may be imposed shall not exceed 20 years. The maximum penalty should then be
termed as prision mayor or reclusion temporal as the case may be. In fine, the one year
period, whenever applicable, shall be added to the maximum period of the principal
penalty of anywhere from 6 years, 8 months and 21 days to 8 years.[41]
Applying the foregoing to the present case, the Court thus finds some need to
modify the penalty imposed by the trial court. Inasmuch as the amount involved in
Criminal Case No. 84-25822 is P27,925.00, the minimum penalty should be reduced to
one (1) year, eight (8) months and twenty-one (21) days of prision correccional and the
maximum penalty should be six (6) years eight (8) months and twenty-one (21) days
ofprision mayor minimum, aside from payment of actual damages of P27,925.00 in
solidum with co-accused Nemia Magalit Diu. The lowering of the penalty, being
favorable to Nemia Magalit Diu who did not interpose an appeal, should likewise be
applied as to her,[42] pursuant to Section 11, Rule 122 of the 1985 Rules of Criminal
Procedure.[43]
WHEREFORE, the appealed Decision of the Court of Appeals finding accusedpetitioner Emma Offemaria Marcelo and co-accused Nemia Magalit Diu guilty beyond
reasonable doubt of the crime of Estafa under Art. 315 (2) (a) of the Revised Penal
Code is hereby AFFIRMEDwith the modification that each of them is sentenced to an
indeterminate penalty of one (1) year, eight (8) months and twenty-one (21) days
ofprision correccional minimum period as MINIMUM, to six (6) years, eight (8) months
and twenty-one (21) days of prision mayor minimum period as MAXIMUM. Costs
against petitioner.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, and Quisumbing, JJ., concur.
Buena J., no part, ponente in CA decision.
[1]
Penned by Associate Justice Arturo M. Buena (now Associate Justice of the Supreme Court) and
concurred in by Associate Justices Angelina Sandoval Gutierrez and Conrado M. Vasquez, Jr., Third
Division, in CA-G.R. CR No. 13770, Rollo, pp. 21-31.
[2]
Penned by Judge Arsenio M. Gonong, Court of Appeals (CA) Rollo, pp. 92-108.
[3]
Spelled in TSN as Gasmet and Gasmin.
[4]
TSN, Mosquera, June 9, 1987, pp. 16-18.
[5]
Id., pp. 19-22.
[6]
Id., pp. 23-30.
[7]
Id., pp. 30-31.
[8]
Id., p. 31.
[9]
Exhibits A and A-1, Id., pp. 31-35.
[10]
Exhibits B and B-1.