G.R. No.
L-17898 October 31, 1962
PASTOR D. AGO, petitioner,
vs.
THE HON. COURT OF APPEALS, HON. MONTANO A.
ORTIZ, Judge of the Court of First Instance of Agusan,
THE PROVINCIAL SHERIFF OF SURIGAO and GRACE
PARK ENGINEERING, INC., respondents.
Jose M. Luison for petitioner.
Norberto J. Quisumbing for respondent Grace Park
Engineering, Inc.
The Provincial Fiscal of Surigao for respondent Sheriff of
Surigao.
LABRABOR, J.:
Appeal by certiorari to review the decision of respondent Court
of Appeals in CA-G.R. No. 26723-R entitled "Pastor D. Ago vs.
The Provincial Sheriff of Surigao, et al." which in part reads:
In this case for certiorari and prohibition with
preliminary injunction, it appears from the records that
the respondent Judge of the Court of First Instance of
Agusan rendered judgment (Annex "A") in open court
on January 28, 1959, basing said judgment on a
compromise agreement between the parties.
On August 15, 1959, upon petition, the Court of First
Instance issued a writ of execution.
Petitioner's motion for reconsideration dated October
12, 1959 alleges that he, or his counsel, did not
receive a formal and valid notice of said decision,
which motion for reconsideration was denied by the
court below in the order of November 14, 1959.
Petitioner now contends that the respondent Judge
exceeded in his jurisdiction in rendering the execution
without valid and formal notice of the decision.
A compromise agreement is binding between the
parties and becomes the law between them.
(Gonzales vs. Gonzales G.R. No. L-1254, May 21,
1948, 81 Phil. 38; Martin vs. Martin, G.R. No. L-
12439, May 22, 1959) .
It is a general rule in this jurisdiction that a judgment
based on a compromise agreement is not appealable
and is immediately executory, unless a motion is filed
on the ground fraud, mistake or duress. (De los Reyes
vs. Ugarte, 75 Phil. 505; Lapena vs. Morfe, G.R. No.
L-10089, July 31, 1957)
Petitioner's claim that he was not notified or served
notice of the decision is untenable. The judgment on
the compromise agreement rendered by the court
below dated January 28, 1959, was given in open
court. This alone is a substantial compliance as to
notice. (De los Reyes vs. Ugarte, supra)
IN VIEW THEREOF, we believe that the lower court
did not exceed nor abuse its jurisdiction in ordering
the execution of the judgment. The petition
for certiorari is hereby dismissed and the writ of
preliminary injunction heretofore dissolved, with costs
against the petitioner.
IT IS SO ORDERED.
The facts of the case may be briefly stated as follows: In 1957,
petitioner Pastor D. Ago bought sawmill machineries and
equipments from respondent Grace Park Engineer
domineering, Inc., executing a chattel mortgage over said
machineries and equipments to secure the payment of balance
of the price remaining unpaid of P32,000.00, which petitioner
agreed to pay on installment basis.
Petitioner Ago defaulted in his payment and so, in 1958
respondent Grace Park Engineering, Inc. instituted extra-
judicial foreclosure proceedings of the mortgage. To enjoin
said foreclosure, petitioner herein instituted Special Civil Case
No. 53 in the Court of First Instance of Agusan. The parties to
the case arrived at a compromise agreement and submitted
the same in court in writing, signed by Pastor D. Ago and the
Grace Park Engineering, Inc. The Hon. Montano A. Ortiz,
Judge of the Court of First Instance of Agusan, then presiding,
dictated a decision in open court on January 28, 1959.
Petitioner continued to default in his payments as provided in
the judgment by compromise, so Grace Park Engineering, Inc.
filed with the lower court a motion for execution, which was
granted by the court on August 15, 1959. A writ of execution,
dated September 23, 1959, later followed.
The herein respondent, Provincial Sheriff of Surigao, acting
upon the writ of execution issued by the lower court, levied
upon and ordered the sale of the sawmill machineries and
equipments in question. These machineries and equipments
had been taken to and installed in a sawmill building located in
Lianga, Surigao del Sur, and owned by the Golden Pacific
Sawmill, Inc., to whom, petitioner alleges, he had sold them on
February 16, 1959 (a date after the decision of the lower court
but before levy by the Sheriff).
Having been advised by the sheriff that the public auction sale
was set for December 4, 1959, petitioner, on December 1,
1959, filed the petition for certiorari and prohibition with
preliminary injunction with respondent Court of Appeals,
alleging that a copy of the aforementioned judgment given in
open court on January 28, 1959 was served upon counsel for
petitioner only on September 25, 1959 (writ of execution is
dated September 23, 1959); that the order and writ of
execution having been issued by the lower court before
counsel for petitioner received a copy of the judgment, its
resultant last order that the "sheriff may now proceed with the
sale of the properties levied constituted a grave abuse of
discretion and was in excess of its jurisdiction; and that the
respondent Provincial Sheriff of Surigao was acting illegally
upon the allegedly void writ of execution by levying the same
upon the sawmill machineries and equipments which have
become real properties of the Golden Pacific sawmill, Inc., and
is about to proceed in selling the same without prior publication
of the notice of sale thereof in some newspaper of general
circulation as required by the Rules of Court.
The Court of Appeals, on December 8, 1959, issued a writ of
preliminary injunction against the sheriff but it turned out that
the latter had already sold at public auction the machineries in
question, on December 4, 1959, as scheduled. The respondent
Grace Park Engineering, Inc. was the only bidder for
P15,000.00, although the certificate sale was not yet executed.
The Court of Appeals constructed the sheriff to suspend the
issuance of a certificate of sale of the said sawmill machineries
and equipment sold by him on December 4, 1959 until the final
decision of the case. On November 9, 1960 the Court of
Appeals rendered the aforequoted decision.
Before this Court, petitioner alleges that the Court of Appeals
erred (1) in holding that the rendition of judgment on
compromise in open court on January 1959 was a sufficient
notice; and (2) in not resolving the other issues raised before it,
namely, (a) the legality of the public auction sale made by the
sheriff, and (b) the nature of the machineries in question,
whether they are movables or immovables.
The Court of Appeals held that as a judgment was entered by
the court below in open court upon the submission of the
compromise agreement, the parties may be considered as
having been notified of said judgment and this fact constitutes
due notice of said judgment. This raises the following legal
question: Is the order dictated in open court of the judgment of
the court, and is the fact the petitioner herein was present in
open court was the judgment was dictated, sufficient notice
thereof? The provisions of the Rules of Court decree
otherwise. Section 1 of Rule 35 describes the manner in which
judgment shall be rendered, thus:
SECTION 1. How judgment rendered. All
judgments determining the merits of cases shall be in
writing personally and directly prepared by the judge,
and signed by him, stating clearly and distinctly the
facts and the law on which it is based, filed with the
clerk of the court.
The court of first instance being a court of record, in order that
a judgment may be considered as rendered, must not only be
in writing, signed by the judge, but it must also be filed with the
clerk of court. The mere pronouncement of the judgment in
open court with the stenographer taking note thereof does not,
therefore, constitute a rendition of the judgment. It is the filing
of the signed decision with the clerk of court that constitutes
rendition. While it is to be presumed that the judgment that was
dictated in open court will be the judgment of the court, the
court may still modify said order as the same is being put into
writing. And even if the order or judgment has already been put
into writing and signed, while it has not yet been delivered to
the clerk for filing it is still subject to amendment or change by
the judge. It is only when the judgment signed by the judge is
actually filed with the clerk of court that it becomes a valid and
binding judgment. Prior thereto, it could still be subject to
amendment and change and may not, therefore, constitute the
real judgment of the court.
Regarding the notice of judgment, the mere fact that a party
heard the judge dictating the judgment in open court, is not a
valid notice of said judgment. If rendition thereof is constituted
by the filing with the clerk of court of a signed copy (of the
judgment), it is evident that the fact that a party or an attorney
heard the order or judgment being dictated in court cannot be
considered as notice of the real judgment. No judgment can be
notified to the parties unless it has previously been rendered.
The notice, therefore, that a party has of a judgment that was
being dictated is of no effect because at the time no judgment
has as yet been signed by the judge and filed with the clerk.
Besides, the Rules expressly require that final orders or
judgments be served personally or by registered mail. Section
7 of Rule 27 provides as follows:
SEC. 7. Service of final orders or judgments. Final
orders or judgments shall be served either personally
or by registered mail.
In accordance with this provision, a party is not considered as
having been served with the judgment merely because he
heard the judgment dictating the said judgment in open court; it
is necessary that he be served with a copy of the signed
judgment that has been filed with the clerk in order that he may
legally be considered as having been served with the
judgment.
For all the foregoing, the fact that the petitioner herein heard
the trial judge dictating the judgment in open court, is not
sufficient to constitute the service of judgement as required by
the above-quoted section 7 of Rule 2 the signed judgment not
having been served upon the petitioner, said judgment could
not be effective upon him (petitioner) who had not received it. It
follows as a consequence that the issuance of the writ of
execution null and void, having been issued before petitioner
her was served, personally or by registered mail, a copy of the
decision.
The second question raised in this appeal, which has been
passed upon by the Court of Appeals, concerns the validity of
the proceedings of the sheriff in selling the sawmill machineries
and equipments at public auction with a notice of the sale
having been previously published.
The record shows that after petitioner herein Pastor D. Ago
had purchased the sawmill machineries and equipments he
assigned the same to the Golden Pacific Sawmill, Inc. in
payment of his subscription to the shares of stock of said
corporation. Thereafter the sawmill machinery and equipments
were installed in a building and permanently attached to the
ground. By reason of such installment in a building, the said
sawmill machineries and equipment became real estate
properties in accordance with the provision of Art. 415 (5) of
the Civil Code, thus:
ART. 415. The following are immovable property:
xxx xxx xxx
(5) Machinery, receptacles, instruments or
implements tended by the owner of the tenement for
an industry or works which may be carried on in a
building or on a piece of land, and which tend directly
to meet the needs of the said industry or works;
This Court in interpreting a similar question raised before it in
the case of Berkenkotter vs. Cu Unjieng e Hijos, 61 Phil. 683,
held that the installation of the machine and equipment in the
central of the Mabalacat Sugar Co., Inc. for use in connection
with the industry carried by the company, converted the said
machinery and equipment into real estate by reason of their
purpose. Paraphrasing language of said decision we hold that
by the installment of the sawmill machineries in the building of
the Gold Pacific Sawmill, Inc., for use in the sawing of logs
carried on in said building, the same became a necessary and
permanent part of the building or real estate on which the same
was constructed, converting the said machineries and
equipments into real estate within the meaning of Article 415(5)
above-quoted of the Civil Code of the Philippines.
Considering that the machineries and equipments in question
valued at more than P15,000.00 appear to have been sold
without the necessary advertisement of sale by publication in a
newspaper, as required in Sec. 16 of Rule 39 of the Rules of
Court, which is as follows:

SEC. 16. Notice of sale of property on execution.

Before the sale of property on execution, notice
thereof must be given as follows:

xxx xxx xxx

(c) In case of real property, by posting a similar notice

particularly describing the property for twenty days in
three public places in the municipality or city where
the property is situated, and also where the property
is to be sold, and, if the assessed value of the
property exceeds four hundred pesos, by publishing a
copy of the notice once a week, for the same period,
in some newspaper published or having general
circulation in the province, if there be one. If there are
newspapers published in the province in both the
English and Spanish languages, then a like
publication for a like period shall be made in one
newspaper published in the English language, and in
one published in the Spanish language.

the sale made by the sheriff must be declared null and void.

WHEREFORE, the decision of the Court of Appeals sought to

be reviewed is hereby set aside and We declare that the
issuance of the writ of execution in this case against the
sawmill machineries and equipments purchased by petitioner
Pastor D. Ago from the Grace Park Engineering, Inc., as well
as the sale of the same by the Sheriff of Surigao, are null and
void. Costs shall be against the respondent Grace Park
Engineering, Inc.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L.,

Barrera, Paredes, Dizon, Regala and Makalintal, JJ.,concur.
Padilla, J., took no part.
EN BANC
LUIS MARCOS P. LAUREL, G.R. No. 155076
Petitioner,
Present:
Puno, C.J.,
Quisumbing,
Ynares-Santiago,
Carpio,
- versus - Austria-Martinez,
HON. ZEUS C. ABROGAR,
Presiding Judge of the Regional
Trial Court, Makati City, Branch 150,
PEOPLE OF THE PHILIPPINES Promulgated:
& PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY,
Respondents. January 13, 2009
x ---------------------------------------------------------------------------------
------- x
RESOLUTION
YNARES-SANTIAGO, J.:
On February 27, 2006, this Courts First Division rendered
judgment in this case as follows:
IN LIGHT OF ALL THE
FOREGOING, the petition
is GRANTED. 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 quash the Amended Information.
SO ORDERED.[1]
By way of brief background, petitioner is one of the
accused in Criminal Case No. 99-2425, 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, committed as follows:
On or about September 10-19, 1999, or prior
thereto in Makati City, and within the
jurisdiction of this Honorable Court, the
accused, conspiring and confederating
together and all of them mutually helping and
aiding one 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 long distance
calls using lines, cables, antenae, and/or air
wave frequency which connect directly to the
local or domestic exchange facilities of the
country where the call is destined, effectively
stealing this business from PLDT while using
its facilities in the estimated amount of
P20,370,651.92 to the damage and prejudice
of PLDT, in the said amount.
