Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 134298           August 26, 1999

RAMON C. TAN, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

PARDO, J.:

The case before the Court is an appeal via certiorari from a decision of the Court of Appeals * affirming that of the Regional Trial Court of Manila, Branch 19, ** convicting petitioner of the crime of fencing.

Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991, Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass screws were missing. She conducted an inventory and discovered that propellers and stocks valued at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he admitted that he and his companion Gaudencio Dayop stole from the complainant's warehouse some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito Mendez asked the complainant's forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought the stolen items and who paid the amount of P13,000.00, in cash to Mendez and Dayop, and they split the amount with one another. Complainant did not file a case against Manuelito Mendez and Gaudencio Dayop.

On relation of complainant Lim, an Assistant City Prosecutor of Manila filed with the Regional Trial Court, Manila, Branch 19, an information against petitioner charging him with violation of Presidential Decree No. 1612 (Anti-Fencing Law) committed as follows:

That on or about the last week of February 1991, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously knowingly receive, keep, acquire and possess several spare parts and items for fishing boats all valued at P48,130.00 belonging to Rosita Lim, which he knew or should have known to have been derived from the proceeds of the crime of theft.

Contrary to law.

Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the crime charged and waived pre-trial. To prove the accusation, the prosecution presented

the testimonies of complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez.

On the other hand, the defense presented Rosita Lim and Manuelito Mendez as hostile witnesses and petitioner himself. The testimonies of the witnesses were summarized by the trial court in its decision, as follows:

ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the business of manufacturing propellers, bushings, welding rods, among others (Exhibits A, A-1, and B). That sometime in February 1991, after one of her employees left the company, she discovered that some of the manufactured spare parts were missing, so that on February 19, 1991, an inventory was conducted and it was found that some welding rods and propellers, among others, worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the person who recommended Mr. Mendez to her. Subsequently, Mr. Mendez was arrested in the Visayas, and upon arrival in Manila, admitted to his having stolen the missing spare parts sold then to Ramon Tan. She then talked to Mr. Tan, who denied having bought the same. 1âwphi1.nêt

When presented on rebuttal, she stated that some of their stocks were bought under the name of Asia Pacific, the guarantor of their Industrial Welding Corporation, and stated further that whether the stocks are bought under the name of the said corporation or under the name of William Tan, her husband, all of these items were actually delivered to the store at 3012-3014 Jose Abad Santos Street and all paid by her husband.

That for about one (1) year, there existed a business relationship between her husband and Mr. Tan. Mr. Tan used to buy from them stocks of propellers while they likewise bought from the former brass woods, and that there is no reason whatsoever why she has to frame up Mr. Tan.

MANUELITO MENDEZ stated that he worked as helper at Bueno Metal Industries from November 1990 up to February 1991. That sometime in the third week of February 1991, together with Gaudencio Dayop, his co-employee, they took from the warehouse of Rosita Lim some boat spare parts, such as bronze and stainless propellers, brass screws, etc. They delivered said stolen items to Ramon Tan, who paid for them in cash in the amount of P13,000.00. After taking his share (one-half (1/2) of the amount), he went home directly to the province. When he received a letter from his uncle, Victor Sy, he decided to return to Manila. He was then accompanied by his uncle to see Mrs. Lim, from whom he begged for forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit prepared by a certain Perlas, a CIS personnel, subscribed to before a Notary Public (Exhibits C and C-1).

VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs. Rosita Lim, the former being the nephew of his wife while the latter is his auntie. That sometime in February 1991, his auntie called up and informed him about the spare parts stolen from the warehouse by Manuelito Mendez. So that he sent his son to Cebu and requested his kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest and bring Mendez back to Manila. When Mr. Mendez was

brought to Manila, together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the pier after which they proceeded to the house of his auntie. Mr. Mendez admitted to him having stolen the missing items and sold to Mr. Ramon Tan in Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied the same.

ROSITA LIM, when called to testify as a hostile witness, narrated that she owns Bueno Metal Industries located at 301 Jose Abad Santos Street, Tondo, Manila. That two (2) days after Manuelito Mendez and Gaudencio Dayop left, her husband, William Tan, conducted an inventory and discovered that some of the spare parts worth P48,000.00 were missing. Some of the missing items were under the name of Asia Pacific and William Tan.

MANUELITO MENDEZ, likewise, when called to testify as a hostile witness, stated that he received a subpoena in the Visayas from the wife of Victor Sy, accompanied by a policeman of Buliloan, Cebu on April 8, 1991. That he consented to come to Manila to ask forgiveness from Rosita Lim. That in connection with this case, he executed an affidavit on April 12, 1991, prepared by a certain Atty. Perlas, a CIS personnel, and the contents thereof were explained to him by Rosita Lim before he signed the same before Atty. Jose Tayo, a Notary Public, at Magnolia House, Carriedo, Manila (Exhibits C and C-1).

That usually, it was the secretary of Mr. Tan who accepted the items delivered to Ramon Hardware. Further, he stated that the stolen items from the warehouse were placed in a sack and he talked to Mr. Tan first over the phone before he delivered the spare parts. It was Mr. Tan himself who accepted the stolen items in the morning at about 7:00 to 8:00 o'clock and paid P13,000.00 for them.

RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged in selling hardware (marine spare parts) at 944 Espeleta Street, Sta. Cruz, Manila.

He denied having bought the stolen spare parts worth P48,000.00 for he never talked nor met Manuelito Mendez, the confessed thief. That further the two (2) receipts presented by Mrs. Lim are not under her name and the other two (2) are under the name of William Tan, the husband, all in all amounting to P18,000.00. Besides, the incident was not reported to the police (Exhibits 1 to 1-g).

He likewise denied having talked to Manuelito Mendez over the phone on the day of the delivery of the stolen items and could not have accepted the said items personally for everytime (sic) goods are delivered to his store, the same are being accepted by his staff. It is not possible for him to be at his office at about 7:00 to 8:00 o'clock in the morning, because he usually reported to his office at 9:00 o'clock. In connection with this case, he executed a counter-affidavit (Exhibits 2 and 2-a).1

On August 5, 1996, the trial court rendered decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the accused RAMON C. TAN is hereby found guilty beyond reasonable doubt of violating the Anti-Fencing Law of 1979, otherwise

known as Presidential Decree No. 1612, and sentences him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the value of the stolen merchandise purchased by him in the sum of P18,000.00.

Costs against the accused.

SO ORDERED.

Manila, Philippines, August 5, 1996.

(s/t) ZENAIDA R. DAGUNAJudge

Petitioner appealed to the Court of Appeals.

After due proceedings, on January 29, 1998, the Courts of Appeals rendered decision finding no error in judgment appealed from, and affirming the same in toto.

In due time, petitioner filed with the Court of Appeals a motion for reconsideration; however, on June 16, 1998, the Court of Appeals denied the motion.

Hence, this petition.

The issue raised is whether or not the prosecution has successfully established the elements of fencing as against petitioner.2

We resolve the issue in favor of petitioner.

"Fencing, as defined in Section 2 of P.D. No. 1612 is "the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."3

"Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon things."4

The crime of theft is committed if the taking is without violence against or intimidation of persons nor force upon things.5

"The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft."6

Before the enactment of P.D. No. 1612 in 1979, the fence could only be prosecuted as an accessory after the fact of robbery or theft, as the term is defined in Article 19 of the

Revised Penal Code, but the penalty was light as it was two (2) degrees lower than that prescribed for the principal.7

P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft." Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, the accused ceases to be a mere accessory but becomes a principal in the crime of fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses.8 The State may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is malum prohibitum, and P.D. No. 1612 creates a presumption of fencing9 and prescribes a higher penalty based on the value of the property.10

In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of fencing as follows:

1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

4. There is on the part of the accused, intent to gain for himself or for another.11

Consequently, "the prosecution must prove the guilt of the accused by establishing the existence of all the elements of the crime charged."12

Short of evidence establishing beyond reasonable doubt the existence of the essential elements of fencing, there can be no conviction for such offense.13 "It is an ancient principle of our penal system that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9)."14

In this case, what was the evidence of the commission of theft independently of fencing?

Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft.

Thus, the first element of the crime of fencing is absent, that is, crime of robbery or theft has been committed.

There was no sufficient proof of the unlawful taking of another's property. True, witness Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from complainant to petitioner. However, an admission or confession acknowledging guilt of an offense may be given in evidence only against the person admitting or confessing.15 Even on this, if given extra-judicially, the confessant must have the assistance of counsel; otherwise, the admission would be inadmissible in evidence against the person so admitting.16 Here, the extra-judicial confession of witness Mendez was not given with the assistance of counsel, hence, inadmissible against the witness. Neither may such extra-judicial confession be considered evidence against accused.17 There must be corroboration by evidence of corpus delicti to sustain a finding of guilt.18 Corpus delicti means the "body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed."19 The "essential elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against persons or force upon things (U.S. vs. De Vera, 43 Phil. 1000)."20 In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking.21 In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti.22

What is more, there was no showing at all that the accused knew or should have known that the very stolen articles were the ones sold him. "One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence."23

Without petitioner knowing that he acquired stolen articles, he can not be guilty of "fencing".24

Consequently, the prosecution has failed to establish the essential elements of fencing, and thus petitioner is entitled to an acquittal.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. C.R. No. 20059 and hereby ACQUITS petitioner of the offense charged in Criminal Case No. 92-108222 of the Regional Trial Court, Manila. 1âwphi1.nêt

Costs de oficio.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 139250               August 15, 2000

GABRIEL CAPILI, petitioner, vs.COURT OF APPEALS, ET. AL., respondents.

