by the owner.105 The
the appellant, Del Rosario and Manansala, conspired to rob Ybasco of prosecution is not burdened to prove the actual value of the property
US$250,000 through violence and intimidation and that the appellant was stolen or amount stolen from the victim. Whether the robber knew the
Page 16 of 71
actual amount in the possession of the victim is of no moment because the who was on patrol within the vicinity and had rushed to the scene to
motive for robbery can exist regardless of the exact amount or value investigate the incident. The appellant and Manansala abducted Ybasco,
involved.106 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
When homicide is committed by reason or on the occasion of robbery, all gleaned from the Del Rosario’s testimony, viz:
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 FISCAL BACULI
although they did not actually take part in the killing, unless it clearly
appears that they endeavored to prevent the same. 107 Q Isinusumpa mo ba na ang lahat ng sinasabi mo ay pawang katotohanan
lamang?
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 A Oho, sir, siya rin ho ang nagsabi niyan sa akin narinig ko sa kanyang
with homicide. All those who conspire to commit robbery with homicide bunganga, ngayon pagdating naming dito ng mga menus kinse bago
are guilty as principals of such crime, although not all profited and gained magalas-sais dito sa may kotse doon piplano (sic) ni Dante kung paanong
from the robbery. One who joins a criminal conspiracy adopts the criminal posisyon ang gagawin dinala niya ako sa may kanto ng Rustan’s si Eddie
designs of his co-conspirators and can no longer repudiate the conspiracy doon niya ipinuwesto sa may banda roon ng aking puwesto tapos ho si Dante
once it has materialized.108 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
Homicide is said to have been committed by reason or on the occasion of ni sir Ybasco nauna si Dante kasunod si sir Ybasco ngayon ho pagdating sa
robbery if, for instance, it was committed to (a) facilitate the robbery or akin sa may kanto sabi sa akin ni Dante "nandiyan na bahala ka diyan" sabi
the escape of the culprit; (b) to preserve the possession by the culprit of sa aking ganon kung meron mang humarang ikaw ang bahala upakan mo
the loot; (c) to prevent discovery of the commission of the robbery; or, (d) sabi sa aking ganon ako naman ang bahala dito kay tanda kay tatang
to eliminate witnesses in the commission of the crime. As long as there is sabing ganon tutulungan ko si Eddie dito sa pagipit, ngayon ho nong
a nexus between the robbery and the homicide, the latter crime may be lumampas sa akin si sir Ybasco dalawa na sila doon si Dante at si Eddie
committed in a place other than the situs of the robbery. 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
The Prosecution Adduced Proof 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
Beyond Reasonable Doubt That 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
The Appellant Conspired With Del tapos iputok mo sa kanya.

Rosario And Manansala To Commit COURT

Robbery With Violence Against Or Sino ang nag-utos sa iyo non?

Intimidation Of Persons 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
Under Article 8 of the Revised Penal Code, there is conspiracy when ten or na ho ang pinutukan ko.114
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 Del Rosario’s testimony is corroborated by the fact that Acosta’s firearm
crime itself.109 It may be declared from the acts of the suspect before, was found in his possession when he was arrested by the police,115 and by
during and after the commission of the felony which are indicative of a Dela Rapa’s sworn statements to the Makati police office as well as her
joint purpose, concocted action and concurrence of sentiments. 110 testimony:

To be a conspirator, one need not participate in every detail of the Q While selling cigarette at that date and time, do you still remember or
execution; he need not even take part in every act or need not even know recall of any unusual incident that happened on that date and time?
the exact part to be performed by the others in the execution of the
conspiracy. Each conspirator may be assigned separate and different tasks A Yes, sir.
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 Q Please inform the Court what was that unusual incident that happened
precise extent or modality of participation of each of them becomes on that date and time?
secondary,112 since all the conspirators are principals. To exempt himself
from criminal liability, a conspirator must have performed an overt act to A Mr. Ybasco was forcefully dragged into the white car, sir.
dissociate or detach himself from the conspiracy to commit the felony and
prevent the commission thereof.113 Q Who is this Mr. Ybasco, if you know?

In this case, the appellant, Del Rosario and Manansala, intended to abduct A I called him "Sir Ybasco," sir.
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 Q Why do you addressed him "Sir Ybasco?"
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 A Because I know him for a long time and I’m selling cigarette for a long
abduction and the consummation of the robbery. The trio performed their time, sir.
tasks with precision. In the process, Del Rosario shot and killed Acosta
Page 17 of 71
Q Do you know where he was connected? A Yes, sir.116

A Yes, sir. Juanito Mendoza, likewise, corroborated in part the testimonies of Del
Rosario and Dela Rapa.117 The barefaced fact that Dela Rapa and Mendoza
Q Where? 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.
A Money Changer, Sir.
The Prosecution Adduced Proof
Q Do you know also if he is [a] member of [the] Makati Police
Headquarters?
Beyond Reasonable Doubt that

A Yes, sir.
the Appellant and his Cohorts

Q How long have you know[n] him as [a] member of the Makati Police
Headquarters? Divested Ybasco of P5,030.00 And

A As far as I know I am selling for thirteen years and he is also working at That The Appellant Shot Ybasco And
the Makati Police Headquarters for thirteen years.
Acosta To Death On The Occasion
Q Do you know what was his position or nature of his work at the Makati
Police Headquarters? Or By Reason Of Robbery

A I do not know, sir. 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
Q A while ago, you said that with the same date and time, you saw some argument that Ybasco was shot by either Manansala or Del Rosario. The
persons shoving, dragging and pushing Eugenio Ybasco inside a white car, prosecutor adduced proof beyond reasonable doubt that Del Rosario shot
do you know the identities of these some (sic) persons? 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:
A I cannot remember the persons who dragged, shoved and pushed
Eusebio Ybasco inside the car because it was a little bit dark, sir.
FISCAL BACULI

Q But, were there lights that (sic) date and time?


Ikaw ba ay handang tumestigo laban kay Dante Manansala kung bibistahan
uli ang kaso niya?
A Yes, sir.
A Opo, sir, tapos po nakita ko pong naisakay na si sir Ybasco na hindi ko
Q How many lights were there at that place and time? 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
A There were several lights at that date and time, because it is a parking sira yung likuran ng kotse hindi ko ho matiyak kung ako ang binaril nila o
lot and there were lights in the Kimpura, sir. 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
Q Do you still recall how many persons were pushing, shoving and papunta kami ng expressway sa madalit sabi ho di nasa expressway na kami
dragging Eugenio Ybasco inside a white colored car? 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
A Around three (3) persons, sir. 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
Q Are these three (3) persons male or female? 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
A Male, sir. 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
Q Now, what happened then when these three male persons pushed, naming kayo basta huwag lang kayong hahabol kami’y eh mga NPA sabing
dragged or shoved Eugenio Ybasco inside the white car? 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
A After Eusebio Ybasco was pushed inside the car he (witness is referring dinala ho sa banda roon, akala ko naman talagang pasasakayin nila ng
to Crispin Del Rosario) shot Mr. Acosta, a certain Security Guard. 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
Q Are you sure that he was the one who shot a certain Security Guard singkuwenta pesos kay sir Ybasco ngayon ho nong pagkababang yon
Roberto Acosta? 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
A Yes, sir.
tumihayang ganon tapos eh uulitin ng baril kaya lang hindi na naulit dahil
bumatangal daw yong baril kaya hindi na ho pumutok.
Q Did you see him actually shoot a certain Roberto Acosta?

Page 18 of 71
COURT WITNESS

Sino ang bumaril? Yes, sir.

A Si Eddie po ang nakita kong bumaril pero ang nagbaba ho ng tao ay silang PROS. BAGAOISAN
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. 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
FISCAL BACULI repeat: Magkano ba ang nakuha ninyo? Five thousand lang, sir. How do
you reconcile now your testimony that there was no robbery to your
Sino ang nagbigay ng pera sa iyo? answer to that question that you were able to take the amount of five
thousand pesos?

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 WITNESS
… (interrupted).
Well sir, what I know is that their target was the money changer because
COURT 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
Magkano bang nakuha n’yo? they were not able to find money from him, sir.

A ₱5,000.00 lang, sir, at ipapaayos pa raw ang salamin sa likod dahil PROS. BAGAOISAN
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 Now, where did you get then this amount of five thousand pesos?
ang pera na $250,000 daw.
WITNESS
FISCAL BACULI
Well, sir, at that time my mind was confused, I have said that amount five
Sino? thousand pesos, but the truth is there was no money found from Sir
Ybasco, sir.120

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 Indeed, Del Rosario’s testimony during the trial on May 20, 1997 is
patunog hinahanap yong perang $250,000 bakit daw hindi siya nagdeliber inconsistent with his testimony during the trial of April 21, 1994. But the
ngayon hinahanap niyang magaling sabi naman ho ni sir Ybasco "eh wala trial court rejected the aforequoted testimony of Del Rosario on May 20,
naman akong idenideliber mga anak na ganyang kalaking pera" ang akala 1997, and gave credence to his testimony on April 21, 1994.
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 We agree with the trial court.
na yon.118
First. When the public prosecutor asked Del Rosario to affirm and confirm
It is true that when Del Rosario continued with his testimony during the the truth of his answers to the questions propounded on him during the
trial on May 20, 1997, he admitted to having pleaded guilty to robbery trial of April 21, 1994,121 Del Rosario unequivocably declared that his
with homicide, but declared that no robbery took place: answers to the said questions were true, and that he was not coerced,
forced or intimidated into answering:
PROS. BAGAOISAN
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? After you pleaded guilty before Branch 65 Regional Trial Court, Makati
City, do you recall that the Presiding Judge and the Fiscal propounded
WITNESS questions to you regarding that incident?

Yes, sir, but there was no robbery that took place on that day. 119 WITNESS

Del Rosario even declared on re-direct examination that no money was Yes, sir.
found in the possession of Ybasco and that when he testified on April 21,
1994, his mind was confused: PROS. BAGAOISAN

PROS. BAGAOISAN In other words, there was a hearing conducted after you pleaded guilty to
the offense charged?
Yes, Your Honor.
WITNESS
Q Mr. Witness, you testified on cross-examination that there was (sic) no
robbery that (sic) was committed, am I correct? Yes, sir.

Page 19 of 71
PROS. BAGAOISAN All the expedients devised by men to determine the credibility of
witnesses should be utilized to determine which of the contradictory
Now, Mr. Witness, I am showing to you an official transcript of testimonies represents the truth.125The trial court and this Court reviewed
stenographic notes of Branch 65 Regional Trial Court, Makati City, the records and have come to the same conclusion – it is Del Rosario’s
certified true and correct by Court Stenographic Reporter Ms. Concepcion April 21, 1994 testimony which represents the truth.
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 It is true that Del Rosario was a co-conspirator and that he implicated the
that you have given to the questions? 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-
WITNESS 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
Yes, sir, these are the questions that were asked and these are my answers. evidence. In People v. Sia,126 we had the occasion to state:

PROS. BAGAOISAN … [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
Mr. Witness, under your present oath, do you still affirm and confirm the sufficient to dilute the credibility of or, much less, be a ground to disregard
truthfulness and veracity by (sic) your answers to the questions altogether his testimony. Indeed:
propounded to you by the Presiding Judge and the prosecutor?
By way of exception, the testimony of a co-conspirator may, even if
WITNESS 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
Yes, sir. deliberate afterthought.127

PROS. BAGAOISAN The April 21, 1994 testimony of Del Rosario is not only replete with
details; it is also corroborated by independent evidence, including the
Were you forced, coerced or intimidated when you made these answers, medico-legal report of Dr. Joselito A. Rodrigo and his testimony that
Mr. Witness? 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
WITNESS results of the investigation of the police operatives.

No, sir.122 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
Second. We have carefully reviewed the testimonies of Del Rosario on and alibi. The appellant’s contention that his own brother-in-law, Del
April 21, 1994 and May 20, 1997, and conclude that it is Del Rosario’s Rosario, bore a grudge against him on account of their personal
testimony during the hearing of April 21, 1994 which represents the truth. differences, deserves scant consideration.
The transcript of stenographic notes taken during that day is replete with
important details, logical and positive in character, and consistent even in
First. On cross-examination by the defense counsel on May 20, 1997, Del
light of the clarificatory questions of the trial court. Del Rosario, who was
Rosario was asked if he bore a grudge against the appellant on account of
then assisted by counsel, could not have contrived his April 21, 1994
the latter’s separation from his wife, Cecille, Del Rosario’s sister. Del
testimony where he implicated not only the appellant and Manansala but
Rosario categorically denied nurturing any grudge against the appellant:
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 ATTY. DE LEON
he, the appellant and Manansala, had done with precision to consummate
the crime they had planned so meticulously to accomplish. In contrast, the Do you know this person Ed de Jesus?
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 WITNESS
breath, affirmed and confirmed the truth of his answers to the questions
propounded on him during the said trial. Yes, sir.

Del Rosario claimed in his testimony during the hearing of May 20, 1997 Q Why do you know him?
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 A He was a former husband of my sister, sir.
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 Q Is it correct to say that Ed de Jesus and your sister were already
was not robbed of ₱5,000. For the court to acquit the appellant of robbery separated?
with homicide simply and merely because Del Rosario made a volte
face and disavowed his judicial confession on his bare claim that his mind A Yes, sir, almost 17 years.
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 Q And because they were already separated, you took grudge against Ed
because witnesses who had given them later on change their minds for de Jesus, is that correct?
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. A No, sir.

Page 20 of 71
Q Do you have any grudge against Ed de Jesus? who shot Ybasco. However, the identity of the conspirator who shot
Ybasco and Acosta is of no moment.
A None, sir.130
In People v. Escote, Jr.,137 the trial court ruled that treachery is aggravating
Second. In his October 8, 1997 letter, Del Rosario claimed that the in robbery with homicide. The aggravating circumstance of the use of a
appellant was even intending to send money to him and that he, Del vehicle in committing robbery with homicide is also attendant in this case.
Rosario, was expecting some money from the appellant. Del Rosario even The appellant and his cohorts used a vehicle when they abducted Ybasco
expressed hope that the appellant would help him first: 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
O cege (sic) Ed hanggang dito nalang at sana lagi kang mag-iingat diyan at of Criminal Procedure. The rule must be applied retroactively because it
ako’y umaasa na magpapadala ka dito sa akin. At siyempre alam mo na is favorable to the appellant.138 However, the additional killing is not an
walang Bigas. walang ulam. walang gas. At walang pera. Siguro naman mas aggravating circumstance in robbery with homicide. This is in accordance
higit mo akong dapat na matulungan. Kaysa sa ibang kakosa natin dito.131 with the ruling of this Court in People v. Regala139which is the prevailing
doctrine.
If, as claimed by the appellant, his brother-in-law Del Rosario falsely
implicated him in the heinous crime, Del Rosario should have manifested The imposable penalty for robbery with homicide as amended by Rep. Act
remorse and sought forgiveness from the appellant for his perfidy. Del No. 7659 is reclusion perpetua to death. Considering the presence of the
Rosario did not do so, and was even expecting financial help from the aggravating circumstance of treachery, and that no mitigating
appellant, the very person he falsely implicated. circumstance attended the commission of the crime, the trial court
correctly sentenced the appellant to suffer the death penalty, conformably
Third. In the Letter dated December 4, 1997, Del Rosario stated that he to Article 63, paragraph 1 of the Revised Penal Code.
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 The trial court ordered the appellant to pay ₱50,000 to the heirs of Ybasco
of Del Rosario to inveigle the appellant to send money to him. The and ₱50,000 to the heirs of Acosta as civil indemnity. It also ordered the
appellant did not adduce evidence to prove that animosity existed appellant to pay to the heirs of Ybasco ₱500,000 as moral damages. The
between him and his ex-wife, or between him and Del Rosario, on account trial court, however, failed to award exemplary damages. We shall, thus,
of the appellant’s separation from Cecille. The appellant and his ex-wife modify the decision of the trial court.
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 The heirs of Ybasco are entitled to ₱75,000 as civil indemnity. Although
not deserve credence. 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
The appellant’s bare denial of the crime charged and his alibi are indemnity.140
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 The heirs of Ybasco are entitled to exemplary damages in the amount of
and difficult to disprove.133 Furthermore, the appellant’s defenses of ₱25,000.141 The heirs of Acosta are, likewise, entitled to ₱25,000 as
denial and alibi were debilitated by his flight after learning that he was exemplary damages. Since Dolores Ybasco, the widow of the victim,
wanted by police authorities for robbery with homicide, and his hiding in testified for the prosecution on the factual basis for moral damages, the
Cabuyao, Laguna on November 20, 1994, where he was arrested. The heirs of Ybasco are entitled to, moral damages in the amount of ₱75,000.
appellant managed to evade the police authorities from March 10 or 11, However, the heirs of Acosta are not entitled thereto, for failure of the
1994134 by working in Cabuyao, Laguna, and in Binangonan, Rizal,135 while prosecution to present any of the heirs of the victim to testify on the
his family remained in Pampanga. We agree with the following factual basis for the said damages. The appellant is obliged to return to the
disquisitions of the trial court: heirs of Ybasco the ₱30.00 which Del Rosario took from Ybasco before he
was shot.

Additionally, working against the accused Eduardo de Jesus is his "flight"


from justice. After knowing that the police authorities were after him in IN THE LIGHT OF THE FOREGOING, judgment is rendered AFFIRMING
connection with this case, he went into hiding. He was brought to Court WITH MODIFICATION the Decision of the Regional Trial Court of Makati,
only after he was arrested by the PNP Regional Directorate Intelligence, Branch 4. The appellant Eduardo de Jesus is found GUILTY of robbery
Camp Vicente Lim, Calamba, Laguna, on November 20, 1995. (Records, p. with homicide under Article 294, paragraph 1 of the Revised Penal Code,
195). "Flight" according to the Supreme Court, is an indication of guilt. His as amended by Rep. Act No. 7659, and sentenced to suffer the death
reason that he feared for his life has no basis. 136 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
The trial court sentenced the appellant to suffer the death penalty on its exemplary damages. The appellant is, likewise, ORDERED to pay to the
finding that Ybasco was shot to death with treachery. The appellant heirs of Roberto Acosta ₱75,000 as civil indemnity and ₱25,000 as
contends that (a) the prosecution failed to prove that he shot the victim; exemplary damages. Costs de oficio.
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 SO ORDERED.
Ybasco was shot, he was handcuffed; hence, unable to defend himself.
G.R. No. 133226 March 16, 2000
We agree with the trial court and the Office of the Solicitor General. The
evidence on record shows that when the appellant and Manansala PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
abducted Ybasco in Makati, they handcuffed the victim and transported vs.
him to a sugar field in Cabuyao, Laguna. The appellant and Manansala LOCSIN FABON @ "Loklok," accused-appellant.
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 PER CURIAM:

Page 21 of 71
Circumstantial evidence coupled with accused-appellant's flight from the fetching water?" 11 He responded in the negative. He notice that the
town where the crime was committed sealed his fate and merited his forehead, t-shirt and hair of accused-appellant were stained with
conviction of a heinous crime and the corresponding imposition of the blood. 12 He also noticed that accused-appellant was carrying a plastic
supreme penalty of death. 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
In an Information filed before the Regional Trial Court of Hilongos, Leyte, shoulders. 15 Later on in the day, he was informed by a certain Emma about
docketed as Criminal Case No. H-642, accused-appellant Locsin the death of their neighbor, Bonifacia Lasquite. 16 Because of this, he
Fabon, alias "Loklok'' was charged with the crime of robbery with informed Roberto Lasquite, the son of Bonifacia Lasquite, of his encounter
homicide accompanied by rape and intentional mutilation. 1 The with accused-appellant in the early morning of the ill-fated day. 17
information reads:
The second witness presented by the prosecution was Mario Vinculado.
That on or about the 23rd day of April 1995, in the Municipality of He testified that he has been a resident of Brgy. Santa Cruz, Hilongos,
Hilongos, Province of Leyte, Philippines and within the jurisdiction of this Leyte, since his birth and, as such, he knows both accused-appellant and
Honorable Court, said accused at the house of the victim did then and the victim. 18 Sometime in the second week of August of 1995, he went to
there, willfully, unlawfully and feloniously with intent to gain by means of Ampayon, Butuan City together with a police officer named Lumayno from
force and violence against one BONIFACIA LASQUITE, take carry away, the Hilongos Police Station. 19 He went to the said town because he was
sum of money consisting of bills of assorted denominations and coins requested by Roberto Lasquite to accompany police officer Lumayno in
amounting to TWENTY FIVE THOUSAND PESOS (P25,000.00) more or ascertaining whether accused-appellant was indeed in Ampayon pursuant
less, Philippine Currency, and by reason or on occasion of the robbery the to an information sent by the Butuan Police Station to the Hilongos Police
same accused attack (sic) and take (sic) the life of the victim with the use Station. 20 When they arrived in Ampayon, they went to the municipal jail
of [a] bladed weapon, thus wounding: 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
1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with informed Mario Vinculado that he had a companion when he assaulted
a depressed skull fracture; 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
2. Stabbed (sic) wound (punctured-like) at the (R) side of the epigastric informed the Hilongos police and Roberto Lasquite of the admission made
area; to him by accused-appellant.

3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L) The prosecution then presented Dr. Conrado Abiera as its expert witness.
parasternal line; 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:
4. Depressed fracture (L) parieto-occipital area;

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. Brgy. Sta. Cruz,
Place of Autopsy:
Hilongos, Leyte
ACTS CONTRARY TO LAW.2
General Survey: Fairly build (sic), fairly nourished, fairly developed, whole
Upon being arraigned on 26 September 1995, accused-appellant, assisted body covered with with (sic) blanket, when removed the face is (sic)
by counsel de oficio, Atty. Mario Alonzo of the Public Attorney's Office, covered with moist, torned (sic) cloth the upper half of the body covered
pleaded "not guilty" to the offense charged.3 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
The prosecution presented Benjamin Milano, the nine (9) year old nephew
hematoma formation on the anterior chests wall.
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 Pertinent Findings:
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 1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with
then went on his way home.6 However, while still near the house of a depressed skull fracture.
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 2. Stabbed (sic) wound (punctured-like) at the (R) side of epigastric area.
(5) meters way, 10 accused-appellant asked him: "Toy, is there somebody
Page 22 of 71
3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L) sent to them by the victim's sister who lives in Denmark. 41 Later on in the
parasternal line. day, Benjamin Milano informed him of his encounter with accused-
appellant while he was fetching water. 42 Because of this, he and the
4. Depressed fracture (L) parieto-occipital area. 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
5. Hematoma formation, lower jaw and at the base of the neck. informed by police officer Lumayno that accused-appellant had been
arrested in Butuan City. 45 Roberto Lasquite than went to their councilor,
6. Multiple hematoma formation at the epigastric area, RUQ and anterior Mario Vinculado, to request the latter to go to Butuan City and confirm, if
chest wall. accused-appellant indeed killed his mother.

7. Hematoma formation noted on both sides of vaginal canal and near the In his defense, accused-appellant took the witness stand and denied the
urethral opening. 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
8. Hematoma formation (L) hand, dorsal aspect of metacarpo-phalangeal Lasquite, her aunt. 47 He stated that in the morning of 22 April 1999, he
joint. 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
9. Tongue half-bitten and directed to the right side. 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
Cause of Death Internal Hemorrhage due to stabbed (sic) wound at the
heart and liver area. Suffocation secondary to strangulation. 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
(signed) 8:00 a.m. 53 Thereafter, he went to the house of the Brgy. Captain of Brgy.
DR. CONRADO B. ABIERA III Bliss to get a residence certificate. 54 He was informed by the Brgy. Captain
Medical Officer III 26 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
During his testimony, Dr. Abiera clarified the statements he made in the residence certificate. 56 He and his live-in partner then proceeded to
gross autopsy report. He stated that lacerated wound in the victim's Butuan City and arrived thereat in the morning of the following
forehead and the depressed skull fracture, reported as the first item under day. 57 During their stay in Butuan City, they ware unable to locate her live-
the heading Pertinent Findings, signified that the victim was hit with a in partner's father. When inquired upon with regard to the testimony of
blunt instrument which could have been a stone, a piece of wood or the Benjamin Milano, accused-appellant denied that he saw the child in the
back portion of a bolo. 27 He added that the same blunt instrument may morning of 23 April 1995. On cross-examination, accused-appellant
have also been used in the depressed fracture in the parieto-occipital testified that he does not know of any reason why Benjamin Milano
area. 28 Dr. Abiera also explained that the punctured-like stab wounds, testified the way he did. 58 He also admitted having seen Mario Vinculado
reported as the second and third items under the heading Pertinent in the police station while he was incarcerated and being investigated in
Findings, meant that the assailant used an instrument similarly shaped as Butuan City on account of another charge for robbery. 59 Despite his
an ice pick or a sharpened welding rod. 29 With regard to the hematoma having seen Mario Vinculado, he denies having spoken with the latter and
formation at the lower jaw and at the base of the neck, reported as the fifth that he admitted to killing the victim. 60 He reasoned that he was unable to
item above, this signifies that the victim was strangled. 30 Dr. Abiera added speak with Mario Vinculado since he was being investigated by the
that the strangulation of the victim caused her to struggle for air and, in police. 61 He also stated that when he left for Butuan City, he was not aware
the process, she probably bit her tongue which, thus, accounts for the that Bonifacia Lasquite was dead. 62 He, however, admitted that while he
finding in the ninth item above. 31 He concluded that this strangulation was in Butuan City, he was informed by a certain Citas about the killing of
could not have been caused by a wire or a rope since these instruments the victim and that he was being made responsible for the
would have left marks in the neck of the victim. In his expert opinion, Dr. same. 63 Nevertheless, despite learning of this matter, he admitted not
Abiera deduced that the victim was strangled through the use of a having exerted any effort to inform Roberto Lasquite of his innocence and
handkerchief or some other piece of cloth. 32 With regard to the hematoma justified his complacency with the excuse that he had differences with
formation in the vaginal canal and near the urethral opening, the seventh Roberto Lasquite. 64 Their differences arose sometime in 1992 when he
item above, he explained that this could mean that the victim was was accused by Roberto Lasquite of having stabbed the latter's
raped. 33However, he clarified that he cannot assert such conclusion with carabao. 65 Accused-appellant also admitted having escaped from prison
certainty because he did not examine if there were sperm cells in the during the pendency of the present case before the lower court. 66 He was,
victim's vagina since the autopsy was conducted in a barrio where there however, recaptured by prison guards for which he suffered a gunshot
was no laboratory. 34Looking at the gross autopsy report in its entirety, Dr. wound. 67 When asked why he escaped, accused-appellant reasoned that
Abiera concluded that the assault on the victim could have been done by his decision to escape was due to the fact that he was denied his conjugal
more than one assailant considering that three devices were used in visits by prison authorities since Prima Naul was only his live-in
attacking the victim, i.e., a blunt object, an ice-pick like tool and a cloth-like partner. 68
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 second and last witness presented by the defense was Remedios
Lumayno, the secretary of the barangay who issued accused-appellant's
The fourth and final witness for the prosecution was the son of the victim, residence certificate. 69 She corroborated the testimony of accused-
Roberto Lasquite. He testified that on 22 April 1995, he went with a friend appellant that the latter obtained a residence certificate from her on 23
to Sitio Panas, Brgy. Bilibol, Southern Leyte, to attend a fiesta. 36 He stated April 1995 at around eight o'clock in the morning. 70 She also stated that
in the said place until the following day. On 23 April 1995, at around ten when accused-appellant secured his residence certificate, the latter
o'clock in the morning, a certain Costan Taping informed him that his explained to her that he was going to use it for his trip to Marangog where
mother was dead. 37 He immediately went home together with Costan he will harvest coconut. 71
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 In its Decision, dated 15 December 1997, the lower court convicted
things scattered. 39 When he searched for the shell where they kept their accused-appellant of the crime of robbery with homicide and rape
money, it was no longer in its hiding place in their cabinet. 40 Inside the aggravated by dwelling. The pertinent portion of the decision reads:
missing shell was the Twenty Five Thousand Pesos (P25,000.00) that was
Page 23 of 71
There having been sufficient and convincing evidence by the prosecution, picture pointing towards the conclusion that the accused is the author of
the court finds and so holds the accused liable for robbery with homicide the crime.
and rape as charged. Robbery with Homicide is defined and penalized
under Article 294, number 1 of the Revised Penal Code, as amended by In the case at bar, the circumstantial evidence presented by the
R.A. 7659 with the penalty of Reclusion Perpetua to Death, when by reason prosecution clearly establishes the guilt of accused-appellant and
or on occasion of the robbery, the crime of Homicide shall have been overpowers his defense of denial and alibi. Aside from the fact that denial
committed or when the robbery shall have been accompanied by rape or and alibi are inherently weak defenses, accused-appellant's alibi of being
intentional mutilation or arson. The homicide committed by the accused in his house at 5:30 in the morning does not preclude his physical
on the occasion of the robbery of victim Bonifacia Lasquite was presence in the house of the victim considering that their respective
perpetrated inside her home. Consequently, the aggravating circumstance residences are only 380 meters apart. Moreover, the proven
of dwelling should be appreciated to maximize the penalty. circumstances in the instant case, when viewed in their entirety, are as
convincing as direct evidence and, as such, negate the innocence of
WHEREFORE, premises considered, the Court finds the accused LOCSIN accused-appellant, to wit: (1) accused-appellant was present at the scene
FABON, alias "Loklok" GUILTY beyond reasonable doubt of the crime of of the crime; (2) he had blood stains on his body and clothes, had a bolo
Robbery with Homicide and Rape, penalized under Article 294, number 1 tucked in his waist and was carrying a plastic bag when he was seen
of the Revised Penal Code, as amended by R.A. 7659 and there being leaving the scene of the crime; (3) he left Brgy. Sta. Cruz for Butuan City
aggravating and no mitigating circumstance hereby SENTENCES him to on the same day when the victim was killed; (4) he admitted to Mario
suffer the maximum penalty of DEATH. 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
In addition, the accused is ordered to pay the heirs of the victim Bonifacia was being made accountable for the death of Bonifacia Lasquite; (6) he
Lasquite the following sums: 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
a. P50,000.00 as indemnity for Bonifacia Lasquite's death; foregoing evidence is consistent with the culpability of the accused and
inconsistent with his defense of denial and alibi. Not the least worthy of
b. To pay the sum of P25,000.00 by way of reparation of the stolen cash notice is the fact that accused-appellant twice sought to escape liability:
money. 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
Cost taxed against the accused. 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
SO ORDERED. 72 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
The case is now before us on automatic review pursuant to Section 10 of
Rule 122. 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,
Parenthetically, we note that the trial court inaccurately designated the it still caught up with him in Butuan City.
crime committed as "robbery with homicide and rape." 73 When the
special complex crime of robbery with homicide is accompanied by
In the appreciation of evidence in criminal cases, it is a basic tenet that the
another offense like rape or intentional mutilation, such additional offense
prosecution has the burden of proof in establishing the guilt of the accused
is treated as an aggravating circumstance which would result in the
for all the offenses he is charged with — ei incumbit probetio non qui
imposition of the maximum penalty of death. 74 In the case of People
vs. Lascuna, 75 we said: 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
We agree with the Solicitor General's observation that the crime prosecution has sufficiently established accused-appellant's guilt for the
committed was erroneously designated as robbery with homicide, rape crime of robbery with homicide, it has, however, failed to substantiate the
and physical injuries. The proper designation is robbery with homicide alleged aggravating circumstances of rape and intentional mutilation. As
aggravated by rape. When rape and homicide co-exist in the commission testified upon by the prosecution's expert witness, Dr. Abiera, it cannot be
of robbery, it is the first paragraph of Article 244 of the Revised Penal Code conclusively stated that the victim was raped. Due to the fact that the
which applies, the rape to be considered as an aggravating circumstance. . entirety of the evidence presented in this case are all circumstantial, the
. . 76 fact that the victim was no longer wearing her underwear when her
cadaver was discovered and that the victim had hematoma formations on
We now come to the merits of the case. 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,
The core issue the instant case is whether the circumstantial evidence on as also testified upon by Dr. Abiera, no vital body part was severed.
record forms an unbroken chain which leads to the conclusion that Likewise, the fact that the victim's tongue was half-bitten does not prove
accused-appellant committed the crime for which he is being made intentional mutilation since it could have been caused by the victim
accountable for, to the exclusion of all others. Circumstantial evidence is herself when she was fighting to breathe for air while she was being
defined as that which indirectly proves a fact in issue. 77 Under Section 4 strangled by accused-appellant.
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 However, despite our finding that accused-appellant cannot be made
derived are proven; and (c) the combination of all the circumstances is liable for the aggravating circumstances of rape and intentional
such as to produce a conviction beyond reasonable doubt. 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
The peculiarity of circumstantial evidence is that the guilt of the accused circumstance of dwelling 80 which was alleged in the information and duly
cannot be deduced from scrutinizing just one particular piece of evidence. proven during the trial. Dwelling is considered aggravating primarily
It is more like a puzzle which, when put together, reveals a convincing 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
Page 24 of 71
robbery with violence or intimidation because this class of robbery can be ACTS CONTRARY TO LAW."1
committed without the necessity of trespassing the sanctity of the
offended party's house." 83 He pleaded "not guilty" during arraignment and the action proceeded to
trial.
The penalty for robbery with homicide is reclusion perpetua to death
which is composed of two (2) indivisible penalties.1âwphi1 Applying The evidence for the prosecution shows that Desiree was a singer in a
Article 63 of the Revised Penal Code, the imposable penalty in the present band which regularly plays at the Gloss and Glitters Disco located in
case is death due to the presence of the aggravating circumstance of Tabaco, Albay. On the morning of January 8, 1996, she went home to Sipi,
dwelling and the absence of any mitigating circumstance. 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
Although four Justices continue to maintain that Republic Act No. 7659, crossed a street where two tricycles were parked. She woke up one of the
insofar as it imposes the death penalty, is unconstitutional, they drivers and inquired whether she could be brought to Sipi. Getting a
nevertheless submit to the ruling of the majority that the law is positive response, she boarded it. Upon reaching her place, she told him to
constitutional and that the death penalty should accordingly be imposed. stop and handed to him her fare. To her surprise, what she received in
return was not loose change, but a slap.
IN VIEW Of THE FOREGOING, the Court finds the accused Locsin
Fabon, alias "Loklok." guilty beyond reasonable doubt of the crime of The driver then began to maul her. Desiree fought back as hard as she
"robbery with homicide" under Article 294 (1) of the Revised Penal Code, could, but this made the driver more ferocious in his assault. She was
as amended by Republic Act No 7659, 84 with the aggravating strangled, boxed and kicked. She was repeatedly stabbed with a screw
circumstance of dwelling, and hereby sentences the said accused to suffer driver on her face, head, and different parts of her body. Her head was
the supreme penalty of death, to indemnify the heirs of Bonifacia Lasquite banged against the sidecar. She realized that her struggle was in vain and
in the amount of Fifty Thousand Pesos (P50,000.00) and to pay Twenty would only put her life in greater danger. She stopped resisting and
Five Thousand Pesos (P25,000.00) as actual damages for the stolen pretended to be dead.
money.
He then transported her to another place. He lifted her from the tricycle
In accordance with Section 25 of Republic Act No. 7659, amending Article and she thought she would be thrown to a ravine or cliff beside what
83 of the Revised Penal Code, upon finality of this decision, let copies of appeared to be an abandoned house. lnstead, she was tossed to the
the records of this case be forthwith forwarded to the Office of the ground, The driver removed her pants and panties. She could not resist,
President of the Philippines for possible exercise of clemency or fearing death, After her garments were removed, her legs were spread
pardoning power. apart and he copulated with her.

