EN BANC
THE UNITED STATES,
Complainant-Appellee,
G.
R.
No. 1319
October
9, 1903
-versus-
TOMAS ZAMORA,
Defendant-Appellant.
D E C I S I
O N
COOPER, J :
The Information in this
case charges the defendant, Tomas Zamora, with the crime of estafa,
committed
in the following manner:
On the 9th day of
November
1901, in the City of Manila, there came into the possession, care, and
custody of the defendant, as a deposit on commission, for
administration,
and to sell for the account of Doña Gregoria Covarrubias,
certain
personal property consisting of jewelry of the value of $1,772.50, the
defendant being under the obligation to return or account for the same;
that the defendant, between the said 9th day of November, 1901, and the
14th day of October, 1902, wrongfully, illegally, and without the
consent
of the owner, converted said property to his own use, to the prejudice
of the said Gregoria Covarrubias.
The defendant pleaded
not guilty, and was, on the 5th day of December 1902, tried in the
Court
of First Instance of the City of Manila, found guilty as charged, and
sentenced
to imprisonment for two years of presidio correccional. An
appeal
was taken to this Court.
The evidence in the
case shows that on the 10th day of July 1901, the defendant received
from
the complaining witness the jewelry mentioned in the complaint, for
sale
on commission, and though repeatedly requested by the owner to return
the
same, failed so to do. These facts are proven by the complaining
witness
and Juliana Espinosa.
It is contended for
the defense that no time was fixed within which the defendant was to
make
sale of or return the property. It was proven that it is the custom,
when
jewelry is taken out for sale, that if taken in the morning it is to be
returned in the evening; or at least within two or three days.
Independent
of any such custom, and in the absence of any time fixed for its
return,
it was the duty of the party so receiving it to return it upon the
demand
of the owner.
The complaining witness
testified that upon several occasions she demanded of the defendant the
return of the jewelry; that the defendant failed to comply, on each
occasion
asking for two or three days longer, and up to the date of the trial,
which
was over one year from the date of the delivery of the property, he had
failed to make a return of the jewelry or to give any account thereof.
We think the evidence
in this respect entirely sufficient to show the conversion of the
property
by the defendant to his own use.
It is also contended
that a certain receipt bearing date November 11, 1901, in which the
defendant
acknowledged to have received from the complaining witness $1,772.50,
"value
received in various jewels," was a novation of the contract, and had
the
effect of converting the transaction into compraventa.
We do not think the
receipt can be construed as having any such effect. It is signed by the
defendant and specifies the particular pieces of jewelry delivered. It
does not indicate in any way a sale of the property or novation of the
original contract. While it was taken four months after the delivery of
the property, this is explained by the complaining witness, who states
that, after having made repeated demands upon the defendant for the
return
of the property, or its price, she, distrusting defendant, took the
receipt
as evidence of the original delivery of the property, having at the
time
of the delivery given over the same to defendant without taking a
receipt.
On the 9th day of
September,
1903, after the submission of this case, the defendant filed in this
court,
under the provisions of Section 42 of General Orders No. 58, a motion
for
a new trial, supported by the affidavits of Daniel Nonato and Gregoria
Covarrubias. There was attached to the motion a receipt dated on the
5th
day of November, 1901, signed by Daniel Nonato, in which is set forth
the
list of the jewelry, and in which it is recited that the defendant,
Tomas
Zamora, on that day delivered to Daniel Nonato the property for sale on
commission. This receipt comprises the same articles shown on the trial
to have been entrusted by the complaining witness, Gregoria
Covarrubias,
to the defendant for sale.
It is alleged in the
motion for a new trial that it was the understanding of the defendant
that
the complaining witness, Gregoria Covarrubias, had conferred upon him
the
power to sell on time the jewelry which she had delivered to him, and
that
in turn he delivered to Daniel Nonato the same articles of jewelry for
sale on the same terms, taking from the latter the receipt above
mentioned;
that upon the filing of the information upon which the prosecution is
based
defendant sought many times for this receipt, all of his searches
proving
unsuccessful; that he did not make this defense at the time of the
trial
because he had nothing to prove the existence of such contract with
Nonato,
nor did he at the time know of the whereabouts of Nonato; that after
the
submission of the case to this court, Nonato had paid over the entire
amount
of the price for which the jewelry was sold to the defendant, and the
latter
paid it over to Gregoria Covarrubias, as shown in her attached
affidavit;
that the receipt from Nonato to the defendant came into the possession
of Nonato in the following manner: That on the 6th day of November,
1901,
Nonato paid defendant on account a certain sum, and defendant took out
the document for the purpose of making and signing the corresponding
entry
of the receipt of this sum, afterwards delivering the document to
Nonato
as evidence of the payment, instead of issuing a receipt on account;
that
in the course of time he forgot completely what had occurred, and on
searching
for the document and not finding it he supposed it was lost.
