Dear Atty. Joji,

Last weekend, my cousin caught a man attempting to steal his motorcycle that was parked outside their house. The man had already managed to start the engine, but before he could leave, my cousin and several neighbors chased and apprehended him. The barangay officials were immediately called, and the police later took custody of the suspect. The motorcycle was not taken away and remained undamaged. Can we still file a case for attempted theft, even though the motorcycle was not successfully stolen?

Marhan

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Dear Marhan,

Article 308 of the Revised Penal Code defines theft as that which is committed by any person, who with intent to gain but without violence, against or intimidation of persons nor force upon things, shall take the personal property of another without the latter’s consent.

The elements of the crime of theft are: (1) there was taking of personal property; (2) the said property belongs to another; (3) the taking was done without the consent of the owner; (4) the taking was with intent to gain; and (5) the taking was done without violence or intimidation against persons, or force upon things.

From the facts you presented, all the elements of theft were present. In a case the Supreme Court ruled that the return of the thing is immaterial and the crime of theft was still consummated.

In Villacorta v. Insurance Commission⁵⁵ which was reiterated in Association of Baptists for World Evangelism, Inc. v. Fieldmen’s Insurance Co Inc.,⁵⁶ the Honorable Supreme Court, explained that, when one takes the motor vehicle of another without the latter’s consent even if the motor vehicle is later returned, there is theft, there being intent to gain as the use of the thing unlawfully taken constitutes gain:

Assuming, despite the totally inadequate evidence, that the taking was “temporary” and for a “joy ride,” the Court sustains as the better view that which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure.

Hope this helps.

Atty. Joji Alonso