PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
CHARLIE
OROSCO, Accused-Appellant.
DECISION
VILLARAMA, JR., J.:
On appeal is the Decision 1 dated March 22, 2013 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 05171 which affirmed the
Decision2 dated June 24, 2011 of the Regional Trial Court of Legazpi
City, Branch 10 finding the accused-appellant Charlie Orosco guilty
of the crime of Robbery with Homicide.
Appellant, along with Abner Astor, John Doe and Peter Doe,
were charged with Robbery with Homicide defined and penalized
under Article 294 of the Revised Penal Code, as amended. The
Information reads as follows:
That on or about the 16 th day of May, 2006, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and helping one
another, with intent of gain and by means of violence, did then and
there [willfully], unlawfully, feloniously and forcibly enter the store
owned by one Lourdes Yap situated at Purok 4, Barangay Rawis,
Legazpi City, and once inside said store, take, steal and carry away
cash money, to the damage and prejudice of said Lourdes Yap, and
by reason of or on occasion of said robbery, and for the purpose of
enabling them to take, steal and carry away the aforesaid cash
money in pursuance of their conspiracy, did then and there
[willfully], unlawfully and feloniously and taking advantage of their
superior strength and with intent to kill, attack, assault and stab the
aforesaid Lourdes Yap, thereby inflicting upon her injury which
directly caused her untimely death, to the damage and prejudice of
her legal heirs.
The factual scenario presented by the prosecution is based on the
eyewitness account of Albert M. Arca (Arca), the postmortem
findings of Sr. Pol. Chief Insp. Dr. James Margallo Belgira who
conducted the autopsy on the cadaver of the victim, and the
victims grandson, Ryan Francis Yap.
Arca testified that on May 16, 2006, about one oclock in the
afternoon, he went to the store of Lourdes Yap (Yap) at Purok 4,
Barangay Rawis, Legazpi City. He was buying ice but it was not yet
hardened (frozen) so he went home. At around two oclock, he was
again sent on errand to buy ice at the same store. After purchasing
the ice, he noticed there was a verbal tussle between Yap and two
male customers. The men were arguing that they were given
insufficient change and insisting they gave a P500 bill and not
P100. When Yap opened the door, the two men entered the store.
From outside the store and thru its open window grills, he saw one
of the men placed his left arm around the neck of Yap and covered
her mouth with his right hand while the other man was at her back
restraining her hands. He recognized the man who was holding the
hands of Yap as Charlie Orosco (appellant), while he described the
man who covered her mouth as thin, with less hair and dark
complexion. The latter stabbed Yap at the center of her chest.
When they released her, she fell down on the floor. Appellant then
took a thick wad of bills from the base of the religious icon or
santo at the altar infront of the stores window, after which he
and the man who stabbed Yap fled together with two other men
outside who acted as lookouts. Arca went near the bloodied victim
but also left and went home afraid because he was seen by one of
the lookouts.4cralawred
Yap was brought to the Aquinas University Hospital but she was
declared dead on arrival. Later, at the National Bureau of
Investigation (NBI) Legazpi City District office, Arca gave
descriptions of the faces of appellant and the dark thin man who
stabbed Yap (John Doe). From a surveillance digital photo and
video clip shown to him, Arca positively identified Abner Astor
(Astor) as one of the two men sitting beside the store as lookouts.
Consequently, warrants of arrest were issued against appellant and
Astor. But only appellant was arrested as Astor, John Doe and Peter
Doe remained at large.
Dr. Belgira affirmed the findings in his Medico-Legal
Report5 stating:chanRoblesvirtualLawlibrary
TRUNK:
1) Stab wound, left anterior costal region, measuring 2 x 0.5 who robbed and killed Yap but refused to pinpoint him in open
cm, 5 cm from the anterior midline, 9 cm deep. The wound court, thus:chanRoblesvirtualLawlibrary
tract is directed posteriorwards, upwards and medialwards, ACP NUQUI
cutting the sixth anterior thoracic rib and piercing the heart. xxxx
CONCLUSION:
The cause of death is hemorrhagic shock secondary to a stab
wound of the trunk.cralawlawlibrary
He explained that it was possible that the lone stab wound caused
by a sharp object, such as a knife, was inflicted while the victim
was standing, and found no other injuries such as defense
wounds.6cralawred
For his defense, appellant testified that on the date and time of the
incident, he was at his house in Bigaa taking care of his three-year-
old child while his wife was washing clothes. He stayed in the
house until his wife finished the laundry at past 3:00 p.m. He
denied knowing Yap and his co-accused Astor. While he admitted
that he was a resident of Purok 4, Bgy. Rawis, his family transferred
to their other house at Bigaa. He denied knowing Arca and he does
not know of any motive for Arca to testify against him. He worked
in a copra company in Lidong but stopped reporting for work after
May 16, 2006 as he was selling fish. He was arrested by the police
at the rotunda in Legazpi when he was buying medicine for his sick
child.7cralawred
Appellants wife, Teresa Magdaong-Orosco also testified to confirm
that at the time of the incident he was at their house while she was
doing the laundry just adjacent to their house. On cross-
examination, she was asked the distance between their place and
Bgy. Rawis and she replied that it will take less than one hour from
Bigaa to Rawis.8cralawred
On June 24, 2011, the trial court rendered judgment convicting
appellant of the crime charged, thus:chanRoblesvirtualLawlibrary
WHEREFORE, above premises considered, the Court hereby finds
accused Charlie Orosco GUILTY of the crime of robbery with
homicide. He is hereby sentenced to suffer the penalty of reclusion
perpetua, to pay the heirs of Lourdes Yap P75,000.00 as civil
indemnity for the fact of death, P75,000.00 as moral damages and
P30,000.00 as exemplary damages.
Insofar as the other accused is concerned, the case is hereby sent
to the archives, pending their eventual arrest.
So Ordered.9cralawlawlibrary
Appellant went to the CA but his appeal was dismissed. The CA
upheld his conviction as it found no compelling reason to deviate
from the factual findings and conclusions of the trial court.
In this petition, appellant reiterates the arguments he raised before
the CA that the trial court erred in giving credit to the
uncorroborated eyewitness testimony of Arca who could not point
to him during the trial, and that even granting that criminal charges
may be imputed against him, it should only be robbery and not the
complex crime of robbery with homicide considering the fact that it
was not him who stabbed Yap.
The appeal lacks merit.
It is settled that witnesses are to be weighed not numbered, such
that the testimony of a single, trustworthy and credible witness
could be sufficient to convict an accused. The testimony of a sole
witness, if found convincing and credible by the trial court, is
sufficient to support a finding of guilt beyond reasonable doubt.
Corroborative evidence is necessary only when there are reasons to
warrant the suspicion that the witness falsified the truth or that his
observation had been inaccurate.10cralawred
In this case, both the trial and appellate courts found the testimony
of the lone eyewitness, Arca, convincing notwithstanding that he
was quite slow in narrating the incident to the court and that he
initially desisted from physically pointing to appellant as the one
who held Yaps hands from behind and took her money at the store
after she was stabbed by appellants cohort (John Doe).
In his direct examination, Arca named appellant as one of those
Q. This person who was holding the hands of Lourdes Yap, were
1
 you able to identify him? WITNESS (answering)
A. Yes, sir. A. I cant afford to point at him.
Q. Do you know the name of this person? ACP NUQUI (to the witness)
A. Yes, sir. He is Charlie. Q. Why?
Q. Do you know the family name? A. I am afraid.
A. Orosco, sir. COUR
Q. If this Charlie Orosco whom you said was then holding the T
hands of Lourdes Yap, if he is in Court, would you please He can not because he is afraid.12 (Emphasis supplied)
point to him? cralawlawlibrary
WITNESS (answering)
A. Yes, sir. At the next hearing, Arca was recalled to the witness stand and this
Q. Please look around you and point at him. time he was able to pinpoint appellant as among those persons
A. He is here. who robbed and killed Yap, thus:chanRoblesvirtualLawlibrary
Q. If he is in Court, please point at him. PROSECUTOR NUQUI
Q. Why cant you point at him? Q- You mentioned that you saw two (2) persons talking to
COURT INTERPRETER Lourdes Yap. Who are these persons you are referring to?
At this juncture, the witness is somewhat trembling. ATTY. CHAN
ACP NUQUI Your Honor please, we are again registering our objection.
Oh, you see. COURT
ATTY. BAARES Witness may answer.
The witness can not answer. WITNE
ACP NUQUI SS
By the look of the witness, Your Honor, he is afraid. A- Charlie Orosco and a certain thin person.
Perhaps. PROSECUTOR NUQUI
xxxx Q- Why are you able to say that Charlie Orosco was one of the
ACP NUQUI (continuing) persons talking, how long have you known Charlie Orosco?
Q. Please point at him. A- He always go with a fisherman and act as helper and
ATTY. BAARES because of that I know him.
We have already foreseen the witness to pinpoint at anyone. xxxx
ACP NUQUI PROSECUTOR NUQUI
No. He said that the. Q- You mentioned that you have long known Charlie
ATTY. BAARES Orosco. Will you look around and point to him if he is
Then, let him voluntarily do it. in Court?
ACP NUQUI INTERPRETER
Okay. At this juncture, the witness is pointing to a man
ATTY. BAARES wearing a yellow T-shirt with handcuff and when
Your Honor, I move that the prosecutor will transfer to asked answered by the name of Charlie Orosco.
another question because we keep on waiting already. PROSECUTOR NUQUI
ACP NUQUI No further questions Your Honor.13
Your Honor, it is understandable that even he is slow, he cralawlawlibrary
keeps on glancing at the person.
COUR Assessing the identification made by Arca, the trial court concluded
T that he had positively identified appellant as one of the
Observations are all noted. perpetrators of the robbery and killing of
xxxx Yap, viz:chanRoblesvirtualLawlibrary
ACP NUQUI Here, Albert Arca, the prosecutions main witness, positively
At this point, Your Honor, I would like to make of record that identified accused Orosco as one of [the] two men who robbed and
when it comes to the person of Charlie Orosco, Your Honor, killed Lourdes Yap on that fateful day. As observed by the trial
he stopped and did not say ---- he did not nod or do anything court during the bail hearings, when asked to identify one of the
of what he has been doing when the other persons were men who robbed and killed the victim, Arca was trembling and
identified. constantly looking towards the direction of accused Orosco. Though
COUR simple-minded, Arca was well-aware of the possible consequences
T his testimony could trigger. To the Courts mind, Arcas act of
Okay. Noted.11 constantly looking towards Oroscos direction whenever he was
asked to point out one of the culprits, is a mute but eloquent
Arca continued with his testimony on how Yap was stabbed by manner of identifying Orosco as one of the perpetrators of the
appellants companion and appellant taking the thick wad of P1,000 crime. As such, Arcas act is sufficient identification already.
bills before fleeing along with the two lookouts. When asked for the
fourth time to pinpoint appellant, Arca was still hesitant: Later, when Arca was recalled to the stand to answer some
additional questions, he was able to gather enough courage to
Q. Now, is this Charlie Orosco here in Court? point out to Orosco as the man who held the hands of Lourdes Yap
A. Yes, sir, he is around. while his companion stabbed her. Arca stated that he was hesitant
Q. This person who took the money or Charlie Orosco you said to identify and point out accused earlier because he feared what
he is in Court, will you please look at him. Orosco might do to him. Incidentally, both Orosco and his wife
xxxx stated that they do know neither Albert Arca nor Lourdes Yap.
ACP NUQUI (continuing) Thus, it appears that there is no reason whatsoever for Arca to lie
Q. Is he now in Court? and attribute the crime to Orosco. Following settled jurisprudence,
A. Yes, sir. Arcas positive identification of Orosco prevails over the latters
Q. Please point at him. alibi.14cralawlawlibrary
ATTY BAARES
The same observation, Your Honor. We find no compelling or cogent reason to deviate from the findings
COUR of the trial court on its evaluation of Arcas testimony. The well-
T settled rule in this jurisdiction is that the trial courts findings on the
Oh, the same observation? credibility of witnesses are entitled to the highest degree of respect
ACP NUQUI and will not be disturbed on appeal without any clear showing that
Yes, Your Honor, he is hesitant. It is understandable because it overlooked, misunderstood or misapplied some facts or
he is afraid. circumstances of weight or substance which could affect the result
xxxx of the case.15cralawred
COURT (to the witness)
Q. Why can you not point at Charlie Orosco who Appellant repeatedly harped on the hesitation of Arca to point to
according to you he is inside the Court? him at the trial. However, as the trial courts firsthand observation
2
of said witness deportment revealed, Arcas fear of appellant
sufficiently explains his initial refusal to point to him in open court
during his direct examination. Arca was finally able to point to
appellant as one of the perpetrators of the robbery and killing of
Yap during his additional direct examination when he had
apparently mustered enough courage to do so.
Robbery with homicide is defined under Article 294 of the Revised
Penal Code, as amended, which provides in
part:chanRoblesvirtualLawlibrary
Art. 294. Robbery with violence against or intimidation of persons
Penalties. Any person guilty of robbery with the use of violence
against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been
committed, or when the robbery shall have been accompanied by
rape or intentional mutilation or arson.cralawlawlibrary
The elements of the crime of robbery with homicide are: (1) the
taking of personal property is committed with violence or
intimidation against persons; (2) the property taken belongs to
another; (3) the taking is done with animo lucrandi; and (4) by
reason of the robbery or on the occasion thereof, homicide (used in
its generic sense) is committed. 16 Homicide is said to have been
committed by reason or on the occasion of robbery if it is
committed (a) to facilitate the robbery or the escape of the culprit;
(b) to preserve the possession by the culprit of the loot; (c) to
prevent discovery of the commission of the robbery; or (d) to
eliminate witnesses to the commission of the crime. 17 In robbery
with homicide, the original criminal design of the malefactor is to
commit robbery, with homicide perpetrated on the occasion or by
reason of the robbery. The intent to commit robbery must precede
the taking of human life. The homicide may take place before,
during or after the robbery.18cralawred
Here, the homicide was committed by reason of or on the occasion
of the robbery as appellant and John Doe had to kill Yap to
accomplish their main objective of stealing her money. The earlier
verbal tussle where the two pretended to have paid a greater
amount and asked for the correct change was just a ploy to get
inside the store where the victim kept her earnings. To verify
whether the cash payment was indeed a P500 or P100 bill, the
victim let them enter the store but once inside they got hold of her
and stabbed her. Appellant, however, argues that if he had
committed any offense, it was only robbery since Arca testified that
it was John Doe, whom he described as a thin man, who stabbed
the victim.
We disagree.
The evidence presented by the prosecution clearly showed that
appellant acted in conspiracy with his co-accused. Appellant and
John Doe first engaged the unsuspecting victim in a verbal
altercation until she allowed them to enter the store. Upon getting
inside, they held the victim with John Doe wrapping his arm around
her neck while appellant held her hands at the back. With the
victim pressed between the two of them, John Doe stabbed her
once in her chest before releasing her. Once she fell down,
appellant quickly took the money placed at the altar inside the
store and fled together with John Doe and the two lookouts outside
the store. All the foregoing indicate the presence of conspiracy
between appellant and his co-accused in the perpetration of
robbery and killing of the victim.
It must be stressed that appellant played a crucial role in the killing
of the victim to facilitate the robbery. He was behind the victim
holding her hands while John Doe grabbed her at the neck. His act
contributed in rendering the victim without any means of defending
herself when John Doe stabbed her frontally in the chest. Having
acted in conspiracy with his co-accused, appellant is equally liable
for the killing of Yap.
As we held in People v. Baron19cralawred
The concerted manner in which the appellant and his companions
perpetrated the crime showed beyond reasonable doubt the
presence of conspiracy. When a homicide takes place by reason of
or on the occasion of the robbery, all those who took part shall
be guilty of the special complex crime of robbery with
homicide whether they actually participated in the killing,
unless there is proof that there was an endeavor to prevent
3
the killing. There was no evidence adduced in this case that the
appellant attempted to prevent the killing. Thus, regardless of the
acts individually performed by the appellant and his co-accused,
and applying the basic principle in conspiracy that the act of one is
the act of all, the appellant is guilty as a co-conspirator. As a
result, the criminal liabilities of the appellant and his co-accused
are one and the same. (Emphasis supplied)cralawlawlibrary
In sum, the CA did not err in affirming the conviction of appellant
for robbery with homicide. Appellant was positively identified by
prosecution eyewitness Arca as among those who perpetrated the
robbery and killing of Yap at the latters store on May 16, 2006 in
Bgy. Rawis, Legazpi City. This positive identification prevails over
accuseds defense of alibi. As pointed out by the trial court, it was
not physically impossible for appellant to be at the scene of the
crime considering the presence of many public conveyances which
would drastically cut the one hour walk from Bigaa to Rawis to only
a couple of minutes.20cralawred
On the award of damages, the trial court was correct in sentencing
appellant to suffer the penalty of reclusion perpetua and ordering
him to pay P75,000.00 as civil indemnity for the fact of death and
P75,000.00 as moral damages, conformably with prevailing
jurisprudence.21 We also find the award of exemplary damages in
the amount of P30,000.00 proper due to the presence of the
aggravating circumstances of treachery and abuse of superior
strength, though these were not alleged in the information. While
an aggravating circumstance not specifically alleged in the
information (albeit established at trial) cannot be appreciated to
increase the criminal liability of the accused, the established
presence of one or two aggravating circumstances of any kind or
nature entitles the offended party to exemplary damages under
Article 2230 of the Civil Code because the requirement of specificity
in the information affected only the criminal liability of the accused,
not his civil liability.22cralawred
The aforesaid sums shall earn the legal interest at the rate of six
percent (6%) per annum from the finality of judgment until full
payment.
WHEREFORE, the appeal is DISMISSED. The Decision dated
March 22, 2013 of the Court of Appeals in CA-G.R. CR-HC No. 05171
affirming the Decision dated June 24, 2011 of the Regional Trial
Court of Legazpi City, Branch 10 in Criminal Case No. 10916
is AFFIRMED. The sums awarded as civil indemnity (P75,000.00),
moral damages (P75,000.00) and exemplary damages (P30,000.00)
shall earn legal interest at the rate of 6% per annum from the
finality of judgment until full payment.
With costs against the accused-appellant.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOCSIN
FABON @ "Loklok," accused-appellant.
DECISION
PER CURIAM:
Circumstantial evidence coupled with accused-appellant's flight
from the town where the crime as committed sealed his fate and
merited his conviction of a heinous crime and the corresponding
imposition of the supreme penalty of death. h Y
In an information filed before the Regional Trial Court of Hilongos,
Leyte, docketed as Criminal Case No. H-642, accused-appellant
Locsin Fabon, alias "Loklok." was charged with the crime of robbery
with homicide accompanied by rape and intentional mutilation.
[1]
The information reads:
That on or about the 23rd day of April 1995, in
the Municipality of Hilongos, Province of Leyte,
Philippines and within the jurisdiction of this
Honorable Court, said accused at the house of the
victim did then and there, willfully, unlawfully and
feloniously with intent to gain by means of force
and violence against one BONIFACIA LASQUITE,
take and carry away, sum of money consisting of
bills of assorted denominations and coins
amounting to TWENTY FIVE THOUSAND PESOS
(P25,000.00) more or less, Philippine Currency,
and by reason or on occasion of the robbery the
same accused attack (sic) and take (sic) the life
of the victim with the use of [a] bladed weapon,
thus wounding:
 1. Lacerated wound on (R) side of the forehead
about 0.5 cm. x 0.2 cm. with a depressed skull
fracture;
2. Stabbed (sic) wound (punctured-like) at the (R)
side of the epigastic area;
3. Stabbed (sic) wound (punctured-like) at the 3rd
intercostal space (L) parasternal line;
4. Depressed fracture (L) parieto-occipital area;
5. Hematoma formation, lower jaw and at the
base of the neck;
6. Multiple hematoma formation at the epigastic
area, RUQ and anterior chest wall; which clearly
evince the manifest and intentional mutilation of
victim's person or corspe (sic); and likewise on
the same occasion of the robbery, rape has (sic)
been committed by the same accused on the
person of the victim, BONIFACIA LASQUITE, as
shown by the autopsy report, thus:
7. Hematoma formation noted on both sides of
vaginal canal and near urethral opening;
8. Hematoma formation (L) hand, dorsal aspect of
metacarpo-phalangeal joint;
9. Tonge (sic) half bitten and directed to the right
side.
ACTS CONTRARY TO LAW.[2]
Upon being arraigned on 26 September 1995, accused-appellant,
assisted by counsel de oficio, Atty. Mario Alonzo of the Public
Attorney's Office, pleaded "not guilty" to the offense charged. [3]
The prosecution presented Benjamin Milano, the nine (9) year old
nephew and neighbor of the accused-appellant, as its first witness.
He testified that on 23 April 1995, at around five o'clock in the
morning, he was awakened by his mother to fetch water for their
morning meal.[4] Bringing along a container, he then proceeded to
the water pump of Bonifacia Lasquite, located at the back of the
latter's house.[5] After filling up his container, he then went on his
way home.[6] However, while still near the house of Bonifacia
Lasquite, he noticed that someone was coming from the fence of
Bonifacia Lasquite's house.[7] Although it was still a little dark,[8] he
recognized it to be his uncle, accused-appellant. [9] While standing
only five (5) meters away, [10] accused-appellant asked him: "Toy, is
there somebody fetching water?"[11] He responded in the negative.
He noticed that the forehead, t-shirt and hair of accused-appellant
were stained with blood. [12] He also noticed that accused-appellant
was carrying a plastic bag[13] and had a bolo tucked in his pants.
[14]
Accused-appellant then walked away in a hurried manner while
repeatedly looking over his shoulders.[15] Later on in the day, he
was informed by a certain Emma about the death of their neighbor,
Bonifacia Lasquite.[16] Because of this, he informed Roberto
Lasquite, the son of Bonifacia Lasquite, of his encounter with
accused-appellant in the early morning of the ill-fated day.[17]
The second witness presented by the prosecution was Mario
Vinculado. He testified that he has been a resident of Brgy. Santa
Cruz, Hilongos, Leyte, since his birth and, as such, he knows both
accused-appellant and the victim.[18] Sometime in the second week
of August of 1995, he went to Ampayon, Butuan City together with
a police officer named Lumayno from the Hilongos Police Station.
[19]
He went to the said town because he was requested by Roberto
Lasquite to accompany police officer Lumayno in ascertaining
whether accused-appellant was indeed in Ampayon pursuant to an
information sent by the Butuan Police Station to the Hilongos Police
Station.[20] When they arrived in Ampayon, they went to the
municipal jail where they found accused-appellant being
investigated by the police.[21] After the investigation, accused-
appellant asked Mario Vinculado if they could have a talk. [22] During
their conversation, accused-appellant informed Mario Vinculado
that he had a companion when he assaulted Bonifacia
Lasquite[23] and that he was only able to stab the victim twice in the
breast.[24] Upon Mario Vinculado's return to his hometown, he
informed the Hilongos police and Roberto Lasquite of the admission
made to him by accused-appellant. Jksm
The prosecution then presented Dr. Conrado Abiera as its expert
witness. He testified that on 23 April 1995, he conducted an
autopsy on the victim and, correspondingly, accomplished a gross
autopsy report.[25] The gross autopsy report reads: Chief
Name: BONIFACIA FABON LASQUITE Age: 64 years
old
Address: Brgy. Sta. Cruz, Hilongos, Leyte Sex:
Female
Civil Status:
Widow
Occupation: Housekeeper
4
Requesting Officer: Jaime S. Yamba
Sr. Insp. PNP
Acting Chief of Police
Date & Time of Autopsy: April 23, 1995 at 2:10
p.m.
Place of Autopsy: Brgy. Sta. Cruz, Hilongos, Leyte
General Survey: Fairly build (sic), fairly nourished,
fairly developed, whole body covered with with
(sic) blanket, when removed the face is (sic)
covered with moist, torned (sic) cloth the upper
half of the body covered with cloth and lower half
naked, in the state of cadaveric spasm with
hematoma formation on the jaw and base of the
neck, lacerated wound on the forehead, stabbed
(sic) wound on the anterior chest wall and
multiple hematoma formation on the anterior
chest wall.
Pertinent Findings:
1. Lacerated wound on (R) side of the forehead
about 0.5 cm. x 0.2 cm. with a depressed skull
fracture.
2. Stabbed (sic) wound (punctured-like) at the (R)
side of epigastric area.
3. Stabbed (sic) wound (punctured-like) at the 3rd
intercostal space (L) parasternal line.
4. Depressed fracture (L) parieto-occipital area.
5. Hematoma formation, lower jaw and at the
base of the neck.
6. Multiple hematoma formation at the epigastric
area, RUQ and anterior chest wall.
7. Hematoma formation noted on both sides of
vaginal canal and near the urethral opening.
8. Hematoma formation (L) hand, dorsal aspect of
metacarpo-phalangeal joint.
9. Tongue half-bitten and directed to the right
side.
Cause of Death: Internal Hemorrhage due to
stabbed (sic) wound at the heart and liver area.
Suffocation secondary to strangulation.
(signed)
DR. CONRADO B. ABIERA III
Medical Officer III[26]
During his testimony, Dr. Abiera clarified the statements he made
in the gross autopsy report. He stated that lacerated wound in the
victim's forehead and the depressed skull fracture, reported as the
first item under the heading Pertinent Findings, signified that the
victim was hit with a blunt instrument which could have been a
stone, a piece of wood or the back portion of a bolo. [27] He added
that the same blunt instrument may have also been used in the
depressed fracture in the parieto-occipital area. [28] Dr. Abiera also
explained that the punctured-like stab wounds, reported as the
second and third items under the heading Pertinent Findings,
meant that the assailant used an instrument similarly shaped as an
ice pick or a sharpened welding rod.[29] With regard to the
hematoma formation at the lower jaw and at the base of the neck,
reported as the fifth item above, this signifies that the victim was
strangled.[30] Dr. Abiera added that the strangulation of the victim
caused her to struggle for air and, in the process, she probably bit
her tongue which, thus, accounts for the finding in the ninth
item above.[31] He concluded that this strangulation could not have
been caused by a wire or a rope since these instruments would
have left marks in the neck of the victim. In his expert opinion, Dr.
Abiera deduced that the victim was strangled through the use of a
handkerchief or some other piece of cloth. [32] With regard to the
hematoma formation in the vaginal canal and near the urethral
opening, the seventh item above, he explained that this could
mean that the victim was raped. [33] However, he clarified that he
cannot assert such conclusion with certainty because he did not
examine if there were sperm cells in the victim's vagina since the
autopsy was conducted in a barrio where there was no laboratory.
[34]
Looking at the gross autopsy report in its entirety, Dr. Abiera
concluded that the assault on the victim could have been done by
more than one assailant considering that three devices were used
in attacking the victim, i.e., a blunt object, an ice-pick like tool and
a cloth-like instrument. On the aspect of mutilation, Dr. Abiera
stated that no vital part of the victim's body was severed which,
thus, negates mutilation.[35]
The fourth and final witness for the prosecution was the son of the
victim, Roberto Lasquite. He testified that on 22 April 1995, he went
with a friend to Sitio Panas, Brgy. Bilibol, Southern Leyte, to attend
a fiesta.[36] He stayed in the said place until the following day. On 23
April 1995, at around ten o'clock in the morning, a certain Costan
Taping informed him that his mother was dead. [37] He immediately
went home together with Costan Taping and his fiancee and arrived
at their house at noon of the same day.[38] He found his mother lying
dead on the kitchen floor with their things scattered. [39] When he
searched for the shell where they kept their money, it was no
longer in its hiding place in their cabinet. [40] Inside the missing shell
was the Twenty Five Thousand Pesos (P25,000.00) that was sent to
them by the victim's sister who lives in Denmark. [41] Later on in the
day, Benjamin Milano informed him of his encounter with accused-
appellant while he was fetching water. [42] Because of this, he and
the barangay tanods looked for accused-appellant. [43] They
searched for accused-appellant for more than a month but could
not find him.[44] He only learned about the whereabouts of his
mother's assailant when he was informed by police officer Lumayno
that accused-appellant had been arrested in Butuan City. [45] Roberto
Lasquite then went to their councilor, Mario Vinculado, to request
the latter to go to Butuan City and confirm if accused-appellant
indeed killed his mother. Esm
In his defense, accused-appellant took the witness stand and
denied the accusations against him. He testified that he was
registered as a resident of Brgy. Bliss but he actually resides in the
house of his brother in Brgy. Sta. Cruz,[46] which is around 380
meters away from the house of Bonifacia Lasquite, her aunt.[47] He
stated that in the morning of 22 April 1999, he was with his live-in
partner, Prima Naul, washing clothes since they were preparing to
leave for Butuan City the following day [48] in order to look for her
live-in partner's long lost father.[49] At noon of the same day, he and
Prima Naul went to his mother's house to have lunch.[50] They left
his mother's house at around one oclock in the afternoon and
returned to their house.[51] He turned in for bed at around nine
o'clock in the evening and woke up at 5:30 a.m. the following day,
23 April 1995.[52] He then prepared their provisions for their Butuan
trip and finished at around 8:00 a.m.[53] Thereafter, he went to the
house of the Brgy. Captain of Brgy. Bliss to get a residence
certificate.[54] He was informed by the Brgy. Captain that he can get
his residence certificate from the Brgy. Secretary, Mrs. Lumayno.
[55]
He went to the house of Mrs. Lumayno and was able to get a
residence certificate.[56] He and his live-in partner then proceeded
to Butuan City and arrived thereat in the morning of the following
day.[57] During their stay in Butuan City, they were unable to locate
her live-in partner's father. When inquired upon with regard to the
testimony of Benjamin Milano, accused-appellant denied that he
saw the child in the morning of 23 April 1995. On cross-
examination, accused-appellant testified that he does not know of
any reason why Benjamin Milano testified the way he did. [58] He also
admitted having seen Mario Vinculado in the police station while he
was incarcerated and being investigated in Butuan City on account
of another charge for robbery. [59] Despite his having seen Mario
Vinculado, he denies having spoken with the latter and that he
admitted to killing the victim.[60] He reasoned that he was unable to
speak with Mario Vinculado since he was being investigated by the
police.[61] He also stated that when he left for Butuan City, he was
not aware that Bonifacia Lasquite was dead. [62] He, however,
admitted that while he was in Butuan City, he was informed by a
certain Citas about the killing of the victim and that he was being
made responsible for the same.[63] Nevertheless, despite learning of
this matter, he admitted not having exerted any effort to inform
Roberto Lasquite of his innocence and justified his complacency
with the excuse that he had differences with Roberto Lasquite.
[64]
Their differences arose sometime in 1992 when he was accused
by Roberto Lasquite of having stabbed the latter's carabao.
[65]
Accused-appellant also admitted having escaped from prison
during the pendency of the present case before the lower court.
[66]
He was, however, recaptured by prison guards for which he
suffered a gunshot wound. [67] When asked why he escaped,
accused-appellant reasoned that his decision to escape was due to
the fact that he was denied his conjugal visits by prison authorities
since Prima Naul was only his live-in partner.[68]
The second and last witness presented by the defense was
Remedios Lumayno, the secretary of the barangay who issued
accused-appellant's residence certificate. [69] She corroborated the
testimony of accused-appellant that the latter obtained a residence
certificate from her on 23 April 1995 at around eight o'clock in the
morning.[70] She also stated that when accused-appellant secured
his residence certificate, the latter explained to her that he was
going to use it for his trip to Marangog where he will harvest
coconut.[71]
In its Decision, dated 15 December 1997, the lower court convicted
accused-appellant of the crime of robbery with homicide and rape
5
aggravated by dwelling. The pertinent portion of the decision
reads: Esmsc
There having been sufficient and convincing
evidence by the prosecution, the court finds and
so holds the accused liable for robbery with
homicide and rape as charged. Robbery with
Homicide is defined and penalized under Article
294, number 1 of the Revised Penal Code, as
amended by R.A. 7659 with the penalty of
Reclusion Perpetua to Death, when by reason or
on occasion of the robbery, the crime of Homicide
shall have been committed or when the robbery
shall have been accompanied by rape or
intentional mutilation or arson. The homicide
committed by the accused on the occasion of the
robbery of victim Bonifacia Lasquite was
perpetrated inside her home. Consequently, the
aggravating circumstance of dwelling should be
appreciated to maximize the penalty.
WHEREFORE, premises considered, the Court
finds the accused LOCSIN FABON, alias "Loklok"
GUILTY beyond reasonable doubt of the crime of
Robbery with Homicide and Rape, penalized
under Article 294, number 1 of the Revised Penal
Code, as amended by R.A. 7659 and there being
aggravating and no mitigating circumstance
hereby SENTENCES him to suffer the maximum
penalty of DEATH.
In addition, the accused is ordered to pay the
heirs of the victim Bonifacia Lasquite the
following sums: Esmmis
a. P50,000.00 as indemnity for Bonifacia
lasquite's death;
b. To pay the sum of P25,000.00 by way of
reparation of the stolen cash money.
Cost taxed against the accused.
SO ORDERED.[72]
The case is now before us on automatic review pursuant to Section
10 of Rule 122.
Parenthetically, we note that the trial court inaccurately designated
the crime committed as "robbery with homicide and rape." [73] When
the special complex crime of robbery with homicide is accompanied
by another offense like rape or intentional mutilation, such
additional offense is treated as an aggravating circumstance which
would result in the imposition of the maximum penalty of death.
[74]
In the case of People vs. Lascuna,[75] we said: Esmso
We agree with the Solicitor General's observation
that the crime committed was erroneously
designated as robbery with homicide, rape and
physical injuries. The proper designation is
robbery with homicide aggravated by rape. When
rape and homicide co-exist in the commission of
robbery, it is the first paragraph of Article 294 of
the Revised Penal Code which applies, the rape to
be considered as an aggravating circumstance.
xxx[76]
We now come to the merits of the case. Msesm
The core issue the instant case is whether the circumstantial
evidence on record forms an unbroken chain which leads to the
conclusion that accused-appellant committed the crime for which
he is being made accountable for, to the exclusion of all others.
Circumstantial evidence is defined as that which indirectly proves a
fact in issue.[77] Under Section 4 of Rule 133 of the Revised Rules on
Evidence, circumstantial evidence is sufficient to convict an
accused if the following requisites concur: (a) there is more than
one circumstance; (b) the facts from which the inferences are
derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond
reasonable doubt.
The peculiarity of circumstantial evidence is that the guilt of the
accused cannot be deduced from scrutinizing just one particular
piece of evidence. It is more like a puzzle which, when put together,
reveals a convincing picture pointing towards the conclusion that
the accused is the author of the crime. Exsm
In the case at bar, the circumstantial evidence presented by the
prosecution clearly establishes the guilt of accused-appellant and
overpowers his defense of denial and alibi. Aside from the fact that
denial and alibi are inherently weak defenses, accused-appellant's
alibi of being in his house at 5:30 in the morning does not preclude
his physical presence in the house of the victim considering that
their respective residences are only 380 meters apart. Moreover,
the proven circumstances in the instant case, when viewed in their
entirety, are as convincing as direct evidence and, as such, negate
the innocence of accused-appellant, to wit: (1) accused-appellant
was present at the scene of the crime; (2) he had blood stains on
his body and clothes, had a bolo tucked in his waist and was
carrying a plastic bag when he was seen leaving the scene of the
crime; (3) he left Brgy. Sta. Cruz for Butuan City on the same day
when the victim was killed; (4) he admitted to Mario Vinculado that
he kill the victim; (5) he did not even bother to inform Roberto
Lasquite of his alleged innocence despite having learned that he
was being made accountable for the death of Bonifacia Lasquite;
(6) he could not think of any reason as to why Benjamin Milano, his
nephew, would lie in testifying against him; and (7) he escaped
from incarceration during the pendency of this case before the
lower court. Clearly, the foregoing evidence is consistent with the
culpability of the accused and inconsistent with his defense of
denial and alibi. Not the least worthy of notice is the fact that
accused-appellant twice sought to escape liability: first, on the day
that the victim was killed and second, while he was incarcerated in
prison. As has often been repeated, flight is a strong indication of
guilt.[78] The reasons put forward by accused-appellant to justify the
two instances when he fled, i.e., first, to look for his live-in partner's
long lost father and second, because he was denied conjugal visits,
are simply too lame and whimsical to merit credibility. Moreover, if
the purpose of his trip to Butuan City was to look for his live-in
partner's father, why did he not return immediately to Brgy. Sta.
Cruz after he and his live-in partner failed to locate the
whereabouts of the said father? The only logical reason would be
that he was avoiding something in Brgy. Sta. Cruz. However,
despite his efforts to escape from the long arm of the law, it still
caught up with him in Butuan City. Kyle
In the appreciation of evidence in criminal cases, it is a basic tenet
that the prosecution has the burden of proof in establishing the
guilt of the accused for all the offenses he is charged with - ei
incumbit probatio non qui negat.[79] The conviction of accused-
appellant must rest not on the weakness of his defense but on the
strength of the prosecution's evidence. In the present case, it is the
opinion of the Court that although the prosecution has sufficiently
established accused-appellant's guilt for the crime of robbery with
homicide, it has, however, failed to substantiate the alleged
aggravating circumstances of rape and intentional mutilation. As
testified upon by the prosecution's expert witness, Dr. Abiera, it
cannot be conclusively stated that the victim was raped. Due to the
fact that the entirety of the evidence presented in this case are all
circumstantial, the fact that the victim was no longer wearing her
underwear when her cadaver was discovered and that the victim
had hematoma formations on both sides of vaginal canal and near
the urethral opening cannot conclusively prove that she was raped.
Moreover, the aggravating circumstance of intentional mutilation
cannot also be appreciated since, as also testified upon by Dr.
Abiera, no vital body part was severed. Likewise, the fact that the
victim's tongue was half-bitten does not prove intentional
mutilation since it could have been caused by the victim herself
when she was fighting to breathe for air while she was being
strangled by accused-appellant. Kycalr
However, despite our finding that accused-appellant cannot be
made liable for the aggravating circumstances of rape and
intentional mutilation, a finding which would have lowered the
penalty in the instant case to reclusion perpetua, accused-appellant
will still have to suffer the supreme penalty of death due to the
attendance of the aggravating circumstance of dwelling [80] which
was alleged in the information and duly proven during the trial.
Dwelling is considered aggravating primarily because of the
sanctity of privacy that the law accords to the human abode.
[81]
In People vs. Cabato,[82] we ruled that: "Dwelling is aggravating
in robbery with violence or intimidation because this class of
robbery can be committed without the necessity of trespassing the
sanctity of the offended party's house."[83]
The penalty for robbery with homicide is reclusion perpetua to
death which is composed of two (2) indivisible penalties. Applying
Article 63 of the Revised Penal Code, the imposable penalty in the
present case is death due to the presence of the aggravating
circumstance of dwelling and the absence of any mitigating
circumstance.
Although four Justices continue to maintain that Republic Act No.
7659, insofar as it imposes the death penalty, is unconstitutional,
they nevertheless submit to the ruling of the majority that the law
is constitutional and that the death penalty should accordingly be
imposed. Calrky
IN VIEW OF THE FOREGOING, the Court finds the accused Locsin
Fabon, alias "Loklok," guilty beyond reasonable doubt of the crime
6
of "robbery with homicide" under Article 294 (1) of the Revised
Penal Code, as amended by Republic Act No. 7659,[84] with the
aggravating circumstance of dwelling, and hereby sentences the
said accused to suffer the supreme penalty of death, to indemnify
the heirs of Bonifacia Lasquite in the amount of Fifty Thousand
Pesos (P50,000.00) and to pay Twenty Five Thousand Pesos
(P25,000.00) as actual damages for the stolen money.
In accordance with Section 25 of Republic Act No. 7659, amending
Article 83 of the Revised Penal Code, upon finality of this decision,
let copies of the records of this case be forthwith forwarded to the
Office of the President of the Philippines for possible exercise of
clemency or pardoning power. Mesm
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Buena, J., on leave.
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
7
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 A: It was bright at the centro.
substance which, if considered, may affect the result of the case, or
in instances where the evidence fails to support or substantiate the Q: But it was not in park (sic) he was sleeping at that time in his
lower courts findings and conclusions, or where the disputed tricycle. Is it not? (sic)
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
A: It was bright because there were lights.
us to modify the factual findings of the lower court.

Q: But you saw him only once on Jan. 8, 1996. How were you
Even then, the appellant raises two points in support of his
able to recognize him in the Municipal building when you
assignment of error designed to sow in our minds seeds of
were asked to identify him after one month, being
doubt. The first relates to the medical evidence on record while the
detained?
second deals with his identity.

A: As I have said, I can never forget his face.[13]

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]
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.

The appellant next assails the identification made by

Q: Now, while you were in the Hospital you said that an ID was
Desiree. He contends that it was still dark at the time of the
shown to you and the picture of a person and whose
incident. He argues that when people board a tricycle, they do not
picture you recognize to be that of a person who raped
usually focus their attention on the driver. He states that the
you. Who showed you that picture?
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. A: The Police Officer.

We are not persuaded. Desiree could not have failed to Q: How come that the Policeman was able to go to Albay
recognize the appellant because she was the victim of the Provincial Hospital with that ID?
assault. A truism founded on ordinary experience is that victims of
criminal violence often strive hard to recognize their assailants. A: Because when they interviewed me in the hospital, I gave
[10]
Furthermore, a victim has a natural knack in remembering the them the description of the accused and his tricycle. [15]
face of an assailant for she, more than anybody else, would be
interested in bringing the malefactor to justice. [11] On the other
The point is made more explicit during Desirees cross-examination:
hand, it would be unnatural for someone who is interested in
vindicating the crime to accuse somebody other than the real
culprit.[12] Atty. Gomez (continuing on cross-examination)

To be sure, Desiree was very emphatic in her identification of Q: Now, on that date Jan. 9, 1996 were you told by the
the appellant as her assailant, thus: policemen that the person whose ID was shown to you was
one of their suspects?

Court: Now that person Herson Naag, how is he related to the

accused in this case? A: The policeman told me to identify the person in the ID.

Desiree: He is the one and same person who raped and robbed Q: Were you told that the owner of the ID was apprehended for
me. violation of traffic law?

Q: You said it was the first time you saw the accused on January A: No, Sir. I was just asked to identify him.
8, 1996. It was still dark is (sic) it not?

8
 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.
9
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 accused-appellant Herson Naag y Lobas is found
GUILTY beyond reasonable doubt of the crime of RAPE under Article
335 (1) of the Revised Penal Code as amended, and he is hereby
sentenced to suffer the penalty of imprisonment of reclusion
perpetua with all the accessory penalties thereto appertaining, to
pay Desiree Gollena P50,000.00 as indemnity and P50,000.00 as
moral damages.
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 correccional as 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.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ADRIANO SEGUIS a.k.a. JUNIOR, ROSALITO
ESTEBE a.k.a. DODONG, RODRIGO DOQUILA a.k.a.
LOLONG (At Large), ELMER CANICO (At Large),
LOLOY GIBERTAS (At Large), BERFEL DELA CRUZ (At
Large), and JOHN DOE (At Large), accused.
ADRIANO SEGUIS and ROSALITO ESTEBE, accused-
appellants.
DECISION
PUNO, J.:
 Juliet A. Magamayo, a nineteen-year-old barrio lass from an
obscure town in Surigao del Norte complains that she has been
ravished, then robbed by seven men, who, following her accounts,
were definitely no Romeos. She claims they did not only forcibly
take her gold ring, they stole her innocence as well. She claims
they did not only dispossess her of a gold bracelet, they also
divested her of her sense of security. She claims they did not only
deprive her of her last remaining fifty pesos, they denied her
furthermore a future.
Juliet pointed to the following men as the ones who committed
the outrage against her womanhood: Adriano Seguis a.k.a. Junior,
Rosalito Estebe a.k.a. Dodong, Rodrigo Doquila a.k.a. Lolong, Elmer
Canico, Loloy Gibertas, Berfel dela Cruz, and a certain John Doe.
They were charged with the crime of robbery with multiple rape
and were indicted in an Amended Information which reads:
That on or about August 19, 1995, in Barangay Togbongon, City of
Surigao, Philippines and within the jurisdiction of this Honorable
Court, the above named accused, conspiring, confederating
together and with mutual understanding with one another, with
lewd designs and by means of force and intimidations (sic), did
then and there willfully, unlawfully and feloniously have carnal
knowledge of Juliet A. Magamayo, while the latter was already
sleeping, by taking turns in raping her against her will and without
her consent and on same occasion, accused with intent to gain and
by means of violence and intimidation, took, stole and carried away
the following personal belongings of Juliet A. Magamayo, to wit:
1. Gold bracelet ----------------------------- P 500.00
2. Gold ring ----------------------------- 4,000.00
3. Cash money ------------------------------ 50.00
T O T A L P 4,550.00
in the total amount of FOUR THOUSAND FIVE HUNDRED FIFTY
(P4,550.00) PESOS, Philippine currency, to the damage and
prejudice of said Juliet A. Magamayo in the aforesaid amount of
P4,550.00 and such other damages as may be allowed by law.
Contrary to law.
Surigao City, Philippines, August 21, 1995.[1]
Of the seven accused, the record reveals that five of them
remain at large. Only the first two were placed under the custody of
the authorities: Seguis and Estebe, and they are the appellants in
this case.During arraignment, both entered a plea of NOT
GUILTY. Trial then proceeded.
The prosecutions version of the story is based mainly on the
private complainants recollection of what happened that dreadful
night. The offended party is one Juliet A. Magamayo, a nineteen-
year old unmarried girl residing at San Jose, Mainit, Surigao del
Norte. According to her, in the afternoon of August 18, 1995 at
about 3 o clock, she went to Barangay Togbongon, Surigao City, a
few kilometers away from the city proper. Her purpose was to
collect a loan of fifty pesos from Michael Balantucas, a friend of
long standing whom she met when she was still staying with her
elder sister in Togbongon. She arrived there after approximately
one hour of travel. As customary with friends, they exchanged
pleasantries and stories, and basically caught up with old times. A
while later, accused Loloy Gibertas and Elmer Canico who were on
their way to fetch water passed by the house. Michael introduced
them to Juliet. They shook hands and talked a little before the two
10
eventually left. Michael then invited Juliet to stay in their home for
the night because darkness was closing in. Michael was living with
his younger brother Rolando and younger sister Lilibeth since their
parents already died. Juliet agreed as she has slept in the place
before. She thought that it was too late and perilous to go back
home.
Little did Juliet know that, in a cruel twist of fate, danger
would visit her in the very refuge where she sought safety.
Following a dinner of cooked bananas plus a few more stories, she
and the Balantucas siblings prepared to retire. Juliet and Lilibeth
slept in the houses only bedroom, which was lighted by a kerosene
lamp. Michael was just outside the rooms doorway while Rolando
stayed in the sala. At about midnight, Juliet was awakened by the
noise brought about by the commotion of five men who entered the
house. She got up and saw Rodrigo Doquila pointing a knife at the
throat of a crouching Michael. She noticed that Lilibeth was not
beside her anymore as it turned out that the young girl went to the
kitchen to relieve herself. Afraid, she shouted for help to Michael
who understandably could not do anything being himself mentally
preoccupied with, in a manner of speaking, saving his own neck.
At this juncture, Elmer Canico grabbed the hair of Juliet and
commanded her to lie down on the floor. Loloy Gibertas held her
right hand even as someone else was holding her left. She
struggled and twisted her body, so another man had to restrain her
legs. Elmer Canico removed his pants and brief, and knelt in front
of her. He stripped Juliet of her pants and underwear before
continuing to place himself on top of the woman. He inserted his
penis into her vagina then made a push and pull
movement. Feeling pain, she fought to free herself. She kicked her
legs but Canico did not seem to mind a bit. After satisfying his lust,
he stood up and put on his pants. He replaced Lolong Doquila in
guarding Michael with a knife.
The next time, it was Doquila who introduced his penis into
the ladys private part. Perhaps realizing the futility of her struggle,
Juliet tried to appeal to their sense of mercy. She begged him to
stop, mainly because of the pain. This also proved fruitless. He
made the same push and pull movements stopping only afterwards
when he was able to satisfy his lust. Doquila was replaced by Loloy
Gibertas who had coital intercourse with the hapless victim. Again
she resisted and shouted for help. The men around her told her to
remain silent if she does not want to get killed. Shortly, Gibertas
stood up and informed Berfel dela Cruz that it was his turn. Like the
others before him, and like the others soon to follow, he forced
himself on Juliet. When he had his fill, the unidentified man also had
sexual contact with her.
Almost after the five predators finished ravaging their prey,
Adriano Seguis and Rosalito Estebe came into the room. Juliet
already knew them even before this incident. She recognized the
two that night by means of a flashlight which Estebe brought to
illuminate the area. Earlier, the small kerosene lamp had been
extinguished by the five men. As expected, Estebe laid himself on
top of the girl, who fought weakly against her new tormentor. He
rammed his penis into her vagina. He got up on his feet only after
some minutes of sexual activity. Then Elmer Canico returned to the
bedroom and Juliet heard him announce that it was his turn again.
For the second time that early morning, he succeeded in copulating
with her. The last one to have carnal knowledge of Juliet against her
will was Adriano Seguis. The latter inserted his male organ into her
private part and performed the same push and pull maneuverings
using his buttocks. The victim begged him to stop for she could not
bear it anymore. Seguis told her to keep quiet.
When Seguis was done, he rose to his feet and went to the
kitchen. He came back with a plate of rice which he gave to the
sobbing lady. Juliet pretended to eat the rice only so that she would
not be raped anymore. She did not utter a word but cried a river of
tears over her heartbreaking experience. She requested Seguis to
help her up and she sat down in a corner. Rosalito Estebe was
seated on a nearby trunk.When Seguis tried to blame her for what
took place, she answered that the five men sexually abused
her. Michael appeared and Juliet asked him how it happened.
Michael replied that he also did not know because they were all
asleep when the incident started. Seguis and Estebe warned them
not to tell anybody of what transpired otherwise they might all be
killed. It was about one oclock in the morning when the two
remaining accused left.
Juliet discovered later on that she had been despoiled of her
gold ring worth P4,000.00 and her gold bracelet worth P500.00.
Furthermore, her cash money amounting to P50.00 was no longer
in her pants pocket. She admitted though that she was not aware
who among the accused carried away the aforementioned personal
belongings while she was being assaulted by them.
The prosecution presented two other witnesses who
corroborated Juliets testimony. Michael Balantucas confirmed that
the seven accused indeed illegally entered their house and took
turns in sexually defiling Juliet. The rapes were committed right
before his eyes. He observed how one by one each of them was
able to impose his own bestial will against the lady. He very much
wanted to help his visitor whom he only invited that night. But as
much as he wanted to, he could not do anything, since all the while
that the rape was going on, somebody was pointing a knife at his
throat. He was practically rendered impotent by the threat that
something bad might happen to him or his siblings.
For her part, Lilibeth Balantucas recounted, among other
things, that she woke up at around midnight to answer a call of
nature. She went to the kitchen to urinate when five men suddenly
entered the bedroom. She identified them to be the accused Elmer
Canico, Lolong Doquila, Loloy Gibertas and Berfel dela
Cruz. However, she did not know the fifth person. Tagging along
were Adriano Seguis and Rosalito Estebe who pulled and dragged
her out of the house. She was able to recognize them because of
the light coming from an electric bulb located in the
kitchen. Outside, Seguis and Estebe ordered her to keep quiet, or
else they would kill her. Out of extreme fear, she did not make any
sound. After about one hour, they also went inside the room.
Lilibeth remained where she was as they told her not to move.
Going back to Juliets testimony, it appears that later in the
morning of August 19, 1995, someone fetched Francisco Pecante, a
member of the local CVO, who initially investigated the incident.
Then he sought Perfecto Pagas, the barangay captain of
Togbongon. Together, they brought the victim to the Surigao
Provincial Hospital where she was physically examined and
medically treated.
The attending physician, Dr. Panfilo Jorge Tremedal III, testified
that on August 19, 1995, he was a resident doctor of the hospital.
He checked up the person of Juliet Magamayo who complained that
she has been raped. Among his findings was an abrasion of the
labia majora. In his expert opinion, the injury could have probably
been caused by a blunt object like an erect human penis. Another
member of the medical staff was also presented by the
prosecution: Elsa Adlawan who was employed as a medical
technologist by the hospital. She declared that on the same date,
she received a vaginal specimen taken from Juliet for a laboratory
evaluation for the presence of spermatozoa. After conducting the
required tests, she determined the said specimen to be positive for
spermatozoa.
11
With the prosecution resting its case, the defense made its
counter-presentation of the facts. It first offered Nilda Cabug-os,
who, per her own declaration, is a friend of the victim but not
related to her. She recalled that Juliet arrived at her house in
Togbongon at about four oclock in the afternoon of August 18,
1995, purportedly to collect a sum of money Michael Balantucas
owed her. They have only conversed for a brief moment when Juliet
went her way, returning after about two hours in the company of a
male escort, one Jeffrey Lerio. Later, Juliet would again leave the
house with Jeffrey for an undisclosed destination. By the time the
clock struck eight, Juliet came back to the house. As a matter of
hospitality, Nilda extended an invitation to her guest to spend the
night in their abode, which invitation Juliet readily accepted. The
latter was already sleeping when some young men came to drop
by. She rose to entertain her visitors. More than that, she went out
with them. And although she asked Nildas permission, she did not
say where they were going. It was the last time she saw her that
night.
The next morning greeted Nilda with a neighbors story that
Juliet allowed herself to have sexual intercourse with several men in
the house of Michael Balantucas. She replied that she and her
husband cautioned her about going out so late in the night but
Juliets persistence made them yield. She remembered that Juliet
was wearing maong pants and a blouse on the day of the incident.
She also wore a cheap wristwatch worth about P35.00, a small belt
worth approximately P30.00, a headband and shoes made of cloth.
She did not notice any fancy jewelry.
Another witness, Perfecto Pagas, gave evidence that he is a
barangay kagawad of Togbongon for three years, although a
tricycle driver by vocation. He came to know of Juliet not only
because she is a frequent passenger but allegedly due to her
reputation in the locality of associating herself with different
men. According to Pagas, sometime in March 1995, Juliet
complained to him in the office of the barangay council that she
was raped by five men. She did not identify any names. The
complaint was not pursued as he heard later on that she has been
paid. He admitted too that he failed to enter the complaint in the
official records on the excuse that Juliet anyway did not return
anymore.
In his defense, the accused Adriano Seguis testified that on
March 9, 1995, Juliet approached him and made a request for him
to bear witness in a rape case she was about to file. It was not clear
whether this is the same incident of the alleged rape that she
complained to Kagawad Pagas. He claimed that it was the first time
that they met, although they became acquaintances after. At any
rate this is not the reason why he refused her. He simply had no
knowledge of the incident.
Seguis must have felt history repeating itself right before his
very eyes. On the morning of August 19, 1995, at 6 a.m., he arrived
at the residence of Michael Balantucas. He went there together with
his co-accused Rosalito Estebe pursuant to a prior agreement that
they would help Michael in harvesting his crop of palay. In the
uncanniest of coincidences, Juliet, who was already there when he
arrived, again was apparently involved in another case of rape
which happened the previous night, and once more asked him to
testify for her. This time the request was coupled with a threat that
she would implicate him in the legal action if he refused to
cooperate. For the second time in as many instance, he rejected
her plea. For scorning her twice, he incurred her fury. She made
good her threat and implicated him.
In an unexpected turn of events, the defense called to the
witness stand Michael Balantucas who previously testified for the
prosecution. He was this time singing a different tune. He claimed
that his conscience was bothering him, and he could not suffer the
burden of seeing two innocent men go to jail. That is why he
elected to testify even though he was aware that he was courting
criminal prosecution in changing his testimony. Michael recanted
his former testimony by declaring that in the evening of August 18,
1995, he was staying at his house with Juliet and his siblings,
Rolando and Lilibeth, when at around ten oclock, five men
arrived. These five were the accused Lolong Doquila, Elmer Canico,
Loloy Gibertas, Berfel dela Cruz, and a certain Rolando Ezperanza.
They had a talk with Juliet wherein it was agreed that they would
rent[2] her (i.e., have sex with her) that night for a fee of one
thousand pesos. While the lady supposedly kept her part of the
bargain, the men did not. Instead they even had the audacity to
take her bracelet and wristwatch when they left at about two oclock
dawn. Juliet was enraged. She wanted to bring her customers [3] to
court not to collect the bill but to charge them with rape. When
Seguis and Estebe arrived the next day, she asked the three of
them (including Michael) to testify in her behalf, otherwise she
would implicate them. As far as Michael knows, he was the only one
who acceded to the ladys demand.
Rosalito Estebe basically towed the same story line as the two
other witnesses. He testified that he knows Juliet as she often
comes to Togbongon where he lives. One time, on March 1995, he
saw her engage in sexual intercourse with multiple partners in their
barrio. He himself did not take part in the orgy. Later, she asked
him to be her witness as she intended to file rape charges against
the persons who had sex with her. He refused as he heard that she
has been paid the sum of P1,000.00. Subsequently on May 14,
1995, which was the fiesta in Togbongon, Juliet again requested him
to be a witness in the complaint for rape she has filed against Ricky
Antallan, Michael Balantucas, Jeffrey Lerio, Lolong Doquila, Elmer
Canico and Berfel dela Cruz. When he rejected her, she implicated
him in the present case.
In rebuttal, Juliet denied that she agreed to have sex with
anyone for P1,000.00. She reiterated her stand that she was
abused by all seven men. Furthermore, it is not true that she
merely implicated Seguis and Estebe after the two declined to be
her witnesses. Both also had sex with her.
After trial, the lower court pronounced the following sentence:
[4]
WHEREFORE, premises considered, the Court finds each of the
accused, Adriano Seguis or Adriano Seguis Jr. and Rosalito Estebe,
guilty beyond reasonable doubt as a principal (sic) of the crime of
simple rape under Article 335 of the Revised Penal Code, and
hereby sentences each of them to suffer the penalty of reclusion
perpetua; and to pay one-half of the costs.
Each of the said accused is ordered to indemnify the victim, Juliet
Magamayo, in the amount of P50,000.00 for the rape committed by
him.[5]
Hence, the present appeal. In their brief, appellants raised the
lone assigned error, to wit:
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS
GUILTY THOUGH NOT OF THE CRIME CHARGED BUT ONLY OF
SIMPLE RAPE WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND
REASONABLE DOUBT.
It is to be noted that the accused in this case were originally
indicted for the felony of robbery with multiple rape, a special
complex crime punishable under Art. 294, par. 1 of the Revised
Penal Code and which is committed when the robbery shall have
been accompanied by rape. The said provision, needless to say,
covers cases of multiple rapes.[6] This is primarily due to the fact
12
that the juridical concept of this crime does not limit the
consummation of rape against one single victim or to one single
act, making other rapes in excess of that number as separate,
independent offense or offenses. All the rapes are merged in the
composite, integrated whole that is robbery with rape, so long as
the rapes accompanied the robbery. It does not matter too whether
the rape occurred before, during, or after the robbery.
Still and all, this does not change the nature of the felony. It is
essentially a crime against property. The following are its elements:
(1) the taking of personal property is committed with violence or
intimidation against persons; (2) the property taken belongs to
another; (3) the taking is done with animo lucrandi; and, (4) the
robbery is accompanied by rape. To sustain a conviction, it is
imperative that the robbery itself must be conclusively established;
just as the fact that it was the accused who committed it be proved
beyond reasonable doubt. The prosecution must be able to
demonstrate the level of their participation with legal and moral
certainty, including the existence of a conspiracy, if any. Otherwise,
those who were charged should be acquitted, at least for the
robbery. Proof of the rape alone is not sufficient to support a
conviction for the crime of robbery with rape.
This is exactly the factual conclusion of the trial court, whose
findings, to reiterate, are accorded great weight and respect as trial
judges are undeniably in the best position to weigh the declaration
of witnesses in light of their opportunity to observe physically the
witnesses conduct and attitude during trial. [7] Thus said the court:
x x x However there is no sufficient evidence pointing to the herein
two accused as the ones who divested the victim of her money and
valuables. The complainant herself admitted that she did not know
who among the many accused took her gold ring, bracelet and
cash. All that she became aware of after her horrible experience
was she no longer had the aforementioned items.
x x x There is a complete lack of evidence pointing to Adriano
Seguis or Rosalito Estebe as the ones who took the valuables in
question. In the absence of proof of conspiracy among the accused
to commit the crime of robbery, they are liable only for their own
separate and individual acts.
But the lower courts finding of their non-participation in the
robbery does not mean that they are totally guiltless. They will still
be held accountable for whatever unlawful acts they may have
committed, and for which acts they were charged. In a criminal
action for robbery with rape, where the prosecution failed to prove
the robo or the participation of the accused in it, the latter may still
be convicted for the rape. As already mentioned, the trial court has
ruled that the appellants had carnal knowledge of the private
complainant by using force and intimidation. It convicted them
of one count of rape each because there was no showing that
they conspired or assisted each other in committing those rapes.
We affirm the conviction.
This Court has steadfastly adhered to the rule that when a
woman testifies that she has been raped, and if her testimony
meets the test of credibility, the accused may be convicted on the
basis thereof.[8] A rape victim who testifies in a categorical,
straightforward, spontaneous and frank manner, and remains
consistent, is a credible witness.[9] If her story had only been
contrived, she would not have been so composed and consistent
throughout her entire testimony in the face of intense and lengthy
interrogation.[10] In the case at bar, the victim gave a direct and
straight narration of the events which only evinces the truthfulness
of her testimony. Her story is corroborated on its material points by
an impartial and unbiased witness, Lilibeth Balantucas, who has
absolutely no personal interest in the outcome of this suit.Also, the Q : By the way, do you know personally Rosalito Estebe?
medical evidence is consistent with the theory that the complainant
had been a victim of rape. A : Yes, sir.

In addition, Juliets credibility is bolstered by her instantaneous Q : For how long have you known him prior to the incident?
report of the crime to the police. The incident occurred in the early
morning of August 19, 1995, and the very next day, or on August
A : A long time, sir.
20, 1995, she executed her affidavit before the authorities of the
Surigao City Police.
Q : In Barangay Togbongon?
Besides, the appellants failed to prove any ulterior or
improper motive which could have induced the victim and her A : Yes, sir.
witness to testify against or falsely implicate them in the
commission of the crime.[11]Indeed, if an accused had really nothing Q : You knew him because you have stayed in Togbongon,
to do with the crime, it is against the natural order of events and Surigao City?
human nature and against the presumption of good faith that the
prosecution witness would falsely testify against the former.
[12] A : Yes, sir. It was Jolly who introduced (sic) to me.
Thus, we adhere to the established rule that in the absence of
any evidence to show that the witnesses for the prosecution were
actuated by any improper motive, their identification of the Q : How were you able to recognize that it was Rosalito Estebe
accused-appellants should be given full faith and credit. [13] and Adriano Seguis who entered the
room?

Appellants defense that they were merely implicated by Juliet

as they refused to testify in her favor is far from convincing. Both of A : Because Rosalito and Adriano called for Michael Tol.
them testified that they are not even close friends of Juliet. As
correctly pointed out by the Solicitor-General, It is quite contrary to Q : My question, how were you able to recognize Rosalito Estebe
human experience that a woman would narrate to somebody how and Adriano Seguis.
she was used sexually for a fee (and was not paid) and thereafter
request said person whom she hardly knew to testify in her favor to
A : Estebe was bringing (sic) a flashlight.
support her complaint.[14] Also, such motive if availing is
attributable only to Juliet. The same cannot be imputed to the other
vital witness Lilibeth, who, to repeat, does not have any interest in Q : How about Adriano Seguis?
this case and yet explicitly declared that appellants were among
the seven men who went to their house the night of August 18, A : He was there sitting near the head of Michael.
1995.
Q : Was the room still lighted at that time.
In support of their lone assignment of error, the accused
advanced several arguments designed to destroy the credibility of A : No more, sir, only the flashlight.
the witness herself and then her testimony. We are not impressed
by these arguments.
Q : Did you see the face of Rosalito Estebe?

I
A : Yes, sir.

Appellants basic submission is a mere restatement of their

Q : How were you able to see the faces of Adriano Seguis and
defense. They assert that they were not present at the scene of the
Rosalito Estebe?
crime during the supposed moment that it was unfolding. On the
contrary, they arrived there only at six oclock the following morning
allegedly to help Michael Balantucas harvest his palay. A : The light from the flashlight was moving around.

Such submission must fail for obvious reasons. We have ruled
that the defense of alibi is inherently weak and crumbles in the
light of positive declarations of truthful witnesses who testified on
affirmative matters that the accused-appellants were at the scene
of the incident and were the victims assailants and perpetrators of
the crime.[15] In the present case, the appellants were positively
identified by the victim, thus:
Prosec. Menor : After that person was finished, what happened
next?
Juliet : Then Adriano Seguis and Rosalito Estebe went up the
house.
Q : Did they enter the room?
A : Yes, sir. Rosalito entered the room first.
Q : Are you very sure that the two persons who came late were
Adriano Seguis and Rosalito Estebe?
A : Yes, sir.[16]
In addition, there is the testimony of Lilibeth Balantucas, pointing to
the two appellants as among those who entered their house at
around midnight. Her testimonial narrative proved that Seguis and
Estebe were in the Balantucas residence at precisely or about the
same time Juliet was being raped. It forthrightly contradicted the
assertions of the two that they arrived there only about six oclock
in the morning of the next day. According to her:
xxx
Prosec. Menor: You said you slept at about 12:00 (sic) oclock in
the evening, what time did you awake up?

13
 Lilibeth: At 12:00 because I want to urinate. rejection of the defense of alibi is inconsistent with the evidence on
record.[18]
Q : Where did you go after you wake (sic) up?
Lastly, it puzzles this court why the appellants, despite their
A : To the kitchen. plea of alibi, never testified as to their whereabouts the night of
August 18, 1995. Neither did they present any witness who can
plausibly confirm that they were indeed in another place at that
Q : When you reached the kitchen of your house, what
period. For the defense of alibi to be appreciated, it is not enough
happened next?
to prove that the accused was somewhere else when the offense
was committed. It must likewise be shown that he was so far away
A : Then some men entered our room. that it was not possible for him to be physically present at the place
of the crime or its immediate vicinity at the time of its commission.
Q : How many were they? The rule is settled that for the defense of alibi to prosper, the
requirement of time and place must be strictly met. [19]

A : Five persons.
II

Q : How about you?

Appellants contend that private complainant is not credible as
she is known in the locality as a scheming 19-year old woman, of
A : I was outside because I was afraid and I was pulled.
loose morals, engaged in the oldest trade, and wise in her ways
with the world.[20] Consequently, it is a misplaced gesture of
Q : By whom? sympathy and compassion to consider her truthful and a paragon of
a Filipinas inbred modesty and Christian virtues. The record,
A : Dodong Estebe, Adriano Seguis. however, is bereft of any evidence that Juliet is a woman for hire,
except for the statements of witnesses Nilda Cabug-os, Perfecto
Pagas, and appellant Rosalito Estebe to the effect that she is often
Q : Including Estebe and Seguis, how many persons were there
seen in the company of men. These recitals by themselves cannot
in the house, all in all?
be made sufficient basis for accepting the veracity of the
allegation. Greater amount of quantitative and qualitative proof is
A : Seven persons. needed.

Q : What did Seguis and Estebe do to you?
A : Seguis and Estebe held my hands and told me to keep quite
or they would kill me.
xxx
Q : Considering that it was nighttime, how were you able to
recognize them when they were able to drag you outside?
Moreover, it is unlikely that even a prostitute would agree to
have sex continuously with five to seven men for one night for a fee
of P1,000.00. And it is even more unlikely that she would go to the
extent of filing a case against them, two of whom are
acquaintances, have her parts physically examined, and testify in
court how she was ravaged by them just to get even for their
failure to pay. Obviously, the reason why Juliet went to court and
opted to suffer the ordeal of being interrogated on her harrowing
experience is to obtain justice.

III
A : Because there was a light.

Appellants next call our attention on the so-called badges or

Q : Light from what? telltale signs of a perfected contract for sexual services between
Juliet and the accused. The appellants would like to impress upon
A : From electric bulb. this Court that an agreement would lend credence to their theory
that she allowed herself to be used that night by five men who in
Q : And where was that electric bulb located or placed? turn reneged on their word of paying her. As a consequence of
which, she was left with no choice but to file this action and include
the appellants as well for refusing her request to be her witnesses.
A : Outside.
In the alternative, the agreement should demonstrate that if there
was any sexual activity participated in by the woman and the
Q : Are you referring to the post? appellants, it was at least consensual.