SO ORDERED.1âwphi1.nêt 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,
ROBBERY WITH RAPE 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
G.R. No. 136394 February 15, 2001 reached a house, which turned out to be the dwelling place of witness
Engineer Antonio Balacano located at Sybil Subdivision, Sipi, Daraga. She
PEOPLE OF THE PHILIPPINES, plaintiff- appellee, cried for help.
vs.
HERSON NAAG y LOBAS, accused-appellant. 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
PUNO, J.: 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
One of the more interesting conceptual exercises in the field of Criminal she was given medical treatment. Dr. Jose Solano testified that the girl was
Law is the characterization of a crime. The challenge is not only to prove in pain when he examined her and that she sustained multiple lacerations
existence of its elements. The challenge is to correctly categorize it. In the and stab wounds on different parts of her body, and had blackening of her
case at bar, a man sexually defiled then immediately divested his woman- left and right eyes. Dr. Aileen Francis Bartilet examined Desiree's genitalia
victim of her belongings. Is he guilty of the special crime of and noted the absence of any sign of injury: there was no bleeding, no
Robbery with Rape or the separate crimes of Robbery and Rape? The laceration of the hymen, no contusion in the vulvar wall of the vagina, and
answer lies in his intent. no abrasion.

The accused in this case is a certain indicted for Robbery with Rape under Later that morning of January 8, 1996, policemen came to the hospital to
an Information which reads: 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
"That on or about the 8th day of January, 1996 at Daraga, Albay x x x the 2 Domingo Mabini happened to apprehend one Herson Naag y Lobas, a
above named accused, armed with a screw driver, by means of violence tricycle driver, for driving a public utility tricycle without the necessary
and intimidation, did then and there willfully, unlawfully and feloniously, license. Naag and the vehicle were brought to the police station of Daraga.
have carnal knowledge of the complainant Desiree Gollena, against her Perena and Mabini realized that Naag fit the description of the malefactor
will, by inflicting upon her with the use of said screw multiple serious given by Desiree. They brought the confiscated student driver's permit of
physical injuries, and thereafter said accused, having been fully satisfied Naag (which contains his photograph) to the hospital for identification.
of his carnal lust over said Desiree Gollena and believing her to be dead, Their hunch was confirmed when Desiree, upon being shown the permit,
with intent of gain, divested and took her personal belongings, to wit: (1) identified the man in the picture as the one who raped and robbed her.
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 When the policemen returned to the station, Naag was already gone, but
at P600.00 to the damage and prejudice of said Desiree Gollena. 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.
Page 25 of 71
A criminal complaint was then filed against Naag. On February 25, 1996, latter, as a trier of fact, is in a better position to appreciate the same. The
he was arrested by the NBI agents of Naga City at Tagkawayan, Quezon. only exceptions allowed are when the trial court has plainly overlooked
certain facts of substance which, if considered, may affect the result of the
The accused alleged, in his defense, that it was impossible for him to be case, or in instances where the evidence fails to support or substantiate
the author of the crime at bar. He claimed that at the time and date of the the lower court's findings and conclusions, or where the disputed decision
incident, he was sleeping in their house approximately seven kilometers is based on a misapprehension of facts. 5 This case does not fall under any
away from where it happened. His tricycle was not in a serviceable of the exceptions. Hence, there is no reason for us to modify the factual
condition then, and he was repairing it the night before. It was fixed only findings of the lower court.
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 Even then, the appellant raises two points in support of his assignment of
all of the motor shops were closed. Hence, he alleged that he could not error designed to sow in our minds seeds of doubt. The first relates to the
have operated on the Sipi route on the 8th as his tricycle was not in medical evidence on record while the second deals with his identity.
running condition. He explained that he was in Tagkawayan when he was
arrested because he had undergone hospitalization and was on an errand. 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
The defense also called two other witnesses to the stand who backstopped examined almost immediately after the assault. According to him, the
the testimony of the accused. It presented his wife who basically findings of said medical expert negate the charge of rape. On the other
reiterated the story of her husband. She said that he was with her from the hand, the prosecution contends that the lack of injury and the healed
night of January 7 up to the morning of January 8, at about 8:30, when he laceration could be attributed to the sexual intercourse she had with her
had to buy the spare part that he needed for his tricycle. Similarly, it boyfriend.
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 The appellant's argument fails to impress. It is to be noted that Dr. Bartilet
on his tricycle.1âwphi1.nêt herself explained that her findings did not eliminate the possibility of
sexual intercourse. She opined that it must have been done "only outside
In the end, the trial court chose not to believe Naag, It held: 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
The accused in his defense put up alibi, a shabby excuse, a defense discharged semen on the external genitalia even without penetrating into
indicties never seem to tire of. (People vs. Bracamonte, 257 SCRA 380) the vagina.
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 In rape cases, what is material is that there is penetration of the female
alibi is worthless in the face of his being positively identified by the victim organ no matter how slight.7 In a long line of decisions, we have ruled that
Desiree. (People vs. Rivera, 242 SCRA 26)"2 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
However, the trial court did not convict him of the crime he was originally accused's penis knocks at the door of the pudenda it suffices to constitute
charged with, which is Robbery with Rape. Instead he was meted out two the crime of rape.9
different sentences for the separate crimes of Robbery and Rape, viz:
The appellant next assails the identification made by Desiree. He contends
"WHEREFORE, premises considered, the accused Herson Naag y Lobas is that it was still dark at the time of the incident. He argues that when people
hereby found GUILTY beyond reasonable doubt of the crime of Rape under board a tricycle, they do not usually focus their attention on the driver. He
Art. 335 (1) of the Revised Penal Code as amended, and he is hereby states that the identity of the driver could be the least of Desiree's concern
sentenced to suffer the penalty of imprisonment of Reclusion Perpetua for at 4 o'clock in the morning, she would have just wanted to go home and
with all the accessory penalties thereto appertaining, to pay Desiree rest in the comfort of her bed.
Gollena P50,000.00 as Indemnity and P50,000.00 as moral damages.
We are not persuaded. Desiree could not have failed to recognize the
The accused Herson Naag y Lobas is also found GUILTY beyond reasonable appellant because she was the victim of the assault. A truism founded on
doubt of the separate crime of Robbery under Art. 294 (4) of the Revised ordinary experience is that victims of criminal, violence often strive hard
Penal Code, and taking into consideration the Indeterminate Sentence to recognize their assailants.10 Furthermore, a victim has a natural knack
Law he is hereby sentenced to suffer the penalty of imprisonment of ten in remembering the face of an assailant for she, more than anybody else,
(10) years of Prision mayor medium in its maximum period as the would be interested in bringing the malefactor to justice. 11 On the other
minimum to fourteen (14) years, ten months and twenty (20) days of hand, it would be unnatural for someone who is interested in vindicating
Reclusion Temporal medium period in its medium period as the maximum the crime to accuse somebody other than the real culprit.12
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 To be sure, Desiree was very emphatic in her identification of the
if return cannot be had and the cash of P1,800.00. Costs against the appellant as her assailant, thus:
accused.
"Court: Now that person Herson Naag, how is he related to the accused
SO ORDERED."3 in this case?

Dissatisfied with the verdict, the accused interposed this appeal. In his Desiree : He is the one and same person who raped and robbed me.
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 Q: You said it was the first time you saw the accused on January 8, 1996.
It was still dark is (sic) it not?
We affirm the conviction.
A: It was bright at the centro.
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 Q: But it was not in park (sic) he was sleeping at that time in his tricycle.
the assessment of the trial court on factual matters considering that the Is it not? (sic)
Page 26 of 71
A: It was bright because there were lights. 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
Q: But you saw him only once on Jan. 8, 1996. How were you able to the offense he has committed. This Court in People vs. Dinolo,17 citing the
recognize him in the Municipal building when you were asked to identify cases of People vs. Conostre18 and People vs. Foigono,19 held:
him after one month, being detained?
"x x x if the intention of the accused was to rob, but rape was committed
A: As I have said, I can never forget his face."13 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
Moreover, Desiree should have no difficulty in identifying the appellant should be viewed as separate and distinct. To be liable for the complex
because when she first approached him at the centro to hire his services, crime of robbery with rape the intent to take personal property of another
the place was bright and well-lighted. must precede the rape."

The appellant further argues that Desiree's initial identification of him We must ascertain the force which moved the appellant when he
through his picture is unreliable considering the physical and emotional employed violence and intimidation against the person of Desiree. It is
state she was in at that time. It is urged that due to her physical and mental true that the appellant raped Desiree before she was dispossessed of her
instability, the showing of the student permit must have generated a personal properties. This, however, is not decisive. Article 294 of the
prejudice ill her mind that "the person shown in the picture of the driver's Revised Penal Code does not distinguish whether the rape was committed
ID is the one who assaulted her."14 before, during or after the robbery. It suffices that the robbery was
accompanied by rape.20
The argument proceeds from a wrong assumption. It assumes that the
picture was shown before the victim gave the description to the police. It We agree with the conclusion of the trial court that rape was the primary
was the other way around. Thus: 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
"Court: Have you seen him in that parking area before January 8, 1996? reasons for its ruling, there exists sufficient evidence on record from
where such deduction can be made.
Desiree : No, your honor.
First. It is obvious from the degree and character of the violence and
intimidation which the appellant employed (and when he employed it)
Q: Now, while you were in the Hospital you said that an ID was shown upon Desiree that his intent was to rape her. He applied such force as to
to you and the picture of a person and whose picture you recognize to be render her resistance to his lust inutile. The kind of force used was
that of a person who raped you. Who showed you that picture? unnecessary if he only planned to rob Desiree. On the other hand, the
excessive force was clearly meant to attain his lustful scheme. Resultantly,
A: The Police Officer. when he finally forced his bestial desire on her, he was able to traverse, in
a manner of speaking, the path of least resistance.
Q: How come that the Policeman was able to go to Albay Provincial
Hospital with that ID? Second. The appellant transported Desiree from where he first mauled
her to an abandoned place. All the time that Desiree was helpless after her
A: Because when they interviewed me in the hospital, I gave them the mauling, appellant did not concern himself with robbing Desiree even if
description of the accused and his tricycle."15 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
The point is made more explicit during Desiree's cross-examination: well.

"Atty. Gomez (continuing on cross-examination) 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.
Q: Now, on that date Jan. 9, 1996 were you told by the policemen that What is apparent is that he only: (1) took her watch and bracelet, both
the person whose ID was shown to you was one of their suspects? 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
A: The policeman told me to identify the person in the ID. itself.

Q: Were you told that the owner of the ID was apprehended for We disagree, however, on the ruling of the trial court that the appellant is
violation of traffic law? guilty of robbery. He should only be convicted of theft because, when he
took the personal properties of Desiree, the element of violence and
A: No, Sir. I was just asked to identify him. 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,
Q: After the ID was shown to you that was the time when you also gave
incapable of putting any form of opposition.
them the description of the person, is (sic) it not?

The penalty for theft is determined by the value of the property taken.
A: No, Sir. It was on Jon. 8,1996 when I gave the description of the
Under Article 309 of the Revised Penal Code, any person guilty of theft
tricycle driver."16
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
We shall now ascertain the nature and extent of the criminal responsibility but does not exceed 6,000 pesos." Applying the Indeterminate Sentence
of the appellant. The issue is whether the crime committed by him is Law, the minimum penalty to be meted out on the appellant Naag should
Robbery with Rape or the two separate felonies of Robbery and Rape. 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
Page 27 of 71
correccional. Considering that no aggravating or mitigating circumstance
1. Gold Bracelet ------------------------------ P 500.00
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 2. Gold ring ------------------------------------- 4,000.00
of prision correccional as the maximum.
3. Cash money -------------------------------- 50.00

IN VIEW WHEREOF, the impugned decision is hereby MODIFIED. The TOTAL P4,550.00
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. 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
The accused-appellant Herson Naag y Lobas is also found GUILTY beyond other damages as may be allowed by law.
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 Contrary to law.
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 Surigao City, Philippines, August 21, 1995."1
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 the seven accused, the record reveals that five of them remain at large.
of P2,600.00 if return cannot be made and the cash of Pl,800.00. Costs
Only the first two were placed under the custody of the authorities: Seguis
against the accused.
and Estebe, and they are the appellants in this case. During arraignment,
both entered a plea of NOT GUILTY. Trial then proceeded.
SO ORDERED.
The prosecution's version of the story is based mainly on the private
G.R. No. 135034 January 18, 2001 complainant's recollection of what happened that dreadful night. The
offended party is one Juliet A. Magamayo, a nineteen-year old unmarried
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, girl residing at San Jose, Mainit, Surigao del Norte. According to her, in the
vs. afternoon of August 18, 1995 at about 3 o'clock, she went to Barangay
ADRIANO SEGUIS a.k.a. "JUNIOR", ROSALITO ESTEBE a.k.a. Togbongon, Surigao City, a few kilometers away from the city proper. Her
"DODONG", RODRIGO DOQUILA a.k.a. "LOLONG" (At Large), ELMER purpose was to collect a loan of fifty pesos from Michael Balantucas, a
CANICO (At Large), LOLOY GIBERTAS (At Large), BERFEL DELA CRUZ friend of long standing whom she met when she was still staying with her
(At Large), and JOHN DOE (At Large), accused. 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
ADRIANO SEGUIS and ROSALITO ESTEBE, accused-appellants. 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
PUNO, J.: 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
Juliet A. Magamayo, a nineteen-year-old barrio lass from an obscure town since their parents already died. Juliet agreed as she has slept in the place
in Surigao del Norte complains that she has been ravished, then robbed by before. She thought that it was too late and perilous to go back home.
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 Little did Juliet know that, in a cruel twist of fate, danger would visit her in
bracelet, they also divested her of her sense of security. She claims they the very refuge where she sought safety. Following a dinner of cooked
did not only deprive her of her last remaining fifty pesos, they denied her bananas plus a few more stories, she and the Balantucas siblings prepared
furthermore a future.1âwphi1.nêt 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
Juliet pointed to the following men as the ones who committed the outrage by the noise brought about by the commotion of five men who entered the
against her womanhood: Adriano Seguis a.k.a. Junior, Rosalito Estebe house. She got up and saw Rodrigo Doquila pointing a knife at the throat
a.k.a. Dodong, Rodrigo Doquila a.k.a. Lolong, Elmer Canico, Loloy Gibertas, of a crouching Michael. She noticed that Lilibeth was not beside her
Berfel dela Cruz, and a certain John Doe. They were charged with the crime anymore as it turned out that the young girl went to the kitchen to relieve
of robbery with multiple rape and were indicted in an Amended herself. Afraid, she shouted for help to Michael who understandably could
Information which reads: not do anything being himself mentally preoccupied with, in a manner of
speaking, saving his own neck.
"That on or about August 19, 1995, in Barangay Togbongon, City of
Surigao, Philippines and within the jurisdiction of this Honorable Court, At this juncture, Elmer Canico grabbed the hair of Juliet and commanded
the above named accused, conspiring, confederating together and with her to lie down on the floor. Loloy Gibertas held her right hand even as
mutual understanding with one another, with lewd designs and by means someone else was holding her heft. She struggled and twisted her body, so
of force and intimidations (sic), did then and there willfully, unlawfully another man had to restrain her legs. Elmer Canico removed his pants and
and feloniously have carnal knowledge of Juliet A. Magamayo, while the brief, and knelt in front of her. He stripped Juliet of her pants and
latter was already sleeping, by taking turns in raping her against her will underwear before continuing to place himself on top of the woman. He
and without her consent and on same occasion, accused with intent to gain inserted his penis into her vagina then made a push and pull movement.
and by means o violence and intimidation, took, stole and carried away the Feeling pain, she fought to free herself. She kicked her legs but Canico did
following personal belongings of Juliet A. Magamayo, to wit: 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.

Page 28 of 71
The next time, it was Doquila who introduced his penis into the lady's they also went inside the room. Lilibeth remained where she was as they
private part. Perhaps realizing the futility of her struggle, Juliet tried to told her not to move.
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 Going back to Juliet's testimony, it appears that later in the morning of
movements stopping only afterwards when he was able to satisfy his lust. August 19, 1995, someone fetched Francisco Pecante, a member of the
Doquila was replaced by Lolong Gibertas who had coital intercourse with local CVO, who initially investigated the incident. Then he sought Perfecto
the hapless victim. Again she resisted and shouted for help. The men Pagas, the barangay captain of Togbongon. Together, they brought the
around her told her to remain silent if she does not want to get killed. victim to the Surigao Provincial Hospital where she was physically
Shortly, Gibertas stood up and informed Berfel dela Cruz that it was his examined and medically treated.
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. 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.
Almost after the five predators finished ravaging their prey, Adriano Among his findings was an abrasion of the labia majora. In his expert
Seguis and Rosalito Estebe came into the room. Juliet already knew them opinion, the injury could have probably been caused by a blunt object like
even before this incident. She recognized the two that night by means of a an erect human penis. Another member of the medical staff was also
flashlight when Estebe brought to illuminate the area. Earlier, the small presented by the prosecution: Elsa Adlawan who was employed as a
kerosene lamp had been extinguished by the five men. As expected, Estebe medical technologies by the hospital. She declared that on the same date,
laid himself on top of the girl, who fought weakly against her new she received a vaginal specimen taken from Juliet for a laboratory
tormentor. He rammed his penis into her vagina. He got up on his feet only evaluation for the presence of spermatozoa. After conducting the required
after some minutes of sexual activity. Then Elmer Canico returned to the tests, she determined the said specimen to be positive for spermatozoa.
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 With the prosecution resting its case, the defense made its counter-
Seguis. The latter inserted his male organ into her private part and presentation of the facts. It first offered Nilda Cabug-os, who, per her own
performed the same push and pull maneuverings using his buttocks. The declaration, is a friend of the victim but not related to her. She recalled
victim begged him to stop for she could not bear it anymore. Seguis told that Juliet arrived at her house in Togbongon at about four o'clock in the
her to keep quiet. 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
When Seguis was done, he rose to his feet and went to the kitchen. He came company of a male escort, one Jeffrey Lerio. Later, Juliet would again leave
back with a plate of rice which he gave to the sobbing lady. Juliet the house with Jeffrey for an undisclosed destination. By the time the clock
pretended to eat the rice only so that she would not be raped anymore. struck eight, Juliet came back to the house. As a matter of hospitality, Nilda
She did not utter a word but cried a river of tears over her heartbreaking extended an invitation to her guest to spend the night in their abode,
experience. She requested Seguis to help her up and she sat down in a which invitation Juliet readily accepted. The latter was already sleeping
corner. Rosalito Estebe was seated on a nearby trunk. When Seguis tried when some young men came to drop by. She rose to entertain her visitors.
to blame her for what took place, she answered that the five men sexually More than that, she went out with them. And although she asked Nilda's
abused her. Michael appeared and Juliet asked him how it happened. permission, she did not say where they were going. It was the last time she
Michael replied that he also did not know because they were all asleep saw her that night.
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. 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
Juliet discovered later on that she had been despoiled of her gold ring about going out so late in the night but Juliet's persistence made them
worth P4,000.00 and her gold bracelet worth P500.00. Furthermore, her yield. She remembered that Juliet was wearing maong pants and a blouse
cash money amounting to P50.00 was no longer in her pant's pocket. She on the day of the incident. She also wore a cheap wristwatch worth about
admitted though that she was not aware who among the accused carried P35.00, a small belt worth approximately P30.00, a headband and shoes
away the aforementioned personal belongings while she was being made of cloth. She did not notice any fancy jewelry.
assaulted by them.

Another witness, Perfecto Pagas, gave evidence that he is a barangay


The prosecution presented two other witnesses who corroborated Juliet's kagawad of Togbongon for three years, although a tricycle driver by
testimony. Michael Balantucas confirmed that the seven accused indeed vocation. He came to know of Juliet not only because she is a frequent
illegally entered their house and took turns in sexually defiling Juliet. The passenger but allegedly due to her reputation in the locality of associating
rapes were committed right before his eyes. He observed how one by one herself with different men. According to Pagas, sometime in March 1995,
each of them was able to impose his own bestial will against the lady. He Juliet complained to him in the office of the barangay council that she was
very much wanted to help his visitor whom he only invited that night. But raped by five men. She did not identify any names. The complaint was not
as much as he wanted to, he could not do anything, since all the while that pursued as he heard later on that she has been paid. He admitted too that
the rape was going on, somebody was pointing a knife at his throat. He he failed to enter the complaint in the official records on the excuse that
was practically rendered impotent by the threat that something bad might Juliet anyway did not return anymore.
happen to him or his siblings.

In his defense, the accused Adriano Seguis testified that on March 9, 1995,
For her part, Lilibeth Balantucas recounted, among other things, that she Juliet approached him and made a request for him to bear witness in a
woke up at around midnight to answer a call of nature. She went to the rape case she was about to file. It was not clear whether this is the same
kitchen to urinate when five men suddenly entered the bedroom. She incident of the alleged rape that she complained to Kagawad Pagas. He
identified them to be the accused Elmer Canico, Lolong Doquila, Loloy claimed that it was the first time that they met, although they became
Gibertas and Berfel dela Cruz. However, she did not know the fifth person. acquaintances after. At any rate this is not the reason why he refused her.
Tagging along were Adriano Seguis and Rosalito Estebe who pulled and He simply had no knowledge of the incident.
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. Seguis must have felt history repeating itself right before his very eyes. On
Out of extreme fear, she did not make any sound. After about one hour, the morning of August 19, 1995, at 6 a.m., he arrived at the residence of
Page 29 of 71
Michael Balantucas. He went there together with his co-accused Rosalito It is to be noted that the accused in this case were originally indicted for
Estebe pursuant to a prior agreement that they would help Michael in the felony of robbery with multiple rape, a special complex crime
harvesting his crop of palay. In the uncanniest of coincidences, Juliet, who punishable under Art. 294, par. 1 of the Revised Penal Code and which is
was already there when he arrived, again was apparently involved in committed "when the robbery shall have been accompanied by rape." The
another case of rape which happened the previous night, and once more said provision, needless to say, covers cases of multiple rapes. 6 This is
asked him to testify for her. This time the request was coupled with a primarily due to the fact that the juridical concept of this crime does not
threat that she would implicate him in the legal action if he refused to limit the consummation of rape against one single victim or to one single
cooperate. For the second time in as many instance, he rejected her plea. act, making other rapes in excess of that number as separate, independent
For scorning her twice, he incurred her fury. She made good her threat and offense or offenses. All the rapes are merged in the composite, integrated
implicated him. 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,
In an unexpected turn of events, the defense called to the witness stand or after the robbery.
Michael Balantucas who previously testified for the prosecution. He was
this time singing a different tune. He claimed that his conscience was Still and all, this does not change the nature of the felony. It is essentially
bothering him, and he could not suffer the burden of seeing two innocent a crime against property. The following are its elements: (1) the taking of
men go to jail. That is why he elected to testify even though he was aware personal property is committed with violence or intimidation against
that he was courting criminal prosecution in changing his testimony. persons; (2) the property taken belongs to another; (3) the taking is done
Michael recanted his former testimony by declaring that in the evening of with animo lucrandi; and, (4) the robbery is accompanied by rape. To
August 18, 1995, he was staying at his house with Juliet and his siblings, sustain a conviction, it is imperative that the robbery itself must be
Rolando and Lilibeth, when at around ten o'clock, five men arrived. These conclusively established; just as the fact that it was the accused who
five were the accused Lolong Doquila, Elmer Canico, Loloy Gibertas, Berfel committed it the proved beyond reasonable doubt. The prosecution must
dela Cruz, and a certain Rolando Ezperanza. They had a talk with Juliet be able to demonstrate the level of their participation with legal and moral
wherein it was agreed that they would "rent"2 her (i.e., have sex with her) certainty, including the existence of a conspiracy, if any. Otherwise, those
that night for a fee of one thousand pesos. While the lady supposedly kept who were charged should be acquitted, at least for the robbery. Proof of
her part of the bargain, the men did not. Instead they even had the the rape alone is not sufficient to support a conviction for the crime of
audacity to take her bracelet and wristwatch when they left at about two robbery with rape.
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 This is exactly the factual conclusion of the trial court, whose findings, to
Estebe arrived the next day, she asked the three of them (including reiterate, "are accorded great weight and respect as trial judges are
Michael) to testify in her behalf, otherwise she would implicate them. As undeniably in the best position to weigh the declaration of witnesses in
far as Michael knows, he was the only one who acceded to the lady's light of their opportunity to observe physically the witnesses' conduct and
demand. attitude during trial."7 Thus said the court:

Rosalito Estebe basically towed the same story line as the two other "x x x However there is no sufficient evidence pointing to the herein two
witnesses. He testified that he knows Juliet as she often comes to accused as the ones who divested the victim of her money and valuables.
Togbongon where he lives. One time, on March 1995, he saw her engage The complainant herself admitted that she did not know who among the
in sexual intercourse with multiple partners in their barrio. He himself did many accused took her gold ring, bracelet and cash. All that she became
not take part in the orgy. Later, she asked him to be her witness as she aware of after her horrible experience was she no longer had the
intended to file rape charges against the persons who had sex with her. He aforementioned items.
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 x x x There is a complete lack of evidence pointing to Adriano Seguis or
against Ricky Antallan, Michael Balantucas, Jeffrey Lerio, Lolong Doquila, Rosalito Estebe as the ones who took the valuables in question. In the
Elmer Canico and Berfel dela Cruz. When he rejected her, she implicated absence of proof of conspiracy among the accused to commit the crime of
him in the present case. robbery, they are liable only for their own separate and individual acts."

