De Alva - Dissenting - Opinion On Jacinto v. People

G.R. No. 162540 GEMMA T. JACINTO v.
PEOPLE OF THE
PHILIPPINES
Promulgated:
July 13, 2009
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DISSENTING OPINION
DE ALVA, J.:
Given the records of this case, the ruling of the majority of the
decision that only impossible crime was committed stems from the factual
impossibility of committing the crime where all the requisites of impossible
crimes are laid down in the Intod decision.1
In its petition for certiorari petition for review on certiorari filed by the
petitioner, Gemma T. Jacinto, seeking the reversal of the Decisions2 of the
Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16,
2003, affirming petitioner's conviction of the crime of Qualified Theft, and
its Resolution dated March 5, 2004 denying petitioner's motion for
reconsideration3. I vote to deny the petition and affirmsaffirm to the decision
of the Court of Appeals.
1 Intod v. Court of Appeals, G.R. No. 103119, October 21, 1992, 215 SCRA 52
2 Penned by Associate Justice Mario L. Guaria III, with Associate Justices Martin S. Villarama,
Jr. and Jose C. Reyes, Jr., concurring; rollo, pp. 70-77.
3 Id. at 86.
The majority decision heavily relies on the decision promulgated in Intod v.

Court of Appeals. In Intod, the Court went on to give an example of an
offense that involvedinvolves factual impossibility, i.e., a man puts his hand
in the coat pocket of another with the intention to steal the latters wallet, but
gets nothing since the pocket is empty. In the case at bar, Werehad it not
been for the fact that the check bounced and the thing unlawfully taken by
petitioner turned out to be absolutely worthless, because the check was
eventually dishonored, the accused would have consummated the crime of
theft. Therefore, the accused is only guilty of an impossible crime.
Contrary to the view of my esteemed colleagues, the above is not a
fair presentation of when will be the crime of theft will be consummated.
To draw in sharp lines to which extent I disagree with some of the
language in the Resolution, my strong objection to the Majority Opinion is
impelled by the strict construction of the elements of crime of theft.
The elements of the crime of theft as provided for inProvided by
Article 3084 of the Revised Penal Code , the elements of the crime of are as
follows: (1) that there beis taking of a personal property; (2) that the said
property belongs to another; (3) that the taking be done with intent to gain;
(4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation
of persons or force upon things.5 Theft becomes qualified when any of the
4 Art. 308 provides for who are liable for theft. 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 latters consent.
5 People v. Sison, G.R. No. 123183, January 19, 2000, 322 SCRA 345, 363364.
following circumstances under Article 3106 isare present: (1) the theft is
committed by a domestic servant; (2) the theft is committed with grave
abuse of confidence; (3) the property stolen is either a motor vehicle, mail
matter or large cattle; (4) the property stolen consists of coconuts taken from
the premises of a plantation; (5) the property stolen is fish taken from a
fishpond or fishery; and (6) the property was taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance.
This representation is strongly be certain that the crime committed by
the accused is at least crime of theft.
From the records of the case, I find that the prosecution sufficiently
established the commission of the crime of qualified theft. (1) the taking of
personal property as shown by the fact that petitioner, as collector for
Mega Foam, did not remit the customer's check payment to her employer
and, instead, appropriated it for herself; (2) the said property belonged to
another the check belonged to Baby Aquino, as it was her payment for
purchases she made; (3) the taking was done with intent to gain this is
presumed from the act of unlawful taking and further shown by the fact that
the check was deposited to the bank account of petitioner's brother-in-law;
(4) it was done without the owner's consent petitioner hid the fact that she
had received the check payment from her employer's customer by not
6 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.
remitting the check to the company; (5) it was accomplished without the use
of violence or intimidation against persons, nor of force upon things the
check was voluntarily handed to petitioner by the customer, as she was
known to be a collector for the company; and (6) it was done with grave
abuse of confidence petitioner is admittedly entrusted with the collection
of payments from customers.
However, as regards the 1st element of taking of personal property, the

majority decision states that the personal property subject of the theft must
have some value, as the intention of the accused is to gain from the thing
stolen. In the case of Yongco v. People7, the Supreme Court held that There
is no dispute that the items (transmission, boom arm, differential assembly,
and I-beam) which are the subject matter of this case belong to the CEO of
Iligan City. There is no dispute that these items, although considered "heap
of scrap," have not yet been declared unserviceable or waste by the proper
authority or office. Nor have they been marked for proper disposal. Unless
properly disposed in accordance with Section 379 of the Local Government
Code, these items are still government properties or owned by the City of
Iligan. In relation with the aforementioned case, the mere taking of the
check itself whether it has been cashed out or not still satisfies the 1 st
element of qualified theft for the check may have any incorporated
value on it.
7 Joel Yongcon and Julieto Laojan v. People of the Philippines, G.R. No.
209373, July 30, 2014
In additionAdditionally, as ruled in People v. Mirto8, the presence of

the first and second elements of qualified theft is abundantly clear. There can
be no quibble that the fund collections through checks payments all
issued payable to cash are personal properties belonging to UCC.
These funds through checks were paid by UCC clients for the deliveries of
cement from UCC. The case of Jacinto is clearly akin to the aforementioned
case whether it satisfies the element of taking of personal property.
Furthermore, Article 6 of the Revised Penal Code defines those three

stages, namely the consummated, frustrated and attempted felonies. A felony
is consummated "when all the elements necessary for its execution and
accomplishment are present. It is clear from the case that the accused
performed all of the acts of execution. The critical distinction instead is
whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of
execution had been performed hinges on the particular statutory definition of
the felony. It is the statutory definition that generally furnishes the elements
of each crime under the Revised Penal Code, while the elements in turn
unravel the particular requisite acts of execution and accompanying criminal
intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit
rea" supplies an important characteristic of a crime, that "ordinarily, evil
intent must unite with an unlawful act for there to be a crime," and
accordingly, there can be no crime when the criminal mind is wanting 9.
8 People v. Mirto, G.R. No. 193479, [October 19, 2011], 675 PHIL 895-915
Accepted in this jurisdiction as material in crimes mala in se,10 mens rea has
been defined before as "a guilty mind, a guilty or wrongful purpose or
criminal intent,"11 and "essential for criminal liability." 12 It follows that the
statutory definition of our mala in se crimes must be able to supply what the
mens rea of the crime is, and indeed the U.S. Supreme Court has
comfortably held that "a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights."13 The criminal statute must
also provide for the overt acts that constitute the crime. For a crime to exist
in our legal law, it is not enough that mens rea be shown; there must also be
an actus reus.
In Valenzuela v. People14, Itit has been said that it is from the actus
reus and the mens rea that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is produced.
Without such a provision, disputes would inevitably ensue on the elemental
question whether or not a crime was committed, thereby presaging the
9 People v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note 29, at 39.
See also Lecaroz v. Sandiganbayan, 364 Phil. 890, 905 (1999).
10 See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.
11 People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW
DICTIONARY, 5th ed., p. 889.
12 Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188
SCRA 475, 490.
13 City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.
Tinga, Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 2004, 435
SCRA 371, 400.
14 Valenzuela y Natividad v. People, G.R. No. 160188, [June 21, 2007], 552
PHIL 381-419
undesirable and legally dubious set-up under which the judiciary is assigned
the legislative role of defining crimes. Fortunately, our Revised Penal Code
does not suffer from such infirmity. From the statutory definition of any
felony, a conclusive passage or term is fixed which shows when the felony is
produced by the acts of execution.
For all the reasons above, I vote to deny the petition.
MIGUIEL A. DE ALVA
Associate Justice

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G.R. No. 162540 GEMMA T. JACINTO v.

The majority decision heavily relies on the decision promulgated in Intod v.

However, as regards the 1st element of taking of personal property, the

In additionAdditionally, as ruled in People v. Mirto8, the presence of

Furthermore, Article 6 of the Revised Penal Code defines those three

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