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G.R. No.

L-32126 July 6, 1978 away from the latter's house; as she approached them,
she heard one of them say "Could he elude a bullet"; and
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, when accused Teresa Domogma noticed the presence of
vs. her daughter, she shoved her away saying "You tell your
NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO father that we will kill him".
appellants. Shortly after the sun had set on the following day, a
Saturday, June 24, 1967, while the same 12-year old
PER CURIAM: daughter of Bernardo was cooking food for supper in the
Appeal from the conviction for the crime of murder and kitchen of their house, she saw her mother go down the
the sentence of life imprisonment, with indemnity to the house through the stairs and go to the yard where she
offended party, the heirs of the deceased Bernardo again met with the other appellants. As they were barely
Bagabag, in the amount of P12,000, rendered by the Court 3-4 meters from the place where the child was in the
of First Instance of Abra in its Criminal Case No. 686, of all "batalan", she heard them conversing in subdued tones,
although she could not discern what they were saying. She
the accused the namely, Nemesio Talingdan, Magellan
was able to recognize all of them through the light coming
Tobias, Augusta Berras, Pedro Bides and Teresa Domogma,
from the lamp in the kitchen through the open "batalan"
the last being the supposed wife of the deceased, who,
because no certificate nor any other proof of their and she knows them well for they are all residents of
Sobosob and she used to see them almost everytime. She
marriage could be presented by the prosecution, could not
noted that the appellants had long guns at the time. Their
be charged with parricide.
meeting did not last long, after about two (2) minutes
Prior to the violent death of Bernardo Bagabag on the Teresa came up the house and proceeded to her room,
night of June 24, 1967, he and appellant Teresa Domogma while the other appellants went under an avocado tree
and their children, arrived together in their house at nearby. As supper was then ready, the child caged her
Sobosob, Salapadan, Abra, some 100 meters distant from parents to eat, Bernardo who was in the room adjoining
the municipal building of the place. For sometime, the kitchen did not heed his daughter's call to supper but
however, their relationship had been strained and beset continued working on a plow, while Teresa also excused
with troubles, for Teresa had deserted their family home a herself by saying she would first put her small baby to
couple of times and each time Bernardo took time out to sleep. So Corazon ate supper alone, and as soon as she
look for her. On two (2) different occasions, appellant was through she again called her parents to eat. This time,
Nemesis Talingdan had visited Teresa in their house while she informed her father about the presence of persons
Bernardo was out at work, and during those visits Teresa downstairs, but Bernardo paid no heed to what she said.
had made Corazon, their then 12-year old daughter living He proceeded to the kitchen and sat himself on the floor
with them, go down the house and leave them. Somehow, near the door. Corazon stayed nearby watching him. At
Bernardo had gotten wind that illicit relationship was that moment, he was suddenly fired upon from below the
going on between Talingdan and Teresa, and during a stairs of the "batalan". The four accused then climbed the
quarrel between him and Teresa, he directly charged the stairs of the "batalan" carrying their long guns and seeing
latter that should she get pregnant, the child would not be that Bernardo was still alive, Talingdan and Tobias fired at
his. About a month or so before Bernardo was killed, him again. Bides and Berras did not fire their guns at that
Teresa had again left their house and did not come back precise time, but when Corazon tried to call for help Bides
for a period of more than three (3) weeks, and Bernardo warned her, saying "You call for help and I will kill you", so
came to know later that she and Talingdan were seen she kept silent. The assailants then fled from the scene,
together in the town of Tayum Abra during that time; then going towards the east.
on Thursday night, just two (2) days before he was gunned
down, Bernardo and Teresa had a violent quarrel; The first to come to the aid of the family was Corazon's
Bernardo slapped Teresa several times; the latter went male teacher who lived nearby. Teresa came out of her
down the house and sought the help of the police, and "silid" later; she pulled Corazon aside and questioned her,
shortly thereafter, accused Talingdan came to the vicinity and when Corazon informed her that she recognized the
of Bernardo's house and called him to come down; but killers of her father to be her co-appellants herein, she
Bernardo ignored him, for accused Talingdan was a warned her not to reveal the matter to anyone,
policeman at the time and was armed, so the latter left the threatening to kill her if she ever did so. Still later on, other
place, but not without warning Bernardo that someday he persons arrived and helped fix and dress the lifeless body
of the victim, Bernardo, autopsy on which was performed
would kin him. Between 10:00 and 11:00 o'clock the
following Friday morning, Bernardo's daughter, Corazon, in his own house by the Municipal Health Officer of the
who was then in a creek to wash clothes saw her mother, place on June 26, 1967, about 36 hours after death; burial
Teresa, meeting with Talingdan and their co-appellants took place on the same day. The victim's brother who
Magellan Tobias, Augusto Berras and Pedro Bides in a came from Manila arrived one day after the burial
small hut owned by Bernardo, some 300 to 400 meters followed by their mother who came from La Paz, Abra
where she resides. Corazon, who had not earlier revealed Early in the evening of June 24, 1967, Teresa was in the
the Identities of the killers of her father because she was kitchen of their house cooking their food for supper. Two
afraid of her own mother, was somehow able to reveal the of the children, Corazon and Judit, were with her. Her
circumstances surrounding his killing to these immediate husband, Bernardo, was then in the adjoining room
relatives of hers, and the sworn statement she thereafter making a plow. He had to make the plow at that time of
executed on August 5, 1967 (Exh. B) finally led to the filing the night because at daytime he worked as a carpenter in
of the information for murder against the herein five (5) the convent. As soon as the food was ready, she and the
appellants. children moved over to the adjoining room where
Bernardo was to call him for supper, and he then
On the other hand, according to the evidence for the proceeded to the kitchen to eat. Teresa and the two
defense: Teresa prior to her marriage with Bernardo, was a children were about to follow him to the kitchen when
resident of the town of Manabo, Abra. She has a sister in suddenly they heard more than five (5) or six (6) successive
Manila and two (2) brothers in America who love her gun shots coming from near their "batalan". They were all
dearly, that is why said brothers of hers had been so terrified that they immediately cried for help, albeit she
continuously and regularly sending her monthly $100.00 in did not know yet at that precise time that her husband
checks, starting from the time she was still single up to the was shot, as she and the children were still in the other
time of her husband's violent death on June 24, 1967, and room on their way to the kitchen, about three (3) meters
thereafter. After their marriage, they moved to and away from Bernardo. But soon Teresa heard her husband
resided in her husband's place in Sallapadan, Abra, crying in pain, and as soon as she reached him, she took
bringing with them three (3) carabaos and two (2) horses, Bernardo into her arms. She did not see the killers of her
which Bernardo and she used in tilling a parcel of land in husband, as the night was then very dark and it was
said place, separate and distinct from the parcel of land raining. Bernardo was in her arms when the first group of
worked on by Bernardo's parents and their other children. people who responded to their cry for help arrived. Among
She and Bernardo lived in their own house which was them were the chief of police, some members of the
about 4-5 meters away from the house of her parents-in- municipal council and appellant Tobias who even advised
law. She loved Bernardo dearly, they never quarreled, and Teresa not to carry the lifeless body of Bernardo to avoid
her husband never maltreated her; although sometimes abortion as she was then six (6) months pregnant. The
she had to talk to Bernardo when he quarrels with his own chief of police then conducted an investigation of the
mother who wanted that Bernardo's earnings be given to surroundings and he found some empty shells and foot
her, (the mother) which Bernardo never did, and at those prints on the ground some meters away from the
times, Bernardo would admonish Teresa "You leave me "batalan". He also found some bullet holes on the
alone". Her in-laws also hated her because her mother-in- southern walls of said "batalan" and on the nothern
law could not get the earnings of Bernardo for the support wallings of the kitchen. Later, Teresa requested some
of her other son, Juanito, in his schooling. On his part, persons to relay the information about the death of her
Juanito also disliked her because she did not give him any husband to her relatives in Manabo, Abra, and they in turn
of the carpentry tools which her brothers in America were passed on the news to Bernardo's mother and her family
sending over to her. She never left their conjugal home for in La Paz, Abra, where they were then residing, as they
any long period of time as charged by her mother-in-law, have left their house in Sallapadan about two (2) months
and if she ever did leave the house to go to other places previous after they lost the land they used to till there in a
they were only during those times when she had to go to case with the natives called Tingians. Two (2) PC soldiers
Bangued to cash her dollar checks with the PNB branch arrived in the afternoon of June 26, 1967, and after
there, and even on said trips, she was sometimes Bernardo's remains was autopsied and he was buried
accompanied by Bernardo, or if she had to go alone and under their house, they conducted an investigation, but
leaves Sallapadan in the morning, she rode in a weapons she did not give them any information relative to the
carrier along with merchants going to Bangued in the Identity of the persons who shot her husband because she
morning and always rode back with them to Sallapadan in did not really see them. Her mother-in-law and a brother-
the afternoon of the same day because the weapons in-law, Juanita Bagabag, arrived later, the former from the
carrier is owned by a resident of Sallapadan who waits for town of La Paz, Abra, and the latter from Manila, and after
them. Teresa came to know Talingdan only when the latter the usual nine (9) days mourning was over, they left
became a policeman in Sallapadan, as whenever any of the Sallapadan, taking Teresa's children under their custody.
carabaos and horses they brought from Manabo to Teresa suspects that since her mother-in-law and her
Sallapadan got lost, she and Bernardo would go and report brother-in-law have axes to grind against her and they
the matter to the Mayor who would then refer the matter have her daughter, Corazon, under their custody, they had
to his policemen, one of whom is Talingdan, so that they forced the said child to testify against her. She further
may help locate the lost animals; Teresa knew Talingdan declared that her late husband, Bernardo, had enemies
well because they are neighbors, the latter's home being during his lifetime, as he had quarrels with some people
only about 250-300 meters away from theirs. But illicit over the land they work on.
relationship had never existed between them.
