G. R. NO.  160188: June 21 2007: 552 Phil. 381

Offense Involved: Theft (Article 308,, RPC)

FACTS: On May 19, 1994, petitioner Aristotle Valenzuelaand Calderon were seen outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago, a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark “Receiving Dispatching Unit (RDU),” moving a push cart with cases of detergent of Tide products. Petitioner was then seen unloading these cases in an open parking space, where Calderon was waiting. Valenzuelathen returned inside the supermarket, and went out with more cartons of Tide products which he again unloaded to the same area in the open parking space. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered. After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of said date when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. The Regional Trial Court (RTC) of Quezon City convicted both petitioner and Calderon of the crime of consummated theft.  Before the Court of Appeals, petitioner Valenzuelaargued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen. The CA, however, affirmed the trial court’s decision. Hence, this case.


  1. Whether or not the CA erred in sustaining the conviction of appellant for Consummated Theft?

HELD: No. The CA did not err in sustaining the conviction of appellant for Consummated Theft. The crime is consummated. The following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (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. There was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking. The court eneunciated that as long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. In conjunction, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. With these considerations, the Court concluded that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.