1E Criminal Law 2 Reviewer 1 A/Y 2009-2010

PHYSICAL INJURIES A. MUTILATION: (262) Kinds of Mutilation 1. Intentionally mutilating another by depriving him, totally or partially, of some essential organ for reproduction 2. Intentionally making another mutilation, i.e. lopping, clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of the body Elements: 1. There be a castration i.e. mutilation of organs necessary for generation 2. Mutilation is caused purposely and deliberately Notes 1. In the first kind of mutilation, the castration must be made purposely. !ther"ise, it "ill be considered as mutilation of the second kind Mayhem refers to any other intentional mutilation 2. 4. 5. 3oss of po"er to hear must involve both ears. !ther"ise, it "ill be considered as serious physical in*uries under par ' 3oss of use of hand or incapacity of usual "ork in par 2 must be permanent 6ar 2 refers to principal members of the body. 6ar ' on the other hand, covers any other member "hich is not a principal part of the body. In this respect, a front tooth is considered as a member of the body, other than a principal member e!"#m$t% & means physical ugliness, permanent and definite abnormality. Not curable by natural means or by nature. It must be conspicuous and visible. Thus, if the scar is usually covered by a dress, it "ould not be conspicuous and visible The loss of ' incisors is a visible deformity. 3oss of one incisor is not. #o"ever, loss of one tooth "hich impaired appearance is a deformity 8eformity by loss of teeth refers to in*ury "hich cannot be impaired by the action of the nature 3oss of both outer ears constitutes deformity and also loss of the po"er to hear. Mean"hile, loss of the lobule of the ear is only a deformity 3oss of the inde9 and middle fingers is either a deformity or loss of a member, not a principal one of his body or use of the same 3oss of the po"er to hear in the right ear is considered as merely loss of use of some other part of the body If the in*ury "ould re1uire medical attendance for more than '- days, the illness of the offended party may be considered as lasting more than '- days. The fact that there "as medical attendance for that period of time sho"s that the in*uries "ere not cured for that length of time :nder par ), all that is re1uired is illness or incapacity, not medical attendance In determining incapacity, the in*ured party must have an avocation at the time of the in*ury. %ork includes studies or preparation for a profession %hen the category of the offense of serious physical in*uries depends on the period of the illness or incapacity for labor, there must be evidence of the length of that period. !ther"ise, the offense "ill only be considered as slight physical in*uries There is no incapacity if the in*ured party could still engage in his "ork although less effectively than before 0erious physical in*uries is 1ualified "hen the crime is committed against the same persons enumerated in the article on parricide or "hen it is attended by any of the circumstances defining the crime of murder. #o"ever, serious physical in*uries resulting from e9cessive chastisement by parents is not 1ualified serious physical in*uries

7.

,.

1-. 11.

2.

B. SERIOUS PHYSICAL INJURIES: (263) 12. #o" $ommitted 1. %ounding 2. &eating '. (ssaulting ). (dministering in*urious substances %hat are serious physical in*uries 1. In*ured person becomes insane, imbecile, impotent or blind 2. In*ured person + a. loses the use of speech or the po"er to hear or to smell, loses an eye, a hand, foot, arm or leg b. loses the use of any such member c. becomes incapacitated for the "ork in "hich he had been habitually engaged '. In*ured person + a. becomes deformed b. loses any other member of his body c. loses the use thereof d. becomes ill or incapacitated for the performance of the "ork in "hich he had been habitually engaged in for more than ,- days ). In*ured person becomes ill or incapacitated for labor for more than '- days .but not more than ,- days/ Notes 1. 2. '. ). 0erious physical in*uries may be committed through reckless imprudence or simple imprudence There must be no intent to kill Impotent should include inability to copulate and sterility &lindness re1uires loss of vision in both eyes. Mere "eakness in vision is not contemplated 1'. 1).

12. 14.

15.

17. 1,.

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1E Criminal Law 2 Reviewer 2 A/Y 2009-2010

C. ELEMENTS O' A MINISTERIN( INJURIOUS SUBSTANCES OR BE)ERA(ES: (26*) 1. That the offender inflicted upon another person any serious physical in*ury 2. That it "as done kno"ingly administering to him any in*urious substances or beverages or by taking advantage of his "eakness of mind of credulity '. #e had no intent to kill Notes 1. 2. It is frustrated murder "hen there is intent to kill (dministering means introducing into the body the substance, thus thro"ing of the acid in the face is not contemplated c. d. by means of fraudulent machination or grave abuse of authority "hen the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present

2.

&y any person "ho, under any of the circumstances mentioned in par 1 hereof, shall commit an ac of se9ual assault by inserting a. his penis into another person;s mouth or anal orifice, or b. any instrument or ob*ect, into the genital or anal orifice of another person

. ELEMENTS O' LESS SERIOUS PHYSICAL INJURIES: (26+) 1. That the offended party is incapacitated for labor for 1- days or more .but not more than '- days/, or needs medical attendance for the same period of time 2. That the physical in*uries must not be those described in the preceding articles Notes 1. $ircumstances 1ualifying the offense a. "hen there is manifest intent to insult or offend the in*ured person b. "hen there are circumstances adding ignominy to the offense c. "hen the victim is either the offender;s parents, ascendants, guardians, curators or teachers d. "hen the victim is a person of rank or person in authority, provided the crime is not direct assault It falls under this article even if there "as no incapacity but the medical treatment "as for 1' days

2.

E. SLI(HT PHYSICAL INJURIES: (266) ' Kinds 1. That "hich incapacitated the offended party for labor from 1<, days or re1uired medical attendance during the same period 2. That "hich did not prevent the offended party from engaging in his habitual "ork or "hich did not re1uire medical attendance .e9. &lack<eye/ '. Ill<treatment of another by deed "ithout causing any in*ury .e9. slapping but "ithout causing dishonor/ '. RAPE (ART 3++) The (nti<=ape 3a" of 1,,5 .=( 7'2'/ no" classified the crime of rape as C#$me A,-$nst Pe#s"ns incorporated into Title 7 of the =6$ to be kno"n as $hapter '

Elements: R-.e $s /"mm$tte0 1. &y a man "ho have carnal kno"ledge of a "oman under any of the follo"ing circumstances a. through force, threat or intimidation b. "hen the offended party is deprived of reason or other"ise unconscious

=ape committed under par 1 is punishable by 1. reclusion perpetua 2. reclusion perpetua to 8>(T# "hen a. victim became insane by reason or on the occasion of rape b. the rape is attempted and a homicide is committed by reason or on the occasion thereof '. 8>(T# "hen a. homicide is committed b. victim under 17 years and offender is i. parent ii. ascendant iii. step<parent iv. guardian v. relative by consanguinity or affinity "ith the 'rd civil degree or vi. common la" spouse of parent of victim c. under the custody of the police or military authorities or any law enforcement or penal institution d. committed in full vie" of the spouse, parent or any of the children or other relatives "ithin the 'rd degree of consanguinity e. victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime f. a child belo" 5 years old g. offender kno"s he is afflicted "ith HIV or (I80 or any other sexually transmissible disease and the virus is transmitted to the victim h. offender? member of the (@6, or paramilitary units thereof, or the 6N6, or any la" enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime i. victim suffered permanent physical mutilation or disability j. the offender knew of the pregnancy of the offended party at the time of the commission of the crime and k. when the offender knew of the mental disability, emotional disorder and!or physical handicap or the offended party at the time of the commission of the crime

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=ape committed under par 2 is punishable by ". prision mayor #. prision mayor to reclusion temporal a. use of deadly "eapon or b. by t"o or more persons '. reclusion temporal + "hen the victim has become insane ). reclusion temporal to reclusion pepetua + rape is attempted and homicide is committed 2. reclusion perpetua + homicide is committed by reason or on occasion of rape 4. reclusion temporal + committed "ith any of the 1- aggravating circumstances mentioned above Notes 1. The underscored "ords are the amendments provided by =( 7'2' 2. 8ividing age in rape a. less than 5 yrs old, mandatory death b. less than 12 yrs old, statutory rape c. less than 17 yrs old and there is relationship .e.g. parent etc/? mandatory death TITLE NINE CRIMES A(AINST PERSONAL LIBERTY AN SECURITY '. ). That the act of detention or kidnapping must be illegal That the crime is committed "ithout the attendant of any of the circumstances enumerated in (rt 245

Note 6rivileged mitigating circumstances If the offender a. voluntarily releases the person so kidnapped or detained "ithin ' days from the commencement of the detention b. "ithout having attained the purpose intended and c. before the institution of criminal proceedings against him C. ELEMENTS O' UNLA4'UL ARREST: (265) 1. That the offender arrests or detains another person 2. That the purpose of the offender is to deliver him to the proper authorities '. That the arrest or detention is not authoriBed by la" or there is no reasonable ground therefore Notes 1. 2. '. ). !ffender is any person, so either a public officer or private individual =efers to "arrantless arrests In art 122, the detention is for some legal ground "hile here, the detention is not authoriBed by la" In art 122, the crime pertains to failure to deliver the person to the proper *udicial authority "ithin the prescribed period "hile here, the arrest is not authoriBed by la"

I.

