Republic
of the
Supreme Court
THIRD DIVISION
ERNESTO PIDELI, G.R. No. 163437
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus
- AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
PEOPLE
OF THE Promulgated:
PHILIPPINES,
Respondent. February 13, 2008
x - -
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- - - - - - - - x
D E C I S I O N
REYES, R.T., J.:
ON
appeal via petition for review on certiorari
under Rule 45 is the Decision[1]
of the Court of Appeals (CA), affirming that[2]
of the Regional Trial Court (P49,500.00 belonging to his brother’s
business partner. The appeal zeroes in
on the questions of ownership, unlawful taking and intent to gain. In short, is it estafa or theft?
The Facts
Sometime in March 1997, Placido Cancio
(Placido) and Wilson Pideli (
Petitioner
Ernesto Pideli (petitioner), brother to
On
Placido,
Wilson and petitioner made representations with the accountable P222,732.00.[6]
Consequently,
Placido, Wilson and petitioner computed their expenses and arrived at a net
income of P130,000.00. Placido,
as partner, claimed one-half (1/2) or P65,000.00 of the net amount as
his share in the project. Petitioner, however, advised the two to first settle
their accountabilities for the construction materials taken from the hardware
store. Placido and Wilson did as told
and entrusted the full amount to petitioner, with express instructions to pay
MTFSH and deliver the remaining balance to them.[7]
The
following day, or on
Alarmed over the sudden turn of events,
Placido lodged a complaint for theft against petitioner Ernesto Pideli. Eventually, an Information bearing the
following allegations was instituted against petitioner:
The
undersigned accuses ERNESTO PIDELE (sic)
of the crime of THEFT, committed as follows:
That
on or about the 17th day of November, 1977, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent of gain (sic)
and without the knowledge and consent of the owner thereof, did then and there
willfully, unlawfully and feloniously take, steal and carry away, cash money in
the amount of P65,000.00, belonging to PLACIDO CANSIO (sic) y TALUKTOK, to the damage and
prejudice of the owner thereof in the
aforementioned amount of SIXTY-P65,000.00), Philippine Currency.
CONTRARY
TO LAW.[10]
Upon
arraignment, petitioner pleaded “not guilty” to the charge. Then, trial on the merits ensued.
The evidence for the People portraying the
foregoing facts was supplied by private complainant Placido, the lone
prosecution witness.
Petitioner’s
defense founded on denial is summarized by the trial court as follows:
Ernesto
Pideli, 43 years old, married, government employee and a resident of Km. 4, La
Trinidad, Benguet. He is a government
employee at the Provincial Planning and Development Office, Capitol, La
Trinidad, Benguet. He was first employed
at the Provincial Engineer’s Office on
Wilson
Pideli is his brother. In 1997, his
brother Wilson had a construction project along Tinongdan, Itogon,
Benguet. His brother asked him if he
knows of a hardware which can extend him credit for construction
materials. He approached the manager of
Mt. Trail Farm Supply and Hardware, Mrs. Editha Paayas, who then said that they
could extend credit to his brother. As
of 1997, his brother owed the hardware the amount of P279,000.00 for the
construction materials supplied by the hardware, namely: reinforcement bars,
cement, tire wires and other construction materials. This amount was paid to the hardware by
installment. The first installment was
paid in June 1997 when the main contractor paid his brother. His brother gave him P179,000.00 at
his residence and he was the one who paid the hardware which issued him a
receipt (Exhibit 1-C). After the project
was completed, his brother gave him P100,000.00 on P75,000.00 which was covered by a
receipt (Exhibit 1-B). Their account was
finally computed in December 1997 and so he paid their balance of P25,000.00. All in all, he paid the hardware the amount
of P279,000.00.
When
his brother tendered to him the P100,000.00 at the Rose Bowl Restaurant,
Placido Cancio was also there discussing the expenses. The money which his brother got from the main
contractor, Boy Cupido, the partner of the late Engineer Lestino, was being
held by his brother and not Placido Cancio.
