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G.R. No. 155076 February 27, 2006 LUIS MARCOS P. LAUREL, Petitioner,

vs.

HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial

Court, Makati City, Branch 150, PEOPLE OF THE PHILIPPINES&

PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondents.

D E C I S I O N

CALLEJO, SR., J.: Before us is a Petition for Review on Certiorari of the Decision1 of the

Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order

issued by Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City,

Branch 150, which denied the "Motion to Quash (With Motion to Defer

Arraignment)" in Criminal Case No. 99-2425 for theft.

Philippine Long Distance Telephone Company (PLDT) is the holder of a

legislative franchise to render local and international telecommunication

services under Republic Act No. 7082.2 Under said law, PLDT is authorized

to establish, operate, manage, lease, maintain and purchase

telecommunication systems, including transmitting, receiving and switching

stations, for both domestic and international calls. For this purpose, it has

installed an estimated 1.7 million telephone lines nationwide. PLDT also

offers other services as authorized by Certificates of Public Convenience

and Necessity (CPCN) duly issued by the National Telecommunications

Commission (NTC), and operates and maintains an International Gateway

Facility (IGF). The PLDT network is thus principally composed of the

Public Switch Telephone Network (PSTN), telephone handsets and/or

telecommunications equipment used by its subscribers, the wires and cables

linking said telephone handsets and/or telecommunications equipment,

antenna, the IGF, and other telecommunications equipment which provide

interconnections.3 1avvphil.net

PLDT alleges that one of the alternative calling patterns that constitute

network fraud and violate its network integrity is that which is known as

International Simple Resale (ISR). ISR is a method of routing and

completing international long distance calls using International Private

Leased Lines (IPL), cables, antenna or air wave or frequency, which

connect directly to the local or domestic exchange facilities of the

terminating country (the country where the call is destined). The IPL is

linked to switching equipment which is connected to a PLDT telephone

line/number. In the process, the calls bypass the IGF found at the

terminating country, or in some instances, even those from the originating

country.4

One such alternative calling service is that offered by Baynet Co., Ltd.

(Baynet) which sells "Bay Super Orient Card" phone cards to people who

call their friends and relatives in the Philippines. With said card, one is

entitled to a 27-minute call to the Philippines for about ¥37.03 per minute.

After dialing the ISR access number indicated in the phone card, the ISR

operator requests the subscriber to give the PIN number also indicated in

the phone card. Once the caller’s identity (as purchaser of the phone card) is

confirmed, the ISR operator will then provide a Philippine local line to the

requesting caller via the IPL. According to PLDT, calls made through the

IPL never pass the toll center of IGF operators in the Philippines. Using the

local line, the Baynet card user is able to place a call to any point in the

Philippines, provided the local line is National Direct Dial (NDD) capable.5

PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to

course its incoming international long distance calls from Japan. The IPL is

linked to switching equipment, which is then connected to PLDT telephone

lines/numbers and equipment, with Baynet as subscriber. Through the use

of the telephone lines and other auxiliary equipment, Baynet is able to

connect an international long distance call from Japan to any part of the

Philippines, and make it appear as a call originating from Metro Manila.

Consequently, the operator of an ISR is able to evade payment of access,

termination or bypass charges and accounting rates, as well as compliance

with the regulatory requirements of the NTC. Thus, the ISR operator offers

international telecommunication services at a lower rate, to the damage and

prejudice of legitimate operators like PLDT.6

PLDT pointed out that Baynet utilized the following equipment for its ISR

activities: lines, cables, and antennas or equipment or device capable of

transmitting air waves or frequency, such as an IPL and telephone lines and

equipment; computers or any equipment or device capable of accepting

information applying the prescribed process of the information and

supplying the result of this process; modems or any equipment or device

that enables a data terminal equipment such as computers to communicate

with other data terminal equipment via a telephone line; multiplexers or any

equipment or device that enables two or more signals from different sources

to pass through a common cable or transmission line; switching equipment,

or equipment or device capable of connecting telephone lines; and software,

diskettes, tapes or equipment or device used for recording and storing

information.7

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PLDT also discovered that Baynet subscribed to a total of 123 PLDT

telephone lines/numbers.8 Based on the Traffic Study conducted on the

volume of calls passing through Baynet’s ISR network which bypass the

IGF toll center, PLDT incurred an estimated monthly loss of

P10,185,325.96.9 Records at the Securities and Exchange Commission

(SEC) also revealed that Baynet was not authorized to provide international

or domestic long distance telephone service in the country. The following

are its officers: Yuji Hijioka, a Japanese national (chairman of the board of

directors); Gina C. Mukaida, a Filipina (board member and president); Luis

Marcos P. Laurel, a Filipino (board member and corporate secretary); Ricky

Chan Pe, a Filipino (board member and treasurer); and Yasushi Ueshima,

also a Japanese national (board member).

Upon complaint of PLDT against Baynet for network fraud, and on the

strength of two search warrants10 issued by the RTC of Makati, Branch 147,

National Bureau of Investigation (NBI) agents searched its office at the 7th

Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999.

Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J.

Villegas were arrested by NBI agents while in the act of manning the

operations of Baynet. Seized in the premises during the search were

numerous equipment and devices used in its ISR activities, such as

multiplexers, modems, computer monitors, CPUs, antenna, assorted

computer peripheral cords and microprocessors, cables/wires, assorted

PLDT statement of accounts, parabolic antennae and voltage regulators.

State Prosecutor Ofelia L. Calo conducted an inquest investigation and

issued a Resolution11 on January 28, 2000, finding probable cause for theft

under Article 308 of the Revised Penal Code and Presidential Decree No.

40112 against the respondents therein, including Laurel.

On February 8, 2000, State Prosecutor Calo filed an Information with the

RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with

theft under Article 308 of the Revised Penal Code. After conducting the

requisite preliminary investigation, the State Prosecutor filed an Amended

Information impleading Laurel (a partner in the law firm of Ingles, Laurel,

Salinas, and, until November 19, 1999, a member of the board of directors

and corporate secretary of Baynet), and the other members of the board of

directors of said corporation, namely, Yuji Hijioka, Yasushi Ueshima,

Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the

Revised Penal Code. The inculpatory portion of the Amended Information

reads:

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, antennae, 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.13

Accused Laurel 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 under Article 308 of the

Revised Penal Code. He averred that the Revised Penal Code, or any other

special penal law for that matter, does not prohibit ISR operations. He

claimed that telephone calls with the use of PLDT telephone lines, whether

domestic or international, belong to the persons making the call, not to

PLDT. He argued that the caller merely uses the facilities of PLDT, and

what the latter owns are the telecommunication infrastructures or facilities

through which the call is made. He also asserted that PLDT is compensated

for the caller’s use of its facilities by way of rental; for an outgoing overseas

call, PLDT charges the caller per minute, based on the duration of the call.

