Vino v.

People (1989)
At around 11pm of March 1985, while
ERNESTO was resting, he heard two
gunshots. Thereafter, he heard ROBERTO
(his son) cry out in a loud voice saying that he
had been shot. He immediately switched on
the lights of their house and when he looked
outside, he saw his son ROBERTO wounded.
Together with his wife and some neighbors,
they went down to meet ROBERTO who was
crying and calling for help. After coming
down, ERNESTO et al saw Lito VINO and
Jessie SALAZAR riding a bicycle coming from
the south towards their direction. VINO was
driving while SALAZAR was carrying an
armalite. Upon reaching ERNESTO's house,
they stopped to watch ROBERTO. SALAZAR
pointed his armalite at ERNESTO et al.
Thereafter, the two left. ROBERTO was
brought to the hospital. He was still conscious
and alive such that and PC/Col. Cacananta
was able to take his ante-mortem statement.
In the said statement which ROBERTO
signed with his own blood (how cool is
that?!), SALAZAR was identified as his
assailant. Then ROBERTO died.
On account of said ante-mortem statement
and the testimonies of the other witnesses,
VINO and SALAZAR were charged with
murder before the MTC of Balungao,
Pangasinan. MTC judge however referred the
case against SALAZAR to the Judge Advocate
Generals Office (JAGO) as he was a member
of the military hence, only the case
against VINO was given course. MTC referred
case for PI to fiscal and an information for
murder against VINO was ultimately filed
before the RTC of Pangasinan. Upon
arraignment, VINO entered a plea of not
guilty. Trial then commenced with the
presentation of evidence for the prosecution.
Instead of presenting evidence in his own
behalf, VINO filed a motion to dismiss for
insufficiency of evidence. RTC then rendered
decision finding VINO guilty as an accessory

to the crime of murder and imposing on him

the indeterminate penalty of prision
correccional as minimum to prision mayor
as maximum. He was also ordered to
indemnify the heirs of the victim
VINO appealed said conviction with the
CA but the same was denied, TCs decision
was affirmed in toto hence this appeal
During the pendency of the appeal, JAGO
has remanded SALAZARs case to the civil
courts as he was already discharged from
military service. Indeed, he was tried and
prosecuted in the RTC for the crime
committed and he was acquitted
Forthwith, VINO informed the Court of
such development
ISSUES:
1. WON his conviction as accessory can be
sustained even when the information charged
him as a principal [YES]
2. WON a finding of guilt as an accessory to
murder can stand in the light of the acquittal
of the alleged principal in a separate
proceeding [YES]
HELD: Petition is DISMISSED. Motion for
Reconsideration is also DENIED with
FINALITY.
RATIO:
1. This is not a case of a variance
between the offense charged and the
offense proved or established by the
evidence In this case, the correct offense
of murder was charged in the information.
The commission of the said crime was
established by the evidence; ergo, there is no
variance as to the offense committed. The
variance is in the participation or complicity
of the petitioner. While the petitioner was
being held responsible as a principal in the
information, the evidence adduced, however,
showed that his participation is merely that of
an accessory.
DOCTRINE: The greater responsibility
necessarily includes the lesser. An accused

can be validly convicted as an accomplice or

accessory under an information charging him
as a principal
The offense as charged in this case is
included in or necessarily includes the offense
proved in court, in which case the defendant
shall be convicted of the offense proved
included in that which is charged, or of the
offense charged included in that which is
proved
Under Art 16 of the Revised Penal Code,
the two other categories of persons
responsible for the commission of the same
offense, aside from the principal, are the
accomplice and the accessory. After the TCs
findings of fact, there is no doubt that the
crime of murder had been committed and
that the evidence tended to show that
SALAZAR was the assailant and VINO was
his companion
VINO must have been present during its
commission or at the very least must have
known its commission this is the only
logical
conclusion
considering
that
immediately after the shooting, VINO was
seen driving a bicycle with SALAZAR holding
an armalite, and they were together when
they left. It is thus clear that VINO actively
assisted SALAZAR in his escape. Petitioner's
liability is that of an accessory
At the onset, the prosecution should have
charged VINO as an accessory right then and
there because the degree of responsibility of
petitioner was apparent from the evidence
from the very get-go. At any rate, this lapse
did not violate the substantial rights of
petitioner
2. The trial of an accessory can
proceed without awaiting the result of
the separate charge against the
principal
The
corresponding
responsibilities of the principal, accomplice
and accessory are distinct from each other. As
long as the commission of the offense can be

duly
established
in
evidence
the
determination of the liability of the
accomplice or accessory can proceed
independently of that of the principal
It goes without saying therefore that
notwithstanding the acquittal of the principal
(say, due to the exempting circumstance of
minority or insanity), the accessory may
nevertheless be convicted if the crime was in
fact established
The acquittal of the principal will only
work as an acquittal for the accessory if such
acquittal was based on the finding that no
crime was committed inasmuch as the same
has happened by accident
IN THE CASE AT BAR, the commission of
the crime of murder and the responsibility of
the VINO as an accessory was established. As
to SALAZARs acquittal, it must be noted that
he was acquitted on the ground of reasonable
doubt. In SALAZARs trial, prosecution was
not able to present convincing evidence such
that the identity of the assailant was not
clearly established
In SALAZARs case, the ante-mortem
statement was competently controverted by
the defense. There was also some fatal
omissions on the part of the law enforcers
that constrained the TC judge to acquit
SALAZAR on reasonable doubt
The identity of the assailant is of no
material significance for the purpose of the
prosecution of the accessory. Even if the
assailant can not be identified the
responsibility of Vino as an accessory is
indubitable
Dissenting Opinions of Cruz and
Grio-Aquino, JJ:
The basic principle established by the
ponencia is agreeable that an accessory
may be convicted even when the identity of
the principal cannot be known as long as the

crime is established and the degree of

responsibility of the accused is proved.
HOWEVER, such general principle does
not find application in the case at bar because
the case of VINO is sui generis
VINO was convicted of having aided
SALAZAR who was named as the principal at
VINO's trial. At his own trial, SALAZAR was
acquitted for lack of sufficient identification.
VINO was convicted of helping in the escape
not of an unnamed principal but, specifically,
of SALAZAR. As SALAZAR himself has been
exonerated, the effect is that VINO is now
being held liable for helping an innocent
man, which is not a crime. VINO's conviction
should therefore be reversed
The accessory may not be convicted under
paragraph 3 of Article 19 of the Revised Penal
Code if the alleged principal is acquitted for,
in this instance, the principle that "the
accessory follows the principal" appropriately
applies

People vs Ortega
Laws

Applicable:

Art.

RPC

FACTS:
October 15, 1992 5:30 pm: Andre Mar
Masangkay (courting Raquel Ortega), Ariel
Caranto, Romeo Ortega, Roberto San Andres,
Searfin, Boyet and Diosdado Quitlong were
having a drinking spree with gin and finger
foods.
October 15, 1992 11:00 pm: Benjamin
Ortega, Jr. and Manuel Garcia who were
already drank joined them.

October 16, 1992 midnight: Andre

answering a call of nature went to the back
portion of the house and Benjamin followed
him. Suddenly, they heard a shout from
Andre Dont, help me! (Huwag, tulungan
ninyo ako!)
Diosdado and Ariel ran and saw Benjamin
on top of Andre who was lying down being

stabbed. Ariel got Benjamin Ortega, Sr.,

Benjamins father while Diosdado called
Romeo to pacify his brother. Romeo,
Benjamin and Manuel lifted Andre from the
canal and dropped him in the well. They
dropped stones to Andres body to weigh the
body down. Romeo warned Diosdado not to
tell anybody what he saw. He agreed so he
was allowed to go home. But, his conscience
bothered him so he told his mother, reported
it to the police and accompanied them to the
crime scene.
NBI Medico Legal Officer Dr. Ludivico J.
Lagat:
cause of death is drowning with
multiple stab wounds, contributory
13 stab wounds
stab wound on the upper left shoulder,
near the upper left armpit and left
chest wall- front
stab wound on the back left side of the
body and the stab wound on the back
right portion of the body back
Manuel Garcia alibi
He was asked to go home by his wife to
fetched his mother-in-law who
performed a ritual called tawas on
his sick daughter and stayed home
after

Benjamin
Ortega,
Jr.
story
o After Masangkay left, he left to urinate
and he saw Andre peeking through the room
of his sister Raquel. Then, Andre approached
him to ask where his sister was. When he
answered he didnt know, Andre punched
him so he bled and fell to the ground. Andre
drew a knife and stabbed him, hitting him on
the left arm, thereby immobilizing him.
Andre then gripped his neck with his left arm
and threatened to kill him. Unable to move,
Ortega shouted for help. Quitlong came,
seized the knife and stabbed Andre 10 times
with it. Andre then ran towards the direction

of the well. Then, he tended his wound in the

lips and armpit and slept.

Garcia is a brother-in-law of Benjamin

o Exempt by Article 20 of RPC

RTC: Benjamin and Manuel through

conspiracy and the taking advantage of
superior
strength
committed
murder

ISSUE: W/N Benjamin and Manuel should be

liable
for
murder.
HELD: NO. PARTLY GRANTED. Benjamin is
guilty only of homicide. Manuel deserves
acquittal
If Ortegas version of the assault was true,
he should have immediately reported the
matter to the police authorities. If Ortegas
version of the assault was true, he should
have immediately reported the matter to the
police authorities. It is incredible that
Diosdado would stab Andre 10 times
successively, completely ignoring Benjamin
who was grappling with Masangkay and that
Andre was choking him while being stabbed.

Abuse of superior strength requires

deliberate intent on the part of the accused to
take advantage of such superiority none
shown
o Andre was a 6-footer, whereas Ortega, Jr.
was
only
54
Article 4, par. 1, of the Revised Penal Code
states that criminal liability shall be incurred
by any person committing a felony (delito)
although the wrongful act done be different
from
that
which
he
intended.
o
The
essential
requisites
1. the intended act is felonious assisting
Benjamin by carrying the body to the well
2. the resulting act is likewise a felony concealing the body of the crime to prevent
its
discovery
3. the unintended albeit graver wrong was
primarily caused by the actors wrongful acts
(praeter intentionem) still alive and was
drowned
to
death
a person may be convicted of homicide
although he had no original intent to kill

ART. 20. Accessories who are

exempt from criminal liability. -- The
penalties prescribed for accessories
shall not be imposed upon those who
are such with respect to their spouses,
ascendants, descendants, legitimate,
natural, and adopted brothers and
sisters, or relatives by affinity within
the same degrees with the single
exception of accessories falling within
the provisions of paragraph 1 of the
next preceding article.
The penalty for homicide is reclusion
temporal under Article 249 of the Revised
Penal Code, which is imposable in its medium
period, absent any aggravating or mitigating
circumstance, as in the case of Appellant
Ortega. Because he is entitled to the benefits
of the Indeterminate Sentence Law, the
minimum term shall be one degree lower,
that is, prision mayor.
Dizon-Pamintuan vs People

On or about and during the period from

February 12, to February 24, 1988, inclusive,
in the City of Manila, Philippines, the said
accused, with intent of gain for herself or for
another, did then and there wilfully,
unlawfully and knowingly buy and keep in
her possession and/or sell or dispose of the
following jewelries, to wit: one (1) set of
earrings, a ring studded with diamonds in a
triangular style, one (1) set of earrings
(diamond studded) and one (1) diamondstudded crucifix, or all valued at
P105,000.00, which she knew or should have
known to have been derived from the

proceeds of the crime of robbery committed

by Joselito Sacdalan Salinas against the
owner
Teodoro
and
Luzviminda
3
Encarnacion.

On the basis of the testimonies of prosecution

witnesses Teodoro Encarnacion (one of the
offended parties), Cpl. Ignacio Jao, Jr., and
Pfc. Emmanuel Sanchez, both of the Western
Police District, the trial court promulgated on
16 November 1990 its decision, the
dispositive portion of which reads:
WHEREFORE, the prosecution having
proved the guilty of the accused for violation
of Presidential Decree No. 1612 beyond
reasonable doubt, the accused Norma DizonPamintuan is hereby sentenced to suffer an
indeterminate penalty of imprisonment from
FOURTEEN (14) YEARS ofprision mayor to
NINETEEN
(19)
YEARS
of reclusion
temporal.

