THIRD DIVISION

[G.R. No. 162540. July 13, 2009.]

GEMMA T. JACINTO , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.

DECISION

PERALTA , J : p

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking
the reversal of the Decisions 1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated
December 16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its
Resolution 2 dated March 5, 2004 denying petitioner's motion for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and
Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City,
Branch 131, with the crime of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City,
Metro Manila, and within the jurisdiction of this Honorable Court, the above-
named accused; conspiring together and mutually helping one another, being
then all employees of MEGA FOAM INTERNATIONAL INC., herein represented by
JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid
establishment, with grave abuse of trust and confidence reposed upon them with
intent to gain and without the knowledge and consent of the owner thereof, did
then and there willfully, unlawfully and feloniously take, steal and deposited in
their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the
sum of P10,000.00, representing payment made by customer Baby Aquino to the
Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid
stated amount of P10,000.00.
CONTRARY TO LAW. 3

The prosecution's evidence, which both the RTC and the CA found to be more credible,
reveals the events that transpired to be as follows. STHAaD

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed
petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the
amount of P10,000.00. The check was payment for Baby Aquino's purchases from Mega
Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check
was deposited in the Land Bank account of Generoso Capitle, the husband of Jacqueline
Capitle; the latter is the sister of petitioner and the former pricing, merchandising and
inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call
sometime in the middle of July from one of their customers, Jennifer Sanalila. The
customer wanted to know if she could issue checks payable to the account of Mega Foam,
instead of issuing the checks payable to CASH. Said customer had apparently been
instructed by Jacqueline Capitle to make check payments to Mega Foam payable to CASH.
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 Around that time, Ricablanca also received a phone call from an employee of Land Bank,
Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to
inform Capitle that the subject BDO check deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega
Foam, asking the latter to inform Jacqueline Capitle about the phone call from Land Bank
regarding the bounced check. Ricablanca explained that she had to call and relay the
message through Valencia, because the Capitles did not have a phone; but they could be
reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle at
Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed
Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told
Ricablanca of a plan to take the cash and divide it equally into four: for herself, Ricablanca,
petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foams
accountant, reported the matter to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter
indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment
for her purchases from Mega Foam. 4 Baby Aquino further testified that, sometime in July
1997, petitioner also called her on tine phone to tell her that the BDO check bounced. 5
Verification from company records showed that petitioner never remitted the subject
check to Mega Foam. However, Baby Aquino said that she had already paid Mega Foam
P10,000.00 cash in August 1997 as replacement for the dishonored check. 6
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO
check in his bank account, but explained that the check came into his possession when
some unknown woman arrived at his house around the first week of July 1997 to have the
check rediscounted. He parted with his cash in exchange for the check without even
bothering to inquire into the identity of the woman or her address. When he was informed
by the bank that the check bounced, he merely disregarded it as he didn't know where to
find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint, with the National Bureau of Investigation (NBI) and
worked out an entrapment operation with its agents. Ten pieces of P1,000.00 bills
provided by Dyhengco were marked and dusted with fluorescent powder by the NBI.
Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was
going along with Valencia's plan. AacSTE

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who
was then holding the bounced BDO check, handed over said check to Ricablanca. They
originally intended to proceed to Baby Aquino's place to have the check replaced with
cash, but the plan did not push through. However, they agreed to meet again on August 21,
2007.
On the agreed date, Ricablanca again went to petitioner's house, where she met petitioner
and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita
Valencia; Jacqueline Capitle decided not to go with the group because she decided to go
shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded
petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the
jeep and entered the premises of Baby Aquino, pretending that she was getting cash from
Baby Aquino. However, the cash she actually brought out from the premises was the
P10,000.00 marked money previously given to her by Dyhengco. Ricablanca divided the
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 money and upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner.
Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching
the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found
fluorescent powder on the palmar and dorsal aspects of both of their hands. This showed
that petitioner and Valencia handled the marked money. The NBI filed a criminal case for
qualified theft against the two and one Jane Doe who was later identified as Jacqueline
Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented the
following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30,
1997, but claimed that she had stopped collecting payments from Baby Aquino for quite
some time before her resignation from the company. She further testified that, on the day
of the arrest, Ricablanca came to her mother's house, where she was staying at that time,
and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner
was going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided to
hitch a ride with the former and her husband in their jeep going to Baby Aquino's place in
Caloocan City. She allegedly had no idea why Ricablanca asked there to wait in their jeep,
which they parked outside the house of Baby Aquino, and was very surprised when
Ricablanca placed the money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on
June 30, 1997. It was never part of her job to collect payments from customers. According
to her, on the morning of August 21, 1997, Ricablanca called her up on the phone, asking if
she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia
claims that she agreed to do so, despite her admission during cross-examination that she
did not know where Baby Aquino resided, as she had never been to said house. They then
met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and
proceeded to Baby Aquino's place. When they arrived at said place, Ricablanca alighted,
but requested them to wait for her in the jeep. After ten minutes, Ricablanca came out and,
to her surprise, Ricablanca gave her money and so she even asked, "What is this?" Then, the
NBI agents arrested them.
The trial of the three accused went its usual course and, on October 4, 1999, the RTC
rendered its Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale
De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline
Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT
and each of them is hereby sentenced to suffer imprisonment of FIVE (5)
YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX
(6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.
SO ORDERED. 7

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the
dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in
that: IcTEAD

(a) the sentence against accused Gemma Jacinto stands;

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 (b) the sentence against accused Anita Valencia is reduced to 4
months arresto mayor medium.

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5,
2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the
Decision and Resolution of the CA. The issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in the
information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond
reasonable doubt. 8

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to Article 310,
both of the Revised Penal Code: (1) the taking of personal property as shown by the fact
that petitioner, as collector for Mega Foam, did not remit the customer's check payment to
her employer and, instead, appropriated it for herself; (2) said property belonged to
another the check belonged to Baby Aquino, as it was her payment for purchases she
made; (3) the taking was done with intent to gain this is presumed from the act of
unlawful taking and further shown by the fact that the check was deposited to the bank
account of petitioner's brother-in-law; (4) it was done without the owner's consent
petitioner hid the fact that she had received the check payment from her employer's
customer by not remitting the check to the company; (5) it was accomplished without the
use of violence or intimidation against persons, nor of force upon things the check was
voluntarily handed to petitioner by the customer, as she was known to be a collector for
the company; and (6) it was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code,
the personal property subject of the theft must have some value, as the
intention of the accused is to gain from the thing stolen. This is further bolstered
by Article 309, where the law provides that the penalty to be imposed on the accused is
dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but
the same was apparently without value, as it was subsequently dishonored. Thus, the
question arises on whether the crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals 9 is highly instructive and applicable to the present case. In Intod,
the accused, intending to kill a person, peppered the latter's bedroom with bullets, but
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 since the intended victim was not home at the time, no harm came to him. The trial court
and the CA held Intod guilty of attempted murder. But upon review by this Court, he was
adjudged guilty only of an impossible crime as defined and penalized in paragraph 2,
Article 4, in relation to Article 59, both of the Revised Penal Code, because of the factual
impossibility of producing the crime. Pertinent portions of said provisions read as follows:
cCAIaD

Article. 4(2). Criminal Responsibility. Criminal responsibility shall be

incurred:
xxx xxx xxx

2. By any person performing an act which would be an offense against

persons or property, were it not for the inherent impossibility of
its accomplishment or on account of the employment of
inadequate to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime

because the means employed or the aims sought are impossible. When the
person intending to commit an offense has already performed the acts for the
execution of the same but nevertheless the crime was not produced by reason of
the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are essentially
inadequate to produce the result desired by him, the court, having in mind the
social danger and the degree of criminality shown by the offender, shall impose
upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an
offense against persons or property; (2) that the act was done with evil intent; and (3) that
its accomplishment was inherently impossible, or the means employed was either
inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4 (2) of the Revised Penal Code was further explained by the
Court in Intod 1 0 in this wise:
Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is
inherently impossible of accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its
nature one impossible of accomplishment. There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing the intended act in
order to qualify the act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.
xxx xxx xxx
The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances

unknown to the actor or beyond his control prevent the consummation of the
intended crime. . . . 1 1

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 In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to
steal the latter's wallet, but gets nothing since the pocket is empty. AEScHa

Herein petitioner's case is closely akin to the above example of factual impossibility given
inIntod. In this case, petitioner performed all the acts to consummate the crime of
qualified theft, which is a crime against property. Petitioner's evil intent cannot be denied,
as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to
gain or be unjustly enriched. Were it not for the fact that the check bounced, she would
have received the face value thereof, which was not rightfully hers. Therefore, it was only
due to the extraneous circumstance of the check being unfunded, a fact unknown to
petitioner at the time, that prevented the crime from being produced. The thing unlawfully
taken by petitioner turned out to be absolutely worthless, because the check was
eventually dishonored, and Mega Foam had received the cash to replace the value of said
dishonored check.
The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which
she thought was the cash replacement for the dishonored check, is of no moment. The
Court held in Valenzuela v. People 1 2 that under the definition of theft in Article 308 of the
Revised Penal Code, "there is only one operative act of execution by the actor involved in
theft the taking of personal property of another." Elucidating further, the Court held, thus:
. . . Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter's
consent."
xxx xxx xxx
. . . when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that perspective,
it is immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable to freely dispose of
the property stolen since the deprivation from the owner alone has already ensued
from such acts of execution. . . .

xxx xxx xxx

. . . we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he
has no opportunity to dispose of the same. . . .
. . . Unlawful taking, which is the deprivation of one's personal property, is the
element which produces the felony in its consummated stage. . . . 1 3

From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored check was
no longer necessary for the consummation of the crime of quali ed theft. Obviously,
the plan to convince Baby Aquino to give cash as replacement for the check was
hatched only after the check had been dishonored by the drawee bank. Since the crime
of theft is not a continuing offense, petitioner's act of receiving the cash replacement
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 should not be considered as a continuation of the theft. At most, the fact that petitioner
was caught receiving the marked money was merely corroborating evidence to
strengthen proof of her intent to gain. SCHcaT

Moreover, the fact that petitioner further planned to have the dishonored check replaced
with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since
said scheme was not included or covered by the allegations in the Information, the Court
cannot pronounce judgment on the accused; otherwise, it would violate the due process
clause of the Constitution. If at all, that fraudulent scheme could have been another
possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004, are
MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as
defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Petitioner is sentenced to suffer the penalty of six (6) months of arresto
mayor, and to pay the costs.
SO ORDERED.
Ynares-Santiago, Chico-Nazario, Velasco, Jr. and Nachura, JJ., concur.
Footnotes

1. Penned by Associate Justice Mario L. Guaria III, with Associate Justices Martin S.
Villarama, Jr. and Jose C. Reyes, Jr., concurring; rollo, pp. 70-77.
2. Id. at 86.
3. Records, p. 107.
4. TSN, February 11, 1998, p. 8.

5. Id. at 14.
6. TSN, February 11, 1998, pp. 9-10.
7. Rollo, p. 51.
8. Id. at 128.
9. G.R. No. 103119, October 21, 1992, 215 SCRA 52.

10. Supra.
11. Id. at 57-58.
12. G.R. No. 160188, June 21, 2007, 525 SCRA 306, 324.
13. Id. at 327, 343-345.

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