CONTRARY TO LAW.[2]
Petitioner filed a Motion to Quash (with Motion to
Defer Arraignment), on the ground that the factual allegations
in the Amended Information do not constitute the felony of
theft. The trial court denied the Motion to Quash the Amended
Information, as well petitioners subsequent Motion for
Reconsideration.
Petitioners special civil action for certiorari was
dismissed by the Court of Appeals. Thus, petitioner filed the
instant petition for review with this Court.
In the above-quoted Decision, this Court held that the
Amended Information does not contain material allegations
charging petitioner with theft of personal property since
international long distance calls and the business of providing
telecommunication or telephone services are not personal
properties under Article 308 of the Revised Penal Code.
Respondent Philippine Long Distance Telephone
Company (PLDT) filed a Motion for Reconsideration with
Motion to Refer the Case to the Supreme Court En Banc. It
maintains that the Amended Information charging petitioner
with theft is valid and sufficient; that it states the names of all
the accused who were specifically charged with the crime of
theft of PLDTs international calls and business of providing
telecommunication or telephone service on or about
September 10 to 19, 1999 in Makati City by conducting ISR or
International Simple Resale; that it identifies the international
calls and business of providing telecommunication or
telephone service of PLDT as the personal properties which
were unlawfully taken by the accused; and that it satisfies the
test of sufficiency as it enabled a person of common
understanding to know the charge against him and the court to
render judgment properly.
PLDT further insists that the Revised Penal Code
should be interpreted in the context of the Civil Codes definition
of real and personal property. The enumeration of real
properties in Article 415 of the Civil Code is exclusive such that
all those not included therein are personal properties. Since
Article 308 of the Revised Penal Code used the words
personal property without qualification, it follows 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 Revised Penal Code does not require asportation, the sole
requisite being that the object should be capable of
appropriation. The element of taking referred to in Article 308
of the Revised Penal Code means the act of depriving another
of the possession and dominion of a movable coupled with the
intention, at the time of the taking, of withholding it with the
character of permanency. There must be intent to appropriate,
which means to deprive the lawful owner of the thing. Thus, the
term personal properties under Article 308 of the Revised
Penal Code is not limited to only personal properties which are
susceptible of being severed from a mass or larger quantity
and of being transported from place to place.
PLDT likewise alleges that as early as the 1930s,
international telephone calls were in existence; hence, there is
no basis for this Courts finding that the Legislature could not
have contemplated the theft of international telephone calls
and the unlawful transmission and routing of electronic voice
signals or impulses emanating from such calls by unlawfully
tampering with the telephone device as within the coverage of
the Revised Penal Code.
According to respondent, the international phone calls
which are electric currents or sets of electric impulses
transmitted through 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 includes electricity)
which are brought under the control by science, are personal
property.
In his Comment to PLDTs motion for reconsideration,
petitioner Laurel claims that a telephone call is a conversation
on the phone or 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. Petitioner claims that the
analogy between generated electricity and 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
protected but the right to carry on a business. This right is what
is considered as property. Since the services of PLDT cannot
be considered as property, the same may not be subject of
theft.
The Office of the Solicitor General (OSG) agrees with
respondent PLDT that international phone calls and the
business or service of providing international phone calls are
subsumed in the enumeration and definition of personal
property under the Civil Code hence, may be proper subjects
of theft. It noted that the cases of United States v.
Genato,[3]United States v. Carlos[4] and United States v.
Tambunting,[5] which recognized intangible properties like gas
and electricity as personal properties, are deemed incorporated
in our penal laws. Moreover, the theft provision in the Revised
Penal Code was deliberately couched in broad terms precisely
to be all-encompassing and embracing even such scenario that
could not have been easily anticipated.
According to the OSG, prosecution under Republic
Act (RA) No. 8484 or the Access Device Regulations Act of
1998 and RA 8792 or the Electronic Commerce Act of
2000does not preclude prosecution under the Revised Penal
Code for the crime of theft. The latter embraces unauthorized
appropriation or use of PLDTs international calls, service and
business, for personal profit or gain, to the prejudice of PLDT
as owner thereof. On the other hand, the special laws punish
the surreptitious and advanced technical means employed to
illegally obtain the subject service and business. Even
assuming that the correct indictment should have been under
RA 8484, the quashal of the information would still not be
proper. 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 designation of the crime, that control.
