538 Phil. 786
CARPIO MORALES, J.:
Petitioners Rosario "Baby" Astudillo (Rosario) and Filipina "Lina" Orellana (Filipina) via separate petitions for review on certiorari seek a review of the Decision[1] and the Resolution[2] of the Court of Appeals affirming with modification that of the Regional Trial Court of Quezon City, Branch 78[3] (the trial court) finding them guilty of Qualified Theft and denying their Motions for Reconsideration, respectively.
The undersigned accuses FLORMARIE CALAJATE ROBEL, ROBERTO F. BENITEZ, ROSARIO ASTUDILLO a.k.a. "Baby" and FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED THEFT as follows:Additionally, petitioners, Benitez and Norberto "Carlo" Javier (Javier) were individually charged also with Qualified Theft in four (4) separate Informations all dated September 9, 1996.
That during the period comprised from January 1996 to February 1996, the above-named accused, being then employed as relieving cashier/service-in-charge (Flormarie Calajate Robel), supervisor/floor manager (Roberto F. Benitez[)], sales clerks (Rosario Astudillo a.k.a. "Baby" and Filipina Orellana y Macaraeg) at the WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG, and as such had free access to the company premises, materials, supplies and items store[d] thereat, conspiring, confederating together and mutually helping one another, with grave abuse of confidence and intent of gain, and without the consent of the owner thereof, did, then and there wilfully, unlawfully and feloniously take, steal and carry away two (2) booklets of Sales Invoices Nos. from 128351 to 128400 of the said corporation and thereafter use the said invoices in the preparation of fictitious sales and withdrawals of merchandise with the total value of P797,984.00 Philippine Currency, belonging to the said WESTERN MARKETING CORPORATION, to its damage and prejudice.
CONTRARY TO LAW.[4] (Emphasis supplied)
The undersigned accuses ROSARIO ASTUDILLO a.k.a. "Baby" of the crime of QUALIFIED THEFT as follows:Petitioners, Benitez and Javier, with the assistance of their respective counsel, pleaded not guilty during arraignment.[6] Flormarie has remained at large.
That on or about the period from May 1, 1994 to February 16, 1996, in Quezon City, Philippines, the above-named accused, being then employed as sales representative/clerk at the WESTERN MARKETING CORPORATION (P. Tuazon Branch), represented by LILY CHAN ONG, and as such had free access to the company cash sales, with grave abuse of confidence and intent of gain, and without the consent of the owner thereof, did, then and there, wilfully, unlawfully and feloniously take, steal and carry away the excess sum/amount between the tag price and discounts price in the sum of P12,665.00, belonging to the said WESTERN MARKETING CORPORATION, to its damage and prejudice in the amount aforementioned.
CONTRARY TO LAW.x x x
The undersigned accuses FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED THEFT, committed as follows:
That on or about the period from May 1, 1994 to January 27, 1996, in Quezon City, Philippines, the above-named accused, being then employed as Sales clerk at the WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG, and as such had free access to the company cash sales, with grave abuse of confidence and intent of gain, and without the consent of the owner thereof, did, then and there, wilfully, unlawfully and feloniously take, steal and carry away the excess sum/amount between the tag price and discount price of each and every items sold by her to company customers, in the sum of P4,755.00, belonging to the said WESTERN MARKETING CORPORATION, to its damage and prejudice in the amount aforementioned.
CONTRARY TO LAW.[5]
IN CRIMINAL CASE NO. Q-96-67827 –Petitioners and Benitez elevated their cases on appeal. The Court of Appeals affirmed the trial court's judgment with modification as to the penalties imposed, thus:Accused Roberto F. Benitez, Rosario Astudillo a.k.a. "Baby", and Filipina Orellana y Macaraeg shall each suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of P797,984.00, jointly and severally for their civil liability;IN CRIMINAL CASE NO. Q-96-67829 –Accused Rosario Astudillo a.k.a. "Baby", shall suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of P12,665.00 for her civil liability;IN CRIMINAL CASE NO. Q-96-67830 –Accused Filipina Orellana y Macaraeg, shall suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the sum of P4,755.00 for her civil liability; andIN CRIMINAL CASE NO. Q-96-67831 –Accused Roberto F. Benitez, shall suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to pay the amount of P11,079.00 for his civil liability.The penalties imposed on all the accused are quite harsh, but as the maxim goes, "Dura Lex Sed Lex", the Court could not impose otherwise.
SO ORDERED.[8] (Emphasis in the original; underscoring supplied)
WHEREFORE, the decision dated May 28, 1998 of the Regional Trial Court of Quezon City, Branch 78 is AFFIRMED with MODIFICATION.After petitioners and Benitez's respective Motions for Reconsideration were denied by the Court of Appeals, petitioners filed these separate petitions for review which were, on motion of the Office of the Solicitor General, ordered consolidated.[10]SO ORDERED.[9] (Emphasis in the original; underscoring supplied)
- In Criminal Case No. Q-96-67827, appellants Roberto Benitez, Rosario Astudillo and Filipina Orellana are found guilty beyond reasonable doubt of qualified theft and are hereby sentenced to suffer the penalty ranging from 10 years and 1 day of prision mayor in its maximum periodto 15 years of reclusion temporalas maximum, and to pay to the offended party the amount of P797,984.00, jointly and severally, as reparation for the unrecovered stolen merchandise;
- In Criminal Case No. Q-96-67829, appellant Rosario Astudillo is found guilty beyond reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 10 years and 1 day of prision mayor inits maximum period as minimum to 14 years, 8 months and 1 day ofreclusion temporal in its medium period as maximum, and to pay to the offended party amount of P12,665.00 as reparation for the stolen goods.
- In Criminal Case No. Q-96-67830, appellant Filipina Orellana is found guilty beyond reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 4 years, 2 months and 1 day of prision correccional in its maximum period as minimum to 8 years and 1 day ofprision mayor in its medium period as maximum and to pay to the offended party the amount of P4,755.00 as reparation for the stolen property;
- In Criminal Case No. Q-96-67831, appellant Roberto Benitez is found guilty beyond reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging from 6 years and 1 day of prision mayor inits minimum period as minimum to 10 years and 1 day of prision mayor inits maximum period as maximum and to pay to the offended party the amount of P11,079.00 as reparation for the stolen goods.
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONSIDERED AN APOLOGY FOR BREACH OF PROCEDURE AS AN ADMISSION OF A CRIME.On her part, Filipina raises the following issues:
THE COURT A QUO ERRED WHEN IT DEPARTED [FROM] THE NORMAL COURSE OF JUDICIAL PROCEEDING AND CONVICTED PETITIONER OF THE OFFENSE OF THEFT WITHOUT THE ESSENTIAL ELEMENT OF UNLAWFUL TAKING.
THE COURT OF A QUO (sic) GRIEVOUSLY ERRED WHEN IT ABUSED ITS DISCRETION TO ARRIVE AT CONCLUSIONS OF FACTS BY INDECENTLY CONSIDERING AND DISTORTING EVIDENCE TO CONFORM TO ITS FLAWED CONCLUSION.[11] (Underscoring supplied)
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT CONVICTING THE PETITIONER FILIPINA ORELLANA Y MACARAEG OF THE CRIME CHARGED DESPITE INSUFFICIENCY OF EVIDENCEFrom the evidence for the prosecution, the following version is gathered:
WHETHER OR NOT AN EXTRA-JUDICIAL ADMISSION OBTAINED THROUGH TRICKERY AND SCHEME WITHOUT THE BENEFIT AND ASSISTANCE OF COUNSEL IS A SUFFICIENT GROUND TO CONVICT AN ACCUSED
WHETHER OR NOT CONSPIRACY MAY BE PROVED SIMPLY ON THE GROUND THAT ALL ACCUSED ARE CO-EMPLOYEES AND WORKING IN ONE COMPANY[12] (Underscoring supplied)
Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay Mrs. Lily Ong at Western Marketing Corp. Ang mga kasalanan ako po ay:In a still subsequent meeting with Lily, Filipina made a written statement in the former's presence reading:
1) Ang pagkuha ng Promo na dapat ay para sa Customer.
2) Ang paggamit ng gift check na para rin sa Customer ang kinukuha ko at ako ang gumagamit.
3) Ang pagamit na rin sa Pera na tinatawag na Short-Over ay amin ding ginagawa. Example nagbayad ang Customer ng 9000 and C.P. 8,900 and 9,000 ay nasulat sa original na INV.
4) Ang pagkuha na rin ng mga Product tulad ng sumusunod, na ako nagplano at si Ate Lina.Ito lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po ay nangangako na hindi na ito uulitin ang lahat ng mga kasalanan sa Western ay kay Mrs. Lily Ong at Pinapangako ko po na Sumpa man kasama ang pamilya at salamat din po dahil ako ay pinatawad nila at binigyan pa ng isang pagkakataon. Maraming maraming salamat po.[17] (Emphasis and underscoring supplied)
Kay Ate Lolit Tiffin Carrier
Cookware Set 7 pcs.Ate Lina Cookware Set 7 pcs. Norma Cookware Set 7 pcs.
Airpot LemonRobert National Elec. Stove HNK-211
Rice Bowl
Ako po si Lina M. Orellana na nangangako kay Ate Lily na hinding-hindi ko na uulitin iyong naglalabas ng mga items tulad ng cookware set at casserole na ang mga kasama ko po rito ay sina Lolit, Norma, Robert na isinagawa namin. Na kami po si Robert ang nagsabi kay Lolit na maglabas ng stock pero bago po namin ginagawa iyon nagsabi po kami kay Lolit na sumagot naman ng ng oo pero kami po ni Robert and nagkumbinsi sa dalawa. Kung mauulit pa ho ito kung anuman po ang gusto ni Ma'm Lily na gawin sa akin ay lubos ko pong tatanggapin.[18] (Underscoring supplied)Also in a meeting with Lily, Rosario, who was earlier implicated by Flormarie's husband in his telephone conversation with Aurora,[19] wrote:
Mam Lily,Still in a separate meeting with Lily and her siblings on one hand, and Flormarie and her husband on the other, Flormarie wrote what she knew of the incident as follows:
Sana ho Ate Lily patawarin ninyo ako sa nagawa kong kasalanan, regarding sa "Short-over". Siguro ho nagawa ko lang ho 'yon sa pakikisama sa kanila, sa mga kasamahan ko dito sa Nuestra, alam ko ho na mali 'yon kaya pinagsisisihan ko ho 'yon. Sana ho mapatawad ninyo ako sa nagawa kong kasalan.
'Yun pong tungkol sa kaso ni Marie, wala ho akong alam don. Kumare ko nga ho sya pero yung pagnanakaw niyang ginawa wala akong kinalaman don. Kahit ho siguro magkautang-utang ako hindi ko magagawa 'yon.
Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa kong kasalanan at pinapangako ko ho na hinding-hindi ko na uulitin.Maraming salamat ho,
(Sgd.)Baby Astudillo
P.S. 'yun ho palang perang na-oover naming, pinaghahatian po namin nila Rita at ni Marie.[20] (Underscoring supplied)
Ito ang nalalaman ko kung paanong nangyari ito sa loob ng tindahan ng Western Mktg. P. Tuazon Branch.Flormarie, in the company of her sister Delma and Lily, subsequently appeared before a notary public to execute a similar statement reading:
*SHORT-OVER
Ang tag price, kung ang customer ay hindi tumawad, binabago na lang ang presyo sa duplicate copy and then kinukuha na lang sa cashier ang pera tapos naghahati-hati na lang si robert, baby, lina, lolit, Rita at Marie, Norma, Fe.x x x
*INVOICE
Ito ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at pagkatapos binigyan niya ako ng (3 resibo series) at hindi ko na po alam kung anong ginawa na niya sa invoice.
Ang paraan magreresibo ako tatatakan ko ng paid kasama kung sino ang taong maglalabas ng unit tapos ibebenta ko na yong unit yung pera kinukuha ko na bibigyan ko lang siya ng kahit magkanong amount kung sino yong taong inutusan ko.[21] (Underscoring supplied)
Flormarie and her sister, together with Lily, later executed a statement before Cubao SPO1 Jose Gil Gregorio, reading:x x x x
- Ako ngayon ay kusang loob na lumapit sa Western upang humingi ng kapatawaran sa aking mga nagawa at upang makipagkasundo sa isang maayos na pagbabayad sa mga halagang aking nakuha sa Western at mahalaga sa lahat, upang isiwalat ang mga taong kasangkot sa katiwaliang ito at mga paraan ng paggawa nito.
- Halos lahat ng mga kawani ng tindahan ay kasangkot sa mga sumusunod na katiwalian:
3.1. Short-Over — Ito ay ang pagtatala ng mas mababang halaga ng paninda sa mga "duplicate copies" ng resibo kapag ang kustomer ay hindi tumawad sa "tag price" at nagbayad ng "cash". Ang sobrang halaga ay pinaghahatian namin nina ROBERT BENITEZ ("Robert"); ROSARIO ALTUDILLO ("Baby"); FILIPINA ORELLANA ("Lina"); LOLIT BORJA ("Lolit"); RITA LORENZO ("Rita"); NORMA RICAFORT ("Norma") at FE CABIGAN ("Fe").x x x x
3.3. INVOICING — Sa pamamagitan ng mga resibong na may tatak na "paid" na ibinibigay ni Robert sa aking nailalabas ko ang mga paninda na akin namang naibebenta.[22]x x x x (Emphasis and underscoring supplied)
In an inventory of stocks conducted at the branch office of Western, several other appliances were found missing as were unauthorized deductions from the cash collections.[24] The total missing merchandise was valued at P797,984.00 as reflected in the inventory report.[25] And discrepancies between the actual sales per cash sales invoice and the cash remittance to the company in the sum of P34,376.00 for the period from January 1994 to February 1996[26] were also discovered, prompting Western to initiate the criminal complaints for Qualified Theft.
TANONG: Ayon kay MARLON CAMILO, Western Marketing Corp Branch Accountant nadiskubre niya ang pagkawala ng isang booklet ng Sales Cash Invoice (50pcs.) na may numerong 128351 to 128400 nitong mga nakaraang araw may kinalaman ka ba sa nasabing pangyayari? SAGOT: Opo. T : Kung mayroon kang kinalaman sa nasabing pangyayari ito ba ay kusang loob mong ginawa?
S : Itinuro lang po ito sa akin. T : Ano ang iyong ginawa?
S : Ako po ang kumuha noong nawawalang isang booklet ng Cash Sales Invoice sa turo ni ROBERT BENITEZ na Sales Supervisor sa Western Marketing Corp. x x x x T : Sa tatlong series ng Cash Sales Invoice na napunta sa iyo ano ang iyong ginawa? S : Ginamit ko po ito sa paglalabas ng mga items/unit sa Western Marketing Corp. x x x x T : Sa maikling salaysay, ikuwento mo nga sa akin kung papaano mo isinagawa ang iyong pagnanakaw sa pag-gamit ng mga Cash Sales Invoice? S : Ganito po ang ginawa ko, iniuwi ko sa aming bahay yung tatlong series ng resibo na ibinigay sa akin ni ROBERT BENITEZ at tinuruan po niya ako na sulatan ko yung mga resibo ng mga items na gusto kong ilabas, at pagkatapos po ay ibinalik ko ito sa Western Marketing Corp at binigay ko ito kay ROBERT BENITEZ, at ang sabi niya sa akin ay siya na raw ang bahala na magpalabas noong mga items na aking isinulat sa resibo. x x x x T : Bukod kay ROBERT BENITEZ may mga tao bang karamay sa naganap na transaksiyon? S : Mayroon po. T : Sino-sino ito? S : Sina LINA ORELLANA po, Sales Lady po, ROSARIO ASTUDILLO, sales lady. T : Sa iyong pagkakaalam, ano ang kanilang mga partisipasyon na naganap na transaksyon? S: Si LINA ORELLANA po ang sales lady, at siya rin ang may pirma doon sa resibo, at ganoon din po itong si ROSARIO ASTUDILLO. x x x x T:
Magkano naman ang ibinibigay sa iyo ni ROBERT BENITEZ kapag nailabas ng yung mga items doon sa resibo na iyong ginawa?S :
Hindi ko na po matandaan basta pinapartihan niya ako at yung dalawang sales lady.[23] (Emphasis and underscoring supplied)
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect.People v. Tin Lan Uy, Jr. [32] is similarly instructive:He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights."
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."[30] (Emphasis and underscoring supplied)
Ayson adds:
The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc) which, to repeat, are relevant in custodial investigations.[31]
Clearly, therefore, the rights enumerated by the constitutional provision invoked by accused-appellant are not available before government investigators enter the picture. Thus we held in one case (People v. Ayson, [supra]) that admissions made during the course of an administrative investigation by Philippine Airlines do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a private individual, or to a verbal admission made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante and not in his official capacity. (Emphasis and underscoring supplied)The Court of Appeals did not thus err in pronouncing that petitioners were not under custodial investigation to call for the presence of counsel of their own choice, hence, their written incriminatory statements are admissible in evidence.
It is always incumbent upon the prosecution to prove at the trial that prior to in-custody questioning, the confessant was informed of his constitutional rights. The presumption of regularity of official acts does not prevail over the constitutional presumption of innocence. Hence, in the absence of proof that the arresting officers complied with these constitutional safeguards, extrajudicial statements, whether inculpatory or exculpatory, made during custodial investigation are inadmissible and cannot be considered in the adjudication of a case. In other words, confessions and admissions in violation of Section 12 (1), Article III of the Constitution are inadmissible in evidence against the declarant and more so against third persons. This is so even if such statements are gospel truth and voluntarily given.[34] (Emphasis and underscoring supplied)Petitioners at all events argue that their written statements were obtained through deceit, promise, trickery and scheme, they claiming that Lily dictated to them their contents. There is nothing on record, however, buttressing petitioners' claim other than their self-serving assertion. The presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and conscience[35] such that it is presumed to be voluntary until the contrary is proved thus stands.[36]
In criminal cases, an admission is something less than a confession. It is but a statement of facts by the accused, direct or implied, which do not directly involve an acknowledgment of his guilt or of his criminal intent to commit the offense with which he is bound, against his interests, of the evidence or truths charged. It is an acknowledgment of some facts or circumstances which, in itself, is insufficient to authorize a conviction and which tends only to establish the ultimate facts of guilt. A confession, on the other hand, is an acknowledgment, in express terms, of his guilt of the crime charged.[41]The issue on the admissibility of petitioners' respective extra-judicial statements aside, an examination of the rest of the evidence of the prosecution does not set petitioners free.
Mere circumstance that petitioners were employees of Western does not suffice to create the relation of confidence and intimacy that the law requires.[45] The element of grave abuse of confidence requires that there be a relation of independence, guardianship or vigilance between the petitioners and Western.[46] Petitioners were not tasked to collect or receive payments. They had no hand in the safekeeping, preparation and issuance of invoices. They merely assisted customers in making a purchase and in demonstrating the merchandise to prospective buyers.[47] While they had access to the merchandise, they had no access to the cashier's booth or to the cash payments subject of the offense.
Q : As an accountant employee since June 1995, Mr. Witness, you are familiar that in the procedure in any particular branch of Western Marketing Corporation, are you aware if somebody buys an item from one store, do you know the flow of this sale? A : Yes, sir. Q : In fact, in the store there are employees which are assigned with specific duties or functions, is it not? A : Yes, sir. Q : Like for instance, let's take the case of Filipina Orellana. Her function is merely to entertain customers who go to the store and intend to buy one of the items that aredisplayed, is it not? A : Yes, sir. Q : So, if this customer is resolved to buy one item, Filipina Orellana as a sales clerk, all she has to do is to refer the particular customer to another employee of the company, is that correct? A : Yes, sir. Q : Now, you have also employees who are preparing invoices, they are called invoicers, is it not? A : Yes, sir. Q : So when Filipina Orellana refers this customer to the invoicer, the invoicer now will take over from that function of Filipina Orellana after referring this customer? A : Yes, sir. Q : And this invoicer now will refer the invoice for this particular item for payment to the cashier of the company, is it not? A : Yes, sir. Q : And it is the cashier who will receive the payment from this customer? A : Yes, sir. And in fact, the customer or the cashier will receive the exact amount of payment as reflected in the invoice that was prepared by the invoicer, is it not? Yes, sir. Q : From that point up to the payment, Filipina Orellana has no more hand in that particular transaction, her function is only to entertain and refer the customer for sales purposes, that is correct? A : Yes, sir.[44] (Emphasis, underscoring and italics supplied)