G. R. No.

160188              June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed against
him, but instead insists that as a result, he should be adjudged guilty of frustrated theft
only, not the felony in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two well-known
decisions1 rendered decades ago by the Court of Appeals, upholding the existence of
frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an
accused was guilty of frustrated or consummated theft was in 1918, in People v.
Adiao.3 A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in

Empelis v. IAC.5 This petition now gives occasion for us to finally and fully measure if or
how frustrated theft is susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon
(Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and
Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart
(SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was
then manning his post at the open parking area of the supermarket. Lago saw
petitioner, who was wearing an identification card with the mark "Receiving Dispatching
Unit (RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand.
Petitioner unloaded these cases in an open parking space, where Calderon was
waiting. Petitioner then returned inside the supermarket, and after five (5) minutes,
emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the
same area in the open parking space.7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and
directed it towards the parking space where Calderon was waiting. Calderon loaded the
cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were
eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon
reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security
guards of the incident. Petitioner and Calderon were apprehended at the scene, and the
stolen merchandise recovered.8 The filched items seized from the duo were four (4)
cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases
of detergent, the goods with an aggregate value of ₱12,090.00.9

Petitioner and Calderon were first brought to the SM security office before they were
transferred on the same day to the Baler Station II of the Philippine National Police,
Quezon City, for investigation. It appears from the police investigation records that apart
from petitioner and Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP Station in
connection with the incident. However, after the matter was referred to the Office of the
Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the
incident.10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club on
the afternoon of 19 May 1994 when they were haled by Lago and his fellow security
guards after a commotion and brought to the Baler PNP Station. Calderon alleged that
on the afternoon of the incident, he was at the Super Sale Club to withdraw from his
ATM account, accompanied by his neighbor, Leoncio Rosulada.11 As the queue for the
ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to
head out of the building to check what was

transpiring. As they were outside, they were suddenly "grabbed" by a security guard,
thus commencing their detention.12 Meanwhile, petitioner testified during trial that he
and his cousin, a Gregorio Valenzuela,13 had been at the parking lot, walking beside the
nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw
the security guard Lago fire a shot. The gunshot caused him and the other people at the
scene to start running, at which point he was apprehended by Lago and brought to the
security office. Petitioner claimed he was detained at the security office until around
9:00 p.m., at which time he and the others were brought to the Baler Police Station. At
the station, petitioner denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutor’s office where he was
charged with theft.14 During petitioner’s cross-examination, he admitted that he had
been employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though
not at SM.15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of

Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate prison term of two (2)
years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.17 The RTC found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused as perpetrators
of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a
brief19 with the Court of Appeals, causing the appellate court to deem Calderon’s appeal
as abandoned and consequently dismissed. Before the Court of Appeals, petitioner
argued that he should only be convicted of frustrated theft since at the time he was
apprehended, he was never placed in a position to freely dispose of the articles
stolen.20 However, in its Decision dated 19 June 2003,21 the Court of Appeals rejected
this contention and affirmed petitioner’s conviction.22 Hence the present Petition for
Review,23 which expressly seeks that petitioner’s conviction "be modified to only of
Frustrated Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his
felonious intent and his actual participation in the theft of several cases of detergent with
a total value of ₱12,090.00 of which he was charged.25 As such, there is no cause for
the Court to consider a factual scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only question to consider is whether
under the given facts, the theft should be deemed as consummated or merely
frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites26 two

decisions rendered many years ago by the Court of Appeals: People v. Diño27 and
People v. Flores.28 Both decisions elicit the interest of this Court, as they modified trial
court convictions from consummated to frustrated theft and involve a factual milieu that
bears similarity to the present case. Petitioner invoked the same rulings in his appeal to
the Court of Appeals, yet the appellate court did not expressly consider the import of the
rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and
Flores rulings since they have not yet been expressly adopted as precedents by this
Court. For whatever reasons, the occasion to define or debunk the crime of frustrated
theft has not come to pass before us. Yet despite the silence on our part, Diño and
Flores have attained a level of renown reached by very few other appellate court
rulings. They are comprehensively discussed in the most popular of our criminal law
annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios
that populate criminal law exams more than they actually occur in real life. Indeed, if we
finally say that Diño and Flores are doctrinal, such conclusion could profoundly
influence a multitude of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen property through a
supervised egress, such as a supermarket checkout counter or a parking area pay
booth, may easily call for the application of Diño and Flores. The fact that lower courts
have not hesitated to lay down convictions for frustrated theft further validates that Diño
and Flores and the theories offered therein on frustrated theft have borne some weight
in our jurisprudential system. The time is thus ripe for us to examine whether those
theories are correct and should continue to influence prosecutors and judges in the
future.

III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues
relative to "frustrated theft," it is necessary to first refer to the basic rules on the three
stages of crimes under our Revised Penal Code.30

Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated "when all the elements necessary for its
execution and accomplishment are present." It is frustrated "when the offender performs
all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator." Finally, it is attempted "when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of
the acts constituting the crime included between the act which begins the commission of
the crime and the last act performed by the offender which, with prior acts, should result
in the consummated crime.31 After that point has been breached, the subjective phase
ends and the objective phase begins.32 It has been held that if the offender never
passes the subjective phase of the offense, the crime is merely attempted.33 On the
other hand, the subjective phase is completely passed in case of frustrated crimes, for
in such instances, "[s]ubjectively the crime is complete."34

Truly, an easy distinction lies between consummated and frustrated felonies on one
hand, and attempted felonies on the other.

So long as the offender fails to complete all the acts of execution despite commencing
the commission of a felony, the crime is undoubtedly in the attempted stage. Since the
specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by the accused as
against the acts that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated
necessitates an initial concession that all of the acts of execution have been performed
by the offender. The critical distinction instead is whether the felony itself was actually
produced by the acts of execution. The determination of whether the felony was
"produced" after all the acts of execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition that generally furnishes the
elements of each crime under the Revised Penal Code, while the elements in turn
unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an
important characteristic of a crime, that "ordinarily, evil intent must unite with an
unlawful act for there to be a crime," and accordingly, there can be no crime when
the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala in
se,36 mens rea has been defined before as "a guilty mind, a guilty or wrongful purpose
or criminal intent,"37 and "essential for criminal liability."38 It follows that the statutory
definition of our mala in se crimes must be able to supply what the mens rea of the
crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law
that contains no mens rea requirement infringes on constitutionally protected
rights."39 The criminal statute must also provide for the overt acts that constitute the
crime. For a crime to exist in our legal law, it is not enough that mens rea be shown;
there must also be an actus reus.40

It is from the actus reus and the mens rea, as they find expression in the criminal
statute, that the felony is produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes would
inevitably ensue on the elemental question whether or not a crime was committed,
thereby presaging the undesirable and legally dubious set-up under which the judiciary
is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code
does not suffer from such infirmity. From the statutory definition of any felony, a decisive
passage or term is embedded which attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or homicide expressly uses
the phrase "shall kill another," thus making it clear that the felony is produced by the
death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal
Code, its elements are spelled out 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 latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall
remove or make use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden
or which belongs to another and without the consent of its owner, shall hunt or fish upon
the same or shall gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly
idiosyncratic means by which theft may be committed.41 In the present discussion, we
need to concern ourselves only with the general definition since it was under it that the
prosecution of the accused was undertaken and sustained. On the face of the definition,
there is only one operative act of execution by the actor involved in theft ─ the taking of
personal property of another.

