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G.R. No.

195244 June 22, 2015 house and stab her mother with a knife, while he (Carl) peeped through a chair.
Although there was no light at the ground floor, there was light upstairs. After his
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, mother got stabbed, his father chased the appellant. Carl saw blood come out of his
vs. mother’s lower chest. His father then brought her to the hospital. Carl positively
ALVIN ESUGON y AVILA, Accused-Appellant. identified the appellant, a neighbor who often goes to their house, as the one who
stabbed his mother. On cross-examination, he related that the assailant took money
DECISION from his father’s pocket. He likewise admitted that he did not see very well the
perpetra tor because there was no light (TSN, February 24, 2004, pp. 3, 11-23, 28, 30-
32).
BERSAMIN, J.:

Upon being asked by the trial court, Carl stated that although there was no light when
Every child is presumed qualified to be a witness. The party challenging the child's
his mother was stabbed, he was sure of what he saw since there was light at their
competency as a witness has the burden of substantiating his challenge.
second floor, which illumined the ground floor through the stairway (TSN, February
24, 2004, pp. 33-34).
Under review is the decision promulgated on July 23, 2010, 1 whereby the Court of
Appeals (CA) affirmed with modification the conviction of the appellant for the
Insp. Marquez, who autopsied the body, related that the cause of the victim’s death
composite crime of robbery with homicide handed down by the Regional Trial Court
was hemorrhagic shock due to stab wound. The wound was located at the epigastric
(RTC), Branch 211, in Mandaluyong City through its judgment rendered on January
region, measuring 2.8 x 0.5 cm, 4 cm from left of the anterior midline, 13 cm deep,
27, 2006.2
directed posterior and upward, piercing the right ventricle of the hear t, thoracic
aorta and lower lobe of the left lung (TSN, April 21, 2004, pp. 1, 6; Exh. "I," Records,
Antecedents
p. 103).

The information charged the appellant with robbery with homicide, alleging as
Next to testify was Dennis, husband of the victim. He narrated that he and the victim
follows:
were married for nine years before the incident and that they have four children:
Monica, 11 years old; Mary Joy, 9 years old; Carl, 5 years old; and Cherry Ann, 7
That on or about the 22nd day of October 2003, in the City of Mandaluyong, months old. At about 9 p.m. on October 21, 2003, he and his wife were sleeping
Philippines, a place within the jurisdiction of this Honorable Court, the above-named downstairs in their sala, with their baby, while their other children slept upstairs.
accused, with intent to gain, with the use of a bladed weapon, by means of force and Their sala measures 3 by 3 meters. At around 2 a.m., his son Carl woke up crying and
violence, did, then and there, willfully, unlawfully and feloniously take, steal and carry went downstairs to sleep with them. Fifteen to thirty minutes later, he heard
away cash money amounting to ₱13,000.00 belonging to JOSEPHINE CASTRO y someone shout "magnanakaw!" [H]e turned on the light and saw that their door was
BARRERA, to the damage and prejudice of the latter; that by reason or on occasion open. He got their bolo and ran outside. When he did not see anybody, he returned
of said robbery, accused did, then and there willfully, unlawfully and feloniously and heard his wife moaning. He embraced and carried her and saw blood on her back.
attack, assault and stab with the said bladed weapon said JOSEPHINE CASTRO y He shouted for help and his brother-in law helped him bring the victim to the hospital
BARRERA, thereby inflicting upon her physical injuries which directly caused her where she eventually died. He spent ₱23,000.00 for the funeral and ₱44,500.00 for
death. the wake and burial. On cross-examination, he admitted that he has no personal
knowledge as to who stabbed his wife since he did not actually see the perpetrator
CONTRARY TO LAW.3 and that it was his son who saw the appellant (TSN, August 25, 2004, pp. 3 12;
October 6, 2004, pp. 5-6; November 17, 2004, pp. 3-4).
The CA adopted the RTC’s summation of the evidence of the Prosecution, to wit:
Sharon, sister-in-law of the victim, testified that she and her husband were sleeping
Carl or Muymoy, 5-year old son of the victim, testified that on the night of the upstairs when they were roused from their sleep at around 2 a.m. of October 22,
incident, he, his younger sister Cheche, and his mother and father, were sleeping on 2003 by Dennis’ cry for help. She saw that there was blood on the victim’s chest. After
the ground floor of their house. He saw appellant, whom he calls "Nonoy," enter their the victim was brought to the hospital, she noticed that the victim’s children were
trembling in fear and were crying. They got outside and went to the billiard hall in WHEREFORE, premises considered, finding the accused ALVIN ESUGON y AVILA @
front of their house. She took Carl and had him sit on her lap. Then Carl said, "Tita, "NONOY" GUILTY beyond reasonable doubt of the crime of ROBBERY WITH
sya pasok bahay namin" pointing to someone but she did not see who it was since HOMICIDE under Article 293 and punished under Article 294 (1) of the Revised Penal
there were many people passing by. Later, the police asked Carl whether he saw Code, the court hereby sentences him to Reclusion Perpetua and to indemnify the
somebody enter their house and he answered yes and demonstrated how his mother heirs of JOSEPHINE CASTRO y BARRERA as follows:
was stabbed. Carl also said that the person who stabbed his mother was present in
the vicinity. He then pointed to appellant and said " siya po yung pumaso k sa bahay 1) ₱50,000.00 civil indemnity;
namin." As a resident there, appellant often goes to the billiard hall and sometimes
watches the television at the house of the victim (TSN, February 9, 2005, pp. 3-14). 2) ₱57,500.00 as actual damages;

PO1 Fabela also testified that after it was reported to him that there was a stabbing 3) ₱50,000.00 as moral damages.
incident, he went to the hospital then to the crime scene and interviewed the persons
thereat. Later, Carl pinpointed and positively identified the appellant as the one who
SO ORDERED.7
stabbed his mother and robbed them of their money. Appellant was arrested and
brought to the police station (TSN, March 16, 2005, pp. 2, 5-6).
Decision of the CA
PO2 Sazon meanwhile testified that while he was questioning people in the area, Carl
On appeal, the appellant argued that the RTC erred in finding him guilty beyond
pointed to them the suspect who was one of the bystanders. They were asking Carl
reasonable doubt of the composite crime of robbery with homicide based solely on
questions when he suddenly blurted out that it was appellant who entered their
the testimony of Carl, a 5-year old witness whose recollections could only be the
house and stabbed his mother. They invited the appellant to the police station but
product of his imagination.8
the latter denied having committed the crime. On cross-examination, the witness
admitted that their basis in arresting appellant was the information relayed by Carl
(TSN, April 27, 2005, pp. 2, 12-17; June 15, 2005, p. 5).4 On July 23, 2010, however, the CA, giving credence to the child witness, and opining
that his inconsistencies did not discredit his testimony, affirmed the conviction of the
appellant,9 ruling thusly:
In turn, the appellant denied the accusation. According to him, he had frequented
the victim’s billiard hall, which was situated only four houses away from where he
lived, and, on the evening in question, he had been the last to leave the billiard hall WHEREFORE, the appeal is DENIED for lack of merit. The Decision dated January 27,
at 11 o’ clock p.m. and had then gone home. He recalled that he had been roused 2006 of the Regional Trial Court, Branch 211 of Mandaluyong City in Crim. Case No.
from slumber by screams for help around two o’clock a.m., prompting him to ask his MC03-7597, is hereby AFFIRMED with the MODIFICATION in that the award of
mother for the key to the door; that he had then gone outside where he learned of ₱57,500.00 as actual damages should be DELETED and in lieu thereof, temperate
the killing of the victim; that police officers had later on approached him to inquire damages in the amount of ₱25,000.00 should be AWARDED the heirs of Josephine
what he knew about the killing because they told him that Carl, the young son of the Castro y Barrera.
victim, had pointed to him as the perpetrator, making him the primary suspect; that
he had replied that he had had nothing to do with the crime; and that he had assured SO ORDERED.10
the police officers that he had never been involved in any wrongdoing in his years of
living in the neighborhood. Issues

The appellant’s mother corroborated his version.5 In this appeal, the appellant posits that the adverse testimony of the 5-year old Carl,
being filled with inconsistencies, was not credible, but doubtful; that unlike him, his
Judgment of the RTC sisters, who were then at the second floor of the house, were not roused from sleep;
that contrary to Carl’s recollection, the place was not even dark when the stabbing
As mentioned, the RTC pronounced the appellant guilty of the crime charged under attack on the victim occurred because his father said that he had turned the light on
its judgment rendered on January 27, 2006,6 disposing:
upon hearing somebody shouting " Magnanakaw!;" and that his father had then Section 21. Disqualification by reason of mental incapacity or immaturity. - The
gotten his bolo, and gone outside the house. 11 following persons cannot be witnesses:

Moreover, the appellant maintains that the Prosecution did not prove that violence (a) Those whose mental condition, at the time of their production for
or intimidation was employed in the course of the robbery. He argues that he could examination, is such that they are incapable of intelligently making known
not be held liable for robbery by using force upon things considering that the culprit their perception to others;
had neither broken any wall, roof, floor, door or window to gain entry in the house
nor entered the house through an opening not intended for entrance. If at all, he (b) Children whose mental maturity is such as to render them incapable of
could be liable only for the separate crimes of theft and homicide, not of the perceiving the facts respecting which they are examined and of relating
composite crime of robbery with homicide.12 them truthfully. (19a)

The Office of the Solicitor General (OSG) counters that the evidence showed that the As the rules show, anyone who is sensible and aware of a relevant event or incident,
appellant’s principal intent had been to rob the victim’s house, with the homicide and can communicate such awareness, experience, or observation to others can be
being perpetrated as a mere incident of the robbery; and that Carl positively a witness. Age, religion, ethnicity, gender, educational attainment, or social stat us
identified the appellant as the person who had stabbed the victim, his identification are not necessary to qualify a person to be a witness, so long as he does not possess
bearing "all the earmarks of credibility especially when he has no motive for lying any of the disqualifications as listed the rules. The generosity with which the Rules of
about the identity of the accused."13 Court allows people to testify is apparent, for religious beliefs, interest in the
outcome of a case, and conviction of a crime unless otherwise provided by law are
Ruling of the Court not grounds for disqualification.14

The appeal is bereft of merit. That the witness is a child cannot be the sole reason for disqualification. The
dismissiveness with which the testimonies of child witnesses were treated in the past
The most important task of the St ate in the successful prosecution of the accused is has long been erased. Under the Rule on Examination of a Child Witness (A.M. No.
his credible and competent identification as the perpetrator of the crime. Hence, this 004-07-SC 15 December 2000), every child is now presumed qualified to be a witness.
appeal turns on whether or not the identification of the appellant as the perpetrator To rebut this presumption, the burden of proof lies on the party challenging the
of the robbery with homicide was credible and competent considering that the child’s competency. Only when substantial doubt exists regarding the ability of the
identifying witness was Carl, a 5-year old lad, whose sole testimony positively pointed child to perceive ,remember, communicate, distinguish truth from falsehood, or
to and incriminated the appellant as the person who had entered their home, robbed appreciate the duty to tell the truth in court will the court, motu proprio or on motion
the family, and killed his mother. of a party, conduct a competency examination of a child.15

The qualification of a person to testify rests on the ability to relate to others the acts The assessment of the credibility of witnesses is within the province of the trial
and events witnessed. Towards that end, Rule 130 of the Rules of Court makes clear court.16 All questions bearing on the credibility of witnesses are best addressed by
who may and may not be witnesses in judicial proceedings, to wit: the trial court by virtue of its unique position to observe the crucial and often
incommunicable evidence of the witnesses’ deportment while testifying, something
Section 20. Witnesses; their qualifications. - Except as provided in the next which is denied to the appellate court because of the nature and function of its office.
succeeding section, all persons who can perceive, and perceiving, can make known The trial judge has the unique advantage of actually examining the real and
their perception to others, may be witnesses. testimonial evidence, particularly the demeanor of the witnesses. Hence, the trial
judge’s assessment of the witnesses’ testimonies and findings of fact are accorded
great respect on appeal. In the absence of any substantial reason to justify the
Religious or political belief, interest in the outcome of the case, or conviction of a
reversal of the trial court’s assessment and conclusion, like when no significant facts
crime unless otherwis e provided by law, shall not be a ground for disqualification.
and circumstances are shown to have been overlooked or disregarded, the reviewing
(l8 a)
court is generally bound by the former’s findings. The rule is even more stringently
applied if the appellate court has concurred with the trial court. 17
The appellant did not object to Carl’s competency as a witness. He did not attempt Carl positively identified the appellant as the culprit during the investigation and
to adduce evidence to challenge such competency by showing that the child was during the trial. Worthy to note is that the child could not have been mistaken about
incapable of perceiving events and of communicating his perceptions, or that he did his identification of him in view of his obvious familiarity with the appellant as a daily
not possess the basic qualifications of a competent witness. After the Prosecution presence in the billiard room maintained by the child’s family. Verily, the evidence
terminated its direct examination of Carl, the appellant extensively tested his direct on record overwhelmingly showed that the appellant, and no other, had robbed and
testimony on cross-examination. All that the Defense did was to attempt to discredit stabbed the victim.
the testimony of Carl, but not for once did the Defense challenge his capacity to
distinguish right from wrong, or to perceive, or to communicate his perception to the The appellant contends that robbery was not proved beyond reasonable doubt; that
trial court. Consequently, the trial judge favorably determined the competency of to sustain a conviction for robbery with homicide, the robbery itself must be proven
Carl to testify against the appellant. as conclusively as the other essential element of the crime; and that it was not
established that the taking of personal property was achieved by means of violence
The appellant points to inconsistencies supposedly incurred by Carl. That is against or intimidation of any person or by using force upon things.
apparently not disputed. However, it seems clear that whatever inconsistencies the
child incurred in his testimony did not concern the principal occurrence or the The contention lacks persuasion.
elements of the composite crime charged but related only to minor and peripheral
matters. As such, their effect on his testimony was negligible, if not nil, because the To sustain a conviction for robbery with homicide, the Prosecution must prove the
inconsistencies did not negate the positive identification of the appellant as the concurrence of the following elements, namely: (1) the taking of personal property
perpetrator. Also, that Carl did not shout to seek help upon witnessing how the belonging to another; (2) with intent to gain; (3) with the use of violence or
appellant had stabbed his mother to death did not destroy his credibility. For sure, intimidation against a person; and (4) the crime of homicide, as used in the generic
he could not be expected to act and to react to what happened like an adult. Although sense, was committed on the occasion or by reason of the robbery. 22 A conviction
children have different levels of intelligence and different degrees of perception, the requires certitude that the robbery is the main objective of the malefactor, and the
determination of their capacity to perceive and of their ability to communicate their killing is merely incidental to the robbery.23
perception to the courts still pertained to the trial court, because it concerned a
factual issue and should not be disturbed on appeal in the absence of a strong
The CA has indicated that the appellant carried a long-bladed weapon. The fact that
showing of mistake or misappreciation on the part of the trial court. 18
the appellant was armed with the long-bladed weapon, which was undoubtedly a
deadly weapon, competently proved the presence of violence or intimidation against
It is true that an appeal in a criminal case like this one opens the record of the trial persons that qualified the offense as robbery instead of theft. For sure, too, the
bare and open. Even so, the finding of facts by the trial court are still entitled to great patent intent of the appellant was originally to commit robbery, with the homicide
respect especially when affirmed on appeal by the CA. 19This great respect for such being committed only in the course or on the occasion of the perpetration of the
findings rests mainly on the trial court’s direct and personal access to the witnesses robbery. As the records show, Dennis was awakened by someone shouting "
while they testify in its presence, giving them the unique opportunity to observe their Magnanakaw!" The shout was most probably made by the victim, whom the
manner and decorum during intensive grilling by the counsel for the accused, and to appellant then stabbed in order to facilitate his escape. Considering that the original
see if the witnesses were fidgeting and prevaricating, or sincere and trustworthy. criminal design to rob had been consummated with the taking of the money
With both the RTC and the CA sharing the conviction on Carl’s credibility, his capacity amounting to ₱13,000.00, the killing of the victim under the circumstances rendered
to perceive and his ability to communicate his perception, we cannot depart from the appellant guilty beyond reasonable doubt of robbery with homicide.
their common conclusion. Moreover, according credence to Carl’s testimony despite
his tender age would not be unprecedented. In People v. Mendiola, 20the Court
Robbery with homicide is a composite crime, also known as a special complex crime.
considered a 6-y ear-old victim competent, and regarded her testimony against the
It is composed of two or more crimes but is treated by law as a single indivisible and
accused credible. In Dulla v. Court of Appeals,21 the testimony of the three-year-old
unique offense for being the product of one criminal impulse. It is a specific crime
victim was deemed acceptable. As such, Carl’s testimony was entitled to full
with a specific penalty provided by law, and is to be distinguished from a compound
probative weight.
or complex crime under Article 48 of the Revised Penal Code.24 A composite crime is
truly distinct and different from a complex or compound crime. In a composite crime,
the composition of the offenses is fixed by law, but in a complex or compound crime,
the combination of the offenses is not specified but generalized, that is, grave and/or In addition to the damages awarded by the CA, the appellant should be liable to pay
less grave, or one offense being the necessary means to commit the other. In a the heirs of the victim interest at the legal rate of 6% per annum on all the monetary
composite crime, the penalty for the specified combination of crimes is specific, but awards for damages from the date of the finality of this decision until the awards are
in a complex or compound crime the penalty is that corresponding to the most fully paid.
serious offense, to be imposed in the maximum period. A light felony that
accompanies the commission of a complex or compound crime may be made the WHEREFORE, the Court AFFIRMS the decision promulgated on July 23, 2010 subject
subject of a separate information, but a light felony that accompanies a composite to the MODIFICATIONS that then accused-appellant ALVIN ESUGON y AVILA shall pay
crime is absorbed. to the heirs of the late Josephine Castro y Barrera civil indemnity of ₱75,000.00;
moral damages of ₱75,000.00; exemplary damages of ₱30,000.00; temperate
The aggravating circumstances of dwelling and nighttime are not appreciated to raise damages of ₱25,000.00; and interest at the legal rate of 6% per annum on all
the penalty to be imposed because the information did not specifically allege them. monetary awards for damages reckoned from the date of the finality of this decision
But they should be appreciated in order to justify the grant of exemplary damages to until the awards are fully paid, plus the costs of suit.
the heirs of the victim in the amount of ₱30,000.00 in accordance with relevant
jurisprudence.25 Under Article 2230 of the Civil Code, exemplary damages may be The accused-appellant is ORDERED to pay the costs of suit.
granted if at least one aggravating circumstance attended the commission of the
crime. The aggravating circumstance for this purpose need not be specifically alleged SO ORDERED.
in the information, and can be either a qualifying or attendant circumstance. As
expounded in People v. Catubig:26

The term "aggravating circumstances" used by the Civil Code, the law not having
specified otherwise, is to be understood in its broad or generic sense.1âwphi1 The
commission of an offense has a two-pronged effect, one on the public as it breaches G. R. No. 160188 June 21, 2007
the social order and the other upon the private victim as it causes personal sufferings,
each of which is addressed by, respectively, the prescription of heavier punishment ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
for the accused and by an award of additional damages to the victim. The increase of vs.
the penalty or a shift to a graver felony underscores the exacerbation of the offense PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
by the attendance of aggravating circumstances, whether ordinary or qualifying, in
its commission. Unlike the criminal liability which is basically a State concern, the
DECISION
award of damages, however, is likewise, if not primarily, intended for the offended
party who suffers thereby. It would make little sense for an award of exemplary
damages to be due the private offended party when the aggravating circumstance is TINGA, J.:
ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying
nature of an aggravating circumstance is a distinction that should only be of This case aims for prime space in the firmament of our criminal law jurisprudence.
consequence to the criminal, rather than to the civil, liability of the offender. In fine, Petitioner effectively concedes having performed the felonious acts imputed against
relative to the civil aspect of the case, an aggravating circumstance, whether ordinary him, but instead insists that as a result, he should be adjudged guilty of frustrated
or qualifying, should entitle the offended party to an award of exemplary damages theft only, not the felony in its consummated stage of which he was convicted. The
within the unbridled meaning of Article 2230 of the Civil Code.27 proposition rests on a common theory expounded in two well-known
decisions1 rendered decades ago by the Court of Appeals, upholding the existence of
In line with current jurisprudence,28 we increase the civil indemnity to 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.
₱75,000.00, and the moral damages to ₱75,000.00.
As far as can be told,2 the last time this Court extensively considered whether an After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
accused was guilty of frustrated or consummated theft was in 1918, in People v. claimed having been innocent bystanders within the vicinity of the Super Sale Club
Adiao.3 A more cursory 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
treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, alleged that on the afternoon of the incident, he was at the Super Sale Club to
in Empelis v. IAC.5 This petition now gives occasion for us to finally and fully measure withdraw from his ATM account, accompanied by his neighbor, Leoncio
if or how frustrated theft is susceptible to commission under the Revised Penal Code. 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
I. gunshot fired by Lago, leading them to head out of the building to check what was

The basic facts are no longer disputed before us. The case stems from an transpiring. As they were outside, they were suddenly "grabbed" by a security guard,
Information6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon thus commencing their detention.12 Meanwhile, petitioner testified during trial that
(Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner he and his cousin, a Gregorio Valenzuela,13 had been at the parking lot, walking
and Calderon were sighted outside the Super Sale Club, a supermarket within the beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard they saw the security guard Lago fire a shot. The gunshot caused him and the other
who was then manning his post at the open parking area of the supermarket. Lago people at the scene to start running, at which point he was apprehended by Lago and
saw petitioner, who was wearing an identification card with the mark "Receiving brought to the security office. Petitioner claimed he was detained at the security
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well- office until around 9:00 p.m., at which time he and the others were brought to the
known "Tide" brand. Petitioner unloaded these cases in an open parking space, Baler Police Station. At the station, petitioner denied having stolen the cartons of
where Calderon was waiting. Petitioner then returned inside the supermarket, and detergent, but he was detained overnight, and eventually brought to the
after five (5) minutes, emerged with more cartons of Tide Ultramatic and again prosecutor’s office where he was charged with theft.14 During petitioner’s cross-
unloaded these boxes to the same area in the open parking space. 7 examination, he admitted that he had been employed as a "bundler" of GMS
Marketing, "assigned at the supermarket" though not at SM.15
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 In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of
the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking consummated theft. They were sentenced to an indeterminate prison term of two
area. When Lago asked petitioner for a receipt of the merchandise, petitioner and (2) years of prision correccional as minimum to seven (7) years of prision mayor as
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow maximum.17 The RTC found credible the testimonies of the prosecution witnesses
security guards of the incident. Petitioner and Calderon were apprehended at the and established the convictions on the positive identification of the accused as
scene, and the stolen merchandise recovered.8 The filched items seized from the duo perpetrators of the crime.
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 ₱12,090.00. 9 Both accused filed their respective Notices of Appeal, 18 but only petitioner filed a
brief19 with the Court of Appeals, causing the appellate court to deem Calderon’s
Petitioner and Calderon were first brought to the SM security office before they were appeal as abandoned and consequently dismissed. Before the Court of Appeals,
transferred on the same day to the Baler Station II of the Philippine National Police, petitioner argued that he should only be convicted of frustrated theft since at the
Quezon City, for investigation. It appears from the police investigation records that time he was apprehended, he was never placed in a position to freely dispose of the
apart from petitioner and Calderon, four (4) other persons were apprehended by the articles stolen.20 However, in its Decision dated 19 June 2003,21 the Court of Appeals
security guards at the scene and delivered to police custody at the Baler PNP Station rejected this contention and affirmed petitioner’s conviction. 22 Hence the present
in connection with the incident. However, after the matter was referred to the Office Petition for Review,23 which expressly seeks that petitioner’s conviction "be modified
of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft to only of Frustrated Theft."24
by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day
after the incident.10
Even in his appeal before the Court of Appeals, petitioner effectively conceded both To delve into any extended analysis of Diño and Flores, as well as the specific issues
his felonious intent and his actual participation in the theft of several cases of relative to "frustrated theft," it is necessary to first refer to the basic rules on the
detergent with a total value of ₱12,090.00 of which he was charged.25 As such, there three stages of crimes under our Revised Penal Code.30
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 Article 6 defines those three stages, namely the consummated, frustrated and
to consider is whether under the given facts, the theft should be deemed as attempted felonies. A felony is consummated "when all the elements necessary for
consummated or merely frustrated. 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
II. 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
In arguing that he should only be convicted of frustrated theft, petitioner cites26 two commission of a felony directly by overt acts, and does not perform all the acts of
decisions rendered many years ago by the Court of Appeals: People v. Diño27 and execution which should produce the felony by reason of some cause or accident
People v. Flores.28 Both decisions elicit the interest of this Court, as they modified other than his own spontaneous desistance."
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 Each felony under the Revised Penal Code has a "subjective phase," or that portion
in his appeal to the Court of Appeals, yet the appellate court did not expressly of the acts constituting the crime included between the act which begins the
consider the import of the rulings when it affirmed the conviction. 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,
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and the subjective phase ends and the objective phase begins. 32 It has been held that if
Flores rulings since they have not yet been expressly adopted as precedents by this the offender never passes the subjective phase of the offense, the crime is merely
Court. For whatever reasons, 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
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, Diño and Flores have attained a level Truly, an easy distinction lies between consummated and frustrated felonies on one
of renown reached by very few other appellate court rulings. They are hand, and attempted felonies on the other. So long as the offender fails to complete
comprehensively discussed in the most popular of our criminal law all the acts of execution despite commencing the commission of a felony, the crime
annotations,29 and studied in criminal law classes as textbook examples of frustrated is undoubtedly in the attempted stage. Since the specific acts of execution that define
crimes or even as definitive of frustrated theft. 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
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios the acts actually performed by the accused as against the acts that constitute the
that populate criminal law exams more than they actually occur in real life. Indeed, if felony under the Revised Penal Code.
we finally say that Diño and Flores are doctrinal, such conclusion could profoundly
influence a multitude of routine theft prosecutions, including commonplace In contrast, the determination of whether a crime is frustrated or consummated
shoplifting. Any scenario that involves the thief having to exit with the stolen necessitates an initial concession that all of the acts of execution have been
property through a supervised egress, such as a supermarket checkout counter or a performed by the offender. The critical distinction instead is whether the felony itself
parking area pay booth, may easily call for the application of Diño and Flores. The fact was actually produced by the acts of execution. The determination of whether the
that lower courts have not hesitated to lay down convictions for frustrated theft felony was "produced" after all the acts of execution had been performed hinges on
further validates that Diño and Flores and the theories offered therein on frustrated the particular statutory definition of the felony. It is the statutory definition that
theft have borne some weight in our jurisprudential system. The time is thus ripe for generally furnishes the elements of each crime under the Revised Penal Code, while
us to examine whether those theories are correct and should continue to influence the elements in turn unravel the particular requisite acts of execution and
prosecutors and judges in the future. accompanying criminal intent.

III.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden
important characteristic of a crime, that "ordinarily, evil intent must unite with an or which belongs to another and without the consent of its owner, shall hunt or fish
unlawful act for there to be a crime," and accordingly, there can be no crime when upon the same or shall gather cereals, or other forest or farm products.
the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala
in se,36mens rea has been defined before as "a guilty mind, a guilty or wrongful Article 308 provides for a general definition of theft, and three alternative and highly
purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the idiosyncratic means by which theft may be committed.41 In the present discussion,
statutory definition of our mala in se crimes must be able to supply what the mens we need to concern ourselves only with the general definition since it was under it
rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that "a that the prosecution of the accused was undertaken and sustained. On the face of
criminal law that contains no mens rea requirement infringes on constitutionally the definition, there is only one operative act of execution by the actor involved in
protected rights."39 The criminal statute must also provide for the overt acts that theft ─ the taking of personal property of another. It is also clear from the provision
constitute the crime. For a crime to exist in our legal law, it is not enough that mens that in order that such taking may be qualified as theft, there must further be present
rea be shown; there must also be an actus reus.40 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
It is from the actus reus and the mens rea, as they find expression in the criminal consent of the owner of the property.
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 Indeed, we have long recognized the following elements of theft as provided for in
expressly provide when the felony is produced. Without such provision, disputes Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal
would inevitably ensue on the elemental question whether or not a crime was property; (2) that said property belongs to another; (3) that the taking be done with
committed, thereby presaging the undesirable and legally dubious set-up under intent to gain; (4) that the taking be done without the consent of the owner; and (5)
which the judiciary is assigned the legislative role of defining crimes. Fortunately, our that the taking be accomplished without the use of violence against or intimidation
Revised Penal Code does not suffer from such infirmity. From the statutory definition of persons or force upon things.42
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 In his commentaries, Judge Guevarra traces the history of the definition of theft,
or homicide expressly uses the phrase "shall kill another," thus making it clear that which under early Roman law as defined by Gaius, was so broad enough as to
the felony is produced by the death of the victim, and conversely, it is not produced encompass "any kind of physical handling of property belonging to another against
if the victim survives. 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
We next turn to the statutory definition of theft. Under Article 308 of the Revised Justinian, the idea had taken hold that more than mere physical handling, there must
Penal Code, its elements are spelled out as follows: 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
Art. 308. Who are liable for theft.— Theft is committed by any person who, with possessinisve."45 This requirement of animo lucrandi, or intent to gain, was
intent to gain but without violence against or intimidation of persons nor force upon maintained in both the Spanish and Filipino penal laws, even as it has since been
things, shall take personal property of another without the latter’s consent. abandoned in Great Britain.46

Theft is likewise committed by: In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful
taking," to characterize theft. Justice Regalado notes that the concept of
1. Any person who, having found lost property, shall fail to deliver the same to the apoderamiento once had a controversial interpretation and application. Spanish law
local authorities or to its owner; 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
2. Any person who, after having maliciously damaged the property of another, shall object in order to constitute apoderamiento; and to appropriate means to deprive
remove or make use of the fruits or object of the damage caused by him; and 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
taking48 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 instead that the accused was guilty of consummated theft, finding that "all the
temporary possession by the offender or disturbance of the proprietary rights of the elements of the completed crime of theft are present."55 In support of its conclusion
owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, that the theft was consummated, the Court cited three (3) decisions of the Supreme
the Court adopted the latter thought that there was no need of an intent to Court of Spain, the discussion of which we replicate below:
permanently deprive the owner of his property to constitute an unlawful taking. 51
The defendant was charged with the theft of some fruit from the land of another. As
So long as the "descriptive" circumstances that qualify the taking are present, he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not
including animo lucrandi and apoderamiento, the completion of the operative act appear that he was at that moment caught by the policeman but sometime later. The
that is the taking of personal property of another establishes, at least, that the court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that
transgression went beyond the attempted stage. As applied to the present case, the of consummated theft instead of frustrated theft inasmuch as nothing appears in the
moment petitioner obtained physical possession of the cases of detergent and record showing that the policemen who saw the accused take the fruit from the
loaded them in the pushcart, such seizure motivated by intent to gain, completed adjoining land arrested him in the act and thus prevented him from taking full
without need to inflict violence or intimidation against persons nor force upon things, possession of the thing stolen and even its utilization by him for an interval of time."
and accomplished without the consent of the SM Super Sales Club, petitioner (Decision of the Supreme Court of Spain, October 14, 1898.)
forfeited the extenuating benefit a conviction for only attempted theft would have
afforded him. 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
On the critical question of whether it was consummated or frustrated theft, we are theft, did not do anything to prevent it. Subsequently, however, while the defendant
obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. was still inside the church, the offended party got back the money from the
Following that provision, the theft would have been frustrated only, once the acts defendant. The court said that the defendant had performed all the acts of execution
committed by petitioner, if ordinarily sufficient to produce theft as a consequence, and considered the theft as consummated. (Decision of the Supreme Court of Spain,
"do not produce [such theft] by reason of causes independent of the will of the December 1, 1897.)
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 defendant penetrated into a room of a certain house and by means of a key
the perpetrator. The second factor ultimately depends on the evidence at hand in opened up a case, and from the case took a small box, which was also opened with a
each particular case. The first, however, relies primarily on a doctrinal definition key, from which in turn he took a purse containing 461 reales and 20 centimos, and
attaching to the individual felonies in the Revised Penal Code52 as to when a then he placed the money over the cover of the case; just at this moment he was
particular felony is "not produced," despite the commission of all the acts of caught by two guards who were stationed in another room near-by. The court
execution. 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
So, in order to ascertain whether the theft is consummated or frustrated, it is where it had been, and having taken it with his hands with intent to appropriate the
necessary to inquire as to how exactly is the felony of theft "produced." Parsing same, he executed all the acts necessary to constitute the crime which was thereby
through the statutory definition of theft under Article 308, there is one apparent produced; only the act of making use of the thing having been frustrated, which,
answer provided in the language of the law — that theft is already "produced" upon however, does not go to make the elements of the consummated crime." (Decision
the "tak[ing of] personal property of another without the latter’s consent." of the Supreme Court of Spain, June 13, 1882.) 56

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited
charged with theft after he abstracted a leather belt from the baggage of a foreign therein, that the criminal actors in all these cases had been able to obtain full
national and secreted the item in his desk at the Custom House. At no time was the possession of the personal property prior to their apprehension. The interval
accused able to "get the merchandise out of the Custom House," and it appears that between the commission of the acts of theft and the apprehension of the thieves did
he "was under observation during the entire transaction." 54 Based apparently on vary, from "sometime later" in the 1898 decision; to the very moment the thief had
those two circumstances, the trial court had found him guilty, instead, of frustrated just extracted the money in a purse which had been stored as it was in the 1882
theft. The Court reversed, saying that neither circumstance was decisive, and holding 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, In doing so, the appellate court pointed out that the evident intent of the accused
such intervals proved of no consequence in those cases, as it was ruled that the thefts was to let the boxes of rifles "pass through the checkpoint, perhaps in the belief that
in each of those cases was consummated by the actual possession of the property as the truck had already unloaded its cargo inside the depot, it would be allowed to
belonging to another. 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
In 1929, the Court was again confronted by a claim that an accused was guilty only of the Court of Appeals pronounced that "the fact determinative of consummation is
frustrated rather than consummated theft. The case is People v. Sobrevilla, 57 where the ability of the thief to dispose freely of the articles stolen, even if it were more or
the accused, while in the midst of a crowd in a public market, was already able to less momentary."61 Support for this proposition was drawn from a decision of the
abstract a pocketbook from the trousers of the victim when the latter, perceiving the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as
theft, "caught hold of the [accused]’s shirt-front, at the same time shouting for a follows:
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 Considerando que para que el apoderamiento de la cosa sustraida sea determinate
that only frustrated theft was established, the Court simply said, without further de la consumacion del delito de hurto es preciso que so haga en circunstancias tales
comment or elaboration: 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
We believe that such a contention is groundless. The [accused] succeeded in taking puede decirse en realidad que se haya producido en toda su extension, sin
the pocket-book, and that determines the crime of theft. If the pocket-book was materializar demasiado el acto de tomar la cosa ajena.62
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 Integrating these considerations, the Court of Appeals then concluded:

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases This court is of the opinion that in the case at bar, in order to make the booty subject
cited in the latter, in that the fact that the offender was able to succeed in obtaining to the control and disposal of the culprits, the articles stolen must first be passed
physical possession of the stolen item, no matter how momentary, was able to through the M.P. check point, but since the offense was opportunely discovered and
consummate the theft. 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
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict said to have been fully consummated, as it was frustrated by the timely intervention
the position of petitioner in this case. Yet to simply affirm without further comment of the guard. The offense committed, therefore, is that of frustrated theft. 63
would be disingenuous, as there is another school of thought on when theft is
consummated, as reflected in the Diño and Flores decisions. 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
Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 consummated or frustrated. This theory was applied again by the Court of Appeals
years before Flores. The accused therein, a driver employed by the United States some 15 years later, in Flores, a case which according to the division of the court that
Army, had driven his truck into the port area of the South Harbor, to unload a decided it, bore "no substantial variance between the circumstances [herein] and in
truckload of materials to waiting U.S. Army personnel. After he had finished [Diño]."64 Such conclusion is borne out by the facts in Flores. The accused therein, a
unloading, accused drove away his truck from the Port, but as he was approaching a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for
checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck one empty sea van to the truck driver who had loaded the purportedly empty sea
and found therein three boxes of army rifles. The accused later contended that he van onto his truck at the terminal of the stevedoring company. The truck driver
had been stopped by four men who had loaded the boxes with the agreement that proceeded to show the delivery receipt to the guard on duty at the gate of the
they were to meet him and retrieve the rifles after he had passed the checkpoint. terminal. However, the guards insisted on inspecting the van, and discovered that
The trial court convicted accused of consummated theft, but the Court of Appeals the "empty" sea van had actually contained other merchandise as well. 65 The accused
modified the conviction, holding instead that only frustrated theft had been was prosecuted for theft qualified by abuse of confidence, and found himself
committed. 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 occupation of the thing whereby the thief places it under his control and in such a
of the accused that "literally frustrated the theft." However, the Court of Appeals, situation that he could dispose of it at once. This ruling seems to have been based on
explicitly relying on Diño, did find that the accused was guilty only of frustrated, and Viada’s opinion that in order the theft may be consummated, "es preciso que se haga
not consummated, theft. en circumstancias x x x [70 ]"71

As noted earlier, the appellate court admitted it found "no substantial variance" In the same commentaries, Chief Justice Aquino, concluding from Adiao and other
between Diño and Flores then before it. The prosecution in Flores had sought to cases, also states that "[i]n theft or robbery the crime is consummated after the
distinguish that case from Diño, citing a "traditional ruling" which unfortunately was accused had material possession of the thing with intent to appropriate the same,
not identified in the decision itself. However, the Court of Appeals pointed out that although his act of making use of the thing was frustrated." 72
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 There are at least two other Court of Appeals rulings that are at seeming variance
appellate court noted that "[o]bviously, while the truck and the van were still within with the Diño and Flores rulings. People v. Batoon73 involved an accused who filled a
the compound, the petitioner could not have disposed of the goods ‘at once’." At the container with gasoline from a petrol pump within view of a police detective, who
same time, the Court of Appeals conceded that "[t]his is entirely different from the followed the accused onto a passenger truck where the arrest was made. While the
case where a much less bulk and more common thing as money was the object of the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals
crime, where freedom to dispose of or make use of it is palpably less held that the accused was guilty of consummated qualified theft, finding that "[t]he
restricted,"67 though no further qualification was offered what the effect would have facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual
been had that alternative circumstance been present instead. taking with intent to gain is enough to consummate the crime of theft." 74

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a
as to whether the crime of theft was produced is the ability of the actor "to freely supply depot and loaded them onto a truck. However, as the truck passed through
dispose of the articles stolen, even if it were only momentary." Such conclusion was the checkpoint, the stolen items were discovered by the Military Police running the
drawn from an 1888 decision of the Supreme Court of Spain which had pronounced checkpoint. Even though those facts clearly admit to similarity with those in Diño, the
that in determining whether theft had been consummated, "es preciso que so haga Court of Appeals held that the accused were guilty of consummated theft, as the
en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o accused "were able to take or get hold of the hospital linen and that the only thing
menos momentaneamente." The qualifier "siquiera sea mas o menos that was frustrated, which does not constitute any element of theft, is the use or
momentaneamente" proves another important consideration, as it implies that if the benefit that the thieves expected from the commission of the offense."76
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 pointing out the distinction between Diño and Espiritu, Reyes wryly observes that
in either Diño or Flores, as the stolen items in both cases were retrieved from the "[w]hen the meaning of an element of a felony is controversial, there is bound to
actor before they could be physically extracted from the guarded compounds from arise different rulings as to the stage of execution of that felony." 77 Indeed, we can
which the items were filched. However, as implied in Flores, the character of the item discern from this survey of jurisprudence that the state of the law insofar as
stolen could lead to a different conclusion as to whether there could have been "free frustrated theft is concerned is muddled. It fact, given the disputed foundational
disposition," as in the case where the chattel involved was of "much less bulk and basis of the concept of frustrated theft itself, the question can even be asked whether
more common x x x, [such] as money x x x."68 there is really such a crime in the first place.

In his commentaries, Chief Justice Aquino makes the following pointed observation IV.
on the import of the Diño ruling:
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and
There is a ruling of the Court of Appeals that theft is consummated when the thief is not consummated, theft. As we undertake this inquiry, we have to reckon with the
able to freely dispose of the stolen articles even if it were more or less momentary. import of this Court’s 1984 decision in Empelis v. IAC.78
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
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons it is the product of the considered evaluation of the relevant legal or jurisprudential
in the premises of his plantation, in the act of gathering and tying some coconuts. thought. Instead, the passage is offered as if it were sourced from an indubitable legal
The accused were surprised by the owner within the plantation as they were carrying premise so settled it required no further explication.
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 Notably, Empelis has not since been reaffirmed by the Court, or even cited as
the incident to the police. After trial, the accused were convicted of qualified theft, authority on theft. Indeed, we cannot see how Empelis can contribute to our present
and the issue they raised on appeal was that they were guilty only of simple theft. debate, except for the bare fact that it proves that the Court had once deliberately
The Court affirmed that the theft was qualified, following Article 310 of the Revised found an accused guilty of frustrated theft. Even if Empelis were considered as a
Penal Code,79 but further held that the accused were guilty only of frustrated precedent for frustrated theft, its doctrinal value is extremely compromised by the
qualified theft. erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
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, Thus, Empelis does not compel us that it is an insurmountable given that frustrated
though, is that the disposition of that issue was contained in only two sentences, theft is viable in this jurisdiction. Considering the flawed reasoning behind its
which we reproduce in full: 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
However, the crime committed is only frustrated qualified theft because petitioners theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.
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 V.
plantation due to the timely arrival of the owner.80
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
No legal reference or citation was offered for this averment, whether Diño, Flores or España was then in place. The definition of the crime of theft, as provided then, read
the Spanish authorities who may have bolstered the conclusion. There are indeed as follows:
evident problems with this formulation in Empelis.
Son reos de hurto:
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 1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni
consequence."81 However, per Article 6 of the Revised Penal Code, the crime is fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.
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
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la
of execution, the crime is attempted, provided that the non-performance was by
apropriaren co intención de lucro.
reason of some cause or accident other than spontaneous desistance. Empelis
concludes that the crime was
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,
frustrated because not all of the acts of execution were performed due to the timely
núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.
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
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme
that the acts were not performed because of the timely arrival of the owner, and not
Court decisions were handed down. However, the said code would be revised again
because of spontaneous desistance by the offenders.
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,
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
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82
provided in Article 6 of the Revised Penal Code, such passage bears no reflection that
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la quede por tiempo más o menos duradero bajo su poder. El hecho de que éste pueda
libre disposicion" of the property is not an element or a statutory characteristic of aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
the crime. It does appear that the principle originated and perhaps was fostered in consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada.
the realm of Spanish jurisprudence. 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
The oft-cited Salvador Viada adopted a question-answer form in his 1926 nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos
commentaries on the 1870 Codigo Penal de España. Therein, he raised at least three delitos consumados.87 (Emphasis supplied)
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 Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content
question whether frustrated or consummated theft was committed "[e]l que en el with replicating the Spanish Supreme Court decisions on the matter, Cuello Calón
momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al actually set forth his own thought that questioned whether theft could truly be
suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la
1888 decision of the Supreme Court of Spain, that decision’s factual predicate consumación del hurto no lo consume efectivamente." Otherwise put, it would be
occasioning the statement was apparently very different from Diño, for it appears difficult to foresee how the execution of all the acts necessary for the completion of
that the 1888 decision involved an accused who was surprised by the employees of the crime would not produce the effect of theft.
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 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
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly in Diño and Flores. A final ruling by the Court that there is no crime of frustrated theft
recites decisions of the Supreme Court of Spain that have held to that effect.85 A few in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly
decades later, the esteemed Eugenio Cuello Calón pointed out the inconsistent heretical in light of Cuello Calón’s position.
application by the Spanish Supreme Court with respect to frustrated theft.
Accordingly, it would not be intellectually disingenuous for the Court to look at the
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando question from a fresh perspective, as we are not bound by the opinions of the
llevaban los sacos de harino del carro que los conducia a otro que tenían preparado, respected Spanish commentators, conflicting as they are, to accept that theft is
22 febrero 1913; cuando el resultado no tuvo efecto por la intervención de la policia capable of commission in its frustrated stage. Further, if we ask the question whether
situada en el local donde se realizó la sustracción que impidió pudieran los reos there is a mandate of statute or precedent that must compel us to adopt the Diño
disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si existe and Flores doctrines, the answer has to be in the negative. If we did so, it would arise
apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay not out of obeisance to an inexorably higher command, but from the exercise of the
frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto function of statutory interpretation that comes as part and parcel of judicial review,
seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado and a function that allows breathing room for a variety of theorems in competition
la existencia de frustración cuando, perseguido el culpable o sorprendido en el until one is ultimately adopted by this Court.
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 V.
expuesto, son hurtos consumados.86
The foremost predicate that guides us as we explore the matter is that it lies in the
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually province of the legislature, through statute, to define what constitutes a particular
possible: 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.
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando Judicial interpretation of penal laws should be aligned with what was the evident
la cosa queda de hecho a la disposición del agente. Con este criterio coincide la legislative intent, as expressed primarily in the language of the law as it defines the
doctrina sentada últimamente porla jurisprudencia española que generalmente crime. It is Congress, not the courts, which is to define a crime, and ordain its
considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta 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 completed, the "taking not having been accomplished." Perhaps this point could
that does not hew to the statutory language. Due respect for the prerogative of serve as fertile ground for future discussion, but our concern now is whether there is
Congress in defining crimes/felonies constrains the Court to refrain from a broad indeed a crime of frustrated theft, and such consideration proves ultimately
interpretation of penal laws where a "narrow interpretation" is appropriate. "The immaterial to that question. Moreover, such issue will not apply to the facts of this
Court must take heed of language, legislative history and purpose, in order to strictly particular case. We are satisfied beyond reasonable doubt that the taking by the
determine the wrath and breath of the conduct the law forbids."89 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
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability was able to drop these off at a spot in the parking lot, and long enough to load these
of the offender to freely dispose of the property stolen is not a constitutive element onto a taxicab.
of the crime of theft. It finds no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the mens rea or actus reus of the Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed
felony. To restate what this Court has repeatedly held: the elements of the crime of complete from the moment the offender gains possession of the thing, even if he has
theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be no opportunity to dispose of the same. 92 And long ago, we asserted in People v.
taking of personal property; (2) that said property belongs to another; (3) that the Avila:93
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 x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to
against or intimidation of persons or force upon things. 90 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
Such factor runs immaterial to the statutory definition of theft, which is the taking, consent of the owner; and it will be here noted that the definition does not require
with intent to gain, of personal property of another without the latter’s consent. that the taking should be effected against the will of the owner but merely that it
While the Diño/Flores dictum is considerate to the mindset of the offender, the should be without his consent, a distinction of no slight importance. 94
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 Insofar as we consider the present question, "unlawful taking" is most material in this
victim. 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,
For the purpose of ascertaining whether theft is susceptible of commission in the without unlawful taking as an act of execution, the offense could only be attempted
frustrated stage, the question is again, when is the crime of theft produced? There theft, if at all.
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. With these considerations, we can only conclude that under Article 308 of the
Viewed from that perspective, it is immaterial to the product of the felony that the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be
offender, once having committed all the acts of execution for theft, is able or unable attempted or consummated.
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 Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the
Justice Aquino’s commentaries, as earlier cited, that "[i]n theft or robbery the crime offenders therein obtained possession over the stolen items, the effect of the felony
is consummated after the accused had material possession of the thing with intent has been produced as there has been deprivation of property. The presumed inability
to appropriate the same, although his act of making use of the thing was of the offenders to freely dispose of the stolen property does not negate the fact that
frustrated."91 the owners have already been deprived of their right to possession upon the
completion of the taking.
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 Moreover, as is evident in this case, the adoption of the rule —that the inability of
until the actor obtains such degree of control over the stolen item. But even if this the offender to freely dispose of the stolen property frustrates the theft — would
were correct, the effect would be to downgrade the crime to its attempted, and not introduce a convenient defense for the accused which does not reflect any legislated
frustrated stage, for it would mean that not all the acts of execution have not been 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 Revised Penal Code in order that frustrated theft may be recognized. Our deference
classification. It is difficult to formulate definite standards as to when a stolen item is to Viada yields to the higher reverence for legislative intent.
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? WHEREFORE, the petition is DENIED. Costs against petitioner.

Or, more likely, the appreciation of several classes of factual circumstances such as SO ORDERED.
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.
G.R. No. 209227
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 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
such deprivation for reasons of gain. For such will remain the presumed fact if vs.
frustrated theft were recognized, for therein, all of the acts of execution, including CHARLIE OROSCO, Accused-Appellant.
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 DECISION
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 VILLARAMA, JR., J.:
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
On appeal is the Decision1 dated March 22, 2013 of the Court of Appeals (CA) in CA-
G.R. CR-HC No. 05171 which affirmed the Decision2 dated June 24, 2011 of the
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet Regional Trial Court of Legazpi City, Branch 10 finding the accused-appellant Charlie
they do not align with the legislated framework of the crime of theft. The Revised Orosco guilty of the crime of Robbery with Homicide.
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
Appellant, along with Abner Astor, "John Doe" and "Peter Doe," were charged with
or impliedly allows that the "free disposition of the items stolen" is in any way
Robbery with Homicide defined and penalized under Article 294 of the Revised Penal
determinative of whether the crime of theft has been produced. Diño itself did not
Code, as amended. The Information reads as follows:
rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores
was ultimately content in relying on Diño alone for legal support. These cases do not
That on or about the 16th day of May, 2006, in the City of Legazpi, Philippines, and
enjoy the weight of stare decisis, and even if they did, their erroneous appreciation
within the jurisdiction of this Honorable Court, the above- named accused,
of our law on theft leave them susceptible to reversal. The same holds true of Empilis,
conspiring, confederating and helping one another, with intent of gain and by means
a regrettably stray decision which has not since found favor from this Court.
of violence, did then and there [willfully], unlawfully, feloniously and forcibly enter
the store owned by one Lourdes Yap situated at Purok 4, Barangay Rawis, Legazpi
We thus conclude that under the Revised Penal Code, there is no crime of frustrated
City, and once inside said store, take, steal and carry away cash money, to the
theft. As petitioner has latched the success of his appeal on our acceptance of the
damage and prejudice of said Lourdes Yap, and by reason of or on occasion of said
Diño and Flores rulings, his petition must be denied, for we decline to adopt said
robbery, and for the purpose of enabling them to take, steal and carry away the
rulings in our jurisdiction. That it has taken all these years for us to recognize that
aforesaid cash money in pursuance of their conspiracy, did then and there [willfully],
there can be no frustrated theft under the Revised Penal Code does not detract from
unlawfully and feloniously and taking advantage of their superior strength and with
the correctness of this conclusion. It will take considerable amendments to our
intent to kill, attack, assault and stab the aforesaid Lourdes Yap, thereby inflicting
upon her injury which directly caused her untimely death, to the damage and 1)Stab wound, left anterior costal region, measuring 2 x 0.5 cm, 5 cm from the
prejudice of her legal heirs. anterior midline, 9 cm deep. The wound tract is directed posteriorwards, upwards
and medialwards, cutting the sixth anterior thoracic rib and piercing the heart.
CONTRARY TO LAW.3
CONCLUSION:
The factual scenario presented by the prosecution is based on the eyewitness
account of Albert M. Arca (Arca), the postmortem findings of Sr. Pol. Chief Insp. Dr. The cause of death is hemorrhagic shock secondary to a stab wound of the trunk.
James Margallo Belgira who conducted the autopsy on the cadaver of the victim, and
the victim’s grandson, Ryan Francis Yap. He explained that it was possible that the lone stab wound caused by a sharp object,
such as a knife, was inflicted while the victim was standing, and found no other
Arca testified that on May 16, 2006, about one o’clock in the afternoon, he went to injuries such as defense wounds.6
the store of Lourdes Yap (Yap) at Purok 4, Barangay Rawis, Legazpi City. He was
buying ice but it was not yet hardened (frozen) so he went home. At around two For his defense, appellant testified that on the date and time of the incident, he was
o’clock, he was again sent on errand to buy ice at the same store. After purchasing at his house in Bigaa taking care of his three-year-old child while his wife was washing
the ice, he noticed there was a verbal tussle between Yap and two male customers. clothes. He stayed in the house until his wife finished the laundry at past 3:00 p.m.
The men were arguing that they were given insufficient change and insisting they He denied knowing Yap and his co- accused Astor. While he admitted that he was a
gave a P500 bill and not P100. When Yap opened the door, the two men entered the resident of Purok 4, Bgy. Rawis, his family transferred to their other house at Bigaa.
store. From outside the store and thru its open window grills, he saw one of the men He denied knowing Arca and he does not know of any motive for Arca to testify
placed his left arm around the neck of Yap and covered her mouth with his right hand against him. He worked in a copra company in Lidong but stopped reporting for work
while the other man was at her back restraining her hands. He recognized the man after May 16, 2006 as he was selling fish. He was arrested by the police at the rotunda
who was holding the hands of Yap as Charlie Orosco (appellant), while he described in Legazpi when he was buying medicine for his sick child.7
the man who covered her mouth as thin, with less hair and dark complexion. The
latter stabbed Yap at the center of her chest. When they released her, she fell down Appellant’s wife, Teresa Magdaong-Orosco also testified to confirm that at the time
on the floor. Appellant then took a thick wad of bills from the base of the religious of the incident he was at their house while she was doing the laundry just adjacent
icon or "santo" at the altar infront of the store’s window, after which he and the man to their house. On cross-examination, she was asked the distance between their
who stabbed Yap fled together with two other men outside who acted as lookouts. place and Bgy. Rawis and she replied that it will take less than one hour from Bigaa
Arca went near the bloodied victim but also left and went home afraid because he to Rawis.8
was seen by one of the lookouts.4
On June 24, 2011, the trial court rendered judgment convicting appellant of the crime
Yap was brought to the Aquinas University Hospital but she was declared dead on charged, thus:
arrival. Later, at the National Bureau of Investigation (NBI) Legazpi City District office,
Arca gave descriptions of the faces of appellant and the dark thin man who stabbed
WHEREFORE, above premises considered, the Court hereby finds accused Charlie
Yap ("John Doe"). From a surveillance digital photo and video clip shown to him, Arca
Orosco GUILTY of the crime of robbery with homicide. He is hereby sentenced to
positively identified Abner Astor (Astor) as one of the two men sitting beside the
suffer the penalty of reclusion perpetua, to pay the heirs of Lourdes Yap P75,000.00
store as lookouts. Consequently, warrants of arrest were issued against appellant and
as civil indemnity for the fact of death, P75,000.00 as moral damages and P30,000.00
Astor. But only appellant was arrested as Astor, John Doe and Peter Doe remained at
as exemplary damages.
large.
Insofar as the other accused is concerned, the case is hereby sent to the archives,
Dr. Belgira affirmed the findings in his Medico-Legal Report5 stating:
pending their eventual arrest.

TRUNK:
SO ORDERED.9
Appellant went to the CA but his appeal was dismissed. The CA upheld his conviction A.Orosco, sir.
as it found no compelling reason to deviate from the factual findings and conclusions
of the trial court. Q.If this Charlie Orosco whom you said was then holding the hands of Lourdes Yap, if
he is in Court, would you please point to him?
In this petition, appellant reiterates the arguments he raised before the CA that the
trial court erred in giving credit to the uncorroborated eyewitness testimony of Arca WITNESS (answering)
who could not point to him during the trial, and that even granting that criminal
charges may be imputed against him, it should only be robbery and not the complex A.Yes, sir.
crime of robbery with homicide considering the fact that it was not him who stabbed
Yap.
Q.Please look around you and point at him.

The appeal lacks merit.


A.He is here.

It is settled that witnesses are to be weighed not numbered, such that the testimony
Q.If he is in Court, please point at him.
of a single, trustworthy and credible witness could be sufficient to convict an accused.
The testimony of a sole witness, if found convincing and credible by the trial court, is
Q.Why can’t you point at him? COURT INTERPRETER
sufficient to support a finding of guilt beyond reasonable doubt. Corroborative
evidence is necessary only when there are reasons to warrant the suspicion that the
witness falsified the truth or that his observation had been inaccurate.10 At this juncture, the witness is somewhat trembling. ACP NUQUI

In this case, both the trial and appellate courts found the testimony of the lone Oh, you see. ATTY. BAÑARES
eyewitness, Arca, convincing notwithstanding that he was quite slow in narrating the
incident to the court and that he initially desisted from physically pointing to The witness can not answer. ACP NUQUI
appellant as the one who held Yap’s hands from behind and took her money at the
store after she was stabbed by appellant’s cohort (John Doe). By the look of the witness, Your Honor, he is afraid. Perhaps….

In his direct examination, Arca named appellant as one of those who robbed and xxxx
killed Yap but refused to pinpoint him in open court, thus:
ACP NUQUI (continuing)
ACP NUQUI x x x x
Q.Please point at him.
Q.This person who was holding the hands of Lourdes Yap, were you able to identify
him? ATTY. BAÑARES

A.Yes, sir. We have already foreseen the witness to pinpoint at anyone. ACP NUQUI

Q.Do you know the name of this person? No. He said that the…. ATTY. BAÑARES

A.Yes, sir. He is Charlie. Then, let him voluntarily do it. ACP NUQUI

Q.Do you know the family name? Okay.


ATTY. BAÑARES A.Yes, sir.

Your Honor, I move that the prosecutor will transfer to another question because we Q.Please point at him. ATTY BAÑARES
keep on waiting already.
The same observation, Your Honor. COURT
ACP NUQUI
Oh, the same observation? ACP NUQUI
Your Honor, it is understandable that even he is slow, he keeps on glancing at the
person. Yes, Your Honor, he is hesitant. It is understandable because he is afraid.

COURT xxxx

Observations are all noted. COURT (to the witness)

xxxx Q.Why can you not point at Charlie Orosco who according to you he is inside the
Court?
ACP NUQUI
WITNESS (answering)
At this point, Your Honor, I would like to make of record that when it comes to the
person of Charlie Orosco, Your Honor, he stopped and did not say ---- he did not nod A.I can’t afford to point at him.
or do anything of what he has been doing when the other persons were identified.
ACP NUQUI (to the witness)
COURT
Q.Why?
Okay. Noted.11
A. I am afraid.
Arca continued with his testimony on how Yap was stabbed by appellant’s
companion and appellant taking the thick wad of P1,000 bills before fleeing along COURT
with the two lookouts. When asked for the fourth time to pinpoint appellant, Arca
was still hesitant:Q.Now, is this Charlie Orosco here in Court?
He can not because he is afraid.12 (Emphasis supplied)

A.Yes, sir, he is around.


At the next hearing, Arca was recalled to the witness stand and this time he was able
to pinpoint appellant as among those persons who robbed and killed Yap, thus:
Q.This person who took the money or Charlie Orosco you said "he is in Court," will
you please look at him.
PROSECUTOR NUQUI

xxxx
Q- You mentioned that you saw two (2) persons talking to Lourdes Yap. Who are
these persons you are referring to?
ACP NUQUI (continuing)
ATTY. CHAN
Q.Is he now in Court?
Your Honor please, we are again registering our objection. looking towards the direction of accused Orosco. Though simple-minded, Arca was
well-aware of the possible consequences his testimony could trigger. To the Court’s
COURT mind, Arca’s act of constantly looking towards Orosco’s direction whenever he was
asked to point out one of the culprits, is a mute but eloquent manner of identifying
Witness may answer. Orosco as one of the perpetrators of the crime. As such, Arca’s act is sufficient
identification already.
WITNESS
Later, when Arca was recalled to the stand to answer some additional questions, he
was able to gather enough courage to point out to Orosco as the man who held the
A- Charlie Orosco and a certain thin person.
hands of Lourdes Yap while his companion stabbed her. Arca stated that he was
hesitant to identify and point out accused earlier because he feared what Orosco
PROSECUTOR NUQUI
might do to him. Incidentally, both Orosco and his wife stated that they do know
neither Albert Arca nor Lourdes Yap. Thus, it appears that there is no reason
Q- Why are you able to say that Charlie Orosco was one of the persons talking, how whatsoever for Arca to lie and attribute the crime to Orosco. Following settled
long have you known Charlie Orosco? jurisprudence, Arca’s positive identification of Orosco prevails over the latter’s alibi. 14

A- He always go with a fisherman and act as helper and because of that I know him. We find no compelling or cogent reason to deviate from the findings of the trial court
on its evaluation of Arca’s testimony. The well-settled rule in this jurisdiction is that
xxxx the trial court’s findings on the credibility of witnesses are entitled to the highest
degree of respect and will not be disturbed on appeal without any clear showing that
PROSECUTOR NUQUI it overlooked, misunderstood or misapplied some facts or circumstances of weight
or substance which could affect the result of the case. 15
Q- You mentioned that you have long known Charlie Orosco. Will you look around
and point to him if he is in Court? Appellant repeatedly harped on the hesitation of Arca to point to him at the trial.
However, as the trial court’s firsthand observation of said witness’ deportment
INTERPRETER revealed, Arca’s fear of appellant sufficiently explains his initial refusal to point to
him in open court during his direct examination. Arca was finally able to point to
At this juncture, the witness is pointing to a man wearing a yellow T-shirt with appellant as one of the perpetrators of the robbery and killing of Yap during his
handcuff and when asked answered by the name of Charlie Orosco. additional direct examination when he had apparently mustered enough courage to
do so.
PROSECUTOR NUQUI
Robbery with homicide is defined under Article 294 of the Revised Penal Code, as
amended, which provides in part:
No further questions Your Honor.13

Art. 294. Robbery with violence against or intimidation of persons – Penalties. – Any
Assessing the identification made by Arca, the trial court concluded that he had
person guilty of robbery with the use of violence against or intimidation of any person
positively identified appellant as one of the perpetrators of the robbery and killing of
shall suffer:
Yap, viz:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the


