THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. VICENTE F. SOTELO, DEFENDANT AND APPELLANT.

On the 5th day of January, 1914, the prosecuting attorney of the city of
Manila presented a complaint against the said defendant, charging him with the
crime of estafa. The complaint alleged: “That on or about January 2, 1914, in
the city of Manila, Philippine Islands, the said Vicente F. Sotelo, having
received from one Manuel Araneta for safe-keeping, on commission or for
administration, a plain gold ring set with three diamonds, valued at P250, the
property of the said Manuel Araneta, for the purpose of selling it and
delivering the proceeds thereby derived to the said Manuel Araneta within a
period of two hours or of returning the said ring to the latter in case he
should be unable, to sell it, the said accused, Vicente F. Sotelo, did, then and
there, willfully, unlawfully, and criminally misapply, misappropriate, and
convert the said ring or its value in the sum of P250, Philippine currency, to
his own benefit, to the damage and prejudice of the said Manuel Araneta in the
sum of P250, equivalent to 1,250 pesetas; that the accused is a
recidivist; all contrary to law.”

Upon said complaint the defendant was duly arrested, arraigned, tried, found
guilty, and sentenced, by the Honorable Richard Campbell, judge, to be
imprisoned for a period of four months and one day of arresto mayor,
and to pay the costs. From that sentence the defendant appealed to this court
and made the following assignments of error;”First. The trial court erred in
finding that Manuel Araneta or Alejandra Dormir testified that Manuel Araneta
delivered the ring to the defendant, upon an agreement that the defendant should
sell the same for not less than P250, Second. The trial court erred in finding
that the defendant was guilty, beyond a reasonable doubt.”

With reference to the first assignment of error, the lower court said: “He
[Manuel Araneta] states positively that he delivered the ring to the defendant,
with the distinct understanding that the latter should sell it and return with
the money to him, the agreement being that he should sell it for not less than
P250.”

An examination of the record, however, shows that Manuel Araneta testified
with reference to the price for which the defendant was to sell the ring, as
follows: “On the morning of the 2d day of January (1914) this year, I met Mr.
Sotelo, the accused in this case. He asked me where I was going and I told him I
was going to sell a diamond ring. I asked him if he could find a purchaser for
me, because, I tojd him, the best offer I had received was P120. About 12:30
that same day Mr. Sotelo appeared at my house; at that time we were eating; my
brother-in-law, my sister, and the owner of the ring (Alejandra Dormir) were
there eating. He stated he had at last found a purchaser who was willing to pay
P180 or P190, I do not remember exactly, for the ring; that at 1.30 he would
return and bring with him the proceeds of the sale of the ring. Then I told the
owner of the ring to turn it over to Mr. Sotelo for its sale, stating at the
same time that I knew Mr. Sotelo. Then, as 2 and 3 o’clock passed without the
defendant appearing in the house, and because I assumed the responsibility for
the ring—because I had assured the owner of it of my confidence in Mr. Sotelo—I
started to find Mr. Sotelo.”

In answer to the question “Why did you [Manuel Araneta] tell Sotelo to find a
purchaser for you?”—he said:

“In order to find out whether there was some one who would offer more than
P120 for the ring, because the owner wanted P180 or more.”

The foregoing is all the testimony found in the record concerning the price
at which the defendant was to sell the ring.

Alexandra Dormir, the owner of the ring, testified that she had paid P250 for
it, but there is nothing in the record which justifies the finding of the lower
court that the defendant agreed to take the ring and to sell it for not less
than P250. While the finding of the lower court as to the amount for which the
defendant agreed to sell the ring is not in accordance with the evidence, it was
not a finding which in any way exculpates the defendant, provided the record
shows that he did receive from the owner the ring in question, under an
agreement to sell it at some price and to return the money which he
should receive to the owner.

With reference to the second assignment of error, the lower court said, in
his summary of the proof: “The testimony of Manuel Araneta is to the effect that
the ring in question is the property of one Alexandra Dormir, who delivered it
to him (Manuel Araneta) to sell; that he in turn delivered it to the defendant
herein, Vicente Sotelo, after some conversation in which Sotelo said he could
find a customer for it, and an agreement was made whereby Sotelo should return
during the day and deliver the proceeds of the sale to the said Manuel Araneta.
This testimony is corroborated by the woman, Alexandra Dormir, the owner of the
ring in question. She testified that being in need of money, she turned the ring
in question over to Manuel Araneta, who was a friend of her family, in order
that he might sell it and deliver the proceeds of the sale to her.

“The accused does not deny that the ring was delivered to him, nor that he
pawned the ring in the pawnshop of one Guillermo Ruiz, at 1810 Calle Azcarraga.
He states, however, that it was pawned with the knowledge and consent of Manuel
Araneta, who told him (the accused) that he was in need of P20, and asked him if
he would not take the ring and pawn it for him and bring the money; that, later,
after he had pawned the ring for 1*20, and had given the money to Manuel
Araneta, the latter asked him to obtain for him P50 additional on the ring,
which the accused did, delivering to Araneta the second time the sum of P49.40,
60 centavos being deducted by the pawnbroker as interest; whereupon, says the
accused, Manuel Araneta gave him the sum of P4.40 as his commission on the
transaction.

“The court is of the opinion that the evidence demonstrates the guilt of the
accused, beyond a reasonable doubt. He has a bad reputation, having been
convicted of theft in 1902, and sentenced to three years six months and
twenty-one days. Moreover, it is the opinion of the court that the
declaration of the accused, with respect to the consent of Araneta in the
pawning of the ring is false and, therefore, can not be taken into consideration
as a defense in this case.”

With reference to the .second assignment of error, the guilt or innocence of
the accused depends wholly upon the proof—a question of fact only. The
prosecution alleged and tried to prove that the accused was given the ring for
the purpose of selling it at a price not less than P180 or P190, and to return
the money or purchase price to the owner within a period of about one hour. The
accused admits that he received the ring at the time and place when and where
the owner alleges that he gave it to him. He denies, however, that he received
the ring for the purpose of selling it on commission. He alleges that he
received it for the purpose of pawning it. He admits that he pawned it, at first
for P20, but took no pawn ticket at that time, and that the P20 were delivered
to the owner (or Manuel Araneta) and that later he returned to the same
pawnbroker and received the further sum of P50 (P49.40), which was also
delivered to the owner (or Manuel Araneta). He alleges that when he received the
P50 (P49.40) he took a pawnbroker’s ticket for the same.

We have, then, the only difference between the prosecution and the accused a
question of fact, whether or not the ring was delivered to the accused to be
sold or to be pawned. If it was delivered to the accused to be pawned, and he
did pawn it, in accordance with his instructions, and did return the money to
the owner, then, in that case, there is no breach of trust and he is not guilty
of the crime charged. If, upon the other hand, the ring was delivered to the
accused to be sold, and he neither sold the ring nor returned it to its owner,
then he is guilty as charged in the complaint. The lower court, after a careful
analysis of the proof adduced during the trial of the cause, reached the
conclusion that the evidence showed, beyond a reasonable doubt, that the
ring was delivered to the accused to be sold and that he neither returned the
ring nor its purchase price to the owner.

There were but four witnesses examined during the trial of the cause, two for
the prosecution and two for the defense. The first witness for the prosecution
was Manuel Araneta. He testified that he had known the defendant for about two
years; that at the request of Alexandra Dormir he delivered the ring in question
to the defendant to be sold; that he told the defendant that he had received an
offer of P120 for the ring; that the defendant represented that he had a
purchaser who was willing to pay P180 or P190 for the ring; that the ring was
given to the accused to be sold at that price (P180 or P190); that the defendant
promised to return with the purchase price within about an hour; that the ring
was given to the defendant at about 12.30 noon, and he promised to return with
the purchaseprice at 1.30 p. m.; that he (Manuel Araneta) waited until between 3
and 4 o’clock p. m. for the return of the defendant; that the defendant did not
return up to that time nor at any other time, with the ring; that between 3 and
4 o’clock he (Manuel Araneta) went to the office of the prosecuting attorney of
the city of Manila, and made a complaint against the said defendant.

He further testified that the ring had been pawned several times and that the
owner had redeemed it from a pawnbroker, on the morning of the day (January 2,
1914) on which it had been delivered to the defendant.

Alejandra Dormir, the other witness presented for the prosecution, testified
that she was the owner of the ring; that she had paid P250 for it; that the ring
had been pawned; that she had redeemed it on the same day that it was delivered
to the defendant, because she wanted to sell it; that she went to the house of
Mr. Araneta and told him that she wanted to sell the ring and asked him whether
or not he could sell it; that Mr. Araneta told her that he knew a man who wanted
to buy a ring; that the defendant arrived at the house where she was in company
with Mr. Araneta and others, while they were eating; that the ring was upon her
finger at that time; that the ring was taken off of her finger and delivered to
the defendant; that she did not authorize the defendant to pawn the ring.

The defendant testified in his own behalf and said that at about 8 o’clock or
8.30 on the morning of January 2, 1914, he was driving in a carromata from his
house in Rizal Avenue; that as he was passing near the house of Mr, Araneta he
saw him and bade him good morning; that Mr. Araneta asked him whether he knew
any person who wanted to buy a ring and he showed him the ring on his finger;
that he told Mr. Araneta that he was not devoting himself to such small things,
but that, notwithstanding that fact, he knew a person, one Vicenta Zialcita,
who was engaged in the business of selling and buying jewelry; that Mr. Araneta
asked him to accompany him to this woman’s house; that he refused, saying that
he was very busy, but would come back about twelve o’clock that same day to
accompany him; that he did return to the house of Mr. Araneta at about 12
o’clock that same day; that when he came to the house of Mr. Araneta he saw that
the people of the house were eating their meal; that Mr. Araneta invited him
into the house; that once inside of the house, I asked him whether he was
really to go to the house of Vicenta Zialcita, but he said no; Mr. Araneta
then asked me if I had P20, because he was in need of the money; that Mr.
Araneta then asked him if he could not pawn the ring, and I told him that I
would see what I could do and he then gave the ring to me; that he went to the
house of Juan Bebing, who was the appraiser of the pawnshop of Guillermo Ruiz;
that he told Juan Bebing that he wanted to pawn the ring for P20, because a
friend of his was in need of that money; that he was going to redeem it tomorrow
because it was going to be sold; that he received the P20; that no pawn ticket
was issued for it; that he returned to Rizal Avenue and left the carromata at
the corner and from there walked to the house of Mr. Araneta and delivered the
money to him; that Mr. Araneta asked him if he could not get P50 more on the
ring; that he said he was not sure; that it was then 12 o’clock and that he was
hungry; that, notwithstanding that, he told him (Araneta) that he would come
back between 2 and 3 o’clock; that after giving Mr. Araneta the P20 he returned
at about 2.30 in company with Hipolito Cruz; that he again returned to the
pawnshop and saw Mr. Bebing and his (Mr. Bebing’s) wife needed P20 for market
purposes, and he (Bebing) had pawned the ring for the same amount; that he told
him (Bebing) that the owner of the ring wanted another F50; that he (Bebing)
said that it was all right; that we could fix it up by putting on the ticket
P70, with 3 per cent interest on the P20; that Bebing made out a ticket for P70,
deducting sixty centavos, and that he (Bebing)gave him P49.40; that he also saw
in the report which is sent by the pawnshops to the police where his name
appeared as Vicente Sotelo and that he changed the name with his own hands and
made it Vicente F. Sotelo; that later he took Mr. Cruz to the house of Manuel
Araneta and delivered the P49.40 to Manuel Araneta; that Manuel Araneta gave him
P4.40 as his commission.

The said Hipolito Cruz testified and in part confirmed the declarations of
the accused. His testimony is of little value, however, upon the particular
question presented, for the reason that he was not present at either of the
times the accused alleges that he received the two sums of money from the
pawnbroker and neither was he present at the time the accused alleges he
delivered the money to Manuel Araneta.

An examination of the declaration of the accused shows that he admitted that
he took the ring and that he knew a person, Vicenta Zialcita, who was engaged in
the business of selling and buying jewelry. He does not, however, at any time in
his declaration, attempt- to show that he took the ring to the said Vicenta
Ziajcita, for the purpose of attempting to sell it to her. Another peculiar fact
also appears in his declaration. It is the fact that the said Juan Eebing, who
was supposed to have been the appraiser of the pawnshop of Guillermo Ruiz, die
not place the ring with Ruiz, but pawned it himself, whether to some other
pawnbroker or not, does not appear. Bebing was not called as a witness. His
declaration might have thrown some light upon the conduct of the defendant. The
prosecution alleges that the ring was delivered to the defendant to be sold by
him. The defendant admits, while alleging that it was given to him to pawn, that
he told the owner that he knew a person (Vicenta Zialcita) who wanted to buy a
ring. The defendant says that he offered to accompany the owner to said person
(Vicenta Zialcita). If the ring was given to him to pawn, why did he offer to
take the owner to a person who desired to buy it? That fact seems to contradict
his statement that he received the ring only for the purpose of pawning it.

We think the proof shows, beyond a reasonable doubt, not only by the
witnesses for the prosecution but also by the admissions of the defendant, the
following facts:

That on the 2d day of January, 1914, at about 12.30 p. m., the owner of the
ring delivered it to the defendant, to be sold by him, at a price not less than
P180 or P190, under the obligation to return the same, or the purchase price,
within about one hour thereafter; that the defendant did not return either the
ring or the purchase price within said time nor at any other time; that his
failure to return either the ring or the purchase price has resulted in great
prejudice and damage to the owner.

This court has held in numerous cases that such facts show clearly that the
defendant is guilty of the crime of estafa and should be punished under
paragraph 5 of article 535, in relation with paragraph 2 of article 534 of the
Penal Code. (U. S. vs. De Guzman, 1 Phil. Rep., 138; U. S.
vs.. Zamora, 2 Phil. Rep., 582; U. S. vs. Anacleto, 3 Phil.
Rep., 172; U. S. vs. Singuimuto, 3 Phil. Rep., 176; U. S. vs.
Ner, 4 Phil. Rep., 131; U. S. vs. Ongtengco, 4 Phil. Rep,, 144; U. S.
vs. Aquino, 4 Phil. Rep., 402; U. S. vs. Berry, 5 Phil. Rep.,
370; U. S. vs. Leano, 6 Phil. Rep., 368; U. S. vs. Solis, 7
Phil. Rep., 195; U. S. vs. Goyenechea, 8 Phil. Rep., 117; U. S.
vs. Celis, 8 Phil. Rep., 378; U. S. vs. Rodriguez, 9 Phil.
Rep., 153; U. S. vs. Da Silva, 10 Phil. Rep., 39; U. S. vs.
Leyva, 10 Phil. Rep., 43; U. S. vs. Mefiez, 11 Phil. Rep., 430; U. S.
vs. Alabanza, 11 Phil. Rep., 475; U. S. vs. Perello, R. G. No.
5133^[1]; U. S. vs. Melad, 27 Phil.
Rep., 488.)

In the crime of estafa, as well as that of larceny, the punishment depends
upon the amount or the value of the article misappropriated or stolen. In the
present case the owner asserted that she paid P250 for the ring. There is no
proof to the contrary. She offered to sell it, in the present case, for P180 or
P190. The ring may have been worth P250 at the time she purchased it. The value
which she placed upon it at the time she gave it to the defendant, we think
should be considered its value at that time, in the absence of other evidence,
for the purpose of fixing the punishment.

The appellant makes an effort to show, inasmuch as Mr. Araneta, who gave the
ring to him, was not its owner, that he was not guilty of the crime of estafa,
even though he misappropriated it. The crime of estafa is committed, although
the victim was not the owner of the property, but the holder or broker simply,
when it appears that the real owner was prejudiced by the disappearance of the
property. That fact is more particularly true when the person committing the
illegal act knew that the property did not belong to the holder but to some
other person. (U. S. vs. Almazan, 20 Phil. Rep., 225.) In the present
case the proof shows that while the ring was delivered to him by Manuel Araneta,
he knew that the real owner was Alejandra Dormir.

The record does not show whether or not the ring was returned to its owner,
in accordance with the provisions of article 120 of the Penal Code. It is a
general principle that no man can be divested of his property without his own
consent or voluntary act. In the case of Varela vs. Finnick (9 Phil.
Rep., 482) this court said, speaking through Mr. Justice Torres: “Whoever may
have been deprived of his property in consequence of a crime, is entitled to the
recovery thereof, even if such property is in the possession of a third party
who acquired it by legal means other than
those expressly stated in article
464 of the Civil Code.”

The only exception made by article 464 of the Civil Code seems to be where
the property has been pledged in a “monte de piedad” established under authority
of the government. In such a case the owner cannot recover the property without
previously refunding to said institution the amount of the pledge and the
interest due. (Varela vs. Matute, 9 Phil. Rep., 479; U. S. vs.
Menez, 11 Phil. Rep., 430; U. S. vs. Perello, R. G. No. 5133; Arenas
vs. Raymundo, 19 Phil. Rep., 46; Reyes vs. Ruiz, 27 Phil.
Rep., 458.)

Whoever claims to have acquired title to property, real or personal, through
some agent or person not the real owner, must be prepared to show that the
person of whom he purchased such property had authority to transfer the same.
(Manning vs. Keenan, 73 N. Y., 45; Meiggs vs. Meiggs, 15 Hun,
N. Y,, 453; McGoldrick vs. Willits, 52 N. Y., 612; Succession of
Boisblanc, 32 La. Ann., 109; Loomis vs. Barker, 69 111., 360; Bertholf
vs. Quinlan, 68 111., 297; Thompson vs. Barnum, 49 Iowa, 392;
Bercich vs. Marye, 9 Nevada, 312; Voss vs. Robertson, 46 Ala.,
483; Wheeler & Wilson vs. Givan, 65 Mo., 89; Switzer vs.
Wilvers, 24 Kansas, 384; 36 Am. Rep., 259.)

To the foregoing general rule, that no man can be divested of his property
without his own consent or voluntary act, there seem to be two apparent
exceptions, as follows:

First. Where the owner has entrusted or delivered to an agent, money or
negotiable promissory notes, and where the money or negotiable promissory notes
have, been delivered or transferred to some third innocent party.

This exception is apparently based upon the exigencies of commerce and trade.
Money bears no earmarks of peculiar ownership. Its primary purpose is to pass
from hand to hand as a medium of exchange, without other evidence of its title.
Negotiable promissory notes, so far as it is possible, are intended to represent
money, and, like it, to be a means of commercial intercourse, unfettered by any
qualifications or conditions not appearing on its face. (Banco Espanol-Filipino
vs. Tan-Tongco, 13 Phil. Rep., 628; Daniel on Negotiable Instruments,
sections 769, 862;,McMahon vs. Sloan, 12 Pa. St., 229; 51 Am. Dec,
601.)

It is a fundamental principle of our law of personal property that no man can
be divested of it without his own consent; consequently, even an honest
purchaser, under a defective title, cannot resist the claim of the true owner.
The maxim that “No man can transfer to another a better title than he has
himself” obtains in the civil as well as the common law. (Pothier, Traite du
Contrat de Vente, 1, N., 7; Ersk. Inst., 418.) And hence it is now recognized
everywhere in the United States, as well as in civilized Europe, that a sale “ex
vi termini” imports nothing more than that a bona fide purchaser succeeds only
to the rights of the vendor. (2 Kent’s Commentaries, 324; Saltus vs.
Everett, 20 Wend., N. Y., 267; 32 Am. Dec, 541; Gibson vs. Miller, 29
Mich., 355; Lancaster” National Bank vs. Taylor, 100 Mass., 18; 97 Am.
Dec, 70.)

Second. Another exception to the general rule is based upon the doctrine of
estoppel. An illustration of this second exception would be where a man
voluntarily placed property in the possession of one whose ordinary business it
is to sell similar property as an agent for the owners. In such a case it is
warrantable inference, in tne absence of anything to indicate a contrary intent,
that he intends the property to be sold. For example, where the owner sends his
goods to an auction room, where goods of a like kind are constantly being sold,
he would be estopped from recovering them in case they were actually sold.
(Pickering vs. Busk, 15 East., 38.) In all such cases, however, under
this exception, there must be some act or conduct on the part of the real owner,
whereby the party selling is clothed with the apparent ownership or authority to
sell, which the real owner will not be heard to deny or question, to the
prejudice of an innocent third party, dealing on the faith of such appearance.
If the rule were otherwise, people would not be secure in sending their watches
or jewelry to a jewelry establishment to be repaired, or clothing to a clothing
establishment to be made into garments. (Wilkinson vs. King, 2
Campbell, 335; Pickering vs. Busk, 15 East., 38; Levi vs.
Booth, 58 Md., 305; 42 Am. Rep., 332.)

During the trial proof was presented to show that the defendant, in the year
1902, had been sentenced to be imprisoned for a period of three years six months
and twenty-one days, for the crime of larceny, and that he had been
conditionally pardoned by the then Governor-General, Mr. Taft, on the 27th day
of July, 1903. That proof was presented for the purpose of fixing the penalty to
be imposed upon the defendant. In view of the pardon, may the fact that the
defendant was sentenced be considered as a circumstance, for the purpose of
increasing the penalty, in accordance with the provisions of paragraph 17 of
article 10, of the Penal Code? Article 130 of the Penal Code provides that
criminal liability is extinguished in several different ways: “(a) By
the death of the offender; (b) by service of the sentence; (c)
by amnesty; (d) by pardon; (e) by pardon of the offended party
(repealed by section 2 of Act No. 1773) ; (f) by prescription of the
crime; (g) by prescription of the penalty.”

In reading said article 130, we find in paragraph 3 that the liability which
is extinguished by amnesty, completely extinguishes the penalty and all its
effects, while extinguishment by pardon, during the period which the
sentence would have lasted, except for the pardon, does not altogether
extinguish the penalty. There is a condition imposed by law, to the effect that
the pardoned person shall not live in the place of residence of the offended
party, without the latter’s consent, and that a violation of that provision
would work a revocation of the pardon. While we have been unable to find any
decisions of the supreme court of Spain upon the question which we are
discussing, we find that Viada (vol. 1, p. 315) says: “A pardon should not be an
impediment to the consideration of recidivation as an aggravating circumstance,
for, according to article 130, paragraph 4, of the code, a pardon only produces
the extinction of the penalty, but not of its effects.”

After due consideration of the provisions of article 130, together with the
views of Viada, we are inclined to the view that the pardon does not operate to
defeat the consideration of the former conviction as an aggravating
circumstance.

The lower court imposed the penalty in the medium degree. Considering the
aggravating circumstance of recidivation, the penalty should be imposed in the
maximum degree. Therefore, the sentence of the lower court is hereby modified,
and the defendant is hereby sentenced to be imprisoned for a period of six
months and one day of prision correccional and to pay the costs.

Arellano, C. J., Torres and Araullo, JJ., concur.

Carson and Moreland, JJ., dissent.

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^[1] Not reported