Mabunga v. People : 142039 : May 27, 2004 : J. Carpio-Morales : Third
Division : Decision
[G.R. NO. 142039 : May 27, 2004]
MODESTO Moody MABUNGA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
CARPIO MORALES, J.:
The Court of Appeals having, by Decision of June 30, 1999,1 affirmed that of the Regional Trial Court of Romblon2 convicting appellant Modesto Mabunga of robbery with force upon things under
Article 299 of the Revised Penal Code, he comes to this Court on a Petition for Review .
In the morning of October 2, 1994, employees of the Bureau of
Fire Protection (BFP) including Davy Villaruel (Villaruel) discovered that the
hasp of the door of the BFP office in Barangay Capaclan, Romblon, Romblon was
destroyed, and that the only typewriter in their office, a Triumph bearing
Serial Number 340118640, was missing.
From the testimonies of prosecution witnesses tricycle driver
Sixto Bernardo (Bernardo),
Diana Malay (Diana),
Villaruel, Sylvia Silverio
Comienzo (Sylvia), and SPO2 Eleazar Madali, the prosecution presented its case
Around 3:00 oclock in the afternoon of October 15, 1994, as
Diana was in front of her store in Capaclan, Romblon, Romblon waiting for a
tricycle, she saw appellant, a dealer of marble slabs, who was carrying a box
which bore the marking HOPE and tied with gray straw string, board a pedicab
driven by Bernardo.
Having heard from
her husband Rodolfo Malay who works with the BFP that appellant was the prime
suspect of the police for the robbery at the BFP, Diana immediately informed
her husband of what she saw.
thereupon instructed by her husband to follow appellant.3 cralawred
As Diana noticed that the pedicab was heading for the pier, she
proceeded on foot to the house of Villaruel4 whom she informed of what she had witnessed.
After the lapse of about 5 minutes,5 Villaruel, on board his scooter, proceeded to the pier.
By that time appellant had reached the pier,
alighted from Bernardos tricycle, and unloaded the HOPE box.
In the meantime, Diana contacted Chief of Police Major Ernesto
Madrona at his house.6 cralawred
Appellant, not long after alighting from the tricycle at the
pier, reboarded the same tricycle7 driven by Bernardo, without the box, and headed for his house at Capaclan.
Diana, in fact, saw him on board the
tricycle on his way home.
Diana later boarded the tricycle of Bernardo after the latter
brought home appellant, and repaired to the pier.There, by the gate, she saw Villaruel who confirmed to her that
he had verified from Bernardo, whom he earlier saw by the same gate, that the
latter indeed conveyed appellant to the pier, with a HOPE box.
Diana also learned from Villaruel that he really saw the box
brought by [appellant]. She thus returned on foot to the house of Major
Madrona who instructed SPO2 Eleazar Madali and PO2 Eustaquio Rogero to
surreptitiously watch a box of Hope brand cigarettes placed under a bench
inside the PPA passengers terminal owned by [appellant] and wait until somebody
gets said box and load it aboard the vessel M/V Peafrancia 8.8 cralawred
On Villaruels entering the terminal9 he was told by Sylvia, the cashier on duty at the restaurant therein, that a
man, whom she later identified to be appellant through a photograph shown to
her that same day, entrusted the box to her, he telling her that it contained a
damaged electric fan.10 cralawred
Villaruel thereupon kept watch over the box, as SPO2 Madali and
PO2 Rogero later did discreetly, until M/V Peafrancia departed for Batangas at
8:00 p.m., with appellant on board the same.
About an hour later, PPA officers Reynaldo Dianco and Leo Vedito
Fontellera arrived at the terminal and the box was turned over by them to SPO2
Madali and PO2 Rogero.
The box, when
opened, contained the lost BFP typewriter.
