G.R. No.
195244 June 22, 2015 Carl or Muymoy, 5-year old son of the victim, testified that on the night of
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALVIN ESUGON y AVILA, Accused-Appellant.
DECISION
BERSAMIN, J.:
Every child is presumed qualified to be a witness. The party challenging
the child's competency as a witness has the burden of substantiating his
challenge.
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 composite crime of robbery with homicide handed down
by the Regional Trial Court (RTC), Branch 211, in Mandaluyong City
through its judgment rendered on January 27, 2006.2
Antecedents
The information charged the appellant with robbery with homicide,
alleging as follows:
That on or about the 22nd day of October 2003, in the City of
Mandaluyong, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, with intent to gain, with the use of a
bladed weapon, by means of force and violence, did, then and there,
willfully, unlawfully and feloniously take, steal and carry away cash
money amounting to ₱13,000.00 belonging to JOSEPHINE CASTRO y
BARRERA, to the damage and prejudice of the latter; that by reason or
on occasion of said robbery, accused did, then and there willfully,
unlawfully and feloniously attack, assault and stab with the said bladed
weapon said JOSEPHINE CASTRO y BARRERA, thereby inflicting upon
her physical injuries which directly caused her death.
CONTRARY TO LAW.3
The CA adopted the RTC’s summation of the evidence of the
Prosecution, to wit:
the incident, he, his younger sister Cheche, and his mother and father,
were sleeping on the ground floor of their house. He saw appellant,
whom he calls "Nonoy," enter their 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 mother got stabbed,
his father chased the appellant. Carl saw blood come out of his mother’s
lower chest. His father then brought her to the hospital. Carl positively
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 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).
Upon being asked by the trial court, Carl stated that although there was
no light when his mother was stabbed, he was sure of what he saw since
there was light at their second floor, which illumined the ground floor
through the stairway (TSN, February 24, 2004, pp. 33-34).
Insp. Marquez, who autopsied the body, related that the cause of the
victim’s death was hemorrhagic shock due to stab wound. The wound
was located at the epigastric region, measuring 2.8 x 0.5 cm, 4 cm from
left of the anterior midline, 13 cm deep, 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, p. 103).
Next to testify was Dennis, husband of the victim. He narrated that he
and the victim 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 months old. At about 9 p.m. on
October 21, 2003, he and his wife were sleeping downstairs in their sala,
with their baby, while their other children slept upstairs. Their sala
measures 3 by 3 meters. At around 2 a.m., his son Carl woke up crying
and went downstairs to sleep with them. Fifteen to thirty minutes later, he
heard someone shout "magnanakaw!" [H]e turned on the light and saw
that their door was open. He got their bolo and ran outside. When he did
not see anybody, he returned and heard his wife moaning. He embraced
and carried her and saw blood on her back. He shouted for help and his
brother-in law helped him bring the victim to the hospital where she
eventually died. He spent ₱23,000.00 for the funeral and ₱44,500.00 for
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 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).
Sharon, sister-in-law of the victim, testified that she and her husband
were sleeping upstairs when they were roused from their sleep at around
2 a.m. of October 22, 2003 by Dennis’ cry for help. She saw that there
was blood on the victim’s chest. After 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 front of their
house. She took Carl and had him sit on her lap. Then Carl said, "Tita,
sya pasok bahay namin" pointing to someone but she did not see who it
was since there were many people passing by. Later, the police asked
Carl whether he saw somebody enter their house and he answered yes
and demonstrated how his mother 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 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).
PO1 Fabela also testified that after it was reported to him that there was
a stabbing 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 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).
PO2 Sazon meanwhile testified that while he was questioning people in
the area, Carl pointed to them the suspect who was one of the
bystanders. They were asking Carl questions when he suddenly blurted
out that it was appellant who entered their house and stabbed his mother.
They invited the appellant to the police station but 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
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 at 11 o’ clock p.m. and had then gone
home. He recalled that he had been roused from slumber by screams for
help around two o’clock a.m., prompting him to ask his mother for the key
to the door; that he had then gone outside where he learned of the killing
of the victim; that police officers had later on approached him to inquire
what he knew about the killing because they told him that Carl, the young
son of the 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 the police officers that he had never
been involved in any wrongdoing in his years of living in the
neighborhood.
The appellant’s mother corroborated his version.5
Judgment of the RTC
As mentioned, the RTC pronounced the appellant guilty of the crime
charged under its judgment rendered on January 27, 2006,6 disposing:
WHEREFORE, premises considered, finding the accused ALVIN
ESUGON y AVILA @ "NONOY" GUILTY beyond reasonable doubt of the
crime of ROBBERY WITH HOMICIDE under Article 293 and punished
under Article 294 (1) of the Revised Penal Code, the court hereby
sentences him to Reclusion Perpetua and to indemnify the heirs of
JOSEPHINE CASTRO y BARRERA as follows:
1) ₱50,000.00 civil indemnity;
2) ₱57,500.00 as actual damages;
3) ₱50,000.00 as moral damages.
SO ORDERED.7
Decision of the CA
On appeal, the appellant argued that the RTC erred in finding him guilty
beyond reasonable doubt of the composite crime of robbery with
homicide based solely on the testimony of Carl, a 5-year old witness
whose recollections could only be the product of his imagination.8
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:
WHEREFORE, the appeal is DENIED for lack of merit. The Decision
dated January 27, 2006 of the Regional Trial Court, Branch 211 of
Mandaluyong City in Crim. Case No. MC03-7597, is hereby AFFIRMED
with the MODIFICATION in that the award of ₱57,500.00 as actual
damages should be DELETED and in lieu thereof, temperate damages in
the amount of ₱25,000.00 should be AWARDED the heirs of Josephine
Castro y Barrera.
SO ORDERED.10
Issues
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 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 attack on the
victim occurred because his father said that he had turned the light on
upon hearing somebody shouting " Magnanakaw!;" and that his father
had then gotten his bolo, and gone outside the house.11
Moreover, the appellant maintains that the Prosecution did not prove that
violence or intimidation was employed in the course of the robbery. He
argues that he could not be held liable for robbery by using force upon
things considering that the culprit 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 could be liable only for
the separate crimes of theft and homicide, not of the composite crime of
robbery with homicide.12
The Office of the Solicitor General (OSG) counters that the evidence
showed that the appellant’s principal intent had been to rob the victim’s
house, with the homicide being perpetrated as a mere incident of the
robbery; and that Carl positively identified the appellant as the person
who had stabbed the victim, his identification bearing "all the earmarks of
credibility especially when he has no motive for lying about the identity of
the accused."13
Ruling of the Court
The appeal is bereft of merit.
The most important task of the St ate in the successful prosecution of the
accused is his credible and competent identification as the perpetrator of
the crime. Hence, this appeal turns on whether or not the identification of
the appellant as the perpetrator of the robbery with homicide was credible
and competent considering that the identifying witness was Carl, a 5-year
old lad, whose sole testimony positively pointed to and incriminated the
appellant as the person who had entered their home, robbed the family,
and killed his mother.
The qualification of a person to testify rests on the ability to relate to
others the acts and events witnessed. Towards that end, Rule 130 of the
Rules of Court makes clear who may and may not be witnesses in judicial
proceedings, to wit:
Section 20. Witnesses; their qualifications. - Except as provided in the
next succeeding section, all persons who can perceive, and perceiving,
can make known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwis e provided by law, shall not be a
ground for disqualification. (l8 a)
Section 21. Disqualification by reason of mental incapacity or immaturity.
- The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production
for examination, is such that they are incapable of intelligently
making known their perception to others;
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are
examined and of relating them truthfully. (19a)
As the rules show, anyone who is sensible and aware of a relevant event
or incident, and can communicate such awareness, experience, or
observation to others can be a witness. Age, religion, ethnicity, gender,
educational attainment, or social stat us are not necessary to qualify a
person to be a witness, so long as he does not possess any of the
disqualifications as listed the rules. The generosity with which the Rules
of 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 not grounds for disqualification.14
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 has long been erased. Under the Rule on Examination
of a Child Witness (A.M. No. 004-07-SC 15 December 2000), every child
is now presumed qualified to be a witness. To rebut this presumption, the
burden of proof lies on the party challenging the child’s competency. Only
when substantial doubt exists regarding the ability of the child to perceive
,remember, communicate, distinguish truth from falsehood, or appreciate
the duty to tell the truth in court will the court, motu proprio or on motion
of a party, conduct a competency examination of a child.15
The assessment of the credibility of witnesses is within the province of
the trial court.16 All questions bearing on the credibility of witnesses are
best addressed by the trial court by virtue of its unique position to
observe the crucial and often incommunicable evidence of the witnesses’
deportment while testifying, something which is denied to the appellate
court because of the nature and function of its office. The trial judge has
the unique advantage of actually examining the real and 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 reversal of the trial court’s assessment and
conclusion, like when no significant facts and circumstances are shown
to have been overlooked or disregarded, the reviewing 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 to adduce evidence to challenge such competency by
showing that the child was incapable of perceiving events and of
communicating his perceptions, or that he did not possess the basic
qualifications of a competent witness. After the Prosecution terminated its
direct examination of Carl, the appellant extensively tested his direct
testimony on cross-examination. All that the Defense did was to attempt
to discredit 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 trial court. Consequently, the trial
judge favorably determined the competency of Carl to testify against the
appellant.
The appellant points to inconsistencies supposedly incurred by Carl. That
is apparently not disputed. However, it seems clear that whatever
inconsistencies the child incurred in his testimony did not concern the
principal occurrence or the 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 inconsistencies did not
negate the positive identification of the appellant as the perpetrator. Also,
that Carl did not shout to seek help upon witnessing how the appellant
had stabbed his mother to death did not destroy his credibility. For sure,
he could not be expected to act and to react to what happened like an
adult. Although children have different levels of intelligence and different
degrees of perception, the determination of their capacity to perceive and
of their ability to communicate their 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 showing of mistake or
misappreciation on the part of the trial court.18
It is true that an appeal in a criminal case like this one opens the record
of the trial bare and open. Even so, the finding of facts by the trial court
are still entitled to great respect especially when affirmed on appeal by
the CA.19This great respect for such findings rests mainly on the trial
court’s direct and personal access to the witnesses while they testify in its
presence, giving them the unique opportunity to observe their manner
and decorum during intensive grilling by the counsel for the accused, and
to see if the witnesses were fidgeting and prevaricating, or sincere and
trustworthy. With both the RTC and the CA sharing the conviction on
Carl’s credibility, his capacity to perceive and his ability to communicate
his perception, we cannot depart from their common conclusion.
Moreover, according credence to Carl’s testimony despite his tender age
would not be unprecedented. In People v. Mendiola,20the Court
considered a 6-y ear-old victim competent, and regarded her testimony
against the accused credible. In Dulla v. Court of Appeals,21 the testimony
of the three-year-old victim was deemed acceptable. As such, Carl’s
testimony was entitled to full probative weight.
Carl positively identified the appellant as the culprit during the
investigation and during the trial. Worthy to note is that the child could not
have been mistaken about his identification of him in view of his obvious
familiarity with the appellant as a daily presence in the billiard room
maintained by the child’s family. Verily, the evidence on record
overwhelmingly showed that the appellant, and no other, had robbed and
stabbed the victim.
The appellant contends that robbery was not proved beyond reasonable
doubt; that to sustain a conviction for robbery with homicide, the robbery
itself must be proven 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 against or intimidation of
any person or by using force upon things.
The contention lacks persuasion.
To sustain a conviction for robbery with homicide, the Prosecution must
prove the concurrence of the following elements, namely: (1) the taking of
personal property belonging to another; (2) with intent to gain; (3) with the
use of violence or intimidation against a person; and (4) the crime of
homicide, as used in the generic sense, was committed on the occasion
or by reason of the robbery.22 A conviction requires certitude that the
robbery is the main objective of the malefactor, and the killing is merely
incidental to the robbery.23
The CA has indicated that the appellant carried a long-bladed weapon.
The fact that the appellant was armed with the long-bladed weapon,
which was undoubtedly a deadly weapon, competently proved the
presence of violence or intimidation against persons that qualified the
offense as robbery instead of theft. For sure, too, the patent intent of the
appellant was originally to commit robbery, with the homicide being
committed only in the course or on the occasion of the perpetration of the
robbery. As the records show, Dennis was awakened by someone
shouting " Magnanakaw!" The shout was most probably made by the
victim, whom the appellant then stabbed in order to facilitate his escape.
Considering that the original criminal design to rob had been
consummated with the taking of the money amounting to ₱13,000.00, the
killing of the victim under the circumstances rendered the appellant guilty
beyond reasonable doubt of robbery with homicide.
Robbery with homicide is a composite crime, also known as a special
complex crime. It is composed of two or more crimes but is treated by law
as a single indivisible and unique offense for being the product of one
criminal impulse. It is a specific crime with a specific penalty provided by
law, and is to be distinguished from a compound 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 less grave, or one offense being the
necessary means to commit the other. In a composite crime, the penalty
for the specified combination of crimes is specific, but in a complex or
compound crime the penalty is that corresponding to the most 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 subject of a separate information, but a light felony that
accompanies a composite crime is absorbed.
The aggravating circumstances of dwelling and nighttime are not
appreciated to raise the penalty to be imposed because the information
did not specifically allege them. But they should be appreciated in order
to justify the grant of exemplary damages to 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 granted if at
least one aggravating circumstance attended the commission of the
crime. The aggravating circumstance for this purpose need not be
specifically alleged 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. The commission of an offense has a two-pronged effect, one on
1âwphi 1
the public as it breaches 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 for the accused and
by an award of additional damages to the victim. The increase of the
penalty or a shift to a graver felony underscores the exacerbation of the
offense by the attendance of aggravating circumstances, whether
ordinary or qualifying, in its commission. Unlike the criminal liability which
is basically a State concern, the 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 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 consequence to the criminal, rather than to the civil, liability of the
offender. In fine, relative to the civil aspect of the case, an aggravating
circumstance, whether ordinary or qualifying, should entitle the offended
party to an award of exemplary damages within the unbridled meaning of
Article 2230 of the Civil Code.27
In line with current jurisprudence,28 we increase the civil indemnity to
₱75,000.00, and the moral damages to ₱75,000.00.
In addition to the damages awarded by the CA, the appellant should be
liable to pay the heirs of the victim interest at the legal rate of 6% per
annum on all the monetary awards for damages from the date of the
finality of this decision until the awards are fully paid.
WHEREFORE, the Court AFFIRMS the decision promulgated on July 23,
2010 subject to the MODIFICATIONS that then accused-appellant ALVIN
ESUGON y AVILA shall pay 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 damages of ₱25,000.00;
and interest at the legal rate of 6% per annum on all monetary awards for
damages reckoned from the date of the finality of this decision until the
awards are fully paid, plus the costs of suit.

The accused-appellant is ORDERED to pay the costs of suit.