In rebuttal, Juliet denied that she agreed to have sex with anyone for But the lower court's finding of their non-participation in the robbery does
P1,000.00. She reiterated her stand that she was abused by all seven men. not mean that they are totally guiltless. They will still be held accountable
Furthermore, it is not true that she merely implicated Seguis and Estebe for whatever unlawful acts they may have committed, and for which acts
after the two declined to be her witnesses. Both also had sex with her. 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
After trial, the lower court pronounced the following sentence: 4 trial court has ruled that the appellants had carnal knowledge of the
private complainant by using force and intimidation. It convicted them
"WHEREFORE, premises considered, the Court finds each of the accused, of one count of rape each because there was no showing that they
Adriano Seguis or Adriano Seguis Jr. and Rosalito Estebe, guilty beyond conspired or assisted each other in committing those rapes.
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 We affirm the conviction.
to suffer the penalty of reclusion perpetua; and to pay one-half of the costs.

This Court has steadfastly adhered to the rule that when a woman testifies
Each of the said accused is ordered to indemnify the victim, Juliet that she has been raped, and if her testimony meets the test of credibility,
Magamayo, in the amount of P50,000.00 for the rape committed by him." 5 the accused may be convicted on the basis thereof. 8 A rape victim who
testifies in a categorical, straightforward, spontaneous and frank manner,
Hence, the present appeal. In their brief, appellants raised the lone and remains consistent, is a credible witness. 9 If her story had only been
assigned error, to wit: contrived, she would not have been so composed and consistent
throughout her entire testimony in the face of intense and lengthy
"THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS interrogation.10> In the case at bar, the victim gave a direct and straight
GUILTY THOUGH NOT OF THE CRIME CHARGED BUT ONLY OF SIMPLE narration of the events which only evinces the truthfulness of her
RAPE WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND testimony. Her story is corroborated on its material points by an impartial
REASONABLE DOUBT." and unbiased witness, Lilibeth Balantucas, who has absolutely no personal
Page 30 of 71
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? 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
A : Outside.
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
Q : Are you referring to the post? 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
A : No, sir, it was came from our kitchen. 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
Q : Kitchen of your house? 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.
A : Yes, sir."17
Second. Appellants ask how come Seguis and Estebe preferred not to rape
Moreover, the defense of alibi is an issue of fact that hinges on credibility, Lilibeth Balantucas herself who was already at their complete control
the relative weight of which the trial court assigns to the testimony of the during the time that complainant was allegedly being gang-raped by the
witnesses. Such assessment, unless patently and clearly inconsistent, must other five accused inside the room? Why did they wait for the five to finish
be accepted, for verily a careful evaluation of the record does not reveal and leave behind in the process a "fresh, sweeter, and younger"22 Lilibeth?
that the trial court's rejection of the defense of alibi is inconsistent with They claim that this is unnatural for people driven by lust and bestial
the evidence on record.18 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
Lastly, it puzzles this court why the appellants, despite their plea of alibi,
conformist to reason and good taste, nor common sense even. When a man
never testified as to their whereabouts the night of August 18, 1995.
is overcome by lustful passions, certainly it would be too much to expect
Neither did they present any witness who can plausibly confirm that they
that he will still concern himself with the age, scent or appearance of his
were indeed in another place at that period. For the defense of alibi to be
prospect.
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 Third. Appellants contend that Juliet's act of telling Adriano Seguis, before
at the place of the crime or its immediate vicinity at the time of its she was raped by the latter, that she could not take it anymore is indicative
commission. The rule is settled that for the defense of alibi to prosper, the of the existence of a prior agreement with the seven accused for a fee of
requirement of time and place must be strictly met. 19 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
Page 32 of 71
insist, but was actually pleading that he no longer rape her as she has G.R. No. 130508 April 5, 2000
suffered enough in the hands of the other accused.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
Fourth. They assert that the subsequent act of Seguis and Estebe in vs.
socializing with the victim and the Balantucas siblings negates any idea of ARMANDO REGALA y ABRIOL, accused-appellant.
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 GONZAGA-REYES, J.:
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 Armando Regala appeals from the judgment in Criminal Case No. 7929
erase his crime. The ambiguous attitude of Seguis is understandable. rendered by the Regional Trial Court of Masbate, Masbate, Branch 46, 5th
While succumbing to his uncontrollable lust, he remained quite Judicial Region, convicting him of the crime of Robbery with Rape.
sympathetic to the plight of Juliet, who was an old acquaintance.
Nevertheless, the apparent regret shown by Seguis after the act of rape The information against accused-appellant on November 27, 1995, filed
could not undo what he had done. It was too late for recriminations. by 2nd Assistant Provincial Prosecutor Jesus C. Castillo, reads as follows:

IV That on or about September 11, 1995, in the evening thereof, at Barangay


Bangon, Municipality of Aroroy, Province of Masbate, Philippines, within
On another point, appellants keep harping on the one hundred eighty- the jurisdiction of this Court, the said accused confederating together and
degree turn around made by Michael on the stand. They say that if the helping one another, with intent to gain, violence and intimidation upon
alleged sexual congresses were true, and witnessed by Michael, it is highly persons, did then and there wilfully, unlawfully and feloniously enter the
unthinkable that, despite the risk of facing criminal prosecution for false kitchen of the house of Consuelo Arevalo and when inside, hogtied said
testimony and perjury, he would still recant his previous testimony in Consuelo Arevalo and granddaughter Nerissa Regala (sic), take, steal, rob
court in favor of the two. They stress that Juliet and Michael are more than and carry away cash amount of P3,000.00 and two (2) gold rings worth
good friends; and, the latter by force of circumstance should not hesitate P6,000.00, to the damage and prejudice of owner Consuelo Arevalo in the
to defend the complainant's position. 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
The Court fails to be impressed with the recantation of Michael Balantucas accused Armando Regala y Abriol has for two times sexually abused
for several reasons. A recantation does not necessarily cancel an earlier and/or intercoursed with her, while hogtied on the bed and in the kitchen.
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 CONTRARY TO LAW. 1
with caution as otherwise it could "make solemn trials a mockery and
place the investigation of truth at the mercy of unscrupulous witnesses." 26 Accused-appellant was apprehended by the police four days after the
incident. He was identified at a police line-up by Nerissa and her
In any event, the eyewitness accounts of Juliet herself and Lilibeth are grandmother.
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 The prosecution presented three witnesses: Dra. Conchita Ulanday,
given credence to the first testimony of Michael, there still is enough Municipal Health Officer of Aroroy, Masbate, who personally examined the
indication to ascertain their culpability. His declaration is merely rape victim; Nerissa Tagala the rape-victim, 17 years old, a third year high
cumulative, or additional evidence of the same kind tending to establish school student; and her grandmother, Consuelo Arevalo, who was her
the same point or factual issue.1âwphi1.nêt companion when the robbery with rape transpired at Consuelo's house.

V The prosecution's version is stated in Appellee's Brief as follows:

Lastly, appellants put private complainant to task for alleged marked On September 11, 1995, at about 9:00 o'clock in the evening at Barangay
contradictions and pure improbabilities surrounding her story. For Bangon, Aroroy, Masbate, then 16-year old victim Nerissa Tagala and her
instance, they assert that it would be highly doubtful for Juliet not to notice grandmother (Consuelo Arevalo) were sleeping, when appellant Armando
who took away her gold ring and gold bracelet, if in the first place there Regala and his two other companions entered the former's house. (pp. 6-
were any. So too are they puzzled with how consistent she is in her 7, TSN, August 26, 1996).
perception of how long each accused raped her. To them this is a sure sign
that her performance on the stand is rehearsed.
Appellant and his companions entered the house through the kitchen by
removing the pieces of wood under the stove. Appellant went to the room
The submission deserves scant attention. Verily, one cannot expect a of Nerissa and her grandmother and poked an 8-inch gun on them, one
victim of such nerve-racking experience to become aware of every minute after the other. (p. 8, TSN, August 26, 1996)
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, Nerissa and her grandmother were hogtied by appellant and his
her ring and bracelet were not that important to her. Regarding the time, companions. Thereafter, Nerissa was raped by appellant Armando Regala
it could well be the only thing that concerned her mind. In any event, these in bed while her grandmother was on the floor. After the rape, appellant
contradictions or improbabilities, as appellants would put it, cannot erode and his two companions counted the money they took from the
the credibility of Juliet's testimony. "aparador." (pp. 9-10, TSN, August 26, 1996)

IN VIEW WHEREOF, the Decision of the Regional Trial Court of Surigao Appellant and his companions then ran away with P3,000 in cash, 2 pieces
City in Criminal Case No. 4581 is AFFIRMED in toto. Costs against of ring valued at P6,000 and two wrist watches worth P5,000. (pp. 11-13,
appellants. TSN, August 26, 1996)

SO ORDERED.
Page 33 of 71
The following day, September 12, 1995, Nerissa went to the Rural Health Nerissa positively recounted the incident on the witness stand. She was
Clinic of Aroroy, Masbate for medical examination. In the Medical Report sleeping with her grandmother in the latter's house when the accused-
presented by Municipal Health Officer Dr. Conchita S. Ulanday, it was appellant Regala, together with the unidentified companions entered the
shown that Nerissa sustained laceration of the hymen at 4:00 o'clock and house. Regala pointed a gun, about 8 inches long, at her grandmother, and
7:00 o'clock positions (fresh wounds), indicating a possible sexual assault then at her, and hogtied both of them. Regala took of her panty and her
upon the victim. (p. 16, TSN, August 26, 1996) 2 shorts, and removed his own "porontong" pants, and made sexual
intercourse ("itot") with her while she was hogtied in bed. Her
The defense presented accused-appellant who testified that on September grandmother was at the floor. She saw the aparador of her grandmother
11, 1995, he was staying in the house of Antonio Ramilo at barangay being opened. She could not shout because the gun was pointed at her, and
Syndicate, Aroroy, Masbate. Ramilo was the manager in the gold panning she was afraid. Two companions of the accused-appellant entered the
business where accused-appellant was employed. Antonio Ramilo room as she was being raped. Two rings valued at about P6,000.00 and 2
testified and corroborated his defense and stated that accused-appellant wrist watches (one "Seiko" and the other "Citizen") and money was taken
was in his house, which is about 5 kilometers away from Barangay by the accused-appellant and his companions. After raping her in bed,
Bangon. 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
The trial court held that the defense of alibi cannot overcome the positive no electricity, and the light in the house was already off, she was able to
identification of the accused. The dispositive portion of the judgment see the face of Regala because at the time Regala was counting the money,
reads: 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
WHEREFORE, in view of all the foregoing, the Court finds accused the face of Regala because of an earring on his left ear 7 which he was
Armando Regala y Abriol guilty beyond reasonable doubt of the crime of wearing when presented at the police line-up. 8
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 Consuelo Arevalo testified and corroborated the testimony of her
perpetua; to indemnify the victim Consuelo Arevalo the sum of P9,000.00, granddaughter. Nerissa Regala entered the house with two companions,
the cash and value of the looted articles; to indemnify the victim Nerissa hogtied her and Nerissa, and were asking for money. After having sexual
Tagala the sum of P50,000.00 as moral damages, and the further sum of intercourse with Nerissa, Regala took P3,000.00 in paper bills and coins
P25,000.00 as exemplary damages. No subsidiary imprisonment in case of from her aparador, and got a stainless Seiko wristwatch and two gold rings
insolvency, and to pay the cost. 3 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
Armando has appealed to this Court pleading that: 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
(1) THE TRIAL COURT GRAVELY ERRED IN FINDING THAT SUFFICIENT her flashlight, and he took off the mask he was wearing; she recognized
EVIDENCE EXIST TO ESTABLISH CLEARLY THE IDENTITY OF THE Regala because of his earring and his flat top hair cut. 10
ACCUSED-APPELLANT AS PERPETRATOR OF THE CRIME CHARGED.

The Court gives its approbation to the finding of the trial court that the
(2) THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED- evidence was sufficient to clearly establish the identity of Armando Regala
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME as the person who, with two companions, committed the crime of robbery
CHARGED. 4 accompanied by rape on the night of September 11, 1995. Nerissa Tagala
positively identified Armando Regala because at the time he was counting
which alleged errors were discussed jointly. 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
In essence, accused-appellant questions the sufficiency of the
entered the house, they removed their masks later. 11
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 Our cases have held that wicklamps, flashlights, even moonlight and
place of the incident which took place at 9:00 o'clock in the evening. starlight may, in proper situations, be sufficient illumination, making the
Consuelo Arevalo was able to identify accused-appellant only after he was attack on the credibility of witnesses solely on this ground
pinpointed by Nerissa, and made contradictory statements in court when unmeritorious. 12
she stated that accused-appellant removed his mask after she was hogtied,
and later stated that accused-appellant removed his mask before she was We are not persuaded by the contention of accused-appellant that the
hogtied. The medico-legal officer, Dr. Ulanday, herself testified that the contradictory replies of Consuelo Arevalo when asked whether Regala
complaining witness either voluntarily submitted to a sexual act or was removed his mask "before" 13 or "after" 14 she and Nerissa were hogtied
forced into one. 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
The appellee insists that appellant's lame defense of alibi cannot stand fact that both Nerissa and Consuelo positively identified Regala as there
against the positive identification made by the victim, and avers that the was a flashlight used to focus at the money while it was being counted and
victim, a 16 year old barrio lass at the time the rape was committed, was there was a reflection on the face of Regala. Both Nerissa and Consuelo
motivated by a sincere desire to seek and obtain justice. The Solicitor remembered the earring on his left ear, which he was still wearing at the
General also recommends an additional award of compensatory damages time of the police line-up inside the police station.
of P50,000.00 in favor of Nerissa Tagala.
Dr. Conchita Ulanday's testimony does not support the contention of
We affirm the judgment of conviction. 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"
There was sufficient evidence to establish the identity of accused-
appellant as the perpetrator of the crime. 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
Page 34 of 71
that Nerissa was hogtied when she was sexually attacked. As correctly WHEREFORE, the judgment convicting Armando Regala y Abriol guilty
pointed out by appellee, Nerissa was a 16-year old barrio lass, not exposed beyond reasonable doubt of the crime of Robbery with Rape, is hereby
to the ways of the world and was not shown to have any ill-motive to AFFIRMED with the MODIFICATION that Nerissa Tagala is entitled to an
falsely implicate accused-appellant, who was a stranger. And as additional award of P50,000.00 as civil indemnity.
repeatedly pronounced by this Court, it simply would be unnatural for a
young and innocent girl to concoct a story of defloration, allow an SO ORDERED.1âwphi1.nêt
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 THEFT

The crime of robbery with rape was committed in 1995 when RA 7659 G.R. No. 155076 February 27, 2006
was already in force. Article 294 of the Revised Penal Code as amended
now provides, under paragraph 1 thereof: LUIS MARCOS P. LAUREL, Petitioner,
vs.
1. The penalty of reclusion perpetua to death, when for any reason of or on HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court,
occasion of the robbery, the crime of homicide shall have been committed, Makati City, Branch 150, PEOPLE OF THE PHILIPPINES& PHILIPPINE
or when the robbery shall have been accompanied by rape or intentional LONG DISTANCE TELEPHONE COMPANY, Respondents.
mutilation or arson.
DECISION
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 CALLEJO, SR., J.:
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 Before us is a Petition for Review on Certiorari of the Decision 1 of the
robbery with rape where all three raped the victim. The Court imposed Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued
the penalty of death after considering two (2) aggravating circumstances, by Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch
namely, nocturnidad and use of a deadly weapon. However, the Court did 150, which denied the "Motion to Quash (With Motion to Defer
not consider the two (2) other rapes as aggravating holding that "(T)he Arraignment)" in Criminal Case No. 99-2425 for theft.
special complex crime of robbery with rape has, therefore, been
committed by the felonious acts of appellant and his cohorts, with all acts Philippine Long Distance Telephone Company (PLDT) is the holder of a
or rape on that occasion being integrated in one composite crime." legislative franchise to render local and international telecommunication
services under Republic Act No. 7082.2 Under said law, PLDT is authorized
There are likewise cases 18 which held that the multiplicity of rapes to establish, operate, manage, lease, maintain and purchase
committed could be appreciated as an aggravating circumstance. In People telecommunication systems, including transmitting, receiving and
vs. Candelario 19 where three (3) of the four (4) armed men who robbed switching stations, for both domestic and international calls. For this
the victim "alternately raped her twice for each of them", this Court, purpose, it has installed an estimated 1.7 million telephone lines
citing People vs. Obtinalia, 20 ruled that "(T)he characterization of the nationwide. PLDT also offers other services as authorized by Certificates
offense as robbery with rape, however, is not changed simply because of Public Convenience and Necessity (CPCN) duly issued by the National
there were several rapes committed. The multiplicity of rapes should Telecommunications Commission (NTC), and operates and maintains an
instead be taken into account raising the penalty to death." 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,
It should be noted that there is no law providing that the additional rape/s the wires and cables linking said telephone handsets and/or
or homicide/s should be considered as aggravating circumstance. The telecommunications equipment, antenna, the IGF, and other
enumeration of aggravating circumstances under Article 14 of the Revised telecommunications equipment which provide
Penal Code is exclusive as opposed to the enumeration in Article 13 of the interconnections.3 1avvphil.net
same code regarding mitigating circumstances where there is a specific
paragraph (paragraph 10) providing for analogous circumstances.
PLDT alleges that one of the alternative calling patterns that constitute
network fraud and violate its network integrity is that which is known as
It is true that the additional rapes (or killings in the case of multiple International Simple Resale (ISR). ISR is a method of routing and
homicide on the occasion of the robbery) would result in an "anomalous completing international long distance calls using International Private
situation" where from the standpoint of the gravity of the offense, robbery Leased Lines (IPL), cables, antenna or air wave or frequency, which
with one rape would be on the same level as robbery with multiple connect directly to the local or domestic exchange facilities of the
rapes. 21 However, the remedy lies with the legislature. A penal law is terminating country (the country where the call is destined). The IPL is
liberally construed in favor of the offender 22 and no person should be linked to switching equipment which is connected to a PLDT telephone
brought within its terms if he is not clearly made so by the statute. 23 line/number. In the process, the calls bypass the IGF found at the
terminating country, or in some instances, even those from the originating
In view of the foregoing, the additional rape committed by herein accused- country.4
appellant should not be considered as aggravating. The penalty
of reclusion perpetua imposed by the trial court is proper. One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells "Bay Super Orient Card" phone cards to people who
As regards the civil indemnity, we find well-taken the recommendation of call their friends and relatives in the Philippines. With said card, one is
the Solicitor General that compensatory damages should be awarded in entitled to a 27-minute call to the Philippines for about ¥37.03 per minute.
the amount of P50,000.00. Nerissa Tagala is entitled to an award of civil After dialing the ISR access number indicated in the phone card, the ISR
indemnity ex delicto of P50,000.00, which is given in favor of the offended operator requests the subscriber to give the PIN number also indicated in
party in rape. 24 Also a conviction for rape carries with it the award of the phone card. Once the caller’s identity (as purchaser of the phone card)
moral damages to the victim since it is recognized that the victim's injury is confirmed, the ISR operator will then provide a Philippine local line to
is concomitant with and necessarily results from the ordinary crime of the requesting caller via the IPL. According to PLDT, calls made through
rape to warrant per se an award of P50,000.00 as moral damages. 25 the IPL never pass the toll center of IGF operators in the Philippines. Using

Page 35 of 71
the local line, the Baynet card user is able to place a call to any point in the theft under Article 308 of the Revised Penal Code. The inculpatory portion
Philippines, provided the local line is National Direct Dial (NDD) capable. 5 of the Amended Information reads:

PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to On or about September 10-19, 1999, or prior thereto, in Makati City, and
course its incoming international long distance calls from Japan. The IPL within the jurisdiction of this Honorable Court, the accused, conspiring
is linked to switching equipment, which is then connected to PLDT and confederating together and all of them mutually helping and aiding
telephone lines/numbers and equipment, with Baynet as subscriber. one another, with intent to gain and without the knowledge and consent
Through the use of the telephone lines and other auxiliary equipment, of the Philippine Long Distance Telephone (PLDT), did then and there
Baynet is able to connect an international long distance call from Japan to willfully, unlawfully and feloniously take, steal and use the international
any part of the Philippines, and make it appear as a call originating from long distance calls belonging to PLDT by conducting International Simple
Metro Manila. Consequently, the operator of an ISR is able to evade Resale (ISR), which is a method of routing and completing international
payment of access, termination or bypass charges and accounting rates, as long distance calls using lines, cables, antennae, and/or air wave
well as compliance with the regulatory requirements of the NTC. Thus, the frequency which connect directly to the local or domestic exchange
ISR operator offers international telecommunication services at a lower facilities of the country where the call is destined, effectively stealing this
rate, to the damage and prejudice of legitimate operators like PLDT. 6 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.
PLDT pointed out that Baynet utilized the following equipment for its ISR
activities: lines, cables, and antennas or equipment or device capable of CONTRARY TO LAW.13
transmitting air waves or frequency, such as an IPL and telephone lines
and equipment; computers or any equipment or device capable of Accused Laurel filed a "Motion to Quash (with Motion to Defer
accepting information applying the prescribed process of the information Arraignment)" on the ground that the factual allegations in the Amended
and supplying the result of this process; modems or any equipment or Information do not constitute the felony of theft under Article 308 of the
device that enables a data terminal equipment such as computers to Revised Penal Code. He averred that the Revised Penal Code, or any other
communicate with other data terminal equipment via a telephone line; special penal law for that matter, does not prohibit ISR operations. He
multiplexers or any equipment or device that enables two or more signals claimed that telephone calls with the use of PLDT telephone lines, whether
from different sources to pass through a common cable or transmission domestic or international, belong to the persons making the call, not to
line; switching equipment, or equipment or device capable of connecting PLDT. He argued that the caller merely uses the facilities of PLDT, and
telephone lines; and software, diskettes, tapes or equipment or device what the latter owns are the telecommunication infrastructures or
used for recording and storing information. 7 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
PLDT also discovered that Baynet subscribed to a total of 123 PLDT outgoing overseas call, PLDT charges the caller per minute, based on the
telephone lines/numbers.8 Based on the Traffic Study conducted on the duration of the call. Thus, no personal property was stolen from PLDT.
volume of calls passing through Baynet’s ISR network which bypass the According to Laurel, the P20,370,651.92 stated in the Information, if
IGF toll center, PLDT incurred an estimated monthly loss of anything, represents the rental for the use of PLDT facilities, and not the
P10,185,325.96.9 Records at the Securities and Exchange Commission value of anything owned by it. Finally, he averred that the allegations in
(SEC) also revealed that Baynet was not authorized to provide the Amended Information are already subsumed under the Information
international or domestic long distance telephone service in the country. for violation of Presidential Decree (P.D.) No. 401 filed and pending in the
The following are its officers: Yuji Hijioka, a Japanese national (chairman Metropolitan Trial Court of Makati City, docketed as Criminal Case No.
of the board of directors); Gina C. Mukaida, a Filipina (board member and 276766.
president); Luis Marcos P. Laurel, a Filipino (board member and corporate
secretary); Ricky Chan Pe, a Filipino (board member and treasurer); and The prosecution, through private complainant PLDT, opposed the
Yasushi Ueshima, also a Japanese national (board member). motion,14 contending that the movant unlawfully took personal property
belonging to it, as follows: 1) intangible telephone services that are being
Upon complaint of PLDT against Baynet for network fraud, and on the offered by PLDT and other telecommunication companies, i.e., the
strength of two search warrants10 issued by the RTC of Makati, Branch connection and interconnection to their telephone lines/facilities; 2) the
147, National Bureau of Investigation (NBI) agents searched its office at use of those facilities over a period of time; and 3) the revenues derived in
the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, connection with the rendition of such services and the use of such
1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and facilities.15
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 The prosecution asserted that the use of PLDT’s intangible telephone
numerous equipment and devices used in its ISR activities, such as services/facilities allows electronic voice signals to pass through the
multiplexers, modems, computer monitors, CPUs, antenna, assorted same, and ultimately to the called party’s number. It averred that such
computer peripheral cords and microprocessors, cables/wires, assorted service/facility is akin to electricity which, although an intangible
PLDT statement of accounts, parabolic antennae and voltage regulators. 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
State Prosecutor Ofelia L. Calo conducted an inquest investigation and PLDT provides to its customers, which enables the latter to send various
issued a Resolution11 on January 28, 2000, finding probable cause for theft messages to installed recipients. The service rendered by PLDT is akin to
under Article 308 of the Revised Penal Code and Presidential Decree No. merchandise which has specific value, and therefore, capable of
40112against the respondents therein, including Laurel. appropriation by another, as in this case, through the ISR operations
conducted by the movant and his co-accused.
On February 8, 2000, State Prosecutor Calo filed an Information with the
RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with The prosecution further alleged that "international business calls and
theft under Article 308 of the Revised Penal Code. After conducting the revenues constitute personal property envisaged in Article 308 of the
requisite preliminary investigation, the State Prosecutor filed an Revised Penal Code." Moreover, the intangible telephone
Amended Information impleading Laurel (a partner in the law firm of services/facilities belong to PLDT and not to the movant and the other
Ingles, Laurel, Salinas, and, until November 19, 1999, a member of the accused, because they have no telephone services and facilities of their
board of directors and corporate secretary of Baynet), and the other own duly authorized by the NTC; thus, the taking by the movant and his
members of the board of directors of said corporation, namely, Yuji co-accused of PLDT services was with intent to gain and without the
Hijioka, Yasushi Ueshima, Mukaida, Lacson and Villegas, as accused for latter’s consent.

Page 36 of 71
The prosecution pointed out that the accused, as well as the movant, were that the "business" in all these cases is the commercial activity, while the
paid in exchange for their illegal appropriation and use of PLDT’s goods and merchandise are the products of such activity. Thus, in
telephone services and facilities; on the other hand, the accused did not prosecutions for theft of certain forms of energy, it is the electricity or gas
pay a single centavo for their illegal ISR operations. Thus, the acts of the which is alleged to be stolen and not the "business" of providing electricity
accused were akin to the use of a "jumper" by a consumer to deflect the or gas. However, since a telephone company does not produce any energy,
current from the house electric meter, thereby enabling one to steal goods or merchandise and merely renders a service or, in the words of
electricity. The prosecution emphasized that its position is fortified by the PLDT, "the connection and interconnection to their telephone
Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S. lines/facilities," such service cannot be the subject of theft as defined in
No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. Article 308 of the Revised Penal Code. 23
2000-370) which were issued on August 14, 2000 finding probable cause
for theft against the respondents therein. He further declared that to categorize "business" as personal property
under Article 308 of the Revised Penal Code would lead to absurd
On September 14, 2001, the RTC issued an Order16 denying the Motion to consequences; in prosecutions for theft of gas, electricity or water, it
Quash the Amended Information. The court declared that, although there would then be permissible to allege in the Information that it is the gas
is no law that expressly prohibits the use of ISR, the facts alleged in the business, the electric business or the water business which has been
Amended Information "will show how the alleged crime was committed stolen, and no longer the merchandise produced by such enterprise. 24
by conducting ISR," to the damage and prejudice of PLDT.
Laurel further cited the Resolution of the Secretary of Justice in Piltel v.
Laurel filed a Motion for Reconsideration17 of the Order, alleging that Mendoza,25 where it was ruled that the Revised Penal Code, legislated as
international long distance calls are not personal property, and are not it was before present technological advances were even conceived, is not
capable of appropriation. He maintained that business or revenue is not adequate to address the novel means of "stealing" airwaves or airtime. In
considered personal property, and that the prosecution failed to adduce said resolution, it was noted that the inadequacy prompted the filing of
proof of its existence and the subsequent loss of personal property Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of
belonging to another. Citing the ruling of the Court in United States v. De 1997" to deter cloning of cellular phones and other forms of
Guzman,18 Laurel averred that the case is not one with telephone calls communications fraud. The said bill "aims to protect in number (ESN) (sic)
which originate with a particular caller and terminates with the called or Capcode, mobile identification number (MIN), electronic-international
party. He insisted that telephone calls are considered privileged mobile equipment identity (EMEI/IMEI), or subscriber identity module"
communications under the Constitution and cannot be considered as "the and "any attempt to duplicate the data on another cellular phone without
property of PLDT." He further argued that there is no kinship between the consent of a public telecommunications entity would be punishable by
telephone calls and electricity or gas, as the latter are forms of energy law."26 Thus, Laurel concluded, "there is no crime if there is no law
which are generated and consumable, and may be considered as personal punishing the crime."
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. On August 30, 2002, the CA rendered judgment dismissing the
petition.27 The appellate court ruled that a petition for certiorari under
In its Order19 dated December 11, 2001, the RTC denied the movant’s Rule 65 of the Rules of Court was not the proper remedy of the petitioner.
Motion for Reconsideration. This time, it ruled that what was stolen from On the merits of the petition, it held that while business is generally an
PLDT was its "business" because, as alleged in the Amended Information, activity
the international long distance calls made through the facilities of PLDT
formed part of its business. The RTC noted that the movant was charged which is abstract and intangible in form, it is nevertheless considered
with stealing the business of PLDT. To support its ruling, it cited "property" under Article 308 of the Revised Penal Code. The CA opined
Strochecker v. Ramirez,20where the Court ruled that interest in business that PLDT’s business of providing international calls is personal property
is personal property capable of appropriation. It further declared that, which may be the object of theft, and cited United States v. Carlos 28 to
through their ISR operations, the movant and his co-accused deprived support such conclusion. The tribunal also cited Strochecker v.
PLDT of fees for international long distance calls, and that the ISR used by Ramirez,29 where this Court ruled that one-half interest in a day’s business
the movant and his co-accused was no different from the "jumper" used is personal property under Section 2 of Act No. 3952, otherwise known as
for stealing electricity. 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 then filed a Petition for Certiorari with the CA, assailing the Order
of the RTC. He alleged that the respondent judge gravely abused his Laurel, now the petitioner, assails the decision of the CA, contending that
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 COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL
the business of PLDT (providing services for international long distance PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE
calls) and the revenues derived therefrom. He opined that a "business" or "INTERNATIONAL LONG DISTANCE CALLS" BUT THE "BUSINESS OF
its revenues cannot be considered as personal property under Article 308 PLDT."
of the Revised Penal Code, since a "business" is "(1) a commercial or
mercantile activity customarily engaged in as a means of livelihood and THE COURT OF APPEALS ERRED IN RULING THAT THE TERM
typically involving some independence of judgment and power of "BUSINESS" IS PERSONAL PROPERTY WITHIN THE MEANING OF ART.
decision; (2) a commercial or industrial enterprise; and (3) refers to 308 OF THE REVISED PENAL CODE.30
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 Petitioner avers that the petition for a writ of certiorari may be filed to
rents, profits, interests, or issues of any species of real or personal nullify an interlocutory order of the trial court which was issued with
property."22 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
Laurel further posited that an electric company’s business is the carry on a business or an interest or participation in business is
production and distribution of electricity; a gas company’s business is the considered property under the New Civil Code, the term "business,"
production and/or distribution of gas (as fuel); while a water company’s however, is not. He asserts that the Philippine Legislature, which
business is the production and distribution of potable water. He argued approved the Revised Penal Code way back in January 1, 1932, could not
Page 37 of 71
have contemplated to include international long distance calls and an unfavorable judgment is rendered, assail the order and the decision on
"business" as personal property under Article 308 thereof. appeal. However, if the trial court issues the order denying the motion to
quash the Amended Information with grave abuse of discretion
In its comment on the petition, the Office of the Solicitor General (OSG) amounting to excess or lack of jurisdiction, or if such order is patently
maintains that the amended information clearly states all the essential erroneous, or null and void for being contrary to the Constitution, and the
elements of the crime of theft. Petitioner’s interpretation as to whether an remedy of appeal would not afford adequate and expeditious relief, the
"international long distance call" is personal property under the law is accused may resort to the extraordinary remedy of certiorari. 35 A special
inconsequential, as a reading of the amended information readily reveals civil action for certiorari is also available where there are special
that specific acts and circumstances were alleged charging Baynet, circumstances clearly demonstrating the inadequacy of an appeal. As this
through its officers, including petitioner, of feloniously taking, stealing and Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria: 36
illegally using international long distance calls belonging to respondent
PLDT by conducting ISR operations, thus, "routing and completing Nonetheless, the settled rule is that a writ of certiorari may be granted in
international long distance calls using lines, cables, antenna and/or cases where, despite availability of appeal after trial, there is at least a
airwave frequency which connect directly to the local or domestic prima facie showing on the face of the petition and its annexes that: (a) the
exchange facilities of the country where the call is destined." The OSG trial court issued the order with grave abuse of discretion amounting to
maintains that the international long distance calls alleged in the amended lack of or in excess of jurisdiction; (b) appeal would not prove to be a
information should be construed to mean "business" of PLDT, which, speedy and adequate remedy; (c) where the order is a patent nullity; (d)
while abstract and intangible in form, is personal property susceptible of the decision in the present case will arrest future litigations; and (e) for
appropriation.31 The OSG avers that what was stolen by petitioner and his certain considerations such as public welfare and public policy. 37
co-accused is the business of PLDT providing international long distance
calls which, though intangible, is personal property of the PLDT. 32 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
For its part, respondent PLDT asserts that personal property under Article of jurisdiction when it denied his motion to quash the Amended
308 of the Revised Penal Code comprehends intangible property such as Information despite his claim that the material allegations in the Amended
electricity and gas which are valuable articles for merchandise, brought Information do not charge theft under Article 308 of the Revised Penal
and sold like other personal property, and are capable of appropriation. It Code, or any offense for that matter. By so doing, the trial court deprived
insists that the business of international calls and revenues constitute him of his constitutional right to be informed of the nature of the charge
personal property because the same are valuable articles of merchandise. against him. He further averred that the order of the trial court is contrary
The respondent reiterates that international calls involve (a) the to the constitution and is, thus, null and void. He insists that he should not
intangible telephone services that are being offered by it, that is, the be compelled to undergo the rigors and tribulations of a protracted trial
connection and interconnection to the telephone network, lines or and incur expenses to defend himself against a non-existent charge.
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 Petitioner is correct.

PLDT further posits that business revenues or the income derived in An information or complaint must state explicitly and directly every act or
connection with the rendition of such services and the use of its telephone omission constituting an offense38 and must allege facts establishing
network, lines or facilities are personal properties under Article 308 of the conduct that a penal statute makes criminal;39 and describes the property
Revised Penal Code; so is the use of said telephone services/telephone which is the subject of theft to advise the accused with reasonable
network, lines or facilities which allow electronic voice signals to pass certainty of the accusation he is called upon to meet at the trial and to
through the same and ultimately to the called party’s number. It is akin to enable him to rely on the judgment thereunder of a subsequent
electricity which, though intangible property, may nevertheless be prosecution for the same offense.40 It must show, on its face, that if the
appropriated and can be the object of theft. The use of respondent PLDT’s alleged facts are true, an offense has been committed. The rule is rooted
telephone network, lines, or facilities over a period of time for on the constitutional right of the accused to be informed of the nature of
consideration is the business that it provides to its customers, which the crime or cause of the accusation against him. He cannot be convicted
enables the latter to send various messages to intended recipients. Such of an offense even if proven unless it is alleged or necessarily included in
use over a period of time is akin to merchandise which has value and, the Information filed against him.
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 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
The petition is meritorious. 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
The issues for resolution are as follows: (a) whether or not the petition for Information do not constitute an offense, the complaint or information
certiorari is the proper remedy of the petitioner in the Court of Appeals; should be quashed by the court.43
(b) whether or not international telephone calls using Bay Super Orient
Cards through the telecommunication services provided by PLDT for such We have reviewed the Amended Information and find that, as mentioned
calls, or, in short, PLDT’s business of providing said telecommunication by the petitioner, it does not contain material allegations charging the
services, are proper subjects of theft under Article 308 of the Revised petitioner of theft of personal property under Article 308 of the Revised
Penal Code; and (c) whether or not the trial court committed grave abuse Penal Code. It, thus, behooved the trial court to quash the Amended
of discretion amounting to excess or lack of jurisdiction in denying the Information. The Order of the trial court denying the motion of the
motion of the petitioner to quash the amended information. petitioner to quash the Amended Information is a patent nullity.

On the issue of whether or not the petition for certiorari instituted by the On the second issue, we find and so hold that the international telephone
petitioner in the CA is proper, the general rule is that a petition for calls placed by Bay Super Orient Card holders, the telecommunication
certiorari under Rule 65 of the Rules of Court, as amended, to nullify an services provided by PLDT and its business of providing said services are
order denying a motion to quash the Information is inappropriate because not personal properties under Article 308 of the Revised Penal Code. The
the aggrieved party has a remedy of appeal in the ordinary course of law. construction by the respondents of Article 308 of the said Code to include,
Appeal and certiorari are mutually exclusive of each other. The remedy of within its coverage, the aforesaid international telephone calls,
the aggrieved party is to continue with the case in due course and, when

Page 38 of 71
telecommunication services and business is contrary to the letter and material existence and susceptible of occupation by another are proper
intent of the law. objects of theft.52 As explained by Cuelo Callon: "Cosa juridicamente es
toda sustancia corporal, material, susceptible de ser aprehendida que
The rule is that, penal laws are to be construed strictly. Such rule is tenga un valor cualquiera."53
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 According to Cuello Callon, in the context of the Penal Code, only those
in the judicial department. It is Congress, not the Court, which is to define movable properties which can be taken and carried from the place they
a crime, and ordain its punishment.44 Due respect for the prerogative of are found are proper subjects of theft. Intangible properties such as rights
Congress in defining crimes/felonies constrains the Court to refrain from and ideas are not subject of theft because the same cannot be "taken" from
a broad interpretation of penal laws where a "narrow interpretation" is the place it is found and is occupied or appropriated.
appropriate. The Court must take heed to language, legislative history and
purpose, in order to strictly determine the wrath and breath of the Solamente las cosas muebles y corporales pueden ser objeto de hurto. La
conduct the law forbids.45 However, when the congressional purpose is sustracción de cosas inmuebles y la cosas incorporales (v. gr., los
unclear, the court must apply the rule of lenity, that is, ambiguity derechos, las ideas) no puede integrar este delito, pues no es posible
concerning the ambit of criminal statutes should be resolved in favor of asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la
lenity.46 expresión "cosas mueble" en el sentido de cosa que es susceptible de ser
llevada del lugar donde se encuentra, como dinero, joyas, ropas, etcétera,
Penal statutes may not be enlarged by implication or intent beyond the asi que su concepto no coincide por completo con el formulado por el
fair meaning of the language used; and may not be held to include offenses Codigo civil (arts. 335 y 336).54
other than those which are clearly described, notwithstanding that the
Court may think that Congress should have made them more Thus, movable properties under Article 308 of the Revised Penal Code
comprehensive.47 Words and phrases in a statute are to be construed should be distinguished from the rights or interests to which they relate.
according to their common meaning and accepted usage. 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
As Chief Justice John Marshall declared, "it would be dangerous, indeed, to of theft or larceny.55 Such rights or interests are intangible and cannot be
carry the principle that a case which is within the reason or "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
mischief of a statute is within its provision, so far as to punish a crime not properties. So is the credit line represented by a credit card. However,
enumerated in the statute because it is of equal atrocity, or of kindred they are not proper subjects of theft or larceny because they are without
character with those which are enumerated.48 When interpreting a form or substance, the mere "breath" of the Congress. On the other hand,
criminal statute that does not explicitly reach the conduct in question, the goods, wares and merchandise of businessmen and credit cards issued to
Court should not base an expansive reading on inferences from subjective them are movable properties with physical and material existence and
and variable understanding.49 may be taken by another; hence, proper subjects of theft.

Article 308 of the Revised Penal Code defines theft as follows: 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
Art. 308. Who are liable for theft.– Theft is committed by any person who, the thief. The taker, at some particular amount, must have obtained
with intent to gain but without violence, against or intimidation of persons complete and absolute possession and control of the property adverse to
nor force upon things, shall take personal property of another without the the rights of the owner or the lawful possessor thereof. 56 It is not
latter’s consent. 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
The provision was taken from Article 530 of the Spanish Penal Code which with it.57 Neither asportation nor actual manual possession of property is
reads: required. Constructive possession of the thief of the property is enough. 58

1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las The essence of the element is the taking of a thing out of the possession of
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la the owner without his privity and consent and without animus
voluntad de su dueño.50 revertendi.59

For one to be guilty of theft, the accused must have an intent to steal Taking may be by the offender’s own hands, by his use of innocent persons
(animus furandi) personal property, meaning the intent to deprive without any felonious intent, as well as any mechanical device, such as an
another of his ownership/lawful possession of personal property which access device or card, or any agency, animate or inanimate, with intent to
intent is apart from and concurrently with the general criminal intent gain. Intent to gain includes the unlawful taking of personal property for
which is an essential element of a felony of dolo (dolus malus). the purpose of deriving utility, satisfaction, enjoyment and pleasure.60

An information or complaint for simple theft must allege the following We agree with the contention of the respondents that intangible
elements: (a) the taking of personal property; (b) the said property properties such as electrical energy and gas are proper subjects of theft.
belongs to another; (c) the taking be done with intent to gain; and (d) the The reason for this is that, as explained by this Court in United States v.
taking be accomplished without the use of violence or intimidation of Carlos61 and United States v. Tambunting,62 based on decisions of the
person/s or force upon things.51 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
One is apt to conclude that "personal property" standing alone, covers away and appropriated. In People v. Menagas,63 the Illinois State Supreme
both tangible and intangible properties and are subject of theft under the Court declared that electricity, like gas, may be seen and felt. Electricity,
Revised Penal Code. But the words "Personal property" under the Revised the same as gas, is a valuable article of merchandise, bought and sold like
Penal Code must be considered in tandem with the word "take" in the law. other personal property and is capable of appropriation by another. It is a
The statutory definition of "taking" and movable property indicates that, valuable article of merchandise, bought and sold like other personal
clearly, not all personal properties may be the proper subjects of theft. The property, susceptible of being severed from a mass or larger quantity and
general rule is that, only movable properties which have physical or of being transported from place to place. Electrical energy may, likewise,
Page 39 of 71
be taken and carried away. It is a valuable commodity, bought and sold even the petitioner, for that matter. PLDT merely transmits the electronic
like other personal property. It may be transported from place to place. voice signals through its facilities and equipment. Baynet Card Ltd.,
There is nothing in the nature of gas used for illuminating purposes which through its operator, merely intercepts, reroutes the calls and passes them
renders it incapable of being feloniously taken and carried away. to its toll center. Indeed, the parties called receive the telephone calls from
Japan.
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 In this modern age of technology, telecommunications systems have
determinate quantities at a fixed price, precisely as are coal, kerosene oil, become so tightly merged with computer systems that it is difficult to
and gas. It may be conveyed to the premises of the consumer, stored in know where one starts and the other finishes. The telephone set is highly
cells of different capacity known as an accumulator; or it may be sent computerized and allows computers to communicate across long
through a wire, just as gas or oil may be transported either in a close tank distances.71 The instrumentality at issue in this case is not merely a
or forced through a pipe. Having reached the premises of the consumer, it telephone but a telephone inexplicably linked to a computerized
may be used in any way he may desire, being, like illuminating gas, capable communications system with the use of Baynet Cards sold by the Baynet
of being transformed either into heat, light, or power, at the option of the Card Ltd. The corporation uses computers, modems and software, among
purchaser. In Woods v. People,65 the Supreme Court of Illinois declared others, for its ISR.72
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 The conduct complained of by respondent PLDT is reminiscent of
is a valuable article of merchandise, bought and sold like other personal "phreaking" (a slang term for the action of making a telephone system to
property, susceptible of being severed from a mass or larger quantity and do something that it normally should not allow by "making the phone
of being transported from place to place. company bend over and grab its ankles"). A "phreaker" is one who engages
in the act of manipulating phones and illegally markets telephone
Gas and electrical energy should not be equated with business or services services.73 Unless the phone company replaces all its hardware, phreaking
provided by business entrepreneurs to the public. Business does not have would be impossible to stop. The phone companies in North America were
an exact definition. Business is referred as that which occupies the time, impelled to replace all their hardware and adopted full digital switching
attention and labor of men for the purpose of livelihood or profit. It system known as the Common Channel Inter Office Signaling. Phreaking
embraces everything that which a person can be employed.66 Business occurred only during the 1960’s and 1970’s, decades after the Revised
may also mean employment, occupation or profession. Business is also Penal Code took effect.
defined as a commercial activity for gain benefit or advantage.67 Business,
like services in business, although are properties, are not proper subjects The petitioner is not charged, under the Amended Information, for theft of
of theft under the Revised Penal Code because the same cannot be "taken" telecommunication or telephone services offered by PLDT. Even if he is,
or "occupied." If it were otherwise, as claimed by the respondents, there the term "personal property" under Article 308 of the Revised Penal Code
would be no juridical difference between the taking of the business of a cannot be interpreted beyond its seams so as to include
person or the services provided by him for gain, vis-à-vis, the taking of "telecommunication or telephone services" or computer services for that
goods, wares or merchandise, or equipment comprising his business.68 If matter. The word "service" has a variety of meanings dependent upon the
it was its intention to include "business" as personal property under context, or the sense in which it is used; and, in some instances, it may
Article 308 of the Revised Penal Code, the Philippine Legislature should include a sale. For instance, the sale of food by restaurants is usually
have spoken in language that is clear and definite: that business is referred to as "service," although an actual sale is involved.74 It may also
personal property under Article 308 of the Revised Penal Code. 69 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
We agree with the contention of the petitioner that, as gleaned from the to render local and international telecommunications services and such
material averments of the Amended Information, he is charged of "stealing other services as authorized by the CPCA issued by the NTC. Even at
the international long distance calls belonging to PLDT" and the use common law, neither time nor services may be taken and occupied or
thereof, through the ISR. Contrary to the claims of the OSG and respondent appropriated.76 A service is generally not considered property and a theft
PLDT, the petitioner is not charged of stealing P20,370,651.95 from said of service would not, therefore, constitute theft since there can be no
respondent. Said amount of P20,370,651.95 alleged in the Amended caption or asportation.77 Neither is the unauthorized use of the equipment
Information is the aggregate amount of access, transmission or and facilities of PLDT by the petitioner theft under the aforequoted
termination charges which the PLDT expected from the international long provision of the Revised Penal Code.78
distance calls of the callers with the use of Baynet Super Orient Cards sold
by Baynet Co. Ltd. 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
In defining theft, under Article 308 of the Revised Penal Code, as the taking Article 308 of the Revised Penal Code. The Legislature did not. In fact, the
of personal property without the consent of the owner thereof, the Revised Penal Code does not even contain a definition of services.
Philippine legislature could not have contemplated the human voice
which is converted into electronic impulses or electrical current which are If taking of telecommunication services or the business of a person, is to
transmitted to the party called through the PSTN of respondent PLDT and be proscribed, it must be by special statute79 or an amendment of the
the ISR of Baynet Card Ltd. within its coverage. When the Revised Penal Revised Penal Code. Several states in the United States, such as New York,
Code was approved, on December 8, 1930, international telephone calls New Jersey, California and Virginia, realized that their criminal statutes
and the transmission and routing of electronic voice signals or impulses did not contain any provisions penalizing the theft of services and passed
emanating from said calls, through the PSTN, IPL and ISR, were still non- laws defining and penalizing theft of telephone and computer services.
existent. Case law is that, where a legislative history fails to evidence The Pennsylvania Criminal Statute now penalizes theft of services, thus:
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 (a) Acquisition of services. --
cannot be extended beyond the fair scope of the statutory mandate. 70
(1) A person is guilty of theft if he intentionally obtains services for himself
Respondent PLDT does not acquire possession, much less, ownership of or for another which he knows are available only for compensation, by
the voices of the telephone callers or of the electronic voice signals or deception or threat, by altering or tampering with the public utility meter
current emanating from said calls. The human voice and the electronic or measuring device by which such services are delivered or by causing or
voice signals or current caused thereby are intangible and not susceptible permitting such altering or tampering, by making or maintaining any
of possession, occupation or appropriation by the respondent PLDT or unauthorized connection, whether physically, electrically or inductively,
Page 40 of 71
to a distribution or transmission line, by attaching or maintaining the intent to defraud or intent to gain and fleeing thereafter; and of effecting
attachment of any unauthorized device to any cable, wire or other transactions with one or more access devices issued to another person or
component of an electric, telephone or cable television system or to a persons to receive payment or any other thing of value. Under Section 11
television receiving set connected to a cable television system, by making of the law, conspiracy to commit access devices fraud is a crime. However,
or maintaining any unauthorized modification or alteration to any device the petitioner is not charged of violation of R.A. 8484.
installed by a cable television system, or by false token or other trick or
artifice to avoid payment for the service. Significantly, a prosecution under the law shall be without prejudice to
any liability for violation of any provisions of the Revised Penal Code
In the State of Illinois in the United States of America, theft of labor or inclusive of theft under Rule 308 of the Revised Penal Code and estafa
services or use of property is penalized: 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
(a) A person commits theft when he obtains the temporary use of following: theft of the credit card under Article 308 of the Revised Penal
property, labor or services of another which are available only for hire, by Code; violation of Republic Act No. 8484; and estafa under Article
means of threat or deception or knowing that such use is without the 315(2)(a) of the Revised Penal Code with the service provider as the
consent of the person providing the property, labor or services. private complainant. The petitioner is not charged of estafa before the RTC
in the Amended Information.

In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000
professional services, have not been included within the traditional scope provides:
of the term "property" in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft Sec. 33. Penalties.— The following Acts shall be penalized by fine and/or
of services, thus: imprisonment, as follows:

(1) A person is guilty of theft if he purposely obtains services which he a) Hacking or cracking which refers to unauthorized access into or
knows are available only for compensation, by deception or threat, or by interference in a computer system/server or information and
false token or other means to avoid payment for the service. "Services" communication system; or any access in order to corrupt, alter, steal, or
include labor, professional service, transportation, telephone or other destroy using a computer or other similar information and
public service, accommodation in hotels, restaurants or elsewhere, communication devices, without the knowledge and consent of the owner
admission to exhibitions, use of vehicles or other movable property. of the computer or information and communications system, including the
Where compensation for service is ordinarily paid immediately upon the introduction of computer viruses and the like, resulting on the corruption,
rendering of such service, as in the case of hotels and restaurants, refusal destruction, alteration, theft or loss of electronic data messages or
to pay or absconding without payment or offer to pay gives rise to a electronic documents shall be punished by a minimum fine of One
presumption that the service was obtained by deception as to intention to hundred thousand pesos (P100,000.00) and a maximum commensurate
pay; (2) A person commits theft if, having control over the disposition of to the damage incurred and a mandatory imprisonment of six (6) months
services of others, to which he is not entitled, he knowingly diverts such to three (3) years.
services to his own benefit or to the benefit of another not entitled thereto.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
Interestingly, after the State Supreme Court of Virginia promulgated its Orders of the Regional Trial Court and the Decision of the Court of Appeals
decision in Lund v. Commonwealth,80declaring that neither time nor are REVERSED and SET ASIDE. The Regional Trial Court is directed to
services may be taken and carried away and are not proper subjects of issue an order granting the motion of the petitioner to quash the Amended
larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which Information.
reads:
SO ORDERED.
Computer time or services or data processing services or information or
data stored in connection therewith is hereby defined to be property G. R. No. 160188 June 21, 2007
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.
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
Alabama of 1975 penalizes theft of services: NACHURA, respondents.

"A person commits the crime of theft of services if: (a) He intentionally DECISION
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 …" TINGA, J.:

In the Philippines, Congress has not amended the Revised Penal Code to This case aims for prime space in the firmament of our criminal law
include theft of services or theft of business as felonies. Instead, it jurisprudence. Petitioner effectively concedes having performed the
approved a law, Republic Act No. 8484, otherwise known as the Access felonious acts imputed against him, but instead insists that as a result, he
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an should be adjudged guilty of frustrated theft only, not the felony in its
access device means any card, plate, code, account number, electronic consummated stage of which he was convicted. The proposition rests on
serial number, personal identification number and other a common theory expounded in two well-known decisions1 rendered
telecommunication services, equipment or instrumentalities-identifier or decades ago by the Court of Appeals, upholding the existence of frustrated
other means of account access that can be used to obtain money, goods, theft of which the accused in both cases were found guilty. However, the
services or any other thing of value or to initiate a transfer of funds other rationale behind the rulings has never been affirmed by this Court.
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
As far as can be told,2 the last time this Court extensively considered brought to the security office. Petitioner claimed he was detained at the
whether an accused was guilty of frustrated or consummated theft was in security office until around 9:00 p.m., at which time he and the others
1918, in People v. Adiao.3 A more cursory were brought to the Baler Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was detained overnight, and
treatment of the question was followed in 1929, in People v. eventually brought to the prosecutor’s office where he was charged with
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives theft.14 During petitioner’s cross-examination, he admitted that he had
occasion for us to finally and fully measure if or how frustrated theft is been employed as a "bundler" of GMS Marketing, "assigned at the
susceptible to commission under the Revised Penal Code. supermarket" though not at SM.15

I. 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
The basic facts are no longer disputed before us. The case stems from an indeterminate prison term of two (2) years of prision correccional as
Information6 charging petitioner Aristotel Valenzuela (petitioner) and minimum to seven (7) years of prision mayor as maximum. 17 The RTC
Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at found credible the testimonies of the prosecution witnesses and
around 4:30 p.m., petitioner and Calderon were sighted outside the Super established the convictions on the positive identification of the accused as
Sale Club, a supermarket within the ShoeMart (SM) complex along North perpetrators of the crime.
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 Both accused filed their respective Notices of Appeal,18 but only petitioner
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the filed a brief19 with the Court of Appeals, causing the appellate court to
well-known "Tide" brand. Petitioner unloaded these cases in an open deem Calderon’s appeal as abandoned and consequently dismissed.
parking space, where Calderon was waiting. Petitioner then returned Before the Court of Appeals, petitioner argued that he should only be
inside the supermarket, and after five (5) minutes, emerged with more convicted of frustrated theft since at the time he was apprehended, he was
cartons of Tide Ultramatic and again unloaded these boxes to the same never placed in a position to freely dispose of the articles
area in the open parking space.7 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
Thereafter, petitioner left the parking area and haled a taxi. He boarded seeks that petitioner’s conviction "be modified to only of Frustrated
the cab and directed it towards the parking space where Calderon was Theft."24
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 Even in his appeal before the Court of Appeals, petitioner effectively
petitioner for a receipt of the merchandise, petitioner and Calderon conceded both his felonious intent and his actual participation in the theft
reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow of several cases of detergent with a total value of ₱12,090.00 of which he
security guards of the incident. Petitioner and Calderon were was charged.25 As such, there is no cause for the Court to consider a factual
apprehended at the scene, and the stolen merchandise recovered. 8 The scenario other than that presented by the prosecution, as affirmed by the
filched items seized from the duo were four (4) cases of Tide Ultramatic, RTC and the Court of Appeals. The only question to consider is whether
one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, under the given facts, the theft should be deemed as consummated or
the goods with an aggregate value of ₱12,090.00. 9 merely frustrated.

Petitioner and Calderon were first brought to the SM security office before II.
they were transferred on the same day to the Baler Station II of the
Philippine National Police, Quezon City, for investigation. It appears from In arguing that he should only be convicted of frustrated theft, petitioner
the police investigation records that apart from petitioner and Calderon, cites26 two decisions rendered many years ago by the Court of Appeals:
four (4) other persons were apprehended by the security guards at the People v. Diño27 and People v. Flores.28 Both decisions elicit the interest of
scene and delivered to police custody at the Baler PNP Station in this Court, as they modified trial court convictions from consummated to
connection with the incident. However, after the matter was referred to frustrated theft and involve a factual milieu that bears similarity to the
the Office of the Quezon City Prosecutor, only petitioner and Calderon present case. Petitioner invoked the same rulings in his appeal to the Court
were charged with theft by the Assistant City Prosecutor, in Informations of Appeals, yet the appellate court did not expressly consider the import
prepared on 20 May 1994, the day after the incident. 10 of the rulings when it affirmed the conviction.

