United States vs. Adiao

Theft is consummated, not merely frustrated, when the offender has performed all acts of execution necessary for the crime and has taken material possession of the property with intent to appropriate it, even if he is under observation and fails to remove the property from the premises. Taking advantage of one's public position is an aggravating circumstance.

Tomas Adiao was a customs inspector at the Custom House. T. Murakami was a Japanese from whose baggage the belt was taken. The prosecution was governed by the old Penal Code, which defined frustrated felonies in article 3 and, as cited by the Court, provided the penalty provisions in articles 517 and 518, No. 5.

Tomas Adiao was a customs inspector at the Custom House. T. Murakami was a Japanese whose baggage was at the Custom House. Adiao abstracted a leather belt valued at P0.80 from Murakami's baggage and secreted the belt in his desk in the Custom House. Other customs employees found the belt in the desk.

The defendant was charged with theft. The record showed that he was under observation during the entire transaction and that he was unable to get the merchandise out of the Custom House. The lower court found him guilty of the lesser crime of frustrated theft. On appeal, the Court of First Instance likewise found him guilty of frustrated theft. The Supreme Court examined the evidence and was unable to say that the proof was contrary to the findings of the lower court.

• Sufficiency of the Facts: Appellant assigned as the sole error that the lower court erred in holding that he was guilty of the crime of theft as disclosed by the facts appearing of record.

• Sufficiency of the Evidence: Whether the lower court erred in holding that the defendant was guilty of the crime of theft as disclosed by the facts appearing of record.
• Classification of the Offense: Whether the crime should be classified as frustrated theft or consummated theft under article 3 of the Penal Code.
• Aggravating Circumstance: Whether advantage was taken by the offender of his public position and whether the penalty should be imposed in the maximum degree under articles 517 and 518, No. 5 of the Penal Code.

• Sufficiency of the Evidence: No. The proof was not contrary to the lower court's findings; the defendant committed theft by abstracting the belt and secreting it in his desk.
• Classification of the Offense: Consummated theft, not frustrated theft. The offender performed all acts of execution necessary for the accomplishment of theft, and all elements of the completed crime were present despite observation and inability to remove the merchandise.
• Aggravating Circumstance: Yes. Advantage was taken by the offender of his public position; with no mitigating circumstance, the penalty was imposed in the maximum degree under articles 517 and 518, No. 5 of the Penal Code.

• Sufficiency of the Evidence: The Supreme Court examined the evidence carefully and was unable to say that the proof was contrary to the findings of the lower court. The defendant, a customs inspector, abstracted a leather belt valued at P0.80 from the baggage of T. Murakami and secreted it in his desk in the Custom House, where other customs employees found it. The facts therefore supported a conviction for theft.
• Classification of the Offense: Under article 3 of the Penal Code, the crime could not properly be classified as frustrated because the offender performed all of the acts of execution necessary for the accomplishment of theft. The fact that the defendant was under observation during the entire transaction and was unable to get the merchandise out of the Custom House was not decisive; all the elements of the completed crime of theft were present. The Court relied on decisions of the Supreme Court of Spain: the fruit theft case (October 14, 1898), where consummated theft was found because nothing showed the policemen arrested the accused in the act and prevented full possession or utilization; the pocket-picking case (December 1, 1897), where the victim noticed the theft but did not prevent it and the money was recovered while the accused was still inside the church, yet the theft was consummated because all acts of execution had been performed; and the robbery case (June 13, 1882), where the accused took material possession of the money with intent to appropriate it before being caught by guards, making the robbery consummated and only its use frustrated.
• Aggravating Circumstance: The Court found that there existed the aggravating circumstance that advantage was taken by the offender of his public position. In view of articles 517 and 518, No. 5, of the Penal Code, and there being one aggravating circumstance compensated by no mitigating circumstance, the penalty had to be imposed in the maximum degree. The judgment was accordingly reversed and the defendant sentenced to three months and one day of arresto mayor, with costs.

• Consummated Theft — Theft is consummated when the offender performs all acts of execution necessary for the accomplishment of the crime and takes material possession of the thing with intent to appropriate it. Observation by others and the offender's inability to remove the property from the premises do not reduce the offense to frustrated theft. Applied: Adiao's abstraction of the belt and secretion in his desk completed theft despite his being under observation and unable to take the belt out of the Custom House.
• Aggravating Circumstance of Taking Advantage of Public Position — A public officer who takes advantage of his position to commit theft is subject to an aggravating circumstance. Where no mitigating circumstance compensates for it, the penalty must be imposed in the maximum degree. Applied: Adiao, a customs inspector, took advantage of his public position; the Court imposed the maximum penalty under articles 517 and 518, No. 5 of the Penal Code.

• "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." — This states the ratio for holding the theft consummated despite observation and non-removal of the stolen item.
• "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." — This is the Court's classification of the offense and its application of article 3 of the Penal Code.
• "There exists the aggravating circumstance that advantage was taken by the offender of his public position." — This identifies the aggravating circumstance that led to the maximum penalty.
• "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." — This is the dispositive portion of the decision.

• Decision of the Supreme Court of Spain, October 14, 1898 — Cited for consummated theft where the accused took fruit from another's land and was seen by a policeman but not arrested in the act; no showing appeared that he was prevented from taking full possession or utilizing the thing.
• Decision of the Supreme Court of Spain, December 1, 1897 — Cited for consummated theft where the accused picked a pocket during mass; the victim noticed but did not prevent the theft, and the money was recovered while the accused was still inside the church; all acts of execution had been performed.
• Decision of the Supreme Court of Spain, June 13, 1882 — Cited for consummated robbery where the accused took a purse and placed the money over the cover of a case before being caught by guards; material possession with intent to appropriate completed the crime, and only the use of the thing was frustrated.

• Article 3, Penal Code — Defines frustrated felony. The Court used it to hold that the theft could not be classified as frustrated because the offender performed all acts of execution necessary for the accomplishment of theft.
• Articles 517 and 518, No. 5, Penal Code — Cited by the Court in imposing the penalty. Because advantage was taken by the offender of his public position and no mitigating circumstance was present, the penalty was imposed in the maximum degree.

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