The
total cost of the materials taken by his brother from the Mt. Trail Farm Supply
is P279,000.00. On P179,000.00 covered by Exhibit 1-C issued
by the sales boy Cris. The second partial
payment was made on P75,000.00 covered by Exhibit 1-B
issued by Mrs. Editha Paayas. The last
time that he paid was on P25,000.00. This was not yet the full payment because
according to Mrs. Paayas she still has to compute for the interest. (P279,000.00
representing the materials taken by his brother, he still has an outstanding
account with Mt. Trail Farm Supply charged in his name. This is the reason why in the receipt it was
noted as part payment (
On
cross-examination, Ernesto Pideli said that he was never a partner of his
brother. It was only in 1997 that his
brother sought his assistance to look for a hardware where he can buy
construction materials on credit. All
materials ordered by P65,000.00. He
does not also know where the amount went (
On
redirect, he said that when he tendered the first payment of P179,000.00,
a statement of account was prepared by the salesboy of Mt. Trail Farm Supply
and Hardware (Exhibit 1-D). He was
furnished a copy of the statement of account.
After the first and second payment, other materials were obtained by his
brother, this is the reason why they still have a balance of P20,000.00
to be settled within the hardware.[11] (Underscoring supplied)
On
WHEREFORE,
the guilt of the accused having been proven beyond reasonable doubt, judgment
is hereby rendered CONVICTING the accused of the crime of theft and hereby
sentences him after applying the Indeterminate Sentence Law, to suffer
imprisonment from 4 years of prision
correccional medium as minimum, to 12 years of prision mayor maximum as maximum (applying Art. 309(1) of the
Revised Penal Code) and to reimburse the private complainant the amount of P49,500.00
plus interest thereon at the rate of 6% per annum from date of filing of the
complaint up to the time it is actually paid.
Costs
against the accused.
SO ORDERED.[12]
In convicting petitioner of theft,
the trial court ratiocinated:
x x x Upon evaluation of the testimonies of the
witnesses, the court finds the lone testimony of the private complainant more
credible than the testimony of the defense witnesses. The testimony of the private complainant is
positive and credible, sufficient to sustain a conviction even in the absence
of corroboration. The testimony of
defense witness Wilson Pideli was glaringly inconsistent and contradictory on
material points. At the initial stages
of his (Wilson Pideli) testimony on direct examination, he categorically stated
that it was he and his laborers who implemented the project (rip rap project
along Dalupirip Road, Itogon, Benguet) awarded to him by P15,000.00
to be given by the private complainant to the laborers who excavated for the
project; 2. P500.00 to be given by the private complainant to Mr. Apse
as payment for the cement test; 3. P10,500.00 because he (private
complainant) was pestering him (P10,500.00
despite the fact that he did not share in the expenses for the implementation
of the project (
It is unfortunate that the evidence
on record does not disclose the agreement between the private complainant and
Wilson Pideli with regards to the sharing of the capital (expenses) and profits
on the project. Article 1790 of the
Civil Code, however, provides: “Unless there is stipulation to the contrary,
the partners shall contribute equal shares to the capital of the
partnership.” Paragraph 1 of Article
1797 of the same code further provides: “The losses and profits shall be
distributed in conformity with the agreement.
If only the share of each partner in the profits has been agreed upon,
the share of each in the losses shall be in the same proportion.” Thus, it is safe for the court to conclude
that as a partner in the joint venture, Placido Cancio is entitled to 1/2 share
in the net proceeds, i.e. P130,000.00 + 2 = P65,000.00.
The accused insists that private complainant and his brother were not partners in the subcontract project. According to him, he merely acted as guarantor of his brother so the latter can withdraw construction materials on credit from the Mt. Trail Farm Supply and Hardware. As the guarantor, he was also the one who paid his brother’s credit when his brother was able to collect payment. Thus, denying the charges filed against him. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters (People v. Paragua, 257 SCRA 118). Affirmative testimony is stronger than a negative one. As between positive and categorical testimony which has a ring of truth, on one hand, and a bare denial, on the other hand, the former is generally held to prevail (People v. Tuvilla, 259 SCRA).
Finding the testimony of the private complainant to be more credible than that of the accused and his witnesses, the court rules that the presumption of innocence guaranteed by law in favor of the accused has been overturned and must be convicted of the crime charged.
Article 309(1) of the Revised Penal Code provides: Any person guilty of theft shall be punished by:
“The penalty of prision mayor in its minimum and medium periods, if the value of
the thing stolen is more than P12,000.00, but does not exceed P22,000.00;
but if the value of the thing stolen exceeds the latter amount, the penalty
shall be the maximum period of the one prescribed in this paragraph, and one
year for each additional ten thousand pesos, but the total of the penalty which
may be imposed shall not exceed twenty years.
In such cases, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of the code the penalty
shall be termed prision mayor or reclusion temporal, as the case may
be.” x x x
The penalty imposed upon those
guilty of theft depends on the amount stolen.
Accused carted away P65,000.00 representing private complainant’s
share in the next proceeds of the project.
Accused’s brother, Wilson Pideli, however, gave the private complainant
and this was admitted by the latter the amount of P10,500.00 when the
latter kept on pestering him at the Rose Bowl Restaurant and P5,000.00
at the initial (first) payment.
Thus, the amount of P10,500.00 and P5,000.00 should be
deducted from his net share of P65,000.00 leaving a balance of P49,500.00
which is now the basis for the construction of the penalty.[13] (Underscoring supplied)
Petitioner
appealed to the CA. In a decision
promulgated on
Petitioner
moved to reconsider the adverse judgment.
The motion was, however, denied with finality through a Resolution dated
Issues
In
this petition, petitioner imputes to the CA triple errors, viz.:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THE FINDING THAT THE PROPERTY ALLEGEDLY STOLEN WAS OWNED BY THE PRIVATE COMPLAINANT;
II.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THAT THERE WAS AN UNLAWFUL TAKING OF PERSONAL PROPERTY;
THE HONORABLE COURT
OF APPEALS SERIOUSLY ERRED IN AFFIRMING THAT THE ALLEGED TAKING BY THE
PETITIONER WAS ATTENDED WITH INTENT TO GAIN.[16] (Underscoring supplied)
Our Ruling
Prefatorily, the thrust of a petition
for review on certiorari under Rule 45 is the resolution only of questions of law.[17]
Any peripheral factual question addressed to this Court is beyond the ambit of
this mode of review.[18] Indeed, well-entrenched is the general rule that
the jurisdiction of this Court in cases brought before it from the CA is
limited to reviewing or revising errors of law.[19]
The petition at bench raises not only
questions of law but also of facts. We
are asked to recalibrate the evidence adduced by the parties and to reevaluate
the credibility of witnesses. On this
ground alone, the petition is dismissible.
We, however, deem it proper to delve
into the merits of the present petition considering that an appeal in a
criminal case throws the whole case wide open for review.[20]
Article 308 of the Revised Penal Code
provides for the concept of the crime of theft, viz.:
Accordingly, the elements of theft
are as follows:
1. That there be taking of personal property;
2. That said property belongs to another;
3. That the taking be done with intent to gain;
4. That the taking be done without the consent of the owner; and
5. That the taking be accomplished without the
use of violence against or intimidation of persons or force upon things.[21]
There
is, here, a confluence of the elements of theft. Petitioner received the final payment due the
partners Placido and Wilson under the pretext of paying off their obligation
with the MTFSH. Under the terms of their
agreement, petitioner was to account for the remaining balance of the said
funds and give each of the partners their respective shares. He, however,
failed to give private complainant Placido what was due him under the
construction contract.
In
an effort to exculpate himself, petitioner posits that he cannot be held liable
for theft of the unaccounted funds. The
monies subject matter of the complaint pertain to the partnership. As an agent of partner Wilson, intent to gain
cannot be imputed against petitioner.
