Republic of the Philippines

SUPREME COURT
6TH MUNICIPAL CIRCUIT TRIAL COURT
OF TAGOLOAN AND VILLANUEVA
Tagoloan, Misamis Oriental

PEOPLE OF THE PHILIPPINES, CRIM. CASE NO.

2020
Plaintiff,

-versus - For: Theft

NOEL BAJAO, (detained)

Accused.
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RESOLUTION TO MOTION TO QUASH

The Motion to Quash is DENIED.

Article 308 of the Revised Penal Code provides the following:

―Who are liable for theft. — 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.‖

For a person to be liable of Theft, the following elements must

concur, to wit:

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.

In the stipulated facts in the Resolution of the Prosecution:

―All the elements are present in this case. The 9 mm

pistol and the shot gun were taken by the respondent after the
commission of the crime of robbery. Hence, these were not
used in the commission of the said crime.
 Intent to gain or animus lucrandi is an internal act that is
presumed from the unlawful taking by the offender of the thing
subject of asportation.1 Although proof as to motive for the crime is
essential when the evidence of the theft is circumstantial, the intent to
gain is the usual motive to be presumed from all furtive taking of
useful property appertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.2

In Herman Medina v. People of the Philippines3, the Supreme

Court elucidates the concept of ―taking‖ –

―The only requirement for 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 x x x may be committed
through the use of the offenders' own hands, as well as any
mechanical device.‖

As the facts stipulated, ―That 9 mm pistol and the shot gun were
taken by the respondent after the commission of the crime of robbery.
Hence, these were not used in the commission of the said crime. The
crime of theft was already consummated when the respondent was
arrested by the police officers, and recovered from his possession
were the 9 mm pistol and shot gun, the subject items in this
complaint.‖

The burden to prove that there was not intent to gain was on
the part of the accused and not on the part of the Prosecution. In the
case of Theft, the intent to gain is the usual motive to be presumed
from all furtive taking of useful property appertaining to another,
unless special circumstances reveal a different intent on the part of
the perpetrator.4

1
People v. Tanchanco, G.R. No. 177761, April 18, 2012, 670 SCRA 130, 140-141
2
Beltran, Jr. et al. v. The Hon. Court of Appeals et al., 662 Phil. 296, 310-311 (2011)
3
GR. No. 182648, June 17, 2015
4
Beltran, Jr. et al. v. The Hon. Court of Appeals et al., 662 Phil. 296, 310-311 (2011
 Bajao failed to prove of overcoming that presumption by clear
and convincing evidence that would warrant this court to grant his
Motion to Quash.

So ordered.

THREJANN ACE L. NOLI

Presiding Judge