ARTICLE 308 THEFT

VALENZUELA vs. PEOPLE (2007)

D E C I S I O N 

TINGA, J.:

 

          This case aims for prime space in the firmament of our criminal law jurisprudence.

Petitioner effectively concedes having performed the felonious acts imputed against him, but

instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the

felony in its consummated stage of which he was convicted. The proposition rests on a common

theory expounded in two well-known decisions[1] rendered decades ago by the Court of Appeals,

upholding the existence of frustrated theft of which the accused in both cases were found guilty.

However, the rationale behind the rulings has never been affirmed by this Court.

 

As far as can be told,[2] the last time this Court extensively considered whether an

accused was guilty of frustrated or consummated  theft  was in 1918, in People v. Adiao.[3] A

more cursory treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in

1984, in Empelis v. IAC.[5]   This petition now gives occasion for us to finally and fully measure if

or how frustrated theft is susceptible to commission under the Revised Penal Code.

 

I.

 

          The basic facts are no longer disputed before us. The case stems from an

Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon)

with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were

sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex

along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at

the open parking area of the supermarket. Lago saw petitioner, who was wearing an

identification card with the mark “Receiving Dispatching Unit (RDU),” hauling a push cart with

cases of detergent of the well-known “Tide” brand. Petitioner unloaded these cases in an open

parking space, where Calderon was waiting. Petitioner then returned inside the supermarket,

and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded

these boxes to the same area in the open parking space.[7]

 

 

 

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and

directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons

of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago,

who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked

petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot,

but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and

Calderon were apprehended at the scene, and the stolen merchandise recovered. [8] The filched

items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25

grams, and three (3) additional cases of detergent, the goods with an aggregate value

of P12,090.00.[9]

 

          Petitioner and Calderon were first brought to the SM security office before they were

transferred on the same day to the Baler Station II of the Philippine National Police, Quezon

City, for investigation. It appears from the police investigation records that apart from petitioner

and Calderon, four (4) other persons were apprehended by the security guards at the scene and

delivered to police custody at the Baler PNP Station in connection with the incident. However,

after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and

Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared

on 20 May 1994, the day after the incident.[10]  

 

          After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed

having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon

of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion

and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he

was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor,

Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to

buy snacks inside the supermarket. It was

while  they  were  eating  that they  heard  the  gunshot  fired by

Lago,  leading  them  to  head out  of  the  building to check what was transpiring. As they were

outside, they were suddenly “grabbed” by a security guard, thus commencing their detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,[13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a

tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot

caused him and the other people at the scene to start running, at which point he was

apprehended by Lago and brought to the security office. Petitioner claimed he was detained at

the security office until around 9:00 p.m., at which time he and the others were brought to the

Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but

he was detained overnight, and eventually brought to the prosecutor’s office where he was

charged with theft.[14] During petitioner’s cross-examination, he admitted that he had been

employed as a “bundler” of GMS Marketing, “assigned at the supermarket” though not at SM.[15]

 

          In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC)

of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of

consummated theft. They were sentenced to an indeterminate prison term of two (2) years

of prision correccional as minimum to seven (7) years ofprision mayor as maximum.[17] The RTC

found credible the testimonies of the prosecution witnesses and established the convictions on

the positive identification of the accused as perpetrators of the crime. 

Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a

brief[19] with the Court of Appeals, causing the appellate court to deem Calderon’s appeal as

abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he

should only be convicted of frustrated theft since at the time he was apprehended, he was never

placed in a position to freely dispose of the articles stolen.[20] However, in its Decision dated 19

June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioner’s conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that petitioner’s conviction

“be modified to only of Frustrated Theft.”[24]

 

          Even in his appeal before the Court of Appeals, petitioner effectively conceded both his

felonious intent and his actual participation in the theft of several cases of detergent with a total

value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to

consider a factual scenario other than that presented by the prosecution, as affirmed by the

RTC and the Court of Appeals. The only question to consider is whether under the given facts,

the theft should be deemed as consummated or merely frustrated.

 

II.

 

          In arguing that he should only be convicted of frustrated theft, petitioner cites [26] two

decisions rendered many years ago by the Court of Appeals: People v. Diño[27]  and People

v. Flores.[28]Both decisions elicit the interest of this Court, as they modified trial court convictions

from consummated to frustrated theft and involve a factual milieu that bears similarity to the

present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the

appellate court did not expressly consider the import of the rulings when it affirmed the

conviction.

 

It is not necessary to fault the Court of Appeals for giving short shrift to

the Diño and Flores rulings since they have not yet been expressly  adopted  as precedents by

this Court. For whatever reasons, the occasion to define or debunk the crime of frustrated theft

has not come to pass before us. Yet despite the silence on our part, Diñoand Flores have

attained a level of renown reached by very few other appellate court rulings. They are

comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in

criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated

theft.

 

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios

that populate criminal law exams more than they actually occur in real life. Indeed, if we finally

say thatDiño and Flores are doctrinal, such conclusion could profoundly influence a multitude of

routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the

thief having to exit with the stolen property through a supervised egress, such as a supermarket

checkout counter or a parking area pay booth, may easily call for the application

of Diño and Flores. The fact that lower courts have not hesitated to lay down convictions for

frustrated theft further validates that Diño and Flores and the theories offered therein on

frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for

us to examine whether those theories are correct and should continue to influence prosecutors

and judges in the future.     

III.

 

To delve into any extended analysis of Diño and Flores, as well as the specific issues

relative to “frustrated theft,” it is necessary to first refer to the basic rules on the three stages of

crimes under our Revised Penal Code.[30]

 

          Article 6 defines those three stages, namely the consummated, frustrated and attempted

felonies. A felony is consummated “when all the elements necessary for its execution and

accomplishment are present.” It is frustrated “when the offender performs all the acts of

execution which would produce the felony as a consequence but which, nevertheless, do not

produce it by reason of causes independent of the will of the perpetrator.” Finally, it is attempted

“when the offender commences the commission of a felony directly by overt acts, and does not

perform all the acts of execution which should produce the felony by reason of some cause or

accident other than his own spontaneous desistance.”

 

          Each felony under the Revised Penal Code has a “subjective phase,” or that portion of the

acts constituting the crime included between the act which begins the commission of the crime

and the last act performed by the offender which, with prior acts, should result in the

consummated crime.[31] After that point has been breached, the subjective phase ends and the

objective phase begins.[32] It has been held that if the offender never passes the subjective

phase of the offense, the crime is merely attempted. [33] On the other hand, the subjective phase

is completely passed in case of frustrated crimes, for in such instances, “[s]ubjectively the crime

is complete.”[34]

 

Truly, an easy distinction lies between consummated and frustrated felonies on one

hand, and attempted felonies on the other. So long as the offender fails to complete all the acts

of execution despite commencing the commission of a felony, the crime is undoubtedly in the

attempted stage. Since the specific acts of execution that define each crime under the Revised

Penal Code are generally enumerated in the code itself, the task of ascertaining whether a

crime is attempted only would need to compare the acts actually performed by the accused as

against the acts that constitute the felony under the Revised Penal Code.

 

          In contrast, the determination of whether a crime is frustrated or consummated

necessitates an initial concession that all of the acts of execution have been performed by the

offender. The critical distinction instead is whether the felony itself was actually produced by the

acts of execution. The determination of whether the felony was “produced” after all the acts of

execution had been performed hinges on the particular statutory definition of the felony.  It is the

statutory definition that generally furnishes the elements of each crime under the Revised Penal

Code, while the elements in turn unravel the particular requisite acts of execution and

accompanying criminal  intent.