A : No, sir, it was came from our kitchen.
Q : Kitchen of your house?
A : Yes, sir.[17]
Moreover, the defense of alibi is an issue of fact that hinges
on credibility, the relative weight of which the trial court assigns to
the testimony of the witnesses. Such assessment, unless patently
and clearly inconsistent, must be accepted, for verily a careful
evaluation of the record does not reveal that the trial courts
First. They argue that if it were true that Juliet was raped no
less than eight times and by seven different men, she should have
sustained more injuries than mere superficial linear abrasion on the
labia majora. This should manifest that every intercourse was done,
not with force and intimidation, but with care and finesse. Suffice it
to say that the absence of external signs of physical injuries does
not negate rape.[21] This is especially true if we take into
consideration that two men held Juliets hands while she was being
raped in succession. Be that as it may, whatever wounds she might
have suffered is consistent with the hypothesis that she was raped.
As opined by Dr. Tremedal, an acknowledged expert witness, her
scars, by their very nature, must have been caused by a blunt

14
object hitting the vagina with force, such as an erect male penis
during sexual intercourse.
Second. Appellants ask how come Seguis and Estebe
preferred not to rape Lilibeth Balantucas herself who was already at
their complete control during the time that complainant was
allegedly being gang-raped by the other five accused inside the
room? Why did they wait for the five to finish and leave behind in
the process a fresh, sweeter, and younger[22] Lilibeth? They claim
that this is unnatural for people driven by lust and bestial desire,
unless there was a prior arrangement made by them with the
victim. We are not persuaded. Lust is not a respecter of time, place
and circumstances, nor of persons and relationships, [23] and neither
is it a conformist to reason and good taste, nor common sense
even. When a man is overcome by lustful passions, certainly it
would be too much to expect that he will still concern himself with
the age, scent or appearance of his prospect.
Third. Appellants contend that Juliets act of telling Adriano
Seguis, before she was raped by the latter, that she could not take
it anymore is indicative of the existence of a prior agreement with
the seven accused for a fee of P1,000. Again, the argument lacks
merit. When Juliet told Seguis that she could not take it, she was
not asking for a recess or timeout[24] as they insist, but was actually
pleading that he no longer rape her as she has suffered enough in
the hands of the other accused.
Fourth. They assert that the subsequent act of Seguis and
Estebe in socializing with the victim and the Balantucas siblings
negates any idea of a misdeed. A reality check, however, would
show that the accused stayed for a while after raping Juliet not to
socialize with them, as in fact the two warned them not to tell
anybody of what happened or they would be killed. Although it is
correct that Seguis later showed some signs of remorse towards the
victim, his acts were belated and could no longer erase his
crime. The ambiguous attitude of Seguis is understandable. While
succumbing to his uncontrollable lust, he remained quite
sympathetic to the plight of Juliet, who was an old
acquaintance. Nevertheless, the apparent regret shown by Seguis
after the act of rape could not undo what he had done. It was too
late for recriminations.
IV
On another point, appellants keep harping on the one hundred
eighty-degree turn around made by Michael on the stand. They say
that if the alleged sexual congresses were true, and witnessed by
Michael, it is highly unthinkable that, despite the risk of facing
criminal prosecution for false testimony and perjury, he would still
recant his previous testimony in court in favor of the two. They
stress that Juliet and Michael are more than good friends; and, the
latter by force of circumstance should not hesitate to defend the
complainants position.
The Court fails to be impressed with the recantation of
Michael Balantucas for several reasons. A recantation does not
necessarily cancel an earlier declaration.[25] Like any other
testimony, it is subject to the test of credibility based on the
relevant circumstances and especially the demeanor of the witness
on the stand. Moreover, it should be received with caution as
otherwise it could make solemn trials a mockery and place the
investigation of truth at the mercy of unscrupulous witnesses. [26]
In any event, the eyewitness accounts of Juliet herself and
Lilibeth are more than sufficient to prove beyond doubt the
participation of the appellants in the commission of the assault.
Even if the trial court had not given credence to the first testimony
of Michael, there still is enough indication to ascertain their
15
culpability. His declaration is merely cumulative, or additional
evidence of the same kind tending to establish the same point or
factual issue.
V
Lastly, appellants put private complainant to task for alleged
marked contradictions and pure improbabilities surrounding her
story. For instance, they assert that it would be highly doubtful for
Juliet not to notice who took away her gold ring and gold bracelet, if
in the first place there were any. So too are they puzzled with how
consistent she is in her perception of how long each accused raped
her. To them this is a sure sign that her performance on the stand is
rehearsed.
The submission deserves scant attention. Verily, one cannot
expect a victim of such nerve-racking experience to become aware
of every minute detail of the event, or question her keenness to
observe one aspect of it but not another. It is understandable for
the poor victim not to remember who particularly among the seven
took away her valuables. At that point, her ring and bracelet were
not that important to her. Regarding the time, it could well be the
only thing that concerned her mind. In any event, these
contradictions or improbabilities, as appellants would put it, cannot
erode the credibility of Juliets testimony.
IN VIEW WHEREOF, the Decision of the Regional Trial Court
of Surigao City in Criminal Case No. 4581 is AFFIRMED in toto. Costs
against appellants.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-
Santiago, JJ., concur.
N BANC
[G.R. No. 130508. April 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ARMANDO REGALA y ABRIOL, accused-
appellant.
DECISION
GONZAGA_REYES, J.:
Armando Regala appeals from the judgment in Criminal Case No.
7929 rendered by the Regional Trial Court of Masbate, Masbate,
Branch 46, 5th Judicial Region, convicting him of the crime of
Robbery with Rape.
The information against accused-appellant on November 27, 1995,
filed by 2nd Assistant Provincial Prosecutor Jesus C. Castillo, reads
as follows: Sppedsc
"That on or about September 11, 1995, in the
evening thereof, at Barangay Bangon,
Municipality of Aroroy, Province of Masbate,
Philippines, within the jurisdiction of this Court,
the said accused confederating together and
helping one another, with intent to gain, violence
and intimidation upon persons, did then and
there wilfully, unlawfully and feloniously enter the
kitchen of the house of Consuelo Arevalo and
when inside, hogtied said Consuelo Arevalo and
granddaughter Nerissa Regala (sic), take, steal,
rob and carry away cash amount of P3,000.00
and two (2) gold rings worth P6,000.00, to the
damage and prejudice of owner Consuelo Arevalo
in the total amount of P9,000.00, Philippine
Currency; and in pursuance of the commission of
the crime of robbery against the will and consent
of the granddaughter Nerissa Regala (sic) wilfully,
unlawfully and feloniously accused Armando
Regala y Abriol has for two times sexually abused
and/or intercoursed with her, while hogtied on the
bed and in the kitchen.
CONTRARY TO LAW.[1]
Accused-appellant was apprehended by the police four days after
the incident. He was identified at a police line-up by Nerissa and
her grandmother. Calrsc
The prosecution presented three witnesses: Dra. Conchita Ulanday,
Municipal Health Officer of Aroroy, Masbate, who personally
examined the rape victim; Nerissa Tagala, the rape victim, 17 years
old, a third year high school student; and her grandmother,
Consuelo Arevalo, who was her companion when the robbery with
rape transpired at Consuelos house.
The prosecutions version is stated in Appellees Brief as
follows: Sccalr
"On September 11, 1995, at about 9:00 oclock in
the evening at Barangay Bangon, Aroroy,
Masbate, then 16-year old victim Nerissa Tagala
and her grandmother (Consuelo Arevalo) were
sleeping, when appellant Armando Regala and his
two other companions entered the formers house.
(pp. 6-7, TSN, August 26, 1996).
Appellant and his companions entered the house
through the kitchen by removing the pieces of
wood under the stove. Appellant went to the
room of Nerissa and her grandmother and poked
an 8-inch gun on them, one after the other. (p. 8,
TSN, August 26, 1996)
Nerissa and her grandmother were hogtied by
appellant and his companions. Thereafter,
Nerissa was raped by appellant Armando Regala
in bed while her grandmother was on the floor.
After the rape, appellant and his two companions
counted the money which they took from the
"aparador." (pp. 9-10, TSN, August 26, 1996)
Appellant and his companions then ran away
with P3,000 in cash, 2 pieces of ring valued
at P6,000 and two wrist watches worth P5,000.
(pp. 11-13, TSN, August 26, 1996)
The following day, September 12, 1995, Nerissa
went to the Rural Health Clinic of Aroroy, Masbate
for medical examination. In the Medical Report
presented by Municipal Health Officer Dr.
Conchita S. Ulanday, it was shown that Nerissa
sustained laceration of the hymen at 4:00 oclock
and 7:00 oclock positions (fresh wounds),
indicating a possible sexual assault upon the
victim. (p. 16, TSN, August 26, 1996)[2]
The defense presented accused-appellant who testified that on
September 11, 1995, he was staying in the house of Antonio Ramilo
at barangay Syndicate, Aroroy, Masbate. Ramilo was the manager
in the gold panning business where accused-appellant was
employed. Antonio Ramilo testified and corroborated his defense
and stated that accused-appellant was in his house, which is about
5 kilometers away from Barangay Bangon. Calrspped
The trial court held that the defense of alibi cannot overcome the
positive identification of the accused. The dispositive portion of the
judgment reads:
"WHEREFORE, in view of all the foregoing, the
Court finds accused Armando Regala y Abriol
guilty beyond reasonable doubt of the crime of
Robbery with Rape, as penalized under Par. 2 of
Art. 294 of the Revised Penal Code and hereby
sentences him to suffer imprisonment of reclusion
perpetua; to indemnify the victim Consuelo
Arevalo the sum of P9,000.00, the cash and value
of the looted articles; to indemnify the victim
Nerissa Tagala the sum of P50,000.00 as moral
damages, and the further sum of P25,000.00 as
exemplary damages. No subsidiary imprisonment
in case of insolvency, and to pay the costs."[3]
Armando has appealed to this Court pleading that: Scedp
(1) THE TRIAL COURT GRAVELY ERRED IN FINDING
THAT SUFFICIENT EVIDENCE EXIST TO ESTABLISH
CLEARLY THE IDENTITY OF THE ACCUSED-
APPELLANT AS PERPETRATOR OF THE CRIME
CHARGED.
(2) THE TRIAL COURT GRAVELY ERRED IN FINDING
ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.[4]
which alleged errors were discussed jointly.
In essence, accused-appellant questions the sufficiency of the
prosecutions evidence in identifying him as one of the perpetrators
of the crime charged. He claims that the complaining witness could
not have positively identified him as there was no electricity nor
16
any light in the place of the incident which took place at 9:00
oclock in the evening. Consuelo Arevalo was able to identify
accused-appellant only after he was pinpointed by Nerissa, and
made contradictory statements in court when she stated that
accused-appellant removed his mask after she was hogtied, and
later stated that accused-appellant removed his mask before she
was hogtied. The medico-legal officer, Dr. Ulanday, herself testified
that the complaining witness either voluntarily submitted to a
sexual act or was forced into one. Edpsc
The appellee insists that appellants lame defense of alibi cannot
stand against the positive identification made by the victim, and
avers that the victim, a 16 year old barrio lass at the time the rape
was committed, was motivated by a sincere desire to seek and
obtain justice. The Solicitor General also recommends an additional
award of compensatory damages of P50,000.00 in favor of Nerissa
Tagala. Edp
We affirm the judgment of conviction.
There was sufficient evidence to establish the identity of accused-
appellant as the perpetrator of the crime. Misedp
Nerissa positively recounted the incident on the witness stand. She
was sleeping with her grandmother in the latters house when the
accused-appellant Regala, together with the unidentified
companions entered the house. Regala pointed a gun, about 8
inches long, at her grandmother, and then at her, and hogtied both
of them. Regala took off her panty and her shorts, and removed his
own "porontong" pants, and made sexual intercourse ("itot") with
her while she was hogtied in bed. Her grandmother was at the floor.
She saw the aparador of her grandmother being opened. She could
not shout because the gun was pointed at her, and she was afraid.
Two companions of the accused-appellant entered the room as she
was being raped. Two rings valued at about P6,000.00 and 2 wrist
watches (one "Seiko" and the other "Citizen") and money was taken
by the accused-appellant and his companions. After raping her in
bed, Nerissa saw accused-appellant counting the money taken from
the aparador. Thereafter, she was brought to the kitchen, still
hogtied, and raped again.[5] On cross-examination, Nerissa stated
that although there was no electricity, and the light in the house
was already off, she was able to see the face of Regala because at
the time Regala was counting the money, one of his companions
was holding the flashlight "beamed to the money" and there was
"some reflection" on the face of Regala [6] She remembered the face
of Regala because of an earring on his left ear [7] which he was
wearing when presented at the police line-up.[8]
Consuelo Arevalo testified and corroborated the testimony of her
granddaughter. Armando Regala entered the house with two
companions, hogtied her and Nerissa, and were asking for money.
After having sexual intercourse with Nerissa, Regala took P3,000.00
in paper bills and coins from her aparador, and got a stainless Seiko
wristwatch and two gold rings valued at P6,000.00. She was able to
recognize Regala because of his earring on his left ear, and
because he was pinpointed by Nerissa at the police station. She
was not able to shout at the time because her mouth was gagged
with a piece of cloth by Regala. [9] On cross-examination, Consuelo
Arevalo declared that she was able to see Regala because he used
her flashlight, and he took off the mask he was wearing; she
recognized Regala because of his earring and his flat top hair cut.[10]
The Court gives its approbation to the finding of the trial court that
the evidence was sufficient to clearly establish the identity of
Armando Regala as the person who, with two companions,
committed the crime of robbery accompanied by rape on the night
of September 11, 1995. Nerissa Tagala positively identified
Armando Regala because at the time he was counting the money
on her bed, the other companion of the accused beamed the
flashlight towards the money and there was a reflection on the face
of Regala. Although the three intruders were wearing masks when
they entered the house, they removed their masks later. [11]
Our cases have held that wicklamps, flashlights, even moonlight
and starlight may, in proper situations, be sufficient illumination,
making the attack on the credibility of witnesses solely on this
ground unmeritorious.[12]
We are not persuaded by the contention of accused-appellant that
the contradictory replies of Consuelo Arevalo when asked whether
Regala removed his mask "before" [13] or "after"[14] she and Nerissa
were hogtied exposed the fact that she was not able to identify the
accused-appellant. The contradiction referred to a minor detail and
cannot detract from the fact that both Nerissa and Consuelo
positively identified Regala as there was a flashlight used to focus
at the money while it was being counted and there was a reflection
on the face of Regala. Both Nerissa and Consuelo remembered the
earring on his left ear, which he was still wearing at the time of the
police line-up inside the police station. Misoedp
Dr. Conchita Ulandays testimony does not support the contention of
accused-appellant that Nerissa voluntarily submitted to the sexual
advances of Regala. The admission of Dr. Ulanday that her findings
point to the fact that Nerissa "either voluntarily or was forced into
sexual act" does not prove that Nerissa voluntarily submitted to the
sexual act. Dr. Ulanday testified that there was suggested evidence
of penetration as shown by the two lacerations at 4 oclock and at 7
oclock which were fresh wounds. That the act was involuntary was
clearly established by the fact that Nerissa was hogtied when she
was sexually attacked. As correctly pointed out by appellee, Nerissa
was a 16-year old barrio lass, not exposed to the ways of the world
and was not shown to have any ill-motive to falsely implicate
accused-appellant, who was a stranger. And as repeatedly
pronounced by this Court, it simply would be unnatural for a young
and innocent girl to concoct a story of defloration, allow an
examination of her private parts and thereafter subject herself to a
public trial or ridicule if she was not, in fact, a victim of rape and
deeply motivated by a sincere desire to have the culprit
apprehended and punished.[15]
The crime of robbery with rape was committed in 1995 when RA
7659 was already in force. Article 294 of the Revised Penal Code as
amended now provides, under paragraph 1 thereof:Edpmis
"1. The penalty of reclusion perpetua to death,
when for any reason of or on occasion of the
robbery, the crime of homicide shall have been
committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or
arson."
The victim in the case at bar was raped twice on the occasion of
the robbery. There are cases [16] holding that the additional rapes
committed on the same occasion of robbery will not increase the
penalty. In People vs. Martinez,[17] accused Martinez and two (2)
other unidentified persons, who remained at large, were charged
with the special complex crime of robbery with rape where all three
raped the victim. The Court imposed the penalty of death after
considering two (2) aggravating circumstances,
namely, nocturnidad and use of a deadly weapon. However, the
Court did not consider the two (2) other rapes as aggravating
holding that "(T)he special complex crime of robbery with rape has,
therefore, been committed by the felonious acts of appellant and
his cohorts, with all acts or rape on that occasion being integrated
in one composite crime." Jjsc
There are likewise cases [18] which held that the multiplicity of rapes
committed could be appreciated as an aggravating circumstance.
In People vs. Candelario[19] where three (3) of the four (4) armed
men who robbed the victim "alternately raped her twice for each of
them", this Court, citing People vs. Obtinalia, [20] ruled that "(T)he
characterization of the offense as robbery with rape, however, is
not changed simply because there were several rapes committed.
The multiplicity of rapes should instead be taken into account in
raising the penalty to death." Scjj
It should be noted that there is no law providing that the additional
rape/s or homicide/s should be considered as aggravating
circumstance. The enumeration of aggravating circumstances
under Article 14 of the Revised Penal Code is exclusive as opposed
to the enumeration in Article 13 of the same code regarding
mitigating circumstances where there is a specific paragraph
(paragraph 10) providing for analogous circumstances. Sjcj
It is true that the additional rapes (or killings in the case of multiple
homicide on the occasion of the robbery) would result in an
"anomalous situation" where from the standpoint of the gravity of
the offense, robbery with one rape would be on the same level as
robbery with multiple rapes.[21] However, the remedy lies with the
legislature. A penal law is liberally construed in favor of the
offender[22] and no person should be brought within its terms if he is
not clearly made so by the statute.[23]
In view of the foregoing, the additional rape committed by herein
accused-appellant should not be considered as aggravating. The
penalty of reclusion perpetua imposed by the trial court is
proper. Supreme
As regards the civil indemnity, we find well-taken the
recommendation of the Solicitor General that compensatory
damages should be awarded in the amount of P50,000.00. Nerissa
Tagala is entitled to an award of civil
indemnity ex delicto of P50,000.00, which is given in favor of the
[24]
offended party in rape. Also a conviction for rape carries with it
the award of moral damages to the victim since it is recognized
that the victims injury is concomitant with and necessarily results
from the ordinary crime of rape to warrant per se an award of
P50,000.00 as moral damages.[25]
17
WHEREFORE, the judgment convicting Armando Regala y Abriol
guilty beyond reasonable doubt of the crime of Robbery with Rape,
is hereby AFFIRMED with the MODIFICATION that Nerissa Tagala is
entitled to an additional award of P50,000.00 as civil
indemnity. Court
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
LUIS MARCOS P. LAUREL VS PEOPLE
On February 27, 2006, this Courts First Division rendered judgment
in this case as follows:
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.[1]
By way of brief background, petitioner is one of the
accused in Criminal Case No. 99-2425, filed with
the Regional Trial Court of Makati City, Branch 150. The Amended
Information charged the accused with theft under Article 308 of the
Revised Penal Code, committed as follows:
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, antenae, 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.[2]
Petitioner 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. The trial
court denied the Motion to Quash the Amended Information, as well
petitioners subsequent Motion for Reconsideration.
Petitioners special civil action for certiorari was dismissed
by the Court of Appeals. Thus, petitioner filed the instant petition
for review with this Court.
In the above-quoted Decision, this Court held that the
Amended Information does not contain material allegations
charging petitioner with theft of personal property since
international long distance calls and the business of providing
telecommunication or telephone services are not personal
properties under Article 308 of the Revised Penal Code.
Respondent Philippine Long Distance Telephone Company
(PLDT) filed a Motion for Reconsideration with Motion to Refer the
Case to the Supreme Court En Banc. It maintains that the Amended
Information charging petitioner with theft is valid and sufficient;
that it states the names of all the accused who were specifically
charged with the crime of theft of PLDTs international calls and
business of providing telecommunication or telephone service on or
about September 10 to 19, 1999 in Makati City by conducting ISR
or International Simple Resale; that it identifies the international
calls and business of providing telecommunication or telephone
service of PLDT as the personal properties which were unlawfully
taken by the accused; and that it satisfies the test of sufficiency as
it enabled a person of common understanding to know the charge
against him and the court to render judgment properly.
PLDT further insists that the Revised Penal Code should be
interpreted in the context of the Civil Codes definition of real and
personal property. The enumeration of real properties in Article 415
of the Civil Code is exclusive such that all those not included
therein are personal properties. Since Article 308 of the Revised
Penal Code used the words personal property without qualification,
it follows that all personal properties as understood in the context
of the Civil Code, may be the subject of theft under Article 308 of
the Revised Penal Code. PLDT alleges that the international calls
and business of providing telecommunication or telephone service
are personal properties capable of appropriation and can be objects
of theft.
PLDT also argues that taking in relation to theft under the
Revised Penal Code does not require asportation, the sole requisite
being that the object should be capable of appropriation. The
element of taking referred to in Article 308 of the Revised Penal
Code means the act of depriving another of the possession and
dominion of a movable coupled with the intention, at the time of
the taking, of withholding it with the character of
permanency. There must be intent to appropriate, which means to
deprive the lawful owner of the thing. Thus, the term personal
properties under Article 308 of the Revised Penal Code is not
limited to only personal properties which are susceptible of being
severed from a mass or larger quantity and of being transported
from place to place.
PLDT likewise alleges that as early as the 1930s,
international telephone calls were in existence; hence, there is no
basis for this Courts finding that the Legislature could not have
contemplated the theft of international telephone calls and the
unlawful transmission and routing of electronic voice signals or
impulses emanating from such calls by unlawfully tampering with
the telephone device as within the coverage of the Revised Penal
Code.
According to respondent, the international phone calls
which are electric currents or sets of electric impulses transmitted
through a medium, and carry a pattern representing the human
voice to a receiver, are personal properties which may be subject of
theft. Article 416(3) of the Civil Code deems forces of nature (which
includes electricity) which are brought under the control by science,
are personal property.
In his Comment to PLDTs motion for reconsideration,
petitioner Laurel claims that a telephone call is a conversation on
the phone or a communication carried out using the telephone. It is
not synonymous to electric current or impulses. Hence, it may not
be considered as personal property susceptible of
appropriation. Petitioner claims that the analogy between
generated electricity and telephone calls is misplaced. PLDT does
not produce or generate telephone calls. It only provides the
facilities or services for the transmission and switching of the
calls. He also insists that business is not personal property. It is not
the business that is protected but the right to carry on a
business. This right is what is considered as property. Since the
services of PLDT cannot be considered as property, the same may
not be subject of theft.
The Office of the Solicitor General (OSG) agrees with
respondent PLDT that international phone calls and the business or
service of providing international phone calls are subsumed in the
enumeration and definition of personal property under the Civil
18
Code hence, may be proper subjects of theft. It noted that the
cases of United States v. Genato,[3]United States v.
Carlos and United States v. Tambunting,[5] which recognized
[4]
intangible properties like gas and electricity as personal properties,
are deemed incorporated in our penal laws. Moreover, the theft
provision in the Revised Penal Code was deliberately couched in
broad terms precisely to be all-encompassing and embracing even
such scenario that could not have been easily anticipated.
According to the OSG, prosecution under Republic Act (RA)
No. 8484 or the Access Device Regulations Act of 1998 and RA
8792 or the Electronic Commerce Act of 2000does not preclude
prosecution under the Revised Penal Code for the crime of
theft. The latter embraces unauthorized appropriation or use of
PLDTs international calls, service and business, for personal profit or
gain, to the prejudice of PLDT as owner thereof. On the other hand,
the special laws punish the surreptitious and advanced technical
means employed to illegally obtain the subject service and
business. Even assuming that the correct indictment should have
been under RA 8484, the quashal of the information would still not
be proper. The charge of theft as alleged in the Information should
be taken in relation to RA 8484 because it is the elements, and not
the designation of the crime, that control.
Considering the gravity and complexity of the novel questions of
law involved in this case, the Special First Division resolved to refer
the same to the Banc.
We resolve to grant the Motion for Reconsideration but
remand the case to the trial court for proper clarification of the
Amended Information.
Article 308 of the Revised Penal Code provides:
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 elements of theft under Article 308 of the Revised
Penal Code are as follows: (1) that there be 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 against or intimidation of
persons or force upon things.
Prior to the passage of the Revised Penal Code on December 8,
1930, the definition of the term personal property in the penal code
provision on theft had been established in Philippine
jurisprudence. This Court, in United States v. Genato, United States
v. Carlos, and United States v. Tambunting, consistently ruled that
any personal property, tangible or intangible, corporeal or
incorporeal, capable of appropriation can be the object of theft.
Moreover, since the passage of the Revised Penal Code
on December 8, 1930, the term personal property has had a
generally accepted definition in civil law. In Article 335 of the Civil
Code of Spain, personal property is defined as anything susceptible
of appropriation and not included in the foregoing chapter (not real
property). Thus, the term personal property in the Revised Penal
Code should be interpreted in the context of the Civil Code
provisions in accordance with the rule on statutory construction
that where words have been long used in a technical sense and
have been judicially construed to have a certain meaning, and have
been adopted by the legislature as having a certain meaning prior
to a particular statute, in which they are used, the words used in
such statute should be construed according to the sense in which
they have been previously used.[6] In fact, this Court used the Civil
Code definition of personal property in interpreting the theft
provision of the penal code in United States v. Carlos.
Cognizant of the definition given by jurisprudence and the Civil
Code of Spain to the term personal property at the time the old
Penal Code was being revised, still the legislature did not limit or
qualify the definition of personal property in the Revised Penal
Code. Neither did it provide a restrictive definition or an exclusive
enumeration of personal property in the Revised Penal Code,
thereby showing its intent to retain for the term an extensive and
unqualified interpretation. Consequently, any property which is not
included in the enumeration of real properties under the Civil Code
and capable of appropriation can be the subject of theft under the
Revised Penal Code.
The only requirement for a personal property to be the object of
theft under the penal code is that it be capable of appropriation. It
need not be capable of asportation, which is defined as carrying
away.[7] Jurisprudence is settled that to take under the theft
provision of the penal code does not require asportation or carrying
away.[8]
To appropriate means to deprive the lawful owner of the thing.
[9]
The word take in the Revised Penal Code includes any act
intended to transfer possession which, as held in the assailed
Decision, may be committed through the use of the offenders own
hands, as well as any mechanical device, such as an access device
or card as in the instant case. This includes controlling the
destination of the property stolen to deprive the owner of the
property, such as the use of a meter tampering, as held
in Natividad v. Court of Appeals,[10]use of a device to fraudulently
obtain gas, as held in United States v. Tambunting, and the use of a
jumper to divert electricity, as held in the cases of United States v.
Genato, United States v. Carlos, and United States v. Menagas.[11]
As illustrated in the above cases, appropriation of forces of nature
which are brought under control by science such as electrical
energy can be achieved by tampering with any apparatus used for
generating or measuring such forces of nature, wrongfully
redirecting such forces of nature from such apparatus, or using any
device to fraudulently obtain such forces of nature. In the instant
case, petitioner was charged with engaging in International Simple
Resale (ISR) or the unauthorized routing and completing of
international long distance calls using lines, cables, antennae,
and/or air wave frequency and connecting these calls directly to the
local or domestic exchange facilities of the country where destined.
As early as 1910, the Court declared in Genato that ownership over
electricity (which an international long distance call consists of), as
well as telephone service, is protected by the provisions on theft of
the Penal Code. The pertinent provision of the Revised Ordinance of
the City of Manila, which was involved in the said case, reads as
follows:
Injury to electric apparatus; Tapping current;
Evidence. No person shall destroy, mutilate,
deface, or otherwise injure or tamper with any
wire, meter, or other apparatus installed or used
for generating, containing, conducting, or
measuring electricity, telegraph or telephone
service, nor tap or otherwise wrongfully deflect or
take any electric current from such wire, meter,
or other apparatus.
No person shall, for any purpose
whatsoever, use or enjoy the benefits of any
device by means of which he may fraudulently
obtain any current of electricity or any telegraph
or telephone service; and the existence in any
building premises of any such device shall, in the
absence of satisfactory explanation, be deemed
sufficient evidence of such use by the persons
benefiting thereby.
It was further ruled that even without the above ordinance the acts
of subtraction punished therein are covered by the provisions on
theft of the Penal Code then in force, thus:
Even without them (ordinance), the right
of the ownership of electric current is secured by
articles 517 and 518 of the Penal Code; the
application of these articles in cases of
subtraction of gas, a fluid used for lighting, and in
some respects resembling electricity, is
confirmed by the rule laid down in the decisions
of the supreme court of Spain of January 20,
1887, and April 1, 1897, construing and enforcing
the provisions of articles 530 and 531 of the Penal
19
Code of that country, articles 517 and 518 of the
code in force in these islands.
The acts of subtraction include: (a) tampering with any wire, meter,
or other apparatus installed or used for generating, containing,
conducting, or measuring electricity, telegraph or telephone
service; (b) tapping or otherwise wrongfully deflecting or taking any
electric current from such wire, meter, or other apparatus; and (c)
using or enjoying the benefits of any device by means of which one
may fraudulently obtain any current of electricity or any telegraph
or telephone service.
In the instant case, the act of conducting ISR operations by illegally
connecting various equipment or apparatus to private respondent
PLDTs telephone system, through which petitioner is able to resell
or re-route international long distance calls using respondent PLDTs
facilities constitutes all three acts of subtraction mentioned above.
The business of providing telecommunication or telephone service
is likewise personal property which can be the object of theft under
Article 308 of the Revised Penal Code.Business may be
appropriated under Section 2 of Act No. 3952 (Bulk Sales Law),
hence, could be object of theft:
Section 2. Any sale, transfer, mortgage,
or assignment of a stock of goods, wares,
merchandise, provisions, or materials otherwise
than in the ordinary course of trade and the
regular prosecution of the business of the vendor,
mortgagor, transferor, or assignor, or any sale,
transfer, mortgage, or assignment of all, or
substantially all, of the business or trade
theretofore conducted by the vendor, mortgagor,
transferor or assignor, or all, or substantially all,
of the fixtures and equipment used in and about
the business of the vendor, mortgagor, transferor,
or assignor, shall be deemed to be a sale and
transfer in bulk, in contemplation of the Act. x x
x.
In Strochecker v. Ramirez,[12] this Court stated:
With regard to the nature of the property
thus mortgaged which is one-half interest in the
business above described, such interest is a
personal property capable of appropriation and
not included in the enumeration of real properties
in article 335 of the Civil Code, and may be the
subject of mortgage.
Interest in business was not specifically enumerated as personal
property in the Civil Code in force at the time the above decision
was rendered. Yet, interest in business was declared to be personal
property since it is capable of appropriation and not included in the
enumeration of real properties. Article 414 of the Civil Code
provides that all things which are or may be the object of
appropriation are considered either real property or personal
property. Business is likewise not enumerated as personal property
under the Civil Code. Just like interest in business, however, it may
be appropriated. Following the ruling in Strochecker v. Ramirez,
business should also be classified as personal property. Since it is
not included in the exclusive enumeration of real properties under
Article 415, it is therefore personal property.[13]
As can be clearly gleaned from the above disquisitions,
petitioners acts constitute theft of respondent PLDTs business and
service, committed by means of the unlawful use of the latters
facilities. In this regard, the Amended Information inaccurately
describes the offense by making it appear that what petitioner took
were the international long distance telephone calls, rather than
respondent PLDTs business.
A perusal of the records of this case readily reveals that petitioner
and respondent PLDT extensively discussed the issue of ownership
of telephone calls. The prosecution has taken the position that said
telephone calls belong to respondent PLDT. This is evident from its
Comment where it defined the issue of this case as whether or not
the unauthorized use or appropriation of PLDT international
telephone calls, service and facilities, for the purpose of generating
personal profit or gain that should have otherwise belonged to
PLDT, constitutes theft.[14]
In discussing the issue of ownership, petitioner and respondent
PLDT gave their respective explanations on how a telephone call is
generated.[15] For its part, respondent PLDT explains the process of
generating a telephone call as follows:
38. The role of telecommunication
companies is not limited to merely providing the
medium (i.e. the electric current) through which
the human voice/voice signal of the caller is
transmitted. Before the human voice/voice signal
can be so transmitted, a telecommunication
company, using its facilities, must first break
down or decode the human voice/voice signal
into electronic impulses and subject the same to
further augmentation and enhancements. Only
after such process of conversion will the resulting
electronic impulses be transmitted by a
telecommunication company, again, through the
use of its facilities. Upon reaching the destination
of the call, the telecommunication company will
again break down or decode the electronic
impulses back to human voice/voice signal before
the called party receives the same. In other
words, a telecommunication company both
converts/reconverts the human voice/voice signal
and provides the medium for transmitting the
same.
39. Moreover, in the case of an
international telephone call, once the electronic
impulses originating from a foreign
telecommunication company country (i.e. Japan)
reaches the Philippines through a local
telecommunication company (i.e. private
respondent PLDT), it is the latter which decodes,
augments and enhances the electronic impulses
back to the human voice/voice signal and
provides the medium (i.e. electric current) to
enable the called party to receive the call. Thus,
it is not true that the foreign telecommunication
company provides (1) the electric current which
transmits the human voice/voice signal of the
caller and (2) the electric current for the called
party to receive said human voice/voice signal.
40. Thus, contrary to petitioner Laurels
assertion, once the electronic impulses or electric
current originating from a foreign
telecommunication company (i.e. Japan) reaches
private respondent PLDTs network, it is private
respondent PLDT which decodes, augments and
enhances the electronic impulses back to the
human voice/voice signal and provides the
medium (i.e. electric current) to enable the called
party to receive the call. Without private
respondent PLDTs network, the human
voice/voice signal of the calling party will never
reach the called party.[16]
In the assailed Decision, it was conceded that in making the
international phone calls, the human voice is converted into
electrical impulses or electric current which are transmitted to the
party called. A telephone call, therefore, is electrical energy. It was
also held in the assailed Decision that intangible property such as
electrical energy is capable of appropriation because it may be
taken and carried away. Electricity is personal property under
Article 416 (3) of the Civil Code, which enumerates forces of nature
which are brought under control by science.[17]
Indeed, while it may be conceded that international long distance
calls, the matter alleged to be stolen in the instant case, take the
form of electrical energy, it cannot be said that such international
long distance calls were personal properties belonging to PLDT
since the latter could not have acquired ownership over such
calls. PLDT merely encodes, augments, enhances, decodes and
transmits said calls using its complex communications
infrastructure and facilities. PLDT not being the owner of said
20
telephone calls, then it could not validly claim that such telephone
calls were taken without its consent. It is the use of these
communications facilities without the consent of PLDT that
constitutes the crime of theft, which is the unlawful taking of the
telephone services and business.
Therefore, the business of providing telecommunication
and the telephone service are personal property under Article 308
of the Revised Penal Code, and the act of engaging in ISR is an act
of subtraction penalized under said article. However, the Amended
Information describes the thing taken as, international long
distance calls, and only later mentions stealing the business from
PLDT as the manner by which the gain was derived by the
accused. In order to correct this inaccuracy of description, this case
must be remanded to the trial court and the prosecution directed to
amend the Amended Information, to clearly state that the property
subject of the theft are the services and business of respondent
PLDT. Parenthetically, this amendment is not necessitated by a
mistake in charging the proper offense, which would have called for
the dismissal of the information under Rule 110, Section 14 and
Rule 119, Section 19 of the Revised Rules on Criminal Procedure. To
be sure, the crime is properly designated as one of theft. The
purpose of the amendment is simply to ensure that the accused is
fully and sufficiently apprised of the nature and cause of the charge
against him, and thus guaranteed of his rights under the
Constitution.
ACCORDINGLY, the motion for reconsideration
is GRANTED. The assailed Decision dated February 27, 2006
is RECONSIDERED and SET ASIDE. The Decision of the Court of
Appeals in CA-G.R. SP No. 68841 affirming the Order issued by
Judge Zeus C. Abrogar of the Regional Trial Court of Makati City,
Branch 150, which denied the Motion to Quash (With Motion to
Defer Arraignment) in Criminal Case No. 99-2425 for theft,
is AFFIRMED. The case is remanded to the trial court and the
Public Prosecutor of Makati City is hereby DIRECTED to amend the
Amended Information to show that the property subject of the theft
were services and business of the private offended party.
ARISTOTEL VALENZUELA VS PEOPLE
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a
result, he should be adjudged guilty of frustrated theft only, not the
felony in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two well-
known decisions[1] rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in
both cases were found guilty. However, the rationale behind the
rulings has never been affirmed by this Court.
As far as can be told,[2] the last time this Court extensively
considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.[3] A more
cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now
gives occasion for us to finally and fully measure if or how
frustrated theft is susceptible to commission under the Revised
Penal Code.
I.
The basic facts are no longer disputed before us. The case stems
from an Information[6] charging petitioner Aristotel Valenzuela
(petitioner) and Jovy Calderon (Calderon) with the crime of theft.
On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were
sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open
parking area of the supermarket. Lago saw petitioner, who was
wearing an identification card with the mark Receiving Dispatching
Unit (RDU), hauling a push cart with cases of detergent of the well-
known Tide brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes,
emerged with more cartons of Tide Ultramaticand again unloaded
these boxes to the same area in the open parking space. [7]
Thereafter, petitioner left the parking area and haled a
taxi. He boarded the cab and directed it towards the parking space
where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts
were eyed by Lago, who proceeded to stop the taxi as it was
leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by
fleeing on foot, but Lago fired a warning shot to alert his fellow
security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.
[8]
The filched items seized from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional
cases of detergent, the goods with an aggregate value
of P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security office
before they were transferred on the same day to the Baler Station II
of the Philippine National Police, Quezon City, for investigation. It
appears from the police investigation records that apart from
petitioner and Calderon, four (4) other persons were apprehended
by the security guards at the scene and delivered to police custody
at the Baler PNP Station in connection with the incident. However,
after the matter was referred to the Office of the Quezon City
Prosecutor, only petitioner and Calderon were charged with theft by
the Assistant City Prosecutor, in Informations prepared on 20 May
1994, the day after the incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May
1994 when they were haled by Lago and his fellow security guards
after a commotion and brought to the Baler PNP Station. Calderon
alleged that on the afternoon of the incident, he was at the Super
Sale Club to withdraw from his ATM account, accompanied by his
neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long,
Calderon and Rosulada decided to buy snacks inside the
supermarket. It was
while they were eating that they heard the gunshot fired by
Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly grabbed by a
security guard, thus commencing their detention. [12] Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio
Valenzuela,[13] had been at the parking lot, walking beside the
nearby BLISS complex and headed to ride a tricycle going to Pag-
asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start
running, at which point he was apprehended by Lago and brought
to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the
others were brought to the Baler Police Station. At the station,
petitioner denied having stolen the cartons of detergent, but he
was detained overnight, and eventually brought to the prosecutors
office where he was charged with theft. [14]During petitioners cross-
examination, he admitted that he had been employed as a bundler
of GMS Marketing, assigned at the supermarket though not at SM.
[15]
In a Decision[16] promulgated on 1 February 2000, the Regional Trial
Court (RTC) of Quezon City, Branch 90, convicted both petitioner
and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years
of prision correccional as minimum to seven (7) years of prision
mayor as maximum.[17] The RTC found credible the testimonies of
the prosecution witnesses and established the convictions on the
positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,
[18]
but only petitioner filed a brief [19] with the Court of Appeals,
causing the appellate court to deem Calderons appeal as
abandoned and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be convicted of
21
frustrated theft since at the time he was apprehended, he was
never placed in a position to freely dispose of the articles stolen.
[20]
However, in its Decision dated 19 June 2003,[21] the Court of
Appeals rejected this contention and affirmed petitioners
conviction.[22] Hence the present Petition for Review, [23] which
expressly seeks that petitioners conviction be modified to only of
Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner
effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a total
value of P12,090.00 of which he was charged. [25] As such, there is
no cause for the Court to consider a factual scenario other than
that presented by the prosecution, as affirmed by the RTC and the
Court of Appeals. The only question to consider is whether under
the given facts, the theft should be deemed as consummated or
merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft,
petitioner cites[26] two decisions rendered many years ago by the
Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both
decisions elicit the interest of this Court, as they modified trial court
convictions from consummated to frustrated theft and involve a
factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet
the appellate court did not expressly consider the import of the
rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving
short shrift to the Dio and Flores rulings since they have not yet
been expressly adopted as precedents by this Court. For whatever
reasons,
the occasion to define or debunk the crime of frustrated theft has
not come to pass before us. Yet despite the silence on our
part, Dio and Flores have attained a level of renown reached by
very few other appellate court rulings. They are comprehensively
discussed in the most popular of our criminal law annotations,
[29]
and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly
akin to the fanciful scenarios that populate criminal law exams
more than they actually occur in real life. Indeed, if we finally say
that Dio and Flores are doctrinal, such conclusion could profoundly
influence a multitude of routine theft prosecutions, including
commonplace shoplifting. Any scenario that involves the thief
having to exit with the stolen property through a supervised egress,
such as a supermarket checkout counter or a parking area pay
booth, may easily call for the application of Dio and Flores. The fact
that lower courts have not hesitated to lay down convictions for
frustrated theft further validates that Dio and Flores and the
theories offered therein on frustrated theft have borne some weight
in our jurisprudential system. The time is thus ripe for us to
examine whether those theories are correct and should continue to
influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as
well as the specific issues relative to frustrated theft, it is necessary
to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.[30]
Article 6 defines those three stages, namely the consummated,
frustrated and attempted felonies. A felony is consummated when
all the elements necessary for its execution and accomplishment
are present. It is frustrated when the offender performs all the acts
of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. Finally, it is attempted
when the offender commences the commission of a felony directly
by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident
other than his own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase,
or that portion of the acts constituting the crime included between
the act which begins the commission of the crime and the last act
performed by the offender which, with prior acts, should result in
the consummated crime.[31] After that point has been breached, the
subjective phase ends and the objective phase begins. [32] It has
been held that if the offender never passes the subjective phase of
the offense, the crime is merely attempted.[33] On the other hand,
the subjective phase is completely passed in case of frustrated
crimes, for in such instances, [s]ubjectively the crime is complete.
[34]
Truly, an easy distinction lies between consummated and
frustrated felonies on one hand, and attempted felonies on the
other. So long as the offender fails to complete all the acts of
execution despite commencing the commission of a felony, the
crime is undoubtedly in the attempted stage. Since the specific acts
of execution that define each crime under the Revised Penal Code
are generally enumerated in the code itself, the task of ascertaining
whether a crime is attempted only would need to compare the acts
actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts
of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually
produced by the acts of execution. The determination of whether
the felony was produced after all the acts of execution had been
performed hinges on the particular statutory definition of the
felony. It is the statutory definition that generally furnishes the
elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution
and accompanying criminal intent.
The long-standing Latin maxim actus non facit reum, nisi mens sit
rea supplies an important characteristic of a crime, that ordinarily,
evil intent must unite with an unlawful act for there to be a crime,
and accordingly, there can be no crime when the criminal mind is
wanting.[35] Accepted in this jurisdiction as material in crimes mala
in se,[36] mens reahas been defined before as a guilty mind, a guilty
or wrongful purpose or criminal intent,[37] and essential for criminal
liability.[38] It follows that the statutory definition of our mala in
se crimes must be able to supply what the mens rea of the crime is,
and indeed the U.S. Supreme Court has comfortably held that a
criminal law that contains no mens rearequirement infringes on
constitutionally protected rights.[39] The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to
exist in our legal law, it is not enough that mens rea be shown;
there must also be an actus reus.[40]
It is from the actus reus and the mens rea, as they find
expression in the criminal statute, that the felony is produced. As a
postulate in the craftsmanship of constitutionally sound laws, it is
extremely preferable that the language of the law expressly provide
when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a
crime was committed, thereby presaging the undesirable and
legally dubious set-up under which the judiciary is assigned the
legislative role of defining crimes. Fortunately, our Revised Penal
Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is
embeddedwhich attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or
homicide expressly uses the phrase shall kill another, thus making
it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308
of the Revised Penal Code, its elements are spelled out 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.
Theft is likewise committed by:
22
1. Any person who, having found
lost property, shall fail to
deliver the same to the local
authorities or to its owner;
2. Any person who, after having
maliciously damaged the
property of another, shall
remove or make use of the
fruits or object of the damage
caused by him; and
3. Any person who shall enter an
inclosed estate or a field where
trespass is forbidden or which
belongs to another and without
the consent of its owner, shall
hunt or fish upon the same or
shall gather cereals, or other
forest or farm products.
Article 308 provides for a general definition of theft, and three
alternative and highly idiosyncratic means by which theft may be
committed.[41] In the present discussion, we need to concern
ourselves only with the general definition since it was under it that
the prosecution of the accused was undertaken and sustained. On
the face of the definition, there is only one operative act of
execution by the actor involved in theft the taking of personal
property of another. It is also clear from the provision that in order
that such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was with
intent to gain; without force upon things or violence against or
intimidation of persons; and it was without the consent of the
owner of the property.
Indeed, we have long recognized the following elements of
theft as provided for in Article 308 of the Revised Penal Code,
namely: (1) that there be taking of personal property; (2) that said
property belongs to 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 against or intimidation of persons or force upon things.[42]
In his commentaries, Judge Guevarra traces the history of
the definition of theft, which under early Roman law as defined by
Gaius, was so broad enough as to encompass any kind of physical
handling of property belonging to another against the will of the
owner,[43] a definition similar to that by Paulus that a thief handles
(touches, moves) the property of another. [44] However, with the
Institutes of Justinian, the idea had taken hold that more than mere
physical handling, there must further be an intent of acquiring gain
from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri
faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.
[45]
This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it
has since been abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded
with apoderamiento, or unlawful taking, to characterize theft.
Justice Regalado notes that the concept of apoderamientoonce had
a controversial interpretation and application. Spanish law had
already discounted the belief that mere physical taking was
constitutive of apoderamiento, finding that it had to be coupled
with the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing. [47] However, a conflicting line of cases
decided by the Court of Appeals ruled, alternatively, that there
must be permanency in the taking [48] or an intent to permanently
deprive the owner of the stolen property; [49] or that there was no
need for permanency in the taking or in its intent, as the mere
temporary possession by the offender or disturbance of the
proprietary rights of the owner already constituted apoderamiento.
[50]
Ultimately, as Justice Regalado notes, the Court adopted the
latter thought that there was no need of an intent to permanently
deprive the owner of his property to constitute an unlawful taking.
[51]
So long as the descriptive circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the
completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression
went beyond the attempted stage. As applied to the present case,
the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated
by intent to gain, completed without need to inflict violence or
intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club,
petitioner forfeited the extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was consummated or
frustrated theft, we are obliged to apply Article 6 of the Revised
Penal Code to ascertain the answer. Following that provision, the
theft would have been frustrated only, once the acts committed by
petitioner, if ordinarily sufficient to produce theft as a consequence,
do not produce [such theft] by reason of causes independent of the
will of the perpetrator. There are clearly two determinative factors
to consider: that the felony is not produced, and that such failure is
due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each
particular case. The first, however, relies primarily on a doctrinal
definition attaching to the individual felonies in the Revised Penal
Code[52] as to when a particular felony is not produced, despite the
commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or
frustrated, it is necessary to inquire as to how exactly is the felony
of theft produced. Parsing through the statutory definition of theft
