Puno (C.J.

, Chairperson), Carpio, ChicoNazario** and

LeonardoDeCastro,JJ.,concur.
Petitiongranted,judgmentandamendedjudgmentreversedand
setaside.
Note.Technicality and procedural imperfection should never
be used to defeat the substantive rights of the other party.
(CompositeEnterprises,Inc.vs.Caparoso,529SCRA470[2007])
o0o

G.R.No.155076.January13,2009.*

LUIS MARCOS P. LAUREL, petitioner, vs. HON. ZEUS C.

ABROGAR, Presiding Judge of the Regional Trial Court, Makati
City,Branch150,PEOPLEOFTHEPHILIPPINES&PHILIPPINE
LONGDISTANCETELEPHONECOMPANY,respondents.

CriminalLawTheftElementsoftheft.The elements of theft under

Article 308 of the Revised Penal Code are as follows: (1) that there be
taking of personal property (2) that said property belongs to another (3)
that the taking be done with intent to gain (4) that the taking be done
without the consent of the owner and (5) that the taking be accomplished
withouttheuseofviolenceagainstorintimidationofpersonsorforceupon
things.
Same Same Property The only requirement for a personal property
to be the object of theft under the Penal Code is that it be capable of
appropriation.The only requirement for a personal property to be the
objectoftheftunderthepenalcodeisthatitbecapableofappropriation.It
neednotbecapableofasportation,whichisdefinedascarryingaway.
Jurisprudenceissettledthattotakeunderthetheftprovisionofthepenal
codedoesnotrequireasportationorcarryingaway.Toappropriatemeansto
deprivethelawfulownerofthething.ThewordtakeintheRevisedPenal
Codein
_______________

**PerSpecialOrderNo.545,datedDecember16,2008,signedbyChiefJusticeReynato
S. Puno, designating Associate Justice Minita V. ChicoNazario to replace Associate Justice
RenatoC.Corona,whoisonleave.
*ENBANC.

42

cludesanyactintendedtotransferpossessionwhich,asheldintheassailed
Decision,maybecommittedthroughtheuseoftheoffendersownhands,as
well as any mechanical device, such as an access device or card as in the
instantcase.Thisincludescontrollingthedestinationofthepropertystolen
todeprivetheowneroftheproperty,suchastheuseofametertampering,
as held in Natividad v. Court of Appeals, 1 SCRA 380 (1961), use of a
device to fraudulently obtain gas, as held in United States v. Tambunting,
andtheuseofajumpertodivertelectricity,asheldinthecasesofUnited
Statesv.Genato,UnitedStatesv.Carlos,andUnitedStatesv.Menagas,11
N.E.2d403(1937).
SameSameTheactofconductingInternationalSimpleResale(ISR)
operations by illegally connecting various equipment or apparatus to
private respondent Philippine Long Distance Telephones (PLDTs)
telephone system, through which petitioner is able to resell or reroute
internationallongdistancecallsusingrespondentPhilippineLongDistance
Telephones (PLDTs) facilities constitutes all three acts of subtraction
mentioned above.The acts of subtraction include: (a) tampering with
any wire, meter, or other apparatus installed or used for generating,
containing, conducting, or measuring electricity, telegraph or telephone
service(b)tappingorotherwisewrongfullydeflectingortakinganyelectric
currentfromsuchwire,meter,orotherapparatusand(c)usingorenjoying
thebenefitsofanydevicebymeansofwhichonemayfraudulentlyobtain
anycurrentofelectricityoranytelegraphortelephoneservice.Intheinstant
case, the act of conducting ISR operations by illegally connecting various
equipment or apparatus to private respondent PLDTs telephone system,
through which petitioner is able to resell or reroute international long
distancecallsusingrespondentPLDTsfacilitiesconstitutesallthreeactsof
subtractionmentionedabove.
Same Same Telecommunication Industry Property The business of
providing telecommunication or telephone service is likewise personal
property which can be the object of theft under Article 308 of the Revised
Penal Code.The business of providing telecommunication or telephone
serviceislikewisepersonalpropertywhichcanbetheobjectoftheftunder
Article308oftheRevisedPenalCode.Businessmaybeappropriatedunder
Section2ofActNo.3952(BulkSalesLaw),hence,couldbeobjectoftheft.
Civil Law Property Interest in business was declared to be personal
property since it is capable of appropriation and not included in the
enumeration of real properties.Interest in business was not specifically
enumeratedaspersonalpropertyintheCivilCodeinforceatthetimethe

above decision was rendered. Yet, interest in business was declared to be

personalproperty
43

sinceitiscapableofappropriationandnotincludedintheenumerationof
realproperties.Article414oftheCivilCodeprovidesthatallthingswhich
areormaybetheobjectofappropriationareconsideredeitherrealproperty
or personal property. Business is likewise not enumerated as personal
propertyundertheCivilCode.Justlikeinterestinbusiness,however,itmay
be appropriated. Following the ruling in Strochecker v. Ramirez, 44 Phil.
933(1922),businessshouldalsobeclassifiedaspersonalproperty.Sinceit
isnotincludedintheexclusiveenumerationofrealpropertiesunderArticle
415,itisthereforepersonalproperty.
SameSameElectricityElectricityispersonalpropertyunderArticle
416(3) of the Civil Code, which enumerates forces of nature which are
brought under control by science.It was conceded that in making the
international phone calls, the human voice is converted into electrical
impulses or electric current which are transmitted to the party called. A
telephonecall,therefore,iselectricalenergy.Itwasalsoheldintheassailed
Decision that intangible property such as electrical energy is capable of
appropriation because it may be taken and carried away. Electricity is
personalpropertyunderArticle416(3)oftheCivilCode,whichenumerates
forcesofnaturewhicharebroughtundercontrolbyscience.
Same Same Telecommunication Industry It is the use of these
telecommunications facilities without the consent of Philippine Long
DistanceTelephone(PLDT)thatconstitutesthecrimeoftheft,whichisthe
unlawful taking of the telephone services and business.While it may be
conceded that international long distance calls, the matter alleged to be
stolenintheinstantcase,taketheformofelectricalenergy,itcannotbesaid
that such international long distance calls were personal properties
belongingtoPLDTsincethelattercouldnothaveacquiredownershipover
such calls. PLDT merely encodes, augments, enhances, decodes and
transmits said calls using its complex communications infrastructure and
facilities. PLDT not being the owner of said telephone calls, then it could
notvalidlyclaimthatsuchtelephonecallsweretakenwithoutitsconsent.It
is the use of these communications facilities without the consent of PLDT
that constitutes the crime of theft, which is the unlawful taking of the
telephoneservicesandbusiness.
Same Same Same The business of providing telecommunication and the
telephone service are personal property under Article 308 of the Revised
PenalCode(RPC),andtheactofengaginginInternationalSimpleResale
(ISR)isanactofsubtractionpenalizedundersaidarticle.Thebusiness
of providing telecommunication and the telephone service are personal
property under Article 308 of the Revised Penal Code, and the act of
engaginginISR
44

