THIRD DIVISION

G.R. No. 142039; May 27, 2004

MODESTO "Moody" MABUNGA, petitioner,

vs.

PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

CARPIO MORALES, J.:

The Court of Appeals having, by Decision of June 30, 1999,¹ affirmed that of the Regional Trial Court of Romblon² convicting appellant Modesto Mabunga of robbery with force upon things under Article 299 of the Revised Penal Code, he comes to this Court on a petition for review.

In the morning of October 2, 1994, employees of the Bureau of Fire Protection (BFP) including Davy Villaruel (Villaruel) discovered that the hasp of the door of the BFP office in Barangay Capaclan, Romblon, Romblon was destroyed, and that the only typewriter in their office, a "Triumph" bearing Serial Number 340118640, was missing.

From the testimonies of prosecution witnesses tricycle driver Sixto Bernardo (Bernardo), Diana Malay (Diana), Villaruel, Sylvia Silverio Comienzo (Sylvia), and SPO2 Eleazar Madali, the prosecution presented its case as follows:

Around 3:00 o’clock in the afternoon of October 15, 1994, as Diana was in front of her store in Capaclan, Romblon, Romblon waiting for a tricycle, she saw appellant, a dealer of marble slabs, who was carrying a box which bore the marking "HOPE" and tied with gray straw string, board a pedicab driven by Bernardo. Having heard from her husband Rodolfo Malay who works with the BFP that appellant was the prime suspect of the police for the "robbery" at the BFP, Diana immediately informed her husband of what she saw. She was thereupon instructed by her husband to follow appellant.³

As Diana noticed that the pedicab was heading for the pier, she proceeded on foot to the house of Villaruel⁴ whom she informed of what she had witnessed.

After the lapse of about 5 minutes,⁵ Villaruel, on board his scooter, proceeded to the pier. By that time appellant had reached the pier, alighted from Bernardo’s tricycle, and unloaded the "HOPE" box.

In the meantime, Diana contacted Chief of Police Major Ernesto Madrona at his house.⁶

Appellant, not long after alighting from the tricycle at the pier, reboarded the same tricycle⁷ driven by Bernardo, without the box, and headed for his house at Capaclan. Diana, in fact, saw him on board the tricycle on his way home.

Diana later boarded the tricycle of Bernardo after the latter brought home appellant, and repaired to the pier. There, by the gate, she saw Villaruel who confirmed to her that he had verified from Bernardo, whom he earlier saw by the same gate, that the latter indeed conveyed appellant to the pier, with a "HOPE" box.

Diana also learned from Villaruel that "he really saw the box brought by [appellant]." She thus returned on foot to the house of Major Madrona who instructed SPO2 Eleazar Madali and PO2 Eustaquio Rogero "to surreptitiously watch a box of Hope brand cigarettes placed under a bench inside the PPA passengers terminal owned by [appellant] and wait until somebody gets said box and load it aboard the vessel M/V Peñafrancia 8."⁸

On Villaruel’s entering the terminal⁹ he was told by Sylvia, the cashier on duty at the restaurant therein, that a man, whom she later identified to be appellant through a photograph shown to her that same day, entrusted the box to her, he telling her that it contained a damaged electric fan.¹⁰

Villaruel thereupon kept watch over the box, as SPO2 Madali and PO2 Rogero later did discreetly, until M/V Peñafrancia departed for Batangas at 8:00 p.m., with appellant on board the same. About an hour later, PPA officers Reynaldo Dianco and Leo Vedito Fontellera arrived at the terminal and the box was turned over by them to SPO2 Madali and PO2 Rogero. The box, when opened, contained the lost BFP typewriter.

