DOCTRINE: The general rule is that only movable properties which have physical or material existence and are susceptible of occupation by another are proper objects of theft. Only those movable properties which can be taken and carried from the place they are found are proper subjects of theft.
Facts: ● Baynet Co., Ltd. Is being sued for network fraud. Laurel is the board member and corporate secretary of Baynet. 2 other Filipinos and two Japanese composed the board. (Baynet) sells "Bay Super Orient Card" which uses an alternative calling pattern called International Simple Resale (ISR). ● ISR is a method of routing and completing international long distance calls using International Private Leased Lines (IPL), cables, antenna or airwave or frequency, which connect directly to the local or domestic exchange facilities of the terminating country (the country where the call is destined). The operator of an ISR is able to evade payment of access, termination or bypass charges and accounting rates, as well as compliance with the regulatory requirements of the NTC. Thus, the ISR operator offers international telecommunication services at a lower rate, to the damage and prejudice of legitimate operators like PLDT. ● Search warrants were issued against baynet through PLDT's complaint. The search was followed by an inquest investigation. The prosecutor found probable cause for THEFT and filed Information. After preliminary investigation the information was amended to include Laurel and the other members of the board for THEFT using ISR. ● The accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the grounds that RPC does not punish the use of ISR, The telephone calls belong to the person calling not to PLDT, and that no personal property was stolen from PLDT. There is no crime when there is no law punishing the crime.
Issue: Whether or not international telephone calls using Bay Super Orient Cards through the telecommunication services provided by PLDT for such calls, or, in short, PLDT’s business of providing said telecommunication services, are proper subjects of theft under Article 308 of the Revised Penal Code
Held: RTC denied MQ MR denied. Petition for Certiorari with CA, dismissed. SC, granted.The petition is meritorious.An information or complaint must state explicitly and directly every act or omission constituting an offense and must allege facts establishing the conduct. The Amended Information does not contain material allegations charging the petitioner of theft of personal property under Article 308 of the Revised Penal Code. The international telephone calls placed by Bay Super Orient Card holders, the telecommunication services provided by PLDT and its business of providing said services are not personal properties under Article 308 of the Revised Penal Code.
Article 308 of the Revised Penal Code defines theft as follows: Who are liable for theft.– Theft is committed by any person who, with intent to gain but without violence, against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent. For one to be guilty of theft the accused must have an intent to steal (animus furandi) personal property, meaning the intent to deprive another of his ownership/lawful possession of personal property which intent is apart from and concurrently with the general criminal intent which is an essential element of a felony of dolo (dolus malus).
An information or complaint for simple theft must allege the following elements: (a) the taking of personal property; (b) the said property belongs to another; (c) the taking be done with intent to gain; and (d) the taking can be accomplished without the use of violence or intimidation of person/s or force upon things.
"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 only movable properties which have physical or material existence and are susceptible of occupation by another are proper objects of theft. Only those movable properties which 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 to theft because the same cannot be "taken" from the place it is found and is occupied or appropriated. Movable properties under Article 308 of the Revised Penal Code should be distinguished from the rights or interests to which they relate. A naked right existing merely in contemplation of law, although it may be very valuable to the person who is entitled to exercise it, is not the subject of theft or larceny. Such rights or interests are intangible and cannot be "taken" by another.
There is "taking" of personal property, and theft is consummated when the offender unlawfully acquires possession of the personal property even if for a short time; or if such property is under the dominion and control of the thief. The taker must have obtained complete and absolute possession and control of the property adverse to the rights of the owner or the lawful possessor thereof. It 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 with it. Neither asportation nor actual manual possession of the property is required. Constructive possession of the thief of the property is enough. The essence of the element is the taking of a thing out of the possession of the owner without his privity and consent and without animus revertendi.
Gas and electricity are susceptible to taking since they can be appropriated. Business and services cannot be taken thus, not a subject of theft. They both have different definitions. RPC cannot have included human voice or ISR in theft since such was not existing at that time. Respondent PLDT does not acquire possession, much less, ownership of the voices of the telephone callers or of the electronic voice signals or current emanating from said calls. The human voice and the electronic voice signals or current caused thereby are intangible and not susceptible to possession, occupation or appropriation by the respondent PLDT or even the petitioner, for that matter. PLDT merely transmits the electronic voice signals through its facilities and equipment.
Congress did not amend the definition of theft rather they passed RA 8484 and 8792. Republic Act No. 8484, otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998. Under the law, an access device means any card, plate, code, account number, electronic serial number, personal identification number and other telecommunication services, equipment or 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 transfer originated solely by paper instrument. Among the prohibited acts enumerated in Section 9 of the law 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 with one 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 with violation of R.A. 8484. Significantly, a prosecution under the law shall be without prejudice to any liability for violation of any provisions of the Revised Penal Code inclusive of theft under Rule 308 of the Revised Penal Code and estafa under Article 315 of the Revised Penal Code. Thus, if an individual steals a credit card and uses the same to obtain services, he is liable of the following: theft of the credit card under Article 308 of the Revised Penal Code; violation of Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised Penal Code with the service provider as the private complainant.
The petitioner is not charged of estafa before the RTC in the Amended Information. Section 33 of Republic Act No. 8792, the Electronic Commerce Act of 2000 provides Sec. 33. Penalties. The following Acts shall be penalized by fine and/or imprisonment, as follows:a) Hacking or cracking which refers to unauthorized access into or interference in a computer system/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 and communications system, including the introduction of computer viruses and the like, resulting on the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and mandatory imprisonment of six (6) months to three (3) years. Laurel vs. Abrogar (Resolution of the Motion for Reconsideration), G.R. No. 155076, 13 January 2009.
Facts: ● Petitioner filed a “Motion to Quash (with Motion to Defer Arraignment),” on the ground that the factual allegations in the Amended Information do not constitute the felony of theft. The trial court denied the Motion to Quash the Amended Information, as well as petitioner’s subsequent Motion for Reconsideration. ● Petitioner’s special civil action for certiorari was dismissed by the Court of Appeals. Thus, petitioner filed the instant petition for review with this Court. ● In the above-quoted Decision, this Court held that the Amended Information does not contain material allegations charging petitioner with theft of personal property 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. ● (PLDT) filed a Motion for Reconsideration with Motion to Refer the Case to the Supreme Court En Banc. It maintains that the Amended Information charging petitioner with theft is valid and sufficient; that it states the names of all the accused who were specifically charged with the crime of theft of PLDT’s international calls and business of providing telecommunication or telephone service ● PLDT further insists that the Revised Penal Code should be interpreted in the context of the Civil Code’s definition of real and personal property. The enumeration of real properties in Article 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 property” without qualification, it follows that all “personal properties” as understood in the context of the Civil Code, may be the subject of theft under Article 308 of the Revised Penal Code. ● PLDT alleges that the international calls and business of providing telecommunication or telephone service are personal properties capable of appropriation and can be objects of theft. ● Laurel was charged with engaging in International Simple Resale (ISR) or the unauthorized 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 domestic exchange facilities of the country where they were destined. ● PLDT alleges that the “international phone calls” which are “electric currents or sets of electric impulses transmitted through a medium, and carry a pattern representing the human voice to a receiver,” are personal properties which may be the subject of theft. Art. 416(3) deems “forces of nature” (which includes electricity” which are brought under the control of science, are personal property. ● Laurel claims that a telephone call is a conversation on the phone or a communication carried out using the telephone. It is not synonymous to electric currents or impulses. Hence, it may not be considered as personal property susceptible to appropriation. ● Laurel claims that the analogy between generated electricity and telephone calls is misplaced. PLDT does not produce or generate telephone calls. It only provides the facilities or services for the transmission and switching of the calls. He also insists that “business” is not personal property. It is not the “business” that is protected but the “right to carry a business.” This right is what is considered as property. Since the services of PLDT cannot be considered as “property,” the same may not be the subject of theft.
Issue: Is Laurel guilty of theft of personal property?
Held: YES. The act of conducting ISR operations by illegally connecting various equipment or apparatus to PLDT’s telephone system, through which Laurel is able to resell or re-route international long distance calls using PLDT’s facilities constitutes acts of subtraction. The business of providing telecommunication is likewise personal property which can be the object of theft. Interest in business was not specifically enumerated as personal property in the Civil Code in force at the time the above decision was rendered. Yet, interest in business was declared to be personal property since it is capable of appropriation and not included in the enumeration of real properties. Art. 414 provides that all things which are or may be the object of appropriation are considered either real property or personal property. Business is likewise not enumerated as personal property under the Civil Code. Just like interest in business, however, it may be appropriated. Business should also be classified as personal property. Since it is not included in the exclusive enumeration of real properties under Art. 415. It is therefore personal property. In making international phone calls, the human voice is converted into electrical impulses or electric current which are transmitted to the party called. A telephone call, therefore, is electrical energy. Intangible property such as electrical energy is capable of appropriation because it may be taken and carried away. Electricity is personal property under art. 416(3) which enumerates “forces of nature which are brought under control by science.” It is the use of these communications facilities without the consent of PLDT that constitutes the crime of theft, which is the unlawful taking of the telephone services and business. Therefore, the business of providing telecommunication and the telephone service is personal property.