G.R. No.

209227, March 25, 2015 the National Bureau of Investigation (NBI) Legazpi City District office, Arca gave descriptions of
the faces of appellant and the dark thin man who stabbed Yap (“John Doe”). From a surveillance
digital photo and video clip shown to him, Arca positively identified Abner Astor (Astor) as one of
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CHARLIE OROSCO, Accused-
Appellant. the two men sitting beside the store as lookouts. Consequently, warrants of arrest were issued
against appellant and Astor. But only appellant was arrested as Astor, John Doe and Peter Doe
remained at large.
DECISION
Dr. Belgira affirmed the findings in his Medico-Legal Report5 stating:chanRoblesvirtualLawlibrary
VILLARAMA, JR., J.:
TRUNK:
1
On appeal is the Decision dated March 22, 2013 of the Court of Appeals (CA) in CA-G.R. CR-HC
No. 05171 which affirmed the Decision2 dated June 24, 2011 of the Regional Trial Court of Legazpi 1) Stab wound, left anterior costal region, measuring 2 x 0.5 cm, 5 cm from the anterior
City, Branch 10 finding the accused-appellant Charlie Orosco guilty of the crime of Robbery with midline, 9 cm deep. The wound tract is directed posteriorwards, upwards and
Homicide. medialwards, cutting the sixth anterior thoracic rib and piercing the heart.

Appellant, along with Abner Astor, “John Doe” and “Peter Doe,” were charged with Robbery with CONCLUSION:
Homicide defined and penalized under Article 294 of the Revised Penal Code, as amended. The
Information reads as follows:chanRoblesvirtualLawlibrary The cause of death is hemorrhagic shock secondary to a stab wound of the trunk.cralawlawlibrary

He explained that it was possible that the lone stab wound caused by a sharp object, such as a knife,
That on or about the 16th day of May, 2006, in the City of Legazpi, Philippines, and within the
was inflicted while the victim was standing, and found no other injuries such as defense
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
wounds.6cralawred
helping one another, with intent of gain and by means of violence, did then and there [willfully],
unlawfully, feloniously and forcibly enter the store owned by one Lourdes Yap situated at Purok 4,
For his defense, appellant testified that on the date and time of the incident, he was at his house in
Barangay Rawis, Legazpi City, and once inside said store, take, steal and carry away cash money, to
Bigaa taking care of his three-year-old child while his wife was washing clothes. He stayed in the
the damage and prejudice of said Lourdes Yap, and by reason of or on occasion of said robbery, and
house until his wife finished the laundry at past 3:00 p.m. He denied knowing Yap and his co-
for the purpose of enabling them to take, steal and carry away the aforesaid cash money in pursuance
accused Astor. While he admitted that he was a resident of Purok 4, Bgy. Rawis, his family
of their conspiracy, did then and there [willfully], unlawfully and feloniously and taking advantage
transferred to their other house at Bigaa. He denied knowing Arca and he does not know of any
of their superior strength and with intent to kill, attack, assault and stab the aforesaid Lourdes Yap,
motive for Arca to testify against him. He worked in a copra company in Lidong but stopped
thereby inflicting upon her injury which directly caused her untimely death, to the damage and
reporting for work after May 16, 2006 as he was selling fish. He was arrested by the police at the
prejudice of her legal heirs.
rotunda in Legazpi when he was buying medicine for his sick child. 7cralawred
CONTRARY TO LAW.3cralawred
Appellant’s wife, Teresa Magdaong-Orosco also testified to confirm that at the time of the incident
cralawlawlibrary
he was at their house while she was doing the laundry just adjacent to their house. On cross-
examination, she was asked the distance between their place and Bgy. Rawis and she replied that it
The factual scenario presented by the prosecution is based on the eyewitness account of Albert M. will take less than one hour from Bigaa to Rawis.8cralawred
Arca (Arca), the postmortem findings of Sr. Pol. Chief Insp. Dr. James Margallo Belgira who
conducted the autopsy on the cadaver of the victim, and the victim’s grandson, Ryan Francis Yap. On June 24, 2011, the trial court rendered judgment convicting appellant of the crime charged,
thus:chanRoblesvirtualLawlibrary
Arca testified that on May 16, 2006, about one o’clock in the afternoon, he went to the store of
Lourdes Yap (Yap) at Purok 4, Barangay Rawis, Legazpi City. He was buying ice but it was not yet WHEREFORE, above premises considered, the Court hereby finds accused Charlie Orosco
hardened (frozen) so he went home. At around two o’clock, he was again sent on errand to buy ice GUILTY of the crime of robbery with homicide. He is hereby sentenced to suffer the penalty
at the same store. After purchasing the ice, he noticed there was a verbal tussle between Yap and of reclusion perpetua, to pay the heirs of Lourdes Yap P75,000.00 as civil indemnity for the fact of
two male customers. The men were arguing that they were given insufficient change and insisting death, P75,000.00 as moral damages and P30,000.00 as exemplary damages.
they gave a P500 bill and not P100. When Yap opened the door, the two men entered the store. From
outside the store and thru its open window grills, he saw one of the men placed his left arm around Insofar as the other accused is concerned, the case is hereby sent to the archives, pending their
the neck of Yap and covered her mouth with his right hand while the other man was at her back eventual arrest.
restraining her hands. He recognized the man who was holding the hands of Yap as Charlie Orosco
(appellant), while he described the man who covered her mouth as thin, with less hair and dark So Ordered.9cralawlawlibrary
complexion. The latter stabbed Yap at the center of her chest. When they released her, she fell
down on the floor. Appellant then took a thick wad of bills from the base of the religious icon or Appellant went to the CA but his appeal was dismissed. The CA upheld his conviction as it found
“santo” at the altar infront of the store’s window, after which he and the man who stabbed Yap fled no compelling reason to deviate from the factual findings and conclusions of the trial court.
together with two other men outside who acted as lookouts. Arca went near the bloodied victim but
also left and went home afraid because he was seen by one of the lookouts. 4cralawred In this petition, appellant reiterates the arguments he raised before the CA that the trial court erred in
giving credit to the uncorroborated eyewitness testimony of Arca who could not point to him during
Yap was brought to the Aquinas University Hospital but she was declared dead on arrival. Later, at
the trial, and that even granting that criminal charges may be imputed against him, it should only be ATTY. BAÑARES
robbery and not the complex crime of robbery with homicide considering the fact that it was not him Your Honor, I move that the prosecutor will transfer to another question because we keep
who stabbed Yap. on waiting already.
ACP NUQUI
The appeal lacks merit. Your Honor, it is understandable that even he is slow, he keeps on glancing at the person.
COURT
It is settled that witnesses are to be weighed not numbered, such that the testimony of a single, Observations are all noted.
trustworthy and credible witness could be sufficient to convict an accused. The testimony of a sole xxxx
witness, if found convincing and credible by the trial court, is sufficient to support a finding of guilt ACP NUQUI
beyond reasonable doubt. Corroborative evidence is necessary only when there are reasons to At this point, Your Honor, I would like to make of record that when it comes to the person
warrant the suspicion that the witness falsified the truth or that his observation had been of Charlie Orosco, Your Honor, he stopped and did not say ---- he did not nod or do
inaccurate.10cralawred anything of what he has been doing when the other persons were identified.
COURT
In this case, both the trial and appellate courts found the testimony of the lone eyewitness, Arca, Okay. Noted.11
convincing notwithstanding that he was quite slow in narrating the incident to the court and that he
initially desisted from physically pointing to appellant as the one who held Yap’s hands from behind Arca continued with his testimony on how Yap was stabbed by appellant’s companion and appellant
and took her money at the store after she was stabbed by appellant’s cohort (John Doe). taking the thick wad of P1,000 bills before fleeing along with the two lookouts. When asked for the
fourth time to pinpoint appellant, Arca was still hesitant:
In his direct examination, Arca named appellant as one of those who robbed and killed Yap but
refused to pinpoint him in open court, thus:chanRoblesvirtualLawlibrary Q. Now, is this Charlie Orosco here in Court?
A. Yes, sir, he is around.
ACP NUQUI Q. This person who took the money or Charlie Orosco you said “he is in Court,” will you
xxxx please look at him.
Q. This person who was holding the hands of Lourdes Yap, were you able to identify him? xxxx
A. Yes, sir. ACP NUQUI (continuing)
Q. Do you know the name of this person? Q. Is he now in Court?
A. Yes, sir. He is Charlie. A. Yes, sir.
Q. Do you know the family name? Q. Please point at him.
A. Orosco, sir. ATTY BAÑARES
Q. If this Charlie Orosco whom you said was then holding the hands of Lourdes Yap, if he is The same observation, Your Honor.
in Court, would you please point to him? COURT
WITNESS (answering) Oh, the same observation?
A. Yes, sir. ACP NUQUI
Q. Please look around you and point at him. Yes, Your Honor, he is hesitant. It is understandable because he is afraid.
A. He is here. xxxx
Q. If he is in Court, please point at him. COURT (to the witness)
Q. Why can’t you point at him? Q. Why can you not point at Charlie Orosco who according to you he is inside the
COURT INTERPRETER Court?
At this juncture, the witness is somewhat trembling. WITNESS (answering)
ACP NUQUI A. I can’t afford to point at him.
Oh, you see. ACP NUQUI (to the witness)
ATTY. BAÑARES Q. Why?
The witness can not answer. A. I am afraid.
ACP NUQUI COURT
By the look of the witness, Your Honor, he is afraid. Perhaps…. He can not because he is afraid.12 (Emphasis supplied)
xxxx cralawlawlibrary
ACP NUQUI (continuing)
Q. Please point at him. At the next hearing, Arca was recalled to the witness stand and this time he was able to pinpoint
ATTY. BAÑARES appellant as among those persons who robbed and killed Yap, thus:chanRoblesvirtualLawlibrary
We have already foreseen the witness to pinpoint at anyone.
ACP NUQUI PROSECUTOR NUQUI
No. He said that the…. Q- You mentioned that you saw two (2) persons talking to Lourdes Yap. Who are these
ATTY. BAÑARES persons you are referring to?
Then, let him voluntarily do it. ATTY. CHAN
ACP NUQUI Your Honor please, we are again registering our objection.
Okay. COURT
 Witness may answer.
WITNESS
A- Charlie Orosco and a certain thin person.
PROSECUTOR NUQUI
Q- Why are you able to say that Charlie Orosco was one of the persons talking, how long
have you known Charlie Orosco?
A- He always go with a fisherman and act as helper and because of that I know him.
xxxx
PROSECUTOR NUQUI
Q- You mentioned that you have long known Charlie Orosco. Will you look around and
point to him if he is in Court?
INTERPRETER
At this juncture, the witness is pointing to a man wearing a yellow T-shirt with
handcuff and when asked answered by the name of Charlie Orosco.
PROSECUTOR NUQUI
No further questions Your Honor.13
cralawlawlibrary
Assessing the identification made by Arca, the trial court concluded that he had positively identified
appellant as one of the perpetrators of the robbery and killing of
Yap, viz:chanRoblesvirtualLawlibrary
Here, Albert Arca, the prosecution’s main witness, positively identified accused Orosco as one of
[the] two men who robbed and killed Lourdes Yap on that fateful day. As observed by the trial court
during the bail hearings, when asked to identify one of the men who robbed and killed the victim,
Arca was trembling and constantly looking towards the direction of accused Orosco. Though simple-
minded, Arca was well-aware of the possible consequences his testimony could trigger. To the
Court’s mind, Arca’s act of constantly looking towards Orosco’s direction whenever he was asked to
point out one of the culprits, is a mute but eloquent manner of identifying Orosco as one of the
perpetrators of the crime. As such, Arca’s act is sufficient identification already.
Later, when Arca was recalled to the stand to answer some additional questions, he was able to
gather enough courage to point out to Orosco as the man who held the hands of Lourdes Yap while
his companion stabbed her. Arca stated that he was hesitant to identify and point out accused earlier
because he feared what Orosco might do to him. Incidentally, both Orosco and his wife stated that
they do know neither Albert Arca nor Lourdes Yap. Thus, it appears that there is no reason
whatsoever for Arca to lie and attribute the crime to Orosco. Following settled jurisprudence, Arca’s
positive identification of Orosco prevails over the latter’s alibi. 14cralawlawlibrary
We find no compelling or cogent reason to deviate from the findings of the trial court on its
evaluation of Arca’s testimony. The well-settled rule in this jurisdiction is that the trial court’s
findings on the credibility of witnesses are entitled to the highest degree of respect and will not be
disturbed on appeal without any clear showing that it overlooked, misunderstood or misapplied some
facts or circumstances of weight or substance which could affect the result of the case. 15cralawred
Appellant repeatedly harped on the hesitation of Arca to point to him at the trial. However, as the
trial court’s firsthand observation of said witness’ deportment revealed, Arca’s fear of appellant
sufficiently explains his initial refusal to point to him in open court during his direct examination.
Arca was finally able to point to appellant as one of the perpetrators of the robbery and killing of
Yap during his additional direct examination when he had apparently mustered enough courage to do
so.
Robbery with homicide is defined under Article 294 of the Revised Penal Code, as amended, which
provides in part:chanRoblesvirtualLawlibrary
Art. 294. Robbery with violence against or intimidation of persons – Penalties. – Any person guilty
of robbery with the use of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the
crime of homicide shall have been committed, or when the robbery shall have been accompanied by
rape or intentional mutilation or arson.cralawlawlibrary
The elements of the crime of robbery with homicide are: (1) the taking of personal property is
committed with violence or intimidation against persons; (2) the property taken belongs to another;
(3) the taking is done with animo lucrandi; and (4) by reason of the robbery or on the occasion
thereof, homicide (used in its generic sense) is committed.16 Homicide is said to have been
committed by reason or on the occasion of robbery if it is committed (a) to facilitate the robbery or
the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or (d) to eliminate witnesses to the commission of the
crime.17 In robbery with homicide, the original criminal design of the malefactor is to commit
robbery, with homicide perpetrated on the occasion or by reason of the robbery. The intent to
commit robbery must precede the taking of human life. The homicide may take place before, during
or after the robbery.18cralawred
Here, the homicide was committed by reason of or on the occasion of the robbery as appellant and
John Doe had to kill Yap to accomplish their main objective of stealing her money. The earlier
verbal tussle where the two pretended to have paid a greater amount and asked for the correct change
was just a ploy to get inside the store where the victim kept her earnings. To verify whether the cash
payment was indeed a P500 or P100 bill, the victim let them enter the store but once inside they got
hold of her and stabbed her. Appellant, however, argues that if he had committed any offense, it was
only robbery since Arca testified that it was John Doe, whom he described as a thin man, who
stabbed the victim.
We disagree.
The evidence presented by the prosecution clearly showed that appellant acted in conspiracy with his
co-accused. Appellant and John Doe first engaged the unsuspecting victim in a verbal altercation
until she allowed them to enter the store. Upon getting inside, they held the victim with John Doe
wrapping his arm around her neck while appellant held her hands at the back. With the victim
pressed between the two of them, John Doe stabbed her once in her chest before releasing her. Once
she fell down, appellant quickly took the money placed at the altar inside the store and fled together
with John Doe and the two lookouts outside the store. All the foregoing indicate the presence of
conspiracy between appellant and his co-accused in the perpetration of robbery and killing of the
victim.
It must be stressed that appellant played a crucial role in the killing of the victim to facilitate the
robbery. He was behind the victim holding her hands while John Doe grabbed her at the neck. His
act contributed in rendering the victim without any means of defending herself when John Doe
stabbed her frontally in the chest. Having acted in conspiracy with his co-accused, appellant is
equally liable for the killing of Yap.
As we held in People v. Baron19cralawred
The concerted manner in which the appellant and his companions perpetrated the crime showed
beyond reasonable doubt the presence of conspiracy. When a homicide takes place by reason of or
on the occasion of the robbery, all those who took part shall be guilty of the special complex
crime of robbery with homicide whether they actually participated in the killing, unless there
is proof that there was an endeavor to prevent the killing. There was no evidence adduced in this
case that the appellant attempted to prevent the killing. Thus, regardless of the acts individually
performed by the appellant and his co-accused, and applying the basic principle in conspiracy that
the “act of one is the act of all,” the appellant is guilty as a co-conspirator. As a result, the criminal
liabilities of the appellant and his co-accused are one and the same. (Emphasis
supplied)cralawlawlibrary
In sum, the CA did not err in affirming the conviction of appellant for robbery with
homicide. Appellant was positively identified by prosecution eyewitness Arca as among those who
perpetrated the robbery and killing of Yap at the latter’s store on May 16, 2006 in Bgy. Rawis,
Legazpi City. This positive identification prevails over accused’s defense of alibi. As pointed out by
the trial court, it was not physically impossible for appellant to be at the scene of the crime
considering the presence of many public conveyances which would drastically cut the one hour walk
from Bigaa to Rawis to only a “couple of minutes.”20cralawred
On the award of damages, the trial court was correct in sentencing appellant to suffer the penalty
ofreclusion perpetua and ordering him to pay P75,000.00 as civil indemnity for the fact of death and
P75,000.00 as moral damages, conformably with prevailing jurisprudence. 21 We also find the award
of exemplary damages in the amount of P30,000.00 proper due to the presence of the aggravating
circumstances of treachery and abuse of superior strength, though these were not alleged in the
information. While an aggravating circumstance not specifically alleged in the information (albeit
established at trial) cannot be appreciated to increase the criminal liability of the accused, the
established presence of one or two aggravating circumstances of any kind or nature entitles the
offended party to exemplary damages under Article 2230 of the Civil Code because the requirement
of specificity in the information affected only the criminal liability of the accused, not his civil
liability.22cralawred
The aforesaid sums shall earn the legal interest at the rate of six percent (6%) per annum from the
finality of judgment until full payment.
WHEREFORE, the appeal is DISMISSED. The Decision dated March 22, 2013 of the Court of
Appeals in CA-G.R. CR-HC No. 05171 affirming the Decision dated June 24, 2011 of the Regional
Trial Court of Legazpi City, Branch 10 in Criminal Case No. 10916 is AFFIRMED. The sums
awarded as civil indemnity (P75,000.00), moral damages (P75,000.00) and exemplary damages
(P30,000.00) shall earn legal interest at the rate of 6% per annum from the finality of judgment until
full payment.
With costs against the accused-appellant.
SO ORDERED.
[G.R. No. 133226. March 16, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOCSIN FABON @
"Loklok," accused-appellant.
DECISION
PER CURIAM:
Circumstantial evidence coupled with accused-appellant's flight from the town where the crime as
committed sealed his fate and merited his conviction of a heinous crime and the corresponding
imposition of the supreme penalty of death. h Y
In an information filed before the Regional Trial Court of Hilongos, Leyte, docketed as Criminal
Case No. H-642, accused-appellant Locsin Fabon, alias "Loklok." was charged with the crime of
robbery with homicide accompanied by rape and intentional mutilation. [1] The information reads:
That on or about the 23rd day of April 1995, in the Municipality of Hilongos,
Province of Leyte, Philippines and within the jurisdiction of this Honorable
Court, said accused at the house of the victim did then and there, willfully,
unlawfully and feloniously with intent to gain by means of force and violence
against one BONIFACIA LASQUITE, take and carry away, sum of money
consisting of bills of assorted denominations and coins amounting to TWENTY
FIVE THOUSAND PESOS (P25,000.00) more or less, Philippine Currency,
and by reason or on occasion of the robbery the same accused attack (sic) and
take (sic) the life of the victim with the use of [a] bladed weapon, thus
wounding:
1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with a
depressed skull fracture;
2. Stabbed (sic) wound (punctured-like) at the (R) side of the epigastic area;
3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L)
parasternal line;
4. Depressed fracture (L) parieto-occipital area;
5. Hematoma formation, lower jaw and at the base of the neck;
6. Multiple hematoma formation at the epigastic area, RUQ and anterior chest
wall; which clearly evince the manifest and intentional mutilation of victim's
person or corspe (sic); and likewise on the same occasion of the robbery, rape
has (sic) been committed by the same accused on the person of the victim,
BONIFACIA LASQUITE, as shown by the autopsy report, thus:
7. Hematoma formation noted on both sides of vaginal canal and near urethral
opening;
8. Hematoma formation (L) hand, dorsal aspect of metacarpo-phalangeal joint;
9. Tonge (sic) half bitten and directed to the right side.
ACTS CONTRARY TO LAW.[2]
Upon being arraigned on 26 September 1995, accused-appellant, assisted by counsel de oficio, Atty.
Mario Alonzo of the Public Attorney's Office, pleaded "not guilty" to the offense charged. [3]
The prosecution presented Benjamin Milano, the nine (9) year old nephew and neighbor of the
accused-appellant, as its first witness. He testified that on 23 April 1995, at around five o'clock in the
morning, he was awakened by his mother to fetch water for their morning meal.[4] Bringing along a
container, he then proceeded to the water pump of Bonifacia Lasquite, located at the back of the
latter's house.[5] After filling up his container, he then went on his way home.[6] However, while still
near the house of Bonifacia Lasquite, he noticed that someone was coming from the fence of
Bonifacia Lasquite's house.[7] Although it was still a little dark,[8] he recognized it to be his uncle,
accused-appellant.[9] While standing only five (5) meters away,[10] accused-appellant asked him:
"Toy, is there somebody fetching water?"[11] He responded in the negative. He noticed that the
forehead, t-shirt and hair of accused-appellant were stained with blood.[12] He also noticed that
accused-appellant was carrying a plastic bag[13] and had a bolo tucked in his pants.[14] Accused-
appellant then walked away in a hurried manner while repeatedly looking over his
shoulders.[15] Later on in the day, he was informed by a certain Emma about the death of their
neighbor, Bonifacia Lasquite.[16] Because of this, he informed Roberto Lasquite, the son of Bonifacia
Lasquite, of his encounter with accused-appellant in the early morning of the ill-fated day.[17]
The second witness presented by the prosecution was Mario Vinculado. He testified that he has been
a resident of Brgy. Santa Cruz, Hilongos, Leyte, since his birth and, as such, he knows both accused-
appellant and the victim.[18] Sometime in the second week of August of 1995, he went to Ampayon,
Butuan City together with a police officer named Lumayno from the Hilongos Police Station. [19] He
went to the said town because he was requested by Roberto Lasquite to accompany police officer
Lumayno in ascertaining whether accused-appellant was indeed in Ampayon pursuant to an
information sent by the Butuan Police Station to the Hilongos Police Station. [20] When they arrived
in Ampayon, they went to the municipal jail where they found accused-appellant being investigated
by the police.[21] After the investigation, accused-appellant asked Mario Vinculado if they could have
a talk.[22] During their conversation, accused-appellant informed Mario Vinculado that he had a
companion when he assaulted Bonifacia Lasquite[23] and that he was only able to stab the victim
twice in the breast.[24] Upon Mario Vinculado's return to his hometown, he informed the Hilongos
police and Roberto Lasquite of the admission made to him by accused-appellant. Jksm
The prosecution then presented Dr. Conrado Abiera as its expert witness. He testified that on 23
April 1995, he conducted an autopsy on the victim and, correspondingly, accomplished a gross
autopsy report.[25] The gross autopsy report reads: Chief
Name: BONIFACIA FABON LASQUITE Age: 64 years old
Address: Brgy. Sta. Cruz, Hilongos, Leyte Sex: Female
Civil Status:
Widow
Occupation: Housekeeper
Requesting Officer: Jaime S. Yamba
Sr. Insp. PNP
Acting Chief of Police
Date & Time of Autopsy: April 23, 1995 at 2:10 p.m.
