G. R. No.

160188 | June 21, 2007 Petitioner and Calderon were first brought to the SM security office
before they were transferred on the same day to the Baler Station II
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner, of the Philippine National Police, Quezon City, for investigation. It
vs. appears from the police investigation records that apart from
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS petitioner and Calderon, four (4) other persons were apprehended by
NACHURA, respondents. the security guards at the scene and delivered to police custody at the
Baler PNP Station in connection with the incident. However, after the
matter was referred to the Office of the Quezon City Prosecutor, only
DECISION
petitioner and Calderon were charged with theft by the Assistant City
Prosecutor, in Informations prepared on 20 May 1994, the day after
TINGA, J.: the incident.10

This case aims for prime space in the firmament of our criminal law After pleading not guilty on arraignment, at the trial, petitioner and
jurisprudence. Petitioner effectively concedes having performed the Calderon both claimed having been innocent bystanders within the
felonious acts imputed against him, but instead insists that as a result, vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
he should be adjudged guilty of frustrated theft only, not the felony they were haled by Lago and his fellow security guards after a
in its consummated stage of which he was convicted. The proposition commotion and brought to the Baler PNP Station. Calderon alleged
rests on a common theory expounded in two well-known that on the afternoon of the incident, he was at the Super Sale Club
decisions1 rendered decades ago by the Court of Appeals, upholding to withdraw from his ATM account, accompanied by his neighbor,
the existence of frustrated theft of which the accused in both cases Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and
were found guilty. However, the rationale behind the rulings has Rosulada decided to buy snacks inside the supermarket. It was while
never been affirmed by this Court. they were eating that they heard the gunshot fired by Lago, leading
them to head out of the building to check what was
As far as can be told,2 the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft transpiring. As they were outside, they were suddenly "grabbed" by a
was in 1918, in People v. Adiao.3 A more cursory security guard, thus commencing their detention.12 Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio
treatment of the question was followed in 1929, in People v. Valenzuela,13 had been at the parking lot, walking beside the nearby
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives BLISS complex and headed to ride a tricycle going to Pag-asa, when
occasion for us to finally and fully measure if or how frustrated theft they saw the security guard Lago fire a shot. The gunshot caused him
is susceptible to commission under the Revised Penal Code. and the other people at the scene to start running, at which point he
was apprehended by Lago and brought to the security office.
I. Petitioner claimed he was detained at the security office until around
9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the
The basic facts are no longer disputed before us. The case stems from cartons of detergent, but he was detained overnight, and eventually
an Information6 charging petitioner Aristotel Valenzuela (petitioner) brought to the prosecutor’s office where he was charged with
and Jovy Calderon (Calderon) with the crime of theft. On 19 May theft.14 During petitioner’s cross-examination, he admitted that he
1994, at around 4:30 p.m., petitioner and Calderon were sighted had been employed as a "bundler" of GMS Marketing, "assigned at
outside the Super Sale Club, a supermarket within the ShoeMart (SM) the supermarket" though not at SM.15
complex along North EDSA, by Lorenzo Lago (Lago), a security guard
who was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an identification In a Decision16 promulgated on 1 February 2000, the Regional Trial
card with the mark "Receiving Dispatching Unit (RDU)," hauling a push Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
cart with cases of detergent of the well-known "Tide" brand. Calderon of the crime of consummated theft. They were sentenced
Petitioner unloaded these cases in an open parking space, where to an indeterminate prison term of two (2) years of prision
Calderon was waiting. Petitioner then returned inside the correccional as minimum to seven (7) years of prision mayor as
supermarket, and after five (5) minutes, emerged with more cartons maximum.17 The RTC found credible the testimonies of the
of Tide Ultramatic and again unloaded these boxes to the same area prosecution witnesses and established the convictions on the positive
in the open parking space.7 identification of the accused as perpetrators of the crime.

Thereafter, petitioner left the parking area and haled a taxi. He Both accused filed their respective Notices of Appeal,18 but only
boarded the cab and directed it towards the parking space where petitioner filed a brief19 with the Court of Appeals, causing the
Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic appellate court to deem Calderon’s appeal as abandoned and
inside the taxi, then boarded the vehicle. All these acts were eyed by consequently dismissed. Before the Court of Appeals, petitioner
Lago, who proceeded to stop the taxi as it was leaving the open argued that he should only be convicted of frustrated theft since at
parking area. When Lago asked petitioner for a receipt of the the time he was apprehended, he was never placed in a position to
merchandise, petitioner and Calderon reacted by fleeing on foot, but freely dispose of the articles stolen.20 However, in its Decision dated
Lago fired a warning shot to alert his fellow security guards of the 19 June 2003,21 the Court of Appeals rejected this contention and
incident. Petitioner and Calderon were apprehended at the scene, affirmed petitioner’s conviction.22 Hence the present Petition for
and the stolen merchandise recovered.8 The filched items seized from Review,23 which expressly seeks that petitioner’s conviction "be
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra modified to only of Frustrated Theft."24
25 grams, and three (3) additional cases of detergent, the goods with
an aggregate value of ₱12,090.00.9 Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the
theft of several cases of detergent with a total value of ₱12,090.00 of should produce the felony by reason of some cause or accident other
which he was charged.25 As such, there is no cause for the Court to than his own spontaneous desistance."
consider a factual scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court of Appeals. The Each felony under the Revised Penal Code has a "subjective phase,"
only question to consider is whether under the given facts, the theft or that portion of the acts constituting the crime included between
should be deemed as consummated or merely frustrated. the act which begins the commission of the crime and the last act
performed by the offender which, with prior acts, should result in the
II. consummated crime.31 After that point has been breached, the
subjective phase ends and the objective phase begins. 32 It has been
In arguing that he should only be convicted of frustrated theft, held that if the offender never passes the subjective phase of the
petitioner cites26 two decisions rendered many years ago by the Court offense, the crime is merely attempted.33 On the other hand, the
of Appeals: People v. Diño27 and People v. Flores.28 Both decisions subjective phase is completely passed in case of frustrated crimes, for
elicit the interest of this Court, as they modified trial court convictions in such instances, "[s]ubjectively the crime is complete." 34
from consummated to frustrated theft and involve a factual milieu
that bears similarity to the present case. Petitioner invoked the same Truly, an easy distinction lies between consummated and frustrated
rulings in his appeal to the Court of Appeals, yet the appellate court felonies on one hand, and attempted felonies on the other. So long
did not expressly consider the import of the rulings when it affirmed as the offender fails to complete all the acts of execution despite
the conviction. commencing the commission of a felony, the crime is undoubtedly in
the attempted stage. Since the specific acts of execution that define
It is not necessary to fault the Court of Appeals for giving short shrift each crime under the Revised Penal Code are generally enumerated
to the Diño and Flores rulings since they have not yet been expressly in the code itself, the task of ascertaining whether a crime is
adopted as precedents by this Court. For whatever reasons, attempted only would need to compare the acts actually performed
by the accused as against the acts that constitute the felony under the
Revised Penal Code.