Furthermore, the defense presented evidence to the effect and appellant Talingdan, as already related earlier above.
that: Talingdan was not in Sallapadan at the time of the So also her testimony that in the morning following the
killing of Bernardo on June 24, 1967; being a policeman of quarrel between her father and her mother and the threat
the place at the time, he was one of the two (2) policemen made by Talingdan to the former, between 10:00 and
who escorted and acted as bodyguard of the Mayor, when 11:00 o'clock, she saw all the herein four male accused-
the latter attended the cursillo in Bangued, all of them appellants meeting with her mother in a small hut some
leaving Sallapadan on June 22 and returning thereto four 300 or 400 meters away from their house, near where she
(4) days later on June 26, hence, he could not have was then washing clothes, and that on said occasion she
anything to do with the said killing. On the other hand, overheard one of them ask "Could (sic) he elude a bullet?",
Tobias claimed to be in the house of one Mrs. Bayongan in We have our doubts, however, as to whether or not her
Sallapadan on the date of said killing, but he was one of mother did say to her in shoving her away upon seeing her
the persons who was called upon by the chief of police of approach, "You tell your father we will kill him." If it were
the place to accompany him in answer to the call for help true that there was really such a message, it is to be
of the wife of the victim. The other two appellants Bides wondered why she never relayed the same to her father,
and Berras also alleged that they were in the same house specially when she again saw the said appellants on the
of Mrs. Bayongan on that date; they are tillers of the land very night in question shortly before the shooting talking
of said Mrs. Bayongan and had been staying in her house together in subdued tones with her mother and holding
for a long time. They were sleeping when the chief of long arms. Moreover, it is quite unnatural that such a
police came that evening and asked Tobias, who was then warning could have been done in such a manner.
municipal secretary, to accompany him to the place of the
shooting. They did not join them, but continued sleeping. Accordingly, it is Our conclusion from the evidence related
They never left the said house of Mrs. Bayongan, which is above and which We have carefully reviewed that
about 250-300 meters away from the place of the killing, appellants Nemesio Talingdan, Magellan Tobias, Augusto
that evening of June 24, 1967. Berras and Pedro Bides are guilty of murder qualified by
treachery, as charged, and that they committed the said
After carefully weighing the foregoing conflicting evidence offense in conspiracy with each other, with evident
of the prosecution and defense, We have no doubt in Our premeditation and in the dwelling of the offended party. In
mind that in that fatal evening of June 24, 1967, appellants other words, two aggravating circumstances attended the
Nemesio Talingdan, Magellan Tobias, Augusto Berras and commission of the offense, namely, evident premeditation
Pedro Bides, all armed with long firearms and acting and that it was committed in the dwelling of the victim. No
inconspiracy with each other gunned down Bernardo as mitigating circumstance has been proven.
the latter was sitting by the supper table in their house at
Sobosob, Sallapadan, Abra. They were actually seen Appellants insist in their brief that the lone testimony of
committing the offense by the witness Corazon. She was Corazon suffered from vital contradictions and
the one who prepared the food and was watching her inconsistencies and badges of falsehood because of
father nearby. They were all known to her, for they were patently unnatural circumstances alleged by her. We do
all residents of Sobosob and she used to see them often not agree. As the Solicitor General has well pointed out,
before that night. Although only Talingdan and Tobias the fact that the witness varied on cross-examination the
continued firing at her father after they had climbed the exact time of some of the occurrences she witnessed, such
stairs of the "batalan", it was Bides who threatened her as, (1) whether it was before or after Bernardo had began
that he would kill her if she called for help. Berras did not eating when he was shot; (2) whether it was before or
fire any shot then. But even before the four appellants after seeing her mother's meeting with her co-accused in
went up the "batalan", they already fired shots from the morning of Friday, June 23, 1967, that she went to
downstairs. wash clothes; and (3) whether or not the accused were
already upstairs or still downstairs when they first fired
We also fully believe Corazon's testimony that two nights their guns, cannot alter the veracity of her having seen
before, or on Thursday, June 22, 1967, the deceased appellants in the act of mercilessly and cold-bloodedly
Bernardo and appellant Teresa had a violent quarrel shooting her father to death.
during which he slapped her several times. She went to
seek the help of the police, and it was appellant Talingdan, Contrary to the contention of appellants, there was
a policeman of their town, who went to the vicinity of their nothing inherently unnatural in the circumstances related
house and challenged her father to come down, but the by her. We agree with the following rebuttal of the
latter refused because the former was a policeman and Solicitor General:
was armed. And so, Talingdan left after shouting to her Appellants also attempt to buttress their attack against the
father that "If I will find you someday, I will kill you." credibility of Corazon Bagabag by pointing out five
We likewise accept as truthful, Corazon's declaration supposed unnatural declarations in her testimony; First,
regarding the amorous relationship between her mother she said that her father, appeared unconcerned when she
informed him of the presence of people downstairs. But as
correctly observed by the prosecuting fiscal the witness constitute a vicious poison enough to make the child, right
does not know then "the mentality of her father" (p. 62, or wrong, a willing instrument in any scheme to get even
t.s.n., hearing of March 29, 1968). Second, Corazon also with her wicked mother. We feel Corazon was too young
declared that the accused conversed that Saturday night to he affected by the infidelity of her mother in the
preceding the day the crime charged was committed in a manner the defense suggests. We are convinced from a
lighted place although there was a place which was reading of her whole testimony that it could not have been
unlighted in the same premises. But this only proves that a fabrication. On the whole, it is too consistent for a child
the accused were too engrossed in their conversation, of thirteen years to be able to substantially maintain
unmindful of whether the place where they were talking throughout her stay on the witness stand without any fatal
was lighted or not, and unmindful even of the risk of flaw, in the face of severe and long cross-interrogations, if
recognition. Third, witness declared that Pedro Bides and she had not actually witnessed the event she had
Augusto Berras did not fire their guns. Even if these described. We reject the possibility of her having been
accused did withhold their fire, however, since they were "brainwashed or coached" to testify as she did.
privies to the same criminal design, would this alter their
culpability? Should the witness Corazon Bagabag be The second to the sixth assignments of error in the appeal
discredited for merely stating an observation on her part brief do not merit serious consideration. Anent these
which is not inherently unnatural? Fourth, Corazon also alleged errors, suffice it to say that the following
declared that only three bullets from the guns of the four refutations of the Solicitor General are well taken:
male accused found their mark on the body of her father. Appellants also decry that the trial court allegedly failed to
But would this not merely prove that not all the accused
consider the testimony of Dr. Dalisan that the distance
were good shots? And fifth, the witness declared that her between the assailants and the deceased could have been
father was still able to talk after he was shot yet Dr. Jose
4 to 5 meters when the shots were fired. But the
Dalisan declared that his death was instantaneous It is appellants overlook the testimony of Corazon Bagabag
respectfully submitted, however, that the doctor's opinion
that when the first shot was fired, the gunman was about
could yield to the positive testimony of Corazon Bagabag 3-½ meters from her father (p. 60, t.s.n., hearing of March
in this regard without in the least affecting the findings of
29, 1968), which disproves the theory of the defense that
said doctor as regards the cause of the death of the the killers fired from a stonepile under an avocado tree
deceased. As thus viewed, there are no evident badges of some 4 to 5 meters away from the deceased's house.
falsehood in the whole breadth and length of Corazon
Appellants also insist that the Court a quo ignored the
Bagabag's testimony. (Pp. 9-10, People's Brief.) testimonies of defense witness Cpl. Bonifacio Hall and
Why and how Corazon could have concocted her version Chief of Police Rafael Berras on their having found bullet
of the killing of her father, if it were not basically true, is marks on the southern walling of the house of the
hardly conceivable, considering she was hardly thirteen deceased, as well as empty cal. 30 carbine shells under the
(13) years old when she testified, an age when according aforementioned avocado tree. The trial court, however,
to Moore, a child , is, as a rule, but little influenced by the made the following apt observations on the testimony of
suggestion of others" because "he has already got some defense witness Cpl. Bonifacio Hall:
principles, lying is distasteful to him, because he thinks it is This witness stated that we went to the house of the
mean, he is no stranger to the sentiment of self- respect, deceased to investigate the crime after the deceased had
and he never loses an opportunity of being right in what already been buried; that he investigated the widow as
he affirms." (II Moore on Facts, pp. 1055-1056.) No cogent well as the surroundings of the house where the deceased
explanation has been offered why she would attribute the was shot. He found empty shells of carbine under the
assault on her father to three other men, aside from avocado tree. He stated that the 'batalan' of the house of
Talingdan whom she knew had relations with her mother, the deceased has a siding of about 1-½ meters high and
were she merely making-up her account of how he was that he saw bullet holes on the top portion of the wall
shot, no motive for her to do so having been shown. directly pointing to the open door of the 'batalan' of the
Demolishing the theory of the accused that such testimony house of the deceased. When the court asked the witness
was taught to her by her uncle, His Honor pointed out that what could have been the position of the assailant in
said "testimony, both direct and cross, would show that shooting the deceased, he stated that the assailant might
she was constant, firm and steady in her answers to have been standing. The assailant could not have made a
questions directed to her." We have Ourselves read said bullet hole on the top portion of the sidings of the
testimony and We are convinced of the sincerity and 'batalan' because the 'batalan' is only 1-½ meters high, and
truthfulness of the witness. We cannot, therefore, share further, when asked as to the level of the ground in
appellants' apprehension in their Seventh Assignment of relation to the top sidings of the 'batalan,' he answered
Error that the grave imputation of a mother's infidelity and that it is in the same level with the ground. If this is true, it
her suggested participation in the killing of her husband, is impossible for the assailant to make a bullet hole at the
would if consistently impressed in the mind of their child, top portion sidings of the 'batalan,' hence, the testimony
of this witness who is a PC corporal is of no consequence went to accompany the mayor to the cursillo house near
and without merit. The court is puzzled to find a PC the Bangued Cathedral and after conducting the mayor to
corporal testifying for the defense in this case, which case the cursillo house, he went to board in the house of the
was filed by another PC sergeant belonging to the same cousin of Mayor Banawa near the Filoil Station at Bangued,
unit and assigned in the same province of Abra (pp. 324- Abra. From that time, he never saw the mayor until after
325, rec.). they went home to Sallapadan on June 26th.

