FIRST DIVISION

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.

D E C I S I O N
CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in
CA-G.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar, Regional Trial Court
(RTC), Makati City, Branch 150, which denied the "Motion to Quash (With Motion to Defer
Arraignment)" in Criminal Case No. 99-2425 for theft.

Philippine Long Distance Telephone Company (PLDT) is the holder of a legislative franchise to
render local and international telecommunication services under Republic Act No. 7082.2 Under
said law, PLDT is authorized to establish, operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting, receiving and switching stations, for both
domestic and international calls. For this purpose, it has installed an estimated 1.7 million
telephone lines nationwide. PLDT also offers other services as authorized by Certificates of
Public Convenience and Necessity (CPCN) duly issued by the National Telecommunications
Commission (NTC), and operates and maintains an International Gateway Facility (IGF). The
PLDT network is thus principally composed of the Public Switch Telephone Network (PSTN),
telephone handsets and/or telecommunications equipment used by its subscribers, the wires
and cables linking said telephone handsets and/or telecommunications equipment, antenna,
the IGF, and other telecommunications equipment which provide interconnections.3
1avvphil.net

PLDT alleges that one of the alternative calling patterns that constitute network fraud and
violate its network integrity is that which is known as 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 IPL is linked to switching equipment which is connected to a PLDT telephone
line/number. In the process, the calls bypass the IGF found at the terminating country, or in
some instances, even those from the originating country.4


LAUREL V ABROGAR

One such alternative calling service is that offered by Baynet Co., Ltd. (Baynet) which sells "Bay
Super Orient Card" phone cards to people who call their friends and relatives in the Philippines.
With said card, one is entitled to a 27-minute call to the Philippines for about 37.03 per
minute. After dialing the ISR access number indicated in the phone card, the ISR operator
requests the
subscriber to give the PIN number also indicated in the phone card. Once the callers identity (as
purchaser of the phone card) is confirmed, the ISR operator will then provide a Philippine local
line to the requesting caller via the IPL. According to PLDT, calls made through the IPL never pass
the toll center of IGF operators in the Philippines. Using the local line, the Baynet card user is
able to place a call to any point in the Philippines, provided the local line is National Direct Dial
(NDD) capable.5

PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to course its incoming
international long distance calls from Japan. The IPL is linked to switching equipment, which is
then connected to PLDT telephone lines/numbers and equipment, with Baynet as subscriber.
Through the use of the telephone lines and other auxiliary equipment, Baynet is able to connect
an international long distance call from Japan to any part of the Philippines, and make it appear
as a call originating from Metro Manila. Consequently, 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.6

PLDT pointed out that Baynet utilized the following equipment for its ISR activities: lines, cables,
and antennas or equipment or device capable of transmitting air waves or frequency, such as an
IPL and telephone lines and equipment; computers or any equipment or device capable of
accepting information applying the prescribed process of the information and supplying the
result of this process; modems or any equipment or device that enables a data terminal
equipment such as computers to communicate with other data terminal equipment via a
telephone line; multiplexers or any equipment or device that enables two or more signals from
different sources to pass through a common cable or transmission line; switching equipment, or
equipment or device capable of connecting telephone lines; and software, diskettes, tapes or
equipment or device used for recording and storing information.7

PLDT also discovered that Baynet subscribed to a total of 123 PLDT telephone lines/numbers.8
Based on the Traffic Study conducted on the volume of calls passing through Baynets ISR
network which bypass the IGF toll center, PLDT incurred an estimated monthly loss of
P10,185,325.96.9 Records at the Securities and Exchange Commission (SEC) also revealed that
Baynet was not authorized to provide international or domestic long distance telephone service
in the country. The following are its officers: Yuji Hijioka, a Japanese national (chairman of the
board of directors); Gina C. Mukaida, a Filipina (board member and president); Luis Marcos P.
Laurel, a Filipino (board member and corporate secretary); Ricky Chan Pe, a Filipino (board
member and treasurer); and Yasushi Ueshima, also a Japanese national (board member).

Upon complaint of PLDT against Baynet for network fraud, and on the strength of two search
warrants10 issued by the RTC of Makati, Branch 147, National Bureau of Investigation (NBI)
agents searched its office at the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on
November 8, 1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J.
Villegas were arrested by NBI agents while in the act of manning the operations of Baynet.
Seized in the premises during the search were numerous equipment and devices used in its ISR
activities, such as multiplexers, modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors, cables/wires, assorted PLDT statement of
accounts, parabolic antennae and voltage regulators.

State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued a Resolution11 on
January 28, 2000, finding probable cause for theft under Article 308 of the Revised Penal Code
and Presidential Decree No. 40112 against the respondents therein, including Laurel.

On February 8, 2000, State Prosecutor Calo filed an Information with the RTC of Makati City
charging Matsuura, Miyake, Lacson and Villegas with theft under Article 308 of the Revised
Penal Code. After conducting the requisite preliminary investigation, the State Prosecutor filed
an Amended Information impleading Laurel (a partner in the law firm of Ingles, Laurel, Salinas,
and, until November 19, 1999, a member of the board of directors and corporate secretary of
Baynet), and the other members of the board of directors of said corporation, namely, Yuji
Hijioka, Yasushi Ueshima, Mukaida, Lacson and Villegas, as accused for theft under Article 308 of
the Revised Penal Code. The inculpatory portion of the Amended Information reads:

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

CONTRARY TO LAW.13

Accused Laurel 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
under Article 308 of the Revised Penal Code. He averred that the Revised Penal Code, or any
other special penal law for that matter, does not prohibit ISR operations. He claimed that
telephone calls with the use of PLDT telephone lines, whether domestic or international, belong
to the persons making the call, not to PLDT. He argued that the caller merely uses the facilities
of PLDT, and what the latter owns are the telecommunication infrastructures or facilities
through which the call is made. He also asserted that PLDT is compensated for the callers use of
its facilities by way of rental; for an outgoing overseas call, PLDT charges the caller per minute,
based on the duration of the call. Thus, no personal property was stolen from PLDT. According
to Laurel, the P20,370,651.92 stated in the Information, if anything, represents the rental for
the use of PLDT facilities, and not the value of anything owned by it. Finally, he averred that the
allegations in the Amended Information are already subsumed under the Information for
violation of Presidential Decree (P.D.) No. 401 filed and pending in the Metropolitan Trial Court
of Makati City, docketed as Criminal Case No. 276766.

