Republic of the PhilippinesDepartment of Justice, Region V

National Prosecution ServiceCITY PROSECUTION OFFICE

Sorsogon City, Sorsogon

SIMON DEYTO NPS docket No. V-06-INV-14K-0289

Complainant, For:

QUALIFIED THEFT -Versus-

ARTURO ESICO &LESLIE DEMDAM

Respondentsx----------------------------------------x

URGENT MOTION FOR RECONSIDERATION

COMES NOW the Complainant, through the undersigned counsel, unto this Honorable Office, respectfully moves for the reconsideration of the abovementioned resolution by averring the following:

TIMELINESS OF THE MOTION

1. On February 27, 2015, the Complainant received a Resolution dated February 5, 2015 over the case which states, among others:

“WHEREFORE, premises considered undersigned investigating prosecutor respectfully recommends the dismissal of the above-entitled case in view of the pendency of a civil case involving the same parties for the same cause and for insufficiency of evidence.”

That before the issuance of the said Resolution by the Honorable Office, the Complainant filed a comment regarding the counter-affidavit filed by the Respondents. Obviously, such reply was not considered in view of the issuance of the assailed resolution on the same day that the Complainant was furnished a copy of the counter-affidavit. Hence the Complainant has fifteen (15) days

within which to file a motion for reconsideration or an appeal.

That on March 30, 2015, the Honorable Office issued a resolution denying the motion for reconsideration solely by reason of lack of verification as required under the Revised Manual for Prosecutors. The said resolution was received by the Complainant on May ___, 2015.

That the complaints filed before the Honorable Office must be resolved on merits rather than technicalities if substantial justice is to be served.

GROUNDS 2. Herein Complainant moves for a reconsideration of

the above-mentioned Resolution based on the following grounds:

I. THE HONORABLE OFFICE ERRED IN NOT FINDING

THAT THE ASSAILED ACTS OF THE RESPONDENTs CONSTITUTED THE CRIME OF QUALIFIED THEFT.

II.THE HONORABLE OFFICE ERRED WHEN IT

DISMISSED THE INSTANT CASE INVOLVING THE SAME PARTIES AND FOR THE SAME CAUSE AND FOR INSUFFICIENCY OF EVIDENCE.

III.THE HONORABLE OFFICE DENIED THE

COMPLAINANT OF DUE PROCESS WHEN IT ISSUED A RESOLUTION ON THE SAME DAY THAT IT FURNISHED COMPLAINANT A COPY OF THE COUNTER AFFIDAVIT OF THE RESPONDENTS.

IV.THE HONORABLE OFFICE GRAVELY ERRED

WHEN IT DEALTWITH EVIDENTIARY MATTERS IN RESOLVING THE COMPLAINT.

V. THE HONORABLE OFFICE ERRED WHEN IT

DENIED THE MOTION FOR RECONSIDERATION BASED ON TECHNICALITIES.

ARGUMENTS/ DISCUSSIONSI.

Anent the first issue, the respondents should be indicted for qualified theft in view of the presence of all of the elements of the felony. The elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are as follows: (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.People v. Sison, G.R. No. 123183, January 19, 2000, 322 SCRA 345, 363-364.Theft becomes qualified when any of the following circumstances under Article 310 (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. People v. Sison, supra note 10 at 364.

There is no cavil that all these elements are present in the instant case: 1. There was taking of personal property, the lumbers; 2. The lumbers taken by the herein respondents belonged to CONSOLACION DEYTO; 3. It was taken with intent to gain considering the fact that it was piled and transported to another place using a vehicle; 4. The taking was done without the consent of the legitimate owner; 5. The taking was done without the use of violence against or intimidation of persons or force upon things.

The claim given by the respondents through judicial affidavits constitute negative testimonies which cannot prevail over positive testimonies of the three (3) witnesses who actually saw them in the act of taking the lumbers without the consent and presence of the legitimate owner. The ruling by the High Court is instructive:

In the absence of corroborative evidence, the Court would not be prepared to accept the usual lame defense of denial over the straightforward and positive declaration of a witness since denials constitute self-serving negative

evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. Thus, in the case of contradictory declarations and statements, greater weight is generally given to positive testimonies than to mere denials. People v. Antonio, G.R. No. 107950, 17 June 1994, 233 SCRA 283, 299; Vda de Ramos  v. Court of Appeals, 171 Phil. 354, 364 (1978).

II.

As regards the second issue, the Honorable Office misconstrued the pendency of the civil case for unlawful detainer vis-à-vis the instant case as ground for dismissal. There is no cavil that it hinges its findings on the issue of the so-called prejudicial question. The term “prejudicial question” is found in Section 6, Rule 111 of the 2000 Revised Rules of Criminal Procedure, which states that:

“A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.”

As can be gleaned from above, a petition for suspension of the criminal action based on the existence of prejudicial question may be raised either during the preliminary investigation stage before the prosecutor conducting the same or during the pendency of a criminal trial where it is filed before the court hearing the case.

Jurisprudence has also defined a prejudicial question as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. (See Rojas vs. People, 57 SCRA 246; People vs. Aragon, 94 Phil. 357; Zapanta vs. Montessa, 4 SCRA 510 and Benitez vs. Concepcion, 2 SCRA 178)

The elements of a prejudicial questions are enumerated under Section 7, Rule 111 of the 2000 Revised Rules of Criminal Procedure, these are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised

in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. If both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. For example, in a criminal case for bigamy, the accused may raise the pendency of a civil suit for the declaration of nullity of his first marriage to defer the proceedings of the bigamy case.

Mere similarity of issues does not suffice to uphold the validity of a prejudical question. It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or there is no necessity _that the civil case be determined first before taking up the criminal case,_ therefore, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other.

It must be remembered however, that a prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit.

Certainly, the pendency of unlawful detainer case does not affect the institution of a criminal case for qualified theft. This is so because the issue involved in unlawful detainer is who has better right to possess between the parties. On the other hand, qualified theft is a criminal offense for taking personal property without the consent of the owner under qualifying circumstances. The rulings of the High Tribunal are instructive:

“An action for unlawful detainer exists when a person unlawfully withholds possession of any land or building against or from a

lessor, vendor, vendee or other persons, after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied.”Racaza v. Gozum, 523 Phil. 694, 707 (2006).“The only issue to be resolved in an unlawful detainer   case is physical or material possession of the property involved, independent of any claim of ownership by any of the parties involved.” Mendoza v. Court of Appeals, 492 Phil. 261, 265 (2005).“Thus, when the relationship of lessor and lessee is established in an unlawful detainer case, any attempt of the parties to inject the question of ownership into the case is futile, except insofar as it might throw light on the right of possession.”Eastern Shipping Lines, Inc. v. Court of Appeals, 424 Phil. 544, 554 (2002), (Underscoring ours).

III.  The Resolution rendered by the Honorable Office on the same day that the Complainant was furnished a copy of the Respondents’ counter-affidavit through mail offends the broad principle of due process. It is fully aware of the existing predicaments suffered by mailing system in the Philippines. This is notwithstanding the fact that the Complainant received a copy of the said counter-affidavit only on February 5, 2015. Ergo, we must subscribe to the persuasiveness of the decisions of the Supreme Court in a catena of cases:

 The assailed decision of the CA acquitting the respondent without giving the Solicitor General the chance to file his comment on the petition for review clearly deprived the State of its right to refute the material allegations of the said petition filed before the CA. (People vs. Duca, G.R. No. 171175, October 30, 2009)The said decision is, therefore, a nullity.  In Dimatulac v. Villon, G.R. No. 127107, October 12, 1998, 297 SCRA 679, we held: 

            Indeed, for justice to prevail the scales must balance; justice is not to be dispensed for the accused alone.  The interests of society and the offended parties which have been wronged must be equally considered.  Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice; for, to the society offended and the party wronged, it could also mean injustice.  Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other,Id. at 714.