A. ELEMENTS O' 1I NAPPIN( AN SERIOUS ILLE(AL ETENTION: (262) 1. !ffender is a private individual 2. #e kidnaps or detains another, or in any other manner deprives the latter of his liberty '. The act of detention or kidnapping must be illegal ). That in the commission of the offense, any of the follo"ing circumstances are present .becomes serious/ a. that the he kidnappingAdetention lasts for more than ' days b. that it is committed simulating public authority c. that any serious physical in*uries 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 .e9cept if parent is the offender/, female or a public officer Note %hen death penalty is imposed a. if kidnapping is committed for the purpose of e9torting ransom either from the victim or from any other person even if none of the aforementioned are present in the commission of the offense .even if none of the circumstances are present/ b. "hen the victim is killed or dies as a conse1uence of the detention or is raped or is sub*ected to torture or dehumaniBing acts B. ELEMENTS O' SLI(HT ILLE(AL ETENTION: (263) 1. !ffender is a private person 2. #e kidnaps or detains another or in any other maner deprives him pof his liberty A furnished place for the perpetuation of the crime

. ELEMENTS O' 1I NAPPIN( AN 'AILURE TO RETURN A MINOR: (226) 1. That the offender is entrusted "ith the custody of a minor person ."hether over or under 5 but less than 17 yrs old/ 2. That he deliberately fails to restore the said minor to his parents E. ELEMENTS O' IN UCIN( A MINOR TO ABAN ON HIS HOME: (227) 1. That the minor ."hether over or under 5/ is living in the home of his parents or guardians or the person entrusted "ith his custody 2. That the offender induces a minor to abandon such home Notes 1. Inducement must be actual, committed "ith criminal intent and determined by a "ill to cause damage 2. Minor should not leave his home of his o"n free "ill '. Mitigating if by father or mother '. ELEMENTS O' SLA)ERY: (222) 1. That the offender purchases. 0ells, kidnaps or detains a human being. 2. That the purpose of the offender is to enslave such human being.

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Note Cualifying circumstance + if the purpose of the offender is to assign the offended party to some immoral traffic .prostitution/, the penalty is higher (. ELEMENTS O' E8PLOITION O' CHIL LABOR: (223) 1. That the offender retains a minor in his service. 2. That it is against the "ill of the minor. '. That it is under the prete9t of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted "ith the custody of such minor. (. ELEMENTS O' SER)ICES REN ERE UN ER COMPULSION IN PAYMENT O' EBT: (22*) 1. 2. '. That the offender compels a debtor to "ork for him, either as household servant or farm laborer. That it is against the debtor;s "ill. That the purpose is to re1uire or enforce the payment of a debt. II. CRIMES A(AINST SECURITY A. ABAN ONMENT O' PERSON IN AN(ER AN ABAN ONMENT O' ONE9S O4N )ICTIM: (22+) (cts punishable 1. &y failing to render assistance to any person "hom the offender finds in an inhabited place "ounded or in danger of dying, "hen he can render such assistance "ithout detriment to himself, unless such omission shall constitute a more serious offense Elements a. That place is not inhabited. b. The accused found there a person "ounded or in danger of dying. c. The accused can render assistance "ithout detriment to himself. d. The accused fails to render assistance. 2. '. &y failing to help or render assistance to another "hom the offender has accidentally "ounded or in*ured &y failing to deliver a child, under 5 "hom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place a. "hen the death of the minor resulted from such abandonment b. if the life of the minor "as in danger because of the abandonment A. ELEMENTS O' ABAN ONMENT O' MINOR BY PERSON ENTRUSTE 4ITH HIS CUSTO Y: IN I''ERENCE O' PARENTS: (222) (cts punished 1. &y delivering a minor to a public institution or other persons "Ao consent of the one "ho entrusted such minor to the care of the offender or, in the absence of that one, "ithout the consent of the proper authorities Elements: a. That the offender has charged of the rearing or education of a minor. b. That he delivers said minor to a public institution or other persons. c. That the one "ho entrusted such child to the offender has not consented to such act, or if the one "ho entrusted such child to the offender is absent? the proper authorities have not consented to it. 2. &y neglecting his .offender;s/ children by not giving them education "hich their station in life re1uires and financial condition permits Elements: a. That the offender is a parent. b. That he neglects his children by not giving them education. c. That his station in life re1uires such education and his financial condition permits it. B. ELEMENTS O' E8PLOITATION O' MINORS: (223) (cts punished 1. &y causing any boy or girl under 14 to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person 2. &y employing children under 14 "ho are not the children or descendants of the offender in e9hibitions of acrobat, gymnast, rope<"alker, diver, or "ild<animal tamer or circus manager or engaged in a similar calling '. &y employing any descendant under 12 in dangerous e9hibitions enumerated in the ne9t preceding paragraph, the offender being engaged in any of said callings ). &y delivering a child under 14 gratuitously to any person follo"ing any of the callings enumerated in par 2 or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity "ith the care of such child 2. &y inducing any child under 14 to abandon the home of its ascendants? guardians, curators or teachers to follo" any person engaged in any of the callings mentioned in par 2 or to accompany any habitual vagrant or beggar, the offender being any person

B. ELEMENTS O' ABAN ONIN( A MINOR: (226) 1. That the offender has the custody of a child. 2. That the child is under seven years of age. '. That he abandons such child. ). That he has no intent to kill the child "hen the latter is abandoned. $otes% 1. $onscious, deliberate, permanent, unless punishable by a more serious offense 2. Cualifying circumstances

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Note Cualifying $ircumstance + if the delivery of the child to any person follo"ing any of the callings of acrobat, rope<"alker, diver or "ild<animal trainer or circus manager or to any habitual vagrant of beggar is made in consideration of any price, compensation or promise, the penalty is higher. C. A ITIONAL PENALTIES OTHER O''ENSES: (225) 'OR upon that of the latter;s family, of any "rong. b. That such "rong amounts to a crime. c. That there is a demand for money or that any other condition is imposed, even though not unla"ful. d. That the offender attains his purpose. 2. &y making such threat "ithout the offender attaining his purpose '. &y threatening another "ith the infliction upon his person, honor or property or that of his family of any "rong amounting to a crime, the threat not being sub*ect to a condition .Note threat is "ithout condition/ Elements a. That the offender threatens another person "ith the infliction upon the latter;s person, honor or property, or upon that of the latter;s family, of any "rong. b. That such "rong amounts to a crime. c. That the threat is not sub*ect to a condition $otes% 1. (ggravating circumstances if made in "riting or thru a middleman 2. @rustrated + if not received by the person being threatened '. (rt 27) bond from good behavior may be imposed .only in these offenses/ I. ELEMENTS O' LI(HT THREATS: (233) 1. That the offender makes a threat to commit a "rong. 2. That the "rong does not constitute a crime. '. That there is a demand for money or that other condition is imposed, even though not unla"ful ). That the offender has attained his purpose or, that he has not attained his purpose (rt 27) bond from good behavior may be imposed $otes% 1. .only in these offenses/ 2. The "rong does not amount to a crime J. BON 'OR (OO BEHA)IOR: (23*) 1. ELEMENTS O' OTHER LI(HT THREATS: (23+) 1. 6erson shall threaten another "ith a "eapon, or dra" "eapon in a 1uarrel unless in self<defense. 2. In the heat of anger, person orally threatens another "ith some harm constituting a crime, "ithout persisting in the idea involved in the threat. 0ubse1uent acts did not persist. '. 6erson orally threatens another "ith harm not constituting a felony. L. ELEMENTS O' (RA)E COERCIONS: (236) 1. That a person prevented another from doing something != not to do something against his "ill, be it right or "rong? 2. That the prevention or compulsion be effected by violence, of force as "ould produce intimidation and control the "ill. '. That the person that restrained the "ill and liberty by another had not the authority of la" or the right to do so, or, in other "ords, that the restraint

'. ELEMENTS O' TRESPASS TO 4ELLIN(: (236) 1. That the offender is a private person. 2. That he enters the d"elling of another. '. That such entrance is against the latter;s "ill. $otes 1. Cualifying circumstance if the offense is committed by means of violence or intimidation, the penalty is higher 2. There must be an opposition to the entry of the accused '. Implied prohibition is present considering the situation + late at night and everyone;s asleep or entrance "as made through the "indo" ). 6rohibition is not necessary "hen violence or intimidation is employed by the offender 2. %hen there is no overt act of the crime intended to be committed, this is the crime 4. May be committed even by the o"ner .as against the actual occupant/ 5. Not applicable to a. entrance is for the purpose of preventing harm to himself, the occupants or a third person b. purpose is to render some service to humanity or *ustice c. place is a cafD, tavern etc "hile open 7. &edina case "hen the accused entered the d"elling through the "indo", he had no intent to kill any person inside, but the intention to kill came to his mind "hen he "as being arrested by the occupants thereof, the crime of trespass to d"elling is a separate and distinct offense from frustrated homicide (. ELEMENTS O' OTHER 'ORMS O' TRESPASS: (237) 1. That the offender enters the closed premises or the fenced estate of another. 2. That the entrance is made "hile either of them is uninhabited. '. That the prohibition to enter be manifest. ). That the trespasser has not secured the permission of the o"ner or the caretaker thereof. H. (RA)E THREATS 4HERE O''EN ER ATTAINE HIS PURPOSE: (232) (cts punishable 1. &y threatening another "ith the infliction upon his person, honor or property that of his family of any "rong amounting to a crime and demanding money or imposing any other condition, even though not unla"ful and the offender .Note threat is "ith condition/ Elements a. That the offender threatens another person "ith the infliction upon the latter;s person, honor or property, or

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1E Criminal Law 2 Reviewer 6 A/Y 2009-2010

shall not be made under authority of la" or in the e9ercise of any la"ful right. M. 1. 2. '. ELEMENTS O' LI(HT COERCIONS: (232) That the offender must be a creditor. That he seiBes anything belonging to his debtor. That the seiBure of the thing be accomplished by means of violence or a display of material force producing intimidation? ). That the purpose of the offender is to apply the same to the payment of the debt. N. ELEMENTS O' OTHER SIMILAR COERCIONS: (233) ELEMENTS O' NO. 7 1. That the offender is any person, agent or officer of any association or corporation. 2. That he or such firm or corporation has employed laborers or employees. '. That he forces or compels, directly or indirectly, or kno"ingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from his or from said firm or corporation. ELEMENTS O' NO. 2 1. That the offender pays the "ages due a laborer or employee employed by him by means of tokens or ob*ects. 2. That those tokens or ob*ects are other than the legal tender currency to the 6hilippines. '. That such employee or laborer does not e9pressly re1uest that he be paid by means of tokens or ob*ects. O. ELEMENTS O' 'ORMATION; MAINTENANCE; AN PROHIBITION O' COMBINATION O' CAPITAL OR LABOR THROU(H )IOLENCE OR THREATS: (235) 1. That the offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal e9ercise of their industry or "ork 2. That the purpose is to organiBe, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employees. III. ISCO)ERY AN RE)ELATION O' SECRETS A. ELEMENTS O' ISCO)ERIN( SECRETS THROU(H SEI<URE O' CORRESPON ENCE: (256) 1. That the offender is a private individual or even a public officer not in the e9ercise of his official function, 2. That he seiBes the papers or letters of another. '. That the purpose is to discover the secrets of such another person. ). That offender is informed of the contents or the papers or letters seiBed. $otes% 1. Not applicable to parents "ith respect to minor children 2. $ontents need not be secret but purpose prevails '. $ircumstances 1ualifying the offense "hen the offender reveals contents of such papers or letters of another to a ' rd person, the penalty is higher B. ELEMENTS O' RE)EALIN( SECRETS 4ITH ABUSE O' O''ICE: (257) 1. That the offender is a manager, employee or =obbery "ith violence Intent to gain Immediate harm Erave threats No intent to gain Intimidation? promises some future harm or in*ury Erave coercion None Intimidation .effect/ is immediate and offended party is compelled to do something against his "ill ."An right or "rong/

servant. 2. That he learns the secrets of his principal or master in such capacity. '. That he reveals such secrets. C. ELEMENTS O' RE)ELATION O' IN USTRIAL SECRETS: (252) 1. That the offender is a person in charge, employee or "orkman of a manufacturing or industrial establishment. 2. That the manufacturing or industrial establishment has a secret of the industry "hich the offender has learned. '. That the offender reveals such secrets. ). That the pre*udice is caused to the o"ner. TITLE TEN I. CRIMES A(AINST PROPERTY A. ELEMENTS O' ROBBERY IN (ENERAL: (253) 1. That there be personal property belonging to another. 2. That there is unla"ful taking of that property. '. That the taking must be "ith intent to gain, and ). That there is violence against or intimidation of any person, or force upon anything. $otes% 1. &elonging to another + person from "hom property "as taken need not be the o"ner, legal possession is sufficient 2. Name of the real o"ner is not essential so long as the personal property taken does not belong to the accused e9cept if crime is robbery "ith homicide '. Taking of personal property + must be unla"ful? if given in trust + estafa ). (s to robbery "ith violence or intimidation + from the moment the offender gains possession of the thing even if offender has had no opportunity to dispose of the same, the unla"ful taking is complete 2. (s to robbery "ith force upon things + thing must be taken out of the building 4. Intent to gain + presumed from unla"ful taking 5. Taking must not be under the claim of title or o"nership 7. %hen there;s no intent to gain but there is violence in the taking + grave coercion

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,. 1-. 11. Fiolence or intimidation must be against the person of the offended party, not upon the thing Eeneral rule violence or intimidation must be present before the GtakingH is complete >9cept "hen violence results in + homicide, rape, intentional mutilation or any of the serious physical in*uries in par 1 and 2 of art 24', the taking of the property is robbery comple9ed "ith any of these crimes under art 2,), even if taking is already complete "hen violence "as used by the offender :se of force upon things + entrance to the building by means described in arts 2,, and '-2 .offender must enter/ %hen both violence or intimidation and force upon things concur + it is robbery "ith violence c. robbery "ith intimidation + acts done by the accused "hich by their o"n nature or by reason of the circumstances inspire fear in the person against "hom they are directed 1ualifying circumstances in robbery "ith violence or intimidation of persons, if any of the offenses defined in subdivisions ', ) and 2 of (rt 2,) is committed a. in an uninhabited place or b. by a band or c. by attacking a moving train, street car, motor vehicle or airship, or d. by entering the passenger;s compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or e. on a street, road, high"ay or alley and the intimidation is made "ith the use of firearms, the offender shall be punished by the ma9 period of the proper penalties prescribed in art 2,)

2.

12. 1'.

B. ELEMENTS O' ROBBERY 4ITH )IOLENCE A(AINST OR INTIMI ATION O' PERSON: (25*) (cts punished as robbery "ith violence against or intimidation of persons &y reason or on occasion of the robbery, the follo"ing are committed 1. homicide 2. robbery accompanied "ith rape or intentional mutilation, 06I + insane, imbecile, impotent or blind '. 06I + lost the use of speech, hear, smell, eye, hand, foot, arm, leg, use of any such member, incapacitated for "ork habitually engaged in ). FiolenceAintimidation shall have been carried to a degree clearly unnecessary for the crime or "hen in the cause of its e9ecution + 06IAdeformity, or shall have lost any part of the body or the use thereof or shall have been ill or incapacitated for the performance of the "ork for I ,- days? I 'days 2. (ny kind of robbery "ith less serious physical in*uries or slight physical in*uries $otes% 1. special comple9 crimes .specific penalties prescribed/ a. R"==e#% >$t? ?"m$/$0e + if original design is robbery and homicide is committed + robbery "ith homicide even though homicide precedes the robbery by an appreciable time. If original design is not robbery but robbery "as committed after homicide as an afterthought + 2 separate offenses. 0till robbery "ith homicide + if the person killed "as an innocent bystander and not the person robbed and if death supervened by mere accident. b. R"==e#% >$t? #-.e + intent to commit robbery must precede rape. 6rosecution of the crime need not be by offended party + fiscal can sign the information. %hen rape and homicide co<e9ist, rape should be considered as aggravating only and the crime is still robbery "ith homicide

C. @UALI'IE ROBBERY 4ITH )IOLENCE OR INTIMI ATION (25+) $otes% 1. Must be alleged in the information 2. $an;t be offset by generic mitigating '. (rt 2,2 "ill not apply to robbery "A homicide, rape or 06I under par 1 of art 24' . ROBBERY BY A BAN : (256) $otes% 1. More than ' armed malefactors 2. 3iability for the acts of the other members of the band a. he "as a member of the band b. he "as present at the commission of a robbery by that band c. other members of the band committed an assault d. he did not attempt to prevent the assault '. $onspiracy to commit robbery "ith homicide + even if less than ) armed men ). $onspiracy to commit robbery only but homicide "as committed also on the occasion thereof + all members of the band are liable for robbery "ith homicide 2. $onspiracy is presumed "hen ) or more armed persons committed robbery 4. :nless the others attempted to prevent the assault + guilty of robbery by band only E. ATTEMPTE OR 'RUSTRATE ROBBERY 4ITH HOMICI E: (252) $otes% 1. %hether robbery is attempted or frustrated, penalty is the same 2. %here offense committed is attempted or frustrated robbery "ith serious physical in*uries + article )7 is applicable '. ELEMENTS O' E8ECUTION O' EE S BY MEANS O' )IOLENCE OR INTIMI ATION: (253) 1. That the offender has intent to defraud another. 2. That the offender compels him to sign, e9ecute, or deliver any public instrument or document.