SO ORDERED.
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result, he
should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on
a common theory expounded in two well-known decisions1 rendered
decades ago by the Court of Appeals, upholding the existence of
frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this
Court.
As far as can be told,2 the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in
1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives
occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from
an Information6 charging petitioner Aristotel Valenzuela (petitioner) and
Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at
around 4:30 p.m., petitioner and Calderon were sighted outside the
Super Sale Club, a supermarket within the ShoeMart (SM) complex along
North EDSA, by Lorenzo Lago (Lago), a security guard who was then
manning his post at the open parking area of the supermarket. Lago saw
petitioner, who was wearing an identification card with the mark
"Receiving Dispatching Unit (RDU)," hauling a push cart with cases of
detergent of the well-known "Tide" brand. Petitioner unloaded these
cases in an open parking space, where Calderon was waiting. Petitioner
then returned inside the supermarket, and after five (5) minutes, emerged
with more cartons of Tide Ultramatic and again unloaded these boxes to
the same area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded
the cab and directed it towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When
Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert
his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.8 The
filched items seized from the duo were four (4) cases of Tide Ultramatic,
one (1) case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security office
before they were transferred on the same day to the Baler Station II of
the Philippine National Police, Quezon City, for investigation. It appears
from the police investigation records that apart from petitioner and
Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP
Station in connection with the incident. However, after the matter was
referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in
Informations prepared on 20 May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
they were haled by Lago and his fellow security guards after a
commotion and brought to the Baler PNP Station. Calderon alleged that
on the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada
decided to buy snacks inside the supermarket. It was while they were
eating that they heard the gunshot fired by Lago, leading them to head
out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention.12 Meanwhile, petitioner
testified during trial that he and his cousin, a Gregorio Valenzuela,13 had
been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security
guard Lago fire a shot. The gunshot caused him and the other people at
the scene to start running, at which point he was apprehended by Lago
and brought to the security office. Petitioner claimed he was detained at
the security office until around 9:00 p.m., at which time he and the others
were brought to the Baler Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was detained overnight,
and eventually brought to the prosecutor’s office where he was charged
with theft.14 During petitioner’s cross-examination, he admitted that he
had been employed as a "bundler" of GMS Marketing, "assigned at the
supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court
(RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon
of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum.17 The RTC
found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused
as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only petitioner
filed a brief19 with the Court of Appeals, causing the appellate court to
deem Calderon’s appeal as abandoned and consequently dismissed.
Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he
was never placed in a position to freely dispose of the articles
stolen.20 However, in its Decision dated 19 June 2003,21 the Court of
Appeals rejected this contention and affirmed petitioner’s
conviction.22 Hence the present Petition for Review,23 which expressly
seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the theft
of several cases of detergent with a total value of ₱12,090.00 of which he
was charged.25 As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed
by the RTC and the Court of Appeals. The only question to consider is
whether under the given facts, the theft should be deemed as
consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites26 two decisions rendered many years ago by the Court of Appeals:
People v. Diño27 and People v. Flores.28 Both decisions elicit the interest
of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the
present case. Petitioner invoked the same rulings in his appeal to the
Court of Appeals, yet the appellate court did not expressly consider the
import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to
the Diño and Flores rulings since they have not yet been expressly
adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Diño and
Flores have attained a level of renown reached by very few other
appellate court rulings. They are comprehensively discussed in the most
popular of our criminal law annotations,29 and studied in criminal law
classes as textbook examples of frustrated crimes or even as definitive of
frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Diño and Flores
are doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any
scenario that involves the thief having to exit with the stolen property
through a supervised egress, such as a supermarket checkout counter or
a parking area pay booth, may easily call for the application of Diño and
Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Diño and Flores and
the theories offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to examine
whether those theories are correct and should continue to influence
prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the
specific issues relative to "frustrated theft," it is necessary to first refer to
the basic rules on the three stages of crimes under our Revised Penal
Code.30
Article 6 defines those three stages, namely the consummated, frustrated
and attempted felonies. A felony is consummated "when all the elements
necessary for its execution and accomplishment are present." It is
frustrated "when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or
that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by
the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends
and the objective phase begins.32 It has been held that if the offender
never passes the subjective phase of the offense, the crime is merely
attempted.33 On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, "[s]ubjectively
the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution despite commencing
the commission of a felony, the crime is undoubtedly in the attempted
stage. Since the specific acts of execution that define each crime under
the Revised Penal Code are generally enumerated in the code itself, the
task of ascertaining whether a crime is attempted only would need to
compare the acts actually performed by the accused as against the acts
that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was "produced" after
all the acts of execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition that generally
furnishes the elements of each crime under the Revised Penal Code,
while the elements in turn unravel the particular requisite acts of
execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea"
supplies an important characteristic of a crime, that "ordinarily, evil intent
must unite with an unlawful act for there to be a crime," and accordingly,
there can be no crime when the criminal mind is wanting.35 Accepted in
this jurisdiction as material in crimes mala in se,36mens rea has been
defined before as "a guilty mind, a guilty or wrongful purpose or criminal
intent,"37 and "essential for criminal liability."38 It follows that the statutory
definition of our mala in se crimes must be able to supply what the mens
rea of the crime is, and indeed the U.S. Supreme Court has comfortably
held that "a criminal law that contains no mens rea requirement infringes
on constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in
our legal law, it is not enough that mens rea be shown; there must also
be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable
that the language of the law expressly provide when the felony is
produced. Without such provision, disputes would inevitably ensue on the
elemental question whether or not a crime was committed, thereby
presaging the undesirable and legally dubious set-up under which the
judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or homicide
expressly uses the phrase "shall kill another," thus making it clear that the
felony is produced by the death of the victim, and conversely, it is not
produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any person
who, with intent to gain but without violence against or intimidation of
persons nor force upon things, shall take personal property of another
without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or a field where
trespass is forbidden or which belongs to another and without the
consent of its owner, shall hunt or fish upon the same or shall gather
cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative
and highly idiosyncratic means by which theft may be committed.41 In the
present discussion, we need to concern ourselves only with the general
definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft ─ the taking of
personal property of another. It is also clear from the provision that in
order that such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was with intent to
gain; without force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1) that
there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking
be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of
persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the definition
of theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass "any kind of physical handling of property
belonging to another against the will of the owner,"43 a definition similar to
that by Paulus that a thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea had taken
hold that more than mere physical handling, there must further be an
intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain,
was maintained in both the Spanish and Filipino penal laws, even as it
has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or
"unlawful taking," to characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to
be coupled with "the intent to appropriate the object in order to constitute
apoderamiento; and to appropriate means to deprive the lawful owner of
the thing."47 However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the
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 temporary possession by the offender or
disturbance of the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful
taking.51
So long as the "descriptive" circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the completion of
the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the attempted
stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without
need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales
Club, petitioner forfeited the extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated
theft, we are obliged to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the theft would have been
frustrated only, once the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, "do not produce [such theft]
by reason of causes independent of the will of the perpetrator." There are
clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will
of the perpetrator. The second factor ultimately depends on the evidence
at hand in each particular case. The first, however, relies primarily on a
doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the
commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated,
it is necessary to inquire as to how exactly is the felony of theft
"produced." Parsing through the statutory definition of theft under Article
308, there is one apparent answer provided in the language of the law —
that theft is already "produced" upon the "tak[ing of] personal property of
another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt from
the baggage of a foreign national and secreted the item in his desk at the
Custom House. At no time was the accused able to "get the merchandise
out of the Custom House," and it appears that he "was under observation
during the entire transaction."54 Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft,
finding that "all the elements of the completed crime of theft are
present."55 In support of its conclusion that the theft was consummated,
the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by the
policeman but sometime later. The court said: "[x x x] The trial court did
not err [x x x ] in considering the crime as that of consummated theft
instead of frustrated theft inasmuch as nothing appears in the record
showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an
interval of time." (Decision of the Supreme Court of Spain, October 14,
1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the
act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church,
the offended party got back the money from the defendant. The court
said that the defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the Supreme Court of
Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means
of a key opened up a case, and from the case took a small box, which
was also opened with a key, from which in turn he took a purse
containing 461 reales and 20 centimos, and then he placed the money
over the cover of the case; just at this moment he was caught by two
guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The accused
[x x x] having materially taken possession of the money from the moment
he took it from the place where it had been, and having taken it with his
hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the
act of making use of the thing having been frustrated, which, however,
does not go to make the elements of the consummated crime." (Decision
of the Supreme Court of Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish
decisions cited therein, that the criminal actors in all these cases had
been able to obtain full possession of the personal property prior to their
apprehension. The interval between the commission of the acts of theft
and the apprehension of the thieves did vary, from "sometime later" in the
1898 decision; to the very moment the thief had just extracted the money
in a purse which had been stored as it was in the 1882 decision; and
before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no consequence in those cases,
as it was ruled that the thefts in each of those cases was consummated
by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is
People v. Sobrevilla,57 where the accused, while in the midst of a crowd
in a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, "caught hold of
the [accused]’s shirt-front, at the same time shouting for a policeman;
after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman."58 In rejecting the
contention that only frustrated theft was established, the Court simply
said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime of
theft. If the pocket-book was afterwards recovered, such recovery does
not affect the [accused’s] criminal liability, which arose from the [accused]
having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme
Court cases cited in the latter, in that the fact that the offender was able
to succeed in obtaining physical possession of the stolen item, no matter
how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein
contradict the position of petitioner in this case. Yet to simply affirm
without further comment would be disingenuous, as there is another
school of thought on when theft is consummated, as reflected in the Diño
and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after
Adiao and 15 years before Flores. The accused therein, a driver
employed by the United States Army, had driven his truck into the port
area of the South Harbor, to unload a truckload of materials to waiting
U.S. Army personnel. After he had finished unloading, accused drove
away his truck from the Port, but as he was approaching a checkpoint of
the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later
contended that he had been stopped by four men who had loaded the
boxes with the agreement that they were to meet him and retrieve the
rifles after he had passed the checkpoint. The trial court convicted
accused of consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles "pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo
inside the depot, it would be allowed to pass through the check point
without further investigation or checking."60 This point was deemed
material and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles
stolen, even if it were more or less momentary."61 Support for this
proposition was drawn from a decision of the Supreme Court of Spain
dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so
haga en circunstancias tales que permitan al sustractor la libre
disposicion de aquella, siquiera sea mas o menos momentaneamente,
pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles stolen
must first be passed through the M.P. check point, but since the offense
was opportunely discovered and the articles seized after all the acts of
execution had been performed, but before the loot came under the final
control and disposal of the looters, the offense can not be said to have
been fully consummated, as it was frustrated by the timely intervention of
the guard. The offense committed, therefore, is that of frustrated theft.63
Diño thus laid down the theory that the ability of the actor to freely
dispose of the items stolen at the time of apprehension is determinative
as to whether the theft is consummated or frustrated. This theory was
applied again by the Court of Appeals some 15 years later, in Flores, a
case which according to the division of the court that decided it, bore "no
substantial variance between the circumstances [herein] and in
[Diño]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring
Company, issued a delivery receipt for one empty sea van to the truck
driver who had loaded the purportedly empty sea van onto his truck at
the terminal of the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and discovered that
the "empty" sea van had actually contained other merchandise as
well.65 The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime.
Before the Court of Appeals, accused argued in the alternative that he
was guilty only of attempted theft, but the appellate court pointed out that
there was no intervening act of spontaneous desistance on the part of the
accused that "literally frustrated the theft." However, the Court of
Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial
variance" between Diño and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Diño, citing a
"traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional
ruling" was qualified by the words "is placed in a situation where [the
actor] could dispose of its contents at once."66 Pouncing on this
qualification, the appellate court noted that "[o]bviously, while the truck
and the van were still within the compound, the petitioner could not have
disposed of the goods ‘at once’." At the same time, the Court of Appeals
conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime,
where freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the ability
of the actor "to freely dispose of the articles stolen, even if it were only
momentary." Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, "es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea
mas o menos momentaneamente." The qualifier "siquiera sea mas o
menos momentaneamente" proves another important consideration, as it
implies that if the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed
consummated. Such circumstance was not present in
either Diño or Flores, as the stolen items in both cases were retrieved
from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied in
Flores, the character of the item stolen could lead to a different
conclusion as to whether there could have been "free disposition," as in
the case where the chattel involved was of "much less bulk and more
common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following pointed
observation on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when
the thief is able to freely dispose of the stolen articles even if it were more
or less momentary. Or as stated in another case[69 ], theft is
consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of the
thing whereby the thief places it under his control and in such a situation
that he could dispose of it at once. This ruling seems to have been based
on Viada’s opinion that in order the theft may be consummated, "es
preciso que se haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao
and other cases, also states that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing
with intent to appropriate the same, although his act of making use of the
thing was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming
variance with the Diño and Flores rulings. People v. Batoon73 involved an
accused who filled a container with gasoline from a petrol pump within
view of a police detective, who followed the accused onto a passenger
truck where the arrest was made. While the trial court found the accused
guilty of frustrated qualified theft, the Court of Appeals held that the
accused was guilty of consummated qualified theft, finding that "[t]he
facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate
the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital
linen from a supply depot and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen items were discovered by
the Military Police running the checkpoint. Even though those facts
clearly admit to similarity with those in Diño, the Court of Appeals held
that the accused were guilty of consummated theft, as the accused "were
able to take or get hold of the hospital linen and that the only thing that
was frustrated, which does not constitute any element of theft, is the use
or benefit that the thieves expected from the commission of the
offense."76
In pointing out the distinction between Diño and Espiritu, Reyes wryly
observes that "[w]hen the meaning of an element of a felony is
controversial, there is bound to arise different rulings as to the stage of
execution of that felony."77 Indeed, we can discern from this survey of
jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of
the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry, we
have to reckon with the import of this Court’s 1984 decision in Empelis v.
IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four
(4) persons in the premises of his plantation, in the act of gathering and
tying some coconuts. The accused were surprised by the owner within
the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had
seized, and were subsequently arrested after the owner reported the
incident to the police. After trial, the accused were convicted of qualified
theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code,79 but further held that the accused
were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the parties.
What does appear, though, is that the disposition of that issue was
contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because
petitioners were not able to perform all the acts of execution which should
have produced the felony as a consequence. They were not able to carry
the coconuts away from the plantation due to the timely arrival of the
owner.80
No legal reference or citation was offered for this averment, whether
Diño, Flores or the Spanish authorities who may have bolstered the
conclusion. There are indeed evident problems with this formulation in
Empelis.
Empelis held that the crime was only frustrated because the actors "were
not able to perform all the acts of execution which should have produced
the felon as a consequence."81 However, per Article 6 of the Revised
Penal Code, the crime is frustrated "when the offender performs all the
acts of execution," though not producing the felony as a result. If the
offender was not able to perform all the acts of execution, the crime is
attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis
concludes that the crime was
frustrated because not all of the acts of execution were performed due to
the timely arrival of the owner. However, following Article 6 of the Revised
Penal Code, these facts should elicit the conclusion that the crime was
only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of
spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider
the present petition. Even if the two sentences we had cited actually
aligned with the definitions provided in Article 6 of the Revised Penal
Code, such passage bears no reflection that it is the product of the
considered evaluation of the relevant legal or jurisprudential thought.
Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even
cited as authority on theft. Indeed, we cannot see how Empelis can
contribute to our present debate, except for the bare fact that it proves
that the Court had once deliberately found an accused guilty of frustrated
theft. Even if Empelis were considered as a precedent for frustrated theft,
its doctrinal value is extremely compromised by the erroneous legal
premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that
frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870
Codigo Penal de España was then in place. The definition of the crime of
theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su
dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño
causado, salvo los casos previstos en los artίculos 606, núm. 1.0; 607,
núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y
618.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the said
code would be revised again in 1932, and several times thereafter. In
fact, under the Codigo Penal Español de 1995, the crime of theft is now
simply defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será
castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of
Spain, "la libre disposicion" of the property is not an element or a
statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish
jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de España. Therein, he raised
at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or
consummated theft was committed "[e]l que en el momento mismo de
apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that
decision’s factual predicate occasioning the statement was apparently
very different from Diño, for it appears that the 1888 decision involved an
accused who was surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a mannequin, and who then
proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held
to that effect.85 A few decades later, the esteemed Eugenio Cuello Calón
pointed out the inconsistent application by the Spanish Supreme Court
with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro
que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervención de la policia situada en el local donde se
realizó la sustracción que impidió pudieran los reos disponer de lo
sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si existe
apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril
1930; hay frustración "muy próxima" cuando el culpable es detenido por
el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931.
Algunos fallos han considerado la existencia de frustración cuando,
perseguido el culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921;
esta doctrina no es admissible, éstos, conforme a lo antes expuesto, son
hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is
actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposición del agente.
Con este criterio coincide la doctrina sentada últimamente porla
jurisprudencia española que generalmente considera consumado el
hurto cuando el culpable coge o aprehende la cosa y ésta quede por
tiempo más o menos duradero bajo su poder. El hecho de que éste
pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde
su carácter de consumado aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la frustración, pues es muy
dificil que el que hace cuanto es necesario para la consumación del hurto
no lo consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos
delitos consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who
was content with replicating the Spanish Supreme Court decisions on the
matter, Cuello Calón actually set forth his own thought that questioned
whether theft could truly be frustrated, since "pues es muy dificil que el
que hace cuanto es necesario para la consumación del hurto no lo
consume efectivamente." Otherwise put, it would be difficult to foresee
how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept frustrated
theft, as proposed in Diño and Flores. A final ruling by the Court that
there is no crime of frustrated theft in this jurisdiction will not lead to
scholastic pariah, for such a submission is hardly heretical in light of
Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to
look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are,
to accept that theft is capable of commission in its frustrated stage.
Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Diño and Flores doctrines,
the answer has to be in the negative. If we did so, it would arise not out of
obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it
lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal
laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is
Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal laws
where a "narrow interpretation" is appropriate. "The Court must take heed
of language, legislative history and purpose, in order to strictly determine
the wrath and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores dictum.
The ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension
in Article 308, whether as a descriptive or operative element of theft or as
the mens rea or actus reus of the felony. To restate what this Court has
repeatedly held: the elements of the crime of theft as provided for in
Article 308 of the Revised Penal Code are: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the
use of violence against or intimidation of persons or force upon things.90
Such factor runs immaterial to the statutory definition of theft, which is the
taking, with intent to gain, of personal property of another without the
latter’s consent. While the Diño/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by
the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the deprivation from
the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier
cited, that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to appropriate
the same, although his act of making use of the thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of "taking" itself, in that there
could be no true taking until the actor obtains such degree of control over
the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been completed,
the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is
whether there is indeed a crime of frustrated theft, and such
consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are
satisfied beyond reasonable doubt that the taking by the petitioner was
completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of
time that he was able to drop these off at a spot in the parking lot, and
long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same.92 And long
ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of
the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will
be here noted that the definition does not require that the taking should
be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance.94
Insofar as we consider the present question, "unlawful taking" is most
material in this respect. Unlawful taking, which is the deprivation of one’s
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act
of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of
the Revised Penal Code, theft cannot have a frustrated stage. Theft can
only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider
that once the offenders therein obtained possession over the stolen
items, the effect of the felony has been produced as there has been
deprivation of property. The presumed inability of the offenders to freely
dispose of the stolen property does not negate the fact that the owners
have already been deprived of their right to possession upon the
completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the
inability of the offender to freely dispose of the stolen property frustrates
the theft — would introduce a convenient defense for the accused which
does not reflect any legislated intent,95 since the Court would have carved
a viable means for offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is difficult to
formulate definite standards as to when a stolen item is susceptible to
free disposal by the thief. Would this depend on the psychological belief
of the offender at the time of the commission of the crime, as implied in
Diño?
Or, more likely, the appreciation of several classes of factual
circumstances such as the size and weight of the property, the location of
the property, the number and identity of people present at the scene of
the crime, the number and identity of people whom the offender is
expected to encounter upon fleeing with the stolen property, the manner
in which the stolen item had been housed or stored; and quite frankly, a
whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has been
consummated.
All these complications will make us lose sight of the fact that beneath all
the colorful detail, the owner was indeed deprived of property by one who
intended to produce such deprivation for reasons of gain. For such will
remain the presumed fact if frustrated theft were recognized, for therein,
all of the acts of execution, including the taking, have been completed. If
the facts establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the
attempted stage, as not all of the acts of execution have been performed.
But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately
the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common
sense. Yet they do not align with the legislated framework of the crime of
theft. The Revised Penal Code provisions on theft have not been
designed in such fashion as to accommodate said rulings. Again, there is
no language in Article 308 that expressly or impliedly allows that the "free
disposition of the items stolen" is in any way determinative of whether the
crime of theft has been produced. Diño itself did not rely on Philippine
laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases
do not enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them susceptible to
reversal. The same holds true of Empilis, a regrettably stray decision
which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime
of frustrated theft. As petitioner has latched the success of his appeal on
our acceptance of the Diño and Flores rulings, his petition must be
denied, for we decline to adopt said rulings in our jurisdiction. That it has
taken all these years for us to recognize that there can be no frustrated
theft under the Revised Penal Code does not detract from the
correctness of this conclusion. It will take considerable amendments to
our Revised Penal Code in order that frustrated theft may be recognized.
Our deference to Viada yields to the higher reverence for legislative
intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
G.R. No. 209227
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
CHARLIE OROSCO, Accused-Appellant.
DECISION
VILLARAMA, JR., J.:
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 Regional Trial Court of Legazpi City, Branch 10
finding the accused-appellant Charlie Orosco guilty of the crime of
Robbery with Homicide.
Appellant, along with Abner Astor, "John Doe" and "Peter Doe," were
charged with Robbery with Homicide defined and penalized under Article
294 of the Revised Penal Code, as amended. The Information reads as
follows:
That on or about the 16th day of May, 2006, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and helping one another, with
intent of gain and by means 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 City, and once inside
said store, take, steal and carry away cash money, to the damage and
prejudice of said Lourdes Yap, and by reason of or on occasion of said
robbery, and for the purpose of enabling them to take, steal and carry
away the aforesaid cash money in pursuance of their conspiracy, did
then and there [willfully], unlawfully and feloniously and taking advantage
of their superior strength and with 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 prejudice of her
legal heirs.
CONTRARY TO LAW.3
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. James Margallo Belgira who conducted the
autopsy on the cadaver of the victim, and the victim’s grandson, Ryan
Francis Yap.
Arca testified that on May 16, 2006, about one o’clock in the afternoon,
he went to 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 o’clock, he was again sent on errand to buy
ice at the same store. After purchasing the ice, he noticed there was a
verbal tussle between Yap and two male customers. The men were
arguing that they were given insufficient change and insisting they gave a
P500 bill and not P100. When Yap opened the door, the two men entered
the store. From outside the store and thru its open window grills, he saw
one of the men placed his left arm around the neck of Yap and covered
her mouth with his right hand while the other man was at her back
restraining her hands. He recognized the man who was holding the
hands of Yap as Charlie Orosco (appellant), while he described 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 on the floor. Appellant then took a thick wad of bills from
the base of the religious icon or "santo" at the altar infront of the store’s
window, after which he and the man who stabbed Yap fled together with
two other men outside who acted as lookouts. Arca went near the
bloodied victim but also left and went home afraid because he was seen
by one of the lookouts.4
Yap was brought to the Aquinas University Hospital but she was declared
dead on 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 Yap ("John Doe"). From a
surveillance digital photo and video clip shown to him, Arca positively
identified Abner Astor (Astor) as one of the two men sitting beside the
store as lookouts. Consequently, warrants of arrest were issued against
appellant and Astor. But only appellant was arrested as Astor, John Doe
and Peter Doe remained at large.
Dr. Belgira affirmed the findings in his Medico-Legal Report5 stating:
TRUNK:
1)Stab wound, left anterior costal region, measuring 2 x 0.5 cm, 5 cm
from the anterior midline, 9 cm deep. The wound tract is directed
posteriorwards, upwards and medialwards, cutting the sixth anterior
thoracic rib and piercing the heart.
CONCLUSION:
The cause of death is hemorrhagic shock secondary to a stab wound of
the trunk.
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 injuries such as defense wounds.6
For his defense, appellant testified that on the date and time of the
incident, he was at his house in Bigaa taking care of his three-year-old
child while his wife was washing clothes. He stayed in the house until his
wife finished the laundry at past 3:00 p.m. He denied knowing Yap and
his co- accused Astor. While he admitted that he was a resident of Purok
4, Bgy. Rawis, his family transferred to their other house at Bigaa. He
denied knowing Arca and he does not know of any motive for Arca to
testify against him. He worked in a copra company in Lidong but stopped
reporting for work after May 16, 2006 as he was selling fish. He was
arrested by the police at the rotunda in Legazpi when he was buying
medicine for his sick child.7
Appellant’s wife, Teresa Magdaong-Orosco also testified to confirm that
at the time of the incident he was at their house while she was doing the
laundry just adjacent to their house. On cross-examination, she was
asked the distance between their place and Bgy. Rawis and she replied
that it will take less than one hour from Bigaa to Rawis.8
On June 24, 2011, the trial court rendered judgment convicting appellant
of the crime charged, thus:
WHEREFORE, above premises considered, the Court hereby finds
accused Charlie Orosco GUILTY of the crime of robbery with homicide.
He is hereby sentenced to suffer the penalty of reclusion perpetua, to pay
the heirs of Lourdes Yap P75,000.00 as civil indemnity for the fact of
death, P75,000.00 as moral damages and P30,000.00 as exemplary
damages.
Insofar as the other accused is concerned, the case is hereby sent to the
archives, pending their eventual arrest.
SO ORDERED.9
Appellant went to the CA but his appeal was dismissed. The CA upheld
his conviction as it found no compelling reason to deviate from the factual
findings and conclusions of the trial court.
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 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 crime of robbery with
homicide considering the fact that it was not him who stabbed Yap.
The appeal lacks merit.
It is settled that witnesses are to be weighed not numbered, such that the
testimony 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 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
In this case, both the trial and appellate courts found the testimony of the
lone 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 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).
In his direct examination, Arca named appellant as one of those who
robbed and killed Yap but refused to pinpoint him in open court, thus:
ACP NUQUI x x x x
Q.This person who was holding the hands of Lourdes Yap, were you able
to identify him?
A.Yes, sir.
Q.Do you know the name of this person?
A.Yes, sir. He is Charlie.
Q.Do you know the family name? Okay.