D E C I S I O N

GONZAGA-REYES, J.:

This Petition for Review on Certiorari seeks the reversal of the Decision of the Court of Appeals1 in CA G.R. CR No. 19336 entitled "People of the Philippines vs. Gabriel Capili, et. al." affirming the Decision of the Regional Trial Court2 of the National Capital Judicial Region, Branch 34, finding Gabriel Capili guilty beyond reasonable doubt of violation of Presidential Decree 1612.

Gabriel Capili y Recto (GABRIEL) together with his wife Ferma Capili y Inot were charged with violation of Presidential Decree 1612, otherwise known as the Anti-Fencing Law, in an information that reads:

"That on or about November 5, 1993, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other. With intent to gain for themselves or for another, did then and there willfully and knowingly receive, possess, keep, acquire and sell or dispose of the following, to wit:

Assorted pieces of jewelry

Several pieces of old coins (U.S. dollar)

all valued at P3,000,000.00, which they knew or should have known to have been derived from the proceeds of a (sic) crime of theft.

Contrary to law."3

On December 3, 1993, both accused entered a plea of not guilty to the offense charged with the assistance of counsel.4 Thereafter, trial ensued.

The trial court summarized the testimonies of the witnesses as follows:

"x x x           x x x          x x x

Christine Diokno testified that at 4:00 P.M. on November 4, 1993, when she went home from her office, she discovered that some of her (sic) items at (sic) her closet and the jewelries (sic) and money at (sic) her mother’s room were taken. Upon call, two Makati police responded and surveyed the room where the robbery took place. The police officer took her statement (Exhs. "F", "F-1" and "F-2") and then investigated the theft case. Police prepared the police report and concluded that Michael Manzo, her former houseboy, committed the offense so a case against Manzo was filed. She described all the properties that were taken as those reflected in the police report because according to her she gave the police a list of the items and is part of her statement (tsn, p. 11, May 11, 1994). Allegedly the value is about 3 Million pesos, some were of 20 years and some were of 30 years vintage, acquired by her parents since their wedding in 1945. Some from abroad, States or Hongkong acquired during trips.

On November 27, 1993, Quiapo sub-station informed her that Michael Manzo was there. She talked to Michael Manzo who admitted the commission of the stealing and that he sold the items to Gabriel Capili and his wife forP50,000.00. Likewise Michael Manzo admitted that on two occasions Gabriel Capili returned some of the items. The first was before he went to Isabela. That Capili returned to him (Manzo) the memorabilia taken from her room consisting of (sic) school ring, bracelets, key chain and some custom jewelries (sic) and some other items. That three days before the apprehension Gabriel returned the Raymond Wiel watch and two cast rings with diamonds. The first ring is valued at P3,000.00 the second watch was (sic) cost P20,000.00 to P60,000.00 and the two cast rings about P80,000.00. Then Manzo informed her that he sold those items returned to other buyers, near Claro M. Recto, who paid P1,500.00 and P1,000.00 for the ring which police officer (sic) failed to recover because the stand was no longer there. She was shown by the police officer the items recovered from Gabriel Capili and his wife which she identified as her property. Shown with Exhs. "A", "B", "C", she said those are her properties and that the coins (sic) were acquired during the trips to the States. She kept John F. Kennedy dollar coins contained in a small box. She further relayed that the coins, Exh. "A" came from a brooch owned by her mother. The chain with medal of our Lady was bought by her mother and was given to her together with other belongings.

That before the discovery of the incident her mother had the list of all the items by counting them physically because her mother used to check the jewelry every week in her presence. That all is worth three (3) Million Pesos because the jewelries (sic) were sometimes brought to a jeweler for a change or for removal of stones or replacement that is why she considered that all the jewelries (sic) were appraised. She does not know, however, what exactly were brought by her mother. That she was present during the last inventory of the items and the land titles by her mother, presenting the alleged inventory on August 1, 1993 (Exh. "S"), after her father died on July 15, 1993. While her mother was checking them, she

was in the room writing the description of the jewelries (sic), the cost and date when bought. That the corresponding value stated came from her mother kept inside the vault.

That on November 2, 1993, she took out all the items because November 9 was her mother’s birthday and would like to select the items she and her mother were going to wear for the occasion then check the jewelries (sic) against the prepared list. The list included the items lost but did not include the box of memorabilia which was taken from her room. She claimed that the records including the receipts from where the list was taken were lost together with the jewelries (sic) that were taken.

x x x           x x x          x x x

To support the allegation in the Information Michael Manzo testified that after he asked his friend Emilio Benitez where he can sell his jewelries (sic) he was brought to Boy Recto’s (accused) house at 1260 Carola St., Sampaloc, Manila, to whom he gave one bag of jewelries (sic) with the information that he stole them while he was a house boy. Recto agreed to pay him P50,000.00 (p. 3, tsn, March 3, 1994). He left and went back after a week or on November 5, as he needed the money. He was paid P1,500.00. He left again and went back after two weeks and was paid again P6,000.00. He left again but in his return he was not paid anymore.

When he visited his friend Emilio Benitez at the precinct, having been charged with vagrancy, he was caught by the police asking him where he brought the jewelries (sic), so he pointed to Boy Recto, who was picked-up and brought to the station and investigated. During the frisking and searching at the station, police officers found pearls and old coins from Gabriel Capili. The following day, Mrs. Ferma Capili was investigated at sub-station 3, Quiapo, WPD.

He identified the pearl earring with copper (sic) with diamond (Exh. "A"). He likewise identified the old coin 4 pieces of dollars marked as Exhs. "B-1", "B-2", "B-3" and "B-4"; "B-1", "B-2" dimes, "B-3" and "B-4" quarter cents; pendant with inscription Boy Recto, Exh. "C". He admitted that the statement marked as Exh. "D" and sub-markings is his.

Describing the contents of the bag, he said that there were more or less 20 pieces of rings, some with pearls and some with diamonds and birthstones; more or less 20 pairs of earrings, diamond with pearls; more or less 10 pieces of necklaces of plain gold with pendant with the replica of God and cast with diamond. There were Quartz watches; 3 pieces Bulova watches; 5 pieces of Seiko watches, Raymond Wiel. That per complainant’s information, all of them costs (sic) 3 Million Pesos which he merely gave to the accused without counting them. He however, claims that they will cost only one to two million pesos. Despite which value, he entrusted them to Boy Recto without counting the pieces.

Defense adopted Exhibit "B" as Exhibit "1" and sub-markings, Exhibit "D" as their Exhibit "2" and "2-a".

That during the investigation, when he was given another lawyer, he stated that he told the accused to sell the jewelries (sic) he stole. (p. 6, tsn, March 16, 1994)

That witness explained that only the fancy ones were returned to him.

That three days after he left the jewelries (sic) to (sic) Recto, they had drinking session somewhere at Recto, on which occasion, he did not ask for the jewelries (sic).

That the P1,500.00 was given to him near the bus terminal at Sampaloc near UST and when the fancies (sic) were returned, which he came to know as such because he had it appraised in a pawnshop when they arrived from Roxas, Isabela. When the jewelries (sic) were returned contained in the bag, he accepted, opened (sic) for a couple of minutes without counting. That Emilio Benitez glanced on (sic) them because the bus was about leave. Recto gave the instruction that he can come back within two weeks because Boy Recto will pay.

The witness admitted that he is facing a charge of Qualified Theft in Makati pending before a court where he posted his bail. That he is testifying before this Court out of his own volition. He explained that they went to Isabela per instruction of Gabriel Capili that they should lie low because the police were hunting for them and that Emilio Benitez is from Roxas, Isabela.

After more or less two weeks when (sic) they arrived from Isabela, he was requested by Boy Recto (Gabriel Capili) to sign a blank document somewhere at Espana (Document Exh. "3" to "3-A"). He was not, however, forced. That upon arrival from Isabela, they went to the house of the accused then proceeded to wait at a hotel in Sta. Cruz. After three hours of waiting, the accused arrived and gave him P6,000.00 in the presence of Emilio Benitez without receipt. He declared that he himself is not sure whether all the jewelries (sic) inside the bag are (sic) genuine or not.

Having admitted to the police that he is Michael Manzo, he was asked where he brought the jewelries (sic) so he pointed to Boy Recto. He admitted to have signed a blank document, Exhibit "4" and "3", his signature, Exh. "4-1" and Exh."3-A", but do (sic) not know where the originals were, but later said that the originals are in the hands of the police officers.

SPO3 Ernesto Ramirez testified that as police officer of Station 3, on November 27, 1993 he investigated Michael Manzo who was accused of Qualified Theft at Makati and who admitted to him having committed said offense and pointed to the house of Gabriel Capili at Sampaloc, Manila where he sold the jewelries (sic). Thereafter, he and his companions SPO2 Reyes, SPO3 Salalia and SPO3 Fuentes with Michael Manzo went to the place and saw the wife of Gabriel Capili wearing the pair of earrings, one of the jewelries (sic) stolen. They were allowed by Gabriel Capili to get (sic) inside the residence where Gabriel Capili showed him the signed document of Michael Manzo, Exh. "4" and said he returned the jewelries (sic). It was however, denied by Manzo although he admitted the signature. Gabriel Capili went with them to the police precinct where he (Gabriel Capili) was referred to the investigator and found (sic) from his pockets 4 pieces of coins. Allegedly while the wife was then being investigated, Manzo pointed to the earrings worn by the (sic) wife as part of those stolen properties. The same was taken by the investigator. He pointed to both accused inside the courtroom.

