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deprive the lawful owner of the thing. The word take in the
Revised Penal Code in
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** Per Special Order No. 545, dated December 16, 2008, signed by Chief
Justice Reynato S. Puno, designating Associate Justice Minita V. ChicoNazario to
replace Associate Justice Renato C. Corona, who is on leave.
* EN BANC.
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subject incidents.
Criminal Law; Theft; The crime of theft is penalized under
Article 308 of the Revised Penal Code (RPC).The crime of theft
is penalized under Article 308 of the RPC. From that provision,
we have long recognized the following as the elements of theft: (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.
Electricity; While electricity is merely the medium through
which the telephone calls are carried, it is sufficiently analogous to
allow the courts to consider such calls as possessing similar
physical characteristics as electricity.Are international long
distance calls personal property? The assailed Decision did not
believe so, but I agree with the present Resolution that they are.
The Court now equates telephone calls to electrical energy. To be
clear, telephone calls are not exactly alike as pure electricity.
They are sound waves (created by the human voice) which are
carried by electrical currents to the recipient on the other line.
While electricity is merely the medium through which the
telephone calls are carried, it is sufficiently analogous to allow the
courts to consider such calls as possessing similar physical
characteristics as electricity.
Same; Property; Telecommunication Industry; Theft; Since
physically a telephone call is in the form of an electric signal, our
jurisprudence acknowledging that electricity is personal property
which may be stolen through theft is applicable.The assailed
Decision conceded that when a telephone call was made, the
human voice [is] converted into electronic impulses or electrical
current. As the Resolution now correctly points out, electricity or
electronic energy may be the subject of theft, as it is personal
property capable of appropriation. Since physically a telephone
call is in the form of an electric signal, our jurisprudence
acknowledging that electricity is personal property which may be
stolen through theft is applicable.
Same; Same; Same; Same; Just because the phone calls are
transmitted using the facilities and services of Philippine Long
Distance Telephone (PLDT), it does not follow that PLDT is the
owner of such calls.The legal paradigm that treats PLDT as
akin to a common carrier should alert against any notion that it is
the owner of the long distance overseas calls alleged as having
been stolen in the Amended Information. More precisely, it
merely
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accused, conspiring
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1 Rollo, p. 728.
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apparatus.
No person shall, for any purpose whatsoever, use or enjoy the
benefits of any device by means of which he may fraudulently
obtain any current of electricity or any telegraph or telephone
service; and the existence in any building premises of any such
device shall, in the absence of satisfactory explanation, be deemed
sufficient evidence of such use by the persons benefiting thereby.
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14 Rollo, p. 902.
15 Id., at pp. 781783; 832837; 872, 874877.
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the nature and cause of the charge against him, and thus
guaranteed of his rights under the Constitution.
ACCORDINGLY, the motion for reconsideration is
GRANTED. The assailed Decision dated February 27, 2006
is RECONSIDERED and SET ASIDE. The Decision of the
Court of Appeals in CAG.R. SP No. 68841 affirming the
Order issued by Judge Zeus C. Abrogar of the Regional
Trial Court of Makati City, Branch 150, which denied the
Motion to Quash (With Motion to Defer Arraignment) in
Criminal Case No. 992425 for theft, is AFFIRMED. The
case is remanded to the trial court and the Public
Prosecutor of Makati City is hereby DIRECTED to amend
the Amended Information to show that the
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I.
It is best to begin with an overview of the facts that
precede this case. Among many other services, PLDT
operates an International Gateway Facility (IGF),1 through
which pass phone calls originating from overseas to local
PLDT phones. However, there exists a method of routing
and completing international long distance calls called
International Simple Resale (ISR), which makes use of
International Private Leased Lines (IPL). Because IPL
lines may be linked to switching equipment connected to a
PLDT phone line, it becomes
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1 Other telecommunication companies authorized to operate an IGF
are Globe Telecommunications (Globe), Eastern Telecoms (ETPI), Digitel
Communications (Digitel) and Bayan Telecommunications Company
(Bayantel).
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International
Bureau
International
Simple
Resale,
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number,
personal
identification
number
and
other
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http://areaonline.com/phone/telworks.html.
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12 Id., at p. 273.
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abandoned movables.
Is it possible that PLDT somehow acquired ownership over
the phone calls by reason of law? No law vesting ownership
over the phone calls to PLDT or any other local telephone
service provider is in existence.
All these points demonstrate the strained reasoning
behind the claim that PLDT owns the international long
distance calls. Indeed, applying the traditional legal
paradigm
that
governs
the
regulation
of
telecommunications companies, it becomes even clearer
that PLDT cannot validly assert such ownership.
Telephone companies have
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14 See Article 712, Civil Code.
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Globe
Telecom,
Inc.
v.
National
Telecommunications
Commission, G.R. No. 143964, 26 July 2004, 435 SCRA 110, 121; citing K.
Middleton, R. Trager & B. Chamberlin, The Law of Public Communication
(5th ed., 2001), at p. 578; in turn citing 47 U.S.C Secs. 201, 202.
16 See Sec. 13(b), Public Service Act, as amended (1936).
17See H. Zuckman, R. CornRevere, R. Frieden, C. Kennedy, Modern
Communications Law (1999 ed.), at p. 911.
18 Id., at p. 912.
19 See also De Guzman v. Court of Appeals, 168 SCRA 612 (1988), So
understood, the concept of common carrier under Article 1732 [of the
Civil Code] may be seen to coincide neatly with the notion of public
service, under the Public Service Act (Commonwealth Act No. 1416, as
amended) which at least partially supplements the law on common
carriers set forth in the Civil Code.
20 See Article 1732, Civil Code.
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See
Globe
Telecom,
Inc.
v.
National
Telecommunications
Commission, G.R. No. 143964, 26 July 2004, 435 SCRA 110, 121, citing K.
Middleton, R. Trager & B. Chamberlin, The Law of Public Communication
(5th ed., 2001), at p. 578, in turn citing 47 U.S.C. Secs. 201, 202.
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