TITLE 10 - Criminal Law II Case Digests (The Revised Penal Code)

REVISED PENALCODE: CRIMINAL LAW II

CASES AND DOCTRINES, Arellano University School of Law

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PEOPLE vs DEL ROSARIO 359 SCRA 166, G.R. No. 131036, June 20, 2001 Robbery with Homicide FACTS: On FACTS: On September 26, 1992, Emelita Paragua left their house at Balic-Balic, Sta. Rita, Olongapo City to go to her stall in the public market. Raquel Lopez, the 11-year old niece of Paragua, was left behind as she had no classes that day, a Saturday. Notified of the news that their house was on fire, Paragua went home. Paragua saw that the sala set, their merchandise and the cassette were burned. When she entered the kitchen, she saw her niece lying on her stomach with a raincoat covering her head and her neck and arms tied with CATV wire. Parts of her hand and her thigh were burned. Raquel Lopez was already dead when her aunt discovered discovered her. She likewise discovered discovered that six pieces of her jewelries were missing. It was also found that the sala was set on fire and he found the items therein burned. Likewise the two bedrooms. Police located the body of Raquel Lopez in the kitchen. Her head was covered with a pink raincoat and around her neck was a CATV wire. She was lying face down, her hands behind her back. On October 2, 1992, the Olongapo City police received received a call from the Subic police that a cert ain Donato del Rosario surrendered to police officer Fernando Morales, the brother-in-law of his common-law wife, Ruby Tan. Del Rosario, even without being asked, told them that he really surrendered to Morales because he was being bothered by his conscience and that he was very willing to accompany them to recover the stolen items. He also volunteered volunteered the information as to where he sold the jewelries that he took from the house of Emelita Paragua. Thereafter the policemen from Olongapo and Donato del Rosario proceeded to the places mentioned by the latter — Barrio Barretto, Olongapo City, where the "Lovely Kahael Pawnshop" was located, and Barangay Magsaysay, Iba, Zambales. Del Rosario was not even handcuffed at the time. At the Lovely Kahael pawnshop del Rosario pointed out the jewelry that he had pawned. He also signed the pawnshop ticket in order that a wedding band and a diamond ring with the letter "E" could be redeemed. At the pawnshop he was identified by Florencio Gamboa, the OIC/appraiser therein. Afterwards they proceeded to Magsaysay, Iba, Zambales to the shop of Rogelio Adriano. They were not able to immediately immediately recover a bracelet and a 7-day ring that were sold to Adriano, a watch repairer and a buyer/seller buyer/seller of second hand jewelry, as he had given them to his son for safekeeping. However, his son, Rogelio Adriano, Jr., returned the jewelry to the police some days later. Both Adrianos identified del Rosario as the person who sold them the jewelry. After the jewelry was recovered, the police called Emelita Paragua who positively identified identified the jewels as hers. Del Rosario was then brought to the Olongapo police station. A lawyer, Atty. Norberto dela Cruz, was called in to assist del Rosario. During the custodial investigation, Atty. dela Cruz was present the whole time. He informed del Rosario what was stated in the waiver/confession. It was



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only when del Rosario said that he fully understood its contents that Atty. dela Cruz signed it as counsel. Police brought the accused and Atty. dela Cruz to Assistant City Prosecutor Martinez for subscription. As to be expected, Donato del Rosario’s account of the day i n question, September 26, 1992, was diffe rent. Accused-appellant relied on alibi as a defense to belie the accusation against him. However, nobody was presented to corroborate his statements as to his whereabouts on the day when the robbery, homicide, and arson took place. The trial court then decided to convict the accused of the crime of robbery with homicide.

