Case No. 5 HERNANDO, J GR No. 224316 2021-11-10

 ELIZABETH HORCA v. PEOPLE HERNANDO, J. 

Case No. 5 GR No. 224316 2021-11-10

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The 2004 Rules on Notarial Practice clearly states that "a notary public is disqualified from performing a notarial act if he is a party to the instrument or document that is to be notarized."

Having signed and prepared the instant petition, petitioner's counsel, Atty. Ajay Noreen D.S. Reyes, is disqualified from notarizing the Verification portion of the petition. Given that the petition lacks a proper verification, it ought to be treated as an unsigned pleading.

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Petition for review on certiorari under Rule 45. 

It bears stressing that a petition for review on certiorari under Rule 45 is limited only to questions of law. Factual questions are beyond the purview of this mode of review. Well-settled is the general rule that the jurisdiction of this Court in cases brought before it from the CA is limited to reviewing errors of law.

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 In the case at bar, the petition raises not only questions of law but also of facts. This Court is being asked to analyze or weigh all over again the evidence already considered in the proceedings below. On this score alone, the petition is dismissible. 

Notwithstanding the foregoing, this Court is inclined to adopt a liberal stance and decide the present petition on its merits rather than on a procedural technicality. ln any rate, an appeal in a criminal case opens the entire case for review. 

After a judicious scrutiny of the records, We find the petition to be impressed with merit and accordingly acquit Horca of the crime charged. It is axiomatic that issues raised for the first time on appeal should not be entertained because to do so would be anathema to the rudiments of fairness and due process. 

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In S. C. Megaworld v. Parada, this Court ruled that: 

"lt is well-settled that no question will be entet1ained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is barred by estoppel."

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Nonetheless, even if We were to entertain such argument, the same is without merit because not all misappropriation is estafa. Pideli v. People (Pideli) instructs, to wit: 

"Although there is misappropriation of funds here, petitioner was correctly found guilty of theft. As early as US v. De Vera, the Court has consistently ruled that not all misappropriation is estafa."

Chief Justice Ramon C. Aquino, in his commentary on the Revised Penal Code, succinctly opined: 

"The principal distinction between the two crimes is that in theft the thing is taken while in estcifa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa."

In De Vera, the accused, Nieves de Vera, received from Pepe, an Igorot, a  bar of gold weighing 559.7 grams for the purpose of having a silversmith examine the same, and bank notes amounting to P200.00 to have them exchanged for silver coins. Accused appropriated the bar of gold and bank notes. 

The Court ruled that the crime committed was theft and not estafa since the delivery of the personal property did not have the effect of transferring the juridical possession. thus such possession remained in the owner; and the act of disposal with gainful intent and lack of owner's consent constituted the crime of theft.

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Applying the above jurisprudence in the instant case, Horca was properly charged with the crime of Theft because she was merely entrusted with the material or physical possession of the sum of money which she was supposed to use for the purchase of the 19 airline tickets. 

Juridical possession, which means a possession that gives the transferee a right over the thing transferred and that which he may set up even against the owner, was never shown to have been transferred to petitioner. 

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In any case, this Court rules to acquit .Horca based on reasonable doubt. 

Under Article 308 of the RPC, the crime of theft is committed when the  following elements concur: 

(I) that there be taking of personal property; 

(2) that 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) the taking be accomplished without the use of violence, intimidation, or force upon persons or things. 

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It is a cardinal principle that, in all criminal prosecutions, it is the prosecution that bears the burden to establish the guilt of the accused beyond reasonable doubt. In discharging such burden, the prosecution has the duty to prove each and every element of the crime charged in the information to warrant a finding of guilt for that crime or any other crime that is necessarily included therein. 

Further, the prosecution likewise carries the burden to prove the participation of the accused in the commission of the offense. Corollary thereto, it is essential that the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. 

This burden of proof placed upon the prosecution is anchored on the presumption of innocence granted in favor of the accused, which no less than our Constitution has guaranteed. 

In the case at bar, We find that there is reasonable doubt as to the guilt of the petitioner because the prosecution failed to sufficiently prove the crucial element of taking with intent to gain. 

Animus lucrandi, or intent to gain, is an internal act which can be established through the overt acts of the offender and can be presumed from the unlawful taking. 

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In the case before Us, however, the prosecution failed to adduce any concrete evidence which would show that Horca had taken the cash for her own personal gain. On the contrary, the records show that Horca actually used the money covered by the checks for its intended purpose, i.e., to purchase the airline tickets, albeit only four were initially delivered to Sister Reynolds. This is apparent from Sister Reynolds' testimony where she disclosed that Horca had given her fax copies of the airline tickets prior to the scheduled flight. 

The acquittal of the accused does not automatically preclude a judgment against him on the civil aspect of the case. 

The extinction of the penal action does not carry with it the extinction of the civil liability where: 

(a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; 

(b) the court declares that the liability of the accused is only civil; and 

(c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused is acquitted. However, the civil action based on delict may be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist or where the accused did not c-onm1it the acts or omission imputed to him. 

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Conformably with the foregoing, the civil aspect of the criminal case can survive an acquittal when it is based on reasonable doubt. In this scenario, even though the evidence presented does not establish the fact of the crime with moral certainty, the civil action can still prevail as long as preponderant evidence tilts in favor of a finding of liability.

 "This means that while the mind of the court cannot rest easy in penalizing the accused for the commission of a crime, it nev~rtheless finds that he or she committed or omitted to perform acts which ~erve as a separate source of obligation. There is no sufficient proof that the act or omission is criminal beyond reasonable doubt, but there is a preponderance of evidence to show that  the act or omission caused injury which demands cornpensation." 

WHEREFORE, the petition is GRANTED. The November 13, 2015 Decision and February 18, 2016 Resolution of the Court of Appeals in CA-G.R. CR No. 36346 are REVERSED AND SET ASIDE. Petitioner Elizabeth Horca is hereby ACQUITTED on the ground of reasonable doubt. However, petitioner is ORDERED TO PAY the private complainant the sum of P915,626,50, subject to interest at the rnte of six percent (6%) per annum from the date of finai ity of this judgment until fully paid.