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G.R. No. 6295 September 1, 1911

THE UNITED STATES, plaintiff-appellee,vs.IGNACIO CARLOS, defendant-appellant.

A. D. Gibbs for appellant. Acting Attorney-General Harvey for appellee.

PER CURIAM:

The information filed in this case is as follows:

The undersigned accuses Ignacio Carlos of the crime of theft, committed as follows:

That on, during, and between the 13th day of February, 1909, and the 3d day of March, 1910, in thecity of Manila, Philippine Islands, the said Ignacio Carlos, with intent of gain and without violence orintimidation against the person or force against the thing, did then and there, willfully, unlawfully, andfeloniously, take, steal , and carry away two thousand two hundred and seventy-three (2,273) kilowattsof electric current, of the value of nine hundred and nine (909) pesos and twenty (20) cents Philippinecurrency, the property of the Manila Electric Railroad and L ight Company, a corporation doing businessin the Philippine Islands, without the consent of the owner thereof; to the damage and prejudice of thesaid Manila Electric Railroad and Light Company in the said sum of nine hundred and nine (909) pesosand twenty (20) cents Philippine currency, equal to and equivalent of 4,546 pesetas Philippinecurrency. All contrary to law.

(Sgd.) L. M. SOUTWORTH,Prosecuting Attorney.

Subscribed and sworn to before me this 4th day of March, 1910, in the city of Manila, PhilippineIslands, by L. M. Southworth, prosecuting attorney for the city of Manila.

(Sgd.) CHARLES S. LOBINGIER, Judge, First Instance.

A preliminary investigation has heretofore been conducted in this case, under my direction, havingexamined the witness under oath, in accordance with the provisions of section 39 of Act No. 183 of thePhilippine Commission, as amended by section 2 of Act No. 612 of the Philippine Commission.

(Sgd) L. M. SOUTHWORTH,Prosecuting Attorney.

Subscribed and sworn to before me this 4th day of March, 1910, in the city of Manila, PhilippineIslands, by L. M. Southworth, prosecuting attorney for the city of Manila.

(Sgd.) CHARLES LOBINGIER, Judge, First Instance.

A warrant for the arrest of the defendant was issued by the Honorable J. C. Jenkins on the 4th of March anplaced in the hands of the sheriff. The sheriff's return shows that the defendant gave bond for his appearanOn the 14th of the same month co unsel for the defendant demurrer to the complaint on the fo llowing grou

1 That the court has no jurisdiction over the person of the accused nor of the offense charged becthe accused has not been accorded a preliminary investigation or examination as required by lawno court, magistrate, or other competent authority has determined from a sworn complaint orevidence adduced that there is probable cause to believe that a crime has been committed, or thatdefendant has committed any crime.

2 That the facts charged do not co nstitute a public offense.

The demurrer was overruled on the same day and the defendant having refused to plead, a plea of not guiltentered by direction of the court for him and the trial proceeded.

After due consideration of all the proofs presented and the arguments of counsel the trial court found thedefendant guilty of the crime charged and sentenced him to one year eight months and twenty-onedays' presidio correccional , to indemnify the offended party, The M anila Electric Railroad and Light Compthe sum of P865.26, to the corresponding subsidiary imprisonment in case of insolvency and to the paymethe costs. From this judgment the defendant appealed and makes the following assignments of error:

I.

The court erred in overruling the objection of the accused to the jurisdiction of the court, becausewas not given a preliminary investigation as required by law, and in overruling his demurrer for same reason.

II.

The court erred in declaring the accused to be guilty, in view of the evidence submitted.

III.

The court erred in declaring that electrical energy may be stolen.

IV.

The court erred in not declaring that the plaintiff consented to the taking of the current.

V.

The court erred in finding the accused guilty of more than one offense.

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VI.

The court erred in condemning the accused to pay P865.26 to the electric company as damages.

Exactly the same question as that raised in the first assignment of error, was after a through examination anddue consideration, decided adversely to appellant's contention in the case of U. S. vs. Grant and Kennedy (18Phil. Rep., 122). No sufficient reason is presented why we should not follow the doctrine enunciated in that case.

The question raised in the second assignment of error is purely one fact. Upon this point the trial court said:

For considerably more than a year previous to the filing of this complaint the accused had been aconsumer of electricity furnished by the Manila Electric Railroad and Light C ompany for a buildingcontaining the residence of the accused and three other residences, and which was equipped,according to the defendant's testimony, with thirty electric lights. On March 15, 1909, therepresentatives of the company, believing that more light was being used than their meter s howed,installed an additional meter (Exhibit A) on a pole outside of defendant's house, and both it and themeter (Exhibit B) which had been previously installed in the house were read on said date. Exhibit Aread 218 kilowatt hours; Exhibit B, 745 kilowatt hours. On March 3, 1910 each was read again, ExhibitA showing 2,718 kilowatt hours and Exhibit B, 968. It is undisputed that the current which supplied thehouse passed through both meters and the city electrician testifies that each meter was tested on thedate of the last reading and was "in good condition." The result of this registration therefore is thatwhile the outsider meter (Exhibit A) showed a consumption in defendant's building of 2,500 kilowatthours of electricity, this inside meter (Exhibit B) showed but 223 kilowatt hours. In o ther words theactual consumption, according to the outside meter, was more than ten times as great as thatregistered by the one inside. Obviously this difference could not be due to normal causes, for while the

electrician called by the defense (Lanusa) testifies to the possibility of a difference between two suchmeters, he places the extreme limit of such difference between them 5 per cent. Here, as we haveseen, the difference is more than 900 per cent. Besides, according to the defendant's electrician, theoutside meter should normally run faster, while according to the test made in this case the insidemeter (Exhibit B) ran the faster. T he city electrician also testifies that the electric current could havebeen deflected from the inside meter by placing thereon a device known as a "jumper" connecting thetwo outside wires, and there is other testimony that there were marks on the insulation of the meterExhibit B which showed the use of such a device. There is a further evidence that the consumption of223 kilowatt hours, registered by the inside meter would not be a reasonable amount for the numberof lights installed in defendant's building during the period in question, and the accused fails to explainwhy he should have had thirty lights installed if he needed but four or five.

On the strength of this showing a search warrant was issued for the examination of defendant'spremises and was duly served by a police officer (Hartpence). He was accompanied at the time bythree employees of the Manila Electric Railroad and Light Company, and he found there the accused,his wife and son, and perhaps one or two others. There is a sharp conflict between the severalspectators on some points but on one there is no dispute. All agree that the "jumper" (Exhibit C) wasfound in a drawer of a small cabinet in the r oom of defendant's house where the meter was installedand not more than 20 feet therefrom. In the absence of a satisfactory explanation this constitutedpossession on defendant's part, and such possession, under the Code of Civil Procedure, section 334(10), raises the presumption that the accused was the owner of a device whose only use was to deflectthe current from the meter.

Is there any other "satisfactory explanation" of the "jumper's" presence? The only one sought to offered is the statement by the son of the accused, a boy of twelve years, that he saw the "jumperplaced there by the witness Porter, an employee of the Light Company. The boy is the only witnwho so testifies and Porter himself squarely denies it. We can not agree with counsel for the defethat the boy's interest in the outcome of this case is less than that of the witness for the prosecutioseems to us that his natural desire to shield his father would f ar outweight any interest such anemployee like Porter would have and which, at most, would be merely pecuniary.

There is, however, one witness whom so far as appears, has no interest in the matter whatsoeveris officer Hartpence, who executed the search warrant. He testifies that after inspecting other artiand places in the building as he a nd the other spectators, including the accused, approached thecabinet in which the "jumper" was found, the officer's attention was called to the defendant'sappearance and the former noticed that the latter was becoming nervous. Where the only twowitnesses who are supposed to know anything of the matter thus contradict each other this item otestimony by the officer is of more than ordinary significance; for if, as the accused claims, the"jumper" was placed in the cabinet for the first time by Porter there would be no occasion for anchange of demeanor on the part of the accused. We do not think that the officer's declination to wuntil defendant should secure a notary public shows bias. T he presence of such an official was nrequired nor authorized by law and the very efficacy of a search depends upon its swiftness.

