property cases (full) compiled

8/10/2019 Property Cases (Full) Compiled

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Republic of the PhilippinesSUPREME COURT

ManilaEN BANCG.R. No. L-16513 January 18, 1921THE UNITED STATES,plaintiff-appellee,

vs.MANUEL TAMBUNTING,defendant-appellant.Manuel Garcia Goyena for appellant.Acting Attorney-General Feria for appellee.STREET, J.:This appeal was instituted for the purpose of reversing a judgment of the Court of First Instanceof the city of Manila, finding the accused, Manuel Tambunting, guilty of stealing a quantity of gasbelonging to the Manila Gas Corporation, and sentencing him to undergo imprisonment for twomonths and one day, of arresto mayor, with the accessories prescribed by law; to indemnify thesaid corporation in the sum of P2, with subsidiary imprisonment in case of insolvency; and to paythe costs.The evidence submitted in behalf of the prosecution shows that in January of the year 1918, theaccused and his wife became occupants of the upper floor of the house situated at No. 443, CalleEvangelista, in the city of Manila. In this house the Manila Gas Corporation had previouslyinstalled apparatus for the delivery of gas on both the upper and lower floors, consisting of thenecessary piping and a gas meter, which last mentioned apparatus was installed below. Whenthe occupants at whose request this installation had been made vacated the premises, the gascompany disconnected the gas pipe and removed the meter, thus cutting off the supply of gasfrom said premises.Upon June 2, 1919, one of the inspectors of the gas company visited the house in question andfound that gas was being used, without the knowledge and consent of the gas company, forcooking in the quarters occupied by the defendant and his wife: to effect which a short piece ofiron pipe had been inserted in the gap where the gas meter had formerly been placed, and pieceof rubber tubing had been used to connect the gas pipe of rubber tubing had been used toconnect the gas pipe in kitchen with the gas stove, or plate, used for cooking.At the time this discovery was made, the accused, Manuel Tambunting, was not at home, but hepresently arrived and admitted to the agent to the gas company that he had made the connectionwith the rubber tubing between the gas pipe and the stove, though he denied making the

connection below. He also admitted that he knew he was using gas without the knowledge of thecompany and that he had been so using it for probably two or three months.The clandestine use of gas by the accused in the manner stated is thus established in our opinionbeyond a doubt; and inasmuch as the animo lucrandi is obvious, it only remains to consider, first,whether gas can be the subject to larceny and, secondly, whether the quantity of gasappropriated in the two months, during which the accused admitted having used the same, hasbeen established with sufficient certainty to enable the court to fix an appropriate penalty.Some legal minds, perhaps more academic than practical, have entertained doubt upon thequestion whether gas can be the subject of larceny; but no judicial decision has been called toour attention wherein any respectable court has refused to treat it as such. In U.S. vs. Genato (15Phil., 170, 175), this court, speaking through Mr. Justice Torres, said ". . . the right of theownership of electric current is secured by article 517 and 518 of the Penal Code; the applicationof these articles in cases of subtraction of gas, a fluid used for lighting, and in some respects

resembling electricity, is confirmed by the rule laid down in the decisions of the supreme court ofSpain of January 20, 1887, and April 1, 1897, construing and enforcing the provisions of articles530 and 531 of the Penal Code of that country, articles identical with articles 517 and 518 of thecode in force in these Islands." These expressions were used in a case which involved thesubtraction and appropriation of electrical energy and the court held, in accordance with theanalogy of the case involving the theft of gas, that electrical energy could also be the subject oftheft. The same conclusion was reached in U.S. vs. Carlos (21 Phil., 553), which was also a caseof prosecution for stealing electricity.The precise point whether the taking of gas may constitute larceny has never before, so far as thepresent writer is aware, been the subject of adjudication in this court, but the decisions of


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Spanish, English, and American courts all answer the question in the affirmative. (See U.S. vs.Carlos, 21 Phil., 553, 560.)In this connection it will suffice to quote the following from the topic "Larceny," at page 34, Vol.17, of Ruling Case Law:There is nothing in the nature of gas used for illuminating purposes which renders it incapable ofbeing feloniously taken and carried away. 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 ofbeing transported from place to place. Likewise water which is confined in pipes and electricitywhich is conveyed by wires are subjects of larceny."As to the amount and value of the gas appropriated by the accused in the period during which headmits having used it, the proof is not entirely satisfactory. Nevertheless we think the trial courtwas justified in fixing the value of the gas at P2 per month, which is the minimum charge for gasmade by the gas company, however small the amount consumed. That is to say, no persondesiring to use gas at all for domestic purposes can purchase the commodity at a lower rate permonth than P2. There was evidence before the court showing that the general average of themonthly bills paid by consumers throughout the city for the use of gas in a kitchen equipped likethat used by the accused is from P18 to 20, while the average minimum is about P8 per month.We think that the facts above stated are competent evidence; and the conclusion is inevitable thatthe accused is at least liable to the extent of the minimum charge of P2 per month. The marketvalue of the property at the time and place of the theft is of court the proper value to be proven(17 R.C.L., p. 66); and when it is found that the least amount that a consumer can take costs P2per months, this affords proof that the amount which the accused took was certainly worth thatmuch. Absolute certainty as to the full amount taken is of course impossible, because no meterwad used; but absolute certainty upon this point is not necessary, when it is certain that theminimum that could have been taken was worth a determinable amount.It appears that before the present prosecution was instituted, the accused had beenunsuccessfully prosecuted for an infraction of section 504 of the Revised Ordinances of the city ofManila, under a complaint charging that the accused, not being a registered installer of gasequipment had placed a gas installation in the house at No. 443, Calle Evangelista. Upon this it isargued for the accused that, having been acquitted of that charge, he is not now subject toprosecution for the offense of theft, having been acquitted of the former charge. The contention isevidently not well-founded, since the two offenses are of totally distinct nature. Furthermore, aprosecution for violation of a city ordinance is not ordinarily a bar to a subsequent prosecution for

the same offense under the general law of the land. (U.S. vs. Garcia Gavieres, 10 Phil., 694.)The conclusion is that the accused is properly subject to punishment, under No. 5 of article 518 ofthe Penal Code, for the gas taken in the course of two months a the rate of P2 per month. Therebeing no aggravating or attenuating circumstance to be estimated, it results that the properpenalty is two months and one day of arresto mayor, as fixed by the trial court. The judgment willtherefore be affirmed, with costs against the appellant, it being understood that the amount of theindemnity which the accused shall pay to the gas company is P4, instead of P2, with subsidiaryimprisonment for one day in case of insolvency. So ordered.Mapa, C.J., Araullo, Malcolm and Villamor, JJ., concur.


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ManilaFIRST DIVISIONG.R. No. 155076 February 27, 2006LUIS 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 NCALLEJO, SR., J .:Before us is a Petition for Review on Certiorari of the Decision

1of the Court of Appeals (CA) in

CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar, Regional TrialCourt (RTC), Makati City, Branch 150, which denied the "Motion to Quash (With Motion to DeferArraignment)" 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.

2Under

said law, 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 milliontelephone lines nationwide. PLDT also offers other services as authorized by Certificates ofPublic Convenience and Necessity (CPCN) duly issued by the National TelecommunicationsCommission (NTC), and operates and maintains an International Gateway Facility (IGF). ThePLDT network is thus principally composed of the Public Switch Telephone Network (PSTN),telephone handsets and/or telecommunications equipment used by its subscribers, the wires andcables linking said telephone handsets and/or telecommunications equipment, antenna, the IGF,and other telecommunications equipment which provide interconnections.

31avvphil.net

PLDT alleges that one of the alternative calling patterns that constitute network fraud and violateits network integrity is that which is known as International Simple Resale (ISR). ISR is a methodof routing and completing international long distance calls using International Private LeasedLines (IPL), cables, antenna or air wave or frequency, which connect directly to the local ordomestic exchange facilities of the terminating country (the country where the call is destined).

The IPL is linked to switching equipment which is connected to a PLDT telephone line/number. Inthe process, the calls bypass the IGF found at the terminating country, or in some instances,even those from the originating country.

4

One such alternative calling service is that offered by Baynet Co., Ltd. (Baynet) which sells "BaySuper Orient Card" phone cards to people who call their friends and relatives in the Philippines.With said card, one is entitled to a 27-minute call to the Philippines for about 37.03 per minute.After dialing the ISR access number indicated in the phone card, the ISR operator requests thesubscriber to give the PIN number also indicated in the phone card. Once the callers identity (aspurchaser of the phone card) is confirmed, the ISR operator will then provide a Philippine localline to the requesting caller via the IPL. According to PLDT, calls made through the IPL neverpass the toll center of IGF operators in the Philippines. Using the local line, the Baynet card useris able to place a call to any point in the Philippines, provided the local line is National Direct Dial(NDD) capable.

5

PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to course its incominginternational long distance calls from Japan. The IPL is linked to switching equipment, which isthen connected to PLDT telephone lines/numbers and equipment, with Baynet as subscriber.Through the use of the telephone lines and other auxiliary equipment, Baynet is able to connectan international long distance call from Japan to any part of the Philippines, and make it appearas a call originating from Metro Manila. Consequently, the operator of an ISR is able to evadepayment of access, termination or bypass charges and accounting rates, as well as compliancewith the regulatory requirements of the NTC. Thus, the ISR operator offers internationaltelecommunication services at a lower rate, to the damage and prejudice of legitimate operatorslike PLDT.

6


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PLDT, and what the latter owns are the telecommunication infrastructures or facilities throughwhich the call is made. He also asserted that PLDT is compensated for the callers use of it sfacilities by way of rental; for an outgoing overseas call, PLDT charges the caller per minute,based on the duration of the call. Thus, no personal property was stolen from PLDT. According toLaurel, the P20,370,651.92 stated in the Information, if anything, represents the rental for the useof PLDT facilities, and not the value of anything owned by it. Finally, he averred that the

allegations in the Amended Information are already subsumed under the Information for violationof Presidential Decree (P.D.) No. 401 filed and pending in the Metropolitan Trial Court of MakatiCity, docketed as Criminal Case No. 276766.The prosecution, through private complainant PLDT, opposed the motion,

14contending that the

movant unlawfully took personal property belonging to it, as follows: 1) intangible telephoneservices that are being offered by PLDT and other telecommunication companies, i.e., theconnection and interconnection to their telephone lines/facilities; 2) the use of those facilities overa period of time; and 3) the revenues derived in connection with the rendition of such servicesand the use of such facilities.

15

The prosecution asserted that the use of PLDTs intangible telephone services/facilities allowselectronic voice signals to pass through the same, and ultimately to the called partys 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 tosend various messages to installed recipients. The service rendered by PLDT is akin tomerchandise which has specific value, and therefore, capable of appropriation by another, as inthis case, through the ISR operations conducted by the movant and his co-accused.The prosecution further alleged that "international business calls and revenues constitutepersonal property envisaged in Article 308 of the Revised Penal Code." Moreover, the intangibletelephone services/facilities belong to PLDT and not to the movant and the other accused,because they have no telephone services and facilities of their own duly authorized by the NTC;thus, the taking by the movant and his co-accused of PLDT services was with intent to gain andwithout the latters consent.The prosecution pointed out that the accused, as well as the movant, were paid in exchange fortheir illegal appropriation and use of PLDTs telephone services and facilities; on the other hand,the accused did not pay a single centavo for their illegal ISR operations. Thus, the acts of theaccused were akin to the use of a "jumper" by a consumer to deflect the current from the house

electric meter, thereby enabling one to steal electricity. The prosecution emphasized that itsposition is fortified 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) whichwere issued on August 14, 2000 finding probable cause for theft against the respondents therein.On September 14, 2001, the RTC issued an Order

16denying the Motion to Quash the Amended

Information. The court declared that, although there is no law that expressly prohibits the use ofISR, the facts alleged in the Amended Information "will show how the alleged crime wascommitted by conducting ISR," to the damage and prejudice of PLDT.Laurel filed a Motion for Reconsideration

17of the Order, alleging that international long distance

calls are not personal property, and are not capable of appropriation. He maintained thatbusiness or revenue is not considered personal property, and that the prosecution failed toadduce proof of its existence and the subsequent loss of personal property belonging to another.Citing the ruling of the Court in United States v. De Guzman,

18Laurel averred that the case is not

one with telephone calls which originate with a particular caller and terminates with the calledparty. He insisted that telephone calls are considered privileged communications under theConstitution and cannot be considered as "the property of PLDT." He further argued that there isno kinship between telephone calls and electricity or gas, as the latter are forms of energy whichare generated and consumable, and may be considered as personal property because of suchcharacteristic. On the other hand, the movant argued, the telephone business is not a form ofenergy but is an activity.In its Order

19dated December 11, 2001, the RTC denied the movants 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


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facilities of PLDT formed part of its business. The RTC noted that the movant was charged withstealing the business of PLDT. To support its ruling, it cited Strochecker v. Ramirez,

20where the

Court ruled that interest in business is personal property capable of appropriation. It furtherdeclared that, through their ISR operations, the movant and his co-accused deprived PLDT offees for international long distance calls, and that the ISR used by the movant and his co-accusedwas 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 allegedthat the respondent judge gravely abused his discretion in denying his Motion to Quash theAmended Information.

21As gleaned from the material averments of the amended information, he

was charged with stealing the international long distance calls belonging to PLDT, not itsbusiness. Moreover, the RTC failed to distinguish between the business of PLDT (providingservices for international long distance calls) and the revenues derived therefrom. He opined thata "business" or its revenues cannot be considered as personal property under Article 308 of theRevised Penal Code, since a "business" is "(1) a commercial or mercantile activity customarilyengaged in as a means of livelihood and typically involving some independence of judgment andpower of decision; (2) a commercial or industrial enterprise; and (3) refers to transactions,dealings or intercourse of any nature." On the other hand, the term "revenue" is defined as "theincome that comes back from an investment (as in real or personal property); the annual orperiodical rents, profits, interests, or issues of any species of real or personal property."

22

Laurel further posited that an electric companys business is the production and distribution ofelectricity; a gas companys business is the production and/or distribution of gas (as fuel); while awater companys 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 theelectricity or gas which is alleged to be stolen and not the "business" of providing electricity orgas. However, since a telephone company does not produce any energy, goods or merchandiseand merely renders a service or, in the words of PLDT, "the connection and interconnection totheir telephone lines/facilities," such service cannot be the subject of theft as defined in Article308 of the Revised Penal 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,electricity or water, it would then be permissible to allege in the Information that it is the gasbusiness, the electric business or the water business which has been stolen, and no longer the

merchandise produced by such enterprise.24Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,

25where it was

ruled that the Revised Penal Code, legislated as it was before present technological advanceswere even conceived, is not adequate to address the novel means of "stealing" airwaves orairtime. In said 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 phonesand other forms of communications fraud. The said bill "aims to protect in number (ESN) (sic) orCapcode, mobile identification number (MIN), electronic-international mobile equipment identity(EMEI/IMEI), or subscriber identity module" and "any attempt to duplicate the data on anothercellular phone without the consent of a public telecommunications entity would be punishable bylaw."

26Thus, Laurel concluded, "there is no crime if there is no law punishing the crime."

On August 30, 2002, the CA rendered judgment dismissing the petition.27

The appellate courtruled that a petition for certiorari under Rule 65 of the Rules of Court was not the proper remedy

of the petitioner. On the merits of the petition, it held that while business is generally an activitywhich is abstract and intangible in form, it is nevertheless considered "property" under Article 308of the Revised Penal Code. The CA opined that PLDTs business of providing international callsis personal property which may be the object of theft, and cited United States v. Carlos

28to

support such conclusion. The tribunal also cited Strochecker v. Ramirez,29

where this Court ruledthat one-half interest in a days business is personal property under Section 2 of Act No. 3952,otherwise known as the Bulk Sales Law. The appellate court held that the operations of the ISRare not subsumed 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


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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" IS PERSONALPROPERTY WITHIN THE MEANING OF ART. 308 OF THE REVISED PENAL CODE.

30

Petitioner avers that the petition for a writ of certiorari may be filed to nullify an interlocutory orderof the 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 hispleadings filed before the CA. He further claims that while the right to carry on a business or aninterest or participation in business is considered property under the New Civil Code, the term"business," however, is not. He asserts that the Philippine Legislature, which approved theRevised Penal Code way back in January 1, 1932, could not have contemplated to includeinternational long distance calls and "business" as personal property under Article 308 thereof.In its comment on the petition, the Office of the Solicitor General (OSG) maintains that theamended information clearly states all the essential elements of the crime of theft. Petitionersinterpretation as to whether an "international long distance call" is personal property under thelaw is inconsequential, as a reading of the amended information readily reveals that specific actsand circumstances were alleged charging Baynet, through its officers, including petitioner, offeloniously taking, stealing and illegally using international long distance calls belonging torespondent PLDT by conducting ISR operations, thus, "routing and completing international longdistance calls using lines, cables, antenna and/or airwave frequency which connect directly to thelocal or domestic exchange facilities of the country where the call is destined." The OSGmaintains that the international long distance calls alleged in the amended information should beconstrued to mean "business" of PLDT, which, while abstract and intangible in form, is personalproperty susceptible of appropriation.

31The OSG avers that what was stolen by petitioner and his

co-accused is the business of PLDT providing international long distance calls which, thoughintangible, is personal property of the PLDT.

32

For its part, respondent PLDT asserts that personal property under Article 308 of the RevisedPenal Code comprehends intangible property such as electricity and gas which are valuablearticles for merchandise, brought and sold like other personal property, and are capable ofappropriation. It insists that the business of international calls and revenues constitute personalproperty because the same are valuable articles of merchandise. The respondent reiterates thatinternational calls involve (a) the intangible telephone services that are being offered by it, that is,the connection and interconnection to the telephone network, lines or facilities; (b) the use of its

telephone network, lines or facilities over a period of time; and (c) the income derived inconnection therewith.

33

PLDT further posits that business revenues or the income derived in connection with the renditionof such services and the use of its telephone network, lines or facilities are personal propertiesunder Article 308 of the Revised Penal Code; so is the use of said telephone services/telephonenetwork, lines or facilities which allow electronic voice signals to pass through the same andultimately to the called partys number. It is akin to electricity which, though intangible property,may nevertheless be appropriated and can be the object of theft. The use of respondent PLDTstelephone network, lines, or facilities over a period of time for consideration is the business that itprovides to its customers, which enables the latter to send various messages to intendedrecipients. Such use over a period of time is akin to merchandise which has value and, therefore,can be appropriated by another. According to respondent PLDT, this is what actually happenedwhen petitioner Laurel and the other accused 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 properremedy 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 forsuch calls, or, in short, PLDTs business of providing said telecommunication services, are propersubjects of theft under Article 308 of the Revised Penal Code; and (c) whether or not the trialcourt committed grave abuse of discretion amounting to excess or lack of jurisdiction in denyingthe motion 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, as


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amended, to nullify an order denying a motion to quash the Information is inappropriate becausethe aggrieved party has a remedy of appeal in the ordinary course of law. Appeal and certiorariare mutually exclusive of each other. The remedy of the aggrieved party is to continue with thecase in due course and, when an unfavorable judgment is rendered, assail the order and thedecision on appeal. However, if the trial court issues the order denying the motion to quash theAmended Information with grave abuse of discretion amounting to excess or lack of jurisdiction,

or if such order is patently erroneous, or null and void for being contrary to the Constitution, andthe remedy of appeal would not afford adequate and expeditious relief, the accused may resort tothe extraordinary remedy of certiorari.

35A special civil action for certiorari is also available where

there are special circumstances clearly demonstrating the inadequacy of an appeal. As this Courtheld in Bristol Myers 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 petitionand its annexes that: (a) the trial court issued the order with grave abuse of discretion amountingto lack of or in excess of jurisdiction; (b) appeal would not prove to be a speedy and adequateremedy; (c) where the order is a patent nullity; (d) the decision in the present case will arrestfuture 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 abuseof its discretion amounting to excess or lack of jurisdiction when it denied his motion to quash theAmended Information despite his claim that the material allegations in the Amended Informationdo not charge theft under Article 308 of the Revised Penal Code, or any offense for that matter.By so doing, the trial court deprived him of his constitutional right to be informed of the nature ofthe charge against him. He further averred that the order of the trial court is contrary to theconstitution and is, thus, null and void. He insists that he should not be compelled to undergo therigors and tribulations of 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 anoffense

38and must allege facts establishing conduct that a penal statute makes criminal;

39and

describes the property which is the subject of theft to advise the accused with reasonablecertainty of the accusation he is called upon to meet at the trial and to enable him to rely on thejudgment thereunder of a subsequent prosecution for the same offense.

40It must show, on its

face, that if the alleged facts are true, an offense has been committed. The rule is rooted on the

constitutional right of the accused to be informed of the nature of the crime or cause of theaccusation against him. He cannot be convicted of an offense even if proven unless it is allegedor necessarily included in the Information filed against him.As a general prerequisite, a motion to quash on the ground that the Information does notconstitute the offense charged, or any offense for that matter, should be resolved on the basis ofsaid allegations whose truth and veracity are hypothetically committed;

41and on additional facts

admitted or not denied by the prosecution.42

If the facts alleged in the Information do notconstitute 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 Article308 of the Revised Penal Code. It, thus, behooved the trial court to quash the AmendedInformation. The Order of the trial court denying the motion of the petitioner to quash theAmended Information is a patent nullity.

On the second issue, we find and so hold that the international telephone calls placed by BaySuper Orient Card holders, the telecommunication services provided by PLDT and its business ofproviding said services are not personal properties under Article 308 of the Revised Penal Code.The construction by the respondents of Article 308 of the said Code to include, within itscoverage, the aforesaid international telephone calls, telecommunication services and business iscontrary to the letter 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 isvested in Congress, not in the judicial department. It is Congress, not the Court, which is to definea crime, and ordain its punishment.

44Due respect for the prerogative of Congress in defining


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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 to language, legislative historyand purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.

45

However, when the congressional purpose is unclear, the court must apply the rule of lenity, thatis, ambiguity concerning 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

language used; and may not be held to include offenses other than those which are clearlydescribed, notwithstanding that the Court may think that Congress should have made them morecomprehensive.

47Words and phrases in a statute are to be construed according to their common

meaning and accepted usage.As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the principlethat a case which is within the reason ormischief of a statute is within its provision, so far as to punish a crime not enumerated in thestatute because it is of equal atrocity, or of kindred character with those which are enumerated.

48

When interpreting a criminal statute that does not explicitly reach the conduct in question, theCourt should not base an expansive reading on inferences from subjective and variableunderstanding.

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 latters consent.The provision was taken from Article 530 of the Spanish Penal Code which reads:1. Los que con nimo de lucrarse, y sin violencia o intimidacin en las personas ni fuerza en lascosas, toman las cosas muebles ajenas sin la voluntad de su dueo.

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 personalproperty 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 togain; and (d) the taking be accomplished without the use of violence or intimidation of person/s orforce upon things.

51

One is apt to conclude that "personal property" standing alone, covers both tangible and

intangible properties 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. The statutory 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, onlymovable properties which have physical or material existence and susceptible of occupation byanother are proper objects of theft.

52As 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 propertieswhich can be taken and carried from the place they are found are proper subjects of theft.Intangible properties such as rights and ideas are not subject of theft because the same cannotbe "taken" from the place it is found and is occupied or appropriated.Solamente las cosas muebles y corporales pueden ser objeto de hurto. La sustraccin 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 apropiacin. El Codigo emplea laexpresin "cosas mueble" en el sentido de cosa que es susceptible de ser llevada del lugardonde se encuentra, como dinero, joyas, ropas, etctera, asi que su concepto no coincide porcompleto con el formulado por el Codigo civil (arts. 335 y 336).

54

Thus, movable properties under Article 308 of the Revised Penal Code should be distinguishedfrom the rights or interests to which they relate. A naked right existing merely in contemplation oflaw, although it may be very valuable to the person who is entitled to exercise it, is not the subjectof theft or larceny.

55Such rights or interests are intangible and cannot be "taken" by another.

Thus, right to produce oil, good will or an interest in business, or the right to engage in business,credit or franchise are properties. So is the credit line represented by a credit card. However, they


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are not proper subjects of theft or larceny because they are without form or substance, the mere"breath" of the Congress. On the other hand, goods, wares and merchandise of businessmen andcredit cards issued to them are movable properties with physical and material existence and maybe taken by another; 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 the

dominion 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 owneror the lawful possessor thereof.

56It is not necessary that the property be actually carried away out

of the physical possession of the lawful possessor or that he should have made his escape withit.

57Neither asportation nor actual manual possession of property is required. Constructive

possession 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 offenders 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,animate or inanimate, with intent to gain. Intent to gain includes the unlawful taking of personalproperty for the purpose of deriving utility, satisfaction, enjoyment and pleasure.

60

We agree with the contention of the respondents that intangible properties such as electricalenergy and gas are proper subjects of theft. The reason for this is that, as explained by this Courtin United States v. Carlos61and United States v. Tambunting,62based on decisions of theSupreme Court of Spain and of the courts in England and the United States of America, gas orelectricity are capable of appropriation by another other than the owner. Gas and electricalenergy may be taken, carried away and appropriated. In People v. Menagas,

63the Illinois State

Supreme Court declared that electricity, like gas, may be seen and felt. Electricity, the same asgas, is a valuable article of merchandise, bought and sold like other personal property and iscapable of appropriation by another. It is a valuable article of merchandise, bought and sold likeother personal property, susceptible of being severed from a mass or larger quantity and of beingtransported from place to place. Electrical energy may, likewise, be taken and carried away. It is avaluable commodity, bought and sold like other personal property. It may be transported fromplace to place. There is nothing in the nature of gas used for illuminating purposes which rendersit incapable of being feloniously taken and carried away.In People ex rel Brush Electric Illuminating Co. v. Wemple,

64the Court of Appeals of New York

held that electric energy is manufactured and sold in determinate quantities at a fixed price,precisely as are coal, kerosene oil, and gas. It may be conveyed to the premises of theconsumer, stored in cells of different capacity known as an accumulator; or it may be sentthrough a wire, just as gas or oil may be transported either in a close tank or forced through apipe. Having reached the premises of the consumer, it may be used in any way he may desire,being, like illuminating gas, capable of being transformed either into heat, light, or power, at theoption of the purchaser. In Woods v. People,

65the Supreme Court of Illinois declared that there is

nothing in the nature of gas used for illuminating purposes which renders it incapable of beingfeloniously taken and carried away. It is a valuable article of merchandise, bought and sold likeother personal property, susceptible of being severed from a mass or larger quantity and of beingtransported 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 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.

66Business may also mean

employment, occupation or profession. Business is also defined as a commercial activity for gainbenefit or advantage.

67Business, like services in business, although are properties, are not

proper subjects of theft under the Revised Penal Code because the same cannot be "taken" or"occupied." If it were otherwise, as claimed by the respondents, there would be no juridicaldifference between the taking of the business of a person or the services provided by him forgain, vis--vis, the taking of goods, wares or merchandise, or equipment comprising hisbusiness.

68If it was its intention to include "business" as personal property under Article 308 of

the Revised Penal Code, the Philippine Legislature should have spoken in language that is clear


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and definite: that business is personal property 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 theAmended 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. Saidamount of 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 longdistance calls 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 contemplatedthe human voice which is converted into electronic impulses or electrical current which aretransmitted to the party called through the PSTN of respondent PLDT and the ISR of Baynet CardLtd. within its coverage. When the Revised Penal Code was approved, on December 8, 1930,international telephone calls and the transmission and routing of electronic voice signals orimpulses emanating from said calls, through the PSTN, IPL and ISR, were still non-existent. Caselaw is that, where a legislative history fails to evidence congressional awareness of the scope ofthe statute claimed by the respondents, a narrow interpretation of the law is more consistent withthe usual approach to the construction of the statute. Penal responsibility cannot be extendedbeyond the fair scope of the statutory 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. Thehuman voice and the electronic voice signals or current caused thereby are intangible and notsusceptible of possession, occupation or appropriation by the respondent PLDT or even thepetitioner, for that matter. PLDT merely transmits the electronic voice signals through its facilitiesand equipment. Baynet Card Ltd., through its operator, merely intercepts, reroutes the calls andpasses them to its toll center. Indeed, the parties called receive the telephone calls from Japan.In this modern age of technology, telecommunications systems have become so tightly mergedwith computer systems that it is difficult to know where one starts and the other finishes. Thetelephone set is highly computerized and allows computers to communicate across longdistances.

71The instrumentality at issue in this case is not merely a telephone but a telephone

inexplicably linked to a computerized communications system with the use of Baynet Cards soldby 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 forthe action of making a telephone system to do something that it normally should not allow by"making the phone company bend over and grab its ankles"). A "phreaker" is one who engages inthe act of manipulating phones and illegally markets telephone services.

73Unless the phone

company replaces all its hardware, phreaking would be impossible to stop. The phone companiesin North America were impelled to replace all their hardware and adopted full digital switchingsystem known as the Common Channel Inter Office Signaling. Phreaking occurred only duringthe 1960s and 1970s, 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 308of 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 some instances, it may include a sale. For instance, the sale of food by restaurants isusually referred to as "service," although an actual sale is involved.

74It may also mean the duty or

labor to be rendered by one person to another; performance of labor for the benefit of another.75

In the case of PLDT, it is to render local and international telecommunications services and suchother services as authorized by the CPCA issued by the NTC. Even at common law, neither timenor services may be taken and occupied or appropriated.

76A service is generally not considered

property and a theft of service would not, therefore, constitute theft since there can be no captionor asportation.

77Neither is the unauthorized use of the equipment and facilities of PLDT by the

petitioner theft under the aforequoted 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


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theft, it should have incorporated the same in Article 308 of the Revised Penal Code. TheLegislature did not. In fact, the Revised Penal Code does not even contain a definition ofservices.If taking of telecommunication services or the business of a person, is to be proscribed, it must beby special statute

79or 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 not contain any provisions penalizing the theft of services and passed laws definingand penalizing theft of telephone and computer services. The Pennsylvania Criminal Statute nowpenalizes theft of services, 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 withthe public 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 ofan electric, telephone or cable television system or to a television receiving set connected to acable television system, by making or maintaining any unauthorized modification or alteration toany device installed by a cable television system, or by false token or other trick or artifice toavoid payment for the service.In the State of Illinois in the United States of America, theft of labor or services or use of propertyis penalized:(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 suchuse is 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 withinthe traditional scope of the term "property" in ordinary theft statutes. Hence, they decided toincorporate in the Code Section 223.7, which defines and penalizes theft of services, thus:(1) A person is guilty of theft if he purposely obtains services which he knows are available onlyfor compensation, by deception or threat, or by false token or other means to avoid payment forthe service. "Services" include labor, professional service, transportation, telephone or otherpublic service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use

of vehicles or other movable property. Where compensation for service is ordinarily paidimmediately upon the rendering of such service, as in the case of hotels and restaurants, refusalto pay or absconding without payment or offer to pay gives rise to a presumption that the servicewas obtained by deception as to intention to pay; (2) A person commits theft if, having controlover the disposition of services of others, to which he is not entitled, he knowingly diverts suchservices to his own benefit or to the benefit of another not entitled thereto.Interestingly, after the State Supreme Court of Virginia promulgated its decision in Lund v.Commonwealth,

80declaring that neither time nor services may be taken and carried away and

are not proper subjects of larceny, the General Assembly of Virginia enacted Code No. 18-2-98which reads:Computer time or services or data processing services or information or data stored in connectiontherewith is hereby defined to be property which may be the subject of larceny under 18.2-95or 18.2-96, or embezzlement under 18.2-111, or false pretenses under 18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of Alabama of 1975 penalizestheft of services:"A person commits the crime of theft of services if: (a) He intentionally obtains services known byhim to be available only for compensation by deception, threat, false token or other means toavoid payment for the services "In the Philippines, Congress has not amended the Revised Penal Code to include theft ofservices or theft of business as felonies. Instead, it approved a law, Republic Act No. 8484,otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998. Underthe law, an access device means any card, plate, code, account number, electronic serialnumber, personal identification number and other telecommunication services, equipment or


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instrumentalities-identifier or other means of account access that can be used to obtain money,goods, services or any other thing of value or to initiate a transfer of funds other than a transferoriginated solely by paper instrument. Among the prohibited acts enumerated in Section 9 of thelaw are the acts of obtaining money or anything of value through the use of an access device,with intent to defraud or intent to gain and fleeing thereafter; and of effecting transactions withone or more access devices issued to another person or persons to receive payment or any other

thing of value. Under Section 11 of the law, conspiracy to commit access devices fraud is a crime.However, the petitioner is not charged of violation of R.A. 8484.Significantly, a prosecution under the law shall be without prejudice to any liability for violation ofany provisions of the Revised Penal Code inclusive of theft under Rule 308 of the Revised PenalCode and estafa under Article 315 of the Revised Penal Code. Thus, if an individual steals acredit card and uses the same to obtain services, he is liable of the following: theft of the creditcard under Article 308 of the Revised Penal Code; violation of Republic Act No. 8484; and estafaunder Article 315(2)(a) of the Revised Penal Code with the service provider as the privatecomplainant. The petitioner is not charged of estafa before the RTC in the Amended Information.Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000 provides:Sec. 33. Penalties.The following Acts shall be penalized by fine and/or imprisonment, asfollows:a) Hacking or cracking which refers to unauthorized access into or interference in a computersystem/server or information and communication system; or any access in order to corrupt, alter,steal, or destroy using a computer or other similar information and communication devices,without the knowledge and consent of the owner of the computer or information andcommunications system, including the introduction of computer viruses and the like, resulting onthe corruption, destruction, alteration, theft or loss of electronic data messages or electronicdocuments shall be punished by a minimum fine of One hundred thousand pesos (P100,000.00)and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6)months to three (3) years.IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of theRegional Trial Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE.The Regional Trial Court is directed to issue an order granting the motion of the petitioner toquash the Amended Information.SO ORDERED.ROMEO J. CALLEJO, SR.

Associate Justice


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EN BANC

LUIS MARCOS P. LAUREL, G.R. No. 155076Petitioner,

Present:

Puno, C.J.,Quisumbing,Ynares-Santiago,

Carpio,- versus - Austria-Martinez,

Corona,Carpio Morales,Azcuna,Tinga,Chico-Nazario,Velasco, Jr.,Nachura,Leonardo-De Castro, andBrion, JJ.

HON. ZEUS C. ABROGAR,Presiding Judge of the RegionalTrial Court, Makati City, Branch 150,PEOPLE OF THE PHILIPPINES Promulgated:& PHILIPPINE LONG DISTANCETELEPHONE COMPANY,

Respondents. January 13, 2009

x ---------------------------------------------------------------------------------------- x

RESOLUTION

YNARES-SANTIAGO, J.:

On February 27, 2006, this Courts First Division rendered judgment in this case as follows:

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

SO ORDERED.[if !supportFootnotes][1][endif]


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By way of brief background, petitioner is one of the accused in Criminal Case No. 99-

2425, filed with the Regional Trial Court of Makati City, Branch 150. The Amended Informationcharged the accused with theft under Article 308 of the Revised Penal Code, committed asfollows:

On or about September 10-19, 1999, or prior thereto in Makati City, and withinthe jurisdiction of this Honorable Court, the accused, conspiring andconfederating together and all of them mutually helping and aiding oneanother, 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 distancecalls belonging to PLDT by conducting International Simple Resale (ISR),which is a method of routing and completing international long distancecalls using lines, cables, antenae, and/or air wave frequency which connectdirectly to the local or domestic exchange facilities of the country where thecall is destined, effectively stealing this business from PLDT while using itsfacilities in the estimated amount of P20,370,651.92 to the damage andprejudice of PLDT, in the said amount.

CONTRARY TO LAW.[if !supportFootnotes][2][endif]

Petitioner filed a Motion to Quash (with Motion to Defer Arraignment), on the groundthat the factual allegations in the Amended Information do not constitute the felony of theft. Thetrial court denied the Motion to Quash the Amended Information, as well petitioners subsequentMotion for Reconsideration.

Petitioners special civil action for certiorari was dismissed by the Court ofAppeals. Thus, petitioner filed the instant petition for review with this Court.

In the above-quoted Decision, this Court held that the Amended Information does notcontain material allegations charging petitioner with theft of personal property since internationallong distance calls and the business of providing telecommunication or telephone services arenot personal properties under Article 308 of the Revised Penal Code.

Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion forReconsideration with Motion to Refer the Case to the Supreme Court En Banc. It maintains thatthe Amended Information charging petitioner with theft is valid and sufficient; that it states thenames of all the accused who were specifically charged with the crime of theft of PLDTsinternational calls and business of providing telecommunication or telephone service on or aboutSeptember 10 to 19, 1999 in Makati City by conducting ISR or International Simple Resale; that itidentifies the international calls and business of providing telecommunication or telephone serviceof PLDT as the personal properties which were unlawfully taken by the accused; and that it


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satisfies the test of sufficiency as it enabled a person of common understanding to know thecharge against him and the court to render judgment properly.

PLDT further insists that the Revised Penal Code should be interpreted in the contextof the Civil Codes definition of real and personal property. The enumeration of real properties inArticle 415 of the Civil Code is exclusive such that all those not included therein are personal

properties. Since Article 308 of the Revised Penal Code used the words personal propertywithout qualification, it follows that all personal properties as understood in the context of theCivil Code, may be the subject of theft under Article 308 of the Revised Penal Code. PLDTalleges that the international calls and business of providing telecommunication or telephoneservice are personal properties capable of appropriation and can be objects of theft.

PLDT also argues that taking in relation to theft under the Revised Penal Code doesnot require asportation, the sole requisite being that the object should be capable ofappropriation. The element of taking referred to in Article 308 of the Revised Penal Codemeans the act of depriving another of the possession and dominion of a movable coupled withthe intention, at the time of the taking, of withholding it with the character of permanency. Theremust be intent to appropriate, which means to deprive the lawful owner of the thing. Thus, theterm personal properties under Article 308 of the Revised Penal Code is not limited to onlypersonal properties which are susceptible of being severed from a mass or larger quantity and ofbeing transported from place to place.

PLDT likewise alleges that as early as the 1930s, international telephone calls were inexistence; hence, there is no basis for this Courts finding that the Legislature could not havecontemplated the theft of international telephone calls and the unlawful transmission and routingof electronic voice signals or impulses emanating from such calls by unlawfully tampering with thetelephone device as within the coverage of the Revised Penal Code.

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

In his Comment to PLDTs motion for reconsideration, petitioner Laurel claims that atelephone call is a conversation on the phone or a communication carried out using thetelephone. It is not synonymous to electric current or impulses. Hence, it may not be consideredas personal property susceptible of appropriation. Petitioner claims that the analogy betweengenerated electricity and telephone calls is misplaced. PLDT does not produce or generatetelephone calls. It only provides the facilities or services for the transmission and switching of thecalls. He also insists that business is not personal property. It is not the business that isprotected but the right to carry on a business. This right is what is considered asproperty. Since the services of PLDT cannot be considered as property, the same may not besubject of theft.

The Office of the Solicitor General (OSG) agrees with respondent PLDT that

international phone calls and the business or service of providing international phone calls aresubsumed in the enumeration and definition of personal property under the Civil Code hence,may be proper subjects of theft. It noted that the cases of United States v. Genato,

[if

!supportFootnotes][3][endif]United States v. Carlos

[if !supportFootnotes][4][endif]and United States v. Tambunting,

[if

!supportFootnotes][5][endif] which recognized intangible properties like gas and electricity as personal

properties, are deemed incorporated in our penal laws. Moreover, the theft provision in theRevised Penal Code was deliberately couched in broad terms precisely to be all-encompassingand embracing even such scenario that could not have been easily anticipated.

According to the OSG, prosecution under Republic Act (RA) No. 8484 or the Access


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Device Regulations Act of 1998and RA 8792 or the Electronic Commerce Act of 2000does notpreclude prosecution under the Revised Penal Code for the crime of theft. The latter embracesunauthorized appropriation or use of PLDTs international calls, service and business, forpersonal profit or gain, to the prejudice of PLDT as owner thereof. On the other hand, the speciallaws punish the surreptitious and advanced technical means employed to illegally obtain thesubject service and business. Even assuming that the correct indictment should have been

under RA 8484, the quashal of the information would still not be proper. The charge of theft asalleged in the Information should be taken in relation to RA 8484 because it is the elements, andnot the designation of the crime, that control.

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

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

Article 308 of the Revised Penal Code provides:

Art. 308. Who are liable for theft.Theft is committed by any person who, withintent to gain but without violence against, or intimidation of persons norforce upon things, shall take personal property of another without thelatters consent.

The elements of theft under Article 308 of the Revised Penal Code are as follows: (1)that there be taking of personal property; (2) that said property belongs to another; (3) that thetaking 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 ofpersons or force upon things.

Prior to the passage of the Revised Penal Code on December 8, 1930, the definition of theterm personal property in the penal code provision on theft had been established in Philippinejurisprudence. This Court, in United States v. Genato, United States v. Carlos, and United Statesv. Tambunting, consistently ruled that any personal property, tangible or intangible, corporeal orincorporeal, capable of appropriationcan be the object of theft.

Moreover, since the passage of the Revised Penal Code on December 8, 1930, the termpersonal property has had a generally accepted definition in civil law. In Article 335 of the Civil

Code of Spain, personal property is defined as anything susceptible of appropriation and notincluded in the foregoing chapter (not real property). Thus, the term personal property in theRevised Penal Code should be interpreted in the context of the Civil Code provisions inaccordance with the rule on statutory construction that where words have been long used in atechnical sense and have been judicially construed to have a certain meaning, and have beenadopted by the legislature as having a certain meaning prior to a particular statute, in which theyare used, the words used in such statute should be construed according to the sense in whichthey have been previously used.

[if !supportFootnotes][6][endif] In fact, this Court used the Civil Code

definition of personal property in interpreting the theft provision of the penal code in United


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States v. Carlos.

Cognizant of the definition given by jurisprudence and the Civil Code of Spain to the termpersonal property at the time the old Penal Code was being revised, still the legislature did notlimit or qualify the definition of personal property in the Revised Penal Code. Neither did itprovide a restrictive definition or an exclusive enumeration of personal property in the Revised

Penal Code, thereby showing its intent to retain for the term an extensive and unqualifiedinterpretation. Consequently, any property which is not included in the enumeration of realproperties under the Civil Code and capable of appropriation can be the subject of theft under theRevised Penal Code.

The only requirement for a personal property to be the object of theft under the penal codeis that it be capable of appropriation. It need not be capable of asportation, which is defined ascarrying away.

[if !supportFootnotes][7][endif] Jurisprudence is settled that to take under the theft

provision of the penal code does not require asportation or carrying away.[if !supportFootnotes][8][endif]

To appropriate means to deprive the lawful owner of the thing.[if !supportFootnotes][9][endif]

Theword take in the Revised Penal Code includes any act intended to transfer possession which, asheld in the assailed Decision, may be committed through the use of the offenders own hands, aswell as any mechanical device, such as an access device or card as in the instant case. Thisincludes controlling the destination of the property stolen to deprive the owner of the property,such as the use of a meter tampering, as held in Natividad v. Court of Appeals,

[if

!supportFootnotes][10][endif]use of a device to fraudulently obtain gas, as held in United States v.

Tambunting, and the use of a jumper to divert electricity, as held in the cases of United States v.Genato, United States v. Carlos, and United States v. Menagas.

[if !supportFootnotes][11][endif]

As illustrated in the above cases, appropriation of forces of nature which are brought undercontrol by science such as electrical energy can be achieved by tampering with any apparatusused for generating or measuring such forces of nature, wrongfully redirecting such forces ofnature from such apparatus, or using any device to fraudulently obtain such forces of nature. Inthe instant case, petitioner was charged with engaging in International Simple Resale (ISR) or theunauthorized routing and completing of international long distance calls using lines, cables,

antennae, and/or air wave frequency and connecting these calls directly to the local or domesticexchange facilities of the country where destined.

As early as 1910, the Court declared in Genatothat ownership over electricity (which aninternational long distance call consists of), as well as telephone service,is protected by theprovisions on theft of the Penal Code. The pertinent provision of the Revised Ordinance of theCity of Manila, which was involved in the said case, reads as follows:

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

meter, or other apparatus.


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20/84

In Strochecker v. Ramirez,

[if !supportFootnotes][12][endif]this Court stated:

With regard to the nature of the property thus mortgaged which is one-half interest in thebusiness above described, such interest is a personal property capable of appropriation and notincluded in the enumeration of real properties in article 335 of the Civil Code, and may be the

subject of mortgage.

Interest in business was not specifically enumerated as personal property in the Civil Codein force at the time the above decision was rendered. Yet, interest in business was declared tobe personal property since it is capable of appropriation and not included in the enumeration ofreal properties. Article 414 of the Civil Code provides that all things which are or may be theobject of appropriation are considered either real property or personal property. Business islikewise not enumerated as personal property under the Civil Code. Just like interest in business,however, it may be appropriated. Following the ruling in Strochecker v. Ramirez, business shouldalso be classified as personal property. Since it is not included in the exclusive enumeration ofreal properties under Article 415, it is therefore personal property.


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

A perusal of the records of this case readily reveals that petitioner and respondent PLDTextensively discussed the issue of ownership of telephone calls. The prosecution has taken theposition that said telephone calls belong to respondent PLDT. This is evident from its Commentwhere it defined the issue of this case as whether or not the unauthorized use or appropriation of

PLDT international telephone calls, service and facilities, for the purpose of generating personalprofit or gain that should have o therwise belonged to PLDT, constitutes theft.


In discussing the issue of ownership, petitioner and respondent PLDT gave their respectiveexplanations on how a telephone call is generated.

[if !supportFootnotes][15][endif] For its part, respondent

PLDT explains the process of generating a telephone call as follows:

38. The role of telecommunication companies is not limited to merely providing the medium(i.e. the electric current) through which the human voice/voice signal of the caller istransmitted. Before the human voice/voice signal can be so transmitted, a telecommunicationcompany, using its facilities, must first break down or decode the human voice/voice signal intoelectronic impulses and subject the same to further augmentation and enhancements. Only aftersuch process of conversion will the resulting electronic impulses be transmitted by a

telecommunication company, again, through the use of its facilities. Upon reaching thedestination of the call, the telecommunication company will again break down or decode theelectronic impulses back to human voice/voice signal before the called party receives thesame. In other words, a telecommunication company both converts/reconverts the humanvoice/voice signal and provides the medium for transmitting the same.


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39. Moreover, in the case of an international telephone call,once the electronic impulses originating from a foreign telecommunicationcompany country (i.e. Japan) reaches the Philippines through a localtelecommunication company (i.e. private respondent PLDT), it is the latterwhich decodes, augments and enhances the electronic impulses back tothe human voice/voice signal and provides the medium (i.e. electric current)

to enable the called party to receive the call. Thus, it is not true that theforeign telecommunication company provides (1) the electric current whichtransmits the human voice/voice signal of the caller and (2) the electriccurrent for the called party to receive said human voice/voice signal.

40. Thus, contrary to petitioner Laurels assertion, once theelectronic impulses or electric current originating from a foreigntelecommunication company (i.e. Japan) reaches private respondentPLDTs network, it is private respondent PLDT which decodes, augmentsand enhances the electronic impulses back to the human voice/voice signaland provides the medium (i.e. electric current) to enable the called party toreceive the call. Without private respondent PLDTs network, the humanvoice/voice signal of the calling party will never reach the called party.

[if

!supportFootnotes][16][endif]

In the assailed Decision, it was conceded that in making the international phone calls, thehuman voice is converted into electrical impulses or electric current which are transmitted to theparty called. A telephone call, therefore, is electrical energy. It was also held in the assailedDecision that intangible property such as electrical energy is capable of appropriation because itmay be taken and carried away. Electricity is personal property under Article 416 (3) of the CivilCode, which enumerates forces of nature which are brought under control by science.

[if

!supportFootnotes][17][endif]

Indeed, while it may be conceded that international long distance calls, the matter allegedto be stolen in the instant case, take the form of electrical energy, it cannot be said that suchinternational long distance calls were personal properties belonging to PLDT since the latter couldnot have acquired ownership over such calls. PLDT merely encodes, augments, enhances,decodes and transmits said calls using its complex communications infrastructure andfacilities. PLDT not being the owner of said telephone calls, then it could not validly claim thatsuch telephone calls were taken without its consent. It is the use of these communicationsfacilities without the consent of PLDT that constitutes the crime of theft, which is the unlawfultaking of the telephone services and business.


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Therefore, the business of providing telecommunication and the telephone service are

personal property under Article 308 of the Revised Penal Code, and the act of engaging in ISR isan act of subtraction penalized under said article. However, the Amended Informationdescribes the thing taken as, international long distance calls, and only later mentions stealingthe business from PLDT as the manner by which the gain was derived by the accused. In order

to correct this inaccuracy of description, this case must be remanded to the trial court and theprosecution directed to amend the Amended Information, to clearly state that the property subjectof the theft are the services and business of respondent PLDT. Parenthetically, this amendmentis not necessitated by a mistake in charging the proper offense, which would have called for thedismissal of the information under Rule 110, Section 14 and Rule 119, Section 19 of the RevisedRules on Criminal Procedure. To be sure, the crime is properly designated as one of theft. Thepurpose of the amendment is simply to ensure that the accused is fully and sufficiently apprisedof the nature and cause of the charge against him, and thus guaranteed of his rights under theConstitution.

ACCORDINGLY, the motion for reconsideration is GRANTED. The assailed Decision datedFebruary 27, 2006 is RECONSIDERED and SET ASIDE. The Decision of the Court of Appealsin CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar of the RegionalTrial Court of Makati City, Branch 150, which denied the Motion to Quash (With Motion to DeferArraignment) in Criminal Case No. 99-2425 for theft, is AFFIRMED. The case is remanded to thetrial court and the Public Prosecutor of Makati City is hereby DIRECTED to amend the AmendedInformation to show that the property subject of the theft were services and business of theprivate offended party.

SO ORDERED.


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ManilaEN BANCG.R. No. L-41643 July 31, 1935B.H. BERKENKOTTER,plaintiff-appellant,

vs.CU UNJIENG E HIJOS, YEK TONG LIN FIRE AND MARINE INSURANCE COMPANY,MABALACAT SUGAR COMPANY and THE PROVINCE SHERIFF OF PAMPANGA, defendants-appellees.Briones and Martinez for appellant.Araneta, Zaragoza and Araneta for appellees Cu Unjieng eHijos.

No appearance for the other appellees.VILLA-REAL, J .:This is an appeal taken by the plaintiff, B.H. Berkenkotter, from the judgment of the Court of FirstInstance of Manila, dismissing said plaintiff's complaint against Cu Unjiengs e Hijos et al., withcosts.In support of his appeal, the appellant assigns six alleged errors as committed by the trial court inits decision in question which will be discussed in the course of this decision.The first question to be decided in this appeal, which is raised in the first assignment of allegederror, is whether or not the lower court erred in declaring that the additional machinery andequipment, as improvement incorporated with the central are subject to the mortgage deedexecuted in favor of the defendants Cu Unjieng e Hijos.It is admitted by the parties that on April 26, 1926, the Mabalacat Sugar Co., Inc., owner of thesugar central situated in Mabalacat, Pampanga, obtained from the defendants, Cu Unjieng eHijos, a loan secured by a first mortgage constituted on two parcels and land "with all itsbuildings, improvements, sugar-cane mill, steel railway, telephone line, apparatus, utensils andwhatever forms part or is necessary complement of said sugar-cane mill, steel railway, telephoneline, now existing or that may in the future exist is said lots."On October 5, 1926, shortly after said mortgage had been constituted, the Mabalacat Sugar Co.,Inc., decided to increase the capacity of its sugar central by buying additional machinery andequipment, so that instead of milling 150 tons daily, it could produce 250. The estimated cost ofsaid additional machinery and equipment was approximately P100,000. In order to carry out thisplan, B.A. Green, president of said corporation, proposed to the plaintiff, B.H. Berkenkotter, to

advance the necessary amount for the purchase of said machinery and equipment, promising toreimburse him as soon as he could obtain an additional loan from the mortgagees, the hereindefendants Cu Unjieng e Hijos. Having agreed to said proposition made in a letter dated October5, 1926 (Exhibit E), B.H. Berkenkotter, on October 9th of the same year, delivered the sum ofP1,710 to B.A. Green, president of the Mabalacat Sugar Co., Inc., the total amount supplied byhim to said B.A. Green having been P25,750. Furthermore, B.H. Berkenkotter had a credit ofP22,000 against said corporation for unpaid salary. With the loan of P25,750 and said credit ofP22,000, the Mabalacat Sugar Co., Inc., purchased the additional machinery and equipment nowin litigation.On June 10, 1927, B.A. Green, president of the Mabalacat Sugar Co., Inc., applied to Cu Unjienge Hijos for an additional loan of P75,000 offering as security the additional machinery andequipment acquired by said B.A. Green and installed in the sugar central after the execution ofthe original mortgage deed, on April 27, 1927, together with whatever additional equipment

acquired with said loan. B.A. Green failed to obtain said loan.Article 1877 of the Civil Code provides as follows.ART. 1877. A mortgage includes all natural accessions, improvements, growing fruits, and rentsnot collected when the obligation falls due, and the amount of any indemnities paid or due theowner by the insurers of the mortgaged property or by virtue of the exercise of the power ofeminent domain, with the declarations, amplifications, and limitations established by law, whetherthe estate continues in the possession of the person who mortgaged it or whether it passes intothe hands of a third person.In the case of Bischoff vs. Pomar and Compaia General de Tabacos (12 Phil., 690), cited withapproval in the case of Cea vs. Villanueva(18 Phil., 538), this court laid shown the following


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doctrine:1. REALTY; MORTGAGE OF REAL ESTATE INCLUDES IMPROVEMENTS AND FIXTURES. It is a rule, established by the Civil Code and also by the Mortgage Law, with which the decisionsof the courts of the United States are in accord, that in a mortgage of real estate, theimprovements on the same are included; therefore, all objects permanently attached to amortgaged building or land, although they may have been placed there after the mortgage was

constituted, are also included. (Arts. 110 and 111 of the Mortgage Law, and 1877 of the CivilCode; decision of U.S. Supreme Court in the matter of Royal Insurance Co. vs. R. Miller,liquidator, and Amadeo [26 Sup. Ct. Rep., 46; 199 U.S., 353].)2. ID.; ID.; INCLUSION OR EXCLUSION OF MACHINERY, ETC. In order that it may beunderstood that the machinery and other objects placed upon and used in connection with amortgaged estate are excluded from the mortgage, when it was stated in the mortgage that theimprovements, buildings, and machinery that existed thereon were also comprehended, it isindispensable that the exclusion thereof be stipulated between the contracting parties.The appellant contends that the installation of the machinery and equipment claimed by him inthe sugar central of the Mabalacat Sugar Company, Inc., was not permanent in characterinasmuch as B.A. Green, in proposing to him to advance the money for the purchase thereof,made it appear in the letter, Exhibit E, that in case B.A. Green should fail to obtain an additionalloan from the defendants Cu Unjieng e Hijos, said machinery and equipment would becomesecurity therefor, said B.A. Green binding himself not to mortgage nor encumber them to anybodyuntil said plaintiff be fully reimbursed for the corporation's indebtedness to him.Upon acquiring the machinery and equipment in question with money obtained as loan from theplaintiff-appellant by B.A. Green, as president of the Mabalacat Sugar Co., Inc., the latter becameowner of said machinery and equipment, otherwise B.A. Green, as such president, could nothave offered them to the plaintiff as security for the payment of his credit.Article 334, paragraph 5, of the Civil Code gives the character of real property to "machinery,liquid containers, instruments or implements intended by the owner of any building or land for usein connection with any industry or trade being carried on therein and which are expressly adaptedto meet the requirements of such trade or industry.If the installation of the machinery and equipment in question in the central of the MabalacatSugar Co., Inc., in lieu of the other of less capacity existing therein, for its sugar industry,converted them into real property by reason of their purpose, it cannot be said that theirincorporation therewith was not permanent in character because, as essential and principal

elements of a sugar central, without them the sugar central would be unable to function or carryon the industrial purpose for which it was established. Inasmuch as the central is permanent incharacter, the necessary machinery and equipment installed for carrying on the sugar industry forwhich it has been established must necessarily be permanent.Furthermore, the fact that B.A. Green bound himself to the plaintiff B.H. Berkenkotter to hold saidmachinery and equipment as security for the payment of the latter's credit and to refrain frommortgaging or otherwise encumbering them until Berkenkotter has been fully reimbursed therefor,is not incompatible with the permanent character of the incorporation of said machinery andequipment with the sugar central of the Mabalacat Sugar Co., Inc., as nothing could prevent B.A.Green from giving them as security at least under a second mortgage.As to the alleged sale of said machinery and equipment to the plaintiff and appellant after theyhad been permanently incorporated with sugar central of the Mabalacat Sugar Co., Inc., andwhile the mortgage constituted on said sugar central to Cu Unjieng e Hijos remained in force, only

the right of redemption of the vendor Mabalacat Sugar Co., Inc., in the sugar central with whichsaid machinery and equipment had been incorporated, was transferred thereby, subject to theright of the defendants Cu Unjieng e Hijos under the first mortgage.For the foregoing considerations, we are of the opinion and so hold: (1) That the installation of amachinery and equipment in a mortgaged sugar central, in lieu of another of less capacity, for thepurpose of carrying out the industrial functions of the latter and increasing production, constitutesa permanent improvement on said sugar central and subjects said machinery and equipment tothe mortgage constituted thereon (article 1877, Civil Code); (2) that the fact that the purchaser ofthe new machinery and equipment has bound himself to the person supplying him the purchasemoney to hold them as security for the payment of the latter's credit, and to refrain from


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mortgaging or otherwise encumbering them does not alter the

property cases (full) compiled

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