Stealing a pencil but returning it immediately

On Twitter, Justice Marvic M.V.F. Leonen asked: "CRIMINAL LAW: Without permission or consent, A took a pencil from his seatmate B. Later on after feeling guilty about the deed, A returned it to B. Was theft committed? Explain briefly." Unsurprisingly, this went viral not only on Twitter but also on Facebook and other social media platforms. Different attempts to answer the question have been offered by netizens, most of whom are either law students, lawyers or law enthusiasts.

On Twitter, the following answers were given, followed by a note by Project Jurisprudence.

This answer by Denise zeroes in on the criminal intent of the perpetrator and the stage of consummation of the crime. According to Denise, the return of the item puts the act outside the consummated stage of commission. However, it must be pointed out that case law has been consistent in saying that "mere taking" already consummates the crime of theft.

The case of Valenzuela v. People[1] is instructive. In that case, the Supreme Court said: "unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same." Moreover, return of the property stolen is neither a justifying nor an exempting circumstance. In fact, under Article 13 of Act No. 3815,[2] otherwise known as the Revised Penal Code), return of the stolen thing may be considered as a circumstance similar or analogous to voluntary surrender.[3]

In Mar's answer, an old doctrine on the element of "control and disposal" was cited. It must be emphasized that this is no longer the state of jurisprudence. Mar also mentions that it is of no moment that A returned the stolen property to B, which is correct, but no explanation was given as to why.

Regarding the "free disposition" doctrine, the Supreme Court has said: "there is no language in Article 308 that expressly or impliedly allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has been produced."[4]

Light Love Law's answer relies heavily on the elements of the crime of theft. Under Article 308 of the Revised Penal Code, 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. Theft is likewise committed by:

Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and
Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm products.

My.Road.To.Emmaus' answer is a good defense theory but the facts of the problem already state that A took the pencil without B's consent; hence, intent to gain may be presumed from the taking thereof. Moreover, the problem states that B felt guilty which prompted him/her to return the pencil. Such feeling of guilt is not consistent with the human experience of lack of intent to gain from the stolen property.

"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."[5]