On February 7, 1995, appellant was charged with robbery before
the Regional Trial Court of Romblon, Romblon under an information reading:chanroblesvirtua1awlibrary
That on or about the 1st day of October, 1994, at around
12:00 midnight, in [B]arangay Capaclan, municipality of Romblon, province of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with intent [to] gain, did then and there willfully, unlawfully
and feloniously enter the Office of the Bureau of Fire Protection by forcibly
breaking the door hasp of the main door and upon having gained entry therein,
take, steal and carry away one (1) typewriter (Triumph brand) with Serial No.
340118640, valued at P5,894.00, Philippine currency, belonging to and owned by
the government, without its consent, and to the damage and prejudice of the
government in the aforestated amount.11 cralawred
On arraignment on February 21, 1995, appellant, with the
assistance of counsel, pleaded not guilty.12 Thereafter, trial ensued.
Appellant interposed alibi with respect to the date and place of
occurrence of the alleged robbery.
While he admitted bringing to the pier on October 15, 1994 a box, he
claimed, however, that it bore the marking CHAMPION, not HOPE. At the
witness stand, he gave the following tale:chanroblesvirtua1awlibrary
He left Romblon on September 24, 1994 and arrived in Manila the
After the lapse of 12 hours,
he went to the Cubao station of the Batangas Laguna Tayabas Bus (BLTB) Company
and boarded a bus bound for Matnog, Sorsogon.
He reached Matnog on the afternoon of September 27, 1994 and stayed
there overnight before proceeding to Allen, Samar which he reached on September
He then boarded a jeep bound
for San Jose, Northern Samar where he stayed for one (1) hour, after which he
proceeded to Calbayog City which he reached on September 29, 1994.
He transferred to another jeep bound for
Tacloban and arrived there on September 30, 1994.For a day he stayed in Tacloban to rest, after which he proceeded
to Palo, Leyte to visit his project. He arrived in Palo on October 1,
The next day, he went to Tacloban
City and purchased materials for polishing marble.He returned to Palo and supervised his marble project for a
When the project was finished,
he returned to Cebu on October 6, 1994 and the next day boarded the ferry
[Backwagon] Bay for Romblon.
reached Romblon on October 9, 1994.13 cralawred
In support of his alibi, he presented bus tickets and purchase
receipts of materials, viz:
Exhibit 1 BLTB
ticket No. 60850, dated September 26, 1994, (Cubao to Matnog, Sorsogon)
Exhibit 2 Bus
ticket dated September 28, 1994 issued by E. Tabinas Enterprises to Moody
Mabunga (Matnog, Sorsogon, to Allen, Samar).
Invoice No. 18639 issued on October 2, 1993 by Terrazzo Construction and Marble
Supply to Moody Mabunga.14 cralawred
Appellant further claimed that on the afternoon of October 15,
1994, he, along with his son, boarded the pedicab of Bernardo to which they
loaded a box marked CHAMPION containing marble novelties to be brought to
Manila via Viva Penafrancia 8; on reaching the pier, he laid down the box at
the gate of the PPA and stood beside it as he waited for the ship to dock; and
when he later boarded the ship, he placed the box at the back of his cot.15 cralawred
Finding appellant guilty beyond reasonable doubt of robbery,
Branch 81 of the RTC Romblon sentenced him to suffer an indeterminate penalty
of from 4 years and 2 months of prison correccional, as minimum to 8 years and
1 day of prision mayor, as maximum, with the accessory penalties of the law, and to pay the costs.16 cralawred
The Court of Appeals, in affirming the decision of the trial
court, relied on Section 3(j) Rule 131 of the Revised Rules on Evidence which
SEC. 3. Disputable presumptions. The following
presumptions are satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:
x x x
(j) That a person in possession of a thing taken in the doing of a
recent wrongful act is the taker and the doer of the whole act; otherwise, that
things which a person possesses, or exercises acts of ownership over, are owned
The appellate court having denied his motion for reconsideration,17 appellant lodged the present appeal, ascribing to it the following errors:chanroblesvirtua1awlibrary
1.THE COURT OF APPEALS
GRAVELY ERRED WHEN IT DISREGARDED THE UNIMPUGNED ALIBI OF THE ACCUSED,
NOTWITHSTANDING THE ABSENCE OF POSITIVE IDENTIFICATION.