On February 7, 1995, appellant was charged with robbery before the Regional Trial Court of Romblon, Romblon under an information reading:

That on or about the 1st day of October, 1994, at around 12:00 midnight, in [B]arangay Capaclan, municipality of Romblon, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent [to] gain, did then and there willfully, unlawfully and feloniously enter the Office of the Bureau of Fire Protection by forcibly breaking the door hasp of the main door and upon having gained entry therein, take, steal and carry away one (1) typewriter (Triumph brand) with Serial No. 340118640, valued at P5,894.00, Philippine currency, belonging to and owned by the government, without its consent, and to the damage and prejudice of the government in the aforestated amount.¹¹

On arraignment on February 21, 1995, appellant, with the assistance of counsel, pleaded "not guilty."¹² Thereafter, trial ensued.

Appellant interposed alibi with respect to the date and place of occurrence of the alleged robbery. While he admitted bringing to the pier on October 15, 1994 a box, he claimed, however, that it bore the marking "CHAMPION," not "HOPE." At the witness stand, he gave the following tale:

He left Romblon on September 24, 1994 and arrived in Manila the next day. After the lapse of 12 hours, he went to the Cubao station of the Batangas Laguna Tayabas Bus (BLTB) Company and boarded a bus bound for Matnog, Sorsogon. He reached Matnog on the afternoon of September 27, 1994 and stayed there overnight before proceeding to Allen, Samar which he reached on September 28, 1994. He then boarded a jeep bound for San Jose, Northern Samar where he stayed for one (1) hour, after which he proceeded to Calbayog City which he reached on September 29, 1994. He transferred to another jeep bound for Tacloban and arrived there on September 30, 1994. For a day he stayed in Tacloban to rest, after which he proceeded to Palo, Leyte to visit his "project." He arrived in Palo on October 1, 1994. The next day, he went to Tacloban City and purchased materials for polishing marble. He returned to Palo and supervised his marble "project" for a week. When the "project" was finished, he returned to Cebu on October 6, 1994 and the next day boarded the ferry "[Backwagon] Bay" for Romblon. He reached Romblon on October 9, 1994.¹³

In support of his alibi, he presented bus tickets and purchase receipts of materials, viz:

Exhibit "1" – BLTB ticket No. 60850, dated September 26, 1994, (Cubao to Matnog, Sorsogon)

Exhibit "2" – Bus ticket dated September 28, 1994 issued by E. Tabinas Enterprises to Moody Mabunga (Matnog, Sorsogon, to Allen, Samar).

Exhibit "3" – Invoice No. 18639 issued on October 2, 1993 by Terrazzo Construction and Marble Supply to Moody Mabunga.¹⁴

Appellant further claimed that on the afternoon of October 15, 1994, he, along with his son, boarded the pedicab of Bernardo to which they loaded a box marked "CHAMPION" containing marble novelties to be brought to Manila via Viva Penafrancia 8; on reaching the pier, he laid down the box at the gate of the PPA and stood beside it as he waited for the ship to dock; and when he later boarded the ship, he placed the box at the back of his cot.¹⁵

Finding appellant guilty beyond reasonable doubt of robbery, Branch 81 of the RTC Romblon sentenced him to suffer "an indeterminate penalty of from 4 years and 2 months of prison correccional, as minimum to 8 years and 1 day of prision mayor, as maximum, with the accessory penalties of the law, and to pay the costs."¹⁶

The Court of Appeals, in affirming the decision of the trial court, relied on Section 3(j) Rule 131 of the Revised Rules on Evidence which reads:

SEC. 3. Disputable presumptions. – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

x x x

(j) That a person in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him;

The appellate court having denied his motion for reconsideration,¹⁷ appellant lodged the present appeal, ascribing to it the following errors:

1. THE COURT OF APPEALS GRAVELY ERRED WHEN IT DISREGARDED THE UNIMPUGNED ALIBI OF THE ACCUSED, NOTWITHSTANDING THE ABSENCE OF POSITIVE IDENTIFICATION.

2. THE COURT OF APEALS GRAVELY ERRED WHEN IT ADMITTED IN EVIDENCE THE TYPEWRITER, WHICH WAS SEARCHED WITHOUT WARRANT AND IN THE ABSENCE OF THE ACCUSED.

3. THE COURT OF APPEALS GRAVELY ERRED WHEN IT PRESUMED THE ELEMENT OF INTENT TO GAIN, WHEN THE SUPPOSED ACT OF THE ACCUSED IN LEAVING THE BOX TO A STRANGER AND NEVER COMING BACK TO CLAIM IT NEGATED THE NOTION OF ANIMUS LUCRANDI.¹⁸ (Underscoring supplied)

The appeal is impressed with merit.

While courts have consistently looked upon alibi with suspicion not only because it is inherently weak and unreliable as a defense, but because it can easily be fabricated,¹⁹ the basic rule is for the prosecution, upon which lies the onus, to establish all the elements of a crime to thereby hold him guilty beyond reasonable doubt. Such burden does not shift as it remains with the prosecution. Tasked with the burden of persuasion, the prosecution must thus rely on the strength of its evidence and not on the weakness of the defense.²⁰

Admittedly, the evidence for the prosecution is circumstantial. The alleged robbery was discovered when the employees of the BFP reported for work on October 2, 1994 and noticed that the hasp of the office door was broken and the typewriter was missing.

On the sole basis of the presumption laid down under above-quoted Section 3(j) of Rule 131 of the Revised Rules on Evidence, the appellate court affirmed the conviction of appellant.

A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action.²¹ It is an "inference as to the existence of a fact not actually known, arising from its usual connection with another which is known, or a conjecture based on past experience as to what course of human affairs ordinarily take."²²

A presumption has the effect of shifting the burden of proof to the party who would be disadvantaged by a finding of the presumed fact. The presumption controls decision on the presumed fact unless there is counterproof that the presumed fact is not so.²³

In criminal cases, however, presumptions should be taken with caution especially in light of serious concerns that they might water down the requirement of proof beyond reasonable doubt. As special considerations must be given to the right of the accused to be presumed innocent, there should be limits on the use of presumptions against an accused.

Although possession of stolen property within a limited time from the commission of the theft or robbery is not in itself a crime, it being possible to possess the same and remain innocent, such possession may be sufficient for the formation of an inference that the possessor is the thief unless the evidence satisfactorily proves that the property was acquired by the accused by legal means.

How the presumption under Section 3(j) Rule 131 is to be understood, United States v. Catimbang²⁴ explains:

According to the modern view convictions in cases of this kind are not sustained upon a presumption of law as to the guilt of the accused. The conviction rests wholly upon an inference of fact as to the guilt of the accused. If as a matter of probability and reasoning based on the fact of possession of the stolen goods, taken in connection with other evidence, it may fairly be concluded beyond reasonable doubt that the accused is guilty of the theft, judgment or conviction may properly be entered. x x x

The inference of guilt is one of fact and rests upon the common experience of men. But the experience of men has taught them that an apparently guilty possession may be explained so as to rebut such an inference and an accused person may therefore put witness on the stand or go to the witness stand himself to explain his possession, and any reasonable explanation of his possession, inconsistent with his guilty connection with the commission of the crime, will rebut the inference as to his guilt which the prosecution seeks to have drawn from his guilty possession of the stolen goods.

It is in this sense that it is sometimes said that the unexplained possession of recently stolen goods will sustain a conviction of the crime of larceny.²⁵ (Emphasis and underscoring supplied)

Before an inference of guilt arising from possession of recently stolen goods can be made, however, the following basic facts need to be proven by the prosecution: (1) that the crime was committed; (2) that the crime was committed recently; (3) that the stolen property was found in the possession of the defendant; and (4) that the defendant is unable to explain his possession satisfactorily.²⁶

For purposes moreover of conclusively proving possession, the following considerations have to be emphasized: (1) the possession must be unexplained by any innocent origin; (2) the possession must be fairly recent; and (3) the possession must be exclusive.²⁷

Contrary to the findings of both the trial and appellate courts, the People failed to prove beyond reasonable doubt that appellant was caught in exclusive possession of the recently stolen good.

While possession need not mean actual physical control over the thing for it may include constructive possession, it is still necessary that for possession to be deemed constructive the accused knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person.²⁸

The case of U.S. v. Simbahan²⁹ cited by the appellate court has a different factual setting and is, therefore, inapplicable to the present case. In Simbahan, the accused, for a consideration of ₱50.00 pesos, disclosed to the owner of the missing carabao its precise location. There, this Court held: "The word possession as used above can not be limited to manual touch or personal custody. One who puts or deposits the stolen property in a place of concealment may be deemed to have such property in his possession. x x x All the facts and circumstances [including the absence of a satisfactory explanation of his possession] show conclusively that he had possession of said caraballa and fully justify his conviction."³⁰

The accused in Simbahan exercised exclusive dominion and control over the thing lost. Appellant in the present case did not.

The "HOPE" box was not concealed and anyone entering and leaving the PPA terminal had access to it, it having been placed just below one of the benches, around three meters from the cashier, Sylvia.

To assume that in a busy place, such as the PPA terminal, the "HOPE" box that was opened by the police authorities and found to contain the missing typewriter is the same box allegedly entrusted by appellant to the cashier is to form an inference which is, however, doubtful, more than six hours having elapsed from the time the box was allegedly left at around 3:00 o’clock in the afternoon until it was opened by the police authorities at around 9:00 o’clock in the evening after appellant had already boarded the ship.

A presumption cannot be founded on another presumption. It cannot thus be concluded that from the time the box was left under the bench, appellant was still in constructive possession thereof, the exercise of exclusive dominion or control being absent.

Adding serious doubt to the prosecution’s claim is that what was allegedly seen being carried by appellant and entrusted to the cashier was not the stolen typewriter but merely a "HOPE" box.

A review of the transcript of stenographic notes in fact shows that there are flaws in the prosecution’s theory as well as inconsistencies in the prosecution witnesses’ testimonies that do not warrant appellant’s conviction.

Why appellant was considered a suspect by the police, no explanation has been proferred. The records, however, indicate that appellant had previously been indicted before the Municipal Trial Court for theft.³¹ On that basis alone, it is non sequitor to point to him as a suspect.

At all events, apart from appellant’s supposed possession of the "HOPE" box on October 15, 1994, no other evidence was adduced by the prosecution linking him to the robbery. The teaching of Askew v. United States³² must thus be heeded:

We have heretofore adverted to the possession of the instruments or of the fruits of a crime as affording ground to presume the guilt of the possessor; but on this subject no certain rule can be laid down of universal application; the presumption being not conclusive but disputable, and therefore to be dealt with by the jury alone, as a mere inference of fact. Its force and value will depend on several considerations. In the first place, if the fact of possession stands alone, wholly unconnected with any other circumstances, its value or persuasive power is very slight; for the real criminal may have artfully placed the article in the possession or upon the premises of an innocent person, the better to conceal his own guilt. It will be necessary, therefore, for the prosecutor to add the proof of other circumstances indicative of guilt, in order to render the naked possession of the thing available towards a conviction.³³ (Emphasis and underscoring supplied)

That the fact of possession alone, wholly unconnected with any other circumstances, cannot be relied with certititude to convict one with robbery is echoed in People v. Geron:³⁴

At any rate, the mere possession by the accused of items allegedly stolen, without more, cannot conduce to a single conclusion that robbery indeed took place or at least was the primary motive for the killings. In the absence of positive and indubitable evidence showing unlawful taking by the accused by means of violence against or intimidation of persons, the prosecution cannot rely with certitude on the fact of possession alone. The Court’s application of the presumption that a person found in possession of the personal effects belonging to the person robbed and killed is considered the author of the aggression, the death of the person, as well as the robbery committed, has been invariably limited to cases where such possession is either unexplained or that the proferred explanation is rendered implausible in view of independent evidence inconsistent thereto.³⁵ (Emphasis and underscoring supplied)

The appellate court ruled that since it was sufficiently established that appellant was in possession of the typewriter two weeks after it was stolen, he had the burden of proving that he was not the one responsible for the heist.³⁶ While a presumption imposes on a party against whom it is directed the burden of going forward with evidence to rebut such presumption, the burden of producing evidence of guilt does not extend to the burden of proving the accused’s innocence of the crime as the burden of persuasion does not shift and remains throughout the trial upon the prosecution.

Compounding doubts on the case for the prosecution is its witnesses’ differing versions on how and where the box was opened, a fact necessarily important in determining whether its content was indeed the stolen typewriter.

On one hand, a member of the PNP, SPO2 Eleazar Madali, testified during the direct examination by Prosecutor Sy that the box was opened at the police station:

Q – And what time did the M/V P[e]ñafrancia 8 le[ave]?

A – About 8:00 o’clock in the evening.

Q – And what time was that when you entered the PPA terminal to see the carton?

A – May be 3:30 o’clock, more or less, the vessel has not arrive[d] yet.

Q – And also because the vessel has left and the carton [w]as not brought out, what did you do?

A – We coordinate[d] with the PPA about the box that was not taken and it was turned over to us and we brought it to the police station.

Q – Who was your companion in bringing the box to the police station?

A – SPO1 Rogero, our investigator Victor Miñano, Fireman Sim, Dave Villaruel then we proceeded to the guard of the Romblon Police Station.

Q – And what was done with the box in the police station?

A – When we arrived in the PNP Police Station we have the box opened before the guard and the content of the box was a typewriter.³⁷ (Underscoring supplied)

On the other hand, the cashier, Sylvia Silverio Comienzo, testified that the police authorities opened the box inside her small room in the terminal.

DIRECT EXAMINATION BY PROSECUTOR SY:

Q – The day in which you have identified him as Modesto Mabunga, [did he] retrieved (sic) that carton from you that same day or afternoon?

A – No, sir.

Q – Who got the carton?

A – The policemen, sir.

Q – And what did the policemen do when they got the carton?

A – They opened it, sir.

Q – If you could remember, who were those policemen who got and opened the carton?

A – Madrona, Eustaqio and Mike Villaruel.

Q – Where did they open that carton?

A – Inside the terminal because I have a small room there.³⁸ (Underscoring supplied)

On additional direct examination, Sylvia remained adamant in saying that the box was opened in her small room inside the terminal.

ADDITIONAL DIRECT EXAMINATION

BY PROSECUTOR SY:

Q – When the policemen as you said got this carton and opened it, where did the policemen precisely get the carton, from what place precisely?

A – Taken from under the bench.

COURT:

Q – Where this Moody placed it?

A – Yes, sir.

PROSECUTOR SY CONTINUING:

Q – Were you personally present when the policemen got the carton from under the bench where Moody placed it?

A – Yes, sir.

Q – And where did the policemen open the carton?

A – In our small room.

Q – Where you personally present when the policemen go the carton and opened it on that room?

A – Yes, sir.

Q – Were you personally present when the straw that was used in tying the carton was cut or untie or loosen by the policemen?

A – I was there.

COURT:

Q – Why were you there present?

A – Because I saw to it what was the content of that box and if it was really an electric fan.³⁹ (Underscoring supplied)

Without doubt, the trial court is in the best position to assess the credibility of witnesses firsthand and observe their demeanor, conduct and attitude under grilling examination. An examination of the records shows, however, that, as indicated by the trial judge’s following comments on prosecution witness Villaruel’s answers to the questions posed to him during his direct examination, the prosecution evidence leaves much to be desired.

COURT: Very familiar. This witness is a very typical witness. You are just waiting for Atty. Sy to finish his question for you to say what you have been in your mind regardless of the question but you will just continue what you have already in your mind without thinking about the question. But remember his question, when the question is asked it will appear in your mind, it should be the other way around, do you understand? You forget what is in your mind, concentrate on the question. You listen to the question. You are like a tape recorder. You just switch on and then you continue, no you wait for the question.⁴⁰

Then again, during the cross examination of the same witness, the trial court gave the following observation on his demeanor:

COURT: The statement of the Court that you are like a fish in outer space is more applicable to you. You are like a fish in outer space, meaning, you are a police science graduate, meaning, that your career is to be a policeman and a police officer, an officer of the law. You are now in the court of law, you should then feel comfortable in a court of law like a fish in the water you should be comfortable in a court of law because that is part of your career but the way we look at it you are like a lawyer who just graduated, took the bar and then become an office employee not practicing law in the courtroom so that when the lawyer comes to Court, he will not come to Court, he is afraid of the courtroom although he is a lawyer he is afraid of the courtroom.⁴¹ (Underscoring supplied)

Finally, logic, common knowledge and human experience teach that it is unlikely that a robber would represent himself to be the owner of a stuff which he knows contains stolen property and seek the help of a third person to look after it.

In fine, the life, liberty and property of a citizen may not be taken away on possibilities, conjectures or even, generally speaking, a bare probability.⁴²

At all events, appellant’s alibi, for which he submitted documentary evidence, has not been discredited by the prosecution.

WHEREFORE, the decision on review is hereby REVERSED and SET ASIDE and appellant, Modesto "Moody" Mabunga, is hereby ACQUITTED of the crime of robbery.

SO ORDERED.

Vitug, Sandoval-Gutierrez, and Corona, JJ., concur.

Footnotes

¹ Rollo at 46-49.

² Id. at 19-25.

³ TSN, June 19, 1995 at 4-5.

⁴ Id. at 5.

⁵ TSN, August 29, 1995 at 23.

⁶ TSN, June 19, 1995 at 6.

⁷ Id. at 20-21.

⁸ Exhibit "C," Records at 111.

⁹ TSN, August 29, 1995 at 7-8.

¹⁰ TSN, August 19, 1996 at 4-5.

¹¹ Records of the Regional Trial Court at 1.

¹² Id. at 13.

¹³ TSN, February 6, 1997 at 3-11.

¹⁴ Records at 146-148.

¹⁵ TSN, June 11, 1997 at 7-9.

¹⁶ Rollo at 19-25.

¹⁷ Id. at 79-80.

¹⁸ Id. at 13.

¹⁹ People v. Villamor, 373 SCRA 254 (2003) at 264.

²⁰ People v. Alvario, 275 SCRA 529 (1997) at 535.

²¹ Black’s Law Dictionary (6th ed. 1990) at 1185.

²² Martin v. Court of Appeals, 205 SCRA 591 (1992) at 595.

²³ A. Bautista, Basic Evidence, (2004) at 283 citing Mueller and Kirkpatrick, §3.4.

²⁴ 35 Phil. 367 (1916).

²⁵ U.S. v. Catimbang, supra at 371-372.

²⁶ R.J. Francisco, Evidence, (3rd ed., 1996) at 419-420.

²⁷ 9 J.H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, (3rd ed., 1940) sec. 2513 at 422.

²⁸ Black’s Law Dictionary at 1163.

²⁹ 19 Phil. 123 (1911).

³⁰ United States v. Simbahan, 19 Phil. 123 (1911) at 125.

³¹ TSN, December 6, 1995 at 25.

³² 2 Okl.Cr. 155 (1900).

³³ Askew v. United States, 2 Okl.Cr. 155 at 159 (1900) citing Greenleaf, §31.

³⁴ 281 SCRA 36 (1997).

³⁵ People v. Geron, 281 SCRA 36 (1997) at 47-48.

³⁶ Rollo at 48.

³⁷ TSN, December 6, 1995 at 8-9.

³⁸ TSN, August 19, 1996 at 6.

³⁹ Id. at 17-18.

⁴⁰ TSN, August 29, 1995 at 7.

⁴¹ Id. at 19-20.

⁴² A. Bautista, Basic Evidence (2004) at 297, citing New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948 (1938).

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