G.R. No. 1874. January 18, 1905

On February 26, 1904, a complaint was filed by Rufina del Rosario against Angel Ongtengco, charging him with estafa,
in that on or about June 26, 1902, said Ongtengco received in this city
from the complainant some jewelry, the value of which amounted to 1,510
pesos, Mexican; that this jewelry was given on the condition that the
defendant should sell it on commission and return the same or the value
thereof on July 31 of the same year, but that the defendant willfully
and feloniously misapplied, embezzled, and appropriated to himself the
said jewelry and the value thereof without the consent and to the
prejudice of the complainant.

It has been proven in this case that on the date aforesaid the
defendant received from Rufina del Rosario, at her house, the jewelry
mentioned in the complaint, with the agreement that he would sell it in
Camarines and should pay her the price thereof or else return the
jewelry on July 31, 1902; the nephew of the said Rufina made a list of
the said jewelry; that Rufina afterwards heard that the defendant had
returned to this city from Camarines, whereupon Rufina sought him and
demanded from him the price of the jewelry or the return of the same;
that Ongtengco told her then that he had left it with a son of his in
Nueva Caceres, and promised to send one of his other children to bring
the same, though he did not comply with his promise; that in spite of
all the efforts and demands she had made to recover the jewelry or the
price thereof she did not succeed; that in April of the next year she
got from the defendant the sum of 300 pesos, Mexican; that the
defendant then promised to pay the value of the jewelry to Perfecto
Gabriel, but he did not do it; that later the defendant delivered to
the owner of the jewelry some other jewelry consisting of two diamond
necklaces valued at 700 pesos, Mexican, as a guaranty for the value of
the former. This jewelry was returned to the defendant in exchange for
the sale price of a parcel of land situated in Antipolo which Margarita
Valenzuela had bought for the sum of 1,500 pesos, and which land was
afterwards offered by the said Margarita to the complainant.

The witness Perfecto Gabriel, a nephew of the complainant, said that
he learned these facts only when, in spite of all the demands his aunt
had made on the defendant to pay the price of the jewelry or to return
the same, she did not succeed; that it was then that he intervened in
the matter and tried to make the defendant comply with his promise, but
that it was of no avail; that the jewelry given by the defendant as
guaranty was returned to him, together with the instrument which the
defendant had made; that this was done because the instrument
transferring the property in Antipolo had already been signed in favor
of Margarita Valenzuela, who had offered to pay the price of the
jewelry to the complainant.

It can not be doubted that the crime of estafa, provided
for and punished by paragraph, article 534, and paragraph 5, article
535, of the Penal Code, has been committed, since the defendant asked
for and received the jewelry, to sell it on commission, and with fhe
obligation to return either the price or the jewelry itself; instead of
doing this he appropriated to himself the said jewelry by false
pretenses and in bad faith, thus deceiving the owner of the jewelry, to
her prejudice.

The guilt of the accused is evident, since up to the time the
complaint was filed he had neither returned the jewelry nor given any
account of the same or of the price thereof. The fact that he pleaded
not guilty; that he gave the owner of the jewelry part of what he
embezzled, 300 pesos; that he delivered some jewelry (which was
afterwards returned to him) as a guaranty for his obligation; and,
finally, the fact that he made a third person offer to reimburse the
amount embezzled do not exempt him from liability, since neither the
jewelry was returned nor the price thereof was paid to the owner of the
same, and whatever acts the defendant did, they all prove that he
embezzled the jewelry or the value thereof.

The two essential elements for the crime of estafa are
deceit or false pretenses and the prejudice resulting from it; these
two elements concur in this case. Ongtengco took the jewelry under
pretext of selling it, contracting the obligation to either return it
or pay the value of the same to its owner; he did not do so; whereby he
occasioned Rufina del Rosario a great prejudice, which, even if
repaired, would not have prevented the existence of the crime of estafa.

Neither the subsequent reparation of the damage nor the
reimbursement of the money embezzled nor the compromise which might
subsequently be entered into between the parties can condone the crime
or exempt the defendant from the penalty which he has incurred. Such is
the doctrine established by the decisions of June 12, 1882; February
15, 1884; February 9, 1885; June 23 and December 15,1888.

No extenuating or aggravating circumstances appear in connection
with the commission of the crime nor that established in article 11 of
the Penal Code, therefore the proper penalty should be imposed in its
medium degree, and not in its maximum degree, as has been done by the
court below.

Therefore, by virtue of the foregoing considerations, we are of the
opinion that the judgment of the court below rendered on March 10,
1904, should be affirmed, it being understood that the defendant, Angel
Ongtengco, is sentenced to six months of arresto mayor with
the accessory penalties provided for in article 61 of the Penal Code;
to return the jewelry embezzled or to pay the value thereof, less 300
pesos, and in case of insolvency to suffer the corresponding subsidiary
imprisonment—provided, however, that it shall not exceed one-third of
the term of the principal penalty—and to pay the costs in both
instances, the case to be returned to the court below with a certified
copy of this decision and of the judgment entered in accordance
herewith. So ordered.

Arellano C. J., Mapa, Johnson, and Carson, JJ., concur.