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
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,
EXPLANATION
Lack of manpower compelled the service of copy to the
private complainant by registered mails.
BERTENI CATALUÑA CAUSING, CE
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