In our decision of 14 November 1994, we modified the appealed judgment of the Sandiganbayan in Criminal Case No. 14844 by holding the petitioner guilty of the complex crime of attempted estafa through falsification of official and commercial documents, and sentencing him to suffer an indeterminate penalty ranging from two (2) years, four (4) months, and one (1) day of prison correccional as minimum to ten (10) years and one (1) day of prison mayor as maximum and to pay a fine of Two Thousand Pesos (P2,000.00).
In short, we held that although the petitioner could not be convicted of the crime charged, viz., violation of Section 3(e) of R.A. No. 3019, as amended — because the said section penalizes only consummated offenses and the offense charged in this case was not consummated — he could, nevertheless, be convicted of the complex crime of attempted estafa through falsification of official and commercial documents, which is necessarily included in the crime charged.
Unable to accept our verdict, the petitioner seasonably filed a motion for reconsideration on the ground that after having been acquitted of the violation of Section 3(e) of R.A. No. 3019, a special law, he could not be convicted anymore of attempted estafa through falsification of official and commercial documents, an offense punishable under the Revised Penal Code, a general law; otherwise, the constitutional provision on double jeopardy would be violated. In other words, his acquittal of the crime charged precludes conviction for the complex crime of attempted estafa through falsification of official and commercial documents, because both offenses arose from the same overt act as alleged in the information in Criminal Case No. 14844.
In its Comment on the motion for reconsideration signed only by Assistant Solicitor General Romeo C. de la Cruz and Solicitor Josette Sonia Holgado-Marcilla, the Office of the Solicitor General disagrees with the petitioner and asserts that the rule on double jeopardy cannot be successfully invoked in this case considering that no new information for estafa through falsification of public document was filed against the petitioner; only one information was filed against him and his co-accused. For double jeopardy to exist, there must be such new information and the accused must be able to show that (1) he has been previously brought to trial, (2), in a court of competent jurisdiction, (3) upon a valid complaint or information sufficient in form and substance, (4) for the same offense or an attempt to or frustration thereof as that charged in the new information, and that (5) the case has been dismissed or terminated without his consent or after he had pleaded to the information but before judgment was rendered. 1
Nevertheless, the Office of the Solicitor General joins the petitioner in the latter’s plea for his acquittal, but for another ground, namely, insufficiency of evidence.
In the resolution of 22 August 1995, we directed the Solicitor General to inform the Court whether he agrees with the recommendation of Assistant Solicitor General De la Cruz and Solicitor Holgado-Marcilla. In his Manifestation of 14 September 1995, the Solicitor General not only expressed full agreement with the said recommendation, but even added the following observations:chanrob1es virtual 1aw library
10. After reading the Court’s Decision, the Solicitor General has noted that petitioner’s conviction is based on circumstantial evidence.
11. The law and a host of the Court’s ruling declare that circumstantial evidence is sufficient for conviction if the following conditions concur:chanrob1es virtual 1aw library
(1) There is more that one circumstances;
(2) The facts from which the inferences are derived are proven; and
(3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Section 3, Rule 133, Rules of Court).
12. In this case, it should be stressed that the inference that petitioner falsified documents appears to be based on another inference, i.e., that he was in possession of the same because he accompanied his co-accused Catre in the transactions. However, other than accompanying Catre, there is no evidence on record that petitioner had custody of the falsified documents.
13. As to the conspiracy angle, there is likewise no showing that petitioner interceded for Catre. In fact, it was Catre who talked to Calica. (p. 19-20, TSN, August 26, 1991). Neither was it shown that petitioner had a hand in the processing of the import entry declaration for the release of the shipment from the Bureau of Customs. It was not also proven that he was instrumental in the approval of the import entry declaration.
14. The elements of conspiracy, like the physical acts constituting the crime itself, must be proven beyond reasonable doubt. (People v. Manuel, 234 SCRA 532). To hold an accused guilty as co-principal by reason of conspiracy, it must be shown that he performed an overt act in pursuance or furtherance of the conspiracy. (People v. Roxas, 241 SCRA 369). In this regard, it is respectfully submitted that there is no overt act conclusively attributable to petitioner which would pin him down as a co-conspirator.
15. Thus, it is the inexorable duty of the Solicitor General to recommend petitioner’s acquittal, as he so recommends, inasmuch as the People was not able to adduce evidence sufficient to overcome the constitutional presumption of petitioner’s innocence.
We then required the parties to submit their respective memoranda on the following issues:chanrob1es virtual 1aw library
(a) the sufficiency of the evidence for the complex crime of attempted estafa through falsification of public and commercial documents, and
(b) the validity of the conviction therefor under an information for the violation of Section 3(e) of R.A. No. 3019, as amended, vis-a-vis the constitutional right of the accused to be informed of the nature and cause of the accusation against him.
In their respective memoranda, the petitioner and the Office of the Solicitor General are one in asserting that the petitioner could not be convicted based entirely on circumstantial evidence because of the failure of the prosecution to satisfy the requisites set forth in Section 4, Rule 133 of the Rules of Court, namely, (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The petitioner further cited portions of the transcripts of the stenographic notes of the testimony of Customs Broker Constantino Calico which prove that it was Catre alone who made the introduction to Calica that they were agents of Eversun Commercial Trading, and that it was Catre who did all the talking and directly transacted with Calica regarding the terms and conditions of the particular engagement and who actually delivered the documents to him. There is no evidence that the petitioner had a hand in the processing of the import entry declaration for the release of the shipment from the Bureau of Customs or was instrumental in the approval of the import entry declaration. Thus:chanrob1es virtual 1aw library
Q Now, did Mr. Odon Pecho actually engage your services?
A They are two, sir, Mr. Joe Catre and Mr. Odon Pecho.
Q Who actually transacted with you with regards to your services, is it Mr. Catre or Mr. Pecho?
A Mr. Joe Catre, sir.
Q So it was Joe Catre?
A Yes, sir.
Q And not Odon Pecho, is that right?
A Well, he is the companion of Mr. Catre and they introduced themselves to me that they are the authorized representative of the importer.
Q That is right. Who introduced to you?
A Mr. Catre was the one who talks [sic] to me, sir.
Q But in your testimony, the person who delivered to you the documents, the bill of lading, the commercial invoices, the packing list, the importer’s sworn statement, etc. which was made the basis of the, of your preparation for the processing of the import entry, who delivered to you these documents that you mentioned?
A Mr. Catre, sir.
Q And who talked to you about the terms and conditions of this engagement or contracts?
A Mr. Catre, sir.
Q And not Mr. Odon Pecho?
A Yes, sir.
Q Who actually delivered to you the documents, Mr. Catre or Mr. Pecho?
A It was Mr. Catre, sir, he was the one handling the case.
Q [To] Whom did you talk first?
A Mr. Catre, Your Honor, he was the one handling the case, the documents, Your Honor.
Q Do you know how they introduced themselves to you?
A That is the only thing that I remember Your Honor that they came to my office and told me that they are the importer’s representatives and that they are engaging my services.
Q Who said that?
A Mr. Catre Your Honor.
Q How about Mr. Pecho?
A No, Your Honor.
Q Did he say anything?
A At that time your Honor, it was Mr. Catre who was doing that talking.
Q Did Mr. Catre give his name to you?
A Yes, Your Honor.
Q How did he introduce himself?
A That he is Mr. Joe Catre, Your Honor.
Q How about his companion, did his companion introduce himself to you or he was introduced by Mr. Catre to you?
A He did not introduce himself to me Your Honor.
Q So during that meeting you do not know that the name of the companion of Mr. Catre is Odon Pecho.
A Yes, your Honor.
Q And how did your son attend to it?
A Two days after Your Honor, Mr. Catre called our office to assist and help them in the preparation of the cargo at the arrastre operator because that is usually being done by the broker when the shipment goes for examination. (t.s.n., Hearing of August 26, 1991).
As to the second issue, the Office of the Solicitor General rejects the theory of the petitioner and submits that the information in this case contains the essential ingredients of estafa through falsification of public and commercial documents; therefore, assuming there is sufficient evidence, the petitioner could be convicted of the complex crime of attempted estafa through falsification of public and commercial documents without violating Section 14(2), Article III of the Constitution on the right of the accused to be informed of the nature and cause of the accusation against him.
We shall first take up the second issue since it involves a constitutional right of the accused.
On the assumption that the prosecution’s evidence had satisfied the quantum of proof for conviction for the complex crime of attempted estafa through falsification of public and commercial documents, there is absolutely no merit in the petitioner’s claim that he could not be convicted of the said crime without offending his right to be informed of the nature and cause of the accusation against him, which is guaranteed by the Bill of Rights. 2 Such right, an ancient bulwark of the liberties of men, has its origin in the Bill of Rights which the people of Great Britain demanded and received from the Prince and Princess of Orange on 13 February 1688. It was adopted by the Constitution of the United States and was extended to the Philippines by Act No. 235, or the Philippine Bill of 1902. 3 It was later carried into the Jones Law and, ultimately, enshrined in the Constitutions of 1935, 1973, and 1987. It has the following objectives:chanrob1es virtual 1aw library
First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; second, to avail himself of his conviction or acquittal for protection against a further ‘prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had (United States v. Cruikshank, 92 U.S. 542). In order that this requirement may be satisfied, facts must be stated; not conclusions of law. Every crime is made up of certain acts and intent: these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff or defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. 4
Conformably therewith, the Rules of Court has prescribed the appropriate rules. 5
What determines the real nature and cause of accusation against an accused is the actual recital of facts stated in the information or complaint and not the caption or preamble of the information or complaint nor the specification of the provision of law alleged to have been violated, they being conclusions of law. 6 An incorrect caption is not a fatal mistake. 7
It follows then that an accused may be convicted of a crime which, although not the one charged, is necessarily included in the latter. Section 4, Rule 120 of the Rules of Court thus provides:chanrob1es virtual 1aw library
SEC. 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved.
The succeeding Section 5 prescribes the rule in determining when an offense includes or is included in another. We have shown in the challenged decision why the complex crime of attempted estafa through falsification of public and commercial documents is included in the offense charged. Moreover, we held that the information in this case "can also be considered as charging two offenses: the violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted estafa through falsification of official and commercial documents," and since the petitioner failed to object before trial to such duplicity, 8 he could be validly convicted of both or either of the offenses charged and proved. 9
We shall now turn to the first issue: whether the evidence adduced by the prosecution had established beyond reasonable doubt the guilt of the petitioner for the complex crime of attempted estafa through falsification of public and commercial documents. In light of the consistent and persistent negative stance of the Office of the Solicitor General, personally confirmed and reinforced by the Solicitor General in his separate Manifestation, we re-evaluated the evidence.
In our decision of 14 November 1994, we based the conviction of the petitioner on conspiracy.
The question that logically crops up then is not whether the combination of the circumstantial evidence proved in this case against the petitioner had established beyond reasonable doubt that he is guilty of the complex crime of attempted estafa through falsification of public and commercial documents, as asseverated by him and the public Respondent
. Rather, the question is whether the prosecution had discharged its duty to establish conspiracy between the petitioner and Catre.
The information 10 charges the petitioner and his co-accused Joe Catre as principals 11 who "conspir[ed], confabulat[ed], conniv[ed], confederat[ed], and mutually help[ed] one another," with Catre "representing himself to be a representative of Eversun Commercial Trading of Cotabato City, a corporation, firm or partnership which turned out to be non-existent, fake or fictitious." The evidence for the prosecution, as admitted by the respondent, only showed that it was Catre who possessed the falsified documents, contracted the services of Calica, and delivered the documents to the latter for processing. In the absence of satisfactory explanation, Catre, being the one in possession of the forged documents, is presumed to be the forger. 12 Catre, however, could not provide the explanation because only the petitioner was tried. The information states that his address is "unknown," and the record does not show that a warrant for his arrest was issued. The only warrant of arrest that was issued was that for the petitioner. 13 Assuming that such evidence and the others adduced by the prosecution are to be admitted to prove the commission of the crime, a prima facie case enough to prove the guilt of Catre with moral certainty was duly established against Catre as a principal. Accordingly, if conspiracy were proven, the petitioner would be equally guilty of the offense proved. For, in a conspiracy, every act of one of the conspirators in furtherance of a common design or purpose of such a conspiracy is, in contemplation of law, the act of each of them. 14
There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 15 Direct proof of previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused themselves when such point to a joint purpose and design, concerted action, and community of interest. 16 It is, however, settled that the same degree of proof required for establishing the crime is likewise required to support a finding of conspiracy. It other words, conspiracy must be shown to exist as clearly and as convincingly as the commission of the offense itself in order to uphold the fundamental principle that no one shall be found guilty of a crime except upon proof beyond reasonable doubt. 17
It is also essential for one to be a party to a conspiracy as to be liable for the acts of the others that there be intentional participation in the transaction with a view to the furtherance of the common design. 18 Except when he is the mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as a direct or indirect contribution in the execution of the crime planned to be committed. 19 The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. 20
Since conspiracy must be established by proof beyond reasonable doubt, then the next inquiry would be whether the prosecution was able to adduce such proof against the petitioner. It is in this respect that we agree with the People and the petitioner that the prosecution had only circumstantial evidence against the petitioner.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. 21
In the instant case, all that the prosecution was able to prove insofar as the petitioner is concerned is that he and co-accused Catre are from Surigao del Norte; that he accompanied Catre in contracting the services of customs broker Constantino Calica; and that he also was with Catre when the latter went with Dennis Calica, son of Constantino Calica, to the Manila International Container Port. In all these instances, however, it was Catre who transacted the business and did all the talking. As a matter of fact, the petitioner was not even introduced to Calica. As recapitulated by the Office of the Solicitor General in its Memorandum:chanrob1es virtual 1aw library
[T]here is no evidence that petitioner interceded for Catre. Prosecution witness Calica testified that it was Catre and not petitioner, who introduced themselves as agents of Eversun Commercial Trading. He also testified that it was Catre who did all the talking and directly transacted with him (Calica) regarding the terms and conditions of the particular engagement and it was also Catre, and not petitioner, who actually delivered the documents to him (tsn, August 26, 1991). There is no evidence that petitioner had a hand in the processing of the import entry declaration for the release of the shipment from the Bureau of Customs. There is also no evidence that petitioner was instrumental in the approval of the import entry declaration. In short, there is no showing that petitioner performed an overt act in furtherance of alleged conspiracy. 22
The evidence for the prosecution likewise failed to prove that the petitioner (1) personally represented himself as an agent of Eversun Commercial Trading; (2) knew of the falsity of any of the public and commercial documents in question; and (3) had, at any time, possession of all or some of the said documents.
Otherwise stated, there is no sufficient circumstantial evidence to prove conspiracy between the petitioner and Catre to commit the complex crime of estafa through falsification of public and commercial documents. Neither is there evidence of petitioner’s active participation in the commission of the crime. The concordant combination and cumulative effect of the acts of the petitioner as proven by the prosecution’s evidence fails to satisfy the requirements of Section 4, Rule 133 of the Rules of Court. There is reasonable doubt as to his guilt. And since his constitutional right to be presumed innocent until proven guilty 23 can be overthrown only by proof beyond reasonable doubt, 24 the petitioner must then be acquitted even though his innocence may be doubted.25cralaw:red
WHEREFORE, the petitioner’s motion for reconsideration is GRANTED. Our decision of 14 November 1994 is SET ASIDE, and another is hereby rendered REVERSING the challenged decision of 28 June 1993 and resolution of 12 August 1993 of the Sandiganbayan in Criminal Case No. 14844 and ACQUITTING petitioner ODON PECHO of the complex crime of attempted estafa through falsification of official and commercial documents, without, however, prejudice to any appropriate administrative action which his office may take against him as may be warranted by the circumstances in this case.
, Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ.
, is on leave.
1. Citing Paulin v. Gimenez, 217 SCRA 386 ; People v. Vergara, 221 SCRA 560 1993].
2. Section 14(2), Article III, 1987 Constitution.
3. U.S. v. Karelsen, 3 Phil. 223 .
4. Supra note 3, at 226.
5. Sections 6-12, Rule 110, Rules of Court.
6. Matilde v. Jabson, 68 SCRA 456 .
7. U.S. v. Lim San, 17 Phil. 273 .
8. Section 3(e), Rule 117, Rules of Court.
9. Section 3, Rule 120, Id.
10. Original Records (OR), 1.
11. Article 17, Revised Penal Code
12. Alarcon v. Court of Appeals, 125 Phil. 1110 ; 19 SCRA 688 .
13. OR, 5.
14. RAMON C. AQUINO, THE REVISED PENAL CODE, vol. 1 , 488; People v. Pama, 216 SCRA 385 ; People v. Rostata, 218 SCRA 657 ; People v. Liquiran, 228 SCRA 62 .
15. Article 8, Revised Penal Code.
16. People v. Martinado, 214 SCRA 712 ; People v. Pama, supra note 14; People v. Cordova, 224 SCRA 319 ; People v. Canillo, 236 SCRA 22 .
17. Perez v. Sandiganbayan, 180 SCRA 9 ; People v. Garcia, 215 SCRA 349 .
18. People v. Macatana, 161 SCRA 235 .
19. AQUINO, op. cit., 497.
20. People v. De Roxas, 241 SCRA 369 .
21. People v. Tiozon, 198 SCRA 368 ; People v. Alvero, 224 SCRA 16 ; People v. Genobia, 234 SCRA 699 .
22. Rollo, 204-205.
23. Section 14(2), Article III, 1987 Constitution.
24. Section 2, Rule 133, Rules of Court.
25. U.S. v. Gutierrez, 4 Phil. 493 ; People v. Sadie, 149 SCRA 240 ; Perez v. Sandiganbayan, supra note 17.