As regards the empty shells also found in the vicinity of the This kind of alibi could not gain much weight because he
shooting, suffice it to state that no testimony has been could have returned anytime on the evening of June 22 or
presented, expert or otherwise, linking said shells to the anytime before the commission of the offense to
bullets that were fired during the shooting incident. Sallapadan and commit the crime on the 24th at sunset,
Surmises in this respect surely would not overcome the then returned to Bangued, Abra to fetch the mayor and
positive testimony of Corazon Bagabag that the accused bring him back to Sallapadan on the 26th.
shot her father as they came up the 'batalan' of their
house. (Pp. 11-12, People's Brief.) The irony of this defense of alibi is that the mayor who was
alleged to have been accompanied by witness-accused is
At the trial, the four male appellants tried to prove that still living and very much alive. As a matter of fact, Mayor
they were not at the scene of the crime when it happened. Gregorio Banawa is still the mayor of Sallapadan, Abra,
This defense of alibi was duly considered by the trial court, and also policeman Cresencio Martinez, another
but it was properly brushed aside as untenable. In their policeman who accompanied the mayor to Bangued, is
brief, no mention thereof is made, which goes to show also still living and still a policeman of Sallapadan. Why
that in the mind of the defense itself,. it cannot be were not the mayor and the policeman presented to
successfully maintained and they do not, therefore, insist corroborate or deny the testimony of Nemesio Talingdan?
on it. Nonetheless, it would do well for this Court to
specifically affirm the apt pertinent ratiocination of His Conrado B. Venus, Municipal Judge of Penarrubia Abra,
Honor in reference thereto thus: and a member of the Cursillo Movement, was presented
as rebuttal witness for the prosecution. On the witness
This defense, therefore, is alibi which, in the opinion of the stand, he stated that he belongs to Cursillo No. 3 of the
court, can not stand firmly in the face of a positive and Parish of Bangued, Abra, and said cursillo was held on
unwavering testimony of the prosecution witness who October 20 to 23, 1966, at the St. Joseph Seminary in
pointed out to the accused as the authors of the crime. Galicia, Pidigan Abra, and not on June 23 to 26, 1967. As a
This is so because, first, according to the three accused — matter of fact, Mayor Banawa of Sallapadan also attended
Bides, Tobias and Berras — they were sleeping at 8:00 the cursillo held on October 20 to 23, 1966, as could be
o'clock that night in the house of Mrs. Bayongan which is seen in his 'Guide Book' where the signature of Gregorio
only 250 meters away from the scene of the crime. Banawa appears because they both attended Cursillo No. 3
Granting, for the sake of argument, but without admitting, of the Parish of Bangued.
that they were already sleeping at 8:00 o'clock in the
house of Mrs. Bayongan, Corazon Bagabag clearly stated (To) this testimony of the rebuttal witness belies partly, if
that her father was gunned down at sunset which is not in full, the testimony of accused Nemesio Talingdan.
approximately between 6:00 and 6:30 in the evening, (Pp. 29A-30A, Annex of Appellants' Brief.)
hence, the accused Tobias, Berras and Bides could have Coming now to the particular case of appellant Teresa
committed the crime and went home to sleep in the house Domogma, as to whom the Solicitor General has submitted
of Mrs. Bayongan after the commission of the crime.
a recommendation of acquittal, We find that she is not as
According to Pedro Bides, the house of Mrs. Bayongan is wholly innocent in law as she appears to the Counsel of
only 250 meters away from the house of the victim.
the People. It is contended that there is no evidence
Second, the three accused have failed miserably to present
proving that she actually joined in the conspiracy to kill her
the testimony of Mrs. Bayongan, the owner of the house
husband because there is no showing of 'actual
where they slept that night to corroborate or bolster their cooperation" on her part with her co-appellants in their
defense of alibi. (Pp. 27A-28A, Annex of Appellants' Brief.) culpable acts that led to his death. If at all, what is
xxx xxx xxx apparent, it is claimed, is "mere cognizance, acquiescence
or approval" thereof on her part, which it is argued is less
Nemesio Talingdan, alias Oming, the last of the accused, than what is required for her conviction as a conspirator
also in his defense of alibi, stated that on June 22, 1967, he per People vs. Mahlon, 99 Phil. 1068. We do not see it
accompanied Mayor Gregorio Banawa of Sallapadan to exactly that way.
Bangued, together with policeman Cresencio Martinez for
the purpose of attending a cursillo in Bangued They True it is that the proof of her direct participation in the
started in Sallapadan in the early morning of June 22, 1967 conspiracy is not beyond reasonable doubt, for which
and arrived in Bangued the same day. According to him, he reason, sue cannot have the same liability as her co-
appellants. Indeed, she had no hand at all in the actual they committed the offense in the dwelling of the
shooting of her husband. Neither is it clear that she helped offended party.
directly in the planning and preparation thereof, albeit We
are convinced that she knew it was going to be done and In these premises, the crime committed by the male
did not object. (U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is appellants being murder, qualified by treachery, and
not definitely shown that she masterminded it either by attended by the generic aggravating circumstances of
herself alone or together with her co-appellant Talingdan. evident premeditation and that the offense was
At best, such conclusion could be plain surmise, suspicion committed in the dwelling of the offended party, the Court
and conjecture, not really includible. After all, she had has no alternative under the law but to impose upon them
been having her own unworthy ways with him for quite a the capital penalty. However, as to appellant Teresa, she is
long time, seemingly without any need of his complete hereby found guilty only as an accessory to the same
elimination. Why go to so much trouble for something she murder.
was already enjoying, and not even very surreptitiously? In WHEREFORE, with the above finding of guilt beyond
fact, the only remark Bernardo had occasion to make to
reasonable doubt of the appellants Nemesio Talingdan,
Teresa one time was "If you become pregnant, the one in Magellan Tobias, Augusto Berras and Pedro Bides of the
your womb is not my child." The worst he did to her for all
crime of murder with two aggravating circumstances,
her faults was just to slap her. without any mitigating circumstance to offset them, they
But this is not saying that she is entirely free from criminal are each hereby sentenced to DEATH to be executed in
liability. There is in the record morally convincing proof accordance with law. Guilty beyond reasonable doubt as
that she is at the very least an accessory to the offense accessory to the same murder, appellant Teresa Domogma
committed by her co-accused. She was inside the room is hereby sentenced to suffer the indeterminate penalty of
when her husband was shot. As she came out after the five (5) years of prision correccional as minimum to eight
shooting, she inquired from Corazon if she was able to (8) years of prision mayor as maximum, with the accessory
recognize the assailants of her father. When Corazon penalties of the law. In all other respects, the judgment of
Identified appellants Talingdan, Tobias, Berras and Bides as the trial court is affirmed, with costs against appellants.
the culprits, Teresa did not only enjoin her daughter not to Barredo, Muñoz Palma, Aquino, Concepcion, Jr., Santos,
reveal what she knew to anyone, she went to the extent of
Fernandez and Guerrero, JJ., concur.
warning her, "Don't tell it to anyone. I will kill you if you
tell this to somebody." Later, when the peace officers who Antonio, Fernando, JJ., took no part.
repaired to their house to investigate what happened,
instead of helping them with the information given to her Separate Opinions
by Corazon, she claimed she had no suspects in mind. In
MAKASIAR, J., dissenting:
other words, whereas, before the actual shooting of her
husband, she was more or less passive in her attitude I dissent insofar as the liability of the accused Teresa
regarding her co-appellants' conspiracy, known to her, to Domogma who should be convicted, not merely as an
do away with him, after Bernardo was killed, she became accessory, but of parricide as principal and meted the
active in her cooperation with them. These subsequent death penalty, is concerned. A marriage certificate is not
acts of her constitute "concealing or assisting in the escape indispensable to establish the fact of marriage; because
of the principal in the crime" which makes her liable as an the presumption that the deceased and the accused
accessory after the fact under paragraph 3 of Article 19 of Teresa were married subsists by reason of the fact that
the Revised Penal Code. they had been living together for about thirteen (13) years
as evidenced by the birth of the child-witness Corazon,
As already indicated earlier, the offense committed by
who was 12 years old at the time her father was killed on
appellants was murder qualified by treachery. It being
June 24, 1967 by the accused-appellants, and who was 13
obvious that appellants deliberately chose nighttime to
years of age when she testified. They have other children
suddenly and without warning assault their victim, taking
aside from Corazon.
advantage of their number and arms, it is manifest that
they employed treachery to insure success in attaining That appellant Teresa is a co-conspirator, not merely an
their malevolent objective. In addition, it is indisputable accessory after the fact has been clearly demonstrated by
that appellants acted with evident premeditation. the testimony of her own daughter, Corazon, who
Talingdan made the threat to kill Bernardo Thursday night, declared categorically that she plotted with her co-
then he met with his co-accused to work out their appellants the assassination of her own husband whom
conspiracy Friday and again on Saturday evening just she betrayed time and time again by her repeated illicit
before the actual shooting. In other words, they had relations with her co-accused Nemesio Talingdan, a town
motive Talingdan's taking up the cudgels for his paramour, policeman and their neighbor. The record is abundant with
Teresa and enough time to meditate, and desist, if they evidence that Teresa, without a feeling for shame and
were not resolved to proceed with their objective. Finally, unnaturally lacking any concern for her minor children of
tender age, deserted several times their family home to On Thursday or two days before Bernardo was shot, he
live with and continue with her immoral relations with and Teresa had a quarrel during which Bernardo slapped
appellant Talingdan with whom at one time she cohabited Teresa several times by reason of which Teresa left the
for more than three (3) weeks. Her patient husband had to house and sought the help of the police. Shortly thereafter
look for her and to beg her to return each time she left the appellant Talingdan came and called Bernardo to come
family abode for the embrace of her lover. down. When Bernardo ignored him because Talingdan was
a policeman and was then armed, appellant Talingdan left
We should believe Corazon's statement that between 10 after warning Bernardo that someday he would kill him.
and 11 o'clock Friday morning, she saw her mother,
appellant Teresa, meeting with her other co-appellants in Can there be a clearer demonstration of the active
a small hut owned by her father some 300 to 400 meters cooperation of Teresa in the conspiracy against the life of
away from the latter's house near the creek where she her husband? The majority opinion admits that Teresa was
was then washing clothes; that she heard one of the a paramour of appellant Talingdan; hence, she wanted
conspirators say "Could he elude a bullet?"; that when her freedom from her husband, the victim, so that she could
mother noticed her presence, her mother shoved her enjoy the company of her lover, appellant Talingdan.
