Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82264-66 December 4, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISAGANI GULINAO Y ALZONA, accused-appellant.
Citizens Legal Assistance Office for accused-appellant.

PARAS, J.:
In three (3) separate Informations filed before the Regional Trial Court of Valenzuela, Metro Manila,
Isagani Gulinao was charged with
1. Illegal Possession of Firearm with Murder (Proper designation of the offense on
the basis of the allegations in the Information should be Murder committed with the
use of an unlicensed firearm) Crim Case No. 8016-V-87;
2. Robbery Crim. Case No. 8017-V-87; and
3. Carnapping Crim. Case No. 8048-V-87
allegedly committed as follows:
1. Criminal Case No. 8016-V-87, For Violation of PD 1866 (Illegal Possession of Firearm with
Murder)
That on or about the 4th day of March, 1987, in the municipality of Valenzuela, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously have in his
possession and control one (1) Colt Caliber .45 pistol with SN C-1039161, without
authority and/or permit to do and with evident premeditation, treachery and intent to
kill Samson Chua, use said firearm to attack, assault and shoot said Samson Chua,
hitting the latter on his body, thereby causing his instantaneous death.
2. Criminal Case No. 8017-V-87, For Robbery
That on or about the 4th day of March, 1987, in the municipality of Valenzuela, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously, and with
violence upon the person of Samson Chua, with intent to gain take rob and carry
away with him one (1) gold men's ring with twelve (12) diamond stones worth
P85,000.00 belonging to said Samson Chua, to the damage and prejudice of the
latter in the sum of P85,000.00.

3. Criminal Case No. 8048-V-87, For Carnapping

That on or about March 4,1987, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously, with intent to gain
and by means of force, violence and intimidation, to wit: by then and there shooting
to death Samson Chua y Domingo, the person to whom the owner entrusted the
aforementioned motor vehicle, and intimidating with gunshots Virgilio Caguioa y
Dionisio, the driver/occupant of said motor vehicle, and then did take, steal and carry
away, without the owner's consent, a Toyota Corona Silver Edition, Colored Blue,
bearing plate No. PNB '870 and valued at P250,000.00 to the damage and prejudice
of the owner, Chua Ang Sing, in the aforesaid sum of P250,000.00 Philippine
Currency. (pp. 1-3, Brief for the Appellee; p. 106, Rollo)
Gulinao pleaded "not guilty" to the "Robbery" and "Carnapping" charges. But, he refused to enter
any plea to the charge of "Illegal Possession of Firearm with Murder", hence, the trial court entered
for him a plea of "not guilty" pursuant to Sec. 1 (c), Rule 116, 1985 Rules of Court on Criminal
Procedure. However, Gulinao moved to quash the Information charging him with "Illegal Possession
of Firearm" on the ground that there was another Criminal Case No. 87-52928 for "Illegal Possession
of Firearm" pending before the Regional Trial Court of Manila. In an Order dated April 24, 1987, the
trial court denied Gulinao's motion to quash. Whereupon, Gulinao assailed the Order in a petition for
certiorari (CA-G.R. SP No. 12412) before the Court of Appeals. In a Decision dated September 22,
1987, the Court of Appeals dismissed the petition for lack of merit.
The aforesaid three (3) criminal cases were jointly tried. After the prosecution had completed the
presentation of its evidence, the case was set on October 28, 1987 for the reception of evidence for
the defense. On the said date Gulinao refused to take the witness stand. Atty. Ricardo Perez, his
counsel de oficio who was representing him in the case for "Illegal Possession of Firearm with
Murder", manifested in open court that Gulinao even refused to be interviewed. On motion of Atty.
Perez to give him more time to talk to Gulinao or to withdraw from the case, the hearing was re-set
to Nov. 6, Nov. 16, Nov. 25 and Dec. 2, 1987, with warning that Gulinao's failure to present evidence
in the next hearing without valid grounds would be deemed a waiver of presentation of evidence for
his defense.
Meanwhile, on Nov. 4, 1987, Atty. Reynaldo Garcia, Gulinao's counsel de parte in the cases for
"Robbery" and "Carnapping" withdrew his appearance with the conformity of Gulinao.
In the scheduled hearing on Nov. 6, 1987, Gulinao did not present evidence. In the next hearing on
Nov. 16, 1987, two (2) young men tried to move for postponement, but they were found by the trial
court as not full-pledged lawyers. Gulinao refused to present evidence despite the willingness of
Atty. Perez to assist him. Atty. Perez later filed a motion to withdraw appearance due to the
uncooperativeness of Gulinao.
In view of the previous warning given by the trial court, Gulinao's failure to present evidence without
valid ground was considered as waiver of his right to present evidence. In the Order dated Nov. 16,
1987, the trial court noted:
Today when these cases were called for hearing the Court's appointed counsel de
oficio, manifested that the accused again did not want to cooperate and manifested
that in fairness to himself as lawyer and in fairness to the accused he is withdrawing
his appearance. The Court commiserates with the predicament of defense counsel
who was much interested to help the accused and the Court to give due process and

to expedite the hearing but the Court noted that it is the accused who has stubbornly
refused to present his defense evidence. Prior to his having been accused he was a
full-pledged police officer and he used to investigate cases for less than 3 years. (p.
6, Brief for the Appellee; p. 106, Rollo)
On Nov. 23, 1987, the trial court rendered a Decision, the dispositive portion of which readsWHEREFORE, in view of the foregoing the Court finds the accused Isagani Gulinao
guilty beyond reasonable doubt of the following crimes:
1. Illegal Possession of Firearm with Murder and hereby sentences him to suffer life
imprisonment which is one degree lower than the death penalty considering that the
Court can no longer impose the penalty of death as mandated by the New
Constitution.
2. Robbery under Art. 294 par. 5 and hereby sentences him to suffer the penalty
of prision correccional in its maximum period to prision mayor in its medium period or
four (4) years, two (2) months and one (1) day to six (6) years one (1) month and ten
(10) days.
3. Carnapping and hereby sentences him to suffer imprisonment of fourteen (14)
years and eight (8) months as minimum to seventeen (17) years and four (4) months
as maximum.
4. To indemnify the heirs of the victim Dr. Samson Chua in the sum of P500,000.00,
and to pay the costs. The entire period of the previous imprisonment of accused shall
be credited in his favor. (p. 7, Brief for the Appellee; p. 106, Rollo)
From the aforesaid decision, Gulinao interposed this appeal to this Court on the following
assignment of errors:
I
THE TRIAL COURT GRAVELY ERRED IN NOT ALLOWING THE ACCUSEDAPPELLANT TO PRESENT HIS EVIDENCE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARM WITH
MURDER.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY OF ROBBERY UNDER ARTICLE 294, PARAGRAPH 5, OF THE REVISED
PENAL CODE.
IV

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME OF CARNAPPING. (p. 8, Brief for the Appellee; p.
106, Rollo)
As established by the evidence of the prosecution, the facts of the case are as followsOn March 3, 1987, at about 9:00 P.M., Dr. Chua, appellant Gulinao (driverbodyguard of Dr. Chua), Virgilio Caguioa (secretary of Dr. Chua), Vice Mayor Teofilo
Reyes of Malabon, Dante Reyes (nephew of Vice Mayor Reyes), Boy Salazar and
other politicians were having a caucus in the house of a certain Torre in Acacia,
Malabon. After the caucus at about 11:00 P.M., the group of Dr. Chua boarded Dr.
Chua's car and that of Vice Mayor Reyes and proceeded to the Bar-Bar Disco House
along McArthur Highway, Valenzuela, Metro Manila (pp. 5-10, TSN April 6, 1987)
Upon arriving at the disco house, Gulinao, who had in his possession an Ingram
machine pistol, swapped the same with a .45 caliber pistol in possession of Dante
Reyes. Gulinao then tucked the .45 caliber pistol in his right waist (pp. 11-13, TSN
May 18, 1987).
Inside the disco house, Dr. Chua, Gulinao and companions occupied 2 tables which
were joined together neat, the stage (pp. 14-18, TSN April 6, 1987). Later, Gulinao
went to the comfort room and cocked the .45 caliber pistol. He then returned to his
seat beside Dr. Chua (pp. 14-15 TSN May 18, 1987).
While Dr. Chua was watching the floor show, Gulinao stood up and shot him on the
head at close range with the .45 caliber pistol (pp. 16-17 TSN May 22, 1987). When
Gulinao was about to leave the disco house, he turned back to Dr. Chua and took the
latter's gold ring embedded with 12 diamonds (p. 11 TSN October 5, 1987; pp. 28-29
TSN April 6, 1987; Exhs. "H" and "L-1") Thereupon, Gulinao rushed outside the disco
house to the car of Dr. Chua (p. 27 TSN April 6, 1987).
Poking the gun at Caguioa who was inside the car, Gulinao ordered the former to
leave the car. While Caguioa was getting out of the car, Gulinao fired at him but
missed (pp. 27-29 TSN April 6, 1987). On the other hand, Dante Reyes tried to fire at
Gulinao with the Ingram machine pistol, but the Ingram jammed (pp. 16-17 TSN May
18, 1987).
Gulinao drove the car towards Monumento (p. 29 TSN April 6, 1987). However, he
was constrained to leave the car and take a taxi when the car he was driving figured
in an accident in Malabon (p. 15 TSN July 10, 1987; Exh. "L-1").
Dr. Chua, who sustained gunshot wounds oil the head, was brought to the nearby
Our Lady of Fatima Hospital where he died on arrival (p. 17 TSN May 18, 1981). (pp.
8-11, Brief for the Appellee; p. 106, Rollo)
The contention of Gulinao in his first assignment of error is false. The record shows that he was
given several opportunities to present his defense but it was he who refused to take the witness
stand or to present any evidence.
Gulinao's second assignment of error raises a question of double jeopardy. It is claimed that "the
indictment for violation of Presidential Decree No. 1866 (Illegal Possession of Firearm) against the
accused-appellant in Crim. Case No. 8016-V-87 after he was already slapped of the same violation

before the Regional Trial Court of Manila (in Crim. Case No. 87-52928) involving the same firearm
and ammunition is a classic case of putting the accused-appellant in jeopardy (pp. 10-11, appellant's
brief).
This issue had already been raised by Gulinao in a petition for certiorari (CA-G.R. SP No. 12412)
before the Court of Appeals. which in a Decision dated September 22, 1987 held thatSince the incident that spawned Criminal Case No. 87-52928 in Manila happened
on March 5, 1987, while that in Criminal Case No. 8016-V-87 pending before RTC,
Valenzuela, happened on March 4, 1987; and since in the first case the charge is
that of illegal possession of firearms and that in the second case the commission of
murder with the use of an illegally possessed firearms, it follows that there is no
Identity of the crime charged and hence, no double jeopardy.
xxx xxx xxx
As stated by the court a quo, there is no possibility of double jeopardy, as the possession thereof
had taken place in two separate and distinct places and jurisdiction and the two informations
state different dates of commission. (pp. 164 and 169, Rec.; Emphasis supplied; See also Lu Hayco
vs. Court of Appeals, 138 SCRA 227 [1985]. (pp. 15-16, Brief for the Appellee; p. 106, Rollo)
In respect to his third assignment of error Gulinao should have been convicted of the crime of theft
under Art. 308, Revised Penal Code, not robbery with the use of violence against or intimidation of a
person under par. 5, Art. 294 Revised Penal Code. As the trial court itself noted, on the basis of
Patino's testimony, the taking of the ring of Dr. Chua was merely an afterthought. The force
employed in the killing of Dr. Chua has no bearing on the taking of his ring.
Gulinao's contention in his fourth assignment of error that there was no proof of intent to gain in the
taking of Dr. Chua's car is bereft of merit. Intent to gain, being an internal act, is presumed from the
unlawful taking of the car. This presumption was unrebutted.
IN VIEW OF THE FOREGOING, the appealed Decision dated Nov. 23,1987, with respect to the
cases for "Illegal Possession of Firearm with Murder" (Crim. Case No. 8016-V-87) and "Carnapping"
(Crim. Case No. 8048-V-87) is AFFIRMED in toto, it being in accordance with the law and evidence.
With respect to the case for "Robbery" (Crim. Case No. 8017V- 871), par. 2 of the dispositive portion
of the appealed Decision is MODIFIED to the effect that Gulinao is convicted of the crime of Theft
and sentenced to suffer the indeterminate penalty of 3 years, 6 months and 21 days to 4 years, 9
months and 10 days of prision correccional as minimum and 7 years, 4 months and 1 day to 8 years
and 8 months of prision mayor, as maximum.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 77429 January 29, 1990

LAURO SANTOS, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
Puruganan, Chato, Chato & Tan for petitioner,

CRUZ, J.:
The factual findings of the lower courts are as a matter of policy not disturbed by this Court in the
absence of any of the recognized exceptions that will justify reversal. As none of these exceptions
appears in the case at bar, the petitioner's conviction, based on such findings, must be affirmed.
The evidence of the prosecution is, in the view of the Court, conclusive of the petitioner's guilt.
Sometime in November 1980, the complaining witness, Encarnacion Pealosa, entrusted her car, a
1976 Ford Escort, to herein petitioner Lauro Santos for repair of the carburetor. The work was to
cost P300.00. A week later, Santos persuaded her to have her car repainted by him for P6,500.00,
within a period of two months. 1
After two months, Pealosa went to the petitioner's repair shop at MacArthur Highway, Malabon, to
retrieve her car. Santos refused to deliver the vehicle unless she paid him P634.60 for the repairs.
As she did not have the money then, she left the shop to get the needed payment. Upon her return,
she could not find Santos although she waited five hours for him. She went back to the shop several
times thereafter but to no avail. 2
Pealosa was to learn later that Santos had abandoned his shop in Malabon. Unable to recover her
car, she filed a complaint for carnapping against Santos with the Constabulary Highway Patrol
Group in Camp Crame. The case was dismissed when the petitioner convinced the military
authorities that the complainant had sold the vehicle to him. He submitted for this purpose a Deed of
Sale with Right of Repurchase in his favor. 3
This notwithstanding, an information for estafa on Pealosa's complaint was filed against Santos in
the Regional Trial Court of Quezon City on October 26,1982. After trial, the accused was found guilty
as charged and sentenced to "an indeterminate penalty of from four (4) months and one (1) day as
minimum to four (4) years and two (2) months as maximum, both of prision correccional, to
indemnify the offended party in the amount of P38,000.00 which is the value of the car without
subsidiary imprisonment in case of insolvency and with costs." 4
On appeal, the conviction was affirmed but Santos was held guilty of qualified theft and not estafa.
The dispositive portion of the decision of the respondent court 5 read:
WHEREFORE, the judgment appealed from is MODIFIED: the offense committed by
the appellant is qualified theft and he is hereby sentenced to an indeterminate
penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor, as
minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion
temporal, as maximum; to indemnify Encarnacion Pealosa the sum of P20,000.00
without subsidiary imprisonment in case of insolvency; and, to pay the costs.

In his defense, the petitioner now quibbles about the supposed inconsistences of the complaining
witness that he says make her testimony questionable. Our ruling is that such inconsistencies are
minor lapses and do not impair Pealosa's credibility as a whole. Santos also wonders why, if it is
true that she had asked him to repair and repaint her car, she had not even made an advance
payment. One reason could be that he himself did not ask for such advance, considering that they
were members of the same bowling team. There is even the suggestion that he was smitten with her
although she says she rejected his suit. 6
The petitioner's main reliance, though, is on the Deed of Sale with Right of Repurchase which he
submitted at the trial to prove that Pealosa had sold the car to him and now had no claim to it.
The lower courts were correct in rejecting this shoddy evidence. It is a wonder that it was even
considered at all when the case filed in Camp Crame was dismissed.
A cursory look at this alleged document will show that it is spurious. There are alterations and
deletions that are not even initialed to authenticate the changes. Two entire paragraphs are
cancelled. The name and address of the supposed original vendee are crossed out and those of the
petitioner are written in place of the deletions. Moreover, the so-called deed is not notarized.
It would have been so easy to re-type the one-page document to express clearly and indubitably the
intent of the parties and then have it properly acknowledged. But this was not done. The petitioner
insists that the document was originally intended to be concluded between Pealosa and Domingo
Corsiga but was hastily changed to make Santos the buyer and mortgagee. 7 Surely a vendee would
not be so rash as to depend for his title to the thing purchased on such a shabby and dubious deed of
sale.

The petitioner also makes much of the fact that Pealosa did not even sign a job order or get a
receipt when she delivered her car to him for repairs. In fact, she did not even check where his repair
shop was. He forgets that he was no less trusting either. He himself does not explain why the
amount of P6,000.00 he allegedly gave for the car was not acknowledged by Pealosa in the Deed
of Sale or in a separate instrument. There was no proof at all of such payment.
Given these circumstances, we find it easier to believe that Pealosa had signed the original
document with the intention of selling her car to Domingo Corsiga, the party first named therein, but
later changed her mind. She left the unused document in her car and Santos, chancing upon it when
the vehicle was delivered to him, decided to modify it to suit his purposes.
Besides, as the respondent court correctly observed, why would Santos still demand from Pealosa
the cost of the repairs on the car if he claims he had already bought it from her? And there is also
the glaring fact that Santos was unable to register the car in his name despite the lapse of all of two
years after his alleged purchase of the vehicle.
In his supplemental memorandum, the petitioner says he could not register the car because it had
merely been mortgaged to him and he had to wait until the expiration of the period of
repurchase. 8 Yet, during his cross-examination on March 5, 1984, Santos repeatedly declared that the
car belonged to him and that the right of repurchase expired after two months from November or
December 1980. He also said that rather than register it, he could cannibalize the car and sell the spare
parts separately at greater profit. 9

The Court also notes that, according to Santos, he accompanied Pealosa to redeem her car from
Corsiga and that he himself gave her the money for such redemption in Corsiga's
presence. 10 Having made that allegation, it was for the petitioner himself to present Corsiga as his

witness to corroborate that statement. Santos did not, and so failed to prove what was, to begin with, an
improbable defense. Ei incumbit probatio ui dicit.

Although the information charged the petitioner with estafa, the crime committed was theft. It is
settled that what controls is not the designation of the offense but the description thereof as alleged
in the information. 11 And as described therein, the offense imputed to Santos contains all the essential
elements of theft, to wit: (1) that there be a taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished without the use of violence or intimidation against
persons or force upon things. 12

Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino in his book
on the Revised Penal Code, "The principal distinction between the two crimes is that in theft the
thing is taken while in estafa the accused receives the property and converts it to his own use or
benefit. However, there may be theft even if the accused has possession of the property. If he was
entrusted only with the material or physical (natural) or de factopossession of the thing, his
misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his
conversion of the same constitutes embezzlement or estafa." 13
The petitioner argues that there was no intent to gain at the time of the taking of the vehicle and so
no crime was committed. In U.S. v. De Vera, 14 we held that the subsequent appropriation by the
accused of the thing earlier delivered to him supplied the third element that made the crime theft instead
of estafa.

Illustrating, the Court declared:

... let us suppose that A, a farmer in the Province of Bulacan, agrees to sell B a
certain quantity of rice at a certain price per picul. A ships several sacks of the grain
which B receives in his warehouse. If, prior to the measuring required before the
payment of the agreed price, B takes a certain quantity of rice from the different
sacks, there can be no doubt that he is guilty of the crime of theft. Now, it may be
asked: Did not B receive the sacks of rice shipped to him by A?-Yes. And did A
voluntarily deliver the sacks of rice which he owned by shipping them to B?-Yes Was
the taking of the rice by B from the different sacks done with A's consent?- No.
This shows, to our mind, that the theory of the defense is untenable, according to
which, when the thing is received and then appropriated or converted to one's own
use without the consent of the owner, the crime committed is not that of theft.
It was erroneous for the respondent court to hold the petitioner guilty of qualified theft because the
fact that the object of the crime was a car was not alleged in the information as a qualifying
circumstance. 15 Santos would have had reason to argue that he had not been properly informed of the
nature and cause of the accusation against him, as qualified theft carries a higher penalty.

But although not pleaded and so not considered qualifying, the same circumstance may be
considered aggravating, having been proved at the trial. 16 Hence the imposable penalty for the theft,
there being no other modifying circumstances, should be in the maximum degree.

According to the Solicitor General:

The value of the car is P38,000.00. Under Article 309 of the Revised Penal Code, if
the value of the thing stolen exceeds P22,000.00, the penalty should be the

maximum period of the prescribed penalty plus one year for each additional
P10,000.00. Thus the imposable penalty is the maximum of prision mayor with a
range of TEN (10) YEARS and ONE (1) DAY to TWELVE (12) YEARS plus an
additional ONE (1) YEAR for every P10,000.00 in excess of P22,000.00, raising the
maximum penalty into Reclusion Temporal in the minimum period.
Applying the Indeterminate Sentence Law, there being one aggravating and no
mitigating circumstance the imposable penalty recommended is from SIX (6) YEARS
and ONE (1) DAY of prision mayor to THIRTEEN (13) YEARS of reclusion temporal.
We approve the above observations and sentence the petitioner accordingly,
WHEREFORE, the appealed decision is AFFIRMED as herein modified. The petitioner is declared
guilty of theft and sentenced to from six (6) years and one (1) day of prision mayor to thirteen (13)
years of reclusion temporal. He is also ordered to restore the car in question to the private
respondent, or if this is no longer possible, to pay her the value thereof in the amount of P38,000.00,
SO ORDERED.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 155076

February 27, 2006

LUIS MARCOS P. LAUREL, Petitioner,

vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, Makati City, Branch
150, PEOPLE OF THE PHILIPPINES& PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CAG.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar, Regional Trial Court
(RTC), Makati City, Branch 150, which denied the "Motion to Quash (With Motion to Defer
Arraignment)" in Criminal Case No. 99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a legislative franchise to
render local and international telecommunication services under Republic Act No. 7082.2 Under said
law, PLDT is authorized to establish, operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting, receiving and switching stations, for both
domestic and international calls. For this purpose, it has installed an estimated 1.7 million telephone
lines nationwide. PLDT also offers other services as authorized by Certificates of Public
Convenience and Necessity (CPCN) duly issued by the National Telecommunications Commission

(NTC), and operates and maintains an International Gateway Facility (IGF). The PLDT network is
thus principally composed of the Public Switch Telephone Network (PSTN), telephone handsets
and/or telecommunications equipment used by its subscribers, the wires and cables linking said
telephone handsets and/or telecommunications equipment, antenna, the IGF, and other
telecommunications equipment which provide interconnections.3
1avv phil.net

PLDT alleges that one of the alternative calling patterns that constitute network fraud and violate its
network integrity is that which is known as International Simple Resale (ISR). ISR is a method of
routing and completing international long distance calls using International Private Leased Lines
(IPL), cables, antenna or air wave or frequency, which connect directly to the local or domestic
exchange facilities of the terminating country (the country where the call is destined). The IPL is
linked to switching equipment which is connected to a PLDT telephone line/number. In the process,
the calls bypass the IGF found at the terminating country, or in some instances, even those from the
originating country.4
One such alternative calling service is that offered by Baynet Co., Ltd. (Baynet) which sells "Bay
Super Orient Card" phone cards to people who call their friends and relatives in the Philippines. With
said card, one is entitled to a 27-minute call to the Philippines for about 37.03 per minute. After
dialing the ISR access number indicated in the phone card, the ISR operator requests the subscriber
to give the PIN number also indicated in the phone card. Once the callers identity (as purchaser of
the phone card) is confirmed, the ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made through the IPL never pass the toll
center of IGF operators in the Philippines. Using the local line, the Baynet card user is able to place
a call to any point in the Philippines, provided the local line is National Direct Dial (NDD) capable.5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to course its incoming
international long distance calls from Japan. The IPL is linked to switching equipment, which is then
connected to PLDT telephone lines/numbers and equipment, with Baynet as subscriber. Through the
use of the telephone lines and other auxiliary equipment, Baynet is able to connect an international
long distance call from Japan to any part of the Philippines, and make it appear as a call originating
from Metro Manila. Consequently, the operator of an ISR is able to evade payment of access,
termination or bypass charges and accounting rates, as well as compliance with the regulatory
requirements of the NTC. Thus, the ISR operator offers international telecommunication services at
a lower rate, to the damage and prejudice of legitimate operators like PLDT.6
PLDT pointed out that Baynet utilized the following equipment for its ISR activities: lines, cables, and
antennas or equipment or device capable of transmitting air waves or frequency, such as an IPL and
telephone lines and equipment; computers or any equipment or device capable of accepting
information applying the prescribed process of the information and supplying the result of this
process; modems or any equipment or device that enables a data terminal equipment such as
computers to communicate with other data terminal equipment via a telephone line; multiplexers or
any equipment or device that enables two or more signals from different sources to pass through a
common cable or transmission line; switching equipment, or equipment or device capable of
connecting telephone lines; and software, diskettes, tapes or equipment or device used for recording
and storing information.7
PLDT also discovered that Baynet subscribed to a total of 123 PLDT telephone
lines/numbers.8 Based on the Traffic Study conducted on the volume of calls passing through
Baynets ISR network which bypass the IGF toll center, PLDT incurred an estimated monthly loss of
P10,185,325.96.9 Records at the Securities and Exchange Commission (SEC) also revealed that
Baynet was not authorized to provide international or domestic long distance telephone service in
the country. The following are its officers: Yuji Hijioka, a Japanese national (chairman of the board of

directors); Gina C. Mukaida, a Filipina (board member and president); Luis Marcos P. Laurel, a
Filipino (board member and corporate secretary); Ricky Chan Pe, a Filipino (board member and
treasurer); and Yasushi Ueshima, also a Japanese national (board member).
Upon complaint of PLDT against Baynet for network fraud, and on the strength of two search
warrants10 issued by the RTC of Makati, Branch 147, National Bureau of Investigation (NBI) agents
searched its office at the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on November 8,
1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J. Villegas were
arrested by NBI agents while in the act of manning the operations of Baynet. Seized in the premises
during the search were numerous equipment and devices used in its ISR activities, such as
multiplexers, modems, computer monitors, CPUs, antenna, assorted computer peripheral cords and
microprocessors, cables/wires, assorted PLDT statement of accounts, parabolic antennae and
voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued a Resolution11 on
January 28, 2000, finding probable cause for theft under Article 308 of the Revised Penal Code and
Presidential Decree No. 40112 against the respondents therein, including Laurel.
On February 8, 2000, State Prosecutor Calo filed an Information with the RTC of Makati City
charging Matsuura, Miyake, Lacson and Villegas with theft under Article 308 of the Revised Penal
Code. After conducting the requisite preliminary investigation, the State Prosecutor filed an
Amended Information impleading Laurel (a partner in the law firm of Ingles, Laurel, Salinas, and,
until November 19, 1999, a member of the board of directors and corporate secretary of Baynet),
and the other members of the board of directors of said corporation, namely, Yuji Hijioka, Yasushi
Ueshima, Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the Revised Penal
Code. The inculpatory portion of the Amended Information reads:
On or about September 10-19, 1999, or prior thereto, in Makati City, and within the jurisdiction of this
Honorable Court, the accused, conspiring and confederating together and all of them mutually
helping and aiding one another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously
take, steal and use the international long distance calls belonging to PLDT by conducting
International Simple Resale (ISR), which is a method of routing and completing international long
distance calls using lines, cables, antennae, and/or air wave frequency which connect directly to the
local or domestic exchange facilities of the country where the call is destined, effectively stealing this
business from PLDT while using its facilities in the estimated amount of P20,370,651.92 to the
damage and prejudice of PLDT, in the said amount.
CONTRARY TO LAW.13
Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the ground that the
factual allegations in the Amended Information do not constitute the felony of theft under Article 308
of the Revised Penal Code. He averred that the Revised Penal Code, or any other special penal law
for that matter, does not prohibit ISR operations. He claimed that telephone calls with the use of
PLDT telephone lines, whether domestic or international, belong to the persons making the call, not
to PLDT. He argued that the caller merely uses the facilities of PLDT, and what the latter owns are
the telecommunication infrastructures or facilities through which the call is made. He also asserted
that PLDT is compensated for the callers use of its facilities by way of rental; for an outgoing
overseas call, PLDT charges the caller per minute, based on the duration of the call. Thus, no
personal property was stolen from PLDT. According to Laurel, the P20,370,651.92 stated in the
Information, if anything, represents the rental for the use of PLDT facilities, and not the value of
anything owned by it. Finally, he averred that the allegations in the Amended Information are already

subsumed under the Information for violation of Presidential Decree (P.D.) No. 401 filed and pending
in the Metropolitan Trial Court of Makati City, docketed as Criminal Case No. 276766.
The prosecution, through private complainant PLDT, opposed the motion,14 contending that the
movant unlawfully took personal property belonging to it, as follows: 1) intangible telephone services
that are being offered by PLDT and other telecommunication companies, i.e., the connection and
interconnection to their telephone lines/facilities; 2) the use of those facilities over a period of time;
and 3) the revenues derived in connection with the rendition of such services and the use of such
facilities.15
The prosecution asserted that the use of PLDTs intangible telephone services/facilities allows
electronic voice signals to pass through the same, and ultimately to the called partys number. It
averred that such service/facility is akin to electricity which, although an intangible property, may,
nevertheless, be appropriated and be the subject of theft. Such service over a period of time for a
consideration is the business that PLDT provides to its customers, which enables the latter to send
various messages to installed recipients. The service rendered by PLDT is akin to merchandise
which has specific value, and therefore, capable of appropriation by another, as in this case, through
the ISR operations conducted by the movant and his co-accused.
The prosecution further alleged that "international business calls and revenues constitute personal
property envisaged in Article 308 of the Revised Penal Code." Moreover, the intangible telephone
services/facilities belong to PLDT and not to the movant and the other accused, because they have
no telephone services and facilities of their own duly authorized by the NTC; thus, the taking by the
movant and his co-accused of PLDT services was with intent to gain and without the latters consent.
The prosecution pointed out that the accused, as well as the movant, were paid in exchange for their
illegal appropriation and use of PLDTs telephone services and facilities; on the other hand, the
accused did not pay a single centavo for their illegal ISR operations. Thus, the acts of the accused
were akin to the use of a "jumper" by a consumer to deflect the current from the house electric
meter, thereby enabling one to steal electricity. The prosecution emphasized that its position is
fortified by the Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 970925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which were issued on
August 14, 2000 finding probable cause for theft against the respondents therein.
On September 14, 2001, the RTC issued an Order16 denying the Motion to Quash the Amended
Information. The court declared that, although there is no law that expressly prohibits the use of ISR,
the facts alleged in the Amended Information "will show how the alleged crime was committed by
conducting ISR," to the damage and prejudice of PLDT.
Laurel filed a Motion for Reconsideration17 of the Order, alleging that international long distance calls
are not personal property, and are not capable of appropriation. He maintained that business or
revenue is not considered personal property, and that the prosecution failed to adduce proof of its
existence and the subsequent loss of personal property belonging to another. Citing the ruling of the
Court in United States v. De Guzman,18Laurel averred that the case is not one with telephone calls
which originate with a particular caller and terminates with the called party. He insisted that
telephone calls are considered privileged communications under the Constitution and cannot be
considered as "the property of PLDT." He further argued that there is no kinship between telephone
calls and electricity or gas, as the latter are forms of energy which are generated and consumable,
and may be considered as personal property because of such characteristic. On the other hand, the
movant argued, the telephone business is not a form of energy but is an activity.

In its Order19 dated December 11, 2001, the RTC denied the movants Motion for Reconsideration.
This time, it ruled that what was stolen from PLDT was its "business" because, as alleged in the
Amended Information, the international long distance calls made through the facilities of PLDT
formed part of its business. The RTC noted that the movant was charged with stealing the business
of PLDT. To support its ruling, it cited Strochecker v. Ramirez,20 where the Court ruled that interest in
business is personal property capable of appropriation. It further declared that, through their ISR
operations, the movant and his co-accused deprived PLDT of fees for international long distance
calls, and that the ISR used by the movant and his co-accused was no different from the "jumper"
used for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC. He alleged that
the respondent judge gravely abused his discretion in denying his Motion to Quash the Amended
Information.21 As gleaned from the material averments of the amended information, he was charged
with stealing the international long distance calls belonging to PLDT, not its business. Moreover, the
RTC failed to distinguish between the business of PLDT (providing services for international long
distance calls) and the revenues derived therefrom. He opined that a "business" or its revenues
cannot be considered as personal property under Article 308 of the Revised Penal Code, since a
"business" is "(1) a commercial or mercantile activity customarily engaged in as a means of
livelihood and typically involving some independence of judgment and power of decision; (2) a
commercial or industrial enterprise; and (3) refers to transactions, dealings or intercourse of any
nature." On the other hand, the term "revenue" is defined as "the income that comes back from an
investment (as in real or personal property); the annual or periodical rents, profits, interests, or
issues of any species of real or personal property."22
Laurel further posited that an electric companys business is the production and distribution of
electricity; a gas companys business is the production and/or distribution of gas (as fuel); while a
water companys business is the production and distribution of potable water. He argued that the
"business" in all these cases is the commercial activity, while the goods and merchandise are the
products of such activity. Thus, in prosecutions for theft of certain forms of energy, it is the electricity
or gas which is alleged to be stolen and not the "business" of providing electricity or gas. However,
since a telephone company does not produce any energy, goods or merchandise and merely
renders a service or, in the words of PLDT, "the connection and interconnection to their telephone
lines/facilities," such service cannot be the subject of theft as defined in Article 308 of the Revised
Penal Code.23
He further declared that to categorize "business" as personal property under Article 308 of the
Revised Penal Code would lead to absurd consequences; in prosecutions for theft of gas, electricity
or water, it would then be permissible to allege in the Information that it is the gas business, the
electric business or the water business which has been stolen, and no longer the merchandise
produced by such enterprise.24
Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,25 where it was
ruled that the Revised Penal Code, legislated as it was before present technological advances were
even conceived, is not adequate to address the novel means of "stealing" airwaves or airtime. In
said resolution, it was noted that the inadequacy prompted the filing of Senate Bill 2379 (sic) entitled
"The Anti-Telecommunications Fraud of 1997" to deter cloning of cellular phones and other forms of
communications fraud. The said bill "aims to protect in number (ESN) (sic) or Capcode, mobile
identification number (MIN), electronic-international mobile equipment identity (EMEI/IMEI), or
subscriber identity module" and "any attempt to duplicate the data on another cellular phone without
the consent of a public telecommunications entity would be punishable by law."26 Thus, Laurel
concluded, "there is no crime if there is no law punishing the crime."

