Burden of proof is upon fence to overcome presumption; if explanation insufficient or unsatisfactory, court will convict. This is a malum prohibitum so intent is not material. But if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling.
When there is notice to person buying, there may be fencing such as when the price is way below ordinary prices; this may serve as notice. He may be liable for
fencing even if he paid the price because of the presumption.
Cattle Rustling and Qualified Theft of Large Cattle – The crime of cattle-rustling is defined and punished under Presidential
Decree No. 533, the Anti-Cattle Rustling
law of 1974, as the taking by any means, method or scheme, of any large cattle, with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things, so long as the taking is without the consent of the owner/breed thereof. The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner.
Since the intent to gain is not essential, the killing or destruction of large cattle, even without taking any part thereof, is not a crime of malicious mischief but cattle- rustling.
The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended Articles 309 and 310. Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle. Where the large cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is not cattle-rustling; it is qualified theft of large cattle.
Where the large cattle was received by the offender who thereafter misappropriated it, the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him. If both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under Article 315 (1b).
Presidential Decree No. 533 is not a special law in the context of Article 10 of the Revised Penal Code. It merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended Article 309 and 310. This is explicit from Section 10 of the Presidential Decree. Consequently, the trial court should not have convicted the accused of frustrated murder separately from cattle- rustling, since the former should have been absorbed by cattle-rustling as killing was a result of or on the occasion of cattle- rustling. It should only be an aggravating circumstance. But because the information did not allege the injury, the same can no longer be appreciated; the crime should, therefore be only, simple cattle-rustling.
(People v. Martinada, February 13, 1991)
Article 310. Qualified Theft
Theft is qualified if
1. Committed by a domestic servant; 2. Committed with grave abuse of
confidence;
3. The property stolen is a motor vehicle, mail matter, or large cattle; 4. The property stolen consists of
coconuts taken from the premises of a plantation;
5. The property stolen is fish taken from a fishpond or fishery; or
6. If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident, or civil disturbance.
Article 311. Theft of the Property of the National Library or National Museum
If the property stolen is any property of the National Library or of the National Museum
Article 312. Occupation of Real Property or Usurpation of Real Rights in Property
Acts punished:
1. Taking possession of any real property belonging to another by means of violence against or intimidation of persons;
2. Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.
Elements
1. Offender takes possession of any real property or usurps any real rights in property;
2. The real property or real rights belong to another;
3. Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property;
4. There is intent to gain.
Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation.
Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property. (People v.
Judge Alfeche, July 23, 1992)
Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed.
There is only a single crime, but a two- tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender. Therefore, it is not correct to state that the threat employed in usurping real property is absorbed in the crime; otherwise, the additional penalty would be meaningless. The complainant must be the person upon whom violence was employed. If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only.
On carnapping and theft of motor vehicle
The taking with intent to gain of a motor vehicle belonging to another, without the latter’s consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act
Preventing and Penalizing Carnapping),
as amended. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa.
On squatting
According to the Urban Development and
Housing Act, the following are squatters:
1. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway;
2. Also the persons who were awarded lots but sold or lease them out;
3. Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same.
Article 313. Altering Boundaries or Landmarks
Elements
1. There are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same;
2. Offender alters said boundary marks.
Article 314. Fraudulent Insolvency
Elements
1. Offender is a debtor, that is, he has obligations due and payable;
2. He absconds with his property; 3. There is prejudice to his creditors.
Article 315. Swindling (Estafa)
Elements in general
1. Accused defrauded another by abuse of confidence or by means of deceit; and
This covers the three different ways of committing estafa under Article 315; thus, estafa is committed – a. With unfaithfulness or abuse
of confidence;
b. By means of false pretenses or fraudulents acts; or
c. Through fraudulent means. (The first form under subdivision 1 is known as estafa with abuse of confidence; and the second and third forms under subdivisions 2 and 3 cover cover estafa by means of deceit.)
2. Damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. Elements of estafa with unfaithfulness of abuse of confidence under Article 315 (1) Under paragraph (a)
1. Offender has an onerous obligation to deliver something of value;
2. He alters its substance, quantity, or quality;
3. Damage or prejudice is caused to another.
Under paragraph (b)
1. Money, goods, or other personal property is received by the offender is 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. There is misappropriation or
conversion of such money or
property by the offender, or denial on his part of such receipt;
3. Such misappropriation or conversion or denial is to the prejudice of another; and
4. There is a demand made by the offended party to the offender.
(The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant. [Tubb v. People, et al.,
101 Phil. 114] ).
Under Presidential Decree No. 115, the failure of the entrustee to turn over the proceeds of the sale of the goods, documents, or instruments covered by a trust receipt, to the extent of the amount owing to the entruster, or as appearing in the trust receipt; or the failure to return said goods, documents, or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt constitute estafa.
Under paragraph (c)
1. The paper with the signature of the offended party is in blank;
2. Offended party delivered it to the offender;
3. Above the signature of the offended party, a document is written by the offender without authority to do so; 4. The document so written creates a
liability of, or causes damage to, the offended party or any third person. Elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2)
Acts punished under paragraph (a) 1. Using fictitious name;
2. Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or
3. By means of other similar deceits. Under paragraph (b)
Altering the quality, fineness, or weight of anything pertaining to his art or business. Under paragraph (c)
Pretending to have bribed any government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. Under paragraph (d)
1. Offender postdated a check, or issued a check in payment of an obligation;
2. Such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. Note that this only applies if –
(1) The obligation is not pre-existing; (2) The check is drawn to enter into an
obligation;
(Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a
bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.) (3) It does not cover checks where the
purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph
The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document. The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation.
It must not be promissory notes, or guaranties.
Good faith is a defense.
If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa.
Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.
Batas Pambansa Blg. 22
How violated
A. 1. A person makes or draws and issues any check;
2. The check is made or drawn and issued to apply on account or for value;
Thus, it can apply to pre- existing obligations, too. 3. The person who makes or
draws and issued 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;
3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. B. 1. A person has sufficient funds
in or credit with the drawee bank when he makes or draws and issues a check; 2. He fails to keep sufficient
funds or to maintain a credit to cover the full amount of the check if presented within 90 days from the date appearing;
3. The check is dishonored by the drawee bank.
Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22:
(1) Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation.
If the check is drawn for a pre- existing obligation, there is criminal liability only under Batas Pambansa Blg. 22.
(2) Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy.
(3) In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial.
(4) In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is reqired.
When is there prima facie evidence of knowledge of insufficient funds?
There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored.
Exceptions
1. When the check was presented after 90 days from date;
2. When the maker or drawer -- a. Pays the holder of the check
the amount due within five banking days after receiving notice that such check has not been paid by the drawee; b. Makes arrangements for
of such check within five banking days after notice of non-payment
The drawee must cause to be written or stamped in plain language the reason for the dishonor.
If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here.
The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check.
Acts punished under paragraph (e)
1. a. Obtaining food, refreshment, or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house;
b. Without paying therefor; c. With intent to defraud the
proprietor or manager. 2. a. Obtaining credit at
any of the establishments; b. Using false pretense; 3. a. Abandoning or
surreptitiously removing any part of his baggage in the establishment;
b. After obtaining credit, food, refreshment,
accommodation; c. Without paying.
Estafa through any of the following fraudulent means under Article 315 (3) Under paragraph (a)
1. Offender induced the offended party to sign a document;
2. Deceit was employed to make him sign the document;
3. Offended party personally signed the document;
4. Prejudice was caused. Under paragraph (b)
Resorting to some fraudulent practice to insure success in a gambling game;
Under paragraph (c)
1. Offender removed, concealed or destroyed;
2. Any court record, office files, documents or any other papers; 3. With intent to defraud another. In Kim v. People, 193 SCRA 344, it was held that if an employee receives cash advance from his employer to defray his travel expenses, his failure to return unspent amount is not estafa through misappropriation or conversion because ownership of the money was transferred to employee and no fiduciary relation was created in respect to such advance. The money is a loan. The employee has no legal obligation to return the same money, that is, the same bills and coins received. In Saddul Jr. v. CA, 192 SCRA 277, it was held that the act of using or disposing of another’s property as if it were one’s own,
or of devoting it to a purpose or use different from that agreed upon, is a misappropriation and conversion to the prejudice of the owner. Conversion is unauthorized assumption an exercise of the right of ownership over goods and chattels belonging to another, resulting in the alteration of their condition or exclusion of the owner’s rights.
In Allied Bank Corporation v. Secretary
Ordonez, 192 SCRA 246, it was held that
under Section 13 of Presidential Decree No. 115, the failure of an entrustee to turn over the proceeds of sale of the goods covered by the Trust Receipt, or to return said goods if they are not sold, is punishable as estafa Article 315 (1) (b).
On issuance of a bouncing check
The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the RevisedPenal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property.
In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre- existing obligation, there is no estafa as damage had already been done. The
drawer is liable under Batas Pambansa Blg. 22.
For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the