Elements of theft; intent to gain

Theft is 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.[1]  As defined and penalized, the elements of the crime are:

(1) there was taking of personal property; 
(2) the property belongs to another; 
(3) the taking was done with intent to gain; 
(4) the taking was without the consent of the owner; and 
(5) the taking was accomplished without the use of violence against, or intimidation of persons or force, upon things.[2] 

Intent to gain or animus lucrandi is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation.[3] Although proof as to motive for the crime is essential when the evidence of the theft is circumstantial, the intent to gain is the usual motive to be presumed from all furtive taking of useful property appertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator.[4] As to the concept of "taking"
The only requirement for a personal property to be the object of theft under the penal code is that it be capable of appropriation. It need not be capable of "asportation," which is defined as "carrying away." Jurisprudence is settled that to "take" under the theft provision of the penal code does not require asportation or carrying away.

To appropriate means to deprive the lawful owner of the thing. The word "take"' in the Revised Penal Code includes any act intended to transfer possession which x x x may be committed through the use of the offenders' own hands, as well as any mechanical device x x x.[5]

[1] REVISED PENAL CODE, Art. 308, Par. 1. 
[2] See People v. Tanchanco, G.R. No. 177761, April 18, 2012, 670 SCRA 130, 140-141; Beltran, Jr. et al. v. The Hon. Court of Appeals et al., 662 Phil. 296, 310-311 (2011); and Laurel v. Judge Abrogar, et al., 596 Phil. 45, 56 (2009).
[3] Ringor v. People, G.R. No. 198904, December 11, 2013, 712 SCRA 622, 631-632 and Philippine National Bank v. Tria, G.R. No. 193250, April 25, 2012.
[4] Beltran, Jr. et al. v. The Hon. Court of Appeals, et al., supra note 14, at 313-314.
[5] Laurel v. Judge Abrogar, et al., supra note 14, at 57-58.

Popular Posts