A.Orosco, sir. ATTY. BAÑARES

Q.If this Charlie Orosco whom you said was then holding the hands of Your Honor, I move that the prosecutor will transfer to another question
Lourdes Yap, if he is in Court, would you please point to him? because we keep on waiting already.

WITNESS (answering) ACP NUQUI

A.Yes, sir. Your Honor, it is understandable that even he is slow, he keeps on

glancing at the person.
Q.Please look around you and point at him.
COURT
A.He is here.
Observations are all noted.
Q.If he is in Court, please point at him.
xxxx
Q.Why can’t you point at him? COURT INTERPRETER
ACP NUQUI
At this juncture, the witness is somewhat trembling. ACP NUQUI
At this point, Your Honor, I would like to make of record that when it
Oh, you see. ATTY. BAÑARES comes to the person of Charlie Orosco, Your Honor, he stopped and did
not say ---- he did not nod or do anything of what he has been doing
The witness can not answer. ACP NUQUI when the other persons were identified.

By the look of the witness, Your Honor, he is afraid. Perhaps…. COURT

xxxx Okay. Noted.11

ACP NUQUI (continuing) 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 with the two lookouts. When asked for the fourth
Q.Please point at him.
time to pinpoint appellant, Arca was still hesitant:Q.Now, is this Charlie
Orosco here in Court?
ATTY. BAÑARES
A.Yes, sir, he is around.
We have already foreseen the witness to pinpoint at anyone. ACP
NUQUI
Q.This person who took the money or Charlie Orosco you said "he is in
Court," will you please look at him.
No. He said that the…. ATTY. BAÑARES
xxxx
Then, let him voluntarily do it. ACP NUQUI
ACP NUQUI (continuing) Q- You mentioned that you saw two (2) persons talking to Lourdes Yap.
Who are these persons you are referring to?
Q.Is he now in Court?
ATTY. CHAN
A.Yes, sir.
Your Honor please, we are again registering our objection.
Q.Please point at him. ATTY BAÑARES
COURT
The same observation, Your Honor. COURT
Witness may answer.
Oh, the same observation? ACP NUQUI
WITNESS
Yes, Your Honor, he is hesitant. It is understandable because he is
afraid. A- Charlie Orosco and a certain thin person.

xxxx PROSECUTOR NUQUI

COURT (to the witness) Q- Why are you able to say that Charlie Orosco was one of the persons
talking, how long have you known Charlie Orosco?
Q.Why can you not point at Charlie Orosco who according to you he
is inside the Court? A- He always go with a fisherman and act as helper and because of that I
know him.
WITNESS (answering)
xxxx
A.I can’t afford to point at him.
PROSECUTOR NUQUI
ACP NUQUI (to the witness)
Q- You mentioned that you have long known Charlie Orosco. Will
Q.Why? you look around and point to him if he is in Court?

A. I am afraid. INTERPRETER

COURT At this juncture, the witness is pointing to a man wearing a yellow T-

shirt with handcuff and when asked answered by the name of
He can not because he is afraid.12 (Emphasis supplied) Charlie Orosco.

At the next hearing, Arca was recalled to the witness stand and this time PROSECUTOR NUQUI
he was able to pinpoint appellant as among those persons who robbed
and killed Yap, thus: No further questions Your Honor.13

PROSECUTOR NUQUI
Assessing the identification made by Arca, the trial court concluded that
he had positively identified appellant as one of the perpetrators of the
robbery and killing of Yap, viz:
Here, Albert Arca, the prosecution’s main witness, positively identified
accused Orosco as one of [the] two men who robbed and killed Lourdes
Yap on that fateful 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 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 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 Orosco as one of the perpetrators of the
crime. As such, Arca’s act is sufficient identification already.
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 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 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
whatsoever for Arca to lie and attribute the crime to Orosco. Following
settled jurisprudence, Arca’s positive identification of Orosco prevails
over the latter’s alibi.14
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 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 it overlooked,
misunderstood or misapplied some facts or circumstances of weight or
substance which could affect the result of the case.15
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 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 appellant as one of the
perpetrators of the robbery and killing of Yap during his additional direct
examination when he had apparently mustered enough courage to do so.
Robbery with homicide is defined under Article 294 of the Revised Penal
Code, as amended, which provides in part:
Art. 294. Robbery with violence against or intimidation of persons –
Penalties. – Any person guilty of robbery with the use of violence against
or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been
committed, or when the robbery shall have been accompanied by rape or
intentional mutilation or arson.
The elements of the crime of robbery with homicide are: (1) the taking of
personal 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 reason of the robbery or on the occasion
thereof, homicide (used in its generic sense) is committed.16 Homicide is
said to have been committed by reason or on the occasion of robbery if it
is committed (a) to facilitate the robbery or the escape of the culprit; (b) to
preserve the possession by the culprit of the loot; (c) to prevent discovery
of the commission of the robbery; or (d) to eliminate witnesses to the
commission of the crime.17In robbery with homicide, the original criminal
design of the malefactor is to commit robbery, with homicide perpetrated
on the occasion or by reason of the robbery. The intent to commit
robbery must precede the taking of human life. The homicide may take
place before, during or after the robbery.18
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 her money. The earlier verbal tussle where the
two pretended to have paid a greater amount and asked for the correct
change was just a ploy to get inside the store where the victim kept her
earnings. To verify whether the cash payment was indeed a P500 or
P100 bill, the victim let them enter the store but once inside they got hold
of her and stabbed her. Appellant, however, argues that if he had
committed any offense, it was only robbery since Arca testified that it was
John Doe, whom he described as a thin man, who stabbed the victim.
We disagree.
The evidence presented by the prosecution clearly showed that appellant
acted in conspiracy with his co-accused. Appellant and John Doe first
engaged the unsuspecting victim in a verbal altercation until she allowed
them to enter the store. Upon getting inside, they held the victim with
John Doe wrapping his arm around her neck while appellant held her
hands at the back. With the victim pressed between the two of them,
John Doe stabbed her once in her chest before releasing her. Once she
fell down, appellant quickly took the money placed at the altar inside the
store and fled together with John Doe and the two lookouts outside the
store. All the foregoing indicate the presence of conspiracy between
appellant and his co- accused in the perpetration of robbery and killing of
the victim.
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 grabbed her at the neck. His act contributed in
rendering the victim without any 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 Yap.
As we held in People v. Baron19
The concerted manner in which the appellant and his companions
perpetrated the crime showed beyond reasonable doubt the presence of
conspiracy. When a homicide takes place by reason of or on the
occasion of the robbery, all those who took part shall be guilty of the
special complex crime of robbery with homicide whether they
actually participated in the killing, unless there is proof that there
was an endeavor to prevent the killing.There was no evidence
adduced in this case that the appellant attempted to prevent the killing.
Thus, regardless of the acts individually performed by the appellant and
his co-accused, and applying the basic principle in conspiracy that the
"act of one is the act of all," the appellant is guilty as a co-conspirator. As
a result, the criminal liabilities of the appellant and his co-accused are
one and the same. (Emphasis supplied)
In sum, the CA did not err in affirming the conviction of appellant for
robbery with homicide. Appellant was positively identified by prosecution
eyewitness Arca as among those who perpetrated the robbery and killing
of Yap at the latter’s store on May 16, 2006 in Bgy. Rawis, Legazpi City.
This positive identification prevails over accused’s defense of alibi. As
pointed out by the trial court, it was not physically impossible for appellant
to be at the scene of the crime considering the presence of many public
conveyances which would drastically cut the one hour walk from Bigaa to
Rawis to only a "couple of minutes."20
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 indemnity for the fact of death and P75,000.00 as
moral damages, conformably with prevailing jurisprudence.21 We also find
the award of exemplary damages in the amount of P30,000.00 proper
due to the presence of the aggravating circumstances of treachery and
abuse of superior strength, though these were not alleged in the
information. While an aggravating circumstance not specifically alleged in
the information (albeit established at trial) cannot be appreciated to
increase the criminal liability of the accused, the established presence of
one or two aggravating circumstances of any kind or nature entitles the
offended party to exemplary damages under Article 2230 of the Civil
Code because the requirement of specificity in the information affected
only the criminal liability of the accused, not his civil liability.22
The aforesaid sums shall earn the legal interest at the rate of six percent
(6%) per annum from the finality of judgment until full payment.
WHEREFORE, the appeal is DISMISSED. The Decision dated March 22,
2013 of the 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 (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.
With costs against the accused-appellant.
SO ORDERED
G.R. No. 200308 February 23, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MERA "JOY" ELEUTERIO NIELLES, @ MERA NIELLES DELOS
REYES, Accused-Appellant.
RESOLUTION
DEL CASTILLO, J.:
Appellant Mera Joy Eleuterio Nielles @Mera Nielles Delos Reyes was
charged with the crime of Qualified Theft in an Information that reads as
follows:
That on or about and sometime in July, 2004 in the City of Makati,
Philippines and a place within the jurisdiction of this Honorable Court, the
above-named accused, being then the cashier of complainant Juanita J.
Flores and as such enjoying the trust 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 confidence, did
then and there willfully, unlawfully and feloniously take, steal, and carry
away collected money in the total amount of ₱640,353.86 to the damage
and prejudice of the complainant, in the aforementioned amount of
₱640,353.86. CONTRARY TO LAW.1
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 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 pleaded not guilty to the
charges.3
Trial on the merits ensued.
The prosecution established that private complainant Juanita Flores
(Flores) was engaged in the business of guaranteeing purchase orders
and gift checks of Shoemart 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’ 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 presentment due to
"account closed." Appellant thereafter absconded.
For her part, appellant denied having stolen the amount of ₱640,353.86.
Ruling of the Regional Trial Court (RTC)
In a Judgment4 dated March 26, 2008, the RTC of Makati City, Branch
132, found appellant guilty of the crime of qualified theft, thus:
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 intent to gain because when the accused’s checks
bounced, she failed to remit or 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 of
confidence reposed [by] private complainant [upon] her. Thus, the
elements of theft, as well as the circumstances that made the same as
qualified theft, are present in the instant case.
Accused Nielles, on the other hand, denied having stolen and carried
away ₱640,353.86. Aside from her bare denial, she did not present any
evidence to support this claim. In fact, she did not deny that the checks
were issued and deposited by her. Furthermore, she did not provide any
reason or motive why Juanita would file the present case against her.
Accordingly, her denial has no basis and deserves no consideration.5
The dispositive portion of the RTC Judgment reads:
WHEREFORE, the Court finds the accused, Mera "Joy" Eleuterio Nielles
a.k.a. Mera 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
actual damages.
SO ORDERED.6
Aggrieved, appellant filed a notice of appeal. At the same time, she
submitted a Renewal Certificate7 of her bond effective for the period
January 18, 2008 to January 18, 2009.
Ruling of the Court of Appeals (CA)
In her Brief, appellant asserted that since private complainant Flores was
abroad on July 15, 2004, she could not have personally known whether
appellant indeed collected amounts from the sub-guarantors. She posited
that mere issuance of the 15 checks is not proof that she
received/collected payments from the sub-guarantors 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-
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 between them; and that thereafter, when she went
to these sub-guarantors to collect their dues for private complainant,
these sub-guarantors used the same checks she previously issued as
their payment for private complainant. For that reason her personal
checks were deposited in private complainant’s account.
The CA, however, in its Decision8 dated May 26, 2011, was not
impressed by 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 satisfactorily established that upon her arrival
in the Philippines, she immediately investigated the matter and talked to
the sub-guarantors. Flores also confirmed that indeed appellant issued
15 personal checks in lieu of the amounts collected and deposited the
same to Flores’ account but were all dishonored upon presentment.
Significantly, the CA noted that aside from her bare denial, appellant did
not present any evidence to support her claim that she did not steal the
amount of ₱640,353.86 from Flores. In fine, the CA found all the
elements for the crime of qualified theft to be present.
Thus, the CA affirmed with modification the ruling of the trial court, viz:
WHEREFORE, premises considered, the instant Appeal is hereby
DENIED. Accordingly, the assailed 26 March 2008 Decision of the
Regional Trial Court of Makati City, Branch 132 in Criminal Case No. 04-
3643 is AFFIRMED with MODIFICATION. Accused-appellant is hereby
sentenced to suffer the penalty of reclusion perpetua. She is further
ordered to pay Private Complainant the amount of ₱640,353.86.
SO ORDERED.9
Hence, this appeal. In a Resolution10 dated April 18, 2012, we required
both parties to file their Supplemental Briefs. The Office of the Solicitor
General manifested that 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 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 that, at most, the issuance of the checks proves that the same was
issued for consideration. On February5, 2013, appellant furnished this
Court her bond renewal certificate12 issued by Far Eastern Surety &
Insurance Co., Inc. effective for the period January 18, 2013 to January
18, 2014.
Our Ruling
We concur with the findings of the trial court and the Court of Appeals
that the prosecution satisfactorily established all the elements of qualified
theft, to wit: 1) taking of personal property;2) that said property belongs to
another; 3) that the said taking was done with intent to gain; 4) that it was
done without the owner’s consent; 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 confidence.13 As
correctly found by the appellate court:
Private complainant testified that Accused-appellant took the amount of
₱640,353.86 from her without her consent by failing to turn over the
amount she collected from the former’s sub-guarantors. Instead, she
issued fifteen (15) personal checks and deposited the same to Private
Complainant’s account which however, all bounced for the reason
"account closed". The taking of the amount collected by Accused-
appellant was obviously done with intent to gain as she failed to remit the
same to Private Complainant. Intent to gain is presumed from the act of
unlawful taking. Further, the unlawful act was accomplished by Accused-
appellant without the 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-guarantors as she was known to be
entrusted with the collection of payments.
The circumstance of grave abuse of confidence that made the same as
qualified theft was also proven. Accused-appellant herself testified that
1âw phi1
as a cashier, her functions and responsibilities include billings and
collections from their agents and 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 consent
of Private Complainant. It is beyond doubt that an employee like a
cashier who comes into possession of the monies she collected enjoys
the confidence reposed in her by her employer, as in the instant case.14
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 her cross-examination, private complainant
Flores testified that upon having been apprised of the unremitted
collections, she conducted an investigation and inquired from her sub-
guarantors who admitted making payments to appellant.15 She also
testified during cross-examination that when appellant arrived from
Hongkong, the latter went to Flores’ office and admitted to having
converted the collections to her personal use.16 Interestingly, when it was
her turn to testify, appellant did not rebut Flores’ testimony. During her
direct examination, appellant only testified thus:
Atty. Regino – Question:
Madam Witness, you are being charged here with taking, stealing and
carrying away collected money in the total amount of ₱640,353.86, that is
owned by Juanita J. Flores. What can you say about this allegation?
Witness:
That is not true, sir.
Atty. Regino – Question:
What is your basis in stating that?
Witness:
I never took that six hundred forty thousand that they are saying and, I
never signed any document with the sub-guarantors that I [took] money
from them.17
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 counsel no longer made further clarifications or
follow-up questions. Thus, Flores’ testimony on this fact remains on
record unrebutted. Clearly, it is futile on the part of the appellant to
belatedly claim in her Brief before the appellate court that the prosecution
should have presented these sub-guarantors so they could be cross-
examined.18 There is likewise no merit in her contention that the
prosecution is guilty of suppression of evidence when they did not
present these sub-guarantors19 simply because the defense, on its own
initiative, could very well compel, thru the compulsory processes of the
court, the attendance of these sub-guarantors as witnesses.20 Moreover,
we note that appellant did not even attempt to discredit the testimony of
Flores to the effect that upon her arrival from Hongkong, appellant went
to Flores’ office and admitted to having committed the offense.
Significantly, when appellant was placed on the witness stand, she did
not even make any attempt to explain her issuance of the 15 checks. In
fact, during her entire testimony, she never made any mention about the
personal checks that she issued and deposited in Flores’ account. It was
only in her Memorandum21 filed with the trial court and her
Brief22 submitted to the appellate court that the same was discussed.
However, her explanation as to its issuance is so convoluted that it defies
belief. All that appellant could claim is that the issuance of the checks
only proves that the same 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 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 belonging to Flores, how come she issued 15 personal
checks in favor of the latter and deposited the same in her account, albeit
they were subsequently dishonored? 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 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.
We also concur with the findings of the trial court and the CA that the
prosecution 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 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 grave abuse of
confidence.
Anent the penalty imposed, Articles 309 and 310 of the Revised Penal
Code state:
Art. 309. Penalties. Any person guilty of theft shall be punished by:
The penalty of prision mayor in its minimum and medium periods, if the
value of the thing stolen is more than 12,000 pesos but does not exceed
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 paragraph, and one year for each additional ten thousand pesos,
but the total penalty which may be imposed shall not exceed 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 shall be termed prision mayor or reclusion temporal, as
the case may be.
Finally, we note that appellant has not yet been committed to prison. In
view thereof and based on our foregoing discussion, appellant must be
ordered arrested and committed to prison to start serving her sentence.
ACCORDINGLY, the assailed May 26, 2011 Decision of the Court of
Appeals in CA-G.R. CR No. 31635 is AFFIRMED. The Regional Trial
Court of Makati City, Branch 132 is DIRECTED to issue a warrant for the
arrest of appellant and to order her commitment 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
Superintendent, Correctional Institution for Women is DIRECTED to
confirm to this Court the confinement of appellant within ten (10) days
therefrom.
SO ORDERED.

xxxx

Art. 310. Qualified theft. The crime of theft shall be punished by the
penalties next 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 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 if property is
taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or
any other calamity, vehicular accident or civil disturbance.

Based on the foregoing, since the amount taken is ₱640,353.86, then the
imposable penalty shall be the maximum period of prision mayor in its
minimum and medium periods, or eight(8) years, eight (8) months and
one (1) day to ten (10) years, adding one (1) year for each additional
₱10,000.00. Thus, from ₱640,353.86, we deduct ₱22,000.00, giving us a
balance of ₱618,353.86 which we divide by ₱10,000.00. We 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, the imposable penalty for simple theft should not
exceed a total of twenty (20) years. Thus, if appellant had committed only
simple theft, her penalty would be twenty (20) years of reclusion
temporal. Considering however that in qualified theft, the penalty is two
degrees higher, then the appellate court properly imposed the penalty of
reclusion perpetua.24
G.R. No. 203583 October 13, 2014
LEONORA B. RIMANDO, Petitioner,
vs.
SPOUSES WINSTON and ELENITA ALDABA and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review on certiorari assailing the
1
Decision2 dated July 25, 2012 and the Resolution3 dated September 25,
2012 of the Court of Appeals (CA) in CA-G.R. CV No. 96528, which
affirmed the Decision4 dated October 28, 2010 of the Regional Trial Court
of Manila, Branch 15 (RTC) in Criminal Case No. 04-227211 acquitting
petitioner Leonora B. Rimando (Rimando) of the crime of estafa, but
nonetheless, held her civilly liable to respondents-spouses Winston and
Elenita Aldaba (Sps. Aldaba) in the amount of ₱500,000.00. The Facts
An Information dated January 21, 2004 was filed before the RTC
charging Rimando of the crime of estafa through the use of false
manifestations and fraudulent representations (estafa case).5 According
to the prosecution, Rimando enticed Sps. Aldaba to invest in her
business under the assurance that it is stable and that their money would
earn 8% monthly interest.6 Convinced by Rimando’s proposal and 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. Aldaba three (3) postdatedchecks, one for
₱500,000.00 and the other two (2) for ₱40,000.00 each, and made them
sign an investment contract with Multitel International Holding
Corporation (Multitel). Upon maturity of the checks, Sps. Aldaba
attempted to encash the same but were dishonored for being drawn
against insufficient funds.7 This prompted Sps. Aldaba to demand
Rimando to make good the said checks, but to no avail. Hence, they
were constrained tofile a criminal complaint for estafa against her.8
In her defense, Rimando denied her friendship with Sps. Aldaba and that
she enticed them to invest in her own business, as she had none.
According to her, she only referred them to Multitel Investment Manager
Jaimelyn9Cayaban who handled their investment.10 She also maintained
that she only issued the three (3) post dated 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 Batas Pambansa Bilang (BP) 2212 before the Metropolitan
Trial Court of Manila, Branch VI, docketed as Crim. Cases Nos. 407191-
193 (BP 22 cases).13 On July 7, 2010, Rimando was acquitted14 in the BP
22 cases on the ground of reasonable doubt, with a declaration that the
act or omission from which liability may arise does not exist.
The RTC Ruling
In a Decision15 dated October 28, 2010, the RTC acquitted Rimando of
the crime of estafa, but found her civilly liable to Sps. Aldaba in the
amount of ₱500,000.00. It 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. Nevertheless, the RTC
ruled that as an accommodation party to one of the checks she issued to
Sps. Aldaba on behalf of Multitel, Rimando should be heldliable to Sps.
Aldaba for the corresponding amount of ₱500,000.00.16Aggrieved,
Rimando appealed to the CA. In her Appellant’s Brief17 dated October 29,
2011, she contended that her acquittal and exoneration from the civil
liability in the BP 22 cases should have barred Sps. Aldaba from claiming
civil liability from her in the estafa case.18
The CA Ruling
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 prosecution for estafa, albeit they may both involve
the same parties and transaction. As such, Rimando’s acquittal and
subsequent exoneration from civil liability in the BP 22 cases does not
automatically absolve her from civil liability in the estafa case.20
Rimando moved for reconsideration, which was, however, denied in a
Resolution21 dated September 25, 2012, hence, this petition.
The Issue Before the Court
The primordial issue for the Court’s resolution is whether or not the CA
correctly upheld Rimando’s civil liability in the estafa case despite her
acquittal and exoneration from civil liability in the BP 22 cases.
 The Court’s Ruling
The petition is without merit.
At the outset, the Court notes that Rimando’s acquittal in the estafa case
does not necessarily absolve her from any civil liability to private
complainants, Sps. Aldaba. It is well-settled that "the acquittal of the
accused does not automatically preclude a judgment against him on the
civil aspect of the case. The extinction of the penal action does not carry
with it the extinction of the civil liability where: (a) the acquittal is based
on reasonable doubt as only preponderance of evidence is required; (b)
the 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 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 from which the
civil liability may arise did not exist or where the accused did not commit
the acts or omission imputed to him."22
In this case, Rimando’s civil liability did not arise from any purported act
constituting the crime of estafa as the RTC clearly found that Rimando
never employed any deceit on Sps. Aldaba to induce them to invest
money in Multitel. Rather, her civil liability was correctly traced from being
an accommodation party to one of the checks she issued to Sps. Aldaba
on behalf of Multitel. In lending her name to Multitel, she, in effect, acted
as a surety to the latter, and assuch, she may be held directly liable for
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 charged with, and hence, the CA correctly upheld
the same despite her acquittal in the estafa case.
In this relation, the CA is also correct in holding that Rimando’s acquittal
and subsequent exoneration in the BP 22 cases had no effect in the
estafa case, even if both cases were founded on the same factual
circumstances. In Nierras v. Judge Dacuycuy,24 the Court laid down the
fundamental differences between BP 22 and estafa, to wit:
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. Under the
1âw phi 1
latter law, mere issuance of a check 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 is not so
under the Penal Code. Other differences between the two also include
the following: (1) a drawer of a dishonored check may be convicted under
Batas 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 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
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, while those of Batas Pambansa Bilang 22 are
mala prohibita.25
Owing to such differences, jurisprudence in People v. Reyes26 even
instructs that the simultaneous filing of BP 22 and estafa cases do not
amount to double jeopardy:
While the filing of the two sets of Information under the provisions of
Batas Pambansa Bilang 22 and under the provisions of the Revised
Penal Code, as amended, on estafa, may refer to identical acts
committed by the petitioner, the prosecution thereof cannot be limited to
one offense, because a single criminal act may give rise to a multiplicity
of offenses and where there is variance or differences between the
elements of an offense is one law and another law as in the case at bar
there will be no double jeopardy because what the rule on double
jeopardy prohibits refers to identity of elements in the two (2) offenses.
Otherwise stated, prosecution for the same act is not prohibited. What is
forbidden is prosecution for the same offense. Hence, the mere filing of
the two (2) sets of information does not itself give rise to double
jeopardy.27
Essentially, while a BP 22 case and an estafa case may be rooted from
an identical set of facts, they nevertheless present different causes of
action, which, under the law, 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 aspects – subject to
the prohibition on double recovery.28 Perforce, a ruling in a BP 22 case
concerning the criminal and civil liabilities of the accused cannot be given
any bearing whatsoever in the criminal and civil aspects of a related
estafa case, as in this instance.
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated
July 25, 2012 and the Resolution dated September 25, 2012 of the Court
of Appeals in CA-G.R. CV No. 96528 are hereby AFFIRMED.SO
ORDERED.
G.R. No. 197539 June 2, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ANGELITA I. DAUD, HANELITA M. GALLEMIT and RODERICK
GALLEMIT y TOLENTINO, Accused.
RODERICK GALLEMIT y TOLENTINO, Accused-appellant.
DECISION
LEONARDO-DE CASTRO, J.:
For Our consideration is an appeal from the Decision1 dated March 18,
2011 of the Court of Appeals in CA-G.R. CR.-H.C. No. 03168, which
affirmed the Joint Decision2 dated January 15, 2007 of the Regional Trial
Court (RTC), Parañaque City, Branch 195, in Criminal Case Nos. 03-
0122 to 30, finding accused-appellant Roderick Gallemit y Tolentino
guilty of the crimes of ( 1) illegal recruitment in large scale, as defined
and penalized under Article II, Section 6, in relation to Section 7(b) of
Republic Act No. 8042, otherwise known as the "Migrant Workers and
Overseas Filipinos Act of 1995;" and (2) estafa, as defined and penalized
under Article 315, paragraph 2(a) of the Revised Penal Code, but
modified the penalties imposed upon appellant for said crimes.
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 Gallemit y Tolentino were charged before the RTC
with illegal recruitment in large scale, allegedly committed as follows:
That on or about or sometime during the period from February 5, 2001 to
August 2001, in the City of Parañaque, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and both of them mutually helping
and aiding one another, representing themselves to have the capacity to
contract, enlist and transport Filipino workers for employment abroad, did
then and there willfully, unlawfully and feloniously, for a fee, recruit and
promise employment abroad to complainants Marcelo De Guzman,
Evangeline Relox, Maricel Rayo, Brigida Rayo, Gina Decena, Nenita
Policarpio, Myrna Crisostomo and Francisco Poserio, without first
securing the required license or authority from the Department of Labor
and Employment thus deemed committed 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. Rayo, Gina T. Decena
(Decena), Nenita F. Policarpio, Myrna S. Crisostomo and Francisco S.
Poserio (Poserio), respectively.
The Information in Criminal Case No. 03-0123 alleged:
That on or about covering the period from February 2001 up to March
2001, in the City of Parañaque, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating together and all of them 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 he would
deliver to them the amount of ₱545,000.00 by means of other similar
deceit 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 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 and prejudice of the
said MARCELODE GUZMAN y IGNACIO in the aforementioned amount.4
The seven other Informations in Criminal Case Nos. 03-0124 to 03-0130
were 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:
Docket No. Private Complainant Amount Collected
Crim. Case No. 03-01245 Evangeline I. Relox, ₱25,000.00
Crim. Case No. 03-01256 Marcelo E. Rayo ₱45,000.00
Crim. Case No. 03-01267 Brigada A. Rayo ₱28,000.00
Crim. Case No. 03-01278 Gina T. Decena ₱70,000.00
Crim. Case No. 03-01289 Nenita F. Policarpio ₱50,000.00
Crim. Case No. 03-012910 Myrna S. Crisostomo ₱24,500.00
Crim. Case No. 03-013011 Francisco S. Poserio ₱70,000.00
Only appellant was apprehended, while his co-accused Daud and
Hanelita eluded arrest and remained at large.
The nine criminal cases against appellant before the RTC were
consolidated. When arraigned, appellant pleaded not guilty to all the
charges against him. Thereafter, joint trial of the nine criminal cases
ensued.
The prosecution offered as evidence the Philippine Overseas
Employment Administration (POEA) Certification dated September 19,
2002 stating that Green Pasture Worldwide Tour and Consultancy, with
address at India St., Don Bosco, Parañaque City, set up and operated by
appellant and his co-accused, is not licensed to recruit workers for
overseas employment.12
Of all the private complainants, only De Guzman, Decena, and Poserio
testified against Gallem it. The presentation of a POEA representative
was dispensed with after the defense admitted the due execution and
genuineness of the POEA Certification dated September 19, 2002.13
Evidence for the defense consisted solely of appellant’s testimony.
After trial on the merits, the RTC rendered its Decision dated January 15,
2007 finding appellant guilty of Illegal Recruitment in Large Scale and
Estafa on three (3) counts. The dispositive portion of the judgment reads:
WHEREFORE, judgment is hereby rendered as follows:
(1) In Criminal Case No. 03-0122, the Court finds
accused Roderick Gallemit y Tolentino, GUILTY
BEYOND REASONABLE DOUBT as principal of the
crime of Illegal Recruitment in Large Scale in violation of
Section 6 in relation to Section 7 of RA 8042, otherwise
known as the Migrant Workers and Overseas Filipinos Act
of 1995 and hereby sentences him to a penalty of life
imprisonment and a fine of Five Hundred Thousand
Pesos (₱500,000.00).
(2) In Criminal Case No. 03-0123, the Court finds
accused Roderick Gallemit y Tolentino GUILTY BEYOND
REASONABLE DOUBT as principal of the crime of Estafa
under Article 315 paragraph 2(a) of the Revised Penal
Code and hereby sentences him to suffer the
Indeterminate Penalty of two (2) years and four (4)
months as minimum to thirteen (13) years as maximum
which carries with it 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 sentenced to
pay complaining witness Marcelo De Guzman y Ignacio
the amount of Eighty Thousand Pesos (₱80,000.00) plus
twelve percent (12%) interest from the date of the filing of
the Information on February 3, 2003, with subsidiary
imprisonment in case of insolvency, plus the costs of suit;
(3) In Criminal Case No. 03-0127,the Court finds accused
Roderick Gallemit y Tolentino GUILTY BEYOND
REASONABLE DOUBT as principal of the crime of Estafa
under Article 315 paragraph 2(a) of the Revised Penal
Code and hereby sentences him to suffer the
indeterminate Penalty of two (2) years, four (4) months as
minimum to nine (9) years as maximum which carries with
it 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 sentenced to pay the
costs of suit; and
(4) In Criminal Case No. 03-0130, the Court finds
accused Roderick Gallemit y Tolentino GUILTY BEYOND
REASONABLE DOUBT as principal of the crime of Estafa
under Article 315 paragraph 2(a) of the Revised Penal
Code and hereby sentences him to suffer the
Indeterminate Penalty of two (2) years and four (4)
months as minimum to twelve (12) years and two (2)
months as maximum which carries with it 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 sentenced to pay costs of suit.
(5) Criminal Case Nos. 03-0124, 03-0125, 03-0126, 03-
0128, and 03-0129, for failure to prosecute, are hereby
ordered Dismissed, as against accused Roderick
Gallemit.
Considering that accused ANGELITA I. DAUD and HANELITA M.
GALLEMIT remain at large for more than six (6) months since the
issuance and delivery of the warrant of arrest to the proper police or
peace officer, the cases against them are hereby ordered ARCHIVED
pursuant to Administrative Circular No. 7-A-92. Let an alias warrant of
arrest be issued against them.14
Following the denial of his Motion for Reconsideration by the RTC in an
Order15 dated April 3, 2007, appellant filed an appeal before the Court of
Appeals.
The Court of Appeals summarized the private complainants’ testimonies
against appellant, viz:
Marcelo de Guzman[(De Guzman)], a dentist by profession with a clinic in
Bulacan, testified that sometime in January 2001, he was introduced by
his patient Modesta Marqueda to her cousin, accused [Daud]. [Daud]
encouraged [De Guzman] to apply 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] invited him to
visit her office located at Taft Avenue, Manila.
A month later, [De Guzman] and his cousins Maricel Rayo, Brigida Rayo,
Myrna Crisostomo, Francisco Poserio, Evangeline Relox, [Decena] and
Nenita Policarpio, wentto see [Daud] at the Jemimah International
Manpower Services, located at Taft Avenue, Manila where the latter was
then working as a liaison officer. The group was shown job orders and
photos of [Daud] with Korean employees to prove that she was indeed
sending workers abroad. It was at this office that [De Guzman] first met
[appellant] and [Hanelita].
Meanwhile, [Daud], together with [Hanelita] and [appellant], put up their
own business named Green Pastures Worldwide Tours and Consultancy
Corporation in their residence at No. 4 Sta. Maria Apartment, India St.,
Better Living Subdivision, Barangay Don Bosco, Parañaque City.
Having been convinced by the documents shown to him at the Taft
Avenue office, [De Guzman] paid [Daud] the amount of ₱35,000[.]00 as
initial payment for his placement fee at the latter’s office and residence in
Parañaque City on February 2, 2001. On February 5, 2001, [De Guzman]
gave [Daud] the amount of ₱15,000[.]00 which was witnessed by
Hanelita. He gave another ₱15,000.00 on February 22, 2001. However,
he lost the original receipts.
On March 3, 6 and 7, 2001, [De Guzman] again gave [Daud] x x x
different amounts 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 money, issued receipts therefor
as "processing fees of Nike applicants", affixed her signature after signing
the receipts in the name of "Nimfa Min". [Daud] explained to him that
"Nimfa Min" was her contact who happened to be the wife of a Korean
national. [De Guzman] trusted [Daud] and accepted her explanation.
Whenever he 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 members of the same
family. [De Guzman] was told by [Daud] and [appellant] that he and his
group would be leaving in two week’s time.
[De Guzman] and his companions were instructed to appear before the
Korean 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, overtime pay, with benefits of free board and
lodging and 30-day leave within a year. De Guzman’s group were shown
photocopies of their passport and stamped visas for Korea. However,
they were not given their working permits and job contracts.
When their departure date was getting near, [Daud] postponed it thrice.
Eventually, [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 was fake. He proceeded to the
Philippine Overseas Employment Administration (POEA) and verified the
registration of Green Pastures Worldwide Tour and Consultancy
Corporation. The POEA informed them that it was not registered with the
POEA and gave[De Guzman] a certification to the effect that the said
agency was not licensed to recruit employees for abroad (Exhibit D).
Embarrassed because of the money given by his cousins, [De Guzman]
verbally asked [Daud], Hanelita and [appellant] to return the money. They
promised him that they would settle the matter but they failed to return
the money. x x x.
Gina Decena, for her part testified that sometime in January 2001, she
was introduced by her cousin, Maricel Rayo, to accused [Daud],
[Hanelita] and [appellant], at the Makati Medical Towers where Maricel
had her medical examination. [Decena] again met the three accused at
their office at No. 4 Sta. Maria Apartment, Better Living Subdivision,
Parañaque City when Maricel obtained a copy of her medical certificate.
They enticed [Decena] to apply at their agency by showing her job orders
that offered $400 [a] month salary, 150% overtime pay, free board and
lodging as well as photographs of prospective Korean employers.
[Appellant] even gave her a copy of the job order. The three accused
assured [Decena] that they had already sent several applicants for
employment abroad. Convinced, [Decena] and her husband Marcelo
Rayo applied at their agency. They were instructed to undergo medical
examination, to attend a Korean Language seminar, and to pay
₱70,000.00 processing fee.
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 receipt for ₱35,000.00 which was received
and signed by [Daud].
Thereafter, the couple were told to wait for two weeks for the processing
of their visas. As two weeks have passed and nothing happened to their
applications, [Decena] and her husband went to the POEA to verify the
status of the agency. They 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 accused but they were
all gone. They later came to know, through [De Guzman], that [appellant]
was apprehended. She identified her sworn statement in court.
Sometime in January 2001, Francisco Poserio [(Poserio)] was brought
along by his cousin [De Guzman] to No. 4 Sta. Maria Apt., India St.,
Better Living Subdivision, Barangay Don Bosco, Parañaque City. While
thereat, [De Guzman] introduced [Daud], Hanelita and [appellant] as the
owners of Green Pastures Worldwide Tours and Consultancy and that
they were sending workers to Korea. The three accused 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 overtime work and vacation leave of thirty (30) days in a two-year
contract. To convince [Poserio] that they can send workers to Korea, they
showed him job orders from Hyundai Group and Nike requiring workers
for Korea, a copy of a Korean visa of one of their job applicants, and
photos of [Daud] in Korea with a Korean national who would be
[Poserio]’s prospective employer if he applied with their agency. Further,
he would be able to earn back his placement fee in three months work.
Enticed, [Poserio] mortgaged his property to get funds for his job
application. [Daud] and Hanelita informed him to undergo a medical
examination and seminar and even 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 ₱100,000.00 as
processing fee for his job application. On March 3, 2001, he gave his
down payment of ₱25,000.00 to [Daud] in the presence of Hanelita and
[appellant]. He was told to wait for two weeks for the processing of his
papers. On July 2001, he was informed that additional amount was
needed to process his papers. Thus, on July 5, 2001, he gave
₱45,000.00 as additional payment to [Daud] in the presence of Hanelita.
He was again told to wait for another three weeks. He was even
promised that they would return his money if he would notbe sent abroad.
A year after his payment, [Poserio] was still not able to leave the country.
Upon verification with the POEA, he and the other job applicants
discovered that the said agency was not licensed to recruit workers for
overseas employment. He talked over the phone with the accused and
demanded the return of his money. When they failed to return his money,
he filed a complaint with the Parañaque police.
All three complainants positively identified [appellant] in court.16 (Citations
omitted.)
The Court of Appeals similarly provided a gist of appellant’s testimony,
thus:
Roderick Gallemit [(appellant)] denied owning the agency, undertaking
any recruitment act or receiving any amount from the complainants
considering that his name did not appear in the receipts. He admitted that
he is married to co-accused [Hanelita] and that co-accused [Daud] is his
mother-in-law.
He knew private complainants [De Guzman] and [Poserio] who were
introduced to him by [Daud] who was then working as a liaison officer at
Jemimah International 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 the job seekers
applying at the Jemimah International Manpower Services where [Daud]
worked. [Daud] told him that private complainant [De Guzman] is her
business partner. [Poserio] was one of those applying for a job abroad
and [De Guzman] would refer them to [Daud]. Thus, [De Guzman]
frequented their apartment in Parañaque.
He admitted that, from February 2001 to August 2001, he had been
staying at the apartment in India Street, Better Living Subdivision,
Parañaque City he shared with his wife Hanelita, their child and his
mother-in-law [Daud]. He and his wife were not employed since they
were applying for a job abroad. His siblings help him out by sending him
money for his job application. He was aware that his mother-in-law
[Daud] was a recruiter and owned an agency named Green Pasture
Worldwide Travel and Tours which she operated in the same apartment.
He claimed that [Daud] has only one employee, a certain Badjong, who
processed documents. At first he did not apply with [Daud] because her
business was still new. He applied with her when she convinced him that
she could process his passport and papers to Korea.
He denied he was present when the complainants gave their payments to
[Daud]. He 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. x x x.17 (Citations omitted.)
In its Decision dated March 18, 2011,the Court of Appeals affirmed
appellant’s conviction by the RTC, but modified the indeterminate
penalties imposed on appellant for the three counts of estafa. The
appellate court decreed:
WHEREFORE, the appealed decision finding accused-appellant
RODERICK GALLEMIT y TOLENTINO guilty beyond reasonable doubt of
Illegal Recruitment in Large Scale and of Estafa is AFFIRMED with
modification with respect to the indeterminate penalties imposed on
appellant for the three counts of estafa, to wit:
(1) In Criminal Case No. 03-0123, appellant is sentenced
to suffer the indeterminate penalty of two (2) years and
four (4) months of prision correccional as minimum to
thirteen (13) years of reclusion temporal as maximum.
(2) In Criminal Case No. 03-0127, appellant is sentenced
to suffer the indeterminate penalty of two (2) years and
four (4) months of prision correccional as minimum to
nine (9) years of prision mayor as maximum.
(3) In Criminal Case No. 03-0130, appellant is sentenced
to suffer the indeterminate penalty of two (2) years and
four (4) months of prision correccional as minimum to
twelve (12) years of prision mayor as maximum.
In all other respects, the assailed Decision is AFFIRMED.18
Hence, appellant comes before us via the instant appeal with the same
assignment of errors which he raised before the Court of Appeals:
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF LARGE-SCALE ILLEGAL
RECRUITMENT AND ESTAFA DESPITE THE
PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF ESTAFADESPITE THE ABSENCE
[OF] THE ELEMENT OF DECEIT.
Illegal recruitment in large scale
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 to send them abroad for work such that they
were convinced to part with their money. Any encouragement or promise
of employment abroad was solely made by Daud. Appellant points out
that it was only his alleged presence at the time private complainants
were making their payments to Daud that led said private complainants to
believe that appellant participated in the recruitment scheme.
The Office of the Solicitor General, as counsel for the appellee, insists
that appellant acted in conspiracy with his co-accused in engaging in
illegal recruitment activities, specifically performing the following acts: (1)
Appellant, together with his co-accused, owned and operated Green
Pasture Worldwide Tour and Consultancy Corporation; (2) Appellant,
together with his co-accused, encouraged private complainants to apply
for jobs abroad with their agency, promising private complainants salary
of US$400.00, 150% overtime pay, and free board and lodging; (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) Appellant was present everytime private
complainants made payments to his co-accused Daud. In addition,
private complainants De Guzman, Decena, and Poserio positively
identified and pointed to appellant in court as one of the persons who
recruited them for work abroad.19
Article 13(b) of the Labor Code defines recruitment and placement as
"any act of canvassing, enlisting, contracting, transporting, utilizing, hiring
or procuring workers; and includes referrals, contract services, promising
or advertising for employment, 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 purposes.20
Republic Act No. 8042 broadened the concept of illegal recruitment under
the Labor Code and provided stiffer penalties, especially for those that
constitute economic sabotage, i.e., Illegal Recruitment in Large Scale
and Illegal Recruitment Committed by a Syndicate.
Section 6 of Republic Act No. 8042 defined illegal recruitment as follows:
SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall
mean any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring, or procuring workers and includes referring, contract services,
promising or advertising for employment abroad, whether for profit or not,
when undertaken by a non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the Philippines:
Provided, That any such non-licensee or non-holder who, in any manner,
offers or promises for a fee 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 non-licensee, non-holder,
licensee or holder of authority:
xxxx
(m) Failure to reimburse expenses incurred by the worker in connection
with his documentation and processing for purposes of deployment, in
cases where the deployment does not actually take place without the
worker’s fault. Illegal recruitment when committed by a syndicate or in
large scale shall be considered an offense involving economic sabotage.
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 committed in large scale if committed against three
(3) or more persons individually or as a group.
To constitute illegal recruitment in large scale, three elements must
concur: (a) the offender has no valid license or authority required by law
to enable him to lawfully engage in recruitment and placement of
workers; (b) the offender undertakes any of the activities within the
meaning of
"recruitment and placement" under Article13(b) of the Labor Code, or any
of the prohibited practices enumerated under Article 34 of the said Code
(now Section 6 of Republic Act No. 8042); and (c) the offender committed
the same against three or more persons, individually or as a group.21
Both the RTC and the Court of Appeals ruled that all the foregoing
elements of illegal recruitment in large scale are present in the case at
bar. As the Court of Appeals discussed in detail:
First, neither the agency "Green Pastures World Wide Tours and
Consultancy" nor 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 said agency located
in that apartment was not licensed to recruit employees for abroad. A
license is a document issued by the Department of Labor and
Employment (DOLE) authorizing a person or entity to operate a private
employment agency, while an authority is a document issued by the
DOLE authorizing a person or association to engage in recruitment and
placement activities as a private recruitment entity. It is the lack of the
necessary license or authority that renders the recruitment activity, as in
this case, unlawful or criminal.
Second, despite not having such authority, appellant, along with his co-
accused, nevertheless engaged in recruitment activities, offering and
promising jobs to private complainants and collecting from them various
amounts as placement fees. This is substantiated by the respective
testimonies of the three private complainants who fell victim to their illegal
activities. Marcelo de Guzman testified that appellant was physically
present during the time that he and his companions were being shown
job orders and while he was paying for the fees for himself and in behalf
of his companions. Francisco Poserio testified that appellant was one of
those who apprised him of job benefits and tried to convince him to apply
for overseas employment through their agency. Gina Decena mentioned
that [appellant] even gave her a copy of the job order.
We find no cogent reason to disturb the findings of the lower court that
there was conspiracy among the accused in the commission of the
offense. Direct proof of 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 community of
interest. Conspiracy exists where the participants performed specific acts
with such closeness and coordination as unmistakably to indicate a
common purpose or design in committing the crime.
The testimonies of the complainants on the matter are affirmative in
nature and sufficiently corroborative of each other to be less than
credible. It would be contrary to human nature and experience for several
persons to conspire and accuse appellant of a crime and send him to
prison just to appease their feeling of rejection and 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 is that they have positively identified
accused-appellant as one of those who enticed them to part with their
money in exchange for promised jobs abroad.
The crime of illegal recruitment, according to the Supreme Court is
committed when, among other things, a person, who without being duly
authorized according to law, represents or gives the distinct impression
that he or she has the power or the ability to provide work abroad
convincing those to whom the representation is made or to 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.
Contrary to appellant’s mistaken notion, it is not the issuance or signing
of receipts for the placement fees that makes a case for illegal
recruitment, but rather the undertaking of recruitment activities without
the necessary license or authority. The absence of receipts to evidence
payment is not necessarily fatal to the prosecution’s cause. A person
charged with the illegal recruitment may be convicted on the strength of
the testimony of the complainants, if found to be credible and convincing.
Considering the evidence on record, We agree with the trial court that
accused-appellant engaged in recruitment of workers which was illegal
and in large scale. Illegal recruitment is deemed committed in large scale
if committed against three or more persons individually or as a group. In
this case, three complainants testified against appellant’s acts of illegal
recruitment.22 (Citations omitted.)
The Court finds no cogent reason to deviate from the findings and
conclusions of the RTC and the Court of Appeals. The prosecution
witnesses were positive and categorical in their testimonies that they
personally met appellant; that they knew appellant was associated with
Green Pasture Worldwide Tour and Consultancy; and that appellant had
performed recruitment activities such as promising employment abroad,
encouraging job applications, and providing copies of job orders. The
private complainants’ testimonies are consistent and corroborate one
another on material points, such as the amount of the placement fees
asked, and the purported country of destination and nature of work.
It was not necessary for the prosecution to still prove that appellant
himself received the placement fees from private complainants and
issued receipts for the same, given the finding of both the RTC and the
Court of Appeals of the existence of conspiracy 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 not essential that there be actual proof that all the conspirators took a
direct part in every act. It is sufficient that they acted in concert pursuant
to the same objective.24
Between the categorical statements of the private complainants, on the
one hand, and the bare denial of appellant, on the other hand, the former
must perforce prevail. 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 not substantiated by clear
and convincing evidence, is negative and self-serving evidence
undeserving of weight in law. It is considered with suspicion and always
received with caution, not only because it is inherently weak and
unreliable, but also because it is easily fabricated and concocted.25
Furthermore, without any evidence to show that private complainants
were propelled by any ill motive to testify falsely against appellant, their
testimonies deserve full faith and credit. After all, the doctrinal rule is that
findings of fact made by the trial court, which had the opportunity to
directly observe the witnesses and to determine the probative value of
the other testimonies, are entitled to great weight and respect because
the trial court is in a better position to assess the same, an opportunity
not equally open to the appellate court. The absence of any showing that
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, impels us to defer to the trial court’s determination
according credibility to the prosecution evidence.26 This is more true if the
findings of the trial court were affirmed by the appellate court, since it is
settled that when the trial court’s findings have been affirmed by the
appellate court, said findings are generally binding upon this Court.27
Given the foregoing, we uphold the conviction of appellant for illegal
recruitment in a large scale, which constitutes economic sabotage. The
penalty of life imprisonment and the fine of ₱500,000.00, imposed upon
appellant for the said offense by the RTC, and affirmed by the Court of
Appeals, is in accord with Section 7(b) of Republic Act No. 8042, which
provides:
Sec. 7. Penalties.–
(a) Any person found guilty of illegal recruitment shall
suffer the penalty of imprisonment of not less than six (6)
years and one (1) day but not more than twelve (12)
years and a fine of not less than Two hundred thousand
pesos (₱200,000.00) nor more than Five hundred
thousand pesos (₱500,000.00).
(b) The penalty of life imprisonment and a fine of not less
than Five hundred thousand pesos (₱500,000.00) nor
more than One million pesos (₱1,000,000.00) shall be
imposed if illegal recruitment constitutes economic
sabotage as defined herein. (Emphasis ours.)
Estafa
We likewise affirm the conviction of appellant for three counts of estafa
committed 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 illegal recruitment.
It is settled that a person may be charged and convicted separately of
illegal recruitment under Republic Act No. 8042, in relation to the Labor
Code, and estafa under Article 315, paragraph 2(a)of the Revised Penal
Code. As we explained in People v. Cortez and Yabut28:
In this jurisdiction, it is settled that a person who commits illegal
recruitment may be charged and convicted separately of illegal
recruitment under the Labor Code and estafa under par. 2(a) of Art. 315
of the Revised Penal Code. The offense of illegal recruitment is malum
prohibitum where the criminal intent of the accused is not necessary for
conviction, while estafa is malum in se where the criminal intent of the
accused is crucial for conviction. Conviction for offenses under the Labor
Code does not bar conviction for offenses punishable by other laws.
Conversely, conviction for estafa under par. 2(a) of Art. 315 of the
Revised Penal Code does not bar a conviction for illegal recruitment
under the Labor Code. It follows that one’s acquittal of the crime of estafa
will not necessarily result in his acquittal of the crime of illegal recruitment
in large scale, and vice versa. (Citations omitted.)
Article 315, paragraph 2(a) of the Revised Penal Code defines estafa as:
Art. 315. Swindling (estafa). - Any person who shall defraud another by
any of the means mentioned hereinbelow x x x:
xxxx
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By using a fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions; or by means of other similar deceits.
The elements of estafa are: (a) that the accused defrauded another by
abuse of confidence or by means of deceit, and (b) that damage or
prejudice capable of pecuniary estimation is caused to the offended party
or third person.29
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 or fraudulent representation to private
complainants.
We are not persuaded. As we had previously discussed herein, private
complainants were able to establish, through their positive and credible
testimonies, that appellant acted in conspiracy with his co-accused to
mislead private complainants into believing that appellant and his co-
accused, for a fee, can deploy private complainants abroad for
employment. Decena testified that appellant gave her a copy of the
purported job order for Korea, while Poserio avowed that appellant
encouraged him to apply for work abroad. Daud, appellant’s fellow
conspirator, accepted placement fees from private complainants, even
issuing receipts for some; instructed private complainants to undergo
medical examination; and took private complainants’ passports. The
representations made by appellant and his co-accused to private
complainants were actually false and fraudulent, not only because they
were not duly authorized to undertake recruitment for overseas
employment, but also because there were no actual jobs waiting for
private complainants in Korea and private complainants never had a
chance to leave for work abroad.
Appellant also argues that the second element of estafa, which is
prejudice or pecuniary loss, was not established during trial as the
prosecution was unable to present any receipt signed by appellant
proving that he received money from private complainants.
We disagree once more with appellant. We reiterate that when
conspiracy has been 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 payment of placement fees
to illegal recruiters is not evidenced by receipts alone; it can also be
established by testimonies of witnesses. In People v. Pabalan,30 we held:
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 him does not mean that appellant did not accept or receive
such payments. This 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 the case of the prosecution. As
long as the witnesses had positively shown through their respective
testimonies that the accused is the one involved in the prohibited
recruitment, he may be convicted of the offense despite the want of
receipts.
The Statute of Frauds and the rules of evidence do not require the
presentations of receipts in order to prove the existence of a recruitment
agreement and the procurement of fees in illegal recruitment cases. The
amounts may consequently be proved by the testimony of witnesses.
(Citation omitted.)
Again, there is no cogent reason for us to disturb the finding of the RTC,
affirmed by 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, punishable under Article 315,
paragraph 2(a), of the Revised Penal Code.
The penalty for estafa depends on the amount of defraudation. Per
1âwphi1
Article 315 of the Revised Penal Code:
Art. 315. Swindling (estafa). – Any person who shall defraud another by
any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos; and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty
years. 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 shall be termed prision mayor or reclusion temporal, as
the case may be[.]
The prescribed penalty for estafa under Article 315 of the Revised Penal
Code, when the amount of the fraud is over ₱12,000.00 but not
exceeding ₱22,000.00, is prision 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 Code,
or anywhere within prision correccional minimum and medium (i.e., from
6 months and 1 day to 4 years and 2 months).31 Consequently, the
minimum terms in Criminal Case Nos. 03-0123,03-127, and 03-0130
were correctly fixed by the RTC, and affirmed by the Court of Appeals, at
2 years and 4 months of prision correccional.
The maximum term under the Indeterminate Sentence Law shall be that
which, in view of attending circumstances, could be properly imposed
under the rules of the Revised Penal Code. To compute the minimum,
medium, and maximum periods of the prescribed penalty for estafa when
the amount of fraud exceeds ₱12,000.00, the time included in prision
correccional maximum to prision mayor minimum shall be divided into
three equal portions, with each portion forming a period. Following this
computation, the minimum period for prision correccional maximum to
prision mayor minimum is from 4 years, 2 months, and 1 day to 5 years, 5
months, and 10 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 years. Any incremental penalty
(i.e., one year for every ₱10,000.00 in excess of ₱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
20 years.32
In Criminal Case Nos. 03-0123, 03-127, and 03-0130, the maximum term
shall be 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 years.
But then, since private complainants were defrauded in the amounts
exceeding ₱22,000.00, incremental penalty shall be imposed upon
appellant, determined as follows:
WHEREFORE, we AFFIRM with MODIFICATIONS the Decision dated
March 18, 2011 of the Court of Appeals in CA-G.R. CR.-H.C. No. 03168,
to read as follows:
1. In Criminal Case No. 03-0122, appellant Roderick T. Gallemit
is found GUILTY beyond reasonable doubt of illegal recruitment
in large scale, constituting economic sabotage, as defined and
penalized in Section 6, in relation to Section 7(b), of Republic Act
No. 8042, for which he is sentenced to suffer the penalty of life
imprisonment and is ordered to pay a fine of Five Hundred
Thousand Pesos (₱500.000.00);

