THIRD DIVISION

ROSARIO V. ASTUDILLO,

G.R. No. 159734

Petitioner,
Present:

- versus -

QUISUMBING, J., Chairperson,

CARPIO,
CARPIO MORALES,

PEOPLE OF THEPHILIPPINES,

TINGA, and

Respondent.

VELASCO, JR., JJ.

x----------------------------------------x

FILIPINA M. ORELLANA,

G.R. No. 159745

Petitioner,

- versus -

PEOPLE OF THEPHILIPPINES,

Promulgated:

Respondent.
November 30, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CARPIO MORALES, J.:
Petitioners Rosario Baby Astudillo (Rosario) and Filipina Lina Orellana
(Filipina) via separate petitions for review on certiorari seek a review of the
Decision[1] and the Resolution[2] of the

Court of Appeals affirming with modification that of the

Regional Trial Court of

Quezon City, Branch 78[3](the trial court) finding them guilty of Qualified Theft and
denying their Motions for Reconsideration, respectively.
On complaint of Western Marketing Corporation (Western), petitioners were
collectively charged with Qualified Theft, along with Flormarie Robel (Flormarie) and
Roberto Benitez (Benitez), in Criminal Case No. Q-96-67827, under an Information
dated September 9, 1996 reading:
The undersigned accuses FLORMARIE CALAJATE ROBEL,
ROBERTO F. BENITEZ, ROSARIO ASTUDILLO a.k.a. Baby and FILIPINA
ORELLANA Y MACARAEG of the crime of QUALIFIED THEFT as follows:

That during the period comprised from January 1996 to

February 1996, the above-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
WESTERN MARKETING CORPORATION, represented by LILY CHAN ONG,
and as such had free access to the company premises, materials,
supplies and items store[d] thereat, conspiring, confederating together
and mutually helping one another, with 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
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 and withdrawals of merchandise with the
total value of P797,984.00 Philippine Currency, belonging to the said
WESTERN MARKETING CORPORATION, to its damage and prejudice.
CONTRARY TO LAW.[4] (Emphasis supplied)
Additionally, petitioners, Benitez and Norberto Carlo Javier (Javier) were
individually charged also with Qualified Theft in four (4) separate Informations all
dated September 9, 1996.
The Information indicting petitioner Rosario, docketed as Criminal Case Nos.
Q-96-67829, and that indicting petitioner Filipina, docketed as Q-96-67830,
respectively read:
The undersigned accuses ROSARIO ASTUDILLO a.k.a. Baby of the
crime of QUALIFIED THEFT as follows:
That on or about the period from May 1, 1994 to February 16,
1996, in Quezon City, Philippines, the above-named accused, being
then employed as sales representative/clerk at the WESTERN
MARKETING CORPORATION (P. Tuazon Branch), represented by LILY
CHAN ONG, and as 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, then and there, wilfully, unlawfully

and feloniously take, steal and carry away the excess sum/amount
between the tag price and discounts price in the sum of P12,665.00,
belonging to the said WESTERN MARKETING CORPORATION, to its
damage and prejudice in the amount aforementioned.

CONTRARY TO LAW.
x x x

The undersigned accuses FILIPINA ORELLANA Y MACARAEG of

the crime of QUALIFIED THEFT, committed as follows:
That on or about the period from May 1, 1994 to January 27,
1996, in Quezon City, Philippines, the above-named accused, being
then employed as Sales clerk at the WESTERN MARKETING
CORPORATION, represented by LILY CHAN ONG, and as 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,
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 sold by her to company customers, in the sum
ofP4,755.00, belonging to the said WESTERN MARKETING CORPORATION, to
its damage and prejudice in the amount aforementioned.
CONTRARY TO LAW.[5]
Petitioners, Benitez and Javier, with the assistance of their respective
counsel, pleaded not guilty during arraignment.[6] Flormarie has remained at large.
By Order of December 10, 1997, Criminal Case No. Q-96-67828, the case
against Javier, was dismissed on account of the desistance of the private
complainant.[7]

The remaining cases

against petitioners and Benitez were

consolidated for joint trial.

