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CRIM 2 cases for sat

CRIM 2 cases for sat

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NICANOR NAPOLIS, Petitioner, vs. COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, Respondents. CONCEPCION, C.J.

: Appeal taken by Nicanor Napolis from a decision of the Court of Appeals affirming that of the Court of First Instance of Bataan, the dispositive part of which reads as follows: IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby finds the accused Bonifacio Malana, Nicanor Napolis and Apolinario Satimbre guilty beyond reasonable doubt of the crime of robbery in band and sentences Bonifacio Malanaas an accessory after the fact to suffer imprisonment of from six (6) months, arresto mayor,as minimum to six (6) years, prision correccional, as maximum and to indemnify the offended party, Ignacio Peñaflor in the sum of P80.00 with subsidiary imprisonment in case of insolvency but not to exceed one-third (1/3)of the principal penalty and the accused Nicanor Napolis and Apolinario Satimbre to suffer imprisonment of from ten (10) years and one (1) day, prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day, reclusion temporal, as maximum, both to indemnify the spouses Ignacio Peñaflor and Casimira Lagman in the sum of Two Thousand Five Hundred Fifty-Seven Pesos (P2,557.00) without subsidiary imprisonment in case of insolvency and all three to pay the proportionate part of the costs. The main facts, on which there is no dispute, are set forth in the decision of the Court of Appeals, from which We quote: At about 1:00 o'clock in the early morning of October 1, 1956, Mrs. Casimira Lagman Peñaflor , 47-year old wife of Ignacio Peñaflor , the owner of a store located at the new highway, Hermosa, Bataan, after answering a minor call of nature, heard the barkings of the dog nearby indicating the presence of strangers around the vicinity. Acting on instinct, she woke up husband Ignacio Peñaflor who, after getting his flashlight and .38 caliber revolver, went down the store to take a look. As he approached the door of the store, it suddenly gave way having been forcibly pushed and opened by 4 men, one of them holding and pointing a machinegun. Confronted by this peril, Ignacio Peñaflor fired his revolver but missed. Upon receiving from someone a stunning blow on the head, Ignacio fell down but he pretended to be dead. He was hogtied by the men. The fact, however, was that he did not lose consciousness (tsn. 5, I). The men then went up the house. One of the robbers asked Mrs. Casimira L. Peñaflor for money saying that they are people from the mountain. Mrs. Casimira L. Peñaflor , realizing the danger, took from under the mat the bag containing P2,000.00 in cash and two rings worth P350.00 and delivered them to the robber. Thereupon, that robber opened and ransacked the wardrobe. Then they tied the hands of Mrs. Casimira L. Peñaflor and those of her two sons. After telling them to lie down, the robbers covered them with blankets and left. The revolver of Ignacio, valued at P150.00, was taken by the robbers. The spouses thereafter called for help and Councilor Almario, a neighbor, came and untied Ignacio Peñaflor . The robbery was reported to the Chief of Police of Hermosa and to the Philippine Constabulary.
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Chief of Police Delfin Lapid testified that he went to the premises upon receiving the report of Councilor Almario and found owner Ignacio Peñaflor with a wound on the head (tsn. 23, I). The wardrobe was ransacked and things scattered around. It appears that the robbers bore a hole on the sidewall of the ground floor of the store and passed through it to gain entrance. According to Chief of Police Delfin Lapid, "they removed the adobe stone and that is the place where they passed through" (tsn. 24, I). In that same morning, policeman Melquiades Samaniego reported seeing suspicious characters passing through a nearby field and when the field was inspected, the authorities were able to locate a greasegun with 5 bullets and a pistol with 3 bullets (tsn. 24, I, testimony of Chief of Police)... It appears that, shortly after the occurrence, a criminal complaint for robbery in band was filed with the Justice of the Peace Court of Hermosa, Bataan. Named as defendants in the complaint, as subsequently amended, were Nicanor Napolis, Bonifacio Malana, Ben de la Cruz, Mauricio Anila, alias Mori, Jose Escabel, alias Pepe, Antonio Bededia, alias Toning, John Doe, alias Sommy Casimiro, Apolinario Satimbre, Paul Doe, et al. Napolis, Malana, Anila and Casimiro having waived their right to a preliminary investigation, the case, insofar as they are concerned, was forwarded to the Court of First Instance of Bataan, where the corresponding information was filed. As subsequently amended, by the inclusion, as defendants therein, of Antonio Bededia alias Toning, Domingo Flores alias Eko, Ben de la Cruz, Jose Escabel alias Pepe, Apolinario Satimbre, Carlito Veloso and Paul Doe, it is alleged in said information: . That on or about 1:00 o'clock in the early morning of October 1, 1956, in the Municipality of Hermosa, Province of Bataan, Philippines, and within the jurisdiction of this Honorable Court, the herein accused Bonifacio Malana, Nicanor Napolis, Ben de la Cruz, Mauricio Anila, Alias Mori, Jose Escabel, Alias Pepe, Antonio Bededia, alias Toning, John Doe, Alias Sommy Casimiro, Apolinario Satimbre, Carlito Veloso, Domingo Flores, Alias Eko and Paul Doe, by conspiring, confederating and helping one another, with the intent to gain and armed with a Grease Gun, Three (3) caliber .45 pistols and two (2) revolvers, did then and there willfully, unlawfully and feloniously, entered the dwelling of the spouses IGNACIO PEÑAFLOR and CASIMIRA L. PEÑAFLOR by boring a hole under the sidewall of the ground floor of the house and once inside, attack, assault and hit Ignacio Peñaflor with the handle of the Grease Gun causing him to fall on the ground and rendering him unconscious, tied his hands and feet and then leave him; that the same accused approached Casimira L. Peñaflor , threatened her at gun point and demanded money; that the same accused while inside the said house searched and ransacked the place and take and carry away the following cash money and articles belonging to said spouses Ignacio Peñaflor and Casimira L. Peñaflor , to wit: P2,000.00 in cash, Philippine Currency, One (1) ring (Brillante) valued at P350.00, One (1) licensed Commando Colt Revolver, Serial No. 532132 and One (1) Flashlight, valued at P7.00, to the damage and prejudice of said spouses in the total sum of TWO THOUSAND FIVE HUNDRED FIFTY-SEVEN PESOS, (P2,557.00) Philippine Currency.". At the trial of Malana, Napolis, Satimbre, De la Cruz, Anila, Casimiro and Flores, 1 the evidence for the prosecution consisted of the testimony of the offended parties, Ignacio Peñaflor and his wife Casimira Lagman Peñaflor , Provincial Fiscal Eleno L. Kahayon, Clerk of Court Pedro Aldea, Deputy Clerk of Court Eulogio C. Mina, Delfin Lapid, the Chief of Police of Hermosa, Bataan, and Lt. Luis Sacramento of the Constabulary and the affidavits, Exhibits A, B and C of defendants Napolis, Satimbre and Malana, respectively, admitting their participation in the commission of the crime charged.
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Mr. and Mrs. Peñaflor testified mainly on the robbery involved in the charge, whereas Fiscal Kahayon narrated the circumstances under which the affidavit Exhibit A was subscribed and sworn to before him by appellant Napolis; Police Chief Lapid and Lt. Sacramento dwelt on the investigations conducted by them and the circumstances under which said defendants made their aforementioned affidavits; and Clerk of Court Pedro Aldea and Deputy Clerk of Court Eulogio C. Mina explained how Exhibits B and C were subscribed and sworn to before them by defendants Satimbre and Malana, respectively.
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Upon the other hand, Napolis tried to establish an alibi. Testifying in his own defense, he would have Us believe that on October 1, 1956, he was in his house in Olongapo, Zambales, because of a tooth extracted from him by one Dr. Maginas.
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Defendant Satimbre, in turn, introduced his own testimony and that of his wife Engracia Mendoza. Satimbre claimed to be innocent of the crime charged and said that, although reluctant to sign Exhibit B, he eventually signed thereon, upon the advice of his wife Engracia Mendoza - who sought to corroborate him - and Mayor Guillermo Arcenas of Hermosa, in order that he may not be implicated in a robbery that took place in Balanga, Bataan, and that he could be sent back to his hometown, Hermosa, Bataan.
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Before the conclusion of the trial, the court of first instance of Bataan dismissed the case as against defendants Flores, Anila, Casimiro and De la Cruz.

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In due course, said court convicted Nicanor Napolis, Bonifacio Malana and Apolinario Satimbre, as above indicated. Said defendants appealed to the Court of Appeals which, however, dismissed Malana's appeal, and affirmed the decision of the Court of First Instance, insofar as Napolis and Satimbre are concerned. Satimbre did not appeal from said decision of the Court of Appeals, whereas Napolis alleges that said court has erred - . I. In affirming in toto the conviction of petitioner herein, of the crime charged based upon a lurking error of identity. II. In affirming the conviction of petitioner based upon an extra-judicial confession extracted through duress. III. In affirming the decision of the court a quo based upon the evidence on record adduced during the trial. IV. In deciding the case not in accordance with the provision of law and jurisprudence on the matter. Under the first assignment of error, it is urged that appellant has not been sufficiently identified as one of those who perpetrated the crime charged. In support of this contention, it is argued that the identification made by Mrs. Peñaflor was due to a picture of appellant taken by Lt. Sacramento from the files of the police in Olongapo, Zambales, and then shown to her, before he (appellant) was apprehended and then brought to her presence for identification. It is thus implied that Mrs. Peñaflor identified him in consequence of the suggestion resulting from the picture she had seen before he was taken to her for said purpose. The defense further alleges that she could not have recognized appellant herein, in the evening of the occurrence, because the same was dark, and the flashlight used by the malefactors was then focused downward.
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Appellant's pretense is, however, devoid of factual basis. The record shows that the authorities were notified immediately after the occurrence; that, soon after, peace officers - Police Chief Lapid and PC Lt. Sacramento - repaired to the house of Mr. and Mrs. Peñaflor and investigated them; that based upon the description given by Mrs. Peñaflor , one individual was apprehended and then presented to Mrs. Peñaflor , who said that he was not one of the thieves; that another person subsequently arrested and taken to Mrs. Peñaflor was, similarly, exonerated by her; that in the course of the investigation conducted by the Philippine Constabulary, Lt. Sacramento later brought Mrs. Peñaflor to the offices of the police force in Olongapo and showed her the pictures of police characters on file therein; that among those pictures, she noticed that of appellant herein, who, she believed, was one of the culprits; and that appellant was, therefore, arrested and brought to Mrs. Peñaflor , who positively identified him as one of the malefactors.
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In other words, Lt. Sacramento did not suggest to Mrs. Peñaflor , through the aforementioned picture of appellant, that he was one of the thieves. It was she who told Lt. Sacramento that said picture was that of one of the thieves. Besides, the fact that Mrs. Peñaflor readily exonerated the first two suspects, arrested by the authorities, shows that appellant herein would not have been identified by her if she were not reasonably certain about it.
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Then, again, she had ample opportunity to recognize appellant herein because it was he who demanded money from her and to whom she delivered P2,000 in cash and two (2) rings worth P350; it was, also, he who opened and ransacked her wardrobe; and it was he who tied her hands and those of her two sons. These series of acts, performed in her presence, consumed sufficient time - from 10 to 20 minutes - to allow her eyesight to be adjusted to existing conditions, and, hence, to recognize some of the robbers. The night was dark; but, there were two flashlights switched on, namely, that of her husband, and the one used by the thieves. Although the latter was, at times, focused downward, it had to be aimed, sometimes, in another direction, particularly when the money and rings were delivered to appellant herein, and when he opened and ransacked the wardrobe of Mrs. Peñaflor . Lastly, her testimony was confirmed by other circumstances presently to be mentioned, in connection with the consideration of the other alleged errors pointed out by appellant herein.
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The second assignment of error is based upon a wrong premise - that appellant's conviction was based upon his extra-judicial confession and that the same had been made under duress.
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Said extra-judicial confession was merely one of the factors considered by His Honor, the trial Judge, and the Court of Appeals in concluding that the evidence for the defense cannot be relied upon and that the witnesses for the prosecution had told the truth. Besides, appellant's confession was not tainted with duress. In this connection, the Court of Appeals had the following to say: . Apart from the reliability of Mrs. Casimira Lagman Peñaflor 's identification, we have the extra-judicial confession of appellant Nicanor Napolis, marked Exh. A, subscribed and sworn to by said accused on October 26, 1956, 25 days after the occurrence, before Provincial Fiscal Eleno L. Kahayon, the 64-year old prosecutor who, since July 18, 1946, was the Provincial Fiscal of Bataan up to the present. His testimony shows that he read the confession, Exh. A, to said accused in the Tagalog dialect; asked him whether he understood it to which appellant Napolis answered "yes"; inquired whether he was coerced to which he replied "No"; and then, required him to raise his hand in affirmation which he did (tsn. 14-15, I). Thereupon, appellant Napolis signed the confession in his (Fiscal's) presence. Provincial Fiscal Eleno L. Kahayon further testified that he saw no signs of physical violence on the person of the appellant who appeared normal in his appearance (tsn. 15, I). In this confession, Exh. A, appellant Napolis related that it was co-accused Antonio Bededia (still-at-large) who pointed the greasegun to husband Ignacio Peñaflor and who hit him (Peñaflor ) on the head and that it was co-accused Ben de la Cruz (whose case was dismissed) who wrested Peñaflor 's revolver. For his part, appellant Napolis admitted that it was he who talked to Mrs. Casimira L. Peñaflor and it was he who got the money bag. The loot, according to him, was split from which he received a share of P237.00 (Answer to Q. A, Exh. A). Among others, he mentioned appellant Bonifacio Malana as the owner of the greasegun and the one who got Peñaflor 's revolver from the hands of co-accused Ben de la Cruz. ... . It may not be amiss to advert to the fact that, on appeal from a decision of the Court of Appeals, the findings of fact made in said decision are final, except - .

