ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents.
R E S O L U T I O N
Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC.
The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) which provides as follows:
“Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
“(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence;
“(b) x x x x x x x x x.”
In disqualifying the petitioner, the COMELEC held that:
“Documentary evidence x x x established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court, x x x in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1,1990. Respondent appealed the said conviction with the Regional Trial Court x x x, which however, affirmed respondent’s conviction in a Decision dated November 14,1990. Respondent’s conviction became final on January 18,1991.
“x x x x x x x x x
“x x x, there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is ‘dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D.1612’ x x x, the nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude x x x.”
The second assailed resolution, dated August 28, 1995, denied petitioner’s motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well.
The two (2) issues to be resolved are:
1. Whether or not the crime of fencing involves moral turpitude.
2. Whether or not a grant of probation affects Section 40 (a)’s applicability.
Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification - i, e., “when the conviction by final judgment is for an offense involving moral turpitude.” And in this connection, the Court has consistently adopted the definition in Black’s Law Dictionary of “moral turpitude” as:
“x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.”
Not every criminal act, however, involves moral turpitude. It is for this reason that “as to what crime involves moral turpitude, is for the Supreme Court to determine”. In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in “Zari v. Flores,” to wit:
“It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited.”
This guideline nonetheless proved short of providing a clear-cut solution, for in “International Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute.
The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone.
Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as:
“a. x x x 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 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.”
From the foregoing definition may be gleaned the elements of the crime of fencing which are:
"1. A crime of robbery or theft has been committed;
“2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime;
“3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and [Underscoring supplied.]
“4. There is, on the part of the accused, intent to gain for himself or for another.”
Moral turpitude is deducible from the third element. Actual knowledge by the “fence” of the fact that property received is stolen displays the same degree of malicious deprivation of one’s rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the “fence” and the actual perpetrator/s of the robbery or theft invaded one’s peaceful dominion for gain - thus deliberately reneging in the process “private duties” they owe their “fellowmen” or “society” in a manner “contrary to x x x accepted and customary rule of right and duty x x x, justice, honesty x x x or good morals.” The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on “Human Relations” and “Solutio Indebiti,” to wit:
“Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”
“Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.”
“Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”
“Article 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.”
“Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.”
The same underlying reason holds even if the “fence” did not have actual knowledge, but merely “should have known” the origin of the property received. In this regard, the Court held:
“When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words ‘should know’ denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists.” [Italics supplied.]
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that “mere possession of any goods, x x x, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing”- a presumption that is, according to the Court, “reasonable for no other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft.” All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude.
Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioner’s conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. Clearly then, petitioner’s theory has no merit.
ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6,1995 and August 28,1995 are AFFIRMED in toto.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.
 Petition dated September 8,1995, p.1; Rollo, p. 3.
 COMELEC Resolution dated May 6, 1995; Rollo, p. 18.
 Resolution, id., pp. 1-2; Rollo, pp. 18-19.
 Motion for Reconsideration dated May 16, 1995, p. 2; Rollo, p. 23.
 Zari vs. Flores, 94 SCRA 317, 323 citing Tak Ng vs. Republic of the Phil., 41 Phil. 275; Court Administrator vs. San Andres, 197 SCRA 704; International Rice Research Institute vs. NLRC, 221 SCRA 760.
 International Rice Research Institute vs. NLRC, id. at p. 767 citing In Re: Victorio Lanuevo, 66 SCRA 245.
 Id,. at p. 323.
 Id. at p. 768.
 Section 2(a) of P.D. 1612 (Anti-Fencing Law).
 Dizon-Pamintuan vs. People, 234 SCRA 63, 72.
 Id., at p. 73.
 Id. at p. 74.
 Section 4, P.D. No. 768.
“SEC. 4. Grant of Probation.- Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced the defendant but before he begins to serve his sentence and upon his application, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best.
“x x x x x x x x x
 Heirs of the Late Francisco Abueg vs. Court of Appeals, 219 SCRA 82; Palo vs. Militante, 184 SCRA 395.