Title 10- Crimes against property (29) Destroying or damaging statues, public

monuments or paintings. (Art. 331)

(1) Robbery with violence against or intimidation of
persons. (Art. 294)

(2) Attempted and frustrated robbery committed under Art. 293: Who are guilty of robbery
certain circumstances. (Art. 297)
Robbery, defined—
(3) Execution of deeds by means of violence or
Robbery is the taking of personal property, belonging
intimidation. (Art. 298)
to another, with intent to gain, by means of violence
(4) Robbery in an inhabited house or public building or against, or intimidation of any person, or using force
edifice devoted to worship. (Art. 299) upon anything

(5) Robbery in an uninhabited place or in a private Classification of robbery—

building. (Art. 302)
1. Robbery with violence against, or intimidation of
(6) Possession of picklocks or similar tools. (Art. 304) persons. (Arts. 294, 297 and 298)

(7) Brigandage. (Art. 306) 2. Robbery by the use of force upon things. (Arts. 299
and 302)
(8) Aiding and abetting a band of brigands. (Art. 307)
Elements of robbery in general—
(9) Theft. (Art. 308)
a. That there be (1) personal property; (2) belonging to
(10) Qualified theft. (Art. 310)
another;
(11) Theft of the property of the National Library and
b. That there is (3) unlawful taking of that property;
National Museum. (Art. 311)
c. That the taking must be (4) with intent to gain; and
(12) Occupation of real property or usurpation of real
rights in property. (Art. 312) d. That there is (5) violence against or intimidation of
any person, or force upon anything.
(13) Altering boundaries or landmarks. (Art. 313)
Personal property—
(14) Fraudulent insolvency. (Art. 314)
The property taken must be personal property, for if real
(15) Swindling. (Art. 315)
property is occupied or real right is usurped by means of
(16) Other forms of swindling. (Art. 316) violence against or intimidation of person, the crime is
usurpation. (Art. 312)
(17) Swindling a minor. (Art. 317)
Prohibitive articles may be the subject matter of
(18) Other deceits. (Art. 318) robbery; opium, for instance— US vs. Sana him
(19) Removal, sale or pledge of mortgaged property. Belonging to another—
(Art. 319)
Since the personal property must belong to another, a
(20) Destructive arson. (Art. 320) co-owner or a partner cannot commit robbery or theft
(21) Other forms of arson. (Art. 321) with regard to the co-ownership or partnership
property. Art. 293 uses the phrase "belonging to
(22) Arson of property of small value. (Art. 323) another" which means that the property taken does not
(23) Crimes involving destruction. (Art. 324) belong to the offender.

(24) Burning one's own property as means to commit The person from whom the personal property is taken
arson. (Art. 325) need not be the owner. Possession of the property is
sufficient
(25) Setting fire to property exclusively owned by the
offender. (Art. 326) Does the phrase "belonging to another," in relation to
the property taken, mean that the naming of the owner
(26) Malicious mischief. (Art. 327) is a matter of essential description of the crime—
(27) Special cases of malicious mischief. (Art. 328) Yes, if the crime is robbery with homicide;
(28) Damage and obstruction to means of No, if robbery with intimidation or violence, or force
communication. (Art. 330) upon things

1
In robbery, the personal property of another is taken by 2. If he took personal property from another, believing
the offender against the will of the owner—US vs. that it was his own property, but in reality it belonged to
Alcantara the offended party

The taking of personal property must be unlawful—US Violence or intimidation, as an element of robbery—
vs. Atienza
The intimidation exists when 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 —
The unlawful taking of personal property is an essential
are forms of intimidation.
part of the crime of robbery, and where the taking was
lawful and the unlawful misappropriation was
subsequent to such taking, the crime is estafa or
Intimidation need not be threat of bodily harm—People
malversation.
vs. Palabao
Unlawful taking, when complete—
The violence or intimidation must be present before the
1. As to robbery with violence against or intimidation of taking of personal property is complete—
persons.
If there is violence or intimidation at any time before
From the moment the offender gains possession of the asportation is complete, the taking of personal property
thing, even if the culprit has had no opportunity to is qualified to robbery. It is not necessary that violence
dispose of the same, the unlawful taking is complete. or intimidation should be present from the very
The fact that the defendant in his flight threw away the beginning
property stolen or that it fell without his knowledge,
Exception: But when the violence results in: (1)
does not affect the nature of the crime.
homicide, (2) rape, (3) intentional mutilation, or (4) any
2. As to robbery with force upon things (US vs. Del of the serious physical injuries penalized in paragraphs 1
Rosario) and 2 of Art. 263, the taking of personal property is
robbery complexed with any of those crimes under Art.
Note: It would seem that in this kind of robbery, the
294, even if the taking was already complete when the
thing must be taken out of the building to consummate
violence was used by the offender.
the crime.
But the taking of personal property need not be
"Taking," as an element of robbery, means depriving the
immediately after the intimidation— People vs. Chiong
offended party of ownership of the thing taken with the
character of permanency— People vs. Kho Choc "Using force upon anything."—

Intent to gain— But the use of force upon things will not make the
taking of personal property robbery, if the culprit never
Intent to gain is presumed from the unlawful taking of
entered a house or building.
personal property
Entrance into the building must be effected by any of
People vs. Sia Teb Ban: The intent to gain, being an
the means described in Arts. 299 and 302.
internal act, cannot be established by direct evidence,
except in case of confession by the accused. It must, But such entrance into the building is not necessary
therefore, be deduced from the circumstances when the robbery is committed by breaking wardrobes,
surrounding the commission of the offense. chests, or any other kind of locked or sealed furniture or
receptacle inside an inhabited house, a public building
Absence of intent to gain will make the taking of
or an edifice devoted to religious worship, or by taking
personal property grave coercion if there is violence
such furniture or objects away to be broken or forced
used. (Art. 286)
open outside (subdivision [b] of Art. 299) or when the
The element of "personal property belonging to robbery in an uninhabited building, other than a public
another" and that of "intent to gain" must concur— building or edifice devoted to religious worship, is
committed by breaking any wardrobe, chest, or any
No liability exists [even if the accused used violence sealed or closed furniture or receptacle, or by removing
against or intimidation of person, or force upon a closed or sealed receptacle even if the same be broken
anything] when: open elsewhere,
1. If the accused, with intent to gain, took from another, Distinctions between effects of employment of violence
personal property which turned out to be his own against or intimidation of person and those of use of
property, the property not belonging to another, force upon things—

2
(1) How consummated- persons: taking of personal [Reclusion temporal in its medium period to reclusion
property; things: use of force to either enter the perpetua] (Art. 263 Subdivision 1)
building, or break any obstacle (e.g., windows, doors),
3. When by reason or on occasion of such robbery, any
or force furniture out
of the physical injuries resulting in insanity, imbecility,
(2) Value of personal property in relation to penalty: impotency or blindness is inflicted;
considered only in robbery by force upon things;
[Reclusion temporal] (Art. 263 Subdivision 2)
persons- commission of crimes against persons, or
existence of intimidation 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
Classification of robbery when both violence or an eye, a hand, a foot, an arm, or a leg or the loss of
intimidation and force upon things are present— the use of any such member or incapacity for the work
in which the injured person is theretofore habitually
When the offender, in taking personal property
engaged is inflicted;
belonging to another with intent to gain, employs
violence against or intimidation on any person, the [Prision mayor in its maximum period to reclusion
crime is robbery with violence against or intimidation of temporal in its medium period] (Art. 263 subdivisions 3
persons, even if the robbery was committed in a & 4)
dwelling house after the offender had entered the same
5. If the violence or intimidation employed in the
through a window, or after breaking its door or wall. The
commission of the robbery is carried to a degree
offender cannot be held liable for robbery with force
clearly unnecessary for the commission of the crime;
upon things under Art. 299
6. When in the course of its execution, the offender shall
Republic Act No. 6539, approved August 26, 1972, is
have inflicted upon any person not responsible for the
the law applicable when the property taken in robbery
commission of the robbery any of the physical injuries in
is a motor vehicle—
consequence of which the person injured becomes
"Carnapping" is the taking, with intent to gain, of motor deformed or loses any other member of his body or
vehicle belonging to another without the latter's loses the use thereof or becomes ill or incapacitated
consent, or by means of violence against or intimidation for the performance of the work in which he is
of persons, or by using force upon things habitually engaged for more than 90 days or the
person injured becomes ill or incapacitated for labor
Sec. 14—Penalty for carnapping:
for more than 30
Force upon things—14 years and 8 moths to 17 years
days;
and 4 months imprisonment
[Prision correccional in its maximum period to prision
Intimidation and violence— 17 years and 4 months to
mayor in its medium period]
30 years
7. If the violence employed by the offender does not
Death occurs—reclusion perpetua
cause any of the serious physical injuries defined in
Art. 263, or if the offender employs intimidation only.

Section One. — Robbery with violence against or The crime defined in this article is a special complex
intimidation of persons crime—Art. 48 does not apply

Art. 294: Robbery with violence against or intimidation "On the occasion" or "by reason" of the robbery—
of persons
the homicide or serious physical injuries defined in
Penalty: paragraphs 1 and 2 of Art. 263 must be committed in
the course or because of the robbery.
Acts punished as robbery with violence against or
intimidation of persons: Robbery and homicide are separate offenses, when the
homicide was not committed "on the occasion" or "by
[Reclusion perpetua to death] reason" of the robbery—People vs. Atanacio et al.
1. When by reason or on occasion of the robbery (taking Where the original design comprehends robbery, and
of personal property belonging to another with intent to homicide is perpetrated by reason or on occasion of the
gain), the crime of homicide is committed; consummation of the former, the crime committed is
2. When the robbery is accompanied by rape or robbery with homicide— People vs. Salazar
intentional mutilation or arson;

3
The rule is that where the original design comprehends Note: The phrase "by reason" covers homicide
robbery in a dwelling (or elsewhere), and homicide is committed before or after the taking of personal
perpetrated with a view to the consummation of the property of another, as long as the motive of the
robbery, the offense committed is the special complex offender (in killing a person before the robbery) is to
crime of robbery with homicide, even though homicide deprive the victim of his personal property which is
precedes robbery by an appreciable time. 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
PARAGRAP H 1 : ROBBERY WITH HOMICIDE stolen property.

This is a special complex crime, punished as a single Homicide, to eliminate an obstacle to the commission of
crime, although robbery and homicide are committed robbery—People vs. Libre et al.
by the offender
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

Meaning of "homicide"— deceased when they asked him for money and they shot
The term "homicide" as used in paragraph No. 1 of Art. him down to eliminate an obstacle to the effectuation of
294, is to be understood in its generic sense as to their unlawful design which was shown by the fact that
include parricide and murder. they repaired to his house which was nearby, and by
force took his money therefrom. There is direct
The juridical concept of robbery with homicide does not connection between the killing and the robbery.
limit the taking of life to one single victim or to ordinary
homicide— People vs. Madrid Homicide, committed to remove opposition or to
suppress evidence—People vs. Madrid
All the homicides or murders are merged in the
composite, integrated whole that is robbery with Homicide, necessary to defend possession of stolen
homicide so long as all the killings were perpetrated by goods— People vs. Salamuddin
reason or on the occasion of the robbery. Is it robbery with homicide if the person killed is a
There is no such crime as robbery with murder— robber himself—

Treachery cannot be considered as a qualifying It would seem that it is still robbery with homicide, if, in
circumstance of murder, because the crime charged is the course of the robbery, another robber is killed by his
the special crime of robbery with homicide. The companion who wanted to get a lion's share of the loot.
treachery which attended the commission of the crime The law does not require that the person killed is the
must be considered not qualifying but merely as a owner of the property taken.
generic aggravating circumstance. There is robbery with homicide, even if the person killed
An intent to take personal property belonging to was an innocent bystander and not the person robbed.
another with intent to gain must precede the killing— (People vs. Disimban, 88 Phil. 120) The law does not
require that the victim of the robbery be also the victim
If the idea of taking the personal property of another of the homicide.
with intent to gain came to the mind of the offender
after he had killed the victim, he is guilty of two It is robbery with homicide even if the death of a person
separate crimes of homicide or murder, as the case may supervened by mere accident— People vs.
be, and theft Mangulabnan et al.

The crime is robbery with homicide, even if the motive Spanish text: Con la pena de reclusion perpetua a
of the offenders was that of robbery as well as muerte, cuando con motivo o con ocasion del robo
vengeance— resultare homicidio

But when the intent to commit robbery preceded the Dec. Sup. Ct. of Spain Nov. 26 1892 & Jan. 7, 1878: We
taking of human life, it is immaterial that the offenders see, therefore, that in order to determine the existence
had also a desire to avenge grievances against the of the crime of robbery with homicide, it is enough that
person killed. a homicide resulted by reason or on the occasion of the
robbery
Homicide may precede robbery or may occur after
robbery— Where homicide and physical injuries were perpetrated
to remove opposition to robbery or suppressing

4
evidence thereof, the crime is robbery with homicide Even if the rape was committed in another place, it is
only—People vs. Genoguin still robbery with rape—Us vs. Tiongco et al.

In robbery with homicide, must the person charged as Note: But if the rape is committed against a woman in a
accessory have knowledge of the commission, not only house other than that where the robbery is committed,
of robbery, but also of homicide— the rape should be considered a separate offense

People vs. Doble: it was held that where the Rape was committed before taking of personal property
accomplices knew merely that a gang which took them —People vs. Canastre
as banca drivers would stage a robbery and they were
In this case, the intention of the culprits from the
left at the beach by the gangmen, the fact that the latter
beginning was to take personal property. Even if the
killed several people in escaping will not make them
rape was committed before the taking of the rice and
liable as accomplices.
chickens, they were guilty of robbery with rape. Rape
People vs. Adriano: it was held that the most that could was not their primary objective.
be found against Pedro Bernardo is that he knew of the
There is no such crime as robbery with attempted rape
robbery only, but not of the killing. He knew that the
—
money turned over to him for safekeeping was the
product of robbery. He should, therefore, be held as Art. 294, par. 2, which punishes robbery with rape
accessory only of simple robbery, not of the grave (consummated) does not cover robbery with attempted
offense of robbery with homicide rape.
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 When the taking of personal property of a woman is an
degrees than that prescribed by law for the independent act following defendant's failure to
consummated felony consummate the rape, there are two distinct crimes
committed: attempted rape and theft— People vs.
All who participated in the robbery as principals are Buenca
principals in robbery with homicide—
Additional rapes committed on the same occasion of
all those who took part as principals in the robbery robbery will not increase the penalty—
would also be held liable as principals of the single and
indivisible felony of robbery with homicide although There are likewise cases which held that the multiplicity
they did not actually take part in the killing, unless it of rapes committed could be appreciated as an
clearly appears that they endeavored to prevent the aggravating circumstance. In People vs. Candelario,
same. supra, where three of the four armed men who robbed
the victim "alternately raped her twice for each of
Robbery with Homicide Distinguished from Highway them"… The multiplicity of rapes should instead be
Robbery— PD No. 532 taken into account in raising the penalty to death."
conviction for highway robbery requires proof that When the taking of property after the rape is not with
several accused were organized for the purpose of intent to gain, there is neither theft nor robbery
committing it indiscriminately. committed—People vs. Villarino

Civil liability for robbery with rape—

PARAGRAP H 2 : ROBBERY WITH RAPE 50,000php; [if offender is married] sentenced to support
the offspring (People vs. Belandres)
As regards the special complex crime of robbery with
rape, the law uses the phrase "when the robbery shall When rape and homicide co-exist in the commission of
have been accompanied by rape.' robbery—
But like in robbery with homicide, the offender must Art. 294, the rape to be considered as an aggravating
have the intent to take the personal property belonging circumstance only.
to another with intent to gain, and such intent must
precede the rape. Robbery with serious physical injuries under Art. 263,
par. 2 (Art. 294, par. 3)— People vs. Luncay
Rape committed on the occasion of the robbery—
Note: This ruling is inconsistent with the ruling in the
This is usually committed when, while some robbers are case of People vs. Hernandez, 94 Phil. 49, as regards the
ransacking for personal property in the house, the other crime of serious physical injuries committed. In that
is raping a woman in the same house. case, it was held that as the offended party may still

5
hear through his left ear, the case falls under Art. 263, This is so, because asportation is a complex fact, a whole
par. 3. divisible into parts, a series of acts, in the course of
which personal violence or intimidation may be
Robbery with unnecessary violence and intimidation
injected.
(Art 294 par 4)— People vs. Manzanilla et al.
Thus, where a person picked the pocket of another who,
When the violence or intimidation is necessary, par. 4 of
becoming aware of it, tried to recover his property, but
Art. 294 is not applicable—US vs. De Los Santos
a companion of the thief prevented him by using force
Although one of the victims was bound and beaten with and violence, the crime committed is robbery, because
the butt of a gun, this would not constitute unnecessary violence was used before the owner is finally deprived
violence under paragraph 4 of Art. 294, because it of the property.
appears that the beating was for the purpose of
When the act of snatching a thing from his hands did
compelling him to show the place where he kept his
not result in violence against the person of the offended
money
party, the crime of robbery is not committed—People
Inflicting serious physical injuries defined in subdivisions vs. Jason
3 and 4 of Art. 263 "upon any person not responsible for
Where there is nothing in the evidence to show that
its commission—
some kind of violence had been exerted to accomplish
It says: "upon any person not responsible for its the snatching, and the offended party herself admitted
commission." It would seem that the penalty prescribed that she did not feel anything at the time her watch was
in paragraph 4 of Art. 294 should not be applied. The snatched from her left wrist, the crime committed is not
offender who inflicted on another robber, physical robbery but only simple theft.
injuries which later resulted in deformity, would be
Intimidation exists in the following cases—People vs.
liable for two crimes, namely: (1) robbery, and (2)
Gococo
serious physical injuries under Art. 263, paragraph 3.
Intimidation exists when the acts executed or words
The serious physical injuries defined in subdivisions 3
uttered by the offender are capable of producing fear in
and 4 of Art. 263, inflicted in connection with the
the person threatened.
robbery, must be inflicted "in the course of its
execution."— In robbery with intimidation, there must be acts done
by the accused which, either by their own nature or by
If they were inflicted after the taking of the personal
reason of the circumstances under which they are
property had been complete, the serious physical
executed, inspire fear in the person against whom they
injuries mentioned should be considered as separate
are directed—
offense.
Threats to extort money distinguished from robbery
In paragraph 4 of Art. 294, the phrase "by reason" is not
thru intimidation—People vs. Moreno
used.
In both crimes, there is intimidation by the offender. The
Requisites of robbery under the second case of
purpose, when threat is made to extort money, is
paragraph 4 of Art. 294—
identical — to obtain gain.
1. That any of the physical injuries defined in paragraphs
The differences are:
3 and 4 of Art. 263 was inflicted in the course of the
robbery; and (1) In robbery, the intimidation is actual and immediate;
whereas in threats, the intimidation is conditional or
2. That any of them was inflicted upon any person not
future, that is, not immediate;
responsible for the commission of the robbery.
(2) In robbery, the intimidation is personal, while in
Robbery with the use of violence against or intimidation
threats, it may be through an intermediary;
of any person under paragraph 5 of Art. 294—
(3) In threats, the intimidation may refer to the person,
The robbery under this paragraph is known as simple
honor or property of the offended party or that of his
robbery, because the use of violence against any person
family; while in robbery, the intimidation is directed only
does not result in homicide, rape, intentional mutilation,
to the person of the victim;
or any of the serious physical injuries defined in Art.
263, which may give rise to special complex crime. (4) In robbery, the gain of the culprit is immediate;
whereas in threats, the gain of the culprit is not
Violence or intimidation need not be present before or
immediate.
at the exact moment when the object is taken— People
vs. Omambong Robbery with violence distinguished from grave
coercion—
6
(1) In both crimes, there is violence used by the Any of these five qualifying circumstances of robbery
offender; with physical injuries or intimidation must be alleged in
the information and proved during the trial
(2) While in robbery, there is intent to gain, such
element is not present in coercion. Being qualifying, it cannot be offset by a generic
mitigating circumstance—
but if his purpose is to compel another to do something
against his will, without authority of law, but believing The intimidation with the use of firearm qualifies only
himself to be the owner or creditor, and thereby seizes robbery on a street, road, highway or alley—
property, then the crime is grave coercion.
Art. 295 does not apply to robbery with homicide, or
Robbery and bribery distinguished— robbery with rape, or robbery with serious physical
injuries under par. 1 of Art. 263—
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 when
Art. 296: Definition of a band and penalty incurred by
the victim has committed a crime and gives money or
the members thereof.
gift to avoid arrest or prosecution.
Penalty: Maximum period of the corresponding penalty
In robbery, the victim is deprived of his money or
provided by law; without prejudice to criminal liability
property by force or intimidation; in bribery, he parts
for illegal possession of firearms
with his money or property in a sense voluntarily. (US
vs. Flores) Band members punished as a principal for the assaults
committed [except when attempted to prevent the
When it is not certain that the victim committed a crime
same]
— People vs. Francisco
Outline of the provisions—
The principal distinction between the two offenses is
that in bribery, the transaction is mutual and voluntary; 1. When at least four armed malefactors take part in
in the case of robbery, the transaction is neither the commission of a robbery, it is deemed committed
voluntary nor mutual, but is consummated by the use of by a band.
force or intimidation.
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
Art. 295: Robbery with physical injuries, committed in
corresponding penalty provided by law, without
an uninhabited place and by a band, or with the use of
prejudice to the criminal liability for illegal possession
firearm on a street, road or alley
of such firearms.
Penalty: maximum period of the proper penalties
3. Any member of a band who was present at the
[indicated in subdivisions 3-5 Art. 294]
commission of a robbery by the band, shall be
When is robbery with violence against or intimidation of punished as principal of any of the assaults committed
persons qualified— by the band, unless it be shown that he attempted to
prevent the same.
If any of the offenses denned in subdivisions 3, 4 and 5
of Art. 294 is committed Requisites for liability for the acts of the other
members of the band—
(1) in an uninhabited place, or
1. That he was a member of the band.
(2) by a band,or
2. That he was present at the commission of a robbery
(3) by attacking a moving train, street car, motor
by that band.
vehicle, or airship, or
3. That the other members of the band committed an
(4) by entering the passengers' compartments in a
assault.
train, or in any manner taking the passengers thereof
by surprise in the respective conveyances, or 4. That he did not attempt to prevent the assault

(5) on a street, road, highway, or alley, and the When is the robbery deemed committed by a band—
intimidation is made with the use of firearms
At least four armed persons must take part in the
Must be alleged in the information— commission of robbery

Clubs are arms—US vs. De La Cruz et al.

7
When the robbery was not committed by a band, the homicide is committed by a band, the indictable offense
robber who did not take part in the assault by another is would still be denominated as "robbery with homicide"
not liable for that assault— under Art. 294(1), but the circumstance that it was
committed by a band would be appreciated as an
When the robbery was not by a band and homicide was
ordinary aggravating circumstance.
not determined by the accused when they plotted the
crime, the one who did not participate in the killing is Robbery by a band — all are liable for any assault
liable for robbery only— People vs. Pelagio et al. committed by the band, unless the others attempted to
prevent the assault— People vs. Garduque et al.
But when there is conspiracy to commit homicide and
robbery, all the conspirators, even if less than four When rape is not considered "any of the assaults
armed men, are liable for the special complex crime of committed by the band."—People vs. Hamiana
robbery with homicide— People vs. Fontanillas et al.
Note: The members of the band liable for the assault
Their acts, collectively and individually executed, have must be present at the commission of the robbery, not
demonstrated the existence of a common design necessarily at the commission of the assault
towards the accomplishment of the same unlawful
"Without prejudice to the criminal liability for illegal
purpose and objective. The killing of Alfonso Yu and
possession of such unlicensed firearm."—PD No. 1866
Victor Yu, bears a direct relation and intimate
connection between the robbery and the killing, for the Rep. Act No. 8294 considers use of an unlicensed
killing happened during and on the occasion of the firearm in murder or homicide merely a special
robbery. Whether the latter be prior or subsequent to aggravating circumstance, and not a separate crime—
the former, for the element of conspiracy having been 3rd par. Sec. 1 RA 8294
proven, it is unquestionable that the complex crime of
robbeiy with homicide has been committed, and all the The special aggravating circumstance of use of
appellants are liable therefor. unlicensed firearm is not applicable to robbery with
homicide committed by a band— People vs. Apuduhan
"Any member of a band who is present at the Jr.
commission of a robbery by the band."—
The use of firearm, whether licensed or unlicensed, in
A principal by inducement, who did not go with the making the intimidation is a qualifying circumstance
band at the place of the commission of the robbery, is when the robbery defined in any of paragraphs 3,4 and
not liable for robbery with homicide, but only for 5 of Art. 294 is committed on a street, road, highway, or
robbery in band, there being no evidence that he gave alley—
instructions to kill the victim or intended that this
should be done. Art. 295 makes no distinction as regards the firearm
used in making the intimidation to commit robbery.
But the principal by induction would be liable for the Hence, the firearm may be licensed or unlicensed.
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 Art. 297: Attempted and frustrated robbery committed
other crimes. under certain circumstances
Conspiracy was for robbery only but homicide was also Penalty: reclusion temporal in its maximum period to
committed on the occasion thereof — all members of reclusion perpetua
the band are liable for robbery with homicide—
The term "homicide" is used in a generic sense—
Whenever homicide is committed as a consequence of
or on the occasion of a robbery, all those who took part The penalty is the same, whether the robbery is
in the commission of the robbery are also guilty as attempted or frustrated—
principals in the crime of homicide unless it appears "Unless the homicide committed shall deserve a higher
that they endeavored to prevent the homicide. penalty."—Referring to a resulting homicide and the
Proof of conspiracy is not necessary when four or more presence of aggravating circumstances
armed persons committed robbery— People vs. De La Attempted robbery with homicide— People vs.
Rosa et al. Carunungan et al.
There is no crime as "robbery with homicide in band”— When there is no overt act of robbery— People vs.
People vs. Apduhan Jr. Olaes
With the present wording of Art. 295, there is no crime Defendant may be liable to the outcomes of actions not
as "robbery with homicide in band." If the robbery with intended for robbery (e.g., murder and physical injuries)
8
Frustrated robbery with homicide— People vs. Ramires If the violence used resulted in the death of the person
to be defrauded, the crime is robbery with homicide
The accused agreed to rob two LCM boats from the
and the penalty for that crime as prescribed in
Navy boat pool with the idea of selling them for profit.
paragraph 1 of Art. 294 shall be imposed.
They disarmed the guard and when they failed to take
the boats, because they could not start the motor, they If the execution of deeds by means of violence is only in
killed the guard. the attempted or frustrated stage and the violence used
resulted in the death of the person to be defrauded, the
Art. 29 6 is applicable to attempted robbery with
penalty prescribed in Art. 297 shall be imposed.
homicide by a band—
Must the document be public—
Special complex crime—
Spanish text: escritura publico o documento."
Robbery with homicide and attempted or frustrated
robbery with homicide are special complex crimes, not The adjective "public" must therefore describe the word
governed by Art. 48, but by the special provisions of "instrument" only. Hence, this article applies even if the
Arts. 294 and 297, respectively document signed, executed or delivered is a private or
commercial document.
When Art. 48 is applicable in robbery—
Art. 298 is not applicable if the document is void—
People vs. Villanueva: When the offense committed is
attempted or frustrated robbery with serious physical If a person, by means of violence or intimidation and
injuries, Art. 48 is applicable, since the felony would fall with intent to defraud. compelled another to sign a void
neither under Art. 294 which covers consummated document, would he be liable for -grave coercion? No.
robbery with homicide nor under Art. 297 which covers because in grave coercion, the offender does not have
attempted or frustrated robbery with homicide. intent to gain. It seems that he would be liable for
physical injuries, if the violence resulted in physical
People vs. Cagonon: When the crime committed is
injuries, or grave threats under subdivision No. 2 of Art.
robbery with frustrated homicide, the penalty for the
282, if there is only intimidation.
more serious crime, which is frustrated homicide,
should be imposed in its maximum period, as provided Distinguished from coercion—
in Art. 48.
When the offended party is under obligation to sign,
There is only one crime of attempted robbery with execute or deliver the document under the law, there is
homicide even if slight physical injuries were inflicted on no robbery. There will be coercion if violence is used in
other persons on the occasion or by reason of the compelling the offended party to sign or deliver the
robbery—People vs. Casalme et al. document.

Note: The slight physical injuries should be disregarded

in the designation of the offense, for there is no such
crime as attempted robbery with homicide and slight
physical injuries. Art. 297 speaks of attempted or Section 2: Robbery by the use of force upon things
frustrated robbery with homicide.
Robbery by the use 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.
Art. 298: Execution of deeds by means of violence or
302, or (2) even if there was no entrance by any of those
intimidation
means, he broke a wardrobe, chest, or any other kind of
Penalty: penalties respectively prescribed in the chapter locked or closed or sealed furniture or receptacle in the
for robbery house or building, or he took it away to be broken or
forced open outside.
Elements:
What are the two kinds of robbery with force upon
1. That the offender has intent to defraud another.
things—
2. That the offender compels him to sign, execute, or
They are:
deliver any public instrument or document.
1. Robbery in an inhabited house or public building or
3. That the compulsion is by means of violence or
edifice devoted to religious worship. (Art. 299)
intimidation.
2. Robbery in an uninhabited place or in a private
"Shall be held guilty of robbery and punished by the
building. (Art. 302)
penalties respectively prescribed in this chapter."—

9
Art. 299: Robbery in an inhabited house or public What public building includes—Art. 301
building or edifice devoted to worship
Public building is every building owned by the
Penalty: reclusion temporal [if value of the property Government or belonging to a private person but used
taken exceed 250php] or rented by the Government, although temporarily
unoccupied by the same.
Penalty next lower in degree [if there was no arms
involved and the value of the property taken exceeds Any of the four means described in subdivision (a) of
250php; if robbery is committed in one of the Art. 299 must be resorted to by the offender to enter a
dependencies] house or building, not to get out—

Penalty in its minimum period [if value of property Note the opening sentence of subdivision (a) which
taken does not exceed 250php] states, "The malefactors shall enter the house or
building in which the robbery is committed, by any of
ROBBERY WITH FORCE UPON THINGS UNDER
the following means:"
SUBDIVISION (A)—
The whole body of culprit must be inside the building to
Elements:
constitute entering—People vs. Adorno
1. That the offender entered (a) an inhabited place, or
The wall must be an outside wall—
(b) public building, or (c) edifice devoted to religious
worship. The wall broken must be an outside wall, not a wall
between rooms in a house or building, because the
2. That the entrance was effected by any of the
breaking of the wall must be for the purpose of entering
following means:
the house or building where the robbery is committed
a. Through an opening not intended for entrance or
The outside door must be broken—People vs.
egress;
Fernandez
b. By breaking any wall, roof, or floor or breaking any
Held: The Spanish text of paragraph (a) 2 of Article 299
door or window;
of the Revised Penal Code is as follows: "Por
c. By using false keys, picklocks or similar tools; or rompimiento de pared, techo o suelo, a fractura
depuerta o ventana." The words "fractura de puerta o
d. By using any fictitious name or pretending the ventana" clearly mean "the breaking of a door or
exercise of public authority. window," and imply more than the mere forcing open of
3. That once inside the building, the offender took a door or window. If the defendant had forced open a
personal property belonging to another with intent to window and entered in that way, he would, of course,
gain. 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 means of some instrument. It was
neither alleged nor proved that the door was broken.
There must be evidence or the facts must show that the The accused not having entered the store by any of the
accused entered the dwelling house or building by any means specified in Article 299 of the Revised Penal
of the means enumerated in subdivision (a) of Art. 299 Code, the crime committed by him was theft.
—
By using false keys, picklocks or similar tools— Art. 305
In entering the building, the offender must have an
intention to take personal property— False keys are genuine keys stolen from the owner or
any keys other than those intended by the owner for
The place entered must be a house or building— use in the lock forcibly opened by the offender
When the culprit enters the parked automobile through The genuine key must be stolen, not taken by force or
the window, the glass of which he broke, the crime is with intimidation, from the owner—
theft if personal property is taken therefrom, because
the automobile is not a house or building. Robbery with intimidation is punishable under par. 5
Art. 294
What inhabited house includes— Art. 301
The false key or picklock must be used to enter the
Inhabited house is any shelter, ship or vessel building—
constituting the dwelling of one or more persons even
though the inhabitants thereof are temporarily absent The use of false key or picklock refers to the mode of
therefrom when the robbery is committed. entering the house or building and not to the method of

10
opening a trunk in the house or to the method of "destruction of a keyhole." But the destruction of a
opening the drawer of the cabinet. keyhole of an aparador is itself a destruction of a locked
furniture. Just as one who hurts his finger, hurts his
It is only theft when the false key is used to open
hand.
wardrobe or locked receptacle or drawer or inside door
— When sealed box or receptacle is taken out of the house
or building for the purpose of breaking it outside, it is
The use of a fictitious name or the act of pretending to
not necessary that it is actually opened—
exercise authority must be to enter the building—
A person who carries away a sealed box or receptacle
ROBBERY WITH FORCE UPON THINGS UNDER
for the purpose of breaking the same and taking out its
SUBDIVISION (B) OF ART. 299—
contents outside the place of robbery is guilty of
Elements: consummated robbery even though he does not
succeed in opening the box
1. That the offender is inside a dwelling house, public
building, or edifice devoted to religious worship, It is estafa or theft, if the locked or sealed receptacle is
regardless of the circumstances under which he not forced open in the building where it is kept or taken
entered it; therefrom to be broken outside—

2. That the offender takes personal property belonging A person who opens by force a certain locked or sealed
to another, with intent to gain, under any of the receptacle which has been confided into his custody and
following circumstances: takes the money contained therein, is guilty of estafa
and not robbery, because the accused does not commit
a. by the breaking of doors, wardrobes, chests, or any the act in the house of the offended party or the
other kind of locked or sealed furniture or receptacle; accused does not take the receptacle out from the
or house of its owner. And it is theft when a locked
b. by taking such furniture or objects away to be receptacle is found on the side of the street and it is
broken or forced open outside the place of the forcibly opened and the contents thereof are taken.
robbery. The penalty for robbery with force upon things in
Entrance into the building by any of the means inhabited house, public building or edifice devoted to
mentioned in subdivision (a) of Article 299 is not religious worship depends on the value of property
required in robbery under subdivision (b) of same article taken and on whether or not offender carries arm—
— 1. By ARMED person and the value of property taken
It will be noted that the robbery denned in Article 299 is EXCEEDS P250 - RECLUSION TEMPORAL
committed in two ways, as stated in subdivisions (a) and 2. By UNARMED person and the value of property taken
(b). Subdivisions (a) and (b) are separated by the words EXCEEDS P250 - PRISION MAYOR.
"or if, indicating thereby that each subdivision is
independent of the other. 3. By ARMED person but the value of property taken
DOES NOT exceed P250 - PRISION MAYOR.
The term "door" in paragraph No. 1, subdivision (b) of
Art. 299, refers only to "doors, lids, or opening sheets" 4. By UNARMED person and the value of property taken
of furniture or other portable receptacles — not to DOES NOT exceed P250 - PRISION MAYOR MINIMUM.
inside doors of house or building— People vs. Punzon
5. In a DEPENDENCY of inhabited house, public building,
and Martinez
or edifice devoted to religious worship — penalty NEXT
The reason for this ruling is that paragraph No. 2 of the LOWER in degree than those SPECIFIED ABOVE.
same subdivision and article speaks of "taking such
A bolo is not an arm when used by a servant to open a
furniture or objects away to be broken or forced open
trunk in his master's house—US vs. Saludo
outside the place of the robbery," in contrast and as
distinguished from the door indicated in paragraph No. Arm carried must not be used to intimidate—
2, subdivision (a) of same Art. 299, which refers to the
The weapon carried by the offender must not have been
doors of the building, the breaking of which is resorted
used to intimidate a person, for the reason that once
to by the malefactors to gain entrance into the building.
the circumstance of intimidation enters in the
Breaking the keyhole of the door of a wardrobe, which commission of the crime, it is sufficient to remove the
is locked, is breaking a locked furniture—People vs. offense from Art. 299 and place it within the purview of
Tupaz et al. Art. 294.

True indeed, the Revised Penal Code does not state, as Even those without arms are liable to the same penalty
one of the modes of committing robbery, the —Dec. Sup. Ct. of Spain Oct. 27, 1882
11
The liability for carrying arms while robbing an inhabited Note: Three requisites:
house is extended to each of the offenders who take
(1) Must be contiguous to the building;
part in the robbery, even if some of them do not carry
arms. (2) Must have an interior entrance connected therewith;
Reason why heavier penalty is imposed for robbery in a (3) Must form part of the whole.
dwelling house—US vs. Bajet
Orchards and lands used for cultivation, not
because of the possibility that the inhabitants in the dependencies—par. 3 Art. 301
former might suffer bodily harm during the commission
of the robbery.
Art. 302: Robbery in an uninhabited place or in a
private building
Art. 300: Robbery in an uninhabited place and by a
band Penalty: prision correccional in its medum and
maximum periods
Penalty: maximum penalty
Penalty next lower in degree [if property does not
Robbery in an inhabited house, public building or edifice exceed 250php]
devoted to religious worship is qualified when
committed by a band AND in an uninhabited place— Penalty next higher in degree [robbery under Arts.
294,295,297,299,300; where mail matter or large cattle
US vs. Morda: The two qualifications (uninhabited place is stolen]
and by a band) must concur.
1. That the offender entered an uninhabited place or a
The inhabited house, public building, or edifice devoted building which was not a dwelling house, not a public
to religious worship must be located in an uninhabited building, or not an edifice devoted to religious worship.
place—
2. That any of the following circumstances was
Distinction between the two classes of robbery as to present:
their being qualified—
a. The entrance was effected through an opening not
Robbery with force upon things (Art. 299), in order to be intended for entrance or egress;
qualified, must be committed in an uninhabited place
and by a band (Art. 300); while robbery with violence b. A wall, roof, floor, or outside door or window was
against or intimidation of persons must be committed in broken;
an uninhabited place or by a band. (Art. 295) c. The entrance was effected through the use of false
keys, picklocks or other similar tools;

Art. 301: What is an inhabited house, public building, d. A door, wardrobe, chest, or any sealed or closed
or building dedicated to religious worship and their furniture or receptacle was broken; or
dependencies e. A closed or sealed receptacle was removed, even if
Robbery in sunken ship— US vs. Rey the same be broken open elsewhere.

Note: A ship is covered by the term "inhabited house." 3. That with intent to gain, the offender took
The boxes which were taken from the ship were therefrom personal property belonging to another
reinforced with iron straps and nails. They were broken The "uninhabited place" is an uninhabited building—
by the defendant in order to take possession of the
money contained therein. The robbery committed is The "uninhabited place" mentioned in Art. 302 is a
covered by Art. 299, subdivision (b), No. 2. building, because paragraphs Nos. 1 and 3 speak of
"entrance," which necessarily refers to a building.
The place is still inhabited house even if the occupant Paragraph No. 2 speaks of parts of building
was absent—
"Building other than those mentioned in the first
Dependencies, defined— par. 2 Art. 301 paragraph of Art. 299."—
Dependencies of an inhabited house, public building or The place where the robbery is committed under Art.
building dedicated to religious worship — are all interior 302 must be a building which is not an inhabited house
courts, corrals, warehouses, granaries or inclosed places or public building or edifice devoted to religious
contiguous to the building or edifice, having an interior worship.
entrance connected therewith, and which form part of
the whole What the term "building" includes—

12
Under the term "building" is included any kind of Penalty: penalty next lower in degree than that
structure used for storage or safekeeping of personal prescribed in the preceding articles
property, such as (a) freight car and (b) warehouse
"In the cases enumerated in Articles 299 and 302."—
Entrance through an opening not intended for entrance
The penalty next lower in degree shall be imposed for
or egress, or after breaking a wall, roof, floor, door or
robbery of cereals, fruits, or firewood, only when the
window, or through the use of false keys, picklocks, or
robbery is committed by the use of force upon things,
other similar tools is not necessary, if there is breaking
without violence against or intimidation of any person,
of wardrobe, chest, or sealed or closed furniture or
in an inhabited house, public building, or edifice
receptacle, or removal thereof to be broken open
devoted to religious worship (Art. 299) or in an
elsewhere—
uninhabited place or private building
Unnailing of cloth over door of freight car is, breaking by
Cereals are seedlings which are the immediate product
force—US vs. Magsino
of the soil—
Breaking padlock is use of force upon things— People
The word "cereals" is not the correct translation of the
vs. Mesias
Spanish words "semilla alimenticia." "Semilla" means
Note: This ruling does not seem to be justified by any of seedling which is the immediate product of the soil.
the paragraphs of Art. 302. It cannot be under breaking
People vs. Rada: Palay (the local name for unhulled rice)
outside door, because only the padlock, not the door,
is "cereal" and is included in the term "semilla
was broken. It cannot be under use of false key, because
alimenticia" used in the Spanish text of the Revised
no false key was used.
Penal Code, as it is grain in its original state and, under
Use of fictitious name or pretending the exercise of proper conditions, can and will germinate into the plant
public authority, not in this article— that produces it.

The receptacle must be "closed" or "sealed."— The palay must be kept by the owner as "seedling" or
taken for that purpose by the robbers— People vs.
Although the phrase, "even if the same be broken open
Taugan
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
Art. 304: Possession of picklocks or similar tools
intention to open it by force.
Penalty: arresto mayor in its maximum period to prision
Penalty is based only on value of property taken—
correccional in its minimum period
Robbery in a store — when punishable under Art. 299 or
Prision correccional in its minimum and maximum
under Art. 302—
period [if offender is a locksmith]
1. If the store is used as a dwelling of one or more
Elements of illegal possession of picklocks or similar
persons, the robbery committed therein would be
tools.
considered as committed in an inhabited house under
Art. 299. (People vs. Suarez, G.R. No. L-6431, March 29, 1. That the offender has in his possession picklocks or
1954) similar tools.
2. If the store was not actually occupied at the time of 2. That such picklocks or similar tools are specially
the robbery and was not used as a dwelling, since the adopted to the commission of robbery.
owner lived in a separate house, the robbery committed
therein is punished under Art. 302. (People vs. Silvestre, 3. That the offender does not have lawful cause for
C.A., 34 O.G. 1535) such possession

3. If the store is located on the ground floor of the Actual use of picklocks or similar tools, not necessary in
house belonging to the owner of the store, having an illegal possession thereof—
interior entrance connected therewith, it is a
dependency of an inhabited house and the robbery
committed therein is punished under the last paragraph Art. 305: Use of false keys
of Art. 299. (U.S. vs. Tapan, 20 Phil. 211)

1. The tools mentioned in the next preceding

Art. 303: Robbery of cereals, fruits, firewood in an article
uninhabited place or private dwelling 2. Genuine keys stolen from the owner

13
 3. Any keys other than those intended by the Presumption of law as to brigandage — all are
owner for use in the lock forcibly opened by presumed highway robbers or brigands, if any of them
the offender carries unlicensed firearm—

Possession of false keys in paragraphs 2 and 3 of Art. The arms carried by the members of the band of
305, not punishable— robbers may be any deadly weapon—People vs. De La
Rosa et al.
This article provides no penalty
The term "armed" as used in the first paragraph of Art.
306 covers arms and weapons in general, not
Chapter 2: Brigandage necessarily firearms.

Brigandage, defined— Main object of law is to prevent formation of band of

robbers— US vs. Decusin et al.
Brigandage is a crime committed by more than three
armed persons who form a band of robbers for the To prevent the formation of such band
purpose of committing robbery in the highway or
The only things to prove are—
kidnapping persons for the purpose of extortion or to
obtain ransom, or for any other purpose to be attained a. That there is an organization of more than three
by means of force and violence armed persons forming a band of robbers.

Art. 306: Who are brigands—Penalty— b. That the purpose of the band is any o f those
enumerate d in Art. 306 .
Penalty: prision mayor in its medium period to reclusion
temporal In its minimum period [if the acts are not c. That they went upon the highway or roamed upon the
punishable by higher penalties] country for that purpose. (See U.S. vs. Decusin, et al.,
supra)
Maximum period [if any of the arms carried are
unlicensed firearm] d. That the accused is a member of such band

There is brigandage when — Previous activities considered in determining existence

of brigandage— People vs. Laporeda
1. There be at least four armed persons.
The term "highway" includes city streets— US vs. Tan
2. They formed a band of robbers.
Seco et al.
3. The purpose is any of the following:
"If the act or acts committed by them (brigands) are x x
a. To commit robbery in the highway; or x punishable by higher penalties in which case, they
shall suffer such high penalties."—
b. To kidnap persons for the purpose of extortion or to
obtain ransom; or If the brigands committed robbery with homicide or
kidnapping with a demand for ransom, which is
c. To attain by means of force and violence an y other penalized with higher penalty, they shall be prosecuted
purpose. for robbery with homicide or kidnapping and the
Must be a band of robbers— penalty for the crime actually committed shall be
imposed on them.
Art. 306 mentions "bands of robbers" which is formed
by more than three armed persons. Brigandage and robbery in band, distinguished—

Hence, a band of dissidents whose purpose is to attain Both brigandage and robbery in band require that the
by means of force and violence, the destruction of army offenders form a band of robbers
installations, cannot be convicted of brigandage. They In brigandage, the mere formation of a band for any of
do not form a band of robbers the purposes mentioned in the law is sufficient, as it
The existence of any of the purposes mentioned in Art. would not be necessary to show that the band actually
306 is sufficient— committed robbery in the highway, etc.; in robbery in
band, it is necessary to prove that the band actually
It would not be necessary to show, in a prosecution committed robbery, as a mere conspiracy to commit
under Art. 306, that a member or members of the band robbery is not punishable.
actually committed highway robbery, etc., in order to
convict him or them.
Art. 307: Aiding and abetting a band of brigands

14
Penalty: prision correccional in its medium period to insofar as they are inconsistent with this Decree are
prision mayor in its minimum period hereby repealed or modified accordingly.

Elements:

1. That there is a band of brigands. Chapter 3: Theft

2. That the offender knows the band to be of brigands. Theft, defined—

3. That the offender does any of the following acts: Theft is committed by any person who, with intent to
gain but without violence against or intimidation of
a. He in any manner aids, abets or protects such band
persons nor force upon things, shall take personal
of brigands; or
property of another without the latter's consent.
b. He gives them information of the movements of the
police or other peace officers of the Government; or
Art. 308: Who are liable for theft
c. He acquires or receives the property taken by such
brigands. The following are liable for theft—

Presumption of law as to knowledge—Art. 307 par. 2 1. Those who, (a) with intent to gain, (b) but without
violence against or intimidation of persons nor force
It shall be presumed that the person performing any of
upon things, (c) take, (d) personal property, (e) of
the acts provided in this article has performed them
another, (f) without the latter's consent
knowingly, unless the contrary is proven.
2. Those who, (a) having found lost property, (b) fail to
Highway robbery/brigandage under Presidential Decree
deliver the same to the local authorities or to its
No. 532—
owner.
Highway Robbery/Brigandage. — The seizure of any
3. Those who, (a) after having maliciously damaged the
person for ransom, extortion or other unlawful
property of another, (b) remove or make use of the
purposes, or the taking away of the property of another
fruits or object of the damage caused by them.
by means of violence against or intimidation of persons
or force upon things or other unlawful means, 4. Those who (a) enter an inclosed estate or a field
committed by any person on any Philippine Highway. where (b) trespass is forbidden or which belongs to
another and, without the consent of its owner, (c) hunt
Penalty: reclusion temporal in its minimum period
or fish upon the same or gather fruits, cereals or other
Reclusion temporal in its medium and maximum periods forest or farm products.
[physical injuries occur]
Elements of theft:
Death [If kidnapping for ransom or extortion, or murder
1. That there be taking of personal property.
or homicide, or rape is committed as a result or on the
occasion thereof] 2. That said property belongs to another.

Philippine Highway. — It shall refer to any road, street, 3. That the taking be done with intent to gain.
passage, highway and bridges or other parts thereof, or
4. That the taking be done without the consent of the
railway or railroad within the Philippines used by
owner.
persons, or vehicles, or locomotives or trains for the
movement or circulation of persons or transportation of 5. That the taking be accomplished without the use of
goods, articles, or property or both. violence against or intimidation of persons or force
upon things.
Any person who aids or protects highway robbers or
abets the commission of highway robbery or brigandage Theft, distinguished from robbery—People vs. Jaranilla
shall be considered as an accomplice—
What distinguishes theft from robbery is that in theft,
Penalty: punished in accordance with the Rules the offender does not use violence or intimidation or
prescribed by the Revised Penal Code does not enter a house or building through any of the
means specified in Article 299 or Article 302 in taking
It shall be presumed that any person who does any of
personal property of another with intent to gain.
the acts provided in this Section has performed them
knowingly, unless the contrary is proven Meaning of "taking" in theft—People vs. Mercado
Repealing Clause. — Pertinent portions of Act No. 3815, In theft, the taking away or carrying away of personal
otherwise known as the Revised Penal Code; and all property of another is not required as in larceny in
laws, decrees, or orders or instructions, or parts thereof, common law. Note the phrase used in Art. 308, which is,
15
"shall take personal property of another" — not shall Note: The accused should have been prosecuted for a
take away such property violation of Sec. 48 (a) of the Motor Vehicle Law, which
penalizes the act of taking a joy ride in a motor vehicle
When is taking complete so that the theft is
without the owner's consent.
consummated—
The element of "taking" referred to in the law means
In the case of People vs. Naval, et al., supra, the taking is
the act of depriving another of the possession and
considered complete only when the offender is able to
dominion of movable thing coupled with the intention,
place the thing taken under his control and in such a
at the time of the "taking," of withholding it with the
situation as he could dispose of it at once.
character of permanency.
In other cases, it was held that asportation is complete
The offender must have the intention of making himself
from the moment the offender had full possession of
the owner of the thing taken—
the thing, even if he did not have an opportunity to
dispose of the same. In the case of People vs. Rico, supra, the decision of the
Supreme Court of Spain of November 28,1903, is cited
When the place is surrounded by a fence or wall and
as to the meaning of the term "apoderar" or
one has to pass to check point before going out, is the
"apoderarse," that is, the offender must have the
taking complete before passing through the check point
intention of placing the property taken under his control
—
and of making himself the owner thereof
People vs. Diho: frustrated theft
There is "taking" even if the offender received the thing
[it was held that the crime committed is that of from the offended party—People vs. Roxas
frustrated theft, because the fact determinative of
The unlawful taking may occur at or soon after the
consummation in the crime of theft is the ability of the
transfer of physical possession (not juridical possession)
offender to dispose freely of the articles stolen, even if it
of the thing to the offender. The actual transfer of
were more or less momentarily.]
possession may not always and by itself constitute the
People vs. Espiritu et al.: consummated theft unlawful taking, but an act done soon thereafter by the
offender which may result in unlawful taking or
[it was held that the crime of theft was consummated asportation.
because the thieves were able to take or get hold ofthe
hospital linen and that the only thing that was But if the accused received the thing from another
frustrated, which does not constitute any element of person in trust or on commission, or for administration,
theft, is the use or benefit that the thieves expected to or under a quasi-contract or a contract of bailment, and
derive from the commission of the offense.] later misappropriated or converted the thing to the
prejudice of another, the crime committed is not theft,
The ruling in the case of People vs. Dino, supra, should but estafa under Art. 315, par. Kb), because under any of
be applied only in theft of bulky goods— People vs. those transactions, the juridical possession of the thing
Flores is transferred to the offender.
Must taking in theft have the character of permanency Personal property—
—People vs. Fernandez et al.
Personal property as an element of theft includes
It was held that the essential requisites of qualified theft electricity and gas because electricity, the same as gas,
were present: Second, there was intent to gain, is a valuable article of merchandise bought and sold like
because, in the words of Groizard, "by using things, we other personal property and is capable of appropriation
derive from them utility, satisfaction, enjoyment, by another.
pleasure, or what amounts to the same thing, real gain."
By gain is meant not only the acquisition of a thing Promissory note and check may be the object of theft,
useful to the purposes of life but also the benefit which because while they may not be of value to the accused,
in any other sense may be derived or expected from the they undoubtedly are of value to the offended party.
act which is performed. The accused, who used the car
US vs. Tan Jenjua: The amount which a document
to take their lady friends for a ride, derived gain from
represents must serve as the basis of the penalty.
the use of this means of transportation.
That the property belongs to another—
People vs. Galang et al.:
Thus, he who takes away the property pledged by him
It was held that the accused were not guilty of qualified
to another, without the latter's consent, does not
theft of motor vehicle, because their intention was to
commit theft, but estafa, for he is the owner of the thing
return it after the joy ride.
taken by him.

16
Selling the share of a partner or joint owner is not theft Dissenting—
—
Animo lucrandi means, as Viada says, "uno vil codicia"
US vs. Reyes: His unlawful disposition of the share and not "un sentimiento de odio o de venganza."
belonging to his partner or joint owner was
by his act of delivering the records to the Committee on
undoubtedly a violation of their contract and a trespass
Good Government to convince that Committee that said
upon the rights of another but not an act constituting
records would reveal complainant's tax evasion,
the crime of theft
demonstrated that his intention was not to satisfy his
Employee is not the owner of separation pay which is greed but to take revenge against the complainant.
not actually delivered to him— People vs. De Jesus et al.

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 Actual or real gain, not necessary in theft— People vs.
each as separation pay, did not automatically vest Mercado
ownership of the money in them for lack of proper
delivery. The signing of the separation papers was a It is enough that on taking them, he was then actuated
condition which the employer intended to impose by the desire or intent to gain.
before making delivery. Hence, when the accused took Taking without the consent of the owner—
the money without signing the papers, they were taking
something which did not belong to them. Note: The law does not say without the knowledge of
the owner of the thing taken. Hence, even if the owner
Ownership not transferred before goods are weighed or knew the taking, but he did not consent to it, the
measured— accused is still liable for theft.
In the sale of goods, which are usually tried, measured Allegation of owner's lack of consent cannot be
or weighed, if, after the sale but before the measuring dispensed with in charging an ordinary theft— Pua Yi
or weighing, a part of the goods covered by the contract Kun vs. People
is taken by the purchaser, without the consent of the
vendor, he is guilty of theft, because until the weighing In view of the clear text of the law, an information or
or measuring is done, the transfer of the ownership is charge that does not aver this lack of consent is
not effected manifestly bad and insufficient, and may be quashed for
failure to allege an essential element of the deficit.
As to intent to gain—
There is no theft when the taking of personal property is
Intent to gain is presumed from the unlawful taking of with the consent of its owner—
personal property belonging to another.
Robbery and theft compared—People vs. Chan Wat
US vs. Viera: But if a person takes personal property
from another believing it to be his own, the For robbery to exist, it is necessary that there should be
presumption of intent to gain is rebutted and, therefore, a taking against the will of the owner; and for theft, it
he is not guilty of theft. sufficed that consent on the part of the owner is lacking.

Satisfaction and pleasure derived from the act of giving The taking of personal property belonging to another
to another what had been stolen is a real gain. must be accomplished without violence against or
intimidation of person—
People vs. Santos: Defendant took and carried away
some building materials without the owner's knowledge The rule is different when the violence used resulted in
and consent and gave them to another person. Held: homicide, rape, intentional mutilation, or serious
There is theft even if defendant did not take them for his physical injuries defined in paragraphs 1 and 2 of Art.
own use. 263. In any of such cases, the crime is robbery
complexed with one of such crimes, even if the taking of
Is there intent to gain when the employee took the the personal property was already complete when the
papers of his employer and delivered them to the violence was employed.
government investigators as an act of revenge—People
vs. Padilla When no force or violence was employed in the taking,
as victim was already heavily wounded— People vs.
By the word gain is meant not only the acquisition of a Basao
thing useful to the purpose of life but also the benefit
which in any other use may be derived or expected from It is not robbery when violence is for a reason entirely
the act which is performed. foreign to the fact of taking—People vs. Birueda

17
Held: The fact that the owner of the money was tied at A found in his carretela a purse containing money and
the time the money was taken cannot be considered as jewelry left by a passenger. A delivered it to B, a
violence for the purpose of classifying the crime as policeman, with a request to give it to C, the owner
robbery. The offended party was tied for some hours thereof. B did not give it to C and appropriated it.
previously for a reason entirely foreign to the act of
Held: B is liable for theft, because although B is not a
taking the money
finder in fact, he is a finder in law.
Force upon things in theft—
The law does not require knowledge of the owner of the
Unless the force upon things is employed to enter a lost property—
building, the taking of the personal property belonging
Held: As long as the accused knew or had reason to
to another with intent to gain is theft and not robbery.
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
Presumption as to possession of stolen property— US owner of the lost property
vs. Ungal

When a person has in possession, part of the recently

Intent to gain is inferred from deliberate failure to
stolen property, he is presumed to be the thief of all, in
deliver the lost property to the proper person—People
the absence of satisfactory explanation of his
vs. Rodrigo
possession.
Finder of hidden treasure who misappropriated the
People vs. Tanatanao: When the stolen property is not
share pertaining to the owner of the property is guilty of
found in the possession of the accused, his prior
theft as regards that share—People vs. Longdew
possession may be proved by circumstantial or direct
evidence of his disposal of the property (36 C.J. Removing or making use of fruits or object of property
895,896), in which case the presumption attaches to maliciously damaged (Paragraph No. 2, Art. 308)—
him. The presumption regarding possession of stolen People vs. Morillo
property does not exclusively refer to actual physical
A defendant who shot, killed and slaughtered the cattle
possession thereof but may include prior unexplained
of another, which had destroyed defendant's plantation,
possession.
and distributed the meat among himself and his
Note: It is required that the property be recently stolen. neighbors, is guilty of simple theft.
Hence, if the property was stolen a long time ago, the
Hunting, fishing or gathering fruits, etc., in enclosed
presumption does not lie.
estate (Paragraph No. 3, Art. 308)—
Finder of lost property (Paragraph No. 1, Art. 308)—US
Elements:
vs. Santiago
1. That there is an enclosed estate or a field where
Held: The accused is guilty of theft as a finder of lost
trespass is forbidden or which belongs to another;
property who retained part of it with intent to gain.
2. That the offender enters the same;
How to prove this kind of theft—
3. That the offender hunts or fishes upon the same or
It is necessary to prove:
gathers fruits cereals or other forest or farm products in
(1) The time of the seizure of the thing; the estate or field; and

(2) That it was a lost property belonging to another; and 4. That the hunting or fishing or gathering of products is
without the consent of the owner.
(3) That the accused having had the opportunity to
return or deliver the lost property to its owner or to the Fishing should not be in the fishpond within the field or
local authorities, refrained from doing so. estate—

Delay in the delivery of lost property to the local If the fish is taken from fishpond or fishery, it is qualified
authorities is immaterial, when the finder surrendered it theft under Article 310
voluntarily to the owner when the latter came to his
Presidential Decree No. 534, which took effect on
house to get it—People vs. Carani
August 8,1974, defines illegal fishing and prescribes
Paragraph No. 1 of Art. 308 not limited to actual finder stiffer penalties therefor, as follows—
—People vs. Avila
Prohibition—Sec. 2

18
 It shall be unlawful for any person to catch, take or upon ignition by friction, concussion, percussion or
gather or cause to be caught, taken or gathered fish or detonation of all parts of the compound, kill, stupefy,
fishery/aquatic products in Philippine waters with the disable or render unconscious any fish or fishery/aquatic
use of explosives, obnoxious or poisonous substances or products. It shall also refer to the use of any other
by the use of electricity. Provided, That the Secretary of substance and/or device that causes explosion capable
Natural Resources may, subject to such safeguards and of producing the said harmful effects on fish or
conditions he deems necessary, allow for research, fishery/aquatic products.
educational or scientific purposes only the use of
d. Fishing with the use of Obnoxious or Poisonous
explosives, obnoxious or poisonous substance or
Substance. — Means the use of any substance or
electricity or catch, take or gather fish or fishery/aquatic
chemical, whether in raw or processed form, harmful or
products in specified areas.
harmless, which kill, stupefy, disable, or render
Penalties—Sec. 3 unconscious fish or fishery/aquatic products.

1. Use of explosives: 10-12 years imprisonment; e. Electro-fishing. — Means the use of electricity
generated by dry cell batteries, electric generators or
With physical injury: 12-20 years imprisonment
other source of electric power to kill, stupefy, disable or
Death: 20 years- life imprisonment or death render unconscious fish or fishery/ aquatic products. It
shall include the use of rays or beams of whatever
nature, form or power.
2. Use of obnoxious or poisonous substances: 8-10 years
imprisonment
f. Violations of Rules and Regulations. — Means
Physical injury: 10-12 years violations of Fisheries Administrative Orders, rules and
Death: 20 years- life imprisonment or death regulations promulgated by the Secretary of Natural
Resources.
3. Violation of Sec. 1 par. f: 6 months to 4 years
imprisonments and a fine between 500-5000php g. Persons. — Include natural and juridical persons,
unless the context intends otherwise.
Dealing in illegally caught fish or fishery/aquatic
products— Sec. 4 Repealing Clause. Act No. 4003, as amended, Republic
Act No. 6451, laws, decrees, orders, rules and
Penalty: 2-6 years imprisonment regulations or parts thereof which are inconsistent with
Definition of terms— this Decree are hereby repealed or modified
accordingly.
a. Philippine Waters. — Include all bodies of water
within Philippine Territory such as rivers, streams, "Highgrading" or theft of gold is punished by
creeks, brooks, ponds, swamps, lagoons, gulfs, bays and Presidential Decree No. 581—
seas and other bodies of water now existing, or which Sec. 1—
may hereafter exist in the provinces, cities,
municipalities, municipal districts, and barrios and the Penalties: prision correccional in its minimum period
sea or fresh water around, between and connecting Prision correccional in its medium period, including
each of the islands of the Philippine Archipelago, penalties in Art. 309 of the Revised Penal Code [for
irrespective of its depth, breadth, length and dimension, employees or laborer of the mining claim]
and all other waters belonging to the Philippines by
historic or legal title, including the territorial sea, the Penalty lower in degree [frustrated]
seabed, the insular shelves and other submarine areas
Penalty two degrees lower [attempted]
over which the Philippines has sovereignty or
jurisdiction. Sec. 2—Presumption in unauthorized possession

b. Fish and Fishery /Aquatic Products. — Fish includes all Sec. 3—arresto mayor in its maximum period [buying
fishes and other aquatic animals such as crustaceans stolen gold]
(crabs, prawns, shrimps and lobsters, mollusks (clams,
Sec. 4—Repealing clause
mussels, scallops, oysters, snails and other shellfish).
Fishery/aquatic products include all products of aquatic Sec. 5—Effectivity [immediately]
resources in any form.
The use of tampered water or electrical meters to steal
c. Fishing with the use of Explosives. — Means the use water or electricity—
of dynamite other explosives, or chemical compound
that contain combustible elements or ingredients that,
19
Presidential Decree No. 401, which took effect on 8. Theft committed under the impulse of hunger,
March 1, 1974, punishes with prision correccional in its poverty, or difficulty of earning a livelihood for
minimum period or a fine ranging from P2.000 to the support of himself or his famiy
P6.000, or both [also includes the employee or officer Arresto menor in its minimum period or a fine
of the utility company in connivance] not exceeding 50php

People vs. Revola: Theft of electricity can be effected Basis of penalty in theft—
even without illegal or unauthorized installations of any
The basis of the penalty in theft is (1) the value of the
kind by, for instance, any of the following means:
thing stolen, and in some cases (2) the value and also
1) Turning back the dials of the electric meter; the nature of the property taken, or (3) the
circumstances or causes that impelled the culprit to
2) Fixing the electric meter in such a manner that it will
commit the crime.
not register the actual electric consumption;
Offender is liable for theft of whole car taken to another
3) Under reading of electric consumption; and
place, even if tires only are taken away—People vs.
4) Tightening screw of rotary blades to slow down Carpio
rotation of the same.
The thieves are liable for the value of the whole car,
Theft is not a continuing offense— People vs. Mercado because the gist of the offense of larceny consists in the
furtive taking and asportation of property, animo
The American rule that larceny is a continuing offense lucrandi and with intent to deprive the owner of the
does not apply to theft because "carrying away," which possession thereof. Since the thieves effectively
is one of the characteristics of larceny, is not an essential deprived the owner of the possession of the entire
ingredient of theft. (Duran, et al. vs. Tan, et al., 85 Phil. automobile, the offense of larceny comprised the whole
476) Thus, the theft of large cattle in Gapan, Nueva car. The deprivation of the owner and the trespass upon
Ecija, was consummated in that municipality and the his right of possession were complete as to the entire
Court of First Instance of Pampanga to which province car.
the large cattle was taken by the thief had no
jurisdiction over the offense. The Court of First Instance
of Nueva Ecija had jurisdiction over the offense
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—Cristobal vs.
Art. 309: Penalties People
1. Value stolen between 12,000-20,000php
Prision mayor in its minimum and medium
periods: Art. 310: Qualified theft
a. Maximum penalty and additional 1 year
Penalty: penalty next higher by two degrees than those
imprisonment for additional 10,000php
respectively specified in the preceding article
[exceeding 22,000php]
b. Prision mayor or reclusion temporal Theft is qualified —
2. Value stolen between 6,000-12,000php
1. If the theft is committed by a domestic servant.
Prision correccional in its medium and maxim
periods 2. If the theft is committed with grave abuse of
3. Value stolen between 200-6000php confidence.
Prision correccional in its minimum and medium
periods 3. If the property stolen is a (a) motor vehicle, (b) mail
4. Value stolen between 50-200php matter, or (c) large cattle.
Arresto mayor in its medium period to prision 4. If the property stolen consists of coconuts taken
correccional in its minimum period from the premises of a plantation.
5. Value stolen between 5-50php
Arresto mayor in its full extent 5. If the property stolen is fish taken from a fishpond or
6. Value stolen not exceeding 5php fishery.
Arresto mayor in its minimum and medium 6. If property is taken on the occasion of fire,
periods earthquake, typhoon, volcanic eruption, or any other
7. If theft committed under par. 3 of preceding calamity, vehicular accident or civil disturbance
article; value does not exceed 5php
Arresto mayor and a fine not exceeding 200php

20
The abuse of confidence must be grave— validly novated by the settlement of the obligation of
the offender. Whatever was said in that case, therefore,
There must be allegation in the information and proof of
cannot be invoked in the present case where no
a relation, by reason of dependence, guardianship or
contractual relationship or bilateral agreement, which
vigilance, between the accused and the offended party,
can be modified or altered by the parties, is involved.
that has created a high degree of confidence between
them, which the accused abused. When the purpose of taking the car is to destroy by
burning it, the crime is arson— People vs. Solis et al.
Theft by housemate is not always qualified— People vs.
Koe Song The antecedent occurrence which preceded the actual
taking away of the car as above stated, points out the
But theft by housemate is not always qualified, because
motive for the act. It is, therefore, clear that the accused
while this fact constitutes a certain abuse of confidence,
never meant to appropriate it for himself nor to derive
since living together under the same roof engenders
any profit, pleasure or benefit from it. The act of the
some confidence, it is not necessarily grave.
accused in moving the car to a certain distance
Theft by laborer is not qualified theft— People vs. Celis undoubtedly was for no other purpose than to prevent
or delay immediate discovery of the act to be done by
The mere circumstance that the accused worked as a him, thus avoiding his being identified while he was
laborer in the place where the theft was committed, near the place where the crime was committed and
does not suffice to create the relation of confidence and likewise prevent immediate assistance being rendered
intimacy that the law requires. by the authorities.
Theft of any material, spare part, product or article by The crime committed by the appellant is not qualified
employees and laborers is heavily punished— PD No. theft but arson under the provisions of Article 321,
133 paragraph (2), subsection (b), and paragraph (3),
Penalty: prision correccional to prision mayor subsection (a). It is not malicious mischief.

People vs. Matilde: 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 was "working on, using or producing."
Theft of motor vehicle is punished under Rep. Act No.
The confidence gravely abused must be that existing
6539—Anti-Carnapping Act of 1992
between the offended party and the offender—People
vs. Cabahug Qualified carnapping is punishable by Reclusion
perpetua to death
Industrial partner is not liable for qualified theft—
The unlawful taking of motor vehicles is now covered by
An industrial partner who sells personal property
the anticarnapping law, and not by the provisions on
acquired with funds supplied by the capitalist partner,
qualified theft or robbery—
and who is responsible therefor in case of loss, has, in
legal contemplation, both material and juridical Theft of motor vehicle by the person who received it—
possession of the property, and may not be held liable People vs. Isaac
for qualified theft by reason of said sale.
Where the accused was entrusted by its owner with a
The novation theory applies only when there is passenger jeepney under the so called "boundary
contractual relationship between the accused and the system"…the subsequent sale of the jeepney to another
complainant— People vs. Tanjuacto by the accused constitutes the crime of qualified theft

This argument is anchored on the alleged recognition by People vs. Noveno et al: But when the motor vehicle is
this Court of the novation theory (to extinguish criminal not operated as a public utility and the same is leased
liability) in the case of People vs. Nery. Reliance on the by the owner to the accused who sold the same, the
Nery case, in support of the contention that the crime committed is estafa, not qualified theft
acceptance by the complainant of payment converted
Is it qualified theft if the mail matter is taken from the
the liability of the accused into a civil obligation or else
possession of the addressee—
that it estopped said complainant from proceeding with
the prosecution of the case, is misplaced and The law is silent on this point. All that it says is, "if the
unwarranted. Firstly, in the Nery case, there was property stolen is x x x mail matter."
contractual relationship between the parties that can be
Theft of large cattle—
21
The word "cattle" is denned as including horses, asses, Presumption of cattle rustling… failure to exhibit
mules, sheep, goats and swine required documents shall be prima facie evidence that
the large cattle in his possession, control, or custody are
People vs. Nazareno: Act No. 2030, which amended
fruits of the crime of cattle rustling.
Articles 503, 508, 512 and 520 of the Old Penal Code
regarding theft of large cattle, provides that for Penal provisions:
purposes of that law, the term "large cattle" includes
Penalty- prision mayor in its maximum period to
"carabaos, horses, mules, asses, and all members of the
reclusion temporal in its medium period
bovine family." According to the dictionary, the word
"bovine" refers to animals related to or resembling oxen Reclusion temporal or reclusion perpetua [if there is
or cows To include goats in the term "large cattle" would violence or intimidation, or force]
render meaningless the adjective "large." The law
evidently has made a distinction between large cattle Reclusion perpetua [if there is serious physical injury, or
and small cattle. death]

People vs. Morillo: To constitute the crime of qualified Accessory penalty: disqualification to hold public office
theft by taking large cattle, the animal must be taken and right of suffrage [if offender is a government official
alive. Thus, killing a cow on the spot where it was found or employee]
and taking its meat is simple theft, because there was Deportation [offender is an alien]
no taking of the cow but only its meat.
Large cattle as herein use include the cow, carabao,
People vs. Valiente et al.: But if the offender, in killing horse, mule, ass, or other domesticated member of the
the cow of another, acted with hatred or revenge bovine family
against the owner thereof, as when the cow was killed
because it had entered and destroyed the plants of the Repealing clause: The provisions of Arts. 309 and 310 of
offender, the crime committed is not even simple theft, Act No. 3815, otherwise known as the Revised Penal
but malicious mischief under Art. 329. Code, as amended, and all laws, decrees, orders,
instructions, rules, and regulations which are
Theft of large cattle by the person who received it— inconsistent with this decree are hereby repealed or
When for the purpose of plowing his field, the accused modified accordingly.
borrowed a carabao from its owner, but after using the The coconuts must be taken from the premises of a
same, he sold it to a third person and spent the plantation—People vs, Esmillo
proceeds of the sale, the crime committed is estafa, not
qualified theft. The reason for this opinion is that the The stealing of coconuts when they are still in the tree
accused received the carabao under the contract of or deposited on the ground within the plantation is
commodatum. The accused had the juridical possession qualified theft. When the coconuts are stolen in any
of the animal when he sold it. other place, it is simple theft.

People vs. Bangay: But the herdsman who slaughtered Reason for providing a heavier penalty for theft of
one of the cows under his care and took the meat coconut— People vs. Isnain
thereof is guilty of qualified theft, because he had In the matter of theft of coconuts, the purpose of the
merely the physical possession of the cow, the legal heavier penalty is to encourage and protect the
possession thereof being in the owner. development of the coconut industry as one of the
Taking at the same time several cows is only one crime sources of our national economy.
—People vs. Tumlos The fish must be taken from the fishpond or fishery—
Anti-Cattle Rustling Law of 1974 The term "fish" includes not only the fishes proper but
PD No. 533 also many other aquatic animals like crabs, prawns,
shrimps, lobsters, clams, mussels, scallops, snails,
Cattle rustling is the taking away by any means, method, oysters, and other mollusks or shell fish
or scheme, without the consent of the owner/raiser, of
any of the animals (classified as large cattle) whether or "Fishery"is a place where fish are bred or caught
not for profit or gain, or whether committed with or (Webster's Dictionary). The term "fishery" is also
without violence or intimidation of any person or force defined as "fishing grounds."
upon things. It includes the killing of large cattle, or Definition of the term "fishery" by Webster, is the fish
taking its meat or hide without the consent of the corral in the sea included? This being also an industry
owner/ raiser. which cannot be efficiently watched in view of its
location, it would seem that the taking offish from the
fish corral is qualified theft.
22
Timber smuggling from, and illegal cutting of logs in, Manager or any officer thereof who knows or should
public forest and forest reserves are punished as have known the commission of the offense shall be
qualified theft by Presidential Decree No. 330 (1973)— liable

Sec. 1- Any person whether natural or juridical who Sec. 5—Presumption of Fencing: Mere possession of any
directly or indirectly cuts, gathers, removes, or smuggles good, article, item object, or anything of value which
timber, or other forest products, either from any of the has been the subject of robbery or thievery shall be
ublic forests, forest reserves and other kinds of public prima facie evidence of fencing
forests whether under license or lease, or from any
Sec. 6—Clearance/permit to sell used secondhand
privately owned forest lands in violation of existing laws,
articles
rules and regulations shall be guilty of the crime of
qualified theft as defined under Arts. 308-310 of the Establishments concerned must secure clearances from
Revised Penal Code the station commander of the Integrated National Police
of their city or town
Sec. 2—All laws, rules, and regulations inconsistent
herewith are hereby repealed, or modified accordingly Chief of the Constabulary/Director General will
promulgate rules and regulations to carry out this
provision.
Anti-Fencing Law--PD No. 1612
Failure to comply will result in a conviction as a fence
Sec. 1: Title—Anti-Fencing Law of 1979
Fencing: elements—Dizon-Pamintuan vs. People
Sec. 2—Definition of terms:
1. The crime of robbery or theft has been committed.
Fencing is the act of any person who, with intent to gain
2. The accused, who is not a principal or accomplice in
for himself or for another, shall buy, receive, possess,
the commission of the crime of robbery or theft, buys,
keep, acquire, conceal, sell, dispose of, or shall buy and
receives, possesses, keeps, acquires, conceals, sells or
sell, or in any manner deal in any article, item, object, or
disposes, or buys and sells, or in any manner deals in
anything of value which he knows, or should be known
any article, item, object or anything of value, which has
to him, to have been derived from the proceeds of the
been derived from the proceeds of the said crime.
crime of robbery or theft
3. The accused knows or should have known that the
Fence includes any person, firm, association,
said article, item, object or anything of value has been
corporation, or partnership, or other organization
derived from the proceeds of the crime of robbery or
who/which commits the act of fencing
theft.
Sec. 3—Penalties
4. There is, on the part of the accused, intent to gain
a. Prision mayor [value between 12,000-22,000php] for himself or another.

Maximum penalty, with additional 1 year (not exceeding The crimes of robbery and theft, on the one hand, and
20 years) for every additional 10,000php [exceeding fencing, on the other, are separate and distinct offenses
22,000php] — Dizon-Paminutan vs. People

Reclusion temporal and accessory penalties under the [Prior to PD 1612: fencing is committed by an accessory
Revised Penal Code (Art. 19 RPC) penalized under Arts. 53,55, and 57]

b. Prision correccional in its medium and maximum P.D. No. 1612 was enacted to "impose heavy penalties
periods [value between 6,000-12,000php] on persons who profit by the effects of the crimes of
robbery and theft." Evidently, the accessory in the
c. prision correccional in its minimum and medium
crimes of robbery and theft could be prosecuted as such
periods [value between 200-6000php]
under the Revised Penal Code or under P.D. No. 1612.
d. Arresto mayor in its medium period to prision However, in the latter case, he ceases to be a mere
correccional in its minimum period [value between 60- accessory but becomes a principal in the crime of
200php] fencing…The state may thus choose to prosecute him
either under the Revised Penal Code or P.D. No. 1612,
e. Arresto mayor in its medium period [value between although the preference for the latter would seem
5-50php] inevitable considering that fencing is a malum
f. Arresto mayor in its minimum period [value below prohibitum, and P.D. No. 1612 creates a presumption of
5php] fencing and prescribes a higher penalty based on the
value of the property.
Sec. 4—Liability of Officials of Juridical Persons

23
Art. 311: Theft of the property of the National Library stealth, during the absence of the owner or of the
and National Museum person in charge of the property, there is only civil
liability
Penalty: arresto mayor or a fine ranging from 200-
500php or both; or higher penalty provided under the Violence or intimidation must be the means used in
provisions of this code occupying real property or usurping real right belonging
to another— People vs. DImacutak et al.
Theft of property on National Library and Museum has a
fixed penalty regardless of its value— 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,
Chapter 4: Usurpation the accused told him that they would kill anyone who
would try to drive them away and threatened him with
Art. 312: Occupation of real property or usurpation of their bolos and chased him away. The accused are not
real property liable for usurpation of real property under Art. 312.
Penalty: penalty for acts of violence and a fine between Art. 312 is not applicable to a case of open defiance of
50php-100php the writ of execution issued in the forcible entry case—
Fine from 200-500php [if the value of gain cannot be People vs. Leyson et al.
ascertained] 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
Acts punishable under Art. 312: imprisonment not exceeding 6 months, or both.
1. By taking possession of any real property belonging Criminal action for usurpation of real property, not a bar
to another by means of violence against or to civil action for forcible entry—Pitargue vs. Sorilla et
intimidation of persons. al.
2. By usurping any real rights in property belonging to "In addition to the penalty incurred for the acts of
another by means of violence against or intimidation violence executed by him."—
of persons.
However, the offender who may have inflicted physical
injuries in executing acts of violence shall suffer the
Elements: penalty for physical injuries also.

a. That the offender takes possession of any real Distinguished from theft or robbery—
property or usurps any real rights in property. (a) While there is taking or asportation in theft or
b. That the real property or real rights belong to robbery, there is occupation or usurpation in this crime.
another. (b) In theft or robbery, personal property is taken; in this
c. That violence against or intimidation of persons is crime, there is real property or real right involved.
used by the offender in occupying real property or (c) In both crimes, there is intent to gain.
usurping real rights in property.
Republic Act No. 947 punishes entering or occupying
d. That there is intent to gain public agricultural land including public lands granted to
The real property or real rights must belong to another private individuals—
— Penalty: fine not exceeding 1000php, or an
If the defendant has shown that he was the owner of imprisonment not exceeding 1 year, or both
the land in question and the offended party was a mere
possessor, Art. 312 is not applicable. (U.S. vs. Fuster, 2
Phil. 695) If in taking possession of the said land, the Art. 313: Altering boundaries or landmarks
defendant used violence or intimidation, the crime Penalty: arresto menor or a fine not exceeding 100php,
committed is grave coercion. or both
There is only civil liability, if there is no violence or Elements:
intimidation in taking possession of real property—
People vs. Dimacutak et al. 1. That there be boundary marks or monuments of
towns, provinces, or estates, or any other marks
Thus, if the accused took possession of the land of the intended to designate the boundaries of the same.
offended party through other means, such as strategy or
24
2. That the offender alters said boundary marks 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
Is intent to gain necessary under Art. 313— fraudulent insolvency.

Mere alteration of the boundary marks or monuments The person prejudiced must be the creditor of the
intended to designate the boundaries of towns, offender— People vs. Tan Diong
provinces or estate is punishable.
Distinguished from the Insolvency Law—
Fraudulent intent is not necessary for the crime to exist.
The Insolvency Law requires for its application that the
(Guevara)
criminal act should have been committed after the
Meaning of the word "alter."— Albert institution of insolvency proceedings.

The word alter has a general and indefinite meaning. Under the present article, there is no such requirement,
Any alteration of boundary marks is enough to and it is not necessary that the defendant should have
constitute the material element of the crime. been adjudged bankrupt or insolvent.
Destruction of stone monument or taking it to another
place, or removing a fence, is altering.
Chapter 6: Swindling and other delicts

Art. 315: Swindling [estafa]

Chapter 5: Culpable Insolvency
Penalty:
Art. 314: Fraudulent insolvency
1st. Prision correccional in its maximum period to prision
Penalty: prision mayor
mayor in its minimum period [amount of fraud between
Prision mayor [if he be a merchant] 12,000-22,000php]

Prision correccional in its maximum period to prision Maximum period and additional 1 year (not exceeding
mayor in its minimum period [if not a merchant] 20 years) for every additional 10,000php [exceeding
22,000php]
Elements:
Prision mayor or reclusion temporal [with other
1. That the offender is a debtor; that is, he has accessory penalties in this code]
obligations due and payable.
2nd. Prision correccional in its minimum and medium
2. That he absconds with his property. periods [6000-12000php]
3. That there be prejudice to his creditors. 3rd. arresto mayor in its maximum period to prision
Actual prejudice, not intention alone, is required— correccional in its minimum period [200-6000php]
People vs. Sy Gesiong 4th. Arresto mayor in its medium and maximum periods
Hence, even if the debtor disposes of his property, [below 200 with unfaithfulness or abuse of confidence]
unless it is shown that such disposal has actually Elements of estafa in general:
prejudiced his creditor, conviction will not lie.
Fraudulent concealment of property is not sufficient if 1. That the accused defrauded another (a) by abuse of
the creditor has some other property with which to confidence, or (b) by means of deceit; and
satisfy his obligation
2. That damage or prejudice capable of pecuniary
People vs. Guzman: The mere circumstance that a estimation is caused to the offended party or third
person has disposed of his merchandise by removing person.
them from the place where they are kept would not
The first element covers the three different ways of
necessarily imply fraudulent insolvency which requires
committing estafa under Art. 315—
malice, especially so as in this case where the defendant
delivered part of the proceeds of the sale to his creditor Thus, estafa is committed —

Being a merchant is not an element of this offense— (a) with unfaithfulness or abuse of confidence;

If the accused is a merchant, a higher penalty shall be (b) by means of false pretenses or fraudulent acts; or
imposed
(c) through fraudulent means.
Real property may be involved—People vs. Chong Chuy
The three ways of committing estafa under Art. 315 may
Limgobo
be reduced to two only. The first form under subdivision
25
No. 1 is known as estafa with abuse of confidence, and Altering the substance may constitute violation of Pure
the second and third forms under subdivisions Nos. 2 Food Law—
and 3 cover estafa by means of deceit
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

When there is no agreement as to the quality of the

Deceit is not an essential requisite of estafa with abuse
thing to be delivered, the delivery of the thing not
of confidence— US vs. Pascual
acceptable to the complainant is not estafa— People vs.
Note: It will be noted that "abuse of confidence" and Bastiana
"deceit" are two different means of committing estafa
"Even though such obligation be based on an immoral
under Art. 315. Where there is fraudulent conversion or
or illegal consideration."—
misappropriation of the property received in trust, on
commission, for administration, or under any other By specific provision of paragraph (a) of subdivision No.
obligation involving the duty to make delivery of or to 1, Art. 315, the crime of estafa may arise even if the
return the same, deceit is not an essential element of thing to be delivered, under the obligation to deliver it,
estafa. is not a subject of lawful commerce, such as opium.

The second element — the basis of the penalty— Note the case of People vs. Manansala, et al., 58 Phil.
796, where the accused was found guilty of estafa, even
It is necessary that the damage or prejudice be capable
if the thing which he promised to deliver was opium.
of pecuniary estimation, because the amount of the
damage or prejudice is the basis of the penalty for
estafa.
Elements of estafa with abuse of confidence under
With unfaithfulness or abuse of confidence, namely— subdivision No. 1, par. (b), of Art. 315:

By altering the substance, quantity, or quality of 1. That money, goods, or other personal property be
anything of value which the offender shall deliver by received by the offender in trust, or on commission, or
virtue of an obligation to do so, even though such for administration, or under any other obligation
obligation be based on an immoral or illegal involving the duty to make delivery of, or to return, the
consideration. same;

Elements of estafa with unfaithfulness: 2. That there be misappropriation or conversion of

such money or property by the offender, or denial on
1. That the offender has an onerous obligation to
his part of such receipt;
deliver something of value.
3. That such misappropriation or conversion or denial
2. That he alters its substance, quantity, or quality.
is to the prejudice of another; and
3. That damage or prejudice is caused to another.
4. That there is a demand made by the offended party
There must be an existing obligation to deliver to the offender.
something of value—People vs. Gansai
Tubb vs. People: Note: The 4th element is not necessary
Under the provision of par. 1(a), Art. 315, the obligation when there is evidence of misappropriation of the
to deliver already existed, and the offender, on making goods by the defendant.
the delivery, has altered the substance, quantity or
quality of the thing he delivered.
Check is included in the word "money."— Galvez vs. CA
By virtue of an onerous obligation—
Meaning of juridical possession—
Thus, if the thing delivered had not been fully or
partially paid for when it was received by the other Juridical possession means a possession which gives the
party, the person making the delivery is not liable for transferee a right over the thing which the transferee
estafa, even if there was an alteration of the substance, may set up even against the owner
quantity, or quality of the thing delivered as there was
Presumption as to kind of possession— US vs. De Vera
no damage caused.
When the delivery of a chattel has not the effect of
Altering the substance, quality or quantity of the things
transferring the juridical possession thereof, or title
to be delivered.—
thereto, it is presumed that the possession of, and title
to, the thing so delivered remain in the owner.

26
 Art. 1482. Whenever earnest money is given in a
contract of sale, it shall be considered as part of the
Presidential Decree No. 115
price and as proof of the perfection of the contract
Sec. 13: Penalty clause

The failure of an entrustee to turn over the proceeds of

No "obligation involving the duty x x x to return the
the sale of the goods, documents, or instruments
same.”—People vs. Figueroa
covered by a trust receipt to the extent of the amount
owing to the entruster or as appears in the trust receipt In estafa with abuse of confidence under paragraph (b),
or to return said goods, documents or instruments if subdivision No. 1 of Art. 315, the very same thing
they were not sold or disposed of in accordance with received must be returned, if there is an obligation to
the terms of the trust receipt shall constitute the crime return it. If there is no obligation to return the very
of estafa, punishable under the provisions of Art. 315, same thing received, because ownership is transferred,
par. 1 (b) Act No. 3815 as amended, otherwise known as there is only civil liability
the Revised Penal Code

The phrase "or under any other obligation involving the

When the transaction of purchase and sale fails, there is
duty to make delivery of, or to return the same,"
no estafa if the accused refused to return the advance
includes quasi-contracts and certain contracts of
payment.— Esguerra vs. People
bailment—
Obviously, an advance payment is subject to the
In quasi-contracts, the person who receives the thing
disposal of the vendor. If the transaction fails, the
also acquires juridical possession of the thing received.
liability arising therefrom is of a civil and not of a
In contracts of bailment, such as, contract of deposit, criminal nature.
contract of lease of personal property, commodatum,
There is no estafa when the money or other personal
etc., the depositary or the lessee, or the borrower
property received by the accused is not to be used for a
acquires also juridical possession of the thing deposited
particular purpose or to be returned—US vs. Villareal
with him, or leased to him, or loaned to him.
Held: A person receiving money from another and
The obligation to return or deliver the thing must be
failing to return it does not commit the crime of estafa
contractual without transferring to the accused the
unless it is clearly demonstrated that he received it "for
ownership of the thing received—
safekeeping, or on commission, or for administration; or
But Art. 315, No. 1 (b) does not apply when the contract under any other circumstances giving rise to the
between the accused and the complainant has the obligation to make delivery of or to return the same."
effect of transferring to the accused the ownership of
Amounts paid by the students to the school to answer
the thing received.
for the value of materials broken are not mere deposits.
When ownership of the thing is transferred to the —People vs. Montemayor et al.
person who has received it, his failure to return it will
The amounts paid by the students to the college, in
give rise to civil liability only— People vs. Ma Su
order to answer for the value of materials broken, were
Thus, when the contract under which the thing is no more "deposits" in law than bank "deposits" are
received is one of purchase and sale, even if the price is so….The Mindanao Agricultural College merely bound
not paid, ownership is transferred to the buyer upon the itself to reimburse or repay to each student, the amount
delivery of the thing to him. If the buyer sold the thing "deposited" by him or by her, after deducting or setting
and did not pay the price to the original owner, there is off the value of broken equipment. The relation thus
only civil liability. established between college and student was one of
debtor and creditor, not one of depositor and
The advance or part payment of the price of the thing
depository; the transaction was a loan, not a deposit. As
sold, but not yet delivered, becomes the property of the
a loan, the college acquired the ownership of the money
seller. If the thing sold is not delivered and the advance
paid by the students, subject only to the obligation of
or part payment of the price is not returned, there is
reimbursing equivalent amounts, unless a deduction
only civil liability.
should happen to be due.
Provisions of the Civil Code—
There is no estafa if the thing is received under a
Art. 1477. The ownership of the thing sold shall be contract of sale on credit—People vs. Santos
transferred to the vendee upon the actual or
Where the articles were purchased by the accused on
constructive delivery thereof.
credit, even if subsequently the term "consignment"
was used, the failure of the accused either to pay for the
27
articles or to return them did not make him liable for The word converting ("distraer") connotes the act of
estafa using or disposing of another's property as if it were
one's own. The word misappropriating ("apropiar")
Criminal liability for estafa not affected by novation of
means to own, to take something for one's own benefit.
contract—People vs. Benitez
Meaning of "conversion."—
Held: The fact that the accused herein had, with the
consent of the offended party, assumed the obligation It presupposes that the thing has been devoted to a
of paying the rentals, which he collected, out of his own purpose or use different from that agreed upon.
salary after he had committed the misappropriation,
Estafa by conversion—People vs. Campos
does not obliterate the criminal liability already
incurred. Since pledge involves an act of ownership, the
depositary who pledges a thing received by him for
In order that novation of contract may relieve the
deposit uses it for a distinct purpose and accordingly
accused of criminal liability, the novation must take
commits estafa by conversion.
place before the criminal liability is incurred; criminal
liability for estafa already committed is not affected by The better rule is that selling the thing on credit is estafa
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. In the case of U.S. vs. Morales, et al., 15 Phil. 236, it was
551) held that the act of the agent in selling the jewelry on
credit and taking promissory notes from the purchaser
Novation of contract from one of agency to one of sale, for the purchase price, is not estafa, there being no
or to one of loan, relieves defendant from incipient evidence of conversion of the property to the benefit of
criminal liability under the first contract—People vs. the accused or of some other person.
Doniog
But in the case of U.S. vs. Panes, 37 Phil. 116, where the
The record fully justifies the conclusion that it was the accused also sold to another on credit, the jewelry he
intention of the parties to consider the obligation a civil had received from the complainant to be sold on
one. Before the filing of the complaint, the accused commission and for cash, it was held that the accused
signed a "compromise" whereby he acknowledged the was guilty of estafa. The decision was based on the rule
obligation and promised to pay. The complainant sought that "to appropriate to one's own use includes not only
the execution of the promissory notes, making the conversion to one's personal advantage but every
appellant acknowledge the existence of debt, which attempt to dispose of the property of another without
directly and substantially amended the invoice from the right."
contract of supposed agency to one of sale.
Estafa by misappropriation—US vs. Sevilla
Acceptance of promissory note or extension of time for
payment does not constitute novation— Camus vs. CA Held: The appellant is guilty of estafa, even if he had no
and People vs. Javier intention to permanently misappropriate the funds to
himself. The law is clear and makes no distinction
2nd element of estafa with abuse of confidence under between permanent and temporary misappropriations.
paragraph (b), subdivision No. 1, Art. 315—
Does momentary use by the agent of funds belonging to
It will be noted that there are three ways of his principal constitute estafa—
committing estafa with abuse of confidence under Art.
315, No. Kb). They are: In the case of U.S. vs. Sevilla, supra, it was held that
fraudulent intent is not necessary, because the breach
1. By misappropriating the thing received. of confidence involved in the misappropriation or
conversion of trust funds takes the place of fraudulent
2. By converting the thing received.
intent and is in itself sufficient.
3. By denying that the thing was received.
The Supreme Court stated in that case that such view is
"By misappropriating" or "by converting."— further strengthened by the fact that of the nine
paragraphs of Article 535 (now Art. 315), the paragraph
Paragraph (b), Subdivision No. 1 of Art. 315, was taken
under discussion is the only one in which the words
by the Code Commission from paragraph 5 of Art. 535 of
"fraud" and "defraud" do not occur.
the Spanish Penal Code of 1870 which used the words
"apropiaren" and "distrajeren" which are translated into But there has been a change in the wording of the
English with the words "misappropriating" and article defining and penalizing the crime of estafa.
"converting," respectively.
Art. 315 begins with the following words: "Any person
who shall defraud another by any of the means
28
mentioned hereinbelow shall be punished by:" and the the act of the accused in retaining and setting off what
paragraph immediately preceding the definition of was due to him, the criminal action for estafa should be
estafa with abuse of confidence states that "the fraud dismissed.
be committed by any of the following means."
Estafa by denying having received the thing—
The crime of estafa under Art. 315, par. 1 (b), is not
In the case of U.S. vs. Yap Tian Jong, 34 Phil. 10, the
committed when there is neither misappropriation nor
accused who denied having received a box of sinamay
conversion—
delivered to him by mistake was convicted of estafa.
US vs. Biebel: The delay in the fulfillment of a trust or in
"To the prejudice of another" — not necessarily of the
the delivery of the sum received on such account only
owner of the property—Dec. Sup. Ct. Spain cited in
involves civil liability.
People vs. Yu Chai Hoi
When is an agent who gave to a sub-agent the thing
Held: It is immaterial whether the loss was suffered by
received from his principal, guilty of misappropriation or
the owner or by a third person. Considering that in view
conversion—People vs. Munsayac
of the literal terms of the provision of Art. 315, par. 1(b),
Where the complainant delivered the ring to the which says "to the prejudice of another," as well as its
accused to be sold for cash on commission basis, and spirit and legal reason, whenever damages are caused
there is no prohibition on the part of the accused to as a consequence of the appropriation or conversion,
deliver it to any agent for the same purpose of selling the act constitutes the crime of estafa, even though the
same on commission basis, and thereafter, the accused person who suffered the damage is a third party and not
delivered the ring to her sub-agent upon a receipt, and the one to whom the misappropriated or converted
there is no evidence of connivance, collusion or goods belong or to whom they are to be returned, for
conspiracy between the accused and sub-agent to this is an incidental element which in no way affects the
defraud complainant, the accused cannot be held guilty juridical nature of the crime
of conversion of the ring
Partnership — liability of partners for estafa.
Withholding application by agent of money received—
Partners are not liable for estafa of money or property
People vs. Berbari
received for the partnership when the business
For this reason, a conviction for estafa under this commenced and profits accrued—US vs. Clarin
paragraph of Art. 315 cannot be sustained against a
Held: When two or more persons bind themselves to
person, be he agent, partner, or whatnot, who has in
contribute money, property, or industry to a common
good faith retained the property committed to his care
fund, with the intention of dividing the profits among
for the purpose of necessary self-protection against his
themselves, a contract is formed which is called
principal in civil controversies arising between the two
partnership.
with reference to the same or related matter.
No. 5 of Article 535 of the Penal Code (now Art. 315,
Right of agent to deduct commission from amounts
par. l[b]), according to which those are guilty of estafa
collected—
"who, to the prejudice of another, shall appropriate or
Can an agent with a right to a commission who collected misapply any money, goods, or any kind of personal
money for the principal be held liable for estafa, if he property which they may have received as a deposit, on
failed to turn over that part of his collection to the commission, for administration or in any other character
latter? It depends. producing the obligations to deliver or return the same,"
(as, for example, in commodatum, precarium, and other
(1) If the agent is authorized to retain his commission
unilateral contracts which require the return of the
out of the amounts he collected, there is no estafa.
same thing received) does not include money received
(People vs. Aquino, 52 Phil. 37)
for a partnership; otherwise the result would be that, if
(2) Otherwise, he is guilty of estafa, because the right to the partnership, instead of obtaining profits suffered
a commission does not make the agent a joint owner, losses, as it could not be held liable civilly for the share
with a right to the money collected. (People vs. of the capitalist partner who reserved the ownership of
Leacnon, 66 Phil. 737) the money brought in by him, it would have to answer
the charge of estafa, for which it would be sufficient to
People vs. Jumawan--Held: Under the circumstances, argue that the partnership had received the money
the accused, who was unjustly exploited, is not under obligation to return it
criminally liable for his act of retaining the amount
which was even less than what was actually and Failure of partner to account for partnership funds may
honestly due and owing to him by his principal. The give rise to a civil obligation only, not estafa— People vs.
complainant not having been damaged or prejudiced by Alegre

29
Thus, where a partner sold the merchandise belonging to the owner could only give rise to a civil action and
to the partnership and failed to account for the does not constitute the crime of estafa
purchase price, he is civilly liable to the partnership for
Demand is not required by law; but it is necessary,
the price. It is a debt due from a partner as part of
because failure to account, upon demand, is
partnership funds.
circumstantial evidence of misappropriation— People
Exception: People vs. Clemente vs. Sullano et al.

While it is true that ordinarily a partner who Presumption of misappropriation arises only when the
misappropriates the selling price of partnership explanation of the accused is absolutely devoid of merit
property does not commit estafa, as it is a debt due — People vs. Lopez
from a partner as part of partnership funds, yet the
Even if the offender cannot be located, or there was
misappropriation by a partner of the share of another
agreement upon specific time for delivery or return of
partner in the profits would constitute estafa through
the thing received, demand cannot be dispensed with—
misappropriation.
People vs. Pendon
A co-owner is not liable for estafa, but he is liable if,
The ruling is different in these cases—
after the termination of the co-ownership, he
misappropriates the thing which has become the People vs. Villegas: But in another case, it was held that
exclusive property of the other— Mercado vs. People if the offender is in hiding, prior demand is not
necessary to institute the criminal action. The
Held: Appellant is guilty of estafa. It will be observed
disappearing act of the offender is a clear indication of a
that there were two pivotal points against appellant in
premeditated intention to abscond with the thing he
the matter of the alleged swindling: (a) she caused the
received from the offended party. The proven facts
notary to write the document of sale in her own name,
showed that the offender could not have complied with
instead of that of Miguela Angel; and (b) she
the demand, even if it had been made
subsequently sold the property to Simsuangco and
retained the price. Now, bearing in mind that she had People vs. Librea: And it was also held in a case that
advanced a portion of the purchase money delivered to where the receipt signed by the accused stipulated that
Martina Nebre, the contention could be made that, he should turn over the proceeds of the sale or make an
because she had some interest in the property, she accounting thereof on a specified date, it in itself was a
committed no crime in disposing of it, but only a civil demand which would dispense with the necessity of
wrong, if any. We find, however, upon examination of another one after that date.
the record that Miguela Angel repaid her with interest,
the amount so advanced, and that was prior to the There is no estafa through negligence— People vs.
Simsuangco sale. Nepomuceno

But when the money or property had been received by it clearly imports that in case of estafa, the profit or gain
a partner for specific purpose and he later must be obtained by the accused personally, through his
misappropriated it, such partner is guilty of estafa— own acts, and his mere negligence in permitting another
People vs. De La Cruz to take advantage of, or benefit from, the entrusted
chattel cannot constitute estafa under Article 315(l-b).
Held: C is guilty of estafa, consisting in the fraudulent
appropriation of the money which had been delivered "Even though such obligation be totally or partially
to him with specific instructions to apply it to the uses guaranteed by a bond."— People vs. Leachon
of the partnership. This case is different from the case of Thus, a mortgage executed by the agent or salesman or
U.S. vs. Clarin, 17 Phil. 84, because in that case, there a surety bond filed by the agent to answer for damages,
was a mere failure on the part of the industrial partner advances, etc., does not relieve him from criminal
to liquidate the affairs of the partnership and to pay liability, for this undertaking refers only to his civil
over part of the profit to the capitalist partner. liability.
4th element of estafa with abuse of confidence— The gravity of the crime of estafa is determined on the
This is the only kind of estafa under Art. 315, where basis of the amount not returned before the institution
demand may be required. of the criminal action— People vs. Pagayon

The mere failure to return the thing received for In the crime of estafa, the gravity of the offense is not
safekeeping or on commission, or for administration, or determined by the value which accused has delivered or
under any other obligation involving the duty to make has returned to the offended party after the criminal
delivery or return the same or deliver the value thereof 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.
30
Estafa with abuse of confidence, distinguished from Selling the thing received to be pledged for the owner is
theft— theft, when the intent to appropriate existed at the time
it was received— People vs. Trinidad
n theft, the offender takes the thing; in estafa, the
offender receives the thing from the offended party.

In estafa, the offender receives the thing — he does not

take the thing without the consent of the owner.—
People vs. Darpeng
Estafa with abuse of confidence and malversation,
Held: Estafa. The two large cattle were taken by B with
distinguished—
the consent of A. B did not take the proceeds of the
sale; he received them from the purchasers. But B 1. In both crimes, the offenders are entrusted with
received the proceeds of the sale to be held by him in funds or property.
trust for A
2. Both are continuing offenses.
Not theft, because there is no taking or abstracting of
the thing from anyone— US vs. Reyes 3. But while in estafa, the funds or property are always
private; in malversation, they are usually public funds or
The test to distinguish estafa from theft— property.
In theft, upon the delivery of the thing to the offender, 4. In estafa, the offender is a private individual or even a
the owner expects an immediate return of the thing to public officer who is not accountable for public funds or
him. (Albert) property; in malversation, the offender who is usually a
public officer is accountable for public funds or property.
When the owner does not expect the immediate return
of the thing he delivered to the accused, the 5. In estafa with abuse of confidence, the crime is
misappropriation of the same is estafa.— committed by misappropriating, converting or denying
having received money, goods or other personal
Exception:
property; in malversation, the crime is committed by
When the servant received money or other personal appropriating, taking or misappropriating or consenting,
property from the master, with the obligation to deliver or, through abandonment or negligence, permitting any
it to a third person and, instead of doing so, other person to take the public funds or property.
misappropriated it to the prejudice of the owner, the
When in the prosecution for malversation the public
crime committed is qualified theft.
officer accountable for public funds is acquitted, the
Servant, domestic, or employee who misappropriates private individual allegedly in conspiracy with him may
the thing he received from his master or employer is not be held liable for estafa—Peoiple vs. Salazar et al. citing
guilty of estafa— People vs. Solis

Constructive possession is the relation between the This, because estafa thru falsification of public
owner of the thing and the thing itself when the owner documents is necessarily included in a charge of
is not in the actual physical possession, but when it is malversation of public funds thru falsification of public
still under his control and management, and subject to documents.
his disposition.
Misappropriation of firearms received by a policeman is
Possession of agent distinguished from possession of estafa, if it is not involved in the commission of a crime;
teller of bank— Guzman vs. CA citing Art. 1915 of the it is malversation, if it is involved in the commission of a
Civil Code crime.— People vs. Bautista

In the former case, payment by third persons to the Where the accused policeman asked for the pistol of the
teller is payment to the bank itself; the teller is a mere offended party, on the pretext that it should be
custodian or keeper of the funds received, and has no delivered to the Detective Bureau for examination, and
independent right or title to retain or possess the same that it would be returned in three days, and once in
as against the bank. An agent, on the other hand, can possession of the pistol, he sold it, it was held that the
even assert, as against his own principal, an policeman was guilty of estafa.
independent, autonomous right to retain the money or
But a policeman, having custody of a firearm seized
goods received in consequence of the agency; as when
from a person without permit to possess it, is guilty of
the principal fails to reimburse him for advances he has
malversation for the disappearance of said firearm.
made, and indemnify him for damages suffered without
his fault. Estafa by taking undue advantage of the signature of the
offended party in blank— Art. 315 No. 1[c]
31
By taking undue advantage of the signature of the Art. 315 No. 2[a]: By using fictitious name, or falsely
offended party in blank, and by writing any document pretending to possess power, influence, qualifications,
above such signature in blank, to the prejudice of the property, credit, agency, business or imaginary
offended party or any third person. transactions, or by means of other similar deceits.

There are three ways of committing estafa under the

provisions—

(1) by using fictitious name;

(2) by falsely pretending to possess: (a) power, (b)

Elements of estafa by taking undue advantage of the
influence, (c) qualifications, (d) property, (e) credit, (f)
signature in blank—
agency, (g) business or imaginary transactions; or
1. That the paper with the signature of the offended
(3) by means of other similar deceits.
party be in blank.
Indispensable requirement for the application of Art.
2. That the offended party should have delivered it to
315, No. 2(a)—People vs. Gines et al.
the offender.
In the prosecution for estafa under Article 315,
3. That above the signature of the offended party a
paragraph 2(a) of the Revised Penal Code, it is
document is written by the offender without authority
indispensable that the element of deceit, consisting in
to do so.
the false statement or fraudulent representation of the
4. That the document so written creates a liability of, accused, be made prior to, or, at least simultaneously
or causes damage to, the offended party or any third with, the delivery of the thing by the complainant, it
person. being essential that such false statement or fraudulent
representation constitutes the very cause or the only
Estafa by means of deceit. (Art. 315, subdivisions Nos. 2 motive which induces the complainant to part with the
and 3)— thing. If there be no such prior or simultaneous false
The second and third forms of estafa defined in statement or fraudulent representation, any subsequent
subdivisions Nos. 2 and 3 of Art. 315 are committed by act of the accused, however fraudulent and suspicious it
means of deceit. It is committed either by means of may appear, cannot serve as a basis for prosecution for
false pretense or fraudulent act, or through fraudulent that class of estafa.
means. Estafa by using fictitious name—
Elements of estafa by means of deceit— There is use of fictitious name when a person uses a
a. That there must be a false pretense, fraudulent act name other than his real name.
or fraudulent means. A creditor who deceived his debtor is liable for estafa—
b. That such false pretense, fraudulent act or People vs. Rubaton
fraudulent means must be made or executed prior to If it was wrong for the complainant to refuse to pay his
or simultaneously with the commission of the fraud obligation to appellant, it was not right either for
c. That the offended party must have relied on the appellant to employ unlawful means to enable him to
false pretense, fraudulent act, or fraudulent means, collect. A wrong cannot justify another wrong.
that is, he was induced to part with his money or Appellant's contention that there is absence of criminal
property because of the false pretense, fraudulent act, intent or fraud is untenable. The plan, as conceived by
or fraudulent means. him, if true, was precisely born of a desire to commit
fraud. The plan itself carried a criminal intent
d. That as a result thereof, the offended party suffered
damage. Estafa "by means of other similar deceits.”— People vs.
Papa
There is no deceit if the complainant was aware of the
fictitious nature of the pretense— People vs. Deceit, not covered by any of those specifically
Concepcion mentioned in subdivision 2, paragraph (a), but similar
to any of them, may give rise to estafa under that
BY MEANS OF ANY OF THE FOLLOWING FALSE phrase "by means of other similar deceits."
PRETENSES OR FRAUDULENT ACTS EXECUTED PRIOR TO
OR SIMULTANEOUSLY WITH THE COMMISSION OF THE The pretense must be false—
FRAUD: In the absence of proof that the representation of the
accused was actually false, criminal intent to deceive
cannot be inferred.
32
Abeto vs. People: Not a scintilla of evidence was Office for the purpose of cashing it, but the forgery was
adduced to prove that appellant's pretense of influence noticed there and the accused failed to get the prize.
was not true and therefore fraudulent. In the absence of
Fraud in estafa by means of deceit must be proved with
proof that his representation was actually false, criminal
clear and positive evidence—People vs. Salapore
intent to deceive cannot be inferred… Non-performance
on his part and his failure to return the money give rise
only to civil liability.
By altering the quality, fineness, or weight of anything
The offended party must be deprived of his property by pertaining to his art or business. (Art. 315, No. 2[b])
any of the false pretenses mentioned in paragraph 2(a)
— Estafa by altering the quality, fineness or weight of
anything pertaining to his art or business—
This being a form of estafa by means of deceit, the false
pretense should be the efficient cause of the The estafa by altering the quality, fineness, or weight of
defraudation and, hence, it should be made either prior anything pertaining to his art or business may be
to, or simultaneously with, the act of fraud illustrated in the case of a jeweler who, for instance,
defrauded a person who had delivered to him a
Estafa by means of deceit and theft, distinguished— diamond and piece of gold to be made into ring by
changing the stone with one of lower quality
What materially distinguishes estafa from theft is not
the presence or absence of fraud or deceit but whether Manipulation of scale is punished under the Revised
only material possession or both the juridical and Administrative Code—
physical possession of the thing was transferred
Violation of the Weights and Measures Act—
here commission salesman took back the machines
from prospective customers and misappropriated them, 1. Selling a supposed ganta of rice which did not fill the
the crime committed is theft, not estafa—People vs. measure at the edges by nearly a half of an inch, is not
Maglaya estafa, because it is specially penalized under the
Weights and Measures Act. However slight the
The physical possession secured by him did not vest in shortage may have been, if it was the result of fraud,
him the juridical possession necessary for the crime of the accused is guilty under the said Act. (U.S. vs. Cheng
estafa. From a legal viewpoint, he had taken and carried Chua, 31 Phil. 302)
away the machines without the knowledge and consent
of the owner thereof. 2. Using a one-deciliter measure that was false or
which appeared to have been altered after it had been
Estafa through falsification— officially scaled, thereby defrauding the purchasing
public, is a violation of the Weights and Measures Act.
People vs. Pineda: Where a person succeeds in
(U.S. vs. Vicente, 35 Phil. 623)
withdrawing money from a deposit account of another
by stealing the latter's passbook for such deposit and By pretending to have bribed any Government
forging the depositor's signature on the withdrawal employee, without prejudice to the action for calumny
receipt of the Postal Savings Bank issued by the bank, he which the offended party may deem proper to bring
commits the crime of estafa through falsification of an against the offender. In this case the offender shall be
official document. punished by the maximum period of the penalty. (Art.
315, No. 2[c])
Note: In a decision of the Supreme Court of Spain of
Nov. 22, 1883, similar facts were held to be constituting Estafa by pretending to have given bribe—
the crime of theft, not estafa through falsification,
"because the false representation made by the offender This is committed by any person who would ask money
was nothing but a continuation and natural from another for the alleged purpose of bribing a
development and consequence of the crime of theft government employee, when in truth and in fact the
already committed." offender intended to convert the money to his own
personal use and benefit
Estafa through false pretense made in writing is only a
simple crime of estafa, not a complex crime of estafa "Without prejudice to the action for calumny which the
through falsification.—People vs. Samonte Vda. De Guia offended party may x x x bring against the offender."—

Attempted estafa through forgery— People vs. Balmores Note that in addition to the crime of estafa, the offender
may still be liable for the crime of defamation which the
After forging 1/8 unit of the Philippine Charity government employee allegedly bribed may deem
Sweepstakes ticket, by altering a figure thereon and proper to bring against the offender.
making it appear a prize-winning number, the accused
presented it at the Philippine Charity Sweepstakes Ticket Estafa by means of fraudulent acts—
33
The acts must be fraudulent— The check must be postdated or issued in payment of an
obligation contracted at the time of the issuance and
Note that while in false pretenses the deceit consists in
delivery of the check—
the use of deceitful words, in fraudulent acts the deceit
consists principally in deceitful acts. [founded on, deceit, The meaning given to the phrase, "in payment of an
trick or cheat] obligation", is that the check should not be postdated or
issued in payment of pre-existing obligation.
This being also estafa by means of deceit, the fraudulent
acts must be performed prior to or simultaneously with People vs. Lilius Thus, when a check was issued in
the commission of the fraud. payment of a debt contracted prior to such issuance,
there is no estafa, even if there is no fund in the bank to
Like in other forms of deceit, the offender must be able
cover the amount of the check.
to obtain something from the offended party because of
the fraudulent acts, that is, without which, the offended The rule that the issuance of a bouncing check in
party would not have parted with it. payment of a pre-existing obligation does not constitute
estafa has not at all been altered by the amendatory act.
(R.A. No. 4885)— People vs. Sabiro Sr.
By postdating a check, or issuing a check in payment of
Under Article 315(2)(d) of the Revised Penal Code, as
an obligation when the offender had no funds in the
amended by Republic Act No. 4885, the false pretense
bank, or his funds deposited therein were not sufficient
or fraudulent act must be executed prior to or
to cover the amount of the check. The failure of the
simultaneously with the commission of the fraud to
drawer of the check to deposit the amount necessary to
constitute estafa. Republic Act No. 4885 did not change
cover his check within three (3) days from receipt of
the rule established in Article 315(2)(d) as interpreted in
notice from the bank and I or the payee or holder that
People vs. Lilius, 59 Phil. 339, and People vs. Fortuno, 73
said check has been dishonored for lack or insufficiency
Phil. 407
of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act. (Art. 315, When check is issued in substitution of a promissory
No. 2[d], as amended by Rep. Act No. 4885, approved note it is in payment of pre-existing obligation—People
June 17, 1967) vs. Canalas

Estafa by postdating a check or issuing a check in The accused must be able to obtain something from the
payment of an obligation— offended party by means of the check he issues and
delivers—
Elements:
Exception: When the check issued is not "in payment of
1. That the offender postdated a check, or issued a
an obligation."—
check in payment of an obligation;
When postdated checks are issued and intended by the
2. That such postdating or issuing a check was done
parties only as promissory notes, there is no estafa even
when the offender had no funds in the bank, or his
if there are no sufficient funds in the bank to cover the
funds deposited therein were not sufficient to cover
same— People vs. Roque Obieta
the amount of the check.
But these checks were not intended for presentation
The check issued must be genuine, and not falsified—
and encashment with the bank against which they were
People vs. Bisquiera
drawn; that they were delivered as mere security for the
The act of signing a check with a fictitious name and payment by installments of the purchase price of A's car,
falsely pretending that said check could be cashed at the which was the procedure followed by B to space
bank, the accused knowing that it could not be cashed, payments of his numerous obligations; and that the
and on the strength of such false pretense the accused agreement was that it would be redeemed with cash in
obtained from the offended party a certain amount in A's establishment as they fall due. The said checks were
exchange for the worthless check, constitutes estafa by not intended by the parties to be such but only as
means of false pretense under paragraph 2(a), and not promissory notes, and that the complainant knew the
estafa by postdating or issuing a check under paragraph risk he was running. Hence, B did not commit the crime
2(d) of Art. 315. of estafa.

If the check is falsified and the same is cashed with the When the check is issued by a guarantor, there is no
bank, or exchanged for cash, the crime committed is estafa— People vs. Suarez
estafa through falsification of a commercial document.
he check was not issued in payment of an obligation

34
"When the offender had no funds in the bank, or his used the same in the purchase of goods, is guilty of
funds deposited therein were not sufficient to cover the estafa
amount of the check."—
The payee or person receiving the check must be
The mere fact that the drawer had insufficient or no defrauded—
funds in the bank to cover the check at the time he
The payee or person who received the check must be
postdated or issued a check, is sufficient to make him
damaged or prejudiced.
liable for estafa.
Presidential Decree No. 818, which took effect on
Republic Act No. 4885 eliminated the phrase "the
October 22, 1975, amends Article 315 of the Revised
offender knowing that at the time he had no funds in
Penal Code by increasing the penalties for estafa
the bank."—
committed by means of bouncing checks, as follows—
In view of the elimination of that phrase, it is not now a Sec. 1
defense that the drawer, through oversight, did not
1st: Reclusion temporal [value between 12,000-
know that he had insufficient or no funds in the bank
22,000php]
when he postdated or issued the check. He should verify
first the amount of his deposit before postdating or Additional 1 year for every 10,000php [exceeding
issuing a check. 22,000php]
People vs. Bool et al.: Under subparagraph (d), Reclusion perpetua [with accessory penalties]
paragraph 2, Article 315 of the Revised Penal Code, as
amended by Republic Act No. 4885, it is not necessary 2nd: Prision mayor in its maximum period [value
that the drawer should know at the time that he issued between 6,000php-12,000php]
the check that the funds deposited in the bank were not 3rd: Prision mayor in its medium period [value between
sufficient to cover the amount of the check. 200-6000php]
Prima facie evidence of deceit— RA 4885 4th: Prision mayor in its minimum period [value does not
The failure of the drawer of the check to deposit the exceed 200php]
amount necessary to cover his check within three (3) Application of P.D. No . 818—
days from receipt of notice from the bank and/or the
payee or holder that said check has been dishonored for Presidential Decree No. 818 applies only to estafa under
lack or insufficiency of funds shall be prima facie paragraph 2 (d) of Article 315, and does not apply to
evidence of deceit constituting false pretense or other forms of estafa under the other paragraphs of the
fraudulent act. same article

The explanatory note of Senate Bill No. 413, which Batasang Pambansa No. 22
became Republic Act No. 4885 states: "It is true that a BP Big. 22 may be violated in two ways:
check may be dishonored without any fraudulent
pretense or fraudulent act of the drawer. Hence, the 1. By making or drawing and issuing any check to apply
drawer is given three days to make good the said check on account or for value, knowing at the time of issue
by depositing the necessary funds to cover the amount that he does not have sufficient funds in or credit with
thereof. Otherwise, a prima facie presumption will arise the drawee bank for the payment of such check in full
as to existence of fraud, which is an element of the upon its presentment, which check is subsequently
crime of estafa." dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the
Good faith is a defense in a charge of estafa by same reason had not the drawer, without any valid
postdating or issuing a check— People vs. Villapando reason, ordered the bank to stop payment.
Stopping payment of check— US vs. Poe 2. Having sufficient funds in or credit with the drawee
if checks were issued by defendant and he received bank when he makes or draws and issues a check, by
money for them and stopped payment and did not failing to keep sufficient funds or to maintain a credit
return the money and if at the time the check was to cover the full amount of the check if presented
issued, he had the intention of stopping payment, he is within a period of ninety (90) days from the date
guilty of estafa. appearing thereon, for which reason it is dishonored
by the drawee bank.
The person who uses the check may also be liable—
People vs. Isleta et al Elements of the offense defined in the first paragraph
of Section 1 :
One who got hold of a check issued by another, knowing
that the drawer had no sufficient funds in the bank, and 1. That a person makes or draws and issues any check.
35
2. That the check is made or drawn and issued to apply "Knowing at the time of issue that he does not have
on account or for value sufficient funds in or credit with the drawee bank."—

3. That the person who makes or draws and issues the If he had sufficient funds in or credit with the drawee
check knows at the time of issue that he does not have bank at the time he issued the check, but later he
sufficient funds in or credit with the drawee bank for withdrew all his funds from or lost credit with the
the payment of such check in full upon its drawee bank, is he liable if the check is subsequently
presentment. dishonored? Under the first paragraph of Section 1, he
is not liable, because at the time he issued the check, he
4. That the check is subsequently dishonored by the
knew that he had sufficient funds in or credit with the
drawee bank for insufficiency of funds or credit, or
drawee bank. Note the words "knowing at the time of
would have been dishonored for the same reason had
issue." But he may be liable under the second paragraph
not the drawer, without any valid reason, ordered the
of Section 1, if he fails to keep sufficient funds or to
bank to stop payment.
maintain a credit to cover the full amount of the check.
Elements of the offense defined in the second
It is no defense then that the drawer of the check
paragraph of Section 1:
ordered the bank to stop payment, if he had no
1. That a person has sufficient funds in or credit with sufficient funds or credit and the check would have
the drawee bank when he makes or draws and issues a been dishonored had he not made the order. The law
check. regards the order of stopping payment as a mere
pretext of the drawer to avoid criminal liability.
2. That he fails to keep sufficient funds or to maintain a
credit to cover the full amount of the check if BP Big. 22 specifies the person or persons liable when
presented within a period of 90 days from the date the check is drawn by a corporation, company or entity.
appearing thereon. The person or persons who actually signed the check in
behalf of such drawer shall be liable under the Act.
3. That the check is dishonored by the drawee bank.
"Policy of the Supreme Court on the matter of the
imposition of penalties for violation of B.P. Big. 22."—
Gravamen of BP 22 is the issuance of a check— Lack of written notice of dishonor is fatal.—Domagsang
People vs. Laggui: Gravamen of BP 22 is the issuance of vs. CA
a check, not the nonpayment of an obligation. While, indeed, Section 2 of B.P. 22 does not state that
People vs. Manzanilla: The law has made the mere act the notice of dishonor be in writing, taken in
of issuing a bum check a malum prohibitum conjunction, however, with Section 3 of the law, i.e.,
that where there are no sufficient funds in or credit with
The check may be made or drawn and issued to apply such drawee bank, such fact shall always be explicitly
on account or for value— Que vs. People stated in the notice of dishonor or refusal. A mere oral
BP 22 does not make a distinction as to whether the bad notice or demand to pay would appear to be insufficient
check is issued in payment of an obligation or to merely for conviction under the law.
guarantee an obligation. No disputable presumption of knowledge of
Assemblyman Estelito Mendoza, who authored BP Big. insufficiency of funds when there is no receipt of notice
22, expressed the view that "if he issues a check in of dishonor— Caras vs. CA
payment (of) or contemporaneously with incurring an Absent such presumption, the burden shifts to the
obligation, then he will be liable not only for estafa but prosecution to prove that the drawer had knowledge of
also for violation of this Act." His reason is that "(t)he the insufficiency of funds when the drawer issued the
Supreme Court in several cases has decided that where checks; otherwise, the drawer cannot be held liable
there is a variance between the elements of an offense under the law.
in one law and another law, there will be no double
jeopardy." He cited the element of damage in estafa, Notice of dishonor to corporation is not notice to officer
which is not required in BP Big. 22. who issued the check— Lao vs. CA

In view of the purpose of the enactment of BP Big. 22, Responsibility under B.P. Big. 22 is personal to the
the crime denned and penalized there is against public accused; hence, personal knowledge of the notice of
interest, while the crime of estafa is against property. dishonor is necessary. Consequently, constructive notice
Deceit is an element of estafa. This is not required under to the corporation is not enough to satisfy due process.
BP Big. 22. Policy of the Supreme Court on the matter of the
imposition of penalties for violation of B.P. Big. 22—

36
"Section 1 of B.P. Big. 22 (An Act Penalizing the Making Sec. 2: Evidence of knowledge of insufficient funds—
or Drawing and Issuance of a Check Without Sufficient
Presumption of drawer's knowledge of insufficient funds
Funds for Credit and for Other Purposes) imposes the
—Sec. 2 BP 22
penalty of imprisonment of not less than thirty (30) days
but not more than one (1) year OR a fine of not less Section 2 establishes prima facie evidence of knowledge
than but not more than double the amount of the of such insufficiency of funds or credit. The making,
check, which fine shall in no case exceed P200,000, OR drawing and issuance of a check, payment of which is
both such fine and imprisonment at the discretion of refused by the drawee because of insufficient funds in
the court. or credit with such bank, is prima facie evidence of
knowledge of insufficiency of funds or credit, when the
"In its decision in Eduardo Vaca vs. Court of Appeals
check is presented within 90 days from the date of the
(G.R. No. 131714, 16 November 1998, 298 SCRA 656,
check.
664), the Supreme Court (Second Division) per Mr.
Justice Vicente V. Mendoza, modified the sentence Exceptions—
imposed for violation of B.P. Big. 22 by deleting the
penalty of imprisonment and imposing only the penalty a. When the check is presented after 90 days from the
of fine in an amount double the amount of the check. In date of the check.
justification thereof, the Court said: b. When the maker or drawer pays the holder thereof
"Petitioners are first time offenders. They are Filipino the amount due thereon, or makes arrangements for
entrepreneurs who presumably contribute to the payment in full by the drawee of such check within five
national economy. Apparently, they brought this appeal, (5) banking days after receiving notice that such check
believing in all good faith, although mistakenly, that they has not been paid by the drawee.
had not committed a violation of B.P. Big. 22. Otherwise, Prima facie evidence does not arise where notice of
they could simply have accepted the judgment of the non-payment is not sent to the maker or drawer of the
trial court and applied for probation to evade a prison check— Danao vs. CA et al
term. It would best serve the ends of criminal justice if
in fixing the penalty within the range of discretion Sec. 3 BP No. 22: Duty of drawee; rules of evidence
allowed by SI, par. 1, the same 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
Section 3 requires the drawee, who refuses to pay the
the check involved is an appropriate penalty to impose
check to the holder thereof, to cause to be written,
on each of the petitioners."
printed or stamped in plain language thereon, or
Supreme Court Administrative Circular No. 12-2000: "All attached thereto, the reason for his dishonor or refusal
courts and judges concerned should henceforth take to pay the same. Where there are no sufficient funds in
note of the foregoing policy of the Supreme Court on or credit with it, the drawee bank shall explicitly state
the matter of the imposition of penalties for violation of that fact in the notice of dishonor or refusal.
B.P. Big. 22."
If the drawee bank received an order to stop payment
Rule of preference in imposing penalties in BP Big. 22— from the drawer, the former shall state in the notice
that there were no sufficient funds in or credit with it for
Administrative Circular No. 13-2001 further clarified
the payment in full of the check, if such be the fact.
that "Administrative Circular No. 12-2000 establishes a
rule of preference in the application of the penal In all prosecutions under BP Big. 22, the introduction in
provision of B.P. Big. 22 such that where the evidence of any unpaid and dishonored check with the
circumstances of the case, for instance, clearly indicate drawee's refusal to pay stamped or written thereon, or
good faith or a clear mistake of fact without taint of attached thereto, shall be prima facie evidence of —
negligence, the imposition of fine alone should be
(1) the making or issuance of the check;
considered as the more appropriate penalty. Needless
to say, the determination of whether the circumstances (2) the due presentment to the drawee for payment and
warrant that imposition of fine alone rests solely upon the dishonor thereof; and
the judge. Should the judge decide that imprisonment is
(3) the fact that the same was properly dishonored for
the more appropriate penalty, Administrative Circular
the reason written, stamped or attached by the drawee
No. 12-2000 ought not to be deemed a hindrance."
on such dishonored check.
37
The prosecution has to present in evidence only the Caloocan City, they were not completely made or drawn
unpaid and dishonored check with the drawee's refusal there, but in Malolos, Bulacan, where they were uttered
to pay stamped or written thereon, or attached thereto. and delivered.
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 By obtaining any food, refreshment or accommodation
and the dishonor thereof; and the fact that the same at a hotel, inn, restaurant, boarding house, lodging
was properly dishonored for the reason written, house, or apartment house and the like without paying
stamped or attached by the drawee on the dishonored therefor, with intent to defraud the proprietor or
check. manager thereof, or by obtaining credit at a hotel, inn,
restaurant, boarding house, lodging house, or
Sec. 4 BP No. 22: Credit Construed
apartment house by the use of any false pretense, or by
The word credit as used herein shall be construed to abandoning or surreptitiously removing any part of his
mean an arrangement or understanding with the bank baggage from a hotel, inn, restaurant, boarding house,
for the payment of such check lodging house, or apartment house after obtaining
credit, food, refreshment, or accommodation therein
Sec. 5: Liability under the revised penal code
without paying for his food, refreshment, or
Prosecution under this act shall be without prejudice to accommodation. (Art. 315, No. 2[e])
any liability for violation of any provisions of the Revised
Estafa by obtaining food or accommodation at a hotel,
Penal Code
etc.—
Us vs. Capurro et al.: Issuing a check in payment of an
There are three ways of committing estafa under the
obligation, which is subsequently dishonored, may be
provisions:
punished under the Revised Penal Code and under BP
Big. 22. Such act of issuing a check without or with 1. By obtaining food, refreshment or accommodation
insufficient funds in the bank may be punished under at a hotel, inn, restaurant, boarding house, lodging
both laws. There is no double jeopardy if each statute house or apartment house without paying therefor,
requires proof of an additional fact which the other with intent to defraud the proprietor or manager
does not. Hence, an acquittal or conviction under either thereof;
statute does not exempt the defendant from
2. By obtaining credit at any of said establishments by
prosecution or conviction under the other.
the use of any false pretense; or
The mere fact that the drawer had insufficient or no
3. By abandoning or surreptitiously removing any part
funds in the bank to cover the amount of the check at
of his baggage from any of said establishments after
the time he postdated or issued it, is sufficient to make
obtaining credit, food, refreshment or accommodation
him liable for estafa.
therein, without paying therefor.
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.
THROUGH ANY OF THE FOLLOWING FRAUDULENT
May the drawer who was acquitted or convicted under MEANS:
the Revised Penal Code for estafa be prosecuted under
B.P. Big. 22— By inducing another, by means of deceit, to sign any
document. (Art. 315No.3[a])
Yes. While B.P. Big. 22 requires the drawer's knowledge
of lack or insufficiency of funds in the drawee bank at Estafa by inducing another to sign any document.
the time of issuance of the check, the Revised Penal Elements:
Code does not require such knowledge (1) That the offender induced the offended party to
Estafa by issuing bad check is a continuing crime— sign a document.
People vs. Yabut (2) That deceit be employed to make him sign the
In a case, the alleged deceit was said to have taken document.
place in Malolos, Bulacan, while the damage in Caloocan (3) That the offended party personally signed the
City, where the checks were dishonored by the drawee document.
banks. Jurisdiction can, therefore, be entertained by
either the Malolos court or the Caloocan court. While (4) That prejudice be caused.
the subject checks were written, signed, or dated in Deceit must be employed— US vs. Barnes
38
There can be no conviction for estafa under this In the case of U.S. vs. Gomez Ricoy, 1 Phil. 595, it was
paragraph in the absence of proof that the defendant held that where the maker of a promissory note, given
made statements tending to mislead the complainant as to cover losses incurred at monte in a gambling house,
to the character of the document executed by him. obtains possession of his note and conceals or destroys
it, he is prima facie guilty of estafa.
Distinguished from the case of U.S. vs. Capule, 24 Phil.
12— A dissenting Justice stated that such promissory note
has no value, intrinsic or extrinsic; it is void and can not
The distinction seems to be that in the case of U.S. vs.
be ratified; it can not therefore be the subject of estafa.
Berry, the accused induced by means of deceit the
offended party to sign the document; whereas, in the Distinguished from infidelity in the custody of
case of U.S. vs. Capule, there was no inducement, for documents (Art. 226)—
the offended party was willing and ready from the
1. The crime of infidelity in the custody of documents,
beginning to sign the document in the belief that it
as denned in Art. 226, and this kind of estafa are similar
contained statements made by them.
in that the manner of committing the offenses is the
In falsification by attributing to persons who have same.
participated in an act or proceeding statements other
2. But while under Art. 226, the offender is a public
than those in fact made by them, the offended party
officer who is officially entrusted with the document; in
made statements to be embodied in a document, but
this kind of estafa, the offender is a private individual or
the offender, in preparing the document, attributed to
even a public officer who is not officially entrusted with
the offended party, statements different from those
the documents.
made by the latter.
3. In estafa, there is intent to defraud. This element is
By resorting to some fraudulent practice to insure
not required in infidelity in the custody of documents.
success in a gambling game. (Art. 315, No. 3[bJ)
Elements of deceit and abuse of confidence may co-
Estafa by resorting to some fraudulent practice to insure
exist— People vs. Franco
success in gambling
US vs. Rivera: It will be noted that in general, estafa is
The rule in Civil Law that no action can be filed on an
committed either by means of deceit or with abuse of
immoral or illegal contract (Art. 1141, C.C.) has no
confidence.
application in the prosecution for estafa, even if the
offended party consented to the fraudulent scheme. If there is no deceit, no abuse of confidence, there is no
estafa, even if there is damage. There is only civil
liability—
By removing, concealing or destroying, in whole or in
Damage or prejudice capable of pecuniary estimation.
part, any court record, office files, documents or any
—
other papers. (Art. 315, No. 3[c])
This is the second element of any form of estafa.
Estafa by removing, concealing or destroying
documents. The element of damage or prejudice may consist in—
Elements of this kind of estafa: 1. The offended party being deprived of his money or
property, as result of the defraudation;
1. That there be court record, office files, documents or
any other papers. 2. Disturbance in property rights; or
2. That the offender removed, concealed or destroyed 3. Temporary prejudice.
any of them.
Disturbance in property rights—US vs. Goyenecchea
3. That the offender had intent to defraud another.
Thus, the fact that the typewriter which had been
If there is no intent to defraud, the act of destroying rented from the offended party was sold to another
court record will be malicious mischief—Guevara person by the accused, made him liable for estafa, even
if the typewriter was recovered by the owner, because
He is guilty of malicious mischief, because he
the complainant at least suffered disturbance in his
deliberately causes damage to the record of the court
property rights in the said typewriter and in the
with evil motive
possession thereof.
Is the act of destroying a promissory note, given to
Payment made subsequent to the commission of estafa
cover losses in gambling, by the maker thereof estafa—
does not extinguish criminal liability or reduce the
penalty—People vs. Pagayon
39
The basis of the penalty in estafa is the amount or the Elements:
value of the property misappropriated and not delivered
1. That the thing be immovable, such as a parcel of
or returned before the institution of the criminal action
land or a building.
People vs. Gervacio: Acceptance of partial payment by
2. That the offender who is not the owner of said
the offended party or the amount misappropriated by
property should represent that he is the owner
the accused is not one of the means of extinguishing
thereof.
criminal liability under Art. 89
3. That the offender should have executed an act of
The crime of estafa is not obliterated by acceptance of
ownership (selling, leasing, encumbering or
promissory note—Camus vs. CA
mortgaging the real property).
A private person who procures a loan by means of
4. That the act be made to the prejudice of the owner or
deceit through a falsified public document of mortgage,
a third person.
but who effects full settlement of the loan within the
period agreed upon, does not commit the crime of The thing disposed of must be real property—Albert
estafa, there being no disturbance of proprietary rights
and no person defrauded thereby. The crime committed If the property is a chattel, the act is punishable as
is only falsification of a public document— People vs. estafa under Art. 315, that is, by falsely pretending to
Cura et al possess property or by means of other similar deceits.

Article 315 of the Revised Penal Code provides thus: Building as real property—People vs. Buencamino
"Any person who shall defraud another by any of the It is the doctrine in this jurisdiction that true buildings
means mentioned herein below shall be punished ... " (not ones merely superimposed on the soil) are real
There can be no estafa unless there is a person property by incorporation, whether they be erected by
defrauded the owner of the land or by a usufructuary or lessee.
The deed of mortgage is a public document and, as we There must be existing real property— US vs. Cara
stated, all material matters contained therein are false
for which one of the accused is responsible. Where the accused sold non-existent land, he is guilty of
estafa by means of false pretenses under paragraph No.
The accused cannot be convicted of estafa with abuse of 2(a) of Art. 315, not of other form of swindling under
confidence under an information alleging estafa by paragraph No. 1 of Art. 316.
means of deceit— Guzman vs. CA
Deceit consisting in false pretense as to ownership of
the real property must be employed by the offender—
Complex crime of theft and estafa— People vs. Yusay People vs. Adriatico
Held: C is guilty of the complex crime of theft and Article 316, No. 1 of the Revised Penal Code, penalizes
estafa, the former a necessary means to commit the only a person who pretends to be the owner and not
latter. C, with intent to gain, took the pawnshop tickets one who claims to be the owner. Where the accused
without the consent of either A or B. This is theft. By claims to be the owner of a parcel of land, and
redeeming the jewels by means of the pawnshop especially where his ownership is evidenced by a
tickets, he committed estafa using a fictitious name. 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

Even if the deceit is practiced against the second

purchaser and the damage is incurred by the first
Art. 316: Other forms of swindling purchaser, there is violation of paragraph No. 1 of Art.
316—
Penalty: arresto mayor in its minimum and medium
periods and a fine not less than the value of the damage Is intent to cause damage sufficient—
caused and not more than 3 times such value
Since the penalty of fine prescribed by Art. 316 is based
Par . 1 — B y conveying , selling , encumbering, or on the "value of the damage caused," mere intent to
mortgaging any real property, pretending to be the cause damage is not sufficient. There must be actual
owner of the same damage caused by the act of the offender.

Elements: Art. 316, par. 1, and Art. 315, par. 2(a), compared—
People vs. Suratos
40
By this, we do not mean, however, that Article 315, par. payment of the loan, Art. 316, par. 2, is not applicable—
2(a) covers only cases where the property involved is Dissenting—People vs. Rubia Vda. De Torres
personal property. Both personal and real property may
Although such encumbrance be not recorded."—
be the subject of the crime under the law. But although
Art. 316, par. 1 refers only to real property, its violation Notwithstanding this phrase in paragraph No. 2 of Art.
is confined to certain instances not common with those 316, in certain cases, it was held that the encumbrance
of Art. 315, par. 2(a). As we see it, Art. 316, par. 1 covers must be legally constituted
a specific situation where the offender exercises or
executes, as part of the false representation, some act US vs. Regalado y Sta. Ana: The attachment does not
of dominion or ownership over the property to the constitute an encumbrance until it is registered.
damage and prejudice of the real owner of the thing. On US vs. De La Cruz: The mortgage of a parcel of registered
the other hand, this circumstance need not be present land which is not registered, is void.
for a crime to be committed under Art. 315, par. 2(a). In
the case at bar, the evidence does not disclose that the Different ruling: People vs. Gurango et al.
appellant had exercised certain acts of ownership or Usurious loan with equitable mortgage is not an
dominion beyond his mere pointing of the property to encumbrance on the property—
the offended party and his claim that he was the owner
thereof. This is, therefore, a proper case for the The usurious loan contract, including its accessory
application of Art. 315, par. 2(a) 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.
Par. 2—By disposing of real property as free from The thing disposed of must be real property—
encumbrance, although such encumbrance be not
recorded If the thing encumbered is personal property, Art. 319
applies, because Art. 319 punishes him who sells or
Elements: pledges personal property which is already subject to an
1. That the thing disposed of be real property. encumbrance.

2. That the offender knew that the real property was The offender must know that the real property is
encumbered, whether the encumbrance is recorded or encumbered—
not. Thus, if the accused did not know that the property he
3. That there must be express representation by the acquired had been mortgaged and sold the same as free
offender that the real property is free from from encumbrance, the accused is not criminally liable.
encumbrance. Real property may be registered under any system of
4. That the act of disposing of the real property be registration—
made to the damage of another This paragraph applies whether the property is
"Shall dispose of the same."— registered under the Spa lish system of transfer of
property or it is registered under the Land Registration
The act constituting the offense is disposing of the real Act.
property falsely representing that it is free from
encumbrance People vs. Uehara: The Land Registration Act might
make it more difficult to consummate he crime, but it
The term "shall dispose" includes encumbering or does not change the nature of the act.
mortgaging.
The third element requires misrepresentation, fraud, or
Meaning of "encumbrance."— deceit—People vs. Mariano
The term "encumbrance" includes every right or interest he motion of misrepresentation, fraud, or deceit
in the land which exists in favor of third persons. involves acts or spoken or written words by a party to
mislead another into believing something to be true
when it is not in fact. The element of fraud in the crime
The offended party must have been deceived, that is, he of estafa under Art. 316, par. 2, cannot be implied.
would not have granted the loan had he known that the
property was already encumbered— People vs. Galsim When the third clement is not established, there is no
crime—
When the loan had already been granted when
defendant offered the property as security for the There must be damage caused—

41
Is the intention to cause damage sufficient? The basis of But in charging the lawful possessor with its value, will
fine, in addition to imprisonment, is the "value of the not the owner make a false pretense, which is a form of
damage caused." deceit, and, therefore, the crime is estafa

People vs. Luzentales: But it is not necessary that the act The personal property must be in the lawful possession
be made to the prejudice of the owner of the land of another—

"Shall dispose of the same as free from The offender must wrongfully take the personal
encumbrance."— property from its lawful possessor—

The phrase "as free from encumbrance" is omitted in The taking is wrongful when it is without the consent of
paragraph 2 of Art. 316. The Spanish text says "El que the possessor, or when deceit is employed by the owner
dispusiere de un inmueble como libre, sabiendo que of the personal property in inducing the possessor to
estaba gravado, etc." give it to him.

The omitted phrase "as free from encumbrance" is the Does the phrase "shall wrongfully take it" include taking
basis of the ruling that silence as to such encumbrance by violence—US vs. Albao
does not involve a crime.
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
Par. 3—By wrongfully taking by the owner of his
personal property from its lawful possessor "To the prejudice of the latter or any third person."—

Elements:

1. That the offender is the owner of personal property. Par. 4—By executing any fictitious contract to the
prejudice of another
2. That said personal property is in the lawful
possession of another. The crime of estafa by executing a fictitious contract to
the prejudice of another may be illustrated in the case
3. That the offender wrongfully takes it from its lawful
of a person who simulates a conveyance of his property
possessor.
to another, for the purpose of defrauding his creditors.
4. That prejudice is thereby caused to the possessor or (Guevara)
third person

The offender must be the owner of personal property—

Par. 5—By accepting any compensation for services not
Albert
rendered or for labor not performed
Note that the offender must be the owner of the
The crime in this paragraph consists in accepting any
personal property. If he is a third person and his
compensation given the accused who did not render the
purpose in taking it is to return it to the owner, it is
service or perform the labor for which payment was
theft, since the abstraction was made with the intent
made. But this kind of estafa requires fraud as an
that another might profit thereby.
important element.
If the owner took the personal property from its lawful
If there is no fraud, it becomes payment not owing,
possessor without the latter's knowledge and later
known as solutio indebiti under the Civil Code, with civil
charged him with the value of the property, is it theft or
obligation to return the wrong payment.
estafa—US vs. Albao
If the money in payment of a debt was delivered to a
n no case may the owner be held guilty of theft of his
wrong person, Art. 316, par. 5, is not applicable, in case
own property, because one of the elements of theft is
the person who received it later refused or failed to
that the property belongs to another. But if the owner,
return it to the owner of the money, Art. 315,
after taking it without the consent of the possessor,
subdivision 1(b), is applicable.
charged the possessor with the value of said property,
the crime committed is theft.

Note: Although the property belongs to the offender, Par. 6—By selling, mortgaging, or encumbering real
yet by charging the former possessor with its value, the property or properties with which the offender
offender intends to take another's money and at the guaranteed the fulfilment of his obligation as surety
same time exhibits an intent to gain. This is the reason
Elements:
for the ruling in the case of U.S. vs. Albao, supra.

42
 1. That the offender is a surety in a bond given in 2. By interpreting dreams, by making forecasts, by
a criminal or civil action. telling fortunes, or by taking advantage of the credulity
of the public in any other similar manner, for profit or
2. That he guaranteed the fulfillment of such
gain.
obligation with his real property or properties.
Scope of this article—
3. That he sells, mortgages, or, in any other manner
encumbers said real property. Any other kind of conceivable deceit may fall under this
article. As in other cases of estafa, damage to the
4. That such sale, mortgage or encumbrance is (a)
offended party is required
without express authority from the court, or (b)
made before the cancellation of his bond, or (c) Estafa by hiring and using public vehicle without money
before being relieved from the obligation to pay the fare—
contracted by him.
Where the accused hired and used a vehicle and then
failed to pay the fare, because he had no money, he was
guilty of estafa under Art. 534, No. 1 of the old Penal
Art. 317: Swindling a minor
Code, as amended by Act No. 3244, in connection with
Penalty: arresto mayor and a fine of the sum ranging Arts. 535, No. 1, and 536 of said Code.
from 10-50 per cent of the value of the obligation
The deceits in this article include false pretenses and
contracted by the minor
fraudulent acts—
Elements:

1. That the offender takes advantage of the

Chapter 7: Chattel Mortgaged
inexperience or emotions or feelings of a minor.
Art. 319: Removal, sale, or pledge of mortgaged
2. That he induces such minor (1) to assume an
property
obligation, or (2) to give release, or (3) to execute a
transfer of any property right. Penalty: arresto or a fine amounting to twice the value
of the property
3. That the consideration is (1) some loan of
money, (2) credit, or (3) other personal property. Object of Art. 319— US vs. Kikayo

4. That the transaction is to the detriment of such [Derived from the Chattel Mortgage Law]
minor.
to give the necessary sanction to the provision of the
Real property not included— statute in the interest of the public at large, so that in all
cases wherein loans are made and secured under the
Element No. 3 specifies loan of money, credit or
terms of the statute, the mortgage debtors may be
other personal property as a consideration. Real
deterred from the violation of its provisions and the
property is not included because it cannot be made
mortgage creditors may be protected against loss or
to disappear, since a minor cannot convey real
inconvenience resulting from the wrongful removal or
property without judicial authority. (Albert)
sale of the mortgaged property
What is the age of the minor—
Purpose of paragraph No. 1 of Art. 319— People vs.
When the Code is silent as to the age of the minor Mata
as the offended party or victim of the offense, it is
protection of the mortgagee who should be able to have
understood that he must be under 21 years, as
a ready access to, and easy reach of, the property
provided in the Civil Code
subject of the mortgage.

Acts punishable under Art. 319—

Art. 318: Other deceits
1. By knowingly removing any personal property
Penalty: arresto mayor and a fine of not less than mortgaged under the Chattel Mortgage Law to any
the amount of the damaged caused and not more province or city other than the one in which it was
than twice the amount located at the time of execution of the mortgage,
without the written consent of the mortgagee or his
Other deceits are: executors, administrators or assigns.
1. By defrauding or damaging another by any other 2. By selling or pledging personal property already
deceit not mentioned in the preceding articles. pledged, or any part thereof, under the terms of the
Chattel Mortgage Law, without the consent of the
43
mortgagee written on the back of the mortgage and b. That the offender, who is the mortgagor of such
noted on the record thereof in the office of the register property, sells or pledges the same or any part thereof.
of deeds of the province where such property is
c. That there is no consent of the mortgagee written on
located.
the back of the mortgage and noted on the record
The chattel mortgage must be valid and subsisting— thereof in the office of the register of deeds.
People vs. Vda de Agoncillo

If the chattel mortgage does not contain an affidavit of

House may be subject of chattel mortgage by
good faith and is not registered, it is void and cannot be
agreement of the parties— People vs. Daproza et al.
the basis of a criminal prosecution under Art. 319.
If parties agreed to subject the house under chattel
Elements of knowingly removing mortgaged personal
mortgage; and the terms made under the Chattel
property:
Mortgage Law without the consent of the first
a. That personal property is mortgaged under the mortgagee
Chattel Mortgage Law.
Second chattel mortgage is included— Us vs. Vda de
b. That the offender knows that such property is so Agoncillo
mortgaged.
a second mortgage is, aside from sale or pledge,
c. That he removes such mortgaged personal property contemplated by the law, for the Spanish text uses the
to any province or city other than the one in which it word "hipoteca."
was located at the time of the execution of the
The consent of the mortgagee must be (1) in writing, (2)
mortgage.
on the back of the mortgage, and (3) noted on the
d. That the removal is permanent. record thereof in the office of the register of deeds—

e. That there is no written consent of the mortgagee or Thus, if the consent of the mortgagee is written only on
his executors, administrators or assigns to such removal. a separate piece of paper, the sale or pledge of the
property by the mortgagor is a violation of Art. 319.
Liability of person other than the mortgagor—
Damage is not necessary—
Liability of a 3rd person under Art. 319: the offender is
any person who shall knowingly remove the mortgaged Chattel mortgage may give rise to estafa by means of
personal property to another province or city without deceit— US vs. Calsim
the written consent of the mortgagee, etc.
Held: It is evident that the appellant obtained the loan
If the chattel mortgage is not registered, there is no from complainant through false representation or deceit
violation of Art. 319; no felonious intent when transfer which is one of the elements constituting the crime of
of personal property is due to change of residence— estafa. It is apparent that the complainant had granted
People vs. Mata the loan to appellant in the belief that the security
offered was good and sufficient to guarantee his
Example of violation of par. No. 1 of Art. 319—US vs.
investment because it was free from any lien or
Rimon
encumbrance. Had he known that it was already
The accused mortgaged his piano then in Manila to the encumbered, the likelihood was that he would not have
offended party to secure the payment of his debt to the granted the loan, which proves the fraud of which he
latter in the amount of P350. Thereafter, the accused was a victim.
took the piano to Calibo, Capiz, without the offended
But appellant contends that under the facts proven, he
party knowing the removal of the piano.
cannot be guilty of estafa for there is nothing to show
The removal of the mortgaged personal property must that complainant has suffered any damage or injury as a
be coupled with intent to defraud— People vs. Torres result of the execution of the second mortgage.

Filing a civil action for collection, not for foreclosure of This contention is untenable. While the mortgage
chattel mortgage, relieves the accused of criminal executed by appellant in favor of complainant is for a
responsibility—People vs. Mata period of five years and that period has not yet expired,
it does not follow that complainant has not suffered any
Elements of selling or pledging personal property damage or injury as a consequence of the fraud for
already pledged: indeed he has been deprived of the use of his money
a. That personal property is already pledged under the because of such fraud while he stands to lose it in view
terms of the Chattel Mortgage Law. of his failure to obtain the registration of the deed of
mortgage

44
Distinguished from estafa (Art. 316) by disposing of contemplates crimes with less significant social,
encumbered property— economic, political and national security implications
than Destructive Arson.
In both offenses there is the selling of a mortgaged
property. In estafa under Art. 316, par. 2, the property Art. 321: Other forms of arson
involved is real property; in sale of mortgaged property
Penalty: Reclusion temporal to reclusion perpetua (if
(Art. 319), it is personal property
destruction of evidence favors defendant)
But to constitute the crime of estafa, it is sufficient that
[setting fire to an inhabited structure; damage
the real property mortgaged be sold as free, even
exceeding 6,000php; intended to destroy evidence to be
though the vendor may have obtained the consent of
used in prosecution, or in any legislative, judicial or
the mortgagee in writing.
administrative proceedings; intended for collecting
The purpose of the law in Art. 319 is to protect the under an insurance policy]
mortgagee; in Art. 316, the purpose is to protect the
Reclusion temporal
purchaser, whether the first or the second.
[inhabited house or accustomed meeting place set on
fire; setting fire to a moving freight train or motor
Chapter 8: Arson and other crimes involving vehicle, damage exceeding 6000php; damage in
destruction previous subdivision not exceeding 6,000php; setting
fire to a sugar mill, cane mill, mill central, bamboo
Note: Arts. 320-326 are repealed or amended by PD
grooves, or similar plantation, damage exceeding
No. 1613
6000php; setting fire to grain fields, pasture lands, or
The laws on arson in force today are PD No. 1613 and forests, or plantings, damage exceeds 6,000php]
Art. 320 as amended by RA No. 7659. The provisions of
Prision mayor
PD No. 1613 which is inconsistent with RA No. 7659 are
deemed repealed [damage in paragraphs (a) (c) (d) of previous subdivision
does not exceed 6,000php; non-dwelling place on a
Art. 320: Destructive Arson
populated area is set on fire
Penalty: reclusion perpetua to death
Prision correccional in its maximum period to prision
Destructive Arson— correccional in its medium period

Article 320 of The Revised Penal Code, as amended by [dwelling in an uninhabited place is set on fire, damage
RA 7659, contemplates the malicious burning of exceeding 1,000php; damage in paragraphs (c) (d) of
structures, both public and private, hotels, buildings, subdivision 2 does not exceed 200php]
edifices, trains, vessels, aircraft, factories and other
Prision correccional in its medium period to prision
military, government or commercial establishments by
correccional in its minimum period]
any person or group of persons. The classification of this
type of crime is known as Destructive Arson, which is [damage between 200-1000php, setting fire to property
punishable by reclusion perpetua to death. indicated in paragraph (a) of previous subdivision;
penalty next lower in degree, if value does not exceed
People vs. Soriano: The reason for the law is self-
200php]
evident: to effectively discourage and deter the
commission of this dastardly crime, to prevent the Prision correccional in its minimum and maximum
destruction of properties and protect the lives of periods
innocent people.
[if damage caused in par (b) of subdivision 3 between
Penalty for Destructive Arson resulting in death— 200-6000php]

However, pursuant to Rep. Act No. 9346 which Prision correccional in its minimum and medium periods
prohibited the imposition of the death penalty, the
[if damage caused in par (b) of subdivision 3 does not
mandatory penalty of death for Destructive Arson
exceed 200php]
where death ensues is now downgraded to reclusion
perpetua with no eligibility for parole. Arresto mayor and a fine between 50-100 per centum of
the damage caused to grain fields, pasture lands,
Destructive Arson, distinguished from Simple Arson
forests, or plantations—when value does not exceed
under PD No. 1613— People vs. Soriano
200php]
The nature of Destructive Arson is distinguished from
Simple Arson by the degree of perversity or viciousness
of the criminal offender…In other words, Simple Arson
45
Art. 322: Cases of arson not included in the preceding Art. 325: Burning one’s own property as a means to
articles commit arson

Penalty: Penalty: penalty prescribed in this chapter

Arresto mayor in its medium and maximum periods Art. 326: Setting fire to property exclusively owned by
[damage does not exceed 50php] the offender

Arresto mayor in its maximum period to prision Arson is committed for the purpose of defrauding or
correccional in its minimum period [when the damage causing damage to another, or is actually caused, or
caused between 50-200php] buring of an inhabited building

Prision correccional in its minimum and medium periods Penalty: arresto mayor in its maximum period to prision
[damage caused between 200-1000php] correccional in its minimum period

Prision correccional in its medium and maximum

periods [damage over 1000php]
Art. 326-A: In cases where death resulted as a
Art. 323: Arson of small value consequence of arson

Penalty in accordance with the damage caused and Penalty: death

under the provisions of the following chapter
Art. 326-B: Prima facie evidence of arson
[arson of any uninhabited hut, storehouse, barn, shed,
1. If after the fire, are found materials or substances
or any other property the value of which does not
soaked in gasoline, kerosene, petroleum, or other
exceed 25php]
inflammables, or any mechanical, electrical, chemical, or
Art. 324: Crimes involving destruction electronic contrivance designed to start a fire, or ashes
or traces of any of the foregoing;
Penalty: reclusion temporal [there is endangerment of
any person] 2. That substantial amount of inflammable substance or
materials were stored within the building not necessary
Prision mayor [otherwise]
in the course of the defendant's business; and 3. That
Elements of crimes involving destruction: the fire started simultaneously in more than one part of
the building or locale under circumstances that cannot
1. The offender causes destruction. normally be due to accidental or unintentional causes:
2. Destruction is caused by any of the following means: Provided, however, That at least one of the following is
a. explosion present in any of the three above-mentioned
circumstances:]
b. discharge of electric current
(a) That the total insurance carried on the building
c. inundation, sinking or stranding of a vessel, or and/or goods is more than 80 per cent of the value of
intentional damaging of the engine of said vessel such building and/or goods at the time of the fire;
d. taking up the rails from a railway track (b) That the defendant after the fire has presented a
e. maliciously changing railway signals for the safety of fraudulent claim for loss.
moving trains Penalty for planting articles mentioned to secure
f. destroying telegraph wires and telegraph posts, or conviction or as a means of extortion or coercion:
those of any other system prision correccional

g. using any other agency or means of destruction as Section 1. Arson. Any person who burns or sets
effective as those above enumerated fire to the property of another shall be punished by
Prision Mayor.
Crimes Involving Destruction, as Terrorism— RA No.
9372 The same penalty shall be imposed when a person
sets fire to his own property under circumstances
sowing and creating a condition of widespread and which expose to danger the life or property of another.
extraordinary fear and panic among the populace, in
order to coerce the government to give in to an Section 2. Destructive Arson. The penalty of
unlawful demand Reclusion Temporal in its maximum period to
Reclusion Perpetua shall be imposed if the property
Penalty: 40 years imprisonment without benefit of burned is any of the following:
parole

46
 1. Any ammunition factory and other The offense is committed by a syndicate if its is
establishment where explosives, planned or carried out by a group of three (3) or more
inflammable or combustible materials are persons.
stored.
Section 5. Where Death Results from Arson. If by
2. Any archive, museum, whether public or reason of or on the occasion of the arson death
private, or any edifice devoted to culture, results, the penalty of Reclusion Perpetua to death
education or social services. shall be imposed.

3. Any church or place of worship or other Section 6. Prima Facie evidence of Arson. Any of
building where people usually assemble. the following circumstances shall constitute prima
facie evidence of arson:
4. Any train, airplane or any aircraft, vessel
or watercraft, or conveyance for 1. If the fire started simultaneously in more
transportation of persons or property than one part of the building or
establishment.
4. Any building where evidence is kept for
use in any legislative, judicial, 2. If substantial amount of flammable
administrative or other official substances or materials are stored within
proceedings. the building note necessary in the
business of the offender nor for household
5. Any hospital, hotel, dormitory, lodging us.
house, housing tenement, shopping
center, public or private market, theater or 3. If gasoline, kerosene, petroleum or other
movie house or any similar place or flammable or combustible substances or
building. materials soaked therewith or containers
thereof, or any mechanical, electrical,
6. Any building, whether used as a chemical, or electronic contrivance
dwelling or not, situated in a populated or designed to start a fire, or ashes or traces
congested area. of any of the foregoing are found in the
ruins or premises of the burned building or
Section 3. Other Cases of Arson. The penalty of property.
Reclusion Temporal to Reclusion Perpetua shall be
imposed if the property burned is any of the following: 4. If the building or property is insured for
substantially more than its actual value at
1. Any building used as offices of the the time of the issuance of the policy.
government or any of its agencies;
4. If during the lifetime of the
2. Any inhabited house or dwelling; corresponding fire insurance policy more
than two fires have occurred in the same
or other premises owned or under the
3. Any industrial establishment, shipyard,
control of the offender and/or insured.
oil well or mine shaft, platform or tunnel;
5. If shortly before the fire, a substantial
4. Any plantation, farm, pastureland,
portion of the effects insured and stored in
growing crop, grain field, orchard, bamboo
a building or property had been withdrawn
grove or forest;
from the premises except in the ordinary
course of business.
4. Any rice mill, sugar mill, cane mill or mill
central; and
6. If a demand for money or other valuable
consideration was made before the fire in
5. Any railway or bus station, airport, wharf exchange for the desistance of the
or warehouse. offender or for the safety of the person or
property of the victim.
Section 4. Special Aggravating Circumstances in
Arson. The penalty in any case of arson shall be Section 7.  . Conspiracy to commit arson shall be
imposed in its maximum period; punished by Prision Mayor in its minimum period.

1. If committed with intent to gain; Section 8. Confiscation of Object of Arson. The

building which is the object of arson including the land
2. If committed for the benefit of another; on which it is situated shall be confiscated and
escheated to the State, unless the owner thereof can
3. If the offender is motivated by spite or prove that he has no participation in nor knowledge of
hatred towards the owner or occupant of the such arson despite the exercise of due diligence on
property burned; his part.

4. If committed by a syndicate.
47
Section 9. Repealing Clause. The provisions of The law does not lay down any hard and fast rule insofar
Articles 320 to 326-B of the Revised Penal Code and as attempted arson, or any attempted crime for that
all laws, executive orders, rules and regulations, or
matter, is concerned
parts thereof, inconsistent with the provisions of this
Decree are hereby repealed or amended accordingly. On the contrary, when there is fire, the Supreme Court
has held invariably that crime committed is either
Section 10. Effectivity. This Decree shall take effect
immediately upon publication thereof at least once in
frustrated arson or consummated arson, never
a newspaper of general circulation. attempted.

Burning of Houses, considered Simple Arson under PD

Arson, defined—
1613— People vs. Soriano
Arson is denned as the malicious destruction of
Where the properties burned by accused-appellant are
property by fire.
specifically described as houses, contemplating
Kinds of arson. inhabited houses or dwellings under PD 1613 and the
descriptions as alleged in the Information particularly
1. Simple Arson (Sec. 1, P.D. No. 1613)
refer to the structures as houses rather than as buildings
2. Destructive Arson (Art. 320, as amended by R.A. No. or edifices, the applicable law is Sec. 3, par. 2, of PD
7659) 1613, and not Art. 320, par. 1 of the Revised Penal Code.
In case of ambiguity in construction of penal laws, it is
3. Other cases of arson (Sec. 3, P.D. No. 1613) wellsettled that such laws shall be construed strictly
PD 1613 is the governing law for Simple Arson—People against the government, and liberally in favor of the
vs. Soriano accused.

Although the purpose of the law on Simple Arson is to

prevent the high incidence of fires and other crimes There is no complex crime of arson with homicide—
involving destruction, protect the national economy and
preserve the social, economic and political stability of P.D. No. 1613 provides that if by reason of or on the
the nation, PD 1613 tempers the penalty to be meted to occasion of arson, death results, the penalty of reclusion
offenders. This separate classification of Simple Arson perpetua to death shall be imposed. The crime of
recognizes the need to lessen the severity of homicide is absorbed.
punishment commensurate to the act or acts
Prima face evidence of arson—
committed, depending on the particular facts and
circumstances of each case. y of the seven (7) circumstances enumerated in Sec. 6 of
P.D. No. 1613 shall constitute prima face evidence of
Attempted, frustrated and consummated arson—
arson.
The crime committed is attempted arson, because the
Standing alone, unexplained or uncontradicted, any of
offender commences the commission of the crime
those circumstances is sufficient to establish the fact of
directly by overt acts (placing the rags soaked in
arson.
gasoline beside the wooden wall of the building and
lighting a match) but he does not perform all the acts of Arson under P.D. 1613, as Terrorism— RA No. 9372
execution (the setting of fire to the rags) due to the
thereby sowing and creating a condition of widespread
timely intervention of another who chases away the
and extraordinary fear and panic among the populace,
offender.
in order to coerce the government to give in to an
US vs. Valdez: If that person is able to light or set fire to unlawful demand
the rags but the fire was put out before any part of the
Penalty: 40 years imprisonment without benefit of
building was burned, it is frustrated
parole
But if before the fire was put out, it had burned a part of
the building, it is consummated
Chapter 9: Malicious mischief
US vs. Go Foo Suy: Setting fire to the contents of a
building constitutes the consummated crime of setting Malicious mischief, defined—
fire to a building, even if no part of the building was
Malicious mischief is the willful damaging of another's
burned.
property for the sake of causing damage due to hate,
In attempted arson, it is not necessary that there be a revenge or other evil motive.
fire— People vs. Go Kay citing People vs. Garcia
48
Art. 327: Who are liable for malicious mischief This article does not refer to mischief resulting from a
crime, such as the damages caused by a robber in
Any person who shall deliberately cause to the
breaking the window, for the reason that such damages
property of another any damage not falling within the
are mere incidents of the crime of robbery, and as such
terms of the next preceding chapter shall be guilty of
may give rise only to civil liability. (Guevara)
malicious mischief
May a person charged with malicious mischief be found
Elements of malicious mischief—
guilty of damage to property through reckless
1. That the offender deliberately caused damage to the imprudence— People vs. Falier
property of another.
Yes, because reckless imprudence is not a crime in itself.
2. That such act does not constitute arson or other It is simply a way of committing it. The allegation in the
crimes involving destruction. information that the accused acted willfully, maliciously,
unlawfully and criminally, not being objected to,
3. That the act of damaging another's property be includes the charge that he acted with negligence.
committed merely for the sake of damaging it. Negligence is punishable when it results in a crime, as in
Note: This third element presupposes that the offender this case.
acted due to hate, revenge or other evil motive. What are the cases of malicious mischief as regards the
"Shall deliberately cause to the property of another any means employed and the nature of the damaged
damage."—Quinzon vs. Justice of Peace et al. properties—

This phrase means that the offender should act under 1. Special cases of malicious mischief. (Art. 328)
this impulse of a specific desire to inflict injury to 2. Damage and obstruction to means of
another. communications. (Art. 330)
It follows that, in the very nature of things, malicious 3. Destroying or damaging statues, public monuments
mischief cannot be committed through negligence, since or paintings. (Art. 331)
culpa and malice are essentially incompatible.

Killing the cow of another as an act of revenge is

malicious mischief—People vs. Valiente et al.

Is it malicious mischief if the act of damaging another's Art. 328: Special cases of malicious mischief
property was inspired, not by hatred or by a desire for
Penalty:
revenge, but by the mere pleasure of destroying—
People vs. Siddyao Prision correccional in its minimum and medium period
[value exceeds 1000php]
Yes. Malicious mischief embraces those attempts against
another's property inspired sometimes by hatred or a Arresto maypr [value between 200-1000php]
desire for revenge and sometimes by the mere pleasure
Arresto menor [value does not exceed 200php]
of destroying.
The special cases of malicious mischief are:
If no malice, only civil liability— Art. 2176 of Civil Code
1. Causing damage to obstruct the performance of
If there is no malice in causing the damage, the
public functions.
obligation to repair or pay for damages is only civil.
2. Using any poisonous or corrosive substance.
Meaning of damage in malicious mischief— People vs.
Asido et al. 3. Spreading any infection or contagion among cattle.
Damage means not only loss but also diminution of 4. Causing damage to the property of the National
what is a man's own. Thus, damage to another's house Museum or National Library, or to any archive or
includes defacing it. registry, waterworks, road, promenade, or any other
thing used in common by the public.
It is theft when there is intent to gain—
These are called qualified malicious mischief—
If after damaging the property, the offender removes or
makes use of the fruits or objects of the damage, it is First case of qualified malicious mischief distinguished
theft. (Art. 308, par. 2) from sedition.—
Damaging of property must not result from crime— This mischief mentioned in the first clause (No. 1) is to
Guevarra be distinguished from sedition (Art. 139), in that the

49
element of public and tumultuous uprising is not Penalty: prision correccional in its medium and
present in this crime. maximum periods [damage railway, telegraph or
telephone lines]
The two offenses are, however, similar in that there is
present in the commission of the offense, the intent to Prision mayor without prejudice to criminal liability over
obstruct the performance of public functions. consequences of his criminal act [damage results to
derailment of cars, or other accident]
Using poisonous or corrosive substance—
Damage and obstruction to means of communication—
The poisonous substance may be used to kill large cattle
or other animals of the offended party. The corrosive Damage and obstruction to means of communication is
substance may be used to cause rust on a machine or to committed by damaging any railway, telegraph or
destroy property through the action of chemicals telephone lines.

Circumstance qualifying the offense—

Art. 329: Other mischiefs If the damage shall result in any derailment of cars,
collision, or other accident, a higher penalty shall be
Penalty:
imposed
Arresto mayor in its medium and maximum periods
"If the damage shall result in any derailment of cars,
[damage exceeding 1000php]
collision, or other accident."—
Arresto mayor in its minimum and medium periods
The derailment or the collision of cars should not have
[damage between 200-1000php]
been purposely sought for by the offender. It must have
Arresto menor or a fine not less than the value of the resulted from damage to railway, telegraph or telephone
damage caused and not more than 200php [damage lines.
not exceeding 200php]
It should not be removing rails from railway track to
Other mischiefs should not be included in Art. 328 — cause destruction.—
basis of penalty—
The object of the offender in Art. 330 is merely to cause
Mischiefs not included in Art. 328 are punished damage; whereas in Art. 324, his object is to cause
according to the value of the damage caused. destruction.

Even if the amount involved cannot be estimated, the Not applicable when the telegraph or telephone lines do
penalty of arresto menor or fine not exceeding P200 is not pertain to railways—
fixed by law.
It would seem that cutting the telephone wires or those
Killing cows of another as an act of revenge— People vs. for transmission of electric light or power, not pertaining
Valiente et al. to railways is not covered by Art. 330.

The cows of B caused destruction to the plants of A. As The second paragraph of Art. 330 speaks of damage to
an act of revenge, A and his tenants killed said cows. telegraph or telephone lines resulting in derailment of
cars, collision, etc.
Held: The crime being committed out of hate and
revenge, is that of malicious mischief penalized in Art. When a person or persons are killed—
329, par. 3
. Art. 330 says "without prejudice to the criminal liability
Scattering human excrement in public building is other of the offender for other consequences of his criminal
mischief — value of damage cannot be estimated— act." If there is no intent to kill, it is "damages to means
People vs. Dumlao of communication" with homicide because of the first
part of Art. 4 and Art. 48. If there is intent to kill, and
When several persons scattered coconut remnants damaging the railways was the means to accomplish the
which contained human excrements on the stairs and criminal purpose, it is murder.
floor of the municipal building, including its interior, the
crime committed is malicious mischief under Art. 329. Art. 248, par. 3, says that murder is committed also "by
means of derailment," meaning that it is the means to
kill another.
Art. 330: Damage and obstruction to means of
communication
Art. 331: Destroying or damaging statutes, public
monuments or paintings

50
Penalty: arresto mayor in its medium period to prision An adopted or natural child should also be considered
correccional in its minimum period as relatives included in the term "descendants" and a
concubine or paramour within the term "spouses."
Arresto menor or a fine exceeding 200php or both
(Guevara)
[destruction of ornamental painting of a public nature]
Art. 332 applies to common-law spouses— Art. 144 Civil
Code; People vs. Constantino
Art. 332: Persons exempt from criminal liability:
Even our Civil Code concedes to a man and a woman
Crimes involved in the exemption— who live together as husband and wife without benefit
of ceremony, the right of co-ownership to the "property
1. Theft, acquired by either or both of them through their work
2. Swindling (estafa), or industry or their wages and salaries."

3. Malicious mischief. The widowed spouse who commits theft, estafa or

malicious mischief with respect to property of deceased
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 To be exempt from criminal liability, it is required that —
document against his father, he is criminally liable for (1) the property belongs to the deceased spouse; and
the crime of falsification.
(2) it has not passed into the possession of a third
Persons exempted from criminal liability— person
1. Spouses, ascendants and descendants, or relatives Brothers and sisters and brothers-in-law and sisters-in-
by affinity in the same line. law must be living together at the time of the
2. The widowed spouse with respect to the property commission of any of the crimes of theft, estafa or
which belonged to the deceased spouse before the malicious mischief—People vs. Navas
same passed into the possession of another. Thus, when the accused, the brother-in-law of the
3. Brothers and sisters and brothers-in-law and sisters- offended party, was living in the house of the offended
in-law, if living together. party at the time he received PI,000 from the latter to
buy plumbing fixtures for her, and misappropriated it to
There is only civil liability— her prejudice, there was 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—

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)

Stepfather, adopted father, natural children, concubine,

paramour, included—

Stepfather and stepmother are included as ascendants

by affinity.

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