G.R. No.

L-45973 May 27, 1938

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. EUSTAQUIO FLORES,Defendant-Appellant.

Vicente Ampil for appellant.

Office of the Solicitor-General Tuason for appellee.

DIAZ, J.: 
chanrobles virtual law library

Appellant was charged with qualified theft of jewels valued at P220,

belonging to Luisa Magbituin. Having pleaded guilty upon
arraignment, he was convicted of the crime and sentenced by the
trial court to an indeterminate penalty of one year, eight months
and twenty days to four years, two months and one day of prision
correccional.  
chanroblesvirtualawlibrary chanrobles virtual law library

His appeal is based on the supposed error committed by the lower

court in having considered the offense as qualified theft instead of
any simple theft. He contends that the allegation of the information
that he committed the crime with abuse of confidence because he
was at the time living in the house of the owner of the jewels from
whom he was receiving his daily subsistence, is not sufficient to
elevate the offense to the category of qualified theft. The question
raised by the appellant is not new, having been decided on more
than one occasion contrary to his contention. It is opportune to
repeat here what we stated in the case of People vs. Syou Hu (36
Off. Gaz., 1385), that "the grave abuse of confidence is a mere
circumstance which aggravates and qualifies the commission of the
crime of theft. It is not necessary for said circumstance to be
premeditated in order to be taken into consideration as an
aggravating circumstance qualifying said crime. Its presence in the
commission of the crime is sufficient. The fact that the accused was
living in the house of the offended party, who had sheltered him out
of charity, when he took the money belonging to his protector,
aggravates the crime committed by him, inasmuch as he gravely
abused the confidence which the owner of the house reposed in him
upon permitting him, out of charity, to live therein, stifling the
sentiment of gratitude awakened in his bosom by his benefactors'
charitable act. This abuse of confidence was all the more grave
because it happened between fellow countrymen. He who with
intent of gain, acts as the appellant did, removing and belonging to
the person who has given him shelter and daily bread, out of
charity, acts with grave abuse of confidence and thereby commits
the crime of qualified theft. Consequently, the classification given to
the offense of the appellant is in accordance with law.   chanroblesvirtualawlibrary chanrobles virtual law library

There is no question as to the penalty imposed on the appellant.

Under the provisions of article 310 of the Revised Penal Code,
taking into consideration the value of the stolen jewels (less than
P6,000 but more than P200), the crime calls for the penalty
of prision correccional  in its maximum degree to prision mayor in its
minimum degree. In the absence of any aggravating circumstance
to offset the extenuating circumstance of plea of guilty, the
minimum degree of the penalty was imposed by the lower court,
which is within the limit of the penalty next lower in degree to that
prescribed by the law, in accordance with the terms of the
Indeterminate Sentence Law.   chanroblesvirtualawlibrary chanrobles virtual law library

The appealed judgment is affirmed with costs against the appellant.

So ordered.

Villa-Real, Abad Santos, Imperial, Laurel and Concepcion, JJ.,

concur.

Republic of the Philippines
Supreme Court
Baguio City
 
FIRST DIVISION
 
PEOPLE OF THE PHILIPPINES,   G.R. No. 177761
Appellee,    
    Present:
   
    CORONA, C.J., Chairperson,
- versus -   LEONARDO-DE CASTRO,
    BERSAMIN,
     DEL CASTILLO, and
    VILLARAMA, JR., JJ.
REMEDIOS TANCHANCO    
y PINEDA,   Promulgated:
Appellant.   April 18, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
DECISION
 
DEL CASTILLO, J.:
 
Theft becomes qualified when it is committed with grave abuse of confidence.[1]
 
Factual Antecedents
 
On appeal is the September 27, 2006 Decision[2] of the Court of Appeals (CA) in CA-GR.
CR-H.C. No. 01409 which affirmed with modification the July 4, 2005 Decision[3] of the
Regional Trial Court (RTC) of Las Pias City, Branch 198, finding appellant Remedios
Tanchanco y Pineda (appellant) guilty beyond reasonable doubt of the crime of qualified
theft.
 
The Information[4] against appellant contained the following accusatory
allegations:
 
That during the period from October 2000 to May 8, 2001, in the City of Las
Pias, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
Accused, being then employed as Legal Secretary and Liaison Officer of
Complainant ATTY. REBECCA MANUEL Y AZANZA, with intent [to] gain, with
grave abuse of confidence and without the knowledge and consent of the owner thereof,
did then and there willfully, unlawfully and feloniously take, steal, and carry away cash
money amounting to Four Hundred Seventeen Thousand Nine Hundred Twenty-
two [Pesos] and ninety centavos (P417,922.90) [from] said Complainant, to the
damage and prejudice of the latter x x x.
 
CONTRARY TO LAW.[5]
 
 
The appellant entered a plea of not guilty during her arraignment. Thereafter, trial
ensued.
 
Version of the Prosecution
 
Private complainant Atty. Rebecca Manuel y Azanza (Rebecca) knew appellant for more
than 25 years, the latter being the niece of her long-time neighbor. During this period,
Rebecca and her children established a close relationship with appellant to the point that
they treated her as a member of their family. In June 1999, Rebecca hired appellant to
work in her office as legal secretary and liaison officer. One of appellants tasks as liaison
officer was to process the transfer of titles of Rebeccas clients.
 
In the course of appellants employment, Rebecca noticed that the completion of the
transfer of titles was taking longer than usual. Upon inquiry, appellant attributed the
delay to the cumbersome procedure of transferring titles, as well as to the fact that
personnel processing the documents could not be bribed. Rebecca took appellants word
for it. However, appellant suddenly abandoned her job on April 18, 2001. And when
Rebecca reviewed appellants unfinished work, she discovered that the latter betrayed her
trust and confidence on several occasions by stealing sums of money entrusted to her as
payment for capital gains tax, documentary stamp tax, transfer tax and other expenses
intended for the transfer of the titles of properties from their previous owners to Rebeccas
clients.
 
According to Rebecca, she gave appellant P39,000.00 as payment for donors tax in
connection with a Deed of Donation and Acceptance and Deed of Partition by
Donees/Co-Owners, which her client Tomas Manongsong (Tomas) paid for the
partitioning of a parcel of land located in Batangas. Upon verification from the Bureau of
Internal Revenue (BIR), however, it turned out that appellant paid only P31,709.08. This
was confirmed by the Bank of Commerce,[6] where appellant made such payment.
 
Appellant also received P20,000.00 from Tomass wife, Mila Manongsong, for the
processing of the properties land titles. Appellant liquidated the same in a handwritten
statement[7] in which she indicated payment of P10,089.45 for transfer tax under Official
Receipt (OR) No. 1215709 and of P7,212.00 for registration with the Registry of Deeds
of Bauan, Batangas under OR No. 5970738. An inquiry, however, later revealed that OR
No. 1215709 was issued only for the amount of P50.00, representing payment for the
issuance of a certified true copy of a tax declaration,[8] while OR No. 5970738 was never
issued per Certification[9] from the same Registry of Deeds. Rebecca also found out that
the documents relevant to the said transfer of titles are still with the BIR since the amount
of P4,936.24 had not yet been paid.
 
