SUFFICIENCY OF THE INFORMATION
It is fundamental that every element of the crime must be set out in the Information[13] to avoid surprise on the part of the accused and to afford [them] the opportunity to suitably prepare [their] defense.[14] No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the Information on which [they are] tried or is necessarily included therein.[15]
More importantly, "[the allegations of facts constituting the offense charged are substantial matters and an accused's right to question [their] conviction based on facts not alleged in the Information cannot be waived."[16]
Here, the charge against Arlene is designated in the Information as qualified theft. Yet, the CA and the RTC convicted Arlene of estafa involving unfaithfulness or abuse of confidence. Thus, the Court deems it necessary to discuss first the distinctions between these two crimes.
THEFT AND ESTAFA, Distinguished
Theft is distinguished from estafa by the manner in which the offender in each case acquires possession of the property.
"Theft is committed by any person who, with intent to gain but without violence against[,] or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent."[17] If committed with grave abuse of confidence, the crime of theft becomes qualified.[18] The crime of qualified theft under Article 308 in relation to Article 310 of the RPC requires the confluence of the following elements, to wit:
There was a taking of personal property;
The said property belongs to another;
The taking was done without the consent of the owner;
The taking was done with intent to gain;
The taking was accomplished without violence or intimidation against person, or force upon things; and
The taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence.[19]
On the other hand, the requirements to prove estafa involving unfaithfulness or abuse of confidence under Article 315, paragraph 1(b) of the RPC are the following:
(a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same;
(b) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt;
(c) that such misappropriation or conversion or denial is to the prejudice of another; and
(d) that there is a demand made by the offended party on the offender.[20]
Theft should not be confused with estafa |
In general, the two crimes are distinguished by the manner in which the offender in each case acquires possession of the property. The thief takes the item without the owner's consent. The estafador receives the thing and converts it to their own use or benefit.
"However, there may be theft even if the accused has possession of the property."[21] The misappropriation constitutes theft if the accused was entrusted only with the material or physical (natural) or de facto possession of the thing. Whereas, the conversion constitutes embezzlement or estafa if the accused has the juridical possession of the thing.[22]
The next question now is whether the Information for qualified theft alleges sufficient facts to sustain a conviction for estafa.
The prosecution failed to recite in the Information facts constitutive of estafa.
The juridical possession vs. the physical or material possession |
It is an essential element of the crime of estafa that the money or goods misappropriated or converted by the accused to the prejudice of another was received by him "in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same."[23]
The phrase contemplates receipt of the thing by virtue of a fiduciary relationship between the parties,[24] or transactions where juridical possession of the item is transferred to the accused.[25] Mere receipt of the property does not satisfy this element,[26] wherein the accused is entrusted only with material possession of the thing.[27]
In this case, the CA and the RTC both held that the prosecution alleged and proved all the elements of estafa under Article 315, paragraph 1(b) of the RPC. However, the Information is silent whether Arlene received the money in a fiduciary capacity, or under an obligation to return the same.[28] The phrase in the Information that Arlene "ought to remit"[29] the money is insufficient absent the allegation that this duty is rooted in transactions where she acquired juridical possession of the thing.
In contrast, the Information alleged that Arlene received the money as a mere collector.[30] As such, the money merely passes into Arlene's hands and her custody is only until the amount is remitted to Dr. Robillos. Arlene acquires only physical or material possession over the unremitted funds.
Verily, an employee who receives money or property in behalf of the employer is not vested with juridical possession but only physical or material possession.[31] An employee cannot be considered as an agent if the duty to collect is imposed by reason of his employment,[32]
thus:
It bears to stress that a sum of money received by an employee on behalf of an employer is considered to be only in the material possession of the employee. The material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer.
So long as the juridical possession of the thing appropriated did not pass to the employee-perpetrator, the offense committed remains to be theft, qualified or otherwise.
Hence, conversion of personal property in the case of an employee having mere material possession of the said property constitutes theft, whereas in the case of an agent to whom both material and juridical possession have been transferred, misappropriation of the same property constitutes Estafa.[33] (Emphases supplied and citations omitted)
Corollarily, Arlene cannot be convicted of a crime not embraced within the Information. Nevertheless, the Court finds that the allegations sufficiently charged Arlene with qualified theft.