is an act of subtraction penalized under said article. However, the

Amended Information describes the thing taken as, international long
distancecalls,andonlylatermentionsstealingthebusinessfromPLDT
as the manner by which the gain was derived by the accused. In order to
correctthisinaccuracyofdescription,thiscasemustberemandedtothetrial
court and the prosecution directed to amend the Amended Information, to
clearly state that the property subject of the theft are the services and
business of respondent PLDT. Parenthetically, this amendment is not
necessitatedbyamistakeinchargingtheproperoffense,whichwouldhave
calledforthedismissaloftheinformationunderRule110,Section14and
Rule 119, Section 19 of the Revised Rules on Criminal Procedure. To be
sure, the crime is properly designated as one of theft. The purpose of the
amendment is simply to ensure that the accused is fully and sufficiently
apprised of the nature and cause of the charge against him, and thus
guaranteedofhisrightsundertheConstitution.
CORONA,J.,SeparateOpinion:
Civil Law Property Telecommunication Industry While telephone
callstaketheformofelectricalenergy,itcannotbesaidthatsuchtelephone
calls were personal properties belonging to Philippine Long Distance
Telephone(PLDT)sincethelattercouldnothaveacquiredownershipover
such calls.The question of whether PLDT creates the phone calls or
merely encodes and transmits them is a question of fact that can be
answered by science. I agree with Justice Consuelo YnaresSantiago that,
while telephone calls take the form of electrical energy, it cannot be said
that such [telephone] calls were personal properties belonging to PLDT
since the latter could not have acquired ownership over such calls. PLDT
merelyencodes,augments,enhances,decodesandtransmitssaidcallsusing
itscomplexinfrastructureandfacilites.
TINGA,J.,ConcurringOpinion:
CivilLawTelecommunicationIndustryCriminalLawTheftThecoursing
oflongdistancecallsthroughInternationalSimpleResale(ISR)isnotper
seillegal.The coursing of long distance calls through ISR is not per se
illegal. For example, the Federal Communications Commission of the
United States is authorized by statute to approve longdistance calling
through ISR for calls made to certain countries, as it has done so with
nations such as Australia, France and Japan. However, as indicated by the
Officeof
45

the Solicitor Generals support for the subject prosecution, there was no
authorityyetforthepracticeduringthetimeofthesubjectincidents.
CriminalLawTheftThecrimeoftheftispenalizedunderArticle308
of the Revised Penal Code (RPC).The crime of theft is penalized under
Article308oftheRPC.Fromthatprovision,wehavelongrecognizedthe
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

donewithintenttogain(4)thatthetakingbedonewithouttheconsentof
the owner and (5) that the taking be accomplished without the use of
violenceagainstorintimidationofpersonsorforceuponthings.
Electricity While electricity is merely the medium through which the
telephonecallsarecarried,itissufficientlyanalogoustoallowthecourtsto
consider such calls as possessing similar physical characteristics as
electricity.Areinternationallongdistancecallspersonalproperty?The
assailedDecisiondidnotbelieveso,butIagreewiththepresentResolution
thattheyare.TheCourtnowequatestelephonecallstoelectricalenergy.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
physicalcharacteristicsaselectricity.
SamePropertyTelecommunicationIndustryTheftSincephysicallya
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
impulsesorelectricalcurrent.AstheResolutionnowcorrectlypointsout,
electricityorelectronicenergymaybethesubjectoftheft,asitispersonal
propertycapableofappropriation.Sincephysicallyatelephonecallisinthe
formofanelectricsignal,ourjurisprudenceacknowledgingthatelectricity
ispersonalpropertywhichmaybestolenthroughtheftisapplicable.
Same Same Same Same Just because the phone calls are transmitted
using the facilities and services of Philippine Long Distance Telephone
(PLDT),itdoesnotfollowthatPLDTistheownerofsuchcalls.Thelegal
paradigmthattreatsPLDTasakintoacommoncarriershouldalertagainst
anynotionthatitistheownerofthelongdistanceoverseascallsalleged
as having been stolen in the Amended Information. More precisely, it
merely
46

transmitsthesecalls,ownedbyanother,totheintendedrecipient.Applying
thecommoncarrierparadigm,whenapublictransportsystemiscontracted
to transport goods or persons to a destination, the transport company does
notacquireownershipoversuchgoodsorsuchpersons,eventhoughitisin
custodyofthesameforthedurationofthetrip.Justbecausethephonecalls
aretransmittedusingthefacilitiesandservicesofPLDT,itdoesnotfollow
thatPLDTistheownerofsuchcalls.

MOTIONFORRECONSIDERATIONofadecisionoftheSupreme
Court.
ThefactsarestatedintheresolutionoftheCourt.
Salonga,Hernandez&Mendozaforpetitioner.

 Angara, Abello, Concepcion, Regala and Cruz and Kapunan,

Tamano,Villodolid&AssociatesforrespondentPLDT.
RESOLUTION
YNARESSANTIAGO,J.:
On February 27, 2006, this Courts First Division rendered
judgmentinthiscaseasfollows:
INLIGHTOFALLTHEFOREGOING,thepetitionisGRANTED.
The assailed Orders of the Regional Trial Court and the Decision of the
Court of Appeals are REVERSED and SET ASIDE. The Regional Trial
Court is directed to issue an order granting the motion of the petitioner to
quashtheAmendedInformation.
SOORDERED.1

Bywayofbriefbackground,petitionerisoneoftheaccusedin
Criminal Case No. 992425, filed with the Regional Trial Court of
Makati City, Branch 150. The Amended Information charged the
accused with theft under Article 308 of the Revised Penal Code,
committedasfollows:
OnoraboutSeptember1019,1999,orpriortheretoinMakatiCity,and
withinthejurisdictionofthisHonorableCourt,theaccused,conspiring
_______________
1Rollo,p.728.
47

andconfederatingtogetherandallofthemmutuallyhelpingandaidingone
another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfullyandfeloniouslytake,stealandusetheinternationallongdistance
callsbelongingtoPLDTbyconductingInternationalSimpleResale(ISR),
which is a method of routing and completing international long distance
callsusinglines,cables,antenae,and/orairwavefrequencywhichconnect
directlytothelocalordomesticexchangefacilitiesofthecountrywherethe
callisdestined,effectivelystealingthisbusinessfromPLDTwhileusingits
facilities in the estimated amount of P20,370,651.92 to the damage and
prejudiceofPLDT,inthesaidamount.
CONTRARYTOLAW.2

Petitioner filed a Motion to Quash (with Motion to Defer

Arraignment), on the ground that the factual allegations in the
AmendedInformationdonotconstitutethefelonyoftheft.Thetrial
courtdeniedtheMotiontoQuashtheAmendedInformation,aswell
aspetitionerssubsequentMotionforReconsideration.