Appellant also duped Rebecca relative to the P105,000.00 for the payment of the capital
gains and documentary stamp taxes. Said taxes arose from the sale of a house and lot
covered by TCT No. (62911) T-33899-A to her client Dionisia Alviedo (Alviedo).
Appellant submitted a liquidation statement[10] stating that she paid the sums
of P81,816.00 as capital gains tax and P20,460.00 for documentary stamp tax under
Equitable Bank OR Nos. 937110 and 937111, respectively. However, said bank certified
that said ORs do not belong to the series of ORs issued by it. [11] As a result, Rebecca was
constrained to pay these taxes with the corresponding penalties and surcharges.
 
Rebecca further alleged that in connection with the payment of the capital gains and
documentary stamp taxes imposed on the property of another client, Carmelita Sundian
(Sundian), she gave appellant P120,000.00. Appellant purportedly presented a
handwritten liquidation report stating that she paid the amounts of P94,281.00 as capital
gains tax and P23,571.00 as documentary stamp tax under Equitable Bank OR Nos.
717228[12] and 717229.[13] Appellant also stated that the balance from the money intended
for processing the papers of Sundian was only P2,148.00.[14] However, Rebecca
discovered upon verification that the receipts submitted by appellant are bogus as
Equitable Bank issued a Certification[15] that said ORs were issued to different persons
and for different amounts. Rebecca was again forced to refund the sum to Sundian.
 
With regard to Rebeccas client Rico Sendino, Rebecca claimed that she gave
appellant P35,000.00 for the payment of capital gains and transfer taxes in connection
with the deed of sale executed between one Priscilla Cruz and her said client. In the
handwritten liquidation statement[16] submitted to her by appellant, the latter claimed to
have paid the amount of P35,000.00 under Traders Royal Bank OR No. 1770047.
[17]
 Again, the receipt turned out to be a fake as said bank issued a Certification[18] negating
the issuance of said OR.And just as in transactions with her other clients, Rebecca was
forced to shell-out money from her own funds to pay the same.
 
Leilani Gonzaga (Gonzaga) was another client of Rebecca who engaged her services to
pay the capital gains tax imposed on the sale of a property. After Rebecca told appellant
to go to the BIR, the latter indicated in her handwritten liquidation statement that she paid
the capital gains tax using two Equitable PCI Managers Checks for which she was issued
OR Nos. 1770016 and 1770017, and cash payments of P71,184.00 under OR No.
1770018 and P17, 805.00 under OR No. 1770019.[19] However, no payments were
actually made. To complete the processing of the transaction, Rebecca had to pay the
sum of P3,273.00 to the Registry of Deeds and P9,050.00 for the transfer tax imposed on
the transaction.
 
The same thing happened with the payment of capital gains tax as a result of a Deed of
Transfer with Partition Agreement of a Land executed between Rebeccas client Edmer
and his siblings, Evelyn and Renato, all surnamed Mandrique. [20] This time, appellant
showed Rebecca a donors tax return[21] accomplished in her own handwriting as proof of
payment of the sum of P12,390.00. Appellant also liquidated the amount of P6,250.00 as
advance payment made to a geodetic engineer for the purpose of subdividing the
property.[22] Again, Rebecca was later able to verify that no payments in such amounts
were made.
 
According to Rebecca, appellant likewise pocketed the sum of P10,000.00
intended for the processing of 15 titles that the latter claimed to have paid in her
liquidation report. Also, Rebecca asserted that appellant did not pay or file the proper
application for the issuance of title of the Grand Del Rosario property. Aside from the
above, Rebecca was likewise constrained to complete the processing of one of the three
other titles recovered from appellant and had to pay the capital gains tax imposed on the
purchase of the land in the sum of more than P100,000.00.
 
All in all, the money supposed to be used as payments for capital gains and transfer taxes
as well as for the registration of sale of properties of Rebeccas various clients amounted
to P427,992.90. Aside from this sum, Rebecca also spent at least P650,000.00 for the
reconstitution of all the documents, payment of surcharges for late filing of capital gains
tax returns, transportation expenses and other incidental expenses.
Version of the Appellant
 
Appellant admitted that she used to be the legal secretary and liaison officer of Rebecca.
In particular, as liaison officer, she attended to the transfer of titles of Rebeccas clients
such as Gonzaga, Manongsong, Alviedo and others whose names she could no longer
remember. She claimed that the processing of the title of the Manongsong property was
her last transaction for Rebecca. She was given money to pay the capital gains tax at the
BIR. When confronted with the charges filed against her, appellant merely denied the
allegations.
 
Ruling of the Regional Trial Court
 
In its Decision[23] of July 4, 2005, the trial court found the existence of a high degree of
confidence between Rebecca and appellant. It noted that the relationship between the two
as employer-employee was not an ordinary one; appellant was being considered a part of
Rebeccas family. Because of this trust and confidence, Rebecca entrusted to appellant
cash in considerable sums which were liquidated through appellants own handwritten
statements of expenses. However, appellant gravely abused the trust and confidence
reposed upon her by Rebecca when she pocketed the money entrusted to her for
processing the clients land titles. And as a cover up, she presented to Rebecca either fake
or altered receipts which she did not even deny during trial. The trial court thus found
appellant guilty beyond reasonable doubt of the crime charged.
However, the trial court ruled that the total amount stolen by appellant
was P407,711.68 and not P417,907.90 as claimed by Rebecca. It disposed of the case as
follows:
 
WHEREFORE, in view of all the foregoing, the court finds the accused Remedios
Tanchanco y Pineda GUILTY beyond reasonable doubt of the crime of Qualified Theft
as defined and penalized under Article 309, paragraph 1 and Article 310 of the Revised
Penal Code, and hereby sentences said accused to suffer the penalty of reclusion
perpetua and to indemnify the offended party in the sum of Four Hundred Seven
Thousand Seven Hundred Eleven Pesos and Sixty Eight Centavos (P407,711.68)
representing the total amount taken by the accused, without subsidiary imprisonment in
case of insolvency, with costs.
 
