SECOND DIVISION

[ G.R. No. 111343. August 22, 1996

ERNESTINO P. DUNLAO, SR.,Petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, represented by the Office of the Solicitor General, and LOURDES DU, .

D E C I S I O N

ROMERO, J.:

Petitioner Ernestino P. Dunlao, Sr. is accused of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, in an information which reads:

"I N F O R M A T I O N

The undersigned accuses the above-named accused of Violation of Anti-Fencing Law of 1979 (Presidential Decree 1612), committed as follows:

That on or about a week prior to October 25, 1986, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, with intent to gain for himself, wilfully, unlawfully and feloniously purchased and received dismantled farrowing crates made of GI pipes, valued at P20,000.00, knowing the same to be the subject of thievery, thereby committing an act of fencing, in violation of the Anti-Fencing Law of 1979, to the damage and prejudice of the owner thereof Lourdes Farms, Inc., represented by Lourdes Du.

Contrary to law.

Davao City, Philippines, January 19, 1987.

(SGD.) ANTONINA B. ESCOVILLA4th Asst. City Fiscal"  1

Petitioner is a duly licensed retailer and wholesaler of scrap iron in Davao City using the business name "Dunlao Enterprise."

On October 25, 1986 at about 2:30 p.m. Fortunato Mariquit and Carlito Catog, both employees of Lourdes Farms, were instructed by its proprietor, Mrs. Lourdes Du, to go to petitioners premises together with police officers Pfc. Epifanio Sesaldo and Pat. Alfredo Ancajas to verify information received that some farrowing crates and G.I. pipes stolen from Lourdes Farms were to be found thereat.

Upon arrival at petitioners compound, the group saw the farrowing crates and pipes inside the compound. They also found assorted lengths of G.I. pipes inside a cabinet in petitioners shop and another pile outside the shop but within the compound.

After he was informed by the police operatives that said pipes were owned by Lourdes Farms and had been stolen from it, petitioner voluntarily surrendered the items. These were then taken to the police station.

On February 16, 1987, Criminal Case No. 14655 was filed in the Regional Trial Court of Davao city, Branch 9, accusing petitioner of violation of the Anti-Fencing Law.

On March 13, 1987, petitioner was arraigned and pleaded NOT GUILTY. Trial ensued and on May 30, 1989, the trial court rendered judgment, the dispositive portion of which reads:

"PREMISES CONSIDERED and the evidence being sufficient, this Court finds ERNESTINO P. DUNLAO, SR., GUILTY, beyond reasonable doubt of Violation of Anti-Fencing Law of 1979 and hereby sentences him to imprisonment of Six (6) Years, Eight (8) Months, One (1) Day as minimum to Seven (7) Years and Four (4) Months as maximum of Prision Mayor with all the accessory penalties provided by law.

SO ORDERED."  2

Petitioner then appealed his conviction to the Court of Appeals. On May 10, 1993, the appellate court promulgated its decision  3   affirming the judgment of the trial court.

Hence, this petition.

Petitioner states that the appellate court erred:

"(A) IN NOT FINDING THAT AT LEAST TWO (2) ELEMENTS OF THE CRIME CHARGED, NAMELY, THE ALLEGED PURCHASE BY THE ACCUSED-APPELLANT OF THE GI-PIPES AND HIS ALLEGED KNOWLEDGE OF THEIR BEING STOLEN ITEMS, WERE NOT PROVEN BY THE PROSECUTIONS EVIDENCE;

(B) IN NOT FINDING THAT ACCUSED-APPELLANT, A DULY LICENSED SCRAP METAL BUSINESSMAN FOR MORE THAN FIFTEEN (15) YEARS, HAD ACTED IN GOOD FAITH AND WITHOUT ANY CRIMINAL INTENT IN POSSESSING AS TEMPORARY CUSTODIAN OF SAID GI-PIPES BY BRINGING THEM INSIDE HIS BUSINESS ESTABLISHMENT, WHOSE INSIDE PREMISES WERE OPEN TO PUBLIC VIEW, BEFORE DARK SET IN ON THE DAY THEY WERE BROUGHT TO HIM BY WELL-DRESSED JEEP-RIDING MEN WHO MERELY OFFERED SAID ITEMS TO HIM FOR SALE BUT WHO FAILED TO RETURN TO HIS ESTABLISHMENT UNTIL POLICE OPERATIVES WENT TO HIS BUSINESS PREMISES A FEW DAYS THEREAFTER."  4

In brief, petitioner argues that the prosecution failed to establish the fact that, in receiving and possessing the subject items, he was motivated by gain or that he purchased the said articles. Further, he questions the alleged value of the stolen properties stating that they are worth a lot less than what the trial court declared them to be.

Under Presidential Decree 1612,  5   "fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."

There is no question that the farrowing crates and assorted lengths of G.I. pipes were found in the premises of petitioner. The positive identification by Fortunato Mariquit, an employee of Lourdes Farms, Inc., that these items were previously owned by it gave rise to a presumption of fencing under the law:

"Sec. 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing."

In the instant case, did petitioner Ernestino Dunlao succeed in rebutting this presumption?

We hold in the negative.

First of all, contrary to petitioners contention, intent to gain need not be proved in crimes punishable by a special law such as P.D. 1612.

The law has long divided crimes into acts wrong in themselves called "acts mala in se," and acts which would not be wrong but for the fact that positive law forbids them, called "acts mala prohibita."  6   This distinction is important with reference to the intent with which a wrongful act is done. The rule on the subject is that in acts mala in se, the intent governs, but in acts mala prohibita, the only inquiry is, has the law been violated?  7   When an act is illegal, the intent of the offender is immaterial.  8

In the case of Lim v. Court of Appeals 9   involving violation of the Anti-Fencing Law, we said:

"On the aspect of animus furandi, petitioner is of the belief that this element was not clearly established by the Peoples evidence and he, therefore, draws the conclusion that respondent court seriously erred in presuming the existence of intent to gain. Again, this supposition ignores the fact that intent to gain is a mental state, the existence of which is demonstrated by the overt acts of a person (Soriano vs. People, 88 Phil. 368 [1951]; 1 Reyes, Revised Penal Code, Eleventh Rev. Ed., 1977, p. 45; 1 Aquino, Revised Penal Code, 1988 Ed., p. 197). And what was the external demeanor which petitioner showed from which the trial court and respondent court inferred animusfurandi? These circumstances were vividly spelled in the body of the judgment which petitioner chose to blandly impugn and over which he remains indifferent even at this crucial stage. Withal, the sinister mental state is presumed from the commission of an unlawful act in bringing out the tires from his bodega which were loaded on his pick-up (People vs. Sia Teb Ban, 54 Phil. 52 [1929]; 1 Reyes, supra at P. 46; Section 3(b), Rule 131, Revised Rules on Evidence). At any rate, dolo is not required in crimes punished by a special stature like the Anti-Fencing Law of 1979 (U.S. vs. Go Chico, 14 Phil. 128 [1909]; 1 Reyes, supra at p. 58) because it is the act alone, irrespective of the motives which constitutes the offense (U.S. vs. Siy Cong Bieng, et al., 30 Phil. 577 [1915]; 1 Reyes, supra, at p. 59; 1 Aquino, supra, at p. 52)."

Secondly, the law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise to a presumption of fencing.  10

It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence but he failed to do so. All petitioner could offer, by way of rebuttal, was a mere denial and his incredible testimony that a person aboard a jeep unloaded the pipes in front of his establishment and left them there.

"A. There was a jeep loaded with G.I. pipes where he approached me with the G.I. pipes but I refused to buy and instead requested me that they will unload those G.I. pipes in front of my establishment.

Q. Now, did you have a talk with that person whom you said arrived aboard the jeep which was carrying G.I. pipes?

A. We had a talk requesting me that they will just unload the G.I. pipe but we have never talked that I am going to buy those G.I. pipes.

Q. Can you recall what did the man tell you as he asked you to allow him to unload those G.I. pipes?

A. He told me that he would just leave them temporarily and he will come back but it took a long time, he failed to come back.

Q. What time, more less, of the day was that when the unloading of the G.I. pipes was made, was it in the morning or afternoon?

A. I can remember it was in the afternoon but I am not certain as to the time.

Q. Can you estimate the time in the afternoon?

A : May be around 2 or 3 oclock but I am not certain, it was in the afternoon.

Q. You said that man who unloaded the G.I. pipes did not return anymore and so, what did you do with the G.I. pipes that were unloaded in front of your establishment?

A. That was already late in the afternoon, around 5:30 up to 6:00 oclock, we are about to close, so what I did I have it brought inside my compound for safekeeping."  11

In the Lim 12   case, we held that:

"x x x the presumption of fencing under Section 5 of Presidential Decree 1612 x x x must be upheld in the light of petitioners shallow demurrer premised on a denial and alibi, since a disputable presumption on this score is sufficient until overcome by contrary evidence."

The Court notes that the stolen articles were found displayed 13   on petitioners shelves inside his compound.If petitioner were merely keeping the farrowing crates and G.I. pipes for the men aboard the jeep, why did he display them? When a storeowner displays articles, it is assumed that he is doing so with the intention of selling them.

Furthermore, the Court finds it strange that petitioner did not even bother to ascertain the identity of the person or persons who deposited the articles with him. We quote with approval the trial courts observation that:

"The narration of how the items were simply dumped at the compound of the accused; the fragile and vague statement that the unidentified party unloading the items would bring more items at some indefinite date; x x x that accused caused the pipes to be brought inside the compound of his own volition without any such arrangement with the strangers; that the latter did not return thereafter; that some of the items delivered by the strangers were distributed in and around the compound and in cabinets inside the building already cut in short pieces; that accused cannot produce any proof of ownership by the persons who simply unloaded the items then left without coming back these are matters which common sense and sound business practices would normally clarify in the face of the express provisions of the Anti-fencing Law.x x x And when the accused took it upon himself to protect and transfer inside his compound items unloaded by total strangers without any agreement as to how the items would be sold or disposed of nor how soon agreement would be compensated, a rather dubious aura of illegitimacy envelopes and taints the entire transaction."

Lastly, petitioner questions the value of the stolen articles as found by the trial court and as affirmed by the Court of Appeals. He contends that the pipes were worth only P200.00, not the P20,000.00 alleged in the Information.

Prosecution witness Carlito Catog testified on the value of the stolen pipes stating that, as he worked as purchaser for Lourdes Farms, he was knowledgeable about their true worth. He also explained the basis of the estimate of the said articles:  14

Q. Now, those G.I. pipes which you said you saw in the premises of Mr. Dumlao and which you earlier mentioned as having been identified by you as coming from Lourdes Farms, can you tell the Honorable Court, more or less, how much did you buy those pipes?

A. I arrive at the amount of Fifty Nine Thousand (P59,000.00) as my estimate.

Q. Fifty Nine?

A. Fifty Nine Thousand Pesos (P59,000.00).

Q. And can you tell the Honorable Court what is your basis of making this estimate?

A. The G.I. pipes were made into piggery crates, we use the 3 / 4 inch by 20 feet G.I. pipes in fabricating. We use 6 lengths of those pipes at the cost of P80.00 per crate. So, we arrive at the amount of P480.00 of the materials, the G.I. pipes used in fabricating crates, plus the cost of fabrication which we paid to the one making at P700.00 per crate, so we arrive at P1,180.00 per crate and the number of crates per estimate, which we recovered from the premises of Mr. Dumlao is about more or less 50 crates. So, we arrive at Fifty Nine Thousand Pesos (P59,000.00).

The trial court, however, based its decision on the amount of P20,000.00 as alleged in the information, instead of the appraisal of P59,000.00 made by Mr. Catog. The Court believes that P20,000.00 is a more realistic estimate of the value of the stolen pipes. Petitioners claim that the pipes were worth only P200.00 is not credible considering that it took a truck to haul off the entire load from petitioners premises, as testified to by Fortunato Mariquit.  15

Q. How did you bring the G.I. pipes from the place of Mr. Dumlao to the police station?

A. We loaded them in a dump truck owned by Federico Jaca.

Q. Now, what was the quantity of the pipes that you were able to bring from the place of Mr. Dumlao to the police station?

A. Almost a truckload.

Q. What did you say, it was a dump truck?

A. Almost a load of a dump truck.

Q. After reaching the police station, what happened?

A. We unloaded it in the police station and we went home.

In line with our ruling in the Lim case,  16   petitioner should pay Lourdes Farms, Inc. represented by its owner Mrs. Lourdes Du, the sum of P20,000.00 minus the value of the pipes and farrowing crates recovered and in the custody of the police, without subsidiary imprisonment in case of insolvency.

W HEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.Petitioner is ordered to pay Lourdes Farms, Inc., represented by Mrs. Lourdes Du, the sum of P20,000.00 minus the value of the recovered pipes and farrowing crates, without subsidiary imprisonment in case of insolvency.

S ORDERED.

FIRST DIVISION

[G.R. No. 128369. December 22, 1997]

RODOLFO CAOILI, Petitioner, vs. THE HONORABLE COURT OF APPEALS and HONORABLE RUSTICO V. PANGANIBAN, Presiding Judge of the Regional Trial Court of Manila, Branch 51, Respondents.

R E S O L U T I O N

VITUG, J.:

Petitioner Rodolfo Caoili seeks a reconsideration of the Courts 18 th June 1997 resolution dismissing his petition for review on certiorari. The petition assails the resolution, dated 14 January 1997, of the Court of Appeals finding no grave abuse of discretion on the part of the trial court in refusing to exclude petitioner from a pending criminal case and to correspondingly amend the information theretofore filed with it.