The
CA correctly debunked petitioner’s postulation in the following tenor:
We likewise find no merit in
appellant’s contention that the money did not belong to the private complainant
as the latter was only claiming for his share of P65,000.00; that it was
owned by the partnership and was for payment of materials obtained from the
supplier. Complainant’s share in the
amount of P65,000.00 manifestly belonged to and was owned by the private
complainant.
Appellant’s argument that since the money belonged to the partnership, hence, cannot be the object of the crime of theft as between the partners, and that appellant as their agent acted in good faith and without intent to gain, holds no water. Parenthetically, this argument is inconsistent with the assertion of the defense witnesses that complainant had no participation at all in the project, and, hence, had no right to a share in its payment. In any case, appellant was not complainant’s partner but his brother. As for his alleged acting in good faith and without intent of gain, it is jurisprudentially settled that intent is a mental state, the existence of which is made manifest by overt acts of the person. The intent to gain is presumed from the taking of property appertaining to another.
Appellant presented a receipt dated P75,000.000 to Mt. Trail Farm Supply
and Hardware store. Granting arguendo that appellant paid P75,000.00
to the P130,000.00 and a balance of P55,000.00 still
remained despite the alleged payment, which should be divided into two (2) or P27,000.00
for each of them. However, not a single
centavo of this amount was received by private complainant.
When appellant received the
disbursement, he had only physical custody of private complainant’s money, which
was supposed to be applied to a particular purpose, i.e. settle the account
with the supplier. Appellant’s failure
to do so or to return the money to the private complainant renders him guilty
of the crime of theft. This is in line
with the rulings of the Supreme Court in the case of United States vs. De Vera, 43 Phil. 1000 (1929) that the delivery
of money to another for a particular purpose is a parting with its physical
custody only, and the failure of the accused to apply the money to its specific
purpose and converting it to his own use gives rise to the crime of theft. The basic principles enunciated in the De Vera case was reiterated in the
recent case of People vs. Tan, 323
SCRA 30, an Anti-Carnapping case, where the High Court ruled that the unlawful
taking or deprivation may occur after the transfer of physical possession and,
in such a case, “the article (is considered as being) taken away, not received,
although at the beginning the article was, in fact, given and received.” We agree with the Office of the Solicitor
General (
Although there is misappropriation of
funds here, petitioner was correctly found guilty of theft. As early as U.S. v. De Vera,[23]
the Court has consistently ruled that not all misappropriation is estafa.
Chief Justice Ramon C. Aquino, in his commentary on the Revised Penal
Code, succinctly opined:
The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa.[24]
In De Vera, the accused, Nieves de Vera, received from Pepe, an
Igorot, a bar of gold weighing 559.7 grams for the purpose of having a
silversmith examine the same, and bank notes amounting to P200.00 to
have them exchanged for silver coins. Accused appropriated the bar of
gold and bank notes. The Court ruled
that the crime committed was theft and not estafa since the delivery of the
personal property did not have the effect of transferring the juridical
possession, thus such possession remained in the owner; and the act of disposal
with gainful intent and lack of owner’s consent constituted the crime of theft.
In People v. P5.00
for the benefit of said offended party.
Instead of pledging the ring, the defendant immediately carried it to
one of her neighbors to whom she sold it for P30.00 and appropriated the
money to her own use. The Court, citing De Vera, similarly convicted defendant
of theft.
In People v. Locson,[26]
this Court considered deposits received by a teller in behalf of a bank as
being only in the material possession of the teller. This interpretation
applies with equal force to money received by a bank teller at the beginning of
a business day for the purpose of servicing withdrawals. Such is only
material possession. Juridical possession remains with the bank. In
line with the reasoning of the Court in the above-cited cases, beginning with People v. De Vera, if the teller appropriates
the money for personal gain then the felony committed is theft
and not estafa. Further, since
the teller occupies a position of confidence, and the bank places money in the
teller’s possession due to the confidence reposed on the teller, the felony of
qualified theft would be committed.