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Diño and
Flores have attained a level of renown reached by very few other In contrast, the determination of whether a crime is frustrated or
appellate court rulings. They are comprehensively discussed in the consummated necessitates an initial concession that all of the acts of
most popular of our criminal law annotations, 29 and studied in execution have been performed by the offender. The critical
criminal law classes as textbook examples of frustrated crimes or distinction instead is whether the felony itself was actually produced
even as definitive of frustrated theft. by the acts of execution. The determination of whether the felony
was "produced" after all the acts of execution had been performed
hinges on the particular statutory definition of the felony. It is the
More critically, the factual milieu in those cases is hardly akin to the
statutory definition that generally furnishes the elements of each
fanciful scenarios that populate criminal law exams more than they
crime under the Revised Penal Code, while the elements in turn
actually occur in real life. Indeed, if we finally say that Diño and Flores
unravel the particular requisite acts of execution and accompanying
are doctrinal, such conclusion could profoundly influence a multitude
criminal intent.
of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen
property through a supervised egress, such as a supermarket The long-standing Latin maxim "actus non facit reum, nisi mens sit
checkout counter or a parking area pay booth, may easily call for the rea" supplies an important characteristic of a crime, that "ordinarily,
application of Diño and Flores. The fact that lower courts have not evil intent must unite with an unlawful act for there to be a crime,"
hesitated to lay down convictions for frustrated theft further and accordingly, there can be no crime when the criminal mind is
validates that Diño and Flores and the theories offered therein on wanting.35 Accepted in this jurisdiction as material in crimes mala in
frustrated theft have borne some weight in our jurisprudential se,36 mens rea has been defined before as "a guilty mind, a guilty or
system. The time is thus ripe for us to examine whether those wrongful purpose or criminal intent,"37 and "essential for criminal
theories are correct and should continue to influence prosecutors and liability."38 It follows that the statutory definition of our mala in se
judges in the future. crimes must be able to supply what the mens rea of the crime is, and
indeed the U.S. Supreme Court has comfortably held that "a criminal
law that contains no mens rea requirement infringes on
III.
constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to
To delve into any extended analysis of Diño and Flores, as well as the exist in our legal law, it is not enough that mens rea be shown; there
specific issues relative to "frustrated theft," it is necessary to first must also be an actus reus.40
refer to the basic rules on the three stages of crimes under our
Revised Penal Code.30
It is from the actus reus and the mens rea, as they find expression in
the criminal statute, that the felony is produced. As a postulate in the
Article 6 defines those three stages, namely the consummated, craftsmanship of constitutionally sound laws, it is extremely
frustrated and attempted felonies. A felony is consummated "when preferable that the language of the law expressly provide when the
all the elements necessary for its execution and accomplishment are felony is produced. Without such provision, disputes would inevitably
present." It is frustrated "when the offender performs all the acts of ensue on the elemental question whether or not a crime was
execution which would produce the felony as a consequence but committed, thereby presaging the undesirable and legally dubious
which, nevertheless, do not produce it by reason of causes set-up under which the judiciary is assigned the legislative role of
independent of the will of the perpetrator." Finally, it is attempted defining crimes. Fortunately, our Revised Penal Code does not suffer
"when the offender commences the commission of a felony directly from such infirmity. From the statutory definition of any felony, a
by overt acts, and does not perform all the acts of execution which decisive passage or term is embedded which attests when the felony
is produced by the acts of execution. For example, the statutory In Spanish law, animo lucrandi was compounded with
definition of murder or homicide expressly uses the phrase "shall kill apoderamiento, or "unlawful taking," to characterize theft. Justice
another," thus making it clear that the felony is produced by the death Regalado notes that the concept of apoderamiento once had a
of the victim, and conversely, it is not produced if the victim survives. controversial interpretation and application. Spanish law had already
discounted the belief that mere physical taking was constitutive of
We next turn to the statutory definition of theft. Under Article 308 of apoderamiento, finding that it had to be coupled with "the intent to
the Revised Penal Code, its elements are spelled out as follows: appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the
thing."47 However, a conflicting line of cases decided by the Court of
Art. 308. Who are liable for theft.— Theft is committed by any person
Appeals ruled, alternatively, that there must be permanency in the
who, with intent to gain but without violence against or intimidation
taking48 or an intent to permanently deprive the owner of the stolen
of persons nor force upon things, shall take personal property of
property;49 or that there was no need for permanency in the taking
another without the latter’s consent.
or in its intent, as the mere temporary possession by the offender or
disturbance of the proprietary rights of the owner already constituted
Theft is likewise committed by: apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to
1. Any person who, having found lost property, shall fail to deliver the permanently deprive the owner of his property to constitute an
same to the local authorities or to its owner; unlawful taking.51

2. Any person who, after having maliciously damaged the property of So long as the "descriptive" circumstances that qualify the taking are
another, shall remove or make use of the fruits or object of the present, including animo lucrandi and apoderamiento, the
damage caused by him; and completion of the operative act that is the taking of personal property
of another establishes, at least, that the transgression went beyond
3. Any person who shall enter an inclosed estate or a field where the attempted stage. As applied to the present case, the moment
trespass is forbidden or which belongs to another and without the petitioner obtained physical possession of the cases of detergent and
consent of its owner, shall hunt or fish upon the same or shall gather loaded them in the pushcart, such seizure motivated by intent to gain,
cereals, or other forest or farm products. completed without need to inflict violence or intimidation against
persons nor force upon things, and accomplished without the consent
of the SM Super Sales Club, petitioner forfeited the extenuating
Article 308 provides for a general definition of theft, and three benefit a conviction for only attempted theft would have afforded
alternative and highly idiosyncratic means by which theft may be him.
committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the
prosecution of the accused was undertaken and sustained. On the On the critical question of whether it was consummated or frustrated
face of the definition, there is only one operative act of execution by theft, we are obliged to apply Article 6 of the Revised Penal Code to
the actor involved in theft ─ the taking of personal property of ascertain the answer. Following that provision, the theft would have
another. It is also clear from the provision that in order that such been frustrated only, once the acts committed by petitioner, if
taking may be qualified as theft, there must further be present the ordinarily sufficient to produce theft as a consequence, "do not
descriptive circumstances that the taking was with intent to gain; produce [such theft] by reason of causes independent of the will of
without force upon things or violence against or intimidation of the perpetrator." There are clearly two determinative factors to
persons; and it was without the consent of the owner of the property. consider: that the felony is not "produced," and that such failure is
due to causes independent of the will of the perpetrator. The second
factor ultimately depends on the evidence at hand in each particular
Indeed, we have long recognized the following elements of theft as case. The first, however, relies primarily on a doctrinal definition
provided for in Article 308 of the Revised Penal Code, namely: (1) that attaching to the individual felonies in the Revised Penal Code 52 as to
there be taking of personal property; (2) that said property belongs when a particular felony is "not produced," despite the commission
to another; (3) that the taking be done with intent to gain; (4) that the of all the acts of execution.
taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or
intimidation of persons or force upon things.42 So, in order to ascertain whether the theft is consummated or
frustrated, it is necessary to inquire as to how exactly is the felony of
theft "produced." Parsing through the statutory definition of theft
In his commentaries, Judge Guevarra traces the history of the under Article 308, there is one apparent answer provided in the
definition of theft, which under early Roman law as defined by Gaius, language of the law — that theft is already "produced" upon the
was so broad enough as to encompass "any kind of physical handling "tak[ing of] personal property of another without the latter’s
of property belonging to another against the will of the owner," 43 a consent."
definition similar to that by Paulus that a thief "handles (touches,
moves) the property of another."44 However, with the Institutes of
Justinian, the idea had taken hold that more than mere physical U.S. v. Adiao53 apparently supports that notion. Therein, a customs
handling, there must further be an intent of acquiring gain from the inspector was charged with theft after he abstracted a leather belt
object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi from the baggage of a foreign national and secreted the item in his
causa vel ipsius rei, vel etiam usus ejus possessinisve." 45 This desk at the Custom House. At no time was the accused able to "get
requirement of animo lucrandi, or intent to gain, was maintained in the merchandise out of the Custom House," and it appears that he
both the Spanish and Filipino penal laws, even as it has since been "was under observation during the entire transaction." 54 Based
abandoned in Great Britain.46 apparently on those two circumstances, the trial court had found him
guilty, instead, of frustrated theft. The Court reversed, saying that
neither circumstance was decisive, and holding instead that the
accused was guilty of consummated theft, finding that "all the let go of the defendant, who was afterwards caught by a
elements of the completed crime of theft are present." 55 In support policeman."58 In rejecting the contention that only frustrated theft
of its conclusion that the theft was consummated, the Court cited was established, the Court simply said, without further comment or
three (3) decisions of the Supreme Court of Spain, the discussion of elaboration:
which we replicate below:
We believe that such a contention is groundless. The [accused]
The defendant was charged with the theft of some fruit from the land succeeded in taking the pocket-book, and that determines the crime
of another. As he was in the act of taking the fruit[,] he was seen by a of theft. If the pocket-book was afterwards recovered, such recovery
policeman, yet it did not appear that he was at that moment caught does not affect the [accused’s] criminal liability, which arose from the
by the policeman but sometime later. The court said: "[x x x] The trial [accused] having succeeded in taking the pocket-book.59
court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing If anything, Sobrevilla is consistent with Adiao and the Spanish
appears in the record showing that the policemen who saw the Supreme Court cases cited in the latter, in that the fact that the
accused take the fruit from the adjoining land arrested him in the act offender was able to succeed in obtaining physical possession of the
and thus prevented him from taking full possession of the thing stolen stolen item, no matter how momentary, was able to consummate the
and even its utilization by him for an interval of time." (Decision of the theft.
Supreme Court of Spain, October 14, 1898.)
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
Defendant picked the pocket of the offended party while the latter therein contradict the position of petitioner in this case. Yet to simply
was hearing mass in a church. The latter on account of the solemnity affirm without further comment would be disingenuous, as there is
of the act, although noticing the theft, did not do anything to prevent another school of thought on when theft is consummated, as
it. Subsequently, however, while the defendant was still inside the reflected in the Diño and Flores decisions.
church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of
Diño was decided by the Court of Appeals in 1949, some 31 years after
execution and considered the theft as consummated. (Decision of the
Adiao and 15 years before Flores. The accused therein, a driver
Supreme Court of Spain, December 1, 1897.)
employed by the United States Army, had driven his truck into the
port area of the South Harbor, to unload a truckload of materials to
The defendant penetrated into a room of a certain house and by waiting U.S. Army personnel. After he had finished unloading,
means of a key opened up a case, and from the case took a small box, accused drove away his truck from the Port, but as he was
which was also opened with a key, from which in turn he took a purse approaching a checkpoint of the Military Police, he was stopped by an
containing 461 reales and 20 centimos, and then he placed the money M.P. who inspected the truck and found therein three boxes of army
over the cover of the case; just at this moment he was caught by two rifles. The accused later contended that he had been stopped by four
guards who were stationed in another room near-by. The court men who had loaded the boxes with the agreement that they were to
considered this as consummated robbery, and said: "[x x x] The meet him and retrieve the rifles after he had passed the checkpoint.
accused [x x x] having materially taken possession of the money from The trial court convicted accused of consummated theft, but the
the moment he took it from the place where it had been, and having Court of Appeals modified the conviction, holding instead that only
taken it with his hands with intent to appropriate the same, he frustrated theft had been committed.
executed all the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing having been
In doing so, the appellate court pointed out that the evident intent of
frustrated, which, however, does not go to make the elements of the
the accused was to let the boxes of rifles "pass through the
consummated crime." (Decision of the Supreme Court of Spain, June
checkpoint, perhaps in the belief that as the truck had already
13, 1882.)56
unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or
It is clear from the facts of Adiao itself, and the three (3) Spanish checking."60 This point was deemed material and indicative that the
decisions cited therein, that the criminal actors in all these cases had theft had not been fully produced, for the Court of Appeals
been able to obtain full possession of the personal property prior to pronounced that "the fact determinative of consummation is the
their apprehension. The interval between the commission of the acts ability of the thief to dispose freely of the articles stolen, even if it
of theft and the apprehension of the thieves did vary, from were more or less momentary."61 Support for this proposition was
"sometime later" in the 1898 decision; to the very moment the thief drawn from a decision of the Supreme Court of Spain dated 24
had just extracted the money in a purse which had been stored as it January 1888 (1888 decision), which was quoted as follows:
was in the 1882 decision; and before the thief had been able to spirit
the item stolen from the building where the theft took place, as had
Considerando que para que el apoderamiento de la cosa sustraida sea
happened in Adiao and the 1897 decision. Still, such intervals proved
determinate de la consumacion del delito de hurto es preciso que so
of no consequence in those cases, as it was ruled that the thefts in
haga en circunstancias tales que permitan al sustractor la libre
each of those cases was consummated by the actual possession of the
disposicion de aquella, siquiera sea mas o menos
property belonging to another.
momentaneamente, pues de otra suerte, dado el concepto del delito
de hurto, no puede decirse en realidad que se haya producido en toda
In 1929, the Court was again confronted by a claim that an accused su extension, sin materializar demasiado el acto de tomar la cosa
was guilty only of frustrated rather than consummated theft. The case ajena.62
is People v. Sobrevilla,57 where the accused, while in the midst of a
crowd in a public market, was already able to abstract a pocketbook
Integrating these considerations, the Court of Appeals then
from the trousers of the victim when the latter, perceiving the theft,
concluded:
"caught hold of the [accused]’s shirt-front, at the same time shouting
for a policeman; after a struggle, he recovered his pocket-book and
This court is of the opinion that in the case at bar, in order to make cases were retrieved from the actor before they could be physically
the booty subject to the control and disposal of the culprits, the extracted from the guarded compounds from which the items were
articles stolen must first be passed through the M.P. check point, but filched. However, as implied in Flores, the character of the item stolen
since the offense was opportunely discovered and the articles seized could lead to a different conclusion as to whether there could have
after all the acts of execution had been performed, but before the been "free disposition," as in the case where the chattel involved was
loot came under the final control and disposal of the looters, the of "much less bulk and more common x x x, [such] as money x x x." 68
offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense In his commentaries, Chief Justice Aquino makes the following
committed, therefore, is that of frustrated theft.63 pointed observation on the import of the Diño ruling:

Diño thus laid down the theory that the ability of the actor to freely There is a ruling of the Court of Appeals that theft is consummated
dispose of the items stolen at the time of apprehension is when the thief is able to freely dispose of the stolen articles even if it
determinative as to whether the theft is consummated or frustrated. were more or less momentary. Or as stated in another case[69 ], theft
This theory was applied again by the Court of Appeals some 15 years is consummated upon the voluntary and malicious taking of property
later, in Flores, a case which according to the division of the court that belonging to another which is realized by the material occupation of
decided it, bore "no substantial variance between the circumstances the thing whereby the thief places it under his control and in such a
[herein] and in [Diño]."64 Such conclusion is borne out by the facts in situation that he could dispose of it at once. This ruling seems to have
Flores. The accused therein, a checker employed by the Luzon been based on Viada’s opinion that in order the theft may be
Stevedoring Company, issued a delivery receipt for one empty sea van consummated, "es preciso que se haga en circumstancias x x x [70 ]"71
to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck
In the same commentaries, Chief Justice Aquino, concluding from
driver proceeded to show the delivery receipt to the guard on duty at
Adiao and other cases, also states that "[i]n theft or robbery the crime
the gate of the terminal. However, the guards insisted on inspecting
is consummated after the accused had material possession of the
the van, and discovered that the "empty" sea van had actually
thing with intent to appropriate the same, although his act of making
contained other merchandise as well.65 The accused was prosecuted
use of the thing was frustrated."72
for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals,
accused argued in the alternative that he was guilty only of attempted There are at least two other Court of Appeals rulings that are at
theft, but the appellate court pointed out that there was no seeming variance with the Diño and Flores rulings. People v.
intervening act of spontaneous desistance on the part of the accused Batoon73 involved an accused who filled a container with gasoline
that "literally frustrated the theft." However, the Court of Appeals, from a petrol pump within view of a police detective, who followed
explicitly relying on Diño, did find that the accused was guilty only of the accused onto a passenger truck where the arrest was made. While
frustrated, and not consummated, theft. the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that "[t]he facts of the cases of
As noted earlier, the appellate court admitted it found "no substantial
U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual
variance" between Diño and Flores then before it. The prosecution
taking with intent to gain is enough to consummate the crime of
in Flores had sought to distinguish that case from Diño, citing a
theft."74
"traditional ruling" which unfortunately was not identified in the
decision itself. However, the Court of Appeals pointed out that the
said "traditional ruling" was qualified by the words "is placed in a In People v. Espiritu,75 the accused had removed nine pieces of
situation where [the actor] could dispose of its contents at hospital linen from a supply depot and loaded them onto a truck.
once."66 Pouncing on this qualification, the appellate court noted that However, as the truck passed through the checkpoint, the stolen
"[o]bviously, while the truck and the van were still within the items were discovered by the Military Police running the checkpoint.
compound, the petitioner could not have disposed of the goods ‘at Even though those facts clearly admit to similarity with those in Diño,
once’." At the same time, the Court of Appeals conceded that "[t]his the Court of Appeals held that the accused were guilty of
is entirely different from the case where a much less bulk and more consummated theft, as the accused "were able to take or get hold of
common thing as money was the object of the crime, where freedom the hospital linen and that the only thing that was frustrated, which
to dispose of or make use of it is palpably less restricted," 67 though no does not constitute any element of theft, is the use or benefit that the
further qualification was offered what the effect would have been thieves expected from the commission of the offense." 76
had that alternative circumstance been present instead.
In pointing out the distinction between Diño and Espiritu, Reyes wryly
Synthesis of the Diño and Flores rulings is in order. The determinative observes that "[w]hen the meaning of an element of a felony is
characteristic as to whether the crime of theft was produced is the controversial, there is bound to arise different rulings as to the stage
ability of the actor "to freely dispose of the articles stolen, even if it of execution of that felony."77 Indeed, we can discern from this survey
were only momentary." Such conclusion was drawn from an 1888 of jurisprudence that the state of the law insofar as frustrated theft is
decision of the Supreme Court of Spain which had pronounced that in concerned is muddled. It fact, given the disputed foundational basis
determining whether theft had been consummated, "es preciso que of the concept of frustrated theft itself, the question can even be
so haga en circunstancias tales que permitan al sustractor de aquella, asked whether there is really such a crime in the first place.
siquiera sea mas o menos momentaneamente." The qualifier
"siquiera sea mas o menos momentaneamente" proves another IV.
important consideration, as it implies that if the actor was in a
capacity to freely dispose of the stolen items before apprehension, The Court in 1984 did finally rule directly that an accused was guilty
then the theft could be deemed consummated. Such circumstance of frustrated, and not consummated, theft. As we undertake this
was not present in either Diño or Flores, as the stolen items in both
inquiry, we have to reckon with the import of this Court’s 1984 for frustrated theft, its doctrinal value is extremely compromised by
decision in Empelis v. IAC.78 the erroneous legal premises that inform it, and also by the fact that
it has not been entrenched by subsequent reliance.
As narrated in Empelis, the owner of a coconut plantation had espied
four (4) persons in the premises of his plantation, in the act of Thus, Empelis does not compel us that it is an insurmountable given
gathering and tying some coconuts. The accused were surprised by that frustrated theft is viable in this jurisdiction. Considering the
the owner within the plantation as they were carrying with them the flawed reasoning behind its conclusion of frustrated theft, it cannot
coconuts they had gathered. The accused fled the scene, dropping the present any efficacious argument to persuade us in this case. Insofar
coconuts they had seized, and were subsequently arrested after the as Empelis may imply that convictions for frustrated theft are beyond
owner reported the incident to the police. After trial, the accused cavil in this jurisdiction, that decision is subject to reassessment.
were convicted of qualified theft, and the issue they raised on appeal
was that they were guilty only of simple theft. The Court affirmed that V.
the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of
At the time our Revised Penal Code was enacted in 1930, the 1870
frustrated qualified theft.