 

          The long-standing Latin maxim “actus non facit reum, nisi mens sit rea” supplies an

important characteristic of a crime, that “ordinarily, evil intent must unite with an unlawful act for

there to be a crime,” and accordingly, there can be no crime when the criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been defined

before as “a guilty mind, a guilty or wrongful purpose or criminal intent,”[37] and “essential for

criminal liability.”[38] It follows that the statutory definition of our mala in se crimes must be able to

supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably

held that “a criminal law that contains no mens rea requirement infringes on constitutionally

protected rights.”[39] The criminal statute must also provide for the overt acts that constitute the

crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must

also be anactus reus.[40]

 

 

 

It is from the actus reus and the mens rea, as they find expression in the criminal

statute, that the felony is produced.  As a postulate in the craftsmanship of constitutionally

sound laws, it is extremely preferable that the language of the law expressly provide when the

felony is produced. Without such provision,  disputes would inevitably ensue on the elemental

question whether or not a crime was committed, thereby presaging the undesirable and legally

dubious set-up under which the judiciary is assigned the legislative role of defining crimes.

Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory

definition of any felony, a decisive passage or term is embedded  which attests when the felony

is  produced by the acts of execution. For example, the statutory definition of murder or

homicide expressly uses the phrase “shall kill another,” thus making it clear that the felony is

produced by the death of the victim, and conversely, it is not produced if the victim survives.

 

          We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal

Code, its elements are spelled out as follows:

 Art. 308. Who are liable for theft.— Theft is committed by any person

who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.

Theft is likewise committed by:

1.   Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;

2.   Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and

3.   Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

 

          Article 308 provides for a general definition of theft, and three alternative and highly

idiosyncratic means by which theft may be committed.[41] In the present discussion, we need to

concern ourselves only with the general definition since it was under it that the prosecution of

the accused was undertaken and sustained. On the face of the definition, there is only one

operative act of execution by the actor involved in theft ─ the taking of personal property of

another. It is also clear from the provision that in order that such taking may be qualified as

theft, there must further be present the descriptive circumstances that the taking was with intent

to gain; without force upon things or violence against or intimidation of persons; and it was

without the consent of the owner of the property.

 

Indeed, we have long recognized the following elements of theft as provided for in Article

308 of the Revised Penal Code, namely:  (1) that there be taking of personal property; (2) that

said property belongs to another; (3) that the taking be done with intent to gain; (4) that the

taking be done without the consent of the owner; and (5) that the taking be accomplished

without the use of violence against or intimidation of persons or force upon things.[42]

 

In his commentaries, Judge Guevarra traces the history of the definition of theft, which

under early Roman law as defined by Gaius, was so broad enough as to encompass “any kind

of physical handling of property belonging to another against the will of the owner,”[43] a definition

similar to that by Paulus that a thief “handles (touches, moves) the property of

another.”[44] However, with the Institutes of Justinian, the idea had taken hold that more than

mere physical handling, there must further be an intent of acquiring gain from the object, thus:

“[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus

possessinisve.”[45] This requirement  of animo lucrandi, or intent to gain, was maintained in both

the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46]

 

In Spanish law, animo lucrandi was compounded withapoderamiento, or “unlawful

taking,” to characterize theft. Justice Regalado notes that the concept of apoderamiento once

had a controversial interpretation and application. Spanish law had already discounted the belief

that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled

with “the intent to appropriate the object in order to constituteapoderamiento; and to appropriate

means to deprive the lawful owner of the thing.”[47] However, a conflicting line of cases decided

by the Court of Appeals ruled, alternatively, that there must be permanency in the taking [48] or an

intent to permanently deprive the owner of the stolen property; [49] or that there was no need for

permanency in the taking or in its intent, as the mere temporary possession by the offender or

disturbance of the proprietary rights of the owner already constituted apoderamiento.

[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no

need of an intent to permanently deprive the owner of his property to constitute an unlawful

taking.[51]

 

 

 

 

          So long as the “descriptive” circumstances that qualify the taking are present,

including animo lucrandi and apoderamiento, the completion of the operative act that is the

taking of personal property of another establishes, at least, that the transgression went beyond

the attempted stage. As applied to the present case, the moment petitioner obtained physical

possession of the cases of detergent and loaded them in the pushcart, such seizure motivated

by intent to gain, completed without need to inflict violence or intimidation against persons nor

force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner

forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

 

          On the critical question of whether it was consummated or frustrated theft, we are obliged

to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision,

the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily

sufficient to produce theft as a consequence, “do not produce [such theft] by reason of causes

independent of the will of the perpetrator.” There are clearly two determinative factors to

consider: that the felony is not “produced,” and that such failure is due to causes independent of

the will of the perpetrator. The second factor ultimately depends on the evidence at hand in

each particular case. The first, however, relies primarily on a doctrinal definition attaching to the

individual felonies in the Revised Penal Code[52] as to when a particular felony is “not produced,”

despite the commission of all the acts of execution.

 

          So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to

inquire as to how exactly is the felony of theft “produced.” Parsing through the statutory

definition of theft under Article 308, there is one apparent answer provided in the language of

the law — that theft is already “produced” upon the “tak[ing of] personal property of another

without the latter’s consent.”

 

          U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was

charged with theft after he abstracted a leather belt from the baggage of a foreign national and

secreted the item in his desk at the Custom House. At no time was the accused able to “get the

merchandise out of the Custom House,” and it appears that he “was under observation during

the entire transaction.”[54] Based apparently on those two circumstances, the trial court had

found him guilty, instead, of frustrated theft. The Court reversed, saying that neither

circumstance was decisive, and holding instead that the accused was guilty of consummated

theft, finding that “all the elements of the completed crime of theft are present.” [55] In support of

its conclusion that the theft was consummated, the Court cited three (3) decisions of the

Supreme Court of Spain, the discussion of which we replicate below:

            The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.) 

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

 The defendant penetrated into a room of a certain house and by means of

a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]

 

         

          It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein,

that the criminal actors in all these cases had been able to obtain full possession of the personal

property prior to their apprehension. The interval between the commission of the acts of theft

and the apprehension of the thieves did vary, from “sometime later” in the 1898 decision; to the

very moment the thief had just extracted the money in a purse which had been stored as it was

in the 1882 decision; and before the thief had been able to spirit the item stolen from the

building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such

intervals proved of no consequence in those cases, as it was ruled that the thefts in each of

those cases was consummated by the actual possession of the property belonging to another.

 

          In 1929, the Court was again confronted by a claim that an accused was guilty only of

frustrated rather than consummated theft. The case is People v. Sobrevilla,[57] where the

accused, while in the midst of a crowd in a public market, was already able to abstract a

pocketbook from the trousers of the victim when the latter, perceiving the theft, “caught hold of

the [accused]’s shirt-front, at the same time shouting for a policeman; after a struggle, he

recovered his pocket-book and let go of the defendant, who was afterwards caught by a

policeman.”[58] In rejecting the contention that only frustrated theft was established, the Court

simply said, without further comment or elaboration:

 We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accused’s] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.[59]

         

          If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases

cited in the latter, in that the fact that the offender was able to succeed in obtaining physical

possession of the stolen item, no matter how momentary, was able to consummate the theft.

 

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the

position of petitioner in this case. Yet to simply affirm without further comment would be

disingenuous, as there is another school of thought on when theft is consummated, as reflected

in the Diño and Flores decisions.

