S.A 2020/21 B.E CRIMINAL LAW | Question #10
SUGGESTED ANSWERS TO THE 2020/21 BAR EXAMINATIONS IN CRIMINAL LAW
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During a Senate hearing in aid of legislation, a Senator's staff member took a resource person's mobile phone without their consent or knowledge.
While the hearing was ongoing, the staff member read the resource person’s messages contained in the mobile phone and hurriedly wrote notes which were passed to the Senator.
Thereafter, the staff surreptitiously returned the mobile phone. The resource person would not have noticed that the mobile phone was taken had it not been for a TikTok video posted by a journalist who was present during the hearing. The TikTok video caught the entire act of the Senator's staff member. The TikTok video even had accompanying music and narration. The video became viral.
Can the staff member be liable for the Theft of the mobile phone? Explain briefly.
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SUGGESTED ANSWER:
Yes, the Senator’s staff member can be held liable for theft.
Article 308 of the Revised Penal Code provides that 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.
In this case, the staff member took the mobile phone of the resource person without the latter’s consent or knowledge; thus, the taking was unlawfully done without employing violence or intimidation against persons or force upon things. Intent to gain is presumed from the unlawful taking of the mobile phone and, in this case, the staff member actually utilized the mobile phone by reading the messages in the mobile phone.
While the staff member returned the phone, such an act cannot negate the theft that has been consummated. In theft, it is not necessary that there has been real or actual gain. It is enough that, on taking them, the accused was then actuated by the desire or intent to gain (People v. Mercado, G.R. Nos. L45471 and L-45472, 15 June 1938).
Code: S.A 2020/21 B.E CRIMINAL LAW | Question #10
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