2.THE COURT OF APEALS
GRAVELY ERRED WHEN IT ADMITTED IN EVIDENCE THE TYPEWRITER, WHICH WAS SEARCHED
WITHOUT WARRANT AND IN THE ABSENCE OF THE ACCUSED.
3.THE COURT OF APPEALS
GRAVELY ERRED WHEN IT PRESUMED THE ELEMENT OF INTENT TO GAIN, WHEN THE
SUPPOSED ACT OF THE ACCUSED IN LEAVING THE BOX TO A STRANGER AND NEVER COMING
BACK TO CLAIM IT NEGATED THE NOTION OF ANIMUS
LUCRANDI.18 (Underscoring supplied)cralawlibrary
The appeal is impressed with merit.
While courts have consistently looked upon alibi with suspicion
not only because it is inherently weak and unreliable as a defense, but because
it can easily be fabricated,19 the basic rule is for the prosecution, upon which lies the onus, to establish
all the elements of a crime to thereby hold him guilty beyond reasonable
Such burden does not shift as it
remains with the prosecution.
with the burden of persuasion, the prosecution must thus rely on the strength
of its evidence and not on the weakness of the defense.20 cralawred
Admittedly, the evidence for the prosecution is
The alleged robbery was
discovered when the employees of the BFP reported for work on October 2, 1994
and noticed that the hasp of the office door was broken and the typewriter was
On the sole basis of the presumption laid down under above-quoted
Section 3(j) of Rule 131 of the Revised Rules on Evidence, the appellate court
affirmed the conviction of appellant.
A presumption is an assumption of fact that the law requires to
be made from another fact or group of facts found or otherwise established in
the action.21 It is an inference as to the existence of a fact not actually known, arising
from its usual connection with another which is known, or a conjecture based on
past experience as to what course of human affairs ordinarily take.22 cralawred
A presumption has the effect of shifting the burden of proof to
the party who would be disadvantaged by a finding of the presumed fact.
The presumption controls decision on the
presumed fact unless there is counterproof that the presumed fact is not so.23 cralawred
In criminal cases, however, presumptions should be taken
with caution especially in light of serious concerns that they might water down
the requirement of proof beyond reasonable doubt.As special considerations must be given to the right of the
accused to be presumed innocent, there should be limits on the use of
presumptions against an accused.
Although possession of stolen property within a limited time from
the commission of the theft or robbery is not in itself a crime, it being
possible to possess the same and remain innocent, such possession may be
sufficient for the formation of an inference that the possessor is the thief
unless the evidence satisfactorily proves that the property was acquired by the
accused by legal means.
How the presumption under Section 3(j) Rule 131 is to be
understood, United States v. Catimbang24 explains:
According to the modern view convictions in cases of this kind are
not sustained upon a presumption of law as to the guilt of the accused.
The conviction rests wholly upon an
inference of fact as to the guilt of the accused.If as a matter of probability and reasoning based on the fact
of possession of the stolen goods, taken in connection with other evidence,
it may fairly be concluded beyond reasonable doubt that the accused is guilty
of the theft, judgment or conviction may properly be entered. x x x
The inference of guilt is one of fact and rests upon the common
experience of men.
But the experience
of men has taught them that an apparently guilty possession may be explained so
as to rebut such an inference and an accused person may therefore put witness
on the stand or go to the witness stand himself to explain his possession, and any
reasonable explanation of his possession, inconsistent with his guilty
connection with the commission of the crime, will rebut the inference as to
his guilt which the prosecution seeks to have drawn from his guilty possession
of the stolen goods.
It is in this sense that it is sometimes said that the unexplained
possession of recently stolen goods will sustain a conviction of the crime of
larceny.25 (Emphasis and underscoring
Before an inference of guilt arising from possession of recently
stolen goods can be made, however, the following basic facts need to be proven
by the prosecution: (1) that the crime was committed; (2) that the crime was
committed recently; (3) that the stolen property was found in the possession
of the defendant; and (4) that the defendant is unable to explain his
possession satisfactorily.26 cralawred
For purposes moreover of conclusively proving possession,
the following considerations have to be emphasized: (1) the possession must be
unexplained by any innocent origin; (2) the possession must be fairly recent;
and (3) the possession must be exclusive.27 cralawred
Contrary to the findings of both the trial and appellate courts,
the People failed to prove beyond reasonable doubt that appellant was caught in
exclusive possession of the recently stolen good.
While possession need not mean actual physical control over the
thing for it may include constructive possession, it is still necessary that for
possession to be deemed constructive the accused knowingly has the power and
the intention at a given time to exercise dominion or control over a thing,
either directly or through another person.28 cralawred
The case of U.S. v. Simbahan29 cited by the appellate court has a different factual setting and is, therefore,
inapplicable to the present case.
In Simbahan, the accused, for a
P50.00 pesos, disclosed to the owner of the missing
carabao its precise location.
this Court held: The word possession as used above can not be limited to
manual touch or personal custody.
who puts or deposits the stolen property in a place of concealment may be
deemed to have such property in his possession. x x xAll the facts and circumstances [including the absence of
a satisfactory explanation of his possession] show conclusively that he had
possession of said caraballa and fully justify his conviction.30 cralawred
The accused in Simbahan exercised
exclusive dominion and control over the thing lost.
Appellant in the present case did not.
The HOPE box was not concealed and anyone entering and leaving
the PPA terminal had access to it, it having been placed just below one of the
benches, around three meters from the cashier, Sylvia.
To assume that in a busy place, such as the PPA terminal, the
HOPE box that was opened by the police authorities and found to contain the
missing typewriter is the same box allegedly entrusted by appellant to
the cashier is to form an inference which is, however, doubtful, more than six
hours having elapsed from the time the box was allegedly left at around 3:00
oclock in the afternoon until it was opened by the police authorities at
around 9:00 oclock in the evening after appellant had already boarded the ship.
A presumption cannot be founded on another presumption.
It cannot thus be concluded that from the
time the box was left under the bench, appellant was still in constructive
possession thereof, the exercise of exclusive dominion or control being absent.
Adding serious doubt to the prosecutions claim is that what was
allegedly seen being carried by appellant and entrusted to the cashier was not
the stolen typewriter but merely a HOPE box.
A review of the transcript of stenographic notes in fact shows
that there are flaws in the prosecutions theory as well as inconsistencies in
the prosecution witnesses testimonies that do not warrant appellants
Why appellant was considered a suspect by the police, no
explanation has been proferred.
records, however, indicate that appellant had previously been indicted before
the Municipal Trial Court for theft.31 On that basis alone, it is non sequitor to point to him as a suspect.
At all events, apart from appellants supposed possession of the
HOPE box on October 15, 1994, no other evidence was adduced by the
prosecution linking him to the robbery.
The teaching of Askew v. United
States32 must thus be heeded:chanroblesvirtua1awlibrary
We have heretofore adverted to the
possession of the instruments or of the fruits of a crime as affording ground
to presume the guilt of the possessor; but on this subject no certain rule can
be laid down of universal application; the presumption being not conclusive
but disputable, and therefore to be dealt with by the jury alone, as a mere
inference of fact.
Its force and value
will depend on several considerations.
In the first place, if the fact of possession stands alone, wholly
unconnected with any other circumstances, its value or persuasive power is very
slight; for the real criminal may have artfully placed the article
in the possession or upon the premises of an innocent person,
the better to conceal his own guilt.
It will be necessary, therefore, for the
prosecutor to add the proof of other circumstances indicative of guilt,
in order to render the naked possession of the thing available towards a
conviction.33 (Emphasis and underscoring
That the fact of possession alone, wholly unconnected with any
other circumstances, cannot be relied with certititude to convict one with
robbery is echoed in People v. Geron :34 cralawred
At any rate, the mere possession by the accused of items allegedly stolen, without
more, cannot conduce to a single conclusion that robbery indeed took place
or at least was the primary motive for the killings.