No civil liability in view of the recovery of the

items, subject-matter of this case.
With costs. 4

Teodoro
Encarnacion,
Undersecretary,
Department of Public Works and Highways
testified that he has just arrived at his
residence
located
at
Better
Living
Subdivision, Paraaque at around 9:45 p.m.
of February 12, 1988 coming from the Airport
and immediately proceeded inside the house,
leaving behind his driver and two

housemaids outside to pick-up his personal

belongings from his case. It was at this point
that five unidentified masked armed persons
appeared from the grassy portion of the lot
beside the house and poked their guns to his
driver and two helpers and dragged them
inside his house. That the men pointed a gun
at him and was made to lie face down on the
floor. The other occupants, namely his wife,
the maids and his driver were likewise made
to lie on the floor. Thereafter, the robbers
ransacked the house and took away jewelries
and other personal properties including cash.
After the intruders left the house he reported
the matter immediately to the police. He was
then interviewed by the Paraaque police and
was informed that an operation group would
be assigned to the case.
He likewise reported the matter to the
Western Police District on February 15, 1988.
Two days later, a group of WPD operatives
came over to his house and he was asked to
prepare a list of items of jewelry and other
valuables that were lost including a sketch of
distinctive items. He was later told that some
of the lost items were in Chinatown area as
tipped by the informer the police had
dispatched. That an entrapment would be
made with their participation, on February
14, 1988. As such, they went to Camp Crame
at around 9:00 a.m. and arrived at the
vicinity of 733 Florentino Torres Street, Sta.
Cruz, Manila at about 10:00 a.m.; that he is
with his wife posed as a buyer and were able
to recognize items of the jewelry stolen
displayed at the stall being tended by Norma
Dizon Pamintuan; the pieces were: 1 earring
and ring studded with diamonds worth
P75,000 bought from estimator Nancy Bacud
(Exh. "C-2"), 1 set of earring diamond worth

P15,000 (Exh. "C-3") and 1 gold chain with

crucifix worth P3,000 (Exh. "C-4").

surrendered the items and gave them to [his]

wife." 6

Corporal Ignacio Jao, Jr. of the WPD testified

that he was with the spouses Teodoro
Encarnacion, Jr. in the morning of February
24, 1988 and they proceeded to Florentino
Torres Street, Sta. Cruz, Manila at the stall of
Norma Dizon-Pamintuan together with Sgt.
Perez. After the spouses Encarnacion
recognized the items subject matter of the
robbery at the display window of the stall
being tended by the herein accused, they
invited the latter to the precinct and
investigated the same. They likewise brought
the said showcase to the WPD station. He
further testified that he has no prior
knowledge of the stolen jewelries of the
private complainant from one store to
another.

On the other hand, the version of the defense,

as testified to by Rosito Dizon-Pamintuan, is
summarized by the trial court thus:

Pfc. Emmanuel Sanchez of the WPD testified

that he reported for duty on February 24,
1988; that he was with the group who
accompanied the spouses Encarnacion in Sta.
Cruz, Manila and was around when the
couple saw some of the lost jewelries in the
display stall of the accused. He was likewise
present during the early part of the
investigation of the WPD station. 5

The recovery of the pieces of jewelry, on the

basis of which the trial court ruled that no
civil liability should be adjudged against the
petitioner, took place when, as testified to by
Teodoro
Encarnacion,
the
petitioner
"admitted that she got the items but she did
not know they were stolen [and that] she

The defense presented only the testimony of

Rosito Dizon-Pamintuan who testified that he
is the brother of Norma Dizon-Pamintuan
and that sometime around 11:00 a.m. of
February 24, 1985, he, together with the
accused went infront of the Carinderia along
Florentino Torres Street, Sta. Cruz, Manila
waiting for a vacancy therein to eat lunch.
Suddenly, three persons arrived and he
overheard that Cpl. Jao told her sister to get
the jewelry from inside the display window
but her sister requested to wait for Fredo, the
owner of the stall. But ten minutes later when
said Fredo did not show up, the police officer
opened the display window and got the
contents of the same. The display stall was
hauled to a passenger jeepney and the same,
together with the accused were taken to the
police headquarters. He likewise testified that
he accompanied his sister to the station and
after investigation was sent home. 7
In convicting the petitioner, the trial court
made the following findings:
The prosecution was able to prove by
evidence that the recovered items were part
of the loot and such recovered items belong to
the spouses Encarnacion, the herein private
complainants. That such items were
recovered by the Police Officers from the stall
being tended by the accused at that time. Of
importance, is that the law provides a

disputable presumption of fencing under

Section 5 thereof, to wit:

of the Anti-Fencing Law of 1979 (P.D. No.

1612), to wit:

Mere possession of any goods, article, item

object, or anything of value which has been
the subject of robbery or thievery shall
be prima facie evidence of fencing.

1. A crime of robbery or theft has been

committed;

There is no doubt that the recovered items

were found in the possession of the accused
and she was not able to rebut the
presumption though the evidence for the
defense alleged that the stall is owned by one
Fredo. A distinction should likewise be made
between ownership and possession in
relation to the act of fencing. Moreover, as to
the value of the jewelries recovered, the
prosecution was able to show that the same is
Ninety
Three
Thousand
Pesos
8
(P93,000.00).

2. A person, not a participant in said crime,

buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells;
or in any manner deals in any article or item,
object or anything of value;
3. With personal knowledge, or should be
known to said person that said item, object or
anything of value has been derived from the
proceeds of the crime of robbery or theft;
4. With intent to gain for himself or for
another;
have been established by positive and
convincing evidence of the prosecution . . .
...

The petitioner then appealed her conviction

to the Court of Appeals (CA-G.R. CR No.
11024) where she raised two issues: (1) that
the judgment was based on a mere
presumption, and (2) that the prosecution
failed to show that the value of the jewelry
recovered is P93,000.00.