SO ORDERED.[24]
 
 
Ruling of the Court of Appeals
 
 
The appellate court affirmed the trial courts ruling but came up with a different
figure as to the total amount taken by the appellant. The CA noted that there was no clear
justification for the award of P407,711.68 as an examination of the records revealed that
appellant failed to pay or padded her expenses only in the total amount of P248,447.45,
computed as follows:
 
On the Manongsong property:
P 10,089.45 Transfer tax[25]
P 7,212.00 Registration of the documents[26]
P 2,000.00 Estate tax[27]
P 8,000.00 Difference between the donors tax that accused- appellant claimed
she paid and that which she actually paid per certification of the
Bank of Commerce[28]
P 27,301.45 Sub-total
 
On the Alviedo property:
P 81,816.00 Capital gains tax[29]
P 20,460.00 Documentary stamp tax[30]
P 102,276.00 Sub-total
  
On the Sundian property:
P 94,281.00 Capital gains tax[31]
P 23,571.00 Documentary stamp tax[32]
P 117,852.00 Sub-total
 
On the Sendino property:
P 6,018.00 Ueda donors tax[33]
P 35,000.00 Capital gains tax and documentary stamp tax[34]
P 41,018.00 Sub-total
 
On the Mandrique property:
P 10,000.00 Difference between donors tax per accused- appellants liquidation
report and the amount she actually paid[35]
P 10,000.00 Sub-total
P 248,447.45 Total[36] (Footnotes supplied.)
 
 
Thus, the dispositive portion of its Decision[37] dated September 27, 2006 reads:
 
 
WHEREFORE, the assailed Decision dated July 4, 2005 is AFFIRMED with
MODIFICATION in that accused-appellant, Remedios Tanchanco Pineda is hereby
ordered to indemnify the private complainant Rebecca Manuel y Azanza the sum of Two
Hundred Forty-Eight Thousand Four Hundred Forty-Seven Pesos and Forty Five
Centavos (P248,447.45) representing the total amount she took from the private
complainant.
 
SO ORDERED.[38]
 
 
Issue
 
 
In this appeal, appellant again raises the lone issue she submitted to the CA, viz:
 
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF
QUALIFIED THEFT DESPITE THE FAILURE OF THE PROSECUTION TO
OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN
HER FAVOR.[39]
 
 
Appellant maintains that there is no direct evidence to prove that she actually received the
alleged amounts intended for the processing of various documents. She also denies the
claim that she took the money entrusted to her during the period from May 2000 to May
8, 2001 as alleged in the Information.
 
Our Ruling
 
The appeal is not meritorious.
 
Courts below correctly held appellant liable
for qualified theft
 
 
The elements of the crime of Theft as provided for in Article 308 of the Revised Penal
Code [(RPC)] are: (1) x x x there [was] taking of personal property; (2) x x x [the]
property belongs to another; (3) x x x the taking [was] done with intent to gain; (4) x x x
the taking [was] without the consent of the owner; and (5) x x x the taking was
accomplished without the use of violence against or intimidation of persons or force upon
things.[40]
As to the first and second elements, we quote with approval the CAs discussion on the
matter:
 
Accused-appellant contends that the prosecution failed to prove by direct
evidence the first and basic element of the offense that is, the taking of the sum of
Php417,922.90 during the period from May 2000 up to May 8, 2001. She claims that the
prosecution failed to adduce any evidence that would prove that the accused actually
received the alleged amounts handed to her for the processing of various documents.
 
xxxx
 
Regarding x x x the prosecutions failure to present direct evidence to prove the accused-
appellants taking of the questioned amount, it is Our view that the absence of direct
evidence proving accused-appellants stealing and carrying away of the alleged
Php417,922.90 from private respondent would not matter as long as there is enough
circumstantial evidence that would establish such element of taking. After all, Sec. 4,
Rule 133 of the Revised Rules of Court provides that an accused may be convicted on
the basis of circumstantial evidence if more than one circumstance is involved, the facts
of which, inferring said circumstances have been proven, and provided that the
combination of all such circumstances would suffice to produce a conviction beyond
reasonable doubt.
 
There is no doubt, as held by the trial court, that the prosecution was able to
establish the following circumstances:
 
 1.              Accused-appellant was the legal secretary and liaison officer of private
complainant from June 1999 to April 18, 2001. She was the only person working for the
private complainant during said period.
 
2.              As legal secretary and liaison officer, accused-appellant was tasked to
process land titles of private complainants clients. Her duties included the payment of
taxes (documentary stamp taxes, capital gains taxes, transfer tax) for the transfer of title
from previous owners to new owners/buyers of the property.
 
3.              Because of the nature of accused appellants work and the trust reposed in
her by private complainant, the latter confidently gave her considerable amounts of cash
without need of receipts. The accused-appellant even admitted that she often received
money from private complainant for payment of capital gains and transfer taxes.
 
4.              There were also instances when accused-appellant was authorized by
private complainant to collect money from her clients especially when the accused-
appellant ran out of money needed in the processing of titles.
 
5.              The accused-appellant was given a free hand in liquidating her expenses
in her own handwriting.
 
6.              Upon verification from banks and government agencies with which the
accused-appellant transacted in relation to her tasks, the private complainant discovered
that what the accused-appellant submitted were handwritten padded liquidation
statements because her reported expenses turned out to be higher than what she actually
spent; and worse, the official receipts she submitted to private complainant were fake. x x
x.
 
xxxx
 
7.              The accused-appellant did not specifically deny her submitting altered or
fake receipts in liquidating her expenses for said taxes.
 
8.              And conceding her guilt, the accused-appellant suddenly disappeared
leaving some of her tasks, unfinished.
 
xxxx
 
[These] pieces of circumstantial evidence presented by the prosecution constitute
an unbroken chain leading to a fair and reasonable conclusion that accused-appellant took
sums of money that were entrusted to her by the private complainant. x x x[41]
 
Circumstantial evidence may prove the guilt of appellant and justify a conviction
if the following requisites concur: (a) there is more than one circumstance; (b) the facts
from which the inferences are derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. [42] In other
words, [f]or circumstantial evidence to be sufficient to support conviction, all
circumstances must be consistent with each other, consistent with the hypothesis that the
accused is guilty and at the same time inconsistent with the hypothesis that he is innocent,
and with every other rational hypothesis except that of guilt. [43] Here, we agree with the
CA that the circumstances above enumerated lead to the reasonable conclusion that
appellant took amounts of money from Rebecca.
 
With regard to the third element, [i]ntent to gain (animus lucrandi) is presumed to
be alleged in an information, in which it is charged that there was unlawful taking
(apoderamiento) and appropriation by the offender of the things subject of asportation.
[44]
 In this case, it was established that appellant padded her expenses and submitted fake
receipts of her supposed payment for the processing of the transfer of land titles, to gain
from the money entrusted to her by Rebecca. Her intentional failure to properly and
correctly account for the same constitutes appropriation with intent to gain.
 
Anent the fourth element pertaining to Rebeccas lack of consent, same is
manifested by the fact that it was only after appellant abandoned her job on April 18,
2001 that Rebecca discovered the missing sums of money. Her subsequent acts of
confirming the payment or non-payment of fees and of verifying from different banks the
issuance of the purported ORs presented to her by appellant in liquidating the amounts
she entrusted to the latter, negates consent on Rebeccas part.
 
With regard to the fifth element, it is clear from the facts that the taking was
accomplished without the use of violence against or intimidation of persons or force upon
things.
 