away saying, "You tell your father that we will kill him";
that in the evening of the following day, Saturday, June 24, From the evidence on record, appellant Teresa had no
1967, while she was cooking supper in their house, she moral compunction in deserting her family and her
saw her mother go down the stairs and meet the other children for the company of her lover. As heretofore
appellants in the yard about 3 to 4 meters from where she stated, she did this several times and continued to do so
was in the "batalan"; that she heard them conversing in until the violent death of her husband even as she was
subdued tones; that she was able to recognize all of them carrying a six-month old baby in her womb, the paternity
by the light coming from the kitchen lamp through the of which her husband denied.
open "batalan"; that she knows all of them very well as CASTRO, CJ., concurring:
they are all residents of their barrio and she used to see
them almost everyday; that she noted that appellants Concurs, with the observations, however, that the
were armed with long guns; that their meeting did not last evidence points to the appellant Teresa Domogma as a co-
long; that after about 2 minutes her mother, appellant principal and that she should therefore also be held guilty
Teresa, came up the house and proceed to her room while of murder and sentenced to death.
the other appellants hid under an avocado tree nearby;
that when supper was ready she called her parents to eat; TEEHANKEE, J., concurring:
that her father did not heed her call but continued working
Concurs, but join in the partial dissent of Mr. Justice
on a plow while her mother excused herself by saying she
Makasiar insofar as the penal liability of the accused
would first put her small baby to sleep; that she (Corazon)
Teresa Domogma is concerned.
ate alone after which she again called her parents to eat;
that about this time she informed her father about the G.R. No. 85204 June 18, 1990
presence of persons downstairs but her father paid no
heed to what she said; that her father proceeded to the JORGE TAER, petitioner,
kitchen and sat on the floor near the door while Corazon vs.
stayed nearby watching him; that at the that moment her THE HON. COURT OF APPEALS and THE PEOPLE OF THE
father was shot from below the stairs of the "batalan"; PHILIPPINES, respondents.
that the four accused then went up the stairs of the
Lord M. Marapao for petitioner.
"batalan" with their long guns and, upon seeing that her
father was still alive, appellants Talingdan and Tobias fired The Solicitor General for respondents.
at him again; that when she (Corazon) tried to call for help,
appellant Bides warned her saying "You call for help and I SARMIENTO, J.:
will kill you"; and that thereafter, the assailants fled
This is a petition for review on certiorari of the decision
towards the east.
rendered by the Court of Appeals in "People v. Jorge Taer,"
The foregoing testimony of 13-year old Corazon should be CA-G.R. CR No. 01213, 1 dated May 26, 1988, which
accorded belief in the same way that credence was given affirmed in toto the conviction of Jorge Taer for the crime
to her statement that, upon her mother's inquiry of cattle rustling by the Regional Trial Court of Bohol in
immediately after the shooting as to whether she Criminal Case No. 3104, 2 and the resolution of the same
recognized the assailants of her father, she (Corazon) court denying the petitioner's Motion for Reconsideration.
readily told her mother that she Identified appellants
After the required preliminary investigation in the 11th
Talingdan, Tobias, Berras and Bides as the culprits; for
Municipal Circuit Court at Valencia-Dimiao, in the province
which reason her mother warned her "Don't tell it to
of Bohol, the following information was filed in the then
anyone. I will kill you if you tell this to somebody."
Court of First Instance of Bohol, 14th Judicial District, 1. That the extent of his participation did not go beyond
Branch IV, at Tagbilaran City: the participation of the original defendants Cirilo Saludes
and Mario Cago. Therefore, he submits that the acquittal
The undersigned, Third Assistant Provincial Fiscal, hereby of these two by the trial court should also lead to his
accuses Emilio Namocatcat alias Milio, Mario Cago, Jorge acquittal; 5
Taer and Cerilo Saludes for the crime of Theft of Large
Cattle, committed as follows: 2. That the only evidence proving the alleged conspiracy
between him and Emilio Namocatcat was the confession
That on or about the 5th day of December, 1981, in of his co-accused Emilio Namocatcat. However this should
barangay Lantang, municipality of Valencia, province of not be considered as admissible because the same is
Bohol, Philippines, and within the jurisdiction of this hearsay under the rule of res inter alios
Honorable Court, the above-named accused, conspiring, acta. 6
confederating together and mutually helping with each
other, with the intent of gain and without the consent of The undisputed facts as found by the trial court show that:
the owner thereof, did then and there willfully, unlawfully
and feloniously take, steal and lead away two (2) male In the evening of December 5, 1981, accused Cirilo Saludes
carabaos with the total value of FOUR THOUSAND PESOS slept in the house of his compadre accused Jorge Taer at
(P4,000.00), Philippine Currency, belonging to and owned Datag, Garcia-Hernandez, Bohol, whereat he was
by Tirso Dalde and Eladio Palaca; to the damage and benighted. At about 2:00 o'clock dawn, December 6, 1981,
prejudice of the said offended parties in the aforestated accused Emilio Namocatcat and Mario Cago arrived at
amount. Taer's house with two (2) male carabaos owned by and
which Namocatcat wanted Taer to tend. The said carabaos
Acts committed contrary to the provisions of Articles 308, were left at Taer's place.
309 and 310 of the Revised Penal Code, with the
aggravating circumstance of nighttime being purposely Tirso Dalde and Eladio Palaca of Lantang, Valencia Bohol
sought for or taken advantage by the accused to facilitate discovered in the morning of December 6, 1981 that their
the commission of the crime. respective male carabaos, 3 to 4 years old, were missing at
the different grazing grounds whereat they tied the same
City of Tagbilaran, June 1, 1982. 3 the afternoon preceding.

After proper proceedings and trial, Saludes and Cago were After searching in vain for the carabaos at the vicinity,
acquitted but Taer and Namocatcat were convicted. The Dalde and Palaca reported the matter to the police. On
dispositive portion of the decision of the trial court, dated December 15, 1981, one Felipe Reyes of Hinopolan,
July 6, 1984, reads as follows: Valencia, Bohol, informed Dalde that he saw the latter's
lost carabao at Datag, Garcia-Hernandez. Forthwith Dalde
WHEREFORE, the Court finds accused Emilio Namocatcat and Palaca went on that day to Datag and there they
and Jorge Taer GUILTY beyond doubt of the theft of large found their missing carabaos tied to a bamboo thicket
cattle and appreciating against them the aggravating near the house accused Taer who was then not in the
circumstance of nocturnity and pursuant to Presidential house as he was in Napo, Garcia-Hernandez, attending the
Decree No. 533 each is hereby sentenced to undergo the fiesta where he cooked for the accused Saludes. Upon
indeterminate penalty of imprisonment of from SIX (6) query by Dalde and Palaca why their carabaos were found
YEARS and ONE DAY TO FOURTEEN (14) YEARS, TEN (10) at his place, accused Taer, according to Dalde and Palaca
MONTHS and TWENTY ONE (21) DAYS, together with the replied that the carabaos reached his place tied together
accessory penalties, and to pay the costs; they are entitled without any person in company. According to accused
to credit for their preventive imprisonment. Accused Taer, what he told Dalde and Palaca was that the carabaos
Mario Cago and Cirilo Saludes are ACQUITTED for were brought to his place by the accused Namocatcat who
insufficiency of evidence. 4 asked him to tell anybody looking for them that they just
Only Jorge Taer appealed to the Court of Appeals. The strayed thereat.
Court of Appeals, finding the evidence of the prosecution The 2 carabaos were taken by Dalde and Palaca from
that conspiracy indeed existed between Emilio accused Taer's possession on that day, December 15. 7
Namocatcat and Jorge Taer, affirmed in toto the decision
appealed from. But the affirmance did not affect Emilio xxx xxx xxx
Namocatcat because, as adverted to earlier, he did not
appeal his conviction by the Regional Trial Court. The Court of Appeals would consider these as proof of the
existence of conspiracy:
Hence, this petition for review was filed by Taer alone.
Altho (sic) accused Taer admitted that before December 6,
In sum, Taer interposed these twin arguments: 1981, he had not met accused Namocatcat since 1975 and
had not previously tended any carabao belonging to
Namocatcat, it is unbelievable that Taer was not suspicious a view to the furtherance of the common design and
of the origin of the 2 male carabaos which to say the least purpose.
were delivered to him to be tended under strange
circumstances, to wit, at the unholy hour of 2:00 o'clock At most the facts establish Taer's knowledge of the crime.
dawn after a travel of 14 kilometers' in the dead of the And yet without having participated either as principal or
night. He unreservedly accepted the charge of tending as an accomplice, for he did not participate in the taking of
them with the agreement as to the sharing of the produce the carabaos, he took part subsequent to the commission
out of said carabaos (sic) use. If, as he asserted, of the act of taking by profiting himself by its effects. Taer
Namocatcat left the carabaos with him with the word that is thus only an accessory after the fact.
if anybody would look for them he was to tell that the
Article 19 of the Revised Penal Code states:
carabaos just strayed into his other carabaos (sic), the
more Taer ought to be more suspicious as to the origin of Accessories are those who, having knowledge of the
said carabaos, yet, since that dawn delivery on December commission of the crime, and without having participated
6, 1981, until they were retrieved from his possession, he therein, either as principals or accomplices, take part
never apprised the barangay captain, living just 2 subsequent to its commission in any of the following
kilometers away from his house, about the matter. He manners:
continued to hold on to the stolen carabaos until they
were recovered 10 days later. 1. By profiting themselves or assisting the offender to
profit by the effects of the crime; 11
Ordinarily, one would not hold on to a thing he suspects to
be stolen to obviate any criminal responsibility or xxx xxx xxx
implication. But accused Taer did the opposite-a clear
Person who received any property from another, and used
indication that he and accused Namocatcat did have some
it, knowing that the same property had been stolen is
kind of an unlawful agreement regarding the stolen
guilty as an accessory because he is profiting by the effects
carabaos. He did not even reveal immediately to the
of the crime." By employing the two carabaos in his farm,
authorities that the carabaos delivered to him by
Taer was profiting by the objects of the theft. 12
Namocatcat were stolen and he tried his best to keep
under cover Namocatcat's Identity. On the conspiracy charge, the most cogent proof that the
prosecution could ever raise was the implication made by
The Court, therefore, finds that conspiracy between
the accused Namocatcat (he did not appeal his conviction
accused Namocatcat and Taer in the theft of the carabaos
to the Court of Appeals) in his affidavit of confession. 13
has been established beyond doubt. 8
However, the settled rule is that the rights of a party can
xxx xxx xxx
not be prejudiced by an act, declaration, or omission of
We disagree with the findings of the respondent court; another. 14
they are mere suspicions and speculations. The
The testimony, being res inter alios acta, can not affect
circumstances adverted to above do not establish
another except as provided in the Rules of Court. This rule
conspiracy beyond reasonable doubt.
on res inter alios acta specifically applies when the
There is conspiracy when two or more persons come to an evidence consists of an admission in an extrajudicial
agreement regarding the commission of an offense and confession or declaration of another because the
decide to commit it. Although the facts may show a unity defendant has no opportunity to cross-examine the co-
of purpose and unity in the execution of the unlawful conspirator testifying against him. 15
objective, essential however is an agreement to commit
Since this is the only evidence of the prosecution to prove
the crime and a decision to commit it. 9
the conspiracy with Namocatcat, this uncorroborated
Only recently we emphasized the rule that: testimony can not be sufficient to convict Taer.