After pleading not guilty on arraignment, at the trial, petitioner and It is not necessary to fault the Court of Appeals for giving short shrift to
Calderon both claimed having been innocent bystanders within the the Diño and Flores rulings since they have not yet been expressly adopted
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they as precedents by this Court. For whatever reasons,
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 the occasion to define or debunk the crime of frustrated theft has not come
of the incident, he was at the Super Sale Club to withdraw from his ATM to pass before us. Yet despite the silence on our part, Diño and Flores have
account, accompanied by his neighbor, Leoncio Rosulada. 11 As the queue attained a level of renown reached by very few other appellate court
for the ATM was long, Calderon and Rosulada decided to buy snacks inside rulings. They are comprehensively discussed in the most popular of our
the supermarket. It was while they were eating that they heard the criminal law annotations,29 and studied in criminal law classes as textbook
gunshot fired by Lago, leading them to head out of the building to check examples of frustrated crimes or even as definitive of frustrated theft.
what was

More critically, the factual milieu in those cases is hardly akin to the
transpiring. As they were outside, they were suddenly "grabbed" by a fanciful scenarios that populate criminal law exams more than they
security guard, thus commencing their detention.12 Meanwhile, petitioner actually occur in real life. Indeed, if we finally say that Diño and Flores are
testified during trial that he and his cousin, a Gregorio Valenzuela,13 had doctrinal, such conclusion could profoundly influence a multitude of
been at the parking lot, walking beside the nearby BLISS complex and routine theft prosecutions, including commonplace shoplifting. Any
headed to ride a tricycle going to Pag-asa, when they saw the security scenario that involves the thief having to exit with the stolen property
guard Lago fire a shot. The gunshot caused him and the other people at the through a supervised egress, such as a supermarket checkout counter or
scene to start running, at which point he was apprehended by Lago and a parking area pay booth, may easily call for the application of Diño and
Page 42 of 71
Flores. The fact that lower courts have not hesitated to lay down crime. For a crime to exist in our legal law, it is not enough that mens rea
convictions for frustrated theft further validates that Diño and Flores and be shown; there must also be an actus reus.40
the theories offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to examine It is from the actus reus and the mens rea, as they find expression in the
whether those theories are correct and should continue to influence criminal statute, that the felony is produced. As a postulate in the
prosecutors and judges in the future. craftsmanship of constitutionally sound laws, it is extremely preferable
that the language of the law expressly provide when the felony is
III. produced. Without such provision, disputes would inevitably ensue on the
elemental question whether or not a crime was committed, thereby
To delve into any extended analysis of Diño and Flores, as well as the presaging the undesirable and legally dubious set-up under which the
specific issues relative to "frustrated theft," it is necessary to first refer to judiciary is assigned the legislative role of defining crimes. Fortunately,
the basic rules on the three stages of crimes under our Revised Penal our Revised Penal Code does not suffer from such infirmity. From the
Code.30 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
Article 6 defines those three stages, namely the consummated, frustrated the phrase "shall kill another," thus making it clear that the felony is
and attempted felonies. A felony is consummated "when all the elements produced by the death of the victim, and conversely, it is not produced if
necessary for its execution and accomplishment are present." It is the victim survives.
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 We next turn to the statutory definition of theft. Under Article 308 of the
perpetrator." Finally, it is attempted "when the offender commences the Revised Penal Code, its elements are spelled out as follows:
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 Art. 308. Who are liable for theft.— Theft is committed by any person who,
or accident other than his own spontaneous desistance." with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without the
Each felony under the Revised Penal Code has a "subjective phase," or that latter’s consent.
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 Theft is likewise committed by:
offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and 1. Any person who, having found lost property, shall fail to deliver the
the objective phase begins.32 It has been held that if the offender never same to the local authorities or to its owner;
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 2. Any person who, after having maliciously damaged the property of
is complete."34 another, shall remove or make use of the fruits or object of the damage
caused by him; and
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as the 3. Any person who shall enter an inclosed estate or a field where trespass
offender fails to complete all the acts of execution despite commencing the is forbidden or which belongs to another and without the consent of its
commission of a felony, the crime is undoubtedly in the attempted stage. owner, shall hunt or fish upon the same or shall gather cereals, or other
Since the specific acts of execution that define each crime under the forest or farm products.
Revised Penal Code are generally enumerated in the code itself, the task
of ascertaining whether a crime is attempted only would need to compare Article 308 provides for a general definition of theft, and three alternative
the acts actually performed by the accused as against the acts that and highly idiosyncratic means by which theft may be committed. 41 In the
constitute the felony under the Revised Penal Code. present discussion, we need to concern ourselves only with the general
definition since it was under it that the prosecution of the accused was
In contrast, the determination of whether a crime is frustrated or undertaken and sustained. On the face of the definition, there is only one
consummated necessitates an initial concession that all of the acts of operative act of execution by the actor involved in theft ─ the taking of
execution have been performed by the offender. The critical distinction personal property of another. It is also clear from the provision that in
instead is whether the felony itself was actually produced by the acts of order that such taking may be qualified as theft, there must further be
execution. The determination of whether the felony was "produced" after present the descriptive circumstances that the taking was with intent to
all the acts of execution had been performed hinges on the particular gain; without force upon things or violence against or intimidation of
statutory definition of the felony. It is the statutory definition that persons; and it was without the consent of the owner of the property.
generally furnishes the elements of each crime under the Revised Penal
Code, while the elements in turn unravel the particular requisite acts of Indeed, we have long recognized the following elements of theft as
execution and accompanying criminal intent. 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
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" another; (3) that the taking be done with intent to gain; (4) that the taking
supplies an important characteristic of a crime, that "ordinarily, evil intent be done without the consent of the owner; and (5) that the taking be
must unite with an unlawful act for there to be a crime," and accordingly, accomplished without the use of violence against or intimidation of
there can be no crime when the criminal mind is wanting. 35 Accepted in persons or force upon things.42
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 In his commentaries, Judge Guevarra traces the history of the definition of
intent,"37 and "essential for criminal liability."38 It follows that the theft, which under early Roman law as defined by Gaius, was so broad
statutory definition of our mala in se crimes must be able to supply what enough as to encompass "any kind of physical handling of property
the mens rea of the crime is, and indeed the U.S. Supreme Court has belonging to another against the will of the owner," 43 a definition similar
comfortably held that "a criminal law that contains no mens rea to that by Paulus that a thief "handles (touches, moves) the property of
requirement infringes on constitutionally protected rights."39 The another."44 However, with the Institutes of Justinian, the idea had taken
criminal statute must also provide for the overt acts that constitute the hold that more than mere physical handling, there must further be an
Page 43 of 71
intent of acquiring gain from the object, thus: "[f]urtum est contrectatio The defendant was charged with the theft of some fruit from the land of
rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus another. As he was in the act of taking the fruit[,] he was seen by a
possessinisve."45 This requirement of animo lucrandi, or intent to gain, policeman, yet it did not appear that he was at that moment caught by the
was maintained in both the Spanish and Filipino penal laws, even as it has policeman but sometime later. The court said: "[x x x] The trial court did
since been abandoned in Great Britain. 46 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
In Spanish law, animo lucrandi was compounded with apoderamiento, or showing that the policemen who saw the accused take the fruit from the
"unlawful taking," to characterize theft. Justice Regalado notes that the adjoining land arrested him in the act and thus prevented him from taking
concept of apoderamiento once had a controversial interpretation and full possession of the thing stolen and even its utilization by him for an
application. Spanish law had already discounted the belief that mere interval of time." (Decision of the Supreme Court of Spain, October 14,
physical taking was constitutive of apoderamiento, finding that it had to 1898.)
be coupled with "the intent to appropriate the object in order to constitute
apoderamiento; and to appropriate means to deprive the lawful owner of Defendant picked the pocket of the offended party while the latter was
the thing."47 However, a conflicting line of cases decided by the Court of hearing mass in a church. The latter on account of the solemnity of the act,
Appeals ruled, alternatively, that there must be permanency in the although noticing the theft, did not do anything to prevent it.
taking48 or an intent to permanently deprive the owner of the stolen Subsequently, however, while the defendant was still inside the church,
property;49 or that there was no need for permanency in the taking or in the offended party got back the money from the defendant. The court said
its intent, as the mere temporary possession by the offender or that the defendant had performed all the acts of execution and considered
disturbance of the proprietary rights of the owner already constituted the theft as consummated. (Decision of the Supreme Court of Spain,
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted December 1, 1897.)
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 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
So long as the "descriptive" circumstances that qualify the taking are opened with a key, from which in turn he took a purse containing 461
present, including animo lucrandi and apoderamiento, the completion of reales and 20 centimos, and then he placed the money over the cover of
the operative act that is the taking of personal property of another the case; just at this moment he was caught by two guards who were
establishes, at least, that the transgression went beyond the attempted stationed in another room near-by. The court considered this as
stage. As applied to the present case, the moment petitioner obtained consummated robbery, and said: "[x x x] The accused [x x x] having
physical possession of the cases of detergent and loaded them in the materially taken possession of the money from the moment he took it from
pushcart, such seizure motivated by intent to gain, completed without the place where it had been, and having taken it with his hands with intent
need to inflict violence or intimidation against persons nor force upon to appropriate the same, he executed all the acts necessary to constitute
things, and accomplished without the consent of the SM Super Sales Club, the crime which was thereby produced; only the act of making use of the
petitioner forfeited the extenuating benefit a conviction for only thing having been frustrated, which, however, does not go to make the
attempted theft would have afforded him. elements of the consummated crime." (Decision of the Supreme Court of
Spain, June 13, 1882.)56
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 It is clear from the facts of Adiao itself, and the three (3) Spanish decisions
ascertain the answer. Following that provision, the theft would have been cited therein, that the criminal actors in all these cases had been able to
frustrated only, once the acts committed by petitioner, if ordinarily obtain full possession of the personal property prior to their
sufficient to produce theft as a consequence, "do not produce [such theft] apprehension. The interval between the commission of the acts of theft
by reason of causes independent of the will of the perpetrator." There are and the apprehension of the thieves did vary, from "sometime later" in the
clearly two determinative factors to consider: that the felony is not 1898 decision; to the very moment the thief had just extracted the money
"produced," and that such failure is due to causes independent of the will in a purse which had been stored as it was in the 1882 decision; and before
of the perpetrator. The second factor ultimately depends on the evidence the thief had been able to spirit the item stolen from the building where
at hand in each particular case. The first, however, relies primarily on a the theft took place, as had happened in Adiao and the 1897 decision. Still,
doctrinal definition attaching to the individual felonies in the Revised such intervals proved of no consequence in those cases, as it was ruled
Penal Code52 as to when a particular felony is "not produced," despite the that the thefts in each of those cases was consummated by the actual
commission of all the acts of execution. possession of the property belonging to another.

So, in order to ascertain whether the theft is consummated or frustrated, In 1929, the Court was again confronted by a claim that an accused was
it is necessary to inquire as to how exactly is the felony of theft "produced." guilty only of frustrated rather than consummated theft. The case is
Parsing through the statutory definition of theft under Article 308, there People v. Sobrevilla,57 where the accused, while in the midst of a crowd in
is one apparent answer provided in the language of the law — that theft is a public market, was already able to abstract a pocketbook from the
already "produced" upon the "tak[ing of] personal property of another trousers of the victim when the latter, perceiving the theft, "caught hold of
without the latter’s consent." 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
U.S. v. Adiao53 apparently supports that notion. Therein, a customs was afterwards caught by a policeman."58 In rejecting the contention that
inspector was charged with theft after he abstracted a leather belt from only frustrated theft was established, the Court simply said, without
the baggage of a foreign national and secreted the item in his desk at the further comment or elaboration:
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 We believe that such a contention is groundless. The [accused] succeeded
during the entire transaction."54 Based apparently on those two in taking the pocket-book, and that determines the crime of theft. If the
circumstances, the trial court had found him guilty, instead, of frustrated pocket-book was afterwards recovered, such recovery does not affect the
theft. The Court reversed, saying that neither circumstance was decisive, [accused’s] criminal liability, which arose from the [accused] having
and holding instead that the accused was guilty of consummated theft, succeeded in taking the pocket-book.59
finding that "all the elements of the completed crime of theft are
present."55 In support of its conclusion that the theft was consummated, If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme
the Court cited three (3) decisions of the Supreme Court of Spain, the Court cases cited in the latter, in that the fact that the offender was able to
discussion of which we replicate below:

Page 44 of 71
succeed in obtaining physical possession of the stolen item, no matter how convicted of the consummated crime. Before the Court of Appeals, accused
momentary, was able to consummate the theft. 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
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein spontaneous desistance on the part of the accused that "literally frustrated
contradict the position of petitioner in this case. Yet to simply affirm the theft." However, the Court of Appeals, explicitly relying on Diño, did
without further comment would be disingenuous, as there is another find that the accused was guilty only of frustrated, and not consummated,
school of thought on when theft is consummated, as reflected in the Diño theft.
and Flores decisions.
As noted earlier, the appellate court admitted it found "no substantial
Diño was decided by the Court of Appeals in 1949, some 31 years after variance" between Diño and Flores then before it. The prosecution
Adiao and 15 years before Flores. The accused therein, a driver employed in Flores had sought to distinguish that case from Diño, citing a
by the United States Army, had driven his truck into the port area of the "traditional ruling" which unfortunately was not identified in the decision
South Harbor, to unload a truckload of materials to waiting U.S. Army itself. However, the Court of Appeals pointed out that the said "traditional
personnel. After he had finished unloading, accused drove away his truck ruling" was qualified by the words "is placed in a situation where [the
from the Port, but as he was approaching a checkpoint of the Military actor] could dispose of its contents at once." 66 Pouncing on this
Police, he was stopped by an M.P. who inspected the truck and found qualification, the appellate court noted that "[o]bviously, while the truck
therein three boxes of army rifles. The accused later contended that he had and the van were still within the compound, the petitioner could not have
been stopped by four men who had loaded the boxes with the agreement disposed of the goods ‘at once’." At the same time, the Court of Appeals
that they were to meet him and retrieve the rifles after he had passed the conceded that "[t]his is entirely different from the case where a much less
checkpoint. The trial court convicted accused of consummated theft, but bulk and more common thing as money was the object of the crime, where
the Court of Appeals modified the conviction, holding instead that only freedom to dispose of or make use of it is palpably less
frustrated theft had been committed. restricted,"67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.

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, Synthesis of the Diño and Flores rulings is in order. The determinative
perhaps in the belief that as the truck had already unloaded its cargo characteristic as to whether the crime of theft was produced is the ability
inside the depot, it would be allowed to pass through the check point of the actor "to freely dispose of the articles stolen, even if it were only
without further investigation or checking."60 This point was deemed momentary." Such conclusion was drawn from an 1888 decision of the
material and indicative that the theft had not been fully produced, for the Supreme Court of Spain which had pronounced that in determining
Court of Appeals pronounced that "the fact determinative of whether theft had been consummated, "es preciso que so haga en
consummation is the ability of the thief to dispose freely of the articles circunstancias tales que permitan al sustractor de aquella, siquiera sea
stolen, even if it were more or less momentary."61 Support for this mas o menos momentaneamente." The qualifier "siquiera sea mas o
proposition was drawn from a decision of the Supreme Court of Spain menos momentaneamente" proves another important consideration, as it
dated 24 January 1888 (1888 decision), which was quoted as follows: 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
Considerando que para que el apoderamiento de la cosa sustraida sea items in both cases were retrieved from the actor before they could be
determinate de la consumacion del delito de hurto es preciso que so haga physically extracted from the guarded compounds from which the items
en circunstancias tales que permitan al sustractor la libre disposicion de were filched. However, as implied in Flores, the character of the item
aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, stolen could lead to a different conclusion as to whether there could have
dado el concepto del delito de hurto, no puede decirse en realidad que se been "free disposition," as in the case where the chattel involved was of
haya producido en toda su extension, sin materializar demasiado el acto "much less bulk and more common x x x, [such] as money x x x." 68
de tomar la cosa ajena.62
In his commentaries, Chief Justice Aquino makes the following pointed
Integrating these considerations, the Court of Appeals then concluded: observation on the import of the Diño ruling:

This court is of the opinion that in the case at bar, in order to make the There is a ruling of the Court of Appeals that theft is consummated when
booty subject to the control and disposal of the culprits, the articles stolen the thief is able to freely dispose of the stolen articles even if it were more
must first be passed through the M.P. check point, but since the offense or less momentary. Or as stated in another case[69 ], theft is consummated
was opportunely discovered and the articles seized after all the acts of upon the voluntary and malicious taking of property belonging to another
execution had been performed, but before the loot came under the final which is realized by the material occupation of the thing whereby the thief
control and disposal of the looters, the offense can not be said to have been places it under his control and in such a situation that he could dispose of
fully consummated, as it was frustrated by the timely intervention of the it at once. This ruling seems to have been based on Viada’s opinion that in
guard. The offense committed, therefore, is that of frustrated theft. 63 order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
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 In the same commentaries, Chief Justice Aquino, concluding from Adiao
as to whether the theft is consummated or frustrated. This theory was and other cases, also states that "[i]n theft or robbery the crime is
applied again by the Court of Appeals some 15 years later, in Flores, a case consummated after the accused had material possession of the thing with
which according to the division of the court that decided it, bore "no intent to appropriate the same, although his act of making use of the thing
substantial variance between the circumstances [herein] and in was frustrated."72
[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 There are at least two other Court of Appeals rulings that are at seeming
the purportedly empty sea van onto his truck at the terminal of the variance with the Diño and Flores rulings. People v. Batoon 73 involved an
stevedoring company. The truck driver proceeded to show the delivery accused who filled a container with gasoline from a petrol pump within
receipt to the guard on duty at the gate of the terminal. However, the view of a police detective, who followed the accused onto a passenger
guards insisted on inspecting the van, and discovered that the "empty" sea truck where the arrest was made. While the trial court found the accused
van had actually contained other merchandise as well. 65 The accused was guilty of frustrated qualified theft, the Court of Appeals held that the
prosecuted for theft qualified by abuse of confidence, and found himself accused was guilty of consummated qualified theft, finding that "[t]he

Page 45 of 71
facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate frustrated because not all of the acts of execution were performed due to
that actual taking with intent to gain is enough to consummate the crime the timely arrival of the owner. However, following Article 6 of the Revised
of theft."74 Penal Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of
In People v. Espiritu,75 the accused had removed nine pieces of hospital the timely arrival of the owner, and not because of spontaneous desistance
linen from a supply depot and loaded them onto a truck. However, as the by the offenders.
truck passed through the checkpoint, the stolen items were discovered by
the Military Police running the checkpoint. Even though those facts clearly For these reasons, we cannot attribute weight to Empelis as we consider
admit to similarity with those in Diño, the Court of Appeals held that the the present petition. Even if the two sentences we had cited actually
accused were guilty of consummated theft, as the accused "were able to aligned with the definitions provided in Article 6 of the Revised Penal
take or get hold of the hospital linen and that the only thing that was Code, such passage bears no reflection that it is the product of the
frustrated, which does not constitute any element of theft, is the use or considered evaluation of the relevant legal or jurisprudential thought.
benefit that the thieves expected from the commission of the offense."76 Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
In pointing out the distinction between Diño and Espiritu, Reyes wryly
observes that "[w]hen the meaning of an element of a felony is Notably, Empelis has not since been reaffirmed by the Court, or even cited
controversial, there is bound to arise different rulings as to the stage of as authority on theft. Indeed, we cannot see how Empelis can contribute
execution of that felony."77 Indeed, we can discern from this survey of to our present debate, except for the bare fact that it proves that the Court
jurisprudence that the state of the law insofar as frustrated theft is had once deliberately found an accused guilty of frustrated theft. Even if
concerned is muddled. It fact, given the disputed foundational basis of the Empelis were considered as a precedent for frustrated theft, its doctrinal
concept of frustrated theft itself, the question can even be asked whether value is extremely compromised by the erroneous legal premises that
there is really such a crime in the first place. inform it, and also by the fact that it has not been entrenched by
subsequent reliance.
IV.
Thus, Empelis does not compel us that it is an insurmountable given that
The Court in 1984 did finally rule directly that an accused was guilty of frustrated theft is viable in this jurisdiction. Considering the flawed
frustrated, and not consummated, theft. As we undertake this inquiry, we reasoning behind its conclusion of frustrated theft, it cannot present any
have to reckon with the import of this Court’s 1984 decision in Empelis v. efficacious argument to persuade us in this case. Insofar as Empelis may
IAC.78 imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.

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 V.
tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo
gathered. The accused fled the scene, dropping the coconuts they had Penal de España was then in place. The definition of the crime of theft, as
seized, and were subsequently arrested after the owner reported the provided then, read as follows:
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 Son reos de hurto:
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. 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.
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 2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño
contained in only two sentences, which we reproduce in full: se la apropriaren co intención de lucro.

However, the crime committed is only frustrated qualified theft because 3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño
petitioners were not able to perform all the acts of execution which should causado, salvo los casos previstos en los artίculos 606, núm. 1.0; 607,
have produced the felony as a consequence. They were not able to carry núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y
the coconuts away from the plantation due to the timely arrival of the 618.
owner.80
It was under the ambit of the 1870 Codigo Penal that the aforecited
No legal reference or citation was offered for this averment, whether Diño, Spanish Supreme Court decisions were handed down. However, the said
Flores or the Spanish authorities who may have bolstered the conclusion. code would be revised again in 1932, and several times thereafter. In fact,
There are indeed evident problems with this formulation in Empelis. under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,
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 tomare las cosas muebles ajenas sin la voluntad de su dueño será
the felon as a consequence."81 However, per Article 6 of the Revised Penal castigado"82
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 Notice that in the 1870 and 1995 definition of theft in the penal code of
not able to perform all the acts of execution, the crime is attempted, Spain, "la libre disposicion" of the property is not an element or a statutory
provided that the non-performance was by reason of some cause or characteristic of the crime. It does appear that the principle originated and
accident other than spontaneous desistance. Empelis concludes that the perhaps was fostered in the realm of Spanish jurisprudence.
crime was

Page 46 of 71
The oft-cited Salvador Viada adopted a question-answer form in his 1926 Accordingly, it would not be intellectually disingenuous for the Court to
commentaries on the 1870 Codigo Penal de España. Therein, he raised at look at the question from a fresh perspective, as we are not bound by the
least three questions for the reader whether the crime of frustrated or opinions of the respected Spanish commentators, conflicting as they are,
consummated theft had occurred. The passage cited in Diño was actually to accept that theft is capable of commission in its frustrated stage.
utilized by Viada to answer the question whether frustrated or Further, if we ask the question whether there is a mandate of statute or
consummated theft was committed "[e]l que en el momento mismo de precedent that must compel us to adopt the Diño and Flores doctrines, the
apoderarse de la cosa ajena, viéndose sorprendido, la arroja al answer has to be in the negative. If we did so, it would arise not out of
suelo."83 Even as the answer was as stated in Diño, and was indeed derived obeisance to an inexorably higher command, but from the exercise of the
from the 1888 decision of the Supreme Court of Spain, that decision’s function of statutory interpretation that comes as part and parcel of
factual predicate occasioning the statement was apparently very different judicial review, and a function that allows breathing room for a variety of
from Diño, for it appears that the 1888 decision involved an accused who theorems in competition until one is ultimately adopted by this Court.
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 V.
away the garment as he fled.84

The foremost predicate that guides us as we explore the matter is that it


Nonetheless, Viada does not contest the notion of frustrated theft, and lies in the province of the legislature, through statute, to define what
willingly recites decisions of the Supreme Court of Spain that have held to constitutes a particular crime in this jurisdiction. It is the legislature, as
that effect.85 A few decades later, the esteemed Eugenio Cuello Calón representatives of the sovereign people, which determines which acts or
pointed out the inconsistent application by the Spanish Supreme Court combination of acts are criminal in nature. Judicial interpretation of penal
with respect to frustrated theft. 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
Hay frustración cuando los reos fueron sorprendidos por las guardias Congress, not the courts, which is to define a crime, and ordain its
cuando llevaban los sacos de harino del carro que los conducia a otro que punishment.88 The courts cannot arrogate the power to introduce a new
tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por element of a crime which was unintended by the legislature, or redefine a
la intervención de la policia situada en el local donde se realizó la crime in a manner that does not hew to the statutory language. Due
sustracción que impidió pudieran los reos disponer de lo sustraído, 30 de respect for the prerogative of Congress in defining crimes/felonies
octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento, constrains the Court to refrain from a broad interpretation of penal laws
pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay where a "narrow interpretation" is appropriate. "The Court must take
frustración "muy próxima" cuando el culpable es detenido por el heed of language, legislative history and purpose, in order to strictly
perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. determine the wrath and breath of the conduct the law forbids." 89
Algunos fallos han considerado la existencia de frustración cuando,
perseguido el culpable o sorprendido en el momento de llevar los efectos With that in mind, a problem clearly emerges with the Diño/Flores dictum.
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; The ability of the offender to freely dispose of the property stolen is not a
esta doctrina no es admissible, éstos, conforme a lo antes expuesto, son constitutive element of the crime of theft. It finds no support or extension
hurtos consumados.86 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
Ultimately, Cuello Calón attacked the very idea that frustrated theft is repeatedly held: the elements of the crime of theft as provided for in
actually possible: 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
La doctrina hoy generalmente sustentada considera que el hurto se taking be done with intent to gain; (4) that the taking be done without the
consuma cuando la cosa queda de hecho a la disposición del agente. Con consent of the owner; and (5) that the taking be accomplished without the
este criterio coincide la doctrina sentada últimamente porla use of violence against or intimidation of persons or force upon things. 90
jurisprudencia española que generalmente considera consumado el hurto
cuando el culpable coge o aprehende la cosa y ésta quede por tiempo más Such factor runs immaterial to the statutory definition of theft, which is
o menos duradero bajo su poder. El hecho de que éste pueda aprovecharse the taking, with intent to gain, of personal property of another without the
o no de lo hurtado es indiferente. El delito no pierde su carácter de latter’s consent. While the Diño/Flores dictum is considerate to the
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere mindset of the offender, the statutory definition of theft considers only the
recuperada. No se concibe la frustración, pues es muy dificil que el que perspective of intent to gain on the part of the offender, compounded by
hace cuanto es necesario para la consumación del hurto no lo consume the deprivation of property on the part of the victim.
efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos For the purpose of ascertaining whether theft is susceptible of
consumados.87 (Emphasis supplied) 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
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who position that theft is produced when there is deprivation of personal
was content with replicating the Spanish Supreme Court decisions on the property due to its taking by one with intent to gain. Viewed from that
matter, Cuello Calón actually set forth his own thought that questioned perspective, it is immaterial to the product of the felony that the offender,
whether theft could truly be frustrated, since "pues es muy dificil que el once having committed all the acts of execution for theft, is able or unable
que hace cuanto es necesario para la consumación del hurto no lo to freely dispose of the property stolen since the deprivation from the
consume efectivamente." Otherwise put, it would be difficult to foresee owner alone has already ensued from such acts of execution. This
how the execution of all the acts necessary for the completion of the crime conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier
would not produce the effect of theft. cited, that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate
This divergence of opinion convinces us, at least, that there is no weighted the same, although his act of making use of the thing was frustrated." 91
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 It might be argued, that the ability of the offender to freely dispose of the
crime of frustrated theft in this jurisdiction will not lead to scholastic property stolen delves into the concept of "taking" itself, in that there
pariah, for such a submission is hardly heretical in light of Cuello Calón’s could be no true taking until the actor obtains such degree of control over
position. 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

Page 47 of 71
would mean that not all the acts of execution have not been completed, the attempted stage, as not all of the acts of execution have been performed.
"taking not having been accomplished." Perhaps this point could serve as But once all these acts have been executed, the taking has been completed,
fertile ground for future discussion, but our concern now is whether there causing the unlawful deprivation of property, and ultimately the
is indeed a crime of frustrated theft, and such consideration proves consummation of the theft.
ultimately immaterial to that question. Moreover, such issue will not apply
to the facts of this particular case. We are satisfied beyond reasonable Maybe the Diño/Flores rulings are, in some degree, grounded in common
doubt that the taking by the petitioner was completed in this case. With sense. Yet they do not align with the legislated framework of the crime of
intent to gain, he acquired physical possession of the stolen cases of theft. The Revised Penal Code provisions on theft have not been designed
detergent for a considerable period of time that he was able to drop these in such fashion as to accommodate said rulings. Again, there is no language
off at a spot in the parking lot, and long enough to load these onto a taxicab. 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
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is theft has been produced. Diño itself did not rely on Philippine laws or
deemed complete from the moment the offender gains possession of the jurisprudence to bolster its conclusion, and the later Flores was ultimately
thing, even if he has no opportunity to dispose of the same. 92 And long ago, content in relying on Diño alone for legal support. These cases do not enjoy
we asserted in People v. Avila:93 the weight of stare decisis, and even if they did, their erroneous
appreciation of our law on theft leave them susceptible to reversal. The
x x x [T]he most fundamental notion in the crime of theft is the taking of same holds true of Empilis, a regrettably stray decision which has not
the thing to be appropriated into the physical power of the thief, which since found favor from this Court.
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 We thus conclude that under the Revised Penal Code, there is no crime of
be here noted that the definition does not require that the taking should frustrated theft. As petitioner has latched the success of his appeal on our
be effected against the will of the owner but merely that it should be acceptance of the Diño and Flores rulings, his petition must be denied, for
without his consent, a distinction of no slight importance. 94 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
Insofar as we consider the present question, "unlawful taking" is most the Revised Penal Code does not detract from the correctness of this
material in this respect. Unlawful taking, which is the deprivation of one’s conclusion. It will take considerable amendments to our Revised Penal
personal property, is the element which produces the felony in its Code in order that frustrated theft may be recognized. Our deference to
consummated stage. At the same time, without unlawful taking as an act Viada yields to the higher reverence for legislative intent.
of execution, the offense could only be attempted theft, if at all.
WHEREFORE, the petition is DENIED. Costs against petitioner.
With these considerations, we can only conclude that under Article 308 of
the Revised Penal Code, theft cannot have a frustrated stage. Theft can SO ORDERED.
only be attempted or consummated.
QUALIFIED THEFT
Neither Diño nor Flores can convince us otherwise. Both fail to consider
that once the offenders therein obtained possession over the stolen items, G.R. No. 199208 July 30, 2014
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 PEOPLE OF THE PHILIPPINES, Appellee,
been deprived of their right to possession upon the completion of the vs.
taking. TRINIDAD A. CAHILIG, Appellant.