The instant controversy, as well as the antecedent circumstances leading to the petition, could be said to have started when, in an Information filed on 15 March 1995 with the Regional Trial Court (RTC) of Manila, Branch 51 (Criminal Case No. 95-141750), Petitioner, Rodolfo Rudy Caoili, was charged,

along with a certain Tony Yip, with violation of Presidential Decree (P.D.) No. 1612. On 24 March 1995, petitioner sought a review by the Secretary of Justice of the resolution, dated 16 February 1995, of Assistant Prosecutor Antonio R. Rebagay that had found aprima facie case against petitioner that served as the basis for the information. In his ruling, dated 18 August 1995, the Secretary of Justice directed the exclusion of petitioner Rodolfo Caoili from the Information. The Secretary opined:

The only issue posed in the petition is whether or not there is sufficient evidence to indict Caoili. To be liable for violation of P.D. 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should be known to him to have been derived from the proceeds of the crime of robbery or theft. The allegations of Atule and Azuela do not indicate that respondent Caoili acquired the skiving machines in question knowing that the same were stolen property. The prima facie presumption of fencing from possession of stolen property does not apply to Caoili as complainant reacquired the subject skiving machines not from respondent Caoili but from Yip. It is difficult to give credence to the claim of Atule and Azuela that respondent Caoili told them that he purchased the stolen skiving machines which he in turn sold to Yip. It is simply contrary to common human behavior that a person would intimate to another or others an unlawful act, that he purchased stolen items and then dispose of it at a profit. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 1chanroblesvirtuallawlibrary

In declining to grant the corresponding motion of the prosecutor to exclude petitioner from the information in consonance with the ruling of the Secretary of Justice, the trial court ratiocinated:

Considering the records of this case and it appearing that the Information was already filed in Court, the determination of the guilt or innocence of the accused is now with this Court and the prosecution may no longer interfere with the judges disposition of the case.

The accused has to prove his allegations when his turn to present defense evidence comes because this allegations are matters of defense to be proven in Court.

It is also noted that the Prosecutor has conducted the necessary preliminary investigation in this case; examined the complaining witnesses; and there is a reasonable ground to believe that the offense charged has been committed and accused are probably guilty thereof. In fact accused Rodolfo Caoili filed his

counter-affidavit before the Investigating Prosecutor during the Preliminary Investigation of this case.2chanroblesvirtuallawlibrary

Petitioner now insists, following the rebuff by the Court of Appeals, that the determination of a prima facie case of an investigating prosecutor after the examination of declarants and his evaluation of the evidence cannot be considered as attaining finality while still subject to review by the Secretary of Justice who retains the power and authority to either affirm or reverse the findings of subordinate prosecutors. That prerogative, petitioner contends, is all up to the Secretary of Justice to take up so long as the accused has not yet been arraigned. Petitioner concludes that respondent Court of Appeals has erred in affirming the trial court in its questioned order considering that the rule laid down in Crespo vs. Mogul 3has already been abandoned by the pronouncements in Marcelo vs. Court of Appeals 4 and Roberts, Jr., et al. vs. Court of Appeals, et al. 5chanroblesvirtuallawlibrary

It is too much of an exaggeration to say that Crespo vs. Mogul no longer holds. The Solicitor General correctly points out that Roberts did not overturn or abandon but simply sustained the authority of the Secretary of Justice, recognized under Rule 112, Section 4, of the Rules of Court, to review resolutions of provincial or city prosecutors or the Chief State Prosecutor upon petition by a proper party even while the criminal case is already pending with the courts. It did, understandably, caution the Secretary of Justice from being indiscriminate on this matter; thus, reiterating Marcelo, the Court has said:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. 6chanroblesvirtuallawlibrary

Roberts went on to quote with approval the Crespo rule in explaining the doctrine; thus:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as [to] its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and

competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.7chanroblesvirtuallawlibrary

Evidently then, the appellate court viewed and appreciated correctly the now prevailing Crespo-Marcelo-Roberts rule.

Needless to say, the holding of this Court, or of the appellate court, in this instance is not to be taken as having any bearing on the ultimate disposition by the trial court of the case on its merits.

WHEREFORE, the motion for reconsideration filed by petitioner is DENIED WITH FINALITY.

SO ORDERED.

 

THIRD DIVISION

[G.R. No. 139250. August 15, 2000]

GABRIEL CAPILI Petitioner, v. COURT OF APPEALS, ET. AL., Respondents.

D E C I S I O N

GONZAGA-REYES, J.: chanrobles virtual law library

This Petition for Review on Certiorari seeks the reversal of the Decision of the Court of Appeals[1 in CA G.R. CR No. 19336 entitled People of the Philippines vs. Gabriel Capili, et. al. affirming the Decision of the Regional Trial Court[2 of the National Capital Judicial Region, Branch 34, finding Gabriel Capili guilty beyond reasonable doubt of violation of Presidential Decree 1612. chanrobles virtual law library

Gabriel Capili y Recto (GABRIEL) together with his wife Ferma Capili y Inot were charged with violation of Presidential Decree 1612, otherwise known as the Anti-Fencing Law, in an information that reads: chanrobles virtual law library

That on or about November 5, 1993, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other. With intent to gain for themselves or for another, did then and there willfully and knowingly receive, possess, keep, acquire and sell or dispose of the following, to wit: chanrobles virtual law library

Assorted pieces of jewelry chanrobles virtual law library

Several pieces of old coins (U.S. dollar) chanrobles virtual law library

all valued at P3,000,000.00, which they knew or should have known to have been derived from the proceeds of a (sic) crime of theft. chanrobles virtual law library

Contrary to law.[3 chanrobles virtual law library

On December 3, 1993, both accused entered a plea of not guilty to the offense charged with the assistance of counsel.[4 Thereafter, trial ensued. chanrobles virtual law library

The trial court summarized the testimonies of the witnesses as follows:

xxx xxx xxx chanrobles virtual law library

Christine Diokno testified that at 4:00 P.M. on November 4, 1993, when she went home from her office, she discovered that some of her (sic) items at (sic) her closet and the jewelries (sic) and money at (sic) her mothers room were taken. Upon call, two Makati police responded and surveyed the room where the robbery took place. The police officer took her statement (Exhs. F, F-1 and F-2) and then investigated the theft case. Police prepared the police report and concluded that Michael Manzo, her former houseboy, committed the offense so a case against Manzo was filed. She described all the properties that were taken as those reflected in the police report because according to her she gave the police a list of the items and is part of her statement (tsn, p. 11, May 11, 1994). Allegedly the value is about 3 Million pesos, some were of 20 years and some were of 30 years vintage, acquired by her parents since their wedding in 1945. Some from abroad, States or Hongkong acquired during trips. chanrobles virtual law library

On November 27, 1993, Quiapo sub-station informed her that Michael Manzo was there. She talked to Michael Manzo who admitted the commission of the stealing and that he sold the items to Gabriel Capili and his wife forP50,000.00. Likewise Michael Manzo admitted that on two occasions Gabriel Capili returned some of the items. The first was before he went to Isabela. That Capili returned to him (Manzo) the memorabilia taken from her room consisting of (sic) school ring, bracelets, key chain and some custom jewelries (sic) and some other items. That three days before the apprehension Gabriel returned the Raymond Wiel watch and two cast rings with diamonds. The first ring is valued at P3,000.00 the second watch was (sic) cost P20,000.00 toP60,000.00 and the two cast rings about P80,000.00. Then Manzo informed her that he sold those items returned to other buyers, near Claro M. Recto, who paid P1,500.00 and P1,000.00 for the ring which police officer (sic) failed to recover because the stand was no longer there. She was shown by the police officer

the items recovered from Gabriel Capili and his wife which she identified as her property. Shown with Exhs. A, B, C, she said those are her properties and that the coins (sic) were acquired during the trips to the States. She kept John F. Kennedy dollar coins contained in a small box. She further relayed that the coins, Exh. A came from a brooch owned by her mother. The chain with medal of our Lady was bought by her mother and was given to her together with other belongings. chanrobles virtual law library

That before the discovery of the incident her mother had the list of all the items by counting them physically because her mother used to check the jewelry every week in her presence. That all is worth three (3) Million Pesos because the jewelries (sic) were sometimes brought to a jeweler for a change or for removal of stones or replacement that is why she considered that all the jewelries (sic) were appraised. She does not know, however, what exactly were brought by her mother. That she was present during the last inventory of the items and the land titles by her mother, presenting the alleged inventory on August 1, 1993 (Exh. S), after her father died on July 15, 1993. While her mother was checking them, she was in the room writing the description of the jewelries (sic), the cost and date when bought. That the corresponding value stated came from her mother kept inside the vault. chanrobles virtual law library

That on November 2, 1993, she took out all the items because November 9 was her mothers birthday and would like to select the items she and her mother were going to wear for the occasion then check the jewelries (sic) against the prepared list. The list included the items lost but did not include the box of memorabilia which was taken from her room. She claimed that the records including the receipts from where the list was taken were lost together with the jewelries (sic) that were taken.

xxx xxx xxx chanrobles virtual law library

To support the allegation in the Information Michael Manzo testified that after he asked his friend Emilio Benitez where he can sell his jewelries (sic) he was brought to Boy Rectos (accused) house at 1260 Carola St., Sampaloc, Manila, to whom he gave one bag of jewelries (sic) with the information that he stole them while he was a house boy. Recto agreed to pay him P50,000.00 (p. 3, tsn, March 3, 1994). He left and went back after a week or on November 5, as he needed the money. He was paid P1,500.00. He left again and went back after two weeks and was paid again P6,000.00. He left again but in his return he was not paid anymore. chanrobles virtual law library

When he visited his friend Emilio Benitez at the precinct, having been charged with vagrancy, he was caught by the police asking him where he brought the jewelries (sic), so he pointed to Boy Recto, who was picked-up and brought to the station and investigated. During the frisking and searching at the station, police officers found pearls and old coins from Gabriel Capili. The following day, Mrs. Ferma Capili was investigated at sub-station 3, Quiapo, WPD. chanrobles virtual law library

He identified the pearl earring with copper (sic) with diamond (Exh. A). He likewise identified the old coin 4 pieces of dollars marked as Exhs. B-1, B-2, B-3 and B-4; B-1, B-2 dimes, B-3 and B-4 quarter cents; pendant with inscription Boy Recto, Exh. C. He admitted that the statement marked as Exh. D and sub-markings is his. chanrobles virtual law library

Describing the contents of the bag, he said that there were more or less 20 pieces of rings, some with pearls and some with diamonds and birthstones; more or less 20 pairs of earrings, diamond with pearls; more or less 10 pieces of necklaces of plain gold with pendant with the replica of God and cast with diamond. There were Quartz watches; 3 pieces Bulova watches; 5 pieces of Seiko watches, Raymond Wiel. That per complainants information, all of them costs (sic) 3 Million Pesos which he merely gave to the accused without counting them. He however, claims that they will cost only one to two million pesos. Despite which value, he entrusted them to Boy Recto without counting the pieces. chanrobles virtual law library

Defense adopted Exhibit B as Exhibit 1 and sub-markings, Exhibit D as their Exhibit 2 and 2-a. chanrobles virtual law library

That during the investigation, when he was given another lawyer, he stated that he told the accused to sell the jewelries (sic) he stole. (p. 6, tsn, March 16, 1994) chanrobles virtual law library

That witness explained that only the fancy ones were returned to him. chanrobles virtual law library

That three days after he left the jewelries (sic) to (sic) Recto, they had drinking session somewhere at Recto, on which occasion, he did not ask for the jewelries (sic). chanrobles virtual law library

That the P1,500.00 was given to him near the bus terminal at Sampaloc near UST and when the fancies (sic) were returned, which he came to know as such because he had it appraised in a pawnshop when they arrived from Roxas, Isabela. When the jewelries (sic) were returned contained in the bag, he accepted, opened (sic) for a couple of minutes without counting.

That Emilio Benitez glanced on (sic) them because the bus was about leave. Recto gave the instruction that he can come back within two weeks because Boy Recto will pay. chanrobles virtual law library

The witness admitted that he is facing a charge of Qualified Theft in Makati pending before a court where he posted his bail. That he is testifying before this Court out of his own volition. He explained that they went to Isabela per instruction of Gabriel Capili that they should lie low because the police were hunting for them and that Emilio Benitez is from Roxas, Isabela. chanrobles virtual law library

After more or less two weeks when (sic) they arrived from Isabela, he was requested by Boy Recto (Gabriel Capili) to sign a blank document somewhere at Espana (Document Exh. 3 to 3-A). He was not, however, forced. That upon arrival from Isabela, they went to the house of the accused then proceeded to wait at a hotel in Sta. Cruz. After three hours of waiting, the accused arrived and gave him P6,000.00 in the presence of Emilio Benitez without receipt. He declared that he himself is not sure whether all the jewelries (sic) inside the bag are (sic) genuine or not. chanrobles virtual law library

Having admitted to the police that he is Michael Manzo, he was asked where he brought the jewelries (sic) so he pointed to Boy Recto. He admitted to have signed a blank document, Exhibit 4 and 3, his signature, Exh. 4-1 and Exh.3-A, but do (sic) not know where the originals were, but later said that the originals are in the hands of the police officers. chanrobles virtual law library

SPO3 Ernesto Ramirez testified that as police officer of Station 3, on November 27, 1993 he investigated Michael Manzo who was accused of Qualified Theft at Makati and who admitted to him having committed said offense and pointed to the house of Gabriel Capili at Sampaloc, Manila where he sold the jewelries (sic). Thereafter, he and his companions SPO2 Reyes, SPO3 Salalia and SPO3 Fuentes with Michael Manzo went to the place and saw the wife of Gabriel Capili wearing the pair of earrings, one of the jewelries (sic) stolen. They were allowed by Gabriel Capili to get (sic) inside the residence where Gabriel Capili showed him the signed document of Michael Manzo, Exh. 4 and said he returned the jewelries (sic). It was however, denied by Manzo although he admitted the signature. Gabriel Capili went with them to the police precinct where he (Gabriel Capili) was referred to the investigator and found (sic) from his pockets 4 pieces of coins. Allegedly while the wife was then being investigated, Manzo pointed to the earrings worn by the (sic) wife as part of those stolen properties. The

same was taken by the investigator. He pointed to both accused inside the courtroom. chanrobles virtual law library

SPO1 Eduardo San Diego also from Station 3, Quiapo, Manila, investigator, investigated the case of Qualified Theft that happened at the house of Cristine Diokno. Both accused were positively identified by Michael Manzo so he took the latters statement. That during his investigation he recovered a necklace with pendant, US dollar coins with different denominations and one pair of earrings (Exh. A, B and C). In their investigation they tried to recover the other items but failed because the establishment of the other buyer pointed to them by Michael Manzo was no longer existing. He prepared the booking sheet and arrest report Exhs. D and E and sub-markings.

