NAVARRO JUMAMIL ESCOLIN & MARTINEZ. LAW OFFICES (NJEMLaw) 20+€ Burgundy Corporate Tower, 252 Sen, Gil Puyat Avenue, Makati City Telephone No. (02) 804-2262 “Telefax No.(02} 804-2220 Pointers in Criminal Law 8y Professor Teodoro M. Jumami 1 = a. Levying war (first mode of commiting treason) requires ‘adherence to the enemy oF the influence and! at 2Wer just lke Y Hid mode, adhering to the enemy giving aid or comfort x Nf @yMhisprision of treason ~ Offender is princiga, thus the provisions of Article “ 520 do not apply even if the one guilty i Flat tothe consprator or orintoae Tobe an accessory under Art 20, he accused must have iatice corn oe the rime or the criminal, and mere stone about te ene toss eer \ one an aoseesar. 2. Piracy is committed either on the highSéas or in Philippine waters by attacking or seizing the vessel OR ngt being a member of its complement or Passenger, shall seize the whole or part of the carag of said vessel, te quipment or personal belongings of its complement or passengers. Qualified mutiny — Whenever the crime is accompanied by rr homicide, physical injuries or rape. id thy AD i 2, Arirary detention — po egal Bound and nd Pient to deliver tothe iggy Ms 2 i authorities; if with inteh td’détivet, Unlawful 269); i with, find fae B17? and with intent tovdaliver to the authorities but (rssonably (days such 270-2 - 2 tumover, Ar 125 applies. If wth (Ban bu urlovly Been or Jr, 20 appreciate lngtn of time omCEShaGm of movornen coca te seas ‘coercion (Art. 288) Mh ef dle aipnin tne me : Be ee eee dd es Altrary dotenion is estinled @véd ihe Vctim was permitted ‘to take his meals. ‘ide of his place of detention, but was too terrorized not to return thereto ater eating (ve Oliva, Sa PMN aia 1b. Leal grounds of detention: Te commision of a xine, violent inganiy, —¢ ‘any other ailment requiring the compulsazy,confinemient of the patient ‘a hospital "4. Violation of Domicile is committed in 3 ways: OD 1. Enters a dwelling against the will of the owner, S 2. Sgarches for papers and other effects inside the dwelling without the previous consentof the owner; L. 3. Refuses 'aleave-the premises, which he surreptitiously entered after tn being required To do so. Tigre les ye 6 analy 7 alestyean ares prlilat M hy M cs eo gie, a, alae wan seco 2b reaiaae e Gcling. Legal purist b. An officer who is arméd“with’ a “search ‘warrént_may commit of domicile it hé exceeds his au ‘usos-uniecessary Cae has foer severity in executing the same (128) or makes @ search in the ofthe owner, any member of his famly, or in their defer, without the presence of two witnesses residing in the same docality (130). ge pttcls) PA 5 pert — 2) 5, Rebelion/*8 rime of lassen = SE tochange the established order. The purposé” is 10 Government the teritssy or any par theredy, ri oF the powers-6f the Chiet Executive or Legislature, fablishment ofthe rebels government (Art. 134). an armed public uprising by a suustanlialaumber of Febe's is generally required, Depriving the Judiciary-of its powers is not included, and the offense ‘may only be soditiog.(139). © Coup a stat - No need for armed gublic uprising: it rales mare on the guifiness apd stealth hecessary for seizure of power by @ more compact and Ssleleaba belonging fo he nity, ee pub aficg wtf SF wlihout gvlian support of parjcjpation yuy/| oil, teas an ETS BEDE IPE on Se 2. reason the ‘Burpoas is ( deliver tnd ver fla ach cy 6167. overthrow the government under the decion of @ for power (art TH4r As © of assemblage for tal purpose, wthout an ame publ upeaet ie eile 1-8. Seddon (189) competes ¢ mass movement or scton seeking to revert or det goverment ore enn tech i rds a polical communty or socal Gass (Ar 198) Tare pa Sea oe ne Ange Mio 8 Tumultuous disturbance is a social or political gan of a relatively lesser UACESE ” magnitude or number of participants, the purpose being merely lo eidele pobie "disturbance or ‘commotion, without necessarily involving an uprising or use of bf (art, 153). thay oe r 410/'Wiemorize the seven acts defined and Penalized as Inciting to sedition ju...) sil J Foon ier Myre Concealing_sasitious (evil practices is inciting to ‘sedition (not accessory in sedition, thus Art. 20 does not apply) 11, Distinguish legal assembles (148) rom legal association (147) eee 4. aglassenbies are holdin congcion wih eect y commiting fans undo’ he REO wie Nera oeoo eet include crimes punishable by spacial Jaws; b Inillegal assemblies, what is punished is the holding of acing and aidnahee texan, vnlo bagel seas eee oy coe. pushes forded he eek atStmbersip ren sap ©. In illegal assemblies, the persons liable are the organizers“and = those atoning the meetny whieh taael ese ibeegi ete snameaies. ergs 12. Direct Assault (148) ~ may be committed against private individuals: jth is a person in authority or an agent of a person in authority, even if he is not_a_pyblic officer, @.9. teacher and professors and a private Individual who comes to the! aid of a person in authasiy pring, not necessarily wth the use of arms, ef au. d/nd po Es fh % 6,2 tre offender emp.cys violence against any privaie individual as long 2s tne object of the offender is among the purposes of rebellion or sedition ‘but the attack is unaccompanied by a public uprising. 13. Delivery of prisoners from jail (156) may be committed by violence, intimidation or bribery. Bi 5, can neither nor compigxed but shall be @ separate crime, since the penally therefore is "in addition to" those for other offenses (Art. 210.) a 2. Consequently, if the delivery ‘of the prisoner is committed through bribery, the parties concerned incur the following liabilities: 41. The briberis liable under this article, plus corruption of.a public officer. (Art. 212) 2. The jailer, if a public officer, is lable for infidelity in the custody of Prisoners for conniving’ with or consenting to evasion (Art, 223), in adaition to his labilty for bribery (Art. 210); and if he is a private individual, he Is— identically '@ble but is punished with the next lower degree of the penalty (Art. 225), 3. The prisoner, if he is @ con judgment, is liable for vasion of st sentence (Art. 187), Butis not liable under this article Snes fo ine coceattte ain toics oliverately adopted as a necessary means, but was incidental fo the purpose of the accused till the vic, the two offenses cannot be coniplésed 33. Grave Threats (Art. 282); Light Threats (283); Other light Threats (Art. 285) ‘These provisions may be simplified and clarified as follows: 2. I the act threatened is a crime: (1) It will always be @ grave threat under Art, 282, with Par. 1 to be epplied if the threat was subject to a condition, except where the threatwas made in the heat of anger and the offender did not persist, in which case itis @ light threat under Par. 2, Ar. 285. b. the act threatened iggGUA crime: ‘g (1) Kwil atvays be @ light reat under Art, 283 if subject to a ‘condition, and under Par. 3, Art. 285 if not subject to a condition. A threat is distinguished from coercion (Art. 286) as follows: 2. If the act desired was ni immated, it would be a ‘grave threat; it the desired purpose was correspondingly it is grave coercion (see People vs. Picunada, CA, 43 0.G. 2222; "vs. Camat, CA- GR No, 13777-R, Sept. 22, 1958). _-- th threats, the harm which the offender threatens to commit is in the faiusen coorcion, the threatened harm is immediate and impending in a present coniontation the harm is directed against the victintS pasetin, harfoO fe of his family; in coercion, the injury Is threaten to Tied @ vitim. 84. Grave Coercions (A. 285); Unjust Vexation (Art. 287) WV the purpose of the accused is to compel the victim to do something ‘against his wil the crime is coercion even F the acl desired is ight OF wrong. fis purpose isto foribly prevent the viet from doing something. the Get Sought to be provented must be lawul. In either case, the accused must be acting without authority o aw Weyl Mel ppt ~ There is no crime of attempted or frustrated unjust vexation as, 1y which is not a crime against persons or property, it only punishable when it is consummated (People vs. Calaguas, CA\G.R. ‘No. 04721-CR, Sept. 30, 1964) 35. Discovering secrets through seizure of correspondence (Art. 290); Revealing Secrets with abuse of office (Art. 291); Revelation of industrial secrets (Art. 252) ‘These felonies consisting of the unlawful discovery and revelation of the secrets of @ person or entity are committed only by private individuals in the following manner: 3, By the accused seizing the papers or letters of the vietim in order to iscover his secrets regardless of whether or not he reveals the contents thereof (Art, 280), tut the penalty depends on whether or not he makes that revelation, Parents, guardians, or persons who are in custody of minors are excluded since it is believed that such parental authority will enhance the guidance and Protection of the youth. Spouses are also excluded because of the theoretic identity of their interests. », By the managers, employees or servants who in such capacity learned of the secrets of their principal or master and ravealed the same (Art 291), Unless the revelation is required by law. 7©. By the person in charge or the personnel of a manufacturing or industrial firm who reveals its industrial secrets tothe prejudice of the owner, In People vs. Singh (CA, 40 O.G., Supp. No. §, p. 35), it was held that where the telegram addressed to the offended party was taken by the accused (a) to discover the secrets of the former, it would be punishable lunder Art. 290; (b) to cause damage to the former, it would be estafa (Art. 315); of (c) to harass or annoy the victim, it would be unjust vexation (Art, 287). 36, Robbery (Art 293) ‘The first three elements of robbery athe same as those fc that is, tent to gain (animus Iucrandl) Af unlawful taking (apodsrsmiento oF ‘sportacion), and {syérsonal property as the subject matter (biones muebles. The ciference is in the mode of, taking, that for robbery being ATERES, against or intimidstion of persons-or force upartfings, and that for theft beiag — stealth or strategy. gia The element of the offender's animus tucrandi is what principally diatinguishes robbery fom boy Bb. However, in the crime of cattle rustling which © Our criminal justice system by P.D. 633, the accused is liable for the unlawful taking of the animals “whether or not {for profit or gain, or whether commfet with or without violence against or intimidation of any person or force upon things” (See. 2{c)) Intent to gain is presumed juris tantum the moment there is apoderamiento (U.S. vs, Adiao, 38 Phil, 754; People vs. Sia Teb Ban, 54 Phil £52) The culprit i crminally lable even if he did not make use of the property ne stole but geve-iothid parsons, as his approprialion and depositor tmereot constitutes his persona, gain To constitute apoderamiento, itis sufficient that the object was jakew-and held by the offender in ganarner Sufficient to enable him-io-disposa-abi as he inlendes, even if his p&SGeesion threo! be merely tomporsty of even Taree ¥s. Adiao, supra) 2 lote: THERE 1O CRIME OF FRUSTRATED THEFT }Valenzuela vs, “The traditional legal concept of personal property has over the years been expanded by technological advances. Electrical energy and has have long been considered as proper subjects of theft. The case of Laurel vs. Abrogar, etc. et al. (GR. No. 155076, Feb. 27, 2006) necessitated a further rationalization of the Nature of the property that may be considered personal property which may be susceptible of being the subject of thet. The compisinant Philippine Long Distance Telephone Company (PLDT) holds @ legislative franchise for the operations of a telecommunications system, with its varied functions, for domestic and international calls. It has installed {elephone ‘lines nationwide and maintains an international gateway. with equipment for international tong distance calls of its local subscribers. The Tespondent Baynet Co., Lid. (Baynet) adopted an alternative caling pattern employing a method of routing international long distance calls to the subsorbers of PLOT and using the latter's domestic exchange facilties, but by passing the PLDT intemational gateway. Baynet thus evaded payment of access, termination " ifor bypass charges and accounting rates and offered such unauthorized intemational telecommunication services at @ lower rate to the damage and prejudice of PLOT. On the charge of thet for “stealing the international long distance cals belonging to PLDT.” the Supreme Coun absolved Bayne! on the consideration that under the Code, the words “personel property" and “taking” connote thal oni Bersonal movable properties which have physical or material existence ad Susceptible of occupation by another are proper objects of thot Intangibie: bropertas such a hts and interests cannot be “akan” from the places J where they are found and thereafter occupied and appropriated, Electricity, and gas are also intangible properties but they are proper subjects of use they are capable of appropriation by another. Business 7 ‘and services are properties but are not proper subjects of theft since the sama” cannot be “taken” or “occupied the unlawful taking is robbery. However, rom the commencement of the felony. AS ong as violence is employed before the asportation is complete, the crime is simple robbery. All other elements being present, the moment there is violence vw ‘Thus, @ thief who employed violence against the victim’only when the later “w became aware that his pocket was being picked is guity of robbery. Although it would only have been theft at the outset, since violence was used before the unlawful taking was completed. the crime became robbery (People vs Omambong, CA-G.R. No, 44645, June 3, 1936). 37 Robbery with violence against or intimidation of persons (Art. 264) Art. 294 punishes robbery with either homicide, rape, mutilation, arson, Serious physical injuries or wi GEaRy Uioceueery wobnce nia aoe Ceals with attempted or frustrated robbery with homicide. These offenses with, their respective components are punished as single crimes, and have become known 2s "spee 188, OF “composite crimes," or sometimes “special _-—~ indivisible enies: {see People vs. Carandang, et al, G.R.No.L-31012, Aug. 16, 1973) In Art. 294, the robbery and homicide must be consummated, and in Art, 297, the homicide must likewise be consummated, When the accused committed robbery with rape and the victim is killed, the crime is robbery with homicide and the rape is ignominy, unless there is no direct connection between the robbery and the kiling, in which case they will be Separate cnmes of robbery with rape apart from homicide. Where robbery was committed at Jones Bridge in Manila and the vicim was killed by the offender \who thereafter took the victim's female companion to Quezon City whore he it was held that the crime was robbery with homicide aggravated by pe committed in Quzon City was directly connected with the robbery with homicide in Manila, despite the time interval between the two offenses (People vs. Tapales, et al, GR. No. L-35281, Sept 10, 1979) “Homicide” in Art. 297 is also used in its generic sense, to include eny ther unlawful kiling (People vs. Manuel, 44 Phil 333; People vs. Dagundong, et at, 108 Phil, 682) However. ifthe kiling legally constituted murder or parriade {he offense will continue to be covered by Art. 297 with the technical nama stated ‘herein but the penalty shall be for murder or parricide (People vs. Moljon, 99Phil. 88; cf. People vs. Morados, 70 Phil.658) because Art. 297 states “unless the homicide (kiling) committed shall deserve a higher penalty under this Code.” It is indispensable, however, that the killing must be directly connected with the robbery. Hence, where long after the robbery, one of the robbers realized that they left the door of the building open and the robbery would easily be discovered, whereupon he returned to close that door but he had to kill the janitor who also arrived at the scene, it was held. that the killing was a separate crime as it was only indirectly connected with the robbery (DSCS, May 23, 1989; see People vs. Maribung, et al, G.R. ‘No. L-47600, Apri! 29, 1987). There is no regular or special complex crime of theft with homicide 8 they will always be separate crimes. Where the accused stole roosters from a coop under the house and, much later while he was still in fight from the house, he killed a policeman who sought to apprehend him, he committed two’ separate crimes of theft and homicide. Although the homicide may be said to have been’ committed on the occasion of the unlawful taking of the roosters that fact is of no consequence since tho unlawful taking, not being accompanied by violence against or intimidation of persons nor force upon things, 'was only simple theft (People vs. Jaranilla, ot al, G.R. No. L-28547, Feb. 22, 1974). If robbery was accompanied by a kiln, it will be within the purview of Art 294 (1) even if the decedent was himself one ofthe robbers who was kiled by his, co-robbers, since the law makes no distinction, This is also true even if the kiling \was not intended or merely accidental, The rule is equally applicable even if an innocent bystander was killed or where it could not be determined whether the ‘shots that killed the victim were fired by the accused or the pursuing constabulary troopers, Par. 1 of Art. 294 also applies even if the victim of the rape committed by the accused is herself a memiber of the gang of robbers. The same is true if that gang committed homicide, mutilation or inflicted injuries penalized in Pars. 1 and 2 of Art. 263 on any of their co-robbers, Regarding Par. 4, i during the robbery one of the robbers inflicted on his ‘co-robber any ofthe injuries defined in Pars. 3 and 4 of Art. 283 (deformity, loss of @ non-member part of the body, incapacity for labor more than 90 or 30 days, or clearly unnecessary violence), this situation will not be punishable under this paragraph of Art, 284 as itis species that such injuries are inflicted on a “person, Not responsible for its commission,” that is, the robbery. These injures inflicted by that robber are punishable separately from his liability for robbery, In People vs. SPO1 Lobitania (G.R. No. 142380, Sept. 5, 2002), the ‘Supreme Court explained that carnapping, as punished in RA. 6539, ‘essentially the robbery or theft of a motorized vehicle and it is considered a8 qualified or aggravated when, in the course of the commission or on the ‘occasion of the carnapping, the owner, driver or occupant is killed or Taped. In People vs. Bariguit, ot al, (G.R. No, 122733, Oct 2, 2000), it was earlier deciered that, i attended by @ killing, itis similar to the special complex crime of robbery with homicide. Accordingly, it was ruled that “qualified amapping or camapping in an aggravated form is deemed to bea crime ‘against property and the jurisprudence on robbery with homicide andlor rape, Particularly the appreciation of aggravating circumstances, is generally applicable to said special cme- °35. Definition of a band and liability of members of a band (Art 296) The liability of @ member of a band, without the interplay of the rules on. conspiracy as explained in Art. 48 are as follows: €. If both robbery and homicide or physical injuries were the object of the band, all the members thereof are tiable for the resultant cries without ‘qualification (People vs. Lingad, 98 Phil. 5) ». only robbery was the object of the bang, all are liable for robbery; and for the homicide, rape and physical injuries, only those who were present during the assault and cid not attempt to prevent the same will be liable as principals in those additional offenses (People vs. Evangelista, etal, 86 Phil. 112). 39, Attempted or frustrated robbery with homicide (Art. 297) Where three houses were robbed successively by a band, there are three ‘crimes of robbery in band for which the offenders must respond (People vs. Esquero, et al, 100 Phil 1001), unless the robberies were committed under ‘one general pian which therefore constitutes the depredations into a single crime of robbery in band (U.S. vs. De la Cruz, 4 Phil. 430). 40. Execution of deeds by means of violence or intimidation (Art. 298) ltis essential that the document is capable of producing legal effects and that the victim was under a lawful obligation to execute and deliver the same. If the document is void, it cannot be said that the offender had intended to defraud the victim. However, even if the foregoing two conditions do not obtsin, the ‘offender by violence or intimidation to perform an act whether night or wrong, 41. Robbery with force upon things in an inhabited place or public building or Place devoted to religious worship (Art, 299) The second mode of committing robbery is through the use of force upon things which may be employed in an inhabited house, public bulding or edifice Gevoted to religious worship (Art 299) or in an uninhabited house or private building (Art, 302), In either instance, the use of force must have been for the purpose of entry or to actually enable the offender to enter the building, ‘The acts of commission in both Arts, 299 and 302, as well as the meaning Of terms are the same, such as the meaning of force which is both physical or constructive force. Infact, for purposes of entry, itis only the breaking of any wall oF other parts of the house which involves actual physical force, the other means of entry being merely constructive force. The only difference between the aforesaid two articles is that the use of fictious name or simulation of public authority can be used only in Art. 289 which refers to inhabited buildings and not in Art, 302 which involves uninhabited or other places. In line with Par. (a) of Art. 299, the unlawful entry, breaking of exterior walls or parts of the house, the use of false keys, and employing fictitious names or simulating public authority must be used (o enter the building. Hence, if the offender had theretofore entered through an open door 4nd then avails of any of the foregoing acts to get out ofthe building with his loot, {he crime is theft, unless what he is bringing out are locked or sealed receptacies (9‘andor their contents which he broke inside or are intended to be broken outside the house, If false keys were used not fo effect entry, the subsequent taking will be theft even if those false keys were also used to open the interior doors or locked receptacles inside. ‘Where the servant stole the keys to the downstairs bodega, then opened the front door thereof and stole some articles, the cxime is theft as the offender \was already inside the house and the bodega is not a separate building (People vs Fernandez, 58 Phil 674) For both robbery and theft, large cattle as referred to in Art. 302 should include the horse, bull, mule, as, carabao or other domesticated ‘members of the bovine family, as provided in Sec. 511 of the Revised Administrative Code (U.S. vs. Javier, 37 Phil. 449). Goats are “cattle” but Not large cattle for purposes of Art. 302 (People vs, Nazareno, etc, ef al, GR. No, L-40037, April 30, 1976). 42, False keys (Art 205) Par. 2 also considers as false keys the genuine keys stolen from their owner. Even if the keys were not stolen but were lost or misplaced by the owner and they were found by another who did not return the same to the owner although he was in a position to do so, that constitutes theft under Art. 308. That key is, therefore, a stolen, hence a false, key; and if used to enter a house from which articles were thereafter unlawfully taken by the offender, the crime is robbery. IK the house owner entrusted the key to his confidential secretary for safekeeping, but the latter used it to commit unlawful acts of eniry and abstractions, the crime is qualified theft through grave abuse of confidence (Art 310) 43, Brigandage (Art. 306) Brigandage is indiscriminate highway robbery, kidnapping or for other Purposes which may be attained by force and violence, as provided in this Code P-D S32 makes no specifications but merely states in general that the purpose of the offenders is unlawful and indiscriminate depredations committed on any highway. Also, while the Code contemplates a band of more than three armed Persons in order to te considered as brigands, there is no such requirement in P.D. 832, The presumption that if the band has an unlicensed firearm they are ‘rigands is not reproduced in P.D. 532, However, the presumption in the Code. that if aid is given to the brigands itis knowingly given, and that whosoever aids oF abets or receives property from brigands shall be meted a penalty equivalent 0 a principal, is adopted in P.0. 532. In the unusual case of People vs. Puno, et al. (G.R. No. 97471, Feb. 17, 1993), the accused was able to extort P100,000 in checks from his emplayer by ‘efusing to let her out of her car which he kept driving around on the highways of Metro Manila for quite sometime until she gave the checks. The Supreme Court held that the crime was simpie robbery under Par. 5 of Art, 294. It could not be a violation of P.D. $32 as this refers to indiscriminate unlawful acts committed on Philippine highways but not a particular robbery. Is48, Theft (Art. 308) Where a car was taken from where it was parked to another distant street, then its three tires were removed, thus indicating that there was animus lucrandi in the taking, it was held to be qualified theft of the entire Car as that was what the offenders asported (People vs. Carpio, 64 Phil. 48). Now, this will constitute carnapping of the entire vehicle (People vs. Ellasos, et al,,G.R. No. 139323, June 6, 2001). Where carabaos were stolen and sold in an adjoining province, with pretense of ownership over the animals, the accused is gully of separate crimes Of qualified theft with the owner as the victim, and estafa with the buyers as the offended partios A meter reader of the electric company who intentionally “under roads” the electric meter of a consumer Is liable for theft of electricity (Natividad vs. CA, G.R. NO. L-14887, Jan. 31, 1961), in the same manner a8 @ consumer who evades payment by using a “jumper” to deflect the ‘current from his electric meter (U.S. vs. Carlos, 21 Phil, 553) or those who use other contrivances, or tamper with that matter for the same purpose, These acts were then also punished by P.D. 401 until its repeal on December 8, 1994, by R.A. 7832, the Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994. Theft is not limited to an actual finder of lost property who does not return or deposit it with the local authorities but includes a policeman to whom he entrusted it and who misappropriated the samo, as the latter is also a finder in law (People vs. Avila, 47 Phil. 720). 44, Qualififed Theft (Art. 310) If theft Is committed by a doméstic servant, it is always qualified. If committed by ordinary employees, it is simple theft as special confidential or fiduciary relationships are required to qualify it, like those existing between an lemployer and his confidential secretary of with a cashier. ‘Thore are other special provisions on theft which were adopted as a ‘matter of national policy or necessi @. P.D. 133, issued on February 20, 1973, provides that any employee or laborer who shall steal any material, spare part, produce or article that he Is working on, using producing shall, upon conviction, be punished with imprisonment ranging ranging from prision correccional to prision mayor. b, P.D. 330, issued on November 8, 1973, provides that any person, whether natural or juridical, who directly or indirectly cuts, gathers, removes of ‘Ssmuggles timber or other forest products, either from any of the public forests, forest reserves and other kinds of public forests, whether under license or lease, 6 from any privately owned forest lands in violation of existing laws, rules and regulations shal be guity of the crime of qualified theft as defined and penalized under Arts. 308, 309 and 310 of the Revised Penal Code ‘This was later adopted as Sec, 68 of the Revised Forestry Code (PD. 705), with amendments, In Paat, etc, et al vs. CA, et al, (G.R. No, 111107, Jan. 10, 1997), the Supreme Court noted that the aforesaid Sec. 68 and its punitive provision reading that the Oe‘accused “shall be guilty of qualified thet as defined and punished under Arts. 308 and 310 of the Revised Penal Code’, was amended by E.0. 277 by eliminating the aforequoted phrase and inserting instead the words “shall be Punished with the penalties imposed under Articles 309 and 310” of the Code, ©. PD. 581, effective November 13, 1974, provides that any person who shall take gold-bearing ores or rocks fom a mining claim or mining camp ot shall remove, collect or gather gold-bearing ores or rocks in place or shall extract or remove the gold from such ores or rocks, or shall prepare and treat such ores or rocks to recover or extract the gold contents thereof, without the consent of the ‘operator of the mining claim, shall be guity of “highgrading” or theft of gold, 45, Estafa (Art. 315) Estafa has features similar to theft, which sometimes cause controversial decisions, but they are readily distinguishable under present jurisprudential guidelines. In estata with abuse of confidence, juridical possession of the object is transferred to the accused who thereafter converts the same to his own use or Purpose, while in theft, only the physical or material possession of the object is transferred. There is transfer of juridical possession when the transfer of the Property is made by virtue of an obligation created by a valid contract or by law, which grants to the transferee a right of possession which he can set up even against the transferor. | aside from material and juridical possession, ownership was also transferred to the errant transferee, his defaul in the return thereof wil only entail Civil lability, Thus, when the thing transferred is fungible or consumable and under circumstances of mutuum, there is transfer of ownership and any liability is only civil in nature, (b) provides for estafa by misappropriating or converting ich the offender received under a mode of transfer entailing Juridical possession under a duty on his part to return or make delivery thereof, The offender must have recsived the property in trust, on commission, for administration or any other obligation requiring the delivery or retum thereot, ‘These other obligations may arise from contracts of baiiment, like a lease of Personal property, commodatum or contracts of deposit. It may also be an obligation arising from a quasi-contract, such as solution indebiti (Art 2154, Civil Code; U.S. vs. Yap Tian Jong, 34 Phil. 10). ‘The amounts paid by the students to the school to answer for materials which may be broken by them are not in.the nature of deposits which are to be returned in exactly the same bills or coins since the relation created thereby is, not one of depositor and depositary. The transaction was in the nature of a loan (mutuum) and not @ contract of deposit (depositum). Ergo, the college acquired Ownership over the amounts subject to reimbursement of equal amounts minus deduction for destroyed materials. The fallure of the college to refund gives rise ‘o civil liabilty, not estafa (People vs. Montemayor, et al, GR. No. L-17449, Aug. 30, 1962) ”It the jewelry intended to be sold was instead pledged by the agent who failed to account for the amount received from the pledge, the crime estafa as, there being a contract of agency, she had juridical possession thereof. On the other hand, if the jewelry was merely given by the owner to bbe pledged but the accused sold them, the crime is theft as there was no agency agreement and the latter had only material possession (People vs. Trinidad, 60 Phil. 65). Where the sale of the appliance was on atrial basis and the buyer did not ‘ive notice of rejection after the end of the trial period, the ownership of the Property passes to him. His subsequent.sale thereof does not make him liable. under Par. 1(b) since he exercised an act of ownership over the property (People: vs. Joyce, CA, 66 0.6 No. 45, p. 10163). This resolution will not apply f the contract of sale on trial basis contains a reservation of ownership by the seller unless the price of the sale was fully paid, Par. 1(c) punishes as estafa the act of the offender wha takes advantage of the signature in blank of the victim, and by writing any document above the same without the knowledge or consent and to the Prejudice of the victim, 2. Ifthe paper with the signature in blank is delivered to the offender who then filed it up not according to the instructions or intendment of the signatory, the ‘crime is estafa and falsification is absorbed therein pursuant to. the specification in this provision ». If that same paper was not delivered to the accused but he obtained the same and filled it up. all without the victim's knowledge or consent, the came Is falsification under ‘Art. 174(3) by attributing participation in that act to the signatory. There is no abuse of confidence here as it was not delivered to the accused, © I there is @ writing above the signature and it was altered by the offender without the signatory’s knowledge and consent, it will be falsification Under An. 171(6) because of the intercalation to change the meaning of the writing, If the signature was secured by fraud, the erime is estafa under Par 3{2) by inducing another, through deceit, to sign @ document. Where the accused obtained money from the offended party on a Promise that he would work for the approval of certain applications but did ot succeed, it is not estafa as the parties had actually entered into a contract for services, unless it is proved that the accused had no intent to Perform the services at the time he asked for the money (Abeto vs. People, 90 Phil, 581; People vs. Wilson Yoo, CA, 55 0.G. 1222). ‘Thus, where the accused undertook to purchase palay for the victim but failed to deliver as promised, there is no estafa even if he had received advance: Payment, unless there was misrepresentation on his part or fraud in the. inducement, of if he had no intention from the outset to comply with his undertaking, there being pretense or deceit in both instances (People vs. Dizon, CA, 530.6 4713) The accused may be convicted for both ilegal recruitment and estafa {Hegel recruitment is a malum prohibitum, while estafa is a malum in se, hence the criminal intent of the accused is not necessary for conviction in the former but 1s Gois required in the later pursuant to Art. 315, par. 2, of the Revised Penal Code (People vs. Saulo, G.R. No. 125903, Nov. 18, 2000) The issuance by the offender of the check, prior to or simultaneous with the transaction, must be for the purpose of contracting the obligation; otherwise if the check is issued in payment of a preexisting legal obligation, no estafa is committed (People vs. Lilius, 59 Phil. 339; Peoplo vs. Sabio, Sr., G.R. No. L-45490, Nov. 20, 1978), and this rule applies to a Postdated check issued in payment of a preexisting obligation (People vs. Go Bio, Jr, G.R. No. 68575, June 6, 1986). If the check, however, was issued by the debtor only as security for the Creditor, in the nature of a promissory note and not to be encashed, no estafa will be involved, There would be no deceit on the part of the accused, therefore no estate was committed (Pacheco vs. CA, et al, GR. No. 126670, Dec. 8, 1999) For estafa in Par. 3(c), the removal, concealment or destruction of court records, office files, documents or any other papers must have been done by the accused with the specific intent to defraud those who are concerned in or affected by those papers. If there was no intent to defraud, anybody, it could be malicious mischief. 46, Other forms of swindling (Art. 316) Par. 1 presupposes that the property actually exists but does not belong to the offender who, under pretense ofits ownership, effects the stated dispositions thereof. The accused must have expressly misinterpreted tht the property is free: {rom encumbrances, by such phrases in the document as ‘free from liens and encumbrances’ 47. Destructive Arson (Art, 320) P.D. 1613 provides: Section 1. Arson. — Any person who bums or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shali be imposed when @ person sets fre to his own property under circumstances which expose {0 danger the life or property of another. 48, Malicious Mischief (An. 328) Malicious mischief is destruction out of hate, revenge or other evil motive, {or the specific purpose of destroying property, Hence, it cannot be committed thru reckleas imprudence. IV property was maliciously damaged then appropriated by the offender, the crime would be theft under Art. 308(2), the malicious act being absorbed therein, Where the pigs of another were killed by the accused to avoid damage to his crops, he incurs only civil labilty (People vs. Liddayo, 53 OG 8763) But where the cattle of the offended party were killed by the accused out of hate or for revenge, it would be malicious mischief (People vs. Valiente, CA-GR. No 9442-R, Dec. 29, 1953). 49, Aduitery (Art, 333) ip