G.R. No. 218969. January 18, 2021
FERNANDO PANTE Y RANGASA PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
HERNANDO, J.:
of the Regional Trial Court (RTC), Branch 33 of Pili, Camarines Sur in
Criminal Case No. P-3806 which found petitioner Fernando Pante y Rangasa (Pante) guilty beyond reasonable doubt of the crime of Theft.
The Factual Antecedents:
An Information[5] dated June
1, 2005 was filed before the RTC of Pili, Camarines Sur against
petitioner Pante and his two minor co-accused, charging them with the
crime of Theft under Article 308, par. 2, subparagraph (1) of the
Revised Penal Code (RPC) as follows:
That [sometime] on December 11, 2004, in barangay Palestina,
Pili, Camarines Sur, Philippines, and within the jurisdiction of the
Honorable Court, the said accused, conspiring, confederating and helping
one another, without the consent of the owner, nor force, violence or
intimidation, after having found the amount of US$4,550.00 or
(P254,800.00) and P27,000.00, belonging to Dawson D. Word, and without
delivering the same to its owner or authority, and once in possession of
said amount, with intent to gain, did then and there willfully,
unlawfully and feloniously, convert the said amount for their own
personal use and benefits, to the damage and prejudice of Dawson D.
Word.ACTS CONTRARY TO LAW.[6]
Upon arraignment, Pante and his two co-accused entered separate pleas of “not guilty.”
On December 10, 2004, Dawson Word (Word) dropped by the People’s Mart in
Naga City, Camarines Sur with his househelper, Angie Beroño (Beroño),
to buy fish. He was carrying US$4,550.00 and P27,000.00 bundled together
in a rubber band placed on his lap. Word gave Beroño P1,000.00 to buy
fish and arranged his remaining money while waiting inside the car. When
Beroño returned, Word placed the bundle of money on his lap between his
legs and drove back to his apartment.[7] He parked his car in front of his residence and forgot the money that he placed on his lap.[8]
Apparently, upon alighting from the car, the bundled money fell on the
road near his vehicle.
bundle of money lying on the ground near Word’s car. Meanwhile, one of
Pante’s co-accused, who was riding his bike outside, also noticed the
bundle of money and picked it up before going inside his house.[9]
He began searching for it in his car but could no longer find it. With
the help of his landlord, Word learned that Pante’s minor co-accused
picked up the bundled money near his car.[11]
of his money. Upon investigation, it was found that Pante’s minor
co-accused was indeed the finder of the money. The police headed to the
minor’s residence where accused-minor admitted that he found the bundle
of money under Word’s car.[12]
He also averred that the money was shared among his other co-accused,
who is a cousin and also a minor, Pante, and himself. His parents
returned the US$1,300.00 to Word, as evidenced by the receipt[13]signed
by his father.
minor, who admitted getting US$500.00 but could no longer return the
same because he already spent it.[14]
Thereafter, the police proceeded to the house of Pante, who also
admitted that he received US$1,700.00. He was able to return US$300.00,
P4,660.00, one unit of JVC component, and a gas stove with a tank. Pante
also gave a receipt[15] from
Monton Hardware, where he bought construction materials. Seeing that
some of the materials were already used, the police did not retrieve
them anymore. Thereafter, all the money and items recovered from the
three accused were returned to Word.
The accused-minor testified that while riding his bike in the morning of
December 11, 2004, he found 30 pieces of US$100 bills near Word’s car,
but no Philippine currency. The accused-minor testified that while riding his bike in the morning of
December 11, 2004, he found 30 pieces of US$100 bills near Word’s car,
but no Philippine currency.[16]
He kept the money in his pocket and proceeded to deliver bread.
Afterwards, he went to his co-accused cousin to ask him what to do with
the money. While they were talking, Pante overheard their conversation.
Being the only adult among them, Pante told them to get the money and
proceed to the tree house. On their way to the tree house, Pante grabbed
the money and counted it. Thereafter, he got 17 pieces of US$100 dollar
bills for himself. His co-accused cousin received US$500.00 while he
kept US$2,350.00. Pante went home with his share and never returned.[17]
the same day Word lost his money. However, he gave it back to his cousin
so he could return it to Word.
6:30 p.m., he saw his two co-accused pass by the back of the bakery
where he was working. They were carrying items like Playstation and new
shoes. He asked them where they got the money to buy those things and
learned that one of them found a bundle of dollar bills. He admitted
receiving 10 dollar bills from his co-accused as his “balato.” He
kept the money for a few days then exchanged them to Philippine
currency. He used the money to buy a JVC component, a gas stove with a
tank, and a CD cassette.[18]
When police authorities came to his house on December 21, 2004 demanding
return of the money, he told his wife to get the remaining US$300.00
and P4,660.00 and turned it over to them.[19]
In its January 23, 2013 Judgment, the RTC found all three accused guilty
beyond reasonable doubt of the crime of Theft. The evidence submitted
by the prosecution proved that Word lost his money and that the
accused-minor was the finder thereof, and who shared the cash he found
with his co-accused cousin and Pante, the latter both knowing where the
money came from. While the trial Court was convinced that Word lost
dollar bills in the amount of US$4,450, the prosecution failed to prove
that he also lost money in Philippine currency. It found that Pante got
US$1,700.00, while the two accused-minor netted US$500.00 and
US$2,350.00 each.
return the money. Instead of encouraging them to return the cash, Pante
got a portion for himself and headed home. Thus, the trial court did not
give credence to Pante’s position that he did not have any interest in
keeping the money. Neither can his act of returning the money be
considered voluntary since he already knew that Word was looking for his
lost money and he only returned it upon the arrival of police
authorities in his house.
WHEREFORE, in view of all the foregoing judgment, judgment is hereby rendered as follows:
x x x x
3. Finding the accused FERNANDO PANTE, “GUILTY” beyond reasonable
doubt of the crime of theft under Article 308, par. 1 of the Revised
Penal Code and imposing the penalty of imprisonment ranging from 2 years 4 months and 1 day of prision correctional as minimum to 9 years and 1 day of prision mayor as maximum. He is ordered to pay the private complainant Dawson Word the sum of P59,120.00 as actual damages.SO ORDERED.[21] (Emphasis in the original)
Aggrieved, Pante appealed[22]
the judgment of conviction before the CA, arguing that the prosecution
did not prove his guilt beyond reasonable doubt. First, the prosecution
did not present any proof of ownership over the money that Word had
allegedly lost.[23] Moreover, he argued that Word’s knowledge of Pante’s participation in the crime was based solely on his co-accused’s averments[24]
which are only circumstantial evidence that cannot warrant his
conviction. Lastly, Pante posited that there was no unlawful taking of
the money on his part because the finder of the lost money was his
co-accused and not himself. Not knowing where it came from, he averred
that he did not have any intent to take money belonging to another.[25] On the other hand, the People, through the Office of the Solicitor
General (OSG), maintained that Pante’s guilt was clearly established
beyond reasonable doubt. No less than the petitioner himself admitted in
open court that he knowingly received US$1,000.00 from the lost money.
General (OSG), maintained that Pante’s guilt was clearly established
beyond reasonable doubt. No less than the petitioner himself admitted in
open court that he knowingly received US$1,000.00 from the lost money.[26] His co-accused also testified that Pante actually took US$1,700.00 and insisted they keep the money to themselves.[27]
money, and the remaining cash amounting to US$300.00 and P4,660.00,
support such allegations. The OSG further contended that Pante is
considered a “finder in law” and guilty of Theft even if the original
finder of the money was his co-accused because he failed to return the
same despite knowledge that it was lost property.[28]
The CA, in its assailed February 6, 2015 Decision,[29] affirmed the RTC’s ruling. The dispositive portion thereof reads:
WHEREFORE, premises considered, the instant appeal is hereby DENIED.