It is also clear from the provision that in order that such taking may be qualified as theft,
there must further be present the descriptive circumstances that the taking was with
intent to gain; without force upon things or violence against or intimidation of persons;
and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for
in Article 308 of the Revised Penal Code, namely: (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.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which
under early Roman law as defined by Gaius, was so broad enough as to encompass
"any kind of physical handling of property belonging to another against the will of the
owner,"43 a definition similar to that by Paulus that a thief "handles (touches, moves) the
property of another."44 However, with the Institutes of Justinian, the idea had taken hold
that more than mere physical handling, there must further be an intent of acquiring gain
from the object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel
ipsius rei, vel etiam usus ejus possessinisve."45 This requirement of animo lucrandi, or
intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it
has since been abandoned in Great Britain.46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful

taking," to characterize theft. Justice Regalado notes that the concept of apoderamiento
once had a controversial interpretation and application. Spanish law had already
discounted the belief that mere physical taking was constitutive of apoderamiento,
finding that it had to be coupled with "the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the lawful owner of the
thing."47 However, a conflicting line of cases decided by the Court of Appeals ruled,
alternatively, that there must be permanency in the taking48 or an intent to permanently
deprive the owner of the stolen property;49 or that there was no need for permanency in
the taking or in its intent, as the mere temporary possession by the offender or
disturbance of the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted the latter
thought that there was no need of an intent to permanently deprive the owner of his
property to constitute an unlawful taking.51

So long as the "descriptive" circumstances that qualify the taking are present, including
animo lucrandi and apoderamiento, the completion of the operative act that is the taking
of personal property of another establishes, at least, that the transgression went beyond
the attempted stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the pushcart, such
seizure motivated by intent to gain, completed without need to inflict violence or
intimidation against persons nor force upon things, and accomplished without the
consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a
conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are

obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following
that provision, the theft would have been frustrated only, once the acts committed by
petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce
[such theft] by reason of causes independent of the will of the perpetrator." There are
clearly two determinative factors to consider: that the felony is not "produced," and that
such failure is due to causes independent of the will of the perpetrator. The second
factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in
the Revised Penal Code52 as to when a particular felony is "not produced," despite the
commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary

to inquire as to how exactly is the felony of theft "produced." Parsing through the
statutory definition of theft under Article 308, there is one apparent answer provided in
the language of the law — that theft is already "produced" upon the "tak[ing of] personal
property of another without the latter’s consent."

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was

charged with theft after he abstracted a leather belt from the baggage of a foreign
national and secreted the item in his desk at the Custom House. At no time was the
accused able to "get the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction."54 Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court
reversed, saying that neither circumstance was decisive, and holding instead that the
accused was guilty of consummated theft, finding that "all the elements of the
completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he
was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that
he was at that moment caught by the policeman but sometime later. The court said: "[x
x x] The trial court did not err [x x x ] in considering the crime as that of consummated
theft instead of frustrated theft inasmuch as nothing appears in the record showing that
the policemen who saw the accused take the fruit from the adjoining land arrested him
in the act and thus prevented him from taking full possession of the thing stolen and
even its utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in
a church. The latter on account of the solemnity of the act, although noticing the theft,
did not do anything to prevent it. Subsequently, however, while the defendant was still
inside the church, the offended party got back the money from the defendant. The court
said that the defendant had performed all the acts of execution and considered the theft
as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened
up a case, and from the case took a small box, which was also opened with a key, from
which in turn he took a purse containing 461 reales and 20 centimos, and then he
placed the money over the cover of the case; just at this moment he was caught by two
guards who were stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having materially taken
possession of the money from the moment he took it from the place where it had been,
and having taken it with his hands with intent to appropriate the same, he executed all
the acts necessary to constitute the crime which was thereby produced; only the act of
making use of the thing having been frustrated, which, however, does not go to make
the elements of the consummated crime." (Decision of the Supreme Court of Spain,
June 13, 1882.)56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein,
that the criminal actors in all these cases had been able to obtain full possession of the
personal property prior to their apprehension. The interval between the commission of
the acts of theft and the apprehension of the thieves did vary, from "sometime later" in
the 1898 decision; to the very moment the thief had just extracted the money in a purse
which had been stored as it was in the 1882 decision; and before the thief had been
able to spirit the item stolen from the building where the theft took place, as had
happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of
frustrated rather than consummated theft. The case is People v. Sobrevilla, 57 where the
accused, while in the midst of a crowd in a public market, was already able to abstract a
pocketbook from the trousers of the victim when the latter, perceiving the theft, "caught
hold of the [accused]’s shirt-front, at the same time shouting for a policeman; after a
struggle, he recovered his pocket-book and let go of the defendant, who was afterwards
caught by a policeman."58 In rejecting the contention that only frustrated theft was
established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the
pocket-book, and that determines the crime of theft. If the pocket-book was afterwards
recovered, such recovery does not affect the [accused’s] criminal liability, which arose
from the [accused] having succeeded in taking the pocket-book.59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases
cited in the latter, in that the fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how momentary, was able to
consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the
position of petitioner in this case. Yet to simply affirm without further comment would be
disingenuous, as there is another school of thought on when theft is consummated, as
reflected in the Diño and Flores decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15
years before Flores. The accused therein, a driver employed by the United States Army,
had driven his truck into the port area of the South Harbor, to unload a truckload of
materials to waiting U.S. Army personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was approaching a checkpoint of the
Military Police, he was stopped by an M.P. who inspected the truck and found therein
three boxes of army rifles. The accused later contended that he had been stopped by
four men who had loaded the boxes with the agreement that they were to meet him and
retrieve the rifles after he had passed the checkpoint. The trial court convicted accused
of consummated theft, but the Court of Appeals modified the conviction, holding instead
that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to
let the boxes of rifles "pass through the checkpoint, perhaps in the belief that as the
truck had already unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or checking."60 This point was
deemed material and indicative that the theft had not been fully produced, for the Court
of Appeals pronounced that "the fact determinative of consummation is the ability of the
thief to dispose freely of the articles stolen, even if it were more or less
momentary."61 Support for this proposition was drawn from a decision of the Supreme
Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de

la consumacion del delito de hurto es preciso que so haga en circunstancias tales que
permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin materializar
demasiado el acto de tomar la cosa ajena.62

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to
the control and disposal of the culprits, the articles stolen must first be passed through
the M.P. check point, but since the offense was opportunely discovered and the articles
seized after all the acts of execution had been performed, but before the loot came
under the final control and disposal of the looters, the offense can not be said to have
been fully consummated, as it was frustrated by the timely intervention of the guard.
The offense committed, therefore, is that of frustrated theft.63

Diño thus laid down the theory that the ability of the actor to freely dispose of the items
stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals
some 15 years later, in Flores, a case which according to the division of the court that
decided it, bore "no substantial variance between the circumstances [herein] and in
[Diño]."64 Such conclusion is borne out by the facts in Flores. The accused therein, a
checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one
empty sea van to the truck driver who had loaded the purportedly empty sea van onto
his truck at the terminal of the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of the terminal. However, the
guards insisted on inspecting the van, and discovered that the "empty" sea van had
actually contained other merchandise as well.65 The accused was prosecuted for theft
qualified by abuse of confidence, and found himself convicted of the consummated
crime. Before the Court of Appeals, accused argued in the alternative that he was guilty
only of attempted theft, but the appellate court pointed out that there was no intervening
act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Diño, did find that the
accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to
distinguish that case from Diño, citing a "traditional ruling" which unfortunately was not
identified in the decision itself. However, the Court of Appeals pointed out that the said
"traditional ruling" was qualified by the words "is placed in a situation where [the actor]
could dispose of its contents at once."66 Pouncing on this qualification, the appellate
court noted that "[o]bviously, while the truck and the van were still within the compound,
the petitioner could not have disposed of the goods ‘at once’." At the same time, the
Court of Appeals conceded that "[t]his is entirely different from the case where a much
less bulk and more common thing as money was the object of the crime, where freedom
to dispose of or make use of it is palpably less restricted,"67 though no further
qualification was offered what the effect would have been had that alternative
circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as
to whether the crime of theft was produced is the ability of the actor "to freely dispose of
the articles stolen, even if it were only momentary." Such conclusion was drawn from an
1888 decision of the Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, "es preciso que so haga en circunstancias tales
que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente."
The qualifier "siquiera sea mas o menos momentaneamente" proves another important
consideration, as it implies that if the actor was in a capacity to freely dispose of the
stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases
were retrieved from the actor before they could be physically extracted from the
guarded compounds from which the items were filched. However, as implied in Flores,
the character of the item stolen could lead to a different conclusion as to whether there
could have been "free disposition," as in the case where the chattel involved was of
"much less bulk and more common x x x, [such] as money x x x."68

