FIRST DIVISION

[G.R. No. 122290. April 6, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REYNALDO BAGO y MADRID, accused-appellant, ARMANDO CAPARAS y CUENCO and RODOLFO ONGSECO y VEGO, accused. DECISION
PUNO, J.: Appellant REYNALDO BAGO was charged with qualified theft, while his co-accused ARMANDO CAPARAS and RODOLFO ONGSECO were charged with simple theft, in an Information[1] which reads: "That sometime during the period from January 1992 to March 23, 1992, in Quezon City, Philippines, REYNALDO BAGO y MADRID, being then employed as factory worker of the Azkcon Metal Industries detailed with the Power Construction Supply Company located at No. 130 Judge Juan Luna Street, San Francisco del Monte, this City, and as such has free access to the different departments of the company, with grave abuse of confidence, in conspiracy with his co-accused ARMANDO CAPARAS and RODOLFO ONGSECO y VEGO, conspiring together, confederating with and mutually helping one another, with intent to gain and without the knowledge and consent of the owner thereof, did then and there wilfully, unlawfully and feloniously take, steal and carry away assorted cold rolled sheets and scraps valued in the total amount of P194,865.00, Philippine Currency, belonging to Power Construction Supply Company, represented by WILLIAM HILO, to the damage and prejudice of the owner thereof in the aforementioned amount. "CONTRARY TO LAW." Appellant and his co-accused pled not guilty. Trial ensued. Appellant was an employee of Azkcon Metal Industries (Azkcon for brevity) from 1988 to 1992. He started working as a factory worker and later became a machine operator and a truck helper. From 1991 to 1992, he served as team leader at the cutting department under the supervision of Material Comptroller WILLIAM HILO who kept

track of all the materials coming in and going out of the companys plant in Kalookan City.[2] Azkcon has a business arrangement with Power Construction Supply Company (Power Construction) whereby Azkcon buys cold rolled sheets from the latter. These cold rolled sheets are also cut by Power Construction for a fee and Azkcon converts them into drums or containers. Appellants job was to go to Power Constructions establishment in Quezon City to oversee the cutting of the cold rolled sheets and ensure their delivery to Azkcon using the trucks sent by Hilo.[3] On April 21, 1992, appellant and his co-workers[4] went to Power Construction and loaded two cold rolled sheets in a truck owned by Azkcon. [5]Before entering the premises of Azkcon, appellant presented to security guard RUBEN DE LA CRUZ MANANGAN two receipts,[6] both dated April 21, 1992, covering the cold rolled sheets from Power Construction. Manangan inspected the contents of the truck. As everything was accounted for, Manangan stamped on the two receipts covering the materials. Appellant then presented a third receipt,[7] with Invoice No. 51111, dated March 23, 1992, for stamping. Manangan likewise stamped the third receipt. As the third receipt bore a different date, Manangan asked appellant if the materials covered by said receipt were in the truck. Appellant replied that the materials had long been delivered. Manangan did not investigate further but later reported the incident to the Chief of Security Department, AFLOR ONG. Ong checked the third receipt and when he failed to find the materials listed thereon, he reported to Hilo. [8] Upon receipt of the report, Hilo discreetly conducted a more in-depth investigation. He found out that the materials covered by the third receipt, worth P192,000.00, were not delivered to Azkcon. He checked the third receipt and the gate pass of Power Construction for March 23, 1992 - the date of the questioned transaction - and discovered that the truck used by appellant on said date did not belong to Azkcon. It also turned out that the subject materials had already been paid for by Azkcon. [9] Power Constructions security guard, JUN GAVARAN, confirmed that on March 23, 1992, appellant and his companions picked up cold rolled sheets from Power Construction and loaded them in a truck. The truck did not bear the logo of Azkcon. Gavaran noted on a ledger that the truck came at 2:15 p.m. and left at 3:35 p.m. Hilo did not immediately report the matter to his superior. He chose to wait for appellant to commit a similar misdemeanor and catch him red-handed. He waited in vain. He then decided to inform his superiors about the theft in May 1992. Hilo was directed to report the theft and file a complaint with the police authorities. A police team, led by SPO3 ALFREDO ALFARO, investigated appellant at Azkcon. Appellant insisted that the materials covered by the third receipt had been delivered to Azkcon. The investigation of appellant continued at the police station. PO3 Andres Balod interrogated appellant. Appellant asked for a lawyer and was brought to the Integrated Bar of the Philippines (IBP) where he was assisted by Atty. Florimond C.

Rous. Atty. Rous talked to him and inquired if he was willing to give a statement to the police. The interrogation then proceeded and appellant admitted his participation in the theft. He disclosed that his cohorts on May 23, 1992 were ARMANDO CAPARAS and RODOLFO ONGSECO, former employees of Azkcon. He revealed that they usually loaded the stolen materials in a truck rented by Caparas and Ongseco. He receivedP10,000 to P35,000[10] for his participation in the different thefts.[11] Appellant affixed his signature on the written statement. [12] After the investigation, PO3 Balod referred the case to Fiscal Paragua. h Y The next day, the police went to Malinta, Valenzuela and apprehended accused Caparas and Ongseco. It was appellant who pointed out the residence of Caparas and Ongseco to the police. The two identified a certain Chua as the alleged buyer of the stolen goods. The police invited Chua for investigation. Inexplicably, the investigation of Chua was not reduced to writing.[13] Appellant denied participation in the crime charged. He described his job as team leader at the cutting department of Azkcon. He said that Hilo would order him to proceed to Power Construction Supply to oversee the cutting and procurement of the materials needed by Azkcon. Hilo would then instruct him to wait for his call and the arrival of their truck at Power Construction Supply. They would usually use Azkcons trucks, but at other times, Hilo would rent trucks from others.[14] As soon as the truck would arrive at the premises of the supplier, the driver would ask for appellant. He would then load the materials in the truck and would show the receipts covering the materials to the security guard of Power Construction Supply for stamping. The materials inside the truck would be counterchecked against the quantity and quality stated in the receipts. Appellant would then return to Azkcon usually at about 4:00 p.m. Thus, he would mainly stay at the suppliers premises to oversee the cutting of the cold rolled sheets.[15] Appellant claimed he does not know prosecution witness Jun Gavaran, the security guard of Philippine Construction Supply. He also denied knowing accused Caparas and Ongseco. Allegedly, he saw them for the first time at the police station. He admitted knowing prosecution witnesses Manangan and Ong. He acknowledged that he had no quarrel with Gavaran, Manangan and Ong.[16] On May 21, 1992, four (4) policemen in civilian clothes arrested him without a warrant while working in Azkcon. They told him that Hilo filed a complaint against him. He was detained at the La Loma police station. Hilo came and pointed him as the one responsible for the theft but without informing him what he stole. Upon orders of Hilo, the policemen started to beat him. They forced him to admit the crime. They also compelled him to give a statement but he refused. [17] The next day, the policemen and Hilo brought him to Valenzuela. Hilo indicated to the policemen the residence of accused Caparas and Ongseco. That was the first time he saw his co-accused.[18]

Then, the policemen forced appellant to go to the IBP office in Quezon City. They gave him Atty. Rous as counsel although he insisted on hiring his own counsel. Atty. Rous never conferred with him. No investigation was conducted at the IBP. The police did not ask him a single question. Without reading his prepared statement, he signed it as the police threatened to harm him. He acknowledged his signatures on the invoices marked as Exhibits "A" to "D",[19] but claimed he could not recall the circumstances under which he signed them.[20] After seven (7) days at the La Loma police station, he was taken to the Fiscals Office in Quezon City. The inquest fiscal did not talk to him. He was asked about the voluntariness of his signature in his extra-judicial confession.[21] Thereafter, he was brought back to the station. [22] Appellants father, PABLO BAGO, testified that on June 15, 1992, he went to the NBI to seek protection for his son as they were receiving threats from Hilo and police officers Balod and Alfaro. Days later, Hilo, Alfaro and Balod went to his house in Quezon City looking for appellant. Hilo warned that appellant should admit the crime lest something untoward would happen to him.[23] Again, after his sons arraignment, a certain Col. Hernandez visited their house and insisted on taking appellant to Azkcon. Pablo refused, arguing that the case had already been filed in court. [24] On another occasion, Col. Hernandez and his lady friend dropped by his house and convinced him and his son to talk to Mr. King, the owner of Azkcon. During their meeting, Mr. King allegedly told Pablo that he knew that appellant was innocent but asked him to testify against the persons responsible for the crime. Pablo replied that they would think about the proposal.[25] Mr. Kings lawyer, Atty. Capistrano, also gave him the same advice. Atty. Capistrano requested them to go to his office where appellant could execute a statement. Instead of going there, Pablo and the appellant proceeded to the office of appellants lawyer.[26] Allegedly, appellant was maltreated while in the custody of the police. Pablo claimed that he reported the physical abuse to the NBI.[27] Prosecutions rebuttal witness ATTY. FLORIMUND C. ROUS, free legal aid counsel of IBP, testified that on May 22, 1992, appellant was brought to their office for the execution of his extra-judicial confession. As a matter of procedure, he first examined the body of appellant to determine any sign of physical abuse or maltreatment while the latter was in police custody. Finding none, he inquired from appellant whether he was willing to confess to the commission of the theft. Beforehand, he already informed appellant of the consequence of his confession, i.e., that it could be used against him. Nonetheless, appellant affirmed his willingness to execute a written confession. Thus, the policeman proceeded to take the statement of appellant. Appellant signed his extrajudicial confession[28] in his (Atty. Rous) presence. Rebuttal witness ATTY. MELANIO CAPISTRANO testified that he was Azkcons legal counsel. He confirmed that a conference was held at Azkcon premises in connection

with the theft. Present were appellant, Pablo Bago, Mr. King and a former employee of Azkcon. Due to the complexity of the modus operandi, Mr. King suspected that appellant had other companions in committing the theft. Mr. King then informed him that appellant had agreed to turn state witness. Appellant confessed that his supervisor William Hilo, a certain Severino Encarnacion and his co-accused Ongseco and Caparas took part in the heist. Allegedly, Encarnacion was the brains behind the theft; Hilo took care of the operations on the Azkcon side, while Ongseco and Caparas took care of the procurement of the stolen goods. Atty. Capistrano expressed reservations about the involvement of Hilo as he was the one who reported the theft to the management. After the conference, he advised appellant to consult his own lawyer and execute a statement so he could determine if they would use appellant as a state witness. Prior to his arraignment, appellant was told that he should decide whether he wanted to be a state witness. In their next scheduled meeting, appellant and his lawyer, Atty. Jambora, failed to appear.[29] On sur-rebuttal, Pablo Bago insisted that on July 1992, Col. Hernandez went to Pearanda, Nueva Ecija and took pictures of his house. Col. Hernandez invited him and appellant to go to Azkcon. They refused as appellant had already posted bail at that time. Atty. Capistrano, on the other hand, insisted that appellant should name the other employees involved in the theft so that they could be dismissed from the company. [30] On April 26, 1995, the Regional Trial Court of Quezon City[31] convicted appellant of qualified theft. Accused Caparas and Ongseco were acquitted for insufficiency of evidence. The dispositive portion of the decision[32] reads: "WHEREFORE, in view of all the foregoing, the Court finds accused REYNALDO BAGO y MADRID guilty beyond reasonable doubt as principal of the crime of Qualified Theft as defined and penalized under Article 308, in relation to Article 309, paragraph 1 and Article 310 of the Revised Penal Code, and hereby sentences said accused to an indeterminate penalty of imprisonment ranging from Twenty (20) years and One (1) day of Reclusion Perpetua as minimum to Twenty-Eight (28) years, Ten (10) months and One (1) day of Reclusion Perpetua as maximum, with the accessory penalties of the law and to indemnify the complainant in the sum of P194,865.00, representing the value of the stolen cold rolled sheets, without subsidiary imprisonment in case of insolvency, and to pay the costs. "Accused ARMANDO CAPARAS Y CUENCO and RODOLFO ONGSECO Y VEGO are hereby ACQUITTED for insufficiency of evidence. "SO ORDERED." Appellant moved for reconsideration of the trial courts decision. The motion was denied for lack of merit,[33] although the dispositive portion of the trial courts decision was amended, thus:

"WHEREFORE, in view of all the foregoing reasons, the Motion for Reconsideration is hereby DENIED for lack of merit. "Pursuant to People vs. Conrado Lucas (240 SCRA 66), [the] dispositive portion of the decision is hereby modified but only insofar as accused Reynaldo Bago is concerned to read as follows: "WHEREFORE, in view of all the foregoing, the Court finds accused Reynaldo Bago y Madrid GUILTY beyond reasonable doubt as principal in the crime of Qualified Theft as defined and penalized under Article 309, paragraph 1 and Article 310 of the Revised Penal Code, and hereby sentences said accused to the penalty of reclusion perpetua, with the accessory penalties of the law, and to indemnify the complainant in the sum of P194,865.00, representing the value of the stolen cold rolled sheets, without subsidiary imprisonment in case of insolvency, with costs. "SO ORDERED." The Appellants Brief raises two issues, to wit: Misoedp
I.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME OF QUALIFIED THEFT BASED ON CIRCUMSTANTIAL EVIDENCE PRESENTED BY THE PROSECUTION.
II.

THE TRIAL COURT ERRED IN CONCLUDING THAT THE PROSECUTION HAS PROVEN THE GUILT OF THE ACCUSED, REYNALDO BAGO, BEYOND REASONABLE DOUBT. We affirm with modification. Appellant contends that the prosecution failed to prove even by circumstantial evidence that he asported the cold rolled sheets in question. He asserts that these materials were delivered to Azkcon as evidenced by the receipt[34] duly stamped by the guard on duty. He states: "x x x [T]he best evidence that the materials were actually delivered at Azkcon Metal Industries is the receipt duly stamped by the guard on duty. Res ipsa loquitor. To receive the testimony of the security guard, that he stamped the receipt even without the goods because he trusted the accused, would set a precedent that will eventually convict an innocent person. After duly stamping the receipt, it is very easy for the security guard to claim otherwise to avoid liability." [35]

Appellant also contends that his task was to oversee the delivery of the materials from their supplier to Azkcon. Allegedly, it was erroneous to conclude that he stole the materials just because they could not be found in its premises as he was not responsible for any material lost therein. Lastly, appellant belittles the documents showing that the truck he used in taking out the materials from Power Construction on March 23, 1992 did not belong to Azkcon. He claims that said documents had no bearing on his culpability. Scjuris We reject these contentions. Mis-edp First. Appellant, in effect, assails the testimony of Ruben Manangan, the security guard who stamped the receipt marked as Exhibit "C", on the ground that the receipt itself shows that the materials were delivered to Azkcon. Appellant argues that the receipt is the best evidence and should be given more credence than Manan gans testimony. Appellants argument is bereft of merit for Manangans testimony is corroborated by another witness, William Hilo, Material Comptroller of Azkcon who kept track of all materials coming in and going out of Azkcons plant. He testified that on April 21, 1992, he received three (3) receipts but only two (2) materials were delivered to Azkcons premises. The receipt marked as Exhibit "C" covered the missing materials. Manangans testimony is further corroborated by two (2) pieces of documentary evidence: first, by Power Construction Supply Co. Gatepass Invoice No. 51111 dated March 22, 1992[36] which shows that the materials covered by Exhibit "C" were taken out by appellant from the premises of Power Construction Supply on March 23, 1992, about a month before the receipt was stamped; and second, by a document from Power Construction Supply dated March 23, 1992 containing information about the truck used in pulling out the materials from Power Construction Supply on said date. The truck bore license plate no. PRC-513 and was not owned by Azkcon. The truck belonged to a certain Ruel Fernando who had no contractual relation with Azkcon and said vehicle was not to be used to take out materials from Power Construction Supply. In view of these corroborations, we hold that the trial court did not err in giving credence to Manangans testimony despite the receipt. Es m Appellant can not rely on the best evidence rule which states: Msesm "SEC. 3. Original document must be produced; exceptions . - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and Exsm (d) When the original is a public record in the custody of a public officer or is recorded in a public office."[37] The rule cannot be invoked unless the content of a writing is the subject of judicial inquiry, in which case, the best evidence is the original writing itself. The rule pertains to the admissibility of secondary evidence to prove the contents of a document. In the case at bar, no secondary evidence is offered to prove the content of a document. What is being questioned by appellant is the weight given by the trial court to the testimony of Manangan over the receipt which on its face shows that the materials in question were delivered to Azkcons premises. Clearly, the best evidence rule finds no application on this issue. Es msc Second. It is well settled that before conviction can be based on circumstantial evidence, the circumstances proved should constitute an unbroken chain of events which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of others, as the author of the crime. [38] Thus, the following requisites must be met: 1) there must be more than one circumstance; 2) the facts from which the inferences are derived are proven; 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. [39] In the case at bar, the trial court convicted the appellant based on this chain of events: Court "1. Azkcon Metal Industries is engaged in metal business and for this purpose contracted a business arrangement with Power Construction Supply whereby Azkcon purchases the cold rolled sheets from the latter and the cold rolled sheets are cut by Power Construction Supply; "2. Accused Bago is a trusted employee of Azkcon and detailed with Power Construction Supply Company in charge of the Cutting Department; and that as such he was authorized by Mr. William Hilo, Controller Manager of Azkcon, to pull out from the Power Construction Supply the cut materials and to deliver the same to Azkcon; "3. On April 21, 1992, accused Bago, together with his co-employees, Danilo Baylosis and Candido Querobin entered the Azkcon premises with deliveries of two cold rolled sheets loaded in the truck. Security Guard Manangan inspected the materials in the truck and after confirming that the materials were loaded in the truck, he stamped the receipts upon request of accused Bago. Thereafter, accused Bago brought out another

receipt and requested Security Guard Manangan to likewise stamp the same.Security Guard Manangan checked the goods covered by the third receipt and found there were no cold rolled sheets for the third receipt. The third receipt carried a different date. Security Guard Manangan asked accused Bago as to the whereabouts of the materials covered by the third receipt and the latter replied that they had long been delivered. Nevertheless, Security Guard Manangan stamped this last receipt because he trusted that accused would not do anything bad; "4. On April 21, 1992, William Hilo, the material controller of Azkcon, discovered that there were three (3) receipts which came in, but only two materials were delivered inside the company compound. The materials covered by the two (2) receipts were delivered but the materials covered by the third receipt were not. Hilo conducted an inventory and asked accused Bago the whereabouts of the materials in question. Accused Bago insisted that the materials had long been delivered. Hilo proceeded with his investigation and was able to secure from the Power Construction Supply Company Gatepass Invoice No. 51111 dated March 22, 1992 (Exh. "D") which shows that the materials covered by the third receipt were taken out by accused Bago from the premises of Power Construction Supply on March 23, 1992; J lexj "5. Hilo was able to secure from Power Construction Supply a document dated March 23, 1992 (Exh. "E") which contained information on the truck used in pulling out the materials from Power Construction Supply on March 22, 1992 (sic). The truck bears Plate No. PRC-513 and is not owned by Azkcon. As per copy of the certificate of registration secured from the Land Transportation Office, the truck is owned by a certain Ruel Fernando who has no contractual relations with Azkcon. Said vehicle is likewise not authorized to pull out materials from the Power Construction Supply." The trial court concluded that the foregoing circumstances lead to a reasonable conclusion that appellant asported the materials covered by Exhibit "C". We agree. Misact Appellant cannot rely on the fact that the third receipt was duly stamped by security guard Ruben Manangan on April 21, 1992. Manangan explained well why he stamped the receipt. He said:[40] "Q: On April 21, 1992, did you report for work as security guard at AZKCON Metal Industries? A: Yes, sir.

Q: And was there any unusual incident that transpired on that day, if you recall? A: There was a truck which was carrying two (2) cold rolled sheets. xxxxxxxxx Q: By the way, who were with (sic) the truck which carried the (2) cold rolled sheets which you mentioned? A: Bago sir. Esmm is xxxxxxxxx Q: Now, when this truck came [in], with Reynaldo Bago with Bailosis and Querubin, carrying deliveries of two (2) cold rolled sheets, what happened after that, if anything happened? A: After I inspected the two (2) cold rolled sheets, I stamped the receipts for them. Q: Before you stamped the receipts for these two (2) cold rolled sheets, did you make sure that the goods were there? A: Yes sir. Q: What happened after that? A: After I stamped the two (2) receipts, he brought out another receipt which they asked me to stamp also. Q: By the way, who asked you to stamp the two (2) receipts covering the two (2) cold rolled sheets loaded in the truck? A: Bago sir. xxxxxxxxx COURT xxxxxxxxx Q: And who was the one who brought out this other receipt for stamping? A: Bago sir.

Q: And what did he tell you, if he told you anything about this receipt? A: He said "please put a stamp on this receipt". Q: Did you? A: Yes, because I trusted him. Lexj uris Q: And did you also check whether the goods covered by this 3rd receipt was (sic) in the truck unloaded? A: Sir there was no cold rolled sheet for that receipt. Q: And why did you stamp this receipt for cold rolled sheets for that receipt? (sic) A: Because I trusted him that he would not do anything bad. xxxxxxxxx Q: Now, in spite of the fact that your personal knowledge of the person Reynaldo Bago was in the course of your performance of your duty, including Reynaldo Bago (sic), you would like to impress upon us that in spite of that you trusted him? ATTY. CAPISTRANO: Argumentative, your Honor. Kyle COURT: Witness may answer. A: Yes sir. Q: In spite of the fact that the 3rd receipt according to you, when you inspected it, there was no cold rolled sheets covering "Exhibit "C"? A: No material sir. Mis-oedp Q: In spite of the fact that you did not find any Cold Rolled Sheets material you still honored the receipt by affixing you signature after you stamped it, correct? A: Yes sir, but when I saw the receipt it had a different date.

Q: xxx [D]id you ask Reynaldo Bago "why is it a different date" and "why are there no Cold Rolled Sheets is (sic) the 3rd receipt"? A: I asked him "where these materials are" and he told me that it has (sic) long been delivered. Q: Now did you ask him where it was (sic) delivered and what place of AZKCON did he deposit these Cold Rolled Sheets which are (sic) covered by this 3rd receipt? A: No, sir. Q: Now with regards (sic) to your duty as security guard, did you call the attention of the management about this 3rd receipt with no Cold Rolled Sheets and you stamped the receipt knowing that there was (sic) no materials inside. Did you ask the management, the president, the manager, the foreman or whoever it is (sic) on duty at the time? A: I reported it to our chief Aflor Ong. Ed-pm-is Q: Who is this Aflor Ong? A: Chief."[41] The fact of non-delivery of the subject materials to Azkcon was established through the testimony of two other witnesses, namely, William Hilo and the Chief Security Officer Aflor Ong. Hilo declared:[42] "ATTY. CAPISTRANO Q: On April 21 (1992), would you please tell us what happened on that date? A: On April 21, the materials arrived and the guard checked it (sic) and I checked it (sic) also. We found out that there were three (3) receipts but there were only two (2) materials inside the company. Q: How did you come to know this, Mr. Witness? Calrsc A: It was reported by the OIC of the Security Guard, sir. Q: You spoke of three (3) receipts, did you come to see these receipts? A: Yes, sir. Q: If I will show you them again (sic), will you be able to identify the same?

A: Yes, sir. Q: I am showing to you these receipts which was (sic) previously marked as Exhibits "A", "B" and "C", are these the three (3) receipts which you mentioned a while ago? A: Yes, sir. Q: Would you kindly take a look at these receipts and tell the Honorable Court, which particular receipt is controversial in the sense that the goods described therein did not enter your company premises? ATTY. HAMBON: (sic) I will object to that, Your Honor, incompetent. COURT: The witness may answer. (The witness is examining the document) INTERPRETER: Witness is pointing to Exhibits "A" and "B", as the one with the materials arrived (sic) and pointed to Exhibit "C" as the controversial receipt. ATTY. CAPISTRANO: xxxxxxxxx Q: For how long have you known Reynaldo Bago? A: Since (sic) two (2) years, sir. Q: What is the specific function of Reynaldo Bago in your company? A: Reynaldo Bago is in charge of Cutting Department. Q: As a Material Controller, do you have any supervision of (sic) Reynaldo Bago? A: Yes, sir.

Q: By the way, at the bottom portion of Exhibits "A", "B" and "C", there appears a signature, can you go over this (sic) and tell the Honorable Court, whose signatures stated (sic) therein? A: This is a signature of Reynaldo Bago. INTERPRETER: Witness is pointing to a signature on Exhibit "A". Jle-xj ATTY. CAPISTRANO: Which I request, You Honor, to be marked as Exhibit "A-2". COURT: Mark it. Esmsc ATTY. CAPISTRANO: Q: How about in Exhibit "B"? A: The same it was the signature of Reynaldo Bago. ATTY. CAPISTRANO: At this juncture, Your Honor, may I request that this portion be marked as Exhibit "B-2". Q: How about Exhibit "C"? A: The same Mr. Reynaldo Bagos signature. ATTY. CAPISTRANO: May I request, Your Honor, that the pointed portion of Exhibit "C", be marked in evidence as Exhibit "C-2". Q: Why do you know that these are the signature (sic) of Reynaldo Bago? A: Because I am in charge of Reynaldo Bago, and I know his signature. Q: If Reynaldo Bago is in Court, can you point to him? INTERPRETER: Calrky

Witness is pointing to a person who identified himself as Reynaldo Madrid Bago. ATTY. CAPISTRANO: Q: You said that this matter was reported to you by the OIC of the Security Guard, (sic) when this matter was reported to you, what step or steps did you take, if any? A: I conducted an actual inventory and confronted Reynaldo Bago and asked him where are (sic) the materials which is (sic) in question. Q: You said that your (sic) conducted an actual inventory what was your findings in your inventory? A: According to my findings the materials did not reach the company. ATTY. HAMBON: (sic) Your Honor, may I request that [that] portion be stricken-off the record. COURT: The witness may answer, place that on record. ATTY. CAPISTRANO: When you said that according to your findings that (sic) the materials did not arrive, to what particular receipt are (sic) you referring to? Misedp This one, sir. INTERPRETER: Witness is pointing to Exhibit "C". Q: You said that you confronted Reynaldo Bago, what transpired during your confrontation? A: He told me that the material arrived long before but when I checked it out, I found out that it didnt arrived" (sic). Prosecution witness Aflor Ong testified as follows: [43]

"Q: And would you kindly inform this Honorable Court whether there is any unusual incident that transpired on April 21, 1992 as you were then performing your duty as chief security guard. A: About the receipts of materials delivered, Sir. Q: Would you kindly elaborate on that? A: There were 3 receipts but only two (2) items were delivered. Q: And how did you come to know this? A: It was reported to me by the security guard on duty. Q: And who was this security guard who reported the matter to you? A: Security guard Ruben Manangan, Sir. Q: And when this matter was reported to you, what did you do, if you did anything? A: I checked it also and after I checked, I reported it to William Hilo. Q: What precisely did you check? A: The items. Q: Did you find these items for the 3rd receipt? A: None, Sir. xxxxxxxxx Q: Now according to you, on April 21, 1992 you were at AZKCON Metal Industries? A: Yes Sir. Q: And your attention was invited on the first two receipts, containing the Cold Rolled Materials? ATTY. CAPISTRANO: Misleading your Honor. COURT:

Three (3) Receipts. Q: Your attention was invited by 3 receipts. A: After the guard reported it to me, Sir. Q: Who was this guard who reports (sic) to you? ATTY. CAPISTRANO: Already answered your Honor. COURT: Witness may answer. A: Ruben Manangan. Q: What time did he make the report? A: Four to Five in the afternoon Sir. Q: And what was the report all about? A: About two (2) cold rolled sheets, Sir. Q: What is it? A: Only two (2) cold rolled sheets were delivered, one is (sic) missing. Q: And, of course, the security guard showed to you the 3rd receipt which did not cover the materials in the cargo truck? ATTY. CAPISTRANO: Misleading again, your Honor. COURT: Witness may answer. A: Witness may answer (sic). Q: You are, of course, referring to Exhibit "C"? A: Yes, Sir.

Q: At the time the report was shown to you, did you inspect the truck? A: Yes, Sir. Scslx Q: And you did not find actually the materials? A: I did not find the material covering this Exhibit "C". Q: Covering the 3rd receipt? A: Yes, Sir. Q: After you inspected, what action did you take, because it was reported to you by the security guard? A: I reported it to Mr. William Hilo, the one in-charge of the materials."[44] The trial court correctly found that appellant was a trusted employee of Azkcon. He was in-charge of overseeing the cutting of the materials at Power Construction and ensuring their delivery to Azkcon. Due to this trust, he succeeded in withdrawing from the said supplier the cold rolled sheets covered by Exhibits "A" and "B" dated April 21, 1992 and Exhibit "C" (Invoice No. 51111), dated March 23, 1992. Appellant signed these receipts to signify that he obtained the materials from the supplier. However, only the materials covered by Exhibits "A" and "B" were delivered to Azkcon on April 21, 1992. Those covered by Exhibit "C" were not delivered. Significantly, the materials procured on April 21, 1992 were delivered that same day, as shown by the stamp marks on Exhibits "A" and "B". In contrast, the materials he took from the supplier on March 23, 1992 could not be found in the premises of Azkcon and there was no evidence that he delivered them on said date or on any other day thereafter. Inexplicably, appellant presented the third receipt (Invoice No. 51111) dated March 23, 1992 for stamping only on April 21, 1992. The reasonable conclusion is that he asported the materials covered by Exhibit "C". Clearly, all the elements of theft were established, to wit: (1) there was a taking of personal property; (2) the property belongs to another; (3) the taking was without the consent of the owner; (4) the taking was done with intent to gain; and (5) the taking was accomplished without violence or intimidation against the person or force upon things.[45] As the theft was committed with grave abuse of confidence, appellant is guilty ofqualified theft. Third. We now come to the correctness of the penalty imposed on appellant. The trial court sentenced the appellant to suffer the penalty of reclusion perpetua. In its Comment, the Office of the Solicitor General opined that the penalty was erroneous. It noted that:

"The present case falls under Article 308, in relation to Article 309, paragraph one (1) and Article 310 of the Revised Penal Code, for the purpose of determining the penalty to be imposed on appellant. x x x. "Since the lower court found that the value of the thing stolen was P194,865.00, the penalty prescribed in this case, had it been a case of simple theft, is imprisonment of 20 years corresponding to reclusion temporal. Since the offense was committed with grave abuse of confidence, then the prescribed penalty for qualified theft proven in this case is death, which is the penalty next higher by two degrees than the given penalty for simple theft above mentioned. In which event, this case is subject further to the rules provided in Article 74, in relation to Article 40 of the Revised Penal Code. They provide: ART. 74. Penalty higher than recl usion perpetua in certain cases In cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, if such higher penalty should be that of death, the same penalty and the accessory penalties of article 40, shall be considered as the next higher penalty. xxxxxxxxx ART. 40. Death Its accessory penalties The death penalty, when it is not executed by reason of commutation or pardon,shall carry with it that of perpetual absolute disqualification and that of civil interdiction during the thirty years following the date of the sentence, unless such accessory penalties have been expressly remitted in the pardon.' Consequently, the penalty actually prescribed in this case for the crime of qualified theft is twenty (20) years of reclusion temporal, together with the accessory penalties of perpetual absolute disqualification and that of civil interdiction during thirty (30) years following the date of the sentence. "Since this case is subject to the Indeterminate Sentence Law, the determination of the maximum and minimum ranges of the sentence is governed by rules contained in the analogous case of People v. Pabalan, to wit: Applying the mandate of the Indeterminate Sentence Law, the maximum penalty shall therefore be taken from the maximum period of said basic penalty in Article 315 as augmented by the additional years of imprisonment, while the minimum term of the indeterminate sentence shall be within the range of the penalty next

lower in degree to that provided by law, without considering the incremental penalty for the amounts in excess of P22,000.00. xxx' Based on the foregoing considerations, the penalty imposed on appellant should fall within the minimum range of prision correccional in its medium and maximum periods, with a duration of two (2) years, four (4) months and (1) day to six (6) years, and twenty (20) years of reclusion temporal with the accessory penalties of death, as maximum. It is respectfully recommended that appellant be sentenced to the penalty of six (6) years of prision correccional as minimum, to twenty (20) years of reclusion temporal with the accessory penalties of death as maximum." We disagree. Article 309 of the Revised Penal Code provides the penalty for simple theft. It reads: "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 exceed 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 orreclusion temporal, as the case may be." The value of the property stolen by appellant was P194,448.00. Under Article 309, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period since the value of the stolen goods exceeded P22,000.00. To determine the additional years of imprisonment prescribed in Article 309 (1), we have to deduct the amount of P22,000.00, thus leaving the amount of P172,448.00. Next, the net amount should be divided by P10,000.00, disregarding any amount below P10,000.00. Thus, seventeen (17) years must be added to the basic penalty of the maximum period of prision mayor minimum and medium periods.[46] The penalty of prision mayor in its minimum and medium periods has a range of six years (6) and one (1) day to ten (10) years. Its maximum period is eight (8) years, eight (8) months and one (1) day to ten (10) years, and the incremental penalty is seventeen (17) years. Had appellant committed simple theft, the penalty should have been twenty years of reclusion temporal, the maximum penalty allowable under Article 309, subject to the Indeterminate Sentence Law. Slxmis Considering that the theft is qualified by grave abuse of confidence, the penalty is two degrees higher than that specified under Article 309.[47] In the case of People vs. Caales,[48] we were confronted with the same issue of determining how the penalty