From these, it is clear that all the elements of theft are obtaining in this case. The
next crucial question now is, did appellant commit the crime with grave abuse of
confidence as to make her liable for qualified theft? Under Article 310 of the [RPC], theft
[becomes] qualified when it is, among others, committed with grave abuse of confidence.
x x x[45] The grave abuse of confidence must be the result of the relation by reason of
dependence, guardianship, or vigilance, between the appellant and the offended party that
might create a high degree of confidence between them which the appellant abused.[46]
 
Here, it is undisputed that appellant was a close friend of Rebecca and her family. It was
due to this personal relationship that appellant was employed by Rebecca as a legal
secretary and liaison officer. The latter position necessarily entails trust and confidence
not only because of its nature and the functions attached to it, but also because appellant
makes representations on behalf of Rebecca as regards third parties. By reason of this, all
matters essentially pertaining to the conduct of business of the law office were known by,
and entrusted to, appellant. This included the safekeeping of important documents and
the handling of money needed for the processing of papers of Rebeccas clients. It is thus
safe to assume that Rebecca relied on appellant when it comes to the affairs of her law
office as to create a high degree of trust and confidence between them. And as Rebecca
trusted appellant completely, and by reason of her being the liaison officer, she handed
the monies to appellant without requiring the latter to sign any paper to evidence her
receipt thereof. She also allowed appellant to liquidate the expenses incurred through
mere handwritten liquidation statements solely prepared by appellant and treated them, as
well as the official receipts presented, as true and correct. It thus becomes clear that it is
because of the trust and confidence reposed by Rebecca upon appellant that the latter was
able to make it appear from her liquidation statements that she spent the sums she
received from Rebecca for their intended purposes. To conceal this, she presented to
Rebecca fake or altered receipts for the supposed payment, all of which form part of the
records as evidence. Unfortunately for appellant, she was not able to refute Rebeccas
allegations against her as well as the evidence supporting the same since what she
advanced during trial were mere bare denials. The Court has oft pronounced that x x x
denial x x x [is] an inherently weak [defense] which cannot prevail over the positive and
credible testimony of the prosecution witness that the accused committed the crime.
[47]
 The Court therefore concludes that appellant took undue advantage of Rebeccas
confidence in her when she appropriated for herself sums of money that the latter
entrusted to her for a different purpose. The theft in this case was thus committed with
grave abuse of confidence. Hence, appellant was correctly held by the lower courts as
liable for qualified theft.
 
With respect to appellants contention that she could not have taken the alleged amount of
money until May 8, 2001 since her employment with Rebecca lasted only until April 18,
2001, same fails to impress. The Information alleged that the crime was committed
during the period from October 2000 to May, 2001. The word during simply means at
some point in the course of[48] or throughout the course of a period of time[49] from October
2000 to May 8, 2001. In the Information, during should therefore be understood to mean
at some point from October 2000 to May 8, 2001, and not always until May 8,
2001. Further, the period alleged in the Information, which is from October 2000 to May
8, 2001 is not distant or far removed from the actual period of the commission of the
offense, which is from October 2000 to April 17, 2001.
 
As to the total amount unlawfully taken by appellant, we hold that the sum
of P407,711.68 which the trial court came up with has no basis. After a thorough review
of the records, we find as correct instead the result of the detailed computation made by
the CA as to the total amount of money that appellant stole or padded as expenses, which
is only P248, 447.75.
 
The Proper Penalty
 
Article 310 of the RPC provides that the crime of qualified theft shall be punished by the
penalties next higher by two degrees than those respectively specified in Art. 309. Under
paragraph 1, Art. 309 of the RPC, the penalty of prision mayor in its minimum and
medium periods is to be imposed if the value of the thing stolen is more than P12,000.00
but does not exceed P22,000.00. But if the value of the thing stolen exceeds the latter
amount, the penalty shall be the maximum period of the one prescribed in said paragraph
[prision mayor in its minimum and medium periods], and one year for each
additional P10,000.00, but the total of the penalty which may be imposed shall not
exceed twenty (20) years. In such cases and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of the RPC, the
penalty shall be termed prision mayoror reclusion temporal, as the case may be. Here,
the amount stolen by appellant, as correctly found by the CA, is P248,447.75. Since the
said amount exceeds P22,000.00, the basic penalty is prision mayor in its minimum and
medium periods to be imposed in the maximum period, which is eight (8) years, eight (8)
months and one (1) day to ten (10) years ofprision mayor.[50] To determine the additional
years of imprisonment, P22,000.00 must be deducted from the said amount and the
difference should then be divided byP10,000.00, disregarding any amount less
than P10,000.00. Hence, we have twenty-two (22) years that should be added to the
basic penalty. However, the imposable penalty for simple theft should not exceed a total
of twenty (20) years. Thus, had the appellant committed simple theft, the penalty for this
case would be twenty (20) years of reclusiontemporal. But as the penalty for qualified
theft is two degrees higher, the proper penalty as correctly imposed by both lower courts
is reclusion perpetua.[51]
 
WHEREFORE, the appeal is hereby DENIED. The Decision of the Court of Appeals
in CA-G.R. CR-H.C. No. 01409 finding appellant Remedios Tanchanco y Pineda guilty
beyond reasonable doubt of the crime of qualified theft is AFFIRMED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 170863               March 20, 2013

ENGR. ANTHONY V. ZAPANTA, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari 1 filed by petitioner Engr. Anthony V. Zapanta,
challenging the June 27, 2005 decision2 and the November 24, 2005 resolution 3 of the Court of
Appeals (CA) in CA-G.R. CR No. 28369. The CA decision affirmed the January 12, 2004 decision 4 of
the Regional Trial Court (RTC) of Baguio City, Branch 3, in Criminal Case No. 20109-R, convicting
the petitioner of the crime of qualified theft. The CA resolution denied the petitioner's motion for
reconsideration.

The Factual Antecedents

An April 26, 2002 Information filed with the RTC charged the petitioner, together with Concordia O.
Loyao, Jr., with the crime of qualified theft, committed as follows:That sometime in the month of
October, 2001, in the City of Baguio, Philippines, and within the jurisdiction of [the] Honorable Court,
xxx accused ANTHONY V. ZAPANTA, being then the Project Manager of the Porta Vaga Building
Construction, a project being undertaken then by the Construction Firm, ANMAR, Inc. under sub-
contract with A. Mojica Construction and General Services, with the duty to manage and implement
the fabrication and erection of the structural steel framing of the Porta Varga building including the
receipt, audit and checking of all construction materials delivered at the job site – a position of full
trust and confidence, and CONCORDIO O. LOYAO, JR., alias "JUN", a telescopic crane operator of
ANMAR, Inc., conspiring, confederating, and mutually aiding one another, with grave abuse of
confidence and with intent of gain, did then and there willfully, unlawfully and feloniously take, steal
and carry away from the Porta Vaga project site along Session road, Baguio City, wide flange steel
beams of different sizes with a total value ofP2,269,731.69 without the knowledge and consent of
the owner ANMAR, Inc., represented by its General Manager LORNA LEVA MARIGONDON, to the
damage and prejudice of ANMAR, Inc., in the aforementioned sum of P2,269,731.69, Philippine
Currency.5

Arraigned on November 12, 2002, the petitioner entered a plea of "not guilty." 6 Loyao remains at-
large.

