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Laurel v. Abrogar
Laurel v. Abrogar
Criminal Law; Theft; Elements of theft.—The elements of
theft under Article 308 of the Revised Penal Code are as follows:
(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.
Same; Same; Property; The only requirement for a personal
property to be the object of theft under the Penal Code is that it be
capable of appropriation.—The only requirement for a personal
property to be the object of theft under the penal code is that it be
capable of appropriation. It need not be capable of “asportation,”
which is defined as “carrying away.” Jurisprudence is settled that
to “take” under the theft provision of the penal code does not
require asportation or carrying away. To appropriate means to
deprive the lawful owner of the thing. The word “take” in the
Revised Penal Code in-
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** Per Special Order No. 545, dated December 16, 2008, signed by Chief
Justice Reynato S. Puno, designating Associate Justice Minita V. Chico-Nazario to
replace Associate Justice Renato C. Corona, who is on leave.
* EN BANC.
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claim that such telephone calls were taken without its consent. 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.
Same; Same; Same; The business of providing telecommunication
and the telephone service are personal property under Article 308
of the Revised Penal Code (RPC), and the act of engaging in
International Simple Resale (ISR) is an act of “subtraction”
penalized under said article.—The business of providing
telecommunication and the telephone service are personal
property under Article 308 of the Revised Penal Code, and the act
of engaging in ISR
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RESOLUTION
YNARES-SANTIAGO, J.:
On February 27, 2006, this Court’s First Division
rendered judgment in this case as follows:
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1 Rollo, p. 728.
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SO ORDERED.
SEPARATE OPINION
CORONA, J.:
The bone of contention in this case is: who owns the
telephone calls that we make? If respondent Philippine
Long Distance Telephone Company (PLDT) can claim
ownership over them, then petitioner Luis Marcos P.
Laurel (Laurel) can be charged with theft of such telephone
calls under Article 308 of the Revised Penal Code. If PLDT
does not own them, then the crime of theft was not
committed and Laurel cannot be charged with this crime.
One view is that PLDT owns the telephone calls because
it is responsible for creating such calls. The opposing view
is that it is the caller who owns the phone calls and PLDT
merely encodes and transmits them.
The question of whether PLDT creates the phone calls
or merely encodes and transmits them is a question of
fact that can be answered by science. I agree with Justice
Consuelo Ynares-Santiago that, while telephone calls “take
the form of electrical energy, it cannot be said that such
[telephone] calls were personal properties belonging to
PLDT since the latter could not have acquired ownership
over such calls. PLDT merely encodes, augments,
enhances, decodes and transmits said calls using its
complex infrastructure and facilites.”
In my view, it is essential to differentiate between the
conversation of a caller and recipient of the call, and the
telephone service that
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CONCURRING OPINION
TINGA, J.:
I do not have any substantive disagreements with the
ponencia. I write separately to flesh out one of the key
issues behind the Court’s present disposition—whether the
Philippine Long Distance Company (PLDT) can validly
claim ownership over the telephone calls made using its
telephone services. As the subject Amended Information
had alleged that petitioners had “unlawfully and
feloniously take, steal and use the international long
distance calls belonging to PLDT,” said information could
have been sustained only if its premise were accepted that
PLDT indeed owned those phone calls.
I.
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II.
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7 Id., at p. 254.
8 Id., at p. 255. Emphasis not mine.
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9 “In the Philippines, Congress has not amended the Revised Penal
Code to include theft of services or theft of business as felonies. Instead, it
approved a law, 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 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.” Laurel v. Abrogar, G.R. 155706, 27 February
2006, 483 SCRA 243.
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10See e.g. People v. Bustinera, G.R. No. 148233, 8 June 2004, 431
SCRA 284, 291, citing People v. Sison, 322 SCRA 345, 363-364 (2000).
11 “When a person speaks into a telephone, the sound waves created by
his voice enter the mouthpiece. An electric current carries the sound to the
telephone of the person he is talking to.” See How the Telephone Works, at
http://areaonline.com/phone/telworks.html.
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12 Id., at p. 273.
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