VOL.

90, JUNE 15, 1979 565

Theft In General And The Circumstances That Make It
Qualified

ANNOTATION

THEFT IN GENERAL AND THE CIRCUMSTANCES

THAT MAKE IT QUALIFIED
By
Prof. LOHEL A. MARTIREZ

§ 1. What is Theft? p. 566.

§ 2. Penalties, p. 568.
§ 3. Theft distinguished from Robbery, Estafa, p.
570.
§ 4. Qualified Theft, p. 571.

————

Theft is one of man’s weaknesses since the dawn of day.

Even the Holy Scriptures is replete with testaments on
thieveries down to the times of the Conquerors up to to-
day. Books were written, novels making bestsellers with
their themes centering on the lives and escapades of
thieves to the full enjoyment of the readers much more
when seen in the television and in the movies. But
THEFT as we know in law is not a matter of
entertainment. Thievery is a curse to society. At times this
writer thinks about going back to the practices of punishing
thieves in the days of Kalantiaw if only to give lasting
lessons—what, with the almost unabatted “pickpockets”
within our midst that even the police authorities seemed
unable to contain or eradicate.
The case now under annotation is entitled THE
PEOPLE OF THE PHILIPPINES as Plaintiff-Appellee, vs.
LEONARDO DAHIL, Defendant-Appellant. It was
promulgated on June 15, 1979 under G.R. No. L-30271.

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Theft In General And The Circumstances That Make It
 Qualified

§ 1. What is Theft?

Article 308 (Revised Penal Code). 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.
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
fruits, cereals, or other forest or farm products.

In People vs. De Leon, 49 Phil. 437, cited in Padilla:

Criminal Law, the crime of theft is an offense against
personal properly and what is punished is the alarm
caused in the community by the perpetration of the act
which is violative of the individual rights guaranteed by
the law, as well as the damage that said act may occasion
to the community.
The elements of the crime of theft under paragraph 1 of
the afore-mentioned legal provision are:

1. Intent of gain;
2. Unlawful taking;
3. Personal property belonging to another;
4. Absence of violence or intimidation against persons
or force upon things.

Thus, in the commission of theft as in the commission of

robbery, the same elements are required with the sole
difference that theft is committed without violence against
or intimidation of persons and without that kind of force
upon things defined in cases of robbery. The taking in
theft is “without the consent,” while in robbery it may be
said to be “against the will” of the owner or possessor, (See
Padilla, Criminal Law, p. 722)

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In People vs. Mercado, 65 Phil. 665, the Supreme Court

held: The elements of theft in this jurisdiction are: First,
taking away of personal property; second, that the
property belongs to another; third, that the taking must be
with intent to gain; fourth, that it is done without the
consent of the owner; and fifth, that there is no violence or
intimidation against persons, or force upon things. It is not
an indispensable requisite of theft that the picpocket or
thief carry, more or less far away, the thing taken by him
from its owner.
By gain is meant not only the acquisition of a thing
useful to the purposes of life but also the benefit which in
any other sense may be derived or expected from the act
which is performed. (People vs. Fernandez, et al., (C.A.) 38
O.G. 985.) Is the taking of permanent character? There
seems to be no need of pressing to much the proposition
that the element of “taking” referred to in the law means
the act of depriving another of the possession and dominion
of a movable thing coupled, like in crimes of abduction,
with the intention, at the time of the “taking,” of
withholding it with character of permanency. (People vs.
Galang, et al., VIII ACR 11) And where only the physical
possession and not the juridical possession is transferred,
the taking or appropriation of the thing is theft and not
estafa. (People vs. De Vera, 43 Phil. 1000; People vs.
Trinidad, 50 Phil. 65) For the element of “taking” referred
to in the law, means the act of depriving another of the
possession and dominion of movable property. The
unlawful “taking” or deprivation may occur at or soon after
the transfer of physical possession. In other words, the
actual transfer of possession may not always and by itself
constitute the unlawful taking, but an act done soon
thereafter by the offender may result in unlawful taking or
asportation. In such a case, the article was taken away, not
received, although at the beginning the article was in fact
given and received. (People vs. Roxas, et al., G.R. No.
14953)
In a juridical sense, the consummation of the crime of
theft (or robbery) takes place upon the voluntary and
malicious taking of the 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
situation as he could dispose of it at once. (People vs.
Naval, et al., (C.A.) 46 O.G. 2641)

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Theft In General And The Circumstances That Make It
Qualified

The true test of what is a proper subject of larceny seems to

be not whether the subject is corporeal or incorporeal, but
whether it is capable of appropriation by another than the
owner. (U.S. vs. Carlos, 21 Phil. 553)
It is not an element of the crime of theft that the
culprit knows the owner of the thing stolen, the crime being
consummated provided the thing belongs to another and
the same is taken with intent to gain. (Decision of the
Supreme Court of Spain. Cited in People vs. De Leon, 49
Phil. 437) Neither is it necessary for the existence of the
crime of theft that it should appear in a specific manner
who the owner of the thing stolen, because the law does not
require it nor does it affect the criminal liability, but only
the restitution or indemnification of damages, which are
merely of a civil nature. What constitutes the crime of
theft is the taking of another’s property with intent to gain
without the consent of the owner, so that after the
unlawful act of taking another’s property is proven, it is
evident that all the elements mentioned in the Penal Code
exists.

§ 2. Penalties

Article 309. Penalties.—Any person guilty of theft shall be

punished by:

1. The penalty of prision mayor in its minimum and

medium periods, if the value of the thing stolen is
more than 12,000 pesos but does not exceed 22,000
pesos; but if the value of the thing stolen exceeds
the latter amount, the penalty shall be the
maximum period of the one prescribed in this
paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which
may be imposed shall not exceed twenty years. In
such cases, and in connection with the accessory
penalties which may be imposed and for the
purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion
temporal, as the case may be.
2. The penalty of prision correccional in its medium
and maximum periods, if the value of the thing
stolen is more than 6,000 pesos but does not exceed
12,000 pesos.

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Theft In General And The Circumstances That Make It
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3. The penalty of prision correccional in its minimum

and medium periods, if the value of the property
stolen is more than 200 pesos but does not exceed
6,000 pesos.
4. Arresto Mayor in its medium period to prision
correccional in its minimum period, if the value of
the property stolen is over 50 pesos but does not
exceed 200 pesos.
5. Arresto Mayor to its full extent, if such value is over
5 pesos but not exceed 50 pesos.
6. Arresto Mayor in its minimum and medium
periods, if such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if
the theft is committed under the circumstances
enumerated in paragraph 3 of the next preceding
article and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds said amount,
the provisions of any of the five preceding
subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not
exceeding 50 pesos, when the value of the thing
stolen is not over 5 pesos, and the offender shall
have acted under the impulse of hunger, poverty, or
the difficulty of earning livelihood for the support of
himself or his family.

According to Viada, there are five essential elements of

theft: (1) Taking of personal property; (2) the property
taken must belong to another; (3) the taking must be done
with intent to gain; (4) it must be done without the owner’s
consent; and (5) it must be accomplished without the use of
violence or intimidation against persons or of force upon
things.
Larceny consists in furtive taking and asportation of
property animo lucrandi and with intent to deprive the
true owner of possession thereof. After commission of the
offense is completed, abandonment of part of the stolen
property does not render the thief less liable. Hence the
theft of an automobile involves its whole value though the
thief abandoned the car after appropriating the tires and
rims only. (People vs. Carpio, 54 Phil. 48)
A postmaster who, having received a C.O.D. package of
pamphlets from the “Little Leather Library” of New York,
which could be opened at one end, carries it out of the office

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Theft In General And The Circumstances That Make It
Qualified

to his home for some one to look at, cannot be convicted of

theft in view of the fact that there was no evidence that
he acted with intent of gain. Defendant acquitted. (People
vs. Agnis, 47 Phil. 945)
The act of taking two roosters in the same place and on
the same occasion though the roosters belonged to two
different owners cannot give rise to two crimes having
independent existence, because there were not two distinct
appropriations, nor two intentions that characterize two
separate crimes. (People vs. De Leon 49 Phil. 437)

§ 3. Theft distinguished from Robbery, Estafa

The most characteristic difference between robbery and

theft is that in the former violence or intimidation is
employed toward the person robbed or force upon the thing
is taken, while in the latter no such means are used.
Furthermore, in commission of robbery from the person it
is necessary that the taking is against the will of the
owner; in the case of theft from the person it suffices that
the consent of the person is lacking. (People vs. Chan Wat,
49 Phil. 114)
Upon the information charging robbery the lower court
is right in convicting defendant of theft, without proof of
the manner he entered the house, as that crime is
necessarily included in the more serious crime. (U.S. vs.
Birueda, 4 Phil. 229)
As to whether a crime is theft or estafa, it has been
suggested that one of the essential elements of theft is
that the intent to misappropriate the property taken must
exist at the time of the asportation. (U.S. vs. De Vera, 43
Phil. 1000) Where property is taken to pledge for the owner
and the agent sells it, appropriating the money, the crime
should not be regarded as theft unless the circumstances
are such that it must be presumed that the intent to
convert or misappropriate the property existed at the time
it was received by the perpetrator of the crime; but this
intent is shown where the sale takes place immediately
after its delivery to the offender as then no honest
intention can be presumed, but the disposal made was in
her mind at the time she took the property. (People vs.
Trinidad, 50 Phil. 65)

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Qualified

Commentators on the Spanish Penal Code lay great stress

on the taking away, that is, getting possession in theft
laying hold of the thing, so that if the thing is not taken
away, but received and then appropriated or converted,
without consent of the owner, it may be any other crime,
that of estafa for instance. (People vs. Locson, 57 Phil. 325)
The owner of a ring, without intent of parting with it,
delivered it to another person expecting its immediate
return; the third person took the ring, went away and
concealed himself. This is theft, not estafa. If defendant
had explained how he obtained possession and why he
failed to return it, there might be some merit in his
contention that the crime was estafa. (People vs. Alegada,
47 Phil. 353.)
The defendant received a ring for the purpose of
pledging it for the offended party so as to obtain P500.
Instead of pledging it defendant immediately sold it to a
neighbor for P30, which she appropriated to her own use.
Held: The judicial possession did not pass to the defendant
but remained in the original owner, and defendant was
only the agent of the owner, not a bailee; and therefore the
crime committed was theft, not estafa. (17 R.C.L. 15, 16)
The taking of pawn tickets payable to bearer without the
owner’s consent, with intent to gain, and without violence
or intimidation against persons, or force against things,
constitutes the crime of theft. But the redemption of
pawned jewels by means of pawn tickets and pretends to
own the jewels, availing himself of the numbers of said
tickets to identify the jewels, but without presenting the
aforesaid tickets, constitutes the crime of estafa.

§ 4. Qualified Theft

Article 310. Qualified theft.—The crime of theft shall be

punished by the penalties next higher by two degrees than
those respectively specified in the next preceding article, 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 a plantation, or fish taken from a fishpond
or fishery. (As
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Theft In General And The Circumstances That Make It
Qualified
amended by Com. Acts Nos. 273 and 417, and Rep. Act No.
120)
Commonwealth Act No. 273 added that “The maximum
period of the penalty prescribed shall be imposed if the
property stolen is large cattle.” Commonwealth Act No. 417
included “mail matter.” Republic Act No. 120, inspired by a
desire to minimize frequent thefts of jeeps, automobiles,
and other like conveyances, increased the number of
personal property embraced in the article by inserting
“motor vehicle.” Qualified theft covers motor vehicle, mail
matter, large cattle, coconuts and fish, with a penalty two
degrees higher. The term “large cattle” includes carabaos,
horses, bulls, mules, asses and all members of the bovine
family. (U.S. vs. Mauhay, 31 Phil. 513; U.S. vs. Billedo, 32
Phil. 574; U.S. vs. Sangkupang, 36 Phil. 348; U.S. vs.
Tegrado, 36 Phil. 789; U.S. vs. Javier, 37 Phil. 449) (Cited
in Criminal Law, Padilla)
The information alleged that the accused acted with
grave abuse of confidence in committing the crime being a
domestic (houseboy) in the house of the complainant. This
allegation that the accused was a domestic and had acted
with abuse of confidence qualifies the theft committed. The
accused having pleaded guilty to the facts alleged in the
information, the sentence of qualified theft is legal.
(People vs. Evangelista, 70 Phil. 122)
While this fact constitutes a certain abuse of confidence,
because living together under the same roof, although
accidentally, engenders some confidence, it is not
necessarily grave, there being no allegation in the
information of another relation, by reason of dependence,
guardianship or vigilance, between the accused and the
offended party, that might create a higher degree of
confidence between them, which the accused could abuse.
(People vs. Koc Song, 63 Phil. 369)
The decision of the Court of Appeals is erroneous insofar
as it held that the theft charged is not qualified by the
circumstance of grave abuse of confidence. Upon his
request, the appellant was admitted to sleep upstairs of the
barbershop where the offended party slept and where the
trunk from which he took the amount of P10.20 was found.
This, on the part of the offended party, implied confidence
which the appellant

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gravely abuse. In People vs. Syou Hu (65 Phil. 270), where
the accused lived in the house of the offended party who
gave him shelter out of charity, this court held that in
taking the money of his benefactor, the accused gravely
abused the confidence reposed in him when, from charity,
he was permitted to lodge in the house. The accused
having been gratuitously and generously admitted in the
house of the offended party, in taking the latter’s money,
he gravely abused the confidence reposed in him when he
was received and sheltered in good faith in the offended
party’s house. (Mariano vs. People, 68 Phil. 724)
The grave abuse of confidence does not produce the
crime of theft as effect. It is the asportation, with intent to
gain, of personal property belonging to another without the
owner’s knowledge and consent, which produces it. The
relation of cause and effect, therefore, does not exist
between the two concepts. The grave abuse of confidence is
a mere circumstance which aggravates and qualifies the
commission of the crime of theft. It is not necessary for
said circumstance to be premeditated in order to be taken
into consideration as an aggravating circumstance
qualifying said crime. Its presence in the commission of the
crime is sufficient. The fact that the accused was living in
the house of the offended party, who had sheltered him out
of charity, when he took the money belonging to his
protector, aggravates the crime committed by him,
inasmuch as he gravely abused the confidence which the
owner of the house reposed in him upon permitting him,
out of charity, to live therein, stifling the sentiment of
gratitude awakened in his bosom by his benefactor’s
charitable act. (People vs. Syou Hu, 65 Phil. 270)
The confidence contemplated in Art. 310 of the Revised
Penal Code is that existing between the offended and the
offender. In fact, the grave abuse of “relation, by reason of
dependence, guardianship or vigilance, between the
accused and the offended party, that might create a higher
degree of confidence between them, which the accused
could abuse.” (People vs. Cabahug, (C.A.) 48 O.G. 2818)
Where the passenger jeepney was received by the
accused as driver under the so-called “boundary system”,
the accused

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Qualified

was not a hirer or lessee but only an employee or agent of

the owner, and although he had physical or material
 possession of the jeepney, the juridical possession thereof
remained in the owner, and consequently his disposal of
the jeepney with intent of gain and without the consent of
its owner made him guilty of qualified theft. (People vs.
Aviles, (CA) 59 O.G. 1570)
The money in this case was in the possession of the
defendant as receiving teller of the bank, and the
possession of defendant was the possession of the bank.
When the defendant, with grave abuse of confidence,
removed the money and appropriated it to his own use
without consent of the bank, there was taking or
apoderamiento in the definition of qualified theft. (People
vs. Locson, 57 Phil. 325)
The accused is properly convicted of the crime of theft of
large cattle. The legal possession of the animal was in the
offended party. The possession as a mere herdsman by the
accused was merely physical. It has already been decided
that a shepherd could be stealing sheep entrusted to his
care by the owner. (People vs. Bangay, (CA) 40 O.G. 772)
The offense is merely simple theft and not qualified
theft. The theft is qualified if the coconuts be taken from
the trees, or removed from the coconut grove. What the law
penalizes with more severity is the theft of coconuts under
the above circumstances. The purpose of the heavier
penalty is to encourage and protect the development of the
coconut industry as one of the sources of our national
economy. When the coconut is taken at a place far from the
tree, the crime is simple theft. (People vs. Esmillio, (CA) 40
O.G. (Sup. 11) 111).

——o0o——

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