[G.R. No. 134298.

August 26, 1999]

RAMON C. TAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

FACTS
Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose
Abad Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare
parts for boats. Manuelito Mendez was one of the employees working for her. Sometime in
February 1991, Manuelito Mendez left the employ of the company. Complainant Lim noticed
that some of the welding rods, propellers and boat spare parts, such as bronze and stainless
propellers and brass screws were missing. She conducted an inventory and discovered that
propellers and stocks valued at P48,000.00, more or less, were missing. Complainant Rosita Lim
informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez
was arrested in the Visayas and he admitted that he and his companion Gaudencio Dayop stole
from the complainants warehouse some boat spare parts such as bronze and stainless propellers
and brass screws. Manuelito Mendez asked for complainants forgiveness. He pointed to
petitioner Ramon C. Tan as the one who bought the stolen items and who paid the amount of
P13,000.00, in cash to Mendez and Dayop, and they split the amount with one
another. Complainant did not file a case against Manuelito Mendez and Gaudencio Dayop.
ISSUE
Whether or not the petitioner is guilty of having committed the crime of fencing
HELD
Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez
confessed that he stole those items and sold them to the accused. However, Rosita Lim never
reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her
former employee, confessed to the unlawful taking of the items, she forgave him, and did not
prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private
complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we
cannot hold for certain that there was committed a crime of theft. Thus, the first element of the
crime of fencing is absent, that is, a crime of robbery or theft has been committed.
There was no sufficient proof of the unlawful taking of anothers property. True, witness
Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from
complainant to petitioner. However, an admission or confession acknowledging guilt of an
offense may be given in evidence only against the person admitting or confessing.[15] Even on
this, if given extra-judicially, the confessant must have the assistance of counsel; otherwise, the
admission would be inadmissible in evidence against the person so admitting.[16] Here, the extrajudicial confession of witness Mendez was not given with the assistance of counsel, hence,
inadmissible against the witness. Neither may such extra-judicial confession be considered

evidence against accused.[17] There must be corroboration by evidence of corpus delicti to sustain
a finding of guilt.[18] Corpus delicti means the body or substance of the crime, and, in its
primary sense, refers to the fact that the crime has been actually committed.[19] The essential
elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3)
the taking away was done with intent of gain; (4) the taking away was done without the consent
of the owner; and (5) the taking away is accomplished without violence or intimidation against
persons or force upon things (U. S. vs. De Vera, 43 Phil. 1000).[20] In theft, corpus delicti has
two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by
felonious taking.[21] In this case, the theft was not proved because complainant Rosita Lim did
not complain to the public authorities of the felonious taking of her property. She sought out her
former employee Manuelito Mendez, who confessed that he stole certain articles from the
warehouse of the complainant and sold them to petitioner. Such confession is insufficient to
convict, without evidence of corpus delicti.[22]
What is more, there was no showing at all that the accused knew or should have known that
the very stolen articles were the ones sold to him. One is deemed to know a particular fact if he
has the cognizance, consciousness or awareness thereof, or is aware of the existence of
something, or has the acquaintance with facts, or if he has something within the minds grasp
with certitude and clarity. When knowledge of the existence of a particular fact is an element of
an offense, such knowledge is established if a person is aware of a high probability of its
existence unless he actually believes that it does not exist. On the other hand, the words should
know denote the fact that a person of reasonable prudence and intelligence would ascertain the
fact in performance of his duty to another or would govern his conduct upon assumption that
such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court
cannot penetrate the mind of an accused and state with certainty what is contained therein, it
must determine such knowledge with care from the overt acts of that person. And given two
equally plausible states of cognition or mental awareness, the court should choose the one
which sustains the constitutional presumption of innocence.[23]
Without petitioner knowing that he acquired stolen articles, he can not be guilty of
fencing.[24]
Consequently, the prosecution has failed to establish the essential elements of fencing, and
thus petitioner is entitled to an acquittal.
WHAT IS FENCING and THEFT?
Fencing, as defined in Section 2 of P.D. No. 1612 is the act of any person who, with intent
to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of
value which he knows, or should be known to him, to have been derived from the proceeds of the
crime of robbery or theft.[3]
Robbery is the taking of personal property belonging to another, with intent to gain, by
means of violence against or intimidation of any person, or using force upon things.[4]
The crime of theft is committed if the taking is without violence against or intimidation of
persons nor force upon things.[5]

The law on fencing does not require the accused to have participated in the criminal design
to commit, or to have been in any wise involved in the commission of, the crime of robbery or
theft.[6]
Before the enactment of P. D. No. 1612 in 1979, the fence could only be prosecuted as an
accessory after the fact of robbery or theft, as the term is defined in Article 19 of the Revised
Penal Code, but the penalty was light as it was two (2) degrees lower than that prescribed for the
principal.[7]
P. D. No. 1612 was enacted to impose heavy penalties on persons who profit by the effects
of the crimes of robbery and theft. Evidently, the accessory in the crimes of robbery and theft
could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in
the latter case, the accused ceases to be a mere accessory but becomes a principal in the crime of
fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and fencing, on the
other, are separate and distinct offenses.[8] The State may thus choose to prosecute him either
under the Revised Penal Code or P. D. No. 1612, although the preference for the latter would
seem inevitable considering that fencing is malum prohibitum, and P. D. No. 1612 creates a
presumption of fencing[9] and prescribes a higher penalty based on the value of the property.[10]
In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the
crime of fencing as follows:
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of the crime of robbery
or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells,
or in any manner deals in any article, item, object or anything of value, which has been derived
from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or anything of
value has been derived from the proceeds of the crime of robbery or theft; and
4. There is on the part of the accused, intent to gain for himself or for another.[11]
Consequently, the prosecution must prove the guilt of the accused by establishing the
existence of all the elements of the crime charged. [12]

[G.R. No. 113433. March 17, 2000]

LUISITO P. BASILIO, petitioner, vs. THE COURT OF APPEALS, HON. JESUS G.
BERSAMIRA, and FE ADVINCULA, respondents.
FACTS
On July 23, 1987, Simplicio Pronebo was charged by the Provincial Fiscal of Rizal with
the crime of reckless imprudence resulting in damage to property with double homicide
and double physical injuries.[4] The case was docketed as Criminal Case No. 70278.
"That on or about the 15th day of July, 1987 in the municipality of Marikina, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the said accused,
being then the driver and person in charge of a dump truck with plate no. NMW-609
owned and registered in the name of Luisito Basilio, without due regard to traffic laws,
rules and regulations and without taking the necessary care and precaution to prevent
damage to property and avoid injuries to persons, did then and there willfully, unlawfully
and feloniously drive, manage and operate said dump truck in a careless, reckless,
negligent and imprudent manner as a result of which said dump truck being then driven
by him hit/bumped and sideswiped the following vehicles, to wit: a) a motorized tricycle
with plate no. NF-2457 driven by Benedicto Abuel thereby causing damage in the
amount of P1,100.00; b) an automobile Toyota Corona with plate no. NAL -138 driven
by Virgilio Hipolito thereby causing damage in the amount of P2,190.50 c) a motorized
tricycle with plate no. NW-9018 driven by
Ricardo Sese y Julian thereby causing damage of an undetermined amount d) an
automobile Mitsubishi Lancer with plate no. PHE-283 driven by Angelito Carranto
thereby causing damage of an undetermined amount and 3) a Ford Econo Van with
plate no. NFR-898 driven by Ernesto Aseron thereby causing damage of an
undetermined amount; that due to the strong impact caused by the collision, the driver
Ricardo Sese y Julian and his 3 passengers including Danilo Advincula y Poblete were
hit/bumped which directly caused their death; while the other 2 passengers, namely;
Cirilo Bangot sustained serious physical injuries which required medical attendance for
a period of more than 30 days which incapacitated him from performing his customary
labor for the same period of time and Dominador Legaspi Jr. sustained physical injuries
which required medical attendance for a period of less than nine days and incapacitated
him from performing his customary labor for the same period of time.
On March 27, 1991, petitioner Luisito Basilio filed with the trial court a "Special
Appearance and Motion for Reconsideration"[6] praying that the judgment dated
February 4, 1991, be reconsidered and set aside insofar as it affected him and
subjected him to a subsidiary liability for the civil aspect of the criminal case. The motion
was denied for lack of merit on September 16, 1991.[7] Petitioner filed a Notice of
Appeal[8] on September 25, 1991. Mis spped