Moreover, as is evident in this case, the adoption of the rule —that the DECISION
inability of the offender to freely dispose of the stolen property frustrates
the theft — would introduce a convenient defense for the accused which CARPIO, J.:
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 The Case
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 Before the Court is an appeal by Trinidad A. Cahilig (Cahilig) from the
offender at the time of the commission of the crime, as implied in Diño? 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,
Or, more likely, the appreciation of several classes of factual Makati City in Criminal Case Nos. 03-2178 to 2207 finding her guilty of
circumstances such as the size and weight of the property, the location of thirty (30) counts of Qualified Theft.
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 The Facts
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 Cahilig worked as cashier at Wyeth Philippines Employees Savings and
more. Even the fungibility or edibility of the stolen item would come into Loan Association, Inc. (WPESLAI) from December 1992 until 7 November
account, relevant as that would be on whether such property is capable of
2001. She was tasked with handling, managing, receiving, and disbursing
free disposal at any stage, even after the taking has been consummated.
the funds of the WPESLAI.1

All these complications will make us lose sight of the fact that beneath all It was discovered that from 31 May 2000 to 31 July 2001, Cahilig made
the colorful detail, the owner was indeed deprived of property by one who withdrawals from the funds ofWPESLAI and appropriated the same for
intended to produce such deprivation for reasons of gain. For such will her personal benefit.2 Cahilig would prepare disbursement vouchers, to be
remain the presumed fact if frustrated theft were recognized, for therein, approved by the WPESLAI president and Board of Directors, in order to
all of the acts of execution, including the taking, have been completed. If withdraw funds from one of WPESLAI’s bank accounts then transfer these
the facts establish the non-completion of the taking due to these peculiar funds to its other bank account. The withdrawal was done by means of a
circumstances, the effect could be to downgrade the crime to the
Page 48 of 71
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 18. In Criminal Case No. 03-2195, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
The RTC found Cahilig guilty of the crimes charged, in a Decision dated 16
June 2005, the dispositive portion of which reads: 19. In Criminal Case No. 03-2196, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
WHEREFORE, in view of all the foregoing, this Court hereby finds Trinidad
Cahlig guilty beyond reasonable doubt of the crime of qualified theft in 20. In Criminal Case No. 03-2197, ten (10) years and one (1) day as
each of the informations, and sentences her to suffer the penalty of: minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱30,000.00;
1. In Criminal Case No. 03-2178, reclusion perpetuaand to indemnify the
private complainant in the amount of ₱200,000.00; 21. In Criminal Case No. 03-2198, reclusion perpetua and to indemnify the
private complainant in the amount of ₱400,000.00;
2. In Criminal Case No. 03-2179, reclusion perpetua and to indemnify the
private complainant in the amount of ₱250,000.00; 22. In Criminal Case No. 03-2199, reclusion perpetua and to indemnify the
private complainant in the amount of ₱300,000.00;
3. In Criminal Case No. 03-2180, reclusion perpetuaand to indemnify the
private complainant in the amount of ₱200,000.00; 23. In Criminal Case No. 03-2200, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
4. In Criminal Case No. 03-2181, reclusion perpetuaand to indemnify the
private complainant in the amount of ₱55,000.00; 24. In Criminal Case No. 03-2201, reclusion perpetua and to indemnify the
private complainant in the amount of ₱65,000.00;
5. In Criminal Case No. 03-2182, reclusion perpetua and to indemnify the
private complainant in the amount of ₱55,000.00; 25. In Criminal Case No. 03-2202, reclusion perpetua and to indemnify the
private complainant in the amount of ₱47,000.00;
6. In Criminal Case No. 03-2183, reclusion perpetua and to indemnify the
private complainant in the amount of ₱85,000.00; 26. In Criminal Case No. 03-2203, reclusion perpetua and to indemnify the
private complainant in the amount of ₱500,000.00;
7. In Criminal Case No. 03-2184, reclusion perpetua and to indemnify the
private complainant in the amount of ₱350,000.00; 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
8. In Criminal Case No. 03-2185, reclusion perpetua and to indemnify the complainant in the amount of ₱40,000.00;
private complainant in the amount of ₱250,000.00;
28. In Criminal Case No. 03-2205, reclusion perpetua and to indemnify the
9. In Criminal Case No. 03-2186, ten (10) years and one (1) days (sic) as private complainant in the amount of ₱400,000.00;
minimum to twenty (20) years as maximum and to indemnify the private
complainant in the amount of ₱20,000.00; 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
10. In Criminal Case No. 03-2187, reclusion perpetua and to indemnify the complainant in the amount of ₱35,000.00;
private complainant in the amount of ₱250,000.00;
30. In Criminal Case No. 03-2207, reclusion perpetua and to indemnify the
11. In Criminal Case No. 03-2188, reclusion perpetua and to indemnify the private complainant in the amount of ₱500,000.00.
private complainant in the amount of ₱60,000.00;
Costs against accused in eachof the above numbered cases.
12. In Criminal Case No. 03-2189, reclusion perpetua and to indemnify the
private complainant in the amount of ₱150,000.00; SO ORDERED.5

13. In Criminal Case No. 03-2190, reclusion perpetua and to indemnify the The RTC held that Cahilig, as cashier of WPESLAI, was granted trust and
private complainant in the amount of ₱50,000.00; confidence by the key officers ofthe association. The RTC noted that
Cahilig "enjoyed access to the funds and financial records of the
14. In Criminal Case No. 03-2191, ten (10) years and one (1) day as association, a circumstance that understandably facilitated her easy
minimum to twenty (20) years as maximum and to indemnify the private withdrawal of funds which she converted to her personal use in the
complainant in the amount of ₱4[6],300.00; manner heretofore described. Undoubtedly, she betrayed the trust and
confidence reposed upon her by her employer."6

15. In Criminal Case No. 03-2192, reclusion perpetua and to indemnify the
private complainant in the amount of ₱205,000.00; The Ruling of the Court of Appeals

16. In Criminal Case No. 03-2193, reclusion perpetua and to indemnify the Cahilig appealed her conviction to the CA. In a Decision dated 18 February
private complainant in the amount of ₱200,000.00; 2011, the CA denied her appeal and affirmed the RTC’s Decision.

17. In Criminal Case No. 03-2194, ten (10) years and one (1) day as The CA held that all the elements of Qualified Theft were present in every
minimum to twenty (20) years as maximum and to indemnify the private charge:
complainant in the amount of ₱25,000.00;
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
Page 50 of 71
the association which are supposed to be redeposited to another account 5. That it be accomplished without the use of violence or intimidation
of WPESLAI. Second, the property belongs to another, since the funds against persons, nor of force upon things;
undisputably belong to WPESLAI. Third, the taking was done without the
consent of the owner, which is obvious because accusedappellant created 6. That it be done with grave abuse of confidence. 8
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 It is clear that all the elements ofQualified Theft are present in these cases.
benefit, took the fundsby means of a modus operandi that made it appear
through the entries inthe ledgers that all withdrawals and deposits were Cahilig took money from WPESLAI and its depositors by taking advantage
made in the normal course of business and with the approval of WPESLAI. of her position. Her intent to gain is clear in the use of a carefully planned
Fifth, the taking was accomplished without violence or intimidation and deliberately executed scheme to commit the theft.
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 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
The Court’s Ruling degree of confidence betweenthem which the appellant abused." 9

The Court denies the petition. However, the penalties imposed by the trial Cahilig’s position was one reposed with trust and confidence, considering
court in six of the 30 cases are incorrect and, therefore, must be modified. that it involves "handling, managing, receiving, and disbursing" money
from WPESLAI’s depositors and other funds of the
Qualified Theft association.1âwphi1 Cahilig’s responsibilities as WPESLAI cashier
required prudence and vigilance over the money entrusted into her care.
Article 310, in relation to Article 308, of the Revised Penal Code defines
the crime of Qualified Theft: 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
Art. 310. Qualified theft. - The crime of theft shall be punished by the deny.
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 Proper Penalty
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 trial court, however, erred inthe penalty imposed in Criminal Case
the occasion of fire, earthquake, typhoon, volcanic eruption, or any other Nos. 03-2186, 03-2191, 03-2194, 03-2197, 03-2204, and 03-2206.
calamity, vehicular accident or civil disturbance.
To recall, the amounts involved in the aforesaid cases are ₱20,000.00,
Art. 308. Who are liable for theft. - Theft is committed by any person who, ₱46,300.00, ₱25,000.00, ₱30,000.00, ₱40,000.00, and ₱35,000.00,
with intent to gain but without violence against or intimidation of persons respectively.
nor force upon things, shall take personal property of another without the
latter’s consent.
Article 310 provides that Qualified Theft "shall be punished by the
penalties next higher by two degrees than those respectively specified in
Theft is likewise committed by: the next preceding article." Article 309, in turn, states:

1. Any person who, having found lostproperty, shall fail to deliver the Art. 309. Penalties. -Any person guilty of theft shall be punished by:
same to the local authorities or to its owner;
1. The penalty of prision mayor in its minimum and medium periods, if the
2. Any person who, after having maliciously damaged the property of value of the thing stolen is more than 12,000 pesos but does not exceed
another, shall remove or make use of the fruits or objects of the damage 22,000 pesos; but if the value of the thing stolen exceeds the latter amount,
caused by him; and 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
3. Any person who shall enter an enclosed estate or a field where trespass total of the penalty which may be imposed shall not exceed twenty years.
is forbidden or which belongs to another and without the consent of its In such cases, and in connection with the accessory penalties which may
owner, shall hunt or fish upon the same or shall gather fruits, cereals, or be imposed and for the purpose of the other provisions of this Code, the
other forest or farm products. penalty shall be termed pr is ion mayor or reclusion temporal, as the case
may be.
Thus, the elements of Qualified Theft, committed with grave abuse of
confidence, are as follows: xxxx

1. Taking of personal property; 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
2. That the said property belongs to another; minimum and medium periods. Since it was established that the crime
was qualified by grave abuse of confidence, Article 310 provides that the
3. That the said taking be done with intent to gain; 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
4. That it be done without the owner’s consent; 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
Page 51 of 71
out by the trial court in Criminal Case Nos. 03-2186, 03-2191, 03-2194, or on November 17, 1989 or for the whole month of November of that
03-2197, 03-2204, and 03-2206, appellant Trinidad A. Cahilig is hereby year. Salazar disclosed that around July 1990 he heard that the funds of
sentenced to suffer the penalty of reclusion perpetua for each count of other depositors were missing inside the BABSLA and were supposedly
qualified theft in the aforesaid cases. The judgment to indemnify the clandestinely circulating around the base. Prodded by this news, and
amounts in each of the corresponding charges stands. 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
SO ORDERED. 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
G.R. No. 138954 November 25, 2004 evidenced by three (3) withdrawal slips. Included among these
withdrawal slips is one with the amount of P10,000, dated November 16,
ASUNCION GALANG ROQUE, petitioner, 1989. Salazar claimed that the signature appearing on said withdrawal
vs. slip was not his signature. He does not personally know who made the
PEOPLE OF THE PHILIPPINES, respondent. 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
DECISION 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
AZCUNA, J.: 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
This is a petition for review on certiorari under Rule 45 of the 1997 Rules three (3) withdrawal slips and in the withdrawal slip dated November 16,
of Civil Procedure, assailing the decision of the Court of Appeals in CA–G.R. 1989 the initial after the figure 11-17-89 is the customary initial of the
CR No. 20411, entitled "People of the Philippines vs. Asuncion Galang petitioner. She claimed that she was familiar with the customary initial of
Roque," which affirmed in toto the decision of the Regional Trial Court the petitioner. The withdrawal slip dated November 16, 1989 was made
(RTC) of Guagua, Pampanga, Branch 49, where petitioner was found guilty after 3:00 o'clock in the afternoon of the same day but was stamped 11-
of the crime of qualified theft. 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.
In an information dated December 3, 1990, the petitioner was charged
with qualified theft in the Regional Trial Court of Guagua Pampanga, De Lazo further testified that at the commencement of the business hour,
Branch 49. The Information reads as follows: 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
That on or about the 16th day of November, 1989, in the municipality of used to serve all kinds of transactions pertaining to withdrawals. The
Floridablanca, province of Pampanga, Philippines and within the initial over the typewritten name "agroque" is the customary initial of the
jurisdiction of his Honorable Court, the above-named accused ASUNCION petitioner, Asuncion Galang Roque. De Lazo claimed to be familiar with it.
GALANG ROQUE, being then employed as teller of the Basa Air Base At the end of the work day petitioner prepared the Abstract of Payment,
Savings and Loan Association Inc. (BABSLA) with office address at Basa which is a summary of the withdrawals the teller paid that day as
Air Base, Floridablanca, Pampanga, and as such was authorized and evidenced by several withdrawal slips.
reposed with the responsibility to receive and collect capital contributions
from its member/contributors of said corporation, and having collected De Lazo testified that before the petitioner went on forced leave petitioner
and received in her capacity as teller of the BABSLA the sum of TEN sought her assistance because she feared she would be removed from
THOUSAND PESOS (P10,000.00), said accused, with intent of gain, with work. She claimed that petitioner admitted to taking some money from
grave abuse of confidence and without the knowledge and consent of said the depositors, including the account of Sgt. Salazar. Unable to help
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 of the BABSLA, who told her to return the money immediately. Petitioner
making it appear that a certain depositor by the name of Antonio Salazar told Col. Dunilayan that she would return the money. She failed to do so.
withdrew from his Savings Account No. 1359, when in truth and in fact During the same meeting, petitioner, in the presence of Col. Dunilayan and
said Antonio Salazar did not withdr[a]w the said amount of P10,000.00 to de Lazo, prepared a list containing the names of members from whose
the damage and prejudice of BABSLA in the total amount of P10,000.00, accounts she took money. Petitioner gave the list to Col. Dunilayan. When
Philippine currency. 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
All contrary to law.1 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
The evidence of the prosecution consisted of the testimonies of three corresponding entries could be made in order to avoid a discrepancy
witnesses, namely: Antonio Salazar, Rosalina de Lazo and Reynaldo between the ledger and the passbook, nor did she send notice to Antonio
Manlulu and Exhibits A to G with submarkings. 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
The first prosecution witness, Antonio Salazar (Salazar) is a was not recorded in the passbook. There are only a few cases wherein she
member/depositor of the Basa Air Base Savings and Loan Association Inc. (de Lazo) allows deposits to be made without the presentation of the
(BABSLA) as evidenced by his passbook No. 1359. He was made to sign passbook on the same day. In these instances she just requires the
two ledgers when he opened his savings account. On November 16, 1989, depositor to come some other time for the recording of the transaction in
Salazar made a deposit of P2,000 at the BABSLA; however, he did not make the passbook. As of the date of this testimony, the BABSLA had already
any withdrawal, nor did he authorize anyone to do the same on that date paid deposits on accounts from which the petitioner had taken money,
including that of Antonio Salazar as indicated in the bank records. 3
Page 52 of 71
The third and last prosecution witness is Reynaldo Manlulu, who is both dismissal of the petitioner based on the evidence the committee gathered.
the treasurer and a member of the board of directors of the BABSLA. He He was present when the evidence and witnesses were presented. Proper
testified that petitioner was the teller of the BABSLA in November 1989 notices were sent to the accused. The chairman of the committee,
and that she reported for work on the 17th of that month. He intimated Leonardo Tolentino, concluded that the initials on the withdrawal slips
that on that date petitioner got a beginning cash from him amounting to were similar to the petitioner's initials. He did not suggest the consultation
P355,984.53, including all the the transactions that occurred after 3:00 of a handwriting expert on forgery since there were other pieces of
p.m. of the preceding day. This beginning cash can be seen in the Teller's evidence showing that the petitioner figured in the anomaly because
Daily Report. The signature above the typewritten name "agroque" is several witnesses identified the figures appearing in the original copy of
petitioner's because she signed it in his presence. Apart from the the questioned receipt as written by the petitioner. His conclusion that no
beginning cash, he also turned over to petitioner the transactions that took one else could have done it except for Mrs. Roque was arrived at only after
place after 3:00 p.m. of the preceding day, particularly the withdrawal slip the investigation of the records and documents presented to the
of MSgt. Salazar. At the end of the business day of November 17, 1989, she committee.6
prepared an abstract of payment and in this abstract the initial over the
typewritten name "agroque" is the initial of the petitioner because she The RTC found the petitioner guilty beyond reasonable doubt of the crime
signed it in his presence. Petitioner paid the withdrawal of P16,300 charged, on the following grounds:
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 After a careful evaluation of the evidence presented by both sides, the
Count shows the total cash that petitioner turned over to him. The initial Court finds that the prosecution has proved the guilt of the accused
over the typewritten name "agroque" is petitioner's because it was signed beyond reasonable doubt. This finding is supported by the categorical
in his presence.4 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)
The evidence for the petitioner consists of the testimony of the petitioner prepared by the accused and signed by the accused in his presence ( TSN,
herself and that of Atty. Norbin Dimalanta and Exhibits 1 to 5 with sub- March 25, 1993, page 3). At the close of business day of November 17,
markings. 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
Petitioner, Asuncion Galang Roque, testified that she was employed as also turned over to the accused the transactions that took place after 3:00
teller at the BABSLA from 1979 until her termination in 1990. In the o'clock of the preceding day particularly the withdrawal slip of M/Sgt.
morning she gets the money from the treasurer and they do a cash count Salazar (Id., page 4) so that it can be entered on the records on that very
which is reflected in the Teller's Daily Report and at 3:00 p.m. she date as bank regulation requires that transactions occurring after 3:00
prepares and submits an abstract of payment. However, before making o'clock of a particular day are recorded the following day. This explains
the abstract, she and the treasurer conduct a cash count and the remaining why although the questionable withdrawal slip was dated November 16,
cash is turned over to the treasurer. As a teller, she received deposits and 1989 it was stamped paid on November 17, 1989, for record purposes.
payments, deposits of checks and payments of loans. She does not Since it was the accused who gave Reynaldo Manlulu the withdrawal slip
discharge any memorandum or withdrawals unless both the manager and dated November 16, 1989 the presumption is that, being in possession of
the treasurer previously approve it. Depositors cannot withdraw after said withdrawal slip before its delivery to Reynaldo Manlulu, the accused
3:00 p.m., unless they talk to the manager or treasurer. Withdrawals done is the one who prepared the said withdrawal slip. This particular
after 3:00 p.m. are reflected as transactions of the following day. She transaction was turned over to him by the accused the previous day (Id.,
insisted that the charge against her of stealing and carrying away P10,000 page 5).
is false since she did not prepare the withdrawal slip dated November 16,
1989 which involves the account of Antonio Salazar. She also denied The Teller's Daily Report dated November 17, 1989 reflects, among
forging the signature of Salazar and affixing her initial. Petitioner also others, a total withdrawal on that date in the amount of P16,300.00. This
disowned the initial in the abstract of payment dated November 17, 1989 amount is the totality of withdrawal after adding the seven (7) legitimate
and the initials on several withdrawal slips. She claimed to be innocent withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and the
and contended that Rosalina de Lazo is the one who is guilty because she questionable withdrawal of P10,000.00 (Exh. C). On the other hand, the
was only used by the president. The latter is still connected with the Abstract of Payment (Exh. E) reflects, among others, a savings withdrawal
BABSLA while the petitioner was terminated in June 1990. of P16,300.00 which tallies with the Teller's Daily Report of that date and
with the seven (7) withdrawal slips.
Throughout the eleven years that petitioner worked as a teller at the
BABSLA, she had never been absent from work or required by the The defense interposed by the accused is one of denial. She claimed that
treasurer to explain any discrepancy or anomaly related to the cash that all the initials in the withdrawal slip of P10,000.00 (Exh. C), on the Teller's
she handled as a teller. Before her dismissal, petitioner was not suspended Daily Report (Exh. D), in the Abstract of Payment (Exh. E) as well as on the
by the board of directors of the BABSLA during the investigation of her list of names of depositors (Exh. G) are not hers, implying, therefore, that
case. She was put on forced leave which eventually led to her termination. these documents were prepared by somebody else. To emphasize that the
The manager was also supposed to be on forced leave. However, when the initials on Exhibits C, D, E, and G are not hers, accused during the hearing
manager reported for work and some members protested and filed a on March 18, 1993 wrote six (6) of her initials in a piece of paper (Exh.
petition, the president asked them to retract their statements by means of "1"). However, the Court is not in a position to state whether the initial in
executing an affidavit of desistance. Even though petitioner received Exhibit 1 is the same or different from the initials in Exhibits C, D, E, and G
notice regarding the investigation, she did not attend because she knew not being an expert along that line. Accused could have very well availed
the personalities of the members of the committee. Only the accused and of court processes to request the NBI or PNP Crime Laboratory to
the complainants whose accounts were withdrawn were investigated. She determine whether or not the initials in Exhibits C, D, E, and G are hers by
filed a complaint with the Department of Labor in connection with her comparing the same with similar documents on file with the BABSLA
dismissal but it was dismissed because she did not pursue it. Apart from which are abundant as said documents are prepared daily and accused
the president, there were seven (7) members of the board of directors of was, prior to her dismissal, the only teller of BABSLA for over a year and
the BABSLA in 1990: Col. Dunilayan, Col. Sanchez, MSgt. Romero, Sgt. has therefore accomplished a lot of these documents. Unfortunately,
Manlulu, Sgt. Torato, Mrs. Bagasbas and Capt. Baluyut. Capt. Baluyut was accused did not make any attempt to do so. At any rate, denial cannot
subsequently dimissed as a member of the board of directors. 5 prevail over the affirmative and categorical testimony of Reynaldo
Manlulu who stated that accused turned over to him the questionable
The second witness for the petitioner was Atty. Norbin Dimalanta. He withdrawal slip on November 16, 1989 and it was in turn returned to the
averred that he only gave advice regarding the legality of the possible accused by said witness the following day November 17, 1989 in order

Page 53 of 71
that said transaction may be reflected on the records on that date. Said which is shown in a Teller's Daily Report (Exh. D) prepared by the accused
witness also positively testified that the accused initialed in his presence and signed by the accused in his presence (TSN, March 25, 1993, page 30).
the Teller's Daily Report and the Abstract of Payment which said accused At the close of business day of November 17, 1989 the accused also
prepared on November 17, 1989. Denial is a self-serving negative prepared an Abstract of Payment (Exh. E) and signed it in his presence (Id.,
evidence that cannot be given greater weight than the declaration of page 6). Aside from the beginning cash he also turned over to the accused
credible witnesses who testified on affirmative matters (People vs. Carizo, the transaction that took place after 3:00 o'clock of the preceding day
233 SCRA 687). Like alibi, denial is inherently a weak defense and cannot particularly the withdrawal slip of M/Sgt. Salazar (Id., page 4) so that it
prevail over the positive and credible testimony of the prosecution can be entered on the records on that very date as bank regulation
witnesses (People vs. Macagaleng, 237 SCRA 299). required that transaction occurring after 3:00 o'clock of a particular day
are recorded the following day. This explains why although the
Accused after denying that the initials over the typewritten name A. G. questionable withdrawal slip was dated November 16, 1989 it was
Roque found in several exhibits introduced by the prosecution are not stamped paid on November 17, 1989 for record purposes. Since it was the
hers concentrated [on] her defense that Rosalina de Lazo, another accused who gave Reynaldo Manlulu the withdrawal slip dated November
prosecution witness, and the General manager of BABSLA was the author 16, 1989 the presumption is that being in possession of said withdrawal
of the anomaly being imputed against her because said witness has slip before its delivery to Reynaldo Manlulu the accused is the one who
committed certain anomalous transactions at the BABSLA in the past. prepared the said withdrawal slip. This particular transaction was tuned
Accused, however, never mentioned a word about the testimony of over to him by the accused the previous day (Id., page 5).
Reynaldo Manlulu which actually proved her undoing. She failed to
controvert nor even comment on the damaging testimony of Reynaldo The Teller's Daily Report dated November 17, 1989 reflects among others
Manlulu that she turned over to him the questionable withdrawal slip and a total withdrawal on that date in the amount of P16,300.00. This amount
signed and/or placed her initial on the Teller's Daily Report and Abstract is the totality of withdrawal after adding the seven (7) legitimate
of Payment in his presence. Accused did not present any evidence that withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and the
Reynaldo Manlulu had ulterior motives to testify falsely against her. When questionable withdrawal of P10,000.00 (Exh. C). On the other hand the
there is no evidence indicating that the principal witness for the Abstract of Payment (Exh. E) reflects among others a savings withdrawal
prosecution was moved by improper motive, the presumption is that he of P16,300.00 which tallies with the Teller's Daily Report of that date and
was not so moved, and his testimony is entitled to full faith and credit. with the seven (7) withdrawal slips.
(People vs. Perciano, 233 SCRA 393). Accused also failed to controvert the
testimony of Rosalina de Lazo that accused confessed before Col. Appellant's defense is one of denial. She claims that the initials in the
Dunilayan, the president of BABSLA that she took money from some withdrawal slip of P10,000.00 (Exh. C) the Teller's Daily Report (Exh. D)
depositors which she promised to return and in fact wrote down the the Abstract of Payment (Exh. E) and list of names of depositors (Exh. G)
names of said depositors before Col. Dunilayan in a piece of paper which are not hers thus implying that these documents were prepared by
she handed to him. This fact and [it being] taken in the light that she failed somebody else. To bolster her claim she wrote her initials six (6) times on
to appear for investigation after the anomaly was discovered despite due a piece of paper during the hearing on March 18, 1993 (Exh. 2) probably
notice, and her lack of interest to pursue a case she filed before the for comparison purposes. Admittedly there are noticeable differences
Department of Labor which caused its dismissal, do not speak well of her between her initials in Exhibit 2 and those appearing on Exhibits C to G.
claim of innocence. This is of course understandable. It was not difficult for appellant to feign
her initials in Exhibit 2 in order to mislead the Court.
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 At any rate no less than Rosalina de Lazo who as general manager of
value property stolen is more than P6,000.00 but does not exceed BABSLA is familiar with the initials has positively identified the initials on
P12,000.00 and since the accused is charged for qualified theft, and the Exhibits C to G as hers. Likewise, Reynaldo Manlulu categorically stated
property or money stolen is P10,000.00, under Art. 310 the penalty not only that the questionable withdrawal slip (Exh. C) was turned over to
prescribed for this crime is increased two (2) degrees higher, the basis of him by appellant on November 16, 1989 and returned to her on November
which is Art. 309, paragraph 2. Therefore the corresponding penalty is 17, 1989 but also that the Teller's Daily Report (Exh. D) and the Abstract
prision mayor maximum to reclusion temporal minimum. However, as the of Payment (Exh. E) were initialed by her in his presence. Needless to say
accused is qualified [under] the indeterminate sentence law, the the initials in Exhibits C, D, and E bear such similarities as would lead to
prescribed penalty for her in this case is prision mayor as minimum to the conclusion that they were prepared by one and the same person.
reclusion temporal as maximum. Hence, a more worthy and reliable evidence than the mere samples of her
initials written during the trial is required to controvert the positive
WHEREFORE, judgment is rendered finding the accused guilty beyond testimonies of Rosalina de Lazo and Reynaldo Manlulu.
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 No cogent reason has been shown for this court not to give credence to the
mayor as minimum to 12 years, 2 months and 1 day of reclusion temporal prosecution witnesses. As aptly observed by the court a quo:
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.
Accused after denying that the initials over the typewritten name A.G.
Roque found in several exhibits introduced by the prosecution are not
SO ORDERED.7 hers concentrated [on] her defense that Rosalina de Lazo another
prosecution witness and the General Manager of BABSLA was the author
On appeal, the appellate court found the conviction in accord with law and of the anomaly being imputed against her because said witness has
the evidence and affirmed the decision of the RTC in toto. The Court of committed certain anomalous transactions at the BABSLA in the past.
Appeals, quoting at length the lower court, reasoned, thus: Accused however, never mentioned a word about the testimony of
Reynaldo Manlulu which actually proved her undoing. She failed to
The Court fully agrees with the court a quo in finding that appellant's guilt controvert nor even comment on the damaging testimony of Reynaldo
has been proven beyond reasonable doubt. As aptly pointed out by the Manlulu that she turned over to him the questionable withdrawal slip and
lower court: 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
This finding is supported by the categorical testimony of prosecution there is no evidence indicating that the principal witness for the
witness Reynaldo Manlulu who testified that on November 17, 1989 prosecution was moved by improper motive the presumption is that he
accused received from him a beginning cash in the amount of P355,984.53 was not so moved and his testimony is entitled to full faith and credit.
Page 54 of 71
(People vs. Perciano 233 SCRA 393). Accused also failed to controvert the First Issue
testimony of Rosalina de Lazo that the accused confessed before Col.
Dunilayan the president of BABSLA that she took money from some Petitioner contends:
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 Theft as defined in Article 308 of the Revised Penal Code requires physical
to appear for investigation after the anomaly was discovered despite due taking of another's property without violence or intimidation against
notice, and her lack of interest to pursue a case she filed before the persons or force upon things.
Department of Labor which caused its dismissal, do not speak well of her
claim of innocence. 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
In sum, the Court finds appellant's conviction of the offense charged in persons in taking of personal properties. In the crime of theft the taking of
accord with law and evidence.8 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
Petitioner now raises the following issues: of the owner.

I Under Article 308 of the Revised Penal Code, the following are the
elements of the crime of theft:
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE 1. Intent to gain;
CRIME OF QUALIFIED THEFT THROUGH FALSIFICATION OF BANK
DOCUMENTS?
2. Unlawful taking;
II
3. Personal property belonging to another;
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE 4. Absence of violence or intimidation against persons or force upon
CRIME OF QUALIFIED THEFT BECAUSE OF THE WEAKNESS OF THE things.
DEFENSE OFFERED BY PETITIONER AND NOT ON THE STRENGTH OF
THE EVIDENCE OF THE PROSECUTION? The foregoing requirements presume that the personal property is in the
possession of another, unlike estafa, [where] the possession of the thing is
III already in the hands of the offender. In People vs. Lacson, 57 Phil. 325, it
was held:
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE "Commentators on the Spanish Penal Code lay great stress on the taking
CRIME OF QUALIFIED THEFT IN THE ABSENCE OF ANY EVIDENCE away, that is, getting possession in theft, laying hold of the thing, so that if
WHETHER TESTIMONIAL OR DOCUMENTARY TO THE EFFECT THAT the thing is not taken away, but received and then appropriated or
PETITIONER WAS SEEN OR CAUGHT IN THE ACT OF TAKING OR converted, without consent of the owner, it may be any other crime, that
CARRYING AWAY THE SUM OF P10,000.00? of estafa for instance."

