8446 OFFICIAL GAZETTE Vou. 45, No. 8 to show that his possession is not inconsistent with his innocence; in other words, he must explain the origin and nature of his possession (U. S. vs. Aleantara 15 Phil., 202; U. §. vs. Catimbang 85 Phil., 367; U. S. vs. Mohamad Ungal 87 Phil. 835). In the case before us the theft or Joss was duly proven and part of the stolen property— two tires of the jeep—were found in appellant's tailoring shop. He having presented no evidence to deny these facts or to explain the origin and character of his possession of the tires, the inference against him stands. It is argued that the rule we are here applying virtually amounts to compelling the accused to take the witness stand and give evidence against himself. This is not true. The rule merely gives him an opportunity to submit evidence in his behalf after the prosecution has made out a prima facie case. If he submits no evidence to rebut’ that of the prosecution, his conviction would rest upon the latter evidence and not upon his refusal to testify. The appellant contends that the tires found in the tailor- ing shop were neither identified to be the original tires of the stolen jeep nor were they presented in evidence. As to the first point, we have already said that it has been satisfactorily proven that Orate identified and recognized the tires aforesaid as belonging to his jeep. On the other hand, there being in the record sufficient proof of the corpus delicti, it was not absolutely necessary to present the jeep or the tires as part of the evidence for the prosecu- tion. The Solicitor General invites attention to the failure of the prosecution to prove the value of the stolen jeep. In the absence of evidence of its true value the Court, must assume that it is worth, at least, P5 (U.S. 0s. Galanco 11 Phil, 575). Therefore, the penalty corresponding to the crime charged and proven is the one provided in article 309, paragraph 6 of the Revised Penal Code, namely, arresto mayor ‘in its minimum and medium degrees, and there being no modifying circumstance to consider the same should be imposed in its medium degree. Wherefore, the appealed judgment is hereby affirmed with the modification that the appellant should be, as he is hereby, sentenced to suffer two (2) months and one (1) day of arresto mayor, with costs. Montemayor, Pres. J., and Concepeién, J., concur. Judgment modified. [No, 924-R, February 18, 1948] ‘THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. ROBERTO DINO y ROMERO, defendant and appellant 4.CRIMINAL LAW; THEFT; CONFIDENCE, ABSENCE OF. ‘when he took Toot from the depot, the eleient of eonfidends ie not involved.Aucust, 1949 OFFICIAL GAZETTE ea committed is, therefore, not qualified but! simple) (People vs. De Leon, 43 Off Gaz., No. 6, p. 2201; People vs. Celis, 42 Off. Gaz., No. 11, p. 2845). ; Ip; Frusrrateo Tuner; Cast at BaR—In the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the MP check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before th control and apa!’ of the lvtero ho fut cannoli) ot ‘Goat iemanton'of tee gma The saee"eomntel at of frustrated and not consummat emis isthe ailey of tlio of the articles stolen, even if it were more or less momentary. To this effect is the decision of the Supreme Court of Spain of January 24, 1888, 8.ID.; Ib. PARtciatioN oF AccuseD 1s HELD 70 BE THAT OF PRIN- ‘CIPAL.—As the offense committed was only that of frustrated theft, the passing of the truck beyond the check point away from the control of the guards being essenti complete aes of the crime, it is evident that herein not as an accomplice, but having himself carried the articles in the truck, and the act of carry- ing the articles through the check point being an indispensable part of the full and complete execution of the offense. APPEAL from a judgment of the Court of First Instance of Manila. De la Rosa, J. The facts are stated in the opinion of the court. Jose Ciria Cruz for appellant. Assistant Solicitor-General Alvendia and Solicitor Abad Santos for appellee. 2b, LasRrabor, J.: This is an appeal from a judgment of the Court of First Instance of Manila’ (@ccomplicé)in the and sentencing him to suffer an indeterminate penalty of not less than three months and eleven days of arresto mayor nor more than one year, eight months, and twenty-one days of _ prisiém correccional, with the accessory penalties imposed by law, and to pay the costs. ‘The evidence shows that the appellant herein, Roberto. was, on June 20, 1946, employed as a with station at General Depot, APO 75, Quezon City. In the evening of that day, at about 11:30,he brought to the 670th Medium Port, Port Area No. 8, South Harbor, Manila, (iiticlesy which were all unloaded from the truck by the gang employed therein by the United States Army. es fle, he drove away his truck from the Por ut as he was nearing an MLP. check point, a colored M.P. guard approached the truck and four therei Gifles) The colored guard go 34478448 OFFICIAL GAZETTE Vou. 45, No. 8 towards the check point and upon arriving there, a lieu- tenant of the United States Army, then on duty as officer of the guards, came, and upon seeing the three boxes in the truck, the appellant said that: to the foreman and the said lieutenant went e and thereafter th at the Medium Port, but all of them denied having) ‘The foreman and his gang were then allowed to speal the appellant, The appel- lant was then subjected to an investigation by the army investigator, and the appellant signed a written statement resented in court as Exhibit A, in which he declares that in the truck and thereafter told him to bring them oub of the area, after he had passed the check point, and that qa to bring the articles, because he had been tol at the four persons would answer therefor, and that ‘they were to give him a certain the articles. The above facts are sufficiently established by the tes- timonies of the lieutenant who put the appellant under arrest and the investigator who had taken his written statement, Exhibit A. But (at the trial the appellant n declared that, and that he had carried in his truck, in his way and motioned him to that believing that they just wanted to get a ride, he stopped his truck, but then and there a caval Fan EEL GREAT a, so that (he allowed) in his truck; that the loot, but that ie efusel, saying that he was earning enough for his expenses; that while they were talking, a colored guard approached, flashed his light on them, and that thereupon the four men who had accosted him ran away; that the colored guard flashed his light around and saw the three boxes on the way, and so he asked the appellant to help him on the truck, which he did; that thereafter the \d drove the truck to the check point, where immediately thereafter the: lieutenant of the guards AS to his signed statement, Exhibit ie declared that the (Anvestizator wrote somethingion « piece of paper, which was then read to the appellant, and a8/hé refused to Sign) %, the QIVERESIDENDONGAIN on the stomach and told him that if he did not sign it he would rot in prison. The and that if this consent was realy obtained through fear, he could have given an account thereof to the guard at “ ” oAucust, 1949 OFFICIAL GAZETTE 3449 the check point, and for this reason the lower court refused to believe the explanation given by the appellant and found him guilty as already indicated. On this appeal it is contended on behalf of the lant that the , secured without violence or fraud; that it er: in_the truck of the accused; there being no rebuttal evidence on the part of the prosecution, and that the trial court erred in finding the accused guilty and sentenc- ing him. The investigator who took the statement, Exhibit A, was presented in court to testify thereon, and he declared that the statement was taken in the presence of many people, and that thereafter it was taken to the assistant provost marshal for signature under oath. is difficul at the appellant could have been given the “third degree” before he signed the statement, in view of the presence of many spectators at the time of the investigation. If he had been forced to sign the statement, he could have im- mediately informed the assistant provost marshal of this fact at the time that the paper was brought to the said officer for the signature of the appellant. Besides, the mentioned the ay ‘as probable that he had no other alternative but to admit that the articles were loaded in his truck with his consent. The claim that the statement was not made voluntarily by the appellant is, therefore, The claim that the boxes were found on the way and were loaded in the truck by the colored guard with the help of the appellant is contrary to appellant’s own volun- tary statement, Exhibit A. It is unfortunate that the and we are left to conjecture as to what really happened. However, the and investigation, as it did in this case. Besides, the idea that the articles were found on the way and were loaded by the colored guard with the assistance of the accused is evi- dently a new invention