xxx xxx xxx chanrobles virtual law library

Gabriel Capili denied any knowledge about the charge against him and declared that what Michael Manzo stated in court that he agreed to pay P50,000.00 but paid only P1,800.00 is not true. He was at home on November 10, 1993 selling junk foods (sic) when he was called by Emil, companion of Michael Manzo, through the phone which number he gave to Emil when the latter bought something on credit from him a week before that date. Emil asked him if he would like to buy jewelry to whom he relayed if he will see the jewelry. Emil arrived at 2:00 oclock P.M. together with Michael Manzo, the first time he saw the latter and showed him two (2) pieces of jewelry, one birthstone and an old coin with a price of P2,000.00. He inquired from (sic) where the jewelries (sic) came from and was answered by Michael Manzo that it came from and (sic) being sold by his mother. He declined because he cannot pay for it. Michael Manzo handed to Emil something wrapped of which he was asked to appraise. Michael Manzo asked him if he knew somebody who can buy. He said he has but hard to see because he seldom see the man already but was invited to see the person at Recto. After boarding the taxi they did not proceed immediately to the place. Michael Manzo ordered the taxi cab to go back to Sta. Mesa Love Hotel where he was told to wait. Michael Manzo went up the hotel while Emil went towards Aurora Boulevard walking carrying some items but did not know what happened. After one hour of waiting at the taxicab and worried about the taxi fare, he went inside the hotel and after inquiring from the counter where his companion was, Michael Manzo went down with two women companions. Fifteen minutes after the two women left, Emil arrived and said he went to Cubao selling the jewelries (sic). Thereafter, they went to Recto at (sic) a business establishment near the Galaxy Theater. He was offered to drink from almost dark until dawn

asking him if he had already find (sic) his friend buyer. They parted ways and went home. chanrobles virtual law library

On November 15, Manzo and Emil called him up again asking if it was possible to see him which he positively answered. He went to UST somewhere near Mambusco station where he saw Emil with Michael Manzo about 5 meters from Emil standing talking to someone. He asked Emil if he was able to sell the jewelries (sic) and was answered not yet. Emil was borrowing P700.00 but he has no such amount, so Emil gave him the jewelries (sic) formerly offered to him, the birthstone and watch allegedly as a gift from Michael Manzo. Emil informed him that he and Michael Manzo together with two others were going to Isabela so he gave the P700.00. After they (Emil and his friend) boarded the bus he went home. chanrobles virtual law library

On November 21, he was fetched by Emil, brought to a place near the UST along Dapitan Street where he found Michael Manzo retrieving the gift given to him. Because of Manzos insistence, he returned them but asked Manzo to sign Exh. 3. They failed to return his P700.00 so he asked Manzo to sign another documents (sic), Exhs. 4 and 4-A, the original of which was given to the policeman and which was not returned to him. chanrobles virtual law library

After several days Pat. Ramirez arrived informing him that Michael Manzo sold him jewelries (sic). Invited (sic) he went to the police at the Hidalgo sub-station 3. Michael Manzo was not immediately investigated but Michael Manzo and Emil were incarcerated. After fifteen (15) minutes from the second floor he was brought to the ground floor inside the cell and detained for several days. He alleged that on the same day he was brought in a room at the second floor where he was mauled by Pat. Ramirez (sic) not convinced with what he said about the paper (Exh. 4), he gave them then brought back to the cell. He told the police that the jewelries (sic) they are looking for are in the possession of Michael Manzo. He further claimed that Michael Manzo talked to a certain Go and pointed to some other buyers who were brought to the precinct. He, however, did not know if they were released. On November 27 when his wife visited him at 7:00 P.M. she was likewise incarcerated because Michael Manzo pointed to the earrings of his wife. chanrobles virtual law library

He further declared that prior to his wifes arrival, policeman and Michael planned that when his wife arrived, Michael will point to her earrings, allegedly because Emil gave P500.00 to the police officer while planning to include his wife. His wife was then brought to the second floor but did not

know what happened, thereafter was incarcerated. chanrobles virtual law library

He testified that the earrings of his wife was given by her brother and that the old coin, Exh. B is his acquired when he helped, per order of Pat. Nick Golahan, in carrying dead body (sic) when MV Nucnucan sank in Cebu where the son of one he carried gave him coin. The other coin belongs to him which he picked up in Cebu. That the necklace with print Boy Recto on the pendant belongs to him and which was taken at the precinct from the dancer to whom he gave it. Further stating that the same came from Pat. Alex Aguirre when he was still single.chanrobles virtual law library

That upon inquest, the Fiscal told the police that they should be released but were not and (sic) brought back to the cell. The following morning they were brought to the City Hall. There again, the Fiscal ordered that they be released but were not and (sic) brought back to the cell once more. On the third time when he was brought to the Fiscal, the latter allegedly told him that San Diego altered the testimony that is why they will be incarcerated. chanrobles virtual law library

He denied that Manzo signed Exh. 3 without any writing and pointed to the typewritten statement therein as his relaying that the same was thru Michaels suggestion at the time when they were already quarreling while accusing Manzo to have stolen the properties subject matter of this case and even questioned that there is something wrongly written, the giving as a gift. chanrobles virtual law library

That although they did not know the accused Michael Manzo and did not know of any reason why he pointed to him and his wife as buyers of the jewelries (sic) worth 3 Million Pesos, he believed that it was because of the quarrel when he started accusing Manzo of stealing of which he was being blamed. chanrobles virtual law library

He now claims that the he came to know Emilio Benitez only on November 5, the same time he came to know Michael. (tsn, p. 22, Aug. 8, 1994), hence, there is no reason why Benitez will approach him selling the property. There is no quarrel with the police officers and so he has no knowledge why these people would like to implicate him and his wife. He likewise did not know of any reason why the police officer stated in their affidavit of arrest that the items US Dollars were recovered from him at the time of the investigation. He admitted that only one of the coins belongs to him, picked-up from Cebu (Exh. B-4) and his two (2) LRT coins are still missing so with P20.00 and two more Abraham Lincoln coins. Although he claimed that San Diego did not release them after the Fiscals order he did not file

any action against San Diego. That on December 1, 1993, the Prosecutor ordered the police to release them and was present asking the Fiscal if he can be allowed to go home but since they did not have any document, the Fiscal said the policemen will take care of them. They did not execute any statement because according to him he was not given any chance. chanrobles virtual law library

SPO1 Beinvenido Inot testified that he is a member of the National Police Force of Precinct 1, Olongapo City and that the accused Ferma Capili, wife of Gabriel, is his sister. He was asked by his sister to testify about the pair of earring (sic) that he gave Ferma on June 24, 1990, a U. S. Fancy jewel which was given by her sister from abroad. It has brillantitos which is the same as a base of the glass. The same was confiscated from Ferma by the police. chanrobles virtual law library

The last time he saw the pair of earring was on the date his sister celebrated her birthday. Showing all the exhibits of the prosecution to the witness, at first he answered There are no brillantitos pair of earrings, sir.. And later witness answered: Ay ito pala. (holding the pair of earrings marked as Exh. A-1, tsn p. 5, Oct. 14, 1994). He later claimed that the pair of earrings is actually for his wife sent by her sister abroad to Olongapo. He cannot remember having seen Ferma Capili on December 1993 to September 9, 1994, they saw each other two times and that they talked about those jewelries (sic) thru the phone at that time when the accused was apprehended and incarcerated. However, despite the information of Ferma Capili that she was apprehended because of the pair of earrings he did not do anything because allegedly he was too busy and they have operation. He admitted that this is the first time he declared that the earrings came from him without executing any written statement. (Defense marked Exh. A-1 pair of earring (sic) as their Exh. 8) (Decision, pp. 1-15; Rollo, pp. 31-45).[5 chanrobles virtual law library

On August 17, 1995, the trial court rendered its decision acquitting Ferma Capili but finding the accused, Gabriel Capili, guilty beyond reasonable doubt of the crime charged the dispositive portion of the decision reads: chanrobles virtual law library

WHEREFORE, finding the prosecutions evidence to be sufficient to support a conviction beyond moral certainty, for violation of P.D. 1612 in relation to Sec. 3 par. A of the same law which required that the penalty to be imposed shall be in the maximum period if the value of the property is more than P22,000.00, adding one (1) year for its additional P10,000.00, the total penalty of which shall not exceed twenty (20) years, further

considering that the consideration of the purchase is P50,000.00, accused Gabriel Capili is hereby found guilty beyond reasonable doubt for violation of said law. Without any mitigating or aggravating circumstances attendant to its commission, but granting the accused with the benefit of the indeterminate sentence law, he is hereby sentenced to suffer eight (8) years and one (1) day to ten (10) years of prision mayor medium and to suffer the additional penalty of three years (one for every P10,000.00) and to further suffer the accessory penalty thereof. chanrobles virtual law library

The accused shall be credited with the full extent of his preventive imprisonment in accordance with Art. 29 of the Revised Penal Code. chanrobles virtual law library

Since the claim of P3 Million has not been sufficiently proven but the agreed price between the seller and herein accused is only P50,000.00, the accused is hereby directed to indemnify the complainant Christined Diokno the sum of P50,000.00, less the value of the jewelries (sic) presented in Court, Exhibits A. B and C and its sub-markings, to be returned to the owner upon proper receipt and photograph. chanrobles virtual law library

The bond posted by the accused for his provisional liberty is hereby cancelled. chanrobles virtual law library

The body of the accused is hereby committed to the Director of the Bureau of Corrections, National Penitentiary, Muntinlupa, Metro Manila, through the City Warden of Manila. chanrobles virtual law library

Considering that there is no evidence to show complicity and/or that Ferma Capili conspired and confederated with her husband Gabriel Capili, she is hereby acquitted from the offense charged in the Information. chanrobles virtual law library

The bond posted by the accused for her provisional liberty is hereby cancelled. chanrobles virtual law library

SO ORDERED.[6 chanrobles virtual law library

GABRIEL appealed to the Court of Appeals which affirmed the decision of the RTC the dispositive portion of its decision reads: chanrobles virtual law library

WHEREFORE, the decision of the trial court dated August 17, 1995 convicting the appellant for violation of P.D. 1612 is hereby AFFIRMED in toto. chanrobles virtual law library

SO ORDERED.[7 chanrobles virtual law library

Motion for reconsideration was denied[8, hence this appeal where the accused assigns the following error: chanrobles virtual law library

THE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT ERRED IN NOT REMANDING THE CASE TO THE COURT A QUO FOR FURTHER PROCEEDINGS DESPITE OF (SIC) THE FAVORABLE RECOMMENDATION OF THE OFFICE OF THE SOLICITOR GENERAL CONSIDERING THAT THE ACTUAL VALUE OF THE FENCED ARTICLES WERE NOT CORRECTLY ESTABLISHED BY THE PROSECUTION.[9 chanrobles virtual law library

The petitioner maintains that even for the sake of argument that the prosecution has established that the petitioner committed the crime of fencing (violation of P.D. 1612) beyond reasonable doubt, there is no legal basis for him to suffer the entire penalty imposed by the trial court. Petitioner claims that the Office of the Solicitor General, in its appellees brief filed with the Court of Appeals, agrees that basis of the penalty for the offense of fencing is the value of the property actually involved and not the agreed selling price of the stolen item. The petitioner also maintains that since the prosecution failed to prove the value of the stolen goods, the guilt of the petitioner has not been proved beyond reasonable doubt. The petitioner therefore prays that the decision of the Court of Appeals be reversed and a new one be issued either acquitting the petitioner or remanding the case to the court a quo for further proceedings.[10 chanrobles virtual law library

The respondent through the Office of the Solicitor General (OSG) counters that on April 25, 1997, it filed a Manifestation/Clarification modifying the recommendation it made in its appellees brief to the effect that a remand of the case would unduly delay the disposition of the case. Therefore, to expedite the final resolution of the case, the OSG recommended that as an alternative to a remand that the assessment and findings of the trial court on the value of the subject articles, which is P50,000.00 be adopted and used instead.[11 It is therefore the contention of the OSG that there is no merit in the petitioners claim that the OSG agreed to the remand of the case for further reception of evidence to determine the value of the stolen goods inasmuch as this would be prejudicial to the rights of the petitioner.

The OSG also opines that the petitioner is not entitled to an acquittal since the value of the stolen property is not determinative of the guilt of the accused and is not an element of the crime but is only determinative of the penalty therefor. chanrobles virtual law library

The petition is partly meritorious. chanrobles virtual law library

Fencing is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.[12 The essential elements of the crime of fencing are: chanrobles virtual law library

1. A crime of robbery or theft has been committed; chanrobles virtual law library

2. The accused, who is not a principal or an accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; chanrobles virtual law library

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and chanrobles virtual law library

4. There is on the part of the accused, intent to gain for himself or for another.[13 chanrobles virtual law library

All these elements are present in the case at bench. chanrobles virtual law library

The first element or the fact of theft was proved by prosecution witness, Christine Diokno (DIOKNO) who testified that several pieces of jewelry, watches and money were stolen from her mothers bedroom. She reported the theft to the police who after conducting an investigation, concluded that her houseboy, Michael Manzo (MANZO), committed the offense. Consequently, a criminal case was filed against MANZO. In her testimony, DIOKNO stated that the major items that were taken consisted of two diamond rings each having a diamond solitaire of three (3) carats each, a pair of diamond earrings each having a diamond solitaire of two point five (2.5) carats, a diamond cross with twelve (12) half (1/2) carat diamond, her

mothers wedding band, an emerald set consisting of an emerald ring set with diamonds with a pair of matching earrings, a sapphire set consisting of two sapphire rings set with diamonds and matching earrings, a South Sea pearl set consisting of a ring and two pairs of matching earrings also set with diamonds, three cultured pearl necklaces with matching cultured pearl earrings set with diamonds, a topaz set consisting of two rings with diamonds and one with rubies with a set of matching earrings, a cameo set consisting of a ring, matching earrings and a brooch all set with diamonds and four solid gold watches, a Rolex, Piaget, Universal Geneve and a Gabriel Peregaux. She alleged that the total value of the items amounted to approximately three million (P3,000,000.00) pesos. In court, DIOKNO identified some of the recovered stolen items consisting of a set of pearl earrings with two small diamonds (Exhibit A), a gold chain with pendant (Exhibit B) and old United States dollar coins (Exhibit C).[14 chanrobles virtual law library

DIOKNOs testimony is corroborated by MANZO, who admitted that he stole the jewelry from DIOKNO. And that after stealing the jewelry, he delivered them to the petitioner, GABRIEL with the information that the jewelry was stolen and for the purpose of selling the same. He identified GABRIEL in court as the person to whom he delivered the stolen jewelry.[15 MANZO testified that GABRIEL was not a participant in the theft of the jewelry and that he told GABRIEL that the jewelry was stolen. He also established the fact that the petitioner agreed to pay fifty thousand (P50,000.00) pesos for the stolen jewelry which clearly manifests intent to gain on the part of the petitioner. Consequently, MANZOs testimony proves the second, third and fourth elements of the crime of fencing. chanrobles virtual law library

At any rate, the law does not require proof of purchase of the stolen articles by the accused as mere possession thereof is enough to give rise to a presumption of fencing.[16 GABRIEL, who was in possession of at least two of the stolen items, has not rebutted this presumption. chanrobles virtual law library

We also disagree with the petitioner that the prosecution failed to prove the value of the stolen items. chanrobles virtual law library

Although DIOKNOs testimony is hearsay and is inadmissible for purposes of determining the value of the stolen items inasmuch as her testimony was not based on her own personal knowledge but on the appraisals made by jewelers and what her mother told her, MANZOs testimony remains unrebutted. MANZO established that he sold the stolen items to GABRIEL

for P50,000.00 and in the absence of any evidence to the contrary, said amount is presumed to be the value thereof as it is the only value established by the prosecution. Besides, the valuation of the stolen items made by the trial court is a factual issue and factual findings of the trial court especially when affirmed by the Court of Appeals are entitled to great weight and generally should not be disturbed on appeal.[17 chanrobles virtual law library

We note however that the trial court was mistaken in imposing the penalty. A person found guilty of fencing property the value of which exceeds P22,000.00 is punished under Presidential Decree 1612 as follows: chanrobles virtual law library

Sec. 3. Penalties Any person guilty of fencing shall be punished as hereunder indicated: chanrobles virtual law library

a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided for 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. In such cases, the penalty shall be termedreclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed. chanrobles virtual law library

Under the Indeterminate Sentence Law[18, the court shall sentence an accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed and the minimum of which shall be within the range of the penalty next lower to that prescribed for the offense; and if the offense is punished by any other law, the court shall sentence an accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.[19 chanrobles virtual law library

Applying the foregoing, the petitioner should be sentenced to suffer the penalty of prision mayor maximum. The fact that the value of the fenced items exceeds P22,000.00 should not, like in cases of estafa, be considered in the initial determination of the indeterminate penalty.[20 In the absence of mitigating and aggravating circumstances, this should be imposed in its medium period which ranges from ten (10) years, eight (8) months and one (1) day to eleven (11) years and four (4) months. Adding the additional two (2) year sentence, one for each P10,000.00 in excess of P22,000.00, the maximum of the indeterminate penalty is anywhere within ten (10) years,

eight (8) months and one (1) day of prision mayor to thirteen (13) years and four (4) months of reclusion temporal[21. On the other hand, the minimum of the indeterminate sentence should be anywhere within the range of the penalty next lower which isprision correcional maximum[22 which ranges from four (4) years, two (2) months and one (1) day to six (6) years. chanrobles virtual law library

WHEREFORE , the petition is hereby DENIED and the decision of the Court of Appeals finding the petitioner, Gabriel Capili guilty beyond reasonable doubt of violating Presidential Decree 1612 otherwise known as the Anti-fencing law is AFFIRMED with the MODIFICATION that the petitioner is hereby sentenced to suffer an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correcional as minimum to thirteen (13) years and four (4) months of reclusion temporal as maximum.chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

 

G.R. No. 111426 July 11, 1994

NORMA DIZON-PAMINTUAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

DAVIDE, JR., J.:

The chief issue presented for our determination in this petition for review under Rule 45 of the Rules of Court is the correctness of the decision of 29 March 1993 of the Court of Appeals in CA-G.R. CR No. 11024  1which affirmed the decision of Branch 20 of the Regional Trial Court of Manila in Criminal Case No. 88-64954 2finding the petitioner guilty of the violation of the Anti-Fencing Law (P.D. No. 1612) but set aside the penalty imposed and ordered the trial court to receive additional evidence on the "correct valuation" of the pieces of jewelry involved for the sole purpose of determining the penalty to be imposed.chanroblesvirtualawlibrary chanrobles virtual law library

The information in Criminal Case No. 88-64954 charged the petitioner with the violation of the Anti-Fencing Law in that

on or about and during the period from February 12, to February 24, 1988, inclusive, in the City of Manila, Philippines, the said accused, with intent of gain for herself or for another, did then and there wilfully, unlawfully and knowingly buy and keep in her possession and/or sell or dispose of the following jewelries, to wit: one (1) set of earrings, a ring studded with diamonds in a triangular style, one (1) set of earrings (diamond studded) and one (1) diamond-studded crucifix, or all valued at P105,000.00, which she knew or should have known to have been derived from the proceeds of the crime of robbery committed by Joselito Sacdalan Salinas against the owner Teodoro and Luzviminda Encarnacion. 3 chanrobles virtual law library

On the basis of the testimonies of prosecution witnesses Teodoro Encarnacion (one of the offended parties), Cpl. Ignacio Jao, Jr., and Pfc. Emmanuel Sanchez, both of the Western Police District, the trial court promulgated on 16 November 1990 its decision, the dispositive portion of which reads:

WHEREFORE, the prosecution having proved the guilty of the accused for violation of Presidential Decree No. 1612 beyond reasonable doubt, the accused Norma Dizon-Pamintuan is hereby sentenced to suffer an indeterminate penalty of imprisonment from FOURTEEN (14) YEARS of prision mayor to NINETEEN (19) YEARS of reclusion temporal.chanroblesvirtualawlibrary chanrobles virtual law library

No civil liability in view of the recovery of the items, subject-matter of this case.chanroblesvirtualawlibrary chanrobles virtual law library

With costs. 4 chanrobles virtual law library

The evidence of the prosecution is summarized by the trial court as follows:

Teodoro Encarnacion, Undersecretary, Department of Public Works and Highways testified that he has just arrived at his residence located at Better Living Subdivision, Parañaque at around 9:45 p.m. of February 12, 1988 coming from the Airport and immediately proceeded inside the house, leaving behind his driver and two housemaids outside to pick-up his personal belongings from his case. It was at this point that five unidentified masked armed persons appeared from the grassy portion of the lot beside the house and poked their guns to his driver and two helpers and dragged them inside his house. That the men pointed a gun at him and was made to lie face down on the floor. The other occupants, namely his wife, the maids and his driver were likewise made to lie on the floor. Thereafter, the robbers ransacked the house

and took away jewelries and other personal properties including cash. After the intruders left the house he reported the matter immediately to the police. He was then interviewed by the Parañaque police and was informed that an operation group would be assigned to the case.chanroblesvirtualawlibrary chanrobles virtual law library

He likewise reported the matter to the Western Police District on February 15, 1988. Two days later, a group of WPD operatives came over to his house and he was asked to prepare a list of items of jewelry and other valuables that were lost including a sketch of distinctive items. He was later told that some of the lost items were in Chinatown area as tipped by the informer the police had dispatched. That an entrapment would be made with their participation, on February 14, 1988. As such, they went to Camp Crame at around 9:00 a.m. and arrived at the vicinity of 733 Florentino Torres Street, Sta. Cruz, Manila at about 10:00 a.m.; that he is with his wife posed as a buyer and were able to recognize items of the jewelry stolen displayed at the stall being tended by Norma Dizon Pamintuan; the pieces were: 1 earring and ring studded with diamonds worth P75,000 bought from estimator Nancy Bacud (Exh. "C-2"), 1 set of earring diamond worth P15,000 (Exh. "C-3") and 1 gold chain with crucifix worth P3,000 (Exh. "C-4").chanroblesvirtualawlibrary chanrobles virtual law library

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

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

The recovery of the pieces of jewelry, on the basis of which the trial court ruled that no civil liability should be adjudged against the petitioner, took place when, as testified to by Teodoro Encarnacion, the petitioner "admitted that she got the

items but she did not know they were stolen [and that] she surrendered the items and gave them to [his] wife." 6 chanrobles virtual law library

On the other hand, the version of the defense, as testified to by Rosito Dizon-Pamintuan, is summarized by the trial court thus:

The defense presented only the testimony of Rosito Dizon-Pamintuan who testified that he is the brother of Norma Dizon-Pamintuan and that sometime around 11:00 a.m. of February 24, 1985, he, together with the accused went infront of the Carinderia along Florentino Torres Street, Sta. Cruz, Manila waiting for a vacancy therein to eat lunch. Suddenly, three persons arrived and he overheard that Cpl. Jao told her sister to get the jewelry from inside the display window but her sister requested to wait for Fredo, the owner of the stall. But ten minutes later when said Fredo did not show up, the police officer opened the display window and got the contents of the same. The display stall was hauled to a passenger jeepney and the same, together with the accused were taken to the police headquarters. He likewise testified that he accompanied his sister to the station and after investigation was sent home.  7 chanrobles virtual law library

In convicting the petitioner, the trial court made the following findings:

The prosecution was able to prove by evidence that the recovered items were part of the loot and such recovered items belong to the spouses Encarnacion, the herein private complainants. That such items were recovered by the Police Officers from the stall being tended by the accused at that time. Of importance, is that the law provides a disputable presumption of fencing under Section 5 thereof, to wit: chanrobles virtual law library

Mere possession of any goods, article, item object, or anything of value which has been the subject of robbery or thievery shall beprima facie evidence of fencing.

There is no doubt that the recovered items were found in the possession of the accused and she was not able to rebut the presumption though the evidence for the defense alleged that the stall is owned by one Fredo. A distinction should likewise be made between ownership and possession in relation to the act of fencing. Moreover, as to the value of the jewelries recovered, the prosecution was able to show that the same is Ninety Three Thousand Pesos (P93,000.00). 8 chanrobles virtual law library

The petitioner then appealed her conviction to the Court of Appeals (CA-G.R. CR No. 11024) where she raised two issues: (1) that the judgment was based on a mere presumption, and (2) that the prosecution failed to show that the value of

the jewelry recovered is P93,000.00.chanroblesvirtualawlibrary chanrobles virtual law library

In its challenged decision of 29 March 1993, the Court of Appeals disposed of the first issue in this wise:

The guilt of accused-appellant was established beyond reasonable doubt. All the elements of the crime of fencing in violation of the Anti-Fencing Law of 1979 (P.D. No. 1612), to wit: chanrobles virtual law library

1. A crime of robbery or theft has been committed; chanrobles virtual law library

2. A person, not a participant in said crime, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells; or in any manner deals in any article or item, object or anything of value; chanrobles virtual law library

3. With personal knowledge, or should be known to said person that said item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; chanrobles virtual law library

4. With intent to gain for himself or for another; chanrobles virtual law library

have been established by positive and convincing evidence of the prosecution . . .

. . .

The fact that a crime of robbery has been committed on February 12, 1988 is established by the testimony of private complainant Teodoro T. Encarnacion who immediately reported the same to Parañaque Police Station of the Southern Police District (TSN, Hearings of October 3, 1988, November 9, 1988 and January 11, 1989; Exh. A) and submitted a list and sketches of the jewelries robbed, among other things, from their residence located at Better Living Subdivision, Parañaque, Metro Manila (Exh. C, C-1 to C-4 and D).chanroblesvirtualawlibrary chanrobles virtual law library

The second element is likewise established by convincing evidence. On February 24, 1988, accused-appellant was found selling the jewelries (Exhs. C-2, C-3 and C-4) which was displayed in a showcase in a stall located at Florentino Street, Sta. Cruz, Manila. [Testimonies of Teodoro Encarnacion (id. supra); Cpl. Ignacio Jao (TSN, Hearing of February 13, 1989) and Pfc. Emmanuel Sanchez (TSN, Hearing of June 4, 1989)].chanroblesvirtualawlibrary chanrobles virtual law library

On the element of knowledge that the items are derived from the proceeds of the crime of robbery and of intent to gain for herself or for another, the Anti-Fencing Law provides:

Sec. 5. Presumption of Fencing. - Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

Knowledge and intent to gain are proven by the fact that these jewelries were found in possession of appellant and they were displayed for sale in a showcase being tended by her in a stall along Florentino Street, Sta. Cruz, Manila. 9 chanrobles virtual law library

Nevertheless, the Court of Appeals was of the opinion that there was not enough evidence to prove the value of the pieces of jewelry recovered, which is essential to the imposition of the proper penalty under Section 3 of P.D. No. 1612. It opined that the trial court erred in concluding that "the value of the recovered jewelries is P93,000.00 based on the bare testimony of the private complainant and the self-serving list he submitted (Exhs. C, C-2 and C-4, TSN, Hearing of October 3, 1993)." 10 chanrobles virtual law library

The dispositive portion of the Court of Appeals' decision reads:

WHEREFORE, finding that the trial court did not commit any reversible error, its decision dated October 26, 1990 convincing accused appellant is hereby AFFIRMED with the modification that the penalty imposed is SET ASIDE and the Regional Trial Court (Branch 20) of Manila is ordered to receive evidence with respect to the correct valuation of the properties involved in this case, marked as Exhibits "C", "C-2" and "C-4" for the sole purpose of determining the proper penalty to be meted out against accused under Section 3, P.D. No. 1612. Let the original records be remanded immediately.  11 chanrobles virtual law library

Hence, this petition wherein the petitioner contends that:

I chanrobles virtual law library

PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN AFFIRMING THE DECISION OF PUBLIC RESPONDENT JUDGE CAÑEBA, IN BLATANT DISREGARD OF APPLICABLE LAW AND WELL-ESTABLISHED JURISPRUDENCE.

II chanrobles virtual law library

PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN REMANDING THE CASE TO THE COURT A QUO FOR RECEPTION OF EVIDENCE FOR THE PURPOSE OF DETERMINING THE CORRECT PENALTY TO BE IMPOSED. 12 chanrobles virtual law library

On 23 February 1994, after the public respondents had filed their Comment and the petitioner her Reply to the Comment, this Court gave due course to the petition and required the parties to submit their respective memoranda, which they subsequently complied with.chanroblesvirtualawlibrary chanrobles virtual law library

The first assigned error is without merit.chanroblesvirtualawlibrary chanrobles virtual law library

Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing Law), is "the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft." chanrobles virtual law library

Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as the term is defined in Article 19 of the Revised Penal Code. The penalty applicable to an accessory is obviously light under the rules prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to the qualification set forth in Article 60 thereof. Nothing, however, the reports from law enforcement agencies that "there is rampant robbery and thievery of government and private properties" and that "such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties," P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft." Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to be a mere accessory but becomes aprincipal in the crime of fencing. Elsewise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. 13The state may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing 14and prescribes a higher penalty based on the value of the property. 15 chanrobles virtual law library

The elements of the crime of fencing are:

1. A crime of robbery or theft has been committed; chanrobles virtual law library

2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; chanrobles virtual law library

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and chanrobles virtual law library

4. There is, on the part of the accused, intent to gain for himself or for another.

In the instant case, there is no doubt that the first, second, and fourth elements were duly established. A robbery was committed on 12 February 1988 in the house of the private complainants who afterwards reported the incident to the Parañaque Police, the Western Police District, the NBI, and the CIS, and submitted a list of the lost items and sketches of the jewelry taken from them (Exhibits "C" and "D"). Three of these items stolen, viz., (a) a pair of earrings and ring studded with diamonds worth P75,000.00 (Exhibit "C-2"); (b) one set of earrings worth P15,000.00 (Exhibit "C-3"); and (c) a chain with crucifix worth P3,000.00 (Exhibit "C-4"), were displayed for sale at a stall tended to by the petitioner in Florentino Torres Street, Sta. Cruz, Manila. The public display of the articles for sale clearly manifested an intent to gain on the part of the petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

The more crucial issue to be resolved is whether the prosecution proved the existence of the third element: that the accused knew or should have known that the items recovered from her were the proceeds of the crime of robbery or theft.chanroblesvirtualawlibrary chanrobles virtual law library

One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. 16When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. 17On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. 18Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what

is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence. 19 chanrobles virtual law library

Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for no other natural or logical inference can arise from the established fact of her possession of the proceeds of the crime of robbery or theft. This presumption does not offend the presumption of innocence enshrined in the fundamental law. 20In the early case of United States vs.Luling, 21this Court held:

It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by a statute providing that proof by the state of some material fact or facts shall constitute prima facie evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that such act or acts are innocent and are committed without unlawful intention. (Commonwealth vs. Minor, 88 Ky., 422.) chanrobles virtual law library

In some of the States, as well as in England, there exist what are known as common law offenses. In the Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.

In his book on constitutional law, 22Mr. Justice Isagani A. Cruz said:

Nevertheless, the constitutional presumption of innocence may be overcome by contrary presumptions based on the experience of human conduct [People vs. Labara, April 20, 1954]. Unexplained flight, for example, may lead to an inference of guilt, as 'the wicked flee when no man pursueth, but the righteous is as bold as a lion. Failure on the part of the accused to explain his possession of stolen property may give rise to the reasonable presumption that it was he himself who had stolen it [U.S. vs. Espia, 16 Phil. 506]. Under our Revised Penal Code, the inability of an accountable officer to produce funds or property entrusted to him will be considered prima facie evidence that he has appropriated them to his personal use [Art. 217]. According to Cooley, the

constitutional presumption will not apply as long as there is "some rational connection between the fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall not be so unreasonable as to be purely arbitrary mandate" [1 Cooley, 639].

The petitioner was unable to rebut the presumption under P.D. No. 1612. She relied solely on the testimony of her brother which was insufficient to overcome the presumption, and, on the contrary, even disclosed that the petitioner was engaged in the purchase and sale of jewelry and that she used to buy from a certain Fredo. 23 chanrobles virtual law library

Fredo was not presented as a witness and it was not established that he was a licensed dealer or supplier of jewelry. Section 6 of P.D. No. 1612 provides that "all stores, establishments or entitles dealing in the buy and sell of any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located." Under the Rules and Regulations 24promulgated to carry out the provisions of Section 6, an unlicensed dealer/supplier refers to any person, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or supplying "used secondhand articles," which refers to any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used.chanroblesvirtualawlibrary chanrobles virtual law library

We do not, however, agree with the Court of Appeals that there is insufficient evidence to prove the actual value of the recovered articles.chanroblesvirtualawlibrary chanrobles virtual law library

As found by the trial court, the recovered articles had a total value of P93,000.00, broken down as follows:

a) one earring and ring studded with diamonds (Exh. "C-2") - P75,000.00 chanrobles virtual law library

b) one set of earring (Exh. "C-3") - P15,000.00 chanrobles virtual law library

c) one gold chain with crucifix (Exh. "C-4") - P3,000.00

These findings are based on the testimony of Mr. Encarnacion 25and on Exhibit "C," 26a list of the items which were taken by the robbers on 12 February 1988, together with the corresponding valuation thereof. On cross-examination, Mr.

Encarnacion re-affirmed his testimony on direct examination that the value of the pieces of jewelry described in Exhibit "C-2" is P75,000.00  27and that the value of the items described in Exhibit "C-3" is P15,000.00, although he admitted that only one earring - and not the pair - was recovered. 28The cross-examination withheld any question on the gold chain with crucifix described in Exhibit "C-4." In view, however, of the admission that only one earring was recovered of the jewelry described in Exhibit "C-3," it would be reasonable to reduce the value from P15,000.00 to P7,500.00. Accordingly, the total value of the pieces of jewelry displayed for sale by the petitioner and established to be part of the proceeds of the robbery on 12 February 1988 would be P87,000.00.

Section 3(a) of P.D. No. 1612 provides that the penalty of prision mayor shall be imposed upon the accused if the value of the property involved is more than P12,000.00 but does not exceed P22,000.00, and if the value of such property exceeds the latter sum, the penalty of prision mayor should be imposed in its maximum period, adding one year for each additional P10,000.00; the total penalty which may be imposed, however, shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed. The maximum penalty that can be imposed in this case would then be eighteen (18) years and five (5) months, which is within the range of reclusion temporal maximum. Applying the Indeterminate Sentence law which allows the imposition of an indeterminate penalty which, with respect to offenses penalized by a special law, shall range from a minimum which shall not be lower than the minimum prescribed by the special law to a maximum which should not exceed the maximum provided therein, the petitioner can thus be sentenced to an indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor maximum, as minimum to eighteen (18) years and five (5) months of reclusion temporal maximum asmaximum, with the accessory penalties corresponding to the latter.chanroblesvirtualawlibrary chanrobles virtual law library

In the light of the foregoing, the Court of Appeals erred in setting aside the penalty imposed by the trial court and in remanding the case to the trial court for further reception of evidence to determine the actual value of the pieces of jewelry recovered from the petitioner and for the imposition of the appropriate penalty.chanroblesvirtualawlibrary chanrobles virtual law library

We do not agree with the petitioner's contention, though, that a remand for further reception of evidence would place her in double jeopardy. There is double jeopardy when the following requisites concur: (1) the first jeopardy must have attached prior to the second, (2) the first jeopardy must have validly been terminated, and (3) the second jeopardy must be for the same offense as

that in the first. 29Such a concurrence would not occur assuming that the case was remanded to the trial court.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the instant petition is partly GRANTED by setting aside the challenged decision of the Court of Appeals in CA-G.R. CR No. 11024 insofar as it sets aside the penalty imposed by Branch 20 of the Regional Trial Court of Manila in Criminal Case No. 88-64954 and orders the remand of the case for the trial court to receive evidence with respect to the correct value of the properties involved. The decision of the Regional Trial Court is AFFIRMED subject to the modification of the penalty which is hereby reduced to an indeterminate penalty ranging from Ten (10) years and One (1) day of Prision Mayor maximum as minimum to Eighteen (18) years and Five (5) months of Reclusion Temporal maximum as maximum, with the accessory penalties of the latter.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

EN BANC

[ G.R. No. 121592. July 5, 1996

ROLANDO P. DELA TORRE, Petitioner, v. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, Respondents.

-->

R E S O L U T I O N

FRANCISCO, J.:

Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC. 1

The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) 2 which provides as follows:

"Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

"(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence;

"(b) x x x ."

In disqualifying the petitioner, the COMELEC held that:

"Documentary evidence x x x established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court, x x x in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1,1990. Respondent appealed the said conviction with the Regional Trial Court x x x, which however, affirmed respondents conviction in a Decision dated November 14,1990. Respondents conviction became final on January 18,1991.

"x x x

"x x x, there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D.1612 x x x, the nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude x x x." 3

The second assailed resolution, dated August 28, 1995, denied petitioners motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well. 4

The two (2) issues to be resolved are:

1. Whether or not the crime of fencing involves moral turpitude.

2. Whether or not a grant of probation affects Section 40 (a)s applicability.

Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification - i, e., "when the conviction by final judgment is for an offense involving moral turpitude." And in this connection, the Court has consistently adopted the definition in Blacks Law Dictionary of "moral turpitude" as:

"x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals." 5

Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the Supreme Court to determine". 6 In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not 7 , the rationale of which was set forth in "Zari v. Flores," 8 to wit:

"It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited." 9

This guideline nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC, 10 the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. 11

The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone.

Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as:

"a. x x x the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft." 12

From the foregoing definition may be gleaned the elements of the crime of fencing which are:

"1. A crime of robbery or theft has been committed;

"2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime;

"3.   The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and [Underscoring supplied.]

"4. There is, on the part of the accused, intent to gain for himself or for another." 13

Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for gain - thus deliberately reneging in the process "private duties" they owe their "fellowmen" or "society" in a manner "contrary to x x x accepted and customary rule of right and duty x x x, justice, honesty x x x or good morals." The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on "Human Relations" and "Solutio Indebiti," to wit:

"Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith."

"Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same."

"Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

"Article 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him."

"Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises."

The same underlying reason holds even if the "fence" did not have actual knowledge, but merely "should have known" the origin of the property received. In this regard, the Court held:

"When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words should know denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists." 14[Italics supplied.]

Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, x x x, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing"- a presumption that is, according to the Court, "reasonable for no other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft." 15 All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude.

Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. 16 Petitioners conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. 17 Clearly then, petitioners theory has no merit.

ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6,1995 and August 28,1995 are AFFIRMED in toto.

SO ORDERED.

ERNESTO FRANCISCO y SPENOCILLA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal via a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision2 of the Regional Trial Court of Malolos, Bulacan, Branch 22, finding petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1) day of prision mayor maximum, as minimum, to twenty (20) years of reclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter, and to pay the corresponding value of the subject pieces of jewelry.

The Indictment

The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23, 1993, the accusatory portion of which reads:

That in or about the month of November 1991, in the municipality of Meycauayan, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto Francisco y Spenocilla, with intent to gain for himself, did then and there wil[l]fully, unlawfully and feloniously buy, receive, possess and acquire from one Pacita Linghon y Liza, not the owner, several pieces of jewelry, to wit:

One (1) pair of earrings (Heart Shape) ---P 400,000.00

One (1) White Gold Bracelet ----150,000.00

One (1) Diamond Ring---- 100,000.00

One (1) Ring with Diamond ----5,000.00

with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

Contrary to law.3

The petitioner was arraigned, with the assistance of counsel, and entered a plea of not guilty. Trial forthwith ensued.

The Case for the Prosecution

Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal.4 She was engaged in business as a general contractor under the business name J.C. Rodriguez Contractors. Macario Linghon was one of her workers. She and her husband, the former Municipal Mayor of Rodriguez, Rizal, acquired several pieces of jewelry which were placed inside a locked cabinet in a locked room in their main house. Jovita hid the key to the cabinet inside the room. The couple and their son resided inside a compound. They hired Pacita Linghon, Macarios sister, as one of their household helpers us sometime in February 1989.5 Pacita swept and cleaned the room periodically.Sometime in May 1991, she left the employ of the Rodriguez family.

Sometime in the third week of October 1991, Pacita contacted her brother Macario, who resided in Sitio Baloongan, Barangay Paltok, Meycauayan, Bulacan,6 and asked him to sell some pieces of jewelry. She told Macario that a friend of hers owned the jewelry.7 Macario agreed. He then went to the shop of petitioner Ernesto Erning Francisco located at Pacheco Street, Calvario, Meycauayan, Bulacan,8 which had a poster outside that said, We buy gold. Macario entered the shop, while Pacita stayed outside. Macario offered to sell to Ernesto two rings and one bracelet. Ernesto agreed to buy the jewelry for P25,000, and paid the amount to Macario. He also gave Macario P300 as a tip.9

Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of earrings.He agreed. He and a friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of earrings for P18,000. The latter agreed and paid Macario the amount.Ernesto gave a P200 tip to Macario. After these transactions, Macario saw the petitioner in his shop for about five to six more times and received some amounts.11

Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She was shocked when she opened the locked cabinet containing her jewelry, and found that the box was empty. She noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing were one pair of diamond heart-shaped earrings worth P400,000; one heart-shaped diamond ring worth P100,000; one white gold bracelet with diamond stones worth P150,000; and one ring with a small diamond stone worth P5,000. She suspected that it was Pacita who stole her jewelry. She was, however, occupied with her business ventures that she had little time to gather evidence and charge Pacita.

On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother Adoracion Linghon with the Counter-Intelligence Group of the Philippine National Police in Camp Crame, Quezon City. She stated that she owned several jewels, viz: one (1) heart-shaped pair of earrings with diamond worth P400,000; one (1) heart-shaped ring with diamond worth P100,000; one (1) white gold bracelet with diamond stones worth P150,000; and, one (1) ring with a small diamond stone worth P5,000. She also averred that Pacita had stolen the pieces of jewelry, and that she and her mother Adoracion disposed of the same.

A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence Group, invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in connection with Jovitas complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement pointing to the petitioner as the person to whom she sold Jovitas jewelry. On August 23, 1992, Pacita gave a sworn statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped earrings with diamond, one white gold bracelet, one heart-shaped diamond ring, and one ring with big and small stones to Mang Erning of Meycauayan, Bulacan, for the total price of P50,000 to cover the cost of her fathers operation and for food. When asked about the full name of the person to whom the jewelry was sold, Pacita replied that she knew him only as Mang Erning.

Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and PO1 Roldan, Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the Mang Erning who had purchased the jewelry from her. The policemen alighted from their vehicle and invited the petitioner for questioning in Camp Crame. Upon his insistence, the petitioner was brought to the police station of Meycauayan, Bulacan.When they were at the police station, the petitioner, in the presence of SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe, for them not to implicate him in the case.PO1 Roldan, Jr. rejected the offer.12 They again invited the petitioner to go with them to Camp Crame, but the petitioner refused and demanded that the

policemen first secure a warrant for his arrest should they insist on taking him with them.13

Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal, Branch 76.14The case was docketed as Criminal Case No. 2005.Adoracion was also charged with violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were consolidated and jointly tried.

Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring him that he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against the petitioner.

PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation.

On September 1, 1992, Jovita executed a sworn statement in the office of the police station of Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.15 A criminal complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the preliminary investigation, Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to the petitioner for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she found the jewelry belonging to Jovita while she was cleaning the room in the house, and that she brought the jewelry home.16 The court found probable cause against the petitioner, and issued a warrant for his arrest.