under Article 309 should be increased by two degrees. In said case, we adopted the disquisition of the appellate court, thus: Slxsc "x x x. Under Article 25 of the Revised Penal Code, two degrees higher than reclusion temporal is death. This is likewise conformable with Article 74 of the Revised Penal Code, which provides that: ART. 74. Penalty higher than reclusion perpetua in certain cases.In cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, if such higher penalty should be that of death, the same penalty and the accessory penalties of Article 40, shall be considered as the next higher penalty. x x x. "The provision however, proscribes the imposition of the death penalty resulting from the graduation of the penalty. It bears stressing that Article 74 of the Revised Penal Code was based on Article 93 of the old Penal Code which provided that if the penalty is reclusion perpetua, the next higher penalty would be the same penalty but the convict in such cases cannot be pardoned until forty years had elapsed ( Aquino, Comments on the Revised Penal Code, 1987 ed., Volume 1, page 709). But there is a pervading divergence of opinion among commentators of the Revised Penal Code as to what the higher penalty referred to in Article 74 of the Revised Penal Code should be. Some authors are of the view that the higher penalty would be reclusion perpetua with the accessory penalties for the said penalty. But then, under Article 74 of the Revised Penal Code, the accessory penalties under Article 40 of the Revised Penal Code should be imposed. Still others, like former Senator Ambrosio Padilla, are of the view that the higher penalty is reclusion perpetua with the accessory penalties of death under Article 40 of the Revised Penal Code if the death penalty is commuted. But then, the accessory penalty under Article 40 of the Revised Penal Code is perpetual absolute disqualification and civil interdiction during thirty (30) years following the date of sentence, whereas, the accessory penalty of reclusion perpetua under Article 41 of the Revised Penal Code is civil interdiction for life and perpetual absolute disqualification. As aptly observed by former Chief Justice Ramon C. Aquino, there seems to be an absurdity under the latter view (Aquino, Comments on the Revised Penal Code, supra ). On the other hand, Justice Albert is of the firm view that:Esmmis The Code meant to say here that the judgment should provide that the convict should not be given the benefit of the provisions of Article 27 until forty years should have elapsed; otherwise, there could be no difference at all between reclusion perpetua when imposed as a penalty next higher in degree and when it is imposed

as the penalty fixed by law. (Albert, Comments on the Revised Penal Code, 1932 edition, page 240). to which Justice Luis Reyes subscribes (Reyes, Comments on the Revised Penal Code, 1981 ed., Vol. 1, page 746 ). Former Chief Justice Ramon C. Aquino likewise is in accord with the opinion of Justice Albert. x x x. Justice Albert believes that the penalty higher than reclusion perpetua is reclusion perpetua for forty years with the accessory penalties of death under Art. 40. Otherwise, as he said there could be no difference at all between reclusion perpetua, when imposed as the penalty next higher in degree and when it is imposed as the penalty fixed by law. This opinion is supported by Art. 93 of the old Penal Code from which Art. 74 was taken. Art. 93 provides that if the given penalty is cadena perpetua or reclusion perpetua, the next higher penalty shall be these same penalties but the convict in such case cannot be pardoned until forty years have elapsed. (Aquino, Comments on the Revised Penal Code, 1987 ed., Volume 1, pages 708-709).' "We are likewise in accord with the opinion of Justice Albert as a logical explanation of Article 74 of the Revised Penal Code. Consequently, Caales should be meted the penalty of Reclusion Perpetua for Forty Years with the accessory penalties of death under Article 40 of the Revised Penal Code. In fine, Caales is not entitled to pardon before the lapse of the forty-year period (Reyes, Comments on the Revised Penal Code, 1977 ed., Volume 1, page 747)." This reiterated our ruling in People vs. Reyes,[49] where we held: Mesm "In the crime of theft, if the value of the thing stolen exceeds P22,000.00, the penalty shall be prision mayor in its maximum period and one year for each additional P10,000.00, but the total penalty shall not exceed twenty years or reclusion temporal. However, if that crime of theft is attended by any of the qualifying circumstances which convert the taking into qualified theft, the penalty next higher by two degrees shall be imposed, that is, at least, reclusion perpetua."[50] In accord with the foregoing, we hold that appellant was correctly meted the penalty of reclusion perpetua, with the accessory penalties of death under Article 40 of the Revised Penal Code. Missdaa Fourth. As regards the grant of actual damages, the rule is that actual damages cannot be allowed unless supported by evidence in the record. [51] William Hilo testified that the

value of the missing cold rolled sheets was P192,000.00 and the incurred cutting cost was P2,448.00, for a total value of P194,448.00.[52] Thus, the award for actual damages must be reduced by P417.00. IN VIEW WHEREOF, the April 26, 1995 Decision of the Regional Trial Court of Quezon City (Branch 92), in Criminal Case No. Q-92-30833, as amended by the Order dated August 15, 1995, is AFFIRMED subject to the modification that the actual damages is reduced to P194,448.00.Kycalr SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

[1] [2]

Original Records, p. 1. TSN, Reynaldo Bago, March 16, 1993, pp. 3-4; July 19, 1993, pp. 4 and 7. [3] TSN, William Hilo, August 24, 1992, pp. 18-19; TSN, Reynaldo Bago, March 16, 1993, pp. 5-8. [4] Danilo Baylosis and Candido Querobin. [5] TSN, Jun Gavaran, September 7, 1992, pp. 8-9. [6] Exhibits "A" and "B". TSN, Ruben De La Cruz, August 18, 1992, pp. 3-4. [7] Exhibit "C". [8] TSN, Ruben Manangan, August 18, 1992, pp. 3-8, 11-15; TSN, Aflor Ong, August 18, 1992, pp. 20-27. [9] TSN, William Hilo, August 24, 1992, pp. 3-10, 14-17. [10] TSN, Andres Balod, September 7, 1992, pp. 25-28. [11] TSN, Andres Balod, September 7, 1992, pp. 25-28. [12] Id., pp. 48-49. [13] TSN, Alfredo Alfaro, August 10, 1992, pp. 4-6, 10-13. [14] TSN, Reynaldo Bago, March 16, 1993, pp. 5-8; July 19, 1993, pp. 36-37.
[15] [16] [17]

TSN, Reynaldo Bago, July 19, 1993, pp. 14, 34-35. TSN, Reynaldo Bago, March 16, 1993, pp. 9-13. [18] TSN, Reynaldo Bago, September 9, 1993, pp. 6-7. [19] Invoice Nos. 51429, 51428, 51111 (Customers Copy) and 51111 (Gate Pass), Original Records, pp. 90 -93. [20] TSN, Reynaldo Bago, March 16, 1993, pp. 13-19; September 9, 1993, p. 4. [21] Exhibit "K"; Original Records, pp. 101-102. [22] TSN, Reynaldo Bago, September 9, 1993, pp. 9-12. [23] TSN, Pablo Bago, September 13, 1993, pp. 5-7. [24] Id., pp. 7-9. [25] TSN, Pablo Bago, September 13, 1993, pp. 10-14. [26] Id., pp. 15, 20. [27] Id., pp. 27-28. [28] Exhibit "K"; TSN, Atty. Florimund Rous, November 29, 1993, pp. 6-14. [29] TSN, Atty. Melanio Capistrano, April 25, 1994, pp. 7-18. [30] TSN, Pablo Bago, August 1, 1994, pp. 4-9. [31] Branch 92. [32] Rollo, pp. 39-62. Penned by Presiding Judge Juan Q. Enriquez. [33] Order dated August 15, 1995, Original Records, pp. 291-294. [34] Exhibit "C". [35] Appellants Brief, Rollo, pp. 140-141. [36] Exhibit "D".

[37] [38]

Rules of Court, Rule 130, Sec. 3. People vs. Maqueda, 242 SCRA 565 (1995); People vs. Lorenzo, 240 SCRA 624 (1995). [39] People vs. Cadevida, et al., 219 SCRA 218 (1993). [40] TSN, Ruben Manangan, August 18, 1992, pp. 3-5, 13-14. [41] Emphasis ours. [42] TSN, William Hilo, August 24, 1992, pp. 4-8. [43] TSN, Aflor Ong, August 18, 1992, pp. 20-25. [44] Emphasis ours. [45] Article 308, Revised Penal Code. "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 latters consent. " [46] Cf. People vs. Pabalan, 262 SCRA 574, 591 (1996). [47] Article 310, Revised Penal Code provides: "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 article, if committed with grave abuse of confidence " [48] 297 SCRA 667, 676-678 (1998). [49] People vs. Reyes, 212 SCRA 402, 411-412 (1992). [50] Emphasis ours. [51] People vs. Nialda, 289 SCRA 521 (1998). [52] TSN, William Hilo, August 24, 1992, p. 17.

THIRD DIVISION

[G. R. No. 148233. June 8, 2004]

PEOPLE OF THE PHILIPPINES, appellee, BUSTINERA, appellant. DECISION

CARPIO MORALES, J.:

vs. LUISITO

D.

From the decision[1] of the Regional Trial Court, Branch 217, Quezon City finding appellant Luisito D. Bustinera guilty beyond reasonable doubt of qualified theft[2] for the unlawful taking of a Daewoo Racer GTE Taxi and sentencing him to suffer the penalty of reclusion perpetua, he comes to this Court on appeal. In an information[3] dated June 17, 1997, appellant was indicted as follows:

The undersigned accuses LUISITO D. BUSTINERA of the crime of Qualified Theft, committed as follows: That on or about the 25th day of December up to the 9th day of January, 1997, in Quezon City, Philippines, the said accused being then employed as one [of] the taxi Drivers of Elias S. Cipriano, an Operator of several taxi cabs with business address at corner 44 Commonwealth Avenue, iliman (sic), this City, and as such has free access to the taxi he being driven, did then and there willfully, unlawfully and feloniously with intent to gain, with grave abuse of confidence reposed upon him by his employer and without the knowledge and consent of the owner thereof, take, steal and carry away a Daewoo Racer GTE Taxi with Plate No. PWH-266 worthP303,000.00, Philippine Currency, belonging to Elias S. Cipriano, to the damage and prejudice of the said offended party in the amount of P303,000.00. CONTRARY TO LAW.
Upon arraignment[4] on March 27, 2000, appellant, assisted by counsel de oficio, entered a plea of not guilty. Thereafter, trial on the merits ensued. From the evidence for the prosecution, the following version is established. Sometime in 1996, Edwin Cipriano (Cipriano), who manages ESC Transport, the taxicab business of his father, hired appellant as a taxi driver and assigned him to drive a Daewoo Racer with plate number PWH-266. It was agreed that appellant would drive

the taxi from 6:00 a.m. to 11:00 p.m, after which he would return it to ESC Transports garage and remit the boundary fee in the amount of P780.00 per day.[5] On December 25, 1996, appellant admittedly reported for work and drove the taxi, but he did not return it on the same day as he was supposed to.
Q: Now, Mr. Witness, on December 25, 1996, did you report for work? A: Yes, sir. Q: Now, since you reported for work, what are your duties and responsibilities as taxi driver of the taxi company? A: That we have to bring back the taxi at night with the boundary. Q: How much is your boundary? A: P780.00, sir. Q: On December 25, 1996, did you bring out any taxi? A: Yes, sir. Q: Now, when ever (sic) you bring out a taxi, what procedure [do] you follow with that company? A: That we have to bring back the taxi to the company and before we leave we also sign something, sir. Q: What is that something you mentioned? A: On the record book and on the daily trip ticket, sir. Q: You said that you have to return your taxi at the end of the day, what is then the procedure reflect (sic) by your company when you return a taxi? A: To remit the boundary and to sign the record book and daily trip ticket. Q: So, when you return the taxi, you sign the record book? A: Yes, sir. Q: You mentioned that on December 25, 1996, you brought out a taxi? A: Yes, sir. Q: What kind of taxi? A: Daewoo taxi, sir. Q: Now did you return the taxi on December 25, 1996? A: I was not able to bring back the taxi because I was short of my boundary, sir.[6]

The following day, December 26, 1996, Cipriano went to appellants house to ascertain why the taxi was not returned. [7] Arriving at appellants house, he did not find the taxi there, appellants wife telling him that her husband had not yet arrived. [8] Leaving nothing to chance, Cipriano went to the Commonwealth Avenue police station and reported that his taxi was missing.[9]

On January 9, 1997, appellants wife went to the garage of ESC Transport and revealed that the taxi had been abandoned in Regalado Street, Lagro, Quezon City.[10] Cipriano lost no time in repairing to Regalado Street where he recovered the taxi.[11] Upon the other hand, while appellant does not deny that he did not return the taxi on December 25, 1996 as he was short of the boundary fee, he claims that he did not abandon the taxi but actually returned it on January 5, 1997;[12] and that on December 27, 1996, he gave the amount of P2,000.00[13] to his wife whom he instructed to remit the same to Cipriano as payment of the boundary fee [14] and to tell the latter that he could not return the taxi as he still had a balance thereof.[15] Appellant, however, admits that his wife informed him that when she went to the garage to remit the boundary fee on the very same day (December 27, 1996),[16] Cipriano was already demanding the return of the taxi. [17] Appellant maintains though that he returned the taxi on January 5, 1997 and signed the record book,[18] which was company procedure, to show that he indeed returned it and gave his employer P2,500.00[19] as partial payment for the boundary fee covering the period from December 25, 1996 to January 5, 1997. Continuing, appellant claims that as he still had a balance in the boundary fee, he left his drivers license with Cipriano;[20] that as he could not drive, which was the only work he had ever known, without his drivers license, and with the obligation to pay the balance of the boundary fee still lingering, his wife started working on February 18, 1997 as a stay-in maid for Cipriano, with a monthly salary of P1,300.00,[21] until March 26, 1997 when Cipriano told her that she had worked off the balance of his obligation; [22] and that with his obligation extinguished, his drivers license was returned to him. [23] Brushing aside appellants claim that he returned the taxi on January 5, 1997 and that he had in fact paid the total amount of P4,500.00, the trial court found him guilty beyond reasonable doubt of qualified theft by Decision of May 17, 2001, the dispositive portion of which is quotedverbatim:

WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt as charged, and he is accordingly sentenced to suffer the penalty ofReclusion Perpetua and to pay the costs. In the service of his sentence, accused is ordered credited with four-fifths (4/5) of the preventive imprisonment undergone by him there being no showing that he agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners. SO ORDERED.
[24]

(Emphasis and italics in the original)

Hence, the present appeal anchored on the following assigned errors:

I.

THE COURT A QUO GRAVELY ERRED IN CONCLUDING WITHOUT CONCRETE BASIS THAT THE ACCUSED-APPELLANT HAS INTENT TO GAIN WHEN HE FAILED TO RETURN THE TAXI TO ITS GARAGE.
II.

THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT.
[25]

It is settled that an appeal in a criminal proceeding throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment even if they have not been specifically assigned.[26] Appellant was convicted of qualified theft under Article 310 of the Revised Penal Code, as amended for the unlawful taking of a motor vehicle. However, Article 310 has been modified, with respect to certain vehicles,[27] by Republic Act No. 6539, as amended, otherwise known as "AN ACT PREVENTING AND PENALIZING CARNAPPING. When statutes are in pari materia[28] or when they relate to the same person or thing, or to the same class of persons or things, or cover the same specific or particular subject matter,[29] or have the same purpose or object,[30] the rule dictates that they should be construed together interpretare et concordare leges legibus, est optimus interpretandi modus.[31] Every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence, [32] as this Court explained in City of Naga v. Agna,[33] viz:

. . . When statutes are in pari materia, the rule of statutory construction dictates that they should be construed together. This is because enactments of the same legislature on the same subject matter are supposed to form part of one uniform system; that later statutes are supplementary or complimentary to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislation on the same subject and to have enacted its new act with reference thereto. Having thus in mind the previous statutes relating to the same subject matter, whenever the legislature enacts a new law, it is deemed to have enacted the new provision in accordance with the legislative policy embodied in those prior statutes unless there is an express repeal of the old and they all should be construed together. In construing them the old statutes relating to the same subject matter should be compared with the new provisions and if possible by reasonable construction, both should be so construed that effect may be given to every provision of each. However, when the new provision and the old relating to the same subject cannot be reconciled the former shall prevail as it is the latter expression of the legislative will . . . (Emphasis and underscoring supplied; citations omitted)
[34]

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.[35] Theft is qualified when any of the following circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.[36] On the other hand, Section 2 of Republic Act No. 6539, as amended defines carnapping as the taking, with intent to g ain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. The elements of carnapping are thus: (1) the taking of a motor vehicle which belongs to another; (2) the taking is without the consent of the owner or by means of violence against or intimidation of persons or by using force upon things; and (3) the taking is done with intent to gain. [37] Carnapping is essentially the robbery or theft of a motorized vehicle, [38] the concept of unlawful taking in theft, robbery and carnapping being the same.[39] In the 2000 case of People v. Tan[40] where the accused took a Mitsubishi Gallant and in the later case of People v. Lobitania[41] which involved the taking of a Yamaha motorized tricycle, this Court held that the unlawful taking of motor vehicles is now covered by the anti-carnapping law and not by the provisions on qualified theft or robbery.

