THEFT ART.

308
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 latter’s consent.

Persons liable
1. Those who, with intent to gain, but without violence against or intimidation of persons nor force
upon things, take personal property of another without the latter’s consent.
2. Those who having found lost property, fail to deliver the same to the local authorities or to its
owner.

NOTE: Lost property includes stolen property so that the accused who found a stolen horse is
liable if he fails to deliver the same to the owner or to the authorities since the term “lost” is
generic in nature and embraces loss by stealing or by any act of a person other than the owner
as well as by the act of the owner himself through same casual occurrence (People v. Rodrigo,
G.R. No. L‐18507, Mar. 31, 1966).

3. Those who after having maliciously damaged the property of another, remove or make use of
the fruits or object of the damage caused by them.
4. Those who enter an enclosed estate or a field where trespass is forbidden or which belongs to
another and, without the consent of its owner, hunt or fish upon the same or gather fruits,
cereals or other forest or farm products.

Elements
1. There is taking of personal property
2. Property taken belongs to another
3. Taking was done with intent to gain
4. Taking was done without the consent of the owner

Illustration: While praying in church, A felt and saw his wallet being taken by B, but because of
the solemnity of the proceedings, did not make any move; while the taking was with his
knowledge, it was without his consent, and Theft is committed.

5. Taking is accomplished without the use of violence against or intimidation of persons of force
upon things.

“Taking”
It means the act of depriving another of the possession and dominion of movable property. The taking
must be accompanied by the intention, at the time of the taking, of withholding the thing with some
character of permanency.

Materiality of ownership in theft

Ownership is immaterial in theft. The subject of the crime of theft is any personal property belonging to
another. Hence, as long as the property taken does not belong to the accused who has a valid claim
thereover, it is immaterial whether said offender stole it from the owner, a mere possessor, or even a
thief of the property (Miranda v. People, January 2012).
Illustration: Where the finder of the lost or mislaid property entrusts it to another for delivery to a
designated owner, the person to whom it is thus confided, assumes by voluntary substitution, as to both
the property and the owner, the same relation as was occupied by the finder. If he misappropriates it,
he is guilty of Theft as if he were the actual finder of the same (People v. Avila, 44 Phil. 720 [1923]).

Q: Mario found a watch in a jeep he was riding, and since it did not belong to him, he approached
policeman P and delivered the watch with instruction to return the same to whoever may be found to
be the owner. P failed to return the watch to the owner and, instead, sold it and appropriated for
himself the proceeds of the sale. Charged with theft, P reasoned out that he cannot be found guilty
because it was not he who found the watch and moreover, the watch turned out to be stolen property.
Is P's defense valid? (1998 Bar Question)
A: No, it is not valid. In a charge for theft, it is enough that the personal property subject thereof belongs
to another and not to the offender. It is irrelevant whether the person deprived of the possession of the
watch has or has no right to the watch. Theft is committed by one who, with intent to gain, appropriates
property of another without the consent of its owner. And the crime is committed even when the
offender receives property of another but acquires only physical possession to hold the same. P is a
finder in law liable for theft not estafa.

Test to determine whether an object can be the subject of theft

The test of what is the proper subject of larceny seems to be not whether the subject is corporeal but
whether it is capable of appropriation by another.

NOTE: In the old ruling, when a person stole a check but was not able to use the same because the
check bounced, he shall be guilty of the crime of theft, according to the value of the parchment. In the
new ruling, following under the same circumstances, he shall be guilty of an impossible crime (Jacinto v.
People of the Philippines, G.R. No. 162540, July 13, 2009).

Complete unlawful taking

Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even
if he has no opportunity to dispose of the same.

Immateriality of carrying away of the thing taken

In theft, it is not required for the thief to be able to carry away the thing taken from the owner. The
consummation of this crime takes place upon the voluntary and malicious taking of the property which
is realized upon the material occupation of the taking, that is, when he had full possession thereof even
if he did not have the opportunity to dispose of the same.

Proof that the accused is in possession of a recently stolen property gives rise to a valid presumption
that he stole the property.

No crime of frustrated theft

Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the
felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the
offense could only be attempted theft, if at all. With these considerations, under Article 308 of the RPC,
theft cannot have a frustrated stage. Theft can only be attempted or consummated (Valenzuela v.
People, June 2007).
NOTE: The ability of the offender to freely dispose of the property stolen is not a constitutive element of
the crime of theft. Such factor runs immaterial to the statutory definition of theft, which is the taking,
with intent to gain, of personal property of another without the latter’s consent.

Theft v. Estafa
THEFT ESTAFA
The crime is theft if only the physical or material Where both the material and juridical possession
possession of the thing is transferred. are transferred, misappropriation of the property
would constitute estafa.

Theft v. Robbery
THEFT ROBBERY
The offender does not use violence or The offender uses violence or intimidation or
intimidation or does not enter a house or enters a house or building through any of the
building through any of the means specified in means specified in Articles 299 and 302
Articles 299 and 302

QUALIFIED THEFT ART. 310

Qualified Theft
1. If theft is committed by a domestic servant
2. If the theft is committed with grave abuse of confidence

NOTE: If the offense is to be qualified by abuse of confidence, the abuse must be grave, like an
accused who was offered food and allowed to sleep in the house of the complainant out of the
latter’s pity and charity, but stole the latter’s money in his house when he left the place.

3. If the property stolen is a motor vehicle, mail matter or large cattle

4. If the property stolen consist of coconuts taken from the premises of a plantation
5. If the property stolen is fish taken from a fishpond or fishery
6. If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance.

Q: Accused-appellant is a Branch Manager of UCC. It was alleged that he used the credit line of
accredited dealers in favor of persons who either had no credit lines or had exhausted their credit lines.
He diverted cement bags from the company’s Norzagaray Plant or La Union Plant to truckers who would
buy cement for profit. In these transactions, he instructed the customers that payments be made in the
form of “Pay to Cash” checks, for which he did not issue any receipts. He did not remit the checks but
these were either encashed or deposited to his personal bank account. What is the crime committed?
A: Qualified theft through grave abuse of confidence. His position entailed a high degree of confidence,
having access to funds collected from UCC clients. As Branch Manager of UCC who was authorized to
receive payments from UCC customers, he gravely abused the trust and confidence reposed upon him
by the management of UCC. Precisely, by using that trust and confidence, accused-appellant was able
to perpetrate the theft of UCC funds to the grave prejudice of the latter (People v. Mirto, October 2011).

Q. Mrs. S was a bank teller. In need of money, she took P5,000.00 from her money drawer and made it
appear that a certain depositor made a withdrawal from his account when in fact no such withdrawal
was made. What crime was committed by Mrs. S?
A: Mrs. S is liable for qualified theft. Mrs. S was only in material possession of the deposits as she
received the same in behalf of the bank. Juridical possession remains with the bank. Juridical possession
means possession which gives the transferee a right over the thing which the transferee may set up
even against the owner. If a bank teller appropriates the money for personal gain then the felony
committed is theft. Further, since Mrs. S occupies a position of confidence, and the bank places money
in her possession due to the confidence reposed on her, the felony of qualified theft was committed
(Roque v. People G.R. No. 138954 Nov. 25, 2004).

THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM ART. 311
Theft of property of National Library and National Museum has a fixed penalty regardless of its value,
but if the crime is committed with grave abuse of confidence, the penalty for qualified theft shall be
imposed.