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JACINTO V PEOPLE language of the law—that theft is already “produced” upon the “tak[ing of] personal
G.R. No. 162540. July 13, 2009.* property of another without the latter’s consent.”
GEMMA T. JACINTO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Same; Same; Since the crime of theft is not a continuing offense, petitioner’s act of
Criminal Law; Theft; The personal property subject of the theft must have some receiving the cash replacement should not be considered as a continuation of the theft.—
value, as the intention of the accused is to gain from the thing stolen.—As may be gleaned There can be no question that as of the time that petitioner took possession of the
from the aforementioned Articles of the Revised Penal Code, the personal property check meant for Mega Foam, she had performed all the acts to consummate the
subject of the theft must have some value, as the intention of the accused is to gain crime of theft, had it not been impossible of accomplishment in this case. The
from the thing stolen.This is further bolstered by Article 309, where the law provides circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the
that the penalty to be imposed on the accused is dependent on the value of the thing dishonored check was no longer necessary for the consummation of the crime of
stolen. In this case, petitioner unlawfully took the postdated check belonging to Mega qualified theft. Obviously, the plan to convince Baby Aquino to give cash as replacement
Foam, but the same was apparently without value, as it was subsequently dishonored. for the check was hatched only after the
Thus, the question arises on whether the crime of qualified theft was actually produced. 428
Same; Impossible Crimes; The requisites of an impossible crime are: (1) that the act 4 SUPREME COURT REPORTS ANNOTATED
performed would be an offense against persons or property; (2) that the act was done with 28
evil intent; and (3) that its accomplishment was inherently impossible, or the means check had been dishonored by the drawee bank. Since the crime of theft is not a
employed was either inadequate or ineffectual.—The requisites of an impossible crime continuing offense, petitioner’s act of receiving the cash replacement should not be
are: (1) that the act performed would be an offense against persons or property; (2) that considered as a continuation of the theft. At most, the fact that petitioner was caught
the act was done with evil intent; and (3) that its accomplishment was inherently receiving the marked money was merely corroborating evidence to strengthen proof of
impossible, or the means employed was either inadequate or ineffectual. The aspect of her intent to gain.
the inherent impossibility of accomplishing the intended crime under Article 4(2) of the Pleadings and Practice; Since said scheme was not included or covered by the
Revised Penal Code was further explained by the allegations in the Information, the Court cannot pronounce judgment on the accused;
otherwise, it would violate the due process clause of the Constitution.—The fact that
_______________ petitioner further planned to have the dishonored check replaced with cash by its issuer
is a different and separate fraudulent scheme. Unfortunately, since said scheme was not
* THIRD DIVISION. included or covered by the allegations in the Information, the Court cannot pronounce
427 judgment on the accused; otherwise, it would violate the due process clause of the
, 427 Constitution. If at all, that fraudulent scheme could have been another possible source of
Court in Intod in this wise: Under this article, the act performed by the offender criminal liability.
cannot produce an offense against persons or property because: (1) the commission of PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
the offense is inherently impossible of accomplishment; or (2) the means employed is The facts are stated in the opinion of the Court.
either (a) inadequate or (b) ineffectual. That the offense cannot be produced because the Hillario Paul H. Ragunjan, Jr. for petitioner.
commission of the offense is inherently impossible of accomplishment is the focus of this The Solicitor General for respondent.
petition. To be impossible under this clause, the act intended by the offender must be by PERALTA, J.:
its nature one impossible of accomplishment. There must be either (1) legal Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto
impossibility, or (2) physical impossibility of accomplishing the intended act in order to seeking the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
qualify the act as an impossible crime. Legal impossibility occurs where the intended 23761 dated December 16, 2003, affirming petitioner’s conviction of the crime of
acts, even if completed, would not amount to a crime. Qualified Theft, and its Resolution2 dated March 5, 2004 denying petitioner’s motion for
Same; Theft; The Court held in Valenzuela v. People (525 SCRA 306 [2007]) that reconsideration.
under the definition of theft in Article 308 of the Revised Penal Code, “there is only one
operative act of execution by the actor involved in theft—the taking of personal property of _______________
another.”—The fact that petitioner was later entrapped receiving the P5,000.00 marked
money, which she thought was the cash replacement for the dishonored check, is of no 1 Penned by Associate Justice Mario L. Guariña III, with Associate Justices Martin S.
moment. The Court held in Valenzuela v. People (525 SCRA 306 [2007]) that under the Villarama, Jr. and Jose C. Reyes, Jr., concurring; Rollo,pp. 70-77.
definition of theft in Article 308 of the Revised Penal Code, “there is only one operative 2 Id., at p. 86.
act of execution by the actor involved in theft—the taking of personal property of 429
another.” Elucidating further, the Court held, thus: x x x Parsing through the statutory , 429
definition of theft under Article 308, there is one apparent answer provided in the

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the above-named accused. group because she decided to go shopping. pp. her husband.00. 430 SUPREME COURT REPORTS ANNOTATED who was then holding the bounced BDO check. Thereafter. Ricablanca. 9-10. steal and deposited in their own account.5Verification from company aforesaid stated amount of P10. Ricablanca explained that she had to call and relay 6 TSN. the even bothering to inquire into the identity of the woman or her address. the cash Page 2 of 5 . who was looking for Generoso Capitle.00. p. conspiring together and mutually helping one another.4Baby Aquino further testified that. and within the jurisdiction of this Honorable Court. was going along with Valencia’s plan. being then all employees of MEGA sometime in July 1997. and Ricablanca went to the Around that time. with the crime of Qualified Theft. along with two other women. Inc.00. City.000. Baby Aquino said that she had already paid Mega Foam P10. house of Anita Valencia. Petitioner. reported the matter to the owner of Mega Foam. take. 1997 when some unknown woman arrived at his house around the first week of July 1997 to in the amount of P10. It was only petitioner. instead of issuing the checks payable to CASH. was charged before the Regional Trial Court (RTC) of Caloocan Foam’s accountant. but explained that the check came into his possession handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14. Bank regarding the bounced check. 1998. in Kalookan City. the message through Valencia. Ricablanca again went to petitioner’s house. February 11. petitioner Jacinto and Jacqueline Capitle. Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment operation with its agents. payment for her purchases from Mega Foam. but the plan did not push through. February 11. admitted depositing the subject In the month of June 1997. CONTRARY TO LAW. 14. Metro latter indeed handed petitioner a BDO check for P10. However. _______________ Ricablanca then phoned accused Anita Valencia. petitioner and Jacqueline Capitle. However. the bills were given to Ricablanca. her husband. 2007.00 cash in The prosecution’s evidence. Petitioner. Isabelita Aquino Milabo. Joseph Dyhengco talked to Baby Aquino and was able to confirm that the “That on or about and sometime in the month of July 1997. representing payment made by customer Baby . because the Capitles did not have a phone. 8. he merely disregarded it as he didn’t know Jacqueline Capitle.00 sometime in June 1997 as Manila. 0132649 dated 431 July 14.”3 However. allegedly committed as follows: Thereafter. 2007.6 credible. a neighbor and former co-employee of Jacqueline Capitle at 432 SUPREME COURT REPORTS ANNOTATED Mega Foam. upon the advise of Mega and Jacqueline Capitle. Petitioner. Generoso Capitle.00 _______________ bills provided by Dyhengco were marked and dusted with fluorescent powder by the NBI. The check was payment for Baby Aquino’s purchases from have the check rediscounted. asking the latter to inform Jacqueline Capitle about the phone call from Land 5 Id. Banco De Oro Check No. Branch 131.000. records showed that petitioner never remitted the subject check to Mega Foam. and instructed Ricablanca and Valencia who then boarded petitioner’s jeep and went on to Baby Ricablanca to ask Baby Aquino to replace the check with cash. to the damage and prejudice of the latter in the her on the phone to tell her that the BDO check bounced. another employee of Mega Foam. the husband of informed by the bank that the check bounced. Joseph Dyhengco. Meanwhile.. Meanwhile. 1998. The reason for the call was to inform Capitle that the subject BDO check deposited in his account had been dishonored. Somehow. but they could 432 be reached through Valencia. namely. Ten pieces of P1. reveals the events that transpired to be as follows.. where to find the woman who rediscounted the check. He parted with his cash in exchange for the check without Mega Foam Int’l. Jacqueline Capitle decided not to go with the Valenzuela Branch.000. a former employee/collector of Mega Foam. unlawfully and feloniously 4 TSN. Said customer had apparently been On the agreed date. 1997 in the sum of P10. Baby Aquino. When he was check was deposited in the Land Bank account of Generoso Capitle. Valencia then told Ricablanca that the check came from Baby Aquino. herein represented by JOSEPH DYHENGCO Y CO. they agreed to meet again on customer wanted to know if she could issue checks payable to the account of Mega Foam. Inc. petitioner also called FOAM INTERNATIONAL INC. presented as a hostile witness. handed over said check to Ricablanca. BDO check in his bank account. Ricablanca also received a phone call from an employee of Land Bank. p. and as such had free access inside the aforesaid establishment. did then and there willfully.. pretending that she was getting cash from Baby Aquino. with grave abuse of trust and _______________ confidence reposed upon them with intent to gain and without the knowledge and consent of the owner thereof. at p. merchandising and inventory clerk of Mega Foam. Only Ricablanca alighted from the jeep and entered the premises of Ricablanca of a plan to take the cash and divide it equally into four: for herself.000. Valencia also told Aquino’s factory.. Jennifer Sanalila. Ricablanca and petitioner met at the latter’s house. also known as Baby Aquino. August 21. the latter is the sister of petitioner and the former pricing. who was tasked to pretend that she 3 Records.000. Anita Busog de Valencia y Rivera Ricablanca. 430 On August 15. received a phone They originally intended to proceed to Baby Aquino’s place to have the check replaced call sometime in the middle of July from one of their customers. 107. The with cash. Rowena Ricablanca.000. 431 Aquino to the Mega Foam Int’l. which both the RTC and the CA found to be more August 1997 as replacement for the dishonored check. where she met instructed by Jacqueline Capitle to make check payments to Mega Foam payable to CASH. and petitioner was then the collector of Mega Foam.

1997. case for qualified theft against the two and one Jane Doe who was later identified as SO ORDERED. Ricablanca came out and. (5) it was accomplished without the use of violence or intimidation against Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each persons. June 30. Since petitioner was going for a pre-natal check-up at the Chinese General Hospital. Whether or not a worthless check can be the object of theft. but the same was denied per Resolution dated March the following scenario. in that: Article 309. as minimum. on the other hand.00 marked money 7 Rollo. 2. EIGHT (8) grave abuse of confidence—petitioner is admittedly entrusted with the collection of MONTHS AND TWENTY (20) DAYS. as she had never the bank account of petitioner’s brother-in-law. 5. SO ORDERED. the Court finds accused Gemma Tubale De check payment from her employer’s customer by not remitting the check to the Jacinto y Latosa. Anita Busog De Valencia y Rivera and Jacqueline company. and was The petition deserves considerable thought. to her surprise. After ten _______________ minutes.8 them to wait in their jeep. on the morning of August 21. (3) the taking was done with intent to gain—this is presumed from Baby Aquino. a Decision was Code. but requested them to wait for her in the jeep. very surprised when Ricablanca placed the money on her lap and the NBI agents The prosecution tried to establish the following pieces of evidence to constitute the arrested them. follows: on the day of the arrest. Ricablanca gave her money and so she even asked. Ricablanca called her up belonged to another—the check belonged to Baby Aquino. on October 4. This is further bolstered by “IN VIEW OF THE FOREGOING. 2004. (a) the sentence against accused Gemma Jacinto stands. Petitioner and Valencia were brought to the NBI office where the Forensic Chemist (b) the sentence against accused Anita Valencia is reduced to 4 found fluorescent powder on the palmar and dorsal aspects of both of their hands. the RTC 435 rendered its Decision. A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for The defense. The NBI filed a criminal (c) The accused Jacqueline Capitle is acquitted. (4) it was done without the owner’s been to said house. previously given to her by Dyhengco. Petitioner admitted that she was a collector for Mega Foam until she resigned on Hence. instead. 435 “WHEREFORE. She allegedly had no idea why Ricablanca asked reasonable doubt. the dispositive portion of which reads. Valencia claims that she agreed to do so. (2) said property customers. and Ricablanca decided to hitch a ride with the former and her husband in their jeep going to 3. p. When they arrived at said place. 2003. This months arresto mayor medium. and (6) it was done with MONTHS AND ELEVEN (11) DAYS.she actually brought out from the premises was the P10. It was never part of her job to collect payments from payment to her employer and.433 elements of the crime of qualified theft defined under Article 308. as the promulgated. 1997. the wife of Generoso Capitle. and asked that she accompany her (Ricablanca) to Baby Aquino’s house. thus: intention of the accused is to gain from the thing stolen.000. where she was staying 1. 433 310. Ricablanca divided the money and upon returning 434 to the jeep. Whether or not the prosecution has proved petitioner’s guilt beyond Baby Aquino’s place in Caloocan City. They then met at the house of petitioner’s mother. Thereafter. appropriated it for herself.. but claimed that she had stopped collecting payments from Baby Aquino assailing the Decision and Resolution of the CA.000. 128. as collector for Mega Foam. the personal property subject of the theft must have some value. did not remit the customer’s check resigned on June 30. both of the Revised Penal Code: (1) the taking of personal property—as shown by Anita Valencia also admitted that she was the cashier of Mega Foam until she the fact that petitioner. in relation to Article . 8 Id. as may be gleaned from the aforementioned Articles of the Revised Penal The three appealed to the CA and.00 each to Valencia and petitioner. asking if she (Valencia) could accompany her (Ricablanca) to the house of purchases she made. information. denied having taken the subject check and presented petitioner Gemma Tubale Jacinto. despite her admission during the act of unlawful taking and further shown by the fact that the check was deposited to cross-examination that she did not know where Baby Aquino resided. on December 16. as maximum. Ricablanca alighted. FIVE (5) customer. “What is this?” Then. Ricablanca came to her mother’s house. The trial of the three accused went its usual course and. Whether or not petitioner can be convicted of a crime not charged in the at that time. 1999.” Jacqueline Capitle. which they parked outside the house of Baby Aquino. rode the jeep of consent—petitioner hid the fact that she had received the petitioner and her husband. nor of force upon things—the check was voluntarily handed to petitioner by the of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS.”7 However. the decision of the trial court is MODIFIED. The issues raised in the petition are as for quite some time before her resignation from the company. at p. 51. payments from customers. According to her. and proceeded to Baby Aquino’s place. the NBI agents arrested them. who had been watching the whole time. to SIX (6) YEARS. gave P5. the present Petition for Review on Certiorarifiled by petitioner alone. where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen. showed that petitioner and Valencia handled the marked money. She further testified that. 1997. in view of the foregoing. petitioner and 434 SUPREME COURT REPORTS ANNOTATED Valencia were arrested by NBI agents. the dispositive portion of which reads: . as she was known to be a collector for the company. as it was her payment for on the phone. _______________ Page 3 of 5 .

Petitioner’s evil intent cannot be xxxx denied. once having committed all the acts of execution Page 4 of 5 . as it was subsequently dishonored. Viewed from that perspective. were it not for the inherent impossibility of its would have received the face value thereof. upon the “tak[ing of] personal property of another without the latter’s consent. bullets. The Court held in Valenzuela v. the requisites of an impossible crime are: (1) that the act performed would be 11 Id.. the Court went on to give an example of an offense that involved factual impossibility. Were it not for the fact that the check bounced.—Criminal responsibility shall be incurred: qualified theft. x x x”11 _______________ In Intod.” Elucidating further. either (1) legal impossibility. peppered the latter’s bedroom with act in order to qualify the act as an impossible crime. Pertinent portions of said On the other hand. Article 4. but gets nothing since the pocket is empty..R. the act performed by the offender cannot produce an offense personal property of another. which was not rightfully hers. the court.000. as the mere act of unlawfully taking the check meant for Mega Foam showed her 2. or the means employed was either 438 SUPREME COURT REPORTS ANNOTATED inadequate or ineffectual. and (3) 438 that its accomplishment was inherently impossible. i. In this case. which is a crime against property. the accused.” Thus. 1992.—When the person intending to check was eventually dishonored. petitioner performed all the acts to consummate the crime of “Article 4(2). the 437 question arises on whether the crime of qualified theft was actually produced. 10 Supra. petitioner unlawfully took the postdated check belonging to Mega Foam. no harm came to him. that prevented the crime from being produced. 57-58. and Mega Foam had received the cash to replace the commit an offense has already performed the acts for the execution of the same but value of said dishonored check. a fact ineffectual means. the offender must be by its nature one impossible of accomplishment. nevertheless the crime was not produced by reason of the fact that the act intended was The fact that petitioner was later entrapped receiving the P5. By any person performing an act which would be an offense against intent to gain or be unjustly enriched. (emphasis supplied) unknown to petitioner at the time.” That the offense cannot be produced because the commission of the offense is xxxx inherently impossible of accomplishment is the focus of this petition. Legal impossibility occurs where the intended acts. the act intended by the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. is of no moment. In this case. steal the latter’s wallet. but since the intended victim was not home at the time. shall _______________ impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos. an offense against persons or property. it accomplishment or on account of the employment of inadequate to was only due to the extraneous circumstance of the check being unfunded. October 21. a man puts his hand in the coat pocket of another with the intention to 9 G. she persons or property. it is immaterial to the _______________ product of the felony that the offender. (2) that the act was done with evil intent. in relation to Article 59. or (2) physical impossibility of accomplishing the intended In Intod. thus: against persons or property because: (1) the commission of the offense is inherently “x x x Parsing through the statutory definition of theft under Article 308. would not The trial court and the CA held Intod guilty of attempted murder. 215 SCRA 52. intended crime under Article 4(2) of the Revised Penal Code was further explained by People12 that under the definition of theft in Article 308 of the Revised Penal Code. both of the Revised Penal Code. There must be Intod v. or (2) the means employed is either (a) inadequate or (b) apparent answer provided in the language of the law—that theft is already “produced” ineffectual. 437 The Court must resolve the issue in the negative. having in mind the social danger and the degree of criminality shown by the offender. Penalty to be imposed in case of failure to commit the crime because the thing unlawfully taken by petitioner turned out to be absolutely worthless. Thus. he was adjudged guilty only of an impossible crime as defined and penalized xxxx in paragraph 2. . at pp. Therefore. The impossibility of killing a person already dead falls in this category. because of the factual impossibility of producing the crime. No. because the means employed or the aims sought are impossible.e. this Court. 103119. by its nature one of impossible accomplishment or because the means employed by such which she thought was the cash person are essentially inadequate to produce the result desired by him. 436 Herein petitioner’s case is closely akin to the above example of factual impossibility 436 SUPREME COURT REPORTS ANNOTATED given in Intod. factual impossibility occurs when extraneous circumstances provisions read as follows: unknown to the actor or beyond his control prevent the consummation of the intended crime. The aspect of the inherent impossibility of accomplishing the replacement for the dishonored check.00 marked money. But upon review by amount to a crime. Criminal Responsibility. “there the Court in Intod10 in this wise: is only one operative act of execution by the actor involved in theft—the taking of “Under this article. Court of Appeals9 is highly instructive and applicable to the present case. but the same was apparently without value. even if completed. The Article 59. the Court held. there is one impossible of accomplishment. To be impossible x x x when is the crime of theft produced? There would be all but certain unanimity in under this clause. intending to kill a person.

At most. 2004. Jr.00 cash as supposed _______________ 12 G. which is the deprivation of one’s personal property. SO ORDERED. x x x”13 From the above discussion. are MODIFIED. Velasco. had it not been impossible of accomplishment in this case. 525 SCRA 306 [2007]) ——o0o—— Page 5 of 5 . since said scheme was not included or covered by the allegations in the Information. held that unlawful taking. Petitioner is sentenced to suffer the penalty of six (6) months of arrresto mayor. the plan to convince Baby Aquino to give cash as replacement for the check was hatched only after the check had been dishonored by the drawee bank. or apoderamiento. there can be no question that as of the time that petitioner took possession of the check meant for Mega Foam. and Nachura. the Court cannot pronounce judgment on the accused. the fact that petitioner was caught receiving the marked money was merely corroborating evidence to strengthen proof of her intent to gain. is deemed complete from the moment the offender gains possession of the thing.000..for theft. Chico-Nazario. The circumstance of petitioner receiving the P5. after all.R. The Decision of the Court of Appeals. 2007. Petition granted. June 21. even if he has no opportunity to dispose of the same. 343-345. and 59 of the Revised Penal Code.—It will take considerable amendments to the Revised Penal Code in order that frustrated theft may be recognized. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles 4. and its Resolution dated March 5. 439 . Unfortunately. IN VIEW OF THE FOREGOING. Ynares-Santiago (Chairperson). Petitioner Gemma T. Note. x x x xxxx x x x we have. and to pay the costs. judgment and resolution modified. she had performed all the acts to consummate the crime of theft. 525 SCRA 306. it would violate the due process clause of the Constitution. JJ. respectively. If at all. the petition is GRANTED. Since the crime of theft is not a continuing offense. at pp. 324. is the element which produces the felony in its consummated stage. petitioner’s act of receiving the cash replacement should not be considered as a continuation of the theft.. paragraph 2. Obviously. dated December 16. x x x x x x Unlawful taking. 13 Id. 2003. the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and separate fraudulent scheme. concur. otherwise. 439 replacement for the dishonored check was no longer necessary for the consummation of the crime of qualified 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. 160188. No. People. (Valenzuela vs. that fraudulent scheme could have been another possible source of criminal liability. Moreover. 327.