In People v. Isaac,[27]
this Court convicted a jeepney driver of theft and not estafa when he did not return the jeepney to its owner since the
motor vehicle was in the juridical possession of its owner, although physically
held by the driver. The Court reasoned
that the accused was not a lessee or hirer of the jeepney because the Public
Service Law and its regulations prohibit a motor vehicle operator from entering
into any kind of contract with any person if by the terms thereof it allows the
use and operation of all or any of his equipment under a fixed rental
basis. The contract with the accused
being under the “boundary system,” legally, the accused was not a lessee but
only an employee of the owner. Thus, the
accused’s possession of the vehicle was only an extension of the owner’s.
The doctrine was reiterated in the
recent case of Roque v. People.[28]
Now,
on the penalty. Article 309 of the
Revised Penal Code penalizes theft in the following tenor:
Art. 309. Penalties. – Any person guilty of theft shall be punished by:
1.
The penalty of prision mayor in its
minimum and medium periods, if the value of the thing stolen is more than
12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing
stolen exceed the latter amount, the penalty shall be the maximum period
of the one prescribed in this paragraph, and one year for each additional
ten
thousand pesos, but the total of the penalty which may be imposed shall not
exceed twenty years.[29] (Underscoring supplied)
The record bears out that private
complainant originally claimed P65,000.00 as his share in the
partnership. However, he admitted
receiving the total amount of P15,500.00, on two separate occasions,
from Wilson Pideli. Verily, only P49,500.00
is due private complainant.
Hence, the imposable penalty is the
maximum period of prision mayor
minimum and medium prescribed in the abovequoted first paragraph of Article
309. That period ranges from six (6)
years and one (1) day to ten (10) years, plus one (1) year for every additional
ten thousand pesos in excess of P22,000.00, which in this case is two
(2) years for the excess amount of P27,500.00.
Applying the Indeterminate Sentence
Law, the maximum term could be twelve (12) years while the minimum term would
fall under the next lower penalty of prision
correccional in its medium and maximum periods (2 years, 4 months and 1 day
to 6 years), to be imposed in any of its periods.
Both the trial court and the CA
sentenced petitioner to an indeterminate penalty of four (4) years of prision correccional medium, as minimum
term, to twelve (12) years of prision
mayor maximum, as maximum term. We
sustain it. Petitioner’s civil liability
is likewise maintained.
WHEREFORE, the
appealed Decision is AFFIRMED in
full.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ MINITA V.
CHICO-NAZARIO
Associate Justice
Associate Justice
ANTONIO EDUARDO
B. NACHURA
Associate Justice
I attest
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Rollo, pp. 8-16
& 62-70. Penned by Associate Justice
Portia Aliño-Hormachuelos, with Associate Justices Edgardo Cruz and Noel Tijam,
concurring.
[2]
[3]
[4] Rollo, pp. 65, 93.
[5]
[6]
[7]
[8]
[9]
[10] Rollo, pp.
115-118.
[11]
[12]
[13]
[14]
[15]
[16]
[17] Rules of Civil Procedure (1997), Rule 45, Sec. 1 provides:
Section 1.
Filing of petition with Supreme
Court. – A party desiring to appeal by certiorari
from a judgment or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by
law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of
law which must be distinctly set forth.
[18] United
Field Sea Watchman and Checkers Agency v. Requillo, G.R. No. 143527,
[19] United
[20] People v. Alzona,
G.R. No. 132029,
[21] Reyes, L.B., The Revised Penal Code, 1993
ed., Book II, p. 613; Rebucan v. People,
G.R. No. 164545,
[22] Rollo, pp.
14-15.
[23] 43 Phil. 1000 (1921).
[24] Aquino, R.C., Vol.
[25] 50 Phil. 65 (1927).
[26] 57 Phil. 325 (1932).
[27] 96 Phil. 931 (1955).
[28] Roque v. People, G.R. No. 138954,
[29] People v. Gungon,
G.R. No. 119574,