Caught Shoplifting Before Leaving the Store: Is It Already Theft?

Article 6 of the Revised Penal Code is not the theft article, but it explains the stages of a felony:

An attempt is a step earlier: the offender starts the crime by overt acts but does not perform all the acts of execution, for a reason other than his or her own spontaneous desistance.

Two old decisions of the Court of Appeals had found accused persons guilty of "frustrated theft" in situations like a thief caught before getting away with the goods. The Supreme Court settled the question in Valenzuela.

The facts below are from the decision. They are not a made-up example.

On an afternoon in May 1994, a security guard posted at the open parking area of a supermarket in a mall complex along North EDSA saw a man hauling a push cart with cases of "Tide" detergent out to an open parking area. The man unloaded the cases where a companion was waiting, went back in, and came out with more. He then hailed a taxi, and his companion loaded the cartons into it. The guard stopped the taxi as it was leaving the parking area and asked for a receipt. The two ran, and the guard fired a warning shot. They were apprehended at the scene, and the goods were recovered.

The trial court convicted both of consummated theft, and the Court of Appeals affirmed the petitioner's conviction. Before the Supreme Court, the accused argued that he should be convicted only of frustrated theft, because he was never in a position to freely dispose of the goods.

The Court denied the appeal and kept the conviction for consummated theft. Its main points:

• There is no crime of frustrated theft under the Revised Penal Code. In the Court's words: "Theft can only be attempted or consummated."
• The taking is complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of it.
• The ability to freely dispose of the stolen goods is not an element of theft under Article 308. The Court said that treating it as one would introduce a convenient defense that does not reflect any legislated intent.

The Court also noted that a conviction for only attempted theft would have been more favorable to the accused. He lost that benefit because the taking was already complete.

Once a person takes hold of an item with intent to gain and without the store's consent, the theft is usually consummated, even if:

• the person is still inside the store;
• the person is stopped at the exit or in the parking area;
• the store gets the item back right away.

The value of the item then decides the bracket under Article 309, as amended by Republic Act No. 10951. See Theft penalties by amount.

Only when the taking was not yet complete. Under Article 6, an attempt is a crime that has started by overt acts but where not all acts of execution were performed. Whether a particular set of facts is an attempt or a completed theft depends on the evidence, and the court decides.

These are made-up examples to show how the rules work. They are not advice for any real case.

Mark hides a ₱1,200 bottle of perfume in his bag and walks toward the exit. The guard stops him at the door and finds the perfume. Following Valenzuela, the theft may already be consummated, because Mark had taken the perfume with intent to gain. The value is more than ₱500 up to ₱5,000, so the penalty under Article 309 is arresto mayor.

Grace puts a ₱350 lipstick in her pocket, pays for her other items at the counter and is stopped by the guard. The lipstick is recovered. Following Valenzuela, this may already be consummated theft, and getting the item back does not undo it. The value is up to ₱500, so the bracket is arresto mayor in its minimum and medium periods.

Some kinds of theft carry a heavier penalty because of who took the property or what was taken. See What is qualified theft?

The penalty follows the value of the item, not the place where the person was caught. For the full list of brackets, see What is the penalty for theft in the Philippines?

If you or a family member was caught and a complaint is being filed, talk to a lawyer as soon as possible. A lawyer can check whether the taking was complete, how the value will be proven, whether any statement was signed and what penalty bracket applies. If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.