In its challenged decision of 29 March 1993,

the Court of Appeals disposed of the first
issue in this wise:
The
guilt
of
accused-appellant
was
established beyond reasonable doubt. All the
elements of the crime of fencing in violation

The fact that a crime of robbery has been

committed on February 12, 1988 is
established by the testimony of private
complainant Teodoro T. Encarnacion who
immediately reported the same to Paraaque
Police Station of the Southern Police District
(TSN, Hearings of October 3, 1988,
November 9, 1988 and January 11, 1989; Exh.
A) and submitted a list and sketches of the
jewelries robbed, among other things, from
their residence located at Better Living
Subdivision, Paraaque, Metro Manila (Exh.
C,
C-1 to C-4 and D).
The second element is likewise established by
convincing evidence. On February 24, 1988,

accused-appellant was found selling the

jewelries (Exhs. C-2, C-3 and C-4) which was
displayed in a showcase in a stall located at
Florentino Street, Sta. Cruz, Manila.
[Testimonies of Teodoro Encarnacion (id.
supra); Cpl. Ignacio Jao (TSN, Hearing of
February 13, 1989) and Pfc. Emmanuel
Sanchez (TSN, Hearing of June 4, 1989)].
On the element of knowledge that the items
are derived from the proceeds of the crime of
robbery and of intent to gain for herself or for
another, the Anti-Fencing Law provides:
Sec. 5. Presumption of Fencing. Mere
possession of any good, article, item, object,
or anything of value which has been the
subject of robbery or thievery shall be prima
facie evidence of fencing.
Knowledge and intent to gain are proven by
the fact that these jewelries were found in
possession of appellant and they were
displayed for sale in a showcase being tended
by her in a stall along Florentino Street, Sta.
Cruz, Manila. 9
Nevertheless, the Court of Appeals was of the
opinion that there was not enough evidence
to prove the value of the pieces of jewelry
recovered, which is essential to the
imposition of the proper penalty under
Section
3
of
P.D.
No. 1612. It opined that the trial court erred
in concluding that "the value of the recovered
jewelries is P93,000.00 based on the bare
testimony of the private complainant and the
self-serving list he submitted (Exhs. C, C-2
and C-4, TSN, Hearing of October 3,
1993)." 10

The dispositive portion of the Court of

Appeals' decision reads:
WHEREFORE, finding that the trial court did
not commit any reversible error, its decision
dated October 26, 1990 convincing accused
appellant is hereby AFFIRMED with the
modification that the penalty imposed is SET
ASIDE and the Regional Trial Court (Branch
20) of Manila is ordered toreceive evidence
with respect to the correct valuation of the
properties involved in this case, marked as
Exhibits "C", "C-2" and "C-4" for the sole
purpose of determining the proper penalty to
be meted out against accused under Section
3, P.D. No. 1612. Let the original records be
remanded immediately. 11
Hence, this petition wherein the petitioner
contends that:
I
PUBLIC
RESPONDENT
COURT
OF
APPEALS
MANIFESTLY
ERRED
IN
AFFIRMING THE DECISION OF PUBLIC
RESPONDENT
JUDGE
CAEBA,
IN
BLATANT DISREGARD OF APPLICABLE
LAW
AND
WELL-ESTABLISHED
JURISPRUDENCE.
II
PUBLIC
RESPONDENT
COURT
OF
APPEALS
MANIFESTLY
ERRED
IN
REMANDING THE CASE TO THE COURT A
QUO FOR RECEPTION OF EVIDENCE FOR
THE PURPOSE OF DETERMINING THE
CORRECT PENALTY TO BE IMPOSED. 12
On 23 February 1994, after the public
respondents had filed their Comment and the

petitioner her Reply to the Comment, this

Court gave due course to the petition and
required the parties to submit their respective
memoranda, which they subsequently
complied with.
The first assigned error is without merit.
Fencing, as defined in Section 2 of P.D. No.
1612 (Anti-Fencing Law), is "the act of any
person who, with intent to gain for himself or
for another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any
article, item, object or anything of value
which he knows, or should be known to him,
to have been derived from the proceeds of the
crime of robbery or theft."
Before P.D. No. 1612, a fence could only be
prosecuted for and held liable as
an accessory, as the term is defined in Article
19 of the Revised Penal Code. The penalty
applicable to an accessory is obviously light
under the rules prescribed in Articles 53, 55,
and 57 of the Revised Penal Code, subject to
the qualification set forth in Article 60
thereof. Nothing, however, the reports from
law enforcement agencies that "there is
rampant robbery and thievery of government
and private properties" and that "such
robbery and thievery have become profitable
on the part of the lawless elements because of
the existence of ready buyers, commonly
known as fence, of stolen properties," P.D.
No. 1612 was enacted to "impose heavy
penalties on persons who profit by the effects
of the crimes of robbery and theft." Evidently,
the accessory in the crimes of robbery and
theft could be prosecuted as such under the
Revised Penal Code or under P.D. No. 1612.

However, in the latter case, he ceases to be a

mere accessory but becomes a principal in
the crime of fencing. Elsewise stated, the
crimes of robbery and theft, on the one hand,
and fencing, on the other, are separate and
distinct offenses. 13 The state may thus choose
to prosecute him either under the Revised
Penal Code or P.D. No. 1612, although the
preference for the latter would seem
inevitable considering that fencing is
a malum prohibitum, and P.D. No. 1612
creates a presumption of fencing 14 and
prescribes a higher penalty based on the
value of the property. 15
The elements of the crime of fencing are:
1. A crime of robbery or theft has been
committed;
2. The accused, who is not a principal or
accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses,
keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any
article, item, object or anything of value,
which has been derived from the proceeds of
the said crime;
3. The accused knows or should have known
that the said article, item, object or anything
of value has been derived from the proceeds
of the crime of robbery or theft; and
4. There is, on the part of the accused, intent
to gain for himself or for another.
In the instant case, there is no doubt that the
first, second, and fourth elements were duly
established. A robbery was committed on 12
February 1988 in the house of the private
complainants who afterwards reported the