The prosecution, through private complainant PLDT, opposed the motion,14 contending that
the movant unlawfully took personal property belonging to it, as follows: 1) intangible
telephone services that are being offered by PLDT and other telecommunication companies, i.e.,
the connection and interconnection to their telephone lines/facilities; 2) the use of those
facilities over a period of time; and 3) the revenues derived in connection with the rendition of
such services and the use of such facilities.15

The prosecution asserted that the use of PLDTs intangible telephone services/facilities allows
electronic voice signals to pass through the same, and ultimately to the called partys number. It
averred that such service/facility is akin to electricity which, although an intangible property,
may, nevertheless, be appropriated and be the subject of theft. Such service over a period of
time for a consideration is the business that PLDT provides to its customers, which enables the
latter to send various messages to installed recipients. The service rendered by PLDT is akin to
merchandise which has specific value, and therefore, capable of appropriation by another, as in
this case, through the ISR operations conducted by the movant and his co-accused.

The prosecution further alleged that "international business calls and revenues constitute
personal property envisaged in Article 308 of the Revised Penal Code." Moreover, the intangible
telephone services/facilities belong to PLDT and not to the movant and the other accused,
because they have no telephone services and facilities of their own duly authorized by the NTC;
thus, the taking by the movant and his co-accused of PLDT services was with intent to gain and
without the latters consent.

The prosecution pointed out that the accused, as well as the movant, were paid in exchange for
their illegal appropriation and use of PLDTs telephone services and facilities; on the other hand,
the accused did not pay a single centavo for their illegal ISR operations. Thus, the acts of the
accused were akin to the use of a "jumper" by a consumer to deflect the current from the house
electric meter, thereby enabling one to steal electricity. The prosecution emphasized that its
position is fortified by the Resolutions of the Department of Justice in PLDT v. Tiongson, et al.
(I.S. No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which
were issued on August 14, 2000 finding probable cause for theft against the respondents
therein.

On September 14, 2001, the RTC issued an Order16 denying the Motion to Quash the Amended
Information. The court declared that, although there is no law that expressly prohibits the use of
ISR, the facts alleged in the Amended Information "will show how the alleged crime was
committed by conducting ISR," to the damage and prejudice of PLDT.

Laurel filed a Motion for Reconsideration17 of the Order, alleging that international long
distance calls are not personal property, and are not capable of appropriation. He maintained
that business or revenue is not considered personal property, and that the prosecution failed to
adduce proof of its existence and the subsequent loss of personal property belonging to
another. Citing the ruling of the Court in United States v. De Guzman,18 Laurel averred that the
case is not one with telephone calls which originate with a particular caller and terminates with
the called party. He insisted that telephone calls are considered privileged communications
under the Constitution and cannot be considered as "the property of PLDT." He further argued
that there is no kinship between telephone calls and electricity or gas, as the latter are forms of
energy which are generated and consumable, and may be considered as personal property
because of such characteristic. On the other hand, the movant argued, the telephone business is
not a form of energy but is an activity.

In its Order19 dated December 11, 2001, the RTC denied the movants Motion for
Reconsideration. This time, it ruled that what was stolen from PLDT was its "business" because,
as alleged in the Amended Information, the international long distance calls made through the
facilities of PLDT formed part of its business. The RTC noted that the movant was charged with
stealing the business of PLDT. To support its ruling, it cited Strochecker v. Ramirez,20 where the
Court ruled that interest in business is personal property capable of appropriation. It further
declared that, through their ISR operations, the movant and his co-accused deprived PLDT of
fees for international long distance calls, and that the ISR used by the movant and his co-
accused was no different from the "jumper" used for stealing electricity.

Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC. He alleged
that the respondent judge gravely abused his discretion in denying his Motion to Quash the
Amended Information.21 As gleaned from the material averments of the amended information,
he was charged with stealing the international long distance calls belonging to PLDT, not its
business. Moreover, the RTC failed to distinguish between the business of PLDT (providing
services for international long distance calls) and the revenues derived therefrom. He opined
that a "business" or its revenues cannot be considered as personal property under Article 308 of
the Revised Penal Code, since a "business" is "(1) a commercial or mercantile activity
customarily engaged in as a means of livelihood and typically involving some independence of
judgment and power of decision; (2) a commercial or industrial enterprise; and (3) refers to
transactions, dealings or intercourse of any nature." On the other hand, the term "revenue" is
defined as "the income that comes back from an investment (as in real or personal property);
the annual or periodical rents, profits, interests, or issues of any species of real or personal
property."22

Laurel further posited that an electric companys business is the production and distribution of
electricity; a gas companys business is the production and/or distribution of gas (as fuel); while
a water companys business is the production and distribution of potable water. He argued that
the "business" in all these cases is the commercial activity, while the goods and merchandise are
the products of such activity. Thus, in prosecutions for theft of certain forms of energy, it is the
electricity or gas which is alleged to be stolen and not the "business" of providing electricity or
gas. However, since a telephone company does not produce any energy, goods or merchandise
and merely renders a service or, in the words of PLDT, "the connection and interconnection to
their telephone lines/facilities," such service cannot be the subject of theft as defined in Article
308 of the Revised Penal Code.23

He further declared that to categorize "business" as personal property under Article 308 of the
Revised Penal Code would lead to absurd consequences; in prosecutions for theft of gas,
electricity or water, it would then be permissible to allege in the Information that it is the gas
business, the electric business or the water business which has been stolen, and no longer the
merchandise produced by such enterprise.24

Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,25 where it
was ruled that the Revised Penal Code, legislated as it was before present technological
advances were even conceived, is not adequate to address the novel means of "stealing"
airwaves or airtime. In said resolution, it was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of 1997" to deter cloning of
cellular phones and other forms of communications fraud. The said bill "aims to protect in
number (ESN) (sic) or Capcode, mobile identification number (MIN), electronic-international
mobile equipment identity (EMEI/IMEI), or subscriber identity module" and "any attempt to
duplicate the data on another cellular phone without the consent of a public
telecommunications entity would be punishable by law."26 Thus, Laurel concluded, "there is no
crime if there is no law punishing the crime."