Petitioners special civil action for certiorari was dismissed by

the Court of Appeals. Thus, petitioner filed the instant petition for
reviewwiththisCourt.
IntheabovequotedDecision,thisCourtheldthattheAmended
Informationdoesnotcontainmaterialallegationschargingpetitioner
withtheftofpersonalpropertysinceinternationallongdistancecalls
and the business of providing telecommunication or telephone
servicesarenotpersonalpropertiesunderArticle308oftheRevised
PenalCode.
Respondent Philippine Long Distance Telephone Company
(PLDT)filedaMotionforReconsiderationwithMotiontoReferthe
CasetotheSupremeCourtEnBanc.ItmaintainsthattheAmended
Informationchargingpetitionerwiththeftisvalidandsufficientthat
itstatesthenamesofalltheaccusedwhowerespecificallycharged
withthecrimeoftheftofPLDTsinternationalcallsandbusinessof
providing telecommunication or telephone service on or about
September 10 to 19, 1999 in Makati City by conducting ISR or
Interna
_______________
2Id.,atpp.5758.
48

tional Simple Resale that it identifies the international calls and

business of providing telecommunication or telephone service of
PLDTasthepersonalpropertieswhichwereunlawfullytakenbythe
accused and that it satisfies the test of sufficiency as it enabled a
person of common understanding to know the charge against him
andthecourttorenderjudgmentproperly.
PLDT further insists that the Revised Penal Code should be
interpretedinthecontextoftheCivilCodesdefinitionofrealand
personalproperty.TheenumerationofrealpropertiesinArticle415
oftheCivilCodeisexclusivesuchthatallthosenotincludedtherein
arepersonalproperties.SinceArticle308oftheRevisedPenalCode
usedthewordspersonalpropertywithoutqualification,itfollows
that all personal properties as understood in the context of the
Civil Code, may be the subject of theft under Article 308 of the
Revised Penal Code. PLDT alleges that the international calls and
business of providing telecommunication or telephone service are
personal properties capable of appropriation and can be objects of
theft.
PLDT also argues that taking in relation to theft under the
RevisedPenalCodedoesnotrequireasportation,thesolerequisite
being that the object should be capable of appropriation. The
elementoftakingreferredtoinArticle308oftheRevisedPenal
Code means the act of depriving another of the possession and

dominionofamovablecoupledwiththeintention,atthetimeofthe
taking,ofwithholdingitwiththecharacterofpermanency.There
must be intent to appropriate, which means to deprive the lawful
owner of the thing. Thus, the term personal properties under
Article308oftheRevisedPenalCodeisnotlimitedtoonlypersonal
properties which are susceptible of being severed from a mass or
largerquantityandofbeingtransportedfromplacetoplace.
PLDT likewise alleges that as early as the 1930s, international
telephone calls were in existence hence, there is no basis for this
CourtsfindingthattheLegislaturecouldnothavecontemplatedthe
theft of international telephone calls and the unlawful transmission
androutingofelectronicvoicesignalsorimpulsesemanatingfrom
such calls by unlawfully tampering with the telephone device as
withinthecoverageoftheRevisedPenalCode.
49

According to respondent, the international phone calls which

areelectriccurrentsorsetsofelectricimpulsestransmittedthrough
a medium, and carry a pattern representing the human voice to a
receiver, are personal properties which may be subject of theft.
Article 416(3) of the Civil Code deems forces of nature (which
includeselectricity)whicharebroughtunderthecontrolbyscience,
arepersonalproperty.
InhisCommenttoPLDTsmotionforreconsideration,petitioner
Laurelclaimsthatatelephonecallisaconversationonthephoneor
a communication carried out using the telephone. It is not
synonymous to electric current or impulses. Hence, it may not be
considered as personal property susceptible of appropriation.
Petitionerclaimsthattheanalogybetweengeneratedelectricityand
telephone calls is misplaced. PLDT does not produce or generate
telephone calls. It only provides the facilities or services for the
transmission and switching of the calls. He also insists that
business is not personal property. It is not the business that is
protectedbuttherighttocarryonabusiness.Thisrightiswhatis
considered as property. Since the services of PLDT cannot be
consideredasproperty,thesamemaynotbesubjectoftheft.
The Office of the Solicitor General (OSG) agrees with
respondentPLDTthatinternationalphonecallsandthebusinessor
serviceofprovidinginternationalphonecallsaresubsumedinthe
enumeration and definition of personal property under the Civil
Codehence,maybepropersubjectsoftheft.Itnotedthatthecases
of United States v. Genato,3 United States v. Carlos4 and United
States v. Tambunting,5 which recognized intangible properties like
gas and electricity as personal properties, are deemed incorporated
inourpenallaws.Moreover,thetheftprovisionintheRevisedPenal
Code was deliberately couched in broad terms precisely to be all

encompassingandembracingevensuchscenariothatcouldnothave
beeneasilyanticipated.
_______________
315Phil.170(1910).
421Phil.553(1911).
541Phil.364(1921).
50

AccordingtotheOSG,prosecutionunderRepublicAct(RA)No.
8484ortheAccessDeviceRegulationsActof1998andRA8792or
theElectronicCommerceActof2000doesnotprecludeprosecution
under the Revised Penal Code for the crime of theft. The latter
embracesunauthorizedappropriationoruseofPLDTsinternational
calls, service and business, for personal profit or gain, to the
prejudiceofPLDTasownerthereof.Ontheotherhand,thespecial
laws punish the surreptitious and advanced technical means
employedtoillegallyobtainthesubjectserviceandbusiness.Even
assuming that the correct indictment should have been under RA
8484,thequashaloftheinformationwouldstillnotbeproper.The
charge of theft as alleged in the Information should be taken in
relation to RA 8484 because it is the elements, and not the
designationofthecrime,thatcontrol.
Consideringthegravityandcomplexityofthenovelquestionsof
lawinvolvedinthiscase,theSpecialFirstDivisionresolvedtorefer
thesametotheBanc.
We resolve to grant the Motion for Reconsideration but remand
the case to the trial court for proper clarification of the Amended
Information.
Article308oftheRevisedPenalCodeprovides:
Art.308.Whoareliablefortheft.Theftiscommittedbyanyperson
who, with intent to gain but without violence against, or intimidation of
persons nor force upon things, shall take personal property of another
withoutthelattersconsent.

The elements of theft under Article 308 of the Revised Penal

Codeareasfollows:(1)thattherebetakingofpersonalproperty(2)
that said property belongs to another (3) that the taking be done
withintenttogain(4)thatthetakingbedonewithouttheconsentof
theownerand(5)thatthetakingbeaccomplishedwithouttheuse
ofviolenceagainstorintimidationofpersonsorforceuponthings.
Prior to the passage of the Revised Penal Code on December 8,
1930, the definition of the term personal property in the penal
code provision on theft had been established in Philippine
jurisprudence.ThisCourt,inUnitedStatesv.Genato,UnitedStates

v. Carlos, and United States v. Tambunting, consistently ruled that

anypersonal
51

property,tangibleorintangible,corporealorincorporeal,capableof
appropriationcanbetheobjectoftheft.
Moreover, since the passage of the Revised Penal Code on
December8,1930,thetermpersonalpropertyhashadagenerally
accepteddefinitionincivillaw.InArticle335oftheCivilCodeof
Spain, personal property is defined as anything susceptible of
appropriation and not included in the foregoing chapter (not real
property).Thus,thetermpersonalpropertyintheRevisedPenal
Code should be interpreted in the context of the Civil Code
provisionsinaccordancewiththeruleonstatutoryconstructionthat
wherewordshavebeenlongusedinatechnicalsenseandhavebeen
judicially construed to have a certain meaning, and have been
adopted by the legislature as having a certain meaning prior to a
particular statute, in which they are used, the words used in such
statute should be construed according to the sense in which they
havebeenpreviouslyused.6Infact,thisCourtusedtheCivilCode
definition of personal property in interpreting the theft provision
ofthepenalcodeinUnitedStatesv.Carlos.
CognizantofthedefinitiongivenbyjurisprudenceandtheCivil
Code of Spain to the term personal property at the time the old
Penal Code was being revised, still the legislature did not limit or
qualify the definition of personal property in the Revised Penal
Code.Neitherdiditprovidearestrictivedefinitionoranexclusive
enumeration of personal property in the Revised Penal Code,
thereby showing its intent to retain for the term an extensive and
unqualified interpretation. Consequently, any property which is not
includedintheenumerationofrealpropertiesundertheCivilCode
and capable of appropriation can be the subject of theft under the
RevisedPenalCode.
Theonlyrequirementforapersonalpropertytobetheobjectof
theftunderthePenalCodeisthatitbecapableofappropriation.It
neednotbecapableofasportation,whichisdefinedascarrying
_______________
6Krivenkov.RegisterofDeeds,79Phil.461(1947).
52

away.7 Jurisprudence is settled that to take under the theft

provisionofthepenalcodedoesnotrequireasportationorcarrying
away.8
Toappropriatemeanstodeprivethelawfulownerofthething.9

Toappropriatemeanstodeprivethelawfulownerofthething.9
The word take in the Revised Penal Code includes any act
intended to transfer possession which, as held in the assailed
Decision,maybecommittedthroughtheuseoftheoffendersown
hands,aswellasanymechanicaldevice,suchasanaccessdeviceor
cardasintheinstantcase.Thisincludescontrollingthedestination
ofthepropertystolentodeprivetheowneroftheproperty,suchas
the use of a meter tampering, as held in Natividad v. Court of
Appeals,10 use of a device to fraudulently obtain gas, as held in
United States v. Tambunting, and the use of a jumper to divert
electricity, as held in the cases of United States v. Genato, United
Statesv.Carlos,andUnitedStatesv.Menagas.11
As illustrated in the above cases, appropriation of forces of
naturewhicharebroughtundercontrolbysciencesuchaselectrical
energy can be achieved by tampering with any apparatus used for
generating or measuring such forces of nature, wrongfully
redirectingsuchforcesofnaturefromsuchapparatus,orusingany
device to fraudulently obtain such forces of nature. In the instant
case, petitioner was charged with engaging in International Simple
Resale (ISR) or the unauthorized routing and completing of
internationallongdistancecallsusinglines,cables,antennae,and/or
airwavefrequencyandconnectingthesecallsdirectlytothelocalor
domesticexchangefacilitiesofthecountrywheredestined.
As early as 1910, the Court declared in Genato that ownership
over electricity (which an international long distance call consists
of), as well as telephone service, is protected by the provisions on
theft of the Penal Code. The pertinent provision of the Revised
Ordinance of the City of Manila, which was involved in the said
case,readsasfollows:
_______________
7Peoplev.Mercado,65Phil.665(1938).
8Id.Duranv.Tan,85Phil.476(1950).
9Regalado,CriminalLawConspectus(2000ed.),p.520.
10G.R.No.L14887,January31,1961,1SCRA380.
1111N.E.2d403(1937).
53

Injury to electric apparatus Tapping current Evidence.No person

shalldestroy,mutilate,deface,orotherwiseinjureortamperwithanywire,
meter, or other apparatus installed or used for generating, containing,
conducting,ormeasuringelectricity,telegraphortelephoneservice,nortap
orotherwisewrongfullydeflectortakeanyelectriccurrentfromsuchwire,
meter,orotherapparatus.
Nopersonshall,foranypurposewhatsoever,useorenjoythebenefitsof
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
benefitingthereby.

It was further ruled that even without the above ordinance the
actsofsubtractionpunishedthereinarecoveredbytheprovisionson
theftofthePenalCodetheninforce,thus:
Even without them (ordinance), the right of the ownership of electric
current is secured by Articles 517 and 518 of the Penal Code the
applicationofthesearticlesincasesofsubtractionofgas,afluidusedfor
lighting, and in some respects resembling electricity, is confirmed by the
rulelaiddowninthedecisionsofthesupremecourtofSpainofJanuary20,
1887,andApril1,1897,construingandenforcingtheprovisionsofArticles
530and531ofthePenalCodeofthatcountry,Articles517and518ofthe
codeinforceintheseislands.

The acts of subtraction include: (a) tampering with any wire,

meter,orotherapparatusinstalledorusedforgenerating,containing,
conducting,ormeasuringelectricity,telegraphortelephoneservice
(b)tappingorotherwisewrongfullydeflectingortakinganyelectric
current from such wire, meter, or other apparatus and (c) using or
enjoying the benefits of any device by means of which one may
fraudulently obtain any current of electricity or any telegraph or
telephoneservice.
In the instant case, the act of conducting ISR operations by
illegally connecting various equipment or apparatus to private
respondent PLDTs telephone system, through which petitioner is
able to resell or reroute international long distance calls using
respondentPLDTsfacilitiesconstitutesallthreeactsofsubtraction
mentionedabove.
54

The business of providing telecommunication or telephone

serviceislikewisepersonalpropertywhichcanbetheobjectoftheft
under Article 308 of the Revised Penal Code. Business may be
appropriated under Section 2 of Act No. 3952 (Bulk Sales Law),
hence,couldbeobjectoftheft:
Section2.Any sale, transfer, mortgage, or assignment of a stock of
goods, wares, merchandise, provisions, or materials otherwise than in the
ordinarycourseoftradeandtheregularprosecutionofthebusinessofthe
vendor,mortgagor,transferor,orassignor,oranysale,transfer,mortgage,or
assignment of all, or substantially all, of the business or trade theretofore
conducted by the vendor, mortgagor, transferor or assignor, or all, or
substantially all, of the fixtures and equipment used in and about the

businessofthevendor,mortgagor,transferor,orassignor,shallbedeemed
tobeasaleandtransferinbulk,incontemplationoftheAct.xxx.

InStrocheckerv.Ramirez,12thisCourtstated:
Withregardtothenatureofthepropertythusmortgaged,whichisone
half interest in the business above described, such interest is a personal
property capable of appropriation and not included in the enumeration of
realpropertiesinArticle335oftheCivilCode,andmaybethesubjectof
mortgage.

Interest in business was not specifically enumerated as personal

property in the Civil Code in force at the time the above decision
was rendered. Yet, interest in business was declared to be personal
propertysinceitiscapableofappropriationandnotincludedinthe
enumeration of real properties. Article 414 of the Civil Code
provides that all things which are or may be the object of
appropriation are considered either real property or personal
property. Business is likewise not enumerated as personal property
undertheCivilCode.Justlikeinterestinbusiness,however,itmay
be appropriated. Following the ruling in Strochecker v. Ramirez,
business should also be classified as personal property. Since it is
notincludedintheexclusiveenumera
_______________
1244Phil.933(1922).
55

tion of real properties under Article 415, it is therefore personal

property.13
As can be clearly gleaned from the above disquisitions,
petitionersactsconstitutetheftofrespondentPLDTsbusinessand
service, committed by means of the unlawful use of the latters
facilities. In this regard, the Amended Information inaccurately
describestheoffensebymakingitappearthatwhatpetitionertook
were the international long distance telephone calls, rather than
respondentPLDTsbusiness.
Aperusaloftherecordsofthiscasereadilyrevealsthatpetitioner
andrespondentPLDTextensivelydiscussedtheissueofownership
of telephonecalls.The prosecution has taken the position that said
telephonecallsbelongtorespondentPLDT.Thisisevidentfromits
Comment where it defined the issue of this case as whether or not
the unauthorized use or appropriation of PLDT international
telephonecalls,serviceandfacilities,forthepurposeofgenerating
personal profit or gain that should have otherwise belonged to
PLDT,constitutestheft.14