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'. That the compulsion is by means of violence or intimidation. 14. >.g. pretending to be police to be able to enter .not pretending after entrance/ ELEMENTS O' ROBBERY 4ITH 'ORCE UPON SUB I)ISION (B) OR ART. 255 1. That the offender is inside a d"elling house, public building, or edifice devoted to religious "orship, regardless of the circumstances under "hich he entered it 2. That the offender takes personal property belonging to another "ith intent to gain, under any of the follo"ing circumstances. a. by the breaking of doors, "ardrobes, chests, or any other kind of locked or sealed furniture or receptacle, or b. by taking such furniture or ob*ects a"ay to be broken or forced open outside the place of the robbery. $otes% 1. >ntrance . no matter ho" done/ 2. !ffender may be servants or guests '. 8estruction of keyhole of cabinet is robbery here ). %hen sealed bo9 is taken out for the purpose of breaking it, no need to open + already consummated robbery 2. >stafa + if bo9 is in the custody of acc 4. Theft + if bo9 found outside and forced open H. ROBBERY IN AN UNINHABITE BY A BAN : (366) I. PLACE AN

(. ELEMENTS O' ROBBERY IN AN INHABITE HOUSE OR PUBLIC BUIL IN( OR E I'ICE E)OTE TO 4ORSHIP: (255) 1. That the offender entered .a/ an inhabited house, or .b/ public buildings, or .c/ edifice devoted to religious "orship. 2. That the entrance "as effected by any of the follo"ing means a. Through an opening not intended for entrance or egress. b. &y breaking any "all, roof, or floor or breaking any door or "indo". c. &y using false keys, picklocks or similar tools or. d. &y using any fictitious name or pretending the e9ercise of public authority. '. That once inside the building, the offender took personal property belonging to another "ith intent to gain. $otes% 1. Includes dependencies .stair"ays, hall"ays, etc./ 2. Inhabited house + any shelter, ship or vessel constituting the d"elling of one or more person even though temporarily absent + dependencies, courts, corals, barns, etc. '. N!T IN$3:8>8 + !=$#(=8, 3(N80 @!= $:3TIF(TI!N. ). Important for robbery by use of force upon things, it is necessary that offender enters the building or "here ob*ect may be found. N! >NT=J, N! =!&&>=J 2. >ntrance is necessary + mere insertion of hand is not enough ."hole body/? not to get out but to enter + therefore, evidence to such effect is necessary 4. ' v. (amahang + intent to rob being present is necessary 5. 6lace house or building? not car 7. 6ublic building + every building o"ned, rented or used by the government .though o"ned by private persons/ though temporarily vacant ,. Not robbery + passing through open door but getting out of a "indo" 1-. !utside door must be broken, smashed. Theft + if lock is merely removed or door "as merely pushed 11. '-lse Ae%s + genuine keys stolen from the o"ner or any keys other than those intended by the o"ner for use in the lock 12. P$/Al"/As + specially made, adopted for commission of robbery 1'. 1e% + stolen not by force, other"ise, it;s robbery by violence and intimidation against persons 1). '-lse Ae% + used in opening house and not furniture inside, other"ise, theft .for latter to be robbery., must be broken and not *ust opened/ 12. (en. RBle outside door. EC/e.t$"n inside door in a separate d"elling

4HAT IS AN UNINHABITE HOUSE; PUBLIC BUIL IN( OR BUIL IN( E ICATE TO RELI(IOUS 4ORSHIP AN THEIR EPEN ENCIES: (367) $otes% 1. dependencies + are all interior courts, corrals, "arehouses, granaries or enclosed places a. contiguous to the building b. having an interior entrance connected there"ith c. "hich form part of the "hole 2. Earage + must have ' re1uirements. >9ception orchardsAlands J. ELEMENTS O' ROBBERY IN AN UNINHABITE PLACE OR IN A PRI)ATE BUIL IN(: (362) 1. That the offender entered an uninhabited place or a building "hich "as not a d"elling house, not a public building, or not an edifice devoted to religious "orship. 2. that any of the follo"ing circumstances "as present a. That entrance "as effected through an opening not intended for entrance or egress. b. ( "all, roof, floor, or outside door or "indo" "as broken. c. The entrance "as effected through the use of false keys, picklocks or other similar tools. d. ( door, "ardrobe, chest, or any sealed or closed furniture or receptacle "as broken or e. ( closed or sealed receptacle "as removed, even if the same be broken open else"here. '. That "ith intent to gain the offender took therefrom personal property belonging to another. Notes

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1. 2. '. ). 0econd kind of robbery "ith force upon things Un$n?-=$te0 .l-/e + is an uninhabited building .habitable, not any of the ' places mentioned/ >9. "arehouse, freight car, store. >9ception pigsty 0ame manner as 2,, e9cept that "as entered into "as an uninhabited place or a building other than the ' mentioned in 2,,. >9ception does not include use of fictitious name or pretending the e9ercise of public authority &reaking of padlock .but not door/ is only theft @alse keys + genuine keys stolen from the o"ner or any other keys other than those intended by the o"ner for use in the lock forcibly opened

2. 4.

1. ROBBERY O' CEREALS; 'RUITS OR 'IRE 4OO IN AN UNINHABITE PLACE OR PRI)ATE BUIL IN(: (363) L. ELEMENTS O' ILLE(AL POSSESSION O' PIC1LOC1S OR SIMILAR TOOLS: (36*) 1. That the offender has in his possession picklocks or similar tools. 2. That such picklocks or similar tools are specially adopted to the commission of robbery. '. That the offender does not have la"ful cause for such possession. $ote% (ctual use of the same is not necessary M. ELEMENTS O' 'ALSE 1EYS: (36+) 1. 6icklocks, etc. 2. Eenuine key stolen from o"ner. '. (ny key other than those intended by o"ner for use in the lock forcibly opened by the offender $otes% 1. 6ossession of false keys here not punishable 2. If key "as entrusted and used to steal, not robbery .not stolen/ II. BRI(AN A(E A. BRI(AN A(E: (366) &rigands + more than three armed persons forming a band PB#."se: a. =obbery in high"ay b b. Kidnapping for e9tortion or ransom. c. (ny other purpose to be obtained by means of force and violence. P#esBm.t$"n "! B#$,-n0-,e: a. if members of la"less band and possession of unlicensed firearms .any of them/ b. possession of any kind of arms .not *ust firearm/ BRI(AN A(E 6urposes are given Mere formation of a band for the above purpose ROBBERY IN BAN !nly to commit robbery, not necessarily in hi<"ay If the purpose is to commit a part robbery Necessary to prove that band actually committed robbery

B. ELEMENTS O' AI IN( AN ABETTIN( A BAN O' BRI(AN S: (362) 1. That there is a band of brigands. 2. That the offender kno"s the band to be of brigands. '. That the offender does any of the follo"ing acts a. he in any manner aids, abets or protects such band if brigands, or b. he gives them information of the movements of the police or other peace officers of the government or c. #e ac1uires or receives the property taken by such brigands. $otes% 1. 68 2'2 + brigandage. 0eiBure of any person for .a/ ransom? .b/ e9tortion or other unla"ful purpose? .c/ taking a"ay of property by violence or intimidation or force upon things or other unla"ful means 2. $ommitted by any person '. !n any 6hil hi<"ay III. THE'T A. ELEMENTS O' THE'T: (363) 1. That there be taking of personal property. 2. That said property belongs to another. '. That the taking be done "ith intent to gain. ). That the taking be done "ithout the consent of the o"ner. 2. That the taking be accomplished "ithout the use of violence against or intimidation of persons or force upon things. 6ersons liable 1. Those "ho a/ "ith intent to gain b/ but "ithout violence against or intimidation of persons not force upon things c/ take d/ personal property e/ of another f/ "ithout the latter;s consent 2. Those "ho a/ having found lost property b/ fail to deliver the same to local authorities or its o"ner Notes 1. =etention of moneyAproperty found is theft. =etention is failure to return .intent to gain/ 2. Kno"ledge of o"ner is not re1uired, kno"ledge of loss is enough '. @inder in la" is liable '. Those "ho a/ after having maliciously damaged the property of another b/ remove or make use of the fruits or ob*ect of the damage caused by them Note Killing of cattle of another "hich destroyed his property and getting meat for himself ). Those "ho a/ enter an enclosed estate or a field "here b/ trespass is forbidden or "hich belongs to another and, "ithout the consent of its o"ner c/ hunts or fish upon the same or gather fruits, cereals or other forest or farm products

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Notes 1. Theft is consummated "hen offender is able to place the thing taken under his control and in such a situation as he could disclose of it at once .though no opportunity to dispose/ i.e, the control test 2. ' v. )ino + applies only in theft of bulky goods .meaning there has to be capacity to dispose of the things/. !ther"ise, ' v. *spiritu + full possession is enough '. 0ervant using car "ithout permission deemed 1ualified theft though use "as temporary ). =eyes says there must be some character of permanency in depriving o"ner of the use of the ob*ect and making himself the o"ner, therefore must e9clude G*oyrideH 2. Theft if after custody .only material possession/ of ob*ect "as given to the accused, it is actually taken by him .no intent to return/ e.g. felonious conversion. &ut it is estafa if *uridical possession is transferred e.g., by contract of bailment 4. Includes electricity and gas a. inspector misreads meter to earn b. one using a *umper 5. 0elling share of co<partner is not theft 7. 0alary must be delivered first to employee? prior to this, taking of 6hp is theft ,. If offender claims property as his o"n .in good faith/ + not theft .though later found to be untrue. If in bad faith + theft/ 1-. Eain is not *ust 6hp + satisfaction, use, pleasure desired, any benefit .e.g. *oyride/ 11. (ctual gain is not necessary .intent to gain necessary/ 12. (llege lack of consent in info is important B. ELEMENTS O' HUNTIN(; 'ISHIN( OR (ATHERIN( 'RUITS; ETC. IN ENCLOSE ESTATE (PAR. NO.3; ART. 363) 1. That there is an enclosed estate or a field "here trespass is forbidden or "hich belongs to another? 2. That the offender enters the same. '. That the offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products, and ). That the hunting or fishing or gathering of products is "ithout the consent of the o"ner. $ote @ish not in fishpond, other"ise, 1ualified C.PENALTIES 'OR @UALI'IE THE'T: (365) . ELEMENTS O' @UALI'IE THE'T: (376) 1. $ommitted by domestic servant, or 2. %ith grave abuse of confidence, or '. 6roperty stolen is a. motor vehicle b. mail matter c. large cattle d. coconut from plantation e. fish from fishpond or fishery, or ). !n occasion of calamities and civil disturbance. $otes% 1.

