MACARIO EMBUSCADO Y DAYUNOT, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, JUDGE GERONIMO R. MARAVE, JUDGE OF THE COURT OF FIRST INSTANCE OF OZAMIZ CITY, BRANCH II, RESPONDENTS.

This is a petition
for review on certiorari of the decision of the Court of First Instance
of Misamis Occidental, Branch II, Ozamiz City,
finding the petitioner, who had been charged with and convicted of the crime of
estafa by the
City Court
of Ozamiz
City, guilty of the crime of theft.

The petitioner is a
tenant of one Prima Macasongsong Vda.
de Acapulco, on the latter’s agricultural land since
1958.  As such tenant, he receives a
share of 1/3 of the products harvested on the land, consisting of coconuts and
mangoes.  On May 22, 1973, the said agricultural land yielded 320
mangoes, all of which, on said date were harvested by
petitioner without the knowledge and consent of his landlord, and sold them on May 27,
1973, to Lucio Cabahug, Jr., for
P30.20.  Before the accused could collect
the selling price of the mangoes, he was apprehended by the police force of Ozamiz City (Rollo, pp.
37-38).

In an
information filed with the City Court of Ozamiz City, Branch III, the petitioner was charged with
the crime of estafa. 
The City Court found him guilty and imposed upon him the penalty of 2
months and 1 day of arresto mayor
and to pay the costs.* (Rollo, p. 13).

The petitioner appealed
to the then Court of First Instance of Misamis
Occidental, Branch II, Ozamiz City, which found him guilty of the crime of
theft and sentenced him to suffer the penalty of 4 months and 1 day of arresto mayor, and
to pay the costs.** (Rollo, p. 17).

His motion for
reconsideration having been denied, the petitioner filed the instant petition.

The issue in this case is
whether or not an accused charged with estafa can be
convicted of the crime of theft.

The petitioner argues
that he was convicted of theft a crime with which he had not been charged
hence, he was denied his constitutional right to be informed of the nature and
cause of the accusation, and to due process.

The Solicitor General, in
his memorandum for the respondents, recommended the reversal of the decision of
the respondent Judge of the Court of First Instance of Misamis Occidental convicting petitioner of the crime of
theft and affirmance instead of the judgment of the
City Court of Ozamiz City, finding said petitioner
guilty of the crime of estafa as defined and
penalized by Article 315, subdivision 4, paragraph 1(b) of the Revised Penal Code.

The Solicitor General in
effect agreed with the petitioner that since the crime charged against the
latter in the information filed with the City Court of Ozamiz City
is estafa, he cannot on appeal to the respondent
Court of First Instance, be legally convicted by the latter court of the crime
of theft, since the crime of theft is not included in the crime of estafa
charged in the information.  In
convicting petitioner of a crime not charged in the information against him,
the trial court had actually denied him his constitutional and legal right to
due process of law.

The penalty prescribed by
Article 315, subdivision 4, paragraph 1(b) of the Revised Penal Code for the
crime of estafa is arresto mayor in its medium and maximum periods (from 2 months and 1 day to 6
months).  In view of the absence of any
aggravating or mitigating
circumstances in this case, the
penalty should be at least 3 months and 11 days.

PREMISES CONSIDERED,
the decision of the respondent court is SET ASIDE, and the judgment of the city
court is REINSTATED with the modification that the penalty imposed is increased
to 3 months and 11 days.

SO ORDERED.

Sarmiento and Regalado, JJ.,
concur.

Melencio-Herrera, J., (Chairman), on leave.

Padilla, J., See dissent.

* Judge Ceferino T. Ong
wrote the decision.

** Judge Geronimo R. Marave rendered the decision.

Normal
Clean
Clean

6 pt
6 pt
0
3

MicrosoftInternetExplorer4

st1:*{behavior:url(#ieooui) }

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;}