FIRST DIVISION [G.R. No. 136394. February 15, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

HERSON NAAG y LOBAS, accused-appellant. DECISION PUNO, J.: One of the more interesting conceptual exercises in the field of Criminal Law is the characterization of a crime. The challenge is not only to prove existence of its elements. The challenge is to correctly categorize it. In the case at bar, a man sexually defiled then immediately divested his woman-victim of her belongings. Is he guilty of the special complex crime of Robbery with Rape or the separate crimes of Robbery and Rape? The answer lies in his intent. The accused in this case is a certain Herson Naag y Lobas. He was indicted for Robbery with Rape under an Information which reads: That on or about the 8th day of January, 1996 at Daraga, Albay x x x the above named accused, armed with a screw driver, by means of violence and intimidation, did then and there willfully, unlawfully and feloniously, have carnal knowledge of the complainant Desiree Gollena, against her will, by inflicting upon her with the use of said screw multiple serious physical injuries, and thereafter said accused, having been fully satisfied of his carnal lust over said Desiree Gollena and believing her to be dead, with intent of gain, divested and took her personal belongings, to wit: (1) one bag containing clothes worth P500.00 (2) one gold bracelet worth P1,500.00 (3) wallet containing P1,800.00 and (4) ladies wristwatch valued at P600.00 to the damage and prejudice of said Desiree Gollena. ACTS CONTRARY TO LAW.i[1] He pleaded not guilty during arraignment and the action proceeded to trial. The evidence for the prosecution shows that Desiree was a singer in a band which regularly plays at the Gloss and Glitters Disco located in Tabaco, Albay. On the morning of January 8, 1996, she went home to Sipi, Daraga, Albay, to visit her family. She took the bus and by about 4 oclock in the morning, she alighted at the towns Freedom Park in Daraga. She crossed a street where two tricycles were parked. She woke up one of the drivers and inquired whether she could be brought to Sipi. Getting a positive response, she boarded it. Upon reaching her place, she told him to stop and handed to him her fare. To her surprise, what she received in return was not loose change, but a slap. The driver then began to maul her. Desiree fought back as hard as she could, but this made the driver more ferocious in his assault. She was strangled, boxed and kicked. She was repeatedly stabbed with a screw driver on her face, head, and different parts of her body. Her head was banged against the sidecar. She realized that her struggle was in vain and would only put her life in greater danger. She stopped resisting and pretended to be dead. He then transported her to another place. He lifted her from the tricycle and she thought she would be thrown to a ravine or cliff beside what appeared to be an abandoned house. Instead, she was tossed to the