incident to the Paraaque Police, the Western

Police District, the NBI, and the CIS, and
submitted a list of the lost items and sketches
of the jewelry taken from them (Exhibits "C"
and "D"). Three of these items stolen, viz., (a)
a pair of earrings and ring studded with
diamonds worth P75,000.00 (Exhibit "C-2");
(b) one set of earrings worth P15,000.00
(Exhibit "C-3"); and (c) a chain with crucifix
worth P3,000.00 (Exhibit "C-4"), were
displayed for sale at a stall tended to by the
petitioner in Florentino Torres Street, Sta.
Cruz, Manila. The public display of the
articles for sale clearly manifested an intent
to gain on the part of the petitioner.
The more crucial issue to be resolved is
whether the prosecution proved the existence
of the third element: that the accused knew or
should have known that the items recovered
from her were the proceeds of the crime of
robbery or theft.
One is deemed to know a particular fact if he
has the cognizance, consciousness or
awareness thereof, or is aware of the
existence of something, or has the
acquaintance with facts, or if he has
something within the mind's grasp with
certitude and clarity. 16 When knowledge of
the existence of a particular fact is an element
of an offense, such knowledge is established if
a person is aware of a high probability of its
existence unless he actually believes that it
does not exist. 17 On the other hand, the words
"should know" denote the fact that a person
of reasonable prudence and intelligence
would ascertain the fact in performance of his
duty to another or would govern his conduct
upon
assumption
that
such
fact
18
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. 19
Since Section 5 of P.D. No. 1612 expressly
provides that "[m]ere possession of any good,
article, item, object, or anything of value
which has been the subject of robbery or
thievery shall be prima facie evidence of
fencing," it follows that the petitioner is
presumed to have knowledge of the fact that
the items found in her possession were the
proceeds of robbery or theft. The
presumption is reasonable for no other
natural or logical inference can arise from the
established fact of her possession of the
proceeds of the crime of robbery or theft. This
presumption
does
not
offend
the
presumption of innocence enshrined in the
fundamental law. 20 In the early case
of United
States
vs.
Luling, 21 this Court held:
It has been frequently decided, in case of
statutory crimes, that no constitutional
provision is violated by a statute providing
that proof by the state of some material
fact or
facts
shall
constitute prima
facieevidence of guilt, and that then the
burden is shifted to the defendant for the
purpose of showing that such act or acts are
innocent and are committed without
unlawful intention. (Commonwealth vs.
Minor, 88 Ky., 422.)

In some of the States, as well as in England,

there exist what are known as common law
offenses. In the Philippine Islands no act is a
crime unless it is made so by statute. The
state having the right to declare what acts are
criminal, within certain well defined
limitations, has a right to specify what act or
acts shall constitute a crime, as well as what
proof shall constitute prima facie evidence of
guilt, and then to put upon the defendant the
burden of showing that such act or acts are
innocent and are not committed with any
criminal intent or intention.
In his book on constitutional law, 22 Mr.
Justice Isagani A. Cruz said:
Nevertheless, the constitutional presumption
of innocence may be overcome by contrary
presumptions based on the experience of
human conduct [People vs. Labara, April 20,
1954]. Unexplained flight, for example, may
lead to an inference of guilt, as 'the wicked
flee when no man pursueth, but the righteous
is as bold as a lion. Failure on the part of the
accused to explain his possession of stolen
property may give rise to the reasonable
presumption that it was he himself who had
stolen it [U.S. vs. Espia, 16 Phil. 506]. Under
our Revised Penal Code, the inability of an
accountable officer to produce funds or
property entrusted to him will be
considered prima facieevidence that he has
appropriated them to his personal use [Art.
217]. According to Cooley, the constitutional
presumption will not apply as long as there is
"some rational connection between the fact
proved and the ultimate fact presumed, and
the inference of one fact from proof of
another shall not be so unreasonable as to be
purely arbitrary mandate" [1 Cooley, 639].

The petitioner was unable to rebut the

presumption under P.D. No. 1612. She relied
solely on the testimony of her brother which
was
insufficient
to
overcome
the
presumption, and, on the contrary, even
disclosed that the petitioner was engaged in
the purchase and sale of jewelry and that she
used to buy from a certain Fredo. 23
Fredo was not presented as a witness and it
was not established that he was a licensed
dealer or supplier of jewelry. Section 6 of P.D.
No. 1612 provides that "all stores,
establishments or entitles dealing in the buy
and sell of any good, article, item, object or
anything of value obtained from an
unlicensed dealer or supplier thereof, shall
before offering the same for sale to the public,
secure the necessary clearance or permit from
the station commander of the Integrated
National Police in the town or city where such
store, establishment or entity is located."
Under
the
Rules
and
24
Regulations promulgated to carry out the
provisions of Section 6, an unlicensed
dealer/supplier refers to any person,
partnership, firm, corporation, association or
any other entity or establishment not licensed
by the government to engage in the business
of dealing in or supplying "used secondhand
articles," which refers to any good, article,
item, object or anything of value obtained
from an unlicensed dealer or supplier,
regardless of whether the same has actually
or in fact been used.
We do not, however, agree with the Court of
Appeals that there is insufficient evidence to
prove the actual value of the recovered
articles.

As found by the trial court, the recovered

articles had a total value of P93,000.00,
broken down as follows:
a) one earring and ring studded with
diamonds (Exh. "C-2") P75,000.00
b) one set of earring (Exh. "C-3")
P15,000.00
c) one gold chain with crucifix (Exh. "C-4")
P3,000.00
These findings are based on the testimony of
Mr. Encarnacion 25 and on Exhibit "C," 26 a
list of the items which were taken by the
robbers on 12 February 1988, together with
the corresponding valuation thereof. On
cross-examination, Mr. Encarnacion reaffirmed his testimony on direct examination
that the value of the pieces of jewelry
described
in
Exhibit
"C-2"
is
27
P75,000.00 and that the value of the items
described in Exhibit "C-3" is P15,000.00,
although he admitted that only one earring
and not the pair was recovered. 28 The
cross-examination withheld any question on
the gold chain with crucifix described in
Exhibit "C-4." In view, however, of the
admission that only one earring was
recovered of the jewelry described in Exhibit
"C-3," it would be reasonable to reduce the
value from P15,000.00 to P7,500.00.
Accordingly, the total value of the pieces of
jewelry displayed for sale by the petitioner
and established to be part of the proceeds of
the robbery on 12 February 1988 would be
P87,000.00.
Section 3(a) of P.D. No. 1612 provides that
the penalty of prision mayor shall be
imposed upon the accused if the value of the