On August 30, 2002, the CA rendered judgment dismissing the petition.27 The appellate court ruled
that a petition for certiorari under Rule 65 of the Rules of Court was not the proper remedy of the
petitioner. On the merits of the petition, it held that while business is generally an activity
which is abstract and intangible in form, it is nevertheless considered "property" under Article 308 of
the Revised Penal Code. The CA opined that PLDTs business of providing international calls is
personal property which may be the object of theft, and cited United States v. Carlos28 to support
such conclusion. The tribunal also cited Strochecker v. Ramirez,29 where this Court ruled that onehalf interest in a days business is personal property under Section 2 of Act No. 3952, otherwise
known as the Bulk Sales Law. The appellate court held that the operations of the ISR are not
subsumed in the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL PROPERTY
ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE "INTERNATIONAL LONG
DISTANCE CALLS" BUT THE "BUSINESS OF PLDT."
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM "BUSINESS" IS
PERSONAL PROPERTY WITHIN THE MEANING OF ART. 308 OF THE REVISED PENAL
CODE.30
Petitioner avers that the petition for a writ of certiorari may be filed to nullify an interlocutory order of
the trial court which was issued with grave abuse of discretion amounting to excess or lack of
jurisdiction. In support of his petition before the Court, he reiterates the arguments in his pleadings
filed before the CA. He further claims that while the right to carry on a business or an interest or
participation in business is considered property under the New Civil Code, the term "business,"
however, is not. He asserts that the Philippine Legislature, which approved the Revised Penal Code
way back in January 1, 1932, could not have contemplated to include international long distance
calls and "business" as personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG) maintains that the amended
information clearly states all the essential elements of the crime of theft. Petitioners interpretation as
to whether an "international long distance call" is personal property under the law is inconsequential,
as a reading of the amended information readily reveals that specific acts and circumstances were
alleged charging Baynet, through its officers, including petitioner, of feloniously taking, stealing and
illegally using international long distance calls belonging to respondent PLDT by conducting ISR
operations, thus, "routing and completing international long distance calls using lines, cables,
antenna and/or airwave frequency which connect directly to the local or domestic exchange facilities
of the country where the call is destined." The OSG maintains that the international long distance
calls alleged in the amended information should be construed to mean "business" of PLDT, which,
while abstract and intangible in form, is personal property susceptible of appropriation.31 The OSG
avers that what was stolen by petitioner and his co-accused is the business of PLDT providing
international long distance calls which, though intangible, is personal property of the PLDT.32
For its part, respondent PLDT asserts that personal property under Article 308 of the Revised Penal
Code comprehends intangible property such as electricity and gas which are valuable articles for
merchandise, brought and sold like other personal property, and are capable of appropriation. It
insists that the business of international calls and revenues constitute personal property because the
same are valuable articles of merchandise. The respondent reiterates that international calls involve
(a) the intangible telephone services that are being offered by it, that is, the connection and

interconnection to the telephone network, lines or facilities; (b) the use of its telephone network, lines
or facilities over a period of time; and (c) the income derived in connection therewith.33
PLDT further posits that business revenues or the income derived in connection with the rendition of
such services and the use of its telephone network, lines or facilities are personal properties under
Article 308 of the Revised Penal Code; so is the use of said telephone services/telephone network,
lines or facilities which allow electronic voice signals to pass through the same and ultimately to the
called partys number. It is akin to electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDTs telephone network, lines,
or facilities over a period of time for consideration is the business that it provides to its customers,
which enables the latter to send various messages to intended recipients. Such use over a period of
time is akin to merchandise which has value and, therefore, can be appropriated by another.
According to respondent PLDT, this is what actually happened when petitioner Laurel and the other
accused below conducted illegal ISR operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for certiorari is the proper
remedy of the petitioner in the Court of Appeals; (b) whether or not international telephone calls
using Bay Super Orient Cards through the telecommunication services provided by PLDT for such
calls, or, in short, PLDTs business of providing said telecommunication services, are proper
subjects of theft under Article 308 of the Revised Penal Code; and (c) whether or not the trial court
committed grave abuse of discretion amounting to excess or lack of jurisdiction in denying the
motion of the petitioner to quash the amended information.
On the issue of whether or not the petition for certiorari instituted by the petitioner in the CA is
proper, the general rule is that a petition for certiorari under Rule 65 of the Rules of Court, as
amended, to nullify an order denying a motion to quash the Information is inappropriate because the
aggrieved party has a remedy of appeal in the ordinary course of law. Appeal and certiorari are
mutually exclusive of each other. The remedy of the aggrieved party is to continue with the case in
due course and, when an unfavorable judgment is rendered, assail the order and the decision on
appeal. However, if the trial court issues the order denying the motion to quash the Amended
Information with grave abuse of discretion amounting to excess or lack of jurisdiction, or if such order
is patently erroneous, or null and void for being contrary to the Constitution, and the remedy of
appeal would not afford adequate and expeditious relief, the accused may resort to the extraordinary
remedy of certiorari.35 A special civil action for certiorari is also available where there are special
circumstances clearly demonstrating the inadequacy of an appeal. As this Court held in Bristol
Myers Squibb (Phils.), Inc. v. Viloria:36
Nonetheless, the settled rule is that a writ of certiorari may be granted in cases where, despite
availability of appeal after trial, there is at least a prima facie showing on the face of the petition and
its annexes that: (a) the trial court issued the order with grave abuse of discretion amounting to lack
of or in excess of jurisdiction; (b) appeal would not prove to be a speedy and adequate remedy; (c)
where the order is a patent nullity; (d) the decision in the present case will arrest future litigations;
and (e) for certain considerations such as public welfare and public policy.37
In his petition for certiorari in the CA, petitioner averred that the trial court committed grave abuse of
its discretion amounting to excess or lack of jurisdiction when it denied his motion to quash the
Amended Information despite his claim that the material allegations in the Amended Information do
not charge theft under Article 308 of the Revised Penal Code, or any offense for that matter. By so
doing, the trial court deprived him of his constitutional right to be informed of the nature of the charge
against him. He further averred that the order of the trial court is contrary to the constitution and is,

thus, null and void. He insists that he should not be compelled to undergo the rigors and tribulations
of a protracted trial and incur expenses to defend himself against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act or omission constituting an
offense38 and must allege facts establishing conduct that a penal statute makes criminal;39 and
describes the property which is the subject of theft to advise the accused with reasonable certainty
of the accusation he is called upon to meet at the trial and to enable him to rely on the judgment
thereunder of a subsequent prosecution for the same offense.40 It must show, on its face, that if the
alleged facts are true, an offense has been committed. The rule is rooted on the constitutional right
of the accused to be informed of the nature of the crime or cause of the accusation against him. He
cannot be convicted of an offense even if proven unless it is alleged or necessarily included in the
Information filed against him.
As a general prerequisite, a motion to quash on the ground that the Information does not constitute
the offense charged, or any offense for that matter, should be resolved on the basis of said
allegations whose truth and veracity are hypothetically committed;41 and on additional facts admitted
or not denied by the prosecution.42 If the facts alleged in the Information do not constitute an offense,
the complaint or information should be quashed by the court.43
We have reviewed the Amended Information and find that, as mentioned by the petitioner, it does
not contain material allegations charging the petitioner of theft of personal property under Article 308
of the Revised Penal Code. It, thus, behooved the trial court to quash the Amended Information. The
Order of the trial court denying the motion of the petitioner to quash the Amended Information is a
patent nullity.
On the second issue, we find and so hold that the international telephone calls placed by Bay Super
Orient Card holders, the telecommunication services provided by PLDT and its business of providing
said services are not personal properties under Article 308 of the Revised Penal Code. The
construction by the respondents of Article 308 of the said Code to include, within its coverage, the
aforesaid international telephone calls, telecommunication services and business is contrary to the
letter and intent of the law.
The rule is that, penal laws are to be construed strictly. Such rule is founded on the tenderness of
the law for the rights of individuals and on the plain principle that the power of punishment is vested
in Congress, not in the judicial department. It is Congress, not the Court, which is to define a crime,
and ordain its punishment.44 Due respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal laws where a "narrow
interpretation" is appropriate. The Court must take heed to language, legislative history and purpose,
in order to strictly determine the wrath and breath of the conduct the law forbids.45However, when the
congressional purpose is unclear, the court must apply the rule of lenity, that is, ambiguity
concerning the ambit of criminal statutes should be resolved in favor of lenity.46
Penal statutes may not be enlarged by implication or intent beyond the fair meaning of the language
used; and may not be held to include offenses other than those which are clearly described,
notwithstanding that the Court may think that Congress should have made them more
comprehensive.47 Words and phrases in a statute are to be construed according to their common
meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the principle that a
case which is within the reason or

mischief of a statute is within its provision, so far as to punish a crime not enumerated in the statute
because it is of equal atrocity, or of kindred character with those which are enumerated.48 When
interpreting a criminal statute that does not explicitly reach the conduct in question, the Court should
not base an expansive reading on inferences from subjective and variable understanding.49
Article 308 of the Revised Penal Code defines theft as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but
without violence, against or intimidation of persons nor force upon things, shall take personal
property of another without the latters consent.
The provision was taken from Article 530 of the Spanish Penal Code which reads:
1. Los que con nimo de lucrarse, y sin violencia o intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.50
For one to be guilty of theft, the accused must have an intent to steal (animus furandi) personal
property, meaning the intent to deprive another of his ownership/lawful possession of personal
property which intent is apart from and concurrently with the general criminal intent which is an
essential element of a felony of dolo (dolus malus).
An information or complaint for simple theft must allege the following elements: (a) the taking of
personal property; (b) the said property belongs to another; (c) the taking be done with intent to gain;
and (d) the taking be accomplished without the use of violence or intimidation of person/s or force
upon things.51
One is apt to conclude that "personal property" standing alone, covers both tangible and intangible
properties and are subject of theft under the Revised Penal Code. But the words "Personal property"
under the Revised Penal Code must be considered in tandem with the word "take" in the law. The
statutory definition of "taking" and movable property indicates that, clearly, not all personal properties
may be the proper subjects of theft. The general rule is that, only movable properties which have
physical or material existence and susceptible of occupation by another are proper objects of
theft.52 As explained by Cuelo Callon: "Cosa juridicamente es toda sustancia corporal, material,
susceptible de ser aprehendida que tenga un valor cualquiera."53
According to Cuello Callon, in the context of the Penal Code, only those movable properties which
can be taken and carried from the place they are found are proper subjects of theft. Intangible
properties such as rights and ideas are not subject of theft because the same cannot be "taken" from
the place it is found and is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser objeto de hurto. La sustraccin de cosas
inmuebles y la cosas incorporales (v. gr., los derechos, las ideas) no puede integrar este delito,
pues no es posible asirlas, tomarlas, para conseguir su apropiacin. El Codigo emplea la expresin
"cosas mueble" en el sentido de cosa que es susceptible de ser llevada del lugar donde se
encuentra, como dinero, joyas, ropas, etctera, asi que su concepto no coincide por completo con el
formulado por el Codigo civil (arts. 335 y 336).54
Thus, movable properties under Article 308 of the Revised Penal Code should be distinguished from
the rights or interests to which they relate. A naked right existing merely in contemplation of law,
although it may be very valuable to the person who is entitled to exercise it, is not the subject of theft
or larceny.55 Such rights or interests are intangible and cannot be "taken" by another. Thus, right to
produce oil, good will or an interest in business, or the right to engage in business, credit or

franchise are properties. So is the credit line represented by a credit card. However, they are not
proper subjects of theft or larceny because they are without form or substance, the mere "breath" of
the Congress. On the other hand, goods, wares and merchandise of businessmen and credit cards
issued to them are movable properties with physical and material existence and may be taken by
another; hence, proper subjects of theft.
There is "taking" of personal property, and theft is consummated when the offender unlawfully
acquires possession of personal property even if for a short time; or if such property is under the
dominion and control of the thief. The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property adverse to the rights of the owner or
the lawful possessor thereof.56 It is not necessary that the property be actually carried away out of
the physical possession of the lawful possessor or that he should have made his escape with
it.57 Neither asportation nor actual manual possession of property is required. Constructive
possession of the thief of the property is enough.58
The essence of the element is the taking of a thing out of the possession of the owner without his
privity and consent and without animus revertendi.59
Taking may be by the offenders own hands, by his use of innocent persons without any felonious
intent, as well as any mechanical device, such as an access device or card, or any agency, animate
or inanimate, with intent to gain. Intent to gain includes the unlawful taking of personal property for
the purpose of deriving utility, satisfaction, enjoyment and pleasure.60
We agree with the contention of the respondents that intangible properties such as electrical energy
and gas are proper subjects of theft. The reason for this is that, as explained by this Court in United
States v. Carlos61 and United States v. Tambunting,62 based on decisions of the Supreme Court of
Spain and of the courts in England and the United States of America, gas or electricity are capable
of appropriation by another other than the owner. Gas and electrical energy may be taken, carried
away and appropriated. In People v. Menagas,63 the Illinois State Supreme Court declared that
electricity, like gas, may be seen and felt. Electricity, the same as gas, is a valuable article of
merchandise, bought and sold like other personal property and is capable of appropriation by
another. It is a valuable article of merchandise, bought and sold like other personal property,
susceptible of being severed from a mass or larger quantity and of being transported from place to
place. Electrical energy may, likewise, be taken and carried away. It is a valuable commodity, bought
and sold like other personal property. It may be transported from place to place. There is nothing in
the nature of gas used for illuminating purposes which renders it incapable of being feloniously taken
and carried away.
In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of Appeals of New York held
that electric energy is manufactured and sold in determinate quantities at a fixed price, precisely as
are coal, kerosene oil, and gas. It may be conveyed to the premises of the consumer, stored in cells
of different capacity known as an accumulator; or it may be sent through a wire, just as gas or oil
may be transported either in a close tank or forced through a pipe. Having reached the premises of
the consumer, it may be used in any way he may desire, being, like illuminating gas, capable of
being transformed either into heat, light, or power, at the option of the purchaser. In Woods v.
People,65 the Supreme Court of Illinois declared that there is nothing in the nature of gas used for
illuminating purposes which renders it incapable of being feloniously taken and carried away. It is a
valuable article of merchandise, bought and sold like other personal property, susceptible of being
severed from a mass or larger quantity and of being transported from place to place.
Gas and electrical energy should not be equated with business or services provided by business
entrepreneurs to the public. Business does not have an exact definition. Business is referred as that

which occupies the time, attention and labor of men for the purpose of livelihood or profit. It
embraces everything that which a person can be employed.66 Business may also mean employment,
occupation or profession. Business is also defined as a commercial activity for gain benefit or
advantage.67 Business, like services in business, although are properties, are not proper subjects of
theft under the Revised Penal Code because the same cannot be "taken" or "occupied." If it were
otherwise, as claimed by the respondents, there would be no juridical difference between the taking
of the business of a person or the services provided by him for gain, vis--vis, the taking of goods,
wares or merchandise, or equipment comprising his business.68 If it was its intention to include
"business" as personal property under Article 308 of the Revised Penal Code, the Philippine
Legislature should have spoken in language that is clear and definite: that business is personal
property under Article 308 of the Revised Penal Code.69
We agree with the contention of the petitioner that, as gleaned from the material averments of the
Amended Information, he is charged of "stealing the international long distance calls belonging to
PLDT" and the use thereof, through the ISR. Contrary to the claims of the OSG and respondent
PLDT, the petitioner is not charged of stealing P20,370,651.95 from said respondent. Said amount
of P20,370,651.95 alleged in the Amended Information is the aggregate amount of access,
transmission or termination charges which the PLDT expected from the international long distance
calls of the callers with the use of Baynet Super Orient Cards sold by Baynet Co. Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property
without the consent of the owner thereof, the Philippine legislature could not have contemplated the
human voice which is converted into electronic impulses or electrical current which are transmitted to
the party called through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its
coverage. When the Revised Penal Code was approved, on December 8, 1930, international
telephone calls and the transmission and routing of electronic voice signals or impulses emanating
from said calls, through the PSTN, IPL and ISR, were still non-existent. Case law is that, where a
legislative history fails to evidence congressional awareness of the scope of the statute claimed by
the respondents, a narrow interpretation of the law is more consistent with the usual approach to the
construction of the statute. Penal responsibility cannot be extended beyond the fair scope of the
statutory mandate.70
Respondent PLDT does not acquire possession, much less, ownership of the voices of the
telephone callers or of the electronic voice signals or current emanating from said calls. The human
voice and the electronic voice signals or current caused thereby are intangible and not susceptible of
possession, occupation or appropriation by the respondent PLDT or even the petitioner, for that
matter. PLDT merely transmits the electronic voice signals through its facilities and equipment.
Baynet Card Ltd., through its operator, merely intercepts, reroutes the calls and passes them to its
toll center. Indeed, the parties called receive the telephone calls from Japan.
In this modern age of technology, telecommunications systems have become so tightly merged with
computer systems that it is difficult to know where one starts and the other finishes. The telephone
set is highly computerized and allows computers to communicate across long distances.71 The
instrumentality at issue in this case is not merely a telephone but a telephone inexplicably linked to a
computerized communications system with the use of Baynet Cards sold by the Baynet Card Ltd.
The corporation uses computers, modems and software, among others, for its ISR.72
The conduct complained of by respondent PLDT is reminiscent of "phreaking" (a slang term for the
action of making a telephone system to do something that it normally should not allow by "making
the phone company bend over and grab its ankles"). A "phreaker" is one who engages in the act of
manipulating phones and illegally markets telephone services.73 Unless the phone company replaces
all its hardware, phreaking would be impossible to stop. The phone companies in North America

were impelled to replace all their hardware and adopted full digital switching system known as the
Common Channel Inter Office Signaling. Phreaking occurred only during the 1960s and 1970s,
decades after the Revised Penal Code took effect.
The petitioner is not charged, under the Amended Information, for theft of telecommunication or
telephone services offered by PLDT. Even if he is, the term "personal property" under Article 308 of
the Revised Penal Code cannot be interpreted beyond its seams so as to include
"telecommunication or telephone services" or computer services for that matter. The word "service"
has a variety of meanings dependent upon the context, or the sense in which it is used; and, in some
instances, it may include a sale. For instance, the sale of food by restaurants is usually referred to as
"service," although an actual sale is involved.74 It may also mean the duty or labor to be rendered by
one person to another; performance of labor for the benefit of another.75 In the case of PLDT, it is to
render local and international telecommunications services and such other services as authorized by
the CPCA issued by the NTC. Even at common law, neither time nor services may be taken and
occupied or appropriated.76A service is generally not considered property and a theft of service
would not, therefore, constitute theft since there can be no caption or asportation.77 Neither is the
unauthorized use of the equipment and facilities of PLDT by the petitioner theft under the
aforequoted provision of the Revised Penal Code.78
If it was the intent of the Philippine Legislature, in 1930, to include services to be the subject of theft,
it should have incorporated the same in Article 308 of the Revised Penal Code. The Legislature did
not. In fact, the Revised Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is to be proscribed, it must be by
special statute79 or an amendment of the Revised Penal Code. Several states in the United States,
such as New York, New Jersey, California and Virginia, realized that their criminal statutes did not
contain any provisions penalizing the theft of services and passed laws defining and penalizing theft
of telephone and computer services. The Pennsylvania Criminal Statute now penalizes theft of
services, thus:
(a) Acquisition of services. -(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he
knows are available only for compensation, by deception or threat, by altering or tampering with the
public utility meter or measuring device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining any unauthorized connection,
whether physically, electrically or inductively, to a distribution or transmission line, by attaching or
maintaining the attachment of any unauthorized device to any cable, wire or other component of an
electric, telephone or cable television system or to a television receiving set connected to a cable
television system, by making or maintaining any unauthorized modification or alteration to any
device installed by a cable television system, or by false token or other trick or artifice to avoid
payment for the service.
In the State of Illinois in the United States of America, theft of labor or services or use of property is
penalized:
(a) A person commits theft when he obtains the temporary use of property, labor or services of
another which are available only for hire, by means of threat or deception or knowing that such use
is without the consent of the person providing the property, labor or services.
In 1980, the drafters of the Model Penal Code in the United States of America arrived at the
conclusion that labor and services, including professional services, have not been included within

the traditional scope of the term "property" in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft of services, thus:
(1) A person is guilty of theft if he purposely obtains services which he knows are available only for
compensation, by deception or threat, or by false token or other means to avoid payment for the
service. "Services" include labor, professional service, transportation, telephone or other public
service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of
vehicles or other movable property. Where compensation for service is ordinarily paid immediately
upon the rendering of such service, as in the case of hotels and restaurants, refusal to pay or
absconding without payment or offer to pay gives rise to a presumption that the service was
obtained by deception as to intention to pay; (2) A person commits theft if, having control over the
disposition of services of others, to which he is not entitled, he knowingly diverts such services to his
own benefit or to the benefit of another not entitled thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its decision in Lund v.
Commonwealth,80declaring that neither time nor services may be taken and carried away and are not
proper subjects of larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which reads:
Computer time or services or data processing services or information or data stored in connection
therewith is hereby defined to be property which may be the subject of larceny under 18.2-95 or
18.2-96, or embezzlement under 18.2-111, or false pretenses under 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of Alabama of 1975 penalizes
theft of services:
"A person commits the crime of theft of services if: (a) He intentionally obtains services known by
him to be available only for compensation by deception, threat, false token or other means to avoid
payment for the services "
In the Philippines, Congress has not amended the Revised Penal Code to include theft of services or
theft of business as felonies. Instead, it approved a law, Republic Act No. 8484, otherwise known as
the Access Devices Regulation Act of 1998, on February 11, 1998. Under the law, an access device
means any card, plate, code, account number, electronic serial number, personal identification
number and other telecommunication services, equipment or instrumentalities-identifier or other
means of account access that can be used to obtain money, goods, services or any other thing of
value or to initiate a transfer of funds other than a transfer originated solely by paper instrument.
Among the prohibited acts enumerated in Section 9 of the law are the acts of obtaining money or
anything of value through the use of an access device, with intent to defraud or intent to gain and
fleeing thereafter; and of effecting transactions with one or more access devices issued to another
person or persons to receive payment or any other thing of value. Under Section 11 of the law,
conspiracy to commit access devices fraud is a crime. However, the petitioner is not charged of
violation of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to any liability for violation of any
provisions of the Revised Penal Code inclusive of theft under Rule 308 of the Revised Penal Code
and estafa under Article 315 of the Revised Penal Code. Thus, if an individual steals a credit card
and uses the same to obtain services, he is liable of the following: theft of the credit card under
Article 308 of the Revised Penal Code; violation of Republic Act No. 8484; and estafa under Article
315(2)(a) of the Revised Penal Code with the service provider as the private complainant. The
petitioner is not charged of estafa before the RTC in the Amended Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000 provides:

Sec. 33. Penalties. The following Acts shall be penalized by fine and/or imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or interference in a computer
system/server or information and communication system; or any access in order to corrupt, alter,
steal, or destroy using a computer or other similar information and communication devices, without
the knowledge and consent of the owner of the computer or information and communications
system, including the introduction of computer viruses and the like, resulting on the corruption,
destruction, alteration, theft or loss of electronic data messages or electronic documents shall be
punished by a minimum fine of One hundred thousand pesos (P100,000.00) and a maximum
commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3)
years.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of the
Regional Trial Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE. The
Regional Trial Court is directed to issue an order granting the motion of the petitioner to quash the
Amended Information.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice

FIRST DIVISION

[G.R. No. 136394. February 15, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON NAAG y

LOBAS, accused-appellant.
DECISION
PUNO, J.:

One of the more interesting conceptual exercises in the field of Criminal Law is the
characterization of a crime. The challenge is not only to prove existence of its elements. The
challenge is to correctly categorize it. In the case at bar, a man sexually defiled then immediately
divested his woman-victim of her belongings. Is he guilty of the special complex crime of
Robbery with Rape or the separate crimes of Robbery and Rape? The answer lies in his intent.
The accused in this case is a certain Herson Naag y Lobas. He was indicted for Robbery
with Rape under an Information which reads:

That on or about the 8th day of January, 1996 at Daraga, Albay x x x the above named
accused, armed with a screw driver, by means of violence and intimidation, did then
and there willfully, unlawfully and feloniously, have carnal knowledge of the

complainant Desiree Gollena, against her will, by inflicting upon her with the use of
said screw multiple serious physical injuries, and thereafter said accused, having been
fully satisfied of his carnal lust over said Desiree Gollena and believing her to be
dead, with intent of gain, divested and took her personal belongings, to wit: (1) one
bag containing clothes worth P500.00 (2) one gold bracelet worth P1,500.00 (3)
wallet containing P1,800.00 and (4) ladies wristwatch valued at P600.00 to the
damage and prejudice of said Desiree Gollena.
ACTS CONTRARY TO LAW.[1]
He pleaded not guilty during arraignment and the action proceeded to trial.
The evidence for the prosecution shows that Desiree was a singer in a band which regularly
plays at the Gloss and Glitters Disco located in Tabaco, Albay. On the morning of January 8,
1996, she went home to Sipi, Daraga, Albay, to visit her family. She took the bus and by about 4
oclock in the morning, she alighted at the towns Freedom Park in Daraga. She crossed a street
where two tricycles were parked. She woke up one of the drivers and inquired whether she could
be brought to Sipi. Getting a positive response, she boarded it. Upon reaching her place, she told
him to stop and handed to him her fare. To her surprise, what she received in return was not
loose change, but a slap.
The driver then began to maul her. Desiree fought back as hard as she could, but this made
the driver more ferocious in his assault. She was strangled, boxed and kicked. She was
repeatedly stabbed with a screw driver on her face, head, and different parts of her body. Her
head was banged against the sidecar. She realized that her struggle was in vain and would only
put her life in greater danger. She stopped resisting and pretended to be dead.
He then transported her to another place. He lifted her from the tricycle and she thought she
would be thrown to a ravine or cliff beside what appeared to be an abandoned house. Instead, she
was tossed to the ground.The driver removed her pants and panties. She could not resist, fearing
death. After her garments were removed, her legs were spread apart and he copulated with her.
After satisfying his lust, the driver took her wristwatch worth P600.00, a bracelet
worth P1,500.00 and fled with her bag containing her clothes, wallet containing P1,800.00 in
cash, and some loose change. When Desiree sensed that he has left the premises, she rolled down
the ravine. She did not have the energy to stand and walk and so she crawled until she reached a
house, which turned out to be the dwelling place of witness Engineer Antonio Balacano located
at Sybil Subdivision, Sipi, Daraga. She cried for help.
Engr. Balacano responded to Desirees call for assistance. He saw Desiree, a bloodied girl,
cold and torn, squatting by the gate with her pants down and hanging on one leg. It was already 5
oclock in the morning. The wife of the engineer telephoned local police authorities for
assistance. In the meantime, Desiree was brought to the Albay Provincial Hospital where she was
given medical treatment. Dr. Jose Solano testified that the girl was in pain when he examined her
and that she sustained multiple lacerations and stab wounds on different parts of her body, and
had blackening of her left and right eyes. Dr. Aileen Francis Bartilet examined Desirees genitalia
and noted the absence of any sign of injury: there was no bleeding, no laceration of the hymen,
no contusion in the vulvar wall of the vagina, and no abrasion.

Later that morning of January 8, 1996, policemen came to the hospital to investigate the
incident. Desiree gave a description of the suspect as well as the tricycle. The next day, on
January 9, SPO1 Pastor Perena Jr. and SPO2 Domingo Mabini happened to apprehend one
Herson Naag y Lobas, a tricycle driver, for driving a public utility tricycle without the necessary
license. Naag and the vehicle were brought to the police station of Daraga. Perena and Mabini
realized that Naag fit the description of the malefactor given by Desiree. They brought the
confiscated student drivers permit of Naag (which contains his photograph) to the hospital for
identification. Their hunch was confirmed when Desiree, upon being shown the permit,
identified the man in the picture as the one who raped and robbed her.
When the policemen returned to the station, Naag was already gone, but not without leaving
his tricycle behind. They brought the tricycle to the hospital for identification. Desiree did not
have any difficulty in identifying the tricycle as the same vehicle she boarded on the morning of
January 8. A criminal complaint was then filed against Naag. On February 25, 1996, he was
arrested by the NBI agents of Naga City at Tagkawayan, Quezon.
The accused alleged, in his defense, that it was impossible for him to be the author of the
crime at bar. He claimed that at the time and date of the incident, he was sleeping in their house
approximately seven kilometers away from where it happened. His tricycle was not in a
serviceable condition then, and he was repairing it the night before. It was fixed only on January
9 since he was able to buy the spare part that he needed at about 8:30 a.m. of January 8. The
previous day was a Sunday and almost all of the motor shops were closed. Hence, he alleged that
he could not have operated on the Sipi route on the 8th as his tricycle was not in running
condition.He explained that he was in Tagkawayan when he was arrested because he had
undergone hospitalization and was on an errand.
The defense also called two other witnesses to the stand who backstopped the testimony of
the accused. It presented his wife who basically reiterated the story of her husband. She said that
he was with her from the night of January 7 up to the morning of January 8, at about 8:30, when
he had to buy the spare part that he needed for his tricycle. Similarly, it presented a certain Lino
Era, a next-door neighbor who recalled seeing the accused at about 10 oclock in the evening of
January 7 doing some repairs on his tricycle.
In the end, the trial court chose not to believe Naag. It held:

The accused in his defense put up alibi, a shabby excuse, a defense indicties never
seem to tire of. (People vs. Bracamonte, 257 SCRA 380) This defense of the accused
cannot prevail over the positive identification by the victim Desiree of the accused
and of the tricycle. This defense of alibi is worthless in the face of his being positively
identified by the victim Desiree. (People vs. Rivera, 242 SCRA 26)[2]
However, the trial court did not convict him of the crime he was originally charged with, which
is Robbery with Rape. Instead he was meted out two different sentences for the separate crimes
of Robbery and Rape, viz:

WHEREFORE, premises considered, the accused Herson Naag y Lobas is hereby

found GUILTY beyond reasonable doubt of the crime of Rape under Art. 335 (1) of

the Revised Penal Code as amended, and he is hereby sentenced to suffer the penalty
of imprisonment of Reclusion Perpetua with all the accessory penalties thereto
appertaining, to pay Desiree Gollena P50,000.00 as Indemnity and P50,000.00 as
moral damages.
The accused Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of
the separate crime of Robbery under Art. 294 (4) of the Revised Penal Code, and
taking into consideration the Indeterminate Sentence Law he is hereby sentenced to
suffer the penalty of imprisonment of ten (10) years of Prision mayor medium in its
maximum period as the minimum to fourteen (14) years, ten months and twenty (20)
days of Reclusion Temporal medium period in its medium period as the maximum
and to return the ladies wrist watch worth P600.00, bracelet worth P1,500.00, bag of
clothes worth P500.00 or their total value of P2,600.00 if return cannot be had and the
cash of P1,800.00. Costs against the accused.
SO ORDERED.[3]
Dissatisfied with the verdict, the accused interposed this appeal. In his brief, he made this lone
assignment of error: The Lower Court erred in finding the accused guilty of the separate crimes
of Robbery and Rape.[4]
We affirm the conviction.
There is no cogent reason to disturb the findings of the lower court. Well-entrenched is the
rule that an appellate court will generally not disturb the assessment of the trial court on factual
matters considering that the latter, as a trier of fact, is in a better position to appreciate the
same. The only exceptions allowed are when the trial court has plainly overlooked certain facts
of substance which, if considered, may affect the result of the case, or in instances where the
evidence fails to support or substantiate the lower courts findings and conclusions, or where the
disputed decision is based on a misapprehension of facts.[5] This case does not fall under any of
the exceptions. Hence, there is no reason for us to modify the factual findings of the lower court.
Even then, the appellant raises two points in support of his assignment of error designed to
sow in our minds seeds of doubt. The first relates to the medical evidence on record while the
second deals with his identity.
The appellant capitalizes, firstly, on Dr. Bartilets testimony on the absence of fresh injury on
the private part of the offended party although she was examined almost immediately after the
assault. According to him, the findings of said medical expert negate the charge of rape. On the
other hand, the prosecution contends that the lack of injury and the healed laceration could be
attributed to the sexual intercourse she had with her boyfriend.
The appellants argument fails to impress. It is to be noted that Dr. Bartilet herself explained
that her findings did not eliminate the possibility of sexual intercourse. She opined that it must
have been done only outside the vagina but within the external vulva by merely pushing and
giving some force to it.[6] She added that the appellant could have ejaculated and discharged
semen on the external genitalia even without penetrating into the vagina.