 

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15

years before Flores. The accused therein, a driver employed by the United States Army, had

driven his truck into the port area of the South Harbor, to unload a truckload of materials to

waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck

from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by

an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later

contended that he had been stopped by four men who had loaded the boxes with the

agreement that they were to meet him and retrieve the rifles after he had passed the

checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals

modified the conviction, holding instead that only frustrated theft had been committed.

 

In doing so, the appellate court pointed out that the evident intent of the accused was to

let the boxes of rifles “pass through the checkpoint, perhaps in the belief that as the truck had

already unloaded its cargo inside the depot, it would be allowed to pass through the check point

without further investigation or checking.”[60] This point was deemed material and indicative that

the theft had not been fully produced, for the Court of Appeals pronounced that “the fact

determinative of consummation is the ability of the thief to dispose freely of the articles stolen,

even if it were more or less momentary.”[61] Support for this proposition was drawn from a

decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was

quoted as follows:

 Considerando que para que el apoderamiento de la cosa sustraida sea

determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.[62]

 

Integrating these considerations, the Court of Appeals then concluded:

 

 

 

 This court is of the opinion that in the case at bar, in order to make the

booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.[63] 

 

Diño thus laid down the theory that the ability of the actor to freely dispose of the items

stolen at the time of apprehension is determinative as to whether the theft is consummated or

frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores,

a case which according to the division of the court that decided it, bore “no substantial variance

between the circumstances [herein] and in [Diño].”[64] Such conclusion is borne out by the facts

in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company,

issued a delivery receipt for one empty sea van to the truck driver who had loaded the

purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck

driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal.

However, the guards insisted on inspecting the van, and discovered that the “empty” sea van

had actually contained other merchandise as well.[65] The accused was prosecuted for theft

qualified by abuse of confidence, and found himself convicted of the consummated crime.

Before the Court of Appeals, accused argued in the alternative that he was guilty only of

attempted theft, but the appellate court pointed out that there was no intervening act of

spontaneous desistance on the part of the accused that “literally frustrated the theft.” However,

the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty only of

frustrated, and not consummated, theft.

 

As noted earlier, the appellate court admitted it found “no substantial variance”

between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that

case from Diño, citing a “traditional ruling” which unfortunately was not identified in the decision

itself. However, the Court of Appeals pointed out that the said “traditional ruling” was qualified

by the words “is placed in a situation where [the actor] could dispose of its contents at

once.”[66] Pouncing on this qualification, the appellate court noted that “[o]bviously, while the

truck and the van were still within the compound, the petitioner could not have disposed of the

goods ‘at once’.” At the same time, the Court of Appeals conceded that “[t]his is entirely different

from the case where a much less bulk and more common thing as money was the object of the

crime, where freedom to dispose of or make use of it is palpably less restricted,”[67] though no

further qualification was offered what the effect would have been had that alternative

circumstance been present instead. 

 

 

 

 

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as

to whether the crime of theft was produced is the ability of the actor “to freely dispose of the

articles stolen, even if it were only momentary.” Such conclusion was drawn from an 1888

decision of the Supreme Court of Spain which had pronounced that in determining whether theft

had been consummated, “es preciso que so haga en circunstancias tales que permitan al

sustractor de aquella, siquiera sea mas o menos momentaneamente.” The qualifier “siquiera

sea mas o menos momentaneamente” proves another important consideration, as it implies that

if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the

theft could be deemed consummated. Such circumstance was not present in

either Diño orFlores, as the stolen items in both cases were retrieved from the actor before they

could be physically extracted from the guarded compounds from which the items were filched.

However, as implied in Flores, the character of the item stolen could lead to a different

conclusion as to whether there could have been “free disposition,” as in the case where the

chattel involved was of “much  less  bulk  and  more common x x x, [such] as money x x x.”[68]

 

In his commentaries, Chief Justice Aquino makes the following pointed observation on

the import of the Diño ruling:

 

 

 

 There is a ruling of the Court of Appeals that theft is consummated when

the thief is able to freely dispose of the stolen articles even if it were more or less momentary. Or as stated in another case[[69]], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems to have been based on Viada’s opinion that in order the theft may be consummated, “es preciso que se haga en circumstancias x x x [[70]]”[71]

 

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other

cases, also states that “[i]n theft or robbery the crime is consummated after the accused had

material possession of the thing with intent to appropriate the same, although his act of making

use of the thing was frustrated.”[72]

 

There are at least two other Court of Appeals rulings that are at seeming variance with

the Diño and Flores rulings. People v. Batoon[73] involved an accused who filled a container with

gasoline from a petrol pump within view of a police detective, who followed the accused onto a

passenger truck where the arrest was made. While the trial court found the accused guilty of

frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated

qualified theft, finding that “[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v.

Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime

of theft.”[74]

 

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a

supply depot and loaded them onto a truck. However, as the truck passed through the

checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even

though those facts clearly admit to similarity with those in Diño, the Court of Appeals held that

the accused were guilty of consummated theft, as the accused “were able to take or get hold of

the hospital linen and that the only thing that was frustrated, which does not constitute any

element of theft, is the use or benefit that the thieves expected from the commission of the

offense.”[76]

 

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that

“[w]hen the meaning of an element of a felony is controversial, there is bound to arise different

rulings as to the stage of execution of that felony.” [77] Indeed, we can discern from this survey of

jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact,

given the disputed foundational basis of the concept of frustrated theft itself, the question can

even be asked whether there is really such a crime in the first place.

 

 

IV.

 

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and

not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this

Court’s 1984 decision in Empelis v. IAC.[78]

 

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in

the premises of his plantation, in the act of gathering and tying some coconuts. The accused

were surprised by the owner within the plantation as they were carrying with them the coconuts

they had gathered. The accused fled the scene, dropping the coconuts they had seized, and

were subsequently arrested after the owner reported the incident to the police. After trial, the

accused were convicted of qualified theft, and the issue they raised on appeal was that they

were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article

310 of the Revised Penal Code,[79] but further held that the accused were guilty only of frustrated

qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was

consummated or frustrated was raised by any of the parties. What does appear, though, is that

the disposition of that issue was contained in only two sentences, which we reproduce in full:

 However, the crime committed is only frustrated qualified theft because

petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.[80]

 

          No legal reference or citation was offered for this averment, whether Diño, Flores or the

Spanish authorities who may have bolstered the conclusion. There are indeed evident problems

with this formulation in Empelis.

 

          Empelis held that the crime was only frustrated because the actors “were not able to

perform all the acts of execution which should have produced the felon as a

consequence.”[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated

“when the offender performs all the acts of execution,” though not producing the felony as a

result. If the offender was not able to perform all the acts of execution, the crime is attempted,

provided that the non-performance  was  by  reason  of  some  cause  or accident  other  than

spontaneous desistance. Empelis  concludes that  the  crime  was frustrated because not all of

the acts of execution were performed due to the timely arrival of the owner. However, following

Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was

only attempted, especially given that the acts were not performed because of the timely arrival

of the owner, and not because of spontaneous desistance by the offenders.

 

          For these reasons, we cannot attribute weight to Empelis as we consider the present

petition. Even if the two sentences we had cited actually aligned with the definitions provided in

Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of

the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is

offered as if it were sourced from an indubitable legal premise so settled it required no further

explication.

 

          Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority

on theft.  Indeed, we cannot see howEmpelis can contribute to our present debate, except for

the bare fact that it proves that the Court had once deliberately found an accused guilty of

frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal

value is extremely compromised by the erroneous legal premises that inform it, and also by the

fact that it has not been entrenched by subsequent reliance.

 

 

 

 

          Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft

is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated

theft, it cannot present any efficacious argument to persuade us in this case. Insofar

as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction,

that decision is subject to reassessment.

 

V.

 

          At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de

España was then in place. The definition of the crime of theft, as provided then, read as follows: Son reos de hurto: 1.     Los que con ánimo de lucrarse, y sin volencia o intimidación en las

personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.

 2.      Los que encontrándose una cosa perdida y sabiendo quién es su dueño se

la apropriaren co intención de lucro. 3.      Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño

causado, salvo los casos previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.

 

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme

Court decisions were handed down. However, the said code would be revised again in 1932,

and several times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft

is now simply defined as “[e]l que, con ánimo de lucro, tomare las cosas muebles ajenas sin la

voluntad de su dueño será castigado”[82]

 

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, “la libre

disposicion” of the property is not an element or a statutory characteristic of the crime. It does

appear that the principle originated and perhaps was fostered in the realm of Spanish

jurisprudence. 

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries

on the 1870 Codigo Penal de España. Therein, he raised at least three questions for the reader

whether the crime of frustrated or consummated theft had occurred. The passage cited

in Diño was actually utilized by Viada to answer the question whether frustrated or

consummated theft was committed “[e]l que en el momento mismo de apoderarse de la cosa

ajena, viéndose sorprendido, la arroja al suelo.”[83] Even as the answer was as stated in Diño,

and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decision’s

factual predicate occasioning the statement was apparently very different from Diño, for it

appears that the 1888 decision involved an accused who was surprised by the employees of a

haberdashery as he was abstracting a layer of clothing off a mannequin, and who then

proceeded to throw away the garment as he fled.[84]

 

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites

decisions of the Supreme Court of Spain that have held to that effect. [85] A few decades later,

the esteemed Eugenio Cuello Calón pointed out the inconsistent application by the Spanish

Supreme Court with respect to frustrated theft.

 Hay frustración cuando los reos fueron sorprendidos por las guardias

cuando llevaban los sacos de harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos, conforme a lo antes expuesto, son hurtos consumados.[86]

  

Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible: 

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposición del agente. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder.   El hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis supplied)

 

 

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content

with replicating the Spanish Supreme Court decisions on the matter, Cuello Calón actually set

forth his own thought that questioned whether theft could truly be frustrated, since “pues es muy

dificil que el que hace cuanto es necesario para la consumación del hurto no lo consume

efectivamente.” Otherwise put, it would be difficult to foresee how the execution of all the acts

necessary for the completion of the crime would not produce the effect of theft.

 

This divergence of opinion convinces us, at least, that there is no weighted force in

scholarly thought that obliges us to accept frustrated theft, as proposed in Diño and Flores. A

final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to

scholastic pariah, for such a submission is hardly heretical in light of Cuello Calón’s position.

 

Accordingly, it would not be intellectually disingenuous for the Court to look at the

question from a fresh perspective, as we are not bound by the opinions of the respected

Spanish commentators, conflicting as they are, to accept that theft is capable of commission in

its frustrated stage. Further, if we ask the question whether there is a mandate of statute or

precedent that must compel us to adopt the Diño and Flores doctrines, the answer has to be in

the negative. If we did so, it would arise not out of obeisance to an inexorably higher command,

but from the exercise of the function of statutory interpretation that comes as part and parcel of

judicial review, and a function that allows breathing room for a variety of theorems in

competition until one is ultimately adopted by this Court.

V.

 

The foremost predicate that guides us as we explore the matter is that it lies in the

province of the legislature, through statute, to define what constitutes a particular crime in this

jurisdiction. It is the legislature, as representatives of the sovereign people, which determines

which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws

should be aligned with what was the evident legislative intent, as expressed primarily in the

language of the law as it defines the crime. It is Congress, not the courts, which is to define a

crime, and ordain its punishment.[88] The courts cannot arrogate the power to introduce a new

element of a crime which was unintended by the legislature, or redefine a crime in a manner

that does not hew to the statutory language. Due respect for the prerogative of Congress in

defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws

where a “narrow interpretation” is appropriate.  “The Court must take heed of language,

legislative history and purpose, in order to strictly determine the wrath and breath of the conduct

the law forbids.”[89]

 

With that in mind, a problem clearly emerges with theDiño/Flores dictum. The ability of

the offender to freely dispose of the property stolen is not a constitutive element of the crime of

theft. It finds no support or extension in Article 308, whether as a descriptive or operative

element of theft or as the mens rea or actusreus of the felony.  To restate what this Court has

repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised

Penal Code are:  (1) that there be taking of personal property; (2) that said property belongs to

another; (3) that the taking be done with intent to gain; (4) that the taking be done without the

consent of the owner; and (5) that the taking be accomplished without the use of violence

against or intimidation of persons or force upon things.[90]

 

Such factor runs immaterial to the statutory definition of theft, which is the taking, with

intent to gain, of personal property of another without the latter’s consent. While

the Diño/Floresdictum is considerate to the mindset of the offender, the statutory definition of

theft considers only the perspective of intent to gain on the part of the offender, compounded by

the deprivation of property on the part of the victim.

 

For the purpose of ascertaining whether theft is susceptible of commission in the

frustrated stage, the question is again, when is the crime of theft produced? There would be all

but certain unanimity in the position that theft is produced when there is deprivation of personal

property due to its taking by one with intent to gain. Viewed from that perspective, it is

immaterial to the product of the felony that the offender, once having committed all the acts of

execution for theft, is able or unable to freely dispose of the property stolen since the deprivation

from the owner alone has already ensued from such acts of execution. This conclusion is

reflected in Chief Justice Aquino’s commentaries, as earlier cited, that “[i]n theft or robbery the

crime is consummated after the accused had material possession of the thing with intent to

appropriate the same, although his act of making use of the thing was frustrated.”[91]

 

It might be argued, that the ability of the offender to freely dispose of the property stolen

delves into the concept of “taking” itself, in that there could be no true taking until the actor

obtains such degree of control over the stolen item. But even if this were correct, the effect

would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean

that not all the acts of execution have not been completed, the “taking not having been

accomplished.” Perhaps this point could serve as fertile ground for future discussion, but our

concern now is whether there is indeed a crime of frustrated theft, and such consideration

proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of

this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner

was completed in this case. With intent to gain, he acquired physical possession of the stolen

cases of detergent for a considerable period of time that he was able to drop these off at a spot

in the parking lot, and long enough to load these onto a taxicab.

 

Indeed, we have, after all, held that unlawful taking, orapoderamiento, is deemed

complete from the moment the offender gains possession of the thing, even if he has no

opportunity to dispose of the same.[92] And long ago, we asserted in People v.Avila:[93]

 x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of no slight importance.[94]

 

Insofar as we consider the present question, “unlawful taking” is most material in this

respect.  Unlawful taking, which is the deprivation of one’s personal property, is the element

which produces the felony in its consummated stage. At the same time, without unlawful taking

as an act of execution, the offense could only be attempted theft, if at all.

 

With these considerations, we can only conclude that under Article 308 of the Revised

Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.

 

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the

offenders therein obtained possession over the stolen items, the effect of the felony has been

produced as there has been deprivation of property. The presumed inability of the offenders to

freely dispose of the stolen property does not negate the fact that the owners have already been

deprived of their right to possession upon the completion of the taking.

 

Moreover, as is evident in this case, the adoption of the rule —that the inability of the

offender to freely dispose of the stolen property frustrates the theft — would introduce a

convenient defense  for the accused which does not reflect any legislated intent, [95] since the

Court would have carved a viable means for offenders to seek a mitigated penalty under applied

circumstances that do not admit of easy classification. It is difficult to formulate definite

standards as to when a stolen item is susceptible to free disposal by the thief. Would this

depend on the psychological belief of the offender at the time of the commission of the crime, as

implied in Diño?

 

Or, more likely, the appreciation of several classes of factual circumstances such as the

size and weight of the property, the location of the property, the number and identity of people

present at the scene of the crime, the number and identity of people whom the offender is

expected to encounter upon fleeing with the stolen property, the manner in which the stolen item

had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility

of the stolen item would come into account, relevant as that would be on whether such property

is capable of free disposal at any stage, even after the taking has been consummated.

 

All these complications will make us lose sight of the fact that beneath all the colorful

detail, the owner was indeed deprived of property by one who intended to produce such

deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were

recognized, for therein, all of the acts of execution, including the taking, have been completed. If

the facts establish the non-completion of the taking due to these peculiar circumstances, the

effect could be to downgrade the crime to the attempted stage, as not all of the acts of

execution have been performed. But once all these acts have been executed, the taking has

been completed, causing the unlawful deprivation of property, and ultimately the consummation

of the theft.

 

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet

they do not align with the legislated framework of the crime of theft. The Revised Penal Code

provisions on theft have not been designed in such fashion as to accommodate said rulings.

Again, there is no language in Article 308 that expressly or impliedly allows that the “free

disposition of the items stolen” is in any way determinative of whether the crime of theft has

been produced. Diño itself did not rely on Philippine laws or jurisprudence to bolster its

conclusion, and the later Floreswas ultimately content in relying on Diño alone for legal

support. These cases do not enjoy the weight of stare decisis, and even if they did, their

erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds

true of Empilis, a regrettably stray decision which has not since found favor from this Court. 

We thus conclude that under the Revised Penal Code, there is no crime of frustrated

theft. As petitioner has latched the success of his appeal on our acceptance of

the Diño and Flores rulings, his petition must be denied, for we decline to adopt said rulings in

our jurisdiction. That it has taken all these years for us to recognize that there can be no

frustrated theft under the Revised Penal Code does not detract from the correctness of this

conclusion. It will take considerable amendments to our Revised Penal Code in order that

frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for

legislative intent.

 

WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.

NORMA DIZON-PAMINTUAN, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

Puno and Puno for petitioner.

The Solicitor General for 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 1 which affirmed the decision of Branch 20 of the Regional Trial Court of Manila in Criminal Case No. 88-64954 2 finding 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.

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

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.

No civil liability in view of the recovery of the items, subject-matter of this case.

With costs. 4

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.

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").

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.

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

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

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

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:

Mere possession of any goods, article, item object, or anything of value which has been the subject of robbery or thievery shall be prima 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

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.

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:

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

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;

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;

4. With intent to gain for himself or for another;

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).

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)].

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

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

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 toreceive 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

Hence, this petition wherein the petitioner contends that:

I

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

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

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.

The first assigned error is without merit.

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."

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. 13 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 amalum prohibitum, and P.D. No. 1612 creates a presumption of fencing 14 and prescribes a higher penalty based on the value of the property. 15

The elements of the crime of fencing are:

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.

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.

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.

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. 16 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. 17 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. 18 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. 19

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. 20 In the early case of United States vs.Luling, 21 this 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 facieevidence 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.)

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, 22 Mr. 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

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 24 promulgated 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.

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

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

b) one set of earring (Exh. "C-3") — P15,000.00

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

These findings are based on the testimony of Mr. Encarnacion 25 and on Exhibit "C," 26 a 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 27 and 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. 28 The 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.

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.

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. 29 Such a concurrence would not occur assuming that the case was remanded to the trial court.

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.

SO ORDERED.

ERNESTO FRANCISCO y SPENOCILLA, petitioner, vs. 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 Decision[1] of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision[2] of the Regional Trial Court of Malolos, Bulacan, Branch 22, finding petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1) day ofprision 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 400,000.00One (1) White Gold Bracelet               ----       150,000.00One (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, Macario’s 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 MacarioP300 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 forP18,000.  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 Jovita’s complaint.  Pacita arrived in Camp Crame without counsel and gave a sworn statement pointing to the petitioner as the person to whom she sold Jovita’s 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 father’s 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 ofP5,000 to the policemen as a bribe, for them not to implicate him in the case.  PO1 Roldan, Jr. rejected the offer.[12] They again invited the petitioner to go with them to Camp Crame, but the petitioner refused and demanded that the policemen first secure a warrant for his arrest should they insist on taking him with them.[13]

Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal, Branch 76.[14] The case was docketed as Criminal Case No. 2005.  Adoracion was also charged with violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992.  The cases were consolidated and jointly tried.

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

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

On September 1, 1992, Jovita executed a sworn statement in the office of the police station of Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.[15] A criminal complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841.  During the preliminary investigation, Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to the petitioner for P50,000 at his shop in Meycauayan, Bulacan.  According to Pacita, she found the jewelry belonging to Jovita while she was cleaning the room in the house, and that she brought the jewelry home.[16] The court found probable cause against the petitioner, and issued a warrant for his arrest.

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

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

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

1.       In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable doubt of the crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the Revised Penal Code, and sentencing her to suffer the indeterminate sentence of Nine (9) years and Four (4) months ofprision 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 ofP1,300,000.00; 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 Jovita’s missing jewels.[19] In fact, he did not even know Jovita and met her only during the preliminary investigation of the case before the MTC of Meycauayan, Bulacan.  He, likewise, denied knowing Pacita Linghon, and claimed that he first saw her when she accompanied some policemen in civilian clothes to his shop, where he was thereafter invited to Camp Crame for investigation.[20] He saw Pacita again only during the preliminary investigation of the case.[21] The petitioner also averred that he had no transaction with Macario of whatever nature.[22]

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

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

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

1.       Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612 (Anti-Fencing Law) and is hereby 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                      P400,000.00one (1) white gold bracelet                                         150,000.00one (1) diamond ring                                                  100,000.00one (1) ring with diamond                                                     5,000.00

TOTAL VALUE                                                         P655,000.00

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

SO ORDERED.[26]

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

I

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

II

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

III

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

IV

THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-APPELLANT’S 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 court’s 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 Jovita’s 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 Pacita’s 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 onlyP50,000.[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 court’s 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 faciepresumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property. [33] The stolen property subject of the charge is not indispensable to prove fencing.  It is merely corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing.

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

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

On the second element of the crime, the trial and appellate courts held that the prosecution proved the same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005; that Pacita had confessed to Jovita that she sold some of

the jewelry to the petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision in Criminal Cases Nos. 1992 and 2005; the testimonies of Pacita and her brother Macario during the preliminary investigation of Criminal Case No. 92-13841 before the MTC of Meycauayan as shown by the transcripts of the stenographic notes taken during the proceedings; the supplemental sworn statement of Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario before the trial court.

However, we find and so hold that –

First.  Jovita’s 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 Pacita’s 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 petitioner’s shop in Meycauayan, Bulacan and sold the subject jewelry on both occasions. On further cross-examination, Macario changed his testimony anew, and declared that he sold the jewelry to the petitioner for P18,000 and not P25,000; only to change his testimony again, and declare that he sold the jewelry for P25,000. However, Macario testified during the preliminary investigation in Criminal Case No. 92-13841 that when he transacted with the petitioner for the second time, he was with a friend, and not with his sister Pacita.  On redirect examination, Macario declared that in October 1991, he and Pacita sold four (4) pieces of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on direct examination. He also testified that he and his sister sold the earrings in November 1991.  Because of the contradicting accounts made by Macario, the court made the following observations:

Court

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

a     Because I am scare[d]  here that’s why I gave the wrong answer.

q     You better think about it.

a     I was confused, Sir.[37]

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

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

Atty. Lerio

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

A     No, Sir, I do not know.

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

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

Court

Q    How did you come to know of this “Mang Erning?”

A     Only at that time when we brought the jewels.

Q    But previous to that, do you know him?

A     No.[38]

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

Atty. Lerio

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

Court

Q    No basis, when did you come to know that the jewels belong to Mrs. Rodriguez?

A     In 1992, when my sister already had a case.

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

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

Atty. Lerio

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

A     No more, I have no more time.[39]

The prosecution cannot even validly argue that the petitioner should have known which pieces of jewelry were stolen, considering that Macario was selling the same for P50,000 when the said pieces stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution failed to adduce sufficient competent evidence to prove the value of the said stolen articles.  The prosecution relied solely on the bare and uncorroborated testimony of Jovita, that they were worthP655,000:

Atty. Lerio

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

A     I own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-bracelet, white gold full of stones, diamond worth P150,000.00; 1-diamond ring with small stones worth P5,000.00.  So, all in all, the jewelry is (sic) worthP665,000.00.[40]

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

Atty. Lerio

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

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

Court

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

A     No, that is (sic) the market value several years ago.

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

A     No.  The price, if we will appraise now, is much bigger.[41]

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

Court

Q    You bought it from [a] private person?

A     Yes, Your Honor.

Atty. Bernal

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

Atty. Lerio

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

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

…[A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness cannot establish the value of jewelry and the trial court can only take judicial notice of the value of goods which are matters of public knowledge or are capable of unquestionable 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 inPeople 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 prosecution’s failure to prove his guilt beyond reasonable doubt.

SO ORDERED.

ARTICLE 310 QUALIFIED THEFT

ANTONIO AVECILLA, appellant-petitioner, vs.PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS, appellees-respondents.

 

ROMERO, J.:

This is a petition for review on certiorari of the decision dated December 20, 1976 of the Court of Appeals in CA-G.R. No. 16628-CR entitled "People of the Philippines v. Antonio Avecilla" modifying the decision of July 16, 1973 of the then Court of First Instance of Rizal, Branch 1 at Pasig finding the accused-petitioner guilty of simple theft, by convicting the accused-petitioner instead, of qualified theft and imposing on him accordingly, a higher penalty.

The accused-petitioner, Antonio Avecilla and one Juana Doe were charged before the said lower court of the crime of theft, allegedly committed as follows:

That on or about the 16th day of November, 1971, in the municipality of Mandaluyong, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and mutually helping and aiding one another, with intent of gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away one Registered Letter number 247341, delivery number 3752, valued at $500.00 belonging to one Lourdes Rodriguez de Lacson, to the damage and prejudice of the latter in the aforementioned amount of $500.00, U.S. Dollar.

Contrary to law. 1

Upon arraignment, Antonio Avecilla entered a plea of not guilty to the crime charged. 2

On the other hand, to prove his guilt, the prosecution presented the following witnesses:

1. Lourdes Rodriguez de Lacson, an employee of Litton Mills, Inc., testified that her sister, Maria Paz, a resident of Milwaukee, Wisconsin, U.S.A., sent her a registered letter containing a bank draft worth $400.00 (not $500.00 as alleged in the information). She came to know about this registered letter through another sister Carmencita Rodriguez, who, on December 17, 1971, also received another letter from Maria Paz, inquiring whether she (witness) had received Registered Letter No. 247341, which was addressed to her at Litton Mills, Inc. 3

Since she did not receive the registered letter with the bank draft, Lourdes went to the Mandaluyong Post Office and inquired about it. She was informed by the Postmaster and the teller that Registered Letter No. 247341 addressed to her was claimed on November 16, 1971 by one Antonio Avecilla, whom they knew had been messenger of Litton Mills, Inc. for more than two years. That Avecilla got the subject letter was shown by the registry notice duly signed by him. 4

Lourdes further testified that she filed a complaint in their office, as a result of which an investigation was conducted by the personnel officer of Litton Knitting Mills. Antonio Avecilla admitted in her presence that he took the said registered letter, but when she demanded its return, he refused to do so. Hence, she filed a complaint with the police. 5

On cross-examination, Lourdes stated that on December 23, 1971, she made an overseas call to her sister, Maria Paz, to request her to stop the payment of the bank draft. As a result, she was informed by Maria Paz through their sister, Carmencita Rodriguez, that a "stop payment" order, had already been made to the drawee bank. 6

2. Rosalinda Cervo, Clerk-in-charge of the registry section of Mandaluyong Post Office, declared that on November 15, 1971, she received a letter for Mrs. Lourdes Lacson, with a given address at "Litton Knitting Mills." She then issued the corresponding registry notice to the addressee which she sent through the letter carrier. The following day, November 16, 1971, Antonio Avecilla went to the post office to claim the registered letter. He presented the registry notice addressed to Lourdes Lacson with her signature appearing thereon, signed it in her presence and introduced to her a woman as Mrs. Lourdes Lacson who signed the control book.

She further testified that inasmuch as Antonio Avecilla had been, the authorized messenger of Litton Knitting Mills since 1969, she entrusted Registered Letter No. 247341 to him. However, she got to meet the lady who seemed to be the true Mrs. Lacson when the latter went to the post office to complain about the letter that she (Mrs. Lacson) had not received. When shown the control book with her alleged signatures, Mrs. Lacson repudiated the same as hers.

Subsequently, when Rosalinda Cervo informed Avecilla about Mrs. Lacson's complaint, he declared that he had placed the letter on the table of Mrs. Lacson. 7

3. Federico Rivera, Sr., Postmaster of Mandaluyong, Rizal, testified that Litton Mills, through George Litton, Sr., had previously written him a letter, authorizing one Antonio Avecilla to accept "registered mails, i.e., checks, parcels and letters" for their company and employees. 8 He recalled that on November 16, 1971, a registered letter addressed to Mrs. Lourdes Lacson c/o Litton Mills was delivered to Mr. Avecilla. 9

The defense, before presenting the accused to testifying his own behalf, called Mrs. Lourdes R. Lacson to the witness stand and asked her to introduce the letter of the cashier of Guardian State Bank, Milwaukee, Wisconsin, dated October 27, 1972 addressed to Maria Paz R. Prado,

stating that "Cashiers Check No. 27166, payable to Miss Carmencita S. Rodriguez, has not been paid as of this date." 10

4. Antonio Avecilla declared that as messenger of Litton Hills, it was his duty to get all the incoming and outgoing mails of both the Pasig and Mandaluyong branches of Litton Mills, Inc. He knew the complainant, Mrs. Lacson, because the latter was his co-employee at Litton Mills. He often mailed the letters of Mrs. Lacson for her and would also get her mail from the post office.

On November 16, 1971, he admitted having gotten from the Mandaluyong Post Office a registered letter addressed to Mrs. Lacson by signing the name of Mrs. Lacson and his name on the registry receipt. Once in the office, he left said letter on the table of Mrs. Lacson because at that time she was already out as it was past 5:00 o'clock in the afternoon. He also said that when he left the letter on the table, nobody was in the office. 11

On July 16, 1973, the trial court 12 rendered its decision finding accused-petitioner guilty beyond reasonable doubt of simple theft. The dispositive part of the decision reads:

WHEREFORE, finding the evidence sufficient to prove the guilt of the accused beyond reasonable doubt of the crime of Theft, pursuant to Article 308 and 309 of the Revised Penal Code, and applying the Indeterminate Sentence Law, he is hereby sentenced to an indeterminate penalty of SIX (6) MONTHS of arresto mayor as minimum to ONE (1) YEAR, EIGHT (8) MONTHS, TWENTY-ONE (21) DAYS of prision correccional as maximum.

SO ORDERED. 13

Not satisfied with the decision, petitioner appealed to the Court of Appeals, which on December 20, 1976, promulgated a decision finding accused-petitioner guilty of qualified theft instead of simple theft. The dispositive portion of the decision reads:

WHEREFORE, the appealed decision is hereby modified in the sense that the crime committed is hereby designated as qualified theft; and that the appellant is hereby sentenced to suffer the indeterminate penalty of from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of prision correccional, as minimum, to NINE (9) YEARS, FOUR (4) MONTHS AND ONE (1) DAY of prision mayor, as maximum. In all other respects, the decision is affirmed, with costs against accused-appellant.

IT IS SO ORDERED. 14

The motion for reconsideration having been denied, 15 petitioner elevated the case to the Supreme Court by way of the instant petition for review on certiorari.

Petitioner contends that his constitutional right to due process had been violated both substantially and procedurally. He was convicted of qualified theft instead of simple theft and imposed a penalty eight times longer than his original sentence, and his motion for reconsideration of the appellate court's decision was "denied in one stereo-typed sentence." 16 He adds that his constitutional right to be informed of the nature and cause of the

accusation against him provided for in Art. IV, Sec. 19 of the 1971 Constitution and reiterated in Rule 115, Sec. 1, par. (c) of the Rules of Court had also been violated.

Petitioner further argues that the Court of Appeals erred in convicting him of qualified theft just because the information used the term "registered letter" when "not all registered letters is (sic) mail matter." Because the information alleges that the registered letter belonged to Lourdes Rodriguez de Lacson and considering Art. 723 of the Civil Code which provides that a letter becomes the personal property of the addressee after it has been delivered, the crime charged is only simple theft.

Petitioner bewails the vagueness of the information which resulted in his "bewilderment" as to what precisely he had allegedly stolen for a registered letter per se cannot be worth $500.00. He notes that the information does not state that the registered letter contained a check. Moreover, he avers, the essential elements of theft, whether simple or qualified, had not been substantiated by the facts proven. Thus, petitioner adds, it had not been shown that he knew about the contents of the letter; there was no unlawful taking because the delivery of the letter was made in the manner prescribed by postal regulations; the allegedly stolen property had not been produced at all, and the prosecution relied solely on the "sheer self-serving testimony" of the complaining witness. 17

Petitioner's allegations necessitate a scrutiny of the information imputing to him the commission of a crime. It need not be overly stressed that the averments in the complaint or information characterize the crime to be prosecuted and determine the court before which the case must be tried. 18 What controls is not the designation of the offense but the description thereof as alleged in the information. 19

A thorough examination of the information reveals that it contains all the essential elements of the crime of theft, to wit: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence or intimidation against persons or force upon things. 20

While it is true that petitioner could not have been "bewildered" as to the nature of the charge against him had the information been more accurately crafted, it nonetheless contains all the elements of the crime of theft. Thus, it is alleged therein that petitioner, with the aid of and in conspiracy with an unidentified woman, willfully took away Registered Letter No. 24341 belonging to Lourdes Rodriguez de Lacson to her damage and prejudice. Although intent to gain is not explicitly alleged in the information, it may be presumed from the allegation that the said mail matter was unlawfully taken. 21 Since there is no allegation that the taking was accomplished with violence or intimidation against persons or force upon things, it is apparent that the charge is for the crime of theft rather than robbery.

The allegation that the subject of the taking is a registered letter categorizes the theft as a qualified rather than a simple one. This is clear from the provision of Art. 310 of the Revised Penal Code which states that qualified theft is committed if the property stolen is mail matter. In this regard, petitioner's contention that not all registered letters are mail matter is incorrect. Under Sec. 1945 of the Revised Administrative Code of 1917, first class mail matter includes letters. For the greater security of valuable mail matter, Sec. 1962 of the same Code established a registry system "under which the senders or owners of registered matter may be indemnified for losses thereof in the mails, the indemnity to be paid out of postal revenues . . .

From the foregoing, it is clear that petitioner had not been deprived of his constitutional right to be informed of the nature and cause of the accusation against him. Moreover, he may be convicted of a crime and sentenced to the corresponding penalty as long as the facts alleged in the information and proved at the trial constitute the crime for which he is convicted although different from the crime designated and charged in the information. 22 The allegations in the complaint against petitioner had been established beyond reasonable doubt at the trial. In this regard, it should be pointed out that absolute certainty of guilt is not demanded by the law as basis for conviction of any criminal charge, but moral certainty is required as to every proposition of proof requisite to constitute the offense. 23 Moral certainty convinces and satisfies the reason and conscience that a crime has indeed been committed. 24 This quantum of proof has been satisfied in this case.

In his defense, petitioner relied solely on his own unsupported testimony. His story that after taking delivery of the registered letter addressed to complainant Mrs. Lacson, he left it on her desk after office hours when no one else was in the office strains credulity. In his attempt to prove that he did not benefit from the bank draft of $400.00, he presented Mrs. Lacson herself with a letter from the cashier of the Guardian State Bank in Milwaukee, Wisconsin to the effect that the bank draft had not been paid. However, as in the crime of robbery, the fact that the accused did not benefit from the articles taken does not affect the nature of the crime because from the moment the offender gained possession of the thing, the unlawful taking is complete. 25

Petitioner's assertion that he took Mrs. Lacson's registered letter by following the postal regulations and hence, he may not be liable for its "misdelivery," falls flat in the face of the unrebutted proof that he even used a woman to misrepresent herself as Mrs. Lacson. Although no one else witnessed the deception and Rosalinda Cervo could no longer describe the woman, the undisputed fact remains that someone else other than Mrs. Lacson did sign the control book and that, thereafter, petitioner took the letter with the bank draft of $400.00 which Mrs. Lacson never received.

Although proof as to motive for the crime is essential when the evidence of the theft is circumstantial, 26 the intent to gain or animus lucrandi is the usual motive to be presumed from all furtive taking of useful property appertaining to another, unless special circumstances reveals different intent on the part of the perpetrator. 27 As earlier noted, the intent to gain may be presumed from the proven unlawful taking.

The Court of Appeals considered P6,000.00 as the equivalent of $400.00. Under Art. 309 (2) of the Revised Penal Code, the penalty for theft involving said amount is prision correccional in its minimum and medium periods, but considering that qualified theft is punishable by a penalty two degrees higher, 28 petitioner should be imposed in penalty of prision mayor in its medium and maximum periods. In the absence of aggravating and mitigating circumstances, the penalty should be the medium period of said penalty or nine (9) years, four (4) months and one (1) day of prision mayor medium to ten (10) years, eight (8) months and one (1) day of prision mayor maximum. Hence, the Court of Appeals correctly applied the Indeterminate Sentence Law and imposed the indeterminate sentence of four (4) years, two (2) months and one (1) day of prision correccional maximum as minimum penalty to nine (9) years, four (4) months and one (1) day of prision mayor medium as maximum penalty.

WHEREFORE, the modification of the decision of the trial court by the Court of Appeals finding the accused-appellant guilty, not only of simple but qualified theft, being in order, the above

imposition of the penalty prescribed by the Indeterminate Sentence Law is CORRECT. Costs against the appellant.

SO ORDERED.

PD 772

PRESCILLA TUATES and ANDRES DE LA PAZ,petitioners, vs. HON. LUCAS P. BERSAMIN, as Presiding Judge, Branch 96, RTC Quezon City, People of the Philippines and I.C. Construction, Inc., respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul the following: (1) Decision dated April 30, 1999 and Resolution dated June 9, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 46845; [1] (2) Decision dated September 10, 1997 and the Order dated January 28, 1998 issued by the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases Nos. Q-97-70428 and Q-97-70429; [2] and (3) Decision dated December 16, 1996 of the Metropolitan Trial Court of Quezon City (Branch 38) in Criminal Cases Nos. 38-0130 and 38-0131.[3]

The facts are as follows:

Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of Presidential Decree No. 772 or the Anti-Squatting Law, petitioners Prescilla Tuates and Andres de la Paz, appealed to the RTC of Quezon City (Branch 96).  Their conviction was affirmed in toto by the RTC in its decision dated September 10, 1997.  Pending resolution of their motion for reconsideration, however, Republic Act No. 8368, “An Act Repealing Presidential Decree No. 772, entitled ‘Penalizing Squatting and Other Similar Acts’” was enacted.

In its Order, dated January 28, 1998, the RTC ruled that only petitioners’ criminal convictions were extinguished by R.A. 8368, and the civil aspect, i.e., the removal of petitioners’ illegally constructed house and improvements, shall remain executory against them.[4]

On a petition for review, the Court of Appeals sustained the ruling of the RTC and denied due course to the petition per its Decision, dated April 30, 1999. [5] Petitioners’ motion for reconsideration was likewise denied by the CA in its Resolution dated June 9, 1999.[6]

Hence, the present recourse taken by petitioners, raising the following issues:

“1. That petitioners, being charged with Violation of Presidential Decree No. 772, the express repeal of said decree absolves the petitioners of any criminal or civil liability;

“2. That public respondent erred in holding that ‘the civil aspect of the judgment rendered x x x shall be executory against the accused; and

“3. That the Honorable Court of Appeals, in affirming the Order of the Regional Trial Court of Quezon City (Branch 96), dated June 9, 1999, grossly erred in ignoring applicable laws and jurisprudence.”[7]

Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction of both the criminal and civil aspects of the crime. Private respondent, however, insists that public respondents were correct in ruling that only the criminal liability was absolved and the civil liability remains inasmuch as it was not extinguished in accordance with Article 113 of the Revised Penal Code, which reads:

“ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil liability as provided in the next preceding article, the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or any other reason.”

In its Motion to Deny Due Course, private respondent also argues that the petition should now be denied as its title to the land subject of this case has already been adjudged in its favor. [8]

In its Comment, the Office of the Solicitor General, in behalf of public respondents, agrees with petitioners that both the criminal and civil liability were rendered extinct with the repeal of P.D. 772, and recommended that the assailed issuances be reversed and set aside.

We find the petition to be meritorious.

Republic Act No. 8368, otherwise known as the “Anti-Squatting Law Repeal Act of 1997,” provides:

“SECTION 1. Title. -- This Act shall be known as the ‘Anti-Squatting Law Repeal Act of 1997.’

“SEC. 2. Repeal. -- Presidential Decree No. 772, entitled ‘Penalizing Squatting and Other Similar Acts’ is hereby repealed.

“SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.

“SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed to nullify, eliminate or diminish in any way Section 27 of Republic Act No. 7279 or any of its provisions relative to sanctions against professional squatters and squatting syndicates.

“SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its publication in two (2) newspapers of national circulation.

“Approved, October 27, 1997.”[9]

The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical, definite and absolute.  As such, the act that was penalized by P.D. 772, i.e., squatting, ceases to be criminal under R.A. 8368, and the previous offense is obliterated. [10]

In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court of its authority to punish a person charged with violation of the old law prior to its repeal.  This is because an unqualified repeal of a penal law constitutes a legislative act of rendering legal what had been previously declared as illegal, such that the offense no longer exists and it is as if the person who committed it never did so.[11]Specially so, as in the present case where it is unconditionally stated inSection 3 of R.A. No. 8368 that: “(A)ll pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.”[12] Obviously, it was the clear intent of the law to decriminalize or do away with the crime of squatting.  Hence, there being no criminal liability, there is likewise no civil liability because the latter is rooted in the former.  Where an act or omission is not a crime, no person can be held liable for such act or omission.  There being no delict, logically, civil liability ex delicto is out of the question. [13]

In fact, in People v. Leachon, Jr. [14]  we implicitly recognized the unconditional repeal of P.D. 772 by R.A. 8368 when we ordered the dismissal of the petition filed in said case, without any qualification whatsoever, because of the enactment of R.A. 8368, viz.:

“But the foregoing antecedent facts and proceedings notwithstanding, the petition cannot now prosper because on October 27, 1997, Republic Act No. 8368, entitled ‘An Act Repealing Presidential Decree No. 772 Entitled ‘Penalizing Squatting and Other Similar Acts’ was “enacted.  Section 3 of the said Act provides that ‘all pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.’”[15]

This is not to say, however, that people now have the unbridled license to illegally occupy lands they do not own.  R.A. No. 8368[16] was unanimously approved by the members of the Senate of the Philippines present on its third reading.[17] The legislature considered it a major piece of legislation on the country’s anti-poverty program[18] as it sought to confront the perennial problem of poverty at its root, abolish an otherwise inutile and oppressive law, and pave the way for a genuine urban housing and land reform program.  Senate records reveal that it is the manifest intent of the authors of R.A. 8368 to decriminalize squatting but does not encourage or protect acts of squatting on somebody else’s land.[19] The law is not intended to compromise the property rights of legitimate landowners.[20] Recourse may be had in cases of violation of their property rights, such as those provided for in Republic Act No. 7279 or the Urban Development and Housing Act, penalizing professional squatters and squatting syndicates as defined therein, who commit nefarious and illegal activities[21]; the Revised Penal Code providing for criminal prosecution in cases of Trespass to Property,[22] Occupation of Real Property or Usurpation of Real Rights in Property,[23] and similar violations, and, cases for Forcible Entry and Unlawful Detainer under the Rules of Court,[24] as well as civil liability for Damages under the Civil Code.

Considering that prosecution for criminal as well as civil liability under P.D. 772 has been rendered nugatory with the passage of R.A. 8368, both criminal and civil aspects of Criminal Cases Nos. Q-97-70428 and Q-97-70429 in the RTC as well as Criminal Cases Nos. 38-0130 and 38-0131 in the MTC filed against petitioners should be dismissed.

WHEREFORE, finding the petition for review to be with merit, the Decision dated April 30, 1999 of the Court of Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE.  A new judgment is hereby entered modifying the Decision dated September 10, 1997 of the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases No. Q-97-70428 and Q-97-70429 and the Decision dated December 16, 1996 issued by the Metropolitan Trial Court of Quezon City (Branch 38), to the effect that the dismissal of the aforementioned criminal cases likewise include the dismissal of the civil aspects thereof, without prejudice to the filing of civil and/or criminal actions under the prevailing laws.

No costs.

SO ORDERED.