Title X - Crimes against Property III

Monday, 29 January 2018

5:58 PM

Civil Liability in Estafa

What if the offender would pay for the damage? Does it have an effect on the criminal
liability? We go back to Crim I where it said that a felony or a crime is an outrage against the
people, so therefore, even if the victim will pardon for example, the offender, that might not
result in extinguishment of criminal liability. Of course you have the exceptions if you
remember: (a) pardon after the fact or consent before may also extinguish criminal liability.

There are instances especially in private crimes where pardon or consent may extinguish,
but overall, since crimes are outraged against the state, the private offended party is not
really the offended party. The pardon of the offended party may not have any effect. We
have to distinguish because you will notice that there are different kinds of estafa. If it is
estafa #2 for example, which is by deceit, payment in certain classes of estafa #2 may not
extinguish civil liability. In estafa #1 abuse, especially 1B, payment, there may be a possibility
that it may result in the criminal liability being extinguished.

Ex. By the way, 1B let's focus, and also 2B. Why are these kinds of estafa rather special? It is
because in these kinds of estafa, the SC held that in order for the criminal liability to ripen,
that there must be a demand. Let’s go to 1B, there's an abuse of trust and confidence.
There's abuse of trust and confidence when a thing is entrusted to another. Let's say Maria
entrusted jewelry to Juana. Juana must return the thing if there is no transaction. The thing
that must be returned is the same exact thing. If Maria entrusted a ring, Juana cannot return
another thing. It must be the same thing. That is the obligation.

What if the same exact thing is not returned? Another thing is returned. Here is what will
happen:

If another thing is returned, it will not extinguish the criminal liability. If the victim consents, so
instead of returning the ring, I return a watch, and then the victim consents, that makes a
new contract and gives rise to novation. Now we are talking about the watch. If it is
received by the victim, then there is novation and the original agreement or contract of
agency will be extinguished, replaced by the new agreement.

If obligation is not to return but to sell it, and there is some kind of remuneration of the agent,
and the agent will derive some kind of benefit maybe in the form of commission or a
markup, but by virtue of agreement of agency, this person is now authorized to DISPOSE of it.
This person, if he sells it to another, receives the money, the owner cannot get it from the
buyer because the seller is an authorized agent. That is why we say JURIDICAL POSSESSION.
By virtue of possession, he can convey it legally and convey the title legally by virtue of his
juridical possession.

If a person is entrusted with trust and confidence and he has the obligation to return, he
must return. If he can dispose of it, he has juridical title. However, the duty to dispose of it will
also carry the duty to remit the proceeds. So, if he fails to remit the proceeds, then there will
be estafa. Therefore, you have to take note that if the salesman for example, if the salesman
has authority to sell if he derives juridical possession over the thing, and he is authorized to
sell it as an agent, then the crime will not be qualified theft but estafa.
How will it differ from qualified theft? You have a thing, and then the offender takes it (QT),
and the taking is by means of abuse of confidence. In essence, it's the same because there
is taking and abuse of confidence. How do you determine whether it is QT or estafa?
NATURE OF POSSESSION.

If he is legally authorized to dispose, it is estafa because there is juridical possession. He has

the duty to remit the proceeds or return the very same thing if not sold. It's the nature of the
possession.

Now, cashier. If the cashier takes money which are proceeds of a transaction, what should
the crime be? QUALIFIED THEFT BECAUSE HER POSSESSION IS ONLY PHYSICAL AND MATERIAL.
DO NOT IMMEDIATELY CONCLUDE THAT BECAUSE THE PERSON IS A SALESMAN THAT THE CRIME
SHOULD BE ESTAFA. Not all the time.

If it is only to book orders, salesman is not authorized to deliver the thing - to get orders. He
takes the thing, or takes the stuff and delivers it, got the money, and did not remit the
proceeds. That is simply THEFT. No abuse of trust and confidence in so far as the thing is
concerned because salesman is only a booking salesman whose duty is only to take orders.
Not entrusted with the thing taken. The thing that he took was taken by him while he was not
in juridical possession but physical possession.

People v. Neri Case - Neri says that if the criminal liability is only incipient - not ripened into a
real criminal liability yet - that payment by the offender may still extinguish criminal liability. IF
the criminal liability has not yet ripened, only in its incipient stage. THIS WILL NOT APPLY IN #2.
IT MAY APPLY IN 1A. (Q was is it only applicable to 1B?). Cannot make a conclusion, but it is
applicable to kinds of estafa where demand is an element. Does not apply to theft cases
(People v. Tanjutco)

In 1B, unlike in other kinds of estafa, in order for the criminal liability to ripen into one, that
there should be a demand, and later on, SC would say that there is no specific formality of
demand. It does not have to be in writing or notarized. Important: there is a demand. It can
be verbal, as long as you can prove that it was made.

Why is demand necessary in 1B? Here's the thing. Most of the time, there is an agency and
the offender is authorized to sell something. If unsold, return it. If sold, remit. Most of the time,
the obligation, the exact date of the return is not agreed upon. Ex. You sell this ring or
jewelry. Sell my car. I will display it in your shop. You are authorized to sell. We do not know
when it will be sold, and most of the time they will just wait. So, here we have a scenario
where we do not know if the obligation has already ripened. Without the obligation to return
having ripened, we would not know if there is a crime committed. In your CRIM PRO, you will
be taught of a cause of action - one person has a RIGHT. Right of the owner is to demand
the return. To have the thing back. Right in 1B. That right will not yet ripen into a criminal
liability if there is no wrong. What he will remember is that one person has a right, and that
the other person committed a wrong.

If there is a right, but there is no wrong = no cause of action.

Ex. Juana borrowed money from Maria. What is the obligation? To pay. What is the right of
Maria? To receive payment. There is no wrong yet. The wrong will happen if Maria will not
pay. When will that happen? The wrong will happen if there is a date set for compliance,
and the payment was not done OR even if there was no date set, there was a demand. The
demand was refused or rejected. That's how you get a wrong.

Going back to 1B, we said that a demand is required as an element. You cannot file a case
for violation of 1B unless a demand has been made. Once there is a demand, then there will
be a wrong.

Ex. The demand is for the borrower or the agent. For the agent to return it within 10 days. He
cannot return the thing anymore. Cannot return. He will pay. I cannot return it, I will just pay.
What will happen to criminal liability? Extinguished because criminal liability is still incipient.

Ex. Demand was unheeded until expiration of grace period. Criminal liability will already
ripen. Now because there is a cause of action, the victim may go to court and file a case.
Once the owner of the thing files a case, remember what will happen to the case. PEOPLE
OF THE PHILS V. XXXX. Once it becomes this and the liability has ripened, even if offender has
offered to pay, it may not anymore extinguish criminal liability.

Will it mitigate? YES. Last mitigating circumstance is analogous circumstance. If there is an

offer to pay, it is an admission of guilt. It's different in civil law. WILL NOT EXTINGUISH.

Now, in 2D, which is the issuance of a check, and do not be misled by the word postdating.
It need not be postdated. The issuing of an ondated check or postdated whatever can
constitute estafa under 2D if the check is A MEANS TO COMMIT THE DECEIT. By reason of the
check, the victim parted with a valuable, whether money or property.

While there can be novation in estafa, the same does not apply to theft. You stole a laptop
and offered to pay a PC, that will not extinguish criminal liability. MAY EXTINGUISH CIVIL
LIABILITY. In estafa, it will not only extinguish civil liability but also criminal liability itself.

Failure to deposit within three days from receipt of notice is prima facie evidence of deceit
(BP 22).

This is Lito Corpuz case. Demand for checks must be in writing, but not demand for returning
of things. This was also explained in the case of Asejo (more popular case in so far as
demand). DEMAND FOR 1B APPLICABLE.

Ojeda case - It is also important and now you have to be very careful because it talks about
checks. This is not anymore 1B. This is now 2D as well as BP 22. In Ojeda, SC said that notice
which should be in writing, notice of dishonor which is = demand, required under 2D and BP
22. That's why it has to be in writing, specifically, the demand must state that the check has
bounced, and because it bounced and is dishonored. Now the victim will demand for the
check to be made good. In essence, the notice of dishonor actually contains two things:
(a.) Notifying the check bounced and (b.) the amount to be paid and demanded.

Good faith as a defense (Ojeda - FISCAL SAYS READ KAY IMPORTANT). There was an issue of
whether, kay diba 2 is deceit, of whether there can be the defense of good faith. There
were checks that were issued, but they weren't issued because they were for a
consideration. They bounced, and the defense was good faith. This is where you will now
distinguish BP 22 from 2D because good faith CANNOT be a defense in BP 22. Why? Because
BP 22 is malum prohibitum. In malum prohibitum cases, good faith is not a defense. Whereas
in 2B, we're talking about deceit. That's mala in se. That's why good faith can be a defense.
Recuerdo v. People - defense of good faith was not believed because suddenly she had
good faith only after conviction. The court did not believe. What SC said is that yes, Good
faith may be a defense, but it depends on whether it is credible or not. READ CORPUZ KAY
THERE MIGHT BE A QUIZ NEXT MEETING.

In Lito Corpuz, he was charged with estafa. And because the old RPC still had very small
amounts, even if the damage is minimal, but because the values were circa 90's - 130K
pesos penalty = up to 30 years. Now, the mode is what is known as IPR - Incremental Penalty
Rule = the bigger the amount of damage, the bigger penalty. Lower damage, lower
penalty.

Before the amendment of the RPC by RA 10951, example in theft where what was taken is 5
pesos, then it was arresto menor. If it is 200 pesos, arresto mayor. Higher amount, higher
penalty. If you stole value of more than 12k pesos, then it would be prision mayor only for 12k
pesos. If you steal a cellphone worth 15K which is cheap (nangatawa mi kay gi-cheapan si
Fiscal ug 15K), if that cellphone is stolen, the thief will have to serve jailtime for six years and 1
day at least to 12 years. If the thief is a maid, qualified theft - 2 degrees higher. THAT WAS
BEFORE. But in estafa, it's the same. For every 10K, 1 year is added - not to exceed 20 or 30
years. That's the thing. It can really go as high as reclusion, but if the amount taken is 300k, it
can go as high up as reclusion.

CORPUZ ARGUED that this law - the IPR - is unconstitutional. It is a violation of the equal
protection clause. If you steal 15M, you will have the same penalty as the guy who steals
300K. Because of this, we had an amendment. It is only for the amounts.

SUMMARY:

When there are documents requiring a person to sign by means of violence or intimidation =
ROBBERY, NOT GRAVE COERCION.

If there is a blank instrument, and a person is being made to sign = ESTAFA.

If person induced to sign through deceit, even if not blank instrument = ESTAFA. 3A. 3C if
document is removed or destroyed, other forms of swindling if fictitious contract.

Crimes involving debt:

Person made to work for payment of debt - Art 274. Check lang the powerpoint of fiscal. Gi-
sulti ra niya unsay naa didto.

Crimes involving Labor:

Slavery, exploitation of child labor and so on. Murag di na ni sila important.

(Reyes v. People) There is another kind of estafa that is not found in the RPC. It is estafa
called large scale estafa. In this kind of estafa, the penalty can go as high as reclusion
perpetua. Non-bailable. What is this? Mao na ni siya ang invest invest. It is specific for 5
people for this kind of estafa. If we have another crime, such as illegal recruitment, large-
scale illegal recruitment, it has to be 3 or more. 3 is the number. THIS ONE IS 5. To become a
syndicate, there has to be more than 3. Large scale, more than 3 victims. Syndicate - more
than 3 offenders.
Can we file both under BP 22 and 2D?

 YES. Different crimes, different elements, even if they involve the same objective.

Par 2D, no proof of dishonor, knowledge of funds cannot be presumed.

COMPLEXING ESTAFA

Yes. You can, but not when it is falsification of private documents. For public, damage is not
a requisite.

Malicious Mischief

This is the last crime under crimes against property. These are the elements. Check ppt.
Damage must be deliberately caused just for the sake of damaging it. If there is a reason
why like there was a fence and it was about to fall and injure people, so you have to destroy
it. That is not malicious mischief. Otherwise, if there is destruction of property, but not for the
purpose of destroying it. It is not malicious mischief - may not even be a crime, but there
may be damage. Destruction of property must not be the purpose of gain - if it is, then it will
be theft.

Special cases of malicious mischief = gibasa na pud niya ang ppt ra. It's like qualified
malicious mischief. Take into consideration that there is the cattle rustling law.

Absolutory Cause under 332.

If the offender is related to the victim, then the offender will not incur any criminal liability if
the crime committed was theft, swindling, or malicious mischief.

Applicable to:

 Spouses, Ascendants, Descendants. Also by affinity, so like common-law, adoptive,

stepchildren, parents in law.
 Widowed spouse
 Brothers and sisters including in-laws, as long as they're living together.

NEXT MEETING: QUIZ!