Republic of the Philippines

Regional Trial Court

8th Judicial Region
Branch 30
Basey, Samar

THE PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x

JUDICIAL AFFIDAVIT

Witness:

BENJAMIN EPE, of legal age, Filipino, a resident of Sta. Rita, Samar.

Examining Lawyer:
RARA LALA
Assistant Prosecutor I
Office of the City
Prosecutor
Examining Lawyer

ATTY. AGERICO AVILA

Prosecutor
Office of the Provincial Prosecutor

Place of Examination:
Office of the Provincial Prosecutor
Arteche Blvd, Catbalogan City Proper
Catbalogan City, 6700 Samar

Formal Offer: Your honor, we are offering the testimony of the witness, BENJAMIN EPE
to prove that:

1. He is an accredited Brgy. Electrician of SAMELCO II since 1984.

 2. The fact that on January 8, 1998 at around 3 o’clock in the afternoon, while he
was in the yard of his house at Brgy. Santan, Sta. Rita, Samar, he met a bill
collector and meter reader of SAMELCO II, Robertson Roperez, who asked him
why the electric meter of the accused, ERLINDA CAVOSORA, of legal age and a
resident of Brgy. Santan, Sta. Rita, Samar. The meter that was situated at the
wall of the latter’s house was found out to be tilted.

3. The fact that Epe was not aware of the tampering, since he is not within his job
functions to inspect meters around the coverage of SAMELCO II.

4. The fact that at that time, Roperez was situated about one and a half (1 1/2
meters) from where the electric meter of the house of the accused and he saw
the electric meter tilted and the plate was not working.

5. The fact that Epe was able to asked the assistance of a photographer: Leonardo
Lusadio for the photo documentation of the circumstance. Epe accompanied the
latter to take a photograph of the electric meters in the house of the accused.
(Exhibit 1);

I, BENJAMIN EPE, of legal age, Filipino and a resident of Sta. Rita, Samar, after
having been duly sworn to in accordance with law, hereby states that:

I am answering the question propounded by the counsel, Atty. Agerico Avila of

Office of the Provincial Prosecutor fully conscious, that I am under oath and that I may
face criminal liability for false testimony or perjury.

This Judicial Affidavit is written in English, a language known and understood by

me and the examination and execution thereof were done at the Office of the Provincial
Prosecutor, Arteche Blvd., Catbalogan City.

This Judicial Affidavit shall serve as my direct testimony in this case.

1. Q: Do you swear to tell the truth and nothing but the truth?
A: I do.

2. Q; Are you aware that you may face criminal liability for false testimony or perjury
if you will not tell the truth?
A: I am.

3. Q: Please state your name, age address and occupation?

A: I am BENJAMIN EPE, 32 years old, and residing at Sta. Rita, Samar.

4. Q: Why are you here today?

A: To give my testimony, as an accredited Brgy. Electrician of SAMELCO II, on
the tilting of electric meter, initiated by the Erlinda Carvoso.

5. Q: Why did you say so?

A: On January 8, 1998, around 3 o’clock in the afternoon, while I was in the yard
in front of my house in Brgy. Santan, Sta. Rita, Samar, I met a fellow bill collector
and meter reader of SAMLECO II, Robertson Roperez. He then asked me why
the electric meter of the accused was tilted and the plate was not functioning.
 6. Q: How far were the both of you from the electric meter of the accused?
A: Very near for me to see the tilted meter. Approximately 1 ½ meters.

7. Q: How did you respond to Roperez?

A: I told him nothing as I did not know anything as it was not my job to inspect
meters. Roperez told me to check it out and asked me to look for a photographer.
I came back an hour later with Leonard Lusadio.

8. Q: Are you saying that it was only Robertson who first witnessed the tilting of the
electric meter?
A: Yes. And after, Robertson asked me to look for a photographer and I was able
to find one: Leonardo Lusadio. Then, the three of us, Roberson, Leonardo and I
went back to the house of the accused. Upon arrival, Leonardo took a
photograph of the tilted electric meter.

Affiant further sayeth naught.

IN WITNESS WHEREOF, I have hereunto set my hand this 4th of January 1999
in Catbalogan, Samar Philippines.

BENJAMIN EPE
Affiant

SUBSCRIBED AND SWORN to before me this 4th of January 1999 at Catbalogan,

Samar, Affiant exhibiting to me her Passport bearing No. SS12345678 issued on 8/9/12
and expiring on 8/8/17.

Doc No. ________;

Page No. _______ ;
Book No. _______;
Series of ________.

ATTESTATION

I hereby state, under oath, that I faithfully recorded the questions I asked and the
corresponding answers that the witness gave and that neither I nor any other
person present or assisting me has coached the witness regarding the latter’s
statement.

ATTY. AGERICO AVILA

Prosecutor
 

SUBSCRIBED AND SWORN to before me this _______________ at Catbalogan

Samar, Affiant exhibiting to me his driver’s license bearing No. N11-82-030573 expiring
on 09/08/2013.
 

Doc No. ________;

Page No. _______ ;
Book No. _______;
Series of ________.

Republic of the Philippines

Regional Trial Court
8th Judicial Region
Branch 30
Basey, Samar

THE PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x

JUDICIAL AFFIDAVIT

Witness:

AMALIA VINAS, of legal age, Filipino and a resident of Brgy. Santan, Sta. Rita, Samar

Examining Lawyer:
RARA LALA
Assistant Prosecutor I
Office of the City
Prosecutor
Examining Lawyer

ATTY. JO ANN BALAGA

Counsel for the accused

Place of Examination:
TDCT & Partners Law & Notarial Offices
Tacloban City

Formal Offer: Your honor, we are offering the testimony of the witness, AMALIA VINAS,
of legal age, a resident of Brgy. Santan, Sta. Rita, Samar to prove that:

1. The fact that around 1:00 o’clock in the afternoon on January 8, 1998, while she
was feeding the animals inside the accused’s abode, she heard the dog barking
angrily. So, she hurriedly went outside the house.

2. The fact that she saw Benjamin Epe moving the electric meter situated outside
the house near the window and was about to pull it.

3. The fact that she asked Benjamin Epe on the reason of the moving of the meter
and the latter responded with, “Something’s wrong.”

4. The fact that, after a while, Benjamin Epe left and came back with a
photographer Leonardo. Leonardo then took a picture of the tilted meter.

I, AMALIA VINAS, of legal age, Filipino and a resident of Sta. Rita, Samar, after
having been duly sworn to in accordance with law, hereby states that:

I am answering the question propounded by the counsel of ATTY. JO ANN

BALAGA of TDCT & Partners Law & Notarial Offices fully conscious, that I am under
oath and that I may face criminal liability for false testimony or perjury.

This Judicial Affidavit is written in English, a language known and understood by

me and the examination and execution thereof were done at the TDCT & Partners Law
& Notarial Offices, Tacloban City.

This Judicial Affidavit shall serve as my direct testimony in this case.

9. Q: Do you swear to tell the truth and nothing but the truth?
A: I do.

10. Q; Are you aware that you may face criminal liability for false testimony or perjury
if you will not tell the truth?
A: I am.

11. Q: Please state your name, age address and occupation?

 A: AMALIA VINAS, 24 years old, Filipino and a resident of Brgy. Santan, Sta.
Rita, Samar

12. Q: Do you know Benjamin Epe?

A: Not really. But there was a time, I saw him moving the electric meter at around
1 o’clock in the afternoon on January 8, 1998. I asked him why he was moving it
as there was not something wrong with it.

13. Q: Aside from Benjamin Epe, were there others?

A: Yes. Benjamin was accompanied by the photographer Leonardo, who took
pictures of the meter.

14. Q: Do you know the accused?

A: Yes. I live with her under one roof in Brgy. Santan, Sta. Rita, Samar.

15. Q: Where was she during the incident?

A: She was at the school, but I told her about the tampering incident at home at
around 6:30 o’clock in the evening. The next day, the Evangeline called out
Benjamin Epe, asking him why the latter touched the meter, being someone not
from SAMELCO.

Affiant further sayeth naught.

IN WITNESS WHEREOF, I have hereunto set my hand this 31st of January 1999
in Tacloban City, Philippines.

AMALIA VINAS
Affiant

SUBSCRIBED AND SWORN to before me this 31st of January 1999 at Tacloban City,
Affiant exhibiting to me her Passport bearing No. SS12395678 issued on 8/9/12 and
expiring on 8/8/17.

Doc No. ________;

Page No. _______ ;
Book No. _______;
Series of ________.

ATTESTATION

I hereby state, under oath, that I faithfully recorded the questions I asked and the
corresponding answers that the witness gave and that neither I nor any other
person present or assisting me has coached the witness regarding the latter’s
statement.

ATTY. JO ANN BALAGA

Counsel for the accused
 
SUBSCRIBED AND SWORN to before me this _______________ at Tacloban
City, Affiant exhibiting to me his driver’s license bearing No. N11-82-030573
expiring on 09/08/2013.
 

Doc No. ________;

Page No. _______ ;
Book No. _______;
Series of ________.
 Republic of the Philippines
Regional Trial Court
8th Judicial Region
Branch 30
Basey, Samar

THE PEOPLE OF THE PHILIPPINES, I.S. NO. 07-227

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x
COUNTER AFFIDAVIT

I, DELMACIO CEPEDA, JR., of legal age, and a resident of Catbalogan, Samar after
being duly sworn in accordance with law, hereby depose and state that:

1. I am the Systems Design and Development supervisor of SAMELCO II since

April 1997 and my duty is to operate the whole system including the electric
system of SAMELCO II, employed at the SAMELCO II in Catbalogan, Samar.
2. On January 29, 1998, my team, composed of Jose Abantao, Sinforoso Hornales
and Clodualda Lacaba (member of the board of directors of SAMELCO II) and I
were tasked by the electric company to inspect and serve the change meter
order at the residence of the accused, Erlinda Cavosora.
3. Upon service of the order and inspection, I noticed an irregularity to the electric
meter, whereby it was held in an upright position by a common nail on top of the
meter base and the meter could easily be tilted.
4. During inspection, I noticed that the meter was running at that time. But if the
same is being tilted, it immediately stop. The said tilting was being done in the
presence of the accused.
5. Afterwards, upon request of the two monthly billings from the accused, it was
evident that the kilowatt consumed by the meter was low, despite the numerous
appliances inside their house, of which was totally denied by the accused.

IN WITNESS WHEREOF, I have hereunto set my hand this 4th of February 1999
in Catbalogan, Samar Philippines.

DELMACIO CEPEDA, JR
Affiant

SUBSCRIBED AND SWORN to before me this 4th of January 1999 at Catbalogan,

Samar, Affiant exhibiting to me her Passport bearing No. SS1212678 issued on 8/7/12
and expiring on 8/6/17.

Doc No. ________;

Page No. _______ ;
Book No. _______;
Series of ________.
ATTESTATION
I hereby state, under oath, that I faithfully recorded the questions I asked and the
corresponding answers that the witness gave and that neither I nor any other person
present or assisting me has coached the witness regarding the latter’s statement.

ATTY. AGERICO AVILA

Prosecutor

SUBSCRIBED AND SWORN to before me this _______________ at Catbalogan

Samar, Affiant exhibiting to me his driver’s license bearing No. N11-82-030573 expiring
on 09/05/2013.

Doc No. ________;

Page No. _______ ;
Book No. _______;
Series of ________.

Republic of the Philippines

Department of Justice
OFFICE OF THE PROVINCIAL PROSECUTOR
Catbalogan, Samar
THE PEOPLE OF THE PHILIPPINES,
Plaintiff I.S. NO. 07-227

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x

RESOLUTION

The accused, Erlinda Cavosora, was charged before the Regional Trial Court of Basey,
Samar, Branch 30, with the crime of Theft, in an Information, which reads as follows:

That sometime on the 8th of January, 1998, up to 30th of January 1998 and the
years prior thereto from 1995 to 1997, at the municipality of Sta. Rita, Province of Samar,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused,
with deliberate intent to gain, did then and there, willfully, unlawfully and feloniously steal
electric current belonging to and without the consent of Samar Electric Cooperative II
(SAMELCO II) by interfering and purposely tilting the electric meter of her house, to stop
the recording of the electric consumption, valued at FORTY FOUR THOUSAND NINE
HUNDRED FORTY FOUR PESOS AND SEVENTY NINE CENTAVOS (P 44, 944.79),
Philippine currency, excluding interest and penalties to the damage and prejudice of said
public utility (SAMLECO II) in the aforestated amount which owns and distributes electric
power for a fee.

In the separate affidavits of witnesses, Benjamin Epe, who admitted that he was an
accredited Brgy. Electrician of SAMELCO II since 1984, said that on January 8 at
around 3’ o clock in the afternoon, while he was in the yard of his house at Brgy.
Santan, Sta. Rita, Samar, he met Robertson Roperez, a bill collector and meter reader
of SAMELCO II. In this meetup, Roperez inquired at Epe why the electric meter of the
accused was titled and the plate was not functioning. He responded to Roperez that he
did not know why the electric meter in the house of the accused was tilted since it is not
his job to inspect the meters. Robertson, then, told him to look for a photographer and
he was able to find one in Leonardo Lusadio. Lusadio, accompanied by Epe, went to
the house of the accused and took a photograph (Exhibit 1) of the titled electric meter
and the nonfunctioning plate.

The defense of the accused is complete denial. To prove her defense, witness Amalia
Vinas testified that on the same day, at around 1:00 o’clock in the afternoon, while she
was feeding animals inside the house of he accused, she saw Benjamin Epe moving
the electric meter outside the near and was about to pull it. Upon seeing Epe in the act,
Vinas asked Epe as to his whereabouts and the latter said that there was something
wrong and left and he returned an hour after, taking pictures of the alleged tilted meter.

In another affidavit of Engr. Dalmacio Cepeda, the Systems Design and Development
Supervisor of SAMELCO II, he further testified that on January 29, 1998 at around
12:30 o’clock in the afternoon, he, together with his team from SAMELCO II, proceeded
to the house of the accused to serve the change of meter order, also after invitation of
the accused to her house. Upon arrival thereat, they inspected her electric meter and
found out that her kilowatt meter was held in an upright position by a common nail on
top of the meter base and noticed that the meter could easily be tilted to the position. In
the presence of the accused, they tilted the meter and it stopped running.
After inspection, the accused also produced two (2) monthly billings and the team
noticed her low kilowatt consumption despite of the numerous appliances inside her
home, to include the water pump and electric lights.

ANALYSIS/ FINDINGS AND RECOMMENDATIONS

The facts of the case before us fall under the crime of theft, which is punished under
Article 308 of the Revised Penal Code, which provides, to wit:

Art. 308. Who are liable for theft – Theft is committed by 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 .

In the instant case, there exists the essential elements of the crime of theft, namely: (1)
the taking of personal property; (2) the property belongs to another; (3) the taking away
was done with the intent to gain; (4) the taking away was done without the consent of
the owner; and (5) the taking away is accomplished without violence or intimidation
against persons or force upon things.

With respect to the first and second elements, suffice it to state that electricity is indeed
a personal property, which can be subject of theft. Further, it is indubitable that the
stolen electricity belongs to SAMELCO II and not to accused-appellant

Anent to the third element, the animus lucrandi or intent to gain may be presumed from
the proven unlawful taking. In the case at bar, the act of accused in illegally tilting the
electric meter sufficiently gave rise to the presumption. The witness of the prosecution
also affirm to the act of tilting of the accused.

WHEREFORE, IN VIEW OF THE FOREGOING, it is most respectfully

recommended that Information for the crimes of theft be filed against the respondent
ERLINDA CAVOSORA.

Catbalogan City, February 10, 1999.

ATTY. AGERICO AVILA

Prosecutor

CC: Atty. Jo Ann Balaga

Tacloban City

Republic of the Philippines

Regional Trial Court
8th Judicial Region
Branch 30
 Basey, Samar

THE PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x

INFORMATION

The undersigned Public Prosecutor accused ERLINDA CAVOSORA, of the crime

of Theft committed as follows:

That sometime on 8th January 1993 up to 30th January 1998 and the years prior
thereto from 1995 to 1997 at the Municipality of Sta. Rita, Province of Samar,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with deliberate intent to gain, did then and there, willfully unlawfully,
feloniously steal electric current belonging to and without the consent of the Samar
Electric Cooperative II (SAMELCO II) by interfering and purposely cutting the electric
meter of her house, to stop the recording of electric consumption valued at FORTY-
FOUR THOUSAND NINE HUNDRED FORTY FOUR PESOS and SEVENTY NINE
CENTAVOS (P 44, 944.79), Philippine Currency, excluding interest and penalties to the
damage and prejudice of said public utility (SAMELCO II) in the aforestated amount
which owns and distributes electric power for a fee.

CONTRARY TO LAW.

Basey, Samar, 7 October 1998

ATTY. AGERICO AVILA

Prosecutor

WITNESSES:

BENJAMIN EPE LEONARDO LUZANDO

CERTIFICATION
      I hereby certify that a preliminary investigation was conducted in the above-entitled
case, and there is prima facie evidence that the crime of THEFT has been committed
and that the accused is probably guilty thereof.

                                         ATTY. AGERICO AVILA

Prosecutor

Republic of the Philippines

Regional Trial Court
 8th Judicial Region
Branch 30
Basey, Samar

THE PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x

I. PRELIMINARY MATTERS

At today’s hearing for arraignment and pre-trial conference, accused Erlinda

Cavosora as well as her counsel Atty. Jo Ann Balaga are present in court. Provincial
Prosecutor Agerico Avila and private prosecutor, Atty. Eduardo Polistico likewise
appeared. After having been informed of the nature of the accusation field against
her, voluntarily entered a plea of NOT GUILTY for the crime of Theft. Thereafter,
pre-trial conference proceeded and the parties took up the following matters:

II. SUMMARY OF THE CASE

Version of the Prosecution

Benjamin Epe, who admitted that he was an accredited Brgy. Electrician

of SAMELCO II since 1984, said that on January 8, 1998 at around 3’ o clock in
the afternoon, while he was in the yard of his house at Brgy. Santan, Sta. Rita,
Samar, he met Robertson Roperez, a bill collector and meter reader of
SAMELCO II. In this meetup, Roperez inquired at Epe why the electric meter of
the accused was titled and the plate was not functioning. He responded to
Roperez that he did not know why the electric meter in the house of the accused
was tilted since it is not his job to inspect the meters. Robertson, then, told him to
look for a photographer and he was able to find one in Leonardo Lusadio.
Lusadio, accompanied by Epe, went to the house of the accused and took a
photograph (Exhibit 1) of the titled electric meter and the nonfunctioning plate.

On January 29, 1998 at around 12:30 o’clock in the afternoon, Engr.

Dalmacio Cepeda, the Systems Design and Development Supervisor of
SAMELCO II, and his team of three from SAMELCO II proceeded to the house of
the accused to serve the change of meter order, also after invitation of the
accused to her house. Upon arrival thereat, they inspected her electric meter and
found out that her kilowatt meter was held in an upright position by a common
nail on top of the meter base and noticed that the meter could easily be tilted to
the position. In the presence of the accused, they tilted the meter and it stopped
running.

Version of the Defendant

 On January 8, 1998, at more or less 3 o’clock in the afternoon, Benjamin
Epe was at the yard of his house at Brgy. Santan, Poblacion, Sta. Rita,
Samar, when he noticed Robertson Roperez pass by his house and walking
towards the house of the accused, Erlinda Cavosora.

Upon reaching the house of herein accused, Roperez called on Epe, who
then came up to him. Roperez asked Epe why the meter of accused was
tilted. Seeing the subject electric meter of the accused which was located at
the wall of and near the window of her house, tilted and not functioning, Epe
replied that he does not know. Thereafter, Roperez told Epe to look for a
photographer. Upon finding a photographer, Leonardo Lusadio, Epe
accompanied said photographer and went to yard of accused to take a
photograph of the electric meter. While a photograph of the electric meter was
being taken, Lusadio was 1 ½ meters away from said electric meter, which
remained titled and not functioning.

On January 29, 1998, the accused received from Dalmacio Cepeda a

copy of the change meter order. Upon receipt of the order, the accused
invited Cepeda and his team of 4 from SAMELCO II to her house. Upon
arrival at the house, they observed that the electric meter could be easily
tilted and if tilted, the electric meter would stop running, and that the accused
possessed numerous appliances.

After inspecting the electric meter, Cepeda and his team requested the
accused to produce two monthly billings. It was discovered that the bills of the
regular kilowatt meter was low.

III. ISSUES TO BE TRIED

1. Whether or not the accused is guilty of theft under RPC 308.

IV. EVIDENCE FOR THE PARTIES

Evidence for the Prosecution

 Exhibit 1 – Photograph of the alleged tilted electric meter
Purpose: To show the proof of the titled electric meter as discovered
on January 8, 1998
 Exhibit 2 – Certificate of Accreditation of Mr. Benjamin Epe from
SAMELCO II
Purpose: To prove that AMELCO issued the Certificate of Accreditation
to Benjamin Epe authorizing him to wire house within the coverage
area of the Cooperative
 Exhibit 3- Official receipts of from the billing of two (2) months as
presented to Engr. Cepeda

Testimonial Evidence
 Exhibit 4- Judicial Affidavit of the witness, Benjamin Epe
Purpose: To prove that the witness personally saw the tilted electric
meter of the accused and to corroborate the evidence of the
Prosecution.

Evidence for the Defendants

  Exhibit 5 – List of Accredited Electricians of SAMELCO II
Purpose: To prove that in the list of accredited electricians that
Benjamin Epe is not included as an accredited electrician in Sta. Rita,
Samar, contrary to the above-mentioned Certificate of Accreditation
from SAMELCO II.

Testimonial Evidence of the Defendant

 ExhIbit 6 – Judicial Affidavit of Witness, Amalia Vinas
Purpose: To prove that witness personally saw Benjamin Epe touched
he electric meter of Erlinda Cavosora on January 8, 1998 and to
corroborate the material allegations of the private complainant and
other witnesses and shall also form part of the testimony of the
witnesses.

V. Trial Dates
Trial shall proceed as scheduled below, all at 8:30 A.M. and 2:00 P.M., for the
plaintiff or claiming party and for the defendant or defending party, to present
and terminate their evidence, respectively.

A. Schedule of Plaintiff’s Presentation of Evidence

Hearing Date
1. Testimony of Witness/es - April 20, 1999

B. Schedule of Defendant’s Presentation of Evidence

Hearing Dates
1. Testimony of Defendant - May 5, 1999
2. Testimony of Witness/es - May 10, 1999

The trial dates are final and intransferrable, and no motions for postponement
that are dilatory in character shall be entertained by the court. If such motions
are granted in exceptional cases, the postponement/s by either party shall be
deducted from such party’s allotted time to present evidence.

It is understood that the testimony of the witness should be completed on the

scheduled date of hearing allotted to said witness under the One-Day
Examination of Witness Rule.

The direct testimony of witnesses for the plaintiff shall be in the form of
judicial affidavits attached to the complaint and responsive pleadings. After
the authentication and identification of such affidavits, cross-examination shall
proceed immediately.

The court, however, has the discretion on whether or not to extend the
examination of witnesses for good cause shown, as long as the trial period
required under the Rules is maintained.

Postponement of presentation of the parties’ witnesses at a scheduled date is

prohibited, except if it is based on acts of God, force majeure or the duly
substantiated physical inability of the witness to appear and testify. The party
who caused the postponement is warned that the presentation of its evidence
must still be terminated within the remaining dates previously agreed upon.

Should the opposing party fail to appear without valid cause stated in the next
preceding paragraph, the presentation of the scheduled witness will proceed
with the absent party being deemed to have waived the right to interpose
objections and conduct cross-examination.

The contents of this pre-trial order shall control the subsequent proceedings,
unless modified before trial to prevent manifest injustice.

The parties and their counsel are hereby notified hereof, and the court
shall no longer issue a subpoena to the parties present today. It shall be the
responsibility of parties and lawyers to notify their respective witnesses of the
scheduled appearance dates for the trial.

TARCELO A. SABARRE, JR.

JUDGE
 
 Republic of the Philippines
Regional Trial Court
8th Judicial Region
Branch 30
Basey, Samar

THE PEOPLE OF THE PHILIPPINES, I.S. NO. 07-227

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x

MOTION FOR RECONSIDERATION

COMES NOW, the complainant by the undersigned attorney and within the
reglementary period prescribed by the Rules of Court hereby files this motion for
consideration from the resolution rendered by the Honorable Court of Appeals on 15
April 2016 on the ground THAT:

The HONORABLE COURT ERRED in finding that the prosecution was able to
prove the elements in the crime of theft being charged against the accused;

If we turn to the statutory definition of theft under Article 308 of the Revised Penal
Code, its elements are spelled out as follows:

Article 308: Who are liable for theft - Theft is committed by 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.

Theft is likewise committed by:

1. Any person who, having no found lost property, shall fail to deliver the same
to the local authorities or to its owner;

2. Any person who, after having maliciously damaged, the property of another,
shall remove or make use of the fruits or object of the damage caused by him;
and;

3. Any person who shall enter an enclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather cereals, or other forest or
farm animals.

Indeed, we have long recognized the following elements of theft as provided for
in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation of person or
force upon things.
 At the outset, there was no taking that transpired in this case. Here, the
prosecution failed to establish how the act of taking was performed. What they
consistently and repeatedly want to impress to this Honorable Court is that the meter
attached to the wall of herein respondent is tilted or termed as “dancing meter”. The
prosecution did not establish how the act of taking was accomplished in this case. In
other words, the prosecution did not prove that there was unlawful taking of electricity in
this case.

Secondly, intent to gain was not established by the prosecution. Although intent
to gain is presumed from the unlawful taking of personal property belonging to another,
it does not apply in this case because the unlawful taking of the property was not
sufficiently proved. The presumption of intent to gain only applies when there is unlawful
taking which takes place upon voluntary and malicious taking of the property belonging
to another which is realized by the material occupation of the things whereby the thief
places it under his control and in such a situation as he could dispose of it at once
(People vs. Naval ) and in other case, even if he did not have an opportunity to dispose
of the same.

WHEREFORE, premises considered, it is most respectfully prayed that the

resolution rendered by the Honorable Court of Appeals on 15 January 2016
be SET ASIDE, REVERSED, RECONSIDERED and the decision of the RTC Branch 04
be reversed as well.

Other reliefs and remedies are likewise prayed for as may be just and equitable
under the premises.

This 31st day of December 1999 at Tacloban City, Philippines.

ATTY. JO ANN Y. BALAGA

Roll No. 09891
IBP No. 81293 – 09/08/2016 – Leyte
PTR – 98273 – 09/08/2016- Leyte
MCLE Compliance No. V2938712-10/20/2014
 Republic of the Philippines
Regional Trial Court
8th Judicial Region
Branch 30
Basey, Samar

THE PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x
ORDER

For resolution are petitioners Motion for Recosideration of the courts decision last April
16, 2016.

Here, the defendant raises the following grounds:

1. The prosecution did not prove that there was unlawful taking of electricity in this
case nor the prosecution failed to establish how the act of taking was performed.

Anent the first element , that there be taking of a personal property the Honoral
Supreme Court ruled that personal property as an element of theft, includes electricity
and gas because electricity, the same as gas, in a valuable article of merchandize
bough and sole like other personal property and is capable fo appropriate by another.
Hence, the said element is present in the case at bar.

It is likewise indubitable that the said property belongs to the private complainant Samar
Electric Cooperative (SAMELCO) II.

In the case at bar, the prosecution alleged that the electric meter in the residence of the
accused at Brgy. Santa, Sta. Rita, Samar was a “dancing meter” which means it is a
tilted meter.

IN VIEW WHEREOF, petitioner’s Motion for Reconsideration are denied for lack of
merit.

SO ORDERED.

TARCELO A. SABARRE, JR.

JUDGE
 Republic of the Philippines
Regional Trial Court
8th Judicial Region
Branch 30
Basey, Samar

THE PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus-

ERLINDA CAVOSORA THEFT

Accused
x----------------------------------------------x

NOTICE OF APPEAL

ACCUSED, by counsel, unto this Honorable Court respectfully pleads:

1. That accused hereby files this Notice of Appeal from the decision of
the Honorable Court in the above-entitled case dated April 6, 2016 and
appeals the same to the Honorable Court of Appeals.
2. That accused received the copy of the said decision on April 15, 2015.

Wherefore, premises considered it is respectfully prayed of this Honorable Court

that Appeal in this case be allowed.

Other relief as may be just proper and equitable are likewise prayed for.

April 28, 2016, Tacloban City.

ATTY. JO ANN Y. BALAGA

Counsel for the Accused
Roll No. 09891
IBP No. 81293 – 09/08/2016 – Leyte
PTR – 98273 – 09/08/2016- Leyte
MCLE Compliance No. V2938712-10/20/2014