SPO1 Eduardo San Diego also from Station 3, Quiapo, Manila, investigator, investigated the case of Qualified Theft that happened at the house of Cristine Diokno. Both accused were positively identified by Michael Manzo so he took the latter’s statement. That during his investigation he recovered a necklace with pendant, US dollar coins with different denominations and one pair of earrings (Exh. "A", "B" and "C"). In their investigation they tried to recover the other items but failed because the establishment of the other buyer pointed to them by Michael Manzo was no longer existing. He prepared the booking sheet and arrest report Exhs. "D" and "E" and sub-markings.

x x x           x x x          x x x

Gabriel Capili denied any knowledge about the charge against him and declared that what Michael Manzo stated in court that he agreed to pay P50,000.00 but paid only P1,800.00 is not true. He was at home on November 10, 1993 selling junk foods (sic) when he was called by Emil, companion of Michael Manzo, through the phone which number he gave to Emil when the latter bought something on credit from him a week before that date. Emil asked him if he would like to buy jewelry to whom he relayed if he will see the jewelry. Emil arrived at 2:00 o’clock P.M. together with Michael Manzo, the first time he saw the latter and showed him two (2) pieces of jewelry, one birthstone and an old coin with a price of P2,000.00. He inquired from (sic) where the jewelries (sic) came from and was answered by Michael Manzo that it came from and (sic) being sold by his mother. He declined because he cannot pay for it. Michael Manzo handed to Emil something wrapped of which he was asked to appraise. Michael Manzo asked him if he knew somebody who can buy. He said he has but hard to see because he seldom see the man already but was invited to see the person at Recto. After boarding the taxi they did not proceed immediately to the place. Michael Manzo ordered the taxi cab to go back to Sta. Mesa Love Hotel where he was told to wait. Michael Manzo went up the hotel while Emil went towards Aurora Boulevard walking carrying some items but did not know what happened. After one hour of waiting at the taxicab and worried about the taxi fare, he went inside the hotel and after inquiring from the counter where his companion was, Michael Manzo went down with two women companions. Fifteen minutes after the two women left, Emil arrived and said he went to Cubao selling the jewelries (sic). Thereafter, they went to Recto at (sic) a business establishment near the Galaxy Theater. He was offered to drink from almost dark until dawn asking him if he had already find (sic) his friend buyer. They parted ways and went home.

On November 15, Manzo and Emil called him up again asking if it was possible to see him which he positively answered. He went to UST somewhere near Mambusco station where he saw Emil with Michael Manzo about 5 meters from Emil standing talking to someone. He asked Emil if he was able to sell the jewelries (sic) and was answered "not yet". Emil was borrowing P700.00 but he has no such amount, so Emil gave him the jewelries (sic) formerly offered to him, the birthstone and watch allegedly as a gift from Michael Manzo. Emil informed him that he and Michael Manzo together with two others were going to Isabela so he gave the P700.00. After they (Emil and his friend) boarded the bus he went home.

On November 21, he was fetched by Emil, brought to a place near the UST along Dapitan Street where he found Michael Manzo retrieving the gift given to him. Because of Manzo’s insistence, he returned them but asked Manzo to sign Exh. "3". They failed to return

his P700.00 so he asked Manzo to sign another documents (sic), Exhs. "4" and "4-A", the original of which was given to the policeman and which was not returned to him.

After several days Pat. Ramirez arrived informing him that Michael Manzo sold him jewelries (sic). Invited (sic) he went to the police at the Hidalgo sub-station 3. Michael Manzo was not immediately investigated but Michael Manzo and Emil were incarcerated. After fifteen (15) minutes from the second floor he was brought to the ground floor inside the cell and detained for several days. He alleged that on the same day he was brought in a room at the second floor where he was mauled by Pat. Ramirez (sic) not convinced with what he said about the paper (Exh. "4"), he gave them then brought back to the cell. He told the police that the jewelries (sic) they are looking for are in the possession of Michael Manzo. He further claimed that Michael Manzo talked to a certain Go and pointed to some other buyers who were brought to the precinct. He, however, did not know if they were released. On November 27 when his wife visited him at 7:00 P.M. she was likewise incarcerated because Michael Manzo pointed to the earrings of his wife.

He further declared that prior to his wife’s arrival, policeman and Michael planned that when his wife arrived, Michael will point to her earrings, allegedly because Emil gave P500.00 to the police officer while planning to include his wife. His wife was then brought to the second floor but did not know what happened, thereafter was incarcerated.

He testified that the earrings of his wife was given by her brother and that the old coin, Exh. "B" is his acquired when he helped, per order of Pat. Nick Golahan, in carrying dead body (sic) when MV Nucnucan sank in Cebu where the son of one he carried gave him coin. The other coin belongs to him which he picked up in Cebu. That the necklace with print Boy Recto on the pendant belongs to him and which was taken at the precinct from the dancer to whom he gave it. Further stating that the same came from Pat. Alex Aguirre when he was still single.

That upon inquest, the Fiscal told the police that they should be released but were not and (sic) brought back to the cell. The following morning they were brought to the City Hall. There again, the Fiscal ordered that they be released but were not and (sic) brought back to the cell once more. On the third time when he was brought to the Fiscal, the latter allegedly told him that San Diego altered the testimony that is why they will be incarcerated.

He denied that Manzo signed Exh. "3" without any writing and pointed to the typewritten statement therein as his relaying that the same was thru Michael’s suggestion at the time when they were already quarreling while accusing Manzo to have stolen the properties subject matter of this case and even questioned that there is something wrongly written, the giving as a gift.

That although they did not know the accused Michael Manzo and did not know of any reason why he pointed to him and his wife as buyers of the jewelries (sic) worth 3 Million Pesos, he believed that it was because of the quarrel when he started accusing Manzo of stealing of which he was being blamed.

He now claims that the he came to know Emilio Benitez only on November 5, the same time he came to know Michael. (tsn, p. 22, Aug. 8, 1994), hence, there is no reason why Benitez

will approach him selling the property. There is no quarrel with the police officers and so he has no knowledge why these people would like to implicate him and his wife. He likewise did not know of any reason why the police officer stated in their affidavit of arrest that the items "US Dollars" were recovered from him at the time of the investigation. He admitted that only one of the coins belongs to him, picked-up from Cebu (Exh. "B-4") and his two (2) LRT coins are still missing so with P20.00 and two more Abraham Lincoln coins. Although he claimed that San Diego did not release them after the Fiscal’s order he did not file any action against San Diego. That on December 1, 1993, the Prosecutor ordered the police to release them and was present asking the Fiscal if he can be allowed to go home but since they did not have any document, the Fiscal said the policemen will take care of them. They did not execute any statement because according to him he was not given any chance.

SPO1 Beinvenido Inot testified that he is a member of the National Police Force of Precinct 1, Olongapo City and that the accused Ferma Capili, wife of Gabriel, is his sister. He was asked by his sister to testify about the pair of earring (sic) that he gave Ferma on June 24, 1990, a U. S. Fancy jewel which was given by her sister from abroad. It has brillantitos which is the same as a base of the glass. The same was confiscated from Ferma by the police.

The last time he saw the pair of earring was on the date his sister celebrated her birthday. Showing all the exhibits of the prosecution to the witness, at first he answered "There are no brillantitos pair of earrings, sir.". And later witness answered: "Ay ito pala." (holding the pair of earrings marked as Exh. "A-1", tsn p. 5, Oct. 14, 1994). He later claimed that the pair of earrings is actually for his wife sent by her sister abroad to Olongapo. He cannot remember having seen Ferma Capili on December 1993 to September 9, 1994, they saw each other two times and that they talked about those jewelries (sic) thru the phone at that time when the accused was apprehended and incarcerated. However, despite the information of Ferma Capili that she was apprehended because of the pair of earrings he did not do anything because allegedly he was too busy and they have operation. He admitted that this is the first time he declared that the earrings came from him without executing any written statement. (Defense marked Exh. "A-1" pair of earring (sic) as their Exh. "8") (Decision, pp. 1-15; Rollo, pp. 31-45)."5

On August 17, 1995, the trial court rendered its decision acquitting Ferma Capili but finding the accused, Gabriel Capili, guilty beyond reasonable doubt of the crime charged the dispositive portion of the decision reads:

"WHEREFORE, finding the prosecution’s evidence to be sufficient to support a conviction beyond moral certainty, for violation of P.D. 1612 in relation to Sec. 3 par. A of the same law which required that the penalty to be imposed shall be in the maximum period if the value of the property is more than P22,000.00, adding one (1) year for its additional P10,000.00, the total penalty of which shall not exceed twenty (20) years, further considering that the consideration of the purchase is P50,000.00, accused Gabriel Capili is hereby found guilty beyond reasonable doubt for violation of said law. Without any mitigating or aggravating circumstances attendant to its commission, but granting the accused with the benefit of the indeterminate sentence law, he is hereby sentenced to suffer eight (8) years and one (1) day to ten (10) years of prision mayor medium and to suffer the additional penalty of three years (one for every P10,000.00) and to further suffer the accessory penalty thereof.

The accused shall be credited with the full extent of his preventive imprisonment in accordance with Art. 29 of the Revised Penal Code.