Codigo Penal de España was then in place. The definition of the crime
of theft, as provided then, read as follows:
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the
Son reos de hurto:
parties. What does appear, though, is that the disposition of that issue
was contained in only two sentences, which we reproduce in full:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
However, the crime committed is only frustrated qualified theft
voluntad de su dueño.
because petitioners were not able to perform all the acts of execution
which should have produced the felony as a consequence. They were
not able to carry the coconuts away from the plantation due to the 2. Los que encontrándose una cosa perdida y sabiendo quién es su
timely arrival of the owner.80 dueño se la apropriaren co intención de lucro.

No legal reference or citation was offered for this averment, whether 3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del
Diño, Flores or the Spanish authorities who may have bolstered the daño causado, salvo los casos previstos en los artίculos 606, núm. 1.0;
conclusion. There are indeed evident problems with this formulation 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo
in Empelis. del 617 y 618.

Empelis held that the crime was only frustrated because the actors It was under the ambit of the 1870 Codigo Penal that the aforecited
"were not able to perform all the acts of execution which should have Spanish Supreme Court decisions were handed down. However, the
produced the felon as a consequence."81 However, per Article 6 of the said code would be revised again in 1932, and several times
Revised Penal Code, the crime is frustrated "when the offender thereafter. In fact, under the Codigo Penal Español de 1995, the crime
performs all the acts of execution," though not producing the felony of theft is now simply defined as "[e]l que, con ánimo de lucro,
as a result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the non- tomare las cosas muebles ajenas sin la voluntad de su dueño será
performance was by reason of some cause or accident other than castigado"82
spontaneous desistance. Empelis concludes that the crime was
Notice that in the 1870 and 1995 definition of theft in the penal code
frustrated because not all of the acts of execution were performed of Spain, "la libre disposicion" of the property is not an element or a
due to the timely arrival of the owner. However, following Article 6 of statutory characteristic of the crime. It does appear that the principle
the Revised Penal Code, these facts should elicit the conclusion that originated and perhaps was fostered in the realm of Spanish
the crime was only attempted, especially given that the acts were not jurisprudence.
performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders. The oft-cited Salvador Viada adopted a question-answer form in his
1926 commentaries on the 1870 Codigo Penal de España. Therein, he
For these reasons, we cannot attribute weight to Empelis as we raised at least three questions for the reader whether the crime of
consider the present petition. Even if the two sentences we had cited frustrated or consummated theft had occurred. The passage cited in
actually aligned with the definitions provided in Article 6 of the Diño was actually utilized by Viada to answer the question whether
Revised Penal Code, such passage bears no reflection that it is the frustrated or consummated theft was committed "[e]l que en el
product of the considered evaluation of the relevant legal or momento mismo de apoderarse de la cosa ajena, viéndose
jurisprudential thought. Instead, the passage is offered as if it were sorprendido, la arroja al suelo."83 Even as the answer was as stated in
sourced from an indubitable legal premise so settled it required no Diño, and was indeed derived from the 1888 decision of the Supreme
further explication. Court of Spain, that decision’s factual predicate occasioning the
statement was apparently very different from Diño, for it appears that
Notably, Empelis has not since been reaffirmed by the Court, or even the 1888 decision involved an accused who was surprised by the
cited as authority on theft. Indeed, we cannot see how Empelis can employees of a haberdashery as he was abstracting a layer of clothing
contribute to our present debate, except for the bare fact that it off a mannequin, and who then proceeded to throw away the
proves that the Court had once deliberately found an accused guilty garment as he fled.84
of frustrated theft. Even if Empelis were considered as a precedent
Nonetheless, Viada does not contest the notion of frustrated theft, command, but from the exercise of the function of statutory
and willingly recites decisions of the Supreme Court of Spain that have interpretation that comes as part and parcel of judicial review, and a
held to that effect.85 A few decades later, the esteemed Eugenio function that allows breathing room for a variety of theorems in
Cuello Calón pointed out the inconsistent application by the Spanish competition until one is ultimately adopted by this Court.
Supreme Court with respect to frustrated theft.
VI.
Hay frustración cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro The foremost predicate that guides us as we explore the matter is that
que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo it lies in the province of the legislature, through statute, to define
efecto por la intervención de la policia situada en el local donde se what constitutes a particular crime in this jurisdiction. It is the
realizó la sustracción que impidió pudieran los reos disponer de lo legislature, as representatives of the sovereign people, which
sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si determines which acts or combination of acts are criminal in nature.
existe apoderamiento, pero el culpale no llega a disponer de la cosa, Judicial interpretation of penal laws should be aligned with what was
12 abril 1930; hay frustración "muy próxima" cuando el culpable es the evident legislative intent, as expressed primarily in the language
detenido por el perjudicado acto seguido de cometer la sustracción, of the law as it defines the crime. It is Congress, not the courts, which
28 febrero 1931. Algunos fallos han considerado la existencia de is to define a crime, and ordain its punishment.88 The courts cannot
frustración cuando, perseguido el culpable o sorprendido en el arrogate the power to introduce a new element of a crime which was
momento de llevar los efectos hurtados, los abandona, 29 mayo unintended by the legislature, or redefine a crime in a manner that
1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, does not hew to the statutory language. Due respect for the
éstos, conforme a lo antes expuesto, son hurtos consumados. 86 prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a
Ultimately, Cuello Calón attacked the very idea that frustrated theft "narrow interpretation" is appropriate. "The Court must take heed of
is actually possible: language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids." 89
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposición del agente. With that in mind, a problem clearly emerges with
Con este criterio coincide la doctrina sentada últimamente porla the Diño/Flores dictum. The ability of the offender to freely dispose
jurisprudencia española que generalmente considera consumado el of the property stolen is not a constitutive element of the crime of
hurto cuando el culpable coge o aprehende la cosa y ésta quede por theft. It finds no support or extension in Article 308, whether as a
tiempo más o menos duradero bajo su poder. El hecho de que éste descriptive or operative element of theft or as the mens rea or actus
pueda aprovecharse o no de lo hurtado es indiferente. El delito no reus of the felony. To restate what this Court has repeatedly held: the
pierde su carácter de consumado aunque la cosa hurtada sea elements of the crime of theft as provided for in Article 308 of the
devuelta por el culpable o fuere recuperada. No se concibe la Revised Penal Code are: (1) that there be taking of personal property;
frustración, pues es muy dificil que el que hace cuanto es necesario (2) that said property belongs to another; (3) that the taking be done
para la consumación del hurto no lo consume efectivamente, los raros with intent to gain; (4) that the taking be done without the consent of
casos que nuestra jurisprudencia, muy vacilante, declara hurtos the owner; and (5) that the taking be accomplished without the use
frustrados son verdaderos delitos consumados.87 (Emphasis supplied) of violence against or intimidation of persons or force upon things. 90

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, Such factor runs immaterial to the statutory definition of theft, which
who was content with replicating the Spanish Supreme Court is the taking, with intent to gain, of personal property of another
decisions on the matter, Cuello Calón actually set forth his own without the latter’s consent. While the Diño/Flores dictum is
thought that questioned whether theft could truly be frustrated, considerate to the mindset of the offender, the statutory definition
since "pues es muy dificil que el que hace cuanto es necesario para la of theft considers only the perspective of intent to gain on the part of
consumación del hurto no lo consume efectivamente." Otherwise the offender, compounded by the deprivation of property on the part
put, it would be difficult to foresee how the execution of all the acts of the victim.
necessary for the completion of the crime would not produce the
effect of theft. For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
This divergence of opinion convinces us, at least, that there is no crime of theft produced? There would be all but certain unanimity in
weighted force in scholarly thought that obliges us to accept the position that theft is produced when there is deprivation of
frustrated theft, as proposed in Diño and Flores. A final ruling by the personal property due to its taking by one with intent to gain. Viewed
Court that there is no crime of frustrated theft in this jurisdiction will from that perspective, it is immaterial to the product of the felony
not lead to scholastic pariah, for such a submission is hardly heretical that the offender, once having committed all the acts of execution for
in light of Cuello Calón’s position. theft, is able or unable to freely dispose of the property stolen since
the deprivation from the owner alone has already ensued from such
Accordingly, it would not be intellectually disingenuous for the Court acts of execution. This conclusion is reflected in Chief Justice Aquino’s
to look at the question from a fresh perspective, as we are not bound commentaries, as earlier cited, that "[i]n theft or robbery the crime is
by the opinions of the respected Spanish commentators, conflicting consummated after the accused had material possession of the thing
as they are, to accept that theft is capable of commission in its with intent to appropriate the same, although his act of making use
frustrated stage. Further, if we ask the question whether there is a of the thing was frustrated."91
mandate of statute or precedent that must compel us to adopt the
Diño and Flores doctrines, the answer has to be in the negative. If we It might be argued, that the ability of the offender to freely dispose of
did so, it would arise not out of obeisance to an inexorably higher the property stolen delves into the concept of "taking" itself, in that
there could be no true taking until the actor obtains such degree of the offender is expected to encounter upon fleeing with the stolen
control over the stolen item. But even if this were correct, the effect property, the manner in which the stolen item had been housed or
would be to downgrade the crime to its attempted, and not frustrated stored; and quite frankly, a whole lot more. Even the fungibility or
stage, for it would mean that not all the acts of execution have not edibility of the stolen item would come into account, relevant as that
been completed, the "taking not having been accomplished." Perhaps would be on whether such property is capable of free disposal at any
this point could serve as fertile ground for future discussion, but our stage, even after the taking has been consummated.
concern now is whether there is indeed a crime of frustrated theft,
and such consideration proves ultimately immaterial to that question. All these complications will make us lose sight of the fact that beneath
Moreover, such issue will not apply to the facts of this particular case. all the colorful detail, the owner was indeed deprived of property by
We are satisfied beyond reasonable doubt that the taking by the one who intended to produce such deprivation for reasons of gain.
petitioner was completed in this case. With intent to gain, he acquired For such will remain the presumed fact if frustrated theft were
physical possession of the stolen cases of detergent for a considerable recognized, for therein, all of the acts of execution, including the
period of time that he was able to drop these off at a spot in the taking, have been completed. If the facts establish the non-
parking lot, and long enough to load these onto a taxicab. completion of the taking due to these peculiar circumstances, the
effect could be to downgrade the crime to the attempted stage, as
Indeed, we have, after all, held that unlawful taking, or not all of the acts of execution have been performed. But once all
apoderamiento, is deemed complete from the moment the offender these acts have been executed, the taking has been completed,
gains possession of the thing, even if he has no opportunity to dispose causing the unlawful deprivation of property, and ultimately the
of the same.92 And long ago, we asserted in People v. Avila:93 consummation of the theft.

x x x [T]he most fundamental notion in the crime of theft is the taking Maybe the Diño/Flores rulings are, in some degree, grounded in
of the thing to be appropriated into the physical power of the thief, common sense. Yet they do not align with the legislated framework
which idea is qualified by other conditions, such as that the taking of the crime of theft. The Revised Penal Code provisions on theft have
must be effected animo lucrandi and without the consent of the not been designed in such fashion as to accommodate said rulings.
owner; and it will be here noted that the definition does not require Again, there is no language in Article 308 that expressly or impliedly
that the taking should be effected against the will of the owner but allows that the "free disposition of the items stolen" is in any way
merely that it should be without his consent, a distinction of no slight determinative of whether the crime of theft has been produced. Diño
importance.94 itself did not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in relying on
Insofar as we consider the present question, "unlawful taking" is most Diño alone for legal support. These cases do not enjoy the weight of
material in this respect. Unlawful taking, which is the deprivation of stare decisis, and even if they did, their erroneous appreciation of our
one’s personal property, is the element which produces the felony in law on theft leave them susceptible to reversal. The same holds true
its consummated stage. At the same time, without unlawful taking as of Empilis, a regrettably stray decision which has not since found favor
an act of execution, the offense could only be attempted theft, if at from this Court.
all.
We thus conclude that under the Revised Penal Code, there is no
With these considerations, we can only conclude that under Article crime of frustrated theft. As petitioner has latched the success of his
308 of the Revised Penal Code, theft cannot have a frustrated stage. appeal on our acceptance of the Diño and Flores rulings, his petition
Theft can only be attempted or consummated. must be denied, for we decline to adopt said rulings in our
jurisdiction. That it has taken all these years for us to recognize that
there can be no frustrated theft under the Revised Penal Code does
Neither Diño nor Flores can convince us otherwise. Both fail to
not detract from the correctness of this conclusion. It will take
consider that once the offenders therein obtained possession over
considerable amendments to our Revised Penal Code in order that
the stolen items, the effect of the felony has been produced as there
frustrated theft may be recognized. Our deference to Viada yields to
has been deprivation of property. The presumed inability of the
the higher reverence for legislative intent.
offenders to freely dispose of the stolen property does not negate the
fact that the owners have already been deprived of their right to
possession upon the completion of the taking. WHEREFORE, the petition is DENIED. Costs against petitioner.

Moreover, as is evident in this case, the adoption of the rule —that SO ORDERED.
the inability of the offender to freely dispose of the stolen property
frustrates the theft — would introduce a convenient defense for the DANTE O. TINGA
accused which does not reflect any legislated intent,95 since the Court Associate Justice
would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy WE CONCUR:
classification. It is difficult to formulate definite standards as to when
a stolen item is susceptible to free disposal by the thief. Would this
REYNATO S. PUNO
depend on the psychological belief of the offender at the time of the
Chief Justice
commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual LEONARDO A. CONSUELO YNARES-
circumstances such as the size and weight of the property, the QUISUMBING SANTIAGO
location of the property, the number and identity of people present Associate Justice Associate Justice
at the scene of the crime, the number and identity of people whom
 8
ANGELINA SANDOVAL- ANTONIO T. CARPIO Id. at 22.
9
GUTIERREZ Associate Justice See id. at 472.
10
See Records, pp. 7-14. A brief comment is warranted regarding
Associate Justice
these four (4) other apparent suspects. The affidavits and sworn
MA. ALICIA AUSTRIA- RENATO C. CORONA statements that were executed during the police investigation by
MARTINEZ Associate Justice security guards Lago and Vivencio Yanson, by SM employee Adelio
Associate Justice Nakar, and by the taxi driver whose cab had been hailed to
CONCHITA CARPIO ADOLFO S. AZCUNA transport the accused, commonly point to all six as co-participants
MORALES Associate Justice in the theft of the detergents. It is not explained in the record why
Associate Justice no charges were brought against the four (4) other suspects, and
the prosecution’s case before the trial court did not attempt to
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
draw in any other suspects other than petitioner and Calderon. On
Associate Justice Associate Justice the other hand, both petitioner and Calderon claimed during trial
PRESBITERO J. VELASCO, ANTONIO EDUARDO B. that they were innocent bystanders who happened to be in the
JR. NACHURA vicinity of the Super Sale Club at the time of the incident when they
Associate Justice Associate Justice were haled in, along with the four (4) other suspects by the security
guards in the resulting confusion. See infra. However, both
petitioner and Calderon made no move to demonstrate that the
non-filing of the charges against the four (4) other suspects
somehow bolstered their plea of innocence.
CERTIFICATION In any event, from the time this case had been elevated on appeal
to the Court of Appeals, no question was anymore raised on the
version of facts presented by the prosecution. Thus, any issue
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby
relative to these four (4) other suspects should bear no effect in the
certified that the conclusions in the above Decision had been
present consideration of the case.
reached in consultation before the case was assigned to the writer 11
Also identified in the case record as "Rosalada" or "Rosullado."
of the opinion of the Court. He happened to be among the four (4) other suspects also
apprehended at the scene and brought for investigation to the
REYNATO S. PUNO Baler PNP Station. See id. Rosulada also testified in court in behalf
of Calderon. See Records, pp. 357-390.
Chief Justice 12
Records, pp. 330-337.
13
A person who was neither among the four (4) other suspects (see
note 6) nor a witness for the defense.
14
Rollo, p. 25.
15
Footnotes Records, pp. 424-425.
16
1
See infra, People v. Diño and People v. Flores. Id. at 472-474; Penned by Judge Reynaldo B. Daway.
17
2
Not accounting for those unpublished or unreported decisions, in Id. at 474.
18
the one hundred year history of this Court, which could no longer Id. at 484.
19
be retrieved from the Philippine Reports or other secondary CA rollo, pp. 54-62.
20
sources, due to their wholesale destruction during the Second Rollo, p. 25.
21
World War or for other reasons. Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the
3
See People v. Adiao, infra. There have been a few cases wherein Court of Appeals Third Division, concurred in by Associate Justices
the Court let stand a conviction for frustrated theft, yet in none of Martin S. Villarama, Jr. and Mario L. Guariña.
22
those cases was the issue squarely presented that theft could be A motion for reconsideration filed by petitioner was denied by
committed at its frustrated stage. See People v. Abuyen, 52 Phil. the Court of Appeals in a Resolution dated 1 October 2003.
23
722 (1929); People v. Flores, 63 Phil. 443 (1936); and People v. Rollo, pp. 8-15.
24
Tapang, 88 Phil. 721 (1951). In People v. Argel G.R. No. L-45975, 25 Id. at 12.
25
May 1981, 192 SCRA 21, the Court did tacitly accept the viability of Id. at 9.
26
a conviction for frustrated theft, though the issue expounded on by Id. at at 13-14.
27
the Court pertained to the proper appellate jurisdiction over such No. 924-R, 18 February 1948, 45 O.G. 3446.
28
conviction. 6 C.A. Rep. 2d 835 (1964).
29
It would indeed be error to perceive that convictions for frustrated See e.g., L.B. Reyes, I The Revised Penal Code: Criminal Law (13th
theft are traditionally unconventional in this jurisdiction, as such ed., 2001), at 112-113 and R. Aquino, I The Revised Penal Code
have routinely been handed down by lower courts, as a survey of (1997 ed.), at 122.
30
jurisprudence would reveal. Still, the plain fact remains that this Act No. 3185, as amended.
31
Court , since Adiao in 1918, has yet to directly rule on the legal See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines
foundation of frustrated theft, or even discuss such scenario by the final point of the subjective phase as "that point where [the
way of dicta. offender] still has control over his acts, including their (acts’)
In passing, we take note of a recent decision of the Court of Appeals natural course." See L.B. Reyes, I The Revised Penal Code: Criminal
in People v. Concepcion, C.A. G.R. CR No. 28280, 11 July 2005 (See Law (13th Ed., 2001), at 101.
32
at http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where People v. Caballero, 448 Phil. 514, 534 (2003).
33
the appellate court affirmed a conviction for frustrated theft, the See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v.
accused therein having been caught inside Meralco property Caballero, id.
34
before he could flee with some copper electrical wire. However, in U.S. v. Eduave, 36 Phil. 209, 212 (1917).
35
the said decision, the accused was charged at the onset with People v. Pacana, 47 Phil. 48 (1925); cited in Aquino, supra note
frustrated theft, and the Court of Appeals did not inquire why the 29, at 39. See also Lecaroz v. Sandiganbayan, 364 Phil. 890, 905
crime committed was only frustrated theft. Moreover, the charge (1999).
36
for theft was not under the Revised Penal Code, but under Rep. Act See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA
No. 7832, a special law. 127, 135.
37
4
53 Phil. 226 (1929). People v. Moreno, 356 Phil. 231, 248 (1998) citing Black's Law
5
217 Phil. 377 (1984). Dictionary, 5th ed., p. 889.
38
6
Records, pp. 1-2. Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990,
7
Rollo, pp. 21-22. 188 SCRA 475, 490.
39 73
City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.
74
Opinion, J.Tinga, Romualdez v. Sandiganbayan, G.R. No. 152259, 29 Id. at 1391. Citations omitted.
75
July 2004, 435 SCRA 371, 400. CA G.R. No. 2107-R, 31 May 1949.
40 76
J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. Note the similarity between this holding and the observations of
81567, 3 October 1991, 202 SCRA 251, 288. Chief Justice Aquino in note 72.
41 77
See also Revised Penal Code, Art. 310, which qualifies theft with Reyes, supra note 29 at 113.
78
a penalty two degrees higher "if committed by a domestic servant, Supra note 5.
79
or with grave abuse of confidence, or if the property stolen is motor "Revised Penal Code, Art. 310 states that the crime of theft shall
vehicle, mail matter or large cattle or consists of coconuts taken "be punished by the penalties next higher by two degrees than
from the premises of the plantation or fish taken from a fishpond those respectively expressed in the next preceding article x x x if
or fishery, or if property is taken on the occasion of fire, the property stolen x x x consists of coconuts taken from the
earthquake, typhoon, volcanic eruption, or any other calamity, premises of a plantation, x x x." Thus, the stealing of coconuts when
vehicular accident or civil disturbance." they are still in the tree or deposited on the ground within the
42
See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA premises is qualified theft. When the coconuts are stolen in any
284, 291, citing People v. Sison, 322 SCRA 345, 363-364 (2000). other place, it is simple theft. Stated differently, if the coconuts
43
S. Guevarra, Commentaries on the Revised Penal Code (4th ed., were taken in front of a house along the highway outside the
1946), at 614. coconut plantation, it would be simple theft only.
44
Id. at 615. [In the case at bar, petitioners were seen carrying away fifty
45
Id. citing Inst. 4, 1, 1. coconuts while they were still in the premises of the plantation.
46
Section 1(2) of the Theft Act of 1968 states: "It is immaterial They would therefore come within the definition of qualified theft
whether the appropriation is made with a view to gain, or is made because the property stolen consists of coconuts "taken from the
for the thief’s own benefit." Sir John Smith provides a sensible premises of a plantation."] Empelis v. IAC, supra note 5, at 379, 380.
80
rationalization for this doctrine: "Thus, to take examples from the Empelis v. IAC, supra note 5, at 380.
81
old law, if D takes P’s letters and puts them down on a lavatory or Id.
82
backs P’s horse down a mine shaft, he is guilty of theft Art. 234, Código Penal Español de 1995. See Ley Orgánica
notwithstanding the fact that he intends only loss to P and no gain 10/1995, de 23 de noviembre, del Código Penal,
to himself or anyone else. It might be thought that these instances http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html
could safely and more appropriately have been left to other (Last visited, 15 April 2007). The traditional qualifier "but without
branches of the criminal law—that of criminal damage to property violence against or intimidation of persons nor force upon things,"
for instance. But there are cases where there is no such damage or is instead incorporated in the definition of robbery ("robos") under
destruction of the thing as would found a charge under another Articulo 237 of the same Code ("Son reos del delito de robo los que,
Act. For example, D takes P’s diamond and flings it into a deep con ánimo de lucro, se apoderaren de las cosas muebles ajenas
pond. The diamond lies unharmed in the pond and a prosecution empleando fuerza en las cosas para acceder al lugar donde éstas se
for criminal damage would fail. It seems clearly right that D should encuentran o violencia o intimidación en las personas.")
be guilty of theft." J. Smith, Smith & Hogan Criminal Law (9th ed., By way of contrast, the Theft Act 1968 of Great Britain defines theft
1999), at 534. in the following manner: "A person is guilty of theft if he
47
F. Regalado, Criminal Law Conspectus (1st ed., 2000), at 520. dishonestly appropriates property belonging to another with the
48
People v. Kho Choc, 50 O.G. 1667, cited in Regalado, id. at 521. intention of permanently depriving the other of it; and ‘thief’ and
49
People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. ‘steal’ shall be construed accordingly." See Section 1(1), Theft Act
3103; cf.People v. Roxas, CA-G.R. No. 14953, 31 October 1956, all 1968 (Great Britain). The most notable difference between the
cited in Regalado, supra note 47 at 521. modern British and Spanish laws on theft is the absence in the
50
People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, former of the element of animo lucrandi. See note 42.
83
48 O.G. 4417, cited in Regalado, supra note 47 at 521. 1 S. Viada, Codigo Penal Reformado de 1870 (1926 ed) at 103.
51 84
REgalado, supra note 47 at 521 citing Villacorta v. Insurance "Considerando que según se desprende de la sentencia
Commission, G.R. No. 54171, 28 October 1980, 100 SCRA recurrida, los dependientes de la sastrería de D. Joaquin Gabino
467; Association of Baptists for World Evangelism v. Fieldmen’s Ins. sorprendieron al penado Juan Gomez Lopez al tomar una capa que
Co., No. L-28772, 21 September 1983, 209 Phil. 505 (1983). See había en un maniquí, por lo que hubo de arrojarla al suelo, siendo
also People v. Bustinera, supra note 42. detenido despues por agentes de la Autoridad yque esto supuesto
52
The distinction being "inconsequential" if the criminal charge is es evidente que el delito no aparece realizado en toda la extensión
based on a special law such as the Dangerous Drugs Law. See e.g., precisa para poderlo calificar como consumado, etc." Id. at 103-
People v. Enriquez, G.R. No. 99838, October 23 1997, 281 SCRA 103, 104.
85
120. The other examples cited by Viada of frustrated theft are in the
53
38 Phil. 754 (1918). case where the offender was caught stealing potatoes off a field by
54
Id. at 755. storing them in his coat, before he could leave the field where the
55
Id. potatoes were taken, see Viada (supra note 83, at 103), where the
56
Id. at 755-756. offender was surprised at the meadow from where he was stealing
57
Supra note 4. firewood, id.
58 86
Supra note 4 at 227. E. Cuello Calon, II Derecho Penal (1955 ed.), at 799 (Footnote 1).
59 87
Id. Id. at 798-799.
60 88
People v. Diño, supra note 27 at 3450. Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA
61
Id. 243, 266, citing United States v. Wiltberger, 18 U.S. 76 (1820).
62 89
Id. Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA
63
Id. at 3451. 243. See also Dowling v. United States, 473 U.S. 207 (1985).
64
People v. Flores, supra note 28 at 840.
65
Id. at 836. The Court of Appeals in Flores did not identify the 90
character of these stolen merchandise. See e.g., People v. Bustinera, supra note 42.
66
Id. at 841.
67
Id. 91 Aquino, supra note 29, at 110.
68
People v. Diño, supra note 27 at 841.
69
People v. Naval and Beltran, CA 46 O.G. 2641.
70 92People v. Obillo, 411 Phil. 139, 150 (2001); People v.
See note 62.
71
Aquino, supra note 29 at 122. Bernabe, 448 Phil. 269, 280 (2003); People v. Bustinera,
72
Id. at 110. supra note 42 at 295.
93 44 Phil. 720 (1923).

94 Id. at 726.

95Justice Regalado cautions against "putting a premium