[No. 13785. October 8, 1918.

of frustrated theft. He appealed to the Court of First Instance of the city

of Manila and again he was found guilty of the crime of frustrated

THE UNITED STATES, plaintiff and appellee, vs.TOMAS

ADIAO, defendant and appellant.

theft, and was sentenced to pay a fine of P100, with subsidiary

imprisonment in case of insolvency, and to pay the costs.
755

1. 1.THEFT; WHEN CONSUMMATED OR FRUSTRATED.

VOL. 38, OCTOBER 8, 1918.

755

One A., a Customs' inspector, abstracted a leather belt valued

at eighty centavos from the baggage of a Japanese and
secreted the belt in his desk in the Custom House, where it
was found by other Customs employees.Held: That since the
offender had performed all of the acts of execution necessary
for the accomplishment of the felony, he is guilty of the
consummated crime of theft.
1. 2.ID. ; ID.The decisions of the supreme court of Spain of
October 14, 1898, December 1, 1897, and June 13,1882,
cited and approved.

United States vs. Adiao.

The sole error assigned on appeal is that the lower court erred in
holding that the defendant was guilty of the crime of theft as disclosed
by the facts appearing of record. We have examined the evidence
carefully and from our study are unable to say that the proof is
contrary to the findings of the lower court. Stated in one sentence, the
defendant, Tomas Adiao, a customs inspector, abstracted a leather belt
valued at fK).80, from the baggage of a Japanese named T. Murakami,
and secreted the belt in his desk in the Custom House, where it was
found by other customs employees.
Based on these facts, the Court is of the opinion that the crime can

APPEAL from a judgment of the Court of First Instance of Manila. V.

del Rosario, J.
The facts are stated in the opinion of the court.

not properly be classified as frustrated, as this word is defined in

article 3 of the Penal Code, but that since the offender performed all of
the acts of execution necessary for the accomplishment of the felony,

Victoriano Yamzon for appellant.

he is guilty of the consummated crime of theft. The fact that the

Attorney-General Paredesfor appellee.

defendant was under observation during the entire transaction and that
he was unable to get the merchandise out of the Custom House, is not

MALCOLM, J.:
The defendant was charged in the Municipal Court of the city of
Manila with the crime of theft. He was found guilty of the lesser crime

decisive; all the elements of the completed crime of theft are present.
The following decisions of the supreme court of Spain are in point:

"The defendant was charged with the theft of some fruit from the

guards who were stationed in another room near-by. The court

land of another. As he was in the act of taking the fruit he was seen by

considered this as consummated robbery, and said: "*

a policeman, yet it did not appear that he was at that moment caught by

accused *

the policeman but sometime later. The court said: "* * *. The trial

from the moment he took it from the place where it had been, and

court did not err * * * in considering the crime as that of consummated

having taken it with his hands with intent to appropriate the same, he

theft instead of frustrated theft inasmuch as nothing appears in the

executed all the acts necessary to constitute the crime which was

record showing that the policemen who saw the accused take the fruit

thereby produced; only the act of making use of the thing having been

from the adjoining land arrested him in the act and thus prevented him

frustrated, which, however, does not go to make the elements of the

from taking full possession of the thing stolen and even its utilization

consummated crime." (Decision of the supreme court of Spain, June

by him for an interval of time." (Decision of the supreme court of

13, 1882.)

Spain, October 14, 1898.)

*' The

* having materially taken possession of the money

There exists the aggravating circumstance that advantage was taken

Defendant picked the pocket of the offended party while the latter

by the offender of his public position. Wherefore, in view of the

was hearing mass in a church. The latter on account of the solemnity of

provisions of articles 517 and 518, No. 5, of the Penal Code, and there

the act, although noticing the theft, did not do anything to prevent it.

being present one aggravating circumstance compensated by no

Subsequently, however, while the defendant was still inside the church,

mitigating circumstance, the penalty must be imposed in the maximum

the offended party got back the money from the defendant. The court

degree.

said that the defendant had performed all the acts of execution and

Judgment is reversed and the defendant and appellant is sentenced

considered the theft as consummated. (Decision of the supreme court

to three months and one day of arresto mayor,with the costs of all

of Spain, December 1, 1897.)

instances against him. The merchandise in question, attached to the

The defendant penetrated into a room of a certain house and by

means of a key opened up a case, and from the case took a small box,
which was ,also opened with a key, from which in turn he took a purse
containing 461reales and 20 cntimos, and then he placed the money
over the cover of the case; just at this moment he was caught by two

record as Exhibit A, shall be returned to the lawful owner, T.

Murakami. So ordered.
Torres, Johnson, Street,Avancena, and Fisher, JJ.,concur.
Judgment reversed, penalty increased.
757