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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

163705 July 30, 2007

NOMER OCAMPO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION TINGA, J.: On 22 May 1996, petitioner Nomer Ocampo, Elmer Miranda, and Danilo Cruz were charged with the crime of robbery with physical injuries. The Information reads: That on or about the 14th day of November 1995, at around 8:15 oclock in the evening, in Barangay San Nicolas I, Municipality of Magalang, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually

helping one another, did then and there willfully, unlawfully and feloniously, with intent of gain and by means of force and intimidation grab one Rommel Q. Misayah by the neck and armed with a bladed weapon attack the latter, inflicting upon him physical injuries which required and did require medical attendance, and on the occasion thereof, accused in furtherance of their intent to gain did then and there willfully, unlawfully and feloniously take, steal and carry away with them the following, to wit: a) One (1) Icom radio . . . P4,500.00 b) Two (2) T-shirts . . . 350.00 c) A pair of maong pants . . . 345.00 d) A clutch bag . . . 150.00 e) Cash . . . 29,000.00 with a total value of THIRTY FOUR THOUSAND THREE HUNDRED FORTY FIVE (P34,345.00) PESOS, Philippine Currency, belonging to and owned by the said Rommel Q. Misayah, to the damage and prejudice of the owner, in the afore-said [sic] amount. CONTRARY TO LAW.1

Records show that there was an Amended Information2 dated 17 July 1996 changing the crime charged to Robbery with Violence and Intimidation against all of the accusedOcampo, Cruz and Miranda. Arraignment ensued on 19 July 19963 where all of the accused pleaded not guilty. Accused Cruz jumped bail during the pendency of the trial and was tried in absentia.4 The prosecution presented and offered the testimony of Rommel Q. Misayah and several documentary evidence. Misayah testified that on 14 November 1995, at around 8:10 p.m., he was walking along San Nicolas Street on his way home when three male individuals approached him.5 As the place was sufficiently lighted by a nearby post, he was able to identify the trio as accused Cruz, Ocampo and Miranda. When the three accused were already near him, Cruz grabbed Misayahs neck and choked him while Miranda held his shoulder and got his shoulder bag.6 Ocampo meanwhile was in the middle, holding a knife, warning him not to fight back. Sensing that he would be harmed anyway, Misayah fought back by pushing the hands of the accused and trying to parry their blows. He and Cruz then fell on the ground with Cruz on top of him. When the handle of his shoulder bag snapped, all of the accused ran away with the shoulder bag.7 By reason of the incident, Misayah sustained wounds in his hands caused by the bladed weapon held by Ocampo when he

attempted to evade Ocampos blows.8 The shoulder bag taken from Misayah contained the items enumerated in the aforequoted Information. At the nearby Municipal Hall, Misayah reported the incident to Police Officers de Leon, Mon Mendoza, and Catalino Mutuc.9 Misayah was brought to Balitucan Emergency Hospital for treatment and thereafter proceeded to the precinct. After further investigation, he then executed a statement before Sr/Insp. Catalino Mutuc and SPO4 de Leon.10 In their defense, accused Ocampo, Miranda, and another witness, Oliver Santos, gave their version of what happened that night. Miranda testified that he was with Ocampo in the afternoon of 14 November 1995 to accompany the latter to borrow a wheelbarrow from a certain Lut Ocampo.11 Miranda and Ocampo played chess until 6:00 in the evening at Lut Ocampos place while waiting for him to arrive. As they were leaving that place, they met Cruz. Instead of proceeding home, Ocampo invited Miranda for a drink at an establishment identified as "Irmas" and Cruz went along with them. That was already about 7:30 in the evening. While on their way to Irmas, Cruz and Misayah "bumped each other and had an altercation."12 Then Miranda informed his companions that he would go ahead. Miranda was about one yard away from Cruz and

Misayah when he saw Cruz strangle Misayah. Claiming that he did not want to get into trouble, he did not pacify Cruz and Misayah. He hurriedly left and proceeded to Sally Felicianos house and stayed there until 11:00 in the evening. As he was in a hurry to leave the incident where the altercation happened, he did not notice what happened to Ocampo.13 Ocampo, on his behalf, testified that he knew Misayah who has a drug store in Magalang, Pampanga. At about 8:00 p.m. of 14 November 1995, he was walking with Miranda and Cruz on their way to Vannies Restaurant when Cruz crossed the street and approached Misayah.14 Ocampo and Miranda continued walking when Ocampo saw Cruz choke Misayah and then have an exchange of fist blows. Ocampo and Miranda did not assist Cruz as it was only a brief fist fight. Ocampo saw Cruz run away while he and Miranda were left behind. Ocampo and Miranda saw Misayah run towards the Municipal Hall and the two proceeded to their respective homes.15 Defense witness Oliver Santos who knew the three accused testified that on the evening of 14 November 1995, he was at Vannies videoke having a drinking spree with his friends. At 9:00 p.m., he asked leave from his friends to go ahead. While waiting for a motorcycle ride outside of Vannies videoke, he saw Cruz and Misayah, whom he knew as the owner of a drug store, acting as if they were strangling each other. The fight took about a minute. He did not bother to do anything because he was afraid and also

because fighting was a common incident in that area.16 Santos was somewhat inebriated when he witnessed the incident as he had consumed one (1) pitcher of draft beer. However, he still recognized the faces of Misayah and Cruz. On that occasion, he also saw Ocampo and Miranda walking towards the town proper.17 All three accused were convicted by the trial court in a decision18 dated 31 May 2000, which held: WHEREFORE, finding the three (3) accused, Danilo Cruz, Nomer Ocampo and Elmer Miranda @ Mitoy guilty beyond reasonable doubt of the crime of Robbery with Physical Injuries defined and penalized under Article 294 (5) of the Revised Penal Code, with the presence of an aggravating circumstance of conspiracy, they are hereby sentenced to suffer each an imprisonment in an indeterminate penalty of from [sic] eight (8) years to twenty one (21) days of prision mayor, as minimum, to ten (10) years of prision mayor, as maximum, and to indemnify the complainant Rommel Q. Misayah the amount of P34,345.00 without subsidiary imprisonment in case of insolvency. SO ORDERED. Ocampo and Miranda appealed their conviction to the Court of Appeals. However, in its decision19 dated 10 February 2004, the

Court of Appeals affirmed with modification the trial courts decision, stating thus: As to the penalty, the crime of robbery with violence against persons is penalized under par. 5, Article 294 of the Revised Penal Code by prision correccional maximum to prision mayor medium. Considering the attendant aggravating circumstance of abuse of superior strength (not conspiracy as ruled by the trial court), which is not offset by any mitigating circumstance, the penalty should be imposed in its maximum period, which is prision mayor medium or from eight (8) years and one (1) day to ten (10) years. Applying the Indeterminate Sentence Law, the minimum of the imposable penalty shall be the penalty next lower in degree which is arresto mayor maximum to prision correccional medium, in any of its periods, or from four (4) months and one (1) day to four (4) years and two (2) months. Thus, appellants should have been meted the indeterminate penalty of from [sic] 4 years and two months of prision correccional, as minimum, to eight (8) years of prision mayor medium, as maximum. WHEREFORE, the judgment appealed from is hereby AFFIRMED with the MODIFICATION that the accused-appellants are hereby sentenced to suffer the indeterminate penalty of from [sic] four (4) years and two months of prision correccional, as minimum to eight (8) years of prision mayor, as maximum. Costs against appellants,

SO ORDERED.20 Miranda did not challenge the affirmance of his conviction by the Court of Appeals. On the other hand, Ocampo filed a Motion for Reconsideration21 which was denied through a Resolution dated 20 May 2004.22 Ocampo alone then filed the present Petition for Review on Certiorari.23 Ocampo argues that the appellate court erred in finding him criminally liable because: (i) Misayahs testimony was uncorroborated; (ii) it was unbelievable that Misayah would just walk on a slightly lighted street when he is carrying a considerable amount of cash and other items; (iii) there was no clear record that the prosecution presented any of the police officers who apprehended and investigated petitioner; (iv) the court failed to give credence to the testimony of Santos simply because he was tipsy; (v) although Misayah claimed that he had been grabbed by the neck, his medical certificate does not show any injury on the neck or on the arm to confirm if he was indeed held by Miranda on that part of his body; (vi) the examining doctor was not presented to confirm the authenticity of the issued medical certificate and to be cross-examined thereon; and (vii) it is very unlikely that Misayahs shoulder bag could accommodate all the items he claimed to have been contained therein. In sum, petitioner reiterates that the prosecution failed to prove that he is guilty beyond reasonable doubt of the crime for which he is being charged.

Before proceeding to the merits of this case, certain observations from the trial and appellate courts decisions have to be clarified. The initial information filed by the prosecution in this case designated the offense charged as Robbery with Physical Injuries.24 This was later amended to Robbery with Violence and Intimidation.25 Yet, the trial courts decision convicted the accused of Robbery with Physical Injuries under Article 294 (5) of the Revised Penal Code. The appellate court, on the other hand, affirmed the conviction under Article 294 (5) but classified the crime as robbery with violence against persons. The variance in the assigned nomenclatures may give rise to the false impression that robbery with physical injuries under Article 294 (5) of the Revised Penal Code is distinct from robbery with intimidation as well as robbery with violence against persons. The title or heading of Article 294 reads "Robbery with violence against or intimidation of persons." Said heading is clearly the general nomenclature given to all five (5) types of robbery enumerated thereunder.26 Paragraphs 2 to 5 cover robbery with physical injuries.27 Paragraph 5, in particular, defines what is known as simple robbery. Simple robbery involves only slight or less serious physical injuries.28 For conviction under this paragraph, the injury inflicted should not fall within the categories provided for in paragraphs 1 to 4 of Article 294. Thus, over and above the

dichotomy of the terms employed, it is certain and beyond dispute that the three accused were tried for the crime under Article 294 (5) of the Revised Penal Code. Now, to the merits. The core of Ocampos arguments in this instant petition is that the findings of the appellate court do not conform to the evidence on record. It should be emphasized that factual matters cannot be raised in a petition for review on certiorari before the Court as this Court is limited to reviewing only questions of law.29 The findings of fact of the trial court are binding upon this Court when affirmed by the Court of Appeals.30 Exceptions to this rule are when the findings of fact of the Court of Appeals are contrary to the findings and conclusions of the trial court, or are not supported by the evidence on record.31 Absent any ground to apply the exception to this instant case, there is no reason, therefore, to disturb the findings of the lower courts. Petitioner claims it was erroneous for the appellate court to give credence to Misayahs uncorroborated evidence because it failed to establish where his money and other valuables came from and his injuries did not conform to the nature of the attack made on him as well. Based on the records, we cannot see how and why the questions raised by petitioner can cast doubt on the credibility of the

testimony of Misayah. As Misayah owns a drug store, it is not unlikely that Misayah would have P29,000.00 cash in his possession as he returned home from a days work. With respect to the injuries suffered by Misayah, he stated in his cross examination that he tried to parry the blows made by all the accused by the use of his hands.32 Thus, it is believable that his hands would bear the brunt of the blows. Further, Miranda himself admitted during his direct examination that he "personally saw" Cruz strangle Misayah.33 Moreover, we give weight to the trial courts observation that Misayah testified "in a straightforward manner" and positively identified not only Cruz as the one who choked him but also the other two (2) accused.34 The testimony of a sole witness, though uncorroborated, is sufficient for conviction if it is free from any sign of impropriety or falsehood.35 The testimony of a lone eyewitness, if found positive and credible by the trial court, is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward manner.36 Indeed, the testimony of a single witness is sufficient and needs no corroboration, save only in offenses where the law expressly prescribes a minimum number of witnesses.37

On the lower courts disregard of defense witness Santoss testimony, we have consistently held that where the credibility of witnesses is an issue, the appellate court will generally not disturb the findings of the trial court unless some facts and circumstances may have been overlooked that may otherwise affect the result of the case.38 The Court accords deference to the trial courts appraisal on a witnesss credibility, or lack thereof, because of its superior advantage in observing the conduct and demeanor of the witness while testifying.39 Given that the observation of the trial court with respect to Santos is supported by evidence, there is no ground to discredit the trial and appellate courts assessment of Santoss testimony. Petitioner likewise alleges that Misayahs testimony was filled with inconsistencies such as his allegation that he immediately executed an affidavit after the incident when in fact his affidavit was dated 20 November 1995 or six days after the incident. However, it is not beyond reason if a victim like Misayah would immediately report the incident but subsequently make a sworn statement days after the incident especially when the victim, as did Misayah, suffered injuries requiring medical attention. Moreover, the RTC records also show that Misayah executed a separate sworn statement before SPO1

Mutuc, investigator of Magalang Police Station, on 16 November 199540 and the prosecution submitted another affidavit by Misayah taken before SPO2 Rivera41 in its formal offer of evidence. It is not unlikely, therefore, that several affidavits were in fact executed by Misayah in the days immediately following the incident. Even as petitioner challenges the evidence of the prosecution, he downplays the inconsistencies of the testimonies of the witnesses for the defense. Said inconsistencies, particularly on the witnesses accounts of what proceeded after the incident, are material and have rendered their testimonies implausible. It is hard to believe that there was a mere lapse of memory of either Miranda or Ocampo on whether they were indeed left behind together or whether one of them fled and the other was left behind even before the departure of Cruz.42 Certainly, one cannot fail to observe or at least recall later who was with whom considering the gravity of the incident and the fact that only three of them were together that evening. More fundamentally, the defenses version of the incident is contrary to human experience and behavior. As correctly pointed out by the trial court: It is incredible that accused Nomer Ocampo and Elmer Mirand[a] have not done anything when their companion Danilo Cruz was in

a fight with complainant. The least they could do was to pacify the two protagonists yet, they did not do this and they proceeded to go to their respective way home as if nothing has happened. If indeed the incident happened so fast and that the accused Danilo Cruz and complainant Rommel Misayah separated immediately after that "sudden strangling" of each other" [sic], the least that Ocampo and Miranda could do [sic] was to wait and ask Cruz what happened. Yet, again, they did not do this. x x x x43 Evidence, to be believed, must not only proceed from the mouth of a credible witness but must be credible in itself, such that the common experience and observation of mankind can show it as probable under the circumstances.44 And, the best test of the credibility of a testimony is its compatibility with human knowledge, observation and common experience of man.45 Whatever is repugnant to these standards becomes incredible and lies outside of judicial cognizance.46 On the conspiracy aspect, it is worthy of note that while the Court of Appeals in the body of its decision sustained the existence of conspiracy as held by the lower court47 yet in the penultimate paragraph of the decision as well as in the dispositive portion, it ruled out the presence of conspiracy. Thus:

As to the penalty, the crime of robbery with violence against persons is penalized under par. 5, Article 294 of the Revised Penal Code by prision correccional maximum to prision mayor medium. Considering the attendant aggravating circumstance of abuse of superior strength (not conspiracy as ruled by the trial court),48 which is not offset by any mitigating circumstance, the penalty should be imposed in its maximum period, which is prision mayor medium or from eight (8) years and one (1) day to ten (10) years. Applying the Indeterminate Sentence Law, the minimum of the imposable penalty shall be the penalty next lower in degree which is arresto mayor maximum to prision correctional medium, in any of its periods, or from four (4) months and one (1) day to four (4) years and two (2) months. Thus, appellant should have been meted the indeterminate penalty of from 4 years and two months of prision correccional, as minimum, to eight (8) years of prision mayor medium, as maximum. WHEREFORE, the judgment appealed from is hereby AFFIRMED with the MODIFICATION that accused-appellants are hereby sentenced to suffer the indeterminate penalty of from four (4) years and two months of prision correccional, as minimum to eight (8) years of prision mayor, as maximum. Costs against appellants. SO ORDERED.49

It is a well-settled rule that the dispositive portion of the decision prevails over the opinion, the former being the final order while the opinion is an informal expression of the views of the court, thus forming no part of the judgment.50 Following this rule, the appellate court thus found the presence of abuse of superior strength as an aggravating circumstance but not conspiracy. The appellate court is correct in ruling out conspiracy. The existence of conspiracy cannot be presumed. The elements of conspiracy must be proven beyond reasonable doubt.51 Conspiracy must be shown to exist as clearly and convincingly as the commission of the offense itself.52 Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.53 It may be inferred from the conduct of the accused before, during, and after the commission of the crime. All taken together, however, the evidence therefor must be reasonably strong enough to show a community of criminal design.54 In the case at bar, there is no convincing evidence that all of the accused had resolved to rob Misayah prior to the actual robbery. What is evident is that the robbery that transpired was a spur of the moment decision among the three accused. For one, Miranda and Ocampo were consistent in their statement that they were on their way to have a drink at the common time of the incident. For another, they saw Misayah by chance. Still for another, there was no evidence that all of the accused knew beforehand that Misayah

would be passing by the street where the robbery occurred that fateful evening. Neither was it shown that the street was part of Misayahs regular route on his way home. According to Misayah in his testimony, Cruz grabbed his neck and choked him while Miranda held his shoulder.1avvphi1 Ocampo meanwhile was in the middle, holding a knife and warning him not to fight back. While the evidence did not prove the existence of conspiracy, it indelibly established that the accused took advantage of their superior strength.55 Article 294, paragraph (5) of the Revised Penal Code fixes the penalty for simple robbery at prision correccional in its maximum period to prision mayor in its medium period, the range of which is from four (4) years, two (2) months and one (1) day to ten (10) years.56 Considering the aggravating circumstance of abuse of superior strength, the penalty should be imposed in its maximum period while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor maximum to prision correccional medium in any of its periods, the range of which is four (4) months and one (1) day to four (4) years and two (2) months.57 We note that the appellate courts decision did not order the accused to indemnify Misayah the amount of P34,345.00. The records do not show that this amount had already been paid

pursuant to the Decision of the trial court dated 31 May 2000. Thus, we modify the appellate courts decision in this respect. WHEREFORE, the decision dated 10 February 2004 of the Court of Appeals is AFFIRMED with MODIFICATION. Accused Ocampo is sentenced to the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum to eight (8) years of prision mayor as maximum. Petitioner Ocampo together with his other co-accused Miranda and Cruz are ordered to indemnify Rommel Q. Misayah the amount of P34,345.00 without subsidiary imprisonment in case of insolvency. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 138470 April 1, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. ARTEMIO GARCIA y CRUZ, JR. and REGALADO BERNABE y ORBE, accused.

REGALADO BERNABE y ORBE, appellant. YNARES-SANTIAGO, J.: This is an appeal from the decision1 dated March 10, 1999 of the Regional Trial Court of Malolos, Bulacan, Branch 21, in Criminal Case No. 830-M-98, finding Artemio Garcia y Cruz, Jr. and Regalado Bernabe y Orbe guilty beyond reasonable doubt of the crime of Carnapping with Homicide and sentencing them to suffer the penalty of reclusion perpetua. On June 3, 1998, Artemio Garcia, Jr. and Regalado Bernabe were charged with the crime of Carnapping with Homicide as defined in Republic Act No. 6539. The Information against them reads: That on or about the 21st day of December, 1996, in the municipality of San Rafael, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and helping with each other, with intent of gain, did then and there willfully, unlawfully and feloniously and by means of violence and intimidation, forcibly take from the driver Wilfredo Elis a brand new Toyota Tamaraw FX with Plate No. UJL-761 owned by Fernando Ignacio; That during the commission of the offense, or by reason thereof, the said accused, armed with bladed weapons, conspiring, confederating and helping each other, did then and there, with

intent to kill, willfully, unlawfully and feloniously attack, assault and stab Wilfredo Elis in different parts of his body causing mortal wounds which directly resulted in his death. Contrary to law.2 Upon arraignment, both accused pleaded "not guilty" to the crime charged. Thereafter, the case was tried on the merits. It appears from the record that on December 17, 1996, Joselito Cortez, a taxicab operator based in Marilao, Bulacan, was approached by Garcia and Bernabe because they wanted to borrow his brand new Mitsubishi L300 van for their trip to the Bicol region. Cortez refused, saying that the van was unavailable. Instead, he got in touch with Ferdinand Ignacio, who had just purchased a brand new Toyota Tamaraw FX for P475,500.00.3 Ignacio agreed to lease his vehicle to Cortez for two days at the daily rate of P2,000.00. Bernabe and Garcia, on the other hand, rented the vehicle from Cortez for P4,000.00 a day inclusive of the P500.00 drivers fee. They agreed to pay the rental fee upon their return from Bicol.4 In the early morning of December 18, 1996, Cortez and his driver, Wilfredo Elis, picked up Ignacios Tamaraw FX at his residence in Meycauayan, Bulacan. Elis drove the same back to Marilao, Bulacan and, at 8:00 a.m., he and the two accused left for Bicol.5

Four days passed without a word from Garcia and Bernabe. Cortez began to worry about the vehicle he had borrowed from Ferdinand Ignacio so he informed the Barangay Captain of Saog, Marilao, Bulacan. Meanwhile, Elis wife, Nancy, approached Cortez and asked where her husband was.6 In the afternoon of December 23, 1996, SPO2 Emmanuel Lapurga of the Moncada, Tarlac Police notified the Chief of Police that two suspicious looking persons were seen selling a vehicle in Anao, Tarlac at the grossly inadequate price of P50,000.00. The Chief of Police immediately formed a team,7 but when they reached Anao, Tarlac, they found out that the two accused had already left for Nampicuan, Nueva Ecija. The team thereafter coordinated with the Nueva Ecija Police. The two accused were seen in front of a store in Brgy. Pangayan, Nampicuan, Nueva Ecija. When they failed to produce documents of ownership over the Tamaraw FX, they were brought to the Moncada Police Station for investigation.8 Garcia and Bernabe admitted to the Moncada Police that they attempted to sell the Tamaraw FX belonging to Ferdinand Ignacio. In the early morning of December 24, 1996, a joint team of police officers composed of members of the Moncada and Marilao Police, together with the Barangay Captain of Saog, Marilao, Bulacan, were accompanied by Cortez to Moncada, Tarlac, where the latter positively identified Ignacios Tamaraw FX.

Cortez went to visit Garcia and Bernabe in detention. They admitted to him that they stabbed Elis and dumped him along the highway near the "sabana" in San Rafael, Bulacan. They claimed that they were compelled to eliminate Elis when he refused to join their plan to sell the Tamaraw FX. Garcia brought the policemen, together with Cortez and the Barangay Captain, to San Rafael, Bulacan where he pointed to the place where they killed Elis. However, the police were unable to find Elis body. After returning to Moncada, Cortez immediately inspected the interior of the vehicle and found bloodstains on the side and back of the drivers seat. He also found several personal items belonging to Elis, such as his clothes and drivers license,9 as well as Garcias bag which contained bonnets, tear gas, the warranty card and the car registration papers.10 On December 29, 1996, the Moncada police received information that a male cadaver was found in San Rafael, Bulacan, submerged in mud ten meters away from where they searched earlier. The cadaver was identified as that of Wilfredo Elis by his wife, Nancy.11 Dr. Benito Caballero, Municipal Health Officer and Medico-Legal Officer of the province of Bulacan, who performed the autopsy, found four stab wounds in the posterior, one stab wound in the lateral and one on the left side of the thorax. He opined that the wounds which penetrated the abdomen and lungs were fatal.12

In their defense, Garcia and Bernabe alleged that they agreed to rent the subject vehicle for a period of five days from December 18, 1996; that Garcia and Elis had a fight because the latter allegedly did not want to go with them to Nueva Ecija; that Elis, while driving the Tamaraw FX, bumped a passenger jeepney along Baliuag Highway; that they left Elis along the Baliuag Highway at 3:30 a.m. so he can inform Cortez that they were already in Bulacan and were en route to Nueva Ecija to have the dented portion of the vehicle fixed.13 After trial, the court a quo rendered a decision, the dispositive portion of which reads: WHEREFORE, all premises considered, this Court finds and so holds that the prosecution has been able to establish the accuseds criminal culpability. In view thereof, Artemio Garcia y Cruz, Jr. and Regalado Bernabe y Orbe are hereby found GUILTY beyond reasonable doubt of the special complex crime of Carnapping with Homicide in violation of Republic Act No. 6539 as amended by Republic Act No. 7659. Accordingly, absent any circumstances that will aggravate the commission thereof, both of them are hereby sentenced to suffer the penalty of Reclusion Perpetua. Further, both accused are hereby ordered jointly and severally to indemnify the heirs of Wilfredo Elis, the sum of P50,000.00; to pay them the amount of P100,000.00 for moral

damages; P15,290.00 for actual/ compensatory damages; and P250,000.00 for loss of earnings. With costs against the accused. SO ORDERED.14 Both accused appealed from the decision of the trial court. On March 31, 2000, accused Garcia filed an Urgent Motion to Withdraw Appeal,15 which was granted in a Resolution dated September 27, 2000. Appellant Bernabe raises the following assignment of errors: I THE HONORABLE TRIAL COURT ERRED IN HOLDING THAT ALL THE ELEMENTS OF CARNAPPING AS DEFINED IN REPUBLIC ACT 6539 (ANTI-CARNAPPING ACT) AS AMENDED ARE PRESENT AND DULY PROVEN. II THE HONORABLE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANT BERNABE WAS PART OF AN ALLEGED CONSPIRACY TO COMMIT CARNAPPING.

III THE HONORABLE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT BERNABE ON THE BASIS OF HIS ALLEGED ADMISSION OF THE CRIME TO PRIVATE INDIVIDUALS. Republic Act No. 6539, otherwise known as "An Act Preventing and Penalizing Carnapping", defines "carnapping" as "the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things."16 More specifically, the elements of the crime are as follows: 1. That there is an actual taking of the vehicle; 2. That the offender intends to gain from the taking of the vehicle; 3. That the vehicle belongs to a person other than the offender himself; 4. That the taking is without the consent of the owner thereof; or that the taking was committed by means of violence against or intimidation of persons, or by using force upon things.17 A careful examination of the evidence presented shows that all the elements of carnapping were proved in this case.

Unlawful taking is the taking of a vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.18 In the case at bar, it cannot be denied that the nature of the appellants possession of the Tamaraw FX was initially lawful. Nevertheless, the unlawful killing of the deceased for the purpose of taking the vehicle radically transformed the character of said possession into an unlawful one. Cortez categorically stated that during his first visit to the Moncada Police Station where appellant and his co-accused were detained, the two separately admitted to him that they killed the deceased when the latter refused to join their plan to sell the vehicle. Their confession, having been freely and voluntarily given to Cortez, a private individual, is admissible against the appellant.19 Thus, the duration of the lease of the Tamaraw FX, whether for an indefinite period as contended by the defense, or only for 4 days, as claimed by the prosecution, has no bearing on the culpability of the appellant. It does not matter whether the unlawful taking occurred within the period of the lease. What is decisive here is the purpose of appellant and his coaccused in killing the victim. Such is the vital point on which the crime and the nature thereof is to be determined. To reiterate, the prosecution was able to establish that appellant and his coaccused stabbed the victim to death because he refused to join them in their plan to appropriate the vehicle. This undoubtedly

satisfied the element of unlawful taking through violence, rendering appellant liable for the crime charged. Moreover, it must be stressed that the acts committed by appellant constituted the crime of carnapping even if the deceased was the driver of the vehicle and not the owner. The settled rule is that, in crimes of unlawful taking of property through intimidation or violence, it is not necessary that the person unlawfully divested of the personal property be the owner thereof. What is simply required is that the property taken does not belong to the offender. Actual possession of the property by the person dispossessed suffices. So long as there is apoderamiento of personal property from another against the latter's will through violence or intimidation, with animo de lucro, unlawful taking of a property belonging to another is imputable to the offender. 20 Furthermore, at the time of their apprehension, appellant Bernabe and Garcia were unable to give a plausible explanation why they still had the Tamaraw FX in their possession. Appellant Bernabe claims that he and his co-accused went to Nampicuan, Nueva Ecija to have the dent on the vehicle repaired. Garcia, on the other hand, testified that there was no such damage. A person in possession of a stolen article is presumed guilty of having illegally and unlawfully taken the same unless he can satisfactorily explain his possession of the thing.21

Appellant contends that he did not conspire with his co-accused to commit the crime of carnapping. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be proved by direct evidence and may be inferred from the conduct of the accused before, during and after the commission of the crime,22 which are indicative of a joint purpose, concerted action and concurrence of sentiments.23 In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal design of another, indicated by the performance of an overt act leading to the crime committed. It may be deduced from the mode and manner in which the offense was perpetrated.24 In the case at bar, it was sufficiently proved that Garcia and Bernabe, through Joselito Cortez, hired the brand new Toyota Tamaraw FX belonging to Ferdinand Ignacio for their trip to Bicol; that at 8:00 a.m. of December 18, 1996, they left for Bicol on board the Tamaraw FX driven by Elis; that on December 23, 1996, SPO2 Emmanuel Lapurga of Moncada, Tarlac reported to the Chief of Police that two suspiciously looking persons, who turned out to be Garcia and Bernabe were offering to sell a brand new Toyota Tamaraw FX for a mere P50,000.00 in Anao, Tarlac; and that the two were finally apprehended with the subject vehicle at Nampicuan, Nueva Ecija by elements of the Tarlac and Nueva Ecija Police.

While there may be no direct evidence of the commission of the crime, the foregoing constitute circumstantial evidence sufficient to warrant Garcias and Bernabes conviction. The following requisites for circumstantial evidence to sustain a conviction were met, to wit: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.25 The circumstances indeed form an unbroken chain which leads to a fair and reasonable conclusion that Bernabe and Garcia were the perpetrators of the crime. It has been held that facts and circumstances consistent with guilt and inconsistent with innocence constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.26 The records show that Garcia and Bernabe admitted to Cortez and Ignacio that they were responsible for taking the vehicle and killing the victim, Elis. On December 24, 1996, Cortez went to the Moncada Municipal Jail and talked to them while they were detained. Both admitted to him that they forcibly took the said vehicle from Elis, stabbed him and thereafter dumped him at San Rafael, Bulacan.27 Subsequently, on December 26, 1996, Cortez and Ignacio went to Moncada and confronted the two in their cells. Garcia admitted to Cortez and Ignacio that they stole the vehicle because they were in dire need of money, while Bernabe kept quiet.28

Appellant Bernabe maintains that the trial court erred in admitting in evidence his admission to Cortez and Ignacio on the grounds that (a) he did not make such admission; (b) the admission made by Garcia should not prejudice him; and (c) assuming he made such admission, it should be excluded for having been made under duress and intimidation.29 In People v. Andan,30 it was held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Article III, Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, and not to prevent him from freely and voluntarily telling the truth. Hence, appellants voluntary admission to Cortez that he and his co-accused conspired in killing the deceased when the latter opposed their plan to sell the vehicle is admissible as evidence against him. Anent Garcias extrajudicial confession implicating appellant in the commission of the offense, it appears that the latter did not oppose or affirm Garcias statement. Neither did he make an attempt to refute the same insofar as his participation in the

commission of the crime was concerned. As correctly observed by the Office of the Solicitor General, "he cannot invoke his silence during this crucial moment as his right. He ought to speak and failing to do so, his silence weighs heavily on him. Thus, it was not accused-appellants Garcias admission that prejudiced accusedappellant Bernabe, but his own silence when it was such as naturally to call for action or comment if not true."31 Rule 130, Section 32 of the Rules of Court provides that an act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. We likewise find no merit in the allegation that duress was employed on appellant. Suffice it to state that such bare allegation of force and duress is not enough to prove that he was indeed tortured to admit complicity in the offense charged. The penalty for carnapping is provided in Section 14 of RA 6539, as amended by Section 20 of RA 7659, to wit: Sec. 14. Penalty for Carnapping.- Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight

months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof.32 (Emphasis supplied) Hence, the trial court correctly imposed the penalty of reclusion perpetua on appellant Bernabe and his co-accused, Garcia. The award by the trial court of P50,000.00 in favor of the heirs of the victim should be affirmed. When death occurs as a result of a crime, the heirs of the deceased are entitled to such amount as indemnity for the death, without need of any evidence of proof of damages.33 This is in addition to the actual damages of P15,290.50 which was duly substantiated by proof.34 We, however, reduce the award of moral damages to P50,000.00, in line with current jurisprudence.35 Lastly, we find the court a quos award of P250,000.00 for loss of earning capacity to be without basis. Nancy testified that her husband Wilfredo was earning P600.00 a day prior to his death,36 however, she failed to produce evidence to substantiate her claim.

As held in the case of People v. Panabang,37 a self-serving statement is not enough; the indemnification for loss of earning capacity must be duly proven. WHEREFORE, the decision dated March 10, 1999, of the Regional Trial Court of Malolos, Bulacan, Branch 21, finding appellant Regaldo Bernabe y Orbe guilty of Carnapping with Homicide, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of the victim, Wilfredo Elis, the sums of P50,000.00 as civil indemnity and P15,290.00 as actual damages, is AFFIRMED with the following MODIFICATIONS: Appellant is further ordered to pay the heirs of the victim, Wilfredo Elis, moral damages in the reduced amount of P50,000.00. The award of P250,000.00 for loss of earnings is DELETED for lack of factual basis. Republic of the Philippines SUPREME COURT Manila SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 125059

March 17, 2000

FRANCISCO T. SYCIP, JR., petitioner, vs. COURT OF APPEALS and PEOPLE respondents. QUISUMBING, J.:

OF

THE

PHILIPPINES,

For review on certiorari is the decision of the Court of Appeals, dated February 29, 1996, in CA-G.R. CR No. 15993, which affirmed the judgment of the Regional Trial Court of Quezon City, Branch 95, in Criminal Cases Nos. Q-91-25910 to 15, finding petitioner guilty beyond reasonable doubt of violating B.P. Blg. 22, the Bouncing Checks Law. The facts in this case, as culled from the records, are as follows: On August 24, 1989, Francisco T. Sycip agreed to buy, on installment, from Francel Realty Corporation (FRC), a townhouse unit in the latter's project at Bacoor, Cavite. Upon execution of the contract to sell, Sycip, as required, issued to FRC, forty-eight (48) postdated checks, each in the amount of P9,304.00, covering 48 monthly installments.

After moving in his unit, Sycip complained to FRC regarding defects in the unit and incomplete features of the townhouse project. FRC ignored the complaint. Dissatisfied, Sycip served on FRC two (2) notarial notices to the effect that he was suspending his installment payments on the unit pending compliance with the project plans and specifications, as approved by the Housing and Land Use Regulatory Board (HLURB). Sycip and 12 out of 14 unit buyers then filed a complaint with the HLURB. The complaint was dismissed as to the defects, but FRC was ordered by the HLURB to finish all incomplete features of its townhouse project. Sycip appealed the dismissal of the complaint as to the alleged defects. Notwithstanding the notarial notices, FRC continued to present for encashment Sycip's postdated checks in its possession. Sycip sent "stop payment orders" to the bank. When FRC continued to present the other postdated checks to the bank as the due date fell, the bank advised Sycip to close his checking account to avoid paying bank charges every time he made a "stop payment" order on the forthcoming checks. Due to the closure of petitioner's checking account, the drawee bank dishonored six postdated checks. FRC filed a complaint against petitioner for violations of B.P. Blg. 22 involving said dishonored checks. On November 8, 1991, the Quezon City Prosecutor's Office filed with the RTC of Quezon City six Informations docketed as Criminal

Cases No. Q-91-25910 to Q-91-25915, charging petitioner for violation of B.P. Blg. 22. The accusative portion of the Information in Criminal Case No. Q91-25910 reads: That on or about the 30th day of October 1990 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused, did then and there, willfully, unlawfully and feloniously make, draw and issue in favor of Francel Realty Corporation a check 813514 drawn against Citibank, a duly established domestic banking institution in the amount of P9,304.00 Philippine Currency dated/postdated October 30, 1990 in payment of an obligation, knowing fully well at the time of issue that she/he did not have any funds in the drawee bank of (sic) the payment of such check; that upon presentation of said check to said bank for payment, the same was dishonored for the reason that the drawer thereof, accused Francisco T. Sycip, Jr. did not have any funds therein, and despite notice of dishonor thereof, accused failed and refused and still fails and refused (sic) to redeem or make good said check, to the damage and prejudice of the said Francel Realty Corporation in the amount aforementioned and in such other amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW.1

Criminal Cases No. Q-91-25911 to Q-91-25915, with Informations similarly worded as in Criminal Case No. Q-91-25910, except for the dates, and check numbers2 were consolidated and jointly tried. When arraigned, petitioner pleaded "Not Guilty" to each of the charges. Trial then proceeded. The prosecution's case, as summarized by the trial court and adopted by the appellate court, is as follows: The prosecution evidence established that on or about August 24, 1989, at the office of the private complainant Francel Realty Corporation (a private domestic corporation engaged in the real estate business) at 822 Quezon Avenue, QC, accused Francisco Sycip, Jr. drew, issued, and delivered to private complainant Francel Realty Corporation (FRC hereinafter) six checks (among a number of other checks), each for P9,304.00 and drawn pay to the order of FRC and against Francisco's account no. 845515 with Citibank, to wit: Check No. 813514 dated October 30, 1990 (Exh. C), Check No. 813515 dated November 30, 1990 (Exh. D), Check No. 813518 dated February 28, 1991 (Exh. E), Check No. 813516 dated December 30, 1990 (Exh. F), Check No. 813517 dated January 30, 1991 (Exh. G) and Check No. 813519 dated March 30, 1991 (Exh. H), as and in partial payment of the unpaid balance of the purchase price of the house and lot subject of the written contract executed and entered into by and between FRC as seller

and Francisco as buyer on said date of August 24, 1989 (Exh. B, also Exh. 1). The total stipulated purchase price for the house and lot was P451,700.00, of which Francisco paid FRC in the sum of P135,000.00 as down payment, with Francisco agreeing and committing himself to pay the balance of P316,000.00 in 48 equal monthly installments of P9,304.00 (which sum already includes interest on successive monthly balance) effective September 30, 1989 and on the 30th day of each month thereafter until the stipulated purchase price is paid in full. The said six Citibank checks, Exhs. C thru H, as earlier indicated were drawn, issued, and delivered by Francisco in favor of FRC as and in partial payment of the said 48 equal monthly installments under their said contract (Exh. B, also Exh. 1). Sometime in September 1989, the Building Official's certificate of occupancy for the subject house a residential townhouse was issued (Exh. N) and Francisco took possession and started in the use and occupancy of the subject house and lot.1wphi1.nt When the subject six checks, Exhs. C thru H, were presented to the Citibank for payment on their respective due dates, they were all returned to FRC dishonored and unpaid for the reason: account closed as indicated in the drawee bank's stamped notations on the face and back of each check; in fact, as indicated in the corresponding record of Francisco's account no. 815515 with Citibank, said account already had a zero balance as early as September 14, 1990 (Exh. 1-5). Notwithstanding the fact that FRC, first thru its executive vice president and project manager

and thereafter thru its counsel, had notified Francisco, orally and in writing, of the checks' dishonor and demanded from him the payment of the amount thereof, still Francisco did not pay or make good any of the checks (Exhs. I thru K). . .3 The case for the defense, as summarized also by the trial court and adopted by the Court of Appeals, is as follows: The defense evidence in sum is to the effect that after taking possession and starting in the use and occupancy of the subject townhouse unit, Francisco became aware of its various construction defects; that he called the attention of FRC, thru its project manager, requesting that appropriate measures be forthwith instituted, but despite his several requests, FRC did not acknowledge, much less attend to them; that Francisco thus mailed to FRC a verified letter dated June 6, 1990 (Exh. 2) in sum giving notice that effective June 1990, he will cease and desist "from paying my monthly amortization of NINE THOUSAND THREE HUNDRED FOUR (P9,304.00) PESOS towards the settlement of my obligation concerning my purchase of Unit No. 14 of FRC Townhomes referred to above, unless and until your Office satisfactorily complete(s) the construction, renovation and/or repair of my townhouses (sic) unit referred to above" and that should FRC "persist in ignoring my aforesaid requests, I shall, after five (5) days from your receipt of this Verified Notice, forthwith petition the [HLURB] for Declaratory Relief and Consignation to grant me provisional relief from my obligation to pay my monthly

amortization to your good Office and allow me to deposit said amortizations with [HLURB] pending your completion of FRC Townhomes Unit in question"; that Francisco thru counsel wrote FRC, its president, and its counsel notices/letters in sum to the effect that Francisco and all other complainants in the [HLURB] case against FRC shall cease and desist from paying their monthly amortizations unless and until FRC satisfactorily completes the construction of their units in accordance with the plans and specifications thereof as approved by the [HLURB] and as warranted by the FRC in their contracts and that the dishonor of the subject checks was a natural consequence of such suspension of payments, and also advising FRC not to encash or deposit all other postdated checks issued by Francisco and the other complainants and still in FRC's possession (Exhs. 3 thru 5); that Francisco and the other complainants filed the [HLURB] case against FRC and later on a decision was handed down therein and the same is pending appeal with the Board (Exhs. 6, 7, & 12 thru 17, also Exh. 8); that as of the time of presentation of the subject checks for payment by the drawee bank, Francisco had at least P150,000.00 cash or credit with Citibank (Exhs. 10 & 11) and, that Francisco closed his account no. 845515 with Citibank conformably with the bank's customer service officer's advice to close his said account instead of making a stop-payment order for each of his more than 30 post-dated checks still in FRC's possession at the time, so as to avoid the P600.00-penalty imposed by the bank for every check subject of a stop-payment order.4

On March 11, 1994, the trial court found petitioner guilty of violating Section 1 of B.P. Blg. 22 in each of the six cases, disposing as follows: WHEREFORE, in each of Crim. Cases Nos. Q-91-25910, Q-9125911, Q-91-25912, Q-91-25913, Q-91-25914 and Q-91-25915, the Court finds accused Francisco T. Sycip, Jr. guilty beyond reasonable doubt of a violation of Sec. 1 of Batas Pambansa Blg. 22 and, accordingly, he is hereby sentenced in and for each case to suffer imprisonment of thirty (30) days and pay the costs. Further, the accused is hereby ordered to pay the offended party, Francel Realty Corporation, as and for actual damages, the total sum of fifty-five thousand eight hundred twenty four pesos (P55,824.00) with interest thereon at the legal rate from date of commencement of these actions, that is, November 8, 1991, until full payment thereof. SO ORDERED. Dissatisfied, Sycip appealed the decision to the Court of Appeals. His appeal was docketed as CA-G.R. CR No. 15993. But on February 29, 1996, the appellate court ruled: On the basis of the submission of the People, We find and so hold that appellant has no basis to rely on the provision of PD 957 to justify the non-payment of his obligation, the closure of his

checking account and the notices sent by him to private complainant that he will stop paying his monthly amortizations.6 Petitioner filed a motion for reconsideration on March 18, 1996, but it was denied per Resolution dated April 22, 1996. Hence, the instant petition anchored on the following assignment of errors: I THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT FINDING THAT THE ACCUSED-APPELLANT DID NOT HAVE ANY JUSTIFIABLE CAUSE TO STOP OR OTHERWISE PREVENT THE PAYMENT OF THE SUBJECT CHECKS BY THE DRAWEE BANK. II THE LOWER COURT ERRED IN FINDING THAT THE ACCUSEDAPPELLANT MUST BE DEEMED TO HAVE WAIVED HIS RIGHT TO COMPLAIN AGAINST THE DEVELOPMENT OF THE TOWNHOUSE UNIT AND THE TOWNHOUSE PROJECT. III

THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT THAT THE ACCUSED-APPELLANT DID NOT HAVE SUFFICIENT FUNDS WITH THE DRAWEE BANK TO COVER THE SUBJECT CHECKS UPON PRESENTMENT FOR PAYMENT THEREOF. IV THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT CONVICTING THE ACCUSED-APPELLANT AND AWARDING DAMAGES IN FAVOR OF PRIVATE COMPLAINANT.7 The principal issue before us is whether or not the Court of Appeals erred in affirming the conviction of petitioner for violation of the Bouncing Checks Law. Petitioner argues that the court a quo erred when it affirmed his conviction for violation of B.P. Blg. 22, considering that he had cause to stop payment of the checks issued to respondent. Petitioner insists that under P.D. No. 957, the buyer of a townhouse unit has the right to suspend his amortization payments, should the subdivision or condominium developer fail to develop or complete the project in accordance with duly-approved plans and specifications. Given the findings of the HLURB that certain aspects of private complainant's townhouse project were incomplete and undeveloped, the exercise of his right to suspend payments should not render him liable under B.P. Blg. 22.

