8/26/2019 G.R. No. 160188 | Valenzuela y Natividad v.

People

EN BANC

[G.R. No. 160188. June 21, 2007.]

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner, vs.

PEOPLE OF THE PHILIPPINES and HON. COURT OF
APPEALS, respondents.

DECISION

TINGA, J : p

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.
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Petitioner then returned inside the supermarket, and after five (5)
minutes, emerged with more cartons of Tide 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 Ultra 25 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 CaAcSE

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
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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,

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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
Flores have 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. aECTcA

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

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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 the mens 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
TEcADS

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
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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

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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 constitute apoderamiento; 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 DHTECc

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
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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: "[. . .] The trial court did not err [. . .] in considering the
crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the
policemen who saw the accused take the fruit from the adjoining
land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him
for an interval of time." (Decision of the Supreme Court of Spain,
October 14, 1898.)
Defendant picked the pocket of the offended party while
the latter was hearing mass in a church. The latter on account of
the solemnity of the act, although noticing the theft, did not do
anything to prevent it. Subsequently, however, while the
defendant was still inside the church, the offended party got back
the money from the defendant. The court said that the defendant
had performed all the acts of execution and considered the theft
as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)

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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: "[. . .] The accused [. . .] having materially taken
possession of the money from the moment he took it from the
place where it had been, and having taken it with his hands with
intent to appropriate the same, he executed all the acts necessary
to constitute the crime which was thereby produced; only the act
of making use of the thing having been frustrated, which,
however, does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13, 1882.)
56 CTAIHc

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 is People 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

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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 and Floresdecisions.
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:

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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 CHDaAE

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 in Flores 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

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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 . . ., [such] as money . . . ." 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 . . . [ 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. Batoon 73
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

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"[t]he facts of the cases of U.S. [v.] Adiao . . . and U.S. v. Sobrevilla . . .
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. ITSacC

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

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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:

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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
articulos 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. EHSIcT

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
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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. SCADIT

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
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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
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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. aDCIHE

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
. . . [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.

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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
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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. cIHSTC

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, Chico-Nazario,
Garcia, Velasco, Jr. and Nachura, JJ., concur.
Quisumbing, J., is on official leave.

Footnotes
1. See infra, People v. Diño and People v. Flores.
2. Not accounting for those unpublished or unreported decisions, in the
one hundred year history of this Court, which could no longer be
retrieved from the Philippine Reports or other secondary sources, due to
their wholesale destruction during the Second World War or for other
reasons.
3. See People v. Adiao, infra. There have been a few cases wherein the
Court let stand a conviction for frustrated theft, yet in none of those
cases was the issue squarely presented that theft could be committed at
its frustrated stage. See People v. Abuyen, 52 Phil. 722 (1929); People v.
Flores, 63 Phil. 443 (1936); and People v. Tapang, 88 Phil. 721 (1951).
In People v. Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the
Court did tacitly accept the viability of a conviction for frustrated theft,
though the issue expounded on by the Court pertained to the proper
appellate jurisdiction over such conviction.
It would indeed be error to perceive that convictions for frustrated theft
are traditionally unconventional in this jurisdiction, as such have routinely
been handed down by lower courts, as a survey of jurisprudence would
reveal. Still, the plain fact remains that this Court , since Adiao in 1918,
has yet to directly rule on the legal foundation of frustrated theft, or even
discuss such scenario by way of dicta.
In passing, we take note of a recent decision of the Court of Appeals in
People v. Concepcion, C.A. G.R. CR No. 28280, 11 July 2005 (See at
http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate

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court affirmed a conviction for frustrated theft, the accused therein

having been caught inside Meralco property before he could flee with
some copper electrical wire. However, in the said decision, the accused
was charged at the onset with frustrated theft, and the Court of Appeals
did not inquire why the crime committed was only frustrated theft.
Moreover, the charge for theft was not under the Revised Penal Code,
but under Rep. Act No. 7832, a special law.
4. 53 Phil. 226 (1929).
5. 217 Phil. 377 (1984).
6. Records, pp. 1-2.
7. Rollo, pp. 21-22.
8. Id. at 22.
9. See id. at 472.
10. See Records, pp. 7-14. A brief comment is warranted regarding
these four (4) other apparent suspects. The affidavits and sworn
statements that were executed during the police investigation by security
guards Lago and Vivencio Yanson, by SM employee Adelio Nakar, and
by the taxi driver whose cab had been hailed to transport the accused,
commonly point to all six as co-participants in the theft of the detergents.
It is not explained in the record why no charges were brought against the
four (4) other suspects, and the prosecution's case before the trial court
did not attempt to draw in any other suspects other than petitioner and
Calderon. On the other hand, both petitioner and Calderon claimed
during trial that they were innocent bystanders who happened to be in
the vicinity of the Super Sale Club at the time of the incident when they
were haled in, along with the four (4) other suspects by the security
guards in the resulting confusion. See infra. However, both petitioner and
Calderon made no move to demonstrate that the non-filing of the
charges against the four (4) other suspects somehow bolstered their
plea of innocence.
In any event, from the time this case had been elevated on appeal to the
Court of Appeals, no question was anymore raised on the version of
facts presented by the prosecution. Thus, any issue relative to these four
(4) other suspects should bear no effect in the present consideration of
the case.
11. Also identified in the case record as "Rosalada" or "Rosullado." He
happened to be among the four (4) other suspects also apprehended at
the scene and brought for investigation to the Baler PNP Station. See id.
Rosulada also testified in court in behalf of Calderon. See Records, pp.
357-390.
12. Records, pp. 330-337.
13. A person who was neither among the four (4) other suspects (see
note 6) nor a witness for the defense.
14. Rollo, p. 25.
15. Records, pp. 424-425.

