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Criminal Law; Theft; Elements of theft.—The elements of
theft under Article 308 of the Revised Penal Code are as
follows: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons
or force upon things.
Same; Same; Property; The only requirement for a
personal property to be the object of theft under the Penal
Code is that it be capable of appropriation.—The only
requirement for a personal property to be the object of theft
under the penal code is that it be capable of appropriation. It
need not be capable of “asportation,” which is defined as
“carrying away.” Jurisprudence is settled that to “take”
under the theft provision of the penal code does not require
asportation or carrying away. To appropriate means to
deprive the lawful owner of the thing. The word “take” in the
Revised Penal Code in-
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** Per Special Order No. 545, dated December 16, 2008, signed by Chief
Justice Reynato S. Puno, designating Associate Justice Minita V. Chico-
Nazario to replace Associate Justice Renato C. Corona, who is on leave.
* EN BANC.
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RESOLUTION
YNARES-SANTIAGO, J.:
On February 27, 2006, this Court’s First Division
rendered judgment in this case as follows:
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1 Rollo, p. 728.
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away.”7 Jurisprudence is settled that to “take” under
the theft provision of the penal code does not require
asportation or carrying away.8
To appropriate means to deprive the lawful owner of
the thing.9 The word “take” in the Revised Penal Code
includes any act intended to transfer possession which,
as held in the assailed Decision, may be committed
through the use of the offenders’ own hands, as well as
any mechanical device, such as an access device or card
as in the instant case. This includes controlling the
destination of the property stolen to deprive the owner
of the property, such as the use of a meter tampering,
as held in Natividad v. Court of Appeals,10 use of a
device to fraudulently obtain gas, as held in United
States v. Tambunting, and the use of a jumper to divert
electricity, as held in the cases of United States v.
Genato, United States v. Carlos, and United States v.
Menagas.11
As illustrated in the above cases, appropriation of
forces of nature which are brought under control by
science such as electrical energy can be achieved by
tampering with any apparatus used for generating or
measuring such forces of nature, wrongfully
redirecting such forces of nature from such apparatus,
or using any device to fraudulently obtain such forces
of nature. In the instant case, petitioner was charged
with engaging in International Simple Resale (ISR) or
the unauthorized routing and completing of
international long distance calls using lines, cables,
antennae, and/or air wave frequency and connecting
these calls directly to the local or domestic exchange
facilities of the country where destined.
As early as 1910, the Court declared in Genato that
ownership over electricity (which an international long
distance call consists of), as well as telephone service, is
protected by the provisions on theft of the Penal Code.
The pertinent provision of the Revised Ordinance of
the City of Manila, which was involved in the said
case, reads as follows:
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impulses back to human voice/voice signal before the called
party receives the same. In other words, a telecommunication
company both converts/reconverts the human voice/voice
signal and provides the medium for transmitting the same.
39. Moreover, in the case of an international telephone
call, once the electronic impulses originating from a foreign
telecommunication company country (i.e. Japan) reaches the
Philippines through a local telecommunication company (i.e.
private respondent PLDT), it is the latter which decodes,
augments and enhances the electronic impulses back to the
human voice/voice signal and provides the medium (i.e.
electric current) to enable the called party to receive the call.
Thus, it is not true that the foreign telecommunication
company provides (1) the electric current which transmits
the human voice/voice signal of the caller and (2) the electric
current for the called party to receive said human voice/voice
signal.
40. Thus, contrary to petitioner Laurel’s assertion, once
the electronic impulses or electric current originating from a
foreign telecommunication company (i.e. Japan) reaches
private respondent PLDT’s network, it is private respondent
PLDT which decodes, augments and enhances the electronic
impulses back to the human voice/voice signal and provides
the medium (i.e. electric current) to enable the called party to
receive the call. Without private respondent PLDT’s network,
the human voice/voice signal of the calling party will never
reach the called party.”16
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SEPARATE OPINION
CORONA, J.:
The bone of contention in this case is: who owns the
telephone calls that we make? If respondent Philippine
Long Distance Telephone Company (PLDT) can claim
ownership over them, then petitioner Luis Marcos P.
Laurel (Laurel) can be charged with theft of such
telephone calls under Article 308 of the Revised Penal
Code. If PLDT does not own them, then the crime of
theft was not committed and Laurel cannot be charged
with this crime.
One view is that PLDT owns the telephone calls
because it is responsible for creating such calls. The
opposing view is that it is the caller who owns the
phone calls and PLDT merely encodes and transmits
them.
The question of whether PLDT creates the phone
calls or merely encodes and transmits them is a
question of fact that can be answered by science. I
agree with Justice Consuelo Ynares-Santiago that,
while telephone calls “take the form of electrical
energy, it cannot be said that such [telephone] calls
were personal properties belonging to PLDT since the
latter could not have acquired ownership over such
calls. PLDT merely encodes, augments, enhances,
decodes and transmits said calls using its complex
infrastructure and facilites.”
In my view, it is essential to differentiate between the
conversation of a caller and recipient of the call, and
the telephone service that
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CONCURRING OPINION
TINGA, J.:
I do not have any substantive disagreements with
the ponencia. I write separately to flesh out one of the
key issues behind the Court’s present disposition—
whether the Philippine Long Distance Company
(PLDT) can validly claim ownership over the telephone
calls made using its telephone services. As the subject
Amended Information had alleged that petitioners had
“unlawfully and feloniously take, steal and use the
international long distance calls belonging to PLDT,”
said information could have been sustained only if its
premise were accepted that PLDT indeed owned those
phone calls.
I.
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II.
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7 Id., at p. 254.
8 Id., at p. 255. Emphasis not mine.
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10See e.g. People v. Bustinera, G.R. No. 148233, 8 June 2004, 431
SCRA 284, 291, citing People v. Sison, 322 SCRA 345, 363-364
(2000).
11 “When a person speaks into a telephone, the sound waves
created by his voice enter the mouthpiece. An electric current carries
the sound to the telephone of the person he is talking to.” See How
the Telephone Works, at http://areaonline.com/phone/telworks.html.
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consider such calls as possessing similar physical
characteristics as electricity.
The assailed Decision conceded that when a
telephone call was made, “the human voice [is]
converted into electronic impulses or electrical
current.”12 As the Resolution now correctly points out,
electricity or electronic energy may be the subject of
theft, as it is personal property capable of
appropriation. Since physically a telephone call is in
the form of an electric signal, our jurisprudence
acknowledging that electricity is personal property
which may be stolen through theft is applicable.
III.
I now turn to the issue of the legal ownership of the
“international long distance calls,” or telephone calls in
general for that matter. An examination of the physical
characteristics of telephone calls is useful for our
purposes.
As earlier stated, telephone calls take on the form of
electrical current, though they are distinguished from
ordinary electricity in that they are augmented by the
human voice which is transmitted from one phone to
another. A material inquiry is how these calls are
generated in the first place?
It bears significance that neither the RTC nor the
Court of Appeals concluded that PLDT owns the
telephone calls. Instead, they concluded that PLDT
owns the telephone service, a position that is
intellectually plausible, unlike the contention that
PLDT owns the actual calls themselves. Yet PLDT is
willing to make the highly controversial claim that it
owns the phone calls, despite the absence of any
reliable or neutral evidence to that effect.
PLDT argues that it does not merely transmit the
telephone calls but “actually creates them.” The claim
should beggar belief, if only for the underlying
implication that if PLDT “creates” telephone calls, such
calls can come into existence without the participation
of a caller, or a human voice for that matter.
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12 Id., at p. 273.
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telephone service providers has been akin to common
carriers, both in the United States and the
Philippines.21
The legal paradigm that treats PLDT as akin to a
common carrier should alert against any notion that it
is the owner of the “long distance overseas calls”
alleged as having been stolen in the Amended
Information. More precisely, it merely transmits these
calls, owned by another, to the intended recipient.
Applying the common carrier paradigm, when a public
transport system is contracted to transport goods or
persons to a destination, the transport company does
not acquire ownership over such goods or such persons,
even though it is in custody of the same for the
duration of the trip. Just because the phone calls are
transmitted using the facilities and services of PLDT,
it does not follow that PLDT is the owner of such calls.
On this score, the distinction must be made between
a telephone company such as PLDT, and a power
company such as Meralco. Both companies are engaged
in the business of distributing electrical energy to end-
users. In the case of Meralco, it is pure electricity,
while in PLDT’s case, it is an electronic signal
converted out of an indispensable element which is the
human voice and transformed back to the original
voice at the point of reception. Neither Meralco nor
PLDT created the electronic energy it transmits. But
in Meralco’s case, it purchases the electricity from a
generating company such as the National Power
Corporation, and it may thus be considered as the
owner of such electricity by reason of the sale. PLDT’s
case is different, as it does not purchase the electronic
signals it transmits. These signals are created by the
interaction between the human voice and the electrical
current.
Indeed, the logical consequences should it be held that
PLDT owns these “long distance overseas calls” are
quite perilous. PLDT, as owner of these calls (or any
telephone calls made for that matter),
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