ANGELES UNIVERSITY FOUNDATION

Angeles City
School of Law

CRIMINAL LAW II
2nd Semester, SY 2019 – 2020
Section 1-B

Exercise 19

In this examination, the student should comply with the following rules of
conduct for this examination, viz:

1. This part of the course will prepare the student for the bar examination in
Criminal Law. The student must print out this examination and answer the same
using pad paper and pen. All the items have to be answered within four (4) hours,
without using any books, notes or electronic devices. Since there are thirty six (36)
numbered items, the student must manage the time he or she will devote to each
item.

Read each question very carefully and write your answers in your
examination paper in the same order the questions are posed. Write your answers
only on the front of every sheet of your paper.

2. Answer the questions legibly, clearly, and concisely. Use black or blue ink only.
Start each number on a separate page. An answer to a question under the same
number may be written continuously on the same page and the immediately
succeeding pages until completed.

Your answer to the questions should demonstrate your ability to analyze the facts,
apply the pertinent laws and jurisprudence, and arrive at a sound or logical
conclusion. Always support your answer with the pertinent laws, rules,
jurisprudence, and the facts.

A mere “Yes” or “No” answer, or statement of the name of the crime or offense
involved, without any corresponding explanation or discussion are usually not
given full credit. Thus, always briefly but fully explain your answers although the
question does not expressly ask for an explanation. The examinee is usually given
credit even if the answers are not exactly correct if the answers are well argued and
logical. Do not re-write or repeat the question in the exam paper.

3. Answers should always be proofread. Because the examination is also a test of

the examinee's writing ability, he or she should spend some time to review his or
her answers. Look for mistakes in grammar and punctuation, check for misspelled
or missing words and omit needless words.
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4. Make sure you do not write your name or any extraneous note/s or distinctive
markings on your exam paper that can serve as an identifying mark/s (such as
names that are not in the given questions, prayers, or private notes to the
Examiner). Writing, leaving, or making any distinguishing or identifying mark on
the paper is considered cheating.

5. The student must state in the paper when she answered the questions and how
long she took in finishing the examination.

6. Thereafter, the student must again answer the same questions using his or her
books, notes, computer and electronic devises; and submit via e-mail his or her
second set of answers to the examination to Judge Jonel S. Mercado after said
examination. The student may (a) change, alter or modify the answers he or she
gave during the handwritten examination; and (b) submit his or handwritten
answers on or before the final examination in this class. Both sets of answers will
be graded.

1. Alex and Brenda got married, resided in Angeles City and were blessed with a child
named Cyndy. The marriage turned sour because of Alex’s repeated infidelity. They
legally separated. When Cyndy was twelve (12) years old, the family court of the
Regional Trial Court, Angeles City, placed her in Brenda’s custody, subject to weekly
visitations by Alex. The trouble started when without the court’s permission, Alex did
not to return Cyndy to his mother; and decided to take the child to Canada so they could
reside there permanently. What crime, if any, did Alex commit? Discuss if applicable
Article 271, in relation to Article 270, of the Revised Penal Code, as amended.

Alex committed the crime of kidnapping and failure to return a minor under Article 271,
in relation to Article 270, of the Revised Penal Code, as amended. Article 271 expressly
penalizes any parent who shall take from and deliberately fail to restore his or her minor
child to the parent or guardian to whom custody of the minor has been placed. Since the
custody of Cyndy, the minor, has been given to the mother and Alex has only the right of
monthly visitation, the latter's act of taking Cyndy to the United Slates, to reside there
permanently, constitutes a violation of said provisions of law.

2. Angela and Bentong were former sweethearts and decided to get married. While he was
drunk with liquor, he sexually assaulted her. They broke up. Worse, Angela charged
Bentong with the crime of rape. Believing that their family reputation was ruined
because of said charge, Bentong, together with his mother Inday and brother Bunsoy,
forcibly brought Angela inside their black van, dragged her inside a warehouse owned
by them and detained her for two (2) days. They demanded that she sign an affidavit of
desistance and reimburse Bentong the sum of P50,000.00 which he paid for their
wedding invitations when they were still engaged to get married. She signed the affidavit
and paid said amount. She was thereafter released. What crime or crimes was or were
committed? Explain.

They committed kidnapping and serious illegal detention under article 267 of the revised
penal code. The elements of such crime are: (1) That the offender is a private individual.
(2) That he kidnaps or detains another, or in any other manner deprives the latter of his
liberty. (3) That the act of detention or kidnapping must be illegal. (4) That in the
commission of the offense, any of the following circumstances is present: (a) That the

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 kidnapping or detention lasts for more than 3 days; (b) That it is committed simulating
public authority; (c) That any serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or (d) That the person kidnapped or
detained is a minor, female, or a public officer, (cited in People vs. Mercado, 131 SCRA
501). In this case, both the offender are private individual, and they illegally dragged
Angela into a warehouse and asked for a sum of money or ransom, thus even if the
detention didn’t last for more than 3 days, they are still liable because it is a rule that If
the victim is kidnapped and illegally detained for the purpose of extorting ransom, the
duration of his detention is immaterial (People v. Ramos, C.R. No. 178039 January 19,
2011). And when the offender simulated public authority, or when serious physical
injuries were inflicted on the victim, or when threats to kill him were made, or when the
person kidnapped or detained was a minor, female, or public officer, even if the period of
detention was less than three days, the crime committed is serious illegal detention.
Hence, they committed kidnapping and serious illegal detention under article 267 of the
revised penal code.

3. Brothers Alex and Berto conspiring with each other, kidnapped Chingoy and detained
him. The brothers then called up Chingoy's wife informing her that they had her husband
and would release him only if she paid a ransom in the amount of P10,000,000 and that,
if she were to fail, they would kill him. The next day, Chingoy had a stroke. Fearing he
might die if not treated at once by a doctor, the brothers released Chingoy during the
early morning of the third day of detention. They were caught and charged with
kidnapping and serious illegal detention provided in Article 267. The brothers filed a
motion to dismiss contending that since they had voluntarily released Chingoy within
three days from commencement of the detention, without having been paid any amount
of the ransom demanded and before the institution of criminal proceedings against them,
the crime committed was only slight illegal detention prescribed in Article 268, RPC.

Should the motion to dismiss be granted? In explaining your answer, you may
state the elements of the crimes of (a) kidnapping and serious detention; and (b) slight
illegal detention.

No, the motion to dismiss should not be granted because the charged of
kidnapping with serious illegal detention is correct. Under article 267 of the revised penal
code, the elements of the crime are: 1) That the offender is a private individual. (2) That
he kidnaps or detains another, or in any other manner deprives the latter of his liberty. (3)
That the act of detention or kidnapping must be illegal. (4) That in the commission of the
offense, any of the following circumstances is present: (a) That the kidnapping or
detention lasts for more than 3 days; (b) That it is committed simulating public authority;
(c) That any serious physical injuries are inflicted upon the person kidnapped or detained
or threats to kill him are made; or (d) That the person kidnapped or detained is a minor,
female, or a public officer, (cited in People vs. Mercado, 131 SCRA 501). In contrast to
Slight illegal detention under article 268 of the revised penal code, the elements are: (1)
That the offender is a private individual. (2) That he kidnaps or detains another, or in any
other manner deprives him of his liberty. (3) That the act of kidnapping or detention is
illegal. (4) That the crime is committed without the attendance of any of the
circumstances enumerated in Art. 267. In this case, it is a fact that the offenders are
private individuals, and that they illegally detain another, however their defense that they
voluntarily release Chingoy on the third day will held them guilty only of slight illegal
detention is untenable because they ask for a ransom. If the victim is kidnapped and
illegally detained for the purpose of extorting ransom, the duration of his detention is
immaterial (People v. Ramos, C.R. No. 178039 January 19, 2011) hence both committed
kidnapping with serious illegal detention

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4. Jorel was smitten with Vina who was his classmate in Baguio City College. Already
engaged to get married with someone else, she rejected Jorel’s offer of marriage.
Undeterred, Jorel forced Vina into his van and brought her to his house. For three (3)
days, he tried to convince her to marry him but failed. However, he had carnal knowledge
of her once every day for the next three (3) days. On the 7th day, she was rescued by the
police authorities.

What crime or crimes did he commit? State your reasons. (See Art. 267 Revised
Penal Code; People vs. Crisostomo et. al., 46 Phil. 775; People vs. Beraal 131 SCRA
1984).

Jorel committed serious illegal detention and three (3) rapes. As long as there is restraint
of liberty, Illegal Detention is committed. Since the offended party is a woman, the crime
is serious illegal detention. (Art. 267 Revised Penal Code). Vina was deprived of her
liberty for six days although in the first three days Jorel kept the offended party in his
house solely to convince her to accept his marriage proposal. (People vs. Crisostomo et.
al., 46 Phil. 775). In the next three days, by forcing Vina, Jorel had sexual intercourse
with her once a day. Rape is not a continuous crime and so three rapes are committed. A
complex crime is not committed because the serious illegal detention is not a means
necessary to commit rape. Besides rape can be committed even without serious illegal
detention. (People vs. Beraal 131 SCRA 1984).

5. At around 6:30 in the morning, Dr. Belen was walking on her way home along the AUF
Law School Building. She saw Asiong bleeding in the chest and was in danger of dying.
She chose not to help him because she was tired and wanted to go home. After an hour,
Asiong died which death could have been prevented had he been attended to by the
physician. For what crime, if any, is Dr. Belen liable? Explain.

Dr. Belen is not liable for abandonment of a person in danger under par. 1 of Art. 275.
AUF Law School building cannot be considered an uninhabited place since it is within
the radium of one kilometer from where inhabited buildings are located. Besides AUF
Law School at that early morning would be teeming with students and other persons aside
from the physician. Decisions of the Supreme Court of Spain held that a place is
uninhabited if there is no population or group of persons, (March 9, 1883, 28 JUR Crim.
216).

6. Leno was awakened by a loud noise coming from the first floor of his house. He went
down and discovered that the screen door to the kitchen had been cut and the door itself
opened. He called the police. When they arrived, they saw Boy Akyat lying on the sala.
They arrested Boy Akyat but found no weapon, burglary tool or stolen goods in his
person. They examined the whole house and found everything in order. No valuable item
was missing. Can the crime of attempted robbery be charged against Boy Akyat? If not,
what crime did he commit? (See People vs. Lamahang, 61 Phil. 703).

No, the crime of attempted robbery cannot be charged against Boy Akyat, instead, the
crime that can be charged against him is consummated qualified trespass to dwelling.
(Art. 280, Revised Penal Code). The intention of Boy Akyat in entering the house of
Leno was indeterminate. For this reason, it cannot be attempted robbery because the overt
acts committed had no direct and immediate relation to robbery. (People vs. Lamahang,
61 Phil. 703). Since the screen door of the kitchen had been cut and the door opened, the
entrance was against the will of the owner

7. A barangay tanod caught Borong one night in the act of removing the glass jalousies of
the window of the house of Caloy, which was closed. Borong had already detached three
glass blades. The tanod arrested Borong and charged him of "Attempted Robbery." Do
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 you agree? If not, and if you were the investigating Public Prosecutor, with what offense
would you charge Borong? Explain (See People vs. Lamahang 61 Phil. 703).

No, I do not agree with the charged of attempted robbery. If I were the Fiscal, I would
charge Borong for attempted trespass to dwelling. In an attempted felony, the offender
begins the commission of a felony by overt acts which must have a direct connection
with the felony. It is necessary to prove that said beginning of execution if carried to its
complete termination following its natural course without being frustrated by external
obstacles nor by the voluntary desistance of the offender, will logically and necessarily
ripen to a concrete offense. The removal of the three glass blades of the jalousies have no
direct connection with the crime of robbery by force upon things. The purpose of
removing the glass blades to enter the house was still indeterminate. But certainly in
making the opening, the intention of the offender was to enter the house against the will
of the owner of the house. (People vs. Lamahang 61 Phil. 703). So, the crime for which
Borong should be charged, is attempted trespass to dwelling

8. At about 11:30 in the evening, Darambong barged inside Mely’s house. Her son Jason
saw Darambong and accosted him. Darambong pulled a knife and stabbed Jason on his
abdomen. Mely heard the commotion and went out of her room. Darambong, who was
about to escape, assaulted Jason who suffered injuries which, were it not for the timely
medical attendance, would have caused his death. Mely sustained injuries that
incapacitated her for 25 days. What crime or crimes did Darambong commit? (See People
vs. Abedoza, 53 Phil.788).

Dante committed qualified trespass to dwelling, frustrated homicide for the stabbing of
Jay, and less serious physical injuries for the assault on Mamerto. The crime of qualified
trespass to dwelling should not be complexed with frustrated homicide because when the
trespass is committed as a means to commit a more serious offense, trespass to dwelling
is absorbed by the greater crime, and the former constitutes an aggravating circumstance
of dwelling (People vs. Abedoza, 53 Phil.788)

9. Andy, Bernard, Chris, Dante, and Eloy were members of the Kuratong Balatong gang
operating in Manila with Gaby as their leader. Gaby assigned Andy, Bernard and Chris,
to get money from businessman Don Peping. As instructed, Andy, Bernard and Chris,
armed with guns, went to see Don Peping and demanded P10,000,000.00. When Don
Peping refused, Andy pointed his gun at him while Bernard hit him with the butt of his
gun, Don Peping gave the amount demanded. After the three (3) left, Don Peping went
to the Police to tell them what happened. On the way, he met Don Ongpin, also a
businessman. Don Ongpin told him that Dante, and Eloy, a week earlier, wrote him a
letter asking P5,000,000.00 and threatening to kill his son and wife should he fail to give
the amount. Afraid that the two would make good their threat, he gave the money when
Dante called him that day. Don Ongpin was also on his way to the police to report what
happened.

What crimes were committed? Explain.

Andy, Bernard, and Chris committed robbery. They were able to make Pedro give
them the P10,000,000.00 that they demanded when Andy pointed his gun at Don
Peping because he refused at first to accede to their demand and Bernard hit him with
the butt of his gun. They employed violence and intimidation in the taking of the
money with intent to gain. On the other hand, Dante and Eloy committed Grave
Threats. The reason is the intimidation employed refers to the killings of the wife and
son of Don Ongpin should he failed to give the amount of P5,000,000.00 demanded
in the latter which Dante and Eloy sent him. The distinction between robbery and
grave threats when the purpose is the same, that is, to extort money, is that in robbery,
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 the intimidation is actual and immediate whereas on grave threats, the intimidation is
future and conditional. And with regards to Gabby, being the over-all leader of the
group, is a principal by inducement in the robbery committed against Don Peping. He
has no liability regarding the grave threats committed by Dante and Eloy against Don
Onpin because the facts of the problem do not specifically mention his intervention
in the activities of Dante and Eloy.

10. Joel owns 5 hectares of farmland in which he planted mango trees. When he went to his
land, he discovered (a) that 5 persons took over the land; and (b) that said persons drove
away his caretaker, harvested the mangoes, and sold the same in a nearby market. When
Joel requested said persons to leave his farm, they told him that they would kill him
should he try to eject them.

What crime or crimes were committed. Explain.

The Crimes committed are Grave Threats under article 282 and Occupation of Real
Property or Usurpation of Real Rights in Property under article 312 of Revised Penal
Code. Article 282 of the Revised Penal Code punishes the following: (1) By threatening
another with the infliction upon his person, honor or property or that of his family of any
wrong amounting to a crime and demanding money or imposing any other condition,
even though not unlawful, and the offender attained his purpose. (2) By making such
threat without the offender attaining his purpose. (3) By threatening another with the
infliction upon his person, honor or property or that of his family of any wrong
amounting to a crime, the
threat not being subject to a condition. On the other hand, Article 312 of the revised penal
code punishes: (1) By taking possession of any real property belonging to another by
means of violence against or intimidation of persons. (2) By usurping any real rights in
property belonging to another by means of violence against or intimidation of persons.
Hence The 5 persons violated article 312 when they took over the land and they violated
article 282 when, they told Joel that they would kill him should he try to eject them

11. PO1 Alexander arrested Benedict on suspicion of selling shabu. The officer brought
Benedict in an abandoned warehouse and interrogated him but Benedict denied
knowledge and participation in any crime of selling shabu. Unsatisfied, SPO2 Alexander
then ordered PO1 Bagito, his assistant, to torture Benedict. As a result of the torture,
Benedict confessed selling shabu even though he had not.

(a) What crime or crimes were committed?

PO1 Alexander is liable for grave coercion. He is a principal by inducement. The

person arrested on suspicion of robbery was not yet a prisoner since the facts do not
show that he was already booked and detained in jail at the time of his
investigation. So maltreatment of a prison is not committed. Since PO1 Bagito, the
assistant of PO1 Alexander, was ordered to torture Benedict and as a result
Benedict confessed despite his innocence, grave coercion is committed, as the order
is unlawful.

(b) Will your answer be the same if Benedict did not confess?

Yes, the answer will be the same because Coercion is consummated even if the
offended party did not accede to the purpose of the coercion. The appellant claims
that the coercion was not consummated but was frustrated only for the reason that
the offended party did not confess the crime attributed to him. This conclusion is
contrary to the doctrine laid down by this Court in U.S. vs. Cusi, 10 Phil. 413,
which says: "The fact that an individual was maltreated for the purpose of
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 compelling him to confess a crime which was attributed to him, constitutes the
crime of consummated coercion, even if the agents of the authorities who carried
out the maltreatment did not accomplish their purpose to draw from him a
confession, which it was their intention to obtain by the employment of such
means."

(c) What will be your answer if instead of being taken to an abandoned warehouse,
Benedict was taken to the police station where he was interrogated and tortured
(See US vs. Cusi, 10 Phil 143)?

If the suspect was forcibly brought to the police headquarters to make him admit the
crime and tortured/ maltreated to make him confess to such crime, but later released
because the agents failed to draw such confession, the crime is grave coercion
because of the violence employed to compel such confession without the offended
party being confined in jail. (US vs. Cusi, 10 Phil 143)

(d) What if before he was tortured, Benedict was arrested, booked and put in jail in the
police station, would the crime be maltreatment of prisoner and physical injuries?

Evidently, the person tortured and maltreated by the agents of the law
is a suspect and may have been detained by them. If so and he had already been
booked and put in jail, the crime is maltreatment of prisoner and the fact that the
suspect was subjected to torture to extort a confession would bring about a higher
penalty. In addition to the offender's liability for the physical injuries inflicted.

12. The shih tzu dog of Gerladine entered the rose garden of Honeybabes and destroyed the
roses growing thereon. Honeybabes caught the dog and tied it inside her greenhouse.
When Geraldine found out that her dog was held captive by Honeybabes, she went to the
latter and demanded that the dog be set free. Honeybabes refused, telling Geraldine to
pay first for the value of the damaged roses. Geraldine got mad, armed herself with a
garden rake and told Honeybabes to turn the dog loose or else she would use the rake on
Honeybabes’ head.

What crime or crimes were committed. Explain (See U.S. vs. Mena 11 Phil. 543).

Geraldine committed grave coercion. Coercion is committed not only by violence but
also by intimidation, like threat of bodily harm which compelled Honeybabes to turn the
shih tzu dog loose, whether it was just or unjust. Geraldine had not acted under authority
of law or exercise of a lawful right since the shih tzu dog of Geraldine destroyed the roses
growing on the garden of Honeybabes, who refused to release the shih tzu dog tethered
near his hut until Geraldine pay first for the value of the damaged vegetables. (U.S. vs.
Mena 11 Phil. 543),

13. Ismael lost his electric motorbike. After a few days, he saw Ronald driving said bike.
When Ismael asked Ronald to return to him the bike, Ronald refused. Ismael then raised
his bolo and told Ronald, "If you will not give back the bike to me, I will hack you to
death!" Out of fear for his life and against his will, Ronald gave the bike to Ismael.

(a) Did Ismael commit the crime of grave coercion (Art. 286, RPC) for compelling
Ronald, by means of serious threats or intimidation, to do something against the
latter's will, whether it be right or wrong?

Yes, Ismael commit the crime of grave coercion under Art. 286 of RPC) for
compelling Ronald, by means of serious threats or intimidation, to do something
against the latter's will, whether it be right or wrong. Serious threats or
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 intimidation approximating violence constitute grave coercion, not grave threats.
Such is the nature of the threat in this case because it was committed with a bolo,
is a deadly weapon.

(b) Is the crime committed robbery?

No, the crime is not robbery because intent to gain, which is an essential element
of robbery, is absent since the electric motorbike belongs to Ismael

(c) Is intent to gain, which is an essential element of robbery, absent since the bike
belongs to Ismael? Explain all your answers briefly.

Intent to gain is presumed from the unlawful taking of personal property.

"Taking," as an element of robbery, means depriving the offended party of
ownership of the thing taken with the character of permanency. In this case intent
to gain is absent because the electric motorbike belongs to Ismael in the first place

14. In distinguishing coercion from illegal detention, is the following answer correct?

“Coercion may be distinguished from illegal detention as follows: in coercion, the

basis of criminal liability is the employment of violence or serious intimidation
approximating violence, without authority of law, to prevent a person from doing
something not prohibited by law or to compel him to do something against his will,
whether it be right or wrong; while in Illegal detention, the basis of liability is the
actual restraint or locking up of a person, thereby depriving him of his liberty without
authority of law. If there was no intent to lock up or detain the offended party
unlawfully, the crime of illegal detention is not committed.”

Yes, the following statements are correct.

15. What crimes were committed in the following instances:

(a) Andrea was jealous of the blond hair that her younger sister Brenda was sporting.
So one night, while Brenda was asleep, Andrea used hair dye to color her sister’s hair
black (See People v. Motita, CA 59 O.G. 3020);
(b) Gabo grabbed Steve and commenced kissing the cheeks and other parts of the
latter’s body, embarrassing the latter (See People vs.Climaco, 40 O.G. 3186; People vs.
Anonuevo, CA 35 O.G. 2018; People vs. Buenafe, 54 O.G. 610; People vs. Ignacio. CA
GRNo. 5119-R, September 30, 1950).
(c ) Rey kissed and embraced the unwilling Stella and touched her breast because he was
physically attracted to her (People vs. Percival Gilo, 10 SCRA 753).

(a) Andrea will be criminally liable for unjust vexation. In a case decided by the Supreme
Court of Spain, it was held that cutting the hair of another to humiliate or ridicule him
is slander by deed. (Dec. Sup. Ct. Spain, April 13, 1896). In the case of People v.
Motita, CA 59 O.G. 3020, it was held that the common denominator between unjust
vexation and slander by deed is the act which annoys, vexes or irritates the offended
party. Without any other concurring factor, the offense would be merely unjust
vexation as it is equated with anything which annoys or irritates another. Surely, the
act of Andrea caused her younger sister’s annoyance and irritation. However laudable
the purpose may be, to perform an act against the will of another to his annoyance
and irritation and without justification is unjust vexation
(b) Gabo is liable for unjust vexation. The acts of Gabo are annoying, irritating, vexatious
and are unjustified. As a matter of fact, even kissing a girl, and holding her tightly is
only unjust vexation (People vs. Climaco, 40 O.G. 3186). Since Gabo did the acts
because his offer of love was unrequited by Steve, his motive was not lustful but
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 merely to spite her or to force her to accept his love. (People vs. Anonuevo, CA 35
O.G. 2018). If Gabo was impelled by lust, he would have touched the breast and the
private parts of the offended party. (People vs. Buenafe, 54 O.G. 610).
(c) The acts of embracing, kissing of a woman arising either out of passion or other
motive and the touching of her breast as a mere incident of the embrace without lewd
design constitutes merely unjust vexation (People us, Ignacio. CA GRNo. 5119-R,
September 30, 1950). However, where the kissing, embracing and the touching of the
breast of a woman are done with lewd design, the same constitute acts of
lasciviousness (People vs. Percival Gilo, 10 SCRA 753).

16. What are the two (2) basic elements of estafa (See People v. Abana, 76 Phil. 1)?

In order that the accused might be convicted of the crime of estafa, the two essential
requisites of fraud or deceit and damage or injury must be sufficiently established by
competent evidence. (United States v. Rivera, 23 Phil., 383; United States v. Eustaquio,
31 Phil., 188; People v. Yusay, 50 Phil., 598.) (People v. Abana, 76 Phil. 1)

17. Is actual or real damage generally necessary in estafa (See People v. Nisperas, 56 OG
7317)?

Actual or real damage is not necessary. Mere disturbance of the property rights of the
offended is enough as long as it is capable of pecuniary estimation or even in temporary
prejudice.The reason why the damage must be capable of pecuniary estimation is because
the penalty in estafa generally depends on the value of the defraudation (People v.
Nisperas, 56 OG 7317)

18. Is mere intent to cause damage sufficient in all cases of estafa (See People v. Velasco, CA
– G.R. No. 2392–R, Jan. 9, 1950)?

In all cases of estafa, mere intent to cause damage is sufficient which even include the
estafa committed by other deceits in Art. 316 (Pp. vs. Velasco, CA-GR No. 2392-R, Jan.
9. 1950) except that one punished in Art. 6 of Art. 316 wherein damage must be actual
because the property involved here belongs to the accused. (Castillo vs. People, 73 Phil.
480).

19. When is previous demand an indispensable requisite in estafa (See People v. Scott, 62
Phil. 553)?

The appellant’s contention that a previous demand for the return of the amount swindled
and refusal or inability of the accused to do so are necessary elements of the crime of
estafa imputed to him, is without merit. This reasoning would be in point if the crime
involved were estafa under the provisions of article 315, case 4, subsection 1, paragraph
(b), referring to fraudulent misappropriation or conversion of money, goods, or any other
personal property 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, but it is not so in this case which involves defraudation committed
through false representations or fraudulent acts (U. S. v. Asensi, 34 Phil., 750). (People v.
Scott, 62 Phil. 553)

20. Distinguish estafa from theft.

In general, the crime of estafa is distinguished from that of theft by the manner in which
the offender in each case acquires possession of the property. The estafador receives the
possession of the property, while the thief takes, without the owner's consent, the
possession of the latter's property.

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 There are, however, instances where even if the property misappropriated was received
by the offender, the misappropriation will constitute theft, and not estafa. In such cases,
distinction should be made whether the offender, on receiving the property, acquired: (1)
the material possession alone or (2) the material and juridical possession, or (3) the
material and juridical possession plus the ownership, of the property. Where only the
material possession is transferred, conversion of the property gives rise to the crime of
theft; where both material and juridical possessions are transferred, misappropriation of
the property would constitute estafa; and where in addition to the material possession, the
ownership of the property is transferred, misappropriation would only give rise to a civil
obligation (People vs. Aquino, 36 Off. Gaz., 1886). For example, an agent of the public
authorities who, in the performance of his duties, and because of the lack of registration
papers, takes possession of cattle in the presence of the cattleman charged with the care
thereof, without any opposition or protest on the part of said cattleman or on the part of
the possessor or owner of the cattle seized and appropriating the value thereof to his own
use, without reporting the case to his superior officers or to the competent authorities,
constitute the crime of estafa (U. S. vs. Dacanay, Phil. 617.)" (Book Two, Part II,
Francisco's Penal Code, P. 1098.) (Ricafort v. Fernan, G.R. No. L-9789 May 25, 1957)

21. What are the elements of estafa by misappropriating or converting money or goods
received in trust or commission or for administration, or under any other obligation
involving the duty to deliver or return (See 315[1][b], Ramos v. CA, G.R. No. 39922-25,
August 21, 1987)?

Article 315, par. 1 (b) of the Revised Penal Code, to prove the essential elements thereof,
numbering four, to wit: (1) that the accused received the thing subject of the offense; (2)
that the thing received is personal property susceptible of appropriation; (3) that the thing
was received for safe-keeping, or on commission, or for administration, or under any
other obligation involving the duty to make delivery of or return the same; and (4) that
there was misappropriation or conversion by the accused of the thing received to the
prejudice of another. (Ramos v. CA, G.R. No. 39922-25, August 21, 1987)

22. The appropriation or conversion of money or property received to the prejudice of the
owner is the essence of estafa through misappropriation. Define the word “convert” and
“misappropriate.”

Paragraph (b), Subdivision No. 1 of Art. 315, was taken by the Code Commission from
paragraph 5 of Art. 535 of the Spanish Penal Code of 1870 which used the words
"apropiaren" and "distrajeren" which are translated into English with the words
"misappropriating" and "converting," respectively. The word converting ("distraer")
connotes the act of using or disposing of another's property as if it were one's own. The
word misappropriating ("apropiar") means to own, to take something for one's own
benefit. The words "convert" and "misappropriated" connote an act of using or disposing
of another's property as if it were one's own or devoting it to a purpose or use different
from that agreed upon. To misappropriate for one's own use includes, not only conversion
to one's personal advantage but also every attempt to dispose of the property of another
without right. (U.S. vs. Panes, 37 Phil. 118; Amorsolo vs. People, 154 SCRA 666)

The words 'convert' and 'misappropriate' connote 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. To misappropriate for one's own use includes not only conversion
to one's personal advantage, but also every attempt to dispose of the property of another
without right. In proving the element of conversion or misappropriation, a legal
presumption of misappropriation arises when the accused fails to deliver the proceeds of
the sale or to return the items to be sold and fails to give an account of their whereabouts.
(Coson v. People, G.R. No. 218830, September 14, 2017)

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23. What are the elements of estafa by taking undue advantage of signatures in blank (Art.
315 [1][c])?

The Elements of estafa by taking undue advantage of the signature in blank are: (1) That
the paper with the signature of the offended party be in blank. (2) That the offended party
should have delivered it to the 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.

24. What are the elements in estafa by false pretenses or fraudulent representations (Art. 315
[2][a])?

The elements in estafa by false pretenses or fraudulent representations are: (1) using
fictitious name; (2) falsely pretending to possess: (a) power, (b) influence, (c)
qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions;
or (3) by means of other similar deceits.

25. What are the elements of estafa by issuing or post dating checks without funds (Art. 315
[2][d], as amended)?

The elements of estafa by issuing or postdating checks without funds are: (1) The
offender has postdated or issued a check in payment of an obligation contracted at the
time of the postdating or issuance; (2) at the time of postdating or issuance of said check,
the offender has no funds in the bank or the funds deposited were not sufficient to cover
the amount of the check; (3) the payee has been defrauded.

26. (a) Is it essential that the check be issued in payment of a simultaneous obligation to
constitute estafa under Art 315 (2)(d)? Explain.

(b) Is there estafa if the check was issued in payment of a pre-existing obligation?
Explain.

(c) Is there estafa if the accused issued a check in payment of a promissory note which
matured and the check was dishonored? Explain.

(d) Is there estafra if a check was issued as a mere guarantee (See People v. Tan, [CA]
75 O.G. 1634).

(e) Is there estafa if the payee of the check knew that the drawer has no sufficient funds
to cover the post dated checks at the time of their issuance (See People v. Nepomuceno,
CA – G.R. No. 00255-CR, June 23, 1965)?

(f) Is estafa committed if the drawer knowing he did not have sufficient funds in the
bank when he issued a check, postdated or not, made representations to the payee that
the check was good, thereby inducing the payee to accept the check in payment of an
obligation?

(a) Yes, it is essential that the check be issued in payment of a simultaneous obligation to
constitute estafa. Damage and deceit are essential elements of the offense and must be
established with satisfactory proof to warrant conviction, while the false pretense or

11
 fraudulent act must be committed prior to, or simultaneous with, the issuance of the bad
check (People v. Juliano, G.R. No. 134120, January 17, 2005)

(b) No. There is no false pretense or fraudulent act if a postdated check is issued in
payment of a pre-existing obligation.15 As the Court emphasized in Timbal v. Court of
Appeals: “In order to constitute Estafa under the statutory provisions, the act of
postdating or of issuing a check in payment of an obligation must be the efficient cause of
the defraudation; accordingly, it should be either prior to or simultaneous with the act of
fraud. In fine, the offender must be able to obtain money or property from the offended
party by reason of the issuance, whether postdated or not, of the check. It must be shown
that the person to whom the check is delivered would not have parted with his money or
property were it not for the issuance of the check by the other party.” (Recuerdo v.
People, G.R. No. 168217 June 27, 2006)

(c) There’s no estafa if the accused issued a check in payment of a promissory note which
matured and the check was dishonored Thus, when a person purchased merchandise,
signed a promissory note therefor, and on the date of maturity he gave a check for the
amount stated in the promissory note, but the check was dishonored by the bank for lack
of funds, that person is not liable for estafa. (People vs. Canlas, C.A., 38 O.G. 1092)

(d) there’s no estafa if a check was issued as a mere guarantee. When the accused was
persuaded to act merely as a guarantor by guaranteeing by means of a check, the payment
of the materials ordered by another person, a fact which was known to the vendor of the
materials, and the check issued was dishonored for lack of funds, the accused is not guilty
of estafa. The check was not issued in payment of an obligation. (People vs. Suarez, 2
C.A. Rep. 982)

(e) There’s no estafa if the payee of the check knew that the drawer has no sufficient
funds to cover the postdated checks at the time of their issuance becausethe payee's
knowledge that the drawer has no sufficient funds to cover the postdated checks at the
time of their issuance negates estafa.

(f) Yes, Estafa is committed if the drawer knowing he did not have sufficient funds in
the bank when he issued a check, postdated or not, made representations to the
payee that the check was good because Estafa by issuing post dated checks is committed
by when: (1) The offender has postdated or issued a check in payment of an obligation
contracted at the time of the postdating or issuance; (2) at the time of postdating or
issuance of said check, the offender has no funds in the bank or the funds deposited were
not sufficient to cover the amount of the check; (3) the payee has been defrauded. If from
the start, when he issued the check, he knew that he has insufficient funds, yet he said
that the check is good, there is fraud, thus all elements of estafa are present.

27. What is the difference between estafa under Art. 315, par. 1(b) and estafa under Art 315,
par. 2 (a)?

In estafa with abuse of confidence under subdivision No. 1, par. (b), of Art. 315, the
elements are: (1) That money, goods, or other personal property be received by the
offender in trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same; (2) That there be
misappropriation or conversion of such money or property by the offender, or denial on

12
 his part of such receipt; (3) That such misappropriation or conversion or denial is to the
prejudice of another; and (4) That there is a demand made by the offended party to the
offender. While The elements in estafa by false pretenses or fraudulent representations
are: (1) using fictitious name; (2) falsely pretending to possess: (a) power, (b) influence,
(c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary
transactions; or (3) by means of other similar deceits. Deceit is not an essential requisite
of estafa with abuse of confidence. It will be noted that "abuse of confidence" and
"deceit" are two different means of committing estafa under Art. 315. Where there is
fraudulent conversion or misappropriation of the property received in trust, on
commission, for administration, or under any other obligation involving the duty to make
delivery of or to return the same, deceit is not an essential element of estafa. While in the
prosecution for estafa under Article 315, paragraph 2(a) of the Revised Penal Code, it is
indispensable that the element of deceit, consisting in the false statement or fraudulent
representation of the accused, be made prior to, or, at least simultaneously with, the
delivery of the thing by the complainant, it being essential that such false statement or
fraudulent representation constitutes the very cause or the only motive which induces the
complainant to part with the thing. If there be no such prior or simultaneous false
statement or fraudulent representation, any subsequent act of the accused, however
fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for that
class of estafa. (People vs. Gines et al., C.A., 61 O.G. 1365)

28. What are the elements of estafa or swindling through issuance of a bouncing check?

The elements of estafa by issuing or postdating checks without funds are: (1) The
offender has postdated or issued a check in payment of an obligation contracted at the
time of the postdating or issuance; (2) at the time of postdating or issuance of said check,
the offender has no funds in the bank or the funds deposited were not sufficient to cover
the amount of the check; (3) the payee has been defrauded.

29. What are the acts penalized by B.P. Blg. 22?

The acts penalized by B.P. Blg. 22 are: (1) By making or drawing and issuing any check
to apply on account or for value, knowing 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, which 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 drawer, without any valid reason, ordered the bank to stop payment. (2) Having
sufficient funds in or credit with the drawee bank when he makes or draws and issues a
check, by failing to keep sufficient funds or to maintain a credit to cover the full amount
of the check if presented within a period of ninety (90) days from the date appearing
thereon, for which reason it is dishonored by the drawee bank.

30. (a) If the payee is aware of the insufficiency or lack of fund in the bank to cover the
check at the time it was issued, may the drawer be held liable for violation of B.P. Blg.
22? Explain.

(b) May said payee be liable for estafa? Explain.

(a) Yes, the drawer may be held liable for violation of B.P. Blg. 22. The elements of the
crime are: (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
13
 had not the drawer, without any valid reason, ordered the bank to stop payment.
Gravamen of BP 22 is the issuance of a check, not the nonpayment of an obligation.
(Lozano vs. Martinez, 146 SCRA 323) The law has made the mere act of issuing a bum
check a malum prohibitum. (People vs. Laggui, 171 SCRA 305; People vs. Manzanilla,
156 SCRA 279) Thus, since it’s a malum prohibitum, when he issued the check knowing
that he has insufficient funds, he violated BP 22.

(b) Payee may only be held liable if he’s aware of the insufficiency and use such check to
purchase. One who got hold of a check issued by another, knowing that the drawer had
no sufficient funds in the bank, and used the same in the purchase or goods, is guilty of
estafa. (People vs. Isleta, et al., 61 Phil. 332)

31. How are the other forms of swindling committed under Art 316, RPC?

The Elements of other forms of swindling committed under Art 316, RPC are: (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 should represent 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.

32. What are the elements of estafa by pretending to be the owner of real property under Art.
316, par 1?

Article 316, No. 1 of the Revised Penal Code, penalizes only a person who pretends to be
the owner and not one who claims to be the owner. Where the accused claims to be the
owner of a parcel of land, and especially where his ownership is evidenced by a
Certificate of Title, it cannot be said that he pretended to be the owner thereof, even if his
ownership is defective and he may be compelled to return the property to the person
found to be the owner of the property. (People vs. Adriatico, 15 C.A. Rep. 1002)

33. What are the elements of estafa by disposing real property knowing the same to be
encumbered under Art. 315, par. 2, RPC?

The elements of estafa by disposing real property knowing the same to be encumbered
under Art. 315, par. 2, RPC are: (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 should
represent 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.

34. What are the elements of estafa by means of swindling a minor under Art. 317, RPC?

The elements of estafa by means of swindling a minor under Art. 317, RPC are: (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. And (4) That the transaction is to the
detriment of such minor.

35. What are the acts punished in other deceits under Art. 318, RPC?

The acts punished in other deceits under Art. 318, RPC are: (1) By defrauding or
damaging another by any other deceit not mentioned in the preceding articles. (2) By

14
 interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of
the credulity of the public in any other similar manner, for profit or gain.

36. What are the elements of the first and second paragraphs of the crime of removal, sale or
pledge of mortgaged property under Art. 319, RPC?

Acts punishable under Art. 319: are: (Paragraph 1) By knowingly removing any personal
property mortgaged under the Chattel Mortgage Law to any province or city other than
the one in which it was located at the time of execution of the mortgage, without the
written consent of the mortgagee or his executors, administrators or assigns. And
(Paragraph 2) By selling or pledging personal property already pledged, or any part
thereof, under the terms of the Chattel Mortgage Law, without the 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 of the province where such property is located.

The elements of Paragraph 1 are as follows: (1) That personal property is mortgaged
under the Chattel Mortgage Law. (2) That the offender knows that such property is so
mortgaged. (3) That he removes such mortgaged personal property 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, administrators or assigns to such removal.

The elements of Paragraph 2 are as follows: (1) That personal property is already pledged
under the terms of the Chattel Mortgage Law. (2) That the offender, who is the mortgagor
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.

15