The Solicitor General argues that since what petitioner was charged with were violations of B.P. Blg. 22, the intent and circumstances surrounding the issuance of a worthless check are immaterial.8 The gravamen of the offense charged is the act itself of making and issuing a worthless check or one that is dishonored upon its presentment for payment. Mere issuing of a bad check is malum prohibitum, pernicious and inimical to public welfare. In his view, P.D. No. 957 does not provide petitioner a sufficient defense against the charges against him. Under the provisions of the Bouncing Checks Law (B.P. No. 22),9 an offense is committed when the following elements are present: (1) the making, drawing and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. 10

In this case, we find that although the first element of the offense exists, the other elements have not been established beyond reasonable doubt. To begin with, the second element involves knowledge on the part of the issuer at the time of the check's issuance that he did not have enough funds or credit in the bank for payment thereof upon its presentment. B.P. No. 22 creates a presumption juris tantum that the second element prima facie exists when the first and third elements of the offense are present. 11 But such evidence may be rebutted. If not rebutted or contradicted, it will suffice to sustain a judgment in favor of the issue, which it supports. 12 As pointed out by the Solicitor General, such knowledge of the insufficiency of petitioner's funds "is legally presumed from the dishonor of his checks for insufficiency of funds." 13 But such presumption cannot hold if there is evidence to the contrary. In this case, we find that the other party has presented evidence to contradict said presumption. Hence, the prosecution is duty bound to prove every element of the offense charged, and not merely rely on a rebuttable presumption. Admittedly, what are involved here are postdated checks. Postdating simply means that on the date indicated on its face, the check would be properly funded, not that the checks should be deemed as issued only then. 14 The checks in this case were issued at the time of the signing of the Contract to Sell in August 1989. But we find from the records no showing that the time said

checks were issued, petitioner had knowledge that his deposit or credit in the bank would be insufficient to cover them when presented for encashment. 15 On the contrary, there is testimony by petitioner that at the time of presentation of the checks, he had P150,000,00 cash or credit with Citibank. As the evidence for the defense showed, the closure of petitioner's Account No. 845515 with Citibank was not for insufficiency of funds. It was made upon the advice of the drawee bank, to avoid payment of hefty bank charges each time petitioner issued a "stop payment" order to prevent encashment of postdated checks in private respondent's possession. 16 Said evidence contradicts the prima facie presumption of knowledge of insufficiency of funds. But it establishes petitioner's state of mind at the time said checks were issued on August 24, 1989. Petitioner definitely had no knowledge that his funds or credit would be insufficient when the checks would be presented for encashment. He could not have foreseen that he would be advised by his own bank in the future, to close his account to avoid paying the hefty banks charges that came with each "stop payment" order issued to prevent private respondent from encashing the 30 or so checks in its possession. What the prosecution has established is the closure of petitioner's checking account. But this does not suffice to prove the second element of the offense under B.P. Blg. 22, which explicitly requires "evidence of knowledge of insufficient funds" by the accused at the time the check or checks are presented for encashment.

To rely on the presumption created by B.P. No. 22 as the prosecution did in this case, would be to misconstrue the import of requirements for conviction under the law. It must be stressed that every element of the offense must be proved beyond reasonable doubt, never presumed. Furthermore, penal statutes are strictly construed against the State and liberally in favor of the accused. Under the Bouncing Checks Law, the punishable act must come clearly within both the spirit and letter of the statute. While B.P. Blg. 22 was enacted to safeguard the interest of the banking system, 18 it is difficult to see how conviction of the accused in this case will protect the sanctity of the financial system. Moreover, protection must also be afforded the interest of townhouse buyers under P.D. No. 957. 19 A statute must be construed in relation to other laws so as to carry out the legitimate ends and purposes intended by the legislature. 20 Courts will not strictly follow the letter of one statute when it leads away from the true intent of legislature and when ends are inconsistent with the general purpose of the act. 21 More so, when it will mean the contravention of another valid statute. Both laws have to be reconciled and given due effect. Note that we have upheld a buyer's reliance on Section 23 of P.D. 957 to suspend payments until such time as the owner or developer had fulfilled its obligations to the buyer. 22 This exercise of a statutory right to suspend installment payments, is to our mind, a valid defense against the purported violations of B.P. Blg. 22 that petitioner is charged with.

Given the findings of the HLURB as to incomplete features in the construction of petitioner's and other units of the subject condominium bought on installment from FRC, we are of the view that petitioner had a valid cause to order his bank to stop payment. To say the least, the third element of "subsequent dishonor of the check. . . without valid cause" appears to us not established by the prosecution. As already stated, the prosecution tried to establish the crime on a prima facie presumption in B.P. Blg. 22. Here that presumption is unavailing, in the presence of a valid cause to stop payment, thereby negating the third element of the crime. Offenses punished by a special law, like the Bouncing Checks Law, are not subject to the Revised Penal Code, but the Code is supplementary to such a law. 23 We find nothing in the text of B.P. Blg. 22, which would prevent the Revised Penal Code from supplementing it. Following Article 11 (5) 24 of the Revised Penal Code, petitioner's exercise of a right of the buyer under Article 23 of P.D. No. 957 is a valid defense to the charges against him. WHEREFORE, the instant petition is GRANTED. Petitioner Francisco T. Sycip, Jr., is ACQUITTED of the charges against him under Batas Pambansa Blg. 22, for lack of sufficient evidence to prove the offenses charged beyond reasonable doubt. No pronouncement as to costs.

SO ORDERED. Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 149858 September 5, 2007

petitioner guilty of nine (9) counts of violations of Batas Pambansa Bilang 22 (B.P. 22), otherwise known as the Bouncing Checks Law. On August 16, 1994, Francisco M. Bax, petitioner, was charged with violations of B.P. 22 (10 counts) before the Metropolitan Trial Court (MeTC), Branch 71, Pasig City,3 docketed as Criminal Cases Nos. 14354 to 14363. The Information in Criminal Case No. 14354 reads: That on or about the 13th day of March 1994 in the Municipality of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make or draw and issue to Ilyon Industrial Corporation to apply on account or for value the check described below: Check No.:

FRANCISCO M. BAX, petitioner, vs. PEOPLE OF THE PHILIPPINES CORPORATION, respondents. DECISION

and

ILYON

INDUSTRIAL

: SANDOVAL-GUTIERREZ, J.: AGRO94438 Challenged in the instant Petition for Review on Certiorari1 are the Decision2 of the Court of Appeals dated December 19, 2000 and its Resolution dated September 5, 2001 in CA-G.R. CR No. 23356 affirming in toto the Decision dated December 14, 1998 of the Regional Trial Court (RTC), Branch 70, Pasig City declaring Drawn against :

United Coconut Planters Bank In the amount : P47,250.00 Dated/Postdated :

the face amount of the said check or made arrangement for full payment thereof within five (5) banking days after receiving notice. CONTRARY TO LAW. Except as to the numbers and dates of the other nine checks issued by petitioner, and the reason for their dishonor (drawn against insufficient funds), the Informations in Criminal Cases Nos. 14355-14363 and the above Information are similarly worded. The facts are:

March 13, 1994 Payable to : Ilyon Industrial Corp. rep. by Benedict Tan said accused well knowing that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment, which check could have been dishonored for insufficiency of funds had not the accused, without any valid reason, ordered the bank to "Stop Payment", and despite receipt of notice of such dishonor, the accused failed to pay said payee Sometime in October 1993, petitioner, for and in behalf of Vachman Industries, Inc. (VACHMAN), purchased 80 metric tons of chemical compounds, known as caustic soda flakes, from Ilyon Industrial Corporation (ILYON), respondent. On December 6, 1993, ILYON delivered 27 metric tons of caustic soda flakes to petitioner. Again in January 1994, ILYON delivered another 27 metric tons of caustic soda flakes to petitioner. In payment therefor, petitioner issued ten (10) checks amounting to P464,750.00 in favor of ILYON. Upon presentment of the checks to the United Coconut Planters Bank for payment, they were dishonored for being drawn against insufficient funds. Despite ILYONs demand, petitioner failed to

make good the bounced checks for the reason that he has been encountering financial problems. As a result, ILYON caused the filing of ten (10) Informations against petitioner. After hearing or on March 27, 1998, the MeTC rendered a Decision finding petitioner guilty as charged, thus: WHEREFORE, in view of all the foregoing, the Court hereby renders judgment finding the accused, Francisco Bax, "GUILTY" of the crime of Violations of Batas Pambansa Bilang 22, (10) counts, and accordingly sentences him to suffer imprisonment of six (6) months in each case and to pay the offended party the sum of P464,750.00, the amount of all the ten (10) checks and to pay the cost. SO ORDERED. On appeal, the RTC, Branch 70, Pasig City, presided by Judge Pablito Rojas, rendered a Joint Decision dated December 14, 1998 affirming with modification the MeTC Decision, thus: WHEREFORE, in view of the foregoing, the Decision of the Court a quo is hereby AFFIRMED with the following MODIFICATIONS: (a) accused is ACQUITTED in Criminal case No. 14354;

(b) the sentence imposed on accused in Criminal Case Nos. 14355 to 14363 of six (6) months imprisonment for each is hereby increased to ONE (1) YEAR in each case; and (c) the total amount of indemnity to be paid by the accused to the complainant-corporation is PHP 417,500.00. SO ORDERED. On appeal,4 the Court of Appeals in CA-G.R. CR No. 23356 rendered its Decision on December 19, 2000 affirming in toto the RTC Decision. Petitioner filed a motion for reconsideration but it was denied by the appellate court in a Resolution dated September 5, 2001. Hence the instant petition. The basic issue is whether the prosecution was able to prove the guilt of petitioner by evidence beyond reasonable doubt. The Solicitor General contends that the Court of Appeals did not err in affirming the RTC Joint Decision sustaining that of the MeTC because all the elements of violation of B.P. 22 are present in each case. Petitioner, on the other hand, maintains that since he did not receive a written notice of dishonor, not all the elements of the offense have been established by the prosecution. Accordingly, he should be acquitted.

We agree with petitioner. It is settled that factual findings of the trial court are accorded great weight, even finality on appeal, except when it has failed to appreciate certain facts and circumstances which, if taken into account, would materially affect the result of the case. This exception is present here.5 Section 1 of B.P. 22 provides: SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Thus, the prosecution must prove the following essential elements of the offense: (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.6

We find that the prosecution failed to prove the second element. To hold petitioner liable for violation of B.P. 22, it is not enough that the issued check was subsequently dishonored for insufficiency of funds. It must be shown beyond reasonable doubt that he knew of the insufficiency of funds at the time the check was issued.7 Hence, the law provides that he must be notified of the dishonor, thus: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit, unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.8 While it is true that ILYON, through its president, Benedict Tan, asked petitioner to pay the dishonored checks, however, such kind of notice is not the one required by B.P. 22. Under B.P. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must

also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper.9 In Domagsang v. Court of Appeals,10 we held that the notice of dishonor of a check to the maker must be in writing. A mere oral notice to the drawer or maker of the dishonor of his check is not enough, thus: While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law. i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal," a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused. (Emphasis supplied)

Since petitioner did not receive a written notice of dishonor of the checks, obviously, there is no way of determining when the 5-day period prescribed in Section 2 of B.P. 22 would start and end. Thus, the prima facie evidence of petitioners knowledge of the insufficiency of funds or credit at the time he issued the checks did not arise.11 We thus find that the prosecution failed to prove by evidence beyond reasonable doubt that petitioner is guilty of violations of B.P. 22. However, petitioner should pay the face value of the nine (9) dishonored checks plus legal interest. It is well settled that the civil liability is not extinguished by acquittal where such acquittal is based on lack of proof beyond reasonable doubt, since only preponderance of evidence is required in civil cases.12 We however modify the award of petitioners civil liability to ILYON from P417,500.00 to P425,250.00. In Criminal Case No. 14354, petitioner was acquitted by the RTC since the reason for the dishonor was his "stop payment order" to the drawee bank to enable VACHMAN to reconcile its accounts with ILYON. Hence, only the face value of the remaining nine (9) checks should be included in the computation of petitioners civil liability. Each check has a face value of P47,250.00 which, if we multiply by nine, yields P425,250.00.

WHEREFORE, we REVERSE the Decision of the Court of Appeals. Petitioner Francisco M. Bax is acquitted in Criminal Cases Nos. 14355 to 14363 for violations of B.P. 22 for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered, however, to pay the offended party, ILYON, the face value of the nine (9) checks in the total amount of P425,250.00 with 12% interest per annum from the filing of the Informations until fully paid. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 171449 October 23, 2006

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE D. LARA @ JOSE KALBO, accused-appellant. DECISION CHICO-NAZARIO, J.: For review is the Decision1 of the Court of Appeals in CA-G.R. CRH.C. No. 01140 which affirmed with modification the Decision2 of

the Regional Trial Court (RTC) of Caloocan City, Branch 128, finding accused-appellant guilty of Robbery with Homicide, Qualified Illegal Possession of Firearm and Robbery. On 31 January 1997, appellant Jose D. Lara, a.k.a. Joe Kalbo, was charged with Robbery with Homicide, Qualified Illegal Possession of Firearm and Robbery in Criminal Cases Nos. 97-13706, 9713707 and 97-13708, respectively, before the RTC of Antipolo, Rizal, under the following Informations: CRIM. CASE NO. 97-13706 That on or about the 27th day of January, 1997, in the Municipality of Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent of gain and by means of violence, force and intimidation, did then and there willfully, unlawfully and feloniously take, steal and carry away from Chito B. Arizala and divest him of a NORINCO 12 Gauge Shotgun with Serial No. 9600942, while the latter was in the performance of his duties as a Security Guard of Taurus Security Agency and Allied Services, without the consent of said Chito Arizala nor of the owner of the shotgun, Napoleon Y. Arnaiz, operator of said security agency, to the damage of the latter in the amount of P11,900.00 representing the value of the said shotgun, and by reason or on the occasion of the said robbery, and in pursuit of his evil intent and to defend possession of the stolen shotgun, said accused with intent to kill, and with

treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shot said Chito B. Arizala inflecting (sic) upon the latter mortal injuries thereby causing his instantaneously death.3 CRIM. CASE NO. 97-13707 That on or about the 27th day of January 1997 in the Municipality of Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to possess firearms with ammunition, and without authority or license to possess said firearms, nor permit to carry them outside his residence, did then and there willfully, unlawfully and feloniously have in his custody, control and possession a pistol of still unknown make and caliber and a NORINCO 12 Gauge shotgun with Serial No. 9600947 and having said firearms in his possession, did then and there willfully, unlawfully and feloniously use the same in killing Chito B. Arizala.4 CRIM. CASE NO. 97-13708 That on or about the 27th day of January 1997 in the Municipality of Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously rob and divest Chito Arizala of and take away from him, while the

latter was in the performance of his duties as a Security Guard of Taurus Security Agency and Allied Services, a NORINCO 12 Gauge Shotgun with Serial Number 9600947 with live ammunition valued at P11,900.00 and owned by Napoleon Y. Arnaiz without the said security guards or the owners consent, to the latters damage in the aforementioned amount.5 Upon motion by the Public Prosecutor, Criminal Cases Nos. 9713707 and 97-13708 cases, which were raffled to Branch 74, were ordered consolidated with Criminal Case No. 97-13706 before Branch 71 of the same court.6 On 16 April 1999, the cases were transferred to Branch 73, the latter being the branch designated to try heinous crimes.7 When arraigned on 3 June 1999, appellant, with the assistance of counsel de oficio, pleaded not guilty to the crimes charged.8 On 27 July 1999, upon agreement by the parties, the pre-trial of the cases was terminated. Thereafter, the cases were jointly tried.9 The Peoples evidence are as follows: The deceased victim, Chito B. Arizala, was a security guard of the Taurus Security Agency and Allied Services designated as officerin-charge of the security detachment, assigned to guard the premises of the Sanchez Estate at Manalite II, Brgy. Sta. Cruz, Antipolo City, then a municipality of Rizal. Among the security

guards under him was Nonilio Marfil, Jr. (TSN, Oct. 19, 1999, p. 8). Benjamin Alio, friend of the victim, testified that at around 6:00 p.m. of January 27, 1997, he met the victim Chito Arizala at the latters place of work, Sanchez Estate, Manalite II, Brgy. Sta. Cruz, Antipolo City to collect his P150.00 debt (TSN, Jan. 16, 2001, pp. 4-5). After Alio was paid and when he was about to leave, a bald man (appellant) arrived and had an argument with Arizala regarding the entry of construction materials being brought in by the squatters to the Sanchez Estate which Arizala opposed (TSN, ibid., pp. 6, 15-16). Without any warning, appellant punched Arizala (TSN, Id., p. 8). When Arizala fell to the ground, his shotgun slid from his shoulder and likewise fell down on the ground. Appellant then immediately grabbed and cocked the shotgun (TSN, Id., pp. 8, 16-17). Thus, Alio shouted, "Chito, takbo na!" Arizala ran towards the direction of the security guards barracks, while Alio proceeded to the direction of his home at Kamandag, Mayamot, Antipolo City. Appellant could not fire the shotgun since there was a number of people in the directions to which Arizala and Alio ran. The following day, Alio went to Masbate to buy fish. On February 13, 1997, when Alio went back home, he learned that Arizala had been killed (TSN, Id., p. 11). When asked to identify appellant in court, Alino stated that appellant was not in the court room. He, thus, identified appellant through the latters picture (TSN, Id., pp. 12-14).

Nonilio Marfil testified that on January 27, 1997, he was employed as a security guard by Napoleon Arnaizs Taurus Security Agency and was assigned to guard the construction materials at Sanchez Estate, Upper Manalite II, Brgy. Sta. Cruz, Antipolo City, along with other guards whom he identified as Yap, Velasco, Garcia, Abellar, and the victim Chito Arizala (TSN, Oct. 19, 1999, p. 8). Around 6:15 p.m. of said date, while Marfil was waiting for his reliever at their barracks, Arizala arrived and asked for Marfils shotgun because the one assigned to him was grabbed and taken away by appellant (TSN, Ibid., p. 9). Since the victim was both his superior and Officer-in-Charge, Marfil obliged (TSN, Id., p. 10). Arizala then instructed him and the other security guards to follow him. Thereafter, Arizala went ahead carrying Marfils service shotgun. When Arizala reached the corner, Marfil, who was following him, suddenly heard a gunshot and saw Arizala slowly falling to the ground. Then, he heard two or more shots and saw Arizala fall supine on the ground. When he was about to approach Arizala to get the shotgun and to help the latter, he heard another shot. So, he moved back for about ten (10) meters. Immediately thereafter, he saw appellant emerge from behind a concrete wall and take the shotgun that was lying on top of the chest of the fallen victim (TSN, Id., pp. 12-13). Fearing that he would be shot next, Marfil ran back to their barracks and asked his fellow security guards to

look after Arizalas body. After which, he proceeded to the place of the victims family to inform them of the incident (TSN, Id., p. 13). When Marfil, with Arizalas wife, went back to the crime scene, the people were already milling around the area and, thereafter, the police arrived. Pictures of the victim and the crime scene were taken (Exhibits "I" to "L") and an investigation was conducted (TSN, Id., pp. 14-15). Marfil positively identified appellant as well as the subject pictures taken from the crime scene. Roque D. Ogrimen, testified that around 6:20 p.m. of January 27, 1997, he was inside his house located at Upper Manalite II, Brgy. Sta. Cruz, Antipolo City. However, when he heard three (3) gunshots, he went out to investigate. He saw his water drum hit, causing its contents to leak through the three holes, and his window pane was broken. Ogrimen likewise saw appellant from a distance of about twenty-five (25) meters and witnessed what the latter did to Arizala, because his view was unblocked (TSN, July 29, 1999, p. 21) and the crime scene was well lighted (TSN, Ibid., pp. 21-22). When he first saw Arizala, the latter was already lying supine on the ground. Then Ogrimen saw appellant, who was holding a handgun. Appellant approached Arizala, belted the handgun, took the shotgun that was then lying on top of Arizalas body, cocked said shotgun, then stepped backwards, and fired two (2) shots at the fallen Arizala (TSN, Id., pp. 7-8, 14). After firing the two (2) shots, appellant walked away, holding the

shotgun he took from and used to shoot Arizala (TSN, Id., pp. 9, 27-28). Thereafter, Ogrimen went to the police station to report the incident. Thus, SPO1 Reynaldo Anclote responded to Ogrimens call and supervised the picture-taking of the crime scene. Ogrimen identified the photographs of the drum riddled with holes and his broken glass window (Exhibits "A" and "B"). SPO1 Anclote was also shown in the photographs recovering bullets from the drum. Ogrimen explained that there is no mention of appellant shooting the victim with a shotgun in his Affidavit dated January 27, 1997 (Exhibit "I"), because this contains only his answers to the questions of the investigating officer at the time he executed the subject affidavit (TSN, July 29, 1999, p. 15). Salvador Tejada, an employee of Taurus Security Agency and Allied Services, testified that victim Chito Arizala and Nonilio Marfil, Jr. were, on January 27, 1997, their employees as security guards. At the time of the incident, Arizala was the Officer-in-Charge of the Sanchez Realty Estate located at Manalite II, Sta. Cruz, Antipolo City, where Marfil was also assigned. As such, Arizala and Marfil were issued service firearms pursuant to Mission Order Nos. 96080012 and 96080013, both dated August 12, 1996, respectively (Exhibits "C" and "D"; TSN, July 29, 1999, p. 46). The two (2) firearms issued were with Serial No. 9600942 (to Arizala [TSN, Ibid., 49]) and No. 9600947 (to Marfil [TSN, Ibid., p. 46]),

both with 5 ammunition (Exhibits "E" and "F"), and both valued at P11,900.00 each (Exhibits "C" and "H" [TSN, Ibid., p. 50]). The subject firearms were both Norinco Caliber Shotgun 12 gauge, covered by temporary license issued on August 15, 1996 and September 6, 1996, respectively, that remained valid and in force until the issuance of the regular computerized licenses, namely, Firearm License Nos. RL-M76C1610878 and RL-M76C1618080 on April 28, 1997 (TSN, Jan. 25, 2000, pp. 7-8). The fact of the loss of the two subject firearms was reported and, accordingly, the Firearms and Explosives Division had declared them lost per Official Receipt 1726642 dated September 7, 1999, covering the payment of an administrative fine. SPO1 Reynaldo Anclote conducted the on-the-spot investigation of the shooting of Arizala on January 27, 1997 at Upper Manalite II, Sta. Cruz, Antipolo City. From the crime scene, he was able to recover two (2) pieces of spent shotgun shells and three (3) bullets (TSN, Nov. 14, 2000), for which he requested the "PCCL and Ballistic Command" for ballistic examinations (TSN, Ibid., p. 6). He personally delivered the request letter to the Criminal Investigation Division at EDSA Kamuning, Quezon City (TSN, Nov. 14, 2000, p. 8; Exh. "X"). He identified the spent shells he turned over to the said office through the initial "A" that he wrote thereon.

SPO1 Anclote supervised the pictures taken at the scene of the crime (TSN, Nov. 14, 2000, pp. 15-17; Exhibits "D", "I", "K", "L"). When he arrived at the crime scene, the victim was already lying dead on the ground (TSN, Nov. 14, 2000, p. 21). P/Sr. Insp. Abraham Pelotin, Firearms Examiner of the PNP Crime Laboratory, Northern Field Office, testified that between February 3 and 19, 1997, he conducted a ballistic examination on some cartridges of a 12-gauge shotgun and three deformed bullets/pellets which were involved in the shooting of Arizala. He conducted a test firing and compared the specimen, subjecting them to physical and microscopic examination. His testing/examination was made upon the request by the Criminal Investigation Office (Exhibit "N"; TSN, Nov. 17, 1999, pp. 4-6, 1112). P/Sr. Insp. Pelotin identified his Report FAIB-009097 (Exhibit "M") and declared that the pellet he examined measured 3.3 millimeters, which, based on the size and weight, appears to have come only from a 12-gauge shotgun. Pelotin admitted that although the pellet may be similar to that of a 9-gauge shotgun, however he clarified that no striation on any two bullets are alike (TSN, Ibid., pp. 6-12). SPO2 Wilfred Tagola of the Firearm and Explosives Division, Camp Crame, Quezon City, testified on the authenticity of the

Certification dated October 18, 1999 duly issued by his office (Exhibit "D") showing that two (2) Norinco Shotguns, 12-gauge with Serial Number 9600942 and Serial Number 9600947 at the time of Arizalas shooting on January 27, 1997, were duly licensed and registered in the Firearms and Explosives Division, Camp Crame, Quezon City to Taurus Security and Allied Services (Exhibits "O" and "R") (TSN, March 28, 2000, pp. 6-7). SPO2 Tagola likewise testified on the authenticity of the Certification dated June 1, 2000, stating that appellant Jose David Lara of Upper Manalite II, Brgy. Sta. Cruz, Antipolo City is not a licensed/registered firearm holder of any kind or caliber (Exhibit "W"). Dr. Floresto Arizala, Jr., a medico-legal officer, testified that he conducted an autopsy on the body of the victim. His finding that the victim sustained "gunshot wounds as well as shotgun wounds" was contained in his Medico-Legal Report No. 97-177 (Exhibit "S"). He likewise illustrated in two anatomical sketches the injuries sustained by the victim (Exhibits "T" and "U"; TSN, March 29, 2000, pp. 7-8). After his autopsy of the victim, he issued a Certificate of Post Mortem Exmaination (Exhibit "V"). Dr. Arizala found gunshot wound No. 1, which measures 3 x 7 cm. fatal, because the bullet entered the victims brain cavity through his forehead (TSN, March 29, 2000, p. 11). Barely on top of

gunshot wound No. 1, is gunshot wound No. 2, a gunshot grazma wound measuring 1.5 cm. (TSN, Ibid., p. 9). Shotgun wound No. 1, with entrance wound measuring 3.5 x 2.5 cm. is likewise fatal as it was inflicted at the deceaseds abdominal area, injuring his intestine, spine and colon and with seven (7) exit wounds at the back of the victims body where two (2) metallic fragments were recovered (TSN, Id., pp. 10-12). The wounds sustained by the victim were caused by a handgun and a shotgun (TSN, Id., pp. 17-24-25). From the tattooing seen on the victims body, Dr. Arizala concluded that the muzzle of the shotgun was probably a yard away from the victim when it was fired (TSN, Id., pp. 14-15, 25). It is possible that the assailant was standing while the victim was lying down, when shotgun wound No. 1 was inflicted (TSN, Id., p. 15). It is likewise possible that when shotgun wound No. 2, was inflicted, the assailant fired at his level while the victim was standing (TSN, id., p. 16). Shotgun wound No. 2, with entrance wound measuring 3.5 x 2.5 cm. (TSN, Id., p. 10) and with exit wounds at the back left side of the victim (TSN, p. 13), was also fatal since this was inflicted at the part of the body where vital organs are located (TSN, Id., p. 14). Maria Arizala, wife of the victim, testified that they have a ten-year old child and her husband was earning P4,500.00 a month for his work as a security guard (Exhibit "L").

Delia Arizala-Par, sister of victim, testified that she shouldered the funeral expenses of her brother and presented various expense receipts relative thereto (Exhibits "AA" to "GG") amounting to the sum of P170,805.25. She also presented the victims birth certificate Exhibit "II").10 While the prosecution was in the process of adducing its evidence, appellant escaped from detention.11 After the prosecution rested its case, the lower court granted the prosecutions motion to declare appellant to have waived his right to present evidence and to consider him a fugitive from justice.12 In a Decision dated 3 March 2003,13 the trial court found appellant guilty of the charges, the dispositive portion of which reads: WHEREFORE, premises considered, accused JOSE LARA Y DAVID is hereby found guilty beyond reasonable doubt in Criminal Case Nos. 97-13706, 97-13707 and 97-13708. Said accused is hereby sentenced to suffer the following penalties: For Criminal Case No. 97-13706 - Death For Criminal Case No. 97-13707

- Prision Mayor minimum period pursuant to the provision of P.D. 1866 as amended by RA 8292 plus a fine of P30,000. For Criminal Case No. 97-13708 - imprisonment for 4 years 2 months of Prision Correccional as minimum to 10 years of Prision Mayor as maximum. Further, the accused is hereby order (sic) to pay to the heirs of Chito Arizala P170,805.25 as actual damages, P200,000 as moral damages, P50,000 as death indemnity, P648,000 for the victims loss of earning capacity and P100,000 as exemplary damages. And to indemnify Taurus Security Agency and Allied Services in the amount of P24,800.14 Considering that the death penalty was imposed on appellant, the records were forwarded to the Supreme Court for automatic review. There being an automatic review, we denied appellees motion to dismiss dated 29 March 2005 which claimed that appellant lost his right to appeal in view of his escape from the Rizal Provincial Jail. Conformably with Our ruling in People v. Mateo,15 the case was remanded to the Court of Appeals for appropriate action and disposition.16 On 22 December 2005, the Court of Appeals affirmed appellants conviction of Robbery with Homicide and Robbery, but acquitted

him for Qualified Illegal Possession of Firearm. It disposed of the case as follows: UPON THE VIEW WE TAKE OF THIS CASE, THUS, the appealed Decision dated March 3, 2003 of the Regional Trial Court of Antipolo City, Branch 73, in Crim. Cases Nos. 97-13706, 97-13707 and 97-13708, convicting the accused-appellant Jose D. Lara (alias "Jose Kalbo") of the crimes of robbery with homicide, qualified illegal possession of firearms and robbery is hereby MODIFIED, as follows: 1. In Crim. Case No. 97-13706 (for robbery with homicide), the accused-appellant is sentenced to suffer the supreme penalty of death. 2. In Crim. Case No. 97-13707 (for qualified illegal possession of firearms), the sentence imposed on the accused-appellant is nullified and set aside and the accused-appellant acquitted of the indictment against him. 3. In Crim. Case No. 97-13708 (for robbery), the accusedappellant is sentenced to an indeterminate prison term of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and twenty (20) days of prision mayor, as maximum.

The accused-appellant is likewise ordered to pay the following amounts to the heirs of the victim: (a) P75,000.00 as civil indemnity; (b) P666,000.00 as indemnity for the lost earnings of the victim; (c) P50,000.00 as moral damages; (d) P25,000.00 as exemplary damages; and (e) P170,805.25 as actual damages. He is further ordered to indemnify Taurus Security Agency and Allied Services in the amount of P23,800.00. Let Criminal Case No. 9713706 and Criminal Case No. 97-13708, along with the entire records, be certified and elevated for review to the Supreme Court pursuant to A.M. No. 00-5-03 SC, effective October 15, 2004.17 On account of appellants acquittal in Criminal Case No. 97-13707, a partial entry of judgment has been made in said case.18 With the elevation of the records to the Supreme Court, the parties were required to submit supplemental briefs within thirty (30) days from notice.19 The parties opted not to file supplemental brief on the ground they have fully argued their positions in their respective briefs.20 Appellant makes a lone assignment of error: THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED DESPITE THE EXISTENCE OF REASONABLE DOUBT IN HIS FAVOR.

Appellant argues the trial court erred in relying on the testimonies of prosecution witnesses Roque Ogrimen, Nonilio Marfil and Benjamin Alio there being glaring inconsistencies therein. The alleged inconsistencies are: First, Ogrimen testified on direct examination that he saw appellant pick up the shotgun from the victims chest when the latter fell to the ground, but on crossexamination, he admitted he never mentioned such fact in his affidavit dated 27 January 1997; Second, Marfils testimony on direct examination gave the impression that appellant shot the victim, but on cross-examination, he admitted he did not actually see appellant shoot the victim; Third, on direct examination, Alio alleged that appellant and the victim had an argument before the shooting, but when cross-examined, he said he ran away from the scene without seeing the appellant actually shoot the victim. These contradictory statements and omission of important details, he claims, erode the credence of their testimonies. Roque Ogrimens failure to mention in his affidavit that he saw appellant pick up the shotgun from the victims chest when the latter fell to the ground is not sufficient to discredit his testimony. We agree with the Court of Appeals that such omission relates to a minor and insignificant detail that will not substantially contradict Ogrimens testimony in court that he saw appellant shoot the victim twice with the latters shotgun.21 Oftentimes, affidavits taken ex parte are considered inaccurate as they are prepared by other persons who use their own language in writing the affiants statements. Omissions and misunderstandings by the writer are

not infrequent, particularly under circumstances of haste or impatience. Thus, more often than not, affidavits do not reflect precisely what the declarant wants to impart.22 Omissions in the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him.23 In fact, Ogrimen satisfactorily explained in court the omission by saying he only answered the questions asked by the policemen.24 Despite said omission, Ogrimen was categorical in his affidavit that it was appellant who took the shotgun from the victim who was already lying supine on the ground. His declarations in his Affidavit read: T: Sino naman ang bumaril at nakapatay dito sa sinasabing si Arizala kung iyong nakikilala? xxxx T: Sa ikaliliwanag ng pagsisiyasat na ito maari bang isalaysay mo sa akin ang buong pangyayari sa iyong nasaksihang barilan? S: Opo, ng mga oras na iyon ay nasa loob ako ng aming bahay at nanonood ng TV ng makarining akong tatlong (3) sunodsunod na putok ng baril, dahil parang malapit sa bahay naming ang aking mga narinig na putok ay aking itinago ang aking mga anak, pati na rin ang misis ko ay aking pinatago sa loob ng kuwarto, pagkatapos ay nakarinig uli ako ng isa (1) putok,

tumakbo ako palabas at duon ako nagdaan sa kusina naming, pagkalabas ko ay aking nakita si JOSE LARA na may hawak pang baril na eskwala at lumapit sya kay ARIZALA na nakabulagta sa lupa at kinuha ang baril na shotgun na hawak pa ni Arizala x x x.25 As regards the alleged inconsistency of Nonilio Marfil in his testimony, we find the same does not exist. In his direct examination, Marfil never testified that he saw appellant shoot the victim. He said that when the victim reached the corner of a concrete wall, he heard a gunshot and saw the victim slowly falling to the ground. He then heard two more gunshots and saw the victim fall supine on the ground. When he was about to approach the victim to get his shotgun so he can help the latter, he heard another gunshot causing him to move 10 meters back. It was then that he saw appellant emerge behind the concrete wall and take the shotgun that was on top of the victims chest. Fearing that he would be shot next, he retreated to their barracks. His testimony is as follows: A: When we followed him, while we were walking, and when Chito reached the corner of the wall, I suddenly heard gunshot and I saw Chito Arizala falling down slowly. Q: When you heard the shot and you saw Chito slowly falling downwards, what happened next, if there was any?

A: I heard another two shots before his body laid sprawled on the ground. Q: When the body of Chito Arizala fell on the ground what else happened, if any? A: I was intending to approach him to get the shotgun and also to help him but I heard another shot. Q: A: Q: A: Q: A: After you heard another shot, what else happened if any? I stepped back. After you have stepped back, what else happened, if any? After I have stepped back ten meters, I stopped. Why did you stop? I saw Jose Lara come out behind the wall.

Q: You said you saw Jose Lara appearing from behind the concrete wall, are you referring to the same Jose Lara whom you identified before? A: Yes, sir.

Q: After you saw him appear in the open from behind the concrete wall, what else happened, if any? A: I saw him took (sic) the shotgun which was on top of the chest of Chito Arizala. Q: What did Jose Lara do after he has taken the shotgun from Chito Arizala? A: After that I left, sir, because he might see me and he might also shoot me. Q: You said that Jose Lara took that shot gun that was lying on top of the chest of Chito, are you referring to the same shotgun that was covered by your mission order? A: Yes, sir.

Q: You said "pader", when you said "pader," what does that mean? A: A concrete fence.

Q: You said you left because you were afraid because you might be shot also, what did you do?

A:

I returned to the barracks.26

There is likewise no inconsistency in Benjamin Alinos testimony in his direct examination that appellant and the victim had an argument before the shooting, and his admission on crossexamination that he ran away from the crime scene without seeing appellant shoot the victim. We find the findings of fact of the trial court to be in accord with the evidence on record. When it comes to credibility, the trial courts assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate properly testimonial evidence.27 In the case at bar, we have no reason to depart from this principle and to apply the exception. The testimonies of Roque Ogrimen and Nonilio Marfil clearly establish the guilt of appellant as the assailant who took two shotguns from the victim. On top of such damning evidence, no evidence was adduced by the defense because appellant escaped detention, thus waiving his right to do so. Flight is a strong indication of guilt when it is done to escape from the authorities or to escape prosecution.28

Having established the guilt of appellant, we now determine what crime or crimes he committed. It is clear from the evidence that appellant and the victim had a heated argument. Appellant punched the victim causing the latter to fall to the ground. The victims service shotgun (Norinco 12-Gauge Shotgun bearing Serial No. 9600942) also fell to the ground which the appellant grabbed and cocked. The victim ran towards the security guards barracks while appellant, in possession of the shotgun, proceeded towards his home. At the barracks, the victim asked Nonilio Marfil for his (Marfil) service shotgun (Norinco 12-Gauge Shotgun bearing Serial No. 9600947) explaining to the latter that his (victim) shotgun was taken away by the appellant. The victim being his superior and Officer-In-Charge, Marfil obliged and handed over his shotgun to the victim. The victim then instructed Marfil and the other security guards to follow him. With a shotgun on hand, the victim went ahead to retrieve his shotgun. When the victim reached the corner of a concrete wall, a shot rang out and the victim slowly fell to the ground. Two or more shots followed and the victim lay supine on the ground. Appellant emerged from behind the concrete wall holding a handgun. He approached the victim, tucked the handgun in his waistband, and took the shotgun that was on top of the victims body. Appellant cocked the shotgun, stepped backwards and then fired two shots at the fallen victim. Thereafter, appellant walked away with the (second) shotgun. Appellant was charged with Robbery with Homicide (Criminal Case No. 97-13706), Qualified Illegal Possession of Firearm (Criminal

Case No. 97-13707) and Robbery (Criminal Case No. 97-13708). The trial court found him guilty as charged. The Court of Appeals, however, exonerated him of the charge of Qualified Illegal Possession of Firearm. We agree with appellants acquittal of the charge of Qualified Illegal Possession of Firearm. With the effectivity of Republic Act No. 829429 on 6 July 1997, the use of an unlicensed firearm in the commission of homicide or murder is no longer treated as a separate offense, but only as a special aggravating circumstance.30 Thus, where an accused used an unlicensed firearm in committing homicide or murder, he may no longer be charged with what used to be two separate offenses of homicide or murder under the Revised Penal Code and qualified illegal possession of firearms used in homicide or murder under Presidential Decree No. 1866.31 Although the killing was committed on 27 January 1997, being favorable to appellant who was not shown to be a habitual delinquent, the amendatory law was properly given retroactive application pursuant to Article 22 of the Revised Penal Code.32 Thus, insofar as it spared appellant a separate conviction for illegal possession of firearms, Republic Act No. 8294 has to be given retroactive application in Criminal Case No. 97-13707. We now go to the convictions in Criminal Case No. 97-13706 for Robbery with Homicide, and Criminal Case No. 97-13708 for Robbery, which the Court of Appeals upheld.

In the offense of robbery with homicide, a crime primarily classified as one against property and not against persons, the prosecution has to firmly establish the following elements: (a) the taking of personal property with the use of violence or intimidation against the person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed.33 The accused must be shown to have the principal purpose of committing robbery, the homicide being committed either by reason of or on occasion of the robbery.34 The intent to rob must precede the taking of human life. So long as the intention of the felons was to rob, the killing may occur before, during or after the robbery.35 The original design must have been robbery, and the homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or must be perpetrated with a view to consummate the robbery. The taking of the property should not be merely an afterthought which arose subsequently to the killing.36 We disagree with the Court of Appeals that appellant committed the crime of robbery with homicide in Criminal Case No. 97-13706. There is nothing in the records that would show that the principal purpose of appellant was to rob the victim of his shotgun (Serial No. 9600942). It must be emphasized that when the victim and appellant met and had a heated argument, the absence of the

intent to rob on the part of the appellant was apparent. Appellant was not trying to rob the victim. Appellants act of taking the shotgun was not for the purpose of robbing the victim, but to protect himself from the victim. No one would in ones right mind just leave a firearm lying around after being in a heated argument with another person. Having failed to establish that appellants original criminal design was robbery, appellant could only be convicted of the separate crimes of either murder or homicide, as the case may be, and theft.37 Without a doubt, the intention of appellant was to kill the victim. Said intention was very clear when he treacherously waited for the victim at the corner of the concrete fence. The number of shots appellant fired at the victim and the way he snuffed out the victims life by firing two shots from the shotgun at very close range further support this conclusion. We now go to the nature of the crime committed by appellant. Though appellant was charged with robbery with homicide in Criminal Case No. 97-13706, we find him guilty of murder under Article 248 of the Revised Penal Code and theft under Article 309 of the same Code. It is axiomatic that the nature and character of the crime charged are determined not by the designation of the specific crime, but by the facts alleged in the information.38 We likewise find that treachery attended the killing. There is treachery in a sudden and unexpected attack which renders the victim unable to defend himself by reason of the suddenness and

severity of the attack.39 In the case at bar, the victim was ambushed when he reached the corner of a concrete fence where appellant was waiting. The victim was not even able to fire a shot because the attack was so sudden and unexpected. Treachery is also evident from the fact that the victim was even shot twice when he was already lying supine on the ground. Since treachery was properly alleged in the information, same can be used to qualify the killing to murder. The Information in Criminal Case no. 97-13706 likewise alleged the qualifying circumstance of evident premeditation. Evident premeditation may not be appreciated where there is no proof as to how and when the plan to kill was hatched or the time that elapsed before it was carried out.40 In the case at bar, the prosecution failed to establish that evident premeditation attended the killing. As regards the special aggravating circumstance of use of an unlicensed firearm in a murder or homicide, same cannot also be considered. Inasmuch as the use of an unlicensed firearm is now considered as a special aggravating circumstance which would not merit the imposition of the supreme penalty of death, the same must be specially alleged in the Information.41 The Information in Criminal Case No. 97-13706 failed to allege this circumstance. As to Criminal Case No. 97-13708, appellant should only be liable for theft. The fact that appellant took the shotgun (Serial No.

9600947) from the victim when he was already lying on the ground does not necessarily mean that he committed robbery. It must be remembered that the taking of the second shotgun was intimately connected with the killing of the victim. When appellant waited for the victim to come his way, his intention was evidently to kill and not to rob inasmuch as appellant was not intending to rob the victim of any of his personal belongings, more particularly, a second shotgun. The taking of the second shotgun was clearly an afterthought that arose after he killed the victim. We now go to the proper imposition of the penalties. Appellant is guilty of Murder and two counts of theft. The penalty for murder is reclusion perpetua to death. Article 63 of the Revised Penal Code states that when the law prescribes a penalty consisting of two indivisible penalties and the crime is neither attended by mitigating nor aggravating circumstances, the lesser penalty shall be imposed. Thus, for the murder of Chito Arizala, there being no other mitigating or aggravating circumstance attending the same, the penalty imposed on appellant is reduced from death to reclusion perpetua. The penalty for theft where the value of the stolen article is P11,900.00 is prision correccional in its medium and maximum periods. Since appellant escaped from confinement, the Indeterminate Sentence Law will not apply.42 Thus, appellant is

sentenced to four years, nine months and ten days of prision correccional for each count of theft. As regards the award of damages, the same must be modified. The P75,000.00 awarded by the Court of Appeals as civil indemnity must be reduced to P50,000.00. The amount of P75,000.00 as civil indemnity is awarded only if the crime is qualified by circumstances which warrant the imposition of the death penalty.43 With respect to the award of moral damages, the amount of P50,000.00 was correctly awarded pursuant to Articles 2217 and 2219 paragraph 1 of the Civil Code. In the case at bar, the victims wife testified on this matter.44 We award the amount of P665,999.99 as indemnity for lost earnings of the victim. The prosecution was able to prove that Chito Arizala, at the time of his death, was 43 years old with a monthly income of P4,500.00.45 The indemnity for the loss of the victims earning capacity46 is computed as follows: Net earning capacity = Life expectancy47 x (Gross annual income living expenses48)

Net earning capacity = 2/3 (80-43) x (P54,000 P27,000) = 24.666 x P27,000 = P665,999.99949 The award of P170,805.25 as actual damages is also affirmed. Said amount representing hospital, funeral and burial expenses, is supported by documentary evidence.50 As for exemplary damages, the award of P25,000.00 is in order in light of the presence of the qualifying circumstance of treachery. Lastly, the award of the amount of P23,800.00 as indemnity to Taurus Security Agency and Allied Services for the two stolen shotguns is proper.

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01140 is hereby MODIFIED as follows: 1. In Criminal Case No. 97-13706, appellant is found GUILTY beyond reasonable doubt of the crime of Murder and is sentenced to suffer the penalty of reclusion perpetua. He is likewise found GUILTY beyond reasonable doubt of the crime of Theft and is sentenced to suffer the penalty of Four (4) years, Nine (9) months and Ten (10) days of prision correccional. 2. In Criminal Case No. 97-13708, appellant is found GUILTY of the crime of Theft. He is sentenced to suffer the penalty of Four (4) years, Nine (9) months and Ten (10) days of prision correccional. Appellant is ordered to pay the following amounts to the heirs of the victim: (a) P50,000.00 as civil indemnity; (b) P665,999.99 as indemnity for the lost earnings of the victim; (c) P50,000.00 as moral damages; (d) P170,805.25 as actual damages; and (e) P25,000.00 as exemplary damages. He is further ordered to indemnify Taurus Security Agency and Allied Services in the amount P23,800.00. SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Garcia, and Velasco, Jr., JJ., concur.

G.R. No. 181409. February 11, 2010.* INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE CARUNGCONG, represented by MEDIATRIX CARUNGCONG, as Administratrix, petitioner, vs. PEOPLE OF THE PHILIPPINES and WILLIAM SATO, respondents. Criminal Law; Absolutory Cause; Estafa; Article 332 provides for an absolutory cause in the crimes of theft, estafa (or swindling) and malicious mischief. It limits the responsibility of the offender to civil liability and frees him from criminal liability by virtue of his relationship to the offended party.Article 332 provides for an absolutory cause in the crimes of theft, estafa (or swindling) and malicious mischief. It limits the responsibility of the offender to civil liability and frees him from criminal liability by virtue of his relationship to the offended party. Same; Same; Same; The continuing affinity view has been applied in the interpretation of laws that intend to benefit step-relatives or

in-laws. Since the purpose of the absolutory cause in Article 332(1) is meant to be beneficial to relatives by affinity within the degree covered under the said provision, the continuing affinity view is more appropriate.The terminated affinity view is generally applied in cases of jury disqualification and incest. On the other hand, the continuing affinity view has been applied in the interpretation of laws that intend to benefit step-relatives or in-laws. Since the purpose of the absolutory cause in Article 332(1) is meant to be beneficial to relatives by affinity within the degree covered under the said provision, the continuing affinity view is more appropriate. Same; Information; The recital of facts of the commission of the offense, not the nomenclature of the offense, that determines the crime being charged in the Information. It is the exclusive province of the court to say what the crime is or what it is named. The determination by the prosecutor who signs the Information of the crime committed is merely an opinion which is not binding on the court.The Information against Sato charges him with estafa. However, the real nature of the offense is determined by the facts alleged in the Information, not by the designation of the offense. What controls is not the title of the Information or the designation of the offense but the actual facts recited in the Information. In other words, it is the recital of facts of the commission of the

offense, not the nomenclature of the offense, that determines the crime being charged in the Information. It is the exclusive province of the court to say what the crime is or what it is named. The determination by the prosecutor who signs the Information of the crime committed is merely an opinion which is not binding on the court. Same; Estafa; To apply Article 332 to the complex crime of estafa through falsification of public document would be to mistakenly treat the crime of estafa as a separate simple crime, not as the component crime that it is in that situation. It would wrongly consider the indictment as separate charges of estafa and falsification of public document, not as a single charge for the single (complex) crime of estafa through falsification of public document.The absolutory cause under Article 332 is meant to address specific crimes against property, namely, the simple crimes of theft, swindling and malicious mischief. Thus, all other crimes, whether simple or complex, are not affected by the absolutory cause provided by the said provision. To apply the absolutory cause under Article 332 of the Revised Penal Code to one of the component crimes of a complex crime for the purpose of negating the existence of that complex crime is to unduly expand the scope of Article 332. In other words, to apply Article 332 to the complex crime of estafa through falsification of public

document would be to mistakenly treat the crime of estafa as a separate simple crime, not as the component crime that it is in that situation. It would wrongly consider the indictment as separate charges of estafa and falsification of public document, not as a single charge for the single (complex) crime of estafa through falsification of public document. Same; Same; Absolutory Cause; The action provided under the said provision simply concerns the private relations of the parties as family members and is limited to the civil aspect between the offender and the offended party. When estafa is committed through falsification of a public document, however, the matter acquires a very serious public dimension and goes beyond the respective rights and liabilities of family members among themselves. Effectively, when the offender resorts to an act that breaches public interest in the integrity of public documents as a means to violate the property rights of a family member, he is removed from the protective mantle of the absolutory cause under Article 332.The purpose of Article 332 is to preserve family harmony and obviate scandal. Thus, the action provided under the said provision simply concerns the private relations of the parties as family members and is limited to the civil aspect between the offender and the offended party. When estafa is committed through falsification of a public document, however, the matter

acquires a very serious public dimension and goes beyond the respective rights and liabilities of family members among themselves. Effectively, when the offender resorts to an act that breaches public interest in the integrity of public documents as a means to violate the property rights of a family member, he is removed from the protective mantle of the absolutory cause under Article 332. Same; Complex Crimes of Estafa through Falsification of Public Documents; In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes where the same criminal intent results in two or more component crimes constituting a complex crime for which there is only one criminal liability. (The complex crime of estafa through falsification of public document falls under this category.) This is different from a material (or real) plurality of crimes where different criminal intents result in two or more crimes, for each of which the accused incurs criminal liability. The latter category is covered neither by the concept of complex crimes nor by Article 48.In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes where the same criminal intent results in two or more component crimes constituting a complex crime for which there is only one criminal liability. (The complex crime of estafa through falsification of public document falls under this category.) This is different from a

material (or real) plurality of crimes where different criminal intents result in two or more crimes, for each of which the accused incurs criminal liability. The latter category is covered neither by the concept of complex crimes nor by Article 48. Same; Same; The phrase necessary means does not connote indispensable means for if it did, then the offense as a necessary means to commit another would be an indispensable element of the latter and would be an ingredient thereof. In People v. Salvilla, the phrase necessary means merely signifies that one crime is committed to facilitate and insure the commission of the other. The phrase necessary means does not connote indispensable means for if it did, then the offense as a necessary means to commit another would be an indispensable element of the latter and would be an ingredient thereof. In People v. Salvilla, 184 SCRA 671 (1989), the phrase necessary means merely signifies that one crime is committed to facilitate and insure the commission of the other. In this case, the crime of falsification of public document, the SPA, was such a necessary means as it was resorted to by Sato to facilitate and carry out more effectively his evil design to swindle his mother-in-law. In particular, he used the SPA to sell the Tagaytay properties of Manolita to unsuspecting third persons.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals. The facts are stated in the opinion of the Court. Franco L. Loyola for petitioner. Agabin, Verzola & Layaoen Law Offices for private respondent. DECISION CORONA, J.: Article 332 of the Revised Penal Code provides: ART. 332. Persons exempt from criminal liability. No criminal, but only civil liability shall result from the commission of the crime of theft, swindling, or malicious mischief committed or caused mutually by the following persons: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line; 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and 3. Brothers and sisters and brothers-in-law and sisters-inlaw, if living together.

The exemption established by this article shall not be applicable to strangers participating in the commission of the crime. (emphasis supplied) For purposes of the aforementioned provision, is the relationship by affinity created between the husband and the blood relatives of his wife (as well as between the wife and the blood relatives of her husband) dissolved by the death of one spouse, thus ending the marriage which created such relationship by affinity? Does the beneficial application of Article 332 cover the complex crime of estafa thru falsification? Mediatrix G. Carungcong, in her capacity as the duly appointed administratrix1 of petitioner intestate estate of her deceased mother Manolita Gonzales vda. de Carungcong, filed a complaintaffidavit2 for estafa against her brother-in-law, William Sato, a Japanese national. Her complaint-affidavit read: I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of legal age, single, and resident of Unit 1111, Prince Gregory Condominium, 105 12th Avenue, Cubao, Quezon City, after being duly sworn, depose and state that: 1. I am the duly appointed Administratrix of the Intestate Estate of Manolita Carungcong Y Gonzale[s], docketed as Spec. Procs. No. [Q]-95-23621[,] Regional Trial Court of Quezon City, Branch 104, being one (1) of her surviving daughters. Copy of the Letters of Administration dated June

22, 1995 is hereto attached as Annex "A" to form an integral part hereof. 2. As such Administratrix, I am duty bound not only to preserve the properties of the Intestate Estate of Manolita Carungcong Y Gonzale[s], but also to recover such funds and/or properties as property belonging to the estate but are presently in the possession or control of other parties. 3. After my appointment as Administratrix, I was able to confer with some of the children of my sister Zenaida Carungcong Sato[,] who predeceased our mother Manolita Carungcong Y Gonzales, having died in Japan in 1991. 4. In my conference with my nieces Karen Rose Sato and Wendy Mitsuko Sato, age[d] 27 and 24 respectively, I was able to learn that prior to the death of my mother Manolita Carungcong Y Gonzale[s], [s]pecifically on o[r] about November 24, 1992, their father William Sato, through fraudulent misrepresentations, was able to secure the signature and thumbmark of my mother on a Special Power of Attorney whereby my niece Wendy Mitsuko Sato, who was then only twenty (20) years old, was made her attorney-in-fact, to sell and dispose four (4) valuable pieces of land in Tagaytay City. Said Special Power of Attorney, copy of which is attached as ANNEX "A" of the Affidavit of Wendy Mitsuko Sato, was signed and thumbmark[ed] by my mother because William Sato told her that the documents

she was being made to sign involved her taxes. At that time, my mother was completely blind, having gone blind almost ten (10) years prior to November, 1992. 5. The aforesaid Special Power of Attorney was signed by my mother in the presence of Wendy, my other niece Belinda Kiku Sato, our maid Mana Tingzon, and Governor Josephine Ramirez who later became the second wife of my sisters widower William Sato. 6. Wendy Mitsuko Sato attests to the fact that my mother signed the document in the belief that they were in connection with her taxes, not knowing, since she was blind, that the same was in fact a Special Power of Attorney to sell her Tagaytay properties. 7. On the basis of the aforesaid Special Power of Attorney, William Sato found buyers for the property and made my niece Wendy Mitsuko Sato sign three (3) deeds of absolute sale in favor of (a) Anita Ng (Doc. 2194, Page No. 41, Book No. V, Series of 1992 of Notary Public Vicente B. Custodio), (b) Anita Ng (Doc. No. 2331, Page No. 68, Book No. V, Series of 1992 of Notary Public Vicente B. Custodio) and (c) Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II, Series of 1993 of Notary Public Toribio D. Labid). x x x 8. Per the statement of Wendy Mitsuko C. Sato, the considerations appearing on the deeds of absolute sale were

not the true and actual considerations received by her father William Sato from the buyers of her grandmothers properties. She attests that Anita Ng actually paid P7,000,000.00 for the property covered by TCT No. 3148 and P7,034,000.00 for the property covered by TCT No. 3149. All the aforesaid proceeds were turned over to William Sato who undertook to make the proper accounting thereof to my mother, Manolita Carungcong Gonzale[s]. 9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee Tsai paid P8,000,000.00 for the property covered by Tax Declaration No. GR-016-0735, and the proceeds thereof were likewise turned over to William Sato. 10. The considerations appearing on the deeds of sale were falsified as Wendy Mitsuko C. Sato has actual knowledge of the true amounts paid by the buyers, as stated in her Affidavit, since she was the signatory thereto as the attorney-in-fact of Manolita Carungcong Y Gonzale[s]. 11. Wendy was only 20 years old at the time and was not in any position to oppose or to refuse her fathers orders. 12. After receiving the total considerations for the properties sold under the power of attorney fraudulently secured from my mother, which total P22,034,000.00, William Sato failed to account for the same and never delivered the proceeds to

Manolita Carungcong Y Gonzale[s] until the latter died on June 8, 1994. 13. Demands have been made for William Sato to make an accounting and to deliver the proceeds of the sales to me as Administratrix of my mothers estate, but he refused and failed, and continues to refuse and to fail to do so, to the damage and prejudice of the estate of the deceased Manolita Carungcong Y Gonzale[s] and of the heirs which include his six (6) children with my sister Zenaida Carungcong Sato. x x x3 Wendy Mitsuko Satos supporting affidavit and the special power of attorney allegedly issued by the deceased Manolita Gonzales vda. de Carungcong in favor of Wendy were attached to the complaint-affidavit of Mediatrix. In a resolution dated March 25, 1997, the City Prosecutor of Quezon City dismissed the complaint.4 On appeal, however, the Secretary of Justice reversed and set aside the resolution dated March 25, 1997 and directed the City Prosecutor of Quezon City to file an Information against Sato for violation of Article 315, paragraph 3(a) of the Revised Penal Code.5 Thus, the following Information was filed against Sato in the Regional Trial Court of Quezon City, Branch 87:6 INFORMATION

The undersigned accuses WILLIAM SATO of the crime of ESTAFA under Article 315[,] par. 3(a) of the Revised Penal Code, committed as follows: That on or about the 24th day of November, 1992, in Quezon City, Philippines, the above-named accused, by means of deceit, did, then and there, wil[l]fully, unlawfully and feloniously defraud MANOLITA GONZALES VDA. DE CARUNGCONG in the following manner, to wit: the said accused induced said Manolita Gonzales Vda. De Carungcong[,] who was already then blind and 79 years old[,] to sign and thumbmark a special power of attorney dated November 24, 1992 in favor of Wendy Mitsuko C. Sato, daughter of said accused, making her believe that said document involved only her taxes, accused knowing fully well that said document authorizes Wendy Mitsuko C. Sato, then a minor, to sell, assign, transfer or otherwise dispose of to any person or entity of her properties all located at Tagaytay City, as follows: 1. One Thousand Eight Hundred Seven(ty) One (1,871) square meters more or less and covered by T.C.T. No. 3147; 2. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3148 with Tax Declaration No. GR016-0722, Cadastral Lot No. 7106; 3. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3149 with Tax Declaration No. GR016-0721, Cadastral Lot No. 7104;

4. Eight Hundred Eighty Eight (888) square meters more or less with Tax Declaration No. GR-016-1735, Cadastral Lot No. 7062; registered in the name of Manolita Gonzales Vda. De Carungcong, and once in the possession of the said special power of attorney and other pertinent documents, said accused made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute Sale covering Transfer Certificate of Title [TCT] No. 3148 for P250,000.00, [TCT] No. 3149 for P250,000.00 and [Tax Declaration] GR-016-0735 for P650,000.00 and once in possession of the proceeds of the sale of the above properties, said accused, misapplied, misappropriated and converted the same to his own personal use and benefit, to the damage and prejudice of the heirs of Manolita Gonzales Vda. De Carungcong who died in 1994. Contrary to law.7 Subsequently, the prosecution moved for the amendment of the Information so as to increase the amount of damages from P1,150,000, the total amount stated in the deeds of sale, to P22,034,000, the actual amount received by Sato. Sato moved for the quashal of the Information, claiming that under Article 332 of the Revised Penal Code, his relationship to the person allegedly defrauded, the deceased Manolita who was his mother-in-law, was an exempting circumstance.

The prosecution disputed Satos motion in an opposition dated March 29, 2006. In an order dated April 17, 2006,8 the trial court granted Satos motion and ordered the dismissal of the criminal case: The Trial Prosecutors contention is that the death of the wife of the accused severed the relationship of affinity between accused and his mother-in-law. Therefore, the mantle of protection provided to the accused by the relationship is no longer obtaining. A judicious and thorough examination of Article 332 of the Revised Penal Code convinces this Court of the correctness of the contention of the [d]efense. While it is true that the death of Zenaida Carungcong-Sato has extinguished the marriage of accused with her, it does not erase the fact that accused and Zenaidas mother, herein complainant, are still son[-in-law] and mother-in-law and they remained son[-in-law] and mother-in-law even beyond the death of Zenaida. Article 332(1) of the Revised Penal Code, is very explicit and states no proviso. "No criminal, but only civil liability[,] shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by xxx 1) spouses, ascendants and descendants, or relatives by affinity in the same line."

Article 332, according to Aquino, in his Commentaries [to] Revised Penal Code, preserves family harmony and obviates scandal, hence even in cases of theft and malicious mischief, where the crime is committed by a stepfather against his stepson, by a grandson against his grandfather, by a son against his mother, no criminal liability is incurred by the accused only civil (Vicente Alavare, 52 Phil. 65; Adame, CA 40 OG 12th Supp. 63; Cristobal, 84 Phil. 473). Such exempting circumstance is applicable herein. WHEREFORE, finding the Motion to Quash Original Information meritorious, the same is GRANTED and, as prayed for, case is hereby DISMISSED. SO ORDERED.9 (underlining supplied in the original) The prosecutions motion for reconsideration10 was denied in an order dated June 2, 2006.11 Dissatisfied with the trial courts rulings, the intestate estate of Manolita, represented by Mediatrix, filed a petition for certiorari in the Court of Appeals12 which, however, in a decision13 dated August 9, 2007, dismissed it. It ruled: [W]e sustain the finding of [the trial court] that the death of Zenaida did not extinguish the relationship by affinity between her husband, private respondent Sato, and her mother Manolita, and

does not bar the application of the exempting circumstance under Article 332(1) of the Revised Penal Code in favor of private respondent Sato. We further agree with the submission of the [Office of the Solicitor General (OSG)] that nothing in the law and/or existing jurisprudence supports the argument of petitioner that the fact of death of Zenaida dissolved the relationship by affinity between Manolita and private respondent Sato, and thus removed the protective mantle of Article 332 of the Revised Penal Code from said private respondent; and that notwithstanding the death of Zenaida, private respondent Sato remains to be the son-in-law of Manolita, and a brother-in-law of petitioner administratrix. As further pointed out by the OSG, the filing of the criminal case for estafa against private respondent Sato already created havoc among members of the Carungcong and Sato families as private respondents daughter Wendy Mitsuko Sato joined cause with her aunt [Mediatrix] Carungcong y Gonzales, while two (2) other children of private respondent, William Francis and Belinda Sato, took the side of their father. There is a dearth of jurisprudence and/or commentaries elaborating on the provision of Article 332 of the Revised Penal Code. However, from the plain language of the law, it is clear that the exemption from criminal liability for the crime of swindling (estafa) under Article 315 of the Revised Penal Code applies to private respondent Sato, as son-in-law of Manolita, they being "relatives by affinity in the same line" under Article 332(1) of the

same Code. We cannot draw the distinction that following the death of Zenaida in 1991, private respondent Sato is no longer the son-in-law of Manolita, so as to exclude the former from the exempting circumstance provided for in Article 332 (1) of the Revised Penal Code.

Ubi lex non distinguit nec nos distinguere debemos. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not distinguish. There should be no distinction in the application of law where none is indicated. The courts could only distinguish where there are facts or circumstances showing that the lawgiver intended a distinction or qualification. In such a case, the courts would merely give effect to the lawgivers intent. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein.
Further, it is an established principle of statutory construction that penal laws are strictly construed against the State and liberally in favor of the accused. Any reasonable doubt must be resolved in favor of the accused. In this case, the plain meaning of Article 332 (1) of the Revised Penal Codes simple language is most favorable to Sato.14 The appellate court denied reconsideration.15 Hence, this petition. Petitioner contends that the Court of Appeals erred in not reversing the orders of the trial court. It cites the commentary of

Justice Luis B. Reyes in his book on criminal law that the rationale of Article 332 of the Revised Penal Code exempting the persons mentioned therein from criminal liability is that the law recognizes the presumed co-ownership of the property between the offender and the offended party. Here, the properties subject of the estafa case were owned by Manolita whose daughter, Zenaida Carungcong-Sato (Satos wife), died on January 28, 1991. Hence, Zenaida never became a co-owner because, under the law, her right to the three parcels of land could have arisen only after her mothers death. Since Zenaida predeceased her mother, Manolita, no such right came about and the mantle of protection provided to Sato by the relationship no longer existed. Sato counters that Article 332 makes no distinction that the relationship may not be invoked in case of death of the spouse at the time the crime was allegedly committed. Thus, while the death of Zenaida extinguished her marriage with Sato, it did not dissolve the son-in-law and mother-in-law relationship between Sato and Zenaidas mother, Manolita. For his part, the Solicitor General maintains that Sato is covered by the exemption from criminal liability provided under Article 332. Nothing in the law and jurisprudence supports petitioners claim that Zenaidas death dissolved the relationship by affinity between Sato and Manolita. As it is, the criminal case against Sato created havoc among the members of the Carungcong and Sato families, a situation sought to be particularly avoided by Article 332s

provision exempting a family member committing theft, estafa or malicious mischief from criminal liability and reducing his/her liability to the civil aspect only. The petition has merit. The resolution of this case rests on the interpretation of Article 332 of the Revised Penal Code. In particular, it calls for the determination of the following: (1) the effect of death on the relationship by affinity created between a surviving spouse and the blood relatives of the deceased spouse and (2) the extent of the coverage of Article 332. Effect of Death on Relationship By Affinity as Absolutory Cause Article 332 provides for an absolutory cause16in the crimes of theft, estafa (or swindling) and malicious mischief. It limits the responsibility of the offender to civil liability and frees him from criminal liability by virtue of his relationship to the offended party. In connection with the relatives mentioned in the first paragraph, it has been held that included in the exemptions are parents-inlaw, stepparents and adopted children.17 By virtue thereof, no criminal liability is incurred by the stepfather who commits malicious mischief against his stepson;18 by the stepmother who commits theft against her stepson;19 by the stepfather who steals something from his stepson;20 by the grandson who steals from

his grandfather;21 by the accused who swindles his sister-in-law living with him;22 and by the son who steals a ring from his mother.23 Affinity is the relation that one spouse has to the blood relatives of the other spouse. It is a relationship by marriage or a familial relation resulting from marriage.24 It is a fictive kinship, a fiction created by law in connection with the institution of marriage and family relations. If marriage gives rise to ones relationship by affinity to the blood relatives of ones spouse, does the extinguishment of marriage by the death of the spouse dissolve the relationship by affinity? Philippine jurisprudence has no previous encounter with the issue that confronts us in this case. That is why the trial and appellate courts acknowledged the "dearth of jurisprudence and/or commentaries" on the matter. In contrast, in the American legal system, there are two views on the subject. As one Filipino author observed: In case a marriage is terminated by the death of one of the spouses, there are conflicting views. There are some who believe that relationship by affinity is not terminated whether there are children or not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26). However, the better view supported by most judicial authorities in other jurisdictions is that, if the spouses have no

living issues or children and one of the spouses dies, the relationship by affinity is dissolved. It follows the rule that relationship by affinity ceases with the dissolution of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56 Am Dec. 288). On the other hand, the relationship by affinity is continued despite the death of one of the spouses where there are living issues or children of the marriage "in whose veins the blood of the parties are commingled, since the relationship of affinity was continued through the medium of the issue of the marriage" (Paddock vs. Wells, 2 Barb. Ch. 331, 333).25 The first view (the terminated affinity view) holds that relationship by affinity terminates with the dissolution of the marriage either by death or divorce which gave rise to the relationship of affinity between the parties.26 Under this view, the relationship by affinity is simply coextensive and coexistent with the marriage that produced it. Its duration is indispensably and necessarily determined by the marriage that created it. Thus, it exists only for so long as the marriage subsists, such that the death of a spouse ipso facto ends the relationship by affinity of the surviving spouse to the deceased spouses blood relatives. The first view admits of an exception. The relationship by affinity continues even after the death of one spouse when there is a surviving issue.27 The rationale is that the relationship is preserved because of the living issue of the marriage in whose veins the blood of both parties is commingled.28

The second view (the continuing affinity view) maintains that relationship by affinity between the surviving spouse and the kindred of the deceased spouse continues even after the death of the deceased spouse, regardless of whether the marriage produced children or not.29 Under this view, the relationship by affinity endures even after the dissolution of the marriage that produced it as a result of the death of one of the parties to the said marriage. This view considers that, where statutes have indicated an intent to benefit step-relatives or in-laws, the "tie of affinity" between these people and their relatives-by-marriage is not to be regarded as terminated upon the death of one of the married parties.30 After due consideration and evaluation of the relative merits of the two views, we hold that the second view is more consistent with the language and spirit of Article 332(1) of the Revised Penal Code. First, the terminated affinity view is generally applied in cases of jury disqualification and incest.31 On the other hand, the continuing affinity view has been applied in the interpretation of laws that intend to benefit step-relatives or in-laws. Since the purpose of the absolutory cause in Article 332(1) is meant to be beneficial to relatives by affinity within the degree covered under the said provision, the continuing affinity view is more appropriate.

Second, the language of Article 332(1) which speaks of "relatives by affinity in the same line" is couched in general language. The legislative intent to make no distinction between the spouse of ones living child and the surviving spouse of ones deceased child (in case of a son-in-law or daughter-in-law with respect to his or her parents-in-law)32 can be drawn from Article 332(1) of the Revised Penal Code without doing violence to its language. Third, the Constitution declares that the protection and strengthening of the family as a basic autonomous social institution are policies of the State and that it is the duty of the State to strengthen the solidarity of the family.33 Congress has also affirmed as a State and national policy that courts shall preserve the solidarity of the family.34 In this connection, the spirit of Article 332 is to preserve family harmony and obviate scandal.35 The view that relationship by affinity is not affected by the death of one of the parties to the marriage that created it is more in accord with family solidarity and harmony. Fourth, the fundamental principle in applying and in interpreting criminal laws is to resolve all doubts in favor of the accused. In dubio pro reo. When in doubt, rule for the accused.36 This is in consonance with the constitutional guarantee that the accused shall be presumed innocent unless and until his guilt is established beyond reasonable doubt.37

Intimately related to the in dubio pro reo principle is the rule of lenity.38 The rule applies when the court is faced with two possible interpretations of a penal statute, one that is prejudicial to the accused and another that is favorable to him. The rule calls for the adoption of an interpretation which is more lenient to the accused. Lenity becomes all the more appropriate when this case is viewed through the lens of the basic purpose of Article 332 of the Revised Penal Code to preserve family harmony by providing an absolutory cause. Since the goal of Article 332(1) is to benefit the accused, the Court should adopt an application or interpretation that is more favorable to the accused. In this case, that interpretation is the continuing affinity view. Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that the relationship by affinity created between the surviving spouse and the blood relatives of the deceased spouse survives the death of either party to the marriage which created the affinity. (The same principle applies to the justifying circumstance of defense of ones relatives under Article 11[2] of the Revised Penal Code, the mitigating circumstance of immediate vindication of grave offense committed against ones relatives under Article 13[5] of the same Code and the absolutory cause of relationship in favor of accessories under Article 20 also of the same Code.) Scope of Article 332 of The Revised Penal Code

The absolutory cause under Article 332 of the Revised Penal Code only applies to the felonies of theft, swindling and malicious mischief. Under the said provision, the State condones the criminal responsibility of the offender in cases of theft, swindling and malicious mischief. As an act of grace, the State waives its right to prosecute the offender for the said crimes but leaves the private offended party with the option to hold the offender civilly liable. However, the coverage of Article 332 is strictly limited to the felonies mentioned therein. The plain, categorical and unmistakable language of the provision shows that it applies exclusively to the simple crimes of theft, swindling and malicious mischief. It does not apply where any of the crimes mentioned under Article 332 is complexed with another crime, such as theft through falsification or estafa through falsification.39 The Information against Sato charges him with estafa. However, the real nature of the offense is determined by the facts alleged in the Information, not by the designation of the offense.40 What controls is not the title of the Information or the designation of the offense but the actual facts recited in the Information.41 In other words, it is the recital of facts of the commission of the offense, not the nomenclature of the offense, that determines the crime being charged in the Information.42 It is the exclusive province of the court to say what the crime is or what it is named.43 The determination by the prosecutor who signs the Information of the crime committed is merely an opinion which is not binding on the court.44

A reading of the facts alleged in the Information reveals that Sato is being charged not with simple estafa but with the complex crime of estafa through falsification of public documents. In particular, the Information states that Sato, by means of deceit, intentionally defrauded Manolita committed as follows: (a) Sato presented a document to Manolita (who was already blind at that time) and induced her to sign and thumbmark the same; (b) he made Manolita believe that the said document was in connection with her taxes when it was in fact a special power of attorney (SPA) authorizing his minor daughter Wendy to sell, assign, transfer or otherwise dispose of Manolitas properties in Tagaytay City; (c) relying on Satos inducement and representation, Manolita signed and thumbmarked the SPA in favor of Wendy Mitsuko Sato, daughter of Sato; (d) using the document, he sold the properties to third parties but he neither delivered the proceeds to Manolita nor accounted for the same and (d) despite repeated demands, he failed and refused to deliver the proceeds, to the damage and prejudice of the estate of Manolita.

The above averments in the Information show that the estafa was committed by attributing to Manolita (who participated in the execution of the document) statements other than those in fact made by her. Manolitas acts of signing the SPA and affixing her thumbmark to that document were the very expression of her specific intention that something be done about her taxes. Her signature and thumbmark were the affirmation of her statement on such intention as she only signed and thumbmarked the SPA (a document which she could not have read) because of Satos representation that the document pertained to her taxes. In signing and thumbmarking the document, Manolita showed that she believed and adopted the representations of Sato as to what the document was all about, i.e., that it involved her taxes. Her signature and thumbmark, therefore, served as her conformity to Satos proposal that she execute a document to settle her taxes. Thus, by inducing Manolita to sign the SPA, Sato made it appear that Manolita granted his daughter Wendy a special power of attorney for the purpose of selling, assigning, transferring or otherwise disposing of Manolitas Tagaytay properties when the fact was that Manolita signed and thumbmarked the document presented by Sato in the belief that it pertained to her taxes. Indeed, the document itself, the SPA, and everything that it contained were falsely attributed to Manolita when she was made to sign the SPA. Moreover, the allegations in the Information that

(1) "once in the possession of the said special power of attorney and other pertinent documents, [Sato] made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute Sale" and (2) "once in possession of the proceeds of the sale of the above properties, said accused, misapplied, misappropriated and converted the same to his own personal use and benefit" raise the presumption that Sato, as the possessor of the falsified document and the one who benefited therefrom, was the author thereof. Furthermore, it should be noted that the prosecution moved for the amendment of the Information so as to increase the amount of damages from P1,150,000 to P22,034,000. This was granted by the trial court and was affirmed by the Court of Appeals on certiorari. This meant that the amended Information would now state that, while the total amount of consideration stated in the deeds of absolute sale was only P1,150,000, Sato actually received the total amount of P22,034,000 as proceeds of the sale of Manolitas properties.45 This also meant that the deeds of sale (which were public documents) were also falsified by making untruthful statements as to the amounts of consideration stated in the deeds. Therefore, the allegations in the Information essentially charged a crime that was not simple estafa. Sato resorted to falsification of

public documents (particularly, the special power of attorney and the deeds of sale) as a necessary means to commit the estafa. Since the crime with which respondent was charged was not simple estafa but the complex crime of estafa through falsification of public documents, Sato cannot avail himself of the absolutory cause provided under Article 332 of the Revised Penal Code in his favor. Effect of Absolutory Cause Under Article 332 on Criminal Liability For The Complex Crime of Estafa Through Falsification of Public Documents The question may be asked: if the accused may not be held criminally liable for simple estafa by virtue of the absolutory cause under Article 332 of the Revised Penal Code, should he not be absolved also from criminal liability for the complex crime of estafa through falsification of public documents? No. True, the concurrence of all the elements of the two crimes of estafa and falsification of public document is required for a proper conviction for the complex crime of estafa through falsification of public document. That is the ruling in Gonzaludo v. People.46 It means that the prosecution must establish that the accused resorted to the falsification of a public document as a necessary means to commit the crime of estafa.

However, a proper appreciation of the scope and application of Article 332 of the Revised Penal Code and of the nature of a complex crime would negate exemption from criminal liability for the complex crime of estafa through falsification of public documents, simply because the accused may not be held criminally liable for simple estafa by virtue of the absolutory cause under Article 332. The absolutory cause under Article 332 is meant to address specific crimes against property, namely, the simple crimes of theft, swindling and malicious mischief. Thus, all other crimes, whether simple or complex, are not affected by the absolutory cause provided by the said provision. To apply the absolutory cause under Article 332 of the Revised Penal Code to one of the component crimes of a complex crime for the purpose of negating the existence of that complex crime is to unduly expand the scope of Article 332. In other words, to apply Article 332 to the complex crime of estafa through falsification of public document would be to mistakenly treat the crime of estafa as a separate simple crime, not as the component crime that it is in that situation. It would wrongly consider the indictment as separate charges of estafa and falsification of public document, not as a single charge for the single (complex) crime of estafa through falsification of public document. Under Article 332 of the Revised Penal Code, the State waives its right to hold the offender criminally liable for the simple crimes of theft, swindling and malicious mischief and considers the violation

of the juridical right to property committed by the offender against certain family members as a private matter and therefore subject only to civil liability. The waiver does not apply when the violation of the right to property is achieved through (and therefore inseparably intertwined with) a breach of the public interest in the integrity and presumed authenticity of public documents. For, in the latter instance, what is involved is no longer simply the property right of a family relation but a paramount public interest. The purpose of Article 332 is to preserve family harmony and obviate scandal.47 Thus, the action provided under the said provision simply concerns the private relations of the parties as family members and is limited to the civil aspect between the offender and the offended party. When estafa is committed through falsification of a public document, however, the matter acquires a very serious public dimension and goes beyond the respective rights and liabilities of family members among themselves. Effectively, when the offender resorts to an act that breaches public interest in the integrity of public documents as a means to violate the property rights of a family member, he is removed from the protective mantle of the absolutory cause under Article 332. In considering whether the accused is liable for the complex crime of estafa through falsification of public documents, it would be wrong to consider the component crimes separately from each other. While there may be two component crimes (estafa and

falsification of documents), both felonies are animated by and result from one and the same criminal intent for which there is only one criminal liability.48 That is the concept of a complex crime. In other words, while there are two crimes, they are treated only as one, subject to a single criminal liability. As opposed to a simple crime where only one juridical right or interest is violated (e.g., homicide which violates the right to life, theft which violates the right to property),49 a complex crime constitutes a violation of diverse juridical rights or interests by means of diverse acts, each of which is a simple crime in itself.50 Since only a single criminal intent underlies the diverse acts, however, the component crimes are considered as elements of a single crime, the complex crime. This is the correct interpretation of a complex crime as treated under Article 48 of the Revised Penal Code. In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes where the same criminal intent results in two or more component crimes constituting a complex crime for which there is only one criminal liability.51 (The complex crime of estafa through falsification of public document falls under this category.) This is different from a material (or real) plurality of crimes where different criminal intents result in two or more crimes, for each of which the accused incurs criminal liability.52 The latter category is covered neither by the concept of complex crimes nor by Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of crimes (concursus delictuorum or concurso de delitos) gives rise to a single criminal liability and requires the imposition of a single penalty: Although [a] complex crime quantitatively consists of two or more crimes, it is only one crime in law on which a single penalty is imposed and the two or more crimes constituting the same are more conveniently termed as component crimes.53 (emphasis supplied) In [a] complex crime, although two or more crimes are actually committed, they constitute only one crime in the eyes of the law as well as in the conscience of the offender. The offender has only one criminal intent. Even in the case where an offense is a necessary means for committing the other, the evil intent of the offender is only one.54 For this reason, while a conviction for estafa through falsification of public document requires that the elements of both estafa and falsification exist, it does not mean that the criminal liability for estafa may be determined and considered independently of that for falsification. The two crimes of estafa and falsification of public documents are not separate crimes but component crimes of the single complex crime of estafa and falsification of public documents.

Therefore, it would be incorrect to claim that, to be criminally liable for the complex crime of estafa through falsification of public document, the liability for estafa should be considered separately from the liability for falsification of public document. Such approach would disregard the nature of a complex crime and contradict the letter and spirit of Article 48 of the Revised Penal Code. It would wrongly disregard the distinction between formal plurality and material plurality, as it improperly treats the plurality of crimes in the complex crime of estafa through falsification of public document as a mere material plurality where the felonies are considered as separate crimes to be punished individually. Falsification of Public Documents May Be a Necessary Means for Committing Estafa Even Under Article 315 (3[a]) The elements of the offense of estafa punished under Article 315 (3[a]) of the Revised Penal Code are as follows: (1) the offender induced the offended party to sign a document; (2) deceit was employed to make the offended party sign the document; (3) the offended party personally signed the document and (4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law does not require that the document be falsified for the consummation thereof, it does not mean that the falsification of the document cannot be considered as a necessary means to commit the estafa under that provision. The phrase "necessary means" does not connote indispensable means for if it did, then the offense as a "necessary means" to commit another would be an indispensable element of the latter and would be an ingredient thereof.55 In People v. Salvilla,56 the phrase "necessary means" merely signifies that one crime is committed to facilitate and insure the commission of the other.57 In this case, the crime of falsification of public document, the SPA, was such a "necessary means" as it was resorted to by Sato to facilitate and carry out more effectively his evil design to swindle his mother-in-law. In particular, he used the SPA to sell the Tagaytay properties of Manolita to unsuspecting third persons. When the offender commits in a public document any of the acts of falsification enumerated in Article 171 of the Revised Penal Code as a necessary means to commit another crime, like estafa, theft or malversation, the two crimes form a complex crime under Article 48 of the same Code.58 The falsification of a public, official or commercial document may be a means of committing estafa because, before the falsified document is actually utilized to defraud another, the crime of falsification has already been consummated, damage or intent to cause damage not being an element of the crime of falsification of a public, official or

commercial document.59 In other words, the crime of falsification was committed prior to the consummation of the crime of estafa.60 Actually utilizing the falsified public, official or commercial document to defraud another is estafa.61 The damage to another is caused by the commission of estafa, not by the falsification of the document.621avvphi1 Applying the above principles to this case, the allegations in the Information show that the falsification of public document was consummated when Sato presented a ready-made SPA to Manolita who signed the same as a statement of her intention in connection with her taxes. While the falsification was consummated upon the execution of the SPA, the consummation of the estafa occurred only when Sato later utilized the SPA. He did so particularly when he had the properties sold and thereafter pocketed the proceeds of the sale. Damage or prejudice to Manolita was caused not by the falsification of the SPA (as no damage was yet caused to the property rights of Manolita at the time she was made to sign the document) but by the subsequent use of the said document. That is why the falsification of the public document was used to facilitate and ensure (that is, as a necessary means for) the commission of the estafa. The situation would have been different if Sato, using the same inducement, had made Manolita sign a deed of sale of the properties either in his favor or in favor of third parties. In that case, the damage would have been caused by, and at exactly the same time as, the execution of the document, not prior thereto.

Therefore, the crime committed would only have been the simple crime of estafa.63 On the other hand, absent any inducement (such as if Manolita herself had been the one who asked that a document pertaining to her taxes be prepared for her signature, but what was presented to her for her signature was an SPA), the crime would have only been the simple crime of falsification.64 WHEREFORE, the petition is hereby GRANTED. The decision dated August 9, 2007 and the resolution dated January 23, 2008 of the Court of Appeals in CA-G.R. S.P. No. 95260 are REVERSED and SET ASIDE. The case is remanded to the trial court which is directed to try the accused with dispatch for the complex crime of estafa through falsification of public documents.

G.R. No. 171328. February 16, 2011.* LYZAH SY FRANCO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. G.R. No. 171335. February 16, 2011.* STEVE BESARIO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Criminal Law; Conspiracy; Quantum of Proof; Conspiracy must be proven on the same quantum of evidence as the felony subject of

the agreement of the parties.There is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy must be proven on the same quantum of evidence as the felony subject of the agreement of the parties. [It] may be proved by direct or circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators [prior to], during and after the commission of the felony to achieve a common design or purpose. Same; Estafa; Elements of Art. 315, par. 2(a), Revised Penal Code.Article 315, par. 2(a) of the Revised Penal Code penalizes fraud or deceit when committed as follows: x x x x 2. by means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of fraud: (a) by using fictitious name, or actions, falsely pretending to possess power, influence, qualification, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. The elements of the crime of estafa under the foregoing provision are: (1) there must be a false pretense, fraudulent acts or fraudulent means; (2) such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud; (3) the offended party must have relied on the false pretense, fraudulent act or fraudulent means and was thus induced to part with his money or

property; and (4) as a result thereof, the offended party suffered damage. Same; Same; An employees act of soliciting a client despite previous knowledge of several complaints against his or her employer for failure to deliver the motor vehicle that was the subject of the agreement, is tantamount to misrepresentation. Petitioners presented themselves to Lourdes as persons possessing the authority and capacity to engage in the financing of used vehicles in behalf of Final Access Marketing. This was a clear misrepresentation considering their previous knowledge not only of Erlindas complaint but also of several others as regards the failure of Final Access Marketing to deliver the motor vehicles bought. Lourdes relied on their misrepresentations and parted with her money. Almost a week passed by, but petitioners and Rule did not deliver the said motor vehicle. They also did not fulfill their subsequent promise to provide a replacement or to refund her payment. When Lourdes visited the office of Final Access Marketing to demand the return of her money, it was already closed. She could not locate any of them except for Franco who denied any wrongdoing. Consequently, she suffered damage. If indeed they were innocent as they claimed to be, Erlindas complaint to petitioners and the 12 other similar complaints with Hoy Gising regarding undelivered vehicles should have

dissuaded petitioners from further soliciting customers. The fact that they continued to offer for sale a second-hand car to Lourdes is indicative of deceit and their complicity in the conspiracy to commit estafa. The manner in which petitioners transacted business with Erlinda and Lourdes as well as their awareness of 12 other similar complaints with Hoy Gising were sufficient to establish the existence of a modus operandi. Same; Same; Conspiracy; The shifting of blame is common among conspirators in their attempt to escape liabilityit is a desperate strategy to compensate for their weak defense.In denying any criminal wrongdoing, petitioners blame their co-accused, Torres, whom they claim to be the owner of Final Access Marketing. The shifting of blame is common among conspirators in their attempt to escape liability. It is a desperate strategy to compensate for their weak defense. We are not readily influenced by such a proposition since its obvious motive is to distort the truth and frustrate the ends of justice. PETITIONS for review on certiorari of a decision of the Court of Appeals. The facts are stated in the opinion of the Court. Egmedio J. Castillon, Jr. for petitioner L. Franco.

Puno & Associates Law Office for petitioner S. Besario.

DECISION DEL CASTILLO, J.: In the prosecution for the crime of estafa committed under Article 315, paragraph 2(a) of the Revised Penal Code, there must be evidence of false representation or false pretense on the part of the accused to prove reasonable doubt. In this case, the employees act of soliciting a client despite previous knowledge of several complaints against his or her employer for failure to deliver the motor vehicle that was the subject of the agreement, is tantamount to misrepresentation. Factual Antecedents These petitions for review on certiorari impugn the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 27414 which affirmed with modifications the Decision2 of the Regional Trial Court of Manila, Branch 52, in Criminal Case No. 99-173688, convicting petitioners Lyzah Sy Franco (Franco) and Steve Besario (Besario) of the crime of Estafa. The Information filed against petitioners and their co-accused, Antonio Rule, Jr. (Rule) and George Torres (Torres), contained the following accusatory allegations:

That on or about the first week of June 1998, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously defraud MA. LOURDES G. ANTONIO, in the following manner, to wit: the said accused by means of false manifestations and fraudulent representations which they made to said Ma. Lourdes G. Antonio, to the effect that they are employees of FINAL ACCESS MARKETING, a business entity engaged in the sale and financing of used or repossessed cars, and as such could process and facilitate the sale of a Mazda car 323 bearing plate number PVB-999 worth P130,000.00 provided they be given the amount of P80,000.00 as down payment and by means of other deceits of similar import, induced and succeeded in inducing the said Ma. Lourdes G. Antonio to give and deliver as in fact she gave and delivered to herein accused the said amount of P80,000.00, and accused knowing fully well that their manifestations and representations were false and untrue and were made only to obtain the said amount of P80,000.00 which amount once in their possession, did then and there willfully, unlawfully and feloniously misapply, misappropriate and convert the said amount of P80,000.00 to their own personal use and benefit, to the damage and prejudice of said MA. LOURDES G. ANTONIO in the aforesaid amount of P80,000.00 in its equivalent amount to the Philippine Currency. Contrary to law.3

During arraignment, petitioners entered separate pleas of "not guilty." Rule and Torres failed to appear and, to date, remain at large. After the termination of the pre-trial conference, trial ensued. The Version of the Prosecution Ma. Lourdes G. Antonio (Lourdes) testified that petitioners swindled her. She claimed that Franco was a friend of her niece and that she has known her for almost a year. In the first week of June 1998, Franco came to her house and offered to assist her in purchasing a used car. Franco introduced herself as Assistant Administrative Coordinator of Final Access Marketing which was engaged in the sale and financing of second-hand and repossessed vehicles. Franco gave her calling card after their conversation. Lourdes was interested in the offer of Franco since she and her husband were actually looking for a used car for their taxicab operation. She therefore contacted Franco to take up her offer. On June 26, 1998, Franco and Lourdes went to a showroom on Houston Street, San Juan, Metro Manila, where Lourdes immediately chose a blue Mazda 323 car with Plate No. PVB No. 999 from those that were on display. At around 7 oclock in the evening of July 2, 1998, Franco went to the house of Lourdes and presented a sales proposal. She was

with Besario and Rule, whom she introduced as her superiors. Rule then made a presentation on the Mazda 323 car informing Lourdes that she can buy it for P130,000.00 with a downpayment of P80,000.00 and the balance to be paid in 12 equal monthly installments. Rule also told Lourdes that the car would be delivered within three days from receipt of her money. Lourdes agreed to pay the downpayment the following day. Before the petitioners departed, Rule ordered Franco to sign the sales proposal as sales executive. Lourdes also signed the document. Rule then issued a receipt dated July 3, 1998 and instructed Franco and Besario to give it to Lourdes after receiving her downpayment upon their return on the next day. The following day, July 3, 1998, Franco and Besario returned to the house of Lourdes to collect the downpayment of P80,000.00. Besario received and counted the money and handed it to Franco. After counting the money, Franco returned the same to Besario, who put it inside the bag he was carrying. They gave to Lourdes the receipt dated July 3, 1998 that was signed by Rule. At the same time, they assured her that the car would be delivered in three days. The car, however, was not delivered as promised. Lourdes called up Final Access Marketings office and was able to talk to the owner/manager, Torres, who assured her that her downpayment would be refunded or that they would look for a replacement.

Meanwhile, Lourdes and her husband returned to the showroom on Houston Street, San Juan, where they saw the Mazda car already clean. The security guard told them it was ready for release in the afternoon. When the car was still undelivered, Lourdes sought the aid of "Hoy Gising," a television show that broadcasts grievances of people against fraudulent schemes. During a visit to the shows office, Lourdes learned that 12 other persons were victimized by the group of petitioners. Lourdes also met with Atty. Renz Jaime, legal counsel of Final Access Marketing, who assured her that Final Access Marketing would return her money by August. When he reneged on his promise, formal demand was made on him to settle the obligation of said business enterprise. Erlinda Acosta (Erlinda) was one of the alleged victims of petitioners whom Lourdes met while airing her complaint in the television program "Hoy Gising." Erlinda testified that she was referred to Besario when she was looking for a second-hand vehicle. She went to the office of Final Access Marketing in Timog Avenue, Quezon City, and was shown by Besario several pictures of vehicles from which she chose a Mitsubishi Pajero. On April 7, 1998, Erlinda and her son met Besario, Rule and their other companions in a restaurant. They brought the vehicle Erlinda wanted to purchase and her son drove it for a road test.

Thereafter, she agreed to buy the vehicle for P600,000.00. She signed a Vehicle Sales Proposal and handed to Rule a downpayment of US$3,000.00. On April 20, 1998, Erlinda delivered to Besario and Rule a managers check in the amount of P245,000.00 as payment for the entire balance. She was then assured that the vehicle will be delivered a week later. However, Besario and Rule reneged on their promise. Erlinda went to the office of Final Access Marketing and complained to Franco but to no avail. Her motor vehicle was never delivered. Thus, she went to "Hoy Gising." Juanito Antonio corroborated the testimony of his wife, Lourdes. He was present when petitioners Franco and Besario, together with Rule, went to their house in the evening of July 2, 1998 with a written proposal for the sale of a vehicle. After his wife signed the document, she gave a downpayment of P80,000.00. When the car was not delivered on the date agreed upon, he and his wife went to the office of Final Access Marketing. Upon their inquiries, the security guard on duty said that the car they purchased already had a gate pass and would be delivered in the afternoon. However, the said vehicle was never delivered to them. The Version of the Petitioners Franco denied involvement in the alleged conspiracy to commit estafa against Lourdes. She alleged that it was Torres, the owner

of Final Access Marketing, who was the swindler. And like Lourdes, she was a victim in this case. Franco claimed that petitioner Besario hired her as a clerk-typist. She was promoted to the position of Assistant Administrative Coordinator and was authorized to solicit clients for Final Access Marketing. Franco learned from her sister that Lourdes wanted to purchase a second-hand car. She went to see Lourdes and presented to the latter a list of repossessed vehicles. She gave her calling card to Lourdes before they parted. Later on, Lourdes called and visited the office of Final Access Marketing, where Franco introduced Lourdes to Besario and Rule. Franco accompanied Lourdes to showrooms where the latter chose a blue Mazda car with Plate No. PVB 999. Rule agreed to sell the car to Lourdes for P130,000.00. Thus, on the evening of July 2, 1998, she, Besario and Rule went to the house of Lourdes with a Vehicle Sales Proposal. Franco signed the document without reading and understanding the same upon the insistence of Rule. Rule then signed an official receipt and instructed Franco and Besario to return the next day to give the same to Lourdes after collecting her downpayment. Lourdes was also assured that the car would be delivered within three days from receipt of the downpayment.

On July 3, 1998, at around 10 a.m., Franco and Besario came back to collect the downpayment. Lourdes gave her cash payment to Besario, who counted it. He gave said cash to Franco, who counted it again. When the money was handed back to Besario, he put it inside a black bag. Thereafter, Franco and Besario went to a restaurant to pick-up Rule. They rode a taxi and proceeded to the house of Torres, but it was only Besario and Rule who went inside. Franco went home without receiving a single centavo for her transportation fare. When the car was not delivered, Lourdes called Franco who in turn reminded her boss to expedite its release. However, the continued failure to receive the vehicle compelled Lourdes to report the incident to "Hoy Gising." It was only during this period that Franco learned of similar complaints from other customers. Thereafter, Lourdes called her intermittently asking for a reimbursement. However, the latter could not do anything since her employers no longer reported to the office. Rule and Torres left Manila and went to Cebu. She was not aware of their whereabouts at the time of her testimony. On the other hand, Besario failed to attend several hearings. The notice to appear and to present evidence sent to him was returned unserved since he moved to another address without informing the trial court. Thus, upon motion of the prosecution, he was declared to have waived his right to present evidence. The case was consequently submitted for decision.

The Ruling of the Regional Trial Court On October 23, 2001, the trial court rendered its Decision finding petitioners guilty beyond reasonable doubt of the crime of estafa under Article 315, par. 1(b) of the Revised Penal Code. The dispositive portion reads as follows: ACCORDINGLY, above premises all considered, the Court finding accused Lyzah Sy Franco and Steve Besario GUILTY, beyond reasonable doubt, of the crime charged in the Information, the Court hereby sentences said two accused to each suffer the indeterminate penalty of imprisonment ranging from seventeen (17) years of reclusion temporal as MAXIMUM to eight (8) years and one (1) day of prison mayor as MINIMUM and to suffer all the accessory penalties as provided by law. Accused Franco and Besario, jointly and severally are likewise ordered to pay private complainant Ma. Lourdes Antonio the sum of P80,000.00 as actual damages. SO ORDERED.4 The Ruling of the Court of Appeals On July 26, 2005, the CA promulgated its Decision that affirmed with

modification the decision of the trial court. It convicted the petitioners for the crime of estafa under Article 315, par. 2(a) of the Revised Penal Code and modified the penalty. The dispositive portion of its Decision reads as follows: WHEREFORE, in view of the foregoing premises, the Decision dated October 23, 2001 rendered by the trial court is hereby AFFIRMED, with modification to the effect that the penalty imposed upon each of the appellants is hereby MODIFIED to an indeterminate sentence of Four (4) years, Two (2) months, and One (1) day of prision correccional as minimum to Thirteen (13) years of reclusion temporal as maximum. Accused Franco and Besario are likewise ordered to pay, jointly and severally, private complainant, Ma. Lourdes Antonio, the sum of P80,000.00 as actual damages. SO ORDERED.5 Hence, petitioners filed separate petitions for review on certiorari assailing the Decision of the CA. Franco contends that "the Court of Appeals decided the case on a mistaken inference and [misappreciation] of facts bordering on speculations, surmises or conjectures."6 On the other hand, Besario ascribes the following error to the CA:

PUBLIC RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR BY DISREGARDING THE LAW, JURISPRUDENCE AND EVIDENCE WHEN IT RULED THAT PETITIONER BESARIO IS GUILTY OF THE CRIME OF ESTAFA AS CHARGED IN THE INFORMATION.7 In its Consolidated Comment, the Solicitor General opposes the petitions by arguing that "petitioners raise[d] questions of fact which are inappropriate in a petition for review on certiorari. x x x."8 The Solicitor General also believes the prosecutions evidence was sufficient to convict petitioners of estafa under Article 315, par. 2(a) of the Revised Penal Code and that petitioners defenses failed to overturn the evidence showing their guilt beyond reasonable doubt. Our Ruling The petitions are not meritorious. Exception to the Finality and Conclusiveness of Factual Findings of the Court of Appeals "[A]s a rule, our jurisdiction in cases brought to us from the Court of Appeals is limited to the review and revision of errors of law allegedly committed by the appellate court, as findings of fact are deemed conclusive and we are not duty-bound to analyze and weigh all over again the evidence already considered in the proceedings below."9 While this rule is not without exception,

there are no exceptional circumstances in these cases that warrant a departure from the findings of facts of the trial court, as affirmed by the CA. Even after considering the merits, the petitions deserve outright denial. The conviction of Franco and Besario for conspiring to commit estafa against Lourdes must therefore stand. The prosecution satisfactorily established their participation in the scheme to defraud Lourdes, their acts were not isolated from but related to a plot to deceive her. The prosecution likewise proved beyond reasonable doubt that the well-planned swindling scheme of Franco and Besario resulted to estafa. Conspiracy must be Shown as Clearly as the Commission of the Offense10 There is conspiracy when two or more persons agree to commit a felony and decide to commit it.11 "Conspiracy must be proven on the same quantum of evidence as the felony subject of the agreement of the parties. [It] may be proved by direct or circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators [prior to], during and after the commission of the felony to achieve a common design or purpose."12 Several circumstances in this case conclusively show Francos role in defrauding Lourdes. She was the one who personally

approached Lourdes and actively made representations on behalf of Final Access Marketing despite previous knowledge of the companys failure to deliver the vehicle sold to Erlinda. She offered to help Lourdes purchase a second-hand car by presenting herself as an Assistant Administrative Coordinator of said company. She also assisted Lourdes in selecting a car she wanted to buy. Six days later, Franco arrived with Besario and Rule in the house of Lourdes after regular business hours. Franco made the necessary introductions and they commenced with a presentation that persuaded Lourdes to part with her money. They showed Lourdes a prepared Sales Proposal Agreement that Franco signed as a sales executive. Franco, together with Besario, returned the next day to collect the downpayment of Lourdes. After counting the money and putting it inside a bag, they assured Lourdes that the car would be delivered within three days. When they failed to fulfill their promise and their unlawful scheme was unraveled, she did not do anything to placate Lourdes. We cannot lend credence to Francos assertion that she only knew of her employers fraudulent scheme after Lourdes reported the same to "Hoy Gising." For sure, before their former clients reported their anomalous transactions to "Hoy Gising," they first lodged their complaints with the company itself. Hence, we are at a loss why Franco, as the companys Assistant Administrative Coordinator would feign ignorance of the same. We also could not understand why after "discovering" her employers fraudulent

transactions, and after said employers absconded, Franco continued to report to their office. She did not even bother to inform Lourdes that her employers had already absconded. Finally, since she made representations to Lourdes that the car would be delivered in three days time, the least that Franco could have done was to investigate the matter and explain to Lourdes the companys failure to deliver the car. After all, Franco was a friend of Lourdes niece. Besario, for his part, actively conspired with Franco by inducing Lourdes to part with her money. He also went to the house of Lourdes and induced the latter to make a downpayment on the car she wanted to purchase and sign the Sales Proposal Agreement. He and Franco collected the money from Lourdes and promised her that the car would be delivered three days later even if he had knowledge from the previous transaction with Erlinda that the delivery would never happen. Thereafter, he could not be reached or found when the car was still undelivered and their devious plot was exposed. Evidently, petitioners actions were in relation to the attainment of a common objective. They had vital roles in the nefarious scheme to sell a vehicle that they knew would never be delivered, but for which they obtained a substantial sum of money from Lourdes. Having established the existence of a conspiracy between Franco and Besario, the prosecution proceeded to present evidence to prove that the acts of the petitioners constituted estafa.

Estafa by Means of Deceit Article 315, par. 2(a) of the Revised Penal Code penalizes fraud or deceit when committed as follows: xxxx 2. by means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of fraud: (a) by using fictitious name, or actions, falsely pretending to possess power, influence, qualification, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. "The elements of the crime of estafa under the foregoing provision are: (1) there must be a false pretense, fraudulent acts or fraudulent means; (2) such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud; (3) the offended party must have relied on the false pretense, fraudulent act or fraudulent means and was thus induced to part with his money or property; and (4) as a result thereof, the offended party suffered damage."13 Petitioners presented themselves to Lourdes as persons possessing the authority and capacity to engage in the financing

of used vehicles in behalf of Final Access Marketing. This was a clear misrepresentation considering their previous knowledge not only of Erlindas complaint but also of several others as regards the failure of Final Access Marketing to deliver the motor vehicles bought. Lourdes relied on their misrepresentations and parted with her money. Almost a week passed by, but petitioners and Rule did not deliver the said motor vehicle. They also did not fulfill their subsequent promise to provide a replacement or to refund her payment. When Lourdes visited the office of Final Access Marketing to demand the return of her money, it was already closed. She could not locate any of them except for Franco who denied any wrongdoing. Consequently, she suffered damage. If indeed they were innocent as they claimed to be, Erlindas complaint to petitioners and the 12 other similar complaints with "Hoy Gising" regarding undelivered vehicles should have dissuaded petitioners from further soliciting customers. The fact that they continued to offer for sale a second-hand car to Lourdes is indicative of deceit and their complicity in the conspiracy to commit estafa. The manner in which petitioners transacted business with Erlinda and Lourdes as well as their awareness of 12 other similar complaints with "Hoy Gising" were sufficient to establish the existence of a modus operandi. Francos attempt to escape culpability by feigning ignorance of the previously failed transactions on the delivery of vehicles by Final Access Marketing cannot be countenanced. As gleaned from the testimony of Erlinda, Franco was already with Final Access

Marketing at the time these transactions occurred. She was therefore familiar with the companys procedure and policy on the sales of second-hand vehicles. She even accompanied Lourdes to showrooms and introduced her to Besario and Rule. As an employee of Final Access Marketing, Franco was expected to be familiar with its daily activities.lavvphi1 It would be unworthy of belief that she did not know of the complaints for the unexplained failure of Final Access Marketing to deliver vehicles to its customers. Human nature and experience would compel her to make queries on her own to discover the reasons for the nondelivery of the vehicles. Her continued insistence in soliciting Lourdes as a client by introducing herself as an Assistant Administrative Coordinator of Final Access Marketing with the ability to provide financing for a vehicle of her choice is therefore indicative of fraudulent misrepresentation. The petitioners also contend that they are not criminally liable since the transaction with Lourdes was a contract of sale. This contention does not deserve serious consideration. While the fact that they entered into a contract with Lourdes cannot be denied, the transaction transpired due to their deceit. It was their misrepresentation that induced Lourdes to sign the Sales Proposal agreement and part with her money. In denying any criminal wrongdoing, petitioners blame their coaccused, Torres, whom they claim to be the owner of Final Access Marketing. The shifting of blame is common among conspirators in

their attempt to escape liability. It is a desperate strategy to compensate for their weak defense. We are not readily influenced by such a proposition since its "obvious motive is to distort the truth and frustrate the ends of justice."14 The Penalty Having committed the crime of estafa, the petitioners must suffer the proper penalties provided by law. The law imposes the penalty of prision correccional in its maximum period to prision mayor in its minimum period if the amount is over P12,000.00 but does not exceed P22,000.00. If the amount swindled exceeds P22,000.00, the penalty shall be imposed in its maximum period, adding one year for each additional P10,000.00, but the total penalty which may be imposed shall not exceed 20 years.15 To determine the minimum of the indeterminate penalty, prision correccional in its maximum period to prision mayor in its minimum period shall be reduced by one degree, that is, to prision correccional in its minimum and medium periods. The minimum period of the indeterminate penalty shall be taken from the full range of the penalty of prision correccional in its minimum and medium periods, which is six (6) months and one (1) day to four (4) years and two (2) months. With the amount of the fraud at P80,000.00, there is P58,000.00 in excess of P22,000.00. Five years must therefore be added to the maximum period of the prescribed penalty ranging from six (6) years, eight (8) months and twentyone (21) days to eight (8) years. Thus, the maximum term of the penalty would range from eleven (11) years, eight (8) months and

twenty-one (21) days to thirteen (13) years. This is in accord with our ruling in People v. Temparada,16 viz: The prescribed penalty for estafa under Article 315, par. 2(d) of the RPC, when the amount defrauded exceeds P22,000.00, is prision correccional maximum to prision mayor minimum. The minimum term is taken from the penalty next lower or anywhere within prision correccional minimum and medium (i.e. from 6 months and 1 day to 4 years and 2 months). Consequently, the RTC correctly fixed the minimum term for the five estafa cases at 4 years and 2 months of prision correccional since this is within the range of prision correccional minimum and medium. On the other hand, the maximum term is taken from the prescribed penalty of prision correccional maximum to prision mayor minimum in its maximum period, adding 1 year of imprisonment for every P10,000.00 in excess of P22,000.00, provided that the total penalty shall not exceed 20 years. However, the maximum period of the prescribed penalty of prision correccional maximum to prision mayor minimum is not prision mayor minimum as apparently assumed by the RTC. To compute the maximum period of the prescribed penalty, prision correccional maximum to prision mayor minimum should be divided into three equal portions of time each of which portion shall be deemed to form one period in accordance with Article 65 of the RPC. Following this procedure, the maximum period of prision correccional maximum to prision mayor minimum is from 6 years, 8 months and 21 days to 8 years. The incremental penalty, when

proper, shall thus be added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court. In computing the incremental penalty, the amount defrauded shall be subtracted by P22,000.00, and the difference shall be divided by P10,000.00. Any fraction of a year shall be discarded as was done starting with the case of People v. Pabalan in consonance with the settled rule that penal laws shall be construed liberally in favor of the accused. x x x. WHEREFORE, the petitions for review on certiorari are DENIED. The Decision of the Court of Appeals in CA-G.R. CR No. 27414 which affirmed with modification the Decision of the Regional Trial Court, Branch 52, in Criminal Case No. 99-173688 convicting petitioners Lyzah Sy Franco and Steve Besario of the crime of estafa is AFFIRMED with further modification that the indeterminate prison term imposed on each of the petitioners is four (4) years and two (2) months of prision correccional as minimum to thirteen (13) years of reclusion temporal as maximum. SO ORDERED. G.R. No. 182301. January 31, 2011.* JAIME ALFEREZ, petitioner, vs. PEOPLE OF THE PHILIPPINES and PINGPING CO, respondents. Criminal Law; Bouncing Checks Law (B.P. Blg. 22); The elements of the crime are: (1) the making, drawing, and issuance of any check to apply on account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.Accordingly, this Court has held that the elements of the crime are, as follows: (1) the making, drawing, and issuance of any check to apply on account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for

the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. In this case, the first and third elements of the crime have been adequately established. The prosecution, however, failed to prove the second element. Same; Same; Receipts for registered letters and return receipts do not by themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letter, claimed to be a notice of dishonor.Receipts for registered letters and return receipts do not by themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letter, claimed to be a notice of dishonor. To be sure, the presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that petitioner received such notice. Same; Same; Penal statutes have to be construed strictly against the State and liberally in favor of the accused.The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused. The absence of a notice of dishonor necessarily deprives the accused an opportunity to preclude a criminal prosecution. As there is insufficient proof that petitioner received the notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot arise.

Same; Same; Civil Liability; In case of acquittal, the accused may still be adjudged civilly liable.Nonetheless, petitioners acquittal for failure of the prosecution to prove all elements of the offense beyond reasonable doubt does not include the extinguishment of his civil liability for the dishonored checks. In case of acquittal, the accused may still be adjudged civilly liable. The extinction of the penal action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted. PETITION for review on certiorari of the decision and resolution of the Court of Appeals. The facts are stated in the opinion of the Court. Oliver T. Booc for petitioner. Roberto Palmares for respondent. [Alferez vs. People, 641 SCRA 116(2011)] D ECISION NACHURA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Court of Appeals (CA) Decision dated December 13, 2007 and Resolution dated March 4, 2008 in CAG.R. CEB-CR No. 00300. The facts of the case, as culled from the records, are as follows: Petitioner Jaime Alferez purchased construction materials from Cebu ABC Sales Commercial. As payment for the goods, he issued three (3) checks for the total amount of P830,998.40. However, the checks were dishonored for having been drawn against a closed account. Petitioner was thus charged with three (3) counts of violation of Batas Pambansa Bilang (B.P. Blg.) 22 before the Municipal Trial Court in Cities (MTCC), Cebu City. The cases were raffled to Branch 3 and docketed as Criminal Case Nos. 40985-R to 40987-R. During the trial, the prosecution presented its lone witness, private complainant Pingping Co. Thereafter, the prosecution formally offered the following documentary evidence: 1. BPI Check No. 492089 dated 29 April 1994 in the sum of P78, 889.95; 2. BPI Check No. 492010 dated 22 June 1994 in the sum of P30,745.90;

3. BPI Check No. 492011 dated 22 June 1994 in the sum of P721,362.55; 4. The demand letter dated 7 July 1994 addressed to petitioner; 5. The registry receipt of the Post Office; 6. The face of the Registry Return Receipt; 7. The dorsal side of the Registry Return Receipt; 8. The Returned Check Ticket dated 23 June 1994; and 9. The reason for the dishonor. Instead of presenting evidence, petitioner filed a Demurrer to Evidence on August 8, 2003, or approximately ten (10) months after the prosecution rested its case. Petitioner averred that the prosecution failed to show that he received the notice of dishonor or demand letter. On March 4, 2005, the MTCC issued a resolution denying petitioner's Demurrer to Evidence, and rendering judgment finding petitioner guilty as charged, the dispositive portion of which reads: WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of issuing bouncing checks as defined and penalized under Section 1 of Batas Pambansa Blg. 22 and hereby sentences the accused the following:

1. To pay a fine of Php830,998.40 and in case of insolvency to suffer subsidiary imprisonment; 2. To pay private complainant the total face value of the checks in the amount of Php830,998.40 plus 1% interest per month beginning from the filing of the complaint. SO ORDERED. Aggrieved, petitioner appealed to the Regional Trial Court (RTC), Branch 21, Cebu City. The RTC rendered Judgment affirming in toto the MTCC decision. Petitioner moved for reconsideration, but it was denied in an Order dated December 16, 2005. In the same Order, the RTC modified the MTCC resolution by sentencing petitioner to suffer the penalty of imprisonment for six (6) months for each count of violation of B.P Blg. 22, instead of fine as originally imposed. Undaunted, petitioner elevated the matter to the CA via a petition for review under Rule 42 of the Rules of Court. In the assailed Decision, the CA dismissed the petition for lack of merit. It sustained petitioner's conviction as the elements of the crime had been sufficiently established. As to the service on petitioner of the notice of dishonor, the appellate court pointed out that petitioner did not testify, and that he did not object to the prosecution's evidence aimed at proving the fact of receipt of the notice of

dishonor. Consequently, the registry receipt and the return card adequately show the fact of receipt. As to petitioner's contention that he was denied his right to present evidence after the denial of his demurrer to evidence, the CA held that there was no such denial since it was merely the consequence of the filing of demurrer without leave of court. Finally, as to the imposition of the penalty of imprisonment instead of fine, the CA found no grave abuse of discretion on the part of the RTC since it was shown that petitioner acted in bad faith. On March 4, 2008, the CA denied petitioner's motion for reconsideration. Hence, this petition anchored on the following issues: Whether the Registry Receipt and Registry Return Receipt alone without presenting the person who mailed and/or served the demand letter is sufficient notice of dishonor as required by BP 22. Whether the filing of the Demurrer of (sic) Evidence without leave and denied by the trial court is a waiver of the right of the petitioner (the accused before the trial court) to present his evidence in support and to rebut the evidence of the respondent particularly with respect to the civil aspect of the case.

On the alternative (if the petitioner is guilty), whether the accused should only be mete[d] the penalty of fine as imposed by the trial court (MTCC). The petition is partly meritorious. After a careful evaluation of the records of the case, we believe and so hold that the totality of the evidence presented does not support petitioner's conviction for violation of B.P. Blg. 22. Section 1 of B.P. Blg. 22 defines the offense, as follows: Section 1. Checks without sufficient funds.--Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand

Pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Accordingly, this Court has held that the elements of the crime are, as follows: (1) the making, drawing, and issuance of any check to apply on account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to

stop payment. In this case, the first and third elements of the crime have been adequately established. The prosecution, however, failed to prove the second element. Because this element involves a state of mind which is difficult to establish, Section 2 of B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds under the following circumstances: Sec. 2. Evidence of knowledge of insufficient funds. -- The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. In Suarez v. People, which is on all fours with the instant case, two Informations for violation of B.P. Blg. 22 were filed against petitioner therein. After the prosecution presented its evidence, petitioner filed a Demurrer to Evidence without leave of court on

the ground that no notice of dishonor had been sent to and received by him. When the case reached this Court, we acquitted petitioner on reasonable doubt as there was insufficient proof that he received notice of dishonor. We explained that: The presumption arises when it is proved that the issuer had received this notice, and that within five banking days from its receipt, he failed to pay the amount of the check or to make arrangements for its payment. The full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense. Accordingly, procedural due process requires that a notice of dishonor be sent to and received by the petitioner to afford the opportunity to avert prosecution under B.P. Blg. 22. x x x. [I]t is not enough for the prosecution to prove that a notice of dishonor was sent to the petitioner. It is also incumbent upon the prosecution to show "that the drawer of the check received the said notice because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check. A review of the records shows that the prosecution did not prove that the petitioner received the notice of dishonor. Registry return

cards must be authenticated to serve as proof of receipt of letters sent through registered mail. In this case, the prosecution merely presented a copy of the demand letter, together with the registry receipt and the return card, allegedly sent to petitioner. However, there was no attempt to authenticate or identify the signature on the registry return card. Receipts for registered letters and return receipts do not by themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letter, claimed to be a notice of dishonor. To be sure, the presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that petitioner received such notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of the check. The prosecution must also prove actual receipt of said notice, because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check. The burden of proving notice rests upon the party asserting its existence. Ordinarily, preponderance of evidence is sufficient to prove notice. In criminal cases, however, the quantum of proof required is proof beyond reasonable doubt. Hence, for B.P. Blg. 22 cases, there should be clear proof of notice. Moreover, for notice by mail, it must appear that the same was served on the addressee or a duly authorized

agent of the addressee. From the registry receipt alone, it is possible that petitioner or his authorized agent did receive the demand letter.Possibilities, however, cannot replace proof beyond reasonable doubt. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused. The absence of a notice of dishonor necessarily deprives the accused an opportunity to preclude a criminal prosecution. As there is insufficient proof that petitioner received the notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot arise. This is so even if petitioner did not present his evidence to rebut the documentary evidence of the prosecution as he had waived his right to present evidence for having filed a demurrer to evidence without leave of court. We must emphasize that the prosecution has the burden of proving beyond reasonable doubt each element of the crime as its case will rise or fall on the strength of its own evidence, never on the weakness or even absence of that of the defense. The failure of the prosecution to prove the receipt by petitioner of the requisite notice of dishonor and that he was given at least five (5) banking days within which to settle his account constitutes sufficient ground for his acquittal. Nonetheless, petitioner's acquittal for failure of the prosecution to

prove all elements of the offense beyond reasonable doubt does not include the extinguishment of his civil liability for the dishonored checks. In case of acquittal, the accused may still be adjudged civilly liable. The extinction of the penal action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted. In a number of similar cases, we have held that an acquittal based on reasonable doubt does not preclude the award of civil damages. In view of the foregoing, we sustain the findings of the trial court, as affirmed by the CA, as to petitioner's civil liability. Finally, in answer to petitioner's insistence that he should have been allowed by the trial court to present his evidence on the civil aspect of the case, suffice it to state that when petitioner filed a demurrer to evidence without leave of court, the whole case was submitted for judgment on the basis of the evidence presented by the prosecution as the accused is deemed to have waived the right to present evidence. At that juncture, the court is called upon to decide the case including its civil aspect.

WHEREFORE, premises considered, the Court of Appeals Decision dated December 13, 2007 and Resolution dated March 4, 2008 in CA-G.R. CEB-CR No. 00300 are MODIFIED. Petitioner Jaime Alferez is ACQUITTED on reasonable doubt of violation of B.P. Blg. 22. However, the civil liability imposed on petitioner is AFFIRMED. SO ORDERED.

Carpio, (Chairperson), Peralta, Abad, and Mendoza, JJ., concur.

MARK SOLEDAD y CRISTOBAL, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Criminal Procedure; Information; The information contained all the necessary details of the offense committed, sufficient to apprise petitioner of the nature and cause of the accusation against him; Although the word possession was not used in the accusatory portion of the information, the word possessing appeared in its preamble or the first paragraph thereof.In the Information filed before the RTC, it was clearly stated that the accused is petitioner Mark Soledad y Cristobal a.k.a. Henry Yu/Arthur. It was also specified in the preamble of the Information that he was being charged with Violation of R.A. No. 8484, Section 9(e) for possessing a counterfeit access device or access device fraudulently applied for. In the accusatory portion thereof, the acts constituting the offense were clearly narrated in that [petitioner], together with other persons[,] willfully, unlawfully and feloniously defrauded private complainant by applying [for] a credit card, an access device defined under R.A. [No.] 8484, from Metrobank Card Corporation, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice

G.R. No. 184274. February 23, 2011.*

of the real Henry Yu. Moreover, it was identified that the offended party was private complainant Henry Yu and the crime was committed on or about the 13th day of August 2004 in the City of Las Pias. Undoubtedly, the Information contained all the necessary details of the offense committed, sufficient to apprise petitioner of the nature and cause of the accusation against him. As aptly argued by respondent People of the Philippines, through the Office of the Solicitor General, although the word possession was not used in the accusatory portion of the Information, the word possessing appeared in its preamble or the first paragraph thereof. Thus, contrary to petitioners contention, he was apprised that he was being charged with violation of R.A. No. 8484, specifically section 9(e) thereof, for possession of the credit card fraudulently applied for. Same; Same; Relationship between the preamble and the accusatory portion of the information discussed in People v. Villanueva, 413 SCRA 431 (2003).The Courts discussion in People v. Villanueva, 413 SCRA 431 (2003), on the relationship between the preamble and the accusatory portion of the Information is noteworthy, and we quote: The preamble or opening paragraph should not be treated as a mere aggroupment of descriptive words and phrases. It is as much an essential part [of] the Information as the accusatory paragraph itself. The

preamble in fact complements the accusatory paragraph which draws its strength from the preamble. It lays down the predicate for the charge in general terms; while the accusatory portion only provides the necessary details. The preamble and the accusatory paragraph, together, form a complete whole that gives sense and meaning to the indictment. x x x. Criminal Law; Access Devices Regulations Act of 1998 (R.A. No. 8484); The law does not define the word possession; thus, the court use the term as defined in Article 523 of the Civil Code, that is, possession is the holding of a thing or the enjoyment of a right. The trial court convicted petitioner of possession of the credit card fraudulently applied for, penalized by R.A. No. 8484. The law, however, does not define the word possession. Thus, we use the term as defined in Article 523 of the Civil Code, that is, possession is the holding of a thing or the enjoyment of a right. The acquisition of possession involves two elements: the corpus or the material holding of the thing, and the animus possidendi or the intent to possess it. Animus possidendi is a state of mind, the presence or determination of which is largely dependent on attendant events in each case. It may be inferred from the prior or contemporaneous acts of the accused, as well as the surrounding circumstances.

Same; Same; Petitioners signature on the acknowledgement receipt indicates that there was delivery and that possession was transferred to him as the recipient.Petitioner materially held the envelope containing the credit card with the intent to possess. Contrary to petitioners contention that the credit card never came into his possession because it was only delivered to him, the above narration shows that he, in fact, did an active part in acquiring possession by presenting the identification cards purportedly showing his identity as Henry Yu. Certainly, he had the intention to possess the same. Had he not actively participated, the envelope would not have been given to him. Moreover, his signature on the acknowledgment receipt indicates that there was delivery and that possession was transferred to him as the recipient. Undoubtedly, petitioner knew that the envelope contained the Metrobank credit card, as clearly indicated in the acknowledgment receipt, coupled with the fact that he applied for it using the identity of private complainant. PETITION for review on certiorari of the decision and resolution of the Court of Appeals. The facts are stated in the opinion of the Court. Leonard C. Darantinao, Jr. for petitioner.

Office of the Solicitor General for respondent. [Soledad vs. People, 644 SCRA 258(2011)]

NACHURA, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the Court of Appeals (CA) Decision[1] dated June 18, 2008 and Resolution[2] dated August 22, 2008 in CA-G.R. CR. No. 30603. The assailed Decision affirmed with modification the September 27, 2006 decision[3] of the Regional Trial Court (RTC), Branch 202, Las Pias City, finding petitioner Mark C. Soledad guilty beyond reasonable doubt of Violation of Section 9(e), Republic Act (R.A.) No. 8484, or the Access Devices Regulations Act of 1998; while the assailed Resolution denied petitioner's motion for reconsideration. The facts of the case, as narrated by the CA, are as follows: Sometime in June 2004, private complainant Henry C. Yu received a call on his mobile phone from a certain "Tess" or "Juliet Villar" (later identified as Rochelle Bagaporo), a credit card agent, who offered a Citifinancing loan assistance at a low interest rate.

Enticed by the offer, private complainant invited Rochelle Bagaporo to go to his office in Quezon City. While in his office, Rochelle Bagaporo indorsed private complainant to her immediate boss, a certain "Arthur" [later identified as petitioner]. In their telephone conversation, [petitioner] told private complainant to submit documents to a certain "Carlo" (later identified as Ronald Gobenchiong). Private complainant submitted various documents, such as his Globe handyphone original platinum gold card, identification cards and statements of accounts. Subsequently, private complainant followed up his loan status but he failed to get in touch with either [petitioner] or Ronald Gobenchiong. During the first week of August 2004, private complainant received his Globe handyphone statement of account wherein he was charged for two (2) mobile phone numbers which were not his. Upon verification with the phone company, private complainant learned that he had additional five (5) mobile numbers in his name, and the application for said cellular phone lines bore the picture of [petitioner] and his forged signature. Private complainant also checked with credit card companies and learned that his Citibank Credit Card database information was altered and he had a credit card application with Metrobank Card Corporation (Metrobank).

Thereafter, private complainant and Metrobank's junior assistant manager Jefferson Devilleres lodged a complaint with the National Bureau of Investigation (NBI) which conducted an entrapment operation. During the entrapment operation, NBI's Special Investigator (SI) Salvador Arteche [Arteche], together with some other NBI operatives, arrived in Las Pias around 5:00 P.M. [Arteche] posed as the delivery boy of the Metrobank credit card. Upon reaching the address written on the delivery receipt, [Arteche] asked for Henry Yu. [Petitioner] responded that he was Henry Yu and presented to [Arteche] two (2) identification cards which bore the name and signature of private complainant, while the picture showed the face of [petitioner]. [Petitioner] signed the delivery receipt. Thereupon, [Arteche] introduced himself as an NBI operative and apprehended [petitioner]. [Arteche] recovered from [petitioner] the two (2) identification cards he presented to [Arteche] earlier.[4] Petitioner was thus charged with Violation of Section 9(e), R.A. No. 8484 for "possessing a counterfeit access device or access device fraudulently applied for." The accusatory portion of the Information reads:

That on or about the 13th day of August 2004, or prior thereto, in the City of Las Pias, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with certain Rochelle Bagaporo a.k.a. Juliet Villar/Tess and a certain Ronald Gobenciong a.k.a. Carlo and all of them mutually helping and aiding each other, did then and there willfully, unlawfully and feloniously defraud complainant HENRY YU by applying a credit card, an access device defined under R.A. 8484, from METROBANK CARD CORPORATION, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu. CONTRARY TO LAW.[5] Upon arraignment, petitioner pleaded "not guilty." Trial on the merits ensued. After the presentation of the evidence for the prosecution, petitioner filed a Demurrer to Evidence, alleging that he was not in physical and legal possession of the credit card presented and marked in evidence by the prosecution. In an Order dated May 2, 2006, the RTC denied the Demurrer to Evidence as it preferred to rule on the merits of the case.[6]

On September 27, 2006, the RTC rendered a decision finding petitioner guilty as charged, the dispositive portion of which reads: In the light of the foregoing, the Court finds accused Mark Soledad y Cristobal a.k.a. "Henry Yu," "Arthur" GUILTY beyond reasonable doubt of violation of Section 9(e), Republic Act 8484 (Access Device Regulation Act of 1998). Accordingly, pursuant to Section 10 of Republic Act 8484 and applying the Indeterminate Sentence Law, said accused is hereby sentenced to suffer an imprisonment penalty of six (6) years of prision correccional, as minimum, to not more than ten (10) years of prision mayor, as maximum. Further, accused is also ordered to pay a fine of Ten Thousand Pesos (P10,000.00) for the offense committed. SO ORDERED.[7] On appeal, the CA affirmed petitioner's conviction, but modified the penalty imposed by the RTC by deleting the terms prision correccional and prision mayor. Hence, this petition raising the following issues:

(1) Whether or not the Information is valid; (2) Whether or not the Information charges an offense, or the offense petitioner was found guilty of; (3) Whether or not petitioner was sufficiently informed of the nature of the accusations against him; (4) Whether or not petitioner was legally in "possession" of the credit card subject of the case.[8] The petition is without merit. Petitioner was charged with Violation of R.A. No. 8484, specifically Section 9(e), which reads as follows: Section 9. Prohibited Acts. - The following acts shall constitute access device fraud and are hereby declared to be unlawful: xxxx (e) possessing one or more counterfeit access devices or access devices fraudulently applied for. In the Information filed before the RTC, it was clearly stated that the accused is petitioner "Mark Soledad y Cristobal a.k.a. Henry Yu/Arthur." It was also specified in the preamble of the Information that he was being charged with Violation of R.A. No. Petitioner assails the validity of the Information and claims that he was not informed of the accusation against him. He explains that though he was charged with "possession of an access device fraudulently applied for," the act of "possession," which is the gravamen of the offense, was not alleged in the Information. We do not agree. Section 6, Rule 110 of the Rules of Criminal Procedure lays down the guidelines in determining the sufficiency of a complaint or information. It states: SEC. 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.

8484, Section 9(e) for possessing a counterfeit access device or access device fraudulently applied for. In the accusatory portion thereof, the acts constituting the offense were clearly narrated in that "[petitioner], together with other persons[,] willfully, unlawfully and feloniously defrauded private complainant by applying [for] a credit card, an access device defined under R.A. [No.] 8484, from Metrobank Card Corporation, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu." Moreover, it was identified that the offended party was private complainant Henry Yu and the crime was committed on or about the 13th day of August 2004 in the City of Las Pias. Undoubtedly, the Information contained all the necessary details of the offense committed, sufficient to apprise petitioner of the nature and cause of the accusation against him. As aptly argued by respondent People of the Philippines, through the Office of the Solicitor General, although the word "possession" was not used in the accusatory portion of the Information, the word "possessing" appeared in its preamble or the first paragraph thereof. Thus, contrary to petitioner's contention, he was apprised that he was being charged with violation of R.A. No. 8484, specifically section 9(e) thereof, for

possession of the credit card fraudulently applied for. The Court's discussion in People v. Villanueva[9] on the relationship between the preamble and the accusatory portion of the Information is noteworthy, and we quote: The preamble or opening paragraph should not be treated as a mere aggroupment of descriptive words and phrases. It is as much an essential part [of] the Information as the accusatory paragraph itself. The preamble in fact complements the accusatory paragraph which draws its strength from the preamble. It lays down the predicate for the charge in general terms; while the accusatory portion only provides the necessary details. The preamble and the accusatory paragraph, together, form a complete whole that gives sense and meaning to the indictment. x x x. xxxx Moreover, the opening paragraph bears the operative word "accuses," which sets in motion the constitutional process of notification, and formally makes the person being charged with the commission of the offense an accused. Verily, without the opening paragraph, the accusatory portion would be nothing but a

useless and miserably incomplete narration of facts, and the entire Information would be a functionally sterile charge sheet; thus making it impossible for the state to prove its case. The Information sheet must be considered, not by sections or parts, but as one whole document serving one purpose, i.e., to inform the accused why the full panoply of state authority is being marshaled against him. Our task is not to determine whether allegations in an indictment could have been more artfully and exactly written, but solely to ensure that the constitutional requirement of notice has been fulfilled x x x.[10] Besides, even if the word "possession" was not repeated in the accusatory portion of the Information, the acts constituting it were clearly described in the statement "[that the] credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu." Without a doubt, petitioner was given the necessary data as to why he was being prosecuted. Now on the sufficiency of evidence leading to his conviction. Petitioner avers that he was never in possession of the subject

credit card because he was arrested immediately after signing the acknowledgement receipt. Thus, he did not yet know the contents of the envelope delivered and had no control over the subject credit card.[11] Again, we find no value in petitioner's argument. The trial court convicted petitioner of possession of the credit card fraudulently applied for, penalized by R.A. No. 8484. The law, however, does not define the word "possession." Thus, we use the term as defined in Article 523 of the Civil Code, that is, "possession is the holding of a thing or the enjoyment of a right." The acquisition of possession involves two elements: the corpus or the material holding of the thing, and the animus possidendi or the intent to possess it.[12] Animus possidendi is a state of mind, the presence or determination of which is largely dependent on attendant events in each case. It may be inferred from the prior or contemporaneous acts of the accused, as well as the surrounding circumstances.[13] In this case, prior to the commission of the crime, petitioner fraudulently obtained from private complainant various documents showing the latter's identity. He, thereafter, obtained cellular phones using private complainant's identity. Undaunted, he

fraudulently applied for a credit card under the name and personal circumstances of private complainant. Upon the delivery of the credit card applied for, the "messenger" (an NBI agent) required two valid identification cards. Petitioner thus showed two identification cards with his picture on them, but bearing the name and forged signature of private complainant. As evidence of the receipt of the envelope delivered, petitioner signed the acknowledgment receipt shown by the messenger, indicating therein that the content of the envelope was the Metrobank credit card. Petitioner materially held the envelope containing the credit card with the intent to possess. Contrary to petitioner's contention that the credit card never came into his possession because it was only delivered to him, the above narration shows that he, in fact, did an active part in acquiring possession by presenting the identification cards purportedly showing his identity as Henry Yu. Certainly, he had the intention to possess the same. Had he not actively participated, the envelope would not have been given to him. Moreover, his signature on the acknowledgment receipt indicates that there was delivery and that possession was transferred to him as the recipient. Undoubtedly, petitioner knew that the envelope contained the Metrobank credit card, as clearly indicated in the acknowledgment receipt, coupled with the fact

that he applied for it using the identity of private complainant. Lastly, we find no reason to alter the penalty imposed by the RTC as modified by the CA. Section 10 of R.A. No. 8484 prescribes the penalty of imprisonment for not less than six (6) years and not more than ten (10) years, and a fine of P10,000.00 or twice the value of the access device obtained, whichever is greater. Thus, the CA aptly affirmed the imposition of the indeterminate penalty of six years to not more than ten years imprisonment, and a fine of P10,000.00. WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals Decision dated June 18, 2008 and Resolution dated August 22, 2008 in CA-G.R. CR. No. 30603 are AFFIRMED. SO ORDERED.

Carpio, (Chairperson), Velasco, Jr.,* Abad, and Mendoza, JJ., concur.

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