Conspiracy must be established not by conjectures, but by The offense for which Taer is accused is covered by Articles
positive and conclusive evidence. The same degree of 308, 309, and 310, as amended by "Me Anti-Cattle Rustling
proof necessary to establish the crime is required to Law of 1974. 1116 The penalty imposed on the principal
support a finding of the presence of criminal conspiracy, for the crime of cattle rustling is:
which is, proof beyond reasonable doubt. 10
Sec. 8. Penal provisions. — Any person convicted of cattle
Thus mere knowledge, acquiescence to, or approval of the rustling as herein defined shall, irrespective of the value of
act, without cooperation or agreement to cooperate, is the large cattle involved, be punished by prision mayor in
not enough to constitute one a party to a conspiracy its maximum period to reclusion temporal in its medium
absent the intentional participation in the transaction with period if the offense is committed without violence against
or intimidation of persons or force upon things. If the
offense is committed with violence against or intimidation Melencio-Herrera (Chairperson), Paras, Padilla and
of persons or force upon things, the penalty of reclusion Regalado, JJ., concur.
temporal in its maximum period to reclusion perpetua shall
be imposed. If a person is seriously injured or killed as a G.R. No. 111426 July 11, 1994
result or on the occasion of the commission of cattle NORMA DIZON-PAMINTUAN, petitioner,
rustling, the penalty of reclusion perpetua to death shall be vs.
imposed. 17
xxx xxx xxx Puno and Puno for petitioner.
Inasmuch as Taer's culpability is only that of an accessory
The Solicitor General for respondent.
after the fact, under Art. 53 of the Revised Penal Code, the
penalty lower by two degrees than that prescribed by law DAVIDE, JR., J.:
for the consummated felony shall be imposed.
The chief issue presented for our determination in this
The penalty two degrees lower than that imposed under petition for review under Rule 45 of the Rules of Court is
the first sentence of Section 8 of PD No. 533 is arresto the correctness of the decision of 29 March 1993 of the
mayor maximum or 4 months and one day to 6 months Court of Appeals in CA-G.R. CR No. 110241 which affirmed
to prision correccional medium or 2 years 4 months and 1 the decision of Branch 20 of the Regional Trial Court of
day to 4 years and 2 months. In addition, the Revised Penal Manila in Criminal Case No. 88-649542 finding the
Code provides that when the penalties prescribed by law petitioner guilty of the violation of the Anti-Fencing Law
contain three periods, whether it be a single divisible (P.D. No. 1612) but set aside the penalty imposed and
penalty or composed of three different penalties, the ordered the trial court to receive additional evidence on
courts shag observe the rule that when there are neither the "correct valuation" of the pieces of jewelry involved
aggravating nor mitigating circumstances, they shall for the sole purpose of determining the penalty to be
impose the penalty prescribed by law in its medium imposed.
period. 18 Hence the imposable penalty would be prision
correccional minimum or 6 months and 1 day to 2 years The information in Criminal Case No. 88-64954 charged
and 4 months imprisonment. the petitioner with the violation of the Anti-Fencing Law in
Since the maximum term of imprisonment exceeds one
year, we apply the Indeterminate Sentence Law. 19 on or about and during the period from February 12, to
February 24, 1988, inclusive, in the City of Manila,
This law provides that the maximum term of imprisonment Philippines, the said accused, with intent of gain for herself
shall be that which, in view of the attending or for another, did then and there wilfully, unlawfully and
circumstances, could be properly imposed under the rules knowingly buy and keep in her possession and/or sell or
of the said code which is prision correccional minimum or dispose of the following jewelries, to wit: one (1) set of
6 months and 1 day to 2 years and 4 months. And the earrings, a ring studded with diamonds in a triangular
minimum shall be within the range of the penalty next style, one (1) set of earrings (diamond studded) and one
lower to that prescribed by the Code for the offense. The (1) diamond-studded crucifix, or all valued at P105,000.00,
penalty next lower would be in the range which she knew or should have known to have been
of destierro maximum or 4 years 2 months and 1 day to 6 derived from the proceeds of the crime of robbery
years to arresto mayor medium or 2 months and 1 day to 4 committed by Joselito Sacdalan Salinas against the owner
months. Teodoro and Luzviminda Encarnacion.3

WHEREFORE, the decision rendered by the Regional Trial On the basis of the testimonies of prosecution witnesses
Court of Tagbilaran and affirmed by the respondent Court Teodoro Encarnacion (one of the offended parties), Cpl.
of Appeals is hereby MODIFIED in that the herein JORGE Ignacio Jao, Jr., and Pfc. Emmanuel Sanchez, both of the
TAER is convicted as an accessory of the crime of cattle- Western Police District, the trial court promulgated on 16
rustling as defined and penalized by PD No. 533 amending November 1990 its decision, the dispositive portion of
Arts. 308, 309, and 310 of the Revised Penal Code and he which reads:
will serve the minimum penalty within the range of arresto
mayor medium, which we shall fix at 4 months WHEREFORE, the prosecution having proved the guilty of
imprisonment and the maximum penalty of prision the accused for violation of Presidential Decree No. 1612
correccional minimum which we shall fix at 2 years. beyond reasonable doubt, the accused Norma Dizon-
Pamintuan is hereby sentenced to suffer an indeterminate
With costs. penalty of imprisonment from FOURTEEN (14) YEARS
of prision mayor to NINETEEN (19) YEARS of reclusion
SO ORDERED. temporal.
No civil liability in view of the recovery of the items, showcase to the WPD station. He further testified that he
subject-matter of this case. has no prior knowledge of the stolen jewelries of the
private complainant from one store to another.
With costs.4
Pfc. Emmanuel Sanchez of the WPD testified that he
The evidence of the prosecution is summarized by the trial reported for duty on February 24, 1988; that he was with
court as follows: the group who accompanied the spouses Encarnacion in
Teodoro Encarnacion, Undersecretary, Department of Sta. Cruz, Manila and was around when the couple saw
some of the lost jewelries in the display stall of the
Public Works and Highways testified that he has just
arrived at his residence located at Better Living accused. He was likewise present during the early part of
Subdivision, Parañaque at around 9:45 p.m. of February the investigation of the WPD station.5
12, 1988 coming from the Airport and immediately The recovery of the pieces of jewelry, on the basis of
proceeded inside the house, leaving behind his driver and which the trial court ruled that no civil liability should be
two housemaids outside to pick-up his personal belongings adjudged against the petitioner, took place when, as
from his case. It was at this point that five unidentified testified to by Teodoro Encarnacion, the petitioner
masked armed persons appeared from the grassy portion "admitted that she got the items but she did not know
of the lot beside the house and poked their guns to his they were stolen [and that] she surrendered the items and
driver and two helpers and dragged them inside his house. gave them to [his] wife."6
That the men pointed a gun at him and was made to lie
face down on the floor. The other occupants, namely his On the other hand, the version of the defense, as testified
wife, the maids and his driver were likewise made to lie on to by Rosito Dizon-Pamintuan, is summarized by the trial
the floor. Thereafter, the robbers ransacked the house and court thus:
took away jewelries and other personal properties
including cash. After the intruders left the house he The defense presented only the testimony of Rosito Dizon-
reported the matter immediately to the police. He was Pamintuan who testified that he is the brother of Norma
then interviewed by the Parañaque police and was Dizon-Pamintuan and that sometime around 11:00 a.m. of
informed that an operation group would be assigned to February 24, 1985, he, together with the accused went
the case. infront of the Carinderia along Florentino Torres Street,
Sta. Cruz, Manila waiting for a vacancy therein to eat
He likewise reported the matter to the Western Police lunch. Suddenly, three persons arrived and he overheard
District on February 15, 1988. Two days later, a group of that Cpl. Jao told her sister to get the jewelry from inside
WPD operatives came over to his house and he was asked the display window but her sister requested to wait for
to prepare a list of items of jewelry and other valuables Fredo, the owner of the stall. But ten minutes later when
that were lost including a sketch of distinctive items. He said Fredo did not show up, the police officer opened the
was later told that some of the lost items were in display window and got the contents of the same. The
Chinatown area as tipped by the informer the police had display stall was hauled to a passenger jeepney and the
dispatched. That an entrapment would be made with their same, together with the accused were taken to the police
participation, on February 14, 1988. As such, they went to headquarters. He likewise testified that he accompanied
Camp Crame at around 9:00 a.m. and arrived at the vicinity his sister to the station and after investigation was sent
of 733 Florentino Torres Street, Sta. Cruz, Manila at about home.7
10:00 a.m.; that he is with his wife posed as a buyer and
were able to recognize items of the jewelry stolen In convicting the petitioner, the trial court made the
displayed at the stall being tended by Norma Dizon following findings:
Pamintuan; the pieces were: 1 earring and ring studded The prosecution was able to prove by evidence that the
with diamonds worth P75,000 bought from estimator recovered items were part of the loot and such recovered
Nancy Bacud (Exh. "C-2"), 1 set of earring diamond worth items belong to the spouses Encarnacion, the herein
P15,000 (Exh. "C-3") and 1 gold chain with crucifix worth private complainants. That such items were recovered by
P3,000 (Exh. "C-4"). the Police Officers from the stall being tended by the
Corporal Ignacio Jao, Jr. of the WPD testified that he was accused at that time. Of importance, is that the law
with the spouses Teodoro Encarnacion, Jr. in the morning provides a disputable presumption of fencing under
of February 24, 1988 and they proceeded to Florentino Section 5 thereof, to wit:
Torres Street, Sta. Cruz, Manila at the stall of Norma Dizon- Mere possession of any goods, article, item object, or
Pamintuan together with Sgt. Perez. After the spouses anything of value which has been the subject of robbery or
Encarnacion recognized the items subject matter of the
thievery shall be prima facie evidence of fencing.
robbery at the display window of the stall being tended by
the herein accused, they invited the latter to the precinct There is no doubt that the recovered items were found in
and investigated the same. They likewise brought the said the possession of the accused and she was not able to
rebut the presumption though the evidence for the On the element of knowledge that the items are derived
defense alleged that the stall is owned by one Fredo. A from the proceeds of the crime of robbery and of intent to
distinction should likewise be made between ownership gain for herself or for another, the Anti-Fencing Law
and possession in relation to the act of fencing. Moreover, provides:
as to the value of the jewelries recovered, the prosecution
was able to show that the same is Ninety Three Thousand Sec. 5. Presumption of Fencing. — Mere possession of any
Pesos (P93,000.00).8 good, article, item, object, or anything of value which has
been the subject of robbery or thievery shall be prima
The petitioner then appealed her conviction to the Court facie evidence of fencing.
of Appeals (CA-G.R. CR No. 11024) where she raised two
issues: (1) that the judgment was based on a mere Knowledge and intent to gain are proven by the fact that
presumption, and (2) that the prosecution failed to show these jewelries were found in possession of appellant and
that the value of the jewelry recovered is P93,000.00. they were displayed for sale in a showcase being tended
by her in a stall along Florentino Street, Sta. Cruz, Manila.9
In its challenged decision of 29 March 1993, the Court of
Appeals disposed of the first issue in this wise: Nevertheless, the Court of Appeals was of the opinion that
there was not enough evidence to prove the value of the
The guilt of accused-appellant was established beyond pieces of jewelry recovered, which is essential to the
reasonable doubt. All the elements of the crime of fencing imposition of the proper penalty under Section 3 of P.D.
in violation of the Anti-Fencing Law of 1979 (P.D. No. No. 1612. It opined that the trial court erred in concluding
1612), to wit: that "the value of the recovered jewelries is P93,000.00
based on the bare testimony of the private complainant
1. A crime of robbery or theft has been committed; and the self-serving list he submitted (Exhs. C, C-2 and C-4,
2. A person, not a participant in said crime, buys, receives, TSN, Hearing of October 3, 1993)."10
possesses, keeps, acquires, conceals, sells or disposes, or The dispositive portion of the Court of Appeals' decision
buys and sells; or in any manner deals in any article or reads:
item, object or anything of value;
WHEREFORE, finding that the trial court did not commit
3. With personal knowledge, or should be known to said any reversible error, its decision dated October 26, 1990
person that said item, object or anything of value has been convincing accused appellant is hereby AFFIRMED with the
derived from the proceeds of the crime of robbery or modification that the penalty imposed is SET ASIDE and
theft; the Regional Trial Court (Branch 20) of Manila is ordered
to receive evidence with respect to the correct valuation of
4. With intent to gain for himself or for another;
the properties involved in this case, marked as Exhibits
have been established by positive and convincing evidence "C", "C-2" and "C-4" for the sole purpose of determining
of the prosecution . . . the proper penalty to be meted out against accused under
Section 3, P.D. No. 1612. Let the original records be
... remanded immediately.11
The fact that a crime of robbery has been committed on Hence, this petition wherein the petitioner contends that:
February 12, 1988 is established by the testimony of
private complainant Teodoro T. Encarnacion who I
immediately reported the same to Parañaque Police
Station of the Southern Police District (TSN, Hearings of PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY
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, Parañaque, Metro Manila JURISPRUDENCE.
(Exh. C, II
C-1 to C-4 and D).
The second element is likewise established by convincing ERRED IN REMANDING THE CASE TO THE COURT A QUO
evidence. On February 24, 1988, accused-appellant was FOR RECEPTION OF EVIDENCE FOR THE PURPOSE OF
found selling the jewelries (Exhs. C-2, C-3 and C-4) which DETERMINING THE CORRECT PENALTY TO BE IMPOSED.12
was displayed in a showcase in a stall located at Florentino
Street, Sta. Cruz, Manila. [Testimonies of Teodoro On 23 February 1994, after the public respondents had
Encarnacion (id. supra); Cpl. Ignacio Jao (TSN, Hearing of filed their Comment and the petitioner her Reply to the
February 13, 1989) and Pfc. Emmanuel Sanchez (TSN, Comment, this Court gave due course to the petition and
Hearing of June 4, 1989)].
required the parties to submit their respective 4. There is, on the part of the accused, intent to gain for
memoranda, which they subsequently complied with. himself or for another.

The first assigned error is without merit. In the instant case, there is no doubt that the first, second,
and fourth elements were duly established. A robbery was
Fencing, as defined in Section 2 of P.D. No. 1612 (Anti- committed on 12 February 1988 in the house of the
Fencing Law), is "the act of any person who, with intent to private complainants who afterwards reported the
gain for himself or for another, shall buy, receive, possess, incident to the Parañaque Police, the Western Police
keep, acquire, conceal, sell or dispose of, or shall buy and District, the NBI, and the CIS, and submitted a list of the
sell, or in any manner deal in any article, item, object or lost items and sketches of the jewelry taken from them
anything of value which he knows, or should be known to (Exhibits "C" and "D"). Three of these items stolen, viz., (a)
him, to have been derived from the proceeds of the crime a pair of earrings and ring studded with diamonds worth
of robbery or theft." P75,000.00 (Exhibit "C-2"); (b) one set of earrings worth
Before P.D. No. 1612, a fence could only be prosecuted for P15,000.00 (Exhibit "C-3"); and (c) a chain with crucifix
worth P3,000.00 (Exhibit "C-4"), were displayed for sale at
and held liable as an accessory, as the term is defined in
a stall tended to by the petitioner in Florentino Torres
Article 19 of the Revised Penal Code. The penalty
Street, Sta. Cruz, Manila. The public display of the articles
applicable to an accessory is obviously light under the rules
prescribed in Articles 53, 55, and 57 of the Revised Penal for sale clearly manifested an intent to gain on the part of
Code, subject to the qualification set forth in Article 60 the petitioner.
thereof. Nothing, however, the reports from law The more crucial issue to be resolved is whether the
enforcement agencies that "there is rampant robbery and prosecution proved the existence of the third element:
thievery of government and private properties" and that that the accused knew or should have known that the
"such robbery and thievery have become profitable on the items recovered from her were the proceeds of the crime
part of the lawless elements because of the existence of of robbery or theft.
ready buyers, commonly known as fence, of stolen
properties," P.D. One is deemed to know a particular fact if he has the
No. 1612 was enacted to "impose heavy penalties on cognizance, consciousness or awareness thereof, or is
persons who profit by the effects of the crimes of robbery aware of the existence of something, or has the
and theft." Evidently, the accessory in the crimes of acquaintance with facts, or if he has something within the
robbery and theft could be prosecuted as such under the mind's grasp with certitude and clarity.16 When knowledge
Revised Penal Code or under P.D. No. 1612. However, in of the existence of a particular fact is an element of an
the latter case, he ceases to be a mere accessory but offense, such knowledge is established if a person is aware
becomes aprincipal in the crime of fencing. Elsewise of a high probability of its existence unless he actually
stated, the crimes of robbery and theft, on the one hand, believes that it does not exist.17 On the other hand, the
and fencing, on the other, are separate and distinct words "should know" denote the fact that a person of
offenses.13 The state may thus choose to prosecute him reasonable prudence and intelligence would ascertain the
either under the Revised Penal Code or P.D. No. 1612, fact in performance of his duty to another or would govern
although the preference for the latter would seem his conduct upon assumption that such fact
inevitable considering that fencing is a malum prohibitum, exists.18 Knowledge refers to a mental state of awareness
and P.D. No. 1612 creates a presumption of fencing14 and about a fact. Since the court cannot penetrate the mind of
prescribes a higher penalty based on the value of the an accused and state with certainty what is contained
property.15 therein, it must determine such knowledge with care from
the overt acts of that person. And given two equally
The elements of the crime of fencing are: plausible states of cognition or mental awareness, the
court should choose the one which sustains the
1. A crime of robbery or theft has been committed;
constitutional presumption of innocence.19
2. The accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft, buys, Since Section 5 of P.D. No. 1612 expressly provides that
"[m]ere possession of any good, article, item, object, or
receives, possesses, keeps, acquires, conceals, sells or
disposes, or buys and sells, or in any manner deals in any anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing," it
article, item, object or anything of value, which has been
follows that the petitioner is presumed to have knowledge
derived from the proceeds of the said crime;
of the fact that the items found in her possession were the
3. The accused knows or should have known that the said proceeds of robbery or theft. The presumption is
article, item, object or anything of value has been derived reasonable for no other natural or logical inference can
from the proceeds of the crime of robbery or theft; and 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 obtained from an unlicensed dealer or supplier thereof,
case of United States vs. shall before offering the same for sale to the public, secure
Luling, 21 this Court held: the necessary clearance or permit from the station
commander of the Integrated National Police in the town
It has been frequently decided, in case of statutory crimes, or city where such store, establishment or entity is
that no constitutional provision is violated by a statute located." Under the Rules and Regulations24 promulgated
providing that proof by the state of some material fact or to carry out the provisions of Section 6, an unlicensed
facts shall constitute prima facieevidence of guilt, and that dealer/supplier refers to any person, partnership, firm,
then the burden is shifted to the defendant for the corporation, association or any other entity or
purpose of showing that such act or acts are innocent and establishment not licensed by the government to engage
are committed without unlawful intention. in the business of dealing in or supplying "used
(Commonwealth vs. Minor, 88 Ky., 422.) secondhand articles," which refers to any good, article,
In some of the States, as well as in England, there exist item, object or anything of value obtained from an
unlicensed dealer or supplier, regardless of whether the
what are known as common law offenses. In the Philippine
Islands no act is a crime unless it is made so by statute. The same has actually or in fact been used.
state having the right to declare what acts are criminal, We do not, however, agree with the Court of Appeals that
within certain well defined limitations, has a right to there is insufficient evidence to prove the actual value of
specify what act or acts shall constitute a crime, as well as the recovered articles.
what proof shall constitute prima facie evidence of guilt,
and then to put upon the defendant the burden of As found by the trial court, the recovered articles had a
showing that such act or acts are innocent and are not total value of P93,000.00, broken down as follows:
committed with any criminal intent or intention.
a) one earring and ring studded with diamonds (Exh. "C-2")
In his book on constitutional law,22 Mr. Justice Isagani A. — P75,000.00
Cruz said:
b) one set of earring (Exh. "C-3") — P15,000.00
Nevertheless, the constitutional presumption of innocence
may be overcome by contrary presumptions based on the c) one gold chain with crucifix (Exh. "C-4") — P3,000.00
experience of human conduct [People vs. Labara, April 20,
These findings are based on the testimony of Mr.
1954]. Unexplained flight, for example, may lead to an Encarnacion 25 and on Exhibit "C,"26 a list of the items
inference of guilt, as 'the wicked flee when no man
which were taken by the robbers on 12 February 1988,
pursueth, but the righteous is as bold as a lion. Failure on together with the corresponding valuation thereof. On
the part of the accused to explain his possession of stolen cross-examination, Mr. Encarnacion re-affirmed his
property may give rise to the reasonable presumption that testimony on direct examination that the value of the
it was he himself who had stolen it [U.S. vs. Espia, 16 Phil. pieces of jewelry described in Exhibit "C-2" is
506]. Under our Revised Penal Code, the inability of an P75,000.0027 and that the value of the items described in
accountable officer to produce funds or property Exhibit "C-3" is P15,000.00, although he admitted that only
entrusted to him will be considered prima facie evidence one earring — and not the pair — was recovered. 28 The
that he has appropriated them to his personal use [Art.
cross-examination withheld any question on the gold chain
217]. According to Cooley, the constitutional presumption with crucifix described in Exhibit "C-4." In view, however,
will not apply as long as there is "some rational connection of the admission that only one earring was recovered of
between the fact proved and the ultimate fact presumed,
the jewelry described in Exhibit "C-3," it would be
and the inference of one fact from proof of another shall reasonable to reduce the value from P15,000.00 to
not be so unreasonable as to be purely arbitrary mandate" P7,500.00. Accordingly, the total value of the pieces of
[1 Cooley, 639]. jewelry displayed for sale by the petitioner and established
The petitioner was unable to rebut the presumption under to be part of the proceeds of the robbery on 12 February
P.D. No. 1612. She relied solely on the testimony of her 1988 would be P87,000.00.
brother which was insufficient to overcome the Section 3(a) of P.D. No. 1612 provides that the penalty
presumption, and, on the contrary, even disclosed that the of prision mayor shall be imposed upon the accused if the
petitioner was engaged in the purchase and sale of jewelry value of the property involved is more than P12,000.00 but
and that she used to buy from a certain Fredo.23 does not exceed P22,000.00, and if the value of such
Fredo was not presented as a witness and it was not property exceeds the latter sum, the penalty of prision
established that he was a licensed dealer or supplier of mayor should be imposed in its maximum period, adding
jewelry. Section 6 of P.D. No. 1612 provides that "all one year for each additional P10,000.00; the total penalty
stores, establishments or entitles dealing in the buy and which may be imposed, however, shall not exceed twenty
sell of any good, article, item, object or anything of value 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 case before the Court is an appeal via certiorari from a
The maximum penalty that can be imposed in this case decision of the Court of Appeals * affirming that of the
would then be eighteen (18) years and five (5) months, Regional Trial Court of Manila, Branch 19, ** convicting
which is within the range of reclusion temporal maximum. petitioner of the crime of fencing.
Applying the Indeterminate Sentence law which allows the
imposition of an indeterminate penalty which, with Complainant Rosita Lim is the proprietor of Bueno Metal
respect to offenses penalized by a special law, shall range Industries, located at 301 Jose Abad Santos St., Tondo,
from a minimum which shall not be lower than the Manila, engaged in the business of manufacturing
minimum prescribed by the special law to a maximum propellers or spare parts for boats. Manuelito Mendez was
which should not exceed the maximum provided therein, one of the employees working for her. Sometime in
the petitioner can thus be sentenced to an indeterminate February 1991, Manuelito Mendez left the employ of the
penalty ranging from ten (10) years and one (1) day company. Complainant Lim noticed that some of the
of prision mayor maximum, as minimum to eighteen (18) welding rods, propellers and boat spare parts, such as
years and five (5) months of reclusion temporal maximum bronze and stainless propellers and brass screws were
as maximum, with the accessory penalties corresponding missing. She conducted an inventory and discovered that
to the latter. propellers and stocks valued at P48,000.00, more or less,
were missing. Complainant Rosita Lim informed Victor Sy,
In the light of the foregoing, the Court of Appeals erred in uncle of Manuelito Mendez, of the loss. Subsequently,
setting aside the penalty imposed by the trial court and in Manuelito Mendez was arrested in the Visayas and he
remanding the case to the trial court for further reception admitted that he and his companion Gaudencio Dayop
of evidence to determine the actual value of the pieces of stole from the complainant's warehouse some boat spare
jewelry recovered from the petitioner and for the parts such as bronze and stainless propellers and brass
imposition of the appropriate penalty. screws. Manuelito Mendez asked the complainant's
forgiveness. He pointed to petitioner Ramon C. Tan as the
We do not agree with the petitioner's contention, though, one who bought the stolen items and who paid the
that a remand for further reception of evidence would amount of P13,000.00, in cash to Mendez and Dayop, and
place her in double jeopardy. There is double jeopardy they split the amount with one another. Complainant did
when the following requisites concur: (1) the first jeopardy not file a case against Manuelito Mendez and Gaudencio
must have attached prior to the second, (2) the first Dayop.
jeopardy must have validly been terminated, and (3) the
second jeopardy must be for the same offense as that in On relation of complainant Lim, an Assistant City
the first.29 Such a concurrence would not occur assuming Prosecutor of Manila filed with the Regional Trial Court,
that the case was remanded to the trial court. Manila, Branch 19, an information against petitioner
charging him with violation of Presidential Decree No.
WHEREFORE, the instant petition is partly GRANTED by 1612 (Anti-Fencing Law) committed as follows:
setting aside the challenged decision of the Court of
Appeals in CA-G.R. CR No. 11024 insofar as it sets aside the That on or about the last week of February 1991, in the
penalty imposed by Branch 20 of the Regional Trial Court City of Manila, Philippines, the said accused, did then and
of Manila in Criminal Case No. 88-64954 and orders the there wilfully, unlawfully and feloniously knowingly
remand of the case for the trial court to receive evidence receive, keep, acquire and possess several spare parts and
with respect to the correct value of the properties items for fishing boats all valued at P48,130.00 belonging
involved. The decision of the Regional Trial Court is to Rosita Lim, which he knew or should have known to
AFFIRMED subject to the modification of the penalty which have been derived from the proceeds of the crime of theft.
is hereby reduced to an indeterminate penalty ranging
from Ten (10) years and One (1) day of Prision Contrary to law.
Mayor maximum as minimum to Eighteen (18) years and
Upon arraignment on November 23, 1992, petitioner
Five (5) months of Reclusion Temporal maximum
Ramon C. Tan pleaded not guilty to the crime charged and
as maximum, with the accessory penalties of the latter. waived pre-trial. To prove the accusation, the prosecution
SO ORDERED. presented the testimonies of complainant Rosita Lim,
Victor Sy and the confessed thief, Manuelito Mendez.
Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.
On the other hand, the defense presented Rosita Lim and
G.R. No. 134298 August 26, 1999 Manuelito Mendez as hostile witnesses and petitioner
himself. The testimonies of the witnesses were
RAMON C. TAN, petitioner, summarized by the trial court in its decision, as follows:
PEOPLE OF THE PHILIPPINES, respondent. ROSITA LIM stated that she is the owner of Bueno Metal
Industries, engaged in the business of manufacturing
PARDO, J.: propellers, bushings, welding rods, among others (Exhibits
A, A-1, and B). That sometime in February 1991, after one stolen the missing items and sold to Mr. Ramon Tan in Sta.
of her employees left the company, she discovered that Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz
some of the manufactured spare parts were missing, so where he pointed to Mr. Tan as the buyer, but when
that on February 19, 1991, an inventory was conducted confronted, Mr. Tan denied the same.
and it was found that some welding rods and propellers,
among others, worth P48,000.00 were missing. Thereafter, ROSITA LIM, when called to testify as a hostile witness,
she went to Victor Sy, the person who recommended Mr. narrated that she owns Bueno Metal Industries located at
Mendez to her. Subsequently, Mr. Mendez was arrested in 301 Jose Abad Santos Street, Tondo, Manila. That two (2)
the Visayas, and upon arrival in Manila, admitted to his days after Manuelito Mendez and Gaudencio Dayop left,
having stolen the missing spare parts sold then to Ramon her husband, William Tan, conducted an inventory and
Tan. She then talked to Mr. Tan, who denied having discovered that some of the spare parts worth P48,000.00
bought the same.1âwphi1.nêt were missing. Some of the missing items were under the
name of Asia Pacific and William Tan.
When presented on rebuttal, she stated that some of their
stocks were bought under the name of Asia Pacific, the MANUELITO MENDEZ, likewise, when called to testify as a
guarantor of their Industrial Welding Corporation, and hostile witness, stated that he received a subpoena in the
stated further that whether the stocks are bought under Visayas from the wife of Victor Sy, accompanied by a
the name of the said corporation or under the name of policeman of Buliloan, Cebu on April 8, 1991. That he
William Tan, her husband, all of these items were actually consented to come to Manila to ask forgiveness from
delivered to the store at 3012-3014 Jose Abad Santos Rosita Lim. That in connection with this case, he executed
Street and all paid by her husband. an affidavit on April 12, 1991, prepared by a certain Atty.