Since the claim of P3 Million has not been sufficiently proven but the agreed price between the seller and herein accused is only P50,000.00, the accused is hereby directed to indemnify the complainant Christined Diokno the sum of P50,000.00, less the value of the jewelries (sic) presented in Court, Exhibits "A". "B" and "C" and its sub-markings, to be returned to the owner upon proper receipt and photograph.

The bond posted by the accused for his provisional liberty is hereby cancelled.

The body of the accused is hereby committed to the Director of the Bureau of Corrections, National Penitentiary, Muntinlupa, Metro Manila, through the City Warden of Manila.

Considering that there is no evidence to show complicity and/or that Ferma Capili conspired and confederated with her husband Gabriel Capili, she is hereby acquitted from the offense charged in the Information.

The bond posted by the accused for her provisional liberty is hereby cancelled.

SO ORDERED."6

GABRIEL appealed to the Court of Appeals which affirmed the decision of the RTC the dispositive portion of its decision reads:

"WHEREFORE, the decision of the trial court dated August 17, 1995 convicting the appellant for violation of P.D. 1612 is hereby AFFIRMED in toto.

SO ORDERED."7

Motion for reconsideration was denied8 , hence this appeal where the accused assigns the following error:

"THE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT ERRED IN NOT REMANDING THE CASE TO THE COURT A QUO FOR FURTHER PROCEEDINGS DESPITE OF (SIC) THE FAVORABLE RECOMMENDATION OF THE OFFICE OF THE SOLICITOR GENERAL CONSIDERING THAT THE ACTUAL VALUE OF THE FENCED ARTICLES WERE NOT CORRECTLY ESTABLISHED BY THE PROSECUTION."9

The petitioner maintains that even for the sake of argument that the prosecution has established that the petitioner committed the crime of fencing (violation of P.D. 1612) beyond reasonable doubt, there is no legal basis for him to suffer the entire penalty imposed by the trial court. Petitioner claims that the Office of the Solicitor General, in its appellee’s brief filed with the Court of Appeals, agrees that basis of the penalty for the offense of fencing is the value of the property actually involved and not the agreed selling price of the stolen item. The petitioner also maintains that since the prosecution failed to prove the value of the stolen goods, the guilt of the petitioner has not been proved beyond

reasonable doubt. The petitioner therefore prays that the decision of the Court of Appeals be reversed and a new one be issued either acquitting the petitioner or remanding the case to the court a quo for further proceedings.10

The respondent through the Office of the Solicitor General (OSG) counters that on April 25, 1997, it filed a Manifestation/Clarification modifying the recommendation it made in its appellee’s brief to the effect that a remand of the case would unduly delay the disposition of the case. Therefore, to expedite the final resolution of the case, the OSG recommended that as an alternative to a remand that the assessment and findings of the trial court on the value of the subject articles, which is P50,000.00 be adopted and used instead.11 It is therefore the contention of the OSG that there is no merit in the petitioner’s claim that the OSG agreed to the remand of the case for further reception of evidence to determine the value of the stolen goods inasmuch as this would be prejudicial to the rights of the petitioner. The OSG also opines that the petitioner is not entitled to an acquittal since the value of the stolen property is not determinative of the guilt of the accused and is not an element of the crime but is only determinative of the penalty therefor.

The petition is partly meritorious.

Fencing is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.12 The essential elements of the crime of fencing are:

"1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or an accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

4. There is on the part of the accused, intent to gain for himself or for another."13

All these elements are present in the case at bench.

The first element or the fact of theft was proved by prosecution witness, Christine Diokno (DIOKNO) who testified that several pieces of jewelry, watches and money were stolen from her mother’s bedroom. She reported the theft to the police who after conducting an investigation, concluded that her houseboy, Michael Manzo (MANZO), committed the offense. Consequently, a criminal case was filed against MANZO. In her testimony, DIOKNO stated that the major items that were taken consisted of two diamond rings each having a diamond solitaire of three (3) carats each, a pair of diamond earrings each having a diamond solitaire of two point five (2.5) carats, a diamond cross with twelve (12) half (1/2)

carat diamond, her mother’s wedding band, an emerald set consisting of an emerald ring set with diamonds with a pair of matching earrings, a sapphire set consisting of two sapphire rings set with diamonds and matching earrings, a South Sea pearl set consisting of a ring and two pairs of matching earrings also set with diamonds, three cultured pearl necklaces with matching cultured pearl earrings set with diamonds, a topaz set consisting of two rings with diamonds and one with rubies with a set of matching earrings, a cameo set consisting of a ring, matching earrings and a brooch all set with diamonds and four solid gold watches, a Rolex, Piaget, Universal Geneve and a Gabriel Peregaux. She alleged that the total value of the items amounted to approximately three million (P3,000,000.00) pesos. In court, DIOKNO identified some of the recovered stolen items consisting of a set of pearl earrings with two small diamonds (Exhibit "A"), a gold chain with pendant (Exhibit "B") and old United States dollar coins (Exhibit "C").14

DIOKNO’s testimony is corroborated by MANZO, who admitted that he stole the jewelry from DIOKNO. And that after stealing the jewelry, he delivered them to the petitioner, GABRIEL with the information that the jewelry was stolen and for the purpose of selling the same. He identified GABRIEL in court as the person to whom he delivered the stolen jewelry.15 MANZO testified that GABRIEL was not a participant in the theft of the jewelry and that he told GABRIEL that the jewelry was stolen. He also established the fact that the petitioner agreed to pay fifty thousand (P50,000.00) pesos for the stolen jewelry which clearly manifests intent to gain on the part of the petitioner. Consequently, MANZO’s testimony proves the second, third and fourth elements of the crime of fencing.

At any rate, the law does not require proof of purchase of the stolen articles by the accused as mere possession thereof is enough to give rise to a presumption of fencing.16 GABRIEL, who was in possession of at least two of the stolen items, has not rebutted this presumption.

We also disagree with the petitioner that the prosecution failed to prove the value of the stolen items.

Although DIOKNO’s testimony is hearsay and is inadmissible for purposes of determining the value of the stolen items inasmuch as her testimony was not based on her own personal knowledge but on the appraisals made by jewelers and what her mother told her, MANZO’s testimony remains unrebutted. MANZO established that he sold the stolen items to GABRIEL for P50,000.00 and in the absence of any evidence to the contrary, said amount is presumed to be the value thereof as it is the only value established by the prosecution. Besides, the valuation of the stolen items made by the trial court is a factual issue and factual findings of the trial court especially when affirmed by the Court of Appeals are entitled to great weight and generally should not be disturbed on appeal.17

We note however that the trial court was mistaken in imposing the penalty. A person found guilty of fencing property the value of which exceeds P22,000.00 is punished under Presidential Decree 1612 as follows:

"Sec. 3. Penalties – Any person guilty of fencing shall be punished as hereunder indicated:

a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided for in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos, but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed."

Under the Indeterminate Sentence Law18 , the court shall sentence an accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed and the minimum of which shall be within the range of the penalty next lower to that prescribed for the offense; and if the offense is punished by any other law, the court shall sentence an accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.19

Applying the foregoing, the petitioner should be sentenced to suffer the penalty of prision mayor maximum. The fact that the value of the fenced items exceeds P22,000.00 should not, like in cases of estafa, be considered in the initial determination of the indeterminate penalty.20 In the absence of mitigating and aggravating circumstances, this should be imposed in its medium period which ranges from ten (10) years, eight (8) months and one (1) day to eleven (11) years and four (4) months. Adding the additional two (2) year sentence, one for each P10,000.00 in excess of P22,000.00, the maximum of the indeterminate penalty is anywhere within ten (10) years, eight (8) months and one (1) day of prision mayor to thirteen (13) years and four (4) months of reclusion temporal21 . On the other hand, the minimum of the indeterminate sentence should be anywhere within the range of the penalty next lower which is prision correcional maximum22 which ranges from four (4) years, two (2) months and one (1) day to six (6) years.

WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals finding the petitioner, Gabriel Capili guilty beyond reasonable doubt of violating Presidential Decree 1612 otherwise known as the Anti-fencing law is AFFIRMED with the MODIFICATION that the petitioner is hereby sentenced to suffer an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correcional as minimum to thirteen (13) years and four (4) months of reclusion temporal as maximum.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 146584             July 12, 2004

ERNESTO FRANCISCO y SPENOCILLA, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal via a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision2 of the Regional Trial Court of Malolos, Bulacan, Branch 22, finding petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1) day of prision mayor maximum, as minimum, to twenty (20) years of reclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter, and to pay the corresponding value of the subject pieces of jewelry.

The Indictment

The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23, 1993, the accusatory portion of which reads:

That in or about the month of November 1991, in the municipality of Meycauayan, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto Francisco y Spenocilla, with intent to gain for himself, did then and there wil[l]fully, unlawfully and feloniously buy, receive, possess and acquire from one Pacita Linghon y Liza, not the owner, several pieces of jewelry, to wit:

One (1) pair of earrings (Heart Shape) --- P 400,000.00

One (1) White Gold Bracelet ---- 150,000.00

One (1) Diamond Ring ---- 100,000.00

One (1) Ring with Diamond ---- 5,000.00

with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

Contrary to law.3

The petitioner was arraigned, with the assistance of counsel, and entered a plea of not guilty. Trial forthwith ensued.

