ROBERT P. WA-ACON, petitioner vs. Form 74-A of the Cash and Accounts of accused Robert P.
Wa-
PEOPLE OF THE PHILIPPINES, respondent
G.R. No. 164575 December 6, 2006
The Case
This Petition for Review on Certiorari, under Rule 45 of the Rules
of Court, seeks the reversal of the April 22, 2004 Decision1 of the
Sandiganbayan convicting petitioner Robert P. Wa-acon of
Malversation under Article 217 of the Revised Penal Code for
misappropriating PhP 92,199.20, which forms part of his
accountabilities as Special Collecting Officer of the National Food
Authority (NFA); and the July 23, 2004 Resolution2 of said graft
court denying Wa-acon's plea for reconsideration in Criminal Case
No. 14375.
The Facts
The information against the accused Wa-acon reads as follows:
That on about the period from July 19, 1979 to September 28,
1981, in the City of Manila, Philippines and within the jurisdiction
of this Honorable Court, accused Robert P. Wa-acon, a public
officer, being a Special Collecting Officer, National Food
Authority (NFA) and stationed at Canonigo, Paco, Manila and as
such was accountable and responsible of rice stocks and empty
sacks for which he received and entrusted to him, by reason of his
official position, did then and there willfully, unlawfully and
feloniously, with grave abuse of confidence, misappropriate,
misapply, embezzle and convert to his own personal use and
benefit the aforesaid stocks of rice and empty sacks with a total
aggregate money value of P114,303.00, to the damage and
prejudice of the government in the aforementioned amount.
CONTRARY TO LAW.
The facts of the case as found by the Sandiganbayan are:
On the period from July 19, 1979 to September 28, 1981, accused
Robert P. Wa-acon was a Special Collecting Officer of the National
Food Authority (NFA) and was assigned at the Kadiwa Center at
Moriones, Tondo, Manila. One of his duties was to receive grains,
consisting of rice and mongo, which shall then be sold to the
public on retail. The proceeds of the sale of the grains shall then be
collected by the same accused.
On September 28, 1981, by virtue of a Travel Order, a team of
Auditors from the Commission of Audit, composed of Dionisio A.
Nillo, as team leader, Mercedes Punzalan, Audit Examiner II,
Herminia Gonzales, Audit Examiner II and Raquel Cruz, Clerk II,
as members, conducted an examination of the accountabilities of
various Special Collecting Officers of the NFA, one of whom was
accused Robert P. Wa-acon. The said examination was conducted
at the Office of the Regional Auditor, NFA Metro Manila Office at
Paco, Manila. In that office, the audit team asked the presence of
accused Robert P. Wa-acon by virtue of a demand letter dated
September 1981, demanding the latter to produce cash, cash items,
stocks and empty sacks and other pertinent papers. As testified by
Prosecution witness Dionisio A. Nillo, accused Robert P. Wa-acon
told the audit team that "he has no cash on hand at the time
pertaining to his accountability as Special Collecting Officer.
Hence, it was indicated in the Cash Count Sheet that there was no
cash counted during the cash examination.
Based on the examination conducted on the various Warehouse
Stock Issues, Empty Sacks Receipts, Official Receipts submitted
and the Certificate of Inventory of Stocks and Empty Sacks dated
September 18, 1981, containing the signature of accused Robert P.
Wa-acon and witnessed by Virgilio Cacanendin, Special
Investigator, Manolito Diaz, Bookkeeper, Louie Pastofide, Proceso
A. Saavedra, Audit Examiner II and Gloria T. Reyes, Audit
Examiner I, the audit team rendered a Report of Examination,
acon. All of the aforementioned documents were submitted by
Proceso Saavedra, a resident Audit Examiner of the NFA Metro
Manila Office, Paco, Manila, to the Audit team headed by Dionisio
A. Nillo. In connection with the Audit conducted, the Audit Team
prepared the following Schedules: Schedule 1: Statement of Rice
received by Robert A. Wa-acon, Schedule 1-A: Statement of
Rice/mongo Received by Robert P. Wa-acon, Schedules 2:
Statement of Remittances of Proceeds from Sales of Robert P. Wa-
acon, Schedule 3: Statement of Refunds made by Robert P. Wa-
acon, Schedule I: Statement of Empty Sacks Returned by Robert P.
Wa-acon, and Summary of Empty Sacks Accountability of Robert
P. Wa-acon and the Revised Summary of Cash Examination of
Robert P. Wa-acon.
The Report of the Examination of the Cash and Accountabilities of
accused Robert P. Wa-acon shows that the latter incurred a cash
shortage of One Hundred Fourteen Thousand Three Hundred Three
Pesos (P114,303.00). In the Revised Summary of the Cash
Examination of accused Robert P. Wa-acon, the cash shortage was
changed to One Hundred Two Thousand and One Hundred Ninety
Nine Pesos and Twenty Centavos (P102,199.20) after deducting
the cost of sixty (60) bags of regular milled rice value of Six
Thousand Nine Hundred (P6,900.00) and the monetary value of
the empty sacks returned by accused Robert P. Wa-acon, which is
Five Thousand Two Hundred Three Pesos and Eighty Centavos
(P5,203.80). However, accused Robert P. Wa-acon made a refund
of the amount of Ten Thousand Pesos (P10,000.00). Therefore, the
total shortage amount[ed] to Ninety Two Thousand One Hundred
Ninety Nine Pesos and Twenty Centavos (P92,199.20).4
During the trial before the Sandiganbayan, petitioner denied that he
misapplied and converted for his personal use the stocks of rice
and empty sacks as he had been faithfully remitting all the
proceeds of the rice he sold to consumers.5
Petitioner also contended that the shortage discovered by the Audit
Team may be attributed to the discrepancy in the actual weight of
the rice actually delivered to him and that of the weight reflected in
the receipts. In other words, he claimed that the rice delivered to
him weighed less than that for which he signed. He alleged that he
discovered the shortage of five (5) to ten (10) kilos per sack only
upon delivery of the rice to the station/outlet. Petitioner explained
that he could not check the weight of the sacks delivered to him as
the weighing scale in their office had a maximum capacity of only
twelve (12) kilograms. Petitioner claimed that he informed his
superiors of such shortage verbally, but was unheeded.6
Petitioner further claimed that the only reason he signed for the
sacks of rice, despite the shortage, was because he was told that he
would not be paid his salary if he would not sign, added to the fact
that he was then hungry—all of which prompted Wa-acon to sign
the audit report of the Audit Team.7 As to the missing empty sacks,
petitioner argued that those were in the custody of the delivery
man who had a logbook where Special Collecting Officers sign as
proof that the delivery man had taken the sacks.8
The Sandiganbayan Ruling
Citing the presumption under the last paragraph of Article 217 of
the Revised Penal Code that "the failure of the public officer to
have duly forthcoming any public funds which he is chargeable
upon demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to personal
use" and the inability of accused Wa-acon to "rebut the
presumption that he had put the rice stocks and the empty sacks to
personal use," the Sandiganbayan found him guilty of malversation
of public funds under the Revised Penal Code. In the graft court's
April 22, 2004 Decision, the dispositive portion reads:
WHEREFORE, judgment is hereby rendered finding the accused
Robert P. Wa-acon, GUILTY beyond reasonable doubt of the crime
of Malversation of Public Funds as defined in and penalized by
Article 217 of the Revised Penal Code and, there being no
modifying circumstance, is hereby sentenced to suffer an
indeterminate penalty of from TWELVE (12) YEARS and ONE
(1) DAY of reclusion temporal minimum, as the minimum to
SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of reclusion temporal maximum, as the maximum and to
suffer perpetual special disqualification. The accused Robert P.
Wa-acon is likewise ordered to pay a FINE equal to the amount of
the funds malversed, which is Ninety Two Thousand One Hundred
Ninety Nine Pesos and Twenty Centavos (P 92,199.20) and to
indemnify the National Food Authority (NFA) the amount of
Ninety Two Thousand One Hundred Ninety Nine Pesos and
Twenty Centavos (P92,199.20) with interest thereon.
SO ORDERED.
Correspondingly, petitioner filed his May 20, 2004 Motion for
Reconsideration10 of the Decision, reiterating his defenses raised
during the trial.
On July 23, 2004, the Sandiganbayan issued the assailed
Resolution denying petitioner's Motion for Reconsideration on the
ground that accused Wa-acon raised no new substantial issues and
cogent reasons to justify the reversal of the April 22, 2004
Decision.
Thus, Wa-acon filed the instant petition.
The Court's Ruling
Petitioner Wa-acon presented a lone issue to be resolved: his guilt
was not proven beyond reasonable doubt; thus, the assailed
Decision and Resolution convicting him of malversation must be
reversed.
In seeking the recall of his conviction, accused petitioner asserts
that the unremitted amounts for the rice stocks and the money
allegedly gained from the empty sacks were not used for his
personal use and therefore, the fourth element of malversation—
that the accused appropriated, took, or misappropriated public
funds or property for which he was accountable—was not proven.
According to petitioner, while he might have violated certain
auditing rules and regulations, this violation is not tantamount to
malversation. He leans on the rulings in Madarang v.
Sandiganbayan,11 and Agullo v. Sandiganbayan12 that "it is
essential to prove that there had been a conversion of public fund
to personal use" and that "conversion must be affirmatively
proved"; otherwise, the presumption is "deemed never to have
existed at all."
Article 217 of the Revised Penal Code whereas provides:
Malversation of public funds or property. – Presumption of
malversation. – Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence, shall permit any
other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property x x x
xxxx
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by
any duly authorized officer shall be prima facie evidence that he
has put such missing funds or property to personal uses (emphasis
supplied).
The elements to constitute malversation under Article 217 of the
Revised Penal Code are as follows:
The elements common to all acts of malversation – under Article
217 are: (a) that the offender be a public officer; (b) that he had
custody or control of funds or property by reason of the duties of
his office; (c) these funds were public funds or property for which
he was accountable; and (d) that he appropriated, took,
misappropriated or consented or through abandonment or
negligence, permitted another person to take them.13
Accused petitioner has conceded that the first three (3) elements of
the crime of malversation exist but asseverates that the fourth
element—that he appropriated, took, or misappropriated the public
funds for which he was made accountable by the Commission on
Audit (COA) to his own personal use––was not proven beyond
reasonable doubt.
Unfortunately, petitioner's postulation has no legal mooring.
Article 217, as amended by Republic Act 1060, no longer requires
proof by the State that the accused actually appropriated, took, or
misappropriated public funds or property. Instead, a presumption,
though disputable and rebuttable, was installed that upon demand
by any duly authorized officer, the failure of a public officer to
have duly forthcoming any public funds or property— with which
said officer is accountable—should be prima facie evidence that he
had put such missing funds or properties to personal use. When
these circumstances are present, a "presumption of law" arises that
there was malversation of public funds or properties as decreed by
Article 217. A "presumption of law" is sanctioned by a statute
prescribing that "a certain inference must be made whenever facts
appear which furnish the basis of the interference." This is to be set
apart from a "presumption of fact" which is a "[conclusion] drawn
from particular circumstances, the connection between them and
the sought for fact having received such a sanction in experience as
to have become recognized as justifying the assumption."14 When
there is a presumption of law, the onus probandi (burden of proof),
generally imposed upon the State, is now shifted to the party
against whom the interference is made to adduce satisfactory
evidence to rebut the presumption and hence, to demolish the
prima facie case.
After the government auditors discovered the shortage and
demanded an explanation, petitioner Wa-acon was not able to
make money readily available,15 immediately refund the
shortage,16 or explain satisfactorily the cash deficit.17 These facts
or circumstances constitute prima facie evidence that he converted
such funds to his personal use.
Prima facie evidence is defined as:
Evidence good and sufficient on its face. Such evidence as, in the
judgment of the law, is sufficient to establish a given fact, or the
group or chain of facts constituting the party's claim or defense,
and which if not rebutted or contradicted, will remain sufficient.
