Horca vs. People

The crime of Theft requires proof of intent to gain, which the prosecution must establish beyond reasonable doubt; where the evidence shows the accused used the money for its intended purpose, reasonable doubt exists as to this element. Additionally, not all misappropriation constitutes estafa — if the accused was entrusted only with material or physical (natural) or de facto possession of the thing, misappropriation constitutes theft, but if juridical possession was transferred, the crime is estafa.

Elizabeth Horca was a consultant for Expert Travel and Tours Inc., tasked with assisting clients in booking flights and processing their visas and other documents. Sister Linda Jo Reynolds was the secular treasurer of the Sisters of Providence, a religious congregation of women of the Roman Catholic Church, with the duty to oversee the congregation's financial matters. Sister Reynolds procured Horca's services as the group's travel agent for a trip to Rome, Italy scheduled in October 2001, and the two entered into an agreement for the purchase of 19 Swiss Air airline tickets.

Elizabeth Horca was charged with Theft for allegedly receiving P1,005,626.50 from the Sisters of Providence, represented by Sister Linda Jo Reynolds, under an express obligation to deliver 19 Swiss Air plane tickets for Rome, but failing to do so and instead misappropriating and converting the amount to her own personal use. Sister Reynolds, the secular treasurer of the Sisters of Providence, procured Horca's services as the group's travel agent for a trip to Rome, Italy scheduled in October 2001. A couple of months before the trip, Sister Reynolds ordered from Horca 19 airline tickets and issued two BPI checks amounting to P502,813.25 each, or a total of P1,005,626.50, as payment therefor. The agency, through Horca, acknowledged and issued an official receipt for the payment of the 19 tickets, but Sister Reynolds only received four tickets and was informed that the other 15 tickets were stolen. The four tickets could not be used and had to be returned to Horca because the flight covered by the said tickets was cancelled. Sister Reynolds had to make arrangements anew with another airline with the help of other sisters in Montreal, Canada to push through with their flight.

Sister Reynolds made several demands for Horca to return the amount of P1,005,626.50, as evinced by four demand letters respectively dated May 20, 2002, October 7, 2002, November 29, 2002, and July 24, 2003. Despite her promise to pay back Sister Reynolds the full amount, Horca was only able to return P90,000.00, prompting the nun to file the complaint before the RTC. For her part, Horca averred that she was a consultant for Expert Travel and Tours Inc., tasked to assist clients in booking flights and processing their visa and other documents. She confirmed that she received two checks from Sister Reynolds totaling P1,005,626.50 on August 29, 2001, under the agreement that she was to book 19 Swiss Air plane tickets for them. Horca admitted that she was given sufficient authority by the travel agency to collect the checks, obtain the tickets from Swiss Air, and turn over the tickets to the Sisters of Providence. She claimed that Swiss Air refunded the value of the checks to Expert Travel but she was unable to get the money from the agency. Wanting to save face and thinking that the travel agency would reimburse her, Horca voluntarily refunded Sister Reynolds the amount of P90,000.00, with the rest of the amount to be paid on installment and the interest amortized. However, Expert Travel did not reimburse her because it was already going to close and stop operations.

The RTC rendered its Decision holding that all the elements of the crime of Theft were present, ruling that Horca's defense of denial was negative, self-serving, and undeserving of weight in law. The trial court found Horca guilty beyond reasonable doubt of Theft and sentenced her to suffer the maximum penalty of twenty (20) years imprisonment, applying Article 309(1) of the Revised Penal Code, and to reimburse the private complainant P915,626.50 plus twelve percent (12%) interest until the actual amount is totally paid. The CA affirmed the RTC ruling but modified the interest rate to six percent (6%) per annum from the date of finality of the decision until fully paid. In her Motion for Reconsideration before the CA, Horca insisted that the crime charged was not supported by the evidence on record and that her liability was merely civil in nature, and raised a new argument claiming that the crime charged should have been estafa and not theft. The CA denied the motion, reiterating that the elements of theft had been sufficiently established and noting that the estafa argument was raised for the first time on appeal.

• Estafa, not Theft: Petitioner argued that the crime charged should have been estafa and not theft because the Information contained the statement that "she instead misappropriated and converted the same to her own personal use and benefit to the damage and prejudice of Sisters of Providence," which allegedly constitutes estafa.
• Insufficient Evidence: Petitioner insisted that the crime charged was not supported by the evidence on record and that her liability was merely civil in nature.
• Use of Funds for Intended Purpose: Petitioner maintained that she actually used the money covered by the checks for its intended purpose, i.e., to purchase the airline tickets, and that the remaining 15 tickets were not delivered because the flight was cancelled due to a strike in connection with Swiss Air's bankruptcy, not because they were stolen.
• Refund to Agency: Petitioner claimed that Swiss Air refunded the value of the checks to Expert Travel, not to her, and that she was unable to get the money from the agency, which was going to close and stop operations.

• Elements of Theft Established: The prosecution argued that all the elements of the crime of Theft were present, and that Horca's defense of denial was negative, self-serving, and undeserving of weight in law, in contrast with the prosecution's presentation of credible witnesses who testified on affirmative matters.
• Deception in Delivery of Tickets: The prosecution claimed that Horca deceived Sister Reynolds when she told her that the 15 tickets were stolen from one of the agency's employees who was tasked to deliver them, and that Horca never intended to deliver all of the tickets.

• Procedural Defects: Whether the petition should be dismissed for the defective Verification and Certification of Non-Forum Shopping and for raising questions of fact in a Rule 45 petition.
• Estafa vs. Theft: Whether the crime charged should have been estafa and not theft given the allegations in the Information.
• Guilt for Theft: Whether petitioner is guilty beyond reasonable doubt of the crime of Theft under Article 308 of the Revised Penal Code.

• Procedural Defects: No. The Court adopted a liberal stance and decided the petition on its merits rather than on a procedural technicality, noting that an appeal in a criminal case opens the entire case for review. The defective verification, having been signed and prepared by petitioner's counsel who was disqualified from notarizing the Verification portion, ought to be treated as an unsigned pleading, and the petition raised questions of fact beyond the purview of Rule 45, but the Court nonetheless proceeded to decide the case on its merits.
• Estafa vs. Theft: No. The argument was raised for the first time on appeal and was barred by estoppel; even on the merits, not all misappropriation is estafa. Horca was properly charged with Theft because she was merely entrusted with the material or physical possession of the sum of money, and juridical possession was never shown to have been transferred to her.
• Guilt for Theft: No. The prosecution failed to prove the crucial element of taking with intent to gain beyond reasonable doubt, as the evidence showed Horca actually used the money for its intended purpose of purchasing airline tickets, and it was not established that she received the reimbursed amount from Swiss Air.

• Procedural Defects: The Court noted that the Verification and Certification of Non-Forum Shopping attached to the petition was defective because petitioner's counsel, Atty. Ajay Noreen D.S. Reyes, having signed and prepared the petition, was disqualified from notarizing the Verification portion under the 2004 Rules on Notarial Practice, which state that a notary public is disqualified from performing a notarial act if he is a party to the instrument or document to be notarized. The petition likewise raised questions of fact, as the Court was being asked to analyze or weigh all over again the evidence already considered in the proceedings below. Notwithstanding these defects, the Court adopted a liberal stance and decided the petition on its merits, as an appeal in a criminal case opens the entire case for review.

• Estafa vs. Theft: The Court rejected the estafa argument because it was raised for the first time in the Motion for Reconsideration before the CA, and it is axiomatic that issues raised for the first time on appeal should not be entertained, as doing so would be anathema to the rudiments of fairness and due process. Citing S.C. Megaworld vs. Parada, the Court ruled that points of law, theories, issues, and arguments not brought to the attention of the lower court need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage, and any issue raised for the first time on appeal is barred by estoppel. Even on the merits, the Court found the argument without merit, citing Pideli vs. People, which instructs that not all misappropriation is estafa. The principal distinction between theft and estafa is that in theft the thing is taken, while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property: if he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation constitutes theft, but if he has juridical possession, his conversion constitutes estafa. Applying this jurisprudence, Horca was properly charged with Theft because she was merely entrusted with the material or physical possession of the sum of money, and juridical possession, which means a possession that gives the transferee a right over the thing transferred and that which he may set up even against the owner, was never shown to have been transferred to her.

• Guilt for Theft: The Court ruled that under Article 308 of the RPC, the crime of theft is committed when the following elements concur: (1) there be taking of personal property; (2) said property belongs to another; (3) the taking be done with intent to gain; (4) the taking be done without the consent of the owner; and (5) the taking be accomplished without the use of violence, intimidation, or force upon persons or things. It is a cardinal principle that in all criminal prosecutions, the prosecution bears the burden to establish the guilt of the accused beyond reasonable doubt, and the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. The Court found reasonable doubt as to the guilt of the petitioner because the prosecution failed to sufficiently prove the crucial element of taking with intent to gain. Animus lucrandi, or intent to gain, is an internal act which can be established through the overt acts of the offender and can be presumed from the unlawful taking. However, the prosecution failed to adduce any concrete evidence showing that Horca had taken the cash for her own personal gain. On the contrary, the records showed that Horca actually used the money covered by the checks for its intended purpose, i.e., to purchase the airline tickets, albeit only four were initially delivered to Sister Reynolds. This was apparent from Sister Reynolds' testimony where she disclosed that Horca had given her fax copies of the airline tickets prior to the scheduled flight. The prosecution's claim that Horca deceived Sister Reynolds when she told her that the 15 tickets were stolen was not adequately proven during trial or discussed at all. It was unclear from the prosecution evidence how these tickets were stolen or if Horca had taken the money intended for the purchase of the tickets and kept it for her own benefit. Horca, for her part, explained that the remaining 15 tickets were not delivered because the flight was cancelled due to a strike in connection with Swiss Air's bankruptcy. It was also not established from the records if Horca took or received the money after Swiss Air reimbursed the amount to the travel agency, as there was no clear evidence presented to prove that the money reimbursed by Swiss Air landed in the hands of Horca. The Court held that the authority given to Horca to collect the checks, obtain the tickets, and turn over the tickets to the Sisters of Providence cannot be interpreted to mean that she was also given authority to take possession of the reimbursed amount.

The Court further ruled that the acquittal of the accused does not automatically preclude a judgment against him on the civil aspect of the case. Citing Dayap vs. Sendiong, the extinction of the penal action does not carry with it the extinction of the civil liability where: (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused is acquitted. The civil aspect of the criminal case can survive an acquittal when it is based on reasonable doubt, and the civil action can prevail as long as preponderant evidence tilts in favor of a finding of liability. As applied in this case, the Court found reason to believe that Horca should be held civilly liable to the Sisters of Providence, as the fact remains that Sister Reynolds and her congregation were prejudiced when they paid for the tickets but did not get reimbursed when the flight was cancelled. This was supported by Horca's own acts when she acknowledged the need to return the money and when she actually paid Sister Reynolds the amount of P90,000.00 to partially cover for the airline tickets, which essentially amounts to an admission of her liability to return the said amount.

• Distinction between Theft and Estafa based on Nature of Possession — The principal distinction between theft and estafa is that in theft the thing is taken, while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property: if he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation constitutes theft, but if he has juridical possession of the thing, his conversion constitutes embezzlement or estafa. Juridical possession means a possession that gives the transferee a right over the thing transferred and that which he may set up even against the owner. In this case, Horca was properly charged with Theft because she was merely entrusted with the material or physical possession of the sum of money, and juridical possession was never shown to have been transferred to her.

• Elements of Theft — Under Article 308 of the Revised Penal Code, the crime of theft is committed when the following elements concur: (1) there be taking of personal property; (2) said property belongs to another; (3) the taking be done with intent to gain; (4) the taking be done without the consent of the owner; and (5) the taking be accomplished without the use of violence, intimidation, or force upon persons or things. The prosecution bears the burden to prove each and every element of the crime charged beyond reasonable doubt, and the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.

• Animus Lucrandi (Intent to Gain) — Intent to gain is an internal act which can be established through the overt acts of the offender and can be presumed from the unlawful taking. Where the prosecution fails to adduce concrete evidence showing that the accused took the property for personal gain, and the records show that the accused actually used the money for its intended purpose, reasonable doubt exists as to this element, warranting acquittal.

• Civil Liability Surviving Acquittal Based on Reasonable Doubt — The acquittal of the accused does not automatically preclude a judgment against him on the civil aspect of the case. The extinction of the penal action does not carry with it the extinction of the civil liability where: (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused is acquitted. The civil action can prevail as long as preponderant evidence tilts in favor of a finding of liability, meaning that while the mind of the court cannot rest easy in penalizing the accused for the commission of a crime, it nevertheless finds that he or she committed or omitted to perform acts which serve as a separate source of obligation.

• Issues Raised for the First Time on Appeal — It is well-settled that no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues, and arguments not brought to the attention of the lower court need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule, and any issue raised for the first time on appeal is barred by estoppel.

• "Although there is misappropriation of funds here, petitioner was correctly found guilty of theft. As early as U.S. v. De Vera, the Court has consistently ruled that not all misappropriation is estafa." — This passage from Pideli v. People, quoted by the Court, articulates the controlling doctrine distinguishing theft from estafa based on the nature of possession transferred to the accused, and was applied to reject the petitioner's argument that the crime should have been estafa.

• "The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa." — This is the canonical formulation of the distinction between theft and estafa, quoted from Chief Justice Ramon C. Aquino's commentary on the Revised Penal Code, and is the controlling principle for determining the proper charge when misappropriation is present.

• "The acquittal of the accused does not automatically preclude a judgment against him on the civil aspect of the case. The extinction of the penal action does not carry with it the extinction of the civil liability where: (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused is acquitted." — This passage from Dayap v. Sendiong, quoted by the Court, establishes the doctrine that the civil aspect of a criminal case can survive an acquittal based on reasonable doubt, and was applied to hold the petitioner civilly liable despite her acquittal.

• Pideli vs. People, 568 Phil. 793 (2008) — Controlling precedent cited for the distinction between theft and estafa, holding that not all misappropriation is estafa and that the nature of possession (material or physical versus juridical) determines the proper crime. Also cited for the rule that Rule 45 petitions are limited to questions of law.

• S.C. Megaworld vs. Parada, 717 Phil. 752 (2013) — Cited for the rule that issues raised for the first time on appeal are barred by estoppel and will not be entertained by a reviewing court.

• Dayap vs. Sendiong, 597 Phil. 127 (2009) — Controlling precedent for the doctrine that the civil aspect of a criminal case can survive an acquittal based on reasonable doubt, enumerating the circumstances when the extinction of the penal action does not carry with it the extinction of civil liability.

• U.S. vs. De Vera — Cited within Pideli as the early case establishing that not all misappropriation is estafa, where the accused received a bar of gold and bank notes for specific purposes but appropriated them, and the Court ruled the crime was theft since delivery did not transfer juridical possession.

• People vs. Claro, 808 Phil. 455 (2017) — Cited for the cardinal principle that the prosecution bears the burden to establish the guilt of the accused beyond reasonable doubt, anchored on the constitutional presumption of innocence.

• Dy vs. People, 792 Phil. 672 (2016) — Cited for the proposition that while the mind of the court cannot rest easy in penalizing the accused for the commission of a crime, it nevertheless finds that he or she committed or omitted to perform acts which serve as a separate source of obligation.

• Ramos vs. Baldo, G.R. No. 199196, March 20, 2012 — Cited for the rule that a notary public is disqualified from performing a notarial act if he is a party to the instrument or document to be notarized, under the 2004 Rules on Notarial Practice.

• Reside vs. People, G.R. No. 210318, July 28, 2020 — Cited for the definition of juridical possession as a possession that gives the transferee a right over the thing transferred and that which he may set up even against the owner.

• Article 308, Revised Penal Code — Defines the crime of theft and enumerates who are liable for theft, including any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent. The Court applied this provision in determining whether the elements of theft were proven beyond reasonable doubt.

• Article 309(1), Revised Penal Code — Prescribes the penalty for theft, which the RTC applied in sentencing the petitioner to the maximum penalty of twenty (20) years imprisonment. The Supreme Court's acquittal rendered this penalty inoperative.

• Rule 45, Rules of Court — Governs petitions for review on certiorari, which are limited only to questions of law. The Court noted that the petition raised questions of fact beyond the purview of this mode of review but adopted a liberal stance to decide the case on its merits.

• Rule 7, Section 4, Rules of Court — Provides that a pleading lacking proper verification ought to be treated as an unsigned pleading. The Court applied this rule to the defective Verification and Certification of Non-Forum Shopping attached to the petition.

• 2004 Rules on Notarial Practice, A.M. No. 02-8-13-SC, Rule IV, Sec. 3(a) — States that a notary public is disqualified from performing a notarial act if he is a party to the instrument or document that is to be notarized. The Court applied this rule in finding the Verification defective because petitioner's counsel had signed and prepared the petition.

Justices Inting, Zalameda, M. Lopez, and Gaerlan concurred with the decision. Justice Dimaampao had prior participation in the CA proceedings and was replaced per the October 31, 2021 Raffle. Senior Associate Justice Estela M. Perlas-Bernabe took no part as her former staff is counsel for petitioner.