There is no arguing that the anti-carnapping law is a special law, different from the crime of robbery and theft included in the Revised Penal Code. It particularly addresses the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. But a careful comparison of this special law with the crimes of robbery and theft readily reveals their common features and characteristics, to wit: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latter's consent. However, the anticarnapping law particularly deals with the theft and robbery of motor vehicles. Hence a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owner's consent, whether the taking was done with or without the use of force upon things. Without the anti-carnapping law, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before the enactment of said statute. (Emphasis and underscoring supplied; citations omitted.)
[42]

It is to be noted, however, that while the anti-carnapping law penalizes the unlawful taking of motor vehicles, it excepts from its coverage certain vehicles such as roadrollers, trolleys, street-sweepers, sprinklers, lawn mowers, amphibian trucks and cranes if not used on public highways, vehicles which run only on rails and tracks, and tractors, trailers and tractor engines of all kinds and used exclusively for agricultural purposes. By implication, the theft or robbery of the foregoing vehicles would be covered by Article 310 of the Revised Penal Code, as amended and the provisions on robbery, respectively.[43] From the foregoing, since appellant is being accused of the unlawful taking of a Daewoo sedan, it is the anti-carnapping law and not the provisions of qualified theft which would apply as the said motor vehicle does not fall within the exceptions mentioned in the anti-carnapping law. The designation in the information of the offense committed by appellant as one for qualified theft notwithstanding, appellant may still be convicted of the crime of carnapping. For while it is necessary that the statutory designation be stated in the information, a mistake in the caption of an indictment in designating the correct name of the offense is not a fatal defect as it is not the designation that is controlling but the facts alleged in the information which determines the real nature of the crime. [44] In the case at bar, the information alleges that appellant, with intent to gain, took the taxi owned by Cipriano without the latters consent.[45]Thus, the indictment alleges every element of the crime of carnapping,[46] and the prosecution proved the same. Appellants appeal is thus bereft of merit. That appellant brought out the taxi on December 25, 1996 and did not return it on the same day as he was supposed to is admitted. [47] Unlawful taking, or apoderamiento, is the taking of the motor vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. [48] While the nature of appellants possession of the taxi was initially lawful as he was hired as a taxi driver and was entrusted possession thereof, his act of not returning it to its owner, which is contrary to company practice and against the owners consent transformed the character of the possession into an unlawful one. [49] Appellant himself admits that he was aware that his possession of the taxi was no longer with Cipr ianos consent as the latter was already demanding its return.
Q: Also you said that during your direct testimony that when you gave your wife the P2,500.00, you also told her to go to the company to ask the company for permission for you to use the taxi since you were then still short of the boundary. Alright, after telling that to your wife and after seeing your wife between December 27, 1996 and January 5, 1997, did you ask your wife what was the answer of the company to that request of yours? A: He did not allow me, sir, and he even [got] angry with me.

Q: So, when did you learn that the company was not agreeable to your making use of the taxicab without first returning it to the company? A: Before the new year, sir. Q: When you said new year, you were referring to January 1, 1997? A: Either December 29 or December 30, 1996, sir. Q: So, are you telling us that even if you knew already that the company was not agreeable to your making use of the taxicab continually (sic) without returning the same to the company, you still went ahead and make (sic) use of it and returned it only on January 5, 1997 . A: Yes, sir.[50] (Emphasis and underscoring supplied)

Appellant assails the trial courts conclusion that there was intent to gain with the mere taking of the taxi without the owners consent. He maintains that his reason for failing to return the taxi was his inability to remit the boundary fee, his earnings that day not having permitted it; and that there was no intent to gain since the taking of the taxi was not permanent in character, he having returned it. Appellants position does not persuade. Intent to gain or animus lucrandi is an internal act, presumed from the unlawful taking of the motor vehicle.[51] Actual gain is irrelevant as the important consideration is the intent to gain.[52] The term gain is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed.[53] Thus, the mere use of the thing which was taken without the owners consent constitutes gain.[54] In Villacorta v. Insurance Commission[55] which was reiterated in Association of Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co, Inc.,[56] Justice Claudio Teehankee (later Chief Justice), interpreting the theft clause of an insurance policy, explained that, when one takes the motor vehicle of another without the latters consent even if the motor vehicle is later returned , there is theft, there being intent to gain as the use of the thing unlawfully taken constitutes gain:

Assuming, despite the totally inadequate evidence, that the taking was temporary and for a joy ride, the Court sustains as the better view that which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure. Justice Ramon C. Aquino cites in his work Groizard who holds that the use of a thing constitutes gain and Cuello Calon who calls it hurt de uso. (Emphasis and underscoring supplied; citation omitted)
[57] [58]

Besides, the trial court did not believe appellants claim that he in fact returned the taxi on January 5, 1997.

The Court can not (sic) believe accuseds assertion that he returned the subject vehicle on January 5, 1997 to the garage and that he had in fact paid the amount ofP4,500.00 in partial payment of his unremitted boundary for ten (10) days. He could not even be certain of the exact amount he allegedly paid the taxicab owner. On directexamination, he claimed that he paid Edwin Cipriano on December 27, 1996 the amount of P2,000.00 and it was his wife who handed said amount to Cipriano, yet on cross-examination, he claimed that he gave P2,500.00 to his wife on that date for payment to the taxicab owner.
[59]

The rule is well-entrenched that findings of fact of the trial court are accorded the highest degree of respect and will not be disturbed on appeal absent any clear showing that the trial court had overlooked, misunderstood or misapplied some facts or circumstances of weight and significance which, if considered, would alter the result of the case.[60] The reason for the rule being that trial courts have the distinct advantage of having heard the witnesses themselves and observed their deportment and manner of testifying or their conduct and behavior during the trial. [61] Other than his bare and self-serving allegations, appellant has not shown any scintilla of evidence that he indeed returned the taxi on January 5, 1997.
Q: You said that you returned the taxi on January 5, 1997, correct? A: Yes, sir. Q: Now, Mr. Witness, did you sign any record when you returned the taxi? A: Yes, sir. Q: Do you have any copy of that record? A: They were the one (sic) in-charge of the record book and I even voluntarily left my drivers license with them, sir. Q: You said that you did not return the taxi because you were short of ( sic) boundary, did you turn over any money to your employer when you returned the taxi? A: I gave them [an] additional P2,500.00, sir.

Q: At the time when you returned the taxi, how much was your short indebtedness (sic) or short boundary (sic)? A: I was short for ten (10) days, and I was able to pay P4,500.00.

Q: Do you have any receipt to show receipt of payment for this P4,500.00? A: They were the ones having the record of my payment, and our agreement was that I have to pay the balance in installment.[62](Emphasis supplied)

While appellant maintains that he signed on January 5, 1997 the record book indicating that he returned the taxi on the said date and paid Cipriano the amount

of P4,500.00 as partial payment for the boundary fee, appellant did not produce the documentary evidence alluded to, to substantiate his claim. That such alleged record book is in the possession of Cipriano did not prevent him from producing it as appellant has the right to have compulsory process issued to secure the production of evidence on his behalf.[63] The trial court having convicted appellant of qualified theft instead of carnapping, it erred in the imposition of the penalty. While the information alleges that the crime was attended with grave abuse of confidence, the same cannot be appreciated as the suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of said Code, cannot be invoked when there is a legal impossibility of application, either by express provision or by necessary implication.[64] Moreover, when the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules, for the application of penalties under the said Code or by other relevant statutory provisions are based on or applicable only to said rules for felonies under the Code.[65] Thus, in People v. Panida[66] which involved the crime of carnapping and the penalty imposed was the indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum, this Court did not apply the provisions of the Revised Penal Code suppletorily as the anti-carnapping law provides for its own penalties which are distinct and without reference to the said Code.

The charge being simple carnapping, the imposable penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months. There can be no suppletory effect of the rules for the application of penalties under the Revised Penal Code or by other relevant statutory provisions based on, or applicable only to, the rules for felonies under the Code. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. For this reason, we hold that the proper penalty to be imposed on each of accused-appellants is an indeterminate sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum. (Emphasis and underscoring supplied; citations omitted)
[67]

Appellant being then culpable for carnapping under the first clause of Section 14 of Republic Act No. 6539, as amended, the imposable penalty is imprisonment for not less than 14 years and 8 months, not more than 17 years and 4 months, [68] for, as discussed above, the provisions of the Revised Penal Code cannot be applied suppletorily and,

therefore, the alleged aggravating circumstance of grave abuse of confidence cannot be appreciated. Applying Section 1 of Act No. 4103, [69] as amended, otherwise known as the Indeterminate Sentence Law, if the offense is punishable by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum term shall not be less than the minimum prescribed by the same the penalty imposed being a range.[70] WHEREFORE, the judgment of the Regional Trial Court of Quezon City, Branch 217, in Crim Case No. Q-97-71956, finding appellantLuisito D. Bustinera guilty beyond reasonable doubt of qualified theft, is REVERSED and SET ASIDE, and another judgment entered in its place, finding him guilty beyond reasonable doubt of the crime of carnapping under Republic Act No. 6539, as amended and sentencing him to an indeterminate penalty of Fourteen (14) Years and Eight (8) Months, as minimum, to Seventeen (17) Years and Four (4) Months, as maximum. SO ORDERED. Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.

[1]

Records at 90-94. 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 article, 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 a plantation, 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. (Emphasis and underscoring supplied) Records at 1-2. Id. at 36. Transcript of Stenographic Notes (TSN), July 10, 2000 at 8. TSN, October 9, 2000 at 5-8. TSN, July 10, 2000 at 14. Id. at 9. Ibid. Id. at 9-10. Id. at 10. TSN, October 9, 2000 at 8. Ibid. On cross-examination however, appellant later claimed that the amount he gave was P2,500.00.

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

TSN, October 9, 2000 at 18. Id. at 8. Id. at 21. Id. at 20. Id. at 9. Ibid. Id. at 26. Id. at 29. Id. at 30. Ibid. Records at 93. Rollo at 40. People v. Salvador, 398 SCRA 394, 412 (2003); People v. Napalit, (2003); People v. Galigao, 395 SCRA 195, 204 (2003). 396 SCRA 687, 699

[15]

[16]

[17]

[18]

[19]

[20]

[21]

[22]

[23]

[24]

[25]

[26]

[27]

Section 2 of Republic Act No. 6539 as amended defines motor vehicle as follows:

Motor vehicle is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracts, and tractors, trailers and reaction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating. (Emphasis and underscoring supplied)
[28]

Statutes which are in pari materia may be independent or amendatory in form; they may be complete enactments dealing with a single, limited subject matter or sections of a code or revision; or they may be a combination of these. [2B N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION 140 (5th ed., 1992)] Natividad v. Felix, 229 SCRA 680, 687 (1994). Philippine Global Communications, Inc. v. Relova, 145 SCRA 385, 394 (1986); City of Naga v. Agna, 71 SCRA 176, 184 (1976). Blacks Law Dictionary (6 ed., 1990) translates the maxim as to interpret, and [in such a way as] to harmonize laws with laws, is the best mode of interpretation. Loyola Grand Villas Homeowners (South) Association, Inc. v. Court of Appeals, 276 SCRA 681, 696 (1997); Natividad v. Felix, supra; Corona v. Court of Appeals, 214 SCRA 378, 392 (1992). 71 SCRA 176 (1976). Id. at 184. People v. Sison, 322 SCRA 345, 363-364 (2000). Id. at 364. People v. Napalit, supra at 700; People v. Calabroso, 340 SCRA 332, 342 (2000). People v. Lobitania, 388 SCRA 417, 432 (2002).
th

[29]

[30]

[31]

[32]

[33]

[34]

[35]

[36]

[37]

[38]

[39]

People v. Fernandez, G.R. No. 132788, October 23, 2003; People v. Sia, 370 SCRA 123, 134 (2001); People v. Santos, 333 SCRA 319, 334 (2000). 323 SCRA 30 (2000). 388 SCRA 417 (2002). People v. Lobitania, 388 SCRA 417, 432 (2002); People v. Tan, 323 SCRA 30, 39 (2000). Vide Izon v. People, 107 SCRA 118, 123 (1981) where this Court said the following:

[40]

[41]

[42]

[43]

From the definition cited by the Government which petitioners admit as authoritative, highways are always public, free for the use of every person. There is nothing in the law that requires a license to use a public highway to make the vehicle a "motor vehicle" within the definition given the anticarnapping law. If a vehicle uses the streets with or without the required license, same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of streets or highway the same is used; but by the very nature of the vehicle itself and the use to which it is devoted. Otherwise, cars using the streets but still unlicensed or unregistered as when they have just been bought from the company, or only on test runs, may be stolen without the penal sanction of the anti-carnapping statute, but only as simple robbery punishable under the provision of the Revised Penal Code. This obviously, could not have been the intention of the anti-carnapping law. Going over the enumerations of excepted vehicle, it would readily be noted that any vehicle which is motorized using the streets which are public, not exclusively for private use, comes within the concept of motor vehicle. A tricycle which is not included in the exception, is thus deemed to be that kind of motor vehicle as defined in the law the stealing of which comes within its penal sanction. (Emphasis and underscoring supplied)
[44]

People v. Bali-balita, 340 SCRA 450, 469 (2000); People v. Banihit, 339 SCRA 86, 94 (2000); People v. Elamparo, 329 SCRA 404, 416 (2000); People v. Diaz, 320 SCRA 168, 175 (1999). Records at 1-2. It should be noted that appellant cannot be charged with estafa as it was not alleged in the information that he had juridical possession of the motor vehicle. In Santosv. People, 181 SCRA 487, 492 (1990), this Court distinguished between theft and estafa to wit:

[45]

[46]

Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino in his book on the Revised Penal Code, The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa. (Emphasis and underscoring supplied; citation omitted) Moreover, in People v. Isaac, 96 Phil. 931 (1955), this Court convicted a jeepney driver of theft and not estafa when he did not return the jeepney to its owner since the motor vehicle was in the juridical possession of its owner, although physically held by the driver. The Court reasoned that the accused was not a lessee or hirer of the jeepney because the Public Service Law and its regulations prohibit a motor vehicle operator from entering into any kind of contract with any person if by the terms thereof it allows the use and operation of all or any of his equipment under a fixed rental basis. The contract with the accused being under the boundary system, legally, the accused was not a lessee but only an employee of the owner. Thus, the accuseds possession of the vehicle was only an extension of the owners.
[47]

TSN, October 9, 2000 at 5-8. People v. Ellasos, 358 SCRA 516, 527 (2001).

[48]

[49]

Vide People v. Isaac, supra, where this Court convicted Isaac, who was hired as a temporary driver of a public service vehicle a jeepney of the crime of theft when he did not return the same. TSN, October 9, 2000 at 22-23. People v. Ellasos, supra; People v. Gulinao, 179 SCRA 774, 780 (1989). Venturina v. Sandiganbayan, 193 SCRA 40, 46 (1991); People v. Seranilla, 161 SCRA 193, 207 (1988). 3 R. AQUINO & C. GRINO-AQUINO, THE REVISED PENAL CODE 206 (1997). Association of Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co, Inc., 124 SCRA 618, 620-621 (1983); Villacarta v. Insurance Commission, 100 SCRA 467, 474-475 (1980). 100 SCRA 467 (1980). 124 SCRA 618, 620-621 (1983). According to Justice Florenz Regalado [F. REGALADO, CRIMINAL LAW CONSPECTUS 543-544 (2003)], historically, opinion as to whether or not the unlawful taking of the personal property belonging to another must be coupled with the intent of the offender to permanently deprive the owner of the said property has been divided:

[50]

[51]

[52]

[53]

[54]

[55]

[56]

[57]

In one robbery case, it was held that there must be permanency in the taking, or in the intent for the asportation, of the stolen property (People v. Kho Choc, CA, 50 O.G. 1667). In several theft cases, there were divided opinions, one line of cases holding that the intent of the taking was to permanently deprive the owner thereof (People v. Galang,CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103, cf. People v. Roxas, CA-G.R. No. 14953, Oct. 31, 1956). The contrary group of cases argued that there was no need for permanency in the taking or in its intent, as the mere disturbance of the proprietary rights of the owner was already apoderamiento(People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417). The second line of cases holding that there need be no intent to permanently deprive the owner of his property was later adopted by the Supreme Court, in construing the theft clause in an insurance policy, and ruling that there was criminal liability for theft even if the car was taken out only for a joyride but without the owners knowledge or consent. (Villacorta v. Insurance Comm., et al., G.R. No. 54171, Oct. 28, 1980; Assn of Baptists for World Evangelism v. Fieldmens Ins. Co, Inc., G.R. No. L-28772, Sept. 21, 1983). (Emphasis supplied)
[58]

Villacorta v. Insurance Commission, supra. Records at 93. People v. Muros, G.R. No. 142511, February 16, 2004. Ibid. TSN, October 9, 2000 at 9-10. RULES OF COURT, Rule 115, sec. 1, par. (g); Vide People v. Woolcock, 244 SCRA 235, 255-256 (1995), where this Court said the following:

[59]

[60]

[61]

[62]

[63]

Just like appellant Williams, she sought to buttress her aforesaid contention by lamenting the alleged failure of the State to present in the trial court her baggage declaration and the confiscation receipt involving these pieces of her baggage. In the first place, it was not the duty of the prosecution to present these alleged documents on which she relies for her defense. And, just as in the case of appellant Williams, it is a source of puzzlement why she never sought to compel either the prosecutors to produce the aforesaid documents which were allegedly in the possession of the latter or the customs office where such declarations are on

file. Contrary to her argument hereon, since such pieces of evidence were equally available to both parties if sought by subpoena duces tecum, no presumption of suppression of evidence can be drawn, and these considerations likewise apply to the thesis of appellant Williams. (Emphasis and underscoring supplied; citation omitted)
[64]

People v. Simon, 234 SCRA 555, 574 (1994). Id. at 576. 310 SCRA 66 (1999). Id. at 99-100. It should be noted, however, that the passage of Republic Act No. 7659, otherwise known as AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL CODE, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES, introduced three amendments to the anti-carnapping law: (1) the change of the penalty of life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the phrase in the commission of the carnapping to in the course of the commission of the carnapping or on the occasion thereof. [People v. Latayada, G.R. No. 146865, February 18, 2004; People v. Santos, supra at 333; People v. Paramil, 329 SCRA 456, 464 (2000); People v. Mejia, 275 SCRA 127, 153 (1997)] With the amendment of the penalty to life imprisonment to reclusion perpetua, the provisions of the Revised Penal Code can be suppletorily applied in qualified carnapping or carnapping in an aggravated form as defined in Section 14 of Republic Act No. 6539, as amended by Section 20 of Republic Act No. 7659 whenever the owner, driver or occupant of the carnapped vehicle is killed in the course of the commission of the carnapping or on the occasion thereof. In People v. Simon [234 SCRA 555, 574 (1994)], this Court said that when an offense is defined and punished under a special law but its penalty is taken from the Revised Penal Code, then the provisions of the said Code would apply suppletorily. In the case at bar however, appellant is not being charged with qualified or aggravated carnapping, but only carnapping under the first clause of the anti-carnapping law. Since the imposable penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, the provisions of the Revised Penal Code cannot be applied suppletorily. SEC. 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things, and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. (Emphasis and underscoring supplied) SECTION 1. Hereinafter, in imposing a prison sentence for an offense punishable by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis and underscoring supplied). People v. Panida, 310 SCRA 66, 99 (1999).

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[70]

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 77429 January 29, 1990 LAURO SANTOS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Puruganan, Chato, Chato & Tan for petitioner,

CRUZ, J.: The factual findings of the lower courts are as a matter of policy not disturbed by this Court in the absence of any of the recognized exceptions that will justify reversal. As none of these exceptions appears in the case at bar, the petitioner's conviction, based on such findings, must be affirmed. The evidence of the prosecution is, in the view of the Court, conclusive of the petitioner's guilt. Sometime in November 1980, the complaining witness, Encarnacion Pealosa, entrusted her car, a 1976 Ford Escort, to herein petitioner Lauro Santos for repair of the carburetor. The work was to cost P300.00. A week later, Santos persuaded her to have her car repainted by him for P6,500.00, within a period of two months. 1 After two months, Pealosa went to the petitioner's repair shop at MacArthur Highway, Malabon, to retrieve her car. Santos refused to deliver the vehicle unless she paid him P634.60 for the repairs. As she did not have the money then, she left the shop to get the needed payment. Upon her return, she could not find Santos although she waited five hours for him. She went back to the shop several times thereafter but to no avail. 2 Pealosa was to learn later that Santos had abandoned his shop in Malabon. Unable to recover her car, she filed a complaint for carnapping against Santos with the Constabulary Highway Patrol Group in Camp Crame. The case was dismissed when the petitioner convinced the military authorities that the complainant had sold the vehicle to him. He submitted for this purpose a Deed of Sale with Right of Repurchase in his favor. 3 This notwithstanding, an information for estafa on Pealosa's complaint was filed against Santos in the Regional Trial Court of Quezon City on October 26,1982. After trial, the accused was found guilty as charged and sentenced to "an indeterminate penalty of from four (4) months and one (1) day as minimum to four (4) years and two (2) months as maximum, both of prision correccional, to indemnify the offended party in the amount of P38,000.00 which is the value of the car without subsidiary imprisonment in case of insolvency and with costs." 4 On appeal, the conviction was affirmed but Santos was held guilty of qualified theft and not estafa. The dispositive portion of the decision of the respondent court 5 read:

WHEREFORE, the judgment appealed from is MODIFIED: the offense committed by the appellant is qualified theft and he is hereby sentenced to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion temporal, as maximum; to indemnify Encarnacion Pealosa the sum of P20,000.00 without subsidiary imprisonment in case of insolvency; and, to pay the costs. In his defense, the petitioner now quibbles about the supposed inconsistences of the complaining witness that he says make her testimony questionable. Our ruling is that such inconsistencies are minor lapses and do not impair Pealosa's credibility as a whole. Santos also wonders why, if it is true that she had asked him to repair and repaint her car, she had not even made an advance payment. One reason could be that he himself did not ask for such advance, considering that they were members of the same bowling team. There is even the suggestion that he was smitten with her although she says she rejected his suit. 6 The petitioner's main reliance, though, is on the Deed of Sale with Right of Repurchase which he submitted at the trial to prove that Pealosa had sold the car to him and now had no claim to it. The lower courts were correct in rejecting this shoddy evidence. It is a wonder that it was even considered at all when the case filed in Camp Crame was dismissed. A cursory look at this alleged document will show that it is spurious. There are alterations and deletions that are not even initialed to authenticate the changes. Two entire paragraphs are cancelled. The name and address of the supposed original vendee are crossed out and those of the petitioner are written in place of the deletions. Moreover, the so-called deed is not notarized. It would have been so easy to re-type the one-page document to express clearly and indubitably the intent of the parties and then have it properly acknowledged. But this was not done. The petitioner insists that the document was originally intended to be concluded between Pealosa and Domingo Corsiga but was hastily changed to make Santos the buyer and mortgagee. 7 Surely a vendee would not be so rash as to depend for his title to the thing purchased on such a shabby and dubious deed of sale. The petitioner also makes much of the fact that Pealosa did not even sign a job order or get a receipt when she delivered her car to him for repairs. In fact, she did not even check where his repair shop was. He forgets that he was no less trusting either. He himself does not explain why the amount of P6,000.00 he allegedly gave for the car was not acknowledged by Pealosa in the Deed of Sale or in a separate instrument. There was no proof at all of such payment. Given these circumstances, we find it easier to believe that Pealosa had signed the original document with the intention of selling her car to Domingo Corsiga, the party first named therein, but later changed her mind. She left the unused document in her car and Santos, chancing upon it when the vehicle was delivered to him, decided to modify it to suit his purposes. Besides, as the respondent court correctly observed, why would Santos still demand from Pealosa the cost of the repairs on the car if he claims he had already bought it from her? And there is also the glaring fact that Santos was unable to register the car in his name despite the lapse of all of two years after his alleged purchase of the vehicle. In his supplemental memorandum, the petitioner says he could not register the car because it had merely been mortgaged to him and he had to wait until the expiration of the period of repurchase. 8 Yet, during his cross-examination on March 5, 1984, Santos repeatedly declared that

the car belonged to him and that the right of repurchase expired after two months from November or December 1980. He also said that rather than register it, he could cannibalize the car and sell the spare parts separately at greater profit. 9 The Court also notes that, according to Santos, he accompanied Pealosa to redeem her car from Corsiga and that he himself gave her the money for such redemption in Corsiga's presence. 10 Having made that allegation, it was for the petitioner himself to present Corsiga as his witness to corroborate that statement. Santos did not, and so failed to prove what was, to begin with, an improbable defense. Ei incumbit probatio ui dicit. Although the information charged the petitioner with estafa, the crime committed was theft. It is settled that what controls is not the designation of the offense but the description thereof as alleged in the information. 11 And as described therein, the offense imputed to Santos contains all the essential elements of theft, to wit: (1) that there be a taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence or intimidation against persons or force upon things. 12 Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino in his book on the Revised Penal Code, "The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de factopossession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa." 13 The petitioner argues that there was no intent to gain at the time of the taking of the vehicle and so no crime was committed. In U.S. v. De Vera, 14 we held that the subsequent appropriation by the accused of the thing earlier delivered to him supplied the third element that made the crime theft instead of estafa. Illustrating, the Court declared: ... let us suppose that A, a farmer in the Province of Bulacan, agrees to sell B a certain quantity of rice at a certain price per picul. A ships several sacks of the grain which B receives in his warehouse. If, prior to the measuring required before the payment of the agreed price, B takes a certain quantity of rice from the different sacks, there can be no doubt that he is guilty of the crime of theft. Now, it may be asked: Did not B receive the sacks of rice shipped to him by A?-Yes. And did A voluntarily deliver the sacks of rice which he owned by shipping them to B?-Yes Was the taking of the rice by B from the different sacks done with A's consent?- No. This shows, to our mind, that the theory of the defense is untenable, according to which, when the thing is received and then appropriated or converted to one's own use without the consent of the owner, the crime committed is not that of theft. It was erroneous for the respondent court to hold the petitioner guilty of qualified theft because the fact that the object of the crime was a car was not alleged in the information as a qualifying circumstance. 15 Santos would have had reason to argue that he had not been properly informed of the nature and cause of the accusation against him, as qualified theft carries a higher penalty.

But although not pleaded and so not considered qualifying, the same circumstance may be considered aggravating, having been proved at the trial. 16 Hence the imposable penalty for the theft, there being no other modifying circumstances, should be in the maximum degree. According to the Solicitor General: The value of the car is P38,000.00. Under Article 309 of the Revised Penal Code, if the value of the thing stolen exceeds P22,000.00, the penalty should be the maximum period of the prescribed penalty plus one year for each additional P10,000.00. Thus the imposable penalty is the maximum of prision mayor with a range of TEN (10) YEARS and ONE (1) DAY to TWELVE (12) YEARS plus an additional ONE (1) YEAR for every P10,000.00 in excess of P22,000.00, raising the maximum penalty into Reclusion Temporal in the minimum period. Applying the Indeterminate Sentence Law, there being one aggravating and no mitigating circumstance the imposable penalty recommended is from SIX (6) YEARS and ONE (1) DAY of prision mayor to THIRTEEN (13) YEARS of reclusion temporal. We approve the above observations and sentence the petitioner accordingly, WHEREFORE, the appealed decision is AFFIRMED as herein modified. The petitioner is declared guilty of theft and sentenced to from six (6) years and one (1) day of prision mayor to thirteen (13) years of reclusion temporal. He is also ordered to restore the car in question to the private respondent, or if this is no longer possible, to pay her the value thereof in the amount of P38,000.00, SO ORDERED. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes 1 TSN, September 7,1983, pp. 4 & 10. 2 Ibid., pp. 5-6. 3 Exhibit "1". 4 Decision dated January 22, 1985 penned by Judge Filemon H. Mendoza. 5 Penned by Justice Felipe B. Kalalo, with Justices Floreliana Castro-Bartolome and Esteban M. Lising, concurring. 6 TSN, September 7, 1983, pp. 8-9. 7 TSN, March 5, 1984, p. 3. 8 Rollo, p. 135.

9 TSN, March 5, 1984, pp. 19-20, 22-23. 10 Ibid., p. 2. 11 U.S. v. Treyes, 14 Phil. 270; U.S. v. Lim San, 17 Phil. 273; U.S. v. Ondaro, 39 Phil. 70; People v. Otiveria, 67 Phil. 427; People v. Arnault, 92 Phil. 252. 12 U.S. V. De Vera, 43 Phil. 1000. 13 Volume III, 1988 Edition, p. 194. 14 Supra. 15 U.S. vs. Campo, 23 Phil. 368; People v. Collado, 60 Phil. 610; People v. Domondon, 60 Phil. 729; People vs. Raquinio, 17 SCRA 914; People v. Bautista , 28 SCRA 184; People v. Jovellano, 56 SCRA 156. 16 Ibid.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 109595

April 27, 2000

CRISTETA CHUA-BURCE, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.

QUISUMBING, J.: Subject of the present appeal by certiorari is the decision dated November 27, 1992 of the Court of Appeals in CA-G.R. CR No. 12037, (a) affirming in toto the trial court's decision finding petitioner guilty of estafa and (b) denying her Motion for Reconsideration in a Resolution dated March 25, 1993. The Regional Trial Court, Calapan, Oriental Mindoro, Branch 40, rendered a joint decision finding petitioner guilty of estafa under Article 315, par. 1 (b) of the Revised Penal Code, in Criminal Case No. C-2313, and likewise found petitioner liable for the amount of P150,000.00 in Civil Case No. R-3733. Only the criminal case is before us for review. The uncontroverted facts, as found by the Court of Appeals, are as follows: On August 16, 1985, Ramon Rocamora, the Manager (of Metropolitan Bank and Trust Company, Calapan Branch, Oriental Mindoro) requested Fructuoso Peaflor, Assistant Cashier, to conduct a physical bundle count of the cash inside the vault, which should total P4,000,000.00, more or less. During this initial cash count, they discovered a shortage of fifteen bundles of One Hundred Pesos denominated bills totalling P150,000.00. The One Hundred Peso bills actually counted was P3,850,000.00 as against the balance of P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or a total shortage of P150,000.00. The next day, to determine if there was actually a shortage, a reverification of the records and documents of the transactions in the bank was conducted. There was still a shortage of P150,000.00. The bank initiated investigations totalling four (4) in all. The first was by Ramon Rocamora, the Manager. The second was by the bank's internal auditors headed by Antonio Batungbakal. Then, the bank's Department of Internal Affairs conducted an independent investigation. Thereafter, the National Bureau of Investigation (NBI) came in to investigate. All of these investigations concluded that there was a shortage of P150,000.00, and the person primarily responsible was the bank's Cash Custodian, Cristeta Chua-Burce, the herein accused. On November 4, 1985, unable to satisfactorily explain the shortage of P150,000.00, the accused's service with the bank was terminated. To recover the missing amount, Metropolitan Bank and Trust Company (Metrobank) filed a Civil Case for Sum of Money and Damages with Preliminary Attachment and Garnishment docketed as Civil Case No. R-3733 against petitioner and her husband, Antonio Burce. Prior to the filing of the Answer, the following Information for Estafa was filed against petitioner: That on or about the 16th day of August 1985, and for a period prior and subsequent thereto, the above-named accused, with unfaithfulness or abuse of confidence, and with intent to defraud, did then and there wilfully, unlawfully, and feloniously, in her capacity as Cash Custodian of the Metrobank, Calapan Branch, take from the Bank's Vault the amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, which is under her direct custody and/or accountability, misappropriate and convert to her own personal use and benefit, without the knowledge and consent of the offended party, despite repeated demands for her to account and/or return the said amount, she refused and failed, and still fails and refuses to the damage and prejudice of the Metrobank, Calapan Branch, in the aforementioned amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS.

Contrary to Article 315 of the Revised Penal Code. Calapan, Oriental Mindoro, November 27, 1985. 1 Both civil and criminal cases were raffled to the same branch of the Regional Trial Court of Calapan, Oriental Mindoro, Branch 40. Thereafter, petitioner moved for the suspension of the criminal case on the ground of the existence of a prejudicial question, viz., that the resolution of the civil case was determinative of her guilt or innocence in the criminal case. 2The trial court, over the vehement opposition of the private and public prosecutors, granted the motion and suspended the trial of the criminal case. 3 On petition for certiorari to the Court of Appeals, the appellate court ruled that there was no prejudicial question. 4 Petitioner was arraigned and assisted by counsel de parte, entered a plea of not guilty. 5 While the trial of the criminal case was suspended, the trial of the civil case continued. At the time of arraignment, the civil case was already submitted for decision. Hence, during the pre-trial conference of the criminal case, the parties agreed to adopt their respective evidence in the civil case as their respective evidence in the criminal case. 6 The trial court ordered the parties to submit their written agreement pursuant to Section 4 of Rule 118 of the Rules of Court. 7Thereafter, petitioner, duly assisted by her counsel, with the conforme of the public prosecutor, entered into the following pre-trial agreement: 8 COMES NOW, the accused, assisted by counsel, and unto this Honorable Court most respectfully submits this Pre-Trial agreement: 1. That the evidence already adduced by the plaintiff in Civil Case No. R-3733 will be adopted by the prosecution as its evidence in Criminal Case No. C-2313; 2. That the evidence to be adduced by the defendant in Civil Case No. R-3733 will also be adopted as evidence for the defense in Criminal Case No. C-2313. WHEREFORE, premises considered, it is prayed that the foregoing pre-trial agreement be admitted in compliance with the Order of this Court dated April 19, 1988. RESPECTFULLY SUBMITTED. Calapan, Oriental Mindoro, August 20, 1990. CRISTETTA CHUA-BURCE (sgd.) Accused Assisted By: RODRIGO C. DIMAYACYAC (sgd.) Defense Counsel San Vicente, Calapan

Oriental Mindoro IBP O.R. No. 292575 May 11, 1990 Quezon City With Conformity: EMMANUEL S. PANALIGAN (sgd.) Prosecuting Fiscal

