FACTS:

Petitioner and Jovy 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 pushcart 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. 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. 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.

Ruling: guilty of consummated theft. To freely dispose of the articles is not an element of theft

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."

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

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."

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.

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.
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.

 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 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.

Evidence adduced show that the family of Norberto Divina were all lying down side by side about to
sleep on June 6, 2002 at around 9:00 o’clock in the evening, when suddenly their wall made of sack was
stripped off by appellant and his companions.

They ordered him to go out of their house and when he refused despite his plea for mercy, they fired at
them successively and indiscriminately, having hit and killed his two daughters, Mary Grace Divina and
Claudine who were 13 years old and 3 ½ years old respectively.

The 3 men ordered Norberto to come down from his house, but he refused to do so. The men then
uttered, "Magdasal ka na at katapusan mo na ngayon." Norberto pleaded with them, saying, "Maawa kayo
sa amin, matanda na ako at marami akong anak. Anong kasalanan ko sa inyo?" Despite such plea for
mercy, a gunshot was fired, and Norberto immediately threw his body over his children and wife in an
attempt to protect them from being hit. Thereafter, he heard successive gunshots being fired in the
direction where his family huddled together in their hut.

Motive (Norberto testified that the appellant is his brother-in-law. He recounted that in the evening of
June 6, 2002, as his entire family lay down on the floor of their one-room nipa hut to sleep, the "sack"
walling of their hut was suddenly stripped off, and only the supporting bamboo (fences) remained. With
the covering of the wall gone, the three (3) men responsible for the deed came into view. Norberto clearly
saw their faces which were illuminated by the light of a gas lamp hanging in their small hut. Norberto
identified the 3 men as appellant, Gilbert Estores and Roger San Miguel.)

In Criminal Case No. 7698-G, appellant was charged with Double Murder, defined and penalized under
Article 248 of the Revised Penal Code.

In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and Roger San Miguel, was charged
with Multiple Attempted Murder.

However, based on the sworn statement of one Danilo Fajarillo, the Provincial Prosecutor found no prima
facie case against Gilbert Estores and Roger San Miguel.

Appellant was then convicted by the trial court of Double Murder and Multiple Attempted Murder.

Aggrieved by the trial court’s judgments, appellant appealed to the CA, which rendered a Decision
affirming appellant’s conviction for the crimes charged.
On the charge of Murder

Appellant and the two other malefactors are equally responsible for the death of Norberto's daughters because,
as ruled by the trial court, they clearly conspired to kill Norberto's family. Conspiracy exists when two or more
persons come to an agreement regarding the commission of a crime and decide to commit it. Proof of a prior
meeting between the perpetrators to discuss the commission of the crime is not necessary as long as their
concerted acts reveal a common design and unity of purpose. In such case, the act of one is the act of all.18
Here, the three men undoubtedly acted in concert as they went to the house of Norberto together, each with his
own firearm. It is, therefore, no longer necessary to identify and prove that it is the bullet particularly fired from
appellant's firearm that killed the children.

 The presence of any one of the circumstances enumerated in Article 248 of the Code is sufficient to qualify a
killing as murder.20 The trial court correctly ruled that appellant is liable for murder because treachery attended
the killing of Norberto’s two children, thus:

x x x Evidence adduced show that the family of Norberto Divina, were all lying down side by side about to sleep
on June 6, 2002 at around 9:00 o’clock in the evening, when suddenly their wall made of sack was stripped off by
[appellant] Ireneo Jugueta, Roger San Miguel and Gilberto Alegre (sic) [Gilbert Estores]. They ordered him to go
out of their house and when he refused despite his plea for mercy, they fired at them having hit and killed his two
(2) daughters. The family of Norberto Divina were unarmed and his children were at very tender ages. Mary
Grace Divina and Claudine who were shot and killed were 13 years old and 3 ½ years old respectively. In this
case, the victims were defenseless and manifestly overpowered by armed assailants when they were gunned
down. There was clear showing that the attack was made suddenly and unexpectedly as to render the victims
helpless and unable to defend themselves. Norberto and his wife and his children could have already been
asleep at that time of the night.