In the ensuing trial, the prosecution offered in evidence the oral testimonies of Danilo Bernardo,
Edgardo Cano, Roberto Buen, Efren Marcelo, private complainant Engr. Lorna Marigondon, and
Apolinaria de Jesus,7 as well as documentary evidence consisting of a security logbook entry,
delivery receipts, photographs, letters, and sworn affidavits. The prosecution’s pieces of evidence,
taken together, established the facts recited below.

In 2001, A. Mojica Construction and General Services (AMCGS) undertook the Porta Vaga building
construction in Session Road, Baguio City. AMCGS subcontracted the fabrication and erection of the
building’s structural and steel framing to Anmar, owned by the Marigondon family. Anmar ordered its
construction materials from Linton Commercial in Pasig City. It hired Junio Trucking to deliver the
construction materials to its project site in Baguio City. It assigned the petitioner as project manager
with general managerial duties, including the receiving, custody, and checking of all building
construction materials.8
On two occasions in October 2001, the petitioner instructed Bernardo, Junio Trucking’s truck driver,
and about 10 Anmar welders, including Cano and Buen, to unload about 10 to 15 pieces of 20 feet
long wide flange steel beams at Anmar’s alleged new contract project along Marcos Highway,
Baguio City. Sometime in November 2001, the petitioner again instructed Bernardo and several
welders, including Cano and Buen, to unload about 5 to 16 pieces of 5 meters and 40 feet long wide
flange steel beams along Marcos Highway, as well as on Mabini Street, Baguio City. 9

Sometime in January 2002, Engr. Nella Aquino, AMCGS’ project manager, informed Engr.
Marigondon that several wide flange steel beams had been returned to Anmar’s warehouse on
October 12, 19, and 26, 2001, as reflected in the security guard’s logbook. Engr. Marigondon
contacted the petitioner to explain the return, but the latter simply denied that the reported return
took place. Engr. Marigondon requested Marcelo, her warehouseman, to conduct an inventory of the
construction materials at the project site. Marcelo learned from Cano that several wide flange steel
beams had been unloaded along Marcos Highway. There, Marcelo found and took pictures of some
of the missing steel beams. He reported the matter to the Baguio City police headquarters and
contacted Anmar to send a truck to retrieve the steel beams, but the truck came weeks later and, by
then, the steel beams could no longer be found. The stolen steel beams amounted
to P2,269,731.69.10

In his defense, the petitioner vehemently denied the charge against him. He claimed that AMCGS,
not Anmar, employed him, and his plan to build his own company had been Engr. Marigondon’s
motive in falsely accusing him of stealing construction materials. 11

The RTC’s Ruling

In its January 12, 2004 decision, 12 the RTC convicted the petitioner of qualified theft. It gave
credence to the prosecution witnesses’ straightforward and consistent testimonies and rejected the
petitioner’s bare denial. It sentenced the petitioner to suffer the penalty of imprisonment from 10
years and 3 months, as minimum, to 20 years, as maximum, to indemnify Anmar P2,269,731.69,
with legal interest from November 2001 until full payment, and to pay Engr.
Marigondon P100,000.00 as moral damages.

The CA’s Ruling

On appeal, the petitioner assailed the inconsistencies in the prosecution witnesses’ statements, and
reiterated his status as an AMCGS employee. 13

In its June 27, 2005 decision, 14 the CA brushed aside the petitioner’s arguments and affirmed the
RTC’s decision convicting the petitioner of qualified theft. It found that the prosecution witnesses’
testimonies deserve full credence in the absence of any improper motive to testify falsely against the
petitioner. It noted that the petitioner admitted his status as Anmar’s employee and his receipt of
salary from Anmar, not AMCGS. It rejected the petitioner’s defense of denial for being self-serving.
It, however, deleted the award of moral damages to Engr. Marigondon for lack of justification.

When the CA denied15 the motion for reconsideration16 that followed, the petitioner filed the present
Rule 45 petition.

The Petition

The petitioner submits that, while the information charged him for acts committed "sometime in the
month of October, 2001," he was convicted for acts not covered by the information, i.e., November
2001, thus depriving him of his constitutional right to be informed of the nature and cause of the
accusation against him. He further argues that the prosecution failed to establish the fact of the loss
of the steel beams since the corpus delicti was never identified and offered in evidence.

The Case for the Respondent

The respondent People of the Philippines, through the Office of the Solicitor General, counters that
the issues raised by the petitioner in the petition pertain to the correctness of the calibration of the
evidence by the RTC, as affirmed by the CA, which are issues of fact, not of law, and beyond the
ambit of a Rule 45 petition. In any case, the respondent contends that the evidence on record
indubitably shows the petitioner’s liability for qualified theft.

The Issue

The case presents to us the issue of whether the CA committed a reversible error in affirming the
RTC’s decision convicting the petitioner of the crime of qualified theft.

Our Ruling

The petition lacks merit.

Sufficiency of the allegation of date of the

commission of the crime

Section 6, Rule 110 of the Rules of Criminal Procedure, which lays down the guidelines in
determining the sufficiency of a complaint or information, provides:

Section 6. Sufficiency of complaint or information. - A complaint or information is sufficient if it states

the name of the accused; the designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the approximate date of
the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the
complaint or information. (italics supplied; emphasis ours)

As to the sufficiency of the allegation of the date of the commission of the offense, Section 11, Rule
110 of the Rules of Criminal Procedure adds:

Section 11. Date of commission of the offense. - It is not necessary to state in the complaint or
information the precise date the offense was committed except when it is a material ingredient of the
offense. The offense may be alleged to have been committed on a date as near as possible to the
actual date of its commission. [italics supplied; emphasis ours]

Conformably with these provisions, when the date given in the complaint is not of the essence of the
offense, it need not be proven as alleged; thus, the complaint will be sustained if the proof shows
that the offense was committed at any date within the period of the statute of limitations and before
the commencement of the action.

In this case, the petitioner had been fully apprised of the charge of qualified theft since the
information stated the approximate date of the commission of the offense through the words
"sometime in the month of October, 2001." The petitioner could reasonably deduce the nature of the
criminal act with which he was charged from a reading of the contents of the information, as well as
gather by such reading whatever he needed to know about the charge to enable him to prepare his
defense.

We stress that the information did not have to state the precise date when the offense was
committed, as to be inclusive of the month of "November 2001" since the date was not a material
element of the offense. As such, the offense of qualified theft could be alleged to be committed on a
date as near as possible to the actual date of its commission. 17 Clearly, the month of November is
the month right after October.

