You are on page 1of 8

Republic of the Philippines

Department of Justice, Region V


National Prosecution Service
CITY PROSECUTION OFFICE
Sorsogon City, Sorsogon

SIMON DEYTO NPS docket No. V-06-INV-14K-0289


Complainant,
For: QUALIFIED THEFT
-Versus-

ARTURO ESICO &


LESLIE DEMDAM
Respondents
x----------------------------------------x

URGENT MOTION FOR RECONSIDERATION

COMES NOW the Complainant, through the undersigned counsel, unto


this Honorable Office, respectfully moves for the reconsideration of the
abovementioned resolution by averring the following:

TIMELINESS OF THE MOTION

1. On February 27, 2015, the Complainant received a Resolution


dated February 5, 2015 over the case which states, among others:

“WHEREFORE, premises considered undersigned


investigating prosecutor respectfully recommends the
dismissal of the above-entitled case in view of the
pendency of a civil case involving the same parties for the
same cause and for insufficiency of evidence.”

That before the issuance of the said Resolution by the


Honorable Office, the Complainant filed a comment regarding the
counter-affidavit filed by the Respondents. Obviously, such reply was
not considered in view of the issuance of the assailed resolution on
the same day that the Complainant was furnished a copy of the
counter-affidavit. Hence the Complainant has fifteen (15) days within
which to file a motion for reconsideration or an appeal.

That on March 30, 2015, the Honorable Office issued a


resolution denying the motion for reconsideration solely by reason of
lack of verification as required under the Revised Manual for
Prosecutors. The said resolution was received by the Complainant on
May ___, 2015.

That the complaints filed before the Honorable Office must be


resolved on merits rather than technicalities if substantial justice is to
be served.
GROUNDS
2. Herein Complainant moves for a reconsideration of the
above-mentioned Resolution based on the following grounds:
I.
THE HONORABLE OFFICE ERRED IN NOT FINDING THAT THE
ASSAILED ACTS OF THE RESPONDENTs CONSTITUTED THE CRIME OF
QUALIFIED THEFT.
II.
THE HONORABLE OFFICE ERRED WHEN IT DISMISSED
THE INSTANT CASE INVOLVING THE SAME PARTIES AND FOR THE
SAME CAUSE AND FOR INSUFFICIENCY OF EVIDENCE.

III.
THE HONORABLE OFFICE DENIED THE COMPLAINANT OF
DUE PROCESS WHEN IT ISSUED A RESOLUTION ON THE SAME DAY
THAT IT FURNISHED COMPLAINANT A COPY OF THE COUNTER
AFFIDAVIT OF THE RESPONDENTS.

IV.
THE HONORABLE OFFICE GRAVELY ERRED WHEN IT
DEALTWITH EVIDENTIARY MATTERS IN RESOLVING THE COMPLAINT.

V.
THE HONORABLE OFFICE ERRED WHEN IT DENIED THE
MOTION FOR RECONSIDERATION BASED ON TECHNICALITIES.

ARGUMENTS/ DISCUSSIONS
I.

Anent the first issue, the respondents should be indicted for


qualified theft in view of the presence of all of the elements of the
felony. The elements of the crime of theft as provided for in Article 308
of the Revised Penal Code are as follows: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force
upon things.People v. Sison, G.R. No. 123183, January 19, 2000, 322 SCRA
345, 363-364.Theft becomes qualified when any of the following
circumstances under Article 310 (1) the theft is committed by a domestic
servant; (2) the theft is committed with grave abuse of confidence; (3) the
property stolen is either a motor vehicle, mail matter or large cattle; (4)
the property stolen consists of coconuts taken from the premises of a
plantation; (5) the property stolen is fish taken from a fishpond or
fishery; and (6) the property was taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance. People v. Sison, supra note 10 at 364.

There is no cavil that all these elements are present in the instant case: 1.
There was taking of personal property, the lumbers; 2. The lumbers taken
by the herein respondents belonged to CONSOLACION DEYTO; 3. It was
taken with intent to gain considering the fact that it was piled and
transported to another place using a vehicle; 4. The taking was done
without the consent of the legitimate owner; 5. The taking was done
without the use of violence against or intimidation of persons or force
upon things.

The claim given by the respondents through judicial affidavits constitute


negative testimonies which cannot prevail over positive testimonies of
the three (3) witnesses who actually saw them in the act of taking the
lumbers without the consent and presence of the legitimate owner. The
ruling by the High Court is instructive:

In the absence of corroborative evidence, the Court would not be


prepared to accept the usual lame defense of denial over the
straightforward and positive declaration of a witness since denials
constitute self-serving negative evidence which cannot be accorded
greater evidentiary weight than the declaration of credible witnesses
who testify on affirmative matters. Thus, in the case of contradictory
declarations and statements, greater weight is generally given to
positive testimonies than to mere denials. People v. Antonio, G.R. No.
107950, 17 June 1994, 233 SCRA 283, 299; Vda de Ramos v. Court of
Appeals, 171 Phil. 354, 364 (1978).