On September 23, 1991, private respondent filed a Motion for Execution of the
subsidiary civil liability[9] of petitioner Basilio.
On April 7, 1992, the trial court issued two separate Orders. One denied due course and
dismissed Basilios appeal for having been filed beyond the reglementary period.[10] The
other directed the issuance of a writ of execution against him for the enforcement and
satisfaction of the award of civil indemnity decreed in judgment on February 4, 1991. [11]
Aggrieved, petitioner filed a petition for certiorari[12] under Rule 65 of the Revised Rules
of Court with the Court of Appeals, alleging that respondent judge acted without
jurisdiction or with grave abuse of discretion in issuing: (1) the Order dated September
16, 1991, denying the petitioners motion for reconsideration of the judgment dated
February 4, 1991 insofar as the subsidiary liability of the petitioner was concerned, and
(2) the Order dated April 7, 1992, directing the issuance of a writ of execution against
the petitioner. Before the appellate court, petitioner claimed he was not afforded due
process when he was found subsidiarily liable for the civil liability of the accused
Pronebo in the criminal case.
ISSUE
Whether or not the court erred and committed grave abuse of discretion in denying the
special civil action under Rule 65.
HELD
The statutory basis for an employers subsidiary liability is found in Article 103 of the
Revised Penal Code.[17] This liability is enforceable in the same criminal proceeding
where the award is made.[18] However, before execution against an employer ensues,
there must be a determination, in a hearing set for the purpose of 1) the existence of an
employer-employee relationship; 2) that the employer is engaged in some kind of
industry; 3) that the employee is adjudged guilty of the wrongful act and found to have
committed the offense in the discharge of his duties (not necessarily any offense he
commits "while" in the discharge of such duties; and 4) that said employee is
insolvent.[19]
There are two instances when the existence of an employer-employee relationship of an
accused driver and the alleged vehicle owner may be determined. One during the
criminal proceeding, and the other, during the proceeding for the execution of the
judgment. In both instances, petitioner should be given the opportunity to be heard,
which is the essence of due process.[21]
Petitioner knew of the criminal case that was filed against accused because it was his
truck that was involved in the incident.[22] Further, it was the insurance company, with
which his truck was insured, that provided the counsel for the accused, pursuant to the
stipulations in their contract.[23] Petitioner did not intervene in the criminal proceedings,
despite knowledge, through counsel, that the prosecution adduced evidence to show
employer-employee relationship.[24] With the convicts application for probation, the trial

courts judgment became final and executory. All told, it is our view that the lower court
did not err when it found that petitioner was not denied due process. He had all his
chances to intervene in the criminal proceedings, and prove that he was not the
employer of the accused, but he chooses not to intervene at the appropriate time. Nex
old
Petitioner was also given the opportunity during the proceedings for the enforcement of
judgment. Even assuming that he was not properly notified of the hearing on the motion
for execution of subsidiary liability, he was asked by the trial court to make an
opposition thereto, which he did on October 17, 1991, where he properly alleged that
there was no employer-employee relationship between him and accused and that the
latter was not discharging any function in relation to his work at the time of the
incident.[25] In addition, counsel for private respondent filed and duly served on
December 3, 1991, and December 9, 1991, respectively, a manifestation praying for the
grant of the motion for execution.[26] This was set for hearing on December 13, 1991.
However, counsel for petitioner did not appear. Consequently, the court ordered in open
court that the matter be submitted for resolution. It was only on January 6, 1992, that
the petitioners counsel filed a counter-manifestation[27] that belatedly attempted to
contest the move of the private prosecutor for the execution of the civil liability. Thus, on
April 7, 1992, the trial court issued the Order granting the motion for execution of the
subsidiary liability. Given the foregoing circumstances, we cannot agree with petitioner
that the trial court denied him due process of law. Neither can we fault respondent
appellant court for sustaining the judgment and orders of the trial court.