This Petition for Review on Certiorari^[1] under Rule 45 of the Rules of Court assails the February 6, 2015 Decision^[2] and June 9, 2015 Resolution^[3] of the Court of Appeals (CA) in CA-G.R. CR No. 36219 affirming the Januaiy 23, 2013 Judgment^[4] of the Regional Trial Court (RTC), Branch 33 of Pili, Camarines Sur in Criminal Case No. P-3806 which found petitioner Fernando Pante y Rangasa (Pante) guilty beyond reasonable doubt of the crime of Theft. The Factual Antecedents: An Information^[5] dated June 1, 2005 was filed before the RTC of Pili, Camarines Sur against petitioner Pante and his two minor co-accused, charging them with the crime of Theft under Article 308, par. 2, subparagraph (1) of the Revised Penal Code (RPC) as follows:

That [sometime] on December 11, 2004, in barangay Palestina, Pili, Camarines Sur, Philippines, and within the jurisdiction of the Honorable Court, the said accused, conspiring, confederating and helping one another, without the consent of the owner, nor force, violence or intimidation, after having found the amount of US$4,550.00 or (P254,800.00) and P27,000.00, belonging to Dawson D. Word, and without delivering the same to its owner or authority, and once in possession of said amount, with intent to gain, did then and there willfully, unlawfully and feloniously, convert the said amount for their own personal use and benefits, to the damage and prejudice of Dawson D. Word. ACTS CONTRARY TO LAW.^[6]

Upon arraignment, Pante and his two co-accused entered separate pleas of "not guilty." Version of the Prosecution: On December 10, 2004, Dawson Word (Word) dropped by the People's Mart in Naga City, Camarines Sur with his househelper, Angie Beroño (Beroño), to buy fish. He was carrying US$4,550.00 and P27,000.00 bundled together in a rubber band placed on his lap. Word gave Beroño P1,000.00 to buy fish and arranged his remaining money while waiting inside the car. When Beroño returned, Word placed the bundle of money on his lap between his legs and drove back to his apartment.^[7] He parked his car in front of his residence and forgot the money that he placed on his lap.^[8] Apparently, upon alighting from the car, the bundled money fell on the road near his vehicle. At about 5:30 a.m. the following morning, a bakery worker noticed a bundle of money lying on the ground near Word's car. Meanwhile, one of Pante's co-accused, who was riding his bike outside, also noticed the bundle of money and picked it up before going inside his house.^[9] At around 8:00 a.m., Word realized that the money that he had placed on his lap was missing.^[10] He began searching for it in his car but could no longer find it. With the help of his landlord, Word learned that Pante's minor co-accused picked up the bundled money near his car.^[11] On December 21, 2004, Word sought the help of the police in the recovery of his money. Upon investigation, it was found that Pante's minor co-accused was indeed the finder of the money. The police headed to the minor's residence where accused-minor admitted that he found the bundle of money under Word's car.^[12] He also averred that the money was shared among his other co-accused, who is a cousin and also a minor, Pante, and himself. His parents returned the US$1,300.00 to Word, as evidenced by the receipt^[13]signed by his father. On the same day, the police went to the house of the other accused- minor, who admitted getting US$500.00 but could no longer return the same because he already spent it.^[14] Thereafter, the police proceeded to the house of Pante, who also admitted that he received US$1,700.00. He was able to return US$300.00, P4,660.00, one unit of JVC component, and a gas stove with a tank. Pante also gave a receipt^[15] from Monton Hardware, where he bought construction materials. Seeing that some of the materials were already used, the police did not retrieve them anymore. Thereafter, all the money and items recovered from the three accused were returned to Word. Version of the Defense: The accused-minor testified that while riding his bike in the morning of December 11, 2004, he found 30 pieces of US$100 bills near Word's car, but no Philippine currency.^[16] He kept the money in his pocket and proceeded to deliver bread. Afterwards, he went to his co-accused cousin to ask him what to do with the money. While they were talking, Pante overheard their conversation. Being the only adult among them, Pante told them to get the money and proceed to the tree house. On their way to the tree house, Pante grabbed the money and counted it. Thereafter, he got 17 pieces of US$100 dollar bills for himself. His co-accused cousin received US$500.00 while he kept US$2,350.00. Pante went home with his share and never returned.^[17] The other accused-minor admitted that his cousin gave him US$500.00 on the same day Word lost his money. However, he gave it back to his cousin so he could return it to Word. On the other hand, Pante testified that on December 11, 2004 at around 6:30 p.m., he saw his two co-accused pass by the back of the bakery where he was working. They were carrying items like Playstation and new shoes. He asked them where they got the money to buy those things and learned that one of them found a bundle of dollar bills. He admitted receiving 10 dollar bills from his co-accused as his "balato." He kept the money for a few days then exchanged them to Philippine currency. He used the money to buy a JVC component, a gas stove with a tank, and a CD cassette.^[18] When police authorities came to his house on December 21, 2004 demanding return of the money, he told his wife to get the remaining US$300.00 and P4,660.00 and turned it over to them.^[19] Ruling of the Regional Trial Court: In its January 23, 2013 Judgment, the RTC found all three accused guilty beyond reasonable doubt of the crime of Theft. The evidence submitted by the prosecution proved that Word lost his money and that the accused-minor was the finder thereof, and who shared the cash he found with his co-accused cousin and Pante, the latter both knowing where the money came from. While the trial Court was convinced that Word lost dollar bills in the amount of US$4,450, the prosecution failed to prove that he also lost money in Philippine currency. It found that Pante got US$1,700.00, while the two accused-minor netted US$500.00 and US$2,350.00 each. The trial court noted that Pante even instructed the two minors not to return the money. Instead of encouraging them to return the cash, Pante got a portion for himself and headed home. Thus, the trial court did not give credence to Pante's position that he did not have any interest in keeping the money. Neither can his act of returning the money be considered voluntary since he already knew that Word was looking for his lost money and he only returned it upon the arrival of police authorities in his house. The dispositive portion of the RTC's Judgment^[20] insofar as petitioner Pante is concerned, reads:

WHEREFORE, in view of all the foregoing judgment, judgment is hereby rendered as follows: x x x x 3. Finding the accused FERNANDO PANTE, "GUILTY" beyond reasonable doubt of the crime of theft under Article 308, par. 1 of the Revised Penal Code and imposing the penalty of imprisonment ranging from 2 years 4 months and 1 day of prision correctional as minimum to 9 years and 1 day of prision mayor as maximum. He is ordered to pay the private complainant Dawson Word the sum of P59,120.00 as actual damages. SO ORDERED.^[21] (Emphasis in the original)

Aggrieved, Pante appealed^[22] the judgment of conviction before the CA, arguing that the prosecution did not prove his guilt beyond reasonable doubt. First, the prosecution did not present any proof of ownership over the money that Word had allegedly lost.^[23] Moreover, he argued that Word's knowledge of Pante's participation in the crime was based solely on his co-accused's averments^[24] which are only circumstantial evidence that cannot warrant his conviction. Lastly, Pante posited that there was no unlawful taking of the money on his part because the finder of the lost money was his co-accused and not himself. Not knowing where it came from, he averred that he did not have any intent to take money belonging to another.^[25] On the other hand, the People, through the Office of the Solicitor General (OSG), maintained that Pante's guilt was clearly established beyond reasonable doubt. No less than the petitioner himself admitted in open court that he knowingly received US$1,000.00 from the lost money.^[26] His co-accused also testified that Pante actually took US$1,700.00 and insisted they keep the money to themselves.^[27] In fact, Pante's act of returning the items purchased using Word's money, and the remaining cash amounting to US$300.00 and P4,660.00, support such allegations. The OSG further contended that Pante is considered a "finder in law" and guilty of Theft even if the original finder of the money was his co-accused because he failed to return the same despite knowledge that it was lost property.^[28] Ruling of the Court of Appeals: The CA, in its assailed February 6, 2015 Decision,^[29] affirmed the RTC's ruling. The dispositive portion thereof reads:

WHEREFORE, premises considered, the instant appeal is hereby DENIED. The Judgment dated January 23, 2013 of the Regional Trial Court, Branch 33, Pili, Camarines Sur finding accused-appellant Fernando Pante y Rangasa guilty beyond reasonable doubt of the crime of Theft defined and penalized under Article 308, par. 2, subpax. (1) of the Revised Penal Code and to pay private complainant Dawson Word the sum of P59,120.00 as actual damages is AFFIRMED WITH MODIFICATION in that appellant is ordered to suffer the penalty of imprisonment of 2 years 4 months and 1 day of prision correccional, as minimum to 13 years of reclusion temporal, as maximum. SO ORDERED.^[30] (Emphasis in the original)

Undeterred, Pante filed the instant the Petition for Review on Certiorari^[31] raising the following – Issues:

(A) WHETHER THE [CA] ERRED IN AFFIRMING THE CONVICTION OF THE PETITIONER FOR THE CRIME CHARGED DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. (B) WHETHER THE [CA] ERRED IN CONVICTING THE PETITIONER FOR THE CRIME CHARGED DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH THAT HE CONSPIRED WITH [HIS CO-ACCUSED] IN THE COMISSION OF THE CRIME OF THEFT.^[32]

Our Ruling

The Petition is unmeritorious. The CA correctly found that the prosecution sufficiently established Pante's guilt beyond reasonable doubt of the crime of Theft. Under Article 308, par. 2 (1) of the RPC, Theft is also committed by one's failure to deliver lost property to its owner or local authorities.^[33] In this kind of Theft, it is essential to prove: 1) the finding of lost property; 2) the failure of the finder to deliver the same to the local authorities or its owner.^[34] In the case at bar, both the trial court and the appellate court found that the prosecution witnesses were able to prove that Word lost his bundled money after alighting from his car in front of his residence and forgetting that he had placed them in between his legs. Such fact was corroborated by the prosecution witness who testified that he positively saw the accused-minor pick up the bundle of money under Word's car. In the same vein, all three accused admitted that it was the accused-minor who found the bundle of money in front of the bakery, which they later divided among themselves in the following manner: US$1,700.00 for Pante; and US$500.00 and US$2,350.00 for each of the two accused-minor. Despite knowing that the money did not rightfully belong to them, Pante encouraged the two minor accused to keep the money for themselves. He also appropriated the money for himself by buying various items such as a JVC component, gas tank, and construction materials. He only returned the remainder of the money to Word when police authorities showed up in his house.^[35] Time and again, this Court has held that greater weight is given to the positive identification of the accused by the prosecution witness than the accused's denial and explanation concerning the commission of the crime.^[36]Mere denials are only self-serving evidence whose evidentiary weight cannot outweigh the declaration of credible witnesses who testified on affirmative matters.^[37] In relation thereto, findings of facts of the trial court, its calibration of the testimonial evidence of the parties as well as its conclusion on its findings, are accorded high respect if not conclusive effect.^[38] This is because of the unique advantage of the trial court to observe, at close range, the conduct, demeanor and deportment of the witness as they testify. ^[39] This rule applies even more when such findings are affirmed by the appellate court. When the trial court's findings have been affirmed by the appellate court, said findings are generally binding upon this Court.^[40] Anent Pante's argument that he cannot be convicted for Theft because he is not the finder of the lost property, we are not persuaded. The question of whether criminal appropriation of found property can be committed by a person other than the one by whom the property is first found has been lengthily discussed and answered in the affirmative in People v. Avila,^[41] viz.:

From a comparison of the definitions given above it is obvious that the most fundamental notion in the crime of theft is taking of the thing to be appropriated into the physical power of the thief, which idea is qualified by other conditions, such as that taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without consent, — a distinction of no slight no sight importance. Upon these considerations it is evident that the taking and appropriation of a thing by one who finds it, knowing the same to have been misplaced or lost by the true owner, and with acknowledge of his identify, is legitimately within to the second subsection article 517 of the Penal Code the authors of the code have merely extended the general definition to a special case about which otherwise some doubt might have existed; and we cannot impute to them the clumsy mistake of having imported into the law of theft a form of offense foreign to that conception and which should properly have been incorporated in the chapter dealing with estafa. What has been said is of the greatest practical importance in dealing the problem now in hand, for it determines the proper point of view for the correct interpretation of the provision relating to the theft of found property; namely, the provision should be interpreted according to its true spirit and conformably with the doctrines that inform it. If we had discovered that this form of theft is really a species of estafa wrenched from its proper associations and artificially placed under a heading where it does not belong, much could be said in favor of a strict and literal interpretation; but when it is made to appear that the criminal misappropriation of found property is theft upon general principles of jurisprudence and not some other crime, it becomes obvious that the provision in question should be applied in accordance with its true spirit. What then is the meaning of the second subsection of article 517, in so far as it affects the case before us? The words used in the law are literally these: "Those are guilty of theft: ... 2. Who, finding a lost thing, and knowing who the owner is, appropriate it with intent to gain." The gist of this offense is the furtive taking and misappropriation of the property found, with knowledge of its true ownership; and the word "finding" (in Spanish, encontrandose) must not be treated as a cabalistic or sacramental first finder. The furtive appropriation of the found property, under the conditions stated, is the principal thing. In the case before us, the accused if not the actual finder, occupied towards the purse, from the time he took it into his hands, precisely the same relation as if he had picked it up himself. The purpose of the law is to protect the owner of the lost thing from appropriation by the person into whose hands it may come, with knowledge of its ownership. The accused was a finder in law, if not in fact; and his act in appropriating the property was of precisely the same character as if it had been originally found by him.^[42] x x x x The same writer then passes on to a proposition more directly connected with the case now before us, since it relates to the act of misappropriation by one who receives the property by voluntary substitution from the actual finder. Upon this the rule there formulated is this: "One who receives property from the finder thereof assumes, in legal contemplation, by voluntary substitution, as to the property and the owner, the relation occupied by the finder, placing himself in the finder's stead. In such a case, whether the person taking the property is guilty must be determined on the same principles that govern in the case of the actual finder." (17 R. C. L., 36.) In Allen vs. State (91 Ala., 19) some children found a pocketbook containing money and certain papers sufficient to identify the owner. Upon arriving home, the children delivered the purse to their father, who converted it of his own use. It was held that the accused was properly convicted and that his guilt was to be determined by the same principles that would have government if he had been the actual finder. In the course of the opinion the following language was used:

"... Finding it, and its delivery to the defendant by the finder, did not deprive the money, as to the owner of the character status of lost property; the ownership remained in him, drawing to it, constructively, the right of possession. When defendant took the money from his children, he knew it had been lost, and took it as such. It is manifest the children had no felonious intent, and properly delivered the money to their father for his disposition. By receiving it from his children, knowing it was lost, defendant assumed, in legal contemplation, by voluntary substitution, as to the money and the owner, the relation occupied by the finders, placing himself in their stead. Otherwise a person knowingly receiving lost properly from the finder, who had no intent to steal, with the felonious intent to appropriate it to his own use, escapes punishment. In such case, whether or not the person taking the money principles which govern in the case of the actual finder."^[43] (Emphasis supplied)

In fine, a "finder" under Article 308, par. 2(1) of the RPC is not only limited to the actual finder of the lost property^[44] since the gist of the offense is the furtive taking and misappropriation of the property found ^[45] Though not the actual finder, there is no dispute that Pante knew for a fact that his two co-accused minor did not own the subject money. He knew for a fact that his co-accused minor merely found the money along the road while the latter was delivering bread.^[46] Instead of returning the money, Pante convinced his co-accused minors not to return the money and to divide it among themselves. At that moment, Pante placed himself precisely in the situation as if he was the actual finder. Otherwise stated, petitioner was a "finder in law," if not in fact; and his act in appropriating the money was of precisely of the same character as if it had been originally found by him.^[47] His criminal intent to commandeer the money found was altogether clear at that point. The rationale for the "finder in law" concept is not difficult to fathom. It is precisely to protect the owner of the lost property in the event the lost property is transferred from one individual to another and to prevent the "finder in law" from escaping liability by claiming that he was not the actual finder thereof but was merely entrusted custody thereof by someone who had no intention to appropriate the same. "Otherwise a person knowingly receiving lost property from the finder, who had no intent to steal, with the felonious intent to appropriate it to his [or her] own use, escapes punishment. In such case, whether or not the person taking the money is guilty of [theft] must be determined on the same principles which govern in the case of the actual finder."^[48] Having obtained possession of Word's lost money, Pante had the opportunity and the obligation to return the lost property to its rightful owner or to the local authorities, but he unjustifiably refrained from doing so. Assuming for the sake of argument that he did not know that the money belonged to Word, Pante would still be held liable for Theft for failing to return the amount. This is because the RPC does not require that the thief must know the owner of the lost property.^[49] This is precisely why the subject penal provision gave the finder the option to return the lost property not only to the owner thereof but also to the local authorities.^[50] As to the second issue, this Court notes that petitioner raised the issue on conspiracy for the first time on appeal. On this point, we heed Rebadulla v. Republic,^[51] where it was pronounced that:

It is well-settled that no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is barred by estoppel.^[52]

Clearly, issues raised for the first time on appeal will not be entertained because to do so would be contrary to the principles of fairness and due process.^[53] As such, we agree with the findings of the RTC and the CA in finding petitioner guilty beyond reasonable doubt of the crime of Theft. However, this Court finds it necessary to modify the penalty to be imposed upon petitioner pursuant to Republic Act (RA) No. 10951,^[54] which became effective during the pendency of the case.^[55] The Act provides that its retroactivity shall be given effect insofar as it is favorable to the accused or person serving sentence by final judgment.^[56] Hence, it is applicable to petitioner's case. Given that the value involved in this case is P59,120.00, the penalty under Article 309 of the RPC, as amended by Section 81 of RA No. 10951, is prisión correccional in its minimum and medium periods^[57] which ranges from six (6) months and one (1) day to four (4) years and two (2) months.^[58]Applying the Indeterminate Sentence Law, the minimum term of the penalty shall be taken from the penalty next lower in degree ie., arresto mayor in its medium and maximum periods,^[59] or anywhere from two months and one day to six (6) months. Hence, petitioner must suffer a minimum indeterminate penalty of four months and 20 days of arresto mayor, as minimum to two (2) years, eleven (11) months, and ten (10) days of prision correccional, as maximum. Moreover, in accordance with prevailing jurisprudence, the amount of P59,120.00 shall earn interest at the rate of six percent (6%) per annum from finality of this Decision until fully paid.

WHEREFORE, the Petition for Review on Certiorari is DENIED for lack of reversible error on the part of the Court of Appeals. The February 6, 2015 Decision and June 9, 2015 Resolution of the Court of Appeals in CA-G.R. CR No. 36219 are hereby AFFIRMED WITH MODIFICATION in that petitioner Fernando Pante y Rangasa is sentenced to suffer the penalty of imprisonment of four (4) months and twenty (20) days of arresto mayor, as minimum, to two (2) years, eleven (11) months, and ten (10) days of prision correccional, as maximum. He is also ordered to pay private complainant the amount of P59,120.00 as actual damages, with interest at the rate of six percent (6%) per annum from date of finality of this Decision until fully paid.

SO ORDERED.

Leonen, (Chairperson), and Inting, JJ., concur, Delos Santos, J., please see separate concurring opinion. Rosario, J., on official leave.

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^[1] Rollo, pp. 10-27.

^[2] CA rollo, pp. 67-83; penned by Associate Justice Ramon R. Garcia and concurred in by Associate Justices Leoncia R. Dimagiba and Maria Elisa Sempio Diy.

^[3] Id. at 105-106.

^[4] Records, pp. 327-338; penned by Presiding Judge Marvel C. Clavecilla.

^[5] Id at 1-2.

^[6] Id. at 1.

^[7] TSN, July 18, 2008, pp. 5-6.

^[8] TSN, March 13, 2008, p. 26.

^[9] Id.

^[10] Id. at 27.

^[11] TSN, July 18, 2008, pp. 5-6.

^[12] Records, p. 11. See Joint Affidavit of SPO3 Jovito B. De Castro, SPO3 Pedro D. Corporal, and PO2 Herenerio Z. Burgos

^[13] Id. at 189.

^[14] TSN, October 3, 2008, pp. 4-6.

^[15] Records, pp. 190-191.

^[16] TSN, May 19, 2010, PP. 9-10.

^[17] TSN, July 1, 2010, pp. 3-12.

^[18] TSN, August 10, 2011, pp. 5-8.

^[19] Id. at 9-11.

^[20] Records, pp. 327-338; see also rollo, pp. 65-76.

^[21] Id. at 338.

^[22] CA rollo, pp. 18-32.

^[23] Id. at 31.

^[24] Id.

^[25] Id.

^[26] TSN, August 10, 2011, pp. 6-8.

^[27] TSN, July 1, 2010, pp. 3-12.

^[28] CA rollo, p. 58.

^[29] Id. at 67-83.

^[30] Id. at 82-83.

^[31] Rollo, pp. 10-27.

^[32] Id. at 17-18.

^[33] REVISED PENAL CODE, Art. 308, par. 2 (1).

^[34] People v. Rodrigo, 123 Phil. 310, 313 (1966).

^[35] TSN, August 10, 2011, p. 10.

^[36] Fantastico v. Malisce, Sr., 750 Phil. 120, 133-134 (2015), citing People v. Alvarado, 341 Phil. 725, 734 (1997).

^[37] Id. at 134.

^[38] Id. at 135.

^[39] Id., citing People v. Dumadag, 661 Phil. 664, 673 (2011).

^[40] People v. Mores, 712 Phil. 480, 494 (2013).

^[41] 44 Phil 720, 723 (1923).

^[42] Id. at 726-727.

^[43] Id. at 730-731.

^[44] Reyes, L., 2012. The Revised Penal Code Book II. 18th ed. p.747.

^[45] Id. citing People v. Avila, supra note 41.

^[46] TSN, October 5, 2011, p. 10.

^[47] People v. Avila, supra note 41 at 726-727.

^[48] Id. at 730-731.

^[49] Campanilla M., 2018. Criminal Law Reviewer II. p. 332 citing People v. Panotes, et. al, C.A., 36 O.G. 1008).

^[50] Id.

^[51] 824 Phil 982 (2018).

^[52] Id. at 994, citing S.C. Megaworld Construction and Development Corporation v. Engr. Parada, 717 Phil. 752, 760 (2013).

^[53] Punongbayan-Visitacion v. People of the Philippines, 823 Phil. 212, 222-223 (2018).

^[54] Republic Act No. 10951, entitled "An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty Is Based, and the Fines Imposed Under the Revised Penal Code, Amending for the Purpose Act No. 3815, Otherwise Known as "The Revised Penal Code," as Amended. Approved: August 27, 2019.

^[55] Republic Act No. 10951, Sec. 102 provides:

Section 102. Effectivity. — This Act shall take effect within fifteen (15) days after its publication in at least two (2) newspapers of general circulation.

^[56] Republic Act No. 10951, Section 100.

^[57] Republic Act No. 10951, Section 81 provides:

Section 81. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than Twenty thousand pesos (P20,000) but does not exceed Six hundred thousand pesos (P600,000).

^[58] The range of prision correccional in its minimum and medium periods is as follows: Minimum: Six months and one day to one year, eight months and 20 days. Medium: One year, eight months and 21 days to two years, 11 months and 10 days. Maximum: Two years, 11 months and 11 days to four years and two months.

^[59] The range of arresto mayor in its medium and maximum periods is as follows: Minimum: Two (2) months and one (1) day to three (3) months and ten (10) days. Medium: Three (3) months and eleven (11) days to four (4) months and twenty (20) days. Maximum: Four (4) months and twenty-one (21) days to six (6) month

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SEPARATE CONCURRING OPINION


DELOS SANTOS, J.: I concur with the ponencia ably-written by my esteemed colleague, Associate Justice Ramon Paul L. Hernando, and submit this Opinion to express my thoughts and stress on some particular points. Petitioner Fernando Pante y Rangasa (Pante) was charged with theft under Article 308, paragraph 2 (1), of the Revised Penal Code (RPC), which provides:

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

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; x x x x

Reading the above provision, it is noteworthy that it does not matter if the finder knows the true owner of the lost property for him to be convicted of the crime of theft for failure to return the same. As pointed out in the ponencia, the RPC does not require that the thief must know the owner of the lost property; the subject penal provision gives the finder the option to return the lost property not only to the owner thereof but also to the local authorities. This is an apparent change from the second subsection of Article 517 of the 1870 Codigo Penal, enforced in the Philippines prior to the effectivity of the Revised Penal Code in 1932, which requires that the finder must have knowledge of the identity of the true owner of the misplaced or lost thing,^[1] to wit: "Son reos de hurto: ... (2) Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intentión de lucro"^[2] or, if translated, says, "Those are guilty of theft:.... 2. Who, finding a lost thing, and knowing who the owner is, appropriate it with intent to gain."^[3] Relevant to the above discussion is the provision under Article 719 of the New Civil Code of the Philippines which sheds light on a situation where the finder of a lost property does not know the owner of the thing found. It provides:

Article 719. Whoever finds a movable, which is not treasure, must return it to its previous possessor. If the latter is unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the finding has taken place. The finding shall be publicly announced by the mayor for two consecutive weeks in the way he deems best. If the movable cannot be kept without deterioration, or without expenses which considerably diminish its value, it shall be sold at public auction eight days after the publication. Six months from the publication having elapsed without the owner having appeared, the thing found, or its value, shall be awarded to the finder. The finder and the owner shall be obliged, as the case may be, to reimburse the expenses.

As it stands now, the proper thing for a finder of a lost property of unknown owner, except hidden treasure, to do is to return or turn it over to the proper authority, who is the mayor of the city or municipality where the finding has taken place. Thereafter, the provision in Article 719 shall apply. Nevertheless, the failure, per se, to turn it over to the mayor does not constitute the crime of theft. People v. Rodrigo^[4] instructs that there must be a deliberate failure on the part of the finder to return the lost thing. Thus:

[U]nder paragraph 2, subparagraph (1), the elements are (1) the finding of lost property; and (2) the failure of the finder to deliver the same to the local authorities or to its owner. In this kind of theft intent of gain is inferred from the deliberate failure to deliver the lost property to the proper person, the finder knowing that the property does not belong to him.

As such, if a finder of lost thing of unknown owner turns it over to other local authorities or to any individual with the instruction or intention of returning it to the owner or to the proper authority, he could not be held guilty of the crime of theft. Such action negates the intent not to return the thing to the proper persons, much less an intent to gain or to appropriate the lost property. On the other hand, if the finder uses or appropriates the thing found or keeps the same for an unreasonable period of time, he is certainly guilty of theft. Such action constitutes a deliberate failure to deliver the lost property to the proper persons which is punished under Article 308 paragraph 2 (1). In this case, the actions of Pante clearly establish that there was a deliberate intention on his part not to return or turn over the lost dollar bills he received from his minor co-accused to the owner or to the proper authority. First, he knew that the dollar bills were not owned but were just found by his minor co-accused.^[5] Second, he took a portion of the lost dollar bills, kept the same for a few days, and exchanged them to Philippine Currency.^[6] Third, he instructed his minor co-accused not to return the money. Fourth, he used the money to buy JVC component, a gas stove with a tank, a CD cassette, and construction materials.^[7] Concomitantly, not only that Pante did not have the intention to return the lost property to the owner or to proper authorities, he likewise appropriated the same for his own gain and benefit. Thus, he is guilty of the crime of theft. Furthermore, I agree with the ponencia in rejecting Pante's argument that he cannot be convicted of theft because he is not a finder of the lost property. The ponente has appropriately cited the case of People v. Avila^[8] to elucidate that the finder under Article 308, par. 2 (1) is not limited to the actual finder or "finder in fact" of the lost property but also extends to the "finder in law" or one who receives the lost property from the actual finder and then appropriates the same or deliberately fails to return it to the owner or to proper authorities. I must stress, though, that for one to be considered a "finder in law" and be held guilty for the crime of theft, he must have received the lost property from the actual finder who has no intention to appropriate the said property. This is the scenario under which the ruling in People v. Avila (Avila) was arrived at by the Court. In that case, it was the driver of the carretela which actually found the purse containing money, gold coins, and jewels, left by his passenger inside the aforesaid carriage. He, however, handed the purse to the accused therein, who happened to be police officer, and asked him to deliver it to the owner. The accused therein, instead of returning it, appropriated the purse with all its contents. Accordingly, the Court pointed out the principal question in the said case to wit:

The principal question presented for consideration is one of law x x x. In other words, is this form of theft limited to the actual finder, using the word in its literal and most limited sense, or does it include misappropriation by any one into whose hands the property may be placed by the actual finder for delivery to the true and known owner? x x x

In ruling that the accused is guilty of theft, the Court in Avila held that "the accused occupied towards the purse, from the time he took it into his hands, precisely the same relation as if he had picked it up himself."^[9] It underscored that "the accused was a finder in law, if not in fact; and his act in appropriating the property was of precisely the same character as if it had been originally found by him."^[10] Citing English and American jurisprudence, the Court further ruled that "one who receives property from the finder thereof assumes, in legal contemplation, by voluntary substitution, as to the property and the owner, the relation occupied by the finder, placing himself in the finder's stead. In such a case, whether the person taking the property in guilty must be determined on the same principles that govern in the case of the actual finder."^[11] To further support its stand, the Court cited the American case of Allen v. State (Allen)^[12] and held:

In [Allen], some children found a pocketbook containing money and certain papers sufficient to identify the owner. Upon arriving home, the children delivered the purse to their father, who converted it to his own use. It was held that the accused was properly convicted and that his guilt was to be determined by the same principles that would have governed if he had been the actual finder. In the course of the opinion the following language was used:

* * * Finding it, and its delivery to the defendant by the finder, did not deprive the money, as to the owner, of the character or status of lost property; the ownership remained in him, drawing to it, constructively, the right of possession. When defendant took the money from his children, he knew it had been lost, and took it as such. It is manifest the children had no felonious intent, and properly delivered the money to their father for his disposition. By receiving it from his children, knowing it was lost, defendant assumed, in legal contemplation, by voluntary substitution, as to the money and the owner, the relation occupied by the finders, placing himself in their stead. Otherwise a person knowingly receiving lost property from the finder, who had no intent to steal, with the felonious intent to appropriate it to his own use, escapes punishment. In such case, whether or not the person taking the money is guilty of larceny must be determined on the same principles which govern in the case of the actual finder.

Based on the foregoing pronouncements and under the circumstances in which Avila was decided by the Court, and at the expense of being repetitive, I am of the opinion that for one to be considered a "finder in law" and be held guilty for the crime of theft, he must have received the lost property from the actual finder who has no intention to appropriate the same. I find this compelling to point out due to my humble opinion that if the actual finder already has the deliberate intention not to return the lost property, then he is the one who should be held liable as a principal in the crime for theft and that the persons who receive or profit from the stolen property should only be considered as a fence, which under our present laws may be punished as an accessory under paragraph 3 of Article 19 of the RPC^[13] to the crime of theft, or as a principal in the crime of fencing under Presidential Decree No. 1612,^[14] otherwise known as the "Anti-Fencing Law of 1979."^[15] Having said that, let me explain why Pante is properly convicted as a principal in the crime of theft and not merely considered as a fence. It may be recalled that when Pante's minor co-accused found the lost bundle of dollar bills, he went to his cousin, the other minor co-accused, and Pante.^[16] At this point in time, there was no deliberate intent yet on the part of said minor co-accused not to return the lost property to its owner or to the proper authorities as the said minor actual finder did not know yet what to do with the money.^[17] Then came Pante, who, being the only adult among the accused, got hold of the lost money, took 17 pieces of US$100.00 dollar bills for himself and instructed the two minor co-accused not to return the money.^[18] At that moment, by taking a portion of the lost money, Pante became a "finder in law" with respect to the amount he took from the actual finder-minor accused. He assumed, in legal contemplation, the relation occupied by the actual finder with respect to the property and the owner. This obliged him to return the lost and found property to the owner or to the proper authorities. Instead, Pante appropriated the aforesaid amount for himself which makes him liable as principal in the crime of theft. It may not be amiss to point out that it was only after Pante took possession of a portion of the lost property and only after giving instruction to the two minor co-accused to keep the money for themselves that the actual finder-minor accused's intention not to return the money became manifest and deliberate when he acceded to Pante's instruction and began appropriating the money he found. Based on the foregoing disquisitions, I vote to DENY the petition and AFFIRM the Decision of the Court of Appeals with MODIFICATION as to the penalty imposed against petitioner Fernando Pante y Rangasa, as discussed in the ponencia.

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^[1] See People v. Avila, 44 Phil. 720 (1923).

^[2] See Valenzuela v. People, G.R. No. 160188, June 21, 2007.

^[3] People v. Avila, supra note 1.

^[4] 123 Phil. 310 (1983).

^[5] Ponencia, p. 3.

^[6] Id. at 4, 6-7.

^[7] Id. at 7.

^[8] Supra note 1.

^[9] Id.

^[10] Id.

^[11] Id.

^[12] 91 Ala., 19.

^[13] Article 19. Accessories. - Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.

^[14] Section 2 of PD 1612 defines Fencing as "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 should be known to him, to have been derived from the proceeds of the crime of robbery or theft." The same Section also states that a Fence "includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing." (Cahulogan v. People, G.R. No. 225695, March 21, 2018)

^[15] In Dizon-Pamintuan v. People (G.R. No. 111426, July 11, 1994, 234 SCRA 63), the Court held that while a Fence may be prosecuted either as an accessory of Robbery/Theft or a principal for Fencing, there is a preference for the prosecution of the latter as it provides for harsher penalties.

^[16] Ponencia, pp. 3-4.

^[17] Id. at 6-7.

^[18] Id. at 3-4, 6-7, 9.