No ‘frustrated theft’

Dear Atty. Angela,

I am an owner of a grocery store and one evening, a staff was caught by the security guard riding a taxi and was about to take out several boxes of stolen items from the store. We conducted an internal hearing and the staff admitted to his fault stating that he badly needed the money to pay off debt. I intend to file a criminal case of theft against him but since his plan of stealing failed, will this be considered as frustrated theft?

Berna

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Dear Berna,

According to the Supreme Court decision, there is no frustrated stage in theft, it can only be attempted or consummated.

Article 6 of the Revised Penal Code defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated “when all the elements necessary for its execution and accomplishment are present.” It is frustrated “when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.” Finally, it is attempted “when the offender commences the commission of a felony directly by overt acts and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.”

In the case of Valenzuela y Natividad v. People, G.R. 160188 (2007), it was held that unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.

The penalty for consummated theft is prision mayor in its minimum and medium periods. The penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon principals in an attempt to commit a felony.

Atty. Angela Antonio