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G.R. No. 82264-66 December 4, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.

ISAGANI GULINAO Y ALZONA, accused-appellant.

PARAS,J.:

In three (3) separate Informations filed before the Regional Trial Court of Valenzuela,

Metro Manila, Isagani Gulinao was charged with

1. Illegal Possession of Firearm with Murder (Proper designation of the offense on thebasis of the allegations in the Information should be Murder committed with the use ofan unlicensed firearm) Crim Case No. 8016-V-87;

2. Robbery Crim. Case No. 8017-V-87; and

3. Carnapping Crim. Case No. 8048-V-87

allegedly committed as follows:

1. Criminal Case No. 8016-V-87, For Violation of PD 1866 (Illegal Possession of Firearmwith Murder)

That on or about the 4th day of March, 1987, in the municipality of Valenzuela, MetroManila, Philippines, and within the jurisdiction of this Honorable Court, the above-namedaccused, did then and there willfully, unlawfully and feloniously have in his possession

and control one (1) Colt Caliber .45 pistol with SN C-1039161, without authority and/orpermit to do and with evident premeditation, treachery and intent to kill Samson Chua,use said firearm to attack, assault and shoot said Samson Chua, hitting the latter on hisbody, thereby causing his instantaneous death.

2. Criminal Case No. 8017-V-87, For Robbery

That on or about the 4th day of March, 1987, in the municipality of Valenzuela, MetroManila, Philippines and within the jurisdiction of this Honorable Court, the above-namedaccused, did then and there willfully, unlawfully and feloniously, and with violence uponthe person of Samson Chua, with intent to gain take rob and carry away with him one(1) gold men's ring with twelve (12) diamond stones worth P85,000.00 belonging tosaid Samson Chua, to the damage and prejudice of the latter in the sum of P85,000.00.

3. Criminal Case No. 8048-V-87, For Carnapping

That on or about March 4,1987, in the municipality of Valenzuela, Metro Manila,

Philippines, and within the jurisdiction of this Honorable Court, the above-namedaccused, did then and there willfully, unlawfully and feloniously, with intent to gain andby means of force, violence and intimidation, to wit: by then and there shooting todeath Samson Chua y Domingo, the person to whom the owner entrusted

theaforementioned motor vehicle, and intimidating with gunshots Virgilio Caguioa yDionisio, the driver/occupant of said motor vehicle, and then did take, steal and carryaway, without the owner's consent, a Toyota Corona Silver Edition, Colored Blue,bearing plate No. PNB '870 and valued at P250,000.00 to the damage and prejudice ofthe owner, Chua Ang Sing, in the aforesaid sum of P250,000.00 Philippine Currency.(pp. 1-3, Brief for the Appellee; p. 106, Rollo)

Gulinao pleaded "not guilty" to the "Robbery" and "Carnapping" charges. But, herefused to enter any plea to the charge of "Illegal Possession of Firearm with Murder",hence, the trial court entered for him a plea of "not guilty" pursuant to Sec. 1 (c), Rule116, 1985 Rules of Court on Criminal Procedure. However, Gulinao moved to quash theInformation charging him with "Illegal Possession of Firearm" on the ground that there

was another Criminal Case No. 87-52928 for "Illegal Possession of Firearm" pendingbefore the Regional Trial Court of Manila. In an Order dated April 24, 1987, the trialcourt denied Gulinao's motion to quash. Whereupon, Gulinao assailed the Order in apetition for certiorari (CA-G.R. SP No. 12412) before the Court of Appeals. In a Decisiondated September 22, 1987, the Court of Appeals dismissed the petition for lack of merit.

The aforesaid three (3) criminal cases were jointly tried. After the prosecution hadcompleted the presentation of its evidence, the case was set on October 28, 1987 forthe reception of evidence for the defense. On the said date Gulinao refused to take thewitness stand. Atty. Ricardo Perez, his counsel de oficio who was representing him in

the case for "Illegal Possession of Firearm with Murder", manifested in open court thatGulinao even refused to be interviewed. On motion of Atty. Perez to give him more timeto talk to Gulinao or to withdraw from the case, the hearing was re-set to Nov. 6, Nov.16, Nov. 25 and Dec. 2, 1987, with warning that Gulinao's failure to present evidence inthe next hearing without valid grounds would be deemed a waiver of presentation ofevidence for his defense.

Meanwhile, on Nov. 4, 1987, Atty. Reynaldo Garcia, Gulinao's counsel de parte in thecases for "Robbery" and "Carnapping" withdrew his appearance with the conformity ofGulinao.

In the scheduled hearing on Nov. 6, 1987, Gulinao did not present evidence. In the nexthearing on Nov. 16, 1987, two (2) young men tried to move for postponement, but theywere found by the trial court as not full-pledged lawyers. Gulinao refused to presentevidence despite the willingness of Atty. Perez to assist him. Atty. Perez later filed a

motion to withdraw appearance due to the uncooperativeness of Gulinao.In view of the previous warning given by the trial court, Gulinao's failure to presentevidence without valid ground was considered as waiver of his right to present

evidence. In the Order dated Nov. 16, 1987, the trial court noted:

Today when these cases were called for hearing the Court's appointed counsel de oficio,manifested that the accused again did not want to cooperate and manifested that infairness to himself as lawyer and in fairness to the accused he is withdrawing hisappearance. The Court commiserates with the predicament of defense counsel who wasmuch interested to help the accused and the Court to give due process and to expeditethe hearing but the Court noted that it is the accused who has stubbornly refused topresent his defense evidence. Prior to his having been accused he was a full-pledgedpolice officer and he used to investigate cases for less than 3 years. (p. 6, Brief for theAppellee; p. 106, Rollo)

On Nov. 23, 1987, the trial court rendered a Decision, the dispositive portion of whichreads-

WHEREFORE, in view of the foregoing the Court finds the accused Isagani Gulinao guiltybeyond reasonable doubt of the following crimes:

1. Illegal Possession of Firearm with Murder and hereby sentences him to suffer lifeimprisonment which is one degree lower than the death penalty considering that theCourt can no longer impose the penalty of death as mandated by the New Constitution.

2. Robbery under Art. 294 par. 5 and hereby sentences him to suffer the penaltyofprision correccionalin its maximum period toprision mayorin its medium period orfour (4) years, two (2) months and one (1) day to six (6) years one (1) month and ten(10) days.

3. Carnapping and hereby sentences him to suffer imprisonment of fourteen (14) yearsand eight (8) months as minimum to seventeen (17) years and four (4) months asmaximum.

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4. To indemnify the heirs of the victim Dr. Samson Chua in the sum of P500,000.00,and to pay the costs. The entire period of the previous imprisonment of accused shall becredited in his favor. (p. 7, Brief for the Appellee; p. 106, Rollo)

From the aforesaid decision, Gulinao interposed this appeal to this Court on thefollowing assignment of errors:

ITHE TRIAL COURT GRAVELY ERRED IN NOT ALLOWING THE ACCUSED-APPELLANT TOPRESENT HIS EVIDENCE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THECRIME OF ILLEGAL POSSESSION OF FIREARM WITH MURDER.III

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OFROBBERY UNDER ARTICLE 294, PARAGRAPH 5, OF THE REVISED PENAL CODE.

IVTHE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THECRIME OF CARNAPPING. (p. 8, Brief for the Appellee; p. 106, Rollo)

As established by the evidence of the prosecution, the facts of the case are as follows-

On March 3, 1987, at about 9:00 P.M., Dr. Chua, appellant Gulinao (driver-bodyguard ofDr. Chua), Virgilio Caguioa (secretary of Dr. Chua), Vice Mayor Teofilo Reyes ofMalabon, Dante Reyes (nephew of Vice Mayor Reyes), Boy Salazar and other politicianswere having a caucus in the house of a certain Torre in Acacia, Malabon. After the

caucus at about 11:00 P.M., the group of Dr. Chua boarded Dr. Chua's car and that ofVice Mayor Reyes and proceeded to the Bar-Bar Disco House along McArthur Highway,Valenzuela, Metro Manila (pp. 5-10, TSN April 6, 1987)

Upon arriving at the disco house, Gulinao, who had in his possession an Ingrammachine pistol, swapped the same with a .45 caliber pistol in possession of DanteReyes. Gulinao then tucked the .45 caliber pistol in his right waist (pp. 11-13, TSN May18, 1987).

Inside the disco house, Dr. Chua, Gulinao and companions occupied 2 tables which werejoined together neat, the stage (pp. 14-18, TSN April 6, 1987). Later, Gulinao went tothe comfort room and cocked the .45 caliber pistol. He then returned to his seat besideDr. Chua (pp. 14-15 TSN May 18, 1987).

