Theft 

is committed by any person who takes personal property of another without the
latter's consent with intent to gain but without violence against or intimidation of persons
or force upon upon things (Art. 308, Revised Penal Code).

Theft is qualified under Art. 310 of the RPC, when it is, among others, committed with grave
abuse of confidence (People v. Mirto, G.R. No. 193479, October 19, 2011).

Elements of qualified theft committed with grave abuse of confidence:

1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owner’s consent;
5. That it be accomplished without the use of violence or intimidation against persons,
nor of force upon things;
6. That it be done with grave abuse of confidence. (People v. Mirto, G.R. No. 193479,
October 19, 2011).

● Abuse of confidence is determined from the trust entrusted by the offended party to the
offender, or the nature of the work of the offender, which must involve trust and
confidence. The grave abuse of confidence must arise out of the relation by reason of
dependence, guardianship, or vigilance, between the appellant and the offended party that
might create a high degree of confidence between them which the accused abused [People
v. Koc Song, 63 Phil. 369 (1936)].

● Is theft by a housemate always qualified? No. While access offered by the circumstance of
a housemate engenders a certain abuse of confidence, it is not necessarily grave. Goods
stolen might not have been entrusted to the custody or vigilance of the accused. 

The only fact alleged as constituting said circumstance is that the accused and the offended
party were housemates when the crime was committed. While this fact constitutes a certain
abuse of confidence, because living together under the same roof, although accidentally,
engenders some confidence, it is not necessarily grave, there being no allegation in the
information of another relation, by reason of dependence, guardianship or vigilance,
between the accused and the offended party, that might create a higher degree of
confidence between them, which the accused could abuse (People v. Koc Song, G.R. No. L-
45043 August 28, 1936).

● The mere circumstance that the accused worked as a laborer in the place where the theft
was committed, does not suffice to create the relation of confidence and intimacy that
the law requires. Theft by laborer is only simple theft (People vs Celis, 76 Phil 369).
●  Accused, a typist of the Provincial Government of Samar, asked the watchman of the
building for the key to the door of the session hall in order to use a typewriter. Accused
took and carried away the typewriter and later sold the same. It was contended that the
accused committed qualified theft because the watchman reposed confidence in him and
he gravely abused it. Held: The offended party in this case was the Provincial Government of
Samar, not the watchman. The confidence contemplated in Art. 310 is that existing
between the offended party and the offender (People vs Cabahug, C.A. 48 O.G. 2818).

Examples of qualified theft committed with grave abuse of confidence:

1. Theft by a truck driver who took and sold part of the gasoline requisitioned for the use of
the truck by its owner or by one who had access to the place where the stolen property is
kept.

2. Security guards who steal from a warehouse where they are hired to watch.

3. A project manager who repeatedly took construction materials from the project site,
without the authority and consent of the owner of the construction materials (Zapanta v.
People, G.R. No. 170863, March 20, 2013)

4. A branch manager of a cement company who deposited in his personal account checks
payable to cash which he received from the customers of his company in payment of the
cements delivered. Accused's position as a branch manager entailed a high degree of
confidence, having access to funds collected from UCC clients. Accused gravely abused the
trust and confidence reposed upon him by the management of UCC. By using that trust and
confidence, accused was able to perpetrate the theft of UCC funds to the grave prejudice of
the latter. (People v. Mirto, G.R. No. 193479, October 19, 2011). 

5. Accused, a cargo checker of PAL, who stole a funded traveller's check belonging to
FNCB. The fact that the FNCB which is the owner of the stolen negotiable notes is not the
employer of accused is of no moment. The relation of independence, guardianship, or
vigilance between the accused and the offended party makes the offense that of qualified
theft (People v. Seranilla, G.R. No. L-54090 May 9, 1988).

● Money received by an employee in behalf of his or her employer is considered to be only

in the material possession of the employee. The fact that accused-appellant had authority
to accept payments from customers does not give him the license to take the payments and
deposit them to his own account since juridical possession is not transferred to
him (People v. Mirto, G.R. No. 193479, October 19, 2011).
● Making the property accessible to the employee is an indication that the employer had
confidence on him that he will not steal the property. The employee abused such
confidence by stealing it. 

If the accused as an employee had no physical access to, or material possession of, the
stolen goods owned by his employer, the qualifying circumstance of abuse of confidence
cannot be appreciated (Judge Marlo B. Campanilla, Criminal Law Reviewer, Vol. 2, 2018 edition,
p. 340).