Place of Autopsy: Brgy. Sta. Cruz, Hilongos, Leyte
General Survey: Fairly build (sic), fairly nourished, fairly developed, whole
body covered with with (sic) blanket, when removed the face is (sic) covered
with moist, torned (sic) cloth the upper half of the body covered with cloth and
lower half naked, in the state of cadaveric spasm with hematoma formation on
the jaw and base of the neck, lacerated wound on the forehead, stabbed (sic)
wound on the anterior chest wall and multiple hematoma formation on the
anterior chest wall.
Pertinent Findings:
1. Lacerated wound on (R) side of the forehead about 0.5 cm. x 0.2 cm. with a
depressed skull fracture.
2. Stabbed (sic) wound (punctured-like) at the (R) side of epigastric area.
3. Stabbed (sic) wound (punctured-like) at the 3rd intercostal space (L)
parasternal line.
4. Depressed fracture (L) parieto-occipital area.
5. Hematoma formation, lower jaw and at the base of the neck.
6. Multiple hematoma formation at the epigastric area, RUQ and anterior chest
wall.
7. Hematoma formation noted on both sides of vaginal canal and near the
urethral opening.
8. Hematoma formation (L) hand, dorsal aspect of metacarpo-phalangeal joint.
9. Tongue half-bitten and directed to the right side.
Cause of Death: Internal Hemorrhage due to stabbed (sic) wound at the heart
and liver area.
Suffocation secondary to strangulation.
(signed)
DR. CONRADO B. ABIERA III
Medical Officer III[26]
During his testimony, Dr. Abiera clarified the statements he made in the gross autopsy report. He
stated that lacerated wound in the victim's forehead and the depressed skull fracture, reported as the
first item under the heading Pertinent Findings, signified that the victim was hit with a blunt
instrument which could have been a stone, a piece of wood or the back portion of a bolo. [27] He
added that the same blunt instrument may have also been used in the depressed fracture in the
parieto-occipital area.[28] Dr. Abiera also explained that the punctured-like stab wounds, reported as
the second and third items under the heading Pertinent Findings, meant that the assailant used an
instrument similarly shaped as an ice pick or a sharpened welding rod.[29] With regard to the
hematoma formation at the lower jaw and at the base of the neck, reported as the fifth item above,
this signifies that the victim was strangled.[30] Dr. Abiera added that the strangulation of the victim
caused her to struggle for air and, in the process, she probably bit her tongue which, thus, accounts
for the finding in the ninth item above.[31] He concluded that this strangulation could not have been
caused by a wire or a rope since these instruments would have left marks in the neck of the victim.
In his expert opinion, Dr. Abiera deduced that the victim was strangled through the use of a
handkerchief or some other piece of cloth.[32] With regard to the hematoma formation in the vaginal
canal and near the urethral opening, the seventh item above, he explained that this could mean that
the victim was raped.[33] However, he clarified that he cannot assert such conclusion with certainty
because he did not examine if there were sperm cells in the victim's vagina since the autopsy was
conducted in a barrio where there was no laboratory.[34] Looking at the gross autopsy report in its
entirety, Dr. Abiera concluded that the assault on the victim could have been done by more than one
assailant considering that three devices were used in attacking the victim, i.e., a blunt object, an ice-
pick like tool and a cloth-like instrument. On the aspect of mutilation, Dr. Abiera stated that no vital
part of the victim's body was severed which, thus, negates mutilation. [35]
The fourth and final witness for the prosecution was the son of the victim, Roberto Lasquite. He
testified that on 22 April 1995, he went with a friend to Sitio Panas, Brgy. Bilibol, Southern Leyte,
to attend a fiesta.[36] He stayed in the said place until the following day. On 23 April 1995, at around
ten o'clock in the morning, a certain Costan Taping informed him that his mother was dead. [37] He
immediately went home together with Costan Taping and his fiancee and arrived at their house at
noon of the same day.[38] He found his mother lying dead on the kitchen floor with their things
scattered.[39] When he searched for the shell where they kept their money, it was no longer in its
hiding place in their cabinet.[40] Inside the missing shell was the Twenty Five Thousand Pesos
(P25,000.00) that was sent to them by the victim's sister who lives in Denmark.[41] Later on in the
day, Benjamin Milano informed him of his encounter with accused-appellant while he was fetching
water.[42] Because of this, he and the barangay tanods looked for accused-appellant.[43] They searched
for accused-appellant for more than a month but could not find him.[44] He only learned about the
whereabouts of his mother's assailant when he was informed by police officer Lumayno that
accused-appellant had been arrested in Butuan City.[45] Roberto Lasquite then went to their
councilor, Mario Vinculado, to request the latter to go to Butuan City and confirm if accused-
appellant indeed killed his mother. Esm
In his defense, accused-appellant took the witness stand and denied the accusations against him. He
testified that he was registered as a resident of Brgy. Bliss but he actually resides in the house of his
brother in Brgy. Sta. Cruz,[46] which is around 380 meters away from the house of Bonifacia
Lasquite, her aunt.[47] He stated that in the morning of 22 April 1999, he was with his live-in partner,
Prima Naul, washing clothes since they were preparing to leave for Butuan City the following
day[48] in order to look for her live-in partner's long lost father.[49] At noon of the same day, he and
Prima Naul went to his mother's house to have lunch.[50] They left his mother's house at around one
oclock in the afternoon and returned to their house.[51] He turned in for bed at around nine o'clock in
the evening and woke up at 5:30 a.m. the following day, 23 April 1995. [52] He then prepared their
provisions for their Butuan trip and finished at around 8:00 a.m. [53] Thereafter, he went to the house
of the Brgy. Captain of Brgy. Bliss to get a residence certificate.[54] He was informed by the Brgy.
Captain that he can get his residence certificate from the Brgy. Secretary, Mrs. Lumayno.[55] He went
to the house of Mrs. Lumayno and was able to get a residence certificate. [56] He and his live-in
partner then proceeded to Butuan City and arrived thereat in the morning of the following
day.[57] During their stay in Butuan City, they were unable to locate her live-in partner's father. When
inquired upon with regard to the testimony of Benjamin Milano, accused-appellant denied that he
saw the child in the morning of 23 April 1995. On cross-examination, accused-appellant testified
that he does not know of any reason why Benjamin Milano testified the way he did. [58] He also
admitted having seen Mario Vinculado in the police station while he was incarcerated and being
investigated in Butuan City on account of another charge for robbery. [59] Despite his having seen
Mario Vinculado, he denies having spoken with the latter and that he admitted to killing the
victim.[60] He reasoned that he was unable to speak with Mario Vinculado since he was being
investigated by the police.[61] He also stated that when he left for Butuan City, he was not aware that
Bonifacia Lasquite was dead.[62] He, however, admitted that while he was in Butuan City, he was
informed by a certain Citas about the killing of the victim and that he was being made responsible
for the same.[63] Nevertheless, despite learning of this matter, he admitted not having exerted any
effort to inform Roberto Lasquite of his innocence and justified his complacency with the excuse
that he had differences with Roberto Lasquite.[64] Their differences arose sometime in 1992 when he
was accused by Roberto Lasquite of having stabbed the latter's carabao. [65] Accused-appellant also
admitted having escaped from prison during the pendency of the present case before the lower
court.[66] He was, however, recaptured by prison guards for which he suffered a gunshot
wound.[67] When asked why he escaped, accused-appellant reasoned that his decision to escape was
due to the fact that he was denied his conjugal visits by prison authorities since Prima Naul was only
his live-in partner.[68]
The second and last witness presented by the defense was Remedios Lumayno, the secretary of the
barangay who issued accused-appellant's residence certificate.[69] She corroborated the testimony of
accused-appellant that the latter obtained a residence certificate from her on 23 April 1995 at around
eight o'clock in the morning.[70] She also stated that when accused-appellant secured his residence
certificate, the latter explained to her that he was going to use it for his trip to Marangog where he
will harvest coconut.[71]
In its Decision, dated 15 December 1997, the lower court convicted accused-appellant of the crime
of robbery with homicide and rape aggravated by dwelling. The pertinent portion of the decision
reads: Esmsc
There having been sufficient and convincing evidence by the prosecution, the
court finds and so holds the accused liable for robbery with homicide and rape
as charged. Robbery with Homicide is defined and penalized under Article 294,
number 1 of the Revised Penal Code, as amended by R.A. 7659 with the
penalty of Reclusion Perpetua to Death, when by reason or on occasion of the
robbery, the crime of Homicide shall have been committed or when the robbery
shall have been accompanied by rape or intentional mutilation or arson. The
homicide committed by the accused on the occasion of the robbery of victim
Bonifacia Lasquite was perpetrated inside her home. Consequently, the
aggravating circumstance of dwelling should be appreciated to maximize the
penalty.
WHEREFORE, premises considered, the Court finds the accused LOCSIN
FABON, alias "Loklok" GUILTY beyond reasonable doubt of the crime of
Robbery with Homicide and Rape, penalized under Article 294, number 1 of
the Revised Penal Code, as amended by R.A. 7659 and there being aggravating
and no mitigating circumstance hereby SENTENCES him to suffer the
maximum penalty of DEATH.
In addition, the accused is ordered to pay the heirs of the victim Bonifacia
Lasquite the following sums: Esmmis
a. P50,000.00 as indemnity for Bonifacia lasquite's death;
b. To pay the sum of P25,000.00 by way of reparation of the stolen cash
money.
Cost taxed against the accused.
SO ORDERED.[72]
The case is now before us on automatic review pursuant to Section 10 of Rule 122.
Parenthetically, we note that the trial court inaccurately designated the crime committed as "robbery
with homicide and rape."[73] When the special complex crime of robbery with homicide is
accompanied by another offense like rape or intentional mutilation, such additional offense is treated
as an aggravating circumstance which would result in the imposition of the maximum penalty of
death.[74] In the case of People vs. Lascuna,[75] we said: Esmso
We agree with the Solicitor General's observation that the crime committed was
erroneously designated as robbery with homicide, rape and physical injuries.
The proper designation is robbery with homicide aggravated by rape. When
rape and homicide co-exist in the commission of robbery, it is the first
paragraph of Article 294 of the Revised Penal Code which applies, the rape to
be considered as an aggravating circumstance. xxx[76]
We now come to the merits of the case. Msesm
The core issue the instant case is whether the circumstantial evidence on record forms an unbroken
chain which leads to the conclusion that accused-appellant committed the crime for which he is
being made accountable for, to the exclusion of all others. Circumstantial evidence is defined as that
which indirectly proves a fact in issue.[77] Under Section 4 of Rule 133 of the Revised Rules on
Evidence, circumstantial evidence is sufficient to convict an accused if the following requisites
concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived
are proven; and (c) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.
The peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from
scrutinizing just one particular piece of evidence. It is more like a puzzle which, when put together,
reveals a convincing picture pointing towards the conclusion that the accused is the author of the
crime. Exsm
In the case at bar, the circumstantial evidence presented by the prosecution clearly establishes the
guilt of accused-appellant and overpowers his defense of denial and alibi. Aside from the fact that
denial and alibi are inherently weak defenses, accused-appellant's alibi of being in his house at 5:30
in the morning does not preclude his physical presence in the house of the victim considering that
their respective residences are only 380 meters apart. Moreover, the proven circumstances in the
instant case, when viewed in their entirety, are as convincing as direct evidence and, as such, negate
the innocence of accused-appellant, to wit: (1) accused-appellant was present at the scene of the
crime; (2) he had blood stains on his body and clothes, had a bolo tucked in his waist and was
carrying a plastic bag when he was seen leaving the scene of the crime; (3) he left Brgy. Sta. Cruz
for Butuan City on the same day when the victim was killed; (4) he admitted to Mario Vinculado
that he kill the victim; (5) he did not even bother to inform Roberto Lasquite of his alleged
innocence despite having learned that he was being made accountable for the death of Bonifacia
Lasquite; (6) he could not think of any reason as to why Benjamin Milano, his nephew, would lie in
testifying against him; and (7) he escaped from incarceration during the pendency of this case before
the lower court. Clearly, the foregoing evidence is consistent with the culpability of the accused and
inconsistent with his defense of denial and alibi. Not the least worthy of notice is the fact that
accused-appellant twice sought to escape liability: first, on the day that the victim was killed and
second, while he was incarcerated in prison. As has often been repeated, flight is a strong indication
of guilt.[78] The reasons put forward by accused-appellant to justify the two instances when he
fled, i.e., first, to look for his live-in partner's long lost father and second, because he was denied
conjugal visits, are simply too lame and whimsical to merit credibility. Moreover, if the purpose of
his trip to Butuan City was to look for his live-in partner's father, why did he not return immediately
to Brgy. Sta. Cruz after he and his live-in partner failed to locate the whereabouts of the said father?
The only logical reason would be that he was avoiding something in Brgy. Sta. Cruz. However,
despite his efforts to escape from the long arm of the law, it still caught up with him in Butuan
City. Kyle
In the appreciation of evidence in criminal cases, it is a basic tenet that the prosecution has the
burden of proof in establishing the guilt of the accused for all the offenses he is charged with- ei
incumbit probatio non qui negat.[79] The conviction of accused-appellant must rest not on the
weakness of his defense but on the strength of the prosecution's evidence. In the present case, it is
the opinion of the Court that although the prosecution has sufficiently established accused-
appellant's guilt for the crime of robbery with homicide, it has, however, failed to substantiate the
alleged aggravating circumstances of rape and intentional mutilation. As testified upon by the
prosecution's expert witness, Dr. Abiera, it cannot be conclusively stated that the victim was raped.
Due to the fact that the entirety of the evidence presented in this case are all circumstantial, the fact
that the victim was no longer wearing her underwear when her cadaver was discovered and that the
victim had hematoma formations on both sides of vaginal canal and near the urethral opening cannot
conclusively prove that she was raped. Moreover, the aggravating circumstance of intentional
mutilation cannot also be appreciated since, as also testified upon by Dr. Abiera, no vital body part
was severed. Likewise, the fact that the victim's tongue was half-bitten does not prove intentional
mutilation since it could have been caused by the victim herself when she was fighting to breathe for
air while she was being strangled by accused-appellant. Kycalr
However, despite our finding that accused-appellant cannot be made liable for the aggravating
circumstances of rape and intentional mutilation, a finding which would have lowered the penalty in
the instant case to reclusion perpetua, accused-appellant will still have to suffer the supreme penalty
of death due to the attendance of the aggravating circumstance of dwelling[80] which was alleged in
the information and duly proven during the trial. Dwelling is considered aggravating primarily
because of the sanctity of privacy that the law accords to the human abode. [81] In People vs.
Cabato,[82] we ruled that: "Dwelling is aggravating in robbery with violence or intimidation because
this class of robbery can be committed without the necessity of trespassing the sanctity of the
offended party's house."[83]
The penalty for robbery with homicide is reclusion perpetua to death which is composed of two (2)
indivisible penalties. Applying Article 63 of the Revised Penal Code, the imposable penalty in the
present case is death due to the presence of the aggravating circumstance of dwelling and the
absence of any mitigating circumstance.
Although four Justices continue to maintain that Republic Act No. 7659, insofar as it imposes the
death penalty, is unconstitutional, they nevertheless submit to the ruling of the majority that the law
is constitutional and that the death penalty should accordingly be imposed. Calrky
IN VIEW OF THE FOREGOING, the Court finds the accused Locsin Fabon, alias "Loklok,"
guilty beyond reasonable doubt of the crime of "robbery with homicide" under Article 294 (1) of the
Revised Penal Code, as amended by Republic Act No. 7659,[84] with the aggravating circumstance of
dwelling, and hereby sentences the said accused to suffer the supreme penalty of death, to indemnify
the heirs of Bonifacia Lasquite in the amount of Fifty Thousand Pesos (P50,000.00) and to pay
Twenty Five Thousand Pesos (P25,000.00) as actual damages for the stolen money.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal
Code, upon finality of this decision, let copies of the records of this case be forthwith forwarded to
the Office of the President of the Philippines for possible exercise of clemency or pardoning
power. Mesm
SO ORDERED.
[G.R. No. 136394. February 15, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON NAAG y LOBAS, accused-
appellant.
DECISION
PUNO, J.:
One of the more interesting conceptual exercises in the field of Criminal Law is the
characterization of a crime. The challenge is not only to prove existence of its elements. The
challenge is to correctly categorize it. In the case at bar, a man sexually defiled then immediately
divested his woman-victim of her belongings. Is he guilty of the special complex crime of
Robbery with Rape or the separate crimes of Robbery and Rape? The answer lies in his intent.
The accused in this case is a certain Herson Naag y Lobas. He was indicted for Robbery with
Rape under an Information which reads:
That on or about the 8th day of January, 1996 at Daraga, Albay x x x the above named accused,
armed with a screw driver, by means of violence and intimidation, did then and there willfully,
unlawfully and feloniously, have carnal knowledge of the complainant Desiree Gollena, against her
will, by inflicting upon her with the use of said screw multiple serious physical injuries, and
thereafter said accused, having been fully satisfied of his carnal lust over said Desiree Gollena and
believing her to be dead, with intent of gain, divested and took her personal belongings, to wit: (1)
one bag containing clothes worth P500.00 (2) one gold bracelet worth P1,500.00 (3) wallet
containing P1,800.00 and (4) ladies wristwatch valued at P600.00 to the damage and prejudice of
said Desiree Gollena.
ACTS CONTRARY TO LAW.[1]
He pleaded not guilty during arraignment and the action proceeded to trial.
The evidence for the prosecution shows that Desiree was a singer in a band which regularly
plays at the Gloss and Glitters Disco located in Tabaco, Albay. On the morning of January 8, 1996,
she went home to Sipi, Daraga, Albay, to visit her family. She took the bus and by about 4 oclock in
the morning, she alighted at the towns Freedom Park in Daraga. She crossed a street where two
tricycles were parked. She woke up one of the drivers and inquired whether she could be brought to
Sipi. Getting a positive response, she boarded it. Upon reaching her place, she told him to stop and
handed to him her fare.To her surprise, what she received in return was not loose change, but a slap.
The driver then began to maul her. Desiree fought back as hard as she could, but this made the
driver more ferocious in his assault. She was strangled, boxed and kicked. She was repeatedly
stabbed with a screw driver on her face, head, and different parts of her body. Her head was banged
against the sidecar. She realized that her struggle was in vain and would only put her life in greater
danger. She stopped resisting and pretended to be dead.
He then transported her to another place. He lifted her from the tricycle and she thought she
would be thrown to a ravine or cliff beside what appeared to be an abandoned house. Instead, she
was tossed to the ground. The driver removed her pants and panties. She could not resist, fearing
death. After her garments were removed, her legs were spread apart and he copulated with her.
After satisfying his lust, the driver took her wristwatch worth P600.00, a bracelet
worth P1,500.00 and fled with her bag containing her clothes, wallet containing P1,800.00 in cash,
and some loose change. When Desiree sensed that he has left the premises, she rolled down the
ravine. She did not have the energy to stand and walk and so she crawled until she reached a house,
which turned out to be the dwelling place of witness Engineer Antonio Balacano located at Sybil
Subdivision, Sipi, Daraga. She cried for help.
Engr. Balacano responded to Desirees call for assistance. He saw Desiree, a bloodied girl, cold
and torn, squatting by the gate with her pants down and hanging on one leg. It was already 5 oclock
in the morning. The wife of the engineer telephoned local police authorities for assistance. In the
meantime, Desiree was brought to the Albay Provincial Hospital where she was given medical
treatment. Dr. Jose Solano testified that the girl was in pain when he examined her and that she
sustained multiple lacerations and stab wounds on different parts of her body, and had blackening of
her left and right eyes. Dr. Aileen Francis Bartilet examined Desirees genitalia and noted the absence
of any sign of injury: there was no bleeding, no laceration of the hymen, no contusion in the vulvar
wall of the vagina, and no abrasion.
Later that morning of January 8, 1996, policemen came to the hospital to investigate the
incident. Desiree gave a description of the suspect as well as the tricycle. The next day, on January 9,
SPO1 Pastor Perena Jr. and SPO2 Domingo Mabini happened to apprehend one Herson Naag y
Lobas, a tricycle driver, for driving a public utility tricycle without the necessary license. Naag and
the vehicle were brought to the police station of Daraga. Perena and Mabini realized that Naag fit the
description of the malefactor given by Desiree. They brought the confiscated student drivers permit
of Naag (which contains his photograph) to the hospital for identification. Their hunch was
confirmed when Desiree, upon being shown the permit, identified the man in the picture as the one
who raped and robbed her.
When the policemen returned to the station, Naag was already gone, but not without leaving
his tricycle behind. They brought the tricycle to the hospital for identification. Desiree did not have
any difficulty in identifying the tricycle as the same vehicle she boarded on the morning of January
8. A criminal complaint was then filed against Naag. On February 25, 1996, he was arrested by the
NBI agents of Naga City at Tagkawayan, Quezon.
The accused alleged, in his defense, that it was impossible for him to be the author of the
crime at bar. He claimed that at the time and date of the incident, he was sleeping in their house
approximately seven kilometers away from where it happened. His tricycle was not in a serviceable
condition then, and he was repairing it the night before. It was fixed only on January 9 since he was
able to buy the spare part that he needed at about 8:30 a.m. of January 8. The previous day was a
Sunday and almost all of the motor shops were closed. Hence, he alleged that he could not have
operated on the Sipi route on the 8th as his tricycle was not in running condition. He explained that
he was in Tagkawayan when he was arrested because he had undergone hospitalization and was on
an errand.
The defense also called two other witnesses to the stand who backstopped the testimony of the
accused. It presented his wife who basically reiterated the story of her husband. She said that he was
with her from the night of January 7 up to the morning of January 8, at about 8:30, when he had to
buy the spare part that he needed for his tricycle. Similarly, it presented a certain Lino Era, a next-
door neighbor who recalled seeing the accused at about 10 oclock in the evening of January 7 doing
some repairs on his tricycle.
In the end, the trial court chose not to believe Naag. It held:
The accused in his defense put up alibi, a shabby excuse, a defense indicties never seem to tire of.
(People vs. Bracamonte, 257 SCRA 380) This defense of the accused cannot prevail over the
positive identification by the victim Desiree of the accused and of the tricycle. This defense of alibi
is worthless in the face of his being positively identified by the victim Desiree. (People vs. Rivera,
242 SCRA 26)[2]
However, the trial court did not convict him of the crime he was originally charged with, which is
Robbery with Rape. Instead he was meted out two different sentences for the separate crimes of
Robbery and Rape, viz:
WHEREFORE, premises considered, the accused Herson Naag y Lobas is hereby found GUILTY
beyond reasonable doubt of the crime of Rape under Art. 335 (1) of the Revised Penal Code as
amended, and he is hereby sentenced to suffer the penalty of imprisonment of Reclusion Perpetua
with all the accessory penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as
Indemnity and P50,000.00 as moral damages.
The accused Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of the separate
crime of Robbery under Art. 294 (4) of the Revised Penal Code, and taking into consideration the
Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of imprisonment of ten (10)
years of Prision mayor medium in its maximum period as the minimum to fourteen (14) years, ten
months and twenty (20) days of Reclusion Temporal medium period in its medium period as the
maximum and to return the ladies wrist watch worth P600.00, bracelet worth P1,500.00, bag of
clothes worth P500.00 or their total value of P2,600.00 if return cannot be had and the cash
of P1,800.00. Costs against the accused.
SO ORDERED.[3]
Dissatisfied with the verdict, the accused interposed this appeal. In his brief, he made this lone
assignment of error: The Lower Court erred in finding the accused guilty of the separate crimes of
Robbery and Rape.[4]
We affirm the conviction.
There is no cogent reason to disturb the findings of the lower court. Well-entrenched is the
rule that an appellate court will generally not disturb the assessment of the trial court on factual
matters considering that the latter, as a trier of fact, is in a better position to appreciate the same. The
only exceptions allowed are when the trial court has plainly overlooked certain facts of substance
which, if considered, may affect the result of the case, or in instances where the evidence fails to
support or substantiate the lower courts findings and conclusions, or where the disputed decision is
based on a misapprehension of facts.[5] This case does not fall under any of the exceptions. Hence,
there is no reason for us to modify the factual findings of the lower court.
Even then, the appellant raises two points in support of his assignment of error designed to
sow in our minds seeds of doubt. The first relates to the medical evidence on record while the second
deals with his identity.
The appellant capitalizes, firstly, on Dr. Bartilets testimony on the absence of fresh injury on
the private part of the offended party although she was examined almost immediately after the
assault.According to him, the findings of said medical expert negate the charge of rape. On the other
hand, the prosecution contends that the lack of injury and the healed laceration could be attributed to
the sexual intercourse she had with her boyfriend.
The appellants argument fails to impress. It is to be noted that Dr. Bartilet herself explained
that her findings did not eliminate the possibility of sexual intercourse. She opined that it must have
been done only outside the vagina but within the external vulva by merely pushing and giving some
force to it.[6] She added that the appellant could have ejaculated and discharged semen on the
external genitalia even without penetrating into the vagina.
 In rape cases, what is material is that there is penetration of the female organ no matter how
slight.[7]7 In a long line of decisions, we have ruled that the only essential point is to prove the
entrance or at least the introduction of the male organ into the labia of the pudendum. [8] Hence, the
moment the accuseds penis knocks at the door of the pudenda it suffices to constitute the crime of
rape.[9]
The appellant next assails the identification made by Desiree. He contends that it was still dark
at the time of the incident. He argues that when people board a tricycle, they do not usually focus
their attention on the driver. He states that the identity of the driver could be the least of Desirees
concern for at 4 oclock in the morning, she would have just wanted to go home and rest in the
comfort of her bed.
We are not persuaded. Desiree could not have failed to recognize the appellant because she
was the victim of the assault. A truism founded on ordinary experience is that victims of criminal
violence often strive hard to recognize their assailants.[10] Furthermore, a victim has a natural knack
in remembering the face of an assailant for she, more than anybody else, would be interested in
bringing the malefactor to justice.[11] On the other hand, it would be unnatural for someone who is
interested in vindicating the crime to accuse somebody other than the real culprit. [12]
To be sure, Desiree was very emphatic in her identification of the appellant as her assailant,
thus:
Court: Now that person Herson Naag, how is he related to the accused in this case?
Desiree: He is the one and same person who raped and robbed me.
Q: You said it was the first time you saw the accused on January 8, 1996. It was still dark is (sic)
it not?
A: It was bright at the centro.
Q: But it was not in park (sic) he was sleeping at that time in his tricycle. Is it not? (sic)
A: It was bright because there were lights.
Q: But you saw him only once on Jan. 8, 1996. How were you able to recognize him in the
Municipal building when you were asked to identify him after one month, being detained?
A: As I have said, I can never forget his face.[13]
Moreover, Desiree should have no difficulty in identifying the appellant because when she first
approached him at the centro to hire his services, the place was bright and well-lighted.
The appellant further argues that Desirees initial identification of him through his picture is
unreliable considering the physical and emotional state she was in at that time. It is urged that due to
her physical and mental instability, the showing of the student permit must have generated a
prejudice in her mind that the person shown in the picture of the drivers ID is the one who assaulted
her.[14]
The argument proceeds from a wrong assumption. It assumes that the picture was shown
before the victim gave the description to the police. It was the other way around. Thus:
Court: Have you seen him in that parking area before January 8, 1996?
Desiree: No, your honor.
Q: Now, while you were in the Hospital you said that an ID was shown to you and the picture of
a person and whose picture you recognize to be that of a person who raped you. Who
showed you that picture?
A: The Police Officer.
Q: How come that the Policeman was able to go to Albay Provincial Hospital with that ID?
A: Because when they interviewed me in the hospital, I gave them the description of the accused
and his tricycle.[15]
The point is made more explicit during Desirees cross-examination:
Atty. Gomez (continuing on cross-examination)
Q: Now, on that date Jan. 9, 1996 were you told by the policemen that the person whose ID was
shown to you was one of their suspects?
A: The policeman told me to identify the person in the ID.
Q: Were you told that the owner of the ID was apprehended for violation of traffic law?
A: No, Sir. I was just asked to identify him.
Q: After the ID was shown to you that was the time when you also gave them the description of
the person, is (sic) it not?
A: No, Sir. It was on Jan. 8, 1996 when I gave the description of the tricycle driver.[16]
We shall now ascertain the nature and extent of the criminal responsibility of the
appellant. The issue is whether the crime committed by him is Robbery with Rape or the two
separate felonies of Robbery and Rape.
In the special complex crime of robbery with rape, the true intent of the accused must first be
determined because it is his intent that determines the offense he has committed. This Court
in People vs. Dinola,[17] citing the cases of People vs. Canastre[18] and People vs. Faigano,[19] held:
x x x if the intention of the accused was to rob, but rape was committed even before the asportation,
the crime is robbery with rape. But if the original plan was to rape but the accused after committing
the rape also committed the robbery when the opportunity presented itself, the offense should be
viewed as separate and distinct. To be liable for the complex crime of robbery with rape the intent to
take personal property of another must precede the rape.
We must ascertain the force which moved the appellant when he employed violence and
intimidation against the person of Desiree. It is true that the appellant raped Desiree before she was
dispossessed of her personal properties. This, however, is not decisive. Article 294 of the Revised
Penal Code does not distinguish whether the rape was committed before, during or after the
robbery. It suffices that the robbery was accompanied by rape. [20]
We agree with the conclusion of the trial court that rape was the primary intent of the
appellant and his taking away of the belongings of the victim was only a mere
afterthought. Although the trial court did not state the reasons for its ruling, there exists sufficient
evidence on record from where such deduction can be made.
First. It is obvious from the degree and character of the violence and intimidation which the
appellant employed (and when he employed it) upon Desiree that his intent was to rape her. He
applied such force as to render her resistance to his lust inutile. The kind of force used was
unnecessary if he only planned to rob Desiree. On the other hand, the excessive force was clearly
meant to attain his lustful scheme. Resultantly, when he finally forced his bestial desire on her, he
was able to traverse, in a manner of speaking, the path of least resistance.
Second. The appellant transported Desiree from where he first mauled her to an abandoned
place. All the time that Desiree was helpless after her mauling, appellant did not concern himself
with robbing Desiree even if he could have done so with ease if not with impunity. Instead, he
preoccupied himself in finding a location more suited, nay, comfortable, for his plan of lying with
her. Needless to say, an abandoned house fits well.
Lastly, at no time did the appellant ask for the belongings of Desiree. Neither did he search
her for valuables, except for the wallet in her pants. What is apparent is that he only: (1) took her
watch and bracelet, both easily seen and noticeable, and (2) fled with her bag which was already in
the tricycle. These overt acts only indicate that he decided to take Desirees belongings as an
afterthought and only when the opportunity presented itself.
We disagree, however, on the ruling of the trial court that the appellant is guilty of
robbery. He should only be convicted of theft because when he took the personal properties of
Desiree, the element of violence and intimidation was no longer present. While it is true that he
inflicted force upon her person, that was with the view and in pursuance of the rape, not of the
taking. When the asportation happened, Desiree was near lifeless, incapable of putting any form of
opposition.
The penalty for theft is determined by the value of the property taken. Under Article 309 of
the Revised Penal Code, any person guilty of theft shall be punished by the penalty of prision
correccional in its minimum and medium periods, if the value of the thing stolen is more than 200
pesos but does not exceed 6,000 pesos. Applying the Indeterminate Sentence Law, the minimum
penalty to be meted out on the appellant Naag should be anywhere within the range of 2 months and
1 day to 6 months of arresto mayor; and the maximum should be within the range of 6 months and 1
day to 4 years and 2 months ofprision correccional. Considering that no aggravating or mitigating
circumstance attended the commission of the crime, the appellant should be sentenced to an
indeterminate prison term of 4 months and 21 days of arresto mayor maximum as the minimum, to
1 year, 8 months and 21 days of prision correccional as the maximum.
IN VIEW WHEREOF, the impugned decision is hereby MODIFIED. The accused-appellant
Herson Naag y Lobas is found GUILTY beyond reasonable doubt of the crime of RAPE under
Article 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced to suffer the
penalty of imprisonment of reclusion perpetua with all the accessory penalties thereto appertaining,
to pay Desiree GollenaP50,000.00 as indemnity and P50,000.00 as moral damages.
The accused-appellant Herson Naag y Lobas is also found GUILTY beyond reasonable doubt
of the separate crime of THEFT under Article 308 of the Revised Penal Code, and taking into
consideration the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of
imprisonment of 4 months and 21 days of arresto mayor maximum as the minimum, to 1 year, 8
months and 21 days of prision correccional as the maximum, and to return the ladies wristwatch
worth P600.00, bracelet worth P1,500.00, bag of clothes worth P500.00 or their total value
of P2,600.00 if return cannot be made and the cash of P1,800.00. Costs against the accused.
SO ORDERED.
[G.R. No. 135034. January 18, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADRIANO SEGUIS a.k.a. JUNIOR,
ROSALITO ESTEBE a.k.a. DODONG, RODRIGO DOQUILA a.k.a. LOLONG (At
Large), ELMER CANICO (At Large), LOLOY GIBERTAS (At Large), BERFEL
DELA CRUZ (At Large), and JOHN DOE (At Large), accused.
ADRIANO SEGUIS and ROSALITO ESTEBE, accused-appellants.
DECISION
PUNO, J.:
Juliet A. Magamayo, a nineteen-year-old barrio lass from an obscure town in Surigao del
Norte complains that she has been ravished, then robbed by seven men, who, following her accounts,
were definitely no Romeos. She claims they did not only forcibly take her gold ring, they stole her
innocence as well. She claims they did not only dispossess her of a gold bracelet, they also divested
her of her sense of security. She claims they did not only deprive her of her last remaining fifty
pesos, they denied her furthermore a future.
Juliet pointed to the following men as the ones who committed the outrage against her
womanhood: Adriano Seguis a.k.a. Junior, Rosalito Estebe a.k.a. Dodong, Rodrigo Doquila a.k.a.
Lolong, Elmer Canico, Loloy Gibertas, Berfel dela Cruz, and a certain John Doe. They were charged
with the crime of robbery with multiple rape and were indicted in an Amended Information which
reads:
That on or about August 19, 1995, in Barangay Togbongon, City of Surigao, Philippines and within
the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating
together and with mutual understanding with one another, with lewd designs and by means of force
and intimidations (sic), did then and there willfully, unlawfully and feloniously have carnal
knowledge of Juliet A. Magamayo, while the latter was already sleeping, by taking turns in raping
her against her will and without her consent and on same occasion, accused with intent to gain and
by means of violence and intimidation, took, stole and carried away the following personal
belongings of Juliet A. Magamayo, to wit:
1. Gold bracelet ----------------------------- P 500.00
2. Gold ring ----------------------------- 4,000.00
3. Cash money ------------------------------ 50.00
T O T A L P 4,550.00
in the total amount of FOUR THOUSAND FIVE HUNDRED FIFTY (P4,550.00) PESOS,
Philippine currency, to the damage and prejudice of said Juliet A. Magamayo in the aforesaid
amount of P4,550.00 and such other damages as may be allowed by law.
Contrary to law.
Surigao City, Philippines, August 21, 1995.[1]
Of the seven accused, the record reveals that five of them remain at large. Only the first two
were placed under the custody of the authorities: Seguis and Estebe, and they are the appellants in
this case.During arraignment, both entered a plea of NOT GUILTY. Trial then proceeded.
The prosecutions version of the story is based mainly on the private complainants recollection
of what happened that dreadful night. The offended party is one Juliet A. Magamayo, a nineteen-
year old unmarried girl residing at San Jose, Mainit, Surigao del Norte. According to her, in the
afternoon of August 18, 1995 at about 3 o clock, she went to Barangay Togbongon, Surigao City, a
few kilometers away from the city proper. Her purpose was to collect a loan of fifty pesos from
Michael Balantucas, a friend of long standing whom she met when she was still staying with her
elder sister in Togbongon. She arrived there after approximately one hour of travel. As customary
with friends, they exchanged pleasantries and stories, and basically caught up with old times. A
while later, accused Loloy Gibertas and Elmer Canico who were on their way to fetch water passed
by the house. Michael introduced them to Juliet. They shook hands and talked a little before the two
eventually left. Michael then invited Juliet to stay in their home for the night because darkness was
closing in. Michael was living with his younger brother Rolando and younger sister Lilibeth since
their parents already died. Juliet agreed as she has slept in the place before. She thought that it was
too late and perilous to go back home.
Little did Juliet know that, in a cruel twist of fate, danger would visit her in the very refuge
where she sought safety. Following a dinner of cooked bananas plus a few more stories, she and the
Balantucas siblings prepared to retire. Juliet and Lilibeth slept in the houses only bedroom, which
was lighted by a kerosene lamp. Michael was just outside the rooms doorway while Rolando stayed
in the sala. At about midnight, Juliet was awakened by the noise brought about by the commotion of
five men who entered the house. She got up and saw Rodrigo Doquila pointing a knife at the throat
of a crouching Michael. She noticed that Lilibeth was not beside her anymore as it turned out that
the young girl went to the kitchen to relieve herself. Afraid, she shouted for help to Michael who
understandably could not do anything being himself mentally preoccupied with, in a manner of
speaking, saving his own neck.
 At this juncture, Elmer Canico grabbed the hair of Juliet and commanded her to lie down on
the floor. Loloy Gibertas held her right hand even as someone else was holding her left. She
struggled and twisted her body, so another man had to restrain her legs. Elmer Canico removed his
pants and brief, and knelt in front of her. He stripped Juliet of her pants and underwear before
continuing to place himself on top of the woman. He inserted his penis into her vagina then made a
push and pull movement. Feeling pain, she fought to free herself. She kicked her legs but Canico did
not seem to mind a bit. After satisfying his lust, he stood up and put on his pants. He replaced
Lolong Doquila in guarding Michael with a knife.
The next time, it was Doquila who introduced his penis into the ladys private part. Perhaps
realizing the futility of her struggle, Juliet tried to appeal to their sense of mercy. She begged him to
stop, mainly because of the pain. This also proved fruitless. He made the same push and pull
movements stopping only afterwards when he was able to satisfy his lust. Doquila was replaced by
Loloy Gibertas who had coital intercourse with the hapless victim. Again she resisted and shouted
for help. The men around her told her to remain silent if she does not want to get killed. Shortly,
Gibertas stood up and informed Berfel dela Cruz that it was his turn. Like the others before him, and
like the others soon to follow, he forced himself on Juliet. When he had his fill, the unidentified man
also had sexual contact with her.
Almost after the five predators finished ravaging their prey, Adriano Seguis and Rosalito
Estebe came into the room. Juliet already knew them even before this incident. She recognized the
two that night by means of a flashlight which Estebe brought to illuminate the area. Earlier, the small
kerosene lamp had been extinguished by the five men. As expected, Estebe laid himself on top of the
girl, who fought weakly against her new tormentor. He rammed his penis into her vagina. He got up
on his feet only after some minutes of sexual activity. Then Elmer Canico returned to the bedroom
and Juliet heard him announce that it was his turn again. For the second time that early morning, he
succeeded in copulating with her. The last one to have carnal knowledge of Juliet against her will
was Adriano Seguis. The latter inserted his male organ into her private part and performed the same
push and pull maneuverings using his buttocks. The victim begged him to stop for she could not bear
it anymore. Seguis told her to keep quiet.
When Seguis was done, he rose to his feet and went to the kitchen. He came back with a plate
of rice which he gave to the sobbing lady. Juliet pretended to eat the rice only so that she would not
be raped anymore. She did not utter a word but cried a river of tears over her heartbreaking
experience. She requested Seguis to help her up and she sat down in a corner. Rosalito Estebe was
seated on a nearby trunk.When Seguis tried to blame her for what took place, she answered that the
five men sexually abused her. Michael appeared and Juliet asked him how it happened. Michael
replied that he also did not know because they were all asleep when the incident started. Seguis and
Estebe warned them not to tell anybody of what transpired otherwise they might all be killed. It was
about one oclock in the morning when the two remaining accused left.
Juliet discovered later on that she had been despoiled of her gold ring worth P4,000.00 and her
gold bracelet worth P500.00. Furthermore, her cash money amounting to P50.00 was no longer in
her pants pocket. She admitted though that she was not aware who among the accused carried away
the aforementioned personal belongings while she was being assaulted by them.
The prosecution presented two other witnesses who corroborated Juliets testimony. Michael
Balantucas confirmed that the seven accused indeed illegally entered their house and took turns in
sexually defiling Juliet. The rapes were committed right before his eyes. He observed how one by
one each of them was able to impose his own bestial will against the lady. He very much wanted to
help his visitor whom he only invited that night. But as much as he wanted to, he could not do
anything, since all the while that the rape was going on, somebody was pointing a knife at his
throat. He was practically rendered impotent by the threat that something bad might happen to him
or his siblings.
For her part, Lilibeth Balantucas recounted, among other things, that she woke up at around
midnight to answer a call of nature. She went to the kitchen to urinate when five men suddenly
entered the bedroom. She identified them to be the accused Elmer Canico, Lolong Doquila, Loloy
Gibertas and Berfel dela Cruz. However, she did not know the fifth person. Tagging along were
Adriano Seguis and Rosalito Estebe who pulled and dragged her out of the house. She was able to
recognize them because of the light coming from an electric bulb located in the kitchen. Outside,
Seguis and Estebe ordered her to keep quiet, or else they would kill her. Out of extreme fear, she did
not make any sound. After about one hour, they also went inside the room. Lilibeth remained where
she was as they told her not to move.
Going back to Juliets testimony, it appears that later in the morning of August 19, 1995,
someone fetched Francisco Pecante, a member of the local CVO, who initially investigated the
incident. Then he sought Perfecto Pagas, the barangay captain of Togbongon. Together, they brought
the victim to the Surigao Provincial Hospital where she was physically examined and medically
treated.
The attending physician, Dr. Panfilo Jorge Tremedal III, testified that on August 19, 1995, he
was a resident doctor of the hospital. He checked up the person of Juliet Magamayo who complained
that she has been raped. Among his findings was an abrasion of the labia majora. In his expert
opinion, the injury could have probably been caused by a blunt object like an erect human penis.
Another member of the medical staff was also presented by the prosecution: Elsa Adlawan who was
employed as a medical technologist by the hospital. She declared that on the same date, she received
a vaginal specimen taken from Juliet for a laboratory evaluation for the presence of
spermatozoa. After conducting the required tests, she determined the said specimen to be positive for
spermatozoa.
With the prosecution resting its case, the defense made its counter-presentation of the facts. It
first offered Nilda Cabug-os, who, per her own declaration, is a friend of the victim but not related to
her. She recalled that Juliet arrived at her house in Togbongon at about four oclock in the afternoon
of August 18, 1995, purportedly to collect a sum of money Michael Balantucas owed her. They have
only conversed for a brief moment when Juliet went her way, returning after about two hours in the
company of a male escort, one Jeffrey Lerio. Later, Juliet would again leave the house with Jeffrey
for an undisclosed destination. By the time the clock struck eight, Juliet came back to the house. As
a matter of hospitality, Nilda extended an invitation to her guest to spend the night in their abode,
which invitation Juliet readily accepted. The latter was already sleeping when some young men
came to drop by. She rose to entertain her visitors. More than that, she went out with them. And
although she asked Nildas permission, she did not say where they were going. It was the last time
she saw her that night.
The next morning greeted Nilda with a neighbors story that Juliet allowed herself to have
sexual intercourse with several men in the house of Michael Balantucas. She replied that she and her
husband cautioned her about going out so late in the night but Juliets persistence made them yield.
She remembered that Juliet was wearing maong pants and a blouse on the day of the incident. She
also wore a cheap wristwatch worth about P35.00, a small belt worth approximately P30.00, a
headband and shoes made of cloth. She did not notice any fancy jewelry.
Another witness, Perfecto Pagas, gave evidence that he is a barangay kagawad of Togbongon
for three years, although a tricycle driver by vocation. He came to know of Juliet not only because
she is a frequent passenger but allegedly due to her reputation in the locality of associating herself
with different men. According to Pagas, sometime in March 1995, Juliet complained to him in the
office of the barangay council that she was raped by five men. She did not identify any names. The
complaint was not pursued as he heard later on that she has been paid. He admitted too that he failed
to enter the complaint in the official records on the excuse that Juliet anyway did not return anymore.
In his defense, the accused Adriano Seguis testified that on March 9, 1995, Juliet approached
him and made a request for him to bear witness in a rape case she was about to file. It was not clear
whether this is the same incident of the alleged rape that she complained to Kagawad Pagas. He
claimed that it was the first time that they met, although they became acquaintances after. At any
rate this is not the reason why he refused her. He simply had no knowledge of the incident.