IV 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
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED negative. xxx10
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 Petitioner's argument contradicts jurisprudence. In U.S. v. De Vera, 11 the
WAS NEVER OFFERED IN EVIDENCE BY THE PROSECUTION? 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
V silver coins. Accused appropriated the bar of gold and bank notes. This
Court, citing Spanish and U.S. jurisprudence, ruled that the crime
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED committed was theft and not estafa since the delivery of the personal
THE DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE property did not have the effect of transferring the juridical possession,
CRIME OF QUALIFIED THEFT WHEN THE PROSECUTION FAILED TO thus such possession remained in the owner; and the act of disposal with
PROVE BEYOND REASONABLE DOUBT THE FACT OF LOSS OF THE gainful intent and lack of owner's consent constituted the crime of theft.
AMOUNT OF P10,000.00 IN THE ABSENCE OF ANY AUDIT BY AN
INDEPENDENT AUDITOR?9 The principle enunciated in U.S. v. De Vera was reiterated in People v.
Trinidad,12 thus:
Said issues may be summed up into two:
The defendant received a finger ring from the offended party for the
1. Whether or not qualified theft may be committed when the personal purpose of pledging it as security for a loan of P5 for the benefit of said
property is in the lawful possession of the accused prior to the commission offended party. Instead of pledging the ring, the defendant immediately
of the alleged felony? carried it to one of her neighbors to whom she sold it for P30 and
appropriated the money to her own use.
2. Whether or not the elements of qualified theft were proven?
xxx

Page 55 of 71
The defendant is undoubtedly guilty of having sold the ring without that of estafa for instance, but in no way that of theft, which consists in the
authority and the only question which presents some difficulty is to taking away of the thing, that is, in removing it from the place where it is
determine whether the crime committed was theft or whether it should kept by the legal owner, without the latter's consent, that is, without
be classified as estafa. The question is discussed at length in the case of obtaining for the purpose the consent of the legitimate owner."
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 The doctrine of the case as stated in the syllabus is as follows:
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 "When the delivery of a chattel or cattle has not the effect of transferring
and without the consent of the owner constitutes the crime of theft." This the juridical possession thereof, or title thereto, it is presumed that the
view seems to be supported both by Spanish and American authorities. 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."
xxx

The Supreme Court of Spain in a decision of June 23, 1886 held that a
Though the facts in the present case differs somewhat from those in the shepherd, who takes away and converts to his own use several head of the
De Vera case, the underlying principle is the same in both cases: the sheep under his care, is guilty of qualified theft. (Viada: Vol. 3, p. 433, 4th
juridical possession of the thing appropriated did not pass to the ed.)
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 In the case of People v. Isaac,14 which involved a temporary driver of a
of the crime of theft is that the intent to misappropriate the property taken public service vehicle, this Court pronounced:
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. 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
We may agree that in cases such as the present the crime committed possession thereof, or title thereto, it is presumed that the possession of,
should not be regarded as theft unless the circumstances are such that it and title to, the thing so delivered remains in the owner; and the act of
must be presumed that the intent to convert or misappropriate the disposing thereof with intent of gain and without the consent of the owner
property existed at the time it was received by the perpetrator of the constitutes the crime of theft. This, we think, is actually the case here. For
crime. But the existence of such intent is, in our opinion, fully as apparent as we see it, appellant had only substituted for the regular driver of a
in this case as it was in the De Vera case; the defendant, according to her vehicle devoted to the transportation of passengers for a fare or
own statement, offered the ring for sale immediately after its delivery to compensation and therefore operated as a public utility; and while his
her, and we are forced to conclude that she did not receive it with honest arrangement with the owner was to turn in, not all the fare collected, but
intentions, but had the disposal of it in mind at the time. 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
In the case of People v. Locson13 which also deals with money of a bank in vehicle operator shall enter into any kind of contract with any person if by
the possession of its teller, the Court articulated: 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
Although the question is not specifically raised in the assignments of error, was not a lessee but only an employee or agent of the owner, so that his
the court has carefully considered the classification of the crime possession of the vehicle was only an extension of that of the latter. In
committed by the defendant and found it to be correctly classified by the other words, while he had physical or material possession of the jeepney,
trial court as qualified theft. The money was in the possession of the the juridical possession thereof remained in the owner. Under those
defendant as receiving teller of the bank, and the possession of the circumstances his disposing of the jeepney with intent of gain and without
defendant was the possession of the bank. When the defendant, with a the consent of its owner makes him guilty of theft.
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 Quoting from Ruling Case Law, this Court has also said in the same case:
apoderamiento contemplated in the definition of the crime of theft.

"A felonious taking is necessary in the crime of larceny, and generally


In the case of the United States vs. De Vera (43 Phil., 1000, 1003), Justice speaking, a taking which is done with the consent or acquiescence of the
Villamor speaking for the court said: 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 argument advanced in support of the contention of the defense is the possession avowedly for that purpose has the fraudulent intention to
that the goods misappropriated were not taken by the accused without make use of it as the means of converting it to his own use and does so
the consent of the owner who had delivered them to her voluntarily, and convert it, this is larceny, for in such case, the fraud supplies the place of
this element being lacking, it cannot be the crime of theft. the trespass in the taking, or, as otherwise stated, the subsequent
felonious conversion of the property by the alleged thief will relate back
"It is well to remember the essential elements of the crime of theft, as and make the taking and conversion larceny."
expounded in the textbooks, which are as follows: First, the taking of
personal property; second, that the property belongs to another; third, Under this theory, appellant, who, according to his own confession, took
that the taking away be done with intent of gain; fourth, that the taking the vehicle from its owner already with the intention of appropriating it,
away be done without the consent of the owner; and fifth, that the taking should also be deemed guilty of theft. (People vs. Trinidad, 50 Phil., 65.)
away be accomplished without violence or intimidation against persons
or force upon things. 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
"The commentators on the Spanish Penal Code, from which ours was considered deposits received by a teller in behalf of a bank as being only
adopted, lay great stress on the first element, which is the taking away, in the material possession of the teller. This interpretation applies with
that is, getting possession, laying hold of the thing, so that, as Viada says, equal force to money received by a bank teller at the beginning of a
if the thing is not taken away, but received and then appropriated or business day for the purpose of servicing withdrawals. Such is only
converted without the consent of the owner, it may be any other crime, material possession. Juridical possession remains with the bank. In line
Page 56 of 71
with the reasoning of the Court in the above-cited cases, beginning with is the one who prepared the said withdrawal slip. This particular
People v. De Vera, if the teller appropriates the money for personal gain transaction was turned over to him by the accused the previous day 20
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 This presumption is without basis in law. Under the rules of evidence,
possession due to the confidence reposed on the teller, the felony of there is a fixed number of presumptions. These are contained in Sections
qualified theft would be committed. 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
Second Issue 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
The elements of qualified theft include the elements of theft and any of the relied on is paragraph (j), Section 3 of Rule 131, which reads:
circumstances enumerated in Article 310 of the Revised Penal
Code16 (RPC). The elements of theft, which is defined in Artilce 308 of the That a person found in possession of a thing taken in the doing of a recent
RPC,17 are the following: 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
xxx there are five essential elements which constitute the crime of theft, owned by him;
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, In a long line of cases,21 this Court has always applied this presumption to
it be done without the owner's consent; and (5) finally, that it be a situation where property has been stolen and the stolen property is
accomplished without the use of violence or intimidation against persons, found in the possession of the accused. In these cases the possession of the
nor of force upon things.18 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
The specific qualifying circumstance in Article 310 of the RPC which the property found in the possession of the accused, which is the withdrawal
information indicated was that the felony was committed with grave slip, is not stolen property. Furthermore, the presumption the lower court
abuse of confidence. Hence, to warrant a conviction, the prosecution made was not that the petitioner stole anything, but rather that the
should have proven the following elements: 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
1. Taking of personal property. finding that the withdrawal slip was prepared by the petitioner.

2. That the said property belongs to another. Another piece of evidence offered to prove petitioner's taking is her
extrajudicial confession to de Lazo and Col. Dunilayan wherein she
3. That the said taking be done with intent to gain. 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
4. That it be done without the owner's consent. Col. Dunilayan. In the testimony of Rosalina de Lazo, all she mentioned
was that petitioner confessed to having taken sums of money from the
5. That it be accomplished without the use of violence or intimidation accounts of several depositors, including the account of Sgt. Salazar.
against persons, nor of force upon things. 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
6. That it be done with grave abuse of confidence. 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
Regarding the first element, the taking of personal property, the saw petitioner prepare the list of depositors from whose accounts she had
prosecution was not able to present direct evidence that petitioner took taken some money. Again, a perusal of the handwritten list allegedly
the P10,000 on November 16, 1989. The prosecution attempted to prove prepared by petitioner does not disclose any relation to the specific taking
the taking through circumstantial evidence. One of the pieces of evidence alleged in the information. All that was written on the list, among other
that the prosecution adduced and the trial court and Court of Appeals names and figures, was the name Salazar, Antonio and the number fifteen
relied on heavily for the conviction was the withdrawal slip for P10,000, (15) to the right of the name. It must be kept in mind that the information
dated November 16, 1989. Antonio Salazar disowned the signature on the was for a theft of P10,000 that occurred on the 16th of November 1989.
withdrawal slip. However, he also indicated that he did not know who The list does not mention the date on which the money was taken. Neither
made the withdrawal. Rosalina de Lazo testified that the initial on the does it disclose the precise amount that was taken.
withdrawal slip, written after the figure 11-17-89, was the customary
signature of petitioner. She, however, did not intimate the significance of
The other pieces of evidence such as the Teller's Daily Report and Abstract
petitioner's initial on the withdrawal slip. A careful inspection of all the
of Payment, to which witnesses de Lazo and Salazar both testified as
withdrawal slips,19 including the withdrawal slip stated above, shows that
containing the customary initials of petitioner, only corroborate the
the date and the initial of petitioner were written across the stamped word
withdrawal slip. They merely reveal that on the 16th of November 1989,
"paid." This indicates that petitioner's initial was placed in her capacity as
a withdrawal was made on the account of Sgt. Antonio Salazar and that
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 this withdrawal passed through the hands of petitioner in her capacity as
prepared the withdrawal slip or that the proceeds of the withdrawal a teller of the BABSLA. Again, they prove neither that petitioner prepared
increased her patrimony. 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


The trial court articulated and the Court of Appeals quoted in toto the
following: prove by direct or sufficient circumstantial evidence that there was a
taking of personal property by petitioner.

Since it was the accused who gave Reynaldo Manlulu the withdrawal slip
A discussion of the other elements of qualified theft mentioned above is
dated November 16, 1989 the presumption is that, being in possession of
not necessary. Even if the other elements were satisfactorily proven, the
said withdrawal slip before its delivery to Reynaldo Manlulu, the accused
first and most basic element of qualified theft was not established. The

Page 57 of 71
prosecution was, therefore, unsuccessful in proving beyond reasonable A: Yes, sir.
doubt that the petitioner committed the crime of qualified theft.
Q: Now, since you reported for work, what are your duties and
WHEREFORE, the petition is GRANTED and the decision and resolution of responsibilities as taxi driver of the taxi company?
the Court of Appeals dated December 28, 1998 and May 26, 1999,
respectively, are REVERSED and SET ASIDE. Petitioner, Asuncion Galang A: That we have to bring back the taxi at night with the boundary.
Roque, is ACQUITTED of the crime of qualified theft charged in the
information. No costs.
Q: How much is your boundary?
SO ORDERED.
A: ₱780.00, sir.
G. R. No. 148233 June 8, 2004
Q: On December 25, 1996, did you bring out any taxi?
PEOPLE OF THE PHILIPPINES, appellee,
vs. A: Yes, sir.
LUISITO D. BUSTINERA, appellant.
Q: Now, when ever (sic) you bring out a taxi, what procedure [do] you
DECISION follow with that company?

CARPIO MORALES, J.: A: That we have to bring back the taxi to the company and before we leave
we also sign something, sir.
From the decision1 of the Regional Trial Court, Branch 217, Quezon City
finding appellant Luisito D. Bustinera guilty beyond reasonable doubt of Q: What is that something you mentioned?
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 A: On the record book and on the daily trip ticket, sir.
this Court on appeal.
Q: You said that you have to return your taxi at the end of the day, what is
In an information3 dated June 17, 1997, appellant was indicted as follows: then the procedure reflect (sic) by your company when you return a taxi?

The undersigned accuses LUISITO D. BUSTINERA of the crime of Qualified A: To remit the boundary and to sign the record book and daily trip ticket.
Theft, committed as follows:
Q: So, when you return the taxi, you sign the record book?
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 A: Yes, sir.
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 Q: You mentioned that on December 25, 1996, you brought out a taxi?
then and there willfully, unlawfully and feloniously with intent to gain,
with grave abuse of confidence reposed upon him by his employer and A: Yes, sir.
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 Q: What kind of taxi?
damage and prejudice of the said offended party in the amount of
₱303,000.00. A: Daewoo taxi, sir.

CONTRARY TO LAW. Q: Now did you return the taxi on December 25, 1996?

Upon arraignment4 on March 27, 2000, appellant, assisted by counsel de A: I was not able to bring back the taxi because I was short of my boundary,
oficio, entered a plea of not guilty. Thereafter, trial on the merits ensued. sir.6

From the evidence for the prosecution, the following version is The following day, December 26, 1996, Cipriano went to appellant’s house
established. 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
Sometime in 1996, Edwin Cipriano (Cipriano), who manages ESC had not yet arrived.8 Leaving nothing to chance, Cipriano went to the
Transport, the taxicab business of his father, hired appellant as a taxi Commonwealth Avenue police station and reported that his taxi was
driver and assigned him to drive a Daewoo Racer with plate number PWH- missing.9
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 On January 9, 1997, appellant’s wife went to the garage of ESC Transport
remit the boundary fee in the amount of ₱780.00 per day. 5 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
On December 25, 1996, appellant admittedly reported for work and drove he recovered the taxi.11
the taxi, but he did not return it on the same day as he was supposed to.
Upon the other hand, while appellant does not deny that he did not return
Q: Now, Mr. Witness, on December 25, 1996, did you report for work? 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

Page 58 of 71
5, 1997;12and that on December 27, 1996, he gave the amount of When statutes are in pari materia28 or when they relate to the same
₱2,000.0013 to his wife whom he instructed to remit the same to Cipriano person or thing, or to the same class of persons or things, or cover the
as payment of the boundary fee14 and to tell the latter that he could not same specific or particular subject matter,29 or have the same purpose or
return the taxi as he still had a balance thereof.15 object,30 the rule dictates that they should be construed together
– interpretare et concordare leges legibus, est optimus interpretandi
Appellant, however, admits that his wife informed him that when she went modus.31 Every statute must be so construed and harmonized with other
to the garage to remit the boundary fee on the very same day (December statutes as to form a uniform system of jurisprudence, 32 as this Court
27, 1996),16 Cipriano was already demanding the return of the taxi.17 explained in City of Naga v. Agna,33 viz:

Appellant maintains though that he returned the taxi on January 5, 1997 . . . When statutes are in pari materia, the rule of statutory construction
and signed the record book,18 which was company procedure, to show dictates that they should be construed together. This is because
that he indeed returned it and gave his employer ₱2,500.0019 as partial enactments of the same legislature on the same subject matter are
payment for the boundary fee covering the period from December 25, supposed to form part of one uniform system; that later statutes are
1996 to January 5, 1997. 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
Continuing, appellant claims that as he still had a balance in the boundary reference thereto. Having thus in mind the previous statutes relating to
fee, he left his driver’s license with Cipriano;20 that as he could not drive, the same subject matter, whenever the legislature enacts a new law, it is
which was the only work he had ever known, without his driver’s license, deemed to have enacted the new provision in accordance with the
and with the obligation to pay the balance of the boundary fee still legislative policy embodied in those prior statutes unless there is an
lingering, his wife started working on February 18, 1997 as a stay-in maid express repeal of the old and they all should be construed together. In
for Cipriano, with a monthly salary of ₱1,300.00, 21 until March 26, 1997 construing them the old statutes relating to the same subject matter
when Cipriano told her that she had worked off the balance of his should be compared with the new provisions and if possible by
obligation;22 and that with his obligation extinguished, his driver’s license reasonable construction, both should be so construed that effect may
was returned to him.23 be given to every provision of each. However, when the new
provision and the old relating to the same subject cannot be
Brushing aside appellant’s claim that he returned the taxi on January 5, reconciled the former shall prevail as it is the latter expression of the
1997 and that he had in fact paid the total amount of ₱4,500.00, the trial legislative will . . .34(Emphasis and underscoring supplied; citations
court found him guilty beyond reasonable doubt of qualified theft by omitted)
Decision of May 17, 2001, the dispositive portion of which is quoted
verbatim: 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)
WHEREFORE, judgment is hereby rendered finding accused guilty beyond that said property belongs to another; (3) that the taking be done with
reasonable doubt as charged, and he is accordingly sentenced to suffer the intent to gain; (4) that the taking be done without the consent of the
penalty of Reclusion Perpetua and to pay the costs. owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things. 35
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 Theft is qualified when any of the following circumstances is present: (1)
showing that he agreed in writing to abide by the same disciplinary rules the theft is committed by a domestic servant; (2) the theft is committed
imposed upon convicted prisoners. 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
SO ORDERED.24 (Emphasis and italics in the original) 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
Hence, the present appeal anchored on the following assigned errors: calamity, vehicular accident or civil disturbance.36

I. 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
THE COURT A QUO GRAVELY ERRED IN CONCLUDING WITHOUT belonging to another without the latter's consent, or by means of violence
CONCRETE BASIS THAT THE ACCUSED-APPELLANT HAS INTENT TO against or intimidation of persons, or by using force upon things." The
GAIN WHEN HE FAILED TO RETURN THE TAXI TO ITS GARAGE. 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
II. upon things; and (3) the taking is done with intent to gain. 37

THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT Carnapping is essentially the robbery or theft of a motorized vehicle, 38 the
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED concept of unlawful taking in theft, robbery and carnapping being the
THEFT.25 same.39

It is settled that an appeal in a criminal proceeding throws the whole case In the 2000 case of People v. Tan40 where the accused took a Mitsubishi
open for review, and it becomes the duty of the appellate court to correct Gallant and in the later case of People v. Lobitania41 which involved the
such errors as may be found in the judgment even if they have not been taking of a Yamaha motorized tricycle, this Court held that the unlawful
specifically assigned.26 taking of motor vehicles is now covered by the anti-carnapping law and
not by the provisions on qualified theft or robbery.
Appellant was convicted of qualified theft under Article 310 of the Revised
Penal Code, as amended for the unlawful taking of a motor vehicle. There is no arguing that the anti-carnapping law is a special law,
However, Article 310 has been modified, with respect to certain different from the crime of robbery and theft included in the Revised
vehicles,27 by Republic Act No. 6539, as amended, otherwise known as "AN Penal Code. It particularly addresses the taking, with intent to gain, of a
ACT PREVENTING AND PENALIZING CARNAPPING." motor vehicle belonging to another without the latter's consent, or by
Page 59 of 71
means of violence against or intimidation of persons, or by using force ask your wife what was the answer of the company to that request of
upon things. But a careful comparison of this special law with the crimes yours?
of robbery and theft readily reveals their common features and
characteristics, to wit: unlawful taking, intent to gain, and that personal A: He did not allow me, sir, and he even [got] angry with me.
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 Q: So, when did you learn that the company was not agreeable to your
to have been carnapped when it has been taken, with intent to gain, making use of the taxicab without first returning it to the company?
without the owner's consent, whether the taking was done with or
without the use of force upon things. Without the anti-carnapping law, A: Before the new year, sir.
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; Q: When you said new year, you were referring to January 1, 1997?
citations omitted.)
A: Either December 29 or December 30, 1996, sir.
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 Q: So, are you telling us that even if you knew already that the company
vehicles such as roadrollers, trolleys, street-sweepers, sprinklers, lawn was not agreeable to your making use of the taxicab continually (sic)
mowers, amphibian trucks and cranes if not used on public highways, without returning the same to the company, you still went ahead and
vehicles which run only on rails and tracks, and tractors, trailers and make (sic) use of it and returned it only on January 5, 1997.
tractor engines of all kinds and used exclusively for agricultural purposes.
By implication, the theft or robbery of the foregoing vehicles would be A: Yes, sir.50 (Emphasis and underscoring supplied)
covered by Article 310 of the Revised Penal Code, as amended and the
provisions on robbery, respectively.43
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
From the foregoing, since appellant is being accused of the unlawful taking
that his reason for failing to return the taxi was his inability to remit the
of a Daewoo sedan, it is the anti-carnapping law and not the provisions of
boundary fee, his earnings that day not having permitted it; and that there
qualified theft which would apply as the said motor vehicle does not fall
was no intent to gain since the taking of the taxi was not permanent in
within the exceptions mentioned in the anti-carnapping law.
character, he having returned it.

The designation in the information of the offense committed by appellant Appellant’s position does not persuade.
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 Intent to gain or animus lucrandi is an internal act, presumed from the
indictment in designating the correct name of the offense is not a fatal unlawful taking of the motor vehicle.51 Actual gain is irrelevant as the
defect as it is not the designation that is controlling but the facts alleged in important consideration is the intent to gain.52 The term "gain" is not
the information which determines the real nature of the crime. 44 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
In the case at bar, the information alleges that appellant, with intent to owner’s consent constitutes gain.54
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. 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
Appellant’s appeal is thus bereft of merit.
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
That appellant brought out the taxi on December 25, 1996 and did not vehicle is later returned, there is theft, there being intent to gain as the
return it on the same day as he was supposed to is admitted. 47 use of the thing unlawfully taken constitutes gain:

Unlawful taking, or apoderamiento, is the taking of the motor vehicle Assuming, despite the totally inadequate evidence, that the taking
without the consent of the owner, or by means of violence against or was "temporary" and for a "joy ride", the Court sustains as the better
intimidation of persons, or by using force upon things; it is deemed view57 that which holds that when a person, either with the object of going
complete from the moment the offender gains possession of the thing, to a certain place, or learning how to drive, or enjoying a free ride, takes
even if he has no opportunity to dispose of the same. 48 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
While the nature of appellant’s possession of the taxi was initially lawful property belonging to another and using it, his intent to gain is evident
as he was hired as a taxi driver and was entrusted possession thereof, his since he derives therefrom utility, satisfaction, enjoyment and
act of not returning it to its owner, which is contrary to company practice pleasure. Justice Ramon C. Aquino cites in his work Groizard who
and against the owner’s consent transformed the character of the holds that the use of a thing constitutes gain and Cuello Calon who
possession into an unlawful one.49 Appellant himself admits that he was calls it "hurt de uso."58 (Emphasis and underscoring supplied; citation
aware that his possession of the taxi was no longer with Cipriano’s consent omitted)
as the latter was already demanding its return.
Besides, the trial court did not believe appellant’s claim that he in fact
Q: Also you said that during your direct testimony that when you gave returned the taxi on January 5, 1997.
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 The Court can not (sic) believe accused’s assertion that he returned the
short of the boundary. Alright, after telling that to your wife and after subject vehicle on January 5, 1997 to the garage and that he had in fact
seeing your wife between December 27, 1996 and January 5, 1997, did you 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
Page 60 of 71
amount he allegedly paid the taxicab owner. On direct-examination, he cannot be invoked when there is a legal impossibility of application, either
claimed that he paid Edwin Cipriano on December 27, 1996 the amount of by express provision or by necessary implication. 64
₱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 Moreover, when the penalties under the special law are different from and
date for payment to the taxicab owner.59 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
The rule is well-entrenched that findings of fact of the trial court are penalties under the said Code or by other relevant statutory provisions
accorded the highest degree of respect and will not be disturbed on appeal are based on or applicable only to said rules for felonies under the Code. 65
absent any clear showing that the trial court had overlooked,
misunderstood or misapplied some facts or circumstances of weight and Thus, in People v. Panida66 which involved the crime of carnapping and the
significance which, if considered, would alter the result of the case.60 The penalty imposed was the indeterminate sentence of 14 years and 8
reason for the rule being that trial courts have the distinct advantage of months, as minimum, to 17 years and 4 months, as maximum, this Court
having heard the witnesses themselves and observed their deportment did not apply the provisions of the Revised Penal Code suppletorily as the
and manner of testifying or their conduct and behavior during the trial. 61 anti-carnapping law provides for its own penalties which are distinct and
without reference to the said Code.
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, The charge being simple carnapping, the imposable penalty is
1997. 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
Q: You said that you returned the taxi on January 5, 1997, correct? for the application of penalties under the Revised Penal Code or by
other relevant statutory provisions based on, or applicable only to,
A: Yes, sir. 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
Q: Now, Mr. Witness, did you sign any record when you returned the taxi? temporal, such technical term under the Revised Penal Code is not
given to that penalty for carnapping. Besides, the other penalties for
A: Yes, sir. 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
Q: Do you have any copy of that record? 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
A: They were the one (sic) in-charge of the record book and I even indeterminate sentence of 14 years and 8 months, as minimum, to 17
voluntarily left my driver’s license with them, sir. years and 4 months, as maximum.67(Emphasis and underscoring supplied;
citations omitted)
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 Appellant being then culpable for carnapping under the first clause of
returned the taxi? 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
A: I gave them [an] additional ₱2,500.00, sir. 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
Q: At the time when you returned the taxi, how much was your short appreciated.
indebtedness (sic) or short boundary (sic)?
Applying Section 1 of Act No. 4103,69 as amended, otherwise known as the
A: I was short for ten (10) days, and I was able to pay ₱4,500.00. Indeterminate Sentence Law, if the offense is punishable by a special law,
the court shall sentence the accused to an indeterminate sentence, the
Q: Do you have any receipt to show receipt of payment for this maximum term of which shall not exceed the maximum fixed by said law
₱4,500.00? and the minimum term shall not be less than the minimum prescribed by
the same – the penalty imposed being a range.70
A: They were the ones having the record of my payment, and our
agreement was that I have to pay the balance in WHEREFORE, the judgment of the Regional Trial Court of Quezon City,
installment.62 (Emphasis supplied) 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,
While appellant maintains that he signed on January 5, 1997 the record finding him guilty beyond reasonable doubt of the crime of carnapping
book indicating that he returned the taxi on the said date and paid under Republic Act No. 6539, as amended and sentencing him to an
Cipriano the amount of ₱4,500.00 as partial payment for the boundary fee, indeterminate penalty of Fourteen (14) Years and Eight (8) Months, as
appellant did not produce the documentary evidence alluded to, to minimum, to Seventeen (17) Years and Four (4) Months, as maximum.
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 SO ORDERED.
evidence on his behalf.63
ANTI-FENCING LAW
The trial court having convicted appellant of qualified theft instead of
carnapping, it erred in the imposition of the penalty. While the G.R. No. 190475 April 10, 2013
information alleges that the crime was attended with grave abuse of
confidence, the same cannot be appreciated as the suppletory effect of the
JAIME ONG y ONG, Petitioner,
Revised Penal Code to special laws, as provided in Article 10 of said Code,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
Page 61 of 71
DECISION Pending the police investigation, private complainant canvassed from
numerous business establishments in an attempt to locate the stolen tires.
SERENO, CJ.: 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
Before the Court is an appeal from the Decision 1 dated 18 August 2009 of T494 1100 by 20 by 14 ply Firestone tires, to which the latter replied in
the Court of Appeals (CA), which affirmed the Decision2 dated 06 January the affirmative. Appellant brought out a tire fitting the description, which
2006 of the Regional Trial Court (RTC), Branch 37, Manila. The RTC had private complainant recognized as one of the tires stolen from his
convicted accused Jaime Ong y Ong (Ong) of the crime of violation of warehouse, based on the chalk marking and the serial number thereon.
Presidential Decree No. (P.O.) 1612, otherwise known as. the Anti-Fencing Private complainant asked appellant if he had any more of such tires in
Law. stock, which was again answered in the affirmative. Private complainant
then left the store and reported the matter to Chief Inspector Mariano
Ong was charged in an Information3 dated 25 May 1995 as follows: Fegarido of the Southern Police District.

That on or about February 17, 1995, in the City of Manila, Philippines. the On February 27, 1995, the Southern Police District formed a team to
said accused, with intent of gain for himself or for another. did then and conduct a buy-bust operation on appellant's store in Paco, Manila. The
there willfully, unlawfully and feloniously receive and acquire from team was composed of six (6) members, led by SPO3 Oscar Guerrero and
unknown person involving thirteen (13) truck tires worth ₱65, 975.00, supervised by Senior Inspector Noel Tan. Private complainant's
belonging to FRANCISCO AZAJAR Y LEE, and thereafter selling One (1) companion Tito Atienza was appointed as the poseur-buyer.
truck tire knowing the same to have been derived from the crime of
robbery. 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,
CONTRARY TO LAW. 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
Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits T494 1100 by 20 by 14 Firestone truck tires available. The latter
ensued, and the RTC found him guilty beyond reasonable doubt of immediately produced one tire from his display, which Atienza bought for
violation of P.D. 1612. The dispositive portion of its Decision reads: ₱5,000.00. Atienza asked appellant if he had any more in stock.

WHEREFORE, premises considered, this Court finds that the prosecution Appellant then instructed his helpers to bring out twelve (12) more tires
has established the guilt of the accused JAIME ONG y ONG beyond from his warehouse, which was located beside his store. After the twelve
reasonable doubt for violation of Presidential Decree No. 1612 also known (12) truck tires were brought in, private complainant entered the store,
as Anti-Fencing Law and is hereby sentenced to suffer the penalty of inspected them and found that they were the same tires which were stolen
imprisonment of 10 years and 1 day to 16 years with accessory penalty of from him, based on their serial numbers. Private complainant then gave
temporary disqualification. the prearranged signal to the buy-bust team confirming that the tires in
appellant's shop were the same tires stolen from the warehouse.
SO ORDERED.4
After seeing private complainant give the pre-arranged signal, the buy-
Dissatisfied with the judgment, Ong appealed to the CA. After a review of bust team went inside appellant's store. However, appellant insisted that
the records, the RTC’s finding of guilt was affirmed by the appellate court his arrest and the confiscation of the stolen truck tires be witnessed by
in a Decision dated 18 August 2009. representatives from the barangay and his own lawyer. Resultantly, it was
already past 10:00 in the evening when appellant, together with the tires,
Ong then filed the instant appeal before this Court. 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
The Facts confirmed by private complainant as stolen from his warehouse.5

The version of the prosecution, which was supported by the CA, is as For his part, accused Ong solely testified in his defense, alleging that he
follows: 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
Private complainant was the owner of forty-four (44) Firestone truck stolen tires in Jong Marketing. He further averred that on 18 February
tires, described as T494 1100 by 20 by 14. He acquired the same for the 1995, a certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck
total amount of ₱223,401.81 from Philtread Tire and Rubber Corporation, tires allegedly from Dagat-dagatan, Caloocan City, for ₱3,500 each. Ong
a domestic corporation engaged in the manufacturing and marketing of bought all the tires for ₱45,500, for which he was issued a Sales Invoice
Firestone tires. Private complainant's acquisition was evidenced by Sales dated 18 February 1995 and with the letterhead Gold Link Hardware &
Invoice No. 4565 dated November 10, 1994 and an Inventory List General Merchandise (Gold Link).6
acknowledging receipt of the tires specifically described by their serial
numbers. Private complainant marked the tires using a piece of chalk Ong displayed one (1) of the tires in his store and kept all the twelve (12)
before storing them inside the warehouse in 720 San Jose St., corner Sta. others in his bodega. The poseur-buyer bought the displayed tire in his
Catalina St., Barangay San Antonio Valley 1, Sucat, Parañaque, owned by store and came back to ask for more tires. Ten minutes later, policemen
his relative Teody Guano. Jose Cabal, Guano's caretaker of the warehouse, went inside the store, confiscated the tires, arrested Ong and told him that
was in charge of the tires. After appellant sold six (6) tires sometime in those items were stolen tires.7
January 1995, thirty-eight (38) tires remained inside the warehouse.
The RTC found that the prosecution had sufficiently established that all
On February 17, 1995, private complainant learned from caretaker Jose thirteen (13) tires found in the possession of Ong constituted a prima facie
Cabal that all thirty-eight (38) truck tires were stolen from the warehouse, evidence of fencing. Having failed to overcome the presumption by mere
the gate of which was forcibly opened. Private complainant, together with denials, he was found guilty beyond reasonable doubt of violation of P.D.
caretaker Cabal, reported the robbery to the Southern Police District at 1612.8
Fort Bonifacio.
Page 62 of 71
On appeal, the CA affirmed the RTC’s findings with modification by Circumstances normally exist to forewarn, for instance, a reasonably
reducing the minimum penalty from ten (10) years and one (1) day to six vigilant buyer that the object of the sale may have been derived from the
(6) years of prision correcional.9 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
OUR RULING 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
The Petition has no merit. 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
Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person anything of value which has been the subject of robbery or thievery shall
who, with intent to gain for himself or for another, shall buy, receive, be prima facie evidence of fencing" — a presumption that is, according to
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or the Court, "reasonable for no other natural or logical inference can arise
in any manner deal in any article, item, object or anything of value which from the established fact of . . . possession of the proceeds of the crime of
he knows, or should be known to him, to have been derived from the robbery or theft." xxx.22
proceeds of the crime of robbery or theft."
Moreover, Ong knew the requirement of the law in selling second hand
The essential elements of the crime of fencing are as follows: (1) a crime tires.1âwphi1 Section 6 of P.D. 1612 requires stores, establishments or
of robbery or theft has been committed; (2) the accused, who is not a entities dealing in the buying and selling of any good, article, item, object
principal or on accomplice in the commission of the crime of robbery or or anything else of value obtained from an unlicensed dealer or supplier
theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, thereof to secure the necessary clearance or permit from the station
or buys and sells, or in any manner deals in any article, item, object or commander of the Integrated National Police in the town or city where
anything of value, which has been derived from the proceeds of the crime that store, establishment or entity is located before offering the item for
of robbery or theft; (3) the accused knew or should have known that the sale to the public. In fact, Ong has practiced the procedure of obtaining
said article, item, object or anything of value has been derived from the clearances from the police station for some used tires he wanted to resell
proceeds of the crime of robbery or theft; and (4) there is, on the part of but, in this particular transaction, he was remiss in his duty as a diligent
one accused, intent to gain for oneself or for another.10 businessman who should have exercised prudence.

