G.R. No.
195244 June 22, 2015 house and stab her mother with a knife, while he (Carl) peeped through a chair.
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:
Carl or Muymoy, 5-year old son of the victim, testified that on the night of 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
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.1âwphi1 The
commission of an offense has a two-pronged effect, one on 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 Revised Penal Code in order that frustrated theft may be recognized. Our deference
classification. It is difficult to formulate definite standards as to when a stolen item is to Viada yields to the higher reverence for legislative intent.
susceptible to free disposal by the thief. Would this depend on the psychological
belief of the offender at the time of the commission of the crime, as implied in Diño? WHEREFORE, the petition is DENIED. Costs against petitioner.

Or, more likely, the appreciation of several classes of factual circumstances such as SO ORDERED.
the size and weight of the property, the location of the property, the number and
identity of people present at the scene of the crime, the number and identity of
people whom the offender is expected to encounter upon fleeing with the stolen
property, the manner in which the stolen item had been housed or stored; and quite
frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of
free disposal at any stage, even after the taking has been consummated.
G.R. No. 209227
All these complications will make us lose sight of the fact that beneath all the colorful
detail, the owner was indeed deprived of property by one who intended to produce PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
such deprivation for reasons of gain. For such will remain the presumed fact if vs.
frustrated theft were recognized, for therein, all of the acts of execution, including CHARLIE OROSCO, Accused-Appellant.
the taking, have been completed. If the facts establish the non-completion of the
taking due to these peculiar circumstances, the effect could be to downgrade the DECISION
crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been VILLARAMA, JR., J.:
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
On appeal is the Decision1 dated March 22, 2013 of the Court of Appeals (CA) in CA-
G.R. CR-HC No. 05171 which affirmed the Decision2 dated June 24, 2011 of the
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet Regional Trial Court of Legazpi City, Branch 10 finding the accused-appellant Charlie
they do not align with the legislated framework of the crime of theft. The Revised Orosco guilty of the crime of Robbery with Homicide.
Penal Code provisions on theft have not been designed in such fashion as to
accommodate said rulings. Again, there is no language in Article 308 that expressly
Appellant, along with Abner Astor, "John Doe" and "Peter Doe," were charged with
or impliedly allows that the "free disposition of the items stolen" is in any way
Robbery with Homicide defined and penalized under Article 294 of the Revised Penal
determinative of whether the crime of theft has been produced. Diño itself did not
Code, as amended. The Information reads as follows:
rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores
was ultimately content in relying on Diño alone for legal support. These cases do not
That on or about the 16th day of May, 2006, in the City of Legazpi, Philippines, and
enjoy the weight of stare decisis, and even if they did, their erroneous appreciation
within the jurisdiction of this Honorable Court, the above- named accused,
of our law on theft leave them susceptible to reversal. The same holds true of Empilis,
conspiring, confederating and helping one another, with intent of gain and by means
a regrettably stray decision which has not since found favor from this Court.
of violence, did then and there [willfully], unlawfully, feloniously and forcibly enter
the store owned by one Lourdes Yap situated at Purok 4, Barangay Rawis, Legazpi
We thus conclude that under the Revised Penal Code, there is no crime of frustrated
City, and once inside said store, take, steal and carry away cash money, to the
theft. As petitioner has latched the success of his appeal on our acceptance of the
damage and prejudice of said Lourdes Yap, and by reason of or on occasion of said
Diño and Flores rulings, his petition must be denied, for we decline to adopt said
robbery, and for the purpose of enabling them to take, steal and carry away the
rulings in our jurisdiction. That it has taken all these years for us to recognize that
aforesaid cash money in pursuance of their conspiracy, did then and there [willfully],
there can be no frustrated theft under the Revised Penal Code does not detract from
unlawfully and feloniously and taking advantage of their superior strength and with
the correctness of this conclusion. It will take considerable amendments to our
intent to kill, attack, assault and stab the aforesaid Lourdes Yap, thereby inflicting
upon her injury which directly caused her untimely death, to the damage and
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 A.Orosco, sir.
as it found no compelling reason to deviate from the factual findings and conclusions
of the trial court. Q.If this Charlie Orosco whom you said was then holding the hands of Lourdes Yap, if
he is in Court, would you please point to him?
In this petition, appellant reiterates the arguments he raised before the CA that the
trial court erred in giving credit to the uncorroborated eyewitness testimony of Arca WITNESS (answering)
who could not point to him during the trial, and that even granting that criminal
charges may be imputed against him, it should only be robbery and not the complex A.Yes, sir.
crime of robbery with homicide considering the fact that it was not him who stabbed
Yap.
Q.Please look around you and point at him.

The appeal lacks merit.

A.He is here.

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

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

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

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

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

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

Q.Do you know the family name? Okay.

ATTY. BAÑARES A.Yes, sir.

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

COURT xxxx

Observations are all noted. COURT (to the witness)

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

A.Yes, sir, he is around.

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

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

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

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

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

Here, Albert Arca, the prosecution’s main witness, positively identified accused
robbery, the crime of homicide shall have been committed, or when the robbery shall
Orosco as one of [the] two men who robbed and killed Lourdes Yap on that fateful
have been accompanied by rape or intentional mutilation or arson.
day. As observed by the trial court during the bail hearings, when asked to identify
one of the men who robbed and killed the victim, Arca was trembling and constantly
The elements of the crime of robbery with homicide are: (1) the taking of personal
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.1âwphi1 Accused-appellant herself testified that 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.
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
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.
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 certiorari1 assailing the 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 22.1âwphi1 Under the 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 Decision 1 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 Order 15 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.1âwphi1 Per 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:
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:

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

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

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

SO ORDERED.
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, after
having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
₱45,000.00; one (1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1) two-
baht ladies' bracelet, 22k, worth ₱12,000.00, or in the total amount of Ninety-Eight
Thousand Pesos (₱98,000.00), Philippine currency, under expressed obligation on the
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 owner 6 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. q For whom?
Accused-appellant, therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him.7 a Lito Corpuz, sir.

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

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

xxxx q Did you go there?

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

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

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

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

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

No specific type of proof is required to show that there was 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 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 to a demand.12 As expounded in Asejo v. People:13
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 demand in estafa under Art. 315 1(b), thus:
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:
Then what will be the penalty that we are going to impose if the amount is more than
Twenty-Two Thousand (₱22,000.00) Pesos.
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the incremental
penalty rule unconstitutional, then that would ... the void should be filled by
Congress.
JUSTICE PERALTA:
But in your presentation, you were fixing the amount at One Hundred Thousand
(₱100,000.00) Pesos ...
DEAN DIOKNO:
Well, my presen ... (interrupted)
JUSTICE PERALTA: No, Your Honor.

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

DEAN DIOKNO: DEAN DIOKNO:

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

JUSTICE PERALTA: JUSTICE PERALTA:

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

DEAN DIOKNO: DEAN DIOKNO:

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

JUSTICE PERALTA: JUSTICE PERALTA:

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

DEAN DIOKNO: DEAN DIOKNO:

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

JUSTICE PERALTA: JUSTICE PERALTA:

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

DEAN DIOKNO: DEAN DIOKNO:

No, Your Honor. Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
Thousand (₱22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
DEAN DIOKNO:
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. 7659 40 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 JUSTICE PERALTA:
Court.
Yeah, Just one question. You are suggesting that in order to determine the value of
Even if the imposable penalty amounts to cruel punishment, the Court cannot declare Peso you have to take into consideration several factors.
the provision of the law from which the proper penalty emanates unconstitutional in
the present action. Not only is it violative of due process, considering that the State PROFESSOR TADIAR:
and the concerned parties were not given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a statute cannot be attacked Yes.
collaterally because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never touched
JUSTICE PERALTA:
upon the constitutionality of any of the provisions of the Revised Penal Code.
Per capita income.
Besides, it has long been held that the prohibition of cruel and unusual punishments
is generally aimed at the form or character of the punishment rather than its severity
PROFESSOR TADIAR:
in respect of duration or amount, and applies to punishments which public sentiment
has regarded as cruel or obsolete, for instance, those inflicted at the whipping post,
or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the Per capita income.
like. Fine and imprisonment would not thus be within the prohibition. 44
JUSTICE PERALTA:
It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. The fact that the punishment authorized Consumer price index.
by the statute is severe does not make it cruel and unusual. Expressed in other terms,
it has been held that to come under the ban, the punishment must be "flagrantly and PROFESSOR TADIAR:
plainly oppressive," "wholly disproportionate to the nature of the offense as to shock
the moral sense of the community."45 Yeah.

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

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

PROFESSOR TADIAR: With respect to the imposable penalty, Article 315 of the Revised Penal Code
provides:
Thank you.46
ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the
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
To compute the maximum period of the prescribed penalty, prisión correccional
maximum to prisión mayor minimum should be divided into three equal portions of
time each of which portion shall be deemed to form one period in accordance with
Article 6550 of the RPC.51 In the present case, the amount involved is ₱98,000.00,
which exceeds ₱22,000.00, thus, the maximum penalty imposable should be within
the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for
every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.
Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00
ceiling set by law, then, adding one year for each additional ₱10,000.00, the
maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor
minimum would be increased by 7 years. Taking the maximum of the prescribed
penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by law for
the estafa charge against petitioner is prision correccional maximum to prision mayor
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 Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty
imposed is the indeterminate penalty of imprisonment ranging from THREE (3)
YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to
FIFTEEN (15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be
furnished the President of the Republic of the Philippines, through the Department
of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and the
Speaker of the House of Representatives.
SO ORDERED.