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Art. 315. Swindling (estafa). Any person who shall defraud

another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its maximum
period to prision mayor in its minimum period, if the amount
of the fraud is over 12,000 pesos but does not exceed 22,000
pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not
exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed under the
provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.
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2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneously with the
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency,
business or imaginary transactions, or by means of other
similar deceits.

FRANCO VS PEOPLE GRN 171328 02-16-2011

Conspiracy must be Shown as Clearly as the
Commission of the Offense[10]
There is conspiracy when two or more persons agree to commit a felony and decide to
commit it.[11] Conspiracy must be proven on the same quantum of evidence as the felony
subject of the agreement of the parties. [It] may be proved by direct or circumstantial
evidence consisting of acts, words, or conduct of the alleged conspirators [prior to],
during and after the commission of the felony to achieve a common design or purpose.[12]
Estafa by Means of Deceit
Article 315, par. 2(a) of the Revised Penal Code penalizes fraud or deceit when
committed as follows:
2. by means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of fraud:

by using fictitious name, or actions, falsely pretending to
possess power, influence, qualification, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits.

The elements of the crime of estafa under the

foregoing provision are: (1) there must be a false pretense,
fraudulent acts or fraudulent means; (2) such false pretense,
fraudulent act or fraudulent means must be made or executed
prior to or simultaneously with the commission of the fraud; (3)
the offended party must have relied on the false pretense,
fraudulent act or fraudulent means and was thus induced to
part with his money or property; and (4) as a result thereof, the
offended party suffered damage.[13]

There must be a formal demand on the offender to comply with his obligation before he can
be charged with estafa.

The following are the exceptions:


When the offenders obligation to comply is subject to a period;


When the accused cannot be located despite due diligence.

There can be no estafa without a previous demand. Demand may be made in whatever
form. The law does not require a demand as a condition precedent to the existence of the
crime of embezzlement. It so happens only that failure to account, upon demand for funds
or property held in trust, is circumstantial evidence of misappropriation. The same however,
be established in the case at bar. (Tubb v. People, G.R. No. L-9811, 22 April 1957)

The word "Demand" need not be used to show that demand had, indeed, been made upon
the person charged with the offense. A query as to the whereabouts of the money is
tantamount to a demand. (Barrameda v. Court of Appeals, 313 SCRA 477)

No specific type of proof is required to show that there was demand. Demand need not even
be formal; it may be verbal. (Lee v. People, G.R. No. 157781, 11 April 2005)

In a prosecution for estafa, demand is not necessary where there is evidence of

misappropriation or conversion. (Sy v. People, G.R. No. 85785, 24 April 1989)

The consummation of the crime of [estafa] does not depend on the fact that a request for
the return of the money is first made and refused in order that the author of the crime
should comply with the obligation to return the sum misapplied. The appropriation or
conversion of money received to the prejudice of the owner thereof [is] the sole essential

[fact] which constitute the crime of [estafa], and thereupon the author thereof incurs the
penalty imposed by the [RPC]. (Salazar v. People, 439 Phil. 762)

Even if demand is not required by law, it is necessary to prove misappropriation. Failure to

account, upon demand, is circumstantial evidence of misappropriation. (Tan v. People,
G.R. No. 153460, 29 January 2007)

What are the elements of Estafa by means of deceit, under Article 315, par. 2 of
the Revised Penal Code?
The elements of Estafa by means of deceit are as follows:


That there must be false pretenses, fraudulent act or fraudulent means;

(b) That such pretenses, fraudulent act or fraudulent means must be made or executed
prior to or simultaneously with the commission of the fraud;
(c) That the offended party must have relied on the false pretense, fraudulent act or
fraudulent means, that is, he was induced to part with his money or property because of
false pretense, fraudulent act, or fraudulent means;

That as a result thereof, the offended party suffered damage.

As a general rule, in order to constitute deceit, there must be a false representation as a

matter of fact, a positive assertion of falsehood. (People vs. Manahan, CA- G.R. No.
19602-R, 20 May 1958)

It might also consist in a fraudulent misrepresentation or contrivance by which one man

deceives another who has no means of detecting the fraud to the injury of another. (People
vs. Babel, 10 CAR 133)

There is no deceit if the complainant was aware if the fictitious nature of the pretense.

One of the elements of estafa is that The false pretense or fraudulent act must be
committed prior to or simultaneously with the commission of the fraud. If deceit was not
present or occurred after the commission of the fraud, there is no estafa. Likewise also, if
the deceit was not the motivating factor for the offended party to get involved in a
transaction with the offending party.

No. Fraud is an element of Estafa. Its absence is fatal to the prosecution of the case. When
the allegation of deceit has not been proven, there is no Estafa. (Candido dela Cruz, CA
37 O.G. 1958)




A. This refers to those who actually and directly take part in the execution of the act.
In all crimes there must always be those who actually perform the act which brings
about the crime. They may be only one person or more. Whenever there are two or
more involved in a crime, it becomes necessary to find out those who actually
executed the act so that all may be held equally liable.

B. To hold two or more persons as principals by direct participation, it must be shown

that there exists a conspiracy between and among them. This is not the conspiracy
punished as a crime but the conspiracy as a mode or manner of incurring criminally
or that legal relationship whereby, in the eyes of the law, it may be said that the act of
any one is the act of all.

II. For conspiracy to exist, there be an intentional felony, not a culpable felony, and it
must be proved that all those to be considered as PDPs performed the following:

A. ( Unity of Intention) They participated, agreed, or concurred in the criminal design,

intent or purposes or resolution.

1. This participation may be prior to the actual execution of the acts which produced
the crime ( Anterior Conspiracy ) or it may be at the very moment the acts are
actually being executed and carried out ( Instant Conspiracy).
2. Hence it is not necessary to prove that before the commission of the crime, the
several accused actually came and met together to plan or discuss the commission
of the crime.

3. Spontaneous agreement or active cooperation by all perpetrators at the moment

of the commission of the crime is sufficient to create a joint criminal responsibility

( Sim Jr. vs. CA, 428 SCRA 459)

B. (Unity of Action ). All participated in the execution or carrying out of the common
intent, design, purpose or objective by acts intended to bring about the common

1. Each must have performed an act, no matter how small or insignificant so long as
it was intended to contribute to the realization of the crime conspired upon. This
requires that the principal by direct participation must be at the crime scene, except
in the following instances:

a). When he is the mastermind

b). When he orchestrates or directs the actions of the others from some other place
c). His participation or contribution was already accomplished prior to the actual
carrying out of the crime conspired such: his role was to conduct surveillance or to
obtain data or information about the place or the victims; to purchase the tools or
weapons, or the get away vehicle, or to find a safe house
d). His role/participation is to be executed simultaneously but elsewhere, such as by
crating a diversion or in setting up a blocking force
e). His role/participation is after the execution of the main acts such as guarding the
victim; looking for a buyer of the loot; laundering the proceeds of the crime

III. Participation in both ( Intention and Action) is necessary because:

A. Mere knowledge, acquiescence or agreement to cooperate, is not enough to

constitute one as a party to a conspiracy, absent any active participation in the
commission of the crime, with a view to the furtherance of the criminal design and
purpose. Conspiracy transcends companionship

B. He who commits the same or similar acts on the victim but is a stranger to the
conspiracy is separately liable. Simultaneous acts by several persons do not
automatically give rise to conspiracy.

C. Examples:
1. X joined in the planning of the crime but was unable to join his companions on the
day of the crime because he was hospitalized. He is not liable.
2. X is the common enemy of A and B who are strangers to one another. Both A and
B chanced upon X. A stabbed X while B shot him. A and B will have individual

D. Exception: When a person joins a conspiracy after its formation, he thereby

adopts the previous acts of the conspirators which are admissible against him. This
is under the Principle of Conspiracy by Adoption.

IV. Proof of Conspiracy

A. Direct proof of conspiracy is not necessary. The existence thereof maybe inferred
under the Doctrine of Implied Conspiracy which directs that if two or more persons:

(i). Aimed by their acts towards the accomplishment of the same unlawful object
(ii). Each doing a part so that their acts, though apparently independent, were in fact
connected and cooperative
(iii). Indicating a closeness of personal association and a concurrence of sentiment
(iv).A conspiracy maybe inferred though no actual meeting among them to concert is

V. Effect of Conspiracy. There will be a joint or common or collective criminal liability,

otherwise each will be liable only to the extent of the act done by him.

VI. For what crime will the co-conspirators be liable?

A. For the crime actually committed if it was the crime agreed upon
B. For any other crime even if not agreed upon, provided it was the direct, natural,
logical consequence of, or related to, or was necessary to effect, the crime agreed
upon. Otherwise only the person who committed the different crime will be held

VII. When is a co-conspirator freed from liability?

A. Only if he has performed an overt act either to:

1. Disassociate or detach himself from the plan
2. Prevent the commission of the second or different or related crime

B. Likewise, if for any reason not attributable to the law enforcement agents, he was
not able to proceed to the crime scene and/or execute an act to help realize the
common objective, then he can not be held liable as a co-conspirator. Thus he is not
liable if he got sick, overslept, or forgot about it, but not when law agents took him
into custody to prevent him from doing his part of the agreement.

Thus in Robbery with Homicide, all who conspired in the robbery will be liable for the
homicide unless one of the conspirators proved he tried to prevent the homicide.


I. Concept: Those who induce (PDP) to commit a crime either by: (a) force (b).

II. The use of force involves the application of either:

A. Active force or material force upon the person of the PDP, resulting to serious
bodily injury, to such a degree that the PDP is left with no choice but to do as
ordered or
B. Instilling fear of the commission or infliction of an equal or greater injury or evil
either to the PDP or the latters family or even to a third person.

The PDP may set up the use of force as an exempting circumstance.

III. Inducement connotes that there was an agreement or conspiracy between the PI
and the PDP. The inducement assumes several forms such as the following:

A. By the giving of a price, promise or reward. This must be made with the intention
of procuring the commission of the crime and not as an expression of appreciation.
The same must be the sole reason for the commission of the crime.
This also serves as an aggravating circumstance which will affect both the giver and
the recipient.

B. By giving Words of Command.

1. The utterer must have an ascendancy or influence over the PDP, or is one entitled
to obedience from the PDP
2. The words must be so direct, so efficacious, so powerful and persistently made, as
to amount to physical or moral force
3. Must be made directly with the intention of procuring the commission of the crime
and is therefore the determining cause and it thus precedes the crime

4. They do not include thoughtless or imprudent utterances. Mere advises, counsel

or suggestions or exhortations.

C. By the use of Inciting Words. These are words uttered while a crime is going on
by one who is present and are directed to a participant in the crime, such as the
words sige pa, kick him, kill him, bugbugin mo. The following must however be
1. Whether the words were uttered by one with moral ascendancy over the accused
and to whom obedience is due from the accused
2. Whether the utterances were the result of the excitement generated by the
situation or that the utterer was caught up in his own excitement or emotion, or
whether the uttrerer was coolly and deliberately uttering such words with the intention
that they be acted upon
3. Whether the crime would be committed anyway even without the utterances, or if
such utterances were the moving cause of the crime

D. By earnest and persistent solicitation or cajoling amounting to moral force by one

with authority or influence over the accused


I. Refers to those who cooperate in the commission of the offense by another

act without which it would not have been accomplished. There must be a
community of design or common purpose between the PIC and the PDP, but
not a conspiracy. The PIC knows or is aware of the intention or purpose of the
PDP and he cooperates or concurs in its realization by performing an act
without which the offense would not have been accomplished.

II. The cooperation may be:

A. By moral cooperation such as (i) providing technical advise, expertise on

how to execute the crime such as on how to avoid security arrangements (ii)
revealing the combination numbers of a bank vault, or the location of warning
devices (iii) revealing the whereabouts of a victim:

B. By Physical external acts such as:

1. Providing the weapon or tools, or the key to open the building
2. Providing the mode of transportation to enable the accused to reach the
place of the scene of the crime
3. Dragging he victim to the place of execution
4. Leaving open the doors, giving the key to open the building
5. Holding on to a victim to preventing him victim from resisting or drawing a
6. Holding back a person from going to the assistance of a victim

C. Through Negligent Acts such as

1. The bank employee who failed to ascertain the identity of the presenter of a
check and who initials it
2. The guarantor who failed to ascertain the identity of the holder of a check
presented for encashment
3. A security guard whose laxity enabled a killer to enter the compound and kill
an occupant therein.