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Republic of the Philippines

Department of Justice, Region V


National Prosecution Service
CITY PROSECUTION OFFICE
Sorsogon City, Sorsogon
SIMON DEYTO
V-06-INV-14K-0289
Complainant,

NPS docket No.


For: QUALIFIED

THEFT
-VersusARTURO ESICO &
LESLIE DEMDAM
Respondents
x----------------------------------------x
URGENT MOTION FOR RECONSIDERATION
COMES NOW the Complainant, through the undersigned
counsel, unto this Honorable Office, respectfully moves for the
reconsideration of the abovementioned resolution by averring the
following:
TIMELINESS OF THE MOTION
1. On February 27, 2015, the Complainant received
a Resolution dated February 5, 2015 over the case which
states, among others:
WHEREFORE,
premises
considered
undersigned
investigating
prosecutor
respectfully recommends the dismissal of
the above-entitled case in view of the
pendency of a civil case involving the same
parties for the same cause and for
insufficiency of evidence.
That before the issuance of the said Resolution by
the Honorable Office, the Complainant filed a comment
regarding the counter-affidavit filed by the Respondents.
Obviously, such reply was not considered in view of the
issuance of the assailed resolution on the same day that
the Complainant was furnished a copy of the counteraffidavit. Hence the Complainant has fifteen (15) days

within which to file a motion for reconsideration or an


appeal.
That on March 30, 2015, the Honorable Office issued
a resolution denying the motion for reconsideration solely
by reason of
lack of verification as required under the Revised Manual
for Prosecutors. The said resolution was received by the
Complainant on May ___, 2015.
That the complaints filed before the Honorable Office
must be resolved on merits rather than technicalities if
substantial justice is to be served.
GROUNDS
2. Herein Complainant moves for a reconsideration of
the above-mentioned Resolution based on the following
grounds:
I.
THE HONORABLE OFFICE ERRED IN NOT FINDING
THAT THE ASSAILED ACTS OF THE RESPONDENTs
CONSTITUTED THE CRIME OF QUALIFIED THEFT.
II.
THE HONORABLE OFFICE ERRED WHEN IT
DISMISSED THE INSTANT CASE INVOLVING THE SAME
PARTIES AND FOR THE SAME CAUSE AND FOR
INSUFFICIENCY OF EVIDENCE.
III.
THE
HONORABLE
OFFICE
DENIED
THE
COMPLAINANT OF DUE PROCESS WHEN IT ISSUED A
RESOLUTION ON THE SAME DAY THAT IT FURNISHED
COMPLAINANT A COPY OF THE COUNTER AFFIDAVIT OF
THE RESPONDENTS.
IV.
THE HONORABLE OFFICE GRAVELY ERRED WHEN
IT DEALTWITH EVIDENTIARY MATTERS IN RESOLVING THE
COMPLAINT.
V.
THE HONORABLE OFFICE ERRED WHEN IT
DENIED THE MOTION FOR RECONSIDERATION BASED ON
TECHNICALITIES.
ARGUMENTS/ DISCUSSIONS
I.

Anent the first issue, the respondents should be


indicted for qualified theft in view of the presence of all of
the elements of the felony. The elements of the crime of
theft as provided for in Article 308 of the Revised Penal Code
are as follows: (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.People v. Sison,
G.R. No. 123183, January 19, 2000, 322 SCRA 345, 363364.Theft becomes qualified when any of the following
circumstances under Article 310 (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. People v.
Sison, supra note 10 at 364.
There is no cavil that all these elements are present in the
instant case: 1. There was taking of personal property, the
lumbers; 2. The lumbers taken by the herein respondents
belonged to CONSOLACION DEYTO; 3. It was taken with
intent to gain considering the fact that it was piled and
transported to another place using a vehicle; 4. The taking
was done without the consent of the legitimate owner; 5.
The taking was done without the use of violence against or
intimidation of persons or force upon things.
The claim given by the respondents through judicial
affidavits constitute negative testimonies which cannot
prevail over positive testimonies of the three (3) witnesses
who actually saw them in the act of taking the lumbers
without the consent and presence of the legitimate owner.
The ruling by the High Court is instructive:
In the absence of corroborative evidence, the Court would
not be prepared to accept the usual lame defense of denial
over the straightforward and positive declaration of a
witness since denials constitute self-serving negative

evidence which cannot be accorded greater evidentiary


weight than the declaration of credible witnesses who testify
on affirmative matters. Thus, in the case of contradictory
declarations and statements, greater weight is generally
given to positive testimonies than to mere denials. People v.
Antonio, G.R. No. 107950, 17 June 1994, 233 SCRA 283, 299;
Vda de Ramos v. Court of Appeals, 171 Phil. 354, 364
(1978).
II.
As regards the second issue, the Honorable Office misconstrued
the pendency of the civil case for unlawful detainer vis--vis the
instant case as ground for dismissal. There is no cavil that it
hinges its findings on the issue of the so-called prejudicial
question. The term prejudicial question is found in Section 6,
Rule 111 of the 2000 Revised Rules of Criminal Procedure, which
states that:
A petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed in
the office of the prosecutor or the court conducting the
preliminary investigation. When the criminal action has been filed
in court for trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution rests.
As can be gleaned from above, a petition for suspension of the
criminal action based on the existence of prejudicial question may
be raised either during the preliminary investigation stage before
the prosecutor conducting the same or during the pendency of a
criminal trial where it is filed before the court hearing the case.
Jurisprudence has also defined a prejudicial question as that
which arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of
which pertains to another tribunal. The prejudicial question must
be determinative of the case before the court but the jurisdiction
to try and resolve the question must be lodged in another court or
tribunal. It is a question based on a fact distinct and separate
from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused. (See Rojas vs.
People, 57 SCRA 246; People vs. Aragon, 94 Phil. 357; Zapanta vs.
Montessa, 4 SCRA 510 and Benitez vs. Concepcion, 2 SCRA 178)
The elements of
Section 7, Rule
Procedure, these
involves an issue

a prejudicial questions are enumerated under


111 of the 2000 Revised Rules of Criminal
are: (a) the previously instituted civil action
similar or intimately related to the issue raised

in the subsequent criminal action, and (b) the resolution of such


issue determines whether or not the criminal action may
proceed.
If both civil and criminal cases have similar issues or the issue in
one is intimately related to the issues raised in the other, then a
prejudicial question would likely exist, provided the other element
or characteristic is satisfied. For example, in a criminal case for
bigamy, the accused may raise the pendency of a civil suit for the
declaration of nullity of his first marriage to defer the proceedings
of the bigamy case.
Mere similarity of issues does not suffice to uphold the validity of
a prejudical question. It must appear not only that the civil case
involves the same facts upon which the criminal prosecution
would be based, but also that the resolution of the issues raised in
the civil action would be necessarily determinative of the guilt or
innocence of the accused. If the resolution of the issue in the civil
action will not determine the criminal responsibility of the accused
in the criminal action based on the same facts, or there is no
necessity _that the civil case be determined first before taking up
the criminal case,_ therefore, the civil case does not involve a
prejudicial question. Neither is there a prejudicial question if the
civil and the criminal action can, according to law, proceed
independently of each other.
It must be remembered however, that a prejudicial question does
not conclusively resolve the guilt or innocence of the accused but
simply tests the sufficiency of the allegations in the information in
order to sustain the further prosecution of the criminal case. A
party who raises a prejudicial question is deemed to have
hypothetically admitted that all the essential elements of a crime
have been adequately alleged in the information, considering that
the prosecution has not yet presented single evidence on the
indictment or may not yet have rested its case. A challenge of the
allegations in the information on the ground of prejudicial
question is in effect a question on the merits of the criminal
charge through a non-criminal suit.
Certainly, the pendency of unlawful detainer case does not
affect the institution of a criminal case for qualified theft. This is
so because the issue involved in unlawful detainer is who has
better right to possess between the parties. On the other hand,
qualified theft is a criminal offense for taking personal property
without the consent of the owner under qualifying circumstances.
The rulings of the High Tribunal are instructive:
An action for unlawful detainer exists when a person unlawfully
withholds possession of any land or building against or from a

lessor, vendor, vendee or other persons, after the expiration or


termination of the right to hold possession, by virtue of any
contract, express or implied.Racaza v. Gozum, 523 Phil. 694, 707
(2006).The only issue to be resolved in an unlawful
detainer case is physical or material possession of the
property involved, independent of any claim of ownership
by any of the parties involved. Mendoza v. Court of Appeals,
492 Phil. 261, 265 (2005).Thus, when the relationship of lessor
and lessee is established in an unlawful detainer case, any
attempt of the parties to inject the question of ownership into the
case is futile, except insofar as it might throw light on the right of
possession.Eastern Shipping Lines, Inc. v. Court of Appeals, 424
Phil. 544, 554 (2002), (Underscoring ours).
III.
The Resolution rendered by the Honorable Office on the
same day that the Complainant was furnished a copy of the
Respondents counter-affidavit through mail offends the broad
principle of due process. It is fully aware of the existing
predicaments suffered by mailing system in the Philippines. This
is notwithstanding the fact that the Complainant received a copy
of the said counter-affidavit only on February 5, 2015. Ergo, we
must subscribe to the persuasiveness of the decisions of the
Supreme Court in a catena of cases:

The assailed decision of the CA acquitting the respondent without


giving the Solicitor General the chance to file his comment on the
petition for review clearly deprived the State of its right to refute
the material allegations of the said petition filed before the
CA. (People vs. Duca, G.R. No. 171175, October 30, 2009)The said
decision is, therefore, a nullity. In Dimatulac v. Villon, G.R. No.
127107, October 12, 1998, 297 SCRA 679, we held:

Indeed, for justice to prevail the scales must


balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties
which have been wronged must be equally
considered. Verily, a verdict of conviction is not
necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice; for, to the society
offended and the party wronged, it could also mean
injustice. Justice then must be rendered even-handedly

to both the accused, on one hand, and the State and


offended party, on the other,Id. at 714.

It must be noted that the Complainant has filed a reply to


refute the inky and unsubstantial matters raised by the
respondents before the receipt of the Resolution from the
Honorable Office. By clear disregard of the right of the
complainant to due process, the controversial Resolution
must be assailed as wholly infirm. It must be
remembered that bare allegations unsubstantiated
by
evidence,
are
not
equivalent
to
proof.( Domingo vs. Robles, 453 SCRA 812, March
18, 2005) (underscoring ours)
Basic is the rule that mere allegation is not evidence and
is not equivalent to proof. Charges based on suspicion
and speculation likewise cannot be given credence.
A complainant cannot rely on mere conjectures and
suppositions (Sasing vs. Gelbolingo, A.M. No. P-12-3032,
February 20, 2013).
Evidence to be believable must not only proceed
from the mouth of a credible witness, but must be
credible in itself such as the common experience
and observation of mankind can approve as
probable under the circumstances (People vs.
Calumpang, 454 SCRA 719 [2005].
IV.
The Honorable office gravely erred when it dealt with
evidentiary matters in resolving the complaint. It went
beyond its duties when it considered trivial matters which
are evidentiary in nature. The rulings of the High Court are
instructive:
In the conduct of preliminary investigation, the
prosecutor does not decide whether there is
evidence beyond reasonable doubt of the guilt of
the respondent. A prosecutor merely determines
the existence of probable cause, and to file the
corresponding information if he finds it to be so (De
Chavez vs. Ombudsman, G.R. Nos. 168830-31,
February 6, 2007). Probable cause implies

probability of guilt and requires more than bare


suspicion but less than evidence to justify a
conviction (Manebo vs. Acosta, G.R. no. 169554,
October 28, 2009), (Underscoring ours).
The purpose of preliminary investigation is to determine
whether a) a crime has been committed; and (b) there is
probable cause to believe that the accused is guilty
thereof (Manebo vs. Acosta, G.R. no. 169554, October 28,
2009).
However the ultimate purpose of preliminary investigation
is to secure the innocent against hasty, malicious and
oppressive prosecution and to protect him from open and
public accusation of a crime, from the trouble, expenses
and useless and expensive prosecutions (Sales vs.
Sandiganbayan, G.R. No. 143802, November 16, 2001).
Attached and referred to herewith are the following documents:
a. Special Power of Attorney issued in its favor by the
children of
Consolacion Deyto.
b. Confirmation of Absolute Sale
c. Other documents attached in Reply
Wherefore, premises considered, we beseech the Honorable
Prosecutor to reconsider the above stated Resolution.
Other reliefs which are just and equitable are also prayed for.
City of Sorsogon, May 12, 2015.
ATTY. JOEL E. FULGUERAS
Counsel for the Complainant
Kasanggayahan Village, Capitol Compound,
Sorsogon City
C.P. No. 09088119664
PTR No.14526
31 /1/8/2016 / SORSOGON CITY
IBP NO. 928303/1/6/2015 / Sorsogon
ROLL NO. 63054
Admitted to the BAR: May 7, 2014
MCLE Compliance No. V-0006083
VERIFICATION AND CERTIFICATION

REPUBLIC OF THE PHILIPPINES)


Province of Sorsogon
) S.S.
City of Sorsogon
)
I, SIMON DEYTO, of legal age and presently residing at
Barangay San Isidro, Bacon, Sorsogon City, Philippines, after
having been duly sworn to in accordance with law, hereby depose
and say: That I am the Complainant in the above-entitled case;
That I have caused the preparation of the Motion for
Reconsideration and I have read the same and know the contents
thereof; That the allegations contained therein are true and
correct of my own personal knowledge.
That I further certify that: (a)I have not theretofore
commenced any other action or proceeding or filed any claim
involving the same issues or matter in any court tribunal or quasijudicial agency and, to the best of my knowledge, no such action
or proceeding is pending herein; (b) If I should therefore learn that
the same or similar action or proceeding has filed or pending the
supreme court , the Court of Appeals, or any other tribunal or
quasi-judicial agency, I undertake to report such fact within five
(5) days there from to the court or agency wherein the original
pleading and sworn certification contemplated herein have been
filed.
IN WITNESS WHEREOF, I have hereunto set my hand this
_______________, at Sorsogon City, Philippines.
SIMON DEYTO
Affiant
SUBSCRIBED
AND
SWORN
to
before
this___________________, at Sorsogon City, Philippines.
Doc. No. ______;
Page No. ______;
Book No.______;
Series of 2015
Cc:
ATTY. FERDINAND LAGUNA
Counsel for the Respondents
San Juan Roro, Sorsogon City

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