P R O P E R T Y A r t i c l e 4 1 6 P a g e | 28

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-26278 August 4, 1927
LEON SIBAL , plaintiff-appellant,
vs.
EMILIANO . !AL"E# ET AL., defendants.
EMILIANO . !AL"E#, appellee.
J. E. Blanco for appellant.
Felix B. Bautista and Santos and Benitez for appellee.
O$NSON, J.:
The action was commenced in the Cout of !ist "nstance of the
Povince of Talac on the #$th da% of &ecembe #'($. The facts ae
about as conflictin) as it is possible fo facts to be, in the tial causes.
As a fist cause of action the plaintiff alle)ed that the defendant
*italiano Mamawal, deput% sheiff of the Povince of Talac, b% vitue
of a wit of e+ecution issued b% the Cout of !ist "nstance of
Pampan)a, attached and sold to the defendant Emiliano ,. *alde- the
su)a cane planted b% the plaintiff and his tenants on seven pacels of
land descibed in the complaint in the thid paa)aph of the fist cause
of action. that within one %ea fom the date of the attachment and sale
the plaintiff offeed to edeem said su)a cane and tendeed to the
defendant *alde- the amount sufficient to cove the pice paid b% the
latte, the inteest theeon and an% assessments o ta+es which he
ma% have paid theeon afte the puchase, and the inteest
coespondin) theeto and that *alde- efused to accept the mone%
and to etun the su)a cane to the plaintiff.
As a second cause of action, the plaintiff alle)ed that the defendant
Emiliano ,. *alde- was attemptin) to havest the pala% planted in fou
of the seven pacels mentioned in the fist cause of action. that he had
havested and ta/en possession of the pala% in one of said seven
pacels and in anothe pacel descibed in the second cause of action,
amountin) to 011 cavans. and that all of said pala% belon)ed to the
plaintiff.
Plaintiff pa%ed that a wit of pelimina% in2unction be issued a)ainst
the defendant Emiliano ,. *alde- his attone%s and a)ents, estainin)
them 3#4 fom distibutin) him in the possession of the pacels of land
descibed in the complaint. 3(4 fom ta/in) possession of, o havestin)
the su)a cane in 5uestion. and 304 fom ta/in) possession, o
havestin) the pala% in said pacels of land. Plaintiff also pa%ed that a
2ud)ment be endeed in his favo and a)ainst the defendants odein)
them to consent to the edemption of the su)a cane in 5uestion, and
that the defendant *alde- be condemned to pa% to the plaintiff the sum
of P#,167 the value of pala% havested b% him in the two pacels
above-mentioned ,with inteest and costs.
8n &ecembe (9, #'($, the cout, afte heain) both paties and upon
appoval of the bond fo P7,111 filed b% the plaintiff, issued the wit of
pelimina% in2unction pa%ed fo in the complaint.
The defendant Emiliano ,. *alde-, in his amended answe, denied
)eneall% and specificall% each and eve% alle)ation of the complaint
and step up the followin) defenses:
3a4 That the su)a cane in 5uestion had the natue of
pesonal popet% and was not, theefoe, sub2ect to
edemption.
3b4 That he was the owne of pacels #, ( and 9 descibed in
the fist cause of action of the complaint.
3c4 That he was the owne of the pala% in pacels #, ( and 9.
and
3d4 That he neve attempted to havest the pala% in pacels $
and 6.
The defendant Emiliano ,. *alde- b% wa% of counteclaim, alle)ed that
b% eason of the pelimina% in2unction he was unable to )athe the
su)a cane, su)a-cane shoots 3puntas de cana dulce4 pala% in said
pacels of land, epesentin) a loss to him of P;,096.(1 and that, in
addition theeto, he suffeed dama)es amountin) to P0,$6;.67. <e
pa%ed, fo a 2ud)ment 3#4 absolvin) him fom all liabilit% unde the
complaint. 3(4 declain) him to be the absolute owne of the su)a
cane in 5uestion and of the pala% in pacels #, ( and 9. and 304
odein) the plaintiff to pa% to him the sum of P##,;00.97, epesentin)
the value of the su)a cane and pala% in 5uestion, includin) dama)es.
=pon the issues thus pesented b% the pleadin)s the cause was
bou)ht on fo tial. Afte heain) the evidence, and on Apil (;, #'(7,
the <onoable Ca%etano >u/ban, 2ud)e, endeed a 2ud)ment a)ainst
the plaintiff and in favo of the defendants ?
3#4 <oldin) that the su)a cane in 5uestion was pesonal
popet% and, as such, was not sub2ect to edemption.
3(4 Absolvin) the defendants fom all liabilit% unde the
complaint. and
304 Condemnin) the plaintiff and his sueties Cenon de la
Cu-, ,uan @an)alan) and Macos @ibal to 2ointl% and
seveall% pa% to the defendant Emiliano ,. *alde- the sum of
P',$0'.1; as follows:
3a4 P7,969.$1, the value of the su)a cane.
3b4 #,$06.7;, the value of the su)a-cane shoots.
3c4 7$7.11, the value of pala% havested b%
plaintiff.
3d4 711.11, the value of #61 cavans of pala% which
the defendant was not able to aise b% eason of
the in2unction, at P$ cavan. ',$0'.1; !om that
2ud)ment the plaintiff appealed and in his
assi)nments of eo contends that the lowe cout
eed: 3#4 "n holdin) that the su)a cane in
5uestion was pesonal popet% and, theefoe, not
sub2ect to edemption.
3(4 "n holdin) that pacels # and ( of the complaint belon)ed
to *alde-, as well as pacels 9 and ;, and that the pala%
theein was planted b% *alde-.
304 "n holdin) that *alde-, b% eason of the pelimina%
in2unction failed to eali-ed P7,969.$1 fom the su)a cane
and P#,$06.7; fom su)a-cane shoots 3puntas de cana
dulce4.
3$4 "n holdin) that, fo failue of plaintiff to )athe the su)a
cane on time, the defendant was unable to aise pala% on
the land, which would have netted him the sum of P711.
and.
364 "n condemnin) the plaintiff and his sueties to pa% to the
defendant the sum of P',$0'.1;.
"t appeas fom the ecod:
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 29
3#4 That on Ma% ##, #'(0, the deput% sheiff of the Povince
of Talac, b% vitue of wit of e+ecution in civil case No.
(1(10 of the Cout of !ist "nstance of Manila 3Maconda% A
Co., "nc. vs. >eon @ibal4,levied an attachment on ei)ht
pacels of land belon)in) to said >eon @ibal, situated in the
Povince of Talac, desi)nated in the second of attachment
as pacels #, (, 0, $, 6, 7, 9 and ; 3E+hibit B, E+hibit (-A4.
3(4 That on ,ul% 01, #'(0, Maconda% A Co., "nc., bou)ht
said ei)ht pacels of land, at the auction held b% the sheiff of
the Povince of Talac, fo the sum to P$,(90.'0, havin) paid
fo the said pacels sepaatel% as follows 3E+hibit C, and (-
A4:
Pacel
# .........................................................
............
P#.11
( .........................................................
............
(,111.11
0 .........................................................
............
#(1.'0
$ .........................................................
............
#,111.11
6 .........................................................
............
#.11
7 .........................................................
............
#.11
9 with the house
theeon ..........................
#61.11
; .........................................................
............
#,111.11
BBBBBBBB
BB
$,(90.'0
304 That within one %ea fom the sale of said pacel of land,
and on the ($th da% of @eptembe, #'(0, the 2ud)ment
debto, >eon @ibal, paid P(,111 to Maconda% A Co., "nc.,
fo the account of the edemption pice of said pacels of
land, without specif%in) the paticula pacels to which said
amount was to applied. The edemption pice said ei)ht
pacels was educed, b% vitue of said tansaction, to
P(,69'.'9 includin) inteest 3E+hibit C and (4.
The ecod futhe shows:
3#4 That on Apil (', #'($, the defendant *italiano Mamawal,
deput% sheiff of the Povince of Talac, b% vitue of a wit of
e+ecution in civil case No. #01# of the Povince of
Pampan)a 3Emiliano ,. *alde- vs. >eon @ibal #.C ? the
same paties in the pesent case4, attached the pesonal
popet% of said >eon @ibal located in Talac, amon) which
was included the su)a cane now in 5uestion in the seven
pacels of land descibed in the complaint 3E+hibit A4.
3(4 That on Ma% ' and #1, #'($, said deput% sheiff sold at
public auction said pesonal popeties of >eon @ibal,
includin) the su)a cane in 5uestion to Emilio ,. *alde-, who
paid theefo the sum of P#,661, of which P711 was fo the
su)a cane 3E+hibit A4.
304 That on Apil (',#'($, said deput% sheiff, b% vitue of
said wit of e+ecution, also attached the eal popet% of said
>eon @ibal in Talac, includin) all of his i)hts, inteest and
paticipation theein, which eal popet% consisted of eleven
pacels of land and a house and camain situated in one of
said pacels 3E+hibit A4.
3$4 That on ,une (6, #'($, ei)ht of said eleven pacels,
includin) the house and the camain, wee bou)ht b% Emilio
,. *alde- at the auction held b% the sheiff fo the sum of
P#(,(11. @aid ei)ht pacels wee desi)nated in the
cetificate of sale as pacels #, 0, $, 6, 7, 9, #1 and ##. The
house and camain wee situated on pacel 9 3E+hibit A4.
364 That the emainin) thee pacels, indicated in the
cetificate of the sheiff as pacels (, #(, and #0, wee
eleased fom the attachment b% vitue of claims pesented
b% A)ustin Cu%u)an and &omiciano Ti-on 3E+hibit A4.
374 That on the same date, ,une (6, #'($, Maconda% A Co.
sold and conve%ed to Emilio ,. *alde- fo P(,69'.'9 all of its
i)hts and inteest in the ei)ht pacels of land ac5uied b% it
at public auction held b% the deput% sheiff of Talac in
connection with civil case No. (1(10 of the Cout of !ist
"nstance of Manila, as stated above. @aid amount
epesented the unpaid balance of the edemption pice of
said ei)ht pacels, afte pa%ment b% >eon @ibal of P(,111 on
@eptembe ($, #'(0, fo the account of the edemption
pice, as stated above. 3E+hibit C and (4.
The foe)oin) statement of facts shows:
3#4 The Emilio ,. *alde- bou)ht the su)a cane in 5uestion,
located in the seven pacels of land descibed in the fist
cause of action of the complaint at public auction on Ma% '
and #1, #'($, fo P711.
3(4 That on ,ul% 01, #'(0, Maconda% A Co. became the
owne of ei)ht pacels of land situated in the Povince of
Talac belon)in) to >eon @ibal and that on @eptembe ($,
#'(0, >eon @ibal paid to Maconda% A Co. P(,111 fo the
account of the edemption pice of said pacels.