The Case for the Prosecution

Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal.4 She was engaged in business as a general contractor under the business name J.C. Rodriguez Contractors. Macario Linghon was one of her workers. She and her husband, the former Municipal Mayor of Rodriguez, Rizal, acquired several pieces of jewelry which were placed inside a locked cabinet in a locked room in their main house. Jovita hid the key to the cabinet inside the room. The couple and their son resided inside a compound. They hired Pacita Linghon, Macario’s sister, as one of their household helpers us sometime in February 1989.5 Pacita swept and cleaned the room periodically. Sometime in May 1991, she left the employ of the Rodriguez family.

Sometime in the third week of October 1991, Pacita contacted her brother Macario, who resided in Sitio Baloongan, Barangay Paltok, Meycauayan, Bulacan,6 and asked him to sell some pieces of jewelry. She told Macario that a friend of hers owned the jewelry.7 Macario agreed. He then went to the shop of petitioner Ernesto "Erning" Francisco located at Pacheco Street, Calvario, Meycauayan, Bulacan,8 which had a poster outside that said, "We buy gold." Macario entered the shop, while Pacita stayed outside. Macario offered to sell to Ernesto two rings and one bracelet. Ernesto agreed to buy the jewelry for P25,000, and paid the amount to Macario. He also gave Macario P300 as a tip.9

Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of earrings. He agreed. He and a friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of earrings for P18,000. The latter agreed and paid Macario the amount. Ernesto gave a P200 tip to Macario. After these transactions, Macario saw the petitioner in his shop for about five to six more times and received some amounts.11

Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She was shocked when she opened the locked cabinet containing her jewelry, and found that the box was empty. She noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing were one pair of diamond heart-shaped earrings worth P400,000; one heart-shaped diamond ring worth P100,000; one white gold bracelet with diamond stones worth P150,000; and one ring with a small diamond stone worth P5,000. She suspected that it was Pacita who stole her jewelry. She was, however, occupied with her business ventures that she had little time to gather evidence and charge Pacita.

On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother Adoracion Linghon with the Counter-Intelligence Group of the Philippine National Police in Camp Crame, Quezon City. She stated that she owned several jewels, viz: one (1) heart-shaped pair of earrings with diamond worth P400,000; one (1) heart-shaped ring with diamond worth P100,000; one (1) white gold bracelet with diamond stones worth P150,000; and, one (1) ring with a small diamond stone worth P5,000. She also averred that Pacita had stolen the pieces of jewelry, and that she and her mother Adoracion disposed of the same.

A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence Group, invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in connection with Jovita’s complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement pointing to the petitioner as the person to whom she sold Jovita’s jewelry. On August 23, 1992, Pacita gave a sworn statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped earrings with diamond, one white gold bracelet, one heart-shaped diamond ring, and one ring "with big and small stones" to "Mang Erning" of Meycauayan, Bulacan, for the total price of P50,000 to cover the cost of her father’s operation and for food. When asked about the full name of the person to whom the jewelry was sold, Pacita replied that she knew him only as "Mang Erning."

Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and PO1 Roldan, Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the "Mang Erning" who had purchased the jewelry from her. The policemen alighted from their vehicle and invited the petitioner for questioning in Camp Crame. Upon his insistence, the petitioner was brought to the police station of Meycauayan, Bulacan. When they were at the police station, the petitioner, in the presence of SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe, for them not to implicate him in the case. PO1 Roldan, Jr. rejected the offer.12 They again invited the petitioner to go with them to Camp Crame, but the petitioner refused and demanded that the policemen first secure a warrant for his arrest should they insist on taking him with them.13

Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal, Branch 76.14 The case was docketed as Criminal Case No. 2005. Adoracion was also charged with violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were consolidated and jointly tried.

Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring him that he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against the petitioner.

PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation.

On September 1, 1992, Jovita executed a sworn statement in the office of the police station of Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.15 A criminal complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the preliminary investigation, Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to the petitioner for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she found the jewelry belonging to Jovita while she was cleaning the room in the house, and that she brought the jewelry home.16 The court found probable cause against the petitioner, and issued a warrant for his arrest.

On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC charging the petitioner with violating P.D. No. 1612.

In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and

Adoracion guilty of fencing under P.D. No. 1612, beyond reasonable doubt. The decretal portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in these cases, as follows:

1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable doubt of the crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the Revised Penal Code, and sentencing her to suffer the indeterminate sentence of Nine (9) years and Four (4) months of prision mayor as minimum to Eighteen (18) years, Two (2) months and Twenty (20) days of reclusion temporal as maximum, to return to complainant Jovita Rodriguez the unrecovered stolen pieces of jewelry subject of this case and if restitution is not possible, to indemnify the said complainant in the amount ofP1,300,000.00; and to pay the costs.

2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond reasonable doubt of the offense of violation of PD 1612, otherwise known as the Anti-Fencing Law, and sentencing her to suffer imprisonment of Twelve (12) years of prision mayor; to indemnify complainant Jovita Rodriguez in the amount of P45,000.00; and to pay the costs.

SO ORDERED.17

The Case for the Petitioner

The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a shop located at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold jewelry. He had been in this business since 1980.18 He did not transact with Pacita regarding Jovita’s missing jewels.19 In fact, he did not even know Jovita and met her only during the preliminary investigation of the case before the MTC of Meycauayan, Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he first saw her when she accompanied some policemen in civilian clothes to his shop, where he was thereafter invited to Camp Crame for investigation.20 He saw Pacita again only during the preliminary investigation of the case.21 The petitioner also averred that he had no transaction with Macario of whatever nature.22

The petitioner further testified that when the policemen in civilian clothes approached him in his shop, they asked who "Mang Erning" was, as the sign in his shop carried such name. When he responded to the question, the policemen identified themselves as members of the police force. The petitioner then gave them his full name.23When the policemen invited him for questioning, he refused at first. Eventually, he agreed to be interrogated at the municipal hall, where the policemen insisted on bringing him to Camp Crame. He told them that he would go with them only if they had a warrant of arrest.24 He denied ever offering any bribe to the policemen.25

On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond reasonable doubt of violating P.D. No. 1612. The decretal portion of the decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612 (Anti-Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1 day of prision mayormaximum, as minimum, to 20 years of reclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter.

2. Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding value of the subject items of jewelries (sic):

one (1) pair of earrings, heart shaped

P400,000.00

one (1) white gold bracelet 150,000.00

one (1) diamond ring 100,000.00

one (1) ring with diamond 5,000.00

TOTAL VALUE P655,000.00

with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said amounts have been fully paid.

SO ORDERED.26

The petitioner appealed the decision to the Court of Appeals contending that:

I

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.

II

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

III

THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic) OF PROSECUTION WITNESSES.

IV

THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-APPELLANT’S OFFER OF BRIBE WITHOUT SHOW OF MONEY.

V

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.27

On December 29, 2000, the CA rendered judgment affirming the decision of the RTC.28

The Present Petition

In the present recourse, petitioner Ernesto Francisco asserts that:

The Court of Appeals erred in sustaining the trial court’s decision finding petitioner guilty beyond reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law.

The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses, all of which consisted of hearsay evidence.29

The petitioner asserts that the prosecution failed to prove his guilt for the crime charged beyond reasonable doubt. He avers that the prosecution failed to prove that Pacita stole the jewelry subject of the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits that the prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry and sold the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends that the testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovita’s complaint for theft, are hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry to him, Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers that the testimony of Macario, the principal witness of the prosecution, is inconsistent on substantial matters; hence, should not be given credence and probative weight.

On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution was able to prove all the elements of the crime charged. It asserts that the first element was proved through Pacita’s conviction for theft in Criminal Case No. 2005; the second element was shown to exist with moral certainty via the testimony of Macario identifying the petitioner as the one who bought the subject pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third element was proven by evidence showing that the petitioner had been in the business of buying and selling jewelry for a long period of time, and that he had the expertise to know the correct market price of the jewelry he purchased from Macario and Pacita. The OSG asserts that the petitioner must have been put on his guard when the subject pieces of jewelry worth P655,000 were sold to him for only P50,000.30 It contends that the inconsistencies in the testimonies of the prosecution witnesses referred to by the petitioner were minor, and could not be made as a basis to disregard the trial court’s findings of facts, which are entitled to great respect and credit.31

The Ruling of the Court

The petition is meritorious.

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been committed; (2) the accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have shown that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and, (4) there is, on the part of the accused, intent to gain for himself or for another.32 Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property.33 The stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing.

We agree with the trial and appellate courts that the prosecution mustered the requisite quantum of evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry from the locked cabinet in the main house of her then employer. Jovita testified on her ownership of the jewelry and the loss thereof, and narrated that Pacita had access to the cabinet containing the pieces of jewelry.

We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in Criminal Case No. 2005 convicting Pacita of theft does not constitute proof against him in this case, that Pacita had, indeed, stolen the jewelry. There is no showing that the said decision in Criminal Case No. 2005 was already final and executory when the trial court rendered its decision in the instant case.

On the second element of the crime, the trial and appellate courts held that the prosecution proved the same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005; that Pacita had confessed to Jovita that she sold some of the jewelry to the petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision in Criminal Cases Nos. 1992 and 2005; the testimonies of Pacita and her brother Macario during the preliminary investigation of Criminal Case No. 92-13841 before the MTC of Meycauayan as shown by the transcripts of the stenographic notes taken during the proceedings; the supplemental sworn statement of Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario before the trial court.

However, we find and so hold that –

First. Jovita’s testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her that she had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter to prove the truth of the said admission. It bears stressing that the petitioner was not a party in the said criminal cases. The well-entrenched rule is that only

parties to a case are bound by a judgment of the trial court. Strangers to a case are not bound by the judgment of said case.34 Jovita did not reiterate her testimony in the said criminal cases during the trial in the court a quo. The prosecution did not present Pacita as witness therein to testify on the admission she purportedly made to Jovita; hence, the petitioner was not able to cross-examine Pacita. The rule is that the acts or declarations of a person are not admissible in evidence against a third party.35

Second. The testimony of Pacita during the preliminary investigation in Criminal Case No. 92-13841, as well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did not testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront and cross-examine a witness against him.

Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner, while the latter was having a drinking spree, as the person who bought the subject jewelry from her, is indeed admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony of Macario. However, such testimony is admissible only to prove such fact - that Pacita pointed to the petitioner as the person to whom she sold the subject jewelry; it is inadmissible to prove the truth of Pacita’s declaration to the policemen, that the petitioner was the one who purchased the jewelry from her. It must be stressed that the policemen had no personal knowledge of the said sale, and, more importantly, Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his right to cross-examine Pacita on the truth of what she told the policemen.

Fourth. On the other hand, the testimony of Macario during the preliminary investigation of Criminal Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the prosecution and was cross-examined on his testimony during the preliminary investigation.

In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the testimony of Macario during the preliminary investigation and trial in the court a quo.

Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to anchor a judgment of conviction, it is required that such testimony must be credible and reliable.36 In this case, we find the testimony of Macario to be dubious; hence, barren of probative weight.

Macario admitted when he testified in the court a quo that his testimony during the preliminary investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were inconsistent. He even admitted that some portions of his testimony on direct examination in the court a quo were inconsistent with his testimony on cross-examination and on re-direct examination. These admissions are buttressed by the records of the case, which show that such inconsistencies pertained to material points and not merely to minor matters. Thus, during the preliminary investigation in Criminal Case No. 92-13841, Macario admitted that on October 10, 1991, he and his sister Pacita sold two rings and one bracelet to the petitioner for P25,000, while in November 1991, he and Pacita sold a pair of earrings to the petitioner for P25,000. On direct examination in the court a quo, Macario testified that

he and Pacita sold the earrings to the petitioner in May 1992, not in November 1991, and only for P18,000. On cross-examination, Macario testified that he and his sister Pacita went to the petitioner’s shop in Meycauayan, Bulacan and sold the subject jewelry on both occasions. On further cross-examination, Macario changed his testimony anew, and declared that he sold the jewelry to the petitioner for P18,000 and not P25,000; only to change his testimony again, and declare that he sold the jewelry for P25,000. However, Macario testified during the preliminary investigation in Criminal Case No. 92-13841 that when he transacted with the petitioner for the second time, he was with a friend, and not with his sister Pacita. On redirect examination, Macario declared that in October 1991, he and Pacita sold four (4) pieces of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on direct examination. He also testified that he and his sister sold the earrings in November 1991. Because of the contradicting accounts made by Macario, the court made the following observations:

Court

q According to you, you were "nalilito" but you gave the correct answer, you are not "nalilito" here but you gave the wrong answer. Bakit ganoon, sabi mo nalilito ka roon (sic) pero ang sagot mo pala tama. Dito hindi ka naman nalilito, bakit mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang sabi mo.

a Because I am scare[d] here that’s why I gave the wrong answer.

q You better think about it.

a I was confused, Sir.37

The testimonies of Macario are even contrary to the averments of the Information, that the petitioner received the said jewelry from Pacita.

Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is no evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did not know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the jewelry to the petitioner that they belonged to a friend of hers.

Atty. Lerio

Q At that time you and your sister sold those jewels to "Mang Erning" did … do you know already [that] it was Mrs. Rodriguez who is the owner of those jewels?

A No, Sir, I do not know.

Q And who do you know was the owner of that jewels and that time you and your sister sold those jewels to "Mang Erning"?

A According to my sister, it is (sic) owned by a friend of hers.

Court

Q How did you come to know of this "Mang Erning?"

A Only at that time when we brought the jewels.

Q But previous to that, do you know him?

A No.38

Macario learned, after the case against Pacita had already been filed in the trial court, that the jewelry was, after all, owned by Jovita. However, he failed to inform the petitioner that the said jewelry was stolen. Following is the testimony of Macario:

Atty. Lerio

Q When you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all, informed (sic) "Mang Erning" about it?

Court

Q No basis, when did you come to know that the jewels belong to Mrs. Rodriguez?

A In 1992, when my sister already had a case.

Q What did you do when you come (sic) to know about that?

A I was not able to do anything but just to help my sister with her case and also to help the case of Mrs. Rodriguez.

Atty. Lerio

Q After that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was there any occasion where you (sic) able to inform "Mang Erning" that those jewels were owned by Mrs. Rodriguez?

A No more, I have no more time.39

The prosecution cannot even validly argue that the petitioner should have known which pieces of jewelry were stolen, considering that Macario was selling the same for P50,000 when the said pieces stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution failed to adduce sufficient competent evidence to prove the value of the said stolen articles. The prosecution relied solely on the bare and uncorroborated testimony of Jovita, that they were worth P655,000:

Atty. Lerio

Q Now, will you tell this Court some of those jewels which you own?

A I own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-shapedP400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-bracelet, white gold full of stones, diamond worth P150,000.00; 1-diamond ring with small stones worth P5,000.00. So, all in all, the jewelry is (sic) worth P665,000.00.40

When asked by the trial court to declare the present market value of the stolen jewelry, Jovita merely declared:

Atty. Lerio

Q Now again, when did you acquire those jewels if you can still remember?

A I remember several years ago when my husband is (sic) alive.

Court

Q Please tell the court, [is] the market value of the jewels the same today?

A No, that is (sic) the market value several years ago.

Q So, can you explain [if] the market value, more or less, [is] the same today?

A No. The price, if we will appraise now, is much bigger.41

When required by the petitioner, through counsel, to bring to the court any receipts reflecting the price of the pieces of jewelry to show that she purchased the same, Jovita answered that she had no such receipts. Thus:

Court

Q You bought it from [a] private person?

A Yes, Your Honor.

Atty. Bernal

Q What then is your proof that you bought these jewelries (sic) from a private person?

Atty. Lerio

That was already answered, Your Honor. She said, no receipt.42

In People v. Paraiso,43 we cited our ruling in People v. Marcos44 that an ordinary witness cannot establish the value of jewelry, nor may the courts take judicial notice of the value of the same:

…[A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness cannot establish the value of jewelry and the trial court can only take judicial notice of the value of goods which are matters of public knowledge or are capable of unquestionable demonstration. The value of jewelry is not a matter of public knowledge nor is it capable of unquestionable demonstration and in the absence of receipts or any other competent evidence besides the self-serving valuation made by the prosecution, we cannot award the reparation for the stolen jewelry.45

It bears stressing that, in the absence of direct evidence that the accused had knowledge that the jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can be concluded that the accused should have known that the property sold to him were stolen. This requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and, (b) to enable the trial court to determine the imposable penalty for the crime, since the penalty depends on the value of the property; otherwise, the court will fix the value of the property at P5.00, conformably to our ruling in People v. Dator:46

In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of the bag and its contents at P100.00 based on the attendant circumstances of the case. More pertinently, in the case of People vs. Reyes, this Court held that if there is no available evidence to prove the value of the stolen property or that the prosecution failed to prove it, the corresponding penalty to be imposed on the accused-appellant should be the minimum penalty corresponding to theft involving the value of P5.00.47

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of violating P.D. No. 1612 for the prosecution’s failure to prove his guilt beyond reasonable doubt.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 190475               April 10, 2013

JAIME ONG y ONG, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

SERENO, CJ.:

Before the Court is an appeal from the Decision1 dated 18 August 2009 of the Court of Appeals (CA), which affirmed the Decision2 dated 06 January 2006 of the Regional Trial Court (RTC), Branch 37, Manila. The RTC had convicted accused Jaime Ong y Ong (Ong) of the crime of violation of Presidential Decree No. (P.O.) 1612, otherwise known as. the Anti-Fencing Law.

Ong was charged in an Information3 dated 25 May 1995 as follows:

That on or about February 17, 1995, in the City of Manila, Philippines. the said accused, with intent of gain for himself or for another. did then and there willfully, unlawfully and feloniously receive and acquire from unknown person involving thirteen (13) truck tires worth P65, 975.00, belonging to FRANCISCO AZAJAR Y LEE, and thereafter selling One (1) truck tire knowing the same to have been derived from the crime of robbery.

CONTRARY TO LAW.

Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits ensued, and the RTC found him guilty beyond reasonable doubt of violation of P.D. 1612. The dispositive portion of its Decision reads:

WHEREFORE, premises considered, this Court finds that the prosecution has established the guilt of the accused JAIME ONG y ONG beyond reasonable doubt for violation of Presidential Decree No. 1612 also known as Anti-Fencing Law and is hereby sentenced to suffer the penalty of imprisonment of 10 years and 1 day to 16 years with accessory penalty of temporary disqualification.

SO ORDERED.4

Dissatisfied with the judgment, Ong appealed to the CA. After a review of the records, the RTC’s finding of guilt was affirmed by the appellate court in a Decision dated 18 August 2009.

Ong then filed the instant appeal before this Court.

The Facts

The version of the prosecution, which was supported by the CA, is as follows:

Private complainant was the owner of forty-four (44) Firestone truck tires, described as T494 1100 by 20 by 14. He acquired the same for the total amount of P223,401.81 from Philtread Tire and Rubber Corporation, a domestic corporation engaged in the manufacturing and marketing of Firestone tires. Private complainant's acquisition was evidenced by Sales Invoice No. 4565 dated November 10, 1994 and an Inventory List acknowledging receipt of the tires specifically described by their serial numbers. Private complainant marked the tires using a piece of chalk before storing them inside the warehouse in 720 San Jose St., corner Sta. Catalina St., Barangay San Antonio Valley 1, Sucat, Parañaque, owned by his relative Teody Guano. Jose Cabal, Guano's caretaker of

the warehouse, was in charge of the tires. After appellant sold six (6) tires sometime in January 1995, thirty-eight (38) tires remained inside the warehouse.

On February 17, 1995, private complainant learned from caretaker Jose Cabal that all thirty-eight (38) truck tires were stolen from the warehouse, the gate of which was forcibly opened. Private complainant, together with caretaker Cabal, reported the robbery to the Southern Police District at Fort Bonifacio.

Pending the police investigation, private complainant canvassed from numerous business establishments in an attempt to locate the stolen tires. On February 24, 1995, private complainant chanced upon Jong's Marketing, a store selling tires in Paco, Manila, owned and operated by appellant. Private complainant inquired if appellant was selling any Model T494 1100 by 20 by 14 ply Firestone tires, to which the latter replied in the affirmative. Appellant brought out a tire fitting the description, which private complainant recognized as one of the tires stolen from his warehouse, based on the chalk marking and the serial number thereon. Private complainant asked appellant if he had any more of such tires in stock, which was again answered in the affirmative. Private complainant then left the store and reported the matter to Chief Inspector Mariano Fegarido of the Southern Police District.

On February 27, 1995, the Southern Police District formed a team to conduct a buy-bust operation on appellant's store in Paco, Manila. The team was composed of six (6) members, led by SPO3 Oscar Guerrero and supervised by Senior Inspector Noel Tan. Private complainant's companion Tito Atienza was appointed as the poseur-buyer.

On that same day of February 27, 1995, the buy-bust team, in coordination with the Western Police District, proceeded to appellant's store in Paco, Manila. The team arrived thereat at around 3:00 in the afternoon. Poseur-buyer Tito Atienza proceeded to the store while the rest of the team posted themselves across the street. Atienza asked appellant if he had any T494 1100 by 20 by 14 Firestone truck tires available. The latter immediately produced one tire from his display, which Atienza bought for P5,000.00. Atienza asked appellant if he had any more in stock.

Appellant then instructed his helpers to bring out twelve (12) more tires from his warehouse, which was located beside his store. After the twelve (12) truck tires were brought in, private complainant entered the store, inspected them and found that they were the same tires which were stolen from him, based on their serial numbers. Private complainant then gave the prearranged signal to the buy-bust team confirming that the tires in appellant's shop were the same tires stolen from the warehouse.

After seeing private complainant give the pre-arranged signal, the buy-bust team went inside appellant's store. However, appellant insisted that his arrest and the confiscation of the stolen truck tires be witnessed by representatives from the barangay and his own lawyer. Resultantly, it was already past 10:00 in the evening when appellant, together with the tires, was brought to the police station for investigation and inventory. Overall, the buy-bust team was able to confiscate thirteen (13) tires, including the one initially bought by poseur-buyer Tito Atienza. The tires were confirmed by private complainant as stolen from his warehouse.5

For his part, accused Ong solely testified in his defense, alleging that he had been engaged in the business of buying and selling tires for twenty-four (24) years and denying that he had any knowledge that he was selling stolen tires in Jong Marketing. He further averred that on 18 February 1995, a certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck tires allegedly from Dagat-dagatan, Caloocan City, for P3,500 each. Ong bought all the tires for P45,500, for which he was issued a Sales Invoice dated 18 February 1995 and with the letterhead Gold Link Hardware & General Merchandise (Gold Link).6

Ong displayed one (1) of the tires in his store and kept all the twelve (12) others in his bodega. The poseur-buyer bought the displayed tire in his store and came back to ask for more tires. Ten minutes later, policemen went inside the store, confiscated the tires, arrested Ong and told him that those items were stolen tires.7

The RTC found that the prosecution had sufficiently established that all thirteen (13) tires found in the possession of Ong constituted a prima facie evidence of fencing. Having failed to overcome the presumption by mere denials, he was found guilty beyond reasonable doubt of violation of P.D. 1612.8

On appeal, the CA affirmed the RTC’s findings with modification by reducing the minimum penalty from ten (10) years and one (1) day to six (6) years of prision correcional.9

OUR RULING

The Petition has no merit.

Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been committed; (2) the accused, who is not a principal or on accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4) there is, on the part of one accused, intent to gain for oneself or for another.10

We agree with the RTC and the CA that the prosecution has met the requisite quantum of evidence in proving that all the elements of fencing are present in this case.

First, the owner of the tires, private complainant Francisco Azajar (Azajar), whose testimony was corroborated by Jose Cabal - the caretaker of the warehouse where the thirty-eight (38) tires were stolen – testified that the crime of robbery had been committed on 17 February 1995. Azajar was able to prove ownership of the tires through Sales Invoice No. 456511 dated 10 November 1994 and an Inventory List.12 Witnesses for the prosecution

likewise testified that robbery was reported as evidenced by their Sinumpaang Salaysay13 taken at the Southern Police District at Fort Bonifacio.14 The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila on 27 February 1995.

Second, although there was no evidence to link Ong as the perpetrator of the robbery, he never denied the fact that thirteen (13) tires of Azajar were caught in his possession. The facts do not establish that Ong was neither a principal nor an accomplice in the crime of robbery, but thirteen (13) out of thirty-eight (38) missing tires were found in his possession. This Court finds that the serial numbers of stolen tires corresponds to those found in Ong’s possession.15 Ong likewise admitted that he bought the said tires from Go of Gold Link in the total amount of ₱45,500 where he was issued Sales Invoice No. 980.16

Third, the accused knew or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft. The words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists.17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24) years,18 ought to have known the ordinary course of business in purchasing from an unknown seller. Admittedly, Go approached Ong and offered to sell the thirteen (13) tires and he did not even ask for proof of ownership of the tires.19 The entire transaction, from the proposal to buy until the delivery of tires happened in just one day.20 His experience from the business should have given him doubt as to the legitimate ownership of the tires considering that it was his first time to transact with Go and the manner it was sold is as if Go was just peddling the thirteen (13) tires in the streets.

In Dela Torre v. COMELEC,21 this Court had enunciated that:

Circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, . . ., object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing" — a presumption that is, according to the Court, "reasonable for no other natural or logical inference can arise from the established fact of . . . possession of the proceeds of the crime of robbery or theft." xxx.22

Moreover, Ong knew the requirement of the law in selling second hand tires. 1âwphi1 Section 6 of P.D. 1612 requires stores, establishments or entities dealing in the buying and selling of any good, article, item, object or anything else of value obtained from an unlicensed dealer or supplier thereof to secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where that store, establishment or entity is located before offering the item for sale to the public. In fact, Ong has practiced the procedure of obtaining clearances from the police station for some used tires he wanted to resell but, in this particular transaction, he was remiss in his duty as a diligent businessman who should have exercised prudence.

In his defense, Ong argued that he relied on the receipt issued to him by Go. 1âwphi1 Logically, and for all practical purposes, the issuance of a sales invoice or receipt is proof of a legitimate transaction and may be raised as a defense in the charge of fencing; however, that defense is disputable.23 In this case, the validity of the issuance of the receipt was disputed, and the prosecution was able to prove that Gold Link and its address were fictitious.24 Ong failed to overcome the evidence presented by the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the prima facie presumption under Section 5 of P.D. 1612.

Finally, there was evident intent to gain for himself, considering that during the buy-bust operation, Ong was actually caught selling the stolen tires in his store, Jong Marketing.

Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the 25 property.

The RTC and the CA correctly computed the imposable penalty based on P5,075 for each tire recovered, or in the total amount of P65,975. Records show that Azajar had purchased forty-four (44) tires from Philtread in the total amount of P223,40 1.81.26 Section 3 (p) of Rule 131 of the Revised Rules of Court provides a disputable presumption that private transactions have been fair and regular. Thus, the presumption of regularity in the ordinary course of business is not overturned in the absence of the evidence challenging the regularity of the transaction between Azajar ,and Phil tread.

In tine, after a careful perusal of the records and the evidence adduced by the parties, we do not find sufficient basis to reverse the ruling of the CA affirming the trial court's conviction of Ong for violation of P.D. 1612 and modifying the minimum penalty imposed by reducing it to six ( 6) years of prision correccional.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 30213 is hereby AFFIRMED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

 

G.R. No. 77368 October 5, 1993

THE PEOPLE OF THE PHILIPPINES, petitioner, vs.

HON. JOSE C. DE GUZMAN, PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 93, AND SPOUSES DANILO A. ALCANTARA AND ISABELITA ESGUERRA-ALCANTARA, respondents.

The Solicitor General for petitioner.

 

VITUG, J.:

Is the crime of "fencing" a continuing offense that could allow the filing of an information therefor in the place where the robbery or theft is committed and not necessarily where the property, unlawfully taken is found to have later been acquired?

The above query is the sole issue in this Petition for certiorari and mandamus filed by the People of the Philippines, praying for the reversal, annulment and setting aside of the Order of 28 February 1986 1 of the respondent Judge, who has ruled in the negative, as well as his Order, dated 21 March 1986, 2 denying the motion for reconsideration. The petitioner prays that the respondent Judge be directed to assume jurisdiction over, and to proceed with the trial of, the criminal case.

