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.
Theft: 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.
Taking - if bulky, must be taken away(when place surrounded by
fence or wall), otherwise, the moment he had full possession of
thing, asportation is complete; does not need a character of
Intent to Gain – taking must be accompanied by intention, at the
time of taking, of withholding the thing with character of
permanency; presumed from unlawful taking of personal property of
Gain desired by the offender may not only be money. It may include
satisfaction, use, pleasure or any benefit; includes satisfaction
of taking revenge
It is not required that the offender realized actual gain in
committing theft. It is sufficient that he took personal property
of another with intent to gain.
Trust, Commission, Administration: Juridical possession of thing
transferred to another
If only custody of object (i.e. only material possession) was given
to the accused and it is actually taken by him with no intent to
return, the crime is theft. But if juridical possession is
transferred (Ex., by a contract of bailment) is given to the accused
and he takes the property with intent to gain, the crime is estafa.
Personal property: includes electricity and gas, promissory note and
check. Ex. the inspector misreads the meter to profit thereby, or
one using a jumper
Consent: freely given and not merely lack of objection
Allegation in the information of the lack of the owner’s consent
Finder: may be a finder in law
Theft is consummated when the offender is able to place the thing
taken under his control and in such a situation as he could dispose
of it at once (although there is actually no opportunity to dispose).
Servant using his employer’s car without permission is guilty of
qualified theft although his use thereof was only temporary.
However, Reyes says that there must be some character of
permanency in depriving owner of the use of the object and making
himself the owner. Therefore, “joyride” must be deemed as
An employee taking his salary before it is actually
delivered to him is guilty of theft.
If the offender, in good faith, claims property as his own, no theft
is committed although his claim of ownership is later found to be
untrue. However, if his claim is in bad faith, he is guilty of theft.
PERSONS LIABLE FOR THEFT:
1. Those who:
a. with intent to gain,
b. but w/o violence against or intimidation of persons nor force
d. personal property
e. of another
f. w/o the latter’s consent.
2. Those who:
a. having found lost property,
b. fail to deliver the same to the local authorities or its owner.
Retention of money/property found is theft. What is punished is
retention or failure to return with intent to gain.
The offender’s knowledge of the identity of the owner of the
property is not required. His knowledge that the property is
lost is enough.
The finder of the lost property is liable for his deliberate
failure to return the lost property, he knowing that the
property does not belong to him.
3. Those who:
a. after having maliciously damaged the property of another,
b. remove or make use of the fruits or object of the damage
caused by them.
Killing the cattle of another which destroyed his(offender’s)
property and getting meat for himself is theft.
4. Those who hunting, fishing or gathering fruits, etc. in enclosed
ELEMENTS(Par. 3 of Art 308):
1. That there is an enclosed estate or a field where trespass is
forbidden or which belongs to another;
2. That the offender enters the same;
3. That the offender hunts or fishes upon the same or gathers fruits,
cereals or other forest or farm products in the estate or field; and
4. That the hunting or fishing or gathering of products is without the
consent of the owner.
The fishing in this article is not in the fishpond or fishery. If the
fish is taken from a fishpond or a fishery, the crime is qualified theft.
Valenzuela v. People (June 2007)
There is no frustrated theft because of the definition of theft in
Art 308. The offender has either complete control of the property
(consummated) or without (attempted)
There is “taking” even if the offender received the thing from
the offended party.
If juridical possession of thing was transferred as opposed to
physical possession and thing was appropriated the crime is
ESTAFA not theft
Selling share of a partner or co-owner is not theft.
Employee is not the owner of separation pay which is not
actually delivered to him.
Actual or real gain is not necessary in theft.
The consent contemplated in the element of theft refers to
consent freely given and not mere lack of opposition by owner
of the property taken.
It is not robbery when violence is for a reason entirely
foreign to the fact of taking.
People v. Gulinao
1. Gulinao shot Dr. Chua & left. Then he went back & took Dr. Chua’s
2. The crime was Theft and not robbery as the taking of the ring was
just an afterthought.
Violence used in killing Dr. Chua had no bearing on the taking
of the ring.
One in possession of part of recently stolen property is presumed
to be thief of all.
Lost property - embraces loss by stealing or by act of he owner or
by a person other than the owner, or through some casual occurrence.