Qualified theft, A310 Revised Penal Code

Qualified theft – is the offense of theft qualified by grave of abuse of confidence resulting in a higher penalty.

1. Concept

Qualified theft – is the offense of theft qualified by grave of abuse of confidence resulting in a higher penalty.

2. Modes of commission

The following are the modes of committing the offense:

1) Taking of another’s personal property with intent to gain and without the use of violence, intimidation, or force upon persons or things, plus the theft is done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence.

a. Mode 1: Taking of personal property with grave abuse of confidence

Elements of qualified theft:

1) There was a taking of personal property;

2) The said property belongs to another;

3) The taking was done without the consent of the owner;

4) The taking was done with intent to gain;

5) The taking was accomplished without violence or intimidation against person, or force upon things; and

6) The taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence. (People v. Santos, G.R. No. 237982, October 14, 2020, Per Peralta, J.)

1) Element 1: Taking of personal property

To establish the element of taking, actual or constructive possession of personal property must be proven- first, by its owner or lawful possessor and second, the subsequent unlawful acquisition of thereof by the accused. In the case of Roque v. People, the Court citing an earlier case, noted that the crime of theft as defined by the RPC lays great stress on the first element, “which is the taking away, that is, getting possession, laying hold of the thing…without the consent of the owner.” Thus, when the delivery of a thing did not have the effect of transferring possession, it is regarded that possession remains with the owner and the act of disposing such thing without the latter’s consent constitutes the crime of theft. Conversely, when delivery to another was made with the intention of transferring ownership or possession, the subsequent disposition by the transferee does not constitute theft. “The crime of theft implies an invasion of possession; therefore, there can be no theft when the owner voluntarily parted with the possession of the thing. Indeed, a taking which is done with the consent or acquiescence of the owner of the property is not felonious.” (Imperial v. People, G.R. No. 230519, June 30, 2021, Per Gaerlan, J.)

2) Element 2: Said Property belongs to another

Reside v. People, G.R. No. 210318, July 28, 2020, Per Reyes, J. Jr., J.:

• First, the prosecution was able to establish that petitioner, as part of her duty as principal of TGWSI, received tuition fees and other school payments from students and failed to remit the same to the school. Second, the money taken by petitioner belongs to TGWSI. The Court, in Paramount Insurance Corp. v. Spouses Remondeulaz, clarified that there may be theft even if the accused has possession of the property; if he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft. Thus, the conversion of personal property in the case of an employee having material possession of the said property constitutes theft, whereas in the case of an agent to whom both material and juridical possession have been transferred, misappropriation of the same property constitutes estafa. Third, the absence of TGWSI’s consent was shown in its attempts to account for the missing money through a review of its books and to recover it from petitioner. Fourth, intent to gain on the part of the petitioner was likewise established. Intent to gain is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation.40 Here, petitioner admitted to the taking of the funds owing to TGWSI and even agreed to settle by signing a promissory note undertaking to pay De Dios. Fifth, no violence or intimidation against persons nor of force upon things was employed by petitioner in obtaining the funds. Sixth, the taking was clearly done with grave abuse of confidence. As principal of TGWSI, petitioner was authorized to collect school fees. Such position or relation of trust and confidence was aptly established to have been gravely abused when she failed to remit the entrusted amount of collection to TGWSI.

3) Element 3: Without the consent of the owner

The prosecution’s evidence proved, through the prosecution’s eyewitnesses, that upon the petitioner’s instruction, several pieces of wide flange steel beams had been delivered, twice in October 2001 and once in November 2001, along Marcos Highway and Mabini Street, Baguio City; the petitioner betrayed the trust and confidence reposed on him when he, as project manager, repeatedly took construction materials from the project site, without the authority and consent of Engr. Marigondon, the owner of the construction materials. (Zapanta v. People, G.R. No. 170863, March 20, 2013, Per Brion, J.)

4) Element 4: With intent to gain

That the offender has intent to gain is a specific element and thus should be proven. This is to rule out any other form of taking without intent to gain, such as intentionally or accidentally removing or relocating another’s property from one place to another. For instance, if a person incorrectly leaves their umbrella in a place not designated as deposit area for such items and thus another person such as a security guard takes such property to place it to the correct area, there is no intent to gain in such taking and thus would not constitute theft.

a) Presumption of intent to gain

[The] “intent to gain or animus lucrandi is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation. [Thus,] [a]ctual gain is irrelevant as the important consideration is the intent to gain.” (People v. Mejares, G.R. No. 225735, January 10, 2018, Per Leonen, J.)

NB: It should be noted that such a presumption is not conclusive, but only a rebuttable presumption (juris tantum).

b) Any benefit

The term “gain” is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed. Thus, the mere use of the thing which was taken without the owner’s consent constitutes gain. (People v. Bustinera, G.R. No. 148233, June 08, 2004, Per Carpio-Morales, J.)

People v. Mejares, G.R. No. 225735, January 10, 2018, Per Leonen, J.:

• In this case, it is clear from the established facts that it was accused-appellant who opened the drawer in the masters’ bedroom and took away the cash and valuables it contained. Therefore, the burden is on the defense to prove that intent to gain was absent despite accused-appellant’s actual taking of her employer’s valuables. It is precisely this burden that the defense failed to discharge.

• [A]ccused-appellant, taking advantage of her being a domestic helper of private complainant for approximately a year, committed the crime of qualified theft. If she honestly believed that her employer had met an accident and was genuinely worried for her, she could have easily sought the help of any of her co-workers in the household. When warned about the dugo-dugo gang, accused-appellant could have paused to re-assess the situation. She failed to do all these security measures with no convincing justification. Indeed, accused-appellant’s persistence to leave the condominium with the valuables and her refusal to let the security guard talk to her employer further belie her position.

• To make matters worse, accused-appellant was a domestic helper who had been working for the Spouses Gavino for at least one (1) year when she committed the crime. By this fact alone, the offense committed is qualified and warrants graver penalties, pursuant to Article 310 of the Revised Penal Code.

c) Return of stolen property, immaterial

[W]hen one takes the motor vehicle of another without the latter’s consent even if the motor vehicle is later returned, there is theft, there being intent to gain as the use of the thing unlawfully taken constitutes gain. (People v. Bustinera, G.R. No. 148233, June 08, 2004, Per Carpio-Morales, J.)

Villacorta v. Insurance Commission, G.R. No. L-54171, October 28, 1980, Per Teehankee, Acting C.J. (later Chief Justice):

• Assuming, despite the totally inadequate evidence, that the taking was “temporary” and for a “joy ride”, the Court sustains as the better view that which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure. Justice Ramon C. Aquino cites in his work Groizard who holds that the use of a thing constitutes gain and Cuello Calon who calls it “hurt de uso.”

d) Circumstantial evidence

[W]hen evidence of theft is circumstantial as in this case, proof as to motive, that is, intent to gain, is essential and cannot be merely inferred. “Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender.” (Imperial v. People, G.R. No. 230519, June 30, 2021, Per Gaerlan, J.)

5) Element 5: Accomplished without violence or intimidation against person, or force upon things

It goes without saying that theft to be committed should not be attended without any violence or intimidation against person or force upon things. Otherwise, if there is such an occurrence, the offense is no longer theft; rather, the offense that has been committed already constitutes robbery.

6) Element 6: Taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence

[W]hile grave abuse of trust and confidence per se does not produce the felony as an effect, it is a “circumstance which aggravates and qualifies the commission of the crime of theft”;30 hence, the imposition of a higher penalty is necessary. (People v. Mejares, G.R. No. 225735, January 10, 2018, Per Leonen, J.)

a) Qualifying circumstances

Theft is qualified when any of the following circumstances is present:

1) The theft is committed by a domestic servant;

2) The theft is committed with grave abuse of confidence;

3) The property stolen is either a motor vehicle, mail matter or large cattle;

4) The property stolen consists of coconuts taken from the premises of a plantation;

5) The property stolen is fish taken from a fishpond or fishery; and

6) The property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (People v. Bustinera, G.R. No. 148233, June 08, 2004, Per Carpio-Morales, J.)

People v. Santos, G.R. No. 237982, October 14, 2020, Per Peralta, J.:

• In the instant case, the prosecution was able to establish the presence of all the elements of qualified theft under Article 310 in relation to Article 308 of the RPC. Accused-appellant, as part of her duty as OIC-Property Accountant of Dasman Realty, admitted that she received the payments from Dasman Realty’s clients for the period September 2011 to May 2013 in the total amount of P1,029,893.33, thus, she had actual possession of the monies, yet failed to remit the same to Dasman Realty. As an employee tasked to merely collect payments from Dasman Realty’s clients, she did not have a right over the thing as she was merely entrusted to collect the cash collections in behalf of Dasman Realty. In fact, accused-appellant never asserted any such right over the collections, as she even admitted that upon receipt of the monies, it was her duty to remit the collections to the cashier.

• [I]t can readily be seen that accused-appellant’s testimonies were plagued with inconsistencies, which just showed her criminal intent to take the cash collections. Accused-appellant’s defenses, i.e., from alleging that she turned-over the payments to Macaldo, next to Engr. Dejon, to merely following instructions to issue acknowledgement receipts instead of official receipts, to window-dressing, are all self-serving because they were unsupported by evidence. Accused-appellant was the one tasked to collect the payments from Dasman Realty’s clients as in fact she did receive the cash payments as she herself admitted that all the initials in the subject official receipts and acknowledgment receipts are her own initials, yet, there was no proof that said amounts of monies she received were remitted to Dasman Realty. Likewise, the fact that the “taking” was accomplished without the use of violence or intimidation against persons, or force upon things was undisputed. Thus, based on the foregoing circumstances, intent to gain is apparent on the part of the accused-appellant. Intent to gain or animus lucrandi is an internal act which can be established through the overt acts of the offender, and is presumed from the proven unlawful taking.44 Actual gain is irrelevant as the important consideration is the intent to gain.45

• Furthermore, the prosecution was able to show that the taking was clearly done with grave abuse of confidence. As OlC-Property Accountant who was tasked, among others, to assist in the collection of the payments being paid by the unit owners and lots,46 accused-appellant made use of her position to obtain the payment collections due to Dasman Realty. From the nature of her functions, accused-appellant’s position entailed a high degree of confidence reposed by Dasman Realty as she had been granted access to funds collectible from clients. She would not have been able to take the money paid by clients if it were not for her position in Dasman Realty. Such relation of trust and confidence was amply established to have been gravely abused when she failed to remit the entrusted amount of collection to Dasman Realty.

Imperial v. People, G.R. No. 230519, June 30, 2021, Per Gaerlan, J.:

• Herein, the prosecution failed to establish the corpus delicti of the crime of theft.

• In this case, the Court notes that the evidence for the prosecution is largely circumstantial. Thus, it behooves upon the court to determine the sufficiency of the circumstances and whether the same “tend by inference to establish the fact” constituting the elements of the crime charged.

• The main witness for the prosecution, Lorilla affirmed that the purchase order for the missing Royal Cord was given to Bantillo and the item subsequently purchased was brought inside the NTC-MPC premises, not by [the Accused] but by Bantillo. [The Accused] did not acquire actual possession of the same. The parties admitted and [the Accused] affirmed that he directed Bantillo to place the Royal Cord in the Mazda pick-up, the company service vehicle, which the latter accomplished. At the point relevant to this controversy, records established that this vehicle was not used nor assigned only to [the Accused]. In short, [the Accused] did not have exclusive access to or control over the vehicle, as to render any item inside it within his constructive possession. Under these circumstances, the Court cannot exclude the possibility that some other person may have committed the alleged theft against the company. The rule in circumstantial evidence cases is that to produce conviction beyond reasonable doubt, the evidence offered by the prosecution must exclude the possibility that some other person committed the crime. Failure to do so is tantamount to reasonable doubt that warrants acquittal. In this case, the inference that the missing Royal Cord was taken by [the Accused] was based on the fact that he gained control and possession over the same, which was not proven. Clearly, the corpus delicti in the crime of theft was not proven and [the Accused] must be acquitted.

• The RTC and the CA blindly relied on the testimonies of the prosecution witnesses that Bantillo placed the missing Royal Cord on the passenger seat of the Mazda pick-up and that, thereafter, [the Accused] left the company premises on board the pick-up and later returned without the same Royal Cord. Both courts failed to consider that the prosecution also averred that per the security guard’s logbook, [the Accused] did not personally, but through one Ofilada, brought in one Royal Cord with a different specification than that purchased. Verily, other than the testimony of Bantillo, there is no other evidence showing that custody and responsibility over the missing cord were transferred to and acknowledged by [the Accused]. At no point, therefore, did [the Accused] had actual possession and had exclusive control over the missing royal cord immediately prior to its loss. As such, even with [the Accused]’s admissions of his instructions to Bantillo and Ofilada, the Court cannot discount the fact that some other person may have committed the theft.

• The fact that [the Accused] is the head of NTC-MPC’s maintenance department does not automatically mean constructive possession without proof of actual transfer of accountability or possession over the missing royal cord. If at all, [the Accused]’s position charges him of administrative, not criminal liability.

• Verily, without proof that [the Accused] acquired possession of the missing royal cord at any time, there is no taking. There can be no occasion in which [the Accused] can appropriate for himself the subject Royal Cord and for the crime of theft to occur.

• In the case at bar, the prosecution failed or did not even attempt to offer proof of such motive. On the contrary, [the Accused]’s submissions which were unrebutted by the respondent belie the existence of motive to commit the crime of qualified theft, i.e., the measly amount of the subject royal cord in comparison to [the Accused]’s salary and his three (3) untarnished years in service prior to the date of the alleged incident. Moreover, [the Accused]’s conduct after the incident is revealing. When confronted regarding the missing cord, Lorilla narrated that [the Accused] pointed her to the stock room and showed her a Royal Cord of different specification. Lorilla, however, did not react and, instead, immediately returned to her office. Had [the Accused] indeed took the cord, he would not have taken lengths in leading Lorilla to the stockroom; in the same way, if [the Accused] was indeed responsible for the missing cord, then why didn’t Lorilla corrected [the Accused] that what he had shown was not what they were looking for, so that the latter could rectify the situation? Questions likewise abound as to why [the Accused] would take a royal cord 14/3 and then supposedly replace it with a new royal cord 16/2.49 Why would a person, who intends to make a profit, replace an item he has taken?

b) Employee

Viray v. People, G.R. No. 205180, November 11, 2013, Per Velasco, Jr., J.:

• The RTC found that the taking committed by petitioner was not qualified by grave abuse of confidence, rather it was qualified by the use of force upon things. The trial court held that there was no confidence reposed by the private complainant on Viray that the latter could have abused. In fact, Vedua made sure that she locked the door before leaving. Hence, Viray was compelled to use force to gain entry into Vedua’s house thereby committing the crime of robbery, not theft.

• The CA, on the other hand, opined that the breaking of the screen and the door could not be appreciated to qualify petitioner’s crime to robbery as such use of force was not alleged in the Information. Rather, this breaking of the door, the CA added, is an indication of petitioner’s abuse of the confidence given by private complainant. The CA held that “[Viray] enjoyed the confidence of the private complainant, being the caretaker of the latter’s pets. He was given access to the outside premises of private complainant’s house which he gravely abused when he forced open the doors of the same house and stole the latter’s belongings.”35 Committing grave abuse of confidence in the taking of the properties, petitioner was found by the CA to be liable for qualified theft.

• This Court is inclined to agree with the CA that the taking committed by petitioner cannot be qualified by the breaking of the door, as it was not alleged in the Information. However, we disagree from its finding that the same breaking of the door constitutes the qualifying element of grave abuse of confidence to sentence petitioner Viray to suffer the penalty for qualified theft. Instead, We are one with the RTC that private complainant did not repose on Viray “confidence” that the latter could have abused to commit qualified theft.

• The very fact that petitioner “forced open” the main door and screen because he was denied access to private complainant’s house negates the presence of such confidence in him by private complainant. Without ready access to the interior of the house and the properties that were the subject of the taking, it cannot be said that private complaint had a “firm trust” on petitioner or that she “relied on his discretion”36 and that the same trust reposed on him facilitated Viray’s taking of the personal properties justifying his conviction of qualified theft.

• To warrant the conviction and, hence, imposition of the penalty for qualified theft, there must be an allegation in the information and proof that there existed between the offended party and the accused such high degree of confidence37 or that the stolen goods have been entrusted to the custody or vigilance of the accused.38 In other words, where the accused had never been vested physical access to,39 or material possession of, the stolen goods, it may not be said that he or she exploited such access or material possession thereby committing such grave abuse of confidence in taking the property. Thus, in People v. Maglaya,40 this Court refused to impose the penalty prescribed for qualified theft when the accused was not given material possession or access to the property:

• Although appellant had taken advantage of his position in committing the crime aforementioned,

• We do not believe he had acted with grave abuse of confidence and can be convicted of qualified theft, because his employer had never given him the possession of the machines involved in the present case or allowed him to take hold of them, and it does not appear that the former had any special confidence in him. Indeed, the delivery of the machines to the prospective customers was entrusted, not to appellant, but to another employee.

• Inasmuch as the aggregate value of the machines stolen by appellant herein is ₱13,390.00, the crime committed falls under Art. 308, in relation to the first subdivision of Art.309 of the Revised Penal Code, which prescribes the penalty of prisión mayor in its minimum and medium periods.1âwphi1 No modifying circumstance having attended the commission of the offense, said penalty should be meted out in its medium period, or from 7 years, 4 months and 1 day to 8 years and 8 months of prisión mayor. The penalty imposed in the decision appealed from is below this range. (Emphasis and underscoring supplied.)

• The allegation in the information that the offender is a laborer of the offended party does not by itself, without more, create the relation of confidence and intimacy required by law for the imposition of the penalty prescribed for qualified theft.41 Hence, the conclusion reached by the appellate court that petitioner committed qualified theft because he “enjoyed the confidence of the private complainant, being the caretaker of the latter’s pets” is without legal basis. The offended party’s very own admission that the accused was never allowed to enter the house42 where the stolen properties were kept refutes the existence of the high degree of confidence that the offender could have allegedly abused by “forcing open the doors of the same house.”43

• Without the circumstance of a grave abuse of confidence and considering that the use of force in breaking the door was not alleged in the Information, petitioner can only be held accountable for the crime of simple theft under Art. 308 in relation to Art. 309 of the RPC.

3. Things to note

The following are some additional things to note about this offense.

a. Common provisions

This offense shares common provisions with other offenses under Title X of the Revised Penal Code – Crimes Against Property. See: Crimes Against Property

b. History of animo lucrandi

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,” a definition similar to that by Paulus that a thief “handles (touches, moves) the property of another.” 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.” 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. (Valenzuela v. People, En Banc, G.R. No. 160188, June 21, 2007, Per Tinga, J.)

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.” However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking or an intent to permanently deprive the owner of the stolen property; 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. 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. (Ibid.)

c. Corpus delicti

Corpus delicti, in its legal sense, refers to the fact of the commission of the crime charged or to the body or substance of the crime. In the crime of theft, corpus delicti has two elements: 1) that personal property is lost by its owner, and 2) that it was lost through felonious taking. (Imperial v. People, G.R. No. 230519, June 30, 2021, Per Gaerlan, J.)

d. Public crime

Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. (Tan v. People, G.R. No. 134298, August 26, 1999, Per Pardo, J.)

e. Requires a victim

Tan v. People, G.R. No. 134298, August 26, 1999, Per Pardo, J.:

• Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, crime of robbery or theft has been committed.

• In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking. In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti.

3A. Procedural

The following are some procedural matters.

a. No frustrated theft, only attempted or consummated

The 2007 case of Valenzuela v. People finally resolved the question on whether there was frustrated theft as it was the main issue raised on appeal by the accused.

Valenzuela v. People, En Banc, G.R. No. 160188, June 21, 2007, Per Tinga, J.:

• 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.

• 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.

• We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft.

4. Distinguish from other offenses

This offense is distinguished from other offenses or crimes below.

a. Qualified theft vs theft

Factors	Qualified theft	Theft
Offended Party	Any person	Any person
Offender	Any person	Any person
Overt Acts	Offender unlawfully takes personal property belonging to another with intent to gain, and without violence against or intimidation of any person, nor force upon things, and done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence	Offender unlawfully takes personal property belonging to another with intent to gain, and without violence against or intimidation of any person, nor force upon things

The main difference between the two is on: grave abuse of confidence. In qualified theft, there is an unlawful taking of another’s personal property with intent to gain and without violence against or intimidation of any person nor force upon things, plus the theft was done under any of the circumstances enumerated in Article 310 of the RPC, i.e. with grave abuse of confidence. On the other hand, in theft, the elements are the same except that there is no element constituting grave abuse of confidence.

See related:

• Theft, A308-309 Revised Penal Code

b. Qualified theft A310, RPC vs Estafa by misappropriation/conversion Article 315(1)(b), RPC

Factors	Qualified theft, A 310 RPC	Estafa by misappropriation / conversion, A315(1)(b) RPC
Offended Party	Any person	Any person
Offender	Any person	Any person
Overt acts	Offender unlawfully takes personal property belonging to another with intent to gain, and without violence against or intimidation of any person, nor force upon things, and done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence	Offender receives the property and converts it to his/her own use or benefit. Offender’ receives money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same; thereafter, offender misappropriates or converts the money or property received, or denies receipt of the money or property, resulting in the prejudice of another; and offender fails to return such money or property received after demand by the offended party that the offender return.
Comments	Generally, the thing stolen is taken – however, there may be cases were the offender may already be in possession thereof.	Offender receives the thing misappropriated or converted.

[T]heft is committed by any person who, with intent to gain, but without violence against, or intimidation of persons nor force upon things, shall take the personal property of another without the latter’s consent.16 If committed with grave abuse of confidence, the crime of theft becomes qualified. (Matrido v. People, G.R. No. 179061, July 13, 2009, Per Carpio Morales, J.)

The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa. (Santos v. People, G.R. No. 77429, January 29, 1990, Per Cruz, J.)

In Ringor v. People, the Court affirmed the CA’s Decision holding Ringor guilty of qualified theft, contrary to the RTC’s Decision finding her guilty of estafa, the crime charged in the information. We held that as Ringor merely had physical possession of the merchandise, she can only be held liable for qualified theft despite proof of her misappropriation of the merchandise. Similarly, in the case of Santos v. People, the Court also found petitioner Santos’ conviction for theft correct under an information naming the crime charged as estafa. And, in People v. Euraba, the Court found the CA’s affirmation of the guilty verdict for qualified theft against the accused-appellant in order since the factual allegations in the information sufficiently established all the elements of qualified theft and such elements were duly proven by the prosecution. (Reside v. People citing Ringor v. People, G.R. No. 198904, December 11, 2013)

1) Kinds of possession: physical/material vs juridical

Physical/material possession refers to de facto possession or actual possession.

If there is physical/material possession and there is misappropriation, then the offense committed is theft, qualified or otherwise.

Juridical possession refers to a possession which gives the transferee a right over the thing transferred and this, he may set up even against the owner. (Reside v. People, G.R. No. 210318, July 28, 2020, Per Reyes, J. Jr., J.)

If there is juridical possession and there is misappropriation, then the offense committed is estafa by misappropriation or conversion.

2) Receipt by an employee vs an agent

There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain the money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault[.] (Guzman v. CA, En Banc, G.R. No. L-9572, July 31, 1956, Per Reyes, J.B.L., J.)

Therefore, as it now stands, a sum of money received by an employee in behalf of an employer is considered to be only in the material possession of the employee. Notably, such material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer. As long as the juridical possession of the thing appropriated did not pass to the employee, the offense committed is theft, qualified or otherwise. (Guzman v. CA [1956], supra.)

The foregoing principle is illustrated in Chua-Burce v. Court of Appeals where the manager of a bank located in Calapan, Mindoro discovered a shortage in their cash-in-vault amounting to P150,000.00. After due investigation, a criminal complaint was filed against the person primarily responsible, i.e., the bank’s Cash Custodian. The RTC and the CA both found the cash custodian guilty of estafa under paragraph 1(b), Article 315 of the RPC. This Court, however, acquitted the accused ratiocinating that, being a mere cash custodian, the latter had no juridical possession over the missing funds and, thus, cannot be convicted of estafa. (Tan v. People [2020], supra., citing Chua-Burce v. Court of Appeals, G.R. No. 109595. April 27, 2000, Per Quisumbing, J.)

Matrido v. People, G.R. No. 179061, July 13, 2009, Per Carpio Morales, J.:

• [Prosecution; Information] That on or about the 10th day of June 1999, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then a Credit and Collection Assistant employed by complainant, EMPIRE EAST LAND HOLDINGS, INC., herein represented by [L.N.] Cabuloy, and as such had access to the payments made by complainant’s clients, with grave abuse of confidence, intent of gain and without the knowledge and consent of the said complainant company, did then and there willfully, unlawfully and feloniously take, steal and carry away the amount of P18,000.00 received from [A.] Dela Torre, a buyer of a house and lot being marketed by complainant company, to the damage and prejudice of the said complainant in the aforementioned amount of P18,000.00.

• [The Accused] posits that despite her indictment for qualified theft, the prosecution was trying to prove estafa during trial, thus violating her right to be informed of the nature and cause of the accusation against her.

• As alleged in the Information, [the Accused] took, intending to gain therefrom and without the use of force upon things or violence against or intimidation of persons, a personal property consisting of money in the amount P18,000 belonging to private complainant, without its knowledge and consent, thereby gravely abusing the confidence reposed on her as credit and collection assistant who had access to payments from private complainant’s clients, specifically from one [A.] Dela Torre.

• The taking was also clearly done with grave abuse of confidence. As a credit and collection assistant of private complainant [the Company], [the Accused] made use of her position to obtain the amount due to private complainant. As gathered from the nature of her functions, her position entailed a high degree of confidence reposed by private complainant as she had been granted access to funds collectible from clients. Such relation of trust and confidence was amply established to have been gravely abused when she failed to remit the entrusted amount of collection to private complainant.

• The appellate court correctly explained that conversion of personal property in the case of an employee having material possession of the said property constitutes theft, whereas in the case of an agent to whom both material and juridical possession have been transferred, misappropriation of the same property constitutes estafa. Notably, [The Accused]’s belated argument that she was not an employee but an agent of private complainant grants her no respite in view of her stipulation during pre-trial and her admission at the witness stand of the fact of employment. [The Accused]’s reliance on estafa cases involving factual antecedents of agency transactions is thus misplaced.

That [the Accused] did not have juridical possession over the amount or, in other words, she did not have a right over the thing which she may set up even against private complainant is clear. In fact, [the Accused] never asserted any such right, hence, juridical possession was lodged with private complainant and, therefore, estafa was not committed.

• [The Accused]’s view that there could be no element of taking since private complainant had no actual possession of the money fails. The argument proceeds from the flawed premise that there could be no theft if the accused has possession of the property. The taking away of the thing physically from the offended party is not elemental, as qualified theft may be committed when the personal property is in the lawful possession of the accused prior to the commission of the alleged felony.

• A sum of money received by an employee in behalf of an employer is considered to be only in the material possession of the employee. The material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer. So long as the juridical possession of the thing appropriated did not pass to the employee-perpetrator, the offense committed remains to be theft, qualified or otherwise.

See related:

• Anti-Fencing Law of 1979: Explainer

c. Qualified theft vs Carnapping

Factors	Qualified Theft	Carnapping
Offended Party	Any person	Any person
Offender	Any person	Any person
Overt Acts	Offender unlawfully takes personal property belonging to another with intent to gain, and without violence against or intimidation of any person, nor force upon things, and done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence
Other Comments

People v. Bustinera, G.R. No. 148233, June 08, 2004, Per Carpio-Morales, J.:

• [S]ince [the Accused] is being accused of the unlawful taking of a Daewoo sedan, it is the anti-carnapping law and not the provisions of qualified theft which would apply as the said motor vehicle does not fall within the exceptions mentioned in the anti-carnapping law.

• The designation in the information of the offense committed by [the Accused] as one for qualified theft notwithstanding, [the Accused] may still be convicted of the crime of carnapping. For while it is necessary that the statutory designation be stated in the information, a mistake in the caption of an indictment in designating the correct name of the offense is not a fatal defect as it is not the designation that is controlling but the facts alleged in the information which determines the real nature of the crime.

• In the case at bar, the information alleges that [the Accused], with intent to gain, took the taxi owned by Cipriano without the latter’s consent. Thus, the indictment alleges every element of the crime of carnapping,46 and the prosecution proved the same.

See related:

• Anti-Carnapping Act: Explainer