Right charge, wrong subject

The elements of theft under Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. In this case of Larry, the meaning of the term “personal property” and “taking” is explained.

In the Information filed before the Makati Regional Trial Court (RTC) upon complaint of PLDT, Larry was charged with theft for engaging in International Simple Resale (ISR) or the unauthorized routing and completing of the international long distance calls using PLDT lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where the calls are destined.

Before arraignment Larry filed a Motion to Quash said Information on the ground that its factual allegations do not constitute theft since international long distance calls and the business of providing telecommunication or telephone services are not “personal properties” under Article 308 of the Revised Penal Code (RPC). He also argued that “taking” in relation to theft under the said article of RPC requires “asportation” or carrying away while the object of theft in this case was not capable of being carried away. The RTC however denied Larry’s motion. This was affirmed by the Court of Appeals (CA). Were the RTC and the CA correct?

Yes, but the Information must be amended to clearly define the property subject of the theft.

The term “personal property” as objects of theft has been defined even prior to the passage of the RPC on December 8, 1930 as any personal property, tangible or intangible, corporeal or incorporeal capable of appropriation. Since the passage of the RPC, the term “personal property has had a generally accepted definition in civil law meaning “anything susceptible of appropriation” and not included in the enumeration of the real property. Since the legislature did not limit or qualify the definition of “personal property” in the RPC nor did it provide a restrictive definition or an exclusive enumeration of personal property in the RPC, thereby showing its intent to retain its extensive and unqualified interpretation, any property which is not included in the enumeration of real property under the Civil Code and capable of appropriation can be the subject of theft under the RPC.

Hence “take” under the theft provision of the RPC does not require asportation or carrying away. Said word includes any act intended to transfer possession which may be committed through the use of the offender’s own hands, as well as any mechanical device, such as access device or cards as in the instant case. This includes controlling the destination of the property stolen to deprive the owner of the property such as meter tampering or use of jumper to divert electricity, use of a device to fraudulently obtain gas.

In making international telephone calls, the human voice is converted into electric impulses or electric current which are transmitted to the party called. A telephone call is therefore electric energy which is an intangible property capable of appropriation. It is part of the forces of nature brought under control by science and therefore considered personal property under Article 416 (3) of the Civil Code. In fact as early as 1910 the following acts of “subtraction” were covered by the provisions on theft under Penal Code then in force: (1) tampering with any wire, meter, or other apparatus installed or used for generating, containing, conducting, or measuring electricity, telegraph or telephone service; (2) tapping or otherwise wrongfully deflecting or taking any electric current from such wire, meter or other apparatus; and (3) using or enjoying the benefits of any device by means of which one may fraudulently obtain any current of electricity, telegraph or telephone service. Hence the act of conducting ISR operations by illegally connecting various equipment or apparatus to PLDT’s telephone system through which Larry is able to resell or re-route the long distance calls is clearly an act of subtraction and therefore constitutes theft.

However, the international long distance calls are not personal properties belonging to PLDT since it could not have acquired ownership over such calls. It merely encodes, augments, enhances, decodes and transmits said calls using its complex communications facilities and infrastructure. It is therefore the use of these facilities, or the business and services of PLDT without its consent that constitutes the crime of theft.

But since the Information describes the thing taken as the “international long distance calls”, the said inaccuracy must be corrected by remanding the case to the RTC so that the Prosecutor can amend the Information to insure that Larry is fully and sufficiently apprised of the nature and cause of the charge against him (Laurel vs. Abrogar and PLDT, G.R. 155076, January 13, 2009).   

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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