ground. The driver removed her pants and panties. She could not resist, fearing death. After her garments were removed, her legs were spread apart and he copulated with her. After satisfying his lust, the driver took her wristwatch worth P600.00, a bracelet worth P1,500.00 and fled with her bag containing her clothes, wallet containing P1,800.00 in cash, and some loose change. When Desiree sensed that he has left the premises, she rolled down the ravine. She did not have the energy to stand and walk and so she crawled until she reached a house, which turned out to be the dwelling place of witness Engineer Antonio Balacano located at Sybil Subdivision, Sipi, Daraga. She cried for help. Engr. Balacano responded to Desirees call for assistance. He saw Desiree, a bloodied girl, cold and torn, squatting by the gate with her pants down and hanging on one leg. It was already 5 oclock in the morning. The wife of the engineer telephoned local police authorities for assistance. In the meantime, Desiree was brought to the Albay Provincial Hospital where she was given medical treatment. Dr. Jose Solano testified that the girl was in pain when he examined her and that she sustained multiple lacerations and stab wounds on different parts of her body, and had blackening of her left and right eyes. Dr. Aileen Francis Bartilet examined Desirees genitalia and noted the absence of any sign of injury: there was no bleeding, no laceration of the hymen, no contusion in the vulvar wall of the vagina, and no abrasion. Later that morning of January 8, 1996, policemen came to the hospital to investigate the incident. Desiree gave a description of the suspect as well as the tricycle. The next day, on January 9, SPO1 Pastor Perena Jr. and SPO2 Domingo Mabini happened to apprehend one Herson Naag y Lobas, a tricycle driver, for driving a public utility tricycle without the necessary license. Naag and the vehicle were brought to the police station of Daraga. Perena and Mabini realized that Naag fit the description of the malefactor given by Desiree. They brought the confiscated student drivers permit of Naag (which contains his photograph) to the hospital for identification. Their hunch was confirmed when Desiree, upon being shown the permit, identified the man in the picture as the one who raped and robbed her. When the policemen returned to the station, Naag was already gone, but not without leaving his tricycle behind. They brought the tricycle to the hospital for identification. Desiree did not have any difficulty in identifying the tricycle as the same vehicle she boarded on the morning of January 8. A criminal complaint was then filed against Naag. On February 25, 1996, he was arrested by the NBI agents of Naga City at Tagkawayan, Quezon. The accused alleged, in his defense, that it was impossible for him to be the author of the crime at bar. He claimed that at the time and date of the incident, he was sleeping in their house approximately seven kilometers away from where it happened. His tricycle was not in a serviceable condition then, and he was repairing it the night before. It was fixed only on January 9 since he was able to buy the spare part that he needed at about 8:30 a.m. of January 8. The previous day was a Sunday and almost all of the motor shops were closed. Hence, he alleged that he could not have operated on the Sipi route on the 8th as his tricycle was not in running condition. He explained that he was in Tagkawayan when he was arrested because he had undergone hospitalization and was on an errand. The defense also called two other witnesses to the stand who backstopped the testimony of the accused. It presented his wife who basically reiterated the story of her husband. She said that he was with her from the night of January 7 up to the morning of January 8, at about 8:30, when he had to buy the spare part that he needed for his tricycle. Similarly, it presented a certain Lino Era, a next-door neighbor who recalled seeing the accused at about 10 oclock in the evening of January 7 doing some repairs on his tricycle. In the end, the trial court chose not to believe Naag. It held:

The accused in his defense put up alibi, a shabby excuse, a defense indicties never seem to tire of. (People vs. Bracamonte, 257 SCRA 380) This defense of the accused cannot prevail over the positive identification by the victim Desiree of the accused and of the tricycle. This defense of alibi is worthless in the face of his being positively identified by the victim Desiree. (People vs. Rivera, 242 SCRA 26)ii[2] However, the trial court did not convict him of the crime he was originally charged with, which is Robbery with Rape. Instead he was meted out two different sentences for the separate crimes of Robbery and Rape, viz: WHEREFORE, premises considered, the accused Herson Naag y Lobas is hereby found GUILTY beyond reasonable doubt of the crime of Rape under Art. 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced to suffer the penalty of imprisonment of Reclusion Perpetua with all the accessory penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as Indemnity and P50,000.00 as moral damages. The accused Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of the separate crime of Robbery under Art. 294 (4) of the Revised Penal Code, and taking into consideration the Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of imprisonment of ten (10) years of Prision mayor medium in its maximum period as the minimum to fourteen (14) years, ten months and twenty (20) days of Reclusion Temporal medium period in its medium period as the maximum and to return the ladies wrist watch worth P600.00, bracelet worth P1,500.00, bag of clothes worth P500.00 or their total value of P2,600.00 if return cannot be had and the cash of P1,800.00. Costs against the accused. SO ORDERED.iii[3] Dissatisfied with the verdict, the accused interposed this appeal. In his brief, he made this lone assignment of error: The Lower Court erred in finding the accused guilty of the separate crimes of Robbery and Rape.iv[4] We affirm the conviction. There is no cogent reason to disturb the findings of the lower court. Well-entrenched is the rule that an appellate court will generally not disturb the assessment of the trial court on factual matters considering that the latter, as a trier of fact, is in a better position to appreciate the same. The only exceptions allowed are when the trial court has plainly overlooked certain facts of substance which, if considered, may affect the result of the case, or in instances where the evidence fails to support or substantiate the lower courts findings and conclusions, or where the disputed decision is based on a misapprehension of facts.v[5] This case does not fall under any of the exceptions. Hence, there is no reason for us to modify the factual findings of the lower court. Even then, the appellant raises two points in support of his assignment of error designed to sow in our minds seeds of doubt. The first relates to the medical evidence on record while the second deals with his identity. The appellant capitalizes, firstly, on Dr. Bartilets testimony on the absence of fresh injury on the private part of the offended party although she was examined almost immediately after the assault. According to him, the findings of said medical expert negate the charge of rape. On the other hand, the prosecution contends that the lack of injury and the healed laceration could be attributed to the sexual intercourse she had with her boyfriend. The appellants argument fails to impress. It is to be noted that Dr. Bartilet herself explained that her findings did not eliminate the possibility of sexual intercourse. She opined that it must have been done only outside the vagina but within the external vulva by merely pushing and giving some force to it.vi[6] She added that

