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[No. 13785. October 8, 1918.]

THE UNITED STATES, plaintiff and appellee, vs. TOMAS

ADIAO, defendant and appellant.

1. THEFT; WHEN CONSUMMATED OR FRUSTRATED.—

One A., a Customs' inspector, abstracted a leather belt
valued at eighty centavos from the baggage of a Japanese
and secreted the belt in his desk in the Custom House,
where it was found by other Customs employees. Held:
That since the offender had performed all of the acts of
execution necessary for the accomplishment of the felony,
he is guilty of the consummated crime of theft.

2. ID. ; ID.—The decisions of the supreme court of Spain of

October 14, 1898, December 1, 1897, and June 13,1882,
cited and approved.

APPEAL from a judgment of the Court of First Instance of

Manila. V. del Rosario, J.
The facts are stated in the opinion of the court.
Victoriano Yamzon for appellant.
Attorney-General Paredes for appellee.

MALCOLM, J.:

The defendant was charged in the Municipal Court of the

city of Manila with the crime of theft. He was found guilty
of the lesser crime of frustrated theft. He appealed to the
Court of First Instance of the city of Manila and again he
was found guilty of the crime of frustrated theft, and was
sentenced to pay a fine of P100, with subsidiary
imprisonment in case of insolvency, and to pay the costs.
755

VOL. 38, OCTOBER 8, 1918. 755

United States vs. Adiao.

The sole error assigned on appeal is that the lower court

erred in holding that the defendant was guilty of the crime
of theft as disclosed by the facts appearing of record. We
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have examined the evidence carefully and from our study

are unable to say that the proof is contrary to the findings
of the lower court. Stated in one sentence, the defendant,
Tomas Adiao, a customs inspector, abstracted a leather belt
valued at fK).80, from the baggage of a Japanese named T.
Murakami, and secreted the belt in his desk in the Custom
House, where it was found by other customs employees.
Based on these facts, the Court is of the opinion that the
crime can not properly be classified as frustrated, as this
word is defined in article 3 of the Penal Code, but that
since the offender performed all of the acts of execution
necessary for the accomplishment of the felony, he is guilty
of the consummated crime of theft. The fact that the
defendant was under observation during the entire
transaction and that he was unable to get the merchandise
out of the Custom House, is not decisive; all the elements of
the completed crime of theft are present. The following
decisions of the supreme court of Spain are in point:
"The defendant was charged with the theft of some fruit
from the land of another. As he was in the act of taking the
fruit he was seen by a policeman, yet it did not appear that
he was at that moment caught by the policeman but
sometime later. The court said: "* * *. The trial court did
not err * * * in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as
nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land
arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its
utilization by him for an interval of time." (Decision of the
supreme court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while
the latter was hearing mass in a church. The latter on
account of the solemnity of the act, although noticing the

756

756 PHILIPPINE REPORTS ANNOTATED

United States vs. Adiao.

theft, did not do anything to prevent it. Subsequently,

however, while the defendant was still inside the church,
the offended party got back the money from the defendant.
The court said that the defendant had performed all the
acts of execution and considered the theft as consummated.
(Decision of the supreme court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house
and by means of a key opened up a case, and from the case
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took a small box, which was ,also opened with a key, from
which in turn he took a purse containing 461 reales and 20
céntimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards
who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "*      *
          *' The accused *           *           * having materially taken
possession of the money from the moment he took it from
the place where it had been, and having taken it with his
hands with intent to appropriate the same, he executed all
the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing
having been frustrated, which, however, does not go to
make the elements of the consummated crime." (Decision of
the supreme court of Spain, June 13, 1882.)
There exists the aggravating circumstance that
advantage was taken by the offender of his public position.
Wherefore, in view of the provisions of articles 517 and 518,
No. 5, of the Penal Code, and there being present one
aggravating circumstance compensated by no mitigating
circumstance, the penalty must be imposed in the
maximum degree.
Judgment is reversed and the defendant and appellant
is sentenced to three months and one day of arresto mayor,
with the costs of all instances against him. The
merchandise in question, attached to the record as Exhibit
A, shall be returned to the lawful owner, T. Murakami. So
ordered.

Torres, Johnson, Street, Avancena, and Fisher, JJ.,

concur.

Judgment reversed, penalty increased.

757

VOL. 38, OCTOBER 8, 1918. 757

United States vs. Garcia Gavieres.

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