Crimes against property1. Robbery with violence against or intimidation of persons (Art. 294);2. Attempted and frustrated robbery committed under certain circumstances (Art. 297);3. Execution of deeds by means of violence or intimidation (Art. 298);4. Robbery in an inhabited house or public building or edifice devoted to worship (Art. 299);5. Robbery in an inhabited place or in a private building (Art. 302);6. Possession of picklocks or similar tools (Art. 304);7. Brigandage (Art. 306);8. Aiding and abetting a band of brigands (Art. 307);9. Theft (Art. 308);10. Qualified theft (Art. 310);11. Theft of the property of the National Library and National Museum (Art. 311);12. Occupation of real property or usurpation of real rights in property (Art. 312);13. Altering boundaries or landmarks (Art. 313);14. Fraudulent insolvency (Art. 314);15. Swindling (Art. 315);16. Other forms of swindling (Art. 316);17. Swindling a minor (Art. 317);18. Other deceits (Art. 318);19. Removal, sale or pledge of mortgaged property (Art. 319);20. Destructive arson (Art. 320);21. Other forms of arson (Art. 321);22. Arson of property of small value (Art. 323);23. Crimes involving destruction (Art. 324);24. Burning one’s own property as means to commit arson (Art. 325);25. Setting fire to property exclusively owned by the offender (Art. 326);26. Malicious mischief (Art. 327);27. Special case of malicious mischief (Art. 328);28. Damage and obstruction to means of communication (Art. 330);29. Destroying or damaging statues, public monuments or paintings (Art. 331).

Article 293ROBBERY IN GENERAL

ELEMENTS: 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:

ROBBERY – This is the taking or personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything.

Two kinds of robbery: 1) robbery with violence or intimidation and 2) robbery with force upon things.

Belonging to another – person from whom property was taken need not be the owner, legal possession is sufficient

* The property must be personal property and cannot refer to real property.

* 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

* The owner of the property may be held liable for robbery where he forcible takes the property from the possession of the bailee with intent to charge the latter with its value. (U. S. vs. Albao, 29 Phil. 86)

* In the absence of any explanation as to how one has come into possession of stolen effects belonging to a person wounded and treacherously killed, the possessor must necessarily be considered the author of the aggression and death of the victim as well as of the robbery committed. (People vs. Rapuela. G. R. NO. 85178, March 15, 1990)

Suppose the property is res nullus or without an owner?

The crime of robbery or theft cannot be committed if the property is without an owner for the simple reason that no one can be prejudiced by the taking of the personal property, even though the intent to gain is present in the taking.

Taking of personal property – must be unlawful; if given in trust – estafa

* The taking of the property must be coupled with the intention to permanently deprive the offended party of his possession of the things taken . (People vs. Kho Choc, C. A., 50 O. G. 1667)

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

As to robbery with force upon things – thing must be taken out of the building

Intent to gain – presumed from unlawful taking

* Intent to gain may be presumed from the unlawful taking of another’s property. However, when one takes a property under the claim of ownership or title, the taking is not considered to be with intent to gain. (U. S. vs. Manluco, et al., 28 Phil. 360)

* When there’s no intent to gain but there is violence in the taking – grave coercion

* Violence or intimidation must be against the person of the offended party, not upon the thingGeneral rule: violence or intimidation must be present before the “taking” is completeExcept: 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

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

* The other kind of robbery is one that is committed with the use of force upon anything in order to take with intent to gain, the personal property of another. The use of force here must refer to the force employed upon things in order to gain entrance into a building or a house. (People vs. Adorno, C. A. 40 O. G. 567)

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

Robbery and Theft, compared. 1. Both robbery and theft involve unlawful taking or asportation as an element;

2. Both involve personal property belonging to another;

3. In both crimes, the taking is done with intent to gain;

4. In robbery, the taking is done either with the use of violence or intimidation of person or the employment of force upon things; whereas in theft, the taking is done simply without the knowledge and consent of the owner.

Robbery with violence

Grave threats Grave coercion

Intent to gain No intent to gain NoneImmediate 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 BriberyX 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 money thru force or intimidation Giving of money is in one sense voluntary

Neither Transaction is voluntary and mutualEx. defendant demands payment of P2.00 with threats of arrest and prosecution, therefore, robbery because (a) intent to gain and (b) immediate harm

ANTI – CARNAPPING ACT ( RA # 6539 )

“Carnapping” is the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things.

Any vehicle which is motorized using the streets which are public, not exclusively for private use is covered within the concept of motor vehicle under the Anti-Carnapping Law. A tricycle which is not included in the enumeration of exempted vehicles under the Carnapping Law is deemed to be motor vehicle as defined in the law, the stealing of which comes within its penal sanction.

If the vehicle uses the streets with or without the required license, the same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of street or highway the same is used but by the nature of the vehicle itself and the case to which it is devoted. (Izon, et al., vs. People, 107 SCRA 118)Article 294ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON

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:

SPECIAL COMPLEX CRIMES (specific penalties prescribed)

ROBBERY WITH HOMICIDE – a. if original design is robbery and homicide is committed – robbery with homicide even

though homicide precedes the robbery by an appreciable time.

b. If original design is not robbery but robbery was committed after homicide as an afterthought – 2 separate offenses.

c. Still robbery with homicide – if the person killed was an innocent bystander and not the person robbed and if death supervened by mere accident.

* The original criminal design of the culprit must be Robbery and the Homicide is perpetrated with a view to the consummation of the Robbery.

* If death results or even accompanies a robbery, the crime will be robbery with homicide provided that the robbery is consummated.

* As long as the criminal objective or plan is to rob, whether the killing committed by reason or on occasion thereof is intentional or accidental, the crime is Robbery with Homicide. ( Pp vs. Pecato, 151 scra 14 ) As long as there was killing when Robbery was taking place, Robbery with Homicide was committed, the killing occurring on the occasion thereof.

Problem:A, B, C and D robbed a bank. When they were about to flee,

policemen came, and they traded shots with them. If one of the policemen was killed, the offense is Robbery with Homicide. If one of the robbers was the one killed, the remaining robbers shall be charged also with Robbery with Homicide. If a bank employee was the one killed either by the robbers or by the policemen in the course of the latter’s action of arresting or trying to arrest the robbers, the crime is still Robbery with Homicide.

* As long as the criminal intent is to rob, that is, robbery was the real motive, the offense would still be classified as Robbery with Homicide even if the killing preceded or was done ahead of the robbing. (People vs. Tolentino, 165 SCRA 490).

* Thus, as a member of the “agaw-armas” gang whose plan and design is to rob a policeman of his service revolver, but because he fears that said policeman may beat him to the draw, first shoots the policeman fatally and only after when the latter lies dead, does he get the gun – the crime is still considered Robbery with Homicide.

* This is a crime against property, and therefore, you contend not with the killing but with the robbery.

* As long as there is only one (1) robbery, regardless of the persons killed, the crime will only be one (1) count of robbery with homicide. The fact that there are multiple killings committed in the course of the robbery will be considered only as aggravating so as to call for the imposition of the maximum penalty prescribed by law.

* If, on the occasion or by reason of the robbery, somebody is killed, and there are also physical injuries inflicted by reason or on the occasion of the robbery, don’t think that those who sustained physical injuries may separately prosecute the offender for physical injuries. Those physical injuries are only considered aggravating circumstances in the crime of robbery with homicide.

* This is not a complex crime as understood under Article 48, but a single indivisible crime. This is a special complex crime because the specific penalty is provided in the law.

* The term “homicide” is used in the generic sense, and the complex crime therein contemplated comprehends not only robbery with homicide in its restricted sense, but also with robbery with murder. So, any kind of killing by reason of or on the occasion of a robbery will bring about the crime of robbery

with homicide even if the person killed is less than three days old, or even if the person killed is the mother or father of the killer, or even if on such robbery the person killed was done by treachery or any of the qualifying circumstances. In short, there is no crime of robbery with parricide, robbery with murder, robbery with infanticide – any and all forms of killing is referred to as homicide. Illustration:

The robbers enter the house. In entering through the window, one of the robbers stepped on a child less than three days old. The crime is not robbery with infanticide because there is no such crime. The word homicide as used in defining robbery with homicide is used in the generic sense. It refers to any kind of death.

* Although it is a crime against property and treachery is an aggravating circumstance that applies only to crimes against persons, if the killing in a robbery is committed with treachery, the treachery will be considered a generic aggravating circumstance because of the homicide.

* When two or more persons are killed during the robbery, such should be appreciated as an aggravating circumstance.

* As long as there is only one robbery, regardless of the persons killed, you only have one crime of robbery with homicide. Note, however, that “one robbery” does not mean there is only one taking.

Illustration:

Robbers decided to commit robbery in a house, which turned out to be a boarding house. Thus, there were different boarders who were offended parties in the robbery. There is only one count of robbery. If there were killings done to different boarders during the robbery being committed in a boarder’s quarter, do not consider that as separate counts of robbery with homicide because when robbers decide to commit robbery in a certain house, they are only impelled by one criminal intent to rob and there will only be one case of robbery. If there were homicide or death committed, that would only be part of a single robbery. That there were several killings done would only aggravate the commission of the crime of robbery with homicide.

* In People v. Quiñones, 183 SCRA 747, it was held that there is no crime of robbery with multiple homicides. The charge should be for robbery with homicide only because the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294. All the killings are merged in the composite integrated whole that is robbery with homicide so long as the killings were by reason or on occasion of the robbery.

* In another case, a band of robbers entered a compound, which is actually a sugar mill. Within the compound, there were quarters of the laborers. They robbed each of the quarters. The Supreme Court held that there was only one count of robbery because when they decided and determined to rob the compound, they were only impelled by one criminal intent to rob.

* With more reason, therefore, if in a robbery, the offender took away property belonging to different owners, as long as the taking was done at one time, and in one place, impelled by the same criminal intent to gain, there would only be one count of robbery.

* In robbery with homicide as a single indivisible offense, it is immaterial who gets killed. Even though the killing may have resulted from negligence, you will still designate the crime as robbery with homicide.Illustration:

On the occasion of a robbery, one of the offenders placed his firearm on the table. While they were ransacking the place, one of the robbers bumped the table. As a result, the firearm fell on the floor and discharged. One of the robbers was the one killed. Even though the placing of the firearm on the table where there is no safety precaution taken may be considered as one of negligence or imprudence, you do

not separate the homicide as one of the product of criminal negligence. It will still be robbery with homicide, whether the person killed is connected with the robbery or not. He need not also be in the place of the robbery.

* In one case, in the course of the struggle in a house where the robbery was being committed, the owner of the place tried to wrest the arm of the robber. A person several meters away was the one who got killed. The crime was held to be robbery with homicide.

* Note that the person killed need not be one who is identified with the owner of the place where the robbery is committed or one who is a stranger to the robbers. It is enough that the homicide was committed by reason of the robbery or on the occasion thereof.

Illustration:

There are two robbers who broke into a house and carried away some valuables. After they left such house these two robbers decided to cut or divide the loot already so that they can go of them. So while they are dividing the loot the other robber noticed that the one doing the division is trying to cheat him and so he immediately boxed him. Now this robber who was boxed then pulled out his gun and fired at the other one killing the latter. Would that bring about the crime of robbery with homicide? Yes. Even if the robbery was already consummated, the killing was still by reason of the robbery because they quarreled in dividing the loot that is the subject of the robbery.

* In People v. Domingo, 184 SCRA 409, on the occasion of the robbery, the storeowner, a septuagenarian, suffered a stroke due to the extreme fear which directly caused his death when the robbers pointed their guns at him. It was held that the crime committed was robbery with homicide. It is immaterial that death supervened as a mere accident as long as the homicide was produced by reason or on the occasion of the robbery, because it is only the result which matters, without reference to the circumstances or causes or persons intervening in the commission of the crime which must be considered.

* Remember also that intent to rob must be proved. But there must be an allegation as to the robbery not only as to the intention to rob.

* If the motive is to kill and the taking is committed thereafter, the crimes committed are homicide and theft. If the primordial intent of the offender is to kill and not to rob but after the killing of the victims a robbery was committed, then there are will be two separate crimes.

Illustration:

If a person had an enemy and killed him and after killing him, saw that he had a beautiful ring and took this, the crime would be not robbery with homicide because the primary criminal intent is to kill. So, there will be two crimes: one for the killing and one for the taking of the property after the victim was killed. Now this would bring about the crime of theft and it could not be robbery anymore because the person is already dead.

* For robbery with homicide to exist, homicide must be committed by reason or on the occasion of the robbery, that is, the homicide must be committed “in the course or because of the robbery.” Robbery and homicide are separate offenses when the homicide is not committed “on the occasion” or “by reason” of the robbery.

* Where the victims were killed, not for the purpose of committing robbery, and the idea of taking the money and other personal property of the victims was conceived by the culprits only after the killing, it was held in People v. Domingo, 184 SCRA 409, that the culprits committed two separate crimes of homicide or murder (qualified by abuse of superior strength) and theft.

* The victims were killed first then their money was taken the money from their dead bodies. This is robbery with homicide. It is important here that the intent to commit robbery must precede the taking of human life in robbery with homicide. The offender must have the intent to take personal property before the killing.

* It must be conclusively shown that the homicide was committed for the purpose of robbing the victim. In People v. Hernandez, appellants had not thought of robbery prior to the killing. The thought of taking the victim’s wristwatch was conceived only after the killing and throwing of the victim in the canal. Appellants were convicted of two separate crimes of homicide and theft as there is absent direct relation and intimate connection between the robbery and the killing.

* However, if the elements of the crime of robbery with violence employed against persons, fail to meet the requirements of Article 294, as when the robbery resulted only in the commission of frustrated homicide, then Article 294 should be ignored and the general provision of the law should be applied, such as the provision of Article 48.

* If robbery is proved but the homicide is not proven, the accused should be convicted of robbery only and the penalty shall not be based under paragraph 1 but on paragraph 5 of the same article, since only intimidation or violence was employed and it did not result in any of the situations mentioned in paragraphs 1 to 4.

* If the robbery is not proven but the homicide is established, then the accused should be held liable only for homicide and the penalty shall be taken from Article 249, which deals with crimes against property, so, if several homicides are alleged in the information for robbery with homicide, and all of these homicides are proven beyond reasonable doubt, the court will impose a separate penalty for each of the homicide that is established by the evidence. (People vs. Barruga, 61 Phil. 318)

* It is important to remember that the special complex crime of robbery with homicide is committed, where there exists a direct relation, an intimate connection between the robbery and the killing, irrespective of whether the killing be prior or subsequent to the robbery; or whether both crimes were committed at the same time. (People vs. Puesca, 87 SCRA 130)

* Robbery with homicide need not be committed inside a building. What constitutes the crime as robbery with homicide is the killing of a person on the occasion or by reason of the taking of personal property belonging to another with intent to gain.

* The killing on the occasion of robbery may come in different forms. 1) It may be done by the offender for the purpose of suppressing evidence, like when the victim is killed because he happens to know the person of the offender; or 2) when the killing is done in order to prevent or remove any opposition which the victim may put up as regards the taking of his personal belongings. 3) The killing may also result from the offender’s defense of his possession of the stolen goods. 4) Or it may be resorted to by the offender to facilitate his escape after the commission of the robbery.

* In People vs. Macalalad, 9 Phil. (1907), the Supreme Court ruled that whenever homicide is committed as a consequence or on the occasion of a robbery, all those

who took part in the commission of the robbery are guilty as principals in the crime of robbery with homicide unless it appears that the principal claiming innocence in the killing, has attempted or tried to prevent the killing. The burden of proving the attempt to prevent others from killing the victim rests on the co-principal of the crime who makes such assertion or claim.

* The same principle has been applied by the Supreme Court where the crime committed is robbery accompanied by rape. The criminal liability of the person or persons who took no part in the commission of the rape which accompanied the robbery is the same as the robber or robbers who actually committed the rape unless the robber or robbers claiming innocence of the rape had endeavored to prevent the commission of the rape. (People vs. Tiongco, 37 Phil. 95)

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

* Article 48 is not applicable to this crime because robbery is not a necessary means for the commission of rape. Neither is rape necessary to commit robbery.

* This is another form of violence or intimidation upon person. The rape accompanies the robbery. In this case where rape and not homicide is committed, there is only a crime of robbery with rape if both the robbery and the rape are consummated. If during the robbery, attempted rape were committed, the crimes would be separate, that is, one for robbery and one for the attempted rape.

* The rape committed on the occasion of the robbery is not considered a private crime because the crime is robbery, which is a crime against property. So, even though the robber may have married the woman raped, the crime remains robbery with rape. The rape is not erased. This is because the crime is against property which is a single indivisible offense.

* If the woman, who was raped on the occasion of the robbery, pardoned the rapist who is one of the robbers, that would not erase the crime of rape. The offender would still be prosecuted for the crime of robbery with rape, as long as the rape is consummated.

* Pardon by the offended party will not alter the criminal liability of the offender because in robbery with rape, the crime committed is not a crime against chastity but a crime against property. Even under the present amendment which classifies rape as a crime against person, the change has no legal effect on the provision of Article 294 since the special complex crime of robbery with rape is considered, by express provision of law, a single crime notwithstanding that there is a plurality of crimes committed.

* If the rape is attempted, since it will be a separate charge and the offended woman pardoned the offender, that would bring about a bar to the prosecution of the attempted rape. If the offender married the offended woman, that would extinguish the criminal liability because the rape is the subject of a separate prosecution.

* The intention must be to commit robbery and even if the rape is committed before the robbery, robbery with rape is committed. But if the accused tried to rape the offended party and because of resistance, he failed to consummate the act, and then he snatched the vanity case from her hands when she ran away, two crimes are committed: attempted rape and theft.

* There is no complex crime under Article 48 because a single act is not committed and attempted rape is not a means necessary to commit theft and vice-versa.

* The Revised Penal Code does not differentiate whether rape was committed before, during or after the robbery. It is enough that the robbery accompanied the rape. Robbery must not be a mere accident or afterthought.

* If the two (2) crimes were separated both by time and place, there is no complex crime of Robbery with Rape. Thus, when complainant went out of her room about 1:30 a.m. to urinate, one of the accused grabbed her, poked an icepick on her neck , and dragged her out of the house and was made to board a taxi; and before boarding, she saw the two (2) companions of the man carrying her typewriter and betamax and then joining them in the taxi, and that after alighting from the taxi, the two (2) companions left her, and the man who had grabbed her brought her to a motel, where by means of force and intimidation he was able to have sex with her, the crimes committed are Robbery and Forcible Abduction with Rape. The Rape committed cannot be complexed with Robbery. (People vs. Angeles, 222 SCRA 451).

* In People v. Flores, 195 SCRA 295, although the offenders plan was to get the victim’s money, rape her and kill her, but in the actual execution of the crime, the thoughts of depriving the victim of her valuables was relegated to the background and the offender’s prurient desires surfaced. They persisted in satisfying their lust. They would have forgotten about their intent to rob if not for the accidental touching of the victim’s ring and wristwatch. The taking of the victim’s valuables turned out to be an afterthought. It was held that two distinct crimes were committed: rape with homicide and theft.

* In People v. Dinola, 183 SCRA 493, it was held that if the original criminal design of the accused was to commit rape and after committing the rape, the accused committed robbery because the opportunity presented itself, two distinct crimes – rape and robbery were committed – not robbery with rape. In the latter, the criminal intent to gain must precede the intent to rape.

* If rape was the primary objective of the accused and the taking of her jewelries was not done with intent to gain but as a token of her supposed consent to the sexual intercourse, the accused is guilty of two distinct crimes: rape and unjust vexation. (People vs. Villarino, C. A. G. R. No. 6342-R, Nov. 26, 1951)

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

* In the taking of personal property, it is necessary that violence must be employed by the offender in order that the taking may be considered as robbery. So, where the taking is without violence or intimidation and the same is complete, but the

victim pursued the offender in order to recover the personal property taken and by the reason thereof, he suffers less serious or slight physical injuries in the hands of the offender, the violence employed on the victim which resulted to his injuries will not convert the taking of his personal property to robbery. In such a case, the offender is liable for two crimes, namely, theft and less serious or slight physical injuries.

* The intimidation must be present at the time of the taking before it is completed. If the taking is completed without intimidation and it is employed by the offender only to prevent the owner from recovering his stolen property, two crimes are committed by the offender: theft and grave threat.

* If violence is employed against the offended party in order to deprive him of his personal property and the violence resulted to the infliction of less serious or slight physical injuries, the crime committed would only be robbery. Hence, there is no crime of robbery with less serious or slight injuries. (U. S. vs. Barroga, 21 Phil 161)

On ROBBERY WITH PHYSICAL INJURIES

* To be considered as such, the physical injuries must always be serious. If the physical injuries are only less serious or slight, they are absorbed in the robbery. The crime becomes merely robbery. But if the less serious physical injuries were committed after the robbery was already consummated, there would be a separate charge for the less serious physical injuries. It will only be absorbed in the robbery if it was inflicted in the course of the execution of the robbery. The same is true in the case of slight physical injuries.

Illustration:

After the robbery had been committed and the robbers were already fleeing from the house where the robbery was committed, the owner of the house chased them and the robbers fought back. If only less serious physical injuries were inflicted, there will be separate crimes: one for robbery and one for less serious physical injuries.

* But if after the robbery was committed and the robbers were already fleeing from the house where the robbery was committed, the owner or members of the family of the owner chased them, and they fought back and somebody was killed, the crime would still be robbery with homicide. But if serious physical injuries were inflicted and the serious physical injuries rendered the victim impotent or insane or the victim lost the use of any of his senses or lost a part of his body, the crime would still be robbery with serious physical injuries. The physical injuries (serious) should not be separated regardless of whether they retorted in the course of the commission of the robbery or even after the robbery was consummated.

* In Article 299, it is only when the physical injuries resulted in the deformity or incapacitated the offended party from labor for more than 30 days that the law requires such physical injuries to have been inflicted in the course of the execution of the robbery, and only upon persons who are not responsible in the commission of the robbery.

* But if the physical injuries inflicted are those falling under subdivision 1 and 2 of Article 263, even though the physical injuries were inflicted upon one of the robbers themselves, and even though it had been inflicted after the robbery was already consummated, the crime will still be robbery with serious physical injuries. There will only be one count of accusation.

Illustration:

After the robbers fled from the place where the robbery was committed, they decided to divide the spoils and in the course of the division of the spoils or the loot, they quarreled. They shot it out and one of the robbers was killed. The crime is still robbery with homicide even though one of the robbers was the one killed by one of them. If they quarreled and serious physical injuries rendered one of the robbers impotent, blind in both eyes, or got insane, or he lost the use of any of his senses, lost the use of any part of his body, the crime will still be robbery with serious physical injuries.

* If the robbers quarreled over the loot and one of the robbers hacked the other robber causing a deformity in his face, the crime will only be robbery and a separate charge for the serious physical injuries because when it is a deformity that is caused, the law requires that the deformity must have been inflicted upon one who is not a participant in the robbery. Moreover, the physical injuries which gave rise to the deformity or which incapacitated the offended party from labor for more than 30 days, must have been inflicted in the course of the execution of the robbery or while the robbery was taking place. * If it was inflicted when the thieves/robbers are already dividing the spoils, it cannot be considered as inflicted in the course of execution of the robbery and hence, it will not give rise to the crime of robbery with serious physical injuries. You only have one count of robbery and another count for the serious physical injuries inflicted.

* If, during or on the occasion or by reason of the robbery, a killing, rape or serious physical injuries took place, there will only be one crime of robbery with homicide because all of these – killing, rape, serious physical injuries -- are contemplated by law as the violence or intimidation which characterizes the taking as on of robbery. You charge the offenders of robbery with homicide. The rape or physical injuries will only be appreciated as aggravating circumstance and is not the subject of a separate prosecution. They will only call for the imposition of the penalty in the maximum period.

* If on the occasion of the robbery with homicide, robbery with force upon things was also committed, you will not have only one robbery but you will have a complex crime of robbery with homicide and robbery with force upon things (see Napolis v. CA). This is because robbery with violence or intimidation upon persons is a separate crime from robbery with force upon things.

* Robbery with homicide, robbery with intentional mutilation and robbery with rape are not qualified by band or uninhabited place. These aggravating circumstances only qualify robbery with physical injuries under subdivision 2, 3, and 4 of Article 299.

* When it is robbery with homicide, the band or uninhabited place is only a generic aggravating circumstance. It will not qualify the crime to a higher degree of penalty.

* In People v. Salvilla, it was held that if in a robbery with serious physical injuries, the offenders herded the women and children into an office and detained them to compel the offended party to come out with the money, the crime of serious illegal detention was a necessary means to facilitate the robbery; thus, the complex crimes of robbery with serious physical injuries and serious illegal detention.

* But if the victims were detained because of the timely arrival of the police, such that the offenders had no choice but to detain the victims as hostages in exchange for their safe passage, the detention is absorbed by the crime of robbery and is not a separate crime. This was the ruling in People v. Astor.

On ROBBERY WITH ARSON

* Another innovation of Republic Act No. 7659 is the composite crime of robbery with arson if arson is committed by reason of or on occasion of the robbery. The composite crime would only be committed if the primordial intent of the offender is to commit robbery and there is no killing, rape, or intentional mutilation committed by the offender during the robbery. Otherwise, the crime would be robbery with homicide, or robbery with rape, or robbery with intentional mutilation, in that order, and the arson would only be an aggravating circumstance. It is essential that robbery precedes the arson, as in the case of

rape and intentional mutilation, because the amendment included arson among the rape and intentional mutilation which have accompanied the robbery.

* Moreover, it should be noted that arson has been made a component only of robbery with violence against or intimidation of persons in said Article 294, but not of robbery by the use of force upon things in Articles 299 and 302.

* So, if the robbery was by the use of force upon things and therewith arson was committed, two distinct crimes are committed.

Article 295QUALIFIED ROBBERY WITH VIOLENCE OR INTIMIDATION

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:

a. in an uninhabited place or

b. by a band or

c. by attacking a moving train, street car, motor vehicle or airship, or

d. by entering the passenger’s compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or

e. 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

Notes:* Must be alleged in the information

* Can’t be offset by generic mitigating

* Art 295 will not apply to: robbery w/ homicide, rape or SPI under par 1 of art 263

Article 296ROBBERY BY A BAND

Notes:

BAND is defined as consisting of at least four armed malefactors organized with the intention of carrying out any unlawful design. Their participation in the commission of the crime must be actual. The offender must be principal by direct participation, so that, a principal by inducement cannot be convicted of this crime where the aggravating circumstance of band shall be appreciated against him, since the law requires as a condition to its commission the actual participation of the offender in the execution of the crime. In such a case, the conviction of a principal by inducement will only be limited to his criminal liability as a co-conspirator.

Liability for the acts of the other members of the banda. he was a member of the band

b. he was present at the commission of a robbery by that band

c. other members of the band committed an assault

d. he did not attempt to prevent the assault

Conspiracy to commit robbery with homicide – even if less than 4 armed men

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

* Even if the agreement refers only to the robbery, nonetheless, where the robbery is committed by a band and a person is killed, any member who was present at the commission of the robbery and who did not do anything to prevent the killing of the victim on the occasion of the robbery shall be held liable for the crime of robbery with homicide. (People vs. Cinco, 194 SCRA 535)

* Conspiracy is presumed when 4 or more armed persons committed robbery

* Unless the others attempted to prevent the assault – guilty of robbery by band only

* Band is a generic aggravating circumstance in the crime of robbery with homicide or rape. But in the other circumstances provided under Article 294 particularly paragraphs 3, 4 and 5, band is a special aggravating circumstance which must be alleged in the information.

* Band is a special aggravating circumstance if the robbery results in the infliction of serious physical injuries.

* The arms contemplated under this article refers to any deadly weapon and is not limited to firearms, whether long or short. Article 297ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE

Notes:* Whether robbery is attempted or frustrated, penalty is the same

* When the robbery is attempted or frustrated, Art. 294 has no application because the robbery and the homicide must be both consummated.

* Where the homicide is only attempted or frustrated, Article 297 does not apply. In the same manner, where the attempted or frustrated robbery results in the commission of serious physical injuries, Article 297 has no application. In such a case, the crime shall be treated under the provisions of Article 48 on ordinary complex crimes. Consequently, the penalty prescribed by Article 48 shall be observed.

Article 298EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION

ELEMENTS: 1. That the offender has intent to defraud another.

2. That the offender compels him to sign, execute, or deliver any public instrument or document.

3. That the compulsion is by means of violence or intimidation.

* The element of intent to gain or fraudulent intent is what distinguishes this felony from grave coercion. Although both crimes share a common element which is the compelling of any person to do something against his will, nonetheless, in coercion, the fear created in the mind of the offended party is not immediate but remote. In this type of robbery, the fear is immediate and not remote. In coercion, there is no intent to gain whereas in this form of robbery, intent to gain is an indispensable element.

Article 299ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP

ELEMENTS: 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:

a. Through an opening not intended for entrance or egress.

b. By breaking any wall, roof, or floor or breaking any door or window.

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

d. By using any fictitious name or pretending the exercise of public authority.

3. That once inside the building, the offender took personal property belonging to another with intent to gain.

Notes:* In this kind of Robbery, no violence or intimidation against persons is ever used.

* Includes dependencies (stairways, hallways, etc.)

* A small store located on the ground floor of a house is a dependency of the house, there being no partition between the store and the house and in going to the main stairway, one has to enter the store which has a door. (U.S. vs. Ventura, 39 Phil. 523).

INHABITED HOUSE – any shelter, ship or vessel constituting the dwelling of one or more person even though temporarily absent – dependencies, courts, corals, barns, etc.

* NOT INCLUDED – ORCHARD, LANDS FOR CULTIVATION.

* 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

* In the absence of evidence to show how bandits effected an entrance into the convent which they robbed, there can be no conviction under this article. The act would be treated as Theft. ( U.S. vs. Callotes, 2 PHIL 16 )

"FORCE UPON THINGS" has a technical meaning in law. Not any kind of force upon things will characterize the taking as one of robbery. The force upon things contemplated requires some element of trespass into the establishment where the robbery was committed. In other words, the offender must have entered the premises where the robbery was committed. If no entry was effected, even though force may have been employed actually in the taking of the property from within the premises, the crime will only be theft.

* The term force upon things has a legal meaning. It means the employment of force to effect entrance into the house or building by destroying the door, window, roof, wall or floor of the aforesaid house or building. In other words, the force upon things has no reference to personal property but to a house or building which is ordinarily classified as real property.

* 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

Two predicates that will give rise to the crime as robbery:

1. By mere entering alone, a robbery will be committed if any personal property is taken from within;

2. The entering will not give rise to robbery even if something is taken inside. It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or the taking of a sealed, locked receptacle to be broken outside the premises.

* If by the mere entering, that would already qualify the taking of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises. The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things.

* Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises: entering into an opening not intended for entrance or egress, under Article 299 (a).

Illustration:The entry was made through a fire escape. The fire escape was intended for egress. The entry will not characterize the taking as one of robbery because it is an opening intended for egress, although it may not be intended for entrance. If the entering were done through the window, even if the window was not broken, that would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance.

Illustration:

On a sari-sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening there. At night, a man entered through that opening without breaking the same. The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose.Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things.

* Note that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of taking the personal property from within. If those means do not come within the definition under the Revised Penal Code, the taking will only give rise to theft.

* Those means must be employed in entering. If the offender had already entered when these means were employed, anything taken inside, without breaking of any sealed or closed receptacle, will not give rise to robbery.

Illustration:

A found B inside his (A’s) house. He asked B what the latter was doping there. B claimed he is an inspector from the local city government to look after the electrical installations. At the time B was chanced upon by A, he has already entered. So anything he took inside without breaking of any sealed or closed receptacle will not give rise to robbery because the simulation of public authority was made not in order to enter but when he has already entered.

P v. Lamahang – intent to rob being present is necessary

Place: house or building; not car

PUBLIC BUILDING – every building owned, rented or used by the government (though owned by private persons) though temporarily vacant

* Not robbery – passing through open door but getting out of a window

* If accused entered the house through a door, and it was while escaping that he broke any wall, floor or window after taking personal property inside the house – there is no Robbery committed, only Theft.

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

* Breaking of the door under Article299 (b) – Originally, the interpretation was that in order that there be a breaking of the door in contemplation of law, there must be some damage to the door.

* Before, if the door was not damaged but only the lock attached to the door was broken, the taking from within is only theft. But the ruling is now abandoned because the door is considered useless without the lock. Even if it is not the door that was broken but only the lock, the breaking of the lock renders the door useless and it is therefore tantamount to the breaking of the door. Hence, the taking inside is considered robbery with force upon things.

FALSE KEYS – genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock

PICKLOCKS – specially made, adopted for commission of robbery

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

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

* Use of picklocks or false keys refers to the entering into the premises – If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken, the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance, and not to extract personal belongings from the place where it is being kept.

GEN. RULE: outside door. EXCEPTION: inside door in a separate dwelling

* If in the course of committing the robbery within the premises some interior doors are broken, the taking from inside the room where the door leads to will only give rise to theft. The breaking of doors contemplated in the law refers to the main door of the house and not the interior door.

* But if it is the door of a cabinet that is broken and the valuable inside the cabinet was taken, the breaking of the cabinet door would characterize the taking as robbery. Although that particular door is not included as part of the house, the cabinet keeps the contents thereof safe.

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

* When the robbery is committed in a house which is inhabited, or in a public building or in a place devoted to religious worship, the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things.

* If A and B told the occupant of the house that they were the nephews of the spouse of the owner of the house, and because of that, the closed door was opened, or that they were NBI agents executing a warrant of arrest, and so the occupant opened the door, any taking personal property thereat with intent to gain, would be Robbery.

Question & Answer

Certain men pretended to be from the Price Control Commission and went to a warehouse owned by a private person. They told the guard to open the warehouse purportedly to see if the private person is hoarding essential commodities there. The guard obliged. They went inside and broke in . They loaded some of the merchandise inside claiming that it is the product of hoarding and then drove away. What crime was committed?

It is only theft because the premises where the simulation of public authority was committed is not an inhabited house, not a public building, and not a place devoted to religious worship. Where the house is a private building or is uninhabited, even though there is simulation of public authority in committing the taking or even if he used a fictitious name, the crime is only theft.

ELEMENTS OF ROBBERY WITH FORCE UPON THINGS, SUBDIVISION (B) 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.

a. by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle, or

b. by taking such furniture or objects away to be broken or forced open outside the place of the robbery.

Notes:

* Entrance ( no matter how done)

* If the entering does not characterize the taking inside as one of robbery with force upon things, it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed, locked or closed receptacles or cabinet in order to get the personal belongings from within such receptacles, cabinet or place where it is kept.

* Offender may be servants or guests

* A friend who has invited in a house and who enters a room where he finds a closed cabinet where money is kept, is guilty of robbery if he forcibly opens the said cabinet and takes the money contained therein.

* When sealed box is taken out for the purpose of breaking it, no need to open – already consummated robbery

Estafa – if box is in the custody of accused

Theft – if box found outside and forced open

Article 300ROBBERY IN AN UNINHABITED PLACE AND BY A BAND

* When the robbery with force upon things is committed in an uninhabited place and by a band, the robbery becomes qualified. In the same manner, where robbery with violence against or intimidation of persons is committed by a band or in an uninhabited place, the crime becomes qualified.

* The place considered uninhabited when it is not used as a dwelling. It may refer to a building or a house which is not used as a dwelling.

* If a house is inhabited and its owners or occupants temporarily left the place to take a short vacation in another place, their casual absence will not make the place or house uninhabited. (U. S. vs. Ventura, 39 Phil. 523)

Article 301WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES

Notes:Inhabited house – Any shelter, ship, or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed.

Public building – Includes every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same.

dependencies – are all interior courts, corrals, warehouses, granaries or enclosed places:a. contiguous to the buildingb. having an interior entrance connected therewithc. which form part of the whole

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

Article 302ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING

ELEMENTS:1. That the offender entered an uninhabited place or a building which was not a dwelling house, not

a public building, or not an edifice devoted to religious worship.

2. that any of the following circumstances was present:

a. That entrance was effected through an opening not intended for entrance or egress.

b. A wall, roof, floor, or outside door or window was broken.

c. The entrance was effected through the use of false keys, picklocks or other similar tools.

d. A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken or

e. A closed or sealed receptacle was removed, even if the same be broken open elsewhere.

3. That with intent to gain the offender took therefrom personal property belonging to another.

Notes:

* Second kind of robbery with force upon things

* It must be taken note of, that the entrance by using any fictitious name or pretending the exercise of public authority is not among those mentioned in Article 302 because the place is Uninhabited and therefore without person present. Likewise, in this class of Robbery, the penalty depends on the amount taken disregarding the circumstances of whether the robbers are armed or not as in the case in Robbery in Inhabited Place.

UNINHABITED PLACE – is an uninhabited building (habitable, not any of the 3 places mentioned)

Ex. warehouse, freight car, store. Exception: pigsty

* A store may or may not be an inhabited place depending upon the circumstances of whether or not it is usually occupied by any person lodging therein at night. Although it may be used as a dwelling to sustain a conviction under Article 299, the information must allege that the same was used and occupied as a dwelling (People vs. Tubog, 49 Phil. 620), otherwise Art. 302 is applicable.

* 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

* Breaking of padlock (but not door) is only theft

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

Article 303ROBBERY OF CEREALS, FRUITS OR FIRE WOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING

* Under Article 303, if the robbery under Article 299 and 302 consists in the taking of cereals, fruits, or firewood, the penalty imposable is lower.

* The word cereals however must be understood to mean “seedlings” or “semilla.” It does not include hulled rice. It may include palay or unhulled palay.

* While the law uses the term uninhabited place, it however refers to uninhabited building and its dependencies. If the cereals, fruits or firewood were taken outside a building and its dependencies, the crime committed would only be theft even though the taking was done in an uninhabited place.

Article 304ILLEGAL POSSESSION OF PICKLOCKS OR SIMILAR TOOLS

ELEMENTS: 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

* The law also prohibits the manufacture or fabrication of such tools. If the manufacturer or maker or locksmith himself is the offender, a higher penalty is prescribed by law. Supposing that in the crime of robbery, the offender used a picklock to enter a building. Can he be charged of illegal possession of picklocks or similar tools? The answer is NO since the same possession of these tools is already absorbed in the graver crime of robbery.

Article 305FALSE KEYS

WHAT CONSTITUTES: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:

* Possession of false keys here not punishable

* If key was entrusted and used to steal, not robbery (not stolen)BRIGANDAGE

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

Article 306WHO ARE BRIGANDS

BRIGANDS – more than three armed persons forming a band

Elements of brigandage:1. There are least four armed persons;

2. They formed a band of robbers;

3. The purpose is any of the following:

a. To commit robbery in the highway;

b. To kidnap persons for the purpose of extortion or to obtain ransom; or

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

Presumption of Brigandage: a. if members of lawless band and possession of unlicensed firearms (any of them)

b. possession of any kind of arms (not just firearm)

BRIGANDAGE ROBBERY IN BANDPurposes are given Only to commit robbery, not necessarily in hi-wayMere 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

* There is no need for the band robbers to execute the object of their association in order to hold them criminally liable for the crime of brigandage.

* The primary object on the law on brigandage is to prevent the formation of bands of robbers. Hence, if the formed band commits robbery with the use of force upon persons or force upon things, their criminal liability shall be limited to the commission of such crimes.

* Likewise, if the offenders are charged with robbery but the same is not established by the evidence and what appears clear are the elements of brigandage where the allegation in the information necessarily includes such offense, the offender can be convicted of the crime of brigandage.

* It does not mean however that to constitute violation of P.D. 532, there must be a band. One or two persons can be held liable under this law if they perpetrated their acts of depredation in Philippine Highways against persons who are not pre-determined victims.

* If the agreement among more than three armed men is to commit a particular robbery, brigandage is not committed because the latter must be an agreement to commit robbery in general or indiscriminately.

Article 307AIDING AND ABETTING A BAND OF BRIGANDS

ELEMENTS: 1. That there is a band of brigands.

2. That the offender knows the band to be of brigands.

3. That the offender does any of the following acts:

a. he in any manner aids, abets or protects such band of brigands, or

b. he gives them information of the movements of the police or other peace officers of the government or

c. He acquires or receives the property taken by such brigands.

Notes:

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

> Committed by any person

> On any Phil hi-way

Distinction between brigandage under the Revised Penal Code and highway robbery/brigandage under Presidential Decree No. 532:

(1) Brigandage as a crime under the Revised Penal Code refers to the formation of a band of robbers by more than three armed persons for the purpose of committing robbery in the highway, kidnapping for purposes of extortion or ransom, or for any other purpose to be attained by force and violence. The mere forming of a band, which requires at least four armed persons, if for any of the criminal purposes stated in Article 306, gives rise to brigandage.

(2) Highway robbery/brigandage under Presidential Decree No. 532 is the seizure of any person for ransom, extortion or for any other lawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means committed by any person on any Philippine highway.

* Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on the highway and can be committed by one person alone. It is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery. A distinction should be made between highway robbery/brigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code.

* In People v. Puno, decided February 17, 1993, the trial court convicted the accused of highway robbery/ brigandage under Presidential Decree No. 532 and sentenced them to reclusion perpetua. On appeal, the Supreme Court set aside the judgment and found the accused guilty of simple robbery as punished in Article 294 (5), in relation to Article 295, and sentenced them accordingly. The Supreme Court pointed out that the purpose of brigandage “is, inter alia, indiscriminate highway robbery. And that PD 532 punishes as highway robbery or Brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a Philippine highway as defined therein, not acts committed against a predetermined or particular victim”. A single act of robbery against a particular person chosen by the offender as his specific victim, even if committed on a highway, is not highway robbery or brigandage.

* In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more than ordinary robbery committed on a highway. The purpose of brigandage is indiscriminate robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or robbery in band, if there are at least four armed participants.

* Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the penalties. It does not require at least four armed persons forming a band of robbers. It does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike the Revised Penal Code. But the essence of brigandage under the Revised Penal Code is the same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whoever they may potentially be.

THEFTArticle 308THEFT

ELEMENTS: 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 nor force upon things

c) take personal property of another

d) without the latter’s consent

The taking from an enclosed corral of a carabao belonging to another, after force is employed to destroy a part of the corral to enter the same, is considered merely as theft because corral is not a building nor a dependency of a building. (U. S. vs. Rosales, et al., 1 Phil. 300)

2. Those whoa) having found lost property

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

Notes:

* Retention of money/property found is theft. Retention is failure to return (intent to gain)

* The word “lost” is used in the generic sense. It embraces loss by stealing or any act of a person other than the owner, as well as the act of the owner, or through some casual occurrence. (People vs. Rodrigo, 16 SCRA 475)

* The felony is not limited to the actual finder. Theft of a lost property may be committed even by a person who is not the actual finder. (People vs. Avila, 44 Phil. 720)

* Knowledge of owner is not required, knowledge of loss is enough

* It is not necessary that the owner of the lost property be known to the accused. What is important is that he knows or has reason to know that the property was lost and for this fact alone, it is his duty to turn it over to the authorities. If he does otherwise, like, if he sells the thing to another, then the crime of theft is committed.

* Finder in law is liable

Hidden Treasure

Under Article 438 and 439 of the Civil Code, the finder of hidden treasure on the property of another and by chance is entitled to one-half of the treasure that he found. His duty is to tell the owner about the treasure. If he appropriates the other half pertaining to the owner of the property, he is liable for theft as to that share. (People vs. Longdew, C. A. G. R. No. 9380-R, June 4, 1953)3. Those who

a) after having maliciously damaged the property of another

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

* Theft of damaged property occurs only after the accused has committed the crime of malicious mischief. In malicious mischief, the offender destroys the property of another because of hatred, resentment or other evil motive against the owner. So, a neighbor who shoots and kills a goat which has destroyed his flower plants and thereafter slaughters and eats the meat of the wandering goat is guilty of theft.

4. Those whoa) 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:

Theft is consummated when offender is able to place the thing taken under his control and in such a situation as he could dispose of it at once (though no opportunity to dispose) i.e, the control test

* In the crime of theft, the law makes only of the term “taking” and not “taking away.” The non-inclusion of the word “away” is significant because it means that as soon as the culprit takes possession of the things taken by him, the crime of theft is already consummated since the law does not require that the thief be able to carry away the thing taken from the owner. (People vs. Jaranilla, 55 SCRA 563)

* The consummation of the crime of theft takes place upon the voluntary and malicious taking of the property belonging to another which is realized by the material occupation of the thing. The property need not be actually taken away by the thief. It is enough that he has obtained, at some particular moment, complete

control and possession of the thing desired, adverse to the right of the lawful owner. (People vs. Naval, 46 O. G. 2641)

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

* Servant using car without permission deemed qualified theft though use was temporary

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”

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

* Juridical possession of a thing is transferred to another when he receives the thing in trust or on commission or for administration, or under a quasi-contract or a contract of bailment. When possession by the offender is under any of these circumstances and he misappropriates the thing received, he cannot be held guilty of theft but of estafa because here, he has both the physical and juridical possession of the property.

* Includes electricity and gasa. inspector misreads meter to earnb. one using a jumper

Personal Property

Personal property in the crime of theft includes electric current or properties that may have no material or concrete appearance. The test is not whether the subject is corporeal or incorporeal but whether it is incapable of appropriation by another from the owner. Hence, checks, promissory notes, and any other commercial documents may be the object of theft because while they may not be of value to the accused, they are without doubt of value to the offended party. (U. S. vs. Raboy, 25 Phil. 1) In such a case, the penalty shall be based on the amount of money represented by the checks or promissory note since, while it may not of value to the thief, it is undoubtedly of value to the offended party. (People vs. Koc Song, 63 Phil. 369).

* Selling share of co-partner is not theft

The personal property must belong to another.

1. A joint owner or partner who sells the palay to other persons or a co-owner or co-heir whp appropriates the whole property cannot be guilty of theft since the property cannot be said to belong to another. (U. S. Reyes, 6 Phil. 441)

2. One who takes away the property pledged by him to another without the latter’s consent, does not commit theft for the simple reason that he is the owner of the thing taken by him. (L. B. Reyes)

* Salary must be delivered first to employee; prior to this, taking of Php is theft

* If offender claims property as his own (in good faith) – not theft (though later found to be untrue. If in bad faith – theft)

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

Gain means the acquisition of a thing useful for the purpose of life. It includes the benefit which in any other sense may be derived or expected from the act performed.

* Actual gain is not necessary (intent to gain necessary)

* Allege lack of consent in info is important

Consent as an element of the crime of theft must be in the concept of consent that is freely given and not one which is inferred from mere lack of opposition on the part of the owner.

* Where the charge of theft under the first sentence of Article 308, the information must allege lack of consent. The allegation of “lack of consent” is indispensable under the first paragraph of Article 308 since the language or epigraph of the law expressly requires that the (unlawful) taking should be done without the consent of the owner. In view of the clear text of the law, an information which does not aver “lack of consent of the owner” would render the allegation insufficient and the information may be quashed for failure to allege an essential element of the crime. (Pua Yi Kun vs. People, G. R. No. 26256, June 26, 1968)

Robbery and theft distinguished.

For robbery to exist, it is necessary that personal property be taken against the will of the owner; whereas in theft, it is sufficient that consent on the part of the owner is lacking.

Presumption:

A person found in possession of a thing taken in the recent doing of a wrongful act is the taker of the thing and the doer of the whole act.

* Possession is not limited to actual personal custody. One who deposits stolen property in a place where it cannot be found may be deemed to have such property in his possession.

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

Ortega Notes:

Fencing under Presidential Decree No. 1612 is a distinct crime from theft and robbery. If the participant who profited is being prosecuted with person who robbed, the person is prosecuted as an accessory. If he is being prosecuted separately, the person who partook of the proceeds is liable for fencing.

In People v. Judge de Guzman, it was held that fencing is not a continuing offense. Jurisdiction is with the court of the place where the personal property subject of the robbery or theft was possessed, bought, kept, or dealt with. The place where the theft or robbery was committed was inconsequential.

Since Section 5 of Presidential Decree No. 1612 expressly provides that mere possession of anything of value which has been subject of theft or robbery shall be prima facie evidence of fencing, it follows that a possessor of stolen goods is presumed to have knowledge that the goods found in his possession after the fact of theft or robbery has been established. The presumption does not offend the presumption of innocence in the fundamental law. This was the ruling in Pamintuan v. People, decided on July 11, 1994.

Burden of proof is upon fence to overcome presumption; if explanation insufficient or unsatisfactory, court will convict. This is a malum prohibitum so intent is not material. But if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling.

When there is notice to person buying, there may be fencing such as when the price is way below ordinary prices; this may serve as notice. He may be liable for fencing even if he paid the price because of the presumption.

Cattle Rustling and Qualified Theft of Large Cattle – The crime of cattle-rustling is defined and punished under Presidential Decree No. 533, the Anti-Cattle Rustling law of 1974, as the taking by any means, method or scheme, of any large cattle, with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things, so long as the taking is without the consent of the owner/breed thereof. The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner.

Since the intent to gain is not essential, the killing or destruction of large cattle, even without taking any part thereof, is not a crime of malicious mischief but cattle-rustling.

The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended Articles 309 and 310. Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle. Where the large cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is not cattle-rustling; it is qualified theft of large cattle.

Where the large cattle was received by the offender who thereafter misappropriated it, the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him. If both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under Article 315 (1b).

Presidential Decree No. 533 is not a special law in the context of Article 10 of the Revised Penal Code. It merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended Article 309 and 310. This is explicit from Section 10 of the Presidential Decree. Consequently, the trial court should not have convicted the accused of frustrated murder separately from cattle-rustling, since the former should have been absorbed by cattle-rustling as killing was a result of or on the occasion of cattle-rustling. It should only be an aggravating circumstance. But because the information did not allege the injury, the same can no longer be appreciated; the crime should, therefore be only, simple cattle-rustling. (People v. Martinada, February 13, 1991)

PENALTIES FOR QUALIFIED THEFT; (309)

* The basis of the penalty is the value of the things stolen.

* If the property has some value but is not proven with reasonable certainty, the minimum penalty shall be imposed under par. 6 of Art. 309 (People vs. Reyes, 58 Phil. 964).

* When there is no evidence as to the value of the property stolen, the court is allowed to take judicial knowledge of the value of such property. (People vs. dela Cruz, 43 O. G. 3206)

* When the resulting penalty for the accessory to the crime of theft has no medium period, the court can impose the penalty which is found favorable to the accused. (Cristobal vs. People, 84 Phil. 473).

Article 310QUALIFIED THEFT

THEFT IS QUALIFIED WHEN: 1. Committed by domestic servant, or

2. With grave abuse of confidence, or

3. Property stolen is:a. motor vehicleb. mail matterc. large cattled. coconut from plantatione. fish from fishpond or fishery, or

4. On occasion of calamities and civil disturbance.

Notes:

* When the theft is committed by a domestic servant, the offended party may either be the employer where the offender is working as a household help, or a third person as a guest in the house. The roomboy is a hotel is embraced within the term “domestic servant.”

“GRAVE ABUSE” – high degree of confidence e.g. guests

* In the case of abuse of confidence, the latter must be “grave” in order to comply with the requirement of the law because abuse of confidence is not enough . There must be an allegation in the information that there is a relation between the accused and the offended party wherein the latter confided his security as to his person, life and property to the accused with such degree of confidence and that the accused abused the same.

* Abuse of confidence is determined from the trust reposed by the offended party to the offender. It may also refer to the nature of the work of the offender which must necessarily involve trust and confidence.

* Abuse of confidence is also an element of estafa. To avoid confusion between theft with abuse of confidence (qualified theft) and estafa with abuse of confidence, where the offender misappropriates a thing after he receives it from the victim, the student must remember that in qualified theft, only the physical or material possession of the thing is transferred. If the offender acquires the juridical as well as the physical possession of the thing and he misappropriates it, the crime committed is estafa. Juridical possession of the thing is acquired when one holds the thing in trust, or on commission, or for administration or under any other obligation involving the duty to deliver or to return the thing received. If the possession of the offender is not under any of these concepts, the crime is qualified theft.

* no confidence, not qualified theft

THEFT – material possession’ ESTAFA – juridical possession

* Where only the material possession is transferred, conversion of the property gives rise to the crime of theft. Where both the material and juridical possession is transferred, misappropriation of the property would constitute estafa. When the material and juridical possession of the thing transfers ownership of the property to the possessor, any misappropriation made by the possessor will not result in the commission of any crime, either for theft of estafa.

Qualified: if done by one who has access to place where stolen property is kept e.g., guards, tellers

* novation theory applies only if there’s a relation

* industrial partner is not liable for QT (estafa)

* when accused considered the deed of sale as sham (modus) and he had intent to gain, his absconding is QT

* motor vehicle in kabit system sold to another-theft. Motor vehicle not used as PU in kabit system but under K of lease-estafa

On carnapping and theft of motor vehicle

When the subject is motor vehicle, the Theft becomes qualified. Under R.A. 6539, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its protection, any vehicle which uses the streets, with or without the required license, or any vehicle which is motorized using the streets, such as a motorized tricycle. (Izon vs. People, 107 SCRA 123)

* The taking with intent to gain of a motor vehicle belonging to another, without the latter’s consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as amended. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa.

* mail matter – private mail to be QT, Not postmaster – Art. 226

* theft of large cattle

Article 311THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM

USURPATIONArticle 312OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY

Acts punished:

1. Taking possession of any real property belonging to another by means of violence against or intimidation of persons;

2. Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.

ELEMENTS: 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.

* Since this is a crime against property, there must be intent to gain. In the absence of the intent to gain, the act may constitute Coercion.

* Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation.

* Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property. (People v. Judge Alfeche, July 23, 1992)

* The possession of the land or real rights must be done by means of violence or intimidation. So, if the evidence of the prosecution shows that the accused entered the premises by means of strategy, stealth or methods other than the employment of violence, no crime was committed by the offender. (People vs. Alfeche, Jr., 211 SCRA 770)

* Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed. There is only a single crime, but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender.

* There is no crime of threat and usurpation of real property since threat is an indispensable element of usurpation of real rights. Hence, where threats are uttered to the owner of real property by one illegally occupying it, the crime committed is not the complex crime of usurpation of real property with grave threats because making a threat is an inherent element of usurpation of real property. (Castrodes vs. Cubelo, 83 SCRA 670)

* The complainant must be the person upon whom violence was employed. If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only.

On squatting

According to the Urban Development and Housing Act, the following are squatters:

1. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway;

2. Also the persons who were awarded lots but sold or lease them out;

3. Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same.

* Note that violation of Article 312 is punishable only with fine. So, if physical injuries are inflicted on the victim due to the violence employed by the offender in the usurpation of real rights, the latter shall be punished separately for the crime of physical injuries.

* Violence employed results to the death of the offended party. When such eventuality does occur, then the crime may rightfully be denominated as usurpation

of real rights resulting to homicide, murder, parricide, or infanticide as the case may be.

Article 313ALTERING BOUNDARIES OR LANDMARKS

ELEMENTS: 1. That there be boundary marks or monuments of towns, provinces, or estates, or any other marks

intended to designate the boundaries of the same.

2. That the offender alters said boundary marks.

CULPABLE INSOLVENCY

Article 314FRAUDULENT INSOLVENCY (culpable insolvency)

ELEMENTS 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.

* To be liable for fraudulent insolvency, the disposal of the merchandise must be done with malice. The mere circumstance that a person has disposed of his merchandise by removing them from the place where they were kept would necessarily imply fraud. What is required is actual prejudice to the creditor. The intention of the accused alone is not enough. (People vs. Guzman, C. A. 40 O. G. 2655)

* The law does not require the offender to be a merchant. The law says “any person,” and this refers to anyone who becomes a debtor and performs the acts made punishable by the law.

* The property which the offender may abscond which consists of both real and personal property. (People vs. Chong Chuy Lingobo, 45 Phil. 372)

* The law on fraudulent insolvency is different from the Insolvency Law. For the Insolvency Law to apply, the criminal act must have been committed after the institution of the insolvency proceedings against the offending debtor. But under the present article, there is no requirement that the accused should be adjudged bankrupt or insolvent.

SWINDLING AND OTHER DECEITS

ESTAFA is embezzlement under common law. It is a well-known crime to lawyers and businessmen. It is a continuing crime unlike theft. Being a public crime, it can be prosecuted de officio.

Article 315A. 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

* The concept of damage under this article does not mean actual or real damage. It may consist in mere disturbance of the property rights of the offended party. However, the damage must be capable of pecuniary estimation. This requirement is important because in estafa, the penalty is dependent on the value of the property.

* Since estafa is a material crime, it can be divided into consummated, attempted or frustrated stages. In the latter case, the damage can be in the form of temporary prejudice or suffering, or inconvenience capable of pecuniary estimation.

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.

* The accused does not receive the goods but delivers a thing under an onerous obligation which is not in accordance with the substance, quantity or quality agreed upon. It is the altering of the substance, quality or quantity of the thing delivered which makes the offender liable for the crime of estafa.

* The word “onerous” means that the offended party has fully complied with his obligations to pay. So, if the thing delivered whose substance was altered, is not yet fully or partially paid, then the crime of estafa is not committed.

C. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER SUBDIVISION NO.1 PAR. (B), OF ART.3151. 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.

(The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant. [Tubb v. People, et al., 101 Phil. 114] ).

* It is necessary in this kind of estafa, for the money, goods or personal property to have been received by the offender in trust, or on commission or for administration. He must acquire both material or physical as well as juridical possession of the thing received. In these instances, the offender, who is the transferee, acquires a right over a thing which he may set up even against the owner.

* A money market transaction however partakes of the nature of a loan, and non-payment thereof would not give rise to criminal liability for Estafa through misappropriation or conversion. In money market placements, the unpaid investor should institute against the middleman or dealer, before the ordinary courts, a simple action for recovery of the amount he had invested, and if there is allegation of fraud, the proper forum would be the Securities and Exchange Commission. (Sesbreno vs. Court of Appeals, et al., 240 SCRA 606).

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:

Unfaithfulness or Abuse of Confidencea. 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

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

By misappropriating and convertinga. thing is received by offender under transactions transferring juridical possession, not

ownership

b. 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

c. same thing received must be returned otherwise estafa; sale on credit by agency when it was to be sold for cash – estafa

d. Estafa – not affected by Novation of Contract because it is a public offense

e. Novation must take place before criminal liability was incurred or perhaps prior to the filing of the criminal information in court by state prosecutors

f. 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

h. There must be prejudice to another – not necessary that offender should obtain gain

* There is no estafa through negligence. There is likewise no estafa where the accused did not personally profit or gain from the misappropriation.

i. 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!

j. Failure to account after the DEMAND is circumstantial evidence of misappropriation

k. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof

l. In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the thing to him – otherwise, Estafa

m. Servant, domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft

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

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 propertyOffender: 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.

* The element of this estafa is also abuse of confidence. The offended party leaves a blank paper with his signature to another, with specific instructions to make entries thereon according to the wishes of the offended party. But contrary to such instructions and wishes, the accused makes entries in writing which creates liabilities against the owner of the signature.

* If the unauthorized writings were done by a person other than the one to whom the owner of the signature delivered the paper in blank, and it caused damage to the offended party, the crime committed by the third party is not estafa but falsification.

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:

FALSE PRETENSES OR FRAUDULENT ACTS – executed prior to or simultaneously with delivery of the thing by the complainant

* There must be evidence that the pretense of the accused that he possesses power/influence is false

* The representation that accused possessed influence, to deceive and inveigle the complainant into parting with his money must however be false to constitute deceit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al., 265 SCRA 299).

Elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2)

Acts punished under paragraph (a)

1. Using fictitious name;

2. Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or

3. By means of other similar deceits.

* In the prosecution of estafa under Article 315, no. 2(a), it is indispensable that the element of deceit consisting in the false statement or fraudulent representation of the accused, be made prior to, before or at least simultaneously with the delivery of the thing by the offended party. The added requirement that such false statement or fraudulent representation constitutes the very motive or the only reason or cause which induces the offended party to part with the thing while they may be false representation after the delivery of the goods or the thing by the aggrieved party, such false statement or false representation, no matter how fraudulent and obnoxious it may appear, cannot serve as a basis for prosecution under this category of estafa. For the case to prosper against the accused, the prosecution must prove two indispensable elements: deceit and damage to another. (Celino vs. Court of Appeals, 163 SCRA 97)

CREDIT means the ability to buy things or merchandise on the basis of one’s character, capacity to pay or goodwill in the business community. So, if it is used to deceive another and the deception is the principal reason for the delivery of the goods which results in damage to the offended party, the crime committed is estafa. Under paragraph (b)

Altering the quality, fineness, or weight of anything pertaining to his art or business.

Under paragraph (c)

Pretending to have bribed any government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender.

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:

Note that this only applies if –

(1) The obligation is not pre-existing;

(2) The check is drawn to enter into an obligation;

(Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.)

(3) It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph

* The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document.

* The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation.

* It must not be promissory notes, or guaranties.

* good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31)

* dishonor for lack of funds - prima facie evidence of deceit or failure to make good within three days after notice of.

* If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa.

* Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.

* If check was issued in payment of pre-existing debt – no estafa

* It is therefore essential that the check be issued in payment of a simultaneous obligation. The check in question must be utilized by the offender in order to defraud the offended party. So, if the check was issued in payment of a promissory note which had matured and the check was dishonored, there is not estafa since the accused did not obtain anything by means of said check. (People vs. Canlas, O. G. 1092)

* If a bouncing check is issued to pay a pre-existing obligation, the drawer is liable under B. P. Blg. 22 which does not make any distinction as to whether a bad check is issued in payment of an obligation or to guarantee an obligation. (Que vs. People, 73217-18, Sept. 21, 1987)* Offender must be able to obtain something from the offended party by means of the check he issues and delivers

* The check must be issued in payment of an obligation. If the check was issued without any obligation or if there is lack of consideration and the check is subsequently dishonored, the crime of estafa is not committed.

* 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.

4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the 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.

3. 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

Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22:

(1) Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation.

If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22.

(2) Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy.

(3) In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial.

(4) In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is reqired.

* When is there prima facie evidence of knowledge of insufficient funds?

* There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored.Exceptions

1. When the check was presented after 90 days from date;

2. When the maker or drawer --

a. Pays the holder of the check the amount due within five banking days after receiving notice that such check has not been paid by the drawee;

b. Makes arrangements for payment in full by the drawee of such check within five banking days after notice of non-payment

* The drawee must cause to be written or stamped in plain language the reason for the dishonor.

* If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here.

* If the drawer has valid reasons for stopping payment, he cannot be held criminally liable under B.P. Blg. 22.

* The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check.

On issuance of a bouncing check

The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the Revised Penal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property.

In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done. The drawer is liable under Batas Pambansa Blg. 22.

For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice.

Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22.

* The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated.

* Each act of drawing and issuing a bouncing check constitutes a violation of B. P. Blg. 22.

* In De Villa v. CA, decided April 18, 1991, it was held that under Batas Pambansa Blg. 22, there is no distinction as to the kind of check issued. As long as it is delivered within Philippine territory, the Philippine courts have jurisdiction. Even if the check is only presented to and dishonored in a Philippine bank, Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign currency checks. Where the law makes no distinction, none should be made.

* In People v. Nitafan, it was held that as long as instrument is a check under the negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memorandum check is not a promissory note, it is a check which have the word “memo,” “mem”, “memorandum” written across the face of the check which signifies that if the holder upon maturity of the check presents the same to the drawer, it will be paid absolutely. But there is no prohibition against drawer from depositing memorandum check in a bank. * Whatever be the agreement of the parties in respect of the issuance of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where the check bounces.

* Cross checks do not make them non-negotiable and therefore they are within the coverage of B. P. Blg. 22.

* The law does not distinguish between foreign and local checks. (De Villa vs. Court of Appeals, et al., 195 SCRA 722).

* But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is because bank has been remiss in honoring agreement.

* The check must be presented for payment within a 90-day period. If presented for payment beyond the 90 day period and the drawer’s funds are insufficient to cover it, there is no Batas Pambansa Blg. 22 violation.

* Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liability should be incurred by the drawer. Circular should not be given retroactive effect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1993)

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

Acts punished under paragraph (e)

1. a. Obtaining food, refreshment, or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house;

b. Without paying therefor;

c. With intent to defraud the proprietor or manager.

2. a. Obtaining credit at any of the establishments;

b. Using false pretense;

3. a. Abandoning or surreptitiously removing any part of his baggage in the establishment;

b. After obtaining credit, food, refreshment, accommodation;

c. Without paying.

* Failure to pay food or accommodation in a hotel, restaurant or inn usually gives rise to civil liability but if the intent to defraud is clear like a surreptitious removal of baggage from the hotel, or resorting to deceitful means to evade payment, the act shall be punished criminally as Estafa.

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 - estafaUnder paragraph (b)

Resorting to some fraudulent practice to insure success in a gambling game;

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.

* In order to commit a crime, the offender must have the intention to defraud. In other words, the removal, concealment or destruction of the court record should be done with the intent to defraud the victim. This is distinguished from the crime of removal, concealment or destruction of documents under Article 226 wherein fraud is not an element of the crime, and which is committed only by public officers . What is punished under this Article is the damage to public interest.

* If the act of removing, concealing or destroying results from hatred, revenge, or other evil motive, the crime committed is malicious mischief under Article 327.

Note: No intent to defraud – destroying or removal = malicious mischiefWhen a lawyer, pretending to verify a certain pleading in a case pending before a court, borrows the folder of the case, and removes or destroys a document which constitute evidence in the said case, said lawyer is guilty of Estafa under par. 3 (c) of Article 315, RPC.

SYNDICATED ESTAFA.

A syndicate of five or more persons formed with intent to carry out an unlawful or illegal act, transaction or scheme and defraudation which results in misappropriation of money contributed by stockholders or members of rural banks, cooperatives, samahang nayon or former’s association; or funds contributed by corporations or associations for the general welfare.

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 DOCUMENTSPrivate 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.

* In Saddul Jr. v. CA, 192 SCRA 277, it was held that the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon, is a misappropriation and conversion to the prejudice of the owner. Conversion is unauthorized assumption an exercise of the right of ownership over goods and chattels belonging to another, resulting in the alteration of their condition or exclusion of the owner’s rights.

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.

Under paragraph 4 – by executing any fictitious contract to the prejudice of another

Under paragraph 5 – by accepting any compensation for services not rendered or for labor not performed

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) to 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.

* The property referred to in this article is not real property. It is limited to personal property since a minor cannot convey real property without judicial intervention. So, if what is involved is real property, the crime of swindling a minor under this article is not committed even if the offender succeeds in inducing the minor to deal with such real property since no damage or detriment is caused against the minor.

S. ELEMENTS OF OTHER DECEITS: (318)

1. not mentioned above;

2. interpretation of dreams, forecast, future-telling for profit or gain.

* The meaning of other deceits under this article has reference to a situation wherein fraud or damage is done to another by any other form of deception which is not covered by the preceding articles.

* Another form of deceit would be in the nature of interpreting dreams, or making forecasts, telling fortunes or simply by taking advantage of the credulity of the public by any other similar manner, done for profit or gain.

CHATTEL MORTGAGE

Article 319A. SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED

ELEMENTS: 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. KNOWINGLY REMOVING MORTGAGED PERSONAL PROPERTY

ELEMENTS: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.

* It would be the mortgagor who is made liable if the personal property is transferred to the prohibited place. The liability extends to third persons who shall knowingly remove the mortgaged to another city or province.

* If the chattel mortgage is not registered, there is no violation of Article 319

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:

a. explosion

b. discharge of electric current

c. inundation

d. sinking or stranding of a vessel

e. damaging the engine of the vessel

f. taking up rails from the railway track

g. destroying telegraph wires and posts or those of any other system

h. 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

Palattao notes:

Arson is defined as the intentional or malicious destruction of a property by fire. Legal effect if death results from arson.

The crime committed is still arson. Death is absorbed in the crime of arson but the penalty to be imposed ranges from reclusion perpetua to death. (Sec. 5, P.D. No. 1613)

How arson is established.

Arson is established by proving the corpus delicti, usually in the form of circumstancial evidence such as the criminal agency, meaning the substance used, like gasoline, kerosene or other form of bustible materials which caused the fire. It can also be in the form of electrical wires, mechanical, chemical or electronic contrivance designed to start a fire; ashes or traces of such objects which are found in the ruins of the burned premises.

Notes:

* If the crime of arson was employed by the offender as a means to kill the offended party, the crime committed is murder. The burning of the property as the means to kill the victim is what is contemplated by the word “fire” under Article 248 which qualifies the crime to murder. (People vs. Villarosa, 54 O. G. 3482)

* When the burning of the property was done by the offender only to cause damage but the arson resulted to death of a person, the crime committed is still arson because the death of the victim is a mere consequence and not the intention of the offender. (People vs. Paterno, 47 O. G. 4600)

* There is no special complex crime of arson with homicide. What matters in resolving cases involving intentional arson is the criminal intent of the offender.

* There is such a crime as reckless imprudence resulting in the commission of arson. When the arson results from reckless imprudence and it leads to death, serious physical injuries and damage to the property of another, the penalty to be imposed shall not be for the crime of arson under P. D. No. 1613 but rather, the penalty shall be based on Article 365 of the Revised Penal Code as a felony committed by means of culpa.

MALICIOUS MISCHIEF

Article 326MALICIOUS MISCHIEF

ELEMENTS: 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:

MALICIOUS MISCHIEF – willful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motive

* No negligence

Example. Killing the cow as revenge

* If no malice – only civil liability

Meaning of “damage” in malicious mischief. > It means not only loss but a diminution of the value of one’s property. It includes defacing, deforming or rendering it useless for the purpose for which it was made.

* But after damaging the thing, he used it = theft

* There is destruction of the property of another but there is no misappropriation. Otherwise, it would be theft if he gathers the effects of destruction.

* Damage is not incident of a crime (breaking windows in robbery)

Article 328SPECIAL CASES OF MALICIOUS MISCHIEF

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 used in common by the public.

* The cases of malicious mischief enumerated in this article are so-called qualified malicious mischief. The crime becomes qualified either because of the nature of the damage caused to obstruct a public; or because of the kind of substance used to cause the damage. The crime is still malicious mischief because the offender has no intent to gain but derives satisfaction from the act because of hate, revenge or other evil motive.

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

Article 329OTHER MISCHIEF

ELEMENTS:

1. Not included in 328a. scattering human excrementb. killing of cow as an act of revenge

* The offender is punished according to the value of the damage caused to the offended party. If the damages cannot be estimated, the minimum penalty is arresto menor or a fine of not more than 200 pesos shall be imposed on the offender.

Article 330DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION

done by damaging railways, telegraph, telephone lines, electric wires, traction cables, signal system of railways

Notes:

* removing rails from tracks is destruction (art 324)

* not applicable when telegraph/phone lines don’t pertain to railways (example: for transmission of electric power/light)

people killed as a result:a. murder – if derailment is means of intent to kill

b. none – art 48

* If the damage was intended to cause derailment only without any intention to kill, it will be a crime involving destruction under Article 324. If the derailment is intentionally done to cause the death of a person, the crime committed will be murder under Article 248.

* circumstance qualifying the offense if the damage shall result in any derailment of cars, collision or other accident – a higher penalty shall be imposed

Article 331DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS