Qualified Tress Cases 302y3c

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-6730

October 15, 1954

PEDRO GABRIEL and AVELINO NATIVIDAD, petitioners, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS (First Division), respondents.

Ross, Selph, Carrascoso and Janda for petitioners. Assistant Solicitor General Guillermo E. Torres and Solicitor Felicisimo R. Rosete for respondents.

REYES, A., J.:

This is an appeal from a judgment of the Court of Appeals, convicting the appellants Pedro Gabriel and Avelino Natividad of simple tres to dwelling on facts found by the said court to be as follows:

. . . Sherman Jones and his wife, Josefina Jones, were occupying the house No. 9-B, M.H. del Pilar St., Malabon, Rizal, having as neighbor their comadre Mariquita Beltran. The electric meter of the premises was installed on a wall in a balcony, and visible from the porch of the house (Exhibit 1). At about 7:00 o'clock in the evening of April 19, 1949, accused Pedro Gabriel, Avelino Natividad and Miguel Evangelista arrived at the house, presented themselves as Meralco light inspectors to Mrs. Jones who was them on the stairs of the house with Mariquita and inquired from the ladies for Sherman Jones. Mrs. Jones told them to wait on the porch; she entered the living room, closed the door behind her and went to the family bedroom where Sherman was then in the act of changing his clothes. While Mrs. Jones was inside the bedroom and informing her husband of the presence of Meralco inspectors, accused Gabriel

inspected the electric meter and then shouted to his co-accused Natividad: "Naty, atras ang contador." Natividad rushed into the living room and then entered the bedroom where Sherman and his wife were talking. Natividad pushed the door of the bedroom with such force that the said door brushed aside Mrs. Jones who was then leaving behind it. Accused Gabriel followed Natividad to the bedroom and, with the help of the flashlights, both searched for a gadget which they suspected Sherman used in order to steal electric fluid. Notwithstanding Sherman's protest of their institution, the two accused continued their search. Finding that Sherman meant business, the intruders left the bedroom hastily, boarded their jeep and went away with the other accused Evangelista to Sangandaan Street where they met policeman Pablo Malosido of Caloocan. The trio requested the policeman accompany them to tension to do him any arm. The policeman accompanied them, but upon noticing the presence of several Americans in the house, they left. They noticed latter that a truck commonly known as 6 X 6 started from Sherman's house and followed them. They were able to hide and later went to the municipal building of Caloocan, at which Sherman and his companions subsequently arrived to complain. Sherman's complaint, however, was referred to the police authorities of Malabon who had jurisdiction over the case.

In asking for the reversal of the judgment below counsel for appellants argue that inasmuch as the original entry was with the permission of the occupant of the house and therefore lawful, nothing that happened afterwards could "convert the original lawful entry into a unlawful one." The argument assumes that appellants entered a dwelling with the consent of the householder. But the assumption is gratuitous and unwarranted, the Court of Appeals having found "that the entry was against the will of the spouses." That will was, we think, clearly manifested by the lady of the house when she told appellants to wait on the porch and closed the door behind her as she entered the drawing room. She did not, it is true, in so many words tell the appellants not to enter. But when she made them wait outside and shut the door to the interior of the house, her action spoke louder than words. The porch is an open part of the house, and being allowed to wait there under the circumstances mentioned can in no sense be taken as entry to a dwelling with the consent of the dweller.

Counsel cite the case of U.S. vs. Dionisio and Del Rosario, 12 Phil., 283; U.S. vs. Flemister, 1 Phil., 354; and People vs. De Peralta, 42 Phil., 69. But those cases were decided upon facts different from those of the present case.

In the case first cited, U.S vs. Dionisio and Del Rosario, the defendants found the principal door of a house half-open. Entering without opposition from the occupant of lower part of the house, who was, present, they proceed to the upper story, also without opposition, and there conversed with one of the inmates, who invited them to sit down and allowed them to stay for about two hours. Then trouble arose when defendants, posing as detectives, started doing something illegal. In declaring defendants not guilty of the crime of tres to dwelling, this court were held that the fact and circumstances from

which, in a given case, the opposition of the occupant may be inferred, must have been in existence prior to or at the time of the entry, and in no event can facts arising after an entry has been secured with the expenses of tacit consent of the occupant change the character of the entry from one with the assent of the occupant to one contrary thereto. That the case is to be distinguished from the one before us in that there the defendants entered a half-opened door and went inside the house without opposition, express or implied, from any of the occupants. Here, on the other hand, the lady of the house clearly — be it only impliedly — manifested her opposition to appellants' entry by telling them to wait on the porch and closing the door behind her as she left them there.

In the second case, U.S. vs. Flemister, the defendant, an American, went to a bail uninvited, danced with somebody and then left. Returning a short time thereafter, he was met near the door by the host, who took him by the hand and asked him if he had come to dance and even invited him to be seated, but tried to prevent him from entering the sala where there was a guest, another American, with whom he had a quarrel pending. The defendant, however, rudely brushed the host aside, proceeded to the sala and quarreled with the other American. "It seems clear to us," said this Court in declaring the defendant not guilty of tres to dwelling, "that the purpose of the owner of the house was to prohibit the defendant not from entering his house but from entering the sala in order to avoid a quarrel between the two Americans. His taking the defendant by the hand, asking him if he came to dance, and requesting him to be seated, are inconsistent with the idea that he was attempting to keep the defendant from entering the house." Again, unlike the appellants in the present case, the defendant in the case cited was not prohibited from entering the house; on the contrary, it would appear that he was not welcomed into it.

In the third case, People vs. De Peralta, the accused, the new president of the Philippine Marine Union, called at the door of a room which his predecessor in office was allowed to occupy as his dwelling in a house rented by the union, pushed the said door and without the permission of the occupant entered the room to take away a desk glass which he believed was union property. These was no evidence that the occupant "has expressed his will in the sense of prohibiting (the accused) from entering his room," and it was to be supposed, this Court said, "that the of the Philippine Marine Union, among them the accused, had some familiarity which warrants entrance into the room occupied by the president of the association, particularly when we consider the hour at which the act in question happened (between half pat ten and eleven in the morning), the fact that the door of the room was not barricaded or locked with a key, and the circumstance that the room in question was part of the house rented to said association." Upon those facts, this Court acquitted the accused of the charge of tres to dwelling, following the uniform doctrine here and in Spain that "this crime is committed when a person enters another's dwelling against the will of the occupant, but not when the entrance is effected without his knowledge or opposition." It is to be noted that the entry in that case was effected without express or implied opposition from the occupant of the room and under circumstances warranting an entrance without previous leave. In the present case, the entry was, as already noted, against the will of

the lady of the house, who, by her action if not by direct words, made it plain to the appellants that they were not to enter her dwelling.

Lastly, counsel contend that appellants are exempt from criminal liability under the third paragraph of article 280 of the Revised Penal Code, because "they rendered a service to justice" when, as Meralco line inspectors, they "followed Mrs. Sherman Jones to the bedroom" and there found her husband "hiding a transformer in an "aparador" ". Here again, counsel assume something which was not believed by the Court of Appeals, that is, that appellants saw Jones in the act of hiding a transformer used by him "in stealing electricity," this claim being characterized by the court as nothing but a "vain effort on the part of the appellants to fit the facts of the case to the provisions of the Revised Penal code to the effect that a person who enters a dwelling for the purpose of rendering service to justice, is not guilty of tres." In other words, the Court of Appeals believed that appellants merely suspected that there was a transformer in the house. That alone did not give them the right to enter the house against the will of its owner, unarmed as they were with a search warrant.

It appearing that the judgment appealed from is in accordance with law and the facts as found by the Court of Appeals, the same is hereby affirmed, with costs against the appellants.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, Concepcion, and Reyes, J.B.L., JJ., concur.

FIRST DIVISION

[G.R. No. 152997. November 10, 2004]

SALVADOR MARZALADO,* JR., petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision[1] dated November 9, 2001 of the Court of Appeals, in CA-G.R. CR No. 22645, which affirmed the Decision[2] dated November 5, 1998 of the Regional Trial Court (RTC) of Quezon City, Branch 79, in Criminal Case No. Q-98-74695. The RTC upheld the Metropolitan Trial Court (MeTC) of Quezon City, Branch 35, convicting herein petitioner Salvador Marzalado, Jr., for violation of Article 280[3] of the Revised Penal Code on Qualified Tres to Dwelling, and sentencing him to suffer the penalty of two (2) months and one (1) day of arresto mayor and to pay a fine of P500 and to pay the costs.[4] This petition likewise assails the Resolution[5] dated April 23, 2002, of the Court of Appeals, denying the petitioner’s Motion for Reconsideration.

The antecedent facts are as follows:

Cristina N. Albano was the lessee of a unit in the house owned by Luz Marzalado, the mother of herein petitioner, Salvador Marzalado, Jr. Sometime in February 1993, Luz Marzalado filed an ejectment case against Albano. Judgment was rendered against Albano, who was ordered to vacate the leased premises and to pay the unpaid rentals. Albano appealed to the RTC.

In September 1993, during the pendency of the appeal, the electricity supply of the unit was cut off due to non-payment of bills. As a result, Albano transferred her children to her father’s house, four houses away, leaving a maid to sleep in the unit.

Albano claims that on November 2, 1993, at around 1:00 p.m., she went to her unit. She noticed that the lead pipe she used to hang clothes to dry was missing. When she returned at about 8:00 a.m. the following day, November 3, 1993, she discovered the padlock of the main door changed, preventing her from entering the premises. She went to see petitioner but he was not around.

On November 4, 1993, Albano again returned to her unit. She peeked through the window jalousies and saw that the place was already empty. She immediately reported the matter to the barangay officials, who in turn, advised her to go to the police. Thereafter, she filed a complaint for grave coercion, qualified tres to dwelling and theft against petitioner.

On November 14, 1993, Albano tried to see the accused, but again failed. This time she noticed that the roofing of her unit had been removed and the main door locked from the inside. She was informed that on November 1, 1993, Marzalado, Jr., and his female companion took her lead pipe and on November 2, 1993, Marzalado, Jr., took her personal belongings and brought them inside his house.

Accordingly, Albano filed a suit for tres to dwelling with the MeTC of Quezon City against Marzalado, Jr., thus:

The undersigned accuses SALVADOR MAR[Z]ALADO, JR., of the crime of Tres to Dwelling, committed as follows:

That on or about the 2nd day of November, 1993, in Quezon City, Philippines, the above-named accused without any justifiable cause, did then and there, wilfully, unlawfully and feloniously enter the dwelling place of CRISTINA N. ALBANO located at No. 241 Road 1, Pag-Asa, this City, against the latter’s will and without her consent or any of the household, to the damage and prejudice of the said offended party.

CONTRARY TO LAW.

Quezon City, Philippines, March 16, 1994.[6]

On May 12, 1994, the accused was arraigned and pleaded not guilty to the charge. A summary hearing followed, with Albano and her witness, Narciso Raniedo, testifying for the prosecution.

Raniedo, the owner of the house fronting Albano’s unit, testified that at around 5:00 p.m., on November 1, 1993, he was about to enter his house, when he glanced at the unit leased by Albano. He saw Marzalado, Jr., take a lead pipe and hand it to a woman waiting at the terrace of Marzalado, Jr.’s house. Raniedo further said that on November 2, 1993, sometime between 4:30 p.m. and 5:00 p.m. he was relaxing in front of his house, when he heard noises coming from Albano’s apartment. There he saw Marzalado, Jr., forcibly open the door of the unit, bring out the belongings of Albano, and take these to his own house.

For his defense, Marzalado, Jr., testified that after the MeTC ruled against Albano in the MeTC ejectment case filed by his mother and because of the disconnection of the electricity, Albano already vacated the leased unit and moved to her father’s place. According to petitioner, on November 3, 1993, he was on his way home when he saw water in a continuous stream flowing out of Albano’s unit. He then searched for Albano but to no avail. He reported the matter to the barangay officers and asked for two barangay tanods to accompany him to the vacated unit. They went inside the unit where they found an open faucet, with water flooding the floor. He accused Albano of deliberately leaving the faucet open. He claimed Albano filed the criminal case of tres to dwelling to harass him and to retaliate against him and his family.

On October 28, 1997, the MeTC handed down the following judgment:

WHEREFORE, the Court finds accused Salvador Mar*z+alado, Jr. “GUILTY” beyond reasonable doubt of Qualified Tres To Dwelling under Article 280 of the Revised Penal Code and he is hereby sentenced the penalty of TWO (2) MONTHS and ONE (1) DAY of Arresto Mayor and to pay a fine of P 500.00 and to pay the costs.

SO ORDERED.[7]

The trial court observed that the defense would have been “a good defense” had the alleged entry been made on November 2, 1993, the date stated in the Information, instead of November 3, 1993, the date the accused said he entered the premises because Albano deliberately left the faucet open.

Marzalado, Jr., appealed to the RTC, which ruled the matter in this wise:

WHEREFORE, finding no reversible error in the appealed decision dated October 28, 1997, the same is hereby affirmed in toto.

SO ORDERED.[8]

Undaunted, Marzalado, Jr., elevated the matter to the Court of Appeals in CA-G.R. CR No. 22645. The Court of Appeals found no error in the challenged RTC decision and held:

WHEREFORE, premises considered, the lower court’s decision is hereby AFFIRMED in toto and the instant petition is DISMISSED.

SO ORDERED.[9]

Hence, petitioner comes to this Court asg as errors of the court a quo the following:

I

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISIONS OF THE METROPOLITAN TRIAL COURT AND THE REGIONAL TRIAL COURT, BOTH OF QUEZON CITY BECAUSE THE INCIDENT HAPPENED ON NOVEMBER 3, 1993, AND NOT NOVEMBER 2, 1993, AND THE PETITIONER’S ENTRY IN THE PREMISES IS FULLY JUSTIFIED BECAUSE HE WAS ASSISTED BY THEIR BARANGAY SECRETARY AND TWO BARANGAY TANOD[S] AND THE ENTRY IS FOR A VALID PURPOSE. HENCE, THERE IS NO TRES TO DWELLING.

II

THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE INFORMATION THAT THE ALLEGED TRES TO DWELLING HAPPENED ON NOVEMBER 2, 1993. THUS, WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS, THERE WAS A MISAPPREHENSION OF FACTS, AND IT SHOULD NOT HAVE ADOPTED THE FINDINGS OF FACTS OF THE METROPOLITAN TRIAL COURT AND REGIONAL TRIAL COURT.[10]

The foregoing may be reduced to one issue: Did the Court of Appeals err in sustaining the conviction of Marzalado, Jr., for qualified tres to dwelling?

The petitioner argues that the Court of Appeals committed a reversible error in sustaining the lower court, since in the proceedings below, there was a grave misapprehension of facts by both the MeTC and RTC in finding that he committed tres to dwelling despite the glaring proof that his entry was justifiable under paragraph 4, Article 11 of the Revised Penal Code[11] - to prevent an imminent danger to property. He stresses that while he did enter the unit, he did so with the aid of barangay officers and for the sole purpose of turning off the faucet that was causing the flooding of the unit. He adds that the Information filed against him should be considered fatally defective for having stated that his entry was on November 2, 1993, when in fact it was on November 3, 1993.

The Office of the Solicitor General (OSG) counters that petitioner’s entry cannot be justified since the flooding of the floor was not a danger to life nor property. Rather, the OSG claims that the flooding of the unit could have been averted had the petitioner resorted to merely turning off the inlet valve of the water source. The OSG also stresses petitioner’s failure to refute the charge that he entered the complainant’s unit on November 2, 1993. Moreover, the OSG asserts that the exact time of the commission of the crime in the Information need not be so accurate to preclude other dates near the actual date. It is sufficient that the Information states a time as near to the actual date, more so, where the time is not an essential element of the offense, as in this case.

Anent the Information, the contention of petitioner that the Information is defective is untenable. ittedly, there is a discrepancy on the precise date of the alleged tres - the Information charges petitioner Marzalado, Jr., with tres to dwelling allegedly committed on November 2, 1993, while petitioner’s defense relate to an entry made the following day. The discrepancy however, does not make the information defective. Facts and circumstances necessary for inclusion in the information are determined by reference to the definition and elements of the specific crime.[12] In tres to dwelling, the elements are: (1) the offender is a private person; (2) that he enters the dwelling of another; and (3) such entrance is against the latter’s will.

The exact date when the alleged tres occurred is not an essential element of the offense of tres. It is sufficient that the Complaint or Information states that the crime has been committed at any time as near as possible to the date of its actual commission.[13] Rule 110, Section 11 of the Rules of Court provides that it is not necessary to state in the complaint or information the precise time the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. A variance between the time set out in the indictment and that established by the evidence during trial does not constitute an error so serious as to warrant reversal of a conviction solely on that score.[14] Thus, the error invoked by the petitioner in the date of the alleged tres in the Information is of no grave import, for it is far from being the decisive issue in this case.

However, still incumbent upon the prosecution is to establish the criminal intent and the guilt of the accused beyond reasonable doubt. Criminal cases rise and fall on the strength of the evidence of the prosecution and not the weakness of the evidence of the defense or the lack of it.[15] In the prosecution for tres, the material fact or circumstance to be considered is the occurrence of the tres. The gravamen of the crime is violation of possession[16] or the fact of having caused injury to the right of the possession.[17]

To prove tres, the prosecution presented as witness Narciso Raniedo who testified that he saw petitioner enter the unit at around 4:30 p.m. to 5:00 p.m. on November 2 and take out Albano’s belongings. No other eyewitness corroborated Raniedo’s testimony. However, by her own , Albano declared that she discovered the tres in the evening of November 3,[18] the same day the barangay certified Marzalado, Jr.’s entry. This obviously does not discount the fact that although the exact date of entry varied as between petitioner and respondent, they both were referring to the same entry.

What remains now is the issue of whether the entry of petitioner Marzalado, Jr., was legally justified. We rule that it is, based on the circumstances of this case.

As certified by Barangay Lupon Secretary Romulo E. Ragaya, the unit rented by Albano was “forcibly opened by the owner because of the strong water pressure coming out of the faucet…”*19+ As Albano herself itted, she and her children already left the unit when the electricity supply was cut off in the month of September. Hence, nobody was left to attend to the unit, except during some nights when Albano’s maid slept in the unit. Clearly, Marzalado, Jr., acted for the justified purpose of avoiding further flooding and damage to his mother’s property caused by the open faucet. No criminal intent could be clearly imputed to petitioner for the remedial action he had taken. There was an exigency that had to be addressed to avoid damage to the leased unit. There is nothing culpable concerning Marzalado, Jr.’s judgment call to enter the unit and turn off the faucet instead of closing the inlet valve as suggested by the OSG.

Thus, we find the evidence on record insufficient to hold petitioner guilty of the offense charged. Palpable doubt exists in our mind as to the guilt of petitioner. In our view, the Court of Appeals erred in affirming the Decision of the Regional Trial Court and of the Metropolitan Trial Court when it found petitioner guilty of Qualified Tres to Dwelling. In a situation of ambiguity, where the act of the accused permits of two possible signification, one culpable and another innocent, the ambiguity should

be resolved in favor of the accused. The evidence in this case simply fails to convince us of his guilt beyond reasonable doubt.

WHEREFORE, the petition is GRANTED. The Decision dated November 9, 2001 of the Court of Appeals in CA-G.R. CR No. 22645, and its Resolution dated April 23, 2002 denying the Motion for Reconsideration, are REVERSED and SET ASIDE. Petitioner SALVADOR MARZALADO, JR., is hereby ACQUITTED of the charge against him for lack of evidence to sustain a conviction beyond reasonable doubt.

SO ORDERED.

The Crime of Tres (Unauthorized Entry, Tresing)

Category: Book 2- Crimes and Penalties

I. Kinds:

1. Tres to dwelling which, depending upon the mode of entry, may be either: (a). Simple which is entry without violence or (b) Qualified which is entry with violence

2. Tres to Estate or to Property

II. Tres to Dwelling: this connotes that a stranger i.e. one who is not an occupant, actually enters the dwelling of another against the will of the owner or lawful occupant, whether express or implied.

1. Dwelling: the place where a person habitually stays for rest, comfort and peace of mind.

a). It includes the basic structure and the dependencies.

b). It may be owned by the victim or is merely leased by him or he is a guest or works thereat as a stayin.

c). The occupant need not be present at the time of entry

2. The accused is a private person else the crime is Violation of Domicile.

3. In Qualified Tres, the entry is by means of violence or intimidation

a). The violence or intimidation may be either immediately before, during or immediately after the accused has gained entry

b). It may be against persons or against things

c). The prohibition may be express or implied, in any form, and made at any time, not necessarily at the time of entry.

d). Examples: (i) Pushing aside the victim who is blocking the door (ii) cutting the string used as temporary lock (iii) removing the bolt (iv) kicking the door open

4. If there is no violence it is simple tres

a). This includes surreptitious entry

b). When the accused entered by pushing open a door with his finger, the crime is simple tres. But if upon entering an occupant pushes him out and the accused boxed, kicked or fought against the occupant, the crime is qualified tres

c). A consented entry does not become unconsented thereby giving rise to tres just because the entrant performed an act whereby he is ordered to leave but he refused.

Example: The maid allowed the accused to enter. When the father learned his intention was to court the daughter, he got mad, berated the accused and told him to leave. The accused refused not until he can see the daughter. Before being forcibly pushed out, the accused answered back and argued with the father. Did the accused commit tres? Answer: No, because he was allowed to enter by a lawful occupant.

But if the father had previously already told the accused he was not welcome into his house and instructed the maid not to let the accused enter but the maid later allowed the accused to enter, the accused is guilty of tres.

5. The entry must not be to commit a more serious crime inside the dwelling because:

a). The entry maybe absorbed as an element of the crime, such as in robbery

b). It may constitute the aggravating circumstance of unlawful entry or dwelling, as when the accused entered the dwelling in order to kill or injure an occupant.

c). Where a person was found inside a dwelling, and upon discovery he kills an occupant, there are two separate crimes: (i) tres and (ii) homicide or murder

6. The accused may be the owner of the building so long as the occupancy was voluntarily given to the victim. Example: the lessee may file Tres against the lessor who enters the leased premises against the will of the lessee.

7. Justified tres: If the entry is: (a) to prevent serious harm to himself, to an occupant or to a third person (b). to render some service to humanity or justice (c). in case of public houses while they are open

Example: X snatched the wallet of Y who gave chase. X ran inside an apartment and Y followed inside and collared the snatcher. X is liable for tres but Y is not.

Example: A traveler climbed through a window and entered a house the occupants of which are absent. The traveler had no place to sleep and a typhoon was raging. He is not liable for tres.

III. Tres to Fenced Estate or Closed Premises ( Tres to Property)

A. This requires:

a). The estate or closed premises must be uninhabited

b). There is a manifest prohibition against entry, such as a sign, or perimeter fence even if only a strand of barbed wire

c). The permission of the owner or caretaker has not been secured

B. This includes unauthorized entry into commercial establishments and private offices

The Crime of Tres (Unauthorized Entry, Tresing)

EN BANC

G.R. No. L-507

November 19, 1945

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANACLETO UY ALMEDA, appellant.

Bausa and Ampil and Ramon Diokno for appellant. Office of the Solicitor General De la Costa and Solicitor Avanceña for appellee.

PARAS, J.:

This is an appeal from a judgement of the Court of First Instance of Laguna, convicting the appellant, Anacleto Uy Almeda, of the offense of qualified tres to dwelling and sentencing him to undergo imprisonment for the indeterminate period of from four months and one day of arresto mayor to two years, four months and one day of prision correccional, with the accessories of the law and one-third of the costs.

The facts established during the trial are substantially as follows: On the morning of November 13, 1940, the appellant, in company with other persons, arrived at the house of Honorata Limpo in the municipality of Biñan, Province of Laguna. The latter was thereupon informed by appellant's companion, Potenciano Villano, that they were going to demolish and repair her house, to which Honorata Limpo objected, specially in view of the absence of her husband at the time. Unheeding this opposition, and upon express orders of the appellant, his companions Potenciano Villano and Antonio Dysionglo proceeded to gain entry into the house by means of two ladders which they placed against the front wall and to remove some boards and iron sheets that served to cover the front side. Appellant's designs were put to a stop, however, only by the arrival of Honorata's son named Francisco, who called a policemen to the scene.

It appears that the house in question was built on a lot inclosed by a stone fence having an iron grill gate. On the same lot the appellant had a warehouse; and as he had freely used said gate in going to his property, it is now contended that his entry into the yard of Honorata Limpo, which was a part of her "dwelling," could not have been unauthorized or against her will, so as to warrant his conviction under article 280 of the Revised Penal Code. Appellant's argument would require some injury if the lot on which Honorata's house was erected were exclusively hers and the appellant had not ittedly used its gate in common with Honorata, and if said argument would not further lead to a plainly unacceptable, nay undesirable, result that simply because he had free entry into and age on the common lot, he could have the same right as regards Honorata's house.

Another defense pressed in this appeal is that the opposition ed by Honorata Limpo was directed against the demolition or repair of her house and not against the original entry of the appellant and his companions into the yard of premises of her dwelling, and that although the removal of some boards and iron sheets, done by the appellant through his companions after their lawful entry, may constitute an independent offense, the said subsequent act cannot be tres defined and penalized by article 280 of the Revised Penal Code. This contention is of course partly disposed of in the proceeding paragraph. It is only necessary to add that Honorata could not have consented to the appellant's

intrusion into the house, which made him a treser, for the very purpose already objected to by her. Moreover, the method employed by appellant's men in effecting entry suggests prior refusal on the part of Honorata to it them through its stairs. Neither is there any point in appellant's pretense that, one week before the occasion in question, he had notified Honorata about the intended repairs, because said notice did and could not mean her subsequent conformity.

The appellant next tries to exculpate himself by maintaining that there is absolutely no proof as to his criminal intent in entering the yard or even the house of Honorata. Indeed, it is insisted that he merely wanted to repair said house over which he was claiming ownership. Appellant thus pretended to have bought the house for P70 from the estranged wife of Honorata's son against whose father he subsequently filed a suit to recover the premises. This case was however, decided against him. We are of the opinion that the alleged ownership is immaterial, for even supposing that the house belonged to the appellant, that fact alone did not authorize him to do anything with or enter the house against the will of its actual occupant. He could have invoked the aid of the court for the exercise or protection of his alleged proprietary rights. What is intended to be protected and preserved by the law is the privacy of one's dwelling, and, except in those cases enumerated in the third paragraph of article 280 of the Revised Penal Code, criminal intent inheres in the unwelcome visit of a treser.

The judgement appealed from is affirmed, with costs.

Article 280. Qualified tres to dwelling. - Any private person who shall enter the dwelling of another against the latter's will shall be punished by arresto mayor and a fine not exceeding 1,000 pesos.

If the offense be committed by means of violence or intimidation, the penalty shall be prision correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos.

The provisions of this article shall not be applicable to any person who shall enter another's dwelling for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person, nor shall it be applicable to any person who shall enter a dwelling for the purpose of rendering some service to humanity or justice, nor to anyone who shall enter cafes, taverns, inn and other public houses, while the same are open.

THIRD DIVISION

G.R. No. 171659

December 13, 2007

MARIETTA K. ILUSORIO, Petitioner, vs. SYLVIA K. ILUSORIO, CRISTINA A. ILUSORIO, JOVITO CASTRO and FIVE (5) JOHN DOES, Respondents.

DECISION

NACHURA, J.:

Before us on appeal, by way of a petition for review on certiorari under Rule 45 of the Rules of Court, is the Decision1 dated November 23, 2005 and the Resolution2 dated February 14, 2006, both of the Court of Appeals.

The case arose from a Complaint-Affidavit3 filed by petitioner Marietta K. Ilusorio (Marietta) for robbery, qualified tres to dwelling, and violation of Presidential Decree (P.D.) No. 1829 against private respondents Sylvia K. Ilusorio (Sylvia), Cristina A. Ilusorio (Cristina), Jovito Castro (Jovito), and five (5) John Does.

In the said Complaint-Affidavit, Marietta alleged that she, together with Erlinda K. Ilusorio (Erlinda), Ramon K. Ilusorio, and Shereen K. Ilusorio, owns and controls the majority of the shares of stock of Lakeridge Corporation (Lakeridge), the ed owner of Penthouse Unit 43-C (Penthouse Unit 43-C) of the Pacific Plaza Condominium (Pacific Plaza) in Ayala Avenue, Makati City; that Erlinda, Chairperson and President of Lakeridge, has, for the past eight years, been the present and lawful occupant of Penthouse Unit 43-C; that, sometime in October 1999, Erlinda left for the United States of America, giving her (Marietta) full authority to take care of, oversee, and secure Penthouse Unit 43-C through a letter to that effect addressed to the management of the Pacific Plaza; that on November 2, 1999, Sylvia, Christie Agcaoili-Ilusorio (referring to Cristina), with several unidentified persons, with the

consent of Jovito, Chief Security of the Pacific Plaza, forcibly entered Penthouse Unit 43-C by breaking its door and locks and allegedly caused the loss of documents and jewelry (this incident was subject of a robbery case before the Office of the City Prosecutor of Makati City docketed as I.S. No. 99-Y-37824); that on November 6, 1999, five (5) unidentified persons, with Jovito’s permission, forcibly entered Penthouse Unit 43-C by breaking its door and locks, replacing it with new ones, and thus preventing her entrance; that upon learning of the latter incident, she went to Penthouse Unit 43-C to , and, having seen the door knob torn and one of the locks broken, sought the assistance of the Makati Police; that during the on-site investigation by the police, Jovito failed to cooperate and even concealed information pertinent to the incident.

In their Counter-Affidavit,4 private respondents, while agreeing that the ed owner of Penthouse Unit 43-C is Lakeridge Development Corporation, denied that petitioner and the other persons named in the Complaint-Affidavit own and control the majority shares and that Erlinda is the chairperson and president of Lakeridge. To buttress this allegation, they submitted copies of the updated General Information Sheet5 filed with the Securities and Exchange Commission (SEC), Secretary’s Certification6 dated November 8, 1999, and SEC Certificate of Corporate Filing/Information7 dated November 3, 1999, all showing the stockholders, the officers, and the of the board of directors of Lakeridge. They also alleged that the authority given by Erlinda to Marietta was without force and effect, being ultra vires, in the absence of any board resolution to it. They also noted that the letter of authority,8 while dated October 7, 1999, was received by the management of the Pacific Plaza only on November 3, 1999, which was after the November 2, 1999 incident described in the Complaint-Affidavit. They also submitted a copy of Lakeridge’s letter9 dated October 20, 1999 to the Pacific Plaza Condominium Association, Inc., received by the latter on October 29, 1999, stating that Lakeridge had not authorized any lease or sale of Penthouse Unit 43-C. They also averred that Marietta was not authorized by the board of directors of Lakeridge to institute the criminal case and that Erlinda’s residence was not at the Pacific Plaza but in Antipolo, Rizal. More importantly, they alleged that there could not be robbery and qualified tres to dwelling because, as officers of Lakeridge, they had the right to enter Penthouse Unit 43-C.

In his separate Counter-Affidavit10 dated January 17, 2000, Jovito explained that the November 2, 1999 incident cited by Marietta in her Complaint-Affidavit where she claimed that Penthouse Unit 43-C was forced open by breaking the door and locks was really an act of maintenance of the property upon written request made by Sylvia as one of the legitimate unit owners per the records of Pacific Plaza. He claimed that he was merely dragged to the family feud of the Ilusorios.

In a Resolution11 dated February 1, 2000, Prosecutor II Edgardo G. Hirang of the Office of the City Prosecutor of Makati City dismissed the charges against private respondents for lack of probable cause. He found that, according to the records of Pacific Plaza, Sylvia, who was alleged to have ordered the

opening of the door and the replacement of the locks of Penthouse Unit 43-C on November 3, 1999, being among the legitimate owners of and who had on several occasions visited the unit, had the authority to do so for the effective maintenance of the unit. He also found that the charge against Jovito had already become moot and academic considering the dismissal of the charges for robbery and qualified tres to dwelling.

Marietta’s motion for reconsideration of the Resolution was denied in an Order12 dated May 2, 2000.

Marietta elevated the case to the Department of Justice (DOJ) via a petition for review. However, in a Resolution13 dated August 27, 2004, then Acting DOJ Secretary Ma. Merceditas N. Gutierrez denied the petition on the ground that there was no showing of any reversible error on the part of the Office of the City Prosecutor of Makati City to warrant the reversal of his dismissal of the criminal charges. The motion for reconsideration of the Resolution dated August 27, 2004 was, likewise, denied in a Resolution14 dated February 11, 2005.

Marietta went to the Court of Appeals by means of a petition for review on certiorari under Rule 65 of the Rules of Court claiming grave abuse of discretion on the part of both the Office of the City Prosecutor of Makati City and the DOJ in dismissing, for lack of probable cause, the charges she lodged against private respondents.

The Court of Appeals, in its Decision dated November 23, 2005, denied the petition for lack of merit. Marietta moved to reconsider the said Decision, but the motion was, likewise, denied in the Resolution dated February 14, 2006. Hence, this petition.

Petitioner posits that this Court should grant the petition because –

The Public Respondents erred in upholding the resolution of the Investigating Prosecutor Edgardo G. Hirang, which dismissed the complaints for Robbery, Qualified Tres to Dwelling, and Violation of P.D. [1829], considering that:

A. The evidence on record sufficiently established probable cause that [the] said crimes were committed and that the private respondents were probably guilty thereof.

B. The petitioner, together with EKI (Erlinda), Ramon K. Ilusorio, and Shereen K. Ilusorio, were the duly constituted officers of LAKERIDGE and that the lawful occupant of Penthouse Unit 43-C of Pacific Plaza Condominium was EKI, who in turn entrusted the same to petitioner in her absence.

C. The self-serving assertions of private respondents that they were representatives of LAKERIDGE did not authorize them to break open the doors of Penthouse Unit 43-C of Pacific Plaza Condominium and gain entry thereto.15

We disagree.

In essence, Marietta ascribes reversible error in the Office of the City Prosecutor’s finding of lack of probable cause against private respondents for robbery, qualified tres to dwelling, and for violation of P.D. No. 1829, which was uniformly affirmed by the DOJ and the Court of Appeals.

Probable cause has been defined as the existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong suspicion, that the person charged is guilty of the crime for which he is sought to be prosecuted. Being based merely on opinion and reasonable belief, it does not import absolute certainty.16 A finding of probable cause merely binds over the suspect to stand trial; it does not impose a guilty verdict. However, it requires more than bare suspicion.17

The conduct of preliminary investigation for the purpose of determining the existence of probable cause is executive in nature. The right to prosecute crime is reposed in the executive department of the government primarily responsible for the faithful execution of the laws of the land. This right vests the government prosecutor with a wide latitude of discretion on what and whom to charge upon proper finding of probable cause, depending on a smorgasbord of factors best appreciated by him. The preliminary investigation also serves to secure the innocent against hasty, malicious, and oppressive prosecution, and to protect him from an open accusation of a crime, and the expense and anxiety of a public trial. It likewise protects the State from useless and expensive trials, if unwarranted.18

Thus, a prosecutor, by the nature of his office, is under no compulsion to file a particular criminal information where he is convinced that there is not enough evidence to its averments, or that

the evidence at hand, to his mind, necessarily leads to a different conclusion. While his findings are not absolute and are subject to judicial review, this Court generally adheres to the policy of non-interference in the conduct of preliminary investigations, particularly when the said findings are well-ed by the facts as established by the evidence on record.19

Findings of probable cause are essentially factual in nature. Accordingly, in assailing said findings on the contention that the prosecutor committed grave abuse of discretion, the petitioner clearly raises issues anchored mainly on the propriety or impropriety of the prosecutor’s appreciation of the facts. This Court is not duty bound to scrutinize anew established facts in a petition for review for we are not a trier of facts.20

In this case, we find no compelling reason to deviate from our policy of non-interference with the investigating prosecutor’s findings of absence of probable cause. It is itted by both parties that the ed owner of Penthouse Unit 43-C is Lakeridge. Aside from the allegation of Marietta, there is no sufficient evidence on record that Erlinda was indeed the lawful occupant of the unit. In fact, the letter dated October 7, 1999, by which she claimed Erlinda gave her authority to occupy, oversee, and secure Penthouse Unit 43-C, and belatedly received by the management of the Pacific Plaza on November 3, 1999, was signed by Erlinda "for LAKERIDGE" without the appropriate resolution of Lakeridge’s board of directors to it. Likewise, Marietta is not armed with any board resolution authorizing her to institute the criminal charges against the private respondents.

Furthermore, Sylvia and Cristina were able to establish by competent evidence that they were then the Vice-President and the Assistant Vice-President of Lakeridge, respectively. As such officers, they would, ostensibly, have the right and authority to freely enter and perform acts of maintenance of Penthouse Unit 43-C. The right could include breaking open the door and replacing its locks, apparently due to loss of the keys.

Be that as it may, we still take time out to examine the pertinent provisions of the Revised Penal Code on robbery and qualified tres to dwelling, and the violation of P.D. No. 1829 referred to by Marietta in her Complaint-Affidavit which read as follows:

Art. 293. Who are guilty of robbery.—Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of any person, or using force upon anything shall be guilty of robbery.

Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship.—Any armed person who shall commit robbery in an inhabited house or public building or edifice devoted to religious worship, shall be punished by reclusion temporal, if the value of the property taken shall exceed 250 pesos, and if –

(a) The malefactors shall enter the house or building in which the robbery was committed, by any of the following means:

1. Through an opening not intended for entrance or egress.

2. By breaking any wall, roof, or floor, or breaking any door or window.

3. By using false keys, picklocks, or similar tools.

4. By using any fictitious name or pretending the exercise of public authority.

Or if –

(b) The robbery be committed under any of the following circumstances:

1. By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle.

2. By taking such furniture or objects away to be broken or forced open outside the place of robbery.

Art. 280. Qualified tres to dwelling.—Any private person who shall enter the dwelling of another against the latter’s will, shall be punished by arresto mayor and a fine not exceeding 1,000 pesos.

If the offense be committed by means of violence or intimidation, the penalty shall be prision correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos.

The provisions of this article shall not be applicable to any person who shall enter another’s dwelling for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person, nor shall it be applicable to any person who shall enter a dwelling for the purpose of rendering some service to humanity or justice, nor to anyone who shall enter cafes, taverns, inns, and other public houses, while the same are open.

Presidential Decree No. 1829:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

xxxx

(b) altering, destroying, suppressing, or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution, and conviction.1âwphi1

We hold that the evidence adduced does not a finding of probable cause for the offenses defined in the provisions cited above. Marietta failed to prove, by competent evidence, that: (1) Penthouse Unit 43-C was the dwelling place of Erlinda; (2) she has authority over the said unit; (3) Sylvia and Cristina had no authority to enter the unit and conduct acts of maintenance thereon; and (4) Sylvia

and Cristina were armed when they effected entrance. Based on these circumstances, the charges of robbery and qualified tres to dwelling must inevitably fail. Perforce, the charge against Jovito for violation of P.D. No. 1829 should also be dismissed.

We reiterate that Marietta, as the complainant in the criminal charges filed before the Office of the City Prosecutor of Makati City, has the burden to prove the allegations in her Complaint-Affidavit by convincing evidence to warrant the indictment of private respondents. Unfortunately, she failed to discharge this burden. Thus, we cannot fault the investigating prosecutor for dismissing the criminal charges, especially after the dismissal was uniformly affirmed in toto by the City Prosecutor, the Secretary of the DOJ, and the Court of Appeals.

WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision of the Court of Appeals, dated November 23, 2005, and the Resolution dated February 14, 2006 in CA-G.R. SP No. 89331, are AFFIRMED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice