Title Ten

CRIMES AGAINST PROPERTY

What are the crimes against property?

They are:
(1) Robbery w i t h violence against or intimidation of persons. (Art.
294)
(2) Attempted and frustrated robbery committed under certain
circumstances. (Art. 297)
(3) Execution of deeds by m e a n s of violence or intimidation. (Art.
298)
(4) Robbery in an inhabited house or public building or edifice
devoted to worship. (Art. 299)
(5) Robbery in an uninhabited place or in a private building. (Art.
302)
(6) Possession of picklocks or similar tools. (Art. 304)
(7) Brigandage. (Art. 306)
(8) Aiding and abetting a band of brigands. (Art. 307)
(9) Theft. (Art. 308)
(10) Qualified theft. (Art. 310)
(11) Theft of the property of the National Library and National
Museum. (Art. 311)
(12) Occupation of real property or usurpation of real rights in
property. (Art. 312)
(13) Altering boundaries or landmarks. (Art. 313)
(14) Fraudulent insolvency. (Art. 314)
(15) Swindling. (Art. 315)
(16) Other forms of swindling. (Art. 316)
(17) Swindling a minor. (Art. 317)
(18) Other deceits. (Art. 318)

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 CRIMES AGAINST PROPERTY

(19) Removal, sale or pledge of mortgaged property. (Art. 319)

(20) Destructive arson. (Art. 320)
(21) Other forms of arson. (Art. 321)
(22) Arson of property of small value. (Art. 323)
(23) Crimes involving destruction. (Art. 324)
(24) Burning one's own property as means to commit arson. (Art.
325)
(25) Setting fire to property exclusively owned by the offender. (Art.
326)
(26) Malicious mischief. (Art. 327)
(27) Special cases of malicious mischief. (Art. 328)
(28) Damage and obstruction to m e a n s of communication. (Art. 330)
(29) Destroying or damaging statues, public m o n u m e n t s or paintings.
(Art. 331)

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 Chapter One
ROBBERY IN GENERAL *

A r t . 2 9 3 . Who are guilty of robbery. — A n y p e r s o n w h o ,

with intent to gain, shall take any personal property belonging
to another, by means of violence against or intimidation of
a n y person, or using force u p o n anything, shall be guilty of
robbery.

Robbery, defined.
Robbery is the taking of personal property, belonging to another, with
intent to gain, by m e a n s of violence against, or intimidation of any person,
or using force upon anything.

Classification of robbery.
1. Robbery with violence against, or intimidation of persons. (Arts. 294,
297 and 298)

2. Robbery by the use of force upon things. (Arts. 299 and 302)

Elements of robbery in general.

a. That there be (1) personal property; (2) belonging to another;
b. That there is (3) unlawful taking of that property;
c. That the taking m u s t be (4) with intent to gain; and
d. That there is (5) violence against or intimidation of any person, or
force upon anything.

Personal property.
The property taken must be personal property, for if real property is
occupied or real right is usurped by means of violence against or intimidation
of person, the crime is usurpation. (Art. 312)

See P.D. No. 1612 under Art. 19, Book I.

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 Art. 293 ROBBERY IN GENERAL

Prohibitive articles may be the subject matter of robbery; opium,

for instance.

U.S. vs. Sana him

(28 Phil. 404)
Facts: While several persons were perfecting the purchase and sale of
several tins of opium, certain police officers, conspiring together with some
Chinese to obtain possession of said opium, came to the scene and by means
of intimidation seized the opium, without causing the prosecution of the
offenders, and thereafter said police officers appropriated the opium.
Held: Robbery was committed.

Belonging to another.
Thus, one who, by m e a n s of violence or intimidation, took his own
property from the depositary is not guilty of robbery.
Since the personal property m u s t belong to another, a co-owner or a
partner cannot commit robbery or theft with regard to the co-ownership or
partnership property.
Art. 293 uses the phrase "belonging to another" which m e a n s that the
property taken does not belong to the offender. The person from whom the
personal property is taken need not be the owner. Possession of the property
is sufficient.
In the commission of the crime of robbery, it is noL necessary that the
person from whom the property is taken by m e a n s of threats and violence,
shall be the owner thereof. It is sufficient if the property is taken from h i m
by means of threats and violence, for the purpose of gain, on the part of
the person appropriating it. The possession of the property is sufficient.
Ownership is not necessary. Robbery m a y be committed from a bailee or
from a person who himself has stolen it. It h a s even been held that the
taking of clothing from the body of a dead person constitutes robbery, as
the property of the executor. Even the owner of property m a y be guilty of
robbery when, for instance, he takes it from the possession of a bailee, with
the intent to charge the bailee with its value. (U.S. vs. Albae, 29 Phil. 86)

Does the phrase "belonging to another," in relation to the property

taken, mean that the naming of the owner is a matter of essential
description of the crime?
Yes, if the crime charged is robbery with homicide in view of the capital
punishment attached to the crime. But w h e n the accused is prosecuted for
robbery with intimidation or violence resulting only in physical injuries, or

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for robbery by the use of force upon things, the n a m e of the real owner is
not essential so long as the personal property taken does not belong to the
accused.
In the case of U.S. vs. Lahoylahoy, et al, 38 Phil. 330, the accused
were prosecuted for robbery with multiple homicide. While the information
alleged that the property taken belonged to Roman Estriba, the proof showed
that the person robbed w a s J u a n a Seran. For lack of conformity between
the allegation and the proof respecting the ownership of the property, the
Supreme Court held that it w a s impossible to convict the accused of robbery.
The accused are each convicted of four separate homicides.
In the case of People vs. Santo Tomas, 49 O.G. 2905, the Court of
Appeals explained the ruling, as follows:
The case of U.S. vs. Lahoylahoy, relied upon by the defense, is
predicated upon facts entirely different from the facts of the instant case.
In that case, the allegation of the real offended party in the robbery case
w a s an essential description of the crime because if the robbery was not
proven, the complex crime of robbery with homicide, to which the capital
punishment is attached, could not be sustained. The Supreme Court in
that case construed the law strictly in favor of the accused because of the
seriousness of the crime.

In robbery, the personal property of another is taken by the offender

against the will of the owner.
Robbery can be committed only by taking personal property of another
against the latter's will. Where the accused received certain jewels in trust
or for safekeeping from the owner's agent, said accused cannot be held liable
for robbery, because she did not "take" the jewels. (U.S. vs. Alcantara, 6
Phil. 387)
If A delivered a package containing an article to B by mistake and,
w h e n A asked for the return thereof, B threatened to kill him if A would get
it back, B is not liable for robbery even if he had intent to gain and employed
intimidation, because he did not take the property from A.

The taking of personal property must be unlawful.

Thus, a secret service agent who made search for and seized moneys in
a dwelling house, under lawful orders from his superiors, and appropriated
a part thereof to his own use before turning over the balance to his superiors
is not guilty of robbery.
The unlawful taking of personal property is an essential part of
the crime of robbery, and where the taking was lawful and the unlawful

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 Art. 293 ROBBERY IN GENERAL

misappropriation was subsequent to such taking, the crime is estafa or

malversation. (U.S. vs. Atienza, 2 Phil. 242)
But in a case where four Chinese, a municipal treasurer, a police
sergeant and two policemen pretended to purchase opium from certain
Moros, and when the opium was to be delivered, the municipal officials
arrested the carrier of the opium and they, together with the four Chinese,
appropriated the opium, it was held that they were guilty of robbery. While
the seizure of the opium and the arrest of its carrier by the agents of the
authorities were lawful, it was not lawful for said agents to seize the opium
in order to appropriate it.
The fact that the agents of the authorities, apparently acting in
compliance with the law, but really with intent to obtain unlawful gain, did,
with intimidation, seize a forbidden article, constitutes robbery. As long as
the authorities or their agents have not legally taken charge of the forbidden
article, it continues to be private property, and they have acted, not as agents
of the authorities in the fulfillment of their duties, but merely as private
parties. Ownership of the forbidden article passes to the government only
after legal seizure thereof.
Hence, if the agents of the authorities, in the beginning, lawfully
seized the forbidden article and conceived the idea of misappropriating it
only after it came into their possession, then the crime would be estafa.
(U.S. vs. Sana Lim, 28 Phil. 404)

Note: It should be malversation, not estafa.

Unlawful taking, when complete.

1. As to robbery with violence against or intimidation of persons.
From the moment the offender gains possession of the thing, even if
the culprit has had no opportunity to dispose of the same, the unlawful
taking is complete. The fact that the defendant in his flight threw away
the property stolen or that it fell without his knowledge, does not affect the
nature of the crime.
Defendant saw his victim put money into his coat pocket. The next day
defendant held him up and deprived him of the coat, but finding the money
was not there, defendant threw away the coat. Held: Guilty of robbery of the
coat, the offense having been complete w h e n defendant forcibly deprived his
victim thereof. (Brown vs. State, 61 Tex. Cr. 334, 136 SW 265)
2. As to robbery with force upon things.
When the culprit had already broken the floor of the bodega, had
entered it, and had removed one sack of sugar from the pile, but w a s caught
in the act of taking out the sack of sugar through the opening on the floor, it
was frustrated robbery only. (People vs. Del Rosario, C.A., 46 O.G. 4332)

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 ROBBERY IN GENERAL Art. 293

Note: It would s e e m that in this kind of robbery, the thing must be

taken out of the building to consummate the crime.

"Taking," as an element of robbery, means depriving the offended

party of ownership of the thing taken with the character of
permanency.
A w a s the owner of a gun kept in a drawer which w a s locked. B, A's
son, destroyed the drawer's lock and obtained the gun in order to threaten
A with it, as in fact B threatened A with said gun.
Held: B had no intention of depriving A of the ownership of the gun
with any character of permanency, negativing therefore the essential
element of "taking" in the crime of robbery. (People vs. Kho Choc, C.A., 50
O.G. 1667)
Note: The accused in this case w a s convicted of grave threats (Art. 282),
for threatening the offended party with the said gun, demanding money,
but without attaining his purpose, because the offended party reported the
matter to the police.

Intent to gain.
Intent to gain is presumed from the unlawful taking of personal
property.
The intent to gain, being an internal act, cannot be established by
direct evidence, except in case of confession by the accused. It must,
therefore, be deduced from the circumstances surrounding the commission
of the offense. As a general rule, however, the unlawful taking of personal
property belonging to another involves intent to gain on the part of the
offender. (People vs. Sia Teb Ban, 54 Phil. 52)
The taking of personal property belonging to another should not be
under claim of ownership. One who takes property openly and avowedly
under claim of title proffered in good faith is not guilty of robbery even
though the claim of ownership is untenable. (U.S. vs. Manluco, et al., 28
Phil. 360)
Absence of intent to gain will make the taking of personal property
grave coercion if there is violence used. (Art. 286)

The element of "personal property belonging to another" and that

of "intent to gain" must concur.
1. If the accused, with intent to gain, took from another, personal
property which turned out to be his own property, the property not

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 Art. 293 ROBBERY IN GENERAL

belonging to another, he cannot be held liable for robbery, even if in

taking it, the accused used violence against or intimidation of person,
or force upon anything.
2. If he took personal property from another, believing that it was his
own property, but in reality it belonged to the offended party, there
being no intent to gain, he cannot be held liable for robbery, even if the
accused used violence against or intimidation of person, or force upon
anything.

Violence or intimidation, as an element of robbery.

The violence must be against the person of the offended party, not
upon the thing taken.
Theft, not robbery, was committed in a case where the accused cut
with a bolo the strings tying the opening of a sack containing palay and then
took the palay. (People vs. Adame, C.A., 40 O.G., Supp. 12, 41)
The reason for this ruling is that Art. 293 states that the taking of
any personal property belonging to another m u s t be, among other means,
by means of violence against x x x any person."

People vs. Villar

(C.A., GR. No. 14289-R, July 29, 1955)

Facts: The offended party w a s heading for Oregon Street w h e n the

accused from behind, snatched the bag she w a s t h e n carrying. The accused
ran away after snatching the bag.
Held: The crime committed is theft. In taking away the bag, the
accused did not use "violence against or intimidation of any person." In
U.S. vs. Samonte (8 Phil. 286), the case w a s found to be robbery because,
after snatching the money from his hand, the offended party w a s pushed
to prevent him from recovering the seized property. In U.S. vs. Blanco (10
Phil. 298), besides snatching the pawn ticket from the hand of the offended
party, the offender used intimidation on the despoiled party. In People vs.
Mallari, et al. (60 Phil. 400), the offenders grabbed the hands of the victim
and wrested the wallet from him.

The intimidation exists w h e n it causes the fear or fright of the victim.

Thus, a threat of arrest and prosecution, pointing a gun or a knife to the
victim, and the like — are forms of intimidation.

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 ROBBERY IN GENERAL Art. 293

Intimidation need not be threat of bodily harm.

People vs. Palabao

(C.A., 51 O.G., 790)

Facts: The chief clerk in the office of the municipal treasurer dropped
at the sari-sari store of a couple to inspect their petty sales book which was
allegedly defective because certain sales were not entered. The chief clerk
took with him the sales book. The s a m e night, the accused went to the store
bringing with him the sales book which had been confiscated by the chief
clerk. The accused demanded P25 for its return, telling the couple that the
municipal treasurer needed the amount and threatened the spouses that
if they would not give this amount, they would have to pay P60 fine and to
close the store. The accused w a s able to take from the spouses P5.00, the
only amount they had, and one dozen eggs.

Held: There is sufficient intimidation. The spouses were intimidated

to make their choice between two alternatives, to wit: either to part with
their money or close their store and pay a fine of P60. The accused succeeded
in taking the money and eggs through the effect of fear or fright.

The violence or intimidation must be present before the taking of

personal property is complete.
If there is violence or intimidation at any time before asportation is
complete, the taking of personal property is qualified to robbery. It is not
necessary that violence or intimidation should be present from the very
beginning.
Defendants entered a house by cutting the rope that tied the door,
opened the trunk and were about to take money in the amount of P36 from
the trunk. When discovered, one of t h e m struck the owner in the mouth.
Held: Robbery with violence w a s committed. (People vs. Campa, et al., C.A.,
37 O.G. 1482; U.S. vs. Nueca, 7 Phil. 511)
But if A picked the pocket of B and ran away with the latter's wallet,
containing money bills, and when B chased and overtook him, A turned
around and boxed the face of B, inflicting slight physical injuries, or
intimidated B with a knife, the crime committed is not robbery with violence
against or intimidation of persons. A committed two crimes: (1) theft (Art.
308); and (2) slight physical injuries (Art. 266), or grave threats (Art. 282,
par. 2) for intimidating B with a knife.

Exception:
But when the violence results in: (1) homicide, (2) rape, (3) intentional
mutilation, or (4) any of the serious physical injuries penalized in paragraphs

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 Art. 293 ROBBERY IN GENERAL

1 and 2 of Art. 263, the taking of personal property is robbery complexed with
any of those crimes under Art. 294, even if the taking was already complete
when the violence was used by the offender.
In denning the special complex crimes penalized in paragraphs 1, 2
and 3 of Art. 294, the phrase "by reason" or "accompanied by" is used, which
indicates that even if the violence resulting in homicide, rape, intentional
mutilation, or serious physical injuries is used by the offender after the
taking of personal property belonging to another, the crime is still robbery
complexed with any of those crimes.
Although the killing of Evaristo Tuvera by the robbers w a s perpetrated
after the consummation of the robbery and after the robbers had left
the victim's house, the homicide is still integrated with the robbery or is
regarded as having been committed "by reason or on the occasion" thereof.
(People vs. Barut, 89 SCRA 14)
Note: Evaristo Tuvera w a s one of those who constituted themselves as
rescue party and repaired to the vicinity of the house of Francisco Lazaro,
the victim of the robbery.

But the taking of personal property need not be immediately after

the intimidation.
The complainant was told by the accused, who called himself one from
the Secret Service Division of the Philippine Constabulary, that he w a s
apprehended because he was sending a letter outside of the Philippines,
an act which was against the law, and that he would be taken to the camp.
They asked from him P5,000.00, otherwise he would be deported. Being
ignorant of the law, he thought, as he w a s made to believe, that he did
something wrong. He haggled with t h e m until the amount demanded w a s
reduced to P2,000.00. They promised him that "should I finally give the
amount then the alleged case against me would be dropped." Securing the
money from someone, he gave it to the accused who in turn gave the letter
to him. Held: The accused is guilty of robbery by m e a n s of intimidation.
(People vs. Chiong, C.A., 69 O.G. 8671)

"Using force upon anything."

Robbery is also committed by using force upon anything in taking
personal property belonging to another with intent to gain.
But the use of force upon things will not make the taking of personal
property robbery, if the culprit never entered a house or building. Thus,
removing by force the tires of an automobile while parked on the street and
taking them away is not robbery, because the culprit did not use force to
enter a house or building.

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 ROBBERY IN GENERAL Art. 293

Breaking the glass of the show-window of a bazar and thereafter

taking forty watches of various m a k e s valued at P627.50, is not robbery, it
appearing that the accused did not enter the building but merely introduced
his hand through the broken glass in order to remove the watches from the
show-window. (People vs. Adorno, C.A., 40 O.G. 567)
Entrance into the building m u s t be effected by any of the means
described in Arts. 299 and 302.
But such entrance into the building is not necessary when the robbery
is committed by breaking wardrobes, chests, or any other kind of locked or
sealed furniture or receptacle inside an inhabited house, a public building
or an edifice devoted to religious worship, or by taking such furniture or
objects away to be broken or forced open outside (subdivision [b] of Art.
299) or w h e n the robbery in an uninhabited building, other than a public
building or edifice devoted to religious worship, is committed by breaking
any wardrobe, chest, or any sealed or closed furniture or receptacle, or by
removing a closed or sealed receptacle even if the same be broken open
elsewhere, (paragraphs 4 and 5 of Art. 302)

Distinctions between effects of employment of violence against or

intimidation of person and those of use of force upon things.
(1) Whenever violence against or intimidation of any person is used, the
taking of personal property belonging to another is always robbery.
If there is no violence or intimidation, but only force upon things, the
taking is robbery only if the force is used either to enter the building
or to break doors, wardrobes, chests, or any other kind of locked or
sealed furniture or receptacle inside the building or to force them open
outside after taking the same from the building. (Arts. 299 and 302)
(2) In robbery with violence against or intimidation of any person,
the value of the personal property taken is immaterial. (U.S. vs.
Granadoso, et al., 16 Phil. 419; People vs. Daos, et al., 60 Phil. 143)
The penalty depends (a) on the result of the violence used, as when
homicide, rape, intentional mutilation or any of the serious physical
injuries resulted, or when less serious or slight physical injuries were
inflicted, which are only evidence of simple violence, and (b) on the
existence of intimidation only.
But in robbery with force upon things, committed in an inhabited
house, public building, or edifice devoted to religious worship, the
penalty is based (a) on the value of the property taken and (b) on
whether or not the offenders carry arms; and in robbery with force
upon things, committed in an uninhabited building, the penalty is
based only on the value of the property taken.

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 Art. 293 ROBBERY IN GENERAL

Classification of robbery when both violence or intimidation and

force upon things are present.
When the offender, in taking personal property belonging to another
with intent to gain, employs violence against or intimidation on any person,
the crime is robbery with violence against or intimidation of persons, even
if the robbery was committed in a dwelling house after the offender had
entered the same through a window, or after breaking its door or wall. The
offender cannot be held liable for robbery with force upon things under Art.
299.
The lower court erred in convicting appellant under article 299 of
the Revised Penal Code, as amended, and in applying to h i m the penalty
therein provided. Aside from the fact that the information to which appellant
pleaded guilty does not allege that the robbery was committed under any
of the circumstances enumerated in said article, such as entering the house
through an opening not intended for entrance or egress, the breaking of
doors, etc., it is now settled that where robbery, though committed in an
inhabited house, is characterized by intimidation, this factor "supplies the
controlling qualification," so that the law to apply is Article 294 and not
Article 299 of the Revised Penal Code. This is on the theory that "robbery
which is characterized by violence or intimidation against the person is
evidently graver than ordinary robbery committed by force upon things,
because where violence or intimidation against the person is present,
there is greater disturbance to the order of society and the security of the
individual." (U.S. vs. Turla, 38 Phil. 346; People vs. Baluyot, 4 0 Phil. 89)
And this view is followed even where, as in the present case, the penalty to
be applied under Article 294 is lighter than that which would result from
the application of Article 299. In accordance with this view, appellant should
have been declared guilty of robbery under paragraph 5 of Article 294 of the
Revised Penal Code, as amended by Republic Act No. 18, since the charge
to which he pleaded guilty alleges robbery through intimidation of persons.
(People vs. Sebastian and Pangilinan, 85 Phil. 603-604)

Republic Act No. 6539, approved August 26, 1972, is the law
applicable when the property taken in robbery is a motor vehicle.
Republic Act No. 6539 defines carnapping and provides penalty
therefor.
"Carnapping" is the taking, with intent to gain, of motor vehicle
belonging to another without the latter's consent, or by m e a n s of violence
against or intimidation of persons, or by using force upon things.
Sec. 14. Penalty for Carnapping. — Any person who is found guilty of
carnapping, as this term is denned in Section two of this Act, shall, irrespective
of the value of motor vehicle taken, be punished by imprisonment for not

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 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294

less than fourteen years and eight months and not more than seventeen
years and four months, w h e n the carnapping is committed without violence
or intimidation of person, or force upon things; and by imprisonment for
not less than seventeen years and four months and not more than thirty
years, w h e n the carnapping is committed by m e a n s of violence against or
intimidation of any person or force upon things; and the penalty of reclusion
perpetua to death shall be imposed w h e n the owner, driver or occupant of
the carnapped vehicle is killed or raped in the course of the commission of
the carnapping or on the occasion thereof. (As amended by R.A. No. 7659)

S e c t i o n One. — Robbery w i t h v i o l e n c e against or intimi-

d a t i o n of p e r s o n s

Art294. Robbery with violence against or intimidation of

persons — Penalties. — Any p e r s o n guilty of robbery w i t h the
u s e of v i o l e n c e against or intimidation of any person shall
suffer:
2
1. The p e n a l t y of reclusion perpetua to death, w h e n by
r e a s o n or on o c c a s i o n of t h e robbery, the crime of homicide
shall h a v e b e e n committed; or w h e n t h e robbery shall have
b e e n a c c o m p a n i e d by rape or intentional mutilation or
arson;
2. The penalty of reclusion temporal in its medium
3
period to reclusion perpetua, w h e n by reason or on occasion
of s u c h robbery, any of t h e physical injuries penalized in
subdivision 1 of Article 263 shall h a v e b e e n inflicted;
3. The penalty of reclusion temporal,* w h e n by reason
or on occasion of t h e robbery, any of the physical injuries
penalized in subdivision 2 of t h e article mentioned in the
next p r e c e d i n g paragraph, shall h a v e b e e n inflicted;
4. The penalty of prision mayor in its maximum period
5
to reclusion temporal in its m e d i u m period, if the violence
or intimidation employed in the commission of the robbery

J
See Appendix "A," Table of Penalties, No. 37.
3
See Appendix "A," Table of Penalties, No. 33.
4
See Appendix "A," Table of Penalties, No. 28.
5
See Appendix "A," Table of Penalties, No. 27.

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 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION

shall have been carried to a degree clearly unnecessary for

the commission of the crime, or w h e n in the course of its
execution, the offender shall have inflicted upon any person
not responsible for its commission any of the physical injuries
covered by subdivisions 3 and 4 of said Article 263;
5. The penalty of prision correccional in its maximum
period to prision mayor in its m e d i u m period in other cases.
(As amended by Republic Act No. 7659)

Acts punished as robbery with violence against or intimidation of

persons:
1. When by reason or on occasion of the robbery (taking of personal
property belonging to another with intent to gain), the crime of
homicide is committed;
2. When the robbery is accompanied by rape or intentional mutilation or
arson;
3. When by reason or on occasion of such robbery, any of the physical
injuries resulting in insanity, imbecility, impotency or blindness is
inflicted;
4. When by reason or on occasion of robbery, any of the physical injuries
resulting in the loss of the use of speech or the power to hear or to
smell, or the loss of an eye, a hand, a foot, an arm, or a leg or the loss
of the use of any such member or incapacity for the work in which the
injured person is theretofore habitually engaged is inflicted;
5. If the violence or intimidation employed in the commission of the
robbery is carried to a degree clearly unnecessary for the commission
of the crime;
6. When in the course of its execution, the offender shall have inflicted
upon any person not responsible for the commission of the robbery any
of the physical injuries in consequence of which the person injured
becomes deformed or loses any other member of his body or loses the
use thereof or becomes ill or incapacitated for the performance of the
work in which he is habitually engaged for more than 90 days or the
person injured becomes ill or incapacitated for labor for more than 30
days;
7. If the violence employed by the offender does not cause any of the
serious physical injuries defined in Art. 263, or if the offender employs
intimidation only.

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 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294

The crime defined in this article is a special complex crime.

Art. 48, denning complex crime, does not apply to the crimes covered
by Art. 294. Art. 294 already provides a specific penalty for each kind of
robbery with violence against persons in the first, second, third and fourth
paragraphs thereof. There is only one penalty prescribed, even if two crimes
are committed. Art. 48 applies only w h e n a complex crime is not punished
with a specific penalty.

"On the occasion" or "by reason" of the robbery.

Note the phrases "on the occasion" and "by reason" of the robbery.
These phrases m e a n that the homicide or serious physical injuries defined
in paragraphs 1 and 2 of Art. 263 m u s t be committed in the course or because
of the robbery.

The crime of homicide committed on the occasion of the robbery.

Where the victim w a s killed on the occasion when the four accused
were taking the chickens under the house of the victim, the offense is robbery
with homicide, not theft and homicide. (People vs. Mabasa, 65 Phil. 568)

Robbery and homicide are separate offenses, when the homicide

was not committed "on the occasion" or "by reason" of the rob-
bery.
In the case of People vs. Atanacio, et al., G.R. No. L-11844, Nov. 29,
1960, the Supreme Court stated:
The motive for the killing on the part of the Atanacios is not wanting.
The Atanacios had been nursing grudge and hard feelings against the
Villasis family. It appears that on three previous occasions, the carabao of
Perfecto had been foraging or destroying the plantation of the Atanacios; and
that after several promises, he failed to pay the damages caused. It seems
also that the Atanacio family had wanted to harass the Villasis family who
were reputed to be witches, and were boasting to be the richest family in
the barrio. Anent the robbery, it has been proved that after killing Perfecto,
the appellants surrounded his body and searched his pockets turning them
inside out, and cut off the watch pocket which contained the P100.
However, two separate offenses were committed, to wit: murder
qualified by evident premeditation, with no modifying circumstance to
consider, and robbery.

665
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION

Where the original design comprehends robbery, and homicide is

perpetrated by reason or on occasion of the consummation of the
former, the crime committed is robbery with homicide.
In several cases, the Court has already ruled that a conviction for
robbery with homicide requires certitude that the robbery w a s the main
purpose and objective of the criminals and that the killing was merely
incidental, resulting merely by reason or on the occasion of the robbery.
(People vs. Salazar, 277 SCRA 67 [1997])
In the cases of People vs. Elizaga, 86 Phil. 364, and People vs. Glore, 87
Phil. 739, where the victims were killed, not for the purpose of committing
robbery, and the idea of taking money and other personal property of the
victims was conceived by the culprits only after the killing, it w a s held that
the culprits committed two separate crimes of homicide or murder (qualified
by abuse of superior strength) and theft.
The rule is that where the original design comprehends robbery in
a dwelling (or elsewhere), and homicide is perpetrated with a view to the
consummation of the robbery, the offense committed is the special complex
crime of robbery with homicide, even though homicide precedes robbery by
an appreciable time. If the original design is not to commit robbery, but
robbery is committed after the homicide as an afterthought and a minor
incident in the homicide, the criminal acts should be viewed as two distinct
offenses. (People vs. Toleng, 91 SCRA 382) Robbery with homicide arises
only when there is a direct relation, an intimate connection, between the
robbery and the killing, even if the killing is prior to, concurrent with, or
subsequent to the robbery. (People vs. Salazar, 277 SCRA 67 [1997])

P A R A G R A P H 1: R O B B E R Y WITH HOMICIDE

This is a special complex crime, punished as a single crime, although

robbery and homicide are committed by the offender.

Meaning of "homicide".
The term "homicide" as used in paragraph No. 1 of Art. 294, is to be
understood in its generic sense as to include parricide and murder.

The juridical concept of robbery with homicide does not limit the
taking of life to one single victim or to ordinary homicide.
The juridical concept of robbery with homicide does not limit the taking
of life to one single victim making the slaying of h u m a n beings in excess of
that number punishable as separate, independent offense or offenses. All
the homicides or murders are merged in the composite, integrated whole

666
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294

that is robbery with homicide so long as all the killings were perpetrated by
reason or on the occasion of the robbery. (People vs. Madrid, 88 Phil. 2)
There is no special complex crime of robbery in band with double
homicide and/or serious, less serious or slight physical injuries under the
present Code. If robbery with homicide (or with the other crimes enumerated
above) is committed by a band, the indictable offense would still be robbery
with homicide under Art. 294(1), but the circumstance that it was committed
by a band is not an element of the crime but is merely a generic aggravating
circumstance which may be offset by mitigating circumstances. The homicides
or murders and physical injuries, irrespective of the numbers, committed on
the occasion or by reason of the robbery are merged in the composite crime of
"robbery with homicide." (People vs. Pedroso, 115 SCRA 599)

The robbery with homicide absorbed the physical injuries. (People vs.
Roberto Mendoza, 76 O.G. 8264, Nov. 3, 1980, citing People vs. Maranan,
121 Phil. 620) Where injuries were committed apart from robbery and
homicide, the crime is only robbery with homicide, physical injuries being
absorbed by the former. (People vs. Veloso, 112 SCRA 173)

There is no such crime as robbery with murder.

Treachery cannot be considered as a qualifying circumstance of murder,
because the crime charged is the special crime of robbery with homicide. The
treachery which attended the commission of the crime must be considered
not qualifying but merely as a generic aggravating circumstance. (People
vs. Mantawar, et al., 80 Phil. 817; People vs. Abang, G.R. No. L-14623, Dec.
29,1960)

Robbery with homicide in a dwelling does not require that robbery

with force upon things is first committed.
Is it necessary that a robbery has actually taken place first, and the
homicide is committed on the occasion or by reason thereof? No, it is not
required.
What makes the crime of robbery with violence against person, is the
injuring or killing of a person on the occasion or by reason of the taking of
personal property belonging to another, with intent to gain.
Thus, when the culprits first asked for permission to enter the house
and asked for food from the victims in the house, and then when already
inside they began to massacre the victims, the entrance is not with force
upon things. But when they had the intention to take personal property
in the house which was the reason for killing the victims, and in fact took
away personal property, they committed robbery with homicide. (U.S. vs.
Villorente, 30 Phil. 59)

667
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION

Robbery with homicide need not be committed inside a building. Thus,

the culprits who killed the victim on the street to get, as in fact they got, the
latter's personal belongings are guilty of robbery with homicide.
In People vs. Pacala, 58 SCRA 370, it is stated: "In order for the crime
of robbery with homicide to exist, it is necessary that it be clearly established
that a robbery has actually taken place, and that, as a consequence or on the
occasion of such robbery, a homicide is committed."
With due respect, the statement is not accurate.

An intent to take personal property belonging to another with

intent to gain must precede the killing.
If the idea of taking the personal property of another with intent to
gain came to the mind of the offender after he had killed the victim, he is
guilty of two separate crimes of homicide or murder, as the case may be,
and theft.
This is the ruling in the cases of People vs. Atanacio, et al., People vs.
Elizaga, and People vs. Glore, supra.

The crime is robbery with homicide, even if the motive of the

offenders was that of robbery as well as vengeance.
But when the intent to commit robbery preceded the taking of human
life, it is immaterial that the offenders had also a desire to avenge grievances
against the person killed. They are liable for the special complex crime of
robbery with homicide. (U.S. vs. Villorente and Bislig, 30 Phil. 59; People vs.
Luna, 58 SCRA 198; People vs. Damaso, 86 SCRA 370)

Homicide may precede robbery or may occur after robbery.

Killing first the victim and t h e n afterwards taking the money from
the body of the deceased is robbery w i t h homicide. (People vs. Hernandez,
46 Phil. 48) But the offender m u s t have the intent to take personal property
before the killing.
Killing the victim after taking him out to sea several hours after the
robbery was committed in another place, is still robbery with homicide.
(U.S. vs. Ibanez, et al., 19 Phil. 463)
Note: The phrase "by reason" covers homicide committed before or
after the taking of personal property of another, as long as the motive of the
offender (in killing a person before the robbery) is to deprive the victim of
his personal property which is sought to be accomplished by eliminating an
obstacle or opposition, or (in killing a person after robbery) to do away with
a witness or to defend the possession of the stolen property.

668
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294

It is immaterial that the death of a person supervened by mere accident

provided that the homicide be produced by reason or on the occasion of the
robbery, inasmuch as it is only the result, without reference or distinction
as to the circumstances, causes, modes or persons intervening in the
commission of the crime that h a s to be taken into consideration. (People vs.
Mangulabnan, et al., 99 Phil. 992) Thus, in the case of People vs. Guiapar,
129 SCRA 539, it w a s held that the death of the guard resulting from the
injury he sustained during the robbery, qualifies the offense to robbery with
homicide. As long as homicide resulted during, or because of, the robbery,
even if the killing is by mere accident, robbery with homicide is committed.

Homicide, to eliminate an obstacle to the commission of robbery.

One of the accused asked the deceased for money, threatening to shoot
him if he would refuse. The deceased replied that he had no money and as
he turned his back and started to go home, he w a s fired upon by two of the
accused. After shooting h i m down, the accused went to the house of the
deceased, threatened h i s wife there, took their trunk, broke it open, and
took therefrom P400.00.
As the killing and the robbery were not committed in the same place,
the accused contended that the crime committed cannot be robbery with
homicide.
Held: The accused had the intention of robbing the deceased when
they asked him for money and they shot h i m down to eliminate an obstacle
to the effectuation of their unlawful design which was shown by the fact
that they repaired to his house which w a s nearby, and by force took his
money therefrom. There is direct connection between the killing and the
robbery. (People vs. Libre, et al., 93 Phil. 5)

Homicide, committed to remove opposition or to suppress evidence.

When all the four homicides were perpetrated with the sole end in
view of removing opposition to the robbery or suppressing evidence thereof,
it is robbery with homicide. (People vs. Madrid, 88 Phil. 1; People vs. Cocoy,
et al., 94 Phil. 91)

Cases decided by the Supreme Court of Spain:

1. A priest was robbed of the money, which he carried with him at
the time, and tied to a tree. One of the robbers, fearing that he was
recognized by the priest, turned back and killed him. It was held that
the crime was robbery with homicide.
2. One of the robbers returned to the place where the robbery had been
committed, for the purpose of closing the gate of a corral from which

669
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION

the cattle had been stolen in order that the remaining cattle might
not get out. He was seen by the man in charge of the cattle, who, up
to that time, had not noticed that any of the cattle had been stolen. He
upbraided the robber, and the latter assaulted and killed him. It was
held that the killing was independent of the robbery because the man
was not killed to do away with a witness. He was killed because he
upbraided the robber. (Cited in U.S. vs. Palmadres, 7 Phil. 120)

Homicide, necessary to defend possession of stolen goods.

When the accused were coming out of the store and were carrying away
the stolen goods, the deceased stopped and attacked them. Two or three of
the offenders returned the attack and killed the deceased. Held: Robbery
with homicide. The homicide was committed to defend the possession of the
stolen property. (People vs. Salamuddin, 52 Phil. 670)

Killing a person to escape after the commission of robbery is

robbery with homicide.
Pacifico Gardon, Catalino Astillero, Amador Altis and Antonio
Rodrigo were accused of robbery in band with homicide and serious physical
injuries.
While the robbery was going on, the bell of the local chapel began to ring
as if giving a general alarm. Alarmed and fearful of their safety, the robbers
attempted to escape by the back door but they found it closed. Then the door
of the store was opened and finding a chance to escape, Altis and Rodrigo
hurriedly came out through that door towards the beach, followed later by
their companions Gardon and Astillero. While Gardon was trying to escape,
he met on the way Engracio Manga and Emilio Fuentes who went to the
store because of the general alarm, and upon seeing Fuentes, he immediately
stabbed him on the abdomen causing his instantaneous death.
The defense contends that the robbery w a s committed independently
of the crime of homicide, for the reason that the plan preconceived by
appellants was merely confined to the commission of robbery and did not
include that of homicide. But this contention evidently is unsustainable for
it cannot be denied that the killing of F u e n t e s took place practically in the
course, if not as a necessary consequence, of the commission of the robbery.
Said acts should therefore be considered as constituting the special crime of
robbery with homicide. (People vs. Gardon, et al., C.A., 56 O.G. 3404)

Is it robbery with homicide if the person killed is a robber himself?

It would seem that it is still robbery with homicide, if, in the course of
the robbery, another robber is killed by his companion who wanted to get a

670
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294

lion's share of the loot. The law does not require that the person killed is the
owner of the property taken. The opening sentence of Art. 294 says: "Any
person guilty of robbery with the use of violence against x x x any person."
Paragraph No. 1 says: 'when by reason or on the occasion of the robbery, the
crime of homicide shall have been committed.' The killing of any person by
reason or on the occasion of robbery should be punished with the highest
penalty regardless of the person killed.

There is robbery with homicide, even if the person killed was an

innocent bystander and not the person robbed. (People vs. Disimban, 88
Phil. 120) The law does not require that the victim of the robbery be also the
victim of the homicide. (People vs. Carunungan, CA-G.R. No. 9986-R, Oct.
17, 1957; People vs. Barut, 89 SCRA 16)

It is robbery with homicide even if the death of a person supervened

by mere accident.

People vs. Mangulabnan, et al.

(99 Phil. 992)

Facts: The defendant removed the iron bar from the door leading to
the balcony and after opening said door, two persons whose identities were
not ascertained, entered. One of the two unidentified marauders searched
the person of Monica del Mundo and took from her P200 in cash and a
gold necklace valued at P200. But not contented with the loot, the same
individual asked Monica del Mundo to give her diamond ring, which the
latter could not produce, and for this reason, he struck her twice on the face
with the butt of his gun. One of the small children of Vicente Pacson who
w a s terrified, called to his mother and that unidentified person irked by the
boy's impudence, made a move to strike him, but Monica del Mundo warded
off the blow with her right arm. At this juncture, the second unidentified
individual put his companion aside and, climbing on the table, fired his
gun at the ceiling. Afterwards, the defendant and his two unidentified
companions left the place.
After they were gone, Cipriana Tadeo called to her husband Vicente
Pacson, and receiving no answer, she climbed the ceiling and found him
lying face downward, already dead.
Held: It may be argued that the killing of Vicente Pacson was an
unpremeditated act that surged on the spur of the moment and possibly
without any idea that Vicente Pacson was hiding therein, and that the
English version of Article 294, No. 1, of the Revised Penal Code, which
defines the special, single and indivisible crime of robbery with homicide,
states that it is committed when by reason or on the occasion of the robbery
the crime of homicide shall have been committed, but this English version is

671
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION

a poor translation of the prevailing Spanish text of said paragraph, which

reads as follows:
"1. Con la pena de reclusion perpetua a muerte, cuando con motivo
o con ocasion del robo resultare homicidio."
We see, therefore, that in order to determine the existence of the crime
of robbery with homicide, it is enough that a homicide resulted by reason or
on the occasion of the robbery. (Decisions of the Supreme Court of Spain of
Nov. 26, 1892, and Jan. 7, 1878)

Where homicide and physical injuries were perpetrated to remove

opposition to robbery or suppressing evidence thereof, the crime
is robbery with homicide only.
The physical injuries inflicted upon Prudencio Tizon, as well as the
killing of Filomena Tizon, should be merged in the composite, integrated
whole, that is, robbery with homicide, it being evident that the killing and
the physical injuries were perpetrated with the sole end in view of removing
opposition to the robbery or suppressing evidence thereof, or both. (People
vs. Genoguin, 56 SCRA 181)

When homicide is not proved, the crime is only robbery.

Thus, if the victim after having been deprived of his personal property
with intimidation while in a banca, w a s dumped overboard and thereafter
was never heard of or seen, the fact of his death is not sufficiently established,
because he might have survived by s w i m m i n g to the bank of the river. In
this case, the accused is liable only for robbery, because there is no sufficient
evidence to prove the homicide.

When robbery is not proved, the crime is only homicide.

When the prosecution fails to show that robbery w a s committed,
because there is no evidence that certain personal property w a s taken by the
accused, the latter should be convicted of double homicides, if two persons
were killed by the culprits. (People vs. Bulan, et al., G.R. No. L-14934, July
25,1960)

Outside of the confessions, no sufficient evidence stands to prove that

anything was stolen from the house of the victims. While there is testimony
that victim had money four or five days before the incident, the hiatus
between the reception of the money and the delict itself was long enough for
the deceased to send the money elsewhere. Without separate proof of corpus
delicti, the extrajudicial confessions will not support conviction for robbery.
(Sec. 3, Rule 133, Rules of Court) Since robbery w a s not proved, conviction

672
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294

for robbery with homicide becomes impossible. (People vs. Manobo, G.R No
L-19798, September 20, 1966)

In robbery with homicide, must the person charged as accessory

have knowledge of the commission, not only of robbery, but also
of homicide?
In People vs. Doble, 114 SCRA 131, it w a s held that where the
accomplices knew merely that a g a n g which took them as banca drivers
would stage a robbery and they were left at the beach by the gangmen, the
fact that the latter killed several people in escaping will not make them
liable as accomplices. Their complicity m u s t accordingly be limited to the
robbery, not with the killing. Having been left in the banca, they could not
have tried to prevent the killings as is required of one seeking relief from
liability for assault committed during the robbery.
Similarly, in People vs. Adriano y Sanguesa, 95 SCRA 107, it was held
that the most that could be found against Pedro Bernardo is that he knew of
the robbery only, but not of the killing. He knew that the money turned over
to h i m for safekeeping w a s the product of robbery. He should, therefore, be
held as accessory only of simple robbery, not of the grave offense of robbery
with homicide.
Note: Article 53 provides that the penalty to be imposed upon the
accessories to the commission of a consummated felony is the penalty lower
by two degrees t h a n that prescribed by law for the consummated felony.
If the consummated felony is robbery with homicide, there is no legal
basis for imposing upon the accessory the penalty lower by two degrees
than that prescribed for robbery only. Robbery cannot be separated from
homicide, because they are merged in the composite, integrated whole —
the special complex crime of robbery with homicide punishable with one
penalty.

All who participated in the robbery as principals are principals in

robbery with homicide.
When homicide is committed by reason or on the occasion of robbery,
all those who took part as principals in the robbery would also be held liable
as principals of the single and indivisible felony of robbery with homicide
although they did not actually take part in the killing, unless it clearly
appears that they endeavored to prevent the same. (People vs. Carrozo,
342 SCRA 600 [2000]; People vs. Verzosa, 294 SCRA 466 [1998], People vs.
Hernandez, G.R. No. 139697, June 15, 2004)

673
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION
Robbery with Rape

Robbery with Homicide Distinguished from Highway Robbery.

The trial court erred in convicting accused-appellant of the crime of
highway robbery with homicide. To be sure, the crime accused-appellant
committed was robbery with homicide, not highway robbery as denned in
P.D. 532. Conviction for highway robbery requires proof that several accused
were organized for the purpose of committing it indiscriminately.
In the case at bar, there is no proof that accused-appellant and
"Johnny" organized themselves to commit highway robbery. The prosecution
established only a single act of robbery against a particular person. This is
not what is contemplated under P.D. 532, the objective of which is to deter
and punish lawless elements who commit acts of depredation upon persons
and properties of innocent and defenseless inhabitants who travel from one
place to another, thereby disturbing the peace and tranquility of the nation
and stunting the economic and social progress of the people.
Consequently, accused-appellant should be held liable for the special
complex crime of robbery with homicide. Under Article 294 of the Revised
Penal Code, when homicide is committed by reason or on the occasion of
robbery, the penalty to be imposed is reclusion perpetua to death. (People
vs. Pascual, Jr., G.R. No. 132870, May 29, 2002)

PARAGRAPH 2: ROBBERY WITH RAPE

As regards the special complex crime of robbery with rape, the law
uses the phrase "when the robbery shall have been accompanied by rape.'
But like in robbery with homicide, the offender m u s t have the intent
to take the personal property belonging to another with intent to gain, and
such intent must precede the rape.

Rape committed on the occasion of the robbery.

This is usually committed when, while some robbers are ransacking
for personal property in the house, the other is raping a woman in the same
house.

Even if the rape was committed in another place, it is still robbery

with rape.
In the case of U.S. rs. Tiongco. et at., 37 Phil. 951, two of the offenders
compelled two women, living in the house where the robbery was committed.
I" go with them and while on the way to the place where they had their
banca hidden, the two men separated themselves from the hand and took the
I wo women to a place near the river where, through force and intimidation.

G7 I
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294
Robbery with Rape

they raped them. Thereafter, the two men left the women and joined their
companions. Held: Robbery with rape was committed. It is not necessary
that the rape be committed prior to or simultaneously with the robbery.
So the law says, in the definition of the crime, that when the robbery is
accompanied by rape or mutilation, etc.
Note: But if the rape is committed against a woman in a house other
than that where the robbery is committed, the rape should be considered a
separate offense.
•
Rape was committed before taking of personal property.
At about one o'clock in the morning of J u n e 28, 1946, the appellant
and Gil Sayuco, together with two unidentified companions, went to the
house of Magdaleno Berti. After tying Magdaleno to the wall, the appellant
entered the room of Benedicta Berti, a 17-year-old daughter of Magdaleno.
The appellant dragged her out and, with the aid of Gil Sayuco, brought her
downstairs under a mango tree. Notwithstanding the girl's cries for help, her
father and mother could not come to her rescue, the first being then tied to
the wall and the second having been pushed away whenever she attempted
to intervene. In spite of Benedicta's resistance, the appellant, with the help
of his three companions, w a s able to have sexual intercourse with Benedicta.
Gil Sayuco then took his turn in raping the girl, followed in succession by
the other two companions. Not contented with merely satisfying their lust,
the appellant, Gil Sayuco, and another companion returned to the house
and took away a rice bowl, some rice and four chickens, all worth about
fifteen pesos. (People vs. Canastre, 82 Phil. 482)

In this case, the intention of the culprits from the beginning was to
take personal property. Even if the rape was committed before the taking of
the rice and chickens, they were guilty of robbery with rape. Rape was not
their primary objective.

There is no such crime as robbery with attempted rape.

Art. 294, par. 2, which punishes robbery with rape (consummated)
does not cover robbery with attempted rape.
The crime cannot be a complex crime of robbery with attempted rape
under Art. 48, because a robbery cannot be a necessary means to commit
attempted rape; nor attempted rape, to commit robbery. Both crimes cannot
be the result of a single act. (See People vs. Cariaga, C.A., 54 O.G. 4307)

675
 ROBBERY WITH VIOLENCE OR INTIMIDATION
Robbery with Rape

When the taking of personal property of a woman is an independent

act following defendant's failure to consummate the rape, there
are two distinct crimes committed: attempted rape and theft.

People vs. Buena

(C.A., 52 O.G. 4698)
Facts: A suddenly grabbed B, a woman, by the shoulder, pushed her to
the side of the soad which was covered by tall talahib grass and B shouted
for help, tenaciously resisting the assault. A embraced her, took hold of her
body, placed his hands around her neck and gave her a fist blow on the right
cheek just below the eye. B fell to the ground face upward. Thereupon, A
sat on her legs and pulled her dress upward. He attempted to loosen her
drawers, which were tightly tied around her waist with a piece of cloth.
Unsuccessful, he attempted to pull the drawers downward.
All along, A kept on kissing and embracing B who continued offering
resistance. B was able to release her legs. She kicked A, as a result of which
the latter loosened his hold on her. B w a s able to stand up. It w a s while B
was in the act of running away that A snatched her vanity case from her
hand.
Held: The crime at bar is not one of robbery with rape, especially and
specifically penalized by Article 294, paragraph 2, of the Revised Penal
Code. Article 48 of the Revised Penal Code does not find application in the
instant case because we are not here confronted with a single act which
constitutes two or more grave or less grave felonies, and the attempted
rape is not a necessary m e a n s of committing the theft or vice versa. The
theft was committed as an independent act following appellant's failure to
consummate the rape.

The lower court is correct in declaring that two crimes were committed
by appellant, namely, attempted rape and theft.

Additional rapes committed on the same occasion of robbery will

not increase the penalty.
There are cases holding that the additional rapes committed on the
same occasion of robbery will not increase the penalty. (People vs. Cristobal,
G.R. No. 119218, April 2 9 , 1 9 9 9 ; People vs. Martinez, 274 SCRA 259; People
vs. Lutao, 250 SCRA 47; People vs. Precioso, 221 SCRA 748) In People vs.
Martinez, supra, accused Martinez and two other unidentified persons,
who remained at large, were charged with the special complex crime of
robbery with rape where all three raped the victim. The Court imposed the
penalty of death after considering two aggravating circumstances, namely,
nocturnidad and use of a deadly weapon. However, the Court did not

676
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294
Robbery with Rape

consider the two rapes as aggravating holding that "(T)he special complex
crime of robbery with rape has, therefore, been committed by the felonious
acts of appellant and his cohorts, with all acts of rape on that occasion being
integrated in one composite crime."
There are likewise cases which held that the multiplicity of rapes
committed could be appreciated as an aggravating circumstance. (People vs.
Candelario, G.R. No. 125550, 28 July 1999; People vs. Pulusan, 290 SCRA
353; People vs. Salvatierra, 257 SCRA 489) In People vs. Candelario, supra,
where three of the four armed m e n who robbed the victim "alternately
raped her twice for each of them," the Court, citing People vs. Obtinalia,
38 SCAD 6 5 1 , ruled that "(T)he characterization of the offense as robbery
with rape, however, is not changed simply because there were several rapes
committed. The multiplicity of rapes should instead be taken into account
in raising the penalty to death."
It should be noted that there is no law providing that the additional
rape/s or homicide/s should be considered as aggravating circumstances.
The enumeration of aggravating circumstances under Article 14 of the
Revised Penal Code is exclusive as opposed to the enumeration in Article
13 of the same Code regarding mitigating circumstances where there is a
specific paragraph (Article 10), providing for analogous circumstances.
It is true that the additional rapes (or killings in the case of multiple
homicide on the occasion of the robbery) would result in an "anomalous
situation" where from the standpoint of the gravity of the offense, robbery
with one rape would be on the s a m e level as robbery with multiple rapes.
However, the remedy lies w i t h the legislature. A penal law is liberally
construed in favor of the offender and no person should be brought within
its terms if he is not clearly made so by the statute. (People vs. Regala, G.R.
No. 130508, April 5, 2000)

When the taking of property after the rape is not with intent to
gain, there is neither theft nor robbery committed.
If rape was the primary objective of the accused, and his taking of the
jewels of the victim w a s not with intent to gain but just to have some tokens
of her supposed consent to the coition, the accused committed two distinct
crimes of rape and unjust vexation. (People vs. Villarino, CA-G.R. No. 6342-
R, Nov. 26, 1951)

Civil liability for robbery with rape.

In a case of robbery with rape, the accused should pay the offended
party the value of the stolen property and indemnify the offended woman
for damages. The civil liability for rape in robbery with rape has been set at

677
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION
Robbery with Serious Physical Injuries

P50.000.00. (People vs. Limbauan, G.R. No. 99868, 235 SCRA 476 [1994];
and People vs. Miranda, G.R. No. 92369, 235 SCRA 202)
If the accused is married, he should be sentenced also to support the
offspring, but not to acknowledge the offspring on account of his married
status. (People vs. Belandres, et al., 85 Phil. 874)

When rape and homicide co-exist in the commission of robbery.

When the accused committed robbery in a house, killed the head of
the family there and raped his wife in the ricefield to which she had been
taken, the crime is robbery with homicide and rape under paragraph 1 of
Art. 294, the rape to be considered as an aggravating circumstance only.
(People vs. Ganal, et al., 85 Phil. 743; People vs. Bacsa, 104 Phil. 136; People
vs. Villa, 93 SCRA 716)
The trial court correctly designated the crime as robbery with
homicide, with rape being considered as an aggravating circumstance. In
the two instances when the assailants struck, their overriding intention
was to commit robbery. After the children had been hogtied in the Semacio's
premises, one of the armed men demanded money and jewelry. Thereafter,
they started to ransack the house. When the husband of Zenaida arrived,
the robbers went out and promptly killed h i m and his luckless companions.
In the house of the Samoy's, all the male occupants were asked to come out
first. Only then did the men begin to ransack the place. After ransacking the
house, the male occupants were shot to death. As for the rapes committed
then, the trial court was correct in treating the raping of Elvira Samoy and
Zenaida Semacio as an aggravating circumstance. (People vs. Timple, 237
SCRA 52)

Robbery with serious physical injuries under Art. 263, par. 2 (Art.
294, par. 3).
In a case, the accused assaulted the victim and robbed h i m of P17.00.
The victim lost the hearing of one ear, as a result of one of the blows he
received from the accused. The Supreme Court held that the accused w a s
guilty of robbery under Art. 294, par. 3, the physical injuries inflicted being
covered by Art. 263, par. 2. (People vs. Luncay, 49 Phil. 464)
Note: This ruling is inconsistent with the ruling in the case of People
vs. Hernandez, 94 Phil. 49, as regards the crime of serious physical injuries
committed. In that case, it was held that as the offended party may still
hear through his left ear, the case falls under Art. 263, par. 3.
Had the ruling been the s a m e as that in the Hernandez case, the
robbery would have been punished under Art. 294, par. 4.

678
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294
Robbery with Intimidation

Robbery with unnecessary violence and intimidation (Art 294 par

4). '
Tying the victim after wounding him and leaving him tied to the
trunk of a tree on the craggy ground after taking his money constitutes
unnecessary violence and intimidation referred to in par. 4 of Art. 294.
(People vs. Manzanilla, et al., 43 Phil. 167)
The violence need not result in serious physical injuries. All that the
first clause in par. 4 of Art. 294 requires is that the violence be unnecessary
for the commission of the robbery.

When the violence or intimidation is necessary, par. 4 of Art. 294

is not applicable.

Although one of the victims was bound and beaten with the butt of
a gun, this would not constitute unnecessary violence under paragraph
4 of Art. 294, because it appears that the beating was for the purpose of
compelling him to show the place where he kept his money, something he
refused to do at first, and which the robbers would not have been able to
ascertain had they not resorted to the violence. (U.S. vs. De los Santos, 6
Phil. 411)

Inflicting serious physical injuries defined in subdivisions 3 and 4 of

Art. 263 "upon any person not responsible for its commission."
Suppose that in the course of the execution of the crime of robbery,
one of the offenders inflicted upon another robber, who wanted to get all
the loot, physical injuries which resulted in the latter's deformity, is the
crime, robbery with serious physical injuries? Note the wording of the law
as regards this question. It says: "upon any person not responsible for its
commission." It would seem that the penalty prescribed in paragraph 4
of Art. 294 should not be applied. The offender who inflicted on another
robber, physical injuries which later resulted in deformity, would be liable
for two crimes, namely: (1) robbery, and (2) serious physical injuries under
Art. 263, paragraph 3.

The serious physical injuries defined in subdivisions 3 and 4 of

Art. 263, inflicted in connection with the robbery, must be inflicted
"in the course of its execution."
Hence, if the victim became deformed or lost any other part of his body
or the use thereof, or became ill or incapacitated for his work for more than
90 days (Art. 263, par. 3), or became ill or incapacitated for labor for more
than 30 days (Art. 263, par. 4), it is necessary to determine whether the
physical injuries were inflicted in the course of the execution of the robbery.

679
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION
Robbery with Intimidation

If they were inflicted after the taking of the personal property had
been complete, the serious physical injuries mentioned should be considered
as separate offense.
In paragraph 4 of Art. 294, the phrase "by reason" is not used.

Requisites of robbery under the second case of paragraph 4 of

Art. 294.
1. That any of the physical injuries defined in paragraphs 3 and 4 of Art.
263 was inflicted in the course of the robbery; and
2. That any of them was inflicted upon any person not responsible for the
commission of the robbery.

Robbery with the use of violence against or intimidation of any

person under paragraph 5 of Art. 294.
The robbery under this paragraph is known as simple robbery, because
the use of violence against any person does not result in homicide, rape,
intentional mutilation, or any of the serious physical injuries defined in Art.
263, which may give rise to special complex crime.
When the injury inflicted upon the offended party on the occasion
of robbery can be qualified only as less serious physical injuries (U.S. vs.
Barroga, 21 Phil. 161) or slight physical injuries (People vs. Mandia, 60
Phil. 372; People vs. Magramo, et al., 62 Phil. 307), the crime is that defined
and penalized in par. 5 of Art. 294.
There is violence, even if the physical force employed by the offender
merely consists in his pushing the victim. (U.S. vs. Samonte, 8 Phil. 286)

Violence or intimidation need not be present before or at the exact

moment when the object is taken.
Violence or intimidation m a y enter at any time before the owner is
finally deprived of his property. This is so, because asportation is a complex
fact, a whole divisible into parts, a series of acts, in the course of which
personal violence or intimidation may be injected.
Thus, where a person picked the pocket of another who, becoming
aware of it, tried to recover his property, but a companion of the thief
prevented him by using force and violence, the crime committed is robbery,
because violence w a s used before the owner is finally deprived of the
property. (People vs. Omambong, C.A., G.R. No. 44645, J u n e 3, 1936)

680
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294
Robbery with Intimidation

Robbery with violence or intimidation "in other cases" referred to

in par. 5 is committed by:
1. Snatching money from the hands of the victim and pushing her to
prevent her from recovering the seized property. (U.S. vs. Samonte 8
Phil. 286)
2. Grabbing p a w n ticket from the hands of another and intimidating
him. (U.S. vs. Blanco, 10 Phil. 298)

When the act of snatching a thing from his hands did not result
in violence against the person of the offended party, the crime of
robbery is not committed.
In a case where the accused snatched from behind the bag which the
offended party w a s t h e n carrying, it w a s held that, there being no violence
against the offended party immediately before, after, or at the time the bag
w a s snatched from her, the accused w a s not liable for robbery, but only for
theft. (People vs. Villar, CA-G.R. No. 14289, July 29, 1955)
Where there is nothing in the evidence to show that some kind of
violence had been exerted to accomplish the snatching, and the offended
party herself admitted that she did not feel anything at the time her watch
was snatched from her left wrist, the crime committed is not robbery but
only simple theft. (People vs. Joson, C.A., 62 O.G. 4604)

Intimidation exists in the following cases:

1. W h e n the complainant w a s on her way home after selling a ring in
a market, Sope pointed a revolver at her while Cruz poked her back
with a hard object. Then, Cruz and Dimalanta pretended to be peace
officers, apprehending her for unlawfully dealing in U.S. Army goods
and pointing to her a bag with such goods which they themselves had
brought along, with the result that the complainant gave them P200.
(U.S. vs. Sope, et al., 75 Phil. 812)
2. The accused, in a guerrilla uniform, told the complainant to hand him
all his money and personal belongings, and when the complainant
replied he had no money, the accused told him to stand up and
searched his watch pocket, from which he took P40 in paper currency.
The complainant allowed the accused to search him because the
accused was armed. The accused kept on pushing him back and forth
and looked as if he was going to strike him. It was held that the acts
performed by the accused in their nature inspired the victim with fear
and restricted and hindered the free exercise of his will. (People vs.
Lim Ho Peng, G.R. No. L-229, Aug. 29, 1946)

681
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION
Robbery with Intimidation

3. Even if the quarrel had arisen from some personal disagreement, the
act of the defendants in threatening to kill the offended party with
a deadly weapon and taking away his personal property which they
later misappropriated, constitutes robbery. (People vs. Buenacosa,
CA-G.R. No. 3632, Jan. 25, 1939)
Intimidation exists when the acts executed or words uttered by the
offender are capable of producing fear in the person threatened. (People vs.
Gococo, CA-G.R. No. 512-R, Nov. 29, 1950)

In robbery with intimidation, there must be acts done by the

accused which, either by their own nature or by reason of the
circumstances under which they are executed, inspire fear in the
person against whom they are directed.
Indeed, the trial court admitted that such threatening acts or words
have not been proven when it stated in the decision appealed from that "In
situations like this, it is not necessary that actual acts or words of threat
and intimidation be employed." And the complainant himself w a s positive
that the fear — that the accused Judge might change the decision should
he not give the sum allegedly demanded — only occurred to his mind or
came from himself alone. In other words, as the complainant has admitted,
only his thoughts put fear in him. His fear was not inspired by any threats,
either by acts, spoken words, or gestures, employed by the accused.
"The fright of him who is robbed m u s t be under the law an objective
fright, as contradistinguished from subjective fright; it must have been due,
in short, to some act on the part of the accused, and not arise from the mere
temperamental timidity of the person whose property happens to be stolen
from his person or presence." (State vs. Weinhardt, 253 Mo. 629, 161 S.W.
1151, cited in State vs. Parker, L.R.A., 1915C 123) "Statutes denning crime
of extortion and providing punishment therefor m u s t be read together, and
'fear,' within statute denning term as obtaining of property from another
with his consent induced by 'fear,' m u s t be induced by threats, and hence,
threat is necessary ingredient of crime." (People vs. Imbao, et al., C.A., 60
O.G. 8487, citing State vs. Anderson, 267 N.W. 1 2 1 , 1 2 4 , 66 N.D. 522; Words
and Phrases Perm. Ed., Vol. 16, p. 476)

In robbery with intimidation of persons, "the intimidation consists in

causing or creating a fear in the mind of a person or in bringing in a sense
of mental distress in view of a risk or evil that may be impending really or
in imagination" and such fear of injury to person or property m u s t continue
to operate on the mind of the victim at the time of the delivery of the money.
Where the complainant knew of the plan laid down for the entrapment of
the accused, at the same time participating in the execution thereof, and
he delivered the money to the accused, not from fear, but for the purpose

682
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art. 294
Robbery with Intimidation

of bringing the accused to justice, the accused is not liable for robbery with
intimidation of persons. (People vs. Marco, 12 C A . Rep. 377)

Threats to extort money distinguished from robbery thru intimi-

dation.
In both crimes, there is intimidation by the offender. The purpose,
w h e n threat is made to extort money, is identical — to obtain gain.
The differences are:
(1) In robbery, the intimidation is actual and immediate; whereas
in threats, the intimidation is conditional or future, that is, not
immediate;
(2) In robbery, the intimidation is personal, while in threats, it may
be through an intermediary;
(3) In threats, the intimidation may refer to the person, honor or
property of the offended party or that of his family; while in
robbery, the intimidation is directed only to the person of the
victim;
(4) In robbery, the gain of the culprit is immediate; whereas in
threats, the gain of the culprit is not immediate. (People vs.
Moreno, C.A., G.R. No. 43635, April 30, 1936)

Robbery with violence distinguished from grave coercion.

(1) In both crimes, there is violence used by the offender;
(2) While in robbery, there is intent to gain, such element is not present
in coercion.
The only distinction between these two crimes is just a matter of
intention. If the purpose of the accused in taking somebody's property by
force or intimidation is to obtain gain, the crime is robbery; but if his purpose
is to compel another to do something against his will, without authority of
law, but believing himself to be the owner or creditor, and thereby seizes
property, then the crime is grave coercion. (People vs. Zanoria, et al., C.A.,
53 O.G. 5266, citing U.S. vs. Vega, 2 Phil. 167; People vs. Mojica, et al., C.A.,
O.G. 1818; U.S. vs. Villa-Abrille, 36 Phil. 807; and People vs. Luciano, CA-
G.R. No. 2374-R, October 28, 1949)

Problem:
A lost his watch. One day, A saw B using the watch. A, recognizing
the watch, asked B to give it to him because it was his property. Because
B refused, A, with drawn pistol, told him that if B would not give him the

683
 Art. 294 ROBBERY WITH VIOLENCE OR INTIMIDATION
Robbery with Intimidation

watch, A would kill him. Because of fear for his life, B gave the watch to A
against B's will.
Is the crime committed by A robbery, grave threats or grave
coercion?
It is grave coercion, because B was compelled to do something against
his will, whether it be right or wrong.
It cannot be threats, because in the crime of threats, the intimidation
is not actual and immediate. It is true that there was a sort of a condition
made, that is, B would be killed if he would not give A the watch. But
in threats, the intimidation must promise some future harm or injury.
When the effect of the intimidation is immediate and the offended party is
compelled thereby to do something against his will, whether it be right or
wrong, the crime committed is grave coercion.
It cannot be robbery, because there is no intent to gain, as A believed
that the watch he w a s taking was his own property.

Robbery and bribery distinguished.

(1) It is robbery when the victim did not commit a crime and he is
intimidated with arrest and/or prosecution to deprive him of his
personal property; it is bribery w h e n the victim has committed a crime
and gives money or gift to avoid arrest or prosecution. The reason
is, w h e n the victim did not commit any crime, there is nothing that
would have required the public officer to exercise his duty or function.
On the other hand, if the victim committed a crime and the public
officer accepted bribe, the latter thereby agreed to refrain from doing
something which it w a s his official duty to do.

Thus, where an agent of authority took away from its owner,

against his will, one fish valued at P10, m a k i n g the threat that if he
would not give him the fish he would be taken to the headquarters
to explain why he w a s selling fish caught by m e a n s of dynamite, and
because of the threat, he gave the fish to the agent, although the fish
was not caught by m e a n s of dynamite, the crime committed is robbery
under paragraph 5 of Art. 294.
If the owner of the fish in that case in fact used dynamite in
catching the fish and he gave the fish to the agent to avoid prosecution
under the Fisheries Act, the crime would be bribery. (People vs.
Munar, C.A., 47 O.G. 2461)
(2) In robbery, the victim is deprived of his money or property by force
or intimidation; in bribery, he parts with h i s money or property in a
sense voluntarily. (U.S. vs. Flores, 19 Phil. 178)

684
 ROBBERY WITH VIOLENCE OR INTIMIDATION Art 295
WHEN QUALIFIED

When it is not certain that the victim committed a crime.

The accused w a s a sanitary inspector who inspected the merchandise
in the store of the offended party. The accused found a blackish substance
in the lard. The accused demanded P2.00 from the offended party,
accompanying the demand with threats of arrest and prosecution. Held:
The principal distinction between the two offenses is that in bribery, the
transaction is mutual and voluntary; in the case of robbery, the transaction
is neither voluntary nor mutual, but is consummated by the use of force
or intimidation. If the offended party in the present case had voluntarily
offered to pay the defendant P2.00, the transaction would have constituted
bribery. But such is not in this case. The defendant demanded the payment
of P2.00, accompanying the demand with threats of arrest and prosecution,
and is therefore guilty of robbery. (People vs. Francisco, 45 Phil. 819)

A r t . 2 9 5 . Robbery with physical injuries, committed in an

uninhabited place and by a band, or with the use of firearm
on a street, road or alley. — I f t h e o f f e n s e s m e n t i o n e d i n
subdivisions three, four, a n d five of the next preceding article
shall have b e e n committed in an uninhabited place or by a
b a n d or by a t t a c k i n g a m o v i n g train, street car, motor vehicle
or airship, or by entering the passengers' compartments in
a train or, in a n y m a n n e r , t a k i n g t h e p a s s e n g e r s thereof by
surprise in the respective conveyances, or on a street, road,
h i g h w a y , or alley, a n d t h e intimidation is m a d e w i t h the use
of a firearm, the offender shall be punished by the maximum
p e r i o d o f t h e p r o p e r p e n a l t i e s . (As amended by Republic Act
No. 12, Sec. 2, and Republic Act No. 373)

When is robbery with violence against or intimidation of persons

qualified?
If any of the offenses denned in subdivisions 3, 4 and 5 of Art. 294 is
committed
1 in an uninhabited place, or
(2) by a band,or
(3) by attacking a moving train, street car, motor vehicle, or airship, or
(4) by entering the passengers' compartments in a train, or in any manner
taking the passengers thereof by surprise in the respective conveyances,
or

685
 ROBBERY WITH VIOLENCE OR INTIMIDATION
WHEN QUALIFIED

(5) on a street, road, highway, or alley, and the intimidation is made with
the use of firearms, the offender shall be punished by the maximum
periods of the proper penalties prescribed in Art. 294.

Must be alleged in the information.

Any of these five qualifying circumstances of robbery with physical
injuries or intimidation must be alleged in the information and proved
during the trial.

Being qualifying, it cannot be offset by a generic mitigating circum-

stance.
Any of these qualifying circumstances cannot be offset by a generic
mitigating circumstance.
If robbery by a band is committed in an uninhabited place, "by a
band" is qualifying and "uninhabited place" would be generic aggravating
circumstance only. (See U.S. vs. Gapas, 18 Phil. 629)

The intimidation with the use of firearm qualifies only robbery on

a street, road, highway or alley.
This is indicated in the head note of the article which says: "or with
the use of firearm on a street, road, highway, or alley."

Art. 295 does not apply to robbery with homicide, or robbery with
rape, or robbery with serious physical injuries under par. 1 of Art.
263.

Art. 295 provides for different cases in which robbery w i t h violence

against or intimidation of persons is qualified.
This article does not apply:
(1) When by reason or on occasion of the robbery, the crime of
homicide is committed (subdivision 1, Art. 294);
(2) When the robbery is accompanied by rape or intentional
mutilation, or arson (subdivision 1, Art. 294); or
(3) If by reason or on occasion of robbery, any of the serious physical
injuries resulting in insanity, imbecility, impotency or blindness
is inflicted (subdivision 2, Art. 294).
The reason is that this article mentions subdivisions 3, 4 and 5 of Art.
294, omitting subdivisions 1 and 2 which refer to robbery with homicide,
robbery with rape, robbery with intentional mutilation, and robbery with

686
 ROBBERY BY A BAND Art. 296

serious physical injuries resulting in insanity, imbecility, impotency or

blindness of the victim.
Thus, w h e n robbery with homicide w a s committed by attacking a
motor vehicle or moving train, or on the street, road, highway or alley with
the use of firearms, the penalty prescribed by subdivision 1 of Art. 294 shall
not be imposed in the m a x i m u m period. The same is true with respect to
robbery with rape or robbery with intentional mutilation.
However, if there is no mitigating circumstance to offset it, the
fact that robbery with homicide or robbery with rape is committed in an
uninhabited place or by a band will have the effect of increasing the penalty
to the m a x i m u m period, because it will be considered as an aggravating
circumstance under Art. 14.
Art. 295 is inapplicable to robbery with homicide, rape, intentional
mutilation, and lesiones graves resulting in insanity, imbecility, impotency
or blindness. If the foregoing classes of robbery which are described in Art.
294 (1) and (2) are perpetrated by a band, they would not be punishable under
Art. 295, but then, cuadrilla would be generic aggravating circumstance
under Art. 14 of the Code. (People vs. Salip Mania, 30 SCRA 389; People vs.
Damaso, 86 SCRA 370)

A r t . 2 9 6 . Definition of a band and penalty incurred by the

members thereof. — W h e n m o r e t h a n t h r e e a r m e d m a l e f a c t o r s
take part in the c o m m i s s i o n of a robbery, it shall be d e e m e d
to have been committed by a band. When any of the arms used
in the c o m m i s s i o n of the offense be an unlicensed firearm,
t h e p e n a l t y to be i m p o s e d u p o n all the malefactors shall be
the maximum period of the corresponding penalty provided
by law, w i t h o u t prejudice to t h e criminal liability for illegal
possession of s u c h unlicensed firearm.
Any member of a band w h o is present at the commission
of a robbery by the band, shall be punished as principal
of any of the assaults committed by the band, unless it be
s h o w n t h a t h e a t t e m p t e d t o p r e v e n t t h e s a m e . (As amended
by Republic Act No. 12)

Outline of the provisions.

1. When at least four armed malefactors take part in the commission of
a robbery, it is deemed committed by a band.

687
 Art. 296 ROBBERY BY A BAND

2. When any of the arms used in the commission of robbery is not

licensed, the penalty upon all the malefactors shall be the maximum
of the corresponding penalty provided by law, without prejudice to the
criminal liability for illegal possession of such firearms.
3. Any member of a band who was present at the commission of a robbery
by the band, shall be punished as principal of any of t h e assaults
committed by the band, unless it be shown that he attempted to
prevent the same.

Requisites for liability for the acts of the other members of the
band.
A member of the band is liable for any of the assaults committed by
the other members thereof, w h e n the following requisites concur:
1. That he was a member of the band.
2. That he w a s present at the commission of a robbery by that
band.
3. That the other members of the band committed an assault.
4. That he did not attempt to prevent the assault.
There must be proof that he made an endeavor to prevent the assault
committed by another member of the band, in order that he m a y not be held
liable for such assault. (People vs. Mendoza, et al., 84 Phil. 148)
Inasmuch as the crime committed is robbery in band and the accused,
who denies all intervention therein, admits having been present at the
commission of the crime without having done anything to prevent the
murder of three people, his liability is the same as that of the principals
in the crime of robbery with homicide. (People vs. Gallemos, et al., 61 Phil.
884)

When is the robbery deemed committed by a band?

Art. 2 9 6 provides that when more than three armed malefactors
take part in the commission of robbery, it shall be deemed to have been
committed by a band. At least four armed persons m u s t take part in t h e
commission of robbery.

Clubs are arms.

The clubs are arms which, in the hands of the members of a band, m a y
be as dangerous to the life of one who would resist the depredations of the
band as are revolvers or bolos. (U.S. vs. De la Cruz, et al., 12 Phil. 87)

688
 ROBBERY BY A BAND Art. 296

When the robbery was not committed by a band, the robber who did
not take part in the assault by another is not liable for that assault.
Thus, in the case where three persons committed robbery in a house
two of the robbers committed rape upstairs, while the third guarded the
owner of the house downstairs, the first two were convicted of robbery with
rape, while the third w a s convicted of robbery only. (People vs. Pascual
G.R. No. L-4801, J u n e 30, 1953, 93 Phil. 1114)
Note: The case of People vs. Basisten, 47 Phil. 493, in which it was held
that only the one who killed the victim w a s guilty of robbery with homicide
and the others were guilty of robbery by a band, not robbery with homicide,
w a s decided before Article 296 w a s amended. Before its amendment, it was
required that the robbery be committed by a band and in an uninhabited
place. (People vs. Gallemos, 61 Phil. 884)

When the robbery was not by a band and homicide was not
determined by the accused when they plotted the crime, the one
who did not participate in the killing is liable for robbery only.
When Balmeo and Caymo hurried out of the victim's house after the
robbery, Pelagio had fled from his lookout post. It w a s only Balmeo and
Caymo who walked together to the place where Manalang was waiting
inside a taxi and it was only w h e n the taxi w a s about to leave when the
shooting of Pat. Trinidad happened.
Held: When the homicide w a s committed, Pelagio could not have had
the least participation as might justify penalizing him likewise for the said
killing. The conspirators were agreed only on the commission of robbery;
there is no evidence that homicide besides w a s determined by them when
they plotted the crime. All these warrant the exclusion of Pelagio from any
responsibility for the said killing.
Considering that those who actually participated in the robbery were
only three, Pelagio included, and only one of them was armed, the same
evidently w a s not "in band." It is indeed questionable to hold Pelagio similarly
responsible as Caymo and Balmeo for the killing of Pat. Trinidad. It is only
when the robbery is in band that all those present in the commission of the
robbery may be punished for any of the assaults which any of its members
might commit. (People vs. Pelagio, et al, 20 SCRA 153)

But when there is conspiracy to commit homicide and robbery, all

the conspirators, even if less than four armed men, are liable for
the special complex crime of robbery with homicide.
The conspiracy among the appellants in the commission of the crime,
is evident upon the facts as proven. Their acts, collectively and individually

689
 Art. 2 9 6 R O B B E R Y BY A B A N D

executed, have demonstrated the existence of a common design towards the

accomplishment of the same unlawful purpose and objective. The killing of
Alfonso Yu and Victor Yu, bears a direct relation and intimate connection
between the robbery and the killing, for the killing happened during and
on the occasion of the robbery. Whether the latter be prior or subsequent
to the former, for the element of conspiracy having been proven, it is
unquestionable that the complex crime of robbeiy with homicide has been
committed, and all the appellants are liable therefor. (People vs. Fontillas,
et al, G.R. No. L-25298, April 16, 1968)
When a group of malefactors conspire to commit robbery and
arm themselves for the purpose, no member of the group may disclaim
responsibility for any act of violence that is perpetrated by reason or on the
occasion of the robbery. Such violence is always reasonably to be expected,
either to overcome active opposition or to forestall it altogether by disabling
the victim at the very outset, or even to silence him completely thereafter.
In the instant case, the group that set out for Batac to rob Ko Pian was
provided with lethal weapons — a dagger, an ice pick and a gun. These
instruments were intended to facilitate the commission of the robbery, and
if their use resulted in homicide, the liability therefor attached to the entire
group. (People vs. Espejo, supra) Similarly, where a group of persons armed
themselves to hold up jeepney passengers, no member of the group can
disclaim responsibility for any violent act taken by anyone of them. (People
vs. Vallente, 144 SCRA 495)
All of those who conspired to commit the crime of robbery, knowing
that members of the group were armed for the purpose of attaining their
unlawful objective, should be responsible for the consequences of the
criminal act, in this case, the death of the victim. As conspirators, they
cannot afterwards claim that they planned to rob only and not to kill and
that if someone in the group killed in the course of the robbery, he alone
should be responsible. Any person with ordinary foresight can foresee that
committing robbery with the use of force upon person always entails the
danger of injuring or killing the victim, especially if the conspirators plan
to commit, and did commit, their dastardly act while armed and in a group.
(People vs. Sumayo y Bersebal, 70 SCRA 488)

"Any m e m b e r of a b a n d w h o is p r e s e n t at the c o m m i s s i o n of a
robbery by the b a n d . "

A principal by inducement, who did not go with the band at the place
of the commission of the robbery, is not liable for robbery with homicide, but
only for robbery in band, there being no evidence that he gave instructions
to kill the victim or intended that this should be done.
The Supreme Court held: "When Ciriaco Ibanez furnished the trans-
portation for the other defendants, he did so for the purpose of having the

690
 ROBBERY BY A BAND Art. 296

said defendants rob the two stores. The robbery was his principal object
It is true that homicide resulted on the occasion of this robbery but there
is nothing in the record which shows, or tends to show, that Ciriaco gave
instructions to kill the Chinaman or intended that this should be done. When
the Chinaman was killed, the robbery had already been committed. The
murder was an incident to the robbery, which places the crime, so far as the
other accused are concerned, in a different class. Yet under these facts and
circumstances, Ciriaco can not be held to be a principal in the commission of
this crime or class of robbery, but he is a principal in the commission of the
other class, robbery in band. There is nothing in the record to show that he
planned or conspired to commit the murder. It has been suggested that as
he, Ciriaco, entered into an agreement with the other defendants to commit
this crime of robbery, he is responsible for all the result of that crime, as he
knew that death might be a necessary incident to the carrying into effect
of this plan. If the death of the Chinaman had occurred in the "ery act or
at the very time that the robbery took place, or while it was going on, and if
it had been necessary to kill the Chinaman in order to successfully rob the
stores, then the question might have been different (a question which we
do not now decide), but as the actual taking of the property had already
terminated, we think, in the absence of proof showing that the murder was a
part of the original plan, that the foregoing holding is the correct one." (U.S.
vs. Ibanez, 19 Phil. 475)

Note: Art. 296 is not applicable to principal by induction, who was

not present at the commission of the robbery, if the agreement was only to
commit robbery. The article speaks of more than three armed malefactors
(who) "take part in the commission of robbery" and member of a band "who
is present at the commission of a robbery by a band."
But the principal by induction would be liable for the homicide or other
crimes that might have resulted, if he also ordered the killing of a particular
person or any one who would resist the robbery, or the commission of other
crimes.

Conspiracy was for robbery only but homicide was also committed
on the occasion thereof — all members of the band are liable for
robbery with homicide.
The culprits formed a band. They agreed to commit robbery only.
While ransacking for the loot in a store, a patrolman arrived, and there was
an exchange of shots. The patrolman was killed.
Held: As all the accused were present when the homicide occurred, and
none of them attempted to prevent the homicide, all are liable for robbery
with homicide. (People vs. Evangelista, et al., 86 Phil. 112)

691
 Art. 296 ROBBERY BY A BAND

Whenever homicide is committed as a consequence of or on the occasion

of a robbery, all those who took part in the commission of the robbery are
also guilty as principals in the crime of homicide unless it appears that they
endeavored to prevent the homicide. (People vs. Escober, 157 SCRA 541;
People vs. Pecato, 151 SCRA 14)

Proof of conspiracy is not necessary when four or more armed

persons committed robbery.
Proof of conspiracy is not essential to hold a member of the band liable
for robbery with homicide actually committed by the other members of the
band. (People vs. De la Rosa, et al., 90 Phil. 365)

There is no crime as "robbery with homicide in band."

With the present wording of Art. 295, there is no crime as "robbery
with homicide in band." If the robbery with homicide is committed by a
band, the indictable offense would still be denominated as "robbery with
homicide" under Art. 294(1), but the circumstance that it w a s committed
by a band would be appreciated as an ordinary aggravating circumstance.
(People vs. Apduhan, Jr., 24 SCRA 798)
The denomination of the offense in the case of People vs. Garduque, et
al., infra, should be "robbery with rape" under Art. 294(2). There is no crime
as "robbery in band with multiple rape."

Robbery by a band — all are liable for any assault committed by

the band, unless the others attempted to prevent the assault.

People vs. Garduque, et al.

(104 Phil. 1049)

Facts: While the inhabitants of the house were asleep, six m e n

armed with revolver, bolos and B a t a n g a s knives, entered the house. The
malefactors forced open the trunks in the house and took jewels, money and
clothes kept therein. They also looted the store. Afterwards, they took turns
in ravishing the three maidservants. In their defense, two of the defendants
merely denied having raped the maidservants.
Held: Even a s s u m i n g for a moment that they did not participate in
raping the maids, they are nonetheless guilty as principals in the complex
crime of robbery in band with multiple rape as provided for in par. 2 of Art.
296 of the Revised Penal Code, because there is no showing that they ever
attempted to prevent the commission of the crime (multiple rape) which has
been clearly established by the evidence on record.

692
 ROBBERY BY A BAND Art. 296

When rape is not considered "any of the assaults committed by

the band."

But where in the course of the robbery by a band, the offended woman
was taken by one of the accused to a place away from the house, where the
robbery was committed, and there he raped her without the knowledge of his
companions, he alone is guilty of robbery with rape. His companions would be
guilty only of simple robbery by a band. (People vs. Hamiana, 89 Phil. 225)
Note: The members of the band liable for the assault must be present
at the commission of the robbery, not necessarily at the commission of the
assault.

"Without prejudice to the criminal liability for illegal possession of

such unlicensed firearm."
In addition to h i s criminal liability for robbery by a band, the accused
is also liable for illegal possession of firearm which is penalized by P.D. No.
1866.

Rep. Act No. 8294 considers use of an unlicensed firearm in murder

or homicide merely a special aggravating circumstance, and not a
separate crime.
Violation of PD 1866 is an offense distinct from murder or homicide
and the accused is culpable for two separate offenses. RA 8294 amended PD
1866 by reducing penalties and considering the use of an unlicensed firearm
simply as an aggravating circumstance in murder or homicide. (People vs.
Quijada, 259 SCRA 191)
The third paragraph of Section 1, RA 8294, provides: "If homicide or
murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance."
With the passage of RA 8294 on 6 June 1997, the use of an unlicensed
firearm in murder or homicide is now considered, not as a separate crime,
but merely a special aggravating circumstance. (People vs. Castillo, G.R.
Nos. 131592-93, 15 February 2000)

The special aggravating circumstance of use of unlicensed firearm

is not applicable to robbery with homicide committed by a band.
Art. 296 in its entirety is designed to amplify and modify the provision
on robbery in band which is nowhere to be found but in Art. 295 in relation to
subdivisions 3, 4, and 5 of Art. 294. Verily, in order that the aforesaid special
aggravating circumstance of use of unlicensed firearm may be appreciated
to justify the imposition of the maximum period of the proper penalty, it is

693
 Art 297 ATTEMPTED OR FRUSTRATED ROBBERY
WITH HOMICIDE

a condition sine qua non that the offense charged be robbery committed by
a band within the contemplation of Art. 295. To reiterate, since Art. 295 does
not apply to subdivisions 1 and 2 of Art. 294, then the special aggravating
factor in question, which is solely applicable to robbery in band under Art.
295, cannot be considered in fixing the penalty imposable for robbery with
homicide under Art. 294(1), even if the said crime was committed by a band
with the use of unlicensed firearms. (People vs. Apduhan, Jr., 24 SCRA 798)
In view of the ruling in the case of People us. Apduhan, supra, the use
of unlicensed firearm is not a special aggravating circumstance in robbery
with rape or intentional mutilation, and in robbery with physical injuries
defined in subdivision 1 of Article 263.

The use of firearm, whether licensed or unlicensed, in making the

intimidation is a qualifying circumstance when the robbery defined
in any of paragraphs 3 , 4 and 5 of Art. 294 is committed on a street,
road, highway, or alley.
Art. 295 makes no distinction as regards the firearm used in making
the intimidation to commit robbery. Hence, the firearm may be licensed or
unlicensed. But the offense committed should not be robbery with homicide,
robbery with rape, robbery with intentional mutilation, or robbery with
serious physical injuries where the injured person became insane, imbecile,
impotent, or blind. The robbery m u s t be that defined and penalized in any of
paragraphs 3, 4 and 5 of Art. 294, and committed on a street, road, highway
or alley. (Art. 295)

In robbery defined in any of the paragraphs 3, 4 and 5 of Art. 294,

perpetrated by a band using unlicensed firearms, the penalty is the
maximum of the m a x i m u m period of the proper penalty. It is not an ordinary
aggravating circumstance. (People vs. Valeriano, 90 Phil. 15)

Art. 297. Attempted and frustrated robbery committed

under certain circumstances. — When by r e a s o n or on
occasion of an attempted or frustrated robbery a h o m i c i d e
is committed, t h e p e r s o n guilty of s u c h offenses shall be
punished by reclusion temporal in its m a x i m u m period to
6
reclusion perpetua, u n l e s s t h e h o m i c i d e c o m m i t t e d shall
deserve a higher penalty u n d e r t h e provisions of this Code.

6
See Appendix "A," Table of Penalties, No. 34.

694
 ATTEMPTED OR FRUSTRATED ROBBERY Art. 297
WITH HOMICIDE

The term "homicide" is used in a generic sense.

The term "homicide" in Art. 297 is used in a generic sense. (People
vs. Manuel, 44 Phil. 333) Hence, it includes multiple homicides, murder,
parricide, or even infanticide, as where the offenders killed a child two days
old which w a s disturbed in its sleep and began to cry when they were about
to take personal property in the house.

The penalty is the same, whether the robbery is attempted or

frustrated.
As long as homicide is committed by reason or on occasion of an
attempted or frustrated robbery, the penalty of reclusion temporal in its
m a x i m u m period to reclusion perpetua shall be imposed.

"Unless the homicide committed shall deserve a higher penalty."

The clause "unless the homicide committed shall deserve a higher
penalty under the provisions of this Code" may be illustrated thus: In an
attempted or frustrated robbery, the killing of the victim is qualified by
treachery or relationship. The proper penalty for murder or parricide shall
be imposed because it is more severe.

Attempted robbery with homicide.

People vs. Carunungan, et al.

(G.R. No. 13283, Sept. 30, 1960)

Facts: Lorenzo Vivas, his son Hermogenes and daughter-in-law were

awakened by the presence, below their house, of appellants who asked
for some water to drink. Serapio Carunungan, Manuel Buceta and Felipe
Mendoza went up and forced their way to the house. Carunungan made
a demand to the inmates of the house to bring out their money. Lorenzo
got hold of his own firearm and confronted the trio. All of a sudden, the
intruders started firing at Lorenzo who returned the fire. After the gunfire
stopped, Lorenzo Vivas and Felipe Mendoza were found dead.
Held: The Court agrees with the Court of Appeals that the crime
committed is attempted robbery with homicide. The demand made by
Carunungan to the inmates of the house to bring out their money constitutes
an overt act which would lead to the commission of the robbery. If the
robbery was not committed, it was because of armed resistance. The killing
was apparently an offshoot of the plan to carry out the robbery.

695
 Art. 297 ATTEMPTED OR FRUSTRATED ROBBERY
WITH HOMICIDE

When there is no overt act of robbery.

But where an armed band tried to stop a passenger bus, and the
driver, sensing that the band might commit robbery, did not stop the bus
but drove it faster, and the members of the band then fired at it, killing
one passenger and wounding another passenger and the driver, the crime
does not constitute attempted robbery with homicide, because no overt
acts pointing to robbery were established. The offenses committed are the
separate crimes of murder, frustrated murder and physical injuries. (People
vs. Olaes, 105 Phil. 502)

Frustrated robbery with homicide.

The accused agreed to rob two LCM boats from the Navy boat pool
with the idea of selling them for profit. They disarmed the guard and when
they failed to take the boats, because they could not start the motor, they
killed the guard. (People vs. Ramires, G.R. No. L-5875, May 15, 1953, 93
Phil. 1109)

Art. 2 9 6 is applicable to attempted robbery with homicide by a

band.
Art. 296 is applicable w h e n the crime of attempted robbery with
homicide is committed by a band.
A, B, C and D agreed to commit robbery. By their agreement, A and B
went to the hut to watch the inmates, while C and D were to take away the
carabaos. While C and D were untying the carabaos, they heard the scream:
"Oh! save my life!" which w a s interrupted by a pistol shot by A. Fearing
that the shot might summon help, the accused escaped without taking the
carabaos, although one of t h e m had already been untied.
Held: All are liable for the crime of attempted robbery w i t h homicide,
even if C and D did not enter the hut and did not take part in the assault.
(People vs. Morados, 70 Phil. 558; People vs. Dagundong, et al, 108 Phil.
682)

Special complex crime.

Robbery with homicide and attempted or frustrated robbery with
homicide are special complex crimes, not governed by Art. 48, but by the
special provisions of Arts. 294 and 297, respectively.

When Art. 48 is applicable in robbery.

When the offense committed is attempted or frustrated robbery with
serious physical injuries, Art. 48 is applicable, since the felony would fall

696
 ATTEMPTED OR FRUSTRATED ROBBERY Art. 297
WITH HOMICIDE

neither under Art. 294 which covers consummated robbery with homicide
nor under Art. 297 which covers attempted or frustrated robbery with
homicide. (People vs. Villanueva, CA-G.R. No. 2676, May 31, 1939)
When the crime committed is robbery with frustrated homicide, the
penalty for the more serious crime, which is frustrated homicide, should
be imposed in its m a x i m u m period, as provided in Art. 48. (People vs
Cagongon, C.A., 74 O.G. 59, No. 1, Jan. 2, 1978)

There is only one crime of attempted robbery with homicide even

if slight physical injuries were inflicted on other persons on the
occasion or by reason of the robbery.

People vs. Casalme, et al.

(101 Phil. 1249)

Facts: On March 2 2 , 1 9 5 4 , at about 9:00 in the evening, the defendants,

on the pretext that a companion needed treatment, gained entrance in the
house of Isidro Tolentino, a quack doctor. When asked who among them
needed treatment, defendant Casalme suddenly and without warning,
shot the old m a n Isidro with a garand rifle, inflicting a wound from which
Isidro died the next morning. Honorata Barquilla, wife of Isidro, grabbed
a bolo and proceeded to hack the defendant Gamboa. Awakened by the
commotion, and upon seeing Gamboa struggling with his mother, Lucas
Tolentino took hold of a knife and stabbed Gamboa in the back. One of the
defendants tried to force open their aparador where the spouses kept their
money and valuables but Honorata prevented him from doing so. Because
of the resistance offered by mother and son, the intruders hurriedly left the
house. Honorata and her son suffered slight physical injuries inflicted by
the culprits. Prosecuted, defendants were found guilty.

Held: The trial court found the defendants guilty of three separate
crimes, namely: attempted robbery with homicide for the killing of Isidro
Tolentino, the complex crime of attempted robbery with slight physical
injuries for the wounding of Honorata Barquilla, and the same crime for the
wounding of Lucas Tolentino, as a result of which three separate penalties
were imposed. Appellants are guilty of only one crime, namely, attempted
robbery with homicide and slight physical injuries, under Article 297 of the
Revised Penal Code, penalized with reclusion temporal in its maximum
period to reclusion perpetua, and that due to the aggravating circumstances
of nighttime, dwelling, and craft, without any mitigating circumstances to
offset the same, the greater penalty should be imposed, namely, reclusion
perpetua.
Note: The slight physical injuries should be disregarded in the
designation of the offense, for there is no such crime as attempted robbery

697
c
 Art. 298 ROBBERY BY EXECUTION OF DEEDS

with homicide and slight physical injuries. Art. 297 speaks of attempted or
frustrated robbery with homicide.

A r t . 2 9 8 . Execution of deeds by means of violence or inti-

midation.— A n y p e r s o n w h o , w i t h i n t e n t t o d e f r a u d a n o t h e r ,
by means of violence or intimidation, shall compel h i m to
sign, execute, or deliver any public instrument or document,
shall be held guilty of robbery a n d p u n i s h e d by the penalties
respectively prescribed in this Chapter.

Elements:
1. That the offender has intent to defraud another.
2. That the offender compels him to sign, execute, or deliver any public
instrument or document.
3. That the compulsion is by m e a n s of violence or intimidation.

"Shall be held guilty of robbery and punished by the penalties

respectively prescribed in this chapter."
If the violence used resulted in the death of the person to be defrauded,
the crime is robbery with homicide and the penalty for that crime as
prescribed in paragraph 1 of Art. 294 shall be imposed.
If the execution of deeds by m e a n s of violence is only in the attempted
or frustrated stage and the violence used resulted in the death of the person
to be defrauded, the penalty prescribed in Art. 297 shall be imposed.

Must the document be public?

The Spanish test of this article says "escritura publico o documento."
The adjective "public" m u s t therefore describe the word "instrument"
only. Hence, this article applies even if the document signed, executed or
delivered is a private or commercial document.

Art. 298 is not applicable if the document is void.

Art. 298 is not applicable if the document is void ill Cuello C'alon.
< ndigo Penal. 10th Ed., pp. 820-824)
II a person, by means of violence or intimidation and w i t h intent lo
flelraud. compelled another to sign a void document, would he be liable f o r
-jrave coercion? No. because in grave coercion, the offender does not have

H9.X
 ROBBERY WITH FORCE UPON THINGS Art. 298
In Inhabited House, Public Building, Etc.

intent to gain. It s e e m s that he would be liable for physical injuries, if the

violence resulted in physical injuries, or grave threats under subdivision
No. 2 of Art. 282, if there is only intimidation.

Distinguished from coercion.

When the offended party is under obligation to sign, execute or deliver
the document under the law, there is no robbery. There will be coercion
if violence is used in compelling the offended party to sign or deliver the
document.
Thus, one who, having bought and fully paid the price of a car,
compelled the seller by m e a n s of violence or intimidation to sign, execute
and deliver the corresponding deed of sale, would be guilty of grave coercion,
not robbery since there is no intent to defraud.

Section Two. — Robbery by the use of force upon things

This is the other kind of robbery. The person liable for robbery by the
use of force upon things, does not u s e violence against or intimidation of any
person in taking personal property belonging to another with intent to gain,
for, otherwise, he will be liable under Art. 294.
Robbery by the u s e of force upon things is committed only when either
(1) the offender entered a house or building by any of the means specified
in Art. 299 or Art. 302, or (2) even if there w a s no entrance by any of those
means, he broke a wardrobe, chest, or any other kind of locked or closed or
sealed furniture or receptacle in the house or building, or he took it away to
be broken or forced open outside. In any of such cases, the taking of personal
property belonging to another with intent to gain from the broken furniture
or receptacle, or the taking away of the locked or closed or sealed furniture
or receptacle to be broken or forced open outside the house or building would
be robbery.

What are the two kinds of robbery with force upon things?
They are:
1. Robbery in an inhabited house or public building or edifice
devoted to religious worship. (Art. 299)
2. Robbery in an uninhabited place or in a private building. (Art.
302)
One essential requisite of robbery with force upon things under
Articles 299 and 302 is that the malefactor should enter the building or
dependency where the object to be taken is found. Articles 299 and 302

699
Art. 299 ROBBERY WITH FORCE UPON THINGS
In Inhabited House, Public Building, Etc.

clearly contemplate that the malefactor should enter the building (casa
habitada o lugar habitado o edificio). If the culprit did not enter the building,
there would be no robbery with force upon things. (People vs. Jaranilla, 55
SCRA 563)

A r t . 2 9 9 . Robbery in an inhabited house or public building

or edifice devoted to worship. — A n y a r m e d p e r s o n w h o s h a l l
commit robbery in an inhabited house or public building or
edifice d e v o t e d to religious w o r s h i p , shall be p u n i s h e d by
reclusion temporal,1 i f t h e v a l u e o f t h e p r o p e r t y t a k e n s h a l l
e x c e e d 250 pesos, a n d if —
(a) T h e m a l e f a c t o r s s h a l l e n t e r t h e h o u s e o r b u i l d i n g
in which the robbery is committed, by any of the following
means:
1. T h r o u g h an o p e n i n g not i n t e n d e d for e n t r a n c e
or egress;
2. B y b r e a k i n g a n y w a l l , roof, o r floor o r b r e a k i n g
any door or window;
3. By using false keys, picklocks, or similar tools;
4. By using any fictitious name or pretending the
exercise of public authority.
Or i f -
(b) T h e r o b b e r y b e committed under any of the
following circumstances:
1. By breaking of doors, wardrobes, chests, or any
other kind of locked or sealed furniture or receptacle;
2. By taking such furniture or objects away to be
broken or forced open outside the place of the robbery.
When the offenders do not carry arms and the value of
the property taken exceeds 250 pesos, the penalty next lower
8
in degree shall be imposed.
The same rule shall be applied w h e n the offenders are
armed, but the value of the property taken does not exceed
250 pesos.

7
See Appendix "A," Table of Penalties, No. 28.
"See Appendix "A," Table of Penalties, No. 19.

700
 ROBBERY WITH FORCE UPON THINGS Art. 299
In Inhabited House, Public Building, Etc.

When said offenders do not carry arms and the value

t a k e n d o e s not e x c e e d 250 pesos, t h e y shall suffer the penalty
prescribed in t h e t w o next p r e c e d i n g paragraphs, in its mini-
9
m u m period.

I f the robbery b e c o m m i t t e d i n o n e o f t h e d e p e n d e n c i e s o f
an inhabited house, public building, or building dedicated
to religious worship, the penalties next lower in degree than
t h o s e p r e s c r i b e d i n t h i s a r t i c l e s h a l l b e i m p o s e d . (As amended
by Republic Act No. 18)

Robbery with force upon things under Art. 2 9 9 are of two kinds.
Note that Art. 299 h a s two subdivisions; they are subdivision (a) and
subdivision (b).

ROBBERY WITH FORCE UPON THINGS UNDER SUBDIVISION (A).

Elements:
1. That the offender entered (a) an inhabited place, or (b) public building,
or (c) edifice devoted to religious worship.
2. That the entrance w a s effected by any of the following means:
a. Through an opening not intended for entrance or egress;
b. By breaking any wall, roof, or floor or breaking any door or
window;
c. By using false keys, picklocks or similar tools; or
d. By using any fictitious name or pretending the exercise of public
authority.
3. That once inside the building, the offender took personal property
belonging to another with intent to gain.

The offender must "enter the house or building in which the rob-
bery is committed."
Thus, if the offender merely inserted his hand through an opening
in the wall or used a pole through the window to get the clothes inside the
room, while the offender remained outside the house or building, the crime
committed is theft, not robbery.

9
See Appendix "A," Table of Penalties, No. 20.

701
 Art. 299 ROBBERY WITH FORCE UPON THINGS
In Inhabited House, Public Building, Etc.

There must be evidence or the facts must show that the accused
entered the dwelling house or building by any of the means
enumerated in subdivision (a) of Art. 299.
In the case of U.S. vs. Callotes, 2 Phil. 16, it was held that in the
absence of evidence to show how the offenders effected an entrance into
the convent where they took personal property, there can be no conviction
under Art. 508 of the Penal Code (now Art. 299 of the Revised Penal Code).
The reason for this ruling is that one of the elements of robbery with
force upon things under Art. 299 states that the entrance is effected by any
of the means described in subdivision (a) of that article.
Thus, where the manner of entrance into the house w a s not proven,
the crime is theft and not robbery. (People vs. Aurillo, C.A., 46 O.G. 2169)
This ruling applies where both the outside door and a window of the
house are open, so that it is possible that the accused might have passed
through the door.
But if at the time of the discovery of the loss of personal property in the
house, the outside door remained locked and not destroyed and a window
was opened or broken open, there is circumstantial evidence of unlawful
entry sufficient to establish robbery with force upon things.

In entering the building, the offender must have an intention to

take personal property.
The accused, by m e a n s of a bolo and screw driver, began to open the
door of the store which also served as the dwelling of a Chinaman. After
loosening one of the bars of the door and becoming aware that the inmates
therein had been awakened, the accused tried to escape, but were arrested
by the policemen who had been watching t h e m all the time.
Held: It is not correct to convict the accused of attempted robbery.
There is no evidence to show that the intention of the accused w a s to
commit robbery, or that they knew that they would find money inside
the store. There still remains a sufficient indication of the existence of an
intention different from that of committing robbery. The crime committed
is attempted trespass to dwelling under Art. 280, par. 2. (People vs. Tayag,
et al, 59 Phil. 606)

The place entered must be a house or building.

When the culprit enters the parked automobile through the window,
the glass of which he broke, the crime is theft if personal property is taken
therefrom, because the automobile is not a house or building.

702
 ROBBERY WITH FORCE UPON THINGS Art. 299
In Inhabited House, Public Building, Etc.

What inhabited house includes.

Inhabited house is any shelter, ship or vessel constituting the dwelling
of one or more persons even though the inhabitants thereof are temporarily
absent therefrom w h e n the robbery is committed. (Art. 301)

What public building includes.

Public building is every building owned by the Government or
belonging to a private person but used or rented by the Government,
although temporarily unoccupied by the same. (Art. 301)
The burnt edifice had not been inaugurated, but was to be used as
a public school. The evidence shows that said edifice had already been
delivered by the contractor to the municipality of Bigaa. What makes a
building public is not its inauguration for the purpose intended, but the
fact of the State or any of its agencies having the title thereto. (People vs.
Constantino, 46 Phil. 745)

Robbery in a public building.

Where the defendant entered through the window of a public high
school building and took from the building two microscopes, he was guilty of
robbery under the first paragraph of Art. 299. (U.S. vs. Acacio, 37 Phil. 70)
But if the building belonged to a private school, the crime is robbery
under Art. 302, because it is either an uninhabited place or a building other
than those mentioned in the first paragraph of Art. 299.

Robbery in an edifice devoted to religious worship.

Where the accused, by m e a n s of a small lever or nail, forced open
the top of the poor box in the church, took the money therein contained
and appropriated it to himself, the crime committed was robbery with force
upon things committed in an edifice devoted to religious worship under
paragraph (b), No. 1, of Art. 299.

Any of the four means described in subdivision (a) of Art. 299 must
be resorted to by the offender to enter a house or building, not to
get out.
Note the opening sentence of subdivision (a) which states, "The
malefactors shall enter the house or building in which the robbery is
committed, by any of the following means:"
1. Through an opening not intended for entrance or egress.
The window or a hole through the wall already in existence is not
intended for entrance or egress. If the culprit enters the building through

703
 Art. 299 ROBBERY WITH FORCE UPON THINGS
In Inhabited House, Public Building, Etc.

such opening and once inside he takes personal property belonging to the
occupants therein, the crime committed is robbery.
In the case ofPeople vs. Co Cho, 62 Phil. 828, the offenders entered the
house of the offended party, by passing through the window of the closet, and
once inside, took the watch and money of the offended party. The offenders
were convicted of robbery.
But if the culprit had entered the house through an open door, and the
owner, not knowing that the culprit was inside, closed and locked the door
from the outside and left, and the culprit, after taking personal property in
the house, went out through the window, it is only theft, not robbery.

The whole body of culprit must be inside the building to constitute

entering.
When the accused only introduced his hand through the broken glass
of a show window which he had broken in order to remove the watches
therefrom, there is no robbery, because no entrance of his body w a s made.
(People vs. Adorno, C.A., 40 O.G. 567)

2. By breaking any wall, roof, or floor or breaking any door or

window.
Note the word "breaking" used in this m e a n s of entering the building.
The force used in this m e a n s m u s t be actual, as distinguished from that in
the other means which is only constructive force.

The wall must be an outside wall.

The wall broken m u s t be an outside wall, not a wall between rooms
in a house or building, because the breaking of the wall m u s t be for the
purpose of entering the house or building where the robbery is committed.
But if a room is occupied by a person as his separate dwelling, the
breaking of its inside wall may give rise to robbery.

The outside door must be broken.

The accused pried the door out of the groove in which it ran and
pushed it inward. Once inside, he took personal property belonging to the
occupants of the store.
Held: The Spanish text of paragraph (a) 2 of Article 299 of the Revised
Penal Code is as follows: "Por rompimiento de pared, techo o suelo, a fractura
depuerta o ventana." The words "fractura de puerta o ventana" clearly m e a n
"the breaking of a door or window," and imply more than the mere forcing

704
 ROBBERY WITH FORCE UPON THINGS Art. 299
In Inhabited House, Public Building, Etc.

open of a door or window. If the defendant had forced open a window and
entered in that way, he would, of course, be guilty of robbery because of
having entered the house through an opening not intended for entrance-
but in the case at bar, the defendant entered by forcing open the door by
m e a n s of some instrument. It w a s neither alleged nor proved that the door
was broken. The accused not having entered the store by any of the means
specified in Article 299 of the Revised Penal Code, the crime committed by
h i m w a s theft. (People vs. Fernandez, 58 Phil. 674)
Where the door itself w a s intact, and the accused entered the store by
removing the hinges or hooks to which the padlocks were attached, as well
as the lock of the door knob, the crime committed w a s simple theft. Where
entrance is effected through a m e a n s intended for entrance or egress, in
order to qualify the crime as robbery, there m u s t be an actual breaking
or smashing in opening the door. Removing the hook or the contraption to
which the padlock is placed to lock the door, or using an article to open the
lock attached to the door knob, is certainly not the "breaking" contemplated
by Articles 299 and 302, Revised Penal Code. (People vs. Lising, C.A., 62
O.G. 9819)

The term "door" used in paragraph No. 2 of subdivision (a) of Art. 299
refers to an outside door. It is mentioned as one of the means of entering the
house or building and it can be no other than the main or back door which
m u s t first be opened to effect entrance by that means.

3. By using false keys, picklocks or similar tools.

False keys are genuine keys stolen from the owner or any keys other
than those intended by the owner for use in the lock forcibly opened by the
offender. (Art. 305)
Picklocks or similar tools are those specially adopted to the commission
of the crime of robbery. (See Art. 304)

The genuine key must be stolen, not taken by force or with intimi-
dation, from the owner.
Thus, where the offenders intimidated the inmates then outside the
house, requiring them to produce the key to the main door, once in possession
thereof they used it to open the door, and entered the house where they took
personal property, the crime committed was robbery with intimidation of
person under paragraph 5 of Art. 294, not robbery with force upon things by
using a false key. (See U.S. vs. Cabamngan, 7 Phil. 191; U.S. vs. Macamay.
36 Phil. 893)

705
 Art. 299 ROBBERY WITH FORCE UPON THINGS
In Inhabited House, Public Building, Etc.

The false key or picklock must be used to enter the building.

The use of false key or picklock refers to the mode of entering the
house or building and not to the method of opening a trunk in the house
(U.S. vs. Macamay, 36 Phil. 893) or to the method of opening the drawer of
the cabinet. (People vs. Lasam, CA-G.R. No. 14362-R, Feb. 14, 1956)

It is only theft when the false key is used to open wardrobe or

locked receptacle or drawer or inside door.
1. The use of a false key in opening a wardrobe from which the offender
took personal property cannot give rise to robbery, for as regards the
wardrobes, chests, or any other kind of locked or sealed furniture or
receptacle, Art. 299(b) requires that the same be broken, not merely
opened.
2. Opening the money drawer by using the stolen key is not robbery.
(People vs. Fernandez, 58 Phil. 674)
3. If the false key or picklock w a s used to open an inside door, like the
door of a room, and once inside the culprit took therefrom personal
property of another of another, it is only theft.
But if the room is a separate dwelling place of a person, or a
family, the use of false key to open its door m a y give rise to robbery.

The use of a fictitious name or the act of pretending to exercise

authority must be to enter the building.
This takes place w h e n the robbers represented t h e m s e l v e s as detectives
by displaying metal badges similar to those worn by regular police officers
and once inside, took the money of the offended party. (People vs. Urbano,
et al., 50 Phil. 90)

Note: In the case of People vs. Urbano, et al., the facts show that the
accused were already inside the store of a Chinaman w h e n they represented
themselves as detectives. It s e e m s that u s i n g the fictitious n a m e s or
pretending the exercise of public authority m u s t be the efficient cause of the
opening by the offended part of the door of his house to the accused.

ROBBERY WITH FORCE UPON THINGS UNDER SUBDIVISION (B)

OF ART. 299.

Elements:
1. That the offender is inside a dwelling house, public building, or edifice
devoted to religious worship, regardless of the circumstances under
which he entered it;

706
 ROBBERY WITH FORCE UPON THINGS Art. 299
In Inhabited House, Public Building, Etc.

2. That the offender takes personal property belonging to another, with

intent to gain, under any of the following circumstances:
a. by the breaking of doors, wardrobes, chests, or any other kind of
locked or sealed furniture or receptacle; or
b. by taking such furniture or objects away to be broken or forced
open outside the place of the robbery.

Entrance into the building by any of the means mentioned in

subdivision (a) of Article 299 is not required in robbery under
subdivision (b) of same article.
It will be noted that the robbery denned in Article 299 is committed in
two ways, as stated in subdivisions (a) and (b). Subdivisions (a) and (b) are
separated by the words "or i f , indicating thereby that each subdivision is
independent of the other.
Hence, to commit the robbery denned in subdivision (b) of Article 299,
it is not necessary that the offender should have entered the building by any
of the m e a n s mentioned in subdivision (a).
Thus, a guest in the house of the offended party or a servant in that
house may be guilty of this kind of robbery if he breaks open a locked
wardrobe or chest inside that house or if he takes it outside to be broken,
and once broken, takes therefrom personal property.

The term "door" in paragraph No. 1, subdivision (b) of Art. 299,

refers only to "doors, lids, or opening sheets" of furniture or other
portable receptacles — not to inside doors of house or building.
The reason for this ruling is that paragraph No. 2 of the same
subdivision and article speaks of "taking such furniture or objects away to
be broken or forced open outside the place of the robbery," in contrast and
as distinguished from the door indicated in paragraph No. 2, subdivision (a)
of same Art. 299, which refers to the doors of the building, the breaking of
which is resorted to by the malefactors to gain entrance into the building.
(People vs. Puzon and Martinez, C.A., 48 O.G. 4878)
Note: The wisdom of this ruling is doubted. It is believed that the term
"doors" in subdivision (b) of Art. 299 refers to inside doors of the house or
building. Under the above ruling, the word "doors" would be unnecessary
in subdivision (b) of Art. 299, because the breaking of furniture or other
receptacle may include the breaking of its door, lid or opening sheet.

707
 Art. 299 ROBBERY WITH FORCE UPON THINGS
In Inhabited House, Public Building, Etc.

Breaking the keyhole of the door of a wardrobe, which is locked, is

breaking a locked furniture.
Art. 299, subsection (b) 1, speaks of, among others, the breaking of
"locked or sealed furniture or receptacle," not "breaking of the lock" as
argued by appellant. Breaking or destroying the keyhole of the door of an
aparador which was locked is virtually destroying a "locked furniture."
True indeed, the Revised Penal Code does not state, as one of the modes of
committing robbery, the "destruction of a keyhole." But the destruction of a
keyhole of an aparador is itself a destruction of a locked furniture. Just as
one who hurts his finger, hurts his hand. (People vs. Tupaz, et al., C.A., 50
O.G. 11249)

When sealed box or receptacle is taken out of the house or building

for the purpose of breaking it outside, it is not necessary that it is
actually opened.
A person who carries away a sealed box or receptacle for the purpose of
breaking the same and taking out its contents outside the place of robbery is
guilty of consummated robbery even though he does not succeed in opening
the box.
The phrase "to be broken or forced open outside" in subdivision (b),
paragraph 2, of Art. 299, only indicates the objective element of the offense.

It is estafa or theft, if the locked or sealed receptacle is not forced

open in the building where it is kept or taken therefrom to be
broken outside.

A person who opens by force a certain locked or sealed receptacle

which has been confided into his custody and takes the money contained
therein, is guilty of estafa and not robbery, because the accused does not
commit the act in the house of the offended party or the accused does not
take the receptacle out from the house of its owner. And it is theft w h e n a
locked receptacle is found on the side of the street and it is forcibly opened
and the contents thereof are taken.

The penalty for robbery with force upon things in inhabited house,
public building or edifice devoted to religious worship depends on
the value of property taken and on whether or not offender carries
arm.

When the robbery is committed —

1. By ARMED person and the value of property taken EXCEEDS
P250 - RECLUSION TEMPORAL.

708
 ROBBERY IN AN UNINHABITED PLACE AND A BAND Art. 300

2. By U N A R M E D person and the value of property taken

EXCEEDS P250 - PRISION MAYOR.
3. By ARMED person but the value of property taken DOES NOT
exceed P250 - PRISION MAYOR.
4. By U N A R M E D person and the value of property taken DOES
NOT exceed P 2 5 0 - PRISION MAYOR MINIMUM.
5. In a D E P E N D E N C Y of inhabited house, public building, or
edifice devoted to religious worship — penalty NEXT LOWER
in degree than those SPECIFIED ABOVE.

A bolo is not an arm when used by a servant to open a trunk in his

master's house.
Thus, a servant who used a bolo in breaking open a trunk then in
the house of his master and took money therefrom was guilty of robbery
committed by an unarmed person. (U.S. vs. Saludo, 9 Phil. 213)

Arm carried must not be used to intimidate.

The weapon carried by the offender m u s t not have been used to
intimidate a person, for the reason that once the circumstance of intimidation
enters in the commission of the crime, it is sufficient to remove the offense
from Art. 299 and place it within the purview of Art. 294.

Even those without arms are liable to the same penalty.

The liability for carrying arms while robbing an inhabited house is
extended to each of the offenders who take part in the robbery, even if some
of them do not carry arms. (Guevara, citing Dec. Sup. Ct. of Spain, Oct. 27,
1882)

Reason why heavier penalty is imposed for robbery in a dwelling

house.
Note that the penal law punishes more severely the robbery in a house
used as a dwelling than that committed in an uninhabited place, because of
the possibility that the inhabitants in the former might suffer bodily harm
during the commission of the robbery. (U.S. vs. Bajet, 25 Phil. 105)

A r t . 3 0 0 . Robbery in an uninhabited place and by a band.

— T h e robbery m e n t i o n e d in the n e x t p r e c e d i n g article, if

709
 Art. 301 WHAT IS INHABITED HOUSE, ETC.

committed in an uninhabited place and by a band, shall be

punished by the maximum period of the penalty provided
therefor.

Robbery in an inhabited house, public building or edifice devoted

to religious worship is qualified when committed by a band AND
in an uninhabited place.
The robbery mentioned in Art. 299, if committed in an uninhabited
place AND by a band, shall be punished by the maximum period of the
penalty provided therefor.
The two qualifications (uninhabited place and by a band) m u s t concur.
(U.S. vs. Morada, et al., 23 Phil. 477)
The fact that the robbery with force upon things in inhabited house
or public building or edifice devoted to religious worship w a s committed in
an uninhabited place and by a band must be alleged in the information to
qualify the offense.

The inhabited house, public building, or edifice devoted to religious

worship must be located in an uninhabited place.
The robbery mentioned in Art. 299, is committed in an inhabited
house, public building or edifice devoted to religious worship. Such house,
building or edifice m u s t be located in an uninhabited place.
In the case of U.S. vs. Morada, supra, it is said: "In this case, it does
not appear that the house wherein the robbery w a s perpetrated w a s located
in an uninhabited place."

Distinction between the two classes of robbery as to their being

qualified.

Robbery with force upon things (Art. 299), in order to be qualified,

must be committed in an uninhabited place and by a band (Art. 300); while
robbery with violence against or intimidation of persons m u s t be committed
in an uninhabited place or by a band. (Art. 295)

A r t . 3 0 1 . What is an inhabited house, public building,

or building dedicated to religious worship and their depen-
dencies. — I n h a b i t e d h o u s e m e a n s a n y s h e l t e r , s h i p , o r
vessel constituting the dwelling of one or more persons, even

710
 WHAT IS INHABITED HOUSE, ETC. Art. 301

though the inhabitants thereof shall temporarily be absent

therefrom w h e n the robbery is committed.

All interior courts, corrals, w a r e h o u s e s , granaries,

barns, coachhouses, stables, or other departments, or
e n c l o s e d places c o n t i g u o u s to t h e b u i l d i n g or edifice, h a v i n g
an interior entrance connected therewith and which form
part of the whole, shall be d e e m e d dependencies of an
inhabited house, public building, or building dedicated to
religious worship.

Orchards a n d o t h e r l a n d s u s e d for cultivation or

production are not included in the terms ofthe next preceding
paragraph, even if closed, contiguous to the building, and
having direct connection therewith.

The term "public building" includes every building

o w n e d by the Government or belonging to a private person
but used or rented by the Government, although temporarily
unoccupied by the same.

Robbery in sunken ship.

A steamship containing silver currency and paper money sank. The
following day, the defendant, discovering the location of the sunken ship,
dived down there, entered the same, and took therefrom the sum of P15.000,
enclosed in sealed boxes. The ship w a s not yet abandoned by its owner.
Held: The defendant w a s guilty of robbery. (U.S. vs. Rey, 8 Phil. 500)
Note: A ship is covered by the term "inhabited house." The boxes which
were taken from the ship were reinforced with iron straps and nails. They
were broken by the defendant in order to take possession of the money
contained therein. The robbery committed is covered by Art. 299, subdivision
(b), No. 2.

The place is still inhabited house even if the occupant was

absent.
A stored several trunks containing merchandise in a house belonging
to B. B was not living in said house, but A used to sleep there at night as
B's caretaker. A failed to sleep in said house one night. That night, certain
persons entered the same through the window and took therefrom two
trunks containing personal property.

711
 Art. 301 WHAT IS INHABITED HOUSE, ETC.

Is this robbery in an uninhabited place? No, the place is an inhabited

house, although A was absent therefrom when the robbery took place. (U.S.
vs. Bajet, 25 Phil. 105)
Notwithstanding the fact that for a period of almost a month, the
house where the robbery was committed was actually uninhabited, it is still
robbery in an inhabited house within the meaning of Arts. 299 and 301,
because the building in question was ordinarily inhabited and intended as a
dwelling. (People vs. Ganir, C.A., 51 O.G. 856)

Dependencies, defined.
Dependencies of an inhabited house, public building or building
dedicated to religious worship — are all interior courts, corrals, warehouses,
granaries or inclosed places contiguous to the building or edifice, having an
interior entrance connected therewith, and which form part of the whole.
(Art. 301, par. 2)
Note: Three requisites:
(1) Must be contiguous to the building;
(2) Must have an interior entrance connected therewith;
(3) Must form part of the whole.
Thus, if the information alleges that the robbery w a s committed in
a garage situated in the premises of house No. 1572, General Luna street,
that allegation is not equivalent to a charge that the robbery w a s committed
in a dependency of an inhabited house, for a garage m a y or m a y not be a
dependency of the house. It will be a dependency of t h e house if the three
requisites mentioned are present.
The place where the robbery w a s committed w a s not a dependency
of a public building, because the storeroom where the property taken w a s
kept does not seem to be a structure contiguous to the building. (People vs.
Puzon, et al., C.A., 48 O.G. 4878)

Example of a dependency.
A small store located on the ground floor of the house, belonging to the
owner of the store, is a dependency of the house, because the house and the
store form one single whole, there being no partition between t h e m and that
the inmates in going to the main stairway have to enter the store which has
a door. (U.S. vs. Ventura, et al., 39 Phil. 523)

Orchards and lands used for cultivation, not dependencies.

Orchards and other lands used for cultivation or production are not
included in the term "dependencies." (Art. 3 0 1 , par. 3)

712
 ROBBERY IN AN UNINHABITED PLACE Art. 302

A r t . 3 0 2 . Robbery in an uninhabited place or in a private

building. — A n y r o b b e r y c o m m i t t e d i n a n u n i n h a b i t e d p l a c e
o r i n a b u i l d i n g o t h e r t h a n t h o s e m e n t i o n e d i n t h e first
paragraph of Article 299, if the value of the property taken
e x c e e d s 2 5 0 p e s o s s h a l l b e p u n i s h e d b y prision correccional
1 0
in its m e d i u m a n d m a x i m u m periods, provided that any of
the following circumstances is present:

1. If the entrance has been effected through any

o p e n i n g not i n t e n d e d for entrance or egress;
2. I f a n y w a l l , roof, floor, o r o u t s i d e d o o r o r w i n d o w
has been broken;
3. If the entrance has been effected through the use of
false keys, picklocks, or other similar tools;
4. If any door, wardrobe, chest, or any sealed or closed
furniture or receptacle has been broken;
5. If any closed or sealed receptacle, as mentioned
in the preceding paragraph, has been removed, even if the
same be broken open elsewhere.
W h e n t h e v a l u e o f t h e p r o p e r t y t a k e n d o e s not e x c e e d 250
1 1
pesos, the penalty next lower in degree shall be imposed.
In t h e c a s e s specified in A r t i c l e s 294, 295, 297, 299, 300,
a n d 302 of this Code, w h e n the property taken is mail matter
or large cattle, the offender shall suffer the penalties next
h i g h e r i n d e g r e e t h a n t h o s e p r o v i d e d i n s a i d a r t i c l e s . (As
amended by Com. Act No. 417)

Elements:
1. That the offender entered an uninhabited place or a building which
was not a dwelling house, not a public building, or not an edifice
devoted to religious worship.
2. That any of the following circumstances was present:

,0
See Appendix "A," Table of Penalties, No. 15.
"See Appendix "A," Table of Penalties, No. 8.

713
 Art. 302 ROBBERY IN AN UNINHABITED PLACE

a. The entrance was effected through an opening not intended for

entrance or egress;
b. A wall, roof, floor, or outside door or window was broken;
c. The entrance was effected through the use of false keys, picklocks
or other similar tools;
d. A door, wardrobe, chest, or any sealed or closed furniture or
receptacle was broken; or
e. A closed or sealed receptacle was removed, even if the same be
broken open elsewhere.
3. That with intent to gain, the offender took therefrom personal property
belonging to another.

The "uninhabited place" is an uninhabited building.

The "uninhabited place" mentioned in Art. 302 is a building, because
paragraphs Nos. 1 and 3 speak of "entrance," which necessarily refers to a
building. Paragraph No. 2 speaks of parts of building.
In U.S. vs. Galuran, 12 Phil. 339, it was held that a robbery committed
in a warehouse belonging to the Smith Bell & Co., in the City of Manila, is
one committed in an uninhabited place.
There is an inaccuracy in the English translation of Article 302. Robo
en lugar no habitado o edificio particular. — "El robo cometido en u n lugar
no habitado o en un edificio que no sea de los comprendidos en el parrafo
primero del articulo 299, x x x." (Tomo 26, Leyes Publicas 479) The term
"lugar no habitado" is erroneously translated as "uninhabited place," a
term which may be confounded w i t h t h e expression "uninhabited place" in
Articles 295 and 300 of the Revised Penal Code, which is the translation
of despoblado and which is different from the term lugar no habitado in
Article 302. The term lugar no habitado is the antonym of casa habitado
(inhabited house) in Article 299. (People vs. Jaranilla, 55 SCRA 563)

"Building other than those mentioned in the first paragraph of Art.

299."
The place where the robbery is committed under Art. 302 m u s t be
a building which is not an inhabited house or public building or edifice
devoted to religious worship.
Although a store may be used as a dwelling, to sustain a conviction for
robbery in an inhabited house, the information m u s t allege that the store
was used and occupied as a dwelling (People vs. Tubog, 49 Phil. 620, 624),
otherwise the robbery should be considered as having been perpetrated in

714
 ROBBERY IN AN UNINHABITED PLACE Art. 302

an uninhabited place denned and penalized under Article 302 of the Revised
Penal Code. (People vs. Angeles, 14 C A . Rep. 946)

What the term "building" includes.

Under the term "building" is included any kind of structure used for
storage or safekeeping of personal property, such as (a) freight car and (b)
warehouse. (U.S. vs. Magsino, 2 Phil. 710; U.S. vs. Roque, et al., 4 Phil. 242)
A pigsty is not a building within the meaning of Art. 302 which refers to
habitable buildings.

Entrance through an opening not intended for entrance or egress,

or after breaking a wall, roof, floor, door or window, or through the
use of false keys, picklocks, or other similar tools is not necessary,
if there is breaking of wardrobe, chest, or sealed or closed furniture
or receptacle, or removal thereof to be broken open elsewhere.
Paragraphs Nos. 4 and 5 of Art. 302 do not require that the offender
m u s t have entered the uninhabited building through an opening not intended
for entrance or egress, or after breaking a wall, roof, floor, door or window,
or through the use of false keys, picklocks, or other similar tools. The word
"entrance" in paragraphs Nos. 1 and 3 is not used in said paragraphs Nos. 4
and 5. While it is true that the word "entrance" is not also used in paragraph
No. 2, yet it can be inferred that entrance is required under that paragraph.
(See People vs. Adorno, C.A., 40 O.G. 567, cited under Art. 299)

Unnailing of cloth over door of freight car is, breaking by force.

The unnailing of a piece of cloth which w a s nailed over the door so
as to seal it, the customary manner of sealing a freight car, is held to be
breaking by force. (U.S. vs. Magsino, 2 Phil. 710) Note: Compare this case
with the case of People vs. Fernandez, supra, where it was held that the door
m u s t be broken.

Breaking padlock is use of force upon things.

The crime committed by the accused who entered into a warehouse
by breaking the padlock of the door and took away personal property is
robbery. (People vs. Mesias, 38 O.G. No. 23)
Note: This ruling does not seem to be justified by any of the paragraphs
of Art. 302. It cannot be under breaking outside door, because only the
padlock, not the door, was broken. It cannot be under use of false key,
because no false key was used.

715
 Art. 302 ROBBERY WITH FORCE UPON THINGS
In Uninhabited Place

The decision of the Court of Appeals on this point is different from

that of the Supreme Court.
In the case of People vs. Puzon, et al, 48 O.G. 4778, the Court of
Appeals held that the accused who destroyed the padlock of the door of the
garage of the District Engineer's Office and took therefrom 35 tires, was
guilty of theft, because the door or the lock thereof was not broken, for it was
only the detachable accessory gadget — the padlock — which was broken.

Use of fictitious name or pretending the exercise of public authority,

not in this article.
The use of fictitious name or pretending the exercise of public authority
is not a means of entering the building under this article, because the place
is uninhabited and no person could be deceived thereby.

The receptacle must be "closed" or "sealed."

The furniture or receptacle here is "sealed or closed." In Art. 299, it is
either "locked or sealed."
If a person, who had entered a warehouse, opened without breaking,
a closed but not locked chest and took therefrom personal property, would
that be robbery? It would s e e m that it is theft only, because paragraphs
Nos. 4 and 5 use, respectively, the phrases "has been broken" and "be broken
open" implying that there m u s t be breaking of the receptacle to constitute
robbery.
A receptacle is a container.
It would seem that an example of sealed or closed receptacle is a
crate which contains article or merchandise. Thus, the breaking of a crate
containing a television set inside a building at the pier, and taking its
contents, is robbery.

Example of robbery in an uninhabited house.

The servant of the owner of an oil mill who takes away the key of the
warehouse and hands it to another, who in turn opens the warehouse with
that key and steals and takes away oil from the warehouse, is also guilty of
robbery in an uninhabited house as principal by conspiracy.

"If any closed or sealed receptacle has been removed, even if the
same be broken open elsewhere."
Is the mere removal of closed or sealed receptacle sufficient under
paragraph 5 of Art. 302?

716
 ROBBERY WITH FORCE UPON THINGS Art. 302
In Uninhabited Place

It s e e m s that it is not sufficient. Although the phrase, "even if the

s a m e be broken open elsewhere," does not indicate a condition or requisite
that the closed or sealed receptacle be broken after removing it, this kind of
robbery requires at least an intention to open it by force.

Closed or sealed receptacle removed and broken open else-

where.
Two persons at night entered the office and store of a corporation,
located at M. de Comillas, Manila. Entrance w a s effected through the door,
without using force to open it. A closed steel safe w a s removed from the
building and taken to a place where it w a s forced open. The two persons
took the contents thereof. The crime committed is robbery under par. 5 of
Art. 302. (People vs. N u a s , C.A., 52 O.G. 6264)

Taking of mail matter or large cattle in any kind of robbery makes

the penalty higher by one degree.
When the property t a k e n is a mail matter or large cattle during any of
the robbery denned in Arts. 294, 295, 297, 299, 300 and 302, the penalties
next higher in degree than those provided in said article shall be imposed.
(Art. 302, last par.)
Is this qualified robbery? There is no such n a m e of crime, but since the
penalty is one degree higher, it m a y be called qualified robbery.

Motor vehicle, coconuts and fish are not included.

Note that only mail matter and large cattle are mentioned in Art. 302.
Motor vehicle, coconuts in the plantation, and fish in the fishpond are not
included.
Thus, if the culprit breaks the door of the garage which is a dependency
of a dwelling house and took from the garage a jeep, the penalty for the
crime committed is not one degree higher.

Penalty is based only on value of property taken.

Note also that the offender's being armed is not important under this
article for the reason that there is no person who can be injured or killed.
This circumstance is important under Art. 299 for graduating the penalty,
because when the offender is armed, there is the danger of the inmates
being injured or killed.

717
 Art. 303 ROBBERY WITH FORCE UPON THINGS
WHEN MITIGATED

Robbery in a store — when punishable under Art. 299 or under

Art. 302.
1. If the store is used as a dwelling of one or more persons, the robbery
committed therein would be considered as committed in an inhabited
house under Art. 299. (People vs. Suarez, G.R. No. L-6431, March 29,
1954)
2. If the store was not actually occupied at the time of the robbery and
was not used as a dwelling, since the owner lived in a separate house,
the robbery committed therein is punished under Art. 302. (People vs.
Silvestre, C.A., 34 O.G. 1535)
3. If the store is located on the ground floor of the house belonging to the
owner of the store, having an interior entrance connected therewith,
it is a dependency of an inhabited house and the robbery committed
therein is punished under the last paragraph of Art. 299. (U.S. vs.
Tapan, 20 Phil. 211)

A r t . 3 0 3 . Robbery of cereals, fruits, or firewood in an

uninhabited place or private building. — In t h e c a s e s e n u -
merated in articles 299 a n d 302, w h e n the robbery consists
in the taking of cereals, fruits, or firewood, the culprit shall
suffer the penalty n e x t l o w e r in d e g r e e t h a n that prescribed
in said articles.

Penalty is one degree lower when cereals, fruits, or firewood are

taken in robbery with force upon things.
When the robbery described in Arts. 299 and 302 consists in the
taking of cereals, fruits, or firewood, the penalty next lower in degree than
that prescribed in said articles shall be imposed.

"In the cases enumerated in Articles 299 and 302."

The penalty next lower in degree shall be imposed for robbery of
cereals, fruits, or firewood, only w h e n the robbery is committed by the use of
force upon things, without violence against or intimidation of any person, in
an inhabited house, public building, or edifice devoted to religious worship
(Art. 299) or in an uninhabited place or private building (Art. 302).
Thus, even if the offender took from the camarin about 15 sacks of
palay through an opening made on the floor of said camarin, since the

718
 POSSESSION OF PICKLOOKS Art. 304

robbery committed with force upon things w a s accompanied with violence

against or intimidation of persons, Art. 303 is not applicable. The offender
should be punished under Art. 294. (Manahan vs. People, 73 Phil. 691)

Cereals are seedlings which are the immediate product of the soil.
The word "cereals" is not the correct translation of the Spanish words
"semilla alimenticia." "Semilla" m e a n s seedling which is the immediate
product of the soil. Hulled rice is not the immediate and natural product of
the soil.
Hence, the taking of sacks of hulled rice does not fall under this article,
but under the penultimate paragraph of Art. 302. (People vs. Mesias, 65
Phil. 267)
Palay (the local n a m e for unhulled rice) is "cereal" and is included in
the term "semilla alimenticia" used in the Spanish text of the Revised Penal
Code, as it is grain in its original state and, under proper conditions, can and
will germinate into the plant that produces it. The offense charged in the
case at bar, therefore, properly comes under Art. 303 of the Revised Penal
Code and within the original jurisdiction of the Justice of the Peace Court.
(People vs. Rada, et al., G.R. No. L-16988, Dec. 30, 1961, 3 SCRA 880)

The palay must be kept by the owner as "seedling" or taken for

that purpose by the robbers.
Thus, taking 9 cavanes of palay, valued at P135, from another's
granary by breaking its wall, is robbery as denned and penalized in Art. 302,
par. 2, and not in Art. 303, inasmuch as the quantity and value of the palay
robbed are not insignificant and there is no showing that the same was kept
by the owner as "seedling" or taken for that purpose by the robbers. (People
vs. Taugan, CA-G.R. No. 1287-R, May 26, 1949)

Art. 304. Possession of picklocks or similar tools. —

A n y person w h o shall, without lawful cause, have in his
possession picklocks or similar tools specially adopted to
the commission of the crime of robbery, shall be punished by
arresto mayor i n i t s m a x i m u m p e r i o d t o prision correccional
1 2
in its m i n i m u m period.
The same penalty shall be imposed upon any person
w h o shall m a k e s u c h tools. If the offender be a locksmith, he

2
See Appendix "A," Table of Penalties, No. 15.

719
 Art. 305 FALSE KEYS

shall suffer t h e penalty of prision correccional i n i t s m e d i u m

1 3
and m a x i m u m periods.

Elements of illegal possession of picklocks or similar tools.

1. That the offender has in his possession picklocks or similar tools.
2. That such picklocks or similar tools are specially adopted to the
commission of robbery.
3. That the offender does not have lawful cause for such possession.

Actual use of picklocks or similar tools, not necessary in illegal

possession thereof.
It is not necessary that the picklocks or similar tools are actually used
to commit robbery.

Liability of a locksmith.
If the person who makes such tools is a locksmith, the penalty is
higher.
If he is not a locksmith, the penalty is the s a m e as that for a mere
possessor.

A r t . 3 0 5 . False keys. — T h e t e r m "false k e y s " s h a l l be

deemed to include:

1. The tools m e n t i o n e d in the next p r e c e d i n g article;

2. Genuine keys stolen from the owner;
3. Any keys other than those intended by the owner
for u s e in t h e lock forcibly o p e n e d by t h e offender.

Possession of false keys in paragraphs 2 and 3 of Art. 305, not

punishable.

Would a person found in possession of genuine key stolen from the

owner be held criminally liable? This article provides no penalty. It is clear

13
See Appendix "A," Table of Penalties, No. 15.

720
 FALSE KEYS Art. 305

that the possession of the false keys mentioned in paragraphs 2 and 3 of Art.
305 is not punishable.

Problem:
Before leaving for another province with h i s family, A entrusted the
key of the main door of his house to B, A's neighbor. One day, B used the
key in opening the door of A's house and once inside took some personal
belongings of A. Is B guilty of robbery? No, because the key which he used
in opening the door w a s not stolen, it having been entrusted to him. It was
not a picklock or similar tool, as denned in Art. 305. It w a s the key intended
by the owner (A) for u s e in the lock opened by B.

Example of use of false key.

A proposed to B, a porter of a warehouse, to get some cases of whisky
from the warehouse, offering to pay P16 a case. A suggested to B that he
should take an impression of the key of the warehouse in soap paste and
have another made by a locksmith. With the key made from the impression,
B w a s able to open the warehouse from which he took cases of whisky.
Held: Robbery with the u s e of false key. A is a principal by inducement.
(U.S. vs. Galuran, 12 Phil. 339)

721
 Chapter Two
BRIGANDAGE

Brigandage, defined.
Brigandage is a crime committed by more than three armed persons who
form a band of robbers for the purpose of committing robbery in the highway
or kidnapping persons for the purpose of extortion or to obtain ransom, or for
any other purpose to be attained by means of force and violence.

A r t . 3 0 6 . Who are brigands — Penalty. — W h e n m o r e t h a n

three a r m e d persons form a b a n d of robbers for the purpose
of committing robbery in the highway, or kidnapping persons
for the p u r p o s e of extortion or to o b t a i n r a n s o m or for a n y
other purpose to be attained by means of force and violence,
they shall be d e e m e d h i g h w a y robbers or brigands.
Persons found guilty of this offense shall be punished
b y prision mayor i n i t s m e d i u m p e r i o d t o reclusion temporal
1
in its m i n i m u m period, if t h e act or acts c o m m i t t e d by t h e m
are not punishable by higher penalties, in w h i c h case, they
shall suffer s u c h h i g h penalties.

If any of the arms carried by any of said persons be an

unlicensed firearm, it shall be p r e s u m e d that said persons
are highway robbers or brigands, and in case of conviction,
t h e p e n a l t y s h a l l b e i m p o s e d i n t h e m a x i m u m p e r i o d . (As
amended by Republic Act No. 12)

There is brigandage when —

1. There be at least four armed persons.
2. They formed a band of robbers.

•See Appendix "A," Table of Penalties, No. 25.

722
 WHO ARE BRIGANDS Art. 306

3. The purpose is any of the following:

a. To c o m m i t robbery in the highway; or

b. To k i d n a p p e r s o n s for t h e purpose of extortion or to obtain

ransom; or

c. To attain by means of force and violence any other

purpose.

Must be a band of robbers.

Art. 306 mentions "bands of robbers" which is formed by more than
three armed persons.
Hence, a band of dissidents whose purpose is to attain by means of
force and violence, the destruction of army installations, cannot be convicted
of brigandage. They do not form a band of robbers.

The existence of any of the purposes mentioned in Art. 306 is

sufficient.
It would not be necessary to show, in a prosecution under Art. 306,
that a member or members of the band actually committed highway robbery,
etc., in order to convict him or them.

The purpose of the band must be (1) to commit robbery in the

highway, or (2) to kidnap persons for the purpose of extortion
or obtaining ransom, or (3) any other purpose to be attained by
means of force and violence.
Evidence that the accused w a s a member of an armed band is not
sufficient to convict him of brigandage, where there is no evidence showing
that the band was organized for any of the purposes mentioned in Art. 306.
(U.S. vs. Caneta, 4 Phil. 450)
But if the accused were members of a lawless band and that the
firearms possessed by them were unlicensed, it is to be presumed that they
were highway robbers or brigands. (People vs. De la Rosa, C.A., 49 O.G.
2863)
Note: This ruling is based on par. 3 of Art. 306.

Presumption of law as to brigandage — all are presumed highway

robbers or brigands, if any of them carries unlicensed firearm.
If any of the arms carried by any of said persons be an unlicensed
firearm, it shall be presumed that said persons are highway robbers or

723
 Art. 306 WHO ARE BRIGANDS

brigands, and in case of conviction, the penalty shall be imposed in the

maximum period. (Art. 306, last paragraph)

The arms carried by the members of the band of robbers may be

any deadly weapon.
Brigandage may be committed without the use of firearms. The term
"armed" as used in the first paragraph of Art. 306 covers arms and weapons
in general, not necessarily firearms. (People vs. De la Rosa, et al., C.A., 49
O.G. 2863)

Main object of law is to prevent formation of band of robbers.

The main object in enacting this law (Art. 306) is to prevent the
formation of such band; in fact, the heart of the offense consists in the
formation of the band by four or more persons conspiring together for the
purpose of robbery in the highway, or kidnapping persons for extortion or
to obtain ransoms, or for any other purpose to be attained by m e a n s of force
and violence, and such formation is sufficient to constitute a violation of the
law. (U.S. vs. Decusin, et al., 2 Phil. 536)

The only things to prove are:

a. That there is an organization of more than three armed persons
forming a band of robbers.
b. That the purpose of the band is any of those e n u m e r a t e d in
Art. 3 0 6 .
c. That they went upon the highway or roamed upon the country for that
purpose. (See U.S. vs. Decusin, et al., supra)
d. That the accused is a member of such band.

Previous activities considered in determining existence of brigand-

age.
When the armed band, previous to kidnapping and taking personal
property of the offended party, had kidnapped and looted other persons on
two other occasions, the band w a s held to be that of brigands and liable for
brigandage. (People vs. Laporeda, et al., 44 O.G. 1816)
Note: The previous activities of the armed band were considered,
because they proved the purpose of the band.

The term "highway" includes city streets.

Streets within, as well as roads outside the cities are covered by the

724
 AIDING AND BETTING BRIGANDS Art. 307

word "highway." Hence, brigandage may be committed in Manila. (U.S vs

Tan Seco, et al, 4 Phil. 382)

"If the act or acts committed by them (brigands) are x x x punishable

by higher penalties in which case, they shall suffer such high
penalties."
The penalty of prision mayor in its medium period to reclusion
temporal in its m i n i m u m period is prescribed for brigandage only. If the
brigands committed robbery with homicide or kidnapping with a demand for
ransom, which is penalized with higher penalty, they shall be prosecuted for
robbery with homicide or kidnapping and the penalty for the crime actually
committed shall be imposed on them.

Brigandage and robbery in band, distinguished.

Both brigandage and robbery in band require that the offenders form
a band of robbers.
In brigandage, the purpose of the offenders is any of the following: (1)
to commit robbery in the highway, or (2) to kidnap persons for the purpose of
extortion or to obtain ransom, or (3) for any other purpose to be attained by
m e a n s of force and violence; in robbery in band, the purpose of the offenders
is only to commit robbery, not necessarily in the highway.
If the agreement among more than three armed men was to commit
only a particular robbery, the offense is not brigandage, but only robbery, in
band. (U.S. vs. Feliciano, 3 Phil. 422)
In brigandage, the mere formation of a band for any of the purposes
mentioned in the law is sufficient, as it would not be necessary to show that
the band actually committed robbery in the highway, etc.; in robbery in
band, it is necessary to prove that the band actually committed robbery, as
a mere conspiracy to commit robbery is not punishable.

Art. 3 0 7 . Aiding and abetting a band of brigands. —

Any person knowingly a n d in any m a n n e r aiding, abetting,
or protecting a b a n d of brigands as described in the next
preceding article, or giving t h e m information ofthe movements
o f t h e p o l i c e o r o t h e r p e a c e officers o f t h e G o v e r n m e n t (or
of the forces of the U n i t e d States Army, w h e n the latter are
acting in aid of the Government), or acquiring or receiving
the property taken by s u c h brigands, shall be punished by

725
Art. 307 PRESIDENTIAL DECREE NO. 532

prision correccional i n i t s m e d i u m p e r i o d t o prision mayor i n

2
its m i n i m u m period.
It shall be p r e s u m e d that the person performing any
of the acts provided in this article has performed t h e m
knowingly, unless the contrary is proven.

Elements:
1. That there is a band of brigands.
2. That the offender knows the band to be of brigands.
3. That the offender does any of the following acts:
a. He in any manner aids, abets or protects such band of brigands;
or
b. He gives them information of the movements of the police or
other peace officers of the Government; or
c. He acquires or receives the property taken by such brigands.

Presumption of law as to knowledge.

It shall be presumed that the person performing any of the acts
provided in this article has performed t h e m knowingly, unless the contrary
is proven. (Art. 307, par. 2)

Highway robbery/brigandage under Presidential Decree No. 532.

Highway Robbery/Brigandage. — The seizure of any person for
ransom, extortion or other unlawful purposes, or the taking away of the
property of another by m e a n s of violence against or intimidation of persons
or force upon things or other unlawful means, committed by any person on
any Philippine Highway.
The penalty of reclusion temporal in its m i n i m u m period shall be
imposed. If physical injuries or other crimes are committed during or on
the occasion of the commission of robbery or brigandage, the penalty of
reclusion temporal in its medium and m a x i m u m periods shall be imposed.
If kidnapping for ransom or extortion, or murder or homicide, or rape is
committed as a result or on the occasion thereof, the penalty of death shall
be imposed.

2
See Appendix "A," Table of Penalties, No. 16.

726
 PRESIDENTIAL DECREE NO. 532 Art. 307

Philippine Highway. — It shall refer to any road, street, passage,

highway and bridges or other parts thereof, or railway or railroad within
the Philippines used by persons, or vehicles, or locomotives or trains for the
movement or circulation of persons or transportation of goods, articles, or
property or both.

Any person who aids or protects highway robbers or abets the

commission of highway robbery or brigandage shall be considered
as an accomplice.
Any person who knowingly and in any manner aids or protects
highway robbers/brigands, such as giving t h e m information about the
movement of police or other peace officers of the government, or acquires
or receives property taken by such brigands or in any manner derives
any benefit therefrom; or any person who directly or indirectly abets the
commission of highway robbery or brigandage, shall be considered as an
accomplice of the principal offenders and be punished in accordance with
the Rules prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts
provided in this Section has performed t h e m knowingly, unless the contrary
is proven.
Repealing Clause. — Pertinent portions of Act No. 3815, otherwise
known as the Revised Penal Code; and all laws, decrees, or orders or
instructions, or parts thereof, insofar as they are inconsistent with this
Decree are hereby repealed or modified accordingly. (Presidential Decree
No. 532, took effect on August 8, 1974)

727
 Chapter Three
THEFT*

Theft, defined.
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.

A r t . 3 0 8 . Who are liable for theft. — T h e f t i s c o m m i t t e d

by any person who, with intent to gain but without violence
against, or intimidation of persons nor force u p o n things,
shall take personal property of a n o t h e r w i t h o u t the latter's
consent.
Theft is likewise c o m m i t t e d by:
1. A n y p e r s o n w h o , h a v i n g f o u n d lost p r o p e r t y , s h a l l fail
to deliver the same to the local authorities or to its owner;
2. A n y person w h o , after h a v i n g maliciously d a m a g e d
the property of another, shall remove or m a k e use of the
fruits or object of t h e d a m a g e c a u s e d by him; a n d
3. Any person w h o 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 h u n t or fish u p o n
the same or shall gather fruits, cereals, or other forest or
farm products.

The following are liable for theft:

1. Those who, (a) with intent to gain, (b) but without violence against or
intimidation of persons nor force upon things, (c) take, (d) personal
property, (e) of another, (f) without the latter's consent.

See P.D. No. 1612 under Art. 19, Book 1.

728
 THEFT Art. 308

2. Those who, (a) having found lost property, (b) fail to deliver the same
to the local authorities or to its owner.
3. Those who, (a) after having maliciously damaged the property of
another, (b) remove or make use of the fruits or object of the damage
caused by them.
4. Those who (a) enter an inclosed estate or a field where (b) trespass is
forbidden or which belongs to another and, without the consent of its
owner, (c) hunt or fish upon the s a m e or gather fruits, cereals or other
forest or farm products.

Elements of theft:
1. That there be taking of personal property.
2. That said property belongs to another.
3. That the taking be done with intent to gain.
4. That the taking be done without the consent of the owner.
5. That the taking be accomplished without the use of violence against
or intimidation of persons or force upon things. (U.S. vs. De Vera, 43
Phil. 1000; People vs. Yusay, 50 Phil. 598)
Note: In the case of U.S. vs. De Vera, supra, the phrase "taking away"
is used in stating one of the elements of theft. But in the case of People vs.
Yusay, supra, citing Viada, the word "away" is not used in connection with
the taking of personal property.

Theft, distinguished from robbery.

What distinguishes theft from robbery is that in theft, the offender
does not use violence or intimidation or does not enter a house or building
through any of the m e a n s specified in Article 299 or Article 302 in taking
personal property of another with intent to gain.
There is no evidence that in taking the six roosters from their coop
or cages in the yard of Baylon's house, violence against or intimidation of
persons was employed. Hence, Article 294 of the Revised Penal Code cannot
be invoked. Neither could such taking fall under Article 299 of the Revised
Penal Code which penalizes robbery in an inhabited house (casa habitada),
public building or edifice devoted to worship. The coop was not inside
Baylon's house. Nor was it a dependency thereof within the meaning of
Article 301 of the Revised Penal Code. (People vs. Jaranilla, 55 SCRA 563)

Meaning of "taking" in theft.

In theft, the taking away or carrying away of personal property of
another is not required as in larceny in common law. (People vs. Mercado,

729
 Art. 308 THEFT

65 Phil. 665) Note the phrase used in Art. 308, which is, "shall take personal
property of another" — not shall take away such property.
The theft was consummated when the culprits were able to take
possession of the thing taken by them. It is not an indispensable element of
theft that the thief carry, more or less far away, the thing taken by him from
its owner. (People vs. Jaranilla, 55 SCRA 563)

People vs. Naval, et al.

(46 O.G. 2641)

Facts: While the truck loaded with bed sheets was enroute to its
destination, the accused dumped one of the boxes, containing 120 bed
sheets, on the ground, whereupon they were immediately arrested by a plain
clothesman who was with them on the truck, pretending to be a laborer.
It is contended by the accused that the crime of theft w a s not
consummated. It is urged that the first essential element of the crime of
theft is that the property be actually taken away by the thief or that the thief
must have obtained, at some particular moment, the complete, independent
and absolute possession and control of the thing desired, adverse to the
right of the owner or lawful possessor thereof.
Held: In a juridical sense, the consummation of the crime of theft takes
place upon the voluntary and malicious taking of the property belonging to
another which is realized by the material occupation of the thing whereby
the thief places it under his control and in such a situation as he could
dispose of it at once.
Note: This ruling applies also to the m e a n i n g of "taking" in robbery
with violence against or intimidation of any person.

When is taking complete so that the theft is consummated?

In the case of People vs. Naval, et al., supra, the taking is considered
complete only w h e n the offender is able to place the thing t a k e n under his
control and in such a situation as he could dispose of it at once.
In other cases, it w a s held that asportation is complete from the
moment the offender had full possession of the thing, even if he did not have
an opportunity to dispose of the same.

Illustrations:
1. While the accused w a s behind the offended party, in the midst of a
crowd in front of the public market, he abstracted from the pocket
of the trousers of the offended party, a pocketbook containing P12.
The accused already had the pocketbook, w h e n the offended party

730
 THEFT Art. 308

perceived the theft, caught hold of the accused's shirt-front, at the

same time shouting for a policeman; after a struggle he recovered his
pocketbook and let go of the accused, who w a s afterwards caught by a
policeman.
It w a s held that the contention that these facts only constitute
the crime of frustrated, and not consummated, theft is groundless.
The accused succeeded in taking the pocketbook, and that determines
the crime of theft. (People vs. Sobrevilla, 53 Phil. 227)
2. The defendant took from a chest a sum of money belonging to the
offended party and t h e n placed it over the cover of the chest. At the
moment, he w a s caught by two guards.
Held: The defendant having materially taken possession of
the money from the m o m e n t he took it from the place where it had
been, and having taken it with his hands with intent to appropriate
the same, he executed all t h e acts necessary to constitute the crime
which w a s thereby produced. On the act of making use of the money
was frustrated, which, however, does not go to make the elements of
consummated theft. (Decision of the Supreme Court of Spain, June 13,
1882)

When the place is surrounded by a fence or wall and one has to

pass to check point before going out, is the taking complete before
passing through the check point?
A truck loaded with stolen boxes of rifles was on the way out of the
check point in South Harbor surrounded by a tall fence when an MP guard
discovered the boxes on the truck. It w a s held that the crime committed was
frustrated theft, because of the timely discovery of the boxes on the truck
before it could pass out of the check point. (People vs. Diho, C.A., 45 O.G.
3446)
In the Supply Depot at Quezon City, the accused removed from the
pile nine pieces of hospital linen and took them to their truck where they
were found by a corporal of the MP guards when they tried to pass through
the check point. It w a s held that the crime committed was consummated
theft. (People vs. Espiritu, et al., CA-G.R. No. 2107-R, May 31, 1949)

Distinguished from the Dino case.

In the Espiritu case, it was held that the crime of theft was
consummated because the thieves were able to take or get hold ofthe hospital
linen and that the only thing that w a s frustrated, which does not constitute
any element of theft, is the use or benefit that the thieves expected to derive
from the commission of the offense.

731
 Art. 308 THEFT

In the Dino case, it was held that the crime committed is that of
frustrated theft, because the fact determinative of consummation in the
crime of theft is the ability of the offender to dispose freely of the articles
stolen, even if it were more or less momentarily. The Court of Appeals
followed the opinion of Viada in this case. (See 5 Viada, 103)

The ruling in the case of People vs. Dino, supra, should be applied
only in theft of bulky goods.
There is no substantial variance between the circumstances in this
case and those in the cited case of People vs. Dino.
We cannot bring ourselves to agree in the appellee's contention that
the crime was consummated. The "traditional ruling" cited by the appellee
is qualified by the words "is placed in a situation where he could dispose
of its contents at once." Obviously, while the truck and the van were still
within the compound, the appellant could not have disposed of the goods "at
once." This is entirely different from the case where a much less bulky and
more common thing as money w a s the object of the crime, where freedom to
dispose or make use of it is palpably less restricted. (People vs. Flores, C.A.,
62 O.G. 2644)

Must taking in theft have the character of permanency?

People vs. Fernandez, et al.

(C.A., 38 O.G. 985)

The accused, who were servants of the owner of a car, taking advantage
of their master's sleep, quietly took from the garage, the car and used it
for a drive to several places in Manila, with four lady companions. When
prosecuted for qualified theft, the accused claimed that they took the car
only to take a spin and learn to drive it, their intention being to return it
after a few hours. The theory of the defense is that the accused did not incur
liability for qualified theft, because the element of animus lucrandi (intent
to gain) is lacking.

It was held that the essential requisites of qualified theft were present:
First, there was the taking of another's personal property, as the accused
took away the car of the offended party. Second, there w a s intent to gain,
because, in the words of Groizard, "by using things, we derive from them
utility, satisfaction, enjoyment, pleasure, or what amounts to the same
thing, real gain." By gain is m e a n t not only the acquisition of a thing useful
to the purposes of life but also the benefit which in any other sense may be
derived or expected from the act which is performed. The accused, who used
the car to take their lady friends for a ride, derived gain from the use of

732
 THEFT Art. 308

this m e a n s of transportation. Third, the taking of the car was without the
consent of the owner thereof, as they took advantage of the owner's sleep.
And fourth, the accused being domestic servants of the offended party, acted
with abuse of the confidence reposed in t h e m by him.

People vs. Galang, et al.

(C.A., 43 O.G. 577)

A policeman who w a s entering a theater for the purpose of looking for

a person, requested several boys outside to keep watch over his jeep. Moved
by a desire of having a joy ride, the accused boarded the jeep, after leaving
word to the other boys to inform the policeman that they would return soon,
and drove it around Plaza Sta. Cruz.
It w a s held that t h e accused were not guilty of qualified theft of motor
vehicle, because their intention w a s to return it after the joy ride.
Note: The accused should have been prosecuted for a violation of Sec.
48 (a) of the Motor Vehicle Law, which penalizes the act of taking a joy ride
in a motor vehicle without the owner's consent.
The element of "taking" referred to in the law means the act of
depriving another of the possession and dominion of movable thing coupled
with the intention, at the time of t h e "taking," of withholding it with the
character of permanency.

People vs. Rico, et al.

(C.A., 50 O.G. 3103)

The youngsters took the horses of the complainants without the latter's
knowledge and consent, and rode on t h e m in order to get more quickly to
the place of a barrio dance. Their intention w a s to return the horses to their
owners after they would have returned from the dance.
It was held that although intent to gain may have existed in the
commission of the act, as such intent is indicated in the case of People
vs. Fernandez (38 O.G. 985), the "taking" of the horses, another essential
element of the offense of theft, was not duly established, because the "taking"
referred to in Article 308 must be accompanied by the intention, at the time
of the taking, of withholding the thing with character of permanency.
Note: The ruling in the cases of People vs. Fernandez, et al. supra, and
People vs. Martisano, et al., C.A., 48 O.G. 4417, considers the taking of the
motor vehicle belonging to another for a joy ride or to use it as a means of
transportation as qualified theft, even if the motor vehicle was intended to
be returned after its use. But what was mainly considered in these cases is
the meaning of intent to gain.

733
 Art. 308 THEFT

The offender must have the intention of making himself the owner
of the thing taken.
In the case of People vs. Rico, supra, the decision of the Supreme
Court of Spain of November 2 8 , 1 9 0 3 , is cited as to the meaning of the term
"apoderar" or "apoderarse," that is, the offender must have the intention
of placing the property taken under his control and of making himself the
owner thereof.

There is "taking" even if the offender received the thing from the
offended party.
The unlawful taking may occur at or soon after the transfer of physical
possession (not juridical possession) of the thing to the offender. The actual
transfer of possession m a y not always and by itself constitute the unlawful
taking, but an act done soon thereafter by the offender which m a y result
in unlawful taking or asportation. In such case, the article is deemed to
have been taken also, although in the beginning, it w a s in fact given to,
and received by, the offender. (People vs. Roxas, C.A., 63 O.G. 716, citing
Supreme Court decisions)

Illustration:
The accused, Nieves de Vera, received from an Igorot named Pepe,
a bar of gold for the purpose of having it examined by a goldsmith, and
P200 in bank notes to have t h e m changed into silver coins, and thereafter
appropriated said bar of gold and notes with intent to gain and without the
consent of the owner thereof.
Held: That the accused is guilty of the crime of theft. (U.S. vs. De
Vera, 43 Phil. 1000)
Note: Although the accused received the bar of gold and notes from the
owner thereof, her subsequent felonious conversion of t h e m related back to
the time she received them, so that the bar of gold and notes are deemed to
have been unlawfully taken by the accused.
But if the accused received the thing from another person in trust or on
commission, or for administration, or under a quasi-contract or a contract of
bailment, and later misappropriated or converted t h e thing to the prejudice
of another, the crime committed is not theft, but estafa under Art. 315, par.
Kb), because under any of those transactions, the juridical possession of the
thing is transferred to the offender.
In the case of U.S. vs. De Vera, supra, the accused, not having received
them in trust, or on commission, or for administration, or under a quasi-
contract, did not have juridical possession of the bar of gold and bank notes.

734
 THEFT Art. 308

She had only the physical or material possession thereof. Hence, she was
guilty of theft.

If there is no taking of personal property, the crime of theft is not

committed.
The wife who delivers to the husband, property in her lawful
possession as depositary or pledgee, without the knowledge and consent of
the owner, might be guilty of a violation of the contract of deposit or pledge;
but the husband who p a w n s t h e property and uses the proceeds thereof to
settle his obligations, as per understanding with the wife, is not guilty of
theft although he knew that the property did not belong to his wife, because
there w a s no taking or abstracting of the article from the owner, the taking
and abstracting being w h a t constitute the crime of theft. (People vs. De los
Reyes, C.A., 60 O.G. 5175, citing the case of U.S. vs. Reyes, 6 Phil. 441)
Note: The Court of Appeals held that there w a s only civil liability in
this case.

Personal property.
Personal property as an element of theft includes electricity and gas
because electricity, the s a m e as gas, is a valuable article of merchandise
bought and sold like other personal property and is capable of appropriation
by another. (U.S. vs. Carlos, 21 Phil. 553; U.S. vs. Tambunting, 41 Phil.
364)
A meter reader of the Manila Electric Company who, in consideration
of money, knowingly misread the electric meter of a consumer and this
enabled the latter to appropriate 11,880 kilowatts of electric current, without
paying for it, is guilty of theft. The resulting situation does not materially
differ from the consumer who used a "jumper" to deflect the current from
the house electric meter. (Natividad vs. Court of Appeals, et al., 1 SCRA
380)
Promissory note and check may be the object of theft, because while
they may not be of value to the accused, they undoubtedly are of value to
the offended party. (People vs. Koc Song, 63 Phil. 371; U.S. vs. Raboy, 25
Phil. 1)
Thus, if the invoice is stolen, the owner of the store would be unable to
collect his credits, because the customers cannot be compelled to pay without
it being first shown to him. (People vs. Mendoza, CA-G.R. No. 44473, March
25,1936)
The amount which a document represents must serve as the basis of
the penalty. (U.S. vs. Tan Jenjua, 1 Phil. 38)

735
 Art. 308 THEFT

That the property belongs to another.

Thus, he who takes away the property pledged by him to another,
without the latter's consent, does not commit theft, but estafa, for he is the
owner of the thing taken by him.

Selling the share of a partner or joint owner is not theft.

His unlawful disposition of the share belonging to his partner or joint
owner was undoubtedly a violation of their contract and a trespass upon
the rights of another but not an act constituting the crime of theft. (U.S. vs.
Reyes, 6 Phil. 441)
Note: Before the dissolution of the partnership or the division of the
property held in common, no part of the property of the partnership or the
property held in common truly belongs to a partner or co-owner.
See People vs. Tan Tay Cuan, C.A., 57 O.G. 6964, where the reason
given by the Court of Appeals is that the industrial partner h a s juridical
possession of the property acquired with funds supplied by the capitalist
partner.

Employee is not the owner of separation pay which is not actually

delivered to him.
The three accused were notified by their employer of the termination
of their services with separation pay of P120.00 each. In his office, the
employer placed three envelopes containing P 1 2 0 . 0 0 each on top of his desk.
The employer coughed and left to expectorate and, while expectorating,
one of the accused took the three envelopes and gave his co-accused one
envelope each. When the employer returned and found that the envelopes
were already in the possession of the accused, he told the accused that they
could not leave with the money without first signing the separation papers
showing receipt of the money. The accused refused to sign. The employer
went out to call a police officer, and w h e n he returned, the accused were
already gone. Prosecuted for theft, the accused maintained that an element
of the crime, i.e., that the property taken belongs to another, is not present,
claiming that the money belonged to them.

Held: The fact that the accused are entitled to separation pay under
Section 1 of Republic Act No. 1052, as amended, and have agreed to receive
P120.00 each as separation pay, did not automatically vest ownership of
the money in them for lack of proper delivery. The signing of the separation
papers was a condition which the employer intended to impose before
making delivery. Hence, when the accused took the money without signing
the papers, they were taking something which did not belong to them.
(People vs. De Jesus, et al, C.A., 59 O.G. 6658)

736
 THEFT Art. 308

Note: The accused denied on the stand that they took the money. The
denial of the accused that they took the money, when in fact they did, is
enough proof that the act of taking w a s done with intent to gain, and not for
the purpose of applying the money to their claim for separation pay.

Ownership not transferred before goods are weighed or measured.

In the sale of goods, which are usually tried, measured or weighed,
if, after the sale but before the measuring or weighing, a part of the goods
covered by the contract is taken by the purchaser, without the consent of
the vendor, he is guilty of theft, because until the weighing or measuring is
done, the transfer of the ownership is not effected.

As to intent to gain.
Intent to gain is presumed from the unlawful taking of personal
property belonging to another.
But if a person t a k e s personal property from another believing it to be
his own, the presumption of intent to gain is rebutted and, therefore, he is
not guilty of theft. (US. vs. Viera, 1 Phil. 584)
One who t a k e s personal property openly and avowedly under claim
of title made in good faith is not guilty of theft even though the claim of
ownership is later found to be untenable. (People vs. Lozada, CA-G.R. No.
3147-R, Dec. 2 1 , 1949)
But where the accused took the harvested crops on the land cultivated
by the complainant who had been adjudged the owner of said land in a civil
case brought by the accused against him, the accused was not acting in good
faith and, hence, he w a s guilty of theft. (U.S. vs. Villacorta, 30 Phil. 108)
Satisfaction and pleasure derived from the act of giving to another
what had been stolen is a real gain.
Defendant took and carried away some building materials without
the owner's knowledge and consent and gave them to another person. Held:
There is theft even if defendant did not take them for his own use. (People
vs. Santos, 53 Phil. 863)

Joy ride or using car of another to learn how to drive is sufficient

gain.
A joy ride in an automobile taken without the consent of its owner
constitutes "taking with intent to gain" because "by using things, we derive
from them utility, satisfaction, enjoyment, and pleasure, or what amounts
to the same thing, real gain." (People vs. Fernandez, C.A., 38 O.G. 985)

737
 Art. 308 THEFT

Is there intent to gain when the employee took the papers of his
employer and delivered them to the government investigators as
an act of revenge?
By the word gain is meant not only the acquisition of a thing useful
to the purpose of life but also the benefit which in any other use may be
derived or expected from the act which is performed.
In the case at bar, where the accused took the books, papers and
documents from the files of his employer and then delivered them to the
Committee on Good Government, House of Representatives, with which he
filed charges of tax evasion and bigamy against his employer, he undoubtedly
acted with intent to gain, for he derived therefrom the utility of presenting
them as evidence, the satisfaction of taking revenge against his employer,
and the pleasure of seeing his said employer being harassed by government
investigators. (People vs. Padilla, C.A., 61 O.G. 2027)

Dissenting:
Animo lucrandi means, as Viada says, "uno vil codicia" and not "un
sentimiento de odio o de venganza." (Viada, 6:221, 5.a edicion) Since the
jurisprudence cited by the majority, namely, People vs. Fernandez and
People vs. Martisano, supra, involves cases where the accused took the
thing, object of the crime, for the satisfaction of his "vil codicia," it cannot be
considered an authority in the present case, where the appellant, by his act
of delivering the records to the Committee on Good Government to convince
that Committee that said records would reveal complainant's tax evasion,
demonstrated that his intention w a s not to satisfy his greed but to take
revenge against the complainant.

Actual or real gain, not necessary in theft.

It is not necessary that there w a s real or actual gain on the part of
the offender or that he removed the stolen animals in order to m a k e use of
or derive some benefit from them. It is enough that on taking them, he was
then actuated by the desire or intent to gain. (People vs. Mercado, 65 Phil.
665)

Taking without the consent of the owner.

The consent contemplated in this element of theft refers to consent
freely given and not to one which m a y only be inferred from mere lack of
opposition on the part of the owner of the property taken.
Thus, the accused, who picked the pocket of the offended party while
the latter was hearing m a s s in a church and the latter, on account of the
solemnity of the act, although noticing the theft, did not do anything to

738
 THEFT Art. 308

prevent it, took the money of the offended party without his consent.
(Decision of the Supreme Court of Spain, Dec. 1, 1897)
Note: The law does not say without the knowledge of the owner of
the thing taken. Hence, even if the owner knew the taking, but he did not
consent to it, the accused is still liable for theft.

Allegation of owner's lack of consent cannot be dispensed with in

charging an ordinary theft.
We are aware that some decisions state that the crime of theft does
not require that the culprit should know the owner of the thing stolen. Other
authorities declare that it is not necessary for the existence of the crime of
theft that it should appear in a specific manner who is the owner of the
thing stolen, and that the crime is consummated provided the thing belongs
to another and the s a m e is taken with intent of gain. (Decision, Supreme
Court of Spain, Nov. 22, 1898 and October 4, 1905)
By and large, t h e s e pronouncements are merely generalizations
designed to cover all varieties of theft, from the one where the thing stolen
is taken directly from the owner's control to that committed by "any person
who having found lost property, shall fail to deliver the same to the local
authorities or to its owner" which is also theft under Article 308, paragraph
2(1), Revised Penal Code. The rulings, therefore, are not fully applicable to
the present case, which does not involve property lost (extraviada), nor do
they warrant the inference that the nonconsent of the owner or possessor
can be excused.
In the ordinary course of events, the owner of the thing (whoever
he should be) would not consent to the taking of his property without any
consideration or quid pro quo therefor; nevertheless, the possibility of such
consent remains and the law demands that it be negated in the information.
That the owner's lack of consent can not be dispensed with in charging an
ordinary theft under the first paragraph of Article 308 of the Penal Code, is
shown by the express requirement therein that the taking should be without
the consent of the owner. In view of the clear text of the law, an information
or charge that does not aver this lack of consent is manifestly bad and
insufficient, and may be quashed for failure to allege an essential element of
the deficit. (Pua Yi Kun vs. People, G.R. No. L-26256, June 26, 1968)

There is no theft when the taking of personal property is with the

consent of its owner.
A felonious taking is necessary in the crime of larceny and, generally speaking, a
taking which is done with the consent or acquiescence of the owner of the property
is not felonious. (People vs. Trinidad, 50 Phil. 65) Thus, an individual who
took possession of the cattle in the presence of the cattleman charged with

739
 Art. 308 THEFT

the care thereof, without any opposition or protest on his part, is not guilty
of the crime of theft inasmuch as he took the animal with the knowledge of
the person presumed to be the owner. (U.S. vs. Dacanay, 8 Phil. 617; People
vs. Sianson, CA-G.R. No. 9969-R, July 10, 1963, cited in People vs. Javier,
C.A., 62 O.G. 6453)

Robbery and theft compared.

For robbery to exist, it is necessary that there should be a taking
against the will of the owner; and for theft, it sufficed that consent on the
part of the owner is lacking. (People vs. Chan Wat, 49 Phil. 116)

The taking of personal property belonging to another must be

accomplished without violence against or intimidation of person.
A picked the pocket of B and, having taken B's wallet, A walked away.
B felt that his wallet was gone. He looked around and saw A just a few
meters away. B approached A and asked for his wallet. A threatened B with
bodily harm, boxed the latter, and ran away. Is the crime committed by A
theft or robbery? It is theft, because the taking of the wallet of B by A w a s
already complete w h e n A used violence against and intimidation of B.
The rule is different w h e n the violence used resulted in homicide, rape,
intentional mutilation, or serious physical injuries defined in paragraphs 1
and 2 of Art. 263. In any of such cases, the crime is robbery complexed with
one of such crimes, even if the taking of the personal property w a s already
complete w h e n the violence w a s employed.

When no force or violence was employed in the taking, as victim

was already heavily wounded.
In this case, the personal properties were t a k e n after accused-
appellant had already successfully carried out his primary criminal intent
of killing the victim and the taking did not necessitate the u s e of violence
or force upon the person of the victim nor force upon anything. Considering
that the victim w a s already heavily wounded w h e n his personal properties
were taken, there w a s no need to employ violence against or intimidation
upon his person. Accused-appellant can only be held guilty of the separate
offense of theft. (People vs. Basao, G.R. No. 128286, July 20, 1999)

It is not robbery when violence is for a reason entirely foreign to

the fact of taking.
A constabulary officer, suspecting that B had concealed and aided a
band of robbers, tied B in his house as a punishment. Several hours later, he
took the money with intent to gain from an open drawer of B.

740
 THEFT Art. 308

Is this theft or robbery?

Held: The fact that the owner of the money was tied at the time
the money w a s taken cannot be considered as violence for the purpose of
classifying the crime as robbery. The offended party w a s tied for some hours
previously for a reason entirely foreign to the act of taking the money (U S
vs. Birueda, 4 Phil. 229)

Force upon things in theft.

U n l e s s the force upon things is employed to enter a building, the
taking of the personal property belonging to another with intent to gain is
theft and not robbery.
Thus, if A entered t h e house of B through an open door and once inside
he removed by force, toilet fixtures and carried them away, A is liable for
theft in spite of the u s e of force upon things, because the force was not
employed to enter the house.
The only case where the taking of personal property with force upon
things is robbery, e v e n if the culprit did not enter the house or building
with force upon things, is w h e n a furniture, chest, or other locked or sealed
receptacle is broken in the house or building or taken therefrom and broken
outside.
Taking a bull belonging to the offended party from the corral where it
w a s inclosed, after destroying a part of the corral, is theft, because the corral
was not covered and not in any way connected with an inhabited house.
(U.S. vs. Rosales, et al., 1 Phil. 300) The reason for the ruling is that the
corral is neither a building nor a dependency of a building.

Presumption as to possession of stolen property.

When a person has in possession, part of the recently stolen property,
he is presumed to be the thief of all, in the absence of satisfactory explanation
of his possession. (U.S. vs. Ungal, 37 Phil. 835)
Note: The rule stated in this case applies only when all the goods were
lost at the same time, in the same place, and on the same occasion. It does not
apply where the things disappeared piece by piece, at different times and on
different occasions, and only a part of them was found in the possession of
the accused, in the absence of proof that he had the opportunity to take the
rest at other times.
When the stolen property is not found in the possession of the accused,
his prior possession may be proved by circumstantial or direct evidence of
his disposal of the property (36 C.J. 895,896), in which case the presumption
attaches to him. The presumption regarding possession of stolen property

741
 Art. 308 THEFT

does not exclusively refer to actual physical possession thereof but may
include prior unexplained possession. (People vs. Tanaotanao, 2 C A . Rep.
797)
Note: It is required that the property be recently stolen. Hence, if the
property was stolen a long time ago, the presumption does not lie.

The presumption does not arise in this case.

When all the recently stolen effects, like carabaos in this case, have
been found and recovered, one in the possession of the accused and another
in the pasture, untied, the presumption cannot rise, as it lacks basis. It is not
reasonable to believe that the accused had retained one in their possession
and freed the other in the pasture. (People vs. Beltran, et al., C.A., 40 O.G.,
Supp. 11, 153)

Finder of lost property (Paragraph No. 1, Art. 308).

Perez, who had in his possession the sum of P 1 5 0 in paper money,
hurried to the ticket window of a railroad station, at the same time drawing
out from his watch-pocket P2.00 to buy a ticket. Unnoticed by him, the bundle
of money bills dropped at his feet. The accused, a woman, who w a s passing
by at that moment, picked up the bundle of bills, and, hastily concealing
said bundle, moved on up the platform. After Perez had returned from the
ticket window, the accused approached h i m and handed P 3 0 in bills, saying
that was the money he had dropped. She kept t h e rest of the money.
Held: The accused is guilty of theft as a finder of lost property who
retained part of it with intent to gain. (U.S. vs. Santiago, 27 Phil. 483)

The term "lost property" embraces loss by stealing.

The accused was charged with having found and "kept in his possession
one male horse x x x belonging to Felix Muertigue, said accused knowing x x
x that the horse was stolen x x x and deliberately failed x x x to deliver the
same to the authorities or to its owner."
Appellee contends that since the complaint refers to a stolen horse, it
does not fall under paragraph No. 1 of Art. 308, "stolen property" not being
the same as "lost property." The argument is without merit. The word "lost"
is generic in nature, and embraces loss by stealing or by any act of a person
other than the owner, as well as by the act of the owner himself or through
some casual occurrence. If anything, the finder who fails deliberately to
return the thing lost m a y be considered more blameworthy if the loss w a s
by stealing than through some other m e a n s . (People vs. Rodrigo, 16 SCRA
475)

742
 THEFT Art. 308

How to prove this kind of theft.

It is necessary to prove:
(1) The time of the seizure of the thing;
(2) That it w a s a lost property belonging to another; and
(3) That the accused having had the opportunity to return or deliver
the lost property to its owner or to the local authorities, refrained
from doing so. (People vs. Jerusalem, C.A., 43 O.G. 1253)

Delay in the delivery of lost property to the local authorities is

immaterial, when the finder surrendered it voluntarily to the owner
when the latter came to his house to get it.
Thus, in a case where a rig driver, who found on the road a valise
containing clothes and other articles, failed to deliver it to the authorities
for 4112 days after finding it, it w a s held that he w a s not guilty of theft
under paragraph No. 1 of Art. 308, it appearing that he surrendered the
valise with all its contents to the owner w h e n the latter came to his house
to get it. (People vs. Carani, C.A., 1943 O.G. 60)

Paragraph No. 1 of Art. 308 not limited to actual finder.

A found in his carretela a purse containing money and jewelry left by
a passenger. A delivered it to B, a policeman, with a request to give it to C,
the owner thereof. B did not give it to C and appropriated it.
Held: B is liable for theft, because although B is not a finder in fact,
he is a finder in law.
The finder (A) acquires physical custody only and does not become
vested with the legal possession of the thing.
The person (B) to whom it w a s confided for delivery to its owner
assumes, by voluntary substitution, as to both the property and its owner,
the place occupied by the finder. (People vs. Avila, 44 Phil. 720)
The gist of this offense is the furtive taking and misappropriation of
the property found. (People vs. Avila, supra)
Note: The finder of lost property has only the physical possession
of the property. The person who received it from the finder cannot have
juridical possession of the property. The spring cannot rise above its source.
Hence, the policeman in the case of People vs. Avila, supra, cannot be held
liable for estafa.

743
 Art. 308 THEFT

The law does not require knowledge of the owner of the lost prop-
erty.
Due to a strong typhoon, a wooden chest containing money, jewelry,
clothing and other personal property, was washed away by the flood. It was
found by the accused. He took its contents.
Held: As long as the accused knew or had reason to know that the
property was lost, it was his duty to turn it over to the authorities, regardless
of whether or not he knew who was the owner of the lost property. The
Revised Penal Code does not require knowledge of the owner of the lost
property. (People vs. Panotes, et al., C.A., 36 O.G. 1008; People vs. Silverio,
C.A., 43 O.G. 2205)

Intent to gain is inferred from deliberate failure to deliver the lost

property to the proper person.
In this kind of theft, intent to gain is inferred from the deliberate failure
to deliver the lost property to the proper person, the finder knowing that the
property does not belong to him. (People vs. Rodrigo, 16 SCRA 475)

Finder of hidden treasure who misappropriated the share per-

taining to the owner of the property is guilty of theft as regards
that share.
The finder of hidden treasure on the property of another and by chance
is entitled to one-half thereof. (Arts. 438 and 439, C.C.) If he misappropriated
the other half pertaining to the owner of the property on which the hidden
treasure was found, he is liable for theft as to that share. (People vs.
Longdew, CA-G.R. No. 9380-R, J u n e 4, 1953)

Removing or making use of fruits or object of property maliciously

damaged (Paragraph No. 2, Art. 308).
A defendant who shot, killed and slaughtered the cattle of another,
which had destroyed defendant's plantation, and distributed the meat
among himself and his neighbors, is guilty of simple theft. (People vs.
Morillo, 40 O.G., Supp. 4, 107)

Hunting, fishing or gathering fruits, etc., in enclosed estate (Para-

graph No. 3, Art. 308).

Elements:

1. That there is an enclosed estate or a field where trespass is forbidden

or which belongs to another;

744
 PRESIDENTIAL DECREE NO. 534

2. That the offender enters the same;

3. That the offender hunts or fishes upon the same or gathers fruits
cereals or other forest or farm products in the estate or field; and
4. That the hunting or fishing or gathering of products is without the
consent of the owner.

Fishing should not be in the fishpond within the field or estate.

The fishing referred to in this article is not in the fishpond or fishery.
If the fish is taken from fishpond or fishery, it is qualified theft under Article
310.

Presidential Decree No. 534, which took effect on August 8,1974,

defines illegal fishing and prescribes stiffer penalties therefor, as
follows:
Prohibition.
It shall be unlawful for any person to catch, take or gather or cause to
be caught, taken or gathered fish or fishery/aquatic products in Philippine
waters with the u s e of explosives, obnoxious or poisonous substances or by
the u s e of electricity. Provided, That the Secretary of Natural Resources
may, subject to such safeguards and conditions he deems necessary, allow
for research, educational or scientific purposes only the use of explosives,
obnoxious or poisonous substance or electricity or catch, take or gather fish
or fishery/aquatic products in specified areas. (Sec. 2)
Penalties.
Violations of this Decree and the rules and regulations mentioned in
paragraph (f) of Section 1 hereof shall be punished as follows:
a. By imprisonment from 10 to 12 years, if explosives are used:
Provided, That if the explosion results (1) in physical injury to
any person the penalty shall be imprisonment from 12 to 20
years, or (2) in the loss of h u m a n life, then the penalty shall be
imprisonment from 20 years to life, or death;
b. By imprisonment from 8 to 10 years, if obnoxious or poisonous
substances are used: Provided, That, if the use of such substances
results in (1) physical injury to any person, the penalty shall be
imprisonment from 10 to 12 years, or (2) in the loss of human
life, then the penalty shall be imprisonment from 20 years to
life, or death;
c. By imprisonment from 6 months to 4 years, or by a fine of
from P500 to P5.000 for violation of the rules and regulations
mentioned in paragraph (f) of Section 1 hereof. (Sec. 3)

745
 PRESIDENTIAL DECREE NO. 534

Dealing in illegally caught fish or fishery/aquatic products.

Any person who knowingly possesses, deals in, sells or in any manner
disposes of, for profit, any fish, fishery/aquatic products which have been
illegally caught, taken or gathered shall, upon conviction by a competent
court, be punished by imprisonment from 2 to 6 years. (Sec. 4)

Definition of Terms:
For purposes of this Decree the following terms are defined:
a. Philippine Waters. — Include all bodies of water within Philip-
pine Territory such as rivers, streams, creeks, brooks, ponds,
swamps, lagoons, gulfs, bays and seas and other bodies of water
now existing, or which may hereafter exist in the provinces,
cities, municipalities, municipal districts, and barrios and the
sea or fresh water around, between and connecting each of the
islands of the Philippine Archipelago, irrespective of its depth,
breadth, length and dimension, and all other waters belonging to
the Philippines by historic or legal title, including the territorial
sea, the seabed, the insular shelves and other submarine areas
over which the Philippines h a s sovereignty or jurisdiction.
b. Fish and Fishery /Aquatic Products. — F i s h includes all fishes
and other aquatic animals such as crustaceans (crabs, prawns,
shrimps and lobsters, mollusks (clams, m u s s e l s , scallops,
oysters, snails and other shellfish). Fishery/aquatic products
include all products of aquatic resources in any form.
c. Fishing with the use of Explosives. — M e a n s the u s e of dyna-
mite other explosives, or chemical compound t h a t contain
combustible elements or ingredients that, upon ignition by
friction, concussion, percussion or detonation of all parts of the
compound, kill, stupefy, disable or render unconscious any fish
or fishery/aquatic products. It shall also refer to the u s e of any
other substance and/or device that causes explosion capable of
producing the said harmful effects on fish or fishery/aquatic
products.

d. Fishing with the use of Obnoxious or Poisonous Substance. —

Means the use of any substance or chemical, whether in raw
or processed form, harmful or harmless, which kill, stupefy,
disable, or render unconscious fish or fishery/aquatic products.
e. Electro-fishing. — M e a n s the u s e of electricity generated by dry
cell batteries, electric generators or other source of electric power
to kill, stupefy, disable or render unconscious fish or fishery/
aquatic products. It shall include the use of rays or b e a m s of
whatever nature, form or power.

746
 PRESIDENTIAL DECREE NO. 534

f. Violations of Rules and Regulations. — Means violations of

Fisheries Administrative Orders, rules and regulations promul-
gated by the Secretary of Natural Resources.
g. Persons. — Include natural and juridical persons, unless the
context intends otherwise. (Sec. 1)

Repealing Clause.
Act No. 4003, as amended, Republic Act No. 6451, laws, decrees,
orders, rules and regulations or parts thereof which are inconsistent with
this Decree are hereby repealed or modified accordingly. (Sec. 5)

"Highgrading" or theft of gold is punished by Presidential Decree

No. 581.
Section 1 . A n y p e r s o n w h o s h a l l t a k e g o l d - b e a r i n g o r e s
or rocks from a m i n i n g claim or m i n i n g c a m p or shall remove,
collect or gather gold-bearing ores or rocks in place or shall
extract or r e m o v e the gold from s u c h ores or rocks, or shall
prepare and treat such ores or rocks to recover or extract the
gold contents thereof, w i t h o u t the consent of the operator of
the m i n i n g claim, shall be guilty of "highgrading" or theft
o f g o l d a n d s h a l l s u f f e r a p e n a l t y o f prision correccional
in its m i n i m u m period, but if the accused is an employee
or laborer of the operator of the mining claim, the penalty
s h a l l b e prision correccional i n i t s m e d i u m p e r i o d w i t h o u t
prejudice to the imposition of the higher penalties provided
in Article 309 of the Revised Penal Code if the value of the
goods stolen so warrants. The penalty next lower in degree
than that prescribed hereinabove shall be imposed if the
offense is frustrated, and the penalty two degrees lower if
the offense is attempted.
Section 2 . T h e u n a u t h o r i z e d p o s s e s s i o n b y a n y p e r s o n
within a mining claim or mining camp of gold-bearing ores
or rocks or of gold extracted or removed from such ores or
r o c k s , s h a l l b e prima facie e v i d e n c e t h a t t h e y h a v e b e e n
stolen from the operator of a m i n i n g claim.
Section 3 . A n y p e r s o n w h o k n o w i n g l y b u y s o r a c q u i r e s
stolen gold-bearing ores or rocks or the gold extracted or
r e m o v e d therefrom shall be guilty of theft as an accessory
a n d p e n a l i z e d w i t h arresto mayor i n i t s m a x i m u m p e r i o d .

747
 PRESIDENTIAL DECREE NO. 534

Section 4 . A l l l a w s o r r e g u l a t i o n s i n c o n s i s t e n t h e r e w i t h
are hereby repealed or modified accordingly.
Section 5 . T h i s D e c r e e s h a l l t a k e e f f e c t i m m e d i a t e l y .
Done in the City of Manila, this 13th day of November, in
the year of Our Lord, nineteen h u n d r e d a n d seventy-four.

The use of tampered water or electrical meters to steal water or

electricity.
Presidential Decree No. 401, which took effect on March 1, 1974,
punishes with prision correccional in its minimum period or a fine ranging
from P2.000 to P6.000, or both, the unauthorized installation of water,
electrical or telephone connections, the use of tampered water or electrical
meters to steal water or electricity, the stealing or pilfering of water and/or
electrical meters, electric and/or telephone wires, and knowingly possessing
stolen or pilfered water and lor electrical meters, and stolen or pilfered
electric and/or telephone wires.
See the Presidential Decree as to the liability of the employee or officer
of the utility or service company, who connives with or permits the other
offender to commit the violation.
Theft of electricity can be effected even without illegal or unauthorized
installations of any kind by, for instance, any of the following means:
1) Turning back the dials of the electric meter;
2) Fixing the electric meter in such a manner that it will not
register the actual electric consumption;
3) Under reading of electric consumption; and
4) Tightening screw of rotary blades to slow down rotation of the
same. (People vs. Relova, 148 SCRA 292)

Theft is not a continuing offense.

The American rule that larceny is a continuing offense does not
apply to theft because "carrying away," which is one of the characteristics
of larceny, is not an essential ingredient of theft. (Duran, et al. vs. Tan,
et al., 85 Phil. 476) Thus, the theft of large cattle in Gapan, N u e v a Ecija,
was consummated in that municipality and the Court of First Instance of
Pampanga to which province the large cattle w a s taken by the thief had no
jurisdiction over the offense. The Court of First Instance of N u e v a Ecija had
jurisdiction over the offense. (People vs. Mercado, 65 Phil. 665)

748
 PENALTIES FOR THEFT Art. 309

Art. 309. Penalties. — A n y p e r s o n g u i l t y o f t h e f t s h a l l b e

p u n i s h e d by:

1. T h e p e n a l t y o f prision mayor i n i t s m i n i m u m a n d
1
m e d i u m periods, if the value of the thing stolen is more than
12,000 p e s o s b u t d o e s n o t e x c e e d 22,000 p e s o s ; b u t i f t h e v a l u e
of the thing stolen exceeds the latter amount, the penalty
shall be the m a x i m u m period of the one prescribed in this
paragraph and one year of each additional ten thousand
pesos, but the total of the penalty w h i c h m a y be imposed shall
not exceed twenty years. In such cases, and in connection
w i t h t h e a c c e s s o r y p e n a l t i e s w h i c h m a y b e i m p o s e d a n d for
the purpose of the other provisions of this Code, the penalty
s h a l l b e t e r m e d prision mayor o r reclusion temporal, a s t h e
case may be.
2. T h e p e n a l t y o f prision correccional i n i t s m e d i u m
2
and m a x i m u m periods, if the value of the property stolen is
m o r e t h a n 6,000 p e s o s b u t d o e s n o t e x c e e d 12,000 p e s o s .
3. T h e p e n a l t y o f prision correccional i n i t s m i n i m u m
3
and m e d i u m periods, if the value of the property stolen is
m o r e t h a n 200 p e s o s b u t d o e s n o t e x c e e d 6,000 p e s o s .
4. Arresto mayor in its medium period t o prision
correccional i n i t s m i n i m u m p e r i o d ,
if t h e value of t h e 4

property stolen is o v e r 50 p e s o s b u t d o e s not e x c e e d 200

pesos.
3
5. Arresto mayor i n i t s f u l l e x t e n t , if s u c h v a l u e is o v e r
5 pesos but does not exceed 50 pesos.
6
6. Arresto mayor i n i t s m i n i m u m a n d m e d i u m p e r i o d s ,
if s u c h v a l u e d o e s n o t e x c e e d five p e s o s .
7. Arresto menor o r a f i n e n o t e x c e e d i n g 2 0 0 p e s o s , i f
the theft is committed u n d e r the circumstances enumerated
in paragraph 3 of the next preceding article and the value of

•See Appendix "A," Table of Penalties, No. 23.

2
See Appendix "A," Table of Penalties, No. 15.
3
See Appendix "A," Table of Penalties, No. 14.
"See Appendix "A," Table of Penalties, No. 7.
5
See Appendix "A," Table of Penalties, No. 1.
6
S e e A p p e n d i x "A," T a b l e of Penalties, No. 5.

749
 Art. 309 PENALTIES FOR THEFT

the thing stolen does not exceed 5 pesos. If such value exceeds
said amount, the provisions of any of the five preceding
subdivisions shall be made applicable.
7
8. Arresto menor in its minimum period or a fine not
exceeding 50 pesos, w h e n the value of the thing stolen is not
over 5 pesos, and the offender shall have acted under t h e
impulse of hunger, poverty, or the difficulty of earning a
livelihood for the support of himself or his family.

Basis of penalty in theft.

The basis of the penalty in theft is (1) the value of the thing stolen,
and in some cases (2) the value and also the nature of the property taken,
or (3) the circumstances or causes that impelled the culprit to commit the
crime.
When the offender, having entered an inclosed estate or a field where
trespass is forbidden or which belongs to another and without the consent
of the owner, shall hunt or fish upon the same or shall gather fruits, cereals,
or other forest or farm products and the value of the thing stolen does not
exceed P5.00 (Art. 309, par. 7), or w h e n the offender shall have acted under
the impulse of hunger, poverty, or the difficulty of earning a livelihood for
the support of himself or his family and the value of the thing stolen is
not over P5.00 (Art. 309, par 8), the penalty is based not only on the value
of the property stolen, but also on the nature of the property and on the
circumstances and causes that impelled the culprit to commit the crime.

Offender is liable for theft of whole car taken to another place,

even if tires only are taken away.
The owner of an automobile left it parked on the street and while he
was absent, the car was stolen and taken to another part of the city where it
was stripped of three tires, after which the thieves abandoned the car which
was recovered the next day.

Are the thieves liable for the value of the whole car or only of the
tires?

The thieves are liable for the value of the whole car, because the
gist of the offense of larceny consists in the furtive taking and asportation
of property, animo lucrandi and with intent to deprive the owner of the
possession thereof. Since the thieves effectively deprived the owner of the

'From 1 day to 10 days.

750
 QUALIFIED THEFT Art. 310

possession of t h e entire automobile, t h e offense of larceny comprised the

whole car. The deprivation of the owner and the trespass upon his right of
possession were complete as to the entire car. (People vs. Carpio, 54 Phil
48)
Note: The rule will be different if the automobile w a s not taken away
from the place where it w a s parked and only the tires were removed. In this
case, the thieves will be liable only for the value of the tires.

When there is no evidence of value of property stolen.

If there is no available evidence to prove it or that the prosecution fails
to prove it, the court should impose the m i n i m u m penalty corresponding to
theft involving the value of P5.00. (People vs. Reyes, G.R. No. 38901, Oct.
2, 1933)
The court may also take judicial notice of its value in the proper cases,
as in the case of jeep which h a s at least a value of P1,000. (People vs. Dela
Cruz, 43 O.G. 3206)

When the resulting penalty for the accessory in theft has no medium
period, the court can impose the penalty which is favorable to the
accused.
When after lowering the penalty for theft by two degrees, the resulting
penalty is destierro in its m a x i m u m period to arresto mayor in its minimum
period, there being no medium or middle ground between the two penalties,
the court can impose either one or the other, but one month and one day of
arresto mayor is preferable, it being more favorable to t h e accused. (Cristobal
vs. People, 84 Phil. 473)

A r t . 3 1 0 . Qualified theft. — T h e c r i m e o f t h e f t s h a l l b e
punished by the penalties next higher by two degrees than
t h o s e respectively specified in t h e n e x t p r e c e d i n g article,
if committed by a domestic servant, or with grave abuse of
confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the
p r e m i s e s of a p l a n t a t i o n , fish t a k e n f r o m a fishpond or fishery
or if property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular
a c c i d e n t o r c i v i l d i s t u r b a n c e . (As amended by Batas Pambansa
Big. 71, approved May 1,1980)

751
 Art. 310 QUALIFIED THEFT

Theft is qualified —
1. If the theft is committed by a domestic servant.
2. If the theft is committed with grave abuse of confidence.
3. If the property stolen is a (a) motor vehicle, (b) mail matter, or (c) large
cattle.
4. If the property stolen consists of coconuts taken from the premises of
a plantation.
5. If the property stolen is fish taken from a fishpond or fishery.
6. If property is taken on the occasion of fire, earthquake, typhoon,
volcanic eruption, or any other calamity, vehicular accident or civil
disturbance.

Penalty is t w o d e g r e e s higher.
The penalties for qualified theft are now next higher by two degrees
than those respectively specified in the next preceding article. (Art. 310, as
amended)

Theft by d o m e s t i c s e r v a n t is a l w a y s qualified.
When the offender is a domestic servant, it is not necessary to show
that he committed the crime with grave abuse of confidence. The phrase
"with grave abuse of confidence" is separated by the word "or" from the term
"domestic servant" in Art. 310.
Theft by a domestic servant is illustrated in the case of a house boy
who stole P42.50 belonging to his master. (People vs. Evangelista, 70 Phil.
122)

The abuse of confidence must be grave.

Note the word "grave" describing "abuse of confidence" in the second
kind of qualified theft. There m u s t be allegation in the information and
proof of a relation, by reason of dependence, guardianship or vigilance,
between the accused and the offended party, that h a s created a high degree
of confidence between them, which the accused abused. (See People vs. Koc
Song, 63 Phil. 369)
An example of theft committed with grave abuse of confidence is that
where the accused who w a s permitted to sleep in the house of the offended
party out of charity, stole the latter's money in that house. (Mariano vs.
People, 68 Phil. 724, People vs. Lingat, 40 O.G., Supp. 3, 7)
The fact that the accused w a s living in the house of the offended party,
who had sheltered him out of charity, when he took the money belonging

752
 QUALIFIED THEFT Art. 310

to his protector, aggravates the crime committed by him, inasmuch as he

gravely abused the confidence which the owner of the house reposed in him
upon permitting him, out of charity, to live therein, stifling the sentiment
of gratitude awakened in his bosom by his benefactor's charitable act. It
is not necessary that the accused asked for shelter for charity's sake. The
grave abuse of confidence need not be premeditated. Its presence in the
commission of theft is sufficient. (People vs. Syou Hu, 65 Phil. 270)

Where the accused did not act with grave abuse of confidence.
Where the accused had taken advantage of his position in committing
the crime of theft but did not act with grave abuse of confidence because his
employer had never given h i m the possession of the machines involved or
allowed him to take hold of them, and it does not appear that the former had
any special confidence in him, the accused cannot be convicted of qualified
theft. (People vs. Maglaya, 30 SCRA 606)

Theft by housemate is not always qualified.

But theft by housemate is not always qualified, because while this fact
constitutes a certain abuse of confidence, since living together under the
s a m e roof engenders some confidence, it is not necessarily grave. (People vs.
Koc Song, 63 Phil. 369)
The fact of living together in the same house may be accidental and
the goods stolen might not have been entrusted to the custody or vigilance of
the accused. (People vs. De la Cruz, 82 Phil. 388)

Theft by laborer is not qualified theft.

The mere circumstance that the accused worked as a laborer in the
place where the theft w a s committed, does not suffice to create the relation
of confidence and intimacy that the law requires. Theft by laborer is only
simple theft. (People vs. Celis, 76 Phil. 369)

Theft by truck driver or by shepherd or by one who had access to

the place where the stolen property is kept is qualified theft.
A truck driver who takes the load of his truck, or a shepherd who
takes away and converts to his own use sheep under his care, is guilty of
qualified theft (with grave abuse of confidence), not estafa. (Decisions of
Sup. Ct. of Spain, July 14, 1904 and October 24, 1904)
The truck driver who took and sold part of the gasoline requisitioned
for the use of the truck by its owner, through said driver, is guilty of qualified
theft of the gasoline taken. (People vs. Batoon, C.A., 55 O.G. 1388)

753
 Art. 310 QUALIFIED THEFT

The accused who smuggled radio tubes from a signal depot where he
was working as a radio technician and, as such, had access to the place where
were kept various items essential for repair and maintenance of radios, and
sold radio tubes, is guilty of qualified theft. (See People vs. Jimenez, CA-
G.R. No. 12094R, Jan. 29, 1955)
Security guards who steal from a bonded warehouse where they are
hired to watch commit the crime of qualified theft (with grave abuse of
confidence), even though they are hired and paid by the warehousing firm
and not by the owner of the goods stolen. (People vs. Regamit, C.A., 72, O.G.
119)

Theft of any material, spare part, product or article by employees

and laborers is heavily punished.
Any employee or laborer who shall steal any material, spare part,
product or article that he is working on, using or producing shall, upon
conviction, be punished with imprisonment ranging from prision correccional
to prision mayor.
All laws inconsistent herewith are hereby repealed or modified
accordingly, unless the same provide a heavier penalty. (Presidential Decree
No. 133, which took effect on February 20, 1973)
The clear import of Presidential Decree No. 133 on the basis of its
recitals is to eradicate "graft and corruption in society, and promote the
economic and social welfare of the people" by placing a strong deterrent on
workers and laborers from sabotaging the productive efforts of the industry
where they were employed through the imposition of heavier penalties for
the theft of any material, spare part, product, or article that he is working
on, using or producing." Hence, to qualify the offense and to justify the
imposition of the heavier penalty prescribed by Presidential Decree No. 133,
it is essential and necessary to aver in the body of the information that the
articles stolen were materials or products which the accused w a s "working
on, using or producing." And a s t a t e m e n t in the preamble of the information
that the accused is charged with the crime of simple theft "in relation to
Presidential Decree No. 133," is insufficient for the purpose envisioned by
the constitutional guarantee that t h e accused should be informed of the
nature and cause of the accusation against him, considering that it is well-
stated that the real nature of the criminal charge is determined not from
the caption or preamble of the information nor from the specification of the
provision of law alleged to have been violated, they being conclusions of law,
but by the actual recital in the complaint or information. (Matilde, Jr. vs.
Jabson, 72 O.G. 3157)

754
 QUALIFIED THEFT Art. 310

Use of safe combination learned by confidential clerk is a grave

abuse of confidence.
The accused w a s a stenographer and confidential clerk of the offended
party. In drying the ink with which the combination numbers of the safe
were written, a new blotter w a s used by the offended party, from which the
accused learned the turns of the safe combination. He opened the safe and
took the money therefrom. Held: Qualified theft. (People vs. Valdellon, 46
Phil. 245)

Taking money in his possession by receiving teller of bank is

qualified theft.
A receiving teller of a bank, taking advantage of his position,
appropriated the amount of P33,965.45 which he had in his possession.
Held: Qualified theft because the possession of the defendant as receiving
teller w a s the possession of the bank, as he had only the physical, not the
juridical, possession of the money. There w a s grave abuse of confidence.
(People vs. Locson, 67 Phil. 325)

The confidence gravely abused must be that existing between the

offended party and the offender.
The accused, who w a s a typist of the Provincial Government of Samar,
asked the watchman of the building for the key to the door of the session
hall in order to use a typewriter. Having received the key, the accused went
to the session hall, took and carried away a typewriter, and later sold the
same. It was contended by the prosecution that the accused committed
qualified theft, because the watchman reposed confidence in him and he
gravely abused it.
Held: The offended party in this case was the Provincial Government
of Samar, not the watchman. The confidence contemplated in Art. 310
is that existing between the offended party and the offender. (People vs.
Cabahug, C.A., 48 O.G. 2818)

Industrial partner is not liable for qualified theft.

An industrial partner who sells personal property acquired with funds
supplied by the capitalist partner, and who is responsible therefor in case of
loss, has, in legal contemplation, both material and juridical possession of
the property, and may not be held liable for qualified theft by reason of said
sale. (In pari materia: U.S. vs. Reyes, 6 Phil. 441, 442; People vs. Tan Tay
C u a n , 5 7 O.G. 6964)

755
 Art. 310 QUALIFIED THEFT

The novation theory applies only when there is contractual relation-

ship between the accused and the complainant.
The accused was the private secretary of the complainant. The
relationship between the accused and the complainant was so intimate and
confidential that the latter used to send to the former, sums of money to be
deposited in his (complainant's) current accounts with the Prudential Bank.
It was in the discharge of this duty that the accused betrayed the confidence
reposed on him by the complainant by retaining for his personal use, part of
the money entrusted to him. Held: The accused is guilty of qualified theft.
Making capital of the acceptance by complainant of properties
belonging to the accused and his relatives allegedly assigned to the former
for the settlement of his obligations, the accused claims that there w a s
novation of the relationship between him and the said complainant, resulting
in the obliteration or extinction of his criminal liability. This argument is
anchored on the alleged recognition by this Court of the novation theory
(to extinguish criminal liability) in the case of People vs. Nery. Reliance
on the Nery case, in support of the contention that the acceptance by the
complainant of payment converted the liability of the accused into a civil
obligation or else that it estopped said complainant from proceeding with
the prosecution of the case, is misplaced and unwarranted. Firstly, in the
Nery case, there was contractual relationship between the parties that
can be validly novated by the settlement of the obligation of the offender.
Whatever was said in that case, therefore, cannot be invoked in the present
case where no contractual relationship or bilateral agreement, which can be
modified or altered by the parties, is involved. (People vs. Tanjuatco, G.R.
No. L-23924, April 29, 1968)

Theft of motor vehicle.

The term "motor vehicle" has been defined by statute as including all
vehicles propelled by power, other than muscular power. (See Law Dictionary
by Ballentine, 1948 Edition, p. 837) The term includes automobile, jeep or
jeepney, motorcycle and even scooter.

When the accused considered the deed of sale a sham and he had
intent to gain, his absconding with the jeep is qualified theft.
The accused, using a fictitious n a m e and posing as a buyer of the jeep of
the offended party, haggled about the price and finally settled for P4,000.00.
The accused persuaded the offended party to have the required deed of sale
prepared and the registration certificate transferred to his name. The deed of
sale was executed by the offended party and a certificate of registration was
issued in favor of the accused. The offended party delivered the papers and

756
 QUALIFIED THEFT Art. 310

the jeep to the accused, without having received the amount of P4.000.00.
The accused absconded with the jeep.
Held: The accused underscores the completeness of the sale — there
w a s the notarized deed and actual delivery. To give to that deed and
possession, the value ascribed, in our opinion, is to sanction a tour de
force. It takes mental gymnastics to withdraw this from the compass of
the crime of theft. For, we cannot say that the deed and the possession
conveyed ownership upon the accused without blinking at the fact that they
were nothing more than part and parcel of his modus operandi. Really, the
accused never intended to genuinely enter into the transaction of purchase
and sale. To him, that deed of sale w a s a sham. He cannot now cling to
the written covenants therein in furtherance of his nefarious purpose. To
uphold his position would be to create a breach of the rule — Fraus et jus
nunquam cohabitant.

The transaction w a s on a cash-and-carry basis. When the offended

party parted with the physical possession of the jeep, he did not intend to
transfer juridical possession thereof. The accused himself told complainant
that he would take the jeep for a test; that if the condition w a s unsatisfactory,
he would return the same; and that in the meantime, complainant could go
back to the hospital in B a l m e s Street. In this posture, we say that the accused
received possession of the jeep fraudulently, that is, with intent of gain, as
a m e a n s of converting it to his own use. The fraud in legal contemplation
supplied the place of trespass in the taking and such conversion related
back and made the taking and conversion larceny. (People vs. Tiongson.,
C.A., 59 O.G. 4523-4524)

When the purpose of taking the car is to destroy by burning it, the
crime is arson.
Appellant had a sufficient motive to burn the car because his request
to borrow the car was refused by Rojas shortly before the incident in
question, and that must have impelled him to act out of hatred and revenge
against Rojas. In fact, it was on account of Rojas' refusal to lend him the car
that appellant thereafter refused to talk to Rojas.
Appellant had no intention of acquiring the car for himself or
of subjecting it to his control and dominion or of disposing of it for gain
or profit. Instead, Solis took it with the apparent intent of damaging or
destroying it as shown by the fact that after running away with the vehicle,
he immediately set it afire.
The antecedent occurrence which preceded the actual taking away of
the car as above stated, points out the motive for the act. It is, therefore,
clear that the accused never meant to appropriate it for himself nor to derive
any profit, pleasure or benefit from it. The act of the accused in moving

757
 Art. 310 QUALIFIED THEFT

the car to a certain distance undoubtedly was for no other purpose than
to prevent or delay immediate discovery of the act to be done by him, thus
avoiding his being identified while he was near the place where the crime
was committed and likewise prevent immediate assistance being rendered
by the authorities.
The crime committed by the appellant is not qualified theft but arson
under the provisions of Article 321, paragraph (2), subsection (b), and
paragraph (3), subsection (a). It is not malicious mischief. (People vs. Solis,
et al., C.A., 64 O.G. 11261-11262)

Theft of motor vehicle is punished under Rep. Act No. 6539.

Section 2 of R.A. 6539, the Anti-Carnapping Act of 1992, as amended
by R.A. No. 7659, defines the crime of carnapping as the taking, with intent
to gain, of a motor vehicle belonging to another without the latter's consent,
or by means of violence against or intimidation of persons, or by using force
upon things. It becomes qualified w h e n in the course of the commission or on
occasion of the carnapping, the owner, driver or occupant of the carnapped
vehicle is killed or raped. When the carnapping is qualified, the penalty
imposable is reclusion perpetua to death.
Example: Where accused-appellant and his companions shot the driver
of the tricycle resulting in his death, abandoned h i m and took possession
of the vehicle, the crime committed is qualified carnapping. (People vs.
Lobitania, Sept. 5, 2002)

The unlawful taking of motor vehicles is now covered by the anti-

carnapping law, and not by the provisions on qualified theft or
robbery.
There is no arguing that the anti-carnapping law is a special law,
different from the crime of robbery and theft included in the Revised Penal
Code. It particularly addresses the taking, with intent to gain, of a motor
vehicle belonging to another without the latter's consent, or by m e a n s of
violence against or intimidation of persons, or by using force upon things.
But a careful comparison of this special law with the crimes of robbery and
theft readily reveals their common features and characteristics, to wit:
unlawful taking, intent to gain, and that personal property belonging to
another is taken without the latter's consent. However, the anti-carnapping
law particularly deals with the theft and robbery of motor vehicles. Hence a
motor vehicle is said to have been carnapped w h e n it h a s been taken, with
intent to gain, without the owner's consent, whether the taking w a s done
with or without the use of force upon things. Without the anti-carnapping
law, such unlawful taking of a motor vehicle would fall within the purview

758
 QUALIFIED THEFT Art. 310

of either theft or robbery which w a s certainly the case before the enactment
of said statute. (People vs. Lobitania, 388 SCRA 417, 432 [2002]- People vs
Tan, 323 SCRA 30, 39 [2000]).

Theft of motor vehicle by the person who received it.

Where the accused w a s entrusted by its owner with a passenger
jeepney under the so called "boundary system", that is, the accused to
use the vehicle for transporting passengers and to pay the owner thereof
P10.00 a day, the subsequent sale of the jeepney to another by the accused
constitutes the crime of qualified theft. The reason for this ruling is that
w h e n the passenger jeepney is operated as a public utility, the accused could
not be considered a lessee thereof, the Rules and Regulations of the Public
Service Commission prohibiting the lease of such vehicle by the operator to
another person. (People vs. Isaac, 96 Phil. 931)
But w h e n the motor vehicle is not operated as a public utility and the
same is leased by the owner to the accused who sold the same, the crime
committed is estafa, not qualified theft. (People vs. Noveno, et al., CA.., 46
O.G. 1637) Reason: The accused received the motor vehicle under a contract
of lease.

If the property stolen is mail matter.

What makes the theft of mail matter qualified is the fact that the
subject thereof is mail matter, regardless of whether the offender is a postal
employee or a private individual. (Marcelo vs. Sandiganbayan, G.R. No.
109242, Jan. 26, 1999)
The clerk in charge of the registry section of the Bureau of Posts,
with the duties, among others, to receive packages from the clerk in the
same section charged with the duty of opening sacks containing registered
packages and letters of value coming into that section, took from a package,
addressed to the Hongkong and Shanghai Banking Corporation of Manila,
diamonds to the value of P27.548.75.
Held: The crime committed is qualified theft, the property stolen being
mail matter. (People vs. Manalo and Atienza, 46 Phil. 573)
But a postmaster, to whom a letter containing postal money order was
delivered to be forwarded by registered mail, who opened it and abstracted
the postal money order enclosed therein, was held guilty of faithlessness in
the custody of documents. (Art. 226; U.S. vs. Gorospe, 31 Phil. 285)
If the person who took the letter containing postal money order is a
private individual, the crime would be qualified theft, the property taken
being a mail matter.

759
 Art. 310 QUALIFIED THEFT

Is it qualified theft if the mail matter is taken from the possession

of the addressee?
The law is silent on this point. All that it says is, "if the property
stolen is x x x mail matter."

Theft of large cattle.

The word "cattle" is denned as including horses, asses, mules, sheep,
goats and swine. (See Law Dictionary by Ballentine, 1948 Edition, p. 196)
In this jurisdiction, the term "large cattle" includes horses (U.S. vs.
Mauhay, 31 Phil. 513), cows (People vs. Bangay, C.A., 40 O.G. 772), bulls
(U.S. vs. Billedo, 83 Phil. 574), and carabaos. (U.S. vs. S a n g Kupang, 36
Phil. 348; People vs. Magbanua, 77 Phil. 79)
Act No. 2030, which amended Articles 503, 508, 512 and 520 of the
Old Penal Code regarding theft of large cattle, provides that for purposes
of that law, the term "large cattle" includes "carabaos, horses, mules, asses,
and all members of the bovine family." According to the dictionary, the word
"bovine" refers to animals related to or resembling oxen or cows. To include
goats in the term "large cattle" would render meaningless the adjective
"large." The law evidently has made a distinction between large cattle and
small cattle. (People vs. Nazareno, 70 SCRA 531)
To constitute the crime of qualified theft by taking large cattle, the
animal must be taken alive. Thus, killing a cow on the spot where it w a s
found and taking its meat is simple theft, because there w a s no taking of the
cow but only its meat. (People vs. Morillo, C.A., 40 O.G., Supp. 4, 107)
But if the offender, in killing the cow of another, acted with hatred or
revenge against the owner thereof, as w h e n the cow w a s killed because it
had entered and destroyed the plants of the offender, the crime committed
is not even simple theft, but malicious mischief under Art. 329. (People vs.
Valiente, et al., CA-G.R. No. 9442-R, Dec. 29, 1953)

Theft of large cattle by the person who received it.

When for the purpose of plowing his field, the accused borrowed
a carabao from its owner, but after using the same, he sold it to a third
person and spent the proceeds of the sale, the crime committed is estafa, not
qualified theft. The reason for this opinion is that the accused received the
carabao under the contract of commodatum. The accused had the juridical
possession of the animal when he sold it.
But the herdsman who slaughtered one of the cows under his care
and took the meat thereof is guilty of qualified theft, because he had merely
the physical possession of the cow, the legal possession thereof being in the
owner. (People vs. Bangay, C.A., 40 O.G. 772)

760
 QUALIFIED THEFT
Anti-Cattle Rustling Law of 1974

Taking at the same time several cows is only one crime.

Taking at the same time thirteen cows belonging to different owners
is only one crime of qualified theft, because the intention as well as the
criminal act of the accused is not susceptible of division. (People vs. Tumlos,
67 Phil. 320)

ANTI-CATTLE RUSTLING LAW OF 1974

(Presidential Decree No. 533)
Cattle rustling i s t h e t a k i n g a w a y b y a n y m e a n s , m e t h o d
or scheme, without the consent of the owner/raiser, of any
o f t h e a n i m a l s (classified a s l a r g e cattle) w h e t h e r o r n o t for
profit o r gain, o r w h e t h e r c o m m i t t e d w i t h o r w i t h o u t v i o l e n c e
against or intimidation of any person or force upon things. It
includes the killing of large cattle, or taking its m e a t or hide
without the consent of the owner/raiser.
Presumption of cattle rustling. — E v e r y p e r s o n h a v i n g i n
his possession, control or c u s t o d y of large cattle shall, u p o n
demand by competent authorities, exhibit the documents
prescribed in the preceding sections. Failure to exhibit the
r e q u i r e d d o c u m e n t s s h a l l b e prima facie e v i d e n c e t h a t t h e
large cattle in his possession, control or custody are the
fruits of the crime of cattle rustling.
Penal provisions. — A n y p e r s o n c o n v i c t e d o f c a t t l e r u s t -
ling as herein d e n n e d shall, irrespective of the value of the
l a r g e c a t t l e i n v o l v e d , b e p u n i s h e d b y prision mayor i n i t s
m a x i m u m p e r i o d t o reclusion temporal i n i t s m e d i u m p e r i o d
if the offense is committed without violence against or
intimidation of persons or force u p o n things. If the offense is
committed with violence against or intimidation of persons
o r f o r c e u p o n t h i n g s , t h e p e n a l t y o f reclusion temporal i n i t s
m a x i m u m p e r i o d t o reclusion perpetua s h a l l b e i m p o s e d . I f
a p e r s o n is seriously injured or killed as a result or on the
occasion of the commission of cattle rustling, the penalty of
reclusion perpetua t o d e a t h s h a l l b e i m p o s e d .
W h e n t h e o f f e n d e r is a g o v e r n m e n t official or e m p l o y e e ,
he shall, in addition to the foregoing penalty, be disqualified
from voting or being voted upon any election/referendum
a n d f r o m h o l d i n g a n y p u b l i c office o r e m p l o y m e n t .

761
 QUALIFIED THEFT
Anti-Cattle Rustling Law of 1974

When the offender is an alien, he shall be deported imme-

diately upon the completion of the service of his sentence
without further proceedings.
Large cattle a s h e r e i n u s e d s h a l l i n c l u d e t h e c o w , c a r a b a o ,
horse, mule, ass, or other domesticated m e m b e r of the bovine
family.
Repealing clause. — T h e p r o v i s i o n s o f A r t i c l e s 3 0 9 a n d 3 1 0
of Act No. 3815, o t h e r w i s e k n o w n as t h e R e v i s e d P e n a l Code,
as a m e n d e d , x x x, all l a w s , d e c r e e s , orders, i n s t r u c t i o n s , rules
and regulations which are inconsistent with this Decree
a r e h e r e b y r e p e a l e d o r m o d i f i e d a c c o r d i n g l y . (Presidential
Decree No. 583 which took effect on August 8,1974)

The coconuts must be taken from the premises of a plantation.

The stealing of coconuts when they are still in the tree or deposited
on the ground within the plantation is qualified theft. (People vs. Esmillo,
C.A., 40 O.G. Supp. 11, 111; Empelis vs. Intermediate Appellate Court, 132
SCRA 398) When the coconuts are stolen in any other place, it is simple
theft. Thus, when the accused took nine of the coconuts piled up in front of
the house of the offended party along the highway outside of the coconut
plantation, he is guilty of simple theft. (People vs. Esmillo, supra)

Reason for providing a heavier penalty for theft of coconut.

In the matter of theft of coconuts, the purpose of the heavier penalty
is to encourage and protect the development of the coconut industry as
one of the sources of our national economy. Unlike rice and sugar cane
farms where the range of vision is unobstructed, coconut groves cannot be
efficiently watched because of the nature of the growth of coconut trees; and
without a special measure to protect this kind of property, it will be, as it
has been in the past, the favorite resort of thieves. There is, therefore, some
reason for the special treatment accorded the industry. (People vs. Isnain,
85 Phil. 650-651)

The fish must be taken from the fishpond or fishery.

The term "fish" includes not only the fishes proper but also many
other aquatic animals like crabs, prawns, shrimps, lobsters, clams, mussels,
scallops, snails, oysters, and other mollusks or shell fish. (Phil. Annotated
Laws, Titles 31-36, 1956 Edition, p. 156)
"Fishery"is a place where fish are bred or caught (Webster's Dictionary).
The term "fishery" is also defined as "fishing grounds." (Phil. Annotated
Laws, idem.)

762
 ANTI-FENCING LAW
Presidential Decree No. 1612

Under the definition of the term "fishery" by Webster, is the fish corral
in the sea included? This being also an industry which cannot be efficiently
watched in view of its location, it would seem that the taking offish from the
fish corral is qualified theft.

Timber smuggling from, and illegal cutting of logs in, public forest
and forest reserves are punished as qualified theft by Presidential
Decree No. 330 (1973).
Section 1 . A n y p e r s o n , w h e t h e r n a t u r a l o r j u r i d i c a l who
directly or indirectly cuts, gathers, removes, or smuggles
timber, or other forest products, either from any of the
public forests, forest reserves and other kinds of public
forests, w h e t h e r u n d e r license or lease, or from any privately
o w n e d forest lands in violation of existing laws, rules and
r e g u l a t i o n s s h a l l b e g u i l t y o f t h e c r i m e o f qualified theft a s
d e n n e d a n d p e n a l i z e d u n d e r Articles 308, 309 a n d 310 of
t h e R e v i s e d P e n a l C o d e ; Provided, T h a t i f t h e o f f e n d e r i s a
c o r p o r a t i o n , firm, p a r t n e r s h i p or association, the penalty
shall b e i m p o s e d u p o n t h e guilty officer o r officers, a s t h e case
m a y be, o f t h e c o r p o r a t i o n , firm, p a r t n e r s h i p o r association,
a n d if s u c h guilty officer or officers are aliens, in addition to
the penalty herein prescribed, he or they shall be deported
without further proceedings on the part of the Commission
of Immigration and Deportation.

Section 2 . A l l l a w s , r u l e s a n d r e g u l a t i o n s i n c o n s i s t e n t
herewith are hereby repealed or modified accordingly.
Section 3 . T h i s d e c r e e s h a l l t a k e e f f e c t i m m e d i a t e l y a f t e r
p u b l i c a t i o n i n t h e Official Gazette. ( P u b l i s h e d o n N o v e m b e r
12,1973)

ANTI-FENCING LAW
(Presidential Decree No. 1612)

S E C T I O N 1 . Title. — T h i s d e c r e e s h a l l b e k n o w n a s t h e
A n t i - F e n c i n g L a w o f 1979.
S E C . 2 . Definition of Terms. — T h e f o l l o w i n g t e r m s s h a l l
m e a n as follows:

763
 ANTI-FENCING LAW
Presidential Decree No. 1612

a. "Fencing" is the act of any person who, with intent

to gain for himself or for another, shall buy, receive, p o s s e s s ,
k e e p , a c q u i r e , c o n c e a l , s e l l o r d i s p o s e of, o r s h a l l b u y a n d
sell, o r i n a n y o t h e r m a n n e r d e a l i n a n y article, i t e m , o b j e c t
or anything of value which he knows, or should be known to
him, to have been derived from the proceeds of the crime of
robbery or theft.
b. "Fence" includes any person, firm, association,
corporation or partnership or other organization who/which
commits the act of fencing.
S E C . 3 . Penalties. — A n y p e r s o n g u i l t y o f f e n c i n g s h a l l
be punished as hereunder indicated:
a) T h e p e n a l t y o f prision mayor, i f t h e v a l u e o f t h e
property involved is more than P12,000 but not exceeding
P22,000; if the v a l u e of s u c h p r o p e r t y e x c e e d s t h e latter s u m ,
the penalty provided in this paragraph shall be imposed in
i t s m a x i m u m p e r i o d , a d d i n g (1) o n e y e a r f o r e a c h a d d i t i o n a l
P10,000, but the total penalty w h i c h m a y be i m p o s e d shall
not exceed twenty years. In such cases, the penalty shall
b e t e r m e d reclusion temporal a n d t h e a c c e s s o r y p e n a l t y
pertaining thereto provided in the Revised Penal Code shall
also be imposed.

b) T h e p e n a l t y o f prision correccional i n i t s m e d i u m
and maximum periods, if the value of the property robbed or
stolen is more than P6,000 but not exceeding P12,000.
c) T h e p e n a l t y o f prision correccional i n i t s m i n i m u m
and medium periods, if the value of the property involved is
more than P200 but not exceeding P6,000.
d) T h e p e n a l t y o f arresto mayor i n i t s m e d i u m p e r i o d
t o prision correccional i n i t s m i n i m u m p e r i o d , i f t h e v a l u e o f
property involved is over P60 but not exceeding P200.

e) T h e p e n a l t y o f arresto mayor i n i t s m e d i u m p e r i o d
if such value is over P5 but not exceeding P50.

f) T h e p e n a l t y o f arresto mayor i n i t s m i n i m u m p e r i o d ,
if such value does not exceed P5.

S E C . 4. Liability of Officials of Juridical Persons. — I f t h e

fence is a partnership, firm, corporation or association, the

764
 ANTI-FENCING LAW
Presidential Decree No. 1612

p r e s i d e n t o r t h e m a n a g e r o r a n y officer thereof w h o k n o w s
or should h a v e k n o w n the commission of the offense shall be
liable.

S E C . 5 . Presumption of Fencing. — M e r e p o s s e s s i o n o f
a n y good, article, item, object, or anything of value w h i c h
h a s b e e n t h e s u b j e c t o f r o b b e r y o r t h i e v e r y s h a l l b e prima
facie e v i d e n c e o f f e n c i n g .

S E C . 6. Clearance/Permit to Sell Used Secondhand

Articles. — F o r p u r p o s e s o f t h i s A c t , a l l s t o r e s , e s t a b l i s h m e n t s
or entities dealing in t h e b u y a n d sell of a n y good, article,
item, object or anything of value obtained from an unlicensed
d e a l e r or s u p p l i e r thereof, shall before offering t h e s a m e for
sale to the public, secure the necessary clearance or permit
from the station commander of the Integrated National
Police in the t o w n or city w h e r e such store, establishment or
entity is located. The Chief of Constabulary/Director General,
Integrated National Police shall promulgate such rules and
regulations to carry out the provisions of this section. Any
p e r s o n w h o fails t o s e c u r e t h e c l e a r a n c e o r p e r m i t required
by this section or w h o violates any of the provisions of the
rules and regulations promulgated thereunder shall upon
conviction be punished as fence.

2 M a r c h 1979

Fencing
Fencing is the act of any person who, with intent to gain for himself or
for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose
of, or shall buy and sell or in any other manner deal in any article, item,
object or anything of value which he knows, or should be known to him, to
have been derived from the proceeds of the crime of robbery or theft.

Elements:
1. The crime of robbery or theft has been committed.
2. The accused, who is not a principal or accomplice in the commission of
the crime of robbery or theft, buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner deals in
any article, item, object or anything of value, which has been derived
from the proceeds of the said crime.

765
 ANTI-FENCING LAW
Presidential Decree No. 1612

3. The accused knows or should have known that the said article, item,
object or anything of value has been derived from the proceeds of the
crime of robbery or theft.
4. There is, on the part of the accused, intent to gain for himself or
another. (Dizon-Pamintuan vs. People, 234 SCRA 63 [1994])

Presumption of fencing.
Mere possession of any good, article, item, object, or anything of
value which has been the subject of robbery or thievery shall be prima facie
evidence of fencing.

Clearance/Permit to Sell Secondhand Articles Required.

All stores, establishments or entities dealing in the buy and sell of any
good, article, item, object or anything of value obtained from an unlicensed
dealer or supplier thereof, shall before offering the s a m e for sale to the public,
secure the necessary clearance or permit from the station commander of the
Integrated National Police (now Philippine National Police) in the town or
city where such store, establishment or entity is located.

The crimes of robbery and theft, on the one hand, and fencing, on
the other, are separate and distinct offenses.
Before P.D. No. 1612, a fence could only be prosecuted for and held
liable as an accessory, as the term is denned in Article 19 of the Revised
Penal Code. The penalty applicable to an accessory is obviously light under
the rules prescribed in Articles 53, 55 and 57 of the Revised Penal Code,
subject to the qualification set forth in Article 60 thereof. Noting, however,
the reports from law enforcement agencies that "there is rampant robbery
and thievery of government and private properties" and that such robbery
and thievery have become profitable on the part of the lawless elements
because of the existence of ready buyers, commonly known as fence, of stolen
properties," P.D. No. 1612 w a s enacted to "impose heavy penalties on persons
who profit by the effects of the crimes of robbery and theft." Evidently, the
accessory in the crimes of robbery and theft could be prosecuted as such
under the Revised Penal Code or under P.D. No. 1612. However, in the
latter case, he ceases to be a mere accessory but becomes a principal in the
crime of fencing. Elsewise stated, the crimes of robbery and theft, on the one
hand, and fencing, on the other, are separate and distinct offenses. The state
may thus choose to prosecute him either under the Revised Penal Code or
P.D. No. 1612, although the preference for the latter would seem inevitable
considering that fencing is a malum prohibitum, and P.D. No. 1612 creates

766
 THEFT OF PROPERTY OF NATIONAL Art. 311
LIBRARY AND NATIONAL MUSEUM

a presumption of fencing and prescribes a higher penalty based on the value

of the property. (Dizon-Pamintuan vs. People, 234 SCRA 63 [1994])

Art. 311. Theft of the property of the National Library

and National Museum. — If t h e property stolen be any
property of t h e National Library or of t h e National Museum,
8
t h e penalty shall be arresto mayor or a fine ranging from
200 to 500 pesos, or both, u n l e s s a h i g h e r penalty should be
provided u n d e r o t h e r p r o v i s i o n s of this Code, in w h i c h case,
t h e offender shall be p u n i s h e d by s u c h higher penalty.

Theft of property on National Library and Museum has a fixed

penalty regardless of its value.
While the penalty for theft of other property depends on the value of
the property taken, under this article, the penalty is fix without regard to
the value of the property of the National Library or National Museum.
But if the crime is committed with grave abuse of confidence, the
penalty for qualified theft shall be imposed, because Art. 311 says: "unless a
higher penalty should be provided under other provisions of this Code."

'See Appendix "A," Table of Penalties, No. 1.

767
 Chapter Four
USURPATION

What are the crimes under usurpation?

They are:
1. Occupation of real property or usurpation of real rights in
property. (Art. 312)
2. Altering boundaries or landmarks. (Art. 313)

A r t . 3 1 2 . Occupation of real property or usurpation of real

rights in property. — A n y p e r s o n w h o , b y m e a n s o f v i o l e n c e
against or intimidation of persons, shall take possession of
any real property or shall u s u r p a n y real rights in property
belonging to another, in addition to t h e p e n a l t y i n c u r r e d for
the acts of violence executed by him, shall be punished by a
fine o f from 5 0 t o 100 p e r c e n t u m for t h e g a i n w h i c h h e shall
have obtained, but not less than 75 pesos.

If the value of the gain cannot be ascertained, a fine

from 200 to 500 pesos shall be imposed.

Acts punishable under Art. 312:

1. By taking possession of any real property belonging to another by
means of violence against or intimidation of persons.
2. By usurping any real rights in property belonging to another by m e a n s
of violence against or intimidation of persons.

Elements:
a. That the offender takes possession of any real property or usurps any
real rights in property.
b. That the real property or real rights belong to another.

768
 OCCUPATION OF REAL PROPERTY, ETC. Art. 312

c. That violence against or intimidation of persons is used by the offender

in occupying real property or usurping real rights in property.
d. That there is intent to gain.

The real property or real rights must belong to another.

If the defendant has shown that he was the owner of the land in
question and the offended party w a s a mere possessor, Art. 312 is not
applicable. (U.S. vs. Fuster, 2 Phil. 695) If in taking possession of the said
land, the defendant used violence or intimidation, the crime committed is
grave coercion.

Illustration of usurpation of real right in property.

The accused, who had lost the case in a cadastral proceeding, took
possession of the land adjudicated in favor of the offended party and
harvested the palay, by m e a n s of threats and intimidation. Held: Guilty of
usurpation of real right under Art. 312. (People vs. Calleja, CA-G.R. 43375,
Nov. 18, 1936)

There is only civil liability, if there is no violence or intimidation in

taking possession of real property.
Thus, if the accused took possession of the land of the offended party
through other means, such as strategy or stealth, during the absence of the
owner or of the person in charge of the property, there is only civil liability.
(People vs. Dimacutak, et al., C.A., 51 O.G. 1389)

Violence or intimidation must be the means used in occupying

real property or usurping real right belonging to another.
Art. 312 does not apply when the violence or intimidation took
place subsequent to the entry into the property, because the violence or
intimidation must be the means used in occupying real property or in
usurping real rights.
Thus, if the accused were already occupying the land belonging to
another, and when the administrator of the latter told them that the land
belonged to his principal, the accused told him that they would kill anyone
who would try to drive them away and threatened him with their bolos and
chased him away. The accused are not liable for usurpation of real property
under Art. 312. (People vs. Dimacutak, et al., supra)

769
 Art. 312 REPUBLIC ACT NO. 947

Art. 312 is not applicable to a case of open defiance of the writ of

execution issued in the forcible entry case.
The stubborn refusal of the accused to vacate the land and to deliver
possession of the same to the plaintiff, in open defiance of the writ of
execution issued in the forcible entry case, does not constitute the crime
of usurpation denned and punished in Article 312 of the Revised Penal
Code, because the accused did not secure possession of the land by means
of violence or intimidation. The refusal of the accused constitutes a distinct
offense, to wit, contempt of court, under the Rules of Court, punishable with
a fine not exceeding PI,000.00 or imprisonment not exceeding 6 months, or
both. (People vs. Leyson, et al., 57 O.G. 6635)

Criminal action for usurpation of real property, not a bar to civil

action for forcible entry.
Where a criminal action for usurpation of real property was filed
and was dismissed, and the accused therein is sued in a forcible entry case
involving the same real property, a motion to dismiss on the ground of bar
by former judgment cannot be sustained, for not only are the parties not
identical, but also are the causes of action different. (Pitargue vs. Sorilla,
92 Phil. 5)

"In addition to the penalty incurred for the acts of violence executed
by him."
Art. 312 does not provide the penalty of imprisonment for the crime
of occupation of real property or usurpation of real rights in property. The
penalty is only fine. However, the offender who m a y have inflicted physical
injuries in executing acts of violence shall suffer the penalty for physical
injuries also.

Distinguished from theft or robbery.

(a) While there is taking or asportation in theft or robbery, there is
occupation or usurpation in this crime.
(b) In theft or robbery, personal property is taken; in this crime, there is
real property or real right involved.
(c) In both crimes, there is intent to gain.

Republic Act No. 947 punishes entering or occupying public agricul-

tural land including public lands granted to private individuals.
It shall be unlawful for any person, corporation or association to enter
or occupy, through force, intimidation, threat, strategy or stealth, any public
agricultural land including such public lands as are granted to private

770
 ALTERING BOUNDARIES Art. 313

individuals under the provisions of the Public Land Act or any other laws
providing for the disposal of public agricultural lands in the Philippines, and
are duly covered by the corresponding applications required for the purpose,
notwithstanding the fact that title thereto still remains in the Government;
or for any person, natural or juridical, to instigate, induce or force another
to commit such acts. (Sec. 1, Rep. Act No. 947)
Any violation of the provisions of this Act shall be punished by a fine
of not exceeding one thousand pesos or imprisonment for not more than one
year, or by both such fine and imprisonment in the discretion of the court.
(Sec. 3, Rep. Act No. 947)

A r t . 3 1 3 . Altering boundaries or landmarks. — Any

person w h o shall alter the boundary marks or monuments of
towns, provinces, or estates, or any other marks intended to
designate the boundaries of the same, shall be punished by
arresto menor o r a f i n e n o t e x c e e d i n g 1 0 0 p e s o s , o r b o t h .

Elements:
1. That there be boundary marks or monuments of towns, provinces, or
estates, or any other marks intended to designate the boundaries of
the same.
2. That the offender alters said boundary marks.

Is intent to gain necessary under Art. 313?

Art. 313 does not seem to require it. Mere alteration of the boundary
marks or monuments intended to designate the boundaries of towns,
provinces or estate is punishable.
Fraudulent intent is not necessary for the crime to exist. (Guevara)
The offense consists in carrying out a felonious intent to usurp realty,
and this intent must be established as the moral element before the penalty
fixed in Art. 313 can be applied. (Albert)

Meaning of the word "alter."

The word alter has a general and indefinite meaning. Any alteration of
boundary marks is enough to constitute the material element of the crime.
Destruction of stone monument or taking it to another place, or removing a
fence, is altering. (Albert)

771
 Chapter Five
CULPABLE INSOLVENCY

Art. 314. Fraudulent insolvency. — Any p e r s o n w h o shall

abscond with his property to the prejudice of h i s creditors,
1
shall suffer the penalty of prision mayor if he be a merchant,
and the penalty of prision correccional in its m a x i m u m
2
period to prision mayor in its m e d i u m period, if he be not a
merchant.

Elements:
1. That the offender is a debtor; that is, he h a s obligations due and
payable.
2. That he absconds with his property.
3. That there be prejudice to his creditors.

Illustration of a violation of Art. 314.

Defendant was a merchant of good standing, but he became indebted
to several merchants in Cebu. Judgment w a s rendered against h i m and
execution issued. He owned several parcels of real property which he
transferred to another to place t h e m beyond the reach of his creditors.
The considerations in the deed of sale were all fictitious. Held: Fraudulent
insolvency made in fraud of creditors. (People vs. Tan Diong, 59 Phil. 537)

Actual prejudice, not intention alone, is required.

Hence, even if the debtor disposes of his property, unless it is shown
that such disposal has actually prejudiced his creditor, conviction will not
lie. Fraudulent concealment of property is not sufficient if the creditor has
some other property with which to satisfy his obligation. (People vs. Sy
Gesiong, 60 Phil. 614)

'See Appendix "A," Table of Penalties, No. 19.

2
See Appendix "A," Table of Penalties, No. 18.

772
 FRAUDULENT INSOLVENCY Art. 314

The mere circumstance that a person has disposed of his merchandise

by removing them from the place where they are kept would not necessarily
imply fraudulent insolvency which requires malice, especially so as in this
case where the defendant delivered part of the proceeds of the sale to his
creditor. (People vs. Guzman, C.A., 40 O.G. 2655)

Being a merchant is not an element of this offense.

If the accused is a merchant, a higher penalty shall be imposed.

Real property may be involved.

The word "abscond" does not require that the debtor should depart
and physically conceal his property. Hence, real property could be the
subject matter of fraudulent insolvency. (People vs. Chong Chuy Limgobo,
45 Phil. 372)

The person prejudiced must be the creditor of the offender.

As to Pastora Padla, it appears that she joined in the conveyances,
but the creditors who were defrauded were not her creditors, they being
the creditors of her husband, the merchant Tan Diong. The fact that she
participated in the making of the document executed by her husband does
not prove her complicity in the fraud. (People vs. Tan Diong, supra)

Distinguished from the Insolvency Law.