II.

As regards the second issue, the Honorable Office misconstrued the pendency
of the civil case for unlawful detainer vis-à-vis the instant case as ground for
dismissal. There is no cavil that it hinges its findings on the issue of the so-called
prejudicial question. The term “prejudicial question” is found in Section 6, Rule
111 of the 2000 Revised Rules of Criminal Procedure, which states that:
“A petition for suspension of the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in the office of the prosecutor
or the court conducting the preliminary investigation. When the criminal action
has been filed in court for trial, the petition to suspend shall be filed in the
same criminal action at any time before the prosecution rests.”

As can be gleaned from above, a petition for suspension of the criminal action
based on the existence of prejudicial question may be raised either during the
preliminary investigation stage before the prosecutor conducting the same or
during the pendency of a criminal trial where it is filed before the court hearing
the case.

Jurisprudence has also defined a prejudicial question as that which arises in a


case the resolution of which is a logical antecedent of the issue involved
therein, and the cognizance of which pertains to another tribunal. The
prejudicial question must be determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged in another court or
tribunal. It is a question based on a fact distinct and separate from the crime
but so intimately connected with it that it determines the guilt or innocence of
the accused. (See Rojas vs. People, 57 SCRA 246; People vs. Aragon, 94 Phil.
357; Zapanta vs. Montessa, 4 SCRA 510 and Benitez vs. Concepcion, 2 SCRA 178)

The elements of a prejudicial questions are enumerated under Section 7, Rule


111 of the 2000 Revised Rules of Criminal Procedure, these are: (a) the
previously instituted civil action involves an issue similar or intimately related to
the issue raised in the subsequent criminal action, and (b) the resolution of
such issue determines whether or not the criminal action may proceed.
If both civil and criminal cases have similar issues or the issue in one is
intimately related to the issues raised in the other, then a prejudicial question
would likely exist, provided the other element or characteristic is satisfied. For
example, in a criminal case for bigamy, the accused may raise the pendency of
a civil suit for the declaration of nullity of his first marriage to defer the
proceedings of the bigamy case.

Mere similarity of issues does not suffice to uphold the validity of a prejudical
question. It must appear not only that the civil case involves the same facts
upon which the criminal prosecution would be based, but also that the
resolution of the issues raised in the civil action would be necessarily
determinative of the guilt or innocence of the accused. If the resolution of the
issue in the civil action will not determine the criminal responsibility of the
accused in the criminal action based on the same facts, or there is no necessity
_that the civil case be determined first before taking up the criminal case,_
therefore, the civil case does not involve a prejudicial question. Neither is there
a prejudicial question if the civil and the criminal action can, according to law,
proceed independently of each other.
It must be remembered however, that a prejudicial question does not
conclusively resolve the guilt or innocence of the accused but simply tests the
sufficiency of the allegations in the information in order to sustain the further
prosecution of the criminal case. A party who raises a prejudicial question is
deemed to have hypothetically admitted that all the essential elements of a
crime have been adequately alleged in the information, considering that the
prosecution has not yet presented single evidence on the indictment or may
not yet have rested its case. A challenge of the allegations in the information
on the ground of prejudicial question is in effect a question on the merits of the
criminal charge through a non-criminal suit.

Certainly, the pendency of unlawful detainer case does not affect the
institution of a criminal case for qualified theft. This is so because the issue
involved in unlawful detainer is who has better right to possess between the
parties. On the other hand, qualified theft is a criminal offense for taking
personal property without the consent of the owner under qualifying
circumstances. The rulings of the High Tribunal are instructive:

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

The assailed decision of the CA acquitting the respondent without giving the
Solicitor General the chance to file his comment on the petition for review
clearly deprived the State of its right to refute the material allegations of the
said petition filed before the CA. (People vs. Duca, G.R. No. 171175, October 30,
2009)The said decision is, therefore, a nullity. In Dimatulac v. Villon, G.R. No.
127107, October 12, 1998, 297 SCRA 679, we held:

Indeed, for justice to prevail the scales must balance; justice


is not to be dispensed for the accused alone. The interests of
society and the offended parties which have been wronged must
be equally considered. Verily, a verdict of conviction is not
necessarily a denial of justice; and an acquittal is not necessarily a
triumph of justice; for, to the society offended and the party
wronged, it could also mean injustice. Justice then must be
rendered even-handedly to both the accused, on one hand, and
the State and offended party, on the other,Id. at 714.