In rape cases, what is material is that there is penetration of the female organ no matter how
slight.[7]7 In a long line of decisions, we have ruled that the only essential point is to prove the
entrance or at least the introduction of the male organ into the labia of the pudendum.[8] Hence,
the moment the accuseds penis knocks at the door of the pudenda it suffices to constitute the
crime of rape.[9]
The appellant next assails the identification made by Desiree. He contends that it was still
dark at the time of the incident. He argues that when people board a tricycle, they do not usually
focus their attention on the driver. He states that the identity of the driver could be the least of
Desirees concern for at 4 oclock in the morning, she would have just wanted to go home and rest
in the comfort of her bed.
We are not persuaded. Desiree could not have failed to recognize the appellant because she
was the victim of the assault. A truism founded on ordinary experience is that victims of criminal
violence often strive hard to recognize their assailants.[10] Furthermore, a victim has a natural
knack in remembering the face of an assailant for she, more than anybody else, would be
interested in bringing the malefactor to justice.[11] On the other hand, it would be unnatural for
someone who is interested in vindicating the crime to accuse somebody other than the real
culprit.[12]
To be sure, Desiree was very emphatic in her identification of the appellant as her assailant,
thus:
Court: Now that person Herson Naag, how is he related to the accused in this case?
Desiree: He is the one and same person who raped and robbed me.
Q: You said it was the first time you saw the accused on January 8, 1996. It was still dark is (sic) it
not?
A: It was bright at the centro.
Q: But it was not in park (sic) he was sleeping at that time in his tricycle. Is it not? (sic)
A: It was bright because there were lights.
Q: But you saw him only once on Jan. 8, 1996. How were you able to recognize him in the Municipal
building when you were asked to identify him after one month, being detained?
A: As I have said, I can never forget his face.[13]

Moreover, Desiree should have no difficulty in identifying the appellant because when she first
approached him at the centro to hire his services, the place was bright and well-lighted.
The appellant further argues that Desirees initial identification of him through his picture is
unreliable considering the physical and emotional state she was in at that time. It is urged that
due to her physical and mental instability, the showing of the student permit must have generated
a prejudice in her mind that the person shown in the picture of the drivers ID is the one who
assaulted her.[14]
The argument proceeds from a wrong assumption. It assumes that the picture was shown
before the victim gave the description to the police. It was the other way around. Thus:
Court: Have you seen him in that parking area before January 8, 1996?

Desiree: No, your honor.

Q: Now, while you were in the Hospital you said that an ID was shown to you and the picture of a
person and whose picture you recognize to be that of a person who raped you. Who showed you
that picture?
A: The Police Officer.
Q: How come that the Policeman was able to go to Albay Provincial Hospital with that ID?
A: Because when they interviewed me in the hospital, I gave them the description of the accused and
his tricycle.[15]

The point is made more explicit during Desirees cross-examination:

Atty. Gomez (continuing on cross-examination)
Q: Now, on that date Jan. 9, 1996 were you told by the policemen that the person whose ID was
shown to you was one of their suspects?
A: The policeman told me to identify the person in the ID.
Q: Were you told that the owner of the ID was apprehended for violation of traffic law?
A: No, Sir. I was just asked to identify him.
Q: After the ID was shown to you that was the time when you also gave them the description of the
person, is (sic) it not?
A: No, Sir. It was on Jan. 8, 1996 when I gave the description of the tricycle driver.[16]

We shall now ascertain the nature and extent of the criminal responsibility of the
appellant. The issue is whether the crime committed by him is Robbery with Rape or the two
separate felonies of Robbery and Rape.
In the special complex crime of robbery with rape, the true intent of the accused must first
be determined because it is his intent that determines the offense he has committed. This Court
in People vs. Dinola,[17] citing the cases of People vs. Canastre[18] and People vs.
Faigano,[19] held:

x x x if the intention of the accused was to rob, but rape was committed even before
the asportation, the crime is robbery with rape. But if the original plan was to rape but
the accused after committing the rape also committed the robbery when the
opportunity presented itself, the offense should be viewed as separate and distinct. To
be liable for the complex crime of robbery with rape the intent to take personal
property of another must precede the rape.
We must ascertain the force which moved the appellant when he employed violence and
intimidation against the person of Desiree. It is true that the appellant raped Desiree before she
was dispossessed of her personal properties. This, however, is not decisive. Article 294 of the
Revised Penal Code does not distinguish whether the rape was committed before, during or after
the robbery. It suffices that the robbery was accompanied by rape.[20]

We agree with the conclusion of the trial court that rape was the primary intent of the
appellant and his taking away of the belongings of the victim was only a mere
afterthought. Although the trial court did not state the reasons for its ruling, there exists sufficient
evidence on record from where such deduction can be made.
First. It is obvious from the degree and character of the violence and intimidation which the
appellant employed (and when he employed it) upon Desiree that his intent was to rape her. He
applied such force as to render her resistance to his lust inutile. The kind of force used was
unnecessary if he only planned to rob Desiree. On the other hand, the excessive force was clearly
meant to attain his lustful scheme. Resultantly, when he finally forced his bestial desire on her,
he was able to traverse, in a manner of speaking, the path of least resistance.
Second. The appellant transported Desiree from where he first mauled her to an abandoned
place. All the time that Desiree was helpless after her mauling, appellant did not concern himself
with robbing Desiree even if he could have done so with ease if not with impunity. Instead, he
preoccupied himself in finding a location more suited, nay, comfortable, for his plan of lying
with her. Needless to say, an abandoned house fits well.
Lastly, at no time did the appellant ask for the belongings of Desiree. Neither did he search
her for valuables, except for the wallet in her pants. What is apparent is that he only: (1) took her
watch and bracelet, both easily seen and noticeable, and (2) fled with her bag which was already
in the tricycle. These overt acts only indicate that he decided to take Desirees belongings as an
afterthought and only when the opportunity presented itself.
We disagree, however, on the ruling of the trial court that the appellant is guilty of
robbery. He should only be convicted of theft because when he took the personal properties of
Desiree, the element of violence and intimidation was no longer present. While it is true that he
inflicted force upon her person, that was with the view and in pursuance of the rape, not of the
taking. When the asportation happened, Desiree was near lifeless, incapable of putting any form
of opposition.
The penalty for theft is determined by the value of the property taken. Under Article 309 of
the Revised Penal Code, any person guilty of theft shall be punished by the penalty of prision
correccional in its minimum and medium periods, if the value of the thing stolen is more than
200 pesos but does not exceed 6,000 pesos. Applying the Indeterminate Sentence Law, the
minimum penalty to be meted out on the appellant Naag should be anywhere within the range of
2 months and 1 day to 6 months of arresto mayor; and the maximum should be within the range
of 6 months and 1 day to 4 years and 2 months of prision correccional. Considering that no
aggravating or mitigating circumstance attended the commission of the crime, the appellant
should be sentenced to an indeterminate prison term of 4 months and 21 days of arresto
mayor maximum as the minimum, to 1 year, 8 months and 21 days of prision correccional as
the maximum.
IN VIEW WHEREOF, the impugned decision is hereby MODIFIED. The accusedappellant Herson Naag y Lobas is found GUILTY beyond reasonable doubt of the crime of
RAPE under Article 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced
to suffer the penalty of imprisonment of reclusion perpetua with all the accessory penalties
thereto appertaining, to pay Desiree Gollena P50,000.00 as indemnity and P50,000.00 as moral
damages.

The accused-appellant Herson Naag y Lobas is also found GUILTY beyond reasonable
doubt of the separate crime of THEFT under Article 308 of the Revised Penal Code, and taking
into consideration the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty
of imprisonment of 4 months and 21 days of arresto mayor maximum as the minimum, to 1
year, 8 months and 21 days of prision correccionalas the maximum, and to return the ladies
wristwatch worth P600.00, bracelet worth P1,500.00, bag of clothes worth P500.00 or their total
value of P2,600.00 if return cannot be made and the cash of P1,800.00. Costs against the
accused.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, Pardo and Ynares-Santiago JJ., concur.

SECOND DIVISION

[G.R. No. 119619. December 13, 1996]

RICHARD HIZON, SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO

GABO, RODRIGO ABRERA, CHEUNG TAI FOOK, SHEK CHOR
LUK, EFREN DELA PENA, JONEL AURELIO, GODOFREDO
VILLAVERDE, ANGELITO DUMAYBAG, DEOMEDES ROSIL,
AMADO VILLANUEVA, FRANCISCO ESTREMOS, ANGEL
VILLAVERDE, NEMESIO CASAMPOL, RICHARD ESTREMOS,
JORNIE DELA PENA, JESUS MACTAN, MARLON CAMPORAZO,
FERNANDO BIRING, MENDRITO CARPO, LUIS DUARTE,
JOSEPH
AURELIO,
RONNIE
JUEZAN,
BERNARDO
VILLACARLOS, RICARDO SALES, MARLON ABELLA, TEODORO
DELOS REYES, IGNACIO ABELLA, JOSEPH MAYONADO,
JANAIRO LANGUYOD, DODONG DELOS REYES, JOLLY
CABALLERO
and
ROPLANDO
ARCENAS, petitioners,
vs. HONORABLE COURT OF APPEALS and THE PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
PUNO, J.:

This is a petition for review on certiorari of the decision of the Court of

Appeals in CA-G.R. CR No. 15417 affirming the decision of the Regional Trial
Court, Branch 52, Palawan in Criminal Case No. 10429 convicting petitioners
of the offense of illegal fishing with the use of obnoxious or poisonous

substance penalized under Presidential Decree (P.D.) No. 704, the Fisheries
Decree of 1975.
In an Information dated October 15, 1992, petitioners were charged with a
violation of P.D. 704 committed as follows:
That on or about the 30th day of September 1992, at Brgy. San Rafael, Puerto
Princesa City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused crew members and fishermen of F/B Robinson owned by First
Fishermen Fishing Industries, Inc., represented by Richard Hizon, a domestic
corporation duly organized under the laws of the Philippines, being then the owner,
crew members and fishermen of F/B Robinson and with the use of said fishing boat,
did then and there wilfully, unlawfully and feloniously the said accused conspiring
and confederating together and mutually helping one another catch, take or gather or
cause to be caught, taken or gathered fish or fishery aquatic products in the coastal
waters of Puerto Princesa City, Palawan, with the use of obnoxious or poisonous
substance (sodium cyanide), of more or less one (1) ton of assorted live fishes which
were illegally caught thru the use of obnoxious/poisonous substance (sodium
cyanide).
[1]

The following facts were established by the prosecution: In September

1992, the Philippine National Police (PNP) Maritime Command of Puerto
Princesa City, Palawan received reports of illegal fishing operations in the
coastal waters of the city. In response to these reports, the city mayor
organized Task Force Bantay Dagat to assist the police in the detection and
apprehension of violators of the laws on fishing.
On September 30, 1992 at about 2:00 in the afternoon, the Task Force
Bantay Dagat reported to the PNP Maritime Command that a boat and several
small crafts were fishing by muro ami within the shoreline of Barangay San
Rafael of Puerto Princesa. The police, headed by SPO3 Romulo Enriquez,
and members of the Task Force Bantay Dagat, headed by Benito Marcelo, Jr.,
immediately proceeded to the area and found several men fishing in
motorized sampans and a big fishing boat identified as F/B Robinson within
the seven-kilometer shoreline of the city. They boarded the F/B Robinson and
inspected the boat with the acquiescence of the boat captain, Silverio
Gargar. In the course of their inspection, the police saw two foreigners in the
captains deck.SPO3 Enriquez examined their passports and found them to be
mere photocopies. The police also discovered a large aquarium full of live
lapu-lapu and assorted fish weighing approximately one ton at the bottom of
the boat. They checked the license of the boat and its fishermen and found
them to be in order. Nonetheless, SPO3 Enriquez brought the boat captain,
the crew and the fishermen to Puerto Princesa for further investigation.
[2]

At the city harbor, members of the Maritime Command were ordered by

SPO3 Enriquez to guard the F/B Robinson. The boat captain and the two
foreigners were again interrogated at the PNP Maritime Command
office. Thereafter, an Inspection/Apprehension Report was prepared and the
boat, its crew and fishermen were charged with the following violations:
1. Conducting fishing operations within Puerto Princesa coastal waters without mayors
permit;
2. Employing excess fishermen on board (Authorized--26; On board--36);
3. Two (2) Hongkong nationals on board without original passports.[3]

The following day, October 1, 1992, SPO3 Enriquez directed the boat
captain to get random samples of fish from the fish cage of F/B Robinson for
laboratory examination. As instructed, the boat engineer, petitioner Ernesto
Andaya, delivered to the Maritime Office four (4) live lapu-lapu fish inside a
plastic shopping bag filled with water. SPO3 Enriquez received the fish and in
the presence of the boat engineer and captain, placed them inside a large
transparent plastic bag without water. He sealed the plastic with heat from a
lighter.
[4]

The specimens were brought to the National Bureau of Investigation (NBI)

sub-office in the city for examination to determine the method of catching the
same for record or evidentiary purposes. They were received at the NBI
office at 8:00 in the evening of the same day. The receiving clerk, Edna
Capicio, noted that the fish were dead and she placed the plastic bag with the
fish inside the office freezer to preserve them. Two days later, on October 3,
1992, the chief of the NBI sub-office, Onos Mangotara, certified the
specimens for laboratory examination at the NBI Head Office in Manila. The
fish samples were to be personally transported by Edna Capicio who was then
scheduled
to
leave
for Manila for
her
board
examination
in
Criminology. On October 4, 1992, Ms. Capicio, in the presence of her chief,
took the plastic with the specimens from the freezer and placed them inside
two shopping bags and sealed them with masking tape. She proceeded to her
ship where she placed the specimens in the ships freezer.
[5]

[6]

Capicio arrived in Manila the following day, October 5, 1992 and

immediately brought the specimens to the NBI Head Office. On October 7,
1992, NBI Forensic Chemist Emilia Rosaldes conducted two tests on the fish
samples and found that they contained sodium cyanide, thus:
FINDINGS:

Weight of Specimen 1.870 kilograms Examinations made on the above-mentioned

specimen gave POSITIVE RESULTS to the test for the presence of SODIUM
CYANIDE x x x
REMARKS:
Sodium Cyanide is a violent poison.

[7]

In light of these findings, the PNP Maritime Command of Puerto Princesa

City filed the complaint at bar against the owner and operator of the F/B
Robinson, the First Fishermen Fishing Industries, Inc., represented by herein
petitioner Richard Hizon, the boat captain, Silverio Gargar, the boat engineer,
Ernesto Andaya, two other crew members, the two Hongkong nationals and
28 fishermen of the said boat.
Petitioners were arraigned and they pled not guilty to the charge. As
defense, they claimed that they are legitimate fishermen of the First
Fishermen Industries, Inc., a domestic corporation licensed to engage in
fishing. They alleged that they catch fish by the hook and line method and that
they had used this method for one month and a half in the waters
of Cuyo Island. They related that on September 30, 1992 at about 7:00 A.M.,
they
anchored
the
F/B
Robinson
in
the
east
of Podiado Island in Puerto Princesa City. The boat captain and the fishermen
took out and boarded their sampans to fish for their food. They were still
fishing in their sampans at 4:00 P.M. when a rubber boat containing members
of the PNP Maritime Command and the Task Force Bantay Dagat approached
them and boarded the F/B Robinson. The policemen were in uniform while the
Bantay Dagat personnel were in civilian clothes. They were all armed with
guns. One of the Bantay Dagat personnel introduced himself as Commander
Jun Marcelo and he inspected the boat and the boats documents. Marcelo
saw the two foreigners and asked for their passports. As their passports were
photocopies, Marcelo demanded for their original. The captain explained that
the original passports were with the companys head office in Manila. Marcelo
angrily insisted for the originals and threatened to arrest everybody. He then
ordered the captain, his crew and the fishermen to follow him to Puerto
Princesa. He held the magazine of his gun and warned the captain Sige,
huwag kang tatakas, kung hindi babarilin ko kayo! The captain herded all his
men into the boat and followed Marcelo and the police to Puerto Princesa.
[8]

They arrived at the city harbor at 7:45 in the evening and were met by
members of the media. As instructed by Marcelo, the members of the media
interviewed and took pictures of the boat and the fishermen.
[9]

The following day, October 1, 1992, at 8:00 in the morning, Amado

Villanueva, one of the fishermen at the F/B Robinson, was instructed by a
policemen guarding the boat to get five (5) fish samples from the fish cage
and bring them to the pier. Villanueva inquired whether the captain knew
about the order but the guard replied he was taking responsibility for
it. Villanueva scooped five pieces of lapu-lapu, placed them inside a plastic
bag filled with water and brought the bag to the pier. The boat engineer,
Ernesto Andaya, received the fish and delivered them to the PNP Maritime
Office. Nobody was in the office and Andaya waited for the apprehending
officers and the boat captain. Later, one of the policemen in the office
instructed him to leave the bag and hang it on a nail in the wall. Andaya did as
he was told and returned to the boat at 10:00 A.M.
[10]

In the afternoon of the same day, the boat captain arrived at the Maritime
office. He brought along a representative from their head office in Manila who
showed the police and the Bantay Dagat personnel the original passports of
the Hongkong nationals and other pertinent documents of the F/B Robinson
and its crew. Finding the documents in order, Marcelo approached the captain
and whispered to him Tandaan mo ito, kapitan, kung makakaalis ka dito,
magkikita pa rin uli tayo sa dagat, kung hindi kayo lulubog ay palulutangin ko
kayo! It was then that SPO3 Enriquez informed the captain that some
members of the Maritime Command, acting under his instructions, had just
taken five (5) pieces of lapu-lapu from the boat. SPO3 Enriquez showed the
captain the fish samples. Although the captain saw only four (4) pieces of
lapu-lapu, he did not utter a word of protest. Under Marcelos threat, he
signed the Certification that he received only four (4) pieces of fish.
[11]

[12]

Two weeks later, the information was filed against petitioners. The case
was prosecuted against thirty-one (31) of the thirty-five (35) accused. Richard
Hizon remained at large while the whereabouts of Richard Estremos, Marlon
Camporazo and Joseph Aurelio were unknown.
On July 9, 1993, the trial court found the thirty one (31) petitioners guilty
and sentenced them to imprisonment for a minimum of eight (8) years and
one (1) day to a maximum of nine (9) years and four (4) months. The court
also ordered the confiscation and forfeiture of the F/B Robinson, the 28
sampans and the ton of assorted live fishes as instruments and proceeds of
the offense, thus:
WHEREFORE, premises considered, judgment is hereby rendered finding the
accused SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO,
RODRIGO ABRERA, CHEUNG TAI FOOK, SHEK CHOR LUK, EFREN
DELA PENA, JONEL AURELIO, GODOFREDO VILLAVERDE, ANGELITO

DUMAYBAG, DEOMEDES ROSIL, AMADO VILLANUEVA, FRANCISCO

ESTREMOS, ARNEL VILLAVERDE, NEMESIO CASAMPOL, JORNIE
DELACRUZ, JESUS MACTAN, FERNANDO BIRING, MENDRITO CARPO,
LUIS DUARTE, RONNIE JUEZAN, BERNARDO VILLACARLOS,
RICARDO SALES, MARLON ABELLA, TEODORO DELOS REYES,
IGNACIO ABELLA, JOSEPH MAYONADO, JANAIRO LANGUYOD,
DODONG DELOS REYES, ROLANDO ARCENAS and JOLLY
CABALLERO guilty beyond reasonable doubt of the crime of Illegal Fishing
with the use of obnoxious or poisonous substance commonly known as sodium
cyanide, committed in violation of section 33 and penalized in section 38 of
Presidential Decree No. 704, as amended, and there being neither mitigating nor
aggravating circumstances appreciated and applying the provisions of the
Indeterminate Sentence Law, each of the aforenamed accused is sentenced to an
indeterminate penalty of imprisonment ranging from a minimum of EIGHT (8)
YEARS and ONE (1) DAY to a maximum of NINE (9) YEARS and FOUR (4)
MONTHS and to pay the costs.
Pursuant to the provisions of Article 45, in relation to the second sentence of
Article 10 of the Revised Penal Code, as amended:
a) Fishing Boat (F/B) Robinson;
b) The 28 motorized fiberglass sampans; and
c) The live fishes in the fish cages installed in the F/B Robinson, all of which
have been respectively shown to be tools or instruments and proceeds of the
offense, are hereby ordered confiscated and declared forfeited in favor of the
government.
SO ORDERED.

[13]

On appeal, the Court of Appeals affirmed the decision of the trial

court. Hence, this petition.
Petitioners contend that:
I

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

THE MERE POSITIVE RESULTS TO THE TEST FOR THE PRESENCE OF
SODIUM CYANIDE IN THE FISH SPECIMEN, ALBEIT ILLEGALLY
SEIZED ON THE OCCASION OF A WARRANTLESS SEARCH AND

ARREST, IS ADMISSIBLE AND SUFFICIENT BASIS FOR THE

PETITIONERS CONVICTION OF THE CRIME OF ILLEGAL FISHING.
II

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING

THAT THE STATUTORY PRESUMPTION OF GUILT UNDER SEC. 33 OF
PRESIDENTIAL DECREE NO. 704 CANNOT PREVAIL AGAINST THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE, SUCH THAT THE
GRAVAMEN OF THE OFFENSE OF ILLEGAL FISHING MUST STILL BE
PROVED BEYOND REASONABLE DOUBT.
III

THE HONORABLE COURT OF APPEALS ERRED IN NOT REVERSING

THE JUDGMENT OF THE TRIAL COURT AND ACQUITTING THE
PETITIONERS.
[14]

The Solicitor General submitted a Manifestation in Lieu of Comment

praying for petitioners acquittal.
[15]

The petitioners, with the concurrence of the Solicitor General, primarily

question the admissibility of the evidence against petitioners in view of the
warrantless search of the fishing boat and the subsequent arrest of
petitioners. More concretely, they contend that the NBI finding of sodium
cyanide in the fish specimens should not have been admitted and considered
by the trial court because the fish samples were seized from the F/B Robinson
without a search warrant.
Our constitution proscribes search and seizure and the arrest of persons
without a judicial warrant. As a general rule, any evidence obtained without a
judicial warrant is inadmissible for any purpose in any proceeding. The rule is,
however, subject to certain exceptions. Some of these are: (1) a search
incident to a lawful arrest; (2) seizure of evidence in plain view; (3) search of
a moving motor vehicle; and (4) search in violation of customs laws.
[16]

[17]

[18]

[19]

[20]

Search and seizure without search warrant of vessels and aircrafts for
violations of customs laws have been the traditional exception to the
constitutional requirement of a search warrant. It is rooted on the recognition
that a vessel and an aircraft, like motor vehicles, can be quickly moved out of
the locality or jurisdiction in which the search warrant must be sought and
secured. Yielding to this reality, judicial authorities have not required a search
warrant of vessels and aircrafts before their search and seizure can be
constitutionally effected.
[21]

The same exception ought to apply to seizures of fishing vessels and

boats breaching our fishery laws. These vessels are normally powered by
high-speed motors that enable them to elude arresting ships of the Philippine
Navy, the Coast Guard and other government authorities enforcing our fishery
laws.
[22]

We thus hold as valid the warrantless search on the F/B Robinson, a

fishing boat suspected of having engaged in illegal fishing. The fish and other
evidence seized in the course of the search were properly admitted by the trial
court. Moreover, petitioners failed to raise the issue during trial and hence,
waived their right to question any irregularity that may have attended the said
search and seizure.
[23]

Given the evidence admitted by the trial court, the next question now is
whether petitioners are guilty of the offense of illegal fishing with the use of
poisonous substances. Again, the petitioners, joined by the Solicitor General,
submit that the prosecution evidence cannot convict them.
We agree.
Petitioners were charged with illegal fishing penalized under sections 33
and 38 of P.D. 704 which provide as follows:
[24]

Sec. 33. Illegal fishing, illegal possession of explosives intended for illegal
fishing; dealing in illegally caught fish or fishery/aquatic products. -- It shall be
unlawful for any person to catch, take or gather or cause to be caught, taken or
gathered fish or fishery/aquatic products in Philippine waters with the use of
explosives, obnoxious or poisonous substance, or by the use of electricity as
defined in paragraphs (l), (m) and (d), respectively, of section 3
hereof: Provided, That mere possession of such explosives with intent to use
the same for illegal fishing as herein defined shall be punishable as hereinafter
provided: Provided, That the Secretary may, upon recommendation of the
Director and subject to such safeguards and conditions he deems necessary,
allow for research, educational or scientific purposes only, the use of
explosives, obnoxious or poisonous substance or electricity to catch, take or
gather fish or fishery/aquatic products in the specified area: Provided, further,
That the use of chemicals to eradicate predators in fishponds in accordance
with accepted scientific fishery practices without causing deleterious effects in
neighboring waters shall not be construed as the use of obnoxious or poisonous
substance within the meaning of this section: Provided, finally, That the use of
mechanical bombs for killing whales, crocodiles, sharks or other large
dangerous fishes, may be allowed, subject to the approval of the Secretary.

It shall, likewise, be unlawful for any person knowingly to possess, deal in, sell
or in any manner dispose of, for profit, any fish or fishery/aquatic products
which have been illegally caught, taken or gathered.
The discovery of dynamite, other explosives and chemical compounds
containing combustible elements, or obnoxious or poisonous substance, or
equipment or device for electric fishing in any fishing boat or in the possession
of a fisherman shall constitute a presumption that the same were used for
fishing in violation of this Decree, and the discovery in any fishing boat of fish
caught or killed by the use of explosives, obnoxious or poisonous substance or
by electricity shall constitute a presumption that the owner, operator or
fisherman were fishing with the use of explosives, obnoxious or poisonous
substance or electricity.
xxxxxxxxx
Sec. 38. Penalties. -- (a) For illegal fishing and dealing in illegally caught fish
or fishery/aquatic products.-- Violation of Section 33 hereof shall be punished
as follows:
xxxxxxxxx
(2) By imprisonment from eight (8) to ten (10) years, if obnoxious or poisonous
substances are used: Provided, That if the use of such substances results 1) in
physical injury to any person, the penalty shall be imprisonment from ten (10)
to twelve (12) years, or 2) in the loss of human life, then the penalty shall be
imprisonment from twenty (20) years to life or death;
x x x x x x x x x.

[25]

The offense of illegal fishing is committed when a person catches, takes or

gathers or causes to be caught, taken or gathered fish, fishery or aquatic
products in Philippine waters with the use of explosives, electricity, obnoxious
or poisonous substances. The law creates a presumption that illegal fishing
has been committed when: (a) explosives, obnoxious or poisonous
substances or equipment or device for electric fishing are found in a fishing
boat or in the possession of a fisherman; or (b) when fish caught or killed with
the use of explosives, obnoxious or poisonous substances or by electricity are
found in a fishing boat. Under these instances, the boat owner, operator or
fishermen are presumed to have engaged in illegal fishing.
Petitioners contend that this presumption of guilt under the Fisheries
Decree violates the presumption of innocence guaranteed by the

Constitution. As early as 1916, this Court has rejected this argument by

holding that:
[26]

[27]

In some States, as well as in England, there exists 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 the 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.
[28]

The validity of laws establishing presumptions in criminal cases is a settled

matter. It is generally conceded that the legislature has the power to provide
that proof of certain facts can constitute prima facie evidence of the guilt of the
accused and then shift the burden of proof to the accused provided there is a
rational connection between the facts proved and the ultimate fact
presumed. To avoid any constitutional infirmity, the inference of one from
proof of the other must not be arbitrary and unreasonable. In fine, the
presumption must be based on facts and these facts must be part of the crime
when committed.
[29]

[30]

[31]

The third paragraph of section 33 of P.D. 704 creates a presumption of

guilt based on facts proved and hence is not constitutionally impermissible. It
makes the discovery of obnoxious or poisonous substances, explosives, or
devices for electric fishing, or of fish caught or killed with the use of obnoxious
and poisonous substances, explosives or electricity in any fishing boat or in
the possession of a fisherman evidence that the owner and operator of the
fishing boat or the fisherman had used such substances in catching fish. The
ultimate fact presumed is that the owner and operator of the boat or the
fisherman were engaged in illegal fishing and this presumption was made to
arise from the discovery of the substances and the contaminated fish in the
possession of the fisherman in the fishing boat. The fact presumed is a natural
inference from the fact proved.
[32]

We stress, however, that the statutory presumption is merely prima

facie. It can not, under the guise of regulating the presentation of evidence,
operate to preclude the accused from presenting his defense to rebut the
main fact presumed. At no instance can the accused be denied the right to
rebut the presumption, thus:
[33]

[34]

[35]

The inference of guilt is one of fact and rests upon the common experience of
men. But the experience of men has taught them that an apparently guilty

possession may be explained so as to rebut such an inference and an accused

person may therefore put witnesses on the stand or go on the witness stand
himself to explain his possession, and any reasonable explanation of his
possession, inconsistent with his guilty connection with the commission of the
crime, will rebut the inference as to his guilt which the prosecution seeks to
have drawn from his guilty possession of the stolen goods.
[36]

We now review the evidence to determine whether petitioners have

successfully rebutted this presumption. The facts show that on November 13,
1992, after the information was filed in court and petitioners granted bail,
petitioners moved that the fish specimens taken from the F/B Robinson be
reexamined. The trial court granted the motion. As prayed for, a member of
the PNP Maritime Command of Puerto Princesa, in the presence of
authorized representatives of the F/B Robinson, the NBI and the local
Fisheries Office, took at random five (5) live lapu-lapu from the fish cage of
the boat. The specimens were packed in the usual manner of transporting live
fish, taken aboard a commercial flight and delivered by the same
representatives to the NBI Head Office in Manila for chemical analysis.
[37]

[38]

On November 23, 1992, Salud Rosales, another forensic chemist of the

NBI in Manila conducted three (3) tests on the specimens and found the fish
negative for the presence of sodium cyanide, thus:
[39]

Gross weight of specimen = 3.849 kg.

Examination made on the above-mentioned specimens gave NEGATIVE
RESULTS to the tests for the presence of SODIUM CYANIDE.
[40]

The Information charged petitioners with illegal fishing with the use of
obnoxious or poisonous substance (sodium cyanide), of more or less one (1)
ton of assorted live fishes. There was more or less one ton of fishes in the F/B
Robinsons fish cage. It was from this fish cage that the four dead specimens
examined on October 7, 1992 and the five live specimens examined on
November 23, 1992 were taken. Though all the specimens came from the
same source allegedly tainted with sodium cyanide, the two tests resulted in
conflicting findings. We note that after its apprehension, the F/B Robinson
never left the custody of the PNP Maritime Command. The fishing boat was
anchored near the city harbor and was guarded by members of the Maritime
Command. It was later turned over to the custody of the Philippine Coast
Guard Commander of Puerto Princesa City.
[41]

[42]

The prosecution failed to explain the contradictory findings on the fish

samples and this omission raises a reasonable doubt that the one ton of
fishes in the cage were caught with the use of sodium cyanide.
The absence of cyanide in the second set of fish specimens supports
petitioners claim that they did not use the poison in fishing. According to them,
they caught the fishes by the ordinary and legal way, i.e., by hook and line on
board their sampans. This claim is buttressed by the prosecution evidence
itself. The apprehending officers saw petitioners fishing by hook and line when
they came upon them in the waters of Barangay San Rafael. One of the
apprehending officers, SPO1 Demetrio Saballuca, testified as follows:
ATTY. TORREFRANCA ON CROSS-EXAMINATION:
Q : I get your point therefore, that the illegal fishing supposedly conducted at San
Rafael is a moro ami type of fishing [that] occurred into your mind and that was
made to understand by the Bantay Dagat personnel?
A : Yes, sir.
Q : Upon reaching the place, you and the pumpboat, together with the two Bantay
Dagat personnel were SPO3 Romulo Enriquez and Mr. Benito Marcelo and SPO1
Marzan, you did not witness that kind of moro ami fishing, correct?
A : None, sir.
Q :In other words, there was negative activity of moro ami type of fishing on September
30, 1992 at 4:00 in the afternoon at San Rafael?
A : Yes, sir.
Q : And what you saw were 5 motorized Sampans with fishermen each doing a hook
and line fishing type?
A : Yes, sir. More or less they were five.
Q : And despite the fact you had negative knowledge of this moro ami type of fishing,
SPO3 Enriquez together with Mr. Marcelo boarded the vessel just the same?
A : Yes, sir.

x x x x x x x x x.

