Luis Marcos Laurel vs Hon.

Zeus Abrogar
GR No. 155076
January 13, 2009

Laurel was charged with Theft under Art. 308 of
the RPC for allegedly taking, stealing, and using
PLDT's international long distance calls by
conducting International Simple Resale (ISR) a
method of outing and completing international
long-distance calls using lines, cables, antennae,
and/or air wave frequency which connect directly
to the local/domestic exchange facilities of the
country where the call is destined. PLDT alleged
that this service was stolen from them using their
own equipment and caused damage to them
amounting to P20,370,651.92.
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.
ISSUE
WON Laurel's act constitutes Theft
HELD
Art.308, RPC: 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.
Elements of Theft under Art.308, RPC:
1. There be taking of Personal Property;
2. Said Personal Property belongs to another;
3. Taking be done with Intent to Gain;
4. Taking be done without the owners consent;
5. No violence against, or intimidation of,
persons or force upon things
Personal Property anything susceptible of
appropriation and not included in Real Property
Thus, the term personal property as used
in Art.308, RPC should be interpreted in the context
of the Civil Code's definition of real and personal
property. Consequently, any personal property,
tangible or intangible, corporeal or
incorporeal, capable of appropriation may be the
subject of theft (*US v Carlos; US v Tambunting; US v
Genato*), so long as the same is not included in the
enumeration of Real Properties under the Civil
Code.
The only requirement for personal property to
capable of theft, is that it be subject to
appropriation.
Art. 416 (3) of the Civil Code deems Forces of
Nature which are brought under the control of
science, as Personal Property.
The appropriation of forces of nature which are
brought under control by science 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, the act of conducting ISR
operations by illegally connecting various
equipment or apparatus to PLDTs telephone
system, through which petitioner is able to resell or
re-route international long distance calls using
PLDTs facilities constituteSubtraction.
Moreover, interest in business should be classified as
personal property since it is capable of
appropriation, and not included in the enumeration
of real properties.
Therefore, the business of providing
telecommunication or telephone service are
personal property which can be the object of theft
under Art. 308 of the RPC. The act of engaging in
ISR is an act of subtraction penalized under the
said article.
While international long-distance calls take the form
of electrical energy and may be considered as
personal property, the said long-distance calls do
not belong to PLDT since it 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.
Since PLDT does not own the said telephone calls,
then it could not validly claim that such telephone
calls were taken without its consent.
What constitutes Theft is the use of the PLDT's
communications facilities without PLDT's consent.
The theft lies in the unlawful taking of the telephone
services & businesses.
The Amended Information should be amended to
show that the property subject of the theft were
services and business of the offended party.

LUIS MARCOS P. LAUREL,
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
January 13, 2009
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
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
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.
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.
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.
G.R. No. 155076 February 27, 2006
LUIS MARCOS P. LAUREL,
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
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.
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

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.
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.