THE UNITED STATES, plaintiff-appellee, vs.

TOMAS ADIAO, defendant-appellant

October 8, 1918 | G.R. No. L-13785

MALCOLM, J.:

The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He was found guilty of the lesser crime of
frustrated theft. He appealed to the Court of First Instance of the city of Manila and again he was found guilty of the crime of frustrated
theft, and was sentenced to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs.

The sole error assigned on appeal is that the lower court erred in holding that the defendant was guilty of the crime of theft as dis closed
by the facts appearing of record. We have examined the evidence carefully and from our study are unable to say that the proof is
contrary to the findings of the lower court. Stated in one sentence, the defendant, Tomas Adiao, a customs inspector, abstracted a
leather belt valued at P0.80, from the baggage of a Japanese named T. Murakami, and secreted the belt in his desk in the Custom
House, where it was found by other customs employees.

Based on these facts, the Court is of the opinion that the crime can not properly be classified as frustrated, as this word is defined in
article 3 of the Penal Code, but that since the offender performed all of the acts of execution necessary for the accomplishment crime of
theft. The fact that the defendant was under observation during the entire transaction and that he was unable to get the merchandise out
of the Custom House, is not decisive; all the elements of the completed crime of theft are present. The following decisions of the
supreme court of Spain are in point:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit he was
seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court
said: “. . . The trial court did not err . . . 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. (Decision of the supreme court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity
of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the
church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of
execution and considered the theft as consummated. (Decision of the supreme court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box,
which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then placed the
money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The
court considered this as consummated robbery, and said: ” . . . The accused . . . having materially taken possession of the money from
the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been
frustrated, which, however, does not go to make the elements of the consummated crime. (Decision of the supreme court of Spain, June
13, 1882.)

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There exists the aggravating circumstance that advantage was taken by the offender of his public position. Wherefore, in view of the
provisions of articles 517 and 518, No. 5, of the Penal Code, and there being present one aggravating circumstance compensated by no
mitigating circumstances, the penalty must be imposed in the maximum degree.

Judgment is reversed and the defendant and appellant is sentenced to three months and one day ofarresto mayor, with the costs of all
instances against him. The merchandise in question, attached to the record as Exhibit A, shall be returned to the lawful owner, T.
Murakami. So ordered.

Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.

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