Perlas, a CIS personnel, and the contents thereof were
That for about one (1) year, there existed a business explained to him by Rosita Lim before he signed the same
relationship between her husband and Mr. Tan. Mr. Tan before Atty. Jose Tayo, a Notary Public, at Magnolia House,
used to buy from them stocks of propellers while they Carriedo, Manila (Exhibits C and C-1).
likewise bought from the former brass woods, and that
there is no reason whatsoever why she has to frame up That usually, it was the secretary of Mr. Tan who accepted
Mr. Tan. the items delivered to Ramon Hardware. Further, he
stated that the stolen items from the warehouse were
MANUELITO MENDEZ stated that he worked as helper at placed in a sack and he talked to Mr. Tan first over the
Bueno Metal Industries from November 1990 up to phone before he delivered the spare parts. It was Mr. Tan
February 1991. That sometime in the third week of himself who accepted the stolen items in the morning at
February 1991, together with Gaudencio Dayop, his co- about 7:00 to 8:00 o'clock and paid P13,000.00 for them.
employee, they took from the warehouse of Rosita Lim
some boat spare parts, such as bronze and stainless RAMON TAN, the accused, in exculpation, stated that he is
propellers, brass screws, etc. They delivered said stolen a businessman engaged in selling hardware (marine spare
items to Ramon Tan, who paid for them in cash in the parts) at 944 Espeleta Street, Sta. Cruz, Manila.
amount of P13,000.00. After taking his share (one-half He denied having bought the stolen spare parts worth
(1/2) of the amount), he went home directly to the P48,000.00 for he never talked nor met Manuelito
province. When he received a letter from his uncle, Victor Mendez, the confessed thief. That further the two (2)
Sy, he decided to return to Manila. He was then receipts presented by Mrs. Lim are not under her name
accompanied by his uncle to see Mrs. Lim, from whom he and the other two (2) are under the name of William Tan,
begged for forgiveness on April 8, 1991. On April 12, 1991,
the husband, all in all amounting to P18,000.00. Besides,
he executed an affidavit prepared by a certain Perlas, a CIS the incident was not reported to the police (Exhibits 1 to 1-
personnel, subscribed to before a Notary Public (Exhibits C
and C-1).
He likewise denied having talked to Manuelito Mendez
VICTORY [sic] SY stated that he knows both Manuelito over the phone on the day of the delivery of the stolen
Mendez and Mrs. Rosita Lim, the former being the nephew items and could not have accepted the said items
of his wife while the latter is his auntie. That sometime in
personally for everytime (sic) goods are delivered to his
February 1991, his auntie called up and informed him store, the same are being accepted by his staff. It is not
about the spare parts stolen from the warehouse by
possible for him to be at his office at about 7:00 to 8:00
Manuelito Mendez. So that he sent his son to Cebu and
o'clock in the morning, because he usually reported to his
requested his kumpadre, a police officer of Sta. Catalina, office at 9:00 o'clock. In connection with this case, he
Negros Occidental, to arrest and bring Mendez back to
executed a counter-affidavit (Exhibits 2 and 2-a).1
Manila. When Mr. Mendez was brought to Manila,
together with Supt. Perlas of the WPDC, they fetched Mr. On August 5, 1996, the trial court rendered decision, the
Mendez from the pier after which they proceeded to the dispositive portion of which reads:
house of his auntie. Mr. Mendez admitted to him having
WHEREFORE, premises considered, the accused RAMON C. Revised Penal Code, but the penalty was light as it was two
TAN is hereby found guilty beyond reasonable doubt of (2) degrees lower than that prescribed for the principal.7
violating the Anti-Fencing Law of 1979, otherwise known
as Presidential Decree No. 1612, and sentences him to P.D. No. 1612 was enacted to "impose heavy penalties on
suffer the penalty of imprisonment of SIX (6) YEARS and persons who profit by the effects of the crimes of robbery
ONE (1) DAY to TEN (10) YEARS of prision mayor and to and theft." Evidently, the accessory in the crimes of
indemnify Rosita Lim the value of the stolen merchandise robbery and theft could be prosecuted as such under the
purchased by him in the sum of P18,000.00. Revised Penal Code or under P.D. No. 1612. However, in
the latter case, the accused ceases to be a mere accessory
Costs against the accused. but becomes a principal in the crime of fencing. Otherwise
stated, the crimes of robbery and theft, on the one hand,
SO ORDERED. and fencing, on the other, are separate and distinct
offenses.8 The State may thus choose to prosecute him
Manila, Philippines, August 5, 1996.
either under the Revised Penal Code or P.D. No. 1612,
(s/t) ZENAIDA R. DAGUNA although the preference for the latter would seem
Judge inevitable considering that fencing is malum prohibitum,
and P.D. No. 1612 creates a presumption of fencing9 and
Petitioner appealed to the Court of Appeals. prescribes a higher penalty based on the value of the
After due proceedings, on January 29, 1998, the Courts of
Appeals rendered decision finding no error in judgment In Dizon-Pamintuan vs. People of the Philippines, we set
appealed from, and affirming the same in toto. out the essential elements of the crime of fencing as
In due time, petitioner filed with the Court of Appeals a
motion for reconsideration; however, on June 16, 1998, 1. A crime of robbery or theft has been committed;
the Court of Appeals denied the motion.
2. The accused, who is not a principal or accomplice in the
Hence, this petition. commission of the crime of robbery or theft, buys,
receives, possesses, keeps, acquires, conceals, sells or
The issue raised is whether or not the prosecution has
disposes, or buys and sells, or in any manner deals in any
successfully established the elements of fencing as against
article, item, object or anything of value, which has been
derived from the proceeds of the said crime;
We resolve the issue in favor of petitioner.
3. The accused knows or should have known that the said
"Fencing, as defined in Section 2 of P.D. No. 1612 is "the article, item, object or anything of value has been derived
act of any person who, with intent to gain for himself or from the proceeds of the crime of robbery or theft; and
for another, shall buy, receive, possess, keep, acquire,
4. There is on the part of the accused, intent to gain for
conceal, sell or dispose of, or shall buy and sell, or in any
himself or for another.11
manner deal in any article, item, object or anything of
value which he knows, or should be known to him, to have Consequently, "the prosecution must prove the guilt of the
been derived from the proceeds of the crime of robbery or accused by establishing the existence of all the elements of
theft."3 the crime charged."12
"Robbery is the taking of personal property belonging to Short of evidence establishing beyond reasonable doubt
another, with intent to gain, by means of violence against the existence of the essential elements of fencing, there
or intimidation of any person, or using force upon things."4 can be no conviction for such offense.13 "It is an ancient
principle of our penal system that no one shall be found
The crime of theft is committed if the taking is without
guilty of crime except upon proof beyond reasonable
violence against or intimidation of persons nor force upon
doubt (Perez vs. Sandiganbayan, 180 SCRA 9)."14
In this case, what was the evidence of the commission of
"The law on fencing does not require the accused to have
theft independently of fencing?
participated in the criminal design to commit, or to have
been in any wise involved in the commission of, the crime Complainant Rosita Lim testified that she lost certain items
of robbery or theft."6 and Manuelito Mendez confessed that he stole those
items and sold them to the accused. However, Rosita Lim
Before the enactment of P.D. No. 1612 in 1979, the fence
never reported the theft or even loss to the police. She
could only be prosecuted as an accessory after the fact of
admitted that after Manuelito Mendez, her former
robbery or theft, as the term is defined in Article 19 of the
employee, confessed to the unlawful taking of the items,
she forgave him, and did not prosecute him. Theft is a would ascertain the fact in performance of his duty to
public crime. It can be prosecuted de oficio, or even another or would govern his conduct upon assumption
without a private complainant, but it cannot be without a that such fact exists. Knowledge refers to a mental state of
victim. As complainant Rosita Lim reported no loss, we awareness about a fact. Since the court cannot penetrate
cannot hold for certain that there was committed a crime the mind of an accused and state with certainty what is
of theft. Thus, the first element of the crime of fencing is contained therein, it must determine such knowledge with
absent, that is, crime of robbery or theft has been care from the overt acts of that person. And given two
committed. equally plausible states of cognition or mental awareness,
the court should choose the one which sustains the
There was no sufficient proof of the unlawful taking of constitutional presumption of innocence."23
another's property. True, witness Mendez admitted in an
extra-judicial confession that he sold the boat parts he had Without petitioner knowing that he acquired stolen
pilfered from complainant to petitioner. However, an articles, he can not be guilty of "fencing".24
admission or confession acknowledging guilt of an offense
may be given in evidence only against the person Consequently, the prosecution has failed to establish the
admitting or confessing.15 Even on this, if given extra- essential elements of fencing, and thus petitioner is
judicially, the confessant must have the assistance of entitled to an acquittal.
counsel; otherwise, the admission would be inadmissible WHEREFORE, the Court REVERSES and SETS ASIDE the
in evidence against the person so admitting.16 Here, the
decision of the Court of Appeals in CA-G.R. C.R. No. 20059
extra-judicial confession of witness Mendez was not given and hereby ACQUITS petitioner of the offense charged in
with the assistance of counsel, hence, inadmissible against
Criminal Case No. 92-108222 of the Regional Trial Court,
the witness. Neither may such extra-judicial confession be
considered evidence against accused.17 There must be
corroboration by evidence of corpus delicti to sustain a Costs de oficio.
finding of guilt.18 Corpus delicti means the "body or
substance of the crime, and, in its primary sense, refers to SO ORDERED.
the fact that the crime has been actually committed."19The
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ.,
"essential elements of theft are (1) the taking of personal
property; (2) the property belongs to another; (3) the
taking away was done with intent of gain; (4) the taking
away was done without the consent of the owner; and (5)
the taking away is accomplished without violence or
intimidation against persons or force upon things (U.S. vs.
De Vera, 43 Phil. 1000)."20 In theft, corpus delicti has two
elements, namely: (1) that the property was lost by the
owner, and (2) that it was lost by felonious taking.21 In this
case, the theft was not proved because complainant Rosita
Lim did not complain to the public authorities of the
felonious taking of her property. She sought out her
former employee Manuelito Mendez, who confessed that
he stole certain articles from the warehouse of the
complainant and sold them to petitioner. Such confession
is insufficient to convict, without evidence of corpus

What is more, there was no showing at all that the

accused knew or should have known that the very stolen
articles were the ones sold him. "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. 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.
On the other hand, the words "should know" denote the
fact that a person of reasonable prudence and intelligence