the appellant could have ejaculated and discharged semen on the external genitalia even without penetrating into the vagina. In rape cases, what is material is that there is penetration of the female organ no matter how slight.vii[7]7 In a long line of decisions, we have ruled that the only essential point is to prove the entrance or at least the introduction of the male organ into the labia of the pudendum.viii[8] Hence, the moment the accuseds penis knocks at the door of the pudenda it suffices to constitute the crime of rape.ix[9] The appellant next assails the identification made by Desiree. He contends that it was still dark at the time of the incident. He argues that when people board a tricycle, they do not usually focus their attention on the driver. He states that the identity of the driver could be the least of Desirees concern for at 4 oclock in the morning, she would have just wanted to go home and rest in the comfort of her bed. We are not persuaded. Desiree could not have failed to recognize the appellant because she was the victim of the assault. A truism founded on ordinary experience is that victims of criminal violence often strive hard to recognize their assailants.x[10] Furthermore, a victim has a natural knack in remembering the face of an assailant for she, more than anybody else, would be interested in bringing the malefactor to justice.xi[11] On the other hand, it would be unnatural for someone who is interested in vindicating the crime to accuse somebody other than the real culprit.xii[12] To be sure, Desiree was very emphatic in her identification of the appellant as her assailant, thus: Court:Now that person Herson Naag, how is he related to the accused in this case? Desiree: Q: A: Q: A: He is the one and same person who raped and robbed me.

You said it was the first time you saw the accused on January 8, 1996. It was still dark is (sic) it not? It was bright at the centro. But it was not in park (sic) he was sleeping at that time in his tricycle. Is it not? (sic) It was bright because there were lights.

Q: But you saw him only once on Jan. 8, 1996. How were you able to recognize him in the Municipal building when you were asked to identify him after one month, being detained? A: As I have said, I can never forget his face.xiii[13]

Moreover, Desiree should have no difficulty in identifying the appellant because when she first approached him at the centro to hire his services, the place was bright and well-lighted. The appellant further argues that Desirees initial identification of him through his picture is unreliable considering the physical and emotional state she was in at that time. It is urged that due to her physical and mental instability, the showing of the student permit must have generated a prejudice in her mind that the person shown in the picture of the drivers ID is the one who assaulted her.xiv[14] The argument proceeds from a wrong assumption. It assumes that the picture was shown before the victim gave the description to the police. It was the other way around. Thus:

Court:Have you seen him in that parking area before January 8, 1996? Desiree: No, your honor.

Q: Now, while you were in the Hospital you said that an ID was shown to you and the picture of a person and whose picture you recognize to be that of a person who raped you. Who showed you that picture? A: Q: The Police Officer. How come that the Policeman was able to go to Albay Provincial Hospital with that ID?

A: Because when they interviewed me in the hospital, I gave them the description of the accused and his tricycle.xv[15] The point is made more explicit during Desirees cross-examination: Atty. Gomez (continuing on cross-examination) Q: Now, on that date Jan. 9, 1996 were you told by the policemen that the person whose ID was shown to you was one of their suspects? A: Q: A: The policeman told me to identify the person in the ID. Were you told that the owner of the ID was apprehended for violation of traffic law? No, Sir. I was just asked to identify him.