It must be noted that the Complainant has filed a reply to refute the
inky and unsubstantial matters raised by the respondents before the
receipt of the Resolution from the Honorable Office. By clear
disregard of the right of the complainant to due process, the
controversial Resolution must be assailed as wholly infirm. “It must
be remembered that bare allegations unsubstantiated by evidence,
are not equivalent to proof.”( Domingo vs. Robles, 453 SCRA 812,
March 18, 2005) (underscoring ours)

“Basic is the rule that mere allegation is not evidence and is not
equivalent to proof”. Charges based on suspicion and speculation
likewise cannot be given credence. A complainant cannot rely on
mere conjectures and suppositions (Sasing vs. Gelbolingo, A.M. No. P-
12-3032, February 20, 2013).

“Evidence to be believable must not only proceed from the mouth of


a credible witness, but must be credible in itself such as the common
experience and observation of mankind can approve as probable
under the circumstances” (People vs. Calumpang, 454 SCRA 719
[2005].
IV.

The Honorable office gravely erred when it dealt with evidentiary


matters in resolving the complaint. It went beyond its duties when it
considered trivial matters which are evidentiary in nature. The rulings
of the High Court are instructive:
In the conduct of preliminary investigation, the prosecutor does not
decide whether there is evidence beyond reasonable doubt of the
guilt of the respondent. A prosecutor merely determines the
existence of probable cause, and to file the corresponding
information if he finds it to be so (De Chavez vs. Ombudsman, G.R.
Nos. 168830-31, February 6, 2007). Probable cause implies probability
of guilt and requires more than bare suspicion but less than evidence
to justify a conviction (Manebo vs. Acosta, G.R. no. 169554, October
28, 2009), (Underscoring ours).

The purpose of preliminary investigation is to determine whether a) a


crime has been committed; and (b) there is probable cause to believe
that the accused is guilty thereof (Manebo vs. Acosta, G.R. no.
169554, October 28, 2009).

However the ultimate purpose of preliminary investigation ‘is to


secure the innocent against hasty, malicious and oppressive
prosecution and to protect him from open and public accusation of a
crime, from the trouble, expenses and useless and expensive
prosecutions” (Sales vs. Sandiganbayan, G.R. No. 143802, November
16, 2001).

Attached and referred to herewith are the following documents:

a. Special Power of Attorney issued in its favor by the children of


Consolacion Deyto.

b. Confirmation of Absolute Sale


c. Other documents attached in Reply

Wherefore, premises considered, we beseech the Honorable Prosecutor to


reconsider the above stated Resolution.

Other reliefs which are just and equitable are also prayed for.

City of Sorsogon, May 12, 2015.

ATTY. JOEL E. FULGUERAS


Counsel for the Complainant
Kasanggayahan Village, Capitol Compound,
Sorsogon City
C.P. No. 09088119664
PTR No.14526
31 /1/8/2016 / SORSOGON CITY
IBP NO. 928303/1/6/2015 / Sorsogon
ROLL NO. 63054
Admitted to the BAR: May 7, 2014
MCLE Compliance No. V-0006083

VERIFICATION AND CERTIFICATION

REPUBLIC OF THE PHILIPPINES)


Province of Sorsogon ) S.S.
City of Sorsogon )

I, SIMON DEYTO, of legal age and presently residing at Barangay San


Isidro, Bacon, Sorsogon City, Philippines, after having been duly sworn to in
accordance with law, hereby depose and say: That I am the Complainant in the
above-entitled case; That I have caused the preparation of the Motion for
Reconsideration and I have read the same and know the contents thereof; That
the allegations contained therein are true and correct of my own personal
knowledge.

That I further certify that: (a)I have not theretofore commenced any
other action or proceeding or filed any claim involving the same issues or
matter in any court tribunal or quasi-judicial agency and, to the best of my
knowledge, no such action or proceeding is pending herein; (b) If I should
therefore learn that the same or similar action or proceeding has filed or
pending the supreme court , the Court of Appeals, or any other tribunal or
quasi-judicial agency, I undertake to report such fact within five (5) days there
from to the court or agency wherein the original pleading and sworn
certification contemplated herein have been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this


_______________, at Sorsogon City, Philippines.

SIMON DEYTO
Affiant

SUBSCRIBED AND SWORN to before me this___________________, at


Sorsogon City, Philippines.

Doc. No. ______;


Page No. ______;
Book No.______;
Series of 2015

Cc:
ATTY. FERDINAND LAGUNA
Counsel for the Respondents
San Juan Roro, Sorsogon City