ARTICLE 308 THEFT

VALENZUELA vs. PEOPLE (2007)

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 Ultramatic and again unloaded
these boxes to the same area in the open parking space.[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons
of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago,
who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked
petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot,
but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and
Calderon were apprehended at the scene, and the stolen merchandise recovered. [8] The filched
items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25
grams, and three (3) additional cases of detergent, the goods with an aggregate value
of 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.

while they were eating that they heard the gunshot fired

It

was
by

Lago, leading them to head out of the building to check what was transpiring. As they were
outside, they were suddenly grabbed by a security guard, thus commencing their detention.
[12]

Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,

[13]

had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a

tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot
caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at

the security office until around 9:00 p.m., at which time he and the others were brought to the
Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but
he was detained overnight, and eventually brought to the 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 ofprision 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, Dioand 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 thatDio 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 rea has been defined

before as a guilty mind, a guilty or wrongful purpose or criminal intent, [37] and essential for
criminal liability.[38] It follows that the statutory definition of our mala in se crimes must be able to
supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably

held that a criminal law that contains no mens rea requirement infringes on constitutionally
protected rights.[39] The criminal statute must also provide for the overt acts that constitute the
crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must
also be anactus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute,
that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it
is extremely preferable that the language of the law expressly provide when the felony is
produced. Without such provision, disputes would inevitably ensue on the elemental question
whether or not a crime was committed, thereby presaging the undesirable and legally dubious
set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any
felony, a decisive passage or term is embedded which attests when the felony is produced by
the acts of execution. For example, the statutory definition of murder or homicide expressly uses
the phrase shall kill another, thus making it clear that the felony is produced by the death of the
victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal
Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person
who, with intent to gain but without violence against or intimidation of persons nor
force upon things, shall take personal property of another without the 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 withapoderamiento, or unlawful
taking, to characterize theft. Justice Regalado notes that the concept of apoderamiento once
had a controversial interpretation and application. Spanish law had already discounted the belief
that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled
with the intent to appropriate the object in order to constituteapoderamiento; 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 pocketbook 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 orFlores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched.
However, as implied in Flores, the character of the item stolen could lead to a different
conclusion as to whether there could have been free disposition, as in the case where the
chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68]
In his commentaries, Chief Justice Aquino makes the following pointed observation on
the import of the 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]][71]
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other
cases, also states that [i]n theft or robbery the crime is consummated after the accused had
material possession of the thing with intent to appropriate the same, although his act of making
use of the thing was frustrated.[72]
There are at least two other Court of Appeals rulings that are at seeming variance with
the 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 of U.S. [v.] Adiao x x x and U.S. v.
Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime
of theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck. However, as the truck passed through the
checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even
though those facts clearly admit to similarity with those in 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 howEmpelis 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 artculos 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 del hurto no lo consume
efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in
scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A
final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to
scholastic pariah, for such a submission is hardly heretical in light of Cuello 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 theDio/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 actusreus 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
the Dio/Floresdictum 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, orapoderamiento, 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 Floreswas 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 Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in

our jurisdiction. That it has taken all these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does not detract from the correctness of this
conclusion. It will take considerable amendments to our Revised Penal Code in order that
frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for
legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

NORMA DIZON-PAMINTUAN, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
Puno and Puno for petitioner.
The Solicitor General for respondent.

DAVIDE, JR., J.:

The chief issue presented for our determination in this petition for review under Rule 45 of the
Rules of Court is the correctness of the decision of 29 March 1993 of the Court of Appeals in
CA-G.R. CR No. 11024 1 which affirmed the decision of Branch 20 of the Regional Trial Court of
Manila in Criminal Case No. 88-64954 2 finding the petitioner guilty of the violation of the AntiFencing Law (P.D. No. 1612) but set aside the penalty imposed and ordered the trial court to
receive additional evidence on the "correct valuation" of the pieces of jewelry involved for the
sole purpose of determining the penalty to be imposed.
The information in Criminal Case No. 88-64954 charged the petitioner with the violation of the
Anti-Fencing Law in that
on or about and during the period from February 12, to February 24, 1988,
inclusive, in the City of Manila, Philippines, the said accused, with intent of gain
for herself or for another, did then and there wilfully, unlawfully and knowingly buy
and keep in her possession and/or sell or dispose of the following jewelries, to
wit: one (1) set of earrings, a ring studded with diamonds in a triangular style,
one (1) set of earrings (diamond studded) and one (1) diamond-studded crucifix,
or all valued at P105,000.00, which she knew or should have known to have

been derived from the proceeds of the crime of robbery committed by Joselito
Sacdalan Salinas against the owner Teodoro and Luzviminda Encarnacion. 3
On the basis of the testimonies of prosecution witnesses Teodoro Encarnacion (one of the
offended parties), Cpl. Ignacio Jao, Jr., and Pfc. Emmanuel Sanchez, both of the Western Police
District, the trial court promulgated on 16 November 1990 its decision, the dispositive portion of
which reads:
WHEREFORE, the prosecution having proved the guilty of the accused for
violation of Presidential Decree No. 1612 beyond reasonable doubt, the accused
Norma Dizon-Pamintuan is hereby sentenced to suffer an indeterminate penalty
of imprisonment from FOURTEEN (14) YEARS of prision mayor to NINETEEN
(19) YEARS of reclusion temporal.
No civil liability in view of the recovery of the items, subject-matter of this case.
With costs. 4
The evidence of the prosecution is summarized by the trial court as follows:
Teodoro Encarnacion, Undersecretary, Department of Public Works and
Highways testified that he has just arrived at his residence located at Better
Living Subdivision, Paraaque at around 9:45 p.m. of February 12, 1988 coming
from the Airport and immediately proceeded inside the house, leaving behind his
driver and two housemaids outside to pick-up his personal belongings from his
case. It was at this point that five unidentified masked armed persons appeared
from the grassy portion of the lot beside the house and poked their guns to his
driver and two helpers and dragged them inside his house. That the men pointed
a gun at him and was made to lie face down on the floor. The other occupants,
namely his wife, the maids and his driver were likewise made to lie on the floor.
Thereafter, the robbers ransacked the house and took away jewelries and other
personal properties including cash. After the intruders left the house he reported
the matter immediately to the police. He was then interviewed by the Paraaque
police and was informed that an operation group would be assigned to the case.
He likewise reported the matter to the Western Police District on February 15,
1988. Two days later, a group of WPD operatives came over to his house and he
was asked to prepare a list of items of jewelry and other valuables that were lost
including a sketch of distinctive items. He was later told that some of the lost
items were in Chinatown area as tipped by the informer the police had
dispatched. That an entrapment would be made with their participation, on
February 14, 1988. As such, they went to Camp Crame at around 9:00 a.m. and
arrived at the vicinity of 733 Florentino Torres Street, Sta. Cruz, Manila at about
10:00 a.m.; that he is with his wife posed as a buyer and were able to recognize
items of the jewelry stolen displayed at the stall being tended by Norma Dizon
Pamintuan; the pieces were: 1 earring and ring studded with diamonds worth
P75,000 bought from estimator Nancy Bacud (Exh. "C-2"), 1 set of earring

