DISSENTING OPINION

VALENCIA, P.:

I vote to DENY the aforementioned decision.

In its petition, the accused sought to assail the decision and resolution of the Court of
Appeals, convicting him of the crime of qualified theft with dishonored check as the object. The
prosecution tried to establish evidence that the facts constitute the crime of qualified theft; but
this was negated by the resolution promulgated last 13 July 2009, in view that the personal
property subject of the theft must have some value, as the intention of the accused is to gain from
the thing stolen.1 In line with this, I am constrained to dissent. In my view, the decision ruled out
by the Court of Appeals need not be reversed.

As laid down by the Court of Appeals, the facts proven by the prosecution are sufficient
to constitute the crime of qualified theft. To wit, the elements are defined under Article 3082, in
relation to Article 3103, both of the Revised Penal Code, which are: (1) the taking of personal
property - as shown by the fact that petitioner, as collector for Mega Foam, did not remit the
customer's check payment to her employer and, instead, appropriated it for herself; (2) said
property belonged to another the check belonged to Baby Aquino, as it was her payment for
purchases she made; (3) the taking was done with intent to gain this is presumed from the act of
unlawful taking and further shown by the fact that the check was deposited to the bank account
of petitioner's brother-in-law; (4) it was done without the owners consent - petitioner hid the fact
that she had received the check payment from her employer's customer by not remitting the
check to the company; (5) it was accomplished without the use of violence or intimidation
against persons, nor of force upon things the check was voluntarily handed to petitioner by the
customer, as she was known to be a collector for the company; and (6) it was done with grave
abuse of confidence petitioner is admittedly entrusted with the collection of payments from
customers.

This was buttressed by a provision from the Revised Penal Code which states that the
personal property subject of the theft must have some value, as the intention of the accused is to
gain from the thing stolen4, which was further bolstered by Article 3095, where the law provides
that the penalty to be imposed on the accused is dependent on the value of the thing stolen.
Hence, it was ruled that had performed all the acts to consummate the crime of theft, had it not
been impossible of accomplishment in this case.

The Court of Appeals judgment must have been affirmed. All the elements amounting to
the crime of qualified theft are present in this case, as shown above. The crime must have been
regarded as a consummated felony, because all the elements necessary for its execution and
accomplishment are present.6
 To reiterate what has been ruled out in Valenzuela v. People7, the ability of the offender
to freely dispose of the property stolen is not a constitutive element of the crime of theft, and
hence, is immaterial if it would be based on the statutory definition of theft.

Unlawful taking, which is the deprivation of ones personal property, is the element
which produces the felony in its consummated stage. Hence, it is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of
the same. 8

Hence, the argument that it is an impossible crime because the dishonored check which
has no value made it inherently impossible of accomplishing is of no moment. The crime is
consummated when the accused acquires possession of the property, how momentarily this may
be, and it is not necessary that the property be taken into the hands of the accused, or that he
should have actually carried the property away, out of the physical presence of the lawful
possessor, or that he should have made his escape with it.9

It is true that the check was dishonored. Had it not been for this fact, the crime is
possible, not impossible. All of the elements of the crime of qualified theft are present, and its
accomplishment, from the moment the accused gained possession of the check, regardless of the
fact that it was dishonored, already consummated the felony.

Assuming arguendo that the crime is not consummated because the ability of the
offender to freely dispose of the property stolen delves into the concept of taking itself, the effect
would be to downgrade the crime to its attempted stage10, because the offender does not perform
all the acts of execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance11. Also, it is already well settled in this jurisprudence
that there can be no crime of frustrated theft12. This is immaterial in this case, however, because
the unlawful taking by the petitioner, that is, the moment they took possession of the check
already satisfies the consummation of the crime imputed.

Lastly, impossible crimes refer to the acts performed by the offender which cannot produce an
offense against person or property because: (1) the commission of the offense is inherently
impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b)
ineffectual13. The phrase inherent impossibility of accomplishment in the realm of Philippine
jurisprudence means that the act intended by the offender is by its nature one of impossible
accomplishment. There must be either (1) legal or (2) physical impossibility14.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a
crime. Legal impossibility would apply to those circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the law; (2) there is intention to perform the
physical act; (3) there is a performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. The impossibility of killing a person
already dead falls in this category. On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or beyond his control prevent the consummation
of the intended crime. One example is the man who puts his hand in the coat pocket of another
with the intention to steal the latter's wallet and finds the pocket empty.

The facts of this case constitute that of factual impossibility because it was due to the extraneous
circumstance of the check being unfunded, a fact unknown to the petitioner that time, that
prevented the crime from being produced.

However, to reiterate, the most fundamental notion in the crime of theft is the taking of
the thing to be appropriated into the physical power of the thief. This thing solely constitutes the
crime of theft and made it consummated, regardless of the face value thereof15. An example
given above for factual impossibility cannot be appreciated and the case does not fall within the
bounds of this category since the given example was not able to take anything because of an
empty pocket. Another example in this case is an employee who, having known the safe
combination, opens the safe in the office for the purpose of stealing money, but who finds the
safe empty16. Such, however, can still not be on its face as that of the given case because in the
latter, there was no object of unlawful taking when in the present case; the object is represented
by the check therein.

It is also noteworthy to mention the ruling held in US v. Ah Chong case wherein the Court
held that "By reference to the intention, we inculpate or exculpate others or ourselves without
any respect to the happiness or misery actually produced. Let the result of an action be what it
may, we hold a man guilty simply on the ground of intention; or, on the same ground, we hold
him innocent."17

Finally, we acknowledge the fact that the Philippine jurisprudence still stems out from the
juristic theory, wherein a man is a rational and calculating being who guides his actions with
reference to the principles of pleasure and pain. Thus, man refrains from criminal acts if
threatened with punishment sufficient to cancel the hope of possible gain or advantage.18