In the absence of positive and indubitable
evidence showing unlawful taking by the accused by means of violence against or
intimidation of persons, the prosecution cannot rely with certitude on the fact
of possession alone.
The Courts application of the presumption
that a person found in possession of the personal effects belonging to the
person robbed and killed is considered the author of the aggression, the death
of the person, as well as the robbery committed, has been invariably limited to cases where such possession is either
unexplained or that the proferred explanation is rendered implausible in view
of independent evidence inconsistent thereto.35 (Emphasis and underscoring
The appellate court ruled that since it was sufficiently
established that appellant was in possession of the typewriter two weeks after
it was stolen, he had the burden of proving that he was not the one responsible
for the heist.36 While a presumption imposes on a party against whom it is directed the burden
of going forward with evidence to rebut such presumption, the burden of
producing evidence of guilt does not extend to the burden of proving the
accuseds innocence of the crime as the burden of persuasion does not shift and
remains throughout the trial upon the prosecution.
Compounding doubts on the case for the prosecution is its
witnesses differing versions on how and where the box was opened, a fact
necessarily important in determining whether its content was indeed the stolen
On one hand, a member of the PNP, SPO2 Eleazar Madali, testified
during the direct examination by Prosecutor Sy that the box was opened at
the police station:chanroblesvirtua1awlibrary
And what time did the M/V P[e]afrancia 8
About 8:00 oclock in the evening.
And what time was that when you entered the
PPA terminal to see the
May be 3:30 oclock, more or less, the
vessel has not arrive[d] yet.
And also because the vessel has left and the carton [w]as not brought
out, what did you do?chanroblesvirtualawlibrary
coordinate[d] with the PPA about the box that was not taken and it was turned
over to us and we brought it to the police station.
Who was your companion in bringing the box to the police station?chanroblesvirtualawlibrary
SPO1 Rogero, our investigator Victor Miano, Fireman Sim, Dave Villaruel
then we proceeded to the guard of the Romblon Police Station.
And what was done with the box in the police station?chanroblesvirtualawlibrary
we arrived in the PNP Police Station we have the box opened before the guard
and the content of the box was a typewriter.37 (Underscoring supplied)cralawlibrary
On the other hand, the cashier, Sylvia Silverio Comienzo,
testified that the police authorities opened the box inside her small room
in the terminal.
DIRECT EXAMINATION BY PROSECUTOR SY:
The day in which you have identified him as Modesto Mabunga, [did he]
retrieved (sic) that carton from you that same day or afternoon?chanroblesvirtualawlibrary
Who got the carton?chanroblesvirtualawlibrary
The policemen, sir.
And what did the policemen do when they got the carton?chanroblesvirtualawlibrary
They opened it, sir.
you could remember, who were those policemen who got and opened the carton?chanroblesvirtualawlibrary
Madrona, Eustaqio and Mike Villaruel.
did they open that carton?chanroblesvirtualawlibrary
the terminal because I have a small room there.38 (Underscoring supplied)cralawlibrary
On additional direct examination, Sylvia remained adamant in
saying that the box was opened in her small room inside the terminal.
ADDITIONAL DIRECT EXAMINATION
When the policemen as you said got this carton and opened it, where did
the policemen precisely get the carton, from what place precisely?chanroblesvirtualawlibrary
Taken from under the bench.
Where this Moody placed it?chanroblesvirtualawlibrary
PROSECUTOR SY CONTINUING:
Were you personally present when the policemen got the carton from under
the bench where Moody placed it?chanroblesvirtualawlibrary
where did the policemen open the carton?chanroblesvirtualawlibrary
our small room.
Where you personally present when the policemen go the carton and opened
it on that room?chanroblesvirtualawlibrary
Were you personally present when the straw that was used in tying the
carton was cut or untie or loosen by the policemen?chanroblesvirtualawlibrary
were you there present?chanroblesvirtualawlibrary
Because I saw to it what was the content of that box and if it was
really an electric fan.39 (Underscoring supplied)cralawlibrary
Without doubt, the trial court is in the best position to assess
the credibility of witnesses firsthand and observe their demeanor, conduct and
attitude under grilling examination.
examination of the records shows, however, that, as indicated by the trial
judges following comments on prosecution witness Villaruels answers to the
questions posed to him during his direct examination, the prosecution evidence
leaves much to be desired.
COURT:Very familiar.This witness is a very typical witness. You are just waiting for
Atty. Sy to finish his question for you to say what you have been in your mind
regardless of the question but you will just continue what you have already in
your mind without thinking about the question.
But remember his question, when the question is asked it will appear in
your mind, it should be the other way around, do you understand?
You forget what is in your mind, concentrate
on the question.
You listen to the
You are like a tape recorder.
You just switch on and then you continue, no
you wait for the question.40 cralawred
Then again, during the cross examination of the same witness, the
trial court gave the following observation on his demeanor:
COURT:The statement of the Court that you are like a
fish in outer space is more applicable to you.
You are like a fish in outer space, meaning, you are a police science
graduate, meaning, that your career is to be a policeman and a police officer,
an officer of the law.
You are now in
the court of law, you should then feel comfortable in a court of law like a
fish in the water you should be comfortable in a court of law because that is
part of your career but the way we look at it you are like a lawyer who just
graduated, took the bar and then become an office employee not practicing law
in the courtroom so that when the lawyer comes to Court, he will not come to
Court, he is afraid of the courtroom although he is a lawyer he is afraid of
the courtroom.41 (Underscoring supplied)cralawlibrary
Finally, logic, common knowledge and human experience teach that
it is unlikely that a robber would represent himself to be the owner of a stuff
which he knows contains stolen property and seek the help of a third person to
look after it.
In fine, the life, liberty and property of a citizen may not be
taken away on possibilities, conjectures or even, generally speaking, a bare
At all events, appellants alibi, for which he submitted
documentary evidence, has not been discredited by the prosecution.
WHEREFORE, the decision on review is hereby REVERSEDand SET ASIDEand appellant, Modesto Moody Mabunga, is hereby ACQUITTEDof the crime of robbery.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.
3 TSN, June 19, 1995 at 4-5.
5 TSN, August 29, 1995 at 23.
6 TSN, June 19, 1995 at 6.
8 Exhibit C, Records at 111.
9 TSN, August 29, 1995 at 7-8.
10 TSN, August 19, 1996 at 4-5.
11 Records of the Regional Trial Court at 1.
13 TSN, February 6, 1997 at 3-11.
15 TSN, June 11, 1997 at 7-9.
21 Blacks Law Dictionary(6th
ed. 1990) at 1185.
22 Martin v. Court of Appeals, 205 SCRA
591 (1992) at 595.
23 A. Bautista, Basic Evidence,
(2004) at 283 citing Mueller and Kirkpatrick, 3.4.
25 U.S. v. Catimbang, supra at
26 R.J. Francisco, Evidence, (3rd
ed., 1996) at 419-420.
27 9 J.H. Wigmore, A Treatise on the
Anglo-American System of Evidence in Trials at Common Law, (3rd
ed., 1940) sec. 2513 at 422.
28 Blacks Law Dictionaryat 1163.
30 United States v. Simbahan,19 Phil. 123 (1911) at 125.
31 TSN, December 6, 1995 at 25.
33 Askew v. United States, 2 Okl.Cr. 155
at 159 (1900) citing Greenleaf, 31.
37 TSN, December 6, 1995 at 8-9.
38 TSN, August 19, 1996 at 6.
40 TSN, August 29, 1995 at 7.
42 A. Bautista, Basic Evidence(2004)
at 297, citing New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 79
P.2d 948 (1938).
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