[43]

The apprehending officers who boarded and searched the boat did not find
any sodium cyanide nor any poisonous or obnoxious substance. Neither did
they find any trace of the poison in the possession of the fishermen or in the
fish cage itself. An Inventory was prepared by the apprehending officers and
only the following items were found on board the boat:
ITEMS QUANTITY REMARKS
F/B Robinson (1) unit operating

engine (1) unit ICE-900-BHP

sampans 28 units fiberglass
outboard motors 28 units operating
assorted fishes more or less 1 ton live
hooks and lines assorted
x x x.

[44]

We cannot overlook the fact that the apprehending officers found in the
boat assorted hooks and lines for catching fish. For this obvious reason, the
Inspection/Apprehension Report prepared by the apprehending officers
immediately after the search did not charge petitioners with illegal fishing,
much less illegal fishing with the use of poison or any obnoxious substance.
[45]

[46]

The only basis for the charge of fishing with poisonous substance is the
result of the first NBI laboratory test on the four fish specimens. Under the
circumstances of the case, however, this finding does not warrant the infallible
conclusion that the fishes in the F/B Robinson, or even the same four
specimens, were caught with the use of sodium cyanide.
Prosecution witness SPO1 Bernardino Visto testified that for the first
laboratory test , boat engineer Ernesto Andaya did not only get four (4)
samples of fish but actually got five (5) from the fish cage of the F/B
Robinson. This Certification that four (4) fish samples were taken from the
boat shows on its face the number of pieces as originally five (5) but this was
erased with correction fluid and four (4) written over it. The specimens were
taken, sealed inside the plastic bag and brought to Manila by the police
authorities in the absence of petitioners or their representative. SPO2
Enriquez testified that the same plastic bag containing the four specimens
was merely sealed with heat from a lighter. Emilia Rosaldes, the NBI
forensic chemist who examined the samples, testified that when she opened
the package, she found two ends of the same plastic bag knotted. These
circumstances as well as the time interval from the taking of the fish samples
and their actual examination fail to assure the impartial mind that the integrity
of the specimens had been properly safeguarded.
[47]

[48]

[49]

[50]

[51]

Apparently, the members of the PNP Maritime Command and the Task
Force Bantay Dagat were the ones engaged in an illegal fishing expedition. As
sharply observed by the Solicitor General, the report received by the Task

Force Bantay Dagat was that a fishing boat was fishing illegally through muro
ami on the waters of San Rafael. Muro ami according to SPO1 Saballuca is
made with the use of a big net with sinkers to make the net submerge in the
water with the fishermen surround[ing] the net.
[52]

This method of fishing needs approximately two hundred (200) fishermen

to execute. What the apprehending officers instead discovered were twenty
eight (28) fishermen in their discovered were twenty eight (28) fishermen in
their sampans fishing by hook and line. The authorities found nothing on the
boat that would have indicated any form of illegal fishing. All the documents of
the boat and the fishermen were in order. It was only after the fish specimens
were tested, albeit under suspicious circumstances, that petitioners were
charged with illegal fishing with the use of poisonous substances.
[53]

IN VIEW WHEREOF, the petition is granted and the decision of the Court
of Appeals in CA-G.R. CR No. 15417 is reversed and set aside. Petitioners
are acquitted of the crime of illegal fishing with the use of poisonous
substances defined under the Section 33 of Republic Act No. 704, the
Fisheries Decree of 1975. No costs.
SO ORDERED.
Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur.

FIRST DIVISION

[G.R. No. 118334. February 20, 2001]

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs. LARRY
CONSEJERO y PASCUA and ROMMEL MALAPIT (at
large), accused.
LARRY CONSEJERO y PASCUA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:

This is an appeal from the February 2, 1994 Decision[1] of the Regional Trial Court of
Aparri, Cagayan, Branch 6, in Criminal Case No. VI-619, convicting accused-appellant Larry
Consejero y Pascua of the crime of robbery with homicide.
The information against accused-appellant alleges:

That on or about May 25, 1989, in the municipality of Lal-lo, province of Cagayab
(sic), and within the jurisdiction of this Honorable Court, the said accused LARRY
CONSAJERO (sic) and ROMMEL MALAPIT, armed with an M-14, conspiring
together and helping one another, with evident premeditation, with intent to gain, and
by use of violence against and intimidation of persons, did then and there wilfully,
unlawfully and feloniously take, steal and carry away against the will of the owner,
Jaime Israel, one motor engine, Briggs and Straton, worth THREE THOUSAND
SEVEN HUNDRED EIGHTY SIX (P3,786.00) PESOS, Philippine Currency; and
that on the same occassion (sic) of the Robbery, and in furtherance of their criminal
design, the said accused, LARRY CONSAJERO (sic) and ROMMEL MALAPIT,
armed with an M-14 and a deadly weapon, conspiring together and helping one
another with intent to kill and with treachery, did then and there wilfully, unlawfully
and feloniously attack, assault and stabbed one DESTO CASTILLO and one
DIONISIO USIGAN inflicting upon them several injuries in the different parts of
their bodies which caused their death.
That the crime was committed in an inhabited place.
CONTRARY TO LAW.[2]
Upon arraignment on April 30, 1991,[3] accused-appellant Larry Consejero entered a plea of
not guilty. His co-accused, Rommel Malapit was not arraigned, being still at large. At the trial,
the prosecution presented the following witnesses: Jaime Israel, Melchor Pulido, Romana
Castillo, Zenaida Usigan and Dr. Cesar R. Real.
The facts are as follows:
In the morning of May 26, 1989, two dead bodies were discovered not far from the river
bank of Barangay Jurisdiccion, Lal-lo, Cagayan. Found lying on the ground, face down,
drenched in his own blood with hands tied at the back, was the lifeless body of Modesto
Castillo. Twenty meters away lay the dead body of Dionisio Usigan, who sustained thirty-one
stab and hack wounds on the different parts of his body.[4]
According to prosecution witness Jaime Israel, the victims were last seen alive in the
afternoon of May 25, 1989, when the two went out to fish at the Cagayan River using his
motorized banca with Briggs and Straton engine.[5]
Another prosecution witness, Melchor Pulido,[6] a resident of Maxingal, Lal-lo, Cagayan,
testified that in the afternoon of May 25, 1989, his neighbor, accused-appellant Larry Consejero,
a CAFGU member, invited him to gather fish caught in the Cagayan River. Melchor Pulido
agreed, and, together with accused-appellant, who was then carrying an M-14 armalite rifle, he
rode a banca towards Barangay Jurisdiccion, Lal-lo, Cagayan.That was between the hours of
8:00 oclock and 9:00 oclock in the evening of May 25, 1989. With them was accused Rommel
Malapit, who was also armed with an M-14 armalite rifle.
After emptying the contents of the fishnets, they noticed at a distance a motorized banca
carrying two persons. They paddled towards the motorized banca. When they got nearer,

accused-appellant asked the two persons in the boat, Were you not the ones who usually demand
quota from Barangay Captain Bacuyan? The two replied, No. Then, accused-appellant asked the
two if there was a nearby store. They answered in the affirmative, whereupon accused-appellant
told them to accompany him and his companions to the said store. The two bancas then
proceeded to the river bank. Upon reaching the bank, however, accused-appellant said that only
one should accompany them. Thus, one of them, who turned out to be Dionisio Usigan, went
with accused-appellant Larry Consejero and accused Rommel Malapit towards the northeast
direction. Left behind were Melchor Pulido and Modesto Castillo. After ten (10) minutes,
accused-appellant and accused Rommel Malapit returned holding an armalite rifle and a ten-inch
bolo, respectively. Dionisio Usigan was not with them anymore.
Upon orders of accused-appellant, Rommel Malapit tied the hands of Modesto Castillo at his
back using a portion of a fishnet and, thereafter, they brought him to the same northeast direction
where Usigan was taken.Again, only Larry Consejero and Rommel Malapit came back; Modesto
Castillo was no longer with them.
Accused-appellant then detached the engine of the motorized banca ridden by Usigan and
Castillo, while Melchor Pulido was told to stand as look-out. After they loaded the engine in
their banca, the three of them headed home. On the way, the two accused told Melchor Pulido
that the persons they met were already dead. Accused-appellant threatened to kill Melchor Pulido
and his family if Pulido reveals what he knew. After they alighted from the banca, Pulido went
straight home while accused-appellant and Rommel Malapit brought the engine of the motorized
banca to a cogonal area.
The following morning, May 26, 1989, the lifeless body of Modesto Castillo and Dionisio
Usigan were found not far from the river bank of Barangay Jurisdiccion, Lal-lo, Cagayan. The
motorized banca ridden by the two deceased was nowhere to be found.[7]
The postmortem examination of the two deceased, conducted at around 12:00 noon of May
26, 1989 by Dr. Cesar R. Real, Municipal Health Officer of Lal-lo, Cagayan, disclosed that
Modesto Castillo and Dionisio Usigan died approximately between 7:00 oclock p.m. to 12:00
oclock midnight of May 25, 1989. Modesto Castillo sustained eight (8) incised and stab wounds;
while Dionisio Usigan sustained a total of thirty-one (31) hack, stab, and incised wounds on the
different parts of his body.[8]
Melchor Pulido explained that he executed a sworn statement only on September 12, 1990,
because he was afraid that accused-appellant would make good his threat to kill him and his
family if he would reveal what he knew. In fact, they had to move to the house of his parents-inlaw in order to avoid accused-appellant, who happened to be their neighbor. It was only when
accused-appellant was no longer a member of the CAFGU that he gathered enough courage to
report to the authorities.[9]
The defense relied mainly on denial and alibi. Accused-appellant testified that he became a
CAFGU member sometime before May 25, 1989, and was accordingly issued an M-14 armalite
rifle. He recounted that in the afternoon of May 25, 1989, on his own initiative, he went to the
Office of SPO3 Rogelio Constantino, PNP, Lal-lo, Police Station to ask permission to go to the
then 117th Philippine Constabulary Company at Barangay Punta, Aparri, Cagayan, to report the
presence of some New Peoples Army members along the other side of the Cagayan River at Sitio
Sianig, Barangay Fabrica, Lal-lo, Cagayan. Accused-appellant left his M-14 armalite rifle with

one Rey Conseja, another CAFGU member, before going to Aparri, Cagayan. He arrived there at
around 3:00 oclock in the afternoon of May 25, 1989, and immediately reported to SPO3
Edgardo Daniel.[10]
Accused-appellant further testified that on his way to get a ride home, he met two police
officers in the person of SPO1 Porfirio Divina and SPO3 Amante Gorospe, who invited him to
have a drinking spree inside the headquarters of the PNP of Aparri. They later transferred to the
house of SPO1 Porfirio Divina where they resumed drinking. Accused-appellant spent the night
in said house. The following morning, May 26, 1989, at around 6:00 oclock, he left the house of
SPO1 Divina, rode a passenger jeepney and went straight home.[11] Accused-appellant claimed
that he ceased to be a member of the CAFGU and surrendered his M-14 armalite rifle on March
16, 1990. From then on, he stayed most of the time in Aparri, Cagayan, for fear of the NPAs who
were allegedly after him.[12]
The version of accused-appellant was corroborated by the testimony of SPO1 Porfirio
Divina, SPO3 Edgardo Daniel, SPO3 Rogelio Constantino and Patrolman Virgilio Camacam.
On February 2, 1994, the trial court rendered the judgment of conviction under review. The
dispositive portion thereof reads:

WHEREFORE, premises considered, this Court, in the interest of justice, after trial on
the merits of this case, finds LARRY CONSEJERO y Pascua, one of the two (2)
accused herein, Rommel Malapit, the other of the two (2) accused herein, being still
at-large, GUILTY beyond reasonable doubt, as principal, of the crime of Robbery
With Homicide, as defined and penalized under Article 293 and 294, No. 1 of the
Revised Penal Code, and hereby sentences him to suffer the penalty of RECLUSION
PERPETUA and to indemnify the Heirs of DIONISIO USIGAN, one of the two (2)
deceased victims herein, in the amount of FIFTY THOUSAND PESOS (P50,000.00),
Philippine Currency, as well as the Heirs of MODESTO OR DESTO CASTILLO, the
other of the two (2) deceased victims herein, in the amount of FIFTY THOUSAND
PESOS (P50,000.00), Philippine Currency, and to pay the costs of suit.
The bail bond set for the provisional liberty of Larry Consejero, one of the two
accused herein, is hereby cancelled and, immediately after the promulgation of this
Decision, the Officer-In-Charge of the Provincial Jail of Cagayan at Aparri, Cagayan
or his duly authorized representative, is hereby ordered to immediately transmit his
person for confinement at the Provincial Jail of Cagayan at Tuguegarao, Cagayan,
and, immediately thereafter, the Provincial Warden of Cagayan at Tuguegarao,
Cagayan shall transmit his person to the National Penitentiary at Muntinlupa, Rizal.
SO ORDERED.[13]
Hence, accused-appellant is before this Court, contending that:
I

THE REGIONAL TRIAL COURT ERRED IN CONSIDERING THE EVENTS

TESTIFIED TO BY MELCHOR PULIDO AS CONSTITUTING FACTS AND
CIRCUMSTANCES FROM WHICH GUILT COULD BE INFERRED; AND, IN
CONSIDERING SAID FACTS AND CIRCUMSTANCES TO HAVE BEEN
CORROBORATED BY OTHER PROSECUTION EVIDENCE;
II

ASSUMING THAT THE REGIONAL TRIAL COURT DID NOT COMMIT THE
FIRST ERROR, IT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF
MELCHOR PULIDO AS SAID TESTIMONY IS FILLED WITH
IMPROBABILITIES; AND, HE REVEALED TO THE AUTHORITIES HIS
KNOWLEDGE OF THE ALLEGED CRIME ONLY AFTER MORE THAN A
YEAR AND THREE MONTHS FROM THE TIME OF THE ALLEGED
COMMISSION OF THE CRIME.
III

THE REGIONAL TRIAL COURT ERRED IN REJECTING ACCUSEDAPPELLANTS DEFENSE OF ALIBI.[14]

The appeal is without merit.
Like a tapestry made up of strands which create a pattern when interwoven, the
circumstances proved should constitute an unbroken chain which leads to one fair and reasonable
conclusion, that the appellant is guilty beyond reasonable doubt. In other words, the
circumstances or a combination thereof, should point to overt acts of the appellant that would
logically usher to the conclusion and no other that he is guilty of the crime charged.[15] Thus, Rule
133, Section 4 of the Rules of Court, provides:

Sec. 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is

sufficient for conviction if:
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.
In the case at bar, the evidence presented by the prosecution established the following
circumstances pointing to the fact that accused-appellant was the author of the killing of the two
deceased and the unlawful taking of the engine of the motorized banca:

1) In the afternoon of May 25, 1989, the two deceased went out fishing at the Cagayan
River using Jaime Israels motorized banca with Briggs and Straton engine.
2) Between the hours of 8:00 and 9:00 oclock in the evening of May 25, 1989,
prosecution witness Melchor Pulido together with accused-appellant and accused
Rommel Malapit, who were both armed with M-14 armalite rifles, also went fishing at
the Cagayan River, particularly in Barangay Jurisdiccion, Lal-lo, Cagayan.
3) When the three were emptying the fish nets, they noticed a motorized banca
carrying two persons who turned out to be the two deceased. Accused-appellant asked
the two persons on board the motorized banca if they were the ones exacting quota
from Barangay Captain Bacuyan, to which they replied, No.
4) Accused-appellant requested the two deceased to accompany them to a nearby
store. When they reached the river bank the two accused took along with them
Dionisio Usigan and proceeded towards the northeast direction; while Modesto
Castillo was left on the river bank.
5) After ten minutes, accused-appellant, who was holding his armalite rifle, and
Rommel Malapit, who was clasping a 10-inch bolo in his hand, went back, but the
deceased Dionisio Usigan was no longer with them.
6) Accused-appellant ordered Rommel Malapit to tie the hands of Modesto Castillo,
which he obeyed using a portion of a fishnet. Thereafter, the two accused brought
Modesto Castillo towards the same northeast direction. That was the last time Castillo
was seen alive.
7) The two accused detached the engine of the motorized banca and loaded it in their
own banca while Melchor Pulido was asked by accused-appellant to stand as look-out.
8) On their way home, the two accused told Melchor Pulido that the two persons they
met were already dead. Accused-appellant also threatened to kill Melchor Pulido and
his family if Melchor would reveal what he knew.
9) When they alighted from the banca, Melchor Pulido saw the two accused bring the
engine to a cogonal area.
10) In the morning of May 26, 1989, the dead body of Modesto Castillo, which
sustained several stab wounds and whose hands were tied at his back with a portion of
a fishnet, was discovered not far from the river bank of Barangay Jurisdiccion, Lal-lo,
Cagayan. Twenty meters away was located the dead body of Dionisio Usigan with 31
stab wounds. The motorized banca of Jaime Israel was no longer recovered.