While Dr. Chua was watching the floor show, Gulinao stood up and shot him onthe head at close range with the .45 caliber pistol (pp. 16-17 TSN May 22,

1987). When Gulinao was about to leave the disco house, he turned back to Dr.Chua and took the latter's gold ring embedded with 12 diamonds (p. 11 TSNOctober 5, 1987; pp. 28-29 TSN April 6, 1987; Exhs. "H" and "L-1") Thereupon,Gulinao rushed outside the disco house to the car of Dr. Chua (p. 27 TSN April 6,1987).

Poking the gun at Caguioa who was inside the car, Gulinao ordered the formerto leave the car. While Caguioa was getting out of the car, Gulinao fired at himbut missed (pp. 27-29 TSN April 6, 1987). On the other hand, Dante Reyestried to fire at Gulinao with the Ingram machine pistol, but the Ingram jammed(pp. 16-17 TSN May 18, 1987).

Gulinao drove the car towards Monumento (p. 29 TSN April 6, 1987). However,he was constrained to leave the car and take a taxi when the car he wasdriving figured in an accident in Malabon (p. 15 TSN July 10, 1987; Exh. "L-1").

Dr. Chua, who sustained gunshot wounds oil the head, was brought to the nearby OurLady of Fatima Hospital where he died on arrival (p. 17 TSN May 18, 1981). (pp. 8-11,Brief for the Appellee; p. 106, Rollo)

The contention of Gulinao in his first assignment of error is false. The record shows thathe was given several opportunities to present his defense but it was he who refused totake the witness stand or to present any evidence.

Gulinao's second assignment of error raises a question of double jeopardy. It is claimedthat "the indictment for violation of Presidential Decree No. 1866 (Illegal Possession ofFirearm) against the accused-appellant in Crim. Case No. 8016-V-87 after he was

already slapped of the same violation before the Regional Trial Court of Manila (in Crim.Case No. 87-52928) involving the same firearm and ammunition is a classic case ofputting the accused-appellant in jeopardy (pp. 10-11, appellant's brief).

This issue had already been raised by Gulinao in a petition for certiorari(CA-G.R. SP No.12412) before the Court of Appeals. which in a Decision dated September 22, 1987 heldthat-

Since the incident that spawned Criminal Case No. 87-52928 in Manila happenedon March 5, 1987, while that in Criminal Case No. 8016-V-87pending before RTC,Valenzuela, happened on March 4, 1987; and since in the first case the charge is thatofillegal possession of firearms and that in the second case the commission of murderwith the use of an illegally possessed firearms , it follows that there is no Identity of thecrime charged and hence, no double jeopardy.

xxx xxx xxxAs stated by the court a quo, there is no possibility of double jeopardy, as thepossession thereof had taken place in twoseparate and distinct places and

jurisdiction and the two informations state different dates of commission. (pp.164 and 169, Rec.; Emphasis supplied; See also Lu Hayco vs. Court of Appeals, 138SCRA 227 [1985]. (pp. 15-16, Brief for the Appellee; p. 106, Rollo)

In respect to his third assignment of error Gulinao should have been convicted of thecrime of theft under Art. 308, Revised Penal Code, not robbery with the use of violenceagainst or intimidation of a person under par. 5, Art. 294 Revised Penal Code. As the

trial court itself noted, on the basis of Patino's testimony, the taking of the ring of Dr.Chua was merely an afterthought. The force employed in the killing of Dr. Chua has nobearing on the taking of his ring.

Gulinao's contention in his fourth assignment of error that there was no proof of intentto gain in the taking of Dr. Chua's car is bereft of merit. Intent to gain, being an internalact, is presumed from the unlawful taking of the car. This presumption was unrebutted.

IN VIEW OF THE FOREGOING, the appealed Decision dated Nov. 23,1987, with respectto the cases for "Illegal Possession of Firearm with Murder" (Crim. Case No. 8016-V-87)and "Carnapping" (Crim. Case No. 8048-V-87) is AFFIRMED in toto, it being inaccordance with the law and evidence.

With respect to the case for "Robbery" (Crim. Case No. 8017V- 871), par. 2 of thedispositive portion of the appealed Decision is MODIFIED to the effect that Gulinao isconvicted of the crime of Theft and sentenced to suffer the indeterminate penalty of 3years, 6 months and 21 days to 4 years, 9 months and 10 days ofprisioncorreccionalas minimum and 7 years, 4 months and 1 day to 8 years and 8 monthsofprision mayor, as maximum.

SO ORDERED

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G.R. No. 77429 January 29, 1990LAURO SANTOS, petitioner,

vs.PEOPLE OF THE PHILIPPINES, respondent.

Puruganan, Chato, Chato & Tan for petitioner,

CRUZ,J.:

The factual findings of the lower courts are as a matter of policy not disturbed by thisCourt in the absence of any of the recognized exceptions that will justify reversal. Asnone of these exceptions appears in the case at bar, the petitioner's conviction, basedon such findings, must be affirmed.

The evidence of the prosecution is, in the view of the Court, conclusive of thepetitioner's guilt.

Sometime in November 1980, the complaining witness, Encarnacion Pealosa,entrusted her car, a 1976 Ford Escort, to herein petitioner Lauro Santos forrepair of the carburetor. The work was to cost P300.00. A week later, Santospersuaded her to have her car repainted by him for P6,500.00, within a periodof two months. 1

After two months, Pealosa went to the petitioner's repair shop at MacArthurHighway, Malabon, to retrieve her car. Santos refused to deliver the vehicleunless she paid him P634.60 for the repairs. As she did not have the moneythen, she left the shop to get the needed payment. Upon her return, she couldnot find Santos although she waited five hours for him. She went back to theshop several times thereafter but to no avail. 2

Pealosa was to learn later that Santos had abandoned his shop in Malabon. Unable torecover her car, she filed a complaint for carnapping against Santos with theConstabulary Highway Patrol Group in Camp Crame. The case was dismissed when thepetitioner convinced the military authorities that the complainant had sold thevehicle to him. He submitted for this purpose a Deed of Sale with Right of Repurchasein his favor. 3

This notwithstanding, an information for estafa on Pealosa's complaint was filed

against Santos in the Regional Trial Court of Quezon City on October 26,1982. Aftertrial, the accused was found guilty as charged and sentenced to "an indeterminatepenalty of from four (4) months and one (1) day as minimum to four (4) years and two(2) months as maximum, both ofprision correccional, to indemnify the offended partyin the amount of P38,000.00 which is the value of the car without subsidiaryimprisonment in case of insolvency and with costs." 4

On appeal, the conviction was affirmed but Santos was held guilty of qualified theft andnot estafa. The dispositive portion of the decision of the respondent court 5 read:

WHEREFORE, the judgment appealed from is MODIFIED: the offense committed by theappellant is qualified theft and he is hereby sentenced to an indeterminate penaltyranging from TEN (10) YEARS and ONE (1) DAY ofprisionmayor, as minimum, toFOURTEEN (14) YEARS and EIGHT (8) MONTHS ofreclusion temporal, as maximum; toindemnify Encarnacion Pealosa the sum of P20,000.00 without subsidiaryimprisonment in case of insolvency; and, to pay the costs.

In his defense, the petitioner now quibbles about the supposed inconsistences of thecomplaining witness that he says make her testimony questionable. Our ruling is that

such inconsistencies are minor lapses and do not impair Pealosa's credibility as awhole. Santos also wonders why, if it is true that she had asked him to repairand repaint her car, she had not even made an advance payment. One reasoncould be that he himself did not ask for such advance, considering that they weremembers of the same bowling team. There is even the suggestion that he was smittenwith her although she says she rejected his suit. 6

The petitioner's main reliance, though, is on the Deed of Sale with Right of Repurchasewhich he submitted at the trial to prove that Pealosa had sold the car to him and nowhad no claim to it.

The lower courts were correct in rejecting this shoddy evidence. It is a wonder that itwas even considered at all when the case filed in Camp Crame was dismissed.

A cursory look at this alleged document will show that it is spurious. There arealterations and deletions that are not even initialed to authenticate thechanges. Two entire paragraphs are cancelled. The name and address of the

supposed original vendee are crossed out and those of the petitioner arewritten in place of the deletions. Moreover, the so-called deed is not notarized.

It would have been so easy to re-type the one-page document to express clearly andindubitably the intent of the parties and then have it properly acknowledged. But thiswas not done. The petitioner insists that the document was originally intended to beconcluded between Pealosa and Domingo Corsiga but was hastily changed to makeSantos the buyer and mortgagee. 7 Surely a vendee would not be so rash as to dependfor his title to the thing purchased on such a shabby and dubious deed of sale.

