445 Phil. 813
AZCUNA, J.:
The undersigned Assistant City Prosecutor hereby accuses FELY MERCADO of the crime of QUALIFIED THEFT (Art. 310 of the Revised Penal Code), committed as follows:Appellant pleaded not guilty.[3] After trial, she was found guilty in the aforementioned decision of the trial court that has the following dispositive portion:
That sometime in the month of November, 1995, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused being then employed as manager of the herein offended party, Dobros Agencia de Empeños, Inc. and Dobros Jewelry Store, Bacolod City, herein represented by its treasurer and director, Lilibeth Anglo, with grave abuse of confidence, and obvious ungratefulness by reason of the trust and confidence reposed upon her as such manager of the herein offended party, with intent to gain and without knowledge and consent of the owner thereof, did then and there, wil[l]fully, unlawfully and feloniously take, steal and carry away with h[er] various pieces of jewelry items including the pawned items inside the vault with a total value of NINE MILLION SEVEN HUNDRED NINETY TWO THOUSAND FOUR HUNDRED FIFTY (P9,792[,]450.00) PESOS, Philippine Currency, all belonging to the herein offended party, thus causing damage and prejudice to the latter in the aforementioned amount.[2]
FOR ALL THE FOREGOING, the court finds the accused Fely Mercado GUILTY beyond reasonable doubt of Qualified Theft as Principal by Direct Participation as charged in the Information. She is hereby sentenced to suffer the penalty of [r]eclusion perpetua but with all the accessories of the penalty imposed under Article 40 of the Revised Penal Code. She is also condemned to pay the offended party, DOBROS AGENCIA DE EMPEÑOS the sum of P9,792,450.00 as indemnification for the value of the stolen jewelr[y] and the sum of P50,000.00 as attorney’s fees.
Accused-appellant Fely Mercado was the manager of the Dobros Agencia de Empenos and Dobros Jewelry Store at Libertad Street, Bacolod City. The store was one of the jewelry stores operated by the V.Y. Domingo chain of jewelry stores. She had been with the company since 1996, where she rose from the ranks after starting as a pawnshop clerk, appraiser and finally, manager of the store.Appellant presents her own version of the facts:[5]
As manager, accused-appellant was in-charge of the safety vault of the store and only she was allowed to go inside thereof to get pieces of jewelry. Only accused-appellant and Connie Domingo, a corporate director of the V.Y. Domingo chains of Jewelry Store, knew the lock combination of the outer door vault and were holders of the key of the vault’s inner door. Her duties and responsibilities as manager of the store and as the accountable officer with respect to the jewelry stored therein had been properly relayed to the accused-appellant as shown by an “acknowledgement of accountabilities and responsibilities” wherein accused appellant agreed to answer for all the losses that may be incurred on account of her accountabilities.
On 20 November 1995, an inventory of the store’s jewelry in the vault was conducted by the auditors of the company, namely: Jocelyn Alcantara and Pilar Vicente. The inventory was conducted six months after the last inventory of the store in May 1995. During the 20 November 1995 inventory, it was found that 345 pieces of jewelry kept in the vault were missing, valued at P9,792,450.00. Confronted by this loss, accused-appellant, who was then present during the audit and inventory, readily acknowledged the losses and undertook to pay them.
x x x x x x
The accused-appellant Fely Mercado was first assigned as a bookkeeper, and then assistant appraiser and later on as vault-in-charge of Dobros Agencia de Empeños. The highest position she was holding prior to her separation as an employee was that of manager/appraiser. As such employee, there are other people involved in the management of the said jewelry store such as Mark Quiamco who was the vault keeper in charge of taking out the [pieces of] jewelr[y] from the vault and also the pledged [pieces of] jewelr[y] and he was the one in charge in keeping back the [pieces of] jewelr[y] (p. 19, TSN, October 21, 1997). Clara Lorca was the assistant vault keeper if Mark Quiamco is not around (p. 20, TSN, ibid.) and she also attends to the jewelry store (p. 21, TSN, ibid.) while Jeneth Cuevas was assigned as clerk. All in all, there were four (4) people assigned in the said store (p. 17, TSN, ibid.)
Dobros Agencia de Empeños has a vault inside the store where pieces of jewelry were being kept. There are actually two (2) doors before you can get to the vault (p. 22, TSN, ibid.) The vault [i]s made of steel body in front; the second door is made of steel bars. These two doors were provided with respective locks. The inner door is provided with padlock which can be opened only with a key (p. 24, TSN, ibid.) and the outer door ha[s] a combination lock (p. 25, TSN, ibid[.]), which combination number thereof is known to the accused-appellant and Connie Domingo and if the vault keeper is absent and it is necessary to open the vault it is Connie Domingo that [sic] will open the vault (p. 33-34, TSN, February 28, 1997).
[I]n the month of November an inventory was made wherein the accused-appellant was not present (p. 36, TSN, October 21, 1997) since she was transferred to FS Domingo Pawnshop located in front of Gaisano Department Store on November 24 while the inventory was being made (p. 43, TSN, ibid.). Neither did they inform her what the reason was why she was transferred (p. 43, TSN, ibid.) The inventory usually takes seven days to complete and that the specific date when the inventory was made was on November 21 (p.45, TSN, ibid.). In essence, the inventory was still being conducted when she was transferred to FS Domingo Pawnshop (p. 47, TSN, ibid.) and she does not know when they finished the inventory (p. 47, TSN, ibid.). During an inventory, accused-appellant is required to present some documents before they actually start the inventory. Some of these documents were the Inter Transfer Receipts, Cash lay-away slip and consignment slip (p. 50, TSN, ibid.). Whenever a piece of jewelry is sold, a cash lay-away slip is prepared by the store to show that [the] particular jewelry was sold (p. 60, TSN, ibid.). These cash lay-away slips [are] separately kept in a Tupperware and [kept] inside the vault (p. 61, TSN, ibid.). Since the store can sell an average of 50 jewelry a month, it would amount to 350 items sold covering the period of May to November. These sales of 350 items were all covered by cash lay-away slips (p.63, TSN, ibid.), which the accused-appellant in fact presented to the auditors when the inventory was made (p. 64, TSN, ibid.).
I
THE COURT A QUO GROSSLY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT FOR THE FOLLOWING REASONS:
- NO PLAUSIBLE EVIDENCE RELATING TO THE VALUE OF THE ALLEGED MISSING JEWELRY HAS BEEN CONCLUSIVELY ESTABLISHED BY THE PROSECUTION;
- THE WITNESSES FOR THE PROSECUTION WERE NOT UNQUESTIONABLY CREDIBLE;
- THERE WAS NO SINGLE EVIDENCE, DIRECT OR CIRCUMSTANTIAL, LEADING TO THE CONCLUSION THAT THE ACCUSED TOOK THE JEWELRY SUBJECT MATTER OF THE CRIME CHARGED.
II
THE COURT A QUO GRAVELY ERRED IN RENDERING JUDGMENT UPON CONJECTURES/SURMISES.III
THE COURT A QUO GROSSLY ERRED IN THE IMPOSITION OF THE PENALTY OF RECLUSION PERPETUA WHEN THE PENALTY IMPOSABLE FOR QUALIFIED THEFT SHOULD ONLY BE RECLUSION TEMPORAL THUS ENTITLING THE ACCUSED TO THE BENEFIT OF THE INDETERMINATE SENTENCE LAW.
From the foregoing, the prosecution established that the theft occurred between May 1995 and November 1995. During that period, appellant was never absent from work. Hence, it was only appellant who opened and locked the vault, had total access to the missing jewelry and was always present in the store during the times the vault door was open. Under these circumstances, at no instance could another person take the missing jewelry from the vault without appellant knowing about it. Thus, only appellant could have taken the jewelry or at the very least, assuming it was not appellant, the taking could not be achieved without her indispensible cooperation.
- Appellant is the manager and vault keeper of Dobros.[29]
- Being the manager and vault keeper of Dobros, appellant knows the combination of the vault’s outer door and possesses the key to the vault’s inner grill door.[30]
- Appellant is the only person working in Dobros who can open the vault and is allowed to go in and out of the vault to get jewelry.[31]
- The only other person who knows the combination to the vault’s outer door and has custody of the key to the vault’s inner grill door is Connie Domingo, a member of the Board of Directors of V.Y. Domingo.[32]
- Inside the vault are safety deposit boxes where some of the jewelry are kept and appellant possesses the keys to the safety deposit boxes.[33] Duplicate keys are kept in the main office of V.Y Domingo under the custody of Connie Domingo.[34]
- Connie Domingo opens the vault only if appellant is absent. However, even if the vault has been opened, only pawnshop transactions are made and no jewelry can be taken out while appellant is absent.[35]
- An audit was conducted in May 1995 and nothing was found missing.[36]
- At the next audit, conducted in November 1995, it was found that there were jewelry missing worth P9,792,450.00.[37]
- Between the first and the second audits, appellant was never absent from work.[38]
- All the missing jewelry were previously received by appellant as evidenced by receipts she issued.[39]
- No documents could be found that would show that the missing jewelry have been sold, taken out or transferred to other jewelry branches of V.Y. Domingo.[40]
Appellant claims that it can be interpreted from the above testimony that appellant had authority to bring jewelry out of Dobros, thereby negating the element of taking without consent necessary in the crime of Qualified Theft.[42] This argument fails. The fact that the owner authorized appellant to bring jewelry out of Dobros cannot be interpreted as a license to steal. On the contrary, the testimony cited only bolsters the fact that appellant had the trust and confidence of the owner and, therefore, could take the missing items without much difficulty.x x x
Atty. Lucot: You said that usually there are 2 copies prepared by you and the two copies are kept by the accused. Why do you allow her to keep the two copies and not retain any of the two copies?
Witness [Jeneth Cuevas]: She is the Manager and at the same time she is the appraiser and she has the right to do what she wants to the store.x x x
(TSN, February 22, 1999, pages 36-37)x x x
Court: So, actually, as far as you are concerned this procedure of issuing a consignment receipts is valueless insofar as you are concerned?
Witness [Jeneth Cuevas]: This consignment receipts which we used to issue [to] her because she is in charge of all the items in the store.x x x
(TSN, February 22, 1999, pp.44)
Court: You said that Fely Mercado can go directly to the vault and get the jewelries that she desires to get, am I correct on that?
Witness [Jeneth Cuevas]: Yes, Your Honor.
Court: And so, did you ask Fely Mercado what is the need for her asking you to issue a consignment receipt when it is not recorded insofar as you are concerned and she can go direct to the vault and get the item that she needs, why does she [have] to pass [before] you for a consignment receipt?
Witness [Jeneth Cuevas]: That is her jurisdiction because she is the Manager at the same time the appraiser.x x x
(TSN, February 22, 1999, pages 45-46)[41]
On the other hand, the penalty for Qualified Theft is found in Article 310 of the Revised Penal Code:
- The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.
Art. 310. Qualified theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.Appellant, in her computation of the penalty, did not take into consideration the value of the stolen jewelry. To compute the penalty, we begin with the value of the property stolen, which is P9,792,450.00. Based on the above quoted paragraph, 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 8 years, 8 months and 1 day to 10 years of prision mayor.
It has been repeatedly enunciated that “a client is bound by the action of his counsel in the conduct of a case and cannot be heard to complain that the result might have been different if he proceeded differently. A client is bound by the mistakes of his lawyer. If such grounds were to be admitted as reasons for reopening cases, there would never be an end to a suit so long as new counsel could be employed who would allege and show that prior counsel had not been sufficiently diligent or experienced or learned. x x x Mistakes of attorneys as to the competency of a witness, the sufficiency, relevancy or irrelevancy of certain evidence, the proper defense, or the burden of proof, x x x failure to introduce certain evidence, to summon witnesses, and to argue the case are not proper grounds for a new trial, unless the incompetency of counsel is so great that his client is prejudiced and prevented from properly presenting his case.”In our examination of the records of the case, we found nothing which would indicate that appellant’s former counsel was incompetent or negligent in his defense of appellant. The former counsel was present at and participated in every important stage of the proceedings. When the former counsel could not attend any of the hearings, he would diligently file a motion to that effect or instruct appellant to ask for a resetting,[52] which the trial court would always grant.[53] In no instance did it appear that appellant was denied her day in court.