304 That on ,une (6, #'($, Emilio ,. *alde- ac5uied fom
Maconda% A Co. all of its i)hts and inteest in the said ei)ht
pacels of land.
3$4 That on ,une (6, #'($, Emilio ,. *alde- also ac5uied all
of the i)hts and inteest which >eon @ibal had o mi)ht have
had on said ei)ht pacels b% vitue of the P(,111 paid b% the
latte to Maconda%.
364 That Emilio ,. *alde- became the absolute owne of said
ei)ht pacels of land.
The fist 5uestion aised b% the appeal is, whethe the su)a cane in
5uestion is pesonal o eal popet%. "t is contended that su)a cane
comes unde the classification of eal popet% as Dun)atheed
poductsD in paa)aph ( of aticle 00$ of the Civil Code. @aid
paa)aph ( of aticle 00$ enumeates as eal popet% the followin):
Tees, plants, and un)atheed poducts, while the% ae anne+ed to the
land o fom an inte)al pat of an% immovable popet%.D That aticle,
howeve, has eceived in ecent %eas an intepetation b% the Tribunal
Supremo de Espaa, which holds that, unde cetain conditions,
)owin) cops ma% be consideed as pesonal popet%. 3&ecision of
Mach #;, #'1$, vol. '9, Civil ,uispudence of @pain.4
Manesa, the eminent commentato of the @panish Civil Code, in
discussin) section 00$ of the Civil Code, in view of the ecent
decisions of the supeme Cout of @pain, admits that )owin) cops ae
sometimes consideed and teated as pesonal popet%. <e sa%s:
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 30
No ceemos, sin emba)o, 5ue esto e+clu%a la
e+cepcion5ue muchos autoes hacen tocante a la venta de
toda cosecha o de pate de ella cuando aun no esta co)ida
3cosa fecuente con la uva% % la naan2a4, % a la de lenas,
consideando ambas como muebles. El Tibunal @upemo,
en sentencia de #; de ma-o de #'1$, al entende sobe un
contato de aendamiento de un pedio ustico, esuelve
5ue su teminacion po desahucio no e+tin)ue los deechos
del aendaio, paa ecolecta o pecibi los futos
coespondientes al aEo a)icola, dento del 5ue nacieon
a5uellos deechos, cuando el aendo ha pecibido a su ve-
el impote de la enta inte)a coespondiente, aun cuando
lo ha%a sido po pecepto le)al duante el cuso del 2uicio,
fundandose paa ello, no solo en 5ue de ota suete se daia
al desahucio un alcance 5ue no tiene, sino en 5ue, % esto es
lo inteesante a nuesto poposito, la consideracion de
inmuebles que el articulo 334 del odi!o ivil atribu!e a los
frutos pendientes" no les priva del caracter de productos
pertenecientes" como tales" a quienes a ellos ten!a derec#o,
"le)ado el momento de su ecoleccion.
+ + + + + + + + +
Mas actualmente % po vitud de la nueva edicion de la >e%
<ipotecaia, publicada en #7 de diciembe de #'1', con las
efomas intoducidas po la de (# de abil anteio, la
hipoteca, salvo pacto e+peso 5ue dispon)a lo contaio, %
cual5uiea 5ue sea la natuale-a % foma de la obli)acion
5ue )aantice, no comprende los frutos cual5uiea 5ue sea
la situacion en 5ue se encuente. 30 Manesa, 6. edicion,
pa)s. ((, (0.4
!om the foe)oin) it appeas 3#4 that, unde @panish authoities,
pendin) fuits and un)atheed poducts ma% be sold and tansfeed as
pesonal popet%. 3(4 that the @upeme Cout of @pain, in a case of
e2ectment of a lessee of an a)icultual land, held that the lessee was
entitled to )athe the poducts coespondin) to the a)icultual %ea,
because said fuits did not )o with the land but belon)ed sepaatel% to
the lessee. and 304 that unde the @panish Mot)a)e >aw of #'1', as
amended, the mot)a)e of a piece of land does not include the fuits
and poducts e+istin) theeon, unless the contact e+pessl% povides
othewise.
An e+amination of the decisions of the @upeme Cout of >ouisiana
ma% )ive us some li)ht on the 5uestion which we ae discussin).
Aticle $76 of the Civil Code of >ouisiana, which coesponds to
paa)aph ( of aticle 00$ of ou Civil Code, povides: D@tandin) cops
and the fuits of tees not )atheed, and tees befoe the% ae cut
down, ae li/ewise immovable, and ae consideed as pat of the land
to which the% ae attached.D
The @upeme Cout of >ouisiana havin) occasion to intepet that
povision, held that in some cases Dstandin) copsD ma% be consideed
and dealt with as pesonal popet%. "n the case of $umber o. vs.
S#eriff and Tax ollector 3#17 >a., $#;4 the @upeme Cout said:
DTue, b% aticle $76 of the Civil Code it is povided that Fstandin) cops
and the fuits of tees not )atheed and tees befoe the% ae cut
down . . . ae consideed as pat of the land to which the% ae attached,
but the immovabilit% povided fo is onl% one in abstacto and without
efeence to i)hts on o to the cop ac5uied b% othes than the
ownes of the popet% to which the cop is attached. . . . The e+istence
of a i)ht on the )owin) cop is a mobili-ation b% anticipation, a
)athein) as it wee in advance, endein) the cop movable 5uoad the
i)ht ac5uied theein. 8u 2uispudence eco)ni-es the possible
mobili-ation of the )owin) cop.D 3Citi-ensF Ban/ vs. Gilt-, 0# >a.
Ann., ($$. Poche vs. Bodin, (; >a., Ann., 97#. @andel vs. &ou)lass,
(9 >a. Ann., 7('. >ewis vs. Hlot-, 0' >a. Ann., (79.4
D"t is tue,D as the @upeme Cout of >ouisiana said in the case
of %orc#e vs. Bodin 3(; >a. An., 97#4 that Daticle $76 of the Revised
Code sa%s that standin) cops ae consideed as immovable and as
pat of the land to which the% ae attached, and aticle $77 declaes
that the fuits of an immovable )atheed o poduced while it is unde
sei-ue ae consideed as ma/in) pat theeof, and incued to the
benefit of the peson ma/in) the sei-ue. But the evident meanin) of
these aticles, is whee the cops belon) to the owne of the plantation
the% fom pat of the immovable, and whee it is sei-ed, the fuits
)atheed o poduced inue to the benefit of the sei-in) cedito.
A cop aised on leased pemises in no sense foms pat of
the immovable. "t belon)s to the lessee, and ma% be sold b%
him, whethe it be )atheed o not, and it ma% be sold b% his
2ud)ment ceditos. "f it necessail% foms pat of the leased
pemises the esult would be that it could not be sold unde
e+ecution sepaate and apat fom the land. "f a lessee
obtain supplies to ma/e his cop, the factoFs lien would not
attach to the cop as a sepaate thin) belon)in) to his
debto, but the land belon)in) to the lesso would be
affected with the ecoded pivile)e. The law cannot be
constued so as to esult in such absud conse5uences.
"n the case of itizen&s Ban' vs. (iltz 30# >a. Ann., ($$4the cout said:
"f the cop quoad the pled)e theeof unde the act of #;9$
was an immovable, it would be destuctive of the ve%
ob2ects of the act, it would ende the pled)e of the cop
ob2ects of the act, it would ende the pled)e of the cop
impossible, fo if the cop was an insepaable pat of the
ealt% possession of the latte would be necessa% to that of
the fome. but such is not the case. Tue, b% aticle $76 C.
C. it is povided that Dstandin) cops and the fuits of tees
not )atheed and tees befoe the% ae cut down ae li/ewise
immovable and ae consideed as pat of the land to which
the% ae attached.D but the immovabilit% povided fo is onl%
one in abstracto and without efeence to i)hts on o to the
cop ac5uied b% othe than the ownes of the popet% to
which the cop was attached. The immovabilit% of a )owin)
cop is in the ode of thin)s tempoa%, fo the cop passes
fom the state of a )owin) to that of a )atheed one, fom an
immovable to a movable. The e+istence of a i)ht on the
)owin) cop is a mobili-ation b% anticipation, a )athein) as
it wee in advance, endein) the cop movable quoad the
i)ht ac5uied theeon. The povision of ou Code is identical
with the Napoleon Code 6(1, and we ma% theefoe obtain
li)ht b% an e+amination of the 2uispudence of !ance.
The ule above announced, not onl% b% the Tribunal Supremo de
Espaa but b% the @upeme Cout of >ouisiana, is followed in
pacticall% eve% state of the =nion.
!om an e+amination of the epots and codes of the @tate of Califonia
and othe states we find that the settle doctine followed in said states
in connection with the attachment of popet% and e+ecution of
2ud)ment is, that )owin) cops aised b% %eal% labo and cultivation
ae consideed pesonal popet%. 37 Copu- ,uis, p. #'9. #9 Copus
,uis, p. 09'. (0 Copus ,uis, p. 0(': Raventas vs. Ieen, 69 Cal.,
(6$. Nois vs. Gatson, 66 Am. &ec., #7#. Ghipple vs. !oot, 0 Am.
&ec., $$(. # Ben2amin on @ales, sec. #(7. McHen-ie vs. >ample%, 0#
Ala., 6(7. Cinevs. Tifts and Co., 76 Ia., 7$$. Iillitt vs. Tua+, (9
Minn., 6(;. Peston vs. R%an, $6 Mich., #9$. !eeman on E+ecution,
vol. #, p. $0;. &a/e on Attachment, sec. ($'. Mechem on @ales, sec.
(11 and 970.4
M. Mechem sa%s that a valid sale ma% be made of a thin), which
thou)h not %et actuall% in e+istence, is easonabl% cetain to come into
e+istence as the natual incement o usual incident of somethin)
alead% in e+istence, and then belon)in) to the vendo, and then title
will vest in the bu%e the moment the thin) comes into e+istence.
3Emeson vs. Euopean Railwa% Co., 79 Me., 0;9. Cuttin) vs. Pac/es
E+chan)e, (# Am. @t. Rep., 70.4 Thin)s of this natue ae said to have
a potential e+istence. A man ma% sell popet% of which he is
potentiall% and not actuall% possessed. <e ma% ma/e a valid sale of
the wine that a vine%ad is e+pected to poduce. o the )ain a field ma%
)ow in a )iven time. o the mil/ a cow ma% %ield duin) the comin)
%ea. o the wool that shall theeafte )ow upon sheep. o what ma%
be ta/en at the ne+t cast of a fishemanFs net. o fuits to )ow. o
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 31
%oun) animals not %et in e+istence. o the )ood will of a tade and the
li/e. The thin) sold, howeve, must be specific and identified. The%
must be also owned at the time b% the vendo. 3<ull vs. <ull, $; Conn.,
(61 J$1 Am. Rep., #76K.4
"t is contended on the pat of the appellee that paa)aph ( of aticle
00$ of the Civil Code has been modified b% section $61 of the Code of
Civil Pocedue as well as b% Act No. #61;, the Chattel Mot)a)e >aw.
@aid section $61 enumeates the popet% of a 2ud)ment debto which
ma% be sub2ected to e+ecution. The petinent potion of said section
eads as follows: DAll )oods, chattels, mone%s, and othe popet%, both
eal and pesonal, L L L shall be liable to e+ecution. @aid section $61
and most of the othe sections of the Code of Civil Pocedue elatin)
to the e+ecution of 2ud)ment wee ta/en fom the Code of Civil
Pocedue of Califonia. The @upeme Cout of Califonia, unde
section 7;; of the Code of Civil Pocedue of that state 3Pomeo%, p.
$($4 has held, without vaiation, that )owin) cops wee pesonal
popet% and sub2ect to e+ecution.
Act No. #61;, the Chattel Mot)a)e >aw, full% eco)ni-ed that )owin)
cops ae pesonal popet%. @ection ( of said Act povides: DAll
pesonal popet% shall be sub2ect to mot)a)e, a)eeabl% to the
povisions of this Act, and a mot)a)e e+ecuted in pusuance theeof
shall be temed a chattel mot)a)e.D @ection 9 in pat povides: D"f
)owin) cops be mot)a)ed the mot)a)e ma% contain an a)eement
stipulatin) that the mot)a)o binds himself popel% to tend, cae fo
and potect the cop while )owin).
"t is clea fom the foe)oin) povisions that Act No. #61; was enacted
on the assumption that D)owin) copsD ae pesonal popet%. This
consideation tends to suppot the conclusion heeinbefoe stated, that
paa)aph ( of aticle 00$ of the Civil Code has been modified b%
section $61 of Act No. #'1 and b% Act No. #61; in the sense that
Dun)atheed poductsD as mentioned in said aticle of the Civil Code
have the natue of pesonal popet%. "n othe wods, the phase
Dpesonal popet%D should be undestood to include Dun)atheed
poducts.D
At common law, and )eneall% in the =nited @tates, all
annual cops which ae aised b% %eal% manuance and
labo, and essentiall% owe thei annual e+istence to
cultivation b% man, . ma% be levied on as pesonal popet%.D
3(0 C. ,., p. 0('.4 8n this 5uestion !eeman, in his teatise
on the >aw of E+ecutions, sa%s: DCops, whethe )owin) o
standin) in the field ead% to be havested, ae, when
poduced b% annual cultivation, no pat of the ealt%. The%
ae, theefoe, liable to volunta% tansfe as chattels. "t is
e5uall% well settled that the% ma% be sei-ed and sold unde
e+ecution. 3!eeman on E+ecutions, vol. p. $0;.4
Ge ma%, theefoe, conclude that paa)aph ( of aticle 00$ of the Civil
Code has been modified b% section $61 of the Code of Civil Pocedue
and b% Act No. #61;, in the sense that, fo the pupose of attachment
and e+ecution, and fo the puposes of the Chattel Mot)a)e >aw,
Dun)atheed poductsD have the natue of pesonal popet%. The lowe
cout, theefoe, committed no eo in holdin) that the su)a cane in
5uestion was pesonal popet% and, as such, was not sub2ect to
edemption.
All the othe assi)nments of eo made b% the appellant, as above
stated, elate to 5uestions of fact onl%. Befoe entein) upon a
discussion of said assi)nments of eo, we deem it oppotune to ta/e
special notice of the failue of the plaintiff to appea at the tial duin)
the pesentation of evidence b% the defendant. <is absence fom the
tial and his failue to coss-e+amine the defendant have lent
consideable wei)ht to the evidence then pesented fo the defense.
Comin) not to the owneship of pacels # and ( descibed in the fist
cause of action of the complaint, the plaintiff made a futile attempt to
show that said two pacels belon)ed to A)ustin Cu%u)an and wee the
identical pacel ( which was e+cluded fom the attachment and sale of
eal popet% of @ibal to *alde- on ,une (6, #'($, as stated above. A
compaison of the desciption of pacel ( in the cetificate of sale b%
the sheiff 3E+hibit A4 and the desciption of pacels # and ( of the
complaint will eadil% show that the% ae not the same.
The desciption of the pacels in the complaint is as follows:
#. >a caEa dulce sembada po los in5uilinos del e2ecutado
>eon @ibal #.C en una pacela de teeno de la petenencia
del citado e2ecutado, situada en >ibutad, Culubasa, Bamban,
Talac, de unas dos hectaeas poco mas o menos de
supeficie.
(. >a caEa dulce sembada po el in5uilino del e2ecutado
>eon @ibal #.C, "lamado Ale2ando Policapio, en una pacela
de teeno de la petenencia del e2ecutado, situada en
&ala%ap, Culubasa, Bamban, Talac de unas dos hectaeas
de supeficie poco mas o menos.D The desciption of pacel
( )iven in the cetificate of sale 3E+hibit A4 is as follows:
(a. Teeno pala%eo situado en Culubasa, Bamban, Talac,
de #99,1'1 metos cuadados de supeficie, linda al N. con
Canuto @ibal, Esteban >a-atin and Ale2ando &a%it. al E.
con !ancisco &i-on, !elipe MaEu and othes. al @. con
Ale2ando &a%it, "sido @antos and Melecio MaEu. % al 8.
con Ale2ando &a%it and Paulino *e)aa. Ta+ No. (;6$,
vado amillaado P$,(11 pesos.
8n the othe hand the evidence fo the defendant pupoted to show
that pacels # and ( of the complaint wee included amon) the pacels
bou)ht b% *alde- fom Maconda% on ,une (6, #'($, and
coesponded to pacel $ in the deed of sale 3E+hibit B and (4, and
wee also included amon) the pacels bou)ht b% *alde- at the auction
of the eal popet% of >eon @ibal on ,une (6, #'($, and coesponded
to pacel 0 in the cetificate of sale made b% the sheiff 3E+hibit A4. The
desciption of pacel $ 3E+hibit (4 and pacel 0 3E+hibit A4 is as follows:
%arcels )o. 4. ? Teeno pala%eo, ubicado en el baio de
Culubasa,Bamban, Talac, ". !. de #$6,111 metos
cuadados de supeficie, lindante al Note con Road of the
baio of Culubasa that )oes to Concepcion. al Este con
,uan &i-on. al @u con >ucio MaEo % Canuto @ibal % al
8este con Esteban >a-atin, su valo amillaado asciende a
la suma de P(,''1. Ta+ No. (;67.
As will be noticed, thee is hadl% an% elation between pacels # and (
of the complaint and pacel $ 3E+hibit ( and B4 and pacel 0 3E+hibit A4.
But, inasmuch as the plaintiff did not cae to appea at the tial when
the defendant offeed his evidence, we ae inclined to )ive moe
wei)ht to the evidence adduced b% him that to the evidence adduced
b% the plaintiff, with espect to the owneship of pacels # and ( of the
compliant. Ge, theefoe, conclude that pacels # and ( of the
complaint belon) to the defendant, havin) ac5uied the same fom
Maconda% A Co. on ,une (6, #'($, and fom the plaintiff >eon @ibal
on the same date.
"t appeas, howeve, that the plaintiff planted the pala% in said pacels
and havested theefom #'1 cavans. Thee bein) no evidence of bad
faith on his pat, he is theefoe entitled to one-half of the cop, o '6
cavans. <e should theefoe be condemned to pa% to the defendant fo
'6 cavans onl%, at P0.$1 a cavan, o the sum of P0(0, and not fo the
total of #'1 cavans as held b% the lowe cout.
As to the owneship of pacel 9 of the complaint, the evidence shows
that said pacel coesponds to pacel # of the deed of sale of
Maconda% A Co, to *alde- 3E+hibit B and (4, and to pacel $ in the
cetificate of sale to *alde- of eal popet% belon)in) to @ibal,
e+ecuted b% the sheiff as above stated 3E+hibit A4. *alde- is theefoe
the absolute owne of said pacel, havin) ac5uied the inteest of both
Maconda% and @ibal in said pacel.
Gith efeence to the pacel of land in Pacalcal, Talac, descibed in
paa)aph 0 of the second cause of action, it appeas fom the
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 32
testimon% of the plaintiff himself that said pacel coesponds to pacel
; of the deed of sale of Maconda% to *alde- 3E+hibit B and (4 and to
pacel #1 in the deed of sale e+ecuted b% the sheiff in favo of *alde-
3E+hibit A4. *alde- is theefoe the absolute owne of said pacel,
havin) ac5uied the inteest of both Maconda% and @ibal theein.
"n this connection the followin) facts ae woth% of mention:
E+ecution in favo of Maconda% A Co., Ma% ##, #'(0. Ei)ht pacels of
land wee attached unde said e+ecution. @aid pacels of land wee
sold to Maconda% A Co. on the 01th da% of ,ul%, #'(0. Rice paid
P$,(90.'0. 8n @eptembe ($, #'(0, >eon @ibal paid to Maconda% A
Co. P(,111 on the edemption of said pacels of land. 3@ee E+hibits B
and C 4.
Attachment, Apil (', #'($, in favo of *alde-. Pesonal popet% of
@ibal was attached, includin) the su)a cane in 5uestion. 3E+hibit A4
The said pesonal popet% so attached, sold at public auction Ma% '
and #1, #'($. Apil (', #'($, the eal popet% was attached unde the
e+ecution in favo of *alde- 3E+hibit A4. ,une (6, #'($, said eal
popet% was sold and puchased b% *alde- 3E+hibit A4.
,une (6, #'($, Maconda% A Co. sold all of the land which the% had
puchased at public auction on the 01th da% of ,ul%, #'(0, to *alde-.
As to the loss of the defendant in su)a cane b% eason of the
in2unction, the evidence shows that the su)a cane in 5uestion coveed
an aea of (( hectaes and 71 aes 3E+hibits ;, ;-b and ;-c4. that said
aea would have %ielded an avea)e cop of #10' picos and 71 cates.
that one-half of the 5uantit%, o 6#' picos and ;1 cates would have
coesponded to the defendant, as owne. that duin) the season the
su)a was sellin) at P#0 a pico 3E+hibit 6 and 6-A4. Theefoe, the
defendant, as owne, would have netted P 7,969.$1 fom the su)a
cane in 5uestion. The evidence also shows that the defendant could
have ta/en fom the su)a cane #,1#9,111 su)a-cane shoots 3puntas
de cana4 and not #,#91,111 as computed b% the lowe cout. &uin)
the season the shoots wee sellin) at P#.(1 a thousand 3E+hibits 7 and
94. The defendant theefoe would have netted P#,((1.$1 fom su)a-
cane shoots and not P#,$06.7; as allowed b% the lowe cout.
As to the pala% havested b% the plaintiff in pacels # and ( of the
complaint, amountin) to #'1 cavans, one-half of said 5uantit% should
belon) to the plaintiff, as stated above, and the othe half to the
defendant. The cout eed in awadin) the whole cop to the
defendant. The plaintiff should theefoe pa% the defendant fo '6
cavans onl%, at P0.$1 a cavan, o P0(0 instead of P7$7 as allowed b%
the lowe cout.
The evidence also shows that the defendant was pevented b% the acts
of the plaintiff fom cultivatin) about #1 hectaes of the land involved in
the liti)ation. <e e+pected to have aised about 711 cavans of pala%,
011 cavans of which would have coesponded to him as owne. The
lowe cout has wisel% educed his shae to #61 cavans onl%. At P$ a
cavan, the pala% would have netted him P711.
"n view of the foe)oin), the 2ud)ment appealed fom is heeb%
modified. The plaintiff and his sueties Cenon de la Cu-, ,uan
@an)alan) and Macos @ibal ae heeb% odeed to pa% to the
defendant 2ointl% and seveall% the sum of P;,'11.;1, instead of
P',$0'.1; allowed b% the lowe cout, as follows:
P7,969.$1 fo the su)a cane.
#,((1.$1 fo the su)a cane shoots.
0(0.11
fo the pala% havested b% plaintiff in
pacels # and (.
711.11
fo the pala% which defendant could have
aised.
;,'11.;1
BBBBBBBBBBBB
"n all othe espects, the 2ud)ment appealed fom is heeb% affimed,
with costs. @o odeed.
Street" *alcolm" +illamor" ,omualdez and +illa-,eal." JJ." concur.
Republic of the Philippines
SUPREME COURT
Manila
!"R@T &"*"@"8N
G.R. No. 1%%&76 '()*u+*, 27, 2&&6
LUIS MARCOS P. LAUREL, Petitione,
vs.
$ON. #EUS C. ABROGAR, P*(s-.-/g u.g( o0 t1( R(g-o/+2 T*-+2
Cou*t, M+3+t- C-t,, B*+/41 1%&, PEOPLE O' T$E P$ILIPPINES5
P$ILIPPINE LONG "ISTANCE TELEP$ONE
COMPAN6, Respondents.
& E C " @ " 8 N
CALLEO, SR., J.:
Befoe us is a Petition fo Review on Cetioai of the &ecision
#
of the
Cout of Appeals 3CA4 in CA-I.R. @P No. 7;;$# affimin) the 8de
issued b% ,ud)e Meus C. Abo)a, Re)ional Tial Cout 3RTC4, Ma/ati
Cit%, Banch #61, which denied the DMotion to Nuash 3Gith Motion to
&efe Aai)nment4D in Ciminal Case No. ''-($(6 fo theft.
Philippine >on) &istance Telephone Compan% 3P>&T4 is the holde of
a le)islative fanchise to ende local and intenational
telecommunication sevices unde Republic Act No. 91;(.
(
=nde said
law, P>&T is authoi-ed to establish, opeate, mana)e, lease, maintain
and puchase telecommunication s%stems, includin) tansmittin),
eceivin) and switchin) stations, fo both domestic and intenational
calls. !o this pupose, it has installed an estimated #.9 million
telephone lines nationwide. P>&T also offes othe sevices as
authoi-ed b% Cetificates of Public Convenience and Necessit%
3CPCN4 dul% issued b% the National Telecommunications Commission
3NTC4, and opeates and maintains an "ntenational Iatewa% !acilit%
3"I!4. The P>&T netwo/ is thus pincipall% composed of the Public
@witch Telephone Netwo/ 3P@TN4, telephone handsets andOo
telecommunications e5uipment used b% its subscibes, the wies and
cables lin/in) said telephone handsets andOo telecommunications
e5uipment, antenna, the "I!, and othe telecommunications
e5uipment which povide inteconnections.
0
.avvp#il.net
P>&T alle)es that one of the altenative callin) pattens that constitute
netwo/ faud and violate its netwo/ inte)it% is that which is /nown as
"ntenational @imple Resale 3"@R4. "@R is a method of outin) and
completin) intenational lon) distance calls usin) "ntenational Pivate
>eased >ines 3"P>4, cables, antenna o ai wave o fe5uenc%, which
connect diectl% to the local o domestic e+chan)e facilities of the
teminatin) count% 3the count% whee the call is destined4. The "P> is
lin/ed to switchin) e5uipment which is connected to a P>&T telephone
lineOnumbe. "n the pocess, the calls b%pass the "I! found at the
teminatin) count%, o in some instances, even those fom the
oi)inatin) count%.
$
8ne such altenative callin) sevice is that offeed b% Ba%net Co., >td.
3Ba%net4 which sells DBa% @upe 8ient CadD phone cads to people
who call thei fiends and elatives in the Philippines. Gith said cad,
one is entitled to a (9-minute call to the Philippines fo about P09.10
pe minute. Afte dialin) the "@R access numbe indicated in the phone
cad, the "@R opeato e5uests the subscibe to )ive the P"N numbe
also indicated in the phone cad. 8nce the calleQs identit% 3as
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 33
puchase of the phone cad4 is confimed, the "@R opeato will then
povide a Philippine local line to the e5uestin) calle via the "P>.
Accodin) to P>&T, calls made thou)h the "P> neve pass the toll
cente of "I! opeatos in the Philippines. =sin) the local line, the
Ba%net cad use is able to place a call to an% point in the Philippines,
povided the local line is National &iect &ial 3N&&4 capable.
6
P>&T assets that Ba%net conducts its "@R activities b% utili-in) an "P>
to couse its incomin) intenational lon) distance calls fom ,apan. The
"P> is lin/ed to switchin) e5uipment, which is then connected to P>&T
telephone linesOnumbes and e5uipment, with Ba%net as subscibe.
Thou)h the use of the telephone lines and othe au+ilia% e5uipment,
Ba%net is able to connect an intenational lon) distance call fom
,apan to an% pat of the Philippines, and ma/e it appea as a call
oi)inatin) fom Meto Manila. Conse5uentl%, the opeato of an "@R is
able to evade pa%ment of access, temination o b%pass cha)es and
accountin) ates, as well as compliance with the e)ulato%
e5uiements of the NTC. Thus, the "@R opeato offes intenational
telecommunication sevices at a lowe ate, to the dama)e and
pe2udice of le)itimate opeatos li/e P>&T.
7
P>&T pointed out that Ba%net utili-ed the followin) e5uipment fo its
"@R activities: lines, cables, and antennas o e5uipment o device
capable of tansmittin) ai waves o fe5uenc%, such as an "P> and
telephone lines and e5uipment. computes o an% e5uipment o device
capable of acceptin) infomation appl%in) the pescibed pocess of
the infomation and suppl%in) the esult of this pocess. modems o
an% e5uipment o device that enables a data teminal e5uipment such
as computes to communicate with othe data teminal e5uipment via a
telephone line. multiple+es o an% e5uipment o device that enables
two o moe si)nals fom diffeent souces to pass thou)h a common
cable o tansmission line. switchin) e5uipment, o e5uipment o
device capable of connectin) telephone lines. and softwae, dis/ettes,
tapes o e5uipment o device used fo ecodin) and stoin)
infomation.
9
P>&T also discoveed that Ba%net subscibed to a total of #(0 P>&T
telephone linesOnumbes.
;
Based on the Taffic @tud% conducted on
the volume of calls passin) thou)h Ba%netQs "@R netwo/ which
b%pass the "I! toll cente, P>&T incued an estimated monthl% loss of
P#1,#;6,0(6.'7.
'
Recods at the @ecuities and E+chan)e
Commission 3@EC4 also evealed that Ba%net was not authoi-ed to
povide intenational o domestic lon) distance telephone sevice in the
count%. The followin) ae its offices: Ru2i <i2io/a, a ,apanese national
3chaiman of the boad of diectos4. Iina C. Mu/aida, a !ilipina 3boad
membe and pesident4. >uis Macos P. >auel, a !ilipino 3boad
membe and copoate seceta%4. Ric/% Chan Pe, a !ilipino 3boad
membe and teasue4. and Rasushi =eshima, also a ,apanese
national 3boad membe4.
=pon complaint of P>&T a)ainst Ba%net fo netwo/ faud, and on the
sten)th of two seach waants
#1
issued b% the RTC of Ma/ati, Banch
#$9, National Bueau of "nvesti)ation 3NB"4 a)ents seached its office
at the 9th !loo, @,I Buildin), Hala%aan Avenue, Ma/ati Cit% on
Novembe ;, #'''. Atsushi Matsuua, Nobu%oshi Mi%a/e, Edoud &.
>acson and Rolando ,. *ille)as wee aested b% NB" a)ents while in
the act of mannin) the opeations of Ba%net. @ei-ed in the pemises
duin) the seach wee numeous e5uipment and devices used in its
"@R activities, such as multiple+es, modems, compute monitos,
CP=s, antenna, assoted compute peipheal cods and
micopocessos, cablesOwies, assoted P>&T statement of accounts,
paabolic antennae and volta)e e)ulatos.
@tate Posecuto 8felia >. Calo conducted an in5uest investi)ation and
issued a Resolution
##
on ,anua% (;, (111, findin) pobable cause fo
theft unde Aticle 01; of the Revised Penal Code and Pesidential
&ecee No. $1#
#(
a)ainst the espondents theein, includin) >auel.
8n !ebua% ;, (111, @tate Posecuto Calo filed an "nfomation with
the RTC of Ma/ati Cit% cha)in) Matsuua, Mi%a/e, >acson and
*ille)as with theft unde Aticle 01; of the Revised Penal Code. Afte
conductin) the e5uisite pelimina% investi)ation, the @tate Posecuto
filed an Amended "nfomation impleadin) >auel 3a patne in the law
fim of "n)les, >auel, @alinas, and, until Novembe #', #''', a
membe of the boad of diectos and copoate seceta% of Ba%net4,
and the othe membes of the boad of diectos of said copoation,
namel%, Ru2i <i2io/a, Rasushi =eshima, Mu/aida, >acson and *ille)as,
as accused fo theft unde Aticle 01; of the Revised Penal Code. The
inculpato% potion of the Amended "nfomation eads:
8n o about @eptembe #1-#', #''', o pio theeto, in Ma/ati Cit%,
and within the 2uisdiction of this <onoable Cout, the accused,
conspiin) and confedeatin) to)ethe and all of them mutuall% helpin)
and aidin) one anothe, with intent to )ain and without the /nowled)e
and consent of the Philippine >on) &istance Telephone 3P>&T4, did
then and thee willfull%, unlawfull% and feloniousl% ta/e, steal and use
the intenational lon) distance calls belon)in) to P>&T b% conductin)
"ntenational @imple Resale 3"@R4, which is a method of outin) and
completin) intenational lon) distance calls usin) lines, cables,
antennae, andOo ai wave fe5uenc% which connect diectl% to the local
o domestic e+chan)e facilities of the count% whee the call is
destined, effectivel% stealin) this business fom P>&T while usin) its
facilities in the estimated amount of P(1,091,76#.'( to the dama)e
and pe2udice of P>&T, in the said amount.
C8NTRARR T8 >AG.
#0
Accused >auel filed a DMotion to Nuash 3with Motion to &efe
Aai)nment4D on the )ound that the factual alle)ations in the
Amended "nfomation do not constitute the felon% of theft unde Aticle
01; of the Revised Penal Code. <e aveed that the Revised Penal
Code, o an% othe special penal law fo that matte, does not pohibit
"@R opeations. <e claimed that telephone calls with the use of P>&T
telephone lines, whethe domestic o intenational, belon) to the
pesons ma/in) the call, not to P>&T. <e a)ued that the calle meel%
uses the facilities of P>&T, and what the latte owns ae the
telecommunication infastuctues o facilities thou)h which the call is
made. <e also asseted that P>&T is compensated fo the calleQs use
of its facilities b% wa% of ental. fo an out)oin) oveseas call, P>&T
cha)es the calle pe minute, based on the duation of the call. Thus,
no pesonal popet% was stolen fom P>&T. Accodin) to >auel, the
P(1,091,76#.'( stated in the "nfomation, if an%thin), epesents the
ental fo the use of P>&T facilities, and not the value of an%thin)
owned b% it. !inall%, he aveed that the alle)ations in the Amended
"nfomation ae alead% subsumed unde the "nfomation fo violation of
Pesidential &ecee 3P.&.4 No. $1# filed and pendin) in the
Metopolitan Tial Cout of Ma/ati Cit%, doc/eted as Ciminal Case No.
(97977.
The posecution, thou)h pivate complainant P>&T, opposed the
motion,
#$
contendin) that the movant unlawfull% too/ pesonal popet%
belon)in) to it, as follows: #4 intan)ible telephone sevices that ae
bein) offeed b% P>&T and othe telecommunication companies, i.e.,
the connection and inteconnection to thei telephone linesOfacilities. (4
the use of those facilities ove a peiod of time. and 04 the evenues
deived in connection with the endition of such sevices and the use of
such facilities.
#6
The posecution asseted that the use of P>&TQs intan)ible telephone
sevicesOfacilities allows electonic voice si)nals to pass thou)h the
same, and ultimatel% to the called pat%Qs numbe. "t aveed that such
seviceOfacilit% is a/in to electicit% which, althou)h an intan)ible
popet%, ma%, nevetheless, be appopiated and be the sub2ect of
theft. @uch sevice ove a peiod of time fo a consideation is the
business that P>&T povides to its customes, which enables the latte
to send vaious messa)es to installed ecipients. The sevice endeed
b% P>&T is a/in to mechandise which has specific value, and
theefoe, capable of appopiation b% anothe, as in this case, thou)h
the "@R opeations conducted b% the movant and his co-accused.
The posecution futhe alle)ed that Dintenational business calls and
evenues constitute pesonal popet% envisa)ed in Aticle 01; of the
Revised Penal Code.D Moeove, the intan)ible telephone
sevicesOfacilities belon) to P>&T and not to the movant and the othe
accused, because the% have no telephone sevices and facilities of
thei own dul% authoi-ed b% the NTC. thus, the ta/in) b% the movant
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 34
and his co-accused of P>&T sevices was with intent to )ain and
without the latteQs consent.
The posecution pointed out that the accused, as well as the movant,
wee paid in e+chan)e fo thei ille)al appopiation and use of P>&TQs
telephone sevices and facilities. on the othe hand, the accused did
not pa% a sin)le centavo fo thei ille)al "@R opeations. Thus, the acts
of the accused wee a/in to the use of a D2umpeD b% a consume to
deflect the cuent fom the house electic mete, theeb% enablin) one
to steal electicit%. The posecution emphasi-ed that its position is
fotified b% the Resolutions of the &epatment of ,ustice in P>&T v.
Tion)son, et al. 3".@. No. '9-1'(64 and in PA8CT!-P>&T v. Elton ,ohn
Tuason, et al. 3".@. No. (111-0914 which wee issued on Au)ust #$,
(111 findin) pobable cause fo theft a)ainst the espondents theein.
8n @eptembe #$, (11#, the RTC issued an 8de
#7
den%in) the
Motion to Nuash the Amended "nfomation. The cout declaed that,
althou)h thee is no law that e+pessl% pohibits the use of "@R, the
facts alle)ed in the Amended "nfomation Dwill show how the alle)ed
cime was committed b% conductin) "@R,D to the dama)e and pe2udice
of P>&T.
>auel filed a Motion fo Reconsideation
#9
of the 8de, alle)in) that
intenational lon) distance calls ae not pesonal popet%, and ae not
capable of appopiation. <e maintained that business o evenue is
not consideed pesonal popet%, and that the posecution failed to
adduce poof of its e+istence and the subse5uent loss of pesonal
popet% belon)in) to anothe. Citin) the ulin) of the Cout in =nited
@tates v. &e Iu-man,
#;
>auel aveed that the case is not one with
telephone calls which oi)inate with a paticula calle and teminates
with the called pat%. <e insisted that telephone calls ae consideed
pivile)ed communications unde the Constitution and cannot be
consideed as Dthe popet% of P>&T.D <e futhe a)ued that thee is
no /inship between telephone calls and electicit% o )as, as the latte
ae foms of ene)% which ae )eneated and consumable, and ma% be
consideed as pesonal popet% because of such chaacteistic. 8n
the othe hand, the movant a)ued, the telephone business is not a
fom of ene)% but is an activit%.
"n its 8de
#'
dated &ecembe ##, (11#, the RTC denied the movantQs
Motion fo Reconsideation. This time, it uled that what was stolen
fom P>&T was its DbusinessD because, as alle)ed in the Amended
"nfomation, the intenational lon) distance calls made thou)h the
facilities of P>&T fomed pat of its business. The RTC noted that the
movant was cha)ed with stealin) the business of P>&T. To suppot its
ulin), it cited @tochec/e v. Ramie-,
(1
whee the Cout uled that
inteest in business is pesonal popet% capable of appopiation. "t
futhe declaed that, thou)h thei "@R opeations, the movant and his
co-accused depived P>&T of fees fo intenational lon) distance calls,
and that the "@R used b% the movant and his co-accused was no
diffeent fom the D2umpeD used fo stealin) electicit%.
>auel then filed a Petition fo Cetioai with the CA, assailin) the
8de of the RTC. <e alle)ed that the espondent 2ud)e )avel%
abused his discetion in den%in) his Motion to Nuash the Amended
"nfomation.
(#
As )leaned fom the mateial avements of the amended
infomation, he was cha)ed with stealin) the intenational lon)
distance calls belon)in) to P>&T, not its business. Moeove, the RTC
failed to distin)uish between the business of P>&T 3povidin) sevices
fo intenational lon) distance calls4 and the evenues deived
theefom. <e opined that a DbusinessD o its evenues cannot be
consideed as pesonal popet% unde Aticle 01; of the Revised
Penal Code, since a DbusinessD is D3#4 a commecial o mecantile
activit% customail% en)a)ed in as a means of livelihood and t%picall%
involvin) some independence of 2ud)ment and powe of decision. 3(4 a
commecial o industial entepise. and 304 efes to tansactions,
dealin)s o intecouse of an% natue.D 8n the othe hand, the tem
DevenueD is defined as Dthe income that comes bac/ fom an
investment 3as in eal o pesonal popet%4. the annual o peiodical
ents, pofits, inteests, o issues of an% species of eal o pesonal
popet%.D
((
>auel futhe posited that an electic compan%Qs business is the
poduction and distibution of electicit%. a )as compan%Qs business is
the poduction andOo distibution of )as 3as fuel4. while a wate
compan%Qs business is the poduction and distibution of potable wate.
<e a)ued that the DbusinessD in all these cases is the commecial
activit%, while the )oods and mechandise ae the poducts of such
activit%. Thus, in posecutions fo theft of cetain foms of ene)%, it is
the electicit% o )as which is alle)ed to be stolen and not the
DbusinessD of povidin) electicit% o )as. <oweve, since a telephone
compan% does not poduce an% ene)%, )oods o mechandise and
meel% endes a sevice o, in the wods of P>&T, Dthe connection and
inteconnection to thei telephone linesOfacilities,D such sevice cannot
be the sub2ect of theft as defined in Aticle 01; of the Revised Penal
Code.
(0
<e futhe declaed that to cate)oi-e DbusinessD as pesonal popet%
unde Aticle 01; of the Revised Penal Code would lead to absud
conse5uences. in posecutions fo theft of )as, electicit% o wate, it
would then be pemissible to alle)e in the "nfomation that it is the )as
business, the electic business o the wate business which has been
stolen, and no lon)e the mechandise poduced b% such entepise.
($
>auel futhe cited the Resolution of the @eceta% of ,ustice in Piltel v.
Mendo-a,
(6
whee it was uled that the Revised Penal Code, le)islated
as it was befoe pesent technolo)ical advances wee even conceived,
is not ade5uate to addess the novel means of Dstealin)D aiwaves o
aitime. "n said esolution, it was noted that the inade5uac% pompted
the filin) of @enate Bill (09' 3sic4 entitled DThe Anti-
Telecommunications !aud of #''9D to dete clonin) of cellula phones
and othe foms of communications faud. The said bill Daims to potect
in numbe 3E@N4 3sic4 o Capcode, mobile identification numbe 3M"N4,
electonic-intenational mobile e5uipment identit% 3EME"O"ME"4, o
subscibe identit% moduleD and Dan% attempt to duplicate the data on
anothe cellula phone without the consent of a public
telecommunications entit% would be punishable b% law.D
(7
Thus, >auel
concluded, Dthee is no cime if thee is no law punishin) the cime.D
8n Au)ust 01, (11(, the CA endeed 2ud)ment dismissin) the
petition.
(9
The appellate cout uled that a petition fo cetioai unde
Rule 76 of the Rules of Cout was not the pope emed% of the
petitione. 8n the meits of the petition, it held that while business is
)eneall% an activit%
which is abstact and intan)ible in fom, it is nevetheless consideed
Dpopet%D unde Aticle 01; of the Revised Penal Code. The CA
opined that P>&TQs business of povidin) intenational calls is pesonal
popet% which ma% be the ob2ect of theft, and cited =nited @tates v.
Calos
(;
to suppot such conclusion. The tibunal also cited
@tochec/e v. Ramie-,
('
whee this Cout uled that one-half inteest
in a da%Qs business is pesonal popet% unde @ection ( of Act No.
0'6(, othewise /nown as the Bul/ @ales >aw. The appellate cout
held that the opeations of the "@R ae not subsumed in the cha)e fo
violation of P.&. No. $1#.
>auel, now the petitione, assails the decision of the CA, contendin)
that -
T<E C8=RT 8! APPEA>@ ERRE& "N R=>"NI T<AT T<E
PER@8NA> PR8PERTR A>>EIE&>R @T8>EN PER T<E
"N!8RMAT"8N "@ N8T T<E D"NTERNAT"8NA> >8NI
&"@TANCE CA>>@D B=T T<E DB=@"NE@@ 8! P>&T.D
T<E C8=RT 8! APPEA>@ ERRE& "N R=>"NI T<AT T<E
TERM DB=@"NE@@D "@ PER@8NA> PR8PERTR G"T<"N
T<E MEAN"NI 8! ART. 01; 8! T<E RE*"@E& PENA>
C8&E.
01
Petitione aves that the petition fo a wit of cetioai ma% be filed to
nullif% an intelocuto% ode of the tial cout which was issued with
)ave abuse of discetion amountin) to e+cess o lac/ of 2uisdiction. "n
suppot of his petition befoe the Cout, he eiteates the a)uments in
his pleadin)s filed befoe the CA. <e futhe claims that while the i)ht
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 35
to ca% on a business o an inteest o paticipation in business is
consideed popet% unde the New Civil Code, the tem Dbusiness,D
howeve, is not. <e assets that the Philippine >e)islatue, which
appoved the Revised Penal Code wa% bac/ in ,anua% #, #'0(, could
not have contemplated to include intenational lon) distance calls and
DbusinessD as pesonal popet% unde Aticle 01; theeof.
"n its comment on the petition, the 8ffice of the @olicito Ieneal
38@I4 maintains that the amended infomation cleal% states all the
essential elements of the cime of theft. PetitioneQs intepetation as to
whethe an Dintenational lon) distance callD is pesonal popet% unde
the law is inconse5uential, as a eadin) of the amended infomation
eadil% eveals that specific acts and cicumstances wee alle)ed
cha)in) Ba%net, thou)h its offices, includin) petitione, of feloniousl%
ta/in), stealin) and ille)all% usin) intenational lon) distance calls
belon)in) to espondent P>&T b% conductin) "@R opeations, thus,
Doutin) and completin) intenational lon) distance calls usin) lines,
cables, antenna andOo aiwave fe5uenc% which connect diectl% to the
local o domestic e+chan)e facilities of the count% whee the call is
destined.D The 8@I maintains that the intenational lon) distance calls
alle)ed in the amended infomation should be constued to mean
DbusinessD of P>&T, which, while abstact and intan)ible in fom, is
pesonal popet% susceptible of appopiation.
0#
The 8@I aves that
what was stolen b% petitione and his co-accused is the business of
P>&T povidin) intenational lon) distance calls which, thou)h
intan)ible, is pesonal popet% of the P>&T.
0(
!o its pat, espondent P>&T assets that pesonal popet% unde
Aticle 01; of the Revised Penal Code compehends intan)ible
popet% such as electicit% and )as which ae valuable aticles fo
mechandise, bou)ht and sold li/e othe pesonal popet%, and ae
capable of appopiation. "t insists that the business of intenational
calls and evenues constitute pesonal popet% because the same ae
valuable aticles of mechandise. The espondent eiteates that
intenational calls involve 3a4 the intan)ible telephone sevices that ae
bein) offeed b% it, that is, the connection and inteconnection to the
telephone netwo/, lines o facilities. 3b4 the use of its telephone
netwo/, lines o facilities ove a peiod of time. and 3c4 the income
deived in connection theewith.
00
P>&T futhe posits that business evenues o the income deived in
connection with the endition of such sevices and the use of its
telephone netwo/, lines o facilities ae pesonal popeties unde
Aticle 01; of the Revised Penal Code. so is the use of said telephone
sevicesOtelephone netwo/, lines o facilities which allow electonic
voice si)nals to pass thou)h the same and ultimatel% to the called
pat%Qs numbe. "t is a/in to electicit% which, thou)h intan)ible
popet%, ma% nevetheless be appopiated and can be the ob2ect of
theft. The use of espondent P>&TQs telephone netwo/, lines, o
facilities ove a peiod of time fo consideation is the business that it
povides to its customes, which enables the latte to send vaious
messa)es to intended ecipients. @uch use ove a peiod of time is
a/in to mechandise which has value and, theefoe, can be
appopiated b% anothe. Accodin) to espondent P>&T, this is what
actuall% happened when petitione >auel and the othe accused below
conducted ille)al "@R opeations.
0$
The petition is meitoious.
The issues fo esolution ae as follows: 3a4 whethe o not the petition
fo cetioai is the pope emed% of the petitione in the Cout of
Appeals. 3b4 whethe o not intenational telephone calls usin) Ba%
@upe 8ient Cads thou)h the telecommunication sevices povided
b% P>&T fo such calls, o, in shot, P>&TQs business of povidin) said
telecommunication sevices, ae pope sub2ects of theft unde Aticle
01; of the Revised Penal Code. and 3c4 whethe o not the tial cout
committed )ave abuse of discetion amountin) to e+cess o lac/ of
2uisdiction in den%in) the motion of the petitione to 5uash the
amended infomation.
8n the issue of whethe o not the petition fo cetioai instituted b% the
petitione in the CA is pope, the )eneal ule is that a petition fo
cetioai unde Rule 76 of the Rules of Cout, as amended, to nullif%
an ode den%in) a motion to 5uash the "nfomation is inappopiate
because the a))ieved pat% has a emed% of appeal in the odina%
couse of law. Appeal and cetioai ae mutuall% e+clusive of each
othe. The emed% of the a))ieved pat% is to continue with the case in
due couse and, when an unfavoable 2ud)ment is endeed, assail the
ode and the decision on appeal. <oweve, if the tial cout issues the
ode den%in) the motion to 5uash the Amended "nfomation with
)ave abuse of discetion amountin) to e+cess o lac/ of 2uisdiction, o
if such ode is patentl% eoneous, o null and void fo bein) conta%
to the Constitution, and the emed% of appeal would not affod
ade5uate and e+peditious elief, the accused ma% esot to the
e+taodina% emed% of cetioai.
06
A special civil action fo cetioai is
also available whee thee ae special cicumstances cleal%
demonstatin) the inade5uac% of an appeal. As this Cout held in
Bistol M%es @5uibb 3Phils.4, "nc. v. *iloia:
07
Nonetheless, the settled ule is that a wit of cetioai ma% be )anted
in cases whee, despite availabilit% of appeal afte tial, thee is at least
a pima facie showin) on the face of the petition and its anne+es that:
3a4 the tial cout issued the ode with )ave abuse of discetion
amountin) to lac/ of o in e+cess of 2uisdiction. 3b4 appeal would not
pove to be a speed% and ade5uate emed%. 3c4 whee the ode is a
patent nullit%. 3d4 the decision in the pesent case will aest futue
liti)ations. and 3e4 fo cetain consideations such as public welfae and
public polic%.
09
"n his petition fo cetioai in the CA, petitione aveed that the tial
cout committed )ave abuse of its discetion amountin) to e+cess o
lac/ of 2uisdiction when it denied his motion to 5uash the Amended
"nfomation despite his claim that the mateial alle)ations in the
Amended "nfomation do not cha)e theft unde Aticle 01; of the
Revised Penal Code, o an% offense fo that matte. B% so doin), the
tial cout depived him of his constitutional i)ht to be infomed of the
natue of the cha)e a)ainst him. <e futhe aveed that the ode of
the tial cout is conta% to the constitution and is, thus, null and void.
<e insists that he should not be compelled to unde)o the i)os and
tibulations of a potacted tial and incu e+penses to defend himself
a)ainst a non-e+istent cha)e.
Petitione is coect.
An infomation o complaint must state e+plicitl% and diectl% eve% act
o omission constitutin) an offense
0;
and must alle)e facts establishin)
conduct that a penal statute ma/es ciminal.
0'
and descibes the
popet% which is the sub2ect of theft to advise the accused with
easonable cetaint% of the accusation he is called upon to meet at the
tial and to enable him to el% on the 2ud)ment theeunde of a
subse5uent posecution fo the same offense.
$1
"t must show, on its
face, that if the alle)ed facts ae tue, an offense has been committed.
The ule is ooted on the constitutional i)ht of the accused to be
infomed of the natue of the cime o cause of the accusation a)ainst
him. <e cannot be convicted of an offense even if poven unless it is
alle)ed o necessail% included in the "nfomation filed a)ainst him.
As a )eneal pee5uisite, a motion to 5uash on the )ound that the
"nfomation does not constitute the offense cha)ed, o an% offense fo
that matte, should be esolved on the basis of said alle)ations whose
tuth and veacit% ae h%potheticall% committed.
$#
and on additional
facts admitted o not denied b% the posecution.
$(
"f the facts alle)ed in
the "nfomation do not constitute an offense, the complaint o
infomation should be 5uashed b% the cout.
$0
Ge have eviewed the Amended "nfomation and find that, as
mentioned b% the petitione, it does not contain mateial alle)ations
cha)in) the petitione of theft of pesonal popet% unde Aticle 01; of
the Revised Penal Code. "t, thus, behooved the tial cout to 5uash the
Amended "nfomation. The 8de of the tial cout den%in) the motion
of the petitione to 5uash the Amended "nfomation is a patent nullit%.
8n the second issue, we find and so hold that the intenational
telephone calls placed b% Ba% @upe 8ient Cad holdes, the
telecommunication sevices povided b% P>&T and its business of
povidin) said sevices ae not pesonal popeties unde Aticle 01; of
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 36
the Revised Penal Code. The constuction b% the espondents of
Aticle 01; of the said Code to include, within its covea)e, the
afoesaid intenational telephone calls, telecommunication sevices
and business is conta% to the lette and intent of the law.
The ule is that, penal laws ae to be constued stictl%. @uch ule is
founded on the tendeness of the law fo the i)hts of individuals and
on the plain pinciple that the powe of punishment is vested in
Con)ess, not in the 2udicial depatment. "t is Con)ess, not the Cout,
which is to define a cime, and odain its punishment.
$$
&ue espect fo
the peo)ative of Con)ess in definin) cimesOfelonies constains the
Cout to efain fom a boad intepetation of penal laws whee a
Dnaow intepetationD is appopiate. The Cout must ta/e heed to
lan)ua)e, le)islative histo% and pupose, in ode to stictl% detemine
the wath and beath of the conduct the law fobids.
$6
<oweve, when
the con)essional pupose is unclea, the cout must appl% the ule of
lenit%, that is, ambi)uit% concenin) the ambit of ciminal statutes
should be esolved in favo of lenit%.
$7
Penal statutes ma% not be enla)ed b% implication o intent be%ond the
fai meanin) of the lan)ua)e used. and ma% not be held to include
offenses othe than those which ae cleal% descibed, notwithstandin)
that the Cout ma% thin/ that Con)ess should have made them moe
compehensive.
$9
Gods and phases in a statute ae to be constued
accodin) to thei common meanin) and accepted usa)e.
As Chief ,ustice ,ohn Mashall declaed, Dit would be dan)eous,
indeed, to ca% the pinciple that a case which is within the eason o
mischief of a statute is within its povision, so fa as to punish a cime
not enumeated in the statute because it is of e5ual atocit%, o of
/inded chaacte with those which ae enumeated.
$;
Ghen
intepetin) a ciminal statute that does not e+plicitl% each the conduct
in 5uestion, the Cout should not base an e+pansive eadin) on
infeences fom sub2ective and vaiable undestandin).
$'
Aticle 01; of the Revised Penal Code defines theft as follows:
At. 01;. Gho ae liable fo theft.S Theft is committed b% an% peson
who, with intent to )ain but without violence, a)ainst o intimidation of
pesons no foce upon thin)s, shall ta/e pesonal popet% of anothe
without the latteQs consent.
The povision was ta/en fom Aticle 601 of the @panish Penal Code
which eads:
#. >os 5ue con Tnimo de lucase, % sin violencia o intimidaciUn en las
pesonas ni fue-a en las cosas, toman las cosas muebles a2enas sin
la voluntad de su dueEo.
61
!o one to be )uilt% of theft, the accused must have an intent to steal
3animus fuandi4 pesonal popet%, meanin) the intent to depive
anothe of his owneshipOlawful possession of pesonal popet% which
intent is apat fom and concuentl% with the )eneal ciminal intent
which is an essential element of a felon% of dolo 3dolus malus4.
An infomation o complaint fo simple theft must alle)e the followin)
elements: 3a4 the ta/in) of pesonal popet%. 3b4 the said popet%
belon)s to anothe. 3c4 the ta/in) be done with intent to )ain. and 3d4
the ta/in) be accomplished without the use of violence o intimidation
of pesonOs o foce upon thin)s.
6#
8ne is apt to conclude that Dpesonal popet%D standin) alone, coves
both tan)ible and intan)ible popeties and ae sub2ect of theft unde
the Revised Penal Code. But the wods DPesonal popet%D unde the
Revised Penal Code must be consideed in tandem with the wod
Dta/eD in the law. The statuto% definition of Dta/in)D and movable
popet% indicates that, cleal%, not all pesonal popeties ma% be the
pope sub2ects of theft. The )eneal ule is that, onl% movable
popeties which have ph%sical o mateial e+istence and susceptible of
occupation b% anothe ae pope ob2ects of theft.
6(
As e+plained b%
Cuelo Callon: DCosa 2uidicamente es toda sustancia copoal,
mateial, susceptible de se apehendida 5ue ten)a un valo
cual5uiea.D
60
Accodin) to Cuello Callon, in the conte+t of the Penal Code, onl%
those movable popeties which can be ta/en and caied fom the
place the% ae found ae pope sub2ects of theft. "ntan)ible popeties
such as i)hts and ideas ae not sub2ect of theft because the same
cannot be Dta/enD fom the place it is found and is occupied o
appopiated.
@olamente las cosas muebles % copoales pueden se ob2eto de
huto. >a sustacciUn de cosas inmuebles % la cosas incopoales 3v.
)., los deechos, las ideas4 no puede inte)a este delito, pues no es
posible asilas, tomalas, paa conse)ui su apopiaciUn. El Codi)o
emplea la e+pesiUn Dcosas muebleD en el sentido de cosa 5ue es
susceptible de se llevada del lu)a donde se encuenta, como dineo,
2o%as, opas, etcVtea, asi 5ue su concepto no coincide po completo
con el fomulado po el Codi)o civil 3ats. 006 % 0074.
6$
Thus, movable popeties unde Aticle 01; of the Revised Penal Code
should be distin)uished fom the i)hts o inteests to which the%
elate. A na/ed i)ht e+istin) meel% in contemplation of law, althou)h
it ma% be ve% valuable to the peson who is entitled to e+ecise it, is
not the sub2ect of theft o lacen%.
66
@uch i)hts o inteests ae
intan)ible and cannot be Dta/enD b% anothe. Thus, i)ht to poduce oil,
)ood will o an inteest in business, o the i)ht to en)a)e in business,
cedit o fanchise ae popeties. @o is the cedit line epesented b% a
cedit cad. <oweve, the% ae not pope sub2ects of theft o lacen%
because the% ae without fom o substance, the mee DbeathD of the
Con)ess. 8n the othe hand, )oods, waes and mechandise of
businessmen and cedit cads issued to them ae movable popeties
with ph%sical and mateial e+istence and ma% be ta/en b% anothe.
hence, pope sub2ects of theft.
Thee is Dta/in)D of pesonal popet%, and theft is consummated when
the offende unlawfull% ac5uies possession of pesonal popet% even
if fo a shot time. o if such popet% is unde the dominion and contol
of the thief. The ta/e, at some paticula amount, must have obtained
complete and absolute possession and contol of the popet% advese
to the i)hts of the owne o the lawful possesso theeof.
67
"t is not
necessa% that the popet% be actuall% caied awa% out of the ph%sical
possession of the lawful possesso o that he should have made his
escape with it.
69
Neithe aspotation no actual manual possession of
popet% is e5uied. Constuctive possession of the thief of the
popet% is enou)h.
6;
The essence of the element is the ta/in) of a thin) out of the
possession of the owne without his pivit% and consent and without
animus evetendi.
6'
Ta/in) ma% be b% the offendeQs own hands, b% his use of innocent
pesons without an% felonious intent, as well as an% mechanical
device, such as an access device o cad, o an% a)enc%, animate o
inanimate, with intent to )ain. "ntent to )ain includes the unlawful
ta/in) of pesonal popet% fo the pupose of deivin) utilit%,
satisfaction, en2o%ment and pleasue.
71
Ge a)ee with the contention of the espondents that intan)ible
popeties such as electical ene)% and )as ae pope sub2ects of
theft. The eason fo this is that, as e+plained b% this Cout in =nited
@tates v. Calos
7#
and =nited @tates v. Tambuntin),
7(
based on
decisions of the @upeme Cout of @pain and of the couts in En)land
and the =nited @tates of Ameica, )as o electicit% ae capable of
appopiation b% anothe othe than the owne. Ias and electical
ene)% ma% be ta/en, caied awa% and appopiated. "n People v.
Mena)as,
70
the "llinois @tate @upeme Cout declaed that electicit%,
li/e )as, ma% be seen and felt. Electicit%, the same as )as, is a
valuable aticle of mechandise, bou)ht and sold li/e othe pesonal
popet% and is capable of appopiation b% anothe. "t is a valuable
aticle of mechandise, bou)ht and sold li/e othe pesonal popet%,
susceptible of bein) seveed fom a mass o la)e 5uantit% and of
bein) tanspoted fom place to place. Electical ene)% ma%, li/ewise,
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 37
be ta/en and caied awa%. "t is a valuable commodit%, bou)ht and sold
li/e othe pesonal popet%. "t ma% be tanspoted fom place to place.
Thee is nothin) in the natue of )as used fo illuminatin) puposes
which endes it incapable of bein) feloniousl% ta/en and caied awa%.
"n People e+ el Bush Electic "lluminatin) Co. v. Gemple,
7$
the Cout
of Appeals of New Ro/ held that electic ene)% is manufactued and
sold in deteminate 5uantities at a fi+ed pice, pecisel% as ae coal,
/eosene oil, and )as. "t ma% be conve%ed to the pemises of the
consume, stoed in cells of diffeent capacit% /nown as an
accumulato. o it ma% be sent thou)h a wie, 2ust as )as o oil ma% be
tanspoted eithe in a close tan/ o foced thou)h a pipe. <avin)
eached the pemises of the consume, it ma% be used in an% wa% he
ma% desie, bein), li/e illuminatin) )as, capable of bein) tansfomed
eithe into heat, li)ht, o powe, at the option of the puchase. "n
Goods v. People,
76
the @upeme Cout of "llinois declaed that thee is
nothin) in the natue of )as used fo illuminatin) puposes which
endes it incapable of bein) feloniousl% ta/en and caied awa%. "t is a
valuable aticle of mechandise, bou)ht and sold li/e othe pesonal
popet%, susceptible of bein) seveed fom a mass o la)e 5uantit%
and of bein) tanspoted fom place to place.
Ias and electical ene)% should not be e5uated with business o
sevices povided b% business entepeneus to the public. Business
does not have an e+act definition. Business is efeed as that which
occupies the time, attention and labo of men fo the pupose of
livelihood o pofit. "t embaces eve%thin) that which a peson can be
emplo%ed.
77
Business ma% also mean emplo%ment, occupation o
pofession. Business is also defined as a commecial activit% fo )ain
benefit o advanta)e.
79
Business, li/e sevices in business, althou)h
ae popeties, ae not pope sub2ects of theft unde the Revised
Penal Code because the same cannot be Dta/enD o Doccupied.D "f it
wee othewise, as claimed b% the espondents, thee would be no
2uidical diffeence between the ta/in) of the business of a peson o
the sevices povided b% him fo )ain, vis-W-vis, the ta/in) of )oods,
waes o mechandise, o e5uipment compisin) his business.
7;
"f it
was its intention to include DbusinessD as pesonal popet% unde
Aticle 01; of the Revised Penal Code, the Philippine >e)islatue
should have spo/en in lan)ua)e that is clea and definite: that
business is pesonal popet% unde Aticle 01; of the Revised Penal
Code.
7'
Ge a)ee with the contention of the petitione that, as )leaned fom the
mateial avements of the Amended "nfomation, he is cha)ed of
Dstealin) the intenational lon) distance calls belon)in) to P>&TD and
the use theeof, thou)h the "@R. Conta% to the claims of the 8@I
and espondent P>&T, the petitione is not cha)ed of stealin)
P(1,091,76#.'6 fom said espondent. @aid amount of P(1,091,76#.'6
alle)ed in the Amended "nfomation is the a))e)ate amount of
access, tansmission o temination cha)es which the P>&T e+pected
fom the intenational lon) distance calls of the calles with the use of
Ba%net @upe 8ient Cads sold b% Ba%net Co. >td.
"n definin) theft, unde Aticle 01; of the Revised Penal Code, as the
ta/in) of pesonal popet% without the consent of the owne theeof,
the Philippine le)islatue could not have contemplated the human
voice which is conveted into electonic impulses o electical cuent
which ae tansmitted to the pat% called thou)h the P@TN of
espondent P>&T and the "@R of Ba%net Cad >td. within its covea)e.
Ghen the Revised Penal Code was appoved, on &ecembe ;, #'01,
intenational telephone calls and the tansmission and outin) of
electonic voice si)nals o impulses emanatin) fom said calls, thou)h
the P@TN, "P> and "@R, wee still non-e+istent. Case law is that, whee
a le)islative histo% fails to evidence con)essional awaeness of the
scope of the statute claimed b% the espondents, a naow
intepetation of the law is moe consistent with the usual appoach to
the constuction of the statute. Penal esponsibilit% cannot be e+tended
be%ond the fai scope of the statuto% mandate.
91
Respondent P>&T does not ac5uie possession, much less, owneship
of the voices of the telephone calles o of the electonic voice si)nals
o cuent emanatin) fom said calls. The human voice and the
electonic voice si)nals o cuent caused theeb% ae intan)ible and
not susceptible of possession, occupation o appopiation b% the
espondent P>&T o even the petitione, fo that matte. P>&T meel%
tansmits the electonic voice si)nals thou)h its facilities and
e5uipment. Ba%net Cad >td., thou)h its opeato, meel% intecepts,
eoutes the calls and passes them to its toll cente. "ndeed, the paties
called eceive the telephone calls fom ,apan.
"n this moden a)e of technolo)%, telecommunications s%stems have
become so ti)htl% me)ed with compute s%stems that it is difficult to
/now whee one stats and the othe finishes. The telephone set is
hi)hl% computei-ed and allows computes to communicate acoss
lon) distances.
9#
The instumentalit% at issue in this case is not meel%
a telephone but a telephone ine+plicabl% lin/ed to a computei-ed
communications s%stem with the use of Ba%net Cads sold b% the
Ba%net Cad >td. The copoation uses computes, modems and
softwae, amon) othes, fo its "@R.
9(
The conduct complained of b% espondent P>&T is eminiscent of
Dphea/in)D 3a slan) tem fo the action of ma/in) a telephone s%stem
to do somethin) that it nomall% should not allow b% Dma/in) the phone
compan% bend ove and )ab its an/lesD4. A Dphea/eD is one who
en)a)es in the act of manipulatin) phones and ille)all% ma/ets
telephone sevices.
90
=nless the phone compan% eplaces all its
hadwae, phea/in) would be impossible to stop. The phone
companies in Noth Ameica wee impelled to eplace all thei
hadwae and adopted full di)ital switchin) s%stem /nown as the
Common Channel "nte 8ffice @i)nalin). Phea/in) occued onl%
duin) the #'71Qs and #'91Qs, decades afte the Revised Penal Code
too/ effect.
The petitione is not cha)ed, unde the Amended "nfomation, fo theft
of telecommunication o telephone sevices offeed b% P>&T. Even if
he is, the tem Dpesonal popet%D unde Aticle 01; of the Revised
Penal Code cannot be intepeted be%ond its seams so as to include
Dtelecommunication o telephone sevicesD o compute sevices fo
that matte. The wod DseviceD has a vaiet% of meanin)s dependent
upon the conte+t, o the sense in which it is used. and, in some
instances, it ma% include a sale. !o instance, the sale of food b%
estauants is usuall% efeed to as Dsevice,D althou)h an actual sale
is involved.
9$
"t ma% also mean the dut% o labo to be endeed b% one
peson to anothe. pefomance of labo fo the benefit of anothe.
96
"n
the case of P>&T, it is to ende local and intenational
telecommunications sevices and such othe sevices as authoi-ed b%
the CPCA issued b% the NTC. Even at common law, neithe time no
sevices ma% be ta/en and occupied o appopiated.
97
A sevice is
)eneall% not consideed popet% and a theft of sevice would not,
theefoe, constitute theft since thee can be no caption o
aspotation.
99
Neithe is the unauthoi-ed use of the e5uipment and
facilities of P>&T b% the petitione theft unde the afoe5uoted
povision of the Revised Penal Code.
9;
"f it was the intent of the Philippine >e)islatue, in #'01, to include
sevices to be the sub2ect of theft, it should have incopoated the
same in Aticle 01; of the Revised Penal Code. The >e)islatue did
not. "n fact, the Revised Penal Code does not even contain a definition
of sevices.
"f ta/in) of telecommunication sevices o the business of a peson, is
to be poscibed, it must be b% special statute
9'
o an amendment of
the Revised Penal Code. @eveal states in the =nited @tates, such as
New Ro/, New ,ese%, Califonia and *i)inia, eali-ed that thei
ciminal statutes did not contain an% povisions penali-in) the theft of
sevices and passed laws definin) and penali-in) theft of telephone
and compute sevices. The Penns%lvania Ciminal @tatute now
penali-es theft of sevices, thus:
3a4 Ac5uisition of sevices. --
3#4 A peson is )uilt% of theft if he intentionall% obtains sevices fo
himself o fo anothe which he /nows ae available onl% fo
compensation, b% deception o theat, b% altein) o tampein) with the
public utilit% mete o measuin) device b% which such sevices ae
deliveed o b% causin) o pemittin) such altein) o tampein), b%
ma/in) o maintainin) an% unauthoi-ed connection, whethe
P R O P E R T Y A r t i c l e 4 1 6 P a g e | 38
ph%sicall%, electicall% o inductivel%, to a distibution o tansmission
line, b% attachin) o maintainin) the attachment of an% unauthoi-ed
device to an% cable, wie o othe component of an electic, telephone
o cable television s%stem o to a television eceivin) set connected to
a cable television s%stem, b% ma/in) o maintainin) an% unauthoi-ed
modification o alteation to an% device installed b% a cable television
s%stem, o b% false to/en o othe tic/ o atifice to avoid pa%ment fo
the sevice.
"n the @tate of "llinois in the =nited @tates of Ameica, theft of labo o
sevices o use of popet% is penali-ed:
3a4 A peson commits theft when he obtains the tempoa% use of
popet%, labo o sevices of anothe which ae available onl% fo hie,
b% means of theat o deception o /nowin) that such use is without
the consent of the peson povidin) the popet%, labo o sevices.
"n #';1, the daftes of the Model Penal Code in the =nited @tates of
Ameica aived at the conclusion that labo and sevices, includin)
pofessional sevices, have not been included within the taditional
scope of the tem Dpopet%D in odina% theft statutes. <ence, the%
decided to incopoate in the Code @ection ((0.9, which defines and
penali-es theft of sevices, thus:
3#4 A peson is )uilt% of theft if he puposel% obtains sevices which he
/nows ae available onl% fo compensation, b% deception o theat, o
b% false to/en o othe means to avoid pa%ment fo the sevice.
D@evicesD include labo, pofessional sevice, tanspotation,
telephone o othe public sevice, accommodation in hotels,
estauants o elsewhee, admission to e+hibitions, use of vehicles o
othe movable popet%. Ghee compensation fo sevice is odinail%
paid immediatel% upon the endein) of such sevice, as in the case of
hotels and estauants, efusal to pa% o abscondin) without pa%ment
o offe to pa% )ives ise to a pesumption that the sevice was
obtained b% deception as to intention to pa%. 3(4 A peson commits
theft if, havin) contol ove the disposition of sevices of othes, to
which he is not entitled, he /nowin)l% divets such sevices to his own
benefit o to the benefit of anothe not entitled theeto.
"nteestin)l%, afte the @tate @upeme Cout of *i)inia pomul)ated its
decision in >und v. Commonwealth,
;1
declain) that neithe time no
sevices ma% be ta/en and caied awa% and ae not pope sub2ects of
lacen%, the Ieneal Assembl% of *i)inia enacted Code No. #;-(-';
which eads:
Compute time o sevices o data pocessin) sevices o infomation
o data stoed in connection theewith is heeb% defined to be popet%
which ma% be the sub2ect of lacen% unde X X #;.(-'6 o #;.(-'7, o
embe--lement unde X #;.(-###, o false petenses unde X #;.(-#9;.
"n the @tate of Alabama, @ection #0A-;-#13a43#4 of the Penal Code of
Alabama of #'96 penali-es theft of sevices:
DA peson commits the cime of theft of sevices if: 3a4 <e intentionall%
obtains sevices /nown b% him to be available onl% fo compensation
b% deception, theat, false to/en o othe means to avoid pa%ment fo
the sevices YD
"n the Philippines, Con)ess has not amended the Revised Penal
Code to include theft of sevices o theft of business as felonies.
"nstead, it appoved a law, Republic Act No. ;$;$, othewise /nown as
the Access &evices Re)ulation Act of #'';, on !ebua% ##, #'';.
=nde the law, an access device means an% cad, plate, code, account
numbe, electonic seial numbe, pesonal identification numbe and
othe telecommunication sevices, e5uipment o instumentalities-
identifie o othe means of account access that can be used to obtain
mone%, )oods, sevices o an% othe thin) of value o to initiate a
tansfe of funds othe than a tansfe oi)inated solel% b% pape
instument. Amon) the pohibited acts enumeated in @ection ' of the
law ae the acts of obtainin) mone% o an%thin) of value thou)h the
use of an access device, with intent to defaud o intent to )ain and
fleein) theeafte. and of effectin) tansactions with one o moe
access devices issued to anothe peson o pesons to eceive
pa%ment o an% othe thin) of value. =nde @ection ## of the law,
conspiac% to commit access devices faud is a cime. <oweve, the
petitione is not cha)ed of violation of R.A. ;$;$.
@i)nificantl%, a posecution unde the law shall be without pe2udice to
an% liabilit% fo violation of an% povisions of the Revised Penal Code
inclusive of theft unde Rule 01; of the Revised Penal Code and estafa
unde Aticle 0#6 of the Revised Penal Code. Thus, if an individual
steals a cedit cad and uses the same to obtain sevices, he is liable
of the followin): theft of the cedit cad unde Aticle 01; of the Revised
Penal Code. violation of Republic Act No. ;$;$. and estafa unde
Aticle 0#63(43a4 of the Revised Penal Code with the sevice povide
as the pivate complainant. The petitione is not cha)ed of estafa
befoe the RTC in the Amended "nfomation.
@ection 00 of Republic Act No. ;9'(, Electonic Commece Act of
(111 povides:
@ec. 00. Penalties.? The followin) Acts shall be penali-ed b% fine
andOo impisonment, as follows:
a4 <ac/in) o cac/in) which efes to unauthoi-ed access into o
intefeence in a compute s%stemOseve o infomation and
communication s%stem. o an% access in ode to coupt, alte, steal,
o desto% usin) a compute o othe simila infomation and
communication devices, without the /nowled)e and consent of the
owne of the compute o infomation and communications s%stem,
includin) the intoduction of compute viuses and the li/e, esultin) on
the couption, destuction, alteation, theft o loss of electonic data
messa)es o electonic documents shall be punished b% a minimum
fine of 8ne hunded thousand pesos 3P#11,111.114 and a ma+imum
commensuate to the dama)e incued and a mandato% impisonment
of si+ 374 months to thee 304 %eas.
"N >"I<T 8! A>> T<E !8REI8"NI, the petition is IRANTE&. The
assailed 8des of the Re)ional Tial Cout and the &ecision of the
Cout of Appeals ae RE*ER@E& and @ET A@"&E. The Re)ional Tial
Cout is diected to issue an ode )antin) the motion of the petitione
to 5uash the Amended "nfomation.
@8 8R&ERE&.
ROMEO . CALLEO, SR.
Associate ,ustice