Luis Marcos Laurel vs Hon. Zeus Abrogar, GR No.

155076, January 13, 2009

FACTS

Laurel was charged with Theft under Art. 308 of the RPC for allegedly taking,
stealing, and using PLDT's international long distance calls by conducting
International Simple Resale (ISR) - “a method of outing and completing
international long distance calls using lines, cables, antennae, and/or air wave
frequency which connect directly to the local/domestic exchange facilities of the
country where the call is destined”. PLDT alleged that this service was stolen
from them using their own equipment and caused damage to them amounting to
P20,370,651.92. 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.

ISSUE

WON Laurel's act constitutes Theft

HELD

Art.308, RPC:

Theft is committed by any person who, with intent to gain but without violence
against, or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent
.
Elements of Theft underArt.308, RPC
:
1.There be taking of Personal Property;
2.Said Personal Property belongs to another;
3.Taking be done with Intent to Gain;
4.Taking be done without the owner’s consent;
5. No violence against, or intimidation of, persons or force upon things Personal
Property – anything susceptible of appropriation and not included in Real
Property

Thus, the term “personal property” as used in Art.308, RPC should be interpreted
in the context of the Civil Code's definition of real and personal property.
Consequently, any personal property , tangible or intangible, corporeal or
incorporeal, capable of appropriation may be the subject of theft
(*US v Carlos; US v Tambunting; US v Genato*), so long as the same is not
included in the enumeration of Real Properties under the Civil Code
The only requirement for personal property to capable of theft, is that it be
subject to appropriation (deprive the lawful owner of the thing)
Art. 416 (3) of the Civil Code deems “Forces of Nature” which are brought under
the control of science , as Personal Property. The appropriation of forces of
nature which are brought under control by science can be achieved by
tampering with any apparatus used for generating or measuring such forces of
nature, wrongfully redirecting such forces of nature from such apparatus, or using
any device to fraudulently obtain such forces of nature.

In the instant case, the act of conducting ISR operations by illegally connecting
various equipment or apparatus to PLDT’s telephone system, through which
petitioner is able to resell or reroute international long distance calls using
PLDT’s facilities constitute Subtraction.

Moreover, interest in business should be classified as personal property since it

is capable of appropriation, and not included in the enumeration of real
properties.

Therefore,the business of providing telecommunication or telephone service are

personal property which can be the object of theft under Art. 308 of the RPC. The
act of engaging in ISR is an act of “subtraction” penalized under the said article.
While international long distance calls take the form of electrical energy and may
be considered as personal property, the said long distance calls do not belong to
PLDT since it could not have acquired ownership over such calls. PLDT merely
encodes, augments, enhances, decodes and transmits said calls using its
complex communications infrastructure and facilities.
Since PLDT does not own the said telephone calls, then it could not validly claim
that such telephone calls were taken without its consent.

What constitutes Theft is the use of the PLDT's communications facilities without
PLDT's consent. The theft lies in the unlawful taking of the telephone services &
businesses. The Amended Information should be amended to show that the
property subject of the theft were services and business of the offended

G.R. No. 155076. January 13, 2009.*

LUIS MARCOS P. LAUREL, petitioner, vs. HON. ZEUS C. ABROGAR, Presiding
Judge of the Regional Trial Court, Makati City, Branch 150, PEOPLE OF THE
PHILIPPINES & PHILIPPINE LONG DISTANCE TELEPHONE COMPANY,
respondents.
Criminal Law; Theft; Elements of theft.—The elements of theft under Article 308 of
the Revised Penal Code are as follows: (1) that there be taking of personal property;
(2) that said
property belongs to another; (3) that the taking be done with intent to gain; (4) that
the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the
use of violence against or intimidation of persons or force upon things.

Same; Same; Property; The only requirement for a personal property to be the
object of theft under the Penal Code is that it be capable of appropriation.—The only
requirement for a personal property to be the object of theft under the penal code is
that it be capable of appropriation. It need not be capable of “asportation,” which is
defined as “carrying away.” Jurisprudence is settled that to “take” under the theft
provision of the penal code does not
require asportation or carrying away. To appropriate means to deprive the lawful
owner of the thing. The word “take” in the Revised Penal Code includes any act
intended to transfer possession which, as held in the assailed Decision, may be
committed through the use of the
offenders’ own hands, as well as any mechanical device, such as an access device
or card as in the instant case. This includes controlling the destination of the
property stolen to deprive the
owner of the property, such as the use of a meter tampering, as held in Natividad v.
Court of Appeals, 1 SCRA 380 (1961), use of a device to fraudulently obtain gas, as
held in United States v.Tambunting, and the use of a jumper to divert electricity, as
held in the cases of United States v. Genato, United States v. Carlos, and United
States v. Menagas, 11 N.E. 2d 403 (1937).

Same; Same; The act of conducting International Simple Resale (ISR) operations by
illegally connecting various equipment or apparatus to private respondent
Philippine Long Distance
Telephone’s (PLDT’s) telephone system, through which petitioner is able to resell or
re-route international long distance calls using respondent Philippine Long Distance
Telephone’s (PLDT’s) facilities constitutes all three acts of subtraction mentioned
above. —The acts of “subtraction” include: (a) tampering with any wire, meter, or
other apparatus installed or used for generating, containing, conducting, or
measuring electricity, telegraph or telephone service; (b) tapping or otherwise
wrongfully deflecting or taking any electric current from such wire, meter, or other
apparatus; 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. In the instant case, the act of conducting ISR operations by illegally
connecting various equipment or apparatus to private respondent PLDT’s telephone
system, through which petitioner is able to resell or reroute international long
distance calls using respondent PLDT’s facilities constitutes all three acts of
subtraction mentioned above. Same; Same; Telecommunication Industry; Property;
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.—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. Business may be appropriated under Section 2 of Act No. 3952
(Bulk Sales Law), hence, could be object of theft.
Civil Law; Property; Interest in business was declared to be personal property since
it is capable of appropriation and not included in the enumeration of real properties.
—Interest in business was not specifically enumerated as personal property in the
Civil Code in force at the time the above decision was rendered. Yet, interest in
business was declared to be personal property
since it is capable of appropriation and not included in the enumeration of real
properties. 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.
Business is likewise not enumerated as personal property under the Civil Code. Just
like interest in business, however, it may be appropriated. Following the ruling in
Strochecker v. Ramirez, 44 Phil. 933 (1922), business should also be classified as
personal property. Since it is not included in the exclusive enumeration of real
properties under Article 415, it is therefore personal property. Same; Same;
Electricity; Electricity is personal property under Article 416(3) of the Civil Code,
which enumerates “forces of nature which are brought under control by science.”—
It was conceded
that in making the international phone calls, the human voice is converted into
electrical impulses or electric current which are transmitted to the party called. A
telephone call, therefore, is electrical energy. 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

Electricity is personal property under Article 416 (3) of the Civil

Code, which enumerates “forces of nature which are brought
under control by science.”
Same; Same; Telecommunication Industry; It is the use of
these telecommunications facilities without the consent of
Philippine Long Distance Telephone (PLDT) that constitutes the
crime of theft, which is the unlawful taking of the telephone
services and business.—While it may be conceded that
“international long distance calls,” the matter alleged to be stolen
in the instant case, take the form of electrical energy, 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. PLDT merely encodes,
augments, enhances, decodes and transmits said calls using its
complex communications infrastructure and facilities. PLDT not
being the owner of said telephone calls, then it could not validly
claim that such telephone calls were taken without its consent. It
is the use of these communications facilities without the consent
of PLDT that constitutes the crime of theft, which is the unlawful
taking of the telephone services and business.
Same; Same; Same; The business of providing telecommunication
and the telephone service are personal property under Article 308
of the Revised Penal Code (RPC), and the act of engaging in
International Simple Resale (ISR) is an act of “subtraction”
penalized under said article.—The business of providing
telecommunication and the telephone service are personal
property under Article 308 of the Revised Penal Code, and the act
of engaging in ISR