Del Rosario contends that it is essential to prove the intent to rob and that the intent to rob must come first before the killing transpired. He is of the impression that not all the essential requisites of the crime of robbery with homicide were proven. Hence, this appeal. ISSUE: Whether ISSUE: Whether or not the essential requisites of the special complex crime of robbery with homicide are present HELD: Yes. HELD: Yes. In the offense of robbery with homicide, a crime primarily classified as one against property and not against persons, the prosecution has to firmly establish the following elements: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. Animus lucrandi or intent to gain, is an internal act which can be established through the overt acts of the offender. Although proof as to motive for the crime is essential when the evidence of the theft is circumstantial, the intent to gain or animus lucrandi is the usual motive to be presumed from all furtive taking of useful property appertaining to a nother, unless special circumstances circumstances reveal a different intent on the part of the perpetrator...” The intent to gain may be presumed from the proven unlawful taking." Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) (apoderamiento) and appropriation by the offender of the things subject of the robbery. In this case, it was apparent that the reason why acc used-appellant stole the jewelry of Emelita Paragua was because he intended to gain by them. He had already admitted that he needed money to marry his commonlaw wife. If gaining through unlawful means was farthest from the mind of the accused, why then did he pawn and sell the jewelry he had taken from Emelita Paragua? The accused vehemently denies having robbed the house of Emelita Paragua. But the testimonies of Gamboa and the Adrianos that it was the accused who pawned and sold, respectively, respectively, the jewelry to them shows that the a ccused had in his possession the stolen jewelry. His failure to refute this must be taken against him. It is a rule established by an abundance of jurisprudence that when stolen property is found in the possession of one, not the owner, without a satisfactory explanation of his possession, he will be presumed to be the thief. This rule is in accordance with the disputable presumption "that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act."



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The court concluded that accused-appellant went to the house of Emelita Paragua because he intended to rob her. Lamentably, Paragua’s niece, Raquel Lopez, was in the way and she had to be dealt with in the direct manner possible. And the means resorted to by the accused-appellant was to strangle her until her very last breath. Raquel Lopez was killed on the occasion of the robbery because she was the only one in the house at that time and the only witness to the crime that accused-appellant committed. Her autopsy report revealed revealed that she was already dead before the fire started, thus eliminating any inference that arson was committed to finish her off. The arson was but a ruse to cover up the t heft. It is immaterial whether the killing transpired before or after the robbery. In the crime of robbery with homicide, the homicide may precede robbery or may occur after robbery. What is essential is that there is a nexus, an intimate connection between robbery and the killing whether the latter be prior or subsequent to the former, or whether both crimes be committed committed at the same time. RATIO: In the offense of robbery with homicide, a crime primarily classified as one against property and not against persons, the prosecution has to firmly establish the following elements: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime o f homicide, which is therein used in a generic sense, was committed.

People vs. Barruga G.R. No. L-42744, March 27, 1935 Robbery with Homicide FACTS: The accused Benjamin Barruga, armed with a bolo, entered through the window of a house inhabited by Bon Uan Yap, a copra and abaca dealer with a shop in the basement of said house. Barruga allegedly took with him money contained in a wooden box amounting to P400 which are believed to be earnings from Bon Uan Yap’s shop. Bon Uan Yap, his son Antonio and nephew Fidencio were all assaulted in their sleep by the accused with his bolo and caused them to sustain several mortal wounds in different parts of the body, and as a result of which, the victims died instantaneously. instantaneously. During investigation at the crime scene, however, it was found that the drawer of the shelf where Bon Uan Yap keeps his money which was usually closed and locked was apparently bloodstained. It was opened but it turned out that that it did not contain any money, but only with vouchers and cigarettes. The iron safe in the shop was bloodstained but was still locked.

As to the nature of the crime committed, the lower court found that the commission of the robbery was not satisfactorily proved, because Bon Uan Yap, before retiring, might have taken the money from the drawer and put it in the iron safe which he had in the store; that it was not proved that this safe was opened and that the money in question was not found therein. Nevertheless considering a conviction of the complex



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crime of robbery with homicide more favorable favorable to the accused than a conviction for three crimes of murder, the trial judge found the defendant guilty as charged, and taking into consideration the aggravating circumstances of alevosia, nocturnity, and morada sentenced him to suffer the death penalty, to indemnify the heirs of the three deceased in the sum of P1,000, and to pay the costs. The accused then appealed the decision of the lower court. ISSUE: Whether or not the accused is guilty of robbery with homicide HELD: No. The finding of the trial judge that the robbery was not satisfactorily proved is in accordance with the evidence, because the prosecution failed to show that the money in question was in the drawer when Bon Uan Yap and the two boys were killed, that is, that Bon Uan Yap had not transferred it to the iron safe before retiring for the night. If there was no money left in the drawer that could be taken, the crime of robbery could not be committed, and the purpose for which Bon Uan Yap and the two children were slain was defeated. The court cannot assent to the conviction of the defendant for the complex crime of robbery with homicide, when the evidence is insufficient to sustain the charge of robbery, because such a conviction might appear to be more favorable to him than conviction for three crimes of murder. Where, in a trial for the complex offense of robbery with double homicide, the proof fails to support the charge of robbery, the penalties appropriate to each of the homicides should be imposed, to be successively served in conformity with article 87 of the Penal Code, in relation with No. 2 of article 88 of the same Code. It has likewise been decided by the court tha t if a person is charged with the complex crime of robbery with homicide, and the evidence is not sufficient to prove the robbery, and accused should be convicted of each homicide alleged and proved, although the number of persons that may have been killed is immaterial in the complex crime of robbery with homicide. The court therefore, found the appellant not guilty of the complex crime of robbery with homicide, as found by the lower court, but of three crimes of murder, since the facts alleged and proved constitute three separate crimes, that is, the killing of three persons by different acts, and it was alleged and proved beyond any reasonable doubt that the appellant slew the three persons treacherously while they lay asleep; and since it was proved that the deceased were murdered in their own dwelling, and the appellant gained access thereto by climbing through a window, and these two aggravating circumstances circumstances are not offset by any mitigating circumstance, circumstance, the appellant must be, and he hereby is, sentenced to suffer the penalty of death for each of the three crimes, although the sentence cannot be executed more than once, and to indemnify the heirs of each of the deceased persons in the sum of P1,000. RATIO: In a trial for the complex offense of robbery with double homicide, the proof fails to support the charge of robbery, the penalties appropriate to each of the homicides should be imposed.



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Cariaga vs CA 358 SCRA 583, G.R. No. 143561, June 6, 2001 Qualified Theft FACTS: Luis Miguel Aboitiz, employed as Systems Analyst of the Davao Light & Power Company, Inc. (DLPC), whose duty was to devise systems, procedures or controls to promote efficiency, prevent losses due to waste, pilferage or theft of company property, etc., received reports that some private electricians were engaged in the clandestine sale of DLPC materials and supplies. He initiated a covert operation with the following objectives: (1) ascertain how DLPC materials were being stolen, the frequency of the thefts, who were perpetrating the thefts; and (2) `catch' at least, one (1) DLPC employee employee that may be involved. He then hired one Florencio Siton, a welder by occupation and a Civilian Home Defense Forces (CHDF) member, as his undercover agent under the pseudonym 'Canuto Duran', an 'electrician from Kabakan, Cotabato.' 'Canuto Duran' struck an acquaintance with one Ricardo Cariaga, a private electrician. He told Ricardo that his boss ordered him to buy electrical materials to be brought to Diwalwal. Ricardo offered to supply 'Canuto Duran' with electrical materials, saying that he has a cousin from whom he can procure the same. 'Canuto' purchased small electrical wires which, according to Ricardo, came from his cousin, Jonathan Cariaga. Later on, Ricardo introduced 'Canuto' to Jonathan at Miguel Store. It turned out that Jonathan was the assigned driver of DLPC Service Truck 'S143. 'Canuto' inquired from Jonathan if he could supply him with two (2) 15 KVA transformers. Jonathan replied that he could for P16,000. 'Canuto' placed an order for the transformers. The deal did not materialize, however, as 'Canuto's' boss (Miguel Aboitiz) who would provide the funds happened to be out of town. Jonathan appeared piqued. To appease him, 'Canuto' assured him that they shall continue their 'business' relationship. Not long after, he placed an order for a lightning arrester. Ricardo, Jonathan and 'Canuto' agreed to meet at the corner of Jacinto and Arellano Streets. Jonathan got DLPC Truck 'S-143' which was inside the DLPC Compound at Ponciano Reyes Street and drove it to the designated meeting place, leaving 'Canuto' and Ricardo at Miguel Store. After a while, Ricardo and 'Canuto' followed. On the way, 'Canuto gave Ricardo P1,800. At the meeting place, Ricardo gave the money to Jonathan, after which the latter got a lightning arrester from his truck's toolbox and handed it to Ricardo, who, in turn gave it to 'Canuto'. A few months later, Ricardo accompanied 'Canuto' to Jonathan's house to get a roll of Electrical Wire No. 2 (300 meters long) valued P5,010 and 2 lightning arresters with cutout, valued P1,185.75 each, or P2,371.50 for both from Jonathan. 'Canuto' paid P2,500.00 only for the items. He gave the money to Ricardo; Ricardo, in turn, gave it to Jonathan.



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Siton's undercover work came to an abrupt end on when members of Sgt. Villasis' team 'apprehended' 'Canuto' and turned him over, including the electrical wires that he previously purchased from Jonathan through Ricardo, to the San Pedro Patrol Station. The team was unable to arrest Ricardo as he had already left when the team arrived at his house. 'Canuto Duran' 'confessed' in order to persuade Ricardo – and the others who were involved – to likewise come out with the truth. Thus, Ricardo confessed to their crimes. Ricardo revealed that he acted as a fence for his cousin, Jonathan Cariaga and 'Canuto Duran', that the items that 'Canuto Duran' bought from Jonathan, thru him, were DLPC properties. Jonathan Cariaga was then convicted of the crime of qualified theft by the trial court. ISSUE: Whether ISSUE: Whether or not the accused is guilty of qualified theft despite him being a mere laborer HELD: Yes. HELD: Yes. The information alleged that petitioner was an employee of DLPC; that he had access to the electrical supplies of said company; and that with grave abuse of confidence; he stole electrical materials belonging to DLPC. The prosecution established that petitioner who was permanently assigned as driver of Truck "S-143" had charge of all the DLPC equipment and supplies kept in his vehicle, including lightning arresters, cut-out and wires, which were generally used for the installation of transformers and power lines; and specifically stored therein for emergency operations at night when the stockroom is closed. While the mere circumstance that the petitioner is an employee or laborer of DLPC does not suffice to create the relation of confidence and intimacy that the law requires to designate the crime as qualified theft, it has been held that access to the place where the taking took place or access to the stolen items changes the complexion of the crime committed to that of qualified theft. Thus, theft by a truck driver who takes the load of his truck belonging to his employer is guilty of qualified theft as was proven in this case. The trial court correctly considered petitioner's use of a motor vehicle in the commission of the crime as a generic aggravating circumstance thus raising the penalty to its maximum. While the aggravating circumstance of "by means of motor vehicle" was not alleged in the information, there is evidence that the same was employed to facilitate the commission of the crime. A generic aggravating circumstance may be proved even if not alleged. The theft could not have been effected without the aid of the motor vehicle, as proven by the prosecution, the service truck was used in storing and then transporting the stolen electrical materials to the place where they were sold. RATIO: Access to the place where the taking took place or access to the stolen items changes the complexion of the crime committed to that of qualified theft.



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People vs. Sison 322 SCRA 345, G.R. No. 123183, January 19, 2000 Qualified Theft FACTS: Appellant FACTS: Appellant Sison held the position of Branch Operation Officer of the Philippine Commercial International Bank (PCIB). As such, he was assigned to different branches until his last detail at the PCIB Luneta Branch. The Branch Cashier, the Commercial Account Officer and the Accountant, were under his direct supervision and control. Appellant affirmed that he was the primary control officer directly responsible responsible for the day to day operations of the branch, including custody or the cash vault. Appellant, in turn, was under the supervision of Helen U. Fargas, Branch Manager of the PCIB Luneta Branch. On April 23, 1992, Fargas, representing PCIB, filed an Affidavit-Complaint against appellant in the Office of the City Prosecutor of Manila for two (2) counts of estafa. She averred that appellant facilitated the crediting of two (2) fictitious remittances in the amounts of P3,250,000.00 and P4,755,000 in favor of Solid Realty Development Corporation, Corporation, an equally fictitious account, and then later the withdrawal of P6,000,000.00 from the PCIB Luneta Branch. On November 18, 1992, the Office of the City Prosecutor of Manila issued a Resolution Resolution recommending that appellant be charged with qualified theft, not estafa, considering that as Branch Operation Officer, he had full control of and unimpeded access to the bank vault. It was known in the evidence that Solid Electronics Inc. opened a savings account in the PCIB Luneta Branch sometime before 1989. On October 1989, an accountant of Solid Electronics Corporation, had the account closed. Said deposit account, however, was subsequently revived and, renamed as that of Solid Realty Development Development Corporation. Annabelle Labores, the Branch Accountant of PCIB Luneta Branch, discovered in her routine quarterly examination of the alphabetical listing of the accounts of PCIB Luneta Branch clients, that the closed savings account under the account name Solid Electronics, Inc. was already under a different account name, that is, Solid Realty Development Corporation and that the change of the original account name was made without any written request from Solid Electronics, Inc., the original listed depositor. Labores further testified that requests for change in account names are ordinarily referred to Cecil Fante, the Section Head of the Commercial Account. However, Fante did not have sole access. In fact, appellant controlled her access since it is he who assigns the computer password to Fante who can only effectuate a change in the account name after typing in the correct password. Appellant, thus, can also effectuate change in the account name of a client by using the password of Fante or his own. Labores testified that she discovered a discrepancy between the balance in the Miscellaneous Assets and that in the Sundry CreditMiscellaneous Assets in the books of account of the Luneta Branch of the bank. They should bear the same total, but there was a difference of



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P8,005,000.00. Labores reported the discrepance to appellant. Appellant told her that he had already made the necessary adjustments. Labores traced the source of the P8,0005,000.00 to two (2) telegraphic fund transfers in the amount of P3,250,000.00 and P4,755,000.00 purportedly from the PCIB Cabacan Branch in North Cotabato. Mary Joy de Leon, then the Domestic Remittance Clerk of PCIB Luneta Branch, testified that she processed a telegraphic advice from PCIB Cabacan Branch directing the crediting of the amount of P3,250,000.00 in the account of Solid Realty Development Corporation. Each cable advice from a PCIB branch is tested on a computerized key by the Branch Operation Officer of the receiving branch to verify its authenticity. Thus, de Leon gave the debit and credit tickets to appellant Sison who, as Branch Operation Officer of the PCIB Luneta Branch, had the sole access to the computerized testing key. Cenen Matias testified that he was detailed at the Domestic Remittance Department of the PCIB Luneta Branch to handle telegraphic remittances. He received and processed a cable advice to credit P4,755,000.00 in the account of Solid Realty Development Corporation. He prepared the debit and credit tickets and turned them over to appellant Sison who approved and signed the same. Crispin Salvador, Branch Manager of PCIB Cabacan Branch, North Cotabato, testified that his branch did not send any telegraphic fund transfer to PCIB Luneta Branch. Mario Caballero testified that he was the Branch Cashier of PCIB Luneta Branch in. As such, he held one of the only two (2) keys to the cash vault. Appellant held the other key. The cash vault could not be opened without the two (2) keys being used simultaneously. During that time, appellant relieved him from his post and assigned him to the Accounting Department. Appellant asked him to surrender his key to the cash vault. He did as he was told. Thus, appellant now in possession of the two (2) keys to the cash vault, had unimpeded access thereto. Villar testified that he replaced Caballero and was designated as acting bank cashier and that appellant should have turned over to him one (1) of the two (2) keys to the cash vault, but he did not. Villar was never given the key. Ma. Gabriela C. Bueno, a Bank Teller of PCIB Luneta Branch, testified that appellant Sison made a back office withdrawal in the amount of P3,500,000.00 in behalf of depositor Solid Realty Development Corporation. Corporation. A back office withdrawal is one done by a bank officer for a client or where the former signs, verifies, checks and approves the withdrawal slip himself. Bueno did not have enough cash to cover the amount, and so appellant ordered her to prepare a cash requisition slip. Appellant returned the same and asked her to sign in the box with the heading, "Received" to signify that she processed the transaction. The amount of P3,500,000.00 in cash was, however, actually received in hand by appellant. Emily Martinez, another Bank Teller of PCIB Branch, gave a testimony similar to that of Bueno. The back office withdrawal that she processed was in the amount of P2,500,000.00 which the appellant received.



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Helen Fargas, PCIB Luneta Branch Manager, testified that appellant submitted to her his letter of resignation dated March 10, 1992 effective a month later. He cited his health and prospective overseas overseas employment as reasons for his resignation. But since then, appellant disappeared until his arrest on June 15, 1993. Defendant simply denied everything. everything. However, the trial court found him guilty of qualified theft. He filed an appeal arguing that the prosecution failed to prove his guilt beyond reasonable doubt since the prosecution did not offer any direct evidence that he stole and carried away from the cash vault of PCIB Luneta Branch the amount of six million pesos, but only managed to present circumstantial evidence which did not allegedly prove his guilt beyond reasonable doubt. ISSUE: Whether ISSUE: Whether or not the accused is guilty of qualified theft HELD: Yes. HELD: Yes. Circumstantial evidence is not a "weaker" form of evidence vis-à-vis direct evidence. The Rules of Court do not distinguish between direct evidence and evidence of circumstances insofar as their probative value is concerned. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case, the trier of fact must be convinced beyond a reasonable doubt as to the guilt of the accused. Under Section 4, Rule 133 of the Revised Rules of Court, circumstantial evidence is sufficient for conviction if there is more than one circumstance, the facts from which the inference is derived, are proven, and the combination of all the circumstances produces moral certainty as to convict beyond a reasonable doubt. There is no denying that the following facts were proven by prosecution: 1. that appellant had access and solely controlled controlled the access of Cecil Fante, to the computer system for changing account names of clients; 2. that appellant solely controlled access to the computerized testing key for telegraphic fund transfers; 3. that Solid Electronics, Inc. is not the same entity as Solid Realty Development Development Corporation; 4. that Solid Electronics, Inc. closed its saving account with PCIB Luneta Branch; 5. that Solid Realty Development Development Corporation does not exist and never itself opened a savings account with PCIB Luneta Branch; 6. that appellant made two (2) back office withdrawals in the aggregate amount of P6,000,000.00 in behalf of Solid Realty Development Corporation; 7. that appellant solely controlled the access to the cash vault; 8. that the (2) telegraphic fund transfers from the PCIB Cabacan Branch in the aggregate amount of P8,005,000.00 were fictitious, and 9. that appellant disappeared immediately after he tendered his resignation letter which was to be effective still a month later and without claiming from his employer the remaining monetary benefits due him. The crime perpetuated by appellant against his employer, the Philippine Commercial and Industrial Bank (PCIB), is qualified theft. Appellant could not have committed the crime had he not been holding the position of Luneta Operation Officer which gave him not only sole access to the bank vault but also control of the access of all bank employees in that branch, except the Branch Manager, to confidential and highly delicate



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computerized security systems designed to safeguard, among others, the integrity of telegraphic fund transfers and account names of bank clients. The management of the PCIB reposed its trust and confidence in the appellant as its Luneta Branch Operation Officer, and it was this trust and confidence which he exploited to enrich himself to the damage and prejudice of PCIB in the amount of P6,000,000.00. RATIO: The crime committed by the accused is qualified theft, defined and penalized under Article 310 of the Revised Penal Code. As has been synthesized above, his key position in the PCI Bank being its operations officer in the Luneta Branch create a relation of dependence between him and his employer. Such relation in turn established a high degree of trust and confidence in him by the Bank, which he gravely abused when, taking advantage of his position and with intent to gain, he took from the cash vault, carried away and appropriated the aggregate cash amount of P6,000,000.00, without the knowledge and consent of his employer and to its damage and prejudice. Under Article 308 of the said Code, the elements of the crime of theft are: 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 wi thout the consent of the owner; and 5. that the taking be accomplished without the u se of violence against intimidation of persons or force upon things. Theft becomes qualified when any of the foll owing circumstances is present: 1. the theft is committed by a domestic servant; 2. the theft is committed with grave abuse of confidence; 3. the property stolen is a (a) motor vehicle, (b) mail matter or (c) large cattle; 4. the property stolen consists of coconuts taken from th e premises plantation; 5. the property stolen is fish taken from a fishpond or fishery; and 6. the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.



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Roque vs. People 444 SCRA 98, G.R. No. 138954, November 25, 2004 Qualified Theft FACTS: One Antonio Salazar is a depositor of the Basa Air Base Savings and Loan Association Inc. (BABSLA). He disclosed that around July 1990 he heard that the funds of other depositors were missing inside the BABSLA and were supposedly clandestinely circulating around the base. Prodded by this news, and considering that the balance in his passbook was P46,000, he went to the BABSLA to withdraw P40,000, but was informed that his balance at the BABSLA was insufficient to cover the withdrawal. He was not allowed to withdraw. Rosalina de Lazo, the general manager, informed him that several withdrawals were made on his account amounting to P30,500, as evidenced by three (3) withdrawal slips. Included among these withdrawal slips is one with the amount of P10,000. Salazar claimed that the signature appearing on said withdrawal slip was not his signature. He does not personally know who made the withdrawal of P10,000. Salazar assumed that the one in control of the funds made the withdrawal. Asuncion Galang Roque, being then employed as teller of the BABSLA, and as such was authorized and reposed with the responsibility to receive and collect capital contributions from its member/contributors member/contributors of said corporation, and having collected and received in her capacity as teller of the BABSLA the sum P10,000.00, said accused, with intent of gain, with grave abuse of confidence and without the knowledge and consent of said corporation, took, stole and carried away the amount of P10,000.00, by making it appear that a certain depositor Antonio Salazar withdrew from his savings account, when in truth and in fact Salazar did not withdraw the said amount. She was then convicted of the crime of qualified theft by the trial court. The Court of Appeals affirmed the trial court’s de cision, hence this appeal.

ISSUES: 1. Whether or not qualified theft may be committed when the personal property is in the lawful possession of the accused prior to the commission commission of the alleged felony? 2. Whether or not the elements of qualified theft were proven? HELD: 1. No. A person tasked to receive and collect capital contributions and having collected and received in her capacity as teller as alleged in the information cannot be guilty of theft. In t he present case, what is involved is the possession of money in the capacity of a bank teller. The Court considers deposits received by a teller in behalf of a bank as being only in the material possession of the teller. This



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interpretation applies with equal force to money received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals. Such is only material possession. Juridical possession remains with the bank. 2. No. The elements of qualified theft include the elements of theft and any of the circumstances enumerated in Article 310 of the Revised Penal Code (RPC). The elements of theft, which is defined in Artilce 308 of the RPC, are the following: “there are five essential elements which constitute the crime of theft, namely: (1) Taking of personal property; (2) that said property belongs to another; (3) that said taking be done with intent to gain; (4) that, further, it be done without the owner's consent; and (5) finally, that it be accomplished w ithout the use of violence o r intimidation against persons, nor of force upon things.”

The specific qualifying circumstance in Article 310 of the RPC which the information indicated was that the felony was committed with grave abuse of confidence. Hence, to warrant a conviction, the prosecution should have proven the following elements: elements: 1. Taking of personal property. 2. That the said property belongs to another. 3. That the said t aking be done with intent to gain. 4. That it be done without the owner's consent. 5. That it be accomplished accomplished without the use of violence or intimidation against persons, nor of force upon things. 6. That it be done with grave abuse of confidence. Regarding the first element, the taking of personal property, the prosecution was not able to present direct evidence that petitioner took the P10,000. The prosecution attempted to prove the taking through circumstantial evidence. One of the pieces of evidence that the prosecution adduced and the trial court and Court of Appeals relied on heavily for the conviction was the withdrawal slip for P10,000. Antonio Salazar disowned the signature on the withdrawal slip. However, he also indicated that he did not know who made the withdrawal. Rosalina de Lazo, the general manager testified that the initial on the withdrawal slip, was the customary signature of petitioner. She, however, did not intimate the significance of petitioner's initial on the withdrawal slip. A careful inspection of all the withdrawal slips, including the withdrawal slip stated above, shows that the date and the initial of petitioner were written across the stamped word "paid." This indicates that petitioner's initial was placed in her capacity as a teller which, therefore, only proves that this transaction passed through her hands in such capacity. It does not in any manner show that petitioner prepared the withdrawal slip or that the proceeds of the withdrawal increased her patrimony. In the presumption availed of by the lower courts the property found in the possession of the accused, which is the withdrawal slip, is not stolen property. Furthermore, the presumption the lower court made was not that the petitioner stole anything, but rather that the petitioner was the maker of the withdrawal slip. Consequently, there is no basis for the finding that the withdrawal slip was prepared by the petitioner.



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From the foregoing discussion it is plain that the prosecution failed to prove by direct or sufficient circumstantial evidence that there was a taking of personal property by petitioner. A discussion of the other elements of qualified theft mentioned above is not necessary. Even if the other elements were satisfactorily proven, the first and most basic element of qualified theft was not established. The prosecution was, therefore, unsuccessful in proving beyond reasonable doubt that the petitioner committed committed the crime of qualified theft. Therefore, the accused was acquitted.

TITLE 10 - Criminal Law II Case Digests (The Revised Penal Code)

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