Evidence which, if unexplained or uncontradicted, is sufficient to
sustain a judgment in favor of the issue it supports, but which may
be contradicted by other evidence (emphasis supplied).18
Neither can accused petitioner claim that such presumption under
Article 217 violates the constitutional guarantee of presumption of
innocence for "the establishment of a prima facie case does not
take away the presumption of innocence which may x x x be such
as to rebut and control it."19 Such prima facie evidence, if
unexplained or uncontradicted, "can counterbalance the
presumption of innocence to warrant a conviction."20
Since the facts adduced by the State brought about a prima facie
evidence which is considered sufficient to sustain petitioner's
conviction under Article 217, it is incumbent upon petitioner Wa-
acon to destroy the presumption of law.
In his quest to exculpate himself from the legal assumption of
criminal liability for the missing funds, he insisted that: 1) the
sacks of rice were less than that declared in the receipts when they
were delivered to him; 2) he sold the rice at the older and lower
prices, as he was not informed of changes in the prices of the rice;
and 3) the empty sacks of rice were in the possession of the
delivery men. However, petitioner merely settled for his bare
uncorroborated testimony during the trial before the
Sandiganbayan. He never bothered to adduce other pieces of
evidence to fortify his defenses. Petitioner did not produce the
delivery men whom he claims had in their possession the empty
sacks or any acknowledgement receipt for said bags. Moreover,
petitioner did not bring forward his co-workers to attest to and
confirm the practice of, and substantiate petitioner's story of
receiving sacks of rice without weighing them and that the bags
received weighed less than that reflected in the receipt. The
established rule is that "[d]enials, if unsubstantiated by clear and
convincing evidence, are deemed negative and self-serving
evidence unworthy of credence."21 The court a quo is correct in
holding that as compared to credible witnesses like the COA
auditors who testified on affirmative matters, the self-serving
negative testimony of accused petitioner Wa-acon has no
substantial weight or credit.22
"Negative testimony" is made clear as testimony that a fact did not
exist, that a thing was not done, that no one did not hear––is
admissible and, in the absence of opposing testimony, is usually
regarded as of sufficient probative force to sustain a verdict. It is
however, a long recognized general rule of evidence that all other
things being equal, positive evidence is stronger than negative
evidence.
Since Wa-acon lamentably fell short of adducing the desired
quantum of evidence, his weak and unconvincing testimony
standing alone did not overthrow the presumption that he
misappropriated public funds.
As a last ditch effort to exonerate himself, petitioner anchored his
defense on Madarang24 and Agullo,25 where public employees
charged of malversation were cleared of criminal liability.
In these two (2) cases cited by petitioner, we elucidated the legal
presumption of assumed criminal liability for accountable funds
under the last paragraph of Article 217 of the Revised Penal Code.
In Madarang, we explained:
Concededly, the first three elements are present in the case at bar.
Lacking any evidence, however, of shortage, or taking,
appropriation, or conversion by petitioner or loss of public funds,
there is no malversation (Narciso vs. Sandiganbayan, 229 SCRA
229 [1994]). True, the law creates a presumption that the mere
failure of an accountable officer to produce public funds which
have come into his hand on demand by an officer duly authorized
to examine his accounts is prima facie evidence of conversion. The
presumption is, of course, rebuttable. Accordingly, if petitioner is
able to present adequate evidence that can nullify any likelihood
that he had put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is
effectively negated.26
In Agullo, we amplified that:
Thus, in a string of categorical pronouncements, this Court has
consistently and emphatically ruled that the presumption of
conversion incarnated in Article 217, paragraph (4) of the Revised
Penal Code is — by its very nature — rebuttable. To put it
differently, the presumption under the law is not conclusive but
disputable by satisfactory evidence to the effect that the accused
did not utilize the public funds or property for his personal use,
gain or benefit.
Accordingly, if the accused is able to present adequate evidence
that can nullify any likelihood that he had put the funds or property
to personal use, then that presumption would be at an end and the
prima facie case is effectively negated. This Court has repeatedly
said that when the absence of funds is not due to the personal use
thereof by the accused, the presumption is completely destroyed; in
fact, the presumption is never deemed to have existed at all.27
Unfortunately, petitioner's vaunted reliance on Madarang and
Agullo does not provide legal relief as the facts in these cases are
not on all fours with his case. The accused parties in said cases
were able to produce satisfactory evidence ample enough to prove
that the missing funds were not converted to their personal uses
and thus, the legal presumption was effectively negated.
In Madarang, the accused, based on the COA audit report, was
charged with malversation of PhP 20,700.00 representing advance
rental payments for the lease of real property owned by the City of
Cebu for which he was responsible as a barangay captain. When
the accused was asked to account for such missing funds, he
introduced convincing evidence that the funds were utilized by the
barangay for its projects and for the benefit of his constituents,
namely: for materials for the water system of the barangay hall,
barangay police uniforms, and payment for medicine. Therefore,
the legal presumption was successfully overturned.
Likewise, in Agullo, the accused, who was the disbursing officer of
then Ministry of Public Works and Highways, Regional Office No.
VIII, Candahug, Palo, Leyte, was charged based on audit, with
malversation of PhP 26,404.26 representing the salaries of the
personnel in her office. The accused admitted that the funds were
lost; however, she was able to prove that she suffered a stroke
while going to her office. This was corroborated by the barangay
captain of the place where she suffered a stroke, as well as medical
certificates to prove the illness. She was acquitted because the loss
of funds was not due to malversation.
In contrast, petitioner anchored his defenses solely on his own bare
testimony unsubstantiated by other parol, documentary, or object
evidence to prop up such self-serving allegations. Without doubt,
the rulings in Madarang and Agullo cannot be considered
precedents to the case at bar because the facts in said cases are not
the same or substantially similar to petitioner Wa-acon's situation.
Without any strong and convincing proof to bring down the
disputable presumption of law, the Court is left with no other
option but to sustain petitioner's conviction.
WHEREFORE, We DENY the petition and the assailed April 22,
2004 Decision and the July 23, 2004 Resolution of the
Sandiganbayan in Criminal Case No. 14375 are AFFIRMED IN
TOTO.
No pronouncement as to costs.
SO ORDERED.
Quisumbing, J., Chairperson, Carpio, Carpio Morales, and Tinga,
JJ., concur.
GAUDIOSO C. LLAMOSO, HILARIO A. GUIGUE PROTACIO
U. JUMAMOY, JR., NICANOR ANINIPO and ALFREDO
CAGAIS petitioners vs. SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents
G.R. No. L-63408 & 64026 August 7, 1985
AQUINO, J.:
This case is about a false entry in the payroll for March 16 to 31,
1981 of 12 laborers who worked in the improvement of Sta. Rosa
Street, municipality of E. Villanueva, Siquijor. The anomaly
involves the sum of P 130 as the wages for two weeks of one
laborer at P 13 a day. The entries for the 11 laborers were not
falsified.
Gaudioso C. Llamoso was the assistant highway engineer and
officer-in-charge of the district engineer's office. Hilario A.
Guigue, 56, a senior civil engineer, was assigned to Project CRI-
80-0704 which undertook the repair of drainage canals and
sidewalks at Sta. Rosa Street E. Villanueva. Protacio U. Jumamoy,
Jr., 33, was also a civil engineer who had been in the service since
1974.
Llamoso, now 57, was assigned as district engineer on February
10, 1981. Alfredo Cagais, 25, worked as caretaker of the district
engineer's cottage and acted as utility man and messenger. On
March 10, 1981 Cagais complained that he had not been paid his
wages at thirteen pesos a day or P 130 for the quincena of February
16 to 27, 1981, a period of ten working days.
He was on the verge of crying because he was the sole
breadwinner of vs. family. His mother was sickly. Llamoso called
Guigue and Jumamoy to explain why Cagais had not been paid his
wages. They said that Cagais was listed in the payroll of the Pisong
Bridge project. Apparently, he could not be included in the payroll
for personnel of the district engineer's office. Llamoso asked
Guigue and Jumamoy to find a "legitimate way" by which Cagais
could be paid his wages as caretaker (11 tsn November 17, 1982).
Jumamoy intended to consult the auditor as to how Cagais could
be paid vs. wages. He was not able to see the auditor. Instead, he
talked with Gertrudes Quilat an auditing aide who suggested that a
person acting as a "stand-in" or substitute for Cagais, might be
included in the payroll but Jumamoy should consult a lawyer about
that arrangement (14).
Jumamoy discussed the matter with Mayor Alfredo Orquillas, Sr.
of the municipality of E. Villanueva who used to be a municipal
judge. Orquillas advised that a "stand-in" was permissible provided
it was done in good faith and without the slightest intention of
defrauding the government (15). Jumamoy then asked Cagais who
could act as his "stand-in". Cagais suggested Nicanor Aninipo, 18,
who was allegedly jobless (17).
So, on March 12, 1981, Jumamoy instructed his clerk to include
the name of Aninipo in the form or document known as "Authority
to Hire Casual Employees and Order to Work" for the project on
Sta. Rosa Street, municipality of E. Villanueva for the quincena of
March 16 to 31, 1981 (Exh. A and A-2). Jumamoy initialed the
inclusion of Aninipo's name in that form and gave it to his
immediate superior, Guigue, for approval (19). Guigue approved it.
Aninipo was also included in the "Time Book and Payroll" (Exh.
A) for that quincena of March 16 to 31, 1981 which listed 12
laborers, 11 of whom worked for 12 days. In the case of Aninipo,
the twelfth in the list, it was indicated that he worked for 10 days
only to correspond with the ten-day period for the quincena of
February 12 to 27, 1981 for which, as already noted, Cagais
worked in the district engineer's cottage (21- 22).
Aninipo was able to collect P 130 under that payroll for the project
on Sta. Rosa Street, E. Villanueva. He gave the amount to Cagais
because, as previously arranged, Aninipo was only a "stand-in" for
Cagais (22-23).
The pay master the sole prosecution witness, testified that at nine
o'clock in the morning of April 13, 1981 he paid Aninipo P 130 for
his supposed work in the Sta. Rosa Street project. Two hours later,
Aninipo wanted to collect P 156 for his actual work in the Bogo-
Licuan road, another project (Exh. B). The paymaster refused to
pay him again. That was how the false entry was discovered.
It should be clarified that before March 16, Aninipo was really
jobless. His first job was in the Bogo-Licuan project. But he was
not able to apprise Cagais before March 16 that he started working
in that project (62-63).
Jumamoy declared that the government was not defrauded because
Aninipo gave the P130 to Cagais for his work of ten days in the
district engineer's cottage but Aninipo was not able to collect P156
for his actual work in the Bogo-Licuan Road project (31-2).
The Sandiganbayan convicted Llamoso Guigue, Jumamoy, Cagais
and Aninipo as conspirators in the crime of falsification of public
documents by allegedly having made it appear in the time book,
payroll and authority to hire employees (Exh. A to A-2) that
Aninipo worker in the Sta. Rosa Street project when in fact he did
not work therein.
I t sentenced each of them to an indeterminate penalty of two
years, four months and one day of prision correccional as
minimum to eight years and one day of prision mayor as maximum
and to pay a fine of P2,000. They appealed.
We hold that the accused are not criminally liable because they had
no criminal intent. Making no concealment or evasion, they
admitted that there was a false entry. They acted in good faith (12-
13 tsn Nov. 16, 1982). They may be disciplined administratively
for the irregularity but their inclusion of ninipo in the payroll is
outside the pale of criminal law.
Apparently, the case was an isolated instance. It should not be
equated with the systematic and rampant practice in some
engineering districts of fabricating payrolls with fictitious laborers
working on fictitious projects resulting in the defraudation of the
government of considerable sums of money,
There is a ruling that the accused is not guilty of falsification in the
absence of proof that he maliciously perverted the truth with the
wrongful intent of injuring some third person (U.S. vs. Reyes, 1
Phil. 341, 343).
The instant case is similar to U.S. vs. Arceo, 17 Phil. 592, where
the accused was the foreman of carpenters hired by the City of
Manila to reconstruct the houses torn down for reasons of
sanitation and removed to the San Lazaro Estate. The city had
bound itself to reconstruct gratis said houses. The wife of the
accused had purchased from Severino Pelagio one of these houses,
including the right to have the house rebuilt at the city's expense.