property involved is more than P12,000.00

but does not exceed P22,000.00, and if the
value of such property exceeds the latter sum,
the penalty of prision mayor should be
imposed in its maximum period, adding one
year for each additional P10,000.00; the total
penalty which may be imposed, however,
shall not exceed twenty years. In such cases,
the penalty shall be termed reclusion
temporal and
the
accessory
penalty
pertaining thereto provided in the Revised
Penal Code shall also be imposed. The
maximum penalty that can be imposed in this
case would then be eighteen (18) years and
five (5) months, which is within the range
of reclusion temporalmaximum. Applying the
Indeterminate Sentence law which allows the
imposition of an indeterminate penalty
which, with respect to offenses penalized by a
special law, shall range from a minimum
which shall not be lower than the minimum
prescribed by the special law to a maximum
which should not exceed the maximum
provided therein, the petitioner can thus be
sentenced to an indeterminate penalty
ranging from ten (10) years and one (1) day
of prision mayor maximum, as minimum to
eighteen (18) years and five (5) months
of reclusion
temporalmaximum
as maximum, with the accessory penalties
corresponding to the latter.
In the light of the foregoing, the Court of
Appeals erred in setting aside the penalty
imposed by the trial court and in remanding
the case to the trial court for further reception
of evidence to determine the actual value of
the pieces of jewelry recovered from the
petitioner and for the imposition of the
appropriate penalty.

We do not agree with the petitioner's

contention, though, that a remand for further
reception of evidence would place her in
double jeopardy. There is double jeopardy
when the following requisites concur: (1) the
first jeopardy must have attached prior to the
second, (2) the first jeopardy must have
validly been terminated, and (3) the second
jeopardy must be for the same offense as that
in the first. 29 Such a concurrence would not
occur assuming that the case was remanded
to the trial court.
WHEREFORE, the instant petition is partly
GRANTED by setting aside the challenged
decision of the Court of Appeals in CA-G.R.
CR No. 11024 insofar as it sets aside the
penalty imposed by Branch 20 of the
Regional Trial Court of Manila in Criminal
Case No. 88-64954 and orders the remand of
the case for the trial court to receive evidence
with respect to the correct value of the
properties involved. The decision of the
Regional Trial Court is AFFIRMED subject to
the modification of the penalty which is
hereby reduced to an indeterminate penalty
ranging from Ten (10) years and One (1) day
of Prision Mayor maximum as minimum to
Eighteen (18) years and Five (5) months
of Reclusion
Temporal maximum
as maximum, with the accessory penalties of
the latter.

Complainant Rosita Lim is the proprietor

of Bueno Metal Industries, located at 301
Jose Abad Santos St., Tondo, Manila,
engaged in the business of manufacturing
propellers or spare parts for boats. Manuelito
Mendez was one of the employees working
for her. Sometime in February 1991,
Manuelito Mendez left the employ of the
company. Complainant Lim noticed that
some of the welding rods, propellers and boat
spare parts, such as bronze and stainless
propellers and brass screws were missing.
She conducted an inventory and discovered
that propellers and stocks valued at
P48,000.00, more or less, were missing.
Complainant Rosita Lim informed Victor Sy,
uncle of Manuelito Mendez, of the loss.
Subsequently, Manuelito Mendez was
arrested in the Visayas and he admitted that
he and his companion Gaudencio Dayop stole
from the complainants warehouse some boat
spare parts such as bronze and stainless
propellers and brass screws. Manuelito
Mendez asked for complainants forgiveness.
He pointed to petitioner Ramon C. Tan as the
one who bought the stolen items and who
paid the amount of P13,000.00, in cash to
Mendez and Dayop, and they split the
amount with one another. Complainant did
not file a case against Manuelito Mendez and
Gaudencio Dayop.

SO ORDERED.
Cruz, Bellosillo, Quiason and Kapunan, JJ.,
concur.

Tan vs People

On relation of complainant Lim, an

Assistant City Prosecutor of Manila filed with
the Regional Trial Court, Manila, Branch 19,
an information against petitioner charging
him with violation of Presidential Decree No.
1612 (Anti-Fencing Law) committed as
follows:

That on or about the last week of February

1991, in the City of Manila, Philippines, the
said accused, did then and there wilfully,
unlawfully and feloniously knowingly receive,
keep, acquire and possess several spare parts
and items for fishing boats all valued at
P48,130.00 belonging to Rosita Lim, which
he knew or should have known to have been
derived from the proceeds of the crime of
theft.
Contrary to law.
Upon arraignment on November 23,
1992, petitioner Ramon C. Tan pleaded not
guilty to the crime charged and waived pretrial. To prove the accusation, the prosecution
presented the testimonies of complainant
Rosita Lim, Victor Sy and the confessed thief,
Manuelito Mendez.
On the other hand, the defense presented
Rosita Lim and Manuelito Mendez as hostile
witnesses and petitioner himself. The
testimonies
of
the
witnesses
were
summarized by the trial court in its decision,
as follows:
ROSITA LIM stated that she is the owner of
Bueno Metal Industries, engaged in the
business of manufacturing propellers,
bushings, welding rods, among others
(Exhibits A, A-1, and B). That sometime in
February 1991, after one of her employees left
the company, she discovered that some of the
manufactured spare parts were missing, so
that on February 19, 1991, an inventory was
conducted and it was found that some
welding rods and propellers, among others,
worth P48,000.00 were missing. Thereafter,
she went to Victor Sy, the person who