Thus, no personal property was stolen from PLDT. According to Laurel, the

P20,370,651.92 stated in the Information, if anything, represents the rental

for the use of PLDT facilities, and not the value of anything owned by it.

Finally, he averred that the allegations in the Amended Information are

already subsumed under the Information for violation of Presidential Decree

(P.D.) No. 401 filed and pending in the Metropolitan Trial Court of Makati

City, docketed as Criminal Case No. 276766.

The prosecution, through private complainant PLDT, opposed the motion,14

contending that the movant unlawfully took personal property belonging to

it, as follows: 1) intangible telephone services that are being offered by

PLDT and other telecommunication companies, i.e., the connection and

interconnection to their telephone lines/facilities; 2) the use of those

facilities over a period of time; and 3) the revenues derived in connection

with the rendition of such services and the use of such facilities.15

The prosecution asserted that the use of PLDT’s intangible telephone

services/facilities allows electronic voice signals to pass through the same,










and ultimately to the called party’s number. It averred that such

service/facility is akin to electricity which, although an intangible property,

may, nevertheless, be appropriated and be the subject of theft. Such service

over a period of time for a consideration is the business that PLDT provides

to its customers, which enables the latter to send various messages to

installed recipients. The service rendered by PLDT is akin to merchandise

which has specific value, and therefore, capable of appropriation by

another, as in this case, through the ISR operations conducted by the

movant and his co-accused.

The prosecution further alleged that "international business calls and

revenues constitute personal property envisaged in Article 308 of the

Revised Penal Code." Moreover, the intangible telephone services/facilities

belong to PLDT and not to the movant and the other accused, because they

have no telephone services and facilities of their own duly authorized by the

NTC; thus, the taking by the movant and his co-accused of PLDT services

was with intent to gain and without the latter’s consent.

The prosecution pointed out that the accused, as well as the movant, were

paid in exchange for their illegal appropriation and use of PLDT’s

telephone services and facilities; on the other hand, the accused did not pay

a single centavo for their illegal ISR operations. Thus, the acts of the

accused were akin to the use of a "jumper" by a consumer to deflect the

current from the house electric meter, thereby enabling one to steal

electricity. The prosecution emphasized that its position is fortified by the

Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S.

No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No.

2000-370) which were issued on August 14, 2000 finding probable cause

for theft against the respondents therein.

On September 14, 2001, the RTC issued an Order16 denying the Motion to

Quash the Amended Information. The court declared that, although there is

no law that expressly prohibits the use of ISR, the facts alleged in the

Amended Information "will show how the alleged crime was committed by

conducting ISR," to the damage and prejudice of PLDT.

Laurel filed a Motion for Reconsideration17 of the Order, alleging that

international long distance calls are not personal property, and are not

capable of appropriation. He maintained that business or revenue is not

considered personal property, and that the prosecution failed to adduce

proof of its existence and the subsequent loss of personal property

belonging to another. Citing the ruling of the Court in United States v. De

Guzman,18 Laurel averred that the case is not one with telephone calls

which originate with a particular caller and terminates with the called party.

He insisted that telephone calls are considered privileged communications

under the Constitution and cannot be considered as "the property of PLDT."

He further argued that there is no kinship between telephone calls and

electricity or gas, as the latter are forms of energy which are generated and

consumable, and may be considered as personal property because of such

characteristic. On the other hand, the movant argued, the telephone business

is not a form of energy but is an activity.

In its Order19 dated December 11, 2001, the RTC denied the movant’s

Motion for Reconsideration. This time, it ruled that what was stolen from

PLDT was its "business" because, as alleged in the Amended Information,

the international long distance calls made through the facilities of PLDT

formed part of its business. The RTC noted that the movant was charged

with stealing the business of PLDT. To support its ruling, it cited

Strochecker v. Ramirez,20 where the Court ruled that interest in business is

personal property capable of appropriation. It further declared that, through

their ISR operations, the movant and his co-accused deprived PLDT of fees

for international long distance calls, and that the ISR used by the movant

and his co-accused was no different from the "jumper" used for stealing

electricity.

Laurel then filed a Petition for Certiorari with the CA, assailing the Order of

the RTC. He alleged that the respondent judge gravely abused his discretion

in denying his Motion to Quash the Amended Information.21 As gleaned

from the material averments of the amended information, he was charged

with stealing the international long distance calls belonging to PLDT, not its

business. Moreover, the RTC failed to distinguish between the business of

PLDT (providing services for international long distance calls) and the

revenues derived therefrom. He opined that a "business" or its revenues

cannot be considered as personal property under Article 308 of the Revised

Penal Code, since a "business" is "(1) a commercial or mercantile activity

customarily engaged in as a means of livelihood and typically involving

some independence of judgment and power of decision; (2) a commercial or

industrial enterprise; and (3) refers to transactions, dealings or intercourse

of any nature." On the other hand, the term "revenue" is defined as "the

income that comes back from an investment (as in real or personal

property); the annual or periodical rents, profits, interests, or issues of any

species of real or personal property."22

Laurel further posited that an electric company’s business is the production

and distribution of electricity; a gas company’s business is the production

and/or distribution of gas (as fuel); while a water company’s business is the

production and distribution of potable water. He argued that the "business"









in all these cases is the commercial activity, while the goods and

merchandise are the products of such activity. Thus, in prosecutions for

theft of certain forms of energy, it is the electricity or gas which is alleged

to be stolen and not the "business" of providing electricity or gas. However,

since a telephone company does not produce any energy, goods or

merchandise and merely renders a service or, in the words of PLDT, "the

connection and interconnection to their telephone lines/facilities," such

service cannot be the subject of theft as defined in Article 308 of the

Revised Penal Code.23

He further declared that to categorize "business" as personal property under

Article 308 of the Revised Penal Code would lead to absurd consequences;

in prosecutions for theft of gas, electricity or water, it would then be

permissible to allege in the Information that it is the gas business, the

electric business or the water business which has been stolen, and no longer

the merchandise produced by such enterprise.24

Laurel further cited the Resolution of the Secretary of Justice in Piltel v.

