Legal Advice 3

Another client of mine asked an advice with regards to her money allegedly stolen by her brother.  She asked me if she could file a criminal case of THEFT against him.

Definition of Theft:

As stated in Article 308 of the Revised Penal Code, theft is committed by any person who, with intent to gain but without violence, against, or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent.

Discussion:

In the situation of my client, her money is considered as her personal property.  Considering that she did not allege of any violence, against, or intimidation of persons nor force upon things, the crime may be committed is just a simple THEFT.  If there was a presence of violence, against, or intimidation of persons or force upon things, the crime may qualify as ROBBERY.

Based on the general definition of a crime of theft, my client could file it against her brother.

However, the same penal code provides who are the persons exempt from criminal liability in crimes against property.  As provided in Article 332, "No criminal, but only civil liability shall result from the commission of the crime of THEFT, SWINDLING, or MALICIOUS MISCHIEF committed or caused mutually by the following:

1.  Spouses, ascendants and descendants, or relatives by affinity in the same line;

2.  The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and

3.  Brothers and sisters and brothers-in-law and sisters-in-law, if living together."

According to the provision mentioned above, it is clear that my client cannot file a criminal case of THEFT against her brother.  Her brother is exempt from criminal liability.  However, she may still recover her money from him by filing a necessary civil action in court.

Please note that this exemption from criminal liability is also applicable to spouses, parents, grandparents, children, brothers-in-law or sisters-in-law, if they living together with the complainants, as well as the widowed spouse.

The crimes subject to such exemption are limited only to THEFT, SWINDLING OR ESTAFA, and MALICIOUS MISCHIEF.

If what the brother of my client has committed was ROBBERY, my client could file this criminal case against him.  He is not exempt in the crime of robbery.