D,#-Ee -=BseH + high degree of confidence e.g. guests 2. no confidence, not 1ualified theft '. theft + material possession; estafa + *uridical possession ). FB-l$!$e0: if done by one "ho has access to place "here stolen property is kept e.g., guards, tellers 2. Novation theory applies only if there;s a relation 4. industrial partner is not liable for CT .estafa/ 5. "hen accused considered the deed of sale as sham .modus/ and he had intent to gain, his absconding is CT 7. see carnapping la" =( 42', ,. motor vehicle in kabit system sold to another<theft. Motor vehicle not used as 6: in kabit system but under K of lease<estafa 1-. m-$l m-tte# + private mail to be CT, Not postmaster + (rt. 224 11. theft of large cattle

E. ELEMENTS O' THE'T O' PROPERTY O' THE NATIONAL LIBRARY AN NATIONAL MUSEUM: (377) I). USURPATION A. ELEMENTS O' OCCUPATION O' REAL PROPERTY OR USURPATION O' REAL RI(HTS IN PROPERTY: (372) 1. That the offender takes possession of any real property or usurps any real rights in property. 2. That the real property or real rights belong to another. '. That violence against or intimidation of persons is used by the offender in occupying real property or usurpation real rights in property. ). That there is intent to gain. B. ELEMENTS O' ALTERIN( BOUN ARIES OR LAN MAR1S: (373) 1. That there be boundary marks or monuments of to"ns, provinces, or estates, or any other marks intended to designate the boundaries of the same. 2. That the offender alters said boundary marks. ). CULPABLE INSOL)ENCY A. ELEMENTS O' 'RAU ULENT INSOL)ENCY: (37*) .culpable insolvency/ 1. That the offender is a debtor? that is, he "as obligations due and payable. 2. That he absconds "ith his property. '. That there be pre*udice to his creditors. )I. S4IN LIN( AN OTHER ECEITS A. ELEMENTS O' ESTA'A IN (ENERAL: (37+) 1. That the accused defrauded another .a./ by abuse of confidence, or .b/ or means of deceit and 2. That damage or pre*udice capable of pecuniary estimation is caused to the offended party or third person

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B. ELEMENTS O' ESTA'A 4ITH UN'AITH'ULNESS: (37+) 1. That the offender has an onerous obligation to deliver something of value. 2. That he alters its substance, 1uantity, or 1uality. '. That damage or pre*udice is caused to another. C. ELEMENTS O' ESTA'A 4ITH ABUSE O' CON'I ENCE UN ER SUB I)ISION NO.7 PAR. (B); O' ART.37+ 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 dental on his part of such receipt. '. that such misappropriation or conversion or dental is to the pre*udice of another and ). That there is a demand made by the offended party to the offender. . 2N ELEMENT O' ESTA'A 4ITH ABUSE O' CON'I ENCE UN ER PARA(RAPH (B); SUB I)ISION N6.7; ART. 37+ G 3 4AYS O' COMMITTIN(: 1. &y misappropriating the thing received. 2. &y converting the thing received. '. &y denying that the thing "as received. $otes% 1. :nfaithful or (buse of $onfidence a. by altering the substance b. e9isting obligation to deliver + even if it is not a sub*ect of la"ful commerce c. thing delivered has not been fully or partially paid for + not estafa c. no agreement as to 1uality + No estafa if delivery is unsatisfactory 2. &y misappropriating and converting a. thing is received by offender under transactions transferring *uridical possession, not o"nership b. under 68 112 .Trust =eceipts 3a"/ + failure to turn over to the bank the proceeds of the sale of the goods covered by T= + >stafa c. same thing received must be returned other"ise estafa? sale on credit by agency "hen it "as to be sold for cash + estafa d. Est-!- + not affected by Novation of $ontract because it is a public offense e. Novation must take place before criminal liability "as incurred or perhaps prior to the filing of the criminal information in court by state prosecutors f. &isappropriating + to take something for one;s o"n benefit g. +onverting + act of using or disposing of another;s property as if it "as one;s o"n? thing has been devoted for a purpose or use different from that agreed upon h. There must be pre*udice to another + not necessary that offender should obtain gain i. 6artners + No estafa of money or property received for the partnership "hen the business is commercial and profits accrued. &:T if property is received for specific purpose and is misappropriated + estafaK *. @ailure to account after the 8>M(N8 is circumstantial evidence of misappropriation k. 8>M(N8 is not a condition precedent to e9istence of estafa "hen misappropriation may be established by other proof l. In theft, upon delivery of the thing to the offender, the o"ner e9pects an immediate return of the ting to him + other"ise, >stafa m. 0ervant, domestic or employee "ho misappropriates a thing he received from his master is N!T guilty of estafa but of 1ualified theft %hen in the prosecution for malversation the public officer is ac1uitted, the private individual allegedly in conspiracy "ith him may be held liable for estafa

'.

ESTA'A 4ITH ABUSE O' CON'I ENCE !ffenders are entrusted "ith funds or property and are continuing offenses @unds al"ays private !ffender private individual, or public officer not accountable $ommitted by misappropriating, converting, denying having received money

MAL)ERSATION offenders are entrusted "ith funds or property and are continuing offenses @unds public funds or property !ffender public officer accountable for public funds $ommitted by appropriating, taking, Misappropriating

E. ELEMENTS O' ESTA'A BY TA1IN( UN UE A )ANTA(E O' THE SI(NATURE IN BLAN1: (37+) 1. That the paper "ith the signature of the offended party be in blank. 2. That the offended party should have delivered it to offender. '. That above the signature of the offended party a document is "ritten by the offender "ithout authority to do so. ). That the document so "ritten creates a liability of, or causes damage to, the offended party or any third person. $ote% If the paper "ith signature in blank "as stolen + @alsification if by making it appear that he participated in a transaction "hen in fact he did not so participate '. ELEMENTS O' ESTA'A BY MEANS O' ECEIT: (37+) 1. that there must be a false pretense, fraudulent means must be made or e9ecuted prior to or 2. That such false pretense, fraudulent act or fraudulent means must be made or e9ecuted prior to or simultaneously "ith the commission of the fraud. '. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he "as induced to part "ith his money or property because of the false pretense, fraudulent act, or fraudulent means. ). That as a result thereof, the offended party suffered damage.

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$otes% 1. @alse pretenses or fraudulent acts + e9ecuted prior to or simultaneously "ith delivery of the thing by the complainant 2. There must be evidence that the pretense of the accused that he possesses po"erAinfluence is false (. ELEMENTS O' ESTA'A BY POST ATIN( A CHEC1 OR ISSUIN( A CHEC1 IN PAYMENT O' AN OBLI(ATION: (37+) 1. That the offender postdated a check, or issued a check in payment of an obligation. 2. That such postdatig or issuing a check "as done "hen the offender had no funds in the bank or his funds deposited therein "ere not sufficient to cover the amount of the check. $otes% 1. good faith is a defense. . ''. V,. VI((-'-$)., 24 6#I3.'1/ 2. dishonor from lack of funds to prima facie evidence of deceit or failure to make good "ithin three days after notice of. '. No funds in the bank or his funds are not sufficient ). If check "as issued in payment of pre< e9isting debt + no estafa 2. !ffender must be able to obtain something from the offended party by means of the check he issues and delivers 4. If postdating a check issued as mere guaranteeApromissory note + no estafa H. ELEMENTS O' O''ENSE E'INE IN THE 'IRST PARA(RAPH O' SECTION 7: BP 22 1. That a person makes or dra"s and issues any check. 2. That the check is made or dra"n and issued to apply on account or for value. '. That the person "ho makes or dra"s and issues the check kno"s at the time of issue that he does not have sufficient funds in or credit "ith the dra"ee bank for the payment of such check in full upon its presentment. ). That the check is subse1uently dishonored by the dra"ee bank for insufficiency of funds or credit, or "ould have been dishonored for the same reason had not the dra"ee, "ithout any valid reason, ordered the bank to stop payment. $ote @ailure to make good "ithin 2 banking days prima facie evidence of kno"ledge of lack and insufficiency I. ELEMENTS O' THE O''ENSE E'INE IN THE SECON PARA(RAPH O' SECTION 7: BP 22 1. That a person has sufficient funds in or credit "ith the dra"ee bank "hen he makes or dra"s and issues a check. 2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented "ithin a period of ,- days from the date appearing thereon. '. That the check is dishonored by the dra"ee bank. $ote% @ailure to make good "ithin 2 banking days prima facie evididence of kno"ledge of lack and insufficiency J. BY OBTAININ( 'OO OR CRE IT AT HOTELS; INNS; RESTAURANTS ETC. 1. ELEMENTS O' ESTA'A BY IN UCIN( ANOTHER TO SI(N ANY OCUMENTS: (37+) 1. That the offender induced the offended party to sign a document. 2. That deceit be employed to make him sign the document. '. That the offended party personally signed the document. ). That pre*udice be caused. $ote% If offended party "illingly signed the document and there "as deceit as to the character or contents of the document + falsification? but "here the accused made representation to mislead the complainants as to the character of the documents < estafa L. ELEMENTS O' ESTA'A BY REMO)IN(; CONCEALIN( OR ESTROYIN( OCUMENTS: (37+) 1. That there be court records, office files, documents or any other papers. 2. That the offender removed, concealed or destroyed any of them. '. That the offender had intent to defraud another. $ote No intent to defraud + destroying or removal L malicious mischief M. AMA(E OR PREJU ICE CAPABLE O' PECUNIARY ESTIMATION: (37+) .second element of any form of estafa/ THE ELEMENTS O' AMA(E OR PREJU ICE MAY CONSIST O' THE ''.: 1. The offender party being deprived of his money or property, as a result of the defraudation. 2. 8isturbance in property right or '. Temporary pre*udice. N. ELEMENTS O' S4IN LIN( (PAR.7) BY CON)EYIN(; SELLIN(; ENCUMBERIN(; OR MORT(A(IN( ANY REAL PROPERTY; PRETEN IN( TO BE THE O4NER O' THE SAME: (376) 1. That the thing be immovable, such as a parcel of land or a building. 2. That the offender "ho is not the o"ner of said property represented that he is the o"ner thereof. '. That the offender should have e9ecuted an act of o"nership .selling, leasing, encumbering or mortgaging the real property/. ). That the act be made to the pre*udice of the ESTA'A 6rivate individual "as entrusted Intent to defraud o"ner or a third person. IN'I ELITY IN THE CUSTO Y O' OCUMENTS 6ublic officer entrusted No intent to defraud

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O. ELEMENTS O' S4IN LIN( (PAR. 2) BY ISPOSIN( O' REAL PROPERTY AS 'REE 'ROM ENCUMBRANCE; ALTHOU(H SUCH ENCUMBRANCE BE NOT RECOR E : (376) 1. that the thing disposed of be real property. 2. That the offender kne" that the real property "as encumbered, "hether the encumbrance is recorded or not. '. That there must be e9press representation by the offender that the real property is free from encumbrance. ). That the act of disposing of the real property be made to the damage of another. P. ELEMENTS O' S4IN LIN( (PAR.3) BY 4RON('ULLY TA1IN( BY THE O4NER HIS PERSONAL 'ROM ITS LA4'UL POSSESSOR: (376) 1. That the offender is the o"ner of personal property. 2. That said personal property is in the la"ful possession of another. '. That the offender "rongfully takes it from its la"ful possessor. ). That pre*udice is thereby caused to the possessor or third person. @. ELEMENTS O' S4IN LIN( (PAR. 6) BY SELLIN(; MORT(A(IN( OR ENCUMBERIN( REAL PROPERTY OR PROPERTIES 4ITH 4HICH THE O''EN ER (UARANTEE THE 'UL'ILLMENT O' HIS OBLI(ATION AS SURETY: (376) 1. That the offender is a surety in a bond given in a criminal or civil action. 2. That he guaranteed the fulfillment of such obligation "ith his real property or properties. '. That he sells, mortgages, or, in any other manner encumbers said real property. ). That such sale, mortage or encumbrance is .a/ "ithout e9press authority from the court, or .b/ made before the cancellation of his bond, or .c/ before being relieved from the obligation contracted by him. 1. 2. '. That personal property is already pledged under the terms of the chattel mortgage la". That the offender, "ho is the mortgagee of such property, sells or pledges the same or any part thereof. That there is no consent of the mortgagee "ritten on the back of the mortgage and noted on the record thereof in the office of the register of deeds.

B. ELEMENTS O' 1NO4IN(LY REMO)IN( MORT(A(E PERSONAL PROPERTY: (375) 1. that personal property is mortgaged under the chattel mortage la". 2. That the offender kno"s that such property is so mortaged. '. That he removes such mortgaged personal to any province or city other than the one in "hich it "as located at the time of the e9ecution of the mortgage. ). that the removal is permanent. 2. That there is no "ritten consent of the mortgagee or his e9ecutors, administration or assigns to such removal. )III. ARSON AN OTHER CRIMES IN)OL)IN( ESTRUCTIONS .$ote 68 141' e9pressly repealed or amended (rts '2-<'24, but 68 15)) revived (rt '2-/ A. ELEMENTS O' ARSONS O' PROPERTY O' SMALL )ALUES 1. That an uninhabited hut, storehouse, barn, shed or any other property is burned 2. That the value of the property burned does not e9ceed 22 pesos '. That the burning "as done at a time or under circumstances "hich clearly e9clude all danger of the fire spreading B. ELEMENTS O' CRIME IN)OL)IN( ESTRUCTION 1. That the offender causes destruction of the property 2. That the destruction "as done by means of a. e9plosion b. discharge of electric current c. inundation d. sinking or stranding of a vessel e. damaging the engine of the vessel f. taking up rails from the rail"ay track g. destroying telegraph "ires and posts or those of any other system h. other similar effective means of destruction C. ELEMENTS O' BURNIN( ONE9S PROPERTY AS A MEANS TO COMMIT ARSON 1. That the offender set fire to or destroyed his o"n property 2. That the purpose of the offender in doing so "as to commit arson or to cause a great destruction '. That the property belonging to another "as burned or destroyed . ELEMENTS O' ARSON 1. That the property burned is the e9clusive property of the offender

R. ELEMENTS O' S4IN LIN( A MINOR: (372) 1. That the offender takes advantage of the ine9perience or emotions or feelings of a minor. 2. That he induces such minor .a/ ro assume an obligation, or .b/ to give release, or .c/ to e9ecute a transfer of any property right. '. That the consideration is .a/ some loan of money .b/ credit or .c/ other personal property. ). That the transaction is to the detriment of such minor. S. ELEMENTS O' OTHER ECEITS: (373) 1. not mentioned above? 2. interpretation of dreams, forecast, future<telling for profit or gain. )II. CHATTEL MORT(A(E A. ELEMENTS O' SELLIN( OR PLE (IN( PERSONAL PROPERTY ALREA Y PLE (E : (375)

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2. That .a/ the purpose of the offender is burning it is to defraud or cause damage to another or .b/ pre*udice is actually caused, or .c/ the thing burned is a building in an inhabited place I8. MALICIOUS MISCHIE' A. ELEMENTS O' MALICIOUS MISCHIE': (326) 1. That the offender deliberately caused damage to the property of another. 2. That such act does not constitute arson or other crimes involving destruction. '. That the act damaging another;s property be committed merely for the sake of damaging it. $otes% 1. M-l$/$"Bs m$s/?$e! + "illful damaging of another;s property for the sake of causing damage due to hate, revenge or other evil motive 2. No negligence '. >9ample. Killing the co" as revenge ). If no malice + only civil liability 2. 8amage is also diminution in value 4. &ut after damaging the thing, he used it L theft 5. 8amage is not incident of a crime .breaking "indo"s in robbery/ B. SPECIAL CASES O' MALICIOUS MISCHIE': (323) 1. !bstruct performance of public functions. 2. :sing poisonous or corrosive substances. '. 0preading infection or contagious among cattle. ). 8amage to property of national museum or library, archive, registry, "ater"orks, road, promenade, or any other thing ised in common by the public. $ote Cualified malicious mischief + no uprising or sedition .M1/ C. ELEMENTS O' OTHER MISCHIE': (325) 1. Not included in '27 a. scattering human e9crement b. killing of co" as an act of revenge . ELEMENTS O' AMA(E AN OBSTI)ATION TO MEANS O' COMMUNICATION: (336) $otes% 1. done by damaging rail"ays, telegraph, telephone lines, electric "ires, traction cables, signal system of rail"ays 2. removing rails from tracks is destruction .art '2)/ '. not applicable "hen telegraphAphone lines don;t pertain to rail"ays .e9ample for transmission of electric po"erAlight/ ). people killed as a result a. murder + if derailment is means of intent to kill b. none + art )7 2. circumstance 1ualifying the offense if the damage shall result in any derailment of cars, collision or other accident + a higher penalty shall be imposed E. ELEMENTS O' ESTROYIN( OR AMA(IN( STATUES; PUBLIC MONUMENTS OR PAINTIN(S: (337) '. ELEMENTS O' E8EMPTION 'ROM CRIMINAL LIABILITY IN CRIMES A(AINST PROPERTY: (332) 6ersons e9empt from criminal liability 1. 0pouse, ascendants and descendants or relatives by affinity in the same line 2. The "ido"ed spouse "ith respect to the property "Ac belonged to the deceased spouse before the same passed into the possession of another '. &rothers and sisters and brothers<in<la" and sisters<in<la", if living together !ffenses involved in the e9emption 1. Theft 2. 0"indling '. Malicious mischief Notes 1. >9emption is based on family relations 2. 6arties to the crime not related to the offended party still remains criminally liable '. 6ersons e9empt include a. stepfatherAmother .ascendants by affinity/ b. adopted children .descendants/ c. concubineAparamour .spouse/ d. common la" spouse .propert is part of their earnings/ TITLE ELE)EN CRIMES A(AINST CHASTITY A. ELEMENTS O' A ULTERY: (333) 1. That the "oman is married .even if marriage subse1uently declared void/ 2. That she has se9ual intercourse "ith a man not her husband. '. That as regards the man "ith "hom she has se9ual intercourses, he must kno" her to be married. $otes% 1. mitigated if "ife "as abandoned "ithout *ustification by the offended spouse .man is not entitled to this mitigating circumstance/ 2. attempted caught disrobing a lover B. ELEMENTS O' CONCUBINA(E: (33*) 1. That the man must be married. 2. That he committed any of the follo"ing acts a. Keeping a mistress in the con*ugal d"elling. b. #aving se9ual intercourse under scandalous circumstances "ith a "oman "ho is not his "ife. c. $ohabiting "ith her in any other place. '. That as regards the "oman she must kno" him to be married. $ote DS/-n0-lH consists in any reprehensible "ordAdeed that offends public conscience, redounds to the detriment of the feelings of honest persons and gives occasions to the neighbor;s spiritual damage and ruin

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C. ELEMENTS O' ACTS O' LASCI)IOUSNESS: (336) 1. That the offender commits any act of lasciviousness or le"dness. 2. That it is done under any of the follo"ing circumstances a. by using force or intimidation, or b. "hen the offended party is deprived of reason or other"ise unconscious, or c. "hen the offended party is under 12 years of age. '. That the offended party is another person of either se9. . ELEMENTS O' @UALI'IE SE UCTION O' A )IR(IN: (332) T"o classes of 1ualified seduction 1. 0eduction of a virgin over 12 and under 17 years of age by certain persons, such as a person in authority, priest, teachers etc and 2. 0eduction of a sister by her brother or descendant by her ascendant, regardless of her age or reputation .incestuous seduction/ Elements: 1. That the offended party is a virgin, "hich is .presumed if she unmarried and of good reputation./ 2. That she must be over 12 and under 17 years of age. '. That the offender has se9ual intercourse "ith her. ). That there is abuse of authority, confidence or relationship on the part of the offender . person entrusted "ith education or custody of victim? person in public authority, priest? servant/ Pe#s"ns l$-=le: 1. Those "ho abuse their authority a. persons in public authority b. guardian c. teacher d. person "ho, in any capacity, is entrusted "ith the education or custody of the "oman seduced 2. Those "ho abused the confidence reposed in them a. priest b. house servant c. domestic '. Those "ho abused their relationship a. brother "ho seduced his sister b. ascendant "ho seduced his descendant E. ELEMENTS O' SIMPLE SE UCTION: (333) 1. That the offended party is over 12 and under 17 years of age. 2. That she must be of good reputation, single or "ido". '. That the offender has se9ual intercourse "ith her. ). That it is committed by means of deceit. $ote common form is unconditional promise to marry '. ELEMENTS O' ACTS O' LASCI)IOUSNESS 4ITH THE CONSENT O' THE O''EN E PARTY: (335) 1. that the offender commits acts of lasciviousness or le"dness. 2. That the acts are committed upon a "oman "ho is virgin or single or "ido" of good reputation, under 17 years of age but over 12 years, or a sister or descendant regardless of her reputation or age. '. that the offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit. (. ELEMENTS O' CORRUPTION O' MINORS: (3*6) (ct punishable &y promoting or facilitating the prostitution or corruption of persons underage to satisfy the lust of another H. ELEMENTS O' 4HITE SLA)E TRA E: (3*7) (cts penaliBed 1. >ngaging in the business of prostitution 2. 6rofiting by prostitution '. >nlisting the servic9e of "omen for the purpose of prostitution I. ELEMENTS O' 'ORCIBLE AB UCTION: (3*2) 1. That the person abducted is any "oman, regardless of her age, civil status, or reputation. 2. That the abduction is against her "ill. '. That the abduction is "ith le"d designs. $ote 0e9ual intercourse is N!T necessary +rimes against chastity where age and reputation of victim are immaterial% rape, acts of lasciviousness, 1ualified seduction of sisterAdescendant, forcible abduction J. ELEMENTS O' CONSENTE AB UCTION: (3*3) 1. That the offended party must be a virgin. 2. That she must be over 12 and under 17 years of age. '. That the taking a"ay of the offended party must be "ith her consent, after solicitation or ca*olery from the offender. ). That the taking a"ay of the offended party must be "ith le"d designs. 1. PROSECUTION O' A ULTERY; CONCUBINA(E; SE UCTION; AB UCTION RAPE AN ACTS O' LASCI)IOUSNESS (3**) 1. (dultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. 0eduction, abduction, rape or acts of lasciviousness must be prosecuted upon complaint signed by a. offended party b. by her parents c. grandparents d. guardians in the order in "hich they are named above $ote Marriage of the offender "ith the offended party e9tinguishes the criminal action or remit the penalty already imposed upon him. This applies as "ell to the accomplices, accessories<after<the<fact. &ut marriages must be in good faith. This rule does not apply in case of multiple rape

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L. CI)IL LIABILITY O' PERSONS (UILTY O' RAPE; SE UCTION OR AB UCTION (3*+) 1. To idemnify the offended "omen 2. To ackno"ledge the offspring, unless the la" should prevent him from doing so '. In every case to support the offspring M. LIABILITY O' ASCEN ANTS; OTHER PERSONS ENTRUSTE 4ITH CUSTO Y O' O''EN E PARTY 4HO BY ABUSE O' AUTHORITY OR CON'I ENCE SHALL COOPERATE AS ACCOMPLIES: (3*6) TITLE T4EL)E CRIMES A(AINST THE CI)IL STATUS O' PERSONS A. SIMULATION O' BIRTHS; SUBSTITUTION O' ONE CHIL 'OR ANOTHER; AN CONCEALMENT OR ABAN ONMENT O' A LE(ITIMATE CHIL : (3*2) (cts 6unished 1. 0imulation of births 2. 0ubstitution of one child for another '. $oncealing or abandoning any legitimate child "ith the intent to cause such child to lose its civil status =e1uisites 1. The child must be legitimate 2. The offender conceals or abandons such child '. The offender has the intent to cause the child to lose its civil status >lements of 0imulation of &irth 1. $hild is baptiBed or registered in the =egistry of birth as hers 2. $hild loses its real status and ac1uiires a ne" one '. (ctor;s purpose "as to cause the loss of any trace as to the child;s true filiation B. USURPATION O' CI)IL STATUS: (3*3) $otes% 1. $ommitted by a person "ho represents himself as another and assumes the filiation or rights pertaining to such person 2. There must be criminal intent to en*oy the civil rights of another by the offender kno"ing he is not entitled thereto '. $ommitted by asuming the filiation, or the parental or con*ugal rights of another ). $ircumstances 1ualifying the offense penalty is heavier "hen the purpose of the impersonation is to defraud the offended party or hios heirs C. ELEMENTS O' BI(AMY: (3*5) 1. That the offender has been legally married. 2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the civil code. '. That he contracts a second or subse1uent marriage. ). That the second or subse1uent marriage has all the essential re1uisites for validity. $otes% 1. The crime does not fall "ithin the category of private crimes that can be prosecuted only at the instance of the offended party 2. ( simulated marriage is not marriage at all and can be used as a defense for bigamy '. There must be a summary proceeding to declare the absent spouse presumptively dead for purposes of remarriage ). @ailure to e9ercise due diligence to ascertain the "hereabouts of the 1st "ife is bigamy through reckless imprudence 2. ( *udicial declaration of the nullity of a marriage void ab initio is no" re1uired 4. !ne convicted for bigamy may be prosecuted for concubinage as both are distinct offenses 5. !ne "ho vouches that there is no legal impediment kno"ing that one of the parties is already married is an accomplice . ELEMENTS O' MARRIA(E CONTRACTE A(AINST PRO)ISIONS O' LA4S: (3+6) 1. That the offender contracted marriage. 2. That he kne" at the time that a. the re1uirement of the la" "ere not complied "ith, or b. The marriage "as in disregard of a legal impediment. $ote $ircumstance 1ualifying the offense if either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud E. ELEMENTS O' PREMATURE MARRIA(E: (3+7) (cts punished 1. ( "ido" "ho "ithin '-1 days from death of husband, got married or before her delivery, if she "as pregnant at the time of his death 2. ( "oman "hose marriage having been dissolved or annulled, married before her delivery or "ithin '-1 days after the legal separation '. ELEMENTS O' PER'ORMANCE O' ILLE(AL MARRIA(E CEREMONY: (3+2) (ct punished performance of any illegal marriage ceremony by a priest or minister of any religious denomination or sect or by civil authorities TITLE THIRTEEN CRIMES A(AINST HONOR A. ELEMENTS O' LIBEL E'AMATION: (3+3) 1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances. 2. That the imputation must be made publicly. '. That it must be malicious. ). That the imputation must be directed at a natural or *uridical person, or one "ho is dead. 2. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed. $otes% 1. 3ibel is a public and malicious imputation of a crime, or a vice or defect, real or imaginary or any act, commission, condition, status or circumstances tending to cause the dishonor, discredit or contempt of a

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natural or *uridical person, or to blacken the L$=el Pe#JB#% <false accusation need not be <false accusation is made made under oath under oath memory of one "ho is dead Kinds of malice .a/ malice in la"? .b/ malice in fact '. Malice is presumed to e9ist in in*urious publications ). 6ublication is the communication of the defamatory matter to some third personAs 2. 6erson libeled must be identified. &ut the publication need not refer by name to the libeled party. If not named it must be sho"n that the description of the person referred to in the defamatory publication "as sufficiently clear so that at least a ' rd person "ould have identified the plaintiff. 4. There are as many crimes as there are persons defamed. 5. To presume publication there must be a reasonable probability that the alleged a libelous matter "as thereby e9posed to be read or seen by 'rd persons. $riterion to determine "hether statements are defamatory 1. "ords are calculated to induce the hearers to suppose and understand that the person against "ho they are uttered "ere guilty of certain offenses, or are sufficient to impeach their honesty, virtue or reputation, or to hole the person up to public ridicule. /, v .0+onnel/ 2. construed not only as to the e9pression used but also "ith respect to the "hole scope and apparent ob*ect of the "riter..' v *ncarnacion/ 2. that the statements in the communication are made in good faith "ithout malice in fact b. fair and true report, made in good faith, "ithout any comments and remarks =e1uisites 1. that the publication of a report of an official proceeding is a fair and true report of a *udicial, legislative, or other official proceedings "hich are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer 2. that it is made in good faith '. that it is made "ithout any comments or remarks C. LIBEL BY MEANS O' 4RITIN( OR SIMILAR MEANS: (3++) $ote% >numerates the means by "hich libel may be committed "riting, printing, lithography, engraving, radio phonograph, painting, theatrical or cinematographic e9hibitions or any similar means . THREATENIN( TO PUBLISH LIBEL AN O''ER TO PRE)ENT SUCH PUBLICATION 'OR A COMPENSATION: (3+6) $ote $learly, *ust a case of blackmail<any unla"ful e9tortion of money by threats of accusation and e9posure <possible in light threats (rt 27' and in threat to publish (rt '24. E. ELEMENTS O' PROHIBITE PUBLICATION O' ACTS RE'ERRE TO IN THE COURSE O' O''ICIAL PROCEE IN(S: (3+2) 1. That the offender is a reporter, editor or manager of a ne"spaper, daily or magaBine. 2. That he publishes facts connected "ith the private life of another. '. That such facts are offensive to the honor, virtue and reputation of said person. $ote% >ven though made in connection "ith or under the prete9t that it is necessary in the narration of any *udicial or administrative proceedings "herein such facts have been mentioned. (acsa v I-+ 3acsa found that Mar1ueB "as not a proprietary member of 6$( thus not 1ualified to be president. #e "rote to the &!8 and to Mar1ueB. #e caused to publish the second letter. #>38 3etter is not privileged communication. To be classified as such it must be free from malice. Eranting that the letter "as privileged communication, "ritten out of a duty of an officer to"ards the members, such character "as lost "hen it "as published. '. ELEMENTS O' ORAL E'AMATIONISLAN ER: (3+3) 1. action of a serious and insulting nature .Erave slander/ 2. light insult or defamation + not serious in nature .simple slander/ @actors that determine gravity of the offense a/ e9pressions used '.

B. RE@UIREMENT O' PUBLICITY: (3+*) Kinds of privileged communication a. (bsolutely privileged + not actionable even if the actor has acted in bad faith b. Cualifiedly privileged + those "hich although containing defamatory imputations could not be actionable unless made "ith malice or bad faith General Rule: >very defamatory imputation is presumed malicious even if it be true, if no good intention and *ustifiable motive for making it is sho"n Exception: a. private communication in performance of legal, moral or social duty =e1uisites 1. that the person "ho made the communication had a legal, moral or social duty to make the communication or at least he had an interest to be upheld 2. that the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter

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b/ personal relations of the accused and the offended party c/ circumstances surrounding the case $otes% %ords uttered in the heat of anger constitute light oral defamation .' v )oronilla/ If the utterances "ere made publicly and "ere heard by many people and the accused at the same time levelled his finger at the complainant, oral defamation is committed 1' v ,alle2ue/ ELEMENTS O' SLAN ER BY EE : (3+5) 1. That the offender performs any act not included in any other crime against honor. 2. That such act is performed in the presence of other person or persons. '. That such act casts dishonor, discredit or contempt upon the offended party. $otes% a. 0eriousness depends on the social standing of offended party, the circumstances surrounding the act, the occasion, etc. b. The acts of slapping and bo9ing the "oman, a teacher, in the presence of many people has put her to dishonor, contempt and ridicule. . ' v +osta/ )istinctions a. :n*ust Fe9ation<irritation or annoyanceAanything that annoys or irritates "ithout *ustification. b. 0lander by 8eed<irritation or annoyance N attendant publicity and dishonor or contempt. c. (cts of lasciviousness<irritation or annoyance N any of ' circumstance provided in (rt''2 of =6$ on rape i. use of force or intimidation ii.deprivation of reason or rendering the offended unconscious offended party under 12 yrs of ageNle"d designs PERSONS RESPONSIBLE 'OR LIBEL (366) 1/ %ho are liable a. person "ho publishes, e9hibits or causes the publication or e9hibition of any defamation in "riting or similar means.par.1/ b. author or editor of a book or pamphlet c. editor or business manager of a daily ne"spaper magaBine or serial publication.par.2/ d. o"ner of the printing plant "hich publishes a libelous article "ith his consent and all other persons "ho in any "ay participate in or have connection "ith its publication ./, v .rti3/ 2/ Fenue of criminal and civil action for damages in cases of "ritten defamation a. "here the libelous article is printed and 1 st published != b. "here any of the offended parties actually resides at the time of the commission of the offense '/ %here one of the offended parties is a public officer a. if his office is in the $ity of Manila < =T$ of Manila != < cityAprovince "here the article is printed and 1 st published b. !ther"ise < =T$ of the cityAprovince "here he held office at the time of offense != < "here the article is 1st published )/ %here one of the offended parties is a private individual < =T$ of provinceAcity "here he actually resides at the time of the crime < "here article "as printed or 1st published $ote% !ffended party must file complaint for defamation imputing a crime "hich cannot be prosecuted de oficio .e.g. adultery, concubinage, rape, seduction, abduction, and acts of lasciviousness/ PROO' O' THE TRUTH (367) (dmissible "hen a. the act or omission imputed constitutes a crime regardless of "hether the offended party is a private individual or a public officer b. the offended party is a government employee, even if the act or omission imputed does not constitute a crime provided it is related to the discharge of his official duties =e1uisites for (c1uittal a. it appears that the matter charged as libelous is T=:> .for situations 1 and 2 above/ b. it "as published "ith good motives and for a *ustifiable end .for situation 1 only/ $otes% The proof of the truth of the accusation cannot be made to rest upon mere hearsay, rumors, or suspicion. It must rest upon positive direct evidence, upon "hich a definite finding may be made by the court ./, v ,otto/ LIBELOUS REMAR1S (362) 3ibelous remarks or comments on privileged matters .under (rt. '2)/ if made "ith malice in fact "ill not e9empt the author and editor. OThis article is a limitation to the defense of privileged communication. ELEMENTS O' INCRIMINATIN( INNOCENT PERSON: (363) 1. That the offender performs an act. 2. That by such act he directly incriminates or imputes to an innocent person the commission of a crime. '. That such act does not constitute per*ury. T"o Kinds a. making a statement "hich is c i. defamatory or ii. per*urious .if made under oath and is false/ b. planting evidence $ote article is limited to planting evidence and the like INTRI(UIN( A(AINST HONOR (36*) #o" committed <by any person "ho shall make any intrigue "hich has for its principal purpose to blemish the honor or reputation of another person Notes a. Intriguing against honor refers to any scheme or plot designed to blemish the reputation of another or of such trickery or secret plot.

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b. $ommitted by saying to others an unattributable thing, if said to the person himself it is slander. ELEMENTS O' REC1LESS IMPRU ENCE: (36+) 1. That the offender does or fails to do an act. 2. That the doing of or the failure to do that act is voluntary. '. That it be "ithout malice. ). That material damage results. 2. That there is ine9cusable lack of precaution on the part of the offender, taking into consideration a. his employment or occupation b. degree of intelligence, physical condition, and c. other circumstances regarding persons, time and place. ELEMENTS O' SIMPLE IMPRU ENCE: (36+) 1. That there is lack of precaution on the part of the offender. 2. That the damage impending to be caused in not immediate or the danger is not clearly manifest. $otes% 1/ (rt.4) on mitigating and aggravating circumstances not applicable. 2/ @ailure to lend on the spot assistance to victim of his negligence penalty ne9t higher in degree. '/ (bandoning usually punishable under (rt 252, if charged under (rt'42 is only 1ualifying and if not alleged cannot even be an aggravating circumstance. )/ $ontributory negligencePnot a defense, only mitigating L-st /le-# /?-n/e 0"/t#$ne& The contributory negligence of the in*ured party "ill no t defeat the action if it be sho"n that the accused might, by the e9ercise of reasonable care and prudence, have avoided the conse1uences of the negligence of the in*ured party Eme#,en/% #Ble& (n automobile driver, "ho, by the negligence of another, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or in*ury is not guilty of negligence if he makes a choice "hich a person of ordinary prudence placed in such a position might make even though he did not make the "isest choice.

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