of the appellant, for neither at the time he was questioned by the lieutenant of the guards, nor at the time that he was being investigated, YY mention such a fact. The court, therefore, finds (Gower court didjnotjerr)in refusing to believe the story of ‘o2—193450 OFFICIAL GAZETTE the accused that the boxes were on the way and wore merely loaded_in ck with the help of the latter. contrary to Gx or confession, Exhibit A, and contrary to the His testimony in court was not corroborated by a er witness or by any other fact or circumstance sufficiently proved at the trial. The information charges the appellant with the crime of @ialified||thefb)and the court « ano sentenced him for the said crime. The evidence submitted, however, (fails) that he was driving. and that the three box the truck when it had already left the depot and was on its way out to the check point. There was, therefore, (HO) GEES the appellant being a mere laborer when he took part in taking away the said loot from the depot. The erite committed is, therefore ‘not) ELE eople vs. De Leon, 43 Off. Gaz., No. 6, p. 2201; People vs. Celis, 42 Off. Gaz. No. 11, p. 2845). Two other points remain to be considered, namely, the and the extent) erein of the appellant. The evidence shows that the boxes were loaded while the truck was on its way out of the depot towards the check point, which was then a hundred meters away. While it is true that, according to the appellant, there was another way out of the depot, which was at the back, the evident intention of the offenders was Gal eiaea BORER ESOL (polit, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further investiga- tion or checking. Under these circumstances, it can not be stated that the crime of theft had been fully consum- mated, for of the articles stolen, even if it were more or less momentary. To this effect is the decision of the Supreme Court of Spain of January 24, 1888: “CGonsiderando que para que el apoderamiento de la cosa sustraida sea determinante de la consumacién del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicién de aquella, siquiera sea més 0 menos momenténea- mente, pues de otra suerte, dado el concepto del delito de hutto, no puede decirse en realidad que se haya producido en toda su exten- sién, sin materializar:demasiado el acto de tomar la cosa ajena, * 4 (1 Viadé pp. 108-104). ”Aucust, 1949 OFFICIAL GAZETTE This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, , but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, as it was frustrat y the timely intervention o! i. ‘The offense committed, therefore, is that of (frustrated) The ‘Hal GOUEP found the appellant herein (guilty a) in the consummated crime. However, as this court has found that the offense committed was only that of frustrated theft, e. away from the control of the guards being essential to the complete consummation of the crime, ‘it is evident that ici] not as an accomplice, but aving carried the articles in the truck, and the act of carrying the articles through the check point being an indispensable part of the full and complete execution of the offense. For all the foregoing considerations, the judgment ap- pealed from is hereby modified, and ‘neqmpeaamiaitoeaty ((auilty 48 priticipal of the crime of frustrated theft, an: he is hereby sentenced to suffer the penalty of not less than 8 months and 11 days of arresto mayor, nor more than 1 year, 8 months, and 21 days of prisién correccional, with the accessories provided by law, and to pay the costs. So ordered. Paredes and Abad Santos, JJ., concur. Judgment modified. [No. 424-R. February 25, 1948] ‘THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, ys. ATILANO ALCANTARA, defendant and appellant: Crmitnat Law; Homtcipe; TREACHERY; CIRCUMSTANCE OF TREACHERY ‘PROVEN BUT NOT ALLEGED IN CoMPLADNT, TTS EFFECT; CASE AT Bar—-When a man without any warning and in the dark shoots another just awakened at three o'clock in the morning, and just getting out of bed and unable to defend bimself, much jess to offer a fight, the aggression is undoubtedly treacherous. s + © © % Although this cireumstance of treachery is proven, inasmuch as it was not expressly alleged in the com- plaint, it may be used only as an aggravating cireumstance Dut not to qualify the killing as murder. APPEAL from a judgment of the Court of First Instanee of Manila. Pefia, J. ‘The facts are stated in the opinion of the court. Leonides de Leon for appellant. First Assistant Solicitor-General Gianzon and Solicitor Torres for appellee.