diamond worth P15,000 (Exh. "C-3") and 1 gold chain with crucifix worth P3,000
(Exh. "C-4").
Corporal Ignacio Jao, Jr. of the WPD testified that he was with the spouses
Teodoro Encarnacion, Jr. in the morning of February 24, 1988 and they
proceeded to Florentino Torres Street, Sta. Cruz, Manila at the stall of Norma
Dizon-Pamintuan together with Sgt. Perez. After the spouses Encarnacion
recognized the items subject matter of the robbery at the display window of the
stall being tended by the herein accused, they invited the latter to the precinct
and investigated the same. They likewise brought the said showcase to the WPD
station. He further testified that he has no prior knowledge of the stolen jewelries
of the private complainant from one store to another.
Pfc. Emmanuel Sanchez of the WPD testified that he reported for duty on
February 24, 1988; that he was with the group who accompanied the spouses
Encarnacion in Sta. Cruz, Manila and was around when the couple saw some of
the lost jewelries in the display stall of the accused. He was likewise present
during the early part of the investigation of the WPD station. 5
The recovery of the pieces of jewelry, on the basis of which the trial court ruled that no civil
liability should be adjudged against the petitioner, took place when, as testified to by Teodoro
Encarnacion, the petitioner "admitted that she got the items but she did not know they were
stolen [and that] she surrendered the items and gave them to [his] wife." 6
On the other hand, the version of the defense, as testified to by Rosito Dizon-Pamintuan, is
summarized by the trial court thus:
The defense presented only the testimony of Rosito Dizon-Pamintuan who
testified that he is the brother of Norma Dizon-Pamintuan and that sometime
around 11:00 a.m. of February 24, 1985, he, together with the accused went
infront of the Carinderia along Florentino Torres Street, Sta. Cruz, Manila waiting
for a vacancy therein to eat lunch. Suddenly, three persons arrived and he
overheard that Cpl. Jao told her sister to get the jewelry from inside the display
window but her sister requested to wait for Fredo, the owner of the stall. But ten
minutes later when said Fredo did not show up, the police officer opened the
display window and got the contents of the same. The display stall was hauled to
a passenger jeepney and the same, together with the accused were taken to the
police headquarters. He likewise testified that he accompanied his sister to the
station and after investigation was sent home. 7
In convicting the petitioner, the trial court made the following findings:
The prosecution was able to prove by evidence that the recovered
items were part of the loot and such recovered items belong to the
spouses Encarnacion, the herein private complainants. That such
items were recovered by the Police Officers from the stall being
tended by the accused at that time. Of importance, is that the law

provides a disputable presumption of fencing under Section 5

thereof, to wit:
Mere possession of any goods, article, item object, or anything of
value which has been the subject of robbery or thievery shall
be prima facie evidence of fencing.
There is no doubt that the recovered items were found in the possession of the
accused and she was not able to rebut the presumption though the evidence for
the defense alleged that the stall is owned by one Fredo. A distinction should
likewise be made between ownership and possession in relation to the act of
fencing. Moreover, as to the value of the jewelries recovered, the prosecution
was able to show that the same is Ninety Three Thousand Pesos (P93,000.00). 8
The petitioner then appealed her conviction to the Court of Appeals (CA-G.R. CR No. 11024)
where she raised two issues: (1) that the judgment was based on a mere presumption, and (2)
that the prosecution failed to show that the value of the jewelry recovered is P93,000.00.
In its challenged decision of 29 March 1993, the Court of Appeals disposed of the first issue in
this wise:
The guilt of accused-appellant was established beyond reasonable doubt. All the
elements of the crime of fencing in violation of the Anti-Fencing Law of 1979 (P.D.
No. 1612), to wit:
1. A crime of robbery or theft has been committed;
2. A person, not a participant in said crime, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells; or in any manner deals
in any article or item, object or anything of value;
3. With personal knowledge, or should be known to said person that said item,
object or anything of value has been derived from the proceeds of the crime of
robbery or theft;
4. With intent to gain for himself or for another;
have been established by positive and convincing evidence of the
prosecution . . .
...
The fact that a crime of robbery has been committed on February 12, 1988 is
established by the testimony of private complainant Teodoro T. Encarnacion who
immediately reported the same to Paraaque Police Station of the Southern
Police District (TSN, Hearings of October 3, 1988, November 9, 1988 and
January 11, 1989; Exh. A) and submitted a list and sketches of the jewelries

robbed, among other things, from their residence located at Better Living
Subdivision, Paraaque, Metro Manila (Exh. C,
C-1 to C-4 and D).
The second element is likewise established by convincing evidence. On February
24, 1988, accused-appellant was found selling the jewelries (Exhs. C-2, C-3 and
C-4) which was displayed in a showcase in a stall located at Florentino Street,
Sta. Cruz, Manila. [Testimonies of Teodoro Encarnacion (id. supra); Cpl. Ignacio
Jao (TSN, Hearing of February 13, 1989) and Pfc. Emmanuel Sanchez (TSN,
Hearing of June 4, 1989)].
On the element of knowledge that the items are derived from the proceeds of the
crime of robbery and of intent to gain for herself or for another, the Anti-Fencing
Law provides:
Sec. 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.
Knowledge and intent to gain are proven by the fact that these jewelries were
found in possession of appellant and they were displayed for sale in a showcase
being tended by her in a stall along Florentino Street, Sta. Cruz, Manila. 9
Nevertheless, the Court of Appeals was of the opinion that there was not enough evidence to
prove the value of the pieces of jewelry recovered, which is essential to the imposition of the
proper penalty under Section 3 of P.D.
No. 1612. It opined that the trial court erred in concluding that "the value of the recovered
jewelries is P93,000.00 based on the bare testimony of the private complainant and the selfserving list he submitted (Exhs. C, C-2 and C-4, TSN, Hearing of October 3, 1993)." 10
The dispositive portion of the Court of Appeals' decision reads:
WHEREFORE, finding that the trial court did not commit any reversible error, its
decision dated October 26, 1990 convincing accused appellant is hereby
AFFIRMED with the modification that the penalty imposed is SET ASIDE and the
Regional Trial Court (Branch 20) of Manila is ordered toreceive evidence with
respect to the correct valuation of the properties involved in this case, marked as
Exhibits "C", "C-2" and "C-4" for the sole purpose of determining the proper
penalty to be meted out against accused under Section 3, P.D. No. 1612. Let the
original records be remanded immediately. 11
Hence, this petition wherein the petitioner contends that:
I

PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN

AFFIRMING THE DECISION OF PUBLIC RESPONDENT JUDGE CAEBA, IN
BLATANT DISREGARD OF APPLICABLE LAW AND WELL-ESTABLISHED
JURISPRUDENCE.
II
PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN
REMANDING THE CASE TO THE COURT A QUO FOR RECEPTION OF
EVIDENCE FOR THE PURPOSE OF DETERMINING THE CORRECT
PENALTY TO BE IMPOSED. 12
On 23 February 1994, after the public respondents had filed their Comment and the petitioner
her Reply to the Comment, this Court gave due course to the petition and required the parties to
submit their respective memoranda, which they subsequently complied with.
The first assigned error is without merit.
Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing Law), 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 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."
Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as
the term is defined in Article 19 of the Revised Penal Code. The penalty applicable to an
accessory is obviously light under the rules prescribed in Articles 53, 55, and 57 of the Revised
Penal Code, subject to the qualification set forth in Article 60 thereof. Nothing, however, the
reports from law enforcement agencies that "there is rampant robbery and thievery of
government and private properties" and that "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," P.D.
No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the
crimes of robbery and theft." Evidently, the accessory in the crimes of robbery and theft could be
prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the
latter case, he ceases to be a mere accessory but becomes aprincipal in the crime of fencing.
Elsewise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are
separate and distinct offenses. 13 The state may thus choose to prosecute him either under the
Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem
inevitable considering that fencing is amalum prohibitum, and P.D. No. 1612 creates a
presumption of fencing 14 and prescribes a higher penalty based on the value of the property. 15
The elements of the crime of fencing are:
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 said crime;
3. The accused knows 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 the accused, intent to gain for himself or for
another.
In the instant case, there is no doubt that the first, second, and fourth elements were duly
established. A robbery was committed on 12 February 1988 in the house of the private
complainants who afterwards reported the incident to the Paraaque Police, the Western Police
District, the NBI, and the CIS, and submitted a list of the lost items and sketches of the jewelry
taken from them (Exhibits "C" and "D"). Three of these items stolen, viz., (a) a pair of earrings
and ring studded with diamonds worth P75,000.00 (Exhibit "C-2"); (b) one set of earrings worth
P15,000.00 (Exhibit "C-3"); and (c) a chain with crucifix worth P3,000.00 (Exhibit "C-4"), were
displayed for sale at a stall tended to by the petitioner in Florentino Torres Street, Sta. Cruz,
Manila. The public display of the articles for sale clearly manifested an intent to gain on the part
of the petitioner.
The more crucial issue to be resolved is whether the prosecution proved the existence of the
third element: that the accused knew or should have known that the items recovered from her
were the proceeds of the crime of robbery or theft.
One is deemed to know a particular fact if he has the cognizance, consciousness or awareness
thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he
has something within the mind's grasp with certitude and clarity. 16 When knowledge of the
existence of a particular fact is an element of an offense, such knowledge is established if a
person is aware of a high probability of its existence unless he actually believes that it does not
exist. 17 On the other hand, 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. 18 Knowledge refers to a
mental state of awareness about a fact. Since the court cannot penetrate the mind of an
accused and state with certainty what is contained therein, it must determine such knowledge
with care from the overt acts of that person. And given two equally plausible states of cognition
or mental awareness, the court should choose the one which sustains the constitutional
presumption of innocence. 19
Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere 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," it follows that the petitioner is presumed to have knowledge
of the fact that the items found in her possession were the proceeds of robbery or theft. The
presumption is reasonable for no other natural or logical inference can arise from the

established fact of her possession of the proceeds of the crime of robbery or theft. This
presumption does not offend the presumption of innocence enshrined in the fundamental
law. 20 In the early case of United States vs.
Luling, 21 this Court held:
It has been frequently decided, in case of statutory crimes, that no constitutional
provision is violated by a statute providing that proof by the state of some
material fact or facts shall constitute prima facieevidence of guilt, and that then
the burden is shifted to the defendant for the purpose of showing that such act or
acts are innocent and are committed without unlawful intention. (Commonwealth
vs. Minor, 88 Ky., 422.)
In some of the States, as well as in England, there exist what are known as
common law offenses. In the Philippine Islands no act is a crime unless it is
made so by statute. The state having the right to declare what acts are criminal,
within certain well defined limitations, has a right to specify what act or acts shall
constitute a crime, as well as what proof shall constitute prima facie evidence of
guilt, and then to put upon the defendant the burden of showing that such act or
acts are innocent and are not committed with any criminal intent or intention.
In his book on constitutional law, 22 Mr. Justice Isagani A. Cruz said:
Nevertheless, the constitutional presumption of innocence may be overcome by
contrary presumptions based on the experience of human conduct [People vs.
Labara, April 20, 1954]. Unexplained flight, for example, may lead to an inference
of guilt, as 'the wicked flee when no man pursueth, but the righteous is as bold as
a lion. Failure on the part of the accused to explain his possession of stolen
property may give rise to the reasonable presumption that it was he himself who
had stolen it [U.S. vs. Espia, 16 Phil. 506]. Under our Revised Penal Code, the
inability of an accountable officer to produce funds or property entrusted to him
will be considered prima facie evidence that he has appropriated them to his
personal use [Art. 217]. According to Cooley, the constitutional presumption will
not apply as long as there is "some rational connection between the fact proved
and the ultimate fact presumed, and the inference of one fact from proof of
another shall not be so unreasonable as to be purely arbitrary mandate" [1
Cooley, 639].
The petitioner was unable to rebut the presumption under P.D. No. 1612. She relied solely on
the testimony of her brother which was insufficient to overcome the presumption, and, on the
contrary, even disclosed that the petitioner was engaged in the purchase and sale of jewelry
and that she used to buy from a certain Fredo. 23
Fredo was not presented as a witness and it was not established that he was a licensed dealer
or supplier of jewelry. Section 6 of P.D. No. 1612 provides that "all stores, establishments or
entitles dealing in the buy and sell of any good, article, item, object or 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." Under
the Rules and Regulations 24 promulgated to carry out the provisions of Section 6, an unlicensed
dealer/supplier refers to any person, partnership, firm, corporation, association or any other
entity or establishment not licensed by the government to engage in the business of dealing in
or supplying "used secondhand articles," which refers to any good, 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.
We do not, however, agree with the Court of Appeals that there is insufficient evidence to prove
the actual value of the recovered articles.
As found by the trial court, the recovered articles had a total value of P93,000.00, broken down
as follows:
a) one earring and ring studded with diamonds (Exh. "C-2") P75,000.00
b) one set of earring (Exh. "C-3") P15,000.00
c) one gold chain with crucifix (Exh. "C-4") P3,000.00
These findings are based on the testimony of Mr. Encarnacion 25 and on Exhibit "C," 26 a
list of the items which were taken by the robbers on 12 February 1988, together with the
corresponding valuation thereof. On cross-examination, Mr. Encarnacion re-affirmed his
testimony on direct examination that the value of the pieces of jewelry described in
Exhibit "C-2" is P75,000.00 27 and that the value of the items described in Exhibit "C-3" is
P15,000.00, although he admitted that only one earring and not the pair was
recovered. 28 The cross-examination withheld any question on the gold chain with crucifix
described in Exhibit "C-4." In view, however, of the admission that only one earring was
recovered of the jewelry described in Exhibit "C-3," it would be reasonable to reduce the
value from P15,000.00 to P7,500.00. Accordingly, the total value of the pieces of jewelry
displayed for sale by the petitioner and established to be part of the proceeds of the
robbery on 12 February 1988 would be P87,000.00.
Section 3(a) of P.D. No. 1612 provides that the penalty of prision mayor shall be imposed upon
the accused if the value of the property involved is more than P12,000.00 but does not exceed
P22,000.00, and if the value of such property exceeds the latter sum, the penalty of prision
mayor should be imposed in its maximum period, adding one year for each additional
P10,000.00; the total penalty which may be imposed, however, 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. The maximum
penalty that can be imposed in this case would then be eighteen (18) years and five (5) months,
which is within the range of reclusion temporal maximum. Applying the Indeterminate Sentence
law which allows the imposition of an indeterminate penalty which, with respect to offenses
penalized by a special law, shall range from a minimum which shall not be lower than the
minimum prescribed by the special law to a maximum which should not exceed the maximum
provided therein, the petitioner can thus be sentenced to an indeterminate penalty ranging from
ten (10) years and one (1) day of prision mayor maximum, as minimum to eighteen (18) years

and five (5) months of reclusion temporal maximum asmaximum, with the accessory penalties
corresponding to the latter.
In the light of the foregoing, the Court of Appeals erred in setting aside the penalty imposed by
the trial court and in remanding the case to the trial court for further reception of evidence to
determine the actual value of the pieces of jewelry recovered from the petitioner and for the
imposition of the appropriate penalty.
We do not agree with the petitioner's contention, though, that a remand for further reception of
evidence would place her in double jeopardy. There is double jeopardy when the following
requisites concur: (1) the first jeopardy must have attached prior to the second, (2) the first
jeopardy must have validly been terminated, and (3) the second jeopardy must be for the same
offense as that in the first. 29 Such a concurrence would not occur assuming that the case was
remanded to the trial court.
WHEREFORE, the instant petition is partly GRANTED by setting aside the challenged decision
of the Court of Appeals in CA-G.R. CR No. 11024 insofar as it sets aside the penalty imposed
by Branch 20 of the Regional Trial Court of Manila in Criminal Case No. 88-64954 and orders
the remand of the case for the trial court to receive evidence with respect to the correct value of
the properties involved. The decision of the Regional Trial Court is AFFIRMED subject to the
modification of the penalty which is hereby reduced to an indeterminate penalty ranging from
Ten (10) years and One (1) day of Prision Mayor maximum as minimum to Eighteen (18) years
and Five (5) months of Reclusion Temporal maximum as maximum, with the accessory
penalties of the latter.
SO ORDERED.
ERNESTO
FRANCISCO
y
SPENOCILLA, petitioner, vs.
PHILIPPINES, respondent.

PEOPLE

OF

THE

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 ofprision 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 MacarioP300 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 forP18,000. 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) heartshaped pair of earrings with diamond worth P400,000; one (1) heart-shaped ring with diamond
worth P100,000; 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 CounterIntelligence 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 heartshaped 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 ofP5,000 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 warrant for his arrest.
On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC
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,
Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and
Adoracion guilty of fencing under P.D. No. 1612, beyond reasonable doubt. The decretal portion
of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in these cases, as follows:
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 Four (4) months ofprision mayor as minimum to Eighteen (18) years, Two (2)
months and Twenty (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 indemnify the said complainant in the amount ofP1,300,000.00; and to pay
the costs.
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 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.
SO ORDERED.[17]
The Case for the Petitioner
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
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 Pacita Linghon, and claimed that he first saw her when she accompanied some
policemen in civilian 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 he had no transaction with Macario of whatever nature.[22]
The petitioner further testified that when the policemen in civilian clothes approached him in
his shop, they asked who Mang Erning was, as the sign in his shop carried such name. When
he responded to the question, the policemen identified themselves as members of the police
force. The 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 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]
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:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:
1.
Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree
No. 1612 (Anti-Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1
day of prision mayor maximum, as minimum, to 20 years of reclusion temporal maximum, as
maximum, with the accessory penalties corresponding to the latter.
2.
Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding
value of the subject items of jewelries (sic):
one (1) pair of earrings, heart shaped

P400,000.00

one (1) white gold bracelet

150,000.00

one (1) diamond ring

100,000.00

one (1) ring with diamond

5,000.00

TOTAL VALUE

P655,000.00

with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said
amounts have been fully paid.
SO ORDERED.[26]
The petitioner appealed the decision to the Court of Appeals contending that:
I

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF PROSECUTION
WITNESSES ARE ALL HEARSAY EVIDENCE.
II
THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE WAS
NOT SUFFICIENT TO CONVICT THE ACCUSED-APPELLANT BEYOND REASONABLE
DOUBT.
III
THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic)
OF PROSECUTION WITNESSES.
IV
THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION
WITNESS AS TO THE ALLEGED ACCUSED-APPELLANTS OFFER OF BRIBE WITHOUT
SHOW OF MONEY.
V
THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.[27]
On December 29, 2000, the CA rendered judgment affirming the decision of the RTC.[28]
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 onlyP50,000.[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 faciepresumption 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. 9213841 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 crossexamine 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 court a 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 for P25,000, 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.

Because I am scare[d] here thats why I gave the wrong answer.

You better think about it.

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?

No, Sir, I do not know.

And who do you know was the owner of that jewels and that time you and your
sister sold those jewels to Mang Erning?

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?

Only at that time when we brought the jewels.

But previous to that, do you know him?

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?

In 1992, when my sister already had a case.

What did you do when you come (sic) to know about that?

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?

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 worthP655,000:
Atty. Lerio
Q

Now, will you tell this Court some of those jewels which you own?

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; 1bracelet, 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)
worthP665,000.00.[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?

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?

No, that is (sic) the market value several years ago.

So, can you explain [if] the market value, more or less, [is] the same today?

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?

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 inPeople 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.

ARTICLE 310 QUALIFIED THEFT

ANTONIO AVECILLA, appellant-petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS, appellees-respondents.

ROMERO, J.:
This is a petition for review on certiorari of the decision dated December 20, 1976 of the Court
of Appeals in CA-G.R. No. 16628-CR entitled "People of the Philippines v. Antonio Avecilla"
modifying the decision of July 16, 1973 of the then Court of First Instance of Rizal, Branch 1 at
Pasig finding the accused-petitioner guilty of simple theft, by convicting the accused-petitioner
instead, of qualified theft and imposing on him accordingly, a higher penalty.
The accused-petitioner, Antonio Avecilla and one Juana Doe were charged before the said
lower court of the crime of theft, allegedly committed as follows:
That on or about the 16th day of November, 1971, in the municipality of
Mandaluyong, province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and mutually helping
and aiding one another, with intent of gain and without the knowledge and
consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and carry away one Registered Letter number 247341,
delivery number 3752, valued at $500.00 belonging to one Lourdes Rodriguez de
Lacson, to the damage and prejudice of the latter in the aforementioned amount
of $500.00, U.S. Dollar.
Contrary to law. 1
Upon arraignment, Antonio Avecilla entered a plea of not guilty to the crime charged.

On the other hand, to prove his guilt, the prosecution presented the following witnesses:
1. Lourdes Rodriguez de Lacson, an employee of Litton Mills, Inc., testified that her sister, Maria
Paz, a resident of Milwaukee, Wisconsin, U.S.A., sent her a registered letter containing a bank
draft worth $400.00 (not $500.00 as alleged in the information). She came to know about this
registered letter through another sister Carmencita Rodriguez, who, on December 17, 1971,
also received another letter from Maria Paz, inquiring whether she (witness) had received
Registered Letter No. 247341, which was addressed to her at Litton Mills, Inc. 3

Since she did not receive the registered letter with the bank draft, Lourdes went to the
Mandaluyong Post Office and inquired about it. She was informed by the Postmaster and the
teller that Registered Letter No. 247341 addressed to her was claimed on November 16, 1971
by one Antonio Avecilla, whom they knew had been messenger of Litton Mills, Inc. for more than
two years. That Avecilla got the subject letter was shown by the registry notice duly signed by
him. 4
Lourdes further testified that she filed a complaint in their office, as a result of which an
investigation was conducted by the personnel officer of Litton Knitting Mills. Antonio Avecilla
admitted in her presence that he took the said registered letter, but when she demanded its
return, he refused to do so. Hence, she filed a complaint with the police. 5
On cross-examination, Lourdes stated that on December 23, 1971, she made an overseas call
to her sister, Maria Paz, to request her to stop the payment of the bank draft. As a result, she
was informed by Maria Paz through their sister, Carmencita Rodriguez, that a "stop payment"
order, had already been made to the drawee bank. 6
2. Rosalinda Cervo, Clerk-in-charge of the registry section of Mandaluyong Post Office,
declared that on November 15, 1971, she received a letter for Mrs. Lourdes Lacson, with a
given address at "Litton Knitting Mills." She then issued the corresponding registry notice to the
addressee which she sent through the letter carrier. The following day, November 16, 1971,
Antonio Avecilla went to the post office to claim the registered letter. He presented the registry
notice addressed to Lourdes Lacson with her signature appearing thereon, signed it in her
presence and introduced to her a woman as Mrs. Lourdes Lacson who signed the control book.
She further testified that inasmuch as Antonio Avecilla had been, the authorized messenger of
Litton Knitting Mills since 1969, she entrusted Registered Letter No. 247341 to him. However,
she got to meet the lady who seemed to be the true Mrs. Lacson when the latter went to the
post office to complain about the letter that she (Mrs. Lacson) had not received. When shown
the control book with her alleged signatures, Mrs. Lacson repudiated the same as hers.
Subsequently, when Rosalinda Cervo informed Avecilla about Mrs. Lacson's complaint, he
declared that he had placed the letter on the table of Mrs. Lacson. 7
3. Federico Rivera, Sr., Postmaster of Mandaluyong, Rizal, testified that Litton Mills, through
George Litton, Sr., had previously written him a letter, authorizing one Antonio Avecilla to accept
"registered mails, i.e., checks, parcels and letters" for their company and employees. 8 He
recalled that on November 16, 1971, a registered letter addressed to Mrs. Lourdes Lacson c/o
Litton Mills was delivered to Mr. Avecilla. 9
The defense, before presenting the accused to testifying his own behalf, called Mrs. Lourdes R.
Lacson to the witness stand and asked her to introduce the letter of the cashier of Guardian
State Bank, Milwaukee, Wisconsin, dated October 27, 1972 addressed to Maria Paz R. Prado,
stating that "Cashiers Check No. 27166, payable to Miss Carmencita S. Rodriguez, has not
been paid as of this date." 10

4. Antonio Avecilla declared that as messenger of Litton Hills, it was his duty to get all the
incoming and outgoing mails of both the Pasig and Mandaluyong branches of Litton Mills, Inc.
He knew the complainant, Mrs. Lacson, because the latter was his co-employee at Litton Mills.
He often mailed the letters of Mrs. Lacson for her and would also get her mail from the post
office.
On November 16, 1971, he admitted having gotten from the Mandaluyong Post Office a
registered letter addressed to Mrs. Lacson by signing the name of Mrs. Lacson and his name on
the registry receipt. Once in the office, he left said letter on the table of Mrs. Lacson because at
that time she was already out as it was past 5:00 o'clock in the afternoon. He also said that
when he left the letter on the table, nobody was in the office. 11
On July 16, 1973, the trial court 12 rendered its decision finding accused-petitioner guilty beyond
reasonable doubt of simple theft. The dispositive part of the decision reads:
WHEREFORE, finding the evidence sufficient to prove the guilt of the accused
beyond reasonable doubt of the crime of Theft, pursuant to Article 308 and 309 of
the Revised Penal Code, and applying the Indeterminate Sentence Law, he is
hereby sentenced to an indeterminate penalty of SIX (6) MONTHS of arresto
mayor as minimum to ONE (1) YEAR, EIGHT (8) MONTHS, TWENTY-ONE (21)
DAYS of prision correccional as maximum.
SO ORDERED. 13
Not satisfied with the decision, petitioner appealed to the Court of Appeals, which on December
20, 1976, promulgated a decision finding accused-petitioner guilty of qualified theft instead of
simple theft. The dispositive portion of the decision reads:
WHEREFORE, the appealed decision is hereby modified in the sense that the
crime committed is hereby designated as qualified theft; and that the appellant is
hereby sentenced to suffer the indeterminate penalty of from FOUR (4) YEARS,
TWO (2) MONTHS AND ONE (1) DAY of prision correccional, as minimum, to
NINE (9) YEARS, FOUR (4) MONTHS AND ONE (1) DAY of prision mayor, as
maximum. In all other respects, the decision is affirmed, with costs against
accused-appellant.
IT IS SO ORDERED. 14
The motion for reconsideration having been denied, 15 petitioner elevated the case to the
Supreme Court by way of the instant petition for review on certiorari.
Petitioner contends that his constitutional right to due process had been violated both
substantially and procedurally. He was convicted of qualified theft instead of simple theft and
imposed a penalty eight times longer than his original sentence, and his motion for
reconsideration of the appellate court's decision was "denied in one stereo-typed
sentence." 16 He adds that his constitutional right to be informed of the nature and cause of the

accusation against him provided for in Art. IV, Sec. 19 of the 1971 Constitution and reiterated in
Rule 115, Sec. 1, par. (c) of the Rules of Court had also been violated.
Petitioner further argues that the Court of Appeals erred in convicting him of qualified theft just
because the information used the term "registered letter" when "not all registered letters is (sic)
mail matter." Because the information alleges that the registered letter belonged to Lourdes
Rodriguez de Lacson and considering Art. 723 of the Civil Code which provides that a letter
becomes the personal property of the addressee after it has been delivered, the crime charged
is only simple theft.
Petitioner bewails the vagueness of the information which resulted in his "bewilderment" as to
what precisely he had allegedly stolen for a registered letter per se cannot be worth $500.00. He
notes that the information does not state that the registered letter contained a check. Moreover,
he avers, the essential elements of theft, whether simple or qualified, had not been
substantiated by the facts proven. Thus, petitioner adds, it had not been shown that he knew
about the contents of the letter; there was no unlawful taking because the delivery of the letter
was made in the manner prescribed by postal regulations; the allegedly stolen property had not
been produced at all, and the prosecution relied solely on the "sheer self-serving testimony" of
the complaining witness. 17
Petitioner's allegations necessitate a scrutiny of the information imputing to him the commission
of a crime. It need not be overly stressed that the averments in the complaint or information
characterize the crime to be prosecuted and determine the court before which the case must be
tried. 18 What controls is not the designation of the offense but the description thereof as alleged
in the information. 19
A thorough examination of the information reveals that it contains all the essential elements of
the crime of theft, to wit: (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 or intimidation against persons or force upon things. 20
While it is true that petitioner could not have been "bewildered" as to the nature of the charge
against him had the information been more accurately crafted, it nonetheless contains all the
elements of the crime of theft. Thus, it is alleged therein that petitioner, with the aid of and in
conspiracy with an unidentified woman, willfully took away Registered Letter No. 24341
belonging to Lourdes Rodriguez de Lacson to her damage and prejudice. Although intent to gain
is not explicitly alleged in the information, it may be presumed from the allegation that the said
mail matter was unlawfully taken. 21 Since there is no allegation that the taking was
accomplished with violence or intimidation against persons or force upon things, it is apparent
that the charge is for the crime of theft rather than robbery.
The allegation that the subject of the taking is a registered letter categorizes the theft as a
qualified rather than a simple one. This is clear from the provision of Art. 310 of the Revised
Penal Code which states that qualified theft is committed if the property stolen is mail matter. In
this regard, petitioner's contention that not all registered letters are mail matter is incorrect.
Under Sec. 1945 of the Revised Administrative Code of 1917, first class mail matter includes

letters. For the greater security of valuable mail matter, Sec. 1962 of the same Code established
a registry system "under which the senders or owners of registered matter may be indemnified
for losses thereof in the mails, the indemnity to be paid out of postal revenues . . .
From the foregoing, it is clear that petitioner had not been deprived of his constitutional right to
be informed of the nature and cause of the accusation against him. Moreover, he may be
convicted of a crime and sentenced to the corresponding penalty as long as the facts alleged in
the information and proved at the trial constitute the crime for which he is convicted although
different from the crime designated and charged in the information. 22 The allegations in the
complaint against petitioner had been established beyond reasonable doubt at the trial. In this
regard, it should be pointed out that absolute certainty of guilt is not demanded by the law as
basis for conviction of any criminal charge, but moral certainty is required as to every
proposition of proof requisite to constitute the offense. 23 Moral certainty convinces and satisfies
the reason and conscience that a crime has indeed been committed. 24 This quantum of proof
has been satisfied in this case.
In his defense, petitioner relied solely on his own unsupported testimony. His story that after
taking delivery of the registered letter addressed to complainant Mrs. Lacson, he left it on her
desk after office hours when no one else was in the office strains credulity. In his attempt to
prove that he did not benefit from the bank draft of $400.00, he presented Mrs. Lacson herself
with a letter from the cashier of the Guardian State Bank in Milwaukee, Wisconsin to the effect
that the bank draft had not been paid. However, as in the crime of robbery, the fact that the
accused did not benefit from the articles taken does not affect the nature of the crime because
from the moment the offender gained possession of the thing, the unlawful taking is complete. 25
Petitioner's assertion that he took Mrs. Lacson's registered letter by following the postal
regulations and hence, he may not be liable for its "misdelivery," falls flat in the face of the
unrebutted proof that he even used a woman to misrepresent herself as Mrs. Lacson. Although
no one else witnessed the deception and Rosalinda Cervo could no longer describe the woman,
the undisputed fact remains that someone else other than Mrs. Lacson did sign the control book
and that, thereafter, petitioner took the letter with the bank draft of $400.00 which Mrs. Lacson
never received.
Although proof as to motive for the crime is essential when the evidence of the theft is
circumstantial, 26 the intent to gain or animus lucrandi is the usual motive to be presumed from
all furtive taking of useful property appertaining to another, unless special circumstances reveals
different intent on the part of the perpetrator. 27 As earlier noted, the intent to gain may be
presumed from the proven unlawful taking.
The Court of Appeals considered P6,000.00 as the equivalent of $400.00. Under Art. 309 (2) of
the Revised Penal Code, the penalty for theft involving said amount is prision correccional in its
minimum and medium periods, but considering that qualified theft is punishable by a penalty two
degrees higher, 28 petitioner should be imposed in penalty of prision mayor in its medium and
maximum periods. In the absence of aggravating and mitigating circumstances, the penalty
should be the medium period of said penalty or nine (9) years, four (4) months and one (1) day
of prision mayor medium to ten (10) years, eight (8) months and one (1) day of prision
mayor maximum. Hence, the Court of Appeals correctly applied the Indeterminate Sentence

Law and imposed the indeterminate sentence of four (4) years, two (2) months and one (1) day
of prision correccional maximum as minimum penalty to nine (9) years, four (4) months and one
(1) day of prision mayor medium as maximum penalty.
WHEREFORE, the modification of the decision of the trial court by the Court of Appeals finding
the accused-appellant guilty, not only of simple but qualified theft, being in order, the above
imposition of the penalty prescribed by the Indeterminate Sentence Law is CORRECT. Costs
against the appellant.
SO ORDERED.

PD 772

PRESCILLA TUATES and ANDRES DE LA PAZ,petitioners, vs. HON. LUCAS P.

BERSAMIN, as Presiding Judge, Branch 96, RTC Quezon City, People of the
Philippines and I.C. Construction, Inc., respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking
to annul the following: (1) Decision dated April 30, 1999 and Resolution dated June 9, 1999,
rendered by the Court of Appeals in CA-G.R. SP No. 46845;[1] (2) Decision dated September 10,
1997 and the Order dated January 28, 1998 issued by the Regional Trial Court of Quezon City
(Branch 96) in Criminal Cases Nos. Q-97-70428 and Q-97-70429; [2] and (3) Decision dated
December 16, 1996 of the Metropolitan Trial Court of Quezon City (Branch 38) in Criminal
Cases Nos. 38-0130 and 38-0131.[3]
The facts are as follows:
Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of Presidential
Decree No. 772 or the Anti-Squatting Law, petitioners Prescilla Tuates and Andres de la Paz,
appealed to the RTC of Quezon City (Branch 96). Their conviction was affirmed in toto by the
RTC in its decision dated September 10, 1997. Pending resolution of their motion for
reconsideration, however, Republic Act No. 8368, An Act Repealing Presidential Decree No.
772, entitled Penalizing Squatting and Other Similar Acts was enacted.
In its Order, dated January 28, 1998, the RTC ruled that only petitioners criminal
convictions were extinguished by R.A. 8368, and the civil aspect, i.e., the removal of petitioners
illegally constructed house and improvements, shall remain executory against them.[4]

On a petition for review, the Court of Appeals sustained the ruling of the RTC and denied
due course to the petition per its Decision, dated April 30, 1999. [5] Petitioners motion for
reconsideration was likewise denied by the CA in its Resolution dated June 9, 1999.[6]
Hence, the present recourse taken by petitioners, raising the following issues:
1. That petitioners, being charged with Violation of Presidential Decree No. 772, the express
repeal of said decree absolves the petitioners of any criminal or civil liability;
2. That public respondent erred in holding that the civil aspect of the judgment rendered x x x
shall be executory against the accused; and
3. That the Honorable Court of Appeals, in affirming the Order of the Regional Trial Court of
Quezon City (Branch 96), dated June 9, 1999, grossly erred in ignoring applicable laws and
jurisprudence.[7]
Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction of
both the criminal and civil aspects of the crime. Private respondent, however, insists that public
respondents were correct in ruling that only the criminal liability was absolved and the civil
liability remains inasmuch as it was not extinguished in accordance with Article 113 of the
Revised Penal Code, which reads:
ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil liability as
provided in the next preceding article, the offender shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by him, notwithstanding the fact that he has served
his sentence consisting of deprivation of liberty or other rights, or has not been required to serve
the same by reason of amnesty, pardon, commutation of sentence or any other reason.
In its Motion to Deny Due Course, private respondent also argues that the petition should
now be denied as its title to the land subject of this case has already been adjudged in its
favor. [8]
In its Comment, the Office of the Solicitor General, in behalf of public respondents, agrees
with petitioners that both the criminal and civil liability were rendered extinct with the repeal of
P.D. 772, and recommended that the assailed issuances be reversed and set aside.
We find the petition to be meritorious.
Republic Act No. 8368, otherwise known as the Anti-Squatting Law Repeal Act of 1997,
provides:
SECTION 1. Title. -- This Act shall be known as the Anti-Squatting Law Repeal Act of 1997.
SEC. 2. Repeal. -- Presidential Decree No. 772, entitled Penalizing Squatting and Other
Similar Acts is hereby repealed.

SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of Presidential
Decree No. 772 shall be dismissed upon the effectivity of this Act.
SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed to nullify,
eliminate or diminish in any way Section 27 of Republic Act No. 7279 or any of its provisions
relative to sanctions against professional squatters and squatting syndicates.
SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its publication in two (2)
newspapers of national circulation.
Approved, October 27, 1997.[9]
The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical, definite and
absolute. As such, the act that was penalized by P.D. 772, i.e., squatting, ceases to be criminal
under R.A. 8368, and the previous offense is obliterated. [10]
In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court of its
authority to punish a person charged with violation of the old law prior to its repeal. This is
because an unqualified repeal of a penal law constitutes a legislative act of rendering legal what
had been previously declared as illegal, such that the offense no longer exists and it is as if the
person who committed it never did so. [11]Specially so, as in the present case where it is
unconditionally stated inSection 3 of R.A. No. 8368 that: (A)ll pending cases under the
provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this
Act.[12] Obviously, it was the clear intent of the law to decriminalize or do away with the crime of
squatting. Hence, there being no criminal liability, there is likewise no civil liability because the
latter is rooted in the former. Where an act or omission is not a crime, no person can be held
liable for such act or omission. There being no delict, logically, civil liability ex delicto is out of
the question. [13]
In fact, in People v. Leachon, Jr.[14] we implicitly recognized the unconditional repeal of P.D.
772 by R.A. 8368 when we ordered the dismissal of the petition filed in said case, without any
qualification whatsoever, because of the enactment of R.A. 8368, viz.:
But the foregoing antecedent facts and proceedings notwithstanding, the petition cannot now
prosper because on October 27, 1997, Republic Act No. 8368, entitled An Act Repealing
Presidential Decree No. 772 Entitled Penalizing Squatting and Other Similar Acts was
enacted. Section 3 of the said Act provides that all pending cases under the provisions of
Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.[15]
This is not to say, however, that people now have the unbridled license to illegally occupy
lands they do not own. R.A. No. 8368[16] was unanimously approved by the members of the
Senate of the Philippines present on its third reading.[17] The legislature considered it a major
piece of legislation on the countrys anti-poverty program[18] as it sought to confront the perennial
problem of poverty at its root, abolish an otherwise inutile and oppressive law, and pave the way
for a genuine urban housing and land reform program. Senate records reveal that it is the
manifest intent of the authors of R.A. 8368 to decriminalize squatting but does not encourage or
protect acts of squatting on somebody elses land.[19] The law is not intended to compromise the

property rights of legitimate landowners. [20] Recourse may be had in cases of violation of their
property rights, such as those provided for in Republic Act No. 7279 or the Urban Development
and Housing Act, penalizing professional squatters and squatting syndicates as defined therein,
who commit nefarious and illegal activities [21]; the Revised Penal Code providing for criminal
prosecution in cases of Trespass to Property,[22] Occupation of Real Property or Usurpation of
Real Rights in Property,[23] and similar violations, and, cases for Forcible Entry and Unlawful
Detainer under the Rules of Court,[24] as well as civil liability for Damages under the Civil Code.
Considering that prosecution for criminal as well as civil liability under P.D. 772 has been
rendered nugatory with the passage of R.A. 8368, both criminal and civil aspects of Criminal
Cases Nos. Q-97-70428 and Q-97-70429 in the RTC as well as Criminal Cases Nos. 38-0130
and 38-0131 in the MTC filed against petitioners should be dismissed.
WHEREFORE, finding the petition for review to be with merit, the Decision dated April 30,
1999 of the Court of Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE. A new
judgment is hereby entered modifying the Decision dated September 10, 1997 of the Regional
Trial Court of Quezon City (Branch 96) in Criminal Cases No. Q-97-70428 and Q-97-70429 and
the Decision dated December 16, 1996 issued by the Metropolitan Trial Court of Quezon City
(Branch 38), to the effect that the dismissal of the aforementioned criminal cases likewise
include the dismissal of the civil aspects thereof, without prejudice to the filing of civil and/or
criminal actions under the prevailing laws.
No costs.
SO ORDERED.