cases for theft

8/18/2019 Cases for Theft

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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 82264-66 December 4, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ISAGANI GULINAO Y ALZONA, accused-appellant.

Citizens Legal Assistance Office for accused-appellant.

PARAS, J .:

In three (3) separate Informations filed before the Regional Trial Court of Valenzuela, Metro Manila,Isagani Gulinao was charged with —

1. Illegal Possession of Firearm with Murder (Proper designation of the offense onthe basis of the allegations in the Information should be Murder committed with theuse of an unlicensed firearm) — Crim Case No. 8016-V-87;

2. Robbery — Crim. Case No. 8017-V-87; and

3. Carnapping — Crim. Case No. 8048-V-87

allegedly committed as follows:

1. Criminal Case No. 8016-V-87, For Violation of PD 1866 (Illegal Possession of Firearm withMurder)

That on or about the 4th day of March, 1987, in the municipality of Valenzuela, MetroManila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in hispossession and control one (1) Colt Caliber .45 pistol with SN C-1039161, withoutauthority and/or permit to do and with evident premeditation, treachery and intent tokill Samson Chua, use said firearm to attack, assault and shoot said Samson Chua,hitting the latter on his body, thereby causing his instantaneous death.

2. Criminal Case No. 8017-V-87, For Robbery

That on or about the 4th day of March, 1987, in the municipality of Valenzuela, MetroManila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously, and withviolence upon the person of Samson Chua, with intent to gain take rob and carryaway with him one (1) gold men's ring with twelve (12) diamond stones worthP85,000.00 belonging to said Samson Chua, to the damage and prejudice of thelatter in the sum of P85,000.00.


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3. Criminal Case No. 8048-V-87, For Carnapping

That on or about March 4,1987, in the municipality of Valenzuela, Metro Manila,Philippines, and within the jurisdiction of this Honorable Court, the above-namedaccused, did then and there willfully, unlawfully and feloniously, with intent to gainand by means of force, violence and intimidation, to wit: by then and there shooting

to death Samson Chua y Domingo, the person to whom the owner entrusted theaforementioned motor vehicle, and intimidating with gunshots Virgilio Caguioa yDionisio, the driver/occupant of said motor vehicle, and then did take, steal and carryaway, without the owner's consent, a Toyota Corona Silver Edition, Colored Blue,bearing plate No. PNB '870 and valued at P250,000.00 to the damage and prejudiceof the owner, Chua Ang Sing , in the aforesaid sum of P250,000.00 PhilippineCurrency. (pp. 1-3, Brief for the Appellee; p. 106, Rollo)

Gulinao pleaded "not guilty" to the "Robbery" and "Carnapping" charges. But, he refused to enterany plea to the charge of "Illegal Possession of Firearm with Murder", hence, the trial court enteredfor him a plea of "not guilty" pursuant to Sec. 1 (c), Rule 116, 1985 Rules of Court on CriminalProcedure. However, Gulinao moved to quash the Information charging him with "Illegal Possessionof Firearm" on the ground that there was another Criminal Case No. 87-52928 for "Illegal Possessionof Firearm" pending before the Regional Trial Court of Manila. In an Order dated April 24, 1987, thetrial court denied Gulinao's motion to quash. Whereupon, Gulinao assailed the Order in a petition forcertiorari (CA-G.R. SP No. 12412) before the Court of Appeals. In a Decision dated September 22,1987, the Court of Appeals dismissed the petition for lack of merit.

The aforesaid three (3) criminal cases were jointly tried. After the prosecution had completed thepresentation of its evidence, the case was set on October 28, 1987 for the reception of evidence forthe defense. On the said date Gulinao refused to take the witness stand. Atty. Ricardo Perez, hiscounsel de oficio who was representing him in the case for "Illegal Possession of Firearm withMurder", manifested in open court that Gulinao even refused to be interviewed. On motion of Atty.Perez to give him more time to talk to Gulinao or to withdraw from the case, the hearing was re-setto Nov. 6, Nov. 16, Nov. 25 and Dec. 2, 1987, with warning that Gulinao's failure to present evidence

in the next hearing without valid grounds would be deemed a waiver of presentation of evidence forhis defense.

Meanwhile, on Nov. 4, 1987, Atty. Reynaldo Garcia, Gulinao's counsel de parte in the cases for"Robbery" and "Carnapping" withdrew his appearance with the conformity of Gulinao.

In the scheduled hearing on Nov. 6, 1987, Gulinao did not present evidence. In the next hearing onNov. 16, 1987, two (2) young men tried to move for postponement, but they were found by the trialcourt as not full-pledged lawyers. Gulinao refused to present evidence despite the willingness of

Atty. Perez to assist him. Atty. Perez later filed a motion to withdraw appearance due to theuncooperativeness of Gulinao.

In view of the previous warning given by the trial court, Gulinao's failure to present evidence withoutvalid ground was considered as waiver of his right to present evidence. In the Order dated Nov. 16,1987, the trial court noted:

Today when these cases were called for hearing the Court's appointed counsel deoficio, manifested that the accused again did not want to cooperate and manifestedthat in fairness to himself as lawyer and in fairness to the accused he is withdrawinghis appearance. The Court commiserates with the predicament of defense counselwho was much interested to help the accused and the Court to give due process and


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to expedite the hearing but the Court noted that it is the accused who has stubbornlyrefused to present his defense evidence. Prior to his having been accused he was afull-pledged police officer and he used to investigate cases for less than 3 years. (p.6, Brief for the Appellee; p. 106, Rollo)

On Nov. 23, 1987, the trial court rendered a Decision, the dispositive portion of which reads-

WHEREFORE, in view of the foregoing the Court finds the accused Isagani Gulinaoguilty beyond reasonable doubt of the following crimes:

1. Illegal Possession of Firearm with Murder and hereby sentences him to suffer lifeimprisonment which is one degree lower than the death penalty considering that theCourt can no longer impose the penalty of death as mandated by the NewConstitution.

2. Robbery under Art. 294 par. 5 and hereby sentences him to suffer the penaltyof prision correccional in its maximum period to prision mayor in its medium period orfour (4) years, two (2) months and one (1) day to six (6) years one (1) month and ten

(10) days.

3. Carnapping and hereby sentences him to suffer imprisonment of fourteen (14)years and eight (8) months as minimum to seventeen (17) years and four (4) monthsas maximum.

4. To indemnify the heirs of the victim Dr. Samson Chua in the sum of P500,000.00,and to pay the costs. The entire period of the previous imprisonment of accused shallbe credited in his favor. (p. 7, Brief for the Appellee; p. 106, Rollo)

From the aforesaid decision, Gulinao interposed this appeal to this Court on the followingassignment of errors:

I

THE TRIAL COURT GRAVELY ERRED IN NOT ALLOWING THE ACCUSED- APPELLANT TO PRESENT HIS EVIDENCE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED- APPELLANT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARM WITHMURDER.