The affidavit of Daniel
Nonato states that some time in November of the year 1901 the
defendant,
Zamora, intrusted to him certain articles of jewelry for sale on
commission,
a list of which is attached to the affidavit; that he sold said jewelry
in the provinces, but on account of the scarcity of money there he was
unable to make the collection of the price until a few days ago, and
that
it was only on yesterday, September 8, 1903, that he paid to defendant
the amount of $1,772, which he owed the defendant for said property.
The affidavit of
Gregoria
Covarrubias states that she, on the 9th day of September, 1903,
received
from the defendant, Zamora, the sum of $1,772.50, which Zamora was
indebted
to her for the jewelry, the same being in full satisfaction of the
account.
A motion for a new
trial under the provisions of General Orders No. 58, should show both
the
materiality of the testimony and the exercise of due diligence on the
part
of the defendant to obtain the newly discovered testimony. We think the
application is defective in both these particulars. The trial must have
resulted in the conviction of the defendant, even if the proof alleged
to be newly discovered and mentioned in the motion had been introduced
at the trial. The conversion of the property by the defendant was shown
to have occurred before the 5th day of November, 1901, the date on
which
the defendant claims that he turned over to Nonato the property
received
from Gregoria Covarrubias. It was shown on the trial that where there
is
a delivery of such property under like circumstances, according to the
customs of the place, it should be accounted for within two or three
days'
time after its delivery. As before stated, independent of any such
custom,
and in the absence of any time fixed for its return, it was the duty of
the defendant to return the property upon demand of the owner.
The complaining
,witness
testified that several times prior to taking the receipt of November 9,
1901, she had made demand upon the defendant for the return of the
property,
and that the defendant had under one excuse and another failed to
comply
with the request.
The testimony of
Juliana
Espinosa was that she had gone to the house of the defendant on many
occasions
between the date of the delivery of the jewelry to the defendant on the
10th day of July, 1901, and the date of the taking of the receipt by
witness
from defendant on November 9, 1901, and that the defendant always met
her
with many excuses, and on one occasion said that he would go in person
and deliver the jewelry to Gregoria Covarrubias, or give her the money;
that on account of these various pretexts and promises unfulfilled,
Señora
Covarrubias distrusted the defendant, and, finally, on the 9th day of
November
1901, took the receipt from him which contained a list of the jewelry.
There is no proof in
the case to sustain the contention of defendant to the effect that the
jewelry was consigned to him to sell on time. In view of the fact that
the demand made upon defendant by the complaining witness for the
return
of the jewelry was sufficient to put him in default and to require him
to return the property to plaintiff, on his failure to do so he became
guilty of the conversion. Subsequent accounting to the complaining
witness
and payment to her of the money could not have the effect of absolving
him from the crime which had already been committed.
The application is
insufficient in not showing the use of diligence in procuring the
testimony.
It is stated that the defendant had made many searches for the receipt
of November 5, 1901, taken from Nonato upon the delivery of the jewelry
by him to Nonato. If after due search made for the document it could
not
be found, parol evidence of its contents would have been admissible. It
is not stated in the application for a new trial that this proof could
not have been made.
It seems from the
affidavit
that Nonato was a resident of this city. The defendant should have
applied
for process to issue to procure the attendance of this witness, and, if
upon return of the process it was shown that Nonato was absent and
could
not be found, he should have made application for the continuance of
the
case, based upon such facts. The court would doubtless have extended to
him a postponement until such time as he could have procured the
attendance
of the witness.
It is a strange
circumstance,
and seems entirely improbable, that the defendant should have delivered
over to Nonato the receipt, the only evidence he had against Nonato of
the delivery to the latter of the property in question, simply because
he had indorsed thereon a receipt for the payment of 100 pesos, instead
of executing to Nonato a separate receipt for this sum on account.
For the reasons stated
the application for a new trial should be overruled, which is
accordingly
done.
The Court of First
Instance properly found the defendant guilty of estafa under Clause 5
of
Article 535 of the Penal Code, and has properly assessed the penalty
for
the offense.
The Judgment of the
Court of First Instance is affirmed, and the costs of this appeal are
adjudged
against the defendant.
Arellano, C.J.,
Torres, Willard, Mapa and McDonough, JJ., concur.
Johnson, J.,
did not sit in this case.
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