under Article 308, there is one apparent answer provided in the
language of the law that theft is already produced upon the tak[ing
of] personal property of another without the latters consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt
from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to get
the merchandise out of the Custom House, and it appears that he
was under observation during the entire transaction. [54] Based
apparently on those two circumstances, the trial court had found
him guilty, instead, of frustrated theft. The Court reversed, saying
that neither circumstance was decisive, and holding instead that
the accused was guilty of consummated theft, finding that all the
elements of the completed crime of theft are present. [55] In support
of its conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:
The defendant was charged with the theft of
some fruit from the land of another. As he was in
the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at
that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial
court did not err [x x x ] in considering the crime
as that of consummated theft instead of
frustrated theft inasmuch as nothing appears in
the record showing that the policemen who saw
the accused take the fruit from the adjoining land
arrested him in the act and thus prevented him
from taking full possession of the thing stolen and
even its utilization by him for an interval of time."
(Decision of the Supreme Court of Spain, October
14, 1898.)
Defendant picked the pocket of the
offended party while the latter was hearing mass
in a church. The latter on account of the
solemnity of the act, although noticing the theft,
did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the
church, the offended party got back the money
23
from the defendant. The court said that the
defendant had performed all the acts of execution
and considered the theft as consummated.
(Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of
a certain house and by means of a key opened up
a case, and from the case took a small box, which
was also opened with a key, from which in turn he
took a purse containing 461 reales and 20
centimos, and then he placed the money over the
cover of the case; just at this moment he was
caught by two guards who were stationed in
another room near-by. The court considered this
as consummated robbery, and said: "[x x x] The
accused [x x x] having materially taken
possession of the money from the moment he
took it from the place where it had been, and
having taken it with his hands with intent to
appropriate the same, he executed all the acts
necessary to constitute the crime which was
thereby produced; only the act of making use of
the thing having been frustrated, which, however,
does not go to make the elements of the
consummated crime." (Decision of the Supreme
Court of Spain, June 13, 1882.)[56]
It is clear from the facts of Adiao itself, and the three (3) Spanish
decisions cited therein, that the criminal actors in all these cases
had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission
of the acts of theft and the apprehension of the thieves did vary,
from sometime later in the 1898 decision; to the very moment the
thief had just extracted the money in a purse which had been
stored as it was in the 1882 decision; and before the thief had been
able to spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision. Still, such
intervals proved of no consequence in those cases, as it was ruled
that the thefts in each of those cases was consummated by the
actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused
was guilty only of frustrated rather than consummated theft. The
case is People v. Sobrevilla,[57] where the accused, while in the
midst of a crowd in a public market, was already able to abstract a
pocketbook from the trousers of the victim when the latter,
perceiving the theft, caught hold of the [accused]s shirt-front, at
the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was
afterwards caught by a policeman.[58] In rejecting the contention
that only frustrated theft was established, the Court simply said,
without further comment or elaboration:
We believe that such a contention is
groundless. The [accused] succeeded in
taking the pocket-book, and that determines
the crime of theft. If the pocket-book was
afterwards recovered, such recovery does
not affect the [accuseds] criminal liability,
which arose from the [accused] having
succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish
Supreme Court cases cited in the latter, in that the fact that the
offender was able to succeed in obtaining physical possession of
the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions
cited therein contradict the position of petitioner in this case. Yet to
simply affirm without further comment would be disingenuous, as
there is another school of thought on when theft is consummated,
as reflected in the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31
years after Adiao and 15 years before Flores. The accused therein,
a driver employed by the United States Army, had driven his truck
into the port area of the South Harbor, to unload a truckload of
materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he
was approaching a checkpoint of the Military Police, he was stopped
by an M.P. who inspected the truck and found therein three boxes of
army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that
they were to meet him and retrieve the rifles after he had passed
the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding
instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the
evident intent of the accused was to let the boxes of rifles pass
through the checkpoint, perhaps in the belief that as the truck had
already unloaded its cargo inside the depot, it would be allowed to
pass through the check point without further investigation or
checking.[60] This point was deemed material and indicative that the
theft had not been fully produced, for the Court of Appeals
pronounced that the fact determinative of consummation is the
ability of the thief to dispose freely of the articles stolen, even if it
were more or less momentary.[61] Support for this proposition was
drawn from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el
apoderamiento de la cosa sustraida sea determinate
de la consumacion del delito de hurto es preciso que
so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea
mas o menos momentaneamente, pues de otra
suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su
extension, sin materializar demasiado el acto de
tomar la cosa ajena.[62]
Integrating these considerations, the Court of Appeals
then concluded:
This court is of the opinion that in the
case at bar, in order to make the booty subject to
the control and disposal of the culprits, the
articles stolen must first be passed through the
M.P. check point, but since the offense was
opportunely discovered and the articles seized
after all the acts of execution had been
performed, but before the loot came under the
final control and disposal of the looters, the
offense can not be said to have been fully
consummated, as it was frustrated by the timely
intervention of the guard. The offense committed,
therefore, is that of frustrated theft.[63]
Dio thus laid down the theory that the ability of the actor
to freely dispose of the items stolen at the time of apprehension is
determinative as to whether the theft is consummated or
frustrated. This theory was applied again by the Court of Appeals
some 15 years later, in Flores, a case which according to the
division of the court that decided it, bore no substantial variance
between the circumstances [herein] and in [Dio].[64] Such conclusion
is borne out by the facts in Flores. The accused therein, a checker
employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded
the purportedly empty sea van onto his truck at the terminal of the
stevedoring company. The truck driver proceeded to show the
delivery receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and discovered
that the empty sea van had actually contained other merchandise
as well.[65] The accused was prosecuted for theft qualified by abuse
of confidence, and found himself convicted of the consummated
crime. Before the Court of Appeals, accused argued in the
alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of
spontaneous desistance on the part of the accused that literally
frustrated the theft. However, the Court of Appeals, explicitly
relying on Dio, did find that the accused was guilty only of
frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found no
substantial variance between Dio and Flores then before it. The
prosecution in Flores had sought to distinguish that case from Dio,
citing a traditional ruling which unfortunately was not identified in
24
the decision itself. However, the Court of Appeals pointed out that
the said traditional ruling was qualified by the words is placed in a
situation where [the actor] could dispose of its contents at once.
[66]
Pouncing on this qualification, the appellate court noted that
[o]bviously, while the truck and the van were still within the
compound, the petitioner could not have disposed of the goods at
once. At the same time, the Court of Appeals conceded that [t]his is
entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where
freedom to dispose of or make use of it is palpably less restricted,
[67]
though no further qualification was offered what the effect would
have been had that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The
determinative characteristic as to whether the crime of theft was
produced is the ability of the actor to freely dispose of the articles
stolen, even if it were only momentary. Such conclusion was drawn
from an 1888 decision of the Supreme Court of Spain which had
pronounced that in determining whether theft had been
consummated, es preciso que so haga en circunstancias tales que
permitan al sustractor de aquella, siquiera sea mas o menos
momentaneamente. The qualifier siquiera sea mas o menos
momentaneamente proves another important consideration, as it
implies that if the actor was in a capacity to freely dispose of the
stolen items before apprehension, then the theft could be deemed
consummated. Such circumstance was not present in
either Dio or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted
from the guarded compounds from which the items were filched.
However, as implied inFlores, the character of the item stolen could
lead to a different conclusion as to whether there could have been
free disposition, as in the case where the chattel involved was
of much less bulk and more common x x x, [such] as money x x x.
[68]
In his commentaries, Chief Justice Aquino makes the
following pointed observation on the import of the Dio ruling:
There is a ruling of the Court of Appeals
that theft is consummated when the thief is able
to freely dispose of the stolen articles even if it
were more or less momentary. Or as stated in
another case[[69]], theft is consummated upon the
voluntary and malicious taking of property
belonging to another which is realized by the
material occupation of the thing whereby the
thief places it under his control and in such a
situation that he could dispose of it at once. This
ruling seems to have been based on Viadas
opinion that in order the theft may be
consummated, es preciso que se haga en
circumstancias x x x [[70]][71]
In the same commentaries, Chief Justice Aquino,
concluding from Adiao and other cases, also states that [i]n theft or
robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same,
although his act of making use of the thing was frustrated.[72]
There are at least two other Court of Appeals rulings that
are at seeming variance with the Dio and Flores rulings. People v.
Batoon[73] involved an accused who filled a container with gasoline
from a petrol pump within view of a police detective, who followed
the accused onto a passenger truck where the arrest was made.
While the trial court found the accused guilty of frustrated qualified
theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that [t]he facts of the cases
of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that
actual taking with intent to gain is enough to consummate the
crime of theft.[74]
In People v. Espiritu,[75] the accused had removed nine
pieces of hospital linen from a supply depot and loaded them onto
a truck. However, as the truck passed through the checkpoint, the
stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with
those in Dio, the Court of Appeals held that the accused were guilty
of consummated theft, as the accused were able to take or get hold
of the hospital linen and that the only thing that was frustrated,
which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense. [76]
In pointing out the distinction between Dio and Espiritu,
Reyes wryly observes that [w]hen the meaning of an element of a
felony is controversial, there is bound to arise different rulings as to
the stage of execution of that felony. [77] Indeed, we can discern from
this survey of jurisprudence that the state of the law insofar as
frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in
the first place.
IV.
The Court in 1984 did finally rule directly that an accused
was guilty of frustrated, and not consummated, theft. As we
undertake this inquiry, we have to reckon with the import of this
Courts 1984 decision in Empelis v. IAC.[78]
As narrated in Empelis, the owner of a coconut plantation
had espied four (4) persons in the premises of his plantation, in the
act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying
with them the coconuts they had gathered. The accused fled the
scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the
police. After trial, the accused were convicted of qualified theft, and
the issue they raised on appeal was that they were guilty only of
simple theft. The Court affirmed that the theft was qualified,
following Article 310 of the Revised Penal Code, [79] but further held
that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue
of whether the theft was consummated or frustrated was raised by
any of the parties. What does appear, though, is that the
disposition of that issue was contained in only two sentences, which
we reproduce in full:
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 felony as a
consequence. They were not able to carry the
coconuts away from the plantation due to the
timely arrival of the owner.[80]
No legal reference or citation was offered for this averment,
whether Dio, Flores or the Spanish authorities who may have
bolstered the conclusion. There are indeed evident problems with
this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors
were not able to perform all the acts of execution which
should have produced the felon as a consequence. [81] However, per
Article 6 of the Revised Penal Code, the crime is frustrated when
the offender performs all the acts of execution, though not
producing the felony as a result. If the offender was not able to
perform all the acts of execution, the crime is attempted, provided
that the non-
performance was by reason of some cause or accident other than
spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed
due to the timely arrival of the owner. However, following Article 6
of the Revised Penal Code, these facts should elicit the conclusion
that the crime was only attempted, especially given that the acts
were not performed because of the timely arrival of the owner, and
not because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we
consider the present petition. Even if the two sentences we had
cited actually aligned with the definitions provided in Article 6 of
25
the Revised Penal Code, such passage bears no reflection that it is
the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no
further explication.
Notably, Empelis has not since been reaffirmed by the Court, or
even cited as authority on theft. Indeed, we cannot see
how Empelis can contribute to our present debate, except for the
bare fact that it proves that the Court had once deliberately found
an accused guilty of frustrated theft. Even if Empelis were
considered as a precedent for frustrated theft, its doctrinal value is
extremely compromised by the erroneous legal premises that
inform it, and also by the fact that it has not been entrenched by
subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable
given that frustrated theft is viable in this jurisdiction. Considering
the flawed reasoning behind its conclusion of frustrated theft, it
cannot present any efficacious argument to persuade us in this
case. Insofar as Empelis may imply that convictions for frustrated
theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the
1870 Codigo Penal de Espaa was then in place. The definition of the
crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o
intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.
2. Los que encontrndose una cosa perdida y
sabiendo quin es su dueo se la apropriaren
co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren
los frutos u objeto del dao causado, salvo los
casos previstos en los artculos 606, nm. 1.0;
607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611;
613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the
aforecited Spanish Supreme Court decisions were handed down.
However, the said code would be revised again in 1932, and
several times thereafter. In fact, under the Codigo Penal Espaol de
1995, the crime of theft is now simply defined as [e]l que, con nimo
de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado[82]
Notice that in the 1870 and 1995 definition of theft in the
penal code of Spain, la libre disposicion of the property is not an
element or a statutory characteristic of the crime. It does appear
that the principle originated and perhaps was fostered in the realm
of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer
form in his 1926 commentaries on the 1870 Codigo Penal de Espaa.
Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The
passage cited in Dio was actually utilized by Viada to answer the
question whether frustrated or consummated theft was committed
[e]l que en el momento mismo de apoderarse de la cosa ajena,
vindose sorprendido, la arroja al suelo.[83] Even as the answer was
as stated in Dio, and was indeed derived from the 1888 decision of
the Supreme Court of Spain, that decisions factual predicate
occasioning the statement was apparently very different from Dio,
for it appears that the 1888 decision involved an accused who was
surprised by the employees of a haberdashery as he was
abstracting a layer of clothing off a mannequin, and who then
proceeded to throw away the garment as he fled.[84]
Nonetheless, Viada does not contest the notion of
frustrated theft, and willingly recites decisions of the Supreme
Court of Spain that have held to that effect. [85] A few decades later,
the esteemed Eugenio Cuello Caln pointed out the inconsistent
application by the Spanish Supreme Court with respect to
frustrated theft.
Hay frustracin cuando los reos fueron
sorprendidos por las guardias cuando llevaban
los sacos de harino del carro que los conducia a
otro que tenan preparado, 22 febrero 1913;
cuando el resultado no tuvo efecto por la
intervencin de la policia situada en el local donde
se realiz la sustraccin que impidi pudieran los
reos disponer de lo sustrado, 30 de octubre 1950.
Hay "por lo menos" frustracin, si existe
apoderamiento, pero el culpale no llega a
disponer de la cosa, 12 abril 1930; hay frustracin
"muy prxima" cuando el culpable es detenido por
el perjudicado acto seguido de cometer la
sustraccin, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustracin cuando,
perseguido el culpable o sorprendido en el
momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11
marzo 1921; esta doctrina no es admissible, stos,
conforme a lo antes expuesto, son hurtos
consumados.[86]
Ultimately, Cuello Caln attacked the very idea that
frustrated theft is actually possible:
La doctrina hoy generalmente
sustentada considera que el hurto se consuma
cuando la cosa queda de hecho a la
disposicin del agente. Con este criterio coincide
la doctrina sentada ltimamente porla
jurisprudencia espaola que generalmente
considera consumado el hurto cuando el culpable
coge o aprehende la cosa y sta quede por tiempo
ms o menos duradero bajo su poder. El hecho de
que ste pueda aprovecharse o no de lo hurtado
es indiferente. El delito no pierde su carcter de
consumado aunque la cosa hurtada sea devuelta
por el culpable o fuere recuperada. No se
concibe la frustracin, pues es muy dificil
que el que hace cuanto es necesario para la
consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara
hurtos frustrados son verdaderos delitos
consumados.[87] (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike
Viada, who was content with replicating the Spanish Supreme Court
decisions on the matter, Cuello Caln actually set forth his own
thought that questioned whether theft could truly be frustrated,
since pues es muy dificil que el que hace cuanto es necesario para
la consumacin delhurto no lo consume efectivamente. Otherwise
put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the
effect of theft.
This divergence of opinion convinces us, at least, that
there is no weighted force in scholarly thought that obliges us to
accept frustrated theft, as proposed in Dio and Flores. A final ruling
by the Court that there is no crime of frustrated theft in this
jurisdiction will not lead to scholastic pariah, for such a submission
is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for
the Court to look at the question from a fresh perspective, as we
are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we ask the
question whether there is a mandate of statute or precedent that
26
must compel us to adopt the Dio and Flores doctrines, the answer
has to be in the negative. If we did so, it would arise not out of
obeisance to an inexorably higher command, but from the exercise
of the function of statutory interpretation that comes as part and
parcel of judicial review, and a function that allows breathing room
for a variety of theorems in competition until one is ultimately
adopted by this Court.
V.
The foremost predicate that guides us as we explore the
matter is that it lies in the province of the legislature, through
statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the sovereign
people, which determines which acts or combination of acts are
criminal in nature. Judicial interpretation of penal laws should be
aligned with what was the evident legislative intent, as expressed
primarily in the language of the law as it defines the crime. It is
Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a
new element of a crime which was unintended by the legislature, or
redefine a crime in a manner that does not hew to the statutory
language. 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 of language, legislative
history and purpose, in order to strictly determine the wrath and
breath of the conduct the law forbids.[89]
With that in mind, a problem clearly emerges with
the Dio/Flores dictum. The ability of the offender to freely dispose
of the property stolen is not a constitutive element of the crime of
theft. It finds no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the mens
rea or actus reus of the felony. To restate what this Court has
repeatedly held: the elements of the crime of theft as provided for
in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) 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 against or
intimidation of persons or force upon things.[90]
Such factor runs immaterial to the statutory definition of
theft, which is the taking, with intent to gain, of personal property
of another without the latters consent. While the Dio/Flores dictum
is considerate to the mindset of the offender, the statutory
definition of theft considers only the perspective of intent to gain
on the part of the offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is
susceptible of commission in the frustrated stage, the question is
again, when is the crime of theft produced? There would be all but
certain unanimity in the position that theft is produced when there
is deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the
product of the felony that the offender, once having committed all
the acts of execution for theft, is able or unable to freely dispose of
the property stolen since the deprivation from the owner alone has
already ensued from such acts of execution. This conclusion is
reflected in Chief Justice Aquinos commentaries, as earlier cited,
that [i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing
was frustrated.[91]
It might be argued, that the ability of the offender to freely
dispose of the property stolen delves into the concept of taking
itself, in that there could be no true taking until the actor obtains
such degree of control over the stolen item. But even if this were
correct, the effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would mean that not all
the acts of execution have not been completed, the taking not
having been accomplished. Perhaps this point could serve as fertile
ground for future discussion, but our concern now is whether there
is indeed a crime of frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover, such issue will
not apply to the facts of this particular case. We are satisfied
beyond reasonable doubt that the taking by the petitioner was
completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable
period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking,
or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no
opportunity to dispose of the same.[92] And long ago, we asserted
in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime
of theft is the taking of the thing to be
appropriated into the physical power of the thief,
which idea is qualified by other conditions, such
as that the taking must be effected animo
lucrandi and without the consent of the owner;
and it will be here noted that the definition does
not require that the taking should be effected
against the will of the owner but merely that it
should be without his consent, a distinction of no
slight importance.[94]
Insofar as we consider the present question, unlawful
taking is most material in this respect. Unlawful taking, which is the
deprivation of ones personal property, is the element which
produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could
only be attempted theft, if at all.
With these considerations, we can only conclude that
under Article 308 of the Revised Penal Code, theft cannot have a
frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail
to consider that once the offenders therein obtained possession
over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of
the offenders to freely dispose of the stolen property does not
negate the fact that the owners have already been deprived of
their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the
rule that the inability of the offender to freely dispose of the stolen
property frustrates the theft would introduce a convenient
defense for the accused which does not reflect any legislated
intent,[95] since the Court would have carved a viable means for
offenders to seek a mitigated penalty under applied circumstances
that do not admit of easy classification. It is difficult to formulate
definite standards as to when a stolen item is susceptible to free
disposal by the thief. Would this depend on the psychological belief
of the offender at the time of the commission of the crime, as
implied in Dio?
Or, more likely, the appreciation of several classes of
factual circumstances such as the size and weight of the property,
the location of the property, the number and identity of people
present at the scene of the crime, the number and identity of
people whom the offender is expected to encounter upon fleeing
with the stolen property, the manner in which the stolen item had
been housed or stored; and quite frankly, a whole lot more. Even
the fungibility or edibility of the stolen item would come into
account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has
been consummated.
All these complications will make us lose sight of the fact
that beneath all the colorful detail, the owner was indeed deprived
of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated
theft were recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the
attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking
has been completed, causing the unlawful deprivation of property,
and ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree,
grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code
provisions on theft have not been designed in such fashion as to
27
accommodate said rulings. Again, there is no language in Article
308 that expressly or impliedly allows that the free disposition of
the items stolen is in any way determinative of whether the crime
of theft has been produced. Dio itself did not rely on Philippine laws
or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal support. These
cases do not enjoy the weight of stare decisis, and even if they did,
their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor from this
Court.
We thus conclude that under the Revised Penal Code,
there is no crime of frustrated theft. As petitioner has latched the
success of his appeal on our acceptance of
the Dioand Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all
these years for us to recognize that there can be no frustrated theft
under the Revised Penal Code does not detract from the
correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated
theft may be recognized. Our deference to Viada yields to the
higher reverence for legislative intent.
FIRST DIVISION
G.R. NO. 190475 : April 10, 2013
JAIME ONG y ONG, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
SERENO, C.J.:
Before the Court is an appeal from the Decision 1 dated 18 August
2009 of the Court of Appeals (CA), which affirmed the
Decision2 dated 06 January 2006 of the Regional Trial Court (RTC),
Branch 37, Manila. The RTC had convicted accused Jaime Ong y
Ong (Ong) of the crime of violation of Presidential Decree No. (P.O.)
1612, otherwise known as. the Anti-Fencing Law.
Ong was charged in an Information3 dated 25 May 1995 as
follows:chanroblesvirtualawlibrary
That on or about February 17, 1995, in the City of Manila,
Philippines. the said accused, with intent of gain for himself or for
another. did then and there willfully, unlawfully and feloniously
receive and acquire from unknown person involving thirteen (13)
truck tires worth P65, 975.00, belonging to FRANCISCO AZAJAR Y
LEE, and thereafter selling One (1) truck tire knowing the same to
have been derived from the crime of robbery.
CONTRARY TO LAW.
Upon arraignment, Ong entered a plea of "not guilty." Trial on the
merits ensued, and the RTC found him guilty beyond reasonable
doubt of violation of P.D. 1612. The dispositive portion of its
Decision reads:chanroblesvirtualawlibrary
WHEREFORE, premises considered, this Court finds that the
prosecution has established the guilt of the accused JAIME ONG y
ONG beyond reasonable doubt for violation of Presidential Decree
No. 1612 also known as Anti-Fencing Law and is hereby sentenced
to suffer the penalty of imprisonment of 10 years and 1 day to 16
years with accessory penalty of temporary disqualification.
SO ORDERED.4chanroblesvirtualawlibrary
Dissatisfied with the judgment, Ong appealed to the CA. After a
review of the records, the RTC's finding of guilt was affirmed by the
appellate court in a Decision dated 18 August 2009.
Ong then filed the instant appeal before this Court.
The Facts
The version of the prosecution, which was supported by the CA, is
as follows:chanroblesvirtualawlibrary
Private complainant was the owner of forty-four (44) Firestone truck
tires, described as T494 1100 by 20 by 14. He acquired the same
for the total amount of P223,401.81 from Philtread Tire and Rubber
Corporation, a domestic corporation engaged in the manufacturing
and marketing of Firestone tires. Private complainant's acquisition
was evidenced by Sales Invoice No. 4565 dated November 10, 1994
and an Inventory List acknowledging receipt of the tires specifically
described by their serial numbers. Private complainant marked the
tires using a piece of chalk before storing them inside the
warehouse in 720 San Jose St., corner Sta. Catalina St., Barangay
San Antonio Valley 1, Sucat, Paraaque, owned by his relative
Teody Guano. Jose Cabal, Guano's caretaker of the warehouse, was
in charge of the tires. After appellant sold six (6) tires sometime in
January 1995, thirty-eight (38) tires remained inside the warehouse.
On February 17, 1995, private complainant learned from caretaker
Jose Cabal that all thirty-eight (38) truck tires were stolen from the
warehouse, the gate of which was forcibly opened. Private
complainant, together with caretaker Cabal, reported the robbery
to the Southern Police District at Fort Bonifacio.
Pending the police investigation, private complainant canvassed
from numerous business establishments in an attempt to locate the
stolen tires. On February 24, 1995, private complainant chanced
upon Jong's Marketing, a store selling tires in Paco, Manila, owned
and operated by appellant. Private complainant inquired if
appellant was selling any Model T494 1100 by 20 by 14 ply
Firestone tires, to which the latter replied in the affirmative.
Appellant brought out a tire fitting the description, which private
complainant recognized as one of the tires stolen from his
warehouse, based on the chalk marking and the serial number
thereon. Private complainant asked appellant if he had any more of
such tires in stock, which was again answered in the affirmative.
Private complainant then left the store and reported the matter to
Chief Inspector Mariano Fegarido of the Southern Police District.
On February 27, 1995, the Southern Police District formed a team
to conduct a buy-bust operation on appellant's store in Paco,
Manila. The team was composed of six (6) members, led by SPO3
Oscar Guerrero and supervised by Senior Inspector Noel Tan.
Private complainant's companion Tito Atienza was appointed as the
poseur-buyer.
On that same day of February 27, 1995, the buy-bust team, in
coordination with the Western Police District, proceeded to
appellant's store in Paco, Manila. The team arrived thereat at
around 3:00 in the afternoon. Poseur-buyer Tito Atienza proceeded
to the store while the rest of the team posted themselves across
the street. Atienza asked appellant if he had any T494 1100 by 20
by 14 Firestone truck tires available. The latter immediately
produced one tire from his display, which Atienza bought
for P5,000.00. Atienza asked appellant if he had any more in stock.
Appellant then instructed his helpers to bring out twelve (12) more
tires from his warehouse, which was located beside his store. After
the twelve (12) truck tires were brought in, private complainant
entered the store, inspected them and found that they were the
same tires which were stolen from him, based on their serial
numbers. Private complainant then gave the prearranged signal to
the buy-bust team confirming that the tires in appellant's shop
were the same tires stolen from the warehouse.
After seeing private complainant give the pre-arranged signal, the
buy-bust team went inside appellant's store. However, appellant
insisted that his arrest and the confiscation of the stolen truck tires
be witnessed by representatives from the barangay and his own
lawyer. Resultantly, it was already past 10:00 in the evening when
appellant, together with the tires, was brought to the police station
for investigation and inventory. Overall, the buy-bust team was able
to confiscate thirteen (13) tires, including the one initially bought
by poseur-buyer Tito Atienza. The tires were confirmed by private
complainant as stolen from his
warehouse.5chanroblesvirtualawlibrary
For his part, accused Ong solely testified in his defense, alleging
that he had been engaged in the business of buying and selling
tires for twenty-four (24) years and denying that he had any
knowledge that he was selling stolen tires in Jong Marketing. He
further averred that on 18 February 1995, a certain Ramon Go (Go)
offered to sell thirteen (13) Firestone truck tires allegedly from
Dagat-dagatan, Caloocan City, for P3,500 each. Ong bought all the
tires for P45,500, for which he was issued a Sales Invoice dated 18
February 1995 and with the letterhead Gold Link Hardware &
General Merchandise (Gold Link).6chanroblesvirtualawlibrary
Ong displayed one (1) of the tires in his store and kept all the
twelve (12) others in his bodega. The poseur-buyer bought the
displayed tire in his store and came back to ask for more tires. Ten
minutes later, policemen went inside the store, confiscated the
tires, arrested Ong and told him that those items were stolen
tires.7chanroblesvirtualawlibrary
The RTC found that the prosecution had sufficiently established that
all thirteen (13) tires found in the possession of Ong constituted a
prima facie evidence of fencing. Having failed to overcome the
presumption by mere denials, he was found guilty beyond
reasonable doubt of violation of P.D.
1612.8chanroblesvirtualawlibrary
On appeal, the CA affirmed the RTC's findings with modification by
reducing the minimum penalty from ten (10) years and one (1) day
to six (6) years of prision correcional.9chanroblesvirtualawlibrary
OUR RULING
The Petition has no merit.
Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any
person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or
28
anything of value which he knows, or should be known to him, to
have been derived from the proceeds of the crime of robbery or
theft."
The essential elements of the crime of fencing are as follows: (1) a
crime of robbery or theft has been committed; (2) the accused, who
is not a principal or on accomplice in the commission of the crime
of robbery or theft, buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner
deals in any article, item, object or anything of value, which has
been derived from the proceeds of the crime of robbery or theft; (3)
the accused knew or should have known that the said article, item,
object or anything of value has been derived from the proceeds of
the crime of robbery or theft; and (4) there is, on the part of one
accused, intent to gain for oneself or for
another.10chanroblesvirtualawlibrary
We agree with the RTC and the CA that the prosecution has met the
requisite quantum of evidence in proving that all the elements of
fencing are present in this case.
First, the owner of the tires, private complainant Francisco Azajar
(Azajar), whose testimony was corroborated by Jose Cabal - the
caretaker of the warehouse where the thirty-eight (38) tires were
stolen testified that the crime of robbery had been committed on
17 February 1995. Azajar was able to prove ownership of the tires
through Sales Invoice No. 456511 dated 10 November 1994 and an
Inventory List.12 Witnesses for the prosecution likewise testified that
robbery was reported as evidenced by their Sinumpaang
Salaysay13 taken at the Southern Police District at Fort
Bonifacio.14The report led to the conduct of a buy-bust operation at
Jong Markerting, Paco, Manila on 27 February 1995.
Second, although there was no evidence to link Ong as the
perpetrator of the robbery, he never denied the fact that thirteen
(13) tires of Azajar were caught in his possession. The facts do not
establish that Ong was neither a principal nor an accomplice in the
crime of robbery, but thirteen (13) out of thirty-eight (38) missing
tires were found in his possession. This Court finds that the serial
numbers of stolen tires corresponds to those found in Ong's
possession.15 Ong likewise admitted that he bought the said tires
from Go of Gold Link in the total amount of ?45,500 where he was
issued Sales Invoice No. 980.16chanroblesvirtualawlibrary
Third, the accused knew or should have known that the said article,
item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft. The words "should know"
denote the fact that a person of reasonable prudence and
intelligence would ascertain the fact in performance of his duty to
another or would govern his conduct upon assumption that such
fact exists.17 Ong, who was in the business of buy and sell of tires
for the past twenty-four (24) years,18ought to have known the
ordinary course of business in purchasing from an unknown seller.
Admittedly, Go approached Ong and offered to sell the thirteen (13)
tires and he did not even ask for proof of ownership of the
tires.19 The entire transaction, from the proposal to buy until the
delivery of tires happened in just one day. 20 His experience from the
business should have given him doubt as to the legitimate
ownership of the tires considering that it was his first time to
transact with Go and the manner it was sold is as if Go was just
peddling the thirteen (13) tires in the streets.
In Dela Torre v. COMELEC,21 this Court had enunciated
that:chanroblesvirtualawlibrary
Circumstances normally exist to forewarn, for instance, a
reasonably vigilant buyer that the object of the sale may have been
derived from the proceeds of robbery or theft. Such circumstances
include the time and place of the sale, both of which may not be in
accord with the usual practices of commerce. The nature and
condition of the goods sold, and the fact that the seller is not
regularly engaged in the business of selling goods may likewise
suggest the illegality of their source, and therefore should caution
the buyer. This justifies the presumption found in Section 5 of P.D.
No. 1612 that "mere possession of any goods, . . ., object or
anything of value which has been the subject of robbery or thievery
shall be prima facie evidence of fencing" a presumption that is,
according to the Court, "reasonable for no other natural or logical
inference can arise from the established fact of . . . possession of
the proceeds of the crime of robbery or theft."
xxx.22chanroblesvirtualawlibrary
Moreover, Ong knew the requirement of the law in selling second
hand tires. Section 6 of P.D. 1612 requires stores, establishments or
entities dealing in the buying and selling of any good, article, item,
object or anything else of value obtained from an unlicensed dealer
or supplier thereof to secure the necessary clearance or permit
from the station commander of the Integrated National Police in the
town or city where that store, establishment or entity is located
before offering the item for sale to the public. In fact, Ong has
practiced the procedure of obtaining clearances from the police
station for some used tires he wanted to resell but, in this particular
transaction, he was remiss in his duty as a diligent businessman
who should have exercised prudence.
In his defense, Ong argued that he relied on the receipt issued to
him by Go. Logically, and for all practical purposes, the issuance of
a sales invoice or receipt is proof of a legitimate transaction and
may be raised as a defense in the charge of fencing; however, that
defense is disputable.23 In this case, the validity of the issuance of
the receipt was disputed, and the prosecution was able to prove
that Gold Link and its address were fictitious. 24 Ong failed to
overcome the evidence presented by the prosecution and to prove
the legitimacy of the transaction. Thus, he was unable to rebut the
prima facie presumption under Section 5 of P.D. 1612.
Finally, there was evident intent to gain for himself, considering
that during the buy-bust operation, Ong was actually caught selling
the stolen tires in his store, Jong Marketing.
Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie
presumption of fencing from evidence of possession by the accused
of any good, article, item, object or anything of value, which has
been the subject of robbery or theft; and prescribes a higher
penalty based on the value of the 25 property.
The RTC and the CA correctly computed the imposable penalty
based on P5,075 for each tire recovered, or in the total amount
of P65,975. Records show that Azajar had purchased forty-four (44)
tires from Philtread in the total amount of P223,40 1.81.26 Section 3
(p) of Rule 131 of the Revised Rules of Court provides a disputable
presumption that private transactions have been fair and regular.
Thus, the presumption of regularity in the ordinary course of
business is not overturned in the absence of the evidence
challenging the regularity of the transaction between Azajar ,and
Phil tread.
In tine, after a careful perusal of the records and the evidence
adduced by the parties, we do not find sufficient basis to reverse
the ruling of the CA affirming the trial court's conviction of Ong for
violation of P.D. 1612 and modifying the minimum penalty imposed
by reducing it to six ( 6) years of prision correccional.
WHEREFORE, premises considered, the Petition is DENIED for lack
of merit. Accordingly, the assailed Decision of the Court of Appeals
in CA-G.R. CR No. 30213 is hereby AFFIRMED.
ERNESTO FRANCISCO y SPENOCILLA, petitioner, vs. PEOPLE
OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is an appeal via a petition for review on certiorari of the
Decision[1] of the Court of Appeals in CA-G.R. CR No. 19110
affirming the Decision[2] of the Regional Trial Court of Malolos,
Bulacan, Branch 22, finding petitioner Ernesto Francisco guilty of
violating Presidential Decree No. 1612, otherwise known as the
Anti-Fencing Law, sentencing him to suffer the penalty of ten (10)
years and one (1) day of prision mayor maximum, as minimum, to
twenty (20) years of reclusion temporal maximum, as maximum,
with the accessory penalties corresponding to the latter, and to pay
the corresponding value of the subject pieces of jewelry.
The Indictment
The petitioner was charged of violating P.D. No. 1612 under
the Information filed on June 23, 1993, the accusatory portion of
which reads:
That in or about the month of November 1991, in the municipality
of Meycauayan, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Ernesto
Francisco y Spenocilla, with intent to gain for himself, did then and
there wil[l]fully, unlawfully and feloniously buy, receive, possess
and acquire from one Pacita Linghon y Liza, not the owner, several
pieces of jewelry, to wit:
One (1) pair of earrings (Heart Shape) --- P 400,000.00
One (1) White Gold Bracelet ---- 150,000.00
One (1) Diamond Ring ---- 100,000.00
One (1) Ring with Diamond ---- 5,000.00
with the total value of P655,000.00, belonging to Jovita Rodriguez y
Cruz, which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft.
Contrary to law.[3]
The petitioner was arraigned, with the assistance of counsel,
and entered a plea of not guilty. Trial forthwith ensued.
The Case for the Prosecution
Jovita Rodriguez was a resident of Barangay Manggahan,
Rodriguez, Rizal.[4] She was engaged in business as a general
contractor under the business name J.C. Rodriguez
Contractors. Macario Linghon was one of her workers. She and her
29
husband, the former Municipal Mayor of Rodriguez, Rizal, acquired
several pieces of jewelry which were placed inside a locked cabinet
in a locked room in their main house. Jovita hid the key to the
cabinet inside the room. The couple and their son resided inside a
compound. They hired Pacita Linghon, Macarios sister, as one of
their household helpers us sometime in February 1989.[5] Pacita
swept and cleaned the room periodically. Sometime in May 1991,
she left the employ of the Rodriguez family.
Sometime in the third week of October 1991, Pacita contacted
her brother Macario, who resided in Sitio Baloongan, Barangay
Paltok, Meycauayan, Bulacan,[6] and asked him to sell some pieces
of jewelry. She told Macario that a friend of hers owned the jewelry.
[7]
Macario agreed. He then went to the shop of petitioner Ernesto
Erning Francisco located at Pacheco Street, Calvario, Meycauayan,
Bulacan,[8] which had a poster outside that said, We buy gold.
Macario entered the shop, while Pacita stayed outside. Macario
offered to sell to Ernesto two rings and one bracelet. Ernesto
agreed to buy the jewelry for P25,000, and paid the amount to
Macario. He also gave Macario P300 as a tip.[9]
Sometime in November 1991,[10] Pacita asked Macario anew to
sell a pair of earrings. He agreed. He and a friend of his went to the
shop of Ernesto and offered to sell to Ernesto the pair of earrings
for P18,000. The latter agreed and paid Macario the
amount. Ernesto gave a P200 tip to Macario. After these
transactions, Macario saw the petitioner in his shop for about five to
six more times and received some amounts.[11]
Sometime in November 1991, Jovita was asked to be a
principal sponsor at a wedding. She was shocked when she opened
the locked cabinet containing her jewelry, and found that the box
was empty. She noticed that the lock to the cabinet was not
broken. Among the pieces of jewelry missing were one pair of
diamond heart-shaped earrings worth P400,000; one heart-shaped
diamond ring worth P100,000; one white gold bracelet with
diamond stones worth P150,000; and one ring with a small
diamond stone worth P5,000. She suspected that it was Pacita who
stole her jewelry. She was, however, occupied with her business
ventures that she had little time to gather evidence and charge
Pacita.
On August 19, 1992, Jovita filed a complaint for theft against
Pacita and her mother Adoracion Linghon with the Counter-
Intelligence Group of the Philippine National Police in Camp Crame,
Quezon City. She stated that she owned several jewels, viz: one (1)
heart-shaped pair of earrings with diamond worth P400,000; one
(1) heart-shaped ring with diamond worth P100,000; one (1) white
gold bracelet with diamond stones worth P150,000; and, one (1)
ring with a small diamond stone worth P5,000. She also averred
that Pacita had stolen the pieces of jewelry, and that she and her
mother Adoracion disposed of the same.
A team of police investigators, including PO1 Santiago Roldan,
Jr. of the Counter-Intelligence Group, invited Pacita and Adoracion to
Camp Crame, Quezon City, for investigation in connection with
Jovitas complaint. Pacita arrived in Camp Crame without counsel
and gave a sworn statement pointing to the petitioner as the
person to whom she sold Jovitas jewelry. On August 23, 1992,
Pacita gave a sworn statement to PO1 Roldan, Jr., admitting that
she sold one pair of heart-shaped earrings with diamond, one white
gold bracelet, one heart-shaped diamond ring, and one ring with
big and small stones to Mang Erning of Meycauayan, Bulacan, for
the total price of P50,000 to cover the cost of her fathers operation
and for food. When asked about the full name of the person to
whom the jewelry was sold, Pacita replied that she knew him only
as Mang Erning.
Pacita accompanied a group of five police officers, which
included SPO1 Dremio Peralta and PO1 Roldan, Jr. to the shop in
Meycauayan, Bulacan. Pacita pointed to the petitioner as the Mang
Erning who had purchased the jewelry from her. The policemen
alighted from their vehicle and invited the petitioner for questioning
in Camp Crame. Upon his insistence, the petitioner was brought to
the police station of Meycauayan, Bulacan. When they were at the
police station, the petitioner, in the presence of SPO4 Valdez,
offered an amount of P5,000 to the policemen as a bribe, for them
not to implicate him in the case. PO1 Roldan, Jr. rejected the offer.
[12]
They again invited the petitioner to go with them to Camp
Crame, but the petitioner refused and demanded that the
policemen first secure a warrant for his arrest should they insist on
taking him with them.[13]
Nevertheless, Pacita was charged with qualified theft in the
Regional Trial Court of San Mateo, Rizal, Branch 76. [14] The case was
docketed as Criminal Case No. 2005. Adoracion was also charged
with violating P.D. No. 1612 (Anti-Fencing Law), docketed as
Criminal Case No. 1992. The cases were consolidated and jointly
tried.
Meanwhile, Jovita succeeded in convincing Macario to testify
against the petitioner, assuring him that he would not be
prosecuted for violation of P.D. No. 1612. Macario agreed to testify
against the petitioner.
PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on
their investigation.
On September 1, 1992, Jovita executed a sworn statement in
the office of the police station of Meycauayan, Bulacan, charging
the petitioner of buying stolen jewelry worth P655,000.[15]A criminal
complaint against the petitioner for violation of P.D. No. 1612 was
filed in the Municipal Trial Court of Meycauayan, Bulacan, docketed
as Criminal Case No. 92-13841. During the preliminary
investigation, Pacita and Macario testified that they sold a set of
earrings, bracelet and two rings to the petitioner for P50,000 at his
shop in Meycauayan, Bulacan. According to Pacita, she found the
jewelry belonging to Jovita while she was cleaning the room in the
house, and that she brought the jewelry home. [16] The court found
probable cause against the petitioner, and issued a warrant for his
arrest.
On June 23, 1993, an Information was filed by the Provincial
Prosecutor with the RTC charging the petitioner with violating P.D.
No. 1612.
In the meantime, on August 20, 1993, judgment was rendered
by the RTC of San Mateo, Rizal, Branch 76, in Criminal Cases Nos.
1992 and 2005, finding Pacita guilty of theft and Adoracion guilty of
fencing under P.D. No. 1612, beyond reasonable doubt. The
decretal portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in
these cases, as follows:
1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza
GUILTY beyond reasonable doubt of the crime of theft, as defined
and penalized under Art. 308 in relation to Art. 309 of the Revised
Penal Code, and sentencing her to suffer the indeterminate
sentence of Nine (9) years and Four (4) months of prision mayor as
minimum to Eighteen (18) years, Two (2) months and Twenty (20)
days of reclusion temporal as maximum, to return to complainant
Jovita Rodriguez the unrecovered stolen pieces of jewelry subject of
this case and if restitution is not possible, to indemnify the said
complainant in the amount of P1,300,000.00; and to pay the costs.
2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza
GUILTY beyond reasonable doubt of the offense of violation of PD
1612, otherwise known as the Anti-Fencing Law, and sentencing
her to suffer imprisonment of Twelve (12) years of prision mayor; to
indemnify complainant Jovita Rodriguez in the amount
of P45,000.00; and to pay the costs.
SO ORDERED.[17]
The Case for the Petitioner
The petitioner testified that he was a resident of Calvario,
Meycauayan, Bulacan. He had a shop located at Pacheco Street,
Calvario, Meycauayan, Bulacan, where he bought and sold
jewelry. He had been in this business since 1980. [18] He did not
transact with Pacita regarding Jovitas missing jewels. [19] In fact, he
did not even know Jovita and met her only during the preliminary
investigation of the case before the MTC of Meycauayan,
Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed
that he first saw her when she accompanied some policemen in
civilian clothes to his shop, where he was thereafter invited to
Camp Crame for investigation.[20] He saw Pacita again only during
the preliminary investigation of the case. [21]The petitioner also
averred that he had no transaction with Macario of whatever
nature.[22]
The petitioner further testified that when the policemen in
civilian clothes approached him in his shop, they asked who Mang
Erning was, as the sign in his shop carried such name.When he
responded to the question, the policemen identified themselves as
members of the police force. The petitioner then gave them his full
name.[23] When the policemen invited him for questioning, he
refused at first. Eventually, he agreed to be interrogated at the
municipal hall, where the policemen insisted on bringing him to
Camp Crame. He told them that he would go with them only if they
had a warrant of arrest.[24] He denied ever offering any bribe to the
policemen.[25]
On November 29, 1995, the court rendered judgment finding
the petitioner guilty beyond reasonable doubt of violating P.D. No.
1612. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered
as follows:
1. Finding the accused GUILTY beyond reasonable doubt of the
violation of Pres. Decree No. 1612 (Anti-Fencing Law) and is hereby
30
sentenced to suffer the penalty of 10 years and 1 day of prision
mayormaximum, as minimum, to 20 years of reclusion
temporal maximum, as maximum, with the accessory penalties
corresponding to the latter.
2. Ordering the accused to pay to private complainant Jovita
Rodriguez the corresponding value of the subject items of jewelries
(sic):
one (1) pair of earrings, heart shaped P400,000.00
one (1) white gold bracelet 150,000.00
one (1) diamond ring 100,000.00
one (1) ring with diamond 5,000.00
TOTAL VALUE P655,000.00
with 6% interest on all amounts due from the filing of the
information on June 23, 1993 until said amounts have been fully
paid.
SO ORDERED.[26]
The petitioner appealed the decision to the Court of Appeals
contending that:
I
THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY
OF PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.
II
THE LOWER COURT ERRED IN NOT FINDING THAT THE
PROSECUTION EVIDENCE WAS NOT SUFFICIENT TO CONVICT THE
ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.
III
THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING
TESTIMONY (sic) OF PROSECUTION WITNESSES.
IV
THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A
PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-
APPELLANTS OFFER OF BRIBE WITHOUT SHOW OF MONEY.
V
THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-
APPELLANT.[27]
On December 29, 2000, the CA rendered judgment affirming
the decision of the RTC.[28]
The Present Petition
In the present recourse, petitioner Ernesto Francisco asserts
that:
The Court of Appeals erred in sustaining the trial courts decision
finding petitioner guilty beyond reasonable doubt of violation of the
(sic) Presidential Decree No. 1612, otherwise known as the Anti-
Fencing Law.
The Court of Appeals erred in relying on the conflicting testimonies
of prosecution witnesses, all of which consisted of hearsay
evidence.[29]
The petitioner asserts that the prosecution failed to prove his
guilt for the crime charged beyond reasonable doubt. He avers that
the prosecution failed to prove that Pacita stole the jewelry subject
of the charge, and that Macario sold the said pieces of jewelry to
him. He, likewise, posits that the prosecution failed to present
Pacita as its witness to prove that she stole the pieces of jewelry
and sold the same to him, and to adduce in evidence the jewelry
allegedly sold to him. He contends that the testimonies of Macario
and PO1 Roldan, Jr., on his investigation of Jovitas complaint for
theft, are hearsay evidence. The appellant argues that assuming
that Macario sold the subject jewelry to him, Macario had no
personal knowledge that the same belonged to Jovita. The
petitioner avers that the testimony of Macario, the principal witness
of the prosecution, is inconsistent on substantial matters; hence,
should not be given credence and probative weight.
On the other hand, the Office of the Solicitor General (OSG)
maintains that the prosecution was able to prove all the elements
of the crime charged. It asserts that the first element was proved
through Pacitas conviction for theft in Criminal Case No. 2005; the
second element was shown to exist with moral certainty via the
testimony of Macario identifying the petitioner as the one who
bought the subject pieces of jewelry, corroborated by the testimony
of PO1 Roldan, Jr.; and, the third element was proven by evidence
showing that the petitioner had been in the business of buying and
selling jewelry for a long period of time, and that he had the
expertise to know the correct market price of the jewelry he
purchased from Macario and Pacita. The OSG asserts that the
petitioner must have been put on his guard when the subject
pieces of jewelry worth P655,000 were sold to him for only P50,000.
[30]
It contends that the inconsistencies in the testimonies of the
prosecution witnesses referred to by the petitioner were minor, and
could not be made as a basis to disregard the trial courts findings
of facts, which are entitled to great respect and credit.[31]
The Ruling of the Court
 The petition is meritorious.
The essential elements of the crime of fencing are as follows:
(1) a crime of robbery or theft has been committed; (2) the
accused, who is not a principal or accomplice in the commission of
the crime of robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells, or in any
manner deals in any article, item, object or anything of value,
which has been derived from the proceeds of the crime of robbery
or theft; (3) the accused knew or should have shown that the said
article, item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft; and, (4) there is, on the
part of the accused, intent to gain for himself or for another.
[32]
Fencing is malum prohibitum, and P.D. No. 1612 creates a prima
facie presumption of fencing from evidence of possession by the
accused of any good, article, item, object or anything of value
which has been the subject of robbery or theft, and prescribes a