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

In a decision dated November 27, 1992, 12 the Court of Appeals affirmed the trial court's decision in toto. Petitioner's Motion for Reconsideration was likewise denied. 13 Hence, the recourse to this Court. Petitioner raises the following issues: 14 1. IS THE RESULT OF POLYGRAPH EXAMINATION ADMISSIBLE IN EVIDENCE? 2. CAN THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT ADMIT IN EVIDENCE THE EVIDENCE WHICH WAS ALREADY DENIED ADMISSION IN THE ORDER OF THE FORMER JUDGE OF THE SAME COURT? 3. DOES PRIMA FACIE PRESUMPTION OF MISAPPROPRIATION OR CONVERSION EXISTS (sic) AGAINST THE PETITIONER WHEN THERE WERE OTHER PERSONS WHO HAD DIRECT AND GREATER ACCESS IN THE CASH-IN-VAULT? 4. IS RULE 111 SECTION 2 (a) OF THE REVISED RULES ON CRIMINAL PROCEDURE APPLICABLE IN (sic) THE CASE AT BAR? 5. WAS THERE A VALID PROCEEDING WHEN THE FISCAL WAS NOT ACTUALLY PRESENT AND DID NOT CONTROL AND SUPERVISE THE PROSECUTION OF THE CASE? In gist, (1) petitioner contends that the trial court erred in taking into account the results of the polygraph examination as circumstantial evidence of guilt considering the inherent unreliability of such tests, and the fact that the previous trial judge who handled the case already ruled such evidence as inadmissible; (2) petitioner insists that there can be no presumption of misappropriation when there were other persons who had access to the cash in vault; and (3) petitioner questions the validity of the trial of criminal case considering that the pre-trial agreement dispensed with the intervention of the public prosecutor in a full-blown trial of the criminal case. The Office of the Solicitor General, for the State, contends that the guilt of petitioner has been proven beyond reasonable doubt by the following facts which were duly established during trial first, petitioner was the cash custodian who was directly responsible and accountable for the cashin-vault. Second, the other persons who had access to the vault facilities never used the duplicate keys to open the safety deposit boxes and the cash safe from where the P100.00 bill denominations were located. In fact, the duplicate keys were offered in evidence still in their sealed envelopes. Third, alterations and superimposition on the cash-in-vault summary sheet were made by petitioner to cover the cash shortage. Lastly, there was a valid joint trial of the civil and criminal cases. The crucial issues, in our mind, are (1) whether there was a valid trial of the criminal case, and (2) whether the elements of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code were duly proven beyond reasonable doubt. First, petitioner assails the validity of the proceedings in the trial court on the ground that the public prosecutor did not intervene and present any evidence during the trial of the criminal case. The records clearly show that the pre-trial agreement was prepared by petitioner with the conforme of the public prosecutor. Thereafter, petitioner filed aconsolidated memorandum for both civil and criminal cases. Section 5 of Rule 110 15 requires that all criminal actions shall be prosecuted under the direction and control of the public prosecutor. The rationale behind the rule is "to prevent malicious or unfounded prosecutions by private persons." 16 The records show that the public prosecutor

actively participated in the prosecution of the criminal case from its inception. It was during pre-trial conference when the parties agreed to adopt their respective evidence in the civil case to the criminal case. This is allowed under Section 2 (e) of Rule 118 of the Rules of Court 17 which provides that during pre-trial conference, the parties shall consider "such other matters as will promote a fair and expeditious trial." The parties, in compliance with Section 4 of Rule 118, 18 reduced to writing such agreement. Petitioner, her counsel, and the public prosecutor signed the agreement. Petitioner is bound by the pre-trial agreement, and she cannot now belatedly disavow its contents. 19 On the second issue. Petitioner was charged with the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. 20 In general, the elements of estafa are: (1) that the accused defrauded another (a) by abuse of confidence or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. 21 Deceit is not an essential requisite of estafa with abuse of confidence, since the breach of confidence takes the place of the fraud or deceit, which is a usual element in the other estafas. 22 The elements of estafa through conversion or misappropriation under Art. 315 (1) (b) of the Revised Penal Code are: 23 (1) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond; (2) that there is conversion or diversion of such property by the person who has so received it or a denial on his part that he received it; (3) that such conversion, diversion or denial is to the injury of another and (4) that there be demand for the return of the property. Have the foregoing elements been met in the case at bar? We find the first element absent. When the money, goods, or any other personal property is received by the offender from the offended party (1) in trust or (2) oncommission or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received. 24 Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. 25 In this case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees. In People v. Locson, 26 the receiving teller of a bank misappropriated the money received by him for the bank. He was found liable for qualified theft on the theory that the possession of the teller is the possession of the bank. We explained in Locson that The money was in the possession of the defendant as receiving teller of the bank, and the possession of the defendant was the possession of the bank. When the defendant, with grave abuse of confidence, removed the money and appropriated it to his own use without the consent of the bank, there was the taking or apoderamiento contemplated in the definition of the crime of theft. 27 In the subsequent case of Guzman v. Court of Appeals, 28 a travelling sales agent misappropriated or failed to return to his principal the proceeds of things or goods he was commissioned or authorized to sell. He was, however, found liable for estafa under Article 315 (1) (b) of the Revised

Penal Code, and not qualified theft. In theGuzman case, we explained the distinction between possession of a bank teller and an agent for purposes of determining criminal liability The case cited by the Court of Appeals (People vs. Locson. 57 Phil. 325), in support of its theory that appellant only had the material possession of the merchandise he was selling for his principal, or their proceeds, is not in point. In said case the receiving teller of a bank who misappropriated money received by him for the bank, was held guilty of qualified theft on the theory that the possession of the teller is the possession of the bank. There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Article 1915, [N]ew Civil Code: Article 1730, old). Petitioner herein being a mere cash custodian had no juridical possession over the missing funds. Hence, the element of juridical possession being absent, petitioner cannot be convicted of the crime of estafa under Article 315, No. 1 (b) of the Revised Penal Code. 29
1wphi 1

WHEREFORE, the petition is hereby granted and petitioner is ACQUITTED of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. Petitioner is ordered RELEASED from custody unless she is being held for some other lawful cause. No costs.
1w phi1. nt

SO ORDERED. Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur. Footnotes
1

RTC Records, pp. 1-2. Id. at 52. Id. at 74. Id. at 179-185. Id. at 190. Id. at 199. Id. at 198. Id. at 200. Id. at 201. Id. at 203.

10

11

Id. at 248-261. Rollo, pp. 29-35. Id. at 37. Id. at 19-21.

12

13

14

Sec. 5. Who may prosecute criminal actions. All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. . ..
15 16

U.S. v. Narvas, 14 Phil. 410, 411 (1909).

Sec. 2. Pre-trial conference; subjects. The pre-trial conference shall consider the following:
17

xxx

xxx

xxx

(e) Such other matters as will promote a fair and expeditious trial. Sec. 4. Pre-trial agreements must be signed . No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel.
18 19

Pre-trial in criminal cases is now governed by Republic Act No. 8493, otherwise known as the Speedy Trial Act of 1998, and Supreme Court Circular No. 38-98. Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below shall be punished by:
20

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. xxx xxx xxx

1. With unfaithfulness or abuse of confidence, namely: . . . (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.
21

Reyes, L., The Revised Penal Code, Vol. II, 1993 ed., p. 654.

22

U.S. vs. Sevilla, 43 Phil. 186, 189 (1922).

23

Fontanilla vs. People, 258 SCRA 460, 470 (1996); Sy v. People, 172 SCRA 685, 692 (1989).
24

See Santos v. People, 181 SCRA 487, 492 (1990).

25

See Note 19 at 680-681, citing People v. Marcelino Nicolas, et. al., C.A. 58 O.G. 472; People v. Maglaya, 30 SCRA 606, 610-612 (1969).
26

57 Phil. 325 (1932). Id. at 334. 99 Phil. 703, 706-707 (1956).

27

28

29

Could the present Information sustain a conviction for qualified theft under Article 310 of the Revised Penal Code? A perusal of the Information shows that it did not allege the essential elements of "intent to gain" and "without the use of violence against or intimidation of persons or force upon things. Cf. People v. Sison, G.R. No. 123183, January 19, 2000, where a Branch Operation Officer of a bank was convicted of qualified theft on the basis of circumstantial evidence.

Republic of the Philippines

Supreme Court
Manila FIRST DIVISION
ANDRE L. D AIGLE, Petitioner, G.R. No. 174181 Present: CARPIO, LEONARDO-DE CASTRO, Acting Chairperson, DEL CASTILLO, VILLARAMA, JR., and

-versus-

PERLAS-BERNABE, PEOPLE OF THE PHILIPPINES, Respondent. Promulgated: June 27, 2012

JJ.

x-------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.: The failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.[1] Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking a reversal of the Decision[2] dated March 31, 2006 of the Court of Appeals (CA) in CA-G.R. CR No. 25830 which affirmed with modification the Decision[3] dated January 15, 2001 of the Regional Trial Court (RTC), Branch 93, San Pedro, Laguna in Criminal Case No. 0434-SPL convicting petitioner Andre L. DAigle of the crime of Estafa. Likewise assailed is the CA Resolution[4] dated August 17, 2006 denying the Motion for Reconsideration[5] thereto. Factual Antecedents On June 5, 1997, petitioner was charged with Estafa before the RTC under the following Information:
That in, about and sometime prior to December 1996, in the Municipality of San Pedro, Province of Laguna, Philippines, within the jurisdiction of this Honorable Court, the said accused being then the Managing Director of Samfit Phils. received from said Samfit, Phils. for management, care and custody the following company properties: a) b) Electric transformer worth P16,500.00 Two (2) units of electronic boxes and two (2) units of computer boxes worth P490,000.00 Machine spare parts consisting of set of rack and pinion pair of bevel and gears MB-20-30 pair of meter gears 42 teeth

c) -

d)

set of gears 32 teeth gear bith bearing inserted 3 SL 20 bearings V plate one-way clutch one-way bearing CSK 20HC5 8 of LJ 34 bearings V type roller bearing 1 x 0 8 pieces of 6200 ZZE bearing with a total value of P12,765.35 [Equipment] and raw materials valued at P162,400.00

with a total value of SIX HUNDRED EIGHTY ONE THOUSAND, SIX HUNDRED SIXTY FIVE PESOS & 35/100 (P681,665.35) under the express obligation to use the same for a particular purpose[,] that is, exclusively for the machinery of Samfit Phils. but accused far from complying with his obligation with grave abuse of confidence reposed upon him by his employer, did then and there willfully, unlawfully, and feloniously misapply, misappropriate and convert the aforesaid corporate properties to his own personal use and benefit and despite several demands made upon him, accused refused and failed and still refuses and fails to return or account for the same to the damage and prejudice of Samfit, Phils., represented by its President, Mr. Arturo Parducho, in the aforesaid sum of P681,665.35. CONTRARY TO LAW.[6]

Petitioner pleaded not guilty upon arraignment and the case was set for pre-trial and trial on the merits. During trial, the prosecution presented as its principal witness Arturo Parducho (Parducho), Director and President of Samfit Philippines, Inc. (SPI), a corporation primarily engaged in the manufacture of underwires for brassieres. According to him, petitioner was the former managing director of SPI tasked with the management of the company as well as the management, care and custody of SPIs personal properties. At the time that he was holding said position, petitioner was likewise a majority stockholder of TAC Manufacturing Corporation (TAC), an entity engaged in the fabrication of wire bending machine similar to that being used by SPI.[7] Sometime in November 1996, petitioner was divested of his duties and responsibilities as SPIs managing director[8] due to alleged conflict of business interest. Because of this, Parducho conducted an audit and inventory of SPIs properties

and reviewed its financial statements, vouchers, books of account and other pertinent records. He also interviewed some of SPIs employees.[9] These revealed that several properties of SPI such as wire materials, electronic transformer, electronic and computer boxes, machine spare parts, while still under the management, care and custody of petitioner, went missing and were left unaccounted for.[10] Further investigation revealed that some of SPIs wire bending machines, computer and electronic boxes were inside the premises of TAC. This was confirmed by Daniel Gutierrez, a former employee of TAC, who likewise admitted that TAC copied the wire bending machines of SPI.[11] In a letter dated January 14, 1997,[12] SPIs counsel formally demanded upon petitioner to turn over to SPI all its equipment under his care and custody. Ignoring the demand, petitioner was thus indicted with the present case. SPI also filed a replevin case against him for the recovery of the electronic and computer boxes. Subsequently, and by virtue of the Writ of Replevin,[13] an electronic box found inside TACs premises was recovered from petitioner while a computer box was later on surrendered to the Sheriff. In his defense, petitioner alleged that his engineering firm TAC fabricated spare parts for SPI on a daily basis. Aside from this, it also did the repair and maintenance of SPIs machines. He also claimed that he had an understanding with SPI that TAC would support SPIs operation until its business standing improves. And since petitioner only had a 10% share in SPI, TAC would fabricate for it two additional machines valued at $60,000.00 each so that he could get additional 40% share therein. Under this set-up, Samfit UK would provide the micro stepping motors and motor drives as well as the control panels. However, petitioner was not able to finish fabricating the bending machines as he was dismissed by SPI. As a consequence, he filed a labor case against it before the Department of Labor and Employment. Petitioner further claimed that SPI owes him about a million pesos for the repairs of its machines. While he admitted that SPIs electronic transformer, computer boxes and motor drives were recovered while in his possession thru a writ of replevin, he reasoned out that he did not return them to SPI after his dismissal because he intended to exercise his right of lien over them since he has properties which were still in the possession of SPI, collectibles amounting to P900,000.00, and unpaid one-month salary ofP80,000.00. Finally, he denied having appropriated the computer boxes for his own benefit.[14]

Ruling of the Regional Trial Court After trial, the RTC found that the prosecution had established the guilt of petitioner for the crime of Estafa under paragraph 1(b), Article 315[15] of the Revised Penal Code (RPC). It ratiocinated that the unjustified failure of petitioner to account for and deliver to SPI, upon demand, the properties entrusted to his care, custody and management is sufficient evidence of actual conversion thereof to his personal use. The dispositive portion of the RTC Decision[16] rendered on January 15, 2001 reads:
WHEREFORE, the Court hereby sentences accused ANDRE D AIGLE to suffer an indeterminate penalty of imprisonment of one (1) year, eight (8) months and twenty (20) days of prision correccional as minimum to twenty (20) years of reclusio[n] temporal as maximum; to indemnify private complainant in the amount of P191,665.35 and to pay costs. SO ORDERED.[17]

Aggrieved, petitioner seasonably appealed to the appellate court. Ruling of the Court of Appeals In a Decision[18] dated March 31, 2006, the CA denied petitioners appeal and affirmed with modification the trial courts Decision, viz:
WHEREFORE, the decision of the Regional Trial Court of San Pedro, Laguna (Branch 93), dated January 15, 2001, in Criminal Case No. 0434-SPL, is MODIFIED to the effect that appellant is sentenced to an indeterminate sentence of six (6) years and one (1) day of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. The decision is AFFIRMED in all other respects. SO ORDERED.[19]

Petitioners Motion for Reconsideration[20] was Resolution[21] dated August 17, 2006.

likewise

denied

in

Hence, this petition with the following assignment of errors:

I

THE COURT OF APPEALS ERRED IN DENYING PETITIONER-ACCUSED[S] MOTION FOR RECONSIDERATION FOR LACK OF VALID REASONS/JUSTIFICATION. II THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT, (RTC-BRANCH 93, SAN PEDRO, LAGUNA), AND AT THE SAME TIME MODIFYING THE EXTENT OF THE PENALTY [IMPOSED] FOR THE CRIME ALLEGEDLY COMMITTED.[22]

Our Ruling

After a circumspect consideration of the arguments earnestly pressed by the petitioner vis--vis that of the respondent People of the Philippines (respondent), and in the light of the practically parallel finding of facts and conclusions of the courts below, this Court finds the instant petition partly meritorious. Concerning the first assigned error, the Court finds no cogent reason to sustain petitioners claim that the appellate court erred in denying his Motion for Reconsideration without valid reason or justification. The reason for the appellate courts denial of petitioners Motion for Reconsideration is clear and simple, that is, after it made a thorough evaluation of the issues and arguments proffered in the said motion, the CA found that same were already passed upon and duly considered in its assailed Decision. This is very plain from the contents of the August 17, 2006 Resolution of the CA denying petitioners Motion for Reconsideration. Undoubtedly, petitioners motion for reconsideration was denied due to a valid reason and justifiable cause. Petitioner also bemoans the fact that the dispositive portion of the trial courts Decision did not expressly mention that he was found guilty beyond reasonable doubt of the crime charged. Suffice it to say, however, that a judgment is not rendered defective just because of the absence of a declaration of guilt beyond reasonable doubt in the dispositive portion. The ratio decidendi of the RTC Decision extensively discussed the guilt of the petitioner and no scintilla of doubt against the same was entertained by the courts below. Indeed, petitioners guilt was duly proven by evidence of the prosecution. In any event, a judgment of conviction, pursuant to Section 2, Rule 120 of the Rules of Court, is sufficient if it states: 1) the legal qualification of the offense

constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; 2) the participation of the accused in the offense, whether as principal, accomplice or accessory; 3) the penalty imposed upon the accused; and 4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. We find that all of these are sufficiently stated in the trial courts Decision. Anent the second assigned error, petitioner posits that the CA erred in affirming the said RTC Decision and in modifying the penalty imposed upon him since the prosecution failed to establish beyond reasonable doubt all the elements of estafa. He argues that Article 315, paragraph 1(b) of the RPC requires that the person charged was given juridical possession of the thing misappropriated. Here, he did not acquire juridical possession of the things allegedly misappropriated because his relation to SPIs properties was only by virtue of his official functions as a corporate officer. It is actually SPI, on whose behalf he has acted, that has the juridical possession of the said properties. Respondent, through the Office of the Solicitor General, on the other hand counters that the prosecutions evidence has fully established all the elements of the crime charged. Based on SPIs records, petitioner received from it various equipment of SPI on several occasions for the sole purpose of manufacturing underwires for brassieres. However after the conduct of an audit in December 1996, petitioner failed to properly account therefor. Petitioners arguments fail to persuade. Entrenched in jurisprudence are the following essential elements of Estafa under Article 315, paragraph 1(b) of the RPC:
1. That money, goods or other personal properties are received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return, the same; That there is a misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; That such misappropriation or conversion or denial is to the prejudice of another; and

2.

3.

4.

