THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. PROTESTATO MALUNDA, DEFENDANT AND APPELLANT.

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}This is an appeal from a judgment of the Court of First Instance convicting
the defendant and appellant of the crime of estafa. The commission of the crime
is charged in|he information as follows:

” Que en o hacia el mes de Agosto del presente ano 1913, en el municipio de
Balasan, provincia de Iloilo, Islas Filipinas, el referido acusado voluntaria,
ilegal y criminalmente y mediante fraude y engano recibio y obtuvo de Gil
Bilaran la suma de noventa pesos (P90.00) con la expresa obligacion de pagar con
dicha suma los derechos de pesqueria llamado ‘sapiao’, que estaba en deber dicho
Gil Bilaran, y el citado acusado en lugar de ingresar en la tesoreria municipal
la mencionada cantidad, como se habia obligado hacerlo, se apropio los noventa
pesos para sus usos propios y lucro personal en perjuicio del referido Gil
Bilaran, hecho cometido con infraccion de la Ley. “

From the evidence adduced by the prosecution it appears that on August 17,
1913, one Gil Bilaran, a fisherman from the barrio of Pantalan, municipality of
Balasan, Iloilo Province, stopped at the barrio of Estancia while en route to
Balasan for the purpose of paying his fishing license tax, and that upon
learning that the municipal treasurer was in the barrio he called at the house
of councilman Venancio Cudilla to see the treasurer; that he there met Cudilla
and the defendant the municipal president, and was informed that the treasurer
had left; that the defendant then undertook to accomodate him by taking the
money and turning it over to the treasurer; that Bilaran then gave the defendant
P90 in the presence of Cudilla, which amount was to be turned over to the
treasurer in payment of Bilaran’s fishing license; that the defendant did not
turn the money over to the treasurer nor return it to Bilaran, and allowed the
tax to become delinquent.

The defendant admitted that he met Gil Bilaran at the House of Venancio
Cudilla and was told by him that he desired to pay his fishing license, but
defendant swore that the municipal treasurer was there at that time and that the
money was given to the treasurer. The defendant’s testimony in this regard was
corroborated by that of one Fausto Alfuente, the chief of the municipal police,
who claimed that he also was at the house of Cudilla at the time when Bilaran
called, and that he witnessed the payment of the money to the municipal
treasurer.

The trial court accepted as true the testimony of the complaining witness and
declined to believe the story told by the defendant and his witnesses, and
convicted the defendant of the crime with which he was charged in the
information, sentencing him at the same time to six months of arresto mayor, to
the indemnification of the complaining witness in the sum of P90, with
subsidiary imprisonment in case of insolvency, and to the payment of the
costs.

The only real questions raised on this appeal are questions of fact which
turn largely on the degree of credit which should be accorded the various
witnesses called for the prosecution and the defense. Nearly 150 pages of
typewritten testimony was taken in the court below, and there is a decisive
conflict in the account of what occurred at the time that Bilaran called at the
house of Cudilla, as given by Bilaran, Cudilla and other witnesses called for
the prosecution and that given by the defendant and his witness the chief of
police. In the very nature of things the testimony of either one group of
witnesses or the other is false. The trial judge accepted the account of these
incidents as given by the witnesses for the prosecution, and refused to believe
the testimony of the accused and his witnesses. We find nothing in the record
which would justify us in disturbing his findings in this regard.

Counsel for appellant submits an exhaustive brief in which he undertakes to
analyze the testimony of the various witnesses called at the trial, and insists
that certain apparent inconsistencies and contradictions in the testimony of the
various witnesses called for the prosecution are such as to raise a reasonable
doubt as to the truth of their evidence.

Upon a careful review of the whole record we find nothing which would justify
us in disturbing the findings of fact by the trial judge. The typewritten
transcript of the testimony clearly discloses that all these witnesses were
subjected to a close and searching cross-examination, and the questions
propounded by the trial judge himself clearly indicate that he was fully alert
to the possibility that the defendant might be the victim of a conspiracy. He
appears to have carefully examined and considered the alleged contradictions and
inconsistencies between the testimony of the various witnesses, and to have
given them due weight in making his findings. Nevertheless he had no hesitation
in finding that the testimony of the accused and of his principal witness, the
chief of police, was unworthy of credence, and in accepting as true in all
substantial and material matters the testimony of the witnesses for the
prosecution.

In discussing the testimony of these witnesses the trial judge said:

” These witnesses were cross-examined by counsel for the defense and by the
court also, trying in every way to find out if they were telling the truth.
Cudilla was a man of more than the average intelligence. His manner of
testifying would impress anybody that he was telling the truth absolutely, so
far as I can see or find out, without any interest whatever in the result of
this trial. Gil Bilaran was a man of average intelligence. He told a little
different story about the manner in which he gave the money to the presidente,
this defendant, from that told by Cudilla but it was not anything that made one
suspicious of the truth of their statements. The treasurer said that he went to
Cudilla’s house and stayed only a few minutes and that he went out to a cocoanut
grove to see about the taxes on tuba and that he did not see Gil Bilaran at all.
Yet the presidente and his policeman swore that none of them left the house from
12 o’clock until half past 3 when they sailed for Binonan. Cudilla said himself
that the treasurer only stayed in his house a few minutes and was not there at
any time after Gil Bilaran came. To authorize the acquittal of this defendant it
could only be done by imputing perjury to Cudilla, to the treasurer,to the
traveling deputy, and to Bilaran and believing him and ths policeman in
preference.

” This chief of police, his manner on the stand, his hesitation, and
embarassment at every question all indicated that he was not telling the truth.
He swore that Cudilla had cases dismissed and was confronted with his own
request to the justice of the.peace to dismiss the very men that he said Cudilla
had the cases dismissed against. He then said that the presidente directed him
to do it and the presidente intimated that he had made some enemies for favors
not shown to them and that he was doing this to curry favor when asked about it.
So far as I am able to apply the rules in giving weight to evidence; so far as I
can tell by any knowledge I might have of human nature and experience in
listening to witnesses, there isn’t any doubt in my mind that the chief of
police swore a malicious lie when he said that this treasurer collected that P90
instead of the presidente. He did not deliver his statement in such a way that
made it reasonable or easily believed. He was embarassed throughout; refused to
answer some questions until pressed very hard or directed by the court to
answer, and in every way showed that he was not telling the truth. When this
case was first set for trial and continued at this defendant’s request he did
not at that time accuse the treasurer of stealing the money; did not intimate
such a thing, and it seems that the whole defense of accusing this treasurer of
stealing the P90 instead of himself was made up after he was told what the chief
of police’s testimony would amount to, it being simply negative
testimony.”

We have no doubt that the trial judge’s conclusions in this regard were well
founded, and we find no error in the proceedings prejudicial to the substantial
rights of the accused

The judgment entered in the court below convicting and sentencing the
defendant and appellant should therefore be affirmed, with the costs of this
instance against the appellant.

It is so ordered.