In his commentaries, Chief Justice Aquino makes the following pointed observation on
the import of the Diño ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is
able to freely dispose of the stolen articles even if it were more or less momentary. Or
as stated in another case[69 ], theft is consummated upon the voluntary and malicious
taking of property belonging to another which is realized by the material occupation of
the thing whereby the thief places it under his control and in such a situation that he
could dispose of it at once. This ruling seems to have been based on Viada’s opinion
that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other
cases, also states that "[i]n theft or robbery the crime is consummated after the accused
had material possession of the thing with intent to appropriate the same, although his
act of making use of the thing was frustrated."72

There are at least two other Court of Appeals rulings that are at seeming variance with
the Diño and Flores rulings. People v. Batoon73 involved an accused who filled a
container with gasoline from a petrol pump within view of a police detective, who
followed the accused onto a passenger truck where the arrest was made. While the trial
court found the accused guilty of frustrated qualified theft, the Court of Appeals held that
the accused was guilty of consummated qualified theft, finding that "[t]he facts of the
cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with
intent to gain is enough to consummate the crime of theft."74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a
supply depot and loaded them onto a truck. However, as the truck passed through the
checkpoint, the stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with those in Diño, the
Court of Appeals held that the accused were guilty of consummated theft, as the
accused "were able to take or get hold of the hospital linen and that the only thing that
was frustrated, which does not constitute any element of theft, is the use or benefit that
the thieves expected from the commission of the offense."76

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that
"[w]hen the meaning of an element of a felony is controversial, there is bound to arise
different rulings as to the stage of execution of that felony."77 Indeed, we can discern
from this survey of jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of the concept of
frustrated theft itself, the question can even be asked whether there is really such a
crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and
not consummated, theft. As we undertake this inquiry, we have to reckon with the import
of this Court’s 1984 decision in Empelis v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in
the premises of his plantation, in the act of gathering and tying some coconuts. The
accused were surprised by the owner within the plantation as they were carrying with
them the coconuts they had gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested after the owner reported the
incident to the police. After trial, the accused were convicted of qualified theft, and the
issue they raised on appeal was that they were guilty only of simple theft. The Court
affirmed that the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was
consummated or frustrated was raised by any of the parties. What does appear, though,
is that the disposition of that issue was contained in only two sentences, which we
reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were
not able to perform all the acts of execution which should have produced the felony as a
consequence. They were not able to carry the coconuts away from the plantation due to
the timely arrival of the owner.80

No legal reference or citation was offered for this averment, whether Diño, Flores or the
Spanish authorities who may have bolstered the conclusion. There are indeed evident
problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to
perform all the acts of execution which should have produced the felon as a
consequence."81 However, per Article 6 of the Revised Penal Code, the crime is
frustrated "when the offender performs all the acts of execution," though not producing
the felony as a result. If the offender was not able to perform all the acts of execution,
the crime is attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes that the crime
was

frustrated because not all of the acts of execution were performed due to the timely
arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts
should elicit the conclusion that the crime was only attempted, especially given that the
acts were not performed because of the timely arrival of the owner, and not because of
spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present
petition. Even if the two sentences we had cited actually aligned with the definitions
provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it
is the product of the considered evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were sourced from an indubitable legal
premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority
on theft. Indeed, we cannot see how Empelis can contribute to our present debate,
except for the bare fact that it proves that the Court had once deliberately found an
accused guilty of frustrated theft. Even if Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely compromised by the erroneous legal
premises that inform it, and also by the fact that it has not been entrenched by
subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft
is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of
frustrated theft, it cannot present any efficacious argument to persuade us in this case.
Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
España was then in place. The definition of the crime of theft, as provided then, read as
follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni
fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la

apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado,
salvo los casos previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608,
núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme
Court decisions were handed down. However, the said code would be revised again in
1932, and several times thereafter. In fact, under the Codigo Penal Español de 1995,
the crime of theft is now simply defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre
disposicion" of the property is not an element or a statutory characteristic of the crime. It
does appear that the principle originated and perhaps was fostered in the realm of
Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries
on the 1870 Codigo Penal de España. Therein, he raised at least three questions for the
reader whether the crime of frustrated or consummated theft had occurred. The
passage cited in Diño was actually utilized by Viada to answer the question whether
frustrated or consummated theft was committed "[e]l que en el momento mismo de
apoderarse de la cosa ajena, viéndose sorprendido, la arroja al suelo."83 Even as the
answer was as stated in Diño, and was indeed derived from the 1888 decision of the
Supreme Court of Spain, that decision’s factual predicate occasioning the statement
was apparently very different from Diño, for it appears that the 1888 decision involved
an accused who was surprised by the employees of a haberdashery as he was
abstracting a layer of clothing off a mannequin, and who then proceeded to throw away
the garment as he fled.84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites
decisions of the Supreme Court of Spain that have held to that effect.85 A few decades
later, the esteemed Eugenio Cuello Calón pointed out the inconsistent application by
the Spanish Supreme Court with respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban
los sacos de harino del carro que los conducia a otro que tenían preparado, 22 febrero
1913; cuando el resultado no tuvo efecto por la intervención de la policia situada en el
local donde se realizó la sustracción que impidió pudieran los reos disponer de lo
sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento,
pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustración "muy
próxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la
sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de
frustración cuando, perseguido el culpable o sorprendido en el momento de llevar los
efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta
doctrina no es admissible, éstos, conforme a lo antes expuesto, son hurtos
consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la

cosa queda de hecho a la disposición del agente. Con este criterio coincide la doctrina
sentada últimamente porla jurisprudencia española que generalmente considera
consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por
tiempo más o menos duradero bajo su poder. El hecho de que éste pueda
aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada.
No se concibe la frustración, pues es muy dificil que el que hace cuanto es necesario
para la consumación del hurto no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos
consumados.87 (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content
with replicating the Spanish Supreme Court decisions on the matter, Cuello Calón
actually set forth his own thought that questioned whether theft could truly be frustrated,
since "pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente." Otherwise put, it would be difficult to foresee how
the execution of all the acts necessary for the completion of the crime would not
produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in
scholarly thought that obliges us to accept frustrated theft, as proposed
in Diño and Flores. A final ruling by the Court that there is no crime of frustrated theft in
this jurisdiction will not lead to scholastic pariah, for such a submission is hardly
heretical in light of Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the
question from a fresh perspective, as we are not bound by the opinions of the respected
Spanish commentators, conflicting as they are, to accept that theft is capable of
commission in its frustrated stage. Further, if we ask the question whether there is a
mandate of statute or precedent that must compel us to adopt the Diño and Flores
doctrines, the answer has to be in the negative. If we did so, it would arise not out of
obeisance to an inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a function
that allows breathing room for a variety of theorems in competition until one is ultimately
adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the
province of the legislature, through statute, to define what constitutes a particular crime
in this jurisdiction. It is the legislature, as representatives of the sovereign people, which
determines which acts or combination of acts are criminal in nature. Judicial
interpretation of penal laws should be aligned with what was the evident legislative
intent, as expressed primarily in the language of the law as it defines the crime. It is
Congress, not the courts, which is to define a crime, and ordain its punishment. 88 The
courts cannot arrogate the power to introduce a new element of a crime which was
unintended by the legislature, or redefine a crime in a manner that does not hew to the
statutory language. Due respect for the prerogative of Congress in defining
crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws
where a "narrow interpretation" is appropriate. "The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids."89

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of
the offender to freely dispose of the property stolen is not a constitutive element of the
crime of theft. It finds no support or extension in Article 308, whether as a descriptive or
operative element of theft or as the mens rea or actus reus of the felony. To restate
what this Court has repeatedly held: the elements of the crime of theft as provided for in
Article 308 of the Revised Penal Code are: (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.90

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. While
the Diño/Flores dictum is considerate to the mindset of the offender, the statutory
definition of theft considers only the perspective of intent to gain on the part of the
offender, compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the

frustrated stage, the question is again, when is the crime of theft produced? There
would be all but certain unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with intent to gain. Viewed from
that perspective, it is immaterial to the product of the felony that the offender, once
having committed all the acts of execution for theft, is able or unable to freely dispose of
the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquino’s
commentaries, as earlier cited, that "[i]n theft or robbery the crime is consummated after
the accused had material possession of the thing with intent to appropriate the same,
although his act of making use of the thing was frustrated."91

It might be argued, that the ability of the offender to freely dispose of the property stolen
delves into the concept of "taking" itself, in that there could be no true taking until the
actor obtains such degree of control over the stolen item. But even if this were correct,
the effect would be to downgrade the crime to its attempted, and not frustrated stage,
for it would mean that not all the acts of execution have not been completed, the "taking
not having been accomplished." Perhaps this point could serve as fertile ground for
future discussion, but our concern now is whether there is indeed a crime of frustrated
theft, and such consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are satisfied beyond
reasonable doubt that the taking by the petitioner was completed in this case. With
intent to gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the parking
lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he has no
opportunity to dispose of the same.92 And long ago, we asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be
appropriated into the physical power of the thief, which idea is qualified by other
conditions, such as that the taking must be effected animo lucrandi and without the
consent of the owner; and it will be here noted that the definition does not require that
the taking should be effected against the will of the owner but merely that it should be
without his consent, a distinction of no slight importance.94

Insofar as we consider the present question, "unlawful taking" is most material in this
respect. 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, we can only conclude that under Article 308 of the Revised
Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or
consummated.

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the

offenders therein obtained possession over the stolen items, the effect of the felony has
been produced as there has been deprivation of property. The presumed inability of the
offenders to freely dispose of the stolen property does not negate the fact that the
owners have already been deprived of their right to possession upon the completion of
the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the
offender to freely dispose of the stolen property frustrates the theft — would introduce a
convenient defense for the accused which does not reflect any legislated intent,95 since
the Court would have carved a viable means for offenders to seek a mitigated penalty
under applied circumstances that do not admit of easy classification. It is difficult to
formulate definite standards as to when a stolen item is susceptible to free disposal by
the thief. Would this depend on the psychological belief of the offender at the time of the
commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the
size and weight of the property, the location of the property, the number and identity of
people present at the scene of the crime, the number and identity of people whom the
offender is expected to encounter upon fleeing with the stolen property, the manner in
which the stolen item had been housed or stored; and quite frankly, a whole lot more.
Even the fungibility or edibility of the stolen item would come into account, relevant as
that would be on whether such property is capable of free disposal at any stage, even
after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful
detail, the owner was indeed deprived of property by one who intended to produce such
deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft
were recognized, for therein, all of the acts of execution, including the taking, have been
completed. If the facts establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the attempted stage, as
not all of the acts of execution have been performed. But once all these acts have been
executed, the taking has been completed, causing the unlawful deprivation of property,
and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet

they do not align with the legislated framework of the crime of theft. The Revised Penal
Code provisions on theft have not been designed in such fashion as to accommodate
said rulings. Again, there is no language in Article 308 that expressly or impliedly allows
that the "free disposition of the items stolen" is in any way determinative of whether the
crime of theft has been produced. Diño itself did not rely on Philippine laws or
jurisprudence to bolster its conclusion, and the later Flores was ultimately content in
relying on Diño alone for legal support. These cases do not enjoy the weight of stare
decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision
which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated
theft. As petitioner has latched the success of his appeal on our acceptance of the Diño
and Flores rulings, his petition must be denied, for we decline to adopt said rulings in
our jurisdiction. That it has taken all these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does not detract from the correctness of
this conclusion. It will take considerable amendments to our Revised Penal Code in
order that frustrated theft may be recognized. Our deference to Viada yields to the
higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA