CRIMES AGAINST PROPERTY
The elements of robbery are:
1. Intent to gain (animus lucrandi).
Intent to gain means to obtain from the appropriation of the things some utility, advantage or benefit. It is not necessary that the gain be realized as mere intent is enough. (Cuello Calon, II, p. 803) The animus lucrandi must exist prior to or at least, coetaneously with the unlawful taking.
By “gain” is meant not only the acquisition of a thing useful to the purpose of life but also the benefit which in any other sense may be derived or expected from the act which is performed. So, the accused who took the car from the garage and used it to take their lady friends and others for a ride, derived gain from the use of this means of transportation. (People v. Fernandez, 38 OG 985)
2. Unlawful taking (sometimes called asportation).
Unlawful taking means appropriating a thing belonging to another and placing it under one’s control or possession. This is complete upon the material occupation of the thing by the offender and placing it under his control with ability to dispose of it. (US v. Adiao, 38 Phil. 754) Placing it under one’s control or possession for a period more or less permanent.
3. Personal property.
4. Violence against or intimidation of any person; or force upon things.
When violence or intimidation and force upon things are both present in the robbery, the crime is complex under Article 48. In robbery with violence or intimidation, the taking is complete when the offender has already the possession of the thing even if he has no opportunity to dispose of it. In robbery with force upon things, the things must be brought outside the building for consummated robbery to be committed.
One who obtains money from the victim by pretending to be a peace officer is guilty of robbery. (People v. Sope, 75 Phil. 80) There is intimidation as long as the acts of the offense would create fear in the mind of the victim. (Q6, 1992 Bar)
There is robbery with force upon things only when the doors or windows are broken in order to enter a building to steal or when doors or wardrobes are broken inside a building. (People v. Adorno, 40 OG 567)
ROBBERY WITH VIOLENCE OR INTIMIDATION OF PERSONS
1. When by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when robbery shall have been accompanied by rape or intentional mutilation or arson.
This is a special complex crime because the specific penalty is provided by law. To constitute robbery with homicide, both the robbery and the homicide must be consummated. In robbery with homicide, the number of persons that have been killed is immaterial. (People v. Barruga, 61 Phil. 318) If the motive is to kill and the taking is committed thereafter, the crimes committed are homicide and theft. (People v. Elizaga, 86 Phil. 364) The term “homicide” is used in a generic sense and includes any death caused by the offender by reason or on the occasion of the robbery. (People v. Ampo-an, 187 SCRA 173)
Where there may have been an appreciable interval of time between the robbery and the killing on one hand and the rape, on the other, since there was a direct relation, an intimate connection between them, the homicide and the rape were committed by reason or on the occasion of the robbery. The legal definition of the crime is robbery with homicide, with rape considered as an aggravating circumstance. (People v. Tapales, 93 SCRA 134)
Robbery with homicide and carnapping were the crimes committed when, during a purported routine vehicle inspection by military men, the accused divested the motorists of their valuable and unlawfully assaulted one of them who eventually died, and thereafter fled with the victim’s motor vehicle. (People v. Cayanan, June 16, 1995)
Whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the crime will also be guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide. (People v. Navasca, 76 SCRA 70) (Q7, 1995 Bar; Q17, 1999 Bar)
When the victims in a robbery case were detained in the course of the robbery, the detention is absorbed by the crime of robbery. The detention is only incidental to the main crime of robbery. (People v. Astor, 71765, April 29, 1987)
Article 294 does not differentiate “whether rape was committed before, during or after the robbery”. It is enough that robbery accompanied the rape. (People v. Caisip, 105 Phil. 1180) However, robbery must not be a mere accident or afterthought. (Q19, 1997 Bar) There is no crime of robbery in band with multiple rape. The crime is robbery with rape, with band as a mere aggravating circumstance, as where several armed men committed robbery and four of them took turns in sexually abusing the victim of robbery. (People v. Lutao, Nov. 16, 1995)
Members of a group of robbers are liable for robbery with homicide if in the course of the robbery they shot and killed one of their group. (People v. Calixto, 123 SCRA 369)
The information in robbery with rape need not be filed by the offended party because this is not a private offense. It is a public offense, not two distinct offenses but as an indivisible complex crime penalized with a single penalty. (People v. De Guzman, 70 Phil. 23)
2. When by reason or on the occasion of such robbery, serious physical injuries (insane, imbecile, impotent or blind) shall have been inflicted.
3. When by reason or on the occasion of the robbery serious, physical injuries (lost the use of speech, or the power to hear, smell or lost an eye, etc.) shall have been inflicted.
4. If the violence or intimidation employed is clearly unnecessary for the commission of the crime, or when in course of its execution, serious physical injuries, penalized in Article 263, pars. 3 and 4, shall have been inflicted upon any person not responsible for the commission of the robbery.
Where on the occasion of a robbery by a band, one of the victims was brought to a nearby forest and tied to the trunks of the trees, it was held that the restraint of liberty constitutes robbery with unnecessary violence. (People v. Manzanilla, 43 Phil. 167)
But if serious physical injuries as defined in pars. 3 and 4 result from the violence employed upon a person not responsible for the commission of the robbery, after the taking is complete, two crimes are also committed, to wit: (a) robbery; (b) serious physical injuries because the paragraph provides that such serious physical injuries must be inflicted in the course of the commission of the robbery. Also, if the victim is one of the robbers, two crimes are committed, to wit: (a) robbery, (b) serious physical injuries because the robber is the one responsible for the commission of the robbery.
5. Other cases of violence or intimidation. (Art. 294, as amended by RA 7659)
a. Snatching money from the hands of the victim and pushing her as a result of which her skirt was torn and she fell on the ground. (US v. Samonte, 8 Phil. 286)
b. Intimidating the victim with a revolver. But where there is no violence exerted to accomplish the snatching, the crime committed is not robbery but simple theft. (People v. Joson, 7 CAR 221)
c. One who obtains money from the victim by pretending to be peace officer is guilty of robbery. (People v. Sope, 75 Phil. 80)
ROBBERY WITH FORCE UPON THINGS
1. If the force upon things was employed to effect entrance into the inhabited house or public building by any of the four modes:
a. Through an opening not intended for entrance or egress.
b. By breaking any wall, roof, or floor or breaking any door or window.
Prying a sliding door from its groove where entrance was effected is not breaking. The words “breaking of a door or window” imply more than mere “forcing of a door or window.” (People v. Fernandez, 58 Phil. 674) The door refers to an outside door to enter the building.
c. By using false keys, picklocks or similar tools.
d. By using any fictitious name or pretending the exercise of public authority.
2. Having gained entrance into the inhabited house or public building outside of these four modes:
a. By breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building.
b. By taking such furniture or objects to be broken or force open outside the place of robbery. (Art. 299)
If such object is found outside and then broken open, the crime is theft.
Outside of these cases, the crime committed will be theft and not robbery although there is force upon things. Thus, the following were held to constitute theft: (1) where the offender entered the dwelling by passing through the doors which were open or not secured by a lock or bolt, and (2) where the accused broke the show window without entering the building but merely introduced his hand and abstracted the watches therefrom. (People v. Adorno, 40 OG 567) Also, where the accused entered a church while open, and remained inside until it was closed for the night, then took valuable objects and destroyed the lock of the door to get out, theft not robbery is committed. (People v. Espiridion, CA IV)
ANTI-CARNAPPING ACT (RA 6539, as amended, Aug. 26, 1972)
Carnapping the taking with intent to gain, of a motor vehicle belonging to another person, without the latter’s consent or by means of violence or intimidation of person or by using force upon things.
A motor vehicle is any vehicle propelled by power; this include a tricycle. Any vehicle which is motorized using the streets which are public.
The penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. (Sec. 14, as amended by RA 7659)
Brigands (highway robbers) is when more than 3 armed persons form a band of robbers for the purpose of committing robbery in the highway, or kidnapping persons for the purpose of extortion or to obtain ransom or for any other purpose to be attained by means of force and violence. If any of the arms carried by any said persons be an unlicensed firearms, it shall be presumed that said persons are highway robbers or brigands. (Art. 306)
The crime is committed by mere conspiracy to commit the acts of brigandage. The main object of the law was to prevent the formation of such bands. (US v. Decusin, 2 Phil. 536)
If the robbers in band should commit robbery (Art. 295), should kidnap (Art. 267), or do any criminal act by force or violence, penalized by a greater penalty, those responsible shall be prosecuted under said law and penalized accordingly.
The fact that 5 defendants armed with guns and knives, assaulted the store of a Chinaman by means of violence or intimidation and took away personal properties and money did not necessarily make them a band of brigands in the absence of showing of conspiracy to commit acts of brigandage. They are guilty, however, of robbery in band. (US v. Feliciano, 3 Phil. 422)
If the brigands, on the other hand, actually committed kidnapping for ransom, etc., then PD 532 will apply.
Distinction: (Q15, 2000 Bar)
|Highway Robbery (PD 532)||Robbery committed on highway|
|1. Robbery is committed indiscriminately against persons who commute in such highways.||1. Robbery is committed only against predetermined victims.|
|2. When the offender is a brigand or one who roams in public highways and carries out his robbery.||2. Commission in public highway is only incidental and the offender is not a brigand.|
|3. There is frequency in the commission of robbery in public highways and against persons travelling thereat.||3. Only occasional against a predetermined victim.|
Highway robbery or brigandage is more than ordinary robbery committed in a highway. The purpose of brigandage is indiscriminate robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or robbery in band if there are at least 4 armed participants. (US v. Feliciano, 3 Phil. 422)
ANTI-HIGHWAY ROBBERY LAW (PD 532, Aug. 8, 1974)
Highway robbery is the seizure of any person for ransom, extortion or other unlawful purpose, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means, by any person on any Philippine highway.
Where the victim of a highway robbery was killed, the crime committed is highway robbery with homicide which is punished by the indivisible penalty of death. (People v. Matilla, Jr., 105 SCRA 769)
It is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take the personal property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner.
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him.
A cow that entered offender’s plantation was killed. The meat was then appropriated and distributed. The crime committed is theft. (People v. Murillo, CA, 4273) Under PD 533, the crime would be cattle-rustling.
3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to another and without consent of its owner, shall hunt or fish upon the same or gather fruits, cereals, or other forest or farm products. (Art. 308)
Where the accused drove a parked vehicle for fear that the people coming out of a bowling alley might harm him, since he did not drive it for joy or pleasure, theft is not committed. (People v. Antonio, 12525, Aug. 12, 1975) However, intent to gain is presumed from the unlawful taking of personal property belonging to another. (People v. Sia, 54 Phil. 52)
The subject of theft is personal property like electric current. Theft of electricity can be effected even without illegal or unauthorized installations as for instance:
1. Turning back dials of the electric meter.
2. Fixing the electric meter in such manner that it will not register the actual electric consumption.
3. Under reading of electric consumption.
4. Tightening screw of rotary blades to slow down rotation of the same. (People v. Relova, 45129, March 6, 1987)
PD 534, as amended, punishes any person who shall catch, take or gather fishery or aquatic products in Philippine water with the use of explosives, obnoxious or poisonous substance or the use of electricity.
It is qualified if any of the following circumstances is present (the penalty is next higher by 2 degrees):
1. If the offender is a domestic servant.
The offended party may be the master or even a third person, as a guest in the house, where the offender is working as a domestic servant. (Cuello Calon,II, pp. 759-796) The room boys in a hotel are embraced within the term. (Dec. Sup. Ct. of Spain, July 8, 1919)
2. If it is committed with grave abuse of confidence.
Where only the material possession is transferred, conversion of the property gives rise to the crime of theft; where both material and juridical possession are transferred, misappropriation of the property would constitute estafa. The juridical possession contemplated for the estafa refers to the delivery of the thing to the offender in trust, or on commission, or for administration or under any other circumstance involving the duty to deliver or return the same thing received. So, the crime committed by a bank teller of the money turned over to him by a depositor is theft. (People v. Lacson, 57 Phil. 325)
3. By the nature of the property, which is either:
a. Motor vehicle
b. Mail matter
c. Large cattle
d. Coconuts taken from a plantation.
e. Fish taken from a fishpond or fishery
In spite of the carnapping law and the anti-cattle rustling law, there may be qualified theft of a motor vehicle or large cattle, if such is not taken but is received by the offender where only the material possession thereof has been transferred and who misappropriates it. Large cattle includes cow, carabao, horse, or other domesticated member of the bovine family. Goats are not large cattle. (Q4, 1992 Bar)
4. Illegal logging (People v. Hon. Genato, 75 OG 970). PD 705 (Revised Forestry Code), in Section 68 thereof provides that the cutting, gathering and/or collecting timber without license shall be punished as qualified theft.
5. Property is taken on occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (Art. 310)
OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS
Any person who, by means of violence against or intimidation of persons, shall take possession of any real property or shall usurp any real rights in property belonging to another. (Art. 312)
In this case, there must be intent to gain. Charge with the crime of usurpation of real property by means of violence with threats, accused was convicted of the complex crime of grave threats and usurpation of real property. Held: The crime is usurpation of real property only as the threat is the intimidation contemplated in the crime. It is not a distinct crime. (Castrodes v. Hon. Cubelo, 47033, June 16, 1978)
The crime would still be usurpation of real rights even if the offenders killed the caretaker because the killing is the violence against persons which is the means for committing the crime and as such, determinative only. However, this gives way to the proviso that the penalty provided therein is “in addition to the penalty incurred in the acts of violence (homicide) executed by him.” The crime is similar to a robbery where the killing is committed by reason thereof, giving rise only to one indivisible offense. (People v. Judge Alfeche) (Q17, 1996 Bar)
PD 772 (1975) punishes any person, who with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner, succeeds in occupying or possessing the property of the latter against his will for residential, commercial or any other purposes.
It is committed by defrauding another by any of the following means
1. With unfaithfulness or abuse of confidence.
a. By altering the substance, quantity, or quality of anything of value which the offender shall deliver by virtue of any obligation to do so, even though such obligation be based on an immoral or illegal consideration.
The offender does not receive but delivers a thing under an onerous obligation which is not in accordance with the substance, quantity or quality agreed upon. If the consideration is gratuitous, there can be no defraudation.
b. By misappropriating or converting, to the prejudice of another, 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.
Misappropriation of a piano by a repairer is estafa not theft because material (physical) and judirical possession passed to the repairer since he may retain the thing repaired even against the owner pending payment of the cost of the repair. (32 Am. Jur. 922) The juridical possession contemplated for the estafa refers to the delivery of the thing to the offender in trust, or on commission, or for administration or under any other circumstance involving the duty to deliver or return the same thing received. (Q4, 1992 Bar; Q19, 1991 Bar)
Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. In a case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees. Petitioner therein being a mere custodian had no juridical possession over missing funds. Hence, the element of juridical possession being absent, petitioner cannot be convicted of the crime of estafa. (Chua-Burce v. CA, 109595, April 27, 2000)
The elements in this kind of estafa are:
1) Accused should have received the thing and not taken from the owner thereof.
2) The thing received should be a personal property susceptible of appropriation.
3) The thing be received for safekeeping or on commission or for administration, or under any other obligation involving the duty to make delivery or to return the same, and
4) That there be misappropriation or conversion by the accused of the thing received to the prejudice or injury of another. (Ramos v. CA, 39922, Aug. 21, 1987)
5) Previous demand for the return of the property. (People v. Pendon, 53 OG 174)
Conversion presupposes that the thing has been devoted to a purpose that is different from that agreed upon. (People v. Nepomuceno, 46 OG 6128) Misappropriation connote an act of using or disposing of money, goods or any other personal property belonging to another for his personal benefit. A mere failure to return the goods is not sufficient proof of conversion. (US v. Morales, 15 Phil. 236) Personal benefit is not, however, an element of the crime of estafa. (Q2, 1990 Bar)
Failure of the trustee to account for the goods covered by a trust receipt and for the proceeds thereof, upon lawful demand by the bank that issued it, constitutes estafa. (PNB v. Arrazal, 8831, March 28, 1953) A trust receipt arrangement does not involve merely a simple loan transaction but includes likewise a security feature where the creditor bank extends financial assistance to the debtor-importer in return for the collateral/security title as to the goods or merchandise being purchased or imported. What is being penalized under PD 115 (Trust Receipt Law) is the misuse or misappropriation of the goods or proceeds realized from the sale of the goods, documents or instruments which are being held in trust for the entrustee-banks. In other words, the law punishes the dishonesty and abuse of confidence in the handling of money or goods to the prejudice of the other, and hence there is no violation of the right against imprisonment for non-payment of debt. (People v. Nitafan, 207 SCRA 725) (Q8, 1995 Bar)
Money market placement or transaction partakes of the nature of a loan, such that non-payment thereof would not give rise to estafa through misappropriation or conversion. In money market placement, there is transfer of ownership of the money invested and therefore the liability for its return is civil in nature. (Perez v. CA, 127 SCRA 636) (Q10, 1996 Bar)
c. By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature, to the prejudice of the offended party or any third person.
2. False pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud.
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.
When a person uses a fictitious name publicly, not with the intention to defraud, but for the purpose of concealing a crime, evading the execution of a judgment, he does not commit estafa but the crime of using a fictitious name penalized by Article 178.
b. By altering the quality, fineness, or weight of anything pertaining to his art or business.
This kind of estafa is usually committed by jewelers and silversmiths who defraud their customers by altering the quality, fineness, or weight of anything pertaining to their art or business.
c. By pretending to have bribed any Government employee.
A person who asked a sum of money allegedly for the purpose of bribing a government employee for the benefit of the offended party but who thereafter converted the same to his own, commits estafa.
d. By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check. Failure of the drawer of the check to deposit the amount necessary to cover his check within 3 days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds, shall be prima facie evidence of deceit constituting false pretense or fraudulent act.
The elements are:
1) The offender has postdated or issued a check in payment of an obligation contracted at the time of postdating or issuance of such check.
2) That at the time of the 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 the check was issued in payment of a pre-existing obligation, there is no estafa, because the accused obtained nothing for said check, his debt for the payment thereof of said check when issued, had been contracted prior to the issuance. (People v. Villarama, 75 OG 1932) The payee’s knowledge that the drawer has no sufficient funds to cover the postdated checks at the time of their issuance negates estafa. (People v. Nepomuceno, 00255, June 23, 1965)
|1. Drawer and indorsers are liable.||1. Only the drawer is liable.|
|2. The issuance of the check should be the means to obtain the valuable consideration from the payee.||2. Mere issuance of bad check constitutes the crime, thus, even checks issued for pre-existing obligation are covered.|
|3. Crime is a malum in se which requires intent, thus, good faith or lack of intent to deceive is a defense.||3. Crime is a malum prohibitum, hence, good faith is not a defense.|
|4. Crime against property.||4. Regarded as a crime against public interest.|
|5. False pretense or deceit and intent to cause damage are essential.||5. Deceit and damage are not elements.|
|6. Given 3 days from notice to make good the value of the check.||6. Given 5 banking days from notice to make good the value thereof.|
In BP 22, what is punished is the mere issuance of a check without sufficient funds.
A bad check passer may be prosecuted both for estafa under the RPC and under BP 22. This instance may arise when the bouncing check is issued to pay an obligation incurred simultaneously with or in consideration of the check.
Stopping payment of a check is estafa if 2 elements are present:
1) He had intention of stopping payment of the check at the time of the issuance.
2) He did not return the amount he received for such check. (US v. Poe, 39 Phil. 466)
e. By obtaining any food, refreshment or accommodations at a hotel, inn, restaurant, boarding house, lodging house or apartment house and the like without paying thereof, xxx.
The above provisions refers only to hotels, motels, inns and lodging houses for transient guests and not to leased premises like a house. (Mayer v. Judge Herrera, 78 OG 6325)
3. Through any of the following fraudulent means.
a. By inducing another, by means of deceit, to sign any document.
Where the defendant induced the illiterate owners of 3 parcels of land to sign a deed of sale instead of a power of attorney which he has been asked to prepare, estafa was held committed.(US v. Malong, 36 Phil. 821)
b. By resorting to some fraudulent practice to insure success in a gambling game.
c. By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other paper. (Art. 315)
A bookkeeper who destroyed the chits evidencing his purchase of merchandise was held guilty of estafa through falsification. (People v. Dizon, 47 Phil. 350)
The elements of estafa:
1. Deceit or abuse of confidence.
Deceit may consist in a misrepresentation. It may also consist of any trick, artifice, machination or device. 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 v. Manahan, 19602, May 29, 1958)
Non-compliance of a promise to perform a thing does not constitute deceit. (People v. Villarin, 50 OG 262)
There is no such crime as estafa through negligence. In estafa, the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in allowing another to take advantage of or benefit from the entrusted channel cannot constitutes estafa. (People v. Nepomuceno, CA 46 OG 6135) (Q14, 1999 Bar)
2. Damage or prejudice to the offended party.
Actual or real damage is not necessary. It may consist in mere disturbance of the property rights of the offended party as long as it is capable of pecuniary estimation or even in temporary prejudice. So, even if the chattel constituting the object of the deception is recovered, there is damage. (US v. Goyonechea, 9 Phil. 117) (Q13, 1997 Bar)
In all cases of estafa, mere intent to cause damage is sufficient, except in paragraph 1(b) where the damage cannot be “potential or speculative” since the property involved belongs to the offended party. (Castillo v. People, 73 Phil. 480)
Where there is no damage, the estafa may either be attempted or frustrated. If deceit is present but no damage is caused because the offended party is aware of the deception and because the giving of the money is merely for entrapment, attempted estafa is committed as the act of the accused in receiving the marked money is an intent to defraud. (US v. Villanueva, 1 Phil. 370)
REMOVAL, SALE OR PLEDGE OF MORTGAGED PROPERTY
Ways of committing:
1. Any person who shall knowingly remove 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 the execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns.
2. Any mortgagor who shall sell or pledge personal property already pledged; or any part thereof, under the terms of the Chatter Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record hereof in the office of the Register of Deeds of the province where such property is located. (Art. 319)
In the first paragraph, the removal must be coupled with an intent to defraud or the removal is not justified. A defendant who removed his piano from the City of Manila where it was located at the time of the constitution of the Chattel Mortgage and brought it to Capiz, without the consent of the mortgagee was held guilty under paragraph 1 of this Article. (US v. Rimon, 23 Phil. 13) But if the transfer is due to a change of residence, this crime is not committed as fraud is not present. (People v. Mata, 58 OG 6287)
Even if the mortgage debt has been paid after the mortgaged property has been wrongfully disposed of by the mortgagor, such will not relieve him from the criminal responsibility for the offense committed by him. (US v. Kilayko, 32 Phil. 614)
Any person who shall burn:
1. One or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings, or committed on several or different occasions.
2. Any building of public or private ownership, devoted to the public in general or where people usually gather or congregate for a definite purpose xxx, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyance or stop terminals, xxx.
3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment or leisure.
4. Any building, factory, warehouse installation and any appurtenance thereto, which are devoted to the service of public utilities.
5. Any building the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance. (Q6, 1994 Bar)
6. Any arsenal shipyard, storehouse or military powder or fireworks factory, ordnance, storehouse, archives or general museum of the Government.
7. In an inhabited place, any storehouse or factory of inflammable or explosive materials. (Art. 320)
Arson is the destruction of property by means of fire. The liability is determined by the following:
1. Kind and character of building.
2. Its location.
3. Extent of damage.
4. Whether inhabited or not.
For setting fire to the house with the resulting death of the child, they are guilty of arson, not murder. Murder or homicide in a judicial sense would exist if the killing were the objective of the malefactors and the burning of a building were resorted to only as the means of accomplishing his purpose. The rule is otherwise when arson, as in this case, is itself the end, and the death is a mere consequence. (People v. Paterno, 47 OG 4600)
If burning the cottage to hide the killing of the victims, two crimes are committed: (1) arson, and (2) homicide/murder. The act of burning was not necessary for the consummation of the homicide. There is no complex crime of arson with homicide. (Q12, 1995 Bar)
The act of placing gasoline soaked articles in the ceiling is an overt act, and it has a direct connection to the perpetration of the crime of arson and even if no blaze was started, attempted arson is committed. (People v. Go Kay, 17474, Dec. 19, 1957)
Corpus delicti is established in arson by proving 2 elements:
1. Burning of the house or other things.
2. Criminal agency in causing it. (People v. Garcia, 49 OG 588)
The malicious burning of a banca, which is the property of another, constitutes the offense of arson under Article 322.
Any person who deliberately causes damage to property of another by any act not constituting arson or crimes of destruction due to hate, revenge or mere pleasure of destroying, is liable for malicious mischief. (Art. 327)
One who shoots a pig walking in the middle of the road for the pleasure of testing the potency of his newly acquired rifle is guilty of malicious mischief. (People v. Conde, 69 OG 971) Malicious mischief being deliberate cannot be committed thru negligence.
PERSONS EXEMPT FROM CRIMINAL LIABILITY
No criminal, but only civil liability, shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in the same line.
2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another.
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
The exemption established by this article shall not be applicable to strangers participating in the commission of the crime. (Art. 332)
Stepfather being an ascendant by affinity is included in the exemption. (People v. Hamaam, 74 OG 8469) The term “spouse” embraced common law relationship. (People v. Constantino, 60 OG 3603)