It must be noted that the Complainant has filed a reply to refute the inky and unsubstantial matters raised by the respondents before the receipt of the Resolution from the Honorable Office. By clear disregard of the right of the

complainant to due process, the controversial Resolution must be assailed as wholly infirm. “It must be remembered that bare allegations unsubstantiated by evidence, are not equivalent to proof.”( Domingo vs. Robles, 453 SCRA 812, March 18, 2005) (underscoring ours)

“Basic is the rule that mere allegation is not evidence and is not equivalent to proof”. Charges based on suspicion and speculation likewise cannot be given credence. A complainant cannot rely on mere conjectures and suppositions (Sasing vs. Gelbolingo, A.M. No. P-12-3032, February 20, 2013).

“Evidence to be believable must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances” (People vs. Calumpang, 454 SCRA 719 [2005].

IV.

The Honorable office gravely erred when it dealt with evidentiary matters in resolving the complaint. It went beyond its duties when it considered trivial matters which are evidentiary in nature. The rulings of the High Court are instructive:In the conduct of preliminary investigation, the prosecutor does not decide whether there is evidence beyond reasonable doubt of the guilt of the respondent. A prosecutor merely determines the existence of probable cause, and to file the corresponding information if he finds it to be so (De Chavez vs. Ombudsman, G.R. Nos. 168830-31, February 6, 2007). Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence to justify a conviction (Manebo vs. Acosta, G.R. no. 169554, October 28, 2009), (Underscoring ours).

The purpose of preliminary investigation is to determine whether a) a crime has been committed; and (b) there is

probable cause to believe that the accused is guilty thereof (Manebo vs. Acosta, G.R. no. 169554, October 28, 2009).

However the ultimate purpose of preliminary investigation ‘is to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from open and public accusation of a crime, from the trouble, expenses and useless and expensive prosecutions” (Sales vs. Sandiganbayan, G.R. No. 143802, November 16, 2001).

Attached and referred to herewith are the following documents:

a. Special Power of Attorney issued in its favor by the children of Consolacion Deyto.

b. Confirmation of Absolute Sale c. Other documents attached in Reply

Wherefore, premises considered, we beseech the Honorable Prosecutor to reconsider the above stated Resolution.

Other reliefs which are just and equitable are also prayed for.

City of Sorsogon, May 12, 2015.

ATTY. JOEL E. FULGUERASCounsel for the Complainant

Kasanggayahan Village, Capitol Compound, Sorsogon City

C.P. No. 09088119664PTR No.14526

31 /1/8/2016 / SORSOGON CITYIBP NO. 928303/1/6/2015 / Sorsogon

ROLL NO. 63054Admitted to the BAR: May 7, 2014MCLE Compliance No. V-0006083

VERIFICATION AND CERTIFICATION

REPUBLIC OF THE PHILIPPINES)Province of Sorsogon ) S.S.City of Sorsogon )

I, SIMON DEYTO, of legal age and presently residing at Barangay San Isidro, Bacon, Sorsogon City, Philippines, after having been duly sworn to in accordance with law, hereby depose

and say: That I am the Complainant in the above-entitled case; That I have caused the preparation of the Motion for Reconsideration and I have read the same and know the contents thereof; That the allegations contained therein are true and correct of my own personal knowledge.

That I further certify that: (a)I have not theretofore commenced any other action or proceeding or filed any claim involving the same issues or matter in any court tribunal or quasi-judicial agency and, to the best of my knowledge, no such action or proceeding is pending herein; (b) If I should therefore learn that the same or similar action or proceeding has filed or pending the supreme court , the Court of Appeals, or any other tribunal or quasi-judicial agency, I undertake to report such fact within five (5) days there from to the court or agency wherein the original pleading and sworn certification contemplated herein have been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this _______________, at Sorsogon City, Philippines.

SIMON DEYTOAffiant

SUBSCRIBED AND SWORN to before me this___________________, at Sorsogon City, Philippines.

Doc. No. ______;Page No. ______;Book No.______;Series of 2015

Cc:ATTY. FERDINAND LAGUNACounsel for the RespondentsSan Juan Roro, Sorsogon City