The Insolvency Law requires for its application that the criminal
act should have been committed after the institution of insolvency
proceedings.
Under the present article, there is no such requirement, and it is
not necessary that the defendant should have been adjudged bankrupt or
insolvent.
Hence, there is no inconsistency between this article and the Insolvency
Law.

773
 Chapter Six
SWINDLING AND OTHER DECEITS

Art. 315. Swindling (estafa). — Any person w h o shall

defraud another by any of the m e a n s m e n t i o n e d h e r e i n b e l o w
shall be punished by:
1st. The penalty of prision correccional in its m a x i m u m
1
period to prision mayor in its m i n i m u m period, if t h e
amount of the fraud is over 12,000 p e s o s but d o e s not e x c e e d
22,000 pesos; and if s u c h a m o u n t e x c e e d s t h e latter sum, the
penalty provided in this paragraph shall be i m p o s e d in its
maximum period, adding o n e year for e a c h additional 10,000
pesos; but the total penalty w h i c h m a y be i m p o s e d shall not
exceed t w e n t y years. In s u c h cases, a n d in c o n n e c t i o n w i t h
the accessory penalties w h i c h may be i m p o s e d a n d for t h e
purpose of the other provisions of this Code, t h e penalty
shall be termed prision mayor or reclusion temporal, as the
case may be;
2nd. The penalty of prision correccional in its m i n i m u m
2
and m e d i u m periods, if t h e a m o u n t of t h e fraud is over 6,000
pesos but does not e x c e e d 12,000 pesos;
3rd. The penalty of arresto mayor in its m a x i m u m period
3
to prision correccional in its m i n i m u m period, if s u c h a m o u n t
is over 200 p e s o s but d o e s not e x c e e d 6,000 pesos; a n d
4th. By arresto mayor in its m e d i u m a n d m a x i m u m
4
periods, if s u c h a m o u n t d o e s not e x c e e d 200 p e s o s , p r o v i d e d
that in the four c a s e s m e n t i o n e d , t h e fraud be c o m m i t t e d by
any of the following m e a n s :

'See Appendix "A," Table of Penalties, No. 17.

2
See Appendix "A," Table of Penalties, No. 14.
3
See Appendix "A," Table of Penalties, No. 8.
4
See Appendix "A," Table of Penalties, No. 6.

774
 SWINDLING OR ESTAFA Art. 315
4

With unfaithfulness or abuse of confidence, namely:

(a) By altering the substance, quantity, or quality of
anything of value w h i c h the offender shall deliver
by virtue of an obligation to do so, e v e n though
s u c h obligation be b a s e d on an immoral or illegal
consideration;

(b) By misappropriating or converting, to the prejudice

of another, money, goods or any other personal
property received by the offender in trust, or
on commission, or for administration, or under
any other obligation involving the duty to make
d e l i v e r y of, o r t o r e t u r n t h e s a m e , e v e n t h o u g h s u c h
obligation be totally or partially guaranteed by a
bond; or by denying having received such money,
goods, or other property;

(c) By taking u n d u e advantage of the signature of the

offended party in blank, and by writing any docu-
ment above such signature in blank, to the prejudice
of the offended party or any third person.
By m e a n s of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously
with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions;
or by means of other similar deceits.
b) By altering the quality, fineness, or weight of
anything pertaining to his art or business.
(c) By pretending to have bribed any Government
e m p l o y e e , w i t h o u t p r e j u d i c e t o t h e a c t i o n for
calumny, which the offended party may deem
proper to bring against the offender. In this case, the
offender shall be punished by the m a x i m u m period
of the penalty.
(d) By p o s t d a t i n g a check, or i s s u i n g a c h e c k in p a y m e n t
of an obligation w h e n the offender had no funds in
the bank, or his funds deposited therein were not
sufficient to cover the a m o u n t of the check. The

775
 Art. 315 SWINDLING OR ESTAFA

failure of the drawer of the check to deposit the

amount necessary to cover his check within three
(3) d a y s f r o m r e c e i p t o f n o t i c e f r o m t h e b a n k a n d /
or the payee or holder that said check has been
d i s h o n o r e d for lack or insufficiency of f u n d s shall
b e prima facie e v i d e n c e o f d e c e i t c o n s t i t u t i n g f a l s e
p r e t e n s e or f r a u d u l e n t a c t . (As amended by Rep. Act
No. 4885, approved June 17,1967)
(e) By obtaining a n y food, refreshment or accom-
modation at a hotel, inn, restaurant, boarding house,
lodging house, or apartment house and the like
without paying therefore, with intent to defraud
the proprietor or m a n a g e r thereof, or by obtaining
credit at a hotel, inn, restaurant, b o a r d i n g house,
lodging house, or apartment house by the use of any
false pretense, or by a b a n d o n i n g or surreptitiously
removing any part of his baggage from a hotel,
inn, restaurant, boarding house, lodging house,
or apartment h o u s e after obtaining credit, food,
refreshment, or accommodation therein without
p a y i n g for his food, refreshment, or a c c o m m o d a t i o n .
(As amended by Com. Act No. 157)
3. Through any of the following fraudulent means:
(a) By inducing another, by m e a n s of deceit, to sign
any document;

(b) By resorting to some fraudulent practice to insure

success in a g a m b l i n g game;

(c) By removing, concealing, or destroying, in whole or

i n part, a n y c o u r t r e c o r d , office files, d o c u m e n t , o r
any other papers.

Elements of estafa in general:

1. That the accused defrauded another (a) by abuse of confidence, or (b)
by means of deceit; and
2. That damage or prejudice capable of pecuniary estimation is caused to
the offended party or third person.

776
The first element covers the three different ways of committing
estafa under Art. 315.
Note that Art. 315 has three subdivisions classifying the different
forms of estafa according to the m e a n s by which the fraud is committed.
Thus, estafa is committed —
(a) with unfaithfulness or abuse of confidence;
(b) by means of false pretenses or fraudulent acts; or
(c) through fraudulent means.
The three ways of committing estafa under Art. 315 may be reduced
to two only. The first form under subdivision No. 1 is known as estafa with
abuse of confidence, and the second and third forms under subdivisions Nos.
2 and 3 cover estafa by means of deceit.

Deceit is not an essential requisite of estafa with abuse of confi-

dence.
"Deceit with intent to defraud" is not an essential requisite in cases
wherein the money or other personal property has been voluntarily entrusted
to the offender, without wrongdoing on his part in obtaining or receiving it.
It is true that it is sometimes said that "deception with intent to defraud"
is an essential requisite of the crime of estafa. But while this is true as to
estafas in general, it is not true of those estafas under consideration (Art.
315, subdivision 1, par. [b]), except in so far as the abuse of confidence in
misappropriating the funds or property after they have come to the hands
of the offender may be said to be a fraud upon the person injured thereby.
(U.S. vs. Pascual, 10 Phil. 621)
Note: It will be noted that "abuse of confidence" and "deceit" are
two different means of committing estafa under Art. 315. Where there is
fraudulent conversion or misappropriation of the property received in trust,
on commission, for administration, or under any other obligation involving
the duty to make delivery of or to return the same, deceit is not an essential
element of estafa.

The second element — the basis of the penalty.

It is necessary that the damage or prejudice be capable of pecuniary
estimation, because the amount of the damage or prejudice is the basis of
the penalty for estafa.
The first four paragraphs of Art. 315 fix the penalties for estafa
according to the amount of the fraud.

777
 Art. 315 BY ALTERING SUBSTANCE, QUALITY OR
QUANTITY OF THINGS TO BE DELIVERED

With unfaithfulness or abuse of confidence, namely:

By altering the substance, quantity, or quality of anything of value
which the offender shall deliver by virtue of an obligation to do so, e v e n
though such obligation be based on an immoral or illegal consideration.
(Art. 316, No. 1 [a])

Elements of estafa with unfaithfulness:

1. That the offender has an onerous obligation to deliver something of
value.
2. That he alters its substance, quantity, or quality.
3. That damage or prejudice is caused to another.

There must be an existing obligation to deliver something of value.

Under the provision of par. 1(a), Art. 315, the obligation to deliver
already existed, and the offender, on making the delivery, h a s altered the
substance, quantity or quality of the thing he delivered. (People vs. Gansai,
C.A., 61 O.G. 3603)

By virtue of an onerous obligation.

In estafa by altering the substance, quantity or quality of anything of
value which the offender delivers, the delivery of anything of value m u s t be
"by virtue of an onerous obligation to do so." (Albert)
Thus, if the thing delivered had not been fully or partially paid for
when it was received by the other party, the person m a k i n g the delivery
is not liable for estafa, even if there w a s an alteration of the substance,
quantity, or quality of the thing delivered as there w a s no d a m a g e caused.

Altering the substance, quality or quantity of the things to be deli-

vered.
1. Altering the substance.
Thus, where a person sold to another 1,000 tins on t h e assurance
that they contained opium, w h e n in fact only 16 tins contained opium
while the others contained only molasses, the crime of estafa under
this subsection w a s committed, because there w a s an alteration of t h e
substance — from opium, which he promised to deliver, to molasses
which w a s actually delivered. (People vs. Manansala, et al., 58 Phil.
796)

778
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315

Altering the substance may constitute violation of Pure Food Law.

When the fraud committed consists in the adulteration or mixing of
some extraneous substance in an article of food so as to lower its quality, it
may be a violation of the Pure Food Law.

2. Altering the quantity.

The accused pledged to the Compania de Tabacos 20,000 bales
of hemp, by declaring in an instrument that such number of bales was
actually in existence, the accused knowing that he had only 12,000
bales in the warehouse. The manager of the Compania de Tabacos,
trusting the apparent good faith of the accused, continued to advance
the latter, money and goods on account in the sum of P300,000. Held:
This is estafa by altering the quantity of the thing the accused promised
to deliver by virtue of an obligation to do so. (U.S. vs. Mendezona, 2
Phil. 353)
A person who, after having agreed to the sale of 100 cavans
of palay, and having received the payment therefor, delivers to the
purchaser 98 cavans only, is guilty of estafa for having altered the
quantity of the thing he is duty-bound to deliver. (Guevara)
3. Altering the quality.
A agreed to sell to B first class rice and received from B the
purchase price thereof. But w h e n the rice w a s delivered to B, it was
found to be a poor kind of rice. The damage consists in the difference
in value of the rice.

When there is no agreement as to the quality of the thing to be

delivered, the delivery of the thing not acceptable to the complainant
is not estafa.
Thus, in a case where the evidence does not show that there was an
agreement as to the quality of the ROTC and PMT insignias and name
plates which the accused bound themselves to make and deliver to the
complainant, and the insignias and name plates delivered by the accused
were not acceptable to the complainant, even if payment was made by the
latter, the accused are not guilty of estafa under Art. 315, par. 1(a), of the
Revised Penal Code. (People vs. Bastiana, et al., C.A., 54 O.G. 4300)

"Even though such obligation be based on an immoral or illegal

consideration."
By specific provision of paragraph (a) of subdivision No. 1, Art. 315,
the crime of estafa may arise even if the thing to be delivered, under the
obligation to deliver it, is not a subject of lawful commerce, such as opium.

779
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

Note the case of People vs. Manansala, et al., 58 Phil. 796, where the accused
was found guilty of estafa, even if the thing which he promised to deliver
was opium.

By misappropriating or converting, to the prejudice of another, money,

goods, or other personal property received by the offender in trust, or on
commission, or for administration, or under any other obligation involving
the duty to make delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying having received
such money, goods, or other property. (Art. 315, No. 1 [b])

Elements of estafa with abuse of confidence under subdivision

No. 1, par. (b), of Art. 315:
1. That money, goods, or other personal property be received by the
offender in trust, or on commission, or for administration, or under any
other obligation involving the duty to make delivery of, or to return,
the same;
2. That there be misappropriation or conversion of such money or
property by the offender, or denial on his part of such receipt;
3. That such misappropriation or conversion or denial is to the prejudice
of another; and
4. That there is a demand made by the offended party to the offender.
Note: The 4th element is not necessary w h e n there is evidence of
misappropriation of the goods by the defendant. (Tubb vs. People, et al., 101
Phil. 114)

Check is included in the word "money."

The distinction between the conversion of a check and the conversion
of cash in relation to the formal allegation in the information of conversion
of a specific sum of money is not material in estafa. First, a check, after all,
while not regarded as a legal tender, is normally accepted, under commercial
usage, as a substitute for cash. Furthermore, the credit represented by
it in stated monetary value is properly capable of appropriation. Second,
it is erroneous for the accused to a s s u m e that he w a s in receipt of the
complainant's money only from the time w h e n and at the place where he
cashed the check. Applying the principles of civil law on payments done
thru the use of bills of exchange, the delivery to the accused of the check
of an earlier date and at another place, had the effect, w h e n the s a m e was
subsequently cashed, of transferring as of that date and in that place, the

780
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

sum covered thereby from the drawer to the payee. This, although the change
from check to public notes took place at a later date and at another situs.
And third, the delivery by the complainant of the check and its acceptance
by the accused signified not merely the transfer to the accused of money
belonging to the complainant. It also marked, the creation of a fiduciary
relation between the parties. The existence of such relation either in the
form of a trust, commission or administration, is, of course, an essential
element of the crime of estafa by misappropriating or conversion. (Galvez
vs. Court of Appeals, 42 SCRA 278)

Money, goods or other personal property must be received by the

offender.
Note the first element of this form of estafa. The money, goods or other
personal property must be received by the offender. If the offender takes the
thing without the consent of the owner, the crime may be theft, not estafa.

Money, goods or other personal property must be received by the

offender under certain kinds of transaction transferring juridical
possession to him.
Paragraph (b) of subdivision No. 1 provides that the "money, goods,
or any other personal property" be "received by the offender in trust or on
commission, or for administration, or under any other obligation involving
the duty to make delivery of, or to return the same."
When the thing is received by the offender from the offended party
(1) in trust, or (2) on commission, or (3) for administration, the offender
acquires both material or physical possession and juridical possession of
the thing received.

Meaning of juridical possession.

Juridical possession means a possession which gives the transferee
a right over the thing which the transferee may set up even against the
owner.
The case of People vs. Noveno, et al., C.A., 46 O.G. 1637, illustrates the
meaning of juridical possession:
At about 6 o'clock in the morning of August 10, 1946, S and N, the
latter a former driver of M, went to the house of M for the purpose of hiring
his truck. It was agreed that upon receipt of the amount of P10.00, M would
let N drive his truck hired by S until noon of that day.
Held: During that period agreed upon in the contract for hire (from
the time S and N received the truck at 6 o'clock in the morning until noon of
that day) they could set up their possession as against the right to possession

781
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

of M, the owner of the truck. Pursuant to their agreement, therefore, M

delivered not only the physical but also the juridical possession of the truck
to both S and N.
(See also the cases of U.S. vs. Abad, 23 Phil. 504; U.S. vs. Ador Dionisio,
36 Phil. 141; and People vs. Dugan, C.A., 46 O.G. 3180)
An agent, unlike a servant or messenger, has both the physical and
juridical possession of the goods received in agency, or the proceeds thereof,
which takes the place of the goods after their sale by the agent. His duty to
turn over the proceeds of the agency depends upon his discharge, as well as
the result of the accounts between him and the principal; and he may set
up his right of possession as against that of the principal until the agency is
terminated. (Guzman vs. Court of Appeals, 99 Phil. 703)

Presumption as to kind of possession.

When the delivery of a chattel has not the effect of transferring
the juridical possession thereof, or title thereto, it is presumed that the
possession of, and title to, the thing so delivered remain in the owner. (U.S.
vs. De Vera, 43 Phil. 1001)

Illustration of estafa where the offender received the thing in trust,

on commission, or for administration:
1. The thing was received in trust:
The accused were t e n a n t s of the complaining witness. They
received from the sale of the abaca harvested by t h e m a sum of
money, including the one-half which belonged to the landlord under
the tenancy agreement. The accused were under obligation to deliver
to the landlord this half of the money. They, therefore, held it in trust
for him. But instead of turning it over to him, they appropriated it to
their own use and refused to give it to him, notwithstanding repeated
demands.

Held: It is not correct to say that the abaca in question w a s

not received by the accused from anybody but had been harvested by
them. What the accused are charged with having misappropriated is
the landlord's share of the purchase price which they received in trust
for him. (People vs. Carulasdulasan, et al., 95 Phil. 8)

Failure to turn over to the bank the proceeds of the sale of goods
covered by trust receipts is estafa.
A person who executed trust receipts and, despite demands by the
bank, failed either to turn over to the bank the proceeds of the sale of the

782
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

goods or to return said goods, if they were not sold, is guilty of having
violated the provisions of Art. 315, l-(b), of the Revised Penal Code.
The ownership of the merchandise continues to be vested in the
person who has advanced payment, until he has been paid in full, or if
the merchandise has already been sold, the proceeds of the sale should be
turned over to him by the importer or by his representative or successor in
interest. (PNB vs. Vda. de Hijos de Angel Jose, 63 Phil. 814-15; Samo vs.
People, et al, G.R. Nos. L-17603-04, May 3 1 , 1962)
Conversion by the importer of the goods covered by a trust receipt
constitutes estafa through misappropriation under Article 315(l)(b) of the
Revised Penal Code. (People vs. Chai Ho, 53 Phil. 874; Samo vs. People, 115
Phil. 346; Lee vs. Rodil, 175 SCRA 100)

PRESIDENTIAL DECREE NO. 115

XXX

S E C . 1 3 . Penalty clause. — T h e f a i l u r e o f a n e n t r u s t e e t o
turn over the proceeds of the sale of the goods, documents
or instruments covered by a trust receipt to the extent of
the a m o u n t o w i n g to the entruster or as appears in the trust
receipt or to return said goods, documents or instruments
if they were not sold or disposed of in accordance with the
t e r m s of the trust receipt shall constitute the crime of estafa,
punishable under the provisions of Article Three Hundred
a n d F i f t e e n , P a r a g r a p h O n e (b), o f A c t N u m b e r e d T h r e e
Thousand Eight Hundred and Fifteen, as amended, otherwise
k n o w n as the Revised Penal Code. If the violation or offense
is committed by a corporation, partnership, association or
otherjuridical entities, the penalty provided for in this Decree
shall b e i m p o s e d u p o n t h e directors, officers, e m p l o y e e s o r
o t h e r officials or p e r s o n s t h e r e i n r e s p o n s i b l e for t h e offense,
without prejudice to the civil liabilities arising from the
criminal offense.

XXX

S E C . 17. T h i s D e c r e e s h a l l t a k e e f f e c t i m m e d i a t e l y .
D o n e in the City of Manila, this 29th day of January, in
the year of Our Lord, nineteen h u n d r e d and seventy-three.

783
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

2. The thing was received on commission:

A received P0.25 from B with obligation to pay it as slaughter fee
to the municipal treasurer. A received some pork from C, promising to
pay P0.25, representing the cost of the pork, to the municipal treasurer
as slaughter fee in the name of C. A failed to make the payment for C
and B, and spent the money of B.
Held: (1) As to the P0.25 in cash received from B, there is estafa.
(2) As to his promise to pay P0.25 to the municipal treasurer in
consideration of some pork received from C, there is no estafa.
Reasons: (1) The title under which A received the P0.25 from B
was that of a commission consisting in the instruction to deliver the
same to the municipal treasurer.
(2) As regards the failure of A to pay to the treasurer the P0.25
representing the cost of the pork received from C, there is no estafa,
because the law says "money, goods, or any other personal property
received," under the obligation "to deliver the same." This m e a n s that
the thing received must be the same thing to be delivered, and not
another. (See U.S. vs. Figueroa, 22 Phil. 270)
Note: A did not receive any money from C to be delivered to the
treasurer. What A received from C w a s a kilo of pork.
3. The thing was received for administration:
Thus, if the administrator, appointed by the Court to administer
the estate of a deceased person, received money or other personal
property in such capacity, and misappropriated the s a m e for his
personal benefit, he is guilty of estafa.
Where the accused collected a s u m of money as rentals from the
different tenants of his employer, failed to account for and turn over
said amount to his employer, upon demand therefor, he is guilty of
estafa. (People vs. Benitez, 108 Phil. 920)

The phrase "or under any other obligation involving the duty to
make delivery of, or to return the same," includes quasi-contracts
and certain contracts of bailment.
In quasi-contracts, the person who receives the thing also acquires
juridical possession of the thing received.
In contracts of bailment, such as, contract of deposit, contract of lease
of personal property, commodatum, etc., the depositary or the lessee, or the
borrower acquires also juridical possession of the thing deposited with him,
or leased to him, or loaned to him.
These contracts require the return of the same thing received. (U.S.
vs. Clarin, 17 Phil. 86)

784
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

Illustrations of estafa where the offender received the thing under

a quasi-contract or contract of bailment.
1. The thing was received under a quasi-contract.
An interisland steamer received at Manila a shipment of 18
boxes of goods consigned to the accused. The boxes bore the marks
"Y.J.," letters presumably representing the initials of the accused.
In delivering the 18 boxes to the accused at Ibajay, Capiz, a box of
sinamay valued at P625, consigned to another Chinese bearing also
the marks "Y.J." w a s also delivered to the accused by mistake because
of the similarity of the marks. When informed of the mistake, the
accused denied that he had received the box of sinamay and declared
that he knew nothing whatever about it.
Held: The accused is guilty of estafa. He received the box of
sinamay under such circumstances as to give rise to an obligation to
return or make delivery of the same to the owner upon demand. (U.S.
vs. Yap Tian Jong, 34 Phil. 10)
2. The thing was received under a contract of bailment.
a. Under a contract of deposit.
The offended party deposited with the accused certificate
of Stock No. 517 as guaranty for the payment of certain shares
of "Crown Mines." When already in possession of the certificate
of Stock No. 517, the accused indorsed it to the Hongkong
Shanghai Banking Corporation as guaranty of his overdraft. As
a result, the offended party could not recover her certificate of
Stock No. 517 w h e n she paid the shares of "Crown Mines."
Held: Since the pledge (indorsing it as guaranty of his
overdraft) involves an act of ownership, the depositary who
pledges a thing in deposit u s e s it for a distinct purpose and
accordingly commits the crime of estafa. (People vs. Campos,
C.A., 40 O.G., Supp. 12, 7)
b. Under contract of lease of personal property.
The accused hired the truck of the offended party until
noon of the same day for the sum of P10.00. The truck was never
returned as it had been sold to a third person.
Held: Pursuant to their agreement, the offended party
delivered not only the material but also the juridical possession
of his truck to the accused. The accused are guilty of estafa, not
qualified theft. (People vs. Noveno, et al., C.A., supra)

785
 Art. 315 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

Distinguished from the case of People vs. Isaac. (96 Phil. 931)
The owner of a jeepney with license plate No. AC-2553,
hired the accused on a temporary basis and entrusted the vehicle
for a "pasada," that is to say, for transporting passengers for a
compensation, at the rate of P10.00 per day. His arrangement
with the owner was to turn in not all the fare collected, but only
a fixed sum known in the trade as "boundary." The accused sold
the jeepney.
Held: The accused had only substituted for the regular
driver of the jeepney operated as a public utility. He cannot
be considered a lessee of the jeepney, because it is ordained in
Section 26 of the Rules and Regulations of the Public Service
Commission that "no motor vehicle operator shall enter into any
kind of contract with any person if by the term thereof it allows
the use and operation of all or any of his equipment under a
fixed rental basis." In the eyes of the law then, the accused w a s
not a lessee but only an employee or agent of the owner, so that
his possession of the vehicle w a s only an extension of that of the
latter. The accused, not having the juridical possession of the
jeepney, committed qualified theft for disposing of it with intent
to gain and without the consent of the owner. (People vs. Isaac,
96 Phil. 931)
Note: In the case of People vs. Noveno, supra, the truck
was not operated as a regular passenger vehicle, subject to the
rules and regulations of the Public Service Commission which
prohibit the leasing of vehicles operated as a public utility.
c. Under a contract of commodatum.
A borrowed a book from B to be returned after two days.
After two days, in spite of repeated demands, A could not return
the book, because he had sold it. This is estafa, because in a
contract of commodatum, the borrower acquired the juridical
possession of the thing borrowed.
Note: Commodatum is a loan for use. In commodatum, the
bailor retains the ownership of the thing loaned.

The obligation to return or deliver the thing must be contractual

without transferring to the accused the ownership of the thing
received.
Art. 315, No. 1(b) is intended for the case of embezzlement by a bailee,
whose obligation to return or deliver the thing received is contractual.

786
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

But Art. 315, No. 1 (b) does not apply w h e n the contract between the
accused and the complainant has the effect of transferring to the accused
the ownership of the thing received.
Thus, w h e n the contract is a loan of money, the accused debtor cannot
be held liable for estafa for merely refusing to pay, or denying having
contracted, the debt. (U.S. vs. Ibanez, 19 Phil. 559) Loan of money is known
as mutuum. It is a loan for consumption and the ownership of the thing
loaned passes to the borrower.
When the accused had received a thing from the complainant, under a
contract of purchase and sale, and failed or refused to pay the price thereof,
he is not liable for estafa. (People vs. Gonora, C.A., 38 O.G. 3185)
In those two transactions, the accused did not receive the money or
thing under the "obligation involving the duty to make delivery of, or to
return, the same" money or thing.

When ownership of the thing is transferred to the person who has

received it, his failure to return it will give rise to civil liability only.
It is necessary to resort in m a n y cases to the provisions of the civil law
to determine in whom the ownership is vested.
Thus, when the contract under which the thing is received is one of
purchase and sale, even if the price is not paid, ownership is transferred to
the buyer upon the delivery of the thing to him. If the buyer sold the thing
and did not pay the price to the original owner, there is only civil liability.
The advance or part payment of the price of the thing sold, but not
yet delivered, becomes the property of the seller. If the thing sold is not
delivered and the advance or part payment of the price is not returned,
there is only civil liability. (People vs. Ma Su, 90 Phil. 706)

Provisions of the Civil Code.

Art. 1477. The ownership of the thing sold shall be transferred to the
vendee upon the actual or constructive delivery thereof.
Art. 1482. Whenever earnest money is given in a contract of sale, it
shall be considered as part of the price and as proof of the perfection of the
contract.

No "obligation involving the duty x x x to return the same."

In estafa with abuse of confidence under paragraph (b), subdivision
No. 1 of Art. 315, the very same thing received must be returned, if there is
an obligation to return it. If there is no obligation to return the very same

787
 Art. 3 1 5 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

thing received, because ownership is transferred, there is only civil liability.

(U.S. vs. Figueroa, 22 Phil. 270)

Illustrations:
The accused received a radio from the complainant to keep the same
for trial for five days at the termination of which he bound himself to
either return it or, if he desired to retain it, pay the initial sum of P90, and
the balance in installments. The accused never returned the radio to the
complainant.
Held: That as the accused chose to retain the radio set, the transaction,
theretofore indefinite, became automatically a sale. There is no estafa even
if for eight months the accused deliberately avoided paying anything at all.
(Sison vs. People, G.R. No. 48198 [1943])
In a contract for the sale of property on trial basis, retention by the
buyer of the property object of the sale without giving notice of rejection to
the owner after the expiration of the agreed trial period, passes ownership
of the property to him. His subsequent act of selling the property is but
the exercise of the right to dispose and does not make him liable for estafa
under Article 315, paragraph 1(b), of the Revised Penal Code. (People vs.
Joyce, C.A., 66 O.G. 10163)

When the transaction of purchase and sale fails, there is no estafa

if the accused refused to return the advance payment.

Esguerra vs. People

(G.R. No. L-14318, July 26, 1960)
Facts: It appears that the accused, upon representation t h a t he had
copras ready for delivery, took and received the s u m of P2.400 from the
complainant, but in spite of repeated demands, the said accused failed to
deliver the copra or return the amount received. Thus, an information for
estafa was filed against him.
Held: On the merits, there is reason to believe that the responsibility
of the accused is only civil in nature. The receipt signed by the accused
reads: "Received from x x x the s u m of P2.400 only representing advance
payment of 10,000 kilos of copra which I sold them and shall be delivered
in their bodega at Siain, P.I., on or before Jan. 3 1 , 1952." The language of
the receipt, together with the finding that the accused used to supply copra
not only to complainant but also to other exporters, clearly indicate that
the transaction was that of sale of copra for future delivery. Obviously, an
advance payment is subject to the disposal of the vendor. If the transaction
fails, the liability arising therefrom is of a civil and not of a criminal nature.
(See Abeto vs. People, 90 Phil. 581)

788
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Persona] Property Received

There is no estafa when the money or other personal property

received by the accused is not to be used for a particular purpose
or to be returned.

U.S. vs. Villareal

(27 Phil. 481)

Facts: The firm of Successors of C. Fressel & Co. w a s engaged in the

purchase and export of native hats of various styles and qualities. Thus
engaged, it procured the services of the accused to purchase hats of the
individual makers found engaged in that business within a certain area
and to sell them to the company. It w a s the custom among the hat makers
at that time to have advanced to t h e m by their purchasers, money sufficient
to pay for materials and help. The defendant having no money to make
these advances and to pay for the hats which he had engaged to purchase,
certain sums were at various t i m e s advanced to him by C. Fressel & Co. In
return for the advances, the accused at various times sold and delivered to
the company, quantities of hats at an agreed price. In the course of time and
just prior to the commencement of the prosecution, a liquidation of accounts
resulted in disclosing the fact that the accused was in debt to C. Fressel &
Co. for money advanced in the s u m of P l . 0 3 6 . 1 1 .

The money advanced to the accused by C. Fressel & Co. was in the
nature of a loan and not a delivery of money to be used for a particular
purpose or to be returned.
Held: A person receiving money from another and failing to return it
does not commit the crime of estafa unless it is clearly demonstrated that
he received it "for safekeeping, or on commission, or for administration; or
under any other circumstances giving rise to the obligation to make delivery
of or to return the same."

Amounts paid by the students to the school to answer for the value
of materials broken are not mere deposits.
The amounts paid by the students to the college, in order to answer
for the value of materials broken, were no more "deposits" in law than bank
"deposits" are so. There was no showing that the college undertook to keep
safe the money in question and return it later to each student in the very
same coins or bills in which it had been originally received. The Mindanao
Agricultural College merely bound itself to reimburse or repay to each
student, the amount "deposited" by him or by her, after deducting or setting
off the value of broken equipment. The relation thus established between
college and student was one of debtor and creditor, not one of depositor and
depository; the transaction was a loan, not a deposit. As a loan, the college
acquired the ownership of the money paid by the students, subject only

789
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

to the obligation of reimbursing equivalent amounts, unless a deduction

should happen to be due. (People vs. Montemayor, et al., G.R. No. L-17449,
Aug. 30, 1962)

There is no estafa if the thing is received under a contract of sale

on credit.
Where the articles were purchased by the accused on credit, even if
subsequently the term "consignment" w a s used, the failure of the accused
either to pay for the articles or to return them did not make h i m liable for
estafa. (People vs. Santos, 3 C.A. Rep. 791)

Criminal liability for estafa not affected by novation of contract.

People vs. Benitez

(G.R. No. L-15923, June 30,1960)

Facts: The accused was employed by Jose Cua as collector of rents

of the houses owned by the latter. The accused made several collections
amounting to P640.00 but failed to turn over said amount, or to account
for it, to his employer. Upon demand, the accused offered to work in his
employer's establishment, the s u m of P 1 0 0 to be deducted from his salary
every month until the whole amount is fully paid. The offer and conditions
for his employment were accepted by Jose Cua and reduced to writing. After
working for only a few days, the accused did not report, whereupon Cua
wrote to him a letter demanding settlement of his account. The accused
having failed to pay the amount of his obligation, a complaint for estafa was
filed against him. He was convicted and sentenced to suffer imprisonment.
Issue: Whether the accused's agreement w i t h his employer converted
his criminal liability into a civil obligation.
Held: The fact that the accused herein had, with the consent of the
offended party, assumed the obligation of paying the rentals, which he
collected, out of his own salary after he had committed the misappropriation,
does not obliterate the criminal liability already incurred.
In order that novation of contract m a y relieve the accused of criminal
liability, the novation m u s t take place before the criminal liability is
incurred; criminal liability for estafa already committed is not affected by
compromise or novation of contract, for it is a public offense which must
be prosecuted and punished by the state at its own volition. (People vs.
Florido, 12 C.A. Rep. 551) And, in the case at bar, since the criminal liability
of the appellants already took effect w h e n they converted to their use the
four tires which the complainant deposited with t h e m and they thereby
already committed estafa with such conversion and failure to return the

790
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

tires, any subsequent novation of their contract can no longer affect the
already incurred criminal liability of the appellants for the crime of estafa
under Article 315, par. Kb) of the Revised Penal Code. (People vs. Bonilla,
et al, 16 C.A. Rep. 560)

Novation of contract from one of agency to one of sale, or to one

of loan, relieves defendant from incipient criminal liability under
the first contract.
The record fully justifies the conclusion that it was the intention of
the parties to consider the obligation a civil one. Before the filing of the
complaint, the accused signed a "compromise" whereby he acknowledged
the obligation and promised to pay. The complainant sought the execution
of the promissory notes, m a k i n g the appellant acknowledge the existence of
debt, which directly and substantially amended the invoice from the contract
of supposed agency to one of sale. (People vs. Doniog, C.A., 53 O.G. 4500)
The accused, before any demand was made on him (which would
have completed the offense of estafa), persuaded complainant and the latter
agreed, to lend h i m the price of the car and his share of the profit for two
months. Under the facts, the contract of agency between complainant and
appellant w a s converted into a contract of loan, with the result that the
contract of agency w a s thereby novated, so that any incipient criminal
liability under the first is thereby avoided. It would have been otherwise,
had the crime of estafa been completed, for then the criminal liability of
defendant cannot be compounded by subsequent agreement between the
offender and the offended party. (People vs. Clemente, C.A., 65 O.G. 6892)
The novation theory m a y perhaps apply prior to the filing of the
criminal information in court by the state prosecutors, because up to that
time, the original trust relation may be converted by the parties into an
ordinary creditor-debtor situation, thereby placing the complainant in
estoppel to insist on the original trust. But after the judicial authorities have
taken cognizance of the crime and instituted action in court, the offended
party may no longer divest the prosecution of its power to exact the criminal
liability, as distinguished from the civil. The crime being an offense against
the state, only the latter can renounce it. (People vs. Nery, 10 SCRA 244)

Acceptance of promissory note or extension of time for payment

does not constitute novation.
When the offended party in an estafa case accepts a promissory note
of the accused for the payment of the money already converted, the offense
is not thereby obliterated. (Camus vs. Court of Appeals and People, 92 Phil.
85; People vs. Javier, 70 Phil. 550) The extension of time for the payment

791
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

of civil liability does not constitute novation. (People vs. Bautista, CA-G.R.
No. 5448-R, Feb. 13, 1951)

2nd element of estafa with abuse of confidence under paragraph

(b), subdivision No. 1, Art. 315.
It will be noted that there are three ways of committing estafa with
abuse of confidence under Art. 315, No. Kb).
They are:
1. By misappropriating the thing received.
2. By converting the thing received.
3. By denying that the thing w a s received.

"By misappropriating" or "by converting."

Paragraph (b), Subdivision No. 1 of Art. 315, w a s taken by the Code
Commission from paragraph 5 of Art. 535 of the Spanish Penal Code of
1870 which used the words "apropiaren" and "distrajeren" which are
translated into English with the words "misappropriating" and "converting,"
respectively.
The word converting ("distraer") connotes the act of using or disposing
of another's property as if it were one's own. The word misappropriating
("apropiar") m e a n s to own, to take something for one's own benefit.
The words "convert" and "misappropriated" connote an act of using
or disposing of another's property as if it were one's own or devoting it to a
purpose or use different from that agreed upon. To misappropriate for one's
own use includes, not only conversion to one's personal advantage but also
every attempt to dispose of the property of another without right. (U.S. vs.
Panes, 37 Phil. 118; Amorsolo vs. People, 154 SCRA 666)
Pledging a thing by the accused, which w a s received by him only to
be sold on commission, constitutes the crime of estafa. (U.S. vs. Torres, 11
Phil. 606)
Deposit of money received in trust by accused in his personal account
and his failure to account for it on demand is estafa. (Hayco vs. Court of
Appeals, 138 SCRA 227)

Meaning of "conversion."
It presupposes that the thing h a s been devoted to a purpose or use
different from that agreed upon.
Thus, when pieces of jewelry were delivered to an agent to be shown to
prospective buyers, their delivery to a sub-agent for the same purpose does
not constitute conversion. (People vs. Nepomuceno, 46 O.G. 6132)

792
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

Estafa by conversion.
Since pledge involves an act of ownership, the depositary who
pledges a thing received by him for deposit uses it for a distinct purpose
and accordingly commits estafa by conversion. (People vs. Campos, 40 O.G.,
Supp. 12, 7)
Pledging a thing by the accused which was received by him only to
be sold on commission constitutes the crime of estafa. (U.S. vs. Torres, 11
Phil. 606)
The accused received a ring to sell under the condition that she was
to return it the following day if not sold and without any authority to give
it to sub-agent. The accused gave it to a sub-agent, who in turn delivered it
to a third person in payment of the cloth that said sub-agent had obtained
from said third person.
Held: Granting that the accused may not have had the intention of
defrauding the owner of the ring w h e n she received it, the accused certainly
committed abuse of confidence w h e n she violated the above condition. The
filing of criminal action by the agent against the sub-agent is no defense. In
giving the ring to a sub-agent, the accused assumed the right to dispose of it
as if it were hers, thereby committing conversion and a clear breach of trust.
(People vs. Flores, C.A., 47 O.G. 6210)
But the fact that an agent sold the thing received on commission for a
lower price than the one fixed, does not constitute the crime of estafa. (U.S.
vs. Torres, supra)

The better rule is that selling the thing on credit is estafa.

In the case of U.S. vs. Morales, et al., 15 Phil. 236, it was held that
the act of the agent in selling the jewelry on credit and taking promissory
notes from the purchaser for the purchase price, is not estafa, there being
no evidence of conversion of the property to the benefit of the accused or of
some other person.
But in the case of U.S. vs. Panes, 37 Phil. 116, where the accused also
sold to another on credit, the jewelry he had received from the complainant to
be sold on commission and for cash, it was held that the accused was guilty
of estafa. The decision was based on the rule that "to appropriate to one's
own use includes not only conversion to one's personal advantage but every
attempt to dispose of the property of another without right." (9 RCL 1275)

Estafa by misappropriation.
The appellant was the treasurer of the Manila Railroad Company. He
took the sum of P8.330 out of the funds of the Manila Railroad Company,

793
 Art. 315 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

replacing it with his personal check of the same amount, drawn on the
Philippine National Bank. He directed the cashier to hold the check and not
to deposit it on the current bank account of the Manila Railroad Company
until the end of the month. The appellant used the amount of P8.330 for his
personal and private purposes.
When the Insular Auditor made an examination of the accounts of the
Manila Railroad Company on July 1, 1921, the check of the appellant was
discovered and it was found out that it was carried in the accounts as part
of the cash on hand. An inquiry at the Philippine National Bank disclosed
that the appellant then had only P125.66 to his credit there, although later
in the afternoon of that day, he deposited on his current account with the
Philippine National Bank, the sum sufficient to cover the check.
Held: The appellant is guilty of estafa, even if he had no intention
to permanently misappropriate the funds to himself. The law is clear and
makes no distinction between permanent and temporary misappropriations.
(U.S. vs. Sevilla, 43 Phil. 190)

Does momentary use by the agent of funds belonging to his

principal constitute estafa?
Since in the momentary use of the funds belonging to his principal,
the agent has no intention to defraud his principal, it would s e e m that he is
not liable for estafa. As Art. 315 is worded, fraudulent intent is a necessary
element of estafa.
In the case of U.S. vs. Sevilla, supra, it w a s held that fraudulent
intent is not necessary, because the breach of confidence involved in the
misappropriation or conversion of trust funds t a k e s the place of fraudulent
intent and is in itself sufficient.
The Supreme Court stated in that case that such view is further
strengthened by the fact that of the nine paragraphs of Article 535 (now
Art. 315), the paragraph under discussion is t h e only one in which the words
"fraud" and "defraud" do not occur.
But there has been a change in the wording of the article defining and
penalizing the crime of estafa.
Art. 315 begins with the following words: "Any person who shall
defraud another by any of the m e a n s mentioned hereinbelow shall be
punished by:" and the paragraph immediately preceding the definition of
estafa with abuse of confidence states that "the fraud be committed by any
of the following means."

794
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

The crime of estafa under Art. 315, par. 1 (b), is not committed
when there is neither misappropriation nor conversion.
The fact that the accused spent only P39.55 for materials and nothing
for labor of the amount of P753.54 he had received from the complainant for
the purchase of materials and for the wages of the laborers, does not in itself
prove the crime of estafa.
There m u s t be proof of misappropriation or conversion. (Concepcion
vs. People, 74 Phil. 63)
The delay in the fulfillment of a trust or in the delivery of the sum
received on such account only involves civil liability. (U.S. vs. Bleibel, 34
Phil. 227)

When is an agent who gave to a sub-agent the thing received from

his principal, guilty of misappropriation or conversion?
Such delivery w a s not forbidden, and in no wise incompatible with her
duty toward her principals, or with the title of the latter. It is not contended
and there is nothing that even remotely suggests, that appellant had reason
to mistrust her sub-agents or that she received anything from them in
exchange for the rings, or in consideration for the delivery thereof.
If not of misappropriation, m a y the appellant be declared guilty
of conversion of the jewelry? We think not. As stated by Cuello Calon,
conversion presupposes that the thing has been devoted to a purpose or use
different from that agreed upon. That did not take place in the case at bar.
The rings were delivered to appellant to be shown to prospective buyers and
either sold or returned. In delivering them to her sub-agents, the appellant
sought to achieve the same ends, as is proved by the receipts signed by
the sub-agents ("for sale on commission or return"). The destination of
the jewelry remained the same. The one originally agreed upon is sale on
commission.
It is well to note that there is no proof whatever to show that the
complainant had forbidden the accused to employ sub-agents. The absence
of prohibition and the uses of the trade implied authority to appoint sub-
agents as well as power to surrender temporarily the possession of the jewels
to the sub-agent, for no one could be expected to purchase them without
previous examination. (People vs. Nepomuceno, C.A., 46 O.G. 6131)
Where the complainant delivered the ring to the accused to be sold
for cash on commission basis, and there is no prohibition on the part of
the accused to deliver it to any agent for the same purpose of selling same
on commission basis, and thereafter, the accused delivered the ring to her
sub-agent upon a receipt, and there is no evidence of connivance, collusion
or conspiracy between the accused and sub-agent to defraud complainant,

795
 Art. 315 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

the accused cannot be held guilty of conversion of the ring. (People vs.
Munsayac, C.A., 53 O.G. No. 15, 4855)
The accused, who had received a ring to sell under the condition that
she was to return it the following day if not sold, without any authority to
give it to sub-agent who later misappropriated it, is guilty of estafa. (People
vs. Flores, C.A., 47 O.G. 6210)
The ruling in People vs. Galsim, C.A., 45 O.G. 3466, to the contrary
must be deemed superseded.
In giving the property to a sub-agent, the accused assumed the right
to dispose of it as if it were hers, thereby committing conversion and a clear
breach of trust. In estafa, damage to the offended party, not the gain of the
offender, is the important consideration.

Withholding application by agent of money received.

Upon the question as to what circumstances will justify a party so
receiving money in withholding the application of the same, to the agreed
purpose, no fixed rule is announced; and it is stated that each case should
be decided on its own particular facts, reference being made primarily to the
good or bad faith exhibited by the accused in withholding the money from
the use of which it was intended to be applied.
For this reason, a conviction for estafa under this paragraph of Art.
315 cannot be sustained against a person, be he agent, partner, or what-
not, who has in good faith retained the property committed to his care
for the purpose of necessary self-protection against his principal in civil
controversies arising between the two with reference to the s a m e or related
matter. (U.S. vs. Berbari, 42 Phil. 152; see also the case of U.S. vs. Santiago,
27 Phil. 408)

Right of agent to deduct commission from amounts collected.

Can an agent with a right to a commission who collected money for
the principal be held liable for estafa, if he failed to turn over that part of
his collection to the latter?
It depends.
(1) If the agent is authorized to retain his commission out of the
amounts he collected, there is no estafa. (People vs. Aquino, 52
Phil. 37)
(2) Otherwise, he is guilty of estafa, because the right to a
commission does not make the agent a joint owner, with a right
to the money collected. (People vs. Leacnon, 66 Phil. 737)

796
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

People vs. Jumawan

(L-28060, Feb. 27, 1970, 31 SCRA 825)

Facts: The accused retained the amount of P55.00 from his last
collections, since the accrued commissions in the larger amount of P65.00
due and payable to him for previous collections which he had turned over in
full to complainant had not been paid to him. The complainant, his principal,
failed to pay the accused either on account of his earned commissions or his
earned allowances at the rate of P I . 5 0 per day, which should have been paid
to him at the latest upon his turn-over of his collections. The reason for his
not being paid w a s the business losses of complainant.
Held: Under the circumstances, the accused, who w a s unjustly
exploited, is not criminally liable for his act of retaining the amount which
w a s even less than w h a t w a s actually and honestly due and owing to him by
his principal. The complainant not having been damaged or prejudiced by
the act of the accused in retaining and setting off what w a s due to him, the
criminal action for estafa should be dismissed.

Estafa by denying having received the thing.

Thus, if A borrowed a ring from B to be used by the former on a certain
occasion and later, w h e n B asked A to return it, the latter denied having
received it, A is guilty of estafa.
In the case of U.S. vs. Yap Tian Jong, 34 Phil. 10, the accused who
denied having received a box of sinamay delivered to him by mistake was
convicted of estafa.

Third element of estafa with abuse of confidence.

The third element is that the misappropriation, conversion, or denial
by the offender has resulted in the prejudice of the offended party.
In estafa with abuse of confidence, it is not necessary that the offender
should obtain gain. Thus, in the case of People vs. Campos (C.A., 40 O.G.,
Supp. 12, 7), it was held that "the law does not require that in this class of
felony the pledgee should materially benefit by the transaction." In the case
of People vs. Flores (C.A., 47 O.G. 6210), the accused who was found guilty
of estafa by conversion did not benefit by the transaction, because it was the
sub-agent who profited from the thing received.

"To the prejudice of another" — not necessarily of the owner of

the property.
A handed his watch to B to be kept by him while A was engaged in
certain professional work in a circus. Instead of returning the watch to A, B

797
 Art 3 1 5 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

pawned it in a pawnshop for a loan of P100. A, upon knowing it, immediately

went to the pawnshop and recovered it without any expense on his part. Is
B guilty of estafa considering that A suffered no damage?
Held: It is immaterial whether the loss was suffered by the owner or by
a third person. Considering that in view of the literal terms of the provision
of Art. 315, par. 1(b), which says "to the prejudice of another," as well as its
spirit and legal reason, whenever damages are caused as a consequence of
the appropriation or conversion, the act constitutes the crime of estafa, even
though the person who suffered the damage is a third party and not the one
to whom the misappropriated or converted goods belong or to whom they
are to be returned, for this is an incidental element which in no way affects
the juridical nature of the crime. (Decision of the Supreme Court of Spain,
cited in People vs. Yu Chai Ho, 53 Phil. 874)

Partnership — liability of partners for estafa.

Partners are not liable for estafa of money or property received

for the partnership when the business commenced and profits
accrued.

United States vs. Clarin

(17 Phil. 85)

Facts: L delivered to T P172, in order that the latter, in company

with C and G, might buy and sell mangoes, and, believing that he could
make some money in this business, the said L made an agreement with the
three men by which the profits were to be divided equally between h i m and
them.
T, C, and G did in fact traded in mangoes and obtained P 2 0 3 from the
business, but did not comply with the terms of the contract by delivering
to L his half of the profits; neither did they render him any account of the
capital.
Held: When two or more persons bind t h e m s e l v e s to contribute money,
property, or industry to a common fund, with the intention of dividing the
profits among themselves, a contract is formed which is called partnership.
When L put the P172 into the partnership which he formed with T, C
and G, he invested his capital in the risks or benefits of the business of the
purchase and sale of mangoes, and even though he had reserved the capital
and conveyed only the usufruct of his money, it would not devolve upon one
of his three partners to return his capital to him, but upon the partnership
of which he himself formed part, or if it were to be done by one of the three
specifically, it would be T, who, according to the evidence, w a s the person
who received the money directly from L.

798
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

The P172 having been received by the partnership, the business

commenced and profits accrued, the action that lies with the partner who
furnished the capital for the recovery of his money is not a criminal action for
estafa, but a civil one arising from the partnership contract for a liquidation
of the partnership and a levy on its assets if there should be any.
No. 5 of Article 535 of the Penal Code (now Art. 315, par. l[b]),
according to which those are guilty of estafa "who, to the prejudice of another,
shall appropriate or misapply any money, goods, or any kind of personal
property which they m a y have received as a deposit, on commission, for
administration or in any other character producing the obligations to
deliver or return the same," (as, for example, in commodatum, precarium,
and other unilateral contracts which require the return of the same thing
received) does not include money received for a partnership; otherwise the
result would be that, if the partnership, instead of obtaining profits suffered
losses, as it could not be held liable civilly for the share of the capitalist
partner who reserved the ownership of the money brought in by him, it
would have to answer the charge of estafa, for which it would be sufficient
to argue that the partnership had received the money under obligation to
return it.

Failure of partner to account for partnership funds may give rise to

a civil obligation only, not estafa.
Thus, where a partner sold the merchandise belonging to the
partnership and failed to account for the purchase price, he is civilly liable
to the partnership for the price. It is a debt due from a partner as part of
partnership funds. (People vs. Alegre, Jr., C.A., 48 O.G. 5341)

Exception:
While it is true that ordinarily a partner who misappropriates the
selling price of partnership property does not commit estafa, as it is a debt
due from a partner as part of partnership funds, yet the misappropriation
by a partner of the share of another partner in the profits would constitute
estafa through misappropriation. (People vs. Clemente, C.A., 65 O.G.
6892)

A co-owner is not liable for estafa, but he is liable if, after the
termination of the co-ownership, he misappropriates the thing
which has become the exclusive property of the other.
Appellant induced Miguela Angel to buy the house of Martina Nebre
for P3.000. She offered to advance P1.000, a portion of the purchase price,
provided Miguela would pay it back with interest. Miguela agreed. Appellant

799
 Art. 3 1 5 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

then caused the notary public to write the document of sale in her own
name, instead of that of Miguela. Subsequently, appellant sold the house to
Simsuangco and retained the price. Prior to said sale, however, Miguela had
already paid appellant the amount advanced by her, plus interest.
Held: Appellant is guilty of estafa. It will be observed that there were
two pivotal points against appellant in the matter of the alleged swindling:
(a) she caused the notary to write the document of sale in her own name,
instead of that of Miguela Angel; and (b) she subsequently sold the property
to Simsuangco and retained the price. Now, bearing in mind that she had
advanced a portion of the purchase money delivered to Martina Nebre,
the contention could be made that, because she had some interest in the
property, she committed no crime in disposing of it, but only a civil wrong, if
any. We find, however, upon examination of the record that Miguela Angel
repaid her with interest, the amount so advanced, and that w a s prior to the
Simsuangco sale. (Mercado vs. People, 61 O.G. 1666)
Note: At the time of the sale to Simsuangco, the accused had no more
interest in the property.

But when the money or property had been received by a partner

for specific purpose and he later misappropriated it, such partner
is guilty of estafa.

People vs. De la Cruz

(G.R. No. 21732, Sept. 3, 1924)

Facts: C and P formed a partnership for the purpose of purchasing and

selling pigs, P being the manager and C the industrial partner. P delivered
the sum of P2.999 to C, with instructions to go to Villasis, Pangasinan, and
after paying various debts to certain persons in that municipality, to invest
the remainder of the money in the purchase of pigs. C failed to m a k e the
payment of the debts, failed to purchase pigs, and appropriated t h e money
for his own use.

Held: C is guilty of estafa, consisting in the fraudulent appropriation

of the money which had been delivered to him with specific instructions to
apply it to the uses of the partnership. This case is different from the case of
U.S. vs. Clarin, 17 Phil. 84, because in that case, there w a s a mere failure on
the part of the industrial partner to liquidate the affairs of the partnership
and to pay over part of the profit to the capitalist partner.
In another case, where 75 cavans of palay were segregated from the
partnership and were delivered to the accused, one of the partners, for
the purpose of paying the same to the owner of the land, but the accused
misappropriated the palay to his own personal use and benefit, it w a s held
that he was guilty of estafa. (People vs. Campos, C.A., 54 O.G. 681)

800
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

4th element of estafa with abuse of confidence.

This is the only kind of estafa under Art. 315, where demand may be
required. In estafa by m e a n s of deceit, demand is not necessary, because the
offender obtains delivery of the thing wrongfully from the beginning. (U.S.
vs. Asensi, 34 Phil. 750, cited in People vs. Scott, 62 Phil. 553) In estafa with
abuse of confidence, the offender receives the thing from the offended party
under a lawful transaction.
The mere failure to return the thing received for safekeeping or on
commission, or for administration, or under any other obligation involving
the duty to make delivery or return the s a m e or deliver the value thereof to
the owner could only give rise to a civil action and does not constitute the
crime of estafa. U.S. vs. Bleibel, supra; People vs. Nepomuceno, supra. And the
circumstance that the appellants did not appear anymore in complainant's
store and that complainant failed to locate them did not dispense with the
requirement of the law that formal demand m u s t be made on the accused to
return the articles received in trust or on commission, or to account for the
proceeds of their sale, before the action is filed. (People vs. Bastiana, et al.,
C.A., 54 O.G. 4300)

Demand is not required by law; but it is necessary, because

failure to account, upon demand, is circumstantial evidence of
misappropriation.
The facts clearly show that the sum of P6,000 belonging to Quasha
had been misappropriated by petitioner herein, for he disappeared soon
after receipt of said sum, in August, 1947, and when, in 1948, Quasha
found him at the Manila Hotel and inquired what he had done with his
(Quasha's) money, petitioner merely said, "that there was no use telling
w h a t happened," but that he would try to pay it back. Had said money
been invested in rattan which later on w a s spoiled, as appellant tried to
prove, he would have said so, instead of making to Quasha said statement,
which, like his conduct prior and subsequently thereto, implies that he had
misappropriated the funds entrusted to his custody.
It is urged that there can be no estafa without a previous demand, which
allegedly has not been made upon herein petitioner, but the aforementioned
query made to him by Quasha in Manila Hotel was tantamount to a demand.
Besides, the law does not require a demand as a condition precedent to the
existence of the crime of embezzlement. It so happens only that failure to
account, upon demand, for funds or property held in trust, is circumstantial
evidence of misappropriation. The same may, however, be established by
other proof, such as that introduced in the case at bar. (Tubb vs. People, et
al, 101 Phil. 114)

801
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

Failure to account, upon demand, for funds or property held in trust is

circumstantial evidence of misappropriation. (People vs. Sullano, G.R. No.
L-18209, June 30, 1966)

Presumption of misappropriation arises only when the explanation

of the accused is absolutely devoid of merit.
The appellant claims that his failure to return the amount delivered
to him by the offended party was due to the fact that he had advanced
it to several miners in gold in the ordinary course of business, but these
miners perished in an accident before they were able to comply with their
agreement. The explanation of the appellant, if it does not completely destroy
the presumption that he has misappropriated the amount in question, at
least raises reasonable doubt that he had misappropriated said amount.
(People vs. Lopez, C.A.. 56 O.G. 5881-5882)

Even if the offender cannot be located, or there was agreement

upon specific time for delivery or return of the thing received,
demand cannot be dispensed with.
The demand to fulfill the trust or return the thing received m u s t
be made formally and before the action is filed. The circumstance that
the offended party failed to locate the accused did not dispense w i t h the
compliance with the requirement of the law; nor could the inquiry from
the accused of the money, made by her after the action had been filed, take
the place of the demand contemplated therein. To hold that prior demand
need not be proved "where the parties have agreed upon specific time
for the delivery and return of the misappropriated property" is to depart
unwarrantedly from the constant doctrine of the Supreme Court on the
subject. (People vs. Pendon, C.A., 53 O.G. 174)

The ruling is different in these cases:

But in another case, it w a s held that if the offender is in hiding, prior
demand is not necessary to institute the criminal action. The disappearing
act of the offender is a clear indication of a premeditated intention to abscond
with the thing he received from the offended party. The proven facts showed
that the offender could not have complied w i t h the demand, even if it had
been made. (People vs. Villegas, C.A., 56 O.G. 11, 1938)
And it was also held in a case that where the receipt signed by the
accused stipulated that he should turn over the proceeds of the sale or m a k e
an accounting thereof on a specified date, it in itself w a s a demand which
would dispense with the necessity of another one after that date. (People vs.
Librea, C.A., 48 O.G. 5305)

802
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

There is no estafa through negligence.

Article 315, in penalizing estafa by misappropriation or conversion
differs radically from Article 217, punishing malversation of public funds in
that the latter crime may take place if an accountable officer "shall permit
any other person to take such public funds or property, wholly or partially."
Estafa and malversation being both based on unfaithfulness or abuse of
confidence of the agent, the absence of similar provision in the case of estafa
cannot be devoid of significance; it clearly imports that in case of estafa, the
profit or gain m u s t be obtained by the accused personally, through his own
acts, and his mere negligence in permitting another to take advantage of,
or benefit from, the entrusted chattel cannot constitute estafa under Article
315(l-b). (People vs. Nepomuceno, C.A., 46 O.G. 6135)
Thus, w h e n the accused who had received from the complainant the
s u m of P4,000.00, to be employed in the purchase of a car, entrusted and
delivered the money to his business companions for the same purpose, but
his said companions absconded with the money, the accused is not liable
for estafa even if he was negligent in permitting other persons to take the
benefit from the entrusted money. (People vs. Trinidad, C.A., 53 O.G. 731)

"Even though such obligation be totally or partially guaranteed by

a bond."
This clause is used in paragraph (b), subdivision No. 1 of Art. 315.
Thus, a mortgage executed by the agent or salesman or a surety bond
filed by the agent to answer for damages, advances, etc., does not relieve him
from criminal liability, for this undertaking refers only to his civil liability.
(People vs. Leachon, 56 Phil. 737)

The gravity of the crime of estafa is determined on the basis of the

amount not returned before the institution of the criminal action.
In the crime of estafa, the gravity of the offense is not determined
by the value which accused has delivered or has returned to the offended
party after the criminal action is instituted, but by the value which is not
delivered or returned upon the obligation to do so and before the institution
of the criminal action. (People vs. Pagayon, 71 Phil. 337)
It is contended that since appellant had paid the sum of P62 on account
of the amount of P12.052.57, the remaining sum of PI 1,990.57 should serve
as the basis of determining the penalty to be suffered by the appellant.
Thus, it is argued that because the amount embezzled by appellant does
not exceed P12.000, his case falls under the second paragraph of Article 315
of the Revised Penal Code and he should therefore, be sentenced only to a
minimum of one year, eight months and twenty-one days and a maximum

803
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

of two years, eight months and ten days. Held: There is no merit in this
contention. It is a well-settled rule in this jurisdiction that payment made
subsequent to the commission of the crime of estafa does not alter the nature
of the crime committed nor does it relieve the defendant from the penalty
prescribed by law. (Javier vs. People, 70 Phil. 550)

Estafa with abuse of confidence, distinguished from theft.

But a person who misappropriated the thing which he had received
from the offended party may be guilty of theft, not estafa, if he acquired only
the material or physical possession of the thing.
In theft, the offender takes the thing; in estafa, the offender receives
the thing from the offended party.
If in receiving the thing from the offended party, the offender acquired
also the juridical possession of the thing, and he later misappropriated it, he
would be guilty of estafa.
The complainant having turned over the dollars to the accused in the
belief that the same could be changed into pesos, only the material and
transitory possession thereof was transferred thereby, the juridical possession
remaining with complainant, and the subsequent misappropriation thereof
by the accused makes him liable for theft, and not estafa. (People vs. Frias,
C.A., 66 O.G. 9411)

In estafa, the offender receives the thing — he does not take the
thing without the consent of the owner.
A was taking two large cattle to another town to sell t h e m there. On
the way, A became acquainted with B who w a s also going to sell a cow in
that town. Taking advantage of the simplicity of A, B represented himself to
the purchasers to be the owner of the large cattle belonging to A and effected
their sale, with A's consent but without the latter's intervention except the
delivery of the animals to their respective purchasers. B absconded with the
money received by him from the purchasers. What crime w a s committed by
B, theft or estafa?

Held: Estafa. The two large cattle were taken by B with the consent of A.
B did not take the proceeds of the sale; he received them from the purchasers.
But B received the proceeds of the sale to be held by him in trust for A. (See
People vs. Darpeng, CA-G.R. No. 43650, Jan. 1 8 , 1 9 3 7 , V. L. J. 190)

Not theft, because there is no taking or abstracting of the thing

from anyone.
A is a tenant of several parcels of land. A entered into an agreement
with B, whereby the former w a s to contribute 3 1/2 cavans of seed, several

804
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

animals and implements, and an amount of money, and sow the same, and
B w a s to transplant the seed and take care of and harvest the crop, the
profits to be divided between them, share and share alike, deducting the 30
cavans due to the owner of the land and one-half of the expenses defrayed
by A. When the crop w a s harvested, B threshed the same and sold all the
palay, without giving A any share in the proceeds thereof.
Is the crime committed theft?
No, because B w a s in possession of the palay. He did not take or
abstract the same from anyone. (U.S. vs. Reyes, 6 Phil. 441)

The test to distinguish estafa from theft.

In theft, upon the delivery of the thing to the offender, the owner
expects an immediate return of the thing to him. (Albert)
In the following cases, the owner expects the immediate return of the
thing by the offender:
1. Certain Igorots who owned a bar of gold which they wanted to sell and
bank notes which they wanted to change into silver coins gave them
to the accused who promised to take the bar of gold to a silversmith
and have it examined and to change the bank notes into silver coins,
stating that she would return within a short time to report the result.
The accused who never returned, because she disposed of them for her
benefit, was found guilty of theft. (U.S. vs. De Vera, 43 Phil. 1000) In
this case, the Igorots would naturally expect the immediate return of
their bar of gold and bank notes, if the latter were not changed into
silver coins.
2. The accused sold palay to the offended party who handed to him a
PlOO-bill. The accused said she had no change and would step out for
a moment to look for change. The offended party agreed because she
had to go to another house, where she had also bought palay, in order
to have the cereals measured. When the offended party returned,
she was informed that the accused had left for another town. She
absconded with the money.
Held: The crime committed is theft. The juridical possession was
not transferred by delivery because there was no agreement by which the
accused could exercise a better right of possession over the object received
than the owner herself, or had any right to dispose of said object in a manner
binding on the owner. (People vs. Aquino, C.A., 36 O.G. 1886)
Note: The delivery of the PlOO-bill was only for the moment and, with
the express obligation on the part of the accused to make immediate return
of the same if it could not be changed or else to give back to the offended
party an equivalent in bills or coins of smaller denominations.

805
 ESTAFA WITH ABUSE OF CONFIDENCE
By Misappropriating or Converting Personal Property Received

When the owner does not expect the immediate return of the thing
he delivered to the accused, the misappropriation of the same is
estafa.
Thus, in the case of U.S. vs. Pascual, 10 Phil. 621, where the accused
appropriated the sum of P310 which had been entrusted to, and received by
him with the obligation of delivering it to a third person, the owner of the
money did not expect the immediate return of it to him, because what he
expected upon its delivery to the accused, was that the latter would deliver
it to the third p e r s o n . T h e crime committed by the accused is estafa. (See
also the case of U.S. vs. Figueroa, 22 Phil. 270)

Exception:
When the servant received money or other personal property from
the master, with the obligation to deliver it to a third person and, instead
of doing so, misappropriated it to the prejudice of the owner, the crime
committed is qualified theft.

Servant, domestic, or employee who misappropriates the thing he

received from his master or employer is not guilty of estafa.
Where the custody of personal property is only precarious and for
a temporary purpose or for a short period and merely the effect of such
relationship as master and servant, employer and employee, or master and
domestic, the juridical or constructive possession remains in the owner until
the conversion thereof by its custodian. (People vs. Marcelino Nicolas, et al.,
C.A., 58 O.G. 472)
Constructive possession is the relation between t h e owner of the thing
and the thing itself w h e n the owner is not in the actual physical possession,
but when it is still under his control and m a n a g e m e n t , and subject to his
disposition. (See U.S. vs. J u a n , 23 Phil. 105)
The appellant, driver of the service truck of William Lines, Inc.,
caused a container to be filled with gasoline before the tank of the truck
itself was loaded with gasoline. Shortly thereafter, the passenger truck
"St. Francis" arrived. The appellant approached its driver, Manuel Gica, and
asked Gica if the latter wanted to buy gasoline. When Gica answered that
he did, the appellant repaired his truck, took the container which was full of
gasoline and sold it to Gica. All the above circumstances clearly established
that the appellant caused 19.2 liters of gasoline to be loaded on his gasoline
container, out of the 50 liters covered by the requisition slip of William Lines,
Inc., in whose account the said 50 liters of gasoline were charged for payment,
for the purpose of selling it. Held: The appellant might be deemed to have
material possession of the gasoline from the moment the requisition slip w a s

806
 ESTAFA WITH ABUSE OF CONFIDENCE Art. 315
By Misappropriating or Converting Personal Property Received

honored by the gas station employee, but the juridical possession remained
in the complainant to whom the 50 liters of gasoline were to be charged
for payment. Not having the juridical or legal possession of the gasoline,
appellant is guilty of theft. (People vs. Batoon, C.A., 55 O.G. 1388)

Possession of agent distinguished from possession of teller of

bank.
There is an essential distinction between the possession by a receiving
teller of funds received from third persons paid to the bank, and an agent
who receives the proceeds of sales of merchandise delivered to him in agency
by his principal. In the former case, payment by third persons to the teller
is payment to the bank itself; the teller is a mere custodian or keeper of the
funds received, and has no independent right or title to retain or possess the
s a m e as against the bank. An agent, on the other hand, can even assert, as
against his own principal, an independent, autonomous right to retain the
money or goods received in consequence of the agency; as when the principal
fails to reimburse him for advances he h a s made, and indemnify him for
damages suffered without his fault. (Guzman vs. Court of Appeals, 99 Phil.
704, citing Article 1915, N e w Civil Code)

Selling the thing received to be pledged for the owner is theft,

when the intent to appropriate existed at the time it was received.
Thus, in a case where the accused, who received a ring from the
offended party for the purpose of pledging it as security for a loan of P50
for the benefit of the offended party, sold it for P30 and spent for her own
benefit the proceeds, it w a s held that she committed theft, not estafa. The
intent to appropriate the ring existed at the time it was received from the
owner, as shown by the fact that, upon receiving the ring, she immediately
offered it for sale. (People vs. Trinidad, 50 Phil. 65)

Estafa with abuse of confidence and malversation, distinguished.

1. In both crimes, the offenders are entrusted with funds or property.
2. Both are continuing offenses.
3. But while in estafa, the funds or property are always private; in
malversation, they are usually public funds or property.
4. In estafa, the offender is a private individual or even a public officer
who is not accountable for public funds or property; in malversation,
the offender who is usually a public officer is accountable for public
funds or property.
5. In estafa with abuse of confidence, the crime is committed by mis-
appropriating, converting or denying having received money, goods or

807
 Art. 3 1 5 ESTAFA WITH ABUSE OF CONFIDENCE
By Taking Undue Advantage of Signature in Blank

other personal property; in malversation, the crime is committed by

appropriating, taking or misappropriating or consenting, or, through
abandonment or negligence, permitting any other person to take the
public funds or property.

When in the prosecution for malversation the public officer

accountable for public funds is acquitted, the private individual
allegedly in conspiracy with him may be held liable for estafa.
In a prosecution for malversation thru falsification of public documents,
where the indicted public officials who are accountable for public funds are
acquitted, thereby deleting the element of accountability of public funds
from the charge, if the information avers conspiracy, the remaining accused
who are not public officials or are public officials not accountable for public
funds are open to conviction for estafa thru falsification of public documents.
This, because estafa thru falsification of public documents is necessarily
included in a charge of malversation of public funds thru falsification of
public documents. (People vs. Salazar, et al., 61 O.G. 5913, citing U.S. vs.
Solis, 7 Phil. 196, 197-198)

Misappropriation of firearms received by a policeman is estafa, if

it is not involved in the commission of a crime; it is malversation,
if it is involved in the commission of a crime.
Where the accused policeman asked for the pistol of the offended
party, on the pretext that it should be delivered to the Detective Bureau
for examination, and that it would be returned in three days, and once in
possession of the pistol, he sold it, it w a s held that the policeman w a s guilty
of estafa. (People vs. Bautista, C.A., 48 O.G. 3430)
But a policeman, having custody of a firearm seized from a person
without permit to possess it, is guilty of malversation for the disappearance
of said firearm.
See People vs. Magsino, C.A., 50 O.G. 675, where a policeman was
convicted of malversation for the disappearance of the explosives seized by
him from a person who had no permit to possess them.

Estafa by taking undue advantage of the signature of the offended

party in blank.

By taking undue advantage of the signature of the offended party in

blank, and by writing any document above such signature in blank, to the
prejudice of the offended party or any third person. (Art. 315, No. l[c])

808
 ESTAFA WITH ABUSE OF CONFIDENCE
By Taking Undue Advantage of Signature in Blank

Elements of estafa by taking undue advantage of the signature in

blank.
1. That the paper with the signature of the offended party be in blank.
2. That the offended party should have delivered it to the offender.
3. That above the signature of the offended party a document is written
by the offender without authority to do so.
4. That the document so written creates a liability of, or causes damage
to, the offended party or any third person.

Example:
A left to B a blank paper w i t h A's signature with a request to make
a receipt for future payment to be made by a debtor; but instead, B wrote
thereon a vale for some merchandise in the name of A. B made use of the
merchandise for personal benefit. The vale so written created a liability
against A and would cause damage to him, because the owner of the
merchandise could make A pay for the value of the merchandise delivered
to B by reason of the vale.

The paper with the signature in blank must be delivered by the

offended party to the offender.
A was keeping blank papers with the signature of B. C stole one of
them and wrote a document above the signature, creating liability against
B. What crime was committed?
Falsification, because C made it appear that B participated in a
transaction w h e n in truth and in fact he did not so participate, or attributed
to B, a statement other than that made by him. This is not estafa, because
C, not having been entrusted with the signature in blank, could not have
acted with abuse of confidence, which is the element of this form of estafa.

Estafa by means of deceit. (Art. 315, subdivisions Nos. 2 and 3)

The second and third forms of estafa defined in subdivisions Nos. 2
and 3 of Art. 315 are committed by means of deceit. It is committed either by
means of false pretense or fraudulent act, or through fraudulent means.

Elements of estafa by means of deceit:

a. That there must be a false pretense, fraudulent act or fraudulent
means.
b. That such false pretense, fraudulent act or fraudulent means must be
made or executed prior to or simultaneously with the commission of
the fraud.

809
 Art. 315 ESTAFA BY MEANS OF DECEIT
By Means of False Pretenses

c. That the offended party must have relied on the false pretense,
fraudulent act, or fraudulent means, that is, he was induced to part
with his money or property because of the false pretense, fraudulent
act, or fraudulent means.
d. That as a result thereof, the offended party suffered damage.

There is no deceit if the complainant was aware of the fictitious

nature of the pretense.
Where the complainant was aware of the fictitious nature of the
pretense, there is no estafa through false pretenses. Thus, where the charge
of estafa was founded upon deceit, it being alleged that the money of which
the bank was defrauded was obtained by m e a n s of false representation on
the part of the accused Crisologo that he was the owner of the tobacco covered
by the quedans, but the manager of t h e bank, who let the money out, knew
that the tobacco was non-existent, the accused cannot be convicted of estafa
by means of deceit. (People vs. Concepcion, 44 Phil. 544)

BY MEANS OF ANY OF THE FOLLOWING FALSE PRETENSES OR

FRAUDULENT ACTS EXECUTED PRIOR TO OR SIMULTANEOUSLY
WITH THE COMMISSION OF THE FRAUD:

By using fictitious name, or falsely pretending to possess power,

influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits. (Art. 315, No. 2[aJ)

There are three ways of committing estafa under the provisions.

They are —
(1) by using fictitious name;
(2) by falsely pretending to possess: (a) power, (b) influence, (c)
qualifications, (d) property, (e) credit, (f) agency, (g) b u s i n e s s or
imaginary transactions; or
(3) by m e a n s of other similar deceits.

Indispensable requirement for the application of Art. 315, No. 2(a).

In the prosecution for estafa under Article 315, paragraph 2(a) of the
Revised Penal Code, it is indispensable that the element of deceit, consisting
in the false statement or fraudulent representation of the accused, be made
prior to, or, at least simultaneously with, the delivery of the thing by the

810
 ESTAFA BY MEANS OF DECEIT Art. 315
By Means of False Pretenses

complainant, it being essential that such false statement or fraudulent

representation constitutes the very cause or the only motive which induces
the complainant to part with the thing. If there be no such prior or
simultaneous false statement or fraudulent representation, any subsequent
act of the accused, however fraudulent and suspicious it may appear, cannot
serve as a basis for prosecution for that class of estafa. (People vs. Gines et
al., C.A., 61 O.G. 1365)

Estafa by using fictitious name.

There is use of fictitious n a m e w h e n a person uses a name other than
his real name. Thus, w h e n a person found a pawnshop ticket in the name
of another and, using the n a m e of that other person, redeemed the jewelry
mentioned therein, he committed estafa by using a fictitious name. (See
People vs. Yusay, 50 Phil. 598)

Estafa by falsely pretending to possess power.

In the following cases, the offended party was deprived of his property
because of the false pretenses made by the offender, that is, by falsely
pretending to possess power.
1. A wanted to get a carabao, valued at P77, from B, an ignorant Igorot.
By means of a piece of paper which A delivered to B, A induced the
latter to accept it as payment of his carabao upon A's representation
and guarantee that it w a s an instrument which would make and coin
paper and silver money after the lapse of seven Fridays, provided that
B would offer prayers for the success of the enterprise. By reason of
that misrepresentation, B delivered the carabao and accepted the
worthless piece of paper in payment thereof.
Held: A is guilty of estafa by falsely pretending that the worthless
piece of paper possessed power, a statement which induced B to part
with his carabao. (U.S. vs. De los Reyes, 34 Phil. 693)
2. Pretending to be a magician endowed with power to discover hidden
treasures, the accused led the offended party to believe that under his
house was a jar containing articles of great value, but that to obtain
that jar, it was necessary for the offended party to give him P150 for
the purchase of a certain substance and old gold coins to be used in
extracting the hidden treasure. After receiving the money, the accused
left and never returned.
Held: The accused committed estafa. (People vs. Scott, 62 Phil.
555)

811
 Art. 315 ESTAFA BY MEANS OF DECEIT
By Means of False Pretenses

Estafa by falsely pretending to possess influence.

If the accused represented to the offended party, a Chinaman, that
he had influence in Malacanang, the Bureau of Immigration, and the
Department of Foreign Affairs, when in truth and in fact he had no influence
in any of said offices, and said representation was made by him for the
purpose of inducing the offended party, who was interested in the entry of
his family for permanent residence in the Philippines, to give him money
and the offended party gave him the amount asked for his alleged services,
which he later spent for his own benefit, the accused is guilty of estafa.

Estafa by falsely pretending to possess qualifications.

The offended party had a civil case in a justice of the peace court
involving his real estate. The accused, by m e a n s of false representation
that he was qualified in law to represent the offended party in that civil
case, succeeded in obtaining from the latter, the title deeds of his lands. The
accused later refused to redeliver t h e m on demand by the owner.
Held: The accused w a s guilty of estafa. The basis of the penalty is
the value of the paper, not that of the land, because the loss of the title
deeds does not mean necessarily the loss of the land. This case differs from
that where the thing in controversy is a negotiable instrument such as a
promissory note or check. (U.S. vs. Del Castillo, 35 Phil. 413)

Estafa by falsely pretending to possess property (money).

A ordered certain building materials from B on the pretense that he
was building a house and that he had sufficient funds to pay in cash the
value of said materials on completion of their delivery, w h e n in truth and in
fact, he had no money. B could not recover the materials because A disposed
of them.

Held: A w a s guilty of estafa. (People vs. Santos, 71 Phil. 490)

A creditor who deceived his debtor is liable for estafa.

Appellant admits, among others, the evidence for the prosecution to
the effect that on January 3 1 , 1 9 6 4 , he falsely represented to one Illuminado
Jaud that he had 200 cavans of palay for sale; that on the following day, by
means of that deceit and/or false pretense, he succeeded in obtaining from
Jaud the sum of P3,000.00 for the purchase of the palay; that he had in fact
no palay for sale to Jaud; that upon reaching the place where the palay
was indicated by appellant to be taken from, Jaud found that the palay did
not belong to appellant; and that appellant absconded with the money and
refused to return the same.

812
 ESTAFA BY MEANS OF DECEIT Art. 315
By Means of False Pretenses

In making this admission, appellant claims, however, that he had

merely conceived of a plan by which he could obtain from Jaud the sum of
P3,000.00 which w a s the amount of the latter's indebtedness to him. He
t h u s argues that he cannot be convicted of estafa because of the absence
of criminal intent and/or the element of fraud since he received only what
complainant Jaud had owed him.
Held: We do not share appellant's view. Assuming to be true that
complainant had owed him that much, and the deceit w a s merely employed
by appellant as a m e a n s to collect from the former — although we are
skeptical about the truth of this assertion — appellant nonetheless is clearly
liable for the crime of estafa. If it w a s wrong for the complainant to refuse
to pay his obligation to appellant, it w a s not right either for appellant to
employ unlawful m e a n s to enable him to collect. A wrong cannot justify
another wrong. Appellant's contention that there is absence of criminal
intent or fraud is untenable. The plan, as conceived by him, if true, was
precisely born of a desire to commit fraud. The plan itself carried a criminal
intent. (People vs. Rubaton, C.A., 65 O.G. 5048, issue of May 19, 1969)

Estafa by falsely pretending to p o s s e s s credit.

In a case where the accused, by stating and representing themselves
to the employees of S u n Photo Supply t h a t they were merchants with credit,
business and m e a n s with which to pay for 10 dozen rolls, Kodak film No.
116, valued at P72, succeeded in inducing the employees of Sun Photo
Supply to give and deliver, as in fact the latter gave and delivered to said
accused, the goods and merchandise on credit, the accused knowing that
their statements and representations that they had credit, business and
m e a n s were false, and disappeared and absconded themselves with said
goods and merchandise, it was held that they were guilty of estafa. (People
vs. Kaw Liong, et al, 57 Phil. 839)

Estafa by falsely pretending to p o s s e s s agency.

In a case where the accused, falsely pretended to the depositary of
certain goods that he was sent by the depositor of the goods to get them and
succeeded by m e a n s of such false pretense in obtaining the goods which he
converted to his own use, it w a s held that the accused was guilty of estafa.
(People vs. Contreras, C.A., 47 O.G. 782) The accused falsely pretended to
possess the agency of the depositor.

Estafa by falsely pretending to possess business.

The accused, pretending to be engaged in the business of buying and
selling hogs, represented to the offended party that they (accused) had
purchased some hogs in Pampanga but could not secure delivery because

813
 Art, 315 ESTAFA BY MEANS OF DECEIT
By Means of False Pretenses

they were short of funds in the sum of P285.00 and that the hogs could
be sold in Manila at a profit. Because of this representation, the offended
party gave money. The accused in reality had no such business and spent
the money.
Held: The accused were guilty of estafa. (People vs. Acuna, et al., 58
Phil. 976)
A branch manager of an insurance company who still accepted a fire
insurance application despite his knowledge from newspapers that the
insurance company has been suspended is guilty of estafa for not returning
the premium he received. The deliberate concealment by the petitioner of the
fact that his company was no longer authorized to engage in the business of
insurance when he signed and issued the fire insurance policy and collected
the premium payment constitute fraudulent representations or fraudulent
pretenses. (Salcedo vs. Court of Appeals, 139 SCRA 59)

Estafa "by means of other similar deceits."

Deceit, not covered by any of those specifically mentioned in subdivision
2, paragraph (a), but similar to any of them, may give rise to estafa under
that phrase "by means of other similar deceits."
In presenting a deed of donation mortis causa, known to be vitiated
by lack of consent, to the Office of the Register of Deeds to register the same
and to secure new transfer certificates of title in her name, the accused in
effect falsely represented that the deed w a s validly executed and the lots
described therein actually donated to her. She thereby committed estafa
by means of other similar deceits, defined in Article 315, No. 2(a), of the
Revised Penal Code, and this notwithstanding the fact that the deceit w a s
practiced against the Register of Deeds and the damage is incurred by the
supposed donor or her estate, for the law only requires, to hold a person
liable for estafa, that he defrauded another by any of the m e a n s therein
enumerated. (People vs. Papa, C.A., 71 O.G. 1660)

The pretense must be false.

In estafa by means of deceit under subdivision 2(a) of Art. 315, there
must be evidence that the pretense of the accused that he possesses power,
influence, etc., is false.
In the absence of proof that the representation of the accused w a s
actually false, criminal intent to deceive cannot be inferred. (People vs.
Urpiano, C.A. 60 O.G. 6009, citing the ruling in the cases of People vs.
Lagasca, G.R. No. 4230-R, J u n e 5, 1960, and U.S. vs. Adriatico, 7 Phil.
187)

814
 ESTAFA BY MEANS OF DECEIT Art. 315
By Means of False Pretenses

People vs. Wilson Yee

(C.A., 55 O.G. 1223)

Facts: The evidence for the prosecution shows that appellant Yee,
an immigration broker, told the complainant Cua that he (Yee) could help
the latter bring his family into this country because he had influence in
Malacanang, the Bureau of Immigration and the Department of Foreign
Affairs. Upon this representation, Cua entered into an agreement with
Yee for the entry of his family for permanent residence in the Philippines.
Cua gave P2,000 to Yee. After waiting for a long time without hearing from
Yee, Cua went to the Bureau of Immigration to check on the papers for the
entry of his wife and child, but he found that no such papers had been filed.
Thereafter, he went to Yee's office, inquired why no papers were prepared
and demanded the return of the money. Yee promised to give back the
amount but failed to do so.
Held: From the fact of non-compliance by appellant with his part of the
supposed agreement, the trial court concluded that his representation that
he possessed influence was false. The premises do not justify the conclusion.
Not a scintilla of evidence was adduced to prove that appellant's pretense of
influence was not true and therefore fraudulent. In the absence of proof that
his representation was actually false, criminal intent to deceive cannot be
inferred. There is nothing in the record from which we can infer that when he
received the advance payment, the appellant had no intention of rendering the
service contracted by him, and since it was not shown that he in fact possessed
no influence nor that his inaction was due to his lack of influence, he cannot
justifiably be held guilty of deliberate misrepresentation, and his failure or
inability to render the service could have been due to a change of mind, if not
to a lawful cause. Non-performance on his part and his failure to return the
money give rise only to civil liability. (Abeto vs. People, 90 Phil. 581)

The offended party must be deprived of his property by any of the

false pretenses mentioned in paragraph 2(a).
The offender must be able to obtain something from the offended party
because of the false pretense, t h a t is, without which the offended party would
not have parted with it.
This being a form of estafa by means of deceit, the false pretense
should be the efficient cause of the defraudation and, hence, it should be
made either prior to, or simultaneously with, the act of fraud.

Estafa by means of deceit and theft, distinguished.

What materially distinguishes estafa from theft is not the presence or
absence of fraud or deceit but whether only material possession or both the
juridical and physical possession of the thing was transferred.

815
 Art. 3 1 5 ESTAFA BY MEANS OF DECEIT
By Means of False Pretenses

Thus, where the accused, a book account posting clerk of a company,

induced the shop clerks of the latter to believe that they had incurred
shortages of stock in the shops under their care but owned by the company,
through the manipulation of ledger cards pertaining to such shops, and to
cover up the alleged shortages, caused such clerks to deliver to him and his
family, various merchandise which he subsequently misappropriated, the
crime committed is theft, not estafa.
The juridical or legal possession of the merchandise delivered by the
shop clerks to the accused was not transferred, at least from the owner thereof.
Only the physical or material possession of said merchandise was transferred
from one employee of the offended party to another, for the merchandise was
delivered to the accused in the hope that he would remedy an alleged shortage
of the spare parts. (People vs. Escalante, C.A., 59 O.G. 718)

Where commission salesman took back the machines from pros-

pective customers and misappropriated them, the crime committed
is theft, not estafa.
A commission salesman who misappropriated the machines he took
back from prospective customers making them believe that in retaking said
machines he was acting on behalf of his employer when in fact he was not,
is guilty of theft, not estafa. The physical possession secured by him did not
vest in him the juridical possession necessary for the crime of estafa. From a
legal viewpoint, he had taken and carried away the machines without the
knowledge and consent of the owner thereof. (People vs. Maglaya, L-29243,
Nov. 28, 1969, 30 SCRA 606)

Estafa through falsification.

Where a person succeeds in withdrawing money from a deposit account
of another by stealing the latter's passbook for such deposit and forging the
depositor's signature on the withdrawal receipt of the Postal Savings Bank
issued by the bank, he commits the crime of estafa through falsification of
an official document. (People vs. Pineda, C.A., 37 O.G. 525)
Note: In a decision of the Supreme Court of Spain of Nov. 22, 1883,
similar facts were held to be constituting the crime of theft, not estafa
through falsification, "because the false representation made by the offender
was nothing but a continuation and natural development and consequence
of the crime of theft already committed."
Any person who falsifies, counterfeits or imitates the signatures of
the officials appearing in the traffic police sticker, a sort of road or bridge
pass, and sells it, is liable for estafa thru falsification of a public or official
document. (People vs. Asistio, C.A., 59 O.G. 8625)

816
 ESTAFA BY MEANS OF DECEIT Art. 315
By Means of False Pretenses

Estafa through false pretense made in writing is only a simple crime

of estafa, not a complex crime of estafa through falsification.

People vs. Samonte Vda. de Guia

(105 Phil. 1288)

Facts: The defendant, as unremarried widow of Rufino de Guia, who

had died in action in Corregidor, had applied for, and was subsequently
granted, by the Government of the United States, a pension and the benefits
of a life insurance. Although admittedly she later married one Aniano F.
Gili, and she knew that this fact extinguished her rights to said pension
and benefits, she kept on cashing the checks sent to her therefor by the U.S.
Veterans Administration, which had not been notified of her remarriage.
Held: The checks in question were made payable to "Adelaida Samonte
Vda. de Guia as unremarried widow of Rufino de Guia," and that in order
to collect the amount of said checks she had to write on the back thereof
"Adelaida Samonte Vda. de Guia as unremarried widow of Rufino de Guia."
S h e t h u s misrepresented that s h e w a s still the "unmarried widow of Rufino
de Guia," not only by using this specific expression, but also by adding to her
maiden name the phrase "Vda. de Guia," instead of signing, either as Mrs.
Aniano F. Gili, or as Adelaida Samonte Gili, or as Adelaida Gili. She had to
resort to said misrepresentation in order to cash each check and thus collect
w h a t she knew w a s not due to her, thereby defrauding the offended party.
Consequently, the defendant is clearly guilty of estafa.

Attempted estafa through forgery.

After forging 1/8 unit of the Philippine Charity Sweepstakes ticket, by
altering a figure thereon and making it appear a prize-winning number, the
accused presented it at the Philippine Charity Sweepstakes Ticket Office
for the purpose of cashing it, but the forgery w a s noticed there and the
accused failed to get the prize. (People vs. Balmores, 85 Phil. 493)

Fraud in estafa by means of deceit must be proved with clear and

positive evidence.

People vs. Salapare

(CA., 56 O.G. 4039)
The prosecution contends that the appellant falsely represented to the
complainant the real status of the car, because at the time it was offered
to him, the appellant made him understand that he bought the car for his
personal use and that it was not in anyway encumbered. On this point, the
testimony of complainant finds no corroboration on record. On the other

817
 Art. 315 ESTAFA BY MEANS OF DECEIT
By Means of False Pretenses

hand, we have the positive assertion of the appellant to the effect that he
made no misrepresentation whatsoever regarding the car. The declaration
of the appellant to this effect, was corroborated by his witness, who averred,
among others, that he heard the appellant tell the complainant that the
purchase price on the car was not then fully paid.
If the bargain was bad, the complainant w a s simply unfortunate.
"The foolish may lose all they have to the wise; but that does
not mean that the law will give it back to them again. Courts cannot
follow one every step of his life and extricate him from bad bargains,
protect him from unwise investments, relieve him from one-sided
contracts, or annul the effects of foolish acts. Courts cannot constitute
themselves guardians of persons who are not legally incompetent."
(Vales vs. Villa, 35 Phil. 769)
We are, therefore, of the belief that there having been no
misrepresentation and/or concealment regarding the status of the car in
question, on the part of the appellant, no criminal liability attaches to the
transactions under consideration. Fraud, being an essential element of
estafa under subsec. 2(a), Art. 315, R . P . C , m u s t be proved with clear and
positive evidence.

By altering the quality, fineness, or weight of anything pertaining to

his art or business. (Art. 315, No. 2[b])

Estafa by altering the quality, fineness or weight of anything

pertaining to his art or business.
The estafa by altering the quality, fineness, or weight of anything
pertaining to his art or business m a y be illustrated in the case of a jeweler
who, for instance, defrauded a person who h a d delivered to h i m a diamond
and piece of gold to be made into ring by changing the stone with one of
lower quality.

Manipulation of scale is punished underthe Revised Administrative

Code.
But the owner of a store who manipulated his scale should be punished
under the provisions of the Administrative Code.

Violation of the Weights and Measures Act.

1. Selling a supposed ganta of rice which did not fill the measure at the
edges by nearly a half of an inch, is not estafa, because it is specially

818
 ESTAFA BY MEANS OF DECEIT Art. 315
By Pretending to Have Bribed Government Employee

penalized under the Weights and Measures Act. However slight the
shortage may have been, if it w a s the result of fraud, the accused is
guilty under the said Act. (U.S. vs. Cheng Chua, 31 Phil. 302)
2. U s i n g a one-deciliter measure that w a s false or which appeared to have
been altered after it had been officially scaled, thereby defrauding the
purchasing public, is a violation of the Weights and Measures Act.
(U.S. vs. Vicente, 35 Phil. 623)

By pretending to have bribed any Government employee, without

prejudice to the action for calumny which the offended party may deem proper
to bring against the offender. In this case the offender shall be punished by
the maximum period of the penalty. (Art. 315, No. 2[c])

Estafa by pretending to have given bribe.

This is committed by any person who would ask money from another
for the alleged purpose of bribing a government employee, when in truth
and in fact the offender intended to convert the money to his own personal
use and benefit.
Thus, a person who obtains money from another by falsely pretending
that with that money he will bribe the doctor in charge of the physical
examination of the offended party so as to declare him unfit for compulsory
service in the Army, is guilty of estafa under this paragraph.
But if he really gives the money to the doctor, the crime is corruption
of public officer.

"Without prejudice to the action for calumny which the offended

party may x x x bring against the offender."
Note that in addition to the crime of estafa, the offender may still be
liable for the crime of defamation which the government employee allegedly
bribed may deem proper to bring against the offender.

Estafa by means of fraudulent acts.

The acts must be fraudulent.
The acts must be fraudulent, that is, the acts must be characterized
by, or founded on, deceit, trick or cheat.
Note that while in false pretenses the deceit consists in the use of
deceitful words, in fraudulent acts the deceit consists principally in deceitful
acts.

819
 Art. 315 ESTAFA BY MEANS OF DECEIT
By Means of Fraudulent Acts

This being also estafa by means of deceit, the fraudulent acts must be
performed prior to or simultaneously with the commission of the fraud.
Like in other forms of deceit, the offender m u s t be able to obtain
something from the offended party because of the fraudulent acts, that is,
without which, the offended party would not have parted with it.

By postdating a check, or issuing a check in payment of an obligation

when the offender had no funds in the bank, or his funds deposited therein
were not sufficient to cover the amount of the check. The failure of the drawer
of the check to deposit the amount necessary to cover his check within three
(3) days from receipt of notice from the bank and I or the payee or holder that
said check has been dishonored for lack or insufficiency of funds shall be
prima facie evidence of deceit constituting false pretense or fraudulent act.
(Art. 315, No. 2[d], as amended by Rep. Act No. 4885, approved June 17,
1967)

Estafa by postdating a check or issuing a check in payment of an

obligation.

Elements:
1. That the offender postdated a check, or issued a check in payment of
an obligation;
2. That such postdating or issuing a check w a s done when t h e offender
had no funds in the bank, or his funds deposited therein were not
sufficient to cover the amount of the check.

The check issued must be genuine, and not falsified.

The act of signing a check with a fictitious name and falsely pretending
that said check could be cashed at the bank, the accused knowing that
it could not be cashed, and on the strength of such false pretense the
accused obtained from the offended party a certain amount in exchange for
the worthless check, constitutes estafa by m e a n s of false pretense under
paragraph 2(a), and not estafa by postdating or issuing a check under
paragraph 2(d) of Art. 315. (People vs. Bisquera, C.A., 51 O.G. 248)
If the check is falsified and the s a m e is cashed with the bank, or
exchanged for cash, the crime committed is estafa through falsification of a
commercial document.

820
 ESTAFA BY MEANS OF DECEIT Art. 315
By Means of Fraudulent Acts

The check must be postdated or issued in payment of an obligation

contracted at the time of the issuance and delivery of the check.
The phrase "By postdating a check, or issuing such check in payment
of an obligation" in Art. 315, No. 2(d), is not changed by Republic Act No.
4885, except that the word "such" is replaced by the article "a" in relation to
the check issued. The elimination of the word "such" is in accordance with
the decision of the Supreme Court in the case of People vs. Fernandez, 59
Phil. 619, that the word as used in the first line of subsection (d) is an error
in the English translation, and that the provision does not apply exclusively
to postdated checks.
The meaning given to the phrase, "in payment of an obligation", is
that the check should not be postdated or issued in payment of pre-existing
obligation.
Thus, w h e n a check w a s issued in payment of a debt contracted prior
to such issuance, there is no estafa, e v e n if there is no fund in the bank to
cover the amount of the check. (People vs. Lilius, 59 Phil. 339)
The reason for the rule is that deceit, to constitute estafa, should be
the efficient cause of the defraudation as such should be either prior to, or
simultaneously with, the act of fraud. (People vs. Fortuno, 73 Phil. 407)
The crime of estafa under Art. 315, par. No. 2(d), Revised Penal Code,
notwithstanding the amendment, remains and continues to be a form
of swindling by m e a n s of deceit. The phrase "prior to, or simultaneously
with, the commission of the fraud" indicates that to constitute this form of
estafa, the fraudulent act of postdating or issuing a check in payment of
an obligation should be the efficient cause of defraudation and as such it
should be either prior to, or simultaneously with, the act of fraud, x x x The
offender must be able to obtain money or other property from the offended
party because of the issuance and delivery of a check, whether postdated
or not, that is, the latter would not have parted with his money or other
property were it not for the issuance of check. (People vs. Cua, C.A., 72 O.G.
3182)

The rule that the issuance of a bouncing check in payment of a

pre-existing obligation does not constitute estafa has not at all
been altered by the amendatory act. (R.A. No. 4885)
Under Article 315(2)(d) of the Revised Penal Code, as amended by
Republic Act No. 4885, the false pretense or fraudulent act must be executed
prior to or simultaneously with the commission of the fraud to constitute
estafa. Republic Act No. 4885 did not change the rule established in Article
315(2)(d) as interpreted in People vs. Lilius, 59 Phil. 339, and People vs.
Fortuno, 73 Phil. 407. (People vs. Sabio, Sr., 86 SCRA 568)

821
 Art. 315 ESTAFA BY MEANS OF DECEIT
By Means of Fraudulent Acts

As aptly observed by an eminent commentator on the Revised Penal

Code, in order to convict an accused for estafa under Article 315, par. 2(d),
the accused must have obtained the goods because of the check. (Luis B.
Reyes, The Revised Penal Code, 1971 Rev. Ed., p. 664) Indeed, under the
circumstances of this case, it cannot be said that appellants obtained the
goods because of the postdated check they issued. (People vs. Gloria and
Cabarles, CA-G.R. No. 15490-CR, July 15, 1975)

When check is issued in substitution of a promissory note it is in

payment of pre-existing obligation.
Thus, when a person purchased merchandise, signed a promissory
note therefor, and on the date of maturity he gave a check for the amount
stated in the promissory note, but the check w a s dishonored by the bank for
lack of funds, that person is not liable for estafa. (People vs. Canlas, C.A.,
38 O.G. 1092)

The accused must be able to obtain something from the offended

party by means of the check he issues and delivers.
Thus, if A bought from the store of B goods worth P 2 0 0 and issued a
worthless check for P200 in payment of the same, it appearing that B would
not have delivered the goods to A were it not for the check issued by the
latter, the crime committed by A was estafa. Note that A obtained the goods
from B because of the check.
In a case where the accused issued a check to Lee H u a Hong in
exchange for P4,000, but the check w a s dishonored by the bank for lack of
funds, it was held that the accused w a s guilty of estafa. (Ang Tek Lian vs.
Court of Appeals, 87 Phil. 383) Note that the accused w a s able to obtain the
P4,000 because of the check he issued.

Exception: When the check issued is not "in payment of an obliga-

tion."

When postdated checks are issued and intended by the parties

only as promissory notes, there is no estafa even if there are no
sufficient funds in the bank to cover the same.

People vs. Roque Obieta

(C.A., 52 O.G. 5224)

Facts: On July 9, 1953, A sold a Chevrolet used car to B for the agreed
price of P6.450, and the latter delivered to the former on the same date,
four postdated checks drawn against the Philippine Trust Company, the

822
 ESTAFA BY MEANS OF DECEIT Art. 315
By Means of Fraudulent Acts

first, for P450 payable on July 7, 1953; the second, for P2,000 payable on
July 28, 1953; the third, for P2,000 payable on August 28, 1953; and the
fourth, for P2,000 payable on September 28, 1953. The amounts of the first
and second checks were on the dates of their maturity paid in full by B to A
in the latter's establishment in the City of Manila. Only a partial payment,
however, of P900 w a s made on the amount of the third check, and the amount
represented by the fourth check w a s not paid at all. This notwithstanding, A
did not present the third and fourth checks to the Philippine Trust Company
for encashment on the dates they respectively fell due, or on any subsequent
dates. The third and fourth checks were endorsed by A to the legal officer
of the United States Naval Base at Sangley Point and the said checks were
presented by the said legal officer to the bank for encashment on February
16, 1954, but they were dishonored for lack of funds.
Held: It is true that the postdated checks in question were issued
in payment of an obligation which would not have been contracted were
they not issued, in view of A's claim that he would not have transferred
ownership of his car were said checks not issued and delivered to him. But
these checks were not intended for presentation and encashment with the
bank against which they were drawn; that they were delivered as mere
security for the payment by installments of the purchase price of A's car,
which w a s the procedure followed by B to space payments of his numerous
obligations; and that the agreement w a s that it would be redeemed with
cash in A's establishment as they fall due. The said checks were not
intended by the parties to be such but only as promissory notes, and that
the complainant knew the risk he w a s running. Hence, B did not commit
the crime of estafa.

When the check is issued by a guarantor, there is no estafa.

When the accused w a s persuaded to act merely as a guarantor by
guaranteeing by m e a n s of a check, the payment of the materials ordered by
another person, a fact which w a s known to the vendor of the materials, and
the check issued was dishonored for lack of funds, the accused is not guilty
of estafa. The check w a s not issued in payment of an obligation. (People vs.
Suarez, 2 C.A. Rep. 982)

"When the offender had no funds in the bank, or his funds deposited
therein were not sufficient to cover the amount of the check."
The mere fact that the drawer had insufficient or no funds in the bank
to cover the check at the time he postdated or issued a check, is sufficient to
make him liable for estafa.

823
 Art. 315 ESTAFA BY MEANS OF DECEIT
By Means of Fraudulent Acts

Republic Act No. 4885 eliminated the phrase "the offender knowing
that at the time he had no funds in the bank."
In view of the elimination of that phrase, it is not now a defense that
the drawer, through oversight, did not know that he had insufficient or no
funds in the bank when he postdated or issued the check. He should verify
first the amount of his deposit before postdating or issuing a check.
Under subparagraph (d), paragraph 2, Article 315 of the Revised
Penal Code, as amended by Republic Act No. 4885, it is not necessary that
the drawer should know at the time that he issued the check that the funds
deposited in the bank were not sufficient to cover the amount of the check.
(People vs. Bool, et al., 18 C.A. Rep. 741)
RA 4885 merely established the prima facie evidence of deceit and
eliminated the requirement that the drawer inform the payee that he had
no funds in the bank or the funds deposited by him were not sufficient to
cover the amount of the check. (Villarta vs. Court of Appeals, 150 SCRA
336)

Prima facie evidence of deceit.

The failure of the drawer of the check to deposit the amount necessary
to cover his check within three (3) days from receipt of notice from the bank
and/or the payee or holder that said check h a s been dishonored for lack or
insufficiency of funds shall be prima facie evidence of deceit constituting
false pretense or fraudulent act. (Second sentence of Rep. Act No. 4885)
It will be noted that if the drawer of the check is able to deposit the
amount necessary to cover his check within three (3) days from receipt of
notice that said check h a s been dishonored, he is not liable for estafa.
The explanatory note of Senate Bill No. 4 1 3 , which became Republic
Act No. 4885 states:
"It is true that a check m a y be dishonored without any fraudulent
pretense or fraudulent act of the drawer. Hence, the drawer is given three
days to make good the said check by depositing the necessary funds to cover
the amount thereof. Otherwise, a prima facie presumption will arise as to
existence of fraud, which is an element of the crime of estafa."

Good faith is a defense in a charge of estafa by postdating or

issuing a check.
Thus, where the accused issued a postdated check, believing in good
faith that he would be able to deposit in the bank, sufficient funds to pay
said check when presented for collection, but, contrary to his expectations,
was unable to make the necessary deposit, he cannot be held guilty of the

824
 ESTAFA BY MEANS OF DECEIT Art. 315
Presidential Decree No. 818

crime of estafa, it appearing that a few days before the due date, foreseeing
his inability to raise the amount of the check, the accused went to see the
complainant and asked him not to present the check to the bank for collection
and at the same time offered to pay the amount thereof in installments to
which the latter agreed. (People vs. Villapando, 56 Phil. 31)

Stopping payment of check.

While there are times in business transactions w h e n one is justified
in stopping payment of checks issued by him, if checks were issued by
defendant and he received money for them and stopped payment and did
not return the money and if at the time the check w a s issued, he had the
intention of stopping payment, he is guilty of estafa. (U.S. vs. Poe, 39 Phil.
466)

The person who uses the check may also be liable.

One who got hold of a check issued by another, knowing that the drawer
had no sufficient funds in the bank, and used the same in the purchase of
goods, is guilty of estafa. (People vs. Isleta, et al., 61 Phil. 332)
Petitioner's act in negotiating directly and personally the postdated
check issued by his co-accused and t h e n obtaining value from complainant
through deceit and fraudulent representations, is the efficient cause which
constitute estafa under par. 2(d) of Art. 315 of the Revised Penal Code.
Though he did not issue nor indorse the postdated checks, he is still liable
for estafa because of his guilty knowledge that his co-accused had no funds
in the bank when he negotiated it. (Zagado vs. Court of Appeals, 178 SCRA
146)

The payee or person receiving the check must be defrauded.

The payee or person who received the check m u s t be damaged or
prejudiced.

Presidential Decree No. 818, which took effect on October 22,

1975, amends Article 315 of the Revised Penal Code by increasing
the penalties for estafa committed by means of bouncing checks,
as follows:

SECTION 1. Any person w h o shall defraud another

by means of false pretenses or fraudulent acts as denned
in paragraph 2(d) of Art. 315 of the Revised Penal Code, as
amended by Republic Act No. 4885, shall be punished by:

825
 BATAS PAMBANSA BLG. 22

1 s t . T h e p e n a l t y o f reclusion temporal* i f t h e a m o u n t o f
the fraud is over P12,000 pesos but does not exceed P22,000
pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be i m p o s e d in its m a x i m u m
period, a d d i n g o n e y e a r for e a c h a d d i t i o n a l 10,000 p e s o s b u t
the total penalty w h i c h m a y be i m p o s e d shall be no case
exceed thirty years. In such cases, and in connection with the
accessory penalties which may be imposed under the Revised
P e n a l C o d e , t h e p e n a l t y s h a l l b e t e r m e d reclusion perpetua;
6
2 n d . T h e p e n a l t y o f prision mayor i n i t s m a x i m u m
period, if t h e a m o u n t of t h e f r a u d is o v e r 6,000 p e s o s b u t d o e s
not e x c e e d 12,000 p e s o s ;
7
3 r d . T h e p e n a l t y o f prision mayor i n i t s m e d i u m p e r i o d ,
if s u c h a m o u n t is o v e r 200 p e s o s b u t d o e s n o t e x c e e d 6,000
pesos; and
6
4 t h . B y prision mayor i n i t s m i n i m u m p e r i o d , if s u c h
amount does not exceed 200 pesos.

A p p l i c a t i o n o f P.D. N o . 8 1 8 .

Presidential Decree No. 818 applies only to estafa under paragraph

2 (d) of Article 315, and does not apply to other forms of estafa under the
other paragraphs of the same article. (See People vs. Villaraza, 81 SCRA 95)
Hence, the penalty prescribed in P.D. No. 818, not the penalty provided for
in Article 315, should be imposed w h e n the estafa committed is covered by
paragraph 2(d) of Article 315.

BATAS PAMBANSA BLG. 22

S E C T I O N 1. Checks without sufficient funds. — Any

person who makes or draws and issues any check to apply on
account or for value, k n o w i n g at t h e t i m e of issue that he d o e s
not have sufficient funds in or credit w i t h the d r a w e e b a n k
for t h e p a y m e n t o f s u c h c h e c k i n full u p o n its p r e s e n t m e n t ,

5
See Appendix "A," Table of Penalties, No. 28.
6
See Appendix "A," Table of Penalties, No. 22.
7
See Appendix "A," Table of Penalties, No. 21.
8
See Appendix "A," Table of Penalties, No. 20.

826
 BATAS PAMBANSA BLG. 22

which check is subsequently dishonored by the drawee

b a n k for insufficiency of funds or credit or w o u l d have b e e n
d i s h o n o r e d for the s a m e r e a s o n h a d not the drawer, without
any valid reason, ordered the b a n k to stop payment, shall be
punished by imprisonment of not less than thirty days but not
m o r e t h a n o n e (1) y e a r o r b y a f i n e o f n o t l e s s t h a n b u t n o t
m o r e t h a n double the a m o u n t of the c h e c k w h i c h fine shall in
no case exceed Two Hundred Thousand Pesos, or both such
fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person

who, h a v i n g sufficient funds in or credit w i t h the drawee
b a n k w h e n h e m a k e s o r d r a w s a n d i s s u e s a c h e c k , shall fail t o
k e e p sufficient f u n d s o r t o m a i n t a i n a c r e d i t t o c o v e r t h e full
amount of the check if presented within a period of ninety
(90) d a y s f r o m t h e d a t e a p p e a r i n g t h e r e o n , for w h i c h r e a s o n
it is dishonored by the drawee bank.

Where the check is d r a w n by a corporation, company or

entity, the person or persons w h o actually signed the check
in behalf of s u c h d r a w e r shall be liable u n d e r this Act.

BP Big. 22 may be violated in two ways:

1. By making or drawing and issuing any check to apply on account or
for value, knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the payment of such check
in full upon its presentment, which check is subsequently dishonored
by the drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason had not the drawer, without any
valid reason, ordered the bank to stop payment.
2. Having sufficient funds in or credit with the drawee bank when
he makes or draws and issues a check, by failing to keep sufficient
funds or to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date appearing
thereon, for which reason it is dishonored by the drawee bank.

Elements of the offense defined in the first paragraph of Section 1 :

1. That a person makes or draws and issues any check.
2. That the check is made or drawn and issued to apply on account or for
value.

827
 BATAS PAMBANSA BLG. 22

3. That the person who makes or draws and issues the check knows at
the time of issue that he does not have sufficient funds in or credit
with the drawee bank for the payment of such check in full upon its
presentment.
4. That the check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit, or would have been dishonored for the
same reason had not the drawer, without any valid reason, ordered
the bank to stop payment.

Elements of the offense defined in the second paragraph of

Section 1:
1. That a person has sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check.
2. That he fails to keep sufficient funds or to maintain a credit to cover
the full amount of the check if presented within a period of 90 days
from the date appearing thereon.
3. That the check is dishonored by the drawee bank.

Gravamen of BP 22 is the issuance of a check.

Gravamen of BP 22 is the issuance of a check, not the nonpayment of
an obligation. (Lozano vs. Martinez, 146 SCRA 323) The law h a s made the
mere act of issuing a bum check a malum prohibitum. (People vs. Laggui,
171 SCRA 305; People vs. Manzanilla, 156 SCRA 279)

The check may be made or drawn and issued to apply on account

or for value.
BP 22 does not make a distinction as to whether the bad check is
issued in payment of an obligation or to merely guarantee an obligation.
(Que vs. People, 154 SCRA 160)
It should be noted that BP Big. 22 punishes the making or drawing
and issuing of any check that is subsequently dishonored, e v e n in payment
of pre-existing obligation, as indicated in Section 1 thereof by the phrase
"to apply on account." Section 1 also punishes the making or drawing
and issuing of a check that is subsequently dishonored, in payment of an
obligation contracted at the time of the issuance of the check, as indicated
by the words "for value." In the latter case, is the person who made or drew
and issued the check liable for estafa under the Revised Penal Code and also
under BP Big. 22?

Assemblyman Estelito Mendoza, who authored BP Big. 22, expressed

the view that "if he issues a check in payment (of) or contemporaneously with

828
 BATAS PAMBANSA BLG. 22

incurring an obligation, then he will be liable not only for estafa but also for
violation of this Act." His reason is that "(t)he Supreme Court in several
cases has decided that where there is a variance between the elements of
an offense in one law and another law, there will be no double jeopardy." He
cited the element of damage in estafa, which is not required in BP Big. 22.
In view of the purpose of the enactment of BP Big. 22, the crime denned
and penalized there is against public interest, while the crime of estafa is
against property. Deceit is an element of estafa. This is not required under
BP Big. 22.

"Knowing at the time of issue that he does not have sufficient

funds in or credit with the drawee bank."
BP Big. 22 requires that the person who made or drew and issued the
check knew at the time of issue that he did not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its
presentment.
If he had sufficient funds in or credit with the drawee bank at the time
he issued the check, but later he withdrew all his funds from or lost credit
with the drawee bank, is he liable if the check is subsequently dishonored?
Under the first paragraph of Section 1, he is not liable, because at the time
he issued the check, he knew that he had sufficient funds in or credit with
the drawee bank. Note the words "knowing at the time of issue." But he may
be liable under the second paragraph of Section 1, if he fails to keep sufficient
funds or to maintain a credit to cover the full amount of the check.
What is the effect of ordering the bank to stop payment of the check
without any valid reason upon the liability of the drawer or maker who
issued the check? If the drawer or maker had in fact no sufficient funds or
credit, and the check would have been dishonored for that reason had not
the drawer or maker ordered the bank to stop payment, he is liable.
It is no defense then that the drawer of the check ordered the bank
to stop payment, if he had no sufficient funds or credit and the check would
have been dishonored had he not made the order. The law regards the order
of stopping payment as a mere pretext of the drawer to avoid criminal
liability.
The order to the bank to stop payment of the check must be without
any valid reason.
Illustration: There was a mistake in naming the payee of the check:
the drawer ordered the bank to stop payment; and it appeared that the
drawer knew at the time the check was issued that he had no sufficient
funds in the bank. In this case, the drawer is not liable, even if the check
would have been dishonored for insufficiency of funds had he not ordered

829
 BATAS PAMBANSA BLG. 22

the bank to stop payment, because there was a valid reason (wrong payee)
for ordering the bank to stop payment.
It is no defense either that the check was not actually dishonored, for
the fourth element mentions two alternatives, namely: (1) that the check is
subsequently dishonored, or (2) that it would have been dishonored had not
the drawer ordered the bank to stop payment.
Hence, the possibility that the check would have been dishonored by
the drawee bank for insufficiency of funds or credit had not the drawer,
without any valid reason, ordered the bank to stop payment, is sufficient.
As regards the offense defined in the second paragraph of Section
1, it is no defense that when he made or drew and issued the check, the
drawer had sufficient funds in or credit with the drawee bank. What the
second paragraph of Section 1 punishes is the failure of the drawer to keep
sufficient funds in the drawee bank or to maintain a credit to cover the full
amount of the check.
Suppose that the drawer had kept sufficient funds in the drawee
bank for 100 days from the date appearing thereon to cover the check he
had issued. The next day he withdrew all the funds. W h e n the check w a s
presented later on that day to the drawee bank, it w a s dishonored. Is the
drawer liable? No. The check was not presented within a period of 90 days
from the date appearing thereon.
BP Big. 22 specifies the person or persons liable when the check is drawn
by a corporation, company or entity. The person or persons who actually
signed the check in behalf of such drawer shall be liable under the Act.

"Policy of the Supreme Court on the matter of the imposition of

penalties for violation of B.P. Big. 22."
Lack of written notice of dishonor is fatal.
While, indeed, Section 2 of B.P. 22 does not state that the notice of
dishonor be in writing, taken in conjunction, however, with Section 3 of
the law, i.e., that where there are no sufficient funds in or credit with such
drawee bank, such fact shall always be explicitly stated in the notice of
dishonor or refusal. A mere oral notice or demand to pay would appear to be
insufficient for conviction under the law. (Domagsang vs. Court of Appeals,
G.R. No. 139292, Dec. 5, 2000)

No disputable presumption of knowledge of insufficiency of funds

when there is no receipt of notice of dishonor.
The absence of proof that drawer received any notice informing her of
the fact that her checks were dishonored and giving her five working days

830
 BATAS PAMBANSA BLG. 22

within which to make arrangements of payment of the said checks prevents

the application of the disputable presumption that she had knowledge of the
insufficiency of her funds. Absent such presumption, the burden shifts to
the prosecution to prove that the drawer had knowledge of the insufficiency
of funds when the drawer issued the checks; otherwise, the drawer cannot
be held liable under the law. (Caras vs. Court of Appeals, G.R. No. 129900,
Oct. 2, 2001)

Notice of dishonor to corporation is not notice to officer who

issued the check.
If the drawer or maker is an officer of the corporation, the notice of
dishonor to the said corporation is not notice to the employee or officer who
drew or issued the check for and in its behalf. (Marigumen vs. People, G.R.
No. 153451, May 26, 2005) Responsibility under B.P. Big. 22 is personal to
the accused; hence, personal knowledge of the notice of dishonor is necessary.
Consequently, constructive notice to the corporation is not enough to satisfy
due process. (Lao vs. Court of Appeals, 274 SCRA 572 [1997])

Policy of the Supreme Court on the matter of the imposition of

penalties for violation of B.P. Big. 22.
"Section 1 of B.P. Big. 22 (An Act Penalizing the Making or Drawing
and Issuance of a Check Without Sufficient Funds for Credit and for Other
Purposes) imposes the penalty of imprisonment of not less than thirty (30)
days but not more than one (1) year OR a fine of not less than but not more
than double the amount of the check, which fine shall in no case exceed
P200,000, OR both such fine and imprisonment at the discretion of the
court.
"In its decision in Eduardo Vaca vs. Court of Appeals (G.R. No.
131714, 16 November 1998, 298 SCRA 656, 664), the Supreme Court
(Second Division) per Mr. Justice Vicente V. Mendoza, modified the sentence
imposed for violation of B.P. Big. 22 by deleting the penalty of imprisonment
and imposing only the penalty of fine in an amount double the amount of the
check. In justification thereof, the Court said:
"Petitioners are first time offenders. They are Filipino entre-
preneurs who presumably contribute to the national economy.
Apparently, they brought this appeal, believing in all good faith,
although mistakenly, that they had not committed a violation of B.P.
Big. 22. Otherwise, they could simply have accepted the judgment of
the trial court and applied for probation to evade a prison term. It
would best serve the ends of criminal justice if in fixing the penalty
within the range of discretion allowed by S I , par. 1, the same

831
 BATAS PAMBANSA BLG. 22

philosophy underlying the Indeterminate Sentence Law is observed,

namely, that of redeeming valuable human material and preventing
unnecessary deprivation of personal liberty and economic usefulness
with due regard to the protection of the social order. In this case, we
believe that a fine in an amount equal to double the amount of the
check involved is an appropriate penalty to impose on each of the
petitioners."
In the recent case of Rosa Lim vs. People of the Philippines (G.R. No.
130038, 18 September 2000), the Supreme Court en banc, applying Vaca
also deleted the penalty of imprisonment and sentenced the drawer of the
bounced check to the maximum of the fine allowed by B.P. Big. 22, i.e.,
P200,000, and concluded that "such would best serve the ends of criminal
justice."
"All courts and judges concerned should henceforth take note of the
foregoing policy of the Supreme Court on the matter of the imposition of
penalties for violation of B.P. Big. 22." (Supreme Court Administrative
Circular No. 12-2000, November 2 1 , 2000)

Rule of preference in imposing penalties in BP Big. 22.

Supreme Court Administrative Circular No. 13-2001 issued
on February 14, 2001 clarified that the clear tenor and intention of
Administrative Circular No. 12-2000 is not to remove imprisonment as an
alternative penalty, but to law down a rule of preference in the application
of the penalties provided for in B.P. Big. 22.
Administrative Circular No. 13-2001 further clarified that
"Administrative Circular No. 12-2000 establishes a rule of preference in
the application of the penal provision of B.P. Big. 22 such that where the
circumstances of the case, for instance, clearly indicate good faith or a clear
mistake of fact without taint of negligence, the imposition of fine alone
should be considered as the more appropriate penalty. N e e d l e s s to say, the
determination of whether the circumstances warrant that imposition of fine
alone rests solely upon the judge. Should the judge decide that imprisonment
is the more appropriate penalty, Administrative Circular No. 12-2000 ought
not to be deemed a hindrance."

In the case of Tan, et al. vs. Mendez, Jr., G.R. No. 138669, June 6.
2002, the Supreme Court reiterated that (a) Supreme Court Administrative
Circular No. 12-2000, as clarified by Administrative Circular No. 13-2001.
merely established a rule of preference in imposing penalties in B.P. 22
cases, and <b) there was no intention to decriminalize B.P. 22. It w a s held:
"Supreme Court Administrative Circular No. 12-2000. as
clarified by Administrative Circular No. 13-2001, established a rule
of preference in imposing penalties in B.P. 22 cases. Section 1 of B.P.

832
 BATAS PAMBANSA BLG. 22

22 imposes the following alternative penalties for its violation, to wit:

(a) imprisonment of not less than 30 days but no more than one year;
or (b) a fine of not less but not more than double the amount of the
check which fine shall not exceed P200,000.00; or (c) both such fine
and imprisonment at the discretion of the court.
"The rationale of Adm. Circular No. 12-2000 is found in our
ruling in Eduardo Vaca vs. Court of Appeals and Rosa Lim vs. People
of the Philippines. We held in those cases that it would best serve
the ends of criminal justice if, in fixing philosophy underlying the
Indeterminate Sentence Law is observed, i.e., that of redeeming
valuable h u m a n material and preventing unnecessary deprivation
of personal liberty and economic usefulness with due regard to the
protection of the social order.
"To be sure, it is not our intention to decriminalize violation of
B.P. 22. Neither is it our intention to delete the alternative penalty of
imprisonment. The propriety and wisdom of decriminalizing violation
of B.P. 22 is best left to the legislature and not this Court. As clarified
by Administrative Circular No. 13-2001, the clear tenor and intention
of Administrative Circular No. 12-2000 is not to remove imprisonment
as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided in B.P. 22. x x x"

S E C . 2. Evidence of knowledge of insufficient funds. —

The making, drawing and issuance of a check payment of
w h i c h is refused by the d r a w e e b e c a u s e of insufficient funds
in or credit with such bank, w h e n presented within ninety
( 9 0 ) d a y s f r o m t h e d a t e o f t h e c h e c k , s h a l l b e prima facie
evidence of knowledge of s u c h insufficiency of funds or credit
unless such maker or drawer pays the holder thereof the
a m o u n t d u e t h e r e o n , o r m a k e s a r r a n g e m e n t s for p a y m e n t i n
f u l l b y t h e d r a w e e o f s u c h c h e c k w i t h i n f i v e (5) b a n k i n g d a y s
after receiving notice that s u c h check has not b e e n paid by
the drawee.

Presumption of drawer's knowledge of insufficient funds.

It will be noted that BP Big. 22 requires that the person who makes or
draws and issues a check must have knowledge at the time of issue that he
does not have sufficient funds in or credit with the drawee bank.

833
 BATAS PAMBANSA BLG. 22

Section 2 establishes prima facie evidence of knowledge of such

insufficiency of funds or credit. The making, drawing and issuance of a
check, payment of which is refused by the drawee because of insufficient
funds in or credit with such bank, is prima facie evidence of knowledge of
insufficiency of funds or credit, when the check is presented within 90 days
from the date of the check.
In People vs. Laggui, supra, it was held that the maker's knowledge
of the insufficiency of his funds is legally presumed from the dishonor of his
check for insufficiency of funds.

Exceptions:
a. When the check is presented after 90 days from the date of the
check.
b. When the maker or drawer pays the holder thereof the amount
due thereon, or makes arrangements for payment in full by the
drawee of such check within five (5) banking days after receiving
notice that such check has not been paid by the drawee.
The presumption of knowledge of insufficiency of funds or credit does
not lie when the check is presented after 90 days from the date of the check,
because Section 2, which establishes the presumption, requires that the
check be presented within ninety (90) days from the date of the check.
The element of knowledge of insufficiency of funds or credit is not
present and, therefore, the crime does not exist, w h e n the drawer either —
(1) pays the holder of the check the amount due thereon within five
(5) banking days after receiving notice that such check has not
been paid by the drawee; or
(2) makes arrangements for payment in full by the drawee of such
check within five (5) banking days after notice of non-payment.

Prima facie evidence does not arise where notice of non-payment

is not sent to the maker or drawer of the check.
If notice of non-payment by the drawee bank is not sent to the maker
or drawer of the bum check, or if there is no proof as to w h e n such notice w a s
received by the drawer, then the presumption or prima facie evidence as
provided in Section 2 of B.P. Big. 22 cannot arise, since there would simply
be no way of reckoning the crucial 5-day period. (Danao vs. Court of Appeals,
et al., G.R. No. 122353, June 6, 2001)

834
 BATAS PAMBANSA BLG. 22

S E C . 3 . Duty of drawee; rules of evidence. — I t s h a l l b e

the duty of the drawee of any check, w h e n refusing to pay
the same to the holder thereof upon presentment, to cause
to be written, printed, or stamped in plain language thereon,
or attached thereto, the reason for drawee's dishonor or
r e f u s a l t o p a y t h e s a m e : Provided, T h a t w h e r e t h e r e a r e n o
sufficient funds in or credit w i t h s u c h d r a w e e bank, s u c h fact
shall always be explicitly stated in the notice of dishonor or
refusal. In all p r o s e c u t i o n s u n d e r this Act, t h e i n t r o d u c t i o n
in evidence of any unpaid and dishonored check, having
the drawee's refusal to pay stamped or written thereon, or
attached thereto, w i t h the reason therefor as aforesaid, shall
b e prima facie e v i d e n c e o f t h e m a k i n g o r i s s u a n c e o f s a i d
check, a n d t h e d u e p r e s e n t m e n t t o t h e d r a w e e for p a y m e n t
a n d the dishonor thereof, a n d that the s a m e w a s properly
d i s h o n o r e d for the r e a s o n written, s t a m p e d or attached by
the drawee on such dishonored check.

Notwithstanding receipt of an order to stop payment, the

d r a w e e shall state in the notice that there w e r e no sufficient
f u n d s i n o r c r e d i t w i t h s u c h b a n k for t h e p a y m e n t i n full o f
s u c h check, if s u c h be t h e fact.

Section 3 requires the drawee, who refuses to pay the check to the
holder thereof, to cause to be written, printed or stamped in plain language
thereon, or attached thereto, the reason for his dishonor or refusal to pay
the same. Where there are no sufficient funds in or credit with it, the drawee
bank shall explicitly state that fact in the notice of dishonor or refusal.
If the drawee bank received an order to stop payment from the drawer,
the former shall state in the notice that there were no sufficient funds in or
credit with it for the payment in full of the check, if such be the fact.
In all prosecutions under BP Big. 22, the introduction in evidence of
any unpaid and dishonored check with the drawee's refusal to pay stamped
or written thereon, or attached thereto, shall be prima facie evidence of —
(1) the making or issuance of the check;
(2) the due presentment to the drawee for payment and the dishonor
thereof; and
(3) the fact that the same was properly dishonored for the reason
written, stamped or attached by the drawee on such dishonored
check.

835
 BATAS PAMBANSA BLG. 22

The prosecution has to present in evidence only the unpaid and

dishonored check with the drawee's refusal to pay stamped or written
thereon, or attached thereto. It would not be necessary to prove the making
or issuance of the check by the drawer; the due presentment of the check
to the drawee for payment and the dishonor thereof; and the fact that the
same was properly dishonored for the reason written, stamped or attached
by the drawee on the dishonored check.

S E C . 4 . Credit construed. — T h e w o r d " c r e d i t " a s u s e d

herein shall be construed to m e a n an arrangement or
u n d e r s t a n d i n g w i t h t h e b a n k for t h e p a y m e n t o f s u c h c h e c k .

S E C . 5. Liability under the Revised Penal Code. — P r o s e -

cution under this Act shall be without prejudice to any
liability for violation of a n y provision of the R e v i s e d P e n a l
Code.

Issuing a check in payment of an obligation, which is subsequently

dishonored, may be punished under the Revised Penal Code and under BP
Big. 22. Such act of issuing a check without or with insufficient funds in
the bank may be punished under both laws. There is no double jeopardy if
each statute requires proof of an additional fact which the other does not.
Hence, an acquittal or conviction under either statute does not exempt the
defendant from prosecution or conviction under the other. (U.S. vs. Capurro,
et al, 7 Phil. 24)

In estafa under Article 315 No. 2(d), Revised Penal Code, as amended
by Republic Act No. 4885, the act constituting the offense is postdating or
issuing a check in payment of an obligation w h e n the offender had no funds
in the bank or his funds deposited therein were not sufficient to cover the
amount of the check.
The mere fact that the drawer had insufficient or no funds in the bank
to cover the amount of the check at the time he postdated or issued it, is
sufficient to make him liable for estafa.
Deceit is an element of estafa and may be presumed from the failure
of the drawer to deposit the amount necessary to cover the check within
three (3) days from receipt of notice of dishonor for lack or insufficiency of
funds in the bank. Deceit is not required in BP Big. 22.

836
 BATAS PAMBANSA BLG. 22

There must be damage in estafa, the same being the basis of the
penalty.
The penalty for the commission of any of the acts penalized in Section
1 of BP Big. 22 is fixed without regard to the amount of the damage if any
is caused. The fine is based on the amount of the check, not on the damage
caused. Hence, damage is not an element of the offenses defined in BP Big.
22.
In other words, while under BP Big. 22 deceit and damage are
immaterial, the Revised Penal Code requires the additional facts of deceit
and damage to convict the defendant of estafa.

May the drawer who was acquitted or convicted under the Revised
Penal Code for estafa be prosecuted under B.P. Big. 22?
Yes. While B.P. Big. 22 requires the drawer's knowledge of lack or
insufficiency of funds in the drawee bank at the time of issuance of the
check, the Revised Penal Code does not require such knowledge. Hence,
the acquittal or conviction of the drawer under the Revised Penal Code is
not a bar to his prosecution or conviction under B.P. Big. 22, because the
latter law requires the additional fact of the drawer's knowledge of lack or
insufficiency of funds. (U.S. vs. Capurro, et al., supra)

S E C . 6 . Separability clause. — I f a n y s e p a r a b l e p r o v i s i o n
of this Act be declared unconstitutional, the remaining
provisions shall continue to be in force.

S E C . 7. Effectivity. - T h i s A c t s h a l l t a k e e f f e c t f i f t e e n
d a y s after p u b l i c a t i o n i n t h e Official Gazette.
Approved, April 3,1979.

Estafa by issuing bad check is a continuing crime.

In a case, the alleged deceit was said to have taken place in Malolos,
Bulacan, while the damage in Caloocan City, where the checks were
dishonored by the drawee banks. Jurisdiction can, therefore, be entertained
by either the Malolos court or the Caloocan court. While the subject checks
were written, signed, or dated in Caloocan City, they were not completely

837
 Art 315 ESTAFA BY MEANS OF DECEIT
By Obtaining Food or Credit at Hotel, Inn, Restaurant, Etc.

made or drawn there, but in Malolos, Bulacan, where they were uttered and
delivered. (People vs. Yabut, 76 SCRA 624)

By obtaining any food, refreshment or accommodation at a hotel, inn,

restaurant, boarding house, lodging house, or apartment house and the like
without paying therefor, with intent to defraud the proprietor or manager
thereof, or by obtaining credit at a hotel, inn, restaurant, boarding house,
lodging house, or apartment house by the use of any false pretense, or by
abandoning or surreptitiously removing any part of his baggage from a
hotel, inn, restaurant, boarding house, lodging house, or apartment house
after obtaining credit, food, refreshment, or accommodation therein without
paying for his food, refreshment, or accommodation. (Art. 315, No. 2[e])

Estafa by obtaining f o o d or a c c o m m o d a t i o n at a hotel, etc.

There are three w a y s of committing estafa under the provisions:
1. By obtaining food, refreshment or accommodation at a hotel, inn,
restaurant, boarding house, lodging house or apartment house
without paying therefor, with intent to defraud the proprietor or
manager thereof;
2. By obtaining credit at any of said establishments by the use of
any false pretense; or
3. By abandoning or surreptitiously removing any part of his
baggage from any of said establishments after obtaining credit,
food, refreshment or accommodation therein, without paying
therefor.

Example:

The accused stayed as a paying g u e s t at the hotel, known as the Town

House, located along Dewey Boulevard, Manila, from September 29 to
November 16, 1949. He surreptitiously left the hotel, leaving his worthless
baggage in the hotel and without paying his account. He w a s convicted of
estafa. (People vs. Amala, CA-G.R. No. 6936-R, Aug. 27, 1952)

THROUGH ANY OF THE FOLLOWING FRAUDULENT MEANS:

By inducing another, by means of deceit, to sign any document. (Art.
315No.3[a])

838
 ESTAFA BY MEANS OF DECEIT Art. 315
By Inducing Another to Sign Document

Estafa by inducing another to sign any document.

Elements:
(1) That the offender induced the offended party to sign a
document.
(2) That deceit be employed to make him sign the document.
(3) That the offended party personally signed the document.
(4) That prejudice be caused.

There must be an inducement.

The offender m u s t induce the offended party to sign the document.
If the offended party is willing and ready from the beginning to sign the
document and there is deceit as to the character or contents of the document,
because the contents are different from those which the offended party told
the accused to state in the document, the crime is falsification.

Deceit must be employed.

Where the complainants alleged that they signed a conveyance of
their hereditary interest to the accused, thinking that the same was a power
of attorney, but it appeared that no misrepresentation was made by the
accused, he was not guilty of estafa. The remedy of the complainants would
be a civil action.
There can be no conviction for estafa under this paragraph in the
absence of proof that the defendant made statements tending to mislead the
complainant as to the character of the document executed by him. (U.S. vs.
Barnes, 3 Phil. 704)

Example of estafa by inducing another to sign document.

While a person w a s detained and anxious to obtain liberty, the accused
induced him through fraud and deceit to sign what was represented to him
to be a mortgage deed of his land for the purpose of securing the payment of
attorney's fees, whereas the instrument was really an absolute conveyance
of the property. (U.S. vs. Berry, 6 Phil. 370)

Distinguished from the case of U.S. vs. Capule, 24 Phil. 12.

A couple who owned a tract of land, desired and told the accused
to draw up a power of attorney to represent them in court in a pending
suit involving said property. But the accused, without the knowledge and
consent of the couple, caused a document to be prepared setting forth a sale

839
 Art 3 1 5 ESTAFA THRU FRAUDULENT MEANS
By Resorting to Some Fraudulent Practice to Insure Success in a Gambling Game

in his favor and made it appear therein that the same was executed by the
spouses as vendors.
Held: Falsification by attributing to the couple statements other than
those in fact made by them.
In U.S. vs. Malong, 36 Phil. 821, where the crime committed was
held to be estafa, the accused made misrepresentations to mislead the
complainants as to the character of the documents executed by them.
The distinction seems to be that in the case of U.S. vs. Berry, the
accused induced by means of deceit the offended party to sign the document;
whereas, in the case of U.S. vs. Capule, there was no inducement, for
the offended party was willing and ready from the beginning to sign the
document in the belief that it contained statements made by them.
In falsification by attributing to persons who have participated in
an act or proceeding statements other than those in fact made by them,
the offended party made statements to be embodied in a document, but
the offender, in preparing the document, attributed to the offended party,
statements different from those made by the latter.

By resorting to some fraudulent practice to insure success in a gambling

game. (Art. 315, No. 3[bJ)

Estafa by resorting to some fraudulent practice to insure success

in gambling.

Examples:
1. Inducing the offended party, who did not know how to play the game
of blackjack, allegedly to cheat a rich friend by making pre-arranged
signals in which the offended party w a s trained by the accused, and
causing the offended party to lose P l , 1 4 0 on the first game w i t h the
supposed rich friend and telling the offended party to play again and
recover their losses, and on the second game, instead of recovering,
the offended party lost again in the amount of P600, realizing only
too late that she w a s being fooled in the g a m e s by the accused and his
confederate, is estafa under Art. 315, par. 3(b). (People vs. Romero,
C.A., 53 O.G. 695)

The rule in Civil Law that no action can be filed on an immoral or

illegal contract (Art. 1141, C.C.) h a s no application in the prosecution
for estafa, even if the offended party consented to the fraudulent
scheme.

2. Some moments before the cockfight, the accused removed the gaff
from one of the gamecocks and replaced it in an entirely different

840
 ESTAFA THRU FRAUDULENT MEANS Art. 315
By Removing, Concealing or Destroying Document

manner from that in which it w a s before, without the knowledge and

consent of its owner. In that manner the gamecock was fixed, it could
not inflict mortal wounds on and kill its opponent. As a result, the
owner lost his bet of P100. (U.S. vs. Ner, 18 Phil. 534)

By removing, concealing or destroying, in whole or in part, any court

record, office files, documents or any other papers. (Art. 315, No. 3[c])

Estafa by removing, concealing or destroying documents.

Elements of this kind of estafa:

1. That there be court record, office files, documents or any other papers.
2. That the offender removed, concealed or destroyed any of them.
3. That the offender had intent to defraud another.

If there is no intent to defraud, the act of destroying court record

will be malicious mischief.
Thus, a person who destroys the record of a criminal case for the
purpose of affording immunity to the persons accused therein, commits
malicious mischief, not estafa, because the intention of the culprit is not to
defraud. (Guevara)
He is guilty of malicious mischief, because he deliberately causes
damage to the record of the court with evil motive. (See Art. 327)

Examples of this kind of estafa:

1. Concealing document or any other paper.
A person who concealed a document evidencing a deposit of
P2,60n which came into his possession w h e n he offered to collect the
deposit, is guilty of estafa. It is not necessary to inquire whether as
a matter of fact the complainant has ever succeeded in collecting the
deposit or not. The extent of the fraud in this case should be graded
according to the amount which the document represents. (U.S. vs. Tan
Jenjua, 1 Phil. 39)
2. Destroying documents.
Destruction of promissory note given back to the maker to be
replaced with a new one to renew the loan, without making a new
promissory note is estafa because by destroying the old one, the
offended party was dispossessed of the evidence of a debt. (U.S. vs.
Kilayko, 31 Phil. 371)

841
 ESTAFA THRU FRAUDULENT MEANS
By Removing, Concealing or Destroying Document

A bookkeeper who destroyed the chits evidencing his purchases on

credit of merchandise from his employer, so he could avoid payment is guilty
of estafa through falsification. (People vs. Dizon, 47 Phil. 350)

Is the act of destroying a promissory note, given to cover losses

in gambling, by the maker thereof estafa?
In the case of U.S. vs. Gomez Ricoy, 1 Phil. 595, it w a s held that where
the maker of a promissory note, given to cover losses incurred at monte in a
gambling house, obtains possession of his note and conceals or destroys it,
he is prima facie guilty of estafa.
A dissenting Justice stated that such promissory note has no value,
intrinsic or extrinsic; it is void and can not be ratified; it can not therefore
be the subject of estafa.

Distinguished from infidelity in the custody of documents (Art. 226).

1. The crime of infidelity in the custody of documents, as denned in
Art. 226, and this kind of estafa are similar in that the manner of
committing the offenses is the same.
2. But while under Art. 226, the offender is a public officer who is officially
entrusted with the document; in this kind of estafa, the offender is a
private individual or even a public officer who is not officially entrusted
with the documents.
3. In estafa, there is intent to defraud. This element is not required in
infidelity in the custody of documents.

Elements of deceit and abuse of confidence may co-exist.

It will be noted that in general, estafa is committed either by m e a n s of
deceit or with abuse of confidence. (U.S. vs. Rivera, 23 Phil. 383)
But deceit may co-exist with abuse of confidence in the commission of
estafa. Thus —
A intervened as a mediator between B and C in a transaction of sale. A
told B, the owner of the property, that C would buy it for P500, when in truth
and in fact, C was buying it for P600. When C paid through A, the latter gave
B only the P500, pocketing the P100. (See U.S. vs. Lim, 36 Phil. 682)
Inducing the complainant to deliver to the accused the complainant's
dollar bills on the false pretext of changing t h e m with Philippine pesos
at the rate of P4.00 to each dollar bill, with the obligation of giving the
Philippine pesos to the complainant or of returning the dollar bills if these
could not be so exchanged and once in possession of the dollar bills the

842
 ESTAFA THRU FRAUDULENT MEANS Art. 315
By Removing, Concealing or Destroying Document

accused disappeared under the false pretense that he was just going out to
buy something and instead misappropriated the dollar bills, is estafa under
subparagraph (b), paragraph 1 of Article 315 of the Revised Penal Code
(People vs. Franco, C.A., 64 O.G. 1790)

If there is no deceit, no abuse of confidence, there is no estafa,

even if there is damage. There is only civil liability.
When a person h a s received from another, a thing without deceit
or has disposed of the thing received without abuse of confidence, if the
latter suffers damage, the remedy is a civil action, not a criminal action for
estafa.

Damage or prejudice capable of pecuniary estimation.

This is the second element of any form of estafa.

The element of damage or prejudice may consist in:

1. The offended party being deprived of his money or property, as result
of the defraudation;
2. Disturbance in property rights; or
3. Temporary prejudice.

Disturbance in property rights.

Thus, the fact that the typewriter which had been rented from the
offended party w a s sold to another person by the accused, made him liable
for estafa, even if the typewriter w a s recovered by the owner, because the
complainant at least suffered disturbance in his property rights in the said
typewriter and in the possession thereof. (U.S. vs. Goyenechea, 8 Phil. 117)

Payment made subsequent to the commission of estafa does not

extinguish criminal liability or reduce the penalty.
Payment made subsequent to the commission of the crime of estafa
does not alter the nature of the crime committed nor does it relieve the
defendant from the penalty prescribed by law. The partial payment made
subsequent to the commission of estafa does not reduce the amount actually
misappropriated, which is the basis of the penalty. (Javier vs. People, 70
Phil. 550)
The basis of the penalty in estafa is the amount or the value of
the property misappropriated and not delivered or returned before the
institution of the criminal action. (People vs. Pagayon, 71 Phil. 337)

843
 Art. 315 DAMAGE AS ELEMENT OF ESTAFA

Acceptance of partial payment by the offended party or the amount

misappropriated by the accused is not one of the means of extinguishing
criminal liability under Art. 89. (People vs. Gervacio, 102 Phil. 687)

The crime of estafa is not obliterated by acceptance of promissory

note.
When the offended party in an estafa case accepts a promissory note of
the accused for the repayment of the money already converted, the offense
is not thereby obliterated. (Camus vs. Court of Appeals, 92 Phil. 85)

Temporary prejudice.
The accused pretended to be an agent of a company. He offered to sell
a filter to the complainant who w a s prevailed upon to buy it. He issued a
check for P20. The accused promised to deliver the filter on the same day.
When the filter was not delivered on time, the complainant telephoned the
company. Learning that the accused w a s not an agent there, the complainant
notified the bank to suspend payment. The accused never presented it for
payment. Held: The check w a s payable to "cash" and, therefore, negotiable.
While the accused had said check in his possession, the offended party could
not dispose of the amount. (People vs. Santiago, 54 Phil. 814)

A private person w h o p r o c u r e s a loan by m e a n s of deceit

through a falsified public d o c u m e n t of m o r t g a g e , but w h o effects
full settlement of the loan within the p e r i o d a g r e e d u p o n , d o e s
not c o m m i t the crime of estafa, there being no d i s t u r b a n c e of
proprietary rights a n d n o p e r s o n d e f r a u d e d thereby. T h e crime
committed is only falsification of a public d o c u m e n t .

Article 315 of the Revised Penal Code provides thus:

"Any person who shall defraud another by any of the m e a n s

mentioned herein below shall be punished . . . "

There can be no estafa unless there is a person defrauded. In the

instant case, the supposed aggrieved party received complete payment of
the loan presumably within the period agreed upon. Insofar as she w a s
concerned, there had been no disturbance of her proprietary rights. That
being the case, no estafa has been committed. Had the loan not been paid
for, she would have been defrauded, for she could not have foreclosed the
property mortgaged. That had not happened, however. While the accused
used deceit in the procurement of the loan, it is, however undeniable that
they effected full settlement thereof. The supposed aggrieved party has not,
therefore, been defrauded.

844
 OTHER FORMS OF SWINDLING Art. 316
Disposing Real Property Pretending to Be Owner

Is there falsification of public document? The answer is obviously

in the affirmative. The deed of mortgage is a public document and, as we
stated, all material matters contained therein are false for which one of the
accused is responsible. In falsification of public document, prejudice to a
third party is not necessary. (People vs. Cura, et al., 55 O.G. 9242-9243)

The accused cannot be convicted of estafa with abuse of confidence

under an information alleging estafa by means of deceit.
Under the definition of estafa (Art. 315, par. l[b]), it is an essential
element of the crime that the money or goods misappropriated or converted
by the accused to the prejudice of another w a s received by him "in trust or on
commission, or for administration, or under any other obligation involving
the duty to make delivery of, or to return the same. No such allegation
appears in the above information. Consequently, we agree with appellant
that he can not be convicted thereunder of the crime of estafa as defined by
the article mentioned above. (Guzman vs. Court of Appeals, 99 Phil. 708)

Complex crime of theft and estafa.

A, intending to redeem certain jewels, took the pawnshop tickets from
her wardrobe, but as she had to do something, she gave the pawnshop tickets
to B, her servant, so that the latter might take care of them temporarily. A
completely forgot about them. One w e e k later, B went out of the house and
met C who got them and refused to return them, alleging they were of no
value, notwithstanding the insistent demands made by B. Then C redeemed
the jewels without the knowledge and consent of A or B.
Held: C is guilty of the complex crime of theft and estafa, the former
a necessary means to commit the latter. C, with intent to gain, took the
pawnshop tickets without the consent of either A or B. This is theft. By
redeeming the jewels by m e a n s of the pawnshop tickets, he committed
estafa using a fictitious name. (People vs. Yusay, 60 Phil. 598)

A r t . 3 1 6 . Other forms of swindling. — T h e p e n a l t y o f

9
arresto mayor i n i t s m i n i m u m a n d m e d i u m p e r i o d s a n d a
fine of n o t less t h a n t h e v a l u e of t h e d a m a g e c a u s e d a n d not
more than three times such value, shall be imposed upon:
1. Any person who, pretending to be the owner of any

"See Apeendix "A," Table of Penalties, No. 1.

845
 OTHER FORMS OF SWINDLING
Disposing Real Property Pretending to Be Owner

real property, shall c o n v e y , sell, e n c u m b e r , or m o r t g a g e t h e

same;
2. Any person who, k n o w i n g that real property is
encumbered, shall dispose of the same, although such encum-
brance be not recorded;
3. The o w n e r of any personal property w h o shall
wrongfully take it from its lawful possessor, to the prejudice
of the latter or any third person;
4. Any person who, to the prejudice of another, shall
execute any fictitious contract;
5. Any person w h o shall accept any compensation
given him under the belief that it w a s in payment of services
rendered or labor performed by him, w h e n in fact he did not
actually perform s u c h services or labor;
6. Any person w h o , w h i l e b e i n g a surety in a b o n d
given in a criminal or civil action, w i t h o u t express authority
from the court or before the cancellation of his b o n d or
before being relieved from the obligation contracted by him,
shall sell, m o r t g a g e , or, i n a n y o t h e r m a n n e r , e n c u m b e r t h e
real property or properties w i t h w h i c h he g u a r a n t e e d the
fulfillment of s u c h obligation.

Par. 1 — By c o n v e y i n g , selling, e n c u m b e r i n g , or m o r t g a g i n g
any real property, pretending to be the o w n e r of
the same.

Elements:
1. That the thing be immovable, such as a parcel of land or a building.
2. That the offender who is not the owner of said property should represent
that he is the owner thereof.
3. That the offender should have executed an act of ownership (selling,
leasing, encumbering or mortgaging the real property).

4. That the act be made to the prejudice of the owner or a third person.

Examples:
1. A sold a parcel of land to B. Later, A sold the s a m e parcel of land
to C, representing to the latter that he (A) w a s the owner thereof.

846
 OTHER FORMS OF SWINDLING Art. 316
Disposing Real Property Pretending to Be Owner

At the time he sold the land to C, A was no longer the owner of the
property.
2. The accused, as president of the Federal Films, Inc., and knowing
that the corporation was a mere lessee of Cine Palace in Cavite City,
represented to the offended party, the owner of Cine Nacional in
Manila, then being leased by the corporation, that the corporation
was the owner of the land and building of Cine Palace to induce the
offended party to accept a mortgage of the real property as security
for the payment of the P3,000 monthly rent of Cine Nacional. During
the lease of Cine Nacional, the corporation could not pay the monthly
rent of P3,000. Damage w a s caused to the offended party when he
could not realize any amount from the mortgage to satisfy the unpaid
rental. (Velasco vs. Court of Appeals, 90 Phil. 688)

The thing disposed of must be real property.

If the property is a chattel, the act is punishable as estafa under Art.
315, that is, by falsely pretending to possess property or by means of other
similar deceits. (Albert)

Building as real property.

It is the doctrine in this jurisdiction that true buildings (not ones merely
superimposed on the soil) are real property by incorporation, whether they
be erected by the owner of the land or by a usufructuary or lessee. (People
vs. Buencamino, CA-G.R. No. 12267-B, Aug. 24, 1955)

There must be existing real property.

Where the accused sold non-existent land, he is guilty of estafa by
m e a n s of false pretenses under paragraph No. 2(a) of Art. 315, not of other
form of swindling under paragraph No. 1 of Art. 316. (U.S. vs. Cara, 41 Phil.
828)

Deceit consisting in false pretense as to ownership of the real

property must be employed by the offender.
A had been occupying certain lots of the Friar Lands belonging to the
Government. He executed a document which reads, as follows: "Received
from Mr. Alfonso x x x the sum of P700 for transferring my rights of
possession of the lots x x x." A never pretended to be the owner of the land
in question. He sold not the land but only his right of possession over it.
Held: For the commission of the crime of estafa penalized under
subsection 1 of Art. 316, there is need of deceit employed by the accused,

847
 Art 3 1 6 OTHER FORMS OF SWINDLING
Disposing Real Property Pretending to Be Owner

consisting in false pretense with regard to his ownership of the real property
sold, conveyed or encumbered. (People vs. Absalud, CA-G.R. No. 116979-R,
Feb. 21, 1955)
Article 316, No. 1 of the Revised Penal Code, penalizes only a person
who pretends to be the owner and not one who claims to be the owner.
Where the accused claims to be the owner of a parcel of land, and especially
where his ownership is evidenced by a Certificate of Title, it cannot be said
that he pretended to be the owner thereof, even if his ownership is defective
and he may be compelled to return the property to the person found to be
the owner of the property. (People vs. Adriatico, 15 C.A. Rep. 1002)

Even if the deceit is practiced against the s e c o n d p u r c h a s e r a n d

the d a m a g e is incurred by the first purchaser, there is violation of
paragraph No. 1 of Art. 316.
A sold a piece of land with pacto de retro to B. A failed to repurchase
the land and B became the owner thereof. While still in possession and
claiming to be still the owner of said property, A sold it to C who bought
it in ignorance of the fact that the property had already been alienated. C
registered the sale in his favor. B lost the property because by not registering
the sale in his favor, he was divested of his title.
When prosecuted for estafa, A argued that since the deceit w a s
practiced by him against C, the second purchaser, while the damage fell on
B, the first purchaser, he is not guilty of estafa.
Held: Such argument is not sustainable. Those acts constitute the
crime of estafa. (U.S. vs. Drilon, 36 Phil. 834)

Is intent to c a u s e d a m a g e sufficient?
Since the penalty of fine prescribed by Art. 316 is based on the "value
of the damage caused," mere intent to cause damage is not sufficient. There
must be actual damage caused by the act of the offender.
In People vs. Fermin, C.A., 72 O.G. 5783, the Court of Appeals erred in
stating that the 4th element of the offense is that "there m u s t be damage or
prejudice to a third person or intent to cause such damage or prejudice."

Art. 316, par. 1 , a n d Art. 3 1 5 , par. 2(a), c o m p a r e d .

The court a quo found the appellant guilty of estafa under Article
316, par. 1, of the Revised Penal Code, obviously on the opinion that the
threshing machine w a s a real property as contemplated in this provision
of the law.

The machinery remains classified as immovable while it stays

installed for the purpose of the industry or work. But once the property

848
 OTHER FORMS OF SWINDLING Art 316
Disposing of Real Property Falsely Representing as Free From Encumbrance

is removed from its installation, as was to be expected in the case at bar

if the sale was to be made, it ceases to be a real property but returns to
its original classification as personal property. By this, we do not mean,
however, that Article 315, par. 2(a) covers only cases where the property
involved is personal property. Both personal and real property may be the
subject of the crime under the law. But although Art. 316, par. 1 refers only
to real property, its violation is confined to certain instances not common
with those of Art. 315, par. 2(a). As we see it, Art. 316, par. 1 covers a
specific situation where the offender exercises or executes, as part of the false
representation, some act of dominion or ownership over the property to the
damage and prejudice of the real owner of the thing. On the other hand,
this circumstance need not be present for a crime to be committed under
Art. 315, par. 2(a). In the case at bar, the evidence does not disclose that the
appellant had exercised certain acts of ownership or dominion beyond his
mere pointing of the property to the offended party and his claim that he was
the owner thereof. This is, therefore, a proper case for the application of Art.
315, par. 2(a). (People vs. Suratos, C.A., 62 O.G. 1963)

Par. 2 — By disposing of real property as free from encum-

brance, although such encumbrance be not
recorded.

Elements:
1. That the thing disposed of be real property.
2. That the offender knew that the real property was encumbered,
whether the encumbrance is recorded or not.
3. That there must be express representation by the offender that the
real property is free from encumbrance.
4. That the act of disposing of the real property be made to the damage
of another.

Example:
A mortgaged his property to B. Later, A, misrepresenting that said
property is free from encumbrance, mortgaged it again, this time to C.
But if C knew that the property had already been mortgaged to B, C
cannot complain, as there is neither deceit nor fraud.

"Shall dispose of the same."

The act constituting the offense is disposing of the real property falsely
representing that it is free from encumbrance.

849
 . 316 OTHER FORMS OF SWINDLING
Disposing of Real Property Falsely Representing as Free From Encumbrance

The term "shall dispose" includes encumbering or mortgaging.

Meaning of "encumbrance."
The term "encumbrance" includes every right or interest in the land
which exists in favor of third persons.
An outstanding mortgage, an ordinary lease, an attachment, the lien of
a judgment, and an execution sale subject to redemption are encumbrances
on the land.

The offended party must have been deceived, that is, he would not
have granted the loan had he known that the property was already
encumbered.
Appellant does not deny having received from the complainant the
sum of P2,500.00 by way of loan and that to secure the same he executed
in his favor a deed of chattel mortgage on a two-story house expressly
warranting therein that the same was free from any lien or encumbrance. It
developed however that such warranty is not true for it w a s later discovered
that the same property had already been previously mortgaged by appellant
in favor of spouses Alejandro Anatolio and Juliana de la Torres which
mortgage was still subsisting. It is evident that the appellant obtained the
loan from complainant through false representation or deceit which is one
of the elements constituting the crime of estafa. It is apparent that the
complainant granted the loan to appellant in the belisf that the security
offered was good and sufficient to guarantee his i n v e s t m e n t because it
was free from any lien or encumbrance. Had he known that it was already
encumbered, the likelihood was that he would not have granted the loan,
which proves the fraud of which he was a victim. (People vs. Galsim, G.R.
No. L-14577, Feb. 29, 1960)

When the loan had already been granted when defendant offered
the property as security for the payment of the loan, Art. 316, par.
2, is not applicable.
Exhibit A, "Kasulatan ng Garantiya," executed by the defendant,
reads as follows:

"Ako, GERARDO RUBIA, x x x, ay alang-alang at dahil sa

halagang anim na libong piso/P6,000.00), salaping Filipino, sa amin
ay ipinahiram na akin n a m a n g tinatanggap ng buong kasiyahan sa
kay LOLITA L. LUNA, x x x ay sa pamamagitan ng kasulatang ito ay
aking iginagarantiya ang x x x."

850
 OTHER FORMS OF SWINDLING Art.;
Disposing of Real Property Falsely Representing as Free From Encumbrance

It will be noted that the defendant had already been granted loan of
P6.000.00 by the complainant Lolita L. Luna, when said defendant offered
the properties to guarantee the payment of said loan. Defendant did not,
therefore, sell or dispose of the said properties to the complainant, knowing
the same to be already encumbered, so as to m a k e her liable under Article
316, paragraph 2, of the Revised Penal Code. (Dissenting — People vs.
Rubia Vda. de Torres, C.A., 62 O.G. 9270)

"Although such encumbrance be not recorded."

Notwithstanding this phrase in paragraph No. 2 of Art. 316, in certain
cases, it was held that the encumbrance m u s t be legally constituted.
An enforceable verbal agreement, previously made, to mortgage the
real property as a security for a loan is not an encumbrance on the property,
because a promise to mortgage is not an encumbrance. (U.S. vs. Mendezona,
1 Phil. 696; People vs. Vda. de Agoncillo, CA., 50 O.G. 4884; People vs.
Bacolod, 64 Phil. 1056)
The attachment does not constitute an encumbrance until it is
registered. (U.S. vs. Regalado y Sta. Ana, 1 Phil. 125)
The mortgage of a parcel of registered land which is not registered, is
void. (People vs. De la Cruz, C.A., 52 O.G. 4725)
In all these cases, the accused, who were charged with other forms of
swindling under paragraph No. 2 of Art. 316, were acquitted.
However, in one case, the Court of Appeals held that for purposes
of violation of Article 316, paragraph 2 of the Revised Penal Code, it
is immaterial whether the encumbrance be considered as a deed of sale
with right of repurchase or as an equitable mortgage and whether said
encumbrance is registered and annotated in the certificate of title, for under
Article 316, it is not necessary that encumbrance be registered. (People vs.
Gurango, et al., 15 C.A. Rep. 271)
In Antazo vs. People, 138 SCRA 284, the Supreme Court held that
a person who executes a Deed of Sale over a parcel of land "free from all
liens and encumbrances" after full payment of the purchase price when in
fact the land has been mortgaged and is the subject of a levy on execution,
commits estafa. The fact that encumbrance on land sold "free from all liens
and encumbrances" was registered with the Register of Deeds does not
change the character of the act as estafa.

Usurious loan with equitable mortgage is not an encumbrance on

the property.
Where the unregistered deed of conveyance previously executed
by the accused, be it a pacto de retro or absolute sale is in reality a mere

851
 Art. 316 OTHER FORMS OF SWINDLING
Disposing of Real Property Falsely Representing as Free From Encumbrance

usurious contract of loan with equitable mortgage, the execution by the

said accused of a subsequent deed of absolute sale of the same property
in favor of another with a warranty therein that the property sold is free
from liens and encumbrances, does not constitute the crime of estafa under
Article 316, par. 2, of the Revised Penal Code. The usurious loan contract,
including its accessory obligation of equitable mortgage, being null and void
(Arts. 1352, 1409, 2052 and 2086, Civil Code), no legal encumbrance on the
property was created thereby.
Since at the time appellant executed the second deed of sale on May
24, 1957, he had actually returned more than the capital received by him,
and since under the Usury Law he was not liable for the interest and in
fact could recover whatever sum he might have delivered on that account,
the loan had been extinguished by payment and the equitable mortgage to
guarantee the said loan, discharged as a consequence. In other words, w h e n
appellant sold the house to Renato R. Vera, there w a s in legal contemplation
no more lien or encumbrance thereon, and hence his s t a t e m e n t to that effect
did not constitute a misrepresentation within the meaning of Article 316,
paragraph 2, of the Revised Penal Code, under which he was prosecuted and
convicted by the trial court. (People vs. Masangkay, C.A., 58 O.G. 3565)

T h e thing d i s p o s e d of m u s t be real property.

If the thing encumbered is personal property, Art. 319 applies,
because Art. 319 punishes him who sells or pledges personal property which
is already subject to an encumbrance.

The offender m u s t k n o w that t h e real p r o p e r t y is e n c u m b e r e d .

Thus, if the accused did not know that the property he acquired had
been mortgaged and sold the same as free from encumbrance, the accused
is not criminally liable.

Real property may be registered under any system of registration.

This paragraph applies whether the property is registered under the
Spa lish system of transfer of property or it is registered under the Land
Registration Act.
The Land Registration Act might m a k e it more difficult to consummate
he crime, but it does not change the nature of the act. (People vs. Uehara,
34 }.G. 477)

T h e third e l e m e n t requires m i s r e p r e s e n t a t i o n , f r a u d , or deceit.

The motion of misrepresentation, fraud, or deceit involves acts
or spoken or written words by a party to mislead another into believing

852
 OTHER FORMS OF SWINDLING Art. 316
Disposing of Real Property Falsely Representing as Free From Encumbrance

something to be true when it is not in fact. The element of fraud in the crime
of estafa under Art. 316, par. 2, cannot be implied. (People vs. Mariano,
C.A., 4 0 O . G . , Supp. 4, 91)
The mere fact that the encumbered real property is disposed of
again by the owner does not in itself constitute swindling or a violation of
Article 316 of the Revised Penal Code. It is necessary to prove that there
was fraud or deceit in the second disposition. The vendor must have made
express representations to the second buyer that the property was free from
encumbrance. Fraud cannot be presumed from the mere fact that there
w a s a second sale. The law does not prohibit the sale of encumbered real
property. What is penalized is the fraud or deceit committed by the vendor
in representing that the property is not encumbered. (People vs. Gurango,
et al. C.A., 67 O.G. 2930)

When the third clement is not established, there is no crime.

In the deed of sale executed by the accused, no express mention of the
existence of the encumbrance in question w a s made. It merely recites that
the vendor is "the legal and absolute owner of the house," which is true; and
that she bound herself "to defend the vendee from any and all claims which
may arise as a result of this conveyance." What really took place was that it
did not occur to the parties to discuss whether there were any encumbrances
on said property.
Held: Under the facts, therefore, it cannot be held that the accused was
guilty of misrepresentation and fraud. Her passive attitude is insufficient
to constitute fraud within the meaning of the law. The fraud contemplated
in the law must be the result of some overt acts. There must be express
representation that the real property is free from encumbrance. It cannot be
deemed implied. Silence as to such encumbrance does not involve a crime.
(People vs. Buencamino, C.A., 51 O.G. 6341)
Appellant argues the registration of the deed of sale with right of
repurchase, Exh. B, in favor of Regelio Cariaga was sufficient notice to
Diosdado Cruz, as registration is constructive notice to the whole world.
Under appellant's contention, the crime of estafa which consists in the
disposition of immovable property as unencumbered, knowing it to be
encumbered, could never be committed if the first disposition was registered
in the office of the Register of Deeds. This is not justified by the wordings
in paragraph 2, Art. 316 of the Revised Penal Code, to wit: "Any person
who, knowing that real property is encumbered shall dispose of the same,
although such encumbrance be not recorded." The words "although such
encumbrance be not recorded x x x" obviously implies that the crime is
committed whether the first disposition is recorded or not. For the purpose
of the commission of the offense, it is the false pretenses or representations

853
 OTHER FORMS OF SWINDLING
By Wrongfully Taking Personal Property By the Owner

of the owner that constitute deceit. It is his disposition of the property

knowing it to be encumbered that constitutes fraud. For that purpose, the
criminal law does not require that the victim should make an inquiry or
investigation in the office of the Register of Deeds to find out the actual
status or condition of the property. (People vs. Mirasol, 18 C.A. Rep. 654)

There must be damage caused.

If no damage should result from the sale, no crime of estafa would be
committed by the vendor, as the element of damage would then be lacking.
(People vs. Mariano, C.A., supra)
Is the intention to cause damage sufficient? The basis of fine, in
addition to imprisonment, is the "value of the damage caused."
But it is not necessary that the act be made to the prejudice of the
owner of the land. (People vs. Luzentales, C.A., 55 O.G. 48)

"Shall dispose of the same as free from encumbrance."

The phrase "as free from encumbrance" is omitted in paragraph 2 of
Art. 316. The Spanish text says "El que dispusiere de un inmueble como
libre, sabiendo que estaba gravado, etc."
The omitted phrase "as free from encumbrance" is the basis of the
ruling that silence as to such encumbrance does not involve a crime.

Par. 3 — By wrongfully taking by the o w n e r his personal

property from its lawful possessor.

Elements:
1. That the offender is the owner of personal property.
2. That said personal property is in the lawful possession of another.
3. That the offender wrongfully takes it from its lawful possessor.
4. That prejudice is thereby caused to the possessor or third person.

Example:
The accused pawned his watch to the complainant. Later, pretending
to have the money for redeeming the watch, the accused asked the offended
party to give him the watch. Once in possession of it, he carried it away
without paying the loan for which it w a s given to the offended party as
security. (People vs. Fajardo, 49 Phil. 206)

854
 OTHER FORMS OF SWINDLING
By Wrongfully Taking Personal Property By the Owner

The offender must be the owner of personal property.

Note that the offender m u s t be the owner of the personal property. If he
is a third person and his purpose in taking it is to return it to the owner, it
is theft, since the abstraction w a s made with the intent that another might
profit thereby. (Albert)

If the owner took the personal property from its lawful possessor
without the latter's knowledge and later charged him with the value
of the property, is it theft or estafa?
In no case may the owner be held guilty of theft of his own property,
because one of the e l e m e n t s of theft is that the property belongs to another.
But if the owner, after taking it without the consent of the possessor, charged
the possessor with the value of said property, the crime committed is theft.
(U.S. vs. Albao, 29 Phil. 86)
Note: Although the property belongs to the offender, yet by charging
the former possessor with its value, the offender intends to take another's
money and at the same time exhibits an intent to gain. This is the reason
for the ruling in the case of U.S. vs. Albao, supra.
But in charging the lawful possessor with its value, will not the owner
make a false pretense, which is a form of deceit, and, therefore, the crime
is estafa?

The personal property must be in the lawful possession of another.

A knew that B had found a ring belonging to C. A, without the
knowledge and consent of B, took it from the latter's chest and gave it to C,
its owner.
Is A liable under the third paragraph of Art. 316?
No, because B was not the lawful possessor of the ring. The finder of
lost property has no right to possess the same, it being his obligation to give
it to its owner or to the authorities.

The offender must wrongfully take the personal property from its
lawful possessor.
The taking is wrongful when it is without the consent of the possessor,
or when deceit is employed by the owner of the personal property in inducing
the possessor to give it to him.
Thus, where the accused, who had delivered his ring to the offended
party as collateral to a loan, falsely manifested and fraudulently represented
to the latter that he had a buyer of the ring, promising to return it, if not

855
 Art. 316 OTHER FORMS OF SWINDLING
By Executing Fictitious Contract

sold, or to pay the loan out of the proceeds of the sale, and once in possession
thereof never fulfilled his promise, he is liable under Art. 316, par. 3. (People
vs. Villacorta, 2 C.A. Rep. 425)

Does the phrase "shall w r o n g f u l l y t a k e it" include t a k i n g by

violence?
If the owner takes the thing from the bailee by means of violence or
intimidation, with intent to charge the bailee with its value, the crime is
robbery. (U.S. vs. Albao, 29 Phil. 86)
In view of that ruling, it would seem that if the thing is taken by
means of violence, without intent to gain, it would not be estafa, but grave
coercion. (Art. 286)

"To the prejudice of the latter or a n y third p e r s o n . "

A pledged his watch to B, his roommate in a dormitory, to secure a
loan of P30. One evening, A took the watch from the drawer of B's table,
without the latter's knowledge and consent and used it when A w e n t to a
dance party. Later, when A returned and w a s about to put back the watch
in the drawer of B's table, the latter surprised him.
Is A liable under the third paragraph of Art. 316?
No, because there was no damage caused to B.

Par. 4 — By e x e c u t i n g a n y fictitious contract to the preju-

dice of another.

The crime of estafa by executing a fictitious contract to the prejudice

of another may be illustrated in the case of a person who simulates a
conveyance of his property to another, for the purpose of defrauding his
creditors. (Guevara)
The above illustration would be a case of fraudulent insolvency
(Art. 314), if the conveyance is real and made for a consideration, and not
simulated, to prejudice a creditor.
But in a case, the Supreme Court held that it was a violation of Art
314, R . P . C , even if the consideration was fictitious.
Tan Diong was a merchant in good standing in the municipality of
Kinoguitan, Misamis Oriental. Pastora Padla was his wife and Eustaquio
Baranda was the husband of the latter's niece. Prior to June, 1931, Tan Diong
had become indebted to various merchants of Cebu, and a judgment against
him had been rendered in favor of Lim Tian Ting & Co. for more than five

856
 OTHER FORMS OF SWINDLING Art. 316
By Selling, Mortgaging or Encumbering Real Property

thousand pesos. Upon this judgment, an execution had been issued, but it
realized only the sum of P198.23 from certain personal property levied upon
in Tan Diong's store. Tan Diong and his wife had previously owned various
parcels of real property in the municipality but investigation showed that
prior to the events mentioned they had transferred all to their co-defendant
Eustaquio Baranda.
The evidence amply shows that these conveyances were made for the
purpose of putting the property beyond the reach of Tan Diong's creditors,
and that the consideration mentioned in the deeds of conveyance from Tan
Diong and wife to Baranda w a s fictitious. (People vs. Tan Diong, et al., 59
Phil. 538)
Note: The accused were prosecuted for, and accused Tan Diong was
convicted of, the crime denned and penalized under Art. 523 of the old Penal
Code, (now Art. 314, R.P.C.)

Par. 5 — By a c c e p t i n g a n y c o m p e n s a t i o n for services not

rendered or for labor not performed.

The crime in this paragraph consists in accepting any compensation

given the accused who did not render the service or perform the labor for
which payment was made.
But this kind of estafa requires fraud as an important element. If
there is no fraud, it becomes payment not owing, known as solutio indebiti
under the Civil Code, with civil obligation to return the wrong payment.
It would seem that what constitutes estafa under this paragraph is
the malicious failure to return the compensation wrongfully received.
If the money in payment of a debt was delivered to a wrong person,
Art. 316, par. 5, is not applicable, in case the person who received it later
refused or failed to return it to the owner of the money, Art. 315, subdivision
Kb), is applicable.

Par. 6 — By selling, m o r t g a g i n g or e n c u m b e r i n g real pro-

perty or properties with w h i c h the offender guaran-
t e e d the fulfillment of his obligation as surety.

Elements:
1. That the offender is a surety in a bond given in a criminal or civil
action.

857
 Art. 317 SWINDLING A MINOR

2. That he guaranteed the fulfillment of such obligation with his real

property or properties.
3. That he sells, mortgages, or, in any other manner encumbers said real
property.
4. That such sale, mortgage or encumbrance is (a) without express author-
ity from the court, or (b) made before the cancellation of his bond, or (c)
before being relieved from the obligation contracted by him.

There must be d a m a g e c a u s e d under Art. 316.

A executed a bond in the sum of P I , 0 0 0 as one of the sureties for
the administrator appointed by the court in the intestate proceedings of a
deceased person. In order to qualify as such surety, A exhibited his Transfer
Certificate of Title No. 9683, covering a parcel of land. Before the cancellation
of said bond and without judicial authority, A sold the land. There was no
express finding in the judgment that the sale made by A resulted in any
actual damage to the estate of the deceased.
Held: The penalty prescribed in Art. 316 is arresto mayor in its
minimum and medium periods and a fine of not less than the value of the
damage caused and not more than three t i m e s such value. Such fine is not
merely an alternative penalty. It s e e m s clear that Art. 316 contemplates
the existence of damage as an element of the offense. The damage should
not be merely potential or speculative. The cases of U.S. vs. Goyenechea,
8 Phil. 117, and U.S. vs. Malong, 36 Phil. 8 2 1 , referring to disturbance of
property rights, are not applicable, because the property involved in those
cases belonged to the offended party, while in this case the property sold by
the accused was his own. (Castillo vs. People, 73 Phil. 489)

A r t . 3 1 7 . Swindling a minor. — A n y p e r s o n w h o , t a k i n g
advantage of the inexperience or emotions or feelings of
a minor to his detriment, shall induce him to assume any
obligation or to give any release or execute a transfer of
any property right in consideration of some loan of money,
credit, or other personal property, w h e t h e r the loan clearly
appears in the document or is s h o w n in any other form,
10
s h a l l s u f f e r t h e p e n a l t y o f arresto mayor a n d a f i n e o f a s u m
ranging from 10 to 50 per cent of the value of the obligation
contracted by the minor.

'See Appendix "A," Table of Penalties, No. 1.

858
 OTHER DECEITS Art. 318

Elements:
1. That the offender takes advantage of the inexperience or emotions or
feelings of a minor.
2. That he induces such minor (1) to assume an obligation, or (2) to give
release, or (3) to execute a transfer of any property right.
3. That the consideration is (1) some loan of money, (2) credit, or (3) other
personal property.

4. That the transaction is to the detriment of such minor.

Example:
The act of causing a minor to sign a receipt for P480 when as a matter
of fact the minor received P 4 0 0 only, coupled with the circumstance that
the minor w a s a fugitive from the house of his parents and was very badly
in need of money was sufficient to constitute estafa under this article.
(Guevara)
Note: Actual proof of deceit or misrepresentation is not essential, as
it is sufficient that the offender t a k e s advantage of the inexperience or
emotions of the minor.

Real property not included.

Element No. 3 specifies loan of money, credit or other personal
property as a consideration. Real property is not included because it cannot
be made to disappear, since a minor cannot convey real property without
judicial authority. (Albert)

What is the age of the minor?

When the Code is silent as to the age of the minor as the offended
party or victim of the offense, it is understood that he must be under 21
years, as provided in the Civil Code.

A r t . 3 1 8 . Other deceits. — T h e p e n a l t y o f arresto mayor

a n d a fine of n o t less t h a n t h e a m o u n t of t h e d a m a g e c a u s e d
and not more than twice such a m o u n t shall be imposed upon
any person w h o shall defraud or d a m a g e another by any
other deceit not mentioned in the preceding articles of this
chapter.

859
 Art. 318 OTHER DECEITS

A n y p e r s o n w h o , for profit o r g a i n , s h a l l i n t e r p r e t d r e a m s ,
m a k e forecasts, tell fortunes, or take a d v a n t a g e of t h e credulity
of the public in any other similar manner, shall suffer the
p e n a l t y o f arresto menor o r a f i n e n o t e x c e e d i n g 2 0 0 p e s o s .

Other deceits are:

1. By defrauding or damaging another by any other deceit not mentioned
in the preceding articles.
2. By interpreting dreams, by making forecasts, by telling fortunes, or by
taking advantage of the credulity of the public in any other similar
manner, for profit or gain.

Scope of this article.

Any other kind of conceivable deceit may fall under this article. As in
other cases of estafa, damage to the offended party is required.
Fraudulently obtaining a loan on the promise that realty would be
mortgaged as security for said loan, which promise w a s not fulfilled because
the borrower sold the property, would constitute estafa under Art. 541 of
the old Penal Code, now Art. 318. (U.S. vs. Mendezona, 1 Phil. 696)
A railroad conductor, who collected P I . 2 2 from a passenger and issued
a ticket for a shorter journey for which the proper charge w a s P0.18 and
pocketed the difference, is guilty of estafa under Art. 318. (U.S. vs. Reyes,
1 Phil. 249)
If the tenant, who sold the landlord's share in the harvest and failed to
deliver the proceeds of the sale to the landlord, is not liable for estafa under
Art. 315, he may be held liable under the first paragraph of Art. 318. (People
vs. Carulasdulasan, 95 Phil. 8)

Estafa by hiring and using public vehicle without money to pay

the fare.
Where the accused hired and used a vehicle and t h e n failed to pay the
fare, because he had no money, he w a s guilty of estafa under Art. 534, No. 1
of the old Penal Code, as amended by Act No. 3244, in connection with Arts.
535, No. 1, and 536 of said Code. (People vs. Santiago, 55 Phil. 266; People
vs. Sunga, 54 Phil. 210; People vs. Espino, 47 Phil. 977)

860
The deceits in this article include false pretenses and fraudulent
acts.
To give genuine copper cents the appearance of silver pesetas by
whitening them with quicksilver for the purpose of defrauding third persons
by deceiving them as to the real value of the coins, constitutes estafa under
this article and not that of counterfeiting money. (U.S. vs. Basco, 6 Phil.
110) Note: This is by fraudulent act.
A person who presents himself to another to serve as domestic helper
and obtains money in advance and later, on some pretext, leaves the service
is guilty of estafa under this article. (People vs. Panlileo, G.R. No. 35536,
April 8, 1932) Note: This is by false pretenses.

Application of Art. 318.

People vs. Ganasi

(CA., 61 O.G. 3603)

Facts: The accused incurred a debt from complainant, Dionisio

Dacanay, in the amount of P3,500.00. As security for the debt, the accused
offered to mortgage Lot No. 1 to the complainant. Pursuant to said offer, he
showed to the latter a plan of the lot, and accompanied him for an ocular
inspection of the premises. Finding the land suitable for a carpentry shop
which he intended to build, Dacanay consented to the execution of a deed
of mortgage in his favor by the accused covering Lot No. 1. When the said
obligation became due, the accused, being unable to raise the amount, decided
to sell the previously mortgaged property to the complainant, the same to
answer for everything he owed the latter. Thereafter, the complainant went
to the Register of Deeds of Benguet to have his ownership over Lot No. 1
registered. Much to his surprise, he w a s informed that what the accused
had sold w a s not Lot No. 1 but Lot No. 2 composed mostly of uneven and
hilly terrain and which w a s worthless for what he intended to use it.

Held: While the accused is correct in saying that article 316 of the
Revised Penal Code does not apply, the Solicitor General erred in stating
that the offense comes within the purview of paragraph 1(a) of Article 315.
The Solicitor General misconstrues the meaning of paragraph 1(a) of Article
315. Under the provision of law, the obligation to deliver already exists,
and the offender on making delivery has altered the substance, quantity
or quality of the thing delivered. The facts of this case before us are not
foursquare with the above-quoted provision of law. Here, the accused
deceitfully pointed to Dacanay one parcel of land, offering it as security, on
the strength of which deceit, Dacanay parted with his money. The deceit
practiced by Ganasi preceded the alienation of by Dacanay of his money. It
is therefore clear that there was no alteration substance, quantity or quality

861
Art. 318 OTHER DECEITS

in the sense intended by paragraph 1(a) of Article 315 in Ganasi's execution

of the mortgage and later of the sale.
Since the facts of this case are not covered by any of the provisions of
Articles 315, 316 and 317, the offense committed by Ganasi must perforce
come within the meaning and intendment of the blanket provisions of
paragraph 1(a) of Article 318.
Note: Another reason why Art. 315, par. 1(a) is not applicable is that
the estafa under par. 1(a) is one with abuse of confidence, while the accused
employed deceit to defraud the offended party.
 Chapter Seven
CHATTEL MORTGAGE

Art. 3 1 9 . Removal, sale or pledge of mortgaged property.

1
— T h e p e n a l t y o f arresto mayor o r a f i n e a m o u n t i n g t o t w i c e
the value of the property shall be imposed upon:

1. Any person w h o shall knowingly remove any

personal property mortgaged under the Chattel Mortgage
Law to any province or city other than the one in which it was
located at the time of the execution of the mortgage, without
the written consent of the mortgagee or his executors,
administrators, or assigns.
2. A n y mortgagor w h o shall sell or pledge personal
property already pledged, or a n y part thereof, u n d e r the
terms of the Chattel Mortgage Law, without the consent of
the mortgagee written on the back of the mortgage and noted
o n t h e r e c o r d t h e r e o f i n t h e office o f t h e r e g i s t e r o f d e e d s o f
the province where such property is located.

Object of Art. 319.

The object of the penal provisions of the Chattel Mortgage Law, from
which Art. 319 of the Revised Penal Code was taken, is to give the necessary
sanction to the provision of the statute in the interest of the public at large,
so that in all cases wherein loans are made and secured under the terms
of the statute, the mortgage debtors may be deterred from the violation of
its provisions and the mortgage creditors may be protected against loss or
inconvenience resulting from the wrongful removal or sale of the mortgaged
property. (U.S. vs. Kilayko, 32 Phil. 619)

'See Appendix "A," Table of Penalties, No. 1.

863
 Art. 319 CHATTEL MORTGAGE

Purpose of paragraph No. 1 of Art. 319.

One of the purposes of Art. 319, par. No. 1, is the protection of the
mortgagee who should be able to have a ready access to, and easy reach of,
the property subject of the mortgage. (People vs. Mata, C.A., 58 O.G. 6287)

Acts punishable under Art. 319:

1. By knowingly removing any personal property mortgaged under the
Chattel Mortgage Law to any province or city other than the one in
which it was located at the time of execution of the mortgage, without
the written consent of the mortgagee or his executors, administrators
or assigns.
2. By selling or pledging personal property already pledged, or any part
thereof, under the terms of the Chattel Mortgage Law, without the
consent of the mortgagee written on the back of the mortgage and
noted on the record thereof in the office of the register of deeds of the
province where such property is located.

The chattel mortgage must be valid and subsisting.

It is essential that there be a valid and subsisting chattel mortgage.
If the chattel mortgage does not contain an affidavit of good faith and is not
registered, it is void and cannot be the basis of a criminal prosecution under
Art. 319. (People vs. Vda. de Agoncillo, C.A., 50 O.G. 4884)

Elements of knowingly removing mortgaged personal property:

a. That personal property is mortgaged under the Chattel Mortgage
Law.
b. That the offender knows that such property is so mortgaged.
c. That he removes such mortgaged personal property to any province
or city other than the one in which it w a s located at the time of the
execution of the mortgage.
d. That the removal is permanent.
e. That there is no written consent of the mortgagee or his executors,
administrators or assigns to such removal.

Liability of person other than the mortgagor.

Is the third person who removed the property to another province,
knowing it to have been mortgaged under the Chattel Mortgage Law,
liable under this article? Yes, because the offender is any person who shall

864
 CHATTEL MORTGAGE Art. 319

knowingly remove the mortgaged personal property to another province or

city without the written consent of the mortgagee, etc.

If the chattel mortgage is not registered, there is no violation of

Art. 319; no felonious intent when transfer of personal property is
due to change of residence.
Appellant's contention is to the effect that, having filed a collection
suit based on the promissory note before the Manila Municipal Court, P.E.
Domingo & Co., Inc. is considered to have abandoned the chattel mortgage
as basis for relief, whether civil or criminal; or, in the event that such is
not the case, the chattel mortgage should be considered merely as a pledge
before its registration on January 2 , 1 9 5 2 , so that there could be no violation
thereof pursuant to Art. 319, par. 1, of the Revised Penal Code.
Held: Where the crime or offense not only disturbs the public order
but also injures the property rights of an individual, the right to file the
complaint is personal to the latter. Hence, in the case at bar, it having
abandoned a foreclosure suit against defendant-appellant, P.E. Domingo &
Co., Inc. w a s without legitimate basis to proceed against him in a criminal
case based on the s a m e cause of action.
As regards the second point of defense, although it may be true
that registration w a s not a necessary requisite to the validity of a chattel
mortgage under the old law (Act No. 1508), nevertheless, the same has been
deemed amended by the provision of Art. 2140 of the new Civil Code, which
took effect on August 30, 1950, and which now makes it indispensable
that the document be registered. This amendment definitely favors the
appellant; as such it m u s t retroact to cover an act committed before the
amendment. Thus, even in the supposition that appellant has committed a
violation of Art. 319, par. 1, of the Revised Penal Code, with the old Chattel
Mortgage Law as basis, such violation w a s no longer a crime at the time of
his prosecution on June 27, 1952, due to the advent of the new Civil Code;
and this must be so far under the laws already in force at the time of the
initiation of the criminal action, the document which became the basis of
prosecution w a s only a mere pledge, not a chattel mortgage.
The evidence shows that appellant and his family transferred their
residence to Allen, Samar, long before December, 1951. Their bringing the
piano with them was a step taken towards giving more protection to the
safety and security of their property including the piano, not only for their
own benefit but also for that of the mortgagee, P.E. Domingo & Co.
It would be absurd to suppose that in transferring their residence to
Allen, Samar, the appellant and his family should leave behind a valuable
property, such as a piano, in the care of just anybody. We believe that this
could not have been the intent of the legislature in enacting the law. In this

865
 Art. 319 CHATTEL MORTGAGE

respect, we consider the transfer of the piano to Allen, Samar, as without

any felonious intent to prejudice or cause damage upon the mortgagee.
The transfer was warranted by the family's bona fide intention to change
residence. (People vs. Mata, C.A., 58 O.G. 6287)

Example of violation of par. No. 1 of Art. 319.

The accused mortgaged his piano then in Manila to the offended
party to secure the payment of his debt to the latter in the amount of P350.
Thereafter, the accused took the piano to Calibo, Capiz, without the offended
party knowing the removal of the piano. (U.S. vs. Rimon, 23 Phil. 13)

The removal of the m o r t g a g e d personal property m u s t be c o u p l e d

with intent to d e f r a u d .
Thus, when the cabs of the Globe Taxi, Inc., mortgaged under the
Chattel Mortgage Law, were removed after notifying the mortgagee from
Manila, where they were at the time the loan w a s negotiated, to Quezon
City, because the fire department had ordered the closing of its gas station
in Manila, there was no violation of Art. 319, since the removal was justified
and there was no fraud in the transfer of the location of the garage. (People
vs. Torres, C.A., 51 O.G. 6280)

Filing a civil action for collection, not for f o r e c l o s u r e of chattel

mortgage, relieves the a c c u s e d of criminal responsibility.
If the mortgagee elected to file a suit for collection, not foreclosure,
thereby abandoning the mortgage as basis for relief, the removal of the
property to the province other than that where it w a s originally located at
the time of the mortgage is not a violation of par. No. 1 of Art. 319. (People
vs. Mata, C.A., 58 O.G. 6287)

Elements of selling or pledging personal property already p l e d g e d :

a. That personal property is already pledged under the terms of the
Chattel Mortgage Law.
b. That the offender, who is the mortgagor of such property, sells or
pledges the s a m e or any part thereof.
c. That there is no consent of the mortgagee written on the back of the
mortgage and noted on the record thereof in the office of the register
of deeds.

866
 CHATTEL MORTGAGE Art. 319

House may be subject of chattel mortgage by agreement of the

parties.
Although a house is generally considered an immovable property and
should, therefore, ordinarily be the subject of a real estate mortgage, this
will not preclude prosecution of the appellants under Article 319, paragraph
2, for as can be seen from Exhibit B itself, the appellants and Verdon
undoubtedly agreed to make the house in question the subject of the chattel
mortgage Exhibit B. (Paras, 2 Civil Code, 1963 ed., p. 9; Evangelista vs.
Abad, 36 O.G. 2913; Tomines vs. S a n J u a n , 45 O.G. 2935) And Exhibit B
having been made and registered under the terms of the Chattel Mortgage
Law, subsequent sale or pledge of the property covered by Exhibit B, without
the consent of the first mortgagee written on the back of the mortgage and
noted on the record, constitutes violation of Article 319, paragraph 2. (People
vs. Daproza, et al, C.A., 62 O.G. 5961-5964)

Second chattel mortgage is included.

Under Art. 319 of the Code, which penalizes the mortgagor who sells
or pledges a mortgaged property without the consent of the mortgagee,
within the terms of the Chattel Mortgage Law, a second mortgage is, aside
from sale or pledge, contemplated by the law, for the Spanish text uses the
word "hipoteca." (People vs. Vda. de Agoncillo, CA-G.R. No. 9113 R, April
8,1954)

The consent of the mortgagee must be (1) in writing, (2) on the

back of the mortgage, and (3) noted on the record thereof in the
office of the register of deeds.
Thus, if the consent of the mortgagee is written only on a separate
piece of paper, the sale or pledge of the property by the mortgagor is a
violation of Art. 319.

Damage is not necessary.

It will be noted that damage to the mortgagee is not essential.

Chattel mortgage may give rise to estafa by means of deceit.

People vs. Calsim

(58 O.G. 7213)
Facts: The accused obtained a loan from one Mauro Magno in the
amount of P2.500.00 payable within a period of five years, and to secure

867
 Art. 319 CHATTEL MORTGAGE

its payment, the former executed in favor of the latter a deed of chattel
mortgage assigning and conveying by way of first mortgage a two-story
house located in the City of Manila.
It appeared that the house in question had already been previously
mortgaged by its owner to a certain De la Torre. As a result, the deed of
mortgage executed by the accused in favor of Magno was refused registration
by the register of deeds. Magno demanded the return of his money from the
accused but the latter failed to do so.
Held: It is evident that the appellant obtained the loan from
complainant through false representation or deceit which is one of the
elements constituting the crime of estafa. It is apparent that the complainant
had granted the loan to appellant in the belief that the security offered w a s
good and sufficient to guarantee his investment because it w a s free from
any lien or encumbrance. Had he known that it w a s already encumbered,
the likelihood w a s that he would not have granted the loan, which proves
the fraud of which he was a victim.
But appellant contends that under the facts proven, he cannot be
guilty of estafa for there is nothing to show that complainant h a s suffered
any damage or injury as a result of the execution of the second mortgage.
This contention is untenable. While the mortgage executed by
appellant in favor of complainant is for a period of five years and that period
has not yet expired, it does not follow that complainant h a s not suffered
any damage or injury as a consequence of the fraud for indeed he h a s been
deprived of the use of his money because of such fraud while he stands to lose
it in view of his failure to obtain the registration of the deed of mortgage. It
must be noted that w h e n complainant tried to register the mortgage in the
office of the register of deeds, the latter refused registration for the apparent
reason that the same could not be registered as first encumbrance on the
property. Under the circumstances, the damage or injury that such failure
of registration has caused the complainant is apparent and constitutes one
of the elements of estafa under the law. (U.S. vs. Goyenechea, 8 Phil. 117;
U.S. vs. Malong, 36 Phil. 821)

Distinguished f r o m estafa (Art. 316) by d i s p o s i n g of e n c u m b e r e d

property.

In both offenses there is the selling of a mortgaged property. In estafa

under Art. 316, par. 2, the property involved is real property; in sale of
mortgaged property (Art. 319), it is personal property.
But to constitute the crime of estafa, it is sufficient that the real
property mortgaged be sold as free, even though the vendor m a y have
obtained the consent of the mortgagee in writing.

868
 CHATTEL MORTGAGE Art. 319

Selling or pledging of personal property already pledged or mortgaged

is committed by the mere failure to obtain the consent of the mortgagee in
writing, even if the offender should inform the purchaser that the thing sold
is mortgaged. (People vs. Alvarez, 45 Phil. 472)
The purpose of the law in Art. 319 is to protect the mortgagee; in
Art. 316, the purpose is to protect the purchaser, whether the first or the
second.
 Chapter Eight
ARSON AND OTHER CRIMES INVOLVING
DESTRUCTION

Note:
Articles 320 to 326-B are repealed or a m e n d e d by
P r e s i d e n t i a l D e c r e e N o . 1613. S e e p a g e 8 3 0 o f t h i s B o o k II.
T h e l a w s on a r s o n in force t o d a y are P.D. 1613 a n d Art.
320, a s a m e n d e d b y R e p . A c t N o . 7659. T h e p r o v i s i o n s o f
P.D. 1613 w h i c h are i n c o n s i s t e n t w i t h R A N o . 7659 ( s u c h a s
S e c t i o n 2 of P.D. N o . 1613) a r e d e e m e d r e p e a l e d .

A r t . 3 2 0 . Destructive arson. — T h e p e n a l t y o f reclusion

perpetua to d e a t h s h a l l b e i m p o s e d u p o n a n y p e r s o n w h o
1

shall burn:
1. O n e (1) o r m o r e b u i l d i n g s o r e d i f i c e s , c o n s e q u e n t
to one single act of burning, or as a result of simultaneous
burnings, or committed on several or different occasions;
2. Any building of public or private ownership,
devoted to the public in general or where people usually
gather or congregate for a definite purpose s u c h as, but
n o t l i m i t e d t o official g o v e r n m e n t a l f u n c t i o n o r b u s i n e s s ,
private transaction, commerce, trade workshop, meetings
and conferences, or merely incidental to a definite purpose
such as but not limited to hotels, motels, transient dwellings,
public conveyance or stops or terminals, regardless of
whether the offender had knowledge that there are persons
in said building or edifice at the time it is set on fire and

'The Indeterminate Sentence Law is not applicable.

870
 ARSON Art. 320
Destructive Arson

regardless also of whether the building is actually inhabited

or not.
3. Any train or locomotive, ship or vessel, airship or
airplane, d e v o t e d to t r a n s p o r t a t i o n or c o n v e y a n c e , or for
public use, entertainment or leisure.
4. Any building, factory, w a r e h o u s e installation, and
any appurtenances thereto, which are devoted to the service
of public utilities.
5. A n y b u i l d i n g the b u r n i n g of w h i c h is for the
purpose of concealing or destroying evidence of another
violation of law, or for t h e p u r p o s e of concealing bankruptcy
or defrauding creditors or to collect from insurance.
Irrespective of the application of the above enumerated
q u a l i f y i n g c i r c u m s t a n c e s , t h e p e n a l t y o f reclusion perpetua
to death shall likewise be imposed w h e n the arson is
p e r p e t r a t e d o r c o m m i t t e d b y t w o (2) o r m o r e p e r s o n s o r b y
a group of persons, regardless of w h e t h e r their purpose is
merely to burn or destroy a building or the burning merely
constitutes an overt act in the commission of another
violation of law.

T h e p e n a l t y o f reclusion perpetua t o d e a t h s h a l l a l s o b e
imposed upon any person w h o shall burn:
1. Any arsenal, shipyard, storehouse, or military
p o w e r or fireworks factory, ordinance, storehouse, archives,
or general museum of the Government.
2. In an inhabited place, any storehouse or factory of
inflammable or explosive materials.
If as a c o n s e q u e n c e of the c o m m i s s i o n of any of the acts
penalized u n d e r this Article, death results, the mandatory
p e n a l t y o f d e a t h s h a l l b e i m p o s e d . (As amended by Republic
Act No. 7659)

Destructive Arson.
Article 320 of The Revised Penal Code, as amended by RA 7659,
contemplates the malicious burning of structures, both public and private,
hotels, buildings, edifices, trains, vessels, aircraft, factories and other

871
 Art. 320 ARSON
Destructive Arson

military, government or commercial establishments by any person or group

of persons. The classification of this type of crime is known as Destructive
Arson, which is punishable by reclusion perpetua to death.
The reason for the law is self-evident: to effectively discourage and
deter the commission of this dastardly crime, to prevent the destruction of
properties and protect the lives of innocent people. Exposure to a brewing
conflagration leaves only destruction and despair in its wake; hence,
the State mandates greater retribution to authors of this heinous crime.
The exceptionally severe punishment imposed for this crime takes into
consideration the extreme danger to h u m a n lives exposed by the malicious
burning of these structures; the danger to property resulting from the
conflagration; the fact that it is normally difficult to adopt precautions
against its commission, and the difficulty in pinpointing the perpetrators;
and, the greater impact on the social, economic, security and political fabric
of the nation. (People vs. Soriano, G.R. No. 142565, July 29, 2003)

Penalty for Destructive Arson resulting in death.

If as a consequence of the commission of any of the acts penalized
under Art. 320, death should result, the mandatory penalty of death shall
be imposed (Art. 320, as amended by Rep. Act No. 7659). However, pursuant
to Rep. Act No. 9346 which prohibited the imposition of the death penalty,
the mandatory penalty of death for Destructive Arson where death e n s u e s
is now downgraded to reclusion perpetua w i t h no eligibility for parole.

Destructive Arson, distinguished from Simple Arson under PD No.

1613.
The nature of Destructive Arson is distinguished from Simple Arson
by the degree of perversity or viciousness of the criminal offender. The
acts committed under Art. 320 of 77ie Revised Penal Code constituting
Destructive Arson are characterized as heinous crimes "for being grievous,
odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant
and outrageous to the common standards and norms of decency and morality
in a just, civilized and ordered society." On the other hand, acts committed
under PD 1613 constituting Simple Arson are crimes with a lesser degree of
perversity and viciousness that the law punishes with a lesser penalty. In
other words, Simple Arson contemplates crimes with less significant social,
economic, political and national security implications than Destructive
Arson. (People vs. Soriano, G.R. No. 142565. July 29, 2003)

872
 ARSON Art. 321
Other Forms of Arson

A r t . 3 2 1 . Other forms of arson. — W h e n t h e a r s o n c o n s i s t s

in the burning of other property and under the circumstances
given hereunder, the offender shall be punished:
2
1. By reclusion temporal to reclusion perpetua:
(a) I f t h e o f f e n d e r s h a l l s e t fire t o a n y b u i l d i n g ,
farmhouse, w a r e h o u s e , hut, shelter, or vessel in port,
knowing it to be occupied at the time by one or more
persons;

(b) I f t h e b u i l d i n g b u r n e d i s a p u b l i c b u i l d i n g a n d
t h e v a l u e o f t h e d a m a g e c a u s e d e x c e e d s 6,000 p e s o s ;
(c) I f t h e b u i l d i n g b u r n e d i s a p u b l i c b u i l d i n g a n d
the purpose is to destroy evidence kept therein to be
u s e d in instituting p r o s e c u t i o n for the p u n i s h m e n t of
violators of the law, irrespective of the amount of the
damage;

(d) I f t h e b u i l d i n g b u r n e d i s a p u b l i c b u i l d i n g
and the purpose is to destroy evidence kept therein to
be used in any legislative, judicial or administrative
proceedings, irrespective of the amount of the damage:
Provided, however, T h a t i f t h e e v i d e n c e d e s t r o y e d i s t o
be u s e d a g a i n s t t h e d e f e n d a n t for t h e p r o s e c u t i o n of a n y
crime p u n i s h a b l e u n d e r existing laws, the penalty shall
be reclusion perpetua;
(e) I f t h e a r s o n s h a l l h a v e b e e n c o m m i t t e d w i t h
the intention of collecting under an insurance policy
a g a i n s t l o s s o r d a m a g e b y fire.
3
2. By reclusion temporal:
(a) If an inhabited house or any other building in
which people are accustomed to meet is set on fire, and
the culprit did not k n o w that such house or building
w a s occupied at the time, or if he shall set fire to a
moving freight train or motor vehicle, and the value of
t h e d a m a g e c a u s e d e x c e e d s 6,000 p e s o s ;

'See Appendix "A," Table of Penalties, No. 32.

3
See Appendix "A," Table of Penalties, No. 28.

873
 Art. 321 ARSON
Other Forms of Arson

(b) If the value of the damage caused in paragraph

(b) of the preceding subdivision does not e x c e e d 6,000
pesos;
(c) If a farm, sugar mill, cane mill, mill central,
bamboo grooves, or any similar plantation is set on fire,
and the damage c a u s e d e x c e e d s 6,000 pesos; and
(d) If grain fields, pasture lands, or forests, or
plantings are set on fire, and the damage caused e x c e e d s
6,000 pesos.
3. By prision mayor:*
(a) If the value of t h e d a m a g e c a u s e d in the c a s e s
mentioned in paragraphs (a), (c) a n d (d) in t h e next
preceding subdivision does not e x c e e d 6,000 pesos;
(b) If a building not u s e d as a d w e l l i n g or place of
assembly, located in a p o p u l a t e d place, is set on fire, a n d
the damage c a u s e d e x c e e d s 6,000 pesos;
4. By prision correccional in its m a x i m u m period to
5
prision mayor in its m e d i u m period:
(a) If a building u s e d as a d w e l l i n g l o c a t e d in an
uninhabited place i s s e t o n f i r e and t h e d a m a g e c a u s e d
e x c e e d s 1,000 pesos;
(b) If the v a l u e of t h e d a m a g e c a u s e d in t h e c a s e
m e n t i o n e d in paragraphs (c) a n d (d) of s u b d i v i s i o n 2 of
this article d o e s not e x c e e d 200 p e s o s .
5. By prision correccional in its m e d i u m period to
6
prision mayor in its m i n i m u m period, w h e n t h e d a m a g e
caused is over 200 p e s o s but d o e s n o t e x c e e d 1,000 p e s o s ,
and t h e property referred to in p a r a g r a p h (a) of t h e n e x t
preceding subdivision i s set o n f i r e ; b u t w h e n t h e v a l u e o f
such property does not e x c e e d 200 p e s o s , t h e p e n a l t y n e x t
lower in degree t h a n that prescribed in this s u b d i v i s i o n shall
be imposed.

4
See Appendix "A," Table of Penalties, No. 19.
5
See Appendix "A," Table of Penalties, No. 18.
6
See Appendix "A," Table of Penalties, No. 16.

874
 ARSON Art. 322
Other Cases of Arson

6. T h e p e n a l t y o f prision correccional i n i t s m e d i u m
7
and m a x i m u m periods, if the damage caused in the case
m e n t i o n e d in p a r a g r a p h (b) of s u b d i v i s i o n 3 of t h i s a r t i c l e
d o e s n o t e x c e e d 6,000 p e s o s b u t i s o v e r 200 p e s o s .

7. T h e p e n a l t y o f prision correccional i n i t s m i n i m u m
8
and medium periods, if the damage caused in the case
m e n t i o n e d i n p a r a g r a p h (b) o f s u b d i v i s i o n 3 o f t h i s a r t i c l e
does not e x c e e d 200 pesos.
9
8. T h e p e n a l t y o f arresto mayor a n d a fine r a n g i n g
from fifty to one hundred per centum of the damage caused
shall be imposed, w h e n the property burned consist of grain
fields, pasture lands, forests, or plantations w h e n the value
o f s u c h p r o p e r t y d o e s n o t e x c e e d 2 0 0 p e s o s . (As amended b y
Rep. Act No. 5467, approved May 12,1969)

A r t . 3 2 2 . Cases of arson not included in the preceding

articles. — C a s e s o f a r s o n n o t i n c l u d e d i n t h e n e x t p r e c e d i n g
articles shall be punished:
1. B y arresto mayor i n its m e d i u m and m a x i m u m
1 0
periods, when the damage caused does not exceed 50
pesos;
2. B y arresto mayor i n i t s m a x i m u m p e r i o d t o prision
correccional i n i t s m i n i m u m p e r i o d , 1 1
when the damage
c a u s e d i s o v e r 5 0 p e s o s b u t d o e s n o t e x c e e d 200;
3. B y prision correccional i n i t s m i n i m u m a n d m e d i u m
1 2
periods, if the d a m a g e caused is over 200 pesos but does not
e x c e e d 1,000; a n d
4. B y prision correccional i n i t s m e d i u m a n d m a x i m u m
1 3
periods, i f i t i s o v e r 1,000 p e s o s .

7
See Appendix "A," Table of Penalties, No. 15.
"See Appendix "A," Table of Penalties, No. 14.
9
See Appendix "A," Table of Penalties, No. 1.
10
See Appendix "A," Table of Penalties, No. 6.
"See Appendix "A," Table of Penalties, No. 8.
12
See Appendix "A," Table of Penalties, No. 14.
13
See Appendix "A," Table of Penalties, No. 15.

875
 Arts. 323-324 ARSON
Arson of Property of Small Value
Crimes Involving Destruction

A r t . 3 2 3 . Arson of property of small value. — T h e a r s o n

of any uninhabited hut, storehouse, barn, shed or any
other property the value of which does not exceed 25 pesos,
committed at a time or under circumstances w h i c h clearly
e x c l u d e all d a n g e r o f t h e fire s p r e a d i n g , s h a l l n o t b e p u n i s h e d
by the penalties respectively prescribed in this chapter,
but in accordance with the damage caused and under the
1 4
provisions of the following chapter.

A r t . 3 2 4 . Crimes involving destruction. — A n y p e r s o n w h o

shall cause destruction by m e a n s of explosion, discharge of
electric current, inundation, sinking or stranding of a vessel,
intentional damaging of the engine of said vessel, taking up
the rails from a railway track, maliciously c h a n g i n g railway
signals for t h e safety of m o v i n g trains, d e s t r o y i n g t e l e g r a p h
wires and telegraph posts, or those of any other system, and,
in general by using any other agency or means of destruction
as effective as those above enumerated, shall be punished
15
b y reclusion temporal i f t h e c o m m i s s i o n h a s e n d a n g e r e d
t h e s a f e t y o f a n y p e r s o n ; o t h e r w i s e , t h e p e n a l t y o f prision
16
mayor s h a l l b e i m p o s e d .

Elements of crimes involving destruction:

1. The offender causes destruction.
2. Destruction is caused by any of the following means:
a. explosion
b. discharge of electric current
c. inundation, sinking or stranding of a vessel, or intentional
damaging of the engine of said vessel
d. taking up the rails from a railway track
e. maliciously changing railway signals for the safety of moving
trains

1 4
S e e Article 329.
, 5
S e e A p p e n d i x "A," T a b l e o f P e n a l t i e s , N o . 2 8 .
1 6
S e e A p p e n d i x "A," T a b l e o f P e n a l t i e s , N o . 1 9 .

876
 ARSON Arts. 325-326
Burning One's Property to Commit Arson Art. 326-A
Burning One's Property to Commit Prejudice
When Death Resulted Evidence of Arson
f. destroying telegraph wires and telegraph posts, or those of any
other system
g. using any other agency or m e a n s of destruction as effective as
those above enumerated

Crimes Involving Destruction, as Terrorism.

Under RA No. 9372 ( H u m a n Security Act of 2007), approved on
March 6, 2007, a person who commits an act punishable under Art. 324
(Crimes Involving Destruction) thereby sowing and creating a condition of
widespread and extraordinary fear and panic among the populace, in order
to coerce the government to give in to an unlawful demand shall be guilty
of the crime of terrorism, and shall suffer the penalty of forty (40) years of
imprisonment, without the benefit of parole.

Art. 325. Burning one's own property as a means to com-

mit arson. — Any p e r s o n guilty of arson or causing great
destruction of property b e l o n g i n g to a n o t h e r shall suffer the
penalty prescribed in this chapter, e v e n t h o u g h he shall have
set fire to or d e s t r o y e d h i s o w n property for the purpose of
committing t h e crime.

Art. 326. Setting fire to property exclusively owned by

the offender. — If t h e property b u r n e d shall be t h e exclusive
property of the offender, he shall be p u n i s h e d by arresto
mayor in its m a x i m u m period to prision correccional in its
17
minimum period, if t h e arson shall have b e e n committed
for the purpose of defrauding or c a u s i n g damage to another,
or prejudice shall actually have b e e n caused, or if the thing
burned shall have b e e n a building in an inhabited place. (As
amended by Rep. Act No. 5467)

Art. 326-A. In cases where death resulted as a consequence

of arson. — If death resulted as a consequence of arson

17
See Appendix "A," Table of Penalties, No. 8.

877
 Art. 326-B ARSON
Prima Facie of Evidence of Arson

committed on any of the properties and under any of the

circumstances mentioned in the preceding articles, the court
shall impose the death penalty.

Art. 326-B. Prima facie evidence of arson. — Any of the

following circumstances shall constitute prima facie evidence
of arson:
1. If after the fire, are found materials or substances
soaked in gasoline, kerosene, petroleum, or other inflam-
mables, or any mechanical, electrical, chemical, or electronic
contrivance designed to start a fire, or a s h e s or traces of any
of the foregoing;
2. That substantial amount of inflammable substance
or materials w e r e stored w i t h i n t h e b u i l d i n g not n e c e s s a r y
in the course of t h e defendant's business; a n d
3. That the fire started s i m u l t a n e o u s l y in m o r e t h a n
one part of t h e b u i l d i n g or locale u n d e r c i r c u m s t a n c e s
that cannot normally be d u e to accidental or u n i n t e n t i o n a l
causes: Provided, however, That at least o n e of t h e following is
present in any of t h e t h r e e a b o v e - m e n t i o n e d circumstances:
(a) That t h e total i n s u r a n c e carried o n t h e b u i l d i n g
and/or goods is more t h a n 80 p e r c e n t of t h e v a l u e of
s u c h building and/or g o o d s at t h e time of t h e fire;
(b) That t h e d e f e n d a n t after t h e fire h a s p r e s e n t e d
a fraudulent claim for loss.
18
The penalty of prision correccional shall be i m p o s e d
on one w h o plants t h e articles above-mentioned, in order to
secure a conviction, or as a m e a n s of extortion or coercion.
(As amended by Rep. Act No. 5467, approved May 12,1969)

'"See Appendix "A," Table of Penalties, No. 1 0 .

878
 ARSON Sees. 1-3
Presidential Decree No. 1613

P R E S I D E N T I A L D E C R E E N O . 1613
AMENDING THE LAW ON A R S O N

S E C T I O N 1. Arson. — A n y p e r s o n w h o b u r n s o r s e t s
f i r e t o t h e p r o p e r t y o f a n o t h e r s h a l l b e p u n i s h e d b y Prision
19
Mayor.
The same penalty shall be imposed w h e n a person sets
fire to his o w n property under circumstances which expose
to d a n g e r t h e life or p r o p e r t y of a n o t h e r .

S E C . 2 . Destructive Arson. — T h e p e n a l t y o f Reclusion

20
Temporal i n i t s m a x i m u m p e r i o d t o Reclusion Perpetua s h a l l
be imposed if the property b u r n e d is any of the following:
1. Any ammunition factory and other establishment
where explosives, inflammable or combustible materials are
stored.

2. A n y archive, m u s e u m , w h e t h e r public or private, or

any edifice devoted to culture, education or social services.
3. Any church or place of worship or other building
where people usually assemble.
4. A n y train, airplane or a n y aircraft, vessel or
watercraft, or c o n v e y a n c e for transportation of persons or
property.
5. A n y b u i l d i n g w h e r e e v i d e n c e is kept for u s e in
a n y l e g i s l a t i v e , j u d i c i a l , a d m i n i s t r a t i v e o r o t h e r official
proceeding.
6. Any hospital, hotel, dormitory, lodging house,
housing tenement, shopping center, public or private market,
theater or movie house or any similar place or building.
7. A n y building, w h e t h e r u s e d as a dwelling or not,
situated in a populated or congested area.
S E C . 3 . Other Cases of Arson. — T h e p e n a l t y o f Reclusion
21
Temporal t o Reclusion Perpetua s h a l l b e i m p o s e d if t h e
property burned is any of the following:

19
See Appendix "A," Table of Penalties, No. 19.
20
See Appendix "A," Table of Penalties, No. 34.
21
See Appendix "A," Table of Penalties, No. 32.

879
 Sees. 4-6 ARSON
Presidential Decree No. 1613

1. A n y b u i l d i n g u s e d as offices of t h e g o v e r n m e n t or
any of its agencies;
2. Any inhabited house or dwelling;
3. A n y industrial establishment, shipyard, oil well or
m i n e shaft, platform or tunnel;
4. Any plantation, farm, pasture land, growing crop,
g r a i n field, o r c h a r d , b a m b o o g r o v e o r forest;
5. A n y rice mill, s u g a r mill, c a n e mill or mill central;
and
6. Any railway or bus station, airport, wharf or
warehouse.
SEC. 4. Special Aggravating Circumstances in Arson.
— The penalty in any case of arson shall be imposed in its
maximum period:

1. If committed w i t h intent to gain;

2. If c o m m i t t e d for the benefit of another;

3. If the offender is motivated by spite or hatred
towards the owner or occupant of the property burned;
4. If c o m m i t t e d by a s y n d i c a t e .

The offense is committed by a syndicate if it is p l a n n e d

o r c a r r i e d o u t b y a g r o u p o f t h r e e (3) o r m o r e p e r s o n s .

S E C . 5. Where Death Results From Arson. — If b y r e a s o n

of or on the occasion of arson death results, the penalty of
Reclusion Perpetua to death 2 2
shall be imposed.

S E C . 6. Prima Facie Evidence of Arson. — A n y of

t h e f o l l o w i n g c i r c u m s t a n c e s s h a l l c o n s t i t u t e prima facie
evidence of arson:

1. I f t h e fire s t a r t e d s i m u l t a n e o u s l y i n m o r e t h a n o n e
part of the building or establishment.

2. If substantial amount of flammable substances or

materials are stored within the building not of the offender
n o r for h o u s e h o l d use.

!
See Appendix "A," Table of Penalties, No. 37.

880
 ARSON Sees. 7-9
Presidential Decree No. 1613

3. If gasoline, kerosene, petroleum or other flammable

or combustible substances or materials soaked therewith or
c o n t a i n e r s thereof, or a n y m e c h a n i c a l , electrical, chemical,
or electronic contrivance designed to start a fire, or ashes
or traces of any of the foregoing are found in the ruins or
premises of the burned building or property.
4. If the b u i l d i n g or property is i n s u r e d for subs-
tantially m o r e t h a n its actual v a l u e at t h e time of the issuance
of the policy.
5. If during the lifetime of the corresponding fire
insurance policy more than two fires have occurred in the
same or other premises o w n e d or under the control of the
offender and/or insured.

6. If shortly b e f o r e t h e fire, a substantial p o r t i o n of

the effects insured a n d stored in a building or property had
been withdrawn from the premises except in the ordinary
course of business.
7. If a d e m a n d for m o n e y or other valuable consi-
d e r a t i o n w a s m a d e before t h e f i r e i n e x c h a n g e for the
desistance of the offender or for the safety of the person or
property of the victim.
S E C . 7 . Conspiracy to Commit Arson. — C o n s p i r a c y t o
c o m m i t a r s o n s h a l l b e p u n i s h e d b y Prision Mayor i n i t s m i n i -
2 3
m u m period.
S E C . 8. Confiscation of Object of Arson. — T h e b u i l d i n g
w h i c h is the object of arson including the land on which it is
situated shall be confiscated and escheated to the State, unless
the owner thereof can prove that he has no participation
in nor knowledge of such arson despite the exercise of due
diligence on his part.
S e c . 9 . Repealing Clause. — T h e p r o v i s i o n s o f A r t i c l e s
320 t o 326-B o f t h e R e v i s e d P e n a l C o d e a n d all l a w s , e x e c u t i v e
orders, rules a n d regulations, or parts thereof, inconsistent
with the provisions of this decree are hereby repealed or
amended accordingly.

"See Appendix "A," Table of Penalties, No. 20.

881
Sec. 10 ARSON
Presidential Decree No. 1613

S e c . 1 0 . Effectivity. — T h i s D e c r e e s h a l l t a k e e f f e c t
immediately u p o n publication thereof at least once in a
newspaper of general circulation.
Done in the City of Manila, this 7th day of March,
nineteen hundred and seventy-nine.

Arson, defined.
Arson is denned as the malicious destruction of property by fire.

Kinds of arson.
1. Simple Arson (Sec. 1, P.D. No. 1613)
2. Destructive Arson (Art. 320, as amended by R.A. No. 7659)
3. Other cases of arson (Sec. 3, P.D. No. 1613)

PD 1613 is the governing law for Simple Arson.

PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code
remains the governing law for Simple Arson. This decree contemplates the
malicious burning of public and private structures, regardless of size, not
included in Art. 320, as amended by RA 7659, and classified as other cases of
arson. These include houses, dwellings, government buildings, farms, mills,
plantations, railways, bus stations, airports, wharves and other industrial
establishments. Although the purpose of the law on Simple Arson is to
prevent the high incidence of fires and other crimes involving destruction,
protect the national economy and preserve the social, economic and political
stability of the nation, PD 1613 tempers the penalty to be meted to offenders.
This separate classification of Simple Arson recognizes the need to lessen
the severity of punishment commensurate to the act or acts committed,
depending on the particular facts and circumstances of each case. (People
vs. Soriano, G.R. No. 142565, July 29, 2003]

Attempted, frustrated and consummated arson.

1. A person, intending to burn a wooden structure, collects some rags,
soaks them in gasoline and places t h e m beside the wooden wall of the
building. When he is about to light a match to set fire to t h e rags, he
is discovered by another who chases h i m away.
The crime committed is attempted arson, because the offender
commences the commission of the crime directly by overt acts (placing

882
 ARSON Art. 326-B
Presidential Decree No. 1613

the rags soaked in gasoline beside the wooden wall of the building and
lighting a match) but he does not perform all the acts of execution (the
setting of fire to the rags) due to the timely intervention of another
who chases away the offender.
2. If that person is able to light or set fire to the rags but the fire was put
out before any part of the building w a s burned, it is frustrated. (U.S
vs. Valdez, 39 Phil. 240)
3. But if before the fire w a s put out, it had burned a part of the building,
it is consummated.
Any charring of the wood of a building, whereby the fiber of
the wood is destroyed, is sufficient. It is not necessary that the wood
should be ablaze. (4 Am. Jur. 88-89)
And the mere fact that a building is scorched or discolored by
h e a t is not sufficient to constitute consummated arson.
Setting fire to the contents of a building constitutes the
consummated crime of setting fire to a building, even if no part of the
building was burned. (U.S. vs. Go Foo Suy, 25 Phil. 187)

In attempted arson, it is not necessary that there be a fire.

It is not necessary that there be a fire before the crime of attempted
arson can be committed, notwithstanding the ruling in the case of People vs.
Garcia, 49 O.G. 558, where a blaze having been started, it was held that the
crime committed w a s attempted arson. The law does not lay down any hard
and fast rule insofar as attempted arson, or any attempted crime for that
matter, is concerned. The peculiar facts and circumstances of a particular
case should carry more weight in the decision of the case. In the case of
People vs. Garcia, the action of the defendant to set fire to the contents of
the building was prompted not by a desire to burn the hospital but to give
vent to his anger against the head of the Provincial Hospital with whom he
had a heated discussion. There were no prior acts by the defendant in that
case which would tend to show a determination or resolution to burn the
building. In the case at bar, however, there is abundant evidence manifesting
the defendant's desire to burn the building. He adhered resolutely to that
desire by performing acts that would carry into effect his plan.
Furthermore, reviewing the scant decisions of the Supreme Court on
the crime of arson, this Court noted that the presence of blaze does not
necessarily lead to the crime of attempted arson. On the contrary, when
there is fire, the Supreme Court has held invariably that crime committed
is either frustrated arson or consummated arson, never attempted. Thus,
in the case of U.S. vs. Go Foo Suy, 25 Phil. 187, it was held that setting fire
to the contents of a building constitutes the consummated crime of setting

883
 Art. 326-B ARSON
Presidential Decree No. 1613

fire to a building, even if no part of the building was burned; in the case of
U.S. vs. Valdes, 39 Phil. 240, if the defendant has started a blaze by burning
rags soaked with gasoline placed near the building but the fire is put out before
any part of the building commences to burn, the crime is frustrated arson; and
in the case of People vs. Hernandez, 54 Phil. 122, if a part of the building
commences to burn, the crime is consummated arson, however small is the
portion of the building burned. (People vs. Go Kay, C.A., 54 O.G. 2225)

Burning of Houses, considered Simple Arson under PD 1613.

Where the properties burned by accused-appellant are specifically
described as houses, contemplating inhabited houses or dwellings under PD
1613 and the descriptions as alleged in the Information particularly refer to
the structures as houses rather than as buildings or edifices, the applicable
law is Sec. 3, par. 2, of PD 1613, and not Art. 320, par. 1 of the Revised
Penal Code. In case of ambiguity in construction of penal laws, it is well-
settled that such laws shall be construed strictly against the government,
and liberally in favor of the accused. (People vs. Soriano, G.R. No. 142565,
July 29, 2003]

Sec. 3, par. 2, P.D. No. 1613.

If the property burned is an inhabited house or dwelling, it is not
required that the house be occupied by one or more persons and the offender
knew it w h e n the house w a s burned.

There is no complex crime of arson with homicide.

P.D. No. 1613 provides that if by reason of or on the occasion of arson,
death results, the penalty of reclusion perpetua to death shall be imposed.
The crime of homicide is absorbed.
Considering that PD 9346 prohibits the imposition of the death
penalty, only the penalty of reclusion perpetua shall be imposed for arson
resulting in death.

Prima face evidence of arson.

Any of the seven (7) circumstances enumerated in Sec. 6 of P.D. No.
1613 shall constitute prima face evidence of arson.
Standing alone, unexplained or uncontradicted, any of those circums-
tances is sufficient to establish the fact of arson.

884
 ARSON Art. 326-B
Presidential Decree No. 1613

Arson under P.D. 1613, as Terrorism.

Under Republic Act No. 9372, otherwise known as the Human
Security Act of 2007, approved on March 6, 2007, a person who commits
an act punishable as Arson under P.D. 1613 thereby sowing and creating
a condition of widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to an unlawful demand
shall be guilty of the crime of terrorism, and shall suffer the penalty of forty
(40) years of imprisonment, without the benefit of parole. (Sec. 3)
 Chapter Nine
MALICIOUS MISCHIEF

Malicious mischief, defined.

Malicious mischief is the willful damaging of another's property for
the sake of causing damage due to hate, revenge or other evil motive.

What are the crimes classified as malicious mischief?

They are:
1. Special cases of malicious mischief. (Art. 328)
2. Other mischiefs. (Art. 329)
3. Damage and obstruction to m e a n s of communication. (Art. 330)
4. Destroying or damaging statues, public m o n u m e n t s or paintings.
(Art. 331)

A r t . 3 2 7 . Who are liable for malicious mischief. — A n y

person w h o shall deliberately cause to the property of
another any damage not falling within the terms of the next
preceding chapter, shall be guilty of malicious mischief.

Elements of malicious mischief:

1. That the offender deliberately caused damage to t h e property of
another.
2. That such act does not constitute arson or other crimes involving
destruction.
3. That the act of damaging another's property be committed merely for
the sake of damaging it.
Note: This third element presupposes that the offender acted due to
hate, revenge or other evil motive.

886
 WHO ARE LIABLE FOR MALICIOUS MISCHIEF Art. 327

"Shall deliberately cause to the property of another any damage."

This phrase m e a n s that the offender should act under this impulse of
a specific desire to inflict injury to another.
It follows that, in the very nature of things, malicious mischief cannot
be committed through negligence, since culpa and malice are essentially
incompatible. (Quizon vs. Justice of the Peace, et al., 97 Phil. 342)

Killing the cow of another as an act of revenge is malicious

mischief.
When the defendants were asked by the offended party why they
butchered his cow, one of t h e m replied: "We butchered it because the cow
entered our property," and invited the offended party to come close and
settle the matter. There being no sufficient evidence that the intention of the
defendants was to divide the meat among themselves, it w a s held that the
killing of the cow w a s an act of revenge and, therefore, the crime committed
was that of malicious mischief. (People vs. Valiente, et al., CA-G.R. No.
9442-R, Dec. 29, 1953)

Is it malicious mischief if the act of damaging another's property

was inspired, not by hatred or by a desire for revenge, but by the
mere pleasure of destroying?
Yes. Malicious mischief embraces those attempts against another's
property inspired sometimes by hatred or a desire for revenge and sometimes
by the mere pleasure of destroying. (See People vs. Siddayao, C.A., 53 O.G.
8163)
Thus, if the only evidence of the prosecution was that the defendant
shot two pigs belonging to another and that the motive for the defendant's
shooting at the pigs w a s that the animals were then loose inside his rice
plantation, the defendant is not guilty of malicious mischief because he was
not prompted by hatred or a desire for revenge when he shot the pigs. Nor
did he shoot them for the mere pleasure of destroying. The Court found that
when Siddayao saw the two pigs causing damage to his farm, he borrowed
the rifle of Pascual Garcia, who was then with him, and fired twice which
wounded the two pigs. At most, he might have incurred liability of purely
civil in nature.

If no malice, only civil liability.

If there is no malice in causing the damage, the obligation to repair or
pay for damages is only civil. (Art. 2176, C.C.)

887
 Art. 327 WHO ARE LIABLE FOR MALICIOUS MISCHIEF

Example:
A cut small coconut trees on a disputed land to clear it and for the
purpose of cultivating that portion of the land. In view of his purpose, A is
not liable for malicious mischief. He did not deliberately cause damage to
the property of another, since the land is disputed and he believed that the
coconut trees belonged to him.
But when the defendants, one of them and the father of the other
were former occupants of the land, cut 80 coconut shoots, which were
producing tuba, without having any right to do so, and that they occasioned
thereby serious damage to the interests of those who planted the trees, the
defendants executed this act, prompted, doubtless, by grievance, hate, or
revenge, because the injured party had leased the land from the hacienda
after one of them and the father of the other defendant had been expelled
from said land by the owners. When the injured party tried to stop the
damage they were causing to the property, the defendants threatened her
and followed her as far as the road. In this case, the defendants are not only
civilly, but also criminally, liable. (U.S. vs. Gerale, 4 Phil. 218)
The crime of damage to property (malicious mischief) is not determined
solely by the mere act of inflicting injury upon the property of a third person,
but it must be shown that the act had for its object, the injury of the property
merely for the sake of damaging it. (U.S. vs. Gerale, supra)

Meaning of damage in malicious mischief.

Damage m e a n s not only loss but also diminution of w h a t is a man's
own. Thus, damage to another's house includes defacing it. (People vs.
Asido, et al, C.A., 59 O.G. 3646)

It is theft when there is intent to gain.

If after damaging the property, the offender removes or m a k e s use of
the fruits or objects of the damage, it is theft. (Art. 308, par. 2)

Damaging of property must not result from crime.

This article does not refer to mischief resulting from a crime, such as
the damages caused by a robber in breaking the window, for the reason that
such damages are mere incidents of the crime of robbery, and as such m a y
give rise only to civil liability. (Guevara)
Also, when the accused chased his opponent who ran to the kitchen of
the offended party, and tumbled some tables on his way, thereby breaking
various objects, he w a s not guilty of malicious mischief, because he did
not do it with deliberate or only purpose of causing damages. (People vs.
Collantes, CA-G.R. No. 12086, Feb. 24, 1955)

888
 SPECIAL CASES OF MALICIOUS MISCHIEF Art. 328

May a person charged with malicious mischief be found guilty of

damage to property through reckless imprudence?
Yes, because reckless imprudence is not a crime in itself. It is simply
a way of committing it. The allegation in the information that the accused
acted willfully, maliciously, unlawfully and criminally, not being objected to,
includes the charge that he acted with negligence. Negligence is punishable
when it results in a crime, as in this case. (People vs. Falier, 67 Phil. 529)

What are the cases of malicious mischief as regards the means

employed and the nature of the damaged properties?
They are:
1. Special cases of malicious mischief. (Art. 328)
2. D a m a g e and obstruction to m e a n s of communications. (Art.
330)
3. Destroying or damaging statues, public monuments or paintings.
(Art. 331)

Art. 3 2 8 . Special cases of malicious mischief. — Any

person w h o shall cause d a m a g e to obstruct the performance
of public functions, or using any poisonous or corrosive
substance; or spreading any infection or contagion among
cattle; or w h o c a u s e s d a m a g e to the property of the National
M u s e u m or National Library, or to any archive or registry,
waterworks, road, promenade, or any other thing used in
c o m m o n by the public shall be punished:
1. B y prision correccional i n i t s m i n i m u m a n d m e d i u m
1
periods, i f t h e v a l u e o f t h e d a m a g e c a u s e d e x c e e d s 1,000
pesos;
2
2. B y arresto mayor, i f s u c h v a l u e d o e s n o t e x c e e d t h e
above-mentioned amount but is over 200 pesos; and
3. B y arresto menor, i f s u c h v a l u e d o e s n o t e x c e e d 2 0 0
pesos.

'See Appendix "A," Table of Penalties, No. 14.

•'See Appendix "A," Table of Penalties, No. 1.

889
 Art. 329 OTHER MISCHIEFS

The special cases of malicious mischief are:

1. Causing damage to obstruct the performance of public functions.
2. Using any poisonous or corrosive substance.
3. Spreading any infection or contagion among cattle.
4. Causing damage to the property of the National Museum or National
Library, or to any archive or registry, waterworks, road, promenade,
or any other thing used in common by the public.

These are called qualified malicious mischief.

The cases of malicious mischief enumerated in this article are the so-
called qualified malicious mischief.

First case of qualified malicious mischief d i s t i n g u i s h e d f r o m s e d i -

tion.
This mischief mentioned in the first clause (No. 1) is to be distinguished
from sedition (Art. 139), in that the element of public and tumultuous
uprising is not present in this crime.
The two offenses are, however, similar in that there is present in the
commission of the offense, the intent to obstruct the performance of public
functions.

Using p o i s o n o u s or corrosive s u b s t a n c e .
The poisonous substance may be used to kill large cattle or other
animals of the offended party. The corrosive substance m a y be used to cause
rust on a machine or to destroy property through the action of chemicals.

A r t . 3 2 9 . Other mischiefs. — T h e m i s c h i e f s n o t i n c l u d e d
in the next preceding article shall be punished:
1. B y arresto mayor i n its medium and maximum
3
periods, if the value of the damage caused exceeds 1,000
pesos;

2. B y arresto mayor i n i t s minimum and medium

4
periods, if such value is over 200 pesos but does not e x c e e d
1,000 p e s o s ; a n d

3
See Appendix "A," Table of Penalties, No. 6.
4
See Appendix "A," Table of Penalties, No. 5.

890
 DAMAGE AND OBSTRUCTION TO MEANS Art. 330
OF COMMUNICATION

3. B y arresto menor o r f i n e o f n o t l e s s t h a n t h e v a l u e
of the d a m a g e c a u s e d a n d not m o r e than 200 pesos, if the
amount involved does not exceed 200 pesos or cannot be
e s t i m a t e d . (As amended by Com. Act No. 3999)

Other mischiefs should not be included in Art. 328 — basis of

penalty.
Mischiefs not included in Art. 328 are punished according to the value
of the damage caused.
Even if the amount involved cannot be estimated, the penalty of arresto
menor or fine not exceeding P 2 0 0 is fixed by law.
A groom who allowed a horse under his care to die of hunger or a
servant who released a bird from the cage, as an act of hate or revenge
against its owner, is guilty of malicious mischief and the penalty is based on
the value of the horse or bird.

Killing cows of another as an act of revenge.

The cows of B caused destruction to the plants of A. As an act of
revenge, A and his t e n a n t s killed said cows.
Held: The crime being committed out of hate and revenge, is that of
malicious mischief penalized in Art. 329, par. 3. (People vs. Valiente, et al.,
CA-G.R. No. 9442-R, Dec. 29, 1953)

Scattering human excrement in public building is other mischief

— value of damage cannot be estimated.
When several persons scattered coconut remnants which contained
human excrements on the stairs and floor of the municipal building,
including its interior, the crime committed is malicious mischief under Art.
329. (People vs. Dumlao, 38 O.G. 3715)

A r t . 3 3 0 . Damage and obstruction to means of commu-

nication. — T h e p e n a l t y o f prision correccional i n i t s m e d i u m
5
and m a x i m u m periods shall be imposed upon any person
w h o shall d a m a g e any railway, telegraph or telephone lines.

5
See Appendix "A," Table of Penalties, No. 15.

891
 Art. 330 DAMAGE AND OBSTRUCTION TO MEANS
OF COMMUNICATION

If the damage shall result in any derailment of cars,

c o l l i s i o n , o r o t h e r a c c i d e n t , t h e p e n a l t y o f prision mayor
shall be imposed, w i t h o u t prejudice to the criminal liability
of the offender for the other c o n s e q u e n c e s of his criminal
act.
For the purpose of the provisions of this article, the
electric wires, traction cables, signal system, and other
things pertaining to railways, shall be d e e m e d to constitute
an integral part of a railway system.

Damage and obstruction to means of communication.

Damage and obstruction to m e a n s of communication is committed by
damaging any railway, telegraph or telephone lines.

Circumstance qualifying the offense.

If the damage shall result in any derailment of cars, collision, or other
accident, a higher penalty shall be imposed.

"If the damage shall result in any derailment of cars, collision, or

other accident."
The derailment or the collision of cars should not have been purposely
sought for by the offender. It m u s t have resulted from damage to railway,
telegraph or telephone lines.

It should not be removing rails from railway track to cause des-

truction.

If the rails are removed from a railway track to cause destruction, the
act constitutes crime involving destruction under Art. 324.
The object of the offender in Art. 330 is merely to cause damage;
whereas in Art. 324, his object is to cause destruction.

Not applicable when the telegraph or telephone lines do not pertain

to railways.

Art. 330 applies to person who cuts telegraph or telephone wires. But
the telegraph or telephone lines m u s t pertain to a railway system. It would
seem that cutting the telephone wires or those for transmission of electric
light or power, not pertaining to railways is not covered by Art. 330.

892
 DESTROYING STATUES, ETC Art. 331

The second paragraph of Art. 330 speaks of damage to telegraph or

telephone lines resulting in derailment of cars, collision, etc.

When a person or persons are killed.

What crime is committed if as a result of the damage caused to railway,
certain passengers of the train are killed?
It depends. Art. 330 says "without prejudice to the criminal liability of
the offender for other consequences of his criminal act." If there is no intent
to kill, it is "damages to m e a n s of communication" with homicide because of
the first part of Art. 4 and Art. 48. If there is intent to kill, and damaging the
railways was the m e a n s to accomplish the criminal purpose, it is murder.
Art. 248, par. 3, says that murder is committed also "by means of
derailment," meaning that it is the m e a n s to kill another.

Art. 3 3 1 . Destroying or damaging statues, public

monuments, or paintings. — A n y p e r s o n w h o s h a l l d e s t r o y
or damage statues or any other useful or ornamental public
m o n u m e n t s , s h a l l s u f f e r t h e p e n a l t y o f arresto mayor i n
i t s m e d i u m p e r i o d t o prision correccional i n i t s m i n i m u m
6
period.
Any person w h o shall destroy or d a m a g e any useful
or o r n a m e n t a l p a i n t i n g of a public n a t u r e shall suffer the
p e n a l t y o f arresto menor o r a f i n e n o t e x c e e d i n g 2 0 0 p e s o s ,
or b o t h s u c h fine a n d i m p r i s o n m e n t , in t h e discretion of t h e
court.

"See Appendix "A," Table of Penalties, No. 7.

893
 Chapter Ten
EXEMPTION FROM CRIMINAL LIABILITY
IN CRIMES AGAINST PROPERTY

Art. 332. Persons exempt from criminal liability. —

No criminal, but only civil liability shall result from the
commission of the crime of theft, swindling, or malicious
mischief c o m m i t t e d or c a u s e d mutually by the following per-
sons:
1. Spouses, ascendants and descendants, or relatives
by affinity in t h e s a m e line;
2. The widowed spouse with respect to the property
which belonged to the deceased spouse before the same shall
have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and
sisters-in-law, if living together.
The exemption established by this article shall not be
applicable to strangers participating in the commission of
the crime.

Crimes involved in the exemption:

1. Theft,
2. Swindling (estafa),
3. Malicious mischief.
Note: Hence, if the crime is robbery or estafa through falsification, this
article does not apply. Thus, if the son committed estafa through falsification
of a commercial document against his father, he is criminally liable for the
crime of falsification.

Persons exempted from criminal liability.

1. Spouses, ascendants and descendants, or relatives by affinity in the
same line.

894
 EXCEMPTION FROM CRIMINAL LIABILITY Art. 332
IN CRIMES AGAINST PROPERTY

2. The widowed spouse with respect to the property which belonged

to the deceased spouse before the same passed into the possession of
another.
3. Brothers and sisters and brothers-in-law and sisters-in-law, [{living
together.

There is only civil liability.

No criminal, but only civil liability shall result from the commission
of any said crimes, committed or caused mutually by those persons. (Par. 1,
Art. 332)

"Committed or caused mutually" by the persons mentioned in Art.

332.
A w a s indebted to B in the s u m of P100. C, son of B, without the
knowledge or consent of the latter, w e n t to A and falsely represented to him
that B sent him (C) to collect. Believing the statement of C to be true, A gave
P100 to C. The money w a s not turned over to B, as C spent it for himself.
Is Art. 332 applicable?
No, because the offended party in this case is A, not B. Art. 332 is
applicable only when the offender and the offended party are relatives and
their relationship is any of those mentioned in said article.

Reason for exemption from criminal liability.

The law recognizes the presumed co-ownership of the property between
the offender and the offended party.

This article does not apply to stranger who participates in the

commission of the crime.
Strangers who participate in the commission of the crime are not
exempt from criminal liability, (last par., Art. 332)
Thus, if a stranger cooperated with the son of the offended party in
stealing the latter's money, the son is exempt from criminal liability but the
stranger is criminally liable.

Stepfather, adopted father, natural children, concubine, paramour,

included.
Stepfather and stepmother are included as ascendants by affinity.
(People vs. Alvarez, 52 Phil. 65; People vs. Adame, et al., C.A., 40 O.G.,
Supp. 12, 63)

895
 Art. 332 EXCEMPTION FROM CRIMINAL LIABILITY
IN CRIMES AGAINST PROPERTY

A stepfather, who was angry with his stepson, took the suitcase of the
latter with its contents and burned it in an orchard. As this crime should be
treated as malicious mischief only, the stepfather is not criminally liable.
(People vs. Alvarez, 52 Phil. 65)
An adopted or natural child should also be considered as relatives
included in the term "descendants" and a concubine or paramour within the
term "spouses." (Guevara)

Art. 332 applies to common-law spouses.

We should not draw hair-splitting distinction between a couple whose
cohabitation is sanctioned by a sacrament or legal tie and another who are
husband and wife de facto. In actual life, no difference in relationship exists.
Even our Civil Code concedes to a man and a woman who live together as
husband and wife without benefit of ceremony, the right of co-ownership
to the "property acquired by either or both of t h e m through their work or
industry or their wages and salaries." (Article 144, Civil Code; People vs.
Constantino, C.A., 60 O.G. 3605)

The widowed spouse who commits theft, estafa or malicious

mischief with respect to property of deceased.
To be exempt from criminal liability, it is required that —
(1) the property belongs to the deceased spouse; and
(2) it has not passed into the possession of a third person.

Brothers and sisters and brothers-in-law and sisters-in-law must

be living together at the time of the commission of any of the
crimes of theft, estafa or malicious mischief.

Thus, when the accused, the brother-in-law of the offended party, was
living in the house of the offended party at the time he received P I , 0 0 0 from
the latter to buy plumbing fixtures for her, and misappropriated it to her
prejudice, there was only civil liability. (People vs. N a v a s , C.A., 51 O.G.
219)

896