ANTONIO AVECILLA, APPELLANT-PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND HON. COURT OF APPEALS, APPELLEES-RESPONDENTS.

This is a petition for review on certiorari of the
decision dated December 20, 1976 of the Court of Appeals in CA-G.R. No.
16628-CR entitled “People of the Philippines v. Antonio Avecilla”
modifying the decision of July 16, 1973 of the then Court of First Instance of
Rizal, Branch 1 at Pasig finding the accused-petitioner guilty of simple theft
by convicting the accused-petitioner instead of qualified theft and imposing on
him accordingly, a higher penalty.

The accused-petitioner, Antonio Avecilla and one Juana Doe were
charged before the said lower court of the crime of theft, allegedly committed
as follows:

“That on or about the 16th day of November, 1971, in the
municipality of Mandaluyong, province of Rizal, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and
mutually helping and aiding one another, with intent of gain and without the
knowledge and consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and carry away one Registered Letter
number 247341, delivery number 3752, valued at $500.00 belonging to one Lourdes
Rodriguez de Lacson to the damage and prejudice of the latter in the
aforementioned amount of $500.00, U.S. Dollar.

Contrary to law.”^[1]

Upon arraignment, Antonio Avecilla entered a plea of not guilty
to the crime charged.^[2]

On the other hand, to prove his guilt, the prosecution presented
the following witnesses:

1.  Lourdes Rodriguez de
Lacson, an employee of Litton Mills, Inc., testified that her sister, Maria
Paz, a resident of Milwaukee, Wisconsin, U.S.A., sent her a registered letter
containing a bank draft worth $400.00 (not $500.00 as alleged in the
information). She came to know about
this registered letter through another sister Carmencita Rodriguez, who, on
December 17, 1971, also received another letter from Maria Paz, inquiring
whether she (witness) had received Registered Letter No. 247341, which was
addressed to her at Litton Mills, Inc.^[3]

Since she did not receive the registered letter with the bank
draft, Lourdes went to the Mandaluyong Post Office and inquired about it. She was informed by the Postmaster and the
teller that Registered Letter No. 247341 addressed to her was claimed on
November 16, 1971 by one Antonio Avecilla, whom they knew had been messenger of
Litton Mills, Inc. for more than two years. That Avecilla got the subject letter was shown by the registry notice
duly signed by him.^[4]

Lourdes further testified that she filed a complaint in their
office, as a result of which an investigation was conducted by the personnel
officer of Litton Knitting Mills. Antonio Avecilla admitted in her presence
that he took the said registered letter, but when she demanded its return, he
refused to do so. Hence, she filed a
complaint with the police.^[5]

On cross-examination, Lourdes stated that on December 23, 1971,
she made an overseas call to her sister, Maria Paz, to request her to stop the
payment of the bank draft. As a result,
she was informed by Maria Paz through their sister, Carmencita Rodriguez, that
a “stop payment” order had already been made to the drawee bank.^[6]

2.  Rosalinda Cervo,
Clerk-in-charge of the registry section of Mandaluyong Post Office, declared
that on November 15, 1971, she received a letter for Mrs. Lourdes Lacson, with
a given address at “Litton Knitting Mills.” She then issued the
corresponding registry notice to the addressee which she sent through the
letter carrier. The following day,
November 16, 1971, Antonio Avecilla went to the post office to claim the registered
letter. He presented the registry notice
addressed to Lourdes Lacson with her signature appearing thereon, signed it in
her presence and introduced to her a woman as Mrs. Lourdes Lacson who signed
the control book.

She further testified that inasmuch as Antonio Avecilla had been
the authorized messenger of Litton Knitting Mills since 1969, she entrusted
Registered Letter No. 247341 to him. However, she got to meet the lady who seemed to be the true Mrs. Lacson
when the latter went to the post office to complain about the letter that she
(Mrs. Lacson) had not received. When
shown the control book with her alleged signatures, Mrs. Lacson repudiated the
same as hers.

Subsequently, when Rosalinda Cervo informed Avecilla about Mrs.
Lacson’s complaint, he declared that he had placed the letter on the table of
Mrs. Lacson.^[7]

3.  Federico Rivera, Sr.,
Postmaster of Mandaluyong, Rizal, testified that Litton Mills, through George
Litton, Sr., had previously written him a letter, authorizing one Antonio
Avecilla to accept “registered mails, i.e., checks, parcels and
letters” for their company and employees.^[8] He
recalled that on November 16, 1971, a registered letter addressed to Mrs.
Lourdes Lacson c/o Litton Mills was delivered to Mr. Avecilla.^[9]

The defense, before presenting the accused to testify in his own
behalf, called Mrs. Lourdes R. Lacson to the witness stand and asked her to
produce the letter of the cashier of Guardian State Bank, Milwaukee, Wisconsin,
dated October 27, 1972 addressed to Maria Paz R. Prado, stating that
“Cashiers Check No. 27166, payable to Miss Carmencita S. Rodriguez, has
not been paid as of this date. “^[10]

4.  Antonio Avecilla declared
that as messenger of Litton Mills, it was his duty to get all the incoming and
outgoing mails of both the Pasig and Mandaluyong branches of Litton Mills,
Inc. He knew the complainant, Mrs.
Lacson, because the latter was his co-employee at Litton Mills. He often mailed the letters of Mrs. Lacson
for her and would also get her mail from the post office.

On November 16, 1971, he admitted having gotten from the
Mandaluyong Post Office a registered letter addressed to Mrs. Lacson by signing
the name of Mrs. Lacson and his name on the registry receipt. Once in the office, he left said letter on
the table of Mrs. Lacson because at that time she was already out as it was
past 5:00 o’clock in the afternoon. He
also said that when he left the letter on the table, nobody was in the office.^[11]

On July 16, 1973, the trial court^[12]
rendered its decision finding accused-petitioner guilty beyond reasonable doubt
of simple theft. The dispositive part
of the decision reads:

“WHEREFORE, finding the evidence sufficient to prove the guilt
of the accused beyond reasonable doubt of the crime of Theft, pursuant to
Article 308 and 309 of the Revised Penal Code, and applying the Indeterminate
Sentence Law, he is hereby sentenced to an indeterminate penalty of SIX (6)
MONTHS of arresto mayor as minimum to ONE (1) YEAR, EIGHT (8)
MONTHS, TWENTY-ONE (21) DAYS of prision correccional as maximum.

SO ORDERED.”^[13]

Not satisfied with the decision, petitioner appealed to the Court
of Appeals, which on December 20, 1976, promulgated a decision finding
accused-petitioner guilty of qualified theft instead of simple theft. The dispositive portion of the decision
reads:

“WHEREFORE, the appealed decision is hereby modified in the
sense that the crime committed is hereby designated as qualified theft; and
that the appellant is hereby sentenced to suffer the indeterminate penalty of
from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of prision correccional
as minimum to NINE (9) YEARS, FOUR (4) MONTHS AND ONE (1) DAY of prision
mayor, as maximum. In all other
respects, the decision is affirmed with costs against accused-appellant.

IT IS SO ORDERED.”^[14]

The motion for reconsideration having been denied,^[15]
petitioner elevated the case to the Supreme Court by way of the instant
petition for review on certiorari.

Petitioner contends that his constitutional right to due process
had been violated both substantially and procedurally. He was convicted of qualified theft instead
of simple theft and imposed a penalty eight times longer than his original
sentence, and his motion for reconsideration of the appellate court’s decision
was “denied in one stereo-typed sentence.”^[16]
He adds that his constitutional right to be informed of the nature and cause of
the accusation against him provided for in Art. IV, Sec. 19 of the 1971
Constitution and reiterated in Rule 115, Sec. 1, par. (c) of the Rules of Court
had also been violated.

Petitioner further argues that the Court of Appeals erred in
convicting him of qualified theft just because the information used the term
“registered letter” when “not all registered letters is (sic)
mail matter.” Because the information alleges that the registered letter belonged
to Lourdes Rodriguez de Lacson and considering Art. 723 of the Civil Code which
provides that a letter becomes the personal property of the addressee after it
has been delivered, the crime charged is only simple theft.

Petitioner bewails the vagueness of the information which
resulted in his “bewilderment” as to what precisely he had allegedly
stolen for a registered letter per se cannot be worth
$500.00. He notes that the information
does not state that the registered letter contained a check. Moreover, he avers, the essential elements
of theft, whether simple or qualified, had not been substantiated by the facts
proven. Thus, petitioner adds, it had
not been shown that he knew about the contents of the letter; there was no unlawful
taking because the delivery of the letter was made in the manner prescribed by
postal regulations; the allegedly stolen property had not been produced at all,
and the prosecution relied solely on the “sheer self-serving
testimony” of the complaining witness.^[17]

Petitioner’s allegations necessitate a scrutiny of the
information imputing to him the commission of a crime. It need not be overly stressed that the
averments in the complaint or information characterize the crime to be
prosecuted and determine the court before which the case must be tried.^[18]
What controls is not the designation of the offense but the description thereof
as alleged in the information.^[19]

A thorough examination of the information reveals that it
contains all the essential elements of the crime of theft, to wit: (1) 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) that the taking be accomplished without the use of violence
or intimidation against persons or force upon things. ^[20]

While it is true that petitioner could not have been
“bewildered” as to the nature of the charge against him had the
information been more accurately crafted, it nonetheless contains all the
elements of the crime of theft. Thus,
it is alleged therein that petitioner, with the aid of and in conspiracy with
an unidentified woman, willfully took away Registered Letter No. 24341
belonging to Lourdes Rodriguez de Lacson to her damage and prejudice. Although intent to gain is not explicitly
alleged in the information, it may be presumed from the allegation that the
said mail matter was unlawfully taken.^[21]
Since there is no allegation that the taking was accomplished with violence or
intimidation against persons or force upon things, it is apparent that the
charge is for the crime of theft rather than robbery.

The allegation that the subject of the taking is a registered
letter categorizes the theft as a qualified rather than a simple one. This is clear from the provision of Art. 310
of the Revised Penal Code which states that qualified theft is committed if the
property stolen is mail matter. In this
regard, petitioner’s contention that not all registered letters are mail matter
is incorrect. Under Sec. 1945 of the
Revised Administrative Code of 1917, first class mail matter includes
letters. For the greater security of
valuable mail matter, Sec. 1962 of the same Code established a registry system
“under which the senders or owners of registered matter may be indemnified
for losses thereof in the mails, the indemnity to be paid out of postal
revenues x x x.”

From the foregoing, it is clear that petitioner had not been
deprived of his constitutional right to be informed of the nature and cause of
the accusation against him. Moreover,
he may be convicted of a crime and sentenced to the corresponding penalty as
long as the facts alleged in the information and proved at the trial constitute
the crime for which he is convicted although different from the crime
designated and charged in the information.^[22] The
allegations in the complaint against petitioner had been established beyond
reasonable doubt at the trial. In this
regard, it should be pointed out that absolute certainty of guilt is not
demanded by the law as basis for conviction of any criminal charge but moral
certainty is required as to every proposition of proof requisite to constitute
the offense.^[23]
Moral certainty convinces and satisfies the reason and conscience that a crime
has indeed been committed.^[24] This
quantum of proof has been satisfied in this case.

In his defense, petitioner relied solely on his own unsupported
testimony. His story that after taking
delivery of the registered letter addressed to complainant Mrs. Lacson, he left
it on her desk after office hours when no one else was in the office strains
credulity. In his attempt to prove that
he did not benefit from the bank draft of $400.00, he presented Mrs. Lacson
herself with a letter from the cashier of the Guardian State Bank in Milwaukee,
Wisconsin to the effect that the bank draft had not been paid. However, as in the crime of robbery, the
fact that the accused did not benefit from the articles taken does not affect
the nature of the crime because from the moment the offender gained possession
of the thing, the unlawful taking is complete.^[25]

Petitioner’s assertion that he took Mrs. Lacson’s registered
letter by following the postal regulations and hence, he may not be liable for
its “misdelivery,” falls flat in the face of the unrebutted proof
that he even used a woman to misrepresent herself as Mrs. Lacson. Although no one else witnessed the
deception, and Rosalinda Cervo could no longer describe the woman, the
undisputed fact remains that someone else other than Mrs. Lacson did sign the
control book and that, thereafter, petitioner took the letter with the bank
draft of $400.00 which Mrs. Lacson never received.

Although proof as to motive for the crime is essential when the
evidence of the theft is circumstantial,^[26] the
intent to gain or animus lucrandi is the usual motive to be
presumed from all furtive taking of useful property appertaining to another,
unless special circumstances reveal a different intent on the part of the
perpetrator.^[27]
As earlier noted, the intent to gain may be presumed from the proven unlawful
taking.

The Court of Appeals considered P6,000.00 as the
equivalent of $400.00. Under Art. 309
(2) of the Revised Penal Code, the penalty for theft involving said amount is prision
correccional in its minimum and medium periods, but considering that
qualified theft is punishable by a penalty two degrees higher,^[28]
petitioner should be imposed the penalty of prision mayor in its
medium and maximum periods. In the
absence of aggravating and mitigating circumstances, the penalty should be the
medium period of said penalty or nine (9) years, four (4) months and one (1)
day of prision mayor medium to ten (10) years, eight (8) months
and one (1) day of prision mayor maximum. Hence, the Court of Appeals correctly
applied the Indeterminate Sentence Law and imposed the indeterminate sentence
of four (4) years, two (2) months and one (1) day of prision correccional
maximum as minimum penalty to nine (9) years, four (4) months and one (1) day
of prision mayor medium as maximum penalty.

WHEREFORE, the modification of the decision of the trial
court by the Court of Appeals finding the accused-appellant guilty, not only of
simple but qualified theft, being in order, the above imposition of the penalty
prescribed by the Indeterminate Sentence Law is CORRECT. Costs against the appellant.

SO ORDERED.

Gutierrez, Jr., (Chairman), Feliciano, Bidin, and
Davide, Jr., JJ.,concur.

^[1]
Annex “C” of the Petition; Rollo, p. 28.

^[2]
Original Record, p. 29.

^[3]
Exhibit “A.”

^[4]
Exhibits “C” and “C-1.”

^[5]
TSN, June 14, 1972, pp. 18-19.

^[6]
TSN, September 19, 1972, pp. 9-15.

^[7]
TSN, September 19, 1972, p. 35.

^[8]
Exhibit “G.”

^[9]
TSN, October 16, 1972, pp. 22-25.

^[10]
Exhibit “1.”

^[11]
TSN, April 10, 1973, pp. 113-123.

^[12]
Presided by Judge Emilio V. Salas.

^[13]
Rollo, p. 35.

^[14]
Rollo, p. 26.

^[15]
Rollo, p. 27.

^[16]
Petition, pp. 2-3; Rollo, pp. 3-4.

^[17]
Petition, pp. 2-6.

^[18]
Buaya v. Polo, G.R. No. 75079, January 26, 1989, 169 SCRA 471.

^[19]
Santos v. People, G.R. No. 77429, January 29, 1990, 181 SCRA 487.

^[20]
Santos v. People, supra, p. 492; People v. Rodrigo,
G.R. No. L-18507, March 31, 1966, 16 SCRA 475.

^[21]
People v. Gulinao, G.R. Nos. 82264-66, December 4, 1989, 179 SCRA 774.

^[22]
People v. Demecillo, G.R. No. 83186, June 4, 1990, 186 SCRA 161, citing
Santos v. People, supra.

^[23]
People v. Felipe, L-40432, July 19, 1982, 115 SCRA 88, citing U.S. v.
Lasada, 18 Phil. 90 (1910) and People v. Dramayo, L-21325, October 29,
1971, 42 SCRA 59.

^[24]
People v. Martinez, L-39402, September 24, 1986, 144 SCRA 303.

^[25]
People v. Salvilla, G.R. No. 86163, April 26, 1990, 184 SCRA 671.

^[26]
See: People v. Oquino, L-37483,
June 24, 1983, 122 SCRA 797.

^[27]
People v. Mercado, 65 Phil. 665, 673 (1938), citing the decision of
October 14, 1898 of the Supreme Court of Spain.

^[28]
Article 310, Revised Penal Code.