The accused foreman reported that a carpenter named Castro
worked for the city when in truth he worked on the reconstruction
of the house which the accused had purchased. He was charged
with falsification,
It was held that he was not criminally liable. He believed in good
faith that the city was duty-bound to rebuild the house which his
wife had purchased from Pelagio and that there was nothing wrong
in charging against the city the time spent by Castro in rebuilding
that house, just as there was nothing wrong in charging against the
city and time spent by the other carpenters in rebuilding the other
houses removed under the same circumstances.
In the instant case, as in the Arceo case, it cannot be said that the
accused perverted the truth in including Aninipo in the payroll in
order to attain any felonious objective. Their honest motive was to
enable Cagais to receive his compensation which he needed very
badly.
The judgment of conviction is reversed and set aside. The accused
are acquitted with costs de oficio. A copy of this decision should be
furnished the Minister of Public Works and Highways for the
purpose of taking administrative action against the accused should
the facts warrant such action.
SO ORDERED.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment of acquittal. It is a judgment reached
with the mind and the heart that the five accused had no criminal
intent in making in good faith an admittedly false entry in the
payroll that enabled one of them, Alfredo Cagais, to be paid
promptly his just wages for ten days work (a total of P130.00 at
P13.00 per day), which he needed very badly for his family.
It reaffirms the doctrine of deference and non-disturbance on
appeal of the trial court's conclusions on matters of fact and
credibility of witnesses cannot rise above the constitutional
presumption of innocence which can only be overcome if the proof
of guilt is beyond reasonable doubt. The Court had stressed time
and again that "while the Court on appeal would normally not
disturb the findings of the trial court on the credibility of witnesses
in view of the latter's advantage of observing at first hand their
demeanor in giving their testimony, the Court has consistently held
that this rule of appreciation of evidence 'must bow to the superior
and immutable rule that the guilt of the accused must be proved
beyond reasonable doubt, because the law presumes that a
defendant is innocent and this presumption must prevail unless
overturned by competent and credible proof."
The now Chief Justice thus defined in an early ponencia the scope
of the constitutional presumption of innocence: "That is a right
safeguarded [the] appellants. Accusation is not, according to the
fundamental law, synonymous with guilt. It is incumbent on the
prosecution to demonstrate that culpability lies. Appellants were
not even called upon then to offer evidence on their behalf. Their
freedom is forfeit only if the requisite quantum of proof necessary
for conviction be in existence. Their guilt must be shown beyond
reasonable doubt. To such a standard, this Court has always been
committed. There is need, therefore, for the most careful scrutiny
of the testimony of the state, both oral and documentary,
independently of whatever defense is offered by the accused. Only
if the judge below and the appellate tribunal could arrive at a
conclusion that the crime had been committed precisely by the
person on trial under such an exacting test should the sentence be
one of conviction. It is thus required that every circumstance
favoring his innocence be duly taken into account. The proof
against him must survive the test of reasons the strongest suspicion
must not be permitted to sway judgment The conscience must be
satisfied that on the defendant could be laid the responsibility for
the offense charged, that not only did he perpetrate the act but that
it amounted to a crime. What is required then is moral certainty."
The Court's judgment justly sets aside respondent court's judgment
which, for the "magnificent" sum of P 130.00 duly earned by and
paid to the accused laborer Cagais thru a "stand-in" because of
various technical and bureaucratic requirements in government
projects, would have sentenced all five accused (Three engineers
and two laborers), notwithstanding "their honest motive" and non-
defraudation of the government of a single centavo, 3 to serve an
indeterminate penalty of 2 years, 4 months and 1 day of prision
correccional as minimum to 8 years and 1 day of prision mayor as
minimum and to pay a fine of P2,000.00. To paraphrase the late
President Manuel A. Roxas when he granted political amnesty after
the last World War II. their error was one of the heart and not of the
mind that would render them criminally liable.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment of acquittal. It is a judgment reached
with the mind and the heart that the five accused had no criminal
intent in making in good faith an admittedly false entry in the
payroll that enabled one of them, Alfredo Cagais, to be paid
promptly his just wages for ten days work (a total of P130.00 at
P13.00 per day), which he needed very badly for his family.
It reaffirms the doctrine of deference and non-disturbance on
appeal of the trial court's conclusions on matters of fact and
credibility of witnesses cannot rise above the constitutional
presumption of innocence which can only be overcome if the proof
of guilt is beyond reasonable doubt. The Court had stressed time
and again that "while the Court on appeal would normally not
disturb the findings of the trial court on the credibility of witnesses
in view of the latter's advantage of observing at first hand their
demeanor in giving their testimony, the Court has consistently held
that this rule of appreciation of evidence 'must bow to the superior
and immutable rule that the guilt of the accused must be proved
beyond reasonable doubt, because the law presumes that a
defendant is innocent and this presumption must prevail unless
overturned by competent and credible proof." 1
The now Chief Justice thus defined in an early ponencia the scope
of the constitutional presumption of innocence: "That is a right
safeguarded [the] appellants. Accusation is not, according to the
fundamental law, synonymous with guilt. It is incumbent on the
prosecution to demonstrate that culpability lies. Appellants were
not even called upon then to offer evidence on their behalf. Their
freedom is forfeit only if the requisite quantum of proof necessary
for conviction be in existence. Their guilt must be shown beyond
reasonable doubt. To such a standard, this Court has always been
committed. There is need, therefore, for the most careful scrutiny
of the testimony of the state, both oral and documentary,
independently of whatever defense is offered by the accused. Only
if the judge below and the appellate tribunal could arrive at a
conclusion that the crime had been committed precisely by the
person on trial under such an exacting test should the sentence be
one of conviction. It is thus required that every circumstance
favoring his innocence be duly taken into account. The proof
against him must survive the test of reasons the strongest suspicion
must not be permitted to sway judgment The conscience must be
satisfied that on the defendant could be laid the responsibility for
the offense charged, that not only did he perpetrate the act but that
it amounted to a crime. What is required then is moral certainty. "
The Court's judgment justly sets aside respondent court's judgment
which, for the "magnificent" sum of P 130.00 duly earned by and
paid to the accused laborer Cagais thru a "stand-in" because of
various technical and bureaucratic requirements in government
projects, would have sentenced all five accused (Three engineers
and two laborers), notwithstanding "their honest motive" and non-
defraudation of the government of a single centavo, 3 to serve an
indeterminate penalty of 2 years, 4 months and 1 day of prision
correccional as minimum to 8 years and 1 day of prision mayor as
minimum and to pay a fine of P2,000.00. To paraphrase the late
President Manuel A. Roxas when he granted political amnesty after
the last World War II. their error was one of the heart and not of the
mind that would render them criminally liable.
---
PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs.
PORFERIO M. PEPITO, accused-appellant.
G.R. Nos. 112761-65 February 3, 1997
PUNO, J.:
Accused-appellant PORFERIO PEPITO appeals from the Decision
of the trial court convicting him of Malversation of Public Funds
through Falsification of Official Documents on five (5) counts.
Appellant, as Acting Postmaster of Iligan City, was charged with
misappropriating government funds by manipulating his records
and making it appear that he paid a number of postal money orders
although no such payments were made. Appellant was found short
in his cash accounts, as follows: (a) P23,643.73 for October 1975;
1 (b) P11.07 for December 1975.2 (c) P7,283.59 for the month of
January 1976; 3 (d) P30,052.25 for April 1976, and;4 (e)
P42,302.97 for May 1976. 5
Except for the dates and amounts involved, appellant was similarly
charged in five (5) separate Informations6 as follows:
That sometime during the month of __________, in the City of
Iligan, Philippines, and within the jurisdiction of this Honorable
Court, the said accused Porferio Pepito, Acting Postmaster of
Iligan City, with official station thereat, and as such accountable
officer, responsible for funds collected and received by him by
reason of his position, did then and there willfully, unlawfully and
fraudulently and with grave abuse of confidence, misappropriate,
embezzle and take away government funds in his possession in the
amount __________ of accused employing deceit, false
manifestation and fraudulent misrepresentations, manipulated his
records to make it appear that on the month __________ of the
Money Order Paid by him was __________ although his payments
amounted only to __________ making untruthful statements in a
narration of facts and that by virtue of such falsification in his
record of payments, the said accused successfully appropriated and
converted to his own personal use and benefit the sum of
__________ to the damage and prejudice of the Bureau of Post,
Manila, Philippines, in the aforementioned amount of __________.
Contrary to and in violation of Article 217 and Article 171 of the
Revised Penal Code.
First, the facts. In a letter,7 dated August 5, 1976, CESAR L.
JUAN, Regional Director of the Bureau of Posts, Region X,
Cagayan de Oro City, requested the Office of the City Auditor,
Iligan City, to audit the accounts of appellant PORFERIO PEPITO,
Acting Postmaster of Iligan City. Earlier, an audit team from the
Office of Regional Director Juan uncovered certain anomalies
regarding appellant's postal money order transactions at the Iligan
City Post Office. However, due to lack of time, the team failed to
determine the exact figure involved in the anomaly. Hence, their
request for assistance from the City Auditor's Office. 8
Iligan City Auditor FRANCISCO APARECE immediately formed
an audit team composed of Assistant City Auditor HONORIO N.
PABLICO and Auditor ROMULO ORBE.9 They started their audit
on August 19, 1976 and concentrated on the postal money order
transactions of appellant. They examined the cash in appellant's
possession and. verified the records of the postal money orders
(PMOs), the payment of these checks, and all depository funds of
said post office in government banks and in the Bureau of Posts,
Manila, covering the period from July 1, 1975 to August 9, 1976.
10
Asst. Auditor Pablico outlined the procedure for payment of postal
money orders, thus: The postmaster pays the postal money order
(PMO) upon presentation to him. The PMO paid cards, evidencing
payment of the PMOs, are then kept by the postmaster as
custodian. The postmaster then prepares a list of the PMOs he paid
for a period of fifteen (15) days. Hence, in a month, the postmaster
prepares two (2) lists or records of payment: one for the first
fifteen days of the month, and another list for the next fifteen days.
The PMO paid cards and the lists are then sent to the central office
of the Bureau of Posts in Manila for safekeeping. A copy of each
list is sent to the Regional Office of the Bureau of Posts, another
copy is sent to the City Auditor's Office and the last copy is
retained by the Postmaster himself.
The audit team verified the total amount of PMO payments
appearing on the lists or records prepared by appellant. They
totalled the daily PMO payments of appellant and cross-checked
them with appellant's entry on the cash book. These reveal the total
money order payments of appellant for the month. After totalling
the PMO payments of the postmaster per month, the audit team
requested the Central Office of the Bureau of Posts in Manila,
through its regional office, to furnish them the PMO paid cards,
evidencing payments of the PMOs during the period covered by
their audit. 12
Upon receipt of the PMO paid cards, the audit team cross-checked
the paid cards with the record of the PMOs allegedly paid by
appellant. They discovered that some PMOs were listed as paid but
were not supported by paid cards. The audit team uncovered these
discrepancies for the months of October and December, 1975 and
for the months of January, April and May, all of 1976. Based on the
records, the total PMOs paid by appellant during the period
covered by the audit was P494,720.85, but only P250,090.60 was
supported by PMO paid cards. The balance of two hundred forty-
four thousand six hundred thirty pesos and twenty-five centavos
(P244,630.25) was disallowed in audit for lack of supporting
documents. Hence, the cash shortage in appellant's account. 13
Appellant asked the auditors to double-check their findings but the
audit team came out with the same result.
In a letter 14 dated February 25, 1977, the audit team informed
appellant of the shortage in his cash accounts. They demanded
from appellant the immediate restitution of the missing funds and
an explanation why no criminal and administrative sanctions
should be taken against him. 15 No action was taken by appellant
to restore and explain his shortage of funds. Hence, five (5)
criminal Informations for malversation of public funds through
falsification of official documents were filed against him.
After the prosecution formally offered its evidence and rested its
case on December 18, 1978, the continuation of the hearing for the
presentation of the defense evidence was suspended due to the
transfer of then Presiding Judge Leonardo I. Cruz to Angeles City.