higher penalty based on the value of the property. [33] The stolen
property subject of the charge is not indispensable to prove
fencing. It is merely corroborative of the testimonies and other
evidence adduced by the prosecution to prove the crime of fencing.
We agree with the trial and appellate courts that the
prosecution mustered the requisite quantum of evidence, on the
basis of the testimony of Jovita, that Pacita stole the subject jewelry
from the locked cabinet in the main house of her then
employer. Jovita testified on her ownership of the jewelry and the
loss thereof, and narrated that Pacita had access to the cabinet
containing the pieces of jewelry.
We, however, agree with the petitioner that the decision of
the RTC of Rizal, Branch 76, in Criminal Case No. 2005 convicting
Pacita of theft does not constitute proof against him in this case,
that Pacita had, indeed, stolen the jewelry. There is no showing that
the said decision in Criminal Case No. 2005 was already final and
executory when the trial court rendered its decision in the instant
case.
On the second element of the crime, the trial and appellate
courts held that the prosecution proved the same beyond
reasonable doubt based on the testimony of Jovita during the trial
in Criminal Cases Nos. 1992 and 2005; that Pacita had confessed to
Jovita that she sold some of the jewelry to the petitioner; the joint
affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation
of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating
to said investigation; the RTC decision in Criminal Cases Nos. 1992
and 2005; the testimonies of Pacita and her brother Macario during
the preliminary investigation of Criminal Case No. 92-13841 before
the MTC of Meycauayan as shown by the transcripts of the
stenographic notes taken during the proceedings; the supplemental
sworn statement of Pacita on August 23, 1992 in Camp Crame,
Quezon City, and, the testimony of Macario before the trial court.
However, we find and so hold that
First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005,
that Pacita had confessed to her that she had sold four pieces of
jewelry to the petitioner, is inadmissible in evidence against the
latter to prove the truth of the said admission. It bears stressing
that the petitioner was not a party in the said criminal cases. The
well-entrenched rule is that only parties to a case are bound by a
judgment of the trial court. Strangers to a case are not bound by
the judgment of said case.[34] Jovita did not reiterate her testimony
in the said criminal cases during the trial in the court a quo. The
prosecution did not present Pacita as witness therein to testify on
the admission she purportedly made to Jovita; hence, the petitioner
was not able to cross-examine Pacita. The rule is that the acts or
declarations of a person are not admissible in evidence against a
third party.[35]
Second. The testimony of Pacita during the preliminary
investigation in Criminal Case No. 92-13841, as well as her
supplemental affidavit, is, likewise, inadmissible against the
petitioner since Pacita did not testify in the court a quo. The
petitioner was, thus, deprived of his constitutional right to confront
and cross-examine a witness against him.
Third. The testimony of PO1 Roldan, Jr., that on August 23,
1992, Pacita pointed to the petitioner, while the latter was having a
drinking spree, as the person who bought the subject jewelry from
her, is indeed admissible in evidence against the petitioner. It is,
likewise, corroborative of the testimony of Macario. However, such
testimony is admissible only to prove such fact - that Pacita pointed
to the petitioner as the person to whom she sold the subject
jewelry; it is inadmissible to prove the truth of Pacitas declaration
to the policemen, that the petitioner was the one who purchased
the jewelry from her. It must be stressed that the policemen had no
personal knowledge of the said sale, and, more importantly, Pacita
did not testify in the court a quo. Indeed, the petitioner was
31
deprived of his right to cross-examine Pacita on the truth of what
she told the policemen.
Fourth. On the other hand, the testimony of Macario during
the preliminary investigation of Criminal Case No. 92-13841 is
admissible in evidence against the petitioner since he testified for
the prosecution and was cross-examined on his testimony during
the preliminary investigation.
In fine, the only evidence of the prosecution to prove that the
petitioner purchased the jewelry from Macario and Pacita are the
following: the testimony and affidavit of PO1 Roldan, Jr.; and, the
testimony of Macario during the preliminary investigation and trial
in the court a quo.
Although the well-entrenched rule is that the testimony of a
single witness is sufficient on which to anchor a judgment of
conviction, it is required that such testimony must be credible and
reliable.[36] In this case, we find the testimony of Macario to be
dubious; hence, barren of probative weight.
Macario admitted when he testified in the court a quo that his
testimony during the preliminary investigation in Criminal Case No.
92-13841 and his testimony in the court a quo were
inconsistent. He even admitted that some portions of his testimony
on direct examination in the court a quo were inconsistent with his
testimony on cross-examination and on re-direct
examination. These admissions are buttressed by the records of the
case, which show that such inconsistencies pertained to material
points and not merely to minor matters. Thus, during the
preliminary investigation in Criminal Case No. 92-13841, Macario
admitted that on October 10, 1991, he and his sister Pacita sold
two rings and one bracelet to the petitioner for P25,000, while in
November 1991, he and Pacita sold a pair of earrings to the
petitioner for P25,000. On direct examination in the court a quo,
Macario testified that he and Pacita sold the earrings to the
petitioner in May 1992, not in November 1991, and only
for P18,000. On cross-examination, Macario testified that he and his
sister Pacita went to the petitioners shop in Meycauayan, Bulacan
and sold the subject jewelry on both occasions. On further cross-
examination, Macario changed his testimony anew, and declared
that he sold the jewelry to the petitioner for P18,000 and
not P25,000; only to change his testimony again, and declare that
he sold the jewelry for P25,000. However, Macario testified during
the preliminary investigation in Criminal Case No. 92-13841 that
when he transacted with the petitioner for the second time, he was
with a friend, and not with his sister Pacita. On redirect
examination, Macario declared that in October 1991, he and Pacita
sold four (4) pieces of jewelry, namely, two rings, one bracelet and
a pair of earrings, contrary to his testimony on direct examination.
He also testified that he and his sister sold the earrings in
November 1991. Because of the contradicting accounts made by
Macario, the court made the following observations:
Court
q According to you, you were nalilito but you gave the
correct answer, you are not nalilito here but you
gave the wrong answer. Bakit ganoon, sabi mo
nalilito ka roon (sic) pero ang sagot mo pala
tama.Dito hindi ka naman nalilito, bakit mali. Bakit
ka nalilito eh tama iyong P25,000.00. Hindi ka
nalilito, mali ang sabi mo.
a Because I am scare[d] here thats why I gave the wrong
answer.
q You better think about it.
a I was confused, Sir.[37]
The testimonies of Macario are even contrary to the
averments of the Information, that the petitioner received the said
jewelry from Pacita.
Assuming, for the nonce, that the petitioner purchased the
said jewelry from Macario, there is no evidence on record that the
petitioner knew that they were stolen. Significantly, even Macario
did not know that the jewelry was stolen. He testified that his sister
Pacita told him before he sold the jewelry to the petitioner that they
belonged to a friend of hers.
Atty. Lerio
Q At that time you and your sister sold those jewels to
Mang Erning did do you know already [that] it was
Mrs. Rodriguez who is the owner of those jewels?
A No, Sir, I do not know.
Q And who do you know was the owner of that jewels
and that time you and your sister sold those jewels
to Mang Erning?
A According to my sister, it is (sic) owned by a friend of
hers.
Court
 Q How did you come to know of this Mang Erning?
A Only at that time when we brought the jewels.
Q But previous to that, do you know him?
A No.[38]
Macario learned, after the case against Pacita had already
been filed in the trial court, that the jewelry was, after all, owned by
Jovita. However, he failed to inform the petitioner that the said
jewelry was stolen. Following is the testimony of Macario:
Atty. Lerio
Q When you learned that those jewels were owned by
Mrs. Rodriguez, did you, if at all, informed (sic)
Mang Erning about it?
Court
Q No basis, when did you come to know that the jewels
belong to Mrs. Rodriguez?
A In 1992, when my sister already had a case.
Q What did you do when you come (sic) to know about
that?
A I was not able to do anything but just to help my sister
with her case and also to help the case of Mrs.
Rodriguez.
Atty. Lerio
Q After that, after knowing that these jewels are (sic)
owned by Mrs. Rodriguez, was there any occasion
where you (sic) able to inform Mang Erning that
those jewels were owned by Mrs. Rodriguez?
A No more, I have no more time.[39]
The prosecution cannot even validly argue that the petitioner
should have known which pieces of jewelry were stolen, considering
that Macario was selling the same for P50,000 when the said pieces
stolen from Jovita were alleged to be worth P655,000. This is so
because the prosecution failed to adduce sufficient competent
evidence to prove the value of the said stolen articles. The
prosecution relied solely on the bare and uncorroborated testimony
of Jovita, that they were worth P655,000:
Atty. Lerio
Q Now, will you tell this Court some of those jewels
which you own?
A I own several jewels and the one (sic) in question are:
1-pair of earrings, diamond heart-
shaped P400,000.00; 1-ring, heart-shaped diamond
worth P100,000.00; 1-bracelet, white gold full of
stones, diamond worth P150,000.00; 1-diamond
ring with small stones worth P5,000.00. So, all in
all, the jewelry is (sic) worth P665,000.00.[40]
When asked by the trial court to declare the present market
value of the stolen jewelry, Jovita merely declared:
Atty. Lerio
Q Now again, when did you acquire those jewels if you
can still remember?
A I remember several years ago when my husband is
(sic) alive.
Court
Q Please tell the court, [is] the market value of the
jewels the same today?
A No, that is (sic) the market value several years ago.
Q So, can you explain [if] the market value, more or less,
[is] the same today?
A No. The price, if we will appraise now, is much bigger.
[41]
When required by the petitioner, through counsel, to bring to
the court any receipts reflecting the price of the pieces of jewelry to
show that she purchased the same, Jovita answered that she had
no such receipts. Thus:
Court
Q You bought it from [a] private person?
A Yes, Your Honor.
Atty. Bernal
Q What then is your proof that you bought these
jewelries (sic) from a private person?
Atty. Lerio
That was already answered, Your Honor. She said, no
receipt.[42]
In People v. Paraiso,[43] we cited our ruling in People v.
Marcos[44] that an ordinary witness cannot establish the value of
jewelry, nor may the courts take judicial notice of the value of the
same:
[A]nd as we have ruled in the case of People vs. Antonio Marcos, an
ordinary witness cannot establish the value of jewelry and the trial
court can only take judicial notice of the value of goods which are
matters of public knowledge or are capable of unquestionable
32
demonstration. The value of jewelry is not a matter of public
knowledge nor is it capable of unquestionable demonstration and in
the absence of receipts or any other competent evidence besides
the self-serving valuation made by the prosecution, we cannot
award the reparation for the stolen jewelry.[45]
It bears stressing that, in the absence of direct evidence that
the accused had knowledge that the jewelry was stolen, the
prosecution is burdened to prove facts and circumstances from
which it can be concluded that the accused should have known that
the property sold to him were stolen. This requirement serves two
basic purposes: (a) to prove one of the elements of the crime of
fencing; and, (b) to enable the trial court to determine the
imposable penalty for the crime, since the penalty depends on the
value of the property; otherwise, the court will fix the value of the
property at P5.00, conformably to our ruling in People v. Dator:[46]
In the absence of a conclusive or definite proof relative to their
value, this Court fixed the value of the bag and its contents
at P100.00 based on the attendant circumstances of the case. More
pertinently, in the case of People vs. Reyes, this Court held that if
there is no available evidence to prove the value of the stolen
property or that the prosecution failed to prove it, the
corresponding penalty to be imposed on the accused-appellant
should be the minimum penalty corresponding to theft involving
the value of P5.00.[47]
IN VIEW OF ALL THE FOREGOING, the petition is
GRANTED. The Decision of the Court of Appeals in CA-G.R. CR No.
19110 affirming the Decision of the Regional Trial Court of Malolos,
Bulacan, Branch 22, is REVERSED and SET ASIDE. The petitioner is
ACQUITTED of the crime of violating P.D. No. 1612 for the
prosecutions failure to prove his guilt beyond reasonable doubt.
RAMON C. TAN, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
PARDO, J.:
The case before the Court is an appeal via certiorari from a
decision of the Court of Appeals * affirming that of the Regional Trial
Court of Manila, Branch 19,** convicting petitioner of the crime of
fencing.
Complainant Rosita Lim is the proprietor of Bueno Metal
Industries, located at 301 Jose Abad Santos St., Tondo, Manila,
engaged in the business of manufacturing propellers or spare parts
for boats. Manuelito Mendez was one of the employees working for
her. Sometime in February 1991, Manuelito Mendez left the employ
of the company. Complainant Lim noticed that some of the welding
rods, propellers and boat spare parts, such as bronze and stainless
propellers and brass screws were missing. She conducted an
inventory and discovered that propellers and stocks valued at
P48,000.00, more or less, were missing. Complainant Rosita Lim
informed Victor Sy, uncle of Manuelito Mendez, of the loss.
Subsequently, Manuelito Mendez was arrested in the Visayas and
he admitted that he and his companion Gaudencio Dayop stole
from the complainants warehouse some boat spare parts such as
bronze and stainless propellers and brass screws. Manuelito
Mendez asked for complainants forgiveness. He pointed to
petitioner Ramon C. Tan as the one who bought the stolen items
and who paid the amount of P13,000.00, in cash to Mendez and
Dayop, and they split the amount with one another. Complainant
did not file a case against Manuelito Mendez and Gaudencio Dayop.
On relation of complainant Lim, an Assistant City Prosecutor of
Manila filed with the Regional Trial Court, Manila, Branch 19, an
information against petitioner charging him with violation of
Presidential Decree No. 1612 (Anti-Fencing Law) committed as
follows:
That on or about the last week of February 1991, in the City of
Manila, Philippines, the said accused, did then and there wilfully,
unlawfully and feloniously knowingly receive, keep, acquire and
possess several spare parts and items for fishing boats all valued at
P48,130.00 belonging to Rosita Lim, which he knew or should have
known to have been derived from the proceeds of the crime of
theft.
Contrary to law.
 Upon arraignment on November 23, 1992, petitioner Ramon
C. Tan pleaded not guilty to the crime charged and waived pre-trial.
To prove the accusation, the prosecution presented the testimonies
of complainant Rosita Lim, Victor Sy and the confessed thief,
Manuelito Mendez.
On the other hand, the defense presented Rosita Lim and
Manuelito Mendez as hostile witnesses and petitioner himself. The
testimonies of the witnesses were summarized by the trial court in
its decision, as follows:
ROSITA LIM stated that she is the owner of Bueno Metal Industries,
engaged in the business of manufacturing propellers, bushings,
welding rods, among others (Exhibits A, A-1, and B). That sometime
in February 1991, after one of her employees left the company, she
discovered that some of the manufactured spare parts were
missing, so that on February 19, 1991, an inventory was conducted
and it was found that some welding rods and propellers, among
others, worth P48,000.00 were missing. Thereafter, she went to
Victor Sy, the person who recommended Mr. Mendez to her.
Subsequently, Mr. Mendez was arrested in the Visayas, and upon
arrival in Manila, admitted to his having stolen the missing spare
parts sold then to Ramon Tan. She then talked to Mr. Tan, who
denied having bought the same.
When presented on rebuttal, she stated that some of their stocks
were bought under the name of Asia Pacific, the guarantor of their
Industrial Welding Corporation, and stated further that whether the
stocks are bought under the name of the said corporation or under
the name of William Tan, her husband, all of these items were
actually delivered to the store at 3012-3014 Jose Abad Santos
Street and all paid by her husband.
That for about one (1) year, there existed a business relationship
between her husband and Mr. Tan. Mr. Tan used to buy from them
stocks of propellers while they likewise bought from the former
brass woods, and that there is no reason whatsoever why she has
to frame up Mr. Tan.
MANUELITO MENDEZ stated that he worked as helper at Bueno
Metal Industries from November 1990 up to February 1991. That
sometime in the third week of February 1991, together with
Gaudencio Dayop, his co-employee, they took from the warehouse
of Rosita Lim some boat spare parts, such as bronze and stainless
propellers, brass screws, etc. They delivered said stolen items to
Ramon Tan, who paid for them in cash in the amount of P13,000.00.
After taking his share (one-half (1/2) of the amount), he went home
directly to the province. When he received a letter from his uncle,
Victor Sy, he decided to return to Manila. He was then accompanied
by his uncle to see Mrs. Lim, from whom he begged for forgiveness
on April 8, 1991. On April 12, 1991, he executed an affidavit
prepared by a certain Perlas, a CIS personnel, subscribed to before
a Notary Public (Exhibits C and C-1).
VICTORY [sic] SY stated that he knows both Manuelito Mendez and
Mrs. Rosita Lim, the former being the nephew of his wife while the
latter is his auntie. That sometime in February 1991, his auntie
called up and informed him about the spare parts stolen from the
warehouse by Manuelito Mendez. So that he sent his son to Cebu
and requested his kumpadre, a police officer of Sta. Catalina,
Negros Occidental, to arrest and bring Mendez back to Manila.
When Mr. Mendez was brought to Manila, together with Supt. Perlas
of the WPDC, they fetched Mr. Mendez from the pier after which
they proceeded to the house of his auntie. Mr. Mendez admitted to
him having stolen the missing items and sold to Mr. Ramon Tan in
Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where
he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan
denied the same.
ROSITA LIM, when called to testify as a hostile witness, narrated
that she owns Bueno Metal Industries located at 301 Jose Abad
Santos Street, Tondo, Manila. That two (2) days after Manuelito
Mendez and Gaudencio Dayop left, her husband, William Tan,
conducted an inventory and discovered that some of the spare
parts worth P48,000.00 were missing. Some of the missing items
were under the name of Asia Pacific and William Tan.
33
MANUELITO MENDEZ, likewise, when called to testify as a hostile
witness, stated that he received a subpoena in the Visayas from the
wife of Victor Sy, accompanied by a policeman of Buliloan, Cebu on
April 8, 1991. That he consented to come to Manila to ask
forgiveness from Rosita Lim. That in connection with this case, he
executed an affidavit on April 12, 1991, prepared by a certain Atty.
Perlas, a CIS personnel, and the contents thereof were explained to
him by Rosita Lim before he signed the same before Atty. Jose Tayo,
a Notary Public, at Magnolia House, Carriedo, Manila (Exhibits C and
C-1).
That usually, it was the secretary of Mr. Tan who accepted the items
delivered to Ramon Hardware. Further, he stated that the stolen
items from the warehouse were placed in a sack and he talked to
Mr. Tan first over the phone before he delivered the spare parts. It
was Mr. Tan himself who accepted the stolen items in the morning
at about 7:00 to 8:00 oclock and paid P13,000.00 for them.
RAMON TAN, the accused, in exculpation, stated that he is a
businessman engaged in selling hardware (marine spare parts) at
944 Espeleta Street, Sta. Cruz, Manila.
He denied having bought the stolen spare parts worth P48,000.00
for he never talked nor met Manuelito Mendez, the confessed thief.
That further the two (2) receipts presented by Mrs. Lim are not
under her name and the other two (2) are under the name of
William Tan, the husband, all in all amounting to P18,000.00.
Besides, the incident was not reported to the police (Exhibits 1 to 1-
g).
He likewise denied having talked to Manuelito Mendez over the
phone on the day of the delivery of the stolen items and could not
have accepted the said items personally for everytime (sic) goods
are delivered to his store, the same are being accepted by his staff.
It is not possible for him to be at his office at about 7:00 to 8:00
oclock in the morning, because he usually reported to his office at
9:00 oclock. In connection with this case, he executed a counter-
affidavit (Exhibits 2 and 2-a).[1]
On August 5, 1996, the trial court rendered decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the accused RAMON C. TAN is
hereby found guilty beyond reasonable doubt of violating the Anti-
Fencing Law of 1979, otherwise known as Presidential Decree No.
1612, and sentences him to suffer the penalty of imprisonment of
SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor
and to indemnify Rosita Lim the value of the stolen merchandise
purchased by him in the sum of P18,000.00.
Costs against the accused.
SO ORDERED.
Manila, Philippines, August 5, 1996.
Petitioner appealed to the Court of Appeals.
After due proceedings, on January 29, 1998, the Court of
Appeals rendered decision finding no error in the judgment
appealed from, and affirming the same in toto.
In due time, petitioner filed with the Court of Appeals a motion
for reconsideration; however, on June 16, 1998, the Court of
Appeals denied the motion.
Hence, this petition.
The issue raised is whether or not the prosecution has
successfully established the elements of fencing as against
petitioner.[2]
We resolve the issue in favor of petitioner.
Fencing, as defined in Section 2 of P.D. No. 1612 is the act of
any person who, with intent to gain for himself or for another, shall
buy, receive, possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any manner deal in any article, item, object
or anything of value which he knows, or should be known to him, to
have been derived from the proceeds of the crime of robbery or
theft.[3]
Robbery is the taking of personal property belonging to
another, with intent to gain, by means of violence against or
intimidation of any person, or using force upon things. [4]
The crime of theft is committed if the taking is without
violence against or intimidation of persons nor force upon things. [5]
The law on fencing does not require the accused to have
participated in the criminal design to commit, or to have been in
any wise involved in the commission of, the crime of robbery or
theft.[6]
Before the enactment of P. D. No. 1612 in 1979, the fence
could only be prosecuted as an accessory after the fact of robbery
or theft, as the term is defined in Article 19 of the Revised Penal
Code, but the penalty was light as it was two (2) degrees lower
than that prescribed for the principal.[7]
P. D. No. 1612 was enacted to impose heavy penalties on
persons who profit by the effects of the crimes of robbery and theft.
Evidently, the accessory in the crimes of robbery and theft could be
prosecuted as such under the Revised Penal Code or under P.D. No.
1612. However, in the latter case, the accused ceases to be a mere
accessory but becomes a principal in the crime of fencing.
Otherwise stated, the crimes of robbery and theft, on the one hand,
and fencing, on the other, are separate and distinct offenses. [8] The
State may thus choose to prosecute him either under the Revised
Penal Code or P. D. No. 1612, although the preference for the latter
would seem inevitable considering that fencing is malum
prohibitum, and P. D. No. 1612 creates a presumption of
fencing[9] and prescribes a higher penalty based on the value of the
property.[10]
In Dizon-Pamintuan vs. People of the Philippines, we set out
the essential elements of the crime of fencing as follows:
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and
sells, or in any manner deals in any article, item, object or anything
of value, which has been derived from the proceeds of the said
crime;
3. The accused knows or should have known that the said article,
item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft; and
4. There is on the part of the accused, intent to gain for himself or
for another.[11]
Consequently, the prosecution must prove the guilt of the
accused by establishing the existence of all the elements of the
crime charged. [12]
Short of evidence establishing beyond reasonable doubt the
existence of the essential elements of fencing, there can be no
conviction for such offense.[13] It is an ancient principle of our penal
system that no one shall be found guilty of crime except upon proof
beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9).
[14]
In this case, what was the evidence of the commission of theft
independently of fencing?
Complainant Rosita Lim testified that she lost certain items
and Manuelito Mendez confessed that he stole those items and sold
them to the accused. However, Rosita Lim never reported the theft
or even loss to the police. She admitted that after Manuelito
Mendez, her former employee, confessed to the unlawful taking of
the items, she forgave him, and did not prosecute him. Theft is a
public crime. It can be prosecuted de oficio, or even without a
private complainant, but it cannot be without a victim. As
34
complainant Rosita Lim reported no loss, we cannot hold for certain
that there was committed a crime of theft. Thus, the first element
of the crime of fencing is absent, that is, a crime of robbery or theft
has been committed.
There was no sufficient proof of the unlawful taking of
anothers property. True, witness Mendez admitted in an extra-
judicial confession that he sold the boat parts he had pilfered from
complainant to petitioner. However, an admission or confession
acknowledging guilt of an offense may be given in evidence only
against the person admitting or confessing.[15] Even on this, if given
extra-judicially, the confessant must have the assistance of
counsel; otherwise, the admission would be inadmissible in
evidence against the person so admitting.[16] Here, the extra-judicial
confession of witness Mendez was not given with the assistance of
counsel, hence, inadmissible against the witness. Neither may such
extra-judicial confession be considered evidence against accused.
[17]
There must be corroboration by evidence of corpus delicti to
sustain a finding of guilt. [18] Corpus delicti means the body or
substance of the crime, and, in its primary sense, refers to the fact
that the crime has been actually committed.[19] The essential
elements of theft are (1) the taking of personal property; (2) the
property belongs to another; (3) the taking away was done with
intent of gain; (4) the taking away was done without the consent of
the owner; and (5) the taking away is accomplished without
violence or intimidation against persons or force upon things (U. S.
vs. De Vera, 43 Phil. 1000). [20] In theft, corpus delicti has two
elements, namely: (1) that the property was lost by the owner, and
(2) that it was lost by felonious taking. [21] In this case, the theft was
not proved because complainant Rosita Lim did not complain to the
public authorities of the felonious taking of her property. She sought
out her former employee Manuelito Mendez, who confessed that he
stole certain articles from the warehouse of the complainant and
sold them to petitioner. Such confession is insufficient to convict,
without evidence of corpus delicti.[22]
What is more, there was no showing at all that the accused
knew or should have known that the very stolen articles were the
ones sold to him. One is deemed to know a particular fact if he has
the cognizance, consciousness or awareness thereof, or is aware of
the existence of something, or has the acquaintance with facts, or if
he has something within the minds grasp with certitude and clarity.
When knowledge of the existence of a particular fact is an element
of an offense, such knowledge is established if a person is aware of
a high probability of its existence unless he actually believes that it
does not exist. On the other hand, the words should know denote
the fact that a person of reasonable prudence and intelligence
would ascertain the fact in performance of his duty to another or
would govern his conduct upon assumption that such fact exists.
Knowledge refers to a mental state of awareness about a fact.
Since the court cannot penetrate the mind of an accused and state
with certainty what is contained therein, it must determine such
knowledge with care from the overt acts of that person. And given
two equally plausible states of cognition or mental
awareness, the court should choose the one which sustains
the constitutional presumption of innocence. [23]
Without petitioner knowing that he acquired stolen articles, he
can not be guilty of fencing.[24]
Consequently, the prosecution has failed to establish the
essential elements of fencing, and thus petitioner is entitled to an
acquittal.
WHEREFORE, the Court REVERSES and SETS ASIDE the
decision of the Court of Appeals in CA-G.R. CR. No. 20059 and
hereby ACQUITS petitioner of the offense charged in Criminal Case
No. 92-108222 of the Regional Trial Court, Manila.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-
Santiago, JJ., concur.