ManilaFIRST
DIVISION
THE UNITED STATES,
Complainant-Appellee,
G.
R.
No. 202
September
21, 1901
-versus-
CARLOS
RASTROLLO,
Defendant-Appellant.
D E C I S I
O N
TORRES, J:
In civil proceedings instituted
to obtain a preventive attachment to secure a debt contracted by Carlos
Rastrollo in favor of D. Emeterio Ruiz, 1,121 feet of hose, among other
property belonging to said Rastrollo, was attached at the instance of
Attorney
Florencio Gonzales on behalf of Don Gerardo Urbina. The attached
property
remained in the possession of the debtor, Rastrollo, who, with the
consent
of the attorney for the plaintiff, sold the same to the Manila Fire
Department.
Rastrollo failed to deliver the proceeds of the sale, which took place
late in March of this year, to the attorney for the plaintiff, and only
deposited the same in the court on the 4th day of June of this year,
the
day following the filing of the complaint charging him with the crime
of
embezzlement [estafa].
If the acts of which
the accused is charged constitute any crime whatever it would be that
of
malversation of property attached by judicial order - the crime defined
and punished in Article 395 in connection with articles 390 and 392 of
the Penal Code. The act could not be regarded as constituting estafa
under
paragraph 5 of Article 535 of the Code, because the property alleged to
have been misapplied was not the subject of a mere private bailment but
of a judicial deposit. This gives the depositary a character equivalent
to that of a public official, and a breach of his obligation is similar
to the violation of the obligations imposed by public office.
However, as the
accused,
Rastrollo, in selling the said hose, acted with the knowledge and
consent
of the attorney for his creditor, since it is proved that the said
attorney
agreed with the depositary that the proceeds of the sale should be
delivered
to him, and inasmuch as there is no proof, on the other hand, that the
depositary, Rastrollo, appropriated or applied the proceeds of the sale
of the hose to his own use or that of others, but has deposited the
same
in court, although somewhat tardily, it is evident that the defendant
has
contracted no criminal liability. His act does not include all of the
elements
which constitute the crime of malversation, or of any other crime, and
the irregularity noted in his conduct is chargeable to the attorney for
the creditor who might have been prejudiced thereby.
In view of the
foregoing
considerations, which are completely in accord with the penal law and
the
conclusions and merits of the case, the accused, Don Carlos Rastrollo,
should be acquitted and the judgment appealed from reversed with costs
in both instances de oficio. It is so ordered.
Arellano, C.J.,
Cooper, Willard, Mapa, and Ladd, JJ., concur.
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