On August 30, 2002, the CA rendered judgment dismissing the petition.27 The appellate court
ruled that a petition for certiorari under Rule 65 of the Rules of Court was not the proper
remedy of the petitioner. On the merits of the petition, it held that while business is generally
an activity

which is abstract and intangible in form, it is nevertheless considered "property" under Article
308 of the Revised Penal Code. The CA opined that PLDTs business of providing international
calls is personal property which may be the object of theft, and cited United States v. Carlos28
to support such conclusion. The tribunal also cited Strochecker v. Ramirez,29 where this Court
ruled that one-half interest in a days business is personal property under Section 2 of Act No.
3952, otherwise known as the Bulk Sales Law. The appellate court held that the operations of
the ISR are not subsumed in the charge for violation of P.D. No. 401.

Laurel, now the petitioner, assails the decision of the CA, contending that -

THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL PROPERTY ALLEGEDLY STOLEN
PER THE INFORMATION IS NOT THE "INTERNATIONAL LONG DISTANCE CALLS" BUT THE
"BUSINESS OF PLDT."

THE COURT OF APPEALS ERRED IN RULING THAT THE TERM "BUSINESS" IS PERSONAL PROPERTY
WITHIN THE MEANING OF ART. 308 OF THE REVISED PENAL CODE.30

Petitioner avers that the petition for a writ of certiorari may be filed to nullify an interlocutory
order of the trial court which was issued with grave abuse of discretion amounting to excess or
lack of jurisdiction. In support of his petition before the Court, he reiterates the arguments in his
pleadings filed before the CA. He further claims that while the right to carry on a business or an
interest or participation in business is considered property under the New Civil Code, the term
"business," however, is not. He asserts that the Philippine Legislature, which approved the
Revised Penal Code way back in January 1, 1932, could not have contemplated to include
international long distance calls and "business" as personal property under Article 308 thereof.

In its comment on the petition, the Office of the Solicitor General (OSG) maintains that the
amended information clearly states all the essential elements of the crime of theft. Petitioners
interpretation as to whether an "international long distance call" is personal property under the
law is inconsequential, as a reading of the amended information readily reveals that specific acts
and circumstances were alleged charging Baynet, through its officers, including petitioner, of
feloniously taking, stealing and illegally using international long distance calls belonging to
respondent PLDT by conducting ISR operations, thus, "routing and completing international long
distance calls using lines, cables, antenna and/or airwave frequency which connect directly to
the local or domestic exchange facilities of the country where the call is destined." The OSG
maintains that the international long distance calls alleged in the amended information should
be construed to mean "business" of PLDT, which, while abstract and intangible in form, is
personal property susceptible of appropriation.31 The OSG avers that what was stolen by
petitioner and his co-accused is the business of PLDT providing international long distance calls
which, though intangible, is personal property of the PLDT.32

For its part, respondent PLDT asserts that personal property under Article 308 of the Revised
Penal Code comprehends intangible property such as electricity and gas which are valuable
articles for merchandise, brought and sold like other personal property, and are capable of
appropriation. It insists that the business of international calls and revenues constitute personal
property because the same are valuable articles of merchandise. The respondent reiterates that
international calls involve (a) the intangible telephone services that are being offered by it, that
is, the connection and interconnection to the telephone network, lines or facilities; (b) the use
of its telephone network, lines or facilities over a period of time; and (c) the income derived in
connection therewith.33

PLDT further posits that business revenues or the income derived in connection with the
rendition of such services and the use of its telephone network, lines or facilities are personal
properties under Article 308 of the Revised Penal Code; so is the use of said telephone
services/telephone network, lines or facilities which allow electronic voice signals to pass
through the same and ultimately to the called partys number. It is akin to electricity which,
though intangible property, may nevertheless be appropriated and can be the object of theft.
The use of respondent PLDTs telephone network, lines, or facilities over a period of time for
consideration is the business that it provides to its customers, which enables the latter to send
various messages to intended recipients. Such use over a period of time is akin to merchandise
which has value and, therefore, can be appropriated by another. According to respondent PLDT,
this is what actually happened when petitioner Laurel and the other accused below conducted
illegal ISR operations.34

The petition is meritorious.

The issues for resolution are as follows: (a) whether or not the petition for certiorari is the
proper remedy of the petitioner in the Court of Appeals; (b) whether or not international
telephone calls using Bay Super Orient Cards through the telecommunication services provided
by PLDT for such calls, or, in short, PLDTs business of providing said telecommunication
services, are proper subjects of theft under Article 308 of the Revised Penal Code; and (c)
whether or not the trial court committed grave abuse of discretion amounting to excess or lack
of jurisdiction in denying the motion of the petitioner to quash the amended information.

On the issue of whether or not the petition for certiorari instituted by the petitioner in the CA is
proper, the general rule is that a petition for certiorari under Rule 65 of the Rules of Court, as
amended, to nullify an order denying a motion to quash the Information is inappropriate
because the aggrieved party has a remedy of appeal in the ordinary course of law. Appeal and
certiorari are mutually exclusive of each other. The remedy of the aggrieved party is to continue
with the case in due course and, when an unfavorable judgment is rendered, assail the order
and the decision on appeal. However, if the trial court issues the order denying the motion to
quash the Amended Information with grave abuse of discretion amounting to excess or lack of
jurisdiction, or if such order is patently erroneous, or null and void for being contrary to the
Constitution, and the remedy of appeal would not afford adequate and expeditious relief, the
accused may resort to the extraordinary remedy of certiorari.35 A special civil action for
certiorari is also available where there are special circumstances clearly demonstrating the
inadequacy of an appeal. As this Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria:36

Nonetheless, the settled rule is that a writ of certiorari may be granted in cases where, despite
availability of appeal after trial, there is at least a prima facie showing on the face of the petition
and its annexes that: (a) the trial court issued the order with grave abuse of discretion
amounting to lack of or in excess of jurisdiction; (b) appeal would not prove to be a speedy and
adequate remedy; (c) where the order is a patent nullity; (d) the decision in the present case will
arrest future litigations; and (e) for certain considerations such as public welfare and public
policy.37

In his petition for certiorari in the CA, petitioner averred that the trial court committed grave
abuse of its discretion amounting to excess or lack of jurisdiction when it denied his motion to
quash the Amended Information despite his claim that the material allegations in the Amended
Information do not charge theft under Article 308 of the Revised Penal Code, or any offense for
that matter. By so doing, the trial court deprived him of his constitutional right to be informed
of the nature of the charge against him. He further averred that the order of the trial court is
contrary to the constitution and is, thus, null and void. He insists that he should not be
compelled to undergo the rigors and tribulations of a protracted trial and incur expenses to
defend himself against a non-existent charge.

Petitioner is correct.

An information or complaint must state explicitly and directly every act or omission constituting
an offense38 and must allege facts establishing conduct that a penal statute makes criminal;39
and describes the property which is the subject of theft to advise the accused with reasonable
certainty of the accusation he is called upon to meet at the trial and to enable him to rely on the
judgment thereunder of a subsequent prosecution for the same offense.40 It must show, on its
face, that if the alleged facts are true, an offense has been committed. The rule is rooted on the
constitutional right of the accused to be informed of the nature of the crime or cause of the
accusation against him. He cannot be convicted of an offense even if proven unless it is alleged
or necessarily included in the Information filed against him.

As a general prerequisite, a motion to quash on the ground that the Information does not
constitute the offense charged, or any offense for that matter, should be resolved on the basis
of said allegations whose truth and veracity are hypothetically committed;41 and on additional
facts admitted or not denied by the prosecution.42 If the facts alleged in the Information do not
constitute an offense, the complaint or information should be quashed by the court.43

We have reviewed the Amended Information and find that, as mentioned by the petitioner, it
does not contain material allegations charging the petitioner of theft of personal property under
Article 308 of the Revised Penal Code. It, thus, behooved the trial court to quash the Amended
Information. The Order of the trial court denying the motion of the petitioner to quash the
Amended Information is a patent nullity.

On the second issue, we find and so hold that 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.
The construction by the respondents of Article 308 of the said Code to include, within its
coverage, the aforesaid international telephone calls, telecommunication services and business
is contrary to the letter and intent of the law.

The rule is that, penal laws are to be construed strictly. Such rule is founded on the tenderness
of the law for the rights of individuals and on the plain principle that the power of punishment is
vested in Congress, not in the judicial department. It is Congress, not the Court, which is to
define a crime, and ordain its punishment.44 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 to language,
legislative history and purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids.45 However, when the congressional purpose is unclear, the court must
apply the rule of lenity, that is, ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.46

Penal statutes may not be enlarged by implication or intent beyond the fair meaning of the
language used; and may not be held to include offenses other than those which are clearly
described, notwithstanding that the Court may think that Congress should have made them
more comprehensive.47 Words and phrases in a statute are to be construed according to their
common meaning and accepted usage.

As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the principle
that a case which is within the reason or

mischief of a statute is within its provision, so far as to punish a crime not enumerated in the
statute because it is of equal atrocity, or of kindred character with those which are
enumerated.48 When interpreting a criminal statute that does not explicitly reach the conduct
in question, the Court should not base an expansive reading on inferences from subjective and
variable understanding.49

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 latters consent.

The provision was taken from Article 530 of the Spanish Penal Code which reads:

1. Los que con nimo de lucrarse, y sin violencia o intimidacin en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.50

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.51

One is apt to conclude that "personal property" standing alone, covers both tangible and
intangible properties and are subject of theft under the Revised Penal Code. But the words
"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.52 As explained by Cuelo Callon: "Cosa
juridicamente es toda sustancia corporal, material, susceptible de ser aprehendida que tenga un
valor cualquiera."53

According to Cuello Callon, in the context of the Penal Code, 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.

Solamente las cosas muebles y corporales pueden ser objeto de hurto. La sustraccin de cosas
inmuebles y la cosas incorporales (v. gr., los derechos, las ideas) no puede integrar este delito,
pues no es posible asirlas, tomarlas, para conseguir su apropiacin. El Codigo emplea la
expresin "cosas mueble" en el sentido de cosa que es susceptible de ser llevada del lugar
donde se encuentra, como dinero, joyas, ropas, etctera, asi que su concepto no coincide por
completo con el formulado por el Codigo civil (arts. 335 y 336).54

Thus, 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.55 Such rights or interests are intangible and cannot be "taken" by
another. Thus, right to produce oil, good will or an interest in business, or the right to engage in
business, credit or franchise are properties. So is the credit line represented by a credit card.
However, they are not proper subjects of theft or larceny because they are without form or
substance, the mere "breath" of the Congress. On the other hand, goods, wares and
merchandise of businessmen and credit cards issued to them are movable properties with
physical and material existence and may be taken by another; hence, proper subjects of theft.

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.56 It 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.57 Neither asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough.58

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.59

Taking may be by the offenders own hands, by his use of innocent persons without any
felonious intent, as well as any mechanical device, such as an access device or card, or any
agency, animate or inanimate, with intent to gain. Intent to gain includes the unlawful taking of
personal property for the purpose of deriving utility, satisfaction, enjoyment and pleasure.60

We agree with the contention of the respondents that intangible properties such as electrical
energy and gas are proper subjects of theft. The reason for this is that, as explained by this
Court in United States v. Carlos61 and United States v. Tambunting,62 based on decisions of the
Supreme Court of Spain and of the courts in England and the United States of America, gas or
electricity are capable of appropriation by another other than the owner. Gas and electrical
energy may be taken, carried away and appropriated. In People v. Menagas,63 the Illinois State
Supreme Court declared that electricity, like gas, may be seen and felt. Electricity, the same as
gas, is a valuable article of merchandise, bought and sold like other personal property and is
capable of appropriation by another. It is a valuable article of merchandise, bought and sold like
other personal property, susceptible of being severed from a mass or larger quantity and of
being transported from place to place. Electrical energy may, likewise, be taken and carried
away. It is a valuable commodity, bought and sold like other personal property. It may be
transported from place to place. There is nothing in the nature of gas used for illuminating
purposes which renders it incapable of being feloniously taken and carried away.

In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of Appeals of New York
held that electric energy is manufactured and sold in determinate quantities at a fixed price,
precisely as are coal, kerosene oil, and gas. It may be conveyed to the premises of the
consumer, stored in cells of different capacity known as an accumulator; or it may be sent
through a wire, just as gas or oil may be transported either in a close tank or forced through a
pipe. Having reached the premises of the consumer, it may be used in any way he may desire,
being, like illuminating gas, capable of being transformed either into heat, light, or power, at the
option of the purchaser. In Woods v. People,65 the Supreme Court of Illinois declared that there
is nothing in the nature of gas used for illuminating purposes which renders it incapable of being
feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like
other personal property, susceptible of being severed from a mass or larger quantity and of
being transported from place to place.

Gas and electrical energy should not be equated with business or services provided by business
entrepreneurs to the public. Business does not have an exact definition. Business is referred as
that which occupies the time, attention and labor of men for the purpose of livelihood or profit.
It embraces everything that which a person can be employed.66 Business may also mean
employment, occupation or profession. Business is also defined as a commercial activity for gain
benefit or advantage.67 Business, like services in business, although are properties, are not
proper subjects of theft under the Revised Penal Code because the same cannot be "taken" or
"occupied." If it were otherwise, as claimed by the respondents, there would be no juridical
difference between the taking of the business of a person or the services provided by him for
gain, vis--vis, the taking of goods, wares or merchandise, or equipment comprising his
business.68 If it was its intention to include "business" as personal property under Article 308 of
the Revised Penal Code, the Philippine Legislature should have spoken in language that is clear
and definite: that business is personal property under Article 308 of the Revised Penal Code.69

We agree with the contention of the petitioner that, as gleaned from the material averments of
the Amended Information, he is charged of "stealing the international long distance calls
belonging to PLDT" and the use thereof, through the ISR. Contrary to the claims of the OSG and
respondent PLDT, the petitioner is not charged of stealing P20,370,651.95 from said
respondent. Said amount of P20,370,651.95 alleged in the Amended Information is the
aggregate amount of access, transmission or termination charges which the PLDT expected from
the international long distance calls of the callers with the use of Baynet Super Orient Cards sold
by Baynet Co. Ltd.

In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property
without the consent of the owner thereof, the Philippine legislature could not have
contemplated the human voice which is converted into electronic impulses or electrical current
which are transmitted to the party called through the PSTN of respondent PLDT and the ISR of
Baynet Card Ltd. within its coverage. When the Revised Penal Code was approved, on December
8, 1930, international telephone calls and the transmission and routing of electronic voice
signals or impulses emanating from said calls, through the PSTN, IPL and ISR, were still non-
existent. Case law is that, where a legislative history fails to evidence congressional awareness
of the scope of the statute claimed by the respondents, a narrow interpretation of the law is
more consistent with the usual approach to the construction of the statute. Penal responsibility
cannot be extended beyond the fair scope of the statutory mandate.70

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. Baynet Card Ltd., through its operator, merely intercepts, reroutes the
calls and passes them to its toll center. Indeed, the parties called receive the telephone calls
from Japan.

In this modern age of technology, telecommunications systems have become so tightly merged
with computer systems that it is difficult to know where one starts and the other finishes. The
telephone set is highly computerized and allows computers to communicate across long
distances.71 The instrumentality at issue in this case is not merely a telephone but a telephone
inexplicably linked to a computerized communications system with the use of Baynet Cards sold
by the Baynet Card Ltd. The corporation uses computers, modems and software, among others,
for its ISR.72

The conduct complained of by respondent PLDT is reminiscent of "phreaking" (a slang term for
the action of making a telephone system to do something that it normally should not allow by
"making the phone company bend over and grab its ankles"). A "phreaker" is one who engages
in the act of manipulating phones and illegally markets telephone services.73 Unless the phone
company replaces all its hardware, phreaking would be impossible to stop. The phone
companies in North America were impelled to replace all their hardware and adopted full digital
switching system known as the Common Channel Inter Office Signaling. Phreaking occurred only
during the 1960s and 1970s, decades after the Revised Penal Code took effect.

The petitioner is not charged, under the Amended Information, for theft of telecommunication
or telephone services offered by PLDT. Even if he is, the term "personal property" under Article
308 of the Revised Penal Code cannot be interpreted beyond its seams so as to include
"telecommunication or telephone services" or computer services for that matter. The word
"service" has a variety of meanings dependent upon the context, or the sense in which it is
used; and, in some instances, it may include a sale. For instance, the sale of food by restaurants
is usually referred to as "service," although an actual sale is involved.74 It may also mean the
duty or labor to be rendered by one person to another; performance of labor for the benefit of
another.75 In the case of PLDT, it is to render local and international telecommunications
services and such other services as authorized by the CPCA issued by the NTC. Even at common
law, neither time nor services may be taken and occupied or appropriated.76 A service is
generally not considered property and a theft of service would not, therefore, constitute theft
since there can be no caption or asportation.77 Neither is the unauthorized use of the
equipment and facilities of PLDT by the petitioner theft under the aforequoted provision of the
Revised Penal Code.78

If it was the intent of the Philippine Legislature, in 1930, to include services to be the subject of
theft, it should have incorporated the same in Article 308 of the Revised Penal Code. The
Legislature did not. In fact, the Revised Penal Code does not even contain a definition of
services.

If taking of telecommunication services or the business of a person, is to be proscribed, it must
be by special statute79 or an amendment of the Revised Penal Code. Several states in the
United States, such as New York, New Jersey, California and Virginia, realized that their criminal
statutes did not contain any provisions penalizing the theft of services and passed laws defining
and penalizing theft of telephone and computer services. The Pennsylvania Criminal Statute
now penalizes theft of services, thus:

(a) Acquisition of services. --

(1) A person is guilty of theft if he intentionally obtains services for himself or for another which
he knows are available only for compensation, by deception or threat, by altering or tampering
with the public utility meter or measuring device by which such services are delivered or by
causing or permitting such altering or tampering, by making or maintaining any unauthorized
connection, whether physically, electrically or inductively, to a distribution or transmission line,
by attaching or maintaining the attachment of any unauthorized device to any cable, wire or
other component of an electric, telephone or cable television system or to a television receiving
set connected to a cable television system, by making or maintaining any unauthorized
modification or alteration to any device installed by a cable television system, or by false token
or other trick or artifice to avoid payment for the service.

In the State of Illinois in the United States of America, theft of labor or services or use of
property is penalized:

(a) A person commits theft when he obtains the temporary use of property, labor or services of
another which are available only for hire, by means of threat or deception or knowing that such
use is without the consent of the person providing the property, labor or services.

In 1980, the drafters of the Model Penal Code in the United States of America arrived at the
conclusion that labor and services, including professional services, have not been included
within the traditional scope of the term "property" in ordinary theft statutes. Hence, they
decided to incorporate in the Code Section 223.7, which defines and penalizes theft of services,
thus:

(1) A person is guilty of theft if he purposely obtains services which he knows are available only
for compensation, by deception or threat, or by false token or other means to avoid payment
for the service. "Services" include labor, professional service, transportation, telephone or other
public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use
of vehicles or other movable property. Where compensation for service is ordinarily paid
immediately upon the rendering of such service, as in the case of hotels and restaurants, refusal
to pay or absconding without payment or offer to pay gives rise to a presumption that the
service was obtained by deception as to intention to pay; (2) A person commits theft if, having
control over the disposition of services of others, to which he is not entitled, he knowingly
diverts such services to his own benefit or to the benefit of another not entitled thereto.

Interestingly, after the State Supreme Court of Virginia promulgated its decision in Lund v.
Commonwealth,80 declaring that neither time nor services may be taken and carried away and
are not proper subjects of larceny, the General Assembly of Virginia enacted Code No. 18-2-98
which reads:

Computer time or services or data processing services or information or data stored in
connection therewith is hereby defined to be property which may be the subject of larceny
under 18.2-95 or 18.2-96, or embezzlement under 18.2-111, or false pretenses under
18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of Alabama of 1975 penalizes
theft of services:

"A person commits the crime of theft of services if: (a) He intentionally obtains services known
by him to be available only for compensation by deception, threat, false token or other means
to avoid payment for the services "

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.

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.

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.

SO ORDERED.









LAUREL V ABROGAR RESO
EN BANC
LUIS MARCOS P. LAUREL, G.R. No. 155076
Petitioner,
Present:
January 13, 2009
x ---------------------------------------------------------------------------------------- x

RESOLUTION
YNARES-SANTIAGO, J.:

On February 27, 2006, this Courts First Division rendered judgment in this case as follows:
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. SO ORDERED.[1]

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:

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 P20,370,651.92 to the damage and prejudice of PLDT, in the said
amount.
CONTRARY TO LAW.[2]

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

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.

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.

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 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 properties capable of appropriation and can be objects of theft.

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.

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.

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.

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 not be subject of theft.

The Office of the Solicitor General (OSG) agrees with respondent PLDT that international phone
calls and the business or service of providing 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] United States v. Carlos[4]
and United States v. Tambunting,[5] 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 that could not have been easily
anticipated.

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 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.

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.

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

Article 308 of the Revised Penal Code provides:

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.


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.

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 theft.

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] 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.

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.

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+ Jurisprudence is settled that to take under the theft provision
of the penal code does not require asportation or carrying away.[8]

To appropriate means to deprive the lawful owner of the thing.*9+ 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
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] 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]


As illustrated in the above cases, appropriation of forces of nature which are 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.

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:

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

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.

It was further ruled that even without the above ordinance the acts of subtraction
punished therein are covered by the provisions on theft of the Penal Code then in force, thus:

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.

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.

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.

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:

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. x x x.

In Strochecker v. Ramirez,[12] this Court stated:
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.

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]

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.

A perusal of the records of this case readily reveals that petitioner and 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+

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

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 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.

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.

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

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

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 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.

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.

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, 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.

SO ORDERED.




























BOARD OF ASSESSMENT APPEALS v MANILA ELECTRIC COMPANY
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-15334 January 31, 1964

BOARD OF ASSESSMENT APPEALS, CITY ASSESSOR and CITY TREASURER OF QUEZON CITY,
petitioners,
vs.
MANILA ELECTRIC COMPANY, respondent.

Assistant City Attorney Jaime R. Agloro for petitioners.
Ross, Selph and Carrascoso for respondent.