We must also agree with the prosecuting attorney that the attending circumstances do not strengtthe story told by the boy; that the latter would have been likely to call out at the time he saw the"jumper" being placed in the drawer, or at least directed his father's attention to it immediatelyinstead of waiting, as he says, until the latter was called by the officer. Finally, to accept the boy'we must believe that this company or its representatives deliberately conspired not merely to lurdefendant into the commission of a crime but to fasten upon him a crime w hich he did not commthus convict an innocent man by perjured evidence. This is a much more serious charge than thatcontained in the complaint and should be supported by very strong corroborating circumstances we do not find here. We are, accordingly, unable to consider as satisfactory defendant's explanatthe "jumper's" presence.

The only alternative is the conclusion that the "jumper" was placed there by the accused or by soone acting for him and that it was the instrument by which the current was deflected from the maExhibit B and the Light Company deprived of its lawful compensation.

After a careful examination of the entire record we are satisfied beyond peradventure of a doubt that the prpresented fully support the facts as set forth in the foregoing finding.

Counsel for the appellant insists that the only corporeal property can be the subject of the crime of larcenyin the support of this proposition cites several authorities for the purpose of showing that the only s ubjectslarceny are tangible, movable, chattels, something which could be taken in possession and carried away, anwhich had some, although trifling, intrinsic value, and also to show that electricity is an unknown force annot be a subject of larceny.

In the U. S.vs. Genato (15 Phi. Rep., 170) the defendant, the owner of the store situated at No. 154 EscoltaManila, was using a contrivance known as a "jumper" on the electric meter installed by the Manila ElectricRailroad and the Light Company. As a result of the use of this "jumper" the meter, instead of making one

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revolution in every four seconds, registered one in seventy-seven seconds, thereby reducing the currentapproximately 95 per cent. Genato was charged in the municipal court with a violation of a certain ordinance ofthe city of Manila, and was sentenced to pay a fine of P200. He appealed to the Court of First Instance, was againtried and sentenced to pay the same fine. An appeal was taken from the judgment of the Court of First Instanceto the Supreme Court on the ground that the ordinance in question was null and void. It is true that the onlyquestion directly presented was of the validity of the city ordinance. The court, after holding that said ordinancewas valid, said:

Even without them (ordinances), the right of ownership of electric current is secured by articles 517and 518 of the Penal Code; the application of these articles in case of subtraction of gas, a fluid usedfor lighting, and in some respects resembling electricity, is confirmed by the rule laid down in the

decisions of the supreme court of Spain January 20, 1887, and April 1, 1897, construing and enforcingthe provisions of articles 530 and 531 of the penal code of that country, articles identical with articles517 and 518 of the code in force in these Islands.

Article 517 of the Penal Code above referred to reads as follows:

The following are guilty of larceny:

(1) Those who w ith intent of gain and without violence or intimidation against the person, or forceagainst things, shall take another's personal property without the owner's consent.

And article 518 fixes the penalty for larceny in proportion to the value of the personal property stolen.

It is true that electricity is no longer, as formerly, regarded by electricians as a fluid, b ut its manifestation andeffects, like those of gas, may be seen and felt. The true test of what is a proper subject of larceny seems to benot whether the subject is corporeal, but whether it is capable of appropriation by another than the owner.

It is well-settled that illuminating gas may be the s ubject of larceny, even in the absence of a statute soproviding. (Decisions of supreme court of Spain, January 20, 1887, and April 1, 1897,supra ; also (England)Queen vs. Firth, L. R. 1 C. C., 172, 11 Cox C. C., 234; Queenvs. White, 3 C. & K., 363, 6 Cox C. C., 213;Woods vs. People, 222 III., 293, 7 L. R. A., 520; Commonwealthvs. Shaw, 4 Allen (Mass), 308; Statevs. Wellman,34 Minn., 221, N. W. Rep., 385, and 25 Cyc., p. 12, note 10.)

In the case of Commonwealth vs. Shaw, supra, the court, speaking through Chief Justice Bigelow, said:

There is nothing in the nature of gas used for illuminating purposes which renders it incapable of beingfeloniously taken and carried away. It is a valuable article of merchandise, bought and sold like o therpersonal property, susceptible of being severed from a mass or larger quantity, and of beingtransported from place to place. In the present case it appears that it was the property of the BostonGas Light Company; that it was in their possession by being confined in conduits and tubes whichbelonged to them, and that the defendant severed a portion of that which was in the pipes of thecompany by taking it into her house and there consuming it. All this being proved to have been doneby her secretly and with intent to deprive the company of their property and to appropriate it to herown use, clearly constitutes the crime of larceny.

Electricity, the same as gas, is a valuable article of merchandise, bought and sold like other personal propeand is capable of appropriation by another. So no error was committed by the trial court in holding thatelectricity is a subject of larceny.

It is urged in support of the fourth assignment of error that if it be true that the appellant did appropriate toown use the electricity as charged he can not be held guilty of larceny for any part of the electricity thusappropriated, after the first month, for the reason that the complaining party, the Manila Electric Road andCompany, knew of this misappropriation and consented thereto.

The outside meter was installed on March 15, 1909, and read 218 kilowatt hours. On the same day the insimeter was read and showed 745 kilowatt hours. Both meters were again read on March 3, 1910, and the ouone showed 2,718 kilowatt hours while the one on the inside only showed 968, the difference in consumptduring this time being 2,277 kilowatt hours. The taking of this current continued over a period of one yeartwelve days. Assuming that the company read both meters at the end of each month; that it knew the defenwas misappropriating the current to that extent; and that t continued to furnish the current, thereby giving tdefendant an opportunity to continue the misppropriation, still, we think, that the defendant is criminallyresponsible for the taking of the whole amo unt, 2,277 kilowatt hours. The company had a contract with thdefendant to furnish him with current for lighting purposes. It could not stop the misappropriation withoutcutting off the current entirely. It could not reduce the current so as to just furnish sufficient for the lightintwo, three, or five lights, as claimed by the defendant that he used during the most of this time, but the currmust always be sufficiently strong to furnish current for the thirty lights, at any time the defendant desired use them.

There is no pretense that the accused was solicited by the company or any one else to commit the acts charAt most there was a mere passive submission on the part of the company that the current should be taken a

no indication that it wished it to be taken, and no knowledge by the defendant that the company wished himtake the current, and no mutual understanding between the company and the defendant, and no measures oinducement of any kind were employed by the company for the purpose of leading the defendant intotemptation, and no preconcert whatever between him and company. The original design to misappropriate current was formed by the defendant absolutely independent of any acts on the part of the company or itsagents. It is true, no doubt, as a general proposition, that larceny is not committed when the property is takwith the consent of its owner. It may be difficult in some instances to determine whether certain acts constin law, such "consent." But under the facts in the case at bar it is not difficult to reach a conclusion that theperformed by the plaintiff company did not constitute a consent on its part the defendant take its property. have been unable to find a well considered case holding contrary opinion under similar facts, but, there arenumerous cases holding that such acts do not constitute such consent as would relieve the taker of criminaresponsibility. The fourth assignment of error is, therefore, not well founded.