Verily, the presence of treachery qualified the killing of the hapless children to murder. As held in People v.
Fallorina,22 the essence of treachery is the sudden and unexpected attack on an unsuspecting victim without the
slightest provocation on his part. Minor children, who by reason of their tender years, cannot be expected to put
up a defense. When an adult person illegally attacks a child, treachery exists.

As to the charge of multiple attempted murder, the last paragraph of Article 6 of the Revised Penal Code
states that a felony 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. In Esqueda v. People,23 the Court held:

If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated
physical injuries, if the offender had no intention to kill the victim, or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of:
(a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number
of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) the words uttered by the
offender at the time the injuries are inflicted by him on the victim.

In this case, the prosecution has clearly established the intent to kill on the part of appellant as shown by the use
of firearms, the words uttered24during, as well as the manner of, the commission of the crime.

In this case, the prosecution has clearly established the intent to kill on the part of appellant as shown by the use
of firearms, the words uttered24during, as well as the manner of, the commission of the crime. The Court thus
quotes with approval the trial court’s finding that appellant is liable for attempted murder, viz.:

In the case at bar, the perpetrators who acted in concert commenced the felony of murder first by suddenly
stripping off the wall of their house, followed by successive firing at the intended victims when Norberto Divina
refused to go out of the house as ordered by them. If only there were good in aiming their target, not only Mary
Grace and Claudine had been killed but surely all the rest of the family would surely have died. Hence,
perpetrators were liable for Murder of Mary Grace Divina and Claudine Divina but for Multiple Attempted Murder
for Norberto Divina, Maricel Divina, Elizabeth Divina and Judy Ann Divina. But as [appellant] Ireneo Jugueta was
the only one charged in this case, he alone is liable for the crime committed.25

G.R. No. 209373               July 30, 2014

JOEL YONGCO and JULIETO LAÑOJAN, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 209414

ANECITO TANGIAN, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

The Case

This treats of the consolidated Petitions for Review on Certiorari under Rule 45 in relation to Rule 125 of the
Rules of Court, assailing the Decision1 and Resolution of the Court of Appeals (CA) in CA-G.R. CR No. 00549-
MIN, dated January 21, 2013 and September 10, 2013, respectively. Said rulings affirmed the Regional Trial
Court (RTC) Decision convicting petitioners of qualified theft.

The Facts

Petitioners Joel Yongco, Julieta Lafiojan, and Anecito Tangian, Jr. were employees of the City Government of
Iligan. Tangian worked as a garbage truck driver for the city, while Yongco and Lañojanwere security guards
assigned to protect the premises of the City Engineer’s Office (CEO). On November 14, 2005, an Information
was filed before the RTC, Branch 5 in Iligan City, Lanao del Norte charging the three with Qualified Theft. The
information docketed as Crim. Case No. 12092 reads:

That on or about April 16, 2005, in the City of Ilagan, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, being then regular and casual employees of the City government as drivers and helpers
respectively, of a garbage truck with Plate No. 496, conspiring and confederating togetherand mutually helping
each other, with grave abuse of confidence reposed upon them by the city government, and with intent to gain,
did then and there willfully, unlawfully and feloniously take, steal and carry away the following articles, to wit: one
(1) unit transmission, boom, differential of Tamaraw and l-beam of Nissan with a total value of ₱40,000.00,
belonging to the City government of Ilagan, represented by Atty. Rommel Abragan of the City Legal Office, Iligan
City, withoutthe consent and against the will of the said owner in the aforesaid sum of ₱40,000.00, Philippine
Currency.2

During the arraignment held on February 16, 2006, accused petitioners entered a plea of not guilty tothe offense
charged. Pre-trial was then conducted and closed on July 25, 2006. Thereafter, trial on the merits ensued.

Version of the Prosecution

The prosecution presented as one ofits witnesses a casual employee of the city government, Pablo Salosod,who
testified that on April 16, 2005 at around 1:30 a.m., while attending a wake at the Cosmopolitan Funeral Parlor,
he was fetched and requestedby petitioner Tangian to accompany him to the CEO. At the office garage, Salosod
and his fellow garbage collectors were allegedly directed by petitioners Tangian and Yongco to load car parts
that petitioners considered aswaste items, the subject items of the theft, on the truck driven by Tangian. They
then drove to Tominobo, Iligan City where the materials were unloaded in front of Delfin Junk Store, and before
the truck left the shop, Salosod allegedly saw petitioner Lañojan giving a thumbs-up sign to Tangian. On the way
back, Tangian allegedly confessed to Salosod that it was Lañojan who requested that the items be brought at the
junk shop. Another employee, Rommel Ocaonilla, corroborated the testimony of Salosod.

Prosecution witness Oliveros Garcia meanwhile testified witnessing the unloading of the items in front of the junk
store, after which, Lañojan covered the items up with a sack. The following morning, he allegedly saw Lañojan’s
brother-in-law, who coincidentally works at the shop, take the items inside.

Witnesses Dioscoro Galorio and Atty. Ulysses Lagcao, employee and consultant of the city government,
respectively, testified that they conducted investigations relative to the incidentand found out that the items stolen
consisted of one Nissan transmission,one unit boom, one Nissan I-beam, and one differential of Tamaraw, with
total valuation of PhP 12,000. Upon their investigation, they recommended tothe city legal officer the filing of the
present criminal case against the three petitioners.

Version of the Defense

In defense, petitioners testified intheir behalves. Their testimony is summarized by the CA in the Decision now on
appeal in the following wise:

Joel Yongco, 34, single, x x x and a casual employee, testified that, on August 9, 2004, he was issued a Job
Order and detailed at the Civil Security Unit (CSU). He was assigned to guard the building installation of the
CEO. On April 15, 2005, he was on duty with his companion, one Mr. Quintana. They relieved Lañojan and one
Mr. Enumerables. Lañojan gave him (Yongco) four gate passes and saidthat the area would have to be cleared
because the "Bacod" Iliganvehicle would be arriving. Yongco read the entries on one of[the] gate passes.
Theyread: "Loaded assorted scraps with remark to be thrown atthe dump site." At the bottom of the gate pass
was the "note" of EngineerCabahug with the signatures of the guards, Lañojan and Enumerables. From 5:00 PM
to 12:00 midnight on April 15, 2005, there was only one shipment of scrap iron to the dump site. The dump truck
driven by Tangian entered the CEO premises at around 11:00 o’clock in the evening of the same date. Tangian
went to the yard where the scrap iron were situated and asked Yongco to accompany and help him. Tangian
gathered the scrap materials and the four of them (Tangian, Yongco, and the 2 helpers of Tangian) loaded the
said scrap to the dump truck. At around 12:45 P.M., after loading the items, Tangian drove away without giving a
gate pass to the guards on duty. Yongco did not ask Tangian for a gate pass because Yongco had one
companion in the guard house to get the gate pass.

Julieto Lañojan, 48, who was working in the CSU division for 20 years and assigned to guard the CEO, testified
that he was not on duty on April 15 and 16, 2005; he was on duty on April 14, 2005 at 7:00 A.M. up to April 15,
2005 of the same time. When Yongco and Quintana relieved him on April 15, 2005 at 7:00 in the morning, he
gave the four gate passes which were used to ship outassorted scrap irons to them to be kept for the file.
Engineer Cabahug was the one who directed the removal of the scrap iron because the area of the CEO would
have to be cleared since new trucks for the government were coming. His house, which was along the national
highway, was about 40-50 metersaway from Delfin Junk Store. He knew Oliveros Garcia who was a kagawad of
Tominobo, Iligan City. Aside from that, Garcia had filed an ejectment case against him (Lañojan), which was still
pending in court.

xxxx

Anecito Tangian, Jr., 59, garbage truck driver at the City Engineer’s Office for 16 years, testified that his highest
level of educational attainment was Grade I. It was his tour of duty on April 15, 2005 at 9:00 o’clock in the
evening up to April 16, 2005 at 6:00 o’clock in the morning. At around 5:30 in the morning of April 15, 2005,
Lañojan asked him to load scrap materials onto the garbage truck and to bring them to the Delfin Junk Store in
Tominobo. He asked Lañojan if there were any problems about the loading ofthe said items. Lañojan answered
that there were no problems about the loading of the same, that the City Garbage would have to be cleared
considering that "BACOD" trucks would be arriving at thatarea. He followed Lañojan because the latter was the
guard at the City Garage. When hearrived for duty at the City Garage at around 9:00 in the evening, Yongco
asked him if Lañojan already informed him about the loading of the items. After that he checked up the garbage
truck while Yongco and the two helpers were loading the items. He did not know how many items were loaded
because he only helped the three of them during the loading of the differential. After loading the scrap materials,
Tangian and the two helpers drove away from the City Garage. They dropped by the Cosmo Funeral Homes for
more than an hour before they proceeded to Tominobo. When they reached Delfin Junk Store, Lañojan gave a
thumbs-up sign to Tangian, which meant okay. He then left and started his work collecting garbage.3

Ruling of the Regional Trial Court

On April 11, 2008, the RTC held petitioners liable for qualified theft via conspiracy. The dispositive portion of the
Decision reads:

SO ORDERED.4

Aggrieved, petitioners, in their appeal, prayed that the CA reverse the RTC Decision. Petitioner Tangian
reiterated in his Brief that he should not be considered as a conspirator since he merely innocentlyobeyed
Lañojan’s instructions on the assumption that the latter was his superior and that Lañojan was authorized to get
rid of the scrap materials in the CEO premises and that he had no criminal intent whatsoever.
In their joint brief, Yongco and Lañojan also disclaimed the existence of a conspiracy. Yongco, in his defense,
argued that Tangian and his two other helpers asked for his assistance which he extended ingood faith, in view
of Lañojan’s statement earlier that day that the office garage has to be cleared. Lañojan, on the other hand,
insisted that he cannot be considered as a conspirator since he was not present at the time of taking, and that
the mere giving of a thumbs-up sign to Tangian when the latter delivered the materials to the junk shop does not
amount to conspiracy.

Ruling of the Court of Appeals

On January 21, 2013, the CA issued the assailed Decision denying petitioners’ appeals. In affirming the RTC
Decision in toto, the CA ruled that there was indeed conspiracy because Tangian could nothave taken out the
items without a gate pass, but with the security guard Yongco’s participation, he was able to do justthat. The CA
also ruled that it is implausible that Tangian would just leave the items in front of the junk shop unattended. Thus,
the appellate court appreciated the testimonies of the prosecution witnesses that Lañojan’s presence was not
merely coincidental and that his thumbs-up and his subsequent act of covering the materials with sacks indicate
that the plan was for him to receive the said items. Petitioners, via motion for reconsideration, sought the CA’s
reversal of the Decision only for the appellate court to deny the same through its challenged Resolution dated
September 10, 2013.

Not contented with the adverted Decision of the CA as reiterated in the Resolution, petitioners Yongco and
Lañojan jointly filed a Petition for Review on Certiorari while petitioner Tangian separately filed his
own.1âwphi1 The two petitions were later consolidated by this Court for resolution herein.

The Issue

As with most criminal cases, the main issue in the instant case is whether or not the CA erred in sustaining
petitioners’ conviction. Central to resolving this issue is determining whether or not there indeed existed
conspiracy between petitioners in committing the offense charged.

The Court’s Ruling

The petitions are bereft of merit.

Article 310, in relation to Art. 308,of the Revised Penal Code (RPC) defines Qualified Theft, thusly:

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 objects of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fishupon the same or shall gather
fruits, cereals, or other forestor farm products.

xxxx

ART. 310. Qualified Theft.—The crime of theft shall be punished by the penalties next higher by two degrees
than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave
abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts
taken from the premises of a plantation, fishtaken from a fishpond or fishery or if property is taken on the
occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil
disturbance. (emphasis added)
Synthesizing the foregoing provisions, the elements of Qualified Theft, committed with grave abuse of discretion,
can simply be enumerated as follows:

1. Taking of personal property;

2. That the said property belongs to another;

3. That the said taking be done with intent to gain;

4. That it be done without the owner’s consent;

5. That it be accomplished without the use of violence or intimidation against persons, nor of force upon
things; and

6. That it be done with grave abuse of confidence.5

As correctly observed by the appellatecourt, all of the elements of Qualified Theft are present in this case, viz:

There is no dispute that the items (transmission, boom arm, differential assembly, and I-beam) which are the
subject matter of this case belong to the CEO of Iligan City. There is no dispute that these items, although
considered "heap of scrap," have not yet been declared unserviceable or waste by the proper authority or office.
Nor have they been marked for proper disposal. Unless properly disposed in accordance with Section 379 of the
Local Government Code, these items are still government properties or owned by the City of Iligan.

There is also no dispute that these items were taken away from the CEO and were already under completeand
effective control of the persons taking the same. This is because these items were loaded onto the garbage truck
driven by Tangian and brought to Tominobo at the Delfin Junk Store.

Apparently, the taking of these items was without the consent of the CEO of Iligan City because there was no
gate pass issued to that effect. Evidence shows that when the garbage truck left the premises of the CEO, no
gate pass was surrendered by Tangian. Yongco did not bother to ask for a gate pass on the pretext that there
was another guard on duty at the gate.

Intent to gain or animus lucrandiis an internal act that is presumed from the unlawful taking by the offender of the
thing subject to asportation. Actual gain is irrelevant as the important consideration is the intent to gain. Since
these items werebrought to the junk store, intent to gain becomes obvious. The presumption of animus
lucrandihas not been overturned.

It is equally patent that the taking of these items was done with grave abuse of confidence. The accused in this
case, itbears stressing, were guards and drivers with access tothe entrance and exit of the CEO premises. In
other words,they enjoyed the trust and confidence reposed on them by their employer (the City ofIligan) to
haveaccess throughout the CEO premises on account of their respective duties. More so since the primary
function of the CSU is to guard the properties, including the said items, of the CEO. It was this trust and
confidence that was gravely abused by them that makes the theft qualified.6

Concisely stated, the fact of taking without consent is indubitable. Indeed, petitioners hinge their plea for acquittal
and supporting argument primarily on their lack of criminal intent and the observed conspiracy.

Addressing the issue head on, We uphold the findings of the appellate court. No error can be ascribed to the CA
when it determined the existence of conspiracy between and among petitioners in this case.

There is conspiracy when two or more persons come to an agreement concerning a felony and decide to commit
it.7 Well-settled is the rule that in conspiracy, direct proof of a previousagreement is not necessary as it may be
deduced from the mode, method, and manner by which the offense was perpetrated.8 It may be inferred from the
acts of the accused before, during, or after the commission of the crime which, when taken together, would be
enough to reveal a community of criminal design, as the proof of conspiracy is frequently made by evidenceof a
chain of circumstances.9

In the case at bar, even though there is no showing of a prior agreement among the accused, their separate acts
taken and viewed together are actually connected and complemented each other indicating a unity of criminal
design and purpose.10
Tangian’s complicity in the illicit deed was manifest from the fact, as he himself admitted, that he was the one
who personally transported the stolen items from the CEO to the junkshop. His claim that he was not aware of
any irregularity in the act he performed is rendered dubious by his 16 years of service as truck driver for the City
of Iligan. To be sure, his record of service argues against his claim of ignorance of the standard protocol that a
gate pass to be issued by the CEO property custodian should first be secured before taking out items from the
CEO compound, including alleged waste materials. He should also know better than to assume that Lañojan can
authorize the withdrawal of items without the requisite gate pass since Lañojan’s duty, as security guard, is
precisely to prevent the same.

Similarly, Yongco’s claim of good faith is belied by his own admission that he knew of the office procedure that a
gate pass is required every time something is taken out of the CEO premises. In fact, four gate passes were
given to him that morning by Lañojan, covering waste materials withdrawn during the latter’s shift. At the very
least, this should have reminded him of his duty to demand a gate pass for property leaving the CEO premises.
Neither memory lapses orlapses in the performance of his duty will explain Yongco’s failure to demand a gate
pass.The only viable explanation is that he was in connivance with other petitioners.11

Lastly, the RTC, with valid reason, tagged Lañojan as having instigated and marshalled the entire scheme. To
quote the trial court:

x x x As shown above, it appears that Lañojan broached the idea to Yongco that the items subject of this case
will be withdrawn under the pretext of clearing the CEO scrap yard of unserviceable waste materials. Then
Lañojan gave Yongco 4 gate passes apparently to be used to coverup or camouflage the actual withdrawallater
that evening. Then Lañojan told Tangian to load the items under the same ploy of clearing the scrap yard of
unserviceable waste materials and that they will not encounter any problem. Finally, Lañojan was seen by Brgy.
Kag. Oliveros Garcia at 1:30 o’clock in the morning of April 16, 2005 receiving the items as they were dumped
near the Delfin Junk Store,Tominobo, Iligan City. After the items were dumped, Lañojan then gave Tangian the
"thumbs-up" sign, meaning everything is okay – clear proof of meeting of minds between Tangian and Lañojan,
and their collusion to steal the items under the pretext of disposing unserviceable waste materials. This non-
verbal "thumbs-up" sign was also seenby the truck helper Salosod.12 x x x

In conspiracy, the act of one is the act of all. Once conspiracy is established, all the conspirators are answerable
as co-principals regardless of the extent or degree of their participation.13 The guilt of one is the guilt of all. It is
common design which is the essence of conspiracy—conspirators may act separately or together in different
manners but always leading to the same unlawful result. The character and effect of conspiracy are not to be
adjudged by dismembering it and viewing its separate parts but only by looking at it as a whole—acts done to
give effect to conspiracy may be, in fact, wholly innocent acts.14 Applying this doctrine in the case at bench, it can
reasonably be concluded that despite Lañojan’s lack of physical participation in hauling the items to Tangian’s
truck and bringing them to the junk shop, he can still be liable for Qualified Theft via conspiracy. All told, there is
no cogent reason for us todisturb the findings of the appellate court, affirmatory of those of the trial court.

G.R. No. 114261           February 10, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BERLY FABRO y AZUCENA, accused-appellant.

FACTS:

Appellant Fabro, together with her common-law husband Donald Pilay and Irene Martin, was
charged with the crime of "Violation of Section 21 (b) Art. IV, in relation to Section 4, Art. II of
Republic Act No. 6425, as amended of the RTC of Baguio City in an information that reads:

That on or about the 7th day of April 1993, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually aiding one another, did then and there willfully, unlawfully and feloniously sell and/or
deliver to PO2 ELLONITO APDUHAN, who acted as poseur-buyer, one (1) kilo of dried
marijuana leaves, a prohibited drug without any authority of law, in violation of the
aforementioned provision of law.

Two concerned individuals, Gloria and Emma Borce, reported to Chief Inspector Evasco of the
14th Narcotics Regional Field Office, that a couple living together as husband and wife was
engaged in selling marijuana. Acting on the report, Chief Inspector Evasco organized two teams
to conduct a buy-bust operation. SPO2 Apduhan was designated poseur-buyer in the operation.
As Apduhan, Gloria and Emma drew near Pilay’s residence, appellant met them. Her common-
law husband who appeared drunk was inside the house by the main door. Gloria and Emma
introduced Apduhan to appellant as a stranger in the place who wanted to buy marijuana. After
Apduhan had ordered a kilo of the contraband, appellant told them to wait a while. She returned
in the company of Irene Martin. Appellant was holding something that looked like a brick wrapped
in newspaper and placed inside a transparent plastic bag. Appellant handed the stuff to
Apduhan. Her companion, Irene Martin, demanded payment therefor. After ascertaining that it
was a brick of marijuana, Apduhan made the pre-arranged signal of lighting his cigarette; the
back-up team rushed towards their direction and arrested appellant and Pilay. Irene Martin was
able to escape.

The trial court rendered a decision finding appellant Fabro guilty beyond reasonable doubt of the
offense charged.

ISSUE: W/N there is conspiracy in the commission of the crime.

Appellant's contention that Irene Martin was the real culprit being the source of the contraband
does not in any way absolve her of the crime of selling marijuana. While it is true that it was Irene
Martin who took the money, appellant was the one who negotiated with the poseur-buyers;
fetched her co-accused; carried and handed over the marijuana to Apduhan. The acts of Martin
and appellant clearly show a unity of purpose in the consummation of the sale of marijuana. In
other words, between Martin and appellant, conspiracy in the commission of the crime was
indubitably proven by the prosecution.

A final note. The information denotes the crime as a "VIOLATION OF SECTION 21 (b) ART. IV
IN RELATION TO SECTION 4/ARTICLE II OF REPUBLIC ACT 6425 AS AMENDED". 41 This is
an erroneous designation of the crime committed. Section 21 of R.A. 6425 reads:

Sec. 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the
commission of the offense shall be imposed in case of any . . . conspiracy to commit the
same in the following cases:

b) Sale, administration, delivery, distribution and transportation of dangerous drugs.

It is clear that Section 21 (b) of R.A. 6425 punishes the mere conspiracy to commit the offense of
selling, delivering, distributing and transporting of dangerous drugs. Conspiracy herein refers to
the mere agreement to commit the said acts and not the actual execution thereof. While the rule
is that a mere conspiracy to commit a crime without doing any overt act is not punishable, the
exception is when such is specifically penalized by law, as in the case of Section 21 of Republic
Act 6425. Conspiracy as crime should be distinguished from conspiracy as a manner of incurring
criminal liability the latter being applicable to the case at bar.
In any event, such error in the information is not fatal. The body of the information states that the
crime for which the petitioner is charged is as follows:

the above-named accused, conspiring, confederating and mutually aiding one another,
did there willfully, unlawfully and feloniously sell and/or deliver to PO2 Elonito Apduhan,
who acted as poseur buyer, one (1) kilo of dried marijuana leaves. . .

It has been our consistent ruling that what is controlling are the actual recital of facts in the body
of the information and not the caption or preamble of the crime. 42

Having considered the assignments of error and finding no basis which, from any aspect of the
case, would justify us in interfering with the findings of the trial court, it results that the appealed
decision must be AFFIRMED in toto.

JACINTO vs PEOPLE

GEMMA JACINTO vs PEOPLE

G.R. NO. 162540 13July2009 592SCRA26

FACTS: In June 1997, Baby Aquino, handed petitioner -collector of Mega Foam, a post dated checked worth P10,000 as
payment for Baby’s purchases from Mega Foam International, Inc. The said check was deposited to the account of
Jacqueline Capitle’s husband-Generoso. Rowena Recablanca, another employee of Mega Foam, received a phone call from
an employee of Land Bank, who was looking for Generoso to inform Capitle that the BDO check deposited had been
dishonored. Thereafter, Joseph Dyhenga talked to Baby to tell that the BDO Check bounced. However, Baby said that she
had already paid Mega Foam P10,000 cash in August 1997 as replacement for the dishonored check.

Dyhengco filed a compliant with the National Bureau of Investigation (NBI) and worked out an entrapment operation with
its agents. Thereafter, petitioner and Valencia were arrested. The NBI filed a criminal case for qualified theft against the
two (2) and Jacqueline Capitle.

RTC rendered a decision that Gemma, Anita and Jacqueline GUILTY beyond reasonable doubt of the crime of QUALIFIED
THEFT and each of the sentenced to suffer imprisonment of Five (5) years, Five (5) months and Eleven (11) days to Six (6)
years, Eight (8) months and Twenty (20) days.

ISSUE: Whether or not the crime committed falls the definition of Impossible Crime.

HELD: Yes, Since the crime of theft is not a continuing offense, petitioner’s act of receiving the cash replacement should not
be considered as continuation of the Theft.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject
of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value
of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without
value, as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually
produced. (no theft was produced)

Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

2. By any person performing an act which would be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the employment of inadequate to ineffectual means. (emphasis
supplied)

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or
property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the
means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise:

Under this article, the act performed by the offender cannot produce an offense against persons or property because: (1)
the commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. x x x 11

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in
the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner
performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be
unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which
was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact
unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner
turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the
cash to replace the value of said dishonored check.1avvphi1

The fact that petitioner was later entrapped receiving the ₱5,000.00 marked money, which she thought was the cash
replacement for the dishonored check, is of no moment. The Court held in Valenzuela v. People12 that under the definition
of theft in Article 308 of the Revised Penal Code, "there is only one operative act of execution by the actor involved in theft
─ the taking of personal property of another." Elucidating further, the Court held, thus:

x x x 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."
x x x 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. x x x