PAREDES, J.:

From the stipulation of facts and evidence adduced during the hearing, the following appear:

On October 20, 1902, the Philippine Commission enacted Act No. 484 which authorized the
Municipal Board of Manila to grant a franchise to construct, maintain and operate an electric
street railway and electric light, heat and power system in the City of Manila and its suburbs to
the person or persons making the most favorable bid. Charles M. Swift was awarded the said
franchise on March 1903, the terms and conditions of which were embodied in Ordinance No.
44 approved on March 24, 1903. Respondent Manila Electric Co. (Meralco for short), became
the transferee and owner of the franchise.

Meralco's electric power is generated by its hydro-electric plant located at Botocan Falls, Laguna
and is transmitted to the City of Manila by means of electric transmission wires, running from
the province of Laguna to the said City. These electric transmission wires which carry high
voltage current, are fastened to insulators attached on steel towers constructed by respondent
at intervals, from its hydro-electric plant in the province of Laguna to the City of Manila. The
respondent Meralco has constructed 40 of these steel towers within Quezon City, on land
belonging to it. A photograph of one of these steel towers is attached to the petition for review,
marked Annex A. Three steel towers were inspected by the lower court and parties and the
following were the descriptions given there of by said court:

The first steel tower is located in South Tatalon, Espaa Extension, Quezon City. The findings
were as follows: the ground around one of the four posts was excavated to a depth of about
eight (8) feet, with an opening of about one (1) meter in diameter, decreased to about a quarter
of a meter as it we deeper until it reached the bottom of the post; at the bottom of the post
were two parallel steel bars attached to the leg means of bolts; the tower proper was attached
to the leg three bolts; with two cross metals to prevent mobility; there was no concrete
foundation but there was adobe stone underneath; as the bottom of the excavation was
covered with water about three inches high, it could not be determined with certainty to
whether said adobe stone was placed purposely or not, as the place abounds with this kind of
stone; and the tower carried five high voltage wires without cover or any insulating materials.

The second tower inspected was located in Kamuning Road, K-F, Quezon City, on land owned by
the petitioner approximate more than one kilometer from the first tower. As in the first tower,
the ground around one of the four legs was excavate from seven to eight (8) feet deep and one
and a half (1-) meters wide. There being very little water at the bottom, it was seen that there
was no concrete foundation, but there soft adobe beneath. The leg was likewise provided with
two parallel steel bars bolted to a square metal frame also bolted to each corner. Like the first
one, the second tower is made up of metal rods joined together by means of bolts, so that by
unscrewing the bolts, the tower could be dismantled and reassembled.

The third tower examined is located along Kamias Road, Quezon City. As in the first two towers
given above, the ground around the two legs of the third tower was excavated to a depth about
two or three inches beyond the outside level of the steel bar foundation. It was found that there
was no concrete foundation. Like the two previous ones, the bottom arrangement of the legs
thereof were found to be resting on soft adobe, which, probably due to high humidity, looks like
mud or clay. It was also found that the square metal frame supporting the legs were not
attached to any material or foundation.

On November 15, 1955, petitioner City Assessor of Quezon City declared the aforesaid steel
towers for real property tax under Tax declaration Nos. 31992 and 15549. After denying
respondent's petition to cancel these declarations, an appeal was taken by respondent to the
Board of Assessment Appeals of Quezon City, which required respondent to pay the amount of
P11,651.86 as real property tax on the said steel towers for the years 1952 to 1956. Respondent
paid the amount under protest, and filed a petition for review in the Court of Tax Appeals (CTA
for short) which rendered a decision on December 29, 1958, ordering the cancellation of the
said tax declarations and the petitioner City Treasurer of Quezon City to refund to the
respondent the sum of P11,651.86. The motion for reconsideration having been denied, on April
22, 1959, the instant petition for review was filed.

In upholding the cause of respondents, the CTA held that: (1) the steel towers come within the
term "poles" which are declared exempt from taxes under part II paragraph 9 of respondent's
franchise; (2) the steel towers are personal properties and are not subject to real property tax;
and (3) the City Treasurer of Quezon City is held responsible for the refund of the amount paid.
These are assigned as errors by the petitioner in the brief.

The tax exemption privilege of the petitioner is quoted hereunder:

PAR 9. The grantee shall be liable to pay the same taxes upon its real estate, buildings, plant
(not including poles, wires, transformers, and insulators), machinery and personal property as
other persons are or may be hereafter required by law to pay ... Said percentage shall be due
and payable at the time stated in paragraph nineteen of Part One hereof, ... and shall be in lieu
of all taxes and assessments of whatsoever nature and by whatsoever authority upon the
privileges, earnings, income, franchise, and poles, wires, transformers, and insulators of the
grantee from which taxes and assessments the grantee is hereby expressly exempted. (Par. 9,
Part Two, Act No. 484 Respondent's Franchise; emphasis supplied.)

The word "pole" means "a long, comparatively slender usually cylindrical piece of wood or
timber, as typically the stem of a small tree stripped of its branches; also by extension, a similar
typically cylindrical piece or object of metal or the like". The term also refers to "an upright
standard to the top of which something is affixed or by which something is supported; as a
dovecote set on a pole; telegraph poles; a tent pole; sometimes, specifically a vessel's master
(Webster's New International Dictionary 2nd Ed., p. 1907.) Along the streets, in the City of
Manila, may be seen cylindrical metal poles, cubical concrete poles, and poles of the PLDT Co.
which are made of two steel bars joined together by an interlacing metal rod. They are called
"poles" notwithstanding the fact that they are no made of wood. It must be noted from
paragraph 9, above quoted, that the concept of the "poles" for which exemption is granted, is
not determined by their place or location, nor by the character of the electric current it carries,
nor the material or form of which it is made, but the use to which they are dedicated. In
accordance with the definitions, pole is not restricted to a long cylindrical piece of wood or
metal, but includes "upright standards to the top of which something is affixed or by which
something is supported. As heretofore described, respondent's steel supports consists of a
framework of four steel bars or strips which are bound by steel cross-arms atop of which are
cross-arms supporting five high voltage transmission wires (See Annex A) and their sole function
is to support or carry such wires.

The conclusion of the CTA that the steel supports in question are embraced in the term "poles"
is not a novelty. Several courts of last resort in the United States have called these steel
supports "steel towers", and they denominated these supports or towers, as electric poles. In
their decisions the words "towers" and "poles" were used interchangeably, and it is well
understood in that jurisdiction that a transmission tower or pole means the same thing.

In a proceeding to condemn land for the use of electric power wires, in which the law provided
that wires shall be constructed upon suitable poles, this term was construed to mean either
wood or metal poles and in view of the land being subject to overflow, and the necessary
carrying of numerous wires and the distance between poles, the statute was interpreted to
include towers or poles. (Stemmons and Dallas Light Co. (Tex) 212 S.W. 222, 224; 32-A Words
and Phrases, p. 365.)

The term "poles" was also used to denominate the steel supports or towers used by an
association used to convey its electric power furnished to subscribers and members,
constructed for the purpose of fastening high voltage and dangerous electric wires alongside
public highways. The steel supports or towers were made of iron or other metals consisting of
two pieces running from the ground up some thirty feet high, being wider at the bottom than at
the top, the said two metal pieces being connected with criss-cross iron running from the
bottom to the top, constructed like ladders and loaded with high voltage electricity. In form and
structure, they are like the steel towers in question. (Salt River Valley Users' Ass'n v. Compton, 8
P. 2nd, 249-250.)

The term "poles" was used to denote the steel towers of an electric company engaged in the
generation of hydro-electric power generated from its plant to the Tower of Oxford and City of
Waterbury. These steel towers are about 15 feet square at the base and extended to a height of
about 35 feet to a point, and are embedded in the cement foundations sunk in the earth, the
top of which extends above the surface of the soil in the tower of Oxford, and to the towers are
attached insulators, arms, and other equipment capable of carrying wires for the transmission
of electric power (Connecticut Light and Power Co. v. Oxford, 101 Conn. 383, 126 Atl. p. 1).

In a case, the defendant admitted that the structure on which a certain person met his death
was built for the purpose of supporting a transmission wire used for carrying high-tension
electric power, but claimed that the steel towers on which it is carried were so large that their
wire took their structure out of the definition of a pole line. It was held that in defining the word
pole, one should not be governed by the wire or material of the support used, but was
considering the danger from any elevated wire carrying electric current, and that regardless of
the size or material wire of its individual members, any continuous series of structures intended
and used solely or primarily for the purpose of supporting wires carrying electric currents is a
pole line (Inspiration Consolidation Cooper Co. v. Bryan 252 P. 1016).

It is evident, therefore, that the word "poles", as used in Act No. 484 and incorporated in the
petitioner's franchise, should not be given a restrictive and narrow interpretation, as to defeat
the very object for which the franchise was granted. The poles as contemplated thereon, should
be understood and taken as a part of the electric power system of the respondent Meralco, for
the conveyance of electric current from the source thereof to its consumers. If the respondent
would be required to employ "wooden poles", or "rounded poles" as it used to do fifty years
back, then one should admit that the Philippines is one century behind the age of space. It
should also be conceded by now that steel towers, like the ones in question, for obvious
reasons, can better effectuate the purpose for which the respondent's franchise was granted.

Granting for the purpose of argument that the steel supports or towers in question are not
embraced within the term poles, the logical question posited is whether they constitute real
properties, so that they can be subject to a real property tax. The tax law does not provide for a
definition of real property; but Article 415 of the Civil Code does, by stating the following are
immovable property:

(1) Land, buildings, roads, and constructions of all kinds adhered to the soil;

x x x x x x x x x

(3) Everything attached to an immovable in a fixed manner, in such a way that it cannot be
separated therefrom without breaking the material or deterioration of the object;

(5) Machinery, receptacles, instruments or implements intended by the owner of the tenement
for an industry or works which may be carried in a building or on a piece of land, and which
tends directly to meet the needs of the said industry or works;

The steel towers or supports in question, do not come within the objects mentioned in
paragraph 1, because they do not constitute buildings or constructions adhered to the soil. They
are not construction analogous to buildings nor adhering to the soil. As per description, given by
the lower court, they are removable and merely attached to a square metal frame by means of
bolts, which when unscrewed could easily be dismantled and moved from place to place. They
can not be included under paragraph 3, as they are not attached to an immovable in a fixed
manner, and they can be separated without breaking the material or causing deterioration upon
the object to which they are attached. Each of these steel towers or supports consists of steel
bars or metal strips, joined together by means of bolts, which can be disassembled by
unscrewing the bolts and reassembled by screwing the same. These steel towers or supports do
not also fall under paragraph 5, for they are not machineries, receptacles, instruments or
implements, and even if they were, they are not intended for industry or works on the land.
Petitioner is not engaged in an industry or works in the land in which the steel supports or
towers are constructed.

It is finally contended that the CTA erred in ordering the City Treasurer of Quezon City to refund
the sum of P11,651.86, despite the fact that Quezon City is not a party to the case. It is argued
that as the City Treasurer is not the real party in interest, but Quezon City, which was not a
party to the suit, notwithstanding its capacity to sue and be sued, he should not be ordered to
effect the refund. This question has not been raised in the court below, and, therefore, it cannot
be properly raised for the first time on appeal. The herein petitioner is indulging in legal
technicalities and niceties which do not help him any; for factually, it was he (City Treasurer)
whom had insisted that respondent herein pay the real estate taxes, which respondent paid
under protest. Having acted in his official capacity as City Treasurer of Quezon City, he would
surely know what to do, under the circumstances.

IN VIEW HEREOF, the decision appealed from is hereby affirmed, with costs against the
petitioners.