WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG, and as

such had free access to the company premises, materials, supplies and items store[d]
THIRD DIVISION thereat, conspiring, confederating together and mutually helping one another, with
G.R. No. 159734 November 29, 2006 grave abuse of confidence and intent of gain, and without the consent of the owner
thereof, did, then and there wilfully, unlawfully and feloniously take, steal and carry
ROSARIO V. ASTUDILLO, Petitioner, away two (2) booklets of Sales Invoices Nos. from 128351 to 128400 of the said
corporation and thereafter use the said invoices in the preparation of fictitious sales
vs.
and withdrawals of merchandise with the total value of ₱797,984.00 Philippine
PEOPLE OF THE PHILIPPINES, Respondent. Currency, belonging to the said WESTERN MARKETING CORPORATION, to its
damage and prejudice.
x----------------------------------------x
CONTRARY TO LAW.4 (Emphasis supplied)
G.R. No. 159745 November 29, 2006
Additionally, petitioners, Benitez and Norberto "Carlo" Javier (Javier) were individually
FILIPINA M. ORELLANA, Petitioner, charged also with Qualified Theft in four (4) separate Informations all dated
vs. September 9, 1996.

PEOPLE OF THE PHILIPPINES, Respondent. The Information indicting petitioner Rosario, docketed as Criminal Case Nos. Q-96-
67829, and that indicting petitioner Filipina, docketed as Q-96-67830, respectively
DECISION read:
CARPIO MORALES, J.: The undersigned accuses ROSARIO ASTUDILLO a.k.a. "Baby" of the crime of
QUALIFIED THEFT as follows:
Petitioners Rosario "Baby" Astudillo (Rosario) and Filipina "Lina" Orellana (Filipina) via
separate petitions for review on certiorari seek a review of the Decision1 and the That on or about the period from May 1, 1994 to February 16, 1996, in Quezon City,
Resolution2 of the Philippines, the above-named accused, being then employed as sales
representative/clerk at the WESTERN MARKETING CORPORATION (P. Tuazon
Court of Appeals affirming with modification that of the Regional Trial Court of Quezon
Branch), represented by LILY CHAN ONG, and as such had free access to the
City, Branch 783 (the trial court) finding them guilty of Qualified Theft and denying
company cash sales, with grave abuse of confidence and intent of gain, and without
their Motions for Reconsideration, respectively.
the consent of the owner thereof, did, then and there, wilfully, unlawfully and
On complaint of Western Marketing Corporation (Western), petitioners were feloniously take, steal and carry away the excess sum/amount between the tag price
collectively charged with Qualified Theft, along with Flormarie Robel (Flormarie) and and discounts price in the sum of ₱12,665.00, belonging to the said WESTERN
Roberto Benitez (Benitez), in Criminal Case No. Q-96-67827, under an Information MARKETING CORPORATION, to its damage and prejudice in the amount
dated September 9, 1996 reading: aforementioned.

The undersigned accuses FLORMARIE CALAJATE ROBEL, ROBERTO F. BENITEZ, CONTRARY TO LAW.
ROSARIO ASTUDILLO a.k.a. "Baby" and FILIPINA ORELLANA Y MACARAEG of the
xxx
crime of QUALIFIED THEFT as follows:
The undersigned accuses FILIPINA ORELLANA Y MACARAEG of the crime of
That during the period comprised from January 1996 to February 1996, the above-
QUALIFIED THEFT, committed as follows:
named accused, being then employed as relieving cashier/service-in-charge
(Flormarie Calajate Robel), supervisor/floor manager (Roberto F. Benitez[)], sales
clerks (Rosario Astudillo a.k.a. "Baby" and Filipina Orellana y Macaraeg) at the
That on or about the period from May 1, 1994 to January 27, 1996, in Quezon City, Accused Roberto F. Benitez, shall suffer imprisonment of TWELVE (12) YEARS and
Philippines, the above-named accused, being then employed as Sales clerk at the ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion
WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG, and as temporal, and to pay the amount of P11,079.00 for his civil liability.
such had free access to the company cash sales, with grave abuse of confidence and
intent of gain, and without the consent of the owner thereof, did, The penalties imposed on all the accused are quite harsh, but as the maxim goes,
"Dura Lex Sed Lex", the Court could not impose otherwise.
then and there, wilfully, unlawfully and feloniously take, steal and carry away the
excess sum/amount between the tag price and discount price of each and every items SO ORDERED.8 (Emphasis in the original; underscoring supplied)
sold by her to company customers, in the sum of ₱4,755.00, belonging to the said Petitioners and Benitez elevated their cases on appeal. The Court of Appeals affirmed
WESTERN MARKETING CORPORATION, to its damage and prejudice in the amount the trial court’s judgment with modification as to the penalties imposed, thus:
aforementioned.