In discussing the issue of ownership, petitioner and respondent

PLDTgavetheirrespectiveexplanationsonhowatelephonecallis
generated.15 For its part, respondent PLDT explains the process of
generatingatelephonecallasfollows:
38.The role of telecommunication companies is not limited to merely
providing the medium (i.e. the electric current) through which the human
voice/voicesignalofthecalleristransmitted.Beforethehumanvoice/voice
signal can be so transmitted, a telecommunication company, using its
facilities,mustfirstbreakdownordecodethehumanvoice/voicesignalinto
electronic impulses and subject the same to further augmentation and
enhancements. Only after such process of conversion will the resulting
electronicimpulsesbetransmittedbyatelecommunicationcompany,again,
throughtheuseofitsfacilities.Uponreachingthedestinationofthecall,the
telecommunicationcompanywillagainbreakdownordecodetheelectronic
_______________
13IITolentino,CommentariesandJurisprudenceontheCivilCodeofthePhilippines26
(1992ed.).
14Rollo,p.902.
15Id.,atpp.781783832837872,874877.
56

impulsesbacktohumanvoice/voicesignalbeforethecalledpartyreceives
the same. In other words, a telecommunication company both
converts/reconvertsthehumanvoice/voicesignalandprovidesthemedium
fortransmittingthesame.
39.Moreover, in the case of an international telephone call, once the
electronicimpulsesoriginatingfromaforeigntelecommunicationcompany
country (i.e. Japan) reaches the Philippines through a local
telecommunicationcompany(i.e.privaterespondentPLDT),itisthelatter
whichdecodes,augmentsandenhancestheelectronicimpulsesbacktothe
humanvoice/voicesignalandprovidesthemedium(i.e.electriccurrent)to
enablethecalledpartytoreceivethecall.Thus,itisnottruethattheforeign
telecommunication company provides (1) the electric current which
transmits the human voice/voice signal of the caller and (2) the electric
currentforthecalledpartytoreceivesaidhumanvoice/voicesignal.
40.Thus,contrarytopetitionerLaurelsassertion,oncetheelectronic
impulses or electric current originating from a foreign telecommunication
company (i.e. Japan) reaches private respondent PLDTs network, it is
private respondent PLDT which decodes, augments and enhances the
electronicimpulsesbacktothehumanvoice/voicesignalandprovidesthe
medium(i.e.electriccurrent)toenablethecalledpartytoreceivethecall.
WithoutprivaterespondentPLDTsnetwork,thehumanvoice/voicesignal
ofthecallingpartywillneverreachthecalledparty.16

In the assailed Decision, it was conceded that in making the

international phone calls, the human voice is converted into
electrical impulses or electric current which are transmitted to the
partycalled.Atelephonecall,therefore,iselectricalenergy.Itwas
also held in the assailed Decision that intangible property such as
electricalenergyiscapableofappropriationbecauseitmaybetaken
andcarriedaway.ElectricityispersonalpropertyunderArticle416
(3)oftheCivilCode,whichenumeratesforcesofnaturewhichare
broughtundercontrolbyscience.17
Indeed, while it may be conceded that international long
distance calls, the matter alleged to be stolen in the instant case,
take the form of electrical energy, it cannot be said that such
internationallongdistancecallswerepersonalpropertiesbelonging
toPLDTsince
_______________
16Id.,atpp.875877.
17Supranote13.
57

thelattercouldnothaveacquiredownershipoversuchcalls.PLDT
merely encodes, augments, enhances, decodes and transmits said
callsusingitscomplexcommunicationsinfrastructureandfacilities.
PLDTnotbeingtheownerofsaidtelephonecalls,thenitcouldnot
validly claim that such telephone calls were taken without its
consent.Itistheuseofthesecommunicationsfacilitieswithoutthe
consent of PLDT that constitutes the crime of theft, which is the
unlawfultakingofthetelephoneservicesandbusiness.
Therefore,thebusinessofprovidingtelecommunicationandthe
telephone service are personal property under Article 308 of the
Revised Penal Code, and the act of engaging in ISR is an act of
subtraction penalized under said article. However, the Amended
Informationdescribesthethingtakenas,internationallongdistance
calls,andonlylatermentionsstealingthebusinessfromPLDTas
themannerbywhichthegainwasderivedbytheaccused.Inorder
tocorrectthisinaccuracyofdescription,thiscasemustberemanded
tothetrialcourtandtheprosecutiondirectedtoamendtheAmended
Information,toclearlystatethatthepropertysubjectofthetheftare
the services and business of respondent PLDT. Parenthetically, this
amendmentisnotnecessitated by a mistake in charging the proper
offense, which would have called for the dismissal of the
informationunderRule110,Section14andRule119,Section19of
the Revised Rules on Criminal Procedure. To be sure, the crime is
properlydesignatedasoneoftheft.Thepurposeoftheamendment
issimplytoensurethattheaccusedisfullyandsufficientlyapprised

of the nature and cause of the charge against him, and thus
guaranteedofhisrightsundertheConstitution.
ACCORDINGLY, the motion for reconsideration is GRANTED.
TheassailedDecisiondatedFebruary27,2006isRECONSIDERED
andSETASIDE.TheDecisionoftheCourtofAppealsinCAG.R.
SPNo.68841affirmingtheOrderissuedbyJudgeZeusC.Abrogar
of the Regional Trial Court of Makati City, Branch 150, which
deniedtheMotiontoQuash(WithMotiontoDeferArraignment)in
Criminal Case No. 992425 for theft, is AFFIRMED. The case is
remandedtothetrialcourtandthePublicProsecutorofMakatiCity
isherebyDIRECTEDtoamendtheAmendedInformationtoshow
thatthe
58

property subject of the theft were services and business of the

privateoffendedparty.
SOORDERED.
Puno (C.J.), Quisumbing, Carpio, AustriaMartinez, Carpio
Morales, Azcuna, ChicoNazario, Velasco, Jr., Nachura, Leonardo
DeCastroandBrion,JJ.,concur.
Corona,J.,SeeSeparateOpinion.
Tinga,J.,PleaseseeConcurringOpinion.
SEPARATEOPINION
CORONA,J.:
The bone of contention in this case is: who owns the telephone
calls that we make? If respondent Philippine Long Distance
Telephone Company (PLDT) can claim ownership over them, then
petitionerLuisMarcosP.Laurel(Laurel)canbechargedwiththeft
ofsuchtelephonecallsunderArticle308oftheRevisedPenalCode.
If PLDT does not own them, then the crime of theft was not
committedandLaurelcannotbechargedwiththiscrime.
One view is that PLDT owns the telephone calls because it is
responsible for creating such calls. The opposing view is that it is
thecallerwhoownsthephonecallsandPLDTmerelyencodesand
transmitsthem.
ThequestionofwhetherPLDTcreatesthephonecallsormerely
encodes and transmits them is a question of fact that can be
answeredbyscience.IagreewithJusticeConsueloYnaresSantiago
that, while telephone calls take the form of electrical energy, it
cannot be said that such [telephone] calls were personal properties
belonging to PLDT since the latter could not have acquired
ownership over such calls. PLDT merely encodes, augments,
enhances, decodes and transmits said calls using its complex
infrastructureandfacilites.
Inmyview,itisessentialtodifferentiatebetweentheconversation
ofacallerandrecipientofthecall,andthetelephoneservicethat

59

made the call possible. Undoubtedly, any conversation between or

amongindividualsistheirsalone.Forexample,iftwochildrenuse
two empty cans and a string as a makeshift play phone, they
themselves create their phone call. However, if individuals
separated by long distances use the telephone and have a
conversationthroughthetelephonelinesofthePLDT,thenthelatter
owns the service which made possible the resulting call. The
conversation,however,remainsprotectedbyourprivacylaws.
Accordingly,IvotetoGRANTthemotionforreconsideration.
CONCURRINGOPINION
TINGA,J.:
Idonothaveanysubstantivedisagreementswiththeponencia.I
writeseparatelytofleshoutoneofthekeyissuesbehindtheCourts
present dispositionwhether the Philippine Long Distance
Company (PLDT) can validly claim ownership over the telephone
calls made using its telephone services. As the subject Amended
Information had alleged that petitioners had unlawfully and
feloniouslytake,stealandusetheinternationallongdistance calls
belonging to PLDT, said information could have been sustained
only if its premise were accepted that PLDT indeed owned those
phonecalls.
I.
Itisbesttobeginwithanoverviewofthefactsthatprecedethis
case. Among many other services, PLDT operates an International
GatewayFacility(IGF),1throughwhichpassphonecallsoriginating
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
InternationalPrivateLeasedLines(IPL).BecauseIPLlinesmaybe
linked to switching equipment connected to a PLDT phone line, it
becomes
_______________
1 Other telecommunication companies authorized to operate an IGF are Globe
Telecommunications (Globe), Eastern Telecoms (ETPI), Digitel Communications
(Digitel)andBayanTelecommunicationsCompany(Bayantel).
60

possible to make an overseas phone call to the Philippines without

havingtopassthroughtheIGF.2

Petitioner Laurel was, until November of 1999, the Corporate

SecretaryofBaynetCo.,Ltd.(Baynet),aswellasamemberofits
Board of Directors.3 Baynet was in the business of selling phone
cards to people who wished to call people in the Philippines. Each
phone card, which apparently was sold in Japan, contained an ISR
telephonenumberandaPIN.Forthecallertousethephonecard,he
orshewoulddialtheISRnumberindicated,andwouldbeconnected
to an ISR operator. The caller would then supply the ISR operator
with the PIN, and the operator would then connect the caller with
the recipient of the call in the Philippines through the IPL lines.
BecausetheIPLlinesbypasstheIGF,PLDTasoperatoroftheIGF
wouldhavenowayofknowingthatthelongdistancecallwasbeing
made.4
Apparently,thecoursingoflongdistancecallsthroughISRisnot
per se illegal. For example, the Federal Communications
CommissionoftheUnitedStatesisauthorizedbystatutetoapprove
longdistancecallingthroughISRforcallsmadetocertaincountries,
asithasdonesowithnationssuchasAustralia,FranceandJapan.5
However, as indicated by the Office of the Solicitor Generals
support for the subject prosecution, there was no authority yet for
thepracticeduringthetimeofthesubjectincidents.
Taking issue with this scheme, PLDT filed a complaint against
Baynet for network fraud.6 A search warrant issued caused the
seizureofvariousequipmentusedinBaynetsoperations.However,
after the inquest investigation, the State Prosecutor, on 28 January
2000, issued a Resolution finding probable cause for theft under
Article308oftheRPC and for violating Presidential Decree No.
401, a law which criminalizes the installation of a telephone
connection without the prior authority from the PLDT, or the
tamperingofits
_______________
2Supranote1atp.251.
3Id.,atp.255.
4Id.,atp.252.
5See

International

Bureau

International

Simple

Resale,

http://www.fcc.gov/ib/pd/pf/isr.html(Lastvisited,6September2007).
6Supranote1,atp.253.
61

lines.7 However, when the Information was filed against petitioner

withtheRegionalTrialCourt(RTC)ofMakation8February2000,
the Information charged petitioner only with theft under Article
308 of the RPC. The accusatory portion of the Amended
Informationreadsasfollows:

On or about September 1019, 1999, or prior thereto, in Makati City,

andwithinthejurisdictionofthisHonorableCourt,theaccused,conspiring
andconfederatingtogetherandallofthemmutuallyhelpingandaidingone
another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfully and feloniously take, steal and use the international long
distance calls belonging to PLDT by conducting International Simple
Resale (ISR), which is a method of routing and completing international
longdistancecallsusinglines,cables,antennae,and/orairwavefrequency
which connect directly to the local or domestic exchange facilities of the
country where the call is destined, effectively stealing this business from
PLDTwhileusingitsfacilitiesintheestimatedamountofP20,370,651.92
tothedamageandprejudiceofPLDT,inthesaidamount.8

Prior to arraignment, petitioner filed a Motion to Quash on the

ground that the factual allegations in the Amended Information do
not constitute the felony of theft under Article 308 of the Revised
PenalCode.Heclaimed,amongothers,thattelephonecallswiththe
use of PLDT telephone lines, whether domestic or international,
belongtothepersonsmakingthecall,nottoPLDT.TheRTCdenied
theMotiontoQuash,andtheCourtofAppealsaffirmedthedenial
of the motion. However, in its Decision now sought to be
reconsidered the Court reversed the lower courts and directed the
quashaloftheAmendedInformation.
II.
Preliminarily,itshouldbenotedthatamongthemyriadpossible
crimes with which petitioner could have been charged, he was
charged with theft, as defined in the RPC provision which has
remainedinitsvestal1930form.EvenourearlierDecisionnowas
_______________
7Id.,atp.254.
8Id.,atp.255.Emphasisnotmine.
62

sailed pointed out that petitioner could have been charged instead
withestafaundertheRPC,orwithviolationoftheAccessDevices
RegulationActof1998.9Moreover,itappearsthatPLDTsoriginal
complaint was for network fraud, and that the State Prosecutor
hadinitiallyrecommendedprosecutionaswellunderP.D.401,alaw
specifically designed against tampering with the phone service
operations of PLDT. Facially, it would appear that prosecution of
petitionerunderanyoftheseotherlawswouldhavebeeneminently
moreappropriatethanthepresentrecourse,whichutilizesthesame
provisionusedtopenalizepickpockets.

ButsincetheStatehaspreferredtopursuethismorecumbersome
theory of the case, we are now belabored to analyze whether the
facts
_______________
9 In the Philippines, Congress has not amended the Revised Penal Code to
include theft of services or theft of business as felonies. Instead, it approved a law,
RepublicActNo. 8484, otherwise known as the Access Devices Regulation Act of
1998,onFebruary11,1998.Underthelaw,anaccessdevicemeansanycard,plate,
code, account number, electronic serial number, personal identification number and
other telecommunication services, equipment or instrumentalitiesidentifier or other
means of account access that can be used to obtain money, goods, services or any
otherthingofvalueortoinitiateatransferoffundsotherthanatransferoriginated
solelybypaperinstrument.AmongtheprohibitedactsenumeratedinSection9ofthe
lawaretheactsofobtainingmoneyoranythingofvaluethroughtheuseofanaccess
device,withintenttodefraudorintenttogainandfleeingthereafterandofeffecting
transactionswithoneormoreaccessdevicesissuedtoanotherpersonorpersonsto
receivepaymentoranyotherthingofvalue.UnderSection11ofthelaw,conspiracy
tocommitaccessdevicesfraudisacrime.However,thepetitionerisnotchargedof
violationofR.A.8484.
Significantly, a prosecution under the law shall be without prejudice to any
liabilityforviolationofanyprovisionsoftheRevisedPenalCode inclusive of theft
under Rule 308 of the Revised Penal Code and estafa under Article 315 of the
RevisedPenalCode.Thus,ifanindividualstealsacreditcardandusesthesameto
obtainservices,heisliableofthefollowing:theftofthecreditcardunderArticle308
of the Revised Penal Code violation of Republic Act No. 8484 and estafa under
Article315(2)(a)oftheRevisedPenalCodewiththeserviceproviderastheprivate
complainant.ThepetitionerisnotchargedofestafabeforetheRTCintheAmended
Information.Laurelv.Abrogar,G.R.155706,27February2006,483SCRA243.
63

as alleged in the Amended Information could somehow align with

thestatutoryelementsoftheftundertheRPC.
The crime of theft is penalized under Article 308 of the RPC.
Fromthatprovision, 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
withintenttogain(4)thatthetakingbedonewithouttheconsentof
theownerand(5)thatthetakingbeaccomplishedwithouttheuse
ofviolenceagainstorintimidationofpersonsorforceuponthings.10
In analyzing whether the crime of theft had been committed
given the allegations in this case, it is against these five elements
thatthefactsmustbetested.Wecanagreeoutrightthatthetaking
alleged in this case was accomplished without the use of violence
againstorintimidationofpersonsorforceuponthings.Itcanalsobe
conceded for now that the element of animo lucrandi, or intent to

gain, does not bear materiality to our present discussion and its
existencemaybepresumedforthemoment.
Let us discuss the remaining elements of theft as they relate to
the Amended Information, and its contentious allegation that
petitioner did unlawfully and feloniously take, steal and use the
internationallongdistancecallsbelongingtoPLDT.
Are international long distance calls personal property? The
assailed Decision did not believe so, but I agree with the present
Resolutionthatthey are. The Court now equates telephone calls to
electricalenergy.Tobeclear,telephonecallsarenotexactlyalikeas
pureelectricity.Theyaresoundwaves(createdbythehumanvoice)
whicharecarriedbyelectricalcurrentstotherecipientontheother
line.11 While electricity is merely the medium through which the
telephone calls are carried, it is sufficiently analogous to allow the
courtsto
_______________
10Seee.g.People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284,
291,citingPeoplev.Sison,322SCRA345,363364(2000).
11Whenapersonspeaksintoatelephone,thesoundwavescreatedbyhisvoice
enter the mouthpiece. An electric current carries the sound to the telephone of the
person

he

is

talking

to.

See

How

the

Telephone

Works,

at

http://areaonline.com/phone/telworks.html.
64

considersuchcallsaspossessingsimilarphysicalcharacteristicsas
electricity.
The assailed Decision conceded that when a telephone call was
made, the human voice [is] converted into electronic impulses or
electrical current.12 As the Resolution now correctly points out,
electricity or electronic energy may be the subject of theft, as it is
personal property capable of appropriation. Since physically a
telephonecallisintheformofanelectricsignal,ourjurisprudence
acknowledging that electricity is personal property which may be
stolenthroughtheftisapplicable.
III.
I now turn to the issue of the legal ownership of the
internationallongdistancecalls,ortelephonecallsingeneralfor
that matter. An examination of the physical characteristics of
telephonecallsisusefulforourpurposes.
As earlier stated, telephone calls take on the form of electrical
current, though they are distinguished from ordinary electricity in
that they are augmented by the human voice which is transmitted
fromonephonetoanother.Amaterialinquiryishowthesecallsare
generatedinthefirstplace?

It bears significance that neither the RTC nor the Court of

Appeals concluded that PLDT owns the telephone calls. Instead,
they concluded that PLDT owns the telephone service, a position
thatisintellectuallyplausible,unlikethecontentionthatPLDTowns
theactualcallsthemselves.YetPLDTiswillingtomakethehighly
controversialclaimthatitownsthephonecalls,despitetheabsence
ofanyreliableorneutralevidencetothateffect.
PLDTarguesthatitdoesnotmerelytransmitthetelephonecalls
butactuallycreatesthem.Theclaimshouldbeggarbelief,ifonly
for the underlying implication that if PLDT creates telephone
calls,suchcallscancomeintoexistencewithouttheparticipationof
acaller,orahumanvoiceforthatmatter.
_______________
12Id.,atp.273.
65

Let us examine the analysis of the American law professors

Benjamin, Lichtman and Shelanski in their textbook
Telecommunications Law and Policy. In illustrating the telephone
systemvocabulary,theyofferthefollowingdiscussion:
Consumers have in their homes standard equipment (like telephones)
capableofencodingandreceivingvoicecommunications.Businesseshave
similar basic equipment. This equipment is what insiders call customer
premisesequipment,whichisabbreviatedCPE.TheTelecommunications
Act of 1996 defines CPE as equipment employed on the premises of a
person (other than a carrier) to originate, route or terminate
telecommunications. 47 U.S.C. 153(14). This category, as implemented
by the FCC, includes not only basic telephones but also answering
machines,faxmachines,modems,andevenprivatebranchexchange(PBX)
equipment(inwhichalargeentitymaintains,ineffect,itsownswitchboard
tovariousinternalextensions).13

IthasbeensuggestedthatPLDTownsthephonecallsbecauseit
istheentitythatencodesordecodessuchcallsevenastheyoriginate
from a human voice. Yet it is apparent from the above discussion
thatthedevicethatencodesordecodestelephonecallsistheCPE,
moreparticularlythetelephonereceiver.Itisthetelephonereceiver,
whichisinthepossessionofthetelephoneuser,whichgeneratesthe
telephone call at the initiative of the user. Now it is known from
experience that while PLDT does offer its subscribers the use of
telephonereceiversmarkedwiththePLDTlogo,subscribersarefree
togotoAbensonandpurchaseatelephonereceivermanufacturedby
an entity other than PLDT, such as Sony or Bell Siemens or
Panasonic.Sincesuchisthecase,itcannotbeaccuratelysaidthat
the encoding or decoding of Philippine telephone calls is done

through the exclusive use of PLDT equipment, because the

telephonereceiversweuseareinvariablypurchaseddirectlybythe
verysamepeoplewhocallorreceivethephonecalls.
It likewise appears from the particular facts of this case that
some, if not many of the phone calls alleged to have been stolen
from PLDT were generated by calls originating not from the
Philippines,butfrom
_______________
13S. Benjamin, D. Lichtman & H. Shelanski, Telecommunications Law and
Policy(2001ed.),atp.613.
66

Japan.Assumingthatthetelephonecompanyexclusivelygenerates
the phone calls, those calls originating from Japan were not
generated by PLDT, but by KDDI, NTT, Japan Telecom, Verizon
Japan,andalltheotherlongdistancetelephoneserviceprovidersin
Japan.
If PLDT were indeed the owner of the telephone calls, then it
should be able to demonstrate by which mode did it acquire
ownership under the Civil Code. Under that Code, ownership may
be acquired by occupation, by intellectual creation, by law, by
donation,bytestateandintestatesuccession,byprescription,andin
consequenceofcertaincontracts,bytradition.14Underwhichmode
ofacquisitioncouldPLDTdeemedasacquiringownershipoverthe
telephone calls? We can exclude outright, without need of
discussion, such modes as testate and intestate succession,
prescription, and tradition. Neither can the case be made that
telephone calls are susceptible to intellectual creation. Donation
should also be ruled out, since a donation must be accepted in
writing by the donee in order to become valid, and that obviously
cannotapplyastotelephonecalls.
Can telephone calls be acquired by occupation? According to
Article713,propertieswhichareacquiredbyoccupationarethings
appropriablebynaturewhicharewithoutanowner,suchasanimals
that are the object of hunting and fishing, hidden treasure and
abandoned movables. It is not possible to establish a plausible
analogybetweentelephonecallsandanimalsthataretheobjectof
hunting or fishing, or of hidden treasure and of abandoned
movables.
Is it possible that PLDT somehow acquired ownership over the
phone calls by reason of law? No law vesting ownership over the
phonecallstoPLDToranyotherlocaltelephoneserviceprovideris
inexistence.
All these points demonstrate the strained reasoning behind the
claimthatPLDTownstheinternationallongdistancecalls.Indeed,

applyingthetraditionallegalparadigmthatgovernstheregulationof
telecommunicationscompanies,itbecomesevenclearerthatPLDT
cannotvalidlyassertsuchownership.Telephonecompanieshave
_______________
14SeeArticle712,CivilCode.
67

historically been regulated as common carriers.15 The 1936 Public

ServiceActclassifieswireorwirelesscommunicationssystemsasa
publicservice,alongwithothercommoncarriers.16IntheUnited
States, telephone providers were expressly decreed to operate as
common carriers in the MannElkins Act of 1910,17 utilizing an
analogytypicallyakintotheregulationofrailroads.18
UnderthePublicServiceAct,atelephonecommunicationsystem
isclassifiedasapublicservice,notacommoncarrier.Thatfact
might seem to imply that the two phrases are mutually exclusive,
despite the fact that the Public Service Act does categorize as
belongingtopublicservice,anycommoncarrier,railroad,street
railway, subway motor vehicle, either for freight or passenger, or
both, with or without fixed route and whatever may be its
classification,freightorcarrierserviceofanyclass,expressservice,
steamboat, or steamship, or steamship line, pontines, ferries and
watercraft,engagedinthetransportationofpassengersorfreightor
both.19
It may be correct to say that under the Civil Code, a telephone
systemisnotacommoncarrier,thecivillawdefinitionofsuchterm
limited to persons, corporations, firms or associations engaged in
thebusinessofcarryingortransportingpassengersorgoodsorboth,
byland,waterorair...20Still,itcannotbedeniedthattheweightof
authoritieshaveacceptedthatthetraditionalregulationregimeof
_______________
15See Globe Telecom, Inc. v. National Telecommunications Commission, G.R.
No.143964,26July2004,435SCRA110,121citingK.Middleton,R.Trager&B.
Chamberlin,The Law ofPublic Communication (5th ed., 2001), at p. 578 in turn
citing47U.S.CSecs.201,202.
16SeeSec.13(b),PublicServiceAct,asamended(1936).
17See H. Zuckman, R. CornRevere, R. Frieden, C. Kennedy, Modern
CommunicationsLaw(1999ed.),atp.911.
18Id.,atp.912.
19 See also De Guzman v. Court of Appeals, 168 SCRA 612 (1988), So
understood,theconceptofcommoncarrierunderArticle1732[oftheCivilCode]
maybeseentocoincideneatlywiththenotionofpublicservice,underthePublic

Service Act (Commonwealth Act No. 1416, as amended) which at least partially
supplementsthelawoncommoncarrierssetforthintheCivilCode.
20SeeArticle1732,CivilCode.
68

telephoneserviceprovidershasbeenakintocommoncarriers,both
intheUnitedStatesandthePhilippines.21
ThelegalparadigmthattreatsPLDTasakintoacommoncarrier
should alert against any notion that it is the owner of the long
distance overseas calls alleged as having been stolen in the
Amended Information. More precisely, it merely transmits these
calls, owned by another, to the intended recipient. Applying the
common carrier paradigm, when a public transport system is
contracted to transport goods or persons to a destination, the
transport company does not acquire ownership over such goods or
such persons, even though it is in custody of the same for the
duration of the trip. Just because the phone calls are transmitted
using the facilities and services of PLDT, it does not follow that
PLDTistheownerofsuchcalls.
Onthisscore,thedistinctionmustbemadebetweenatelephone
company such as PLDT, and a power company such as Meralco.
Bothcompaniesareengagedinthebusinessofdistributingelectrical
energy to endusers. In the case of Meralco, it is pure electricity,
whileinPLDTscase,itisanelectronicsignalconvertedoutofan
indispensable element which is the human voice and transformed
backtotheoriginalvoiceatthepointofreception.NeitherMeralco
nor PLDT created the electronic energy it transmits. But in
Meralcos case, it purchases the electricity from a generating
company such as the National Power Corporation, and it may thus
beconsideredastheownerofsuchelectricitybyreasonofthesale.
PLDTs case is different, as it does not purchase the electronic
signals it transmits. These signals are created by the interaction
betweenthehumanvoiceandtheelectricalcurrent.
Indeed,thelogicalconsequencesshoulditbeheldthatPLDTowns
these long distance overseas calls are quite perilous. PLDT, as
ownerofthesecalls(oranytelephonecallsmadeforthatmatter),
_______________
21 See Globe Telecom, Inc. v. National Telecommunications Commission, G.R.
No.143964,26July2004,435SCRA110,121,citingK.Middleton,R.Trager&B.
Chamberlin, The Law of Public Communication (5th ed., 2001), at p. 578, in turn
citing47U.S.C.Secs.201,202.
69

wouldhaveintheory,therighttorecordthesecallsandsellthem.22

wouldhaveintheory,therighttorecordthesecallsandsellthem.22
Thatisacircumstancenotoneofuswantstocontemplate.
Attheveryleast,itisclearthatthecallerortherecipientofthe
phone call has a better right to assert ownership thereof than the
telephone company. And critically, the subject Amended
Information does not allege that the international long distance
calls were taken without the consent of either the caller or the
recipient.
IamthushardpressedtoconcludethattheAmendedInformation
as it stands was able to allege one of the essential elements of the
crime of theft, that the personal property belonging to another was
taken without the latters consent. All the Amended Information
alleged was that the taking was without PLDTs consent, a moot
pointconsideringthatPLDTismostdefinitelynottheownerofthe
phonecalls.
Theconsensusofthemajorityhasbeentodirecttheamendment
of the subject Amended Information to sustain the current
prosecution of the petitioners without suggesting in any way that
PLDTistheownerofthoseinternationallongdistancecalls.Said
resultisacceptabletome,andIconcurtherein.
Motion for Reconsideration granted, assailed judgment
reconsideredandsetaside.
Note.Theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain, and, viewed
from that perspective, it is immaterial to the product of the felony
thattheoffender,oncehavingcommittedalltheactsofexecutionfor
theft,isableorunabletofreelydisposeofthepropertystolensince
thedeprivationfromtheowneralonehasalreadyensuedfromsuch
actsofexecution.(Valenzuelavs.People,525SCRA306[2007])
o0o
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22SeeArt.428,CivilCode.

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