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SECOND DIVISION

G.R. No. 85204 June 18, 1990

JORGE TAER, Petitioner, vs. THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, Respondents.

After proper proceedings and trial, Saludes and Cago were acquitted but Taer and Namocatcat were convicted. The dispositive portion of the decision of the trial court, dated July 6, 1984, reads as follows:

WHEREFORE, the Court finds accused Emilio Namocatcat and Jorge Taer GUILTY beyond doubt of the theft of large cattle and appreciating against them the aggravating circumstance of nocturnity and pursuant to Presidential Decree No. 533 each is hereby sentenced to undergo the indeterminate penalty of imprisonment of from SIX (6) YEARS and ONE DAY TO FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS, together with the accessory penalties, and to pay the costs; they are entitled to credit for their preventive imprisonment. Accused Mario Cago and Cirilo Saludes are ACQUITTED for insufficiency of evidence. ⁴chanrobles virtual law library

Only Jorge Taer appealed to the Court of Appeals. The Court of Appeals, finding the evidence of the prosecution that conspiracy indeed existed between Emilio Namocatcat and Jorge Taer, affirmed in toto the decision appealed from. But the affirmance did not affect Emilio Namocatcat because, as adverted to earlier, he did not appeal his conviction by the Regional Trial Court.chanroblesvirtualawlibrary chanrobles virtual law library

Hence, this petition for review was filed by Taer alone.chanroblesvirtualawlibrary chanrobles virtual law library

In sum, Taer interposed these twin arguments: chanrobles virtual law library

1. That the extent of his participation did not go beyond the participation of the original defendants Cirilo Saludes and Mario Cago. Therefore, he submits that the acquittal of these two by the trial court should also lead to his acquittal; ⁵chanrobles virtual law library

2. That the only evidence proving the alleged conspiracy between him and Emilio Namocatcat was the confession of his co-accused Emilio Namocatcat. However this should not be considered as admissible because the same is hearsay under the rule of res inter alios
acta. ⁶chanrobles virtual law library

The undisputed facts as found by the trial court show that: chanrobles virtual law library

In the evening of December 5, 1981, accused Cirilo Saludes slept in the house of his compadre accused Jorge Taer at Datag, Garcia-Hernandez, Bohol, whereat he was benighted. At about 2:00 o'clock dawn, December 6, 1981, accused Emilio Namocatcat and Mario Cago arrived at Taer's house with two (2) male carabaos owned by and which Namocatcat wanted Taer to tend. The said carabaos were left at Taer's place.chanroblesvirtualawlibrary chanrobles virtual law library

Tirso Dalde and Eladio Palaca of Lantang, Valencia Bohol discovered in the morning of December 6, 1981 that their respective male carabaos, 3 to 4 years old, were missing at the different grazing grounds whereat they tied the same the afternoon preceding.chanroblesvirtualawlibrary chanrobles virtual law library

After searching in vain for the carabaos at the vicinity, Dalde and Palaca reported the matter to the police. On December 15, 1981, one Felipe Reyes of Hinopolan, Valencia, Bohol, informed Dalde that he saw the latter's lost carabao at Datag, Garcia-Hernandez. Forthwith Dalde and Palaca went on that day to Datag and there they found their missing carabaos tied to a bamboo thicket near the house accused Taer who was then not in the house as he was in Napo, Garcia-Hernandez, attending the fiesta where he cooked for the accused Saludes. Upon query by Dalde and Palaca why their carabaos were found at his place, accused Taer, according to Dalde and Palaca replied that the carabaos reached his place tied together without any person in company. According to accused Taer, what he told Dalde and Palaca was that the carabaos were brought to his place by the accused Namocatcat who asked him to tell anybody looking for them that they just strayed thereat.chanroblesvirtualawlibrary chanrobles virtual law library

The 2 carabaos were taken by Dalde and Palaca from accused Taer's possession on that day, December 15. ⁷

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The Court of Appeals would consider these as proof of the existence of conspiracy:

Altho (sic) accused Taer admitted that before December 6, 1981, he had not met accused Namocatcat since 1975 and had not previously tended any carabao belonging to Namocatcat, it is unbelievable that Taer was not suspicious of the origin of the 2 male carabaos which to say the least were delivered to him to be tended under strange circumstances, to wit, at the unholy hour of 2:00 o'clock dawn after a travel of 14 kilometers' in the dead of the night. He unreservedly accepted the charge of tending them with the agreement as to the sharing of the produce out of said carabaos (sic) use. If, as he asserted, Namocatcat left the carabaos with him with the word that if anybody would look for them he was to tell that the carabaos just strayed into his other carabaos (sic), the more Taer ought to be more suspicious as to the origin of said carabaos, yet, since that dawn delivery on December 6, 1981, until they were retrieved from his possession, he never apprised the barangay captain, living just 2 kilometers away from his house, about the matter. He continued to hold on to the stolen carabaos until they were recovered 10 days later.chanroblesvirtualawlibrary chanrobles virtual law library

Ordinarily, one would not hold on to a thing he suspects to be stolen to obviate any criminal responsibility or implication. But accused Taer did the opposite-a clear indication that he and accused Namocatcat did have some kind of an unlawful agreement regarding the stolen carabaos. He did not even reveal immediately to the authorities that the carabaos delivered to him by Namocatcat were stolen and he tried his best to keep under cover Namocatcat's Identity.chanroblesvirtualawlibrary chanrobles virtual law library

The Court, therefore, finds that conspiracy between accused Namocatcat and Taer in the theft of the carabaos has been established beyond doubt. ⁸ chanrobles virtual law library

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We disagree with the findings of the respondent court; they are mere suspicions and speculations. The circumstances adverted to above do not establish conspiracy beyond reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library

There is conspiracy when two or more persons come to an agreement regarding the commission of an offense and decide to commit it. Although the facts may show a unity of purpose and unity in the execution of the unlawful objective, essential however is an agreement to commit the crime and a decision to commit it. ⁹chanrobles virtual law library

Only recently we emphasized the rule that:

Conspiracy must be established not by conjectures, but by positive and conclusive evidence. The same degree of proof necessary to establish the crime is required to support a finding of the presence of criminal conspiracy, which is, proof beyond reasonable doubt. ¹⁰chanrobles virtual law library

Thus mere knowledge, acquiescence to, or approval of the act, without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy absent the intentional participation in the transaction with a view to the furtherance of the common design and purpose.chanroblesvirtualawlibrary chanrobles virtual law library

At most the facts establish Taer's knowledge of the crime. And yet without having participated either as principal or as an accomplice, for he did not participate in the taking of the carabaos, he took part subsequent to the commission of the act of taking by profiting himself by its effects. Taer is thus only an accessory after the fact.chanroblesvirtualawlibrary chanrobles virtual law library

Article 19 of the Revised Penal Code states:

Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: chanrobles virtual law library

1. By profiting themselves or assisting the offender to profit by the effects of the crime; ¹¹

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person who received any property from another, and used it, knowing that the same property had been stolen is guilty as an accessory because he is profiting by the effects of the crime." By employing the two carabaos in his farm, Taer was profiting by the objects of the theft. ¹²chanrobles virtual law library

On the conspiracy charge, the most cogent proof that the prosecution could ever raise was the implication made by the accused Namocatcat (he did not appeal his conviction to the Court of Appeals) in his affidavit of confession. ¹³chanrobles virtual law library

However, the settled rule is that the rights of a party can not be prejudiced by an act, declaration, or omission of another. ¹⁴chanrobles virtual law library

The testimony, being res inter alios acta, can not affect another except as provided in the Rules of Court. This rule on res inter alios acta specifically applies when the evidence consists of an admission in an extrajudicial confession or declaration of another because the defendant has no opportunity to cross-examine the co-conspirator testifying against him. ¹⁵chanrobles virtual law library

Since this is the only evidence of the prosecution to prove the conspiracy with Namocatcat, this uncorroborated testimony can not be sufficient to convict Taer.chanroblesvirtualawlibrary chanrobles virtual law library

The offense for which Taer is accused is covered by Articles 308, 309, and 310, as amended by "Me Anti-Cattle Rustling Law of 1974. 1116 The penalty imposed on the principal for the crime of cattle rustling is:

Sec. 8. Penal provisions. - Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be imposed. ¹⁷

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Inasmuch as Taer's culpability is only that of an accessory after the fact, under Art. 53 of the Revised Penal Code, the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed.chanroblesvirtualawlibrary chanrobles virtual law library

The penalty two degrees lower than that imposed under the first sentence of Section 8 of PD No. 533 is arresto mayor maximum or 4 months and one day to 6 months to prision correccional medium or 2 years 4 months and 1 day to 4 years and 2 months. In addition, the Revised Penal Code provides that when the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, the courts shag observe the rule that when there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. ¹⁸Hence the imposable penalty would be prision correccional minimum or 6 months and 1 day to 2 years and 4 months imprisonment.chanroblesvirtualawlibrary chanrobles virtual law library

Since the maximum term of imprisonment exceeds one year, we apply the Indeterminate Sentence Law. ¹⁹chanrobles virtual law library

This law provides that the maximum term of imprisonment shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said code which is prision correccional minimum or 6 months and 1 day to 2 years and 4 months. And the minimum shall be within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty next lower would be in the range of destierro maximum or 4 years 2 months and 1 day to 6 years to arresto mayor medium or 2 months and 1 day to 4 months.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the decision rendered by the Regional Trial Court of Tagbilaran and affirmed by the respondent Court of Appeals is hereby MODIFIED in that the herein JORGE TAER is convicted as an accessory of the crime of cattle-rustling as defined and penalized by PD No. 533 amending Arts. 308, 309, and 310 of the Revised Penal Code and he will serve the minimum penalty within the range of arresto mayor medium, which we shall fix at 4 months imprisonment and the maximum penalty of prision correccional minimum which we shall fix at 2 years.chanroblesvirtualawlibrary chanrobles virtual law library

With costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.