Frustrated unlawful taking

An accused cannot be convicted of a higher offense than that alleged or necessarily included in the complaint or information filed against him and for which he was tried. It matters not how conclusive and convincing is the evidence of guilt against him. This is the rule applied in this case of Cardo who was charged with the crime of frustrated theft.

Cardo was a promo merchandiser of a distillery company. In his kind of work he met and got acquainted with other merchandisers of different products who were working in a big grocery and retail market. One day, a security guard of the super market saw Cardo approached one of the counters, pushing a cart which contained two boxes of “Magic Flakes” for which he paid P1,400.00.  Upon verification from the packer that the boxes have not been checked yet, the guard and the packer found out upon inspection that the contents of the two boxes were not Magic Flakes but 14 smaller boxes of White Beauty Cream worth P28,000. Upon discovery Cardo hurriedly left but he was chased by the market guards and was caught at the gate when he stumbled as he attempted to ride a jeepney. Upon questioning by the guards, Cardo tried to settle and even offered his personal effects consisting of a Nokia cell phone, a Seiko watch and cash of P2,500 to pay for the items he tried to take away. The personal effects were deposited in the office of the Customer Relations Officer (CRO) but eventually he was nevertheless charged of the crime of frustrated theft.

The Information specifically alleged that “with intent to gain and without the consent of the owner of the super market, Cardo did then and there, willfully, unlawfully and feloniously take, steal and carry away 14 cartons of white beauty cream valued at P28,000 belonging to the super market, thus performing all the acts which would produce the crime of theft as a consequence but, nevertheless did not produce it by reason of some cause independent of the accused’s will.”

During the trial, Cardo raised the defense of denial. He said that he went to the super market only to buy some medicines and mineral water for his wife. But, he said a poor old man approached him and requested him to bring the cart of “Magic Flakes” to the counter and pay for it as he had no more money. Taking pity he said he obliged but as it was being inspected, it was discovered that the boxes contained white cream.  And when caught, he was brought to the 4th floor and was mauled and kicked by one of the guards who also got all his personal effects.

But the Regional Trial Court (RTC) found the version of the prosecution as testified by the security guard and the market CRO more credible. It found Cardo guilty beyond reasonable doubt of consummated theft instead of frustrated theft as there is no such kind of crime. So he was sentenced to suffer imprisonment of 10 years, 8 months as minimum to 14 years, 8 months as maximum.

On appeal by Cardo to the Court of Appeals (CA) said decision of the RTC finding him guilty of consummated theft was affirmed. But it modified the sentence to imprisonment of 2 years, 4 months and 1 day as minimum to 8 years, 8 months and 1 day. Were the RTC and the CA correct in finding him guilty of consummated theft.

According to the Supreme Court Cardo is guilty beyond reasonable doubt, but not of consummated theft.

The allegations in the Information show that Cardo was charged with frustrated theft only. Under the Constitution, to convict him of an offense higher than that charged in the complaint or Information would be an unauthorized denial of his right to be informed of the nature and cause of the accusation against him which requires every element of the crime to be set out in said Information to enable him to suitably prepare for his defense.

Under Article 308 or the Revised Penal Code (RPC), the elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3) the taking was done with intent to gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence against person or force upon things. The unlawful taking which is the deprivation of one’s personal property is the element which produces the felony in its consummated stage. Without the unlawful taking, the offense could only be attempted theft if at all.

In this case, the Information itself stated that the taking have not been accomplished yet since Cardo has not obtained such degree of control over the stolen items as to freely dispose of them. And so, without the unlawful taking, the offense of Cardo can only be attempted theft. He can be convicted only of the lesser crime of attempted theft as there is no crime of frustrated theft. His sentence should thus be reduced to imprisonment ranging from four (4) months as minimum to two (2) years and four (4) months as maximum (Canceran vs. People, G.R. 206442 July 1, 2015).

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