AUDIE ARNADO, PETITIONER, VS. HON. PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 9, TACLOBAN CITY AND THE PEOPLE OF THE PHILIPPINES, PUBLIC RESPONDENTS.
DIY, J.:
A. Order dated June 1, 2011[2] – which denied the demurrer to evidence filed by herein petitioner (then accused) in Criminal Case Nos. 2002-11-605 and 2002-11-606; and
B. Order dated August 9. 2011[3] – which denied petitioner’s Motion for Reconsideration[4] of the Order dated June 1, 2011.
The Antecedents
The instant petition contains the following allegations:
Sometime in 1998, petitioner was retained by Nagkahiusang Mamumuo Sa Isabel (NAMASI), a labor organization, to handle the labor case entitled “NAMASI/Carlito Dahuya vs. Philippine Phosphate Corp.”, docketed as NLRC RAB Case Nos. 3-01033-88, 3-0104-88, and 9-0383-88, then filed with the Regional Arbitration Branch VIII of the National Labor Relations Commission (NLRC).
Petitioner handled the case on a contingent basis, from the arbitral level all the way to the Supreme Court.
After about ten (10) years of litigation, favorable judgment was rendered in favor of NAMASI, and its leaders namely, Wilfredo Abuda, Jovencia Calipayan, and Felipe Cuyos.
The Regional Arbitration Branch VIII released the judgment award to petitioner by virtue of a duly executed special power of attorney.
It is alleged that Wilfredo Abuda (Abuda, for brevity) had already been paid the full amount of his individual award. However, as he was discontented, Abuda allegedly fabricated a Memorandum of Agreement (MOA) wherein he claimed fifteen percent (15%) of the monetary award as attorney’s fees.
Jovencia Calipayan (Calipayan, for brevity) and Felipe Cuyos (Cuyos, for brevity) were directed to report to petitioner’s office to claim their rewards, subject to reasonable identification requirements. Afterwards, they allegedly received their full monetary awards.
Abuda, Calipayan, and Cuyos later filed a complaint for Estafa against petitioner before the Office of the City Prosecutor, Tacloban City.
Abuda insisted on his claim for attorney’s fees as indicated in the MOA, while Calipayan and Cuyos claimed that petitioner misappropriated the awards due them.
In the interim, petitioner filed a civil case for declaration of illegality of the MOA, etc. against private complainants Abuda, Calipayan, and Cuyos. This was docketed as Civil Case No. CEB-25166 before Branch 8, RTC, Cebu City.
After trial, the RTC, Branch 8, Cebu City issued a Decision on March 5, 2004, the dispositive portion of which reads:[5]
PREMISES CONSIDERED, this Court finds for the plaintiff and hereby renders judgment against the defendants:
- Declaring the Memorandum of Agreement (Exh. “D”) executed by the parties on September 20, 1996, illegal and contrary to law;
- Ordering defendant Abuda to return the amount in excess of his entitlement so that part of it may be paid to the co-defendants, after due identification;
- Ordering all defendants to pay to the plaintiff the following:
P50,000 moral damages
P10,000 as attorney’s fees
P5,000 as litigation expenses
SO ORDERED.
Meanwhile, the criminal complaints filed by private complainants Abuda, Calipayan, and Cuyos against petitioner prospered at the Office of the City Prosecutor, Tacloban City, finding probable cause to indict petitioner. As such, on October 23, 2002, two informations for estafa were filed with Branch 9, RTC, Tacloban City (herein respondent court) docketed as Criminal Case Nos. 2002-11-605 and 2002-11-606, viz.:
Criminal Case No. 2002-11-605
INFORMATION[6]
The undersigned City Prosecutor of the City of Tacloban accuses Atty. Audie Arnado of the crime of Estafa, committed as follows:
That on or about the 8th day of June 1997, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud and with grave abuse of confidence, after having received the amount of P925,010.20, representing the 15% of the total award of P6,166,734.64 in NLRC-R8 Labor Case Nos. 3-0103-88 to 3-0113-88 from the NLRCR8 Officials, wherein accused was under the express obligation to remit, account and deliver said amount to NAMASI, represented by complainant Wilfredo Abuda, pursuant to a Memorandum of Agreement entered into between accused and NAMASI, but accused has remitted an amount of P106,500.00 in favor of NAMASI, and once in possession of the said remaining balance amount of P818,510.20, did, then and there, willfully, unlawfully and feloniously, misappropriate, misapply, and convert the said amount of P818,510.20 to his own personal use or benefits, to the damage and prejudice of complainant NAMASI in the aforementioned amount of P818,510.20, Philippine Currency.