Mendoza,25 where it was ruled that the Revised Penal Code, legislated as it

was before present technological advances were even conceived, is not

adequate to address the novel means of "stealing" airwaves or airtime. In

said resolution, it was noted that the inadequacy prompted the filing of

Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of

1997" to deter cloning of cellular phones and other forms of

communications fraud. The said bill "aims to protect in number (ESN) (sic)

or Capcode, mobile identification number (MIN), electronic-international

mobile equipment identity (EMEI/IMEI), or subscriber identity module"

and "any attempt to duplicate the data on another cellular phone without the

consent of a public telecommunications entity would be punishable by

law."26 Thus, Laurel concluded, "there is no crime if there is no law

punishing the crime."

On August 30, 2002, the CA rendered judgment dismissing the petition.27

The appellate court ruled that a petition for certiorari under Rule 65 of the

Rules of Court was not the proper remedy of the petitioner. On the merits of

the petition, it held that while business is generally an activity

which is abstract and intangible in form, it is nevertheless considered

"property" under Article 308 of the Revised Penal Code. The CA opined

that PLDT’s business of providing international calls is personal property

which may be the object of theft, and cited United States v. Carlos28 to

support such conclusion. The tribunal also cited Strochecker v. Ramirez,29

where this Court ruled that one-half interest in a day’s business is personal

property under Section 2 of Act No. 3952, otherwise known as the Bulk

Sales Law. The appellate court held that the operations of the ISR are not

subsumed in the charge for violation of P.D. No. 401.

Laurel, now the petitioner, assails the decision of the CA, contending that -

THE COURT OF APPEALS ERRED IN RULING THAT THE

PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE

INFORMATION IS NOT THE "INTERNATIONAL LONG

DISTANCE CALLS" BUT THE "BUSINESS OF PLDT."

THE COURT OF APPEALS ERRED IN RULING THAT THE

TERM "BUSINESS" IS PERSONAL PROPERTY WITHIN THE

MEANING OF ART. 308 OF THE REVISED PENAL CODE.30

Petitioner avers that the petition for a writ of certiorari may be filed to

nullify an interlocutory order of the trial court which was issued with grave

abuse of discretion amounting to excess or lack of jurisdiction. In support of

his petition before the Court, he reiterates the arguments in his pleadings

filed before the CA. He further claims that while the right to carry on a

business or an interest or participation in business is considered property

under the New Civil Code, the term "business," however, is not. He asserts

that the Philippine Legislature, which approved the Revised Penal Code

way back in January 1, 1932, could not have contemplated to include

international long distance calls and "business" as personal property under

Article 308 thereof.

In its comment on the petition, the Office of the Solicitor General (OSG)

maintains that the amended information clearly states all the essential

elements of the crime of theft. Petitioner’s interpretation as to whether an

"international long distance call" is personal property under the law is

inconsequential, as a reading of the amended information readily reveals

that specific acts and circumstances were alleged charging Baynet, through

its officers, including petitioner, of feloniously taking, stealing and illegally

using international long distance calls belonging to respondent PLDT by

conducting ISR operations, thus, "routing and completing international long

distance calls using lines, cables, antenna and/or airwave frequency which

connect directly to the local or domestic exchange facilities of the country

where the call is destined." The OSG maintains that the international long

distance calls alleged in the amended information should be construed to

mean "business" of PLDT, which, while abstract and intangible in form, is

personal property susceptible of appropriation.31 The OSG avers that what

was stolen by petitioner and his co-accused is the business of PLDT

providing international long distance calls which, though intangible, is

personal property of the PLDT.32












For its part, respondent PLDT asserts that personal property under Article

308 of the Revised Penal Code comprehends intangible property such as

electricity and gas which are valuable articles for merchandise, brought and

sold like other personal property, and are capable of appropriation. It insists

that the business of international calls and revenues constitute personal

property because the same are valuable articles of merchandise. The

respondent reiterates that international calls involve (a) the intangible

telephone services that are being offered by it, that is, the connection and

interconnection to the telephone network, lines or facilities; (b) the use of its

telephone network, lines or facilities over a period of time; and (c) the

income derived in connection therewith.33

PLDT further posits that business revenues or the income derived in

connection with the rendition of such services and the use of its telephone

network, lines or facilities are personal properties under Article 308 of the

Revised Penal Code; so is the use of said telephone services/telephone

network, lines or facilities which allow electronic voice signals to pass

through the same and ultimately to the called party’s number. It is akin to

electricity which, though intangible property, may nevertheless be

appropriated and can be the object of theft. The use of respondent PLDT’s

telephone network, lines, or facilities over a period of time for consideration

is the business that it provides to its customers, which enables the latter to

send various messages to intended recipients. Such use over a period of

time is akin to merchandise which has value and, therefore, can be

appropriated by another. According to respondent PLDT, this is what

actually happened when petitioner Laurel and the other accused below

conducted illegal ISR operations.34

The petition is meritorious.

The issues for resolution are as follows: (a) whether or not the petition for

certiorari is the proper remedy of the petitioner in the Court of Appeals; (b)

whether or not international telephone calls using Bay Super Orient Cards

through the telecommunication services provided by PLDT for such calls,

or, in short, PLDT’s business of providing said telecommunication services,

are proper subjects of theft under Article 308 of the Revised Penal Code;

and (c) whether or not the trial court committed grave abuse of discretion

amounting to excess or lack of jurisdiction in denying the motion of the

petitioner to quash the amended information.

On the issue of whether or not the petition for certiorari instituted by the

petitioner in the CA is proper, the general rule is that a petition for certiorari

under Rule 65 of the Rules of Court, as amended, to nullify an order

denying a motion to quash the Information is inappropriate because the

aggrieved party has a remedy of appeal in the ordinary course of law.

Appeal and certiorari are mutually exclusive of each other. The remedy of

the aggrieved party is to continue with the case in due course and, when an

unfavorable judgment is rendered, assail the order and the decision on

appeal. However, if the trial court issues the order denying the motion to

quash the Amended Information with grave abuse of discretion amounting

to excess or lack of jurisdiction, or if such order is patently erroneous, or

null and void for being contrary to the Constitution, and the remedy of

appeal would not afford adequate and expeditious relief, the accused may

resort to the extraordinary remedy of certiorari.35 A special civil action for

certiorari is also available where there are special circumstances clearly

demonstrating the inadequacy of an appeal. As this Court held in Bristol

Myers Squibb (Phils.), Inc. v. Viloria:36

Nonetheless, the settled rule is that a writ of certiorari may be granted in

cases where, despite availability of appeal after trial, there is at least a prima

facie showing on the face of the petition and its annexes that: (a) the trial

court issued the order with grave abuse of discretion amounting to lack of or

in excess of jurisdiction; (b) appeal would not prove to be a speedy and

adequate remedy; (c) where the order is a patent nullity; (d) the decision in

the present case will arrest future litigations; and (e) for certain

considerations such as public welfare and public policy.37

In his petition for certiorari in the CA, petitioner averred that the trial court

committed grave abuse of its discretion amounting to excess or lack of

jurisdiction when it denied his motion to quash the Amended Information

despite his claim that the material allegations in the Amended Information

do not charge theft under Article 308 of the Revised Penal Code, or any

offense for that matter. By so doing, the trial court deprived him of his

constitutional right to be informed of the nature of the charge against him.

He further averred that the order of the trial court is contrary to the

constitution and is, thus, null and void. He insists that he should not be

compelled to undergo the rigors and tribulations of a protracted trial and

incur expenses to defend himself against a non-existent charge.

Petitioner is correct.

An information or complaint must state explicitly and directly every act or

omission constituting an offense38 and must allege facts establishing

conduct that a penal statute makes criminal;39 and describes the property

which is the subject of theft to advise the accused with reasonable certainty

of the accusation he is called upon to meet at the trial and to enable him to

rely on the judgment thereunder of a subsequent prosecution for the same

offense.40 It must show, on its face, that if the alleged facts are true, an










offense has been committed. The rule is rooted on the constitutional right of

the accused to be informed of the nature of the crime or cause of the

accusation against him. He cannot be convicted of an offense even if proven

unless it is alleged or necessarily included in the Information filed against

him.

As a general prerequisite, a motion to quash on the ground that the

Information does not constitute the offense charged, or any offense for that

matter, should be resolved on the basis of said allegations whose truth and

veracity are hypothetically committed;41 and on additional facts admitted or

not denied by the prosecution.42 If the facts alleged in the Information do

not constitute an offense, the complaint or information should be quashed

by the court.43

We have reviewed the Amended Information and find that, as mentioned by

the petitioner, it does not contain material allegations charging the petitioner

of theft of personal property under Article 308 of the Revised Penal Code.

It, thus, behooved the trial court to quash the Amended Information. The

Order of the trial court denying the motion of the petitioner to quash the

Amended Information is a patent nullity.

On the second issue, we find and so hold that the international telephone

calls placed by Bay Super Orient Card holders, the telecommunication

services provided by PLDT and its business of providing said services are

not personal properties under Article 308 of the Revised Penal Code. The

construction by the respondents of Article 308 of the said Code to include,

within its coverage, the aforesaid international telephone calls,

telecommunication services and business is contrary to the letter and intent

of the law.

The rule is that, penal laws are to be construed strictly. Such rule is founded

on the tenderness of the law for the rights of individuals and on the plain

principle that the power of punishment is vested in Congress, not in the

judicial department. It is Congress, not the Court, which is to define a

crime, and ordain its punishment.44 Due respect for the prerogative of

Congress in defining crimes/felonies constrains the Court to refrain from a

broad interpretation of penal laws where a "narrow interpretation" is

appropriate. The Court must take heed to language, legislative history and

purpose, in order to strictly determine the wrath and breath of the conduct

the law forbids.45 However, when the congressional purpose is unclear, the

court must apply the rule of lenity, that is, ambiguity concerning the ambit

of criminal statutes should be resolved in favor of lenity.46

Penal statutes may not be enlarged by implication or intent beyond the fair

meaning of the language used; and may not be held to include offenses

other than those which are clearly described, notwithstanding that the Court

may think that Congress should have made them more comprehensive.47

Words and phrases in a statute are to be construed according to their

common meaning and accepted usage.

As Chief Justice John Marshall declared, "it would be dangerous, indeed, to

carry the principle that a case which is within the reason or

mischief of a statute is within its provision, so far as to punish a crime not

enumerated in the statute because it is of equal atrocity, or of kindred

character with those which are enumerated.48 When interpreting a criminal

statute that does not explicitly reach the conduct in question, the Court

should not base an expansive reading on inferences from subjective and

variable understanding.49

Article 308 of the Revised Penal Code defines theft as follows:

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

latter’s consent.

The provision was taken from Article 530 of the Spanish Penal Code which

reads:

1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las

personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la

voluntad de su dueño.50

For one to be guilty of theft, the accused must have an intent to steal

(animus furandi) personal property, meaning the intent to deprive another of

his ownership/lawful possession of personal property which intent is apart

from and concurrently with the general criminal intent which is an essential

element of a felony of dolo (dolus malus).

An information or complaint for simple theft must allege the following

elements: (a) the taking of personal property; (b) the said property belongs

to another; (c) the taking be done with intent to gain; and (d) the taking be

accomplished without the use of violence or intimidation of person/s or

force upon things.51

One is apt to conclude that "personal property" standing alone, covers both

tangible and intangible properties and are subject of theft under the Revised

Penal Code. But the words "Personal property" under the Revised Penal

Code must be considered in tandem with the word "take" in the law. The

statutory definition of "taking" and movable property indicates that, clearly,

not all personal properties may be the proper subjects of theft. The general

rule is that, only movable properties which have physical or material

existence and susceptible of occupation by another are proper objects of













theft.52 As explained by Cuelo Callon: "Cosa juridicamente es toda

sustancia corporal, material, susceptible de ser aprehendida que tenga un

valor cualquiera."53

According to Cuello Callon, in the context of the Penal Code, only those

movable properties which can be taken and carried from the place they are

found are proper subjects of theft. Intangible properties such as rights and

ideas are not subject of theft because the same cannot be "taken" from the

place it is found and is occupied or appropriated.

Solamente las cosas muebles y corporales pueden ser objeto de hurto. La

sustracción de cosas inmuebles y la cosas incorporales (v. gr., los derechos,

las ideas) no puede integrar este delito, pues no es posible asirlas, tomarlas,

para conseguir su apropiación. El Codigo emplea la expresión "cosas

mueble" en el sentido de cosa que es susceptible de ser llevada del lugar

donde se encuentra, como dinero, joyas, ropas, etcétera, asi que su concepto

no coincide por completo con el formulado por el Codigo civil (arts. 335 y

336).54

Thus, movable properties under Article 308 of the Revised Penal Code

should be distinguished from the rights or interests to which they relate. A

naked right existing merely in contemplation of law, although it may be

very valuable to the person who is entitled to exercise it, is not the subject

of theft or larceny.55 Such rights or interests are intangible and cannot be

"taken" by another. Thus, right to produce oil, good will or an interest in

business, or the right to engage in business, credit or franchise are

properties. So is the credit line represented by a credit card. However, they

are not proper subjects of theft or larceny because they are without form or

substance, the mere "breath" of the Congress. On the other hand, goods,

wares and merchandise of businessmen and credit cards issued to them are

movable properties with physical and material existence and may be taken

by another; hence, proper subjects of theft.

