People v. Nabong

[CA-G.R. No. 15936. July 17, 1975.] * THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee , vs . GENARO NABONG , accused and appellant . Payawal, Jimenez and Associates for accused and appellant. Solicitor General Estelito P . Mendoza, Assistant Solicitor General Guillermo C . Nakar, Jr . and Solicitor Manuel C . Chio for plaintiff and appellee. SYLLABUS UNLAWFUL POSSESSION OF UNTAXED IMPORTED CIGARETTES; FAILURE TO EXPLAIN POSSESSION, EFFECT; INTENT TO POSSESS NOT ESSENTIAL FOR CONVICTION. In a possession for unlawful possession of untaxed imported cigarettes (Sec. 174, National Internal Revenue Code, as amended by Rep. Act 4713), the failure of the accused to give a satisfactory explanation of his possession, makes him liable therefore. Intent to possess or animus possidendi is not essential for conviction, as accused is charged with violation of a special law. D E C I S I O N SERRANO , J p : This is an appeal from a judgment of conviction rendered by the Circuit Criminal Court of Manila in Criminal Case No. CCC-VI-1472 against Genaro Nabong for unlawful possession of untaxed imported cigarettes commonly known as "blue seal" cigarettes. Romeo Apostol and Genaro Nabong were charged with violation of Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713, in an information dated April 27, 1973, which pertinently reads: "That on or about March 24, 1973, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, did then and there wilfully and unlawfully have in their possession and under their custody and control, the following articles which are subject to specific tax, to wit: "768 Reams of Jackpot Blue Seal cigarettes the amount of said cigarettes including specific tax due the government is P13,640.00. * After trial, the lower court rendered judgment finding both accused guilty as charged. The dispositive portion of the decision reads: "WHEREFORE, accused Romeo Apostol y Huardy and Genaro Nabong y De Guzman are hereby found guilty beyond reasonable doubt of violation of Section 174, National Internal Revenue Code, as amended by Republic Act No. 4713 and the Court sentences each one of them to an indeterminate imprisonment ranging from FOUR (4) YEARS and ONE (1) DAY OF Prision Correccional as minimum to SIX (6) YEARS and ONE (1) DAY of Prision Mayor as maximum, each to pay a fine of P5,000.00 and to proportionately pay the costs. prLL "The cigarettes in question (Exhibits 'A', 'A-1' to 'A-7', 'B', 'B-1' to 'B-2', 'C', 'D', 'D-1') are hereby confiscated in favor of the State." The two accused appealed to this Court. However, on Apostol's motion to withdraw appeal, this Court dismissed the appeal of Apostol. Hence, we are here concerned only with the appeal of Nabong who insists on his innocence upon the facts and circumstance of the case. Around seven o'clock on the evening of November 24, 1973, Ensign Rolando Batiduan of the Philippine Coast Guard, the officer-in-charge of North Harbor Boarding Team, was on a routine inspection in the company of Petty Officer, First Class, Roque Clarin when they saw in the vicinity of Pier 2 a group of five porters loading cartons from the deck of the pier into an owner-type jeep. Aroused by their suspicious moves, Batiduan approached the driver of the jeep who was subsequently identified to be the appellant then seated beside his wife. When the officer asked what was being loaded, appellant failed to answer. Asked to show the contents of the cartons, appellant again ignored the question. Batiduan got angry and ordered the appellant to alight from the vehicle and open the cartons. The contents turned out to be blue seal (untaxed) Jackpot cigarettes. Upon being informed by appellant that his co-accused was the owner of the cigarettes, Batiduan directed Clarin to look for Romeo Apostol, who pointed to a certain Noli as the owner of the cargo. As Apostol failed to give Noli's address, appellant, his wife and he were taken to the Coast Guard Headquarters with the 15 cartons. llcd There the 15 cartons were opened in the presence of the three and they yielded Jackpot cigarettes without BIR stamps. An inventory was subsequently made (Exh. F) and the appraised values of the merchandise, including duties and taxes, amounted to P18,420.40 (Exh. K). The written statements of the appellant, his wife and Apostol were taken (Exhs. H, J and 3, respectively). All 15 cartons had external markings of cigarette brands, 7 bore "champion" markings (Exhs. A to A-7); 3 "Marlboro" (Exhs. B, B-1 and B-2); 2 "Jaguar" (Exhs. D and D-1) and the remainder "Kool" (Exh. C). Appellant insists that he should be exonerated because he din not know the contents of the cargo loaded in hi jeep. Upon a review of the evidence, we find appellant's explanation surrounding his possession of the untaxed imported cigarettes incredible. As the Solicitor General aptly observed: "The lone explanation of appellant that he did not know that the cartons being loaded on board his jeep contained blue seal or untaxed cigarettes cannot inspire belief. "First, appellant Nabong was all the time inside his jeep when the parties loading the fifteen cartons of blue seal cigarettes dispersed twice upon the approach of Batiduan and Clarin. "Second, that the jeep of the appellant bearing plate number 33-08 Pasay City was not a public utility jeep; "Third, that the appellant ignored Batiduan when first asked what he was loading; also when asked to show the contents of the cartons; "Fourth, that save for his claim that he was contracted by his co-accused Apostol, appellant did not even know the owner of the cartons he was loading, such less agreed on the price for loading said cartons." Appellant makes capital of the testimony of his co-accused Apostol that the latter knew the address of Noli and volunteered to Batiduan and Clarin to bring them to said place. We also points to Clarin's declaration tending to corroborate his testimony. Thus, the question posed is one of credibility of witnesses where the findings and conclusion of the trial court should not be disturbed on appeal in the absence of compelling reasons, considering that it was in a better position to decide the question, having heard the witnesses themselves and observed their demeanor on the witness stand. prcd The prosecution's principal witness Rolando Batiduan, a government employee then in the discharge of his official duties, had no motive to falsely incriminate the accused; hence, his testimony is entitled to more weight than that of the accused. In any event, ownership of the questioned cigarettes is of no moment, mere unexplained possession being sufficient. Thus, Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713, pertinently reads: "SECTION 174. Unlawful possession or removal of articles subject to specific tax without payment of tax . Any person who owns and/or is found in possession of imported articles subject to specific tax, the tax on which had not been paid in accordance with law or any person who owns and or is found in possession of imported tax exempt articles other than those to whom they are legally issued shall be punished by: xxx xxx xxx "The mere unexplained possession of articles subject to specific tax, the tax on which has not been paid in accordance with law, shall be punished under this section: Provided, however , That payment of the tax due after apprehension shall not constitute a valid defense in any prosecution for violation of this section." Since appellant failed to give a satisfactory explanation of his possession, he is liable under the law. Intent to possess or animus possidendi is not essential for conviction, an appellant is charged with violation of a special law. Considering that the appraised value, including duties and taxes, of the cigarettes in question was P18,420.40, the penalty imposable is a fine of not less than six hundred pesos nor more than five thousand pesos and imprisonment of not less than six months and one day nor more than four years, pursuant to paragraph 2 of Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713. We observe that the lower court qualified the imprisonment imposed on the accused as " prision correccional " and " prision mayor ." Such terms are peculiar to crimes punished by the Revised Penal Code and are not applicable to offenses penalized by special laws as in this case (People vs . Respocia, 107 Phil. 995). WHEREFORE, modified in the sense that appellant Genaro Nabong is hereby sentenced to suffer an indeterminate prison term ranging from six (6) MONTHS and ONE (1) DAY, as minimum, to TWO (2) YEARS, as maximum, and to pay a fine of TWO THOUSAND PESOS (P2,000.00), the judgment appealed from is hereby affirmed in all other respects. With cost. SO ORDERED. Gaviola, Jr. and Lim, JJ . , concur.