Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13785 October 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
TOMAS ADIAO, defendant-appellant.

Victoriano Yamzon for appellant.

Attorney-General Paredes for appellee.

MALCOLM, J.:

The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He
was found guilty of the lesser crime of frustrated theft. He appealed to the Court of First Instance
of the city of Manila and again he was found guilty of the crime of frustrated theft, and was
sentenced to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay
the costs.

The sole error assigned on appeal is that the lower court erred in holding that the defendant was
guilty of the crime of theft as dis closed by the facts appearing of record. We have examined the
evidence carefully and from our study are unable to say that the proof is contrary to the findings of
the lower court. Stated in one sentence, the defendant, Tomas Adiao, a customs inspector,
abstracted a leather belt valued at P0.80, from the baggage of a Japanese named T. Murakami, and
secreted the belt in his desk in the Custom House, where it was found by other customs employees.

Based on these facts, the Court is of the opinion that the crime can not properly be classified as
frustrated, as this word is defined in article 3 of the Penal Code, but that since the offender
performed all of the acts of execution necessary for the accomplishment crime of theft. The fact that
the defendant was under observation during the entire transaction and that he was unable to get the
merchandise out of the Custom House, is not decisive; all the elements of the completed crime of
theft are present. The following decisions of the supreme court of Spain are in point:

The defendant was charged with the theft of some fruit from the land of another. As he was
in the act of taking the fruit he was seen by a policeman, yet it did not appear that he was at
that moment caught by the policeman but sometime later. The court said: ". . . The trial court
did not err . . . in considering the crime as that of consummated theft instead of frustrated
theft inasmuch as nothing appears in the record showing that the policemen who saw the
accused take the fruit from the adjoining land arrested him in the act and thus prevented him
from taking full possession of the thing stolen and even its utilization by him for an interval of
time. (Decision of the supreme court of Spain, October 14, 1898.)

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

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

There exists the aggravating circumstance that advantage was taken by the offender of his public
position. Wherefore, in view of the provisions of articles 517 and 518, No. 5, of the Penal Code, and
there being present one aggravating circumstance compensated by no mitigating circumstances, the
penalty must be imposed in the maximum degree. 1awph!l.net

Judgment is reversed and the defendant and appellant is sentenced to three months and one day
of arresto mayor, with the costs of all instances against him. The merchandise in question, attached
to the record as Exhibit A, shall be returned to the lawful owner, T. Murakami. So ordered.

Torres, Johnson, Street, Avancea and Fisher, JJ., concur.