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 is important.

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 qualified theft.

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.

1. Those who:
a. with intent to gain,
b. but w/o violence against or intimidation of persons nor force upon things
c. take
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 estate

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 diamond ring.
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.

Bar Exam Question (1998)

Theft (1998)

Mario found a watch in a jeep he was riding, and since it did not belong to him, he approached policeman P and delivered the watch with instruction to return the same to whoever may be found to be the owner.

P failed to return the watch to the owner and, instead, sold it and appropriated for himself the proceeds of the sale.

Charged with theft, P reasoned out that he cannot be found guilty because it was not he who found the watch and, moreover, the watch turned out to be stolen property. Is P's defense valid? 

Suggested Answer:

No, P's defense is not valid. In a charge for theft, it is enough that the personal property subject thereof belongs to another and not to the offender (P). It is irrelevant whether the person deprived of the possession of the watch has or has no right to the watch. Theft is committed by one who, with intent to gain, appropriates property of another without the consent of its owner. And the crime is committed even when the offender receives property of another but acquires only physical possession to hold the same.

Bar Exam Question (2001)

Theft (2001)

Francis Garcia, a Jollibee waiter, found a gold bracelet in front of his working place in Makati and, upon inspecting it, saw the name and address of the owner engraved on the inside. Remembering his parents' admonition that he should not take anything which does not belong to him, he delivered the bracelet to PO1 Jesus Reyes of the Makati Quad precinct with the instruction to locate the owner and return it to him. PO1 Reyes, instead, sold the bracelet and misappropriated the proceeds. Subsequent events brought out the fact that the bracelet was dropped by a snatcher who had grabbed it from the owner a block away from where Francis had found it and further investigation traced the last possessor as PO1 Reyes. Charged with theft, PO1 Reyes reasoned out that he had not committed any crime because it was not he who had found the bracelet and, moreover, it turned out to have been stolen. Resolve the case with reasons. 

Suggested Answer:

Charged with theft, PO1 Reyes is criminally liable. His contention that he has not committed any crime because he was not the one who found the bracelet and it turned out to be stolen also, is devoid of merit. It is enough that the bracelet belonged to another and the failure to restore the same to its owner is characterized by intent to gain. 

The act of PO1 Reyes of selling the bracelet which does not belong to him and which he only held to be delivered to its owner, is furtive misappropriation with intent to gain.

Where a finder of lost or mislaid property entrusts it to another for delivery to the owner, the person to whom such property is entrusted and who accepts the same, assumes the relation of the finder to the owner as if he was the actual finder: if he would misappropriate it, he is guilty of theft (People vs. Avila, 44 Phil. 720).