EN BANC
ARISTOTEL
VALENZUELA y G. R. No. 160188
NATIVIDAD,
Petitioner, Present:
PUNO, C.J.,
QUISUMBING,
-
versus - GUTIERREZ,
CARPIO,
CARPIO
MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO,
and
PEOPLE
OF THE
and
HON. COURT OF APPEALS,
Respondents.
Promulgated:
x----------------------------------------------------------------------------x
Tinga,
J.:
This
case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but
instead insists that as a result, he should be adjudged guilty of frustrated
theft only, not the felony in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two well-known decisions[1]
rendered decades ago by the Court of Appeals, upholding the existence of frustrated
theft of which the accused in both cases were found guilty. However, the rationale
behind the rulings has never been affirmed by this Court.
As far as can be told,[2] the
last time this Court extensively considered whether an accused was guilty of frustrated
or consummated theft was in 1918, in People v. Adiao.[3] A
more cursory
treatment of the question was
followed in 1929, in People v. Sobrevilla,[4]
and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally
and fully measure if or how frustrated theft is susceptible to commission under
the Revised Penal Code.
I.
The
basic facts are no longer disputed before us. The case stems from an
Information[6] charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with
the crime of theft. On
Thereafter, petitioner left the
parking area and haled a taxi. He boarded the cab and directed it towards the
parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then
boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop
the taxi as it was leaving the open parking area. When Lago asked petitioner
for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on
foot, but Lago fired a warning shot to alert his fellow security guards of the
incident. Petitioner and Calderon were apprehended at the scene, and the stolen
merchandise recovered.[8] The
filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the
goods with an aggregate value of P12,090.00.[9]
Petitioner
and Calderon were first brought to the SM security office before they were
transferred on the same day to the Baler Station II of the Philippine National
Police,
After
pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale
Club on the afternoon of
transpiring. As they were outside,
they were suddenly “grabbed” by a security guard, thus commencing their
detention.[12]
Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio
Valenzuela,[13] had
been at the parking lot, walking beside the nearby BLISS complex and headed to
ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a
shot. The gunshot caused him and the other people at the scene to start
running, at which point he was apprehended by Lago and brought to the security
office. Petitioner claimed he was detained at the security office until around
In
a Decision[16]
promulgated on
Both accused filed their respective
Notices of Appeal,[18]
but only petitioner filed a brief[19]
with the Court of Appeals, causing the appellate court to deem Calderon’s
appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner
argued that he should only be convicted of frustrated theft since at the time
he was apprehended, he was never placed in a position to freely dispose of the
articles stolen.[20]
However, in its Decision dated
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 P12,090.00 of which he was charged.[25]
As such, there is no cause for the Court to consider a factual scenario other
than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the
theft should be deemed as consummated or merely frustrated.
II.
In
arguing that he should only be convicted of frustrated theft, petitioner cites[26]
two decisions rendered many years ago by the Court of Appeals: People v. Diño[27] and People
v.
It is not necessary to fault the
Court of Appeals for giving short shrift to the Diño and Flores rulings
since they have not yet been expressly adopted
as precedents by this Court. For
whatever reasons,
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 appellate court rulings. They are comprehensively
discussed in the most popular of our criminal law annotations,[29]
and studied in criminal law classes as textbook examples of frustrated crimes
or even as definitive of frustrated theft.
More critically, the factual milieu in
those cases is hardly akin to the fanciful scenarios that populate criminal law
exams more than they actually occur in real life. Indeed, if we finally say
that Diño and Flores are doctrinal, such conclusion could profoundly influence a
multitude 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 checkout counter or a
parking area pay booth, may easily call for the application of Diño and Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Diño and Flores and the
theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those
theories are correct and should continue to influence prosecutors and judges in
the future.
III.
To delve into any extended analysis
of Diño and Flores, as well as the specific issues relative to
“frustrated theft,” it is necessary to first refer to the basic rules on the
three stages of crimes under our Revised Penal Code.[30]
Article
6 defines those three stages, namely the consummated, frustrated and attempted
felonies. A felony is consummated “when all the elements necessary for its
execution and accomplishment are present.” It is frustrated “when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.” Finally, it is attempted “when the
offender commences the commission of a felony directly by overt acts, and does
not perform all the acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous desistance.”
Each
felony under the Revised Penal Code has a “subjective phase,” or that portion
of the acts constituting the crime included between 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 consummated crime.[31]
After that point has been breached, the subjective phase ends and the objective
phase begins.[32] It has
been held that if the offender never passes the subjective phase of the offense,
the crime is merely attempted.[33]
On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, “[s]ubjectively the crime is complete.”[34]
Truly, an easy distinction lies
between consummated and frustrated felonies on one hand, and attempted felonies
on the other. So long as the offender fails to complete all the acts of
execution despite commencing the commission of a felony, the crime is
undoubtedly in the attempted stage. Since the specific acts of execution that
define each crime under the Revised Penal Code are generally enumerated in the
code itself, the task of ascertaining whether a crime is 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.
In
contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been
performed by the offender. The critical distinction instead is whether the
felony itself was actually produced 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 statutory definition that generally
furnishes the elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.
The
long-standing Latin maxim “actus non
facit reum, nisi mens sit rea” supplies an important characteristic of a
crime, that “ordinarily, evil intent must unite with an unlawful act for there
to be a crime,” and accordingly, there can be no crime when the criminal mind
is wanting.[35]
Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as “a guilty
mind, a guilty or wrongful purpose or criminal intent,”[37] and
“essential for criminal liability.”[38] It
follows that the statutory definition of our mala in se 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
constitutionally protected rights.”[39]
The criminal statute must also provide for the overt acts that constitute the
crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an
actus
It is from the actus
We
next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art.
308. 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.
Theft is likewise committed by:
1. Any
person who, having found lost property, shall fail to deliver the same to the
local authorities or to its owner;
2. Any person who, after having
maliciously damaged the property of another, shall remove or make use of the
fruits or object of the damage caused by him; and
3. Any person who shall enter an
inclosed estate or a field where trespass is forbidden or which belongs to
another and without the consent of its owner, shall hunt or fish upon the same
or shall gather cereals, or other forest or farm products.
Article
308 provides for a general definition of theft, and three alternative and
highly idiosyncratic means by which theft may be 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 face of the definition, there is only one operative act
of execution by the actor involved in theft ─ the taking of personal
property of another. It is also clear from the provision that in order that
such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without
force upon things or violence against or intimidation of persons; and it was
without the consent of the owner of the property.
Indeed, we have long recognized the
following elements of theft as provided for in Article 308 of the Revised Penal
Code, namely: (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.[42]
In his commentaries, Judge Guevarra
traces the history of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass “any kind of physical
handling of property belonging to another against the will of the owner,”[43] a
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 handling, there must further be an intent of acquiring gain
from the object, thus: “[f]urtum est contrectatio rei fraudulosa, lucri
faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.”[45] This
requirement of animo lucrandi, or intent to gain, was maintained in both the
Spanish and Filipino penal laws, even as it has since been abandoned in
In Spanish law, animo lucrandi was compounded with apoderamiento, or “unlawful taking,” to characterize theft. Justice
Regalado notes that the concept of apoderamiento
once had a controversial interpretation and application. Spanish law had
already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be
coupled with “the intent to 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 Appeals ruled,
alternatively, that there must be permanency in the taking[48]
or an intent to permanently deprive the owner of the stolen property;[49]
or that there was no need for permanency in the taking or in its intent, as the
mere temporary possession by the offender or disturbance of the proprietary
rights of the owner already constituted apoderamiento.[50]
Ultimately, as Justice Regalado notes, the Court adopted the latter thought
that there was no need of an intent to permanently deprive the owner of his
property to constitute an unlawful taking.[51]
So
long as the “descriptive” circumstances that qualify the taking are present, including
animo lucrandi and apoderamiento, the completion of the
operative act that is the taking of personal property of another establishes,
at least, that the transgression went beyond the attempted stage. As applied to
the present case, the moment petitioner obtained physical possession of the
cases of detergent and loaded them in the pushcart, such seizure motivated by
intent to gain, 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 benefit a
conviction for only attempted theft would have afforded him.
On
the critical question of whether it was consummated or frustrated theft, we are
obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.
Following that provision, the theft would have been frustrated only, once the
acts committed by petitioner, if ordinarily sufficient to produce theft as a
consequence, “do not produce [such theft] by reason of causes independent of
the will of the perpetrator.” There are clearly two determinative factors to
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 case. The first, however,
relies primarily on a doctrinal definition attaching to the individual felonies
in the Revised Penal Code[52]
as to when a particular felony is “not produced,” despite the commission of all
the acts of execution.
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 under Article 308, there is one
apparent answer provided in the language of the law — that theft is already “produced”
upon the “tak[ing of] personal property of another without the latter’s consent.”
U.S. v. Adiao[53] apparently
supports that notion. Therein, a customs inspector was charged with theft after
he abstracted a leather belt from the baggage of a foreign national and
secreted the item in his desk at the Custom House. At no time was the accused
able to “get the merchandise out of the Custom House,” and it appears that he
“was under observation during the entire transaction.”[54]
Based 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 elements of the completed crime of
theft are present.”[55]
In support of its conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the discussion of which we
replicate below:
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: "[x x x] The trial court did not err [x x x ] 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 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 took a small box, which was also opened
with a key, from which in turn he took a purse containing 461 reales and 20
centimos, 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: "[x x x] The
accused [x x x] 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.)[56]
It
is clear from the facts of Adiao
itself, and the three (3) Spanish decisions cited therein, that the criminal
actors in all these cases had been able to obtain full possession of the
personal property prior to their apprehension. The interval between the
commission of the acts of theft and the apprehension of the thieves did vary,
from “sometime later” in the 1898 decision; to the very moment the thief had just
extracted the money in a purse which had been stored as it 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 happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence
in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.
In
1929, the Court was again confronted by a claim that an accused was guilty only
of frustrated rather than consummated theft. The case 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 from the trousers of the victim when the
latter, perceiving the theft, “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 let go of the defendant, who was afterwards caught by a
policeman.”[58] In
rejecting the contention that only frustrated theft was established, the Court
simply said, without further comment or elaboration:
We believe that such
a contention is groundless. The [accused] succeeded in taking the pocket-book,
and that determines the crime of theft. If the pocket-book was afterwards
recovered, such recovery does not affect the [accused’s] criminal liability,
which arose from the [accused] having succeeded in taking the pocket-book.[59]
If
anything, Sobrevilla is consistent
with Adiao and the Spanish Supreme Court
cases cited in the latter, in that the fact that the offender was able to
succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court
decisions cited therein contradict the position of petitioner in this case. Yet
to simply affirm without further comment would be disingenuous, as there is
another school of thought on when theft is consummated, as reflected in the Diño and
Diño was
decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before
In doing so, the appellate court
pointed out that the evident intent of the accused was to let the boxes of
rifles “pass through the checkpoint, perhaps in the belief that as the truck
had already unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or checking.”[60] This
point was deemed material and indicative that the theft had not been fully
produced, for the Court of Appeals pronounced that “the fact determinative of
consummation is the ability of the thief to dispose freely of the articles
stolen, even if it were more or less momentary.”[61]
Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated
Considerando que para que el apoderamiento
de la cosa sustraida sea determinate de la consumacion del delito de hurto es
preciso que so haga en circunstancias tales que permitan al sustractor la libre
disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra
suerte, dado el concepto del delito de hurto, no puede decirse en realidad que
se haya producido en toda su extension, sin materializar demasiado el acto de
tomar la cosa ajena.[62]
Integrating these considerations, the
Court of Appeals then concluded:
This
court is of the opinion that in the case at bar, in order to make the booty
subject to the control and disposal of the culprits, the articles stolen must
first be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and
disposal of the looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely intervention of the guard. The
offense committed, therefore, is that of frustrated theft.[63]
Diño thus laid
down the theory that the ability of the actor to freely dispose of the items
stolen at the time of apprehension is determinative as to whether the theft is consummated
or frustrated. This theory was applied again by the Court of Appeals some 15
years later, in
As noted earlier, the appellate court
admitted it found “no substantial variance” between Diño and Flores
then before it. The prosecution in
Synthesis of the Diño and Flores rulings
is in order. The determinative characteristic as to whether the crime of theft was
produced is the ability of the actor “to freely dispose of the articles stolen,
even if it were only momentary.” Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, “es
preciso que so haga en circunstancias tales que permitan al sustractor de
aquella, siquiera sea mas o menos momentaneamente.” The qualifier “siquiera
sea mas o menos momentaneamente” proves another important consideration, as
it implies that if the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the
stolen items in both cases were retrieved from the actor before they could be
physically extracted from the guarded compounds from which the items were
filched. However, as implied in
In his commentaries, Chief Justice
Aquino makes the following pointed observation on the import of the Diño ruling:
There
is a ruling of the Court of Appeals that theft is consummated when the thief is
able to freely dispose of the stolen articles even if it were more or less
momentary. Or as stated in another case[[69]],
theft is consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of the thing
whereby the thief places it under his control and in such a situation that he
could dispose of it at once. This
ruling seems to have been based on Viada’s opinion that in order the theft may
be consummated, “es preciso que se haga en circumstancias x x x [[70]]”[71]
In the same commentaries, Chief
Justice Aquino, concluding from Adiao
and other cases, also states that “[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with intent
to appropriate the same, although his act of making use of the thing was
frustrated.”[72]
There are at least two other Court of
Appeals rulings that are at seeming variance with the Diño and Flores rulings. People v. Batoon[73] involved an accused who filled a
container with gasoline from a petrol pump within view of a police detective,
who followed the accused onto a passenger truck where the arrest was made.
While 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 U.S. [v.] Adiao x x x and
U.S. v. Sobrevilla x x x indicate
that actual taking with intent to gain is enough to consummate the crime of
theft.”[74]
In People v. Espiritu,[75]
the accused had removed nine pieces of hospital linen from a supply depot and
loaded them onto a truck. However, as the truck passed through the checkpoint,
the stolen items were discovered by the Military Police running the checkpoint.
Even though those facts clearly admit to similarity with those in Diño, the Court of Appeals held that the
accused were guilty of consummated theft, as the accused “were able to take or
get hold of the hospital linen and that the only thing that was frustrated,
which does not constitute any element of theft, is the use or benefit that the
thieves expected from the commission of the offense.”[76]
In pointing out the distinction
between Diño and Espiritu, Reyes wryly observes that “[w]hen the meaning of an
element of a felony is controversial, there is bound to arise different rulings
as to the stage of execution of that felony.”[77]
Indeed, we can discern from this survey of jurisprudence that the state of the
law insofar as frustrated theft is concerned is muddled. It fact, given the
disputed foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in the first
place.
IV.
The Court in 1984 did finally rule
directly that an accused was guilty of frustrated, and not consummated, theft.
As we undertake this inquiry, we have to reckon with the import of this Court’s
1984 decision in Empelis v. IAC.[78]
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 gathering and tying
some coconuts. The accused were surprised by the owner within the plantation as
they were carrying with them the coconuts they had gathered. The accused fled
the scene, dropping the coconuts they had seized, and were subsequently
arrested after the owner reported the incident to the police. After trial, the
accused 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 the
theft was qualified, following Article 310 of the Revised Penal Code,[79] but
further held that the accused were guilty only of frustrated qualified theft.
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 parties. What
does appear, though, is that the disposition of that issue was contained in
only two sentences, which we reproduce in full:
However,
the crime committed is only frustrated qualified theft 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 timely arrival of the owner.[80]
No
legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish authorities who may have bolstered the
conclusion. There are indeed evident problems with this formulation in Empelis.
Empelis held that the crime was only
frustrated because the actors “were not
able to perform all the acts of execution which should have produced the
felon as a consequence.”[81]
However, per Article 6 of the Revised Penal Code, the crime is frustrated “when the offender performs all the acts of
execution,” though not producing the felony as a result. If the offender
was not able to perform all the acts of execution, the crime is attempted,
provided that the non-performance was by reason
of some cause
or accident other than
spontaneous desistance. Empelis concludes that the
crime was
frustrated because not all of the acts
of execution were performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts
were not performed because of the timely arrival of the owner, and not because
of spontaneous desistance by the offenders.
For
these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two
sentences we had cited actually aligned with the definitions provided in
Article 6 of the Revised Penal Code, such passage bears no reflection that it
is the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were sourced
from an indubitable legal premise so settled it required no further
explication.
Notably,
Empelis has not since been reaffirmed
by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can contribute to our present
debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent
for frustrated theft, its doctrinal value is extremely compromised by the
erroneous legal premises that inform it, and also by the fact that it has not
been entrenched by subsequent reliance.
Thus,
Empelis does not compel us that it is
an insurmountable given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of frustrated theft, it
cannot present any efficacious argument to persuade us in this case. Insofar as
Empelis may imply that convictions
for frustrated theft are beyond cavil in this jurisdiction, that decision is
subject to reassessment.
V.
At
the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was then in
place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
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 voluntad de su dueño.
2. Los que encontrándose una cosa perdida y
sabiendo quién es su dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren
los frutos u objeto del daño causado, salvo los casos previstos en los artίculos
606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo
párrafo
It was under the ambit of the 1870 Codigo
Penal that the aforecited Spanish Supreme Court decisions were handed down.
However, the said code would be revised again in 1932, and several times
thereafter. In fact, under the Codigo
Penal Español de 1995, the crime of theft is now simply defined as “[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será
castigado”[82]
Notice that in the 1870 and 1995
definition of theft in the penal code of
The oft-cited Salvador Viada adopted
a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de
España. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in
Diño was actually utilized by Viada
to answer the question whether frustrated or consummated theft was committed “[e]l
que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido,
la arroja al suelo.”[83]
Even as the answer was as stated in Diño,
and was indeed derived from the 1888 decision of the Supreme Court of Spain,
that decision’s factual predicate occasioning the statement was apparently very
different from Diño, for it appears
that the 1888 decision involved an accused who was surprised by the employees
of a haberdashery as he was abstracting a layer of clothing off a mannequin, and
who then proceeded to throw away the garment as he fled.[84]
Nonetheless, Viada does not contest
the notion of frustrated theft, and willingly recites decisions of the Supreme
Court of Spain that have held to that effect.[85] A
few decades later, the esteemed Eugenio Cuello Calón pointed out the
inconsistent application by the Spanish Supreme Court with respect to
frustrated theft.
Hay frustración cuando los reos fueron
sorprendidos por las guardias cuando llevaban los sacos de harino del carro que
los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se
realizó la sustracción que impidió pudieran los reos disponer de lo sustraído,
30 de octubre 1950. Hay "por lo menos" frustración, si existe
apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos
fallos han considerado la existencia de frustración cuando, perseguido el
culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es
admissible, éstos, conforme a lo antes expuesto, son hurtos consumados.[86]
Ultimately, Cuello Calón attacked the
very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada
considera que el hurto se consuma cuando la cosa queda de hecho a la disposición
Cuello Calón’s submissions cannot be lightly
ignored. Unlike Viada, who was content with replicating the Spanish Supreme
Court decisions on the matter, Cuello Calón actually set forth his own thought
that questioned whether theft could truly be frustrated, since “pues es muy dificil que el que hace cuanto
es necesario para la consumación
This divergence of opinion convinces
us, at least, that there is no weighted force in scholarly thought that obliges
us to accept frustrated theft, as proposed in Diño and Flores. A final
ruling by the Court that there is no crime of frustrated theft in this
jurisdiction will not lead to scholastic pariah, for such a submission is
hardly heretical in light of Cuello Calón’s position.
Accordingly, it would not be
intellectually disingenuous for the Court to look at the question from a fresh
perspective, as we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is capable of
commission in its frustrated stage. Further, if we ask the question whether
there is a mandate of statute or precedent that must compel us to adopt the Diño and
V.
The foremost predicate that guides us
as we explore the matter is that it lies in the province of the legislature,
through statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the sovereign
people, which determines which acts or combination of acts are criminal in
nature. Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language of the
law as it defines the crime. It is Congress, not the courts, which is to define
a crime, and ordain its punishment.[88] The
courts cannot arrogate the power to introduce a new element of a crime which
was unintended by the legislature, or redefine a crime in a manner that does
not hew to the statutory language. Due respect for the prerogative of Congress
in defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a “narrow interpretation” is
appropriate. “The Court must take heed of language, legislative history
and purpose, in order to strictly determine the wrath and breath of the conduct
the law forbids.”[89]
With that in mind, a problem clearly
emerges with the Diño/Flores dictum. The ability of the offender to
freely dispose of the property stolen is not a constitutive element of the
crime of theft. It finds no support or extension in Article 308, whether as a
descriptive or operative element of theft or as the mens rea or actus
Such factor runs immaterial to the
statutory definition of theft, which is the taking, with intent to gain, of
personal property of another without the latter’s consent. While the Diño/Flores
dictum is considerate to the mindset of the offender, the statutory
definition of theft considers only the perspective of intent to gain on the
part of the offender, compounded by the deprivation of property on the part of
the victim.
For the purpose of ascertaining
whether theft is susceptible of commission in the frustrated stage, the
question is again, when is the crime of theft produced? There would be all but
certain unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the deprivation from the
owner alone has already ensued from such acts of execution. This conclusion is
reflected in Chief Justice Aquino’s commentaries, as earlier cited, that “[i]n
theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act
of making use of the thing was frustrated.”[91]
It might be argued, that the ability
of the offender to freely dispose of 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 control over the stolen item. But even if this were
correct, the effect would be to downgrade the crime to its attempted, and not
frustrated stage, for it would mean that not all the acts of execution have not
been completed, the “taking not having been accomplished.” Perhaps this point
could serve as fertile ground for future discussion, but our concern now is
whether there is indeed a crime of frustrated theft, and such consideration
proves ultimately immaterial to that question. Moreover, such issue will not
apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent
to gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that
unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same.[92]
And long ago, we asserted in People v.
x x x [T]he most
fundamental notion in the crime of theft is the taking of the thing to be
appropriated into the physical power of the thief, which idea is qualified by
other conditions, such as that the taking must be effected animo lucrandi
and without the consent of the owner; and it will be here noted that the
definition does not require that the taking should be effected against the will
of the owner but merely that it should be without his consent, a distinction of
no slight importance.[94]
Insofar as we consider the present
question, “unlawful taking” is most material in this respect. Unlawful taking, which is the deprivation of
one’s personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
With these considerations, we can
only conclude that under Article 308 of the Revised Penal Code, theft cannot have
a frustrated stage. Theft can only be attempted or consummated.
Neither Diño nor Flores
can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has
been produced as there has been deprivation of property. The presumed inability
of the 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.
Moreover, as is evident in this case,
the adoption of the rule —that the inability of the offender to freely dispose
of the stolen property frustrates the theft — would introduce a convenient
defense for the accused which does not
reflect any legislated intent,[95] since
the Court would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy classification.
It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the
psychological belief of the offender at the time of the commission of the
crime, as implied in Diño?
Or, more likely, the appreciation of
several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people
present at the scene of the crime, the number and identity of people whom the
offender is expected to encounter upon fleeing with the stolen property, the
manner in which the stolen item had been housed or stored; and quite frankly, a
whole lot more. Even the fungibility or edibility of the stolen item would come
into account, relevant as that would be on whether such property is capable of
free disposal at any stage, even after the taking has been consummated.
All these complications will make us
lose sight of the fact that beneath all the colorful detail, the owner was
indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft
were recognized, for therein, all of the acts of execution, including the
taking, have been completed. If the facts establish the non-completion of the
taking due to these peculiar circumstances, the effect could be to downgrade the
crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
Maybe the Diño/Flores rulings
are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions
on theft have not been designed in such fashion as to accommodate said rulings.
Again, there is no language in Article 308 that expressly or impliedly allows
that the “free disposition of the items stolen” is in any way determinative of
whether the crime of theft has been produced. Diño itself did not rely on Philippine laws or jurisprudence to
bolster its conclusion, and the later
We thus conclude that under the
Revised Penal Code, there is no crime of frustrated theft. As petitioner has
latched the success of his appeal on our acceptance of the Diño and Flores rulings,
his petition 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 not detract from
the correctness of this conclusion. It will take considerable amendments to our
Revised Penal Code in order that frustrated theft may be recognized. Our
deference to Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED.
Costs against petitioner.
SO ORDERED.
DANTE
O. TINGA
Associate
Justice
WE CONCUR:
REYNATO S. PUNO
LEONARDO A. QUISUMBING Associate
Justice |
CONSUELO YNARES-SANTIAGO Associate Justice |
ANGELINA SANDOVAL-GUTIERREZ Associate
Justice |
ANTONIO T. CARPIO Associate Justice |
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
RENATO C. CORONA Associate Justice |
CONCHITA CARPIO MORALES Associate
Justice |
ADOLFO S. AZCUNA Associate Justice |
MINITA V. CHICO-NAZARIO Associate
Justice |
CANCIO C. GARCIA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate
Justice |
ANTONIO EDUARDO B. NACHURA Associate
Justice |
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the
Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.
REYNATO S. PUNO
Chief Justice
[2]Not accounting for those unpublished or unreported decisions, in the one hundred year history of this Court, which could no longer be retrieved from the Philippine Reports or other secondary sources, due to their wholesale destruction during the Second World War or for other reasons.
[3]See People
v. Adiao, infra. There have been
a few cases wherein the Court let stand a conviction for frustrated theft, yet
in none of those cases was the issue squarely presented that theft could be
committed at its frustrated stage. See People
v. Abuyen, 52 Phil. 722 (1929); People
v.
It would indeed be error to perceive that convictions for frustrated theft are traditionally unconventional in this jurisdiction, as such have routinely been handed down by lower courts, as a survey of jurisprudence would reveal. Still, the plain fact remains that this Court , since Adiao in 1918, has yet to directly rule on the legal foundation of frustrated theft, or even discuss such scenario by way of dicta.
In
passing, we take note of a recent decision of the Court of Appeals in People v. Concepcion, C.A. G.R. CR No. 28280, 11 July 2005 (See at http://ca.supremecourt.gov.ph
/cardis/CR28280.pdf), where the appellate court affirmed a conviction for
frustrated theft, the accused therein having been caught inside Meralco property
before he could flee with some copper electrical wire. However, in the said
decision, the accused was charged at the onset with frustrated theft, and the
Court of Appeals did not inquire why the crime committed was only frustrated
theft. Moreover, the charge for theft was not under the Revised Penal Code, but
under Rep. Act No. 7832, a special law.
[10]See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other apparent suspects. The affidavits and sworn statements that were executed during the police investigation by security guards Lago and Vivencio Yanson, by SM employee Adelio Nakar, and by the taxi driver whose cab had been hailed to transport the accused, commonly point to all six as co-participants in the theft of the detergents. It is not explained in the record why no charges were brought against the four (4) other suspects, and the prosecution’s case before the trial court did not attempt to draw in any other suspects other than petitioner and Calderon. On the other hand, both petitioner and Calderon claimed during trial that they were innocent bystanders who happened to be in the vicinity of the Super Sale Club at the time of the incident when they 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.
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 relative to these four (4) other suspects should bear no effect in the present consideration of the case.
[11]Also identified in the case record as “Rosalada” or “Rosullado.” He happened to be among the four (4) other suspects also apprehended at the scene and brought for investigation to the Baler PNP Station. See id. Rosulada also testified in court in behalf of Calderon. See Records, pp. 357-390.
[13]A person who was neither among the four (4) other suspects (see note 6) nor a witness for the defense.
[21]
[22]A
motion for reconsideration filed by petitioner was denied by the Court of
Appeals in a Resolution dated
[23]Rollo, pp. 8-15.
[24]
[28]6
[29]See e.g., L.B. Reyes, I The Revised Penal Code: Criminal Law (13th ed., 2001), at 112-113 and R. Aquino, I The Revised Penal Code (1997 ed.), at 122.
[31]See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the subjective phase as “that point where [the offender] still has control over his acts, including their (acts’) natural course.” See L.B. Reyes, I The Revised Penal Code: Criminal Law (13th Ed., 2001), at 101.
[33]See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.
[35]People v. Pacana, 47 Phil. 48 (1925);
cited in Aquino, supra note 29, at 39. See also Lecaroz v. Sandiganbayan, 364 Phil. 890,
905 (1999).
[39]City of
[40]J.
Feliciano, Concurring and Dissenting, Umil
v. Ramos, G.R. No. 81567,
[41]See
also Revised Penal Code, Art.
310, which qualifies theft with a penalty two degrees higher “if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the premises of the
plantation or fish taken from a fishpond or fishery, or if property is taken on
the occasion of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance.”
[42]See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing People v. Sison, 322 SCRA 345, 363-364 (2000).
[46]Section 1(2) of the Theft Act of 1968 states: “It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.” Sir John Smith provides a sensible rationalization for this doctrine: “Thus, to take examples from the old law, if D takes P’s letters and puts them down on a lavatory or backs P’s horse down a mine shaft, he is guilty of theft notwithstanding the fact that he intends only loss to P and no gain to himself or anyone else. It might be thought that these instances could safely and more appropriately have been left to other branches of the criminal law—that of criminal damage to property for instance. But there are cases where there is no such damage or destruction of the thing as would found a charge under another Act. For example, D takes P’s diamond and flings it into a deep pond. The diamond lies unharmed in the pond and a prosecution for criminal damage would fail. It seems clearly right that D should be guilty of theft.” J. Smith, Smith & Hogan Criminal Law (9th ed., 1999), at 534.
[49]People
v. Galang,
[50]People
v.
[51]REgalado, supra note 47 at 521 citing Villacorta
v. Insurance Commission, G.R. No. 54171, 28 October 1980, 100 SCRA 467; Association
of Baptists for World Evangelism v. Fieldmen’s Ins. Co., No. L-28772,
[52]The
distinction being “inconsequential” if the criminal charge is based on a
special law such as the Dangerous Drugs Law. See e.g., People v. Enriquez,
G.R. No. 99838,
[55]
[58]Supra note 4 at 227.
[62]
[65]
[67]
[76]Note the similarity between this holding and the observations of Chief Justice Aquino in note 72.
[79]“Revised Penal
Code, Art. 310 states that the
crime of theft shall "be punished by the penalties next higher by two
degrees than those respectively expressed in the next preceding article x x x if
the property stolen x x x consists of coconuts taken from the premises of a
plantation, x x x." Thus, the stealing of coconuts when they are still in
the tree or deposited on the ground within the premises is qualified theft.
When the coconuts are stolen in any other place, it is simple theft. Stated
differently, if the coconuts were taken in front of a house along the highway
outside the coconut plantation, it would be simple theft only.
[In
the case at bar, petitioners were seen carrying away fifty coconuts while they
were still in the premises of the plantation. They would therefore come within
the definition of qualified theft because the property stolen consists of
coconuts “taken from the premises of a plantation.”] Empelis v. IAC, supra note 5, at 379, 380.
[82]Art. 234,
Código Penal Español de 1995. See Ley
Orgánica 10/1995, de 23 de noviembre,
By
way of contrast, the Theft Act 1968 of Great Britain defines theft in the
following manner: “A person is guilty of theft if he dishonestly appropriates
property belonging to another with the intention of permanently depriving the
other of it; and ‘thief’ and ‘steal’ shall be construed accordingly.” See Section 1(1), Theft Act 1968 (
[83]1 S. Viada, Codigo Penal Reformado de 1870 (1926 ed) at 103.
[84]“Considerando
que según se desprende de la sentencia recurrida, los dependientes de la
sastrería de D. Joaquin Gabino sorprendieron al penado Juan Gomez Lopez al
tomar una capa que había en un maniquí, por lo que hubo de arrojarla al suelo,
siendo detenido despues por agentes de la Autoridad yque esto supuesto es
evidente que el delito no aparece realizado en toda la extensión precisa para
poderlo calificar como consumado, etc.”
[85]The other examples cited by Viada of frustrated theft are in the case where the offender was caught stealing potatoes off a field by storing them in his coat, before he could leave the field where the potatoes were taken, see Viada (supra note 83, at 103), where the offender was surprised at the meadow from where he was stealing firewood, id.
[88]Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United States v. Wiltberger, 18 U.S. 76 (1820).
[89]Laurel
v. Abrogar, G.R. No. 155076,
[92]People
v. Obillo, 411 Phil. 139, 150
(2001); People v. Bernabe, 448 Phil.
269, 280 (2003); People v. Bustinera, supra note 42 at 295.