On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC charging the petitioner with violating P.D. No. 1612.

In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and Adoracion guilty of fencing under P.D. No. 1612, beyond reasonable doubt. The decretal portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in these cases, as follows:

1.In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable doubt of the crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the Revised Penal Code, and sentencing her to suffer the indeterminate sentence of Nine (9) years and Four (4) months of prision mayor as minimum to Eighteen (18) years, Two (2) months and

Twenty (20) days of reclusion temporal as maximum, to return to complainant Jovita Rodriguez the unrecovered stolen pieces of jewelry subject of this case and if restitution is not possible, to indemnify the said complainant in the amount of P1,300,000.00; and to pay the costs.

2.In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond reasonable doubt of the offense of violation of PD 1612, otherwise known as the Anti-Fencing Law, and sentencing her to suffer imprisonment of Twelve (12) years of prision mayor; to indemnify complainant Jovita Rodriguez in the amount of P45,000.00; and to pay the costs.

SO ORDERED.17

The Case for the Petitioner

The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a shop located at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold jewelry. He had been in this business since 1980.18 He did not transact with Pacita regarding Jovitas missing jewels.19 In fact, he did not even know Jovita and met her only during the preliminary investigation of the case before the MTC of Meycauayan, Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he first saw her when she accompanied some policemen in civilian clothes to his shop, where he was thereafter invited to Camp Crame for investigation.20 He saw Pacita again only during the preliminary investigation of the case.21 The petitioner also averred that he had no transaction with Macario of whatever nature.22

The petitioner further testified that when the policemen in civilian clothes approached him in his shop, they asked who Mang Erning was, as the sign in his shop carried such name. When he responded to the question, the policemen identified themselves as members of the police force. The petitioner then gave them his full name.23When the policemen invited him for questioning, he refused at first. Eventually, he agreed to be interrogated at the municipal hall, where the policemen insisted on bringing him to Camp Crame. He told them that he would go with them only if they had a warrant of arrest.24 He denied ever offering any bribe to the policemen.25

On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond reasonable doubt of violating P.D. No. 1612. The decretal portion of the decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1.Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612 (Anti-Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1 day of prision mayor maximum, as minimum, to 20 years of reclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter.

2.Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding value of the subject items of jewelries (sic):

one (1) pair of earrings, heart shaped P400,000.00

one (1) white gold bracelet 150,000.00

one (1) diamond ring 100,000.00

one (1) ring with diamond  5,000.00

TOTAL VALUEP655,000.00

with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said amounts have been fully paid.

SO ORDERED.26

The petitioner appealed the decision to the Court of Appeals contending that:

I

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.

II

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

III

THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic) OF PROSECUTION WITNESSES.

IV

THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-APPELLANTS OFFER OF BRIBE WITHOUT SHOW OF MONEY.

V

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.27

On December 29, 2000, the CA rendered judgment affirming the decision of the RTC.28

The Present Petition

In the present recourse, petitioner Ernesto Francisco asserts that:

The Court of Appeals erred in sustaining the trial courts decision finding petitioner guilty beyond reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law.

The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses, all of which consisted of hearsay evidence.29

The petitioner asserts that the prosecution failed to prove his guilt for the crime charged beyond reasonable doubt.He avers that the prosecution failed to prove that Pacita stole the jewelry subject of the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits that the prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry and sold the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends that the testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovitas complaint for theft, are hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry to him, Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers that the testimony of Macario, the principal witness of the prosecution, is inconsistent on substantial matters; hence, should not be given credence and probative weight.

On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution was able to prove all the elements of the crime charged. It asserts that the first element was proved through Pacitas conviction for theft in Criminal Case No. 2005; the second element was shown to exist with moral certainty via the testimony of Macario identifying the petitioner as the one who bought the subject pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third element was proven by evidence showing that the

petitioner had been in the business of buying and selling jewelry for a long period of time, and that he had the expertise to know the correct market price of the jewelry he purchased from Macario and Pacita. The OSG asserts that the petitioner must have been put on his guard when the subject pieces of jewelry worth P655,000 were sold to him for only P50,000.30 It contends that the inconsistencies in the testimonies of the prosecution witnesses referred to by the petitioner were minor, and could not be made as a basis to disregard the trial courts findings of facts, which are entitled to great respect and credit.31

The Ruling of the Court

The petition is meritorious.

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been committed; (2) the accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have shown that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and, (4) there is, on the part of the accused, intent to gain for himself or for another.32 Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and to prescribes a higher penalty based on the value of the property.33 The stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing.

We agree with the trial and appellate courts that the prosecution mustered the requisite quantum of evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry from the locked cabinet in the main house of her then employer. Jovita testified on her ownership of the jewelry and the loss thereof, and narrated that Pacita had access to the cabinet containing the pieces of jewelry.

We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in Criminal Case No. 2005 convicting Pacita of theft does not constitute proof against him in this case, that Pacita had, indeed, stolen the jewelry. There is no showing that the said decision in Criminal Case No. 2005 was already final and executory when the trial court rendered its decision in the instant case.

On the second element of the crime, the trial and appellate courts held that the prosecution proved the same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005; that Pacita had confessed to Jovita that she sold some of the jewelry to the petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision in Criminal Cases Nos. 1992 and 2005; the testimonies of Pacita and her brother Macario during the preliminary investigation of Criminal Case No. 92-13841 before the MTC of Meycauayan as shown by the transcripts of the stenographic notes taken during the proceedings; the supplemental sworn statement of Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario before the trial court.

However, we find and so hold that

First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her that she had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter to prove the truth of the said admission. It bears stressing that the petitioner was not a party in the said criminal cases. The well-entrenched rule is that only parties to a case are bound by a judgment of the trial court. Strangers to a case are not bound by the judgment of said case.34 Jovita did not reiterate her testimony in the said criminal cases during the trial in the court a quo. The prosecution did not present Pacita as witness therein to testify on the admission she purportedly made to Jovita; hence, the petitioner was not able to cross-examine Pacita. The rule is that the acts or declarations of a person are not admissible in evidence against a third party.35

Second. The testimony of Pacita during the preliminary investigation in Criminal Case No. 92-13841, as well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did not testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront and cross-examine a witness against him.

Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner, while the latter was having a drinking spree, as the person who bought the subject jewelry from her, is indeed admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony of Macario. However, such testimony is admissible only to prove such fact - that Pacita pointed to the petitioner as the person to whom she sold the subject jewelry; it is inadmissible to prove the truth of Pacitas declaration to the policemen, that the petitioner was the one who purchased the jewelry from her. It must be stressed that the policemen had no personal knowledge of the said

sale, and, more importantly, Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his right to cross-examine Pacita on the truth of what she told the policemen.

Fourth. On the other hand, the testimony of Macario during the preliminary investigation of Criminal Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the prosecution and was cross-examined on his testimony during the preliminary investigation.

In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the testimony of Macario during the preliminary investigation and trial in the court a quo.

Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to anchor a judgment of conviction, it is required that such testimony must be credible and reliable.36 In this case, we find the testimony of Macario to be dubious; hence, barren of probative weight.

Macario admitted when he testified in the court a quo that his testimony during the preliminary investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were inconsistent. He even admitted that some portions of his testimony on direct examination in the court a quo were inconsistent with his testimony on cross-examination and on re-direct examination. These admissions are buttressed by the records of the case, which show that such inconsistencies pertained to material points and not merely to minor matters. Thus, during the preliminary investigation in Criminal Case No. 92-13841, Macario admitted that on October 10, 1991, he and his sister Pacita sold two rings and one bracelet to the petitioner for P25,000, while in November 1991, he and Pacita sold a pair of earrings to the petitioner for P25,000. On direct examination in the court a quo, Macario testified that he and Pacita sold the earrings to the petitioner in May 1992, not in November 1991, and only for P18,000. On cross-examination, Macario testified that he and his sister Pacita went to the petitioners shop in Meycauayan, Bulacan and sold the subject jewelry on both occasions. On further cross-examination, Macario changed his testimony anew, and declared that he sold the jewelry to the petitioner for P18,000 and not P25,000; only to change his testimony again, and declare that he sold the jewelry for P25,000. However, Macario testified during the preliminary investigation in Criminal Case No. 92-13841 that when he transacted with the petitioner for the second time, he was with a friend, and not with his sister Pacita. On redirect examination, Macario declared that in October 1991, he and Pacita sold four (4) pieces of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on direct examination. He also testified

that he and his sister sold the earrings in November 1991. Because of the contradicting accounts made by Macario, the court made the following observations:

Court

qAccording to you, you were nalilito but you gave the correct answer, you are not nalilito here but you gave the wrong answer. Bakit ganoon, sabi mo nalilito ka roon (sic) pero ang sagot mo pala tama. Dito hindi ka naman nalilito, bakit mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang sabi mo.

aBecause I am scare[d] here thats why I gave the wrong answer.

qYou better think about it.

aI was confused, Sir.37

The testimonies of Macario are even contrary to the averments of the Information, that the petitioner received the said jewelry from Pacita.

Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is no evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did not know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the jewelry to the petitioner that they belonged to a friend of hers.

Atty. Lerio

QAt that time you and your sister sold those jewels to Mang Erning did do you know already [that] it was Mrs. Rodriguez who is the owner of those jewels?

ANo, Sir, I do not know.

QAnd who do you know was the owner of that jewels and that time you and your sister sold those jewels to Mang Erning?

AAccording to my sister, it is (sic) owned by a friend of hers.

Court

QHow did you come to know of this Mang Erning?

AOnly at that time when we brought the jewels.

QBut previous to that, do you know him?

ANo.38

Macario learned, after the case against Pacita had already been filed in the trial court, that the jewelry was, after all, owned by Jovita. However, he failed to inform the petitioner that the said jewelry was stolen. Following is the testimony of Macario:

Atty. Lerio

QWhen you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all, informed (sic) Mang Erning about it?

Court

QNo basis, when did you come to know that the jewels belong to Mrs. Rodriguez?

AIn 1992, when my sister already had a case.

QWhat did you do when you come (sic) to know about that?

AI was not able to do anything but just to help my sister with her case and also to help the case of Mrs. Rodriguez.

Atty. Lerio

QAfter that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was there any occasion where you (sic) able to inform Mang Erning that those jewels were owned by Mrs. Rodriguez?

ANo more, I have no more time.39

The prosecution cannot even validly argue that the petitioner should have known which pieces of jewelry were stolen, considering that Macario was selling the same for P50,000 when the said pieces stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution failed to adduce sufficient competent evidence to prove the value of the said stolen articles. The prosecution relied solely on the bare and uncorroborated testimony of Jovita, that they were worth P655,000:

Atty. Lerio

QNow, will you tell this Court some of those jewels which you own?

AI own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-bracelet, white gold full of stones, diamond worth P150,000.00; 1-diamond ring with small stones worth P5,000.00. So, all in all, the jewelry is (sic) worth P665,000.00.40

When asked by the trial court to declare the present market value of the stolen jewelry, Jovita merely declared:

Atty. Lerio

QNow again, when did you acquire those jewels if you can still remember?

AI remember several years ago when my husband is (sic) alive.

Court

QPlease tell the court, [is] the market value of the jewels the same today?

ANo, that is (sic) the market value several years ago.

QSo, can you explain [if] the market value, more or less, [is] the same today?

ANo. The price, if we will appraise now, is much bigger.41

When required by the petitioner, through counsel, to bring to the court any receipts reflecting the price of the pieces of jewelry to show that she purchased the same, Jovita answered that she had no such receipts. Thus:

Court

QYou bought it from [a] private person?

AYes, Your Honor.

Atty. Bernal

QWhat then is your proof that you bought these jewelries (sic) from a private person?

Atty. Lerio

That was already answered, Your Honor. She said, no receipt.42

In People v. Paraiso,43 we cited our ruling in People v. Marcos 44  that an ordinary witness cannot establish the value of jewelry, nor may the courts take judicial notice of the value of the same:

[A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness cannot establish the value of jewelry and the trial court can only take judicial notice of the value of goods which are matters of public knowledge or are capable of unquestionable demonstration. The value of jewelry is not a matter of public knowledge nor is it capable of unquestionable demonstration and in the absence of receipts or any other competent evidence besides the self-serving valuation made by the prosecution, we cannot award the reparation for the stolen jewelry.45

It bears stressing that, in the absence of direct evidence that the accused had knowledge that the jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can be concluded that the accused should have known that the property sold to him were stolen. This requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and, (b) to enable the trial court to determine the imposable penalty for the crime, since the penalty depends on the value of the property; otherwise, the court will fix the value of the property at P5.00, conformably to our ruling in People v. Dator:46

In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of the bag and its contents at P100.00 based on the attendant circumstances of the case.More pertinently, in the case of People vs. Reyes, this Court held that if there is no available evidence to prove the value of the stolen property or that the prosecution failed to prove it, the corresponding penalty to be imposed on the accused-appellant should be the minimum penalty corresponding to theft involving the value of P5.00.47

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of violating P.D. No. 1612 for the prosecutions failure to prove his guilt beyond reasonable doubt.

SO ORDERED.

JUANITO LIM, Petitioner, vs. THE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, respondents.

MELO, J.:

What makes the case at bar an interesting subject for study is the dearth of jurisprudence involving violations of the Anti-Fencing Law of 1979 or Presidential Decree No. 1612.chanroblesvirtualawlibrary chanrobles virtual law library

Inasmuch as the appellant below was not able to overthrow the presumption of fencing embodied under Section 5 of the law in point, his conviction for the misdeed, as rendered by the trial court, was affirmed by respondent Court of Appeals, through Justice Gloria Paras with whom Justices Elbinias and Abad Santos, Jr. concurred (p. 27, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library

Hence, the petition before us which resolves on the ensuing backdrop culled from the text of the decision appealed from:

From the decision dated March 20, 1989 in Criminal Case No. 7526 entitled "People of the Philippines vs. Juanito Lim," the dispositive portion of which states:

WHEREFORE, premises considered, judgment is hereby rendered finding accused guilty beyond reasonable doubt of violating PD 1612 (Anti-Fencing Law) and consequently, pursuant to Sec. 3 (a) of said PD 1612 and the provisions of the Indeterminate Sentence Law, he is hereby sentenced to serve imprisonment ranging from 8 years of Prision Mayor as minimum to 14 years, 8 months and 1 day of reclusion temporal as maximum with the accessories of the law and to pay the private offended party the sum of P206,320.00 minus the value of the spare parts recovered and in the possession of Sgt. Dabaitan, without however, subsidiary imprisonment in case of insolvency.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

the accused appealed to this Court.chanroblesvirtualawlibrary chanrobles virtual law library

Juanito Lim, the accused, was charged in an information with violation of PD 1612 (Anti-Fencing Law) which was allegedly committed as follows:

That on or about March, 1986, in the City of Cagayan de Oro, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to gain for himself or for another, did then and there willfully, unlawfully and feloniously receive, possess, keep and acquire, or deal with the following spare parts and item, to wit:

xxx xxx xxx chanrobles virtual law library

the said spare parts and items being owned by and belonging to one Loui Anton Bond, well knowing that the same were stolen or should be known to him to have been derived from the proceeds of the crime of Theft, but inspite of such knowledge, accused allowed the same to be stored or kept in his bodega and subsequently bought or disposed of the nine (9) pieces of tires with rims, to the damage and prejudice of the offended party Loui Anton Bond in the total amount of P206,320.00, Philippine Currency.chanroblesvirtualawlibrary chanrobles virtual law library

Contrary to and in violation of P.D. 1612.

A plea of "not guilty" was entered by the accused upon the arraignment.chanroblesvirtualawlibrary chanrobles virtual law library

The evidence of the prosecution tried to establish that Sergio Pabilona had vacated his house in Barangay Tiglimao, Cagayan de Oro City, because of the worsening communist insurgency problem in that barangay, of which he used to be the barangay captain; that he had taken temporary residence in Barangay Pagatpat, also of Cagayan de Oro City (t.s.n., September 22, 1987, p. 1); that on or about noon of March 1, 1986, Pabilona and the eight men he had requested to help him retrieve his belongings in his house in Barangay Tiglimao, converged at the residence his Sgt. Delfin Bacalso at Lapasan, Cagayan de Oro City; that Sgt. Bacalso and nine other constabulary soldiers, with the former as leader, were to escort Pabilona and his men in going to Barangay Tiglimao; that Pabilona had earlier requested for such a military escort (id., p. 5); that soon after, a Mercedes Benz truck, owned by accused Juanito Lim, arrived; that it was Sgt. Bacalso who contracted for the truck because, according to him, he too had some lumber to load in Barangay Taglimao; that Pabilona had earlier given Sgt. Bacalso P600.00 for truck rental (id., p. 6); that at about 2:00 p.m. Pabilona, his men and their military escort left Lapasan on board the Mercedes Benz truck for Barangay Taglimao, arriving thereat at about 5:00 o'clock that same afternoon; that after they have rested for a while, Pabilona then ordered his men to gather his belongings inside his house, but he was stopped by Sgt. Bacalso who wanted that they first proceed to the next barangay, Barangay Tuburan, because his lumber were allegedly

there; that Pabilona protested because his request for military escort was only up to Barangay Taglimao; that he was prevailed upon by Sgt. Bacalso to first proceed to Barangay Tuburan (tsn.,id., p. 7); that upon arriving in Barangay Tuburan, Sgt. Bacalso ordered the men of Pabilona to proceed to the compound of ECG Mining Corporation and to remove from the heavy equipment found therein their parts; that he also ordered them to unload and to carry with them the acetylene equipment owned by accused-appellant Juanito Lim which was covered by canvass on board the truck; that as it was already dark, and afraid of being bitten by snakes, the men of Pabilona started removing the parts of the heavy equipment only in the early morning the following day, March 2, 1986; that their job having been done, they brought the various heavy equipment parts, among which were nine tires with rims, to the Mercedes Benz truck and loaded them thereon; that Pabilona, his men and their military escort repaired back to Barangay Taglimao and loaded the personal belongings of Pabilona; that they then drove back to Lapasan, stopping at the "bodega" of accused Juanito Lim which was located a few meters away from the residence of Sgt. Bacalso; that long after their arrival, accused Juanito Lim also arrived on board his pick-up vehicle; that Sgt. Bacalso then ordered the men of Pabilona to unload acetylene equipment and the various heavy equipment parts and to deposit them inside the "bodega" of accused Juanito Lim, after which the latter ordered that his "bodega" be closed; that Pabilona and his men then rode on the truck again and proceeded to barangay Pagatpat where they unloaded the personal belongings of Pabilona; that the following morning, the men of Pabilona went to the house of Sgt. Bacalso, as they were told by the latter to do so, but Sgt. Bacalso was out of his house; that while waiting for Sgt. Bacalso, the men of Pabilona saw the accused arrived at his "bodega" on board his yellow pick-up vehicle; that they then saw the accused remove from his "bodega" the nine tires with rims, load them on his yellow pick-up vehicle and then drive away; that soon after, Sgt. Bacalso arrived, only to tell the men waiting for him that they have nothing more to collect from him because they already incurred an overdraft, so, the men left for their respective homes; that at the time the heavy equipment was being cannibalized, the President and General Manager of BCG Mining Corporation, Loui Anton Bond, an Australian national, was being held captive by the New People's Army, however, after his release in June 1986, he immediately reported to the police authorities the thievery committed in his company's compound in Barangay Tuburan; that he also caused to be estimated by Engr. Kionisala the value of the items taken from the heavy equipment; that Engr. Kionisala placed the total value of the items taken at P470,310.00; and that Sgt. Dabatian, of the Cagayan de Oro City Police, conducted an investigation, which culminated in the filing of the instant case by the City Fiscal against accused Juanito Lim for violation

of Presidential Decree No. 1612.chanroblesvirtualawlibrary chanrobles virtual law library

Aside from denying the commission of the offense charged, the accused also set up the defense of alibi, which the lower court did not believe.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court found the accused guilty as charged and sentence him accordingly.chanroblesvirtualawlibrary chanrobles virtual law library

A reconsideration of the aforesaid decision, which was sought by the accused, was denied by the lower court in its Order dated May 3,1989. . . (pp. 27-30, Rollo.)

Inculpation of petitioner was anchored on the principal observation that the witnesses who testified against him had no ulterior motive to prevaricate which rendered their testimony worthy of credence when juxtaposed with petitioner's defense of denial and alibi. Respondent court also did not see it fit to reverse the court of origin just because the witnesses against petitioner were not included as co-defendants because as observed also by the trial court, petitioner did not bother to impugn the resolution of the inquest fiscal who conducted the preliminary investigation.chanroblesvirtualawlibrary chanrobles virtual law library

On the absence of the so-called evidence to indicate that it was petitioner who sold or disposed of the spare parts recovered from a store named Basic Diesel Parts, respondent court remarked:

In the case at bar, the prosecution has duly proved that the appellant had dealt with the stolen items and had possession of the same because the said spare parts and tires which were the subject of thievery or robbery for they were removed from the heavy equipment of Loui Bond, the private complainant, without the latter's knowledge and consent, were unloaded from the truck of the appellant and kept in his bodega. And appellant was present during such unloading and had even ordered the bodega closed after such unloading to his bodega.chanroblesvirtualawlibrary chanrobles virtual law library

Under such duly proven facts and circumstances, there is the presumption of fencing on the part of the appellant as provided in the aforequoted Sec. 5 of PD 1612.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant has not destroyed the aforesaid presumption. And the charge against him was further strengthened by the facts and circumstances that

he owned the truck that transported the removed spare parts from barangay Tuburan to his bodega; that the said vehicle which was allegedly hired to transport the belongings of Pabilona at Barangay Taglimao to his place at Pagatpat did not immediately proceed to Pagatpat to unload Pabilona's things; instead, from Taglimao the truck proceeded immediately to the appellant's bodega; that he owned the acetylene equipment that was used to detach the spare parts from the heavy equipment of the private complainant and the said acetylene equipment was also unloaded at the bodega of the appellant; that the following morning after the said spare parts, acetylene equipment and tires were deposited in his bodega, he brought out the said tires from his bodega and loaded them in his pick-up vehicle; and his bodega in near the house of Sgt. Bacalso. (p. 32, Rollo.)

With respect to petitioner's argument that the Anti-Fencing Law does not contemplate the inclusion of civil liability as part of the penalty for violation thereof, respondent court opined that when he was instructed to pay the sum of P206,320.00 less the value of the spare parts recovered, such imposition refers to his civil liability, in line with the penal axiom that a person criminally liable is also civilly liable.chanroblesvirtualawlibrary chanrobles virtual law library

Did respondent court err in upholding the judgment of the trial court? chanrobles virtual law library

In his efforts to impress an affirmative response to this basic query, petitioner formulates four propositions which all boil down to the ultimate issue of proof beyond reasonable doubt to support conviction.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner entertains a different perception on the alleged intrinsic substance of the People's evidence by suggesting that the prosecution witnesses testified against him so that the private complainant would not press charges against the prosecution witnesses. It is difficult to grasp petitioner's logic along this line because if this were so, then, every accusing finger collectively pointed towards a single individual will have to be construed as a mere ploy to save one's own skin against prosecution. Independently of petitioner's cold aspersion and delusion of paranoia, the pleadings submitted to this Court hardly support his pretense. An unwarranted assumption expressed by petitioner must perforce deserve scant consideration especially so when he candidly admitted that he does not know Navarro, Bahian and Pabilona who took the witness stand (p. 31, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library

To bolster petitioner's claim that the prosecution witnesses were the perpetrators of the crime of theft or robbery and are thus polluted, a portion of private complainant Loui Anton Bond's statement was even lifted from the stenographic notes:

Court: chanrobles virtual law library

Q. The NPA's told you about the cannibalization of your heavy equipment(s) ? chanrobles virtual law library

A. Correct, they told me that my heavy equipment(s) were cannibalized. When I was released and came back to Cagayan de Oro City and lots of people from the Tuburan informed me that my heavy equipment(s) were cannibalized by Sgt. Bacalso and Barangay Captain Pabilona. (TSN, 2/2/89, p. 9; Emphasis supplied)

but the foregoing open-court declaration does not exclude petitioner's culpability subsequent to the loss of the heavy equipment. It may convey the message that it was Sgt. Bacalso and Barangay Captain Pabilona who carted away the spare parts, but it does not necessarily follow that petitioner did not get his other end of the bargain, more so when it was established that the things ripped off were loaded on thence unloaded from his truck and kept in his bodega whose door was even closed thereafter per his instructions (p. 32, Rollo).chanroblesvirtualawlibrary chanrobles virtual law library

Further to the argument concerning the non-inclusion of the prosecution witnesses as additional accused in the case for violation of the Anti-Fencing Law, it may be observed that this bare assertion overlooks the fact that it is the fiscal, as a quasi-judicial officer, who assumes full discretion and control of the case and this faculty may not be interfered with, for a prosecutor may not be compelled by mandamus to file a criminal information where he is convinced that he does not have the necessary evidence against an individual (Section 5, Rule 110,Revised Rules on Criminal Procedure; Quizo vs. Sandiganbayan, 149 SCRA 108 [1987]; 2 Regalado, Remedial Law Compendium, Sixth Rev. Ed., 1989, p. 195). Verily, the matter of prosecuting witnesses (Reyes vs. Camilon, 192 SCRA 445 [1990]; 4 Herrera, Remedial Law, 1992 Ed., p. 39).chanroblesvirtualawlibrary chanrobles virtual law library

On the aspect of animus furandi, petitioner is of the belief that this element was not clearly established by the People's evidence and he, therefore, draws the conclusion that respondent court seriously erred in presuming the existence of intent to gain. Again, this supposition ignores the fact that

intent to gain is a mental state, the existence of which is demonstrated by the overt acts of a person (Soriano vs. People, 88 Phil., 368 [1951]; 1Reyes, Revised Penal Code, Eleventh Rev. Ed., 1991, p. 45; 1 Aquino, Revised Penal Code, 1988 Ed., p. 197). And what was the external demeanor which petitioner showed from the which the trial court and respondent court inferred animus furandi? These circumstances were vividly spelled in the body of the judgment which petitioner chose to blandly impugn and over which he remains indifferent even at this crucial stage. Withal, the sinister mental state is presumed from the commission of an unlawful act in bringing out the tires from his bodega which were loaded on his pick-up (People vs. Sia Teb Ban, 54 Phil., 52 [1929]; 1 Reyes, supra at p. 46; Section 3(b), Rule 131, Revised Rules on Evidence). At any rate, dolo is not required in crimes punished by a special statute like the Anti-Fencing Law of 1979 (U.S. vs. Go Chico, 14 Phil. 128 [1909]; 1 Reyes, supra at p. 58) because it is the act alone, irrespective of the motives which constitutes the offense (U.S. vs. Siy Cong Bieng, et al., 30 Phil., 577 (1915); 1 Reyes, supra, at p. 59; 1 Aquino, supra, at p. 52). Verily, when it was proved that petitioner committed the unlawful acts alleged in the information, it was properly presumed that they were committed with full knowledge and with criminal intent, and it was incumbent upon him to rebut such a presumption - a burden which petitioner regrettably failed to discharge (United States vs. Tria, 17 Phil., 303 (1910); 1 Aquino, supra, at p. 45). Moreover, the presumption of fencing under Section 5 of Presidential Decree No. 1612 that:

Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

must be upheld in the light of petitioner's shallow demurrer premised on a denial and abili, since a disputable presumption on this score is sufficient until overcome by contrary evidence (Sibal and Salazar, Compendium on Evidence, Second Ed., 1988, p. 290).

Lastly, it is puerile for petitioner to contend that the order for him to pay the sum of P206,320.00, less the value of the spare parts recovered in the possession of Sgt. Pabatian, as civil indemnity is unauthorized under Presidential Decree No. 1612, because Section 3 (a) thereof includes the accessory penalty pertaining theretovis-a-vis Article 104 of the Revised Penal Code:

Sec. 3. Penalties. - Any person guilty of fencing shall be punished as hereunder indicated: chanrobles virtual law library

a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property 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. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

There is thus no ambiguity to speak of considering that the message of the aforequoted section is too clear to need clarification.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is hereby dismissed and the decision of the Court of Appeals dated February 15, 1991 is hereby AFFIRMED.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Home > ChanRobles Virtual Law Library > Philippine Supreme Court Jurisprudence > G.R. No. 77368

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

 

G.R. No. 77368 October 5, 1993

THE PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. JOSE C. DE GUZMAN, PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 93, AND SPOUSES DANILO A. ALCANTARA AND ISABELITA ESGUERRA-ALCANTARA, Respondents.

VITUG, J.:

Is the crime of "fencing" a continuing offense that could allow the filing of an information therefor in the place where the robbery or theft is committed and not necessarily where the property, unlawfully taken is found to have later been acquired? chanrobles virtual law library

The above query is the sole issue in this Petition for certiorari and mandamus filed by the People of the Philippines, praying for the reversal, annulment and setting aside of the Order of 28 February 1986 1 of the respondent Judge, who has ruled in the negative, as well as his Order, dated 21 March 1986, 2 denying the motion for reconsideration. The petitioner prays that the respondent Judge be directed to assume jurisdiction over, and to proceed with the trial of, the criminal case.chanroblesvirtualawlibrary chanrobles virtual law library

On 09 September 1985, robbery was committed in Quezon City in the house of Jose L. Obillos, Sr., where various pieces of precious jewelry alleged to be worth millions of pesos were taken. An information, dated 30 September 1985, was instituted against the perpetrators in the Regional Trial Court of Quezon City, Branch 101, docketed thereat asCriminal Case No. G.R. No. 42078. 3 chanrobles virtual law library

Subsequently, an information, dated 22 October

1985, for violation of Presidential Decree No. 1612, otherwise known as the "Anti-Fencing Law," was also filed with the Regional Trial Court of Quezon City, Branch 93, docketed as Criminal Case No. 42433, against herein respondent spouses Danilo A. Alcantara and Isabelita Esguerra-Alcantara, from whose possession the jewelries stolen were recovered in Antipolo, Rizal. 4 chanrobles virtual law library

The trial court, acting on the motion to quash filed by the accused [now private respondents], issued the now questioned order of 28 February 1986, viz:

Before the Court is a Motion to Quash, filed by the accused thru counsel, praying that the information filed against both accused be quashed, on the ground that the Court has no jurisdiction to try the offense charged. Among others, the motion alleges, that as per police investigation, the crime took place in Antipolo, Rizal. For this reason, Violation of Presidential Decree No. 1612 is an independent crime, separate and distinct from that of Robbery. The accused claims, likewise, that jurisdiction to try the same is with the Court within which territorial jurisdiction, the alleged fencing took place.chanroblesvirtualawlibrary chanrobles virtual law library

The Prosecution filed an opposition thereto, alleging among others, that there is nothing in the law which prohibits the filing of a case of fencing in the court under whose jurisdiction the principal offense of robbery was committed. The prosecution claims further, that the consideration in the enactment of PD 1612 was to impose a heavier penalty on persons who profit by the effects of the crimes robbery or theft.chanroblesvirtualawlibrary chanrobles virtual law library

On this point, we should not lose sight of the fact

that in all criminal prosecutions, the action shall be instituted and tried in the court of the Municipality or Province wherein the offense was committed, or anyone of the essential ingredients thereof took place. 5

Since the alleged act of fencing took place in Antipolo, Rizal, outside the territorial jurisdiction of this Court, and considering that all criminal prosecutions must be instituted and tried in the Municipality or Province where the offense took place, this Court, necessarily, does not have jurisdiction over the instant case.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the above-entitled case is hereby QUASHED, without prejudice to the filing of the corresponding action against the accused in the Court having proper jurisdiction.

The private prosecutor's motion for reconsideration was denied in the court's order of 21 March 1986.chanroblesvirtualawlibrary chanrobles virtual law library

Hence, the instant petition.chanroblesvirtualawlibrary chanrobles virtual law library

The Solicitor General argues that since an essential element of the crime of fencing is the commission of robbery, in this case committed in Quezon City, the information therefor filed in said City accords with the provisions of Rule 110 of the 1985 Rules on Criminal Procedure, and the refusal of the Court a quo to assume and exercise jurisdiction thereover constitutes a serious error of law and a grave abuse of discretion. He theorizes that fencing is a "continuing offense." He explains that the Anti-Fencing Law has been enacted for the purpose of imposing a heavier penalty on persons who profit from the effects of the crime of robbery or theft, no

longer merely as accessories under Article 19, paragraph 1, of the Revised Penal Code, but as equally guilty with the perpetrators of the robbery or theft itself.chanroblesvirtualawlibrary chanrobles virtual law library

In People vs. Ledesma, 6 we said:

. . . A "continuous crime" is a single crime consisting of a series ofacts arising from a single criminal resolution or intent not susceptible of division. According to Cuello Calon, when the actor, there being unity of purpose and of right violated, commits diverse acts each of which, although of a delictual character merely constitutes a partial execution of a single particular delict, such concurrence of delictual acts is called a "delito continuado." For it to exist there should be plurality of acts performed separately during a period of time; unity of penal provision infringed upon or violated; unity of criminal intent or purpose, which means that two or more violations of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim.

Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything. 7 "Fencing", upon the other hand, is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. 8 chanrobles virtual law library

The crimes of robbery and fencing are clearly then two distinct offenses. The law on fencing does not

require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. True, the object property in fencing must have been previously taken by means of either robbery or theft but the place where the robbery or theft occurs is inconsequential. It may not be suggested, for instance, that, in the crime of bigamy which presupposes a prior subsisting marriage of an accused, the case should thereby be triable likewise at the place where the prior marriage has been contracted. 9 chanrobles virtual law library

We are not unaware of a number of instances 10 when the Court would allow a change of venue in criminal cases "whenever the interest of justice and truth so demand, and there are serious and weighty reasons to believe that a trial by the court that originally had jurisdiction over the case would not result in a fair and impartial trial and lead to a miscarriage of justice." 11 Here, however, we do not see the attendance of such compelling circumstances, nor are we prepared to state that the lower court gravely abused its discretion in its questioned orders.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the instant petition for certiorari and mandamus is DISMISSED, and the orders appealed from are hereby AFFIRMED.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

RAMON C. TAN,Petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

PARDO, J.:

The case before the Court is an appeal via certiorari from a decision of the Court of Appeals* affirming that of the Regional Trial Court of Manila, Branch 19,**convicting petitioner of the crime of fencing.

Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991, Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass screws were missing. She conducted an inventory and discovered that propellers and stocks valued at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he admitted that he and his companion Gaudencio Dayop stole from the complainants warehouse some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito Mendez asked for complainants forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought the stolen items and who paid the amount of P13,000.00, in cash to Mendez and

Dayop, and they split the amount with one another. Complainant did not file a case against Manuelito Mendez and Gaudencio Dayop.

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

That on or about the last week of February 1991, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously knowingly receive, keep, acquire and possess several spare parts and items for fishing boats all valued at P48,130.00 belonging to Rosita Lim, which he knew or should have known to have been derived from the proceeds of the crime of theft.

Contrary to law.

Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the crime charged and waived pre-trial. To prove the accusation, the prosecution presented the testimonies of complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez.

On the other hand, the defense presented Rosita Lim and Manuelito Mendez as hostile witnesses and petitioner himself. The testimonies of the witnesses were summarized by the trial court in its decision, as follows:

ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the business of manufacturing propellers, bushings, welding rods, among others (Exhibits A, A-1, and B). That sometime in February 1991, after one of her employees left the company, she discovered that some of the manufactured spare parts were missing, so that on February 19, 1991, an inventory was conducted and it was found that some welding rods and propellers, among others, worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the person who recommended Mr. Mendez to her. Subsequently, Mr. Mendez was arrested in the Visayas, and upon arrival in Manila, admitted to his having stolen the missing spare parts sold then to Ramon Tan. She then talked to Mr. Tan, who denied having bought the same.

When presented on rebuttal, she stated that some of their stocks were bought under the name of Asia Pacific, the guarantor of their Industrial Welding Corporation, and stated further that whether the stocks are bought under the name of the said corporation or under the name of William Tan, her husband, all of these items were actually delivered to the store at 3012-3014 Jose Abad Santos Street and all paid by her husband.

That for about one (1) year, there existed a business relationship between her husband and Mr. Tan. Mr. Tan used to buy from them stocks of propellers while they likewise bought from the former brass woods, and that there is no reason whatsoever why she has to frame up Mr. Tan.

MANUELITO MENDEZ stated that he worked as helper at Bueno Metal Industries from November 1990 up to February 1991. That sometime in the third week of February 1991, together with Gaudencio Dayop, his co-employee, they took from the warehouse of Rosita Lim some boat spare parts, such as bronze and stainless propellers, brass screws, etc. They delivered said stolen items to Ramon Tan, who paid for them in cash in the amount of P13,000.00. After taking his share (one-half (1/2) of the amount), he went home directly to the province. When he received a letter from his uncle, Victor Sy, he decided to return to Manila. He was then accompanied by his uncle to see Mrs. Lim, from whom he begged for forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit prepared by a certain Perlas, a CIS personnel, subscribed to before a Notary Public (Exhibits C and C-1).

VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs. Rosita Lim, the former being the nephew of his wife while the latter is his auntie. That sometime in February 1991, his auntie called up and informed him about the spare parts stolen from the warehouse by Manuelito Mendez. So that he sent his son to Cebu and requested his kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest and bring Mendez back to Manila. When Mr. Mendez was brought to Manila, together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the pier after which they proceeded to the house of his auntie. Mr. Mendez admitted to him having stolen the missing items and sold to Mr. Ramon Tan in Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied the same.

ROSITA LIM, when called to testify as a hostile witness, narrated that she owns Bueno Metal Industries located at 301 Jose Abad Santos Street, Tondo, Manila. That two (2) days after Manuelito Mendez and Gaudencio Dayop left, her husband, William Tan, conducted an inventory and discovered that some of the spare parts worth P48,000.00 were missing. Some of the missing items were under the name of Asia Pacific and William Tan.

MANUELITO MENDEZ, likewise, when called to testify as a hostile witness, stated that he received a subpoena in the Visayas from the wife of Victor Sy, accompanied by a policeman of Buliloan, Cebu on April 8, 1991. That he consented to come to Manila to ask forgiveness from Rosita Lim. That in connection with this case, he executed an affidavit on April 12, 1991, prepared

by a certain Atty. Perlas, a CIS personnel, and the contents thereof were explained to him by Rosita Lim before he signed the same before Atty. Jose Tayo, a Notary Public, at Magnolia House, Carriedo, Manila (Exhibits C and C-1).

That usually, it was the secretary of Mr. Tan who accepted the items delivered to Ramon Hardware. Further, he stated that the stolen items from the warehouse were placed in a sack and he talked to Mr. Tan first over the phone before he delivered the spare parts. It was Mr. Tan himself who accepted the stolen items in the morning at about 7:00 to 8:00 oclock and paid P13,000.00 for them.

RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged in selling hardware (marine spare parts) at 944 Espeleta Street, Sta. Cruz, Manila.

He denied having bought the stolen spare parts worth P48,000.00 for he never talked nor met Manuelito Mendez, the confessed thief. That further the two (2) receipts presented by Mrs. Lim are not under her name and the other two (2) are under the name of William Tan, the husband, all in all amounting toP18,000.00. Besides, the incident was not reported to the police (Exhibits 1 to 1-g).

He likewise denied having talked to Manuelito Mendez over the phone on the day of the delivery of the stolen items and could not have accepted the said items personally for everytime (sic) goods are delivered to his store, the same are being accepted by his staff. It is not possible for him to be at his office at about 7:00 to 8:00 oclock in the morning, because he usually reported to his office at 9:00 oclock. In connection with this case, he executed a counter-affidavit (Exhibits 2 and 2-a).[1

On August 5, 1996, the trial court rendered decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the accused RAMON C. TAN is hereby found guilty beyond reasonable doubt of violating the Anti-Fencing Law of 1979, otherwise known as Presidential Decree No. 1612, and sentences him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the value of the stolen merchandise purchased by him in the sum of P18,000.00.

Costs against the accused.

SO ORDERED.

Manila, Philippines, August 5, 1996.

(s/t) ZENAIDA R. DAGUNA

Judge

Petitioner appealed to the Court of Appeals.

After due proceedings, on January 29, 1998, the Court of Appeals rendered decision finding no error in the judgment appealed from, and affirming the same in toto.

In due time, petitioner filed with the Court of Appeals a motion for reconsideration; however, on June 16, 1998, the Court of Appeals denied the motion.

Hence, this petition.

The issue raised is whether or not the prosecution has successfully established the elements of fencing as against petitioner.[2

We resolve the issue in favor of petitioner.

Fencing, as defined in Section 2 of P.D. No. 1612 is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.[3

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

The crime of theft is committed if the taking is without violence against or intimidation of persons nor force upon things.[5

The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft.[6

Before the enactment of P. D. No. 1612 in 1979, the fence could only be prosecuted as an accessory after the fact of robbery or theft, as the term is defined in Article 19 of the Revised Penal Code, but the penalty was light as it was two (2) degrees lower than that prescribed for the principal.[7

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

In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of fencing as follows:

1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

4. There is on the part of the accused, intent to gain for himself or for another.[11

Consequently, the prosecution must prove the guilt of the accused by establishing the existence of all the elements of the crime charged. [12

Short of evidence establishing beyond reasonable doubt the existence of the essential elements of fencing, there can be no conviction for such offense.[13 It is an ancient principle of our penal system that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9).[14

In this case, what was the evidence of the commission of theft independently of fencing?

Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, a crime of robbery or theft has been committed.

There was no sufficient proof of the unlawful taking of anothers property. True, witness Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from complainant to petitioner. However, an admission or confession acknowledging guilt of an offense may be given in evidence only against the person admitting or confessing.[15 Even on this, if given extra-judicially, the confessant must have the assistance of counsel; otherwise, the admission would be inadmissible in evidence against the person so admitting.[16 Here, the extra-judicial confession of witness Mendez was not given with the assistance of counsel, hence, inadmissible against the witness. Neither may such extra-judicial confession be considered evidence against accused.[17 There must be corroboration by evidence of corpus delicti to sustain a finding of guilt.[18 Corpus delicti means the body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed.[19 The essential elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against persons or force upon things (U. S. vs. De Vera, 43 Phil. 1000).[20 In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking.[21 In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti.[22

What is more, there was no showing at all that the accused knew or should have known that the very stolen articles were the ones sold to him. One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the

acquaintance with facts, or if he has something within the minds grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. On the other hand, the words should know denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence.[23

Without petitioner knowing that he acquired stolen articles, he can not be guilty of fencing.[24

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

WHEREFORE, the Court REVERSES andSETS ASIDE the decision of the Court of Appeals in CA-G.R. CR. No. 20059 and hereby ACQUITS petitioner of the offense charged in Criminal Case No. 92-108222 of the Regional Trial Court, Manila.

Costs de oficio.

SO ORDERED.