It is also contended that since the "jumper" was not used continuously, the defendant committed not a singoffense but a series of o ffenses. It is, no doubt, true that the defendant did not allow the "jumper" to remain

place continuously for any number of days as the company inspected monthly the inside meter. So the "jumwas put on and taken off at least monthly, if not daily, in order to avoid detection, and while the "jumper" woff the defendant was not misappropriating the current. The complaint alleged that the defendant did on,during, and between the 13th day of February, 1909, and the 3d of March, 1910. willfully, unlawfully, andfeloniously take, steal, and carry away 2,277 kilowatts of electric current of the value of P909. No demurrpresented against this complaint on the ground that more than one crime was charged. The Government haopportunity to amend or correct this error, if error at all. In the case of U. S. vs. Macaspac (12 Phil. Rep., defendant received from one Joquina Punu the sum of P31.50, with the request to deliver it to Marcelina D

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Oco. The defendant called upon Marcelina, but instead of delivering the said amount she asked Marcelina forP30 in the name of Joaquina who had in no way authorized her to do so. Marcelina gave her P30, believing thatJoaquina had sent for it. Counsel for the defendant insisted that the complaint charged his client with twodifferent crimes of estafa in violation of section 11 of General Orders, No. 58. In disposing of this question thiscourt said:

The said defect constitutes one of the dilatory pleas indicated by section 21, and the accused ought tohave raised the point before the trial began. Had this been done, the complaint might have beenamended in time, because it is merely a defect of form easily remedied. . . . Inasmuch as in the firstinstance the accused did not make the corresponding dilatory plea to the irregularity of the complaint,it must be understood that has waived such objection, and is not now entitled to raise for the first time

any question in reference thereto when submitting to this court her assignment of errors. Apart fromthe fact that the defense does not pretend that any of the essential rights of the accused have beeninjured, the allegation of the defect above alluded to, w hich in any case would only aff ect form of thecomplaint, can not justify a reversal of the judgment appealed from, according to the provisions ofsection 10 of General Orders, No. 58.

In the case at bar it is not pointed out wherein any of the essential rights of the defendant have been prejudicedby reason of the fact that the complaint covered the entire period. If twelve distinct and separate complaints hadbeen filed against the defendant, one for each month, the sum total of the penalties imposed might have beenvery much greater than that imposed by the court in this case. The covering of the entire period by one chargehas been beneficial, if anything, and not prejudicial to the rights of the defendant. The prosecuting attorneyelected to cover the entire period with one charge and the accused having been convicted for this offense, hecan not again be prosecuted for the stealing of the current at any time within that period. Then, again, we are ofthe opinion that the charge was properly laid. T he electricity was stolen from the same person, in the samemanner, and in the same place. It was substantially one continuous act, although the "jumper" might have beenremoved and replaced daily or monthly. The defendant was moved by one impulse to appropriate to his own usethe current, and the means adopted by him for the taking of the current were in the execution of a generalfraudulent plan.

A person stole gas for the use of a manufactory by means of pipe, which drew off the gas from themain without allowing it to pass through the meter. The gas from this pipe was burnt every day, andturned off at night. The pipe was never closed at this junction with the main, and consequently alwaysremained full of gas. It was held, that if the pipe always remained full, there was, in fact, a continuoustaking of the gas and not a series of separate talkings. It was held also that even if the pipe had notbeen kept full, the taking would have been continuous, as it was substantially all one transaction.(Reginavs. Firth, L. R., 1 C. C., 172; 11 Cox C. C., 234. Cited on p. 758 of Wharton's Criminal Law, vol. 1,10th ed.)

The value of the electricity taken by the defendant was found by the trial court to be P865.26. This finding is fully

in accordance with the evidence presented. So no error was committed in sentencing the defendant toindemnify the company in this amount, or to suffer the corresponding subsidiary imprisonment in case ofinsolvency.

The judgment being strictly in accordance with the law and the merits of the case, same is hereby affirmed, withcosts against the appellant.

LUIS MARCOS P. LAUREL, Petitioner, v. HON. ZEUS C. ABROGAR

G.R. No. 155076

On February 27, 2006, this Courts First Division rendered judgment in this case as follows:

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orthe Regional Trial Court and the Decision of the Court of Appeals are REVERSED and SETASIDE. The Regional Trial Court is directed to issue an order granting the motion of thepetitioner to quash the Amended Information.

SO ORDERED.[1]

By way of brief background, petitioner is one of the accused in Criminal Case No. 99-2425, filethe Regional Trial Court of Makati City, Branch 150. The Amended Information charged the accused withunder Article 308 of the Revised Penal Code, committed as f ollows:

On or about September 10-19, 1999, or prior thereto in Makati City, and within the jurisdiction of this Honorable Court, the accused, conspiring and confederating together andall of them mutually helping and aiding one another, with intent to gain and without theknowledge and consent of the Philippine Long Distance Telephone (PLDT), did then and therewillfully, unlawfully and feloniously take, steal and use the international long distance callsbelonging to PLDT by conducting International Simple Resale (ISR), which is a method ofrouting and completing international long distance calls using lines, cables, antenae, and/orair wave frequency which connect directly to the local or domestic exchange facilities of thecountry where the call is destined, effectively stealing this business from PLDT while using itsfacilities in the estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, inthe said amount.

CONTRARY TO LAW.[2]

Petitioner filed a Motion to Quash (with Motion to Defer Arraignment), on the ground that thefactual allegations in the Amended Information do not constitute the felony of theft. The trial court deniedMotion to Quash the Amended Information, as well petitioners subsequent Motion fo r Reconsideration.

Petitioners special civil action for certiorari was dismissed by the Court of Appeals. Thus, petitifiled the instant petition for review with this Court.

In the above-quoted Decision, this Court held that the Amended Information does not contain mallegations charging petitioner with theft of personal property since international long distance calls and thbusiness of providing telecommunication or telephone services are not personal properties under Article 3the Revised Penal Code.

Respondent Philippine Long Distance Telephone Company (PLDT) filed a Motion for Reconsidwith Motion to Refer the Case to the Supreme Court En Banc. It maintains that the Amended Informationcharging petitioner with theft is valid and sufficient; that it states the names of all the accused who werespecifically charged with the crime of theft of PLDTs international calls and business of providingtelecommunication or telephone service on or about September 10 to 19, 1999 in Makati City by conductin

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or International Simple Resale; that it identifies the international calls and business of providingtelecommunication or telephone service of PLDT as the personal properties which were unlawfully taken by theaccused; and that it satisfies the test of sufficiency as it enabled a person of common understanding to know thecharge against him and the court to render judgment properly.

PLDT further insists that the Revised Penal Code should be interpreted in the context of the Civil Codesdefinition of real and personal property. The enumeration of real properties in Article 415 of the Civil Code isexclusive such that all those not included therein are personal properties. Since Article 308 of the Revised PenalCode used the words personal property without qualification, it follows that all personal properties asunderstood in the context of the Civil Code, may be the subject of theft under Article 308 of the Revised PenalCode. PLDT alleges that the international calls and business of providing telecommunication or telephone

service are personal properties capable of appropriation and can be o bjects of theft.PLDT also argues that taking in relation to theft under the Revised Penal Code does not require

asportation, the sole requisite being that the object should be capable of appropriation. The element oftaking referred to in Article 308 of the Revised Penal Code means the act of depriving another of thepossession and dominion of a movable coupled with the intention, at the time of the taking, of withholding itwith the character of permanency. There must be intent to appropriate, which means to deprive the lawfulowner of the thing. Thus, the term personal properties under Article 308 of the Revised Penal Code is notlimited to only personal properties which are susceptible of being severed from a mass or larger quantity and ofbeing transported from place to place.

PLDT likewise alleges that as early as the 1930s, international telephone calls were in existence; hence,ther e is no basis for this Courts finding that the Legislature could not have contemplated the theft ofinternational telephone calls and the unlawful transmission and routing of electronic voice signals or impulsesemanating from such calls by unlawfully tampering with the telephone device as within the coverage of the

Revised Penal Code.

According to respondent, the international phone calls which are electric currents or sets of electricimpulses transmitted through a medium, and carry a pattern repres enting the human voice to a receiver, arepersonal properties which may be subject of theft. Article 416(3) of the Civil Code deems forces of nature(which includes electricity) which are brought under the control by science, are personal property.

In his Comment to PLDTs motion for reconsideration, petitioner Laurel claims that a telephone call is aconversation on the phone or a communication carried out using the telephone. It is not synonymous to electriccurrent or impulses. Hence, it may not be considered as personal property susceptible ofappropriation. Petitioner claims that the analogy between generated electricity and telephone calls ismisplaced. PLDT does not produce or generate telephone calls. It only provides the facilities or services for thetransmission and switching of the calls. He also insists that business is not personal property. It is not thebusiness that is protected but the right to carry on a business. This right is what is considered asproperty. Since the services of PLDT c annot be considered as property, the same may not be subject of theft.

The Office of the Solicitor General (OSG) agrees with respondent PLDT that international phone callsand the business or service of pr oviding international phon e calls are subsumed in the enumeration anddefinition of personal property under the Civil Code hence, may be proper subjects of theft. It noted that thecases of United States v. Genato ,[3] United States v. Carlo s[4] and United States v. Tambunting ,[5] which recognizedintangible properties like gas and electricity as personal properties, are deemed incorporated in our penallaws. Moreover, the theft provision in the Revised Penal Code was deliberately couched in broad terms preciselyto be all-encompassing and embracing even such scenario that could not have been easily anticipated.

According to the OSG, prosecution under Republic Act (RA) No. 8484 or the Access Device Regula Act of 1998 and RA 8792 or theElectronic Commerce Act of 2000 does not preclude prosecution under theRevised Penal Code for the crime of theft. The latter embraces unauthorized appropriation or use of PLDTsinternational calls, service and business, for personal profit or gain, to the prejudice of PLDT as ownerthereof. On the other hand, the special laws punish the surreptitious and advanced technical means employto illegally obtain the subject service and business. Even assuming that the correct indictment should haveunder RA 8484, the quashal of the information would still not be proper. The charge of theft as alleged inInformation should be taken in relation to RA 8484 because it is the elements, and not the designation of thcrime, that control.

Considering the gravity and complexity of the novel questions of law involved in this case, the SpeciDivision resolved to refer the same to the Banc.

We resolve to grant the Motion for Reconsideration but remand the case to the trial court for proclarification of the Amended Information.

Article 308 of the Revised Penal Code provides:

Art. 308. Who are liable for theft. Theft is committed by any person w ho, with intentto gain but without violence against, or intimidation of persons nor force upon things, shalltake personal property of another without the latters consent.

The elements of theft under Article 308 of the Revised Penal Code are as follows: (1) that there taking of personal property; (2) that said property belongs to another; (3) that the taking be done with inten

gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplishedwithout the use of violence against or intimidation of persons or force upon things.

Prior to the passage of the Revised Penal Code on December 8, 1930, the definition of the term personalproperty in the penal code provision on theft had been established in Philippine jurisprudence. This Coin United States v. Genato , United States v. Carlos , and United States v. Tambunting , consistently ruled thpersonal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the obtheft.

Moreover, since the passage of the Revised Penal Code on December 8, 1930, the term personalproperty has had a generally accepted definition in civil law. In Article 335 of the Civil Code of Spain, persoproperty is defined as anything susceptible of appropriation and not included in the foregoing chapter (not real

property) . Thus, the term personal property in the Revised Penal Code should be interpreted in the context ofthe Civil Code provisions in accordance with the rule on statutory construction that where words have beeused in a technical sense and have been judicially construed to have a certain meaning, and have been adop

by the legislature as having a certain meaning prior to a particular statute, in which they are used, the wor dused in such statute should be construed according to the sense in which they have been previously usedfact, this Court used the Civil C ode definition of personal property in interpreting the theft provision of thepenal code in United States v. Carlos .

Cognizant of the definition given by j urisprudence and the Civil Code of Spain to the term personalproperty at the time the old Penal Code was being revi sed, still the legislature did not limit or qualify thedefinition of personal property in the Revised Penal Code. Neither did it provide a restrictive definition

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exclusive enumeration of personal property in the Revised Penal Code, thereby show ing its intent to retain forthe term an extensive and unqualified interpretation. Consequently, any property which is not included in theenumeration of real properties under the Civil Code and capable of appropriation can be the subject of theftunder the Revised Penal Code.

The only requirement for a personal property to be the object of theft under the penal code is that it becapable of appropriation. It need not be capable of asportation, which is defined as carryingaway. [7] Jurisprudence is settled that to take under the theft provision of the penal code does not requireasportation or carrying away .[8]

To appropriate means to deprive the lawful owner of the thing .[9] The word take in the Revised Penal

Code includes any act intended to transfer possession which, as held in the assailed Decision, may be committedthrough the use of the offenders own hands, as well as any mechanical device, such as an access device or cardas in the instant case. This includes controlling the destination of the property stolen to deprive the owner ofthe property, such as the use of a meter tampering, as held in Natividad v. Court of Appeals ,[10] use of a device tofraudulently obtain gas, as held in United States v. Tambunting , and the use of a jumper to divert electricity, asheld in the cases of United States v. Genato , United States v. Carlos , andUnited States v. Menagas .[11]

As illustrated in the above cases, appropriation of forces of nature which are brought under control byscience such as electrical energy can be achieved by tampering with any apparatus used for generating ormeasuring such forces of nature, wrongfully redirecting such forces of nature from such apparatus, or using anydevice to fraudulently obtain such forces of nature. In the instant case, petitioner was charged with engaging inInternational Simple Resale (ISR) or the unauthorized routing and completing of international long distance callsusing lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local ordomestic exchange facilities of the country where destined.

As early as 1910, the Court declared in Genato that ownership over electricity (which an international longdistance call consists of), as well as telephone service, is protected by the provisions on theft of the PenalCode. The pertinent provision of the Revised Ordinance of the City of Manila, which was involved in the saidcase, reads as follows:

Injury to electric apparatus; Tapping current; Evidence. No person shall destroy,mutilate, deface, or otherwise injure or tamper with any wire, meter, or other apparatusinstalled or used f or generating, containing, conducting, or measuring electricity, telegraphor telephone service, nor tap or otherwise wrongfully deflect or take any electric currentfrom such wire, meter, or other apparatus.

No person shall, for any purpose whatsoever, use or enjoy the benefits of anydevice by means of which he may fraudulently obtain any current of electricity or anytelegraph or telephone service; and the existence in any building premises of any such device

shall, in the absence of satisfactory explanation, be deemed sufficient evidence of such useby the persons benefiting thereby.

It was further ruled that even without the above ordinance the acts of subtraction punished therein arecovered by the provisions on theft of the Penal Code then in force, thus:

Even without them (ordinance), the right of the ownership of electric current issecured by articles 517 and 518 of the Penal Code; the application of these articles in cases ofsubtraction of gas, a fluid used fo r lighting, and in some respects resembling electricity, isconfirmed by the rule laid down i n the decisions of the supreme court of Spain of January 20,1887, and April 1, 1897, construing and enforcing the provisions of articles 530 and 531 ofthe Penal Code of that country, articles 517 and 518 of the code in force in these islands.

The acts of subtraction in clude: (a) tampering with any wire, meter, or other apparatus installed orfor generating, containing, conducting, or measuring electricity, telegraph or telephone service; (b) tappingotherwise wrongfully deflecting or taking any electric current from such wire, meter, or other apparatus; ausing or enjoying the benefits of any device by means of which one may fraudulently obtain any current o

electricity or any telegraph or telephone service.In the instant case, the act of conducting ISR operations by illegally connecting various equipment o

apparatus to private respondent PLDTs telephone system, through which petitioner is able to resell or reinternational long distance calls using respondent PLDTs facilities constitu tes all three acts of subtractionmentioned above.

The business of providing telecommunication or telephone service is likewise personal property whibe the object of theft under Article 308 of the Revised Penal Code. Business may be appropriated under Se2 of Act No. 3952 (Bulk Sales Law), hence, could be object of theft:

Section 2. Any sale, transfer, mortgage, or assignment of a stock of goods, wares,merchandise, provisions, or materials otherwise than in the ordinary course of trade and theregular prosecution of the business of the vendor, mortgagor, transferor, or assignor, or anysale, transfer, mortgage, or assignment of all, or substantially all, of the business or trade

theretofore conducted by the vendor, mortgagor, transferor or assignor, or all, orsubstantially all, of the fixtures and equipment used in and about the business of the vendor,mortgagor, transferor, or assignor, shall be deemed to be a sale and transfer in bulk, incontemplation of the Act. x x x.

In Strochecker v. Ramirez ,[12] this Court stated:

With regard to the nature of the property thus mortgaged which is one-halfinterest in the business above described, such interest is a personal property capable ofappropriation and not included in the enumeration of real properties in article 335 of theCivil Code, and may be the subject of mortgage.