That there is a demand made by the offended party on the offender.[23]

All these elements have been sufficiently established by the prosecution. Petitioner asserts that as majority stockholder of TAC, he entered into a business transaction with SPI wherein it would fabricate bending machines and spare parts for the latter. Under their agreement, SPI would provide the necessary components to be used in the fabrication as well as the electronic devices while work would be done at petitioners premises. Pursuant to this, petitioner admitted to having received from SPI an electronic transformer, electronic box and a computer box.[24] When petitioner, however, was not able to finish the work allegedly due to his dismissal from SPI, the latter demanded for the return of its properties. However, petitioner did not heed the demand and simply kept the properties as lien for his claims against SPI.[25] From petitioners own assertions, the existence of the first and fourth of the aforementioned elements is very clear. SPIs properties were received by the petitioner in trust. He received them for a particular purpose, that is, for the fabrication of bending machines and spare parts for SPI. And when SPI made a demand for their return after petitioners alleged dismissal therefrom, petitioner deliberately ignored the same. The Court cannot agree with petitioners postulation that he did not acquire juridical possession of SPIs properties since his relation with the same was only by virtue of his official function as SPIs corporate officer. As borne out by the records, the equipment subject matter of this case were received in trust by petitioner from SPI to be utilized in the fabrication of bending machines. Petitioner was given absolute option on how to use them without any participation on the part of SPI. Thus, petitioner acquired not only physical possession but also juridical possession over the equipment. As the Court held in Chua-Burce v. Court of Appeals:[26]
When the money, goods or any other personal property is received by the offender from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received. Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. x x x

With regard to the element of misappropriation or conversion, the prosecution was able to prove this through circumstantial evidence. Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence.[27] The failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.[28] As mentioned, petitioner failed to account for, upon demand, the properties of SPI which were received by him in trust. This already constitutes circumstantial evidence of misappropriation or conversion of said properties to petitioners own personal use. Even if petitioner merely retained the properties for the purpose of preserving his right of lien over them, same is immaterial because, to reiterate, failure to return upon demand the properties which one has the duty to return is tantamount to appropriating the same for his own personal use. As correctly noted by the CA:
We are not impressed by appellants excuse. We note that SPIs demand for the return of the properties subject of this case was made on January 14, 1997. At that time, appellant was no longer the managing director of SPI, he having been terminated from his position on November 19, 1996. This observation, coupled with SPIs demand for the return of its equipment and materials, show that appellant had lost his right to retain the said properties and the fact that he failed to return or at least account for them raises the presumption of misappropriation and conversion. x x x[29]

Lastly, it is obvious that petitioners failure to return SPIs properties valued at P191,665.35 caused damage and prejudice to the latter. In a last ditch effort to evade liability, petitioner claims that the controversy between him and SPI is an intra-corporate controversy considering that he was a stockholder of the latter. Such being the case, he avers that his conviction for estafa has no basis. Contrary, however to petitioners stance, by no stretch of imagination can the Court consider the controversy between him and SPI as an intra-corporate controversy. As correctly pointed out by the CA:
Finally, we find no cogent basis, in law and in fact, which would support appellants allegation that the acts complained of in this case were corporate acts. His allegation without more that he had an agreement with Mr. Bernie Kelly of SPI to the effect that his (appellants) share in SPI would be increased to 40% in exchange for two bending machines does not give his act of retaining the properties a semblance of a corporate act. There is also no evidence that he acted on behalf of TAC Manufacturing

Corporation, much less of SPI. Premises considered, we do not agree that appellants actuation should be considered as a corporate act, for which he claims he could not be held personally liable. x x x[30]

Regarding the credibility of prosecution witnesses, the RTC found said witnesses to be credible and therefore their testimonies deserve full faith and credence. The CA for its part, did not disturb the trial courts appreciation of the same. It is a well-entrenched doctrine that factual findings of the trial court, especially when affirmed by the appellate court, are accorded the highest degree of respect and are considered conclusive between the parties.[31] Though jurisprudence recognizes highly meritorious exceptions, none of them obtain herein which would warrant a reversal of the challenged Decision. Thus, the Court accords deference to the trial courts appreciation of said testimonies. Accordingly, the RTCs finding of petitioners guilt, as affirmed by the CA, is sustained. The proper imposable penalty The penalty in estafa cases as provided under paragraph 1, Article 315 of the RPC is prision correccional in its maximum period to prision mayor in its minimum period if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00. If the amount involved exceeds the latter sum, the same paragraph provides the imposition of the penalty in its maximum period with an incremental penalty of one year imprisonment for every P10,000.00 but in no case shall the total penalty exceed twenty (20) years imprisonment. In the present case, petitioner poses no serious challenge to the amount involved which is P191,665.35. Since said amount is in excess of P22,000.00, the penalty imposable should be within the maximum term of six (6) years, eight (8) months and twenty-one (21) days to eight (8) years of prision mayor.[32] [A] period of one (1) year shall be added to the penalty for every additionalP10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which may be imposed exceed twenty (20) years.[33] Hence, sixteen (16) years must be added to the maximum term of the penalty of prision mayor. And since same exceeds twenty (20) years, the maximum term should be pegged at twenty (20) years of reclusion temporal. Applying now the Indeterminate Sentence Law, the penalty next lower than that prescribed by law which is prision correccional in its maximum toprision mayor in its minimum is prision

correccional in its minimum to medium periods. Thus, the minimum term of the indeterminate sentence should be anywhere from six (6) months and one (1) day to four (4) years and two (2) months x x x.[34] Prescinding from the foregoing discussion, the Court finds that the CA correctly pegged the penalty in its maximum term of twenty (20) years of reclusion temporal but erred in imposing the minimum term of six (6) years and one (1) day of prision mayor as same is beyond the lawful range. Thus, the Court sets the minimum term of the indeterminate penalty at four (4) years and two (2) months of prision correccional. Accordingly, petitioner is hereby sentenced to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum. WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 25830 dated March 31, 2006 and August 17, 2006, respectively, are hereby AFFIRMED with the MODIFICATION that petitioner is sentenced to suffer an indeterminate penalty of imprisonment of four (4) years and two (2) months of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum. SO ORDERED.

MARIANO C. DEL CASTILLO Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Senior Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice Acting Chairperson

MARTIN S. VILLARAMA, JR. Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

TERESITA J. LEONARDO-DE CASTRO Associate Justice Acting Chairperson

CERTIFICATION
I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

[1] [2]

[3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15]

[16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30]

Per raffle dated June 25, 2012. Per Special Order No. 1226 dated May 30, 2012. Per Special Order No. 1227 dated May 30, 2012. Lee v. People, 495 Phil. 239, 250 (2005). CA rollo, pp. 162-181; penned by Associate Justice Aurora Santiago-Lagman and concurred in by Presiding Justice Ruben T. Reyes and Associate Justice Rebecca De Guia-Salvador. Records, vol. II, pp. 500-507; penned by Judge Francisco Dizon Pano. CA rollo, pp. 225-226. Id. at 182-216. Records, vol. I, pp. 1-2. TSN, January 28, 1998, pp. 6-7. Exhibit A, records, vol. I, p. 196. TSN, January 28, 1998, p. 9. Exhibit B, records, vol. I, p. 227-230. TSN, July 13, 1998, pp. 4-5. Exhibit L, records, vol. I, p. 207. Exhibit N, id. at 212-213. TSN, November 11, 1998, pp. 14-16. Article 315. Swindling (estafa) Any person who shall defraud another by any of the means mentioned hereinbelow x x x xxxx (b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. Supra note 3. Records, vol. II, p. 507. Supra note 2. CA rollo, p. 180. Supra note 5. Supra note 4. Rollo, p. 43. Cruzvale, Inc. v. Eduque, G.R. Nos. 172785-86, June 18, 2009, 589 SCRA 534, 545. TSN, November 11, 1998, p. 14. Id. at 14-15. 387 Phil. 15, 26 (2000). Lee v. People, supra note 1. Id. CA Decision p. 13; CA rollo, p. 174. Id. at 16; id. at 177.

[31]

[32] [33] [34]

Philippine Health-Care Providers, Inc. (Maxicare) v. Estrada, G.R. No. 171052, January 28, 2008, 542 SCRA 616, 621. See Diaz v. People, G.R. No. 171121, August 26, 2008, 563 SCRA 322, 339. Id. Id.

he crime of theft is closely related to the crime of estafa. Oftentimes, it creates confusion to the victim as to what should be charged against his offender. However, although having similarities, these two crimes are very much different from each other. Theft = Material Possession + Misappropriation Theft is committed when the offender has taken a personal property of another, without the owners consent. Such taking, since it is unknown to the owner, only gives the offender material possession of the property. To define, material possession means the actual physical possession of the personal property, where the possessor does not have a better right over such property than the owner. Then, after taking the property, the offender misappropriates the property. The offender takes the property and uses it as if he is really the owner. For example, if Ana takes the mobile phone of Maria from Marias pouch without her consent, then Ana should be liable for theft. In this case, Ana has physical possession of the mobile phone, and after taking it she may use it as if it was her own. Estafa = Material Possession + Juridical Possession + Misappropriation/Conversion If the possession of the property by the offender arouse from a contract or an agreement, then the possessor has juridical possession of the property a right over the property, which he can claim and set up even against the owner. To distinguish theft from estafa, it is important to know whether the possession of the property by the offender is only material or if it is coupled with juridical possession. For example, in the case of Ana and Maria, if Maria agrees to lend Ana her mobile phone for a week, then Ana has a right over the mobile phone for that week. Maria cannot take the mobile phone from Ana during the week that they have agreed upon. Because of their agreement, Ana acquired juridical possession over the property.

But, if Ana sells the phone during the week that it was within her possession, then it is obvious that she has converted the use of the property. She was permitted to use it, but she was not authorized to sell it. If this happens, estafa is committed. Qualified Theft and Estafa Both qualified theft and estafa may be committed by abuse of confidence. However, it will be easier to determine whether the crime is qualified theft or estafa once it is settled if the possession is merely material or juridical. If it is only material possession and there was misappropriation, then the crime committed is qualified theft. If there was juridical possession and it was misappropriated or converted, then the crime committed is estafa. Case in point is Sheala Matrido vs. People of the Philippines, GR. No. 179061, July 13, 2009. In this case, Sheala was the credit and collection assistant of Empire East Land Holdings, Inc. whose duty was to collect payments from buyers of real estate properties developed by Empire East Land Holdings, Inc., issue receipts therefor, and remit the payments to employer in Makati City. Sheala failed to remit payments received from its clients, so she was charged with estafa. The Supreme Court ruled that Sheala is liable for qualified theft, not estafa. She did not have juridical possession over the amount involved. A sum of money received by an employee in behalf of the employer is considered to be only in the material possession of the employee. For there to be juridical possession, the employer must recognize such, otherwise the crime committed remains to be qualified theft.

EN BANC G.R. No. L-29243 November 28, 1969

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. PRUDENCIO MAGLAYA Y LIM, Defendant-Appellant. CONCEPCION, J.: From a decision of the Court of First Instance of Manila, defendant Prudencio Maglaya y Lim has interposed the present appeal, which was certified to Us by the Court of Appeals, the only question therein raised being one purely of law.
ch an rob lesvirt u alawlib rary ch an rob le s v irt u al la w l ib rary ch an rob les virt u al l aw lib rary

Appellant was tried, on a plea of not guilty, under an information charging him with the crime of qualified theft and alleging: That in or about and during the period comprised the month of October, 1963 to February 21, 1964, inclusive, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry away the following personal property, to wit:

1 "Walther" adding machine, Model SM-32 with Ser. No. 957285-D/R No. 2335 valued at 1 "Adler" typewriter, Model Electric 21 with Ser. No. 7113553-D/R No. 2334 valued "1 "Olympia" typewriter, Model SG-1-S, 15" carriage Ser Nos. 8698 & 695044-D/R 2342 valued at "1 "Adler" typewriter, model special 13" Ser. No. 2314432 D/R-2242 valued at "1 "Paymaster" checkwriter, Model X-550 Ser. No. 98 C-11970 D/R-2190 valued at "1 "Olivetti" Summa-Prima' adding machine Ser. No. 45446 D/R No. 2191 valued at "1 "Adler" typewriter, Model Universal E(20) 13" carriage Ser. No. 8035650 Chassis 8035650 Carriage D/R-2103 valued "1 "Adler" typewriter, Model Universal E(20) 13"carriage, Ser. Nos. 8045014 & 8044973 D/R No. 2176 valued at "1 "Adler" typewriter, model Special 13" Ser. No. 2314496 D/R No. 2260 valued at

P1,800.00

1,900.00

1,125.00

895.00

530.00

595.00

975.00

975.00

895.00

"1 "Adler" typewriter, Model Universal E (20) 15" carriage, Ser. Nos. 8066312 & 8066325 valued at "1 "Adler" typewriter, Model Universal E (20) 13" carriage, Ser. Nos. 8034905, 8035614 valued at "1 "Adler" typewriter, Model Special 13" Ser No. 2314430-D/R No. 2238 valued at "1 "Walther" Calculating machinemanual Model WSR-160, Ser. No. 165308 D/R No. 2258 valued at "1 "Adler" typewriter, model electric 21 Pica, Ser. No. 7113555 D/R 2241 valued at Total

1,050.00

975.00

895.00

780.00

1,900.00 P13,390.00

all valued at P13,390.00, belonging to the PHOENIX MFG. & MERCHANDISING CORPORATION, to the damage and prejudice of said owner, in the aforesaid amount of P13,390.00, Philippine currency.
lib rary

ch an rob lesvirt u alawlib rary ch an rob les virt u al la w

That in the commission of the said offense, the said accused committed a grave abuse of confidence, he being then employed as a salesman of the said Phoenix Mfg. and Merchandising Corporation, at the time, and as such, had free access to the place where the property stolen were kept.
c h an rob lesvirt u alaw lib rary ch an rob les virt u al l aw lib rary

Contrary to law. In due course the court rendered a decision finding that: During the period between October, 1963 and February, 1964, the defendant was a commission salesman of the Phoenix Manufacturing & Merchandising Corporation with office at Dasmarias Street, Manila. He had no fixed salary but he received a commission of 10% on the selling price of the articles he sold. The Phoenix Manufacturing & Merchandising Corporation was engaged in the sale and distribution of typewriters and adding machines, manual and electrical. The procedure followed by the corporation was for the commission agent to contact the prospective buyer and if he finds one, the commission agent reports to the corporation and a delivery receipt is made out in favor of the prospective customer indicating in the delivery receipt the name of the commission agent. The machine is then delivered by an employee of the corporation accompanied by the commission agent to the prospective customer for the purpose of trial for a period of not more than three days, extendible upon request of the commission agent. . . . that during the period from October, 1963 to January, 1964, said corporation delivered the machines enumerated in the information, with a total value of P13,390.00, to prospective customers of appellant; and that:

. . . Without authority from the Phoenix Manufacturing & Merchandising Corporation, the defendant withdrew and pulled out these machines from the respective prospective customers who had decided not to buy them, and instead of returning the said machines to the Phoenix Manufacturing and Merchandising Corporation, the accused pawned them with various pawn shops including the Agencia de Tambunting, Inc., Merced Hernandez, Agencia de Empeos de Vicente Lao, R. Pilares Pawnshop, and R. Aguirre Pawnshop, Inc. Not having returned the machines to the Phoenix Manufacturing & Merchandising Corporation, the attention of the accused was called by the company, and the accused promised to return the same. The manager of the company became suspicious, and he wrote to one of the customers, the A-1 Adjustment Agency, inquiring about the machines. The corporation received the answer, Exhibit D, dated March 4, 1964, informing the Phoenix Manufacturing Merchandising Corporation that of the 5 machines that were delivered to it for demonstration, only two were in their possession, the rest having been returned to the accused Denny Chan or Prudencio Maglaya. Upon check-up of the records of the accused, it was found out that several machines had been delivered under the name of the defendant and had not been returned. The matter was reported to the Manila Police Department in the letter dated March 5, 1965 and now marked Exhibit B, enumerating the machines which were missing. The accused was arrested by the police and his statement was taken in writing, now marked Exhibit A. He admitted that he had taken the machines enumerated in Exhibit B and covered by the delivery receipts, Exhibits C, C-1 to C-12; and that he had pawned them with various pawnshops; and he surrendered to the police 6 pawnshop tickets now marked Exhibits G, H, I, J, K and L. Seven other machines were covered by pawnshop tickets, but all the 13 machines described in the delivery receipts, Exhibits C to C-12, were recovered by the police and returned to the Phoenix Manufacturing & Merchandising Corporation, as evidenced by the receipts Exhibits E and F.
ch an rob lesvirt u alawlib rary ch an rob le s v irt u al la w l ib rary

The accused admitted having received these office machines and pawned them. He testified further that he had done this in the past, but without the knowledge of the corporation whenever he needed money because his wife and children were sick, but he redeemed them when he had money and returned them to the corporation; that he had informed Mrs. Fuster and the manager of the corporation that he had pawned these machines, and they told him not to do it again.
ch an rob lesvirt u alawlib rary ch an rob les virt u al la w lib rar y

Neither Mrs. Fuster nor the manager of the corporation could relieve the accused from criminal liability. As commission agent, it was the duty of the accused when he withdrew or pulled out those machines from the customers to return them to the Phoenix Manufacturing & Merchandising Corporation. In pawning the machines without the authority of the corporation, he had acted in breach of the trust reposed upon him by the corporation and this constitutes the crime of estafa. Premised upon the foregoing facts, the trial court found appellant guilty of estafa, under "Art. 308, par. (1) of the Revised Penal Code," and sentenced him to an indeterminate penalty ranging from six (6) months of arresto mayorto five (5) years, five (5) months and eleven (11) days of prision correccional, as well as to pay the costs. Hence, this appeal, upon the ground that he cannot be convicted of estafa under the allegations of the aforementioned information charging him with qualified theft.
ch an rob lesvirt u alawlib rary ch an rob les virt u al la w lib rar y

In this connection, We note that, although convicting appellant of estafa, the provision cited in the decision appealed from is Art. 308, paragraph one (1), of the Revised Penal Code, which defines the crime of theft, and that the maximum penalty meted out is, either that prescribed in subdivision 2 of Art. 309 of the same Code, which refers to theft of property worth more than P6,000 but not exceeding P12,000, or that provided for in the first paragraph of Art. 315 of said Code, for the crime of estafa, when the damage caused is over P12,000 but does not exceed P22,000. It would seem, however, that His Honor, the trial Judge had applied the latter provision, because of the characterization, made in said decision, of the crime committed by the accused. .
ch an rob lesvirt u alawlib rary ch an rob le s v irt u al la w l ib rary

Although both parties argue in their respective briefs on whether, the crime of estafa is included in that of qualified theft alleged in the information filed in this case, We deem it unnecessary to pass upon such question, for, under the facts proven, appellant is guilty of the crime of theft. It is true that the machines specified in the information were delivered to him by his prospective customers, but the physical possession thus secured by him did not vest in him the juridical possession necessary for the

crime of estafa. Indeed, he had no authority from his employer, the owner of said machines, to retrieve the same from said prospective customers. He evidently had misled them into believing that in retaking said machines he was acting on behalf of his employer. From a legal viewpoint, he had, therefore, taken and carried away the machines without the knowledge and consent of the owner thereof. Having concededly performed these acts with intent of gain, and caused damage and prejudice to said owner, appellant is clearly guilty of the crime of theft.
c h an rob lesvirt u alaw lib rary ch an rob les virt u al l aw lib rary

Thus, in U.S. v. De Vera,1 We held that one who, having secured possession of a gold bar from its owner under the pretext that he (the former) would have it examined by a silversmith and then return it to said owner, but, instead disappeared with the gold bar, was guilty of theft, not of estafa. Quoting with approval, from Viada, the eminent commentator on the Spanish Penal Code, the following passage, involving a situation which is quite analogous to the one at bar: Is the shepherd, who takes away and converts to his own use several heads of the cattle under his care, guilty of the crime of estafa, within case No. 5 of article 548, or of theft, defined and punished in article 533, No. 2, of the Code? - The Supreme Court has decided that it was this latter and more serious crime that was committed: "Considering that the crime of theft is committed when one, with intent of gain, and without using violence or intimidation against persons, or force upon things, takes away personal property of another without the owner's consent; and in the present case Manuel Diaz Castilla undoubtedly committed the crime defined, for, with intent of gain, he took away two bucks and a female goat, against the will of his master, the owner of the said cattle, which were under his care as shepherd: Considering that, in holding that the crime committed was that of theft and not of estafa, as claimed by the appellant, ignorant of the true elements which constitute latter crime, the lower court did not commit any error of law, nor violate any legal provision, as contended by defendant's counsel in support of this appeal." (Decision rendered June 23, 1886, published in the Gazette of September 16, p. 189.) We added in our decision in the De Vera case: "In the above cited case, did the shepherd receive the cattle which were under his care? Undoubtedly. Were the cattle voluntarily delivered by the owner to the shepherd? - It is to be presumed. Did the shepherd have the consent of the owner when he took away some of the cattle and converted them to his own use? - No. In this case of the shepherd, as in the example given, the crime committed was that of theft, notwithstanding the fact that the thing misappropriated had been delivered voluntarily by the owner to the supposed thief, who disposed of it without the owner's consent. And this is so becausethe delivery of the cattle to the shepherd does not have the effect of transferring the juridical possession of, or title to, the rattle thus delivered , . . . .2 The doctrine laid down in the De Vera case was applied in People v. Lacson3 and in People v. Isaac,4 involving, in the first case, a bank teller who misappropriated money held by him as such, and, in the second, the temporary driver of a jeepney engaged in public service 5 who disposed of it with intent of gain and without the consent of its owner, upon the theory that the bank teller had the money on behalf of the bank, which was its juridical possessor, and that the jeepney was in the juridical possession of its owner, although physically held by said temporary driver.
ch an rob lesvirt u alawlib rarych an rob l es virt u al l aw lib rary

Although appellant had taken advantage of his position in committing the crime aforementioned, We do not believe he had acted with grave abuse of confidence and can be convicted of qualified theft, because his employer had never given him the possession of the machines involved in the present case or allowed him to take hold of them, and it does not appear that the former had any especial confidence in him. Indeed, the delivery of the machines to the prospective customers was entrusted, not to appellant, but to another employee.
c h an rob lesvirt u alaw lib rary ch an rob les virt u al l aw lib rary

Inasmuch as the aggregate value of the machines stolen by appellant herein is P13,390.00, the crime committed falls under Art. 308, in relation to the first subdivision of Art. 309 of the Revised Penal Code, which prescribes the penalty of prision mayor in its minimum and medium periods. No modifying circumstance having attended the commission of the offense, said penalty should be meted

out in its medium period, or from 7 years, 4 months and 1 day to 8 years and 8 months of prision mayor. The penalty imposed in the decision appealed from is below this range.
ch an rob lesvirt u alawlib rar y ch an rob le s virt u al l aw lib rary

WHEREFORE, with the modification that appellant should be sentenced to an indeterminate penalty ranging from 2 years, 4 months and 1 day of prision correccional to 7 years, 4 months and 1 day of prision mayor, the decision appealed from is hereby affirmed, in all other respects, with costs against him. It is so ordered.
ch an rob lesvirt u alawlib rary ch an rob le s virt u al la w l ib rary

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando and Teehankee, JJ., concur.

Endnotes:
1

43 Phil. 1000.

ch an rob lesvirt u alawl ib rary ch an rob l es virt u al l aw lib rary

Emphasis ours.

ch an rob les virt u ala wlib rary ch an rob les virt u al law lib rary

57 Phil. 325, 334. 96 Phil. 931, 932.

ch an rob lesvirt u alaw lib rary ch an rob les virt u al l aw lib rary

ch an rob lesvirt u alaw lib rary ch an rob les virt u al l aw lib rary

The regular driver of which was on vacation.

III. THEFT
A. ELEMENTS OF THEFT: (308) 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. 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Persons liable: 1. Those who a) b) with intent to gain but without violence against or intimidation of persons not force upon things

c) d) e) f)

take personal property of another without the latters consent

1. Those who

a) b)

having found lost property fail to deliver the same to local authorities or its owner

Notes: 1. Retention of money/property found is theft. Retention is failure to return (intent to gain) 2. Knowledge of owner is not required, knowledge of loss is enough 3. Finder in law is liable 4. Those who a) b) after having maliciously damaged the property of another remove or make use of the fruits or object of the damage caused by them

Note: Killing of cattle of another which destroyed his property and getting meat for himself 1. Those who a) b) c) enter an enclosed estate or a field where trespass is forbidden or which belongs to another and, without the consent of its owner hunts or fish upon the same or gather fruits, cereals or other forest or farm products

Notes: 1. Theft is consummated when offender is able to place the thing taken under his control and in such a situation as he could disclose of it at once (though no opportunity to dispose) i.e, the control test 2. P v. Dino applies only in theft of bulky goods (meaning there has to be capacity to dispose of the things). Otherwise, P v. Espiritu full possession is enough 3. Servant using car without permission deemed qualified theft though use was temporary 4. Reyes says: there must be some character of permanency in depriving owner of the use of the object and making himself the owner, therefore must exclude joyride 5. Theft: if after custody (only material possession) of object was given to the accused, it is actually taken by him (no intent to return) e.g. felonious conversion. But it is estafa if juridical possession is transferred e.g., by contract of bailment 6. Includes electricity and gas

1. inspector misreads meter to earn 2. one using a jumper 7. Selling share of co-partner is not theft 8. Salary must be delivered first to employee; prior to this, taking of Php is theft 9. If offender claims property as his own (in good faith) not theft (though later found to be untrue. If in bad faith theft)

10. Gain is not just Php satisfaction, use, pleasure desired, any benefit (e.g. joyride) 11. Actual gain is not necessary (intent to gain necessary) 12. Allege lack of consent in info is important

C.PENALTIES FOR QUALIFIED THEFT; (309) D. ELEMENTS OF QUALIFIED THEFT: (310) 1. Committed by domestic servant, or 2. With grave abuse of confidence, or 3. Property stolen is: 1. motor vehicle 2. mail matter 3. large cattle 4. coconut from plantation 5. fish from fishpond or fishery, or 6. On occasion of calamities and civil disturbance. Notes: 1. grave abuse high degree of confidence e.g. guests 2. no confidence, not qualified theft 3. theft material possession estafa juridical possession 4. qualified: if done by one who has access to place where stolen property is kept e.g., guards, tellers 5. novation theory applies only if theres a relation 6. industrial partner is not liable for QT (estafa) 7. when accused considered the deed of sale as sham (modus) and he had intent to gain, his absconding is QT 8. see carnapping law: RA 6539 9. motor vehicle in kabit system sold to another-theft. Motor vehicle not used as PU in kabit system but under K of lease-estafa 10. 10. mail matter private mail to be QT, Not postmaster Art. 226 11. theft of large cattle

VI. SWINDLING AND OTHER DECEITS A. ELEMENTS OF ESTAFA IN GENERAL: (315)

1. That the accused defrauded another (a.) by abuse of confidence, or (b) or means of deceit and 2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person

B. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS: (315) 1. That the offender has an onerous obligation to deliver something of value. 2. That he alters its substance, quantity, or quality. 3. That damage or prejudice is caused to another. C. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER SUBDIVISION NO.1 PAR. (B), OF ART.315 1. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return, the same. 2. That there be misappropriation or conversion of such money or property by the offender, or dental on his part of such receipt. 3. that such misappropriation or conversion or dental is to the prejudice of another and 4. That there is a demand made by the offended party to the offender. D. 2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER PARAGRAPH (B), SUBDIVISION N0.1, ART. 315 = 3 WAYS OF COMMITTING: 1. By misappropriating the thing received. 2. By converting the thing received. 3. By denying that the thing was received. Notes: 1. Unfaithful or Abuse of Confidence a. by altering the substance b. existing obligation to deliver even if it is not a subject of lawful commerce c. thing delivered has not been fully or partially paid for not estafa
3. no agreement as to quality No estafa if delivery is unsatisfactory

1. By misappropriating and converting 1. thing is received by offender under transactions transferring juridical possession, not ownership 2. under PD 115 (Trust Receipts Law) failure to turn over to the bank the proceeds of the sale of the goods covered by TR Estafa 3. same thing received must be returned otherwise estafa; sale on credit by agency when it was to be sold for cash estafa 4. Estafa not affected by Novation of Contract because it is a public offense

5. Novation must take place before criminal liability was incurred or perhaps prior to the filing of the criminal information in court by state prosecutors 6. Misappropriating to take something for ones own benefit

g. Converting act of using or disposing of anothers property as if it was ones own; thing has been devoted for a purpose or use different from that agreed upon 1. There must be prejudice to another not necessary that offender should obtain gain 2. When in the prosecution for malversation the public officer is acquitted, the private individual allegedly in conspiracy with him may be held liable for estafa 9. Partners No estafa of money or property received for the partnership when the business is commercial and profits accrued. BUT if property is received for specific purpose and is misappropriated estafa! 10. Failure to account after the DEMAND is circumstantial evidence of misappropriation 11. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof 12. In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the ting to him otherwise, Estafa 13. Servant, domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft Estafa with Abuse of Confidence
Offenders are entrusted with funds or property and are continuing offenses Funds: always private Offender: private individual, or public officer not accountable

Malversation
offenders are entrusted with funds or property and are continuing offenses Funds: public funds or property Offender: public officer accountable for public funds Committed by appropriating, taking,

Committed by misappropriating, converting, denying having received money

misappropriating

E. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE IN BLANK: (315) 1. That the paper with the signature of the offended party be in blank. 2. That the offended party should have delivered it to offender. 3. That above the signature of the offended party a document is written by the offender without authority to do so. 4. That the document so written creates a liability of, or causes damage to, the offended party or any third person. Note: If the paper with signature in blank was stolen Falsification if by making it appear that he participated in a transaction when in fact he did not so participate. F. ELEMENTS OF ESTAFA BY MEANS OF DECEIT: (315) 1. that there must be a false pretense, fraudulent means must be made or executed prior to or 2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud.

3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means. 4. That as a result thereof, the offended party suffered damage.

Notes: 1. False pretenses or fraudulent acts executed prior to or simultaneously with delivery of the thing by the complainant 2. There must be evidence that the pretense of the accused that he possesses power/influence is false. G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315) 1. That the offender postdated a check, or issued a check in payment of an obligation. 2. That such postdatig or issuing a check was done when the offender had no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check. Notes: 1. good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31) 2. dishonor from lack of funds to prima facie evidence of deceit or failure to make good within three days after notice of. 3. No funds in the bank or his funds are not sufficient 4. If check was issued in payment of pre-existing debt no estafa 5. Offender must be able to obtain something from the offended party by means of the check he issues and delivers 6. If postdating a check issued as mere guarantee/promissory note no estafa. H. ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH OF SECTION 1: BP 22 1. That a person makes or draws and issues any check. 2. That the check is made or drawn and issued to apply on account or for value. 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment. 1. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. Note: Failure to make good within 5 banking days prima facie evidence of knowledge of lack and insufficiency I. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH OF SECTION 1: BP 22 1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check. 2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon.

1. That the check is dishonored by the drawee bank.

Note: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency J. BY OBTAINING FOOD OR CREDIT AT HOTELS, INNS, RESTAURANTS ETC. K. ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY DOCUMENTS: (315) 1. That the offender induced the offended party to sign a document. 2. That deceit be employed to make him sign the document. 3. That the offended party personally signed the document. 4. That prejudice be caused. Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document falsification; but where the accused made representation to mislead the complainants as to the character of the documents estafa L. ELEMENTS OF ESTAFA BY REMOVING, CONCEALING OR DESTROYING DOCUMENTS: (315) 1. That there be court records, office files, documents or any other papers. 2. That the offender removed, concealed or destroyed any of them. 3. That the offender had intent to defraud another. Note: No intent to defraud destroying or removal = malicious mischief M. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION: (315) (second element of any form of estafa) THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF.: 1. The offender party being deprived of his money or property, as a result of the defraudation. 2. Disturbance in property right or 3. Temporary prejudice. N. ELEMENTS OF SWINDLING (PAR.1) BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE OWNER OF THE SAME: (316) 1. That the thing be immovable, such as a parcel of land or a building. 2. That the offender who is not the owner of said property represented that he is the owner thereof. 3. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property). 4. That the act be made to the prejudice of the owner or a third person. ESTAFA Private individual was entrusted INFIDELITY IN THE CUSTODY OF DOCUMENTS

Public officer entrusted

Intent to defraud

No intent to defraud

O. ELEMENTS OF SWINDLING (PAR. 2) BY DISPOSING OF REAL PROPERTY AS FREE FROM ENCUMBRANCE, ALTHOUGH SUCH ENCUMBRANCE BE NOT RECORDED: (316)

1. that the thing disposed of be real property. 2. That the offender knew that the real property was encumbered, whether the encumbrance is recorded or not. 3. That there must be express representation by the offender that the real property is free from encumbrance. 4. That the act of disposing of the real property be made to the damage of another.

P. ELEMENTS OF SWINDLING (PAR.3) BY WRONGFULLY TAKING BY THE OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR: (316) 1. That the offender is the owner of personal property. 2. That said personal property is in the lawful possession of another. 3. That the offender wrongfully takes it from its lawful possessor. 4. That prejudice is thereby caused to the possessor or third person. Q. ELEMENTS OF SWINDLING (PAR. 6) BY SELLING, MORTGAGING OR ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS SURETY: (316) 1. That the offender is a surety in a bond given in a criminal or civil action. 2. That he guaranteed the fulfillment of such obligation with his real property or properties. 3. That he sells, mortgages, or, in any other manner encumbers said real property. 4. That such sale, mortage or encumbrance is (a) without express authority from the court, or (b) made before the cancellation of his bond, or (c) before being relieved from the obligation contracted by him. R. ELEMENTS OF SWINDLING A MINOR: (317) 1. That the offender takes advantage of the inexperience or emotions or feelings of a minor. 2. That he induces such minor (a) ro assume an obligation, or (b) to give release, or (c) to execute a transfer of any property right. 3. That the consideration is (a) some loan of money (b) credit or (c) other personal property. 4. That the transaction is to the detriment of such minor. S. ELEMENTS OF OTHER DECEITS: (318) 1. not mentioned above; 2. interpretation of dreams, forecast, future-telling for profit or gain.