JORGE TAER, PETITIONER, VS. THE HON. COURT OF APPEALS, AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

This is a petition for review on certiorari of the decision rendered by the Court of
Appeals in “People v. Jorge Taer,” CA-G.R.
CR No. 01213,^[1]
dated May 26, 1988, which affirmed in toto the
conviction of Jorge Taer for the crime of cattle
rustling by the Regional Trial Court of Bohol in
Criminal Case No. 3104,^[2]
and the resolution of the same court denying the petitioner’s Motion for
Reconsideration.

After the required preliminary investigation in the 11th
Municipal Circuit Court at Valencia-Dimiao, in the province
of Bohol,
the following information was filed in the then Court of First Instance of Bohol, 14th Judicial District, Branch IV, at Tagbilaran City:

The undersigned, Third Assistant Provincial Fiscal, hereby accuses
Emilio Namocatcat alias Milio, Mario Cago, Jorge Taer and Cerilo Saludes for the crime of
Theft of Large Cattle, committed as follows:

That on or about the 5th day of December, 1981, in barangay Lantang, municipality of
Valencia, province of Bohol, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping with each other, with the intent of
gain and without the consent of the owner thereof, did then and there
willfully, unlawfully and feloniously take, steal and lead away two (2)
male carabaos with the total value of FOUR THOUSAND
PESOS (P4,000.00), Philippine Currency, belonging to and owned by Tirso Dalde and Eladio Palaca; to the damage and
prejudice of the said offended parties in
the aforestated amount.

Acts committed contrary to the provisions of Articles 308, 309 and
310 the Revised Penal Code, with the aggravating circumstances of nighttime being purposely sought for or taken advantage by the accused to
facilitate the commission of the crime.

City of Tagbilaran, June 1, 1982.^[3]

After proper proceedings and trial, Saludes
and Cago were acquitted but Taer
and Namocatcat were convicted.  The dispositive
portion of the decision of the trial court, dated July 6, 1984, reads as follows:

WHEREFORE, the Court finds accused Emilio Namocatcat
and Jorge Taer GUILTY beyond doubt of the theft of
large cattle and appreciating against them the aggravating circumstance of nocturnity and pursuant to Presidential Decree No. 533 each
is hereby sentenced to undergo the indeterminate penalty of imprisonment of
from SIX (6) YEARS and ONE DAY TO FOURTEEN (14) YEARS, TEN (10) MONTHS and
TWENTY ONE (21) DAYS, together with the accessory penalties, and to pay the
costs; they are entitled to credit for their preventive imprisonment.  Accused Mario Cago
and Cirilo Saludes are
ACQUITTED for insufficiency of
evidence.^[4]

Only Jorge Taer appealed to the Court
of Appeals.  The Court of Appeals,
finding the evidence of the prosecution that conspiracy indeed existed between
Emilio Namocatcat and Jorge Taer,
affirmed in toto the decision appealed from.  But the affirmance
did not affect Emilio Namocatcat because, as adverted to earlier, he did not
appeal his conviction by the Regional Trial Court.

Hence this petition for review was filed by Taer
alone.

In sum, Taer interposed these twin
arguments:

1.  That the extent of his
participation did not go beyond the participation of the original defendants Cirilo Saludes and Mario Cago.  Therefore, he
submits that the acquittal of these two by the trial court should also lead to
his acquittal;^[5]

2.  That the only evidence
proving the alleged conspiracy between him and Emilio Namocatcat
was the confession of his co-accused Emilio Namocatcat.  However this should not be considered as
admissible because the same is hearsay under the rule of res inter alios acta.^[6]

The undisputed facts as found
by the trial court show that:

In the evening of December
5, 1981, accused Cirilo Saludes slept in the house of his compadre
accused Jorge Taer at Datag,
Garcia-Hernandez, Bohol,
whereat he was benighted.  At about 2:00 o’clock dawn, December 6, 1981, accused Emilio Namocatcat
and Mario Cago arrived at Taer’s
house with two (2) male carabaos owned by
and which Namocatcat
wanted Taer to tend. 
The said carabaos were left at Taer’s place.

Tirso Dalde and
Eladio Palaca of Lantang, Valencia
Bohol discovered in the morning
of December 6, 1981 that
their respective male carabaos, 3 to 4 years old,
were missing at the different grazing grounds whereat they tied the same the
afternoon preceding.

After searching in vain for the carabaos
at the vicinity, Dalde and Palaca
reported the matter to the police.  On December 15, 1981, one Felipe Reyes
of Hinopolan, Valencia,
Bohol, informed Dalde that he saw the latter’s
lost carabao at Datag,
Garcia-Hernandez.  Forthwith Dalde and Palaca went on that day
to Datag and there they found their missing carabaos tied to a bamboo thicket near
the house of accused Taer who was then not in the
house as he was in Napo,
Garcia-Hernandez, attending the fiesta where he cooked for the accused Saludes.  Upon query by Dalde and Palaca why their carabaos were found at his place, accused Taer, according to Dalde and Palaca replied that the carabaos
reached his place tied together without any person in company.  According to accused Taer,
what he told Dalde and Palaca
was that the carabaos were brought to his place by the accused Namocatcat who asked
him to tell anybody looking for them that they just strayed thereat.

The 2 carabaos were taken by Dalde and Palaca from accused Taer’s possession
on that day, December 15.^[7]

xxx                                 xxx
                              xxx

The Court of Appeals would consider these as proof of the
existence of conspiracy:

Altho (sic) accused Taer
admitted that before December 6, 1981, he had not met accused Namocatcat since 1975 and had not previously tended any carabao belonging
to Namocatcat, it is unbelievable that Taer was not suspicious of the origin of the 2 male carabaos which to say the least were delivered to him to be
tended under strange circumstances, to wit, at the unholy hour of 2:00 o’clock
dawn after a travel of 14 kilometers in the dead of the
night.  He unreservedly accepted the
charge of tending them with the agreement as to the sharing of the produce out
of said carabaos (sic) use.  If, as he asserted, Namocatcat
left the carabaos with him with the word that if
anybody would look for them he was to tell that the carabaos
just strayed into his other carabaos (sic), the more Taer ought to be more suspicious as to the origin of said carabaos, yet, since that dawn delivery on December 6,
1981, until they were retrieved from his possession, he never apprised the barangay captain, living just 2 kilometers away
from his house, about the matter.  He
continued to hold on to the stolen carabaos until
they were recovered 10 days later.

Ordinarily, one would not hold on to a thing he suspects to be
stolen to obviate any criminal responsibility or implication.  But accused Taer
did the opposite–a clear indication that he and accused Namocatcat
did have some kind of an unlawful agreement regarding the stolen carabaos.  He did not
even reveal immediately to the authorities that the carabaos
delivered to him by Namocatcat were stolen and he
tried his best to keep under cover Namocatcat’s
identity.

The Court, therefore, finds that conspiracy between accused Namocatcat and Taer in the theft
of the carabaos has been established beyond doubt.^[8]

xxx                                 xxx
                              xxx

We
disagree with the findings of the respondent court; they are mere
suspicions and speculations.  The circumstances adverted to above do not
establish conspiracy beyond reasonable doubt.

There is conspiracy when two or more persons come to an agreement
regarding the commission of an offense and decide to commit it.  Although the facts may show a unity of
purpose and unity in the
execution of the unlawful objective, essential however is an agreement to
commit the crime and a decision to commit it.^[9]

Only recently we emphasized the rule that:

Conspiracy must be established not by conjectures, but by positive
and conclusive evidence.  The same degree
of proof necessary to establish the crime is required to support a finding of
the presence of criminal conspiracy,
which is, proof beyond reasonable doubt.^[10]

Thus mere knowledge, acquiescence to, or approval of the act, without cooperation or agreement to
cooperate, is not enough to constitute one a party to a conspiracy absent the
intentional participation in the
transaction with a view to the furtherance of the common design and purpose.

At most the facts establish Taer’s
knowledge of the crime.  And yet without having participated either as
principal or as an accomplice,
for he did not participate in the taking of the carabaos,
he took part subsequent to the commission of the act of taking by profiting
himself by its effects.  Taer is thus only an accessory after the fact.

Article 19 of the Revised Penal Code states:

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:

1.  By profiting themselves
or assisting the offender to profit by the effects of the crime;

xxx                                 xxx                               xxx

A person who received any property from another, and used it, knowing that the same
property had been stolen is guilty as an accessory because he is profiting by
the effects of the crime.^[11]
By employing the two carabaos in his farm, Taer was profiting by
the objects of the theft.^[12]

On the conspiracy charge, the most cogent proof that the
prosecution could ever raise was the implication made by the accused Namocatcat (he did not appeal his conviction to the Court
of Appeals) in his affidavit of confession.^[13]

However, the settled rule is that the rights of a party can not
be prejudiced by an act, declaration, or omission of another.^[14]
The testimony, being res inter alios acta, can not affect another except as provided in the
Rules of Court.  This rule on res inter alios acta specifically applies when the evidence consists of an
admission in an extrajudicial
confession or declaration of another because the
defendant has no opportunity to cross-examine the co-conspirator testifying
against him.^[15]

Since this is the only evidence of the prosecution to prove the conspiracy with Namocatcat, this uncorroborated testimony can not be
sufficient to convict Taer.

The offense for which Taer is accused
is covered by Articles 308, 309, and 310, as amended by “The Anti-Cattle
Rustling Law of 1974.”^[16]
The penalty imposed on the principal for the crime of cattle rustling is:

Sec. 8.  Penal provisions –
Any person convicted of cattle rustling as herein defined shall, irrespective
of the value of the large cattle involved, be punished by prison mayor in its
maximum period to reclusion temporal in its medium period if the offense is
committed without violence against or intimidation of persons or force upon
things.  If the offense is committed with
violence against or intimidation of persons or force upon things, the penalty
of reclusion temporal in its maximum
period to reclusion perpetua shall be imposed.  If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the
penalty of reclusion perpetua to death shall be
imposed.^[17]

xxx                                 xxx                               xxx

Inasmuch as Taer’s culpability is only
that of an accessory after the fact, under Art. 53 of the Revised Penal Code,
the penalty lower by two degrees than that prescribed by law for the consummated felony shall be
imposed.

The penalty two degrees lower than that imposed under the first
sentence of Section 8 of PD No. 533 is arresto mayor maximum or 4
months and one day to 6 months to prision correccional medium or 2
years 4 months and 1 day to 4 years and 2 months.

In addition, the Revised Penal Code provides that when the
penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, the courts shall
observe the rule that when there are neither aggravating nor mitigating
circumstances, they shall impose the penalty prescribed by law in its medium
period.^[18]
Hence the imposable penalty would be prision correccional minimum or 6 months and 1 day to 2 years and
4 months imprisonment.

Since the maximum term of imprisonment exceeds one year, we apply the
Indeterminate Sentence Law.^[19]

This law provides that the maximum term of imprisonment shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
said code which is prision correccional
minimum or 6 months and 1 day to 2 years and 4 months.  And the minimum shall be within the range of
the penalty next lower to that prescribed by the Code
for the offense.  The penalty next lower
would be in the range of destierro maximum or 4 years
2 months and 1 day to 6 years to arresto mayor medium or 2 months and 1 day to
4 months.

WHEREFORE, the decision rendered by the Regional Trial
Court of Tagbilaran and affirmed by the respondent
Court of Appeals is hereby MODIFIED in that the herein JORGE TAER is convicted as an accessory of the crime of
cattle-rustling as defined and penalized by PD No. 533 amending Arts. 308, 309,
and 310 of the Revised Penal Code and he will serve the minimum penalty within
the range of arresto mayor medium, which we shall fix at 4 months imprisonment and
the maximum penalty of prision correccional
minimum which we shall fix at 2 years.

With costs.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Regalado, JJ., concur.

^[1]
Imperial, Jorge S., J., ponente; Melo,
Jose A. R. and Herrera, Manuel C., JJ, concurring; Third Division.

^[2] Hon. Fernando S. Ruiz, presiding
judge.

^[3]
“The People of the
Philippines, Plaintiff, vs. Emilio Namocatcat
alias Milio, Mario Cago,
Jorge Taer, and Cirilo Saludes, Accused,” Crim.
Case No. 3104, For:  Theft of
Large Cattle, Original Record, 80.

^[4]
Original Record, 236.

^[5]
Rollo, 3.

^[6]
Id., 3, 4.

^[7]
Original Record, supra, note 1 at 9.

^[8]
People v. Namocatcat, et al., RTC (Tagbilaran, Br.
IV), Crim. Case No. 3104, July 6, 1984 quoted in People v. Taer, CA-G.R.
N. 01213, May 26, 1988.

^[9]
Antonio v. Sandiganbayan, G.R. 57937, October 21, 1989.

^[10]
Orodio v. Court of Appeals, G.R. 57519, September 13, 1989.

^[11]
People v. Tanchoco, 76 Phil. 467.

^[12]
T.S.N., December 8, 1983,
11.

^[13]
T.S.N., April 28, 1983, 6.

^[14]
RULES OF COURT, Section 25, Rule
130.  Accord, Belvis
III v. Court of Appeals, Nos. L-38907-09, November 14, 1988, 167 SCRA 333.

^[15]
People v. Bazar, No. L-41829, June 27, 1988, 162 SCRA 618.

^[16]
Pres. Decree No. 533 (1974); People v. Macatanda,
No. 51368, November 6, 1981,
109 SCRA 40.

^[17]
Pres. Decree No. 533 provides:

“c.  Cattle rustling is the taking away by any
means, methods or scheme, without the consent of the owner/raiser, of any of
the abovementioned animals whether or not for profit or gain, or whether
committed with or without violence against or intimidation of any person or
force upon things x x x.”

^[18]
REV. PEN. CODE, Art. 64.

^[19]
Act No. 4103 (1933) as amended by Act No. 4225 (1935), Section 1.