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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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library
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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

II. In affirming the conviction of petitioner based upon an extra-judicial confession extracted through duress. virtualawlibrary virtual law library

III. In affirming the decision of the court a quo based upon the evidence on record adduced during the trial. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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. virtualawlibrary virtual law library

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 - .
(1) When the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken,
absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary
to the admissions of both appellant and appellee. 2virtual law library

and that the case at bar does not fall under any of the foregoing exceptions. virtualawlibrary virtual law library

The third assignment of error is predicated upon the theory that the evidence for the prosecution is contradictory and, hence, unworthy of credence. Counsel for the
defense alleges that, whereas Ignacio Peñaflor said that the thieves had entered his house by forcing its door open, Mrs. Peñaflor testified that their entry was effected
through an excavation by the side of the house, and the chief of police affirmed that the malefactors had removed a piece of wood and an adobe stone to get into said
house. No such contradictions, however, exist. The house of Mr. and Mrs. Peñaflor consisted of two (2) parts, one of which was a store and the other the dwelling
proper, adjoining the store, which had a door leading thereto (to the dwelling proper). Mrs. Peñaflor testified that the culprits had entered the store by removing an
adobe stone from a wall thereof, and this was corroborated by the chief of police, although he added that the malefactors had, also, removed a piece of wood from said
wall. Upon the other hand, the testimony of Mr. Peñaflor referred to a door, inside the store, leading to the dwelling proper, as distinguished from the store. virtualawlibrary virtual law library

In the light of the foregoing, and considering that the findings of fact made by the Court of Appeals are supported by those of His Honor, the trial Judge, who had
observed the behaviour of the witnesses during the trial, it is clear to Us that the first three (3) assignments of error are untenable. virtualawlibrary virtual law library

The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor. It should be noted that the Court of Appeals
affirmed the decision of the trial court convicting Napolis, Malana and Satimbre of the crime of robbery committed by armed persons, in an inhabited house, entry
therein having been made by breaking a wall, as provided in Article 299 (a) of the Revised Penal Code, and, accordingly, sentencing Napolis and Satimbre to an
indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum, which is in accordance with said legal provision. virtualawlibrary virtual law library

In addition, however, to performing said acts, the malefactors had, also, used violence against Ignacio Peñaflor , and intimidation against his wife, thereby infringing
Article 294 of the same Code, under conditions falling under sub-paragraph (5) of said article, which prescribes the penalty of prision correccional in its maximum
period to prision mayor in its medium period, which is lighter than that prescribed in said Article 299, although, factually, the crime committed is more serious than that
covered by the latter provision. This Court had previously ruled - .

... that where robbery, though committed in an inhabited house, is characterized by intimidation, this factor "supplies the controlling
qualification," so that the law to apply is article 294 and not article 299 of the Revised Penal Code. 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, 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."
(U.S. vs. Turla, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89.) And this view is followed even where, as in the present case, the penalty to be
applied under article 294 is lighter than that which would result from the application of article 299. ... . 3 virtual law library

Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one who, by breaking a wall, enters, with a deadly weapon, an inhabited house
and steals therefrom valuable effects, without violence against or intimidation upon persons, is punishable under Art. 299 of the Revised Penal Code with reclusion
temporal. 4 Pursuant to the above view, adhered to in previous decision, 5 if, aside from performing said acts, the thief lays hand upon any person, without committing
any of the crimes or inflicting any of the injuries mentioned in subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty -- under paragraph (5)
thereof -- shall be much lighter. 6 To our mind, this result and the process of reasoning that has brought it about, defy logic and reason. virtualawlibrary virtual law library

The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification," is far from sufficient to justify said result. 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,"
but, precisely, for this reason, We cannot accept the conclusion deduced therefrom in the cases above cited - reduction of the penalty for the latter offense owing to the
concurrence of violence or intimidation which made it a more serious one. It is, to our mind, more plausible to believe that Art. 294 applies only where robbery with
violence against or intimidation of person takes place without entering an inhabited house, under the conditions set forth in Art. 299 of the Revised Penal Code. virtualawlibrary virtual law library

We deem it more logical and reasonable to hold, as We do, when the elements of both provisions are present, that the crime is a complex one, calling for the imposition
-- as provided in Art. 48 of said Code -- of the penalty for the most serious offense, in its maximum period, which, in the case at bar, is reclusion temporal in its
maximum period. This penalty should, in turn, be imposed in its maximum period -- from nineteen (19) years, one (1) month and eleven (11) days to twenty (20) years
of reclusion temporal - owing to the presence of the aggravating circumstances of nighttime. In short, the doctrine adopted in U.S. v. De los Santos 7 and applied in U.S.
v. Manansala, 8 U.S. v. Turla, 9 People v. Baluyot, 10 Manahan v. People, 11 andPeople v. Sebastian, 12 is hereby abandoned and appellant herein should be sentenced to
an indeterminate penalty ranging from ten (10) years, and one (1) day of prision mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion
temporal.virtualawlibrary virtual law library

Thus modified as to the penalty, the decision of the Court of Appeals is hereby affirmed in all other respects, with costs against herein appellant, Nicanor Napolis. It is
so ordered.

Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur. virtualawlibrary virtual law library

Makasiar, J., took part.


PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JAIME MACABALES y CASIMIRO @ JAIME CEREZA y CASIMIRO and JAIME
MACABALES y CEREZA, ABNER CARATAO y SANCHEZ, ROMANO REYES y COSME, MARCELINO TULIAO y AGDINAWAY, RENATO
MAGORA y BURAC and RICHARD DE LUNA y RAZON, accused-appellants.

QUISUMBING, J.: virtual law library

On appeal is the decision[1] dated March 25, 1993 of the Regional Trial Court of Makati City, Branch 56, in Criminal Case No. 1669, finding accused-appellants Jaime
Macabales, Abner Caratao, Romano Reyes, 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. virtual law library

In an Information dated March 28, 1990, said appellants and Richard De Luna, a minor, were charged as follows: virtual law library

That on or about the 13th day of March, 1990, in the Municipality of Makati, Metro Manila, Philippines a place within the jurisdiction of this Honorable Court, the
above-named accused, while armed with [a] fan knife, with intent of gain and by means of force, violence and intimidation, conspiring and confederating together and
mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously grab, steal and carry away the brown leather bag containing the
following items, to wit: virtual law library

Cash money P5,000.00 virtual law library

Three (3) Seiko Wrist virtual law library

Watches 6,000.00 virtual law library

Pair of Earring[s] 1,000.00 virtual law library

all in the total amount of P12,000.00 belonging to Eva Katigbak, to the damage and prejudice of the latter in the aforementioned amount of P12,000.00, while the said
complainant Eva Katigbak was waiting for a ride along Ayala Avenue corner Herrera Street which is a Philippine highway; that as a result or on the occasion of the said
robbery, the said accused, conspiring and confederating together and mutually helping and aiding one another, with intent to kill, did then and there willfully and
feloniously stab Miguel Katigbak, a brother of Eva Katigbak, as a result of which the said victim suffered mortal and serious stab wounds which directly caused his
death. virtual law library

That in the commission of the said crime, the aggravating circumstance of use of motor vehicle was present. virtual law library

CONTRARY TO LAW.[2] virtual law library

Arraigned on May 23, 1990,[3] the accused pleaded not guilty. Trial thereafter ensued. However, during the trial only Abner Caratao, Romano Reyes, Marcelino
Tuliao, Renato Magora and Richard De Luna[4] were present in person. Jaime Macabales jumped bail and has remained at large. He was tried in absentia. virtual law library

On March 25, 1993, the trial court rendered its decision, finding appellants guilty of the special complex crime of attempted robbery with homicide. In said decision,
however, the trial court suspended the imposition and promulgation of the sentence on accused Richard De Luna, who was under eighteen (18) years of age at the time
the crime was committed. The dispositive portion[5] of said judgment reads: virtual law library

WHEREFORE, finding accused Jaime Macabales, Abner Caratao, Romano Reyes, Marcelino Tuliao and Renato Magora guilty beyond reasonable doubt of having
committed the offense of attempted robbery with homicide, defined and penalized under Art. 297 of the Revised Penal Code, there being (the) aggravating
circumstances of treachery and the use of motor vehicle and no mitigating circumstance that attended the commission of the offense, 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 P50,000.00 for the loss (sic) of his life and another sum of
P50,000.00 for moral damages, and to pay the costs of the suit.