There is "taking" of personal property, and theft is consummated when the

offender unlawfully acquires possession of personal property even if for a

short time; or if such property is under the dominion and control of the

thief. The taker, at some particular amount, must have obtained complete

and absolute possession and control of the property adverse to the rights of

the owner or the lawful possessor thereof.56 It is not necessary that the

property be actually carried away out of the physical possession of the

lawful possessor or that he should have made his escape with it.57 Neither

asportation nor actual manual possession of property is required.

Constructive possession of the thief of the property is enough.58

The essence of the element is the taking of a thing out of the possession of

the owner without his privity and consent and without animus revertendi.59

Taking may be by the offender’s own hands, by his use of innocent persons

without any felonious intent, as well as any mechanical device, such as an

access device or card, or any agency, animate or inanimate, with intent to

gain. Intent to gain includes the unlawful taking of personal property for the

purpose of deriving utility, satisfaction, enjoyment and pleasure.60

We agree with the contention of the respondents that intangible properties

such as electrical energy and gas are proper subjects of theft. The reason for

this is that, as explained by this Court in United States v. Carlos61 and

United States v. Tambunting,62 based on decisions of the Supreme Court of

Spain and of the courts in England and the United States of America, gas or

electricity are capable of appropriation by another other than the owner. Gas

and electrical energy may be taken, carried away and appropriated. In

People v. Menagas,63 the Illinois State Supreme Court declared that

electricity, like gas, may be seen and felt. Electricity, the same as gas, is a

valuable article of merchandise, bought and sold like other personal

property and is capable of appropriation by another. It is a valuable article

of merchandise, bought and sold like other personal property, susceptible of

being severed from a mass or larger quantity and of being transported from

place to place. Electrical energy may, likewise, be taken and carried away.

It is a valuable commodity, bought and sold like other personal property. It

may be transported from place to place. There is nothing in the nature of gas

used for illuminating purposes which renders it incapable of being

feloniously taken and carried away.

In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of

Appeals of New York held that electric energy is manufactured and sold in

determinate quantities at a fixed price, precisely as are coal, kerosene oil,

and gas. It may be conveyed to the premises of the consumer, stored in cells

of different capacity known as an accumulator; or it may be sent through a

wire, just as gas or oil may be transported either in a close tank or forced

through a pipe. Having reached the premises of the consumer, it may be

used in any way he may desire, being, like illuminating gas, capable of

being transformed either into heat, light, or power, at the option of the

purchaser. In Woods v. People,65 the Supreme Court of Illinois declared that

there is nothing in the nature of gas used for illuminating purposes which

renders it incapable of being feloniously taken and carried away. It is a

valuable article of merchandise, bought and sold like other personal

property, susceptible of being severed from a mass or larger quantity and of

being transported from place to place.
















Gas and electrical energy should not be equated with business or services

provided by business entrepreneurs to the public. Business does not have an

exact definition. Business is referred as that which occupies the time,

attention and labor of men for the purpose of livelihood or profit. It

embraces everything that which a person can be employed.66 Business may

also mean employment, occupation or profession. Business is also defined

as a commercial activity for gain benefit or advantage.67 Business, like

services in business, although are properties, are not proper subjects of theft

under the Revised Penal Code because the same cannot be "taken" or

"occupied." If it were otherwise, as claimed by the respondents, there would

be no juridical difference between the taking of the business of a person or

the services provided by him for gain, vis-à-vis, the taking of goods, wares

or merchandise, or equipment comprising his business.68 If it was its

intention to include "business" as personal property under Article 308 of the

Revised Penal Code, the Philippine Legislature should have spoken in

language that is clear and definite: that business is personal property under

Article 308 of the Revised Penal Code.69

We agree with the contention of the petitioner that, as gleaned from the

material averments of the Amended Information, he is charged of "stealing

the international long distance calls belonging to PLDT" and the use

thereof, through the ISR. Contrary to the claims of the OSG and respondent

PLDT, the petitioner is not charged of stealing P20,370,651.95 from said

respondent. Said amount of P20,370,651.95 alleged in the Amended

Information is the aggregate amount of access, transmission or termination

charges which the PLDT expected from the international long distance calls

of the callers with the use of Baynet Super Orient Cards sold by Baynet Co.

Ltd.

In defining theft, under Article 308 of the Revised Penal Code, as the taking

of personal property without the consent of the owner thereof, the

Philippine legislature could not have contemplated the human voice which

is converted into electronic impulses or electrical current which are

transmitted to the party called through the PSTN of respondent PLDT and

the ISR of Baynet Card Ltd. within its coverage. When the Revised Penal

Code was approved, on December 8, 1930, international telephone calls and

the transmission and routing of electronic voice signals or impulses

emanating from said calls, through the PSTN, IPL and ISR, were still non-

existent. Case law is that, where a legislative history fails to evidence

congressional awareness of the scope of the statute claimed by the

respondents, a narrow interpretation of the law is more consistent with the

usual approach to the construction of the statute. Penal responsibility cannot

be extended beyond the fair scope of the statutory mandate.70

Respondent PLDT does not acquire possession, much less, ownership of the

voices of the telephone callers or of the electronic voice signals or current

emanating from said calls. The human voice and the electronic voice signals

or current caused thereby are intangible and not susceptible of possession,

occupation or appropriation by the respondent PLDT or even the petitioner,

for that matter. PLDT merely transmits the electronic voice signals through

its facilities and equipment. Baynet Card Ltd., through its operator, merely

intercepts, reroutes the calls and passes them to its toll center. Indeed, the

parties called receive the telephone calls from Japan.

In this modern age of technology, telecommunications systems have

become so tightly merged with computer systems that it is difficult to know

where one starts and the other finishes. The telephone set is highly

computerized and allows computers to communicate across long

distances.71 The instrumentality at issue in this case is not merely a

telephone but a telephone inexplicably linked to a computerized

communications system with the use of Baynet Cards sold by the Baynet

Card Ltd. The corporation uses computers, modems and software, among

others, for its ISR.72

The conduct complained of by respondent PLDT is reminiscent of

"phreaking" (a slang term for the action of making a telephone system to do

something that it normally should not allow by "making the phone company

bend over and grab its ankles"). A "phreaker" is one who engages in the act

of manipulating phones and illegally markets telephone services.73 Unless

the phone company replaces all its hardware, phreaking would be

impossible to stop. The phone companies in North America were impelled

to replace all their hardware and adopted full digital switching system

known as the Common Channel Inter Office Signaling. Phreaking occurred

only during the 1960’s and 1970’s, decades after the Revised Penal Code

took effect.

The petitioner is not charged, under the Amended Information, for theft of

telecommunication or telephone services offered by PLDT. Even if he is,

the term "personal property" under Article 308 of the Revised Penal Code

cannot be interpreted beyond its seams so as to include "telecommunication

or telephone services" or computer services for that matter. The word

"service" has a variety of meanings dependent upon the context, or the

sense in which it is used; and, in some instances, it may include a sale. For

instance, the sale of food by restaurants is usually referred to as "service,"

although an actual sale is involved.74 It may also mean the duty or labor to











be rendered by one person to another; performance of labor for the benefit

of another.75 In the case of PLDT, it is to render local and international

telecommunications services and such other services as authorized by the

CPCA issued by the NTC. Even at common law, neither time nor services

may be taken and occupied or appropriated.76 A service is generally not

considered property and a theft of service would not, therefore, constitute

theft since there can be no caption or asportation.77 Neither is the

unauthorized use of the equipment and facilities of PLDT by the petitioner

theft under the aforequoted provision of the Revised Penal Code.78

If it was the intent of the Philippine Legislature, in 1930, to include services

to be the subject of theft, it should have incorporated the same in Article

308 of the Revised Penal Code. The Legislature did not. In fact, the Revised

Penal Code does not even contain a definition of services.

If taking of telecommunication services or the business of a person, is to be

proscribed, it must be by special statute79 or an amendment of the Revised

Penal Code. Several states in the United States, such as New York, New

Jersey, California and Virginia, realized that their criminal statutes did not

contain any provisions penalizing the theft of services and passed laws

defining and penalizing theft of telephone and computer services. The

Pennsylvania Criminal Statute now penalizes theft of services, thus:

(a) Acquisition of services. --

(1) A person is guilty of theft if he intentionally obtains services for himself

or for another which he knows are available only for compensation, by

deception or threat, by altering or tampering with the public utility meter or

measuring device by which such services are delivered or by causing or

permitting such altering or tampering, by making or maintaining any

unauthorized connection, whether physically, electrically or inductively, to

a distribution or transmission line, by attaching or maintaining the

attachment of any unauthorized device to any cable, wire or other

component of an electric, telephone or cable television system or to a

television receiving set connected to a cable television system, by making

or maintaining any unauthorized modification or alteration to any device

installed by a cable television system, or by false token or other trick or

artifice to avoid payment for the service.

In the State of Illinois in the United States of America, theft of labor or

services or use of property is penalized:

(a) A person commits theft when he obtains the temporary use of property,

labor or services of another which are available only for hire, by means of

threat or deception or knowing that such use is without the consent of the

person providing the property, labor or services.

In 1980, the drafters of the Model Penal Code in the United States of

America arrived at the conclusion that labor and services, including

professional services, have not been included within the traditional scope of

the term "property" in ordinary theft statutes. Hence, they decided to

incorporate in the Code Section 223.7, which defines and penalizes theft of

services, thus:

(1) A person is guilty of theft if he purposely obtains services which he

knows are available only for compensation, by deception or threat, or by

false token or other means to avoid payment for the service. "Services"

include labor, professional service, transportation, telephone or other public

service, accommodation in hotels, restaurants or elsewhere, admission to

exhibitions, use of vehicles or other movable property. Where compensation

for service is ordinarily paid immediately upon the rendering of such

service, as in the case of hotels and restaurants, refusal to pay or absconding

without payment or offer to pay gives rise to a presumption that the service

was obtained by deception as to intention to pay; (2) A person commits

theft if, having control over the disposition of services of others, to which

he is not entitled, he knowingly diverts such services to his own benefit or

to the benefit of another not entitled thereto.

Interestingly, after the State Supreme Court of Virginia promulgated its

decision in Lund v. Commonwealth,80 declaring that neither time nor

services may be taken and carried away and are not proper subjects of

larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which

reads:

Computer time or services or data processing services or information or

data stored in connection therewith is hereby defined to be property which

may be the subject of larceny under § § 18.2-95 or 18.2-96, or

embezzlement under § 18.2-111, or false pretenses under § 18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of

Alabama of 1975 penalizes theft of services:

"A person commits the crime of theft of services if: (a) He intentionally

obtains services known by him to be available only for compensation by

deception, threat, false token or other means to avoid payment for the

services …"

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, Republic Act No. 8484, otherwise known as the Access Devices

Regulation Act of 1998, on February 11, 1998. Under the law, an access

device means any card, plate, code, account number, electronic serial

number, personal identification number and other telecommunication








services, equipment or instrumentalities-identifier or other means of account

access that can be used to obtain money, goods, services or any other thing

of value or to initiate a transfer of funds other than a transfer originated

solely by paper instrument. Among the prohibited acts enumerated in

Section 9 of the law are the acts of obtaining money or anything of value

through the use of an access device, with intent to defraud or intent to gain

and fleeing thereafter; and of effecting transactions with one or more access

devices issued to another person or persons to receive payment or any other

thing of value. Under Section 11 of the law, conspiracy to commit access

devices fraud is a crime. However, the petitioner is not charged of violation

of R.A. 8484.

Significantly, a prosecution under the law shall be without prejudice to any

liability for violation of any provisions of the Revised Penal Code inclusive

of theft under Rule 308 of the Revised Penal Code and estafa under Article

315 of the Revised Penal Code. Thus, if an individual steals a credit card

and uses the same to obtain services, he is liable of the following: theft of

the credit card under Article 308 of the Revised Penal Code; violation of

Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised

Penal Code with the service provider as the private complainant. The

petitioner is not charged of estafa before the RTC in the Amended

Information.

Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000

provides:

Sec. 33. Penalties.— The following Acts shall be penalized by fine and/or

imprisonment, as follows:

a) Hacking or cracking which refers to unauthorized access into or

interference in a computer system/server or information and communication

system; or any access in order to corrupt, alter, steal, or destroy using a

computer or other similar information and communication devices, without

the knowledge and consent of the owner of the computer or information and

communications system, including the introduction of computer viruses and

the like, resulting on the corruption, destruction, alteration, theft or loss of

electronic data messages or electronic documents shall be punished by a

minimum fine of One hundred thousand pesos (P100,000.00) and a

maximum commensurate to the damage incurred and a mandatory

imprisonment of six (6) months to three (3) years.