Here, Albert Arca, the prosecution’s main witness, positively identified accused
robbery, the crime of homicide shall have been committed, or when the robbery shall
Orosco as one of [the] two men who robbed and killed Lourdes Yap on that fateful
have been accompanied by rape or intentional mutilation or arson.
day. As observed by the trial court during the bail hearings, when asked to identify
one of the men who robbed and killed the victim, Arca was trembling and constantly
The elements of the crime of robbery with homicide are: (1) the taking of personal As we held in People v. Baron19
property is committed with violence or intimidation against persons; (2) the property
taken belongs to another; (3) the taking is done with animo lucrandi; and (4) by The concerted manner in which the appellant and his companions perpetrated the
reason of the robbery or on the occasion thereof, homicide (used in its generic sense) crime showed beyond reasonable doubt the presence of conspiracy. When a
is committed.16 Homicide is said to have been committed by reason or on the homicide takes place by reason of or on the occasion of the robbery, all those who
occasion of robbery if it is committed (a) to facilitate the robbery or the escape of the took part shall be guilty of the special complex crime of robbery with homicide
culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent whether they actually participated in the killing, unless there is proof that there
discovery of the commission of the robbery; or (d) to eliminate witnesses to the was an endeavor to prevent the killing.There was no evidence adduced in this case
commission of the crime.17In robbery with homicide, the original criminal design of that the appellant attempted to prevent the killing. Thus, regardless of the acts
the malefactor is to commit robbery, with homicide perpetrated on the occasion or individually performed by the appellant and his co-accused, and applying the basic
by reason of the robbery. The intent to commit robbery must precede the taking of principle in conspiracy that the "act of one is the act of all," the appellant is guilty as
human life. The homicide may take place before, during or after the robbery.18 a co-conspirator. As a result, the criminal liabilities of the appellant and his co-
accused are one and the same. (Emphasis supplied)
Here, the homicide was committed by reason of or on the occasion of the robbery as
appellant and John Doe had to kill Yap to accomplish their main objective of stealing In sum, the CA did not err in affirming the conviction of appellant for robbery with
her money. The earlier verbal tussle where the two pretended to have paid a greater homicide. Appellant was positively identified by prosecution eyewitness Arca as
amount and asked for the correct change was just a ploy to get inside the store where among those who perpetrated the robbery and killing of Yap at the latter’s store on
the victim kept her earnings. To verify whether the cash payment was indeed a P500 May 16, 2006 in Bgy. Rawis, Legazpi City. This positive identification prevails over
or P100 bill, the victim let them enter the store but once inside they got hold of her accused’s defense of alibi. As pointed out by the trial court, it was not physically
and stabbed her. Appellant, however, argues that if he had committed any offense, impossible for appellant to be at the scene of the crime considering the presence of
it was only robbery since Arca testified that it was John Doe, whom he described as many public conveyances which would drastically cut the one hour walk from Bigaa
a thin man, who stabbed the victim. to Rawis to only a "couple of minutes."20

We disagree. On the award of damages, the trial court was correct in sentencing appellant to suffer
the penalty of reclusion perpetua and ordering him to pay P75,000.00 as civil
The evidence presented by the prosecution clearly showed that appellant acted in indemnity for the fact of death and P75,000.00 as moral damages, conformably with
conspiracy with his co-accused. Appellant and John Doe first engaged the prevailing jurisprudence.21 We also find the award of exemplary damages in the
unsuspecting victim in a verbal altercation until she allowed them to enter the store. amount of P30,000.00 proper due to the presence of the aggravating circumstances
Upon getting inside, they held the victim with John Doe wrapping his arm around her of treachery and abuse of superior strength, though these were not alleged in the
neck while appellant held her hands at the back. With the victim pressed between information. While an aggravating circumstance not specifically alleged in the
the two of them, John Doe stabbed her once in her chest before releasing her. Once information (albeit established at trial) cannot be appreciated to increase the
she fell down, appellant quickly took the money placed at the altar inside the store criminal liability of the accused, the established presence of one or two aggravating
and fled together with John Doe and the two lookouts outside the store. All the circumstances of any kind or nature entitles the offended party to exemplary
foregoing indicate the presence of conspiracy between appellant and his co- accused damages under Article 2230 of the Civil Code because the requirement of specificity
in the perpetration of robbery and killing of the victim. in the information affected only the criminal liability of the accused, not his civil
liability.22
It must be stressed that appellant played a crucial role in the killing of the victim to
facilitate the robbery. He was behind the victim holding her hands while John Doe The aforesaid sums shall earn the legal interest at the rate of six percent (6%) per
grabbed her at the neck. His act contributed in rendering the victim without any annum from the finality of judgment until full payment.
means of defending herself when John Doe stabbed her frontally in the chest. Having
acted in conspiracy with his co- accused, appellant is equally liable for the killing of WHEREFORE, the appeal is DISMISSED. The Decision dated March 22, 2013 of the
Yap. Court of Appeals in CA-G.R. CR-HC No. 05171 affirming the Decision dated June 24,
2011 of the Regional Trial Court of Legazpi City, Branch 10 in Criminal Case No. 10916
is AFFIRMED. The sums awarded as civil indemnity (P75,000.00), moral damages Trial on the merits ensued.
(P75,000.00) and exemplary damages (P30,000.00) shall earn legal interest at the
rate of 6% per annum from the finality of judgment until full payment. The prosecution established that private complainant Juanita Flores (Flores) was
engaged in the business of guaranteeing purchase orders and gift checks of Shoemart
With costs against the accused-appellant. and Landmark and disposing, selling or transferring them for consideration. Appellant
initially worked as Flores’ house help but was eventually hired to work at Flores’
SO ORDERED office performing clerical jobs like sorting invoices. When Flores’ business grew,
appellant was assigned to bill and collect from sub-guarantors, and to encash and
deposit checks. On July 15, 2004, appellant collected ₱640,353.86 from the sub-
guarantors. However, appellant did not remit the amount to Flores or deposit it in
her (Flores’) account. Instead, she issued 15 personal checks totaling ₱640,353.86
and deposited them to Flores’ account. All the checks were dishonored upon
G.R. No. 200308 February 23, 2015 presentment due to "account closed." Appellant thereafter absconded.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, For her part, appellant denied having stolen the amount of ₱640,353.86.
vs.
MERA "JOY" ELEUTERIO NIELLES, @ MERA NIELLES DELOS REYES, Accused- Ruling of the Regional Trial Court (RTC)
Appellant.
In a Judgment4 dated March 26, 2008, the RTC of Makati City, Branch 132, found
RESOLUTION appellant guilty of the crime of qualified theft, thus:

DEL CASTILLO, J.: Given the foregoing, accused Nielles took ₱640,353.86 belonging to private
complainant Juanita J. Flores, without the latter’s consent. The taking was done with
Appellant Mera Joy Eleuterio Nielles @Mera Nielles Delos Reyes was charged with intent to gain because when the accused’s checks bounced, she failed to remit or
the crime of Qualified Theft in an Information that reads as follows: return the amount. The accused’s act was accomplished without the use of violence
against or intimidation of persons or force upon things, but rather by the use of abuse
That on or about and sometime in July, 2004 in the City of Makati, Philippines and a of confidence reposed [by] private complainant [upon] her. Thus, the elements of
place within the jurisdiction of this Honorable Court, the above-named accused, theft, as well as the circumstances that made the same as qualified theft, are present
being then the cashier of complainant Juanita J. Flores and as such enjoying the trust in the instant case.
and confidence reposed upon her by the said complainant, with intent to gain and
without the knowledge and consent of the owner thereof, with grave abuse of Accused Nielles, on the other hand, denied having stolen and carried away
confidence, did then and there willfully, unlawfully and feloniously take, steal, and ₱640,353.86. Aside from her bare denial, she did not present any evidence to support
carry away collected money in the total amount of ₱640,353.86 to the damage and this claim. In fact, she did not deny that the checks were issued and deposited by her.
prejudice of the complainant, in the aforementioned amount of ₱640,353.86. Furthermore, she did not provide any reason or motive why Juanita would file the
CONTRARY TO LAW.1 present case against her. Accordingly, her denial has no basis and deserves no
consideration.5
In an Order2 dated January 18, 2005, the Regional Trial Court (RTC) of Makati City,
Branch 132, ordered appellant's release from confinement after having posted a The dispositive portion of the RTC Judgment reads:
bond in the amount ₱100,000.00 undertaken by Far Eastern Surety & Insurance
Company, Inc. under Bond No. 8385. Appellant was thereafter arraigned where she WHEREFORE, the Court finds the accused, Mera "Joy" Eleuterio Nielles a.k.a. Mera
pleaded not guilty to the charges.3 Nielles Delos Reyes, GUILTY beyond reasonable doubt of the crime of Qualified Theft
and hereby sentences her to suffer the penalty of imprisonment of four (4) years of
prision correccional, as minimum to twenty (20) years of reclusion temporal, as
maximum. She is ordered to pay private complainant Juanita J. Flores ₱640,353.86 as reclusion perpetua. She is further ordered to pay Private Complainant the amount of
actual damages. ₱640,353.86.

SO ORDERED.6 SO ORDERED.9

Aggrieved, appellant filed a notice of appeal. At the same time, she submitted a Hence, this appeal. In a Resolution10 dated April 18, 2012, we required both parties
Renewal Certificate7 of her bond effective for the period January 18, 2008 to January to file their Supplemental Briefs. The Office of the Solicitor General manifested that
18, 2009. it is no longer filing its supplemental brief. On the other hand, appellant maintains in
her Supplemental Brief11 that the prosecution failed to establish that she unlawfully
Ruling of the Court of Appeals (CA) took the amount of ₱640,353.86 belonging to Flores. She claims that mere issuance
of the checks does not prove unlawful taking of the unaccounted amount. She insists
In her Brief, appellant asserted that since private complainant Flores was abroad on that, at most, the issuance of the checks proves that the same was issued for
July 15, 2004, she could not have personally known whether appellant indeed consideration. On February5, 2013, appellant furnished this Court her bond renewal
collected amounts from the sub-guarantors. She posited that mere issuance of the certificate12 issued by Far Eastern Surety & Insurance Co., Inc. effective for the period
15 checks is not proof that she received/collected payments from the sub-guarantors January 18, 2013 to January 18, 2014.
or that she failed to remit the monies belonging to Flores. She insisted that the
prosecution failed to establish that she indeed collected monies from the sub- Our Ruling
guarantors amounting to ₱640,353.86. Appellant also theorized that she might have
issued the checks in favor of the sub-guarantors for whatever transactions they have We concur with the findings of the trial court and the Court of Appeals that the
between them; and that thereafter, when she went to these sub-guarantors to prosecution satisfactorily established all the elements of qualified theft, to wit: 1)
collect their dues for private complainant, these sub-guarantors used the same taking of personal property;2) that said property belongs to another; 3) that the said
checks she previously issued as their payment for private complainant. For that taking was done with intent to gain; 4) that it was done without the owner’s consent;
reason her personal checks were deposited in private complainant’s account. 5) that it was accomplished without the use of violence or intimidation against
persons, or of force upon things; and 6) that it was done with grave abuse of
The CA, however, in its Decision8 dated May 26, 2011, was not impressed by confidence.13 As correctly found by the appellate court:
appellant’s protestations. It held that the fact that Flores was out of the country
during the commission of the offense is irrelevant since the prosecution has Private complainant testified that Accused-appellant took the amount of
satisfactorily established that upon her arrival in the Philippines, she immediately ₱640,353.86 from her without her consent by failing to turn over the amount she
investigated the matter and talked to the sub-guarantors. Flores also confirmed that collected from the former’s sub-guarantors. Instead, she issued fifteen (15) personal
indeed appellant issued 15 personal checks in lieu of the amounts collected and checks and deposited the same to Private Complainant’s account which however, all
deposited the same to Flores’ account but were all dishonored upon presentment. bounced for the reason "account closed". The taking of the amount collected by
Significantly, the CA noted that aside from her bare denial, appellant did not present Accused-appellant was obviously done with intent to gain as she failed to remit the
any evidence to support her claim that she did not steal the amount of ₱640,353.86 same to Private Complainant. Intent to gain is presumed from the act of unlawful
from Flores. In fine, the CA found all the elements for the crime of qualified theft to taking. Further, the unlawful act was accomplished by Accused-appellant without the
be present. use of violence or intimidation against persons, [or] of force upon things as the
payment to her of the said amount was voluntarily handed to her by the sub-
Thus, the CA affirmed with modification the ruling of the trial court, viz: guarantors as she was known to be entrusted with the collection of payments.

WHEREFORE, premises considered, the instant Appeal is hereby DENIED. The circumstance of grave abuse of confidence that made the same as qualified theft
Accordingly, the assailed 26 March 2008 Decision of the Regional Trial Court of was also proven.1âwphi1 Accused-appellant herself testified that as a cashier, her
Makati City, Branch 132 in Criminal Case No. 04-3643 is AFFIRMED with functions and responsibilities include billings and collections from their agents and
MODIFICATION. Accused-appellant is hereby sentenced to suffer the penalty of making of deposits and withdrawals in behalf of Private Complainant. Moreover,
when the payment for the purchase orders or gift checks becomes due, she would fill
up the four (4) blank checks given by the sub-guarantor with the knowledge and because the defense, on its own initiative, could very well compel, thru the
consent of Private Complainant. It is beyond doubt that an employee like a cashier compulsory processes of the court, the attendance of these sub-guarantors as
who comes into possession of the monies she collected enjoys the confidence witnesses.20 Moreover, we note that appellant did not even attempt to discredit the
reposed in her by her employer, as in the instant case. 14 testimony of Flores to the effect that upon her arrival from Hongkong, appellant went
to Flores’ office and admitted to having committed the offense.
We are one with the trial court and the appellate court in finding that the element of
taking of personal property was satisfactorily established by the prosecution. During Significantly, when appellant was placed on the witness stand, she did not even make
her cross-examination, private complainant Flores testified that upon having been any attempt to explain her issuance of the 15 checks. In fact, during her entire
apprised of the unremitted collections, she conducted an investigation and inquired testimony, she never made any mention about the personal checks that she issued
from her sub-guarantors who admitted making payments to appellant. 15 She also and deposited in Flores’ account. It was only in her Memorandum21 filed with the trial
testified during cross-examination that when appellant arrived from Hongkong, the court and her Brief22 submitted to the appellate court that the same was discussed.
latter went to Flores’ office and admitted to having converted the collections to her However, her explanation as to its issuance is so convoluted that it defies belief. All
personal use.16 Interestingly, when it was her turn to testify, appellant did not rebut that appellant could claim is that the issuance of the checks only proves that the same
Flores’ testimony. During her direct examination, appellant only testified thus: was for a consideration – but omitted to explain what the consideration was. She also
theorized that she might have issued the checks to the sub-guarantors for her
Atty. Regino – Question: personal transactions but likewise failed to elaborate on what these transactions
were. In any event, if indeed appellant did not steal the amount of ₱640,353.86
Madam Witness, you are being charged here with taking, stealing and carrying away belonging to Flores, how come she issued 15 personal checks in favor of the latter
collected money in the total amount of ₱640,353.86, that is owned by Juanita J. and deposited the same in her account, albeit they were subsequently dishonored?
Flores. What can you say about this allegation? Besides, we note that in appellant’s Counter Affidavit23 dated August 20, 2004
subscribed before 3rd Assistant City Prosecutor Hannibal S. Santillan of Makati City,
she already admitted having taken without the knowledge and consent of private
Witness:
complainant several purchase orders and gift checks worth thousands of pesos. She
claimed though that she was only forced to do so by Edna Cruz and cohorts.
That is not true, sir.
We also concur with the findings of the trial court and the CA that the prosecution
Atty. Regino – Question:
established beyond reasonable doubt that the amount of ₱640,353.86 actually
belonged to Flores; that appellant stole the amount with intent to gain and without
What is your basis in stating that? Flores’ consent; that the taking was accomplished without the use of violence or
intimidation against persons, or of force upon things; and that it was committed with
Witness: grave abuse of confidence.

I never took that six hundred forty thousand that they are saying and, I never signed Anent the penalty imposed, Articles 309 and 310 of the Revised Penal Code state:
any document with the sub-guarantors that I [took] money from them.17
Art. 309. Penalties. Any person guilty of theft shall be punished by:
Notably, when Flores testified during her cross-examination that she talked to the
sub-guarantors who admitted having made payments to appellant, the latter’s The penalty of prision mayor in its minimum and medium periods, if the value of the
counsel no longer made further clarifications or follow-up questions. Thus, Flores’ thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the
testimony on this fact remains on record unrebutted. Clearly, it is futile on the part value of the thing stolen exceeds the latter amount, the penalty shall be the
of the appellant to belatedly claim in her Brief before the appellate court that the maximum period of the one prescribed in this paragraph, and one year for each
prosecution should have presented these sub-guarantors so they could be cross- additional ten thousand pesos, but the total penalty which may be imposed shall not
examined.18 There is likewise no merit in her contention that the prosecution is guilty exceed twenty years. In such cases, and in connection with the accessory penalties
of suppression of evidence when they did not present these sub-guarantors19 simply
which may be imposed and for the purpose of the other provisions of this Code, the G.R. No. 203583 October 13, 2014
penalty shall be termed prision mayor or reclusion temporal, as the case may be.
LEONORA B. RIMANDO, Petitioner,
xxxx vs.
SPOUSES WINSTON and ELENITA ALDABA and PEOPLE OF THE
Art. 310. Qualified theft. The crime of theft shall be punished by the penalties next PHILIPPINES, Respondents.
higher by two degrees than those respectively specified in the next preceding articles,
if committed by a domestic servant, or with grave abuse of confidence, or if the DECISION
property stolen is motor vehicle, mail matter or large cattle or consists of coconuts
taken from the premises of the plantation or fish taken from a fishpond or fishery, or PERLAS-BERNABE, J.:
if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption,
or any other calamity, vehicular accident or civil disturbance. Before the Court is a petition for review on certiorari1 assailing the Decision2 dated
July 25, 2012 and the Resolution3 dated September 25, 2012 of the Court of Appeals
Based on the foregoing, since the amount taken is ₱640,353.86, then the imposable (CA) in CA-G.R. CV No. 96528, which affirmed the Decision4 dated October 28, 2010
penalty shall be the maximum period of prision mayor in its minimum and medium of the Regional Trial Court of Manila, Branch 15 (RTC) in Criminal Case No. 04-227211
periods, or eight(8) years, eight (8) months and one (1) day to ten (10) years, adding acquitting petitioner Leonora B. Rimando (Rimando) of the crime of estafa, but
one (1) year for each additional ₱10,000.00. Thus, from ₱640,353.86, we deduct nonetheless, held her civilly liable to respondents-spouses Winston and Elenita
₱22,000.00, giving us a balance of ₱618,353.86 which we divide by ₱10,000.00. We Aldaba (Sps. Aldaba) in the amount of ₱500,000.00. The Facts
now have sixty-one (61)years which we will add to the basic penalty of eight (8) years,
eight (8) months and one (1) day to ten (10) years. However, as stated in Article 309, An Information dated January 21, 2004 was filed before the RTC charging Rimando
the imposable penalty for simple theft should not exceed a total of twenty (20) years. of the crime of estafa through the use of false manifestations and fraudulent
Thus, if appellant had committed only simple theft, her penalty would be twenty (20) representations (estafa case).5 According to the prosecution, Rimando enticed Sps.
years of reclusion temporal. Considering however that in qualified theft, the penalty Aldaba to invest in her business under the assurance that it is stable and that their
is two degrees higher, then the appellate court properly imposed the penalty of money would earn 8% monthly interest.6 Convinced by Rimando’s proposal and
reclusion perpetua.24 taking into consideration their long friendship, Sps. Aldaba gave Rimando a check in
the amount of ₱500,000.00 as investment in her business. In turn, Rimando gave Sps.
Finally, we note that appellant has not yet been committed to prison. In view thereof Aldaba three (3) postdatedchecks, one for ₱500,000.00 and the other two (2) for
and based on our foregoing discussion, appellant must be ordered arrested and ₱40,000.00 each, and made them sign an investment contract with Multitel
committed to prison to start serving her sentence. International Holding Corporation (Multitel). Upon maturity of the checks, Sps.
Aldaba attempted to encash the same but were dishonored for being drawn against
ACCORDINGLY, the assailed May 26, 2011 Decision of the Court of Appeals in CA-G.R. insufficient funds.7 This prompted Sps. Aldaba to demand Rimando to make good the
CR No. 31635 is AFFIRMED. The Regional Trial Court of Makati City, Branch 132 is said checks, but to no avail. Hence, they were constrained tofile a criminal complaint
DIRECTED to issue a warrant for the arrest of appellant and to order her commitment for estafa against her.8
at the Correctional Institution for Women, and to submit to this Court a Report of
such commitment, all within ten (10) days from receipt of this Resolution. The In her defense, Rimando denied her friendship with Sps. Aldaba and that she enticed
Superintendent, Correctional Institution for Women is DIRECTED to confirm to this them to invest in her own business, as she had none. According to her, she only
Court the confinement of appellant within ten (10) days therefrom. referred them to Multitel Investment Manager Jaimelyn9Cayaban who handled their
investment.10 She also maintained that she only issued the three (3) post dated
SO ORDERED. checks to accommodate them while waiting for the check from Multitel, but when
the latter issued the check, Sps. Aldaba refused to accept it so she can be held liable
in case their investment fails.11
Meanwhile, Sps. Aldaba also filed a criminal case against Rimando for violation of is well-settled that "the acquittal of the accused does not automatically preclude a
Batas Pambansa Bilang (BP) 2212 before the Metropolitan Trial Court of Manila, judgment against him on the civil aspect of the case. The extinction of the penal
Branch VI, docketed as Crim. Cases Nos. 407191-193 (BP 22 cases).13 On July 7, 2010, action does not carry with it the extinction of the civil liability where: (a) the acquittal
Rimando was acquitted14 in the BP 22 cases on the ground of reasonable doubt, with is based on reasonable doubt as only preponderance of evidence is required; (b) the
a declaration that the act or omission from which liability may arise does not exist. court declares that the liability of the accused is only civil; and (c) the civil liability of
the accused does not arise from or is not based upon the crime of which the accused
The RTC Ruling is acquitted. However, the civil action based on delict may be deemed extinguished
if there isa finding on the final judgment in the criminal action that the act or omission
In a Decision15 dated October 28, 2010, the RTC acquitted Rimando of the crime of from which the civil liability may arise did not exist or where the accused did not
estafa, but found her civilly liable to Sps. Aldaba in the amount of ₱500,000.00. It commit the acts or omission imputed to him."22
found the absence of the element of deceit as Sps. Aldaba were fully aware that they
would be investing their money in Multitel and not in Rimando’s purported business. In this case, Rimando’s civil liability did not arise from any purported act constituting
Nevertheless, the RTC ruled that as an accommodation party to one of the checks the crime of estafa as the RTC clearly found that Rimando never employed any deceit
she issued to Sps. Aldaba on behalf of Multitel, Rimando should be heldliable to Sps. on Sps. Aldaba to induce them to invest money in Multitel. Rather, her civil liability
Aldaba for the corresponding amount of ₱500,000.00.16Aggrieved, Rimando was correctly traced from being an accommodation party to one of the checks she
appealed to the CA. In her Appellant’s Brief17 dated October 29, 2011, she contended issued to Sps. Aldaba on behalf of Multitel. In lending her name to Multitel, she, in
that her acquittal and exoneration from the civil liability in the BP 22 cases should effect, acted as a surety to the latter, and assuch, she may be held directly liable for
have barred Sps. Aldaba from claiming civil liability from her in the estafa case. 18 the value of the issued check.23 Verily, Rimando’s civil liability to Sps. Aldaba in the
amount of ₱500,000.00 does not arise from or is not based upon the crime she is
The CA Ruling charged with, and hence, the CA correctly upheld the same despite her acquittal in
the estafa case.
In a Decision19 dated July 25, 2012, the CAaffirmed the RTC Ruling. It held that a
prosecution for violation of BP 22 is distinct, separate, and independent from a In this relation, the CA is also correct in holding that Rimando’s acquittal and
prosecution for estafa, albeit they may both involve the same parties and transaction. subsequent exoneration in the BP 22 cases had no effect in the estafa case, even if
As such, Rimando’s acquittal and subsequent exoneration from civil liability in the BP both cases were founded on the same factual circumstances. In Nierras v. Judge
22 cases does not automatically absolve her from civil liability in the estafa case. 20 Dacuycuy,24 the Court laid down the fundamental differences between BP 22 and
estafa, to wit:
Rimando moved for reconsideration, which was, however, denied in a
Resolution21 dated September 25, 2012, hence, this petition. What petitioner failed to mention in his argument is the fact that deceit and damage
are essential elements in Article 315 (2-d) Revised Penal Code, but are not required
in Batas Pambansa Bilang 22.1âwphi1 Under the latter law, mere issuance of a check
The Issue Before the Court
that is dishonored gives rise to the presumption of knowledge on the part of the
drawer that he issued the same without sufficient funds and hence punishable which
The primordial issue for the Court’s resolution is whether or not the CA correctly
is not so under the Penal Code. Other differences between the two also include the
upheld Rimando’s civil liability in the estafa case despite her acquittal and following: (1) a drawer of a dishonored check may be convicted under Batas
exoneration from civil liability in the BP 22 cases.
Pambansa Bilang 22 even if he had issued the same for a preexisting obligation, while
under Article 315 (2-d) of the Revised Penal Code, such circumstance negates criminal
The Court’s Ruling liability; (2) specific and different penalties are imposed in each of the two offenses;
(3) estafa is essentially a crime against property, while violation of Batas Pambansa
The petition is without merit. Bilang 22 is principally a crime against public interest as it does injury to the entire
banking system; (4) violations of Article 315 of the Revised Penal Code are mala in se,
At the outset, the Court notes that Rimando’s acquittal in the estafa case does not while those of Batas Pambansa Bilang 22 are mala prohibita.25
necessarily absolve her from any civil liability to private complainants, Sps. Aldaba. It
Owing to such differences, jurisprudence in People v. Reyes26 even instructs that the LEONARDO-DE CASTRO, J.:
simultaneous filing of BP 22 and estafa cases do not amount to double jeopardy:
For Our consideration is an appeal from the Decision 1 dated March 18, 2011 of the
While the filing of the two sets of Information under the provisions of Batas Court of Appeals in CA-G.R. CR.-H.C. No. 03168, which affirmed the Joint
Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as Decision2 dated January 15, 2007 of the Regional Trial Court (RTC), Parañaque City,
amended, on estafa, may refer to identical acts committed by the petitioner, the Branch 195, in Criminal Case Nos. 03-0122 to 30, finding accused-appellant Roderick
prosecution thereof cannot be limited to one offense, because a single criminal act Gallemit y Tolentino guilty of the crimes of ( 1) illegal recruitment in large scale, as
may give rise to a multiplicity of offenses and where there is variance or differences defined and penalized under Article II, Section 6, in relation to Section 7(b) of
between the elements of an offense is one law and another law as in the case at bar Republic Act No. 8042, otherwise known as the "Migrant Workers and Overseas
there will be no double jeopardy because what the rule on double jeopardy prohibits Filipinos Act of 1995;" and (2) estafa, as defined and penalized under Article 315,
refers to identity of elements in the two (2) offenses. Otherwise stated, prosecution paragraph 2(a) of the Revised Penal Code, but modified the penalties imposed upon
for the same act is not prohibited. What is forbidden is prosecution for the same appellant for said crimes.
offense. Hence, the mere filing of the two (2) sets of information does not itself give
rise to double jeopardy.27 In an Information dated January 3, 2003, docketed as Criminal Case No. 03-0122,
Angelita I. Daud (Daud), Hanelita M. Gallemit (Hanelita), and appellant Roderick
Essentially, while a BP 22 case and an estafa case may be rooted from an identical set Gallemit y Tolentino were charged before the RTC with illegal recruitment in large
of facts, they nevertheless present different causes of action, which, under the law, scale, allegedly committed as follows:
are considered "separate, distinct, and independent" from each other. Therefore,
both cases can proceed to their final adjudication – both as to their criminal and civil That on or about or sometime during the period from February 5, 2001 to August
aspects – subject to the prohibition on double recovery. 28 Perforce, a ruling in a BP 2001, in the City of Parañaque, Philippines, and within the jurisdiction of this
22 case concerning the criminal and civil liabilities of the accused cannot be given any Honorable Court, the above-named accused, conspiring and confederating together
bearing whatsoever in the criminal and civil aspects of a related estafa case, as in this and both of them mutually helping and aiding one another, representing themselves
instance. to have the capacity to contract, enlist and transport Filipino workers for
employment abroad, did then and there willfully, unlawfully and feloniously, for a
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated July 25, 2012 fee, recruit and promise employment abroad to complainants Marcelo De Guzman,
and the Resolution dated September 25, 2012 of the Court of Appeals in CA-G.R. CV Evangeline Relox, Maricel Rayo, Brigida Rayo, Gina Decena, Nenita Policarpio, Myrna
No. 96528 are hereby AFFIRMED. Crisostomo and Francisco Poserio, without first securing the required license or
authority from the Department of Labor and Employment thus deemed committed
SO ORDERED. in large scale and therefore amounting to economic sabotage.3

Eight more Informations, all dated January 3, 2003, docketed as Criminal Case Nos.
03-0123 to 03-0130, charged Daud, Hanelita, and appellant before the RTC with eight
counts of Estafa, committed separately upon eight private complainants, namely,
Marcelo I. De Guzman (De Guzman), Evangeline I. Relox, Marcelo E. Rayo, Brigada A.
G.R. No. 197539 June 2, 2014 Rayo, Gina T. Decena (Decena), Nenita F. Policarpio, Myrna S. Crisostomo and
Francisco S. Poserio (Poserio), respectively.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. The Information in Criminal Case No. 03-0123 alleged:
ANGELITA I. DAUD, HANELITA M. GALLEMIT and RODERICK GALLEMIT y
TOLENTINO, Accused. That on or about covering the period from February 2001 up to March 2001, in the
RODERICK GALLEMIT y TOLENTINO, Accused-appellant. City of Parañaque, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and all of them
DECISION mutually helping and aiding one another, did then and there willfully and feloniously
defraud Marcelo de Guzman y Ignacio pertinent to his overseas job employment if after the defense admitted the due execution and genuineness of the POEA
he would deliver to them the amount of ₱545,000.00 by means of other similar deceit Certification dated September 19, 2002.13
knowing it to be false and only made to induce the aforementioned complainant to
give and deliver the said amount of ₱545,000.00 and accused once in possession of Evidence for the defense consisted solely of appellant’s testimony.
the same, did then and there willfully, unlawfully and feloniously misapply and
misappropriate the said amount to their own personal use and benefit to the damage After trial on the merits, the RTC rendered its Decision dated January 15, 2007 finding
and prejudice of the said MARCELODE GUZMAN y IGNACIO in the aforementioned appellant guilty of Illegal Recruitment in Large Scale and Estafa on three (3) counts.
amount.4 The dispositive portion of the judgment reads:

The seven other Informations in Criminal Case Nos. 03-0124 to 03-0130 were WHEREFORE, judgment is hereby rendered as follows:
similarly worded as the aforequoted Information, except as to the name of the
private complainant and the amount purportedly collected from him/her, to wit:
(1) In Criminal Case No. 03-0122, the Court finds accused Roderick
Gallemit y Tolentino, GUILTY BEYOND REASONABLE DOUBT as
Docket No. Private Complainant Amount Collected principal of the crime of Illegal Recruitment in Large Scale in
violation of Section 6 in relation to Section 7 of RA 8042, otherwise
Crim. Case No. 03-01245 Evangeline I. Relox, ₱25,000.00 known as the Migrant Workers and Overseas Filipinos Act of 1995
and hereby sentences him to a penalty of life imprisonment and a
Crim. Case No. 03-01256 Marcelo E. Rayo ₱45,000.00 fine of Five Hundred Thousand Pesos (₱500,000.00).
Crim. Case No. 03-01267 Brigada A. Rayo ₱28,000.00
(2) In Criminal Case No. 03-0123, the Court finds accused Roderick
Crim. Case No. 03-01278 Gina T. Decena ₱70,000.00 Gallemit y Tolentino GUILTY BEYOND REASONABLE DOUBT as
principal of the crime of Estafa under Article 315 paragraph 2(a) of
Crim. Case No. 03-01289 Nenita F. Policarpio ₱50,000.00 the Revised Penal Code and hereby sentences him to suffer the
Indeterminate Penalty of two (2) years and four (4) months as
Crim. Case No. 03-012910 Myrna S. Crisostomo ₱24,500.00
minimum to thirteen (13) years as maximum which carries with it
Crim. Case No. 03-013011 Francisco S. Poserio ₱70,000.00 the accessory penalty of suspension from public office, from the
right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage. The accused is further
Only appellant was apprehended, while his co-accused Daud and Hanelita eluded sentenced to pay complaining witness Marcelo De Guzman y
arrest and remained at large. Ignacio the amount of Eighty Thousand Pesos (₱80,000.00) plus
twelve percent (12%) interest from the date of the filing of the
The nine criminal cases against appellant before the RTC were consolidated. When Information on February 3, 2003, with subsidiary imprisonment in
arraigned, appellant pleaded not guilty to all the charges against him. Thereafter, case of insolvency, plus the costs of suit;
joint trial of the nine criminal cases ensued.
(3) In Criminal Case No. 03-0127,the Court finds accused Roderick
The prosecution offered as evidence the Philippine Overseas Employment Gallemit y Tolentino GUILTY BEYOND REASONABLE DOUBT as
Administration (POEA) Certification dated September 19, 2002 stating that Green principal of the crime of Estafa under Article 315 paragraph 2(a) of
Pasture Worldwide Tour and Consultancy, with address at India St., Don Bosco, the Revised Penal Code and hereby sentences him to suffer the
Parañaque City, set up and operated by appellant and his co-accused, is not licensed indeterminate Penalty of two (2) years, four (4) months as
to recruit workers for overseas employment.12 minimum to nine (9) years as maximum which carries with it the
accessory penalty of suspension from public office, from the right
Of all the private complainants, only De Guzman, Decena, and Poserio testified to follow a profession or calling, and that of perpetual special
against Gallem it. The presentation of a POEA representative was dispensed with
disqualification from the right of suffrage. The accused is further indeed sending workers abroad. It was at this office that [De Guzman] first met
sentenced to pay the costs of suit; and [appellant] and [Hanelita].

(4) In Criminal Case No. 03-0130, the Court finds accused Roderick Meanwhile, [Daud], together with [Hanelita] and [appellant], put up their own
Gallemit y Tolentino GUILTY BEYOND REASONABLE DOUBT as business named Green Pastures Worldwide Tours and Consultancy Corporation in
principal of the crime of Estafa under Article 315 paragraph 2(a) of their residence at No. 4 Sta. Maria Apartment, India St., Better Living Subdivision,
the Revised Penal Code and hereby sentences him to suffer the Barangay Don Bosco, Parañaque City.
Indeterminate Penalty of two (2) years and four (4) months as
minimum to twelve (12) years and two (2) months as maximum Having been convinced by the documents shown to him at the Taft Avenue office,
which carries with it the accessory penalty of suspension from [De Guzman] paid [Daud] the amount of ₱35,000[.]00 as initial payment for his
public office, from the right to follow a profession or calling, and placement fee at the latter’s office and residence in Parañaque City on February 2,
that of perpetual special disqualification from the right of suffrage. 2001. On February 5, 2001, [De Guzman] gave [Daud] the amount of ₱15,000[.]00
The accused is further sentenced to pay costs of suit. which was witnessed by Hanelita. He gave another ₱15,000.00 on February 22, 2001.
However, he lost the original receipts.
(5) Criminal Case Nos. 03-0124, 03-0125, 03-0126, 03-0128, and 03-
0129, for failure to prosecute, are hereby ordered Dismissed, as On March 3, 6 and 7, 2001, [De Guzman] again gave [Daud] x x x different amounts
against accused Roderick Gallemit. consisting of ₱35,000.00, ₱30,000.00 and ₱15,000.00, respectively, at her office in
Parañaque City (Exhibits "A" to "C"). In [De Guzman]’s presence, [Daud] counted the
Considering that accused ANGELITA I. DAUD and HANELITA M. GALLEMIT remain at money, issued receipts therefor as "processing fees of Nike applicants", affixed her
large for more than six (6) months since the issuance and delivery of the warrant of signature after signing the receipts in the name of "Nimfa Min". [Daud] explained to
arrest to the proper police or peace officer, the cases against them are hereby him that "Nimfa Min" was her contact who happened to be the wife of a Korean
ordered ARCHIVED pursuant to Administrative Circular No. 7-A-92. Let an alias national. [De Guzman] trusted [Daud] and accepted her explanation. Whenever he
warrant of arrest be issued against them.14 gave his payment to [Daud], it was in the presence of Hanelita and [appellant] but he
did not require the two to sign as witnesses because he trusted them as they were
Following the denial of his Motion for Reconsideration by the RTC in an Order 15 dated members of the same family. [De Guzman] was told by [Daud] and [appellant] that
April 3, 2007, appellant filed an appeal before the Court of Appeals. he and his group would be leaving in two week’s time.

The Court of Appeals summarized the private complainants’ testimonies against [De Guzman] and his companions were instructed to appear before the Korean
appellant, viz: Embassy and were promised that they would be able to leave on March 11, 2001 as
trainee workers in Korea where they would earn a monthly salary of US$400,
Marcelo de Guzman[(De Guzman)], a dentist by profession with a clinic in Bulacan, overtime pay, with benefits of free board and lodging and 30-day leave within a year.
testified that sometime in January 2001, he was introduced by his patient Modesta De Guzman’s group were shown photocopies of their passport and stamped visas for
Marqueda to her cousin, accused [Daud]. [Daud] encouraged [De Guzman] to apply Korea. However, they were not given their working permits and job contracts.
for work abroad and convinced him that she would be able to send him to Korea. To
prove to [De Guzman] that she was capable of sending workers abroad, [Daud] When their departure date was getting near, [Daud] postponed it thrice. Eventually,
invited him to visit her office located at Taft Avenue, Manila. [De Guzman] asked from accused [Daud] a photocopy of his passport with a stamped
Korean Visa. Upon inquiry with the Korean Embassy, [De Guzman] was told that it
A month later, [De Guzman] and his cousins Maricel Rayo, Brigida Rayo, Myrna was fake. He proceeded to the Philippine Overseas Employment Administration
Crisostomo, Francisco Poserio, Evangeline Relox, [Decena] and Nenita Policarpio, (POEA) and verified the registration of Green Pastures Worldwide Tour and
wentto see [Daud] at the Jemimah International Manpower Services, located at Taft Consultancy Corporation. The POEA informed them that it was not registered with
Avenue, Manila where the latter was then working as a liaison officer. The group was the POEA and gave[De Guzman] a certification to the effect that the said agency was
shown job orders and photos of [Daud] with Korean employees to prove that she was not licensed to recruit employees for abroad (Exhibit D).
Embarrassed because of the money given by his cousins, [De Guzman] verbally asked Enticed, [Poserio] mortgaged his property to get funds for his job application. [Daud]
[Daud], Hanelita and [appellant] to return the money. They promised him that they and Hanelita informed him to undergo a medical examination and seminar and even
would settle the matter but they failed to return the money. x x x. gave him a referral. On January 27, 2001, he gave his passport, medical examination
result, seminar result and certification for employment. He was then told to pay
Gina Decena, for her part testified that sometime in January 2001, she was ₱100,000.00 as processing fee for his job application. On March 3, 2001, he gave his
introduced by her cousin, Maricel Rayo, to accused [Daud], [Hanelita] and down payment of ₱25,000.00 to [Daud] in the presence of Hanelita and [appellant].
[appellant], at the Makati Medical Towers where Maricel had her medical He was told to wait for two weeks for the processing of his papers. On July 2001, he
examination. [Decena] again met the three accused at their office at No. 4 Sta. Maria was informed that additional amount was needed to process his papers. Thus, on July
Apartment, Better Living Subdivision, Parañaque City when Maricel obtained a copy 5, 2001, he gave ₱45,000.00 as additional payment to [Daud] in the presence of
of her medical certificate. They enticed [Decena] to apply at their agency by showing Hanelita. He was again told to wait for another three weeks. He was even promised
her job orders that offered $400 [a] month salary, 150% overtime pay, free board that they would return his money if he would notbe sent abroad. A year after his
and lodging as well as photographs of prospective Korean employers. [Appellant] payment, [Poserio] was still not able to leave the country. Upon verification with the
even gave her a copy of the job order. The three accused assured [Decena] that they POEA, he and the other job applicants discovered that the said agency was not
had already sent several applicants for employment abroad. Convinced, [Decena] and licensed to recruit workers for overseas employment. He talked over the phone with
her husband Marcelo Rayo applied at their agency. They were instructed to undergo the accused and demanded the return of his money. When they failed to return his
medical examination, to attend a Korean Language seminar, and to pay ₱70,000.00 money, he filed a complaint with the Parañaque police.
processing fee.
All three complainants positively identified [appellant] in court.16 (Citations omitted.)
Thus, on February 15, 2001, [Decena] and her husband each gave accused [Daud] the
amount of ₱35,000.00 as placement fees. During trial, [Decena] presented her The Court of Appeals similarly provided a gist of appellant’s testimony, thus:
receipt for ₱35,000.00 which was received and signed by [Daud].
Roderick Gallemit [(appellant)] denied owning the agency, undertaking any
Thereafter, the couple were told to wait for two weeks for the processing of their recruitment act or receiving any amount from the complainants considering that his
visas. As two weeks have passed and nothing happened to their applications, name did not appear in the receipts. He admitted that he is married to co-accused
[Decena] and her husband went to the POEA to verify the status of the agency. They [Hanelita] and that co-accused [Daud] is his mother-in-law.
were informed to the effect that said agency was not licensed to send workers
abroad. [Decena] and her husband went back to the agency and tried to look for the He knew private complainants [De Guzman] and [Poserio] who were introduced to
accused but they were all gone. They later came to know, through [De Guzman], that him by [Daud] who was then working as a liaison officer at Jemimah International
[appellant] was apprehended. She identified her sworn statement in court. Manpower Services located in Taft Avenue, Manila. [Appellant] denied knowing the
other complainants. He was just brought along by [Daud] since he was also one of
Sometime in January 2001, Francisco Poserio [(Poserio)] was brought along by his the job seekers applying at the Jemimah International Manpower Services where
cousin [De Guzman] to No. 4 Sta. Maria Apt., India St., Better Living Subdivision, [Daud] worked. [Daud] told him that private complainant [De Guzman] is her
Barangay Don Bosco, Parañaque City. While thereat, [De Guzman] introduced [Daud], business partner. [Poserio] was one of those applying for a job abroad and [De
Hanelita and [appellant] as the owners of Green Pastures Worldwide Tours and Guzman] would refer them to [Daud]. Thus, [De Guzman] frequented their apartment
Consultancy and that they were sending workers to Korea. The three accused in Parañaque.
encouraged [Poserio] to apply for work in Korea where he could get a job which
offered a monthly salary of US$400 with free meals and housing, 150% pay on He admitted that, from February 2001 to August 2001, he had been staying at the
overtime work and vacation leave of thirty (30) days in a two-year contract. To apartment in India Street, Better Living Subdivision, Parañaque City he shared with
convince [Poserio] that they can send workers to Korea, they showed him job orders his wife Hanelita, their child and his mother-in-law [Daud]. He and his wife were not
from Hyundai Group and Nike requiring workers for Korea, a copy of a Korean visa of employed since they were applying for a job abroad. His siblings help him out by
one of their job applicants, and photos of [Daud] in Korea with a Korean national who sending him money for his job application. He was aware that his mother-in-law
would be [Poserio]’s prospective employer if he applied with their agency. Further, [Daud] was a recruiter and owned an agency named Green Pasture Worldwide Travel
he would be able to earn back his placement fee in three months work. and Tours which she operated in the same apartment.
He claimed that [Daud] has only one employee, a certain Badjong, who processed THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
documents. At first he did not apply with [Daud] because her business was still new. APPELLANT OF LARGE-SCALE ILLEGAL RECRUITMENT AND ESTAFA DESPITE
He applied with her when she convinced him that she could process his passport and THE PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE
papers to Korea. DOUBT.

