SECOND DIVISION

G.R. No. 170863               March 20, 2013

ENGR. ANTHONY V. ZAPANTA, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

BRION, J.:

We resolve the petition for review on certiorari1 filed by petitioner Engr. Anthony V. Zapanta, challenging the June 27, 2005 decision2 and the November 24, 2005 resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 28369. The CA decision affirmed the January 12, 2004 decision4 of the Regional Trial Court (RTC) of Baguio City, Branch 3, in Criminal Case No. 20109-R, convicting the petitioner of the crime of qualified theft. The CA resolution denied the petitioner's motion for reconsideration.

The Factual Antecedents

An April 26, 2002 Information filed with the RTC charged the petitioner, together with Concordia O. Loyao, Jr., with the crime of qualified theft, committed as follows:That sometime in the month of October, 2001, in the City of Baguio, Philippines, and within the jurisdiction of [the] Honorable Court, xxx accused ANTHONY V. ZAPANTA, being then the Project Manager of the Porta Vaga Building Construction, a project being undertaken then by the Construction Firm, ANMAR, Inc. under sub-contract with A. Mojica Construction and General Services, with the duty to manage and implement the fabrication and erection of the structural steel framing of the Porta Varga building including the receipt, audit and checking of all construction materials delivered at the job site – a position of full trust and confidence, and CONCORDIO O. LOYAO, JR., alias "JUN", a telescopic crane operator of ANMAR, Inc., conspiring, confederating, and mutually aiding one another, with grave abuse of confidence and with intent of gain, did then and there willfully, unlawfully and feloniously take, steal and carry away from the Porta Vaga project site along Session road, Baguio City, wide flange steel beams of different sizes with a total value of P2,269,731.69 without the knowledge and consent of the owner ANMAR, Inc., represented by its General Manager LORNA LEVA MARIGONDON, to the damage and prejudice of ANMAR, Inc., in the aforementioned sum of P2,269,731.69, Philippine Currency.5

Arraigned on November 12, 2002, the petitioner entered a plea of "not guilty."6 Loyao remains at-large.

In the ensuing trial, the prosecution offered in evidence the oral testimonies of Danilo Bernardo, Edgardo Cano, Roberto Buen, Efren Marcelo, private complainant Engr. Lorna Marigondon, and Apolinaria de Jesus,7 as well as documentary evidence consisting of a security logbook entry, delivery receipts, photographs, letters, and sworn affidavits. The prosecution’s pieces of evidence, taken together, established the facts recited below.

In 2001, A. Mojica Construction and General Services (AMCGS) undertook the Porta Vaga building construction in Session Road, Baguio City. AMCGS subcontracted the fabrication and erection of the building’s structural and steel framing to Anmar, owned by the Marigondon

family. Anmar ordered its construction materials from Linton Commercial in Pasig City. It hired Junio Trucking to deliver the construction materials to its project site in Baguio City. It assigned the petitioner as project manager with general managerial duties, including the receiving, custody, and checking of all building construction materials.8

On two occasions in October 2001, the petitioner instructed Bernardo, Junio Trucking’s truck driver, and about 10 Anmar welders, including Cano and Buen, to unload about 10 to 15 pieces of 20 feet long wide flange steel beams at Anmar’s alleged new contract project along Marcos Highway, Baguio City. Sometime in November 2001, the petitioner again instructed Bernardo and several welders, including Cano and Buen, to unload about 5 to 16 pieces of 5 meters and 40 feet long wide flange steel beams along Marcos Highway, as well as on Mabini Street, Baguio City.9

Sometime in January 2002, Engr. Nella Aquino, AMCGS’ project manager, informed Engr. Marigondon that several wide flange steel beams had been returned to Anmar’s warehouse on October 12, 19, and 26, 2001, as reflected in the security guard’s logbook. Engr. Marigondon contacted the petitioner to explain the return, but the latter simply denied that the reported return took place. Engr. Marigondon requested Marcelo, her warehouseman, to conduct an inventory of the construction materials at the project site. Marcelo learned from Cano that several wide flange steel beams had been unloaded along Marcos Highway. There, Marcelo found and took pictures of some of the missing steel beams. He reported the matter to the Baguio City police headquarters and contacted Anmar to send a truck to retrieve the steel beams, but the truck came weeks later and, by then, the steel beams could no longer be found. The stolen steel beams amounted to P2,269,731.69.10