The petitioner also makes much of the fact that Pealosa did not even sign a job orderor get a receipt when she delivered her car to him for repairs. In fact, she did not evencheck where his repair shop was. He forgets that he was no less trusting either. Hehimself does not explain why the amount of P6,000.00 he allegedly gave for the car wasnot acknowledged by Pealosa in the Deed of Sale or in a separate instrument. Therewas no proof at all of such payment.

Given these circumstances, we find it easier to believe that Pealosa had signed theoriginal document with the intention of selling her car to Domingo Corsiga, the partyfirst named therein, but later changed her mind. She left the unused document in hercar and Santos, chancing upon it when the vehicle was delivered to him, decided tomodify it to suit his purposes.

Besides, as the respondent court correctly observed, why would Santos still demand

from Pealosa the cost of the repairs on the car if he claims he had already bought itfrom her? And there is also the glaring fact that Santos was unable to register the car inhis name despite the lapse of all of two years after his alleged purchase of the vehicle.

In his supplemental memorandum, the petitioner says he could not register the carbecause it had merely been mortgaged to him and he had to wait until the expiration ofthe period of repurchase. 8 Yet, during his cross-examination on March 5, 1984, Santosrepeatedly declared that the car belonged to him and that the right of repurchaseexpired after two months from November or December 1980. He also said that ratherthan register it, he could cannibalize the car and sell the spare parts separately atgreater profit. 9

The Court also notes that, according to Santos, he accompanied Pealosa to redeem hercar from Corsiga and that he himself gave her the money for such redemption inCorsiga's presence. 10 Having made that allegation, it was for the petitioner himself to

present Corsiga as his witness to corroborate that statement. Santos did not, and sofailed to prove what was, to begin with, an improbable defense. Ei incumbit probatio uidicit.

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Although the information charged the petitioner with estafa, the crimecommitted was theft. It is settled that what controls is not the designation ofthe offense but the description thereof as alleged in the information. 11 And asdescribed therein, the offense imputed to Santos contains all the essentialelements of theft, to wit: (1) that there be a taking of personal property; (2)that said property belongs to another; (3) that the taking be done with intentto 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 or intimidationagainst persons or force upon things. 12

Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino inhis book on the Revised Penal Code, "The principal distinction between the two crimes isthat in theft the thing is taken while in estafa the accused receives the propertyand converts it to his own use or benefit. However, there may be theft even if theaccused has possession of the property. If he was entrusted only with the materialor physical (natural) or de factopossession of the thing, his misappropriationof the same constitutes theft, but ifhe has the juridical possession of the thing, hisconversion of the same constitutes embezzlement or estafa." 13

The petitioner argues that there was no intent to gain at the time of the taking of thevehicle and so no crime was committed. In U.S. v. De Vera, 14 we held that thesubsequent appropriation by the accused of the thing earlier delivered to him suppliedthe third element that made the crime theft instead of estafa.

Illustrating, the Court declared:

... let us suppose that A, a farmer in the Province of Bulacan, agrees to sell B a certainquantity of rice at a certain price per picul. A ships several sacks of the grain which Breceives in his warehouse. If, prior to the measuring required before the payment of theagreed price, B takes a certain quantity of rice from the different sacks, there can be nodoubt that he is guilty of the crime of theft. Now, it may be asked: Did not B receive thesacks of rice shipped to him by A?-Yes. And did A voluntarily deliver the sacks of ricewhich he owned by shipping them to B?-Yes Was the taking of the rice by B from thedifferent sacks done with A's consent?- No.

This shows, to our mind, that the theory of the defense is untenable, according towhich, when the thing is received and then appropriated or converted to one's own usewithout the consent of the owner, the crime committed is not that of theft.

It was erroneous for the respondent court to hold the petitioner guilty of qualified theftbecause the fact that the object of the crime was a car was not alleged in the

information as a qualifying circumstance. 15 Santos would have had reason to argue thathe had not been properly informed of the nature and cause of the accusation againsthim, as qualified theft carries a higher penalty.

But although not pleaded and so not considered qualifying, the same circumstance maybe considered aggravating, having been proved at the trial. 16 Hence the imposablepenalty for the theft, there being no other modifying circumstances, should be in themaximum degree.

According to the Solicitor General:

The value of the car is P38,000.00. Under Article 309 of the Revised Penal Code, if thevalue of the thing stolen exceeds P22,000.00, the penalty should be the maximumperiod of the prescribed penalty plus one year for each additional P10,000.00. Thus theimposable penalty is the maximum of prision mayor with a range of TEN (10) YEARS

and ONE (1) DAY to TWELVE (12) YEARS plus an additional ONE (1) YEAR for everyP10,000.00 in excess of P22,000.00, raising the maximum penalty into ReclusionTemporal in the minimum period.

Applying the Indeterminate Sentence Law, there being one aggravating and nomitigating circumstance the imposable penalty recommended is from SIX (6) YEARSand ONE (1) DAY ofprision mayorto THIRTEEN (13) YEARS ofreclusion temporal.

We approve the above observations and sentence the petitioner accordingly,

WHEREFORE, the appealed decision is AFFIRMED as herein modified. The petitioner isdeclared guilty of theft and sentenced to from six (6) years and one (1) day ofprisionmayorto thirteen (13) years ofreclusion temporal

. He is also ordered to restore the carin question to the private respondent, or if this is no longer possible, to pay her thevalue thereof in the amount of P38,000.00,

G.R. No. 155076 January 13, 2009

LUIS MARCOS P. LAUREL, Petitioner,vs.HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, MakatiCity, Branch 150, PEOPLE OF THE PHILIPPINES & PHILIPPINE LONG DISTANCETELEPHONE COMPANY Respondents.

R E S O L U T I O N

YNARES-SANTIAGO,J.:

On February 27, 2006, this Courts First Division rendered judgment in this case asfollows:

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of theRegional Trial Court and the Decision of the Court of Appeals are REVERSED and SETASIDE. The Regional Trial Court is directed to issue an order granting the motion of thepetitioner to quash the Amended Information.

SO ORDERED.1

By way of brief background, petitioner is one of the accused in Criminal Case No. 99-2425, filed with the Regional Trial Court of Makati City, Branch 150. The AmendedInformation charged the accused with theft under Article 308 of the Revised Penal Code,committed as follows:

On or about September 10-19, 1999, or prior thereto in Makati City, and within thejurisdiction of this Honorable Court, the accused, conspiring and confederating togetherand all of them mutually helping and aiding one another, with intent to gain and withoutthe knowledge and consent of the Philippine Long Distance Telephone (PLDT), did then

and there willfully, unlawfully and feloniously take, steal and use the international longdistance calls belonging to PLDT by conducting International Simple Resale (ISR), whichis a method of routing and completing international long distance calls using lines,cables, antenae, and/or air wave frequency which connect directly to the local ordomestic exchange facilities of the country where the call is destined, effectivelystealing this business from PLDT while using its facilities in the estimated amount ofP20,370,651.92 to the damage and prejudice of PLDT, in the said amount.

CONTRARY TO LAW.2

Petitioner filed a "Motion to Quash (with Motion to Defer Arraignment)," on the groundthat the factual allegations in the Amended Information do not constitute the felony oftheft. The trial court denied the Motion to Quash the Amended Information, as wellpetitioners subsequent Motion for Reconsideration.

Petitioners special civil action for certiorari was dismissed by the Court of Appeals.Thus, petitioner filed the instant petition for review with this Court.

http://www.lawphil.net/judjuris/juri2009/jan2009/gr_155076_2009.html#fnt1http://www.lawphil.net/judjuris/juri2009/jan2009/gr_155076_2009.html#fnt1http://www.lawphil.net/judjuris/juri2009/jan2009/gr_155076_2009.html#fnt2http://www.lawphil.net/judjuris/juri2009/jan2009/gr_155076_2009.html#fnt1http://www.lawphil.net/judjuris/juri2009/jan2009/gr_155076_2009.html#fnt2

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In the above-quoted Decision, this Court held that the Amended Information does notcontain material allegations charging petitioner with theft of personal property sinceinternational long distance calls and the business of providing telecommunication ortelephone services are not personal properties under Article 308 of the Revised PenalCode.

Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion forReconsideration with Motion to Refer the Case to the Supreme Court En Banc. Itmaintains that the Amended Information charging petitioner with theft is valid andsufficient; that it states the names of all the accused who were specifically charged withthe crime of theft of PLDTs international calls and business of providingtelecommunication or telephone service on or about September 10 to 19, 1999 inMakati City by conducting ISR or International Simple Resale; that it identifies theinternational calls and business of providing telecommunication or telephone service ofPLDT as the personal properties which were unlawfully taken by the accused; and that itsatisfies the test of sufficiency as it enabled a person of common understanding to knowthe charge against him and the court to render judgment properly.

PLDT further insists that the Revised Penal Code should be interpreted in the context ofthe Civil Codes definition of real and personal property. The enumeration of realproperties in Article 415 of the Civil Code is exclusive such that all those not includedtherein are personal properties. Since Article 308 of the Revised Penal Code used thewords "personal property" without qualification, it follows that all "personal properties"as understood in the context of the Civil Code, may be the subject of theft under Article308 of the Revised Penal Code. PLDT alleges that the international calls and business of

providing telecommunication or telephone service are personal properties capable ofappropriation and can be objects of theft.

PLDT also argues that "taking" in relation to theft under the Revised Penal Code doesnot require "asportation," the sole requisite being that the object should be capable of"appropriation." The element of "taking" referred to in Article 308 of the Revised PenalCode means the act of depriving another of the possession and dominion of a movablecoupled with the intention, at the time of the "taking," of withholding it with thecharacter of permanency. There must be intent to appropriate, which means to deprivethe lawful owner of the thing. Thus, the term "personal properties" under Article 308 ofthe Revised Penal Code is not limited to only personal properties which are "susceptibleof being severed from a mass or larger quantity and of being transported from place toplace."

PLDT likewise alleges that as early as the 1930s, international telephone calls were in

existence; hence, there is no basis for this Courts finding that the Legislature could nothave contemplated the theft of international telephone calls and the unlawfultransmission and routing of electronic voice signals or impulses emanating from suchcalls by unlawfully tampering with the telephone device as within the coverage of theRevised Penal Code.

According to respondent, the "international phone calls" which are "electric currents orsets of electric impulses transmitted through a medium, and carry a patternrepresenting the human voice to a receiver," are personal properties which may besubject of theft. Article 416(3) of the Civil Code deems "forces of nature" (whichincludes electricity) which are brought under the control by science, are personalproperty.

In his Comment to PLDTs motion for reconsideration, petitioner Laurel claims that atelephone call is a conversation on the phone or a communication carried out using the

telephone. It is not synonymous to electric current or impulses. Hence, it may not beconsidered as personal property susceptible of appropriation. Petitioner claims that theanalogy between generated electricity and telephone calls is misplaced. PLDT does not

produce or generate telephone calls. It only provides the facilities or services for thetransmission and switching of the calls. He also insists that "business" is not personalproperty. It is not the "business" that is protected but the "right to carry on a business."This right is what is considered as property. Since the services of PLDT cannot beconsidered as "property," the same may not be subject of theft.

The Office of the Solicitor General (OSG) agrees with respondent PLDT that"international phone calls and the business or service of providing international phonecalls" are subsumed in the enumeration and definition of personal property under theCivil Code hence, may be proper subjects of theft. It noted that the cases ofUnitedStates v. Genato,3United States v. Carlos4 and United States v. Tambunting,5whichrecognized intangible properties like gas and electricity as personal properties, aredeemed incorporated in our penal laws. Moreover, the theft provision in the RevisedPenal Code was deliberately couched in broad terms precisely to be all-encompassingand embracing even such scenario that could not have been easily anticipated.

According to the OSG, prosecution under Republic Act (RA) No. 8484 or the AccessDevice Regulations Act of 1998 and RA 8792 or the Electronic Commerce Act of2000 does not preclude prosecution under the Revised Penal Code for the crime of theft.The latter embraces unauthorized appropriation or use of PLDTs international calls,service and business, for personal profit or gain, to the prejudice of PLDT as ownerthereof. On the other hand, the special laws punish the surreptitious and advancedtechnical means employed to illegally obtain the subject service and business. Evenassuming that the correct indictment should have been under RA 8484, the quashal ofthe information would still not be proper. The charge of theft as alleged in the

Information should be taken in relation to RA 8484 because it is the elements, and notthe designation of the crime, that control.

Considering the gravity and complexity of the novel questions of law involved in thiscase, the Special First Division resolved to refer the same to the Banc.

We resolve to grant the Motion for Reconsideration but remand the case to the trialcourt for proper clarification of the Amended Information.

Article 308 of the Revised Penal Code provides:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intentto gain but without violence against, or intimidation of persons nor force upon things,shall take personal property of another without the latters consent.

The elements of theft under Article 308 of the Revised Penal Code 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 theconsent of the owner; and (5) that the taking be accomplished without the use ofviolence against or intimidation of persons or force upon things.

Prior to the passage of the Revised Penal Code on December 8, 1930, the definition ofthe term "personal property" in the penal code provision on theft had been establishedin Philippine jurisprudence. This Court, in United States v. Genato, United States v.Carlos, and United States v. Tambunting, consistently ruled that any personal property,tangible or intangible, corporeal or incorporeal, capable of appropriation can be theobject of theft.

Moreover, since the passage of the Revised Penal Code on December 8, 1930, the term"personal property" has had a generally accepted definition in civil law. In Article 335 ofthe Civil Code of Spain, "personal property" is defined as "anything susceptible of

appropriation and not included in the foregoing chapter (not real property)." Thus, theterm "personal property" in the Revised Penal Code should be interpreted in the contextof the Civil Code provisions in accordance with the rule on statutory construction that

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where words have been long used in a technical sense and have been judiciallyconstrued to have a certain meaning, and have been adopted by the legislature ashaving a certain meaning prior to a particular statute, in which they are used, the wordsused in such statute should be construed according to the sense in which they havebeen previously used.6 In fact, this Court used the Civil Code definition of "personalproperty" in interpreting the theft provision of the penal code in United States v. Carlos.

Cognizant of the definition given by jurisprudence and the Civil Code of Spain to theterm "personal property" at the time the old Penal Code was being revised, still thelegislature did not limit or qualify the definition of "personal property" in the RevisedPenal Code. Neither did it provide a restrictive definition or an exclusive enumeration of"personal property" in the Revised Penal Code, thereby showing its intent to retain forthe term an extensive and unqualified interpretation.1avvphi1.zw+ Consequently, anyproperty which is not included in the enumeration of real properties under the Civil Codeand capable of appropriation can be the subject of theft under the Revised Penal Code.

The only requirement for a personal property to be the object of theft under the penalcode is that it be capable of appropriation. It need not be capable of "asportation,"which is defined as "carrying away."7 Jurisprudence is settled that to "take" under thetheft provision of the penal code does not require asportation or carrying away. 8

To appropriate means to deprive the lawful owner of the thing. 9 The word "take" in theRevised Penal Code includes any act intended to transfer possession which, as held inthe assailed Decision, may be committed through the use of the offenders own hands,as well as any mechanical device, such as an access device or card as in the instantcase. This includes controlling the destination of the property stolen to deprive theowner of the property, such as the use of a meter tampering, as held in Natividad v.Court of Appeals,10use of a device to fraudulently obtain gas, as held in United States v.Tambunting, and the use of a jumper to divert electricity, as held in the cases of UnitedStates v. Genato, United States v. Carlos, and United States v. Menagas.11

As illustrated in the above cases, appropriation of forces of nature which are broughtunder control by science such as electrical energy can be achieved by tampering withany apparatus used for generating or measuring such forces of nature, wrongfullyredirecting such forces of nature from such apparatus, or using any device tofraudulently obtain such forces of nature. In the instant case, petitioner was chargedwith engaging in International Simple Resale (ISR) or the unauthorized routing andcompleting of international long distance calls using lines, cables, antennae, and/or airwave frequency and connecting these calls directly to the local or domestic exchangefacilities of the country where destined.

As early as 1910, the Court declared in Genato that ownership over electricity (which aninternational long distance call consists of), as well as telephone service, is protected bythe provisions on theft of the Penal Code. The pertinent provision of the RevisedOrdinance of the City of Manila, which was involved in the said case, reads as follows:

Injury to electric apparatus; Tapping current; Evidence. No person shall destroy,mutilate, deface, or otherwise injure or tamper with any wire, meter, or other apparatusinstalled or used for generating, containing, conducting, or measuring electricity,telegraph or telephone service, nor tap or otherwise wrongfully deflect or take anyelectric current from such wire, meter, or other apparatus.

No person shall, for any purpose whatsoever, use or enjoy the benefits of any device bymeans of which he may fraudulently obtain any current of electricity or any telegraph ortelephone service; and the existence in any building premises of any such device shall,in the absence of satisfactory explanation, be deemed sufficient evidence of such use bythe persons benefiting thereby.

It was further ruled that even without the above ordinance the acts of subtractionpunished therein are covered by the provisions on theft of the Penal Code then in force,thus:

Even without them (ordinance), the right of the ownership of electric current is securedby articles 517 and 518 of the Penal Code; the application of these articles in cases ofsubtraction of gas, a fluid used for lighting, and in some respects resembling electricity,is confirmed by the rule laid down in the decisions of the supreme court of Spain ofJanuary 20, 1887, and April 1, 1897, construing and enforcing the provisions of articles530 and 531 of the Penal Code of that country, articles 517 and 518 of the code in forcein these islands.

The acts of "subtraction" include: (a) tampering with any wire, meter, or otherapparatus installed or used for generating, containing, conducting, or measuringelectricity, telegraph or telephone service; (b) tapping or otherwise wrongfullydeflecting or taking any electric current from such wire, meter, or other apparatus; and(c) using or enjoying the benefits of any device by means of which one may fraudulentlyobtain any current of electricity or any telegraph or telephone service.

In the instant case, the act of conducting ISR operations by illegally connecting variousequipment or apparatus to private respondent PLDTs telephone system, through whichpetitioner is able to resell or re-route international long distance calls using respondentPLDTs facilities constitutes all three acts of subtraction mentioned above.

The business of providing telecommunication or telephone service is likewise personalproperty which can be the object of theft under Article 308 of the Revised Penal Code.

Business may be appropriated under Section 2 of Act No. 3952 (Bulk Sales Law), hence,could be object of theft:

Section 2. Any sale, transfer, mortgage, or assignment of a stock of goods, wares,merchandise, provisions, or materials otherwise than in the ordinary course of trade andthe regular prosecution of the business of the vendor, mortgagor, transferor, orassignor, or any sale, transfer, mortgage, or assignment of all, or substantially all, ofthe business or trade theretofore conducted by the vendor, mortgagor, transferor orassignor, or all, or substantially all, of the fixtures and equipment used in and about thebusiness of the vendor, mortgagor, transferor, or assignor, shall be deemed to be a saleand transfer in bulk, in contemplation of the Act. x x x.

In Strochecker v. Ramirez,12 this Court stated:

With regard to the nature of the property thus mortgaged which is one-half interest in

the business above described, such interest is a personal property capable ofappropriation and not included in the enumeration of real properties in article 335 of theCivil Code, and may be the subject of mortgage.

Interest in business was not specifically enumerated as personal property in the CivilCode in force at the time the above decision was rendered. Yet, interest in business wasdeclared to be personal property since it is capable of appropriation and not included inthe enumeration of real properties. Article 414 of the Civil Code provides that all thingswhich are or may be the object of appropriation are considered either real property orpersonal property. Business is likewise not enumerated as personal property under theCivil Code. Just like interest in business, however, it may be appropriated. Following theruling in Strochecker v. Ramirez, business should also be classified as personalproperty. Since it is not included in the exclusive enumeration of real properties underArticle 415, it is therefore personal property.13

As can be clearly gleaned from the above disquisitions, petitioners acts constitute theftof respondent PLDTs business and service, committed by means of the unlawful use ofthe latters facilities. In this regard, the Amended Information inaccurately describes the

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offense by making it appear that what petitioner took were the international longdistance telephone calls, rather than respondent PLDTs business.

A perusal of the records of this case readily reveals that petitioner and respondent PLDTextensively discussed the issue of ownership of telephone calls. The prosecution hastaken the position that said telephone calls belong to respondent PLDT. This is evidentfrom its Comment where it defined the issue of this case as whether or not "theunauthorized use or appropriation of PLDT international telephone calls, service andfacilities, for the purpose of generating personal profit or gain that should haveotherwise belonged to PLDT, constitutes theft."14

In discussing the issue of ownership, petitioner and respondent PLDT gave theirrespective explanations on how a telephone call is generated.15For its part, respondentPLDT explains the process of generating a telephone call as follows:

38. The role of telecommunication companies is not limited to merely providing themedium (i.e. the electric current) through which the human voice/voice signal of thecaller is transmitted. Before the human voice/voice signal can be so transmitted, atelecommunication company, using its facilities, must first break down or decode thehuman voice/voice signal into electronic impulses and subject the same to furtheraugmentation and enhancements. Only after such process of conversion will theresulting electronic impulses be transmitted by a telecommunication company, again,through the use of its facilities. Upon reaching the destination of the call, thetelecommunication company will again break down or decode the electronic impulsesback to human voice/voice signal before the called party receives the same. In otherwords, a telecommunication company both converts/reconverts the human voice/voicesignal and provides the medium for transmitting the same.

39. Moreover, in the case of an international telephone call, once the electronicimpulses originating from a foreign telecommunication company country (i.e. Japan)reaches the Philippines through a local telecommunication company (i.e. privaterespondent PLDT), it is the latter which decodes, augments and enhances the electronicimpulses back to the human voice/voice signal and provides the medium (i.e. electriccurrent) to enable the called party to receive the call. Thus, it is not true that theforeign telecommunication company provides (1) the electric current which transmitsthe human voice/voice signal of the caller and (2) the electric current for the calledparty to receive said human voice/voice signal.

40. Thus, contrary to petitioner Laurels assertion, once the electronic impulses orelectric current originating from a foreign telecommunication company (i.e. Japan)reaches private respondent PLDTs network, it is private respondent PLDT whichdecodes, augments and enhances the electronic impulses back to the humanvoice/voice signal and provides the medium (i.e. electric current) to enable the calledparty to receive the call. Without private respondent PLDTs network, the humanvoice/voice signal of the calling party will never reach the called party. 16

In the assailed Decision, it was conceded that in making the international phone calls,the human voice is converted into electrical impulses or electric current which aretransmitted to the party called. A telephone call, therefore, is electrical energy. It wasalso held in the assailed Decision that intangible property such as electrical energy iscapable of appropriation because it may be taken and carried away. Electricity ispersonal property under Article 416 (3) of the Civil Code, which enumerates "forces ofnature which are brought under control by science."17

Indeed, while it may be conceded that "international long distance calls," the matteralleged to be stolen in the instant case, take the form of electrical energy, it cannot besaid that such international long distance calls were personal properties belonging toPLDT since the latter could not have acquired ownership over such calls. PLDT merely

encodes, augments, enhances, decodes and transmits said calls using its complexcommunications infrastructure and facilities. PLDT not being the owner of said telephonecalls, then it could not validly claim that such telephone calls were taken without itsconsent. It is the use of these communications facilities without the consent of PLDTthat constitutes the crime of theft, which is the unlawful taking of the telephone servicesand business.

Therefore, the business of providing telecommunication and the telephone service arepersonal property under Article 308 of the Revised Penal Code, and the act of engagingin ISR is an act of "subtraction" penalized under said article. However, the AmendedInformation describes the thing taken as, "international long distance calls," and onlylater mentions "stealing the business from PLDT" as the manner by which the gain wasderived by the accused. In order to correct this inaccuracy of description, this case mustbe remanded to the trial court and the prosecution directed to amend the AmendedInformation, to clearly state that the property subject of the theft are the services andbusiness of respondent PLDT. Parenthetically, this amendment is not necessitated by amistake in charging the proper offense, which would have called for the dismissal of theinformation under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Ruleson Criminal Procedure. To be sure, the crime is properly designated as one of theft. Thepurpose of the amendment is simply to ensure that the accused is fully and sufficientlyapprised of the nature and cause of the charge against him, and thus guaranteed of hisrights under the Constitution.

ACCORDINGLY, the motion for reconsideration is GRANTED. The assailed Decision datedFebruary 27, 2006 is RECONSIDERED and SET ASIDE. The Decision of the Court of

Appeals in CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogarof the Regional Trial Court of Makati City, Branch 150, which denied the Motion toQuash (With Motion to Defer Arraignment) in Criminal Case No. 99-2425 for theft, isAFFIRMED. The case is remanded to the trial court and the Public Prosecutor of MakatiCity is hereby DIRECTED to amend the Amended Information to show that the propertysubject of the theft were services and business of the private offended party.

SO ORDERED.

[G.R. No. 119619. December 13, 1996]

RICHARD HIZON, SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGOABRERA, CHEUNG TAI FOOK, SHEK CHOR LUK, EFREN DELA PENA, JONELAURELIO, GODOFREDO VILLAVERDE, ANGELITO DUMAYBAG, DEOMEDES

ROSIL, AMADO VILLANUEVA, FRANCISCO ESTREMOS, ANGEL VILLAVERDE,NEMESIO CASAMPOL, RICHARD ESTREMOS, JORNIE DELA PENA, JESUS

MACTAN, MARLON CAMPORAZO, FERNANDO BIRING, MENDRITO CARPO, LUISDUARTE, JOSEPH AURELIO, RONNIE JUEZAN, BERNARDO VILLACARLOS,

RICARDO SALES, MARLON ABELLA, TEODORO DELOS REYES, IGNACIO ABELLA,JOSEPH MAYONADO, JANAIRO LANGUYOD, DODONG DELOS REYES, JOLLY

CABALLERO and ROPLANDO ARCENAS,petitioners, vs. HONORABLE COURT OFAPPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

PUNO,J.:

This is a petition for review on certiorari of the decision of the Court of Appeals inCA-G.R. CR No. 15417 affirming the decision of the Regional Trial Court, Branch 52,Palawan in Criminal Case No. 10429 convicting petitioners of the offense of illegalfishing with the use of obnoxious or poisonous substance penalized under Presidential

Decree (P.D.) No. 704, the Fisheries Decree of 1975.

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In an Information dated October 15, 1992, petitioners were charged with aviolation of P.D. 704 committed as follows:

That on or about the 30th day of September 1992, at Brgy. San Rafael, Puerto PrincesaCity, Philippines and within the jurisdiction of this Honorable Court, the above-namedaccused crew members and fishermen of F/B Robinson owned by First FishermenFishing Industries, Inc., represented by Richard Hizon, a domestic corporation dulyorganized under the laws of the Philippines, being then the owner, crew members andfishermen of F/B Robinson and with the use of said fishing boat, did then and therewilfully, unlawfully and feloniously the said accused conspiring and confederatingtogether and mutually helping one another catch, take or gather or cause to be caught,taken or gathered fish or fishery aquatic products in the coastal waters of PuertoPrincesa City, Palawan, with the use of obnoxious or poisonous substance (sodiumcyanide), of more or less one (1) ton of assorted live fishes which were illegally caughtthru the use of obnoxious/poisonous substance (sodium cyanide).[1]

The following facts were established by the prosecution: In September 1992,the Philippine National Police (PNP) Maritime Command of Puerto PrincesaCity, Palawan received reports of illegal fishing operations in the coastalwaters of the city. In response to these reports, the city mayor organized TaskForce Bantay Dagat to assist the police in the detection and apprehension ofviolators of the laws on fishing.

On September 30, 1992 at about 2:00 in the afternoon, the Task ForceBantay Dagat reported to the PNP Maritime Command that a boat and severalsmall crafts were fishing by muro ami within the shoreline of Barangay SanRafael of Puerto Princesa. The police, headed by SPO3 Romulo Enriquez, andmembers of the Task Force Bantay Dagat, headed by Benito Marcelo, Jr.,immediately proceeded to the area and found several men fishing in motorizedsampans and a big fishing boat identified as F/B Robinson within the seven-kilometer shoreline of the city. They boarded the F/B Robinson and inspectedthe boat with the acquiescence of the boat captain, Silverio Gargar. In thecourse of their inspection, the police saw two foreigners in the captainsdeck. SPO3 Enriquez examined their passports and found them to be merephotocopies. The police also discovered a large aquarium full of live lapu-lapuand assorted fish weighing approximately one ton at the bottom of the boat.[2] They checked the license of the boat and its fishermen and found them to bein order. Nonetheless, SPO3 Enriquez brought the boat captain, the crew andthe fishermen to Puerto Princesa for further investigation.

At the city harbor, members of the Maritime Command were ordered bySPO3 Enriquez to guard the F/B Robinson. The boat captain and the twoforeigners were again interrogated at the PNP Maritime Commandoffice. Thereafter, an Inspection/Apprehension Report was prepared and theboat, its crew and fishermen were charged with the following violations:

1. Conducting fishing operations within Puerto Princesa coastal waterswithout mayors permit;

2. Employing excess fishermen on board (Authorized--26; On board--36);

3. Two (2) Hongkong nationals on board without original passports.[3]

The following day, October 1, 1992, SPO3 Enriquez directed the boatcaptain to get random samples of fish from the fish cage of F/B Robinson forlaboratory examination. As instructed, the boat engineer, petitioner Ernesto

Andaya, delivered to the Maritime Office four (4) live lapu-lapu fish inside aplastic shopping bag filled with water. SPO3 Enriquez received the fish and inthe presence of the boat engineer and captain, placed them inside a large

transparent plastic bag without water. He sealed the plastic with heat from alighter.[4]

The specimens were brought to the National Bureau of Investigation(NBI) sub-office in the city for examination to determine the method ofcatching the same for record or evidentiary purposes.[5] They were received atthe NBI office at 8:00 in the evening of the same day. The receiving clerk,Edna Capicio, noted that the fish were dead and she placed the plastic bag withthe fish inside the office freezer to preserve them. Two days later, on October3, 1992, the chief of the NBI sub-office, Onos Mangotara, certified thespecimens for laboratory examination at the NBI Head Office in Manila. Thefish samples were to be personally transported by Edna Capicio who was thenscheduled to leave forManila for her board examination in Criminology.[6]On October 4, 1992, Ms. Capicio, in the presence of her chief, took theplastic with the specimens from the freezer and placed them inside twoshopping bags and sealed them with masking tape. She proceeded to her shipwhere she placed the specimens in the ships freezer.

Capicio arrived in Manila the following day, October 5, 1992 andimmediately brought the specimens to the NBI Head Office. On October 7,1992, NBI Forensic Chemist Emilia Rosaldes conducted two tests on the fishsamples and found that they contained sodium cyanide, thus:

FINDINGS:

Weight of Specimen 1.870 kilograms Examinations made on the above-

mentioned specimen gave POSITIVE RESULTS to the test for the presence ofSODIUM CYANIDE x x x

REMARKS:

Sodium Cyanide is a violent poison.[7]

In light of these findings, the PNP Maritime Command of Puerto Princesa City filedthe complaint at bar against the owner and operator of the F/B Robinson, the FirstFishermen Fishing Industries, Inc., represented by herein petitioner Richard Hizon, theboat captain, Silverio Gargar, the boat engineer, Ernesto Andaya, two other crewmembers, the two Hongkong nationals and 28 fishermen of the said boat.

Petitioners were arraigned and they pled not guilty to the charge. As defense,they claimed that they are legitimate fishermen of the First Fishermen Industries, Inc.,a domestic corporation licensed to engage in fishing. They alleged that they catch fish

by the hook and line method and that they had used this method for one month and ahalf in the waters of Cuyo Island. They related that on September 30, 1992 atabout7:00 A.M., they anchored the F/B Robinson in the eastof Podiado Island in Puerto Princesa City. The boat captain and the fishermen took outand boarded their sampans to fish for their food. They were still fishing in theirsampans at 4:00 P.M. when a rubber boat containing members of the PNP MaritimeCommand and the Task Force Bantay Dagat approached them and boarded the F/BRobinson. The policemen were in uniform while the Bantay Dagat personnel were incivilian clothes. They were all armed with guns. One of the Bantay Dagat personnelintroduced himself as Commander Jun Marcelo and he inspected the boat and the boatsdocuments. Marcelo saw the two foreigners and asked for their passports. As theirpassports were photocopies, Marcelo demanded for their original. The captain explainedthat the original passports were with the companys head office in Manila. Marceloangrily insisted for the originals and threatened to arrest everybody. He then ordered

the captain, his crew and the fishermen to follow him to Puerto Princesa. He held themagazine of his gun and warned the captain Sige, huwag kang tatakas, kung hindi

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babarilin ko kayo![8] The captain herded all his men into the boat and followed Marceloand the police to Puerto Princesa.

They arrived at the city harbor at 7:45 in the evening and were met by membersof the media. As instructed by Marcelo, the members of the media interviewed andtook pictures of the boat and the fishermen.[9]

The following day, October 1, 1992, at 8:00 in the morning, Amado Villanueva,one of the fishermen at the F/B Robinson, was instructed by a policemen guarding theboat to get five (5) fish samples from the fish cage and bring them to thepier. Villanueva inquired whether the captain knew about the order but the guard

replied he was taking responsibility for it. Villanueva scooped five pieces of lapu-lapu,placed them inside a plastic bag filled with water and brought the bag to the pier. Theboat engineer, Ernesto Andaya, received the fish and delivered them to the PNPMaritime Office. Nobody was in the office and Andaya waited for the apprehendingofficers and the boat captain. Later, one of the policemen in the office instructed him toleave the bag and hang it on a nail in the wall. Andaya did as he was told and returnedto the boat at10:00 A.M.[10]

In the afternoon of the same day, the boat captain arrived at the Maritimeoffice. He brought along a representative from their head office in Manila who showedthe police and the Bantay Dagat personnel the original passports of the Hongkongnationals and other pertinent documents of the F/B Robinson and its crew. Finding thedocuments in order, Marcelo approached the captain and whispered to him Tandaanmo ito, kapitan, kung makakaalis ka dito, magkikita pa rin uli tayo sa dagat, kung hindikayo lulubog ay palulutangin ko kayo! It was then that SPO3 Enriquez informed thecaptain that some members of the Maritime Command, acting under his instructions,had just taken five (5) pieces of lapu-lapu from the boat. SPO3 Enriquez showed thecaptain the fish samples. Although the captain saw only four (4) pieces of lapu-lapu, hedid not utter a word of protest.[11] Under Marcelos threat, he signed the Certificationthat he received only four (4) pieces of fish.[12]

Two weeks later, the information was filed against petitioners. The case wasprosecuted against thirty-one (31) of the thirty-five (35) accused. Richard Hizonremained at large while the whereabouts of Richard Estremos, Marlon Camporazo andJoseph Aurelio were unknown.

On July 9, 1993, the trial court found the thirty one (31) petitioners guilty andsentenced them to imprisonment for a minimum of eight (8) years and one (1) day to amaximum of nine (9) years and four (4) months. The court also ordered theconfiscation and forfeiture of the F/B Robinson, the 28 sampans and the ton of assortedlive fishes as instruments and proceeds of the offense, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding the accusedSILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGO ABRERA, CHEUNGTAI FOOK, SHEK CHOR LUK, EFREN DELA PENA, JONEL AURELIO, GODOFREDOVILLAVERDE, ANGELITO DUMAYBAG, DEOMEDES ROSIL, AMADO VILLANUEVA,FRANCISCO ESTREMOS, ARNEL VILLAVERDE, NEMESIO CASAMPOL, JORNIE DELACRUZ,JESUS MACTAN, FERNANDO BIRING, MENDRITO CARPO, LUIS DUARTE, RONNIEJUEZAN, BERNARDO VILLACARLOS, RICARDO SALES, MARLON ABELLA, TEODORODELOS REYES, IGNACIO ABELLA, JOSEPH MAYONADO, JANAIRO LANGUYOD, DODONGDELOS REYES, ROLANDO ARCENAS and JOLLY CABALLERO guilty beyond reasonabledoubt of the crime of Illegal Fishing with the use of obnoxious or poisonous substancecommonly known as sodium cyanide, committed in violation of section 33 and penalizedin section 38 of Presidential Decree No. 704, as amended, and there being neither

mitigating nor aggravating circumstances appreciated and applying the provisions of theIndeterminate Sentence Law, each of the aforenamed accused is sentenced to anindeterminate penalty of imprisonment ranging from a minimum of EIGHT (8) YEARS

and ONE (1) DAY to a maximum of NINE (9) YEARS and FOUR (4) MONTHS and to paythe costs.

Pursuant to the provisions of Article 45, in relation to the second sentence of Article 10of the Revised Penal Code, as amended:

a) Fishing Boat (F/B) Robinson;

b) The 28 motorized fiberglass sampans; and

c) The live fishes in the fish cages installed in the F/B Robinson, all of which havebeen respectively shown to be tools or instruments and proceeds of the offense, arehereby ordered confiscated and declared forfeited in favor of the government.

SO ORDERED.[13]

On appeal, the Court of Appeals affirmed the decision of the trial court. Hence,this petition.

Petitioners contend that:

I

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MERE POSITIVERESULTS TO THE TEST FOR THE PRESENCE OF SODIUM CYANIDE IN THE FISHSPECIMEN, ALBEIT ILLEGALLY SEIZED ON THE OCCASION OF A WARRANTLESSSEARCH AND ARREST, IS ADMISSIBLE AND SUFFICIENT BASIS FOR THE PETITIONERSCONVICTION OF THE CRIME OF ILLEGAL FISHING.

II

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE STATUTORYPRESUMPTION OF GUILT UNDER SEC. 33 OF PRESIDENTIAL DECREE NO. 704 CANNOTPREVAIL AGAINST THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE, SUCH THATTHE GRAVAMEN OF THE OFFENSE OF ILLEGAL FISHING MUST STILL BE PROVEDBEYOND REASONABLE DOUBT.

III

THE HONORABLE COURT OF APPEALS ERRED IN NOT REVERSING THE JUDGMENT OFTHE TRIAL COURT AND ACQUITTING THE PETITIONERS.[14]

The Solicitor General submitted a Manifestation in Lieu of Comment praying forpetitioners acquittal.[15]

The petitioners, with the concurrence of the Solicitor General, primarily questionthe admissibility of the evidence against petitioners in view of the warrantless search ofthe fishing boat and the subsequent arrest of petitioners. More concretely, theycontend that the NBI finding of sodium cyanide in the fish specimens should not havebeen admitted and considered by the trial court because the fish samples were seizedfrom the F/B Robinson without a search warrant.

Our constitution proscribes search and seizure and the arrest of persons without ajudicial warrant.[16]As a general rule, any evidence obtained without a judicial warrant isinadmissible for any purpose in any proceeding. The rule is, however, subject to certainexceptions. Some of these are:[17](1) a search incident to a lawful arrest;[18] (2) seizure of evidence in plain view; (3) search of a moving motor vehicle;[19] and(4) search in violation of customs laws.[20]

Search and seizure without search warrant of vessels and aircrafts for violations ofcustoms laws have been the traditional exception to the constitutional requirement of asearch warrant. It is rooted on the recognition that a vessel and an aircraft, like motor

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vehicles, can be quickly moved out of the locality or jurisdiction in which the searchwarrant must be sought and secured. Yielding to this reality, judicial authorities havenot required a search warrant of vessels and aircrafts before their search and seizurecan be constitutionally effected.[21]

The same exception ought to apply to seizures of fishing vessels and boatsbreaching our fishery laws. These vessels are normally powered by high-speed motorsthat enable them to elude arresting ships of the Philippine Navy, the Coast Guard andother government authorities enforcing our fishery laws.[22]

We thus hold as valid the warrantless search on the F/B Robinson, a fishing boat

suspected of having engaged in illegal fishing. The fish and other evidence seized in thecourse of the search were properly admitted by the trial court. Moreover, petitionersfailed to raise the issue during trial and hence, waived their right to question anyirregularity that may have attended the said search and seizure.[23]

Given the evidence admitted by the trial court, the next question now is whetherpetitioners are guilty of the offense of illegal fishing with the use of poisonoussubstances. Again, the petitioners, joined by the Solicitor General, submit that theprosecution evidence cannot convict them.

We agree.

Petitioners were charged with illegal fishing penalized under sections 33 and 38 ofP.D. 704[24] which provide as follows:

Sec. 33. Illegal fishing, illegal possession of explosives intended for illegal fishing;

dealing in illegally caught fish or fishery/aquatic products. -- It shall be unlawful for anyperson to catch, take or gather or cause to be caught, taken or gathered fish orfishery/aquatic products in Philippine waters with the use of explosives, obnoxious orpoisonous substance, or by the use of electricity as defined in paragraphs (l), (m) and(d), respectively, of section 3 hereof: Provided, That mere possession of such explosiveswith intent to use the same for illegal fishing as herein defined shall be punishable ashereinafter provided: Provided, That the Secretary may, upon recommendation of theDirector and subject to such safeguards and conditions he deems necessary, allow forresearch, educational or scientific purposes only, the use of explosives, obnoxious orpoisonous substance or electricity to catch, take or gather fish or fishery/aquaticproducts in the specified area: Provided, further, That the use of chemicals to eradicatepredators in fishponds in accordance with accepted scientific fishery practices withoutcausing deleterious effects in neighboring waters shall not be construed as the use ofobnoxious or poisonous substance within the meaning of this section: Provided, finally,

That the use of mechanical bombs for killing whales, crocodiles, sharks or other largedangerous fishes, may be allowed, subject to the approval of the Secretary.

It shall, likewise, be unlawful for any person knowingly to possess, deal in, sell or in anymanner dispose of, for profit, any fish or fishery/aquatic products which have beenillegally caught, taken or gathered.

The discovery of dynamite, other explosives and chemical compounds containingcombustible elements, or obnoxious or poisonous substance, or equipment or device forelectric fishing in any fishing boat or in the possession of a fisherman shall constitute apresumption that the same were used for fishing in violation of this Decree, and thediscovery in any fishing boat of fish caught or killed by the use of explosives, obnoxiousor poisonous substance or by electricity shall constitute a presumption that the owner,operator or fisherman were fishing with the use of explosives, obnoxious or poisonoussubstance or electricity.

x x x x x x x x x

Sec. 38. Penalties. -- (a) For illegal fishing and dealing in illegally caught fish orfishery/aquatic products.-- Violation of Section 33 hereof shall be punished as follows:

x x x x x x x x x

(2) By imprisonment from eight (8) to ten (10) years, if obnoxious or poisonoussubstances are used: Provided, That if the use of such substances results 1) inphysical injury to any person, the penalty shall be imprisonment from ten (10) to twelve(12) years, or 2) in the loss of human life, then the penalty shall be imprisonment fromtwenty (20) years to life or death;

x x x x x x x x x.[25]

The offense of illegal fishing is committed when a person catches, takes or gathersor causes to be caught, taken or gathered fish, fishery or aquatic products in Philippinewaters with the use of explosives, electricity, obnoxious or poisonous substances. Thelaw creates a presumption that i llegal f ishing has been committedwhen: (a) explosives, obnoxious or poisonous substances or equipment or device forelectric fishing are found in a fishing boat or in the possession of a fisherman; or(b) when fish caught or killed with the use of explosives, obnoxious or poisonoussubstances or by electricity are found in a fishing boat. Under these instances, the boatowner, operator or fishermen are presumed to have engaged in illegal fishing.

Petitioners contend that this presumption of guilt under the Fisheries Decreeviolates the presumption of innocence guaranteed by the Constitution.[26] As early as1916, this Court has rejected this argument by holding that:[27]

In some States, as well as in England, there exists what are known as common lawoffenses. In the Philippine Islands no act is a crime unless it is made so by statute. Thestate having the right to declare what acts are criminal, within certain well-definedlimitations, has the right to specify what act or acts shall constitute a crime, as well aswhat proof shall constitute prima facie evidence of guilt, and then to put upon thedefendant the burden of showing that such act or acts are innocent and are notcommitted with any criminal intent or intention.[28]

The validity of laws establishing presumptions in criminal cases is a settledmatter. It is generally conceded that the legislature has the power to provide that proofof certain facts can constitute prima facie evidence of the guilt of the accused and thenshift the burden of proof to the accused provided there is a rational connection betweenthe facts proved and the ultimate fact presumed.[29]To avoid any constitutionalinfirmity, the inference of one from proof of the other must not be arbitrary and

unreasonable.

[30]

In fine, the presumption must be based on facts and these facts mustbe part of the crime when committed. [31]

The third paragraph of section 33 of P.D. 704 creates a presumption of guilt basedon facts proved and hence is not constitutionally impermissible. It makes the discoveryof obnoxious or poisonous substances, explosives, or devices for electric fishing, or offish caught or killed with the use of obnoxious and poisonous substances, explosives orelectricity in any fishing boat or in the possession of a fisherman evidence that theowner and operator of the fishing boat or the fisherman had used such substances incatching fish. The ultimate fact presumed is that the owner and operator of the boat orthe fisherman were engaged in illegal fishing and this presumption was made to arisefrom the discovery of the substances and the contaminated fish in the possession of thefisherman in the fishing boat. The fact presumed is a natural inference from the factproved.[32]

We stress, however, that the statutory presumption is merely prima facie.

[33]

It cannot, under the guise of regulating the presentation of evidence, operate to preclude the

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accused from presenting his defense to rebut the main fact presumed.[34] At no instancecan the accused be denied the right to rebut the presumption, [35] thus:

The inference of guilt is one of fact and rests upon the common experience ofmen. But the experience of men has taught them that an apparently guilty possessionmay be explained so as to rebut such an inference and an accused person maytherefore put witnesses on the stand or go on the witness stand himself to explain hispossession, and any reasonable explanation of his possession, inconsistent with hisguilty connection with the commission of the crime, will rebut the inference as to hisguilt which the prosecution seeks to have drawn from his guilty possession of the stolengoods.[36]

We now review the evidence to determine whether petitioners have successfullyrebutted this presumption. The facts show that on November 13, 1992, after theinformation was filed in court and petitioners granted bail, petitioners moved that thefish specimens taken from the F/B Robinson be reexamined.[37] The trial court grantedthe motion.[38] As prayed for, a member of the PNP Maritime Command of PuertoPrincesa, in the presence of authorized representatives of the F/B Robinson, the NBIand the local Fisheries Office, took at random five (5) live lapu-lapu from the fish cageof the boat. The specimens were packed in the usual manner of transporting live fish,taken aboard a commercial flight and delivered by the same representatives to the NBIHead Office in Manila for chemical analysis.

On November 23, 1992, Salud Rosales, another forensic chemist of the NBI inManila conducted three (3) tests on the specimens and found the fish negative for thepresence of sodium cyanide,[39] thus:

Gross weight of specimen = 3.849 kg.

Examination made on the above-mentioned specimens gave NEGATIVE RESULTS to thetests for the presence of SODIUM CYANIDE.[40]

The Information charged petitioners with illegal fishing with the use of obnoxiousor poisonous substance (sodium cyanide), of more or less one (1) ton of assorted livefishes. There was more or less one ton of fishes in the F/B Robinsons fish cage. Itwas from this fish cage that the four dead specimens examined on October 7, 1992 andthe five live specimens examined on November 23, 1992 were taken. Though all thespecimens came from the same source allegedly tainted with sodium cyanide, the twotests resulted in conflicting findings. We note that after its apprehension, the F/BRobinson never left the custody of the PNP Maritime Command. The fishing boat wasanchored near the city harbor and was guarded by members of the Maritime Command.[41] It was later turned over to the custody of the Philippine Coast Guard Commander ofPuerto Princesa City.[42]

The prosecution failed to explain the contradictory findings on the fish samples andthis omission raises a reasonable doubt that the one ton of fishes in the cage werecaught with the use of sodium cyanide.

The absence of cyanide in the second set of fish specimens supports petitionersclaim that they did not use the poison in fishing. According to them, they caught thefishes by the ordinary and legal way, i.e., by hook and line on board theirsampans. This claim is buttressed by the prosecution evidence itself. Theapprehending officers saw petitioners fishing by hook and line when they came uponthem in the waters of Barangay San Rafael. One of the apprehending officers, SPO1Demetrio Saballuca, testified as follows:

ATTY. TORREFRANCA ON CROSS-EXAMINATION:

: I get your point therefore, that the illegal fishing supposedly conducted at SanRafael is a moro ami type of fishing [that] occurred into your mind and that was madeto understand by the Bantay Dagat personnel?

: Yes, sir.

: Upon reaching the place, you and the pumpboat, together with the two BantayDagat personnel were SPO3 Romulo Enriquez and Mr. Benito Marcelo and SPO1 Marzan,you did not witness that kind of moro ami fishing, correct?

: None, sir.

:In other words, there was negative activity of moro ami type of fishing on September30, 1992 at 4:00 in the afternoon at San Rafael?

: Yes, sir.

: And what you saw were 5 motorized Sampans with fishermen each doing a hookand line fishing type?

: Yes, sir. More or less they were five.

: And despite the fact you had negative knowledge of this moro ami type of fishing,SPO3 Enriquez together with Mr. Marcelo boarded the vessel just the same?

: Yes, sir.

x x x x x x x x x.[43]

The apprehending officers who boarded and searched the boat did not find any sodiumcyanide nor any poisonous or obnoxious substance. Neither did they find any trace ofthe poison in the possession of the fishermen or in the fish cage itself. An Inventorywas prepared by the apprehending officers and only the following items were found onboard the boat:

ITEMS QUANTITY REMARKS

F/B Robinson (1) unit operating

engine (1) unit ICE-900-BHP

sampans 28 units fiberglass

outboard motors 28 units operating

assorted fishes more or less 1 ton livehooks and lines assorted

x x x.[44]

We cannot overlook the fact that the apprehending officers found in the boatassorted hooks and lines for catching fish.[45] For this obvious reason, theInspection/Apprehension Report prepared by the apprehending officers immediatelyafter the search did not charge petitioners with illegal fishing, much less illegal fishingwith the use of poison or any obnoxious substance.[46]

The only basis for the charge of fishing with poisonous substance is the result ofthe first NBI laboratory test on the four fish specimens. Under the circumstances of thecase, however, this finding does not warrant the infallible conclusion that the fishes inthe F/B Robinson, or even the same four specimens, were caught with the use of

sodium cyanide.

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