The Judgment dated January 23, 2013 of the Regional Trial Court, Branch
33, Pili, Camarines Sur finding accused-appellant Fernando Pante y
Rangasa guilty beyond reasonable doubt of the crime of Theft defined
and penalized under Article 308, par. 2, subpax. (1) of the Revised
Penal Code and to pay private complainant Dawson Word the sum of
P59,120.00 as actual damages is AFFIRMED WITH MODIFICATION in that appellant is ordered to suffer the penalty of imprisonment of 2 years 4 months and 1 day of prision correccional, as minimum to 13 years of reclusion temporal, as maximum.SO ORDERED.[30] (Emphasis in the original)
Undeterred, Pante filed the instant the Petition for Review on Certiorari[31] raising the following –
Issues:
(A) WHETHER THE [CA] ERRED IN AFFIRMING THE CONVICTION OF
THE PETITIONER FOR THE CRIME CHARGED DESPITE THE PROSECUTION’S FAILURE
TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.(B) WHETHER THE [CA] ERRED IN CONVICTING THE PETITIONER FOR THE CRIME
CHARGED DESPITE THE PROSECUTION’S FAILURE TO ESTABLISH THAT HE CONSPIRED
WITH [HIS CO-ACCUSED] IN THE COMISSION OF THE CRIME OF THEFT.[32]
Our Ruling
The Petition is unmeritorious.
Pante’s guilt beyond reasonable doubt of the crime of Theft. Under
Article 308, par. 2 (1) of the RPC, Theft is also committed by one’s
failure to deliver lost property to its owner or local authorities.[33]
In this kind of Theft, it is essential to prove: 1) the finding of lost
property; 2) the failure of the finder to deliver the same to the local
authorities or its owner.[34]
that the prosecution witnesses were able to prove that Word lost his
bundled money after alighting from his car in front of his residence and
forgetting that he had placed them in between his legs. Such fact was
corroborated by the prosecution witness who testified that he positively
saw the accused-minor pick up the bundle of money under Word’s car.
accused-minor who found the bundle of money in front of the bakery,
which they later divided among themselves in the following manner:
US$1,700.00 for Pante; and US$500.00 and US$2,350.00 for each of the two
accused-minor. Despite knowing that the money did not rightfully belong
to them, Pante encouraged the two minor accused to keep the money for
themselves. He also appropriated the money for himself by buying various
items such as a JVC component, gas tank, and construction materials. He
only returned the remainder of the money to Word when police
authorities showed up in his house.[35]
positive identification of the accused by the prosecution witness than
the accused’s denial and explanation concerning the commission of the
crime.[36] Mere denials are
only self-serving evidence whose evidentiary weight cannot outweigh the
declaration of credible witnesses who testified on affirmative matters.[37]
calibration of the testimonial evidence of the parties as well as its
conclusion on its findings, are accorded high respect if not conclusive
effect.[38] This is because of
the unique advantage of the trial court to observe, at close range, the
conduct, demeanor and deportment of the witness as they testify. [39]
This rule applies even more when such findings are affirmed by the
appellate court. When the trial court’s findings have been affirmed by
the appellate court, said findings are generally binding upon this
Court.[40]
is not the finder of the lost property, we are not persuaded. The
question of whether criminal appropriation of found property can be
committed by a person other than the one by whom the property is first
found has been lengthily discussed and answered in the affirmative in People v. Avila,[41] viz.:
From a comparison of the definitions given above it is
obvious that the most fundamental notion in the crime of theft is taking
of the thing to be appropriated into the physical power of the thief,
which idea is qualified by other conditions, such as that taking must be
effected animo lucrandi and without the consent of the owner;
and it will be here noted that the definition does not require that the
taking should be effected against the will of the owner but merely that
it should be without consent, — a distinction of no slight no sight
importance.Upon these considerations it is evident that the taking and
appropriation of a thing by one who finds it, knowing the same to have
been misplaced or lost by the true owner, and with knowledge of his
identity, is legitimately within the classical definition of theft; and giving expression to the second subsection of article 517 of
the Penal Code the authors of the Code have merely extended the general
definition to a special case about which otherwise some doubt might
have existed; and we cannot impute to them the clumsy mistake of having
imported into the law of theft a form of offense foreign to that
conception and which should properly have been incorporated in the
chapter dealing with estafa.What has been said is of the greatest practical importance in dealing
the problem now in hand, for it determines the proper point of view for
the correct interpretation of the provision relating to the theft of
found property; namely, the provision should be interpreted according to
its true spirit and conformably with the doctrines that inform it. If
we had discovered that this form of theft is really a species of estafa
wrenched from its proper associations and artificially placed under a
heading where it does not belong, much could be said in favor of a
strict and literal interpretation; but when it is made to appear that
the criminal misappropriation of found property is theft upon general
principles of jurisprudence and not some other crime, it becomes obvious
that the provision in question should be applied in accordance with its
true spirit.What then is the meaning of the second subsection of article 517, in so
far as it affects the case before us? The words used in the law are
literally these: “Those are guilty of theft: … 2. Who, finding a lost
thing, and knowing who the owner is, appropriate it with intent to
gain.” The gist of this offense is the furtive taking and
misappropriation of the property found, with knowledge of its true
ownership; and the word “finding” (in Spanish, encontrandose)
must not be treated as a cabalistic or sacramental first finder. The
furtive appropriation of the found property, under the conditions
stated, is the principal thing. In the case before us, the accused if
not the actual finder, occupied towards the purse, from the time he took
it into his hands, precisely the same relation as if he had picked it
up himself. The purpose of the law is to protect the owner of the lost
thing from appropriation by the person into whose hands it may come,
with knowledge of its ownership. The accused was a finder in law, if not
in fact; and his act in appropriating the property was of precisely the
same character as if it had been originally found by him.[42]
x x x x
The same writer then passes on to a proposition more directly connected
with the case now before us, since it relates to the act of
misappropriation by one who receives the property by voluntary
substitution from the actual finder. Upon this the rule there formulated
is this: “One who receives property from the finder thereof assumes,
in legal contemplation, by voluntary substitution, as to the property
and the owner, the relation occupied by the finder, placing himself in
the finder’s stead. In such a case, whether the person taking the
property is guilty must be determined on the same principles that govern
in the case of the actual finder.” (17 R. C. L., 36.)In Allen vs. State (91 Ala., 19) some children found a pocketbook
containing money and certain papers sufficient to identify the owner.
Upon arriving home, the children delivered the purse to their father,
who converted it of his own use. It was held that the accused was
properly convicted and that his guilt was to be determined by the same
principles that would have government if he had been the actual finder.
In the course of the opinion the following language was used:“… Finding it, and its delivery to the defendant by the
finder, did not deprive the money, as to the owner of the character
status of lost property; the ownership remained in him, drawing to it,
constructively, the right of possession. When defendant took the
money from his children, he knew it had been lost, and took it as such.
It is manifest the children had no felonious intent, and properly
delivered the money to their father for his disposition. By receiving it
from his children, knowing it was lost, defendant assumed, in legal
contemplation, by voluntary substitution, as to the money and the owner,
the relation occupied by the finders, placing himself in their stead.
Otherwise a person knowingly receiving lost properly from the finder,
who had no intent to steal, with the felonious intent to appropriate it
to his own use, escapes punishment. In such case, whether or not the
person taking the money principles which govern in the case of the
actual finder.”[43] (Emphasis supplied)
In fine, a “finder” under Article 308, par. 2(1) of the RPC is not only limited to the actual finder of the lost property[44] since the gist of the offense is the furtive taking and misappropriation of the property found [45]
Though not the actual finder, there is no dispute that Pante knew for a
fact that his two co-accused minor did not own the subject money. He
knew for a fact that his co-accused minor merely found the money along
the road while the latter was delivering bread.[46]
Instead of returning the money, Pante convinced his co-accused minors
not to return the money and to divide it among themselves. At that
moment, Pante placed himself precisely in the situation as if he was the
actual finder. Otherwise stated, petitioner was a “finder in law,” if
not in fact; and his act in appropriating the money was of precisely of
the same character as if it had been originally found by him.[47]
His criminal intent to commandeer the money found was altogether clear
at that point.
fathom. It is precisely to protect the owner of the lost property in the
event the lost property is transferred from one individual to another
and to prevent the “finder in law” from escaping liability by claiming
that he was not the actual finder thereof but was merely entrusted
custody thereof by someone who had no intention to appropriate the same.