2. In Criminal Case No. 03-0123, appellant Roderick T. Gallemit

1âw phi1

Quotient is found GUILTY beyond reasonable doubt of the crime of estafa,

Criminal Difference
After as defined and penalized in Article 315, paragraph 2(a) of the
Case After Incremental
Amount Dividing Revised Penal Code, for which he is sentenced to a prison term
No. (Private Subtracting
Defrauded by of two (2) years and four (4) months of prision correccional, as
Complainant Penalty33
₱10,000.0 minimum, to thirteen years (13) of reclusion temporal, as
) ₱22,000.00
0 maximum, and ordered to indemnify private complainant Marcelo
I. De Guzman in the amount of Eighty Thousand Pesos
03-0123 (De ₱80,000.0 ₱58,000.00 5.8 5 years
(₱80,000.00) as actual damages, with legal interest of six percent
Guzman) 0
(6%) per annum from January 3, 2003, until the said amount is
03-0127 ₱35,000.0 ₱13,000.00 1.3 1 year fully paid;
(Decena) 0
3. In Criminal Case No. 03-0127, appellant Roderick T. Gallemit
03-130 ₱70,000.0 ₱48,000.00 4.8 4 years is found GUILTY beyond reasonable doubt of the crime of estafa,
(Poserio) 0 as defined and penalized in Article 315, paragraph 2(a) of the
Revised Penal C ode, for which he is sentenced to a prison term
The incremental penalty shall be added to the maximum term of 8 years of two (2) years and four
fixed by the Court of Appeals. Thus, we agree with the Court of Appeals
in imposing the maximum penalty in Criminal Case No. 03-0123at (4) months of prision correccional, as minimum, to nine (9) years
thirteen (13) years of reclusion temporal; in Criminal Case No. 03-0127 at of prision mayor, as maximum, ordered to indemnify private
nine (9) years of prision mayor; and in Criminal Case No. 03-0130 at complainant Gina T. Decena in the amount of Thirty-Five
twelve (12) years of prision mayor. Thousand Pesos (₱35,000.00) as actual damages, with legal
interest of six percent (6%) per annum from January 3, 2003, until
Lastly, it is still incumbent upon appellant to indemnify private the said amount is fully paid; and
complainants for the amounts paid to him and his conspirators, with legal
interest at the rate of 6% per annum, from the time of demand, which, in 4. In Criminal Case No. 03-0130, appellant Roderick T. Gallemit
this case, shall be deemed as the same day the Informations were filed is found GUILTY beyond reasonable doubt of the crime of estafa,
against appellant, until the said amounts are fully paid.34 as defined and 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 prision correccional, as
minimum, to twelve (12) years of prision mayor, as maximum,
 and ordered to indemnify private complainant Francisco S.
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, 2003, until the said amount is fully paid.

SO ORDERED.
G.R. No. 180016 April 29, 2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of
the Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz
(petitioner), seeking to reverse and set aside the Decision1 dated March
22, 2007 and Resolution2 dated September 5, 2007 of the Court of
Appeals (CA), which affirmed with modification the Decision3 dated July
30, 2004 of the Regional Trial Court (RTC), Branch 46, San 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.
The antecedent facts follow.
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 business of lending money to casino players
and, upon hearing that the former had some pieces of jewelry for sale,
petitioner approached him on May 2, 1991 at the same casino and
offered to sell the said pieces of jewelry on commission basis. Private
complainant agreed, and as a consequence, he turned over to petitioner
the 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 evidenced by a receipt of even date. They both
agreed that petitioner shall remit the proceeds of the sale, and/or, if
unsold, to return the same items, within a period of 60 days. The period
expired without petitioner remitting the proceeds of the sale or returning
the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the
said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa,
which reads as follows:
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 part
of said accused to remit the proceeds of the sale of the said items or to
return the same, if not sold, said accused, once in possession of the said
items, with intent to defraud, and with unfaithfulness and abuse of
confidence, and far from complying with his aforestated obligation, did
then and there wilfully, unlawfully and feloniously 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
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 damage and prejudice of said Danilo Tangcoy
in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel,
entered a plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone
testimony of Danilo Tangcoy. On the other hand, the defense presented
the lone testimony of petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending loans to
Base employees. For every collection made, they earn a commission.
Petitioner denied having transacted any business with private
complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989
for which he was made to sign a blank receipt. He claimed that the same
receipt was then dated 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.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the
crime charged in the Information. The dispositive portion of the decision
states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315, paragraph
one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of
deprivation of liberty consisting of an imprisonment under the
Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM, to
FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
Temporal in its minimum period AS MAXIMUM; to indemnify private
complainant Danilo Tangcoy the amount of ₱98,000.00 as actual
damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal
of petitioner and affirmed the decision of the RTC, thus:
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 MODIFICATION on the imposable prison term,
such that accused-appellant shall 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 ₱10,000.00,
or a total of 7 years. The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with
this Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING
THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION
FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE
SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B)
OF THE REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN
WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE
RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED,
IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME
ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS
MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY
THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS
PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE
WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2)
VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH
HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST
THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General
(OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to
object to their admissibility.
The information was not defective inasmuch as it sufficiently established
the designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime
charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and
carry even more weight when said court affirms the findings of the trial
court, absent any showing that the findings are totally devoid of support
in the records, or that they are so glaringly erroneous as to constitute
grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in
affirming the factual findings of the trial court. He now comes to this Court
raising both procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial
court, admitting in evidence a receipt dated May 2, 1991 marked as
Exhibit "A" and its submarkings, although the same was merely a
photocopy, thus, violating the best evidence rule. However, the records
show that petitioner never objected to the 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 petitioner
also failed to raise an objection in his Comment to the prosecution's
formal offer of evidence and even admitted having signed the said
receipt. The established 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
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 period when the pieces of jewelry were supposed to
be returned and that the date when the crime occurred was different from
the one testified to by private 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 on appeal.
It is true that the gravamen of the crime of estafa under Article 315,
paragraph 1, subparagraph (b) of the RPC is the appropriation or
conversion of money or property received to the prejudice of the
owner6 and that the time of 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 Information, do not make the
latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or omissions constitutive
thereof. Then 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 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 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 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 considering that Section 11 of the same Rule requires a statement
of the precise time only when the same is a material ingredient of the
offense. The gravamen of the crime of estafa under Article 315,
paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or
conversion of money or property received to the prejudice of the offender.
Thus, aside from the fact that the date of the commission thereof is not
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. Moreover, the said date is also near the due date
within which accused-appellant 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. Accused-appellant,
therefore, cannot now be allowed to claim that he was not properly
apprised of the charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of
Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). – Any person who shall defraud another by
any of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another, money,
goods, or any other personal property received by the offender in trust or
on commission, or for administration, or under any other obligation
involving the duty to make delivery of or to return the same, even though a Yes, sir.
such obligation be totally or partially guaranteed by a bond; or by denying
having received such money, goods, or other property; x x x q Did you find him?

The elements of estafa with abuse of confidence are as follows: (a) that a No, sir.
money, goods or other personal property is received by the offender in
trust, or on commission, or for administration, or under any other q Were you able to talk to him since 5 July 1991?
obligation involving the duty to make delivery of, or to return the same;
(b) that there be misappropriation or conversion of such money or
a I talked to him, sir.
property by the offender or denial on his part of such receipt; (c) that such
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 q How many times?
offender.8
a Two times, sir.
Petitioner argues that the last element, which is, that there is a demand
by the offended party on the offender, was not proved. This Court q What did you talk (sic) to him?
disagrees. In his testimony, private complainant narrated how he was
able to locate petitioner after almost two (2) months from the time he a About the items I gave to (sic) him, sir.
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
q Now, Mr. Witness, this was executed on 2 May 1991, and this amount, sir.
transaction could have been finished on 5 July 1991, the question is what
happens (sic) when the deadline came? q Up to this time that you were here, were you able to collect from him
partially or full?
a I went looking for him, sir.
a No, sir.9
q For whom?
No specific type of proof is required to show that there was
a Lito Corpuz, sir. demand.10 Demand need not even be formal; it may be verbal.11 The
specific word "demand" need not even be used to show that it has indeed
q Were you able to look (sic) for him? been made upon the person charged, since even a mere query as to the
whereabouts of the money [in this case, property], would be tantamount
a I looked for him for a week, sir. to a demand.12 As expounded in Asejo v. People:13

q Did you know his residence? With regard to the necessity of demand, we agree with the CA that
demand under this kind of estafa need not be formal or written. The
appellate court observed that the law is silent with regard to the form of
a Yes, sir.
demand in estafa under Art. 315 1(b), thus:
q Did you go there?
When the law does not qualify, We should not qualify. Should a written
demand be necessary, the law would have stated so. Otherwise, the
word "demand" should be interpreted in its general meaning as to include
both written and oral demand. Thus, the failure of the prosecution to
present a written demand as evidence is not fatal.
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:
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 demand for funds or property held in trust, is
circumstantial evidence of misappropriation. The same way, however, be
established by other proof, such as that introduced in the case at bar.14
In view of the foregoing and based on the records, the prosecution was
able to prove the existence of all the elements of the crime. Private
complainant gave petitioner the pieces of jewelry in trust, or on
commission basis, as shown in the receipt dated May 2, 1991 with an
obligation to sell or return the same within sixty (60) days, if unsold.
There was misappropriation when petitioner failed to remit the proceeds
of 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 complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is
questioned by petitioner, the same is unmeritorious. Settled is the rule
that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial 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, which merely
rely on the records of the case.15 The assessment by the trial court is
even conclusive and binding if not tainted with arbitrariness or oversight
of some fact or circumstance of weight and influence, especially when
such finding is affirmed by the CA.16 Truth is established not by the
number of witnesses, but by the quality of their testimonies, for in
determining the value and credibility of evidence, the witnesses are to be
weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating
on this case, 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 value of the money and
property in 1930 when it enacted the Revised Penal Code. Since the
members of the division reached no unanimity on this question and since
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 behest of the Court to give their academic
opinions on the matter. Among those that graciously complied were Dean
Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F.
Tadiar, the Senate President, and the Speaker of the House of
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.
After a thorough consideration of the arguments presented on the matter,
this Court finds the following:
There seems to be a perceived injustice brought about by the range of
penalties that the courts continue to impose on crimes against property
committed today, based on the amount of damage measured by the
value of money eighty years ago in 1932. However, this Court cannot
modify the said range of penalties because that would constitute judicial
legislation. What the legislature's perceived failure in amending the
penalties provided for in the said crimes cannot be remedied through this
Court's decisions, as that would be encroaching upon the power of
another branch of the government. This, however, does not render the
whole situation without any remedy. It can be appropriately presumed
that the framers of the Revised Penal Code (RPC) had anticipated this
matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be
repressed but which 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 punishable by law, it shall
render the proper decision, and shall report to the Chief Executive,
through the Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through
the Department of Justice, such statement as may be deemed proper,
without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the imposition
of a clearly excessive penalty, 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 case which is not punishable by law and the court finds it
proper to repress, the remedy is to render the proper decision and
thereafter, report to the Chief Executive, through the Department of
Justice, the reasons why the same act should be the 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 Executive of the need to make that act punishable by law through
legislation. The second paragraph is similar to the first except for the
situation wherein the act is already punishable by law but the
corresponding penalty is deemed by the court as excessive. The remedy
therefore, as in the first paragraph is not to suspend the execution of the
sentence but to submit to the Chief Executive the reasons why the court
considers the said penalty to be non-commensurate with the act
committed. Again, the court is tasked to inform the Chief Executive, this
time, of the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B.
Guevara opined that in Article 5, the duty of the court is merely to report
to the Chief Executive, with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla
poena sige lege," that is, that there can exist no punishable act except
those previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not
deem it necessary to prohibit its perpetration with penal sanction, the
Court of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the
execution of a 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 eventuality is to report the matter to the Chief
Executive with a recommendation for an amendment or modification of
the legal provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief
Justice Ramon C. Aquino and retired Associate Justice Carolina C.
Griño-Aquino, in their book, The Revised Penal Code,21 echoed the
above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian
principle that justice must be tempered with mercy. Generally, the courts
have nothing to do with 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 fairly differ; but it
is the duty of the courts to enforce the will of the legislator in all cases
unless it clearly appears that a given penalty falls within the prohibited
class of excessive fines or cruel and unusual punishment." A petition for
clemency should be addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes against
property be based on the current inflation rate or at the ratio of ₱1.00 is
equal to ₱100.00 . However, it would be dangerous as this would result in
uncertainties, as opposed to the definite imposition of the penalties. It
must be remembered that the economy fluctuates and if the proposed
imposition of the penalties in crimes against property be adopted, the
penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it
should have provided the same, instead, it included the earlier cited
Article 5 as a remedy. It is 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 know, the legislature
intends to retain the same penalties in order to deter the further
commission of those punishable acts which have increased tremendously
through the years. In fact, in recent moves of the legislature, it is
apparent that it 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 legislature lowered it to ₱50,000,000.00.
In the same way, the legislature lowered the threshold amount upon
which the Anti-Money Laundering Act may apply, from ₱1,000,000.00 to
₱500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present
penalties do not seem to be excessive compared to the proposed
imposition of their corresponding penalties. In Theft, the provisions state
that:
Art. 309. Penalties. — Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium
periods, if the value of the thing stolen is more than 12,000 pesos
but does not exceed 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 paragraph, and one
year for each additional ten thousand pesos, but the total of the
penalty which may be imposed shall not exceed 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 shall be termed prision mayor or reclusion
temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos
but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos
but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50
pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but
does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such
value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3
of the next preceding 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 subdivisions shall be made
applicable.
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 have acted under the impulse of hunger,
poverty, or the difficulty of earning a livelihood for the support of
himself or his family.
In a case wherein the value of the thing stolen is ₱6,000.00, the above-
provision states that the penalty is prision correccional in its minimum and
medium periods (6 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 period to prision
correccional minimum period (2 months and 1 day to 2 years and 4
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 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 maximum period (2 months and 1
day to 6 months), making the offender qualified 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 period under the existing law. Thus, it would seem that
the present penalty imposed under the law is not at all excessive. The
same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the
thing stolen in the crime of Theft and the damage caused in the crime of
Estafa, the gap between the minimum and the maximum amounts, which
is the basis of determining the 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 or the damage
caused:
I. Article 309, or the penalties for the crime of Theft, the value would be
modified but the penalties are not changed:
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 1 day to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punished by prision correccional medium and to
prision correccional maximum (2 years, 4 months and 1 day to 6
years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by prision correccional minimum to prision
correccional medium (6 months and 1 day to 4 years and 2
months).
 4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00,
punishable by arresto mayor medium to prision correccional
minimum (2 months and 1 day to 2 years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable
by arresto mayor (1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00, punishable by arresto mayor
minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would
also be modified but the penalties are not changed, as follows:
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to
₱2,200,000.00, punishable by prision correccional maximum to
prision mayor minimum (4 years, 2 months and 1 day to 8
years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punishable by prision correccional minimum to
prision correccional medium (6 months and 1 day to 4 years and
2 months).26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to
₱600,000.00, punishable by arresto mayor maximum to prision
correccional minimum (4 months and 1 day to 2 years and 4
months).
4th. ₱200.00 will become ₱20,000.00, punishable by arresto
mayor maximum (4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our
esteemed amici curiae, is that the incremental penalty provided under
Article 315 of the RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which is
determined according to a valid classification. The test developed by
jurisprudence here and yonder is that of reasonableness,27 which has four
requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not
rest on 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 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 the same
penalty as someone who steals hundreds of millions, which violates the
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 no longer exist today.
Assuming that the Court submits to the argument of Dean Diokno and
declares the incremental penalty in Article 315 unconstitutional for
violating the equal protection 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 poses more
questions than answers, which leads us even more to conclude that the
appropriate remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR
unconstitutional, the remedy is to go to Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should be
struck down as unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual
punishment.
JUSTICE PERALTA: But if we de ... (interrupted)

Then what will be the penalty that we are going to impose if the amount is DEAN DIOKNO:
more than Twenty-Two Thousand (₱22,000.00) Pesos.
....then....
DEAN DIOKNO:
JUSTICE PERALTA:
Well, that would be for Congress to ... if this Court will declare the
incremental penalty rule unconstitutional, then that would ... the void Ah, yeah. But if we declare the incremental penalty as unsconstitutional,
should be filled by Congress. the court cannot fix the amount ...

JUSTICE PERALTA: DEAN DIOKNO:

But in your presentation, you were fixing the amount at One Hundred No, Your Honor.
Thousand (₱100,000.00) Pesos ...
JUSTICE PERALTA:
DEAN DIOKNO:
... as the equivalent of one, as an incremental penalty in excess of
Well, my presen ... (interrupted) Twenty-Two Thousand (₱22,000.00) Pesos.

JUSTICE PERALTA: DEAN DIOKNO:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of No, Your Honor.
Twenty-Two Thousand (₱22,000.00) Pesos you were suggesting an
additional penalty of one (1) year, did I get you right? JUSTICE PERALTA:

DEAN DIOKNO: The Court cannot do that.

Yes, Your Honor, that is, if the court will take the route of statutory DEAN DIOKNO:
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:
... and determine the value or the amount.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in
excess of Twenty-Two Thousand (₱22,000.00) Pesos.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
Thank you.
x x x x29
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 United States Federal Supreme Court has
expanded the application of a similar Constitutional provision prohibiting
cruel and unusual punishment, to the duration 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) Compare
the nature and gravity of the offense, and the harshness of the penalty;
(2) Compare the sentences imposed on other criminals in the same
jurisdiction, i.e., 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 in other jurisdictions.
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 state court of South Dakota after it took into
account the latter’s recidivist statute and not the original penalty for
uttering a "no account" check. Normally, the maximum punishment for the
crime would have been five years imprisonment and a $5,000.00 fine.
Nonetheless, respondent was sentenced to life imprisonment without the
possibility of parole under South Dakota’s recidivist statute because of
his six prior felony convictions. Surely, the factual antecedents of Solem
are different from the present controversy.
With respect to the crime of Qualified Theft, however, it is true that the
imposable penalty for the offense is high. Nevertheless, the rationale for
the imposition of a higher penalty against a domestic servant is the fact
that in the commission of the 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 of the household, thus
entrusting upon such person the protection and safekeeping of the
employer’s loved ones and properties, a subsequent betrayal of that trust
is so repulsive as to warrant the necessity of imposing a higher penalty to
deter the commission of such wrongful acts.
There are other crimes where the penalty of fine and/or imprisonment are
dependent on the subject matter of the crime and which, by adopting the
proposal, may create serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:
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 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 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:
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos
but does not exceed six thousand pesos.
 3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more
than six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum
periods, if the amount involved is more than twelve thousand
pesos but is less than twenty-two thousand pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal use.
The above-provisions contemplate a situation wherein the Government
loses money due to the unlawful acts of the offender. Thus, following the
proposal, if the amount malversed is ₱200.00 (under the existing law),
the amount now becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 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 punishable by a special law, i.e., Republic Act No. 3019 or the
Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein the
injury caused to the government is not generally defined by any monetary
amount, the penalty (6 years and 1 month to 15 years)32 under the Anti-
Graft Law will now become higher. This should not be the case, because
in the crime of malversation, the public official takes advantage of his
public position to embezzle the fund or property of the government
entrusted to him.
The said inequity is also apparent in the crime of Robbery with force
upon things (inhabited or uninhabited) where the value of the thing
unlawfully taken and the act of unlawful entry are the bases of the penalty
imposable, and also, in Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we
increase the value of the thing unlawfully taken, as proposed in the
ponencia, the sole basis of the penalty will now be the value of the thing
unlawfully taken and no longer the element 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 of robbery
because the former is punishable by prision correccional in its medium
and maximum periods (2 years, 4 months and 1 day to 6 years) and a
fine not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100)
where entrance to the premises is with violence or intimidation, which is
the main justification of the penalty. Whereas in the crime of Robbery with
force upon things, it is punished with a penalty of prision mayor (6 years
and 1 day to 12 years) if the intruder is unarmed without the penalty of
Fine despite the fact that it is not merely the illegal entry that is the basis
of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the
highest penalty that can be imposed is arresto mayor in its medium and
maximum periods (2 months 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), and still punishable
by arresto mayor (1 month and 1 day to 6 months). And, if the value of
the damaged property does not exceed ₱200.00, the penalty is arresto
menor or a fine of not less than the value of the damage caused and not
more than ₱200.00, if the amount involved does not exceed ₱200.00 or
cannot be estimated. Under the proposal, ₱200.00 will now become
₱20,000.00, which simply means that the fine of ₱200.00 under the
existing law will now become ₱20,000.00. The amount of Fine under this
situation will now become excessive and afflictive in nature despite the
fact that the offense is categorized as a light felony penalized with a light
penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of
the RPC, there will be grave implications on the penalty of Fine, but
changing the same through Court decision, either expressly or impliedly,
may not be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that
may also be affected by the proposal, such as those that impose
imprisonment and/or Fine as a penalty based on the value of the damage
caused, to wit: Article 311 (Theft of the property of the National Library
and National Museum), Article 312 (Occupation of real property or
usurpation of real rights in property), Article 313 (Altering boundaries or
landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling
a minor), Article 318 (Other deceits), Article 328 (Special cases of
malicious mischief) and Article 331 (Destroying or damaging statues,
public monuments or paintings). Other crimes that impose Fine as a
penalty will also be affected, such as: Article 213 (Frauds against the
public treasury and similar offenses), Article 215 (Prohibited
Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article
218 (Failure of accountable officer to render accounts), Article 219
(Failure of a responsible public officer to render accounts before leaving
the country).
In addition, the proposal will not only affect crimes under the RPC. It will
also affect crimes which are punishable by special penal laws, such as
Illegal Logging or Violation of Section 68 of Presidential Decree No. 705,
as amended.34The law treats cutting, gathering, collecting and possessing
timber or other forest products without license as an offense as grave as
and equivalent to the felony of qualified theft.35 Under the law, the
offender shall be punished with the penalties imposed under Articles 309
and 31036 of the Revised Penal Code, which means that the penalty
imposable for the offense is, again, based on the value of the timber or
forest products involved in the 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 the
penalty is dependent on Articles 309 and 310 of the RPC? The answer is
in the negative because the soundness of this particular law is not in
question.
With the numerous crimes defined and penalized under the Revised
Penal Code and Special Laws, and other related provisions of these laws
affected by the proposal, a thorough study is needed to determine its
effectivity and necessity. There may be some provisions of the law that
should be amended; nevertheless, this Court is in no position to conclude
as to the intentions of the framers of the Revised Penal Code by merely
making a study of the applicability of the penalties imposable in the
present times. Such is not within the competence of the Court but of the
Legislature which is empowered to conduct public hearings on the
matter, consult legal luminaries and who, after due proceedings, can
decide whether or not to amend or to revise the questioned law or other
laws, or even create a new legislation which will adopt to the times.
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 that at present, fifty-six (56) bills are now pending in
the Senate seeking to amend the Revised Penal Code,37 each one
proposing much needed change and updates to archaic laws that were
promulgated decades ago when the political, socio-economic, and
cultural settings were far different from today’s conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a
way that it shall not usurp legislative powers by judicial legislation and
that in the course of such application or construction, it should not make
or supervise legislation, or under the guise of interpretation, modify,
revise, amend, distort, remodel, or rewrite the law, or give the law a
construction which is repugnant to its terms.38 The Court should apply the
law in a manner that would give effect to their letter and spirit, especially
when the law is clear as to its intent and purpose. Succinctly put, the
Court should shy away from encroaching upon the primary function of a
co-equal branch of the Government; otherwise, this would lead to an
inexcusable breach of the doctrine of separation of powers by means of
judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty
or a Fine; hence, it can be increased by the Court when appropriate.
Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-
delict shall be at least three thousand pesos, even though there may
have been mitigating circumstances. In addition:
(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 indemnity shall in every case be assessed
and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had
no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to
the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the
death, for a period not exceeding five years, the exact duration to
be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for
mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a
kind of monetary restitution or compensation to the victim for the damage
or infraction that was done to the latter by the accused, which in a sense
only covers the civil aspect. 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 the victim a
sum of money as restitution. Clearly, this award of civil indemnity due to
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 crimes. Thus, the reasoning in increasing the
value of civil indemnity awarded in some offense cannot be the same
reasoning that would sustain the adoption of the suggested ratio. Also, it
is apparent from Article 2206 that the law only imposes a minimum
amount for awards of civil indemnity, which is ₱3,000.00. The law did not
provide for a ceiling. Thus, although the minimum amount for the award
cannot be changed, increasing the amount awarded as civil indemnity
can be validly modified and increased when the present circumstance
warrants it. Corollarily, moral damages under Article 222039 of the Civil
Code also does not fix the amount of damages that can be awarded. It is
discretionary upon the court, depending on the mental anguish 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 indemnity.
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 punitive in nature. Whether or not they are
excessive or amount to cruel punishment is a matter that should be left to
lawmakers. It is the prerogative of the courts to apply the law, especially
when they are clear and not subject to any other interpretation than that
which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s
opinions is that the incremental penalty provision should be declared
unconstitutional and that the courts should only impose the penalty
corresponding to the amount of ₱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 in the
regular course of criminal justice would occur when every accused
convicted of the crime of estafa will be meted penalties different from the
proper penalty that should be imposed. Such drastic twist in the
application of the law has no legal basis and directly runs counter to what
the law provides.
It should be noted that the death penalty was reintroduced in the
dispensation of criminal justice by the Ramos Administration by virtue of
Republic Act No. 765940 in December 1993. The said law has been
questioned before this Court. There is, 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. 9346,41 the Court
did not impede the imposition of the death penalty on the ground that it is
a "cruel punishment" within the purview of Section 19 (1),42 Article III of
the Constitution. Ultimately, it was through an act of Congress
suspending the imposition of the death penalty that led to its non-
imposition and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court
cannot declare 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 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 collaterally
because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never
touched upon the constitutionality of any of the provisions of the Revised
Penal Code.
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 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 like. Fine and imprisonment would not thus be within the prohibition.44
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 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 plainly
oppressive," "wholly disproportionate to the nature of the offense as to
shock the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend
the law and adapt it to our modern time.
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 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 accurately and properly PROFESSOR TADIAR:
adjusted. The effects on the society, the injured party, the accused, its
socio-economic impact, and the likes must be painstakingly evaluated Yes.
and weighed upon in order to arrive at a wholistic change that all of us
believe should be made to our existing law. Dejectedly, the Court is ill- JUSTICE PERALTA:
equipped, has no resources, and lacks sufficient personnel to conduct
public hearings and sponsor studies and surveys to validly effect these
... and so on. Is the Supreme Court equipped to determine those factors?
changes in our Revised Penal Code. This function clearly and
appropriately belongs to Congress. Even Professor Tadiar concedes to
this conclusion, to wit: PROFESSOR TADIAR:

xxxx There are many ways by which the value of the Philippine Peso can be
determined utilizing all of those economic terms.
JUSTICE PERALTA:
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine
the value of Peso you have to take into consideration several factors. Yeah, but ...

PROFESSOR TADIAR: PROFESSOR TADIAR:

Yes. 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 ...
JUSTICE PERALTA:
JUSTICE PERALTA:
Per capita income.
Yeah.
PROFESSOR TADIAR:
PROFESSOR TADIAR:
Per capita income.
... One (₱1.00.00) Peso in 1930.
JUSTICE PERALTA:
JUSTICE PERALTA:
Consumer price index.
That is legislative in nature.
PROFESSOR TADIAR:
PROFESSOR TADIAR:
Yeah.
That is my position that the Supreme Court ...
JUSTICE PERALTA:
JUSTICE PERALTA:
Inflation ...
Yeah, okay.
PROFESSOR TADIAR:
... has no power to utilize the power of judicial review to in order to adjust,
to make the adjustment that is a power that belongs to the legislature.
JUSTICE PERALTA:
Thank you, Professor.
PROFESSOR TADIAR:
Thank you.46
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 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 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.
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 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 Civil Code mandates a
presumption that the lawmaking body intended right and justice to
prevail.
With due respect to the opinions and proposals advanced by the Chief
Justice and 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 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 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 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 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.
Now, with regard to the penalty imposed in the present case, the CA
modified the 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 (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 two (2)
months of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or
a total of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling in
Cosme, Jr. v. People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal
Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud another by
any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 but
does not exceed 22,000 pesos, and if such amount exceeds the latter
sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not exceed twenty years. In
such case, and in connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case
may be.
The penalty prescribed by Article 315 is composed of only two, not three,
periods, in which case, Article 65 of the same Code requires the division
of the time included in the penalty into three equal portions of time
included in the penalty prescribed, forming one period of each of the
three portions. Applying the latter provisions, the maximum, medium and
minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49 Revised Penal Code, are hereby AFFIRMED with MODIFICATION that
the penalty imposed is the indeterminate penalty of imprisonment ranging
To compute the maximum period of the prescribed penalty, prisión from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of
correccional maximum to prisión mayor minimum should be divided into prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion
three equal portions of time each of which portion shall be deemed to temporal as maximum.
form one period in accordance with Article 6550 of the RPC.51 In the
present case, the amount involved is ₱98,000.00, which exceeds Pursuant to Article 5 of the Revised Penal Code, let a Copy of this
₱22,000.00, thus, the maximum penalty imposable should be within the Decision be furnished the President of the Republic of the Philippines,
maximum period of 6 years, 8 months and 21 days to 8 years of prision through the Department of Justice.
mayor. Article 315 also states that a period of one year shall be added to
the penalty for every additional ₱10,000.00 defrauded in excess of Also, let a copy of this Decision be furnished the President of the Senate
₱22,000.00, but in no case shall the total penalty which may be imposed and the Speaker of the House of Representatives.
exceed 20 years.
SO ORDERED.
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 minimum, the penalty next lower would then
be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be

anywhere from 6 months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its
primordial duty of lawmaking. The Court should not pre-empt Congress
and usurp its inherent powers of making and enacting laws. While it may
be the most expeditious approach, a short cut by judicial fiat is a
dangerous proposition, lest the Court dare trespass on prohibited judicial
legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5,

2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the
Decision dated March 22, 2007 and Resolution dated September 5, 2007
of the Court of Appeals, which affirmed with modification the Decision
dated July 30, 2004 of the Regional Trial 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 the