My brother-in-law took some of my personal properties. Can I file a case against him for qualified theft?
First and foremost, it bears stressing that in order to conclude that there is a crime of theft, the taking of the personal property must be made with intent to gain, though without violence against or intimidation of persons nor force upon things, and such taking was done without the consent of the owner thereof. On the other hand, in order for the crime of theft to be considered as qualified, it must be clearly shown that any of the following circumstances are present: (a) the taking of the personal property without the consent of the owner was done with intent to gain but without violence against or intimidation of persons nor force upon things by the perpetrator who is the domestic servant of said owner; (b) the taking of a personal property without the consent of the owner was done by the perpetrator with grave abuse of confidence; or (c) the property stolen is a motor vehicle, mail matter or large cattle or if it consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption or any other calamity, vehicular accident or civil disturbance (Article 310, Revised Penal Code).
In the situation that you have presented before us, we agree at this point that a criminal case may be filed against your brother-in-law. The fact that he took some of your personal properties is not necessarily conclusive that he has committed the crime of qualified theft.
It is not even clear in your letter whether or not the taking of your personal properties was done by him without your consent and with intent to gain on his part.
Assuming that he took your properties without your consent and with intent to gain, you must then establish that he is either your domestic servant, that the taking was made with grave abuse of confidence, or that the personal properties involved are any of those above-mentioned. Thereafter, the complaint must be filed before the Office of the City or Provincial Prosecutor, or, in the absence thereof, before the court having jurisdiction of the place where the crime was committed.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appre–ciation of the same. Our opinion may vary when other facts are changed or elaborated.
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