G.R. No. 2273. December 04, 1905

On August 22, 1904, Attorney Francis J. Berry and Paul G. Carriere
were charged by the provincial fiscal in the Court of First Instance of
Tayabas with the crime of estafa. It was alleged in the
complaint that the defendants, on or about the 11th day of June, 1904,
fraudulently secured the signature of one Cornelio Finohermoso to a
certain deed whereby the latter conveyed to Berry his title to a tract
of land in Calulihan, municipality of Pitogo, containing 1,000 coconut
trees, said land being bounded on the north by the land of Ramon
Atienza; on the south by that of Joaquin Martinez; on the east by a
forest belonging to the municipality of Pitogo, and on the west by the
sea. The price stipulated was P1,000. Finohermoso was induced to
believe that the instrument was not a conveyance of his property but a
mere mortgage thereon. The foregoing acts were committed by the accused
to the prejudice of Finohermoso and in violation of the statute in such
cases made and provided.

Upon the filing of the complaint counsel for defendants moved for a
separate trial as to Carriere, which was granted. The present case,
therefore, concerns Francis J. Berry only.

The court, after hearing the evidence, rendered judgment convicting the defendant, Berry, of the crime of frustrated estafa and sentenced him to thirty days’ imprisonment and costs. From this judgment the defendant appealed.

The record sufficiently shows that this was not a case of frustrated but of consummated estafa.
It was proved at the trial that Finohermoso, while in confinement and
anxious to obtain his liberty, was induced through fraud and deceit to
sign what was represented to him to be a mortgage deed of his land, for
the purpose of securing the payment of a fee of P100 to the lawyer who
was to arrange the matter of his bail. It developed, however, that the
instrument was an absolute conveyance of the land, in consideration of
P1,000 to the attorney who, through the interpreter, Carriere, had
agreed to defend him.

Under paragraph 7, article 535 of the Penal Code, he who through
deceit shall defraud another by inducing him to sign a document, is
guilty of estafa.

According to the settled jurisprudence of our courts, the essential elements of the crime of estafa
are: (1) The deceit employed to defraud another, and (2) the injury or
damage caused thereby. Both elements must be present in order to
convict of any of the various species of fraud denned and punished by
the Penal Code.

It is evident that deceit was employed by the defendant. The injury
caused to Finohermoso is likewise manifest. By the fraudulent execution
of the document marked “Exhibit A,” Finohermoso involuntarily parted
with his title to a piece of land valued at more than P3,000 in payment
of services which were worth only P100. Cornelio Finohermoso never
would have signed the document marked “Exhibit A” had he been aware of
the fact that he thereby conveyed for the sum of P1,000 his title to a
piece of land which, according to his own statement, was worth more
than P3,000. He stated to the interpreter, Carriere, that as soon as he
should obtain his liberty he would try to get P100 to redeem the land.
By virtue of the deed thus fraudulently executed the title to the
property was unduly conveyed to the defendant, who did not even pay the
arbitrary price fixed therein nor render, perhaps, any services to
Finohermoso, to the prejudice of the latter.

We find that Francis J. Berry was the sole author of the crime
charged in the complaint by his direct participation in the commission
thereof, his plea and evidence introduced by him to the contrary
notwithstanding. The circumstantial evidence in the case, based upon
established facts as it is, shows that the defendant, Berry, is guilty
of the offense charged.

The defendant, Berry, a resident of the city of Manila, sent Paul G.
Carriere, who was employed in his law office as interpreter and
translator, to the Province of Tayabas to interview the prisoners
confined in the public jail and enter into contracts with those who
desired to retain an attorney to defend and represent them at the trial
of their respective cases. Carriere, Berry’s forerunner, called at the
public jail early in the month of June and distributed among the
prisoners cards similar to “Exhibit D,” wherein it was stated that he,
Carriere, was the agent of Francis J. Berry, an American attorney.

On the morning of the 11th of June, Carriere and Berry visited the
public jail accompanied by their interpreter, Fabian Hernandez, and
while there made agreements with some of the prisoners, Finohermoso
being one of them. They demanded of him the sum of P100 for the
services which the defendant, Berry, had promised to render. The
payment of this amount was to be secured by a lien upon a tract of land
containing 1,000 coconut trees. It should be noticed that the owner of
the land himself testified that he never entered into any contract for
the sale of his land.; that he could not afford to part with it for
less than P3,000; that the document submitted to him for his signature
was, according to what the interpreter Hernandez told him, a mortgage
deed to secure the payment of the P100. Hernandez in his testimony
corroborated the statement of Finohermoso in so far as it related to
Carriere.

The justice of the peace before whom the document marked “Exhibit A”
was executed testified that, according to the interpreter Carriere, the
instruments ratified by the prisoners, Finohermoso being one of them,
although purporting to be actual conveyances were in fact mere
mortgages; that he, at the request of Carriere, who communicated with
the defendant, Berry, occasionally in English, so explained it to the
prisoners, who signed the papers; that he did not remember having read
the instrument literally to Finohermoso.

The defendant, Berry, can not now plead that he was ignorant of the
acts of his employee, who claimed to be his agent and procured for him
clients among those confined in the public jail. He had knowledge
beforehand of the document which was to be executed by Finohermoso and
was present at the jail when Pinohermoso through deceit was induced to
sign the instrument. He furthermore procured the inscription of that
document in the Registry of Property, tendered the corresponding fees,
and requested the treasurer by letter to expedite the matter as he
intended to dispose of part of the property acquired by him through
such criminal methods. The defendant and his clerk, Carriere, secured
cedulas for those prisoners who did not have any, Finohermoso being one
of them.

The evidence for the defense can not overcome or even weaken the
probatory force of the strong and conclusive circumstantial evidence
furnished by the record, which, taken as a whole, shows that the
defendant is guilty beyond a reasonable doubt. He can not be permitted
to allege that his agent, Carriere, acted for himself and without his
knowledge, since it is an admitted fact that his agent acted in
pursuance of a mutual agreement and understanding between them. These
facts show that the defendant is guilty of consummated estafa,
and the penalty by him incurred is that provided for in article 534,
paragraph 2, of the Penal Code, considering the amount stipulated in
the instrument signed by Finohermoso.

Having reached this conclusion, it will not be necessary to
determine whether or not the services were actually rendered by the
defendant.

No extenuating or aggravating circumstances having attended the
commission of the crime, the corresponding penalty should be imposed in
its medium degree.

The foregoing disposes of the second and third assignments of error
contained in appellant’s brief. As to the first assignment it may be
said that the penalty prescribed for the crime of estafa is arresto mayor in its medium degree to presidio correccional
in its maximum degree, and that the Court of First Instance had
therefore jurisdiction to try this case and this court the power to
take cognizance of the same on appeal.

For the reasons above stated we are of the opinion that the judgment
of the court below should be reversed, and the defendant, Francis J.
Berry, sentenced to four months and one day of arresto mayor
with the accessory penalties prescribed in article 61, and to pay the
costs of both instances. The deed of sale executed by Cornelio
Finoherinoso June 11,1904, and marked “Exhibit A” is hereby declared
null and void.

Let the case be remanded to the Court of First Instance with a
certified copy of this opinion and of the judgment to be entered in
accordance herewith for its execution. So ordered.

Johnson, Carson, and Willard, JJ., concur.

Arellano C. J., and Mapa, J., dissent.