He denied he was present when the complainants gave their payments to [Daud]. He II
insisted that he was not involved with [Daud]’s business and that he was always out
of the house as he would often go to Cavite to ask for financial help from his siblings. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
x x x.17 (Citations omitted.) APPELLANT OF ESTAFADESPITE THE ABSENCE [OF] THE ELEMENT OF DECEIT.

In its Decision dated March 18, 2011,the Court of Appeals affirmed appellant’s Illegal recruitment in large scale
conviction by the RTC, but modified the indeterminate penalties imposed on
appellant for the three counts of estafa. The appellate court decreed: Appellant anchors his bid for acquittal on the failure of the prosecution to prove that
he gave private complainants the distinct impression that he had the power or ability
WHEREFORE, the appealed decision finding accused-appellant RODERICK GALLEMIT to send them abroad for work such that they were convinced to part with their
y TOLENTINO guilty beyond reasonable doubt of Illegal Recruitment in Large Scale money. Any encouragement or promise of employment abroad was solely made by
and of Estafa is AFFIRMED with modification with respect to the indeterminate Daud. Appellant points out that it was only his alleged presence at the time private
penalties imposed on appellant for the three counts of estafa, to wit: complainants were making their payments to Daud that led said private complainants
to believe that appellant participated in the recruitment scheme.
(1) In Criminal Case No. 03-0123, appellant is sentenced to suffer
the indeterminate penalty of two (2) years and four (4) months of The Office of the Solicitor General, as counsel for the appellee, insists that appellant
prision correccional as minimum to thirteen (13) years of reclusion acted in conspiracy with his co-accused in engaging in illegal recruitment activities,
temporal as maximum. specifically performing the following acts: (1) Appellant, together with his co-
accused, owned and operated Green Pasture Worldwide Tour and Consultancy
(2) In Criminal Case No. 03-0127, appellant is sentenced to suffer Corporation; (2) Appellant, together with his co-accused, encouraged private
the indeterminate penalty of two (2) years and four (4) months of complainants to apply for jobs abroad with their agency, promising private
prision correccional as minimum to nine (9) years of prision mayor complainants salary of US$400.00, 150% overtime pay, and free board and lodging;
as maximum. (3) Appellant, together with his co-accused, assured private complainants that they
could leave for Korea within a short period after paying their placement fees; and (4)
(3) In Criminal Case No. 03-0130, appellant is sentenced to suffer Appellant was present everytime private complainants made payments to his co-
the indeterminate penalty of two (2) years and four (4) months of accused Daud. In addition, private complainants De Guzman, Decena, and Poserio
prision correccional as minimum to twelve (12) years of prision positively identified and pointed to appellant in court as one of the persons who
mayor as maximum. recruited them for work abroad.19

In all other respects, the assailed Decision is AFFIRMED. 18 Article 13(b) of the Labor Code defines recruitment and placement as "any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers;
Hence, appellant comes before us via the instant appeal with the same assignment and includes referrals, contract services, promising or advertising for employment,
of errors which he raised before the Court of Appeals: locally or abroad, whether for profit or not." In the simplest terms, illegal recruitment
is committed by persons who, without authority from the government, give the
impression that they have the power to send workers abroad for employment
I
purposes.20
Republic Act No. 8042 broadened the concept of illegal recruitment under the Labor Both the RTC and the Court of Appeals ruled that all the foregoing elements of illegal
Code and provided stiffer penalties, especially for those that constitute economic recruitment in large scale are present in the case at bar. As the Court of Appeals
sabotage, i.e., Illegal Recruitment in Large Scale and Illegal Recruitment Committed discussed in detail:
by a Syndicate.
First, neither the agency "Green Pastures World Wide Tours and Consultancy" nor
Section 6 of Republic Act No. 8042 defined illegal recruitment as follows: appellant himself had a valid license or authority to engage in the recruitment and
placement of workers. This was established by the POEA certification stating that the
SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of said agency located in that apartment was not licensed to recruit employees for
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers abroad. A license is a document issued by the Department of Labor and Employment
and includes referring, contract services, promising or advertising for employment (DOLE) authorizing a person or entity to operate a private employment agency, while
abroad, whether for profit or not, when undertaken by a non-licensee or non-holder an authority is a document issued by the DOLE authorizing a person or association to
of authority contemplated under Article 13(f) of Presidential Decree No. 442, as engage in recruitment and placement activities as a private recruitment entity. It is
amended, otherwise known as the Labor Code of the Philippines: Provided, That any the lack of the necessary license or authority that renders the recruitment activity,
such non-licensee or non-holder who, in any manner, offers or promises for a fee as in this case, unlawful or criminal.
employment abroad to two or more persons shall be deemed so engaged. It shall
likewise include the following acts, whether committed by any person, whether a Second, despite not having such authority, appellant, along with his co-accused,
non-licensee, non-holder, licensee or holder of authority: nevertheless engaged in recruitment activities, offering and promising jobs to private
complainants and collecting from them various amounts as placement fees. This is
xxxx substantiated by the respective testimonies of the three private complainants who
fell victim to their illegal activities. Marcelo de Guzman testified that appellant was
(m) Failure to reimburse expenses incurred by the worker in connection with his physically present during the time that he and his companions were being shown job
documentation and processing for purposes of deployment, in cases where the orders and while he was paying for the fees for himself and in behalf of his
deployment does not actually take place without the worker’s fault. Illegal companions. Francisco Poserio testified that appellant was one of those who
recruitment when committed by a syndicate or in large scale shall be considered an apprised him of job benefits and tried to convince him to apply for overseas
offense involving economic sabotage. employment through their agency. Gina Decena mentioned that [appellant] even
gave her a copy of the job order.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of
three (3) or more persons conspiring or confederating with one another. It is deemed We find no cogent reason to disturb the findings of the lower court that there was
committed in large scale if committed against three (3) or more persons individually conspiracy among the accused in the commission of the offense. Direct proof of
or as a group. previous agreement to commit a crime is not necessary. It may be deduced from the
mode and manner in which the offense was perpetrated, or inferred from the acts of
the accused which point to a joint purpose and design, concerted action and
To constitute illegal recruitment in large scale, three elements must concur: (a) the
community of interest. Conspiracy exists where the participants performed specific
offender has no valid license or authority required by law to enable him to lawfully
acts with such closeness and coordination as unmistakably to indicate a common
engage in recruitment and placement of workers; (b) the offender undertakes any of
purpose or design in committing the crime.
the activities within the meaning of

The testimonies of the complainants on the matter are affirmative in nature and
"recruitment and placement" under Article13(b) of the Labor Code, or any of the
sufficiently corroborative of each other to be less than credible. It would be contrary
prohibited practices enumerated under Article 34 of the said Code (now Section 6 of
to human nature and experience for several persons to conspire and accuse appellant
Republic Act No. 8042); and (c) the offender committed the same against three or
of a crime and send him to prison just to appease their feeling of rejection and
more persons, individually or as a group.21
vindicate the frustration of their dreams to work abroad if all he did was just to reside
in the same apartment where his mother-in-law [Daud] operated her recruitment
agency. It is in this light that We find any inconsistencies that accused-appellant harps
on in the tesimonines of the complainants to be inconsequential. What is important Between the categorical statements of the private complainants, on the one hand,
is that they have positively identified accused-appellant as one of those who enticed and the bare denial of appellant, on the other hand, the former must perforce prevail.
them to part with their money in exchange for promised jobs abroad. An affirmative testimony is far stronger than a negative testimony especially when
the former comes from the mouth of a credible witness. Denial, same as an alibi, if
The crime of illegal recruitment, according to the Supreme Court is committed when, not substantiated by clear and convincing evidence, is negative and self-serving
among other things, a person, who without being duly authorized according to law, evidence undeserving of weight in law. It is considered with suspicion and always
represents or gives the distinct impression that he or she has the power or the ability received with caution, not only because it is inherently weak and unreliable, but also
to provide work abroad convincing those to whom the representation is made or to because it is easily fabricated and concocted.25
whom the impression is given to thereupon part with their money in order to be
assured of that employment. This is what obtains in this case. Furthermore, without any evidence to show that private complainants were
propelled by any ill motive to testify falsely against appellant, their testimonies
Contrary to appellant’s mistaken notion, it is not the issuance or signing of receipts deserve full faith and credit. After all, the doctrinal rule is that findings of fact made
for the placement fees that makes a case for illegal recruitment, but rather the by the trial court, which had the opportunity to directly observe the witnesses and to
undertaking of recruitment activities without the necessary license or authority. The determine the probative value of the other testimonies, are entitled to great weight
absence of receipts to evidence payment is not necessarily fatal to the prosecution’s and respect because the trial court is in a better position to assess the same, an
cause. A person charged with the illegal recruitment may be convicted on the opportunity not equally open to the appellate court. The absence of any showing that
strength of the testimony of the complainants, if found to be credible and convincing. the trial court plainly overlooked certain facts of substance and value that, if
considered, might affect the result of the case, or that its assessment was arbitrary,
Considering the evidence on record, We agree with the trial court that accused- impels us to defer to the trial court’s determination according credibility to the
appellant engaged in recruitment of workers which was illegal and in large scale. prosecution evidence.26 This is more true if the findings of the trial court were
Illegal recruitment is deemed committed in large scale if committed against three or affirmed by the appellate court, since it is settled that when the trial court’s findings
more persons individually or as a group. In this case, three complainants testified have been affirmed by the appellate court, said findings are generally binding upon
against appellant’s acts of illegal recruitment.22 (Citations omitted.) this Court.27

The Court finds no cogent reason to deviate from the findings and conclusions of the Given the foregoing, we uphold the conviction of appellant for illegal recruitment in
RTC and the Court of Appeals. The prosecution witnesses were positive and a large scale, which constitutes economic sabotage. The penalty of life imprisonment
categorical in their testimonies that they personally met appellant; that they knew and the fine of ₱500,000.00, imposed upon appellant for the said offense by the RTC,
appellant was associated with Green Pasture Worldwide Tour and Consultancy; and and affirmed by the Court of Appeals, is in accord with Section 7(b) of Republic Act
that appellant had performed recruitment activities such as promising employment No. 8042, which provides:
abroad, encouraging job applications, and providing copies of job orders. The private
complainants’ testimonies are consistent and corroborate one another on material Sec. 7. Penalties.–
points, such as the amount of the placement fees asked, and the purported country
of destination and nature of work. (a) Any person found guilty of illegal recruitment shall suffer the
penalty of imprisonment of not less than six (6) years and one (1)
It was not necessary for the prosecution to still prove that appellant himself received day but not more than twelve (12) years and a fine of not less than
the placement fees from private complainants and issued receipts for the same, given Two hundred thousand pesos (₱200,000.00) nor more than Five
the finding of both the RTC and the Court of Appeals of the existence of conspiracy hundred thousand pesos (₱500,000.00).
among appellant and his co-accused Hanelita and Daud, appellant’s wife and mother-
in-law, respectively. When there is conspiracy, the act of one is the act of all.23 It is (b) The penalty of life imprisonment and a fine of not less than Five
not essential that there be actual proof that all the conspirators took a direct part in hundred thousand pesos (₱500,000.00) nor more than One million
every act. It is sufficient that they acted in concert pursuant to the same objective.24 pesos (₱1,000,000.00) shall be imposed if illegal recruitment
constitutes economic sabotage as defined herein. (Emphasis ours.)
Estafa Appellant contends that he cannot be convicted of estafa because the element of
deceit is lacking. He insists on the absence of proof that he made any false statement
We likewise affirm the conviction of appellant for three counts of estafa committed or fraudulent representation to private complainants.
against the private complainants in Criminal Case Nos. 03-0123, 03-0127, and 03-
0130, based on the very same evidence that proved appellant’s criminal liability for We are not persuaded. As we had previously discussed herein, private complainants
illegal recruitment. were able to establish, through their positive and credible testimonies, that appellant
acted in conspiracy with his co-accused to mislead private complainants into
It is settled that a person may be charged and convicted separately of illegal believing that appellant and his co-accused, for a fee, can deploy private
recruitment under Republic Act No. 8042, in relation to the Labor Code, and estafa complainants abroad for employment. Decena testified that appellant gave her a
under Article 315, paragraph 2(a)of the Revised Penal Code. As we explained in copy of the purported job order for Korea, while Poserio avowed that appellant
People v. Cortez and Yabut28: encouraged him to apply for work abroad. Daud, appellant’s fellow conspirator,
accepted placement fees from private complainants, even issuing receipts for some;
In this jurisdiction, it is settled that a person who commits illegal recruitment may be instructed private complainants to undergo medical examination; and took private
charged and convicted separately of illegal recruitment under the Labor Code and complainants’ passports. The representations made by appellant and his co-accused
estafa under par. 2(a) of Art. 315 of the Revised Penal Code. The offense of illegal to private complainants were actually false and fraudulent, not only because they
recruitment is malum prohibitum where the criminal intent of the accused is not were not duly authorized to undertake recruitment for overseas employment, but
necessary for conviction, while estafa is malum in se where the criminal intent of the also because there were no actual jobs waiting for private complainants in Korea and
accused is crucial for conviction. Conviction for offenses under the Labor Code does private complainants never had a chance to leave for work abroad.
not bar conviction for offenses punishable by other laws.
Appellant also argues that the second element of estafa, which is prejudice or
Conversely, conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code pecuniary loss, was not established during trial as the prosecution was unable to
does not bar a conviction for illegal recruitment under the Labor Code. It follows that present any receipt signed by appellant proving that he received money from private
one’s acquittal of the crime of estafa will not necessarily result in his acquittal of the complainants.
crime of illegal recruitment in large scale, and vice versa. (Citations omitted.)
We disagree once more with appellant. We reiterate that when conspiracy has been
Article 315, paragraph 2(a) of the Revised Penal Code defines estafa as: established, the act of one conspirator is the act of all. All three private complainants
testified that they paid placement fees to Daud, who issued receipts for some
amounts either in her name or in the name of one "Nimfa Min." Moreover, the
Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the
payment of placement fees to illegal recruiters is not evidenced by receipts alone; it
means mentioned hereinbelow x x x:
can also be established by testimonies of witnesses. In People v. Pabalan, 30 we held:
xxxx
Although not all of the amounts testified to by complainants were covered by
receipts, the fact that there were no receipts for some of the amounts delivered to
2. By means of any of the following false pretenses or fraudulent acts executed prior
him does not mean that appellant did not accept or receive such payments. This
to or simultaneously with the commission of the fraud:
Court has ruled in several cases that the absence of receipts in a criminal case for
illegal recruitment does not warrant the acquittal of the accused and is not fatal to
(a) By using a fictitious name, or falsely pretending to possess power, influence, the case of the prosecution. As long as the witnesses had positively shown through
qualifications, property, credit, agency, business or imaginary transactions; or by their respective testimonies that the accused is the one involved in the prohibited
means of other similar deceits. recruitment, he may be convicted of the offense despite the want of receipts.

The elements of estafa are: (a) that the accused defrauded another by abuse of The Statute of Frauds and the rules of evidence do not require the presentations of
confidence or by means of deceit, and (b) that damage or prejudice capable of receipts in order to prove the existence of a recruitment agreement and the
pecuniary estimation is caused to the offended party or third person. 29
procurement of fees in illegal recruitment cases. The amounts may consequently be years. Any incremental penalty (i.e., one year for every ₱10,000.00 in excess of
proved by the testimony of witnesses. (Citation omitted.) ₱22,000.00) shall thus be added to anywhere from 6 years, 8 months, and 21 days to
8 years, at the discretion of the court, provided that the total penalty does not exceed
Again, there is no cogent reason for us to disturb the finding of the RTC, affirmed by 20 years.32
the Court of Appeals, that both elements of estafa are present in Criminal Case Nos.
03-0123, 03-0127, and 03-0130. Thus, we sustain appellant’s conviction for estafa, In Criminal Case Nos. 03-0123, 03-127, and 03-0130, the maximum term shall be
punishable under Article 315, paragraph 2(a), of the Revised Penal Code. taken from the maximum period of the prescribed penalty, which is 6 years, 8
months, and 21 days to 8 years. The Court of Appeals fixed the maximum term at 8
The penalty for estafa depends on the amount of defraudation.1âwphi1 Per Article years.
315 of the Revised Penal Code:
But then, since private complainants were defrauded in the amounts exceeding
Art. 315. Swindling (estafa). – Any person who shall defraud another by any of the ₱22,000.00, incremental penalty shall be imposed upon appellant, determined as
means mentioned hereinbelow shall be punished by: follows:

1st. The penalty of prision correccional in its maximum period to prision mayor in its 1âwphi1
minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed Difference Quotient
22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this Criminal Case
Amount After After Incremental
paragraph shall be imposed in its maximum period, adding one year for each No. (Private
Defrauded Subtracting Dividing by Penalty33
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed Complainant)
₱22,000.00 ₱10,000.00
twenty years. In such cases, and in connection with the accessory penalties which
may be imposed and for the purpose of the other provisions of this Code, the penalty 03-0123 (De ₱80,000.00 ₱58,000.00 5.8 5 years
shall be termed prision mayor or reclusion temporal, as the case may be[.] Guzman)

The prescribed penalty for estafa under Article 315 of the Revised Penal Code, when 03-0127 (Decena) ₱35,000.00 ₱13,000.00 1.3 1 year
the amount of the fraud is over ₱12,000.00 but not exceeding ₱22,000.00, is prision 03-130 (Poserio) ₱70,000.00 ₱48,000.00 4.8 4 years
correccional maximum to prision mayor minimum (i.e., from 4 years, 2 months, and
1 day to 8 years). Under the Indeterminate Sentence Law, the minimum term shall
be within the range of the penalty next lower to that prescribed by the Revised Penal The incremental penalty shall be added to the maximum term of 8 years fixed by the
Code, or anywhere within prision correccional minimum and medium (i.e., from 6 Court of Appeals. Thus, we agree with the Court of Appeals in imposing the maximum
months and 1 day to 4 years and 2 months).31 Consequently, the minimum terms in penalty in Criminal Case No. 03-0123at thirteen (13) years of reclusion temporal; in
Criminal Case Nos. 03-0123,03-127, and 03-0130 were correctly fixed by the RTC, and Criminal Case No. 03-0127 at nine (9) years of prision mayor; and in Criminal Case
affirmed by the Court of Appeals, at 2 years and 4 months of prision correccional. No. 03-0130 at twelve (12) years of prision mayor.

The maximum term under the Indeterminate Sentence Law shall be that which, in Lastly, it is still incumbent upon appellant to indemnify private complainants for the
view of attending circumstances, could be properly imposed under the rules of the amounts paid to him and his conspirators, with legal interest at the rate of 6% per
Revised Penal Code. To compute the minimum, medium, and maximum periods of annum, from the time of demand, which, in this case, shall be deemed as the same
the prescribed penalty for estafa when the amount of fraud exceeds ₱12,000.00, the day the Informations were filed against appellant, until the said amounts are fully
time included in prision correccional maximum to prision mayor minimum shall be paid.34
divided into three equal portions, with each portion forming a period. Following this
computation, the minimum period for prision correccional maximum to prision WHEREFORE, we AFFIRM with MODIFICATIONS the Decision dated March 18, 2011
mayor minimum is from 4 years, 2 months, and 1 day to 5 years, 5 months, and 10 of the Court of Appeals in CA-G.R. CR.-H.C. No. 03168, to read as follows:
days; the medium period is from 5 years, 5 months, and 11 days to 6 years, 8 months,
and 20 days; and the maximum period is from 6 years, 8 months, and 21 days to 8
1. In Criminal Case No. 03-0122, appellant Roderick T. Gallemit is found G.R. No. 180016 April 29, 2014
GUILTY beyond reasonable doubt of illegal recruitment in large scale,
constituting economic sabotage, as defined and penalized in Section 6, in LITO CORPUZ, Petitioner,
relation to Section 7(b), of Republic Act No. 8042, for which he is sentenced vs.
to suffer the penalty of life imprisonment and is ordered to pay a fine of Five PEOPLE OF THE PHILIPPINES, Respondent.
Hundred Thousand Pesos (₱500.000.00);
DECISION
2. In Criminal Case No. 03-0123, appellant Roderick T. Gallemit is found
GUILTY beyond reasonable doubt of the crime of estafa, as defined and PERALTA, J.:
penalized in Article 315, paragraph 2(a) of the Revised Penal Code, for which
he is sentenced to a prison term of two (2) years and four (4) months of
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of
prision correccional, as minimum, to thirteen years (13) of reclusion
Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to
temporal, as maximum, and ordered to indemnify private complainant
reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated
Marcelo I. De Guzman in the amount of Eighty Thousand Pesos (₱80,000.00)
September 5, 2007 of the Court of Appeals (CA), which affirmed with modification
as actual damages, with legal interest of six percent (6%) per annum from
the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San
January 3, 2003, until the said amount is fully paid;
Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of
Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.
3. In Criminal Case No. 03-0127, appellant Roderick T. Gallemit is found
GUILTY beyond reasonable doubt of the crime of estafa, as defined and
The antecedent facts follow.
penalized in Article 315, paragraph 2(a) of the Revised Penal C ode, for which
he is sentenced to a prison term of two (2) years and four
Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino
in Olongapo City sometime in 1990. Private complainant was then engaged in the
(4) months of prision correccional, as minimum, to nine (9) years of prision
business of lending money to casino players and, upon hearing that the former had
mayor, as maximum, ordered to indemnify private complainant Gina T.
some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the
Decena in the amount of Thirty-Five Thousand Pesos (₱35,000.00) as actual
same casino and offered to sell the said pieces of jewelry on commission basis.
damages, with legal interest of six percent (6%) per annum from January 3,
Private complainant agreed, and as a consequence, he turned over to petitioner the
2003, until the said amount is fully paid; and
following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of ₱98,000.00, as
4. In Criminal Case No. 03-0130, appellant Roderick T. Gallemit is found evidenced by a receipt of even date. They both agreed that petitioner shall remit the
GUILTY beyond reasonable doubt of the crime of estafa, as defined and proceeds of the sale, and/or, if unsold, to return the same items, within a period of
penalized in Article 315, paragraph 2(a) of the Revised Penal Code, for which 60 days. The period expired without petitioner remitting the proceeds of the sale or
he is sentenced to a prison term of two (2) years and four (4) months of returning the pieces of jewelry. When private complainant was able to meet
prision correccional, as minimum, to twelve (12) years of prision mayor, as petitioner, the latter promised the former that he will pay the value of the said items
maximum, and ordered to indemnify private complainant Francisco S. entrusted to him, but to no avail.
Poserio in the amount of Seventy Thousand Pesos (₱70,000.00) as actual
damages, with legal interest of six percent (6%) per annum from January 3,
Thus, an Information was filed against petitioner for the crime of estafa, which reads
2003, until the said amount is fully paid.
as follows:

SO ORDERED.
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, after
having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
₱45,000.00; one (1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1) two-
baht ladies' bracelet, 22k, worth ₱12,000.00, or in the total amount of Ninety-Eight
Thousand Pesos (₱98,000.00), Philippine currency, under expressed obligation on the FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium period
part of said accused to remit the proceeds of the sale of the said items or to return AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
the same, if not sold, said accused, once in possession of the said items, with intent Temporal in its minimum period AS MAXIMUM; to indemnify private complainant
to defraud, and with unfaithfulness and abuse of confidence, and far from complying Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the costs of
with his aforestated obligation, did then and there wilfully, unlawfully and feloniously suit.
misappropriate, misapply and convert to his own personal use and benefit the
aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated SO ORDERED.
demands, the accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the The case was elevated to the CA, however, the latter denied the appeal of petitioner
damage and prejudice of said Danilo Tangcoy in the aforementioned amount. and affirmed the decision of the RTC, thus:

CONTRARY TO LAW. WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30,
2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of MODIFICATION on the imposable prison term, such that accused-appellant shall
not guilty. Thereafter, trial on the merits ensued. suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as
minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional
The prosecution, to prove the above-stated facts, presented the lone testimony of ₱10,000.00, or a total of 7 years. The rest of the decision stands.
Danilo Tangcoy. On the other hand, the defense presented the lone testimony of
petitioner, which can be summarized, as follows: SO ORDERED.

Petitioner and private complainant were collecting agents of Antonio Balajadia, who Petitioner, after the CA denied his motion for reconsideration, filed with this Court
is engaged in the financing business of extending loans to Base employees. For every the present petition stating the following grounds:
collection made, they earn a commission. Petitioner denied having transacted any
business with private complainant. A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION
AND APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING
However, he admitted obtaining a loan from Balajadia sometime in 1989 for which ITS EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST
he was made to sign a blank receipt. He claimed that the same receipt was then dated EVIDENCE RULE;
May 2, 1991 and used as evidence against him for the supposed agreement to sell
the subject pieces of jewelry, which he did not even see. B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S
FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY
After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE
charged in the Information. The dispositive portion of the decision states: 315 (1) (B) OF THE REVISED PENAL CODE IN THAT -

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the 1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT
felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised [PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY
Penal Code; TO BE REMITTED, IF SOLD;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s 2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE
to vary the penalty imposable; INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE
ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY
accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of 1991;
liberty consisting of an imprisonment under the Indeterminate Sentence Law of
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S submarkings, although the same was merely a photocopy, thus, violating the best
FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, evidence rule. However, the records show that petitioner never objected to the
OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED; admissibility of the said evidence at the time it was identified, marked and testified
upon in court by private complainant. The CA also correctly pointed out that
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S petitioner also failed to raise an objection in his Comment to the prosecution's formal
FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE offer of evidence and even admitted having signed the said receipt. The established
DOUBT ALTHOUGH - doctrine is that when a party failed to interpose a timely objection to evidence at the
time they were offered in evidence, such objection shall be considered as waived. 5
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE
INCIDENT; Another procedural issue raised is, as claimed by petitioner, the formally defective
Information filed against him. He contends that the Information does not contain the
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE period when the pieces of jewelry were supposed to be returned and that the date
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN when the crime occurred was different from the one testified to by private
EXPERIENCE; complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the
matters of form and substance in the Information cannot be made for the first time
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS
on appeal. It is true that the gravamen of the crime of estafa under Article 315,
CASE;
paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of
money or property received to the prejudice of the owner 6 and that the time of
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.
occurrence is not a material ingredient of the crime, hence, the exclusion of the
period and the wrong date of the occurrence of the crime, as reflected in the
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated Information, do not make the latter fatally defective. The CA ruled:
the following counter-arguments:
x x x An information is legally viable as long as it distinctly states the statutory
The exhibits were properly admitted inasmuch as petitioner failed to object to their designation of the offense and the acts or omissions constitutive thereof. Then
admissibility. Section 6, Rule 110 of the Rules of Court provides that a complaint or information is
sufficient if it states the name of the accused;
The information was not defective inasmuch as it sufficiently established the
designation of the offense and the acts complained of. the designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of
The prosecution sufficiently established all the elements of the crime charged. the commission of the offense, and the place wherein the offense was committed. In
the case at bar, a reading of the subject Information shows compliance with the
This Court finds the present petition devoid of any merit. foregoing rule. That the time of the commission of the offense was stated as " on or
about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause
The factual findings of the appellate court generally are conclusive, and carry even considering that Section 11 of the same Rule requires a statement of the precise time
more weight when said court affirms the findings of the trial court, absent any only when the same is a material ingredient of the offense. The gravamen of the
showing that the findings are totally devoid of support in the records, or that they crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is
are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of the appropriation or conversion of money or property received to the prejudice of
the opinion that the CA erred in affirming the factual findings of the trial court. He the offender. Thus, aside from the fact that the date of the commission thereof is not
now comes to this Court raising both procedural and substantive issues. an essential element of the crime herein charged, the failure of the prosecution to
specify the exact date does not render the Information ipso facto defective.
According to petitioner, the CA erred in affirming the ruling of the trial court, Moreover, the said date is also near the due date within which accused-appellant
admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its should have delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with the rules. q For whom?
Accused-appellant, therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him.7 a Lito Corpuz, sir.

It must be remembered that petitioner was convicted of the crime of Estafa under q Were you able to look (sic) for him?
Article 315, paragraph 1 (b) of the RPC, which reads:
a I looked for him for a week, sir.
ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the
means mentioned hereinbelow. q Did you know his residence?

1. With unfaithfulness or abuse of confidence, namely: a Yes, sir.

xxxx q Did you go there?

(b) By misappropriating or converting, to the prejudice of another, money, goods, or a Yes, sir.
any other personal property received by the offender in trust or on commission, or
for administration, or under any other obligation involving the duty to make delivery
q Did you find him?
of or to return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money, goods, or other
property; x x x a No, sir.

q Were you able to talk to him since 5 July 1991?


The elements of estafa with abuse of confidence are as follows: (a) that money, goods
or other personal property is received by the offender in trust, or on commission, or
for administration, or under any other obligation involving the duty to make delivery a I talked to him, sir.
of, or to return the same; (b) that there be misappropriation or conversion of such
money or property by the offender or denial on his part of such receipt; (c) that such q How many times?
misappropriation or conversion or denial is to the prejudice of another; and (d) that
there is a demand made by the offended party on the offender. 8 a Two times, sir.

Petitioner argues that the last element, which is, that there is a demand by the q What did you talk (sic) to him?
offended party on the offender, was not proved. This Court disagrees. In his
testimony, private complainant narrated how he was able to locate petitioner after a About the items I gave to (sic) him, sir.
almost two (2) months from the time he gave the pieces of jewelry and asked
petitioner about the same items with the latter promising to pay them. Thus: q Referring to Exhibit A-2?

PROS. MARTINEZ a Yes, sir, and according to him he will take his obligation and I asked him where the
items are and he promised me that he will pay these amount, sir.
q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could
have been finished on 5 July 1991, the question is what happens (sic) when the q Up to this time that you were here, were you able to collect from him partially or
deadline came? full?

a I went looking for him, sir. a No, sir.9


No specific type of proof is required to show that there was demand.10 Demand need their testimonies, for in determining the value and credibility of evidence, the
not even be formal; it may be verbal.11 The specific word "demand" need not even witnesses are to be weighed not numbered.17
be used to show that it has indeed been made upon the person charged, since even
a mere query as to the whereabouts of the money [in this case, property], would be As regards the penalty, while this Court's Third Division was deliberating on this case,
tantamount to a demand.12 As expounded in Asejo v. People:13 the question of the continued validity of imposing on persons convicted of crimes
involving property came up. The legislature apparently pegged these penalties to the
With regard to the necessity of demand, we agree with the CA that demand under value of the money and property in 1930 when it enacted the Revised Penal Code.
this kind of estafa need not be formal or written. The appellate court observed that Since the members of the division reached no unanimity on this question and since
the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus: the issues are of first impression, they decided to refer the case to the Court en banc
for consideration and resolution. Thus, several amici curiae were invited at the
When the law does not qualify, We should not qualify. Should a written demand be behest of the Court to give their academic opinions on the matter. Among those that
necessary, the law would have stated so. Otherwise, the word "demand" should be graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria,
interpreted in its general meaning as to include both written and oral demand. Thus, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of
the failure of the prosecution to present a written demand as evidence is not fatal. Representatives. The parties were later heard on oral arguments before the Court en
banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.
In Tubb v. People, where the complainant merely verbally inquired about the money
entrusted to the accused, we held that the query was tantamount to a demand, thus: After a thorough consideration of the arguments presented on the matter, this Court
finds the following:
x x x [T]he law does not require a demand as a condition precedent to the existence
of the crime of embezzlement. It so happens only that failure to account, upon There seems to be a perceived injustice brought about by the range of penalties that
demand for funds or property held in trust, is circumstantial evidence of the courts continue to impose on crimes against property committed today, based
misappropriation. The same way, however, be established by other proof, such as on the amount of damage measured by the value of money eighty years ago in 1932.
that introduced in the case at bar.14 However, this Court cannot modify the said range of penalties because that would
constitute judicial legislation. What the legislature's perceived failure in amending
In view of the foregoing and based on the records, the prosecution was able to prove the penalties provided for in the said crimes cannot be remedied through this Court's
the existence of all the elements of the crime. Private complainant gave petitioner decisions, as that would be encroaching upon the power of another branch of the
the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated government. This, however, does not render the whole situation without any
May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if remedy. It can be appropriately presumed that the framers of the Revised Penal Code
unsold. There was misappropriation when petitioner failed to remit the proceeds of (RPC) had anticipated this matter by including Article 5, which reads:
those pieces of jewelry sold, or if no sale took place, failed to return the same pieces
of jewelry within or after the agreed period despite demand from the private ART. 5. Duty of the court in connection with acts which should be repressed but which
complainant, to the prejudice of the latter. are not covered by the law, and in cases of excessive penalties. - Whenever a court
has knowledge of any act which it may deem proper to repress and which is not
Anent the credibility of the prosecution's sole witness, which is questioned by punishable by law, it shall render the proper decision, and shall report to the Chief
petitioner, the same is unmeritorious. Settled is the rule that in assessing the Executive, through the Department of Justice, the reasons which induce the court to
credibility of witnesses, this Court gives great respect to the evaluation of the trial believe that said act should be made the subject of penal legislation.
court for it had the unique opportunity to observe the demeanor of witnesses and
their deportment on the witness stand, an opportunity denied the appellate courts, In the same way, the court shall submit to the Chief Executive, through the
which merely rely on the records of the case.15 The assessment by the trial court is Department of Justice, such statement as may be deemed proper, without
even conclusive and binding if not tainted with arbitrariness or oversight of some fact suspending the execution of the sentence, when a strict enforcement of the
or circumstance of weight and influence, especially when such finding is affirmed by provisions of this Code would result in the imposition of a clearly excessive penalty,
the CA.16 Truth is established not by the number of witnesses, but by the quality of taking into consideration the degree of malice and the injury caused by the offense.18
The first paragraph of the above provision clearly states that for acts bourne out of a fairly differ; but it is the duty of the courts to enforce the will of the legislator in all
case which is not punishable by law and the court finds it proper to repress, the cases unless it clearly appears that a given penalty falls within the prohibited class of
remedy is to render the proper decision and thereafter, report to the Chief Executive, excessive fines or cruel and unusual punishment." A petition for clemency should be
through the Department of Justice, the reasons why the same act should be the addressed to the Chief Executive.22
subject of penal legislation. The premise here is that a deplorable act is present but
is not the subject of any penal legislation, thus, the court is tasked to inform the Chief There is an opinion that the penalties provided for in crimes against property be
Executive of the need to make that act punishable by law through legislation. The based on the current inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 .
second paragraph is similar to the first except for the situation wherein the act is However, it would be dangerous as this would result in uncertainties, as opposed to
already punishable by law but the corresponding penalty is deemed by the court as the definite imposition of the penalties. It must be remembered that the economy
excessive. The remedy therefore, as in the first paragraph is not to suspend the fluctuates and if the proposed imposition of the penalties in crimes against property
execution of the sentence but to submit to the Chief Executive the reasons why the be adopted, the penalties will not cease to change, thus, making the RPC, a self-
court considers the said penalty to be non-commensurate with the act committed. amending law. Had the framers of the RPC intended that to be so, it should have
Again, the court is tasked to inform the Chief Executive, this time, of the need for a provided the same, instead, it included the earlier cited Article 5 as a remedy. It is
legislation to provide the proper penalty. also improper to presume why the present legislature has not made any moves to
amend the subject penalties in order to conform with the present times. For all we
In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined know, the legislature intends to retain the same penalties in order to deter the
that in Article 5, the duty of the court is merely to report to the Chief Executive, with further commission of those punishable acts which have increased tremendously
a recommendation for an amendment or modification of the legal provisions which through the years. In fact, in recent moves of the legislature, it is apparent that it
it believes to be harsh. Thus: aims to broaden the coverage of those who violate penal laws. In the crime of
Plunder, from its original minimum amount of ₱100,000,000.00 plundered, the
This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," legislature lowered it to ₱50,000,000.00. In the same way, the legislature lowered
that is, that there can exist no punishable act except those previously and specifically the threshold amount upon which the Anti-Money Laundering Act may apply, from
provided for by penal statute. ₱1,000,000.00 to ₱500,000.00.

No matter how reprehensible an act is, if the law-making body does not deem it It is also worth noting that in the crimes of Theft and Estafa, the present penalties do
necessary to prohibit its perpetration with penal sanction, the Court of justice will be not seem to be excessive compared to the proposed imposition of their
entirely powerless to punish such act. corresponding penalties. In Theft, the provisions state that:

Under the provisions of this article the Court cannot suspend the execution of a Art. 309. Penalties. — Any person guilty of theft shall be punished by:
sentence on the ground that the strict enforcement of the provisions of this Code
would cause excessive or harsh penalty. All that the Court could do in such 1. The penalty of prision mayor in its minimum and medium periods, if the
eventuality is to report the matter to the Chief Executive with a recommendation for value of the thing stolen is more than 12,000 pesos but does not exceed
an amendment or modification of the legal provisions which it believes to be harsh.20 22,000 pesos, but if the value of the thing stolen exceeds the latter amount
the penalty shall be the maximum period of the one prescribed in this
Anent the non-suspension of the execution of the sentence, retired Chief Justice paragraph, and one year for each additional ten thousand pesos, but the
Ramon C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their total of the penalty which may be imposed shall not exceed twenty years. In
book, The Revised Penal Code,21 echoed the above-cited commentary, thus: such cases, and in connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this Code, the
The second paragraph of Art. 5 is an application of the humanitarian principle that penalty shall be termed prision mayor or reclusion temporal, as the case
justice must be tempered with mercy. Generally, the courts have nothing to do with may be.
the wisdom or justness of the penalties fixed by law. "Whether or not the penalties
prescribed by law upon conviction of violations of particular statutes are too severe
or are not severe enough, are questions as to which commentators on the law may
2. The penalty of prision correccional in its medium and maximum periods, period under the existing law. Thus, it would seem that the present penalty imposed
if the value of the thing stolen is more than 6,000 pesos but does not exceed under the law is not at all excessive. The same is also true in the crime of Estafa.23
12,000 pesos.
Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen
3. The penalty of prision correccional in its minimum and medium periods, in the crime of Theft and the damage caused in the crime of Estafa, the gap between
if the value of the property stolen is more than 200 pesos but does not the minimum and the maximum amounts, which is the basis of determining the
exceed 6,000 pesos. proper penalty to be imposed, would be too wide and the penalty imposable would
no longer be commensurate to the act committed and the value of the thing stolen
4. Arresto mayor in its medium period to prision correccional in its minimum or the damage caused:
period, if the value of the property stolen is over 50 pesos but does not
exceed 200 pesos. I. Article 309, or the penalties for the crime of Theft, the value would be modified but
the penalties are not changed:
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not
exceed 50 pesos. 1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00,
punished by prision mayor minimum to prision mayor medium (6 years and
6. Arresto mayor in its minimum and medium periods, if such value does not 1 day to 10 years).
exceed 5 pesos.
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00,
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed punished by prision correccional medium and to prision correccional
under the circumstances enumerated in paragraph 3 of the next preceding maximum (2 years, 4 months and 1 day to 6 years).24
article and the value of the thing stolen does not exceed 5 pesos. If such
value exceeds said amount, the provision of any of the five preceding 3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable
subdivisions shall be made applicable. by prision correccional minimum to prision correccional medium (6 months
and 1 day to 4 years and 2 months).
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos,
when the value of the thing stolen is not over 5 pesos, and the offender shall 4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by
have acted under the impulse of hunger, poverty, or the difficulty of earning arresto mayor medium to prision correccional minimum (2 months and 1
a livelihood for the support of himself or his family. day to 2 years and 4 months).

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision 5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto
states that the penalty is prision correccional in its minimum and medium periods (6 mayor (1 month and 1 day to 6 months).
months and 1 day to 4 years and 2 months). Applying the proposal, if the value of the
thing stolen is ₱6,000.00, the penalty is imprisonment of arresto mayor in its medium 6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to
period to prision correccional minimum period (2 months and 1 day to 2 years and 4 arresto mayor medium.
months). It would seem that under the present law, the penalty imposed is almost
the same as the penalty proposed. In fact, after the application of the Indeterminate x x x x.
Sentence Law under the existing law, the minimum penalty is still lowered by one
degree; hence, the minimum penalty is arresto mayor in its medium period to
II. Article 315, or the penalties for the crime of Estafa, the value would also be
maximum period (2 months and 1 day to 6 months), making the offender qualified
modified but the penalties are not changed, as follows:
for pardon or parole after serving the said minimum period and may even apply for
probation. Moreover, under the proposal, the minimum penalty after applying the
Indeterminate Sentence Law is arresto menor in its maximum period to arresto
mayor in its minimum period (21 days to 2 months) is not too far from the minimum
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to Assuming that the Court submits to the argument of Dean Diokno and declares the
₱2,200,000.00, punishable by prision correccional maximum to prision incremental penalty in Article 315 unconstitutional for violating the equal protection
mayor minimum (4 years, 2 months and 1 day to 8 years).25 clause, what then is the penalty that should be applied in case the amount of the
thing subject matter of the crime exceeds ₱22,000.00? It seems that the proposition
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, poses more questions than answers, which leads us even more to conclude that the
punishable by prision correccional minimum to prision correccional medium appropriate remedy is to refer these matters to Congress for them to exercise their
(6 months and 1 day to 4 years and 2 months).26 inherent power to legislate laws.

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, Even Dean Diokno was of the opinion that if the Court declares the IPR
punishable by arresto mayor maximum to prision correccional minimum (4 unconstitutional, the remedy is to go to Congress. Thus:
months and 1 day to 2 years and 4 months).
xxxx
4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor
maximum (4 months and 1 day to 6 months). JUSTICE PERALTA:

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici Now, your position is to declare that the incremental penalty should be struck down
curiae, is that the incremental penalty provided under Article 315 of the RPC violates as unconstitutional because it is absurd.
the Equal Protection Clause.
DEAN DIOKNO:
The equal protection clause requires equality among equals, which is determined
according to a valid classification. The test developed by jurisprudence here and Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.
yonder is that of reasonableness,27 which has four requisites:
JUSTICE PERALTA:
(1) The classification rests on substantial distinctions;
Then what will be the penalty that we are going to impose if the amount is more than
(2) It is germane to the purposes of the law; Twenty-Two Thousand (₱22,000.00) Pesos.

(3) It is not limited to existing conditions only; and DEAN DIOKNO:

(4) It applies equally to all members of the same class. 28 Well, that would be for Congress to ... if this Court will declare the incremental
penalty rule unconstitutional, then that would ... the void should be filled by
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on Congress.
substantial distinctions as ₱10,000.00 may have been substantial in the past, but it is
not so today, which violates the first requisite; the IPR was devised so that those who JUSTICE PERALTA:
commit estafa involving higher amounts would receive heavier penalties; however,
this is no longer achieved, because a person who steals ₱142,000.00 would receive But in your presentation, you were fixing the amount at One Hundred Thousand
the same penalty as someone who steals hundreds of millions, which violates the (₱100,000.00) Pesos ...
second requisite; and, the IPR violates requisite no. 3, considering that the IPR is
limited to existing conditions at the time the law was promulgated, conditions that
DEAN DIOKNO:
no longer exist today.
Well, my presen ... (interrupted)
JUSTICE PERALTA: No, Your Honor.

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two JUSTICE PERALTA:
Thousand (₱22,000.00) Pesos you were suggesting an additional penalty of one (1)
year, did I get you right? The Court cannot do that.

DEAN DIOKNO: DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation. Could not be.

JUSTICE PERALTA: JUSTICE PERALTA:

Ah ... The only remedy is to go to Congress...

DEAN DIOKNO: DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law... Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

But if we de ... (interrupted) ... and determine the value or the amount.

DEAN DIOKNO: DEAN DIOKNO:

....then.... Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-
cannot fix the amount ... Two Thousand (₱22,000.00) Pesos.

DEAN DIOKNO: DEAN DIOKNO:

No, Your Honor. Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
Thousand (₱22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
DEAN DIOKNO: Art. 217. Malversation of public funds or property; Presumption of malversation. —
Any public officer who, by reason of the duties of his office, is accountable for public
Thank you. funds or property, shall appropriate the same or shall take or misappropriate or shall
consent, through abandonment or negligence, shall permit any other person to take
x x x x29 such public funds, or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:
Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes
cruel and unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the 1. The penalty of prision correccional in its medium and maximum periods,
United States Federal Supreme Court has expanded the application of a similar if the amount involved in the misappropriation or malversation does not
Constitutional provision prohibiting cruel and unusual punishment, to the duration exceed two hundred pesos.
of the penalty, and not just its form. The court therein ruled that three things must
be done to decide whether a sentence is proportional to a specific crime, viz.; (1) 2. The penalty of prision mayor in its minimum and medium periods, if the
Compare the nature and gravity of the offense, and the harshness of the penalty; (2) amount involved is more than two hundred pesos but does not exceed six
Compare the sentences imposed on other criminals in the same jurisdiction, i.e., thousand pesos.
whether more serious crimes are subject to the same penalty or to less serious
penalties; and (3) Compare the sentences imposed for commission of the same crime 3. The penalty of prision mayor in its maximum period to reclusion temporal
in other jurisdictions. in its minimum period, if the amount involved is more than six thousand
pesos but is less than twelve thousand pesos.
However, the case of Solem v. Helm cannot be applied in the present case, because
in Solem what respondent therein deemed cruel was the penalty imposed by the 4. The penalty of reclusion temporal, in its medium and maximum periods,
state court of South Dakota after it took into account the latter’s recidivist statute if the amount involved is more than twelve thousand pesos but is less than
and not the original penalty for uttering a "no account" check. Normally, the twenty-two thousand pesos. If the amount exceeds the latter, the penalty
maximum punishment for the crime would have been five years imprisonment and a shall be reclusion temporal in its maximum period to reclusion perpetua.
$5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment
without the possibility of parole under South Dakota’s recidivist statute because of In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
his six prior felony convictions. Surely, the factual antecedents of Solem are different special disqualification and a fine equal to the amount of the funds malversed or
from the present controversy. equal to the total value of the property embezzled.

With respect to the crime of Qualified Theft, however, it is true that the imposable The failure of a public officer to have duly forthcoming any public funds or property
penalty for the offense is high. Nevertheless, the rationale for the imposition of a with which he is chargeable, upon demand by any duly authorized officer, shall be
higher penalty against a domestic servant is the fact that in the commission of the prima facie evidence that he has put such missing funds or property to personal use.
crime, the helper will essentially gravely abuse the trust and confidence reposed
upon her by her employer. After accepting and allowing the helper to be a member The above-provisions contemplate a situation wherein the Government loses money
of the household, thus entrusting upon such person the protection and safekeeping due to the unlawful acts of the offender. Thus, following the proposal, if the amount
of the employer’s loved ones and properties, a subsequent betrayal of that trust is so malversed is ₱200.00 (under the existing law), the amount now becomes ₱20,000.00
repulsive as to warrant the necessity of imposing a higher penalty to deter the and the penalty is prision correccional in its medium and maximum periods (2 years
commission of such wrongful acts. 4 months and 1 day to 6 years). The penalty may not be commensurate to the act of
embezzlement of ₱20,000.00 compared to the acts committed by public officials
There are other crimes where the penalty of fine and/or imprisonment are punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt
dependent on the subject matter of the crime and which, by adopting the proposal, Practices Act, specifically Section 3,31 wherein the injury caused to the government is
may create serious implications. For example, in the crime of Malversation, the not generally defined by any monetary amount, the penalty (6 years and 1 month to
penalty imposed depends on the amount of the money malversed by the public 15 years)32 under the Anti-Graft Law will now become higher. This should not be the
official, thus:
case, because in the crime of malversation, the public official takes advantage of his property of the National Library and National Museum), Article 312 (Occupation of
public position to embezzle the fund or property of the government entrusted to him. real property or usurpation of real rights in property), Article 313 (Altering
boundaries or landmarks), Article 316 (Other forms of swindling), Article 317
The said inequity is also apparent in the crime of Robbery with force upon things (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious
(inhabited or uninhabited) where the value of the thing unlawfully taken and the act mischief) and Article 331 (Destroying or damaging statues, public monuments or
of unlawful entry are the bases of the penalty imposable, and also, in Malicious paintings). Other crimes that impose Fine as a penalty will also be affected, such as:
Mischief, where the penalty of imprisonment or fine is dependent on the cost of the Article 213 (Frauds against the public treasury and similar offenses), Article 215
damage caused. (Prohibited Transactions),

In Robbery with force upon things (inhabited or uninhabited), if we increase the value Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure
of the thing unlawfully taken, as proposed in the ponencia, the sole basis of the of accountable officer to render accounts), Article 219 (Failure of a responsible public
penalty will now be the value of the thing unlawfully taken and no longer the element officer to render accounts before leaving the country).
of force employed in entering the premises. It may likewise cause an inequity
between the crime of Qualified Trespass to Dwelling under Article 280, and this kind In addition, the proposal will not only affect crimes under the RPC. It will also affect
of robbery because the former is punishable by prision correccional in its medium crimes which are punishable by special penal laws, such as Illegal Logging or Violation
and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not of Section 68 of Presidential Decree No. 705, as amended. 34The law treats cutting,
exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where entrance to the gathering, collecting and possessing timber or other forest products without license
premises is with violence or intimidation, which is the main justification of the as an offense as grave as and equivalent to the felony of qualified theft. 35 Under the
penalty. Whereas in the crime of Robbery with force upon things, it is punished with law, the offender shall be punished with the penalties imposed under Articles 309
a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed and 31036 of the Revised Penal Code, which means that the penalty imposable for the
without the penalty of Fine despite the fact that it is not merely the illegal entry that offense is, again, based on the value of the timber or forest products involved in the
is the basis of the penalty but likewise the unlawful taking. offense. Now, if we accept the said proposal in the crime of Theft, will this particular
crime of Illegal Logging be amended also in so far as the penalty is concerned because
Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the
that can be imposed is arresto mayor in its medium and maximum periods (2 months negative because the soundness of this particular law is not in question.
and 1 day to 6 months) if the value of the damage caused exceeds ₱1,000.00, but
under the proposal, the value of the damage will now become ₱100,000.00 (1:100), With the numerous crimes defined and penalized under the Revised Penal Code and
and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the Special Laws, and other related provisions of these laws affected by the proposal, a
value of the damaged property does not exceed ₱200.00, the penalty is arresto thorough study is needed to determine its effectivity and necessity. There may be
menor or a fine of not less than the value of the damage caused and not more than some provisions of the law that should be amended; nevertheless, this Court is in no
₱200.00, if the amount involved does not exceed ₱200.00 or cannot be estimated. position to conclude as to the intentions of the framers of the Revised Penal Code by
Under the proposal, ₱200.00 will now become ₱20,000.00, which simply means that merely making a study of the applicability of the penalties imposable in the present
the fine of ₱200.00 under the existing law will now become ₱20,000.00. The amount times. Such is not within the competence of the Court but of the Legislature which is
of Fine under this situation will now become excessive and afflictive in nature despite empowered to conduct public hearings on the matter, consult legal luminaries and
the fact that the offense is categorized as a light felony penalized with a light penalty who, after due proceedings, can decide whether or not to amend or to revise the
under Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will questioned law or other laws, or even create a new legislation which will adopt to
be grave implications on the penalty of Fine, but changing the same through Court the times.
decision, either expressly or impliedly, may not be legally and constitutionally
feasible. Admittedly, Congress is aware that there is an urgent need to amend the Revised
Penal Code. During the oral arguments, counsel for the Senate informed the Court
There are other crimes against property and swindling in the RPC that may also be that at present, fifty-six (56) bills are now pending in the Senate seeking to amend
affected by the proposal, such as those that impose imprisonment and/or Fine as a the Revised Penal Code,37 each one proposing much needed change and updates to
penalty based on the value of the damage caused, to wit: Article 311 (Theft of the
archaic laws that were promulgated decades ago when the political, socio-economic, the victim a sum of money as restitution. Clearly, this award of civil indemnity due to
and cultural settings were far different from today’s conditions. the death of the victim could not be contemplated as akin to the value of a thing that
is unlawfully taken which is the basis in the imposition of the proper penalty in certain
Verily, the primordial duty of the Court is merely to apply the law in such a way that crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some
it shall not usurp legislative powers by judicial legislation and that in the course of offense cannot be the same reasoning that would sustain the adoption of the
such application or construction, it should not make or supervise legislation, or under suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a
the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did not
law, or give the law a construction which is repugnant to its terms.38 The Court should provide for a ceiling. Thus, although the minimum amount for the award cannot be
apply the law in a manner that would give effect to their letter and spirit, especially changed, increasing the amount awarded as civil indemnity can be validly modified
when the law is clear as to its intent and purpose. Succinctly put, the Court should and increased when the present circumstance warrants it. Corollarily, moral damages
shy away from encroaching upon the primary function of a co-equal branch of the under Article 222039 of the Civil Code also does not fix the amount of damages that
Government; otherwise, this would lead to an inexcusable breach of the doctrine of can be awarded. It is discretionary upon the court, depending on the mental anguish
separation of powers by means of judicial legislation. or the suffering of the private offended party. The amount of moral damages can, in
relation to civil indemnity, be adjusted so long as it does not exceed the award of civil
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; indemnity.
hence, it can be increased by the Court when appropriate. Article 2206 of the Civil
Code provides: In addition, some may view the penalty provided by law for the offense committed
as tantamount to cruel punishment. However, all penalties are generally harsh, being
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall punitive in nature. Whether or not they are excessive or amount to cruel punishment
be at least three thousand pesos, even though there may have been mitigating is a matter that should be left to lawmakers. It is the prerogative of the courts to
circumstances. In addition: apply the law, especially when they are clear and not subject to any other
interpretation than that which is plainly written.
(1) The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is
indemnity shall in every case be assessed and awarded by the court, unless that the incremental penalty provision should be declared unconstitutional and that
the deceased on account of permanent physical disability not caused by the the courts should only impose the penalty corresponding to the amount of
defendant, had no earning capacity at the time of his death; ₱22,000.00, regardless if the actual amount involved exceeds ₱22,000.00. As
suggested, however, from now until the law is properly amended by Congress, all
crimes of Estafa will no longer be punished by the appropriate penalty. A conundrum
(2) If the deceased was obliged to give support according to the provisions
in the regular course of criminal justice would occur when every accused convicted
of Article 291, the recipient who is not an heir called to the decedent's
of the crime of estafa will be meted penalties different from the proper penalty that
inheritance by the law of testate or intestate succession, may demand
should be imposed. Such drastic twist in the application of the law has no legal basis
support from the person causing the death, for a period not exceeding five
and directly runs counter to what the law provides.
years, the exact duration to be fixed by the court;

It should be noted that the death penalty was reintroduced in the dispensation of
(3) The spouse, legitimate and illegitimate descendants and ascendants of
criminal justice by the Ramos Administration by virtue of Republic Act No. 7659 40 in
the deceased may demand moral damages for mental anguish by reason of
December 1993. The said law has been questioned before this Court. There is,
the death of the deceased.
arguably, no punishment more cruel than that of death. Yet still, from the time the
death penalty was re-imposed until its lifting in June 2006 by Republic Act No.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind of
9346,41 the Court did not impede the imposition of the death penalty on the ground
monetary restitution or compensation to the victim for the damage or infraction that
that it is a "cruel punishment" within the purview of Section 19 (1),42 Article III of the
was done to the latter by the accused, which in a sense only covers the civil aspect.
Constitution. Ultimately, it was through an act of Congress suspending the imposition
Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender, the accused is also ordered to pay
of the death penalty that led to its non-imposition and not via the intervention of the JUSTICE PERALTA:
Court.
Yeah, Just one question. You are suggesting that in order to determine the value of
Even if the imposable penalty amounts to cruel punishment, the Court cannot declare Peso you have to take into consideration several factors.
the provision of the law from which the proper penalty emanates unconstitutional in
the present action. Not only is it violative of due process, considering that the State PROFESSOR TADIAR:
and the concerned parties were not given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a statute cannot be attacked Yes.
collaterally because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never touched
JUSTICE PERALTA:
upon the constitutionality of any of the provisions of the Revised Penal Code.
Per capita income.
Besides, it has long been held that the prohibition of cruel and unusual punishments
is generally aimed at the form or character of the punishment rather than its severity
PROFESSOR TADIAR:
in respect of duration or amount, and applies to punishments which public sentiment
has regarded as cruel or obsolete, for instance, those inflicted at the whipping post,
or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the Per capita income.
like. Fine and imprisonment would not thus be within the prohibition. 44
JUSTICE PERALTA:
It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. The fact that the punishment authorized Consumer price index.
by the statute is severe does not make it cruel and unusual. Expressed in other terms,
it has been held that to come under the ban, the punishment must be "flagrantly and PROFESSOR TADIAR:
plainly oppressive," "wholly disproportionate to the nature of the offense as to shock
the moral sense of the community."45 Yeah.

Cruel as it may be, as discussed above, it is for the Congress to amend the law and JUSTICE PERALTA:
adapt it to our modern time.
Inflation ...
The solution to the present controversy could not be solved by merely adjusting the
questioned monetary values to the present value of money based only on the current PROFESSOR TADIAR:
inflation rate. There are other factors and variables that need to be taken into
consideration, researched, and deliberated upon before the said values could be
Yes.
accurately and properly adjusted. The effects on the society, the injured party, the
accused, its socio-economic impact, and the likes must be painstakingly evaluated
and weighed upon in order to arrive at a wholistic change that all of us believe should JUSTICE PERALTA:
be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources,
and lacks sufficient personnel to conduct public hearings and sponsor studies and ... and so on. Is the Supreme Court equipped to determine those factors?
surveys to validly effect these changes in our Revised Penal Code. This function
clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this PROFESSOR TADIAR:
conclusion, to wit:
There are many ways by which the value of the Philippine Peso can be determined
xxxx utilizing all of those economic terms.
JUSTICE PERALTA: Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the
view that the role of the Court is not merely to dispense justice, but also the active
Yeah, but ... duty to prevent injustice. Thus, in order to prevent injustice in the present
controversy, the Court should not impose an obsolete penalty pegged eighty three
PROFESSOR TADIAR: years ago, but consider the proposed ratio of 1:100 as simply compensating for
inflation. Furthermore, the Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its decisions.
And I don’t think it is within the power of the Supreme Court to pass upon and peg
the value to One Hundred (₱100.00) Pesos to ...
Similarly, the Chief Justice is of the view that the Court is not delving into the validity
of the substance of a statute. The issue is no different from the Court’s adjustment
JUSTICE PERALTA:
of indemnity in crimes against persons, which the Court had previously adjusted in
light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the
Yeah.
Civil Code mandates a presumption that the lawmaking body intended right and
justice to prevail.
PROFESSOR TADIAR:
With due respect to the opinions and proposals advanced by the Chief Justice and
... One (₱1.00.00) Peso in 1930. my Colleagues, all the proposals ultimately lead to prohibited judicial legislation.
Short of being repetitious and as extensively discussed above, it is truly beyond the
JUSTICE PERALTA: powers of the Court to legislate laws, such immense power belongs to Congress and
the Court should refrain from crossing this clear-cut divide. With regard to civil
That is legislative in nature. indemnity, as elucidated before, this refers to civil liability which is awarded to the
offended party as a kind of monetary restitution. It is truly based on the value of
PROFESSOR TADIAR: money. The same cannot be said on penalties because, as earlier stated, penalties
are not only based on the value of money, but on several other factors. Further, since
That is my position that the Supreme Court ... the law is silent as to the maximum amount that can be awarded and only pegged
the minimum sum, increasing the amount granted as civil indemnity is not
proscribed. Thus, it can be adjusted in light of current conditions.
JUSTICE PERALTA:

Now, with regard to the penalty imposed in the present case, the CA modified the
Yeah, okay.
ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and
two (2) months of prision correccional in its medium period, as minimum, to fourteen
PROFESSOR TADIAR: (14) years and eight (8) months of reclusion temporal in its minimum period, as
maximum. However, the CA imposed the indeterminate penalty of four (4) years and
... has no power to utilize the power of judicial review to in order to adjust, to make two (2) months of prision correccional, as minimum, to eight (8) years of prision
the adjustment that is a power that belongs to the legislature. mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a total of
seven (7) years.
JUSTICE PERALTA:
In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v.
Thank you, Professor. People48 is highly instructive, thus:

PROFESSOR TADIAR: With respect to the imposable penalty, Article 315 of the Revised Penal Code
provides:
Thank you.46
ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the minimum, the penalty next lower would then be prision correccional in its minimum
means mentioned hereinbelow shall be punished by: and medium periods.

1st. The penalty of prision correccional in its maximum period to prision mayor in its Thus, the minimum term of the indeterminate sentence should be anywhere from 6
minimum period, if the amount of the fraud is over 12,000 but does not exceed months and 1 day to 4 years and 2 months.
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each One final note, the Court should give Congress a chance to perform its primordial
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed duty of lawmaking. The Court should not pre-empt Congress and usurp its inherent
twenty years. In such case, and in connection with the accessory penalties which may powers of making and enacting laws. While it may be the most expeditious approach,
be imposed and for the purpose of the other provisions of this Code, the penalty shall a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on
be termed prision mayor or reclusion temporal, as the case may be. prohibited judicial legislation.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of
which case, Article 65 of the same Code requires the division of the time included in petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March 22,
the penalty into three equal portions of time included in the penalty prescribed, 2007 and Resolution dated September 5, 2007 of the Court of Appeals, which
forming one period of each of the three portions. Applying the latter provisions, the affirmed with modification the Decision dated July 30, 2004 of the Regional Trial
maximum, medium and minimum periods of the penalty prescribed are: Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable
doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of
Maximum - 6 years, 8 months, 21 days to 8 years the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty
imposed is the indeterminate penalty of imprisonment ranging from THREE (3)
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to
FIFTEEN (15) YEARS of reclusion temporal as maximum.
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be
To compute the maximum period of the prescribed penalty, prisión correccional furnished the President of the Republic of the Philippines, through the Department
maximum to prisión mayor minimum should be divided into three equal portions of of Justice.
time each of which portion shall be deemed to form one period in accordance with
Article 6550 of the RPC.51 In the present case, the amount involved is ₱98,000.00, Also, let a copy of this Decision be furnished the President of the Senate and the
which exceeds ₱22,000.00, thus, the maximum penalty imposable should be within Speaker of the House of Representatives.
the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for SO ORDERED.
every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00
ceiling set by law, then, adding one year for each additional ₱10,000.00, the
maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor
minimum would be increased by 7 years. Taking the maximum of the prescribed
penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for
the estafa charge against petitioner is prision correccional maximum to prision mayor