We agree with the RTC and the CA that the prosecution has met the In his defense, Ong argued that he relied on the receipt issued to him by
requisite quantum of evidence in proving that all the elements of fencing Go.1âwphi1 Logically, and for all practical purposes, the issuance of a sales
are present in this case. 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
First, the owner of the tires, private complainant Francisco Azajar prosecution was able to prove that Gold Link and its address were
(Azajar), whose testimony was corroborated by Jose Cabal - the caretaker fictitious.24Ong failed to overcome the evidence presented by the
of the warehouse where the thirty-eight (38) tires were stolen – testified prosecution and to prove the legitimacy of the transaction. Thus, he was
that the crime of robbery had been committed on 17 February 1995. unable to rebut the prima facie presumption under Section 5 of P.D. 1612.
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 Finally, there was evident intent to gain for himself, considering that
by their Sinumpaang Salaysay13 taken at the Southern Police District at during the buy-bust operation, Ong was actually caught selling the stolen
Fort Bonifacio.14 The report led to the conduct of a buy-bust operation at tires in his store, Jong Marketing.
Jong Markerting, Paco, Manila on 27 February 1995.
Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie
Second, although there was no evidence to link Ong as the perpetrator of presumption of fencing from evidence of possession by the accused of any
the robbery, he never denied the fact that thirteen (13) tires of Azajar good, article, item, object or anything of value, which has been the subject
were caught in his possession. The facts do not establish that Ong was of robbery or theft; and prescribes a higher penalty based on the value of
neither a principal nor an accomplice in the crime of robbery, but thirteen the 25 property.
(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 The RTC and the CA correctly computed the imposable penalty based on
those found in Ong’s possession.15 Ong likewise admitted that he bought ₱5,075 for each tire recovered, or in the total amount of ₱65,975. Records
the said tires from Go of Gold Link in the total amount of ₱45,500 where show that Azajar had purchased forty-four (44) tires from Philtread in the
he was issued Sales Invoice No. 980.16 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
Third, the accused knew or should have known that the said article, item, transactions have been fair and regular. Thus, the presumption of
object or anything of value has been derived from the proceeds of the regularity in the ordinary course of business is not overturned in the
crime of robbery or theft. The words "should know" denote the fact that a absence of the evidence challenging the regularity of the transaction
person of reasonable prudence and intelligence would ascertain the fact between Azajar ,and Phil tread.
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 In tine, after a careful perusal of the records and the evidence adduced by
and sell of tires for the past twenty-four (24) years,18 ought to have known the parties, we do not find sufficient basis to reverse the ruling of the CA
the ordinary course of business in purchasing from an unknown seller. affirming the trial court's conviction of Ong for violation of P.D. 1612 and
Admittedly, Go approached Ong and offered to sell the thirteen (13) tires modifying the minimum penalty imposed by reducing it to six ( 6) years of
and he did not even ask for proof of ownership of the tires.19 The entire prision correccional.
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 WHEREFORE, premises considered, the Petition is DENIED for lack of
his first time to transact with Go and the manner it was sold is as if Go was merit. Accordingly, the assailed Decision of the Court of Appeals in CA-G.R.
just peddling the thirteen (13) tires in the streets. CR No. 30213 is hereby AFFIRMED.

In Dela Torre v. COMELEC,21 this Court had enunciated that: SO ORDERED.

Page 63 of 71
G.R. No. 146584 July 12, 2004 compound. They hired Pacita Linghon, Macario’s sister, as one of their
household helpers us sometime in February 1989.5 Pacita swept and
ERNESTO FRANCISCO y SPENOCILLA, petitioner, cleaned the room periodically. Sometime in May 1991, she left the employ
vs. of the Rodriguez family.
PEOPLE OF THE PHILIPPINES, respondent.
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
DECISION 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
CALLEJO, SR., J.:
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
This is an appeal via a petition for review on certiorari of the Decision 1 of offered to sell to Ernesto the pair of earrings for P18,000. The latter agreed
the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision2 of the and paid Macario the amount. Ernesto gave a P200 tip to Macario. After
Regional Trial Court of Malolos, Bulacan, Branch 22, finding petitioner these transactions, Macario saw the petitioner in his shop for about five to
Ernesto Francisco guilty of violating Presidential Decree No. 1612, six more times and received some amounts. 11
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 Sometime in November 1991, Jovita was asked to be a principal sponsor
maximum, with the accessory penalties corresponding to the latter, and to at a wedding. She was shocked when she opened the locked cabinet
pay the corresponding value of the subject pieces of jewelry. 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;
The Indictment 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
The petitioner was charged of violating P.D. No. 1612 under the stone worth P5,000. She suspected that it was Pacita who stole her
Information filed on June 23, 1993, the accusatory portion of which reads: jewelry. She was, however, occupied with her business ventures that she
had little time to gather evidence and charge Pacita.
That in or about the month of November 1991, in the municipality of
Meycauayan, Province of Bulacan, Philippines, and within the jurisdiction On August 19, 1992, Jovita filed a complaint for theft against Pacita and
of this Honorable Court, the said accused Ernesto Francisco y Spenocilla, her mother Adoracion Linghon with the Counter-Intelligence Group of the
with intent to gain for himself, did then and there wil[l]fully, unlawfully Philippine National Police in Camp Crame, Quezon City. She stated that she
and feloniously buy, receive, possess and acquire from one Pacita Linghon owned several jewels, viz: one (1) heart-shaped pair of earrings with
y Liza, not the owner, several pieces of jewelry, to wit: 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
One (1) pair of earrings (Heart Shape) --- 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.
One (1) White Gold Bracelet ---- 150,000.00
A team of police investigators, including PO1 Santiago Roldan, Jr. of the
One (1) Diamond Ring ---- 100,000.00
Counter-Intelligence Group, invited Pacita and Adoracion to Camp Crame,
Quezon City, for investigation in connection with Jovita’s complaint. Pacita
One (1) Ring with Diamond ----
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.,
with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, admitting that she sold one pair of heart-shaped earrings with diamond,
which he knows, or should be known to him, to have been derived from one white gold bracelet, one heart-shaped diamond ring, and one ring
the proceeds of the crime of robbery or theft. "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
Contrary to law.3 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."
The petitioner was arraigned, with the assistance of counsel, and entered
a plea of not guilty. Trial forthwith ensued. 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 Case for the Prosecution
the jewelry from her. The policemen alighted from their vehicle and
invited the petitioner for questioning in Camp Crame. Upon his insistence,
Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, the petitioner was brought to the police station of Meycauayan, Bulacan.
Rizal.4 She was engaged in business as a general contractor under the When they were at the police station, the petitioner, in the presence of
business name J.C. Rodriguez Contractors. Macario Linghon was one of her SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe, for
workers. She and her husband, the former Municipal Mayor of Rodriguez, them not to implicate him in the case. PO1 Roldan, Jr. rejected the
Rizal, acquired several pieces of jewelry which were placed inside a locked offer.12 They again invited the petitioner to go with them to Camp Crame,
cabinet in a locked room in their main house. Jovita hid the key to the but the petitioner refused and demanded that the policemen first secure a
cabinet inside the room. The couple and their son resided inside a warrant for his arrest should they insist on taking him with them. 13

Page 64 of 71
Nevertheless, Pacita was charged with qualified theft in the Regional Trial investigation.20 He saw Pacita again only during the preliminary
Court of San Mateo, Rizal, Branch 76.14The case was docketed as Criminal investigation of the case.21 The petitioner also averred that he had no
Case No. 2005. Adoracion was also charged with violating P.D. No. 1612 transaction with Macario of whatever nature.22
(Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were
consolidated and jointly tried. The petitioner further testified that when the policemen in civilian clothes
approached him in his shop, they asked who "Mang Erning" was, as the
Meanwhile, Jovita succeeded in convincing Macario to testify against the sign in his shop carried such name. When he responded to the question,
petitioner, assuring him that he would not be prosecuted for violation of the policemen identified themselves as members of the police force. The
P.D. No. 1612. Macario agreed to testify against the petitioner. petitioner then gave them his full name.23When the policemen invited him
for questioning, he refused at first. Eventually, he agreed to be
PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their interrogated at the municipal hall, where the policemen insisted on
investigation. 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 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 On November 29, 1995, the court rendered judgment finding the
petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial petitioner guilty beyond reasonable doubt of violating P.D. No. 1612. The
Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. decretal portion of the decision reads:
During the preliminary investigation, Pacita and Macario testified that
they sold a set of earrings, bracelet and two rings to the petitioner WHEREFORE, in view of the foregoing, judgment is hereby rendered as
for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she follows:
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 1. Finding the accused GUILTY beyond reasonable doubt of the violation
probable cause against the petitioner, and issued a warrant for his arrest. 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
On June 23, 1993, an Information was filed by the Provincial Prosecutor minimum, to 20 years of reclusion temporal maximum, as maximum, with
with the RTC charging the petitioner with violating P.D. No. 1612. the accessory penalties corresponding to the latter.

In the meantime, on August 20, 1993, judgment was rendered by the RTC 2. Ordering the accused to pay to private complainant Jovita Rodriguez the
of San Mateo, Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005, corresponding value of the subject items of jewelries (sic):
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: one (1) pair of earrings, heart shaped P400,000.00

WHEREFORE, premises considered, judgment is hereby rendered in these one (1) white gold bracelet 150,000.00
cases, as follows:
one (1) diamond ring 100,000.00
1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY
one (1) ring with diamond 5,000.00
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
TOTAL VALUE P655,000.00
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
with 6% interest on all amounts due from the filing of the information on
return to complainant Jovita Rodriguez the unrecovered stolen pieces of
June 23, 1993 until said amounts have been fully paid.
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.
SO ORDERED.26
2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza
GUILTY beyond reasonable doubt of the offense of violation of PD 1612, The petitioner appealed the decision to the Court of Appeals contending
otherwise known as the Anti-Fencing Law, and sentencing her to suffer that:
imprisonment of Twelve (12) years of prision mayor; to indemnify
complainant Jovita Rodriguez in the amount of P45,000.00; and to pay the I
costs.

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF


SO ORDERED.17 PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.

The Case for the Petitioner II

The petitioner testified that he was a resident of Calvario, Meycauayan, THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION
Bulacan. He had a shop located at Pacheco Street, Calvario, Meycauayan, EVIDENCE WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-
Bulacan, where he bought and sold jewelry. He had been in this business APPELLANT BEYOND REASONABLE DOUBT.
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, III
Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he
first saw her when she accompanied some policemen in civilian clothes to THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING
his shop, where he was thereafter invited to Camp Crame for TESTIMONY (sic) OF PROSECUTION WITNESSES.

Page 65 of 71
IV 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
THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A of robbery or theft; (3) the accused knew or should have shown that the
PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-APPELLANT’S said article, item, object or anything of value has been derived from the
OFFER OF BRIBE WITHOUT SHOW OF MONEY. 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
V 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,
THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED- and prescribes a higher penalty based on the value of the property.33 The
APPELLANT.27 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.
On December 29, 2000, the CA rendered judgment affirming the decision
of the RTC.28
We agree with the trial and appellate courts that the prosecution
mustered the requisite quantum of evidence, on the basis of the testimony
The Present Petition 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
In the present recourse, petitioner Ernesto Francisco asserts that: the jewelry and the loss thereof, and narrated that Pacita had access to the
cabinet containing the pieces of jewelry.
The Court of Appeals erred in sustaining the trial court’s decision finding
petitioner guilty beyond reasonable doubt of violation of the (sic) We, however, agree with the petitioner that the decision of the RTC of
Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law. 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.
The Court of Appeals erred in relying on the conflicting testimonies of
prosecution witnesses, all of which consisted of hearsay evidence. 29 2005 was already final and executory when the trial court rendered its
decision in the instant case.

The petitioner asserts that the prosecution failed to prove his guilt for the
On the second element of the crime, the trial and appellate courts held that
crime charged beyond reasonable doubt. He avers that the prosecution
the prosecution proved the same beyond reasonable doubt based on the
failed to prove that Pacita stole the jewelry subject of the charge, and that
testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005;
Macario sold the said pieces of jewelry to him. He, likewise, posits that the
that Pacita had confessed to Jovita that she sold some of the jewelry to the
prosecution failed to present Pacita as its witness to prove that she stole
petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their
the pieces of jewelry and sold the same to him, and to adduce in evidence
investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr.
the jewelry allegedly sold to him. He contends that the testimonies of
relating to said investigation; the RTC decision in Criminal Cases Nos.
Macario and PO1 Roldan, Jr., on his investigation of Jovita’s complaint for
1992 and 2005; the testimonies of Pacita and her brother Macario during
theft, are hearsay evidence. The appellant argues that assuming that
the preliminary investigation of Criminal Case No. 92-13841 before the
Macario sold the subject jewelry to him, Macario had no personal
MTC of Meycauayan as shown by the transcripts of the stenographic notes
knowledge that the same belonged to Jovita. The petitioner avers that the
taken during the proceedings; the supplemental sworn statement of
testimony of Macario, the principal witness of the prosecution, is
inconsistent on substantial matters; hence, should not be given credence Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony
and probative weight. of Macario before the trial court.

However, we find and so hold that –


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 First. Jovita’s testimony in Criminal Cases Nos. 1992 and 2005, that Pacita
theft in Criminal Case No. 2005; the second element was shown to exist had confessed to her that she had sold four pieces of jewelry to the
with moral certainty via the testimony of Macario identifying the petitioner, is inadmissible in evidence against the latter to prove the truth
petitioner as the one who bought the subject pieces of jewelry, of the said admission. It bears stressing that the petitioner was not a party
corroborated by the testimony of PO1 Roldan, Jr.; and, the third element in the said criminal cases. The well-entrenched rule is that only parties to a
was proven by evidence showing that the petitioner had been in the case are bound by a judgment of the trial court. Strangers to a case are not
business of buying and selling jewelry for a long period of time, and that bound by the judgment of said case.34 Jovita did not reiterate her testimony
he had the expertise to know the correct market price of the jewelry he in the said criminal cases during the trial in the court a quo. The
purchased from Macario and Pacita. The OSG asserts that the petitioner prosecution did not present Pacita as witness therein to testify on the
must have been put on his guard when the subject pieces of jewelry admission she purportedly made to Jovita; hence, the petitioner was not
worth P655,000 were sold to him for only P50,000.30 It contends that the able to cross-examine Pacita. The rule is that the acts or declarations of a
inconsistencies in the testimonies of the prosecution witnesses referred person are not admissible in evidence against a third party. 35
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 Second. The testimony of Pacita during the preliminary investigation in
respect and credit.31 Criminal Case No. 92-13841, as well as her supplemental affidavit, is,
likewise, inadmissible against the petitioner since Pacita did not testify in
The Ruling of the Court the court a quo. The petitioner was, thus, deprived of his constitutional
right to confront and cross-examine a witness against him.
The petition is meritorious.
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 essential elements of the crime of fencing are as follows: (1) a crime
the person who bought the subject jewelry from her, is indeed admissible
of robbery or theft has been committed; (2) the accused, who is not a
in evidence against the petitioner. It is, likewise, corroborative of the
principal or accomplice in the commission of the crime of robbery or theft,
testimony of Macario. However, such testimony is admissible only to
buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or
prove such fact - that Pacita pointed to the petitioner as the person to
Page 66 of 71
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 can only take judicial notice of the value of goods which are matters of
known which pieces of jewelry were stolen, considering that Macario was public knowledge or are capable of unquestionable demonstration. The
selling the same for P50,000 when the said pieces stolen from Jovita were value of jewelry is not a matter of public knowledge nor is it capable of
alleged to be worth P655,000. This is so because the prosecution failed to unquestionable demonstration and in the absence of receipts or any other
adduce sufficient competent evidence to prove the value of the said stolen competent evidence besides the self-serving valuation made by the
articles. The prosecution relied solely on the bare and uncorroborated prosecution, we cannot award the reparation for the stolen jewelry.45
testimony of Jovita, that they were worth P655,000:
It bears stressing that, in the absence of direct evidence that the accused
Atty. Lerio had knowledge that the jewelry was stolen, the prosecution is burdened
to prove facts and circumstances from which it can be concluded that the
Q Now, will you tell this Court some of those jewels which you own? 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
A I own several jewels and the one (sic) in question are: 1-pair of earrings, determine the imposable penalty for the crime, since the penalty depends
diamond heart-shaped P400,000.00; 1-ring, heart-shaped diamond on the value of the property; otherwise, the court will fix the value of the
worth P100,000.00; 1-bracelet, white gold full of stones, diamond property at P5.00, conformably to our ruling in People v. Dator:46
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
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
When asked by the trial court to declare the present market value of the attendant circumstances of the case. More pertinently, in the case
stolen jewelry, Jovita merely declared: 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
Atty. Lerio 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
Q Now again, when did you acquire those jewels if you can still remember?

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The


A I remember several years ago when my husband is (sic) alive. 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
Court 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.
Q Please tell the court, [is] the market value of the jewels the same today?

SO ORDERED.
A No, that is (sic) the market value several years ago.

G.R. No. 134298 August 26, 1999


Q So, can you explain [if] the market value, more or less, [is] the same
today?
RAMON C. TAN, petitioner,
A No. The price, if we will appraise now, is much bigger.41 vs.
PEOPLE OF THE PHILIPPINES, respondent.

When required by the petitioner, through counsel, to bring to the court


PARDO, J.:
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:
The case before the Court is an appeal via certiorari from a decision of the
Court Court of Appeals * affirming that of the Regional Trial Court of Manila,
Branch 19, ** convicting petitioner of the crime of fencing.

Q You bought it from [a] private person?


Complainant Rosita Lim is the proprietor of Bueno Metal Industries,
located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business
A Yes, Your Honor. of manufacturing propellers or spare parts for boats. Manuelito Mendez
was one of the employees working for her. Sometime in February 1991,
Atty. Bernal 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.
Q What then is your proof that you bought these jewelries (sic) from a She conducted an inventory and discovered that propellers and stocks
private person? valued at P48,000.00, more or less, were missing. Complainant Rosita Lim
informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently,
Atty. Lerio 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
That was already answered, Your Honor. She said, no receipt. 42
and brass screws. Manuelito Mendez asked the complainant's forgiveness.
He pointed to petitioner Ramon C. Tan as the one who bought the stolen
In People v. Paraiso,43 we cited our ruling in People v. Marcos44 that an items and who paid the amount of P13,000.00, in cash to Mendez and
ordinary witness cannot establish the value of jewelry, nor may the courts Dayop, and they split the amount with one another. Complainant did not
take judicial notice of the value of the same: file a case against Manuelito Mendez and Gaudencio Dayop.

…[A]nd as we have ruled in the case of People vs. Antonio Marcos, an On relation of complainant Lim, an Assistant City Prosecutor of Manila
ordinary witness cannot establish the value of jewelry and the trial court filed with the Regional Trial Court, Manila, Branch 19, an information
Page 68 of 71
against petitioner charging him with violation of Presidential Decree No. pier after which they proceeded to the house of his auntie. Mr. Mendez
1612 (Anti-Fencing Law) committed as follows: 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
That on or about the last week of February 1991, in the City of Manila, he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied
Philippines, the said accused, did then and there wilfully, unlawfully and the same.
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, when called to testify as a hostile witness, narrated that she
Rosita Lim, which he knew or should have known to have been derived owns Bueno Metal Industries located at 301 Jose Abad Santos Street,
from the proceeds of the crime of theft. Tondo, Manila. That two (2) days after Manuelito Mendez and Gaudencio
Dayop left, her husband, William Tan, conducted an inventory and
Contrary to law. 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.
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 MANUELITO MENDEZ, likewise, when called to testify as a hostile witness,
Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez. 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
On the other hand, the defense presented Rosita Lim and Manuelito in connection with this case, he executed an affidavit on April 12, 1991,
Mendez as hostile witnesses and petitioner himself. The testimonies of the prepared by a certain Atty. Perlas, a CIS personnel, and the contents
witnesses were summarized by the trial court in its decision, as follows: thereof were explained to him by Rosita Lim before he signed the same
before Atty. Jose Tayo, a Notary Public, at Magnolia House, Carriedo,
ROSITA LIM stated that she is the owner of Bueno Metal Industries, Manila (Exhibits C and C-1).
engaged in the business of manufacturing propellers, bushings, welding
rods, among others (Exhibits A, A-1, and B). That sometime in February That usually, it was the secretary of Mr. Tan who accepted the items
1991, after one of her employees left the company, she discovered that delivered to Ramon Hardware. Further, he stated that the stolen items
some of the manufactured spare parts were missing, so that on February from the warehouse were placed in a sack and he talked to Mr. Tan first
19, 1991, an inventory was conducted and it was found that some welding over the phone before he delivered the spare parts. It was Mr. Tan himself
rods and propellers, among others, worth P48,000.00 were missing. who accepted the stolen items in the morning at about 7:00 to 8:00 o'clock
Thereafter, she went to Victor Sy, the person who recommended Mr. and paid P13,000.00 for them.
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 RAMON TAN, the accused, in exculpation, stated that he is a businessman
having bought the same.1âwphi1.nêt engaged in selling hardware (marine spare parts) at 944 Espeleta Street,
Sta. Cruz, Manila.

When presented on rebuttal, she stated that some of their stocks were
bought under the name of Asia Pacific, the guarantor of their Industrial He denied having bought the stolen spare parts worth P48,000.00 for he
Welding Corporation, and stated further that whether the stocks are never talked nor met Manuelito Mendez, the confessed thief. That further
bought under the name of the said corporation or under the name of the two (2) receipts presented by Mrs. Lim are not under her name and
William Tan, her husband, all of these items were actually delivered to the the other two (2) are under the name of William Tan, the husband, all in
store at 3012-3014 Jose Abad Santos Street and all paid by her husband. all amounting to P18,000.00. Besides, the incident was not reported to the
police (Exhibits 1 to 1-g).

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 He likewise denied having talked to Manuelito Mendez over the phone on
propellers while they likewise bought from the former brass woods, and the day of the delivery of the stolen items and could not have accepted the
that there is no reason whatsoever why she has to frame up Mr. Tan. 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
MANUELITO MENDEZ stated that he worked as helper at Bueno Metal reported to his office at 9:00 o'clock. In connection with this case, he
Industries from November 1990 up to February 1991. That sometime in executed a counter-affidavit (Exhibits 2 and 2-a).1
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 On August 5, 1996, the trial court rendered decision, the dispositive
delivered said stolen items to Ramon Tan, who paid for them in cash in the portion of which reads:
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 WHEREFORE, premises considered, the accused RAMON C. TAN is hereby
from his uncle, Victor Sy, he decided to return to Manila. He was then found guilty beyond reasonable doubt of violating the Anti-Fencing Law
accompanied by his uncle to see Mrs. Lim, from whom he begged for of 1979, otherwise known as Presidential Decree No. 1612, and sentences
forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1)
prepared by a certain Perlas, a CIS personnel, subscribed to before a DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the
Notary Public (Exhibits C and C-1). value of the stolen merchandise purchased by him in the sum of
P18,000.00.
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 Costs against the accused.
auntie. That sometime in February 1991, his auntie called up and
informed him about the spare parts stolen from the warehouse by SO ORDERED.
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, Manila, Philippines, August 5, 1996.
together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the
Page 69 of 71
(s/t) ZENAIDA R. DAGUNA 3. The accused knows or should have known that the said article, item,
Judge object or anything of value has been derived from the proceeds of the
crime of robbery or theft; and
Petitioner appealed to the Court of Appeals.
4. There is on the part of the accused, intent to gain for himself or for
After due proceedings, on January 29, 1998, the Courts of Appeals another.11
rendered decision finding no error in judgment appealed from, and
affirming the same in toto. Consequently, "the prosecution must prove the guilt of the accused by
establishing the existence of all the elements of the crime charged."12
In due time, petitioner filed with the Court of Appeals a motion for
reconsideration; however, on June 16, 1998, the Court of Appeals denied Short of evidence establishing beyond reasonable doubt the existence of
the motion. 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
Hence, this petition. be found guilty of crime except upon proof beyond reasonable doubt
(Perez vs. Sandiganbayan, 180 SCRA 9)."14

The issue raised is whether or not the prosecution has successfully


established the elements of fencing as against petitioner. 2 In this case, what was the evidence of the commission of theft
independently of fencing?

We resolve the issue in favor of petitioner.


Complainant Rosita Lim testified that she lost certain items and Manuelito
Mendez confessed that he stole those items and sold them to the accused.
"Fencing, as defined in Section 2 of P.D. No. 1612 is "the act of any person However, Rosita Lim never reported the theft or even loss to the police.
who, with intent to gain for himself or for another, shall buy, receive, She admitted that after Manuelito Mendez, her former employee,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or confessed to the unlawful taking of the items, she forgave him, and did not
in any manner deal in any article, item, object or anything of value which prosecute him. Theft is a public crime. It can be prosecuted de oficio, or
he knows, or should be known to him, to have been derived from the even without a private complainant, but it cannot be without a victim. As
proceeds of the crime of robbery or theft."3 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
"Robbery is the taking of personal property belonging to another, with of fencing is absent, that is, crime of robbery or theft has been committed.
intent to gain, by means of violence against or intimidation of any person,
or using force upon things."4 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 crime of theft is committed if the taking is without violence against or the boat parts he had pilfered from complainant to petitioner. However,
intimidation of persons nor force upon things. 5 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
"The law on fencing does not require the accused to have participated in counsel; otherwise, the admission would be inadmissible in evidence
the criminal design to commit, or to have been in any wise involved in the against the person so admitting.16 Here, the extra-judicial confession of
commission of, the crime of robbery or theft." 6 witness Mendez was not given with the assistance of counsel, hence,
inadmissible against the witness. Neither may such extra-judicial
Before the enactment of P.D. No. 1612 in 1979, the fence could only be confession be considered evidence against accused. 17 There must be
prosecuted as an accessory after the fact of robbery or theft, as the term is corroboration by evidence of corpus delicti to sustain a finding of
defined in Article 19 of the Revised Penal Code, but the penalty was light guilt.18 Corpus delicti means the "body or substance of the crime, and, in its
as it was two (2) degrees lower than that prescribed for the principal. 7 primary sense, refers to the fact that the crime has been actually
committed."19The "essential elements of theft are (1) the taking of
P.D. No. 1612 was enacted to "impose heavy penalties on persons who personal property; (2) the property belongs to another; (3) the taking
profit by the effects of the crimes of robbery and theft." Evidently, the away was done with intent of gain; (4) the taking away was done without
accessory in the crimes of robbery and theft could be prosecuted as such the consent of the owner; and (5) the taking away is accomplished without
under the Revised Penal Code or under P.D. No. 1612. However, in the violence or intimidation against persons or force upon things (U.S. vs. De
latter case, the accused ceases to be a mere accessory but becomes a 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
principal in the crime of fencing. Otherwise stated, the crimes of robbery
felonious taking.21 In this case, the theft was not proved because
and theft, on the one hand, and fencing, on the other, are separate and
complainant Rosita Lim did not complain to the public authorities of the
distinct offenses.8 The State may thus choose to prosecute him either
felonious taking of her property. She sought out her former employee
under the Revised Penal Code or P.D. No. 1612, although the preference
Manuelito Mendez, who confessed that he stole certain articles from the
for the latter would seem inevitable considering that fencing is malum
warehouse of the complainant and sold them to petitioner. Such
prohibitum, and P.D. No. 1612 creates a presumption of fencing 9 and
confession is insufficient to convict, without evidence of corpus delicti.22
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 What is more, there was no showing at all that the accused knew or should
elements of the crime of fencing as follows: 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
1. A crime of robbery or theft has been committed; 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
2. The accused, who is not a principal or accomplice in the commission of fact is an element of an offense, such knowledge is established if a person
the crime of robbery or theft, buys, receives, possesses, keeps, acquires, is aware of a high probability of its existence unless he actually believes
conceals, sells or disposes, or buys and sells, or in any manner deals in any that it does not exist. On the other hand, the words "should know" denote
article, item, object or anything of value, which has been derived from the the fact that a person of reasonable prudence and intelligence would
proceeds of the said crime; ascertain the fact in performance of his duty to another or would govern
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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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