 Seguis must have felt history repeating itself right before his very eyes. On the morning of
August 19, 1995, at 6 a.m., he arrived at the residence of Michael Balantucas. He went there together
with his co-accused Rosalito Estebe pursuant to a prior agreement that they would help Michael in
harvesting his crop of palay. In the uncanniest of coincidences, Juliet, who was already there when
he arrived, again was apparently involved in another case of rape which happened the previous
night, and once more asked him to testify for her. This time the request was coupled with a threat
that she would implicate him in the legal action if he refused to cooperate. For the second time in as
many instance, he rejected her plea. For scorning her twice, he incurred her fury. She made good her
threat and implicated him.
In an unexpected turn of events, the defense called to the witness stand Michael Balantucas
who previously testified for the prosecution. He was this time singing a different tune. He claimed
that his conscience was bothering him, and he could not suffer the burden of seeing two innocent
men go to jail. That is why he elected to testify even though he was aware that he was courting
criminal prosecution in changing his testimony. Michael recanted his former testimony by declaring
that in the evening of August 18, 1995, he was staying at his house with Juliet and his siblings,
Rolando and Lilibeth, when at around ten oclock, five men arrived. These five were the accused
Lolong Doquila, Elmer Canico, Loloy Gibertas, Berfel dela Cruz, and a certain Rolando Ezperanza.
They had a talk with Juliet wherein it was agreed that they would rent [2] her (i.e., have sex with her)
that night for a fee of one thousand pesos. While the lady supposedly kept her part of the bargain, the
men did not. Instead they even had the audacity to take her bracelet and wristwatch when they left at
about two oclock dawn. Juliet was enraged. She wanted to bring her customers[3] to court not to
collect the bill but to charge them with rape. When Seguis and Estebe arrived the next day, she asked
the three of them (including Michael) to testify in her behalf, otherwise she would implicate
them. As far as Michael knows, he was the only one who acceded to the ladys demand.
Rosalito Estebe basically towed the same story line as the two other witnesses. He testified
that he knows Juliet as she often comes to Togbongon where he lives. One time, on March 1995, he
saw her engage in sexual intercourse with multiple partners in their barrio. He himself did not take
part in the orgy. Later, she asked him to be her witness as she intended to file rape charges against
the persons who had sex with her. He refused as he heard that she has been paid the sum
of P1,000.00. Subsequently on May 14, 1995, which was the fiesta in Togbongon, Juliet again
requested him to be a witness in the complaint for rape she has filed against Ricky Antallan, Michael
Balantucas, Jeffrey Lerio, Lolong Doquila, Elmer Canico and Berfel dela Cruz. When he rejected
her, she implicated him in the present case.
In rebuttal, Juliet denied that she agreed to have sex with anyone for P1,000.00. She reiterated
her stand that she was abused by all seven men. Furthermore, it is not true that she merely implicated
Seguis and Estebe after the two declined to be her witnesses. Both also had sex with her.
After trial, the lower court pronounced the following sentence:[4]
WHEREFORE, premises considered, the Court finds each of the accused, Adriano Seguis or
Adriano Seguis Jr. and Rosalito Estebe, guilty beyond reasonable doubt as a principal (sic) of the
crime of simple rape under Article 335 of the Revised Penal Code, and hereby sentences each of
them to suffer the penalty of reclusion perpetua; and to pay one-half of the costs.
Each of the said accused is ordered to indemnify the victim, Juliet Magamayo, in the amount
of P50,000.00 for the rape committed by him.[5]
Hence, the present appeal. In their brief, appellants raised the lone assigned error, to wit:
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY
THOUGH NOT OF THE CRIME CHARGED BUT ONLY OF SIMPLE RAPE WITHOUT THEIR
GUILT HAVING BEEN PROVED BEYOND REASONABLE DOUBT.
It is to be noted that the accused in this case were originally indicted for the felony of robbery
with multiple rape, a special complex crime punishable under Art. 294, par. 1 of the Revised Penal
Code and which is committed when the robbery shall have been accompanied by rape. The said
provision, needless to say, covers cases of multiple rapes. [6] This is primarily due to the fact that the
juridical concept of this crime does not limit the consummation of rape against one single victim or
to one single act, making other rapes in excess of that number as separate, independent offense or
offenses. All the rapes are merged in the composite, integrated whole that is robbery with rape, so
long as the rapes accompanied the robbery. It does not matter too whether the rape occurred before,
during, or after the robbery.
Still and all, this does not change the nature of the felony. It is essentially a crime against
property. The following are its elements: (1) the taking of personal property is committed with
violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is
done with animo lucrandi; and, (4) the robbery is accompanied by rape. To sustain a conviction, it is
imperative that the robbery itself must be conclusively established; just as the fact that it was the
accused who committed it be proved beyond reasonable doubt. The prosecution must be able to
demonstrate the level of their participation with legal and moral certainty, including the existence of
a conspiracy, if any. Otherwise, those who were charged should be acquitted, at least for the robbery.
Proof of the rape alone is not sufficient to support a conviction for the crime of robbery with rape.
This is exactly the factual conclusion of the trial court, whose findings, to reiterate, are
accorded great weight and respect as trial judges are undeniably in the best position to weigh the
declaration of witnesses in light of their opportunity to observe physically the witnesses conduct and
attitude during trial.[7] Thus said the court:
x x x However there is no sufficient evidence pointing to the herein two accused as the ones who
divested the victim of her money and valuables. The complainant herself admitted that she did not
know who among the many accused took her gold ring, bracelet and cash. All that she became aware
of after her horrible experience was she no longer had the aforementioned items.
x x x There is a complete lack of evidence pointing to Adriano Seguis or Rosalito Estebe as the ones
who took the valuables in question. In the absence of proof of conspiracy among the accused to
commit the crime of robbery, they are liable only for their own separate and individual acts.
But the lower courts finding of their non-participation in the robbery does not mean that they
are totally guiltless. They will still be held accountable for whatever unlawful acts they may have
committed, and for which acts they were charged. In a criminal action for robbery with rape, where
the prosecution failed to prove the robo or the participation of the accused in it, the latter may still be
convicted for the rape. As already mentioned, the trial court has ruled that the appellants had carnal
knowledge of the private complainant by using force and intimidation. It convicted them of one
count of rape each because there was no showing that they conspired or assisted each other in
committing those rapes.
We affirm the conviction.
This Court has steadfastly adhered to the rule that when a woman testifies that she has been
raped, and if her testimony meets the test of credibility, the accused may be convicted on the basis
thereof.[8] A rape victim who testifies in a categorical, straightforward, spontaneous and frank
manner, and remains consistent, is a credible witness. [9] If her story had only been contrived, she
would not have been so composed and consistent throughout her entire testimony in the face of
intense and lengthy interrogation.[10] In the case at bar, the victim gave a direct and straight narration
of the events which only evinces the truthfulness of her testimony. Her story is corroborated on its
material points by an impartial and unbiased witness, Lilibeth Balantucas, who has absolutely no
personal interest in the outcome of this suit.Also, the medical evidence is consistent with the theory
that the complainant had been a victim of rape.
 In addition, Juliets credibility is bolstered by her instantaneous report of the crime to the Q : Was the room still lighted at that time.
police. The incident occurred in the early morning of August 19, 1995, and the very next day, or on A : No more, sir, only the flashlight.
August 20, 1995, she executed her affidavit before the authorities of the Surigao City Police. Q : Did you see the face of Rosalito Estebe?
A : Yes, sir.
Besides, the appellants failed to prove any ulterior or improper motive which could have Q : How were you able to see the faces of Adriano Seguis and Rosalito Estebe?
induced the victim and her witness to testify against or falsely implicate them in the commission of A : The light from the flashlight was moving around.
the crime.[11]Indeed, if an accused had really nothing to do with the crime, it is against the natural Q : Are you very sure that the two persons who came late were Adriano Seguis and Rosalito
order of events and human nature and against the presumption of good faith that the prosecution Estebe?
witness would falsely testify against the former.[12] Thus, we adhere to the established rule that in the A : Yes, sir.[16]
absence of any evidence to show that the witnesses for the prosecution were actuated by any
improper motive, their identification of the accused-appellants should be given full faith and In addition, there is the testimony of Lilibeth Balantucas, pointing to the two appellants as among
credit.[13] those who entered their house at around midnight. Her testimonial narrative proved that Seguis and
Estebe were in the Balantucas residence at precisely or about the same time Juliet was being raped. It
Appellants defense that they were merely implicated by Juliet as they refused to testify in her forthrightly contradicted the assertions of the two that they arrived there only about six oclock in the
favor is far from convincing. Both of them testified that they are not even close friends of Juliet. As morning of the next day. According to her:
correctly pointed out by the Solicitor-General, It is quite contrary to human experience that a woman
would narrate to somebody how she was used sexually for a fee (and was not paid) and thereafter xxx
request said person whom she hardly knew to testify in her favor to support her complaint. [14] Also,
such motive if availing is attributable only to Juliet. The same cannot be imputed to the other vital Prosec. Menor: You said you slept at about 12:00 (sic) oclock in the evening, what time did you
witness Lilibeth, who, to repeat, does not have any interest in this case and yet explicitly declared awake up?
that appellants were among the seven men who went to their house the night of August 18, 1995. Lilibeth: At 12:00 because I want to urinate.
Q : Where did you go after you wake (sic) up?
In support of their lone assignment of error, the accused advanced several arguments designed A : To the kitchen.
to destroy the credibility of the witness herself and then her testimony. We are not impressed by Q : When you reached the kitchen of your house, what happened next?
these arguments. A : Then some men entered our room.
Q : How many were they?
I A : Five persons.
Q : How about you?
Appellants basic submission is a mere restatement of their defense. They assert that they were
A : I was outside because I was afraid and I was pulled.
not present at the scene of the crime during the supposed moment that it was unfolding. On the
Q : By whom?
contrary, they arrived there only at six oclock the following morning allegedly to help Michael
A : Dodong Estebe, Adriano Seguis.
Balantucas harvest his palay.
Q : Including Estebe and Seguis, how many persons were there in the house, all in all?
Such submission must fail for obvious reasons. We have ruled that the defense of alibi is A : Seven persons.
inherently weak and crumbles in the light of positive declarations of truthful witnesses who testified Q : What did Seguis and Estebe do to you?
on affirmative matters that the accused-appellants were at the scene of the incident and were the A : Seguis and Estebe held my hands and told me to keep quite or they would kill me.
victims assailants and perpetrators of the crime.[15] In the present case, the appellants were positively
xxx
identified by the victim, thus:
Q : Considering that it was nighttime, how were you able to recognize them when they were
Prosec. Menor : After that person was finished, what happened next?
able to drag you outside?
Juliet : Then Adriano Seguis and Rosalito Estebe went up the house.
A : Because there was a light.
Q : Did they enter the room?
Q : Light from what?
A : Yes, sir. Rosalito entered the room first.
A : From electric bulb.
Q : By the way, do you know personally Rosalito Estebe?
Q : And where was that electric bulb located or placed?
A : Yes, sir.
A : Outside.
Q : For how long have you known him prior to the incident?
Q : Are you referring to the post?
A : A long time, sir.
A : No, sir, it was came from our kitchen.
Q : In Barangay Togbongon?
Q : Kitchen of your house?
A : Yes, sir.
A : Yes, sir.[17]
Q : You knew him because you have stayed in Togbongon, Surigao City?
A : Yes, sir. It was Jolly who introduced (sic) to me. Moreover, the defense of alibi is an issue of fact that hinges on credibility, the relative weight
Q : How were you able to recognize that it was Rosalito Estebe and Adriano Seguis who entered of which the trial court assigns to the testimony of the witnesses. Such assessment, unless patently
the room? and clearly inconsistent, must be accepted, for verily a careful evaluation of the record does not
A : Because Rosalito and Adriano called for Michael Tol. reveal that the trial courts rejection of the defense of alibi is inconsistent with the evidence on
Q : My question, how were you able to recognize Rosalito Estebe and Adriano Seguis. record.[18]
A : Estebe was bringing (sic) a flashlight.
Q : How about Adriano Seguis? Lastly, it puzzles this court why the appellants, despite their plea of alibi, never testified as to
A : He was there sitting near the head of Michael. their whereabouts the night of August 18, 1995. Neither did they present any witness who can
plausibly confirm that they were indeed in another place at that period. For the defense of alibi to be
appreciated, it is not enough to prove that the accused was somewhere else when the offense was
committed. It must likewise be shown that he was so far away that it was not possible for him to be
physically present at the place of the crime or its immediate vicinity at the time of its commission.
The rule is settled that for the defense of alibi to prosper, the requirement of time and place must be
strictly met.[19]
II
Appellants contend that private complainant is not credible as she is known in the locality as a
scheming 19-year old woman, of loose morals, engaged in the oldest trade, and wise in her ways
with the world.[20] Consequently, it is a misplaced gesture of sympathy and compassion to consider
her truthful and a paragon of a Filipinas inbred modesty and Christian virtues. The record, however,
is bereft of any evidence that Juliet is a woman for hire, except for the statements of witnesses Nilda
Cabug-os, Perfecto Pagas, and appellant Rosalito Estebe to the effect that she is often seen in the
company of men. These recitals by themselves cannot be made sufficient basis for accepting the
veracity of the allegation. Greater amount of quantitative and qualitative proof is needed.
Moreover, it is unlikely that even a prostitute would agree to have sex continuously with five
to seven men for one night for a fee of P1,000.00. And it is even more unlikely that she would go to
the extent of filing a case against them, two of whom are acquaintances, have her parts physically
examined, and testify in court how she was ravaged by them just to get even for their failure to pay.
Obviously, the reason why Juliet went to court and opted to suffer the ordeal of being interrogated
on her harrowing experience is to obtain justice.
III
Appellants next call our attention on the so-called badges or telltale signs of a perfected
contract for sexual services between Juliet and the accused. The appellants would like to impress
upon this Court that an agreement would lend credence to their theory that she allowed herself to be
used that night by five men who in turn reneged on their word of paying her. As a consequence of
which, she was left with no choice but to file this action and include the appellants as well for
refusing her request to be her witnesses. In the alternative, the agreement should demonstrate that if
there was any sexual activity participated in by the woman and the appellants, it was at least
consensual.
First. They argue that if it were true that Juliet was raped no less than eight times and by
seven different men, she should have sustained more injuries than mere superficial linear abrasion on
the labia majora. This should manifest that every intercourse was done, not with force and
intimidation, but with care and finesse. Suffice it to say that the absence of external signs of physical
injuries does not negate rape.[21] This is especially true if we take into consideration that two men
held Juliets hands while she was being raped in succession. Be that as it may, whatever wounds she
might have suffered is consistent with the hypothesis that she was raped. As opined by Dr.
Tremedal, an acknowledged expert witness, her scars, by their very nature, must have been caused
by a blunt object hitting the vagina with force, such as an erect male penis during sexual intercourse.
Second. Appellants ask how come Seguis and Estebe preferred not to rape Lilibeth Balantucas
herself who was already at their complete control during the time that complainant was allegedly
being gang-raped by the other five accused inside the room? Why did they wait for the five to finish
and leave behind in the process a fresh, sweeter, and younger[22] Lilibeth? They claim that this is
unnatural for people driven by lust and bestial desire, unless there was a prior arrangement made by
them with the victim. We are not persuaded. Lust is not a respecter of time, place and circumstances,
nor of persons and relationships,[23] and neither is it a conformist to reason and good taste, nor
common sense even. When a man is overcome by lustful passions, certainly it would be too much to
expect that he will still concern himself with the age, scent or appearance of his prospect.
Third. Appellants contend that Juliets act of telling Adriano Seguis, before she was raped by
the latter, that she could not take it anymore is indicative of the existence of a prior agreement with
the seven accused for a fee of P1,000. Again, the argument lacks merit. When Juliet told Seguis that
she could not take it, she was not asking for a recess or timeout [24] as they insist, but was actually
pleading that he no longer rape her as she has suffered enough in the hands of the other accused.
Fourth. They assert that the subsequent act of Seguis and Estebe in socializing with the victim
and the Balantucas siblings negates any idea of a misdeed. A reality check, however, would show
that the accused stayed for a while after raping Juliet not to socialize with them, as in fact the two
warned them not to tell anybody of what happened or they would be killed. Although it is correct
that Seguis later showed some signs of remorse towards the victim, his acts were belated and could
no longer erase his crime. The ambiguous attitude of Seguis is understandable. While succumbing to
his uncontrollable lust, he remained quite sympathetic to the plight of Juliet, who was an old
acquaintance. Nevertheless, the apparent regret shown by Seguis after the act of rape could not undo
what he had done. It was too late for recriminations.
IV
On another point, appellants keep harping on the one hundred eighty-degree turn around made
by Michael on the stand. They say that if the alleged sexual congresses were true, and witnessed by
Michael, it is highly unthinkable that, despite the risk of facing criminal prosecution for false
testimony and perjury, he would still recant his previous testimony in court in favor of the two. They
stress that Juliet and Michael are more than good friends; and, the latter by force of circumstance
should not hesitate to defend the complainants position.
The Court fails to be impressed with the recantation of Michael Balantucas for several
reasons. A recantation does not necessarily cancel an earlier declaration. [25] Like any other
testimony, it is subject to the test of credibility based on the relevant circumstances and especially
the demeanor of the witness on the stand. Moreover, it should be received with caution as otherwise
it could make solemn trials a mockery and place the investigation of truth at the mercy of
unscrupulous witnesses.[26]
In any event, the eyewitness accounts of Juliet herself and Lilibeth are more than sufficient to
prove beyond doubt the participation of the appellants in the commission of the assault. Even if the
trial court had not given credence to the first testimony of Michael, there still is enough indication to
ascertain their culpability. His declaration is merely cumulative, or additional evidence of the same
kind tending to establish the same point or factual issue.
V
Lastly, appellants put private complainant to task for alleged marked contradictions and pure
improbabilities surrounding her story. For instance, they assert that it would be highly doubtful for
Juliet not to notice who took away her gold ring and gold bracelet, if in the first place there were
any. So too are they puzzled with how consistent she is in her perception of how long each accused
raped her. To them this is a sure sign that her performance on the stand is rehearsed.
The submission deserves scant attention. Verily, one cannot expect a victim of such nerve-
racking experience to become aware of every minute detail of the event, or question her keenness to
observe one aspect of it but not another. It is understandable for the poor victim not to remember
who particularly among the seven took away her valuables. At that point, her ring and bracelet were
not that important to her. Regarding the time, it could well be the only thing that concerned her
mind. In any event, these contradictions or improbabilities, as appellants would put it, cannot erode
the credibility of Juliets testimony.
IN VIEW WHEREOF, the Decision of the Regional Trial Court of Surigao City in Criminal
Case No. 4581 is AFFIRMED in toto. Costs against appellants.
SO ORDERED.
 [G.R. No. 130508. April 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO REGALA y
ABRIOL, accused-appellant.
DECISION
GONZAGA_REYES, J.:
Armando Regala appeals from the judgment in Criminal Case No. 7929 rendered by the Regional
Trial Court of Masbate, Masbate, Branch 46, 5th Judicial Region, convicting him of the crime of
Robbery with Rape.
The information against accused-appellant on November 27, 1995, filed by 2nd Assistant Provincial
Prosecutor Jesus C. Castillo, reads as follows: Sppedsc
"That on or about September 11, 1995, in the evening thereof, at Barangay
Bangon, Municipality of Aroroy, Province of Masbate, Philippines, within the
jurisdiction of this Court, the said accused confederating together and helping
one another, with intent to gain, violence and intimidation upon persons, did
then and there wilfully, unlawfully and feloniously enter the kitchen of the
house of Consuelo Arevalo and when inside, hogtied said Consuelo Arevalo
and granddaughter Nerissa Regala (sic), take, steal, rob and carry away cash
amount of P3,000.00 and two (2) gold rings worth P6,000.00, to the damage
and prejudice of owner Consuelo Arevalo in the total amount of P9,000.00,
Philippine Currency; and in pursuance of the commission of the crime of
robbery against the will and consent of the granddaughter Nerissa Regala (sic)
wilfully, unlawfully and feloniously accused Armando Regala y Abriol has for
two times sexually abused and/or intercoursed with her, while hogtied on the
bed and in the kitchen.
CONTRARY TO LAW.[1]
Accused-appellant was apprehended by the police four days after the incident. He was identified at a
police line-up by Nerissa and her grandmother. Calrsc
The prosecution presented three witnesses: Dra. Conchita Ulanday, Municipal Health Officer of
Aroroy, Masbate, who personally examined the rape victim; Nerissa Tagala, the rape victim, 17
years old, a third year high school student; and her grandmother, Consuelo Arevalo, who was her
companion when the robbery with rape transpired at Consuelos house.
The prosecutions version is stated in Appellees Brief as follows: Sccalr
"On September 11, 1995, at about 9:00 oclock in the evening at Barangay
Bangon, Aroroy, Masbate, then 16-year old victim Nerissa Tagala and her
grandmother (Consuelo Arevalo) were sleeping, when appellant Armando
Regala and his two other companions entered the formers house. (pp. 6-7, TSN,
August 26, 1996).
Appellant and his companions entered the house through the kitchen by
removing the pieces of wood under the stove. Appellant went to the room of
Nerissa and her grandmother and poked an 8-inch gun on them, one after the
other. (p. 8, TSN, August 26, 1996)
Nerissa and her grandmother were hogtied by appellant and his companions.
Thereafter, Nerissa was raped by appellant Armando Regala in bed while her
grandmother was on the floor. After the rape, appellant and his two companions
counted the money which they took from the "aparador." (pp. 9-10, TSN,
August 26, 1996)
Appellant and his companions then ran away with P3,000 in cash, 2 pieces of
ring valued at P6,000 and two wrist watches worth P5,000. (pp. 11-13, TSN,
August 26, 1996)
The following day, September 12, 1995, Nerissa went to the Rural Health
Clinic of Aroroy, Masbate for medical examination. In the Medical Report
presented by Municipal Health Officer Dr. Conchita S. Ulanday, it was shown
that Nerissa sustained laceration of the hymen at 4:00 oclock and 7:00 oclock
positions (fresh wounds), indicating a possible sexual assault upon the victim.
(p. 16, TSN, August 26, 1996)[2]
The defense presented accused-appellant who testified that on September 11, 1995, he was staying in
the house of Antonio Ramilo at barangay Syndicate, Aroroy, Masbate. Ramilo was the manager in
the gold panning business where accused-appellant was employed. Antonio Ramilo testified and
corroborated his defense and stated that accused-appellant was in his house, which is about 5
kilometers away from Barangay Bangon. Calrspped
The trial court held that the defense of alibi cannot overcome the positive identification of the
accused. The dispositive portion of the judgment reads:
"WHEREFORE, in view of all the foregoing, the Court finds accused Armando
Regala y Abriol guilty beyond reasonable doubt of the crime of Robbery with
Rape, as penalized under Par. 2 of Art. 294 of the Revised Penal Code and
hereby sentences him to suffer imprisonment of reclusion perpetua; to
indemnify the victim Consuelo Arevalo the sum of P9,000.00, the cash and
value of the looted articles; to indemnify the victim Nerissa Tagala the sum
of P50,000.00 as moral damages, and the further sum of P25,000.00 as
exemplary damages. No subsidiary imprisonment in case of insolvency, and to
pay the costs."[3]
Armando has appealed to this Court pleading that: Scedp
(1) THE TRIAL COURT GRAVELY ERRED IN FINDING THAT
SUFFICIENT EVIDENCE EXIST TO ESTABLISH CLEARLY THE
IDENTITY OF THE ACCUSED-APPELLANT AS PERPETRATOR OF THE
CRIME CHARGED.
(2) THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.[4]
which alleged errors were discussed jointly.
In essence, accused-appellant questions the sufficiency of the prosecutions evidence in identifying
him as one of the perpetrators of the crime charged. He claims that the complaining witness could
not have positively identified him as there was no electricity nor any light in the place of the incident
which took place at 9:00 oclock in the evening. Consuelo Arevalo was able to identify accused-
appellant only after he was pinpointed by Nerissa, and made contradictory statements in court when
she stated that accused-appellant removed his mask after she was hogtied, and later stated that
accused-appellant removed his mask before she was hogtied. The medico-legal officer, Dr. Ulanday,
herself testified that the complaining witness either voluntarily submitted to a sexual act or was
forced into one. Edpsc
The appellee insists that appellants lame defense of alibi cannot stand against the positive
identification made by the victim, and avers that the victim, a 16 year old barrio lass at the time the
rape was committed, was motivated by a sincere desire to seek and obtain justice. The Solicitor
General also recommends an additional award of compensatory damages ofP50,000.00 in favor of
Nerissa Tagala. Edp
We affirm the judgment of conviction.
There was sufficient evidence to establish the identity of accused-appellant as the perpetrator of the
crime. Misedp
Nerissa positively recounted the incident on the witness stand. She was sleeping with her
grandmother in the latters house when the accused-appellant Regala, together with the unidentified
companions entered the house. Regala pointed a gun, about 8 inches long, at her grandmother, and
then at her, and hogtied both of them. Regala took off her panty and her shorts, and removed his own
"porontong" pants, and made sexual intercourse ("itot") with her while she was hogtied in bed. Her
grandmother was at the floor. She saw the aparador of her grandmother being opened. She could not
shout because the gun was pointed at her, and she was afraid. Two companions of the accused-
appellant entered the room as she was being raped. Two rings valued at about P6,000.00 and 2 wrist
watches (one "Seiko" and the other "Citizen") and money was taken by the accused-appellant and his
companions. After raping her in bed, Nerissa saw accused-appellant counting the money taken from
the aparador. Thereafter, she was brought to the kitchen, still hogtied, and raped again.[5] On cross-
examination, Nerissa stated that although there was no electricity, and the light in the house was
already off, she was able to see the face of Regala because at the time Regala was counting the
money, one of his companions was holding the flashlight "beamed to the money" and there was
"some reflection" on the face of Regala[6] She remembered the face of Regala because of an earring
on his left ear[7] which he was wearing when presented at the police line-up.[8]
Consuelo Arevalo testified and corroborated the testimony of her granddaughter. Armando Regala
entered the house with two companions, hogtied her and Nerissa, and were asking for money. After
having sexual intercourse with Nerissa, Regala took P3,000.00 in paper bills and coins from her
aparador, and got a stainless Seiko wristwatch and two gold rings valued atP6,000.00. She was able
to recognize Regala because of his earring on his left ear, and because he was pinpointed by Nerissa
at the police station. She was not able to shout at the time because her mouth was gagged with a
piece of cloth by Regala.[9] On cross-examination, Consuelo Arevalo declared that she was able to
see Regala because he used her flashlight, and he took off the mask he was wearing; she recognized
Regala because of his earring and his flat top hair cut.[10]
The Court gives its approbation to the finding of the trial court that the evidence was sufficient to
clearly establish the identity of Armando Regala as the person who, with two companions,
committed the crime of robbery accompanied by rape on the night of September 11, 1995. Nerissa
Tagala positively identified Armando Regala because at the time he was counting the money on her
bed, the other companion of the accused beamed the flashlight towards the money and there was a
reflection on the face of Regala. Although the three intruders were wearing masks when they entered
the house, they removed their masks later.[11]
Our cases have held that wicklamps, flashlights, even moonlight and starlight may, in proper
situations, be sufficient illumination, making the attack on the credibility of witnesses solely on this
ground unmeritorious.[12]
We are not persuaded by the contention of accused-appellant that the contradictory replies of
Consuelo Arevalo when asked whether Regala removed his mask "before"[13] or "after"[14] she and
Nerissa were hogtied exposed the fact that she was not able to identify the accused-appellant. The
contradiction referred to a minor detail and cannot detract from the fact that both Nerissa and
Consuelo positively identified Regala as there was a flashlight used to focus at the money while it
was being counted and there was a reflection on the face of Regala. Both Nerissa and Consuelo
remembered the earring on his left ear, which he was still wearing at the time of the police line-up
inside the police station. Misoedp
Dr. Conchita Ulandays testimony does not support the contention of accused-appellant that Nerissa
voluntarily submitted to the sexual advances of Regala. The admission of Dr. Ulanday that her
findings point to the fact that Nerissa "either voluntarily or was forced into sexual act" does not
prove that Nerissa voluntarily submitted to the sexual act. Dr. Ulanday testified that there was
suggested evidence of penetration as shown by the two lacerations at 4 oclock and at 7 oclock which
were fresh wounds. That the act was involuntary was clearly established by the fact that Nerissa was
hogtied when she was sexually attacked. As correctly pointed out by appellee, Nerissa was a 16-year
old barrio lass, not exposed to the ways of the world and was not shown to have any ill-motive to
falsely implicate accused-appellant, who was a stranger. And as repeatedly pronounced by this
Court, it simply would be unnatural for a young and innocent girl to concoct a story of defloration,
allow an examination of her private parts and thereafter subject herself to a public trial or ridicule if
she was not, in fact, a victim of rape and deeply motivated by a sincere desire to have the culprit
apprehended and punished.[15]
The crime of robbery with rape was committed in 1995 when RA 7659 was already in force. Article
294 of the Revised Penal Code as amended now provides, under paragraph 1 thereof:Edpmis
"1. The penalty of reclusion perpetua to death, when for any reason of or on
occasion of the robbery, the crime of homicide shall have been committed, or
when the robbery shall have been accompanied by rape or intentional
mutilation or arson."
The victim in the case at bar was raped twice on the occasion of the robbery. There are
cases[16] holding that the additional rapes committed on the same occasion of robbery will not
increase the penalty. In People vs. Martinez,[17] accused Martinez and two (2) other unidentified
persons, who remained at large, were charged with the special complex crime of robbery with rape
where all three raped the victim. The Court imposed the penalty of death after considering two (2)
aggravating circumstances, namely, nocturnidad and use of a deadly weapon. However, the Court
did not consider the two (2) other rapes as aggravating holding that "(T)he special complex crime of
robbery with rape has, therefore, been committed by the felonious acts of appellant and his cohorts,
with all acts or rape on that occasion being integrated in one composite crime." Jjsc
There are likewise cases[18] which held that the multiplicity of rapes committed could be appreciated
as an aggravating circumstance. In People vs. Candelario[19] where three (3) of the four (4) armed
men who robbed the victim "alternately raped her twice for each of them", this Court, citing People
vs. Obtinalia,[20] ruled that "(T)he characterization of the offense as robbery with rape, however, is
not changed simply because there were several rapes committed. The multiplicity of rapes should
instead be taken into account in raising the penalty to death." Scjj
It should be noted that there is no law providing that the additional rape/s or homicide/s should be
considered as aggravating circumstance. The enumeration of aggravating circumstances under
Article 14 of the Revised Penal Code is exclusive as opposed to the enumeration in Article 13 of the
same code regarding mitigating circumstances where there is a specific paragraph (paragraph 10)
providing for analogous circumstances. Sjcj
It is true that the additional rapes (or killings in the case of multiple homicide on the occasion of the
robbery) would result in an "anomalous situation" where from the standpoint of the gravity of the
offense, robbery with one rape would be on the same level as robbery with multiple
rapes.[21] However, the remedy lies with the legislature. A penal law is liberally construed in favor of
the offender[22] and no person should be brought within its terms if he is not clearly made so by the
statute.[23]
In view of the foregoing, the additional rape committed by herein accused-appellant should not be
considered as aggravating. The penalty of reclusion perpetua imposed by the trial court is
proper. Supreme
As regards the civil indemnity, we find well-taken the recommendation of the Solicitor General that
compensatory damages should be awarded in the amount of P50,000.00. Nerissa Tagala is entitled to
an award of civil indemnity ex delicto of P50,000.00, which is given in favor of the offended party in
rape.[24] Also a conviction for rape carries with it the award of moral damages to the victim since it is
recognized that the victims injury is concomitant with and necessarily results from the ordinary
crime of rape to warrant per se an award of P50,000.00 as moral damages.[25]
WHEREFORE, the judgment convicting Armando Regala y Abriol guilty beyond reasonable doubt
of the crime of Robbery with Rape, is hereby AFFIRMED with the MODIFICATION that Nerissa
Tagala is entitled to an additional award of P50,000.00 as civil indemnity. Court
SO ORDERED.
LUIS MARCOS P. LAUREL, G.R. No. 155076
Petitioner, vs
HON. ZEUS C. ABROGAR,
Presiding Judge of the Regional
Trial Court, Makati City, Branch 150,
PEOPLE OF THE PHILIPPINES Promulgated:
& PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY,
Respondents. January 13, 2009
RESOLUTION
YNARES-SANTIAGO, J.:
On February 27, 2006, this Courts First Division rendered judgment in this case as follows:
IN LIGHT OF ALL THE FOREGOING, the petition
is GRANTED. The assailed Orders of the Regional Trial Court and the
Decision of the Court of Appeals are REVERSED and SET ASIDE. The
Regional Trial Court is directed to issue an order granting the motion of the
petitioner to quash the Amended Information.
SO ORDERED.[1]
By way of brief background, petitioner is one of the accused in Criminal Case No. 99-
2425, filed with the Regional Trial Court of Makati City, Branch 150. The Amended Information
charged the accused with theft under Article 308 of the Revised Penal Code, committed as follows:
On or about September 10-19, 1999, or prior thereto in Makati City, and within
the jurisdiction of this Honorable Court, the accused, conspiring and
confederating together and all of them mutually helping and aiding one another,
with intent to gain and without the knowledge and consent of the Philippine
Long Distance Telephone (PLDT), did then and there willfully, unlawfully and
feloniously take, steal and use the international long distance calls belonging to
PLDT by conducting International Simple Resale (ISR), which is a method of
routing and completing international long distance calls using lines, cables,
antenae, and/or air wave frequency which connect directly to the local or
domestic exchange facilities of the country where the call is destined,
effectively stealing this business from PLDT while using its facilities in the
estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in
the said amount.
CONTRARY TO LAW.[2]
Petitioner filed a Motion to Quash (with Motion to Defer Arraignment), on the ground
that the factual allegations in the Amended Information do not constitute the felony of theft. The trial
court denied the Motion to Quash the Amended Information, as well petitioners subsequent Motion
for Reconsideration.
Petitioners special civil action for certiorari was dismissed by the Court of Appeals. Thus,
petitioner filed the instant petition for review with this Court.
In the above-quoted Decision, this Court held that the Amended Information does not
contain material allegations charging petitioner with theft of personal property since international
long distance calls and the business of providing telecommunication or telephone services are not
personal properties under Article 308 of the Revised Penal Code.
Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion for
Reconsideration with Motion to Refer the Case to the Supreme Court En Banc. It maintains that the
Amended Information charging petitioner with theft is valid and sufficient; that it states the names of
all the accused who were specifically charged with the crime of theft of PLDTs international calls
and business of providing telecommunication or telephone service on or about September 10 to 19,
1999 in Makati City by conducting ISR or International Simple Resale; that it identifies the
international calls and business of providing telecommunication or telephone service of PLDT as the
personal properties which were unlawfully taken by the accused; and that it satisfies the test of
sufficiency as it enabled a person of common understanding to know the charge against him and the
court to render judgment properly.
PLDT further insists that the Revised Penal Code should be interpreted in the context of
the Civil Codes definition of real and personal property. The enumeration of real properties in
Article 415 of the Civil Code is exclusive such that all those not included therein are personal
properties. Since Article 308 of the Revised Penal Code used the words personal property without
qualification, it follows that all personal properties as understood in the context of the Civil Code,
may be the subject of theft under Article 308 of the Revised Penal Code. PLDT alleges that the
international calls and business of providing telecommunication or telephone service are personal
properties capable of appropriation and can be objects of theft.
PLDT also argues that taking in relation to theft under the Revised Penal Code does not
require asportation, the sole requisite being that the object should be capable of appropriation. The
element of taking referred to in Article 308 of the Revised Penal Code means the act of depriving
another of the possession and dominion of a movable coupled with the intention, at the time of the
taking, of withholding it with the character of permanency. There must be intent to appropriate,
which means to deprive the lawful owner of the thing. Thus, the term personal properties under
Article 308 of the Revised Penal Code is not limited to only personal properties which are
susceptible of being severed from a mass or larger quantity and of being transported from place to
place.
PLDT likewise alleges that as early as the 1930s, international telephone calls were in
existence; hence, there is no basis for this Courts finding that the Legislature could not have
contemplated the theft of international telephone calls and the unlawful transmission and routing of
electronic voice signals or impulses emanating from such calls by unlawfully tampering with the
telephone device as within the coverage of the Revised Penal Code.
According to respondent, the international phone calls which are electric currents or sets
of electric impulses transmitted through a medium, and carry a pattern representing the human voice
to a receiver, are personal properties which may be subject of theft. Article 416(3) of the Civil Code
deems forces of nature (which includes electricity) which are brought under the control by science,
are personal property.
In his Comment to PLDTs motion for reconsideration, petitioner Laurel claims that a
telephone call is a conversation on the phone or a communication carried out using the telephone. It
is not synonymous to electric current or impulses. Hence, it may not be considered as personal
property susceptible of appropriation. Petitioner claims that the analogy between generated
electricity and telephone calls is misplaced. PLDT does not produce or generate telephone calls. It
only provides the facilities or services for the transmission and switching of the calls. He also insists
that business is not personal property. It is not the business that is protected but the right to carry on
a business. This right is what is considered as property. Since the services of PLDT cannot be
considered as property, the same may not be subject of theft.
The Office of the Solicitor General (OSG) agrees with respondent PLDT that international
phone calls and the business or service of providing international phone calls are subsumed in the
enumeration and definition of personal property under the Civil Code hence, may be proper subjects
of theft. It noted that the cases of United States v. Genato,[3]United States v. Carlos[4] and United
States v. Tambunting,[5] which recognized intangible properties like gas and electricity as personal
properties, are deemed incorporated in our penal laws. Moreover, the theft provision in the Revised
Penal Code was deliberately couched in broad terms precisely to be all-encompassing and embracing
even such scenario that could not have been easily anticipated.
According to the OSG, prosecution under Republic Act (RA) No. 8484 or the Access
Device Regulations Act of 1998 and RA 8792 or the Electronic Commerce Act of 2000does not
preclude prosecution under the Revised Penal Code for the crime of theft. The latter embraces
unauthorized appropriation or use of PLDTs international calls, service and business, for personal
profit or gain, to the prejudice of PLDT as owner thereof. On the other hand, the special laws punish
the surreptitious and advanced technical means employed to illegally obtain the subject service and
business. Even assuming that the correct indictment should have been under RA 8484, the quashal of
the information would still not be proper. The charge of theft as alleged in the Information should be
taken in relation to RA 8484 because it is the elements, and not the designation of the crime, that
control.
Considering the gravity and complexity of the novel questions of law involved in this case, the
Special First Division resolved to refer the same to the Banc.
We resolve to grant the Motion for Reconsideration but remand the case to the trial court
for proper clarification of the Amended Information.
Article 308 of the Revised Penal Code provides:
Art. 308. Who are liable for theft. Theft is committed by any person who, with
intent to gain but without violence against, or intimidation of persons nor force
upon things, shall take personal property of another without the latters consent.
The elements of theft under 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.
Prior to the passage of the Revised Penal Code on December 8, 1930, the definition of the term
personal property in the penal code provision on theft had been established in Philippine
jurisprudence. This Court, in United States v. Genato, United States v. Carlos, and United States v.
Tambunting, consistently ruled that any personal property, tangible or intangible, corporeal or
incorporeal, capable of appropriation can be the object of theft.
Moreover, since the passage of the Revised Penal Code on December 8, 1930, the term personal
property has had a generally accepted definition in civil law. In Article 335 of the Civil Code of
Spain, personal property is defined as anything susceptible of appropriation and not included in the
foregoing chapter (not real property). Thus, the term personal property in the Revised Penal Code
should be interpreted in the context of the Civil Code provisions in accordance with the rule on
statutory construction that where words have been long used in a technical sense and have been
judicially construed to have a certain meaning, and have been adopted by the legislature as having a
certain meaning prior to a particular statute, in which they are used, the words used in such statute
should be construed according to the sense in which they have been previously used. [6] In fact, this
Court used the Civil Code definition of personal property in interpreting the theft provision of the
penal code in United States v. Carlos.
Cognizant of the definition given by jurisprudence and the Civil Code of Spain to the term personal
property at the time the old Penal Code was being revised, still the legislature did not limit or qualify
the definition of personal property in the Revised Penal Code. Neither did it provide a restrictive
definition or an exclusive enumeration of personal property in the Revised Penal Code, thereby
showing its intent to retain for the term an extensive and unqualified interpretation. Consequently,
any property which is not included in the enumeration of real properties under the Civil Code and
capable of appropriation can be the subject of theft under the Revised Penal Code.
The only requirement for a personal property to be the object of theft under the penal code is that it
be capable of appropriation. It need not be capable of asportation, which is defined as carrying
away.[7] Jurisprudence is settled that to take under the theft provision of the penal code does not
require asportation or carrying away.[8]
To appropriate means to deprive the lawful owner of the thing.[9] The word take in the Revised Penal
Code includes any act intended to transfer possession which, as held in the assailed Decision, may be
committed through the use of the offenders own hands, as well as any mechanical device, such as an
access device or card as in the instant case. This includes controlling the destination of the property
stolen to deprive the owner of the property, such as the use of a meter tampering, as held
in Natividad v. Court of Appeals,[10]use of a device to fraudulently obtain gas, as held in United
States v. Tambunting, and the use of a jumper to divert electricity, as held in the cases of United
States v. Genato,United States v. Carlos, and United States v. Menagas.[11]
As illustrated in the above cases, appropriation of forces of nature which are brought under control
by science such as electrical energy can be achieved by tampering with any apparatus used for
generating or measuring such forces of nature, wrongfully redirecting such forces of nature from
such apparatus, or using any device to fraudulently obtain such forces of nature. In the instant case,
petitioner was charged with engaging in International Simple Resale (ISR) or the unauthorized
routing and completing of international long distance calls using lines, cables, antennae, and/or air
wave frequency and connecting these calls directly to the local or domestic exchange facilities of the
country where destined.
As early as 1910, the Court declared in Genato that ownership over electricity (which an
international long distance call consists of), as well as telephone service, is protected by the
provisions on theft of the Penal Code. The pertinent provision of the Revised Ordinance of the City
of Manila, which was involved in the said case, reads as follows:
Injury to electric apparatus; Tapping current; Evidence. No person shall
destroy, mutilate, deface, or otherwise injure or tamper with any wire, meter, or
other apparatus installed or used for generating, containing, conducting, or
measuring electricity, telegraph or telephone service, nor tap or otherwise
wrongfully deflect or take any electric current from such wire, meter, or other
apparatus.
No person shall, for any purpose whatsoever, use or enjoy the
benefits of any device by means of which he may fraudulently obtain any
current of electricity or any telegraph or telephone service; and the existence in
any building premises of any such device shall, in the absence of satisfactory
explanation, be deemed sufficient evidence of such use by the persons
benefiting thereby.
It was further ruled that even without the above ordinance the acts of subtraction punished therein
are covered by the provisions on theft of the Penal Code then in force, thus:
Even without them (ordinance), the right of the ownership of electric
current is secured by articles 517 and 518 of the Penal Code; the application of
these articles in cases of subtraction of gas, a fluid used for lighting, and in
some respects resembling electricity, is confirmed by the rule laid down in the
decisions of the supreme court of Spain of January 20, 1887, and April 1, 1897,
construing and enforcing the provisions of articles 530 and 531 of the Penal
Code of that country, articles 517 and 518 of the code in force in these islands.
The acts of subtraction include: (a) tampering with any wire, meter, or other apparatus installed or
used for generating, containing, conducting, or measuring electricity, telegraph or telephone service;
(b) tapping or otherwise wrongfully deflecting or taking any electric current from such wire, meter,
or other apparatus; and (c) using or enjoying the benefits of any device by means of which one may
fraudulently obtain any current of electricity or any telegraph or telephone service.
In the instant case, the act of conducting ISR operations by illegally connecting various equipment or
apparatus to private respondent PLDTs telephone system, through which petitioner is able to resell
or re-route international long distance calls using respondent PLDTs facilities constitutes all three
acts of subtraction mentioned above.
The business of providing telecommunication or telephone service is likewise personal property
which can be the object of theft under Article 308 of the Revised Penal Code.Business may be
appropriated under Section 2 of Act No. 3952 (Bulk Sales Law), hence, could be object of theft:
Section 2. Any sale, transfer, mortgage, or assignment of a stock of
goods, wares, merchandise, provisions, or materials otherwise than in the
ordinary course of trade and the regular prosecution of the business of the
vendor, mortgagor, transferor, or assignor, or any sale, transfer, mortgage, or
assignment of all, or substantially all, of the business or trade theretofore
conducted by the vendor, mortgagor, transferor or assignor, or all, or
substantially all, of the fixtures and equipment used in and about the business
of the vendor, mortgagor, transferor, or assignor, shall be deemed to be a sale
and transfer in bulk, in contemplation of the Act. x x x.
In Strochecker v. Ramirez,[12] this Court stated:
With regard to the nature of the property thus mortgaged which is
one-half interest in the business above described, such interest is a personal
property capable of appropriation and not included in the enumeration of real
properties in article 335 of the Civil Code, and may be the subject of mortgage.