recommended
Mr.
Mendez
to
her.
Subsequently, Mr. Mendez was arrested in
the Visayas, and upon arrival in Manila,
admitted to his having stolen the missing
spare parts sold then to Ramon Tan. She then
talked to Mr. Tan, who denied having bought
the same.
When presented on rebuttal, she stated that
some of their stocks were bought under the
name of Asia Pacific, the guarantor of their
Industrial Welding Corporation, and stated
further that whether the stocks are bought
under the name of the said corporation or
under the name of William Tan, her husband,
all of these items were actually delivered to
the store at 3012-3014 Jose Abad Santos
Street and all paid by her husband.
That for about one (1) year, there existed a
business relationship between her husband
and Mr. Tan. Mr. Tan used to buy from them
stocks of propellers while they likewise
bought from the former brass woods, and
that there is no reason whatsoever why she
has to frame up Mr. Tan.
MANUELITO MENDEZ stated that he
worked as helper at Bueno Metal Industries
from November 1990 up to February 1991.
That sometime in the third week of February
1991, together with Gaudencio Dayop, his coemployee, they took from the warehouse of
Rosita Lim some boat spare parts, such as
bronze and stainless propellers, brass screws,
etc. They delivered said stolen items to
Ramon Tan, who paid for them in cash in the
amount of P13,000.00. After taking his share
(one-half (1/2) of the amount), he went home
directly to the province. When he received a
letter from his uncle, Victor Sy, he decided to

return to Manila. He was then accompanied

by his uncle to see Mrs. Lim, from whom he
begged for forgiveness on April 8, 1991. On
April 12, 1991, he executed an affidavit
prepared by a certain Perlas, a CIS personnel,
subscribed to before a Notary Public
(Exhibits C and C-1).
VICTORY [sic] SY stated that he knows both
Manuelito Mendez and Mrs. Rosita Lim, the
former being the nephew of his wife while the
latter is his auntie. That sometime in
February 1991, his auntie called up and
informed him about the spare parts stolen
from the warehouse by Manuelito Mendez. So
that he sent his son to Cebu and requested his
kumpadre, a police officer of Sta. Catalina,
Negros Occidental, to arrest and bring
Mendez back to Manila. When Mr. Mendez
was brought to Manila, together with Supt.
Perlas of the WPDC, they fetched Mr. Mendez
from the pier after which they proceeded to
the house of his auntie. Mr. Mendez admitted
to him having stolen the missing items and
sold to Mr. Ramon Tan in Sta. Cruz, Manila.
Again, he brought Mr. Mendez to Sta. Cruz
where he pointed to Mr. Tan as the buyer, but
when confronted, Mr. Tan denied the same.
ROSITA LIM, when called to testify as a
hostile witness, narrated that she owns Bueno
Metal Industries located at 301 Jose Abad
Santos Street, Tondo, Manila. That two (2)
days after Manuelito Mendez and Gaudencio
Dayop left, her husband, William Tan,
conducted an inventory and discovered that
some of the spare parts worth P48,000.00
were missing. Some of the missing items were
under the name of Asia Pacific and William
Tan.

MANUELITO MENDEZ, likewise, when

called to testify as a hostile witness, stated
that he received a subpoena in the Visayas
from the wife of Victor Sy, accompanied by a
policeman of Buliloan, Cebu on April 8, 1991.
That he consented to come to Manila to ask
forgiveness from Rosita Lim. That in
connection with this case, he executed an
affidavit on April 12, 1991, prepared by a
certain Atty. Perlas, a CIS personnel, and the
contents thereof were explained to him by
Rosita Lim before he signed the same before
Atty. Jose Tayo, a Notary Public, at Magnolia
House, Carriedo, Manila (Exhibits C and C-1).
That usually, it was the secretary of Mr. Tan
who accepted the items delivered to Ramon
Hardware. Further, he stated that the stolen
items from the warehouse were placed in a
sack and he talked to Mr. Tan first over the
phone before he delivered the spare parts. It
was Mr. Tan himself who accepted the stolen
items in the morning at about 7:00 to 8:00
oclock and paid P13,000.00 for them.
RAMON TAN, the accused, in exculpation,
stated that he is a businessman engaged in
selling hardware (marine spare parts) at 944
Espeleta Street, Sta. Cruz, Manila.
He denied having bought the stolen spare
parts worth P48,000.00 for he never talked
nor met Manuelito Mendez, the confessed
thief. That further the two (2) receipts
presented by Mrs. Lim are not under her
name and the other two (2) are under the
name of William Tan, the husband, all in all
amounting to P18,000.00. Besides, the
incident was not reported to the police
(Exhibits 1 to 1-g).

He likewise denied having talked to

Manuelito Mendez over the phone on the day
of the delivery of the stolen items and could
not have accepted the said items personally
for everytime (sic) goods are delivered to his
store, the same are being accepted by his
staff. It is not possible for him to be at his
office at about 7:00 to 8:00 oclock in the
morning, because he usually reported to his
office at 9:00 oclock. In connection with this
case, he executed a counter-affidavit
(Exhibits 2 and 2-a).[1]
On August 5, 1996, the trial court
rendered decision, the dispositive portion of
which reads:
WHEREFORE, premises considered, the
accused RAMON C. TAN is hereby found
guilty beyond reasonable doubt of violating
the Anti-Fencing Law of 1979, otherwise
known as Presidential Decree No. 1612, and
sentences him to suffer the penalty of
imprisonment of SIX (6) YEARS and ONE (1)
DAY to TEN (10) YEARS of prision mayor
and to indemnify Rosita Lim the value of the
stolen merchandise purchased by him in the
sum of P18,000.00.
Costs against the accused.
SO ORDERED.
Manila, Philippines, August 5, 1996.

After due proceedings, on January 29,

1998, the Court of Appeals rendered decision
finding no error in the judgment appealed
from, and affirming the same in toto.
In due time, petitioner filed with the
Court
of
Appeals
a
motion
for
reconsideration; however, on June 16, 1998,
the Court of Appeals denied the motion.
Hence, this petition.
The issue raised is whether or not the
prosecution has successfully established the
elements of fencing as against petitioner.[2]
We resolve
petitioner.

the

issue

in

favor

of

Fencing, as defined in Section 2 of P.D.

No. 1612 is the act of any person who, with
intent to gain for himself or for another, shall
buy, receive, possess, keep, acquire, conceal,
sell or dispose of, or shall buy and sell, or in
any manner deal in any article, item, object or
anything of value which he knows, or should
be known to him, to have been derived from
the proceeds of the crime of robbery or theft.
[3]

Robbery is the taking of personal

property belonging to another, with intent to
gain, by means of violence against or
intimidation of any person, or using force
upon things.[4]

(s/t) ZENAIDA R. DAGUNA

Judge
Petitioner appealed to the Court of
Appeals.

The crime of theft is committed if the

taking is without violence against or
intimidation of persons nor force upon
things.[5]

The law on fencing does not require the

accused to have participated in the criminal
design to commit, or to have been in any wise
involved in the commission of, the crime of
robbery or theft.[6]
Before the enactment of P. D. No. 1612 in
1979, the fence could only be prosecuted as
an accessory after the fact of robbery or theft,
as the term is defined in Article 19 of the
Revised Penal Code, but the penalty was light
as it was two (2) degrees lower than that
prescribed for the principal.[7]

2. The accused, who is not a principal or

accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses,
keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any
article, item, object or anything of value,
which has been derived from the proceeds of
the said crime;
3. The accused knows or should have known
that the said article, item, object or anything
of value has been derived from the proceeds
of the crime of robbery or theft; and

P. D. No. 1612 was enacted to impose

heavy penalties on persons who profit by the
effects of the crimes of robbery and theft.
Evidently, the accessory in the crimes of
robbery and theft could be prosecuted as such
under the Revised Penal Code or under P.D.
No. 1612. However, in the latter case, the
accused ceases to be a mere accessory but
becomes a principal in the crime of fencing.
Otherwise stated, the crimes of robbery and
theft, on the one hand, and fencing, on the
other, are separate and distinct offenses.
[8]
The State may thus choose to prosecute
him either under the Revised Penal Code or
P. D. No. 1612, although the preference for
the latter would seem inevitable considering
that fencing is malum prohibitum, and P. D.
No. 1612 creates a presumption of
fencing[9] and prescribes a higher penalty
based on the value of the property.[10]

4. There is on the part of the accused, intent

to gain for himself or for another.[11]

In Dizon-Pamintuan vs. People of the

Philippines, we set out the essential elements
of the crime of fencing as follows:

Complainant Rosita Lim testified that she

lost certain items and Manuelito Mendez
confessed that he stole those items and sold
them to the accused. However, Rosita Lim
never reported the theft or even loss to the
police. She admitted that after Manuelito
Mendez, her former employee, confessed to

1. A crime of robbery or theft has been

committed;

Consequently, the prosecution must

prove the guilt of the accused by establishing
the existence of all the elements of the crime
charged. [12]
Short of evidence establishing beyond
reasonable doubt the existence of the
essential elements of fencing, there can be no
conviction for such offense.[13] It is an ancient
principle of our penal system that no one
shall be found guilty of crime except upon
proof beyond reasonable doubt (Perez vs.
Sandiganbayan, 180 SCRA 9).[14]
In this case, what was the evidence of the
commission of theft independently of
fencing?

the unlawful taking of the items, she forgave

him, and did not prosecute him. Theft is a
public crime. It can be prosecuted de oficio,
or even without a private complainant, but it
cannot be without a victim. As complainant
Rosita Lim reported no loss, we cannot hold
for certain that there was committed a crime
of theft. Thus, the first element of the crime
of fencing is absent, that is, a crime of
robbery or theft has been committed.
There was no sufficient proof of the
unlawful taking of anothers property. True,
witness Mendez admitted in an extra-judicial
confession that he sold the boat parts he had
pilfered from complainant to petitioner.
However, an admission or confession
acknowledging guilt of an offense may be
given in evidence only against the person
admitting or confessing.[15] Even on this, if
given extra-judicially, the confessant must
have the assistance of counsel; otherwise, the
admission would be inadmissible in evidence
against the person so admitting.[16] Here, the
extra-judicial confession of witness Mendez
was not given with the assistance of counsel,
hence, inadmissible against the witness.
Neither may such extra-judicial confession be
considered evidence against accused.[17] There
must be corroboration by evidence of corpus
delicti to sustain a finding of guilt.[18] Corpus
delicti means the body or substance of the
crime, and, in its primary sense, refers to the
fact that the crime has been actually
committed.[19] The essential elements of theft
are (1) the taking of personal property; (2) the
property belongs to another; (3) the taking
away was done with intent of gain; (4) the
taking away was done without the consent of
the owner; and (5) the taking away is
accomplished
without
violence
or

intimidation against persons or force upon

things (U. S. vs. De Vera, 43 Phil. 1000).[20] In
theft, corpus delicti has two elements,
namely: (1) that the property was lost by the
owner, and (2) that it was lost by felonious
taking.[21] In this case, the theft was not
proved because complainant Rosita Lim did
not complain to the public authorities of the
felonious taking of her property. She sought
out her former employee Manuelito Mendez,
who confessed that he stole certain articles
from the warehouse of the complainant and
sold them to petitioner. Such confession is
insufficient to convict, without evidence
of corpus delicti.[22]
What is more, there was no showing at all
that the accused knew or should have known
that the very stolen articles were the ones
sold to him. One is deemed to know a
particular fact if he has the cognizance,
consciousness or awareness thereof, or is
aware of the existence of something, or has
the acquaintance with facts, or if he has
something within the minds grasp with
certitude and clarity. When knowledge of the
existence of a particular fact is an element of
an offense, such knowledge is established if a
person is aware of a high probability of its
existence unless he actually believes that it
does not exist. On the other hand, the words
should know denote the fact that a person of
reasonable prudence and intelligence would
ascertain the fact in performance of his duty
to another or would govern his conduct upon
assumption that such fact exists. Knowledge
refers to a mental state of awareness about a
fact. Since the court cannot penetrate the
mind of an accused and state with certainty
what is contained therein, it must determine
such knowledge with care from the overt acts

of that person. And given two equally

plausible states of cognition or mental
awareness, the court should choose the
one which sustains the constitutional
presumption of innocence.[23]
Without petitioner knowing that he
acquired stolen articles, he can not be guilty
of fencing.[24]

WHEREFORE, the Court REVERSES

and SETS ASIDE the decision of the Court of
Appeals in CA-G.R. CR. No. 20059 and
hereby ACQUITS petitioner of the offense
charged in Criminal Case No. 92-108222 of
the Regional Trial Court, Manila.
Costs de oficio.
SO ORDERED.

Consequently, the prosecution has failed

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