III

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTGUILTY OF ROBBERY UNDER ARTICLE 294, PARAGRAPH 5, OF THE REVISEDPENAL CODE.

IV


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THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED- APPELLANT OF THE CRIME OF CARNAPPING. (p. 8, Brief for the Appellee; p.106, Rollo)

As established by the evidence of the prosecution, the facts of the case are as follows-

On March 3, 1987, at about 9:00 P.M., Dr. Chua, appellant Gulinao (driver-bodyguard of Dr. Chua), Virgilio Caguioa (secretary of Dr. Chua), Vice Mayor TeofiloReyes of Malabon, Dante Reyes (nephew of Vice Mayor Reyes), Boy Salazar andother politicians were having a caucus in the house of a certain Torre in Acacia,Malabon. After the caucus at about 11:00 P.M., the group of Dr. Chua boarded Dr.Chua's car and that of Vice Mayor Reyes and proceeded to the Bar-Bar Disco Housealong McArthur Highway, Valenzuela, Metro Manila (pp. 5-10, TSN April 6, 1987)

Upon arriving at the disco house, Gulinao, who had in his possession an Ingrammachine pistol, swapped the same with a .45 caliber pistol in possession of DanteReyes. Gulinao then tucked the .45 caliber pistol in his right waist (pp. 11-13, TSNMay 18, 1987).

Inside the disco house, Dr. Chua, Gulinao and companions occupied 2 tables whichwere joined together neat, the stage (pp. 14-18, TSN April 6, 1987). Later, Gulinaowent to the comfort room and cocked the .45 caliber pistol. He then returned to hisseat beside Dr. Chua (pp. 14-15 TSN May 18, 1987).

While Dr. Chua was watching the floor show, Gulinao stood up and shot him on thehead at close range with the .45 caliber pistol (pp. 16-17 TSN May 22, 1987). WhenGulinao was about to leave the disco house, he turned back to Dr. Chua and took thelatter's gold ring embedded with 12 diamonds (p. 11 TSN October 5, 1987; pp. 28-29TSN April 6, 1987; Exhs. "H" and "L-1") Thereupon, Gulinao rushed outside the discohouse to the car of Dr. Chua (p. 27 TSN April 6, 1987).

Poking the gun at Caguioa who was inside the car, Gulinao ordered the former toleave the car. While Caguioa was getting out of the car, Gulinao fired at him butmissed (pp. 27-29 TSN April 6, 1987). On the other hand, Dante Reyes tried to fire atGulinao with the Ingram machine pistol, but the Ingram jammed (pp. 16-17 TSN May18, 1987).

Gulinao drove the car towards Monumento (p. 29 TSN April 6, 1987). However, hewas constrained to leave the car and take a taxi when the car he was driving figuredin an accident in Malabon (p. 15 TSN July 10, 1987; Exh. "L-1").

Dr. Chua, who sustained gunshot wounds oil the head, was brought to the nearbyOur Lady of Fatima Hospital where he died on arrival (p. 17 TSN May 18, 1981). (pp.

8-11, Brief for the Appellee; p. 106, Rollo)

The contention of Gulinao in his first assignment of error is false. The record shows that he wasgiven several opportunities to present his defense but it was he who refused to take the witnessstand or to present any evidence.

Gulinao's second assignment of error raises a question of double jeopardy. It is claimed that "theindictment for violation of Presidential Decree No. 1866 (Illegal Possession of Firearm) against theaccused-appellant in Crim. Case No. 8016-V-87 after he was already slapped of the same violation


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before the Regional Trial Court of Manila (in Crim. Case No. 87-52928) involving the same firearmand ammunition is a classic case of putting the accused-appellant in jeopardy (pp. 10-11, appellant'sbrief).

This issue had already been raised by Gulinao in a petition for certiorari (CA-G.R. SP No. 12412)before the Court of Appeals. which in a Decision dated September 22, 1987 held that-

Since the incident that spawned Criminal Case No. 87-52928 in Manila happenedon March 5, 1987 , while that in Criminal Case No. 8016-V-87 pending before RTC,Valenzuela, happened on March 4, 1987 ; and since in the first case the charge isthat of illegal possession of firearms and that in the second case the commission ofmurder with the use of an illegally possessed firearms, it follows that there is noIdentity of the crime charged and hence, no double jeopardy.

xxx xxx xxx

As stated by the court a quo, there is no possibility of double jeopardy, as the possession thereofhad taken place in two separate and distinct places and jurisdiction and the two informations

state different dates of commission. (pp. 164 and 169, Rec.; Emphasis supplied; See also Lu Haycovs. Court of Appeals, 138 SCRA 227 [1985]. (pp. 15-16, Brief for the Appellee; p. 106, Rollo)

In respect to his third assignment of error Gulinao should have been convicted of the crime of theftunder Art. 308, Revised Penal Code, not robbery with the use of violence against or intimidation of aperson under par. 5, Art. 294 Revised Penal Code. As the trial court itself noted, on the basis ofPatino's testimony, the taking of the ring of Dr. Chua was merely an afterthought. The forceemployed in the killing of Dr. Chua has no bearing on the taking of his ring.

Gulinao's contention in his fourth assignment of error that there was no proof of intent to gain in thetaking of Dr. Chua's car is bereft of merit. Intent to gain, being an internal act, is presumed from theunlawful taking of the car. This presumption was unrebutted.

IN VIEW OF THE FOREGOING, the appealed Decision dated Nov. 23,1987, with respect to thecases for "Illegal Possession of Firearm with Murder" (Crim. Case No. 8016-V-87) and "Carnapping"(Crim. Case No. 8048-V-87) is AFFIRMED in toto, it being in accordance with the law and evidence.

With respect to the case for "Robbery" (Crim. Case No. 8017V- 871), par. 2 of the dispositive portionof the appealed Decision is MODIFIED to the effect that Gulinao is convicted of the crime of Theftand sentenced to suffer the indeterminate penalty of 3 years, 6 months and 21 days to 4 years, 9months and 10 days of prision correccional as minimum and 7 years, 4 months and 1 day to 8 yearsand 8 months of prision mayor , as maximum.

SO ORDERED.


Manila

FIRST DIVISION

G.R. No. 77429 January 29, 1990


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LAURO SANTOS, petitioner,vs.PEOPLE OF THE PHILIPPINES, respondent.

Puruganan, Chato, Chato & Tan for petitioner,

CRUZ, J .:

The factual findings of the lower courts are as a matter of policy not disturbed by this Court in theabsence of any of the recognized exceptions that will justify reversal. As none of these exceptionsappears in the case at bar, the petitioner's conviction, based on such findings, must be affirmed.

The evidence of the prosecution is, in the view of the Court, conclusive of the petitioner's guilt.

Sometime in November 1980, the complaining witness, Encarnacion Peñalosa, entrusted her car, a1976 Ford Escort, to herein petitioner Lauro Santos for repair of the carburetor. The work was to

cost P300.00. A week later, Santos persuaded her to have her car repainted by him for P6,500.00,within a period of two months. 1

After two months, Peñalosa went to the petitioner's repair shop at MacArthur Highway, Malabon, toretrieve her car. Santos refused to deliver the vehicle unless she paid him P634.60 for the repairs.

As she did not have the money then, she left the shop to get the needed payment. Upon her return,she could not find Santos although she waited five hours for him. She went back to the shop severaltimes thereafter but to no avail. 2

Peñalosa was to learn later that Santos had abandoned his shop in Malabon. Unable to recover hercar, she filed a complaint for carnapping against Santos with the Constabulary Highway PatrolGroup in Camp Crame. The case was dismissed when the petitioner convinced the military

authorities that the complainant had sold the vehicle to him. He submitted for this purpose a Deed ofSale with Right of Repurchase in his favor. 3

This notwithstanding, an information for estafa on Peñalosa's complaint was filed against Santos inthe Regional Trial Court of Quezon City on October 26,1982. After trial, the accused was found guiltyas charged and sentenced to "an indeterminate penalty of from four (4) months and one (1) day asminimum to four (4) years and two (2) months as maximum, both of prision correccional, toindemnify the offended party in the amount of P38,000.00 which is the value of the car withoutsubsidiary imprisonment in case of insolvency and with costs." 4

On appeal, the conviction was affirmed but Santos was held guilty of qualified theft and not estafa.The dispositive portion of the decision of the respondent court 5 read:

WHEREFORE, the judgment appealed from is MODIFIED: the offense committed bythe appellant is qualified theft and he is hereby sentenced to an indeterminatepenalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor , asminimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusiontemporal , as maximum; to indemnify Encarnacion Peñalosa the sum of P20,000.00without subsidiary imprisonment in case of insolvency; and, to pay the costs.


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In his defense, the petitioner now quibbles about the supposed inconsistences of the complainingwitness that he says make her testimony questionable. Our ruling is that such inconsistencies areminor lapses and do not impair Peñalosa's credibility as a whole. Santos also wonders why, if it istrue that she had asked him to repair and repaint her car, she had not even made an advancepayment. One reason could be that he himself did not ask for such advance, considering that theywere members of the same bowling team. There is even the suggestion that he was smitten with her

although she says she rejected his suit.6

The petitioner's main reliance, though, is on the Deed of Sale with Right of Repurchase which hesubmitted at the trial to prove that Peñalosa had sold the car to him and now had no claim to it.

The lower courts were correct in rejecting this shoddy evidence. It is a wonder that it was evenconsidered at all when the case filed in Camp Crame was dismissed.

A cursory look at this alleged document will show that it is spurious. There are alterations anddeletions that are not even initialed to authenticate the changes. Two entire paragraphs arecancelled. The name and address of the supposed original vendee are crossed out and those of thepetitioner are written in place of the deletions. Moreover, the so-called deed is not notarized.

It would have been so easy to re-type the one-page document to express clearly and indubitably theintent of the parties and then have it properly acknowledged. But this was not done. The petitionerinsists that the document was originally intended to be concluded between Peñalosa and DomingoCorsiga but was hastily changed to make Santos the buyer and mortgagee. 7 Surely a vendee wouldnot be so rash as to depend for his title to the thing purchased on such a shabby and dubious deed ofsale.

The petitioner also makes much of the fact that Peñalosa did not even sign a job order or get areceipt when she delivered her car to him for repairs. In fact, she did not even check where his repairshop was. He forgets that he was no less trusting either. He himself does not explain why theamount of P6,000.00 he allegedly gave for the car was not acknowledged by Peñalosa in the Deedof Sale or in a separate instrument. There was no proof at all of such payment.

Given these circumstances, we find it easier to believe that Peñalosa had signed the originaldocument with the intention of selling her car to Domingo Corsiga, the party first named therein, butlater changed her mind. She left the unused document in her car and Santos, chancing upon it whenthe vehicle was delivered to him, decided to modify it to suit his purposes.

Besides, as the respondent court correctly observed, why would Santos still demand from Peñalosathe cost of the repairs on the car if he claims he had already bought it from her? And there is alsothe glaring fact that Santos was unable to register the car in his name despite the lapse of all of twoyears after his alleged purchase of the vehicle.

In his supplemental memorandum, the petitioner says he could not register the car because it had

merely been mortgaged to him and he had to wait until the expiration of the period ofrepurchase. 8 Yet, during his cross-examination on March 5, 1984, Santos repeatedly declared that thecar belonged to him and that the right of repurchase expired after two months from November orDecember 1980. He also said that rather than register it, he could cannibalize the car and sell the spareparts separately at greater profit. 9

The Court also notes that, according to Santos, he accompanied Peñalosa to redeem her car fromCorsiga and that he himself gave her the money for such redemption in Corsiga'spresence. 10 Having made that allegation, it was for the petitioner himself to present Corsiga as his


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witness to corroborate that statement. Santos did not, and so failed to prove what was, to begin with, animprobable defense. Ei incumbit probatio ui dicit.

Although the information charged the petitioner with estafa, the crime committed was theft. It issettled that what controls is not the designation of the offense but the description thereof as allegedin the information. 11 And as described therein, the offense imputed to Santos contains all the essential

elements of theft, to wit: (1) that there be a taking of personal property; (2) that said property belongs toanother; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent ofthe owner; and (5) that the taking be accomplished without the use of violence or intimidation againstpersons or force upon things. 12

Theft should not be confused with estafa. According to Chief Justice Ramon C. Aquino in his bookon the Revised Penal Code, "The principal distinction between the two crimes is that in theft thething is taken while in estafa the accused receives the property and converts it to his own use orbenefit. However, there may be theft even if the accused has possession of the property. If he wasentrusted only with the material or physical (natural) or de factopossession of the thing, hismisappropriation of the same constitutes theft, but if he has the juridical possession of the thing, hisconversion of the same constitutes embezzlement or estafa." 13

The petitioner argues that there was no intent to gain at the time of the taking of the vehicle and sono crime was committed. In U.S. v. De Vera, 14 we held that the subsequent appropriation by theaccused of the thing earlier delivered to him supplied the third element that made the crime theft insteadof estafa.

Illustrating, the Court declared:

... let us suppose that A, a farmer in the Province of Bulacan, agrees to sell B acertain quantity of rice at a certain price per picul. A ships several sacks of the grainwhich B receives in his warehouse. If, prior to the measuring required before thepayment of the agreed price, B takes a certain quantity of rice from the differentsacks, there can be no doubt that he is guilty of the crime of theft. Now, it may be

asked: Did not B receive the sacks of rice shipped to him by A?-Yes. And did Avoluntarily deliver the sacks of rice which he owned by shipping them to B?-Yes Wasthe taking of the rice by B from the different sacks done with A's consent?- No.

