Republic of the
Supreme Court
THIRD
DIVISION
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GEMMA T. JACINTO, Petitioner, |
G.R.
No. 162540 |
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Present: |
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- versus - |
Ynares-Santiago, J., Chairperson, chico-nazario, VELASCO, JR., nachura, and PERALTA, JJ. |
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PEOPLE OF THE |
Promulgated: |
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Respondent. |
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July 13, 2009 |
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PERALTA, J.:
Before us is a petition for review on certiorari
filed by petitioner Gemma T. Jacinto seeking
the reversal of the Decision[1]
of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated
Petitioner, along with two other women, namely,
Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged before the
Regional Trial Court (RTC) of
That
on or about and sometime in the month of July 1997, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO
Y CO, and as such had free access inside the aforesaid establishment, with
grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there
willfully, unlawfully and feloniously take, steal and deposited in their own
account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00,
representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc.
to the damage and prejudice of the latter in the aforesaid stated amount of P10,000.00.
CONTRARY
TO LAW.[3]
The prosecution's
evidence, which both the RTC and the CA found to be more credible, reveals the
events that transpired to be as follows.
In the month of June
1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner
Banco De Oro (BDO) Check Number 0132649 postdated P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of
Mega Foam. Somehow, the check was
deposited in the Land Bank account of Generoso Capitle, the husband of
Jacqueline Capitle; the latter is the sister of petitioner and the former
pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena
Ricablanca, another employee of Mega Foam, received a phone call sometime in
the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if she could
issue checks payable to the account of Mega Foam, instead of issuing the checks
payable to CASH. Said customer
had apparently been instructed by Jacqueline Capitle to make check payments to
Mega Foam payable to CASH. Around
that time, Ricablanca also received a phone call from an employee of Land Bank,
Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle
that the subject BDO check deposited in his account had been dishonored.
Ricablanca then phoned
accused Anita Valencia, a former employee/collector of Mega Foam, asking the
latter to inform Jacqueline Capitle about the phone call from Land Bank
regarding the bounced check. Ricablanca
explained that she had to call and relay the message through
Thereafter, Joseph
Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed
handed petitioner a BDO check for P10,000.00 sometime in June 1997 as
payment for her purchases from Mega Foam.[4] Baby Aquino further testified that, sometime
in July 1997, petitioner also called her on the phone to tell her that the BDO
check bounced.[5] Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she had
already paid Mega Foam P10,000.00 cash in August 1997 as replacement for
the dishonored check.[6]
Generoso Capitle,
presented as a hostile witness, admitted depositing the subject BDO check in
his bank account, but explained that the check came into his possession when
some unknown woman arrived at his house around the first week of July 1997 to
have the check rediscounted. He parted
with his cash in exchange for the check without even bothering to inquire into
the identity of the woman or her address.
When he was informed by the bank that the check bounced, he merely
disregarded it as he didn’t know where to find the woman who rediscounted the
check.
Meanwhile, Dyhengco filed
a Complaint with the National Bureau of Investigation (NBI) and worked out an
entrapment operation with its agents.
Ten pieces of P1,000.00 bills provided by Dyhengco were marked
and dusted with fluorescent powder by the NBI.
Thereafter, the bills were given to Ricablanca, who was tasked to
pretend that she was going along with
On
On the agreed date,
Ricablanca again went to petitioner’s house, where she met petitioner and Jacqueline
Capitle. Petitioner, her husband, and
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not
to go with the group because she decided to go shopping. It was only petitioner, her husband,
Ricablanca and P10,000.00 marked money
previously given to her by Dyhengco.
Ricablanca divided the money and upon returning to the jeep, gave P5,000.00
each to
Petitioner and
The defense, on the other
hand, denied having taken the subject check and presented the following
scenario.
Petitioner admitted that
she was a collector for Mega Foam until she resigned on
Anita Valencia also admitted that she was the cashier of Mega
Foam until she resigned on
The trial of the three
accused went its usual course and, on
WHEREFORE, in view of the foregoing, the Court finds accused
Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and
Jacqueline Capitle GUILTY beyond reasonable doubt of the crime
of QUALIFIED THEFT and each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as
minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as
maximum.