Interest in business was not specifically enumerated as personal property in the Civil Code in force
at the time the above decision was rendered. Yet, interest in business was declared to be personal
property since it is capable of appropriation and not included in the enumeration of real
properties. Article 414 of the Civil Code provides that all things which are or may be the object of
appropriation are considered either real property or personal property. Business is likewise not
enumerated as personal property under the Civil Code. Just like interest in business, however, it may
be appropriated. Following the ruling in Strochecker v. Ramirez, business should also be classified
as personal property. Since it is not included in the exclusive enumeration of real properties under
Article 415, it is therefore personal property.[13]
As can be clearly gleaned from the above disquisitions, petitioners acts constitute theft of
respondent PLDTs business and service, committed by means of the unlawful use of the latters
facilities. In this regard, the Amended Information inaccurately describes the offense by making it
appear that what petitioner took were the international long distance telephone calls, rather than
respondent PLDTs business.
A perusal of the records of this case readily reveals that petitioner and respondent PLDT extensively
discussed the issue of ownership of telephone calls. The prosecution has taken the position that said
telephone calls belong to respondent PLDT. This is evident from its Comment where it defined the
issue of this case as whether or not the unauthorized use or appropriation of PLDT international
telephone calls, service and facilities, for the purpose of generating personal profit or gain that
should have otherwise belonged to PLDT, constitutes theft.[14]
In discussing the issue of ownership, petitioner and respondent PLDT gave their respective
explanations on how a telephone call is generated.[15] For its part, respondent PLDT explains the
process of generating a telephone call as follows:
38. The role of telecommunication companies is not limited to
merely providing the medium (i.e. the electric current) through which the
human voice/voice signal of the caller is transmitted. Before the human
voice/voice signal can be so transmitted, a telecommunication company, using
its facilities, must first break down or decode the human voice/voice signal into
electronic impulses and subject the same to further augmentation and
 enhancements. Only after such process of conversion will the resulting
electronic impulses be transmitted by a telecommunication company, again,
through the use of its facilities. Upon reaching the destination of the call, the
telecommunication company will again break down or decode the electronic
impulses back to human voice/voice signal before the called party receives the
same. In other words, a telecommunication company both converts/reconverts
the human voice/voice signal and provides the medium for transmitting the
same.
39. Moreover, in the case of an international telephone call, once the
electronic impulses originating from a foreign telecommunication company
country (i.e. Japan) reaches the Philippines through a local telecommunication
company (i.e. private respondent PLDT), it is the latter which decodes,
augments and enhances the electronic impulses back to the human voice/voice
signal and provides the medium (i.e. electric current) to enable the called party
to receive the call. Thus, it is not true that the foreign telecommunication
company provides (1) the electric current which transmits the human
voice/voice signal of the caller and (2) the electric current for the called party to
receive said human voice/voice signal.
40. Thus, contrary to petitioner Laurels assertion, once the electronic
impulses or electric current originating from a foreign telecommunication
company (i.e. Japan) reaches private respondent PLDTs network, it is private
respondent PLDT which decodes, augments and enhances the electronic
impulses back to the human voice/voice signal and provides the medium (i.e.
electric current) to enable the called party to receive the call. Without private
respondent PLDTs network, the human voice/voice signal of the calling party
will never reach the called party.[16]
In the assailed Decision, it was conceded that in making the international phone calls, the human
voice is converted into electrical impulses or electric current which are transmitted to the party
called. A telephone call, therefore, is electrical energy. It was also held in the assailed Decision that
intangible property such as electrical energy is capable of appropriation because it may be taken and
carried away. Electricity is personal property under Article 416 (3) of the Civil Code, which
enumerates forces of nature which are brought under control by science.[17]
Indeed, while it may be conceded that international long distance calls, the matter alleged to be
stolen in the instant case, take the form of electrical energy, it cannot be said that such international
long distance calls were personal properties belonging to PLDT since the latter could not have
acquired ownership over such calls. PLDT merely encodes, augments, enhances, decodes and
transmits said calls using its complex communications infrastructure and facilities. PLDT not being
the owner of said telephone calls, then it could not validly claim that such telephone calls were taken
without its consent. It is the use of these communications facilities without the consent of PLDT that
constitutes the crime of theft, which is the unlawful taking of the telephone services and business.
Therefore, the business of providing telecommunication and the telephone service are
personal property under Article 308 of the Revised Penal Code, and the act of engaging in ISR is an
act of subtraction penalized under said article. However, the Amended Information describes the
thing taken as, international long distance calls, and only later mentions stealing the business from
PLDT as the manner by which the gain was derived by the accused. In order to correct this
inaccuracy of description, this case must be remanded to the trial court and the prosecution directed
to amend the Amended Information, to clearly state that the property subject of the theft are the
services and business of respondent PLDT. Parenthetically, this amendment is not necessitated by a
mistake in charging the proper offense, which would have called for the dismissal of the information
under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules on Criminal
Procedure. To be sure, the crime is properly designated as one of theft. The purpose of the
amendment is simply to ensure that the accused is fully and sufficiently apprised of the nature and
cause of the charge against him, and thus guaranteed of his rights under the Constitution.
ACCORDINGLY, the motion for reconsideration is GRANTED. The assailed Decision
dated February 27, 2006 is RECONSIDERED and SET ASIDE. The Decision of the Court of
Appeals in CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar of the
Regional Trial Court of Makati City, Branch 150, which denied the Motion to Quash (With Motion
to Defer Arraignment) in Criminal Case No. 99-2425 for theft, is AFFIRMED. The case is
remanded to the trial court and the Public Prosecutor of Makati City is hereby DIRECTED to
amend the Amended Information to show that the property subject of the theft were services and
business of the private offended party.
SO ORDERED.
ARISTOTEL VALENZUELA y G. R. No. 160188 NATIVIDAD,
Petitioner,
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions[1] rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,[2] the last time this Court extensively considered whether an accused
was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.[3] A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v.
IAC.[5] This petition now gives occasion for us to finally and fully measure if or how frustrated theft
is susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information [6] charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft.
On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago
(Lago), a security guard who was then manning his post at the open parking area of the supermarket.
Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching
Unit (RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned
inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramaticand
again unloaded these boxes to the same area in the open parking space.[7]
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons
of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. [8] The filched items seized from the
duo were four (4) cases ofTide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional
cases of detergent, the goods with an aggregate value of P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security office before they were transferred on
the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation.
It appears from the police investigation records that apart from petitioner and Calderon, four (4)
other persons were apprehended by the security guards at the scene and delivered to police custody
at the Baler PNP Station in connection with the incident. However, after the matter was referred to
the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by
the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the
incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May
1994 when they were haled by Lago and his fellow security guards after a commotion and brought to
the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super
Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were eating that they heard the gunshot fired by
Lago, leading them to head out ofthe building to check what was transpiring. As they were outside,
they were suddenly grabbed by a security guard, thus commencing their detention. [12] Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, [13] had been at the
parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-
asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people
at the scene to start running, at which point he was apprehended by Lago and brought to the security
office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time
he and the others were brought to the Baler Police Station. At the station, petitioner denied having
stolen the cartons of detergent, but he was detained overnight, and eventually brought to the
prosecutors office where he was charged with theft.[14]During petitioners cross-examination, he
admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket
though not at SM.[15]
In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.[17] The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused as
perpetrators of the crime.
Both accused filed their respective Notices of Appeal, [18] but only petitioner filed a
brief[19] with the Court of Appeals, causing the appellate court to deem Calderons appeal as
abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he
should only be convicted of frustrated theft since at the time he was apprehended, he was never
placed in a position to freely dispose of the articles stolen. [20] However, in its Decision dated 19 June
2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction. [22] Hence
the present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to
only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value
of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court
of Appeals. The only question to consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites [26] two decisions
rendered many years ago by the Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both
decisions elicit the interest of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this
Court. For whatever reasons, the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a level of
renown reached by very few other appellate court rulings. They are comprehensively discussed in
the most popular of our criminal law annotations,[29] and studied in criminal law classes as textbook
examples of frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios
that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say
that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine
theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having
to exit with the stolen property through a supervised egress, such as a supermarket checkout counter
or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that
lower courts have not hesitated to lay down convictions for frustrated theft further validates
that Dio and Flores and the theories offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct
and should continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the specific issues
relative to frustrated theft, it is necessary to first refer to the basic rules on the three stages of crimes
under our Revised Penal Code.[30]
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A
felony is consummated when all the elements necessary for its execution and accomplishment are
present. It is frustrated when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. Finally, it is attempted when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own spontaneous
desistance.
Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should result in the consummated
crime.[31] After that point has been breached, the subjective phase ends and the objective phase
begins.[32] It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.[33] On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, [s]ubjectively the crime is complete. [34]
Truly, an easy distinction lies between consummated and frustrated felonies on one hand,
and attempted felonies on the other. So long as the offender fails to complete all the acts of
execution despite commencing the commission of a felony, the crime is undoubtedly in the
attempted stage. Since the specific acts of execution that define each crime under the Revised Penal
Code are generally enumerated in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by the accused as against the acts
that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial
concession that all of the acts of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was produced after all the acts of execution had been performed
hinges on the particular statutory definition of the felony. It is the statutory definition that generally
furnishes the elements of each crime under the Revised Penal Code, while the elements in turn
unravel the particular requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important
characteristic of a crime, that ordinarily, evil intent must unite with an unlawful act for there to be a
crime, and accordingly, there can be no crime when the criminal mind is wanting. [35] Accepted in
this jurisdiction as material in crimes mala in se,[36] mens reahas been defined before as a guilty
mind, a guilty or wrongful purpose or criminal intent,[37] and essential for criminal liability.[38] It
follows that the statutory definition of ourmala in se crimes must be able to supply what the mens
rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that
contains no mens rearequirement infringes on constitutionally protected rights. [39] The criminal
statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal
law, it is not enough that mens rea be shown; there must also be an actus reus.[40]
It is from the actus reus and the mens rea, as they find expression in the criminal statute,
that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is
extremely preferable that the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental question whether or not a
crime was committed, thereby presaging the undesirable and legally dubious set-up under which the
judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code
does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage
or term is embeddedwhich attests when the felony is produced by the acts of execution. For example,
the statutory definition of murder or homicide expressly uses the phrase shall kill another, thus
making it clear that the felony is produced by the death of the victim, and conversely, it is not
produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person
who, with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without the latters
consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits
or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field
where trespass is forbidden or which belongs to another
and without the consent of its owner, shall hunt or fish
upon the same or shall gather cereals, or other forest or
farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.[41] In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the
property.
Indeed, we have long recognized the following elements of theft as provided for in Article
308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be
done without the consent of the owner; and (5) that the taking be accomplished without the use of
violence against or intimidation of persons or force upon things. [42]
In his commentaries, Judge Guevarra traces the history of the definition of theft, which
under early Roman law as defined by Gaius, was so broad enough as to encompass any kind of
physical handling of property belonging to another against the will of the owner, [43] a definition
similar to that by Paulus that a thief handles (touches, moves) the property of another. [44] However,
with the Institutes of Justinian, the idea had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This
requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino
penal laws, even as it has since been abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful
taking, to characterize theft. Justice Regalado notes that the concept of apoderamientoonce had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent
to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive
the lawful owner of the thing.[47] However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the taking[48] or an intent to
permanently deprive the owner of the stolen property;[49] or that there was no need for permanency
in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the
proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as Justice
Regalado notes, the Court adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful taking. [51]
So long as the descriptive circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft
would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to
produce theft as a consequence, do not produce [such theft] by reason of causes independent of the
will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not
produced, and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first, however,
relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal
Code[52] as to when a particular felony is not produced, despite the commission of all the acts of
execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft produced. Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law that theft is already
produced upon the tak[ing of] personal property of another without the latters consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to get the merchandise out of the
Custom House, and it appears that he was under observation during the entire transaction. [54] Based
apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the
accused was guilty of consummated theft, finding that all the elements of the completed crime of
theft are present.[55] In support of its conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a policeman,
yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did not err [x x x ] in
considering the crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the policemen who saw
the accused take the fruit from the adjoining land arrested him in the act and
thus prevented him from taking full possession of the thing stolen and even its
utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter
was hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party got
back the money from the defendant. The court said that the defendant had
performed all the acts of execution and considered the theft as consummated.
(Decision of the Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by
means of a key opened up a case, and from the case took a small box, which
was also opened with a key, from which in turn he took a purse containing 461
reales and 20 centimos, and then he placed the money over the cover of the
case; just at this moment he was caught by two guards who were stationed in
another room near-by. The court considered this as consummated robbery, and
said: "[x x x] The accused [x x x] having materially taken possession of the
money from the moment he took it from the place where it had been, and
having taken it with his hands with intent to appropriate the same, he executed
all the acts necessary to constitute the crime which was thereby produced; only
the act of making use of the thing having been frustrated, which, however, does
not go to make the elements of the consummated crime." (Decision of the
Supreme Court of Spain, June 13, 1882.)[56]
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was consummated
by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman. [58] In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded
in taking the pocket-book, and that determines the crime of theft. If the
pocket-book was afterwards recovered, such recovery does not affect the
[accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the
position of petitioner in this case. Yet to simply affirm without further comment would be
disingenuous, as there is another school of thought on when theft is consummated, as reflected in
the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years
before Flores. The accused therein, a driver employed by the United States Army, had driven his
truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army
personnel. After he had finished unloading, accused drove away his truck from the Port, but as he
was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the
truck and found therein three boxes of army rifles. The accused later contended that he had been
stopped by four men who had loaded the boxes with the agreement that they were to meet him and
retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals modified the conviction, holding instead that only
frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let
the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking.[60] This point was deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals pronounced that the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more
or less momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court
of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto
del delito de hurto, no puede decirse en realidad que se haya producido en toda su
extension, sin materializar demasiado el acto de tomar la cosa ajena. [62]
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make
the booty subject to the control and disposal of the culprits, the articles stolen
must first be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution had
been performed, but before the loot came under the final control and disposal of
the looters, the offense can not be said to have been fully consummated, as it
was frustrated by the timely intervention of the guard. The offense committed,
therefore, is that of frustrated theft.[63]
Dio thus laid down the theory that the ability of the actor to freely dispose of the items
stolen at the time of apprehension is determinative as to whether the theft is consummated or
frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a
case which according to the division of the court that decided it, bore no substantial variance
between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts
in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a
delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea
van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show
the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on
inspecting the van, and discovered that the empty sea van had actually contained other merchandise
as well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft.
However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only
of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found no substantial variance
between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case
from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself.
However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words
is placed in a situation where [the actor] could dispose of its contents at once. [66] Pouncing on this
qualification, the appellate court noted that [o]bviously, while the truck and the van were still within
the compound, the petitioner could not have disposed of the goods at once. At the same time, the
Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and
more common thing as money was the object of the crime, where freedom to dispose of or make use
of it is palpably less restricted,[67] though no further qualification was offered what the effect would
have been had that alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to
whether the crime of theft was produced is the ability of the actor to freely dispose of the articles
stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining whether theft had been
consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella,
siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos
momentaneamente proves another important consideration, as it implies that if the actor was in a
capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed
consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both
cases were retrieved from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied inFlores, the character of the
item stolen could lead to a different conclusion as to whether there could have been free disposition,
as in the case where the chattel involved was ofmuch less bulk and more common x x x, [such] as
money x x x.[68]
In his commentaries, Chief Justice Aquino makes the following pointed observation on
the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated
when the thief is able to freely dispose of the stolen articles even if it were
more or less momentary. Or as stated in another case[ [69]], theft is consummated
upon the voluntary and malicious taking of property belonging to another
which is realized by the material occupation of the thing whereby the thief
places it under his control and in such a situation that he could dispose of it at
once. This ruling seems to have been based on Viadas opinion that in order the
theft may be consummated, es preciso que se haga en circumstancias x x x [[70]
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases,
also states that [i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated.[72]
There are at least two other Court of Appeals rulings that are at seeming variance with
the Dio and Flores rulings. People v. Batoon[73] involved an accused who filled a container with
gasoline from a petrol pump within view of a police detective, who followed the accused onto a
passenger truck where the arrest was made. While the trial court found the accused guilty of
frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated
qualified theft, finding that [t]he facts of the cases ofU.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x
x indicate that actual taking with intent to gain is enough to consummate the crime of theft. [74]
In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the
stolen items were discovered by the Military Police running the checkpoint. Even though those facts
clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty
of consummated theft, as the accused were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense.[76]
 In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that
[w]hen the meaning of an element of a felony is controversial, there is bound to arise different
rulings as to the stage of execution of that felony. [77] Indeed, we can discern from this survey of
jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact,
given the disputed foundational basis of the concept of frustrated theft itself, the question can even
be asked whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts
1984 decision in Empelis v. IAC.[78]
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in
the premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently
arrested after the owner reported the incident to the police. After trial, the accused were convicted of
qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The
Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but
further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear, though, is that the
disposition of that issue was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft
because petitioners were not able to perform all the acts of execution which
should have produced the felony as a consequence. They were not able to carry
the coconuts away from the plantation due to the timely arrival of the owner.[80]
No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated because the actors were not able to perform all the
acts of execution which should have produced the felon as a consequence.[81] However, per Article 6
of the Revised Penal Code, the crime is frustrated when the offender performs all the acts of
execution, though not producing the felony as a result. If the offender was not able to perform all the
acts of execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than spontaneous
desistance. Empelis concludes that the crime was frustrated because not all of the acts of execution
were performed due to the timely arrival of the owner. However, following Article 6 of the Revised
Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially
given that the acts were not performed because of the timely arrival of the owner, and not because of
spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on
theft. Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare
fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft.
Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then
in place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni
fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su
dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la
apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao
causado, salvo los casos previstos en los artίculos 606, nm. 1.0; 607, nms,
1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme
Court decisions were handed down. However, the said code would be revised again in 1932, and
several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now
simply defined as [e]l que, con nimo de lucro, tomare las cosas muebles ajenas sin la voluntad de su
dueo ser castigado[82]
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre
disposicion of the property is not an element or a statutory characteristic of the crime. It does appear
that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries
on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader
whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was
actually utilized by Viada to answer the question whether frustrated or consummated theft was
committed [e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la
arroja al suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement
was apparently very different from Dio, for it appears that the 1888 decision involved an accused
who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled.[84]
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites
decisions of the Supreme Court of Spain that have held to that effect.[85] A few decades later, the
esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme
Court with respect to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro que
tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la
intervencin de la policia situada en el local donde se realiz la sustraccin que
impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por
lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a
disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el
culpable es detenido por el perjudicado acto seguido de cometer la sustraccin,
28 febrero 1931. Algunos fallos han considerado la existencia de frustracin
cuando, perseguido el culpable o sorprendido en el momento de llevar los
efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo
1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son
hurtos consumados.[86]
Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposicin del agente. Con este
criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola
que generalmente considera consumado el hurto cuando el culpable coge o
aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su
poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es
indiferente. El delito no pierde su carcter de consumado aunque la cosa
hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la
frustracin, pues es muy dificil que el que hace cuanto es necesario para la
consumacin del hurto no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son
verdaderos delitos consumados.[87] (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with
replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his
own thought that questioned whether theft could truly be frustrated, since pues es muy dificil que el
que hace cuanto es necesario para la consumacin delhurto no lo consume efectivamente. Otherwise
put, it would be difficult to foresee how the execution of all the acts necessary for the completion of
the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in
scholarly thought that obliges us to accept frustrated theft, as proposed in Dio andFlores. A final
ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to
scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the
question from a fresh perspective, as we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated
stage. Further, if we ask the question whether there is a mandate of statute or precedent that must
compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of judicial review, and a function
that allows breathing room for a variety of theorems in competition until one is ultimately adopted
by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the
province of the legislature, through statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which
acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be
aligned with what was the evident legislative intent, as expressed primarily in the language of the
law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a new element of a crime which
was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory
language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a narrow interpretation is
appropriate. The Court must take heed of language, legislative history and purpose, in order to
strictly determine the wrath and breath of the conduct the law forbids. [89]
With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of
the offender to freely dispose of the property stolen is not a constitutive element of the crime of
theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of
theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held:
the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1)
that there be taking of personal property; (2) that said property belongs to another; (3) that the taking
be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that
the taking be accomplished without the use of violence against or intimidation of persons or force
upon things.[90]
Such factor runs immaterial to the statutory definition of theft, which is the taking, with
intent to gain, of personal property of another without the latters consent. While
theDio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft
considers only the perspective of intent to gain on the part of the offender, compounded by the
deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the
frustrated stage, the question is again, when is the crime of theft produced? There would be all but
certain unanimity in the position that theft is produced when there is deprivation of personal property
due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the
product of the felony that the offender, once having committed all the acts of execution for theft, is
able or unable to freely dispose of the property stolen since the deprivation from the owner alone has
already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos
commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused
had material possession of the thing with intent to appropriate the same, although his act of making
use of the thing was frustrated.[91]
It might be argued, that the ability of the offender to freely dispose of the property stolen
delves into the concept of taking itself, in that there could be no true taking until the actor obtains
such degree of control over the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts
of execution have not been completed, the taking not having been accomplished. Perhaps this point
could serve as fertile ground for future discussion, but our concern now is whether there is indeed a
crime of frustrated theft, and such consideration proves ultimately immaterial to that question.
Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond
reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he
acquired physical possession of the stolen cases of detergent for a considerable period of time that he
was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.
 Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he has no opportunity
to dispose of the same.[92] And long ago, we asserted in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime of theft is the taking of the
thing to be appropriated into the physical power of the thief, which idea is
qualified by other conditions, such as that the taking must be effected animo
lucrandi and without the consent of the owner; and it will be here noted that the
definition does not require that the taking should be effected against the will of
the owner but merely that it should be without his consent, a distinction of no
slight importance.[94]
Insofar as we consider the present question, unlawful taking is most material in this
respect. Unlawful taking, which is the deprivation of ones personal property, is the element which
produces the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of the Revised
Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the
offenders therein obtained possession over the stolen items, the effect of the felony has been
produced as there has been deprivation of property. The presumed inability of the offenders to freely
dispose of the stolen property does not negate the fact that the owners have already been deprived of
their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the
offender to freely dispose of the stolen property frustrates the theft would introduce a convenient
defense for the accused which does not reflect any legislated intent, [95] since the Court would have
carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do
not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item
is susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as the
size and weight of the property, the location of the property, the number and identity of people
present at the scene of the crime, the number and identity of people whom the offender is expected
to encounter upon fleeing with the stolen property, the manner in which the stolen item had been
housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen
item would come into account, relevant as that would be on whether such property is capable of free
disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful
detail, the owner was indeed deprived of property by one who intended to produce such deprivation
for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been performed.
But once all these acts have been executed, the taking has been completed, causing the unlawful
deprivation of property, and ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they
do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions
on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the free disposition of the items stolen
is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely
on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately
content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare
decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible
to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found
favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft.
As petitioner has latched the success of his appeal on our acceptance of the Dioand Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code
does not detract from the correctness of this conclusion. It will take considerable amendments to our
Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields
to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
MALACAÑANG
Manila
PRESIDENTIAL DECREE No. 1612
ANTI-FENCING LAW OF 1979
WHEREAS, reports from law enforcement agencies reveal that there is rampant robbery and
thievery of government and private properties;
WHEREAS, such robbery and thievery have become profitable on the part of the lawless elements
because of the existence of ready buyers, commonly known as fence, of stolen properties;lawphil.net
WHEREAS, under existing law, a fence can be prosecuted only as an accessory after the fact and
punished lightly;
WHEREAS, is imperative to impose heavy penalties on persons who profit by the effects of the
crimes of robbery and theft.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested in me by the Constitution, do hereby order and decree as part of the law of the land
the following:
Section 1. Title. This decree shall be known as the Anti-Fencing Law.
Section 2. Definition of Terms. The following terms shall mean as follows:
(a) "Fencing" is the act of any person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell,
or in any other manner deal in any article, item, object or anything of value which he
knows, or should be known to him, to have been derived from the proceeds of the crime
of robbery or theft.
 (b) "Fence" includes any person, firm, association corporation or partnership or other
organization who/which commits the act of fencing.
Section 3. Penalties. Any person guilty of fencing shall be punished as hereunder indicated:
(a) The penalty of prision mayor, if the value of the property involved is more than 12,000
pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos; but the total penalty which may be imposed
shall not exceed twenty years. In such cases, the penalty shall be termed reclusion
temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code
shall also be imposed.
(b) The penalty of prision correccional in its medium and maximum periods, if the value
of the property robbed or stolen is more than 6,000 pesos but not exceeding 12,000 pesos.
(c) The penalty of prision correccional in its minimum and medium periods, if the value
of the property involved is more than 200 pesos but not exceeding 6,000 pesos.
(d) The penalty of arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property involved is over 50 pesos but not exceeding
200 pesos.
(e) The penalty of arresto mayor in its medium period if such value is over five (5) pesos
but not exceeding 50 pesos.
(f) The penalty of arresto mayor in its minimum period if such value does not exceed 5
pesos.
Section 4. Liability of Officials of Juridical Persons. If the fence is a partnership, firm, corporation
or association, the president or the manager or any officer thereof who knows or should have known
the commission of the offense shall be liable.
Section 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything
of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.
Section 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act, all stores,
establishments or entities dealing in the buy and sell of any good, article item, object of anything of
value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale
to the public, secure the necessary clearance or permit from the station commander of the Integrated
National Police in the town or city where such store, establishment or entity is located. The Chief of
Constabulary/Director General, Integrated National Police shall promulgate such rules and
regulations to carry out the provisions of this section. Any person who fails to secure the clearance
or permit required by this section or who violates any of the provisions of the rules and regulations
promulgated thereunder shall upon conviction be punished as a fence. lawphi1.net
Section 7. Repealing Clause. All laws or parts thereof, which are inconsistent with the provisions of
this Decree are hereby repealed or modified accordingly.
Section 8. Effectivity. This Decree shall take effect upon approval.
Done in the City of Manila, this 2nd day of March, in the year of Our Lord, nineteen hundred and
seventy-nine.
RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF SECTION 6 OF
PRESIDENTIAL DECREE NO. 1612, KNOWN AS THE ANTI-FENCING LAW.
Pursuant to Section 6 of Presidential Decree No. 1612, known as the Anti-Fencing Law, the
following rules and regulations are hereby promulgated to govern the issuance of clearances/permits
to sell used secondhand articles obtained from an unlicensed dealer or supplier thereof:
I. Definition of Terms
1. "Used secondhand article" shall refer to any goods, article, item, object or anything of
value obtained from an unlicensed dealer or supplier, regardless of whether the same has
actually or in fact been used.
2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation,
association or any other entity or establishment not licensed by the government to engage
in the business of dealing in or of supplying the articles defined in the preceding
paragraph.
3. "Store", "establishment" or "entity" shall be construed to include any individual dealing
in the buying and selling used secondhand articles, as defined in paragraph hereof.
4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles
for the purpose of resale to third persons.
5. "Station Commander" shall refer to the Station Commander of the Integrated National
Police within the territorial limits of the town or city district where the store,
establishment or entity dealing in the buying and selling of used secondhand articles is
located.
II. Duty to Procure Clearance or Permit
1. No person shall sell or offer to sell to the public any used secondhand article as defined
herein without first securing a clearance or permit for the purpose from the proper Station
Commander of the Integrated National Police.
2. If the person seeking the clearance or permit is a partnership, firm, corporation, or
association or group of individuals, the clearance or permit shall be obtained by or in the
name of the president, manager or other responsible officer-in-charge thereof.
3. If a store, firm, corporation, partnership, association or other establishment or entity has
a branch or subsidiary and the used secondhand article is acquired by such branch or
subsidiary for sale to the public, the said branch or subsidiary shall secure the required
clearance or permit.
4. Any goods, article, item, or object or anything of value acquired from any source for
which no receipt or equivalent document evidencing the legality of its acquisition could
be presented by the present possessor or holder thereof, or the covering receipt, or
equivalent document, of which is fake, falsified or irregularly obtained, shall be presumed
 as having been acquired from an unlicensed dealer or supplier and the possessor or holder
thereof must secure the required clearance or permit before the same can be sold or
offered for sale to the public.
III. Procedure for Procurement of Clearances or Permits
1. The Station Commanders concerned shall require the owner of a store or the president,
manager or responsible officer-in-charge of a firm, establishment or other entity located
within their respective jurisdictions and in possession of or having in stock used
secondhand articles as defined herein, to submit an initial affidavit within thirty (30) days
from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen
(15) days within five (5) days after the period covered, which shall contain:
(a) A complete inventory of such articles acquired daily from whatever source
and the names and addresses of the persons from whom such articles were
acquired.
(b) A full list of articles to be sold or offered for sale as well as the place where
the date when the sale or offer for sale shall commence.
(c) The place where the articles are presently deposited or kept in stock.
The Station Commander may, at his discretion when the circumstances of each case
warrant, require that the affidavit submitted be accompanied by other documents showing
proof of legitimacy of the acquisition of the articles.
2. A party required to secure a clearance or permit under these rules and regulations shall
file an application therefor with the Station Commander concerned. The application shall
state:
(a) The name, address and other pertinent circumstances of the persons, in case
of an individual or, in the case of a firm, corporation, association, partnership or
other entity, the name, address and other pertinent circumstances of the
president, manager or officer-in-charge.
(b) The article to be sold or offered for sale to the public and the name and
address of the unlicensed dealer or supplier from whom such article was
acquired.
In support of the application, there shall be attached to it the corresponding receipt or
other equivalent document to show proof of the legitimacy of acquisition of the article.
3. The Station Commander shall examine the documents attached to the application and
may require the presentation of other additional documents, if necessary, to show
satisfactory proof of the legitimacy of acquisition of the article, subject to the following
conditions:
(a) If the legitimacy of acquisition of any article from an unlicensed source
cannot be satisfactorily established by the documents presented, the Station
Commander shall, upon approval of the INP Superintendent in the district and
at the expense of the party seeking the clearance/permit, cause the publication
of a notice in a newspaper of general circulation for two (2) successive days
enumerating therein the articles acquired from an unlicensed dealer or supplier,
the names and addresses of the persons from whom they were acquired and
shall state that such articles are to be sold or offered for sale to the public at the
address of the store, establishment or other entity seeking the clearance/permit.
In places where no newspapers are in general circulation, the party seeking the
clearance or permit shall, instead, post a notice daily for one week on the
bulletin board of the municipal building of the town where the store, firm,
establishment or entity concerned is located or, in the case of an individual,
where the articles in his possession are to be sold or offered for sale.
(b) If after 15 days, upon expiration of the period of publication or of the notice
referred to in the preceding paragraph, no claim is made with respect to any of
the articles enumerated in the notice, the Station Commander shall issue the
clearance or permit sought.
(c) If, before expiration of the same period for publication of the notice or its
posting, it shall appear that any of the articles in question is stolen property, the
Station Commander shall hold the article in restraint as evidence in any
appropriate case to be filed. Articles held in restraint shall be kept and disposed
of as the circumstances of each case permit, taking into account all
considerations of right and justice in the case. In any case where any article is
held in restraint, it shall be the duty of the Station Commander concerned to
advise/notify the Commission on Audit of the case and comply with such
procedure as may be proper under applicable existing laws, rules and
regulations.
4. The Station Commander concerned shall, within seventy-two (72) hours from receipt of
the application, act thereon by either issuing the clearance/permit requested or denying the
same. Denial of an application shall be in writing and shall state in brief the reason/s
therefor.
5. The application, clearance/permit or the denial thereof, including such other documents
as may be pertinent in the implementation of Section 6 of P.D. No. 1612 shall be in the
forms prescribed in Annexes "A", "B", "C", "D", and "E" hereof, which are made integral
parts of these rules and regulations.
6. For the issuance of clearances/permit required under Section 6 of P.D. No. 1612, no fee
shall be charged.
IV. Appeals
Any party aggrieved by the action taken by the Station Commander may elevate the decision taken
in the case to the proper INP District Superintendent and, if he is still dissatisfied therewith may take
the same on appeal to the INP Director. The decision of the INP Director may also be appealed to
the INP Director-General whose decision may likewise be appealed to the Minister of National
Defense. The decision of the Minister of National Defense on the case shall be final. The appeal
against the decision taken by a Commander lower than the INP Director-General should be filed to
the next higher Commander within ten (10) days from receipt of notice of the decision. The decision
of the INP Director-General should be appealed within fifteen (15) days from receipt of notice of the
decision.
V. Penalties
 1. Any person who fails to secure the clearance or permit required by Section 6 of P.D.
1612 or who violates any of the provisions of these rules and regulations shall upon
conviction be punished as a fence.
2. The INP Director-General shall recommend to the proper authority the cancellation of
the business license of the erring individual, store, establishment or the entity concerned.
3. Articles obtained from unlicensed sources for sale or offered for sale without prior
compliance with the provisions of Section 6 of P.D. No. 1612 and with these rules and
regulations shall be held in restraint until satisfactory evidence or legitimacy of
acquisition has been established.
4. Articles for which no satisfactory evidence of legitimacy of acquisition is established
and which are found to be stolen property shall likewise be held under restraint and shall,
furthermore, be subject to confiscation as evidence in the appropriate case to be filed. If,
upon termination of the case, the same is not claimed by their legitimate owners, the
article/s shall be forfeited in favor of the government and made subject to disposition as
the circumstances warrant in accordance with applicable existing laws, rules and
regulations. The Commission on Audit shall, in all cases, be notified.
5. Any personnel of the Integrated National Police found violating the provisions of
Section 6 of P.D. No. 1612 or any of its implementing rules and regulations or who, in
any manner whatsoever, connives with or through his negligence or inaction makes
possible the commission of such violations by any party required to comply with the law
and its implementing rules and regulations, shall be prosecuted criminally without
prejudice to the imposition of administrative penalties.
VI. Visitorial Power
It shall be the duty of the owner of the store or of the president, manager or responsible officer-in-
charge of any firm, establishment or other entity or of an individual having in his premises articles to
be sold or offered for sale to the public to allow the Station Commander or his authorized
representative to exercise visitorial powers. For this purpose, however, the power to conduct
visitations shall be exercise only during office or business hours and upon authority in writing from
and by the INP Superintendent in the district and for the sole purpose of determining whether articles
are kept in possession or stock contrary to the intents of Section 6 of P.D. No. 1612 and of these
rules and regulations.
VII. Other Duties Imposed Upon Station Commanders and INP District Superintendent and
Directors Following Action on Applications for Clearances or Permits
1. At the end of each month, it shall be the duty of the Station Commander concerned to:
(a) Make and maintain a file in his office of all clearances/permit issued by
him.
(b) Submit a full report to the INP District Superintendent on the number of
applications for clearances or permits processed by his office, indicating therein
the number of clearances/permits issued and the number of applications denied.
The report shall state the reasons for denial of an application and the
corresponding follow-up actions taken and shall be accompanied by an
inventory of the articles to be sold or offered for sale in his jurisdiction.
2. The INP District Superintendent shall, on the basis of the reports submitted by the
Station Commander, in turn submit quarterly reports to the appropriate INP Director
containing a consolidation of the information stated in the reports of Station Commanders
in his jurisdiction.
3. Reports from INP District Superintendent shall serve as basis for a consolidated report
to be submitted semi-annually by INP Directors to the Director-General, Integrated
National Police.
4. In all cases, reports emanating from the different levels of the Integrated National
Police shall be accompanied with full and accurate inventories of the articles acquired
from unlicensed dealers or suppliers and proposed to be sold or offered for sale in the
jurisdictions covered by the report.
These implementing rules and regulations, having been published in a newspaper of national
circulation, shall take effect on June 15, 1979.
FOR THE CHIEF OF CONSTABULARY DIRECTOR-GENERAL, INP:
G.R. No. 190475 April 10, 2013
JAIME ONG y ONG, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, CJ.:
Before the Court is an appeal from the Decision1 dated 18 August 2009 of the Court of Appeals
(CA), which affirmed the Decision2 dated 06 January 2006 of the Regional Trial Court (RTC),
Branch 37, Manila. The RTC had convicted accused Jaime Ong y Ong (Ong) of the crime of
violation of Presidential Decree No. (P.O.) 1612, otherwise known as. the Anti-Fencing Law.
Ong was charged in an Information3 dated 25 May 1995 as follows:
That on or about February 17, 1995, in the City of Manila, Philippines. the said accused, with intent
of gain for himself or for another. did then and there willfully, unlawfully and feloniously receive
and acquire from unknown person involving thirteen (13) truck tires worth P65, 975.00, belonging to
FRANCISCO AZAJAR Y LEE, and thereafter selling One (1) truck tire knowing the same to have
been derived from the crime of robbery.
CONTRARY TO LAW.
Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits ensued, and the RTC found
him guilty beyond reasonable doubt of violation of P.D. 1612. The dispositive portion of its Decision
reads:
WHEREFORE, premises considered, this Court finds that the prosecution has established the guilt
of the accused JAIME ONG y ONG beyond reasonable doubt for violation of Presidential Decree
No. 1612 also known as Anti-Fencing Law and is hereby sentenced to suffer the penalty of
imprisonment of 10 years and 1 day to 16 years with accessory penalty of temporary
disqualification.
SO ORDERED.4
Dissatisfied with the judgment, Ong appealed to the CA. After a review of the records, the RTC’s
finding of guilt was affirmed by the appellate court in a Decision dated 18 August 2009.
Ong then filed the instant appeal before this Court.
The Facts
The version of the prosecution, which was supported by the CA, is as follows:
Private complainant was the owner of forty-four (44) Firestone truck tires, described as T494 1100
by 20 by 14. He acquired the same for the total amount of P223,401.81 from Philtread Tire and
Rubber Corporation, a domestic corporation engaged in the manufacturing and marketing of
Firestone tires. Private complainant's acquisition was evidenced by Sales Invoice No. 4565 dated
November 10, 1994 and an Inventory List acknowledging receipt of the tires specifically described
by their serial numbers. Private complainant marked the tires using a piece of chalk before storing
them inside the warehouse in 720 San Jose St., corner Sta. Catalina St., Barangay San Antonio
Valley 1, Sucat, Parañaque, owned by his relative Teody Guano. Jose Cabal, Guano's caretaker of
the warehouse, was in charge of the tires. After appellant sold six (6) tires sometime in January
1995, thirty-eight (38) tires remained inside the warehouse.
On February 17, 1995, private complainant learned from caretaker Jose Cabal that all thirty-eight
(38) truck tires were stolen from the warehouse, the gate of which was forcibly opened. Private
complainant, together with caretaker Cabal, reported the robbery to the Southern Police District at
Fort Bonifacio.
Pending the police investigation, private complainant canvassed from numerous business
establishments in an attempt to locate the stolen tires. On February 24, 1995, private complainant
chanced upon Jong's Marketing, a store selling tires in Paco, Manila, owned and operated by
appellant. Private complainant inquired if appellant was selling any Model T494 1100 by 20 by 14
ply Firestone tires, to which the latter replied in the affirmative. Appellant brought out a tire fitting
the description, which private complainant recognized as one of the tires stolen from his warehouse,
based on the chalk marking and the serial number thereon. Private complainant asked appellant if he
had any more of such tires in stock, which was again answered in the affirmative. Private
complainant then left the store and reported the matter to Chief Inspector Mariano Fegarido of the
Southern Police District.
On February 27, 1995, the Southern Police District formed a team to conduct a buy-bust operation
on appellant's store in Paco, Manila. The team was composed of six (6) members, led by SPO3
Oscar Guerrero and supervised by Senior Inspector Noel Tan. Private complainant's companion Tito
Atienza was appointed as the poseur-buyer.
On that same day of February 27, 1995, the buy-bust team, in coordination with the Western Police
District, proceeded to appellant's store in Paco, Manila. The team arrived thereat at around 3:00 in
the afternoon. Poseur-buyer Tito Atienza proceeded to the store while the rest of the team posted
themselves across the street. Atienza asked appellant if he had any T494 1100 by 20 by 14 Firestone
truck tires available. The latter immediately produced one tire from his display, which Atienza
bought for P5,000.00. Atienza asked appellant if he had any more in stock.
Appellant then instructed his helpers to bring out twelve (12) more tires from his warehouse, which
was located beside his store. After the twelve (12) truck tires were brought in, private complainant
entered the store, inspected them and found that they were the same tires which were stolen from
him, based on their serial numbers. Private complainant then gave the prearranged signal to the buy-
bust team confirming that the tires in appellant's shop were the same tires stolen from the warehouse.
After seeing private complainant give the pre-arranged signal, the buy-bust team went inside
appellant's store. However, appellant insisted that his arrest and the confiscation of the stolen truck
tires be witnessed by representatives from the barangay and his own lawyer. Resultantly, it was
already past 10:00 in the evening when appellant, together with the tires, was brought to the police
station for investigation and inventory. Overall, the buy-bust team was able to confiscate thirteen
(13) tires, including the one initially bought by poseur-buyer Tito Atienza. The tires were confirmed
by private complainant as stolen from his warehouse. 5
For his part, accused Ong solely testified in his defense, alleging that he had been engaged in the
business of buying and selling tires for twenty-four (24) years and denying that he had any
knowledge that he was selling stolen tires in Jong Marketing. He further averred that on 18 February
1995, a certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck tires allegedly from
Dagat-dagatan, Caloocan City, for P3,500 each. Ong bought all the tires for P45,500, for which he
was issued a Sales Invoice dated 18 February 1995 and with the letterhead Gold Link Hardware &
General Merchandise (Gold Link).6
Ong displayed one (1) of the tires in his store and kept all the twelve (12) others in his bodega. The
poseur-buyer bought the displayed tire in his store and came back to ask for more tires. Ten minutes
later, policemen went inside the store, confiscated the tires, arrested Ong and told him that those
items were stolen tires.7
The RTC found that the prosecution had sufficiently established that all thirteen (13) tires found in
the possession of Ong constituted a prima facie evidence of fencing. Having failed to overcome the
presumption by mere denials, he was found guilty beyond reasonable doubt of violation of P.D.
1612.8
On appeal, the CA affirmed the RTC’s findings with modification by reducing the minimum penalty
from ten (10) years and one (1) day to six (6) years of prision correcional. 9
OUR RULING
The Petition has no merit.
Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or anything of value which he knows,
or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."
The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has
been committed; (2) the accused, who is not a principal or on accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any article, item, object or anything of value, which has
been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have
known that the said article, item, object or anything of value has been derived from the proceeds of
the crime of robbery or theft; and (4) there is, on the part of one accused, intent to gain for oneself or
for another.10
We agree with the RTC and the CA that the prosecution has met the requisite quantum of evidence
in proving that all the elements of fencing are present in this case.
First, the owner of the tires, private complainant Francisco Azajar (Azajar), whose testimony was
corroborated by Jose Cabal - the caretaker of the warehouse where the thirty-eight (38) tires were
stolen – testified that the crime of robbery had been committed on 17 February 1995. Azajar was
able to prove ownership of the tires through Sales Invoice No. 4565 11 dated 10 November 1994 and
an Inventory List.12 Witnesses for the prosecution likewise testified that robbery was reported as
evidenced by their Sinumpaang Salaysay13 taken at the Southern Police District at Fort
Bonifacio.14 The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila
on 27 February 1995.
Second, although there was no evidence to link Ong as the perpetrator of the robbery, he never
denied the fact that thirteen (13) tires of Azajar were caught in his possession. The facts do not
establish that Ong was neither a principal nor an accomplice in the crime of robbery, but thirteen
(13) out of thirty-eight (38) missing tires were found in his possession. This Court finds that the
serial numbers of stolen tires corresponds to those found in Ong’s possession. 15 Ong likewise
admitted that he bought the said tires from Go of Gold Link in the total amount of ₱45,500 where he
was issued Sales Invoice No. 980.16
Third, the accused knew or should have known that the said article, item, object or anything of value
has been derived from the proceeds of the crime of robbery or theft. The words "should know"
denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in
performance of his duty to another or would govern his conduct upon assumption that such fact
exists.17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24)
years,18 ought to have known the ordinary course of business in purchasing from an unknown seller.
Admittedly, Go approached Ong and offered to sell the thirteen (13) tires and he did not even ask for
proof of ownership of the tires.19 The entire transaction, from the proposal to buy until the delivery
of tires happened in just one day.20 His experience from the business should have given him doubt as
to the legitimate ownership of the tires considering that it was his first time to transact with Go and
the manner it was sold is as if Go was just peddling the thirteen (13) tires in the streets.
21
In Dela Torre v. COMELEC, this Court had enunciated that:
Circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of
the sale may have been derived from the proceeds of robbery or theft. Such circumstances include
the time and place of the sale, both of which may not be in accord with the usual practices of
commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly
engaged in the business of selling goods may likewise suggest the illegality of their source, and
therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No.
1612 that "mere possession of any goods, . . ., object or anything of value which has been the subject
of robbery or thievery shall be prima facie evidence of fencing" — a presumption that is, according
to the Court, "reasonable for no other natural or logical inference can arise from the established fact
of . . . possession of the proceeds of the crime of robbery or theft." xxx. 22
Moreover, Ong knew the requirement of the law in selling second hand tires.1âwphi1 Section 6 of
P.D. 1612 requires stores, establishments or entities dealing in the buying and selling of any good,
article, item, object or anything else of value obtained from an unlicensed dealer or supplier thereof
to secure the necessary clearance or permit from the station commander of the Integrated National
Police in the town or city where that store, establishment or entity is located before offering the item
for sale to the public. In fact, Ong has practiced the procedure of obtaining clearances from the
police station for some used tires he wanted to resell but, in this particular transaction, he was remiss
in his duty as a diligent businessman who should have exercised prudence.
In his defense, Ong argued that he relied on the receipt issued to him by Go.1âwphi1 Logically, and
for all practical purposes, the issuance of a sales invoice or receipt is proof of a legitimate transaction
and may be raised as a defense in the charge of fencing; however, that defense is disputable.23 In this
case, the validity of the issuance of the receipt was disputed, and the prosecution was able to prove
that Gold Link and its address were fictitious.24 Ong failed to overcome the evidence presented by
the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the
prima facie presumption under Section 5 of P.D. 1612.
Finally, there was evident intent to gain for himself, considering that during the buy-bust operation,
Ong was actually caught selling the stolen tires in his store, Jong Marketing.
Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumption of fencing from
evidence of possession by the accused of any good, article, item, object or anything of value, which
has been the subject of robbery or theft; and prescribes a higher penalty based on the value of
the 25 property.
The RTC and the CA correctly computed the imposable penalty based on P5,075 for each tire
recovered, or in the total amount of P65,975. Records show that Azajar had purchased forty-four
(44) tires from Philtread in the total amount of P223,40 1.81.26 Section 3 (p) of Rule 131 of the
Revised Rules of Court provides a disputable presumption that private transactions have been fair
and regular. Thus, the presumption of regularity in the ordinary course of business is not overturned
in the absence of the evidence challenging the regularity of the transaction between Azajar ,and Phil
tread.
In tine, after a careful perusal of the records and the evidence adduced by the parties, we do not find
sufficient basis to reverse the ruling of the CA affirming the trial court's conviction of Ong for
violation of P.D. 1612 and modifying the minimum penalty imposed by reducing it to six ( 6) years
of prision correccional.
WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the
assailed Decision of the Court of Appeals in CA-G.R. CR No. 30213 is hereby AFFIRMED.
SO ORDERED.
[G.R. No. 146584. July 12, 2004]
ERNESTO FRANCISCO y SPENOCILLA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is an appeal via a petition for review on certiorari of the Decision[1] of the Court of
Appeals in CA-G.R. CR No. 19110 affirming the Decision[2] of the Regional Trial Court of Malolos,
Bulacan, Branch 22, finding petitioner Ernesto Francisco guilty of violating Presidential Decree No.
1612, otherwise known as the Anti-Fencing Law, sentencing him to suffer the penalty of ten (10)
years and one (1) day of prision mayor maximum, as minimum, to twenty (20) years of reclusion
temporal maximum, as maximum, with the accessory penalties corresponding to the latter, and to
pay the corresponding value of the subject pieces of jewelry.
The Indictment
The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23,
1993, the accusatory portion of which reads:
That in or about the month of November 1991, in the municipality of Meycauayan, Province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto
Francisco y Spenocilla, with intent to gain for himself, did then and there wil[l]fully, unlawfully and
feloniously buy, receive, possess and acquire from one Pacita Linghon y Liza, not the owner, several
pieces of jewelry, to wit:
One (1) pair of earrings (Heart Shape) --- P 400,000.00
One (1) White Gold Bracelet ---- 150,000.00
One (1) Diamond Ring ---- 100,000.00
One (1) Ring with Diamond ---- 5,000.00
with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows, or
should be known to him, to have been derived from the proceeds of the crime of robbery or theft.
Contrary to law.[3]
The petitioner was arraigned, with the assistance of counsel, and entered a plea of not
guilty. Trial forthwith ensued.
The Case for the Prosecution
Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal.[4] She was
engaged in business as a general contractor under the business name J.C. Rodriguez
Contractors. Macario Linghon was one of her workers. She and her husband, the former Municipal
Mayor of Rodriguez, Rizal, acquired several pieces of jewelry which were placed inside a locked
cabinet in a locked room in their main house. Jovita hid the key to the cabinet inside the room. The
couple and their son resided inside a compound. They hired Pacita Linghon, Macarios sister, as one
of their household helpers us sometime in February 1989. [5] Pacita swept and cleaned the room
periodically. Sometime in May 1991, she left the employ of the Rodriguez family.
Sometime in the third week of October 1991, Pacita contacted her brother Macario, who
resided in Sitio Baloongan, Barangay Paltok, Meycauayan, Bulacan, [6] and asked him to sell some
pieces of jewelry. She told Macario that a friend of hers owned the jewelry. [7] Macario agreed. He
then went to the shop of petitioner Ernesto Erning Francisco located at Pacheco Street, Calvario,
Meycauayan, Bulacan,[8] which had a poster outside that said, We buy gold. Macario entered the
shop, while Pacita stayed outside. Macario offered to sell to Ernesto two rings and one
bracelet. Ernesto agreed to buy the jewelry for P25,000, and paid the amount to Macario. He also
gave Macario P300 as a tip.[9]
Sometime in November 1991,[10] Pacita asked Macario anew to sell a pair of earrings. He
agreed. He and a friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of
earrings for P18,000. The latter agreed and paid Macario the amount. Ernesto gave a P200 tip to
Macario. After these transactions, Macario saw the petitioner in his shop for about five to six more
times and received some amounts.[11]
Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She
was shocked when she opened the locked cabinet containing her jewelry, and found that the box was
empty. She noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing
were one pair of diamond heart-shaped earrings worth P400,000; one heart-shaped diamond ring
worth P100,000; one white gold bracelet with diamond stones worth P150,000; and one ring with a
small diamond stone worth P5,000. She suspected that it was Pacita who stole her jewelry. She was,
however, occupied with her business ventures that she had little time to gather evidence and charge
Pacita.
On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother
Adoracion Linghon with the Counter-Intelligence Group of the Philippine National Police in Camp
Crame, Quezon City. She stated that she owned several jewels, viz: one (1) heart-shaped pair of
earrings with diamond worth P400,000; one (1) heart-shaped ring with diamond worthP100,000; one
(1) white gold bracelet with diamond stones worth P150,000; and, one (1) ring with a small diamond
stone worth P5,000. She also averred that Pacita had stolen the pieces of jewelry, and that she and
her mother Adoracion disposed of the same.
A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence
Group, invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in connection
with Jovitas complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement
pointing to the petitioner as the person to whom she sold Jovitas jewelry. On August 23, 1992, Pacita
gave a sworn statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped earrings
with diamond, one white gold bracelet, one heart-shaped diamond ring, and one ring with big and
small stones to Mang Erning of Meycauayan, Bulacan, for the total price of P50,000 to cover the
cost of her fathers operation and for food. When asked about the full name of the person to whom
the jewelry was sold, Pacita replied that she knew him only as Mang Erning.
Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and
PO1 Roldan, Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the Mang
Erning who had purchased the jewelry from her. The policemen alighted from their vehicle and
invited the petitioner for questioning in Camp Crame. Upon his insistence, the petitioner was
brought to the police station of Meycauayan, Bulacan. When they were at the police station, the
petitioner, in the presence of SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe,
for them not to implicate him in the case. PO1 Roldan, Jr. rejected the offer.[12] They again invited
the petitioner to go with them to Camp Crame, but the petitioner refused and demanded that the
policemen first secure a warrant for his arrest should they insist on taking him with them. [13]
Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San
Mateo, Rizal, Branch 76.[14] The case was docketed as Criminal Case No. 2005. Adoracion was also
charged with violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The
cases were consolidated and jointly tried.
Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring
him that he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against
the petitioner.
PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation.
On September 1, 1992, Jovita executed a sworn statement in the office of the police station of
Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.[15]A
criminal complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal
Trial Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the
preliminary investigation, Pacita and Macario testified that they sold a set of earrings, bracelet and
two rings to the petitioner for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she
found the jewelry belonging to Jovita while she was cleaning the room in the house, and that she
brought the jewelry home.[16] The court found probable cause against the petitioner, and issued a 1. Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612
warrant for his arrest. (Anti-Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1 day of prision
mayormaximum, as minimum, to 20 years of reclusion temporal maximum, as maximum, with the
On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC accessory penalties corresponding to the latter.
charging the petitioner with violating P.D. No. 1612.
In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, 2. Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding value of
Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and the subject items of jewelries (sic):
Adoracion guilty of fencing under P.D. No. 1612, beyond reasonable doubt. The decretal portion of
the decision reads: one (1) pair of earrings, heart shaped P400,000.00
one (1) white gold bracelet 150,000.00
WHEREFORE, premises considered, judgment is hereby rendered in these cases, as follows: one (1) diamond ring 100,000.00
one (1) ring with diamond 5,000.00
TOTAL VALUE P655,000.00
1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable
doubt of the crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the
Revised Penal Code, and sentencing her to suffer the indeterminate sentence of Nine (9) years and with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said
Four (4) months of prision mayor as minimum to Eighteen (18) years, Two (2) months and Twenty amounts have been fully paid.
(20) days of reclusion temporal as maximum, to return to complainant Jovita Rodriguez the
unrecovered stolen pieces of jewelry subject of this case and if restitution is not possible, to SO ORDERED.[26]
indemnify the said complainant in the amount of P1,300,000.00; and to pay the costs.

The petitioner appealed the decision to the Court of Appeals contending that:
2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond reasonable
doubt of the offense of violation of PD 1612, otherwise known as the Anti-Fencing Law, and I
sentencing her to suffer imprisonment of Twelve (12) years of prision mayor; to indemnify
complainant Jovita Rodriguez in the amount of P45,000.00; and to pay the costs.
THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF
PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.
SO ORDERED.[17]
II

The Case for the Petitioner THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE
WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-APPELLANT BEYOND
REASONABLE DOUBT.
The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a
shop located at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold III
jewelry. He had been in this business since 1980.[18] He did not transact with Pacita regarding Jovitas
missing jewels.[19] In fact, he did not even know Jovita and met her only during the preliminary
investigation of the case before the MTC of Meycauayan, Bulacan. He, likewise, denied knowing THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic)
Pacita Linghon, and claimed that he first saw her when she accompanied some policemen in civilian OF PROSECUTION WITNESSES.
clothes to his shop, where he was thereafter invited to Camp Crame for investigation. [20] He saw
Pacita again only during the preliminary investigation of the case. [21]The petitioner also averred that IV
he had no transaction with Macario of whatever nature.[22]
The petitioner further testified that when the policemen in civilian clothes approached him in THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION
his shop, they asked who Mang Erning was, as the sign in his shop carried such name.When he WITNESS AS TO THE ALLEGED ACCUSED-APPELLANTS OFFER OF BRIBE WITHOUT
responded to the question, the policemen identified themselves as members of the police force. The SHOW OF MONEY.
petitioner then gave them his full name.[23] When the policemen invited him for questioning, he
refused at first. Eventually, he agreed to be interrogated at the municipal hall, where the policemen V
insisted on bringing him to Camp Crame. He told them that he would go with them only if they had
a warrant of arrest.[24] He denied ever offering any bribe to the policemen.[25]
THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.[27]
On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond
reasonable doubt of violating P.D. No. 1612. The decretal portion of the decision reads: On December 29, 2000, the CA rendered judgment affirming the decision of the RTC. [28]

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

 The Present Petition
In the present recourse, petitioner Ernesto Francisco asserts that:
The Court of Appeals erred in sustaining the trial courts decision finding petitioner guilty beyond
reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise known as the
Anti-Fencing Law.
The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses, all of
which consisted of hearsay evidence.[29]
The petitioner asserts that the prosecution failed to prove his guilt for the crime charged
beyond reasonable doubt. He avers that the prosecution failed to prove that Pacita stole the jewelry
subject of the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits
that the prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry
and sold the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends
that the testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovitas complaint for
theft, are hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry
to him, Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers
that the testimony of Macario, the principal witness of the prosecution, is inconsistent on substantial
matters; hence, should not be given credence and probative weight.
On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution
was able to prove all the elements of the crime charged. It asserts that the first element was proved
through Pacitas conviction for theft in Criminal Case No. 2005; the second element was shown to
exist with moral certainty via the testimony of Macario identifying the petitioner as the one who
bought the subject pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third
element was proven by evidence showing that the petitioner had been in the business of buying and
selling jewelry for a long period of time, and that he had the expertise to know the correct market
price of the jewelry he purchased from Macario and Pacita. The OSG asserts that the petitioner must
have been put on his guard when the subject pieces of jewelry worth P655,000 were sold to him for
only P50,000.[30] It contends that the inconsistencies in the testimonies of the prosecution witnesses
referred to by the petitioner were minor, and could not be made as a basis to disregard the trial courts
findings of facts, which are entitled to great respect and credit. [31]
The Ruling of the Court
The petition is meritorious.
The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft
has been committed; (2) the accused, who is not a principal or accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any article, item, object or anything of value, which has
been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have
shown that the said article, item, object or anything of value has been derived from the proceeds of
the crime of robbery or theft; and, (4) there is, on the part of the accused, intent to gain for himself or
for another.[32] Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption
of fencing from evidence of possession by the accused of any good, article, item, object or anything
of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the
value of the property.[33] The stolen property subject of the charge is not indispensable to prove
fencing. It is merely corroborative of the testimonies and other evidence adduced by the prosecution
to prove the crime of fencing.
We agree with the trial and appellate courts that the prosecution mustered the requisite
quantum of evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry
from the locked cabinet in the main house of her then employer. Jovita testified on her ownership of
the jewelry and the loss thereof, and narrated that Pacita had access to the cabinet containing the
pieces of jewelry.
We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in
Criminal Case No. 2005 convicting Pacita of theft does not constitute proof against him in this case,
that Pacita had, indeed, stolen the jewelry. There is no showing that the said decision in Criminal
Case No. 2005 was already final and executory when the trial court rendered its decision in the
instant case.
On the second element of the crime, the trial and appellate courts held that the prosecution
proved the same beyond reasonable doubt based on the testimony of Jovita during the trial in
Criminal Cases Nos. 1992 and 2005; that Pacita had confessed to Jovita that she sold some of the
jewelry to the petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their
investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating to said
investigation; the RTC decision in Criminal Cases Nos. 1992 and 2005; the testimonies of Pacita and
her brother Macario during the preliminary investigation of Criminal Case No. 92-13841 before the
MTC of Meycauayan as shown by the transcripts of the stenographic notes taken during the
proceedings; the supplemental sworn statement of Pacita on August 23, 1992 in Camp Crame,
Quezon City, and, the testimony of Macario before the trial court.
However, we find and so hold that
First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to
her that she had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the
latter to prove the truth of the said admission. It bears stressing that the petitioner was not a party in
the said criminal cases. The well-entrenched rule is that only parties to a case are bound by a
judgment of the trial court. Strangers to a case are not bound by the judgment of said case.[34] Jovita
did not reiterate her testimony in the said criminal cases during the trial in the court a quo. The
prosecution did not present Pacita as witness therein to testify on the admission she purportedly
made to Jovita; hence, the petitioner was not able to cross-examine Pacita. The rule is that the acts or
declarations of a person are not admissible in evidence against a third party. [35]
Second. The testimony of Pacita during the preliminary investigation in Criminal Case No.
92-13841, as well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since
Pacita did not testify in the court a quo. The petitioner was, thus, deprived of his constitutional right
to confront and cross-examine a witness against him.
Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the
petitioner, while the latter was having a drinking spree, as the person who bought the subject jewelry
from her, is indeed admissible in evidence against the petitioner. It is, likewise, corroborative of the
testimony of Macario. However, such testimony is admissible only to prove such fact - that Pacita
pointed to the petitioner as the person to whom she sold the subject jewelry; it is inadmissible to
prove the truth of Pacitas declaration to the policemen, that the petitioner was the one who purchased
the jewelry from her. It must be stressed that the policemen had no personal knowledge of the said
sale, and, more importantly, Pacita did not testify in the courta quo. Indeed, the petitioner was
deprived of his right to cross-examine Pacita on the truth of what she told the policemen.
Fourth. On the other hand, the testimony of Macario during the preliminary investigation of
Criminal Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the
prosecution and was cross-examined on his testimony during the preliminary investigation.
 In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry
from Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the
testimony of Macario during the preliminary investigation and trial in the court a quo.
Although the well-entrenched rule is that the testimony of a single witness is sufficient on
which to anchor a judgment of conviction, it is required that such testimony must be credible and
reliable.[36] In this case, we find the testimony of Macario to be dubious; hence, barren of probative
weight.
Macario admitted when he testified in the court a quo that his testimony during the
preliminary investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were
inconsistent. He even admitted that some portions of his testimony on direct examination in the
court a quo were inconsistent with his testimony on cross-examination and on re-direct
examination. These admissions are buttressed by the records of the case, which show that such
inconsistencies pertained to material points and not merely to minor matters. Thus, during the
preliminary investigation in Criminal Case No. 92-13841, Macario admitted that on October 10,
1991, he and his sister Pacita sold two rings and one bracelet to the petitioner forP25,000, while in
November 1991, he and Pacita sold a pair of earrings to the petitioner for P25,000. On direct
examination in the court a quo, Macario testified that he and Pacita sold the earrings to the petitioner
in May 1992, not in November 1991, and only for P18,000. On cross-examination, Macario testified
that he and his sister Pacita went to the petitioners shop in Meycauayan, Bulacan and sold the subject
jewelry on both occasions. On further cross-examination, Macario changed his testimony anew, and
declared that he sold the jewelry to the petitioner for P18,000 and not P25,000; only to change his
testimony again, and declare that he sold the jewelry for P25,000. However, Macario testified during
the preliminary investigation in Criminal Case No. 92-13841 that when he transacted with the
petitioner for the second time, he was with a friend, and not with his sister Pacita. On redirect
examination, Macario declared that in October 1991, he and Pacita sold four (4) pieces of jewelry,
namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on direct
examination. He also testified that he and his sister sold the earrings in November 1991. Because of
the contradicting accounts made by Macario, the court made the following observations:
Court
q According to you, you were nalilito but you gave the correct answer, you are
not nalilito here but you gave the wrong answer. Bakit ganoon, sabi mo nalilito
ka roon (sic) pero ang sagot mo pala tama.Dito hindi ka naman nalilito, bakit
mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang sabi
mo.
a Because I am scare[d] here thats why I gave the wrong answer.
q You better think about it.
a I was confused, Sir.[37]
The testimonies of Macario are even contrary to the averments of the Information, that the
petitioner received the said jewelry from Pacita.
Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is
no evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did
not know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the
jewelry to the petitioner that they belonged to a friend of hers.
Atty. Lerio
Q At that time you and your sister sold those jewels to Mang Erning did do you know
already [that] it was Mrs. Rodriguez who is the owner of those jewels?
A No, Sir, I do not know.
Q And who do you know was the owner of that jewels and that time you and your sister
sold those jewels to Mang Erning?
A According to my sister, it is (sic) owned by a friend of hers.
Court
Q How did you come to know of this Mang Erning?
A Only at that time when we brought the jewels.
Q But previous to that, do you know him?
A No.[38]
Macario learned, after the case against Pacita had already been filed in the trial court, that the
jewelry was, after all, owned by Jovita. However, he failed to inform the petitioner that the said
jewelry was stolen. Following is the testimony of Macario:
Atty. Lerio
Q When you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all,
informed (sic) Mang Erning about it?
Court
Q No basis, when did you come to know that the jewels belong to Mrs. Rodriguez?
A In 1992, when my sister already had a case.
Q What did you do when you come (sic) to know about that?
A I was not able to do anything but just to help my sister with her case and also to help
the case of Mrs. Rodriguez.
Atty. Lerio
Q After that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was
there any occasion where you (sic) able to inform Mang Erning that those jewels
were owned by Mrs. Rodriguez?
A No more, I have no more time.[39]
The prosecution cannot even validly argue that the petitioner should have known which pieces
of jewelry were stolen, considering that Macario was selling the same for P50,000 when the said
pieces stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution
failed to adduce sufficient competent evidence to prove the value of the said stolen articles. The
prosecution relied solely on the bare and uncorroborated testimony of Jovita, that they were
worth P655,000:
Atty. Lerio
Q Now, will you tell this Court some of those jewels which you own?
A I own several jewels and the one (sic) in question are: 1-pair of earrings, diamond
heart-shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-
bracelet, white gold full of stones, diamond worth P150,000.00; 1-diamond ring
with small stones worth P5,000.00. So, all in all, the jewelry is (sic)
worth P665,000.00.[40]
When asked by the trial court to declare the present market value of the stolen jewelry, Jovita
merely declared:
Atty. Lerio
Q Now again, when did you acquire those jewels if you can still remember?
A I remember several years ago when my husband is (sic) alive.
Court
Q Please tell the court, [is] the market value of the jewels the same today?
A No, that is (sic) the market value several years ago.
Q So, can you explain [if] the market value, more or less, [is] the same today?
A No. The price, if we will appraise now, is much bigger.[41]
 When required by the petitioner, through counsel, to bring to the court any receipts reflecting
the price of the pieces of jewelry to show that she purchased the same, Jovita answered that she had
no such receipts. Thus:

Court
Q You bought it from [a] private person?
A Yes, Your Honor.
Atty. Bernal
Q What then is your proof that you bought these jewelries (sic) from a private person?
Atty. Lerio
That was already answered, Your Honor. She said, no receipt.[42]
In People v. Paraiso,[43] we cited our ruling in People v. Marcos[44] that an ordinary witness
cannot establish the value of jewelry, nor may the courts take judicial notice of the value of the
same:

[A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness cannot
establish the value of jewelry and the trial court can only take judicial notice of the value of goods
which are matters of public knowledge or are capable of unquestionable demonstration. The value of
jewelry is not a matter of public knowledge nor is it capable of unquestionable demonstration and in
the absence of receipts or any other competent evidence besides the self-serving valuation made by
the prosecution, we cannot award the reparation for the stolen jewelry. [45]

It bears stressing that, in the absence of direct evidence that the accused had knowledge that
the jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it
can be concluded that the accused should have known that the property sold to him were stolen. This
requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and,
(b) to enable the trial court to determine the imposable penalty for the crime, since the penalty
depends on the value of the property; otherwise, the court will fix the value of the property at P5.00,
conformably to our ruling in People v. Dator:[46]

In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of
the bag and its contents at P100.00 based on the attendant circumstances of the case. More
pertinently, in the case of People vs. Reyes, this Court held that if there is no available evidence to
prove the value of the stolen property or that the prosecution failed to prove it, the corresponding
penalty to be imposed on the accused-appellant should be the minimum penalty corresponding to
theft involving the value of P5.00.[47]

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of
Malolos, Bulacan, Branch 22, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of
the crime of violating P.D. No. 1612 for the prosecutions failure to prove his guilt beyond reasonable
doubt.

SO ORDERED.