Unnecessary element

This is a case of estafa or swindling of money that belongs to another person. One of the issues raised in this case is whether previous demand of the amount swindled and refusal or inability to return the same is an essential element of the crime. Can there be estafa even without such previous demand? When is demand necessary? These are the questions answered in this case, which happened way back in 1935 where the Peso was still costly.

This case involves Ricardo residing in a town in Southern Luzon. Among his neighbors is Anita, one of the residents in the town who is easily convinced in believing anything including magic and fortune telling. One time, Ricardo and three of his friends, Diego, Enrique and Nardo approached Anita. Pretending to be a magician and a fortune teller endowed with the power to discover hidden treasures, Ricardo convinced Anita that there was a jar containing articles of great value under her house. However he told Anita that to obtain said jar it was necessary for the latter to give him old gold coins in order to extract said hidden treasure. Believing said statement, Anita gave him the sum of P150. But after receiving the money, Ricardo never came back to Anita’s house nor returned the money.

So Ricardo was charged in the Justice of Peace Court of the Municipality (now Municipal Trial Court) with the crime of estafa for having fraudulently obtained P150 in conspiracy with Diego, Enrique and Nardo. After pleading not guilty, the case was set for trial but was postponed ten times upon motion of Ricardo or his lawyer. Thereafter, despite Ricardo’s request for another postponement, the court already proceeded with the trial and found Ricardo guilty of estafa for defrauding Anita of P150 by means of pretending to possess power or influence or qualifications under Article 315 4th par. (2 a) Revised Penal Code. Since the amount does not exceed P200 Ricardo was sentenced to imprisonment of four months of arresto mayor, restitution of the sum of P150 to Anita with subsidiary imprisonment in case of insolvency, and costs. This judgment was affirmed by the Court of First Instance (now Regional Trial Court).

Ricardo still appealed the decision, contending among others that no previous demand for the return of the money was made upon him and that he refused or was unable to return it which were essential elements of the crime of estafa. Was Ricardo correct?

No. There are several ways of committing Estafa or swindling. In this case, Ricardo was convicted of Estafa which involves fraud committed through false representations or pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, under the fourth paragraph of Article 315, (2 a). The elements of previous demand for the return of the amount swindled and refusal or inability of the accused to do so, are necessary elements of the Estafa under the provisions of Article 315 fourth paragraph subsection one (b) referring to fraudulent misappropriation or conversion of the money 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. So Ricardo is really guilty of the crime of estafa as charged (People vs. Swame Scott, G.R. No. -43178 December 4, 1935).

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