This shows, to our mind, that the theory of the defense is untenable, according towhich, when the thing is received and then appropriated or converted to one's ownuse without the consent of the owner, the crime committed is not that of theft.

It was erroneous for the respondent court to hold the petitioner guilty of qualified theft because thefact that the object of the crime was a car was not alleged in the information as a qualifyingcircumstance. 15 Santos would have had reason to argue that he had not been properly informed of thenature and cause of the accusation against him, as qualified theft carries a higher penalty.

But although not pleaded and so not considered qualifying, the same circumstance may beconsidered aggravating, having been proved at the trial. 16 Hence the imposable penalty for the theft,there being no other modifying circumstances, should be in the maximum degree.

According to the Solicitor General:

The value of the car is P38,000.00. Under Article 309 of the Revised Penal Code, ifthe value of the thing stolen exceeds P22,000.00, the penalty should be the


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maximum period of the prescribed penalty plus one year for each additionalP10,000.00. Thus the imposable penalty is the maximum of prision mayor with arange of TEN (10) YEARS and ONE (1) DAY to TWELVE (12) YEARS plus anadditional ONE (1) YEAR for every P10,000.00 in excess of P22,000.00, raising themaximum penalty into Reclusion Temporal in the minimum period.

Applying the Indeterminate Sentence Law, there being one aggravating and nomitigating circumstance the imposable penalty recommended is from SIX (6) YEARSand ONE (1) DAY of prision mayor to THIRTEEN (13) YEARS of reclusion temporal.

We approve the above observations and sentence the petitioner accordingly,

WHEREFORE, the appealed decision is AFFIRMED as herein modified. The petitioner is declaredguilty of theft and sentenced to from six (6) years and one (1) day of prision mayor to thirteen (13)years of reclusion temporal . He is also ordered to restore the car in question to the privaterespondent, or if this is no longer possible, to pay her the value thereof in the amount of P38,000.00,

SO ORDERED.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.


Manila

FIRST DIVISION

G.R. No. 155076 February 27, 2006

LUIS MARCOS P. LAUREL, Petitioner,

vs.HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, Makati City, Branch150, PEOPLE OF THE PHILIPPINES& PHILIPPINE LONG DISTANCE TELEPHONECOMPANY, Respondents.

D E C I S I O N

CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar, Regional Trial Court(RTC), Makati City, Branch 150, which denied the "Motion to Quash (With Motion to Defer

Arraignment)" in Criminal Case No. 99-2425 for theft.

Philippine Long Distance Telephone Company (PLDT) is the holder of a legislative franchise torender local and international telecommunication services under Republic Act No. 7082.2 Under saidlaw, PLDT is authorized to establish, operate, manage, lease, maintain and purchasetelecommunication systems, including transmitting, receiving and switching stations, for bothdomestic and international calls. For this purpose, it has installed an estimated 1.7 million telephonelines nationwide. PLDT also offers other services as authorized by Certificates of PublicConvenience and Necessity (CPCN) duly issued by the National Telecommunications Commission

http://www.lawphil.net/judjuris/juri2006/feb2006/gr_155076_2006.html#fnt1http://www.lawphil.net/judjuris/juri2006/feb2006/gr_155076_2006.html#fnt1http://www.lawphil.net/judjuris/juri2006/feb2006/gr_155076_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/feb2006/gr_155076_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/feb2006/gr_155076_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/feb2006/gr_155076_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/feb2006/gr_155076_2006.html#fnt1


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directors); Gina C. Mukaida, a Filipina (board member and president); Luis Marcos P. Laurel, aFilipino (board member and corporate secretary); Ricky Chan Pe, a Filipino (board member andtreasurer); and Yasushi Ueshima, also a Japanese national (board member).

Upon complaint of PLDT against Baynet for network fraud, and on the strength of two searchwarrants10 issued by the RTC of Makati, Branch 147, National Bureau of Investigation (NBI) agents

searched its office at the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on November 8,1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J. Villegas werearrested by NBI agents while in the act of manning the operations of Baynet. Seized in the premisesduring the search were numerous equipment and devices used in its ISR activities, such asmultiplexers, modems, computer monitors, CPUs, antenna, assorted computer peripheral cords andmicroprocessors, cables/wires, assorted PLDT statement of accounts, parabolic antennae andvoltage regulators.

State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued a Resolution 11 onJanuary 28, 2000, finding probable cause for theft under Article 308 of the Revised Penal Code andPresidential Decree No. 40112 against the respondents therein, including Laurel.

On February 8, 2000, State Prosecutor Calo filed an Information with the RTC of Makati Citycharging Matsuura, Miyake, Lacson and Villegas with theft under Article 308 of the Revised PenalCode. After conducting the requisite preliminary investigation, the State Prosecutor filed an

Amended Information impleading Laurel (a partner in the law firm of Ingles, Laurel, Salinas, and,until November 19, 1999, a member of the board of directors and corporate secretary of Baynet),and the other members of the board of directors of said corporation, namely, Yuji Hijioka, YasushiUeshima, Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the Revised PenalCode. The inculpatory portion of the Amended Information reads:

On or about September 10-19, 1999, or prior thereto, in Makati City, and within the jurisdiction of thisHonorable Court, the accused, conspiring and confederating together and all of them mutuallyhelping and aiding one another, with intent to gain and without the knowledge and consent of thePhilippine 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 conductingInternational Simple Resale (ISR), which is a method of routing and completing international longdistance calls using lines, cables, antennae, and/or air wave frequency which connect directly to thelocal or domestic exchange facilities of the country where the call is destined, effectively stealing thisbusiness from PLDT while using its facilities in the estimated amount of P20,370,651.92 to thedamage and prejudice of PLDT, in the said amount.

CONTRARY TO LAW.13

Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the ground that thefactual allegations in the Amended Information do not constitute the felony of theft under Article 308of the Revised Penal Code. He averred that the Revised Penal Code, or any other special penal law

for that matter, does not prohibit ISR operations. He claimed that telephone calls with the use ofPLDT telephone lines, whether domestic or international, belong to the persons making the call, notto PLDT. He argued that the caller merely uses the facilities of PLDT, and what the latter owns arethe telecommunication infrastructures or facilities through which the call is made. He also assertedthat PLDT is compensated for the caller’s use of its facilities by way of rental; for an outgoingoverseas call, PLDT charges the caller per minute, based on the duration of the call. Thus, nopersonal property was stolen from PLDT. According to Laurel, the P20,370,651.92 stated in theInformation, if anything, represents the rental for the use of PLDT facilities, and not the value ofanything owned by it. Finally, he averred that the allegations in the Amended Information are already

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subsumed under the Information for violation of Presidential Decree (P.D.) No. 401 filed and pendingin the Metropolitan Trial Court of Makati City, docketed as Criminal Case No. 276766.

The prosecution, through private complainant PLDT, opposed the motion,14 contending that themovant unlawfully took personal property belonging to it, as follows: 1) intangible telephone servicesthat are being offered by PLDT and other telecommunication companies, i.e., the connection and

interconnection to their telephone lines/facilities; 2) the use of those facilities over a period of time;and 3) the revenues derived in connection with the rendition of such services and the use of suchfacilities.15

The prosecution asserted that the use of PLDT’s intangible telephone services/facilities allowselectronic voice signals to pass through the same, and ultimately to the called party’s number. Itaverred that such service/facility is akin to electricity which, although an intangible property, may,nevertheless, be appropriated and be the subject of theft. Such service over a period of time for aconsideration is the business that PLDT provides to its customers, which enables the latter to sendvarious messages to installed recipients. The service rendered by PLDT is akin to merchandisewhich has specific value, and therefore, capable of appropriation by another, as in this case, throughthe ISR operations conducted by the movant and his co-accused.

The prosecution further alleged that "international business calls and revenues constitute personalproperty envisaged in Article 308 of the Revised Penal Code." Moreover, the intangible telephoneservices/facilities belong to PLDT and not to the movant and the other accused, because they haveno telephone services and facilities of their own duly authorized by the NTC; thus, the taking by themovant and his co-accused of PLDT services was with intent to gain and without the latter’s consent.

The prosecution pointed out that the accused, as well as the movant, were paid in exchange for theirillegal appropriation and use of PLDT’s telephone services and facilities; on the other hand, theaccused did not pay a single centavo for their illegal ISR operations. Thus, the acts of the accusedwere akin to the use of a "jumper" by a consumer to deflect the current from the house electricmeter, thereby enabling one to steal electricity. The prosecution emphasized that its position isfortified by the Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 97-

0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which were issued on August 14, 2000 finding probable cause for theft against the respondents therein.

On September 14, 2001, the RTC issued an Order 16 denying the Motion to Quash the AmendedInformation. The court declared that, although there is no law that expressly prohibits the use of ISR,the facts alleged in the Amended Information "will show how the alleged crime was committed byconducting ISR," to the damage and prejudice of PLDT.

Laurel filed a Motion for Reconsideration17 of the Order, alleging that international long distance callsare not personal property, and are not capable of appropriation. He maintained that business orrevenue is not considered personal property, and that the prosecution failed to adduce proof of itsexistence and the subsequent loss of personal property belonging to another. Citing the ruling of the

Court in United States v. De Guzman,18

Laurel averred that the case is not one with telephone callswhich originate with a particular caller and terminates with the called party. He insisted thattelephone calls are considered privileged communications under the Constitution and cannot beconsidered as "the property of PLDT." He further argued that there is no kinship between telephonecalls and electricity or gas, as the latter are forms of energy which are generated and consumable,and may be considered as personal property because of such characteristic. On the other hand, themovant argued, the telephone business is not a form of energy but is an activity.

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In its Order 19 dated December 11, 2001, the RTC denied the movant’s Motion for Reconsideration.This time, it ruled that what was stolen from PLDT was its "business" because, as alleged in the

Amended Information, the international long distance calls made through the facilities of PLDTformed part of its business. The RTC noted that the movant was charged with stealing the businessof PLDT. To support its ruling, it cited Strochecker v. Ramirez,20 where the Court ruled that interest inbusiness is personal property capable of appropriation. It further declared that, through their ISR

operations, the movant and his co-accused deprived PLDT of fees for international long distancecalls, and that the ISR used by the movant and his co-accused was no different from the "jumper"used for stealing electricity.

Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC. He alleged thatthe respondent judge gravely abused his discretion in denying his Motion to Quash the AmendedInformation.21 As gleaned from the material averments of the amended information, he was chargedwith stealing the international long distance calls belonging to PLDT, not its business. Moreover, theRTC failed to distinguish between the business of PLDT (providing services for international longdistance calls) and the revenues derived therefrom. He opined that a "business" or its revenuescannot be considered as personal property under Article 308 of the Revised Penal Code, since a"business" is "(1) a commercial or mercantile activity customarily engaged in as a means oflivelihood and typically involving some independence of judgment and power of decision; (2) acommercial or industrial enterprise; and (3) refers to transactions, dealings or intercourse of anynature." On the other hand, the term "revenue" is defined as "the income that comes back from aninvestment (as in real or personal property); the annual or periodical rents, profits, interests, orissues of any species of real or personal property."22

Laurel further posited that an electric company’s business is the production and distribution ofelectricity; a gas company’s business is the production and/or distribution of gas (as fuel); while awater company’s business is the production and distribution of potable water. He argued that the"business" in all these cases is the commercial activity, while the goods and merchandise are theproducts of such activity. Thus, in prosecutions for theft of certain forms of energy, it is the electricityor gas which is alleged to be stolen and not the "business" of providing electricity or gas. However,since a telephone company does not produce any energy, goods or merchandise and merely

renders a service or, in the words of PLDT, "the connection and interconnection to their telephonelines/facilities," such service cannot be the subject of theft as defined in Article 308 of the RevisedPenal Code.23

He further declared that to categorize "business" as personal property under Article 308 of theRevised Penal Code would lead to absurd consequences; in prosecutions for theft of gas, electricityor water, it would then be permissible to allege in the Information that it is the gas business, theelectric business or the water business which has been stolen, and no longer the merchandiseproduced by such enterprise.24

Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,25 where it wasruled that the Revised Penal Code, legislated as it was before present technological advances wereeven conceived, is not adequate to address the novel means of "stealing" airwaves or airtime. Insaid resolution, it was noted that the inadequacy prompted the filing of Senate Bill 2379 (sic) entitled"The Anti-Telecommunications Fraud of 1997" to deter cloning of cellular phones and other forms ofcommunications fraud. The said bill "aims to protect in number (ESN) (sic) or Capcode, mobileidentification number (MIN), electronic-international mobile equipment identity (EMEI/IMEI), orsubscriber identity module" and "any attempt to duplicate the data on another cellular phone withoutthe consent of a public telecommunications entity would be punishable by law."26 Thus, Laurelconcluded, "there is no crime if there is no law punishing the crime."

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On August 30, 2002, the CA rendered judgment dismissing the petition.27 The appellate court ruledthat a petition for certiorari under Rule 65 of the Rules of Court was not the proper remedy of thepetitioner. On the merits of the petition, it held that while business is generally an activity

which is abstract and intangible in form, it is nevertheless considered "property" under Article 308 ofthe Revised Penal Code. The CA opined that PLDT’s business of providing international calls is

personal property which may be the object of theft, and cited United States v. Carlos28

to supportsuch conclusion. The tribunal also cited Strochecker v. Ramirez,29 where this Court ruled that one-half interest in a day’s business is personal property under Section 2 of Act No. 3952, otherwiseknown as the Bulk Sales Law. The appellate court held that the operations of the ISR are notsubsumed in the charge for violation of P.D. No. 401.

Laurel, now the petitioner, assails the decision of the CA, contending that -

THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE "INTERNATIONAL LONGDISTANCE CALLS" BUT THE "BUSINESS OF PLDT."

THE COURT OF APPEALS ERRED IN RULING THAT THE TERM "BUSINESS" ISPERSONAL PROPERTY WITHIN THE MEANING OF ART. 308 OF THE REVISED PENALCODE.30

Petitioner avers that the petition for a writ of certiorari may be filed to nullify an interlocutory order ofthe trial court which was issued with grave abuse of discretion amounting to excess or lack of

jurisdiction. In support of his petition before the Court, he reiterates the arguments in his pleadingsfiled before the CA. He further claims that while the right to carry on a business or an interest orparticipation in business is considered property under the New Civil Code, the term "business,"however, is not. He asserts that the Philippine Legislature, which approved the Revised Penal Codeway back in January 1, 1932, could not have contemplated to include international long distancecalls and "business" as personal property under Article 308 thereof.

In its comment on the petition, the Office of the Solicitor General (OSG) maintains that the amendedinformation clearly states all the essential elements of the crime of theft. Petitioner’s interpretation asto whether an "international long distance call" is personal property under the law is inconsequential,as a reading of the amended information readily reveals that specific acts and circumstances werealleged charging Baynet, through its officers, including petitioner, of feloniously taking, stealing andillegally using international long distance calls belonging to respondent PLDT by conducting ISRoperations, thus, "routing and completing international long distance calls using lines, cables,antenna and/or airwave frequency which connect directly to the local or domestic exchange facilitiesof the country where the call is destined." The OSG maintains that the international long distancecalls alleged in the amended information should be construed to mean "business" of PLDT, which,while abstract and intangible in form, is personal property susceptible of appropriation.31 The OSGavers that what was stolen by petitioner and his co-accused is the business of PLDT providing

international long distance calls which, though intangible, is personal property of the PLDT.32

For its part, respondent PLDT asserts that personal property under Article 308 of the Revised PenalCode comprehends intangible property such as electricity and gas which are valuable articles formerchandise, brought and sold like other personal property, and are capable of appropriation. Itinsists that the business of international calls and revenues constitute personal property because thesame are valuable articles of merchandise. The respondent reiterates that international calls involve(a) the intangible telephone services that are being offered by it, that is, the connection and

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interconnection to the telephone network, lines or facilities; (b) the use of its telephone network, linesor facilities over a period of time; and (c) the income derived in connection therewith.33

PLDT further posits that business revenues or the income derived in connection with the rendition ofsuch services and the use of its telephone network, lines or facilities are personal properties under

Article 308 of the Revised Penal Code; so is the use of said telephone services/telephone network,

lines or facilities which allow electronic voice signals to pass through the same and ultimately to thecalled party’s number. It is akin to electricity which, though intangible property, may nevertheless beappropriated and can be the object of theft. The use of respondent PLDT’s telephone network, lines,or facilities over a period of time for consideration is the business that it provides to its customers,which enables the latter to send various messages to intended recipients. Such use over a period oftime is akin to merchandise which has value and, therefore, can be appropriated by another.

According to respondent PLDT, this is what actually happened when petitioner Laurel and the otheraccused below conducted illegal ISR operations.34

The petition is meritorious.

The issues for resolution are as follows: (a) whether or not the petition for certiorari is the proper

remedy of the petitioner in the Court of Appeals; (b) whether or not international telephone callsusing Bay Super Orient Cards through the telecommunication services provided by PLDT for suchcalls, or, in short, PLDT’s business of providing said telecommunication services, are propersubjects of theft under Article 308 of the Revised Penal Code; and (c) whether or not the trial courtcommitted grave abuse of discretion amounting to excess or lack of jurisdiction in denying themotion of the petitioner to quash the amended information.

On the issue of whether or not the petition for certiorari instituted by the petitioner in the CA isproper, the general rule is that a petition for certiorari under Rule 65 of the Rules of Court, asamended, to nullify an order denying a motion to quash the Information is inappropriate because theaggrieved party has a remedy of appeal in the ordinary course of law. Appeal and certiorari aremutually exclusive of each other. The remedy of the aggrieved party is to continue with the case indue course and, when an unfavorable judgment is rendered, assail the order and the decision on

appeal. However, if the trial court issues the order denying the motion to quash the AmendedInformation with grave abuse of discretion amounting to excess or lack of jurisdiction, or if such orderis patently erroneous, or null and void for being contrary to the Constitution, and the remedy ofappeal would not afford adequate and expeditious relief, the accused may resort to the extraordinaryremedy of certiorari.35 A special civil action for certiorari is also available where there are specialcircumstances clearly demonstrating the inadequacy of an appeal. As this Court held in BristolMyers Squibb (Phils.), Inc. v. Viloria:36

Nonetheless, the settled rule is that a writ of certiorari may be granted in cases where, despiteavailability of appeal after trial, there is at least a prima facie showing on the face of the petition andits annexes that: (a) the trial court issued the order with grave abuse of discretion amounting to lackof or in excess of jurisdiction; (b) appeal would not prove to be a speedy and adequate remedy; (c)

where the order is a patent nullity; (d) the decision in the present case will arrest future litigations;and (e) for certain considerations such as public welfare and public policy.37

In his petition for certiorari in the CA, petitioner averred that the trial court committed grave abuse ofits discretion amounting to excess or lack of jurisdiction when it denied his motion to quash the

Amended Information despite his claim that the material allegations in the Amended Information donot charge theft under Article 308 of the Revised Penal Code, or any offense for that matter. By sodoing, the trial court deprived him of his constitutional right to be informed of the nature of the chargeagainst him. He further averred that the order of the trial court is contrary to the constitution and is,

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thus, null and void. He insists that he should not be compelled to undergo the rigors and tribulationsof a protracted trial and incur expenses to defend himself against a non-existent charge.

Petitioner is correct.

An information or complaint must state explicitly and directly every act or omission constituting an

offense38 and must allege facts establishing conduct that a penal statute makes criminal;39 anddescribes the property which is the subject of theft to advise the accused with reasonable certaintyof the accusation he is called upon to meet at the trial and to enable him to rely on the judgmentthereunder of a subsequent prosecution for the same offense.40 It must show, on its face, that if thealleged facts are true, an offense has been committed. The rule is rooted on the constitutional rightof the accused to be informed of the nature of the crime or cause of the accusation against him. Hecannot be convicted of an offense even if proven unless it is alleged or necessarily included in theInformation filed against him.

As a general prerequisite, a motion to quash on the ground that the Information does not constitutethe offense charged, or any offense for that matter, should be resolved on the basis of saidallegations whose truth and veracity are hypothetically committed;41 and on additional facts admitted

or not denied by the prosecution.

42

If the facts alleged in the Information do not constitute an offense,the complaint or information should be quashed by the court.43

We have reviewed the Amended Information and find that, as mentioned by the petitioner, it doesnot contain material allegations charging the petitioner of theft of personal property under Article 308of the Revised Penal Code. It, thus, behooved the trial court to quash the Amended Information. TheOrder of the trial court denying the motion of the petitioner to quash the Amended Information is apatent nullity.

On the second issue, we find and so hold that the international telephone calls placed by Bay SuperOrient Card holders, the telecommunication services provided by PLDT and its business of providingsaid services are not personal properties under Article 308 of the Revised Penal Code. Theconstruction by the respondents of Article 308 of the said Code to include, within its coverage, the

aforesaid international telephone calls, telecommunication services and business is contrary to theletter and intent of the law.

The rule is that, penal laws are to be construed strictly. Such rule is founded on the tenderness ofthe law for the rights of individuals and on the plain principle that the power of punishment is vestedin Congress, not in the judicial department. It is Congress, not the Court, which is to define a crime,and ordain its punishment.44 Due respect for the prerogative of Congress in defining crimes/feloniesconstrains the Court to refrain from a broad interpretation of penal laws where a "narrowinterpretation" is appropriate. The Court must take heed to language, legislative history and purpose,in order to strictly determine the wrath and breath of the conduct the law forbids.45However, when thecongressional purpose is unclear, the court must apply the rule of lenity, that is, ambiguityconcerning the ambit of criminal statutes should be resolved in favor of lenity.46

Penal statutes may not be enlarged by implication or intent beyond the fair meaning of the languageused; and may not be held to include offenses other than those which are clearly described,notwithstanding that the Court may think that Congress should have made them morecomprehensive.47 Words and phrases in a statute are to be construed according to their commonmeaning and accepted usage.

As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the principle that acase which is within the reason or

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mischief of a statute is within its provision, so far as to punish a crime not enumerated in the statutebecause it is of equal atrocity, or of kindred character with those which are enumerated.48 Wheninterpreting a criminal statute that does not explicitly reach the conduct in question, the Court shouldnot base an expansive reading on inferences from subjective and variable understanding.49

Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Who are liable for theft. – Theft is committed by any person who, with intent to gain butwithout violence, against or intimidation of persons nor force upon things, shall take personalproperty of another without the latter ’s consent.

The provision was taken from Article 530 of the Spanish Penal Code which reads:

1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las personas ni fuerza en lascosas, toman las cosas muebles ajenas sin la voluntad de su dueño.50

For one to be guilty of theft, the accused must have an intent to steal (animus furandi) personalproperty, meaning the intent to deprive another of his ownership/lawful possession of personal

property which intent is apart from and concurrently with the general criminal intent which is anessential element of a felony of dolo (dolus malus).

An information or complaint for simple theft must allege the following elements: (a) the taking ofpersonal property; (b) the said property belongs to another; (c) the taking be done with intent to gain;and (d) the taking be accomplished without the use of violence or intimidation of person/s or forceupon things.51

One is apt to conclude that "personal property" standing alone, covers both tangible and intangibleproperties and are subject of theft under the Revised Penal Code. But the words "Personal property"under the Revised Penal Code must be considered in tandem with the word "take" in the law. Thestatutory definition of "taking" and movable property indicates that, clearly, not all personal properties

may be the proper subjects of theft. The general rule is that, only movable properties which havephysical or material existence and susceptible of occupation by another are proper objects oftheft.52 As explained by Cuelo Callon: "Cosa juridicamente es toda sustancia corporal, material,susceptible de ser aprehendida que tenga un valor cualquiera."53

According to Cuello Callon, in the context of the Penal Code, only those movable properties whichcan be taken and carried from the place they are found are proper subjects of theft. Intangibleproperties such as rights and ideas are not subject of theft because the same cannot be "taken" fromthe place it is found and is occupied or appropriated.

Solamente las cosas muebles y corporales pueden ser objeto de hurto. La sustracción de cosasinmuebles y la cosas incorporales (v. gr., los derechos, las ideas) no puede integrar este delito,pues no es posible asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la expresión

"cosas mueble" en el sentido de cosa que es susceptible de ser llevada del lugar donde seencuentra, como dinero, joyas, ropas, etcétera, asi que su concepto no coincide por completo con elformulado por el Codigo civil (arts. 335 y 336).54

Thus, movable properties under Article 308 of the Revised Penal Code should be distinguished fromthe rights or interests to which they relate. A naked right existing merely in contemplation of law,although it may be very valuable to the person who is entitled to exercise it, is not the subject of theftor larceny.55 Such rights or interests are intangible and cannot be "taken" by another. Thus, right toproduce oil, good will or an interest in business, or the right to engage in business, credit or

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franchise are properties. So is the credit line represented by a credit card. However, they are notproper subjects of theft or larceny because they are without form or substance, the mere "breath" ofthe Congress. On the other hand, goods, wares and merchandise of businessmen and credit cardsissued to them are movable properties with physical and material existence and may be taken byanother; hence, proper subjects of theft.

There is "taking" of personal property, and theft is consummated when the offender unlawfullyacquires possession of personal property even if for a short time; or if such property is under thedominion and control of the thief. The taker, at some particular amount, must have obtainedcomplete and absolute possession and control of the property adverse to the rights of the owner orthe lawful possessor thereof .56 It is not necessary that the property be actually carried away out ofthe physical possession of the lawful possessor or that he should have made his escape withit.57 Neither asportation nor actual manual possession of property is required. Constructivepossession of the thief of the property is enough.58

The essence of the element is the taking of a thing out of the possession of the owner without hisprivity and consent and without animus revertendi.59

Taking may be by the offender’s own hands, by his use of innocent persons without any feloniousintent, as well as any mechanical device, such as an access device or card, or any agency, animateor inanimate, with intent to gain. Intent to gain includes the unlawful taking of personal property forthe purpose of deriving utility, satisfaction, enjoyment and pleasure.60

We agree with the contention of the respondents that intangible properties such as electrical energyand gas are proper subjects of theft. The reason for this is that, as explained by this Court in UnitedStates v. Carlos61 and United States v. Tambunting,62 based on decisions of the Supreme Court ofSpain and of the courts in England and the United States of America, gas or electricity are capableof appropriation by another other than the owner. Gas and electrical energy may be taken, carriedaway and appropriated. In People v. Menagas,63 the Illinois State Supreme Court declared thatelectricity, like gas, may be seen and felt. Electricity, the same as gas, is a valuable article ofmerchandise, bought and sold like other personal property and is capable of appropriation by

another. It is a valuable article of merchandise, bought and sold like other personal property,susceptible of being severed from a mass or larger quantity and of being transported from place toplace. Electrical energy may, likewise, be taken and carried away. It is a valuable commodity, boughtand sold like other personal property. It may be transported from place to place. There is nothing inthe nature of gas used for illuminating purposes which renders it incapable of being feloniously takenand carried away.

In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of Appeals of New York heldthat electric energy is manufactured and sold in determinate quantities at a fixed price, precisely asare coal, kerosene oil, and gas. It may be conveyed to the premises of the consumer, stored in cellsof different capacity known as an accumulator; or it may be sent through a wire, just as gas or oilmay be transported either in a close tank or forced through a pipe. Having reached the premises of

the consumer, it may be used in any way he may desire, being, like illuminating gas, capable ofbeing transformed either into heat, light, or power, at the option of the purchaser. In Woods v.People,65 the Supreme Court of Illinois declared that there is nothing in the nature of gas used forilluminating purposes which renders it incapable of being feloniously taken and carried away. It is avaluable article of merchandise, bought and sold like other personal property, susceptible of beingsevered from a mass or larger quantity and of being transported from place to place.

Gas and electrical energy should not be equated with business or services provided by businessentrepreneurs to the public. Business does not have an exact definition. Business is referred as that

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which occupies the time, attention and labor of men for the purpose of livelihood or profit. Itembraces everything that which a person can be employed.66 Business may also mean employment,occupation or profession. Business is also defined as a commercial activity for gain benefit oradvantage.67 Business, like services in business, although are properties, are not proper subjects oftheft under the Revised Penal Code because the same cannot be "taken" or "occupied." If it wereotherwise, as claimed by the respondents, there would be no juridical difference between the taking

of the business of a person or the services provided by him for gain, vis-à-vis, the taking of goods,wares or merchandise, or equipment comprising his business.68 If it was its intention to include"business" as personal property under Article 308 of the Revised Penal Code, the PhilippineLegislature should have spoken in language that is clear and definite: that business is personalproperty under Article 308 of the Revised Penal Code.69

We agree with the contention of the petitioner that, as gleaned from the material averments of the Amended Information, he is charged of "stealing the international long distance calls belonging toPLDT" and the use thereof, through the ISR. Contrary to the claims of the OSG and respondentPLDT, the petitioner is not charged of stealing P20,370,651.95 from said respondent. Said amountof P20,370,651.95 alleged in the Amended Information is the aggregate amount of access,transmission or termination charges which the PLDT expected from the international long distancecalls of the callers with the use of Baynet Super Orient Cards sold by Baynet Co. Ltd.

In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal propertywithout the consent of the owner thereof, the Philippine legislature could not have contemplated thehuman voice which is converted into electronic impulses or electrical current which are transmitted tothe party called through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within itscoverage. When the Revised Penal Code was approved, on December 8, 1930, internationaltelephone calls and the transmission and routing of electronic voice signals or impulses emanatingfrom said calls, through the PSTN, IPL and ISR, were still non-existent. Case law is that, where alegislative history fails to evidence congressional awareness of the scope of the statute claimed bythe respondents, a narrow interpretation of the law is more consistent with the usual approach to theconstruction of the statute. Penal responsibility cannot be extended beyond the fair scope of thestatutory mandate.70

Respondent PLDT does not acquire possession, much less, ownership of the voices of thetelephone callers or of the electronic voice signals or current emanating from said calls. The humanvoice and the electronic voice signals or current caused thereby are intangible and not susceptible ofpossession, occupation or appropriation by the respondent PLDT or even the petitioner, for thatmatter. PLDT merely transmits the electronic voice signals through its facilities and equipment.Baynet Card Ltd., through its operator, merely intercepts, reroutes the calls and passes them to itstoll center. Indeed, the parties called receive the telephone calls from Japan.

In this modern age of technology, telecommunications systems have become so tightly merged withcomputer systems that it is difficult to know where one starts and the other finishes. The telephoneset is highly computerized and allows computers to communicate across long distances.71 Theinstrumentality at issue in this case is not merely a telephone but a telephone inexplicably linked to acomputerized communications system with the use of Baynet Cards sold by the Baynet Card Ltd.The corporation uses computers, modems and software, among others, for its ISR.72

The conduct complained of by respondent PLDT is reminiscent of "phreaking" (a slang term for theaction of making a telephone system to do something that it normally should not allow by "makingthe phone company bend over and grab its ankles"). A "phreaker" is one who engages in the act ofmanipulating phones and illegally markets telephone services.73 Unless the phone company replacesall its hardware, phreaking would be impossible to stop. The phone companies in North America

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were impelled to replace all their hardware and adopted full digital switching system known as theCommon Channel Inter Office Signaling. Phreaking occurred only during the 1960’s and 1970’s,decades after the Revised Penal Code took effect.

The petitioner is not charged, under the Amended Information, for theft of telecommunication ortelephone services offered by PLDT. Even if he is, the term "personal property" under Article 308 of

the Revised Penal Code cannot be interpreted beyond its seams so as to include"telecommunication or telephone services" or computer services for that matter. The word "service"has a variety of meanings dependent upon the context, or the sense in which it is used; and, in someinstances, it may include a sale. For instance, the sale of food by restaurants is usually referred to as"service," although an actual sale is involved.74 It may also mean the duty or labor to be rendered byone person to another; performance of labor for the benefit of another .75 In the case of PLDT, it is torender local and international telecommunications services and such other services as authorized bythe CPCA issued by the NTC. Even at common law, neither time nor services may be taken andoccupied or appropriated.76 A service is generally not considered property and a theft of servicewould not, therefore, constitute theft since there can be no caption or asportation.77 Neither is theunauthorized use of the equipment and facilities of PLDT by the petitioner theft under theaforequoted provision of the Revised Penal Code.78

If it was the intent of the Philippine Legislature, in 1930, to include services to be the subject of theft,it should have incorporated the same in Article 308 of the Revised Penal Code. The Legislature didnot. In fact, the Revised Penal Code does not even contain a definition of services.

If taking of telecommunication services or the business of a person, is to be proscribed, it must be byspecial statute79 or an amendment of the Revised Penal Code. Several states in the United States,such as New York, New Jersey, California and Virginia, realized that their criminal statutes did notcontain any provisions penalizing the theft of services and passed laws defining and penalizing theftof telephone and computer services. The Pennsylvania Criminal Statute now penalizes theft ofservices, thus:

(a) Acquisition of services. --

(1) A person is guilty of theft if he intentionally obtains services for himself or for another which heknows are available only for compensation, by deception or threat, by altering or tampering with thepublic utility meter or measuring device by which such services are delivered or by causing orpermitting such altering or tampering, by making or maintaining any unauthorized connection,whether physically, electrically or inductively, to a distribution or transmission line, by attaching ormaintaining the attachment of any unauthorized device to any cable, wire or other component of anelectric, telephone or cable television system or to a television receiving set connected to a cabletelevision system, by making or maintaining any unauthorized modification or alteration to anydevice installed by a cable television system, or by false token or other trick or artifice to avoidpayment for the service.

In the State of Illinois in the United States of America, theft of labor or services or use of property ispenalized:

(a) A person commits theft when he obtains the temporary use of property, labor or services ofanother which are available only for hire, by means of threat or deception or knowing that such useis without the consent of the person providing the property, labor or services.

In 1980, the drafters of the Model Penal Code in the United States of America arrived at theconclusion that labor and services, including professional services, have not been included within

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