xxx virtual law library

Considering that accused Richard de Luna was at the time of the commission of the offense only fifteen years, nine months and six days and classified as a youthful
offender, pursuant to Art. 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, 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, Tanay, Rizal, 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.

xxx virtual law library

SO ORDERED. virtual law library

Appellants herein seasonably interposed their appeal. However, since Jaime Macabales had jumped bail, this Court in its resolution dated January 17, 1990, dismissed
his appeal. We are now concerned only with the appeal of Caratao, Reyes, Tuliao, Magora and De Luna. virtual law library

The facts, as narrated by the Solicitor General, are as follows: virtual law library
On the night of March 13, 1990, about 8:00 P.M., Marine Captain Miguel Katigbak and his sister, Eva Katigbak, were heading towards the Makati Commercial Center
(along Pasong Tamo Street) for a late night shopping and dinner. They were waiting for a ride in the corner of Ayala Avenue and Herrera Street in Makati, Metro
Manila. A passenger jeepney slowly approached them. When it was directly in front of them, one of the occupants, namely accused Jaime Macabales, grabbed the
handbag Eva was carrying. Eva helped by his brother, held on to her bag as Macabales pulled it. The strap snapped, and the bag fell on the pavement. While Eva tried to
retrieve the bag, the jeepney stopped and its occupants -- Reyes, Magora, Tuliao, De Luna and Macabales and Caratao -- all alighted and accosted Miguel and Eva.
Miguel, who was skilled in martial arts, threw down the three attackers. The two others joined the fray and held the arms of Miguel, immobilizing and rendering him
defenseless. Macabales, who had not joined the initial assault, suddenly pulled out a knife and stabbed Miguel repeatedly on the chest. The group boarded the jeepney
and sped in the direction of Makati Avenue, leaving the severely wounded Miguel clutching his chest. virtual law library

Still in shock, Eva went to his aid. She laid him down on the pavement and looked for a phone booth to call another brother, Jerry Katigbak, whose condominium was
nearby. 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. As she came
out of the PT & T office where she made the call, she saw that some passers-by loaded her brother in a taxi. She boarded the taxi and accompanied her brother to the
Makati Medical Center. Miguel died a few minutes after they arrived at the hospital.[6] virtual law library

The prosecution evidence included the testimony of Pfc. Eduardo Guadalupe, who testified that while manning traffic along the corners of Pasong Tamo and Pasay
Road in Makati, 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. After a brief chase, they overtook the passenger jeepney along Buendia Avenue. Pat. Binalla fired a warning shot and ordered the suspects to alight and lie
down the road. As accused Macabales alighted, a fan knife fell from him. Pfc. Guadalupe picked the knife and noticed it was sticky. The officers told the suspects to
board the jeepney, and ordered the driver to proceed to the police station. While on the way to the station, Guadalupe asked who owned the bloodied knife, and accused
Macabales admitted owning it.[7] virtual law library

Dr. Maximo Reyes, a medico-legal officer at the NBI, who conducted the post-mortem examination and caused the preparation of the autopsy report, testified that
Miguel sustained a stab wound in his middle back penetrating to his left chest and two more in his stomach. Two of the wounds were fatal and these could have been
caused by two or more bladed instruments.[8] virtual law library

The defense, for its part, understandably presented a different version. virtual law library

According to Romano Reyes on March 13, 1990, after his work at 5:00 P.M., he proceeded to the house of his relative Leticia Jimena, at Davila Street because he
would be meeting his foreman, Virgilio Encarnacion, to get his salary from him. The house of his relative was just 150 meters away from his own house. While he was
waiting, a friend named Benjamin Santiago, whose house was nearby, ordered three bottles of beer to drink. They finished drinking between 6:00 and 7:00 P.M. The
person he was waiting for did not arrive. Because he was drunk, he rested in a jeepney owned by Tuliao which was parked in front of the house of Santiago. He
stretched out on the seat inside the jeepney. Later on, the driver woke him up because the jeepney would be used in bringing the guests of Tuliao to Ayala Avenue. He
asked to be allowed to continue his sleep and go with them. When the jeepney left Davila Street, he went on sleeping until a shot at Pasong Tamo woke him. The
policeman informed them that one of their companions stabbed somebody at the corner of Ayala Avenue and Herrera Street. They were brought to the police
headquarters. He also admitted that Macabales and he were members of Sputnik gang, and he knew all of the accused because they all resided at Davila Street. He
denied alighting from the jeepney at Ayala Avenue with the other accused who ganged up on the victim. He did not talk with the other accused inside the jeepney as he
was asleep. He did not see nor notice Roger Paloma inside the jeepney. virtual law library

Benjamin Santiago corroborated the story of Reyes. 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 knew Tuliao, Magora and the other accused. He said Reyes and he were not with the accused that evening. virtual law library

Renato Magora testified that Tuliao was the owner of the jeepney he was driving. Paloma was a guest of Tuliao the night of the crime. The latter could not drive his
jeepney at that time because he was not well, so he asked Magora to bring Paloma to the terminal along Ayala Avenue. Inside the jeepney were Macabales, Caratao, De
Luna, Reyes, Tuliao and Magora. He said he did not know why the others were there. Between the hours of 6:00 P.M. and 7:00 P.M. they drove along Ayala Avenue. A
man and a woman flagged down the jeepney, but he decided not to pick-up passengers because one of his companions, Caratao, was lying in the jeepney without
clothes on. He slowed down the jeepney because there were people crossing the street. Tuliao heard a man utter Bastos. Angered, Tuliao got off the jeepney. Tuliao
accosted the man. Later Tuliao returned and told him to drive on because the man was a marine captain. He did not know if Tuliao and the man had a fight. He did not
see Macabales get off the jeepney. It was only when the jeepney was moving that he saw Macabales running after them. Macabales caught up and sat behind Luna and
him. They drove to Ayala Avenue and turned right to Makati Avenue. Macabales kept transferring from one seat to the other. He did not have any idea why. There was
no taxi tailing the jeepney. At Goldilocks, someone flagged them, 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. It was only then that he felt nervous. He did not notice any policeman who flagged them to stop. They proceeded to Buendia
Avenue. A taxi blocked their way in the intersection. He heard warning shots and he stopped driving. He asked the policeman what the problem was and he even gave
his drivers license. They all got off the jeepney. When Macabales was frisked by the police, a knife fell from him. He did not see Macabales holding a knife inside the
jeepney, although Macabales did point something on his body. Macabales admitted owning the knife. At the police headquarters Macabales admitted that he was the
one who stabbed the victim. Magora said he did not notice where Paloma alighted. He also denied any participation in the mauling and stabbing of the victim.[9] virtual law library

Marcelino Tuliao testified that at about 6:00 P.M. on March 13, 1990, he was at his house with Rey Magora and Roger Paloma who repaired his gas stove. After the
repair, he asked Magora to drive Rey and Roger to their homes in the jeepney. De Luna, Caratao, Reyes and Macabales rode with them. At the corner of Ayala Avenue
and Herrera Street, he saw persons stopping their jeepney. He heard somebody shout Bastos. He told Magora to stop and he went to find out who shouted. The others in
the jeepney did not alight. When he learned that the man was a marine captain whom he later came to know as Miguel Katigbak, he went back to the jeepney. When he
looked back, he saw Macabales and Katigbak fighting. Macabales was holding a knife. While the fight was going on, he and Magora were in the front seat of the
jeepney. The others were at the back seats. He did not see any of them help Macabales. When Macabales returned to the jeepney, he instructed Magora to drive on.
Tuliao said he did not look back again because he was worried and afraid that the police might apprehend them. The jeepney went straight along Ayala Avenue. He
could not remember where the jeepney turned because he was drunk. At Pasong Tamo, they were blocked by the police and warning shots were fired. He was afraid of
being caught. He saw the knife when it fell from Macabales. It was picked up by Pat. Guadalupe. They were brought to the police precinct. A woman pointed to
Macabales as the one who stabbed the deceased.[10] virtual law library

In their appeal, Magora, Tuliao and De Luna assign the following errors: virtual law library

1. THAT THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY TO COMMIT THE CRIME CHARGED AMONG ACCUSED-
APPELLANTS; virtual law library
2. 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; virtual law library

3. THAT THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF TREACHERY IN THE CONVICTION OF ACCUSED-
APPELLANTS.[11] virtual law library

Appellant Romano Reyes, on the other hand, assigns the following errors: virtual law library

1. THAT THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED ACTED IN CONSPIRACY WITH THE OTHER ACCUSED; virtual law library

2. THAT THE TRIAL COURT ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF HAVING COMMITTED THE CRIME OF
ATTEMPTED ROBBERY WITH HOMICIDE.[12] virtual law library

First, appellants fault the trial courts conclusion that there was conspiracy among appellants. They aver that Eva Katigbaks testimony does not establish conspiracy
among appellants. Second, they assert that, court a quo erred in convicting them of robbery with homicide under Article 297 of the Revised Penal Code, considering
that the Information charged them with Highway Robbery with Homicide under a special law, P.D. No. 532. virtual law library

Primarily, they question the credibility of Eva Katigbak. Eva testified that Reyes, Magora and Tuliao admitted that the three of them, together with Macabales, Caratao,
and De Luna were present at the time and at the scene of the commission of the offense; 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; and that Macabales stabbed Miguel, while two of the accused were holding his arms and the three with whom
Miguel fought were surrounding him. We find no reason, however, why Eva should lie in implicating all the accused. We find her testimony straight-forward,
unhesitating and sincere. Between the self-serving testimonies of the accused and the positive identification of the assailants made by the prosecution witness, the latter
deserves greater credence.[13] virtual law library

The medico-legal officer found that five frontal stab wounds could not have been successfully inflicted by Macabales on Miguel, who was a marine captain and
supposedly knowledgeable about the art of self-defense, if Macabales was not assisted by his companions. The concerted action in attacking Miguel as narrated by Eva
is an indication that the perpetrators knew beforehand what to do. The coordinated actions they executed showed conspiracy among them. Settled is the rule that
conspiracy need not be proved by direct evidence of prior agreement on the commission of the crime,[14] as this could be inferred from the conduct of the accused
before, during and after the commission of the crime, showing that accused acted in unison with each other, evidencing a common purpose.[15] Even if there was no
direct proof of appellants previous agreement to kill the victim, their individual acts when massed together, clearly manifested that they were acting in concert. They
helped one another kill Miguel, and they left together after accomplishing their deed. 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, 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.[16] In point of law, 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.
[17] virtual law library

Appellants assert that the court a quo erred in applying Article 297 of the Revised Penal Code, in convicting them, as the crime they are charged is punishable by a
special law, P. D. No. 532. virtual law library

The Information charged appellants with Highway Robbery with Homicide under P.D. No. 532 which reads: virtual law library

Sec. 2. (e) Highway Robbery/Brigandage - The seizure of any person for ransom, extortion or other unlawful purposes, 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, committed by any person on any Philippine highway. virtual law library

Sec. 3. (b) The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the
commission of the robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or
extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed. virtual law library

Article 297, Revised Penal Code provides: virtual law library

When by reason or on occasion of an attempted or frustrated robbery a homicide is committed, the person guilty of such offense shall be punished by reclusion
temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher penalty under the provisions of this Code. virtual law library

Sec. 4 and 5 of Rule 120 of the Rules on Criminal Procedures is likewise pertinent. It reads: virtual law library

Sec. 4 Judgment in case of variance between the allegation and proof - When there is a variance between the offense charged in the complaint or information, and that
proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense
proved included in that which is charged, or of the offense charged included in that which is proved. virtual law library

Sec. 5 When an offense includes or is included in another - An offense charged necessarily includes that which is proved, when some of the essential elements or
ingredients of the former, as this is alleged in the complaint or information, constitutes the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitutes or form a part of those constituting the latter. virtual law library

In our view, the trial court was correct in convicting appellants of the crime of attempted robbery with homicide under Article 297 of the Revised Penal Code.
Appellants may be convicted for a crime other than that designated by the formal charge. When there is a variance between the offense charged and the offense proved,
the defendant may be convicted of the offense proved if it is included in the offense charged. Likewise, he may be convicted of the offense charged if it is included in
the offense proved. It is not necessary that all the essential elements of the offense charged in the information be proved. It is sufficient that some of the essential
elements are established, to constitute the crime proved. The elements of Robbery with Homicide as defined in Art. 297 of the Revised Penal Code are: (1) There is an
attempted or frustrated robbery. (2) A homicide is committed. Both elements are among the elements of Highway Robbery with Homicide under P.D. 523 and were
duly proved in this case. virtual law library

Additionally, in the interpretation of an information, what controls is not the designation but the description of the offense charged.[18]Considering the allegations of
the aforequoted Information, appellants should be liable for the special complex crime of attempted robbery with homicide under Article 297 of the Revised Penal
Code, since the homicide committed during a robbery attempt was proved beyond reasonable doubt. Likewise the use of a motor vehicle, a jeepney, by appellants
during the commission of the offense has been established beyond dispute. virtual law library

Finally, appellants contend that the trial court erred in concluding that the aggravating circumstance of treachery is present. They aver that treachery applies to crimes
against persons and not to crimes against property. However, we find that the trial court in this case correctly characterized treachery as a generic aggravating, rather
than qualifying, circumstance. 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, as their other companions surrounded them. In People v. Salvatierra,[19] we ruled that when alevosia (treachery) obtains in the
special complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance. Robbery with homicide is a composite crime
with its own definition and special penalty in the Revised Penal Code. There is no special complex crime of robbery with murder under the Revised Penal Code.
[20] Here, treachery forms part of the circumstances proven concerning the actual commission of the complex crime. Logically it could not qualify the homicide to
murder but, as generic aggravating circumstance, it helps determine the penalty to be imposed. virtual law library

WHEREFORE, the decision of the Regional Trial Court of Makati City dated March 25, 1993 is AFFIRMED. Appellants Abner Caratao, Romano Reyes, 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. 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, let the records of this case be remanded to the trial court for appropriate action concerning said accused. Costs against appellants. virtual law library

SO ORDERED. virtual law library

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.


Laurel v. Abrogar

YNARES-SANTIAGO, J.:

On February 27, 2006, this Court’s First Division rendered judgment in this case as follows:

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional Trial Court and the
Decision of the Court of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is directed to issue an order granting the motion
of the petitioner to quash the Amended Information.

SO ORDERED.[1]

By way of brief background, petitioner is one of the accused in Criminal Case No. 99-2425, filed with
the Regional Trial Court of Makati City, Branch 150. The Amended Information charged the accused with theft under Article 308 of the Revised
Penal Code, committed as follows:

On or about September 10-19, 1999, or prior thereto in Makati City, and within the jurisdiction of this Honorable Court, the accused,
conspiring and confederating together and all of them mutually helping and aiding one another, with intent to gain and without the knowledge
and consent of the Philippine Long Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal and use the
international long distance calls belonging to PLDT by conducting International Simple Resale (ISR), which is a method of routing and
completing international long distance calls using lines, cables, antenae, and/or air wave frequency which connect directly to the local or
domestic exchange facilities of the country where the call is destined, effectively stealing this business from PLDT while using its facilities in the
estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in the said amount.

CONTRARY TO LAW.[2]

Petitioner filed a “Motion to Quash (with Motion to Defer Arraignment),” on the ground that the factual allegations in the Amended
Information do not constitute the felony of theft. The trial court denied the Motion to Quash the Amended Information, as well petitioner’s
subsequent Motion for Reconsideration.

Petitioner’s special civil action for certiorari was dismissed by the Court of Appeals. Thus, petitioner filed the instant petition for review
with this Court.

In the above-quoted Decision, 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.

Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion for Reconsideration with Motion to Refer the Case to
the Supreme Court En Banc. It maintains that the Amended Information charging petitioner with theft is valid and sufficient; 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, 1999 in Makati City by conducting ISR or International Simple Resale; 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 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.

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. The enumeration of real properties in Article 415 of the Civil Code is exclusive such that all those not included therein are personal
properties. Since Article 308 of the Revised Penal Code used the words “personal property” without qualification, it follows that all “personal
properties” as understood in the context of the Civil Code, may be the subject of theft under Article 308 of the Revised Penal Code. 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.

PLDT also argues that “taking” in relation to theft under the Revised Penal Code does not require “asportation,” the sole requisite being
that the object should be capable of “appropriation.” 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, at the time of the “taking,” of withholding it with the
character of permanency. There must be intent to appropriate, which means to deprive the lawful owner of the thing. Thus, the term “personal
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.”

PLDT likewise alleges that as early as the 1930s, international telephone calls were in existence; hence, 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.

According to respondent, the “international phone calls” which are “electric currents or sets of electric impulses transmitted through a
medium, and carry a pattern representing the human voice to a receiver,” are personal properties which may be subject of theft. Article 416(3) of the
Civil Code deems “forces of nature” (which includes electricity) which are brought under the control by science, are personal property.

In his Comment to PLDT’s motion for reconsideration, petitioner Laurel claims that a telephone call is a conversation on the phone or a
communication carried out using the telephone. It is not synonymous to electric current or impulses. Hence, it may not be considered as personal
property susceptible of appropriation. Petitioner claims that the analogy between generated electricity and telephone calls is misplaced. PLDT does
not produce or generate telephone calls. It only provides the facilities or services for the transmission and switching of the calls. He also insists that
“business” is not personal property. It is not the “business” that is protected but the “right to carry on a business.” This right is what is considered as
property. Since the services of PLDT cannot be considered as “property,” the same may not be subject of theft.

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, may be proper
subjects of theft. It noted that the cases of United States v. Genato,[3] United States v. Carlos[4] and United States v. Tambunting,[5] which recognized
intangible properties like gas and electricity as personal properties, are deemed incorporated in our penal laws. Moreover, 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.

According to the OSG, prosecution under Republic Act (RA) No. 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. The latter embraces
unauthorized appropriation or use of PLDT’s international calls, service and business, for personal profit or gain, to the prejudice of PLDT as owner
thereof. On the other hand, the special laws punish the surreptitious and advanced technical means employed to illegally obtain the subject service
and business. Even assuming that the correct indictment should have been under RA 8484, the quashal of the information would still not be
proper. The charge of theft as alleged in the Information should be taken in relation to RA 8484 because it is the elements, and not the designation of
the crime, that control.

Considering the gravity and complexity of the novel questions of law involved in this case, the Special First Division resolved to refer the same
to the Banc.

We resolve to grant the Motion for Reconsideration but remand the case to the trial court for proper clarification of the Amended
Information.

Article 308 of the Revised Penal Code provides:

Art. 308. 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.

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.

Prior to the passage of the Revised Penal Code on December 8, 1930, the definition of the term “personal property” in the penal code provision
on theft had been established in Philippine jurisprudence. This Court, in United States v. Genato, United States v. Carlos, and United States v.
Tambunting, consistently ruled that any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object
of theft.

Moreover, since the passage of the Revised Penal Code on December 8, 1930, the term “personal property” has had a generally accepted
definition in civil law. In Article 335 of the Civil Code of Spain, “personal property” is defined as “anything susceptible of appropriation and not
included in the foregoing chapter (not real property).” Thus, 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, and have been adopted by the legislature as having a certain meaning prior to a
particular statute, in which they are used, the words used in such statute should be construed according to the sense in which they have been
previously used.[6] In fact, this Court used the Civil Code definition of “personal property” in interpreting the theft provision of the penal code
in United States v. Carlos.

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, still the legislature did not limit or qualify the definition of “personal property” in the Revised Penal Code. Neither did it provide
a restrictive definition or an exclusive enumeration of “personal property” in the Revised Penal Code, thereby showing its intent to retain for the term
an extensive and unqualified interpretation. Consequently, 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.

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.” [7] Jurisprudence is settled that to “take” under the theft provision of the penal code
does not require asportation or carrying away.[8]

To appropriate means to deprive the lawful owner of the thing.[9] 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,[10] use of a device to fraudulently obtain gas, as held
inUnited 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]

As illustrated in the above cases, 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, wrongfully redirecting such forces of nature from
such apparatus, or using any device to fraudulently obtain such forces of nature. In the instant case, petitioner was charged with engaging in
International Simple Resale (ISR) or the unauthorized routing and completing of international long distance calls using lines, cables, antennae, and/or
air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined.

As early as 1910, the Court declared in Genato that ownership over electricity (which an international long distance call consists of), as well
astelephone service, is protected by the provisions on theft of the Penal Code. The pertinent provision of the Revised Ordinance of the City
of Manila, which was involved in the said case, reads as follows:

Injury to electric apparatus; Tapping current; Evidence. – No person shall destroy, mutilate, deface, or otherwise injure or tamper with
any wire, meter, or other apparatus installed or used for generating, containing, conducting, or measuring electricity, telegraph or telephone
service, nor tap or otherwise wrongfully deflect or take any electric current from such wire, meter, or other apparatus.

No person shall, for any purpose whatsoever, 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; and the existence in any building premises of any such device shall, in the absence
of satisfactory explanation, be deemed sufficient evidence of such use by the persons benefiting thereby.

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, thus:

Even without them (ordinance), the right of the ownership of electric current is secured by articles 517 and 518 of the Penal Code; the
application of these articles in cases of subtraction of gas, a fluid used for lighting, and in some respects resembling electricity, is confirmed by
the rule laid down in the decisions of the supreme court of Spain of January 20, 1887, and April 1, 1897, construing and enforcing the provisions
of articles 530 and 531 of the Penal Code of that country, articles 517 and 518 of the code in force in these islands.
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 re-route international long distance calls using respondent PLDT’s facilities constitutes
all three acts of subtraction mentioned above.

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:

Section 2. Any sale, transfer, mortgage, or assignment of a stock of goods, wares, merchandise, provisions, or materials otherwise
than in the ordinary course of trade and the regular prosecution of the business of the vendor, mortgagor, transferor, or assignor, or any sale,
transfer, mortgage, or assignment of all, or substantially all, of the business or trade theretofore conducted by the vendor, mortgagor, transferor or
assignor, or all, or substantially all, of the fixtures and equipment used in and about the business of the vendor, mortgagor, transferor, or assignor,
shall be deemed to be a sale and transfer in bulk, in contemplation of the Act. x x x.

In Strochecker v. Ramirez,[12] this Court stated:

With regard to the nature of the property thus mortgaged which is one-half interest in the business above described, 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, and may be the
subject of mortgage.

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, 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.[13]

As can be clearly gleaned from the above disquisitions, petitioner’s acts constitute theft of respondent PLDT’s business and service,
committed by means of the unlawful use of the latter’s facilities. In this regard, the Amended Information inaccurately describes the offense by
making it appear that what petitioner took were the international long distance telephone calls, rather than respondent PLDT’s business.

A perusal of the records of this case readily reveals that petitioner and respondent PLDT extensively discussed the issue of ownership of
telephone calls. The prosecution has taken the position that said telephone calls belong to respondent PLDT. 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, service and
facilities, for the purpose of generating personal profit or gain that should have otherwise belonged to PLDT, constitutes theft.”[14]

In discussing the issue of ownership, petitioner and respondent PLDT gave their respective explanations on how a telephone call is generated.
[15]
For its part, respondent PLDT explains the process of generating a telephone call as follows:

38. The role of telecommunication companies is not limited to merely providing the medium (i.e. the electric current) through
which the human voice/voice signal of the caller is transmitted. Before the human voice/voice signal can be so transmitted, a telecommunication
company, using its facilities, must first break down or decode the human voice/voice signal into electronic impulses and subject the same to
further augmentation and enhancements. Only after such process of conversion will the resulting electronic impulses be transmitted by a
telecommunication company, again, through the use of its facilities. Upon reaching the destination of the call, 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. In other
words, a telecommunication company both converts/reconverts the human voice/voice signal and provides the medium for transmitting the same.

39. Moreover, in the case of an international telephone call, once the electronic impulses originating from a foreign
telecommunication company country (i.e. Japan) reaches the Philippines through a local telecommunication company (i.e. private respondent
PLDT), it is the latter which decodes, augments and enhances the electronic impulses back to the human voice/voice signal and provides the
medium (i.e. electric current) to enable the called party to receive the call. Thus, 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.
40. Thus, contrary to petitioner Laurel’s assertion, once the electronic impulses or electric current originating from a foreign
telecommunication company (i.e. Japan) reaches private respondent PLDT’s network, it is private respondent PLDT which decodes, augments
and enhances the electronic impulses back to the human voice/voice signal and provides the medium (i.e. electric current) to enable the called
party to receive the call. Without private respondent PLDT’s network, the human voice/voice signal of the calling party will never reach the
called party.[16]

In the assailed Decision, 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.”[17]

Indeed, 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.

Therefore, 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 is an act of “subtraction” penalized under said article. However, the Amended Information describes the
thing taken as, “international long distance calls,” and only later mentions “stealing the business from PLDT” as the manner by which the gain was
derived by the accused. In order to correct this inaccuracy of description, this case must be remanded to the trial court and the prosecution directed to
amend the Amended Information, to clearly state that the property subject of the theft are the services and business of respondent
PLDT. Parenthetically, this amendment is not necessitated by a mistake in charging the proper offense, which would have called for the dismissal of
the information under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules on Criminal Procedure. To be sure, the crime is properly
designated as one of theft. 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, and thus guaranteed of his rights under the Constitution.

ACCORDINGLY, the motion for reconsideration is GRANTED. The assailed Decision dated February 27, 2006 is RECONSIDERED
and SET ASIDE. The Decision of the Court of Appeals in CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar of the
Regional Trial Court of Makati City, Branch 150, which denied the Motion to Quash (With Motion to Defer Arraignment) in Criminal Case No. 99-
2425 for theft, is AFFIRMED. 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.

SO ORDERED.
ERNESTO PIDELI, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

REYES, R.T., J.:

ON appeal via petition for review on certiorari under Rule 45 is the Decision[1] of the Court of Appeals (CA), affirming that[2] of the Regional Trial Court (RTC) in
Baguio City, convicting petitioner Ernesto Pideli of theft in the amount of P49,500.00 belonging to his brother’s business partner. The appeal zeroes in on the
questions of ownership, unlawful taking and intent to gain. In short, is it estafa or theft?

The Facts

Sometime in March 1997, Placido Cancio (Placido) and Wilson Pideli (Wilson) entered into a verbal partnership agreement to subcontract a rip-rapping and spillway
project at Tongcalong, Tinongdan Dalupirip Road, Itogon, Benguet. Placido and Wilson agreed to undertake the project in favor of ACL Construction (ACL), the
contractor awarded the development project by the Department of Public Works and Highways.[3]

Petitioner Ernesto Pideli (petitioner), brother to Wilson and neighbor and friend to Placido, offered the duo the use of his credit line with the Mt. Trail Farm Supply and
Hardware (MTFSH) in La Trinidad, Benguet. Petitioner was an employee of the Provincial Planning and Development Office of Benguet, likewise based in La
Trinidad. With the said arrangement, Wilson and Placido, with the assistance of petitioner, were able to secure an assortment of construction materials for the rip-rap
and spillway contract.[4]

On November 17, 1997, after the completion of the project, ACL summoned all its subcontractors to a meeting. Placido, Wilson and petitioner were in attendance. At
the meeting, ACL management informed Placido and Wilson that the final payment for the work that they have done would be withheld. It was learned that they failed
to settle their accountabilities with the MTFSH.[5]

Placido, Wilson and petitioner made representations with the accountable ACL personnel, a certain Boy Candido, to facilitate the release of their payment. They assured
Boy that the matter of the unpaid obligations to MTFSH has been resolved. Boy acceded to the request and proceeded to release the final payment due to Placido and
Wilson, amounting to P222,732.00.[6]

Consequently, Placido, Wilson and petitioner computed their expenses and arrived at a net income of P130,000.00. Placido, as partner, claimed one-half (1/2) or
P65,000.00 of the net amount as his share in the project. Petitioner, however, advised the two to first settle their accountabilities for the construction materials taken
from the hardware store. Placido and Wilson did as told and entrusted the full amount to petitioner, with express instructions to pay MTFSH and deliver the remaining
balance to them.[7]

The following day, or on November 18, 1997, Placido attempted but failed to contact petitioner. He had hoped to obtain his share of the partnership income. Placido got
hold of petitioner the next morning. Unexpectedly, petitioner informed Placido that nothing was left of the proceeds after paying off the supplier.[8] Despite repeated
demands, petitioner refused to give Placido his share in the net income of the contract.[9]

Alarmed over the sudden turn of events, Placido lodged a complaint for theft against petitioner Ernesto Pideli. Eventually, an Information bearing the following
allegations was instituted against petitioner:
The undersigned accuses ERNESTO PIDELE (sic) of the crime of THEFT, committed as follows:

That on or about the 17th day of November, 1977, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with
intent of gain (sic) and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away, cash
money in the amount of P65,000.00, belonging to PLACIDO CANSIO (sic) y TALUKTOK, to the damage and prejudice of the owner thereof in the aforementioned
amount of SIXTY-FIVE THOUSAND PESOS (P65,000.00), Philippine Currency.

CONTRARY TO LAW.[10]
Upon arraignment, petitioner pleaded “not guilty” to the charge. Then, trial on the merits ensued.

The evidence for the People portraying the foregoing facts was supplied by private complainant Placido, the lone prosecution witness.

Petitioner’s defense founded on denial is summarized by the trial court as follows:


Ernesto Pideli, 43 years old, married, government employee and a resident of Km. 4, La Trinidad, Benguet. He is a government employee at the Provincial Planning
and Development Office, Capitol, La Trinidad, Benguet. He was first employed at the Provincial Engineer’s Office on April 11, 1978. Sometime in 1980, he was
appointed as Project Development Officer of the Provincial Planning and Development Office and continuously up to the present.

Wilson Pideli is his brother. In 1997, his brother Wilson had a construction project along Tinongdan, Itogon, Benguet. His brother asked him if he knows of a hardware
which can extend him credit for construction materials. He approached the manager of Mt. Trail Farm Supply and Hardware, Mrs. Editha Paayas, who then said that
they could extend credit to his brother. As of 1997, his brother owed the hardware the amount of P279,000.00 for the construction materials supplied by the hardware,
namely: reinforcement bars, cement, tire wires and other construction materials. This amount was paid to the hardware by installment. The first installment was paid in
June 1997 when the main contractor paid his brother. His brother gave him P179,000.00 at his residence and he was the one who paid the hardware which issued him a
receipt (Exhibit 1-C). After the project was completed, his brother gave him P100,000.00 on November 18, 1997 while he, his brother and Placido Cancio were at the
Rose Bowl Restaurant. He went to the hardware but the manager was not there. 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 P75,000.00 which was covered by a receipt (Exhibit 1-B). Their account was finally computed in December 1997 and so
he paid their balance of P25,000.00. All in all, he paid the hardware the amount of P279,000.00.

When his brother tendered to him the P100,000.00 at the Rose Bowl Restaurant, Placido Cancio was also there discussing the expenses. The money which his brother
got from the main contractor, Boy Cupido, the partner of the late Engineer Lestino, was being held by his brother and not Placido Cancio.

The total cost of the materials taken by his brother from the Mt. Trail Farm Supply is P279,000.00. On June 10, 1997, he paid the initial payment of P179,000.00
covered by Exhibit 1-C issued by the sales boy Cris. The second partial payment was made on November 18, 1997 in the amount of P75,000.00 covered by Exhibit 1-B
issued by Mrs. Editha Paayas. The last time that he paid was on December 18, 1997 in the amount of P25,000.00. This was not yet the full payment because according
to Mrs. Paayas she still has to compute for the interest. (TSN, May 2, 2000, pp. 19-20). Aside from the amount of P279,000.00 representing the materials taken by his
brother, he still has an outstanding account with Mt. Trail Farm Supply charged in his name. This is the reason why in the receipt it was noted as part payment (TSN,
May 2, 2000, p. 21).

On cross-examination, Ernesto Pideli said that he was never a partner of his brother. It was only in 1997 that his brother sought his assistance to look for a hardware
where he can buy construction materials on credit. 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. After the project in Itogon, Wilson stopped his construction project. He denies having taken the P65,000.00. He does not also
know where the amount went (TSN, May 2, 2000, p. 18).

On redirect, he said that when he tendered the first payment of P179,000.00, a statement of account was prepared by the salesboy of Mt. Trail Farm Supply and
Hardware (Exhibit 1-D). He was furnished a copy of the statement of account. After the first and second payment, other materials were obtained by his brother, this is
the reason why they still have a balance of P20,000.00 to be settled within the hardware.[11] (Underscoring supplied)
RTC and CA Dispositions

On March 13, 2001, the RTC handed down a judgment of conviction, disposing in this wise:
WHEREFORE, the guilt of the accused having been proven beyond reasonable doubt, judgment is hereby rendered CONVICTING the accused of the crime of theft and
hereby sentences him after applying the Indeterminate Sentence Law, to suffer imprisonment from 4 years of prision correccional medium as minimum, to 12 years
of prision mayor maximum as maximum (applying Art. 309(1) of the Revised Penal Code) and to reimburse the private complainant the amount of P49,500.00 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.

Costs against the accused.

SO ORDERED.[12]
In convicting petitioner of theft, the trial court ratiocinated:
x x x Upon evaluation of the testimonies of the witnesses, the court finds the lone testimony of the private complainant more credible than the testimony of the defense
witnesses. The testimony of the private complainant is positive and credible, sufficient to sustain a conviction even in the absence of corroboration. The testimony of
defense witness Wilson Pideli was glaringly inconsistent and contradictory on material points. At the initial stages of his (Wilson Pideli) testimony on direct
examination, he categorically stated that it was he and his laborers who implemented the project (rip rap project along Dalupirip Road, Itogon, Benguet) awarded to him
by ACL Construction. The private complainant had no participation in the project (TSN, October 18, 1999, pp. 9-10). Later, in his narration of what actually transpired
between him, his brother Ernesto Pideli and private complainant at the Rose Bowl Restaurant on November 17, 1997, he said that after computing their expenses, he
entrusted to the private complainant the following amounts: 1. P15,000.00 to be given by the private complainant to the laborers who excavated for the project; 2.
P500.00 to be given by the private complainant to Mr. Apse as payment for the cement test; 3. P10,500.00 because he (private complainant) was pestering him (TSN,
October 18, 1999, pp. 14-16). The question is, if the private complainant had no real participation in the project subject of this case, why would Wilson Pideli be
entrusting such amounts to the former. If really private complainant has no involvement whatsoever in the project, why was he present at the: 1. Mido Restaurant where
Josephine Bentres was disbursing final payments to the subcontractors of the project, and 2. 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, Exhibit 2). Later, in his testimony on direct, Wilson Pideli said that when he started
the project, private complainant asked him to join him and he (Wilson Pideli) agreed provided the private complainant share in the expenses. Private complainant did
not, however, share in the expenses nor did he provide any equipment (TSN, October 18, 1999; p. 13) yet he entrusted the aforementioned amounts to Cancio. On cross-
examination, Wilson Pideli admitted that he gave private complainant P10,500.00 despite the fact that he did not share in the expenses for the implementation of the
project (TSN, November 22, 1999, pp. 5-6). Such act is abnormal and contrary to human behavior and experience. The only plausible and logical conclusion is, private
complainant and Wilson Pideli were partners in a joint venture. Just as private complainant did, in fact, stated, he was the one who provided the laborers and some
equipments used in the project. Thus, 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. The reason propounded by Wilson Pideli
to explain his actuations is too flimsy for this court to believe. Furthermore, Wilson Pideli admitted on cross that while the case was filed by private complainant against
his brother Ernesto Pideli, he submitted an affidavit with the Office of the City Prosecutor of Baguio City. In Paragraph 1 of the said affidavit which was read into the
records of the case, he (Wilson Pideli) alleged that “Placido Cancio was his companion in the project at Dalupirip Road, Itogon, Benguet which he subcontracted for
ACL Construction.” When asked by the Public Prosecutor what he meant by his statement, Wilson Pideli categorically admitted that Placido Cancio (the private
complainant) is his partner in the endeavor along Dalupirip Road, Itogon, Benguet (TSN, November 22, 1999, p. 8). The testimony of Wilson Pideli, instead of being
corroborative, in effect, weakened the cause of the defense. The rule is that witnesses are to be weighed, not numbered. It has not been uncommon to reach a conclusion
of guilt on the basis of the testimony of a single witness (People v. Gondora, 265 SCRA 408). Truth is established not by the number of witnesses but by the quality of
their testimonies (People v. Ferrer, 255 SCRA 190).

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. Article 1790 of the Civil Code, however, provides: “Unless there is stipulation to the contrary, the partners shall
contribute equal shares to the capital of the partnership.” Paragraph 1 of Article 1797 of the same code further provides: “The losses and profits shall be
distributed in conformity with the agreement. If only the share of each partner in the profits has been agreed upon, the share of each in the losses shall be in the same
proportion.” Thus, it is safe for the court to conclude that as a partner in the joint venture, Placido Cancio is entitled to 1/2 share in the net proceeds, i.e. P130,000.00
+ 2 = P65,000.00.

The accused insists that private complainant and his brother were not partners in the subcontract project. According to him, he merely acted as guarantor of his brother
so the latter can withdraw construction materials on credit from the Mt. Trail Farm Supply and Hardware. As the guarantor, he was also the one who paid his
brother’s credit when his brother was able to collect payment. Thus, denying the charges filed against him. Denial, if unsubstantiated by clear and convincing
evidence, 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. Paragua, 257 SCRA 118). Affirmative testimony is stronger than a negative one. As between positive and
categorical testimony which has a ring of truth, on one hand, and a bare denial, on the other hand, the former is generally held to prevail (People v. Tuvilla, 259 SCRA).

Finding the testimony of the private complainant to be more credible than that of the accused and his witnesses, 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.

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, if the value of the thing stolen is more than P12,000.00, but does not exceed P22,000.00; but if
the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional
ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, 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, as the case may be.”
xxx
The penalty imposed upon those guilty of theft depends on the amount stolen. Accused carted away P65,000.00 representing private complainant’s share in the next
proceeds of the project. Accused’s brother, Wilson Pideli, however, gave the private complainant and this was admitted by the latter the amount of P10,500.00
when the latter kept on pestering him at the Rose Bowl Restaurant and P5,000.00 at the initial (first) payment. Thus, the amount of P10,500.00 and P5,000.00 should be
deducted from his net share of P65,000.00 leaving a balance of P49,500.00 which is now the basis for the construction of the penalty.[13] (Underscoring supplied)
Petitioner appealed to the CA. In a decision promulgated on April 30, 2003, the CA affirmed[14] the trial court disposition.

Petitioner moved to reconsider the adverse judgment. The motion was, however, denied with finality through a Resolution dated March 9, 2004.[15]
Issues

In this petition, petitioner imputes to the CA triple errors, viz.:


I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THE FINDING THAT THE PROPERTY ALLEGEDLY STOLEN WAS
OWNED BY THE PRIVATE COMPLAINANT;

II.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THAT THERE WAS AN UNLAWFUL TAKING OF PERSONAL
PROPERTY;

III.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THAT THE ALLEGED TAKING BY THE PETITIONER WAS ATTENDED
WITH INTENT TO GAIN.[16] (Underscoring supplied)
Our Ruling

Prefatorily, the thrust of a petition for review on certiorari under Rule 45 is the resolution only of questions of law.[17] Any peripheral factual question addressed to this
Court is beyond the ambit of this mode of review.[18] Indeed, 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.[19]

The petition at bench raises not only questions of law but also of facts. We are asked to recalibrate the evidence adduced by the parties and to reevaluate the credibility
of witnesses. On this ground alone, the petition is dismissible.

We, however, 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.[20]

Article 308 of the Revised Penal Code provides for the concept of the crime of theft,viz.:
ART. 308. 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. x x x
Accordingly, the elements of theft 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.[21]

There is, here, a confluence of the elements of theft. Petitioner received the final payment due the partners Placido and Wilson under the pretext of paying off their
obligation with the MTFSH. Under the terms of their agreement, petitioner was to account for the remaining balance of the said funds and give each of the partners their
respective shares. He, however, failed to give private complainant Placido what was due him under the construction contract.

In an effort to exculpate himself, petitioner posits that he cannot be held liable for theft of the unaccounted funds. The monies subject matter of the complaint pertain to
the partnership. As an agent of partner Wilson, intent to gain cannot be imputed against petitioner.

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
P65,000.00; that it was owned by the partnership and was for payment of materials obtained from the supplier. Complainant’s share in the amount of P65,000.00
manifestly belonged to and was owned by the private complainant.

Appellant’s argument that since the money belonged to the partnership, hence, cannot be the object of the crime of theft as between the partners, and that appellant
as their agent acted in good faith and without intent to gain, holds no water. Parenthetically, this argument is inconsistent with the assertion of the defense witnesses that
complainant had no participation at all in the project, and, hence, had no right to a share in its payment. In any case, appellant was not complainant’s partner but his
brother. As for his alleged acting in good faith and without intent of gain, it is jurisprudentially settled that intent is a mental state, the existence of which is made
manifest by overt acts of the person. The intent to gain is presumed from the taking of property appertaining to another.

Appellant presented a receipt dated November 18, 1997 allegedly evidencing his payment of P75,000.000 to Mt. Trail Farm Supply and Hardware store.
Granting arguendo that appellant paid P75,000.00 to the Mt. Trail Farm Supply and Hardware (which the trial court did not grant credence), the same still does not
exculpate him from liability. The net income earned and disbursed to the partnership of private complainant and Wilson Pideli was P130,000.00 and a balance of
P55,000.00 still remained despite the alleged payment, which should be divided into two (2) or P27,000.00 for each of them. However, not a single centavo of this
amount was received by private complainant.

When appellant received the disbursement, he had only physical custody of private complainant’s money, which was supposed to be applied to a particular purpose,
i.e. settle the account with the supplier. Appellant’s failure to do so or to return the money to the private complainant renders him guilty of the crime of theft. This is
in line with the rulings of the Supreme Court in the case of United States vs. De Vera, 43 Phil. 1000 (1929) that the delivery of money to another for a particular
purpose is a parting with its physical custody only, 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. Tan, 323 SCRA 30, an Anti-Carnapping case,
where the High Court ruled that the unlawful taking or deprivation may occur after the transfer of physical possession and, in such a case, “the article (is considered
as being) taken away, not received, although at the beginning the article was, in fact, given and received.” 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.[22] (Underscoring supplied)
Although there is misappropriation of funds here, petitioner was correctly found guilty of theft. As early as U.S. v. De Vera,[23] the Court has consistently ruled that not
all misappropriation is estafa. Chief Justice Ramon C. Aquino, in his commentary on the Revised Penal Code, 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. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de
facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes
embezzlement or estafa.[24]
In De Vera, the accused, Nieves de Vera, received from Pepe, an Igorot, a bar of gold weighing 559.7 grams for the purpose of having a silversmith examine the same,
and bank notes amounting to P200.00 to have them exchanged for silver coins. Accused appropriated the bar of gold and bank notes. 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, thus such possession
remained in the owner; and the act of disposal with gainful intent and lack of owner’s consent constituted the crime of theft.

In People v. Trinidad,[25] defendant received a finger ring from the offended party for the purpose of pledging it as security for a loan of P5.00 for the benefit of said
offended party. Instead of pledging the ring, the defendant immediately carried it to one of her neighbors to whom she sold it for P30.00 and appropriated the money to
her own use. The Court, citing De Vera, similarly convicted defendant of theft.

In People v. Locson,[26] this Court considered deposits received by a teller in behalf of a bank as being only in the material possession of the teller. 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. Such is only material
possession. Juridical possession remains with the bank. In line with the reasoning of the Court in the above-cited cases, beginning with People v. De Vera, if the teller
appropriates the money for personal gain then the felony committed is theft and notestafa. Further, since the teller occupies a position of confidence, and the bank
places money in the teller’s possession due to the confidence reposed on the teller, the felony of qualified theft would be committed.

In People v. Isaac,[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, although physically held by the driver. 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. The contract with the accused being under the “boundary system,” legally, the accused was not
a lessee but only an employee of the owner. Thus, the accused’s possession of the vehicle was only an extension of the owner’s.

The doctrine was reiterated in the recent case of Roque v. People.[28]

Now, on the penalty. Article 309 of the Revised Penal Code penalizes theft in the following tenor:
Art. 309. Penalties. – Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if
the value of the thing stolen exceed the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional
tenthousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years.[29] (Underscoring supplied)
The record bears out that private complainant originally claimed P65,000.00 as his share in the partnership. However, he admitted receiving the total amount of
P15,500.00, on two separate occasions, from Wilson Pideli. Verily, only P49,500.00 is due private complainant.

Hence, the imposable penalty is the maximum period of prision mayor minimum and medium prescribed in the abovequoted first paragraph of Article 309. That period
ranges from six (6) years and one (1) day to ten (10) years, plus one (1) year for every additional ten thousand pesos in excess of P22,000.00, which in this case is two
(2) years for the excess amount of P27,500.00.

Applying the Indeterminate Sentence Law, 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, 4 months and 1 day to 6 years), to be imposed in any of its periods.

Both the trial court and the CA sentenced petitioner to an indeterminate penalty of four (4) years of prision correccional medium, as minimum term, to twelve (12)
years of prision mayor maximum, as maximum term. We sustain it. Petitioner’s civil liability is likewise maintained.

WHEREFORE, the appealed Decision is AFFIRMED in full.

SO ORDERED.

Ynares-Santiago, (Chairperson), Austria-Martinez, Chico-Nazario, and Nachura, JJ., concur.


Valenzuela v. People

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-known decisions [1] rendered
decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.[3] A more cursory treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and
in 1984, in Empelis v. IAC.[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.
I.

The basic facts are no longer disputed before us. The case stems from an Information [6] charging petitioner Aristotel Valenzuela (petitioner)
and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super
Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning
his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark “Receiving
Dispatching Unit (RDU),” hauling a push cart with cases of detergent of the well-known “Tide” brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons
ofTide Ultramatic and again unloaded these boxes to the same area in the open parking space.[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon
was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. [8] The filched items seized from the duo were four (4) cases of Tide Ultramatic, one
(1) case of Ultra25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.[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, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon,
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. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged
with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, 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. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account,
accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the
supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check
what was transpiring. As they were outside, they were suddenly “grabbed” by a security guard, thus commencing their detention.[12] Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, [13] had been at the parking lot, walking beside the nearby BLISS
complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other
people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was
detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station,
petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutor’s office where he
was charged with theft.[14]During petitioner’s cross-examination, he admitted that he had been employed as a “bundler” of GMS Marketing, “assigned
at the supermarket” though not at SM.[15]
In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft. 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.[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.

Both accused filed their respective Notices of Appeal, [18] but only petitioner filed a brief[19] with the Court of Appeals, causing the appellate
court to deem Calderon’s appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.
[20]
However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioner’s conviction. [22] Hence the
present Petition for Review,[23] which expressly seeks that petitioner’s conviction “be modified to only of Frustrated Theft.”[24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft
of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is
whether under the given facts, the theft should be deemed as consummated or merely frustrated.
II.

In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years ago by the Court of
Appeals: People v. Diño[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court convictions from
consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal
to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction.

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. For whatever reasons, the occasion to define or debunk the crime of frustrated theft has not come to
pass before us. Yet despite the silence on our part, Diño and Floreshave attained a level of renown reached by very few other appellate court rulings.
They are comprehensively discussed in the most popular of our criminal law annotations, [29] and studied in criminal law classes as textbook examples
of frustrated crimes or even as definitive of frustrated theft.

More critically, 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. Indeed, if we finally say that Diño and Flores are doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a
supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Diño and Flores. 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. 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.
III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to “frustrated theft,” it is necessary to first
refer to the basic rules on the three stages of crimes under our Revised Penal Code.[30]

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated “when all the
elements necessary for its execution and accomplishment are present.” It is frustrated “when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.”
Finally, it is attempted “when the offender commences the commission of a felony directly by overt acts, 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.”

Each felony under the Revised Penal Code has a “subjective phase,” 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, with prior acts, should result in the consummated crime.
[31]
After that point has been breached, the subjective phase ends and the objective phase begins. [32] It has been held that if the offender never passes
the subjective phase of the offense, the crime is merely attempted. [33] On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, “[s]ubjectively the crime is complete.”[34]
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as
the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted
stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, 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.

In contrast, 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. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. 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. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn
unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim “actus non facit reum, nisi mens sit rea” supplies an important characteristic of a crime, that “ordinarily, evil
intent must unite with an unlawful act for there to be a crime,” and accordingly, there can be no crime when the criminal mind is wanting.
[35]
Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as “a guilty mind, a guilty or wrongful purpose
or criminal intent,”[37] and “essential for criminal liability.”[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 indeed the U.S. Supreme Court has comfortably held that “a criminal law that contains no mens
rea requirement infringes on constitutionally protected rights.”[39] The criminal statute must also provide for the overt acts that constitute the crime.
For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the
undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal
Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the
felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase “shall kill
another,” thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows:

Art. 308. 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.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object
of the damage caused by him; and
3. 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, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.
[41]
In the present discussion, 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. On the face of the definition, there is only one operative act of execution by the actor involved in theft ─ the taking of
personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present
the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it
was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (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.[42]
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so
broad enough as to encompass “any kind of physical handling of property belonging to another against the will of the owner,” [43] a definition similar
to that by Paulus that a thief “handles (touches, moves) the property of another.” [44] However, with the Institutes of Justinian, the idea had taken hold
that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus: “[ f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.”[45] This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or “unlawful taking,” to characterize theft. Justice Regalado notes
that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with “the intent to appropriate the object in order to
constituteapoderamiento; and to appropriate means to deprive the lawful owner of the thing.”[47] However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the stolen
property;[49]or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of
the proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, 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.[51]

So long as the “descriptive” circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of
the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such
seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft
would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily
sufficient to produce theft as a consequence, “do not produce [such theft] by reason of causes independent of the will of the perpetrator.” There are
clearly two determinative factors to consider: that the felony is not “produced,” and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, 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,” despite the commission
of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft
“produced.” Parsing through the statutory definition of theft under Article 308, 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.”

U.S. v. Adiao[53] apparently supports that notion. Therein, 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. At no time was the accused able to “get the merchandise out of
the Custom House,” and it appears that he “was under observation during the entire transaction.” [54] Based apparently on those two circumstances, the
trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead
that the accused was guilty of consummated theft, finding that “all the elements of the completed crime of theft are present.” [55] In support of its
conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate
below:

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: "[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." (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 he 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: "[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, 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.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been
able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from “sometime later” in the 1898 decision; 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; and before the thief had been able to spirit the item stolen from the building where the
theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that
the thefts in each of those cases was consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case
isPeople v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, “caught hold of the [accused]’s shirt-front, at the same time shouting for a policeman; after
a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman.” [58] In rejecting the contention that
only frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft.
If the pocket-book was afterwards recovered, such recovery does not affect the [accused’s] criminal liability, which arose from the
[accused] having succeeded in taking the pocket-book.[59]

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was
able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply
affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in
the Diño andFlores decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver
employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S.
Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the
Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. 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. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only
frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles “pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking.”[60] This point was deemed material and indicative that the theft had not been fully produced, 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, even if it were
more or less momentary.”[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888
decision), 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, siquiera sea mas o menos momentaneamente, pues de otra
suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el
acto de tomar la cosa ajena.[62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the
articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all
the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said
to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of
frustrated theft.[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. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case
which according to the division of the court that decided it, bore “no substantial variance between the circumstances [herein] and in [Diño].”[64] Such
conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, 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.
The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the “empty” sea van had actually contained other merchandise as well.[65] The accused was prosecuted for theft qualified
by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that
he was guilty only of attempted theft, 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.” However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty only of
frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found “no substantial variance” between Diño and Flores then before it. The prosecution
inFlores had sought to distinguish that case from Diño, citing a “traditional ruling” which unfortunately was not identified in the decision itself.
However, 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.”[66] Pouncing on this qualification, the appellate court noted that “[o]bviously, while the truck and the van were
still within the compound, the petitioner could not have disposed of the goods ‘at once’.” At the same time, 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, 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.

Synthesis of the Diño and Flores rulings is in order. 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, even if it were only momentary.” 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, “es preciso que so haga en circunstancias
tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente.” The qualifier “siquiera sea mas o menos
momentaneamente” proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Diño or Flores, 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.
However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been “free
disposition,” 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.”[68]

In his commentaries, 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. Or as stated in another case[ [69]], 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. This ruling seems to have been based on Viada’s opinion that in order the theft may be consummated, “es
preciso que se haga en circumstancias x x x [[70]]”[71]

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, 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, although his act of making use of the thing
was frustrated.”[72]

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and Flores rulings. People v.
[73]
Batoon involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused
onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals
held that the accused was guilty of consummated qualified theft, finding that “[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x
x x indicate that actual taking with intent to gain is enough to consummate the crime of theft.”[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However,
as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts
clearly admit to similarity with those in Diño, the Court of Appeals held that the accused were guilty of consummated theft, as the accused “were able
to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense.”[76]

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that “[w]hen the meaning of an element of a felony is
controversial, there is bound to arise different rulings as to the stage of execution of that felony.” [77] Indeed, we can discern from this survey of
jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept
of frustrated theft itself, the question can even be asked whether there is really such a crime in the first place.
IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this
inquiry, we have to reckon with the import of this Court’s 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of
gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they
had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident
to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple
theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the accused were
guilty only of frustrated qualified theft.
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. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:

However, 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. They were not able to carry the coconuts away from the plantation due to the timely
arrival of the owner.[80]

No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish authorities who may have bolstered the
conclusion. 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.”[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated “when the offender performs all
the acts of execution,” though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is
attempted, provided that the non-performance was by reason of some cause or accident other than spontaneous
desistance. 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. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially
given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually
aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so
settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can
contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft.
Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that
inform it, and also by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.
V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was then in place. The definition of the crime of
theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos previstos en los artίculos 606, núm. 1.0; 607,
núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the
said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now
simply defined as “[e]l que, con ánimo de lucro, 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, “la libre disposicion” of the property is not an element or a
statutory characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de España. Therein, he
raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. 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, viéndose sorprendido, la arroja al suelo.”[83] Even as the answer was as stated in Diño, and was indeed derived from the
1888 decision of the Supreme Court of Spain, that decision’s factual predicate occasioning the statement was apparently very different from Diño, 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.[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have
held to that effect.[85] A few decades later, the esteemed Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court
with respect to frustrated theft.

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, 22 febrero 1913; 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, 30 de octubre 1950. Hay "por lo menos" frustración, si
existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable es
detenido por el perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11
marzo 1921; esta doctrina no es admissible, éstos, conforme a lo antes expuesto, son hurtos consumados.[86]

Ultimately, 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. 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. El hecho de que
éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta
por el culpable o fuere recuperada. No se concibe la frustración, pues es muy dificil que el que hace cuanto es necesario para la
consumación del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados
son verdaderos delitos consumados.[87] (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court
decisions on the matter, Cuello Calón actually set forth his own thought that questioned whether theft could truly be frustrated, since “pues es muy
dificil que el que hace cuanto es necesario para la consumación del hurto no lo consume efectivamente.” Otherwise put, 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.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated
theft, as proposed in Diño and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to
scholastic pariah, for such a submission is hardly heretical in light of Cuello Calón’s position.
Accordingly, 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, conflicting as they are, to accept that theft is capable of commission in its frustrated stage.
Further, 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, the
answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define
what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. 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 Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.”[89]

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender to freely dispose of the property
stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element
of theft or as the mens rea or actus reus of the felony. 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; (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.[90]

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another
without the latter’s consent. While the Diño/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers
only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, 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. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, 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. This conclusion is reflected in Chief Justice Aquino’s commentaries, as earlier cited, 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, although his act of
making use of the thing was frustrated.”[91]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of “taking” itself, in that
there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the
“taking not having been accomplished.” Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is
indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the
facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain,
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, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession
of the thing, even if he has no opportunity to dispose of the same.[92] And long ago, we asserted in People v. 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, such as that the taking must be effected animo lucrandi and without the consent of the owner; 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, a distinction of no slight importance.[94]
Insofar as we consider the present question, “unlawful taking” is most material in this respect. Unlawful taking, which is the deprivation of
one’s personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage.
Theft can only be attempted or consummated.

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen
items, the effect of the felony has been produced as there has been deprivation of property. 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.

Moreover, as is evident in this case, 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, [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. It is
difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological
belief of the offender at the time of the commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the
property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to
encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more.
Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free
disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by
one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these
peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed.
But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the
crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, 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. Diño itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has
not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his
appeal on our acceptance of the Diño and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. 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. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to
Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

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