future profits or income be considered as an actionable fraud or estafa? Where one states that the future profits or income of an enterprise shall be a certain sum, but he actually knows that there will be none, or that they will be substantially less than he represents, the statements constitute an actionable fraud where the hearer believes him and relies on the statement to his injury. In the present case, it is abundantly clear that the profits which Elvira and her
co-conspirators promised
to Elizabeth would not be realized (Joson vs. People, G. R. No. 178836, July 23, 2008).
OTHER DECEIT- Other deceit
under Article 316 (a) of RPC is committed by any person who, knowing that the real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. The law was taken from Article 455 of the Spanish Penal Code. However, the words "como libre" in the Spanish Penal Code, which means "free from encumbrance" do not appear in the English text of RPC, nonetheless, the same are deemed incorporated in the RPC. The gravamen of the crime is the disposition of legally encumbered real property by the offender under the express representation that there is no encumbrance thereon. Hence, for one to be criminally liable for estafa under the law, the accused must
make an express representation in the deed of conveyance that the property sold
or disposed of is free from any
encumbrance (Naya vs. Abing, G.R. No. 146770, February 27, 2003, ).
FALSIFICATION
Commercial document -
Commercial documents are, in general, documents or instruments which are “used by merchants or businessmen to promote or facilitate trade or credit transactions.”
Promissory notes facilitate credit
transactions while a check is a means of payment used in business in lieu of money
for convenience in business
transactions. A cashier’s check necessarily facilitates bank transactions for it allows the person whose name and signature appear thereon to encash the check and withdraw the amount indicated therein (Tanenggee vs. People, GR No. 179448, June 26, 2013).
Is intent to cause damage an element of falsification of public or official document? No. In falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to injure a third person because in the falsification of a public document, what is punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed (Regidor, Jr., vs. People, G. R. Nos. 166086-92 Feb. 13, 2009).
What is the crime committed if private document is falsified as a necessary means to commit or conceal estafa or malversation?
Under the doctrine of common element, an element used to complete one crime cannot be legally re-used to complete the requisites of a subsequent crime (Regalado). The common element of estafa or malversation and falsification is damage to the victim. Thus, falsification of private document and estafa cannot co-exist. The use of damage as an element in falsification precludes the re-use thereof to complete the elements of estafa, and vice versa.
Falsification - If the offender
committed falsification of private document as a means to commit estafa, he is liable for falsification only. Falsification absorbs estafa. (See: U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917).
Estafa or malversation– If a person falsified a private document to conceal malversation or estafa, the crime is malversation or estafa only. Falsification of private document is not committed because: (a) the use of damage as an
element in estafa precludes the re-use thereof to complete the elements of falsification; and (b) the damage to third person is not caused by the falsity in the document but by the commission of estafa(See: People vs. Beng, 40 O.G. 1913). Note: If falsification of private document was used as a means to commit estafa, the former was committed ahead of the latter; hence, falsification absorbs the element of damage of estafa. If falsification of private document was used as a means to conceal estafa, the latter was committed ahead of the former; hence, estafa absorbs the element of damage of falsification.
What is the crime committed if public, official, or commercial document is falsified as a necessary means to commit or conceal estafa or malversation?
Complex crime - Since damage to third person is not an element of falsification of public, official or commercial document, it consummates the very moment the offender falsifies the document. If the offender uses the falsified document to defraud a third person or the government, estafa or malversation is also
committed. Estafa or malversation
consummates the moment the third person or government suffers damages. Since falsification is committed as a necessary means to commit estafa or malversation, complex crime under Article 48 is committed. (See: Ambito, vs. People, G. R. No. 127327, Feb. 13, 2009; People vs.
Barbas, G.R. No. 41265, July 27, 1934).
Separate crimes - If falsification of public, official or commercial document is used as a means to conceal estafa or malversation, two distinct crimes of estafa (or malversation) and falsification are committed. There is nocomplex crime since falsification is not a necessary means to commit estafa or malversation since the latter was already consummated when the former was committed (See: People vs.
Monteverde, G.R. No. 139610, August 12,
2002).
When the offender commits on a public, official or commercial document any of the acts of falsification as a necessary means to commit another crime like estafa, theft or malversation, the two crimes form a complex crime. The falsification of a public, official, or commercial document may be a means of committing estafa, because before the falsified document is actually utilized to defraud another, the crime of falsification has already been consummated, damage or intent to cause damage not being an element of the crime of falsification of public, official or commercial document. In other words, the crime of falsification has
already existed. Actually utilizing that
falsified public, official or commercial document to defraud another is estafa. But the damage is caused by the commission of estafa, not by the falsification of the document. Therefore, the falsification of the public, official or commercial document is only a necessary means to commit estafa. Taken in its entirety, the proven facts show that petitioner could not have withdrawn the money without falsifying the questioned
documents. The falsification was,
therefore, a necessary means to commit estafa, and falsification was already consummated even before the falsified documents were used to defraud the bank. The crime committed is complex crime of estafa through falsification of commercial document (Tanenggee vs. People, GR No. 179448, June 26, 2013).
In Patula vs. People, G.R. No. 164457, April 11, 2012 - According to the theory and proof of the Prosecution, petitioner misappropriated or converted the sums paid by her customers, and later falsified the duplicates of the receipts before turning such duplicates to her employer to show that the customers had paid less than the amounts actually reflected on the original receipts. Obviously, she committed the falsification in order to conceal her
misappropriation or conversion.
Considering that the falsification was not an offense separate and distinct from
the estafa charged against her, the
Prosecution could legitimately prove her acts of falsification as its means of establishing her misappropriation or conversion as an essential ingredient of the crime duly alleged in the information. In that manner, her right to be informed of the nature and cause of the accusation against her was not infringed or denied to her.
THEFT
QUALIFIED THEFT - The elements
of the crime of theft are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft becomes qualified "if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is a motor vehicle, mail matter or large cattle, or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or
civil disturbance (People vs. Bayon, GR No.
168627, July 02, 2010,Justice Peralta).
ABUSE OF CONFIDENCE - To
warrant the conviction and, hence, imposition of the penalty for qualified theft, there must be an allegation in the information and proof that there existed between the offended party and the accused
such high degree of confidence]or that the
stolen goods have been entrusted to the custody or vigilance of the accused. In other words, where the accused had never been vested physical access to, or material possession of, the stolen goods, it may not be said that he or she exploited such access or material possession thereby committing such grave abuse of confidence in taking the property (Viray vs. People, GR No. 205180, November 11, 2013).
In Zapanta vs. People, G.R. No. 170863, March 20, 2013 - Accused betrayed the trust and confidence reposed on him when he, as project manager, repeatedly took construction materials from the project site, without the authority and consent of Engr. Marigondon, the owner of the construction materials. He is liable for qualified theft.
Taking committed by accused cannot be qualified by the breaking of the door, as it was not alleged in the Information. Moreover, the same breaking of the door does not constitute the qualifying element of grave abuse of confidence. The very fact that accused “forced open” the main door because he was denied access to complainant’s house negates the presence of such confidence in him by private complainant. Without ready access to the interior of the house where the properties were taken, it cannot be said that complaint had a “firm trust” on accused and that the same trust facilitated taking of the personal properties (Viray vs. People, GR No. 205180, November 11, 2013).
If the subject matter of a crime against property was money, identity of the offended party is material and necessary for the proper identification of the offense charged. Since money is generic and has no earmarks that could properly identify it, the only way that it (money) could be described and identified in a complaint is by connecting it to the offended party or the individual who was robbed as its owner or possessor. Thus, the erroneous designation of the offended party would also be material, as the subject matter of the offense could no longer be described with such particularity as to properly identify the offense charged (Senador vs. People, GR No. 201620, March 06, 2013).
If the subject matter of a crime against property is specific or one described with such particularity as to properly identify the offense charged, then an erroneous designation of the offended party is not material and would not result in the violation of the accused’s constitutional right to be informed of the nature and cause of the accusation against her. Such error would not result in the acquittal of the accused (Senador vs. People, GR No. 201620, March 06, 2013).
Accused asserted that the person named as the offended party in the Information is not the same person who made the demand and filed the complaint.
According to accused, the private
complainant in the Information went by the name “Cynthia Jaime,” whereas, during trial, the private complainant turned out to be “Rita Jaime.” Applying the Uba principle, the case should be dismissed. Is the argument tenable?
Answer: No. The principle in People vs. Uba, 106 Phil. 332 is not applicable. In Uba case, the appellant was charged with oral defamation, a crime against honor, wherein the identity of the person against whom the defamatory words were directed is a material element. Thus, an erroneous designation of the person injured is material. On the contrary, in the instant case, accused was charged with estafa, a crime against property that does not absolutely require as indispensable the proper designation of the name of the offended party. Rather, what is absolutely necessary is the correct identification of
the criminal act charged in the
information. Thus, in case of an error in the designation of the offended party in crimes against property, Rule 110, Sec. 12 of the Rules of Court mandates the correction of the information, not its dismissal.
In this case, the subject matter of the offense does not refer to money or any other generic property. Instead, the information specified the subject of the offense as “various kinds of jewelry valued in the total amount of P705,685.00.” Thus, The error in the designation of the offended party in the information is immaterial and did not violate accused’s constitutional right to be informed of the nature and cause of the accusation against her.
THEFT THROUGH
MISAPPROPRIATION - Misappropriation of
personal property in possession of the accused may constitute estafa or theft depending upon the nature of possession. If his possession of the property is physical or de facto, misappropriation thereof is
constitutive of theft. If the possession is juridical or legal, misappropriation thereof is estafa through misappropriation.
A travelling sales agent, who failed to return to his principal the proceeds of goods he was commissioned or authorized to sell, is liable for estafa because his possession is juridical. Under the Civil Code Article 1914 of the Civil Code, an agent can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Guzman v. Court of Appeals, 99 Phil. 703). On the other hand, branch manager of the company, who misappropriate payments from customers that he collected and accepted, is liable for qualified theft.
Because of this employer-employee
relationship, he cannot be considered an agent of the company and is not covered by the Civil Code provisions on agency. Money received by an employee in behalf of his employer is considered to be only in the material possession of the employee(People vs. Mirto, G.R. No. 193479, October 19, 2011).
The receiving teller of a bank, who misappropriated the money received by him for the bank, is liable for qualified theft.
The possession of the teller is the
possession of the bank. Payment by third persons to the teller is payment to the bank itself. The teller has no independent right or title to retain or possess the same as against the bank (People v. Locson, G.R. No. L-35681, October 18, 1932). In one case, a corporate officer received the property to be utilized in the fabrication of bending machines in trust from the corporation and he has absolute option on how to use them without the participation of the corporation. Upon demand, the officer failed to account the property. Since the corporate officer received the property in trust with absolute option on how to use them without the participation of the corporation, he acquired not only physical possession but also juridical possession over the equipment. He is liable for estafa through misappropriation (Aigle vs. People, G.R. No. 174181, June 27, 2012).
Driver of jeepney under boundary arrangement, who did not return the
vehicle to it’s owner, is liable for
carnapping.In People v. Isaac G.R. No. L- 7561, April 30, 1955, the rules prohibits motor vehicle operator from allowing the use and operation of his equipment by another person under a fixed rental basis. In the eye of the law the driver was only an
employee of the owner rather than a lessee. For being an employee, his possession of
the jeepney is physical, and
misappropriation thereof is qualified theft. In People vs. Bustinera, G. R. No. 148233, June 8, 2004, the Supreme Court affirmed the principle in Isaac case, but found the accused guilty of carnapping in view of the passage of RA No. 6539(Anti-Carnapping Act).
THEFT OF INTANGIBLE
PROPERTY - The term "personal property"
in the Revised Penal Code should be interpreted in the context of the Civil Code. Consequently, any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object of theft. Business may be appropriated under Bulk Sales Law. Thus,
the business of providing
telecommunication and the telephone service is a personal property (Laurel vs.
Abrogar, G.R. No. 155076, January 13,
2009,).
The word "take" in the RPC includes controlling the destination of the property stolen to deprive the owner of the property, such as the use of a meter tampering, use of a device to fraudulently obtain gas, and the use of a jumper to divert electricity. Appropriation of forces of nature which are brought under control by science such as electrical energy can be achieved by tampering with any apparatus used for generating or measuring such forces of nature, wrongfully redirecting such forces of nature from such apparatus, or using any device to fraudulently obtain such forces of nature (Laurel vs. Abrogar).
A "phreaker" is one who engages in the act of manipulating phones and illegally markets telephone services. Phreaking
includes the act of engaging in
International Simple Resale (ISR) or the unauthorized routing and completing of international long distance calls using lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined (Laurel vs. Abrogar, G.R. No. 155076, February 27, 2006 and January 13, 2009).
Can PLDT validly claim that the “long distance calls” are its properties stolen by the phreaker? No. “International long distance calls” take the form of electrical energy. It cannot be said that such international long distance calls were personal properties belonging to PLDT since the latter could not have acquired ownership over such calls. PLDT merely encodes, augments, enhances, decodes and transmits said calls using its complex
communications infrastructure and facilities. PLDT not being the owner of said telephone calls, then it could not validly claim that such telephone calls were taken without its consent (Laurel vs. Abrogar). Telephone calls belong to the persons making the calls.
Can phreaker be held criminally liable for engaging in ISR involving the telephone facilities of PLDT? Yes. Phreaker can be held liable for access device fraud under RA No. 8484 and theft under the Revised Penal Code.PLDT’s business of providing telecommunication or telephone service is personal property which can be the object of theft. While telephone calls are not properties belonging to PLDT that can be stolen, it is the use of these communications facilities without the consent of PLDT that constitutes the crime of theft, which is the unlawful taking of the telephone services and business.The act of conducting ISR operations by illegally connecting various equipment or apparatus to PLDT’s telephone system, through which petitioner is able to resell or re-route international long distance calls using respondent PLDT’s facilities constitutes acts of subtraction (taking)penalized under