Criminal Law Book 2 – Title Ten

TITLE TEN

I. CRIMES AGAINST PROPERTY

A. ELEMENTS OF ROBBERY IN GENERAL: (293)

  1. That there be personal property belonging to another.
  2. That there is unlawful taking of that property.
  3. That the taking must be with intent to gain, and
  4. That there is violence against or intimidation of any person, or force upon anything.

Notes:

  1. Belonging to another – person from whom property was taken need not be the owner, legal possession is sufficient
  2. Name of the real owner is not essential so long as the personal property taken does not belong to the accused except if crime is robbery with homicide
  3. Taking of personal property – must be unlawful; if given in trust – estafa
  4. As to robbery with violence or intimidation – from the moment the offender gains possession of the thing even if offender has had no opportunity to dispose of the same, the unlawful taking is complete
  5. As to robbery with force upon things – thing must be taken out of the building
  6. Intent to gain – presumed from unlawful taking
  7. Taking must not be under the claim of title or ownership
  8. When there’s no intent to gain but there is violence in the taking – grave coercion
  9. Violence or intimidation must be against the person of the offended party, not upon the thing

10. General rule: violence or intimidation must be present before the “taking” is complete

11. Except: when violence results in – homicide, rape, intentional mutilation or any of the serious physical injuries in par 1 and 2 of art 263, the taking of the property is robbery complexed with any of these crimes under art 294, even if taking is already complete when violence was used by the offender

12. Use of force upon things – entrance to the building by means described in arts 299 and 302 (offender must enter)

13. When both violence or intimidation and force upon things concur – it is robbery with violence

Robbery with violence

Grave threats

Grave coercion

Intent to gain No intent to gain None
Immediate harm Intimidation; promises some future harm or injury Intimidation (effect) is immediate and offended party is compelled to do something against his will (w/n right or wrong)

 

Robbery

Bribery

X didn’t commit crime but is intimidated to deprive him of his property X has committed a crime and gives money as way to avoid arrest or prosecution
Deprived of Php thru force or intimidation Giving of Php is in one sense voluntary
Neither Transaction is voluntary and mutual
Ex. defendant demands payment of P2.00 with threats of arrest and prosecution, therefore, robbery because (a) intent to gain and (b) immediate harm  

A.   ELEMENTS OF ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON: (294)

Acts punished as robbery with violence against or intimidation of persons

By reason or on occasion of the robbery, the following are committed:

  1. homicide
  2. robbery accompanied with rape or intentional mutilation, SPI – insane, imbecile, impotent or blind
  3. SPI – lost the use of speech, hear, smell, eye, hand, foot, arm, leg, use of any such member, incapacitated for work habitually engaged in
  4. Violence/intimidation shall have been carried to a degree clearly unnecessary for the crime or when in the cause of its execution – SPI/deformity, or shall have lost any part of the body or the use thereof or shall have been ill or incapacitated for the performance of the work for > 90 days; > 30 days
  5. Any kind of robbery with less serious physical injuries or slight physical injuries

Notes:

  1. special complex crimes (specific penalties prescribed)
    1. robbery with homicide – if original design is robbery and homicide is committed – robbery with homicide even though homicide precedes the robbery by an appreciable time. If original design is not robbery but robbery was committed after homicide as an afterthought – 2 separate offenses. Still robbery with homicide – if the person killed was an innocent bystander and not the person robbed and if death supervened by mere accident.
    2. robbery with rape – intent to commit robbery must precede rape. Prosecution of the crime need not be by offended party – fiscal can sign the information. When rape and homicide co-exist, rape should be considered as aggravating only and the crime is still robbery with homicide
    3. robbery with intimidation – acts done by the accused which by their own nature or by reason of the circumstances inspire fear in the person against whom they are directed
    4. qualifying circumstances in robbery with violence or intimidation of persons, if any of the offenses defined in subdivisions 3, 4 and 5 of Art 294 is committed:
      1. in an uninhabited place or
      2. by a band or
      3. by attacking a moving train, street car, motor vehicle or airship, or
      4. by entering the passenger’s compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or
      5. on a street, road, highway or alley and the intimidation is made with the use of firearms, the offender shall be punished by the max period of the proper penalties prescribed in art 294

B.   QUALIFIED ROBBERY WITH VIOLENCE OR INTIMIDATION (295)

Notes:

  1. Must be alleged in the information
  2. Can’t be offset by generic mitigating
  3. Art 295 will not apply to: robbery w/ homicide, rape or SPI under par 1 of art 263

C.   ROBBERY BY A band: (296)

notes:

  1. More than 3 armed malefactors
  2. Liability for the acts of the other members of the band
  3. Conspiracy to commit robbery with homicide – even if less than 4 armed men
  4. Conspiracy to commit robbery only but homicide was committed also on the occasion thereof – all members of the band are liable for robbery with homicide
  5. Conspiracy is presumed when 4 or more armed persons committed robbery
  6. Unless the others attempted to prevent the assault – guilty of robbery by band only
  1. he was a member of the band
  2. he was present at the commission of a robbery by that band
  3. other members of the band committed an assault
  4. he did not attempt to prevent the assault

D.   ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE: (297)

Notes:

  1. Whether robbery is attempted or frustrated, penalty is the same
  2. Where offense committed is attempted or frustrated robbery with serious physical injuries – article 48 is applicable

 

E. ELEMENTS OF EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION: (298)

  1. That the offender has intent to defraud another.
  2. That the offender compels him to sign, execute, or deliver any public instrument or document.
  3. That the compulsion is by means of violence or intimidation.

 

F. ELEMENTS OF ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP: (299)

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

Notes:

  1. Includes dependencies (stairways, hallways, etc.)
  2. Inhabited house – any shelter, ship or vessel constituting the dwelling of one or more person even though temporarily absent – dependencies, courts, corals, barns, etc.
  3. NOT INCLUDED – ORCHARD, LANDS FOR CULTIVATION.
  4. Important for robbery by use of force upon things, it is necessary that offender enters the building or where object may be found. NO ENTRY, NO ROBBERY
  5. Entrance is necessary – mere insertion of hand is not enough (whole body); not to get out but to enter – therefore, evidence to such effect is necessary
  6. P v. Lamahang – intent to rob being present is necessary
  7. Place: house or building; not car
  8. Public building – every building owned, rented or used by the government (though owned by private persons) though temporarily vacant
  9. Not robbery – passing through open door but getting out of a window

10. Outside door must be broken, smashed. Theft – if lock is merely removed or door was merely pushed

11. False keys – genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock

12. Picklocks – specially made, adopted for commission of robbery

13. Key – stolen not by force, otherwise, it’s robbery by violence and intimidation against persons

14. False key – used in opening house and not furniture inside, otherwise, theft (for latter to be robbery., must be broken and not just opened)

15. Gen. Rule: outside door. Exception: inside door in a separate dwelling

16. E.g. pretending to be police to be able to enter (not pretending after entrance)

G. ELEMENTS OF ROBBERY WITH FORCE UPON SUBDIVISION (B) OR ART. 299

  1. That the offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it
  2. That the offender takes personal property belonging to another with intent to gain, under any of the following circumstances.
    1. by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle, or
    2. by taking such furniture or objects away to be broken or forced open outside the place of the robbery.

Notes:

  1. Entrance ( no matter how done)
  2. Offender may be servants or guests
  3. Destruction of keyhole of cabinet is robbery here
  4. When sealed box is taken out for the purpose of breaking it, no need to open – already consummated robbery
  5. Estafa – if box is in the custody of acc
  6. Theft – if box found outside and forced open

H. ROBBERY IN AN UNINHABITED PLACE AND BY A BAND: (300)

I.      WHAT IS AN UNINHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES: (301)

Notes:

  1. dependencies – are all interior courts, corrals, warehouses, granaries or enclosed places:
  1. contiguous to the building
  2. having an interior entrance connected therewith
  3. which form part of the whole

2. Garage – must have 3 requirements. Exception: orchards/lands

J. ELEMENTS OF ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING: (302)

  1. That the offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship.
  2. that any of the following circumstances was present:
  3. That with intent to gain the offender took therefrom personal property belonging to another.
  1. That entrance was effected through an opening not intended for entrance or egress.
  2. A wall, roof, floor, or outside door or window was broken.
  3. The entrance was effected through the use of false keys, picklocks or other similar tools.
  4. A door, wardrobe, chest, or any sealed or closed furniture or receptacle  was broken or
  5. A closed or sealed receptacle was removed, even if the same be broken open elsewhere.

Notes:

  1. Second kind of robbery with force upon things
  2. Uninhabited place – is an uninhabited building (habitable, not any of the 3 places mentioned)
  3. Ex. warehouse, freight car, store. Exception: pigsty
  4. Same manner as 299 except that was entered into was an uninhabited place or a building other than the 3 mentioned in 299. Exception: does not include use of fictitious name or pretending the exercise of public authority
  5. Breaking of padlock (but not door) is only theft
  6. False keys – genuine keys stolen from the owner or any other keys other than those intended by the owner for use in the lock forcibly opened

K. ROBBERY OF CEREALS, FRUITS OR FIRE WOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING: (303)

L. ELEMENTS OF ILLEGAL POSSESSION OF PICKLOCKS OR SIMILAR TOOLS: (304)

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

Note: Actual use of the same is not necessary

M. ELEMENTS OF FALSE KEYS: (305)

  1. Picklocks, etc.
  2. Genuine key stolen from owner.
  3. Any key other than those intended by owner for use in the lock forcibly opened by the offender

Notes:

  1. Possession of false keys here not punishable
  2. If key was entrusted and used to steal, not robbery (not stolen)

 

II. BRIGANDAGE

A. BRIGANDAGE: (306)

Brigands – more than three armed persons forming a band

Purpose:

a.   Robbery in highway

  1.         b.   Kidnapping for extortion or ransom.
    1. Any other purpose to be obtained by means of force and violence.

Presumption of Brigandage:

  1. if members of lawless band and possession of unlicensed firearms (any of them)
  2. possession of any kind of arms (not just firearm)

BRIGANDAGE

ROBBERY IN BAND

Purposes are given Only to commit robbery, not necessarily in hi-way
Mere formation of a band for the above purpose If the purpose is to commit a part robbery
  Necessary to prove that band actually committed robbery

 

B.  ELEMENTS OF AIDING AND ABETTING A BAND OF BRIGANDS: (307)

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

Notes:

  1. PD 532 – brigandage. Seizure of any person for: (a) ransom; (b) extortion or other unlawful purpose; (c) taking away of property by violence or intimidation or force upon things or other unlawful means
  2. Committed by any person
  3. On any Phil hi-way

 

III. THEFT

A. ELEMENTS OF THEFT: (308)

  1. That there be taking of personal property.
  2. That said property belongs to another.
  3. That the taking be done with intent to gain.
  4. That the taking be done without the consent of the owner.
  5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things.

Persons liable:

  1. Those who

a)    with intent to gain

b)    but without violence against or intimidation of persons not force upon things

c)    take

d)    personal property

e)    of another

f)     without the latter’s consent

  1. Those who

a)    having found lost property

b)    fail to deliver the same to local authorities or its owner

Notes:

  1. Retention of money/property found is theft. Retention is failure to return (intent to gain)
  2. Knowledge of owner is not required, knowledge of loss is enough
  3. Finder in law is liable
  4. Those who

a)    after having maliciously damaged the property of another

b)    remove or make use of the fruits or object of the damage caused by them

Note: Killing of cattle of another which destroyed his property and getting meat for himself

  1. Those who

a)    enter an enclosed estate or a field where

b)    trespass is forbidden or which belongs to another and, without the consent of its owner

c)    hunts or fish upon the same or gather fruits, cereals or other forest or farm products

Notes:

  1. Theft is consummated when offender is able to place the thing taken under his control and in such a situation as he could disclose of it at once (though no opportunity to dispose) i.e, the control test
  2. P v. Dino – applies only in theft of bulky goods (meaning there has to be capacity to dispose of the things). Otherwise, P v. Espiritu – full possession is enough
  3. Servant using car without permission deemed qualified theft though use was temporary
  4. Reyes says: there must be some character of permanency in depriving owner of the use of the object and making himself the owner, therefore must exclude “joyride”
  5. Theft: if after custody (only material possession) of object was given to the accused, it is actually taken by him (no intent to return) e.g. felonious conversion. But it is estafa if juridical possession is transferred e.g., by contract of bailment
  6. Includes electricity and gas
    1. inspector misreads meter to earn
    2. one using a jumper
  7. Selling share of co-partner is not theft
  8. Salary must be delivered first to employee; prior to this, taking of Php is theft
  9. If offender claims property as his own (in good faith) – not theft (though later found to be untrue. If in bad faith – theft)

10. Gain is not just Php – satisfaction, use, pleasure desired, any benefit (e.g. joyride)

11. Actual gain is not necessary (intent to gain necessary)

12. Allege lack of consent in info is important

 

B. ELEMENTS OF HUNTING, FISHING OR GATHERING FRUITS, ETC. IN ENCLOSED ESTATE

(PAR. NO.3, ART. 308)

  1. That there is an enclosed estate or a field where trespass is forbidden or which belongs to another;
  2. That the offender enters the same.
  3. That the offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products, and
  4. That the hunting or fishing or gathering of products is without the consent of the owner.

Note: Fish not in fishpond, otherwise, qualified

C.PENALTIES FOR QUALIFIED THEFT; (309)

D. ELEMENTS OF QUALIFIED THEFT: (310)

  1. Committed by domestic servant, or
  2. With grave abuse of confidence, or
  3. Property stolen is:
    1. motor vehicle
    2. mail matter
    3. large cattle
    4. coconut from plantation
    5. fish from fishpond or fishery, or
    6. On occasion of calamities and civil disturbance.

Notes:

  1. “grave abuse” – high degree of confidence e.g. guests
  2. no confidence, not qualified theft
  3. theft – material possession’ estafa – juridical possession
  4. qualified: if done by one who has access to place where stolen property is kept e.g., guards, tellers
  5. novation theory applies only if there’s a relation
  6. industrial partner is not liable for QT (estafa)
  7. when accused considered the deed of sale as sham (modus) and he had intent to gain, his absconding is QT
  8. see carnapping law: RA 6539
  9. motor vehicle in kabit system sold to another-theft.  Motor vehicle not used as PU in kabit system but under K of lease-estafa
  10. 10.  mail matter – private mail to be QT, Not postmaster – Art. 226

11. theft of large cattle

E. ELEMENTS OF THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM: (311)

 

IV. USURPATION

A. ELEMENTS OF OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY: (312)

  1. That the offender takes possession of any real property or usurps any real rights in property.
  2. That the real property or real rights belong to another.
  3. That violence against or intimidation of persons is used by the offender in occupying real property or usurpation real rights in property.
  4. That there is intent to gain.

B. ELEMENTS OF ALTERING BOUNDARIES OR LANDMARKS: (313)

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

 

V. CULPABLE INSOLVENCY

A. ELEMENTS OF FRAUDULENT INSOLVENCY: (314) (culpable insolvency)

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

 

VI. SWINDLING AND OTHER DECEITS

A.   ELEMENTS OF ESTAFA IN GENERAL: (315)

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

B. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS: (315)

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

C. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER SUBDIVISION NO.1 PAR. (B), OF ART.315

  1. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return, the same.
  2. That there be misappropriation or conversion of such money or property by the offender, or dental on his part of such receipt.
  3. that such misappropriation or conversion or dental is to the prejudice of another and
  4. That there is a demand made by the offended party to the offender.

D. 2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER PARAGRAPH (B), SUBDIVISION N0.1, ART. 315 = 3 WAYS OF COMMITTING:

  1. By misappropriating the thing received.
  2. By converting the thing received.
  3. By denying that the thing was received.

Notes:

  1. Unfaithful or Abuse of Confidence

a. by altering the substance

b. existing obligation to deliver – even if it is not a subject of lawful commerce

c. thing delivered has not been fully or partially paid for – not estafa

  1. no agreement as to quality – No estafa if delivery is unsatisfactory

 

  1. By misappropriating and converting
  1. thing is received by offender under transactions transferring juridical possession, not ownership
  2. under PD 115 (Trust Receipts Law) – failure to turn over to the bank the proceeds of the sale of the goods covered by TR – Estafa
  3. same thing received must be returned otherwise estafa; sale on credit by agency when it was to be sold for cash – estafa
  4. Estafa – not affected by Novation of Contract because it is a public offense
  5. Novation must take place before criminal liability was incurred or perhaps prior to the filing of the criminal information in court by state prosecutors
  6. Misappropriating – to take something for one’s own benefit

g.  Converting – act of using or disposing of another’s property as if it was one’s own; thing has been devoted for a purpose or use different from that agreed upon

  1. There must be prejudice to another – not necessary that offender should obtain gain
  2. When in the prosecution for malversation the public officer is acquitted, the private individual allegedly in conspiracy with him may be held liable for estafa
  1. Partners – No estafa of money or property received for the partnership when the business is commercial and profits accrued.  BUT if property is received for specific purpose and is misappropriated – estafa!
  2. Failure to account after the DEMAND is circumstantial evidence of misappropriation
  3. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof
  4. In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the ting to him – otherwise, Estafa
  5. Servant, domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft

Estafa with Abuse of Confidence

Malversation

Offenders are entrusted with funds or property and are continuing offenses offenders are entrusted with funds or property and are continuing offenses
Funds: always private Funds: public funds or property
Offender: private individual, or public officer not accountable Offender:  public officer accountable for public funds
Committed by misappropriating, converting, denying having received money Committed  by appropriating, taking,

misappropriating

E. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE IN BLANK: (315)

  1. That the paper with the signature of the offended party be in blank.
  2. That the offended party should have delivered it to offender.
  3. That above the signature of the offended party a document is written by the offender without authority to do so.
  4. That the document so written creates a liability of, or causes damage to, the offended party or any third person.

Note: If the paper with signature in blank was stolen – Falsification if by making it appear that he participated in a transaction when in fact he did not so participate.

F. ELEMENTS OF ESTAFA BY MEANS OF DECEIT: (315)

  1. that there must be a false pretense, fraudulent means must be made or executed prior to or
  2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud.
  3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means.
  4. That as a result thereof, the offended party suffered damage.

Notes:

  1. False pretenses or fraudulent acts – executed prior to or simultaneously with delivery of the thing by the complainant
  2. There must be evidence that the pretense of the accused that he possesses power/influence is false.

G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315)

  1. That the offender postdated a check, or issued a check in payment of an obligation.
  2. That such postdatig or issuing a check was done when the offender had no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check.

Notes:

  1. good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31)
  2. dishonor from lack of funds to prima facie evidence of deceit or failure to make good within three days after notice of.
  3. No funds in the bank or his funds are not sufficient
  4. If check was issued in payment of pre-existing debt – no estafa
  5. Offender must be able to obtain something from the offended party by means of the check he issues and delivers
  6. If postdating a check issued as mere guarantee/promissory note – no estafa.

H. ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH OF SECTION 1: BP 22

  1. That a person makes or draws and issues any check.
  2. That the check is made or drawn and issued to apply on account or for value.
  3. That the person who makes or draws and issues the check  knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment.
  1. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been

dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment.

Note: Failure to make good within 5 banking days prima facie evidence of knowledge of  lack and insufficiency

I. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH OF SECTION 1: BP 22

  1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check.
  2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within

a period of 90 days from the date appearing thereon.

  1. That the check is dishonored by the drawee bank.

Note: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency

J. BY OBTAINING FOOD OR CREDIT AT HOTELS, INNS, RESTAURANTS ETC.

K. ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY DOCUMENTS: (315)

  1. That the offender induced the offended party to sign a document.
  2. That deceit be employed to make him sign the document.
  3. That the offended party personally signed the document.
  4. That prejudice be caused.

Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document – falsification; but where the accused made representation to mislead the complainants as to the character of the documents – estafa

L. ELEMENTS OF ESTAFA BY REMOVING, CONCEALING OR DESTROYING DOCUMENTS: (315)

  1. That there be court records, office files, documents or any other papers.
  2. That the offender removed, concealed or destroyed any of them.
  3. That the offender had intent to defraud another.

Note: No intent to defraud – destroying or removal = malicious mischief

M. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION: (315) (second element of any form of estafa)

THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF.:

  1. The offender party being deprived of his money or property, as a result of the defraudation.
  2. Disturbance in property right or
  3. Temporary prejudice.

N. ELEMENTS OF SWINDLING (PAR.1) BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE OWNER OF THE SAME: (316)

  1. That the thing be immovable, such as a parcel of land or a building.
  2. That the offender who is not the owner of said property represented that he is the owner thereof.
  3. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property).
  4. That the act be made to the prejudice of the owner or a third person.

ESTAFA

INFIDELITY IN THE CUSTODY OF DOCUMENTS

Private individual was entrusted

Public officer entrusted

Intent to defraud

No intent to defraud

O. ELEMENTS OF SWINDLING (PAR. 2) BY DISPOSING OF REAL PROPERTY AS FREE FROM ENCUMBRANCE, ALTHOUGH SUCH ENCUMBRANCE BE NOT RECORDED: (316)

  1. that the thing disposed of be real property.
  2. That the offender knew that the real property was encumbered, whether the encumbrance is recorded or not.
  3. That there must be express representation by the offender that the real property is free from encumbrance.
  4. That the act of disposing of the real property be made to the damage of another.

P. ELEMENTS OF SWINDLING (PAR.3) BY WRONGFULLY TAKING BY THE OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR: (316)

  1. That the offender is the owner of personal property.
  2. That said personal property is in the lawful possession of another.
  3. That the offender wrongfully takes it from its lawful possessor.
  4. That prejudice is thereby caused to the possessor or third person.

Q. ELEMENTS OF SWINDLING (PAR. 6) BY SELLING, MORTGAGING OR ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS SURETY: (316)

  1. That the offender is a surety in a bond given in a criminal or civil  action.
  2. That he guaranteed the fulfillment of such obligation with his real property or properties.
  3. That he sells, mortgages, or, in any other manner encumbers said real property.
  4. That such sale, mortage or encumbrance is (a) without express authority from the court, or (b) made before the cancellation of his bond, or (c) before being relieved from the obligation contracted by him.

R. ELEMENTS OF SWINDLING A MINOR: (317)

  1. That the offender takes advantage of the inexperience or emotions or feelings of a minor.
  2. That he induces such minor (a) ro assume an obligation, or (b) to give release, or (c) to execute a transfer of any property right.
  3. That the consideration is (a) some loan of money (b) credit or (c) other personal property.
  4. That the transaction is to the detriment of such minor.

S. ELEMENTS OF OTHER DECEITS: (318)

  1. not mentioned above;
  2. interpretation of dreams, forecast, future-telling for profit or gain.

 

VII. CHATTEL MORTGAGE

A. ELEMENTS OF SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED: (319)

  1. That personal property is already pledged under the terms of the chattel mortgage law.
  2. That the offender, who is the mortgagee of such property, sells or pledges the same or any part thereof.
  3. That there is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.

B. ELEMENTS OF KNOWINGLY REMOVING MORTGAGED PERSONAL PROPERTY: (319)

  1. that personal property is mortgaged under the chattel mortage law.
  2. That the offender knows that such property is so mortaged.
  3. That he removes such mortgaged personal to any province or city other than the one in which it was located at the time of the execution of the mortgage.
  4. that the removal is permanent.
  5. That there is no written consent of the mortgagee or his executors, administration or assigns to such removal.

VIII. ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

(Note: PD 1613 expressly repealed or amended Arts 320-326, but PD 1744 revived Art 320)

A.   ELEMENTS OF ARSONS OF PROPERTY OF SMALL VALUES

  1. That an uninhabited hut, storehouse, barn, shed or any other property is burned
  2. That the value of the property burned does not exceed 25 pesos
  3. That the burning was done at a time or under circumstances which clearly exclude all danger of the fire spreading

B.   ELEMENTS OF CRIME INVOLVING DESTRUCTION

  1. That the offender causes destruction of the property
  2. That the destruction was done by means of:
  1. explosion
  2. discharge of electric current
  3. inundation
  4. sinking or stranding of a vessel
  5. damaging the engine of the vessel
  6. taking up rails from the railway track
  7. destroying telegraph wires and posts or those of any other system
  8. other similar effective means of destruction

C.   ELEMENTS OF BURNING ONE’S PROPERTY AS A MEANS TO COMMIT ARSON

  1. That the offender set fire to or destroyed his own property
  2. That the purpose of the offender in doing so was to commit arson or to cause a great destruction
  3. That the property belonging to another was burned or destroyed

D.   ELEMENTS OF ARSON

  1. That the property burned is the exclusive property of the offender
  2. That (a) the purpose of the offender is burning it is to defraud or cause damage to another or (b) prejudice is actually caused, or (c) the thing burned is a building in an inhabited place

 

IX. MALICIOUS MISCHIEF

A. ELEMENTS OF MALICIOUS MISCHIEF: (326)

  1. That the offender deliberately caused damage to the property of another.
  2. That such act does not constitute arson or other crimes involving destruction.
  3. That the act damaging another’s property be committed merely for the sake of damaging it.

Notes:

  1. Malicious mischief – willful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motive
  2. No negligence
  3. Example. Killing the cow as revenge
  4. If no malice – only civil liability
  5. Damage is also diminution in value
  6. But after damaging the thing, he used it = theft
  7. Damage is not incident of a crime (breaking windows in robbery)

B. SPECIAL CASES OF MALICIOUS MISCHIEF: (328)

  1. Obstruct performance of public functions.
  2. Using poisonous or corrosive substances.
  3. Spreading infection or contagious among cattle.
  4. Damage to property of national museum or library, archive, registry, waterworks, road, promenade, or any other thing ised in common by the public.

Note: Qualified malicious mischief – no uprising or sedition (#1)

C. ELEMENTS OF OTHER MISCHIEF: (329)

  1. Not included in 328
  1. scattering human excrement
  2. killing of cow as an act of revenge

D. ELEMENTS OF DAMAGE AND OBSTIVATION TO MEANS OF COMMUNICATION: (330)

Notes:

  1. done by damaging railways, telegraph, telephone lines, electric wires, traction cables, signal system of railways
  2. removing rails from tracks is destruction (art 324)
  3. not applicable when telegraph/phone lines don’t pertain to railways (example: for transmission of electric power/light)
  4. people killed as a result:
  5. circumstance qualifying the offense if the damage shall result in any derailment of cars, collision or other accident – a higher penalty shall be imposed
  1. murder – if derailment is means of intent to kill
  2. none – art 48

E. ELEMENTS OF DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS: (331)

F. ELEMENTS OF EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY: (332)

Persons exempt from criminal liability:

  1. Spouse, ascendants and descendants or relatives by affinity in the same line
  2. The widowed spouse with respect to the property w/c belonged to the deceased spouse before the same passed into the possession of another
  3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together

Offenses involved in the exemption:

  1. Theft
  2. Swindling
  3. Malicious mischief

Notes:

  1. Exemption is based on family relations
  2. Parties to the crime not related to the offended party still remains criminally liable
  3. Persons exempt include:
    1. stepfather/mother (ascendants by affinity)
    2. adopted children (descendants)
    3. concubine/paramour (spouse)
    4. common law spouse (propert is part of their earnings)

 

Reference:

Criminal Law Book 2 Reviewer

Ateneo Central Bar Operations 2001

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About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on January 25, 2012, in Criminal Law and tagged . Bookmark the permalink. 1 Comment.

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