EN
BANC
THE
UNITED STATES,
Plaintiff-Appellee,
G.
R.
No. 17021
February
23, 1921
-versus-
ISAAC
DOMINGUEZ,
Defendant-Appellant.
D
E C I S I
O N
VILLAMOR,
J:
The fact which gave
rise
to the present appeal is described in the Information as follows:chanroblesvirtuallawlibrary
"That on or about the
19th day of January, 1920, in the City of Manila, Philippine Islands,
the
said accused who was a salesman at the Philippine Education Co., Inc.
did
then and there receive the sum of seven pesos and fifty centavos
(P7.50)
from one Lamberto Garcia as payment for five copies of Sams' 'Practical
Business Letters' bought from the store of the said company, which
amount
should have been turned over and delivered by him [accused] to the
company's
cashier or his authorized representative therein; that instead of
delivering
the said amount to the said cashier or his representative therein,
which
he knew it was his obligation to do, the said accused did then and
there
willfully, unlawfully and criminally misappropriate and convert it to
his
own personal use to the damage and prejudice of the said Philippine
Education
Co., Inc. in the sum of seven pesos and fifty centavos [P7.50]
equivalent
to 370 pesetas."
At
the close of the trial,
the Court found the accused guilty of the crime of estafa of the sum of
P7.50 and sentenced him to be imprisoned for two months and one day of
arresto mayor, with the accesories provided by law, and costs.
Appeal having been
taken to this Supreme Court, the counsel for the accused assigns, as
error
committed by the Court, its finding that the accused is guilty of the
crime
charged and its action in imposing upon him the penalty corresponding
to
a principal in the crime of estafa.
It is proved that the
accused, as salesman of the bookstore "Philippine Education Co., Inc."
sold on the morning of January 19,1920, five copies of Sams' "Practical
Business Letters," of the value of seven pesos and fifty centavos
[P7.50],
which the accused should have immediately delivered to the cashier but
which he did not deliver, until after it was discovered that he had
sold
the books and received their value without delivering it to the cashier
as was his duty.
The accused alleges
that he did not deliver the money immediately after the sale, because
the
cash boys were very busy as well as the cashier, while he had to go to
the toilet for some necessity, and upon coming out, the cashier caught
him by the arm and asked him for the money, and then he delivered the
sum
of P7.50 to him; and that it was not his intention to make use of said
money. Such claim, nevertheless, does not exempt him from the criminal
responsibility which he had incurred, for the evidence before Us shows
clearly that he attempted to defraud the "Philippine Education Co.,
Inc."
Upon being asked for the money, he first said that a woman, whom he did
not know, bought books, without having paid, for the reason that she
was,
according to herself, in a hurry; and, later, he went out of the store
to talk to a friend who was employed in the Pacific Mail Steamship Co.
to tell him that if anyone should ask him if he [the employee of the
Pacific
Mail Steamship Co.] bought books that morning in the store of the
"Philippine
Education Company" he should answer affirmatively. Furthermore, he had
also declared to the manager of the bookstore that he used part of the
money in purchasing postage stamps.
There can be no doubt
as to the injury which the accused would have caused to the interests
of
the company in retaining for himself the proceeds of the sale in
question.
But the question of
law to be decided is whether the fact that the accused retained in his
possession the proceeds of the sale, delivering them to the cashier
only
after the deceit had been discovered, constitutes a consummated offense
or merely a frustrated offense of estafa.
Should the fact that
the accused attempted to get certain bundles, of merchandise at the
station,
by means of the presentation of the tag sent to the consignee in a
letter
which must have been taken from the mail, it not having been proven by
whom or how it came to the accused, who did not attain their object,
because
the bundles had been withdrawn two or three days before by the
consignee,
be considered as an attempted or frustrated offense? The supreme court
of Spain in its decision of January 3, 1876, in deciding the appeal
taken
by the accused, who alleged that the act constituted only an attempt
and
not a frustrated estafa, declared that the appeal was not well taken,
on
the ground that the offense is frustrated when the accused performs all
the acts of execution which would have produced the crime, and,
nevertheless,
do not produce it by reason of causes independent of the will of the
actor,
and that in said case the appellant, together with his coaccused
attempted
to take possession of the two bundles which they believed were at the
station,
by going there and presenting the tag, and they did not succeed because
these bundles had already been taken, which constitutes the frustrated
crime.
In his commentaries
on the Penal Code, Viada asks the following question: "Is immediate
return
by the accused of the thing he intended to convert, as soon as the
injured
party found out the fraud committed, sufficient to divest the act of
its
consummated character and to place it within the limits of a mere
frustrated
offense?" "The religious society of Santa Clara deposited, in the year
1868, with D. Manuel Nuñez an oil painting on copper, but when
they
demanded it a few years afterwards, the latter delivered to them the
same
frame but with merely a copy of the original painting, which, upon his
order, a painter had made for the sum of 40 pesetas. The substitution
having
been afterwards noted, the society protested and Nuñez returned
the original, valued at 125 pesetas, and in turn obtained the copy
referred
to. But, in the meantime a criminal action having been instituted upon
this fact and prosecuted to trial, the Madrid court, holding that
Nuñez
had defrauded and injured the society in the amount of the difference
in
the value of the paintings, sentenced him, as principal in the
consummated
crime of estafa, defined in Number 5 of Article 548 of the Code, to the
penalty of two months and one day of arresto mayor, together with the
accessories,
and costs. An appeal having been taken from said judgment, on the
ground
that it violated among others, Article 3 of the Code, the Supreme
Court,
declaring that the appeal was well taken, held that the estafa
committed
was mere frustrated estafa. 'Considering that while the acts of D.
Manuel
Nuñez appear to have been actuated by the desire to convert the
painting to his own use and the consequent injury of its owner, and
that
to that end he performed all the acts which should produce the crime as
a consequence, nevertheless, the injury and the appropriation were not
realized, and therefore the crime was not consummated because of a
cause
independent of his will, which was the discovery of the substitution of
the plate, after which the owner obtained what belonged to him without
the objection of the depositary and without any delay juridically
appreciable
— therefore, the trial court in holding as consummated an offense that
was frustrated, violated, in failing to apply it, article 3 of the
Code."
[1 Viada, 65].
The same author puts
and solves the following question: "Where a person appointed
Commissioner
to make collection of debts due to the public treasury for real estate
taxes owing by a mining company goes to a store and exacts of the owner
thereof a certain sum in order that he might not file a complaint by
virtue
of which the owner might have to pay a big fine because the
establishment
was not registered in the corresponding class, and the owner pays him
part
of the sum demanded, but he is in the act caught by agents of the
authority
who were detailed for the purpose, is he guilty of the consummated or
simply
frustrated crime of estafa? The criminal branch of the court of Seville
found him guilty of the former and sentenced him to the penalty of two
months and one day of arresto mayor. But, appeal having been
taken
from the judgment on the ground that the fact constituted only an
attempt
to commit estafa, the Supreme Court, while not of the same opinion,
however,
held that the crime committed was merely frustrated: 'Considering that
while the acts executed by the appellant should be qualified, not
merely
as an attempt, as claimed by the appellant, inasmuch as he did not
limit
himself to commencing the acts of execution of the crime, but as a
frustrated
crime, because the accused performed all the acts of execution which
should
produce the crime as a result, such as the obtaining of the money
exacted,
in this manner apparently realizing his object, but which acts
nevertheless
did not produce the crime by reason of a cause independent of his will,
which cause in this case was the appearance of agents of the authority
at the place, as a consequence of the complaint filed by Da. Candelaria
Polanco to the treasury deputy, a fact which prevented the consummation
of the crime prosecuted, which would have consisted in completely
divesting
the owner of his money, a result prevented by the vigilance of the
authorities:
Considering that in not so holding the trial court erred on a point of
law, as claimed, and violated the articles of the Penal Code to which
the
appeal refers, etc., etc.' " [Viada, Suppl. 1887-1889, p. 8].
Applying the doctrine,
established by the Supreme Court of Spain in the decisions cited, to
the
case at bar, we are of the opinion, and so hold, that the appellant is
guilty of the frustrated offense of estafa of 37½ pesetas,
inasmuch
as he performed all the acts of execution which should produce the
crime
as a consequence, but which, by reason of causes independent of his
will,
did not produce it, no appreciable damage having been caused to the
offended
party, such damage being one of the essential elements of the crime,
due
to the timely discovery of the acts prosecuted.
From what has been
said, it results that the judgment appealed from should, as it is
hereby,
modified, and the accused is sentenced to pay a fine of 325 pesetas,
with
subsidiary imprisonment in case of insolvency, and to pay the costs of
the trial. So ordered.
Mapa, C.J.,
Araullo, Street and Malcolm, JJ., concur. |