On 09 September 1985, robbery was committed in Quezon City in the house of Jose L. Obillos, Sr., where various pieces of precious jewelry alleged to be worth millions of pesos were taken. An information, dated 30 September 1985, was instituted against the perpetrators in the Regional Trial Court of Quezon City, Branch 101, docketed thereat asCriminal Case No. G.R. No. 42078. 3

Subsequently, an information, dated 22 October 1985, for violation of Presidential Decree No. 1612, otherwise known as the "Anti-Fencing Law," was also filed with the Regional Trial Court of Quezon City, Branch 93, docketed as Criminal Case No. 42433, against herein respondent spouses Danilo A. Alcantara and Isabelita Esguerra-Alcantara, from whose possession the jewelries stolen were recovered in Antipolo, Rizal.  4

The trial court, acting on the motion to quash filed by the accused [now private respondents], issued the now questioned order of 28 February 1986, viz:

Before the Court is a Motion to Quash, filed by the accused thru counsel, praying that the information filed against both accused be quashed, on the ground that the Court has no jurisdiction to try the offense charged. Among others, the motion alleges, that as per police investigation, the crime took place in Antipolo, Rizal. For this reason, Violation of Presidential Decree No. 1612 is an independent crime, separate and distinct from that of Robbery. The accused claims, likewise, that jurisdiction to try the same is with the Court within which territorial jurisdiction, the alleged fencing took place.

The Prosecution filed an opposition thereto, alleging among others, that there is nothing in the law which prohibits the filing of a case of fencing in the court under whose jurisdiction the principal offense of robbery was committed. The prosecution claims further, that the consideration in the enactment of PD

1612 was to impose a heavier penalty on persons who profit by the effects of the crimes robbery or theft.

On this point, we should not lose sight of the fact that in all criminal prosecutions, the action shall be instituted and tried in the court of the Municipality or Province wherein the offense was committed, or anyone of the essential ingredients thereof took place. 5

Since the alleged act of fencing took place in Antipolo, Rizal, outside the territorial jurisdiction of this Court, and considering that all criminal prosecutions must be instituted and tried in the Municipality or Province where the offense took place, this Court, necessarily, does not have jurisdiction over the instant case.

Wherefore, the above-entitled case is hereby QUASHED, without prejudice to the filing of the corresponding action against the accused in the Court having proper jurisdiction.

The private prosecutor's motion for reconsideration was denied in the court's order of 21 March 1986.

Hence, the instant petition.

The Solicitor General argues that since an essential element of the crime of fencing is the commission of robbery, in this case committed in Quezon City, the information therefor filed in said City accords with the provisions of Rule 110 of the 1985 Rules on Criminal Procedure, and the refusal of the Court a quo to assume and exercise jurisdiction thereover constitutes a serious error of law and a grave abuse of discretion. He theorizes that fencing is a "continuing offense." He explains that the Anti-Fencing Law has been enacted for the purpose of imposing a heavier penalty on persons who profit from the effects of the crime of robbery or theft, no longer merely as accessories under Article 19, paragraph 1, of the Revised Penal Code, but as equally guilty with the perpetrators of the robbery or theft itself.

In People vs. Ledesma, 6 we said:

. . . A "continuous crime" is a single crime consisting of a series ofacts arising from a single criminal resolution or intent not susceptible of division. According to Cuello Calon, when the actor, there being unity of purpose and of right violated, commits diverse acts each of which, although of a delictual character merely constitutes a partial execution of a single particular delict, such concurrence of delictual acts is called a "delito continuado." For it to exist there should be plurality of acts performed separately during a period of time; unity of penal provision infringed upon or violated; unity of criminal intent or purpose, which means that two or more violations of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim.

Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon

anything. 7 "Fencing", upon the other hand, is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.  8

The crimes of robbery and fencing are clearly then two distinct offenses. The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. True, the object property in fencing must have been previously taken by means of either robbery or theft but the place where the robbery or theft occurs is inconsequential. It may not be suggested, for instance, that, in the crime of bigamy which presupposes a prior subsisting marriage of an accused, the case should thereby be triable likewise at the place where the prior marriage has been contracted.  9

We are not unaware of a number of instances 10 when the Court would allow a change of venue in criminal cases "whenever the interest of justice and truth so demand, and there are serious and weighty reasons to believe that a trial by the court that originally had jurisdiction over the case would not result in a fair and impartial trial and lead to a miscarriage of justice." 11 Here, however, we do not see the attendance of such compelling circumstances, nor are we prepared to state that the lower court gravely abused its discretion in its questioned orders.

WHEREFORE, the instant petition for certiorari and mandamus is DISMISSED, and the orders appealed from are hereby AFFIRMED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 128369 December 22, 1997

RODOLFO CAOILI, petitioner, vs.THE HONORABLE COURT OF APPEALS and HONORABLE RUSTICO V. PANGANIBAN, Presiding Judge of the Regional Trial Court of Manila, Branch 51, respondents.

RESOLUTION

 

VITUG, J.:

Petitioner Rodolfo Caoili seeks a reconsideration of the Court's 18th June 1997 resolution dismissing his petition for review on certiorari. The petition assails the resolution, dated 14 January 1997, of the Court of Appeals finding no grave abuse of discretion on the part of the trial court in refusing to exclude petitioner from a pending criminal case and to correspondingly amend the information theretofore filed with it.

The instant controversy, as well as the antecedent circumstances leading to the petition, could be said to have started when, in an Information filed on 15 March 1995 with the Regional Trial Court ("RTC")of Manila, Branch 51 (Criminal Case No. 95141750), petitioner, Rodolfo "Rudy" Caoili, was charged, along with a certain Tony Yip, with violation of Presidential Decree ("P.D.") No. 1612. On 24 March 1995, petitioner sought a review by the Secretary of Justice of the resolution, dated 16 February 1995, of Assistant Prosecutor Antonio R. Rebagay that had found a prima facie case against petitioner that served as the basis for the information. In his ruling, dated 18 August 1995, the Secretary of Justice directed the exclusion of petitioner Rodolfo Caoili from the Information. The Secretary opined:

The only issue posed in the petition is whether or not there is sufficient evidence to indict Caoili. To be liable for violation of P.D. 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should be known to him to have been derived from the proceeds of the crime of robbery or theft. The allegations of Atule and Azuela do not indicate that respondent Caoili acquired the skiving machines in question knowing that the same were stolen property. The prima facie presumption of fencing from possession of stolen property does not apply to Caoili as complainant reacquired the subject skiving machines not from respondent Caoili but from Yip. It is difficult to give credence to the claim of Atule and Azuela that respondent Caoili told them that he purchased the stolen skiving machines which he in turn sold to Yip. It is simply contrary to common human behavior that a person would intimate to another or others an unlawful act, that he purchased stolen items and then dispose of it at a profit. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 1

In declining to grant the corresponding motion of the prosecutor to exclude petitioner from the information in consonance with the ruling of the Secretary of Justice, the trial court ratiocinated:

Considering the records of this case and it appearing that the Information was already filed in Court, the determination of the guilt or innocence of the accused is now with this Court and the prosecution may no longer interfere with the judge's disposition of the case.

The accused has to prove his allegations when his turn to present defense evidence comes because this allegations are matters of defense to be proven in Court.

It is also noted that the Prosecutor has conducted the necessary preliminary investigation in this case; examined the complaining witnesses; and there is a reasonable ground to believe that the offense charged has been committed and accused are probably guilty thereof. In fact accused Rodolfo Caoili filed his counter-affidavit beforethe Investigating Prosecutor during the Preliminary Investigation of this case.  2

Petitioner now insists, following the rebuff by the Court of Appeals, that the determination of a prima facie case of an investigating prosecutor after the examination of declarants and his evaluation of the evidence cannot be considered as attaining finality while still subject to review by the Secretary of Justice who retains the power and authority to either affirm or reverse the findings of subordinate prosecutors. That prerogative, petitioner contends, is all up to the Secretary of Justice to take up so long as the accused has not yet been arraigned. Petitioner concludes that respondent Court of Appeals has erred in affirming the trial court in its questioned order considering that the rule laid down in Crespo vs. Mogul 3 has already been abandoned by the pronouncements inMarcelo vs. Court of Appeals 4 and Roberts, Jr., et al. vs. Court of Appeals,et al. 5

It is too much of an exaggeration to say that Crespo vs. Mogul no longer holds. The Solicitor General correctly points out that Roberts did not overturn or abandon but simply sustained the authority of the Secretary of Justice, recognized under Rule 112, Section 4, of the Rules of Court, to review resolutions of provincial or city prosecutors or the Chief State Prosecutor upon petition by a proper party even while the criminal case is already pending with the courts. It did, understandably, caution the Secretary of Justice from being indiscriminate on this matter; thus, reiterating Marcelo, the Court has said:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. 6

Roberts went on to quote with approval the Crespo rule in explaining the doctrine; thus:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as [to] its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that

the motion was filed after a reinvestigation or upon instructions of Secretary of Justice who reviewed the records of the investigation. 7

Evidently then, the appellate court viewed and appreciated correctly the now prevailing Crespo-Marcelo-Robertsrule.

Needless to say, the holding of this Court, or of the appellate court, in this instance is not to be taken as having any bearing on the ultimate disposition by the trial court of the case on its merits.

WHEREFORE, the motion for reconsideration filed by petitioner is DENIED WITH FINALITY.

SO ORDERED.