Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

L-66575 September 30, 1986 ADRIANO MANECLANG, JULIETA, RAMONA, VICTOR, ANTONINA, LOURDES, TEODORO and MYRNA, all surnamed MANECLANG, Petitioners, vs. THE INTERMEDIATE APPELLATE COURT and ALFREDO MAZA, CORLETO CASTRO, SALOME RODRIGUEZ, EDUCARDO CUISON, FERNANDO ZARCILLA, MARIANO GABRIEL, NICOMEDES CORDERO, CLETO PEDROZO, FELIX SALARY and JOSE PANLILIO, Respondents.

awardee in the public bidding of the fishpond, the parties desire to amicably settle the case by submitting to the Court a Compromise Agreement praying that judgment be rendered recognizing the ownership of petitioners over the land the body of water found within their titled properties, stating therein, among other things, that "to pursue the case, the same will not amount to any benefit of the parties, on the other hand it is to the advantage and benefit of the municipality if the ownership of the land and the water found therein belonging to petitioners be recognized in their favor as it is now clear that after the National Irrigation Administration [NIA] had built the dike around the land, no water gets in or out of the land. 1 chanrobles virtual law library The stipulations contained in the Compromise Agreement partake of the nature of an adjudication of ownership in favor of herein petitioners of the fishpond in dispute, which, as clearly found by the lower and appellate courts, was originally a creek forming a tributary of the Agno River. Considering that as held in the case of Mercado vs. Municipal President of Macabebe, 59 Phil. 592 [1934], a creek, defined as a recess or arm extending from a river and participating in the ebb and flow of the sea, is a property belonging to the public domain which is not susceptible to private appropriation and acquisitive prescription, and as a public water, it cannot be registered under the Torrens System in the name of any individual [Diego v. Court of Appeals, 102 Phil. 494; Mangaldan v. Manaoag, 38 Phil. 4551; and considering further that neither the mere construction of irrigation dikes by the National Irrigation Administration which prevented the water from flowing in and out of the subject fishpond, nor its conversion into a fishpond, alter or change the nature of the creek as a property of the public domain, the Court finds the Compromise Agreement null and void and of no legal effect, the same being contrary to law and public policy.chanroblesvirtualawlibrarychanrobles virtual law library The finding that the subject body of water is a creek belonging to the public domain is a factual determination binding upon this Court. The Municipality of Bugallon, acting thru its duly-constituted municipal council is clothed with authority to pass, as it did the two resolutions dealing with its municipal waters, and it cannot be said that petitioners were deprived of their right to due process as mere publication of the notice of the public bidding suffices as a constructive notice to the whole world.chanroblesvirtualawlibrarychanrobles virtual law library

FERNAN, J.:chanrobles virtual law library Petitioners Adriano Maneclang, et. al. filed before the then Court of First Instance of Pangasinan, Branch XI a complaint for quieting of title over a certain fishpond located within the four [41 parcels of land belonging to them situated in Barrio Salomague, Bugallon, Pangasinan, and the annulment of Resolutions Nos. 38 and 95 of the Municipal Council of BugallonPangasinan. The trial court dismissed the complaint in a decision dated August 15, 1975 upon a finding that the body of water traversing the titled properties of petitioners is a creek constituting a tributary of the Agno River; therefore public in nature and not subject to private appropriation. The lower court likewise held that Resolution No. 38, ordering an ocular inspection of the Cayangan Creek situated between Barrios Salomague Sur and Salomague Norte, and Resolution No. 95 authorizing public bidding for the lease of all municipal ferries and fisheries, including the fishpond under consideration, were passed by respondents herein as members of the Municipal Council of Bugallon, Pangasinan in the exercise of their legislative powers.chanroblesvirtualawlibrarychanrobles virtual law library Petitioners appealed said decision to the Intermediate Appellate Court, which affirmed the same on April 29, 1983. Hence, this petition for review on certiorari.chanroblesvirtualawlibrarychanrobles virtual law library Acting on the petition, the Court required the respondents to comment thereon. However, before respondents could do so, petitioners manifested that for lack of interest on the part of respondent Alfredo Maza, the

IN VIEW OF THE FOREGOING, the Court Resolved to set aside the Compromise Agreement and declare the same null and void for being contrary to law and public policy. The Court further resolved to DISMISS the instant petition for lack of merit.chanroblesvirtualawlibrarychanrobles virtual law library SO ORDERED. Feria (Chairman), Alampay, Gutierrez, Jr. and Paras, JJ., concur.

Before the respondents were able to comment on the petition, the petitioners manifested that for lack of interest on the part of respondent Alfredo Maza, the awardee in the public bidding of the fishpond, as the parties desire to amicably settle the case by submitting to the Court a Compromise Agreement praying that judgment be rendered recognizing the ownership of the petitioners over the land the body of water found within their titled properties. The Supreme Court dismissed the petition for lack of merit, and set aside

Haystack: Maneclang v. Intermediate Appellate Court (GR L-66575, 30 September 1986)

the Compromise Agreement and declare the same null and void for being contrary to law and public policy. 1. Stipulations null and void for being contrary to law and public

Maneclang v. IAC [G.R. No. L-66575. September 30, 1986.] Second Division, Fernan (J): 4 concur Facts: Adriano Maneclang, et.al., petitioners, filed before the then CFI Pangasinan (Branch XI) a complaint for quieting of title over a certain fishpond located within 4 parcels of land belonging to them situated in Barrio Salomague, Bugallon, Pangasinan, and the annulment of Resolutions 38 and 95 of the Municipal Council of Bugallon, Pangasinan. On 15 August 1975, the trial court dismissed the complaint upon a finding that the body of water traversing the titled properties is a creek constituting a tributary of the Agno River (therefore public in nature and not subject to private appropriation); and held that Resolution 38, ordering an ocular inspection of the Cayangan Creek situated between Barrios Salomague Sur and Salomague Norte, and Resolution 95 authorizing public bidding for the lease of all municipal ferries and fisheries were passed by the members of the Municipal Council of Bugallon, Pangasinan in the exercise of their legislative powers. Manaclang appealed said decision to the IAC, which affirmed the same on 29 April 1983. Hence, the petition for review on certiorari.

policy The stipulations contained in the Compromise Agreement partake of the nature of an adjudication of ownership of the fishpond in dispute, which was originally a creek forming a tributary of the Agno River. A creek, defined as a recess or arm extending from a river and participating in the ebb and flow of the sea, is a property belonging to the public domain which is not susceptible to private appropriation and acquisitive prescription (Mercado vs. Municipal President of Macabebe), and as a public water, it cannot be registered under the Torrens System in the name of any individual (Diego v. CA; Mangaldan v. Manaoag) and considering further that neither the mere construction of irrigation dikes by the National Irrigation Administration which prevented the water from flowing in and out of the subject fishpond, nor its conversion into a fishpond, alter or change the nature of the creek as a property of the public domain. The Compromise Agreement, thus, is null and void and of no legal effect, the same being contrary to law and public policy. 2. Municipal council authorized to pass laws dealing with its municipal waters The Municipality of Bugallon, acting thru its duly-constituted municipal council is clothed with authority to pass, as it did the two

resolutions dealing with its municipal waters. 3. Publication a constructive notice to the whole world; due process followed Petitioners were not deprived of their right to due process as mere publication of the notice of the public bidding suffices as a constructive notice to the whole world. TEOFILO C. VILLARICO, petitioner, vs. VIVENCIO SARMIENTO, SPOUSES BESSIE SARMIENTO-DEL MUNDO & BETH DEL MUNDO, ANDOK S LITSON CORPORATION and MARITES CARINDERIA, respondents. THIRD DIVISION [G.R. No. 136438. November 11, 2004]

by a strip of land belonging to the government. As this highway was elevated by four (4) meters and therefore higher than the adjoining areas, the Department of Public Works and Highways (DPWH) constructed stairways at several portions of this strip of public land to enable the people to have access to the highway. Sometime in 1991, Vivencio Sarmiento, his daughter Bessie Sarmiento and her husband Beth Del Mundo, respondents herein, had a building constructed on a portion of said government land. In November that same year, a part thereof was occupied by Andok sLitson Corporation and Marites Carinderia, also impleaded as respondents. In 1993, by means of a Deed of Exchange of Real Property, petitioner acquired a 74.30 square meter portion of the same area owned by the government. The property was registered in his name as T.C.T. No. 74430 in the Registry of Deeds of Paraaque City. In 1995, petitioner filed with the RTC, Branch 259, Paraaque City, a complaint for accionpublicianaagainst respondents, docketed as Civil Case No. 95-044. He alleged inter alia that respondents structures on the government land closed his right of way to the Ninoy Aquino Avenue; and encroached on a portion of his lot covered by T.C.T. No. 74430. Respondents, in their answer, specifically denied petitioner s allegations, claiming that they have been issued licenses and permits by Paraaque City to construct their buildings on the area; and that petitioner has no right over the subject property as it belongs to the government. After trial, the RTC rendered its Decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered: 1. Declaring the defendants to have a better right of possession over the subject land except the portion thereof covered by Transfer Certificate of Title No. 74430 of the Register of Deeds of Paraaque; Ordering the defendants to vacate the portion of the subject premises described in Transfer Certificate of Title No. 74430 and gives its possession to plaintiff; and

DECISION

SANDOVAL-GUTIERREZ, J.: Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals dated December 7, 1998 in CA-G.R. CV No. 54883, affirming in toto the Decision[2] of the Regional Trial Court (RTC) of Paraaque City, Branch 259, dated November 14, 1996, in Civil Case No. 95044. The facts of this case, as gleaned from the findings of the Court of Appeals, are: Teofilo C. Villarico, petitioner, is the owner of a lot in La Huerta, Paraaque City, Metro Manila with an area of sixty-six (66) square meters and covered by Transfer Certificate of Title (T.C.T.) No. 95453 issued by the Registry of Deeds, same city. Petitioner s lot is separated from the Ninoy Aquino Avenue (highway)

2.

3.

Dismissing the claim for damages of the plaintiff against the defendants, and likewise dismissing the claim for attorney s fees of the latter against the former.

III THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT ACCION PUBLICIANA IS NOT THE PROPER REMEDY IN THE CASE AT BAR. IV THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT THE EXISTENCE OF THE PLAINTIFF-APPELLANT S RIGHT OF WAY DOES NOT CARRY POSSESSION OVER THE SAME. V THE HON. COURT OF APPEALS ERRED IN NOT RESOLVING THE ISSUE OF WHO HAS THE BETTER RIGHT OF POSSESSION OVER THE SUBJECT LAND BETWEEN THE PLAINTIFF-APPELLANT AND THE DEFENDANT-APPELLEES. [5] In their comment, respondents maintain that the Court of Appeals did not err in ruling that petitioner s action for accionpublicianais not the proper remedy in asserting his right of way on a lot owned by the government. Here, petitioner claims that respondents, by constructing their buildings on the lot in question, have deprived him of his right of way and his right of possession over a considerable portion of the same lot, which portion is covered by his T.C.T. No. 74430 he acquired by means of exchange of real property. It is not disputed that the lot on which petitioner s alleged right of way exists belongs to the state or property of public dominion. Property of public dominion is defined by Article 420 of the Civil Code as follows: ART. 420. The following things are property of public dominion:

Without pronouncement as to costs. SO ORDERED. [3] The trial court found that petitioner has never been in possession of any portion of the public land in question. On the contrary, the defendants are the ones who have been in actual possession of the area. According to the trial court, petitioner was not deprived of his right of way as he could use the KapitanTinoy Street as passageway to the highway. On appeal by petitioner, the Court of Appeals issued its Decision affirming the trial court s Decision in toto, thus: WHEREFORE, the judgment hereby appealed from is hereby AFFIRMED in toto, with costs against the plaintiff-appellant. SO ORDERED. [4] In this petition, petitioner ascribes to the Court of Appeals the following assignments of error: I THE FINDINGS OF FACT OF THE HON. COURT OF APPEALS CONTAINED A CONCLUSION WITHOUT CITATION OF SPECIFIC EVIDENCE ON WHICH THE SAME WAS BASED.

II THE HON. COURT OF APPEALS ERRED IN CONSIDERING THAT THE ONLY ISSUE IN THIS CASE IS WHETHER OR NOT THE PLAINTIFF-APPELLANT HAS ACQUIRED A RIGHT OF WAY OVER THE LAND OF THE GOVERNMENT WHICH IS BETWEEN HIS PROPERTY AND THE NINOY AQUINO AVENUE.

(1) Thoseintended for public use such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and other of similar character. (2) Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth.

Public use is use that is not confined to privileged individuals, but is open to the indefinite public. [6] Records show that the lot on which the stairways were built is for the use of the people as passageway to the highway. Consequently, it is a property of public dominion. Property of public dominion is outside the commerce of man and hence it: (1) cannot be alienated or leased or otherwise be the subject matter of contracts; (2) cannot be acquired by prescription against the State; (3) is not subject to attachment and execution; and (4) cannot be burdened by any voluntary easement.[7] Considering that the lot on which the stairways were constructed is a property of public dominion, it can not be burdened by a voluntary easement of right of way in favor of herein petitioner. In fact, its use by the public is by mere tolerance of the government through the DPWH. Petitioner cannot appropriate it for himself. Verily, he can not claim any right of possession over it. This is clear from Article 530 of the Civil Code which provides: ART. 530. Only things and rights which are susceptible of being appropriated may be the object of possession.

Panganiban, (Chairman), Carpio Morales and Garcia, JJ., concur. Corona, J., on leave. Republic of the Philippines SUPREME COURT Manila chanroblesvirtuallawlibrary

EN BANC

G.R. No. 155076 : January 13, 2009 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.

RESOLUTION

Accordingly, both the trial court and the Court of Appeals erred in ruling that respondents have better right of possession over the subject lot. However, the trial court and the Court of Appeals found that defendants buildings were constructed on the portion of the same lot now covered by T.C.T. No. 74430 in petitioner s name. Being its owner, he is entitled to its possession. WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals dated December 7, 1998 in CA-G.R. CV No. 54883 is AFFIRMED with MODIFICATION in the sense that neither petitioner nor respondents have a right of possession over the disputed lot where the stairways were built as it is a property of public dominion. Costs against petitioner. SO ORDERED.

YNARES-SANTIAGO, J.:

On February 27, 2006, this Courts First Division rendered judgment in this case as follows: chanroblesvirtuallawlibrary

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional Trial Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is

directed to issue an order granting the motion of the petitioner to quash the Amended Information. chanroblesvirtuallawlibrary

P20,370,651.92 to the damage and prejudice of PLDT, in the said amount. chanroblesvirtuallawlibrary

SO ORDERED.[1]cralawchanroblesvirtuallawlibrary

CONTRARY LAW.[2]cralawchanroblesvirtuallawlibrary

TO

By way of brief background, petitioner is one of the accused in Criminal Case No. 99-2425, filed with the Regional Trial Court of Makati City, Branch 150. The Amended Information charged the accused with theft under Article 308 of the Revised Penal Code, committed as follows:

Petitioner filed a Motion to Quash (with Motion to Defer Arraignment), on the ground that the factual allegations in the Amended Information do not constitute the felony of theft. The trial court denied the Motion to Quash the Amended Information, as well petitioners subsequent Motion for Reconsideration. chanroblesvirtuallawlibrary

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On or about September 10-19, 1999, or prior thereto in Makati City, and within the jurisdiction of this Honorable Court, the accused, conspiring and confederating together and all of them mutually helping and aiding one another, with intent to gain and without the knowledge and consent of the Philippine Long Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal and use the international long distance calls belonging to PLDT by conducting International Simple Resale (ISR), which is a method of routing and completing international long distance calls using lines, cables, antenae, and/or air wave frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined, effectively stealing this business from PLDT while using its facilities in the estimated amount of

Petitioners special civil action for certiorari was dismissed by the Court of Appeals. Thus, petitioner filed the instant petition for review with this Court. chanroblesvirtuallawlibrary

In the above-quoted Decision, this Court held that the Amended Information does not contain material allegations charging petitioner with theft of personal property since international long distance calls and the business of providing telecommunication or telephone services are not personal properties under Article 308 of the Revised Penal Code.

chanroblesvirtuallawlibrary

the context of the Civil Code, may be the subject of theft under Article 308 of the Revised Penal Code. PLDT alleges that the international calls and business of providing telecommunication or telephone service are personal

Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion for Reconsideration with Motion to Refer the Case to the Supreme Court En Banc. It maintains that the Amended Information charging petitioner with theft is valid and sufficient; that it states the names of all the accused who were specifically charged with the crime of theft of PLDTs international calls and business of providing telecommunication or telephone service on or about September 10 to 19, 1999 in Makati City by conducting ISR or International Simple Resale; that it identifies the international calls and business of providing telecommunication or telephone service of PLDT as the personal properties which were unlawfully taken by the accused; and that it satisfies the test of sufficiency as it enabled a person of common understanding to know the charge against him and the court to render judgment properly. chanroblesvirtuallawlibrary

properties capable of appropriation and can be objects of theft. chanroblesvirtuallawlibrary

PLDT also argues that taking in relation to theft under the Revised Penal Code does not require asportation, the sole requisite being that the object should be capable of appropriation. The element of taking referred to in Article 308 of the Revised Penal Code means the act of depriving another of the possession and dominion of a movable coupled with the intention, at the time of the taking, of withholding it with the character of permanency. There must be intent to appropriate, which means to deprive the lawful owner of the thing. Thus, the term personal properties under Article 308 of the Revised Penal Code is not limited to only personal properties which are susceptible of being severed from a mass or larger quantity and of being transported from place to place. chanroblesvirtuallawlibrary

PLDT further insists that the Revised Penal Code should be interpreted in the context of the Civil Codes definition of real and personal property. The enumeration of real properties in Article 415 of the Civil Code is exclusive such that all those not included therein are personal properties. Since Article 308 of the Revised Penal Code used the words personal property without qualification, it follows that all personal properties as understood in PLDT likewise alleges that as early as the 1930s, international telephone calls were in existence; hence, there is no basis for this Courts finding that the Legislature could not have contemplated the theft of international telephone calls and the unlawful transmission and routing of electronic

voice signals or impulses emanating from such calls by unlawfully tampering with the telephone device as within the coverage of the Revised Penal Code. chanroblesvirtuallawlibrary

not be subject of theft. chanroblesvirtuallawlibrary

The Office of the Solicitor General (OSG) agrees with respondent PLDT that international phone calls and the business or service of providing According to respondent, the international phone calls which are electric currents or sets of electric impulses transmitted through a medium, and carry a pattern representing the human voice to a receiver, are personal properties which may be subject of theft. Article 416(3) of the Civil Code deems forces of nature (which includes electricity) which are brought under the control by science, are personal property. chanroblesvirtuallawlibrary international phone calls are subsumed in the enumeration and definition of personal property under the Civil Code hence, may be proper subjects of theft. It noted that the cases of United States v. Genato,[3]cralawUnited States v. Carlos[4]cralawand United States v. Tambunting,[5]cralaw which recognized intangible properties like gas and electricity as personal properties, are deemed incorporated in our penal laws. Moreover, the theft provision in the Revised Penal Code was deliberately couched in broad terms precisely to be all-encompassing and embracing even such scenario In his Comment to PLDTs motion for reconsideration, petitioner Laurel claims that a telephone call is a conversation on the phone or a communication carried out using the telephone. It is not synonymous to electric current or impulses. Hence, it may not be considered as personal property susceptible of appropriation. Petitioner claims that the analogy between generated electricity and telephone calls is misplaced. PLDT does not produce or generate telephone calls. It only provides the facilities or services for the transmission and switching of the calls. He also insists that business is not personal property. It is not the business that is protected but the right to carry on a business. This right is what is considered as property. Since the services of PLDT cannot be considered as property, the same may According to the OSG, prosecution under Republic Act (RA) No. 8484 or the Access Device Regulations Act of 1998 and RA 8792 or the Electronic Commerce Act of 2000 does not preclude prosecution under the Revised Penal Code for the crime of theft. The latter embraces unauthorized appropriation or use of PLDTs international calls, service and business, for personal profit or gain, to the prejudice of PLDT as owner thereof. On the other hand, the special laws punish the surreptitious and advanced technical means employed to illegally obtain the subject service and that could not have been easily anticipated. chanroblesvirtuallawlibrary

business. Even assuming that the correct indictment should have been under RA 8484, the quashal of the information would still not be proper. The charge of theft as alleged in the Information should be taken in relation to RA 8484 because it is the elements, and not the designation of the crime, that control. chanroblesvirtuallawlibrary 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 Considering the gravity and complexity of the novel questions of law involved in this case, the Special First Division resolved to refer the same to the Banc. chanroblesvirtuallawlibrary taking be accomplished without the use of violence against or intimidation of persons or force upon things. chanroblesvirtuallawlibrary

We resolve to grant the Motion for Reconsideration but remand the case to the trial court for proper clarification of the Amended Information. chanroblesvirtuallawlibrary

Prior to the passage of the Revised Penal Code on December 8, 1930, the definition of the term personal property in the penal code provision on theft had been established in Philippine jurisprudence. This Court, in United States v. Genato, United States v. Carlos, and United States v. Tambunting, consistently ruled that any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object of

Article 308 of the Revised Penal Code provides: chanroblesvirtuallawlibrary

theft. chanroblesvirtuallawlibrary

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 latters consent. chanroblesvirtuallawlibrary

Moreover, since the passage of the Revised Penal Code on December 8, 1930, the term personal property has had a generally accepted definition in civil law. In Article 335 of the Civil Code of Spain, personal property is

defined as anything susceptible of appropriation and not included in the foregoing chapter (not real property). Thus, the term personal property in the Revised Penal Code should be interpreted in the context of the Civil Code provisions in accordance with the rule on statutory construction that where words have been long used in a technical sense and have been judicially construed to have a certain meaning, and have been adopted by the legislature as having a certain meaning prior to a particular statute, in which they are used, the words used in such statute should be construed according to the sense in which they have been previously used.[6]cralaw In fact, this Court used the Civil Code definition of personal property in interpreting the theft provision of the penal code in United States v. Carlos. chanroblesvirtuallawlibrary To appropriate means to deprive the lawful owner of the thing.[9]cralaw The word take in the Revised Penal Code includes any act intended to transfer possession which, as held in the assailed Decision, may be committed through the use of the offenders own hands, as well as any mechanical device, such as an access device or card as in the instant case. This includes Cognizant of the definition given by jurisprudence and the Civil Code of Spain to the term personal property at the time the old Penal Code was being revised, still the legislature did not limit or qualify the definition of personal property in the Revised Penal Code. Neither did it provide a restrictive definition or an exclusive enumeration of personal property in the Revised Penal Code, thereby showing its intent to retain for the term an extensive and unqualified interpretation. Consequently, any property which is not included in the enumeration of real properties under the Civil Code and capable of appropriation can be the subject of theft under the Revised Penal Code. chanroblesvirtuallawlibrary As illustrated in the above cases, appropriation of forces of nature which are controlling the destination of the property stolen to deprive the owner of the property, such as the use of a meter tampering, as held in Natividad v. Court of Appeals,[10]cralaw use of a device to fraudulently obtain gas, as held in United States v. Tambunting, and the use of a jumper to divert electricity, as held in the cases of United States v. Genato, United States v. Carlos, and United States v. Menagas.[11]cralawchanroblesvirtuallawlibrary 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.[7]cralaw Jurisprudence is settled that to take under the theft provision of the penal code does not require asportation or carrying away.[8]cralawchanroblesvirtuallawlibrary

brought under control by science such as electrical energy can be achieved by tampering with any apparatus used for generating or measuring such forces of nature, wrongfully redirecting such forces of nature from such apparatus, or using any device to fraudulently obtain such forces of nature. In the instant case, petitioner was charged with engaging in International Simple Resale (ISR) or the unauthorized routing and completing of international long distance calls using lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined.

deflect or take any electric current from such wire, meter, or other apparatus. chanroblesvirtuallawlibrary

No person shall, for any purpose whatsoever, use or enjoy the benefits of any device by means of which he may fraudulently obtain any current of electricity or any telegraph or telephone service; and the existence in any building premises of any such device shall, in the absence of satisfactory explanation, be deemed sufficient evidence of such use by the persons benefiting thereby. chanroblesvirtuallawlibrary

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It was further ruled that even without the above ordinance the acts of As early as 1910, the Court declared in Genato that ownership over electricity (which an international long distance call consists of), as well as telephone service, is protected by the provisions on theft of the Penal Code. The pertinent provision of the Revised Ordinance of the City of Manila, which was involved in the said case, reads as follows: Even without them (ordinance), the right of the ownership of electric current is secured by articles 517 and 518 of the Penal Code; the application of these articles in cases of subtraction of gas, a fluid used for lighting, and in some respects resembling electricity, is confirmed by the rule laid down in the decisions of the supreme court of Spain of January 20, 1887, and April 1, 1897, construing and enforcing the provisions of articles 530 and 531 of the Penal Code of that country, articles 517 and 518 of the code in force in these islands. chanroblesvirtuallawlibrary subtraction punished therein are covered by the provisions on theft of the Penal Code then in force, thus: chanroblesvirtuallawlibrary

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Injury to electric apparatus; Tapping current; Evidence. No person shall destroy, mutilate, deface, or otherwise injure or tamper with any wire, meter, or other apparatus installed or used for generating, containing, conducting, or measuring electricity, telegraph or telephone service, nor tap or otherwise wrongfully

The acts of subtraction include: (a) tampering with any wire, meter, or other apparatus installed or used for generating, containing, conducting, or measuring electricity, telegraph or telephone service; (b) tapping or otherwise wrongfully deflecting or taking any electric current from such wire, meter, or other apparatus; and (c) using or enjoying the benefits of any device by means of which one may fraudulently obtain any current of electricity or any telegraph or telephone service. chanroblesvirtuallawlibrary

Section 2. Any sale, transfer, mortgage, or assignment of a stock of goods, wares, merchandise, provisions, or materials otherwise than in the ordinary course of trade and the regular prosecution of the business of the vendor, mortgagor, transferor, or assignor, or any sale, transfer, mortgage, or assignment of all, or substantially all, of the business or trade theretofore conducted by the vendor, mortgagor, transferor or assignor, or all, or substantially all, of the fixtures and equipment used in and about the business of the vendor, mortgagor, transferor, or assignor, shall be deemed to be a sale and transfer in bulk, in contemplation of the Act. xxx. chanroblesvirtuallawlibrary

In the instant case, the act of conducting ISR operations by illegally connecting various equipment or apparatus to private respondent PLDTs telephone system, through which petitioner is able to resell or re-route international long distance calls using respondent PLDTs facilities constitutes all three acts of subtraction mentioned above. In Strochecker v. Ramirez,[12]cralaw this Court stated:

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The business of providing telecommunication or telephone service is likewise personal property which can be the object of theft under Article 308 of the Revised Penal Code. Business may be appropriated under Section 2 of Act No. 3952 (Bulk Sales Law), hence, could be object of theft: chanroblesvirtuallawlibrary

With regard to the nature of the property thus mortgaged which is one-half interest in the business above described, such interest is a personal property capable of appropriation and not included in the enumeration of real properties in article 335 of the Civil Code, and may be the subject of mortgage. chanroblesvirtuallawlibrary

A perusal of the records of this case readily reveals that petitioner and Interest in business was not specifically enumerated as personal property in the Civil Code in force at the time the above decision was rendered. Yet, interest in business was declared to be personal property since it is capable of appropriation and not included in the enumeration of real properties. Article 414 of the Civil Code provides that all things which are or may be the object of appropriation are considered either real property or personal property. Business is likewise not enumerated as personal property under the Civil Code. Just like interest in business, however, it may be appropriated. Following the ruling in Strochecker v. Ramirez, business should also be classified as personal property. Since it is not included in the exclusive enumeration of real properties under Article 415, it is therefore personal property.
[13]

respondent PLDT extensively discussed the issue of ownership of telephone calls. The prosecution has taken the position that said telephone calls belong to respondent PLDT. This is evident from its Comment where it defined the issue of this case as whether or not the unauthorized use or appropriation of PLDT international telephone calls, service and facilities, for the purpose of generating personal profit or gain that should have otherwise belonged to PLDT, constitutes

theft.[14]cralawchanroblesvirtuallawlibrary

In discussing the issue of ownership, petitioner and respondent PLDT gave their respective explanations on how a telephone call is generated.[15]cralaw For its part, respondent PLDT explains the process of generating a telephone call as follows: chanroblesvirtuallawlibrary

cralawchanroblesvirtuallawlibrary

As can be clearly gleaned from the above disquisitions, petitioners acts constitute theft of respondent PLDTs business and service, committed by means of the unlawful use of the latters facilities. In this regard, the Amended Information inaccurately describes the offense by making it appear that what petitioner took were the international long distance telephone calls, rather than respondent PLDTs business. 38.The role of telecommunication companies is not limited to merely providing the medium (i.e. the electric current) through which the human voice/voice signal of the caller is transmitted. Before the human voice/voice signal can be so transmitted, a telecommunication company, using its facilities, must first break down or decode the human voice/voice signal into electronic impulses and subject the same to further augmentation and enhancements. Only after such process of conversion will the resulting electronic

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impulses be transmitted by a telecommunication company, again, through the use of its facilities. Upon reaching the destination of the call, the telecommunication company will again break down or decode the electronic impulses back to human voice/voice signal before the called party receives the same. In other words, a telecommunication company both converts/reconverts the human voice/voice signal and provides the medium for transmitting the same. chanroblesvirtuallawlibrary

network, the human voice/voice signal of the calling party will never reach the called [16] party. cralawchanroblesvirtuallawlibrary

In the assailed Decision, it was conceded that in making the international phone calls, the human voice is converted into electrical impulses or electric

39.Moreover, in the case of an international telephone call, once the electronic impulses originating from a foreign telecommunication company country (i.e. Japan) reaches the Philippines through a local telecommunication company (i.e. private respondent PLDT), it is the latter which decodes, augments and enhances the electronic impulses back to the human voice/voice signal and provides the medium (i.e. electric current) to enable the called party to receive the call. Thus, it is not true that the foreign telecommunication company provides (1) the electric current which transmits the human voice/voice signal of the caller and (2) the electric current for the called party to receive said human voice/voice signal. chanroblesvirtuallawlibrary

current which are transmitted to the party called. A telephone call, therefore, is electrical energy. It was also held in the assailed Decision that intangible property such as electrical energy is capable of appropriation because it may be taken and carried away. Electricity is personal property under Article 416 (3) of the Civil Code, which enumerates forces of nature which are brought under control by

science.[17]cralawchanroblesvirtuallawlibrary

Indeed, while it may be conceded that international long distance calls, the matter alleged to be stolen in the instant case, take the form of electrical

40.Thus, contrary to petitioner Laurels assertion, once the electronic impulses or electric current originating from a foreign telecommunication company (i.e. Japan) reaches private respondent PLDTs network, it is private respondent PLDT which decodes, augments and enhances the electronic impulses back to the human voice/voice signal and provides the medium (i.e. electric current) to enable the called party to receive the call. Without private respondent PLDTs

energy, it cannot be said that such international long distance 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

communications infrastructure and facilities. PLDT not being the owner of said telephone calls, then it could not validly 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. chanroblesvirtuallawlibrary ACCORDINGLY, the motion for reconsideration is GRANTED. The assailed Decision dated February 27, 2006 is RECONSIDERED and SET ASIDE. The Decision of the Court of Appeals in CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar of the Regional Trial Court of Makati City, Therefore, 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 is an act of subtraction penalized under said article. However, the Amended Information describes the thing taken as, international long distance calls, and only later mentions stealing the business from PLDT as the manner by which the gain was derived by the accused. In order to correct this inaccuracy of description, this case must be remanded to the trial court and the prosecution directed to amend the Amended Information, to clearly state that the property subject of the theft are the services and business of respondent PLDT. Parenthetically, this amendment is not necessitated by a mistake in charging the proper offense, which would have called for the dismissal of the information under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules on Criminal Procedure. To be sure, the crime is properly designated as one of theft. The purpose of the amendment is simply to ensure that the accused is fully and sufficiently apprised of the nature and cause of the charge against him, and thus guaranteed of his rights under the Constitution. SO ORDERED. Branch 150, which denied the Motion to Quash (With Motion to Defer Arraignment) in Criminal Case No. 99-2425 for theft, is AFFIRMED. The case is remanded to the trial court and the Public Prosecutor of Makati City is hereby DIRECTED to amend the Amended Information to show that the property subject of the theft were services and business of the private offended party. chanroblesvirtuallawlibrary

chanroblesvirtuallawlibrary