11) The result of the postmortem examination of the two deceased shows that the
approximate time of death was between 7:00 oclock p.m. to 12:00 midnight of May
25, 1989.
From the foregoing, it can be gleaned unerringly that an unbroken chain of circumstances
proven by the prosecution clearly shows the guilt of accused-appellant. Unequivocally
established is the fact that the two deceased were last seen alive in the company of accusedappellant Larry Consejero and accused Rommel Malapit. A combination of their concerted and
complementary acts vividly manifest a common criminal intent to kill the victims and to take the
engine of the motorized banca. Thus, their hostile approach towards the two deceased in
inquiring if they were the ones exacting quota from the barangay captain, their treacherous and
intimidating scheme in cajoling the two deceased to moor their banca, their strategic taking of
the two deceased one after the other and the violent act of tying the hands of Modesto Castillo,
not to mention the ten-inch bolo clasped in the hands of Rommel Malapit, all taken together with
the circumstances that the dead bodies of the two deceased were found the next morning in the
same place where they were last seen alive, usher to the inevitable conclusion of accusedappellants liability for the death of the two deceased. Likewise, the fact that the motorized banca
and the engine thereof were no longer found at the river bank where they were last seen, points
the liability for the loss of the engine to accused-appellant who was seen to have loaded said
engine in their banca on the night of May 25, 1989.
Similarly, in People v. Bionat,[16] the Court, based on circumstantial evidence, meted a
judgment of conviction on accused-appellant who, armed with a gun and together with others,
tied the victim and took him away from his house. The victim was last seen alive under such
circumstances and found dead the following day with stab wounds.
In the case at bar, the gamut of evidence upon which the trial court based its judgment of
conviction is anchored mainly on the testimony of prosecution witness Melchor
Pulido. Expectedly, attack on his credibility is proffered by the accused-appellant. The constant
rule in our jurisdiction, however, is that the Court will accord great respect to the factual
conclusions drawn by the trial court, particularly on the matter of credibility of a witnesses since
the trial judge had the opportunity which is denied to appellate courts to observe the behavior
and demeanor of witnesses while testifying. The trial judge is thus able to form at first hand a
judgment as to whether particular witnesses are telling the truth or not.[17]
Thus, the observation made by the trial court on the demeanor of Marcelo Pulido while
testifying, comes to the fore, to wit -

This Court, after observing the demeanor of ... Melchor Pulido ... has come to the
belief that the same was marked with spontaneity, clarity and candor, all of which
were perceptible in the emphasis, gesture and inflection of their voices, frankness of
their countenances, simplicity of their languages and total absence of artificiality in
their whole manner. It has also come to the belief that, in conformity with day-to-day
common knowledge, observation and experience of ordinary man, both ... [his]
person[s] and ... [his] testimonies can undoubtedly pass the test of solidly and firmly
set touchstones of credibility, for the reason that, aside from demonstrating characters

of truthfulness, both in ... [his] person[s] and in ... [his] testimonies, ... Melchor Pulido
... [has] not been positively, clearly and convincingly proven by the defense beyond
reasonable doubt, or in any manner whatsoever, to have been or to be nursing any bias
or prejudice against the cause of the defense, particularly against that of each of the
two accused herein, Larry Consejero and Rommel Malapit, who is still at-large, and,
more particularly, against the former, and/or to have uttered prior or subsequent
statements, which are inconsistent with ... [his] testimonies in open court during the
trial on the merits of this case, and/or to have failed to perceive the facts testified to by
... [him]. Indeed, the credibility of ... [his] person[s] and that of ... [his] testimonies ...
[has] been greatly enhanced, inasmuch as the same ... [has] neither been competently
impeached nor sufficiently rebutted, in any manner whatsoever, by the defense![18]
As the trial court gave full faith and credit to the testimony of Melchor Pulido which this
Court, after a careful scrutiny thereof, found to be credible and worthy of belief, the affirmance
of the decision under review is in order.
The delay of almost sixteen months before Melchor Pulido executed a sworn statement does
not in any way diminish the value of his testimony. As adequately explained by him, the threat
on his life and that of his familys cowed him to silence. It was only when accused-appellant was
no longer a CAFGU member, and hence, no longer armed, that he gained the courage to reveal
what he knew. Verily, delay or vacillation in reporting a crime does not negate the credibility of
a witness, especially when the delay is satisfactorily explained.[19]
The alleged improbabilities pointed out by accused-appellant are too inconsequential to
merit attention. As correctly argued by the Solicitor General, they refer merely to trivial matters
which do not alter the substance of Melchor Pulidos testimony positively identifying accusedappellant as one of the culprits. Moreover, accused-appellant cannot successfully make an issue
on the two deceaseds alleged improbable obedience to the orders of accused-appellant as well as
their failure to put up resistance. The same is true with respect to the failure of Melchor Pulido to
help the two deceased. Suffice it to say, Melchor Pulido as well as the two deceased were
understandably afraid to antagonize the accused-appellant who was then a CAFGU member and
armed with an M-14 armalite rifle. Besides, no standard form of behavior may be expected of
Melchor Pulido and the victims. Persons do not necessarily react uniformly to a given situation,
given that what may be natural to one may be strange to another.[20]
Anent the defense of alibi theorized by accused-appellant, the Court is of the opinion, and so
holds, that the same cannot prevail over the positive identification of accused-appellant by
Melchor Pulido as one of the culprits. According to accused-appellant, he was in Aparri,
Cagayan at around 3:00 oclock in the afternoon of May 25, 1989, until the following
morning. As testified, however, by Jaime Israel, he in fact met accused-appellant at around 4:30
in the afternoon of May 25, 1989, on his way home from the Bureau of Posts of Lal-lo,
Cagayan.[21] What is more, accused-appellant failed to prove the physical impossibility of his
presence at the scene of the crime at the time of the commission thereof. Settled is the rule that
for alibi to prosper it is not enough to prove that the accused was somewhere else when the crime
was committed, but he must also demonstrate that it was physically impossible for him to have
been at the scene of the crime at the time of its commission.[22]

The trial court found that the geographical distance between Barangay Minanga, Aparri,
Cagayan, and Barangay Jurisdiccion, Lal-lo, Cagayan is only twenty (20) kilometers, more or
less, which could be reached by traveling along the national highway by a motor vehicle for
twenty-five (25) to thirty (30) minutes more or less, or by motorized banca for one and a half (1
1/2) hours.[23] Thus, even assuming that accused-appellant was indeed in Aparri, Cagayan, at
around 3:00 oclock in the afternoon of May 25, 1989, the probability of his traveling back to Lallo, Cagayan, and his presence at the locus criminis at the time of the commission of the crime, is
not at all precluded. Hence, his defense of alibi must fail.
The crime committed by accused-appellant, however, could not be robbery with homicide.
The elements of said crime are as follows: a) the taking of personal property with the use of
violence or intimidation against a person; b) the property thus taken belongs to another; c) the
taking is characterized by intent to gain or animus lucrandi; and d) on the occasion of the
robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense,
was committed.[24]
In People v. Amania,[25] the Court had occasion to rule that in robbery with homicide, the
killing must have been directly connected with the robbery. It is necessary that there must have
been an intent on the part of the offenders to commit robbery from the outset and, on occasion or
by reason thereof a killing takes place. The original design must have been robbery, and the
homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or
must be perpetrated with a view to consummate the robbery. The taking of the property should
not be merely an afterthought which arose subsequent to the killing.
In the present case, it does not appear that the primary purpose of accused-appellant in
accosting the two deceased was to rob the engine of the motorized banca. From all indications,
accused-appellant, a CAFGU member, was primarily interested in taking the life of the two
deceased whom he suspected of exacting quota from the Barangay captain, and the taking of the
subject engine was merely an afterthought that arose subsequent to the killing of the victims.
Clearly therefore, the criminal acts of accused-appellant constitute not a complex crime of
robbery with homicide, but three separate offenses: two crimes for the killing of the two
deceased, and one for the taking of the Briggs and Straton engine of Jaime Israel.
With respect to Dionisio Usigan, the crime committed is homicide because the qualifying
circumstance of treachery alleged in the information cannot affect the liability of accusedappellant. There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from the defense which the offended party
might make.[26] Considering that no evidence on record showed that accused-appellant
consciously and purposely adopted means and methods that would make sure that the killing of
Dionisio Usigan would not cause any risk to himself, the crime committed is only homicide.
In the case of Modesto Castillo, the taking of his life was undoubtedly attended by the
qualifying circumstance of treachery. In tying Modesto Castillos hand at his back, accusedappellant obviously adopted a method that would insure the absence of any risk to himself which
might arise from the defense that may possibly be put up by Modesto Castillo. Hence, the crime
committed by accused-appellant is murder.

In taking the Briggs and Straton engine of the motorized banca, the crime perpetrated was
theft. In People v. Basao,[27] the Court ruled that where the taking of the personal property was
merely an afterthought and was done after the culprit has successfully carried out his primary
criminal intent to kill the victim, and hence, the use of violence or force is no longer necessary,
the crime committed is theft. Conformably, since the taking of the engine in the present case was
merely an afterthought, and was perpetrated after accused-appellant had already accomplished
his original criminal purpose of killing the two deceased, the felony committed is theft.
Then too, the aggravating circumstance of evident premeditation in the unlawful taking of
the engine cannot be considered here. Though alleged in the information, the prosecution failed
to substantiate the attendance of the elements[28] thereof in the unlawful taking of the engine.
The penalty for homicide is reclusion temporal. There being neither mitigating nor
aggravating circumstances, the appropriate penalty is reclusion temporal in its medium
period.[29] Applying the Indeterminate Sentence Law, accused-appellant is entitled to an
indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.
At the time accused-appellant perpetrated the crime of murder, the same was punishable
by reclusion temporal in its maximum period to death. Since there was neither aggravating nor
mitigating circumstance attendant in its commission, the proper penalty is reclusion perpetua.[30]
As shown by the receipt presented by Jaime Israel, he purchased the Briggs and Straton
engine for P3,786.00.[31] Under Article 309, paragraph 3, of the Revised Penal Code, theft is
punishable by prision correccional in its minimum and medium periods if the value of the
property stolen is more than P200.00 but does not exceed P6,000.00. Absent aggravating and
mitigating circumstances in the unlawful taking of the engine, the penalty for theft must be
imposed in its medium period.[32] With the application of the Indeterminate Sentence Law, the
proper penalty, as reparation for the unrecovered Briggs and Straton engine, is four (4) months
and twenty-one (21) days of arresto mayor, as minimum, to one (1) year, eight (8) months and
twenty-one (21) days of prision correccional, as maximum.
WHEREFORE, the decision of the Regional Trial Court of Aparri, Cagayan, Branch 86, in
Criminal Case No. VI-619, is SET ASIDE and another one is rendered, finding accusedappellant Larry Consejero y Pascua, GUILTY beyond reasonable doubt of the following crimes

1) Murder, for the killing of Modesto Castillo, for which he is sentenced to suffer the
penalty of reclusion perpetua;
2) Homicide, for the death of Dionisio Usigan, for which he is sentenced to suffer an
indeterminate penalty of eight (8) years and one (1) day of prision mayor, as
minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum.
3) Theft, for the unlawful taking of the Briggs and Straton engine of the motorized
banca owned by Jaime Israel, for which he is sentenced to suffer an indeterminate
penalty of four (4) months and twenty-one (21) days ofarresto mayor, as minimum, to

one (1) year, eight (8) months and twenty-one (21) days of prision correccional, as
maximum.
Accused-appellant is further ordered to indemnify the heirs of Modesto Castillo and Dionisio
Usigan the amount of Fifty Thousand Pesos (P50,000.00) each as indemnity ex delicto.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-66136 September 28, 1984
ELPIDIO EMPELIS, MAMERTO CARBUNGCO, SALVADOR CARBUNGCO and EMILIO
CARBUNGCO,petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT and THE PEOPLE OF THE
PHILIPPINES, respondents.
Roselito R. Apoya for petitioners,
The Solicitor General for respondents.

RELOVA, J.:
The then Municipal Circuit Court of Dimasalang-Palanan-Uson, Masbate convicted herein petitioners
of qualified theft of fifty coconuts valued at P50.00 and sentenced each of them to an indeterminate
penalty of from four (4) to eight (8) years and one (1) day, to restore to the owner of the stolen
coconuts, Guillermo Catarining the sum of P50.00 and to pay the costs.
From the foregoing judgment they went to the Intermediate Appellate Court claiming that the court a
quo erred: (1) in convicting all accused when there was no sufficient evidence to prove that they did
gather and steal the coconut fruits of the coconut plantation of Guillermo Catarining at Tambangan,
Dapdap, Uson, Masbate, Philippines; (2) in giving too much probative value to the evidence for the
prosecution and in discrediting that for the defense; and (3) in not acquitting all the accused of the
crime charged on the ground of reasonable doubt. (pp. 8-9, Rollo)
Respondent appellate court affirmed in toto the penalty imposed upon petitioners by the trial court.
Hence, instant petition which seeks to reduce the penalty imposed upon petitioners by the trial court,
which was affirmed in toto by respondent Intermediate Appellate Court. (p. 1, Rollo)

The facts as found by respondent Intermediate Appellate Court are as follows:

Prior to June 10, 1979, Guillermo Catarining owner of a coconut plantation in Sitio
Tambangan, Dapdap, Uson, Masbate, was frequently losing coconuts in his
plantation due to thievery. Thus, on the early morning of June 10, 1979, while he
stayed in his plantation to keep watch, he saw four (4) persons within the premises of
his plantation gathering and tying some coconuts. He then went home, fetched his
neighbors Anastacio Andales and Teodomero Garay and took along a flashlight.
Upon reaching the coconut plantation with his companions, Catarining beamed his
flashlight on the four persons who, turned out to be the herein appellants. Elpidio
Empelis and Emilio Carbungco were seen carrying coconuts on a piece of wood on
their shoulders while Salvad and Mamerto Carbungco were espied carrying coconuts
with their bare hands. As the four persons noticed the presence of Catarining and the
latter's companions, they dropped the coconuts they were carrying and fled leaving
behind about 50 pieces of coconuts valued at P50.00 and two poles, one made of
bamboo and the other of wood. (Exhs. A & A-1) Catarining invited the barangay
tanod to witness the counting of the coconuts abandoned by the four men. Upon the
advice of said tanod, Catarining reported the incident to the barangay captain who
accompanied him and his companions to the police station at Uson, Masbate where
Catarining filed his complaint. (pp. 47-48, Rollo)
The only issue raised with earnestness by petitioners is that the crime committed, if at all is simple
and not qualified theft as found by respondent court.
Article 310 of the Revised Penal Code states that the crime of theft shall "be punished by the
penalties next higher by two degrees than those respectively expressed in the next preceding article
... if the property stolen ... consists of coconuts taken from the premises of a plantation, ... ." Thus,
the stealing of coconuts when they are still in the tree or deposited on the ground within the
premises is qualified theft. When the coconuts are stolen in any other place, it is simple theft. Stated
differently, if the coconuts were taken in front of a house along the highway outside the coconut
plantation, it would be simple theft only.
In the case of People vs. Isnain, 85 Phil. 648, this Court held that "[i]n the matter of theft of coconuts,
the purpose of the heavier penalty is to encourage and protect the development of the coconut
industry as one of the sources of our national economy. Unlike rice and sugar cane farms where the
range of vision is unobstructed, coconut groves can not be efficiently watched because of the nature
of the growth of coconut trees; and without a special measure to protect this kind of property, of will
be as it has been in the past the favorite resort of thieves."
In the case at bar, petitioners were seen arriving away fifty coconuts while they were still in the
premises of the plantation. They would therefore come within the definition of qualified theft because
the property stolen consists of coconuts taken from the premises of a plantation.
However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felon as a consequence. They
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.
WHEREFORE, the judgment of conviction is hereby AFFIRMED but modified in the sense that the
crime committed is only frustrated qualified theft and petitioners Elpidio Empelis, Mamerto
Carbungco, Salvador Carbungco and Emilio Carbungco are each sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day ofarresto mayor, as minimum, to two (2)

years and four (4) months and one (1) day, of prision correccional, as maximum, and to pay the
costs
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.