Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
Bacolod City, Negros Occidental

CMC 417 Enterprises Corp. NPS DOCKET NO:

and Charmaine Campos VI-03-INV-18B-0153
Complainant,

-versus- For: Qualified Theft

DINAH VILLARTA DELA CRUZ

Respondent.
x------------------------------------x

MOTION FOR RECONSIDERATION

(Resolution dated May 15, 2018)

The respondent Dinah Villarta Dela Cruz, through the

undersigned counsel and unto this Honorable Office of
Investigating Prosecutor, most respectfully avers:

TIMELINESS

1. On June 20, 2018, the undersigned counsel received a copy

of the Resolution dated May 15, 2018 which the dispositive
portion states:

“WHEREFORE, upon the approval of this resolution, the

filing of the attached information in Court for three (3)
counts of Qualified Theft against respondent Dinah
Villarta Dela Cruz is respectfully recommended. So
Resolved. Bacolod City, Philippines. May 15, 2018.”

2. That under the rules, a motion for reconsideration may be

filed within ten (10) days from receipt of the resolution. The
motion shall be verified, addressed to the Provincial/City
Prosecutor or the Chief State Prosecutor, and accompanied
by proof of service of a copy thereof on the opposing party
and must state clearly and distinctly the grounds relied upon
in support of the motion. Hence, the complainant has ten
(10) days until June 30, 2018 to submit her Motion for
Reconsideration.
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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
 GROUNDS FOR RECONSIDERATION

3. On the fallo of the Resolution, the Honorable Investigating

Prosecutor explained, to quote:

“We, however, finds that the respondent could

ONLY be held liable and accountable for three
(3) counts of Qualified Theft as follows:
1. One Count of Qualified Theft for the Php
3,000.00 loan extended to Maricel Azumbra
taken from the cash box committed sometime
on February 2014;
2. One Count of Qualified Theft for the Php
2,000.00 loan extended to April Rose Gustilo
taken from the cash box committed sometime
on January 2015; and
3. One Count of Qualified Theft for the monies
taken from the cash box for Sunady snack
and meals committed on January 2012 and
sometime thereafter, totaling to Php 279,
360.00 (Php 63, 360 + Php 216, 000.00)”

4. With all due respect, the respondent begs to disagree with

the Resolution of the Honorable Investigating Prosecutor
on the following grounds:

A. First, the elements of Qualified Theft are not satisfied in

all the three counts enumerated in the Resolution.

B. Second, the third count “One Count of Qualified Theft for

the monies taken from the cash box for Sunady snack and
meals committed on January 2012 and sometime
thereafter, totaling to Php 279, 360.00 (Php 63, 360 + Php
216, 000.00)" cannot be a valid ground for filing an
information for being duplicitous or that more than one
offense is charged except when a single punishment for
various offenses is prescribed by law.

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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
 ARGUMENTS AND DISCUSSION

A. THE ELEMENTS OF QUALIFIED

THEFT ARE NOT SATISFIED IN ALL
THREE COUNTS ENUMERATED IN
THE RESOLUTION.

The qualified theft punishable under Article 310 in relation

to Articles 308 and 309 of the Revised Penal Code (RPC) is
committed when the following elements are present:
1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owner’s consent;
5. That it be accomplished without the use of violence or
intimidation against persons, nor of force upon things; and
6. That it be done with grave abuse of confidence.

It is important to revisit the allegations made by April Rose

Gustilo and Maricel Azumbra which were cited to be the two
counts of qualified theft.

On the affidavit of Maricel Zumbra, she stated under oath the

following:

“8. Sometime on February 2014, I approached Dinah for a

personal loan. Since I was borrowing from her I was surprised
when she took P3,000.00 from the cash box and handed it. She
told me to keep mum about it and took P1,000.00 from the cash box
for herself;”

On the affidavit of April Rose Gustilo, she stated under oath

the following:

“12. Sometime on January 2015, I approached Dinah for a

personal loan for which to pay the boarding house of my younger
sister/brother in Caingin, Pontevedra. Dinah agreed to lend me but
asked to pay her soon. She then took P2,000.00 from cash box
and gave it to me. After more than a month passed and I was not
able to pay my loan, Dinah told me not to pay the amount in fill
because we will just divide my payment between ourselves;”
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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
 It is important that the element of intent to gain (animus
lucrandi) must be supported by substantial evidence to satisfy the
quantum of evidence required in finding probable cause. It
appears in the sworn statement of the witnesses that the
respondent did not take the said amount for herself. Instead, the
witnesses themselves took the money and use it for their own
personal gain and kept it secret from the owner.
Granting for the sake of argument that the allegations made
by Azumbra and Gustilo are true, these employees are the one who
admittedly took the money and use it for their own personal gain
when they were in the position to return and refused to receive
the same at the moment that the money was handed to them.
Instead, they took the money, use it for their own gain with full
knowledge that the owner did not give her consent to the said
loans. On the part of the respondent, intent to gain is absent in
this case because the respondent did not take the money for
herself or for her own gain.

B. THE FINDINGS BASED ON

ADMISSION OF THE WITNESSES
VIOLATES THE DOCTRINE OF RES
INTER ALIOS ACTA RULE.

The admissions made by Gustilo and Asumbra are fitted to

the elements of qualified theft because they have the intent to gain
and that they took the money without the consent of the owner
with grave abuse of trust and confidence since they also have
access to the cash box being co-employees of the respondent. They
knowingly did the taking with full knowledge they are stealing
from the owner.
Their admissions cannot be used against the respondent to
bear the liabilities for the taking and benefits reaped by these
witnesses. In all allegations, the respondent did not manifest any
intent to gain or have any motive to take money from the cash box.
Rather, the witnesses have shown their own motives to commit

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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
the taking and use it for themselves but thrown the blame to the
respondent.
The rule on res inter alios acta provides that the rights of a
party cannot be prejudiced by an act, declaration, or omission of
another. Consequently, an extrajudicial confession is binding only
on the confessant, is not admissible against his or her co-accused
and is considered as hearsay against them.
“On a principle of good faith and mutual
convenience, a man’s own acts are binding upon
himself, and are evidence against him. So are his
conduct and declarations. Yet it would not only be
rightly inconvenient, but also manifestly unjust,
that a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not
to be bound by the acts of strangers, neither ought
their acts or conduct be used as evidence against
him.1”

C. THE CRIME OF QUALIFIED THEFT IS

NOT A CONTINUING OFFENSE AND
EACH AND EVERY TAKING MUST BE
PROVED AND CANNOT BE LUMPED
TOGETHER INTO ONE
INFORMATION.

The Honorable Investigating Prosecutor finds the third count

as follows:
“One Count of Qualified Theft for the monies taken
from the cash box for Sunday snack and meals
committed on January 2012 and sometime
thereafter, totaling to Php 279, 360.00 (Php 63,
360 + Php 216, 000.00)"

1
HAROLD V. TAMARGO vs. ROMULO AWINGAN, et al. G.R. No. 177727, January 19, 2010, Third Division,
Corona, J.
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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
 This is an over whelming generalization because the
crime of qualified theft cannot be a continuing offense but each
and every taking must be supported by evidence.
“A continued crime is a single crime consisting of
a series of acts but all arising from one criminal
resolution. It is a continuous, unlawful act or
series of acts set on foot by a single impulse and
operated by an unintermittent force, however
long a time it may occupy. Although there are
series of acts, there is only one crime committed.
Hence, only one penalty shall be imposed.”2
In the case at hand, the allegations made were “every
Sunday sometime from January 2012 until thereafter” is not a
valid time frame to established taking and it is not supported by
any evidence the amount taken but only an estimation of the
number of employees and the number of dates falling into Sundays
between January 2012 and thereafter.
In a crime of theft, it is important to prove each and every
act committed and it cannot be lumped together because it lacks
one criminal design. To be a continuing offense, all acts must be
made and taken as one offense because each act are important
ingredient to the whole criminal design.
In an old case but still relevant to the issue at hand, Supreme
Court stated that continuing offense is not applicable to theft. To
quote from Simplicio Duran et al vs Bienvenido A. Tan3:
“The American rule that larceny is a continuing
offense does not apply to theft because
"carrying away" which is one of the
characteristics of larceny is not an essential
ingredient of theft, as stated by this Court in the
in the Mercado case. if, as maintained by some
members of the court, every moment's
continuance of the thief's possession is a new
taking and aspiration, then criminal action

2
Mallari vs People of the Philippines G.R. No. L-58886 December 13, 1988
3
G.R. No. L-2760 February 11, 1950
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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
 would never prescribe against a thief in
possession of the stolen thing.”
Therefore, the complainant failed to show any proof of
taking and any supporting evidence how and when it was made
because the complaint only showed general assumption but
without any supporting evidence except general statement made
by the witnesses whom themselves could not remember when it
happened. The majority of the testimony only summed up as they
ate Mang Inasal/Jollibee meal on a Sunday. They never saw the
actual taking where the money used for payment but only claimed
to be taken from the store’s cash receipts. To quote from the sworn
statement of Jerty Melgar Lim, Gilber Lumawag Plateros, Genelyn
Marbano Gaylo, Mary Grace Lamela Narciso, Reynaldo Naquines
Gavieta, Rex Gabieta Avaristo and Julius Dupo Escodilla:
“5. For the past three years, it had been a
customary practice in our store every Sunday
the sum of P40.00 for our afternoon snacks on top
of our daily wage. We also enjoy a free meal for
lunch either from Mang Inasal or Jollibee.
Disbursement to cover our snacks and meals are
taken from the store’s cash receipts for the
day;”
This is a general claim which is unfounded by any evidence
to support that the allegation is true. It cannot also be lumped as
one offense of qualified theft but it must show each and every
taking of P40.00 and taking of each and every Mang Inasal and
taking of each and every Jollibee meal.
If this will be allowed to be filed as an Information, it will
violate the right of the accused to be informed of the nature of
the offense charged to be able to set up her defense and
knowingly and intelligently able to give her plea.
This is a duplicitous in nature and it charges the accused
of multiple acts of theft for one information only. Now, to break
down this third count into each and every taking as one offense,
each allegation must be supported by substantial evidence to have
a probable cause for filing of an information. There is none. There
were no attached receipts nor proof of taking for any of the snacks,

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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
Jollibee or Mang Inasal meal. There could be no probability that
these allegations ever happened.
“A finding of probable cause needs only to rest on
evidence showing that more likely than not a crime
has been committed by the suspects. It need not be
based on clear and convincing evidence of guilt, not
on evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining
probable cause, the average man weighs facts
and circumstances without resorting to the
calibrations of the rules of evidence of which he
has no technical knowledge. He relies on
common sense. What is determined is whether
there is sufficient ground to engender a well-
founded belief that a crime has been committed
, and that the accused is probably guilty thereof
and should be held for trial. It does not require
an inquiry as to whether there is sufficient
evidence to secure a conviction. (Emphasis
supplied)
Apropos thereto, for the public prosecutor to
determine if there exists a well-founded belief that
a crime has been committed, and that the suspect
is probably guilty of the same, the elements of the
crime charged should, in all reasonable likelihood,
be present. This is based on the principle that
every crime is defined by its elements, without
which there should be, at the most, no criminal
offense.4”
Therefore, the computation of Php 279,360.00 or Php 63,
360 + Php 216,000.00 based on mathematical estimation of No.
of employees multiplied by price of unknown Jollibee meal/
Mang Inasal meal as factors and the product is multiplied to
no. of “Sundays from January 2012 until thereafter” is an

4
Eliseo Aguilar vs DOJ G.R. No. 197522 September 11, 2013
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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
unfounded allegation, unsupported by substantial evidence to
support a well-founded belief that a theft has been committed.
PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Office of the Investigating Prosecutor to
RECONSIDER, REVERSE AND SET ASIDE the Resolution dated
May 15, 2018 and dismiss the complaint for lack of merit.
Other reliefs just and equitable is also prayed for.
Respectfully submitted.
June 23, 2018, Iloilo City for Bacolod City, Philippines.

Atty. MARIA CECILIA S. MAQUIRANG

BUÑOL-ALFUENTE AND ASSOCIATES LAW OFFICE
Counsel for the respondent Dinah Dela Cruz
Door 11, 2nd floor Jamerlan Building Iznart Street, Iloilo City
Contact Nos. (033) 509-9729/09778550535
mariaceciliamaquirang@gmail.com
IBP OR 030044 issued in Iloilo City, January 10, 2018
PTR OR 5751212 /issued in Iloilo City, January 4, 2018
MCLE Compliance: V-0014910
Valid from 3/04/2016-valid until 04/14/2019
Iloilo City
Roll of Attorney No. 64195

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Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft
 NOTICE
Hon. Ferdinand Castro
Investigating Prosecutor
Office of the City Prosecutor
Hall of Justice, Bacolod City

Sir:

Greetings!
Please take notice and cognizance of the foregoing Motion for
Reconsideration. Respectfully submitted.

Atty. Maria Cecilia S. Maquirang

PROOF SERVICE
Copy furnished:

Cioco, Cioco and Cioco Law Office

Counsel for the complainant CMC 417 Enterprises Corporation
RM. 203 2nd floor Parklane Bldg. Cor. Hilado-Tindalo Stst.
Capitol Shopping Center, Bacolod City
Registered mail: _________________________
Date: __________________________________

EXPLANATION

Due to distance and lack of personnel, this Compliance is

sent to the complainant’s counsel by registered mail rather
than the preferred personal service in accordance with
Section 11, Rule 13 of the Revised Rules of Court.

Atty. Maria Cecilia S. Maquirang

10 | P a g e o f 1 0 C M C 4 1 7 E n t e r p r i s e s C o r p . / C h a r m a i n e
Campos versus Dinah Villarta Dela Cruz NPS Docket No.
VI-03-INV-18V-0153 for Qualified Theft