Considering the gravity and complexity of the novel questions
of law involved in this case, the Special First Division resolved
to refer the same to the Banc.
We resolve to grant the Motion for Reconsideration
but remand the case to the trial court for proper clarification of
the Amended Information.
Article 308 of the Revised Penal Code provides:
Art. 308. Who are liable for theft. Theft is
committed by any person who, with intent to
gain but without violence against, or
intimidation of persons nor force upon things,
shall take personal property of another
without the latters consent.
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 without the use of violence against or
intimidation of persons or force upon things.
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. This Court, in United States v.
Genato, United States v. Carlos, and United States v.
Tambunting, consistently ruled that any personal property,
tangible or intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft.
Moreover, since the passage of the Revised Penal Code
on December 8, 1930, the term personal property has had a
generally accepted definition in civil law. In Article 335 of the
Civil Code of Spain, personal property is defined as anything
susceptible of appropriation and not included in the foregoing
chapter (not real property). Thus, the term personal property in
the Revised Penal Code should be interpreted in the context of
the Civil Code provisions in accordance with the rule on
statutory construction that where words have been long used in
a technical sense and have been 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 have been
previously used.[6] In fact, this Court used the Civil Code
definition of personal property in interpreting the theft provision
of the penal code in United States v. Carlos.
Cognizant of the definition given by jurisprudence and the Civil
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. Neither did it provide a restrictive definition or an
exclusive 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 included in the enumeration of real
properties under the Civil Code and capable of appropriation
can be the subject of theft under the Revised Penal Code.
The only requirement for a personal property to be the object of
theft under the penal code is that it be capable of
appropriation. It need not be capable of asportation, which is
defined as carrying away.[7] Jurisprudence is settled that to
take under the theft provision of the penal code does not
require asportation or carrying away.[8]
To appropriate means to deprive the lawful owner of the
thing.[9] The word take in the Revised Penal Code includes any
act intended to transfer possession which, as held in the
assailed Decision, may be committed through the use of the
offenders own hands, as well as any mechanical device, such
as an access device or card as in the instant case. This
includes controlling the destination of the property stolen to
deprive the owner of the property, such as 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 States v.
Carlos, and United States v. Menagas.[11]
As illustrated in the above cases, appropriation of forces of
nature which are brought under control by science such as
electrical energy can be achieved by tampering with any
apparatus used for generating or measuring such forces of
nature, wrongfully redirecting such forces of nature from such
apparatus, or using any 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 international long
distance calls using lines, cables, antennae, and/or air wave
frequency and connecting these calls directly to the local or
domestic exchange facilities of the country where destined.
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, reads as follows:
Injury to electric apparatus; Tapping current;
Evidence. No person shall destroy, mutilate,
deface, or otherwise injure or tamper with
any wire, meter, or other apparatus installed
or used for generating, containing,
conducting, or measuring electricity,
telegraph or telephone service, nor tap or
otherwise wrongfully deflect or take any
electric current from such wire, meter, or
other 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.
It was further ruled that even without the above ordinance the
acts of subtraction punished therein are covered by the
provisions on theft of the Penal Code then in force, 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 application of these articles in
cases of subtraction of gas, a fluid used for
lighting, and in some respects resembling
electricity, is confirmed by the rule laid down
in the decisions of the supreme court of
Spain of January 20, 1887, and April 1,
1897, construing and enforcing the
provisions of articles 530 and 531 of the
Penal Code of that country, articles 517 and
518 of the code in force in these islands.
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) tapping or otherwise wrongfully
deflecting or taking any electric 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 telephone service.
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 re-route international long distance calls
using respondent PLDTs facilities constitutes all three acts of
subtraction mentioned above.
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.Business
may be appropriated under Section 2 of Act No. 3952 (Bulk
Sales Law), hence, could be object of theft:
Section 2. Any sale, transfer,
mortgage, or assignment of a stock of goods,
wares, merchandise, provisions, or materials
otherwise than in the ordinary course of
trade and the regular prosecution of the
business of the vendor, mortgagor,
transferor, or assignor, or any sale, 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 business of
the vendor, mortgagor, transferor, or
assignor, shall be deemed to be a sale and
transfer in bulk, in contemplation of the Act. x
x x.
In Strochecker v. Ramirez,[12] this Court stated:
With regard to the nature of the
property thus mortgaged which is one-half
interest in the business above described,
such interest is a personal property capable
of appropriation and not included in the
enumeration of real properties in article 335
of the Civil Code, and may be the subject of
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 property since it is capable of
appropriation and not included in the 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 under the Civil
Code. Just like interest in business, however, it may be
appropriated. Following the ruling in Strochecker v. Ramirez,
business should also be classified as personal property. Since
it is not included in the exclusive enumeration of real properties
under Article 415, it is therefore personal property. [13]
As can be clearly gleaned from the above
disquisitions, petitioners acts constitute theft of respondent
PLDTs business and service, committed by means of the
unlawful use of the latters facilities. In this regard, the
Amended Information inaccurately describes the offense by
making it appear that what petitioner took were the
international long distance telephone calls, rather than
respondent PLDTs business.
A perusal of the records of this case readily reveals that
petitioner and respondent PLDT extensively discussed the
issue of ownership of telephone calls. The prosecution has
taken the position that said telephone calls belong to
respondent PLDT. This is evident from its Comment where it
defined the issue of this case as whether or not the
unauthorized use or appropriation of PLDT international
telephone calls, service and facilities, for the purpose of
generating personal profit or gain that should have otherwise
belonged to PLDT, constitutes theft.[14]
In discussing the issue of ownership, petitioner and respondent
PLDT gave their respective explanations on how a telephone
call is generated.[15] For its part, respondent PLDT explains the
process of generating a telephone call as follows:
38. The role of telecommunication
companies is not limited to merely providing
the medium (i.e. the electric current) through
which the human voice/voice signal of the
caller is transmitted. Before the human
voice/voice signal can be so transmitted, a
telecommunication company, using its
facilities, must first break down or decode the
human voice/voice signal into electronic
impulses and subject the same to further
augmentation and enhancements. Only after
such process of conversion will the resulting
electronic impulses be transmitted by a
telecommunication company, again, through
the use of its facilities. Upon reaching the
destination of the call, the telecommunication
company will again break down or decode
the electronic impulses back to human
voice/voice signal before the called party
receives the same. In other words, a
telecommunication company both
converts/reconverts the human voice/voice
signal and provides the medium for
transmitting the same.
39. Moreover, in the case of an
international telephone call, once the
electronic impulses originating from a foreign
telecommunication company country (i.e.
Japan) reaches the Philippines through a
local telecommunication company (i.e.
private respondent PLDT), it is the latter
which decodes, augments and enhances the
electronic impulses back to the human
voice/voice signal and provides the medium
(i.e. electric current) to enable the called
party to receive the call. Thus, it is not true
that the foreign telecommunication company
provides (1) the electric current which
transmits the human voice/voice signal of the
caller and (2) the electric current for the
called party to receive said human
voice/voice signal.
40. Thus, contrary to petitioner
Laurels assertion, once the electronic
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
electronic impulses back to the human
voice/voice signal and provides the medium
(i.e. electric current) to enable the called
party to receive the call. Without private
respondent PLDTs network, the human
voice/voice signal of the calling party will
never reach the called party.[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 party called. A telephone call, therefore, is electrical
energy. It was also held in the assailed Decision that intangible
property such as electrical energy is capable of appropriation
because it may be taken and carried away. Electricity is
personal property under Article 416 (3) of the Civil Code, which
enumerates forces of nature which are brought under control
by science.[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 international long distance 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
communications infrastructure and facilities. PLDT not being
the owner of said telephone calls, then it could not validly claim
that such telephone calls were taken without its consent. 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 telephone services and business.
Therefore, the business of providing
telecommunication and the 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 Information describes the
thing taken as, international long distance calls, and only later
mentions stealing the business from PLDT as the manner by
which the gain was derived by the accused. In order to correct
this inaccuracy of description, this case must be remanded to
the trial 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 necessitated by
a mistake in charging the proper offense, which would have
called for the dismissal of the information under Rule 110,
Section 14 and 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 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 CA-G.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. 99-
2425 for theft, is AFFIRMED. The case is remanded to the trial
court and the Public Prosecutor of Makati City is CERTIFICATION
hereby DIRECTED to amend the Amended Information to
show that the property subject of the theft were services and
business of the private offended party.
Pursuant to Section 13, Article VIII of the Constitution,
it is hereby certified that the conclusions in the above
SO ORDERED.
Resolution were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

CONSUELO
YNARES-
SANTIAGO
R
Associate Justice EYNAT
O S.
PUNO
WE CONCUR:
C
hief
Justice
REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice