THE UNITED STATES, plaintiff-appellee, vs. JOSE M.

IGPUARA,
defendant-appellant.

1913-03-27 | G.R. No. 7593

DECISION

ARELLANO, C. J.:

The defendant herein is charged with the crime of estafa, for having swindled Juana Montilla and
Eugenio Veraguth out of P2,498 Philippine currency, which he had taken on deposit from the former to
be at the latter's disposal. The document setting forth the obligation reads:

"We hold at the disposal of Eugenio Veraguth the sum of two thousand four hundred and ninety-eight
pesos P2,498), the balance from Juana Montilla's sugar. ---- Iloilo, June 26, 1911. --- Jose Igpuara, for
Ramirez & Co."

The Court of First Instance of Iloilo sentenced the defendant to two years of presidio correccional, to pay
Juana Montilla P2,498 Philippine currency, and in case of insolvency to subsidiary imprisonment at
P2.50 per day, not to exceed one-third of the principal penalty, and the costs.

The defendant appealed, alleging as errors: (1) Holding that the document executed by him was a
certificate of deposit; (2) holding the existence of a deposit, without precedent transfer or delivery of the
P2,498; and (3) classifying the facts in the case as the crime of estafa.

"A deposit is constituted from the time a person receives a thing belonging to another with the obligation
of keeping and returning it." (Art. 1758, Civil Code.)

That the defendant received P2,498 is a fact proven. The defendant drew up a document declaring that
they remained in his possession, which he could not have said had he not received them. They
remained in his possession, surely in no other sense than to take care of them, for they remained has no
other purpose. They remained in the defendant's possession at the disposal of Veraguth; but on August
23 of the same year Veraguth demanded of him through a notarial instrument restitution of them, and to
date he has not restored them.

The appellant says: "Juana Montilla's agent voluntarily accepted the sum of P2,498 in an instrument
payable on demand, and as no attempt was made to cash it until August 23, 1911, he could indorse and
negotiate it like any other commercial instrument. There is no doubt that if Veraguth accepted the receipt
for P2,498 it was because at that time he agreed with the defendant to consider the operation of sale on
commission closed, leaving the collection of said sum until later, which sum remained as a loan payable
upon presentation of the receipt." (Brief, 3 and 4.)

Then, after averring the true facts: (1) That a sales commission was precedent; (2) that this commission
was settled with a balance of P2,498 in favor of the principal, Juana Montilla; and (3) that this balance
remained in the possession of the defendant, who drew up an instrument payable on demand, he has
drawn two conclusions, both erroneous: One, that the instrument drawn up in the form of a deposit
certificate could be indorsed or negotiated like any other commercial instrument; and the other, that the
sum of P2,498 remained in defendant's possession as a loan.

It is erroneous to assert that the certificate of deposit in question is negotiable like any other commercial
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instrument; First, because every commercial instruments payable to order are negotiable. Hence, this
instrument not being to order but to bearer, it is not negotiable.

It is also erroneous to assert that the sum of money set forth in said certificate is, according to it, in the
defendant's possession as a loan. In a loan the lender transmits to the borrower the use of the thing lent,
while in a deposit the use of the thing is not transmitted, but merely possession for its custody or
safe-keeping.

In order that the depositary may use or dispose of the things deposited, the depositor's consent is
required, and then:

"The rights and obligations of the depositary and of the depositor shall cease, and the rules and
provisions applicable to commercial loans, commission, or contract which took the place of the deposit
shall be observed." (Art. 309, Code of Commerce.)

The defendant has shown no authorization whatsoever or the consent of the depositary for using or
disposing of the P2,498, which the certificate acknowledges, or any contract entered into with the
depositor to convert the deposit into a loan, commission, or other contract.

That demand was not made for restitution of the sum deposited, which could have been claimed on the
same or the next day after the certificate was signed, does not operate against the depositor, or signify
anything except the intention not to press it. Failure to claim at once or delay for some time in demanding
restitution of the thing deposited, which was immediately due, does not imply such permission to use the
thing deposited as would convert the deposit into a loan.

Article 408 of the Code of Commerce of 1829, previous to the one now in force, provided:

"The depositary of an amount of money cannot use the amount, and if he makes use of it, he shall be
responsible for all damages that may accrue and shall respond to the depositor for the legal interest on
the amount."

Whereupon the commentators say:

"In this case the deposit becomes in fact a loan, as a just punishment imposed upon him who abuses the
sacred nature of a deposit and as a means of preventing the desire of gain from leading him into
speculations that may be disastrous to the depositor, who is much better secured while the deposit
exists that when he only has a personal action for recovery.

"Accordingly to article 548, No. 5, of the Penal Code, those who to the prejudice of another appropriate
or abstract for their own use money, goods, or other personal property which they may have received as
a deposit, on commission, or for administration, or for any other purpose which produces the obligation
of delivering it or returning it, and deny having received it, shall suffer the penalty of the preceding
article," which punished such act as the crime of estafa. The corresponding article of the Penal Code of
the Philippine is 535, No. 5.

In a decision of an appeal, September 28, 1895, the principle was laid down that: "Since he commits the
crime of estafa under article 548 of the Penal Code of Spain who to another's detriment appropriates to
himself or abstracts money or goods received on commission for delivery, the court rightly applied this
article to the appellant, who, to the manifest detriment of the owner or owners of the securities, since he
has not restored them, willfully and wrongfully disposed of them by appropriating them to himself or at
least diverting them from the purpose to which he was charged to devote them."
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It is unquestionable that in no sense did the P2,498 which he willfully and wrongfully disposed of to the
detriment of his principal, Juana Montilla, and of the depositor, Eugenio Veraguth, belong to the
defendant.

Likewise erroneous is the construction apparently attempted to be given to two decisions of this
Supreme Court (U. S. vs. Dominguez, 2 Phil. Rep., 580, and U. S. vs. Morales and Morco, 15 Phil. Rep.,
236) as implying that what constitutes estafa is not the disposal of money deposited, but denial of having
received same. In the first of said cases there was no evidence that the defendant had appropriated the
grain deposited in his possession.

"On the contrary, it is entirely probable that, after the departure of the defendant from Libmanan on
September 20, 1898, two days after the uprising of the civil guard in Nueva Caceres, the rice was seized
by the revolutionists and appropriated to their own uses."

In this connection it was held that failure to return the thing deposited was not sufficient, but that it was
necessary to prove that the depositary had appropriated it to himself or diverted the deposit to his own or
another's benefit. He was accused of refusing to restore, and it was held that the code does not penalize
refusal to restore but denial of having received. So much for the crime of omission; now with reference to
the crime of commission, it was not held in that decision that appropriation or diversion of the thing
deposited would not constitute the crime of estafa.

In the second of said decisions, the accused "kept none of the proceeds of the sales. Those, such as
they were, he turned over the owner;" and there being no proof of the appropriation, the agent could not
be found guilty of the crime of estafa.

Being in accord with law and the merits of the case, the judgment appealed from is affirmed, with costs.

Torres, Johnson and Trent, JJ., concur.

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