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 sentenced as follows:
IN CRIMINAL CASE NO. Q-96-67827
Accused Roberto F. Benitez, Rosario Astudillo a.k.a. Baby,
andFilipina Orellana y Macaraeg shalleach suffer imprisonment
of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to
FOURTEEN (14) YEARS, as maximum, of reclusion temporal,
and to pay the amount of P797,984.00, jointly and severally for
their civil liability;
IN CRIMINAL CASE NO. Q-96-67829
Accused Rosario Astudillo a.k.a. Baby, shall suffer
imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as
minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion

temporal, and to pay the amount of P12,665.00 for her civil

liability;
IN CRIMINAL CASE NO. Q-96-67830
Accused
Filipina
Orellana
y
Macaraeg,
shall
suffer
imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as
minimum, to FOURTEEN (14) YEARS, as maximum, of reclusion
temporal, and to pay the sum of P4,755.00 for her civil liability;
and
IN CRIMINAL CASE NO. Q-96-67831
Accused Roberto F. Benitez, shall suffer imprisonment of
TWELVE (12) YEARS and ONE (1) DAY, as minimum, to
FOURTEEN (14) YEARS, as maximum, of reclusion temporal,
and to pay the amount of P11,079.00 for his civil liability.
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.
SO
supplied)

ORDERED.[8](Emphasis

in

the

original;

underscoring

Petitioners and Benitez elevated their cases on appeal. The Court of Appeals
affirmed the trial courts judgment with modification as to the penalties imposed,
thus:
WHEREFORE, the decision dated May 28, 1998 of the Regional
Trial Court of Quezon City, Branch 78 isAFFIRMED with MODIFICATION.
1. In Criminal Case No. Q-96-67827, appellants Roberto
Benitez, Rosario Astudillo and Filipina Orellana are found guilty beyond
reasonable doubt of qualified theft and are hereby sentenced to suffer
the penalty ranging from 10 years and 1 day of prision mayor in its
maximum period to 15 years of reclusion temporal as maximum, and
to pay to the offended party the amount of P797,984.00, jointly and
severally, as reparation for the unrecovered stolen merchandise;
2. In Criminal Case No. Q-96-67829, appellant Rosario
Astudillo is found guilty 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 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 P12,665.00 as
reparation for the stolen goods.
3. In Criminal Case No. Q-96-67830, appellant Filipina Orellana
is found guilty beyond 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 minimum to 8
years and 1 day of prision mayor in its medium period as maximum
and to pay to the offended party the amount of P4,755.00 as
reparation for the stolen property;
4. In Criminal Case No. Q-96-67831, appellant Roberto Benitez
is found guilty beyond 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 and 1
day of prision mayor in its maximum period as maximum and to pay
to the offended party the amount of P11,079.00 as reparation for the
stolen goods.

SO ORDERED.[9] (Emphasis in the original; underscoring

supplied)
After petitioners and Benitezs respective Motions for Reconsideration were
denied by the Court of Appeals, petitioners filed these separate petitions for review
which were, on motion of the Office of the Solicitor General, ordered consolidated.
[10]
In her petition, Rosario proffers the following assignment of errors:
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT CONSIDERED AN
APOLOGY FOR BREACH OF PROCEDURE AS AN ADMISSION OF A CRIME.
THE COURT A QUO ERRED WHEN IT DEPARTED [FROM] THE NORMAL
COURSE OF JUDICIAL PROCEEDING AND CONVICTED PETITIONER OF
THE OFFENSE OF THEFT WITHOUT THE ESSENTIAL ELEMENT OF
UNLAWFUL TAKING.
THE COURT OF A QUO (sic) GRIEVOUSLY ERRED WHEN IT ABUSED ITS
DISCRETION TO ARRIVE AT CONCLUSIONS OF FACTS BY INDECENTLY
CONSIDERING AND DISTORTING EVIDENCE TO CONFORM TO ITS
FLAWED CONCLUSION.[11] (Underscoring supplied)
On her part, Filipina raises the following issues:
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN
AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT
CONVICTING THE PETITIONER FILIPINA ORELLANA Y MACARAEG OF
THE CRIME CHARGED DESPITE INSUFFICIENCY OF EVIDENCE
WHETHER OR NOT AN EXTRA-JUDICIAL ADMISSION OBTAINED
THROUGH TRICKERY AND SCHEME WITHOUT THE BENEFIT AND
ASSISTANCE OF COUNSEL IS A SUFFICIENT GROUND TO CONVICT AN
ACCUSED
WHETHER OR NOT CONSPIRACY MAY BE PROVED SIMPLY ON THE
GROUND THAT ALL ACCUSED ARE CO-EMPLOYEES AND WORKING IN
ONE COMPANY[12] (Underscoring supplied)
From the evidence for the prosecution, the following version is gathered:
Petitioners were hired by Western, a chain of appliance stores, as
salespersons at its 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 same branch of Western.[13]
On February 21, 1996, in the course of preparing the January monthly sales
report of 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 Cash Sales Invoice No. 128366. Upon verification from Westerns
head office, Camilo learned that the branch received the booklet containing 50 cash
sales invoices to which Invoice No. 128366 formed part.
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 reflect any remittance of payments from the transactions covered by
the said invoices.
Some cash sales invoices were later recovered. From recovered Invoice No.
128366, Camilo found out that Flormarie was the one who filled it up and received
the payment reflected therein.
From recovered Invoice Nos. 128358 and 128375, Camilo found out that the
goods covered thereby were missing. Concluding that the transactions under the
said invoices were made but no payment was remitted to Western, Camilo reported
the matter to Ma. Aurora Borja (Aurora), the branch assistant manager.
Benitez soon approached Camilo and requested him not to report the matter
to the management, he cautioning that many would be involved.
Aurora and Camilo later met with Benitez, Filipina, cashiers Rita Lorenzo
(Rita) and Norma Ricafort (Norma) during which Benitez and Filipina pleaded with
Camilo not to report the matter to the management.

Flormarie, who called on

Camilo by telephone, made a similar plea as she admitted to stealing the missing
booklet of invoices, she explaining that her father was sick and had to undergo
medical operation, and offering to pay for the goods covered thereby.[14]
In the meantime, Flormarie had gone absent without leave.
Aurora eventually reported the case of the missing invoices and the shortage
of cash sales collection to Westerns branch manager Lily Chan Ong (Lily).[15]
In a subsequent meeting with Lily, Filipina admitted having brought home
some appliances while Benitez gave a handwritten statement reading:[16]
Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay Mrs.
Lily Ong at Western Marketing Corp. Ang mga kasalanan ako po ay:
1) Ang pagkuha ng Promo na dapat ay para sa Customer.
2) Ang paggamit ng gift check na para rin sa Customer ang
kinukuha ko at ako ang gumagamit.
3) Ang pagamit na rin sa Pera na tinatawag na Short-Over ay
amin ding ginagawa. Example nagbayad angCustomer ng 9000 and
C.P. 8,900 and 9,000 ay nasulat sa original na INV.
4) Ang pagkuha na rin ng mga Product tulad ng sumusunod, na
ako nagplano at si Ate Lina.
Kay Ate Lolit

Tiffin Carrier
Cookware Set 7 pcs.

Ate Lina

Cookware Set 7 pcs.

Norma
Airpot Lemon

Cookware Set 7 pcs.

Robert
Rice Bowl

National Elec. Stove HNK-211

Ito lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po

ay nangangako na hindi na ito uulitin anglahat ng mga kasalanan sa
Western ay kay Mrs. Lily Ong at Pinapangako ko po na Sumpa man
kasama angpamilya at salamat din po dahil ako ay pinatawad nila at
binigyan pa ng isang pagkakataon. Maramingmaraming salamat po.
[17] (Emphasis and underscoring supplied)
In a still subsequent meeting with Lily, Filipina made a written statement in
the formers presence reading:
Ako po si Lina M. Orellana na nangangako kay Ate Lily na
hinding-hindi ko na uulitin iyong naglalabas ng mga items tulad ng
cookware set at casserole na ang mga kasama ko po rito ay sina Lolit,
Norma, Robert naisinagawa namin. Na kami po si Robert ang nagsabi
kay Lolit na maglabas ng stock pero bago po naminginagawa iyon
nagsabi po kami kay Lolit na sumagot naman ng ng oo pero kami po ni
Robert and nagkumbinsisa dalawa. Kung mauulit pa ho ito kung
anuman po ang gusto ni Mam Lily na gawin sa akin ay lubos ko
pongtatanggapin.[18] (Underscoring supplied)

Also in a meeting with Lily, Rosario, who was earlier implicated by Flormaries
husband in his telephone conversation with Aurora,[19] wrote:
Mam Lily,
Sana ho Ate Lily patawarin ninyo ako sa nagawa kong
kasalanan, regarding sa Short-over. Siguro honagawa ko lang ho
yon sa pakikisama sa kanila, sa mga kasamahan ko dito sa Nuestra,
alam ko ho na mali yonkaya pinagsisisihan ko ho yon. Sana ho
mapatawad ninyo ako sa nagawa kong kasalan.
Yun pong tungkol sa kaso ni Marie, wala ho akong alam don.
Kumare ko nga ho sya pero yungpagnanakaw niyang ginawa wala
akong kinalaman don. Kahit ho siguro magkautang-utang ako hindi
komagagawa yon.
Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa kong
kasalanan at pinapangako ko ho nahinding-hindi ko na uulitin.

Maraming salamat ho,

(Sgd.)Baby Astudillo

P.S.

yun ho palang perang na-oover naming, pinaghahatian po

namin nila Rita at ni Marie.[20] (Underscoring supplied)

Still in a separate meeting with Lily and her siblings on one hand, and
Flormarie and her husband on the other, Flormarie wrote what she knew of the

incident as follows:
Ito ang nalalaman ko kung paanong nangyari ito sa loob ng
tindahan ng Western Mktg. P. Tuazon Branch.
*SHORT-OVER
Ang tag price, kung ang customer ay hindi tumawad, binabago
na lang ang presyo sa duplicate copy and then kinukuha na lang sa
cashier ang pera tapos naghahati-hati na lang si robert, baby, lina,
lolit, Rita at Marie, Norma, Fe.
xxx
*INVOICE
Ito ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at
pagkatapos binigyan niya ako ng (3 resiboseries) at hindi ko na po
alam kung anong ginawa na niya sa invoice.
Ang paraan magreresibo ako tatatakan ko ng paid kasama kung
sino ang taong maglalabas ng unit taposibebenta ko na yong unit
yung pera kinukuha ko na bibigyan ko lang siya ng kahit magkanong
amount kung sinoyong taong inutusan ko.[21] (Underscoring supplied)
Flormarie, in the company of her sister Delma and Lily, subsequently
appeared before a notary public to execute a similar statement reading:
xxxx
2. Ako ngayon ay kusang loob na lumapit sa Western upang
humingi ng kapatawaran sa aking mganagawa at upang
makipagkasundo sa isang maayos na pagbabayad sa mga halagang
aking nakuha sa Western atmahalaga sa lahat, upang isiwalat ang
mga taong kasangkot sa katiwaliang ito at mga paraan ng paggawa
nito.

3. Halos lahat ng mga kawani ng tindahan ay kasangkot sa

mga sumusunod na katiwalian:

3.1. Short-Over Ito ay ang pagtatala ng mas

mababang halaga ng paninda sa mga duplicate copies ng
resibo kapag ang kustomer ay hindi tumawad sa tag price at
nagbayad ng cash. Ang sobrang halagaay pinaghahatian
namin nina ROBERT BENITEZ (Robert); ROSARIO ALTUDILLO
(Baby); FILIPINAORELLANA (Lina); LOLIT BORJA (Lolit);
RITA LORENZO (Rita); NORMA RICAFORT (Norma) at FE
CABIGAN (Fe).
xxxx
3.3. INVOICING Sa pamamagitan ng mga resibong na
may tatak na paid na ibinibigay ni Robert saaking nailalabas
ko ang mga paninda na akin namang naibebenta.[22]
x x x x (Emphasis and underscoring supplied)
Flormarie and her sister, together with Lily, later executed a statement

before Cubao SPO1 Jose Gil Gregorio, reading:

TANONG:

Ayon kay MARLON CAMILO, Western Marketing Corp

Branch Accountant nadiskubre niya angpagkawala ng
isang booklet ng Sales Cash Invoice (50pcs.) na may
numerong 128351 to 128400nitong mga nakaraang
araw may kinalaman ka ba sa nasabing pangyayari?

SAGOT:

Opo.

Kung mayroon kang kinalaman sa nasabing pangyayari

ito ba ay kusang loob mong ginawa?

Itinuro lang po ito sa akin.

Ano ang iyong ginawa?

Ako po ang kumuha noong nawawalang isang booklet

ng Cash Sales Invoice sa turo ni ROBERT BENITEZ na
Sales Supervisor sa Western Marketing Corp.
xxxx

Sa tatlong series ng Cash Sales Invoice na napunta sa

iyo ano ang iyong ginawa?

Ginamit ko po ito sa paglalabas ng mga items/unit sa

Western Marketing Corp.
xxxx

Sa maikling salaysay, ikuwento mo nga sa akin kung

papaano mo isinagawa ang iyong pagnanakawsa paggamit ng mga Cash Sales Invoice?
:

Ganito po ang ginawa ko, iniuwi ko sa aming bahay

yung tatlong series ng resibo na ibinigay sa akinni
ROBERT BENITEZ at tinuruan po niya ako na sulatan ko
yung mga resibo ng mga items na gustokong ilabas, at
pagkatapos po ay ibinalik ko ito sa Western Marketing
Corp at binigay ko ito kay ROBERT BENITEZ, at ang sabi
niya sa akin ay siya na raw ang bahala na magpalabas
noong mga items na aking isinulat sa resibo. x x x x

Bukod kay ROBERT BENITEZ may mga tao bang

karamay sa naganap na transaksiyon?

Mayroon po.

Sino-sino ito?

T
S

Sina LINA ORELLANA po, Sales Lady po, ROSARIO

ASTUDILLO, sales lady.
:

Sa iyong pagkakaalam, ano ang kanilang mga

partisipasyon na naganap na transaksiyon?
Si LINA ORELLANA po ang sales lady, at siya rin ang
may pirma doon sa resibo, at ganoon din poitong si
ROSARIO ASTUDILLO.
xxxx

Magkano naman ang ibinibigay sa iyo ni ROBERT

BENITEZ kapag nailabas ng yung mga items doonsa

resibo na iyong ginawa?

S

Hindi ko na po matandaan basta pinapartihan niya ako at

yung dalawang sales lady.[23] (Emphasis and underscoring
supplied)

In an inventory of stocks conducted at the branch office of Western, several

other appliances were found missing as were unauthorized deductions from the
cash collections.[24] The total missing merchandise was valued at P797,984.00 as
reflected in the inventory report.[25] And discrepancies between the actual sales
per cash sales invoice and the cash remittance to the company in the sum
ofP34,376.00 for the period from January 1994 to February 1996[26] were also
discovered, prompting Western to initiate the criminal complaints for Qualified
Theft.
Both petitioners raise as issue whether the employees extra-judicial
admissions taken before an employer in the course of an administrative inquiry are
admissible in a criminal case filed against them.
Petitioners posit in the negative. They argue that as their extra-judicial
statements were taken without the assistance of counsel, they are inadmissible in
evidence, following Section 12, Article III of the 1987 Constitution.[27]
It bears noting, however, that when the prosecution formally offered its
evidence, petitioners failed to file any objection thereto including their extra-judicial
admissions.[28] At any rate, this Court answers the issue in the affirmative. People
v. Ayson[29] is instructive:
In Miranda, Chief Justice Warren summarized the procedural safeguards laid
down for a person in police custody, in-custody interrogation being regarded as
the commencement of an adversary proceeding against the suspect.
He must be warned prior to any questioning that
he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has
the right to the 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 must be afforded to him
throughout the interrogation. After such warnings have
been given, such opportunity afforded him, the
individual may knowingly and intelligently waive these
rights and agree to answer or make a statement. But
unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no
evidence obtained as a result of interrogation can be
used against him.
The

objective

is

to

prohibit

incommunicado

interrogation

of

individuals in a police-dominated atmosphere, resulting in selfincriminating statement without full warnings of constitutional rights.
The rights above specified, to repeat, exist only in custodial
interrogations, or in-custody interrogation of accused persons. And,
as this Court has already stated, by custodial interrogation is meant
questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action
in any significant way.[30] (Emphasis and underscoring supplied)
Ayson adds:
The employee may, of course, refuse to submit any statement at the
investigation, that 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 investigation, or at a
subsequent criminal action brought against him, because he had not
been accorded, prior to his making and presenting them, his Miranda
rights (to silence and to counsel and to be informed thereof, etc)
which, to repeat, are relevant in custodial investigations.[31]
People v. Tin Lan Uy, Jr. [32] is similarly instructive:
Clearly, therefore, the rights enumerated by the constitutional
provision invoked by accused-appellant are not available before
government investigators enter the picture. Thus we held in one case
(People v. Ayson, [supra]) that admissions made during the course of
an administrative investigation by Philippine Airlines do not come
within the purview of Section 12. The protective mantle of the
constitutional provision also does 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 a mayor approached as a personal confidante and not in his
official capacity. (Emphasis and underscoring supplied)
The Court of Appeals did not thus err in pronouncing that petitioners were not
under custodial investigation to call for the presence of counsel of their own choice,
hence, their written incriminatory statements are admissible in evidence.
The extra-judicial confession[33] before the police of Flormarie (who, as
earlier stated, has remained at large) in which she incriminated petitioners bears a
different complexion, however, as it was made under custodial investigation. When
she gave the statement, the investigation was no longer a general inquiry into an
unsolved crime but had begun to focus on a particular suspect. The records show
that Camilo had priorly reported the thievery to the same police authorities and
identified Flormarie and Benitez as initial suspects.
It is always incumbent upon the prosecution to prove at the
trial that prior to in-custody questioning, the confessant was informed
of his constitutional rights. The presumption of regularity of official
acts does not prevail over the constitutional presumption of
innocence. Hence, in the absence of proof that the arresting officers
complied with these constitutional safeguards, extrajudicial

statements, whether inculpatory or exculpatory, made during

custodial investigation are inadmissible and cannot be considered in
the adjudication of a case.
In other words, confessions and
admissions in violation of Section 12 (1), Article III of the Constitution
are inadmissible in evidence 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 supplied)
Petitioners at all events argue that their written statements were obtained
through deceit, promise, trickery and scheme, they claiming that Lily dictated to
them their contents. There is nothing on record, however, buttressing petitioners
claim other than their self-serving assertion.

The presumption that no person of

normal mind would deliberately and knowingly confess to a crime unless prompted
by truth and conscience[35] such that it is presumed to be voluntary until the
contrary is proved thus stands.[36]
The circumstances surrounding the execution of the written admissions
likewise militate against petitioners bare claim. Petitioners admittedly wrote their
respective letters during office hours in Lilys office which was located in the same
open booth or 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 written in Tagalog, and not in broken Tagalog as spoken by Lily
Ong.[38]
In another vein, Rosario labels her written statement as a mere apology for
breach of procedure.[39] Her resort to semantics deserves scant consideration,
however. A cursory reading of her letter reveals that she confessed to the taking of
short-over.
There is a short-over when there is a discrepancy between the actual
amount collected appearing in the yellow (warehouse) copy and the remitted
amount appearing in the blue (accounting) copy.[40]
In criminal cases, an admission is something less than a
confession. It is but a statement of facts by the accused, direct or
implied, which do not directly involve an acknowledgment of his guilt
or of his criminal intent to commit the offense with which he is bound,
against his interests, of the evidence or truths charged. It is an
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 confession, on the other hand, is an
acknowledgment, in express terms, of his guilt of the crime charged.
[41]
The issue on the admissibility of petitioners respective extra-judicial
statements aside, an examination of the rest of the evidence of the prosecution
does not set petitioners free.

The elements of the crime of Theft as provided for in Article 308 of the
Revised Penal Code are: (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 against or intimidation of persons or force
upon things.[42]
Theft becomes qualified when any of the following circumstances is present:
(1) the theft is committed by a domestic servant; (2) the theft is committed with
grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail
matter or large cattle; (4) the property stolen consists of coconuts taken from the
premises of a plantation; (5) the property stolen is fish taken from a fishpond or
fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon,
volcanic eruption, or any other calamity, vehicular accident or civil disturbance.[43]
Cashier Rita testified in a detailed and categorical manner how the
petitioners took the alleged amounts of short-over deducted from the sum of cash
collections.

The tampered invoices presented by the prosecution which glaringly

show the variance in the amounts corroborate Ritas claim.

Rosario contends, however, that there was no unlawful taking since the
amounts of 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 discrepancy in the amounts came about on account of the alteration
in the copies of the invoices which should have faithfully reflected the same amount
paid by the customer.
As for petitioners claim of entitlement to the excess amounts as
salespersons commission, it was not established in evidence.
Even assuming that the short-over was intended to defray sundry
expenses, it was not incumbent upon the salespersons to claim them and
automatically apply them to the miscellaneous charges. It was beyond the nature
of their functions. The utilization of the short-over was not left to the discretion of
the salespersons. The element of unlawful taking was thus established.
A further review of the nature of petitioners functions shows, however, that
the element of grave abuse of confidence is wanting in the case.
Q

As an accountant employee since June 1995, Mr. Witness, you

are familiar that in the procedure in any particular branch of
Western Marketing Corporation, are you aware if somebody

buys an item from one store, do you know the flow of this
sale?
A

Yes, sir.
:

Yes, sir.
:

Yes, sir.
:

:
:

So when Filipina Orellana refers this customer to the invoicer,

the invoicer now will take over from that function of Filipina
Orellana after referring this customer?
Yes, sir.

Q
:

And this invoicer now will refer the invoice for this particular
item for payment to the cashier of the company, is it not?
Yes, sir.

Now, you have also employees who are preparing invoices,

they are called invoicers, is it not?
Yes, sir.

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 company, is
that correct?
Yes, sir.

And it is the cashier who will receive the payment from this
customer?
Yes, sir.
And in fact, the customer or the cashier will receive the exact
amount of payment as reflected in the invoice that was
prepared by the invoicer, is it not?

Like for instance, lets take the case of Filipina Orellana. Her
function is merely to entertain customers who go to the store
and intend to buy one of the items that are displayed, is it not?

In fact, in the store there are employees which are assigned

with specific duties or functions, is it not?

Yes, sir.
:

From that point up to the payment, Filipina Orellana has no

more hand in that particular transaction, her function is only to
entertain and refer the customer for sales purposes, that is
correct?
Yes, sir.[44] (Emphasis, underscoring and italics supplied)

Mere circumstance that petitioners were employees of Western does not

suffice to create the relation of confidence and intimacy that the law requires.
[45]The element of grave abuse of confidence requires that there be arelation of
independence, guardianship or vigilance between the petitioners and Western.[46]
Petitioners were not 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 purchase and in demonstrating the merchandise to prospective buyers.

[47] While they had access to the merchandise, they had no access to the cashiers
booth or to the cash payments subject of the offense.
Lily conceded that petitioners were merely tasked to assist in the sales from
day to 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 peculiar function of petitioners as salespersons explains the lack of that
fiduciary relationship and level of confidence reposed on them by Western, which
the law on 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 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 Theft.

On Criminal Case No. Q-96-67827 respecting petitioners collective guilt in
taking away merchandise by making it appear that certain items were purchased
with the use of stolen cash sales invoices:
It is settled that conspiracy exists when two or more persons come to an
agreement 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.

Direct proof is not absolutely required for the

purpose.
A review of the inference drawn from petitioners acts before, during, and
after the commission of the crime to indubitably indicate a joint purpose, concert of
action and community of interest is thus in order.[51]
In Rosarios 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 since she attributed her other act of taking short-over to
pakikisama or companionship.[52] The conclusion does not persuade.
Mere companionship does not establish conspiracy.[53]

As indicated early

on, there were two different sets of imputed acts, one individual and the other
collective. Rosarios admission was material only to her individual guilt as she
referred only to the short-over.

The wording of her admission cannot be

construed to extend to the other offense charging conspiracy under which no overt
act was established to prove that Rosario shared with, and concurred in, the
criminal design of taking away Westerns merchandise.

The prosecution relied on Auroras statement that Flormaries husband

mentioned 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 otherwise provided in the Rules.[55]
Aurora testified that she witnessed Filipina, along with Benitez, in inter alia
hiring third persons to pose as customers who received the items upon presenting
the tampered invoice.[56]
Filipina in fact gave a written statement acknowledging her own act of
asporting the merchandise. The rule is explicit that the act, declaration or omission
of a party as to a relevant fact may be given in evidence against him.[57]

The

declaration of an accused acknowledging his guilt of the offense charged, or of any

offense necessarily included therein, may be given in evidence against him.[58]
Moreover, Filipinas statement dovetailed with Benitezs admission, which
was corroborated by Flormaries confessions.[59] In cases alleging conspiracy, an
extra-judicial confession is admissible against a co-conspirator as a circumstantial
evidence to show the probability of participation of said co-conspirator in the crime
committed.[60]
Except with respect to Rosario, then, this Court finds well-taken the trial
courts 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 transactions at Western to effect and consummate the theft of the goods.
In fine, insofar as Filipina is concerned, a thorough evaluation of the evidence
warrants the affirmance of her guilt beyond reasonable doubt of having conspired
with Benitez et al.
On the imposition of the correct penalty, People v. Mercado[61] is instructive.
In the determination of the penalty for Qualified Theft, note is taken of the value of
the property stolen, which is P797,984.00. Since the value exceeds P22,000.00, the
basic 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) Years of prision mayor.
To determine the additional years of imprisonment, the amount of
P22,000.00 is deducted fromP797,984.00, which yields a remainder of P775,984.00.
This amount is then divided by P10,000.00, disregarding any amount less than

P10,000.00. The end result is that 77 years should be added to the basic penalty.
The total imposable penalty for simple theft should not exceed 20 years,
however.
As for the penalty for Qualified Theft, it is two degrees higher than that for
Simple Theft, hence, the correct penalty is reclusion perpetua.
WHEREFORE, the Decision of the Court of Appeals dated December 18, 2002
is MODIFIED.
In Criminal Case No. Q-96-67829, petitioner ROSARIO V. ASTUDILLO is found
guilty beyond reasonable doubt of Simple Theft, and is sentenced to suffer an
indeterminate penalty ranging from Two (2) Years, Four (4) Months and One (1)
Day of prision correccional in its medium and maximum periods as minimum, to
Seven (7) Years, Four (4) Months and One (1) Day of prision mayor in its minimum
and medium periods as maximum, and to pay to the offended party the amount of
P12,665.00 as civil liability.
In Criminal Case No. Q-96-67830, petitioner FILIPINA M. ORELLANA is found
guilty beyond reasonable doubt of Simple Theft, and is sentenced to suffer an
indeterminate penalty ranging from Two (2) Months, and One (1) Day of arresto
mayor in its medium 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 maximum, and to pay to the offended party the amount of
P4,755.00 as civil liability.
In Criminal Case No. Q-96-67827, petitioner ROSARIO V. ASTUDILLO is
acquitted.
In all other respects, the assailed Decision is affirmed except that petitioner
FILIPINA M. ORELLANA is sentenced to suffer the penalty of reclusion perpetua with
the accessory penalties under Article 40 of the Revised Penal Code.
SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice