9999997878
directly every act or omission constituting an offense
DOCTRINE: The general rule is that, only movable
properties which have physical or material existence
and 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.
G.R. No. 155076 February 27, 2006
LUIS MARCOS P. LAUREL, Petitioner, vs. HON.
ZEUS C. ABROGAR, Presiding Judge of the Regional
Trial Court, Makati City, Branch 150, PEOPLE OF
THE PHILIPPINES& PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY, Respondents.
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 patterns 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 air wave 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 seach 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.
Accused Laurel filed a "Motion to Quash (with Motion
to Defer Arraignment)" on the groundS that RPC does
not punish 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
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:
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.
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 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 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 of 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 personal property even if for a short time; or if
such property is under the dominion and control of the thief.
The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property
adverse to the rights of the owner or the lawful possessor
thereof.t 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 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 of taking since they
can be appropritated.
Business and services cannot be taken thus, not a
subject of theft. They both have different definitions.
RPC could not 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 of
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.
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, 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 a
mandatory imprisonment of six (6) months to three (3)
years.

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 of 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