LUIS MARCOS P. LAUREL, G.R. No. 155076
Petitioner,
Present:
Puno, C.J.,
Quisumbing,
Ynares-Santiago,
Carpio,
- versus - Austria-Martinez,
Corona,
Carpio Morales,
Azcuna,
Tinga,
Chico-Nazario,
Velasco, Jr.,
Nachura,
Leonardo-De Castro, and
Brion, JJ.
HON. ZEUS C. ABROGAR,
Presiding Judge of the Regional
Trial Court, Makati City, Branch 150,
PEOPLE OF THE PHILIPPINES Promulgated:
& PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY,
Respondents. January 13, 2009
x ---------------------------------------------------------------------------------------- x
RESOLUTION
YNARES-SANTIAGO, J.:
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 Code
hence, may be proper subjects of theft. It noted that the cases of United States v. Genato,[3]United States v. Carlos[4] and United States v.
Tambunting,[5] which recognized 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
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 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.
SO ORDERED.
[G.R. No. 143561. June 6, 2001]
JONATHAN D. CARIAGA, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and DAVAO LIGHT and
POWER CO., respondents.
DECISION
GONZAGA-REYES, J.:
This is a petition for review on certiorari seeking the reversal of the decision[1] of the Court of Appeals in CA-G.R. No. 13363
entitled People v. Jonathan Cariaga, promulgated on April 24, 1995 affirming the decision of the Regional Trial Court of Davao City,
Branch 11,[2] which convicted petitioner Jonathan Cariaga of the crime of Qualified Theft.
In an amended Information[3]dated October 3, 1989, petitioner was charged with qualified theft as follows:
That sometime during the period from October, 1988 to January, 1989, in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, being then an employee of Davao Light & Power Co. Inc., Davao City, and as such has
access to the said company, with intent to gain, with grave abuse of confidence and without the knowledge and consent of the owner
thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away electrical equipment, supplies and materials
totaling P7,038.96 belonging to Davao Light & Power Company, to the damage and prejudice of the said company, in the aforesaid
amount of P7,038.96.
Contrary to law.
The factual background of this case as summarized by the trial court and adopted by the Court of Appeals is as follows:
Luis Miguel Aboitiz, employed at the time of the incident in question and for sometime prior thereto as Systems Analyst of the Davao
Light & Power Company, Inc. (DLPC), whose duty was to devise systems, procedures or controls to promote efficiency, prevent losses
due to waste, pilferage or theft of company property, etc., received reports that some private electricians were engaged in the clandestine
sale of DLPC materials and supplies. He initiated a covert operation with the following objectives: (1) ascertain how DLPC materials were
being stolen, the frequency of the thefts, who were perpetrating the thefts; and (2) `catch at least one (1) DLPC employee that may be
involved.
In October, 1988, he sought the assistance of Sgt. Fermin Villasis, Chief, Theft & Robbery Section, San Pedro Patrol Station, Davao
METRODISCOM. He also hired one Florencio Siton, a welder by occupation and a Civilian Home Defense Forces (CHDF) member, as
his undercover agent under the pseudonym Canuto Duran, an electrician from Kabakan, Cotabato.
Canuto Duran struck an acquaintance with one Ricardo Cariaga, a private electrician, at the Miguel Store, situated in front of the DLPC
office along Ponciano Reyes (now Bangoy) Street, Davao City. He told Ricardo that his boss ordered him to buy electrical materials to be
brought to Diwalwal, a gold panning area in Monkayo, Davao (formerly Davao del Norte).
Ricardo offered to supply Canuto Duran with electrical materials, saying that he has a cousin from whom he can procure the same. Canuto
purchased small electrical wires which, according to Ricardo, came from his cousin, Jonathan Cariaga, nicknamed Totoy.
On November 17, 1988, Ricardo introduced Canuto to Jonathan at Miguel Store. It turned out that Jonathan was the assigned driver of
DLPC Service Truck S-143 assigned to Work Gang Venus. Canuto inquired from Jonathan if he could supply him with two (2) 15 KVA
transformers. Jonathan replied that he could for P16,000. Canuto placed an order for the transformers. The deal did not materialize,
however, as Canutos boss (Miguel Aboitiz) who would provide the funds happened to be out of town. Jonathan appeared piqued. To
appease him, Canuto assured him that they shall continue their business relationship. Not long after, he placed an order for a lightning
arrester. Ricardo, Jonathan and Canuto agreed to meet at the corner of Jacinto and Arellano Streets.
Jonathan got DLPC Truck S-143 which was inside the DLPC Compound at Ponciano Reyes Street and drove it to the designated meeting
place, leaving Canuto and Ricardo at Miguel Store. After a while, Ricardo and Canuto followed. On the way, Canuto gave Ricardo
P1,800. At the meeting place, Ricardo gave the money to Jonathan, after which the latter got a lightning arrester (Exh. M) from his trucks
toolbox and handed it to Ricardo, who, in turn gave it to Canuto.
On January 23, 1989, Ricardo accompanied Canuto to Jonathans house at Doa Pilar Village, Sasa, Davao City, to get a roll of Electrical
Wire No. 2 (300 meters long) valued P5,010 (Exh. J) and 2 lightning arresters with cutout, valued P1,185.75 each, or P2,371.50 for both
(Exhs. I and I-1) from Jonathan. Canuto paid P2,500.00 only for the items. He gave the money to Ricardo; Ricardo, in turn, gave it to
Jonathan.
Sitons undercover work came to an abrupt end on February 1, 1989 when members of Sgt. Villasis team apprehended Canuto and turned
him over, including the electrical wires that he previously purchased from Jonathan through Ricardo, to the San Pedro Patrol Station. The
team was unable to arrest Ricardo as he had already left when the team arrived at his house. Canuto Duran confessed in order to persuade
Ricardo and the others who were involved to likewise come out with the truth. Thus, when Ricardo and Sergio Jamero appeared at the San
Pedro Patrol Station on the invitation of the police, they confessed to their crimes (Exhs. A and G, respectively).
Ricardo revealed that he acted as a fence for his cousin, Jonathan Cariaga and Canuto Duran on November 27, 1988 and again on January
23, 1989; that the items that Canuto Duran bought from Jonathan, thru him, were DLPC properties.
Jamero also confessed that Ricardo was his fence in disposing of DLPC electrical materials that he pilfered but the items were not sold to
Canuto Duran but to someone else.
The recitals of Ricardo and Jamero in their sworn statements are substantially corroborated by entries in the Daily Record of Events
(blotter) of the San Pedro Patrol Station (Exhs. B, B-1; C, C-1; D, D-1; E, E-1; and F, F-1).
The accused was also invited to the San Pedro Patrol Station but, according to Sgt. Villasis, he refused to give a statement.
The prosecution was unable to present Ricardo as its witness as the subpoena could not be personally served upon him as according to his
wife, Antonieta Cariaga, he was in Sultan Kudarat and the date of his return to Davao City was not certain (Exhs. Y, Y-1).
Acting on the extrajudicial confessions of the suspects, the reports of Siton to the police and the bust, the team under Sgt. Villasis
recovered the following items:
1. 1 pc. Lightning Arrester MEW Valve Type V (Exh. I);
2. 1 pc. Lightning Arrester MEW Valve Type (Exh. I-1);
3. 1 pc. Lightning Arrester MEW Thorex Type (unmarked);
4. 1 pc. Fuse Cut-out S&C Brand with Bracket (unmarked);
5. 1 pc. Fuse Cut-out with Fuse Holder, AB Chance (Exh. M);
6. 1 roll (330 meters) Aluminum Wire No. 8 (Exh. K);
7. 1 roll (300 meters) Aluminum Wire No. 2 (Exh. J);
8. 1 roll (36 coils) Aluminum Wire No. 6; ) One of these
9. 1 roll (74 coils) Aluminum Wire No. 8; ) rolls is
10. 1 roll (41 coils) Aluminum Wire No. 2; ) marked Exh.
11. 1 set bracket for cut-out. ) AA
Sgt. Villasis testified that Exh. U and Exh. AA were the wires recovered from Siton during the bust while the rest, particularly Exhs. I and
I-1 J and M were recovered at Roselo Toledos house where Siton (Canuto Duran) brought them; x x x. [4]
According to the trial court, the prosecutions evidence considered as a whole is strong, clear and convincing. The statements in the
extrajudicial confessions of Ricardo Cariaga (Exhs. A; O,O-1) implicative of the accused as the source of the stolen articles, corroborated
by Sitons testimony and the police records (Exhs. D to F-2, inclusive) are formidable compared to the mere puny denial of the accused.
In due course, the trial court on November 18, 1991, rendered judgment, the decretal portion reading:
WHEREFORE, the Court finds accused Jonathan Cariaga guilty beyond reasonable doubt of theft, qualified by grave abuse of confidence,
under Article 310, in relation to Article 309, par. 2, of the Revised Penal Code, as charged, aggravated by the use of motor vehicle which is
not offset by any mitigating circumstance. Applying the Indeterminate Sentence Law, he is sentenced to suffer an indeterminate penalty
ranging from TEN (10) Years, EIGHT (8) MONTHS AND ONE (1) DAY, of prision mayor, as minimum, to EIGHTEEN (18) YEARS,
TWO (2) MONTHS AND TWENTY ONE (21) DAYS of reclusion temporal, as maximum; and to pay the costs.
No civil indemnity is awarded to DLPC, the private complainant, as the items stolen were recovered. The return to DLPC of all the items
recovered by the police is ordered.
SO ORDERED.[5]
On appeal by Jonathan Cariaga, the Court of Appeals affirmed on April 24, 1995, the decision of the trial court. The Court of
Appeals reasoned out that the sworn statement of Ricardo Cariaga who did not testify in open court during the criminal proceedings
against petitioner is admissible in evidence and properly considered by the trial court as this was annexed as part of DLPCs position paper
submitted to the National Labor Relations Commission in Case No. RAB-11-05-00308-89, a complaint filed by the accused for illegal
dismissal, as an exception to the hearsay rule under Section 47, Rule 130 of the Revised Rules of Court. The Court of Appeals likewise
upheld the credibility of Sitons testimony which corroborated that of Ricardo Cariagas sworn statement.
Hence, the instant petition raising the following errors:
I The trial court erred in admitting in evidence the sworn statement of Ricardo Cariaga without him taking the witness stand
since it violates the fundamental right of the accused to meet the witnesses against him face to face. Hence, Ricardo
Cariagas sworn statement is not admissible under Section 1(f), Rule 115 of the Revised Rules of Court for failure of the
prosecution to comply with the strict requirements of said rule, to wit:
a] Ricardo Cariaga did not orally testify in the labor case;
b] Inability to testify must be for a grave cause almost amounting to death and the prosecution must exhaust all available
remedies to secure the presence of its witnesses at the trial;
c] That the former proceeding must also be criminal in nature.
II. The appellate court erred in holding that the lone testimony of the prosecutions alleged eyewitness who is a paid witness
and whose testimony was admittedly corrected or revised on the witness stand and which materially and significantly
varies with his previous sworn statement on very vital and pivotal details is sufficient to prove the guilt of the accused
beyond reasonable doubt.
III.The appellate court erred in failing to appreciate the reasonable doubt engendered by the exculpatory statements of the
superiors of the accused in favor of the latter.[6]
In his first assignment of error, petitioner argues that the sworn statement of Ricardo Cariaga who was not presented in court is
inadmissible. The prosecution presented in evidence as Exh. P-2, Ricardo Cariagas sworn statement which was attached as Annex 8-A to
DLPCs position paper in the labor case filed by Jonathan Cariaga against the latter for illegal dismissal. The trial court admitted the same
in evidence despite the timely objection of the defense counsel; and the Court of Appeals upheld the admission thereof citing as basis,
Section 47, Rule 130 of the Rules on Evidence and Section 1(f), Rule 115 of the Rules on Criminal Procedure.
Section 47 of Rule 130 reads:
SEC. 47. Testimony or deposition at a former proceeding. The testimony or deposition of a witness deceased or unable to testify, given in
a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the
adverse party who had the opportunity to cross-examine him.
More specific however is the rule prescribed in Rule 115, Section 1(f) of the Rules of Court in respect of the admissibility in
evidence in a criminal case of the previous testimony of unavailable witnesses which reads:
Section 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled:
f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a
witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given
in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having had the
opportunity to cross-examine him;
In Toledo, Jr. vs. People,[7] this Court emphasized that the preconditions set forth in Section 47, Rule 130 for the admission of
testimony given by a witness out of court must be strictly complied with and that there is more reason to adopt such a strict rule in the case
of Section 1(f) of Rule 115, for apart from being a rule of evidence with additional specific requisites to those prescribed by Section 47,
more importantly, said provision is an implementing translation of the constitutional right of an accused person to meet the witnesses
(against him) face to face. In Tan vs. Court of Appeals,[8] it was ruled that unable to testify or for that matter unavailability, does not cover
the case of witnesses who were subpoenaed but did not appear. It may refer to inability proceeding from a grave cause, almost amounting
to death, as when the witness is old and has lost the power of speech. It does not refer to tampering of witnesses.
The threshold question then is the admissibility of the sworn statement of Ricardo Cariaga which was attached to DLPCs position
paper in the labor case filed by Jonathan Cariaga against it for illegal dismissal.
The records reveal that witness Ricardo Cariaga was subpoenaed only once and did not appear to testify in the criminal case against
petitioner. Concededly, this witness was not deceased or out of the Philippines. In fact, the private prosecutor informed the court that he is
in Sultan Kudarat,[9] and previously, his wife informed the sheriff that he was in Sultan Kudarat which is in Cotabato, a mere four hours
drive from Davao City. Against this backdrop, can this witness be categorized as one that cannot be found despite due diligence,
unavailable or unable to testify. We are inclined to rule in the negative and reverse the Court of Appeals on this point.
It must be emphasized that this rule is strictly complied with in criminal cases, hence, mere sending of subpoena and failure to
appear is not sufficient to prove inability to testify. The Court must exercise its coercive power to arrest.[10] In the instant case, no efforts
were exerted to have the witness arrested which is a remedy available to a party-litigant in instances where witnesses who are duly
subpoenaed fail to appear. On this score alone, the sworn statement of Ricardo Cariaga should not have been admitted as evidence for the
prosecution, and we shall no longer delve into the other aspects of this rule.
In his second assignment of error, petitioner assails the testimony of prosecution witness Florencio Siton alias Canuto Duran, the
undercover agent, as not credible because it is allegedly inconsistent in very material and pivotal details from the sworn statement he made
at the police station and that he is admitted by the prosecution to be a paid witness. According to petitioner, Sitons testimony was
overhauled and corrected to meet the crisis created by eyewitness Ricardo Cariagas non-appearance in court. Petitioner argues further that
Siton had thousands of reasons to vary or exaggerate or pervert the truth in his testimony because he admitted that he was given by DLPC
through Mr. Aboitiz, a 15 KVA transformer worth P15,000.00 to P18, 000.00 and he also admitted on cross-examination that after the
hearing he (Mr. Aboitiz) will hire me as an employee or that he will give me privilege.
He alleges that Siton never mentioned in his sworn statement that he bought anything directly from petitioner and only stated that the
latter was around when he bought some wires and lightning arresters from Bondying and Bebing Tumali, and then claimed on the witness
stand that he had direct dealings with petitioner. Siton also failed to state in his sworn statement that he went to the house of petitioner to
purchase DLPC materials; and he mentioned therein that the arrangement was that the materials will be delivered three days after payment,
but in his testimony, the materials were delivered upon payment.
As we have so frequently ruled, the trial judge who sees and hears witnesses testify has exceptional opportunities to form a correct
conclusion as to the degree of credit which should be accorded their testimonies. [11] Next, the rule has also always been that the
contradictions between the contents of an affiants affidavit and his testimony on the witness stand do not always militate against the
witness credibility because we have long taken judicial notice that affidavits, which are usually taken ex parte, are often incomplete and
inaccurate.[12] Indeed, a sworn statement taken ex parte is generally considered to be inferior to a testimony given in open court as the
latter is subject to the test of cross examination.[13]
We have carefully gone over the records and evidence in this case and we are persuaded that Sitons testimony in court deserves
credence. We further find the same sufficient for conviction. Siton was consistent and straightforward in his testimony and had not been
shaken by the lengthy and exhaustive cross-examination by the defense counsel. Having thoroughly convinced the trial and appellate
courts as well as this Court of the truth of his testimony, we do not see how he could have fabricated the entire story. The fact that he
stated on direct examination that he corrected his statement and that he was offered compensation for his undercover work does not
necessarily discredit him. There is no rule of evidence to the effect that omission of certain particulars in a sworn statement would estop an
affiant from making an elaboration thereof or from correcting inaccuracies during the trial. It appears that he was paid for his services
rendered as an undercover agent and not for purposes of concocting a story and imputing a crime as that made out in the
information. Similarly, the alleged inaccuracies in the testimony of Siton in open court relating to such minute details as whether the
petitioners house was two-stories high and located in a corner are too negligible to consider.
Finally, we reject petitioners claim that the testimonies of three witnesses for the prosecution, namely, Sauro, Saligan and Aboitiz,
engendered reasonable doubt sufficient to exculpate him. He points out that Rodolfo Sauro, gang crew supervisor of petitioner
testified that he has not reported any missing materials in the truck driven by the petitioner; that Luis Aboitiz testified that he asked
Estelito Saligan to conduct investigation if there were materials missing `but the latter came out with the report that he could not find any
missing materials; and that Estelito Saligan, head of Materials Management Department of the DLPC confirmed on cross-examination that
there were no properties lost or missing.
However, a more accurate reading of the testimonies of the said witnesses reveals that Rodolfo Sauro[14] testified that petitioner is
permanently assigned as driver to the S-143 truck; that he is in charge of all the equipment and supplies stored in the truck; that there were
always reserve materials kept in the truck for emergency operations during the night and that he trusted him that these materials were
beingused for emergencies.[15] He also testified that he took Jonathans word that the reserve materials were used for emergencies because
he found him trustworthy.[16] On the other hand, Engr. Estelito Saligan was recalled to the witness stand to clarify Mr. Aboitizs statement
that he was ordered to make inventories and that he did not find any missing. He clarified that he only inventoried the materials inside the
warehouse which are within his jurisdiction, but he did not conduct inventory of materials or properties already in the possession of the
operations department[17] of which petitioner belonged to. In sum, nothing in the cited testimonies confirm petitioners insistence that there
were no stolen electrical supplies and materials from DLPC.
In fine, we are satisfied that the participation of the petitioner in the commission of the crime at bar was well established by the
testimony of witness Siton. In the determination of the sufficiency of evidence, what matters is not the number of witnesses but their
credibility and the nature and quality of their testimonies.[18] It is axiomatic that witnesses are weighed, not numbered and the testimony of
only one witness, if credible and positive and if it satisfies the court beyond reasonable doubt, is sufficient to convict. The inadmissibility
of Ricardo Cariagas sworn statement as discussed above will not exculpate him.
The defense, verily, anchors itself on the bare denial of petitioner of the specific acts imputed by the prosecution against
him. Certainly, this negative assertion cannot prevail over the unimpeached testimony of the prosecution witness, Florencio Siton alias
Canuto Duran describing in sufficient detail the active participation of petitioner in the commission of the crime charged. As aptly
observed by the trial court:
The accuseds defense consisted of a general denial; that the items alleged by the prosecution as having been pilfered from DLPC were
available in any store selling electrical supplies. Despite having been positively pointed to as the person who sold small electrical wires,
lightning arresters and a roll of Electrical Wire No. 2 that were pilfered from DLPC to Canuto Duran (Siton), thru Ricardo Cariaga, he did
not categorically deny the imputation: he merely declared that he did not know Siton (he did not say that he did not know Canuto Duran)
nor did he say that he did not sell anything to Canuto Duran thru Ricardo Cariaga. As a rule, positive testimony as to a particular fact,
uncontradicted by anyone, should control the decision of the court (Ko Tieck vs. People, L-48535-36, Dec. 21, 1991).
We note that the information alleged that petitioner was an employee of DLPC; that he had access to the electrical supplies of said
company; and that with grave abuse of confidence, he stole electrical materials belonging to DLPC. The prosecution established that
petitioner who was permanently assigned as driver of Truck S-143 had charge of all the DLPC equipment and supplies kept in his vehicle,
including lightning arresters, cut-out and wires, which were generally used for the installation of transformers and power lines; and
specifically stored therein for emergency operations at night when the stockroom is closed. While the mere circumstance that the petitioner
is an employee or laborer of DLPC does not suffice to create the relation of confidence and intimacy that the law requires to designate the
crime as qualified theft, it has been held that access to the place where the taking took place or access to the stolen items changes the
complexion of the crime committed to that of qualified theft. [19] Thus, theft by a truck driver who takes the load of his truck belonging to
his employer is guilty of qualified theft[20] as was proven in this case. The trial court correctly considered petitioners use of a motor vehicle
in the commission of the crime as a generic aggravating circumstance thus raising the penalty to its maximum. [21] While the aggravating
circumstance of by means of motor vehicle was not alleged in the information, there is evidence that the same was employed to facilitate
the commission of the crime. A generic aggravating circumstance may be proved even if not alleged. [22] The theft could not have been
effected without the aid of the motor vehicle,[23] as proven by the prosecution, the service truck was used in storing and then transporting
the stolen electrical materials to the place where they were sold.
We now come to the correctness of the penalty imposed. The trial court meted on petitioner an indeterminate penalty ranging from
ten (10) years, eight (8) months and one (1) day, of prision mayor, as minimum, to eighteen (18) years, two (2) months and twenty one
(21) days of reclusion temporal as maximum. Since the value of the electrical materials is P7,038.96, the imposable penalty for the felony
of theft is prision correccional in its medium and maximum periods in accordance with Article 309, paragraph 2 of the Revised Penal
Code.[24] However, under Article 310 of the Revised Penal Code,[25] the crime of qualified theft is punished by the penalties next higher by
two (2) degrees than that specified in Article 309 of the Revised Penal Code. Under Article 25 of the Revised Penal Code, two (2) degrees
higher than prision correccional in its medium and maximum periods is prision mayor in its maximum period to reclusion temporal in its
minimum period which is ten (10) years and one (1) day to fourteen (14) years and eight (8) months. Considering there is one generic
aggravating circumstance, the penalty should be reclusion temporal in its minimum period. Applying the Indeterminate Sentence Law, the
correct penalty is eight (8) years, eight (8) months and one (1) day of prision mayor as minimum to thirteen (13) years, one (1) month
and eleven (11) days of reclusion temporal as maximum.
WHEREFORE, the decision of the Court of Appeals dated April 24, 1995 is hereby AFFIRMED with the MODIFICATION that
the penalty is reduced to EIGHT (8) years, EIGHT (8) months and ONE (1) day of prision mayor as minimum to THIRTEEN (13) years,
ONE (1) month and ELEVEN (11) days of reclusion temporal as maximum.
SO ORDERED.
[G.R. No. 138954. November 25, 2004]
ASUNCION GALANG ROQUE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the decision of the Court of
Appeals in CAG.R. CR No. 20411, entitled People of the Philippines vs. Asuncion Galang Roque, which affirmed in toto the decision of
the Regional Trial Court (RTC) of Guagua, Pampanga, Branch 49, where petitioner was found guilty of the crime of qualified theft.
In an information dated December 3, 1990, the petitioner was charged with qualified theft in the Regional Trial Court of Guagua
Pampanga, Branch 49. The Information reads as follows:
That on or about the 16th day of November, 1989, in the municipality of Floridablanca, province of Pampanga, Philippines and within the
jurisdiction of his Honorable Court, the above-named accused ASUNCION GALANG ROQUE, being then employed as teller of the Basa
Air Base Savings and Loan Association Inc. (BABSLA) with office address at Basa Air Base, Floridablanca, Pampanga, and as such was
authorized and reposed with the responsibility to receive and collect capital contributions from its member/contributors of said
corporation, and having collected and received in her capacity as teller of the BABSLA the sum of TEN THOUSAND PESOS
(P10,000.00), said accused, with intent of gain, with grave abuse of confidence and without the knowledge and consent of said
corporation, did then and there willfully, unlawfully and feloniously take, steal and carry away the amount of P10,000.00, Philippine
currency, by making it appear that a certain depositor by the name of Antonio Salazar withdrew from his Savings Account No. 1359, when
in truth and in fact said Antonio Salazar did not withdr[a]w the said amount of P10,000.00 to the damage and prejudice of BABSLA in the
total amount of P10,000.00, Philippine currency.
All contrary to law.[1]
The evidence of the prosecution consisted of the testimonies of three witnesses, namely: Antonio Salazar, Rosalina de Lazo and
Reynaldo Manlulu and Exhibits A to G with submarkings.
The first prosecution witness, Antonio Salazar (Salazar) is a member/depositor of the Basa Air Base Savings and Loan Association
Inc. (BABSLA) as evidenced by his passbook No. 1359. He was made to sign two ledgers when he opened his savings account. On
November 16, 1989, Salazar made a deposit of P2,000 at the BABSLA; however, he did not make any withdrawal, nor did he authorize
anyone to do the same on that date or on November 17, 1989 or for the whole month of November of that year. Salazar disclosed that
around July 1990 he heard that the funds of other depositors were missing inside the BABSLA and were supposedly clandestinely
circulating around the base. Prodded by this news, and considering that the balance in his passbook was P46,000, he went to the BABSLA
to withdraw P40,000, but was informed that his balance at the BABSLA was insufficient to cover the withdrawal. He was not allowed to
withdraw. Rosalina de Lazo, the general manager, informed him that several withdrawals were made on his account amounting
to P30,500, as evidenced by three (3) withdrawal slips. Included among these withdrawal slips is one with the amount of P10,000, dated
November 16, 1989. Salazar claimed that the signature appearing on said withdrawal slip was not his signature. He does not personally
know who made the withdrawal of P10,000. Salazar assumed that the one in control of the funds made the withdrawal. [2]
The second prosecution witness was the general manager of the BABSLA in the person of Rosalina de Lazo (de Lazo). She has held
her position as general manager since 1983. De Lazo averred that the BABSLA had only one teller, and that the petitioner, Asuncion
Galang Roque, held that job from 1989 up to the last working day of June 1990. She added that the petitioner had not been absent from
work, particularly in 1989. Sometime in July 1990, she met MSgt. Antonio Salazar, who was complaining that the amount of P30,500 was
missing from his account. A comparison of the banks ledger and his passbook manifested that there were three (3) withdrawals appearing
on the ledger that do not appear in his passbook, inclusive of the withdrawal made on November 16, 1989. She saw the three (3)
withdrawal slips and in the withdrawal slip dated November 16, 1989 the initial after the figure 11-17-89 is the customary initial of the
petitioner. She claimed that she was familiar with the customary initial of the petitioner. The withdrawal slip dated November 16, 1989
was made after 3:00 oclock in the afternoon of the same day but was stamped 11-17-89, as it is bank regulation that all transactions made
after 3:00 p.m. will be entered in the book the next day.
De Lazo further testified that at the commencement of the business hour, petitioner gets cash from the treasurer and her beginning
cash on November 17, 1989 per Tellers Daily Report was P355,984.53 which she used to serve all kinds of transactions pertaining to
withdrawals. The initial over the typewritten name agroque is the customary initial of the petitioner, Asuncion Galang Roque. De Lazo
claimed to be familiar with it. At the end of the work day petitioner prepared the Abstract of Payment, which is a summary of the
withdrawals the teller paid that day as evidenced by several withdrawal slips.
De Lazo testified that before the petitioner went on forced leave petitioner sought her assistance because she feared she would be
removed from work. She claimed that petitioner admitted to taking some money from the depositors, including the account of Sgt. Salazar.
Unable to help petitioner, she referred her to Col. Dunilayan, the president and chairman of the BABSLA, who told her to return the
money immediately. Petitioner told Col. Dunilayan that she would return the money. She failed to do so. During the same meeting,
petitioner, in the presence of Col. Dunilayan and de Lazo, prepared a list containing the names of members from whose accounts she took
money. Petitioner gave the list to Col. Dunilayan. When petitioner failed to return the money they decided to file a case against her. In the
morning of November 17, de Lazo was already aware of the taking of the P10,000 that occurred the day prior. Since she had full trust and
confidence in petitioner, and did not fear that this anomaly would persist, she did not ask for the presentation of the passbook so that the
corresponding entries could be made in order to avoid a discrepancy between the ledger and the passbook, nor did she send notice to
Antonio Salazar. It is the practice of the bank that all withdrawals require the presentation of the passbook. This was the first instance that
a transaction was not recorded in the passbook. There are only a few cases wherein she (de Lazo) allows deposits to be made without the
presentation of the passbook on the same day. In these instances she just requires the depositor to come some other time for the recording
of the transaction in the passbook. As of the date of this testimony, the BABSLA had already paid deposits on accounts from which the
petitioner had taken money, including that of Antonio Salazar as indicated in the bank records.[3]
The third and last prosecution witness is Reynaldo Manlulu, who is both the treasurer and a member of the board of directors of the
BABSLA. He testified that petitioner was the teller of the BABSLA in November 1989 and that she reported for work on the 17 th of that
month. He intimated that on that date petitioner got a beginning cash from him amounting to P355,984.53, including all the the
transactions that occurred after 3:00 p.m. of the preceding day. This beginning cash can be seen in the Tellers Daily Report. The signature
above the typewritten name agroque is petitioners because she signed it in his presence. Apart from the beginning cash, he also turned over
to petitioner the transactions that took place after 3:00 p.m. of the preceding day, particularly the withdrawal slip of MSgt. Salazar. At the
end of the business day of November 17, 1989, she prepared an abstract of payment and in this abstract the initial over the typewritten
name agroque is the initial of the petitioner because she signed it in his presence. Petitioner paid the withdrawal of P16,300 evidenced by
the withdrawal slips attached to the abstract of payment. After she prepared the abstract of payment, petitioner turned over to him the cash
and all the transactions that were taken after 3:00 p.m. A Cash Count shows the total cash that petitioner turned over to him. The initial
over the typewritten name agroque is petitioners because it was signed in his presence.[4]
The evidence for the petitioner consists of the testimony of the petitioner herself and that of Atty. Norbin Dimalanta and Exhibits 1
to 5 with sub-markings.
Petitioner, Asuncion Galang Roque, testified that she was employed as teller at the BABSLA from 1979 until her termination in
1990. In the morning she gets the money from the treasurer and they do a cash count which is reflected in the Tellers Daily Report and at
3:00 p.m. she prepares and submits an abstract of payment. However, before making the abstract, she and the treasurer conduct a cash
count and the remaining cash is turned over to the treasurer. As a teller, she received deposits and payments, deposits of checks and
payments of loans. She does not discharge any memorandum or withdrawals unless both the manager and the treasurer previously approve
it. Depositors cannot withdraw after 3:00 p.m., unless they talk to the manager or treasurer. Withdrawals done after 3:00 p.m. are reflected
as transactions of the following day. She insisted that the charge against her of stealing and carrying away P10,000 is false since she did
not prepare the withdrawal slip dated November 16, 1989 which involves the account of Antonio Salazar. She also denied forging the
signature of Salazar and affixing her initial. Petitioner also disowned the initial in the abstract of payment dated November 17, 1989 and
the initials on several withdrawal slips. She claimed to be innocent and contended that Rosalina de Lazo is the one who is guilty because
she was only used by the president. The latter is still connected with the BABSLA while the petitioner was terminated in June 1990.
Throughout the eleven years that petitioner worked as a teller at the BABSLA, she had never been absent from work or required by
the treasurer to explain any discrepancy or anomaly related to the cash that she handled as a teller. Before her dismissal, petitioner was not
suspended by the board of directors of the BABSLA during the investigation of her case. She was put on forced leave which eventually led
to her termination. The manager was also supposed to be on forced leave. However, when the manager reported for work and some
members protested and filed a petition, the president asked them to retract their statements by means of executing an affidavit of
desistance. Even though petitioner received notice regarding the investigation, she did not attend because she knew the personalities of the
members of the committee. Only the accused and the complainants whose accounts were withdrawn were investigated. She filed a
complaint with the Department of Labor in connection with her dismissal but it was dismissed because she did not pursue it. Apart from
the president, there were seven (7) members of the board of directors of the BABSLA in 1990: Col. Dunilayan, Col. Sanchez, MSgt.
Romero, Sgt. Manlulu, Sgt. Torato, Mrs. Bagasbas and Capt. Baluyut. Capt. Baluyut was subsequently dimissed as a member of the board
of directors.[5]
The second witness for the petitioner was Atty. Norbin Dimalanta. He averred that he only gave advice regarding the legality of the
possible dismissal of the petitioner based on the evidence the committee gathered. He was present when the evidence and witnesses were
presented. Proper notices were sent to the accused. The chairman of the committee, Leonardo Tolentino, concluded that the initials on the
withdrawal slips were similar to the petitioners initials. He did not suggest the consultation of a handwriting expert on forgery since there
were other pieces of evidence showing that the petitioner figured in the anomaly because several witnesses identified the figures appearing
in the original copy of the questioned receipt as written by the petitioner. His conclusion that no one else could have done it except for
Mrs. Roque was arrived at only after the investigation of the records and documents presented to the committee. [6]
The RTC found the petitioner guilty beyond reasonable doubt of the crime charged, on the following grounds:
After a careful evaluation of the evidence presented by both sides, the Court finds that the prosecution has proved the guilt of the accused
beyond reasonable doubt. This finding is supported by the categorical testimony of prosecution witness Reynaldo Manlulu who testified
that on November 17, 1989 accused received from him a beginning cash in the amount of P355,984.53 which is shown in a Tellers Daily
Report (Exh. D) prepared by the accused and signed by the accused in his presence ( TSN, March 25, 1993, page 3). At the close of
business day of November 17, 1989 the accused also prepared an Abstract of Payment (Exh. E) and she signed it in his presence (Id., page
6). Aside from the beginning cash he also turned over to the accused the transactions that took place after 3:00 oclock of the preceding day
particularly the withdrawal slip of M/Sgt. Salazar (Id., page 4) so that it can be entered on the records on that very date as bank regulation
requires that transactions occurring after 3:00 oclock of a particular day are recorded the following day. This explains why although the
questionable withdrawal slip was dated November 16, 1989 it was stamped paid on November 17, 1989, for record purposes. Since it was
the accused who gave Reynaldo Manlulu the withdrawal slip dated November 16, 1989 the presumption is that, being in possession of said
withdrawal slip before its delivery to Reynaldo Manlulu, the accused is the one who prepared the said withdrawal slip. This particular
transaction was turned over to him by the accused the previous day (Id., page 5).
The Tellers Daily Report dated November 17, 1989 reflects, among others, a total withdrawal on that date in the amount of P16,300.00.
This amount is the totality of withdrawal after adding the seven (7) legitimate withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and
the questionable withdrawal of P10,000.00 (Exh. C). On the other hand, the Abstract of Payment (Exh. E) reflects, among others, a savings
withdrawal of P16,300.00 which tallies with the Tellers Daily Report of that date and with the seven (7) withdrawal slips.
The defense interposed by the accused is one of denial. She claimed that all the initials in the withdrawal slip of P10,000.00 (Exh. C), on
the Tellers Daily Report (Exh. D), in the Abstract of Payment (Exh. E) as well as on the list of names of depositors (Exh. G) are not hers,
implying, therefore, that these documents were prepared by somebody else. To emphasize that the initials on Exhibits C, D, E, and G are
not hers, accused during the hearing on March 18, 1993 wrote six (6) of her initials in a piece of paper (Exh. 1). However, the Court is not
in a position to state whether the initial in Exhibit 1 is the same or different from the initials in Exhibits C, D, E, and G not being an expert
along that line. Accused could have very well availed of court processes to request the NBI or PNP Crime Laboratory to determine
whether or not the initials in Exhibits C, D, E, and G are hers by comparing the same with similar documents on file with the BABSLA
which are abundant as said documents are prepared daily and accused was, prior to her dismissal, the only teller of BABSLA for over a
year and has therefore accomplished a lot of these documents. Unfortunately, accused did not make any attempt to do so. At any rate,
denial cannot prevail over the affirmative and categorical testimony of Reynaldo Manlulu who stated that accused turned over to him the
questionable withdrawal slip on November 16, 1989 and it was in turn returned to the accused by said witness the following day
November 17, 1989 in order that said transaction may be reflected on the records on that date. Said witness also positively testified that the
accused initialed in his presence the Tellers Daily Report and the Abstract of Payment which said accused prepared on November 17,
1989. Denial is a self-serving negative evidence that cannot be given greater weight than the declaration of credible witnesses who testified
on affirmative matters (People vs. Carizo, 233 SCRA 687). Like alibi, denial is inherently a weak defense and cannot prevail over the
positive and credible testimony of the prosecution witnesses (People vs. Macagaleng, 237 SCRA 299).
Accused after denying that the initials over the typewritten name A. G. Roque found in several exhibits introduced by the prosecution are
not hers concentrated [on] her defense that Rosalina de Lazo, another prosecution witness, and the General manager of BABSLA was the
author of the anomaly being imputed against her because said witness has committed certain anomalous transactions at the BABSLA in
the past. Accused, however, never mentioned a word about the testimony of Reynaldo Manlulu which actually proved her undoing. She
failed to controvert nor even comment on the damaging testimony of Reynaldo Manlulu that she turned over to him the questionable
withdrawal slip and signed and/or placed her initial on the Tellers Daily Report and Abstract of Payment in his presence. Accused did not
present any evidence that Reynaldo Manlulu had ulterior motives to testify falsely against her. When there is no evidence indicating that
the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved, and his testimony
is entitled to full faith and credit. (People vs. Perciano, 233 SCRA 393). Accused also failed to controvert the testimony of Rosalina de
Lazo that accused confessed before Col. Dunilayan, the president of BABSLA that she took money from some depositors which she
promised to return and in fact wrote down the names of said depositors before Col. Dunilayan in a piece of paper which she handed to him.
This fact and [it being] taken in the light that she failed to appear for investigation after the anomaly was discovered despite due notice,
and her lack of interest to pursue a case she filed before the Department of Labor which caused its dismissal, do not speak well of her
claim of innocence.
Art. 309, paragraph 2 of the Revised Penal Code provides that the penalty for theft is prision correccional in its medium and maximum
periods if the value property stolen is more than P6,000.00 but does not exceed P12,000.00 and since the accused is charged for qualified
theft, and the property or money stolen is P10,000.00, under Art. 310 the penalty prescribed for this crime is increased two (2) degrees
higher, the basis of which is Art. 309, paragraph 2. Therefore the corresponding penalty is prision mayor maximum to reclusion temporal
minimum. However, as the accused is qualified [under] the indeterminate sentence law, the prescribed penalty for her in this case is prision
mayor as minimum to reclusion temporal as maximum.
WHEREFORE, judgment is rendered finding the accused guilty beyond reasonable doubt of the crime of qualified theft as charged and she
is hereby sentenced to suffer the penalty of 6 years and 1 day of prision mayor as minimum to 12 years, 2 months and 1 day of reclusion
temporal as maximum, and to indemnify the offended party Basa Air Base Savings & Loan Association Inc. in the amount of P10,000.00,
and to pay the costs.
SO ORDERED.[7]
On appeal, the appellate court found the conviction in accord with law and the evidence and affirmed the decision of the RTC in
toto. The Court of Appeals, quoting at length the lower court, reasoned, thus:
The Court fully agrees with the court a quo in finding that appellants guilt has been proven beyond reasonable doubt. As aptly pointed out
by the lower court:
This finding is supported by the categorical testimony of prosecution witness Reynaldo Manlulu who testified that on November 17, 1989
accused received from him a beginning cash in the amount of P355,984.53 which is shown in a Tellers Daily Report (Exh. D) prepared by
the accused and signed by the accused in his presence (TSN, March 25, 1993, page 30). At the close of business day of November 17,
1989 the accused also prepared an Abstract of Payment (Exh. E) and signed it in his presence (Id., page 6). Aside from the beginning cash
he also turned over to the accused the transaction that took place after 3:00 oclock of the preceding day particularly the withdrawal slip of
M/Sgt. Salazar (Id., page 4) so that it can be entered on the records on that very date as bank regulation required that transaction occurring
after 3:00 oclock of a particular day are recorded the following day. This explains why although the questionable withdrawal slip was
dated November 16, 1989 it was stamped paid on November 17, 1989 for record purposes. Since it was the accused who gave Reynaldo
Manlulu the withdrawal slip dated November 16, 1989 the presumption is that being in possession of said withdrawal slip before its
delivery to Reynaldo Manlulu the accused is the one who prepared the said withdrawal slip. This particular transaction was tuned over to
him by the accused the previous day (Id., page 5).
The Tellers Daily Report dated November 17, 1989 reflects among others a total withdrawal on that date in the amount of P16,300.00.
This amount is the totality of withdrawal after adding the seven (7) legitimate withdrawals amounting to P6,300.00 (Exhs. E-2 to E-8) and
the questionable withdrawal of P10,000.00 (Exh. C). On the other hand the Abstract of Payment (Exh. E) reflects among others a savings
withdrawal of P16,300.00 which tallies with the Tellers Daily Report of that date and with the seven (7) withdrawal slips.
Appellants defense is one of denial. She claims that the initials in the withdrawal slip of P10,000.00 (Exh. C) the Tellers Daily Report
(Exh. D) the Abstract of Payment (Exh. E) and list of names of depositors (Exh. G) are not hers thus implying that these documents were
prepared by somebody else. To bolster her claim she wrote her initials six (6) times on a piece of paper during the hearing on March 18,
1993 (Exh. 2) probably for comparison purposes. Admittedly there are noticeable differences between her initials in Exhibit 2 and those
appearing on Exhibits C to G. This is of course understandable. It was not difficult for appellant to feign her initials in Exhibit 2 in order to
mislead the Court.
At any rate no less than Rosalina de Lazo who as general manager of BABSLA is familiar with the initials has positively identified the
initials on Exhibits C to G as hers. Likewise, Reynaldo Manlulu categorically stated not only that the questionable withdrawal slip (Exh.
C) was turned over to him by appellant on November 16, 1989 and returned to her on November 17, 1989 but also that the Tellers Daily
Report (Exh. D) and the Abstract of Payment (Exh. E) were initialed by her in his presence. Needless to say the initials in Exhibits C, D,
and E bear such similarities as would lead to the conclusion that they were prepared by one and the same person. Hence, a more worthy
and reliable evidence than the mere samples of her initials written during the trial is required to controvert the positive testimonies of
Rosalina de Lazo and Reynaldo Manlulu.
No cogent reason has been shown for this court not to give credence to the prosecution witnesses. As aptly observed by the court a quo:
Accused after denying that the initials over the typewritten name A.G. Roque found in several exhibits introduced by the prosecution are
not hers concentrated [on] her defense that Rosalina de Lazo another prosecution witness and the General Manager of BABSLA was the
author of the anomaly being imputed against her because said witness has committed certain anomalous transactions at the BABSLA in
the past. Accused however, never mentioned a word about the testimony of Reynaldo Manlulu which actually proved her undoing. She
failed to controvert nor even comment on the damaging testimony of Reynaldo Manlulu that she turned over to him the questionable
withdrawal slip and signed and/or placed her initial on the Tellers Daily Report and Abstract of Payment in his presence. Accused did not
present any evidence that Reynaldo Manlulu had ulterior motives to testify falsely against her. When there is no evidence indicating that
the principal witness for the prosecution was moved by improper motive the presumption is that he was not so moved and his testimony is
entitled to full faith and credit. (People vs. Perciano 233 SCRA 393). Accused also failed to controvert the testimony of Rosalina de Lazo
that the accused confessed before Col. Dunilayan the president of BABSLA that she took money from some depositors which she
promised to return and in fact wrote down the names of said depositors before Col. Dunilayan in a piece of paper which she handed to him.
This fact and [it being] taken in the light that she failed to appear for investigation after the anomaly was discovered despite due notice,
and her lack of interest to pursue a case she filed before the Department of Labor which caused its dismissal, do not speak well of her
claim of innocence.
In sum, the Court finds appellants conviction of the offense charged in accord with law and evidence. [8]
Petitioner now raises the following issues:
I
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT
CONVICTING PETITIONER OF THE CRIME OF QUALIFIED THEFT THROUGH FALSIFICATION OF BANK DOCUMENTS?
II
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT
CONVICTING PETITIONER OF THE CRIME OF QUALIFIED THEFT BECAUSE OF THE WEAKNESS OF THE DEFENSE
OFFERED BY PETITIONER AND NOT ON THE STRENGTH OF THE EVIDENCE OF THE PROSECUTION?
III
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT
CONVICTING PETITIONER OF THE CRIME OF QUALIFIED THEFT IN THE ABSENCE OF ANY EVIDENCE WHETHER
TESTIMONIAL OR DOCUMENTARY TO THE EFFECT THAT PETITIONER WAS SEEN OR CAUGHT IN THE ACT OF TAKING
OR CARRYING AWAY THE SUM OF P10,000.00?
IV
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT
CONVICTING PETITIONER OF THE CRIME OF QUALIFIED THEFT WHEN THE AMOUNT OF P10,000.00 WHICH
CONSTITUTES THE CORPUS DELICTI OR BODY OF THE CRIME WAS NEVER OFFERED IN EVIDENCE BY THE
PROSECUTION?
V
WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE DECISION OF THE LOWER COURT
CONVICTING PETITIONER OF THE CRIME OF QUALIFIED THEFT WHEN THE PROSECUTION FAILED TO PROVE
BEYOND REASONABLE DOUBT THE FACT OF LOSS OF THE AMOUNT OF P10,000.00 IN THE ABSENCE OF ANY AUDIT
BY AN INDEPENDENT AUDITOR?[9]
Said issues may be summed up into two:
1. Whether or not qualified theft may be committed when the personal property is in the lawful possession of the accused prior to the
commission of the alleged felony?
2. Whether or not the elements of qualified theft were proven?
First Issue
Petitioner contends:
Theft as defined in Article 308 of the Revised Penal Code requires physical taking of anothers property without violence or intimidation
against persons or force upon things.
The crime of theft is akin to the crime of robbery. The only difference is in robbery there is force upon things or violence or intimidation
against persons in taking of personal properties. In the crime of theft the taking of the personal property with intent to gain is without
violence against or intimidation of persons nor force upon things and the taking shall be without the consent of the owner. In robbery, the
taking is against the will of the owner.
Under Article 308 of the Revised Penal Code, the following are the elements of the crime of theft:
1. Intent to gain;
2. Unlawful taking;
3. Personal property belonging to another;
4. Absence of violence or intimidation against persons or force upon things.
The foregoing requirements presume that the personal property is in the possession of another, unlike estafa, [where] the possession of the
thing is already in the hands of the offender. In People vs. Lacson, 57 Phil. 325, it was held:
Commentators on the Spanish Penal Code lay great stress on the taking away, that is, getting possession in theft, laying hold of the thing,
so that if the thing is not taken away, but received and then appropriated or converted, without consent of the owner, it may be any other
crime, that of estafa for instance.
Can a person tasked to receive and collect capital contributions and having collected and received in her capacity as teller as alleged in the
information, be guilty of theft? The question should be answered in the negative. xxx[10]
Petitioners argument contradicts jurisprudence. In U.S. v. De Vera,[11] the accused, Nieves de Vera, received from Pepe, an Igorot, a
bar of gold weighing 559.7 grams for the purpose of having a silversmith examine the same, and bank notes amounting to P200 to have
them exchanged for silver coins. Accused appropriated the bar of gold and bank notes. This Court, citing Spanish and U.S. jurisprudence,
ruled that the crime committed was theft and not estafa since the delivery of the personal property did not have the effect of transferring
the juridical possession, thus such possession remained in the owner; and the act of disposal with gainful intent and lack of owners consent
constituted the crime of theft.
The principle enunciated in U.S. v. De Vera was reiterated in People v. Trinidad,[12] thus:
The defendant received a finger ring from the offended party for the purpose of pledging it as security for a loan of P5 for the benefit of
said offended party. Instead of pledging the ring, the defendant immediately carried it to one of her neighbors to whom she sold it for P30
and appropriated the money to her own use.
xxx
The defendant is undoubtedly guilty of having sold the ring without authority and the only question which presents some difficulty is to
determine whether the crime committed was theft or whether it should be classified as estafa. The question is discussed at length in the
case of United States vs. De Vera (43 Phil., 1000) in which the court, citing various authorities, held that "When the delivery of a chattel or
cattle has not the effect of transferring the juridical possession thereof, or title thereto, it is presumed that the possession of, and title to, the
thing so delivered remains in the owner; and the act of disposing thereof with intent of gain and without the consent of the owner
constitutes the crime of theft." This view seems to be supported both by Spanish and American authorities.
xxx
Though the facts in the present case differs somewhat from those in the De Vera case, the underlying principle is the same in both cases:
the juridical possession of the thing appropriated did not pass to the perpetrators of the crime, but remained in the owners; they were
agents or servants of the owners and not bailees of the property. (See 17 R. C. L., 43, par. 49.) But it has been suggested that one of the
essential elements of the crime of theft is that the intent to misappropriate the property taken must exist at the time of the asportation and
that while this element clearly existed in the De Vera case, it is not as apparent in the case at bar.
We may agree that in cases such as the present the crime committed should not be regarded as theft unless the circumstances are such that
it must be presumed that the intent to convert or misappropriate the property existed at the time it was received by the perpetrator of the
crime. But the existence of such intent is, in our opinion, fully as apparent in this case as it was in the De Vera case; the defendant,
according to her own statement, offered the ring for sale immediately after its delivery to her, and we are forced to conclude that she did
not receive it with honest intentions, but had the disposal of it in mind at the time.
In the case of People v. Locson[13] which also deals with money of a bank in the possession of its teller, the Court articulated:
Although the question is not specifically raised in the assignments of error, the court has carefully considered the classification of the
crime committed by the defendant and found it to be correctly classified by the trial court as qualified theft. The money was in the
possession of the defendant as receiving teller of the bank, and the possession of the defendant was the possession of the bank. When the
defendant, with a grave abuse of confidence, removed the money and appropriated it to his own use without the consent of the bank, there
was the taking or apoderamiento contemplated in the definition of the crime of theft.
In the case of the United States vs. De Vera (43 Phil., 1000, 1003), Justice Villamor speaking for the court said:
"The argument advanced in support of the contention of the defense is that the goods misappropriated were not taken by the accused
without the consent of the owner who had delivered them to her voluntarily, and this element being lacking, it cannot be the crime of theft.
"It is well to remember the essential elements of the crime of theft, as expounded in the textbooks, which are as follows: First, the taking of
personal property; second, that the property belongs to another; third, that the taking away be done with intent of gain; fourth, that the
taking away be done without the consent of the owner; and fifth, that the taking away be accomplished without violence or intimidation
against persons or force upon things.
"The commentators on the Spanish Penal Code, from which ours was adopted, lay great stress on the first element, which is the taking
away, that is, getting possession, laying hold of the thing, so that, as Viada says, if the thing is not taken away, but received and then
appropriated or converted without the consent of the owner, it may be any other crime, that of estafa for instance, but in no way that of
theft, which consists in the taking away of the thing, that is, in removing it from the place where it is kept by the legal owner, without the
latter's consent, that is, without obtaining for the purpose the consent of the legitimate owner."
The doctrine of the case as stated in the syllabus is as follows:
"When the delivery of a chattel or cattle has not the effect of transferring the juridical possession thereof, or title thereto, it is presumed
that the possession of, and title to, the thing so delivered remains in the owner; and the act of disposing thereof with intent of gain and
without the consent of the owner constitutes the crime of theft."
The Supreme Court of Spain in a decision of June 23, 1886 held that a shepherd, who takes away and converts to his own use several head
of the sheep under his care, is guilty of qualified theft. (Viada: Vol. 3, p. 433, 4th ed.)
In the case of People v. Isaac,[14] which involved a temporary driver of a public service vehicle, this Court pronounced:
In the case of U. S. vs. De Vera (43 Phil., 1000), this Court said that when the delivery of a chattel has not the effect of transferring the
juridical possession thereof, or title thereto, it is presumed that the possession of, and title to, the thing so delivered remains in the owner;
and the act of disposing thereof with intent of gain and without the consent of the owner constitutes the crime of theft. This, we think, is
actually the case here. For as we see it, appellant had only substituted for the regular driver of a vehicle devoted to the transportation of
passengers for a fare or compensation and therefore operated as a public utility; and while his arrangement with the owner was to turn in,
not all the fare collected, but only a fixed sum known in the trade as "boundary", still he cannot be legally considered a hirer or lessee,
since it is ordained in section 26 of the Rules of Regulations of the Public Service Commission that "no motor vehicle operator shall enter
into any kind of contract with any person if by the terms thereof it allows the use and operation of all or any of his equipment under a fixed
rental basis." In the eye of the law then, appellant was not a lessee but only an employee or agent of the owner, so that his possession of
the vehicle was only an extension of that of the latter. In other words, while he had physical or material possession of the jeepney, the
juridical possession thereof remained in the owner. Under those circumstances his disposing of the jeepney with intent of gain and without
the consent of its owner makes him guilty of theft.
Quoting from Ruling Case Law, this Court has also said in the same case:
"A felonious taking is necessary in the crime of larceny, and generally speaking, a taking which is done with the consent or acquiescence
of the owner of the property is not felonious. But if the owner parts with the possession thereof for a particular purpose, and the person
who receives the possession avowedly for that purpose has the fraudulent intention to make use of it as the means of converting it to his
own use and does so convert it, this is larceny, for in such case, the fraud supplies the place of the trespass in the taking, or, as otherwise
stated, the subsequent felonious conversion of the property by the alleged thief will relate back and make the taking and conversion
larceny.
Under this theory, appellant, who, according to his own confession, took the vehicle from its owner already with the intention of
appropriating it, should also be deemed guilty of theft. (People vs. Trinidad, 50 Phil., 65.)
In the present case, what is involved is the possession of money in the capacity of a bank teller. In People v. Locson,[15] cited above,
this Court considered deposits received by a teller in behalf of a bank as being only in the material possession of the teller. This
interpretation applies with equal force to money received by a bank teller at the beginning of a business day for the purpose of servicing
withdrawals. Such is only material possession. Juridical possession remains with the bank. In line with the reasoning of the Court in the
above-cited cases, beginning with People v. De Vera, if the teller appropriates the money for personal gain then the felony committed is
theft and not estafa. Further, since the teller occupies a position of confidence, and the bank places money in the tellers possession due to
the confidence reposed on the teller, the felony of qualified theft would be committed.
Second Issue
The elements of qualified theft include the elements of theft and any of the circumstances enumerated in Article 310 of the Revised
Penal Code[16] (RPC). The elements of theft, which is defined in Artilce 308 of the RPC, [17] are the following:
xxx there are five essential elements which constitute the crime of theft, namely: (1) Taking of personal property; (2) that said property
belongs to another; (3) that said taking be done with intent to gain; (4) that, further, it be done without the owners consent; and (5) finally,
that it be accomplished without the use of violence or intimidation against persons, nor of force upon things. [18]
The specific qualifying circumstance in Article 310 of the RPC which the information indicated was that the felony was committed
with grave abuse of confidence. Hence, to warrant a conviction, the prosecution should have proven the following elements:
1. Taking of personal property.
2. That the said property belongs to another.
3. That the said taking be done with intent to gain.
4. That it be done without the owners consent.
5. That it be accomplished without the use of violence or intimidation against persons, nor of force upon things.
6. That it be done with grave abuse of confidence.
Regarding the first element, the taking of personal property, the prosecution was not able to present direct evidence that petitioner
took the P10,000 on November 16, 1989. The prosecution attempted to prove the taking through circumstantial evidence. One of the
pieces of evidence that the prosecution adduced and the trial court and Court of Appeals relied on heavily for the conviction was the
withdrawal slip for P10,000, dated November 16, 1989. Antonio Salazar disowned the signature on the withdrawal slip. However, he also
indicated that he did not know who made the withdrawal. Rosalina de Lazo testified that the initial on the withdrawal slip, written after the
figure 11-17-89, was the customary signature of petitioner. She, however, did not intimate the significance of petitioners initial on the
withdrawal slip. A careful inspection of all the withdrawal slips,[19] including the withdrawal slip stated above, shows that the date and the
initial of petitioner were written across the stamped word paid. This indicates that petitioners initial was placed in her capacity as a teller
which, therefore, only proves that this transaction passed through her hands in such capacity. It does not in any manner show that
petitioner prepared the withdrawal slip or that the proceeds of the withdrawal increased her patrimony.
The trial court articulated and the Court of Appeals quoted in toto the following:
Since it was the accused who gave Reynaldo Manlulu the withdrawal slip dated November 16, 1989 the presumption is that, being in
possession of said withdrawal slip before its delivery to Reynaldo Manlulu, the accused is the one who prepared the said withdrawal slip.
This particular transaction was turned over to him by the accused the previous day[20]
This presumption is without basis in law. Under the rules of evidence, there is a fixed number of presumptions. These are contained
in Sections 2 and 3 of Rule 131, of the Revised Rules of Court. Courts of law should not be too ready to generate other presumptions.
After a thorough review of all the presumptions enumerated in Sections 2 and 3 of Rule 131, the presumption that comes closest to the one
the RTC and Court of Appeals relied on is paragraph (j), Section 3 of Rule 131, which reads:
That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act;
otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him;
In a long line of cases,[21] this Court has always applied this presumption to a situation where property has been stolen and the stolen
property is found in the possession of the accused. In these cases the possession of the accused gives rise to the presumption that the
accused is the taker of the stolen property. In the presumption availed of by the lower courts the property found in the possession of the
accused, which is the withdrawal slip, is not stolen property. Furthermore, the presumption the lower court made was not that the petitioner
stole anything, but rather that the petitioner was the maker of the withdrawal slip. It is plain that the presumption used by the lower court
and the one found in paragraph (j), Section 3 of Rule 131 are different. Consequently, there is no basis for the finding that the withdrawal
slip was prepared by the petitioner.
Another piece of evidence offered to prove petitioners taking is her extrajudicial confession to de Lazo and Col. Dunilayan wherein
she allegedly admitted taking money from the accounts of several members of the BABSLA and the list of people from whose accounts
she took money, which list petitioner supposedly prepared in the presence of de Lazo and Col. Dunilayan. In the testimony of Rosalina de
Lazo, all she mentioned was that petitioner confessed to having taken sums of money from the accounts of several depositors, including
the account of Sgt. Salazar. Nowhere in her testimony did she mention that petitioner confessed the exact date on which she took the
money, nor the amount she took from the account of Sgt. Salazar. It cannot be deduced from the alleged verbal confession of petitioner
that she was confessing a specific taking of P10,000 from the account of Sgt. Salazar on November 16, 1989. She also saw petitioner
prepare the list of depositors from whose accounts she had taken some money. Again, a perusal of the handwritten list allegedly prepared
by petitioner does not disclose any relation to the specific taking alleged in the information. All that was written on the list, among other
names and figures, was the name Salazar, Antonio and the number fifteen (15) to the right of the name. It must be kept in mind that the
information was for a theft of P10,000 that occurred on the 16th of November 1989. The list does not mention the date on which the money
was taken. Neither does it disclose the precise amount that was taken.
The other pieces of evidence such as the Tellers Daily Report and Abstract of Payment, to which witnesses de Lazo and Salazar both
testified as containing the customary initials of petitioner, only corroborate the withdrawal slip. They merely reveal that on the 16 th of
November 1989, a withdrawal was made on the account of Sgt. Antonio Salazar and that this withdrawal passed through the hands of
petitioner in her capacity as a teller of the BABSLA. Again, they prove neither that petitioner prepared the subject withdrawal slip nor that
she took the P10,000 on that date.
From the foregoing discussion it is plain that the prosecution failed to prove by direct or sufficient circumstantial evidence that there
was a taking of personal property by petitioner.
A discussion of the other elements of qualified theft mentioned above is not necessary. Even if the other elements were satisfactorily
proven, the first and most basic element of qualified theft was not established. The prosecution was, therefore, unsuccessful in proving
beyond reasonable doubt that the petitioner committed the crime of qualified theft.
WHEREFORE, the petition is GRANTED and the decision and resolution of the Court of Appeals dated December 28, 1998 and
May 26, 1999, respectively, are REVERSED and SET ASIDE. Petitioner, Asuncion Galang Roque, is ACQUITTED of the crime of
qualified theft charged in the information. No costs.
SO ORDERED.
[G.R. No. 141485. June 30, 2005]
PABLITO MURAO and NELIO HUERTAZUELA, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioners pray for the reversal of the Decision of the
Court of Appeals in CA-G.R. CR No. 21134, dated 31 May 1999,[1] affirming with modification the Judgment of the Regional Trial Court
(RTC) of Puerto Princesa City, Palawan, in Criminal Case No. 11943, dated 05 May 1997, [2] finding petitioners guilty beyond reasonable
doubt of the crime of estafa under Article 315(1)(b) of the Revised Penal Code.
Petitioner Pablito Murao is the sole owner of Lorna Murao Industrial Commercial Enterprises (LMICE), a company engaged in the
business of selling and refilling fire extinguishers, with branches in Palawan, Naga, Legaspi, Mindoro, Aurora, Quezon, Isabela, and
Laguna. Petitioner Nelio Huertazuela is the Branch Manager of LMICE in Puerto Princesa City, Palawan. [3]
On 01 September 1994, petitioner Murao and private complainant Chito Federico entered into a Dealership Agreement for the
marketing, distribution, and refilling of fire extinguishers within Puerto Princesa City. [4] According to the Dealership Agreement, private
complainant Federico, as a dealer for LMICE, could obtain fire extinguishers from LMICE at a 50% discount, provided that he sets up his
own sales force, acquires and issues his own sales invoice, and posts a bond with LMICE as security for the credit line extended to him by
LMICE. Failing to comply with the conditions under the said Dealership Agreement, private complainant Federico, nonetheless, was still
allowed to act as a part-time sales agent for LMICE entitled to a percentage commission from the sales of fire extinguishers. [5]
The amount of private complainant Federicos commission as sales agent for LMICE was under contention. Private complainant
Federico claimed that he was entitled to a commission equivalent to 50% of the gross sales he had made on behalf of LMICE, [6] while
petitioners maintained that he should receive only 30% of the net sales. Petitioners even contended that as company policy, part-time sales
agents were entitled to a commission of only 25% of the net sales, but since private complainant Federico helped in establishing the
LMICE branch office in Puerto Princesa City, he was to receive the same commission as the full-time sales agents of LMICE, which was
30% of the net sales.[7]
Private complainant Federicos first successful transaction as sales agent of LMICE involved two fire extinguishers sold to Landbank
of the Philippines (Landbank), Puerto Princesa City Branch, for the price of P7,200.00. Landbank issued a check, dated 08 November
1993, pay to the order of L.M. Industrial Comml. Enterprises c/o Chito Federico, for the amount of P5,936.40,[8] after deducting from the
original sales price the 15% discount granted by private complainant Federico to Landbank and the 3% withholding tax. Private
complainant Federico encashed the check at Landbank and remitted only P2,436.40 to LMICE, while he kept P3,500.00 for himself as his
commission from the sale.[9]
Petitioners alleged that it was contrary to the standard operating procedure of LMICE that private complainant Federico was named
payee of the Landbank check on behalf of LMICE, and that private complainant Federico was not authorized to encash the said check.
Despite the supposed irregularities committed by private complainant Federico in the collection of the payment from Landbank and in the
premature withholding of his commission from the said payment, petitioners forgave private complainant Federico because the latter
promised to make-up for his misdeeds in the next transaction.[10]
Private complainant Federico, on behalf of LMICE, subsequently facilitated a transaction with the City Government of Puerto
Princesa for the refill of 202 fire extinguishers. Because of the considerable cost, the City Government of Puerto Princesa requested that
the transaction be split into two purchase orders, and the City Government of Puerto Princesa shall pay for each of the purchase orders
separately.[11] Pursuant to the two purchase orders, LMICE refilled and delivered all 202 fire extinguishers to the City Government of
Puerto Princesa: 154 units on 06 January 1994, 43 more units on 12 January 1994, and the last five units on 13 January 1994. [12]
The subject of this Petition is limited to the first purchase order, Purchase Order No. GSO-856, dated 03 January 1994, for the refill
of 99 fire extinguishers, with a total cost of P309,000.00.[13] On 16 June 1994, the City Government of Puerto Princesa issued Check No.
611437 to LMICE to pay for Purchase Order No. GSO-856, in the amount of P300,572.73, net of the 3% withholding tax.[14] Within the
same day, petitioner Huertazuela claimed Check No. 611437 from the City Government of Puerto Princesa and deposited it under the
current account of LMICE with PCIBank.[15]
On 17 June 1994, private complainant Federico went to see petitioner Huertazuela at the LMICE branch office in Puerto Princesa
City to demand for the amount of P154,500.00 as his commission from the payment of Purchase Order No. GSO-856 by the City
Government of Puerto Princesa. Petitioner Huertazuela, however, refused to pay private complainant Federico his commission since the
two of them could not agree on the proper amount thereof. [16]
Also on 17 June 1994, private complainant Federico went to the police station to file an Affidavit-Complaint for estafa against
petitioners.[17] Petitioners submitted their Joint Counter-Affidavit on 12 July 1994.[18] The City Prosecution Office of Puerto Princesa City
issued a Resolution, dated 15 August 1994, finding that a prima facie case for estafa existed against the petitioners and recommending the
filing of an information for estafa against both of them. [19]
The Information, docketed as Criminal Case No. 11943 and raffled to the RTC of Puerto Princesa City, Palawan, Branch 52, reads as
follows
INFORMATION
The undersigned accuses PABLITO MURAO and NELIO C. HUERTAZUELA of the crime of ESTAFA, committed as follows:
That on or about the 16th day of June, 1994, at Puerto Princesa City, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, conspiring and confederating together and mutually helping one another, after having received the amount of P309,000.00 as
payment of the 99 tanks of refilled fire extinguisher (sic) from the City Government of Puerto Princesa, through deceit, fraud and
misrepresentation, did then and there willfully, unlawfully and feloniously defraud one Chito Federico in the following manner, to wit:
said accused, well knowing that Chito Federico agent of LM Industrial Commercial Enterprises is entitled to 50% commission of the gross
sales as per their Dealership Contract or the amount of P154,500.00 as his commission for his sale of 99 refilled fire extinguishers
worth P309,000.00, and accused once in possession of said amount of P309,000.00 misappropriate, misapply and convert the amount
of P154,500.00 for their own personal use and benefit and despite repeated demands made upon them by complainant to deliver the
amount of P154,500.00, accused failed and refused and still fails and refuses to do so, to the damage and prejudice of said Chito Federico
in the amount of P154,500.00, Philippine Currency.[20]
After holding trial, the RTC rendered its Judgment on 05 May 1997 finding petitioners guilty beyond reasonable doubt as coprincipals of the crime of estafa defined and penalized in Article 315(1)(b) of the Revised Penal Code. Estafa, under the said provision, is
committed by
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow . . .
1. With unfaithfulness or abuse of confidence, namely:
(a)
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender
in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same,
even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other
property; . . .
In the same Judgment, the RTC expounded on its finding of guilt, thus
For the afore-quoted provision of the Revised Penal Code to be committed, the following requisites must concur:
1. That money, goods or other personal property be received by the offender in trust, or on commission, or for administration,
or under any other obligation involving the duty to make delivery of, or to return, the same;
2. That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such
receipt;
3. That such misappropriation or conversion or denial is to the prejudice of another; and
4. That there is demand made by the offended party to the offender. (Reyes, Revised Penal Code of the Philippines, p. 716;
Manuel Manahan, Jr. vs. Court of Appeals, Et Al., G.R. No. 111656, March 20, 1996)
All the foregoing elements are present in this case. The aborted testimony of Mrs. Norma Dacuan, Cashier III of the Treasurers Office of
the City of Puerto Princesa established the fact that indeed, on June 16, 1994, co-accused Nelio Huertazuela took delivery of Check No.
611437 with face value of P300,572.73, representing payment for the refill of 99 cylinders of fire extinguishers. Although the relationship
between complaining witness Chito Federico and LMIC is not fiduciary in nature, still the clause any other obligation involving the duty to
make delivery of or to return personal property is broad enough to include a civil obligation (Manahan vs. C.A., Et. Al., Mar. 20, 1996).
The second element cannot be gainsaid. Both Pablito Murao and Nelio Huertazuela categorically admitted that they did not give to Chito
Federico his commission. Instead, they deposited the full amount of the consideration, with the PCIBank in the Current Account of LMIC.
The refusal by the accused to give Chito Federico what ever percentage his commission necessarily caused him prejudice which constitute
the third element of estafa. Demand for payment, although not an essential element of estafa was nonetheless made by the complainant but
was rebuffed by the accused. The fraudulent intent by the accused is indubitably indicated by their refusal to pay Chito Federico any
percentage of the gross sales as commission. If it were true that what the dealer/sales Agent is entitled to by way of commission is only
30% of the gross sales, then by all means the accused should have paid Chito Federico 30%. If he refused, they could have it deposited in
his name. In that way they may not be said to have misappropriated for themselves what pertained to their Agent by way of commission.
WHEREFORE, premises considered judgment is hereby rendered finding the accused PABLITO MURAO and NELIO HUERTAZUELA
guilty beyond reasonable doubt as co-principals, of the crime of estafa defined and penalized in Article 315 par. 1(b) of the Revised Penal
Code, and applying the provisions of the Indeterminate Sentence Law, both accused are hereby sentenced to an indeterminate penalty
ranging from a minimum of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision correccional in its medium period, to a
maximum of TWENTY (20) YEARS of reclusion temporal in its maximum period; to pay Chito Federico, jointly and severally:
a. Sales Commission equivalent to
50% of P309,000.00 or ------------------- P154,500.00
with legal interest thereon from
June 17, 1994 until fully paid;
b. Attorneys fees ---------------------------- P 30,0000.00.[21]
Resolving the appeal filed by the petitioners before it, the Court of Appeals, in its Decision, dated 31 May 1999, affirmed the
aforementioned RTC Judgment, finding petitioners guilty of estafa, but modifying the sentence imposed on the petitioners. The dispositive
portion of the Decision of the Court of Appeals reads
WHEREFORE, the appealed decision is hereby AFFIRMED with the MODIFICATION that appellants PABLITO MURAO and NELIO
HUERTAZUELA are hereby each sentenced to an indeterminate penalty of eight (8) years and One (1) day of prision mayor, as minimum,
to Twenty (20) years of reclusion temporal, as maximum. The award for attorneys fee of P30,000.00 is deleted because the prosecution of
criminal action is the task of the State prosecutors. All other aspects of the appealed decision are maintained.[22]
When the Court of Appeals, in its Resolution, dated 19 January 2000, [23] denied their Motion for Reconsideration, petitioners filed
the present Petition for Review[24] before this Court, raising the following errors allegedly committed by the Court of Appeals in its
Decision, dated 31 May 1999
I
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT PETITIONERS
ARE LIABLE FOR ESTAFA UNDER ARTICLE 315 1(B) OF THE REVISED PENAL CODE UNDER THE FOREGOING SET OF
FACTS, WHEN IT IS CLEAR FROM THE SAID UNDISPUTED FACTS THAT THE LIABILITY IS CIVIL IN NATURE.
II
WITH DUE RESPECT, THE HONORABLE COURT ERRED WHEN IT UPHOLD (sic) PRIVATE COMPLAINANTS CLAIM THAT
HE IS ENTITLED TO A FIFTY (50%) PERCENT COMMISSION WITHOUT EVIDENCE TO SUPPORT SUCH CLAIM.
This Court finds the instant Petition impressed with merit. Absent herein are two essential elements of the crime of estafa by
misappropriation or conversion under Article 315(1)(b) of the Revised Penal Code, namely: (1) That money, goods or other personal
property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to
make delivery of, or to return, the same; and (2) That there be a misappropriation or conversion of such money or property by the offender.
The findings of the RTC and the Court of Appeals that petitioners committed estafa rest on the erroneous belief that private
complainant Federico, due to his right to commission, already owned 50% of the amount paid by the City Government of Puerto Princesa
to LMICE by virtue of Check No. 611437, so that the collection and deposit of the said check by petitioners under the account of LMICE
constituted misappropriation or conversion of private complainant Federicos commission.
However, his right to a commission does not make private complainant Federico a joint owner of the money paid to LMICE by
the City Government of Puerto Princesa, but merely establishes the relation of agent and principal.[25] It is unequivocal that an agency
existed between LMICE and private complainant Federico. Article 1868 of the Civil Code defines agency as a special contract whereby a
person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of
the latter. Although private complainant Federico never had the opportunity to operate as a dealer for LMICE under the terms of the
Dealership Agreement, he was allowed to act as a sales agent for LMICE. He can negotiate for and on behalf of LMICE for the refill and
delivery of fire extinguishers, which he, in fact, did on two occasions with Landbank and with the City Government of Puerto Princesa.
Unlike the Dealership Agreement, however, the agreement that private complainant Federico may act as sales agent of LMICE was based
on an oral agreement.[26]
As a sales agent, private complainant Federico entered into negotiations with prospective clients for and on behalf of his principal,
LMICE. When negotiations for the sale or refill of fire extinguishers were successful, private complainant Federico prepared the necessary
documentation. Purchase orders, invoices, and receipts were all in the name of LMICE. It was LMICE who had the primary duty of
picking up the empty fire extinguishers, filling them up, and delivering the refilled tanks to the clients, even though private complainant
Federico personally helped in hauling and carrying the fire extinguishers during pick-up from and delivery to clients.
All profits made and any advantage gained by an agent in the execution of his agency should belong to the principal. [27] In the instant
case, whether the transactions negotiated by the sales agent were for the sale of brand new fire extinguishers or for the refill of empty
tanks, evidently, the business belonged to LMICE. Consequently, payments made by clients for the fire extinguishers pertained to LMICE.
When petitioner Huertazuela, as the Branch Manager of LMICE in Puerto Princesa City, with the permission of petitioner Murao, the sole
proprietor of LMICE, personally picked up Check No. 611437 from the City Government of Puerto Princesa, and deposited the same
under the Current Account of LMICE with PCIBank, he was merely collecting what rightfully belonged to LMICE. Indeed, Check No.
611437 named LMICE as the lone payee. Private complainant Federico may claim commission, allegedly equivalent to 50% of the
payment received by LMICE from the City Government of Puerto Princesa, based on his right to just compensation under his agency
contract with LMICE,[28] but not as the automatic owner of the 50% portion of the said payment.
Since LMICE is the lawful owner of the entire proceeds of the check payment from the City Government of Puerto Princesa, then
the petitioners who collected the payment on behalf of LMICE did not receive the same or any part thereof in trust, or on commission, or
for administration, or under any other obligation involving the duty to make delivery of, or to return, the same to private complainant
Federico, thus, the RTC correctly found that no fiduciary relationship existed between petitioners and private complainant Federico. A
fiduciary relationship between the complainant and the accused is an essential element of estafa by misappropriation or conversion,
without which the accused could not have committed estafa.[29]
The RTC used the case of Manahan, Jr. v. Court of Appeals[30] to support its position that even in the absence of a fiduciary
relationship, the petitioners still had the civil obligation to return and deliver to private complainant Federico his commission. The RTC
failed to discern the substantial differences in the factual background of the Manahan case from the present Petition. The Manahan case
involved the lease of a dump truck. Although a contract of lease may not be fiduciary in character, the lessee clearly had the civil
obligation to return the truck to the lessor at the end of the lease period; and failure of the lessee to return the truck as provided for in the
contract may constitute estafa. The phrase or any other obligation involving the duty to make delivery of, or to return the same refers to
contracts of bailment, such as, contract of lease of personal property, contract of deposit, and commodatum, wherein juridical possession of
the thing was transferred to the lessee, depositary or borrower, and wherein the latter is obligated to return the same thing.[31]
In contrast, the current Petition concerns an agency contract whereby the principal already received payment from the client but
refused to give the sales agent, who negotiated the sale, his commission. As has been established by this Court in the foregoing paragraphs,
LMICE had a right to the full amount paid by the City Government of Puerto Princesa. Since LMICE, through petitioners, directly
collected the payment, then it was already in possession of the amount, and no transfer of juridical possession thereof was involved herein.
Given that private complainant Federico could not claim ownership over the said payment or any portion thereof, LMICE had nothing at
all to deliver and return to him. The obligation of LMICE to pay private complainant Federico his commission does not arise from any
duty to deliver or return the money to its supposed owner, but rather from the duty of a principal to give just compensation to its agent for
the services rendered by the latter.
Furthermore, the Court of Appeals, in its Decision, dated 31 May 1999, defined the words convert and misappropriate in the
following manner
The High Court in Saddul v. Court of Appeals [192 SCRA 277] enunciated that the words convert and misappropriate in the crime of
estafa punished under Art. 315, par. 1(b) connote an act of using or disposing of anothers property as if it were ones own, or if devoting it
to a purpose or use different from that agreed upon. To misappropriate to ones use includes, not only conversion to ones personal
advantage, but also every attempt to dispose of the property of another without right. [32]
Based on the very same definition, this Court finds that petitioners did not convert nor misappropriate the proceeds from Check No.
611437 because the same belonged to LMICE, and was not anothers property. Petitioners collected the said check from the City
Government of Puerto Princesa and deposited the same under the Current Account of LMICE with PCIBank. Since the money was already
with its owner, LMICE, it could not be said that the same had been converted or misappropriated for one could not very well fraudulently
appropriate to himself money that is his own.[33]
Although petitioners refusal to pay private complainant Federico his commission caused prejudice or damage to the latter, said act
does not constitute a crime, particularly estafa by conversion or misappropriation punishable under Article 315(1)(b) of the Revised Penal
Code. Without the essential elements for the commission thereof, petitioners cannot be deemed to have committed the crime.
While petitioners may have no criminal liability, petitioners themselves admit their civil liability to the private complainant Federico
for the latters commission from the sale, whether it be 30% of the net sales or 50% of the gross sales. However, this Court is precluded
from making a determination and an award of the civil liability for the reason that the said civil liability of petitioners to pay private
complainant Federico his commission arises from a violation of the agency contract and not from a criminal act.[34] It would be improper
and unwarranted for this Court to impose in a criminal action the civil liability arising from a civil contract, which should have been the
subject of a separate and independent civil action.[35]
WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 21134, dated 31 May 1999, affirming with
modification the Judgment of the RTC of Puerto Princesa City, Palawan, in Criminal Case No. 11943, dated 05 May 1997, finding
petitioners guilty beyond reasonable doubt of estafa by conversion or misappropriation under Article 315(1)(b) of the Revised Penal Code,
and awarding the amount of P154,500.00 as sales commission to private complainant Federico, is hereby REVERSED and SET ASIDE. A
new Judgment is hereby entered ACQUITTING petitioners based on the foregoing findings of this Court that their actions did not
constitute the crime of estafa by conversion or misappropriation under Article 315(1)(b) of the Revised Penal Code. The cash bonds posted
by the petitioners for their provisional liberty are hereby ordered RELEASED and the amounts thereof RETURNED to the petitioners,
subject to the usual accounting and auditing procedures.
SO ORDERED.
ANTONIO NEPOMUCENO,
G.R. No. 166246
Petitioner,
Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
- versus TINGA,
VELASCO, JR., and
BRION, JJ.
PEOPLE OF THE PHILIPPINES,
Promulgated:
Respondent.
April 30, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
Before us is a petition for review filed by Antonio Nepomuceno, seeking to reverse and set aside the Decision [1] dated July 6,
2004 of the Court of Appeals in CA-G.R. CR No. 26671. The assailed decision had affirmed with modification the Decision [2] dated July
24, 2002 of the Regional Trial Court (RTC), Branch 85, Lipa City, Batangas, convicting petitioner of estafa as defined and penalized
under Article 315 1(b)[3] of the Revised Penal Code.
Nepomuceno was charged with estafa in an Information dated November 8, 1996 which reads:
xxxx
That on or about the 22nd day of October, 1994 at Lipa City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being [then] employed as manager of Lipa Lending Investor, Inc. and as
such has the duty to manage and administer the funds of the said corporation, with grave abuse of confidence reposed
upon him by the officers of the aforesaid corporation, did then and there wilfully, unlawfully and feloniously misapply,
misappropriate and convert to his own personal use and benefit the amount of One Hundred Eighty Thousand
(P180,000.00) Pesos belonging to Lipa Lending Investor, Inc. by making it appear that the said amount was part of the
change or overpayment due to a certain Rommel Villanueva, a borrower of Lipa Lending Investor, Inc., when in truth
and in fact as he very well knew he was not authorized to receive the same and despite demands to return the said
amount accused failed and refused to do so, to the damage and prejudice of Lipa Lending Investor, Inc. in the aforesaid
amount of P180,000.00, Philippine currency.
Contrary to law.[4]
During arraignment on January 13, 1997, Nepomuceno pleaded not guilty. [5] Thereafter, trial ensued.
Based on the evidence, and as undisputed by both the prosecution and defense, Lipa Lending Investor, Inc. (Lipa Lending) employed
petitioner Nepomuceno as manager. Lipa Lending, thru Nepomuceno, granted a certain Rommel Villanueva a loan in the amount
of P1,167,953 on October 7, 1994.[6] Nepomuceno approved and released the proceeds of the loan in his capacity as an officer of said
company.[7] Villanueva received the loan proceeds but failed to abide by his obligation to pay when the promissory note matured on October
14, 1994. Villanueva made a payment in the sum of P1,100,000 to Lipa Lending on October 21, 1994. On the following day, Nepomuceno,
claiming that there was an overpayment by Villanueva, approved the issuance of three checks by Lipa Lending payable to Villanueva, himself,
and a certain Raul Magaling in the amounts of P520,308.08,P180,000.00 and P10,000.00 respectively.[8]
For his defense, Nepomuceno claimed that Villanueva was a customer of good standing of Lipa Lending. Villanueva
borrowed P1,167,953 as a short-term loan, payable in installments, commencing on October 14, 1994. A promissory note covered the loan
but it did not provide the due date of the loan and the exact amount of installment that should be paid by Villanueva. Nepomuceno further
averred that on October 21, 1994, Villanueva issued a Real Bank Check in the amount of P1,100,000 to Lipa Lending. Of the amount
stated in the check, P245,000.00 was his partial payment for the loan of P1,167,953.00 while another portion in the sum of P144,691.92
was to be deducted from the purchase price of the repossessed jeepney of a certain Nicodemo Lebosada which the corporation had
taken. The check issued by Villanueva was cleared the next day, resulting in his request for the balance in the sum of P710,308.08. Lipa
Lending prepared a cash voucher for the release of said amount as “change or overpayment for short term loan.” Nepomuceno argued that
this term refers only to the first installment due and not the entire loan. Villanueva requested for a division of the P710,308.08 into three
checks. The first check was for him in the sum of P520,308.08; the second was for Nepomuceno in the amount of P180,000.00; and the
third was for Magaling in the amount of P10,000.00. Nepomuceno then explained that Villanueva gave the check in the sum of P180,000
to him.[9]
The RTC found Nepomuceno guilty beyond reasonable doubt of the crime of estafa in its Decision dated July 24, 2002, the
dispositive portion of which reads:
WHEREFORE, the Court finds the accused Antonio Nepomuceno guilty beyond reasonable doubt of
Estafa defined and penalized under Article 315, paragraph 1(b) of the Revised Penal Code, and hereby sentences him
to suffer the indeterminate penalty of imprisonment ranging from Six (6) years and One (1) day of prision mayor as
minimum to Twelve (12) years and One (1) day of reclusion temporal as maximum. Furthermore, accused is ordered
to restitute to Lipa Lending Investor, Inc. the amount of P180,000.00 with legal rate of interest computed from the date
of institution of this case until the same is paid in full. Costs de officio.
SO ORDERED.[10]
The Court of Appeals affirmed with modification the abovementioned ruling in a Decision promulgated on July 6, 2004 by
changing the penalty imposed. The dispositive portion of the appellate court’s decision reads:
WHEREFORE, the Decision of the trial court convicting accused-appellant Antonio Nepomuceno for
estafa under Article 315, paragraph 1(b) of the Revised Penal Code is AFFIRMED with the modification that the
sentence he shall suffer is an indeterminate penalty of four (4) years and two (2) months of prision correccional to
twenty (20) years of reclusiontemporal.
SO ORDERED.[11]
Thus, this petition.
Nepomuceno raises the following issues for our resolution:
I.
[WHETHER OR NOT] THE COURT A QUO ERRED IN CONVICTING PETITIONER OF THE OFFENSE OF
ESTAFA DESPITE THE FACT THAT THE AMOUNT OF P180,000.00 NO LONGER BELONGED TO LIPA
LENDING INVESTOR, INC. BUT TO ROMMEL VILLANUEVA. THERE WAS THEREFORE NO DAMAGE
CAUSED TO THE PRIVATE COMPLAINANT, WHICH IS ONE OF THE ESSENTIAL ELEMENTS OF THE
OFFENSE.
II.
[WHETHER OR NOT] THE COURT A QUO ERRED IN NOT HOLDING THAT DEMAND IS AN ESSENTIAL
ELEMENT OF THE OFFENSE OF ESTAFA COMMITTED THROUGH ABUSE OF CONFIDENCE; AND THAT
THERE WAS NO SUCH DEMAND MADE IN THE INSTANT CASE.
III.
[WHETHER OR NOT] THE COURT A QUO ERRED IN NOT APPRECIATING THE CIRCUMSTANCES
PROVING THE INNOCENCE OF THE PETITIONER.[12]
Simply, the issues are: (1) Was petitioner guilty of estafa? and (2) Is demand necessary to convict for estafa?
Petitioner, in his Memorandum[13] filed on February 28, 2006, argues that damage as an element of estafa is lacking in this case
because the amount of P180,000 did not belong to Lipa Lending but to Rommel Villanueva, and there was therefore no harm done to Lipa
Lending when Villanueva gave the amount of P180,000 to him. Accordingly, he did not receive the amount of P180,000 in trust, on
commission, for administration or any other circumstance involving the duty to make delivery of or return the same to Lipa
Lending.[14] Petitioner also argues that the element of demand in estafa was not present since the prosecution did not present evidence that
demand was made to him to account for the amount of P180,000.[15]
On the other hand, respondent, thru the Office of the Solicitor General, in its Memorandum[16] filed on May 11, 2006, contends
that the issues raised by petitioner are factual issues which are not proper in a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure;[17] that contrary to petitioner’s contention, the amount of P180,000 belonged to Lipa Lending and not to Rommel
Villanueva since the amount was directly received by petitioner from Lipa Lending by way of a company check payable to petitioner
himself;[18] and that the absence of demand does not bar petitioner’s conviction for estafa as held in the case of Salazar v. People.[19]
The elements of estafa under Article 315 1(b) of the Revised Penal Code are as follows: (1) that money, goods, or other personal
properties are received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to
make delivery of, or to return, the same; (2) that there is a misappropriation or conversion of such money or property by the offender or denial
on his part of such receipt; (3) that such misappropriation or conversion or denial is to the prejudice of another; and, (4) that there is a demand
made by the offended party on the offender.[20]
Is the element of damage or prejudice present in this case? There is no denying that Nepomuceno received P1,100,000 from
Villanueva. He claims, however, that there is no due date for Villanueva’s loan and that the latter only allotted P245,000 as payment, with
the rest of the amount to be distributed among Villanueva, Magaling, and the petitioner himself.
We cannot give credence to Nepomuceno’s claims. As manager of Lipa Lending, it was his duty to see to it that the latter’s clients
pay their loans. There was no justification for the petitioner to cause the preparation of three checks because the Statement of Account[21] of
Villanueva shows Villanueva had an outstanding obligation to Lipa Lending as of October 24, 1994 amounting to P938,526, thereby negating
the contention of the petitioner that Villanueva had a claim against the corporation due to overpayment. The petitioner, during crossexamination, admitted he appropriated the P180,000 for his own use[22] and claimed that the P180,000 given to him was his commission from
Villanueva.[23] Moreover, the promissory note executed between Lipa Lending and Villanueva did not intend a loan payable in
installments. For while said document is a standard form with blanks for the provisions of installment of the loan, the parties only wrote down
the amount of the loan and the due date of its payment. If their intention was really to settle the loan on installment, they would have clearly
provided the terms thereof. Thus, there is no basis to believe otherwise that the entire amount of the loan became due and demandable on the
date agreed upon, which is October 14, 1994.[24] It is thus clear that Nepomuceno caused the preparation of the checks in his name and gave
himself money due to the company he works for, to the prejudice and damage of said company.
Given the circumstances on record, we find Nepomuceno’s acts inexcusable and his testimony unconvincing. His grounds involve
factual issues already passed upon twice below and are inappropriate in a petition for review on certiorari under Rule 45, which allows only
questions of law to be raised.
Factual findings and conclusions of the trial court and the Court of Appeals are entitled to great weight and respect, and will not
be disturbed on review by us, in the absence of any clear showing that the lower courts overlooked certain facts or circumstances which
would substantially affect the disposition of the case. The jurisdiction of this Court over cases elevated from the Court of Appeals is
limited to reviewing errors of law ascribed to the Court of Appeals. The factual findings of the appellate court generally are conclusive,
and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid
of support in the record or that they are so glaringly erroneous as to constitute grave abuse of discretion. [25]
As for the element of demand, the law does not require demand as a condition precedent to the crime of embezzlement. [26] The
consummation of the crime of estafa does not depend on the fact that a request for a return of the money is first made and refused in order
that the author of the crime should comply with the obligation to return the sum misapplied. [27]
As for the penalty, under Article 315 of the Revised Penal Code, if the amount exceeds P22,000, the penalty shall be as follows:
Art. 315. Swindling (estafa).–Any person who shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if
the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter
sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.…
xxxx
In this case, the amount misappropriated is P180,000.
In People v. Gabres,[28] the Court explained the imposition of the minimum penalty, as follows:
Under the Indeterminate Sentence Law, the maximum term of the penalty shall be “that which, in view of
the attending circumstances, could be properly imposed” under the Revised Penal Code, and the minimum shall be
“within the range of the penalty next lower to that prescribed” for the offense. The penalty next lower should be based
on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant
to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the
court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which
it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of
the indeterminate sentence.
The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the
initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying
circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law
accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law
for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the
indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months
while the maximum term of the indeterminate sentence should at least be six (6) years and one (1) day because the
amounts involved exceeded P22,000.00, plus an additional one (1) year for each additional P10,000.00.[29]
Hence, the minimum term of the indeterminate penalty should be anywhere within six (6) months and one (1) day to four (4)
years and two (2) months.
The Court explained further the imposition of the maximum penalty in People v. Saley.[30] Thus:
[I]n fixing the maximum term, the prescribed penalty of prision correccional maximum period to prision
mayor minimum period should be divided into “three equal portions of time,” each of which portion shall be deemed
to form one period; hence –
Minimum Period
Medium Period
Maximum Period
From 4 years,
From 5 years,
From 6 years,
2 months and 1 day to
5 years,
5 months and 11 days
to 6 years,
8 months and 21 days
to 8 years
5 months and
8 months and
10 days
20 days
in consonance with Article 65, in relation to Article 64, of the Revised Penal Code.
When the amount involved in the offense exceeds P22,000.00, the penalty prescribed in Article 315 of the
Code “shall be imposed in its maximum period,” adding one year for each additional P10,000.00 although the total
penalty which may be imposed shall not exceed 20 years. The maximum penalty should then be termed as prision
mayor or reclusion temporal as the case may be. In fine, the one year period, whenever applicable, shall be added to
the maximum period of the principal penalty of anywhere from 6 years, 8 months and 21 days to 8 years. [31]
Accordingly, the maximum penalty should be within six (6) years, eight (8) months and twenty-one (21) days to eight (8) years, plus
one (1) year for each additional P10,000.[32] With fifteen (15) years in excess of the maximum of eight (8) years, Nepomuceno’s maximum
penalty stands at twenty-three (23) years. Nevertheless, the penalty cannot exceed twenty (20) years.
Thus, the Court of Appeals correctly imposed on Nepomuceno the penalty of imprisonment ranging from four (4) years and two
(2) months of prision correccional to twenty (20) years of reclusion temporal.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 26671 promulgated on July 6, 2004 affirming with
modification the Decision dated July 24, 2002 of the Regional Trial Court, Branch 85, Lipa City, Batangas, is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.