It was only after two (2) years, or on August 13, 1982, that
continuation of the trial resumed for the presentation of the defense
evidence. However, on the scheduled date of hearing, appellant,
through counsel, filed a motion to suspend the trial 16 on the
ground that he has applied for and was conditionally granted an
amnesty under P.D. 1082 by the 11TH Amnesty Commission of
Marawi City, Lanao del Sur, for said cases. Appellant prayed that
pursuant to Section 6 of P.D. 1082, further proceedings in his cases
be held in abeyance pending final approval of his conditional
amnesty by the President of the Philippines.
The fiscal opposed 17 the motion on the ground that the
conditional amnesty of appellant was spurious for it was issued by
a person not duly authorized for the purpose.
Resolution of this motion was deferred for six (6) years with the
subsequent reorganization of the judiciary and the re-raffling of
appellant's cases. Finally, in an Order, 18 dated September 9, 1988,
appellant's motion to suspend the trial of the cases was set for
hearing by the new presiding Judge Tago M. Bantuas. However, on
the date set, appellant's counsel failed to appear. Judge Bantuas
continued with the hearing of appellant's motion and denied
appellant's motion to suspend the trial. The continuation of the
hearing of the cases was set on January 10, 1989. Upon receipt of
the Order and Notice of Hearing, appellant's counsel, Atty.
Dimnatang T. Saro, filed a motion to postpone the hearing due to
conflict of schedule. 19 Hearing was thus reset to February 7,
1989. 20
Again, a series of motions to defer the hearing was filed at
appellant's instance and granted by the trial court. It was only on
January 24, 1992 that the new presiding Judge Maximino Magno-
Libre issued an Order admitting the evidence offered by the
prosecution. 21 On July 14, 1992, the defense commenced to
adduce its evidence and presented appellant as its lone witness.
On the stand, appellant denied there was shortage in his cash
accounts. After he was informed of the missing funds, he asked the
audit team to re-examine the records for his cash on hand has
always tallied with his cashbook. His office had been subjected to
various regular audit examinations by different offices, namely: the
Bureau of Treasury, the District Postal Inspector, the Postal Audit
Examiners and the Iligan City Auditor's Office. None of these
offices found any irregularity in his accountabilities. He urged that
there must have been some error or inaccuracy in the conduct of
the audit. He further charged that the malversation cases were filed
against him for political reasons for the late Governor Arsenio
Quibranza had a grudge against his son-in-law. 22
Appellant admitted that when he was found short in his cash
accounts, he applied for amnesty under P.D. 1082. When he was
informed by then Presiding Judge Dalisay and Prosecutor Lagcao
that he would have to admit his guilt in his application for amnesty
since amnesty presupposes the commission of a crime, he still
proceeded with his application for his friends in Lanao del Sur
assured him that his amnesty would be immediately processed and
approved. His conditional amnesty has been granted but it is still
pending final approval by the President for allegedly there is
someone in Manila who is blocking the grant of his amnesty. 23
After trial, the court rendered judgment 24 on September 8, 1993
finding appellant guilty of the crime charged. The dispositive
portion reads:
WHEREFORE, in accordance with the provisions of Article(s)
217, 171, in relation to Article 48 of the Revised Penal Code, the
Court finds accused guilty on all the five (5) counts he is charged
(with) and is hereby sentenced, to wit:
1. As to Criminal Case No. 277, since the amount
misappropriated is P23,643.73, accused should be penalized
according to the penalty provided in Paragraph No. 4 of Article
217 of the Revised Penal Code which is reclusion temporal
maximum to reclusion perpetua. Since according to Article 48 of
the Revised Penal Code, the penalty for the most serious crime
shall be applied in its maximum period, accused is meted out a
penalty of reclusion perpetua.
2. As to Criminal Case No. 278, considering that the
amount misappropriated was P11.07, according to Article 48 of the
Revised Penal Code, the penalty for the most serious crime shall be
imposed in its maximum period, thus, accused should be meted out
the penalty prescribed in Article 171 and in applying the provisions
of the indeterminate sentence law, accused should be meted the
indeterminate prison terms of six (6) years prision correctional to
twelve (12) years prision mayor.
3. As to Criminal Case No. 274, since the amount
malversed was P7,283.79, accused should be penalized according
to Paragraph No. 3 of Article 217 of the Revised Penal Code and
should be meted out an indeterminate penalty of ten (10) years and
one (1) day of prision mayor to fourteen (14) years and eight (8)
months of reclusion temporal.
4. As to Criminal Case No. 275, considering that the
amount misappropriated is P30,052.20, the penalty imposed should
be akin to the penalty prescribed in Criminal Case No. 277
mentioned in Paragraph 1 hereof, which is reclusion perpetua; and
5. As to Criminal Case No. 276, considering that the
amount subject of malversation is P37,558.30, then the necessary
penalty of reclusion perpetua should also be meted out against
accused.
Finally, accused is also hereby ordered to pay the government the
total sum of P98,549.99, which is the aggregate government funds
actually misappropriated, for restitution in accordance with Article
104 of the Revised Penal Code.
SO ORDERED.
Hence this appeal where appellant contends that:
I. THE TRIAL COURT ERRED IN DENYING THE
ACCUSED-APPELLANT'S MOTION TO SUSPEND THE
PROCEEDINGS OF THE CASES PENDING FINAL ACTION
ON THE CONDITIONAL AMNESTY GRANTED TO THE
APPELLANT;
II THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE CRIMES OF
MALVERSATION OF PUBLIC FUNDS THRU
FALSIFICATION OF OFFICIAL DOCUMENTS; AND
III. THE TRIAL COURT ERRED IN FAILING TO
CONSIDER VOLUNTARY SURRENDER IN FAVOR OF THE
ACCUSED-APPELLANT.
First. Appellant charges that the trial court erred in denying
his motion to suspend the proceedings in these cases pursuant to
Section 6 of P.D. 1082. 25 Hence, the proceedings of the trial court
are null and void and the judgment of conviction against him
should be vacated.
We do not subscribe to appellant's contention. On the date
scheduled for hearing of his motion, appellant's counsel failed to
appear and substantiate the allegations in his motion. The trial
court proceeded with the hearing of the motion, found no merit
thereto and denied the same. Appellant's counsel received a copy
of the Order of denial and was notified of the continuation of the
hearing of said cases. Appellant did not challenge the correctness
of this ruling by way of a petition for certiorari and prohibition
with the Court of Appeals. 26 Instead, he proceeded to adduce
evidence in his defense. After more than fifteen (15) years of trial
of his cases, appellant cannot now impugn the Order of the court
denying his motion to suspend his prosecution. 27
Second. Appellant contends that there was no clear showing that
he misappropriated the missing funds. Allegedly, his office has
been regularly audited by different agencies and none has found
him short in his accountabilities. He insists on the inaccuracy of
the audit report of the City Auditor's Office which examined his
cash and accounts.
We find no merit in the contention. It is settled that in cases of
malversation of public funds, the mere failure of a public officer to
have duly forthcoming any public funds or property with which he
is chargeable, upon demand by any duly authorized officer, is
prima facie evidence that he has put such funds or property to
personal use. 28 An accountable officer may be convicted of
malversation even in the absence of direct proof of
misappropriation so long as there is evidence of shortage in his
accounts which he is unable to explain. 29 Indeed, to justify
conviction for malversation of public funds, the prosecution has
only to prove that the accused received public funds or property
and that he could not account for them or did not have them in his
possession and could not give a reasonable excuse for the
disappearance of the same. 30
In the case at bar, all the elements of malversation of public funds
are present, viz: (a) the offender is a public officer, (b) he had
custody or control of the funds or property by reason of the duties
of his office, (c) these funds or property were public funds or
property for which he was accountable, and (d) that he
appropriated, took, misappropriated or consented, or through
abandonment or negligence permitted another person to take them.
31 Appellant, as Acting Postmaster of Iligan City has custody of
the funds of his Office. A portion of these funds was used in the
payment of postal money orders (PMOs) presented to him. As
evidence of these payments, the Postmaster accomplishes the PMO
paid cards and makes a list of the PMOs he paid for a given period.
These lists and paid cards are then sent to the Central Office of the
Bureau of Post for safekeeping. An audit of the PMO transactions
of appellant, however, disclosed that some of his PMO payments
were not supported by PMO paid cards.
Appellant's assertion that the audit made by the Office of Iligan
City Auditor was inaccurate remains an unsubstantiated allegation.
Although appellant insisted on this alleged inaccuracy during the
trial, he cannot point to the specific procedure where the auditors
erred in examining his accountabilities. 32 Noticeably, appellant
did not present any document to show that the audit of other
government agencies covered also the PMO transactions of the
post office for the same period covered by the audit of the City
Auditor.
Appellant also faults the trial court for considering as an admission
of guilt his application for amnesty under P.D. 1082. Regardless of
this consideration, however, the totality of the prosecution
evidence has proved the guilt of appellant beyond reasonable
doubt. The testimonies of the auditors and the documentary
evidence adduced clearly proved appellant's shortage of funds and
his corresponding liability therefor as an accountable officer. The
testimonial and documentary evidence of the prosecution were not
successfully rebutted by the defense.
Finally, appellant contends that the trial court failed to consider in
his favor the mitigating circumstance of voluntary surrender.
Allegedly, he voluntarily surrendered to the court of justice and
posted bail for his provisional liberty before a warrant for his arrest
could be issued.
The rule is clear that for the mitigating circumstance of voluntary
surrender to be appreciated, it must be proven that the accused
freely placed himself at the disposal of law enforcing authorities.
The records confirm that appellant was arrested and detained by
the INP Station of Marawi City for the crimes charged upon the
issuance of the Order 33 for his arrest on February 9, 1978.
Appellant was only released from custody 34 upon the approval of
his bailbond on March 27, 1978. Under the circumstances,
appellant cannot be credited with the mitigating circumstance of
voluntary surrender.
IN VIEW WHEREOF, the Decision of the trial court convicting
appellant PORFERIO M. PEPITO for five (5) counts of
Malversation of Public Funds Through Falsification of Official
Documents is AFFIRMED. Costs against appellant
SO ORDERED.
Regalado, Romero, Mendoza and Torres, Jr., JJ., concur.
----
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs.
ULYSIS CLOPINO y VARGAS, accused-appellant.
G.R. No. 117322 May 21, 1998
MENDOZA, J.:
This is an appeal from a decision1 of the Regional Trial Court of
Virac, Catanduanes, finding accused-appellant guilty of rape and
sentencing him to suffer reclusion perpetua and to pay the
complainant Melody Quintal the sum of P50,000.00 as moral
damages.
The information against accused-appellant alleged —
That on or about the 16th day of February, 1992 at barangay Dugui
Too, municipality of Virac, province of Catanduanes, Philippines,
and within the jurisdiction of this Honorable Court, the above-
named accused willfully, unlawfully and feloniously with force,
violence and intimidation drag Melody Quintal to the forest and
did then and there lie and succeeded in having carnal knowledge
with her against her will and consent.
ALL ACTS CONTRARY TO LAW.
The evidence for the prosecution is as follows:
Melody Quintal was at the time material to this case a 16-year old
high school student. On February 16, 1992, between 12:30-1:30 in
the afternoon, she and her sister Jinky and cousin Beverly left
Barangay Dugui Too in Virac, Catanduanes to go to school at the
poblacion. Melody walked very fast, so much so that she was
ahead of her companions. At the bend of the road, her companions
lost sight of her. Beverly Beo claimed that they met a man wearing
dark blue short pants, a light blue t-shirt, and a mask. Without
warning, the man pushed them, causing them to roll down the
ravine. Fortunately, they did not fall to the bottom because of the
presence of ''bigaho" plants. When they looked at the man who
pushed them, they recognized him as accused-appellant. He ran in
the direction where Melody was going.
Beverly and Jinky climbed up the ravine and tried to look for
Melody but they could not find her. They found some of her
belongings strewn on the road. These were her wrist watch, bag
and umbrella. The strap of the bag was detached, while the handle
of her umbrella was broken. They called her name several times
but to no avail. They then went back to their barangay to report
that Melody was missing. They informed Melody's brother about
what happened. Then they went to Melody's mother who reported
the matter to the barangay authorities. A rescue team went to the
place where Melody was last seen.
Melody testified that at sitio Pagsangahan, she was surprised to
find accused-appellant behind her. Accused-appellant was wearing
blue shorts and a blue t-shirt. Although he had a mask on, Melody
recognized him just the same as they were neighbors. Melody
asked him about her sister and her companion, but instead of
answering her, accused-appellant asked her to kiss him first. Then,
accused-appellant held her by the arms. Melody said she shouted
for help but apparently no one heard her. When she tried to shout
again, accused-appellant tried to choke her and boxed her. The
victim fell down and the accused-appellant dragged her towards a
forested area uphill, 250 meters away from the road.
She was asked by the accused-appellant to undress. As she refused
to do so, the accused-appellant threatened to kill her. He then
boxed her again, causing her to fall down. Accused-appellant then
kissed her on the face and on the neck. Next, he removed her pants
and panties and dragged her further uphill about 250 meters away.
Accused-appellant asked her to lie down and as she refused to do
so, the accused-appellant again hit her, causing her to lie down.
Accused-appellant then removed his shorts and brief and went on
top of her. He kissed her and tried to insert his penis into her
vagina.
Melody testified that only about an inch of accused-appellant's
penis was able to penetrate her vagina. He asked if she was still a
virgin and upon being told that she was, accused-appellant inserted
his finger into her vagina, apparently to engage her in foreplay.
Then he again tried to put his penis into her vagina but, at that
point, they heard people coming.
The accused-appellant ordered Melody to get dressed and told her
to tell the people that he had saved her from someone who had
tried to molest her. When finally they were found, the accused-
appellant did all the talking. According to Leopoldo Gianan, a
barangay tanod who was in the search team, accused-appellant was
fixing his shorts while Melody was crying. When he asked Melody
about what happened, accused-appellant told him not to bother her.
Accused-appellant was holding Melody by the arm and did not
want to leave her side. Melody did not talk because she had been
threatened with harm by accused-appellant. But, once she reached
their house, Melody told her father what happened. Her parents
then reported the matter to the barangay authorities. Melody
(together with her father, her sister Jovita and Beverly Beo) and the
accused-appellant were taken to Camp Camacho, the Philippine
Constabulary Headquarters in Virac, Catanduanes. Melody was
examined by Dr. Cecilia Tanael of the Provincial Health Office at
about 8:20 p.m. that evening, February 16, 1992. She was found to
have suffered the following injuries:2
— Laceration of hymen, fresh (new) at 9 o'clock and 3
o'clock position
— (+) Whitish discharge at vaginal vault
— Admits one index finger snugly
— (+) Erythema at epigastric area
— (+) Abrasion 1 cm. each on ant. aspect, neck (both
sides)
Dr. Tanael indicated in her certificate the following:3
— Clothes (T-shirt and pants) with dirt at buttocks area
— Dirt particles (R) buttocks
LABORATORY REPORT
— NEGATIVE FOR SPERMATOZOA
She opined that it was possible that Melody had been raped.4
Only accused-appellant testified for the defense. Accused-appellant
claimed that on February 16, 1992, between 12:30 to 1:30 in the
afternoon, he saw Melody Quintal walking towards Ilawod. He
followed her until sitio Pagsangahan, where he embraced and
kissed her on the face, neck and breasts. He claimed that as she did
not resist, he took it as a challenge to his manhood to make love to
her. He put her on the ground, put his hand inside her pants and
caressed her in the sex organ. He denied that he used force, or that
he was able to put his penis into Melody's vagina. He insisted that
he only inserted his fingers into her vagina in an effort to arouse
her. He also denied that he pushed Melody's companions down a
ravine.
The trial court believed the prosecution's theory and found the
accused-appellant guilty of rape. Hence, the appeal.
First. The defense maintains that there is an inconsistency
between the sworn statement given by Melody to the PC on the
one hand, and her testimony in court on the other. The defense
cites the following portion of the sworn statement dated February
18, 1992 which she gave at Camp Francisco Camacho, Virac,
Catanduanes:5
15Q: Was his personal organ or his penis able to penetrate to
your vagina?
A: No, sir.
16Q: Why?
A: He tried it but it could not penetrate, he even asked me
if I am still a virgen [sic].
17Q: What else happened?
A: After answering his question that I am still a virgen
[sic], he told me that he will used his finger.
18Q: Were your vagina fingered by him?
A: Yes, sir.
In the complaint she filed with the Municipal Trial Court on the
same day, February 18, 1992, she stated —
. . . [H]is personal organ did not penetrate instead he used his
finger to guide his penis but ultimately did not succeed for reasons
of independent to his well [sic] and the timely arrival of the people
who were informed of the incident by her companions. . .6
However, it is asserted in Melody's testimony in the trial court that
about one inch of the penis of the accused-appellant was able to
penetrate into her vagina:7
VELASCO (Private Prosecutor)
Q After removing the short pants and brief, what did
Clopino do?
A When he was already mounted on me, he tried to force
his penis on my vagina, sir.
Q Did you feel the penis?
A Yes, sir.
Q Why can you say that the penis was being penetrated on
your vagina?
A Because I was looking at him when he was holding his
penis and trying to let it in my organ, sir.
xxx xxx xxx
Q Was the penis able to penetrate completely inside your
vagina?

A Yes, it was able to penetrate about an inch, sir.
The contention has no merit. The alleged inconsistency is more
apparent than real. It must not be forgotten that the victim was only
16 years old at the time of the rape, inexperienced in the ways of
the world. It is evident that what she meant by accused-appellant's
organ not being able to penetrate her vagina was that there was no
full penetration. But it is clear that accused-appellant did all he
could to have sexual intercourse with her. If he was not able to
have full penetration, it was because the victim was still a virgin.
According to Melody, accused-appellant went on top of her,
removed his brief and tried to insert his penis into her vagina.
Indeed, how would accused-appellant know his penis would not go
in unless he first tried to insert it into his victim's vagina? That was
all that was necessary to commit consummated rape. It would have
been a different story if there was no attempt at all to have sexual
intercourse.
Thus, in her February 18, 1992 complaint, she said:8
. . . by means of force, intimidation and threats ordered her to
undress herself and accused also removed his short pant and brief
and place himself over her body and does the sexual play to her
vagina but as a consequence in spite of his desire, his personal
organ did not penetrate instead he used his finger to guide his penis
but ultimately did not succeed for reasons of independent to his
well [sic] and the timely arrival of the people who were informed
of the incident by her companions. That all his acts is against the
will of the complainant who suffered injuries to her vagina and
some parts of her body as per Medico Legal Certificate hereto
attached to form part of this complaint.
In her sworn statement of February 18, 1992, she said:9
15Q: Was his personal organ or his penis able to penetrate to
your vagina?
A: No, sir.
16 Q: Why?
A: He tried it but it could not penetrate, he even asked me
if I am still a virgen [sic].
But more revealing than all these is the statement of Melody
during the preliminary examination held before MTC Judge
Honesto Morales on February 18, 1992, the same day the
complaint before the MTC and the sworn statement before the PC
were made. In her statement, she said:10
COURT:
Q And when you were now lying on the ground what did
he do?
A He [lay] on top of me and keep on kissing me.
Q What more?
A When his organ could not enter then he used his finger.
Q How did you know that his organ could not enter?
A He told me that because his organ could not enter so he
will use his finger.
Q By the way, what was the condition of his body when
he lied down on top of you?
A He has no clothes.
Q Not even pants or brief?
A When he [lay] on top of me he was wearing brief but he
removed it.
Q Did you feel his organ touching yours?
A Yes, sir.
Q And as you said you feel his organ touching your organ
also, did you feel that Ulysis tried to insert it?
A Yes, sir.
Q And that was the time you said that since it could not
enter he told you that he will use his finger?
A Yes, sir.
Q By the way, for how long was Ulysis on top of you?
A More or less two minutes.
She repeated this in her testimony in this case. She stated:11
VELASCO:
Q After removing the short pants and brief, what did
Clopino do?
A When he was already mounted on me, he tried to force
his penis on my vagina, sir.
Q Did you feel the penis?
A Yes, sir.
Q Why can you say that the penis was being penetrated on
your vagina?
A Because I was looking at him when he was holding his
penis and trying to let it in my organ, sir.
Q How about your thigh then when he was forcing his
penis to your vagina?
A At first he inserted his one thigh between my thigh and
then he was able to insert his other thigh between my thigh and he
was forcing his penis to enter my organ, sir.
Q About how many minutes in your estimate did he entail
in causing the penetration of his penis in your vagina?
A More than a minute, sir.
Q Was the penis able to penetrate completely inside your
vagina?
A Yes, it was able to penetrate about an inch, sir.
Q Because his penis, I am referring to the accused, was
not able to cause the penetration completely, what happened?
A When his penis was not able to penetrate completely, he
insert [sic] his finger in my organ sir.
It is thus clear that accused-appellant tried to insert his penis into
the victim's vagina. If it did not go the full length and accused-
appellant was not able to attain full penetration, it was not because
he did not try to have intercourse with her but because the victim,
being still a virgin, required stimulation. That was the reason
accused-appellant "fingered" her private part, apparently to arouse
her.
It is not necessary, in order to have rape, that accused-appellant
succeed in having full penetration. The slightest touching of the
lips of the female organ or of the labia of the pudendum constitutes
rape.12 Accused-appellant is certainly wrong when he states that
because his penis was not able to penetrate the vagina despite his
efforts to do so, the crime should only be either attempted rape or
acts of lasciviousness. As the Solicitor General rightly states, it can
be logically concluded that when the accused-appellant was trying
to insert his penis into the victim's vagina, his penis touched the
middle part of the complainant's vagina and penetrated the labia of
the pudendum.13 It is impossible for the penis of the accused-
appellant not to touch the labia of the pudendum in trying to
penetrate her. As Melody narrated at the preliminary examination
conducted on February 18, 1992:14
COURT:
Q Did you feel his organ touching yours?
A Yes, sir.
Q And as you said you feel his organ touching your organ
also, did you feel that Ulysis tried to insert it?
A Yes, sir.
It must not have been an easy thing for Melody to tell in great
detail what happened to her. The inconsistencies in her testimonies
are understandable. More importantly, during her cross-
examination, Melody was able to explain satisfactorily why she
knew that the accused-appellant was able to put about an inch of
his penis into her vagina:15
CONCEPCION: (Defense Lawyer)
Q Now, why were you able to know that, did you see the
actual penetration?
A While he was doing that to me I could feel and I look
what he was doing to me, sir.
Q Is it not that the man was on top of you, why were you
able to see?
A While he was doing that to me, he was not mounted on
me. His both legs were between my legs, and his legs were
positioned as if just squatting, sir.
Q So, his two legs were not touching your legs at that
time?
A Yes, sir, it was, because his thighs were inside my both
thighs.
Moreover, under Rule 132, §13 of the Revised Rules on Evidence,
in order to impeach a witness by evidence of prior inconsistent
statement, the statement must be related to him and the
circumstances of its execution stated. Then he must be asked
whether he made such inconsistent statement. In this case, no
attempt was made to impeach Melody's testimony in court. She
was not shown the complaint of February 18, 1992 and the sworn
statement of the same date nor was she asked to explain any
discrepancy, instead, what she was asked was the following
question:16
CONCEPCION
Q And according to you the man was not able to succeed
in having his penis penetrate your own organ?
VELASCO
— Misleading.
COURT
— Sustained, because the witness mentioned that it was
about to penetrate one (1) inch.
The question was misleading because she never really said that
accused-appellant did not succeed in penetrating her. The trial
court properly sustained the objection of the prosecution.
We have reviewed the records, and we found no reason why
Melody should concoct a story as damaging to her reputation as
this, if it were not true that she was raped. We have held that when
the offended parties are young and immature girls from the ages of
twelve to sixteen, courts are inclined to lend credence to their
version of what transpired, considering not only their relative
vulnerability but also the shame and embarrassment to which they
would be exposed by court trial if the matter about which they
testified is not true.17
Second. Accused-appellant contends that Judge Nilo B. Barsaga
had no basis for saying that the testimony of Melody was given in
a straightforward manner and, therefore, was credible. He points
out that because Judge Barsaga did not try the case, another one,
Judge Eduardo Israel Tanguanco, having done so, the former did
not observe the witness' demeanor so as to be able to say that her
testimony was straightforward.
It may be that a judge who tried the case and had the opportunity to
observe the demeanor of witnesses has an advantage over another
who did not have such an opportunity. But such lack of opportunity
does not necessarily prevent him from determining from the
transcript of stenographic notes whether a witness was forthright
and frank. How often has this Court itself found the testimony of
witnesses to have been given in a straightforward manner on the
basis solely of the records of the case. For example, in People v.
Compedio,
Jr.,18 we said:
In the first assigned error, the accused-appellant attacks the
credibility of prosecution witness Trinidad Sabando. On this score,
the oft-repeated rule is that appellate courts will generally not
disturb the findings of the trial court, considering that the latter is
in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of
testifying during the trial. This case, however, falls under one of
the exceptions to the above rule, namely, where one judge heard
the testimony of the witnesses and another penned the decision;
hence, we are not precluded from making our assessment of the
probative merit and value of the testimony of the witnesses on the
basis of the transcripts of the stenographic notes thereof.19
After poring over Sabando's testimony, we find her to be a
trustworthy witness. Her narration of the events and observations
of what transpired before her were delivered in a direct, unaffected,
and convincing manner. She stuck to her story and was
uncompromising in regard thereto on cross-examination and on
questions from the court. We detect no indication of prevarication.
Indeed, there is no claim in this case that at any time in her
testimony Melody Quintal hedged or even hesitated or otherwise
indicated that she was withholding anything from the court. As
held in People v. Tuvilla,20
While the trial judge who presided over the trial of the case would
be in a better position to ascertain the truth or falsity of the
testimonies of the witnesses, it does not follow that a judge who
was not present during the trial cannot render a valid and just
decision. The full record was available to him. It is evident from
the knowledgeable and analytical decision he has written that he
thoroughly examined the testimonial and documentary evidence
before him and carefully assessed the credibility of the witnesses
with the seasoned perceptiveness he has developed as a trial
judge.21
Third. Accused-appellant's conviction is not based solely on
the victim's testimony, but on other evidence in the record as well.
Dr. Cecilia Tanael, who examined the victim on the day of the
incident, testified that the victim was probably raped, based,
among other things, on the lacerations which she found in the
victim's hymen. Dr. Tanael testified:22
VELASCO
Q Now, in your considered opinion doctora, could this
fresh laceration be caused by a half penetration of penis to the
vagina?
A Anything which can enter the vagina can cause
laceration, sir.
Q How about the penis?
A It could be, sir.
Q How about the finger?
A It could be sir, anything that could pass thru to the
vagina can cause laceration.
In addition, Dr. Tanael found whitish discharge in the vaginal vault
of the victim. Dr. Tanael said she could not rule out the possibility
that the discharge was seminal fluid coming from a male person.23
Although the discharge was found negative for spermatozoa, she
explained that this could only be because the amount of discharge
was not enough for spermatozoa to be present. Besides, the
absence of spermatozoa in the complainant's vagina does not
negate the commission of rape.24
Dr. Tanael's testimony also confirmed the victim's claim that she
was hit several times in the stomach because she refused to do
accused-appellant's bidding. As she testified:25
VELASCO
Q And this findings of your, erithma at epigastric area,
what is erithma [sic]?
A Erithma [sic] is redness, sir.
Q This epigastric area, what is this?
A The area below the externum, sir.
Q In your examination, you found reddish portion, could
it be possible that the reddish portion was caused by used of fist
blow?
A I [sic] can be caused bay [sic] any blunt force, sir.
Q Like fist?
A Yes, sir.
Earlier, Melody told the court how she had been boxed several
times by the accused-appellant to make her lie down:26
ATTY. VELASCO
Q Thereafter, what happened?
A After he boxed me I fell down because of the pain and
then he dragged me uphill, sir.
xxx xxx xxx
Q After you were dragged to a distance of 250 meters
from the road into the interior of the forest, what happened?
A When we reached there, he told me to remove my
pants. When I did not heed what he told me, he threatened me that
he would kill me and he kept on boxing me, sir.
Q What happened next?
A His boxing me caused me to fall, sir.
xxx xxx xxx
Q While you were brought there, I am referring to the
place wherein the second time you were dragged, what happened?
A He again told me to lie down, sir.
Q Did you lie down?
A No, sir.
Q Because you did not lie down, what happened?
A Because I did not lie down, he again boxed me on my
stomach, sir.
Q Because he boxed you in your stomach, what did you
do?
A His boxing me caused me again to lie down, sir.
Dr. Tanael also found abrasions in the neck and stomach,
indicating that Melody had a struggle with accused-appellant:27
VELASCO
Q This abrasion 1 cm. inch on anterior aspect, neck (both
sides), would you mind explaining it to the Court in a layman's
language?
A Abrasion is caused by friction by another surface in the
anterior aspect of the neck, below the buttocks. (Witness pointing
to her neck).
Q Is it possible doctora, that abrasion like this is caused
because of the struggle of the victim from assailant?
A Basing from my physical examination, it is possible,
because there is erithma at the epigastric area, and there is an
abrasion, sir.
Q Can this be caused by grip of hands?
A It is possible, sir.

There were other tell-tale marks of the use of violence against the
victim. Dr. Tanael noted that the clothes of Melody were dirty,
particularly at the buttocks. This evidence of the use of force and
violence belie the fantastic claim of accused-appellant that Melody
agreed to have a tryst with him.
Indeed, how could accused-appellant claim that Melody
voluntarily went with him when the two of them were not even
lovers? Accused-appellant was 32, married. Melody was only 16, a
high school student. It was unlikely they were lovers. On the
contrary, the fact that her personal effects, consisting of her bag,
her umbrella and her wrist watch were strewn on the ground and
that according to Beverly Beo the victim's lips and neck were
bruised and her clothes soiled attests to the resistance she offered
to accused-appellant's assault. As the trial court said, considering
all these facts, accused-appellant's claim that Melody voluntarily
went with him and agreed to have sexual intercourse with him was
simply incredible.
The trial court awarded P50,000.00 to the offended party as moral
damages. However, moral damages can be awarded only upon
sufficient proof that the complainant is entitled thereto in
accordance with Art. 2217 of the Civil Code. Accordingly, the
amount of P50,000.00 should be considered as civil indemnity in
accordance with our decision in People v. Gementiza. 28
WHEREFORE, the decision of the trial court is AFFIRMED with
the MODIFICATION that the award of P50,000.00 should be
considered indemnity to the offended party Melody Quintal.
SO ORDERED.
Regalado, Melo, Puno and Martinez, JJ., concur.
----
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF
APPEALS NACHURA, respondents.
G. R. No. 160188 June 21, 2007
TINGA, J.:
This case aims for prime space in the firmament of our criminal
law jurisprudence. Petitioner effectively concedes having
performed the felonious acts imputed against him, but instead
insists that as a result, he should be adjudged guilty of frustrated
theft only, not the felony in its consummated stage of which he was
convicted. The proposition rests on a common theory expounded in
two well-known decisions1 rendered decades ago by the Court of
Appeals, upholding the existence of frustrated theft of which the
accused in both cases were found guilty. However, the rationale
behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively
considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.3 A more
cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now
gives occasion for us to finally and fully measure if or how
frustrated theft is susceptible to commission under the Revised
Penal Code.
I.
The basic facts are no longer disputed before us. The case stems
from an Information6 charging petitioner Aristotel Valenzuela
(petitioner) and Jovy Calderon (Calderon) with the crime of theft.
On 19 May 1994, at around 4:30 p.m., petitioner and Calderon
were sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago
(Lago), a security guard who was then manning his post at the
open parking area of the supermarket. Lago saw petitioner, who
was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of
detergent of the well-known "Tide" brand. Petitioner unloaded
these cases in an open parking space, where Calderon was waiting.
Petitioner then returned inside the supermarket, and after five (5)
minutes, emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He
boarded the cab and directed it towards the parking space where
Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts
were eyed by Lago, who proceeded to stop the taxi as it was
leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by
fleeing on foot, but Lago fired a warning shot to alert his fellow
security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.8
The filched items seized from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional
cases of detergent, the goods with an aggregate value of
₱12,090.00.9
Petitioner and Calderon were first brought to the SM security
office before they were transferred on the same day to the Baler
Station II of the Philippine National Police, Quezon City, for
investigation. It appears from the police investigation records that
apart from petitioner and Calderon, four (4) other persons were
apprehended by the security guards at the scene and delivered to
police custody at the Baler PNP Station in connection with the
incident. However, after the matter was referred to the Office of
the Quezon City Prosecutor, only petitioner and Calderon were
charged with theft by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow security guards after
a commotion and brought to the Baler PNP Station. Calderon
alleged that on the afternoon of the incident, he was at the Super
Sale Club to withdraw from his ATM account, accompanied by his
neighbor, Leoncio Rosulada.11 As the queue for the ATM was
long, Calderon and Rosulada decided to buy snacks inside the
supermarket. It was while they were eating that they heard the
gunshot fired by Lago, leading them to head out of the building to
check what was
transpiring. As they were outside, they were suddenly "grabbed"
by a security guard, thus commencing their detention.12
Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside
the nearby BLISS complex and headed to ride a tricycle going to
Pag-asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start
running, at which point he was apprehended by Lago and brought
to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the
others were brought to the Baler Police Station. At the station,
petitioner denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutor’s
office where he was charged with theft.14 During petitioner’s
cross-examination, he admitted that he had been employed as a
"bundler" of GMS Marketing, "assigned at the supermarket"
though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional
Trial Court (RTC) of Quezon City, Branch 90, convicted both
petitioner and Calderon of the crime of consummated theft. They
were sentenced to an indeterminate prison term of two (2) years of
prision correccional as minimum to seven (7) years of prision
mayor as maximum.17 The RTC found credible the testimonies of
the prosecution witnesses and established the convictions on the
positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only
petitioner filed a brief19 with the Court of Appeals, causing the
appellate court to deem Calderon’s appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner
argued that he should only be convicted of frustrated theft since at
the time he was apprehended, he was never placed in a position to
freely dispose of the articles stolen.20 However, in its Decision
dated 19 June 2003,21 the Court of Appeals rejected this
contention and affirmed petitioner’s conviction.22 Hence the
present Petition for Review,23 which expressly seeks that
petitioner’s conviction "be modified to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner
effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a total
value of ₱12,090.00 of which he was charged.25 As such, there is
no cause for the Court to consider a factual scenario other than that
presented by the prosecution, as affirmed by the RTC and the
Court of Appeals. The only question to consider is whether under
the given facts, the theft should be deemed as consummated or
merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft,
petitioner cites26 two decisions rendered many years ago by the
Court of Appeals: People v. Diño27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial
court convictions from consummated to frustrated theft and
involve a factual milieu that bears similarity to the present case.
Petitioner invoked the same rulings in his appeal to the Court of
Appeals, yet the appellate court did not expressly consider the
import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short
shrift to the Diño and Flores rulings since they have not yet been
expressly adopted as precedents by this Court. For whatever
reasons,
the occasion to define or debunk the crime of frustrated theft has
not come to pass before us. Yet despite the silence on our part,
Diño and Flores have attained a level of renown reached by very
few other appellate court rulings. They are comprehensively
discussed in the most popular of our criminal law annotations,29
and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to
the fanciful scenarios that populate criminal law exams more than
they actually occur in real life. Indeed, if we finally say that Diño
and Flores are doctrinal, such conclusion could profoundly
influence a multitude of routine theft prosecutions, including
commonplace shoplifting. Any scenario that involves the thief
having to exit with the stolen property through a supervised egress,
such as a supermarket checkout counter or a parking area pay
booth, may easily call for the application of Diño and Flores. The
fact that lower courts have not hesitated to lay down convictions
for frustrated theft further validates that Diño and Flores and the
theories offered therein on frustrated theft have borne some weight
in our jurisprudential system. The time is thus ripe for us to
examine whether those theories are correct and should continue to
influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as
the specific issues relative to "frustrated theft," it is necessary to
first refer to the basic rules on the three stages of crimes under our
Revised Penal Code.30
Article 6 defines those three stages, namely the consummated,
frustrated and attempted felonies. A felony is consummated "when
all the elements necessary for its execution and accomplishment
are present." It is frustrated "when the offender performs all the
acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason
of causes independent of the will of the perpetrator." Finally, it is
attempted "when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective
phase," or that portion of the acts constituting the crime included
between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should
result in the consummated crime.31 After that point has been
breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the
subjective phase of the offense, the crime is merely attempted.33
On the other hand, the subjective phase is completely passed in
case of frustrated crimes, for in such instances, "[s]ubjectively the
crime is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long
as the offender fails to complete all the acts of execution despite
commencing the commission of a felony, the crime is undoubtedly
in the attempted stage. Since the specific acts of execution that
define each crime under the Revised Penal Code are generally
enumerated in the code itself, the task of ascertaining whether a
crime is attempted only would need to compare the acts actually
performed by the accused as against the acts that constitute the
felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts
of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually
produced by the acts of execution. The determination of whether
the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the
felony. It is the statutory definition that generally furnishes the
elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution
and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit
rea" supplies an important characteristic of a crime, that
"ordinarily, evil intent must unite with an unlawful act for there to
be a crime," and accordingly, there can be no crime when the
criminal mind is wanting.35 Accepted in this jurisdiction as
material in crimes mala in se,36 mens rea has been defined before
as "a guilty mind, a guilty or wrongful purpose or criminal
intent,"37 and "essential for criminal liability."38 It follows that
the statutory definition of our mala in se crimes must be able to
supply what the mens rea of the crime is, and indeed the U.S.
Supreme Court has comfortably held that "a criminal law that
contains no mens rea requirement infringes on constitutionally
protected rights."39 The criminal statute must also provide for the
overt acts that constitute the crime. For a crime to exist in our legal
law, it is not enough that mens rea be shown; there must also be an
actus reus.40
It is from the actus reus and the mens rea, as they find expression
in the criminal statute, that the felony is produced. As a postulate in
the craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the
felony is produced. Without such provision, disputes would
inevitably ensue on the elemental question whether or not a crime
was committed, thereby presaging the undesirable and legally
dubious set-up under which the judiciary is assigned the legislative
role of defining crimes. Fortunately, our Revised Penal Code does
not suffer from such infirmity. From the statutory definition of any
felony, a decisive passage or term is embedded which attests when
the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the
phrase "shall kill another," thus making it clear that the felony is
produced by the death of the victim, and conversely, it is not
produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308
of the Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any
person who, with intent to gain but without violence against or
intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver
the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property
of another, shall remove or make use of the fruits or object of the
damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where
trespass is forbidden or which belongs to another and without the
consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three
alternative and highly idiosyncratic means by which theft may be
committed.41 In the present discussion, we need to concern
ourselves only with the general definition since it was under it that
the prosecution of the accused was undertaken and sustained. On
the face of the definition, there is only one operative act of
execution by the actor involved in theft ─ the taking of personal
property of another. It is also clear from the provision that in order
that such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was with
intent to gain; without force upon things or violence against or
intimidation of persons; and it was without the consent of the
owner of the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1)
that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain;
(4) that the taking be done without the consent of the owner; and
(5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the
definition of theft, which under early Roman law as defined by
Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the
owner,"43 a definition similar to that by Paulus that a thief
"handles (touches, moves) the property of another."44 However,
with the Institutes of Justinian, the idea had taken hold that more
than mere physical handling, there must further be an intent of
acquiring gain from the object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to
gain, was maintained in both the Spanish and Filipino penal laws,
even as it has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with
apoderamiento, or "unlawful taking," to characterize theft. Justice
Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had
already discounted the belief that mere physical taking was
constitutive of apoderamiento, finding that it had to be coupled
with "the intent to appropriate the object in order to constitute
apoderamiento; and to appropriate means to deprive the lawful
owner of the thing."47 However, a conflicting line of cases decided
by the Court of Appeals ruled, alternatively, that there must be
permanency in the taking48 or an intent to permanently deprive the
owner of the stolen property;49 or that there was no need for
permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights
of the owner already constituted apoderamiento.50 Ultimately, as
Justice Regalado notes, the Court adopted the latter thought that
there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking
are present, including animo lucrandi and apoderamiento, the
completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went
beyond the attempted stage. As applied to the present case, the
moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated
by intent to gain, completed without need to inflict violence or
intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club,
petitioner forfeited the extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was consummated or
frustrated theft, we are obliged to apply Article 6 of the Revised
Penal Code to ascertain the answer. Following that provision, the
theft would have been frustrated only, once the acts committed by
petitioner, if ordinarily sufficient to produce theft as a
consequence, "do not produce [such theft] by reason of causes
independent of the will of the perpetrator." There are clearly two
determinative factors to consider: that the felony is not "produced,"
and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence
at hand in each particular case. The first, however, relies primarily
on a doctrinal definition attaching to the individual felonies in the
Revised Penal Code52 as to when a particular felony is "not
produced," despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or
frustrated, it is necessary to inquire as to how exactly is the felony
of theft "produced." Parsing through the statutory definition of
theft under Article 308, there is one apparent answer provided in
the language of the law — that theft is already "produced" upon
the "tak[ing of] personal property of another without the latter’s
consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a
customs inspector was charged with theft after he abstracted a
leather belt from the baggage of a foreign national and secreted the
item in his desk at the Custom House. At no time was the accused
able to "get the merchandise out of the Custom House," and it
appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the
trial court had found him guilty, instead, of frustrated theft. The
Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft,
finding that "all the elements of the completed crime of theft are
present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme
Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the
land of another. As he was in the act of taking the fruit[,] he was
seen by a policeman, yet it did not appear that he was at that
moment caught by the policeman but sometime later. The court
said: "[x x x] The trial court did not err [x x x ] in considering the
crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the
policemen who saw the accused take the fruit from the adjoining
land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him
for an interval of time." (Decision of the Supreme Court of Spain,
October 14, 1898.)
Defendant picked the pocket of the offended party while the latter
was hearing mass in a church. The latter on account of the
solemnity of the act, although noticing the theft, did not do
anything to prevent it. Subsequently, however, while the defendant
was still inside the church, the offended party got back the money
from the defendant. The court said that the defendant had
performed all the acts of execution and considered the theft as
consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by
means of a key opened up a case, and from the case took a small
box, which was also opened with a key, from which in turn he took
a purse containing 461 reales and 20 centimos, and then he placed
the money over the cover of the case; just at this moment he was
caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x
x] The accused [x x x] having materially taken possession of the
money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate
the same, he executed all the acts necessary to constitute the crime
which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make
the elements of the consummated crime." (Decision of the
Supreme Court of Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish
decisions cited therein, that the criminal actors in all these cases
had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission
of the acts of theft and the apprehension of the thieves did vary,
from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been
stored as it was in the 1882 decision; and before the thief had been
able to spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision. Still, such
intervals proved of no consequence in those cases, as it was ruled
that the thefts in each of those cases was consummated by the
actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused
was guilty only of frustrated rather than consummated theft. The
case is People v. Sobrevilla,57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a
pocketbook from the trousers of the victim when the latter,
perceiving the theft, "caught hold of the [accused]’s shirt-front, at
the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was
afterwards caught by a policeman."58 In rejecting the contention
that only frustrated theft was established, the Court simply said,
without further comment or elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime
of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accused’s] criminal liability, which
arose from the [accused] having succeeded in taking the pocket-
book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish
Supreme Court cases cited in the latter, in that the fact that the
offender was able to succeed in obtaining physical possession of
the stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
therein contradict the position of petitioner in this case. Yet to
simply affirm without further comment would be disingenuous, as
there is another school of thought on when theft is consummated,
as reflected in the Diño and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years
after Adiao and 15 years before Flores. The accused therein, a
driver employed by the United States Army, had driven his truck
into the port area of the South Harbor, to unload a truckload of
materials to waiting U.S. Army personnel. After he had finished
unloading, accused drove away his truck from the Port, but as he
was approaching a checkpoint of the Military Police, he was
stopped by an M.P. who inspected the truck and found therein three
boxes of army rifles. The accused later contended that he had been
stopped by four men who had loaded the boxes with the agreement
that they were to meet him and retrieve the rifles after he had
passed the checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the evident intent
of the accused was to let the boxes of rifles "pass through the
checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or
checking."60 This point was deemed material and indicative that
the theft had not been fully produced, for the Court of Appeals
pronounced that "the fact determinative of consummation is the
ability of the thief to dispose freely of the articles stolen, even if it
were more or less momentary."61 Support for this proposition was
drawn from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida
sea determinate de la consumacion del delito de hurto es preciso
que so haga en circunstancias tales que permitan al sustractor la
libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito
de hurto, no puede decirse en realidad que se haya producido en
toda su extension, sin materializar demasiado el acto de tomar la
cosa ajena.62
Integrating these considerations, the Court of Appeals then
concluded:
This court is of the opinion that in the case at bar, in order to make
the booty subject to the control and disposal of the culprits, the
articles stolen must first be passed through the M.P. check point,
but since the offense was opportunely discovered and the articles
seized after all the acts of execution had been performed, but
before the loot came under the final control and disposal of the
looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely intervention of the
guard. The offense committed, therefore, is that of frustrated
theft.63
Diño thus laid down the theory that the ability of the actor to freely
dispose of the items stolen at the time of apprehension is
determinative as to whether the theft is consummated or frustrated.
This theory was applied again by the Court of Appeals some 15
years later, in Flores, a case which according to the division of the
court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Diño]."64 Such conclusion is borne
out by the facts in Flores. The accused therein, a checker employed
by the Luzon Stevedoring Company, issued a delivery receipt for
one empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of the
stevedoring company. The truck driver proceeded to show the
delivery receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and discovered
that the "empty" sea van had actually contained other merchandise
as well.65 The accused was prosecuted for theft qualified by abuse
of confidence, and found himself convicted of the consummated
crime. Before the Court of Appeals, accused argued in the
alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of
spontaneous desistance on the part of the accused that "literally
frustrated the theft." However, the Court of Appeals, explicitly
relying on Diño, did find that the accused was guilty only of
frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no
substantial variance" between Diño and Flores then before it. The
prosecution in Flores had sought to distinguish that case from
Diño, citing a "traditional ruling" which unfortunately was not
identified in the decision itself. However, the Court of Appeals
pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of
its contents at once."66 Pouncing on this qualification, the
appellate court noted that "[o]bviously, while the truck and the van
were still within the compound, the petitioner could not have
disposed of the goods ‘at once’." At the same time, the Court of
Appeals conceded that "[t]his is entirely different from the case
where a much less bulk and more common thing as money was the
object of the crime, where freedom to dispose of or make use of it
is palpably less restricted,"67 though no further qualification was
offered what the effect would have been had that alternative
circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The
determinative characteristic as to whether the crime of theft was
produced is the ability of the actor "to freely dispose of the articles
stolen, even if it were only momentary." Such conclusion was
drawn from an 1888 decision of the Supreme Court of Spain which
had pronounced that in determining whether theft had been
consummated, "es preciso que so haga en circunstancias tales que
permitan al sustractor de aquella, siquiera sea mas o menos
momentaneamente." The qualifier "siquiera sea mas o menos
momentaneamente" proves another important consideration, as it
implies that if the actor was in a capacity to freely dispose of the
stolen items before apprehension, then the theft could be deemed
consummated. Such circumstance was not present in either Diño or
Flores, as the stolen items in both cases were retrieved from the
actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as
implied in Flores, the character of the item stolen could lead to a
different conclusion as to whether there could have been "free
disposition," as in the case where the chattel involved was of
"much less bulk and more common x x x, [such] as money x x
x."68
In his commentaries, Chief Justice Aquino makes the following
pointed observation on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated
when the thief is able to freely dispose of the stolen articles even if
it were more or less momentary. Or as stated in another case[69 ],
theft is consummated upon the voluntary and malicious taking of
property belonging to another which is realized by the material
occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once.
This ruling seems to have been based on Viada’s opinion that in
order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from
Adiao and other cases, also states that "[i]n theft or robbery the
crime is consummated after the accused had material possession of
the thing with intent to appropriate the same, although his act of
making use of the thing was frustrated."72
There are at least two other Court of Appeals rulings that are at
seeming variance with the Diño and Flores rulings. People v.
Batoon73 involved an accused who filled a container with gasoline
from a petrol pump within view of a police detective, who
followed the accused onto a passenger truck where the arrest was
made. While the trial court found the accused guilty of frustrated
qualified theft, the Court of Appeals held that the accused was
guilty of consummated qualified theft, finding that "[t]he facts of
the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to
consummate the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of
hospital linen from a supply depot and loaded them onto a truck.
However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity
with those in Diño, the Court of Appeals held that the accused
were guilty of consummated theft, as the accused "were able to
take or get hold of the hospital linen and that the only thing that
was frustrated, which does not constitute any element of theft, is
the use or benefit that the thieves expected from the commission of
the offense."76
In pointing out the distinction between Diño and Espiritu, Reyes
wryly observes that "[w]hen the meaning of an element of a felony
is controversial, there is bound to arise different rulings as to the
stage of execution of that felony."77 Indeed, we can discern from
this survey of jurisprudence that the state of the law insofar as
frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in
the first place.
IV.
The Court in 1984 did finally rule directly that an accused was
guilty of frustrated, and not consummated, theft. As we undertake
this inquiry, we have to reckon with the import of this Court’s 1984
decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had
espied four (4) persons in the premises of his plantation, in the act
of gathering and tying some coconuts. The accused were surprised
by the owner within the plantation as they were carrying with them
the coconuts they had gathered. The accused fled the scene,
dropping the coconuts they had seized, and were subsequently
arrested after the owner reported the incident to the police. After
trial, the accused were convicted of qualified theft, and the issue
they raised on appeal was that they were guilty only of simple
theft. The Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code,79 but further held that the
accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of
whether the theft was consummated or frustrated was raised by any
of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we
reproduce in full:
However, the crime committed is only frustrated qualified theft
because petitioners were not able to perform all the acts of
execution which should have produced the felony as a
consequence. They were not able to carry the coconuts away from
the plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this averment,
whether Diño, Flores or the Spanish authorities who may have
bolstered the conclusion. There are indeed evident problems with
this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors
"were not able to perform all the acts of execution which should
have produced the felon as a consequence."81 However, per
Article 6 of the Revised Penal Code, the crime is frustrated "when
the offender performs all the acts of execution," though not
producing the felony as a result. If the offender was not able to
perform all the acts of execution, the crime is attempted, provided
that the non-performance was by reason of some cause or accident
other than spontaneous desistance. Empelis concludes that the
crime was
frustrated because not all of the acts of execution were performed
due to the timely arrival of the owner. However, following Article
6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that
the acts were not performed because of the timely arrival of the
owner, and not because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we
consider the present petition. Even if the two sentences we had
cited actually aligned with the definitions provided in Article 6 of
the Revised Penal Code, such passage bears no reflection that it is
the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no
further explication.
Notably, Empelis has not since been reaffirmed by the Court, or
even cited as authority on theft. Indeed, we cannot see how
Empelis can contribute to our present debate, except for the bare
fact that it proves that the Court had once deliberately found an
accused guilty of frustrated theft. Even if Empelis were considered
as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and
also by the fact that it has not been entrenched by subsequent
reliance.
Thus, Empelis does not compel us that it is an insurmountable
given that frustrated theft is viable in this jurisdiction. Considering
the flawed reasoning behind its conclusion of frustrated theft, it
cannot present any efficacious argument to persuade us in this
case. Insofar as Empelis may imply that convictions for frustrated
theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870
Codigo Penal de España was then in place. The definition of the
crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en
las personas ni fuerza en las cosas, toman las cosas muebles ajenas
sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su
dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del
daño causado, salvo los casos previstos en los artίculos 606, núm.
1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo
párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However,
the said code would be revised again in 1932, and several times
thereafter. In fact, under the Codigo Penal Español de 1995, the
crime of theft is now simply defined as "[e]l que, con ánimo de
lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será
castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal
code of Spain, "la libre disposicion" of the property is not an
element or a statutory characteristic of the crime. It does appear
that the principle originated and perhaps was fostered in the realm
of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in
his 1926 commentaries on the 1870 Codigo Penal de España.
Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The
passage cited in Diño was actually utilized by Viada to answer the
question whether frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la cosa ajena,
viéndose sorprendido, la arroja al suelo."83 Even as the answer
was as stated in Diño, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decision’s factual
predicate occasioning the statement was apparently very different
from Diño, for it appears that the 1888 decision involved an
accused who was surprised by the employees of a haberdashery as
he was abstracting a layer of clothing off a mannequin, and who
then proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft,
and willingly recites decisions of the Supreme Court of Spain that
have held to that effect.85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent application by
the Spanish Supreme Court with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las
guardias cuando llevaban los sacos de harino del carro que los
conducia a otro que tenían preparado, 22 febrero 1913; cuando el
resultado no tuvo efecto por la intervención de la policia situada en
el local donde se realizó la sustracción que impidió pudieran los
reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo
menos" frustración, si existe apoderamiento, pero el culpale no
llega a disponer de la cosa, 12 abril 1930; hay frustración "muy
próxima" cuando el culpable es detenido por el perjudicado acto
seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos
han considerado la existencia de frustración cuando, perseguido el
culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo
1921; esta doctrina no es admissible, éstos, conforme a lo antes
expuesto, son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft
is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposición del
agente. Con este criterio coincide la doctrina sentada últimamente
porla jurisprudencia española que generalmente considera
consumado el hurto cuando el culpable coge o aprehende la cosa y
ésta quede por tiempo más o menos duradero bajo su poder. El
hecho de que éste pueda aprovecharse o no de lo hurtado es
indiferente. El delito no pierde su carácter de consumado aunque la
cosa hurtada sea devuelta por el culpable o fuere recuperada. No se
concibe la frustración, pues es muy dificil que el que hace cuanto
es necesario para la consumación del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy
vacilante, declara hurtos frustrados son verdaderos delitos
consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike
Viada, who was content with replicating the Spanish Supreme
Court decisions on the matter, Cuello Calón actually set forth his
own thought that questioned whether theft could truly be
frustrated, since "pues es muy dificil que el que hace cuanto es
necesario para la consumación del hurto no lo consume
efectivamente." Otherwise put, it would be difficult to foresee how
the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept
frustrated theft, as proposed in Diño and Flores. A final ruling by
the Court that there is no crime of frustrated theft in this
jurisdiction will not lead to scholastic pariah, for such a submission
is hardly heretical in light of Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the
Court to look at the question from a fresh perspective, as we are
not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of
commission in its frustrated stage. Further, if we ask the question
whether there is a mandate of statute or precedent that must
compel us to adopt the Diño and Flores doctrines, the answer has
to be in the negative. If we did so, it would arise not out of
obeisance to an inexorably higher command, but from the exercise
of the function of statutory interpretation that comes as part and
parcel of judicial review, and a function that allows breathing room
for a variety of theorems in competition until one is ultimately
adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is
that it lies in the province of the legislature, through statute, to
define what constitutes a particular crime in this jurisdiction. It is
the legislature, as representatives of the sovereign people, which
determines which acts or combination of acts are criminal in
nature. Judicial interpretation of penal laws should be aligned with
what was the evident legislative intent, as expressed primarily in
the language of the law as it defines the crime. It is Congress, not
the courts, which is to define a crime, and ordain its punishment.88
The courts cannot arrogate the power to introduce a new element
of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal
laws where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose, in
order to strictly determine the wrath and breath of the conduct the
law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores
dictum. The ability of the offender to freely dispose of the property
stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or
operative element of theft or as the mens rea or actus reus of the
felony. To restate what this Court has repeatedly held: the elements
of the crime of theft as provided for in Article 308 of the Revised
Penal Code are: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the consent
of the owner; and (5) that the taking be accomplished without the
use of violence against or intimidation of persons or force upon
things.90
Such factor runs immaterial to the statutory definition of theft,
which is the taking, with intent to gain, of personal property of
another without the latter’s consent. While the Diño/Flores dictum
is considerate to the mindset of the offender, the statutory
definition of theft considers only the perspective of intent to gain
on the part of the offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is
the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the
product of the felony that the offender, once having committed all
the acts of execution for theft, is able or unable to freely dispose of
the property stolen since the deprivation from the owner alone has
already ensued from such acts of execution. This conclusion is
reflected in Chief Justice Aquino’s commentaries, as earlier cited,
that "[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing
was frustrated."91
It might be argued, that the ability of the offender to freely dispose
of the property stolen delves into the concept of "taking" itself, in
that there could be no true taking until the actor obtains such
degree of control over the stolen item. But even if this were
correct, the effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would mean that not all
the acts of execution have not been completed, the "taking not
having been accomplished." Perhaps this point could serve as
fertile ground for future discussion, but our concern now is
whether there is indeed a crime of frustrated theft, and such
consideration proves ultimately immaterial to that question.
Moreover, such issue will not apply to the facts of this particular
case. We are satisfied beyond reasonable doubt that the taking by
the petitioner was completed in this case. With intent to gain, he
acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a
spot in the parking lot, and long enough to load these onto a
taxicab.
Indeed, we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the moment the offender
gains possession of the thing, even if he has no opportunity to
dispose of the same.92 And long ago, we asserted in People v.
Avila:93
x x x [T]he most fundamental notion in the crime of theft is the
taking of the thing to be appropriated into the physical power of
the thief, which idea is qualified by other conditions, such as that
the taking must be effected animo lucrandi and without the consent
of the owner; and it will be here noted that the definition does not
require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a
distinction of no slight importance.94
Insofar as we consider the present question, "unlawful taking" is
most material in this respect. Unlawful taking, which is the
deprivation of one’s personal property, is the element which
produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could
only be attempted theft, if at all.
With these considerations, we can only conclude that under Article
308 of the Revised Penal Code, theft cannot have a frustrated
stage. Theft can only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to
consider that once the offenders therein obtained possession over
the stolen items, the effect of the felony has been produced as there
has been deprivation of property. The presumed inability of the
offenders to freely dispose of the stolen property does not negate
the fact that the owners have already been deprived of their right to
possession upon the completion of the taking.
they did, their erroneous appreciation of our law on theft leave
them susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor from
this Court.
We thus conclude that under the Revised Penal Code, there is no
crime of frustrated theft. As petitioner has latched the success of
his appeal on our acceptance of the Diño and Flores rulings, his
petition must be denied, for we decline to adopt said rulings in our
jurisdiction. That it has taken all these years for us to recognize
that there can be no frustrated theft under the Revised Penal Code
does not detract from the correctness of this conclusion. It will take
considerable amendments to our Revised Penal Code in order that
frustrated theft may be recognized. Our deference to Viada yields
to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

Moreover, as is evident in this case, the adoption of the rule —that

the inability of the offender to freely dispose of the stolen property
frustrates the theft — would introduce a convenient defense for the
accused which does not reflect any legislated intent,95 since the
Court would have carved a viable means for offenders to seek a
mitigated penalty under applied circumstances that do not admit of
easy classification. It is difficult to formulate definite standards as
to when a stolen item is susceptible to free disposal by the thief.
Would this depend on the psychological belief of the offender at
the time of the commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual

circumstances such as the size and weight of the property, the
location of the property, the number and identity of people present
at the scene of the crime, the number and identity of people whom
the offender is expected to encounter upon fleeing with the stolen
property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant as
that would be on whether such property is capable of free disposal
at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that
beneath all the colorful detail, the owner was indeed deprived of
property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if
frustrated theft were recognized, for therein, all of the acts of
execution, including the taking, have been completed. If the facts
establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the
attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking
has been completed, causing the unlawful deprivation of property,
and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in

common sense. Yet they do not align with the legislated framework
of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said
rulings. Again, there is no language in Article 308 that expressly or
impliedly allows that the "free disposition of the items stolen" is in
any way determinative of whether the crime of theft has been
produced. Diño itself did not rely on Philippine laws or
jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support.
These cases do not enjoy the weight of stare decisis, and even if