In his defense, the petitioner vehemently denied the charge against him. He claimed that AMCGS, not Anmar, employed him, and his plan to build his own company had been Engr. Marigondon’s motive in falsely accusing him of stealing construction materials.11

The RTC’s Ruling

In its January 12, 2004 decision,12 the RTC convicted the petitioner of qualified theft. It gave credence to the prosecution witnesses’ straightforward and consistent testimonies and rejected the petitioner’s bare denial. It sentenced the petitioner to suffer the penalty of imprisonment from 10 years and 3 months, as minimum, to 20 years, as maximum, to indemnify Anmar P2,269,731.69, with legal interest from November 2001 until full payment, and to pay Engr. Marigondon P100,000.00 as moral damages.

The CA’s Ruling

On appeal, the petitioner assailed the inconsistencies in the prosecution witnesses’ statements, and reiterated his status as an AMCGS employee.13

In its June 27, 2005 decision,14 the CA brushed aside the petitioner’s arguments and affirmed the RTC’s decision convicting the petitioner of qualified theft. It found that the prosecution witnesses’ testimonies deserve full credence in the absence of any improper motive to testify falsely against the petitioner. It noted that the petitioner admitted his status as Anmar’s employee and his receipt of salary from Anmar, not AMCGS. It rejected the petitioner’s defense of denial

THEFT | 1

for being self-serving. It, however, deleted the award of moral damages to Engr. Marigondon for lack of justification.

When the CA denied15 the motion for reconsideration16 that followed, the petitioner filed the present Rule 45 petition.

The Petition

The petitioner submits that, while the information charged him for acts committed "sometime in the month of October, 2001," he was convicted for acts not covered by the information, i.e., November 2001, thus depriving him of his constitutional right to be informed of the nature and cause of the accusation against him. He further argues that the prosecution failed to establish the fact of the loss of the steel beams since the corpus delicti was never identified and offered in evidence.

The Case for the Respondent

The respondent People of the Philippines, through the Office of the Solicitor General, counters that the issues raised by the petitioner in the petition pertain to the correctness of the calibration of the evidence by the RTC, as affirmed by the CA, which are issues of fact, not of law, and beyond the ambit of a Rule 45 petition. In any case, the respondent contends that the evidence on record indubitably shows the petitioner’s liability for qualified theft.

The Issue

The case presents to us the issue of whether the CA committed a reversible error in affirming the RTC’s decision convicting the petitioner of the crime of qualified theft.

Our Ruling

The petition lacks merit.

Sufficiency of the allegation of date of the commission of the crime

Section 6, Rule 110 of the Rules of Criminal Procedure, which lays down the guidelines in determining the sufficiency of a complaint or information, provides:

Section 6. Sufficiency of complaint or information. - A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information. (italics supplied; emphasis ours)

As to the sufficiency of the allegation of the date of the commission of the offense, Section 11, Rule 110 of the Rules of Criminal Procedure adds:

Section 11. Date of commission of the offense. - It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of

the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. [italics supplied; emphasis ours]

Conformably with these provisions, when the date given in the complaint is not of the essence of the offense, it need not be proven as alleged; thus, the complaint will be sustained if the proof shows that the offense was committed at any date within the period of the statute of limitations and before the commencement of the action.

In this case, the petitioner had been fully apprised of the charge of qualified theft since the information stated the approximate date of the commission of the offense through the words "sometime in the month of October, 2001." The petitioner could reasonably deduce the nature of the criminal act with which he was charged from a reading of the contents of the information, as well as gather by such reading whatever he needed to know about the charge to enable him to prepare his defense.

We stress that the information did not have to state the precise date when the offense was committed, as to be inclusive of the month of "November 2001" since the date was not a material element of the offense. As such, the offense of qualified theft could be alleged to be committed on a date as near as possible to the actual date of its commission.17 Clearly, the month of November is the month right after October.

The crime of qualified theft was committed with grave abuse of discretion

The elements of qualified theft, punishable under Article 310 in relation to Articles 308 and 309 of the Revised Penal Code (RPC), are: (a) the taking of personal property; (b) the said property belongs to another; (c) the said taking be done with intent to gain; (d) it be done without the owner's consent; (e) it be accomplished without the use of violence or intimidation against persons, nor of force upon things; and (f) it be done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence.18

All these elements are present in this case. The prosecution’s evidence proved, through the prosecution’s eyewitnesses, that upon the petitioner’s instruction, several pieces of wide flange steel beams had been delivered, twice in October 2001 and once in November 2001, along Marcos Highway and Mabini Street, Baguio City; the petitioner betrayed the trust and confidence reposed on him when he, as project manager, repeatedly took construction materials from the project site, without the authority and consent of Engr. Marigondon, the owner of the construction materials.