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16. Id. at 472-474; Penned by Judge Reynaldo B. Daway.

17. Id. at 474.
18. Id. at 484.
19. CA rollo, pp. 54-62.
20. Rollo, p. 25.
21. Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the
Court of Appeals Third Division, concurred in by Associate Justices
Martin S. Villarama, Jr. and Mario L. Guariña. DcHSEa

22. A motion for reconsideration filed by petitioner was denied by the

Court of Appeals in a Resolution dated 1 October 2003.
23. Rollo, pp. 8-15.
24. Id. at 12.
25. Id. at 9.
26. Id. at 13-14.
27. No. 924-R, 18 February 1948, 45 O.G. 3446.
28. 6 C.A. Rep. 2d 835 (1964).
29. See e.g., L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL
LAW (13th ed., 2001), at 112-113 and R. AQUINO, I THE REVISED
PENAL CODE (1997 ed.), at 122.

30. Act No. 3815, n as amended.

31. See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines
the final point of the subjective phase as "that point where [the offender]
still has control over his acts, including their (acts') natural course." See
L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th Ed.,
2001), at 101.
32. People v. Caballero, 448 Phil. 514, 534 (2003).
33. See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v.
Caballero, id.
34. U.S. v. Eduave, 36 Phil. 209, 212 (1917).
35. People v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note
29, at 39. See also Lecaroz v. Sandiganbayan, 364 Phil. 890, 905
(1999).
36. See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA
127, 135.
37. People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW
DICTIONARY, 5th ed., p. 889.
38. Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990,
188 SCRA 475, 490.

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39. City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate

Opinion, J. Tinga, Romualdez v. Sandiganbayan, G.R. No. 152259, 29
July 2004, 435 SCRA 371, 400.
40. J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No.
81567, 3 October 1991, 202 SCRA 251, 288.
41. See also REVISED PENAL CODE, Art. 310, which qualifies theft
with a penalty two degrees higher "if committed by a domestic servant,
or with grave abuse of confidence, or if the property stolen is motor
vehicle, mail matter or large cattle or consists of coconuts taken from the
premises of the plantation or fish taken from a fishpond or fishery, or if
property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance."
42. See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA
284, 291, citing People v. Sison, 322 SCRA 345, 363-364 (2000).
43. S. GUEVARRA, COMMENTARIES ON THE REVISED PENAL
CODE (4th ed., 1946), at 614.
44. Id. at 615.
45. Id. citing Inst. 4, 1, 1.
46. Section 1(2) of the Theft Act of 1968 states: "It is immaterial
whether the appropriation is made with a view to gain, or is made for the
thief's own benefit." Sir John Smith provides a sensible rationalization for
this doctrine: "Thus, to take examples from the old law, if D takes P's
letters and puts them down on a lavatory or backs P's horse down a
mine shaft, he is guilty of theft notwithstanding the fact that he intends
only loss to P and no gain to himself or anyone else. It might be thought
that these instances could safely and more appropriately have been left
to other branches of the criminal law — that of criminal damage to
property for instance. But there are cases where there is no such
damage or destruction of the thing as would found a charge under
another Act. For example, D takes P's diamond and flings it into a deep
pond. The diamond lies unharmed in the pond and a prosecution for
criminal damage would fail. It seems clearly right that D should be guilty
of theft." J. SMITH, SMITH & HOGAN CRIMINAL LAW (9th ed., 1999),
at 534.
47. F. REGALADO, CRIMINAL LAW CONSPECTUS (1st ed., 2000), at
520.
48. People v. Kho Choc, 50 O.G. 1667, cited in REGALADO, id. at 521.
49. People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G.
3103; cf. People v. Roxas, CA-G.R. No. 14953, 31 October 1956, all
cited in REGALADO, supra note 47 at 521.
50. People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48
O.G. 4417, cited in REGALADO, supra note 47 at 521.
51. REGALADO, supra note 47 at 521 citing Villacorta v. Insurance
Commission, G.R. No. 54171, 28 October 1980, 100 SCRA 467;
Association of Baptists for World Evangelism v. Fieldmen's Ins. Co., No.

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L-28772, 21 September 1983, 209 Phil. 505 (1983). See also People v.
Bustinera, supra note 42.
52. The distinction being "inconsequential" if the criminal charge is
based on a special law such as the Dangerous Drugs Law. See e.g.,
People v. Enriquez, G.R. No. 99838, October 23, 1997, 281 SCRA 103,
120.
53. 38 Phil. 754 (1918).
54. Id. at 755.
55. Id.
56. Id. at 755-756.
57. Supra note 4.
58. Supra note 4 at 227.
59. Id. SacTAC

60. People v. Diño, supra note 27 at 3450.

61. Id.
62. Id.
63. Id. at 3451.
64. People v. Flores, supra note 28 at 840.
65. Id. at 836. The Court of Appeals in Flores did not identify the
character of these stolen merchandise.
66. Id. at 841.
67. Id.
68. People v. Diño, supra note 27 at 841.
69. People v. Naval and Beltran, CA 46 O.G. 2641.
70. See note 62.
71. AQUINO, supra note 29 at 122.
72. Id. at 110.
73. C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.
74. Id. at 1391. Citations omitted.
75. CA G.R. No. 2107-R, 31 May 1949.
76. Note the similarity between this holding and the observations of
Chief Justice Aquino in note 72.
77. REYES, supra note 29 at 113.
78. Supra note 5.
79. "REVISED PENAL CODE, Art. 310 states that the crime of theft
shall "be punished by the penalties next higher by two degrees than
those respectively expressed in the next preceding article . . . if the
property stolen . . . consists of coconuts taken from the premises of a
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plantation, . . . ." Thus, the stealing of coconuts when they are still in the
tree or deposited on the ground within the premises is qualified theft.
When the coconuts are stolen in any other place, it is simple theft. Stated
differently, if the coconuts were taken in front of a house along the
highway outside the coconut plantation, it would be simple theft only.
[In the case at bar, petitioners were seen carrying away fifty coconuts
while they were still in the premises of the plantation. They would
therefore come within the definition of qualified theft because the
property stolen consists of coconuts "taken from the premises of a
plantation."] Empelis v. IAC, supra note 5, at 379, 380.
80. Empelis v. IAC, supra note 5, at 380.
81. Id.
82. Art. 234, Código Penal Español de 1995. See Ley Orgánica
10/1995, de 23 de noviembre, del Código Penal,
http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html (Last
visited, 15 April 2007). The traditional qualifier "but without violence
against or intimidation of persons nor force upon things," is instead
incorporated in the definition of robbery ("robos") under Articulo 237 of
the same Code ("Son reos del delito de robo los que, con ánimo de
lucro, se apoderaren de las cosas muebles ajenas empleando fuerza en
las cosas para acceder al lugar donde éstas se encuentran o violencia o
intimidación en las personas.")
By way of contrast, the Theft Act 1968 of Great Britain defines theft in
the following manner: "A person is guilty of theft if he dishonestly
appropriates property belonging to another with the intention of
permanently depriving the other of it; and 'thief' and 'steal' shall be
construed accordingly." See Section 1(1), Theft Act 1968 (Great Britain).
The most notable difference between the modern British and Spanish
laws on theft is the absence in the former of the element of animo
lucrandi. See note 42.
83. 1 S. VIADA, CODIGO PENAL REFORMADO DE 1870 (1926 ed) at
103.
84. "Considerando que según se desprende de la sentencia recurrida,
los dependientes de la sastrería de D. Joaquin Gabino sorprendieron al
penado Juan Gomez Lopez al tomar una capa que había en un maniquí,
por lo que hubo de arrojarla al suelo, siendo detenido despues por
agentes de la Autoridad yque esto supuesto es evidente que el delito no
aparece realizado en toda la extensión precisa para poderlo calificar
como consumado, etc." Id. at 103-104.
85. The other examples cited by Viada of frustrated theft are in the case
where the offender was caught stealing potatoes off a field by storing
them in his coat, before he could leave the field where the potatoes were
taken, see Viada (supra note 83, at 103), where the offender was
surprised at the meadow from where he was stealing firewood, id.
86. E. CUELLO CALON, II DERECHO PENAL (1955 ed.), at 799
(Footnote 1).
87. Id. at 798-799.
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88. Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA
243, 266, citing United States v. Wiltberger, 18 U.S. 76 (1820).
89. Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA
243. See also Dowling v. United States, 473 U.S. 207 (1985).
90. See e.g., People v. Bustinera, supra note 42.
91. AQUINO, supra note 29, at 110.
92. People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448
Phil. 269, 280 (2003); People v. Bustinera, supra note 42 at 295.
93. 44 Phil. 720 (1923).
94. Id. at 726.
95. Justice Regalado cautions against "putting a premium upon the
pretensions of an accused geared towards obtention of a reduced
penalty." REGALADO, supra note 47, at 27. IScaAE

n Note from the Publisher: Written as "Act No. 3185" in the original
document.

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