Q: After the ID was shown to you that was the time when you also gave them the description of the person, is (sic) it not? A: No, Sir. It was on Jan. 8, 1996 when I gave the description of the tricycle driver .xvi[16]

We shall now ascertain the nature and extent of the criminal responsibility of the appellant. The issue is whether the crime committed by him is Robbery with Rape or the two separate felonies of Robbery and Rape. In the special complex crime of robbery with rape, the true intent of the accused must first be determined because it is his intent that determines the offense he has committed. This Court in People vs. Dinola,xvii[17] citing the cases of People vs. Canastrexviii[18] and People vs. Faigano,xix[19] held: x x x if the intention of the accused was to rob, but rape was committed even before the asportation, the crime is robbery with rape. But if the original plan was to rape but the accused after committing the rape also committed the robbery when the opportunity presented itself, the offense should be viewed as separate and distinct. To be liable for the complex crime of robbery with rape the intent to take personal property of another must precede the rape. We must ascertain the force which moved the appellant when he employed violence and intimidation against the person of Desiree. It is true that the appellant raped Desiree before she was dispossessed of her personal properties. This, however, is not decisive. Article 294 of the Revised Penal Code does not distinguish whether

the rape was committed before, during or after the robbery. It suffices that the robbery was accompanied by rape.xx[20] We agree with the conclusion of the trial court that rape was the primary intent of the appellant and his taking away of the belongings of the victim was only a mere afterthought. Although the trial court did not state the reasons for its ruling, there exists sufficient evidence on record from where such deduction can be made. First. It is obvious from the degree and character of the violence and intimidation which the appellant employed (and when he employed it) upon Desiree that his intent was to rape her. He applied such force as to render her resistance to his lust inutile. The kind of force used was unnecessary if he only planned to rob Desiree. On the other hand, the excessive force was clearly meant to attain his lustful scheme. Resultantly, when he finally forced his bestial desire on her, he was able to traverse, in a manner of speaking, the path of least resistance. Second. The appellant transported Desiree from where he first mauled her to an abandoned place. All the time that Desiree was helpless after her mauling, appellant did not concern himself with robbing Desiree even if he could have done so with ease if not with impunity. Instead, he preoccupied himself in finding a location more suited, nay, comfortable, for his plan of lying with her. Needless to say, an abandoned house fits well. Lastly, at no time did the appellant ask for the belongings of Desiree. Neither did he search her for valuables, except for the wallet in her pants. What is apparent is that he only: (1) took her watch and bracelet, both easily seen and noticeable, and (2) fled with her bag which was already in the tricycle. These overt acts only indicate that he decided to take Desirees belongings as an afterthought and only when the opportunity presented itself. We disagree, however, on the ruling of the trial court that the appellant is guilty of robbery. He should only be convicted of theft because when he took the personal properties of Desiree, the element of violence and intimidation was no longer present. While it is true that he inflicted force upon her person, that was with the view and in pursuance of the rape, not of the taking. When the asportation happened, Desiree was near lifeless, incapable of putting any form of opposition. The penalty for theft is determined by the value of the property taken. Under Article 309 of the Revised Penal Code, any person guilty of theft shall be punished by the penalty of prision correccional in its minimum and medium periods, if the value of the thing stolen is more than 200 pesos but does not exceed 6,000 pesos. Applying the Indeterminate Sentence Law, the minimum penalty to be meted out on the appellant Naag should be anywhere within the range of 2 months and 1 day to 6 months of arresto mayor; and the maximum should be within the range of 6 months and 1 day to 4 years and 2 months of prision correccional. Considering that no aggravating or mitigating circumstance attended the commission of the crime, the appellant should be sentenced to an indeterminate prison term of 4 months and 21 days of arresto mayor maximum as the minimum, to 1 year, 8 months and 21 days of prision correccional as the maximum. IN VIEW WHEREOF, the impugned decision is hereby MODIFIED. The accused-appellant Herson Naag y Lobas is found GUILTY beyond reasonable doubt of the crime of RAPE under Article 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua with all the accessory penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as indemnity and P50,000.00 as moral damages. The accused-appellant Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of the separate crime of THEFT under Article 308 of the Revised Penal Code, and taking into consideration the Indeterminate

Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of 4 months and 21 days of arresto mayor maximum as the minimum, to 1 year, 8 months and 21 days of prision correccional as the maximum, and to return the ladies wristwatch worth P600.00, bracelet worth P1,500.00, bag of clothes worth P500.00 or their total value of P2,600.00 if return cannot be made and the cash of P1,800.00. Costs against the accused. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Pardo and Ynares-Santiago JJ., concur. ============================================================================== SECOND DIVISION [G.R. No. 109595. April 27, 2000] CRISTETA CHUA-BURCE, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents. DECISION QUISUMBING, J.: Subject of the present appeal by certiorari is the decision dated November 27, 1992 of the Court of Appeals in CA-G.R. CR No. 12037, (a) affirming in toto the trial courts decision finding petitioner guilty of estafa, and (b) denying her Motion for Reconsideration in a Resolution dated March 25, 1993. The Regional Trial Court, Calapan, Oriental Mindoro, Branch 40, rendered a joint decision finding petitioner guilty of estafa under Article 315, par. 1 (b) of the Revised Penal Code, in Criminal Case No. C-2313, and likewise found petitioner liable for the amount of P150,000.00 in Civil Case No. R-3733. Only the criminal case is before us for review. hY The uncontroverted facts, as found by the Court of Appeals, are as follows: On August 16, 1985, Ramon Rocamora, the Manager (of Metropolitan Bank and Trust Company, Calapan Branch, Oriental Mindoro) requested Fructuoso Peaflor, Assistant Cashier, to conduct a physical bundle count of the cash inside the vault, which should total P4,000,000.00, more or less. During this initial cash count, they discovered a shortage of fifteen bundles of One Hundred Pesos denominated bills totalling P150,000.00. The One Hundred Peso bills actually counted was P3,850,000.00 as against the balance of P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or a total shortage of P150,000.00. The next day, to determine if there was actually a shortage, a re-verification of the records and documents of the transactions in the bank was conducted. There was still a shortage of P150,000.00. The bank initiated investigations totalling four (4) in all. The first was by Ramon Rocamora, the Manager. The second was by the banks internal auditors headed by Antonio Batungbakal. Then, the banks Department of Internal Affairs conducted an independent investigation. Thereafter, the National Bureau of Investigation (NBI) came in to investigate. All of these investigations concluded that there was a shortage of P150,000.00, and the person primarily responsible was the banks Cash Custodian, Cristeta Chua-Burce, the herein accused. Jksm On November 4, 1985, unable to satisfactorily explain the shortage of P150,000.00, the accuseds service with the bank was terminated.