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.

MARK SOLEDAD y CRISTOBAL,

- versus -

PEOPLE OF THE PHILIPPINES,

February 23, 2011

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court, seeking to reverse and set aside the Court of Appeals (CA)

Decision[1] dated June 18, 2008 and Resolution[2] dated August 22, 2008

in CA-G.R. CR. No. 30603. The assailed Decision affirmed with

modification the September 27, 2006 decision[3] of the Regional Trial

Court (RTC), Branch 202, Las Pias City, finding petitioner Mark C.

Soledad guilty beyond reasonable doubt of Violation of Section 9(e),

Republic Act (R.A.) No. 8484, or the Access Devices Regulations Act of

1998; while the assailed Resolution denied petitioners motion for

reconsideration.

The facts of the case, as narrated by the CA, are as follows:

Sometime in June 2004, private complainant Henry C. Yu received a call on

his mobile phone from a certain Tess or Juliet Villar (later identified as

Rochelle Bagaporo), a credit card agent, who offered a Citifinancing loan

assistance at a low interest rate. Enticed by the offer, private complainant

invited Rochelle Bagaporo to go to his office in Quezon City. While in his

office, Rochelle Bagaporo indorsed private complainant to her immediate

boss, a certain Arthur [later identified as petitioner]. In their telephone

conversation, [petitioner] told private complainant to submit documents to a

certain Carlo (later identified as Ronald Gobenchiong). Private complainant


submitted various documents, such as his Globe handyphone original

platinum gold card, identification cards and statements of accounts.

Subsequently, private complainant followed up his loan status but he failed

to get in touch with either [petitioner] or Ronald Gobenchiong.

During the first week of August 2004, private complainant received his

Globe handyphone statement of account wherein he was charged for two (2)

mobile phone numbers which were not his. Upon verification with the

phone company, private complainant learned that he had additional five (5)

mobile numbers in his name, and the application for said cellular phone

lines bore the picture of [petitioner] and his forged signature. Private

complainant also checked with credit card companies and learned that his

Citibank Credit Card database information was altered and he had a credit

card application with Metrobank Card Corporation (Metrobank).

Thereafter, private complainant and Metrobanks junior assistant manager

Jefferson Devilleres lodged a complaint with the National Bureau of

Investigation (NBI) which conducted an entrapment operation.

During the entrapment operation, NBIs Special Investigator (SI) Salvador

Arteche [Arteche], together with some other NBI operatives, arrived in Las

Pias around 5:00 P.M. [Arteche] posed as the delivery boy of the

Metrobank credit card. Upon reaching the address written on the delivery

receipt, [Arteche] asked for Henry Yu. [Petitioner] responded that he was

Henry Yu and presented to [Arteche] two (2) identification cards which

bore the name and signature of private complainant, while the picture

showed the face of [petitioner]. [Petitioner] signed the delivery receipt.

Thereupon, [Arteche] introduced himself as an NBI operative and

apprehended [petitioner]. [Arteche] recovered from [petitioner] the two (2)

identification cards he presented to [Arteche] earlier.[4]

Petitioner was thus charged with Violation of Section 9(e), R.A. No. 8484

for possessing a counterfeit access device or access device fraudulently

applied for. The accusatory portion of the Information reads:

That on or about the 13th day of August 2004, or prior thereto, in the City

of Las Pias, and within the jurisdiction of this Honorable Court, the above-

named accused, conspiring and confederating with certain Rochelle

Bagaporo a.k.a. Juliet Villar/Tess and a certain Ronald Gobenciong a.k.a.

Carlo and all of them mutually helping and aiding each other, did then and

there willfully, unlawfully and feloniously defraud complainant HENRY

YU by applying a credit card, an access device defined under R.A. 8484,

from METROBANK CARD CORPORATION, using the name of

complainant Henry C. Yu and his personal documents fraudulently obtained

from him, and which credit card in the name of Henry Yu was successfully

issued and delivered to said accused using a fictitious identity and addresses

of Henry Yu, to the damage and prejudice of the real Henry Yu.

CONTRARY TO LAW.[5]

Upon arraignment, petitioner pleaded not guilty. Trial on the merits ensued.

After the presentation of the evidence for the prosecution, petitioner filed a

Demurrer to Evidence, alleging that he was not in physical and legal

possession of the credit card presented and marked in evidence by the

prosecution. In an Order dated May 2, 2006, the RTC denied the Demurrer

to Evidence as it preferred to rule on the merits of the case.[6]

On September 27, 2006, the RTC rendered a decision finding petitioner

guilty as charged, the dispositive portion of which reads:

In the light of the foregoing, the Court finds accused Mark Soledad y

Cristobal a.k.a. Henry Yu, Arthur GUILTY beyond reasonable doubt of

violation of Section 9(e), Republic Act 8484 (Access Device Regulation

Act of 1998). Accordingly, pursuant to Section 10 of Republic Act 8484

and applying the Indeterminate Sentence Law, said accused is hereby

sentenced to suffer an imprisonment penalty of six (6) years of prision

correccional, as minimum, to not more than ten (10) years of prision mayor,

as maximum. Further, accused is also ordered to pay a fine of Ten

Thousand Pesos (P10,000.00) for the offense committed.

SO ORDERED.[7]

On appeal, the CA affirmed petitioners conviction, but modified the penalty

imposed by the RTC by deleting the terms prision correccional and prision

mayor.

Hence, this petition raising the following issues:

(1) Whether or not the Information is valid;


(2) Whether or not the Information charges an offense, or the offense

petitioner was found guilty of;

(3) Whether or not petitioner was sufficiently informed of the nature of

the accusations against him;

(4) Whether or not petitioner was legally in possession of the credit card

subject of the case.[8]

The petition is without merit.

Petitioner was charged with Violation of R.A. No. 8484, specifically

Section 9(e), which reads as follows:

Section 9. Prohibited Acts. The following acts shall constitute access device

fraud and are hereby declared to be unlawful:

x x x x

(e) possessing one or more counterfeit access devices or access devices

fraudulently applied for.

Petitioner assails the validity of the Information and claims that he was not

informed of the accusation against him. He explains that though he was

charged with possession of an access device fraudulently applied for, the act

of possession, which is the gravamen of the offense, was not alleged in the

Information.

We do not agree.

Section 6, Rule 110 of the Rules of Criminal Procedure lays down the

guidelines in determining the sufficiency of a complaint or information. It

states:

SEC. 6. Sufficiency of complaint or information. A complaint or

information is sufficient if it states the name of the accused; the designation

of the offense given by the statute; the acts or omissions complained of as

constituting the offense; the name of the offended party; the approximate

date of the commission of the offense; and the place where the offense was

committed.

In the Information filed before the RTC, it was clearly stated that the

accused is petitioner Mark Soledad y Cristobal a.k.a. Henry Yu/Arthur. It

was also specified in the preamble of the Information that he was being

charged with Violation of R.A. No. 8484, Section 9(e) for possessing a

counterfeit access device or access device fraudulently applied for. In the

accusatory portion thereof, the acts constituting the offense were clearly

narrated in that [petitioner], together with other persons[,] willfully,

unlawfully and feloniously defrauded private complainant by applying [for]

a credit card, an access device defined under R.A. [No.] 8484, from

Metrobank Card Corporation, using the name of complainant Henry C. Yu

and his personal documents fraudulently obtained from him, and which

credit card in the name of Henry Yu was successfully issued, and delivered

to said accused using a fictitious identity and addresses of Henry Yu, to the

damage and prejudice of the real Henry Yu. Moreover, it was identified that

the offended party was private complainant Henry Yu and the crime was

committed on or about the 13th day of August 2004 in the City of Las Pias.

Undoubtedly, the Information contained all the necessary details of the

offense committed, sufficient to apprise petitioner of the nature and cause of

the accusation against him. As aptly argued by respondent People of the

Philippines, through the Office of the Solicitor General, although the word

possession was not used in the accusatory portion of the Information, the

word possessing appeared in its preamble or the first paragraph thereof.

Thus, contrary to petitioners contention, he was apprised that he was being

charged with violation of R.A. No. 8484, specifically section 9(e) thereof,

for possession of the credit card fraudulently applied for.

The Courts discussion in People v. Villanueva[9] on the relationship

between the preamble and the accusatory portion of the Information is

noteworthy, and we quote:

The preamble or opening paragraph should not be treated as a mere

aggroupment of descriptive words and phrases. It is as much an essential

part [of] the Information as the accusatory paragraph itself. The preamble in

fact complements the accusatory paragraph which draws its strength from


the preamble. It lays down the predicate for the charge in general terms;

while the accusatory portion only provides the necessary details. The

preamble and the accusatory paragraph, together, form a complete whole

that gives sense and meaning to the indictment. x x x.

x x x x

Moreover, the opening paragraph bears the operative word accuses, which

sets in motion the constitutional process of notification, and formally makes

the person being charged with the commission of the offense an accused.

Verily, without the opening paragraph, the accusatory portion would be

nothing but a useless and miserably incomplete narration of facts, and the

entire Information would be a functionally sterile charge sheet; thus making

it impossible for the state to prove its case.

The Information sheet must be considered, not by sections or parts, but as

one whole document serving one purpose, i.e., to inform the accused why

the full panoply of state authority is being marshaled against him. Our task

is not to determine whether allegations in an indictment could have been

more artfully and exactly written, but solely to ensure that the constitutional

requirement of notice has been fulfilled x x x.[10]

Besides, even if the word possession was not repeated in the accusatory

portion of the Information, the acts constituting it were clearly described in

the statement [that the] credit card in the name of Henry Yu was

successfully issued, and delivered to said accused using a fictitious identity

and addresses of Henry Yu, to the damage and prejudice of the real Henry

Yu. Without a doubt, petitioner was given the necessary data as to why he

was being prosecuted.

Now on the sufficiency of evidence leading to his conviction.

Petitioner avers that he was never in possession of the subject credit card

because he was arrested immediately after signing the acknowledgement

receipt. Thus, he did not yet know the contents of the envelope delivered

and had no control over the subject credit card.[11]

Again, we find no value in petitioners argument

The trial court convicted petitioner of possession of the credit card

fraudulently applied for, penalized by R.A. No. 8484. The law, however,

does not define the word possession. Thus, we use the term as defined in

Article 523 of the Civil Code, that is, possession is the holding of a thing or

the enjoyment of a right. The acquisition of possession involves two

elements: the corpus or the material holding of the thing, and the animus

possidendi or the intent to possess it.[12] Animus possidendi is a state of

mind, the presence or determination of which is largely dependent on

attendant events in each case. It may be inferred from the prior or

contemporaneous acts of the accused, as well as the surrounding

circumstances.[13

In this case, prior to the commission of the crime, petitioner fraudulently

obtained from private complainant various documents showing the latters

identity. He, thereafter, obtained cellular phones using private complainants

identity. Undaunted, he fraudulently applied for a credit card under the

name and personal circumstances of private complainant. Upon the delivery

of the credit card applied for, the messenger (an NBI agent) required two

valid identification cards. Petitioner thus showed two identification cards

with his picture on them, but bearing the name and forged signature of

private complainant. As evidence of the receipt of the envelope delivered,

petitioner signed the acknowledgment receipt shown by the messenger,

indicating therein that the content of the envelope was the Metrobank credit

card.

Petitioner materially held the envelope containing the credit card with the

intent to possess. Contrary to petitioners contention that the credit card

never came into his possession because it was only delivered to him, the

above narration shows that he, in fact, did an active part in acquiring

possession by presenting the identification cards purportedly showing his

identity as Henry Yu. Certainly, he had the intention to possess the same.

Had he not actively participated, the envelope would not have been given to

him. Moreover, his signature on the acknowledgment receipt indicates that

there was delivery and that possession was transferred to him as the

recipient. Undoubtedly, petitioner knew that the envelope contained the

Metrobank credit card, as clearly indicated in the acknowledgment receipt,

coupled with the fact that he applied for it using the identity of private

complainant.


Lastly, we find no reason to alter the penalty imposed by the RTC as

modified by the CA. Section 10 of R.A. No. 8484 prescribes the penalty of

imprisonment for not less than six (6) years and not more than ten (10)

years, and a fine of P10,000.00 or twice the value of the access device

obtained, whichever is greater. Thus, the CA aptly affirmed the imposition

of the indeterminate penalty of six years to not more than ten years

imprisonment, and a fine of P10,000.00.

WHEREFORE, premises considered, the petition is DENIED for lack of

merit. The Court of Appeals Decision dated June 18, 2008 and Resolution

dated August 22, 2008 in CA-G.R. CR. No. 30603 are AFFIRMED.

SO ORDERED.

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