Peñaflor referred to a door. De los Santos 7 and applied in U. vs. however. In short. Turla. under the conditions set forth in Art. unworthy of credence. as distinguished from the store.. Makalintal. without committing any of the crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art. in the case at bar." (U.reduction of the penalty for the latter offense owing to the concurrence of violence or intimidation which made it a more serious one. This Court had previously ruled . v. enters. although. without violence against or intimidation upon persons. whereas Ignacio Peñaflor said that the thieves had entered his house by forcing its door open. when the elements of both provisions are present." is far from sufficient to justify said result. exist. This is on the theory that "robbery which is characterized by violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things. 299 of the Revised Penal Code with reclusion temporal. and the chief of police affirmed that the malefactors had removed a piece of wood and an adobe stone to get into said house. under conditions falling under sub-paragraph (5) of said article. sentencing Napolis and Satimbre to an indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor. 10 Manahan v. the doctrine adopted in U. as maximum. People vs. which. People. concur. is characterized by intimidation.L. although he added that the malefactors had. precisely.. and one (1) day of prision mayor to nineteen (19) years. It is. absurd or impossible. and. . virtualawlibrary virtual law library .(1) When the conclusion is a finding grounded entirely on speculations.) And this view is followed even where. virtualawlibrary virtual law library We deem it more logical and reasonable to hold. 40 Phil..B. Peñaflor testified that their entry was effected through an excavation by the side of the house. used violence against Ignacio Peñaflor . and intimidation against his wife. This penalty should. virtualawlibrary virtual law library The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor. also. factually. Baluyot. because where violence or intimidation against the person is present there is greater disturbance of the order of society and the security of the individual. one of which was a store and the other the dwelling proper. for this reason. 2 virtual law library and that the case at bar does not fall under any of the foregoing exceptions." so that the law to apply is article 294 and not article 299 of the Revised Penal Code. Baluyot. 12 is hereby abandoned and appellant herein should be sentenced to an indeterminate penalty ranging from ten (10) years. went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. with a deadly weapon. which had a door leading thereto (to the dwelling proper). v. 11 andPeople v. (2) when the inference is manifestly mistaken. the testimony of Mr. Upon the other hand.as provided in Art. (3) when there is a grave abuse of discretion. and Mrs. Barredo and Villamor. to our mind. be imposed in its maximum period -. Counsel for the defense alleges that. with costs against herein appellant. Indeed. Peñaflor consisted of two (2) parts. J. it is clear to Us that the first three (3) assignments of error are untenable. (4) when the judgment is based on a misapprehension of facts. to seventeen (17) years. adjoining the store.. in its maximum period. aside from performing said acts. and considering that the findings of fact made by the Court of Appeals are supported by those of His Honor. 3 virtual law library Upon mature deliberation.under paragraph (5) thereof -. 6 To our mind. which is lighter than that prescribed in said Article 299.. Manansala. 89. The house of Mr. to performing said acts.S. inside the store. v. calling for the imposition -. one (1) month and eleven (11) days of reclusion temporal. Malana and Satimbre of the crime of robbery committed by armed persons. Reyes. virtualawlibrary virtual law library In addition. is reclusion temporal in its maximum period." but. in an inhabited house. Teehankee.from nineteen (19) years. took part. 294 of the same Code. (5) when the findings of fact are conflicting. virtualawlibrary virtual law library The third assignment of error is predicated upon the theory that the evidence for the prosecution is contradictory and. We agree with the proposition that robbery with "violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things. four (4) months and one (1) day of reclusion temporal. that where robbery. Fernando. the penalty to be applied under article 294 is lighter than that which would result from the application of article 299. as in the present case..S. the malefactors had. accordingly. that the crime is a complex one. virtualawlibrary virtual law library The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification. J. as provided in Article 299 (a) of the Revised Penal Code.owing to the presence of the aggravating circumstances of nighttime. JJ. 4 Pursuant to the above view. No such contradictions. 5 if. 294 applies only where robbery with violence against or intimidation of person takes place without entering an inhabited house. by breaking a wall. Castro. 346. Peñaflor testified that the culprits had entered the store by removing an adobe stone from a wall thereof. . Turla. is punishable under Art. Nicanor Napolis. . more plausible to believe that Art. though committed in an inhabited house. Makasiar. virtualawlibrary virtual law library In the light of the foregoing. surmises or conjectures. as minimum. entry therein having been made by breaking a wall. and this was corroborated by the chief of police.S. thereby infringing Article 294 of the same Code. We find ourselves unable to share the foregoing view. 38 Phil. defy logic and reason. however. 9 People v. as We do. 8 U. who had observed the behaviour of the witnesses during the trial. which is in accordance with said legal provision. this result and the process of reasoning that has brought it about. which prescribes the penalty of prision correccional in its maximum period to prision mayor in its medium period. the crime committed is more serious than that covered by the latter provision. one (1) month and eleven (11) days to twenty (20) years of reclusion temporal . Mrs.of the penalty for the most serious offense. Mrs. in turn. Zaldivar. Sebastian.. 48 of said Code -. It is so ordered. the thief lays hand upon any person.S. the trial Judge. virtualawlibrary virtual law library Thus modified as to the penalty. It should be noted that the Court of Appeals affirmed the decision of the trial court convicting Napolis. also. in making its findings. We cannot accept the conclusion deduced therefrom in the cases above cited .shall be much lighter. the decision of the Court of Appeals is hereby affirmed in all other respects. hence. an inhabited house and steals therefrom valuable effects. (6) when the Court of Appeals. 299 of the Revised Penal Code.. this factor "supplies the controlling qualification. the imposable penalty -. leading to the dwelling proper. removed a piece of wood from said wall. one who. adhered to in previous decision.

conspiring and confederating together and mutually helping and aiding one another. 1993 of the Regional Trial Court of Makati City. Marcelino Tuliao. the imposition and promulgation of the sentence on him is hereby suspended and he is committed to the custody and care of the Rehabilitation Center of the Department of Social Services and Development at the Boys Town Vicente Madrigal. MARCELINO TULIAO y AGDINAWAY. steal and carry away the brown leather bag containing the following items. 297 of the Revised Penal Code. Branch 56.00 for the loss (sic) of his life and another sum of P50. Jaime Macabales jumped bail and has remained at large. finding accused Jaime Macabales.000. who was under eighteen (18) years of age at the time the crime was committed.00 belonging to Eva Katigbak. Rizal. Romano Reyes. Romano Reyes. defined and penalized under Art. unlawfully and feloniously grab.00 for moral damages. Magora and De Luna. the aggravating circumstance of use of motor vehicle was present. Renato Magora and Richard De Luna[4] were present in person. a minor. Tanay. 1990. while the said complainant Eva Katigbak was waiting for a ride along Ayala Avenue corner Herrera Street which is a Philippine highway. 1993. with intent of gain and by means of force. said appellants and Richard De Luna. 1990. as a result of which the said victim suffered mortal and serious stab wounds which directly caused his death. The dispositive portion[5] of said judgment reads: virtual law library WHEREFORE. otherwise known as the Child and Youth Welfare Code. while armed with [a] fan knife. the trial court suspended the imposition and promulgation of the sentence on accused Richard De Luna. However. however. did then and there willfully.000. to wit: virtual law library Cash money P5. finding accused-appellants Jaime Macabales. the said accused. virtual law library In an Information dated March 28. However.[2] virtual law library virtual law library Arraigned on May 23. Philippines a place within the jurisdiction of this Honorable Court. are as follows: virtual law library . this Court in its resolution dated January 17. virtual law library The facts.000. Trial thereafter ensued.000. 1990. In said decision. virtual law library On March 25. conspiring and confederating together and mutually helping and aiding one another.[3] the accused pleaded not guilty.00 Three (3) Seiko Wrist virtual law library virtual law library Watches 6. to the damage and prejudice of the latter in the aforementioned amount of P12. and to pay the costs of the suit. Tuliao.00.000. 603.00 virtual law library all in the total amount of P12. nine months and six days and classified as a youthful offender. ABNER CARATAO y SANCHEZ. virtual law library That in the commission of the said crime. in Criminal Case No. Abner Caratao. that as a result or on the occasion of the said robbery. Abner Caratao. We are now concerned only with the appeal of Caratao.: virtual law library On appeal is the decision[1] dated March 25. xxx virtual law library SO ORDERED. pursuant to Art.000. Reyes. in the Municipality of Makati. were charged as follows: virtual law library That on or about the 13th day of March. the above-named accused. violence and intimidation. 192 of Presidential Decree No. with intent to kill. the trial court rendered its decision. vs. Marcelino Tuliao and Renato Magora guilty of the crime of attempted robbery with homicide and sentencing each of them to suffer the penalty of reclusion perpetua. until he reaches the age of twenty-one or a shorter period depending on the report and recommendation of the Department of Social Services and Development. ROMANO REYES y COSME. J.PEOPLE OF THE PHILIPPINES. JAIME MACABALES y CASIMIRO @ JAIME CEREZA y CASIMIRO and JAIME MACABALES y CEREZA. accused-appellants. a brother of Eva Katigbak. QUISUMBING.000. 1990. Romano Reyes. 1669. xxx virtual law library Considering that accused Richard de Luna was at the time of the commission of the offense only fifteen years.00 virtual law library Pair of Earring[s] 1. did then and there willfully and feloniously stab Miguel Katigbak. during the trial only Abner Caratao. Metro Manila. He was tried in absentia. RENATO MAGORA y BURAC and RICHARD DE LUNA y RAZON. virtual law library Appellants herein seasonably interposed their appeal. they are hereby sentenced to suffer the penalty of reclusion perpetua and to pay jointly and severally the heirs of Miguel Katigbak the sum of P50. Plaintiff-Appellee. there being (the) aggravating circumstances of treachery and the use of motor vehicle and no mitigating circumstance that attended the commission of the offense. dismissed his appeal. finding appellants guilty of the special complex crime of attempted robbery with homicide. Marcelino Tuliao and Renato Magora guilty beyond reasonable doubt of having committed the offense of attempted robbery with homicide. since Jaime Macabales had jumped bail. as narrated by the Solicitor General. CONTRARY TO LAW.

He did not know if Tuliao and the man had a fight. He heard somebody shout Bastos. one of the occupants. The person he was waiting for did not arrive. a fan knife fell from him. 1990. At Pasong Tamo. he saw Macabales and Katigbak fighting. he asked Magora to drive Rey and Roger to their homes in the jeepney. The group boarded the jeepney and sped in the direction of Makati Avenue. suddenly pulled out a knife and stabbed Miguel repeatedly on the chest. He could not remember where the jeepney turned because he was drunk. she saw that some passers-by loaded her brother in a taxi. Magora. he instructed Magora to drive on. someone flagged them. The others in the jeepney did not alight. When Macabales returned to the jeepney. Miguel. Tuliao. Binalla fired a warning shot and ordered the suspects to alight and lie down the road. threw down the three attackers. A taxi blocked their way in the intersection. They were waiting for a ride in the corner of Ayala Avenue and Herrera Street in Makati. He saw the knife when it fell from Macabales. After a brief chase. Metro Manila. De Luna.M.. Caratao. at Davila Street because he would be meeting his foreman. At the corner of Ayala Avenue and Herrera Street. Magora. but he did not stop because he was not picking up passengers and Macabales poked a sharp object at him and told him to continue driving. The two others joined the fray and held the arms of Miguel. they overtook the passenger jeepney along Buendia Avenue. Macabales was holding a knife. Tuliao got off the jeepney. De Luna. Tuliao accosted the man. A passenger jeepney slowly approached them. Later Tuliao returned and told him to drive on because the man was a marine captain. He denied alighting from the jeepney at Ayala Avenue with the other accused who ganged up on the victim. He also admitted that Macabales and he were members of Sputnik gang. He did not see any of them help Macabales. They all got off the jeepney. virtual law library .[6] virtual law library The prosecution evidence included the testimony of Pfc. Eva helped by his brother. Caratao. There was no taxi tailing the jeepney.M. He said that after Reyes slept in the jeepney he did not see Reyes again because he himself went inside his house and slept. He did not see Macabales holding a knife inside the jeepney. The officers told the suspects to board the jeepney. When Macabales was frisked by the police. a knife fell from him. he rested in a jeepney owned by Tuliao which was parked in front of the house of Santiago.[8] virtual law library The defense. When he learned that the man was a marine captain whom he later came to know as Miguel Katigbak. who conducted the post-mortem examination and caused the preparation of the autopsy report. Virgilio Encarnacion. Between the hours of 6:00 P. Reyes and Macabales rode with them. At Goldilocks. Pfc. Tuliao heard a man utter Bastos. Tuliao said he did not look back again because he was worried and afraid that the police might apprehend them. He also denied any participation in the mauling and stabbing of the victim. so he asked Magora to bring Paloma to the terminal along Ayala Avenue. While Eva tried to retrieve the bag.M. He did not see Macabales get off the jeepney. Tuliao and Magora.M. The house of his relative was just 150 meters away from his own house. The others were at the back seats. A woman pointed to Macabales as the one who stabbed the deceased. He did not talk with the other accused inside the jeepney as he was asleep. They finished drinking between 6:00 and 7:00 P. Marine Captain Miguel Katigbak and his sister. Paloma was a guest of Tuliao the night of the crime. virtual law library According to Romano Reyes on March 13.all alighted and accosted Miguel and Eva. Magora said he did not notice where Paloma alighted.On the night of March 13. Two of the wounds were fatal and these could have been caused by two or more bladed instruments. they drove along Ayala Avenue.[9] virtual law library Marcelino Tuliao testified that at about 6:00 P. While he was waiting.[10] virtual law library In their appeal. after his work at 5:00 P. were heading towards the Makati Commercial Center (along Pasong Tamo Street) for a late night shopping and dinner. a taxi with Patrolman William Binalla on board stopped at his post and requested assistance to pursue several suspects reportedly on board a passenger jeepney. he proceeded to the house of his relative Leticia Jimena. Inside the jeepney were Macabales. he went on sleeping until a shot at Pasong Tamo woke him. and the bag fell on the pavement. They proceeded to Buendia Avenue. He was afraid of being caught. Later on. he was at his house with Rey Magora and Roger Paloma who repaired his gas stove.[7] virtual law library Dr. Eva went to his aid. understandably presented a different version. He said Reyes and he were not with the accused that evening. He told Magora to stop and he went to find out who shouted. he went back to the jeepney. who testified that while manning traffic along the corners of Pasong Tamo and Pasay Road in Makati. he and Magora were in the front seat of the jeepney. He stretched out on the seat inside the jeepney. Macabales kept transferring from one seat to the other. He did not notice any policeman who flagged them to stop. He said he did not know why the others were there. who had not joined the initial assault. Macabales caught up and sat behind Luna and him. on March 13. 1990. As accused Macabales alighted. After the repair. immobilizing and rendering him defenseless. He did not see nor notice Roger Paloma inside the jeepney.M. Because he was drunk. to get his salary from him. was lying in the jeepney without clothes on. It took several minutes to make the call as the guard of the bank fronting the crime scene refused her entrance and locked the bank doors instead. The strap snapped. testified that Miguel sustained a stab wound in his middle back penetrating to his left chest and two more in his stomach. about 8:00 P. they were blocked by the police and warning shots were fired. 1990. At the police headquarters Macabales admitted that he was the one who stabbed the victim. Guadalupe picked the knife and noticed it was sticky. the driver woke him up because the jeepney would be used in bringing the guests of Tuliao to Ayala Avenue. Eva Katigbak. He did not have any idea why. ordered three bottles of beer to drink. Pat.M. While on the way to the station. They drove to Ayala Avenue and turned right to Makati Avenue. but he decided not to pick-up passengers because one of his companions. who was skilled in martial arts. he saw persons stopping their jeepney. They were brought to the police headquarters. Guadalupe asked who owned the bloodied knife. THAT THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY TO COMMIT THE CRIME CHARGED AMONG ACCUSEDAPPELLANTS. The policeman informed them that one of their companions stabbed somebody at the corner of Ayala Avenue and Herrera Street. When the jeepney left Davila Street. He heard warning shots and he stopped driving. She boarded the taxi and accompanied her brother to the Makati Medical Center. He asked to be allowed to continue his sleep and go with them. grabbed the handbag Eva was carrying. Magora and the other accused. virtual law library Still in shock. When it was directly in front of them. and accused Macabales admitted owning it. As she came out of the PT & T office where she made the call. Reyes. although Macabales did point something on his body. and 7:00 P. De Luna and Macabales and Caratao -. It was only when the jeepney was moving that he saw Macabales running after them. Tuliao and De Luna assign the following errors: virtual law library 1.Reyes. Macabales admitted owning the knife. He asked the policeman what the problem was and he even gave his drivers license. Macabales. He slowed down the jeepney because there were people crossing the street. Guadalupe. The jeepney went straight along Ayala Avenue. A man and a woman flagged down the jeepney. When he looked back. a friend named Benjamin Santiago. Jerry Katigbak. held on to her bag as Macabales pulled it. and ordered the driver to proceed to the police station. Angered. a medico-legal officer at the NBI. leaving the severely wounded Miguel clutching his chest. Maximo Reyes. It was picked up by Pat. whose house was nearby. While the fight was going on. Miguel died a few minutes after they arrived at the hospital. virtual law library Renato Magora testified that Tuliao was the owner of the jeepney he was driving. virtual law library Benjamin Santiago corroborated the story of Reyes. It was only then that he felt nervous. He knew Tuliao. The latter could not drive his jeepney at that time because he was not well. and he knew all of the accused because they all resided at Davila Street. Caratao. She laid him down on the pavement and looked for a phone booth to call another brother. Eduardo Guadalupe. namely accused Jaime Macabales. They were brought to the police precinct. for its part. the jeepney stopped and its occupants -. whose condominium was nearby..

the penalty of death shall be imposed. he may be convicted of the offense charged if it is included in . If physical injuries or other crimes are committed during or on the occasion of the commission of the robbery or brigandage. When there is a variance between the offense charged and the offense proved. We find no reason. who was a marine captain and supposedly knowledgeable about the art of self-defense. virtual law library Sec. the penalty of reclusion temporal in its medium and maximum periods shall be imposed. while two of the accused were holding his arms and the three with whom Miguel fought were surrounding him. and they left together after accomplishing their deed. 2. virtual law library Sec. 532. Revised Penal Code provides: virtual law library When by reason or on occasion of an attempted or frustrated robbery a homicide is committed. committed by any person on any Philippine highway. unless the homicide committed shall deserve a higher penalty under the provisions of this Code. virtual law library Primarily.2.An offense charged necessarily includes that which is proved. constitutes the latter. together with Macabales. 5 When an offense includes or is included in another . 4 Judgment in case of variance between the allegation and proof . virtual law library In a number of cases we have ruled that when homicide takes place as a consequence of or on the occasion of the robbery. No. 532. Magora and Tuliao admitted that the three of them. THAT THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF TREACHERY IN THE CONVICTION OF ACCUSEDAPPELLANTS. they assert that. [17] virtual law library Appellants assert that the court a quo erred in applying Article 297 of the Revised Penal Code. 532 which reads: virtual law library Sec. in convicting them. court a quo erred in convicting them of robbery with homicide under Article 297 of the Revised Penal Code.The seizure of any person for ransom. No. why Eva should lie in implicating all the accused. and that proved or established by the evidence. and the offense as charged is included in or necessarily includes the offense proved.D. Caratao. virtual law library The Information charged appellants with Highway Robbery with Homicide under P. evidencing a common purpose. if Macabales was not assisted by his companions. and that Macabales stabbed Miguel. the accused shall be convicted of the offense proved included in that which is charged. 3. the latter deserves greater credence. 4 and 5 of Rule 120 of the Rules on Criminal Procedures is likewise pertinent.[11] virtual law library Appellant Romano Reyes. extortion or other unlawful purposes.D. virtual law library 2. on the other hand. showing that accused acted in unison with each other. as the crime they are charged is punishable by a special law. the trial court was correct in convicting appellants of the crime of attempted robbery with homicide under Article 297 of the Revised Penal Code. virtual law library In our view.[13] virtual law library The medico-legal officer found that five frontal stab wounds could not have been successfully inflicted by Macabales on Miguel. THAT THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED ACTED IN CONSPIRACY WITH THE OTHER ACCUSED. their individual acts when massed together.When there is a variance between the offense charged in the complaint or information. virtual law library Sec.[15] Even if there was no direct proof of appellants previous agreement to kill the victim. the person guilty of such offense shall be punished by reclusion temporal in its maximum period to reclusion perpetua. THAT THE TRIAL COURT ERRED IN APPLYING THE PROVISIONS OF THE REVISED PENAL CODE TO THE OFFENSE CHARGED WHICH IS DEFINED AND PUNISHABLE BY A SPECIAL LAW. clearly manifested that they were acting in concert. virtual law library Article 297. P. all those who took part in the robbery are liable as principals by indispensable cooperation although they did not actually take part in the homicide unless proof could be adduced that anyone of the appellants tried to prevent the killing. Settled is the rule that conspiracy need not be proved by direct evidence of prior agreement on the commission of the crime. unhesitating and sincere. they question the credibility of Eva Katigbak.[12] virtual law library First. however. assigns the following errors: virtual law library 1. that they were all together in the same jeepney when they fled from the scene of the crime until they were apprehended by the police. the act of one is the act of all and it does not matter who among the accused actually inflicted the injury upon the victim. If kidnapping for ransom or extortion. or murder or homicide. They helped one another kill Miguel. appellants fault the trial courts conclusion that there was conspiracy among appellants. or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means. Between the self-serving testimonies of the accused and the positive identification of the assailants made by the prosecution witness. Second. when some of the essential elements or ingredients of the former. The coordinated actions they executed showed conspiracy among them. and De Luna were present at the time and at the scene of the commission of the offense. (b) The penalty of reclusion temporal in its minimum period shall be imposed. We find her testimony straight-forward. P. considering that the Information charged them with Highway Robbery with Homicide under a special law. or rape is committed as a result or on the occasion thereof. (e) Highway Robbery/Brigandage . THAT THE TRIAL COURT ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF HAVING COMMITTED THE CRIME OF ATTEMPTED ROBBERY WITH HOMICIDE. They aver that Eva Katigbaks testimony does not establish conspiracy among appellants. No. or of the offense charged included in that which is proved. the defendant may be convicted of the offense proved if it is included in the offense charged. The concerted action in attacking Miguel as narrated by Eva is an indication that the perpetrators knew beforehand what to do. And an offense charged is necessarily included in the offense proved. Appellants may be convicted for a crime other than that designated by the formal charge. during and after the commission of the crime.[14] as this could be inferred from the conduct of the accused before. Likewise. It reads: virtual law library Sec.[16] In point of law. Eva testified that Reyes. as this is alleged in the complaint or information. D. when the essential ingredients of the former constitutes or form a part of those constituting the latter. virtual law library 3.

Romano Reyes. However. Appellants Abner Caratao. as their other companions surrounded them. we find that the trial court in this case correctly characterized treachery as a generic aggravating. what controls is not the designation but the description of the offense charged. treachery forms part of the circumstances proven concerning the actual commission of the complex crime. as generic aggravating circumstance. virtual law library Finally. the decision of the Regional Trial Court of Makati City dated March 25. Salvatierra. Likewise the use of a motor vehicle. virtual law library SO ORDERED. (Chairman).[18]Considering the allegations of the aforequoted Information. a jeepney. Marcelino Tuliao and Renato Magora are found GUILTY beyond reasonable doubt of the crime of attempted ROBBERY WITH HOMICIDE and sentenced to suffer the penalty of RECLUSION PERPETUA. Logically it could not qualify the homicide to murder but. Mendoza. The elements of Robbery with Homicide as defined in Art. it helps determine the penalty to be imposed. circumstance. such treachery is to be regarded as a generic aggravating circumstance.. appellants should be liable for the special complex crime of attempted robbery with homicide under Article 297 of the Revised Penal Code. Robbery with homicide is a composite crime with its own definition and special penalty in the Revised Penal Code. Buena. It is sufficient that some of the essential elements are established. appellants contend that the trial court erred in concluding that the aggravating circumstance of treachery is present. 523 and were duly proved in this case. virtual law library Additionally. Considering that Richard De Luna was a minor at the time of the commission of the offense and the imposition and promulgation of his sentence was suspended. Both elements are among the elements of Highway Robbery with Homicide under P. (2) A homicide is committed. There is no special complex crime of robbery with murder under the Revised Penal Code. It is not necessary that all the essential elements of the offense charged in the information be proved. Costs against appellants. in the interpretation of an information. virtual law library WHEREFORE. rather than qualifying. to constitute the crime proved. JJ.the offense proved.[19] we ruled that when alevosia (treachery) obtains in the special complex crime of robbery with homicide. since the homicide committed during a robbery attempt was proved beyond reasonable doubt. virtual law library Bellosillo. by appellants during the commission of the offense has been established beyond dispute. concur.. Miguel was rendered helpless by appellants in defending himself when his arms were held by two of the attackers before he was stabbed with a knife by appellant Macabales. let the records of this case be remanded to the trial court for appropriate action concerning said accused. In People v.D. . [20] Here. and De Leon. They aver that treachery applies to crimes against persons and not to crimes against property. 1993 is AFFIRMED. Jr. 297 of the Revised Penal Code are: (1) There is an attempted or frustrated robbery.

steal and use the international long distance calls belonging to PLDT by conducting International Simple Resale (ISR). cables. as well petitioner’s subsequent Motion for Reconsideration.” the sole requisite being that the object should be capable of “appropriation. the accused. in the said amount. petitioner is one of the accused in Criminal Case No. this Court held that the Amended Information does not contain material allegations charging petitioner with theft of personal property since international long distance calls and the business of providing telecommunication or telephone services are not personal properties under Article 308 of the Revised Penal Code. The trial court denied the Motion to Quash the Amended Information. Thus. filed with the Regional Trial Court of Makati City.: On February 27. 1999.370. Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion for Reconsideration with Motion to Refer the Case to the Supreme Court En Banc. or prior thereto in Makati City. PLDT alleges that the international calls and business of providing telecommunication or telephone service are personal properties capable of appropriation and can be objects of theft. may be the subject of theft under Article 308 of the Revised Penal Code. PLDT also argues that “taking” in relation to theft under the Revised Penal Code does not require “asportation. antenae. it follows that all “personal properties” as understood in the context of the Civil Code. at the time of the “taking. 99-2425. CONTRARY TO LAW. that it identifies the international calls and business of providing telecommunication or telephone service of PLDT as the personal properties which were unlawfully taken by the accused. and within the jurisdiction of this Honorable Court. Thus. The enumeration of real properties in Article 415 of the Civil Code is exclusive such that all those not included therein are personal properties. the term “personal .[1] By way of brief background.” on the ground that the factual allegations in the Amended Information do not constitute the felony of theft. 1999 in Makati City by conducting ISR or International Simple Resale.92 to the damage and prejudice of PLDT. The Regional Trial Court is directed to issue an order granting the motion of the petitioner to quash the Amended Information.Laurel v.[2] Petitioner filed a “Motion to Quash (with Motion to Defer Arraignment). this Court’s First Division rendered judgment in this case as follows: IN LIGHT OF ALL THE FOREGOING.” of withholding it with the character of permanency. Since Article 308 of the Revised Penal Code used the words “personal property” without qualification. which is a method of routing and completing international long distance calls using lines. unlawfully and feloniously take. Petitioner’s special civil action for certiorari was dismissed by the Court of Appeals. did then and there willfully. The Amended Information charged the accused with theft under Article 308 of the Revised Penal Code.651. committed as follows: On or about September 10-19. that it states the names of all the accused who were specifically charged with the crime of theft of PLDT’s international calls and business of providing telecommunication or telephone service on or about September 10 to 19.” The element of “taking” referred to in Article 308 of the Revised Penal Code means the act of depriving another of the possession and dominion of a movable coupled with the intention. 2006. which means to deprive the lawful owner of the thing. with intent to gain and without the knowledge and consent of the Philippine Long Distance Telephone (PLDT). There must be intent to appropriate. and/or air wave frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined. the petition is GRANTED. SO ORDERED. petitioner filed the instant petition for review with this Court. PLDT further insists that the Revised Penal Code should be interpreted in the context of the Civil Code’s definition of real and personal property. Branch 150. The assailed Orders of the Regional Trial Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE. It maintains that the Amended Information charging petitioner with theft is valid and sufficient. and that it satisfies the test of sufficiency as it enabled a person of common understanding to know the charge against him and the court to render judgment properly. Abrogar YNARES-SANTIAGO. J. effectively stealing this business from PLDT while using its facilities in the estimated amount of P20. In the above-quoted Decision. conspiring and confederating together and all of them mutually helping and aiding one another.

the “international phone calls” which are “electric currents or sets of electric impulses transmitted through a medium. Tambunting. and United States v. the Special First Division resolved to refer the same to the Banc. the special laws punish the surreptitious and advanced technical means employed to illegally obtain the subject service and business.[5] which recognized intangible properties like gas and electricity as personal properties. United States v. Even assuming that the correct indictment should have been under RA 8484. (3) that the taking be done with intent to gain. prosecution under Republic Act (RA) No. In his Comment to PLDT’s motion for reconsideration. service and business. are deemed incorporated in our penal laws. are personal property. there is no basis for this Court’s finding that the Legislature could not have contemplated the theft of international telephone calls and the unlawful transmission and routing of electronic voice signals or impulses emanating from such calls by unlawfully tampering with the telephone device as within the coverage of the Revised Penal Code. The elements of theft under Article 308 of the Revised Penal Code are as follows: (1) that there be taking of personal property. We resolve to grant the Motion for Reconsideration but remand the case to the trial court for proper clarification of the Amended Information. the quashal of the information would still not be proper. It noted that the cases of United States v. that control. PLDT does not produce or generate telephone calls. – Theft is committed by any person who. with intent to gain but without violence against. It is not the “business” that is protected but the “right to carry on a business. and not the designation of the crime. Considering the gravity and complexity of the novel questions of law involved in this case. Who are liable for theft. 308. He also insists that “business” is not personal property. Carlos[4] and United States v. The latter embraces unauthorized appropriation or use of PLDT’s international calls. shall take personal property of another without the latter’s consent. Article 308 of the Revised Penal Code provides: Art.” This right is what is considered as property. The Office of the Solicitor General (OSG) agrees with respondent PLDT that “international phone calls and the business or service of providing international phone calls” are subsumed in the enumeration and definition of personal property under the Civil Code hence. the theft provision in the Revised Penal Code was deliberately couched in broad terms precisely to be all-encompassing and embracing even such scenario that could not have been easily anticipated.properties” under Article 308 of the Revised Penal Code is not limited to only personal properties which are “susceptible of being severed from a mass or larger quantity and of being transported from place to place. This Court.” are personal properties which may be subject of theft. or intimidation of persons nor force upon things. 8484 or the Access Device Regulations Act of 1998 and RA 8792 or theElectronic Commerce Act of 2000 does not preclude prosecution under the Revised Penal Code for the crime of theft. international telephone calls were in existence. the definition of the term “personal property” in the penal code provision on theft had been established in Philippine jurisprudence. (2) that said property belongs to another. and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. On the other hand. Hence. According to the OSG. According to respondent. Prior to the passage of the Revised Penal Code on December 8.” the same may not be subject of theft. it may not be considered as personal property susceptible of appropriation. to the prejudice of PLDT as owner thereof. Genato. Genato. Petitioner claims that the analogy between generated electricity and telephone calls is misplaced.[3] United States v. for personal profit or gain. It only provides the facilities or services for the transmission and switching of the calls. (4) that the taking be done without the consent of the owner. Moreover. in United States v. hence.” PLDT likewise alleges that as early as the 1930s. may be proper subjects of theft. The charge of theft as alleged in the Information should be taken in relation to RA 8484 because it is the elements. Since the services of PLDT cannot be considered as “property. It is not synonymous to electric current or impulses. . and carry a pattern representing the human voice to a receiver. Article 416(3) of the Civil Code deems “forces of nature” (which includes electricity) which are brought under the control by science. 1930. petitioner Laurel claims that a telephone call is a conversation on the phone or a communication carried out using the telephone. Carlos.

and the existence in any building premises of any such device shall. the term “personal property” has had a generally accepted definition in civil law. The only requirement for a personal property to be the object of theft under the penal code is that it be capable of appropriation. and April 1. meter. capable of appropriation can be the object of theft. No person shall. wrongfully redirecting such forces of nature from such apparatus. in which they are used. which was involved in the said case. Tapping current. any property which is not included in the enumeration of real properties under the Civil Code and capable of appropriation can be the subject of theft under the Revised Penal Code. and have been adopted by the legislature as having a certain meaning prior to a particular statute. reads as follows: Injury to electric apparatus. as held in the cases of United States v. tangible or intangible. or measuring electricity. consistently ruled that any personal property. Cognizant of the definition given by jurisprudence and the Civil Code of Spain to the term “personal property” at the time the old Penal Code was being revised.Tambunting.” Thus. telegraph or telephone service. is confirmed by the rule laid down in the decisions of the supreme court of Spain of January 20. appropriation of forces of nature which are brought under control by science such as electrical energy can be achieved by tampering with any apparatus used for generating or measuring such forces of nature.” [7] Jurisprudence is settled that to “take” under the theft provision of the penal code does not require asportation or carrying away.[6] In fact. as well as any mechanical device. may be committed through the use of the offenders’ own hands. Court of Appeals. since the passage of the Revised Penal Code on December 8. or otherwise injure or tamper with any wire. . Neither did it provide a restrictive definition or an exclusive enumeration of “personal property” in the Revised Penal Code. this Court used the Civil Code definition of “personal property” in interpreting the theft provision of the penal code in United States v. nor tap or otherwise wrongfully deflect or take any electric current from such wire. 1930. corporeal or incorporeal. It was further ruled that even without the above ordinance the acts of subtraction punished therein are covered by the provisions on theft of the Penal Code then in force.[11] As illustrated in the above cases. thus: Even without them (ordinance). and in some respects resembling electricity. the application of these articles in cases of subtraction of gas. the Court declared in Genato that ownership over electricity (which an international long distance call consists of). mutilate. or other apparatus installed or used for generating. the words used in such statute should be construed according to the sense in which they have been previously used. as held in the assailed Decision. In Article 335 of the Civil Code of Spain. As early as 1910. containing. in the absence of satisfactory explanation.[9] The word “take” in the Revised Penal Code includes any act intended to transfer possession which. or using any device to fraudulently obtain such forces of nature. cables. articles 517 and 518 of the code in force in these islands. be deemed sufficient evidence of such use by the persons benefiting thereby. as well astelephone service. Genato. 1897. such as an access device or card as in the instant case. Menagas. and the use of a jumper to divert electricity. It need not be capable of “asportation. a fluid used for lighting. Tambunting. Carlos. as held in Natividad v. the term “personal property” in the Revised Penal Code should be interpreted in the context of the Civil Code provisions in accordance with the rule on statutory construction that where words have been long used in a technical sense and have been judicially construed to have a certain meaning.” which is defined as “carrying away. as held inUnited States v. The pertinent provision of the Revised Ordinance of the City of Manila.[8] To appropriate means to deprive the lawful owner of the thing. deface. use or enjoy the benefits of any device by means of which he may fraudulently obtain any current of electricity or any telegraph or telephone service. or other apparatus. and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined. thereby showing its intent to retain for the term an extensive and unqualified interpretation. still the legislature did not limit or qualify the definition of “personal property” in the Revised Penal Code. petitioner was charged with engaging in International Simple Resale (ISR) or the unauthorized routing and completing of international long distance calls using lines. United States v. Evidence. – No person shall destroy. 1887. conducting. “personal property” is defined as “anything susceptible of appropriation and not included in the foregoing chapter (not real property). meter. Consequently. for any purpose whatsoever. Carlos. and United States v. antennae. is protected by the provisions on theft of the Penal Code.[10] use of a device to fraudulently obtain gas. such as the use of a meter tampering. In the instant case. the right of the ownership of electric current is secured by articles 517 and 518 of the Penal Code. This includes controlling the destination of the property stolen to deprive the owner of the property. Moreover. construing and enforcing the provisions of articles 530 and 531 of the Penal Code of that country.

of the fixtures and equipment used in and about the business of the vendor. merchandise. such interest is a personal property capable of appropriation and not included in the enumeration of real properties in article 335 of the Civil Code. provisions. Just like interest in business. hence. 3952 (Bulk Sales Law).”[14] In discussing the issue of ownership. or assignment of all. electric current) to enable the called party to receive the call. must first break down or decode the human voice/voice signal into electronic impulses and subject the same to further augmentation and enhancements. Moreover.[12] this Court stated: With regard to the nature of the property thus mortgaged which is one-half interest in the business above described. or substantially all. private respondent PLDT).[13] As can be clearly gleaned from the above disquisitions. meter. In this regard. it is the latter which decodes. or assignment of a stock of goods. Any sale. A perusal of the records of this case readily reveals that petitioner and respondent PLDT extensively discussed the issue of ownership of telephone calls. or measuring electricity. interest in business was declared to be personal property since it is capable of appropriation and not included in the enumeration of real properties. or materials otherwise than in the ordinary course of trade and the regular prosecution of the business of the vendor. The prosecution has taken the position that said telephone calls belong to respondent PLDT. again. (b) tapping or otherwise wrongfully deflecting or taking any electric current from such wire. however.The acts of “subtraction” include: (a) tampering with any wire. containing. it is not true that the foreign telecommunication company provides (1) the electric current which transmits the human voice/voice signal of the caller and (2) the electric current for the called party to receive said human voice/voice signal. The business of providing telecommunication or telephone service is likewise personal property which can be the object of theft under Article 308 of the Revised Penal Code. in the case of an international telephone call. it may be appropriated. service and facilities. petitioner and respondent PLDT gave their respective explanations on how a telephone call is generated. Ramirez. respondent PLDT explains the process of generating a telephone call as follows: 38. shall be deemed to be a sale and transfer in bulk. In the instant case. mortgage. or all. the electric current) through which the human voice/voice signal of the caller is transmitted. or other apparatus installed or used for generating. committed by means of the unlawful use of the latter’s facilities. In other words. Yet. or any sale. through which petitioner is able to resell or re-route international long distance calls using respondent PLDT’s facilities constitutes all three acts of subtraction mentioned above. Only after such process of conversion will the resulting electronic impulses be transmitted by a telecommunication company. once the electronic impulses originating from a foreign telecommunication company country (i. and may be the subject of mortgage. x x x. conducting. Thus. [15] For its part. Ramirez. meter. Interest in business was not specifically enumerated as personal property in the Civil Code in force at the time the above decision was rendered. transfer.e. Before the human voice/voice signal can be so transmitted. could be object of theft: Section 2. for the purpose of generating personal profit or gain that should have otherwise belonged to PLDT. The role of telecommunication companies is not limited to merely providing the medium (i. transferor or assignor. telegraph or telephone service. Japan) reaches the Philippines through a local telecommunication company (i. or other apparatus. a telecommunication company both converts/reconverts the human voice/voice signal and provides the medium for transmitting the same.e. This is evident from its Comment where it defined the issue of this case as whether or not “the unauthorized use or appropriation of PLDT international telephone calls. Business may be appropriated under Section 2 of Act No. the act of conducting ISR operations by illegally connecting various equipment or apparatus to private respondent PLDT’s telephone system. business should also be classified as personal property. or assignor. transferor. the telecommunication company will again break down or decode the electronic impulses back to human voice/voice signal before the called party receives the same. through the use of its facilities. transferor. and (c) using or enjoying the benefits of any device by means of which one may fraudulently obtain any current of electricity or any telegraph or telephone service. mortgagor. Following the ruling in Strochecker v.e. In Strochecker v. transfer. Business is likewise not enumerated as personal property under the Civil Code. Upon reaching the destination of the call. Since it is not included in the exclusive enumeration of real properties under Article 415. mortgagor. Article 414 of the Civil Code provides that all things which are or may be the object of appropriation are considered either real property or personal property.e. a telecommunication company. using its facilities. mortgage. it is therefore personal property. . constitutes theft. of the business or trade theretofore conducted by the vendor. wares. mortgagor. or substantially all. the Amended Information inaccurately describes the offense by making it appear that what petitioner took were the international long distance telephone calls. or assignor. 39. augments and enhances the electronic impulses back to the human voice/voice signal and provides the medium (i. rather than respondent PLDT’s business. petitioner’s acts constitute theft of respondent PLDT’s business and service. in contemplation of the Act.

SO ORDERED. A telephone call. The case is remanded to the trial court and the Public Prosecutor of Makati City is hereby DIRECTED to amend the Amended Information to show that the property subject of the theft were services and business of the private offended party. is electrical energy. The purpose of the amendment is simply to ensure that the accused is fully and sufficiently apprised of the nature and cause of the charge against him. .R. It was also held in the assailed Decision that intangible property such as electrical energy is capable of appropriation because it may be taken and carried away. It is the use of these communications facilities without the consent of PLDT that constitutes the crime of theft. therefore. electric current) to enable the called party to receive the call. the human voice/voice signal of the calling party will never reach the called party. Electricity is personal property under Article 416 (3) of the Civil Code. However. The assailed Decision dated February 27. SP No. the motion for reconsideration is GRANTED. this amendment is not necessitated by a mistake in charging the proper offense. which denied the Motion to Quash (With Motion to Defer Arraignment) in Criminal Case No. 68841 affirming the Order issued by Judge Zeus C. which is the unlawful taking of the telephone services and business.e. which enumerates “forces of nature which are brought under control by science. 2006 is RECONSIDERED and SET ASIDE. decodes and transmits said calls using its complex communications infrastructure and facilities. it cannot be said that such international long distance calls were personal properties belonging to PLDT since the latter could not have acquired ownership over such calls. Branch 150. and thus guaranteed of his rights under the Constitution.”[17] Indeed. Without private respondent PLDT’s network. PLDT not being the owner of said telephone calls. Therefore. take the form of electrical energy. augments. is AFFIRMED.e. Section 14 and Rule 119. once the electronic impulses or electric current originating from a foreign telecommunication company (i. contrary to petitioner Laurel’s assertion. the Amended Information describes the thing taken as. 992425 for theft. this case must be remanded to the trial court and the prosecution directed to amend the Amended Information. augments and enhances the electronic impulses back to the human voice/voice signal and provides the medium (i. enhances. then it could not validly claim that such telephone calls were taken without its consent. while it may be conceded that “international long distance calls. the business of providing telecommunication and the telephone service are personal property under Article 308 of the Revised Penal Code. Abrogar of the Regional Trial Court of Makati City. The Decision of the Court of Appeals in CA-G. and the act of engaging in ISR is an act of “subtraction” penalized under said article.” and only later mentions “stealing the business from PLDT” as the manner by which the gain was derived by the accused. the human voice is converted into electrical impulses or electric current which are transmitted to the party called. PLDT merely encodes. ACCORDINGLY.” the matter alleged to be stolen in the instant case. it is private respondent PLDT which decodes. to clearly state that the property subject of the theft are the services and business of respondent PLDT. Parenthetically. Section 19 of the Revised Rules on Criminal Procedure.[16] In the assailed Decision. the crime is properly designated as one of theft. it was conceded that in making the international phone calls. To be sure. Thus. which would have called for the dismissal of the information under Rule 110. Japan) reaches private respondent PLDT’s network. In order to correct this inaccuracy of description. “international long distance calls.40.

Sometime in 1980. his brother Wilson had a construction project along Tinongdan. Placido. pp. a certain Boy Candido.: ON appeal via petition for review on certiorari under Rule 45 is the Decision[1] of the Court of Appeals (CA). likewise based in La Trinidad. ACL management informed Placido and Wilson that the final payment for the work that they have done would be withheld. who then said that they could extend credit to his brother. Wilson Pideli is his brother. brother to Wilson and neighbor and friend to Placido.732. was being held by his brother and not Placido Cancio. 1997 in the amount of P25. 4.00 for the construction materials supplied by the hardware. On cross-examination.000. vs.[3] Petitioner Ernesto Pideli (petitioner). the contractor awarded the development project by the Department of Public Works and Highways. (TSN. Their account was finally computed in December 1997 and so he paid their balance of P25.[4] On November 17.000. Boy Cupido.[9] Alarmed over the sudden turn of events. Trail Farm Supply is P279. he was appointed as Project Development Officer of the Provincial Planning and Development Office and continuously up to the present. steal and carry away. ACL summoned all its subcontractors to a meeting. Philippine Currency. It was learned that they failed to settle their accountabilities with the MTFSH. petitioner refused to give Placido his share in the net income of the contract. after the completion of the project.000. affirming that[2] of the Regional Trial Court (RTC) in Baguio City. 2000. CONTRARY TO LAW. 21). an Information bearing the following allegations was instituted against petitioner: The undersigned accuses ERNESTO PIDELE (sic) of the crime of THEFT.000. 1997 in the amount of P75.[8] Despite repeated demands. He approached the manager of Mt. his brother owed the hardware the amount of P279. 1977. When his brother tendered to him the P100. 19-20).000. Placido lodged a complaint for theft against petitioner Ernesto Pideli. J. Benguet. and within the jurisdiction of this Honorable Court. Ernesto Pideli said that he was never a partner of his brother. offered the duo the use of his credit line with the Mt. Mrs. his brother gave him P100. One of the staff then informed him that the manager will still have to compute the interest of their loan credit and so he deposited P75. He had hoped to obtain his share of the partnership income. in the City of Baguio. Itogon. or on November 18. tire wires and other construction materials. Benguet. At the meeting.00. Editha Paayas. 1997. Trail Farm Supply charged in his name. Wilson and petitioner made representations with the accountable ACL personnel. The evidence for the People portraying the foregoing facts was supplied by private complainant Placido. The total cost of the materials taken by his brother from the Mt. As of 1997. is it estafa or theft? The Facts Sometime in March 1997.00 covered by Exhibit 1-B issued by Mrs. Wilson and petitioner computed their expenses and arrived at a net income of P130.00. Unexpectedly. Paayas she still has to compute for the interest.00 on November 18.00 at the Rose Bowl Restaurant.00. The money which his brother got from the main contractor.[10] Upon arraignment. Petitioner. Itogon.000. In 1997. claimed one-half (1/2) or P65. with intent of gain (sic) and without the knowledge and consent of the owner thereof. Placido Cancio (Placido) and Wilson Pideli (Wilson) entered into a verbal partnership agreement to subcontract a rip-rapping and spillway project at Tongcalong. This amount was paid to the hardware by installment.000. REYES. cement. The appeal zeroes in on the questions of ownership. he paid the hardware the amount of P279.[5] Placido. PEOPLE OF THE PHILIPPINES. Trail Farm Supply and Hardware (MTFSH) in La Trinidad. He went to the hardware but the manager was not there. Eventually.ERNESTO PIDELI. Placido and Wilson agreed to undertake the project in favor of ACL Construction (ACL). This was not yet the full payment because according to Mrs.00. The last time that he paid was on December 18.000. advised the two to first settle their accountabilities for the construction materials taken from the hardware store. 1997 while he. Placido. Petitioner. Placido.00 at his residence and he was the one who paid the hardware which issued him a receipt (Exhibit 1-C). R. Trail Farm Supply and Hardware. In short. he paid the initial payment of P179. unlawfully and feloniously take. p. Placido attempted but failed to contact petitioner.[6] Consequently.00 belonging to his brother’s business partner. Tinongdan Dalupirip Road. belonging to PLACIDO CANSIO (sic) y TALUKTOK. He is a government employee at the Provincial Planning and Development Office.00 which was covered by a receipt (Exhibit 1-B).00 of the net amount as his share in the project.00. La Trinidad.000. Philippines. Respondent. Placido Cancio was also there discussing the expenses. La Trinidad. with the assistance of petitioner. Aside from the amount of P279. May 2. Capitol. did then and there willfully.000.500. Petitioner’s defense founded on denial is summarized by the trial court as follows: Ernesto Pideli.. trial on the merits ensued.000.00 covered by Exhibit 1-C issued by the sales boy Cris. It was only in 1997 that his brother sought his assistance to look for a hardware .000. however. Wilson and petitioner were in attendance.T. This is the reason why in the receipt it was noted as part payment (TSN. On June 10. the partner of the late Engineer Lestino. The first installment was paid in June 1997 when the main contractor paid his brother. his brother and Placido Cancio were at the Rose Bowl Restaurant. With the said arrangement. 43 years old.00). convicting petitioner Ernesto Pideli of theft in the amount of P49. amounting to P222. His brother gave him P179. to facilitate the release of their payment. He was first employed at the Provincial Engineer’s Office on April 11. cash money in the amount of P65. After the project was completed. 1997. petitioner informed Placido that nothing was left of the proceeds after paying off the supplier. They assured Boy that the matter of the unpaid obligations to MTFSH has been resolved.000. to the damage and prejudice of the owner thereof in the aforementioned amount of SIXTY-FIVE THOUSAND PESOS (P65. as partner.000. Placido and Wilson did as told and entrusted the full amount to petitioner. petitioner pleaded “not guilty” to the charge. the lone prosecution witness. Benguet. were able to secure an assortment of construction materials for the rip-rap and spillway contract. Boy acceded to the request and proceeded to release the final payment due to Placido and Wilson.000. All in all.00. May 2. committed as follows: That on or about the 17th day of November. The second partial payment was made on November 18.[7] The following day. with express instructions to pay MTFSH and deliver the remaining balance to them. he still has an outstanding account with Mt. Editha Paayas.000. Benguet.00 representing the materials taken by his brother. 1997. His brother asked him if he knows of a hardware which can extend him credit for construction materials. Wilson and Placido. 2000. Petitioner was an employee of the Provincial Planning and Development Office of Benguet. unlawful taking and intent to gain.00. Benguet. married. the above-named accused. government employee and a resident of Km. namely: reinforcement bars. 1978. Then. Placido got hold of petitioner the next morning.

Article 1790 of the Civil Code. and one year for each additional ten thousand pesos. It has not been uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness (People v. 2003. he (Wilson Pideli) alleged that “Placido Cancio was his companion in the project at Dalupirip Road. and a bare denial.000. October 18. but the total of the penalty which may be imposed shall not exceed twenty years.where he can buy construction materials on credit. Itogon. the RTC handed down a judgment of conviction.500. however.” Thus.00 + 2 = P65.” xxx The penalty imposed upon those guilty of theft depends on the amount stolen.00 because he (private complainant) was pestering him (TSN. October 18. Accused carted away P65. In such cases.[11] (Underscoring supplied) RTC and CA Dispositions On March 13. At the initial stages of his (Wilson Pideli) testimony on direct examination. The question is. 18). denying the charges filed against him. Article 309(1) of the Revised Penal Code provides: Any person guilty of theft shall be punished by: “The penalty of prision mayor in its minimum and medium periods. other materials were obtained by his brother.00 which is now the basis for the construction of the penalty. as the case may be.00 despite the fact that he did not share in the expenses for the implementation of the project (TSN. According to him. the court finds the lone testimony of the private complainant more credible than the testimony of the defense witnesses.00. p. All materials ordered by Wilson for the project were placed in his account because it was easier for the hardware to contact him at their office which is nearer. Thus. Costs against the accused. Furthermore. judgment is hereby rendered CONVICTING the accused of the crime of theft and hereby sentences him after applying the Indeterminate Sentence Law.000. November 22. disposing in this wise: WHEREFORE. share in the expenses nor did he provide any equipment (TSN. Benguet) awarded to him by ACL Construction. private complainant asked him to join him and he (Wilson Pideli) agreed provided the private complainant share in the expenses. November 22. not numbered. Just as private complainant did. he entrusted to the private complainant the following amounts: 1. if the value of the thing stolen is more than P12. Wilson Pideli categorically admitted that Placido Cancio (the private complainant) is his partner in the endeavor along Dalupirip Road. a statement of account was prepared by the salesboy of Mt. p. Paragua. but if the value of the thing stolen exceeds the latter amount. this is the reason why they still have a balance of P20. Apse as payment for the cement test. he categorically stated that it was he and his laborers who implemented the project (rip rap project along Dalupirip Road. 1999. The accused insists that private complainant and his brother were not partners in the subcontract project. The testimony of the private complainant is positive and credible. Mido Restaurant where Josephine Bentres was disbursing final payments to the subcontractors of the project. 9-10). As the guarantor. The testimony of Wilson Pideli.00. and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of the code the penalty shall be termed prision mayor or reclusion temporal. instead of being corroborative. 1997. On crossexamination. he said that after computing their expenses. 2004. private complainant and Wilson Pideli were partners in a joint venture. He denies having taken the P65. SO ORDERED. The rule is that witnesses are to be weighed.00 to be given by the private complainant to the laborers who excavated for the project. p. however.” Paragraph 1 of Article 1797 of the same code further provides: “The losses and profits shall be distributed in conformity with the agreement. P15.” When asked by the Public Prosecutor what he meant by his statement. weakened the cause of the defense.000.00 to be given by the private complainant to Mr. it is only logical that the money for the payment of the wages and the cement test were entrusted to him because it was his responsibility/obligation to pay them and not because they were his neighbors as the defense would like this court to believe. however. in effect. Wilson Pideli. i. 1999. Accused’s brother. 2001. Later.000.500. the amount of P10. 5-6).00 representing private complainant’s share in the next proceeds of the project. 257 SCRA 118). As between positive and categorical testimony which has a ring of truth.000. why was he present at the: 1. stated. The reason propounded by Wilson Pideli to explain his actuations is too flimsy for this court to believe. 255 SCRA 190). 259 SCRA). Wilson Pideli admitted that he gave private complainant P10. Finding the testimony of the private complainant to be more credible than that of the accused and his witnesses. is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters (People v.00 when the latter kept on pestering him at the Rose Bowl Restaurant and P5. pp. his brother Ernesto Pideli and private complainant at the Rose Bowl Restaurant on November 17.e. he said that when he tendered the first payment of P179.000. P500. 8).00 leaving a balance of P49. to 12 years of prision mayor maximum as maximum (applying Art. he was also the one who paid his brother’s credit when his brother was able to collect payment. pp. in his narration of what actually transpired between him. He does not also know where the amount went (TSN. May 2. In a decision promulgated on April 30. Denial. The private complainant had no participation in the project (TSN. 1999. P130. 265 SCRA 408). Private complainant did not. 309(1) of the Revised Penal Code) and to reimburse the private complainant the amount of P49. on one hand.00.00. 2000.00 at the initial (first) payment.00. October 18. the CA affirmed[14] the trial court disposition.000. Trail Farm Supply and Hardware (Exhibit 1-D).000.00 and P5. the guilt of the accused having been proven beyond reasonable doubt. Itogon. If really private complainant has no involvement whatsoever in the project. 3. Later. Petitioner moved to reconsider the adverse judgment. and 2. Benguet which he subcontracted for ACL Construction. Placido Cancio is entitled to 1/2 share in the net proceeds. Such act is abnormal and contrary to human behavior and experience. Trail Farm Supply and Hardware. but does not exceed P22. Truth is established not by the number of witnesses but by the quality of their testimonies (People v. Wilson Pideli said that when he started the project. 2. It is unfortunate that the evidence on record does not disclose the agreement between the private complainant and Wilson Pideli with regards to the sharing of the capital (expenses) and profits on the project. The motion was. he submitted an affidavit with the Office of the City Prosecutor of Baguio City. however. If only the share of each partner in the profits has been agreed upon. the penalty shall be the maximum period of the one prescribed in this paragraph.500. Thus. the share of each in the losses shall be in the same proportion. the trial court ratiocinated: x x x Upon evaluation of the testimonies of the witnesses. 13) yet he entrusted the aforementioned amounts to Cancio. On redirect. Exhibit 2). Tuvilla. if the private complainant had no real participation in the project subject of this case.[13] (Underscoring supplied) Petitioner appealed to the CA.00 to be settled within the hardware. Gondora. if unsubstantiated by clear and convincing evidence. The testimony of defense witness Wilson Pideli was glaringly inconsistent and contradictory on material points. sufficient to sustain a conviction even in the absence of corroboration. 1999. 1999. After the first and second payment. in fact. P10. to suffer imprisonment from 4 years of prision correccional medium as minimum. Affirmative testimony is stronger than a negative one.000. At the Rose Bowl Restaurant when the Pideli brothers were computing the expenses incurred in the project and also presenting his list of expenses (Exhibit B. pp. Benguet (TSN.00 plus interest thereon at the rate of 6% per annum from date of filing of the complaint up to the time it is actually paid. he merely acted as guarantor of his brother so the latter can withdraw construction materials on credit from the Mt. he was the one who provided the laborers and some equipments used in the project. Itogon.[15] . the court rules that the presumption of innocence guaranteed by law in favor of the accused has been overturned and must be convicted of the crime charged. 14-16). The only plausible and logical conclusion is.000. Thus.500. provides: “Unless there is stipulation to the contrary. gave the private complainant and this was admitted by the latter the amount of P10. He was furnished a copy of the statement of account.[12] In convicting petitioner of theft. Ferrer. in his testimony on direct. it is safe for the court to conclude that as a partner in the joint venture. why would Wilson Pideli be entrusting such amounts to the former.00 should be deducted from his net share of P65.500. denied with finality through a Resolution dated March 9.000. the former is generally held to prevail (People v.500. on the other hand. Wilson Pideli admitted on cross that while the case was filed by private complainant against his brother Ernesto Pideli. In Paragraph 1 of the said affidavit which was read into the records of the case. Wilson stopped his construction project. the partners shall contribute equal shares to the capital of the partnership. After the project in Itogon.000.

The net income earned and disbursed to the partnership of private complainant and Wilson Pideli was P130. In an effort to exculpate himself. That the taking be done without the consent of the owner. settle the account with the supplier. That said property belongs to another. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THE FINDING THAT THE PROPERTY ALLEGEDLY STOLEN WAS OWNED BY THE PRIVATE COMPLAINANT. not a single centavo of this amount was received by private complainant. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THAT THE ALLEGED TAKING BY THE PETITIONER WAS ATTENDED WITH INTENT TO GAIN. cannot be the object of the crime of theft as between the partners. 1997 allegedly evidencing his payment of P75. he had only physical custody of private complainant’s money. well-entrenched is the general rule that the jurisdiction of this Court in cases brought before it from the CA is limited to reviewing or revising errors of law. That there be taking of personal property. the existence of which is made manifest by overt acts of the person. 43 Phil. the same still does not exculpate him from liability. On this ground alone. although at the beginning the article was. had no right to a share in its payment. II. viz. i. it is jurisprudentially settled that intent is a mental state. which was supposed to be applied to a particular purpose. x x x Accordingly. Tan.[17] Any peripheral factual question addressed to this Court is beyond the ambit of this mode of review. Appellant presented a receipt dated November 18. III.[21] 4. petitioner imputes to the CA triple errors. and the failure of the accused to apply the money to its specific purpose and converting it to his own use gives rise to the crime of theft. The basic principles enunciated in the De Vera case was reiterated in the recent case of People vs.000.00 to the Mt.: I. That the taking be done with intent to gain. The monies subject matter of the complaint pertain to the partnership.[18] Indeed. petitioner was to account for the remaining balance of the said funds and give each of the partners their respective shares. In any case. and That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. here.[16] (Underscoring supplied) Our Ruling Prefatorily. We are asked to recalibrate the evidence adduced by the parties and to reevaluate the credibility of witnesses.viz. the elements of theft are as follows: 1. When appellant received the disbursement. Appellant’s failure to do so or to return the money to the private complainant renders him guilty of the crime of theft. “the article (is considered as being) taken away.[19] The petition at bench raises not only questions of law but also of facts. petitioner posits that he cannot be held liable for theft of the unaccounted funds.00 still remained despite the alleged payment. De Vera.00 manifestly belonged to and was owned by the private complainant.000. deem it proper to delve into the merits of the present petition considering that an appeal in a criminal case throws the whole case wide open for review. in fact. shall take personal property of another without the latter’s consent. 1000 (1929) that the delivery of money to another for a particular purpose is a parting with its physical custody only. There is. – Theft is committed by any person who. 308. However. 2. the petition is dismissible. Petitioner received the final payment due the partners Placido and Wilson under the pretext of paying off their obligation with the MTFSH. hence. that it was owned by the partnership and was for payment of materials obtained from the supplier.000. The intent to gain is presumed from the taking of property appertaining to another.000.e. 3.000. Appellant’s argument that since the money belonged to the partnership.” We agree with the Office of the Solicitor General (OSG) that appellant had but the material/physical or de facto possession of the money and his act of depriving private complainant not only of the possession but also the dominion (apoderamiento) of his share of the money such that he (the appellant) could dispose of the money at will constitutes the element of “taking” in the crime of theft. appellant was not complainant’s partner but his brother. however. in such a case. intent to gain cannot be imputed against petitioner. a confluence of the elements of theft. Granting arguendo that appellant paid P75. Complainant’s share in the amount of P65.00 for each of them.[20] Article 308 of the Revised Penal Code provides for the concept of the crime of theft. holds no water. Trail Farm Supply and Hardware (which the trial court did not grant credence). We. not received. Trail Farm Supply and Hardware store.[22] (Underscoring supplied) . As an agent of partner Wilson. this argument is inconsistent with the assertion of the defense witnesses that complainant had no participation at all in the project. and. This is in line with the rulings of the Supreme Court in the case of United States vs. 323 SCRA 30.000.: ART. the thrust of a petition for review on certiorari under Rule 45 is the resolution only of questions of law. As for his alleged acting in good faith and without intent of gain. however. Parenthetically. Who are liable for theft. failed to give private complainant Placido what was due him under the construction contract. hence. with intent to gain but without violence against or intimidation of persons nor force upon things. 5. He. given and received. The CA correctly debunked petitioner’s postulation in the following tenor: We likewise find no merit in appellant’s contention that the money did not belong to the private complainant as the latter was only claiming for his share of P65. Under the terms of their agreement. and that appellant as their agent acted in good faith and without intent to gain.00 and a balance of P55. where the High Court ruled that the unlawful taking or deprivation may occur after the transfer of physical possession and. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THAT THERE WAS AN UNLAWFUL TAKING OF PERSONAL PROPERTY. which should be divided into two (2) or P27.000 to Mt.00.Issues In this petition.000. an Anti-Carnapping case.

00 is due private complainant. Applying the Indeterminate Sentence Law. Ynares-Santiago. although physically held by the driver. Nieves de Vera. if the teller appropriates the money for personal gain then the felony committed is theft and notestafa. (Chairperson). The Court reasoned that the accused was not a lessee or hirer of the jeepney because the Public Service Law and its regulations prohibit a motor vehicle operator from entering into any kind of contract with any person if by the terms thereof it allows the use and operation of all or any of his equipment under a fixed rental basis. and the bank places money in the teller’s possession due to the confidence reposed on the teller. Verily. and one year for each additional tenthousand pesos. Aquino. However.500. The doctrine was reiterated in the recent case of Roque v. and the act of disposal with gainful intent and lack of owner’s consent constituted the crime of theft. and Nachura. but if the value of the thing stolen exceed the latter amount. That period ranges from six (6) years and one (1) day to ten (10) years. the accused’s possession of the vehicle was only an extension of the owner’s. Trinidad. succinctly opined: 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. a bar of gold weighing 559.. If he was entrusted only with the material or physical (natural) or de facto possession of the thing. and bank notes amounting to P200.[24] In De Vera. petitioner was correctly found guilty of theft. Thus. Penalties. beginning with People v.[27] this Court convicted a jeepney driver of theft and not estafawhen he did not return the jeepney to its owner since the motor vehicle was in the juridical possession of its owner. Chief Justice Ramon C. Petitioner’s civil liability is likewise maintained. Isaac. but the total of the penalty which may be imposed shall not exceed twenty years. SO ORDERED. Such is only material possession. as maximum term. . the defendant immediately carried it to one of her neighbors to whom she sold it for P30. In People v. JJ. on two separate occasions. there may be theft even if the accused has possession of the property.[28] Now. This interpretation applies with equal force to money received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals.[29] (Underscoring supplied) The record bears out that private complainant originally claimed P65. De Vera. The Court. Accused appropriated the bar of gold and bank notes. from Wilson Pideli. the accused. WHEREFORE.Although there is misappropriation of funds here.00 and appropriated the money to her own use. v. his misappropriation of the same constitutes theft. plus one (1) year for every additional ten thousand pesos in excess of P22. which in this case is two (2) years for the excess amount of P27. De Vera. In line with the reasoning of the Court in the above-cited cases. The contract with the accused being under the “boundary system. the appealed Decision is AFFIRMED in full.500. Article 309 of the Revised Penal Code penalizes theft in the following tenor: Art.000. 4 months and 1 day to 6 years). since the teller occupies a position of confidence.00. Both the trial court and the CA sentenced petitioner to an indeterminate penalty of four (4) years of prision correccional medium. We sustain it.00. if the value of the thing stolen is more than 12. In People v. Austria-Martinez. an Igorot.00 for the benefit of said offended party. the felony of qualified theft would be committed.000. in his commentary on the Revised Penal Code. – Any person guilty of theft shall be punished by: 1.S. similarly convicted defendant of theft.00. the penalty shall be the maximum period of the one prescribed in this paragraph. The penalty of prision mayor in its minimum and medium periods. thus such possession remained in the owner. received from Pepe. to be imposed in any of its periods. Instead of pledging the ring.[26] this Court considered deposits received by a teller in behalf of a bank as being only in the material possession of the teller.[25] defendant received a finger ring from the offended party for the purpose of pledging it as security for a loan of P5. Hence. Chico-Nazario. People.7 grams for the purpose of having a silversmith examine the same.000 pesos but does not exceed 22. to twelve (12) years of prision mayor maximum. only P49. his conversion of the same constitutes embezzlement or estafa.500.” legally. Further. As early as U. 309.00 as his share in the partnership.00 to have them exchanged for silver coins. he admitted receiving the total amount of P15.[23] the Court has consistently ruled that not all misappropriation is estafa. as minimum term. Locson. concur. the maximum term could be twelve (12) years while the minimum term would fall under the next lower penalty of prision correccional in its medium and maximum periods (2 years. but if he has the juridical possession of the thing. citing De Vera. on the penalty. In People v. the accused was not a lessee but only an employee of the owner. Juridical possession remains with the bank. However.000 pesos. the imposable penalty is the maximum period of prision mayor minimum and medium prescribed in the abovequoted first paragraph of Article 309. The Court ruled that the crime committed was theft and not estafa since the delivery of the personal property did not have the effect of transferring the juridical possession.

Quezon City.[7] Thereafter. at which point he was apprehended by Lago and brought to the security office. [8] The filched items seized from the duo were four (4) cases of Tide Ultramatic. Petitioner then returned inside the supermarket. He boarded the cab and directed it towards the parking space where Calderon was waiting.[3] A more cursory treatment of the question was followed in 1929. when they saw the security guard Lago fire a shot. the day after the incident. IAC. walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa. Leoncio Rosulada.[5] This petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.[4] and in 1984. then boarded the vehicle. he was at the Super Sale Club to withdraw from his ATM account. where Calderon was waiting. “assigned at the supermarket” though not at SM.: This case aims for prime space in the firmament of our criminal law jurisprudence. a supermarket within the ShoeMart (SM) complex along North EDSA. accompanied by his neighbor.. All these acts were eyed by Lago. in Empelis v. and three (3) additional cases of detergent. Petitioner effectively concedes having performed the felonious acts imputed against him.[2] the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918. at which time he and the others were brought to the Baler Police Station. they were suddenly “grabbed” by a security guard. petitioner and Calderon reacted by fleeing on foot. a security guard who was then manning his post at the open parking area of the supermarket. he should be adjudged guilty of frustrated theft only. but instead insists that as a result. As they were outside. a Gregorio Valenzuela. On 19 May 1994.[12] Meanwhile. for investigation. leading them to head out of the building to check what was transpiring. only petitioner and Calderon were charged with theft by the Assistant City Prosecutor.m. J. petitioner left the parking area and haled a taxi. petitioner testified during trial that he and his cousin.Valenzuela v. The gunshot caused him and the other people at the scene to start running. but Lago fired a warning shot to alert his fellow security guards of the incident. The basic facts are no longer disputed before us. four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident.[11] As the queue for the ATM was long. and eventually brought to the prosecutor’s office where he was charged with theft.” hauling a push cart with cases of detergent of the well-known “Tide” brand. not the felony in its consummated stage of which he was convicted. Petitioner and Calderon were apprehended at the scene. in People v.00. at the trial. petitioner denied having stolen the cartons of detergent. The proposition rests on a common theory expounded in two well-known decisions [1] rendered decades ago by the Court of Appeals. one (1) case of Ultra25 grams. by Lorenzo Lago (Lago). [13] had been at the parking lot. Calderon loaded the cartons of Tide Ultramatic inside the taxi. It was while they were eating that they heard the gunshot fired by Lago.[14]During petitioner’s cross-examination. upholding the existence of frustrated theft of which the accused in both cases were found guilty. the goods with an aggregate value of P12. after the matter was referred to the Office of the Quezon City Prosecutor. I. However. As far as can be told. who was wearing an identification card with the mark “Receiving Dispatching Unit (RDU).. he admitted that he had been employed as a “bundler” of GMS Marketing. at around 4:30 p. Petitioner unloaded these cases in an open parking space. the rationale behind the rulings has never been affirmed by this Court. Adiao.[9] Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the Philippine National Police. It appears from the police investigation records that apart from petitioner and Calderon.[10] After pleading not guilty on arraignment. and the stolen merchandise recovered. The case stems from an Information [6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. and after five (5) minutes. People TINGA. Lago saw petitioner. Calderon alleged that on the afternoon of the incident. but he was detained overnight. Petitioner claimed he was detained at the security office until around 9:00 p. emerged with more cartons ofTide Ultramatic and again unloaded these boxes to the same area in the open parking space. However. petitioner and Calderon were sighted outside the Super Sale Club. in Informations prepared on 20 May 1994. who proceeded to stop the taxi as it was leaving the open parking area.[15] . thus commencing their detention. in People v. Calderon and Rosulada decided to buy snacks inside the supermarket. At the station. Sobrevilla.m. petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station.090. When Lago asked petitioner for a receipt of the merchandise.

Diño[27] and People v. in its Decision dated 19 June 2003. convicted both petitioner and Calderon of the crime of consummated theft. such conclusion could profoundly influence a multitude of routine theft prosecutions.”[34] .00 of which he was charged. Diño and Floreshave attained a level of renown reached by very few other appellate court rulings. To delve into any extended analysis of Diño and Flores.[25] As such. the theft should be deemed as consummated or merely frustrated. [18] but only petitioner filed a brief[19] with the Court of Appeals. yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction. as affirmed by the RTC and the Court of Appeals.” it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code. causing the appellate court to deem Calderon’s appeal as abandoned and consequently dismissed. such as a supermarket checkout counter or a parking area pay booth. the occasion to define or debunk the crime of frustrated theft has not come to pass before us. “[s]ubjectively the crime is complete. Flores. do not produce it by reason of causes independent of the will of the perpetrator. More critically.090. [31] After that point has been breached.” or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which. including commonplace shoplifting. They are comprehensively discussed in the most popular of our criminal law annotations. petitioner cites[26] two decisions rendered many years ago by the Court of Appeals: People v.In a Decision[16] promulgated on 1 February 2000. the subjective phase is completely passed in case of frustrated crimes. if we finally say that Diño and Flores are doctrinal. It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings since they have not yet been expressly adopted as precedents by this Court. [32] It has been held that if the offender never passes the subjective phase of the offense. petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12. [33] On the other hand. as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Yet despite the silence on our part. II. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum. Indeed. For whatever reasons.[23] which expressly seeks that petitioner’s conviction “be modified to only of Frustrated Theft.” Finally. The only question to consider is whether under the given facts. Petitioner invoked the same rulings in his appeal to the Court of Appeals.”[24] Even in his appeal before the Court of Appeals. Any scenario that involves the thief having to exit with the stolen property through a supervised egress. for in such instances.[21] the Court of Appeals rejected this contention and affirmed petitioner’s conviction. may easily call for the application of Diño and Flores.” It is frustrated “when the offender performs all the acts of execution which would produce the felony as a consequence but which. petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended. with prior acts. III.” Each felony under the Revised Penal Code has a “subjective phase. [22] Hence the present Petition for Review. as well as the specific issues relative to “frustrated theft. it is attempted “when the offender commences the commission of a felony directly by overt acts.[17] The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime. A felony is consummated “when all the elements necessary for its execution and accomplishment are present. should result in the consummated crime. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Diño and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. namely the consummated. nevertheless.[30] Article 6 defines those three stages. In arguing that he should only be convicted of frustrated theft. and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Both accused filed their respective Notices of Appeal. frustrated and attempted felonies. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future. [29] and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft. there is no cause for the Court to consider a factual scenario other than that presented by the prosecution. Before the Court of Appeals. the subjective phase ends and the objective phase begins. he was never placed in a position to freely dispose of the articles stolen. Branch 90. [20] However. the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. the Regional Trial Court (RTC) of Quezon City. the crime is merely attempted.[28] Both decisions elicit the interest of this Court.

[40] It is from the actus reus and the mens rea. For example. 308.S. it is not produced if the victim survives. Supreme Court has comfortably held that “a criminal law that contains no mens rea requirement infringes on constitutionally protected rights. shall remove or make use of the fruits or object of the damage caused by him. On the face of the definition. Any person who. the crime is undoubtedly in the attempted stage. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code. Fortunately. [35] Accepted in this jurisdiction as material in crimes mala in se. For a crime to exist in our legal law. Under Article 308 of the Revised Penal Code. disputes would inevitably ensue on the elemental question whether or not a crime was committed. nisi mens sit rea” supplies an important characteristic of a crime. The long-standing Latin maxim “actus non facit reum.[36] mens rea has been defined before as “a guilty mind. there must also be an actus reus. there must further be present the descriptive circumstances that the taking was with intent to gain. Who are liable for theft.”[38] It follows that the statutory definition of our mala in se crimes must be able to supply what themens rea of the crime is. and attempted felonies on the other. Article 308 provides for a general definition of theft. we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code. [41] In the present discussion. it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision. there can be no crime when the criminal mind is wanting. or other forest or farm products. that the felony is produced. In contrast. Theft is likewise committed by: 1. without force upon things or violence against or intimidation of persons. evil intent must unite with an unlawful act for there to be a crime. having found lost property. Indeed.”[37] and “essential for criminal liability. thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. and 3. as they find expression in the criminal statute. our Revised Penal Code does not suffer from such infirmity. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony. It is also clear from the provision that in order that such taking may be qualified as theft. while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent. the statutory definition of murder or homicide expressly uses the phrase “shall kill another. Any person who. The determination of whether the felony was “produced” after all the acts of execution had been performed hinges on the particular statutory definition of the felony. a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.” thus making it clear that the felony is produced by the death of the victim.” and accordingly. shall take personal property of another without the latter’s consent. shall fail to deliver the same to the local authorities or to its owner.— Theft is committed by any person who.[42] . Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner. (3) that the taking be done with intent to gain. namely: (1) that there be taking of personal property. a guilty or wrongful purpose or criminal intent. (4) that the taking be done without the consent of the owner. and three alternative and highly idiosyncratic means by which theft may be committed. We next turn to the statutory definition of theft. As a postulate in the craftsmanship of constitutionally sound laws.Truly. From the statutory definition of any felony. and indeed the U. its elements are spelled out as follows: Art. after having maliciously damaged the property of another. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. there is only one operative act of execution by the actor involved in theft ─ the taking of personal property of another.”[39] The criminal statute must also provide for the overt acts that constitute the crime. with intent to gain but without violence against or intimidation of persons nor force upon things. it is not enough that mens rea be shown. shall hunt or fish upon the same or shall gather cereals. (2) that said property belongs to another. and conversely. the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself. 2. an easy distinction lies between consummated and frustrated felonies on one hand. and it was without the consent of the owner of the property. the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was undertaken and sustained. that “ordinarily.

that the transgression went beyond the attempted stage. from which in turn he took a purse containing 461 reales and 20 centimos.” and that such failure is due to causes independent of the will of the perpetrator. Judge Guevarra traces the history of the definition of theft.] he was seen by a policeman. On the critical question of whether it was consummated or frustrated theft. such seizure motivated by intent to gain. At no time was the accused able to “get the merchandise out of the Custom House. “do not produce [such theft] by reason of causes independent of the will of the perpetrator. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. vel etiam usus ejus possessinisve.”[45] This requirement of animo lucrandi.” and it appears that he “was under observation during the entire transaction. with the Institutes of Justinian. animo lucrandi was compounded with apoderamiento.” U. instead.”[47] However. 1897. a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. including animo lucrandi and apoderamiento.[50] Ultimately. while the defendant was still inside the church. petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.” [43] a definition similar to that by Paulus that a thief “handles (touches. the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking. Therein.[46] In Spanish law. (Decision of the Supreme Court of Spain. Subsequently. moves) the property of another. however. completed without need to inflict violence or intimidation against persons nor force upon things. if ordinarily sufficient to produce theft as a consequence. alternatively. As he was in the act of taking the fruit[. and accomplished without the consent of the SM Super Sales Club.[51] So long as the “descriptive” circumstances that qualify the taking are present. finding that “all the elements of the completed crime of theft are present. we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.) The defendant penetrated into a room of a certain house and by means of a key opened up a case. 1898.” [55] In support of its conclusion that the theft was consummated. yet it did not appear that he was at that moment caught by the policeman but sometime later. the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart. was maintained in both the Spanish and Filipino penal laws. lucri faciendi causa vel ipsius rei. the Court cited three (3) decisions of the Supreme Court of Spain. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento. however. which was also opened with a key. the completion of the operative act that is the taking of personal property of another establishes. and to appropriate means to deprive the lawful owner of the thing. v. The latter on account of the solemnity of the act. in order to ascertain whether the theft is consummated or frustrated. was so broad enough as to encompass “any kind of physical handling of property belonging to another against the will of the owner. once the acts committed by petitioner.[49]or that there was no need for permanency in the taking or in its intent. there is one apparent answer provided in the language of the law — that theft is already “produced” upon the “tak[ing of] personal property of another without the latter’s consent.” There are clearly two determinative factors to consider: that the felony is not “produced. Following that provision. or intent to gain. the idea had taken hold that more than mere physical handling. the offended party got back the money from the defendant. So. although noticing the theft.” despite the commission of all the acts of execution. or “unlawful taking. it is necessary to inquire as to how exactly is the felony of theft “produced. which under early Roman law as defined by Gaius. Adiao[53] apparently supports that notion. December 1. there must further be an intent of acquiring gain from the object. that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the stolen property.In his commentaries. thus: “[ f]urtum est contrectatio rei fraudulosa. did not do anything to prevent it. The first. October 14. saying that neither circumstance was decisive. The second factor ultimately depends on the evidence at hand in each particular case. finding that it had to be coupled with “the intent to appropriate the object in order to constituteapoderamiento. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. a conflicting line of cases decided by the Court of Appeals ruled. of frustrated theft. and then he placed the money over .” [54] Based apparently on those two circumstances." (Decision of the Supreme Court of Spain. the theft would have been frustrated only.” Parsing through the statutory definition of theft under Article 308. at least. as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento. as Justice Regalado notes. As applied to the present case. the discussion of which we replicate below: The defendant was charged with the theft of some fruit from the land of another.S. and holding instead that the accused was guilty of consummated theft. the trial court had found him guilty.” to characterize theft.) Defendant picked the pocket of the offended party while the latter was hearing mass in a church. even as it has since been abandoned in Great Britain. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time. relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code [52] as to when a particular felony is “not produced. The Court reversed. and from the case took a small box.” [44] However.

and that determines the crime of theft. who was afterwards caught by a policeman. The court considered this as consummated robbery. was able to consummate the theft. to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision.)[56] It is clear from the facts of Adiao itself. he was stopped by an M. after a struggle. If the pocket-book was afterwards recovered. who inspected the truck and found therein three boxes of army rifles. such intervals proved of no consequence in those cases. Yet to simply affirm without further comment would be disingenuous. while in the midst of a crowd in a public market. but as he was approaching a checkpoint of the Military Police. After he had finished unloading." (Decision of the Supreme Court of Spain. as there is another school of thought on when theft is consummated. was already able to abstract a pocketbook from the trousers of the victim when the latter.[59] If anything. the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles “pass through the checkpoint. that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. which. which was quoted as follows: Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella. just at this moment he was caught by two guards who were stationed in another room near-by. sin materializar demasiado el acto de tomar la cosa ajena. even if it were more or less momentary. In doing so.[62] Integrating these considerations. as reflected in the Diño andFlores decisions.P. had driven his truck into the port area of the South Harbor. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint.”[60] This point was deemed material and indicative that the theft had not been fully produced. and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been. but the Court of Appeals modified the conviction. Army personnel. accused drove away his truck from the Port. does not go to make the elements of the consummated crime. the Court simply said. from “sometime later” in the 1898 decision. some 31 years after Adiao and 15 years before Flores.[57] where the accused. and having taken it with his hands with intent to appropriate the same. pues de otra suerte. as had happened in Adiao and the 1897 decision. The [accused] succeeded in taking the pocket-book. as it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another. a driver employed by the United States Army. no matter how momentary. the Court of Appeals then concluded: This court is of the opinion that in the case at bar. to unload a truckload of materials to waiting U. dado el concepto del delito de hurto.S. however. the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. without further comment or elaboration: We believe that such a contention is groundless. The case isPeople v. Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. he recovered his pocket-book and let go of the defendant. in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item. Adiao. and the three (3) Spanish decisions cited therein. no puede decirse en realidad que se haya producido en toda su extension. Diño was decided by the Court of Appeals in 1949. “caught hold of the [accused]’s shirt-front. and before the thief had been able to spirit the item stolen from the building where the theft took place.the cover of the case. The interval between the commission of the acts of theft and the apprehension of the thieves did vary. only the act of making use of the thing having been frustrated. he executed all the acts necessary to constitute the crime which was thereby produced. the offense can not be said . but before the loot came under the final control and disposal of the looters. for the Court of Appeals pronounced that “the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen. Sobrevilla. such recovery does not affect the [accused’s] criminal liability. The accused therein. 1882.P. it would be allowed to pass through the check point without further investigation or checking. holding instead that only frustrated theft had been committed. which arose from the [accused] having succeeded in taking the pocket-book. but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed. Still. perceiving the theft.” [58] In rejecting the contention that only frustrated theft was established. check point. The trial court convicted accused of consummated theft. in order to make the booty subject to the control and disposal of the culprits. at the same time shouting for a policeman.”[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision). perhaps in the belief that as the truck had already unloaded its cargo inside the depot. the articles stolen must first be passed through the M. siquiera sea mas o menos momentaneamente. In 1929. Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter. June 13.

As noted earlier.S. Before the Court of Appeals. finding that “[t]he facts of the cases of U.” At the same time. [v.”[74] In People v. the petitioner could not have disposed of the goods ‘at once’. as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. This ruling seems to have been based on Viada’s opinion that in order the theft may be consummated.S. a checker employed by the Luzon Stevedoring Company. the guards insisted on inspecting the van.” However. as the truck passed through the checkpoint. siquiera sea mas o menos momentaneamente. the Court of Appeals conceded that “[t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime. citing a “traditional ruling” which unfortunately was not identified in the decision itself.” as in the case where the chattel involved was of “much less bulk and more common x x x. [such] as money x x x. did find that the accused was guilty only of frustrated. “es preciso que so haga en circunstancias tales que permitan al sustractor de aquella. the Court of Appeals.”[64] Such conclusion is borne out by the facts in Flores. The offense committed. “es preciso que se haga en circumstancias x x x [[70]]”[71] In the same commentaries. therefore. The prosecution inFlores had sought to distinguish that case from Diño.to have been fully consummated. and discovered that the “empty” sea van had actually contained other merchandise as well. The accused therein.[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. Even though those facts [73] . theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. and found himself convicted of the consummated crime. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor “to freely dispose of the articles stolen. as it was frustrated by the timely intervention of the guard. Chief Justice Aquino.[63] Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. the stolen items were discovered by the Military Police running the checkpoint.”[72] There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and Flores rulings. However. People v. in Flores. even if it were only momentary. as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of theft. explicitly relying on Diño. while the truck and the van were still within the compound. While the trial court found the accused guilty of frustrated qualified theft. is that of frustrated theft.” Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated. and not consummated. where freedom to dispose of or make use of it is palpably less restricted.”[67] though no further qualification was offered what the effect would have been had that alternative circumstance been present instead. also states that “[i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same. However. a case which according to the division of the court that decided it. However. but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that “literally frustrated the theft. as implied in Flores. Synthesis of the Diño and Flores rulings is in order. v. concluding from Adiao and other cases. the Court of Appeals pointed out that the said “traditional ruling” was qualified by the words “is placed in a situation where [the actor] could dispose of its contents at once. Or as stated in another case[ [69]]. bore “no substantial variance between the circumstances [herein] and in [Diño]. Espiritu. Such circumstance was not present in either Diño or Flores. although his act of making use of the thing was frustrated.[65] The accused was prosecuted for theft qualified by abuse of confidence. Batoon involved an accused who filled a container with gasoline from a petrol pump within view of a police detective. the Court of Appeals held that the accused was guilty of consummated qualified theft. who followed the accused onto a passenger truck where the arrest was made. However. the appellate court noted that “[o]bviously. the appellate court admitted it found “no substantial variance” between Diño and Flores then before it. the character of the item stolen could lead to a different conclusion as to whether there could have been “free disposition. This theory was applied again by the Court of Appeals some 15 years later.] Adiao x x x and U.”[66] Pouncing on this qualification. then the theft could be deemed consummated.” The qualifier “siquiera sea mas o menos momentaneamente” proves another important consideration. theft. Chief Justice Aquino makes the following pointed observation on the import of the Diño ruling: There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were more or less momentary. accused argued in the alternative that he was guilty only of attempted theft.”[68] In his commentaries. issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company.

and not consummated. which does not constitute any element of theft. there is bound to arise different rulings as to the stage of execution of that felony. and were subsequently arrested after the owner reported the incident to the police. Empelis has not since been reaffirmed by the Court. we cannot see how Empelis can contribute to our present debate.” [77] Indeed. given the disputed foundational basis of the concept of frustrated theft itself. though. such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Reyes wryly observes that “[w]hen the meaning of an element of a felony is controversial. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. which we reproduce in full: However.” though not producing the felony as a result. If the offender was not able to perform all the acts of execution. It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. dropping the coconuts they had seized. Even if the two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code. these facts should elicit the conclusion that the crime was only attempted. IV. the question can even be asked whether there is really such a crime in the first place. The Court in 1984 did finally rule directly that an accused was guilty of frustrated. except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft. the crime is attempted. as the accused “were able to take or get hold of the hospital linen and that the only thing that was frustrated. following Article 310 of the Revised Penal Code. the Court of Appeals held that the accused were guilty of consummated theft. and also by the fact that it has not been entrenched by subsequent reliance. The accused fled the scene. the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. is that the disposition of that issue was contained in only two sentences.[78] As narrated in Empelis. provided that the non-performance was by reason of some cause or accident other than spontaneous desistance. After trial. especially given that the acts were not performed because of the timely arrival of the owner. we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. and the issue they raised on appeal was that they were guilty only of simple theft. we cannot attribute weight to Empelis as we consider the present petition. It fact. Considering the flawed reasoning behind its conclusion of frustrated theft. is the use or benefit that the thieves expected from the commission of the offense. Even if Empelis were considered as a precedent for frustrated theft. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction. that decision is subject to reassessment. As we undertake this inquiry. per Article 6 of the Revised Penal Code.”[81] However. Indeed. However. whether Diño. or even cited as authority on theft.”[76] In pointing out the distinction between Diño and Espiritu. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner. There are indeed evident problems with this formulation in Empelis. Empelis held that the crime was only frustrated because the actors “were not able to perform all the acts of execution which should have produced the felon as a consequence.[80] No legal reference or citation was offered for this averment. following Article 6 of the Revised Penal Code.clearly admit to similarity with those in Diño. Notably. theft. its doctrinal value is extremely compromised by the erroneous legal premises that inform it. in the act of gathering and tying some coconuts. it cannot present any efficacious argument to persuade us in this case. the passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication.[79] but further held that the accused were guilty only of frustrated qualified theft. The Court affirmed that the theft was qualified. the owner of a coconut plantation had espied four (4) persons in the premises of his plantation. Flores or the Spanish authorities who may have bolstered the conclusion. the accused were convicted of qualified theft. . For these reasons. the crime is frustrated “when the offender performs all the acts of execution. IAC. Instead. we have to reckon with the import of this Court’s 1984 decision in Empelis v. Empelis concludes that the crime was frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. and not because of spontaneous desistance by the offenders. Thus. What does appear.

Cuello Calón actually set forth his own thought that questioned whether theft could truly be frustrated. Segundo párrafo del 617 y 618. This divergence of opinion convinces us. los abandona. at least. El hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente. son hurtos consumados. 2. éstos. The definition of the crime of theft.[86] Ultimately. Algunos fallos han considerado la existencia de frustración cuando. the esteemed Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft. núms. for such a submission is hardly heretical in light of Cuello Calón’s position. Unlike Viada. The passage cited in Diño was actually utilized by Viada to answer the question whether frustrated or consummated theft was committed “[e]l que en el momento mismo de apoderarse de la cosa ajena. read as follows: Son reos de hurto: 1. 11 marzo 1921. conforme a lo antes expuesto.” Otherwise put. and willingly recites decisions of the Supreme Court of Spain that have held to that effect. salvo los casos previstos en los artίculos 606. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. 613. under the Codigo Penal Español de 1995. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado. 611. . 2.[87] (Emphasis supplied) Cuello Calón’s submissions cannot be lightly ignored. 22 febrero 1913. núm. Hay "por lo menos" frustración. 1. viéndose sorprendido. Therein. con ánimo de lucro. he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. Cuello Calón attacked the very idea that frustrated theft is actually possible: La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposición del agente. 22 febrero 1913.[85] A few decades later. núm. it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce the effect of theft. 28 febrero 1931. that there is no weighted force in scholarly thought that obliges us to accept frustrated theft. pero el culpale no llega a disponer de la cosa. y sin volencia o intimidación en las personas ni fuerza en las cosas.0. Los que con ánimo de lucrarse.0. since “pues es muy dificil que el que hace cuanto es necesario para la consumación del hurto no lo consume efectivamente. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah.”[83] Even as the answer was as stated in Diño.0. that decision’s factual predicate occasioning the statement was apparently very different from Diño. and was indeed derived from the 1888 decision of the Supreme Court of Spain. the 1870 Codigo Penal de España was then in place. 608. At the time our Revised Penal Code was enacted in 1930.[84] Nonetheless. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de lucro. 30 de octubre 1950. 3. Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que tenían preparado. cuando el resultado no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que impidió pudieran los reos disponer de lo sustraído. No se concibe la frustración. the said code would be revised again in 1932. as provided then. declara hurtos frustrados son verdaderos delitos consumados. pues es muy dificil que el que hace cuanto es necesario para la consumación del hurto no lo consume efectivamente. the crime of theft is now simply defined as “[e]l que. who was content with replicating the Spanish Supreme Court decisions on the matter. muy vacilante. 1.V. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence. as proposed in Diño and Flores. for it appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin. and who then proceeded to throw away the garment as he fled. and several times thereafter. However.0 y 3. si existe apoderamiento. It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. 1. los raros casos que nuestra jurisprudencia. toman las cosas muebles ajenas sin la voluntad de su dueño.0. la arroja al suelo. esta doctrina no es admissible. hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustracción. In fact. perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados. “la libre disposicion” of the property is not an element or a statutory characteristic of the crime. 607. El delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. Viada does not contest the notion of frustrated theft. The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de España. 12 abril 1930. 29 mayo 1889. tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado”[82] Notice that in the 1870 and 1995 definition of theft in the penal code of Spain.

the question is again. with intent to gain. even if he has no opportunity to dispose of the same. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent. whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. as representatives of the sovereign people. of personal property of another without the latter’s consent. that the ability of the offender to freely dispose of the property stolen delves into the concept of “taking” itself. a problem clearly emerges with the Diño/Flores dictum. Further. such as that the taking must be effected animo lucrandi and without the consent of the owner. we asserted in People v. for it would mean that not all the acts of execution have not been completed. the answer has to be in the negative. once having committed all the acts of execution for theft. as earlier cited. or redefine a crime in a manner that does not hew to the statutory language. to define what constitutes a particular crime in this jurisdiction. the “taking not having been accomplished. Viewed from that perspective. “The Court must take heed of language. the effect would be to downgrade the crime to its attempted. he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot. This conclusion is reflected in Chief Justice Aquino’s commentaries. to accept that theft is capable of commission in its frustrated stage. is deemed complete from the moment the offender gains possession of the thing. held that unlawful taking. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. but from the exercise of the function of statutory interpretation that comes as part and parcel of judicial review. we have. it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective. as we are not bound by the opinions of the respected Spanish commentators. it would arise not out of obeisance to an inexorably higher command. legislative history and purpose. the statutory definition of theft considers only the perspective of intent to gain on the part of the offender. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property. although his act of making use of the thing was frustrated.” Perhaps this point could serve as fertile ground for future discussion. in that there could be no true taking until the actor obtains such degree of control over the stolen item.[92] And long ago. It finds no support or extension in Article 308. when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. but our concern now is whether there is indeed a crime of frustrated theft. and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.”[91] It might be argued. Avila:[93] x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief. which idea is qualified by other conditions. (3) that the taking be done with intent to gain. V. conflicting as they are.[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a “narrow interpretation” is appropriate. The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature. which is to define a crime. a distinction of no slight importance. which is the taking.”[89] With that in mind. compounded by the deprivation of property on the part of the victim. after all. and long enough to load these onto a taxicab. such issue will not apply to the facts of this particular case. While the Diño/Flores dictum is considerate to the mindset of the offender. and such consideration proves ultimately immaterial to that question. or apoderamiento.[90] Such factor runs immaterial to the statutory definition of theft.[94] . it is immaterial to the product of the felony that the offender. which determines which acts or combination of acts are criminal in nature.Accordingly. But even if this were correct. With intent to gain. 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 his consent. For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage. if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Diño and Flores doctrines. (2) that said property belongs to another. It is Congress. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. Moreover. (4) that the taking be done without the consent of the owner. in order to strictly determine the wrath and breath of the conduct the law forbids. through statute. is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. as expressed primarily in the language of the law as it defines the crime. It is the legislature. and ordain its punishment. and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. and not frustrated stage. Indeed. not the courts. that “[i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same. If we did so.

the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. These cases do not enjoy the weight of stare decisis. “unlawful taking” is most material in this respect. Again. At the same time. causing the unlawful deprivation of property. the location of the property. there is no crime of frustrated theft. grounded in common sense. as implied in Diño? Or. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking. SO ORDERED. . the appreciation of several classes of factual circumstances such as the size and weight of the property. Diño itself did not rely on Philippine laws or jurisprudence to bolster its conclusion. Maybe the Diño/Flores rulings are. we can only conclude that under Article 308 of the Revised Penal Code. without unlawful taking as an act of execution. his petition must be denied. theft cannot have a frustrated stage. there is no language in Article 308 that expressly or impliedly allows that the “free disposition of the items stolen” is in any way determinative of whether the crime of theft has been produced. for therein. is the element which produces the felony in its consummated stage. Our deference to Viada yields to the higher reverence for legislative intent. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. But once all these acts have been executed. All these complications will make us lose sight of the fact that beneath all the colorful detail. in some degree. which is the deprivation of one’s personal property. Both fail to consider that once the offenders therein obtained possession over the stolen items. [95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. the effect could be to downgrade the crime to the attempted stage. the taking has been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances. if at all. Yet they do not align with the legislated framework of the crime of theft. Even the fungibility or edibility of the stolen item would come into account. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. As petitioner has latched the success of his appeal on our acceptance of the Diño and Flores rulings. relevant as that would be on whether such property is capable of free disposal at any stage.Insofar as we consider the present question. With these considerations. WHEREFORE. more likely. For such will remain the presumed fact if frustrated theft were recognized. Would this depend on the psychological belief of the offender at the time of the commission of the crime. Moreover. the number and identity of people present at the scene of the crime. their erroneous appreciation of our law on theft leave them susceptible to reversal. and even if they did. the effect of the felony has been produced as there has been deprivation of property. and the later Flores was ultimately content in relying on Diño alone for legal support. the manner in which the stolen item had been housed or stored. even after the taking has been consummated. Costs against petitioner. Theft can only be attempted or consummated. Unlawful taking. and quite frankly. as is evident in this case. Neither Diño nor Flores can convince us otherwise. for we decline to adopt said rulings in our jurisdiction. have been completed. the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. including the taking. and ultimately the consummation of the theft. as not all of the acts of execution have been performed. the adoption of the rule —that the inability of the offender to freely dispose of the stolen property frustrates the theft — would introduce a convenient defense for the accused which does not reflect any legislated intent. a regrettably stray decision which has not since found favor from this Court. the offense could only be attempted theft. We thus conclude that under the Revised Penal Code. The same holds true of Empilis. all of the acts of execution. a whole lot more. the petition is DENIED.

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