Corpus delicti is the fact of the commission of the crime

The petitioner argues that his conviction was improper because the alleged stolen beams or corpus delicti had not been established. He asserts that the failure to present the alleged stolen beams in court was fatal to the prosecution’s cause.

The petitioner’s argument fails to persuade us.

"Corpus delicti refers to the fact of the commission of the crime charged or to the body or substance of the crime. In its legal sense, it does not refer to the ransom money in the crime of kidnapping for ransom or to the body of the person murdered" or, in this case, to the stolen steel beams. "Since the corpus delicti is the fact of the commission of the crime, this Court has ruled

THEFT | 2

that even a single witness' uncorroborated testimony, if credible, may suffice to prove it and warrant a conviction therefor. Corpus delicti may even be established by circumstantial evidence."19"In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking."20

In this case, the testimonial and documentary evidence on record fully established the corpus delicti. The positive testimonies of the prosecution witnesses, particularly Bernardo, Cano and Buen, stating that the petitioner directed them to unload the steel beams along Marcos Highway and Mabini Street on the pretext of a new Anmar project, were crucial to the petitioner’s conviction. The security logbook entry, delivery receipts and photographs proved the existence and the unloading of the steel beams to a different location other than the project site.

Proper Penalty

The RTC, as affirmed by the CA, sentenced the petitioner to suffer the penalty of imprisonment from 10 years and three months, as minimum, to 20 years, as maximum, and to indemnify Anmar P2,269,731.69, with legal interest from November 2001 until full payment. Apparently, the RTC erred in failing to specify the appropriate name of the penalty imposed on the petitioner.

We reiterate the rule that it is necessary for the courts to employ the proper legal terminology in the imposition of penalties because of the substantial difference in their corresponding legal effects and accessory penalties. The appropriate name of the penalty must be specified as under the scheme of penalties in the RPC, the principal penalty for a felony has its own specific duration and corresponding accessory penalties.21 Thus, the courts must employ the proper nomenclature specified in the RPC, such as "reclusion perpetua" not "life imprisonment," or "ten days of arresto menor" not "ten days of imprisonment." In qualified theft, the appropriate penalty is reclusion perpetua based on Article 310 of the RPC which provides that "the crime of qualified theft shall be punished by the penalties next higher by two degrees than those respectively specified in Article 309."221âwphi1

To compute the penalty, we begin with the value of the stolen steel beams, which is P2,269,731.69. Based on Article 309 of the RPC, since the value of the items exceeds P22,000.00, the basic penalty is prision mayor in its minimum and medium periods, to be imposed in the maximum period, which is eight years, eight months and one day to 10 years of prision mayor.

To determine the additional years of imprisonment, we deduct P22,000.00 from P2,269,731.69, which gives usP2,247,731.69. This resulting figure should then be divided by P10,000.00, disregarding any amount less thanP10,000.00. We now have 224 years that should be added to the basic penalty. However, the imposable penalty for simple theft should not exceed a total of 20 years. Therefore, had petitioner committed simple theft, the penalty would be 20 years of reclusion temporal. As the penalty for qualified theft is two degrees higher, the correct imposable penalty is reclusion perpetua.

The petitioner should thus be convicted of qualified theft with the corresponding penalty of reclusion perpetua.

WHEREFORE, we hereby DENY the appeal. The June 27, 2005 decision and the November 24, 2005 resolution of the Court of Appeals in CA-G.R. CR No. 28369 are AFFIRMED with

MODIFICATION. Petitioner Engr. Anthony V. Zapanta is sentenced to suffer the penalty of reclusion perpetua. Costs against the petitioner.

SO ORDERED.

_____________

THEFT | 3

EN BANC

G.R. No. L-10015        December 18, 1956

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MARITA OCAMPO Y PURE, defendant-appellant.

BAUTISTA ANGELO, J.:

The accused was charged in the Court of First Instance of Manila with attempted theft with the aggravating circumstances of recidivism. After trial, wherein she waived her right to present evidence, she was convicted and sentenced to six months and one day of destierro, with the accessory penalties provided for by law and to pay the costs. In due time, she appealed to the Court of Appeals and considering that one of the errors she assigns involves the jurisdiction of the trial court, the case was certified to this Court under section 17 (3) of Republic Act 296, as amended.

The only question to be determined is whether the trial court has jurisdiction to try the offense charged in the information, for if the answer is in the negative, then it would be unnecessary for us to go into the merits of the case.

The offense charged is attempted theft which consists, according to the information, in that the accused "did then and there open the bag of the latter (offended party) containing the sum of P202.00 in cash of different denominations with the evident intent to take, steal and carry away said cash money, but the said accused was not however able to perform all the acts of execution which would have produced the crime of theft as a consequence by reason of cause independent of her (his) own voluntary desistance. Being an attempted offense, a penalty lower by two degree than that prescribed by law for the consummated felony should be imposed (Article 51, Revised Penal Code).lawphil.net

Under Article 309 of the same Code, if the value of the property stolen is more than P200 but does not exceed P2,000, the penalty of prison correccional in its minimum and medium periods shall be imposed. If we reduce this penalty by two degrees, the penalty to be imposed will be destierro in its maximum period to arresto mayor it its minimum period (Art. 71, Revised Penal Code, as amended by section 3, Commonwealth Act No. 217, specially Scale No. 1 thereof), which, in so far as the imprisonment is concerned, does not exceed 2 months (Uy Chin Huavs. Dinglasan, 47 Off. Gaz., Sup. 12, p. 233 and People vs. Santos, 87 Phil., 687). The offense charged in the information comes, therefore, under the original jurisdiction of the municipal court in view of section 87 (b) of Republic Act No. 296 which provides that "All offenses in which the penalty provided by law is imprisonment for not more than six months, or a fine of not more than two hundred pesos, or both such fine and imprisonment", come under the original jurisdiction of said court.

It is true that section 87, subsection (c) of Republic Act 296 also provides that "larceny, embezzlement, and estafa where the amount of money of property stolen, embezzled or otherwise involved, does not exceed the sum or value of two hundred pesos", likewise come under the original jurisdiction of the municipal court of a chattered city, and in the instant case the value of the property involved is P202, or a little more than the minimum fixed in said

subsection; however, we should not lose sight of the fact that the offenses mentioned in said subsection refer to consummated acts and not to those that are merely attempted or frustrated in nature. In fact, said subsection refer to "amount of money or property stolen, embezzled or otherwise involved." A different interpretation would give rise to the incongrous situation where while under subsection (c) the offense does not come within the jurisdiction of the municipal court because the value of the thing stolen is more than P200, it at the same time comes within its jurisdiction under subsection (b) because the penalty involved is less than six months. This cannot be the intendment of the law. Indeed, an offense which calls for the application of a penalty of destierro in its maximum period to 2 months of arresto mayor cannot come under the jurisdiction of the court of first instance [subsection (f), section 44 of Republic Act 296].

The fact that the accused is a recidivist is also of no moment. This circumstance can at most aggravate the penalty within the range provided for by law.

Wherefore, the decision of the lower court is reversed, without prejudice on the part of the prosecution to re-file the information with the proper court. No pronouncement as to costs.

__________

THEFT | 4

EN BANC

G.R. No. 78038 January 18, 1991

BENJAMIN VENTURINA, petitioner, vs.THE HONORABLE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, respondents.

 FERNAN, C.J.:p

This is a petition for review on certiorari of the decision dated March 2, 1987 promulgated by the Sandiganbayan finding petitioner Benjamin Venturina guilty as principal of the crime of attempted theft under Articles 308 and 309 in relation to Article 51 of the Revised Penal Code and sentencing him to an indeterminate penalty of four (4) months of arresto mayor as minimum to five (5) years and four (4) months as maximum and to pay the costs. 1

The records of the case and the evidenced adduced by the parties show the following facts:

Petitioner Benjamin Venturina, a trackman of the Philippine National Railways (PNR) since 1968, was a member of a team assigned to retrieve rails along the abandoned Manila-Cabanatuan line. The retrieval team was headed by Engineer Gregorio Pantaleon Jr. of the PNR Maintenance Department. On January 30, 1984, Engineer Pantaleon went on a mission to recover rails in Cabanatuan City. Venturina and Reynaldo Habalo, though members of said team, did not join Pantaleon. Venturina was allegedly going to fetch his wife and accompany her to the doctor for an emergency check-up. 2

Meanwhile, on the same date, Rolando Marinay, PNR Security Investigation Officer, and his co-officers, Rodolfo Calderon, Prudencio Dar and Venancio Naval, were instructed by the Chief Security Officer to proceed to San Rafael, Bulacan to look into reports about certain persons dismantling and cutting rails of PNR abandoned lines in that area. Before proceeding to their destination, they went to the headquarters of the 175th Philippine Constabulary Company to seek assistance.

From the PC headquarters, Marinay and his group went to Barangay Diliman Dos in San Rafael, Bulacan. Arriving there at about 4:00 p.m., they found three (3) persons cutting rails and I-beams of the abandoned PNR railroad tracks with an acetylene torch. About twenty three (23) pieces of cut rails ranging from about 1 1/2 to 3 feet in length with a total value of P58,500.00 had already been cut and were lying about. 3 They recognized one of the three (3) men as Benjamin Venturina, herein petitioner. The other two were non- PNR employees Identified as Lolito Magan and Renato Rojo. 4

When asked about their activity in the vicinity, petitioner Venturina told Marinay that he was instructed by Reynaldo Habalo to cut the rails preparatory to bringing them to Caloocan City. Venturina also showed Marinay a handwritten authority on PNR stationary dated January 26, 1984 purportedly signed by Engineer Gregorio Pantaleon Jr. which reads:

TO ALL CONCERNED:

1. Truck load of retrieved rails to be taken at Stockpile Material Management Yard area, Caloocan, escorted by trackmen;

A. Benjamin VenturinaB. Tirso Bernardo

(Sign.) Engr. Gregorio Pantaleon, Jr. 5

Doubting the authenticity of the alleged authority, Marinay brought Venturina and his men to the PC Headquarters. On their way to the main highway, they met a blue Ford Fiera with the lone passenger identified by petitioner as the owner of the acetylene torch. When confronted, the man gave his name as Antonio Tebajia and readily admitted ownership of the torch being used by Venturina and his men. Consequently, Tebajia along with petitioner, Magan and Rojo were taken to the PC headquarters for questioning. 6

On May 28, 1985, petitioner Venturina, together with Reynaldo Habalo, Artemio Tebajia, Lolito Magan and Renato Rojo, were charged before the Sandiganbayan with the crime of frustrated qualified theft defined under Article 310 of the Penal Code. The information reads:

That on or about the 30th of January 1984, in the Municipality of San Rafael, province of Bulacan, Philippines and within the jurisdiction of this Honorable Court, the said accused Reynaldo Habalo y Villegas, being then the Field Inspector of the Audit and Method Department of the PNR assigned to audit retrieved PNR beams and rails and Benjamin Venturina y Valderama as the PNR Trackman, both of whom were then appointed and performing the function of their office and taking advantage of the trust and confidence endowed upon them as public officers, together with Artemio Tebajia aliasTeming, Lolito Magan y Sagala and Renato Rojo y Sagala, conspiring, confederating and helping one another with intent to gain, did then willfully, unlawfully and feloniously, take and retrieve PNR steel rails and beams from the PNR railroad track to be delivered to the PNR terminal, Caloocan City, but once in possession, control and custody of the said rails and beams with a total estimated cost of P58,500 and to facilitate the disposal of the same, cut with acetylene torch the said retrieved PNR steel and beams into pieces thereby performing all the acts of execution which should have produced the crime of theft but nevertheless said accused were not able to accomplish their purpose, that is to take, steal, and carry away the said PNR steel rails and beams due to the timely arrival of one, Rolando Marinay, Security Investigator of the PNR thereby preventing the transportation thereof.

Contrary to law. 7

Only petitioner Venturina appeared at the arraignment. His co-accused Habalo, Tebajia, Magan and Rojo, remained at large. Venturina pleaded not guilty and trial proceeded against him. On March 2, 1987, the Sandiganbayan rendered a decision finding Venturina guilty of the lesser offense of simple theft at the attempted stage. On March 18, 1987, he filed an urgent motion for reconsideration but the same was denied on April 6, 1987.

Hence the present recourse which raises the basic question of whether or not the evidence presented by the prosecution before the Sandiganbayan has established the guilt of petitioner beyond reasonable doubt.

THEFT | 5

It is the vigorous contention of petitioner that the prosecution has not shown that he took direct part in the cutting of the rails or that he forced or induced his co-accused to the same. 8 Venturina claims that he did not personally cut the rails but merely gave direction to the persons cutting the rails in the area upon the request of PNR auditor Reynaldo Habalo, who was also a member of the retrieval team. Habalo reportedly showed him a written authorization from team leader Engineer Pantaleon, Jr. 9 Petitioner emphasizes that his act of supervising the cutting of the steel rails and beams should not be interpreted as an overt act of attempting to steal the rails because petitioner believed then that he and his companions had the authority to do so. Lastly, petitioner insists that the evidence linking him to the offense was only circumstantial. 10

We find no cogent reason to reverse the findings and conclusions of the Sandiganbayan. The Sandiganbayan did not err in finding that Venturina was in conspiracy with the other accused in the crime of simple theft. Assumingarguendo that Venturina only "supervised" the cutting of the rails, that act was his own direct participation in the criminal conspiracy to steal government property. It is not indispensable that a co-conspirator should take a direct hand in every act. Conspiracy is the common design to commit a felony. It is not participation in all the details of the execution of the crime. All those who in one way or another helped and cooperated in the consummation of the crime are considered as co-principals. 11

Conspiracy was evident from the coordinated movements of Venturina and his cohorts. The place where the rails and I-beams were located could not be reached by a truck. The truck had to be parked on the other side of a bridge. And so the accused took great pains in cutting the rails into shorter manageable pieces to reduce their weight and make the loading easier.

As a trackman who has joined several retrieval missions in the past, Venturina cannot deny that he knowingly took part in an illegal activity. He knew the proper procedure to be followed in salvaging operations. Rails at a length of about 30 feet are loaded "as-is" or in their full length by about six persons into a ten-wheeler truck. The rails are never cut. They are then brought to the PNR terminal in Manila or Caloocan City. But at the time of apprehension, Venturina was supervising Magan and Rojo in cutting the rails. Those two were not even employees of the PNR and the acetylene torch they were using belonged to Tebajia, also a private individual.

In retrieving rails, the team leader must be present at all times. In his absence, the operation is suspended. During the supposedly retrieval mission in San Rafael, Bulacan, on January 30,1984, Engineer Pantaleon, Jr. was not with Venturina. The only recovery mission scheduled for that day was in Cabanatuan City.

To exculpate himself, Venturina claims that the retrieval mission in San Rafael, Bulacan was with the prior permission of Engineer Pantaleon, Jr. But the alleged authorization was patently anomalous. To begin with, the authority should come from the PNR General Manager and not from a team leader. Secondly, the authority did not indicate the area of operation. Neither did it specifically permit Venturina and his companions to cut the rails into smaller pieces prior to their being transported to the Stockpile Material Management yard in Caloocan City.

Petitioner asseverates that the prosecution has failed to show the element of animo lucrandi on his part as his act consisted solely of giving directions to the other accused. Whether or not Venturina had planned to gain from the asportation of the cut rails is not important where it has been sufficiently established that a conspiracy existed between Venturina and the other

malefactors. Where theft has been committed through complicity, it is not necessary that each and everyone of the conspirators may have resolved to benefit personally from the taking. It should be enough that they intended that any one of them should benefit therefrom.

Intent is a mental state, the existence of which is made manifest by overt acts of a person. The intent to gain is presumed from all furtive taking of useful property appertaining to another unless special circumstances disclose a different motivation on the perpetrator's part. It is immaterial if there were a real or actual gain. The essential consideration is that there was an intent to gain. 12

From the foregoing circumstances, petitioner cannot deny his complicity in the attempted theft. He was accosted by PNR security men while supervising two non-PNR employees in the cutting of abandoned rails. Venturina's unexplained presence in San Rafael, Bulacan on January 30, 1984 with two private individuals, the sight of 23 pieces of cut rails lying about, the use of a private-owned acetylene torch and the outright disavowal by Engineer Pantaleon, Jr. of his signature on an alleged authority to cut the rails weigh heavily against petitioner's protestations of innocence. Indeed, the evidence arrayed against Venturina is so overwhelming that this Court is convinced that his guilt has been established beyond reasonable doubt. Nothing else can speak so eloquently of Venturina's culpability than the unassailable fact that he was caught red-handed in the very act of attempting to steal government property. Were it not for the timely intervention of alert PNR security agents, then Venturina and his co-conspirators would have succeeded in loading the cut rails on a waiting truck and disposed of them for their personal benefit.

WHEREFORE, the assailed decision of the Sandiganbayan dated March 2, 1987 in Criminal Case No. 10481 is hereby AFFIRMED in toto. Costs against petitioner Venturina.

SO ORDERED.

THEFT | 6

EN BANC

G.R. No. L-36862             February 13, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.KAW LIONG (alias CO KING LIONG, KO LIONG, KING LIONG, KING BIO CO LIONG,) and YU SIONG (aliasYU HAM BIN), defendants. KAW LIONG (alias CO KING LIONG), appellant.

ABAD SANTOS, J.:

The appellant in this case and another by the name of Yu Siong, were accused in the municipal court of the City of Manila of the crime of estafa committed, according to the information, as follows:

That on or about the 13th day of April, 1931, in the City of Manila, Philippine Islands, the said accused, conspiring and confederating together and helping each other, did then and there willfully, unlawfully and feloniously defrauded the Sun Photo Supply, a concern organized and doing business in said city, and its owners, in the following manner, to wit: the said accused, by stating and representing themselves to the employees of said Sun Photo Supply to the effect that they were merchants with credit, business and means with which to pay for 10 dozen rolls, Kodak film No. 116 valued at P72, and that they would pay cash on delivery thereof at their place of business at Calle Nueva of said city, and by means of other similar deceits, when in truth and in fact, as the said accused well knew, said statements and representation were false, succeeded in inducing the employees of said Sun Photo Supply to give and deliver, as in fact the latter gave and delivered to said accused the above-mentioned goods and merchandise, and the said accused once in possession thereof, willfully, unlawfully and feloniously disappeared and absconded themselves with the said goods and merchandise and misappropriated, misapplied and converted the same or the value thereof, to wit: P72 to their own use and benefit, to the damage and prejudice of said Sun Photo Supply and its owners, in the aforementioned sum of P72, Philippine currency, equivalent to 360 pesetas.

That the said accused Kaw Liong alias Ko Liong alias Co King Liong alias King Bio alias Co Liong has heretofore been convicted by virtue of final judgments rendered by competent courts, eleven times of the crime of estafa, five times of theft and three times of attempted theft, and is therefore an habitual delinquent under the provisions of Act No. 3586 of the Philippine Legislature, his last sentence as yet not having been served by him, inasmuch as his last conviction being under date of on or about October 3, 1931, for a term of imprisonment of sixteen months and three days.

The municipal court found the two defendants guilty and sentenced them accordingly. The appellant herein appealed to the Court of First Instance where, after due trial, he was again found guilty of the crime charged and sentenced to three months and one day of  arresto mayor and to suffer an additional penalty of ten years and one day of prision mayor, being a habitual delinquent, and to indemnify the Sun Photo Supply in the sum of P72, with subsidiary imprisonment in case of insolvency and to pay the costs. From this judgment this appeal was taken.

After a review of the evidence presented in the case, the appellant's attorney de oficio states in his brief that he finds no ground to ask for the acquittal of the appellant. We are satisfied that the evidence of record fully establishes the guilt of the appellant. The only question which arises is as to the appropriate penalty to be imposed. The accused admitted having been convicted eleven times of the crime of estafa, five times of theft and three times of attempted theft. The record shows that the defendant was convicted of the crime of estafa once on August 29, 1927, eight times on September 2, 1927, and once on August 28, 1931. He was also convicted of the crime of theft once on September 13, 1927, twice on September 11, 1931, and twice on September 12, 1931. Of attempted theft, he was convicted once on October 3, 1931. In People vs. Santiago (55 Phil., 266); People vs. De la Cruz, G. R. No. 33786, 1 and People vs. Ventura (56 Phil., 1), we held that convictions taking place on the same day should be considered equivalent to one. It follows that the appellant must be held to have had seven convictions of the crime of estafa, theft and attempted theft, and, pursuant to paragraph (d), section 1 of Act No. No. 3397, as amended by Act No. 3586, the accused should be sentenced to an additional penalty of not less than twenty-one years nor more than thirty years' imprisonment. (People vs. Hipolito, G. R. No. 30735.) 2 Consequently, the judgment of the lower court must, and is hereby, modified by sentencing the appellant to three months and one day of arresto mayor, and to suffer an additional penalty of twenty-one years of imprisonment.

Modified as above stated, the judgment appealed from is affirmed with costs against the appellant. So ordered.

THEFT | 7