“Otherwise a person knowingly receiving lost property from the finder,
who had no intent to steal, with the felonious intent to appropriate it
to his [or her] own use, escapes punishment. In such case, whether or
not the person taking the money is guilty of [theft] must be determined
on the same principles which govern in the case of the actual finder.”[48] Having obtained possession of Word’s lost money, Pante had the
opportunity and the obligation to return the lost property to its
rightful owner or to the local authorities, but he unjustifiably
refrained from doing so. Assuming for the sake of argument that he did
not know that the money belonged to Word, Pante would still be held
liable for Theft for failing to return the amount. This is because the
RPC does not require that the thief must know the owner of the lost
property.
opportunity and the obligation to return the lost property to its
rightful owner or to the local authorities, but he unjustifiably
refrained from doing so. Assuming for the sake of argument that he did
not know that the money belonged to Word, Pante would still be held
liable for Theft for failing to return the amount. This is because the
RPC does not require that the thief must know the owner of the lost
property.[49] This is
precisely why the subject penal provision gave the finder the option to
return the lost property not only to the owner thereof but also to the
local authorities.[50]
issue on conspiracy for the first time on appeal. On this point, we heed
Rebadulla v. Republic,[51] where it was pronounced that:
It is well-settled that no question will be entertained 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.[52]
Clearly, issues raised for the first time on appeal will not be
entertained because to do so would be contrary to the principles of
fairness and due process.[53]
As such, we agree with the findings of the RTC and the CA in finding
petitioner guilty beyond reasonable doubt of the crime of Theft.
imposed upon petitioner pursuant to Republic Act (RA) No. 10951,[54] which became effective during the pendency of the case.[55]
The Act provides that its retroactivity shall be given effect insofar
as it is favorable to the accused or person serving sentence by final
judgment.[56] Hence, it is
applicable to petitioner’s case.
under Article 309 of the RPC, as amended by Section 81 of RA No. 10951,
is prisión correccional in its minimum and medium periods[57] which ranges from six (6) months and one (1) day to four (4) years and two (2) months.[58]Applying the Indeterminate Sentence Law, the minimum term of the penalty shall be taken from the penalty next lower in degree i.e., arresto mayor in its medium and maximum periods,[59]
or anywhere from two months and one day to six (6) months. Hence,
petitioner must suffer a minimum indeterminate penalty of four months
and 20 days of arresto mayor, as minimum to two (2) years, eleven (11) months, and ten (10) days of prision correccional,
as maximum.
P59,120.00 shall earn interest at the rate of six percent (6%) per annum from finality of this Decision until fully paid.
for lack of reversible error on the part of the Court of Appeals. The
February 6, 2015 Decision and June 9, 2015 Resolution of the Court of
Appeals in CA-G.R. CR No. 36219 are hereby AFFIRMED WITH MODIFICATION
in that petitioner Fernando Pante y Rangasa is sentenced to suffer the
penalty of imprisonment of four (4) months and twenty (20) days of arresto mayor, as minimum, to two (2) years, eleven (11) months, and ten (10) days of prision correccional,
as maximum. He is also ordered to pay private complainant the amount of
P59,120.00 as actual damages, with interest at the rate of six percent
(6%) per annum from date of finality of this Decision until fully paid.
Delos Santos, J., please see separate concurring opinion.
Rosario, J., on official leave.
[1] Rollo, pp. 10-27.
[2] CA rollo, pp. 67-83;
penned by Associate Justice Ramon R. Garcia and concurred in by
Associate Justices Leoncia R. Dimagiba and Maria Elisa Sempio Diy.
[3] Id. at 105-106.
[8] TSN, March 13, 2008, p. 26.
[9] Id.
[10] Id. at 27.
[11] TSN, July 18, 2008, pp. 5-6.
[14] TSN, October 3, 2008, pp. 4-6.
[16] TSN, May 19, 2010, PP. 9-10.
[17] TSN, July 1, 2010, pp. 3-12.
[18] TSN, August 10, 2011, pp. 5-8.
[20] Records, pp. 327-338; see also rollo, pp. 65-76.
[22] CA rollo, pp. 18-32.
[25] Id.
[30] Id. at 82-83.
[31] Rollo, pp. 10-27.
[32] Id. at 17-18.
[36] Fantastico v. Malisce, Sr., 750 Phil. 120, 133-134 (2015), citing People v. Alvarado, 341 Phil. 725, 734 (1997).
[37] Id. at 134.
[38] Id. at 135.
[39] Id., citing People v. Dumadag, 661 Phil. 664, 673 (2011).
[41] 44 Phil 720, 723 (1923).
[44] Reyes, L., 2012. The Revised Penal Code Book II. 18th ed. p.747.
[48] Id. at 730-731.
[50] Id.