To recover the missing amount, Metropolitan Bank and Trust Company (Metrobank) filed a Civil Case for Sum of Money and Damages with Preliminary Attachment and Garnishment docketed as Civil Case No. R-3733 against petitioner and her husband, Antonio Burce. Esm Prior to the filing of the Answer, the following Information for Estafa was filed against petitioner: "That on or about the 16th day of August 1985, and for a period prior and subsequent thereto, the above-named accused, with unfaithfulness or abuse of confidence, and with intent to defraud, did then and there wilfully, unlawfully, and feloniously, in her capacity as Cash Custodian of the Metrobank, Calapan Branch, take from the Banks Vault the amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, which is under her direct custody and/or accountability, misappropriate and convert to her own personal use and benefit, without the knowledge and consent of the offended party, despite repeated demands for her to account and/or return the said amount, she refused and failed, and still fails and refuses to the damage and prejudice of the Metrobank, Calapan Branch, in the aforementioned amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS. Contrary to Article 315 of the Revised Penal Code. Calapan, Oriental Mindoro, November 27, 1985."1[1] Both civil and criminal cases were raffled to the same branch of the Regional Trial Court of Calapan, Oriental Mindoro, Branch 40. Esmsc Thereafter, petitioner moved for the suspension of the criminal case on the ground of the existence of a prejudicial question, viz., that the resolution of the civil case was determinative of her guilt or innocence in the criminal case.2[2] The trial court, over the vehement opposition of the private and public prosecutors, granted the motion and suspended the trial of the criminal case.3[3] On petition for certiorari to the Court of Appeals, the appellate court ruled that there was no prejudicial question.4[4] Petitioner was arraigned and assisted by counsel de parte, entered a plea of not guilty.5[5] While the trial of the criminal case was suspended, the trial of the civil case continued. At the time of arraignment, the civil case was already submitted for decision. Hence, during the pre-trial conference of the criminal case, the parties agreed to adopt their respective evidence in the civil case as their respective evidence in the criminal case.6[6] The trial court ordered the parties to submit their written agreement pursuant to Section 4 of Rule 118 of the

Rules of Court.7[7] Thereafter, petitioner, duly assisted by her counsel, with the conforme of the public prosecutor, entered into the following pre-trial agreement:8[8] "COMES NOW, the accused, assisted by counsel, and unto this Honorable Court most respectfully submits this Pre-Trial agreement: 1. That the evidence already adduced by the plaintiff in Civil Case No. R-3733 will be adopted by the prosecution as its evidence in Criminal Case No. C-2313; 2. That the evidence to be adduced by the defendant in Civil Case No. R-3733 will also be adopted as evidence for the defense in Criminal Case No. C-2313. WHEREFORE, premises considered, it is prayed that the foregoing pre-trial agreement be admitted in compliance with the Order of this Court dated April 19, 1988. RESPECTFULLY SUBMITTED. Calapan, Oriental Mindoro, August 20, 1990. CRISTETA CHUA-BURCE (sgd.) Accused Assisted By: RODRIGO C. DIMAYACYAC (sgd.) Defense Counsel San Vicente, Calapan Oriental Mindoro IBP O.R. No. 292575 May 11, 1990 Quezon City With Conformity: EMMANUEL S. PANALIGAN (sgd.) Prosecuting Fiscal

Pursuant to the pre-trial agreement, the public prosecutor filed a Motion to Adopt Evidence.9[9] Both the pretrial agreement and said Motion were granted by the trial court.10[10] On March 18, 1991, the trial court rendered a consolidated decision11[11] finding petitioner (a) guilty of estafa under Article 315 (1) (b) of the Revised Penal Code in the criminal case, and (b) liable for the amount of P150,000.00 in the civil case. The dispositive portion of decision provides - In Criminal Case No. C-2313 WHEREFORE, the Court hereby finds the accused Cristeta Chua-Burce guilty beyond reasonable doubt of the crime of Estafa, punishable under Art. 315, paragraph 1 (b) of the Revised Penal Code, which imposes a penalty of prision correccional in its maximum period to prision mayor in its minimum period but considering that the amount involved exceeds P22,000.00, the penalty provided for shall be imposed in its maximum period, adding one year for each additional P10,000.00, but the total amount not to exceed twenty years. Esmmis Applying the Indeterminate Sentence Law, the imposable penalty shall be one degree lower as minimum of arresto mayor with a penalty range of One Month and One Day to Six Months, as minimum to prision mayor in its maximum period, as maximum, or a penalty of Six years to Twelve Years. Considering the mitigating circumstance of voluntary surrender, the court hereby imposes upon the accused to suffer imprisonment from SIX (6) MONTHS of arresto mayor in its maximum period, as minimum, to EIGHT (8) YEARS of prision mayor, in its minimum period, as maximum. The civil liability shall not be imposed in this case due to a separate civil action. Esmso - In Civil Case No. R-3733 WHEREFORE, judgment is hereby rendered in favor of the plaintiff Metrobank, ordering defendants Cristeta Chua-Burce and Antonio Burce, spouses, to pay Metrobank the amount of P150,000.00 representing the amount misappropriated with the legal rate of six percent (6%) per annum from August 15, 1985 until fully paid and to pay the costs of suit. SO ORDERED." Petitioner seasonably appealed her conviction in the criminal case to the Court of Appeals. Petitioner filed a separate appeal in the civil case. In a decision dated November 27, 1992,12[12] the Court of Appeals affirmed the trial courts decision in toto. Petitioners Motion for Reconsideration was likewise denied.13[13] Hence, the recourse to this Court. Msesm

Petitioner raises the following issues:14[14] 1. IS THE RESULT OF POLYGRAPH EXAMINATION ADMISSIBLE IN EVIDENCE? 2. CAN THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT ADMIT IN EVIDENCE THE EVIDENCE WHICH WAS ALREADY DENIED ADMISSION IN THE ORDER OF THE FORMER JUDGE OF THE SAME COURT? 3. DOES PRIMA FACIE PRESUMPTION OF MISAPPROPRIATION OR CONVERSION EXISTS (sic) AGAINST THE PETITIONER WHEN THERE WERE OTHER PERSONS WHO HAD DIRECT AND GREATER ACCESS IN THE CASH-IN-VAULT? 4. IS RULE 111 SECTION 2 (a) OF THE REVISED RULES ON CRIMINAL PROCEDURE APPLICABLE IN (sic)THE CASE AT BAR? 5. WAS THERE A VALID PROCEEDING WHEN THE FISCAL WAS NOT ACTUALLY PRESENT AND DID NOT CONTROL AND SUPERVISE THE PROSECUTION OF THE CASE? Exsm In gist, (1) petitioner contends that the trial court erred in taking into account the results of the polygraph examination as circumstantial evidence of guilt considering the inherent unreliability of such tests, and the fact that the previous trial judge who handled the case already ruled such evidence as inadmissible; (2) petitioner insists that there can be no presumption of misappropriation when there were other persons who had access to the cash in vault; and (3) petitioner questions the validity of the trial of criminal case considering that the pre-trial agreement dispensed with the intervention of the public prosecutor in a full-blown trial of the criminal case. Kyle The Office of the Solicitor General, for the State, contends that the guilt of petitioner has been proven beyond reasonable doubt by the following facts which were duly established during trial - first, petitioner was the cash custodian who was directly responsible and accountable for the cash-in-vault. Second, the other persons who had access to the vault facilities never used the duplicate keys to open the safety deposit boxes and the cash safe from where the P100.00 bill denominations were located. In fact, the duplicate keys were offered in evidence still in their sealed envelopes. Third, alterations and superimposition on the cash-in-vault summary sheet were made by petitioner to cover the cash shortage. Lastly, there was a valid joint trial of the civil and criminal cases. The crucial issues, in our mind, are (1) whether there was a valid trial of the criminal case, and (2) whether the elements of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code were duly proven beyond reasonable doubt. Kycalr First, petitioner assails the validity of the proceedings in the trial court on the ground that the public prosecutor did not intervene and present any evidence during the trial of the criminal case. The records clearly show that the pre-trial agreement was prepared by petitioner with the conforme of the public prosecutor. Thereafter, petitioner filed a consolidated memorandum for both civil and criminal cases. Section 5 of Rule 11015[15] requires that all criminal actions shall be prosecuted under the direction and control of the public prosecutor. The rationale behind the rule is "to prevent malicious or unfounded prosecutions by private

persons."16[16] The records show that the public prosecutor actively participated in the prosecution of the criminal case from its inception. It was during pre-trial conference when the parties agreed to adopt their respective evidence in the civil case to the criminal case. This is allowed under Section 2 (e) of Rule 118 of the Rules of Court17[17] which provides that during pre-trial conference, the parties shall consider "such other matters as will promote a fair and expeditious trial." The parties, in compliance with Section 4 of Rule 118,18[18] reduced to writing such agreement. Petitioner, her counsel, and the public prosecutor signed the agreement. Petitioner is bound by the pre-trial agreement, and she cannot now belatedly disavow its contents.19[19] On the second issue. Petitioner was charged with the crime of estafa under Article 315 (1) (b) of the Revised Penal Code.20[20] In general, the elements of estafa are: (1) that the accused defrauded another (a) by abuse of confidence or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.21[21] Deceit is not an essential requisite of estafa with abuse of confidence, since the breach of confidence takes the place of the fraud or deceit, which is a usual element in the other estafas.22[22] The elements of estafa through conversion or misappropriation under Art. 315 (1) (b) of the Revised Penal Code are:23[23] (1) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond; (2) that there is conversion or diversion of such property by the person who has so received it or a denial on his part that he received it; (3) that such conversion, diversion or denial is to the injury of another and (4) that there be demand for the return of the property. Have the foregoing elements been met in the case at bar? We find the first element absent. When the money, goods, or any other personal property is received by the offender from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received.24[24] Juridical possession means a possession which gives the transferee a

right over the thing which the transferee may set up even against the owner.25[25] In this case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees. Calrky In People v. Locson,26[26] the receiving teller of a bank misappropriated the money received by him for the bank. He was found liable for qualified theft on the theory that the possession of the teller is the possession of the bank. We explained in Locson that "The money was in the possession of the defendant as receiving teller of the bank, and the possession of the defendant was the possession of the bank. When the defendant, with grave abuse of confidence, removed the money and appropriated it to his own use without the consent of the bank, there was the taking or apoderamiento contemplated in the definition of the crime of theft."27[27] In the subsequent case of Guzman v. Court of Appeals,28[28] a travelling sales agent misappropriated or failed to return to his principal the proceeds of things or goods he was commissioned or authorized to sell. He was, however, found liable for estafa under Article 315 (1) (b) of the Revised Penal Code, and not qualified theft. In the Guzman case, we explained the distinction between possession of a bank teller and an agent for purposes of determining criminal liability "The case cited by the Court of Appeals (People vs. Locson, 57 Phil. 325), in support of its theory that appellant only had the material possession of the merchandise he was selling for his principal, or their proceeds, is not in point. In said case, the receiving teller of a bank who misappropriated money received by him for the bank, was held guilty of qualified theft on the theory that the possession of the teller is the possession of the bank. There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Article 1915, [N]ew Civil Code; Article 1730, old)." Mesm Petitioner herein being a mere cash custodian had no juridical possession over the missing funds. Hence, the element of juridical possession being absent, petitioner cannot be convicted of the crime of estafa under Article 315, No. 1 (b) of the Revised Penal Code.29[29]

WHEREFORE, the petition is hereby granted and petitioner is ACQUITTED of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. Petitioner is ordered RELEASED from custody unless she is being held for some other lawful cause. No costs. Slx SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Case Digest on PEOPLE v. NAAG GR No. 136394; Feb. 15, 2001 Accused was charged and found guilty by the lower court of the special complex crime of robbery with rape. ISSUE: Was there rape? Was he guilty of the special complex crime of robbery with rape? HELD: There was rape. In rape cases, what is material is that there is penetration no matter how slight. The only essential point is to prove the entrance or at least the introduction of the male organ into the labia of the pudendum. The moment the accuseds penis knocks at the door of the of the pudenda it suffices to constitute the crime of rape. Accused is guilty of separate crimes of rape and theft. Facts show that the primary intent of accused was to rape the victim and not to rob her. Moreover, the crime of taking away the property is theft and not robbery because of the absence of violence and intimidation.

CHUA BRUCE V. CA 331 SCRA 1

FACTS:
After a physical count of the money bundles in the vault, it was found out by management that the bank had a shortage of money. An investigation was conducted and one of those questioned was the cash custodian. Unable to give reasonable explanation, a case of estafa was filed against her.

HELD:
Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. A cash custodians possession of the cash belonging to the bank is aki n to that of a bank teller both being mere bank employees.