Tuesday, October 20, 2015

TOTO'S BRIEF VS GSIS ON MANANSALA MURAL

TOTO'S BRIEF VS GSIS 
ON MANANSALA MURAL


Aside from the news value, I am posting here the Appellees' Brief I wrote for the then officers of National Press Club of the Philippines against the Appellant's Brief filed by the Government Service Insurance System (GSIS).

I raised the issue of lack of personality of the GSIS as a private complainant to raise an appeal from a criminal proceeding where the case is terminated without the express consent of the accused, the issue of double jeopardy, and the issue of whether a wall painting on a lawanit canvas can be considered as a movable property or an immovable part of the building.

The 25-page Appellees' Brief is posted below:

xxxxxx


Republic of the Philippines
Court of Appeals
Manila




PEOPLE OF THE PHILIPPINES,
Plaintiff,               

GOVERNMENT SERVICE INSURANCE
SYSTEM (GSIS),
Private Complainant-Appellant,


-versus-                                     CA-G.R. CV No. 104072
                                                                      Criminal Case No. 08-262561

ROY MABASA, BENNY D. ANTIPORDA,
LOUIE LOGARTA, AMOR P. VIRATA, JUN
COBARRUBIAS, JERRY S. YAP, ALVIN S.
FELICIANO, JOEY G. VENANCIO, WILLIAM
B. DEPASUPIL, DENNIS F. FETALINO,
JOEL SY EGCO, CONRAD I. GENEROSO,
ROLLY GONZALO and SAMUEL L. JULIAN,
Accused-Appellees.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x




Appellees’ Brief



          As a rule, only the Solicitor General can prosecute an appeal from the dismissal of a criminal case and the private complainant has no personality.  This is one reason why the case is entitled “PEOPLE OF THE PHILIPPINES VS ROY MABASA, ET AL.”


          Next, when a criminal case is terminated without the participation of the accused and the accused was already arraigned, the same dismissal of the case constitutes as a termination of the case upon the merits and the same dismissal of the criminal case can no longer be appealed to the higher court.


          Upon these two notes this Appellees’ Brief is being filed.




The Parties



          In this case that originated from the RTC of Manila, Branch 22, as a criminal case, the plaintiff has been the PEOPLE OF THE PHILIPPINES and the accused are the persons named above.


          Government Service Insurance System (GSIS) was only a private complainant and can never be deemed to be a party in any criminal case.  Its right was limited only to being a private complainant.




GSIS has no personality

         

          In David Tiu vs CA and Edgardo Postanes, GR No. 162370, April 21, 2009, the Supreme Court stated clearly that for every criminal proceeding it is only the Office of the Solicitor General that has the personality to appeal or raise any issue from criminal cases.


          Said the Court in Tiu:


              At the outset, the Court finds that the petition is defective since it was not filed by the Solicitor General. Instead, it was filed by Tiu, the private complainant in Criminal Case No. 96-413, through his counsel. Settled is the rule that only the Solicitor General may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or State in criminal proceedings before this Court and the Court of Appeals.  Tiu, the offended party in Criminal Case No. 96-413 is without legal personality to appeal the decision of the Court of Appeals before this Court.   Nothing shows that the Office of the Solicitor General represents the People in this appeal before this Court. On this ground alone, the petition must fail.


          As such, it is clear that the only party that can bring any issue from the RTC to the Court of Appeals is only the Office of the Solicitor General.


          The GSIS does not have any party to represent the People of the Philippines.


          Upon this ground alone, the instant appeal must be dismissed outright.


          In another case, Bangayan vs Bangayan, GR No. 172777, the Supreme Court reiterated the primacy of the state of affairs that only the Office of the Solicitor General can be a party to challenge a decision or an order issued by a court in a criminal proceeding, to wit:


              Petitioner Resally argues that Sally Go had no personality to file the petition for certiorari before the CA because the case against them (Resally and Benjamin, Jr.) is criminal in nature. It being so, only the OSG or the OCP of Caloocan may question the RTC Order dismissing the case against them.   Respondents intervention as the offended party in the prosecution of the criminal case is only limited to the enforcement of the civil liability.


Sally Go counters that as the offended party, she has an interest in the maintenance of the criminal prosecution against petitioners and quotes Merciales v. Court of Appeals to support her position: The right of offended parties to appeal an order of the trial court which deprives them of due process has always been recognized, the only limitation being that they cannot appeal any adverse ruling if to do so would place the accused in double jeopardy. Moreover, the OSG and the OCP had impliedly consented to the filing of the petition before the CA because they did not interpose any objection.


Second, the acquittal of the accused was done without due process and was declared null and void because of the nonfeasance on the part of the public prosecutor and the trial court.[31] There being no valid acquittal, the accused therein could not invoke the protection of double jeopardy.


In this case, however, neither the Solicitor General nor the City Prosecutor of Caloocan City joined the cause of Sally Go, much less consented to the filing of a petition for certiorari with the appellate court. Furthermore, she cannot claim to have been denied due process because the records show that the trial court heard all the evidence against the accused and that the prosecution had formally offered the evidence before the court granted the demurrer to evidence. Thus, the petitioners acquittal was valid, entitling them to invoke their right against double jeopardy.


          In this case, neither the OSG nor the City Prosecutor of Manila joined the cause of the GSIS.


          It is a hornbook rule that the only interest that can be said that the GSIS has a stake in here is civil damages.


          Unfortunate for the GSIS, it did not invoke civil damages so that its appeal must now be dismissed.


          Hence, by this alone the instant case must be dismissed.




Double Jeopardy Has Attached



Even assuming that the GSIS has the personality to bring up this appeal, still it cannot succeed because the act of doing so is prohibited by the double jeopardy principle.


          This is so because all the accused here were already arraigned and pleaded not guilty to a criminal information that was valid in form and substance.  Additionally, the RTC court had jurisdiction over the subject matter of the case.   Further, the accused-appellees did not give consent to the dismissal of the case by means of the motion to withdraw information filed by the public prosecutor, which motion was granted by the RTC in the presumed exclusive exercise of its powers reiterated in the Crespo vs Mogul doctrine.


          In the same vein, in Tiu, the Supreme Court discussed the prohibition to appeal from criminal proceedings where the case was dismissed without the consent of the accused, to wit:


The elements of double jeopardy are (1) the complaint or information was sufficient in form and substance to sustain a conviction; (2) the court had jurisdiction; (3) the accused had been arraigned and had pleaded; and (4) the accused was convicted or acquitted or the case was dismissed without his express consent.


These elements are present here: (1) the Information filed in Criminal Case No. 96-413 against Postanes was sufficient in form and substance to sustain a conviction; (2) the MeTC had jurisdiction over Criminal Case No. 96-413; (3) Postanes was arraigned and entered a non-guilty plea;[22] and (4) the MeTC dismissed Criminal Case No. 96-413 on the ground of insufficiency of evidence amounting to an acquittal from which no appeal can be had.   Clearly, for this Court to grant the petition and order the MeTC to reconsider its decision, just what the RTC ordered the MeTC to do, is to transgress the Constitutional proscription not to put any person twice xxx in jeopardy of punishment for the same offense.    Further, as found by the Court of Appeals, there is no showing that the prosecution or the State was denied of due process resulting in loss or lack of jurisdiction on the part of the MeTC, which would have allowed an appeal by the prosecution from the order of dismissal of the criminal case.


          In the same Bangayan vs Bangayan case, the Supreme Court once again elaborated on the principle of double jeopardy, to wit:


Petitioners contend that the December 3, 2003 Order of dismissal issued by the RTC on the ground of insufficiency of evidence is a judgment of acquittal. The prosecution is, thus, barred from appealing the RTC Order because to allow such an appeal would violate petitioners right against double jeopardy.   insist that the CA erred in ordering the remand of the case to the lower court for further proceedings because it disregarded the constitutional proscription on the prosecution of the accused for the same offense.


On the other hand, Sally Go counters that the petitioners cannot invoke their right against double jeopardy because the RTC decision acquitting them was issued with grave abuse of discretion, rendering the same null and void.


A demurrer to evidence is filed after the prosecution has rested its case and the trial court is required to evaluate whether the evidence presented by the prosecution is sufficient enough to warrant the conviction of the accused beyond reasonable doubt. If the court finds that the evidence is not sufficient and grants the demurrer to evidence, such dismissal of the case is one on the merits, which is equivalent to the acquittal of the accused.   Well-established is the rule that the Court cannot review an order granting the demurrer to evidence and acquitting the accused on the ground of insufficiency of evidence because to do so will place the accused in double jeopardy.

The right of the accused against double jeopardy is protected by no less than the Bill of Rights (Article III) contained in the 1987 Constitution, to wit:


Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.


Double jeopardy attaches if the following elements are present: (1) a valid complaint or information; (2) a court of competent jurisdiction; (3) the defendant had pleaded to the charge; and (4) the defendant was acquitted, or convicted or the case against him was dismissed or otherwise terminated without his express consent.   However, jurisprudence allows for certain exceptions when the dismissal is considered final even if it was made on motion of the accused, to wit:


(1) Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution has rested, which has the effect of a judgment on the merits and operates as an acquittal.


(2) Where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute.


The only instance when the accused can be barred from invoking his right against double jeopardy is when it can be demonstrated that the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was not allowed the opportunity to make its case against the accused or where the trial was a sham.   For instance, there is no double jeopardy (1) where the trial court prematurely terminated the presentation of the prosecution's evidence and forthwith dismissed the information for insufficiency of evidence;  and (2) where the case was dismissed at a time when the case was not ready for trial and adjudication.


In this case, all four elements of double jeopardy are doubtless present. A valid information for the crime of bigamy was filed against the petitioners, resulting in the institution of a criminal case against them before the proper court. They pleaded not guilty to the charges against them and subsequently, the case was dismissed after the prosecution had rested its case. Therefore, the CA erred in reversing the trial courts order dismissing the case against the petitioners because it placed them in double jeopardy.
           

Accused arraigned on information
valid in form and substance


All the accused here were arraigned all of them pleaded not guilty.


          As proofs that the accused were all arraigned and pleaded not guilty, the accused refer to Certificates of Arraignment found in Rollo No. 210 up to No. 223 of the records of the case.


          Additionally, the information here involved was valid because the GSIS did not question its validity in its Appellant’s Brief.


          What is important is that the information is valid. 


The question of substance that it should be qualified theft or not is immaterial.    It is because the facts recited in the information never changed even if it were to be considered qualified theft or estafa.


          Anyway, while there was a condition in the arraignment that the parties can file a petition for review before the Department of Justice, that condition does not affect the form and substance of the information that was read on the accused-appellees.


          After all, the condition was limited only to the condition that the information can be amended by the outcome of the petition for review and nothing more and nothing less.



RTC of Manila is of
competent jurisdiction


          As to the venue, it was correctly filed before the RTC of Manila because the challenged incident occurred in Manila.


          As to the subject matter, it was estafa that was filed and the amount was Ten Million Pesos (10,000,000) and it is within the jurisdiction of the RTC.


          As to the jurisdiction over the person of the defendant, it has been validly acquired by the RTC of Manila after the accused-appellees voluntarily surrendered and agreed to be read with the information during the arraignment.


          As to the jurisdiction over the person of the plaintiff, the act of filing alone by the prosecutor’s office binds the jurisdiction over the person of the People of the Philippines to the said case.



Case was terminated without
express consent of the accused


          It is undisputed that the accused-appellees did not give their express consent in the termination of the case.


It is undisputed that it was the People of the Philippines through the prosecutor that filed the motion for the withdrawal of the information.


So that it is very clear that the accused-appellees did no consent to the withdrawal of the information that caused the termination of the case.



Substance of the Case Favors the Appellees



          Even if we were to gloss over the great wall of personality to commence the appeal and double jeopardy, the substance itself of the case favors the accused-appellees overwhelmingly.


As to the decision of
RTC granting withdrawal


          That act of the RTC granting the withdrawal of the information was in accordance with the doctrine of Crespo vs Mogul where it is pronounced that the discretion to determine judicial probable cause is lodged in the Court alone.


          Thus, if this Court allowed the withdrawal of information as contained in the motion to withdraw information filed by the Office of the City Prosecutor, it was not a decision alone of the public prosecutor.   It was a decision of this Honorable Court.


          The private prosecutors are always under the direction and control of the public prosecutor.   The private prosecutors cannot impose their will on the public prosecutors.  


Given this, if the public prosecutor has already made a decision not to prosecute, it is understood that it is a decision on the merit of the case: that there is no probable cause for either estafa or qualified theft.


So that in truth, the private prosecutor cannot even file any motion, much less a motion for reconsideration, without the approval of the public prosecutor. 


And if it is to be strict, the instant motion for reconsideration must not be given due course because it has no approval of the public prosecutor.


Nevertheless, whatever right is left with the private prosecutors here because the public prosecutor has already decided to throw out its cause, rest assured that the accused respect it.


At any rate, it is preposterous for the complainant GSIS to argue that the criminal information filed in this case cannot be withdrawn on the basis of the resolution or judgment in another case that has yet to attain finality.


First, the GSIS must know that the filing by the prosecutor of criminal information does not necessarily follow that it cannot be dismissed without trial. 


It can be dismissed outright by the Court’s exercise of the power to determine probable cause for the purpose of accepting the case for trial or not.  


If the Court finds there is no sufficient evidence for the case to stand ground during the trial, it may dismiss the case outright because proceeding with it will only waste the time of the Court.  


The Court cannot be made to guess whether the prosecution still has evidence not submitted for the purpose of determining probable cause.  


The Court may even motu proprio dismiss the case for lack of jurisdiction or its allegations of facts and circumstances do not confer jurisdiction on the Court.


Ergo, it is erroneous to say that the only way to dispose of the case after criminal information is filed is by means of trial only.


Perhaps, the GSIS forgot that the withdrawal of this information by the public prosecutor is premised on the order of the Department of Justice to withdraw the same. 


So that even without the resolution in another case, the public prosecutor has no other option but to obey the order of the boss, that is the DOJ.


And in this case, the Court agreed with the public prosecutor.


And certainly, even without that resolution or judgment in another case the same conclusion will be arrived at: that this Court has no more option but to approve the withdrawal motion because the Court is actually confronted by the set of facts presented by the GSIS that clearly shows no probable cause for either estafa or qualified theft.


Even the Supreme Court denied due course to the petition of the GSIS seeking to reverse the decision of the Department of Justice ordering the withdrawal of information.


On ownership of mural


Lest the GSIS must know the substance of the criminal case at hand: IT DOES NOT MATTER WHO OWNED THE MURAL.  


What matters most is that THERE IS NO PROBABLE CAUSE THAT THE ACCUSED HERE COMMITTED A CRIME OF ESTAFA OR QUALIFIED THEFT.


Be it noted that mere honest belief by the accused that he appropriated a thing because he genuinely thought he owned it is sufficient to dismiss a case for theft or estafa.


And it is also very clear, assuming for the sake of argument that the NPC did not own the Vicente Manansala mural, that the circumstances are replete to cause the accused as officers of the Club to believe that the mural belonged to the organization.  


For one, the theme of the wall painting is undisputedly press freedom. 


Second, the nature of the canvas is one that was removed without causing destruction to the building it was attached or destruction to the canvas itself.  


The same mural was drawn during the 1950s by the officials then of NPC and all the accused were not yet born that time to personally know whether that painting was intended to be attached permanently to the building.   


The organization called National Press Club had been the one in possession of the painting and the GSIS had never had a single minute chance to possess the same artwork.   


Third, the principle of evidence says that he who possesses a personal property is presumed to be the owner makes NPC the presumed owner to which the accused as officials of NPC were entitled to presume.  


Other than the plain claim that GSIS must have owned the mural because it was drawn on lawanit boards as the canvas, GSIS has no evidence of ownership to that masterpiece.  


In short, the accused were all enjoying the presumption of regularity of the performance of their affairs when they voted for the exercise of a corporate act to sell the mural.


And due to the failure of the GSIS to overturn this clear presumption of ownership of the mural to the favor of NPC, there is no other way now to say that the accused knew before selling the mural that NPC did not own it.


Fourth, the GSIS is already estopped in claiming that the mural is not a personal property and must be a part of the NPC building.  


This is because it even filed a complaint for replevin against the NPC by treating the mural as a personal property.


Fifth, mere good faith belief of ownership is sufficient to acquit or negate the existence of theft.


Sixth, the issue of ownership over the mural was resolved by the Court of Appeals in two cases.


In the first CA case, the decision penned by Justice Priscilla J. Baltazar-Padilla cannot be any clearer, when she said:


The arguments (of the GSIS) fail to persuade.


In resolving whether or not there is probable cause, respondent Agra is not precluded to bank on the ruling of the trial court in Civil Case No. 07-1002-CFM as the same involved the issue of ownership of the property although the same was rendered through a summary judgment. Whether the lower court’s decision proceeds from a full-blown trial or a summary judgment is of no moment.  How much weight is to be given to it in determining probable cause lies within the judgment and discretion of respondent Agra as Acting Justice Secretary.

xxx          xxx          xxx

…This Court has adopted a policy of non-interference in the conduct of preliminary investigations and leaves to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of information against the supposed offender.  Consistent with this policy, courts do not reverse the Secretary of Justice’s findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion.

In the instant case, petitioner GSIS was not able to convince US to deviate from the general rule of non-interference.

xxx          xxx          xxx

It is elementary rule that one cannot be charged of stealing a property which belongs to him in ownership. The Omnibus Order of the trial court, while it has not yet attained finality, has cast serious doubt on petitioner GSIS’ claim of ownership of the subject mural.  The decretal portion of the Omnibus Order provides –

“WHEREFORE, premises considered, the Order as well the Joint Order both dated December 2, 2008 of this Court are hereby reconsidered and set aside, and defendant NPCP Motion for Summary Judgment is hereby Granted and ordering the plaintiff GSIS to execute an instrument donating, transferring, conveying or ceding the property covered by transfer certificate of title No. 165236 of the Registry of Deeds of Manila, together with all the improvement existing thereon to defendant National Press Club Philippines, free from all lien and encumbrances and the case against all defendants is hereby Dismissed. No pronouncement as to damages and cost of suit.

SO ORDERED.”

The existence of the second element of Qualified Theft (the said property belongs to another) as aforementioned being doubtful, the Acting Justice Secretary cannot be faulted for reversing his earlier Resolution.

Moreover, even if the said Omnibus Order of the lower court is not considered, WE still found the issuance of the questioned Resolution to be in order.

In claiming ownership over the mural, petitioner GSIS presupposes that the said property is an immovable property inasmuch as it was designed with the aim to permanently affix it to the NPC Building. Accordingly, when petitioner GSIS obtained ownership of the said building in 1976, it likewise acquired the mural apparently invoking paragraph 4 of Article 415 of the Civil Code which states, viz –

“Art. 415. The following are immovable property:
xxx
(4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements;
xxx

For this reason, petitioner GSIS contends that private respondents should be held liable for Qualified Theft and Violation of Anti-Fencing Law when they took the mural without petitioner GSIS’ consent and sold the same to respondent Alcantara.

The arguments failed to persuade US.

In as much as it is admitted that the mural is painted on lawanit boards attached to the partition wall made of lumber framings and plywood and that said artwork was effectively removed and transported by respondents without damaging the wall to which it was attached, obviously, the mural is a personal property.  These facts evinced lack of intent to attach the mural permanently to the building.

Article 416 of the Civil Code provides, among others, that “In general, all things which can be transported from place to place without impairment of the real property to which they are fixed are deemed to be personal property.” Worth noting also is the fact that the action instituted by petitioner GSIS below is one for recovery of possession of personal property with prayer for a writ of replevin.

This is a stark admission on the part of GSIS that the subject mural is a personal property.  Such clearly constitutes a judicial admission that is binding on it.  GSIS is now precluded from claiming otherwise.

The foregoing considered, even if WE concede that petitioner GSIS owns the lot and the NPC building, such ownership does not include the mural.  Stated differently, the mural remains to be owned by the NPC.

Clearly, petitioner GSIS never became the owner of the subject painting when it bought the NPC building as well as the land on which it stood. Ergo, petitioner GSIS cannot charge private respondents for Qualified Theft and Violation of Anti-Fencing Law for selling the subject property.

WHEREFORE, premises considered, the instant petition is DENIED and the impugned Resolution is UPHELD.

SO ORDERED.


         
          In another CA case, “Government Service Insurance System (GSIS) vs Hon. Jesus B. Mupas, et al,” CA-G.R. SP No. 110274, the Court of Appeals declared that the National Press Club of the Philippines owned the Vicente Manansala mural, the very lis mota or the corpus delicti of the instant case.


          If the NPC owned the mural that is the SOLE issue here, then the accused being directors of the National Press Club of the Philippines did not commit the act of qualified theft or estafa when they passed a resolution selling the mural on behalf of the National Press Club.


          To enlighten further, let the ruling of the Court of Appeals, Seventh Division, on who owned the mural be quoted:


         In this case, however, the records are bereft of evidence that the mural was intended to be a permanent part or an integral part of the NPC building.  Notably, it is not painted on a concrete wall but merely on a lawanit wall which can be dismantled and transferred to another part of the NPC building or even to a new building, if in case the NPC opts to transfer its headquarters.


         In line with this, be it told that under Article 415, paragraph 3 of the Civil Code, if the object can be separated from the immovable without breaking the material or deterioration of the object, the object is not an immovable property.  Applying this logic in the case at bar, if the mural can be separated from the NPC building without causing damage to the mural, then the mural is a movable property.   Truly, NPC was able to remove the mural without damaging the same itself or the portion of the NPC building to which the mural was formerly attached.   Being unscathed, the mural even commanded a staggering price of Ten Million (Php10,000,000.00) Pesos when sold.


         Then, contrary to GSIS’ claim, the mural’s theme and title “Freedom of the Press” refer to its connection to the organization itself, the NPC, and not to the NPC building.  The mural derives its significance from the organization itself, the one who commissioned its painting, and not from the building.


         It is also interesting to note that GSIS’s complaint is for Recovery of Personal Property and Damages.  Indubitably, this is yet another damaging blow to GSIS’s stance as this partakes of an admission by GSIS that the mural is indeed a personal property.   GSIS further shot itself in the foot when it applied for a writ of replevin for said mural, when the same is, in fact, proper only in cases of delivery of personal property.   All these constitute judicial admissions which GSIS cannot now deny.


         Henceforth, it is without doubt that the mural is a movable property – a personal property which can be taken by NPC whether or not it owns the building.   Being the owner of the mural, NPC has all the rights to dispose of the same in whatever manner it desires.   NPC cannot be made liable, in any way, in exercising what is merely a proprietary act.


          As such, it is very clear is no more corpus delicti of either estafa or qualified theft to speak of.

         
          In another CA case, in the consolidated cases between the GSIS and the NPC, docketed CA-G.R. SP No. 109156 and CA-G.R. SP No. 109296, the Sixth Division of the Court of Appeals dismissed the petition of the GSIS seeking to reverse the decision of the Regional Trial Court of Manila, Branch 19, in deciding that the NPC cannot be evicted from the NPC Bldg.


          It is noted in these twin cases that the CA ruled against the wishes of the GSIS to evict the NPC from the building.


          Now, even if these CA decisions were relied on by this Honorable Court, the GSIS cannot complain that its right to due process was violated. 


This is because of the following: (a) it was the other party in all those CA cases and as such it knew it all along what had happened to these cases; (b) the motions, the memorandum, the supplemental memorandum and manifestations filed by the accused were all furnished the GSIS and with this circumstance it can immediately respond to these with gusto; and (c) the GSIS actually responded to all pleadings filed by the accused through counsels.


On amendment from
estafa to qualified theft


          First, there is no reason to amend when the case on its entirety was ordered withdrawn by the public prosecutor.


          For what purpose and how can it be amended when it was already totally withdrawn?
         

          Second, if the accused already were arraigned, amendment to cause prejudice on the accused cannot be done.  It is tantamount to a violation of the doctrine against double jeopardy.


          Nevertheless, it worthy to state that the information sought to be withdrawn by the prosecutor recited that the accused committed the crime of estafa by means of selling in December 2006 the Vicente Manansala mural installed on the partition wall in the fourth floor of National Press Club Building for the price of P10,000,000.00, that the accused abused the confidence of the owner of the Manansala mural that entrusted to them this mural, that the owner of the thing sold is the Government Service Insurance System (GSIS), and that the accused appropriated to themselves the proceeds thereof.


          The elements of estafa by abuse of confidence are: (a) damage; and (b) abuse of confidence.  These are expounded below:


1.             The existence of the DAMAGE on the part of the private complainant, which is the Government Service Insurance System (GSIS), arising from the sale of the Vicente Manansala Mural, the thing subject of this criminal action;

2.             The GSIS gave its CONFIDENCE or TRUST to the accused to keep the mural; and

3.             The accused ABUSED or BREACHED that confidence or trust by selling the said mural.


Now, being the owner of the mural at the time of the sale in December 2006, there is no damage to speak of that was caused on the GSIS.


          Even if the charge is qualified theft, still the same must fall.


          The elements of qualified theft are: (a) Taking of personal property; (b) That the said property belongs to another; (c) That the said taking be done with intent to gain; (d) That it be done without the owner's consent; (e) That it be accomplished without the use of violence or intimidation against persons, nor of force upon things; and (f) That it be done with grave abuse of confidence.


          Since it is clear that the NPC owned the mural at the time of the taking from an interior wall of the NPC Bldg. in the fourth floor, it necessarily follows that the GSIS has not owned the same wall painting or mural.


          And if the GSIS does not own the mural, IT HAS NO RIGHT TO WITHHOLD CONSENT FOR THE SALE OF THE SAME MURAL.


          Ergo, the cause of the GSIS is dead for all purposes!


In addition to the above discussion, it is wished to reiterate the points raised by the accused in their memorandum: the proofs that at least reasonable doubt cannot be removed.


The first proof is the irreversible fact that Letter of Instructions 500 was signed into law by then President Ferdinand E. Marcos on January 28, 1977, ordering the GSIS to “donate, transfer, convey or cede” to National Press Club of the Philippines that part of the parcel of land located at the corner of Magallanes Drive and Jones Bridge in Intramuros, Manila and which property was circumscribed by TCT No. 38690.  That part ordered to be donated is the one where the NPC Bldg. stands and that this is now covered by TCT No. 265236 after the GSIS subdivided the original size of the property into two; the other part where the PLDT Bldg. stands is now covered by TCT No. 265235.


The second proof is the fact that the said law, LOI No. 500, was published in the March 21, 1977 issue of the Official Gazette, that it became valid as a law fifteen (15) days after the publication thereof.


The third proof is the absence of proof that this law, LOI No. 500, has been invalidated until today.  As such, it is an incontrovertible proof that on the day fifteen (15) days after the publication of the law in 1977 the law already operated to vest upon the National Press Club of the Philippines the ownership over the subject property that is covered by TCT No. 265236.  The actual registration in the name of NPCP is a mere formality.


The fourth proof is the Omnibus Order of the Regional Trial Court of Pasay City, Branch 112, directing the implementation of LOI No. 500 by ordering the GSIS to “donate, transfer, convey or cede” to National Press Club of the Philippines that part of the property covered by TCT No. 265236.


Now, even if this is reversed later, what is important is: WHAT WAS THE BELIEF OF THE ACCUSED AT THE TIME THEY SIGNED THE BOARD RESOLUTION SELLING THE MURAL?


There is no evidence submitted that the GSIS owned the mural at the time of the signing of the board resolution selling the same.


Now, even if the Omnibus Order of the RTC of Pasay is reversed, what is important is at the time of the sale, it is very clear that the accused relied in good faith on LOI No. 500 that commands the GSIS to “donate, transfer, convey or cede” to NPCP that part of the property that is now covered by TCT No. 265236.  The GSIS cannot disprove this.


Be it noted that a mere belief in good faith as to ownership is enough to acquit the accused.  In Gaviola vs People, G.R. No. 163927, January 27, 2006, the Supreme Court said:

xxx “In all cases where one in good faith takes another’s property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken  the claim may in fact be.  And the same is true where the taking is on behalf of another, believed to be the true owner.  Still, if the claim is dishonest, a mere pretense, it will not protect the taker.”

            The gist of the offense is the intent to deprive another of his property in a chattel, either for gain or out of wantonness or malice to deprive another of his right in the thing taken.  This cannot be where the taker honestly believes the property is his own or that of another, and that he has a right to take possession of it for himself or for another, for the protection of the latter.


The fifth proof is that other than the fact that TCT No. 265236 is registered in the name of the GSIS, there is no proof submitted by the GSIS to show its ownership claim to the mural, particularly on the date of December 2006.


Now, it is very clear that the key issue, as to who owned the mural at the time of its sale in December 2006, points in favor of the accused, there is no other recourse but to dismiss the case for clear impossibility to arrive at conviction.


It is also very clear that the private complainant cannot have any proof to claim that at the time of the sale of the mural it did not belong to the NPCP that the accused represented in signing the board resolution selling the mural in December 2006.

         
ERGO, it is now very clear that there is really no probable cause for estafa or for qualified theft.

         
By the rule enjoined by Crespo vs Mogul, it is now proper for the Honorable Court to invoke its discretion to determine with finality whether the instant case be dismissed on clear lack of judicial probable cause.


          That is, notwithstanding the existence of the certiorari petition filed by the GSIS before the Court of Appeals questioning the executive discretion of the DOJ in ordering the withdrawal of the instant information in this court.


          The decision of the CA in the said certiorari is limited only to the executive discretion on probable cause and it does not cover whatever finding the Honorable Court would have as to the question of whether there still exists judicial probable cause to warrant the continuation of the trial.


          Nevertheless, whatever happens with the certiorari case of the GSIS taken from the resolution of the DOJ, there is still no hindrance for the Honorable Court to exercise its discretion to decide to dismiss the instant case for UTTER LACK OF PROBABLE CAUSE.


Let the Crespo vs. Mogul doctrine rule!



The Prayer



WHEREFORE, it is prayed for the Honorable Court to JUNK the instant appeal due to lack of personality, double jeopardy, and utter lack of substance.


Other reliefs just and equitable are also prayed for.  21 October 2015, Manila.


CAUSING SABARRE CASTRO Pelagio
Mailing Address: Unit No. 1, # 2368 JB Roxas St., corner Leon Guinto St., Malate, Manila
Email addresses: berteni.causing@gmail.comtotocausing@yahoo.com; Tel/Fax: 3105521


By:

BERTENI CATALUÑA CAUSING, CE
IBP No. 949537/ 06-01-2015 / Manila IV
PTR No. 3834103 / 06-01-2015 / Manila
Roll No. 60944/MCLE No. IV – 0007338 issued 10 August 2012

Cc:

THE OFFICE OF THE CITY PROSECUTOR
City Hall, Manila

Private complainant
GOVERNMENT SERVICE INSURANCE SYSTE (GSIS)
Reclamation Area,
Roxas Blvd., Pasay City 


EXPLANATION

              Lack of manpower compelled the service of copy to the private complainant by registered mails.


BERTENI CATALUÑA CAUSING, CE
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