WHEREFORE, the decision dated May 28, 1998 of the Regional Trial Court of
CONTRARY TO LAW.5 Quezon City, Branch 78 is AFFIRMED with MODIFICATION.
Petitioners, Benitez and Javier, with the assistance of their respective counsel, 1. In Criminal Case No. Q-96-67827, appellants Roberto Benitez, Rosario Astudillo
pleaded not guilty during arraignment.6 Flormarie has remained at large. and Filipina Orellana are found guilty beyond reasonable doubt of qualified theft and
By Order of December 10, 1997, Criminal Case No. Q-96-67828, the case against are hereby sentenced to suffer the penalty ranging from 10 years and 1 day of prision
Javier, was dismissed on account of the desistance of the private complainant.7 The mayor in its maximum period to 15 years of reclusion temporal as maximum, and to
remaining cases against petitioners and Benitez were consolidated for joint trial. pay to the offended party the amount of ₱797,984.00, jointly and severally, as
reparation for the unrecovered stolen merchandise;
By Decision of May 28, 1998, the trial court found the accused-herein petitioners and
Benitez guilty beyond reasonable doubt of Qualified Theft and were accordingly 2. In Criminal Case No. Q-96-67829, appellant Rosario Astudillo is found guilty
sentenced as follows: beyond reasonable doubt of qualified theft and is sentenced to suffer imprisonment
ranging from 10 years and 1 day of prision mayor in its maximum period as minimum
IN CRIMINAL CASE NO. Q-96-67827 – to 14 years, 8 months and 1 day of reclusion temporal in its medium period as
maximum, and to pay to the offended party amount of ₱12,665.00 as reparation for
Accused Roberto F. Benitez, Rosario Astudillo a.k.a. "Baby", and Filipina Orellana y the stolen goods.
Macaraeg shall each suffer imprisonment of TWELVE (12) YEARS and ONE (1) DAY,
as minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion temporal, and to 3. In Criminal Case No. Q-96-67830, appellant Filipina Orellana is found guilty beyond
pay the amount of P797,984.00, jointly and severally for their civil liability; reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging
from 4 years, 2 months and 1 day of prision correccional in its maximum period as
IN CRIMINAL CASE NO. Q-96-67829 – minimum to 8 years and 1 day of prision mayor in its medium period as maximum and
Accused Rosario Astudillo a.k.a. "Baby", shall suffer imprisonment of TWELVE (12) to pay to the offended party the amount of ₱4,755.00 as reparation for the stolen
YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of property;
reclusion temporal, and to pay the amount of P12,665.00 for her civil liability; 4. In Criminal Case No. Q-96-67831, appellant Roberto Benitez is found guilty beyond
IN CRIMINAL CASE NO. Q-96-67830 – reasonable doubt of qualified theft and is sentenced to suffer imprisonment ranging
from 6 years and 1 day of prision mayor in its minimum period as minimum to 10 years
Accused Filipina Orellana y Macaraeg, shall suffer imprisonment of TWELVE (12) and 1 day of prision mayor in its maximum period as maximum and to pay to the
YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS, as maximum, of offended party the amount of ₱11,079.00 as reparation for the stolen goods.
reclusion temporal, and to pay the sum of P4,755.00 for her civil liability; and
SO ORDERED.9 (Emphasis in the original; underscoring supplied)
IN CRIMINAL CASE NO. Q-96-67831 –
After petitioners and Benitez’s respective Motions for Reconsideration were denied by Cash Sales Invoice No. 128366. Upon verification from Western’s head office, Camilo
the Court of Appeals, petitioners filed these separate petitions for review which were, learned that the branch received the booklet containing 50 cash sales invoices to
on motion of the Office of the Solicitor General, ordered consolidated.10 which Invoice No. 128366 formed part.
In her petition, Rosario proffers the following assignment of errors: Camilo then confirmed that the booklet of sales invoices bearing numbers 128351 up
to 128400 was missing. And he noted that the daily cash collection report did not
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONSIDERED AN APOLOGY reflect any remittance of payments from the transactions covered by the said invoices.
FOR BREACH OF PROCEDURE AS AN ADMISSION OF A CRIME.
Some cash sales invoices were later recovered. From recovered Invoice No. 128366,
THE COURT A QUO ERRED WHEN IT DEPARTED [FROM] THE NORMAL Camilo found out that Flormarie was the one who filled it up and received the payment
COURSE OF JUDICIAL PROCEEDING AND CONVICTED PETITIONER OF THE reflected therein.
OFFENSE OF THEFT WITHOUT THE ESSENTIAL ELEMENT OF UNLAWFUL
TAKING. From recovered Invoice Nos. 128358 and 128375, Camilo found out that the goods
covered thereby were missing. Concluding that the transactions under the said
THE COURT OF A QUO (sic) GRIEVOUSLY ERRED WHEN IT ABUSED ITS invoices were made but no payment was remitted to Western, Camilo reported the
DISCRETION TO ARRIVE AT CONCLUSIONS OF FACTS BY INDECENTLY matter to Ma. Aurora Borja (Aurora), the branch assistant manager.
CONSIDERING AND DISTORTING EVIDENCE TO CONFORM TO ITS FLAWED
CONCLUSION.11 (Underscoring supplied) Benitez soon approached Camilo and requested him not to report the matter to the
management, he cautioning that many would be involved.
On her part, Filipina raises the following issues:
Aurora and Camilo later met with Benitez, Filipina, cashiers Rita Lorenzo (Rita) and
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING Norma Ricafort (Norma) during which Benitez and Filipina pleaded with Camilo not to
THE DECISION OF THE REGIONAL TRIAL COURT CONVICTING THE report the matter to the management. Flormarie, who called on Camilo by telephone,
PETITIONER FILIPINA ORELLANA Y MACARAEG OF THE CRIME CHARGED made a similar plea as she admitted to stealing the missing booklet of invoices, she
DESPITE INSUFFICIENCY OF EVIDENCE explaining that her father was sick and had to undergo medical operation, and offering
WHETHER OR NOT AN EXTRA-JUDICIAL ADMISSION OBTAINED THROUGH to pay for the goods covered thereby.14
TRICKERY AND SCHEME WITHOUT THE BENEFIT AND ASSISTANCE OF In the meantime, Flormarie had gone absent without leave.
COUNSEL IS A SUFFICIENT GROUND TO CONVICT AN ACCUSED
Aurora eventually reported the case of the missing invoices and the shortage of cash
WHETHER OR NOT CONSPIRACY MAY BE PROVED SIMPLY ON THE GROUND sales collection to Western’s branch manager Lily Chan Ong (Lily).15
THAT ALL ACCUSED ARE CO-EMPLOYEES AND WORKING IN ONE COMPANY12
(Underscoring supplied) In a subsequent meeting with Lily, Filipina admitted having brought home some
appliances while Benitez gave a handwritten statement reading:16
From the evidence for the prosecution, the following version is gathered:
Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay Mrs. Lily Ong at Western
Petitioners were hired by Western, a chain of appliance stores, as salespersons at its Marketing Corp. Ang mga kasalanan ako po ay:
branch at P. Tuazon Boulevard in Cubao, Quezon City. Benitez and Flormarie were
hired as floor manager and service-in-charge/cashier-reliever, respectively, at the 1) Ang pagkuha ng Promo na dapat ay para sa Customer.
same branch of Western.13
2) Ang paggamit ng gift check na para rin sa Customer ang kinukuha ko at ako ang
On February 21, 1996, in the course of preparing the January monthly sales report of gumagamit.
the P. Tuason branch of Western, Branch Accountant Marlon Camilo (Camilo) noticed
that the computer printout of the monthly sales report revealed a belated entry for
3) Ang pagamit na rin sa Pera na tinatawag na Short-Over ay amin ding ginagawa. ‘Yun pong tungkol sa kaso ni Marie, wala ho akong alam don. Kumare ko nga ho sya
Example nagbayad ang Customer ng 9000 and C.P. 8,900 and 9,000 ay nasulat sa pero yung pagnanakaw niyang ginawa wala akong kinalaman don. Kahit ho siguro
original na INV. magkautang-utang ako hindi ko magagawa ‘yon.
4) Ang pagkuha na rin ng mga Product tulad ng sumusunod, na ako nagplano at si Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa kong kasalanan at
Ate Lina. pinapangako ko ho na hinding-hindi ko na uulitin.

Kay Ate Lolit Tiffin Carrier Maraming salamat ho,

Cookware Set 7 pcs. (Sgd.)Baby Astudillo
Ate Lina Cookware Set 7 pcs. P.S. ‘yun ho palang perang na-oover naming, pinaghahatian po namin nila Rita at ni
Marie.20 (Underscoring supplied)
Norma Cookware Set 7 pcs. Airpot Lemon
Still in a separate meeting with Lily and her siblings on one hand, and Flormarie and
Robert National Elec. Stove HNK-211 Rice Bowl her husband on the other, Flormarie wrote what she knew of the incident as follows:
Ito lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po ay nangangako na hindi Ito ang nalalaman ko kung paanong nangyari ito sa loob ng tindahan ng Western
na ito uulitin ang lahat ng mga kasalanan sa Western ay kay Mrs. Lily Ong at Mktg. P. Tuazon Branch.
Pinapangako ko po na Sumpa man kasama ang pamilya at salamat din po dahil ako
ay pinatawad nila at binigyan pa ng isang pagkakataon. Maraming maraming salamat *SHORT-OVER
po.17 (Emphasis and underscoring supplied)
Ang tag price, kung ang customer ay hindi tumawad, binabago na lang ang presyo sa
In a still subsequent meeting with Lily, Filipina made a written statement in the duplicate copy and then kinukuha na lang sa cashier ang pera tapos naghahati-hati na
former’s presence reading: lang si robert, baby, lina, lolit, Rita at Marie, Norma, Fe.
Ako po si Lina M. Orellana na nangangako kay Ate Lily na hinding-hindi ko na uulitin xxx
iyong naglalabas ng mga items tulad ng cookware set at casserole na ang mga
kasama ko po rito ay sina Lolit, Norma, Robert na isinagawa namin. Na kami po si *INVOICE
Robert ang nagsabi kay Lolit na maglabas ng stock pero bago po namin ginagawa Ito ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at pagkatapos binigyan
iyon nagsabi po kami kay Lolit na sumagot naman ng ng oo pero kami po ni Robert niya ako ng (3 resibo series) at hindi ko na po alam kung anong ginawa na niya sa
and nagkumbinsi sa dalawa. Kung mauulit pa ho ito kung anuman po ang gusto ni invoice.
Ma’m Lily na gawin sa akin ay lubos ko pong tatanggapin.18 (Underscoring supplied)
Ang paraan magreresibo ako tatatakan ko ng paid kasama kung sino ang taong
Also in a meeting with Lily, Rosario, who was earlier implicated by Flormarie’s maglalabas ng unit tapos ibebenta ko na yong unit yung pera kinukuha ko na bibigyan
husband in his telephone conversation with Aurora,19 wrote: ko lang siya ng kahit magkanong amount kung sino yong taong inutusan ko.21
Mam Lily, (Underscoring supplied)

Sana ho Ate Lily patawarin ninyo ako sa nagawa kong kasalanan, regarding sa Flormarie, in the company of her sister Delma and Lily, subsequently appeared before
"Short-over". Siguro ho nagawa ko lang ho ‘yon sa pakikisama sa kanila, sa mga a notary public to execute a similar statement reading:
kasamahan ko dito sa Nuestra, alam ko ho na mali ‘yon kaya pinagsisisihan ko ho xxxx
‘yon. Sana ho mapatawad ninyo ako sa nagawa kong kasalan.
2. Ako ngayon ay kusang loob na lumapit sa Western upang humingi ng kapatawaran
sa aking mga nagawa at upang makipagkasundo sa isang maayos na pagbabayad sa
mga halagang aking nakuha sa Western at mahalaga sa lahat, upang isiwalat ang xxxx
mga taong kasangkot sa katiwaliang ito at mga paraan ng paggawa nito.
T : Sa maikling salaysay, ikuwento mo nga sa akin kung papaano mo isinagawa ang
3. Halos lahat ng mga kawani ng tindahan ay kasangkot sa mga sumusunod na iyong pagnanakaw sa pag-gamit ng mga Cash Sales Invoice?
katiwalian:
S : Ganito po ang ginawa ko, iniuwi ko sa aming bahay yung tatlong series ng resibo
3.1. Short-Over – Ito ay ang pagtatala ng mas mababang halaga ng paninda sa mga na ibinigay sa akin ni ROBERT BENITEZ at tinuruan po niya ako na sulatan ko yung
"duplicate copies" ng resibo kapag ang kustomer ay hindi tumawad sa "tag price" at mga resibo ng mga items na gusto kong ilabas, at pagkatapos po ay ibinalik ko ito sa
nagbayad ng "cash". Ang sobrang halaga ay pinaghahatian namin nina ROBERT Western Marketing Corp at binigay ko ito kay ROBERT BENITEZ, at ang sabi niya sa
BENITEZ ("Robert"); ROSARIO ALTUDILLO ("Baby"); FILIPINA ORELLANA ("Lina"); akin ay siya na raw ang bahala na magpalabas noong mga items na aking isinulat sa
LOLIT BORJA ("Lolit"); RITA LORENZO ("Rita"); NORMA RICAFORT ("Norma") at FE resibo.
CABIGAN ("Fe").
xxxx
xxxx
T : Bukod kay ROBERT BENITEZ may mga tao bang karamay sa naganap na
3.3. INVOICING – Sa pamamagitan ng mga resibong na may tatak na "paid" na transaksiyon?
ibinibigay ni Robert sa aking nailalabas ko ang mga paninda na akin namang
naibebenta.22 S : Mayroon po.

x x x x (Emphasis and underscoring supplied) T : Sino-sino ito?

Flormarie and her sister, together with Lily, later executed a statement before Cubao S : Sina LINA ORELLANA po, Sales Lady po, ROSARIO ASTUDILLO, sales lady.
SPO1 Jose Gil Gregorio, reading: T : Sa iyong pagkakaalam, ano ang kanilang mga partisipasyon na naganap na
TANONG: Ayon kay MARLON CAMILO, Western Marketing Corp Branch Accountant transaksiyon?
nadiskubre niya ang pagkawala ng isang booklet ng Sales Cash Invoice (50pcs.) na S : Si LINA ORELLANA po ang sales lady, at siya rin ang may pirma doon sa resibo,
may numerong 128351 to 128400 nitong mga nakaraang araw may kinalaman ka ba at ganoon din po itong si ROSARIO ASTUDILLO.
sa nasabing pangyayari?
xxxx
SAGOT: Opo.
T : Magkano naman ang ibinibigay sa iyo ni ROBERT BENITEZ kapag nailabas ng
T : Kung mayroon kang kinalaman sa nasabing pangyayari ito ba ay kusang loob yung mga items doon sa resibo na iyong ginawa?
mong ginawa?
S : Hindi ko na po matandaan basta pinapartihan niya ako at yung dalawang sales
S : Itinuro lang po ito sa akin. lady.23 (Emphasis and underscoring supplied)
T : Ano ang iyong ginawa? In an inventory of stocks conducted at the branch office of Western, several other
S : Ako po ang kumuha noong nawawalang isang booklet ng Cash Sales Invoice sa appliances were found missing as were unauthorized deductions from the cash
turo ni ROBERT BENITEZ na Sales Supervisor sa Western Marketing Corp. collections.24 The total missing merchandise was valued at ₱797,984.00 as reflected
in the inventory report.25 And discrepancies between the actual sales per cash sales
xxxx invoice and the cash remittance to the company in the sum of ₱34,376.00 for the
period from January 1994 to February 199626 were also discovered, prompting
T : Sa tatlong series ng Cash Sales Invoice na napunta sa iyo ano ang iyong ginawa? Western to initiate the criminal complaints for Qualified Theft.
S : Ginamit ko po ito sa paglalabas ng mga items/unit sa Western Marketing Corp.
Both petitioners raise as issue whether the employees’ extra-judicial admissions taken not been accorded, prior to his making and presenting them, his "Miranda rights" (to
before an employer in the course of an administrative inquiry are admissible in a silence and to counsel and to be informed thereof, etc) which, to repeat, are relevant
criminal case filed against them. in custodial investigations.31
Petitioners posit in the negative. They argue that as their extra-judicial statements People v. Tin Lan Uy, Jr. 32 is similarly instructive:
were taken without the assistance of counsel, they are inadmissible in evidence,
following Section 12, Article III of the 1987 Constitution.27 Clearly, therefore, the rights enumerated by the constitutional provision invoked by
accused-appellant are not available before government investigators enter the picture.
It bears noting, however, that when the prosecution formally offered its evidence, Thus we held in one case (People v. Ayson, [supra]) that admissions made during the
petitioners failed to file any objection thereto including their extra-judicial course of an administrative investigation by Philippine Airlines do not come within the
admissions.28 At any rate, this Court answers the issue in the affirmative. People v. purview of Section 12. The protective mantle of the constitutional provision also does
Ayson29 is instructive: not extend to admissions or confessions made to a private individual, or to a verbal
admission made to a radio announcer who was not part of the investigation, or even to
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a mayor approached as a personal confidante and not in his official capacity.
a person in police custody, "in-custody interrogation" being regarded as the (Emphasis and underscoring supplied)
commencement of an adversary proceeding against the suspect.
The Court of Appeals did not thus err in pronouncing that petitioners were not under
He must be warned prior to any questioning that he has the right to remain silent, that custodial investigation to call for the presence of counsel of their own choice, hence,
anything he says can be used against him in a court of law, that he has the right to the their written incriminatory statements are admissible in evidence.
presence of an attorney, and that if he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires. Opportunity to exercise those rights The extra-judicial confession33 before the police of Flormarie (who, as earlier stated,
must be afforded to him throughout the interrogation. After such warnings have been has remained at large) in which she incriminated petitioners bears a different
given, such opportunity afforded him, the individual may knowingly and intelligently complexion, however, as it was made under custodial investigation. When she gave
waive these rights and agree to answer or make a statement. But unless and until the statement, the investigation was no longer a general inquiry into an unsolved
such warnings and waivers are demonstrated by the prosecution at the trial, no crime but had begun to focus on a particular suspect. The records show that Camilo
evidence obtained as a result of interrogation can be used against him. had priorly reported the thievery to the same police authorities and identified Flormarie
and Benitez as initial suspects.
The objective is to prohibit "incommunicado interrogation of individuals in a police-
dominated atmosphere, resulting in self-incriminating statement without full warnings It is always incumbent upon the prosecution to prove at the trial that prior to in-custody
of constitutional rights." questioning, the confessant was informed of his constitutional rights. The presumption
of regularity of official acts does not prevail over the constitutional presumption of
The rights above specified, to repeat, exist only in "custodial interrogations," or "in- innocence. Hence, in the absence of proof that the arresting officers complied with
custody interrogation of accused persons." And, as this Court has already stated, by these constitutional safeguards, extrajudicial statements, whether inculpatory or
custodial interrogation is meant "questioning initiated by law enforcement officers after exculpatory, made during custodial investigation are inadmissible and cannot be
a person has been taken into custody or otherwise deprived of his freedom of action in considered in the adjudication of a case. In other words, confessions and admissions
any significant way."30 (Emphasis and underscoring supplied) in violation of Section 12 (1), Article III of the Constitution are inadmissible in evidence
Ayson adds: against the declarant and more so against third persons. This is so even if such
statements are gospel truth and voluntarily given.34 (Emphasis and underscoring
The employee may, of course, refuse to submit any statement at the investigation, that supplied)
is his privilege. But if he should opt to do so, in his defense to the accusation against
him, it would be absurd to reject his statements, whether at the administrative Petitioners at all events argue that their written statements were obtained through
investigation, or at a subsequent criminal action brought against him, because he had deceit, promise, trickery and scheme, they claiming that Lily dictated to them their
contents. There is nothing on record, however, buttressing petitioners’ claim other cattle; (4) the property stolen consists of coconuts taken from the premises of a
than their self-serving assertion. The presumption that no person of normal mind plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the
would deliberately and knowingly confess to a crime unless prompted by truth and property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or
conscience35 such that it is presumed to be voluntary until the contrary is proved thus any other calamity, vehicular accident or civil disturbance.43
stands.36
Cashier Rita testified in a detailed and categorical manner how the petitioners took the
The circumstances surrounding the execution of the written admissions likewise alleged amounts of "short-over" deducted from the sum of cash collections. The
militate against petitioners’ bare claim. Petitioners admittedly wrote their respective tampered invoices presented by the prosecution which glaringly show the variance in
letters during office hours in Lily’s office which was located in the same open booth or the amounts corroborate Rita’s claim.
counter occupied by the cashier and credit card in-charge.37 And this Court takes
note of the observation of the trial court that petitioners’ written notes were "neatly Rosario contends, however, that there was no "unlawful taking" since the amounts of
written in Tagalog, and not in broken Tagalog as spoken by Lily Ong".38 "short-over" did not belong to Western. The argument does not lie. The "excess" sums
formed part of the selling price and were paid to, and received by, Western. The
In another vein, Rosario labels her written statement as a mere "apology for breach of discrepancy in the amounts came about on account of the alteration in the copies of
procedure".39 Her resort to semantics deserves scant consideration, however. A the invoices which should have faithfully reflected the same amount paid by the
cursory reading of her letter reveals that she confessed to the taking of "short-over." customer.

There is a "short-over" when there is a discrepancy between the actual amount As for petitioners’ claim of entitlement to the "excess" amounts as salespersons’
collected appearing in the yellow (warehouse) copy and the remitted amount commission, it was not established in evidence.
appearing in the blue (accounting) copy.40
Even assuming that the "short-over" was intended to defray sundry expenses, it was
In criminal cases, an admission is something less than a confession. It is but a not incumbent upon the salespersons to claim them and automatically apply them to
statement of facts by the accused, direct or implied, which do not directly involve an the miscellaneous charges. It was beyond the nature of their functions. The utilization
acknowledgment of his guilt or of his criminal intent to commit the offense with which of the "short-over" was not left to the discretion of the salespersons. The element of
he is bound, against his interests, of the evidence or truths charged. It is an unlawful taking was thus established.
acknowledgment of some facts or circumstances which, in itself, is insufficient to
authorize a conviction and which tends only to establish the ultimate facts of guilt. A A further review of the nature of petitioners’ functions shows, however, that the
confession, on the other hand, is an acknowledgment, in express terms, of his guilt of element of grave abuse of confidence is wanting in the case.
the crime charged.41 Q : As an accountant employee since June 1995, Mr. Witness, you are familiar that in
The issue on the admissibility of petitioners’ respective extra-judicial statements aside, the procedure in any particular branch of Western Marketing Corporation, are you
an examination of the rest of the evidence of the prosecution does not set petitioners aware if somebody buys an item from one store, do you know the flow of this sale?
free. A : Yes, sir.
The elements of the crime of Theft as provided for in Article 308 of the Revised Penal Q : In fact, in the store there are employees which are assigned with specific duties or
Code are: (1) that there be taking of personal property; (2) that said property belongs functions, is it not?
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 A : Yes, sir.
use of violence against or intimidation of persons or force upon things.42
Q : Like for instance, let’s take the case of Filipina Orellana. Her function is merely to
Theft becomes qualified when any of the following circumstances is present: (1) the entertain customers who go to the store and intend to buy one of the items that are
theft is committed by a domestic servant; (2) the theft is committed with grave abuse displayed, is it not?
of confidence; (3) the property stolen is either a motor vehicle, mail matter or large
A : Yes, sir. had access to the merchandise, they had no access to the cashier’s booth or to the
cash payments subject of the offense.
Q : So, if this customer is resolved to buy one item, Filipina Orellana as a sales clerk,
all she has to do is to refer the particular customer to another employee of the Lily conceded that petitioners were merely tasked to "assist in the sales from day to
company, is that correct? day"48 while Camilo admitted that the cashier is the custodian of the cash sales
invoices and that no other person can handle or access them.49 The limited and
A : Yes, sir. peculiar function of petitioners as salespersons explains the lack of that fiduciary
Q : Now, you have also employees who are preparing invoices, they are called relationship and level of confidence reposed on them by Western, which the law on
invoicers, is it not? Qualified Theft requires to be proven to have been gravely abused. Mere breach of
trust is not enough. Where the relationship did not involve strict confidence, whose
A : Yes, sir. violation did not involve grave abuse thereof, the offense committed is only simple
theft.50 Petitioners should therefore be convicted of simple theft, instead of Qualified
Q : So when Filipina Orellana refers this customer to the invoicer, the invoicer now will
Theft.
take over from that function of Filipina Orellana after referring this customer?
On Criminal Case No. Q-96-67827 respecting petitioners’ collective guilt in taking
A : Yes, sir.
away merchandise by making it appear that certain items were purchased with the use
Q : And this invoicer now will refer the invoice for this particular item for payment to the of stolen cash sales invoices:
cashier of the company, is it not?
It is settled that conspiracy exists when two or more persons come to an agreement
A : Yes, sir. concerning the commission of a crime and decide to commit it. To effectively serve as
a basis for conviction, conspiracy must be proved as convincingly as the criminal act.
Q : And it is the cashier who will receive the payment from this customer? Direct proof is not absolutely required for the purpose.
A : Yes, sir. A review of the inference drawn from petitioners’ acts before, during, and after the
Q : And in fact, the customer or the cashier will receive the exact amount of payment commission of the crime to indubitably indicate a joint purpose, concert of action and
as reflected in the invoice that was prepared by the invoicer, is it not? community of interest is thus in order.51

A : Yes, sir. In Rosario’s case, the Office of the Solicitor General made a sweeping conclusion that
the extent of her participation in the act of taking merchandise need not be specified
Q : From that point up to the payment, Filipina Orellana has no more hand in that since she attributed her other act of taking "short-over" to "pakikisama" or
particular transaction, her function is only to entertain and refer the customer for sales companionship.52 The conclusion does not persuade.
purposes, that is correct?
Mere companionship does not establish conspiracy.53 As indicated early on, there
A : Yes, sir.44 (Emphasis, underscoring and italics supplied) were two different sets of imputed acts, one individual and the other collective.
Rosario’s admission was material only to her individual guilt as she referred only to the
Mere circumstance that petitioners were employees of Western does not suffice to
"short-over". The wording of her admission cannot be construed to extend to the other
create the relation of confidence and intimacy that the law requires.45 The element of
offense charging conspiracy under which no overt act was established to prove that
grave abuse of confidence requires that there be a relation of independence,
Rosario shared with, and concurred in, the criminal design of taking away Western’s
guardianship or vigilance between the petitioners and Western.46 Petitioners were not
merchandise.1âwphi1
tasked to collect or receive payments. They had no hand in the safekeeping,
preparation and issuance of invoices. They merely assisted customers in making a The prosecution relied on Aurora’s statement that Flormarie’s husband mentioned
purchase and in demonstrating the merchandise to prospective buyers.47 While they Rosario as among those involved in the anomaly.54 Under the hearsay evidence rule,
however, a witness can testify only to those facts which he knows of his personal
knowledge, that is, those which are derived from his own perception, except as As for the penalty for Qualified Theft, it is two degrees higher than that for Simple
otherwise provided in the Rules.55 Theft, hence, the correct penalty is reclusion perpetua.
Aurora testified that she witnessed Filipina, along with Benitez, in inter alia hiring third WHEREFORE, the Decision of the Court of Appeals dated December 18, 2002 is
persons to pose as customers who received the items upon presenting the tampered MODIFIED.
invoice.56
In Criminal Case No. Q-96-67829, petitioner ROSARIO V. ASTUDILLO is found guilty
Filipina in fact gave a written statement acknowledging her own act of asporting the beyond reasonable doubt of Simple Theft, and is sentenced to suffer an indeterminate
merchandise. The rule is explicit that the act, declaration or omission of a party as to a penalty ranging from Two (2) Years, Four (4) Months and One (1) Day of prision
relevant fact may be given in evidence against him.57 The declaration of an accused correccional in its medium and maximum periods as minimum, to Seven (7) Years,
acknowledging his guilt of the offense charged, or of any offense necessarily included Four (4) Months and One (1) Day of prision mayor in its minimum and medium periods
therein, may be given in evidence against him.58 as maximum, and to pay to the offended party the amount of ₱12,665.00 as civil
liability.
Moreover, Filipina’s statement dovetailed with Benitez’s admission, which was
corroborated by Flormarie’s confessions.59 In cases alleging conspiracy, an extra- In Criminal Case No. Q-96-67830, petitioner FILIPINA M. ORELLANA is found guilty
judicial confession is admissible against a co-conspirator as a circumstantial evidence beyond reasonable doubt of Simple Theft, and is sentenced to suffer an indeterminate
to show the probability of participation of said co-conspirator in the crime penalty ranging from Two (2) Months, and One (1) Day of arresto mayor in its medium
committed.60 and maximum periods as minimum, to One (1) Year, Eight (8) Months and Twenty-
One (21) Days of prision correccional in its minimum and medium periods as
Except with respect to Rosario, then, this Court finds well-taken the trial court’s maximum, and to pay to the offended party the amount of ₱4,755.00 as civil liability.
observation that the admissions were full of substantial details as to how the accused
conspired to commit the criminal acts and as to how they manipulated the sales In Criminal Case No. Q-96-67827, petitioner ROSARIO V. ASTUDILLO is acquitted.
transactions at Western to effect and consummate the theft of the goods.
In all other respects, the assailed Decision is affirmed except that petitioner FILIPINA
In fine, insofar as Filipina is concerned, a thorough evaluation of the evidence M. ORELLANA is sentenced to suffer the penalty of reclusion perpetua with the
warrants the affirmance of her guilt beyond reasonable doubt of having conspired with accessory penalties under Article 40 of the Revised Penal Code.
Benitez et al.
SO ORDERED.
On the imposition of the correct penalty, People v. Mercado61 is instructive. In the
determination of the penalty for Qualified Theft, note is taken of the value of the CONCHITA CARPIO MORALES
property stolen, which is ₱797,984.00. Since the value exceeds ₱22,000.00, the basic Associate Justice
penalty is prision mayor in its minimum and medium periods to be imposed in the
maximum period — Eight (8) Years, Eight (8) Months and One (1) Day to Ten (10) WE CONCUR:
Years of prision mayor.
LEONARDO A. QUISUMBING
To determine the additional years of imprisonment, the amount of ₱22,000.00 is
Associate Justice
deducted from ₱797,984.00, which yields a remainder of ₱775,984.00. This amount is
then divided by Chairperson
₱10,000.00, disregarding any amount less than ₱10,000.00. The end result is that 77 ANTONIO T. CARPIO
years should be added to the basic penalty.
Associate Justice
The total imposable penalty for simple theft should not exceed 20 years, however.
DANTE O. TINGA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING

Associate Justice
Chairperson
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the Court’s
Division.
ARTEMIO V. PANGANIBAN

Chief Justice