CONTRARY TO LAW.
Criminal Case No. 2002-11-606
INFORMATION[7]
That on or about the 8th day of June, 1997, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above named accused, with intent to defraud and with grave abuse of confidence, caused and facilitated the release of the shares of the award of complainant Jovencio Calipayan and Felipe Cuyos, in NLRC-R8 Case Nos. 3-0103-88 to 3-0113-88, in the amount of P29,984.00 each, or for a total amount of P59,968.00, without the consent of said complainants, and having received the said amount in trust for said complainants, and under the obligation to remit, account and deliver the same to the latter, and, once in possession of said amount, did, then and there willfully, unlawfully and feloniously misappropriate, misapply and convert the said amount of P59,968.00 to his own personal use and benefit, to the damage and prejudice of the said complainants in the said amount of P59,968. [sic], Philippine Currency.
CONTRARY TO LAW.
In his effort to have the criminal cases dismissed, petitioner raised the matter to this Court via a petition for certiorari docketed as CA G.R. CEB SP. No. 01670. Petitioner contends that the final and executory decision in Civil Case No. CEB 25166 declaring the MOA a nullity lobs off any basis for the Informations charged against him. On April 20, 2007, this Court, through its Eighteenth (18th) Division, rendered a Decision[8] adverse to petitioner, the dispositive portion of which states:
WHEREFORE, the instant petition is hereby DENIED for lack of merit.
SO ORDERED.
As reason for its ruling, this Court ratiocinated in this wise:
It is clear, therefore, that pursuant to Article 315, par. 1(b) of the Revised Penal Code, herein petitioner may still be prosecuted for estafa notwithstanding the fact that the Memorandum of Agreement, particularly provision no. 3 thereof which states that “fifteen (15%) of the total award shall be given by Atty. Audie Arnado to the union or NAMASI leaders listed above (Abuda & eight others)”, has been declared illegal and without effect. While it is true that the NAMASI leaders no longer have a right over the 15% of the total award in the labor cases and petitioner Arnado is not under any obligation to give the same to them by virtue of the judgment declaring the deed void, the criminal cases for estafa may still prosper upon a showing to the effect that petitioner, rather than remitting the amount of the judgment award that rightfully belonged to NAMASI, misappropriated or converted the same, with intent to defraud and with grave abuse of confidence, to his own personal use and benefit.
On May 28, 2009, petitioner was arraigned. He pleaded not guilty. Thereafter, trial on the merits ensued.
The prosecution presented Abuda as first witness testifying that based on the MOA, he is entitled to 15% of the total award in the labor case entitled “NAMASI/Carlito Dahuya vs. Philippine Phosphate Corp.”, docketed as NLRC RAB Case No. 3-01033-88, 3-0104-88 & 9-0383-88.
Abuda further testified that petitioner failed to remit or deliver said amount to the former, which Abuda is entitled to by virtue of the MOA, and with grave abuse of confidence, misappropriated and converted said amount to petitioner’s own use.
As second prosecution witness, Calipayan testified that petitioner did not remit Calipayan’s share in the judgment award, which petitioner misappropriated and converted to the latter’s own use.
The prosecution failed to present additional witnesses. Consequently, petitioner moved[9] that the prosecution be considered to have waived its right to present additional witnesses and that it be deemed to have rested its case. The RTC granted said motion.[10]
During the March 16, 2011 hearing, the prosecution rested its case while petitioner sought leave of court to file its demurrer to the prosecution’s evidence.[11]
On March 28, 2011, petitioner, with leave of court, filed a demurrer to evidence.[12]
On June 1, 2011, public respondent RTC issued an order denying the demurrer to evidence.
On June 30, 2011, petitioner moved for reconsideration of the same.
On August 9, 2011, the RTC issued an Order denying the motion for reconsideration.
Hence, on October 11, 2011, the instant petition was filed.
Petitioner contends that the MOA was not duly authenticated and proved by the prosecution witnesses and as such, it should not be given any evidentiary value. And even on the supposition that the MOA was duly authenticated and proved, the same had already been declared void in Civil Case No. CEB-25166. As such, the MOA does not create any juridical tie between the parties.
Petitioner also cites part of the ratio decidendi of this Court in CA G.R. CEB SP. No. 01670 wherein it is stated that petitioner is not under any obligation to give to private complainant Abuda or to the NAMASI leaders 15% of the total awards by virtue of the judgment declaring the MOA void. The petitioner avers that no crime of estafa can be committed because the essential element that the accused must be under any obligation or duty to make delivery of, or return the money, is wanting.
It is further argued that in a criminal charge of estafa by misappropriation or conversion, the essential element of the crime is the existence of a fiduciary relationship between the complainant and the accused. Petitioner avers that no fiduciary relationship has been established since the MOA was declared null and void.
Lastly, petitioner argues that no conversion or misappropriation of money on the second charge of estafa has been established by proof beyond reasonable doubt after the prosecution’s second witness, Calipayan, admitted his (Calipayan’s) signature appearing in the satisfaction of judgment. Said signature allegedly proves that petitioner was able to pay private complainant his due share in the judgment award in the labor case. As such, the charge that petitioner had misappropriated the same for his own benefit is bereft of merit.
On the other hand, public respondents argue[13] that under Section 23, Rule 119 of the Rules of Court, “[t]he order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.” Public respondents cites the ruling of the Supreme Court in the case of Simplico Cruz vs. People of the Philippines and Hon. Judge Ernesto S. Tengco,[14] wherein the High Court made a categorical declaration that an order denying a demurrer to evidence may not be reviewed in a special civil action for certiorari since the judicious course of action is to abide by the order of trial prescribed by the Rules of Court and allow the trial court to assess – on the basis of the evidence of both prosecution and defense – the innocence and guilt of the accused.
Public respondents lastly assert that a special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as in this case, calls only for a review of any error arising from the exercise of jurisdiction or lack thereof. A review of the sufficiency of the evidence, which is what the instant petition actually seeks, lies outside the function of certiorari as it intrudes into the prerogatives of Rule 41, under ordinary appeals, where an alleged error of judgment may be subjected to review.
The Ruling of the Court
The petition is bereft of merit.
The apparent and most cogent reason for the denial of this petition is that stated in the Rules of Court itself. According to Rule 119, Section 23 thereof:
Section 23. Demurrer to evidence. — After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
(Emphasis Ours)
Even a cursory reading of the aforecited last paragraph of Section 23, Rule 119 of the Revised Rules on Criminal Procedure would clearly indicate that the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure cannot be availed of to question the propriety of the trial court’s denial of a demurrer.
In the instant case, the respondent court cannot be faulted for acting within the bounds allowed by the applicable rules of procedure. The trial court judge is given ample discretion as regards the denial of the motion for leave of court to file demurrer to evidence or the denial of the demurrer itself. On the other hand, the Supreme Court cautions against the grant of demurrers in this wise:[15]
The granting of a demurrer to evidence should, therefore, be exercised with caution, taking into consideration not only the rights of the accused, but also the right of the private offended party to be vindicated of the wrongdoing done against him, for if it is granted, the accused is acquitted and the private complainant is generally left with no more remedy. In such instances, although the decision of the court may be wrong, the accused can invoke his right against double jeopardy. Thus, judges are reminded to be more diligent and circumspect in the performance of their duties as members of the Bench, always bearing in mind that their decisions affect the lives of the accused and the individuals who come to the courts to seek redress of grievances, which decision could be possibly used by the aggrieved party as basis for the filing of the appropriate actions against them.
And even assuming ex gratia argumenti, that the rules were relaxed for this particular case and certiorari was allowed as a remedy, still, the petition must fail.
A petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure is mainly focused on the issue of whether or not the exercise of the court a quo’s jurisdiction has been attended by grave abuse of discretion amounting to lack or excess of jurisdiction.[16]
The term “grave abuse of discretion” has a specific meaning. An act of a court or tribunal can only be considered as one with grave abuse of discretion when such act is done in a “capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction.”[17] The abuse of discretion must be so patent and gross as to amount to an “evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.”[18] From the foregoing definition, it is clear that the special civil action of certiorari under Rule 65 can only strike down an act for having been done with grave abuse of discretion if the petitioner could manifestly show that such act was patent and gross.[19] But this is not the case here.
Demurrer to the evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue.[20] The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.[21]
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient, therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused.[22]
In the instant case, petitioner relies heavily on his theory that since the MOA had not been authenticated and proved or that the same had already been declared null and void with finality, there is no basis upon which a charge of estafa could stand.
We disagree.
Otherwise known as “swindling”, estafa is committed by any person who shall defraud another by any of the means mentioned in the Revised Penal Code. Petitioner was tried for violation of Article 315 (1) (b) which states that, among others, fraud may be committed with unfaithfulness or abuse of confidence in the following manner:
x x x
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property; x x x
The elements of estafa with abuse of confidence under this provision are as follows:
- That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same;
- That there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt;
- That such misappropriation or conversion or denial is to the prejudice of another; and
- That there is a demand made by the offended party to the offender.[23]
The question of whether or not the foregoing elements could exist even in the absence of the MOA had already been resolved by this Court in CA G.R. CEB SP. No. 01670 wherein We stated that:
x x x the nullity of the Memorandum of Agreement does not determine the guilt or innocence of the accused, herein petitioner, in the estafa case, which would warrant the dismissal of the same since his criminal liability may still be shown thru the presentation of other evidence. x x x
The other incriminating pieces of evidence take the form of: (1) the Special Power of Attorney[24] authorizing petitioner to receive the judgment award in behalf of NAMASI offered as proof of the existence of a trust relationship between petitioner and NAMASI; (2) Acknowledgment Receipts[25] offered as proof that petitioner received sums of money by virtue of the judgment in the labor case; and (3) the testimonies[26] of Abuda and Calipayan offered as proof that petitioner failed to deliver the full amount of the sums due to NAMASI despite repeated demands.
In consideration of such, the twin requirements of sufficiency of evidence for purposes of frustrating a demurrer namely, (a) the commission of the crime, and (b) the precise degree of participation therein by the accused, can both be established by the prosecution’s evidence. Otherwise stated, petitioner’s demurrer cannot be given credence since the respondent court correctly ascertained that there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. Accordingly, the respondent court cannot be said to have acted capriciously or whimsically when it denied petitioner’s demurrer and as such, the allegation that the former acted with grave abuse of discretion is adequately negated.
However, this ruling should in no way serve as basis for a finding of guilt of the accused beyond reasonable doubt. The trial court is in a better position to decide the question. According to the Supreme Court: [27]
x x x Having the advantage of directly observing witnesses, “the trial judge is able to detect that sometimes thin line between fact and prevarication that will determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record by the reviewing court. The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict.
Accordingly, Our finding of sufficiency of evidence is only for the purpose of frustrating the demurrer filed by petitioner, nothing more.
On a last note, We stress that certiorari does not lie to review a trial court’s interlocutory order denying a demurrer to evidence filed after the prosecution had presented its evidence and rested its case. An order denying a demurrer to evidence is interlocutory. It is not appealable. Neither can it be the subject of a petition for certiorari. From such denial, appeal in due time is the proper remedy, not certiorari, in the absence of grave abuse of discretion or excess of jurisdiction, or an oppressive exercise of judicial authority.[28]
In view of all the foregoing, this Court does not find public respondent court to have acted with grave abuse of discretion when it rendered the assailed Orders.
WHEREFORE, premises considered, the instant petition is DENIED. The Orders dated June 1, 2011 and August 9. 2011, both issued by the Presiding Judge of Branch 9, RTC, Tacloban City, are hereby AFFIRMED.
SO ORDERED.
Delos Santos, E.L, (Chairperson) and Maxino, P.A.A., JJ., concur.
[1] Rollo, pp. 3-138.
[2] Id., p. 119.
[3] Id., p. 120.
[4] Id., pp. 111-118.
[5] Rollo, p. 132 (as quoted from the Decision dated April 20, 2007 of the Court of Appeals, Eighteenth Division in CA-G.R. SP. No. 01670, p. 6).
[6] Rollo, pp. 129-130 (as quoted from the Decision dated April 20, 2007 of the Court of Appeals, Eighteenth Division in CA-G.R. CEB SP. No. 01670, pp. 3-4).
[7] Id., p. 130 (as quoted from the Decision dated April 20, 2007 of the Court of Appeals, Eighteenth Division in CA-G.R. SP. No. 01670, p. 4).
[8] Rollo, pp. 127-137.
[9] Rollo, pp. 76-77 (“Motion to Deem Prosecution Waived It’s [sic] Right to Present Additional Evidence and Hold Its Case Closed”).
[10] Id., p. 78 (Order dated April 26, 2010).
[11] Id., p. 190 (COMMENT [On the Motion for the Issuance of Writ of Preliminary Injunction dated 15 February 2012; and, on the Petition for Certiorari dated 30 September 2011], p. 2).
[12] Id., pp. 87-97.
[13] Rollo, pp. 188-199. On September 10, 2012, public respondents filed their “COMMENT (On the Motion for the Issuance of Writ of Preliminary Injunction dated 15 February 2012; and, on the Petition for Certiorari dated 30 September 2011)”.
[14] G.R. No. L-67228, October 9, 1986.
[15] Lito Bautista and Jimmy Alcantara vs. Sharon G. Cuneta-Pangilinan, G.R. No. 189754, October 24, 2012.
[16] Consolidated cases of Ysidoro vs. Leonardo-De Castro, et al., G.R. No. 171513 and People vs. First Division of Sandiganbayan, et al., G.R. No. 190963, February 6, 2012.
[17] Beluso v. Commission on Elections, G.R. No. 180711, June 22, 2010, citing De Vera v. De Vera, G.R. No. 172832, April 7, 2009; Fajardo v. Court of Appeals, G.R. No. 157707, October 29, 2008.
[18] Jose Y. Feria & Maria Concepcion S. Noche, Civil Procedure Annotated (2001), 463.
[19] Beluso v. Commission on Elections, supra note 17.
[20] Black’s Law Dictionary, 5th ed., 1979, p. 390.
[21] Arcangel Gutib vs. Court of Appeals and People of the Philippines, G.R. No. 131209, August 13, 1999.
[22] Id.
[23] Reyes, The Revised Penal Code Criminal Law Book Two (2001), 736.
[24] Rollo, p. 129 (based on the findings of the Court of Appeals in CA G.R. CEB SP. No. 01670).
[25] Id., pp. 79-81 (based on the Joint Formal Offer of Exhibits dated November 9, 2010 filed by plaintiff People of the Philippines through the public prosecutor).
[26] Id., pp. 98-110 (Quoted portions of the Transcript of Stenographic Notes on various dates of the trial were cited in the Comments/Opposition to the [Demurrer to Evidence] filed by the plaintiff People of the Philippines through the public prosecutor on May 27, 2011).
[27] People vs. Antonio, G.R. No. 118311, February 19, 1999.
[28] Narciso A. Tadeo vs. People of the Philippines, G.R. No. 129774, December 29, 1998.