A FENCE MAY BE PROSECUTED
UNDER THE RPC OR PD 1612
The state may thus choose to prosecute him either under the RPC or PD NO. 1612 although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and PD No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. (supra)
MERE POSSESSION OF STOLEN ARTICLE
PRIMA FACIE EVIDENCE OF FENCING
Since Sec. 5 of PD NO. 1612 expressly provides that “mere possession of any good, article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing” it follows that the accused is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption does not offend the presumption of innocence enshrined in the fundamental law.
DISTINCTION BETWEEN
FENCING AND ROBBERY
The law on fencing does not require the accused to have participation in the criminal design to commit or to have been in any wise involved in the commission of the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. (People v De Guzman, GR 77368).
Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything.
On the other hand, fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or shall be known to him, to have been derived from the proceeds of the crime of robbery or theft.
FENCING AS A CRIME INVOLVING
MORAL TURPITUDE.
In violation of the Anti-Fencing Law, actual knowledge by the “fence” of the fact that property received is stolen displays the same degree of malicious deprivation of one’s rightful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. (Dela Torre v. COMELEC 07/05/96)
Moral turpitude can be derived from the third element – accused knows or should have known that the items were stolen. Participation of each felon, one being the robber or the thief or the actual perpetrators, and the other as the fence, differs in point in time and degree but both invaded one’s peaceful dominion for gain. (Supra) Both crimes negated the principle of each person’s duty to his fellowmen not to appropriate things that they do not own or return something acquired by mistake or with malice. This signifies moral turpitude with moral unfitness.
In the case of Dela Torre, he was declared disqualified from running the position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections because of the fact of the disqualification under Sec. 40 of the Local Government Code, of persons running for elective position -“Sec. 40 Disqualifications – (a) Those sentenced by final judgement for an offense involving moral turpitude…”
Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted all the elements of the crime of fencing.
ESSENCE OF VIOLATION OF PD 1612,
SEC. 2 OR ANTI-FENCING
Caoili
VS
CA
GR 128369, 12/22/97
In the case of People v. Muere (G.R. 12902, 10/18/94), the third element was not proven. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located in Pasay Road, Makati. The said stereo was bought from Wynn’s Audio, an existing establishment. The court held that there is no proof that the spouses Muere, had knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. These actions are not indicative of a conduct of a guilty person.
On the same vein, the third element did not exist in the case of D.M. Consunji, inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M. Consuji, Inc., later found to be in premise of MC Industrial Sales and Seato Trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial, which is a known hardware store in Caloocan, thus they had no reason to suspect that the said items were products of theft.
The last element is that there is intent to gain for himself or for another. However, intent to gain need not to be proven in crimes punishable by a special law such as the Anti-Fencing Law. The crimes punishable by special laws are called “acts mala prohibita”. The rule on the subject is that in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v. People, as cited in US. V. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the Anti-Fencing Law. It is the act itself which constitutes the offense and not the motive or intent. Intent to gain is a mental state, the existence if which is demonstrated by the overt acts of the person. The mental state is presumed from the commission of an ulawful act. (Cunlao v. CA) again, intent to gain is a mental state, the existence of which is demonstrated by the overt acts as person, as the keeping of stolen items for subsequent selling.
The state may thus choose to prosecute him either under the RPC or PD No. 1612 although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and PD 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. (supra)
PD 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should he known to him to have been derived from the proceeds of the crime of robbery or theft
PROOF OF PURCHASE WHEN GOODS
ARE IN POSSESSION OF OFFENDER
NOT NECESSARY IN ANTI-FENCING
Caoili
VS
CA
GR 128369 12/22/97
The law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise to a presumption of fencing.
It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence.