SO ORDERED.[7]
The three appealed to the
CA and, on
IN
VIEW OF THE FOREGOING, the
decision of the trial court is MODIFIED,
in that:
(a) the
sentence against accused Gemma Jacinto stands;
(b) the
sentence against accused Anita Valencia is reduced to 4 months arresto mayor
medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for
Reconsideration of the foregoing CA Decision was filed only for petitioner
Gemma Tubale Jacinto, but the same was denied per Resolution dated
Hence,
the present Petition
for Review on Certiorari filed by petitioner alone, assailing the
Decision and Resolution of the CA. The
issues raised in the petition are as follows:
1.
Whether or not petitioner can be
convicted of a crime not charged in the information;
2.
Whether or not a worthless check can be
the object of theft; and
3. Whether or not the prosecution has proved
petitioner's guilt beyond
reasonable doubt.[8]
The
petition deserves considerable thought.
The prosecution tried to establish the following
pieces of evidence to constitute the elements of the crime of qualified theft
defined under Article 308, in relation to Article 310, both of the Revised
Penal Code: (1) the taking of personal property - as shown by the fact that
petitioner, as collector for Mega Foam, did not remit the customer's check payment to her employer and,
instead, appropriated it for herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her payment
for purchases she made; (3) the taking was done with intent to gain – this is
presumed from the act of unlawful taking and further shown by the fact that the
check was deposited to the bank account of petitioner's brother-in-law;
(4) it was done without the owner’s
consent – petitioner hid the fact that she had received the check payment from
her employer's customer by not remitting the check to the company; (5) it was
accomplished without the use of violence or intimidation against persons, nor
of force upon things – the check was voluntarily handed to petitioner by the
customer, as she was known to be a collector for the company; and (6) it was
done with grave abuse of confidence – petitioner is admittedly entrusted with
the collection of payments from customers.
However,
as may be gleaned from the aforementioned Articles of the Revised Penal Code,
the personal property subject of the theft must have some value, as the
intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309,
where the law provides that the penalty to be imposed on the accused is
dependent on the value of the thing stolen.
In
this case, petitioner unlawfully took the postdated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently
dishonored. Thus, the question arises on
whether the crime of qualified theft was actually produced.
The
Court must resolve the issue in the negative.
Intod
v. Court of Appeals[9]
is highly instructive and applicable to the present case. In Intod, the accused, intending to
kill a person, peppered the latter’s bedroom with bullets, but since the intended
victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty
of attempted murder. But upon review by
this Court, he was adjudged guilty only of an impossible crime as
defined and penalized in paragraph 2, Article 4, in relation to Article 59,
both of the Revised Penal Code, because of the factual impossibility of
producing the crime. Pertinent portions
of said provisions read as follows:
Article
4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:
x x x x
2.
By any person performing an act which would
be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the employment of
inadequate to ineffectual means. (emphasis supplied)
Article
59. Penalty to be imposed in case of
failure to commit the crime because the means employed or the aims sought are
impossible. - When the person intending to commit an offense has already
performed the acts for the execution of the same but nevertheless the crime was
not produced by reason of the fact that the act intended was by its nature one
of impossible accomplishment or because the means employed by such person are
essentially inadequate to produce the result desired by him, the court, having
in mind the social danger and the degree of criminality shown by the offender,
shall impose upon him the penalty of arresto mayor or a fine ranging
from 200 to 500 pesos.
Thus,
the requisites of an impossible crime are: (1) that the act performed would be
an offense against persons or property; (2) that the act was done with evil
intent; and (3) that its accomplishment was inherently impossible, or the means
employed was either inadequate or ineffectual.
The aspect of the inherent impossibility of accomplishing the intended
crime under Article 4(2) of the Revised Penal Code was further explained by the
Court in Intod[10]
in this wise:
Under
this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is inherently impossible of
accomplishment; or (2) the means employed is either (a) inadequate or (b)
ineffectual.
That
the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act
intended by the offender must be by its nature one impossible of
accomplishment. There must be either (1)
legal impossibility, or (2) physical impossibility of accomplishing the intended
act in order to qualify the act as an impossible crime.
Legal
impossibility occurs where the intended acts, even if completed, would not
amount to a crime.
x x x x
The
impossibility of killing a person already dead falls in this category.
On
the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. x x x [11]
In Intod, the Court went on to give an
example of an offense that involved
factual impossibility, i.e., a
man puts his hand in the coat pocket of another with the intention to steal the
latter's wallet, but gets nothing since the pocket is empty.
Herein
petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case,
petitioner performed all the acts to consummate the crime of qualified
theft, which is a crime against property. Petitioner's evil intent cannot be denied, as
the mere act of unlawfully taking the check meant for Mega Foam showed her
intent to gain or be unjustly enriched.
Were it not for the fact that the check bounced, she would have received
the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check
being unfunded, a fact unknown to petitioner at the time, that prevented the
crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely worthless, because
the check was eventually dishonored, and Mega Foam had received the cash to
replace the value of said dishonored check.
The
fact that petitioner was later entrapped receiving the P5,000.00 marked
money, which she thought was the cash replacement for the dishonored check, is
of no moment. The Court held in Valenzuela
v. People[12]
that under the definition of theft in Article 308 of the Revised Penal Code,
“there is only one operative act of execution by the actor involved in theft
─ the taking of personal property of another.” Elucidating further, the Court held, thus:
x x
x Parsing through the statutory
definition of theft under Article 308, there is one apparent answer provided in
the language of the law — that theft is already “produced” upon the “tak[ing
of] personal property of another without the latter’s consent.”
x x x x
x x
x when is the crime of theft
produced? There would be all but certain unanimity in the position that theft
is produced when there is deprivation of personal property due to its taking by
one with intent to gain. Viewed from that perspective, it is immaterial to the
product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen
since the deprivation from the owner alone has already ensued from such acts of
execution. x x x
x
x x x
x x
x we have, after all, held that
unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of
one’s personal property, is the element which produces the felony in its
consummated stage. x x x [13]
From the above discussion, there can be no question
that as of the time that petitioner took possession of the check meant for
Mega Foam, she had performed all the acts to consummate the crime of theft, had
it not been impossible of accomplishment in this case. The circumstance of petitioner receiving the P5,000.00
cash as supposed replacement for the dishonored check was no longer necessary
for the consummation of the crime of qualified theft. Obviously, the plan to convince
Baby Aquino to give cash as replacement for the check was hatched only after
the check had been dishonored by the drawee bank. Since the crime of theft is not a continuing
offense, petitioner's act of receiving the cash replacement should not be considered
as a continuation of the theft. At
most, the fact that petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.
Moreover,
the fact that petitioner further planned to have the dishonored check replaced
with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not
included or covered by the allegations in the Information, the Court cannot pronounce
judgment on the accused; otherwise, it would violate the due process clause of
the Constitution. If at all, that
fraudulent scheme could have been another possible source of criminal
liability.
IN VIEW OF THE FOREGOING, the petition
is GRANTED. The Decision of the
Court of Appeals, dated
SO ORDERED.
DIOSDADO
M. PERALTA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA
V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
ATTESTATION
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
Third
Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson’s Attestation, I certify that the conclusions in the above
Decision were 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] Penned by Associate Justice Mario L. Guariña III, with Associate Justices Martin S. Villarama, Jr. and Jose C. Reyes, Jr., concurring; rollo, pp. 70-77.
[2]
[3] Records, p. 107.
[4] TSN,
[5]
[6] TSN,
[7] Rollo, p. 51.
[8]
[9] G.R. No. 103119,
[10] Supra.
[11]
[12] G.R. No. 160188,
[13]