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355 Phil. 628


[ G.R. No. 102786, August 14, 1998 ]




This case is here on appeal from the decision of the Court of Appeals, dated June 18, 1991, which affirmed the decision of the Regional Trial Court of Quezon City finding petitioner Alejandro B. de la Torre guilty of qualified theft and sentencing him to an indeterminate prison term of 6 years, 1 month, and 11 days, as minimum, to 8 years and 1 day, as maximum, and ordering him to indemnify the Manila Electric Company (MERALCO), the offended party, in the amount of P41,786.00.

The facts are as follows:

In the afternoon of April 18, 1989, Alexander Manalo, an electrical engineer of MERALCO assigned to inspect six electric meters installed in the premises of the Cathay Pacific Steel and Smelting Corporation (CAPASSCO) on De la Cruz Street in San Bartolome, Novaliches, Quezon City, discovered that the said electric meters were missing. He reported the loss to the MERALCO office in Ortigas Avenue, Pasig City. On April 20, 1989, Manalo and Felino Olegario, also of MERALCO, gave statements to the Northern Police District at Camp Karingal, Sikatuna Village, Quezon City regarding the loss of the electric meters. They suspected that CAPASSCO employees must have damaged the electric meters while tampering with them and that to conceal the attempt, the employees must have removed the electric meters. They expressed suspicion that MERALCO personnel were involved.

Patrolman Edgar Enopia, who was assigned to the case, proceeded to the scene of the crime and inquired from people he saw there if they had seen the electric meters being taken down from the post near the gate of CAPASSCO. According to Enopia, one of those he asked, Danilo Garcia, said he had seen at about 10:00 p.m. on April 11, 1989 four crewmembers in a MERALCO service truck, with the number 522 painted on its side, removing the electric meters. Acting on this lead, Enopia asked MERALCO for the identities of the men, one of whom turned out to be petitioner de la Torre. It appears that MERALCO service truck number 522 had specific crewmembers assigned to it.

On July 4, 1989, the crewmembers were taken to the NPD headquarters for investigation. They were included in a line-up of eight (8) persons. Garcia pointed to petitioner de la Torre as the leader of the group which took down the electric meters from the CAPASSCO premises, but he did not recognize the three (3) other crewmembers.

Based on the statements of Alexander Manalo, Felino Olegario, Edgar Enopia, and Danilo Garcia, Assistant City Prosecutor Demetrio Macapagal filed on July 13, 1989 an information charging petitioner de la Torre with Qualified Theft as defined in Arts. 309 and 310 of the Revised Penal Code:

That on or about the 11th day of April, 1989, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, ALEJANDRO DELA TORRE Y BERNAL, being then employed as leadman of a 5-men service crew of linemen of MERALCO, with grave abuse of confidence, in conspiracy with his co-accused JOHN DOE, PETER DOE and CHARLES DOE, conspiring together, confederating with and mutually helping each other, with intent to gain and without the knowledge and consent of the owner thereof, did then and there wilfully, unlawfully and feloniously take, steal and carry away the following properties owned by the Manila Electric Company (MERALCO) which were installed at the premises of the CATHAY PACIFIC STEEL AND SMELTING CORPORATION (CAPASSCO), located at No. 292 P. dela Cruz Street, San Bartolome, Novaliches, this City, customers of the aforesaid MERALCO, to wit:

One (1) GE Type C-9,
120 volts, Co. No. 42GRM-219
One (1) GE Type VW-63-A,
120 volts, Co. No. 41G208
One (1) GE Type V-63-A,
120 volts, Co. No. 41GD-558
--- 2,870.94
One (1) GE Type G-9,
139 volts, 3 phase, No.42GRIM 1091
One (1) WH Type
D4A-2, 3 phase, Co. No.41D4AW-92
One (1) Reactive Meter,
No. 41CA-34 ---

with an aggregate value of P41,786.00, Philippine Currency, belonging to MANILA ELECTRIC COMPANY, represented by FELINO R. OLEGARIO, to the damage and prejudice of the latter in the aforementioned amount.


The case was raffled to Branch 92 of the RTC of Quezon City, presided over by Judge Pacita Cañizares-Nye. Trial was held from December 28, 1989 to February 1, 1990. In a decision rendered on March 16, 1990, Judge Cañizares-Nye, relying heavily on the testimony of Garcia, found petitioner de la Torre guilty of Qualified Theft and thus sentenced him to an indeterminate prison term of 6 years, 1 month, and 11 days of prision mayor, as minimum, to 8 years and 1 day of prision mayor, as maximum; and ordered him to pay MERALCO the amount of P41,786.00.

Petitioner de la Torre appealed to the Court of Appeals, contending first, that his constitutional rights were violated during the custodial investigation conducted in the case; second, that the RTC erred when it admitted in evidence the testimonies of the prosecution witnesses, when the same were not formally offered; third, that the RTC took into account hearsay evidence in arriving at its judgment; and fourth, that the uncorroborated testimony of Garcia was insufficient to establish his guilt beyond reasonable doubt. However, the Court of Appeals[2] affirmed the lower court’s decision.[3] The Court of Appeals subsequently denied reconsideration. Hence, this appeal.

First. Petitioner de la Torre alleges violation of his constitutional rights under Art. III, §12(1) of the Constitution which provides that “any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.” Petitioner de la Torre claims he was not informed of his right to remain silent and to have the assistance of counsel during the investigation conducted on July 4, 1989 at the NPD headquarters, where the crewmembers of MERALCO service truck number 522 were presented in a police line-up. He further invokes the exclusionary rule in par. 3 of the same §12 that “any confession or admission obtained in violation of [this rule] shall be inadmissible in evidence against him.”

In Gamboa v. Cruz,[4] this Court ruled that “no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel.”[5] However, this applies only from the moment the investigating officer begins to ask questions for the purpose of eliciting admissions, confessions, or any information from the accused. A police line-up is not considered part of any custodial inquest because it is conducted before that stage is reached.[6]

In the instant case, petitioner de la Torre, together with the other crewmembers of MERALCO truck number 522, was merely included in a line-up of eight (8) persons from which he was picked out by Garcia as the leader of the group which had removed the electric meters from the CAPASSCO premises. Until then, the police investigation did not focus on petitioner. Indeed, no questions were put to him. Rather, the questions were directed to witnesses of the complainant. There is, therefore, no basis for petitioner’s allegations that his rights as a suspect in a custodial interrogation were violated.

Second. Petitioner contends that the trial court admitted in evidence the testimonies of the prosecution witnesses when the fact is that before they testified, their testimonies were not formally offered as required by Rule 132, §35 of the Rules of Court. Indeed, as held in People v. Java:[7]

. . . Rule 132, Section 34 of the Revised Rules of Court requires that for evidence to be considered, it should be formally offered and the purpose specified. . . .

Under the new procedure as spelled out in Section 35 of the said rule which became effective on July 1, 1989, the offer of the testimony of a witness must be made at the time the witness is called to testify. The previous practice was to offer the testimonial evidence at the end of the trial after all the witnesses had testified. With the innovation, the court is put on notice whether the witness to be presented is a material witness and should be heard, or a witness who would be testifying on irrelevant matters or on facts already testified to by other witnesses and should, therefore, be stopped from testifying further.

. . . Section 36 of the aforementioned rule requires that an objection in the course of the oral examination of a witness should be made as soon as the grounds therefor shall become reasonably apparent. Since no objection to the admissibility of evidence was made in the court below, an objection raised for the first time on appeal will not be considered.[8]

Petitioner raised this point, however, only in the Court of Appeals. He thus waived his objection by his failure to raise it at the close of the presentation of the prosecution evidence in the trial court. As already noted, the trial in this case took place from December 28, 1989 to February 1, 1990. That was after the adoption of the new rule which required that the offer be made at the beginning of the testimony of a witness. Petitioner should have invoked this rule and objected to the testimonies of the prosecution witnesses, if not before each of their testimonies, then at least at the time their testimonies were formally offered at the close of the presentation of the prosecution evidence. Not having done so, he must be deemed to have waived his objection based on this ground. Consequently, the trial court committed no error in considering the testimonies of the prosecution witnesses in its decision despite the fact that such testimonies had not been offered before they were given.

Third. Petitioner claims that, in violation of the hearsay rule, written statements pertaining to disputed facts were considered by the trial court in its decision without presenting the declarants at the trial for examination.

Rule 132, §1 of the Rules of Court provides that “the examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.” The reason for this rule is two-fold: to afford the judge the opportunity of observing the demeanor of the witness and to allow the adverse party a chance of cross-examining him.

Although hearsay evidence may be admitted because of lack of objection by the adverse party’s counsel, it is nonetheless without probative value. The explanation for this is given in People v. Valero, thus:[9]

The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value.

In this case, documents material to the guilt of the accused were admitted without the prosecution presenting in court those who executed them, to wit: Exhibit M, certification signed by a certain G.B. Pilapil, Jr., which states that MERALCO did not send out any personnel to inspect the electrical installations at CAPASSCO during the period April 11, 1989 to April 12, 1989; Exhibit N, certification issued by one Vitaliano A. Dizon, which states that MERALCO did not receive any complaint from CAPASSCO concerning the electric meters in question during the same period; and Exhibit P, certification given by a certain E.M. Lopez, Jr., stating that MERALCO did not authorize any of its employees to remove the subject electric meters.

These documents contain statements of facts and, therefore, those who made them should have been presented in court so that they could be cross-examined by the defense. Otherwise, whatever matter they contain is hearsay and, consequently, without probative value.

Fourth. We likewise agree with the final point raised by petitioner, namely, that the evidence for the prosecution at the trial is not sufficient to prove his guilt beyond reasonable doubt. The trial court convicted petitioner solely on the uncorroborated testimony of Danilo Garcia.

Garcia claimed that at about 10:00 p.m. on April 11, 1989, while he was waiting for his wife in front of the CAPASSCO compound on P. de la Cruz Street, San Bartolome, Novaliches, Quezon City, he saw petitioner supervising the other crewmembers of a MERALCO service truck number 522 in bringing down the six electric meters from the MERALCO post at the CAPASSCO compound. According to Garcia, he noticed the Meralco truck parked below the Meralco post outside the CAPASSCO gate. The truck was equipped with a crane-like structure to which was attached a basket in which two men rode. The basket was raised toward the Meralco post while two or three men remained on the ground next to the Meralco truck. One man was giving instructions to the men removing the meters. Garcia recognized the truck to be that of Meralco because of its familiar orange color. Thus, he testified:

Q: While conversing with your friends at a sidewalk beside CAPASSCO, did you observe any unusual incident?
A: There is, sir.

Q: Could you please tell us what is this unusual incident that you observed?
A: Yes, sir, a MERALCO truck was parked and the basket was being raised to the post.

Q: And could you please tell us what happened after the basket was raised to the post, Mr. Witness?
A: While the basket was being raised to the post with two (2) men on board, another one was giving instructions from below.

. . . .

Q: After the adjustment of the basket, what happened, Mr. Witness?
A: Then, they opened the box that was attached to the wall of CAPASSCO while the other one was tampering the meters and handing it to his companion who was with him in the basket.

. . . .

Q: Mr. Witness, could you recognize the two (2) men aboard the basket if you have the opportunity of seeing them again?
A: Yes, sir.

Q: How about the other man who was giving instructions on the ground? Can you recognize that person if you have the opportunity of seeing him again?
A: Yes, sir.

. . . .

Q: Will you look around inside the courtroom if he is here?
A: No, sir.

Q: I will show you photographs of several persons. Can you identify the person whom you saw giving instructions on April 11, 1989?
A: Yes, sir.

. . . .

(Witness pointed to a photograph of Alejandro de la Torre which appears on the bailbond filed by the accused.)

. . . .

Q: Can you remember the body number of the truck, Mr. Witness?
A: Body number 522, sir.

Q: You stated that it was Body No. 522. Why do you say that it is 522, Mr. Witness?
A: It so happened that I won in the jueteng, sir.[10]

To be sure, the uncorroborated testimony of a lone witness is sufficient basis for the conviction of the accused if it is credible, positive, and constitutes proof beyond reasonable doubt that the latter is guilty. However, in the case at bar, the answers given by Garcia to questions asked during his direct examination fall short of this standard. First, Garcia must have an extremely acute sense of perception to recall a feature of the MERALCO service truck, such as its number, which at the time had absolutely no significance for him. His claim that he remembered the number because it was the number of a winning bet in “jueteng” is too facile to be convincing. Second, Garcia must have a phenomenal memory to be able to recall almost three months after the incident the appearance of a complete stranger whom he had seen only once. The removal of electric meters by crewmembers of MERALCO was hardly a remarkable event that would have deserved the attention to detail that Garcia, a mere chance passerby, apparently lavished upon it. As this Court said in People v. Ibal:[11]

. . . the presence of minor inconsistencies in the testimony of a witness could be an indication of truth. A witness whose testimony is perfect in all aspects, without a flaw and remembering even the minutest details which jibe beautifully with one another, lays himself open to suspicion of having been coached or having memorized statements earlier rehearsed.

On the other hand, if, as Garcia said, he noticed that the MERALCO men were “tampering with the meters,” it is a source of wonder why he did not report the matter to the barangay authorities.

Not only is the testimony of Danilo Garcia improbable. His credibility as a witness is likewise doubtful in view of the testimony of Pio Bautista, a council member of Barangay San Bartolome, Novaliches, Quezon City. He testified that Danilo Garcia was not known to residents of P. de la Cruz Street in San Bartolome, Novaliches, Quezon City. According to Bautista, he made inquiries upon the request of petitioner de la Torre concerning the residence address of Garcia. Bautista testified:

Q: . . . Were you able to make some exhaustive inquiries of Mr. Danilo Garcia which he said in his sworn statement “nakatira sa looban of P. de la Cruz Street, San Bartolome, Quezon City?”
A: Yes, sir.

Q: And then what happened when you went in looban, P. de la Cruz Street, San Bartolome, Novaliches, Quezon City?
A: Nobody was able to tell me that a certain Danilo Garcia resides in that place.[12]

Evidence to be believed must come from a credible witness and must itself be credible.

WHEREFORE, the decision appealed from is REVERSED and petitioner Alejandro B. de la Torre is ACQUITTED on the ground of reasonable doubt.


Melo and Puno, JJ., concur
Regalado, J.,(Chairman), on official leave
Martinez, J., on sick leave

[1] Records, pp. 1-2.

[2] Per Justice Luis L. Victor and concurred in by Justices Santiago M. Kapunan and Segundino G. Chua.

[3] Rollo, p. 15.3

[4] 162 SCRA 642 (1988).

[5] . Id., at 648.

[6] Ibid.

[7] 227 SCRA 668 (1993).

[8] Id., at 679-680.

[9] 112 SCRA 661, 675 (1982).

[10] TSN, pp. 4-6, Jan. 11, 1990.

[11] 143 SCRA 317, 324 (1986).

[12] TSN, pp. 6-7, Jan. 23, 1990.

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