G.R. No.

155076 February 27, 2006

LUIS MARCOS P. LAUREL, Petitioner,

vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, Makati City,
Branch 150, PEOPLE OF THE PHILIPPINES& PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY, Respondents.

Facts:

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

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

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

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

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

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

On or about September 10-19, 1999, or prior thereto, in Makati City, and within the jurisdiction
of this Honorable Court, the accused, conspiring and confederating together and all of them
mutually helping and aiding one another, with intent to gain and without the knowledge and
consent of the Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfully and feloniously take, steal and use the international long distance calls belonging to
PLDT by conducting International Simple Resale (ISR), which is a method of routing and
completing international long distance calls using lines, cables, antennae, and/or air wave
frequency which connect directly to the local or domestic exchange facilities of the country
where the call is destined, effectively stealing this business from PLDT while using its facilities
in the estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in the said
amount.

CONTRARY TO LAW.13

Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the ground
that the factual allegations in the Amended Information do not constitute the felony of theft
under Article 308 of the Revised Penal Code. He averred that the Revised Penal Code, or any
other special penal law for that matter, does not prohibit ISR operations. He claimed that
telephone calls with the use of PLDT telephone lines, whether domestic or international, belong
to the persons making the call, not to PLDT. He argued that the caller merely uses the facilities
of PLDT, and what the latter owns are the telecommunication infrastructures or facilities through
which the call is made. He also asserted that PLDT is compensated for the callers use of its
facilities by way of rental; for an outgoing overseas call, PLDT charges the caller per minute,
based on the duration of the call. Thus, no personal property was stolen from PLDT. According
to Laurel, the P20,370,651.92 stated in the Information, if anything, represents the rental for the
use of PLDT facilities, and not the value of anything owned by it. Finally, he averred that the
allegations in the Amended Information are already subsumed under the Information for
violation of Presidential Decree (P.D.) No. 401 filed and pending in the Metropolitan Trial Court
of Makati City, docketed as Criminal Case No. 276766.
The prosecution, through private complainant PLDT, opposed the motion,14 contending that the
movant unlawfully took personal property belonging to it, as follows: 1) intangible telephone
services that are being offered by PLDT and other telecommunication companies, i.e., the
connection and interconnection to their telephone lines/facilities; 2) the use of those facilities
over a period of time; and 3) the revenues derived in connection with the rendition of such
services and the use of such facilities.

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

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

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

Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but
without violence, against or intimidation of persons nor force upon things, shall take personal
property of another without the latters consent.

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

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

For one to be guilty of theft, the accused must have an intent to steal (animus furandi) personal
property, meaning the intent to deprive another of his ownership/lawful possession of personal
property which intent is apart from and concurrently with the general criminal intent which is an
essential element of a felony of dolo (dolus malus).

An information or complaint for simple theft must allege the following elements: (a) the taking
of personal property; (b) the said property belongs to another; (c) the taking be done with intent
to gain; and (d) the taking be accomplished without the use of violence or intimidation of
person/s or force upon things.51

One is apt to conclude that "personal property" standing alone, covers both tangible and
intangible properties and are subject of theft under the Revised Penal Code. But the words
"Personal property" under the Revised Penal Code must be considered in tandem with the word
"take" in the law. The statutory definition of "taking" and movable property indicates that,
clearly, not all personal properties may be the proper subjects of theft. The general rule is that,
only movable properties which have physical or material existence and susceptible of occupation
by another are proper objects of theft.52 As explained by Cuelo Callon: "Cosa juridicamente es
toda sustancia corporal, material, susceptible de ser aprehendida que tenga un valor
cualquiera."53

According to Cuello Callon, in the context of the Penal Code, only those movable properties
which can be taken and carried from the place they are found are proper subjects of theft.
Intangible properties such as rights and ideas are not subject of theft because the same cannot be
"taken" from the place it is found and is occupied or appropriated.

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

Thus, movable properties under Article 308 of the Revised Penal Code should be distinguished
from the rights or interests to which they relate. A naked right existing merely in contemplation
of law, although it may be very valuable to the person who is entitled to exercise it, is not the
subject of theft or larceny.55 Such rights or interests are intangible and cannot be "taken" by
another. Thus, right to produce oil, good will or an interest in business, or the right to engage in
business, credit or franchise are properties. So is the credit line represented by a credit card.
However, they are not proper subjects of theft or larceny because they are without form or
substance, the mere "breath" of the Congress. On the other hand, goods, wares and merchandise
of businessmen and credit cards issued to them are movable properties with physical and
material existence and may be taken by another; hence, proper subjects of theft.

There is "taking" of personal property, and theft is consummated when the offender unlawfully
acquires possession of personal property even if for a short time; or if such property is under the
dominion and control of the thief. The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property adverse to the rights of the owner
or the lawful possessor thereof.56 It is not necessary that the property be actually carried away
out of the physical possession of the lawful possessor or that he should have made his escape
with it.57 Neither asportation nor actual manual possession of property is required. Constructive
possession of the thief of the property is enough.58

The essence of the element is the taking of a thing out of the possession of the owner without his
privity and consent and without animus revertendi.59

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

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