The crime of qualified theft was

committed with grave abuse of discretion

The elements of qualified theft, punishable under Article 310 in relation to Articles 308 and 309 of the
Revised Penal Code (RPC), are: (a) the taking of personal property; (b) the said property belongs to
another; (c) the said taking be done with intent to gain; (d) it be done without the owner's consent;
(e) it be accomplished without the use of violence or intimidation against persons, nor of force upon
things; and (f) it be done under any of the circumstances enumerated in Article 310 of the RPC, i.e.,
with grave abuse of confidence.18

All these elements are present in this case. The prosecution’s evidence proved, through the
prosecution’s eyewitnesses, that upon the petitioner’s instruction, several pieces of wide flange steel
beams had been delivered, twice in October 2001 and once in November 2001, along Marcos
Highway and Mabini Street, Baguio City; the petitioner betrayed the trust and confidence reposed on
him when he, as project manager, repeatedly took construction materials from the project site,
without the authority and consent of Engr. Marigondon, the owner of the construction materials.

Corpus delicti is the fact of the commission

of the crime

The petitioner argues that his conviction was improper because the alleged stolen beams or corpus
delicti had not been established. He asserts that the failure to present the alleged stolen beams in
court was fatal to the prosecution’s cause.

The petitioner’s argument fails to persuade us.

"Corpus delicti refers to the fact of the commission of the crime charged or to the body or substance
of the crime. In its legal sense, it does not refer to the ransom money in the crime of kidnapping for
ransom or to the body of the person murdered" or, in this case, to the stolen steel beams. "Since the
corpus delicti is the fact of the commission of the crime, this Court has ruled that even a single
witness' uncorroborated testimony, if credible, may suffice to prove it and warrant a conviction
therefor. Corpus delicti may even be established by circumstantial evidence." 19 "In theft, corpus
delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost
by felonious taking."20

In this case, the testimonial and documentary evidence on record fully established the corpus delicti.
The positive testimonies of the prosecution witnesses, particularly Bernardo, Cano and Buen, stating
that the petitioner directed them to unload the steel beams along Marcos Highway and Mabini Street
on the pretext of a new Anmar project, were crucial to the petitioner’s conviction. The security
logbook entry, delivery receipts and photographs proved the existence and the unloading of the steel
beams to a different location other than the project site.
 Proper Penalty

The RTC, as affirmed by the CA, sentenced the petitioner to suffer the penalty of imprisonment from
10 years and three months, as minimum, to 20 years, as maximum, and to indemnify
Anmar P2,269,731.69, with legal interest from November 2001 until full payment. Apparently, the
RTC erred in failing to specify the appropriate name of the penalty imposed on the petitioner.

We reiterate the rule that it is necessary for the courts to employ the proper legal terminology in the
imposition of penalties because of the substantial difference in their corresponding legal effects and
accessory penalties. The appropriate name of the penalty must be specified as under the scheme of
penalties in the RPC, the principal penalty for a felony has its own specific duration and
corresponding accessory penalties. 21 Thus, the courts must employ the proper nomenclature
specified in the RPC, such as "reclusion perpetua" not "life imprisonment," or "ten days of arresto
menor" not "ten days of imprisonment." In qualified theft, the appropriate penalty is reclusion
perpetua based on Article 310 of the RPC which provides that "the crime of qualified theft shall be
punished by the penalties next higher by two degrees than those respectively specified in Article
309."22
1âwphi1

To compute the penalty, we begin with the value of the stolen steel beams, which is P2,269,731.69.
Based on Article 309 of the RPC, since the value of the items exceeds P22,000.00, the basic penalty
is prision mayor in its minimum and medium periods, to be imposed in the maximum period, which is
eight years, eight months and one day to 10 years of prision mayor.

To determine the additional years of imprisonment, we deduct P22,000.00 from P2,269,731.69,

which gives usP2,247,731.69. This resulting figure should then be divided by P10,000.00,
disregarding any amount less thanP10,000.00. We now have 224 years that should be added to the
basic penalty. However, the imposable penalty for simple theft should not exceed a total of 20 years.
Therefore, had petitioner committed simple theft, the penalty would be 20 years of reclusion
temporal. As the penalty for qualified theft is two degrees higher, the correct imposable penalty
is reclusion perpetua.

The petitioner should thus be convicted of qualified theft with the corresponding penalty of reclusion
perpetua.

WHEREFORE, we hereby DENY the appeal. The June 27, 2005 decision and the November 24,
2005 resolution of the Court of Appeals in CA-G.R. CR No. 28369 are AFFIRMED with
MODIFICATION. Petitioner Engr. Anthony V. Zapanta is sentenced to suffer the penalty of reclusion
perpetua. Costs against the petitioner.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 205180               November 11, 2013

RYAN VIRAY, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
 DECISION

VELASCO, JR., J.:

This is a Petition for Review on Certiorari under Rule 45 to reverse and set aside the August 31,
2012 Decision and January 7 2013 Resolution  of the Court of Appeals (CA) in CA-G.R. CR No.
1 2

33076, which affirmed with modification the Decision of the Regional Trial Court of Cavite City,
Branch 16 (RTC), in Criminal Case No. 66-07.

The factual backdrop of this case is as follows:

An Information for qualified theft was filed against petitioner Ryan Viray before the RTC, which
reads:

That on or about 19 October 2006, in the City of Cavite, Republic of the Philippines, a place within
the jurisdiction of this Honorable Court, the above-named accused, then being employed as a helper
of ZENAIDA VEDlJA y SOSA with intent to gain and with grave abuse of confidence did then and
there, willfully, unlawfully and feloniously steal, take and carry away several pieces of jewelry, One
(1) Gameboy, One (1) CD player, One (1) Nokia cell phone and a jacket with a total value
of P297,800.00 belonging to the said Zenaida S. Vedua, without the latter s consent and to her
damage and prejudice in the aforestated amount of P297,800.00.

CONTRARY TO LAW. 3

When arraigned, the accused pleaded "not guilty."  At the pre-trial, the defense proposed the
4

stipulation, and the prosecution admitted, that the accused was employed as a dog caretaker of
private complainant ZenaidaVedua (Vedua) and was never allowed to enter the house and he
worked daily from 5:00 to 9:00 in the morning. 5

During trial, the prosecution presented evidence to prove the following:

Private complainant Vedua maintains seventy-five (75) dogs at her compound in Caridad, Cavite
City.  To assist her in feeding the dogs and cleaning their cages, private complainant employed the
6

accused who would report for work from 6:00 a.m. to 5:30 p.m.  On October 19, 2006, at around
7

6:30 in the morning, accused arrived for work. Half an hour later or at 7 o’clock, private complainant
left for Batangas. Before leaving, she locked the doors of her house, and left the accused to attend
to her dogs. Later, at around 7:00 in the evening, private complainant arrived home, entering through
the back door of her house. As private complainant was about to remove her earrings, she noticed
that her other earrings worth PhP 25,000 were missing. She then searched for the missing earrings
but could not find them. 8

Thereafter, private complainant also discovered that her jacket inside her closet and her other pieces
of jewelry (rositas) worth PhP 250,000 were also missing. A Gameboy (portable videogame
console), a compact disc player, a Nokia cellular phone and a Nike Air Cap were likewise missing.
The total value of the missing items supposedly amounted to PhP 297,800. Private complainant
immediately checked her premises and discovered that the main doors of her house were
destroyed.  A plastic bag was also found on top of her stereo, which was located near the bedroom.
9

The plastic bag contained a t-shirt and a pair of shorts later found to belong to accused.
10
Witness Nimfa Sarad, the laundrywoman of Vedua’s neighbor, testified seeing Viray at Vedua’s
house at 6:00 a.m. By 11:00 a.m., she went out on an errand and saw Viray with an unidentified
male companion leaving Vedua’s house with a big sack. 11

Another witness, Leon Young, who prepares official/business letters for Vedua, testified that he went
to Vedua’s house between 10:00 and 11:00 am of October 19, 2006 to retrieve a diskette and saw
petitioner with a male companion descending the stairs of Vedua’s house. He alleged that since he
knew Viray as an employee of private complainant, he simply asked where Vedua was. When he
was told that Vedua was in Batangas, he left and went back three days after, only to be told about
the robbery. 12

Prosecution witness Beverly Calagos, Vedua’s stay-out laundrywoman, testified that on October 19,
2006, she reported for work at 5:00 a.m. Her employer left for Batangas at 7:00 am leaving her and
petitioner Viray to go about their chores. She went home around 8:30 a.m. leaving petitioner alone in
Vedua’s house. Meanwhile, petitioner never reported for work after that day. 13

For his defense, Viray averred that he did not report for work on the alleged date of the incident as
he was then down with the flu. His mother even called up Vedua at 5:30 a.m. to inform his employer
of his intended absence. Around midnight of October 20, 2006, Vedua called Viray’s mother to report
the loss of some valuables in her house and alleged that Viray is responsible for it. Petitioner’s sister
and aunt corroborated his version as regards the fact that he did not go to work on October 19, 2006
and stayed home sick. 14

After the parties rested their respective cases, the trial court rendered a Decision dated December 5,
2009, holding that the offense charged should have been robbery and not qualified theft as there
15

was an actual breaking of the screen door and the main door to gain entry into the house.  Similarly,
16

Viray cannot be properly charged with qualified theft since he was not a domestic servant but more
of a laborer paid on a daily basis for feeding the dogs of the complainant. 17

In this light, the trial court found that there is sufficient circumstantial evidence to conclude that Viray
was the one responsible for the taking of valuables belonging to Vedua.  Hence, the RTC found
18

petitioner Viray guilty beyond reasonable doubt of robbery and sentenced him, thus:

WHEREFORE, in view of the foregoing considerations, the Court finds the accused RYAN VIRAY
GUILTY beyond reasonable doubt for the crime of robbery and hereby sentences him to suffer the
indeterminate imprisonment ranging from FOUR (4) years, TWO (2) months and ONE (1) day of
prision correccional, as minimum, to EIGHT (8) years of prision mayor, as maximum.

SO ORDERED. 19

Aggrieved, petitioner elevated the case to the CA.

The appellate court found that the Information filed against Viray shows that the prosecution failed to
allege one of the essential elements of the crime of robbery, which is "the use of force upon things."
Thus, to convict him of robbery, a crime not necessarily included in a case of qualified theft, would
violate the constitutional mandate that an accused must be informed of the nature and cause of the
accusation against him. 20

Nonetheless, the CA held that a conviction of the accused for qualified theft is warranted considering
that Viray enjoyed Vedua’s confidence, being the caretaker of the latter’s pets. Viray committed a
grave abuse of this confidence when, having access to the outside premises of private complainant’s
house, he forced open the doors of the same house and stole the latter’s personal belongings.  In its
21

assailed Decision, the appellate court, thus, modified the ruling of the trial court holding that the
accused is liable for the crime of qualified theft.

As to the penalty imposed, considering that there was no independent estimate of the value of the
stolen properties, the CA prescribed the penalty under Article 309(6)  in relation to Article 310  of the
22 23

Revised Penal Code (RPC).  The dispositive portion of the assailed Decision reads, viz:
24

WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The appealed
Decision of the court a quo is hereby AFFIRMED with MODIFICATION that the accused-appellant
be convicted for the crime of QUALIFIED THEFT and is hereby sentenced to suffer indeterminate
imprisonment of four (4) months and one (1) day of arresto mayor , as minimum, to two (2) years,
four (4) months and one (1) day of prision correccional , as maximum. The appellant is also ordered
to return the pieces of jewelry and other personal belongings taken from private complainant. Should
restitution be no longer possible, the accused appellant must pay the equivalent value of the
unreturned items.

SO ORDERED. 25

When the appellate court, in the adverted Resolution of January 7, 2013,  denied his motion for
26

reconsideration,  Viray interposed the present petition asserting that the CA committed a reversible
27

error in finding him guilty. Petitioner harps on the supposed inconsistencies of the testimonies of the
prosecution witnesses in advancing his position that the evidence presented against him fall short of
the quantum of evidence necessary to convict him of qualified theft. 28

In the meantime, in its Comment  on the present petition, respondent People of the Philippines
29

asserts that the alleged inconsistencies in the testimonies of the prosecution witnesses are so
insignificant and do not affect the credibility and weight of their affirmation that petitioner was at the
crime scene when the crime was committed. In fact, these minor inconsistencies tend to strengthen
30

the testimonies because they discount the possibility that they were fabricated.  What is more, so
31

respondent contends, these positive testimonies outweigh petitioner’s defense of denial and alibi. 32

In resolving the present petition, We must reiterate the hornbook rule that this court is not a trier of
facts, and the factual findings of the trial court, when sustained by the appellate court, are binding in
the absence of any indication that both courts misapprehended any fact that could change the
disposition of the controversy. 33

In the present controversy, while the CA modified the decision of the trial court by convicting
petitioner of qualified theft rather than robbery, the facts as found by the court a quo were the same
facts used by the CA in holding that all the elements of qualified theft through grave abuse of
confidence were present. It is not, therefore, incumbent upon this Court to recalibrate the evidence
presented by the parties during trial.

Be that as it may, We find it necessary to modify the conclusion derived by the appellate court from
the given facts regarding the crime for which petitioner must be held accountable.

Art. 308 in relation to Art. 310 of the RPC describes the felony of qualified theft:

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.
 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 the plantation, fish taken from a
fishpond or fishery or property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance. (Emphasis supplied.)

The crime charged against petitioner is theft qualified by grave abuse of confidence. In this mode of
qualified theft, this Court has stated that the following elements must be satisfied before the accused
may be convicted of the crime charged:

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. 34

As pointed out by both the RTC and the CA, the prosecution had proved the existence of the first
four elements enumerated above beyond reasonable doubt.

First, it was proved that the subjects of the offense were all personal or movable properties,
consisting as they were of jewelry, clothing, cellular phone, a media player and a gaming device.

Second, these properties belong to private complainant Vedua. Third, circumstantial evidence
places petitioner in the scene of the crime during the day of the incident, as numerous witnesses
saw him in Vedua’s house and his clothes were found inside the house. He was thereafter seen
carrying a heavy-looking sack as he was leaving private complainant’s house. All these
circumstances portray a chain of events that leads to a fair and reasonable conclusion that petitioner
took the personal properties with intent to gain, especially considering that, fourth, Vedua had not
consented to the removal and/or taking of these properties.

With regard to the fifth and sixths elements, however, the RTC and the CA diverge in their respective
Decisions.

The RTC found that the taking committed by petitioner was not qualified by grave abuse of
confidence, rather it was qualified by the use of force upon things. The trial court held that there was
no confidence reposed by the private complainant on Viray that the latter could have abused. In fact,
Vedua made sure that she locked the door before leaving. Hence, Viray was compelled to use force
to gain entry into Vedua’s house thereby committing the crime of robbery, not theft.

The CA, on the other hand, opined that the breaking of the screen and the door could not be
appreciated to qualify petitioner’s crime to robbery as such use of force was not alleged in the
Information. Rather, this breaking of the door, the CA added, is an indication of petitioner’s abuse of
the confidence given by private complainant. The CA held that "[Viray] enjoyed the confidence of the
private complainant, being the caretaker of the latter’s pets. He was given access to the outside
premises of private complainant’s house which he gravely abused when he forced open the doors of
the same house and stole the latter’s belongings."  Committing grave abuse of confidence in the
35

taking of the properties, petitioner was found by the CA to be liable for qualified theft.

This Court is inclined to agree with the CA that the taking committed by petitioner cannot be qualified
by the breaking of the door, as it was not alleged in the Information. However, we disagree from its
finding that the same breaking of the door constitutes the qualifying element of grave abuse of
confidence to sentence petitioner Viray to suffer the penalty for qualified theft. Instead, We are one
with the RTC that private complainant did not repose on Viray "confidence" that the latter could have
abused to commit qualified theft.

The very fact that petitioner "forced open" the main door and screen because he was denied access
to private complainant’s house negates the presence of such confidence in him by private
complainant. Without ready access to the interior of the house and the properties that were the
subject of the taking, it cannot be said that private complaint had a "firm trust" on petitioner or that
she "relied on his discretion"  and that the same trust reposed on him facilitated Viray’s taking of the
36

personal properties justifying his conviction of qualified theft.

To warrant the conviction and, hence, imposition of the penalty for qualified theft, there must be an
allegation in the information and proof that there existed between the offended party and the
accused such high degree of confidence  or that the stolen goods have been entrusted to the
37

custody or vigilance of the accused.  In other words, where the accused had never been vested
38

physical access to,  or material possession of, the stolen goods, it may not be said that he or she
39

exploited such access or material possession thereby committing such grave abuse of confidence in
taking the property. Thus, in People v. Maglaya,  this Court refused to impose the penalty prescribed
40

for qualified theft when the accused was not given material possession or access to the property:

Although appellant had taken advantage of his position in committing the crime aforementioned,

We do not believe he had acted with grave abuse of confidence and can be convicted of qualified
theft, because his employer had never given him the possession of the machines involved in the
present case or allowed him to take hold of them, and it does not appear that the former had any
special confidence in him. Indeed, the delivery of the machines to the prospective customers was
entrusted, not to appellant, but to another employee.

Inasmuch as the aggregate value of the machines stolen by appellant herein is P13,390.00, the
crime committed falls under Art. 308, in relation to the first subdivision of Art.309 of the Revised
Penal Code, which prescribes the penalty of prisión mayor in its minimum and medium periods.  No 1âwphi1

modifying circumstance having attended the commission of the offense, said penalty should be
meted out in its medium period, or from 7 years, 4 months and 1 day to 8 years and 8 months of
prisión mayor. The penalty imposed in the decision appealed from is below this range. (Emphasis
and underscoring supplied.)

The allegation in the information that the offender is a laborer of the offended party does not by itself,
without more, create the relation of confidence and intimacy required by law for the imposition of the
penalty prescribed for qualified theft.  Hence, the conclusion reached by the appellate court that
41

petitioner committed qualified theft because he "enjoyed the confidence of the private complainant,
being the caretaker of the latter’s pets" is without legal basis. The offended party’s very own
admission that the accused was never allowed to enter the house where the stolen properties were
42
kept refutes the existence of the high degree of confidence that the offender could have allegedly
abused by "forcing open the doors of the same house." 43

Without the circumstance of a grave abuse of confidence and considering that the use of force in
breaking the door was not alleged in the Information, petitioner can only be held accountable for the
crime of simple theft under Art. 308 in relation to Art. 309 of the RPC.

As for the penalty, We note with approval the observation made by the appellate court that the
amount of the property taken was not established by an independent and reliable estimate. Thus,
the Court may fix the value of the property taken based on the attendant circumstances of the case
or impose the minimum penalty under Art. 309 of the RPC.  In this case, We agree with the
44

observation made by the appellate court in accordance with the rule that "if there is no available
evidence to prove the value of the stolen property or that the prosecution failed to prove it, the
corresponding penalty to be imposed on the accused-appellant should be the minimum penalty
corresponding to theft involving the value of P5.00."  Accordingly, We impose the prescribed penalty
45

under Art. 309(6) of the RPC, which is arresto mayor in its minimum and medium periods. The
circumstance of the breaking of the door, even if proven during trial, cannot be considered as a
generic aggravating circumstance as it was not alleged in the Information.  Thus, the Court finds that
46

the penalty prescribed should be imposed in its medium period, that is to say, from two (2) months
and one (1) day to three (3) months of arresto mayor.

Lastly, We delete the order for the reparation of the stolen property. Art. 2199 of the Civil Code is
clear that one is entitled to an adequate compensation only for such pecuniary loss suffered by him,
as he has duly proved. Since, as aforesaid, the testimony of the private complainant is not sufficient
to establish the value of the property taken, nor may the courts take judicial notice of such testimony,
We cannot award the reparation of the stolen goods. 47

WHEREFORE, the C Decision of August 31, 2012 in CA-G.R. CR No. 33076 is AFFIRMED with
MODIFICATION. Petitioner Ryan Viray is found GUILTY beyond reasonable doubt of SIMPLE
THEFT and is sentenced to suffer the penalty of imprisonment for two (2) months and one (1) day to
three (3) months of arresto mayor. Further, for want of convincing proof as to the value of the
property stolen, the order for reparation is hereby DELETED.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

ROBERTO A. ABAD
Associate Justice

JOSE PORTUGAL PEREZ* JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13 A1iicle VIII of the Constitution and the Division Chairperson s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P A SERENO

Chief Justice