Cariaga vs. Court of Appeals

In a criminal case, the sworn statement of an absent witness may be admitted as former testimony under Section 47, Rule 130 and Section 1(f), Rule 115 of the Rules of Court only upon strict proof that the witness is deceased, out of the Philippines, or unable to testify due to a grave cause almost amounting to death, or cannot be found despite diligent efforts to compel attendance. The mere sending of a subpoena and the witness’s failure to appear does not establish unavailability. Nonetheless, a conviction may rest on the positive and credible testimony of a single eyewitness, and inconsistencies between an ex parte affidavit and in-court testimony do not automatically impair credibility.

Davao Light and Power Company (DLPC) received reports that private electricians were clandestinely selling DLPC electrical materials. Systems Analyst Luis Miguel Aboitiz initiated a covert operation to identify the source, enlisting Florencio Siton—a welder and Civilian Home Defense Forces member—as an undercover agent using the alias “Canuto Duran,” an electrician from Kabacan, Cotabato. Siton was to pose as a buyer of electrical supplies destined for a gold-panning area in Monkayo.

• The Covert Operation: Luis Miguel Aboitiz, DLPC Systems Analyst, sought assistance from Sgt. Fermin Villasis of the Theft and Robbery Section, San Pedro Patrol Station, and hired Florencio Siton as an undercover agent. Siton operated under the assumed identity “Canuto Duran,” purportedly an electrician from Kabacan, Cotabato, tasked to buy electrical materials for his boss.

• Initial Contacts: Siton (as Canuto Duran) befriended Ricardo Cariaga, a private electrician, at Miguel Store near the DLPC office. Ricardo offered to supply electrical materials through his cousin, Jonathan Cariaga, a DLPC driver. Ricardo sold Siton small electrical wires, stating they came from Jonathan.

• The First Transaction (November 17, 1988): Ricardo introduced Siton to Jonathan Cariaga at the Miguel Store. Jonathan was the permanent driver of DLPC Service Truck S‑143 of Work Gang Venus. Siton inquired about buying two 15 KVA transformers; Jonathan quoted ₱16,000. That deal failed when Aboitiz was out of town. To appease Jonathan, Siton later placed an order for a lightning arrester. The three met at Jacinto and Arellano Streets. Jonathan drove DLPC truck S‑143 to the meeting place. Ricardo gave Jonathan ₱1,800 received from Siton, and Jonathan retrieved a lightning arrester from the truck’s toolbox and handed it to Ricardo, who passed it to Siton.

• The Second Transaction (January 23, 1989): Ricardo accompanied Siton to Jonathan’s house in Davao City, where Siton obtained a 300‑meter roll of Electrical Wire No. 2 (valued at ₱5,010) and two lightning arresters with cutout (valued at ₱1,185.75 each). Siton paid ₱2,500 through Ricardo to Jonathan.

• Bust and Investigation: The operation ended on February 1, 1989, when police “apprehended” Siton to maintain his cover and took custody of the purchased items. Ricardo and another DLPC employee, Sergio Jamero, later appeared at the police station and executed extrajudicial confessions. Ricardo admitted fencing for Jonathan and Siton; Jamero confessed to pilfering DLPC materials, identifying Ricardo as his fence.

• Recovery of Items: Acting on confessions, the police recovered various DLPC items—lightning arresters, fuse cut-outs, and rolls of aluminum wire—including those Siton had purchased and those found at a certain Roselo Toledo’s house. The items were valued at a total of ₱7,038.96.

• Petitioner’s Defense: Petitioner denied the accusations. He claimed he did not know Siton and did not sell anything to Siton through Ricardo. The trial court noted the denial was not categorical as to “Canuto Duran.”

• Trial Court’s Findings: The RTC found the prosecution’s evidence—particularly the extrajudicial confessions of Ricardo and Jamero, Siton’s testimony, and police records—strong and convincing, and rejected petitioner’s denial as mere denial.

• Inadmissibility of Sworn Statement: Petitioner argued that admitting the sworn statement of Ricardo Cariaga, who never testified in court, violated his constitutional right to confront witnesses face to face. The prosecution failed to comply with the strict requirements of Section 1(f), Rule 115 of the Rules of Court because: (a) Ricardo did not orally testify in the labor case; (b) inability to testify must stem from a grave cause almost amounting to death, and the prosecution must exhaust all remedies to secure attendance; and (c) the former proceeding must also be criminal in nature.

• Lack of Credibility of Siton: Petitioner assailed the testimony of prosecution eyewitness Florencio Siton as incredible. Siton was a paid undercover agent whose testimony materially and significantly varied from his prior sworn statement on pivotal details—such as whether he directly dealt with petitioner or where the sale occurred. Petitioner contended that Siton had thousands of reasons to exaggerate or pervert the truth because he received a 15 KVA transformer from DLPC and expected future employment or privileges.

• Reasonable Doubt from Exculpatory Testimonies: Petitioner pointed to the testimonies of his superiors—Supervisor Rodolfo Sauro, who reported no missing materials in the truck; Luis Aboitiz, who stated that an investigator found no missing materials; and Engr. Estelito Saligan, who confirmed no properties were lost or missing—as engendering reasonable doubt.

• Admissibility of Sworn Statement: Respondent maintained that the sworn statement of Ricardo Cariaga was admissible under Section 47, Rule 130 of the Revised Rules of Court as testimony given in a former proceeding—the labor case for illegal dismissal—where the same parties and subject matter were involved and the adverse party had the opportunity to cross-examine. The sworn statement was annexed to DLPC’s position paper.

• Credibility of Siton: Respondent argued that Siton’s testimony was credible and sufficient to convict. The alleged inconsistencies did not detract from his credibility, and any discrepancies between his affidavit and court testimony were minor.

• Admissibility of Former Testimony: Whether the trial court erred in admitting the sworn statement of Ricardo Cariaga, who did not testify in court, in violation of petitioner’s right to confrontation, given the prosecution’s failure to establish the witness’s unavailability under Section 47, Rule 130 and Section 1(f), Rule 115 of the Rules of Court.

• Sufficiency and Credibility of Lone Witness: Whether the testimony of Florencio Siton, a paid undercover agent, was credible and sufficient to prove guilt beyond reasonable doubt despite alleged material inconsistencies with his prior sworn statement and his status as a compensated informant.

• Effect of Alleged Exculpatory Evidence: Whether the testimonies of petitioner’s superiors in DLPC—indicating no reported missing materials—created reasonable doubt that warranted acquittal.

• Admissibility of Former Testimony: The sworn statement of Ricardo Cariaga was inadmissible. The prosecution failed to show that Ricardo was unavailable under the strict standards demanded by Section 1(f), Rule 115 in criminal cases. The witness was merely subpoenaed once and did not appear; no effort was made to arrest him or to employ the court’s coercive powers. The rule that “unable to testify” requires a grave cause almost amounting to death or diligent search was not satisfied; mere sending of a subpoena and failure to appear is not enough. The trial court thus erred in admitting the sworn statement.

• Sufficiency and Credibility of Lone Witness: The inadmissibility of Ricardo’s sworn statement did not exculpate petitioner. Siton’s testimony was consistent, straightforward, and withstood lengthy cross‑examination. The supposed inconsistencies—whether Siton dealt directly with petitioner, whether he went to petitioner’s house, or the timing of delivery—were minor and did not impair credibility. Affidavits taken ex parte are generally incomplete and inaccurate compared to in‑court testimony subjected to cross‑examination. Payment to Siton was for legitimate undercover services, not for fabricating a story. Weighing witnesses, not numbering them, the positive and credible testimony of a single eyewitness sufficed for conviction.

• Effect of Alleged Exculpatory Evidence: The cited testimonies did not engender reasonable doubt. Supervisor Rodolfo Sauro admitted he did not independently verify whether reserve materials were actually used for emergencies and simply trusted petitioner’s word. Engr. Estelito Saligan clarified that his inventory covered only the warehouse, not materials already in the possession of the operations department. Thus, the statements did not confirm that no theft occurred.

• Strict Requirements for Former Testimony in Criminal Cases — For the sworn statement or deposition of an absent witness to be admissible under Section 47, Rule 130 and Section 1(f), Rule 115, the proponent must strictly prove: (1) the witness is deceased, out of the Philippines, or unable to testify due to a grave cause almost amounting to death, or cannot be found despite due diligence; (2) the testimony was given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter; and (3) the adverse party had the opportunity to cross‑examine the witness. Mere service of subpoena and the witness’s non‑appearance is insufficient; the court must exercise its coercive power to arrest. The requirement is applied with greater strictness in criminal cases because it implements the constitutional right of confrontation.

• Inconsistencies Between Affidavit and Court Testimony — Contradictions between an ex parte sworn statement and testimony in open court do not necessarily impair credibility. Affidavits are often incomplete and inaccurate; the testimony in court, subjected to cross‑examination, is superior.

• Sufficiency of a Single Credible Witness — Witnesses are weighed, not numbered. The positive, credible testimony of a single eyewitness, if it satisfies the court beyond reasonable doubt, is sufficient to convict.

• Qualified Theft by Employee with Access — Theft committed by an employee who has access to the place where the taking occurred or to the stolen items constitutes qualified theft under Article 310 of the Revised Penal Code. The circumstance of being an employee alone does not suffice; it is the access that creates the relation of confidence and intimacy required.

• Generic Aggravating Circumstance of Use of Motor Vehicle — A generic aggravating circumstance, such as the use of a motor vehicle to facilitate the commission of the crime, need not be alleged in the information; it may be proved during trial and considered in imposing the penalty.

• “[T]he preconditions set forth in Section 47, Rule 130 for the admission of testimony given by a witness out of court must be strictly complied with and that there is more reason to adopt such a strict rule in the case of Section 1(f) of Rule 115, for apart from being a rule of evidence with additional specific requisites to those prescribed by Section 47, more importantly, said provision is an implementing translation of the constitutional right of an accused person ‘to meet the witnesses (against him) face to face.’”

• “‘[U]nable to testify’ or for that matter ‘unavailability’, does not cover the case of witnesses who were subpoenaed but did not appear. It may refer to inability proceeding from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. It does not refer to tampering of witnesses.”

• “It must be emphasized that this rule is strictly complied with in criminal cases, hence, ‘mere sending of subpoena and failure to appear is not sufficient to prove inability to testify. The Court must exercise its coercive power to arrest.’”

• “[T]he contradictions between the contents of an affiant’s affidavit and his testimony on the witness stand do not always militate against the witness’ credibility because we have long taken judicial notice that affidavits, which are usually taken ex parte, are often incomplete and inaccurate.”

• “It is axiomatic that witnesses are weighed, not numbered and the testimony of only one witness, if credible and positive and if it satisfies the court beyond reasonable doubt, is sufficient to convict.”

• Toledo, Jr. vs. People, 85 SCRA 355 (1978) — Emphasized strict compliance with the preconditions for admitting former testimony, serving as the controlling standard for Section 47, Rule 130 and Section 1(f), Rule 115.

• Tan vs. Court of Appeals, 20 SCRA 54 (1967) — Defined “unable to testify” as referring to grave causes almost amounting to death; mere non‑appearance despite subpoena does not suffice.

• People vs. Lapuz, 250 SCRA 250 (1995) — Cited for the principle that the trial judge’s assessment of witness credibility is accorded great respect.

• People vs. Fulinara, 247 SCRA 28 (1995) and People vs. Lusa, 288 SCRA 296 (1998) — Established that ex parte affidavits are generally incomplete and do not automatically discredit in‑court testimony.

• De Guzman vs. Intermediate Appellate Court, 184 SCRA 128 (1990) — Affirmed that the testimony of a single credible witness is sufficient to convict.

• People vs. Seranilla, 161 SCRA 193 (1988) — Held that an employee’s access to stolen items qualifies the theft under Article 310.

• People vs. Bragas, 315 SCRA 216 (1999) — Declared that generic aggravating circumstances need not be alleged in the information.

• People vs. Cayanan, 245 SCRA 66 (1995) — Recognized that use of a motor vehicle to facilitate theft may be appreciated as an aggravating circumstance.

• Article 309(2), Revised Penal Code — Prescribes the penalty of prision correccional in its medium and maximum periods for theft where the value of the property stolen exceeds ₱6,000 but does not exceed ₱12,000. The value of the stolen items was ₱7,038.96, falling under this paragraph.

• Article 310, Revised Penal Code — Punishes qualified theft by the penalty next higher by two degrees than that specified in Article 309. The element of grave abuse of confidence was present because petitioner, as truck driver, had access to the DLPC materials stored in his vehicle.

• Article 25, Revised Penal Code — Applied to compute the penalty two degrees higher: prision mayor maximum to reclusion temporal minimum.

• Article 64(3), Revised Penal Code — Governs the imposition of the penalty when an aggravating circumstance is present; the use of a motor vehicle was treated as a generic aggravating circumstance, requiring the penalty to be imposed in its maximum period.

• Section 47, Rule 130, Revised Rules of Court — Provides the general exception to the hearsay rule for testimony or deposition given at a former proceeding. The requirements were not satisfied due to lack of showing of unavailability.

• Section 1(f), Rule 115, Revised Rules of Criminal Procedure — Implements the right of confrontation by allowing the use of testimony of an unavailable witness given in another proceeding under strict conditions. The prosecution’s failure to exercise coercive process was fatal to admissibility.

Melo, Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concurred.