[53] Punongbayan-Visitacion v. People of the Philippines, 823 Phil. 212, 222-223 (2018).
entitled “An Act Adjusting the Amount or the Value of Property and
Damage on Which a Penalty Is Based, and the Fines Imposed Under the
Revised Penal Code, Amending for the Purpose Act No. 3815, Otherwise
Known as “The Revised Penal Code,” as Amended. Approved: August 27,
2019.
[55] Republic Act No. 10951, Sec. 102 provides:
Section 102. Effectivity. — This Act shall take effect
within fifteen (15) days after its publication in at least two (2)
newspapers of general circulation.
[56] Republic Act No. 10951, Section 100.
[57] Republic Act No. 10951, Section 81 provides:
Section 81. The penalty of prision correccional in
its minimum and medium periods, if the value of the property stolen is
more than Twenty thousand pesos (P20,000) but does not exceed Six
hundred thousand pesos (P600,000).
[58] The range of prision correccional in its minimum and medium periods is as follows:
Minimum: Six months and one day to one year, eight months and 20 days.
Medium: One year, eight months and 21 days to two years, 11 months and 10 days.
Maximum: Two years, 11 months and 11 days to four years and two months.
[59] The range of arresto mayor in its medium and maximum periods is as follows:
Minimum: Two (2) months and one (1) day to three (3) months and ten (10) days.
Medium: Three (3) months and eleven (11) days to four (4) months and twenty (20) days.
Maximum: Four (4) months and twenty-one (21) days to six (6) month
SEPARATE CONCURRING OPINION
DELOS SANTOS, J.:
I concur with the ponencia ably-written by my esteemed colleague,
Associate Justice Ramon Paul L. Hernando, and submit this Opinion to
express my thoughts and stress on some particular points.
Petitioner Fernando Pante y Rangasa (Pante) was charged with theft under Article 308, paragraph 2 (1), of the Revised Penal Code (RPC), which provides:
Article 308. Who are liable for theft. x x x
Theft is likewise committed by:
- Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
x x x x
Reading the above provision, it is noteworthy that it does not matter if
the finder knows the true owner of the lost property for him to be
convicted of the crime of theft for failure to return the same. As
pointed out in the ponencia, the RPC does not require that the
thief must know the owner of the lost property; the subject penal
provision gives the finder the option to return the lost property not
only to the owner thereof but also to the local authorities. This is an
apparent change from the second subsection of Article 517 of the 1870 Codigo Penal,
enforced in the Philippines prior to the effectivity of the Revised
Penal Code in 1932, which requires that the finder must have knowledge
of the identity of the true owner of the misplaced or lost thing,[1] to wit: “Son
reos de hurto: … (2) Los que encontrándose una cosa perdida y
sabiendo quién es su dueño se la apropriaren co intentión de lucro”[2] or, if translated, says, “Those are guilty of theft:…. 2. Who, finding a lost thing, and knowing who the owner is, appropriate it with intent to gain.”[3]
Relevant to the above discussion is the provision under Article 719 of
the New Civil Code of the Philippines which sheds light on a situation
where the finder of a lost property does not know the owner of the thing
found. It provides:
Article 719. Whoever finds a movable, which is not
treasure, must return it to its previous possessor. If the latter is
unknown, the finder shall immediately deposit it with the mayor of the
city or municipality where the finding has taken place.The finding shall be publicly announced by the mayor for two consecutive
weeks in the way he deems best.If the movable cannot be kept without deterioration, or without expenses
which considerably diminish its value, it shall be sold at public
auction eight days after the publication.Six months from the publication having elapsed without the owner having
appeared, the thing found, or its value, shall be awarded to the finder.
The finder and the owner shall be obliged, as the case may be, to
reimburse the expenses.
As it stands now, the proper thing for a finder of a lost property of
unknown owner, except hidden treasure, to do is to return or turn it
over to the proper authority, who is the mayor of the city or
municipality where the finding has taken place. Thereafter, the
provision in Article 719 shall apply. Nevertheless, the failure, per se, to turn it over to the mayor does not constitute the crime of theft. People v. Rodrigo[4] instructs that there must be a deliberate failure on the part of the finder to return the lost thing. Thus:
[U]nder paragraph 2, subparagraph (1), the elements are (1)
the finding of lost property; and (2) the failure of the finder to
deliver the same to the local authorities or to its owner. In this kind
of theft intent of gain is inferred from the deliberate failure to deliver the lost property to the proper person, the finder knowing that the property does not belong to him.
As such, if a finder of lost thing of unknown owner turns it over to
other local authorities or to any individual with the instruction or
intention of returning it to the owner or to the proper authority, he
could not be held guilty of the crime of theft. Such action negates the
intent not to return the thing to the proper persons, much less an
intent to gain or to appropriate the lost property. On the other hand,
if the finder uses or appropriates the thing found or keeps the same for
an unreasonable period of time, he is certainly guilty of theft. Such
action constitutes a deliberate failure to deliver the lost property to
the proper persons which is punished under Article 308 paragraph 2 (1).
In this case, the actions of Pante clearly establish that there was a
deliberate intention on his part not to return or turn over the lost
dollar bills he received from his minor co-accused to the owner or to
the proper authority. First, he knew that the dollar bills were not
owned but were just found by his minor co-accused.[5] Second, he took a portion of the lost dollar bills, kept the same for a few days, and exchanged them to Philippine Currency.[6]
Third, he instructed his minor co-accused not to return the money.
Fourth, he used the money to buy JVC component, a gas stove with a tank,
a CD cassette, and construction materials.[7]
Concomitantly, not only that Pante did not have the intention to return
the lost property to the owner or to proper authorities, he likewise
appropriated the same for his own gain and benefit. Thus, he is guilty
of the crime of theft.
Furthermore, I agree with the ponencia in rejecting Pante’s argument that he cannot be convicted of theft because he is not a finder of the lost property. The ponente has appropriately cited the case of People v. Avila[8]
to elucidate that the finder under Article 308, par. 2 (1) is not
limited to the actual finder or “finder in fact” of the lost property
but also extends to the “finder in law” or one who receives the lost
property from the actual finder and then appropriates the same or
deliberately fails to return it to the owner or to proper authorities.
I must stress, though, that for one to be considered a “finder in law”
and be held guilty for the crime of theft, he must have received the
lost property from the actual finder who has no intention to appropriate
the said property. This is the scenario under which the ruling in People v. Avila (Avila)
was arrived at by the Court. In that case, it was the driver of the
carretela which actually found the purse containing money, gold coins,
and jewels, left by his passenger inside the aforesaid carriage. He,
however, handed the purse to the accused therein, who happened to be
police officer, and asked him to deliver it to the owner. The accused
therein, instead of returning it, appropriated the purse with all its
contents. Accordingly, the Court pointed out the principal question in
the said case to wit:
The principal question presented for consideration is one of
law x x x. In other words, is this form of theft limited to the actual
finder, using the word in its literal and most limited sense, or does it
include misappropriation by any one into whose hands the property may be placed by the actual finder for delivery to the true and known owner? x x x
In ruling that the accused is guilty of theft, the Court in Avila
held that “the accused occupied towards the purse, from the time he
took it into his hands, precisely the same relation as if he had picked
it up himself.”[9] It
underscored that “the accused was a finder in law, if not in fact; and
his act in appropriating the property was of precisely the same
character as if it had been originally found by him.”[10]
Citing English and American jurisprudence, the Court further ruled that
“one who receives property from the finder thereof assumes, in legal
contemplation, by voluntary substitution, as to the property and the
owner, the relation occupied by the finder, placing himself in the
finder’s stead. In such a case, whether the person taking the property
in guilty must be determined on the same principles that govern in the
case of the actual finder.”[11] To further support its stand, the Court cited the American case of Allen v. State (Allen)[12] and held:
In [Allen], some children found a pocketbook containing
money and certain papers sufficient to identify the owner. Upon arriving
home, the children delivered the purse to their father, who converted
it to his own use. It was held that the accused was properly convicted
and that his guilt was to be determined by the same principles that
would have governed if he had been the actual finder. In the course of
the opinion the following language was used:* * * Finding it, and its delivery to the defendant by the
finder, did not deprive the money, as to the owner, of the character or status
of lost property; the ownership remained in him, drawing to it,
constructively, the right of possession. When defendant took the money
from his children, he knew it had been lost, and took it as such. It is manifest the children had no felonious intent,
and properly delivered the money to their father for his disposition.
By receiving it from his children, knowing it was lost, defendant
assumed, in legal contemplation, by voluntary substitution, as to the
money and the owner, the relation occupied by the finders, placing
himself in their stead. Otherwise a person knowingly receiving lost
property from the finder, who had no intent to steal, with the
felonious intent to appropriate it to his own use, escapes punishment.
In such case, whether or not the person taking the money is guilty of
larceny must be determined on the same principles which govern in the
case of the actual finder.
Based on the foregoing pronouncements and under the circumstances in which Avila
was decided by the Court, and at the expense of being repetitive, I am
of the opinion that for one to be considered a “finder in law” and be
held guilty for the crime of theft, he must have received the lost
property from the actual finder who has no intention to appropriate the
same. I find this compelling to point out due to my humble opinion that
if the actual finder already has the deliberate intention not to return
the lost property, then he is the one who should be held liable as a
principal in the crime for theft and that the persons who receive or
profit from the stolen property should only be considered as a fence,
which under our present laws may be punished as an accessory under
paragraph 3 of Article 19 of the RPC[13] to the crime of theft, or as a principal in the crime of fencing under Presidential Decree No. 1612,[14] otherwise known as the “Anti-Fencing Law of 1979.”[15]
Having said that, let me explain why Pante is properly convicted as a
principal in the crime of theft and not merely considered as a fence.
It may be recalled that when Pante’s minor co-accused found the lost
bundle of dollar bills, he went to his cousin, the other minor
co-accused, and Pante.[16] At
this point in time, there was no deliberate intent yet on the part of
said minor co-accused not to return the lost property to its owner or to
the proper authorities as the said minor actual finder did not know yet
what to do with the money.[17]
Then came Pante, who, being the only adult among the accused, got hold
of the lost money, took 17 pieces of US$100.00 dollar bills for himself
and instructed the two minor co-accused not to return the money.[18]
At that moment, by taking a portion of the lost money, Pante became a
“finder in law” with respect to the amount he took from the actual
finder-minor accused. He assumed, in legal contemplation, the relation
occupied by the actual finder with respect to the property and the
owner. This obliged him to return the lost and found property to the
owner or to the proper authorities. Instead, Pante appropriated the
aforesaid amount for himself which makes him liable as principal in the
crime of theft. It may not be amiss to point out that it was only after
Pante took possession of a portion of the lost property and only after
giving instruction to the two minor co-accused to keep the money for
themselves that the actual finder-minor accused’s intention not to
return the money became manifest and deliberate when he acceded to
Pante’s instruction and began appropriating the money he found.
Based on the foregoing disquisitions, I vote to DENY the petition and AFFIRM the Decision of the Court of Appeals with MODIFICATION as to the penalty imposed against petitioner Fernando Pante y Rangasa, as discussed in the ponencia.
[1] See People v. Avila, 44 Phil. 720 (1923).
[2] See Valenzuela v. People, G.R. No. 160188, June 21, 2007.
[3] People v. Avila, supra note 1.
[4] 123 Phil. 310 (1983).
[5] Ponencia, p. 3.
[6] Id. at 4, 6-7.
[7] Id. at 7.
[8] Supra note 1.
[9] Id.
[10] Id.
[11] Id.
[12] 91 Ala., 19.
[13] Article 19. Accessories.
– 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:
- By profiting themselves or assisting the offender to profit by the effects of the crime.
- By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.
- By harboring, concealing, or assisting in the escape of the
principals of the crime, provided the accessory acts with abuse of his
public functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some other crime.
[14] Section 2 of PD 1612
defines Fencing as “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 other
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.” The same Section also states that a
Fence “includes any person, firm, association, corporation or
partnership or other organization who/which commits the act of fencing.”
(Cahulogan v. People, G.R. No. 225695, March 21, 2018)
[15] In Dizon-Pamintuan v. People
(G.R. No. 111426, July 11, 1994, 234 SCRA 63), the Court held that
while a Fence may be prosecuted either as an accessory of Robbery/Theft
or a principal for Fencing, there is a preference for the prosecution of
the latter as it provides for harsher penalties.
[16] Ponencia, pp. 3-4.
[17] Id. at 6-7.
[18] Id. at 3-4, 6-7, 9.