Interest in business was not specifically enumerated as personal property in the Civil Code in force a

time the above decision was rendered. Yet, interest in business was declared to be personal property sincecapable of appropriation and not included in the enumeration of real properties. Article 414 of the Civil Cprovides that all things which are or may be the object of appropriation are considered either real propertypersonal property. Business is likewise not enumerated as personal property under the Civil Code. Just likinterest in business, however, it may be appropriated. Following the ruling in Strochecker v. Ramirez , busshould also be classified as personal property. Since it is not included in the exclusive enumeration of reaproperties under Article 415, it is therefore personal property .[13]

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As can be clearly gleaned from the above disquisitions, petitioners acts constitute theft of respondentPLDTs business and service, committed by means of the unlawful use of the latters facilities. In this regard, theAmended Information inaccurately describes the offense by making it appear that what petitioner took were theinternational long distance teleph one calls, rather than respondent PLDTs business.

A perusal of the records of this case readily reveals that petitioner and respondent PLDT extensivelydiscussed the issue of ownership of telephone calls. The prosecution has taken the position that said telephonecalls belong to respondent PLDT. This is evident from its Comment where it defined the issue of this case aswhether or not the unauthorized use or appropriation of PLDT international telephone calls, service andfacilities, for the purpose of generating personal profit or gain that should have otherwise belonged to PLDT,constitutes theft. [14]

In discussing the issue of ownership, petitioner and respondent PLDT gave their respective explanations onhow a telephone call is generated .[15] For its part, respondent PLDT explains the process of generating atelephone call as follows:

38. The role of telecommunication companies is not limited to merely providingthe medium (i.e. the electric current) through which the human voice/voice signal of thecaller is transmitted. Before the human voice/voice signal can be so transmitted, atelecommunication company, using its facilities, must first break down or decode the humanvoice/voice signal into electronic impulses and subject the same to further augmentation andenhancements. Only after such process of conversion will the resulting electronic impulsesbe transmitted by a telecommunication company, again, through the use of itsfacilities. Upon reaching the destination of the call, the telecommunication company willagain break down or decode the electronic impulses back to human voice/voice signal beforethe called party receives the same. In other words, a telecommunication company both

converts/reconverts the human voice/voice signal and provides the medium for transmittingthe same.

39. Moreover, in the case of an international telephone call, once the electronicimpulses originating from a foreign telecommunication company country (i.e. Japan) reachesthe Philippines through a local telecommunication company (i.e. private respondent PLDT), itis the latter which decodes, augments and enhances the electronic impulses back to thehuman voice/voice signal and provides the medium (i.e. electric current) to enable the calledparty to receive the call. Thus, it is not true that the foreign telecommunication companyprovides (1) the electric current which transmits the human voice/voice signal of the callerand (2) the electric current for the called party to receive said human voice/voice signal.

40. Thus, contrary to petitioner Laurels assertion, once the electronic impulsesor electric current originating from a foreign telecommunication company (i.e. Japan)reaches private respondent PLDTs network, it is private respondent PL DT which decodes,

augments and enhances the electronic impulses back to the human voice/voice signal andprovides the medium (i.e. electric current) to enable the called party to receive thecall. Without private respondent PLDTs network, the human voice/voice signal of the callingparty will never reach the called party .[16]

In the assailed Decision, it was conceded that in making the international phone calls, the human voice isconverted into electrical impulses or electric current which are transmitted to the party called. A telephone call,

therefore, is electrical energy. It was also held in the assailed Decision that intangible property such as eleenergy is capable of appropriation because it may be taken and carried away. Electricity is personal propeunder Article 416 (3) of the Civil Code, which enumerates forces of nature which are brought under control byscience. [17]

Indeed, while it may be conceded that international long distance calls, the matter alleged to be stolen inthe instant case, take the form of electrical energy, it cannot be said that such international long distance cawere personal properties belonging to PLDT since the latter could not have acquired ownership over suchcalls. PLDT merely encodes, augments, enhances, decodes and transmits said calls using its complexcommunications infrastructure and facilities. PLDT not being the owner of said telephone calls, then it covalidly claim that such telephone calls were taken without its consent. It is the use of these communicatio

facilities without the consent of PLDT that constitutes the crime of theft, which is the unlawful taking of thtelephone services and business.

Therefore, the business of providing telecommunication and the telephone service are personalproperty under Article 308 of the Revised Penal Code, and the act of engaging in ISR is an act of subtractionpenalized under said article. However, the Amended Information describes the thing taken as, internationallong distance calls, and only later mentions stealing the business from PLDT as the manner by which thwas derived by the accused. In order to correct this inaccuracy of description, this case must be remandedthe trial court and the prosecution directed to amend the Amended Information, to clearly state that theproperty subject of the theft are the services and b usiness of respondent PLDT. Parenthetically, this amenis not necessitated by a mistake in charging the proper off ense, which would have called for the dismissal oinformation under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules on Criminal Procebe sure, the crime is properly designated as one of theft. The purpose of the amendment is simply to ensuthat the accused is fully and sufficiently apprised of the nature and cause of the charge against him, and thuguaranteed of his rights under the Constitution.

ACCORDINGLY, the motion for reconsideration is GRANTED. The assailed Decision dated F2006 is RECONSIDERED and SET ASIDE. The Decision of the Court of Appeals in CA-G.R. SP No. 6the Order issued by Judge Zeus C. Abrogar of the Regional Trial Court of Makati City, Branch 150, whichthe Motion to Quash (With Motion to Defer Arraignment) in Criminal Case No. 99-2425 for theft,is AFFIRMED. The case is remanded to the trial court and the Public Prosecutor of Makati City ishereby DIRECTED to amend the Amended Information to show that the property subject of the theft wereservices and business of the private offended party.

SO ORDERED.

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G.R. No. L-9069 March 31, 1915

THE MUNICIPALITY OF CAVITE, plaintiff-appellant,vs.HILARIA ROJAS and her husband TIUNG SIUKO, alias SIWA, defendants-appellees.

Attorney-General Villamor for appellant. J. Y. Pinzon for appellees.

TORRES, J.:

Appeal filed through bill of exceptions by the Attorney-General, representing the plaintiff municipality of Cavite,from the judgment of March 27, 1913, whereby the Honorable Herbert D. Gale, judge, dismissed the complaintwith costs against the plaintiff party, declaring that the said municipality had no right to require that thedefendants vacate the land in question.

By an instrument dated December 5, 1911, afterwards amended on March 14, 1912, the provincial fiscal ofCavite, representing the municipality of that name, filed a complaint in the Court of First Instance of saidprovince alleging that the plaintiff municipal corporation, duly organized and constituted in accordance with ActNo. 82, and as the successor to the rights s aid entity had under the late Spanish government, and by virtue ofAct No. 1039, had exclusive right, control and administration over the streets, lanes, plazas, and public places ofthe municipality of Cavite; that the defendants, by virtue of a lease secured from the plaintiff municipality,occupy a parcel of land 93 square meters in area that forms part o the public plaza known under the name ofSoledad, belonging to the municipality of Cavite, the defendants having constructed thereon a house, throughpayment to the plaintiff for occupation thereof of a rental of P5,58 a quarter in advance, said defendants being

furthermore obligated to vacate the leased land within sixty days subsequent to plaintiff's demand to that effect;that the defendants have been required by the municipality to vacate and deliver possession of the said land, butmore than the sixty days within which they having done so to date; that the lease secured from the municipalityof Cavite, by virtue whereof the defendants occupy the land that i s the subject matter of the complaint, is ultravires and therefore ipso facto null and void and of no force or effect, for the said land is an integral portion of apublic plaza of public domain and use, and the municipal council of Cavite has never at any time had any poweror authority to withdraw it from public use, and to lease it to a private party for his own use, and so thedefendants have never had any right or occupy or to retain the said land under leasehold, or in any other way,their occupation of the parcel being furthermore illegal; and therefore prayed that judgment be rendereddeclaring that possession of the sad land lies w ith the plaintiff and ordering the defendants to vacate the landand deliver possession thereof to said plaintiff, with the costs against the defendants.

The demurrer filed to the foregoing complaint having been overruled, with exception on the part of thedefendants, in their answer of April 10, 1912, they admitted some of the allegations contained in the complaintbut denied that the parcel of land which they occupy and to which the complaint refers forms and integral partof Plaza Soledad, or that the lease secured by them from the municipality of Cavite was null and void and ultravires , stating if they refused to vacate said land it was because they had acquired the right of possession thereof.As a special defense they alleged that, according to the lease, they could only be ordered to vacate the landleased when the plaintiff municipality might need it for decoration or other public use, which does not apply inthe present case; and in a cross-complaint they alleged that on the land which is the subject matter of thecomplaint the defendants have erected a house of strong materials, assessed at P3,000, which was constructedunder a license secured from the plaintiff municipality; that if they should be ordered to vacate the said land

they would suffer damages to the extent of P3,000, wherefore they prayed that they be absolved from thecomplaint, or in the contrary case that the plaintiff be sentenced to indemnify them in the sum of P3,000 asdamages, and to pay the costs.

After hearing of the case, wherein both parties submitted parol and documentary evidence, the court rendethe judgment that he been mentioned, whereto counsel for the municipality excepted and in writing asked freopening of the case and the holding of a new trial. This motion was denied, with exception on the part ofappellant, and the forwarded to the clerk of this court.

It is duly proven in the record that, upon presentation of an application by Hilaria Rojas, he municipal couCavite by resolution No. 10, dated July 3, 107, Exhibit C, leased to the said Rojas some 70 or 80 square mPlaza Soledad, on condition that she pay rent quarterly in advance according to the schedule fixed in OrdinNo. 43, land within sixty days s ubsequent to notification to that effect. The record shows (receipts, Exhibitshe has paid the land tax on the house erected on the lot.

The boundary line between the properties of the municipality of C avite and the naval reservation, as fixed No. 1039 of the Philippine Commission, appears i n the plan prepared by a naval engineer and submitted aevidence by the plaintiff, Exhibit C of civil case No. 274 of the Cavite court and registered in this court as 9071. According to said plan, defendant's house is erected on a plat of ground that forms part of the promecalled Plaza Soledad, and this was also so proven by the testimony of the plaintiff's w itnesses.

By section 3 of the said Act No. 1039, passed January 12, 1904, the Philippine Commission granted to themunicipality of Cavite all the land included in the tract called Plaza Soledad. In the case of Nicolas vs. JosRep., 589), wherein the municipality of Cavite, represented by its president Catalino Nicolas, sought inscrits name of the land comprised in the said Palza Soledad, with objection on the part of Maria Jose et al. wh

sought that inscription be decreed in their name of the parcels of land in this plaza occupied by them, this cdecided that neither the municipality nor the objectors were entitled to inscription, for with respect to theobjectors said plaza belonged to the municipality of Cavite and with respect to the latter the said Plaza Solwas not transferable property of that municipality to be inscribed in its name, because he intention of Act N1039 was that the said plaza and other places therein enumerated should be kept open for public transit;herefore there can be no doubt that the defendant has no right to continue to occupy the land of themunicipality leased by her, for it is an integral portion of Plaza Soledad, which if for public use and is resethe common benefit.

According to article 344 of the Civil Code: "Property for public use in provinces and i n towns comprises tprovincial and town roads, the squares, streets, fountains, and public waters, the promenades, and public wof general service supported by said towns or provinces."

The said Plaza Soledad being a promenade for public use, the municipal council of Cavite could not in 190withdraw or exclude from public use a portion thereof in order to lease it for the sole benefit of the defendHilaria Rojas. In leasing a portion of said plaza or public place to the defendant for private use the plaintiffmunicipality exceeded its authority in the exercise of its powers by executing a contract over a thing of whcould not dispose, nor is it empowered so to do.

The Civil Code, articles 1271, prescribes that everything which is not outside he commerce of man may beobject of a contract, and plazas and streets are outside of this commerce, as was decided by t he supreme coof Spain in its decision of February 12, 195, which says: "Communal things that cannot be soud because th

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by their very nature outside of commerce are those for public use, such as the plazas, streets, common lands,rivers, fountains, etc."

Therefore, it must be concluded that the contract, Exhibit C, whereby he municipality of Cavite leased to HilariaRojas a portion of the Plaza Soledad is null and void and of no force or effect, because it is contrary to the lawand the thing leased cannot be the object of a contract. On the hyphotesis that the said lease is null and void inaccordance with the provisions of article 1303 of the Civil Code, the defendant must restore and deliverpossession of the land described in the complaint to the municipality of Cavite, which in its turn m ust restore tothe said defendant all the sums it may have received from her in the nature of rentals just as soon as sherestores the land improperly leased. For the same reasons as have been set forth, and as said contract is null andvoid in its origin, it can produce no effect and consequently the defendant is not entitled to claim that the

plaintiff municipality indemnity her for the damages she may suffer by the removal of her house fro m the saidland.

For all the foregoing reasons we must reverse the judgment appealed from and declare, as we do declare, thatthe land occupied by Hilaria Rojas forms part of the public plaza called Soledad, and as the lease of said parcel ofland is null and void, we order the defendant to vacate it and release the land in question within thirty days,leaving it cleared as it was before hr occupation. There is no ground for the indemnity sought in the nature ofdamages, but the municipality must in its turn to the defendant the rentals collected; without finding as to thecosts. So ordered.

G.R. No. L-66575 September 30, 1986

ADRIANO MANECLANG, JULIETA, RAMONA, VICTOR, ANTONINA, LOURDES, TEODORO and MYRNA, all surnamedMANECLANG, petitioners,

vs.THE INTERMEDIATE APPELLATE COURT and ALFREDO MAZA, CORLETO CASTRO, SALOME RODRIGUEZ,EDUCARDO CUISON, FERNANDO ZARCILLA, MARIANO GABRIEL, NICOMEDES CORDERO, CLETO PEDROZO, FELIXSALARY and JOSE PANLILIO, respondents.

Loreto Novisteros for petitioners.

Corleto R. Castro for respondents.

FERNAN, J.:

Petitioners Adriano Maneclang, et. al. filed before the then Court of First Instance of Pangasinan, Branch XI acomplaint for quieting of title over a certain fishpond located within the four [41 parcels of land belonging tothem situated in Barrio Salomague, Bugallon, Pangasinan, and the annulment of Resolutions Nos. 38 and 95 ofthe Municipal Council of Bugallon Pangasinan. The trial court dismissed the complaint in a decision dated August15, 1975 upon a f inding that the body of water traversing the titled properties of petitioners is a creekconstituting a tributary of the Agno River; therefore public in nature and not subject to private appropriation.The lower court likewise held that Resolution No. 38, ordering an ocular inspection of the Cayangan Creeksituated between Barrios Salomague Sur and Salomague Norte, and Resolution No. 95 authorizing public bidding

for the lease of all municipal ferries and fisheries, including the fishpond under consideration, were passedrespondents herein as members of the Municipal Council of Bugallon, Pangasinan in the exercise of theirlegislative powers.

Petitioners appealed said decision to the Intermediate Appellate Court, which affirmed the same on April 21983. Hence, this petition for review on certiorari.

Acting on the petition, the Court required the respondents to comment thereon. However, before respondencould do so, petitioners manifested that for lack of interest on the part of respondent Alfredo Maza, the awin the public bidding of the fishpond, the parties desire to amicably settle the case by submitting to the CouCompromise Agreement praying that judgment be rendered recognizing the ownership of petitioners over land the body of water found w ithin their titled properties, stating therein, among other things, that "to purthe case, the same will not amount to any benefit of the parties, on the other hand it is to the advantage andbenefit of the municipality if the ownership of the land and the water found therein belonging to petitionerrecognized in their favor as it is now clear that after the National Irrigation Administration [NIA] had buildike around the land, no water gets in or out of the la nd. 1

The stipulations contained in the Compromise Agreement partake of the nature of an adjudication of ownein favor of herein petitioners of the fishpond in dispute, which, as clearly found by the lower and appellatecourts, was originally a creek forming a tributary of the Agno River. Considering that as held in the caseof Mercado vs. Municipal President of Macabebe, 59 Phil. 592 [1934], a creek, defined as a recess or armextending from a river and participating in the ebb and flow of the sea, is a property belonging to the publidomain which is not susceptible to private appropriation and acquisitive prescription, and as a public watecannot be registered under the Torrens System in the name of any individual [Diego v. Court of Appeals, 1494; Mangaldan v. Manaoag, 38 Phil. 4551; and considering further that neither the mere construction ofirrigation dikes by the National Irrigation Administration which prevented the water from flowing in and othe subject fishpond, nor its conversion into a fishpond, alter or change the nature of the creek as a propertthe public domain, the Court finds the Compromise Agreement null and void and of no legal effect, the sabeing contrary to law and public policy.

The finding that the subject body of water is a creek belonging to the public domain is a factual determinabinding upon this Court. The Municipality of Bugallon, acting thru its duly-constituted municipal council clothed with authority to pass, as it did the two resolutions dealing with its municipal waters, and it cannotsaid that petitioners were deprived of their right to due process as mere publication of the notice of the pubbidding suffices as a constructive notice to the whole world.

IN VIEW OF THE FOREGOING, the Court Resolved to set aside the Compromise Agreement and declarnull and void for being contrary to law and public policy. The Court further resolved to DISMISS the instapetition for lack of merit.

SO ORDERED.

REPUBLIC OF THEPHILIPPINES, Petitioner,Vs. DEMOCRITO T. MENDOZAG.R. No. 153726

Before Us are consolidated Petitions for Review on Certiorari under Rule 45 of the Rules of CivProcedure, assailing the Decision[1] of the Court of Appeals in CA-G.R. CV No. 57069, dated 30 March

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2001, which reversed and set aside the Decisio n[2] of the Regional Trial Court (RTC) of Cebu, Branch 14, anddismissed for lack of merit Civil Case No. CEB-9563.

The present controversy involves a considerable spread of Silot Bay situated in Liloan, Cebu, andoriginally classified as part of Block B-Timberland, Project No. 29 of LC Map 1391-Liloan of the Land ClassificationProject of the Province of Cebu, with an area of 87.134 hectares, more or less.

On 13 January 1954, Democrito T. Mendoza, Sr. was accorded Ordinary Fishpond Permit No. F-2166-Jfor an area of 6.25 hectares within Silot Bay, which was previously leased by his father who waived the leaseholdrights in his favor. On 26 July of the same year, Democrito Mendoza, Sr. was also issued Ordinary Nipa-Bacauan Permit No. NB 642 for an area of 2.635 hectares, also in Silot Bay. Several years later, on 7 May1969, Democrito Mendoza, Sr. was issued Ordinary Fishpond Permit No. F-6029-Y encompassing an estimatedarea of 70.07 hectares within Silot Bay. This new permit covers the combined areas under Ordinary Nipa-Bacauan Permit No. NB 642 and Ordinary F ishpond Permit No. F-2166-J, as well as other areas previouslymanaged by other fishpond permit grantees which Democrito Mendoza, Sr. acquired for valuable consideration.

Meanwhile, on 16 January 1967, then President Ferdinand E. Marcos issued a Memorandumaddressed to the Secretary of Agriculture and Natural Resources, the Chairman of the Board of Governors of theDevelopment Bank of the Philippines, the Undersecretary of Natural Resources, and the Directors of the Bureausof Fishery, Forestry, and Lands, respectively, thereby constituting a continuing committee to accomplish thefollowing:

1. Identify the exact locations and area of these 700,000 hectares of fishpond areason or before February 28, 1967. x x x.

2. Within the month of March 1967, all these fishpond areas shall be released by theBureau of Forestry to the Bureau of Lands as alienable and disposable, but subjectto the disposal of the Bureau of Fisheries for fishpond purposes .[3]

Thereafter, on 24 September 1969, Democrito Mendoza, Sr. filed an application for sales paten t[4] topurchase the area covered by Ordinary Fishpond Permit No. F-602 9-Y.[5] The fishpond permit indicated that thearea covered by said permit was only 70.07 hectares; however, upon resurvey by the Bureau of Lands, the areawas reported to be measuring 92.3881 hectares. Later, still another survey by the same bureau disclosed thatthe area applied for was only a little over 89 hectares.

On 17 August 1970, then Acting Director of Forestry Jose Viado issued a Letter Certification addressedto the Director of Lands regarding the classification of the property covered by Ordinary Fishpond Permit No. F-6029-Y subject of the sales patent application applied for by Democrito Mendoza, Sr., to wit:

Please be informed that the tract of land situated in Silot-Poblacion, Liloan, Cebu,

containing an area of 70.07 hectares xxx, is within the Timberland Block-B of L C Project No.29 of Liloan, Cebu, per BF Map LC-1391. However, since the said area has already beencertified as available for fishpond development and is thus no longer needed for forestpurposes, the same (the 70.07 hectares shown on CebuPMD No. 1379) is, therefore, herebycertified as such and released as Alienable or Disposable for fishpond purposes only pursuantto the directive of the President dated January 16, 1967 and for disposition under the PublicLand Act, as amended, subject nevertheless, to the following conditions:

x x x x

2. That the area herein certified as Alienable or Disposable be solelydeveloped and used for fishpond purposes in consonance with theapproved scientific practices and assistance of the personnel of thePhilippine Fisheries Commission (Presidential Directive of January 16,1967).[6] [Emphasis ours]

In compliance with the process for sales patent application, Democrito Mendoza, Sr. secured andsubmitted separate certifications from concerned government agencies such as the Provincial Engineer of the District Engineer of Cebu, the Municipal Council of Liloan, Cebu, the Commissioner of Customs, the of Public Works and Highways, among other offices, to determine if there were objections to hisapplication. Based on these certifications issued upon Democrito Mendoza, Sr.s request, it was ascertained ththere was no objection to said application and that the same did not interfere with any fu nction or proposedproject of the government.

Subsequently, notices of sale were published in the Nueva Er a and the Mindanao Mail, in additithe publication in the Official Gazette. The same were posted in conspicuous places within the vicinity ofproperty subject of the sale and on the bulletin boards of the Municipal Hall o f Liloan, Cebu, and of the Bof Lands, District VII-I, both in Cebu City.

In the interim, Presidential Decree No. 43, Providing for the Accelerated Development of the FiIndustry of the Philippines,[7] was issued on 9 November 1972. Whereupon all public lands, such as tidalswamps, mangrove and other swamps, marshes, ponds and streams within public lands, including public lleft dry during the lowest low tide and covered by water during the highest tide; and which are not needed forestry purposes were declared available for fishpond purposes and automatically transferred to the BureaFisheries for its administration and disposition.[8]

On 18 January 1973, a day before the scheduled auction sale of the disputed property,then Liloan Mayor Cesar Bugtai filed a letter-protest with the Director of Lands objecting to the proposed the property. According to Mayor Bugtai, the area was intended for development by the local governmenttourist attraction. Despite said opposition by the municipal mayor, the District Land Office of Cebu Cityproceeded with the scheduled auction sale on 19 January 1973, wherein Democrito Mendoza, Sr. was declwinner, being the sole bidder thereat. The opposition of Mayor Bugtai was subsequently recommended fodismissal by the Bureau of Lands for lack of merit.

Thereafter, then Acting Director of the Bureau of Lands Ramon N. Casanova recommended theapproval of Democrito Mendoza, Sr.s request for the issuance of a patent to the land covered by Sales(Fishpond) Application No. (VI-I) 41-A on grounds of justice and equity.

In the First Indorsement of then Secretary of Agriculture and Natural Resources Arturo Tanco, Jdated 5 March 1974 to the Office of the President, the recommendation of Acting Director of the Bureau oLands Ramon N. Casanova was favorably endorsed.

On 21 May 1974, then Presidential Executive Assistant Jacobo C. Clave issued a Memoranduminforming the Secretary of the Department of Natural Resources that President Marcos had approved therecommendation advising approval of the request of Democrito Mendoza, Sr. for the issuance of a patent othe disputed property.

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Prior to the formal award of the subject property, Democrito Mendoza, Sr., however, had caused the

property to be subdivided into Lots 1 and 2. Lot 1 was further subdivided into four, namely Lots 1-A, 1-B, 1-C,and 1-D. Thereafter, Democrito Mendoza, Sr. made an assignment of his rights and interests over Lots 1-B, 1-C,and 1-D in favor of his three children Gwendolyn,[9] Vilma,[10] and Democrito, Jr.,[11] all surnamed Mendoza. Forhimself, Democrito Mendoza, Sr. retained Lot 1-A[12] with an area of 215,838 square meters and Lot 2 with anarea of 241.61 square meters. Subsequently, Gwendolyn, Vilma, and Democrito, Jr. filed their respective salespatent applications for the property assigned to them by their father.

On 26 June 1974, Acting Director of the Bureau of Lands Ramon N. Casanova issued an Order awardingthe sales patents over the disputed property to Democrito Mendoza, Sr. and his three childrenGwendolyn, Vilma, and Democrito, Jr., respectively, to wit:

It appearing that the proceedings had in connection with the above-notedapplications were in accordance with law and existing regulations, the portions of the landapplied for which correspond to Lot No. 1-A & Lot No. 2, Si(F) (VI-I) 42-D are hereby awardedto Democrito T. Mendoza at P200.00 per hectare or P4,800.00 for the whole tract of 24.0000hectares; Lot No. 1-B, Si(F) (VI-I) 42-D, to Gwendolyn C. Mendoza at P200.00 per hectareor P4,600.00 for the whole tract of 23.0000 hectares; Lot No. 1-C Si(F) (VI-I) 42-D, to Vilma C.Mendoza at P200.00 per hectare or P4,600.00 for the whole tract of 23.0000 hectares andLot No. 1-D Si(F) (VI-I) 42-D, to Democrito C. Mendoza, Jr. at P200.00 per hectareor P4,477.62 for the whole tract of 23.3881 hectares .[13]

Following the registration of the sales patents with the Register of Deeds of Cebu, Original Certificates of Titlewere each issued to Democrito, Sr. ,[14] Gwendolyn,[15] Vilma,[16] andDemocrito, Jr.[17]

On 8 January 1982, in consideration of shares of stock in MENCA Development Corporation (MENCA)worth P77,283.00, Democrito Mendoza, Sr. executed a Contract of Exchange of Real Properties for Shares ofStock on 8 January 1982, whereby he ceded to MENCA Lot No. 2 and a portion of Lot No. 1 -A. The portiontendered to MENCA was later on known as Lot No. 1-A-1, while the lot retained by Democrito Mendoza, Sr. wasdenominated as Lot No. 1-A-2.

On 9 July 1982, Democrito Mendoza, Sr., for himself and on behalf of his daughters Gwendolynand Vilma, executed a Deed of Exchange wherein Lot No. 1 -A-2 and a portion of each lot belonging toGwendolyn and Vilma, respectively, were relinquished to Jacinto Velez, Jr. and Carmen Velez-Ting i n exchangefor properties enumerated in said instrument. The portion of the lots originally belonging to Gwendolynand Vilma that were given to Jacinto Velez, Jr. and Carmen Velez-Ting were thereafter denominated as Lots No.1-B-1 and 1-C-1, while the lots retained were labeled Lots No. 1-B-2 and 1-C-2.

Finally, on 9 May 1988, Democrito Mendoza, Sr., on behalf of his three children Gwendolyn, Vilma,and Democrito, Jr., executed another Contract of Exchange of Real Properties for Shares of Stock with MENCA,trading Lots No. 1-B-2, 1-C-2, and 1-D in exchange for 8,468 shares of stock in said corporation.

Sometime in 1988, a protest was filed by the fisherman-residents of L iloan against the issuance of thesales patents to the Mendozas. Acting thereon, the Department of Environment and Natural Resources (DENR)Regional Office No. 7, Cebu City, conducted an investigation. On 23 October 1990, based on the informationgathered by the DENR, showing that there were alleged irregularities in the i ssuance of the sales patentsawarded to the Mendozas, the Republic of the Philippines, represented by the Director of the Land ManagementBureau, filed with the RTC of Cebu, a complaint for Cancellation of Sales Patents and T itles

against Democrito Mendoza, Sr. and his three children Gwendolyn, Vilma, and Democrito, Jr., together wiRegister of Deeds of Cebu City.

According to the complaint, there was irregularity in the issuance of the sales patents covering thsubject properties since the area in question forms part of Silot Bay and used as communal fishing groundsthe residents of Liloan, Cebu, and hence, is not alienable and disposable. It is further maintained that the spatents were issued in violation of Section 23 of Presidential Decree No. 704, Fisheries Decree of 1975,[18

prohibits the disposal by sale of public land suitable for fishpond purposes .[19] Complainant also contendsthe issuance of the sales patents was attended by fraud and misrepresentation in that it was made to appearthe applications for sales patents that the areas sought to be patented were alienable and disposable tracts oland, when in fact the same form part of Silot Bay being used as communal fishing grounds by the residenof Liloan, Cebu.

On 8 July 1991, herein petitioner Republic of the Philippines filed an Amended Complaint impladditional party-defendants MENCA Development Corporation, Jacinto Velez, Jr., and Carmen Velez-Ting. Subsequently, the SilotBay Fishermans Association, Inc. filed a Complaint in Intervention on 24 Oc1991, claiming that its members have a legal interest in the cancellation of the sales patents as they are resaround Silot Bay and deriving their income from f ishing in the said disputed area.

After trial on the merits, the trial court, on 3 June 1996, rendered a Decision declaring the salespatents, as well as the original certificates of title issued to the Mendozas as null and void ab initio . Thus

WHEREFORE, premises considered, judgment is hereby rendered:

(1) Declaring Sales Patents Nos. 187, 188, 189 and 190together with its corresponding Original Certificates of Titles Nos. 0-9983,0-9980, 0-9981 and 0-9982 issued to defendantsDemocrito T. Mendoza,Sr., Democrito Mendoza, Jr., Gwendolyn Mendoza and Vilma Mendoza,absolutely null and void ab initio;

(2) Ordering the said defendants to surrender to the defendantRegister of Deeds for the Province of Cebu their respective ownersduplicate copies of Original Certificates of Titles Nos. 0-9983, 0-9980, 0-9981 and 0-9982, and directing the said defendant Register of Deeds forthe Province of Cebu to cancel the same and all the patent titlesemanating or springing therefrom; and,

(3) Declaring Lot 1-A, Lot 1-B, Lot 1-C and Lot 1-D Psd. 07-01-00026 as inalienable and non-disposable being parts o f Silot Bay.[20]

Aggrieved by the aforequoted Decision, the Mendozas and MENCA Cor poration lodged an appthe Court of Appeals. On 30 March 2001, the appellate court rendered the herein assailed Decision, thepertinent portions of which state:

The separate appeals interposed by the defendants are impressed with merit.

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As We see it, the primordial issue is whether or not appellants are qualified to ownthe property subject matter of this controversy. Implied in this issue is a more basic one,that is whether or not said property is alienable and disposable and, therefore, subject toprivate appropriation through modes recognized under the Public Land Act.

The lower court resolved the issue in the negative on the main reasoningthat Silot Bay is acommunal fishing ground , and that the area in question is actually part ofthe seabed, hence, non-alienable. It added that, assuming the availability for disposition ofthe area applied for, appellant Democrito, Sr. is barred from asserting ownership thereof inview of Section 11, Article XIV of the 1973 Constitution, xxx.

The Court cannot bring itself to agree to the rationale for the trial courts posture.Our reasons are, as follows:

One, the property involved in this case is not a communal fishing ground, aserroneously concluded by the court a quo. While Silot Bay is a potential fishpond area, theremust be, for it to come within the term communal fishing ground , a declaration to thateffect by the appropriate agency.

We have carefully perused the records before Us and found nothing thereinevidencing such a declaration by the DANR respecting Silot Bay. What the records yield is thefact that Silot Bay, as shown by a Land Classification (LC) map, was once categorized astimberland. It cannot be overemphasized that the prerogative of classifying public landspertains to administrative agencie