Criminal Law, Legal Ethics, Remedial Law

HORCA v. PEOPLE GR No. 224316, Nov. 10, 2021 J. Hernando – Principal distinction between Theft and Estafa, Verification and Certification of Non-Forum Shopping,  The 2004 Rules on Notarial Practice


Petitioner Elizabeth Horca was charged with the crime of Theft. 

Sister Linda Jo Reynolds, a member of the Sisters of Providence, which is a religious congregation of women of the Roman Catholic Church, claimed that she procured the services of petitioner to be the group’s travel agent for a trip to Rome, Italy

Sister Reynolds ordered from petitioner 19 airline tickets and issued two BPI checks amounting to P502,813.25 each, or in the total amount of P1,005,626.50, as payment therefor. 

Although the agency, through Horca, acknowledged and issued an official receipt for the payment of the tickets, Sister Reynolds only received four tickets which could not be used because the flight covered by the said tickets was canceled. 

Sister Reynolds made several demands for petitioner to return the amount of P1,005,626.50.However, despite her promise to pay back Sister Reynolds the full amount, petitioner was only able to return P90,000.00, thus, prompting the nun to file the complaint before the RTC.

The RTC rendered its Decision finding the accused HORCA guilty beyond reasonable doubt of the crime of Theft.

On appeal, the CA affirmed the ruling of the RTC.

Petitioner’s Motion for Reconsideration was denied.

Hence, this petition.


Whether petitioner is guilty beyond reasonable doubt of the crime of Theft.


Before proceeding to the merits of the case, this Court deems it necessary to discuss certain procedural matters.

First, the Verification and Certification of Non-Forum Shopping attached to the petition is defective. 

Having signed and prepared the instant petition, petitioner’s counsel, Atty. Ajay Noreen D.S. Reyes, is disqualified from notarizing the Verification portion of the petition. 

The 2004 Rules on Notarial Practice clearly 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. 

Given that the petition lacks a proper verification, it ought to be treated as an unsigned pleading.

Second, it bears stressing that a petition for review on certiorari under Rule 45 is limited only to questions of law. Factual questions are beyond the purview of this mode of review. 

Well-settled is the general rule that the jurisdiction of this Court in cases brought before it from the CA is limited to reviewing errors of law. 

In the case at bar, the petition raises not only questions of law but also of facts. This Court is being asked to analyze or weigh all over again the evidence already considered in the proceedings below. 

On this score alone, the petition is dismissible.

Notwithstanding the foregoing, this Court is inclined to adopt a liberal stance and decide the present petition on its merits rather than on a procedural technicality. In any rate, an appeal in a criminal case opens the entire case for review.

At the outset, We reject petitioner’s contention that the crime charged should have been estafa and not theft.

As early as U.S. v. De Vera, the Court has consistently ruled that not all misappropriation is 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.

Horca was properly charged with the crime of Theft because she was merely entrusted with the material or physical possession of the sum of money which she was supposed to use for the purchase of the 19 airline tickets. 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 petitioner.

In any case, this Court rules to acquit Horca based on reasonable doubt.

Under Article 308 of the RPC, the crime of theft is committed when the following elements concur: 

(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 the consent of the owner; and 

(5) the taking be accomplished without the use of violence, intimidation, or force upon persons or things.

In the case at bar, We find that there is 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, an internal act which can be established through the overt acts of the offender and can be presumed from the unlawful taking. 

In the case before Us, however, the prosecution failed to adduce any concrete evidence which would show that Horca had taken the cash for her own personal gain.

After a judicious scrutiny of the records, We find the petition to be impressed with merit and accordingly acquit Horca of the crime charged.

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