The Information alleged all the constitutive elements of qualified theft. However, the prosecution proved only simple theft absent evidence that the abuse of confidence is grave.
There is no ambiguity in the Information. The designation of the offense and the recital of facts sufficiently constitute the crime of qualified theft.
Arlene was not denied of her constitutional right to be fully apprised of the charge against her, and to suitably prepare a defense. The Information alleged that Arlene, with intent to gain, took P1,000.00 belonging to her employer, Dr. Robillos, without the latter's consent, thereby gravely abusing the confidence reposed on her as a collector.
Apparently, the charge is for the crime of theft "[s]ince there is no allegation that the taking was accomplished with violence or intimidation against person or force upon things."
The allegation that the taking is with grave abuse of confidence categorizes the theft as qualified rather than a simple one.[34] It is settled "that the Information need not use the exact language of the statute in alleging the acts or omissions complained of as constituting the offense. The test is whether it enables a person of common understanding to know the charge against him, and the court to render judgment properly."[35]
Again, Arlene could not have been bewildered as to the nature of the accusation against her.
However, the Court finds that the prosecution established only simple theft.[36]
First, Arlene received P1,000.00 from Elena but failed to remit the amount to Dr. Robillos.
Second, the money belongs to Dr. Robillos as it comprised installment payments from customers who purchased jewelry.
Third, the absence of consent was shown in Dr. Robillos attempt to recover the unpaid installments from Elena.
Fourth, the furtive taking of the money, raised the reasonable presumption of intent to gain.
Fifth, Arlene got hold of the money in the performance of her duty as a collector without force, violence or intimidation. Yet, the prosecution failed to establish the element of grave abuse of confidence.
The Court has explained that grave abuse of trust is a "circumstance which aggravates and qualifies the commission of the crime of theft; hence, the imposition of a higher penalty is necessary."[37]
In qualified theft, the taking must be the result of a relation by reason of dependence, guardianship, or vigilance, between the accused and the offended party that has created a high degree of confidence between them.[38] Thus, grave abuse of confidence by a thieving employee should be contextualized not only by the relationship between the employer and employee, but also by the purpose for which the employee was given the employer's trust.[39]
In People v. Sabado,[40] the accused is guilty of qualified theft when he gravely exploited the trust of his employer. The Court considered the accused's exclusive management of the shop and access to the vault, to wit:
Theft here became qualified because it was committed with grave abuse of confidence. Grave abuse of confidence, as an element of theft, must be the result of the relation by reason of dependence, guardianship, or vigilance, between the accused-appellant and the offended party that might create a high degree of confidence between them which the accused-appellant abused. Accused-appellant, as established by the prosecution, is an employee of the Pawnshop. Accused-appellant could not have committed the crime had he not been holding the position of the trusted employee which gave him not only sole access to the Pawnshop's vault but also control of the premises.
The relevant portion of the RTC's disquisition reads:
Based on the extant records[,] it appears that accused Luther Sabado was a trusted employee of Diamond Pawnshop. In fact, the following circumstances show the trust and confidence reposed on him by the shop owners, to wit: he manages the shop alone; he has the keys to the locks of the shop; and he has access to the vault and knows the combination of the same. x x x.The management of Diamond Pawnshop clearly had reposed its trust and confidence in the accused-appellant, and it was this trust and confidence which he exploited to enrich himself to the damage and prejudice of his employer.[41] (Emphases supplied and citations omitted)
In Viray v. People,[42] however, a house caretaker was convicted only of simple theft for breaking into his employer's home to steal several valuables.
The Court found that the employer denied the accused access to the house which refutes the degree of trust and confidence between them, thus:
This Court is inclined to agree with the CA that the taking committed by petitioner cannot be qualified by the breaking of the door, as it was not alleged in the Information. However, we disagree from its finding that the same breaking of the door constitutes the qualifying element of grave abuse of confidence to sentence petitioner Viray to suffer the penalty for qualified theft. Instead, [w]e are one with the RTC that private complainant did not repose on Viray['s] "confidence" that the latter could have abused to commit qualified theft.
The very fact that petitioner "forced open" the main door and screen because he was denied access to private complainant's house negates the presence of such confidence in him by private complainant. Without ready access to the interior of the house and the properties that were the subject of the taking, it cannot be said that private complaint had a "firm trust" on petitioner or that she "relied on his discretion" and that the same trust reposed on him facilitated Viray's taking of the personal properties justifying his conviction of qualified theft.
To warrant the conviction and, hence, imposition of the penalty for qualified theft, there must be an allegation in the [I]nformation and proof that there existed between the offended party and the accused such high degree of confidence or that the stolen goods have been entrusted to the custody or vigilance of the accused.
In other words, where the accused had never been vested physical access to, or material possession of, the stolen goods, it may not be said that he or she exploited such access or material possession thereby committing such grave abuse of confidence in taking the property[.][43] (Emphases supplied and citations omitted)
Similarly, the Court in People v. Maglaya,[44] refused to impose the penalty prescribed for qualified theft when the accused was not given material possession or access to the property. The Court determined that the accused did not act with grave abuse of confidence despite his duties involving the handling and receiving of money from his employer's customers, viz.:
Although appellant had taken advantage of his position in committing the crime aforementioned, [w]e do not believe he had acted with grave abuse of confidence and can be convicted of qualified theft, because his employer had never given him the possession of the machines involved in the present case or allowed him to take hold of them, and it does not appear that the former had any especial confidence in him. Indeed, the delivery of the machines to the prospective customers was entrusted, not to appellant, but to another employee.[45] (Emphasis supplied)
Here, it was not proven that Dr. Robillos had special trust, or high degree of confidence in Arlene. The allegation in the Information that Arlene is a "secretary/collector" of Dr. Robillos does not by itself, without more, create the relation of confidence and intimacy required in qualified theft. More telling are the minuscule amounts involved and the fact that Dr. Robillos allowed Arlene to resign without any question, discount the existence of a high degree of confidence between them. The prosecution, likewise, failed to substantiate the gravity how Arlene betrayed Dr. Robillos' supposed special trust to qualify, or facilitate the taking of the money. Dr. Robillos principally hired Arlene as a clinic secretary while her task as a collector is foreign to her usual duties. The circumstances do not show that Arlene's job was instrumental in facilitating the taking of the money. There is no evidence that Arlene could not have committed the crime had she not been holding the position of a secretary or collector. To reiterate, abuse of confidence must be grave. On this point, the Court is convinced that Arlene took advantage of her position in committing the crime but not on the level of grave abuse of confidence. Thus, Arlene is guilty only of simple theft.
At most, the abuse of confidence shall be considered as a generic aggravating circumstance since the gravity of exploitation of trust was not proven.[46] Indeed, abuse of confidence is inherent in qualified theft but not in simple theft since the circumstance is not included in the definition of the crime.[47]
Under Article 14 of the RPC, abuse of confidence exists only when the offended party has trusted the offender who later abuses such trust by committing the crime. The abuse of confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence. The confidence between the offender and the offended party must be immediate and personal.[48] As discussed above, Arlene took advantage of her position as a secretary or collector in committing theft but the gravity of exploitation of trust was not proven.
Under Republic Act No. 10951,[49] the penalty for simple theft is arresto mayor to its full extent if the value of the property stolen is over P500.00 but does not exceed P5,000.00.[50] As this penalty does not exceed one (1) year, the Indeterminate Sentence Law becomes inapplicable. With the presence of the generic aggravating circumstance of abuse of confidence, the imposable penalty must be within the maximum period of the prescribed penalty which ranges from four (4) months and one (1) day to six (6) months. Accordingly, this Court imposes upon Arlene the penalty of four (4) months and one (1) day.
Applying the prevailing jurisprudence, the actual damages due to Dr. Robillos amounting to P1,000.00 shall earn interest at the rate of 6% per annum from the date of the RTC's Decision on July 26, 2004 until full payment.[51]
ROMOROSA vs. People, G.R. No. 191039. August 22, 2022
LOPEZ, M., J.
FOOTNOTES
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