Republic of the Philippines

SUPREME COURT
Manila

Cagayan. The RTC found accused Bernard G. Mirto guilty beyond

reasonable doubt of the crime of Qualified Theft.

THIRD DIVISION
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,

The Courts Ruling

G.R. No. 193479

Present:

The appeal is bereft of merit.

VELASCO, JR., J., Chairperson,
PERALTA,
ABAD,
Accused-appellant argues that the prosecution failed:
MENDOZA, and
PERLAS-BERNABE,
(a) To establish that he had material possession of the
Promulgated:
funds in question;

- versus -

BERNARD G. MIRTO,
Accused-Appellant.
October 19, 2011
x----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:

(b) To refute the authority given to him by UCC;

(c) To establish the element of taking under Art. 308 of
the Revised Penal Code (RPC);
(d) To establish that the funds were taken without the
consent and knowledge of UCC;
(e) To establish the element of personal property under
Art. 308 of the RPC; and

The Case

This is an appeal from the Decision [1] dated August 24, 2009 of the

(f) To establish, in sum, the ultimate facts constitutive of

the crime of Qualified Theft under Art. 310, in
relation to Art. 308, of the RPC.

Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03444, which affirmed the
March 24, 2008 Decision[2] in Criminal Case Nos. 9034, 9115, 9117 and
9130 of the Regional Trial Court (RTC), Branch 5 in Tuguegarao City,

For being closely related, We will discuss together the arguments

thus raised.

Article 308 of the Revised Penal Code (RPC), which defines Theft,
provides:

Theft is qualified under Art. 310 of the RPC, when it is, among
others, committed with grave abuse of confidence, thus:

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 objects of the damage caused by him;
and
3. Any person who shall enter an enclosed 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 fruits, cereals, or other
forest or farm products.
Thus, the elements of the crime of Theft are: (1) there was a taking
of personal property; (2) the property belongs to another; (3) the taking was
without the consent of the owner; (4) the taking was done with intent to
gain; and (5) the taking was accomplished without violence or intimidation
against the person or force upon things.[13]

ART. 310. Qualified Theft.The crime of theft

shall be punished by the penalties next higher by two
degrees than those respectively specified in the next
preceding article, if committed by a domestic servant, or
with grave abuse of confidence, or if the property stolen
is motor vehicle, mail matter or large cattle or consists of
coconuts taken from the premises of a plantation, fish
taken from a fishpond or fishery or if property is taken on
the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil
disturbance. (Emphasis supplied.)

The elements of Qualified Theft committed with grave abuse of

confidence are as follows:
1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owners consent;
5. That it be accomplished without the use of violence or
intimidation against persons, nor of force upon
things;
6. That it be done with grave abuse of confidence.
[14]
(Emphasis supplied.)

All of the foregoing elements for Qualified Theft are present in this
case.

were cleared.For another, accused-appellant could not explain why he

deposited some of the checks he collected in the accounts of Magno Lim in
MetroBank (MBTC Account No. 124-5) and Equitable PCIBank (EPCIB

First. The presence of the first and second elements is abundantly

Account No. 71820-8). Moreover, accused-appellants contention of such

clear. There can be no quibble that the fund collections through checks

alleged management practice[15] is unsupported by any evidence showing

paymentsall issued payable to cashare personal properties belonging to

that prior to the events in mid-2001 there was indeed such a practice of

UCC. These funds through checks were paid by UCC clients for the

depositing check collections and remitting the proceeds once the checks

deliveries of cement from UCC. One with the courts a quo, We will not

cleared.

belabor this point in the fifth argument raised by accused-appellant.

Second. The third element is likewise abundantly clear. The

Third. The element of intent to gain is amply established through

collected amounts subject of the instant case belonged to UCC and not to

the affidavit[16] of Wilma Invierno of Rommeleens Enterprises, one of UCCs

accused-appellant. When accused-appellant received them in the form of

customers, who confirmed that she had been sold cement bags instead of to

Pay to Cash checks from UCC customers, he was obliged to turn them over

dealers with credit lines and she was required by accused-appellant to issue

to UCC for he had no right to retain them. That he kept the checks and

pay to cash checks as payment. The affidavits of Arthur Alonzo[17] of Alonzo

deposited them in his account and in the accounts of Magno Lim knowing

Trucking, Robert Cokee[18] of Philippine Lumber, and Russel Morales [19] of

all the while that these checks and their proceeds were not his only proves

Mapalo Trucking similarly attested to the same type of sale and payment

the presence of unlawful taking.

arrangement. In so doing, accused-appellant facilitated the collection of pay

to cash checks which he deposited in his bank account and in the bank

As the trial court aptly pointed out, accused-appellants theory that

he only kept the funds in trust for UCC with the elaborate explanation that

accounts of Magno Lim. Thus, the fourth element of intent to gain is duly
proved.

once the checks cleared in his account then he remits them to UCC is
completely incredulous. For one, accused-appellant has not adduced

Fourth. Equally clear and undisputed is the presence of the fifth

evidence that he indeed remitted the funds once the corresponding checks

element. Accused-appellant admitted having received these checks and

depositing them in his personal account and in the accounts of Magno

undertaken by UCC argues against the notion that it consented to accused-

Lim. Thus, the element of taking was accomplished without the use of

appellants act of depositing of check proceeds from company sales of

violence or intimidation against persons, nor of force upon things.

cement products in his account or in the accounts of Magno Lim.

Fifth. That UCC never consented to accused-appellants depositing

Sixth. That accused-appellant committed the crime with grave

the checks he collected in his or other accounts is demonstrated by the

abuse of confidence is clear. As gathered from the nature of his position,

immediate action UCC took upon being apprised of the misappropriation

accused-appellant was a credit and collection officer of UCC in the

and accused-appellants confession letter. UCC lost no time in forming a

Cagayan-Isabela area. His position entailed a high degree of confidence,

special audit group from the Group Internal Audit of Phinma Group of

having access to funds collected from UCC clients. In People v. Sison,

Companies. The special audit group conducted an internal audit from July 3

[22]

to 25, 2001 and submitted a Special Audit Report [20] dated August 8, 2001,

International Bank (PCIB), the Court upheld the appellants conviction of

showing that the total unremitted collections of accused-appellant from the

Qualified Theft, holding that the management of the PCIB reposed its trust

period covering May 25, 2001 through June 23, 2001 amounted to PhP

and confidence in the appellant as its Luneta Branch Operation Officer, and

6,572,750.

it was this trust and confidence which he exploited to enrich himself to the

involving a Branch Operation Officer of Philippine Commercial

damage and prejudice of PCIB x x x.[23] In People v. Mercado,[24] involving a

AVP Santos and UCC SVP and Head of Marketing Group Dr.
Felizardo met with accused-appellant who admitted misappropriating

manager of a jewelry store, the Court likewise affirmed the appellants

conviction of Qualified Theft through grave abuse of confidence.

company funds. AVP Santos testified[21] in open court on what transpired in

that meeting and accused-appellants verbal admission/confession. And with

In the instant case, it is clear how accused-appellant, as Branch

the findings of the auditors that not only did accused-appellant unlawfully

Manager of UCC who was authorized to receive payments from UCC

take UCC funds but he also committed the offense of violating company

customers, gravely abused the trust and confidence reposed upon him by the

policies, rules, and regulations, UCC was compelled to file seven criminal

management of UCC. Precisely, by using that trust and confidence,

complaints against accused-appellant. This swift and prompt action

accused-appellant was able to perpetrate the theft of UCC funds to the grave

prejudice of the latter. To repeat, the resulting report of UCCs internal audit
showed that accused-appellant unlawfully took PhP 6,572,750 of UCCs
funds.

To whom it may concern:

This is to certify that to my knowledge, the owner of the
following bank accounts are as follows:
Bank account Owner

The courts a quos finding that accused-appellant admitted

misappropriating UCCs funds through the appropriation of the subject
checks is buttressed by the testimonies of Renolo and Santos, [25] who heard

SBC TUG 0301261982001 B. G. Mirto

MBTC TUG 124-5 Magno Lim
EPCI TUG 71320-8 Magno Lim
This certification is issued for whatever purpose it may
serve.

and understood accused-appellants extrajudicial confession. True enough,

they were competent to testify as to the substance of what they heard from

(Sgd.) Bernard G. Mirto 7/20/01

Signature over printed name date

accused-appellanthis declaration expressly acknowledging his guilt to the

offensethat may be given in evidence against him.[26]

Further, as can be amply gleaned from accused-appellants

handwritten admission and duly borne out by the internal audit teams

That he deposited most of the subject checks in his account was

proved by accused-appellants statement of account with SBTC (Account

findings, he deliberately used a scheme to perpetrate the theft. This was

aptly pointed out by the CA, which We reproduce for clarity:

No. 0301-261982-001) through the testimony of Conchito Dayrit, the

Customer Service Officer and representative of SBTC-Tuguegarao City
Branch.[27]

Moreover, accused-appellant issued a written certification [28] dated

July 20, 2001, attesting to the fact of the ownership of the bank accounts
where he deposited the checks he collected from UCC clients, which reads:
07/20/01

UCC found that accused-appellant gravely

abused the trust and confidence reposed on him as Branch
Manager and violated company policies, rules and
regulations. He did not remit collections from
customers who paid Pay to Cash checks. He used the
credit line of accredited dealers in favor of persons
who did not have credit lines or other dealers who had
exhausted their credit line.He diverted cement bags
from Norzagaray Plant or La Union Plant to truckers
who would buy cement for profit. In these
transactions, he instructed dealers that check be made
in the form of pay to cash. He did not issue them
receipts. The checks were either encashed or deposited

to accused-appellants personal account No. 0301261982-001 at Security Bank & Trust Co. (SBTC)
Tuguegarao Branch or deposited to the accounts of a
certain Mr. Magno Lim maintained at MetroBank and
EquitablePCIBank, both located at Tuguegarao City.
[29]
(Emphasis supplied.)

Defense of Agency Unavailing

As his main defense, accused-appellant cites the testimonies of

prosecution witnesses Restituto Renolo and Reynaldo Santos to impress
upon the Court that he is an agent of UCC. And as an agent, so he claims,

It is, thus, clear that accused-appellant committed Qualified

Theft. And as duly pointed out above, even considering the absence of the

an implied trust is constituted by his juridical possession of UCC funds

from the proceeds of cement sales:

handwritten extrajudicial admission of accused-appellant, there is more than

sufficient evidence adduced by the prosecution to uphold his conviction. As
aptly pointed out by the trial court, the prosecution has established the
following:
1.

That checks of various customers of UCC were

written out as bearer instruments. Payments in cash
were also made.

2.

These were received by the accused Mirto who

deposited them in his personal account as well as in
the account of Mr. Magno Lim.

3.

The monies represented by the checks and the case

payments were consideration for bags of cement
purchased from the UCC, the complainantcorporation.

4.

The accused Mirto was never authorized nor was it

part of his duties as branch manager to deposit these
proceeds in his account or in the account of Mr.
Magno Lim.[30]

ATTY. CARMELO Z. LASAM: Mr. Renolo, can you tell

us the specific duties and responsibilities of your
area sales managers?
RESTITUTO RENOLO: The duties and responsibilities
of an area sales officer, we are in charge of the
distribution of our products, cement and likewise
its collection of its sales.[31]
xxxx
ATTY. RAUL ORACION: Okay, now as Assistant VicePresident for Marketing and supervisor of all
area sales offices and branch managers, could
you tell the duties and responsibilities of the
accused Bernard Mirto at that time?
REYNALDO SANTOS: x x x, also collect sales and for
the cash for the collection of our sales.[32]

To accused-appellant, he had authority to collect and accept

payments from customers, and was constituted an agent of UCC. As
collection agent of UCC, he asserts he can hold the collections in trust and

in favor of UCC; and that he is a trustee of UCC and, therefore, has juridical

Proper Penalty

possession over the collected funds. Consequently, accused-appellant

maintains there was no unlawful taking, for such taking was with the
knowledge and consent of UCC, thereby negating the elements of taking
personal property and without the owners consent necessary in the crime of
Qualified Theft.
This contention fails.

The trial court, as affirmed by the appellate court, sentenced

accused-appellant to restitute UCC the aggregate amount of PhP 2,279,350,
representing the amount of the checks involved here. The trial court also
imposed the single penalty of reclusion perpetua. Apparently, the RTC
erred in imposing said single penalty, and the CA erred in affirming it,
considering that accused-appellant had been convicted on four (4) counts of
qualified theft under Criminal Case Nos. 9034, 9115, 9117 and

The duty to collect payments is imposed on accused-appellant

because of his position as Branch Manager. Because of this employer-

9130. Consequently, accused-appellant should have been accordingly

sentenced to imprisonment on four counts of qualified theft with the
appropriate penalties for each count. Criminal Case No. 9034 is for PhP

employee relationship, he cannot be considered an agent of UCC and is not

308,200, Criminal Case No. 9115 is for PhP 688,750, Criminal Case No.

covered by the Civil Code provisions on agency. Money received by an

9117 is for PhP 1,213,900, and Criminal Case No. 9130 is for 68,500 for the

employee in behalf of his or her employer is considered to be only in the

aggregate amount of PhP 2,279,350.

material possession of the employee. [33]

Now to get the proper penalty for each count, We refer to People v.
Mercado,[34] where We established that the appropriate penalty for Qualified
Theft is reclusion perpetua based on Art. 310 of the RPC, which provides

The fact that accused-appellant had authority to accept payments

that [t]he crime of [qualified] theft shall be punished by the penalties

from customers does not give him the license to take the payments and

next higher by two degrees than those respectively specified in [Art.

deposit them to his own account since juridical possession is not transferred

309] x x x. (Emphasis supplied.)

to him. On the contrary, the testimony he cites only bolsters the fact that
accused-appellant is an official of UCC and had the trust and the confidence

Applying the computation made in People v. Mercado to the present case to

arrive at the correct penalties, We get the value of the property stolen as

of the latter and, therefore, could readily receive payments from customers

determined by the trial court, which are PhP 308,200, PhP 688,750, PhP

for and in behalf of said company.

1,213,900 and PhP 68,500. Based on Art. 309[35] of the RPC, since the value
of the items exceeds P22,000.00, the basic penalty is prision mayor in its

minimum and medium periods to be imposed in the maximum period,

[36]

which is 8 years, 8 months and 1 day to 10 years of prision mayor.

penalties of reclusion perpetua for four counts of Qualified Theft, accusedappellant shall suffer imprisonment for a period not exceeding 40 years.

And in order to determine the additional years of imprisonment,

WHEREFORE, the appeal is hereby DENIED. The appealed CA

following People v. Mercado, We deduct PhP 22,000 from each amount and

Decision dated August 24, 2009 in CA-G.R. CR-H.C. No. 03444

each difference should then be divided by PhP 10,000, disregarding any

is AFFIRMED with MODIFICATION in that accused-appellant Bernard

amount less than PhP 10,000. We now have 28 years, 66 years, 119 years

G. Mirto is convicted of four (4) counts of Qualified Theft and accordingly

and 4 years, respectively, that should be added to the basic penalty. But the

sentenced to serve four (4) penalties of reclusion perpetua. But with the

imposable penalty for simple theft should not exceed a total of 20

application of Art. 70 of the RPC, accused-appellant shall suffer the penalty

years. Therefore, had accused-appellant committed simple theft, the penalty

of imprisonment for a period not exceeding 40 years.

for each of Criminal Case Nos. 9034, 9115 and 9117 would be 20 years
of reclusion temporal; while Criminal Case No. 9130 would be from 8

Costs against accused-appellant.

years, 8 months and 1 day of prision mayor, as minimum, to 14 years

of reclusion temporal, as maximum, before the application of the
Indeterminate Sentence Law. However, as the penalty for Qualified Theft is

SO

ORDERED.

two degrees higher, the correct imposable penalty isreclusion perpetua for
each count.
In fine, considering that accused-appellant is convicted of four (4)
counts of Qualified Theft with corresponding four penalties of reclusion
perpetua, Art. 70 of the RPC onsuccessive service of sentences shall
apply. Art. 70 pertinently provides that the maximum duration of the
convicts sentence shall not be more than threefold the length of time
corresponding to the most severe of the penalties imposed upon him. No
other penalty to which he may be liable shall be inflicted after the sum total
of those imposed equals the said maximum period. Such maximum period
shall in no case exceed forty years. Applying said rule, despite the four

[1]

Rollo, pp. 2-14. Penned by Associate Justice Martin S.

Villarama, Jr. (now a member of this Court) and concurred in by Associate
Justices Magdangal M. de Leon and Ricardo R. Rosario.
[2]
CA rollo, pp. 15-28. Penned by Presiding Judge Jezarene C.
Aquino.
[3]
Records, Vol. 1, p. 1.
[4]
Rollo, pp. 3-5.
[5]
Records, Vol. 1, p. 38.
[6]
CA rollo, pp. 26-28.
[7]
Records, Folder of Formal Offer of Prosecutions Evidence, pp.
27-28, Exhibit A.
[8]
Rollo, p. 14.
[9]
[It is well-settled that when the money, goods, or any other
personal property is received by the offender from the offended party in
trust or on commission or for administration, the offender acquires both
material or physical possession and juridicalpossession of the thing

received.] Juridical possession means a possession which gives the

transferee a right over the thing which the transferee may set up even
against the owner (Chua-Burce v. Court of Appeals, G.R. No. 109595, April
27, 2000, 331 SCRA 1, 13, cited in Matrido v. People, G.R. No. 179061,
July 13, 2009, 592 SCRA 534, 544).
[10]
Rollo, pp. 25-27, dated January 6, 2011.
[11]
Id. at 39-40, Manifestation and Motion dated April 18, 2011.
[12]
Id. at 41.
[13]
Cruz v. People, G.R. No. 176504, September 3, 2008, 564
SCRA 99, 110; citing People v. Bago, G.R. No. 122290, April 6, 2000, 330
SCRA 115, 138-139.
[14]
People v. Puig, G.R. Nos. 173654-765, August 28, 2008, 563
SCRA 564, 570; Roque v. People, G.R. No. 138954, November 25, 2004,
444 SCRA 98, 120.
[15]
Rollo, p. 61.
[16]
Records, Folder of Formal Offer of Prosecutions Evidence, p.
39, Exhibit N.
[17]
Id. at 35, Exhibit K.
[18]
Id. at 253-254, Exhibit Z.
[19]
Id. at 264-265, Exhibit II.
[20]
Id. at 39-50, Exhibit O.
[21]
TSN, November 17, 2004.
[22]
G.R. No. 123183, January 19, 2000, 322 SCRA 345.
[23]
Id. at 364-365.
[24]
G.R. No. 143676, February 19, 2003, 397 SCRA 746.
[25]
Testimony of Restituto Renolo, TSN, September 23, 2003;
testimony of Reynaldo Santos, TSN, November 17, 2004.
[26]
People v. Mercado, supra note 24, at 752-753; citing People v.
Maqueda, G.R. No. 112983, March 22, 1995, 242 SCRA 565, 590.
[27]
TSN, July 27, 2006, pp. 28-29.
[28]
Records, Folder of Formal Offer of Prosecutions Evidence, p.
28, Exhibit B.
[29]
Rollo, pp. 4-5.
[30]

CA rollo, pp. 25-26.

TSN, September 23, 2003, p. 26.
[32]
TSN, November 17, 2004, p. 27.
[33]
Matrido v. People, G.R. No. 179061, July 13, 2009, 592 SCRA
534, 543.
[34]
Supra note 24.

[35]

Art. 309(1) of the RPC on simple theft provides:

1. The penalty of prision mayor in its minimum and medium
periods, if the value of the thing stolen is more than 12,000 pesos but does
not exceed 22,000 pesos; but if the value of the thing stolen exceeds the
latter amount, the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand
pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as
the case may be.
[36]
People v. Mercado, supra note 24, at 758.

Dear PAO,
I am a 3rd year college student somewhere in Manila. One day, I left
my iPad mini inside our classroom. After almost a week, I saw the
said gadget in my classmates bag. But when I tired to talk to him, he
denied that it was my iPad mini. I am one hundred percent sure that
it was really my iPad mini. What case can I file against my
classmate?
Claire
Dear Claire,

[31]

As clearly provided under the law, whoever finds a lost property but
fails to return the same to its owner or the local authorities shall be

guilty of the crime of theft. This is according to Article 308 of the

shall immediately deposit it with the mayor of the city or municipality

Revised Penal Code of the Philippines, which states:

where the finding has taken place.

Art. 308. Who are liable for theft Theft is committed by any

The finding shall be publicly announced by the mayor for two

person who, with intent to gain but without violence against or

consecutive weeks in the way he deems best.

intimidation of persons nor force upon things, shall take personal

If the movable cannot be kept without deterioration, or without

property of another without the latters consent.

expenses which considerably diminish its value, it shall be sold at

Theft is likewise committed by:

public auction eight days after the publication.

1. Any person who, having found lost property, shall fail to deliver the

Six months from the publication having elapsed without the owner

same to the local authorities or to its owner; xxx

having appeared, the thing found, or its value, shall be awarded to

As explicitly stated in the aforementioned law, theft is not only

the finder. The finder and the owner shall be obliged, as the case

committed by the intentional taking of anothers property but likewise

may be, to reimburse the expenses.

by failure to return a lost thing to its owner or to turn it over to the

As explained above, if you are certain that the gadget you saw in

local authorities.

your classmates bag really belongs to you and you can prove it, then

The provision of Article 719 of the New Civil Code of the Philippines

he may be held criminally liable for theft.

is applicable to the foregoing discussion as it directs the finder of a

Again, we find it necessary to mention that this opinion is solely

lost thing or property to return the same to its owner or to the proper

based on the facts you have narrated and our appreciation of the

authority. It specifically provides:

same. The opinion may vary when the facts are changed or

Art. 719. Whoever finds a movable, which is not treasure, must

elaborated.

return it to its previous possessor. If the latter is unknown, the finder

We hope that we were able to enlighten you on the matter.

Qualified theft defined; proper penalty explained

Item No

"x x x.

The elements of the crime of theft as provided for in Article

3089 of the Revised Penal Code are as follows: (1) that there
be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent
to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished without
the use of violence against or intimidation of persons or
force upon things.10 Theft becomes qualified when any of
the following circumstances under Article 31011 is present:
(1) the theft is committed by a domestic servant; (2) the
theft is committed with grave abuse of confidence; (3) the
property stolen is either a motor vehicle, mail matter or
large cattle; (4) the property stolen consists of coconuts
taken from the premises of a plantation; (5) the property
stolen is fish taken from a fishpond or fishery; and (6) the
property was taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance.12

Here, the prosecution was able to prove beyond reasonable

doubt that the amount of P797,187.85 taken does not
belong to petitioner but to VCCI and that petitioner took it
without VCCIs consent and with grave abuse of confidence
by taking advantage of her position as accountant and

bookkeeper. The prosecutions evidence proved that

petitioner was entrusted with checks payable to VCCI or
Viva by virtue of her position as accountant and bookkeeper.
She deposited the said checks to the joint account
maintained by VCCI and Jefferson Tan, then withdrew a total
of P797,187.85 from said joint account using the pre-signed
checks, with her as the payee. In other words, the bank
account was merely the instrument through which petitioner
stole from her employer VCCI.

xxx

We find no cogent reason to disturb the above findings of

the trial court which were affirmed by the CA and fully
supported by the evidence on record. Time and again, the
Court has held that the facts found by the trial court, as
affirmed in toto by the CA, are as a general rule, conclusive
upon this Court13 in the absence of any showing of grave
abuse of discretion. In this case, none of the exceptions to
the general rule on conclusiveness of said findings of facts
are applicable.14 The Court gives weight and respect to the
trial courts findings in criminal prosecution because the
latter is in a better position to decide the question, having
heard the witnesses in person and observed their
deportment and manner of testifying during the trial.15
Absent any showing that the lower courts overlooked
substantial facts and circumstances, which if considered,
would change the result of the case, this Court gives
deference to the trial courts appreciation of the facts and of
the credibility of witnesses.

Moreover, we agree with the CA when it gave short shrift to

petitioners argument that full ownership of the thing stolen
needed to be established first before she could be convicted
of qualified theft. As correctly held by the CA, the subject of
the crime of theft is any personal property belonging to
another. Hence, as long as the property taken does not
belong to the accused who has a valid claim thereover, it is
immaterial whether said offender stole it from the owner, a
mere possessor, or even a thief of the property.16 In any
event, as stated above, the factual findings of the courts a
quo as to the ownership of the amount petitioner stole is
conclusive upon this Court, the finding being adequately
supported by the evidence on record.

However, the total imposable penalty for simple theft should

not exceed 20 years. Thus, had petitioner committed simple
theft, the penalty would be 20 years of reclusion temporal.
As the penalty for qualified theft is two degrees higher, the
trial court, as well as the appellate court, should have
imposed the penalty of reclusion perpetua."

Theft [Art. 308-311]

Chapter Three

THEFT
However, notwithstanding the correctness of the finding of
petitioners guilt, a modification is called for as regards the
imposable penalty. On the imposition of the correct penalty,
People v. Mercado17 is instructive. Pursuant to said case, in
the determination of the penalty for qualified theft, note is
taken of the value of the property stolen, which is
P797,187.85 in this case. Since the value exceeds
P22,000.00, the basic penalty is prision mayor in its
minimum and medium periods to be imposed in the
maximum period, that is, eight (8) years, eight (8) months
and one (1) day to ten (10) years of prision mayor.

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;

To determine the additional years of imprisonment to be

added to the basic penalty, the amount ofP22,000.00 is
deducted from P797,187.85, which yields a remainder of
P775,187.85. This amount is then divided by P10,000.00,
disregarding any amount less than P10,000.00. The end
result is that 77 years should be added to the basic penalty.

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.

Art. 309. Penalties. Any person guilty of theft shall be

punished by:

1. The penalty of prision mayor in its minimum and medium

periods, if the value of the thing stolen is more than 12,000
pesos but does not exceed 22,000 pesos, but if the value of
the thing stolen exceeds the latter amount the penalty shall
be the maximum period of the one prescribed in this
paragraph, and one year for each additional ten thousand
pesos, but the total of the penalty which may be imposed
shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and

maximum periods, if the value of the thing stolen is more
than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and

medium periods, if the value of the property stolen is more
than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional

in its minimum period, if the value of the property stolen is
over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5

pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if

such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the

theft is committed under the circumstances enumerated in
paragraph 3 of the next preceding article and the value of
the thing stolen does not exceed 5 pesos. If such value
exceeds said amount, the provision of any of the five
preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not

exceeding 50 pesos, when the value of the thing stolen is
not over 5 pesos, and the offender shall have acted under
the impulse of hunger, poverty, or the difficulty of earning a
livelihood for the support of himself or his family.

being designated to bill and collect from sub-gauarantors and

Art. 310. Qualified theft. The crime of theft shall be
punished by the penalties next higher by two degrees than
those respectively specified in the next preceding article, if
committed by a domestic servant, or with grave abuse of
confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the
premises of the plantation or fish taken from a fishpond or
fishery, or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic erruption, or any other
calamity, vehicular accident or civil disturbance. (As
amended by R.A. 120 and B.P. Blg. 71. May 1, 1980).

to encash and deposit checks to her (Juanitas) account. On

July 15, 2004, Mera Joy collected from the sub-guarantors the
amount of P640,353.86, but did not deposit it to Juanitas
account. Instead she issued 15 personal checks which were
subsequently dishonoured upon presentment for payment as
the account was closed.

The RTC convicted him as charged, finding abuse of confidence

Art. 311. Theft of the property of the National Library and
National Museum. If the property stolen be any property
of the National Library or the National Museum, the penalty
shall be arresto mayor or a fine ranging from 200 to 500
pesos, or both, unless a higher penalty should be provided
under other provisions of this Code, in which case, the
offender shall be punished by such higher penalty.

on her part. In her appeal to the Court of Appeals, Mera Joy

posits that since Juanita was abroad on July 15, 2004, she
could not have known whether she (Mera) indeed collected the
checks; the mere issuance of the 15 checks does not prove that
indeed she collected the amount from the sub-guarantors or
failed to remit it to Juanita. She theorised that the checks might
have been issued by her to the sub-guarantors as a result of

The Facts:
Juanita (Flores), the private complainant, was engaged in the
business of guaranteeing purchase orders and gift checks from
Shoemart and Landmark and disposing them for consideration.
She initially hired Mera Joy (Eleuterio) as house help but was
transferred to her office performing clerical jobs, eventually

some transaction between them, and the sub-guarantors used it

to pay their obligation to Juanita. The CA disbelieved the theory
proffered by Mera, and disregarded her contention on the fact
that Juanita was abroad at the time of the commission of the
crime, being then immaterial to the crime itself. Mera Joy

elevated her case to the Supreme Court. She maintains that the

taking of the amount collected by Accused-appellant was

mere issuance of the checks does not prove unlawful taking.

obviously done with intent to gain as she failed to remit the

same to Private Complainant. Intent to gain is presumed from

The Issue/s:
1.Whether Mera Joy may be held liable for Qualified Theft;

The Courts ruling:

We concur with the findings of the trial court and the Court of
Appeals that the prosecution satisfactorily established all the
elements of qualified theft, to wit: 1) taking of personal
property; 2) that said property belongs to another; 3) that the
said taking was done with intent to gain; 4) that it was done
without the owners consent; 5) that it was accomplished
without the use of violence or intimidation against persons, or
of force upon things; and 6) that it was done with grave abuse
of confidence.1 As correctly found by the appellate court:
Private complainant testified that Accused-appellant took the
amount of P640,353.86 from her without her consent by failing
to turn over the amount she collected from the formers subguarantors. Instead, she issued fifteen (15) personal checks
and deposited the same to Private Complainants account which
however, all bounced for the reason account closed. The

the act of unlawful taking. Further, the unlawful act was

accomplished by Accused-appellant without the use of violence
or intimidation against persons, [or] of force upon things as the
payment to her of the said amount was voluntarily handed to
her by the sub-guarantors as she was known to be entrusted
with the collection of payments.

The circumstance of grave abuse of confidence that made the

same as qualified theft was also proven. Accused-appellant
herself testified that as a cashier, her functions and
responsibilities include billings and collections from their
agents and making of deposits and withdrawals in behalf of
Private Complainant. Moreover, when the payment for the
purchase orders or gift checks becomes due, she would fill up
the four (4) blank checks given by the sub-guarantor with the
knowledge and consent of Private Complainant. It is beyond
doubt that an employee like a cashier who comes into
possession of the monies she collected enjoys the confidence
reposed in her by her employer, as in the instant case. 2

We are one with the trial court and the appellate court in finding

That is not true, sir.

that the element of taking of personal property was

satisfactorily established by the prosecution. During her crossexamination, private complainant Flores testified that upon

Atty. Regino Question:

What is your basis in stating that?

having been apprised of the unremitted collections, she

conducted an investigation and inquired from her subguarantors who admitted making payments to appellant.

Witness:
3

She

also testified during cross-examination that when appellant

I never took that six hundred forty thousand that they are

arrived from Hongkong, the latter went to Flores office and

saying and, I never signed any document with the sub-

admitted to having converted the collections to her personal

guarantors that I [took] money from them.5

use.4 Interestingly, when it was her turn to testify, appellant did

Notably, when Flores testified during her cross-examination that

not rebut Flores testimony. During her direct examination,

she talked to the sub-guarantors who admitted having made

appellant only testified thus:

payments to appellant, the latters counsel no longer made

Atty. Regino Question:

further clarifications or follow-up questions. Thus, Flores

testimony on this fact remains on record unrebutted. Clearly, it

Madam Witness, you are being charged here with taking,

is futile on the part of the appellant to belatedly claim in her

stealing and carrying away collected money in the total amount

Brief before the appellate court that the prosecution should

of P640,353.86, that is owned by Juanita J. Flores. What can

have presented these sub-guarantors so they could be cross-

you say about this allegation?

examined6 There is likewise no merit in her contention that the

prosecution is guilty of suppression of evidence when they did

Witness:

not present these sub-guarantors7 simply because the defense,

on its own initiative, could very well compel, thru the

compulsory processes of the court, the attendance of these

belonging to Flores, how come she issued 15 personal checks

sub-guarantors as witnesses8. Moreover, we note that

in favor of the latter and deposited the same in her account,

appellant did not even attempt to discredit the testimony of

albeit they were subsequently dishonored? Besides, we note

Flores to the effect that upon her arrival from Hongkong,

that in appellants Counter Affidavit11 dated August 20, 2004

appellant went to Flores office and admitted to having

subscribed before 3rd Assistant City Prosecutor Hannibal S.

committed the offense.

Santillan of Makati City, she already admitted having taken

Significantly, when appellant was placed on the witness stand,

without the knowledge and consent of private complainant

she did not even make any attempt to explain her issuance of

several purchase orders and gift checks worth thousands of

the 15 checks. In fact, during her entire testimony, she never

pesos. She claimed though that she was only forced to do so

made any mention about the personal checks that she issued

by Edna Cruz and cohorts.

and deposited in Flores account. It was only in her

We also concur with the findings of the trial court and the CA

Memorandum9 filed with the trial court and her Brief10 submitted

that the prosecution established beyond reasonable doubt that

to the appellate court that the same was discussed. However,

the amount of P640,353.86 actually belonged to Flores; that

her explanation as to its issuance is so convoluted that it defies

appellant stole the amount with intent to gain and without

belief. All that appellant could claim is that the issuance of the

Flores consent; that the taking was accomplished without the

checks only proves that the same was for a consideration but

use of violence or intimidation against persons, or of force

omitted to explain what the consideration was. She also

upon things; and that it was committed with grave abuse of

theorized that she might have issued the checks to the sub-

confidence.

guarantors for her personal transactions but likewise failed to

elaborate on what these transactions were. In any event, if
indeed appellant did not steal the amount of P640,353.86

Anent the penalty imposed, Articles 309 and 310 of the Revised
Penal Code state:

Art. 309. Penalties. Any person guilty of theft shall be punished

matter or large cattle or consists of coconuts taken from the

by:

premises of the plantation or fish taken from a fishpond or

fishery, or if property is taken on the occasion of fire,

The penalty of prision mayor in its minimum and medium

periods, if the value of the thing stolen is more than 12,000

earthquake, typhoon, volcanic eruption, or any other calamity,

vehicular accident or civil disturbance.

pesos but does not exceed 22,000 pesos; but if the value of the
thing stolen exceeds the latter amount, the penalty shall be the

Based on the foregoing, since the amount taken is P640,353.86,

maximum period of the one prescribed in this paragraph, and

then the imposable penalty shall be the maximum period

one year for each additional ten thousand pesos, but the total

of prision mayor in its minimum and medium periods, or eight

penalty which may be imposed shall not exceed twenty years.

(8) years, eight (8) months and one (1) day to ten (10) years,

In such cases, and in connection with the accessory penalties

adding one (1) year for each additional P10,000.00. Thus, from

which may be imposed and for the purpose of the other

P640,353.86, we deduct P22,000.00, giving us a balance of

provisions of this Code, the penalty shall be termed prision

P618,353.86 which we divide by P10,000.00. We now have sixty-

mayor or reclusion temporal, as the case may be.

one (61) years which we will add to the basic penalty of eight (8)
years, eight (8) months and one (1) day to ten (10) years.

xxxx

Art. 310. Qualified theft. The crime of theft shall be punished by

the penalties next higher by two degrees than those
respectively specified in the next preceding articles, if
committed by a domestic servant, or with grave abuse of
confidence, or if the property stolen is motor vehicle, mail

However, as stated in Article 309, the imposable penalty for

simple theft should not exceed a total of twenty (20) years.
Thus, if appellant had committed only simple theft, her penalty
would be twenty (20) years of reclusion temporal. Considering
however that in qualified theft, the penalty is two degrees
higher, then the appellate court properly imposed the penalty
of reclusion perpetua12.

Finally, we note that appellant has not yet been committed to

prison. In view thereof and based on our foregoing discussion,
appellant must be ordered arrested and committed to prison to
start serving her sentence.

ACCORDINGLY, the assailed May 26, 2011 Decision of the Court

of Appeals in CA-G.R. CR No. 31635 is AFFIRMED. The
Regional Trial Court of Makati City, Branch 132 is DIRECTED to
issue a warrant for the arrest of appellant and to order her
commitment at the Correctional Institution for Women, and to
submit to this Court a Report of such commitment, all within ten
(10) days from receipt of this Resolution. The Superintendent,
Correctional Institution for Women is DIRECTED to confirm to
this Court the confinement of appellant within ten (10) days
therefrom.

SO ORDERED.
SECOND DIVISION, G.R. No. 200308, February 23,
2015, PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. MERA JOY ELEUTERIO NIELLES, @ MERA NIELLES
DELOS REYES, ACCUSED-APPELLANT.