THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ALEKO LILIUS, DEFENDANT AND APPELLANT.

In this case, the accused Aleko Lilius was charged with the crime of estafa and, upon conviction by the trial court, was sentenced to one year and one day of prision correccional
with the accessory penalties prescribed by the law, and to indemnify
the offended party Luneta Hotel in the sum of P1,306.29, with the
corresponding subsidiary imprisonment in case of insolvency. From this
judgment the accused appealed.

In the year 1931 and prior
thereto, the defendant was a guest at the Luneta Hotel of which Robert
L. Hobbs is the owner. The alleged offense charged consists in that the
appellant issued four checks against the Jolo Branch of the Philippine
National Bank in favor of the Luneta Hotel, to wit: Exhibit A for P500,
issued on January 2, 1931; Exhibit B for P500, on January 9, 1931;
Exhibit C for P372.17, on January 9, 1931; and Exhibit F for P340, on
January 26, 1931, without having sufficient funds to cover the amount
thereof either on the dates of their issuance or on those on which they
were presented for payment, as a result of which they were dishonored.

Exhibit A was issued by the appellant in exchange for cash which he
received from the complainant. The defendant testified that upon
issuing the check in question, he was asked by the cashier of the
complainant whether he had sufficient funds in the bank to cover the
amount thereof, to which he replied that he was not sure, but that he
believed he had and that, at any rate, if he did not have, he would
cable to New York to have sufficient funds placed to his credit. The
trial court mentions this defense of the appellant and does not reject
it in its decision. On the other hand, the appellant’s testimony is
corroborated by that of Clayton who stated that he was present at the
time the former made such statement. However, the trial court stated in
its decision that such defense was not valid on the ground that the
mere fact of the issuance of a check amounts to a positive averment
that he has funds for the payment thereof. That is true. Such
presumption is reasonable and justified by the nature of the
transaction. However, in the case at bar, this presumption is modified
by reason of the statements of the appellant from which it may be
clearly inferred that there was a possibility of his not having funds
in the bank at the time be issued the check. If the appellant made such
statement to the cashier of the offended party upon issuing the check
Exhibit A and, in spite of such statement, the said cashier accepted
the check in question and delivered the amount thereof to the
appellant, he did so fully aware of the risk he was running thereby. If
it proved later that the appellant neither had sufficient funds on the
date he issued such check nor at the time it was presented for payment,
such risk was foreseen at the time of the acceptance thereof. In this
sense, it may be said that the appellant did not act fraudulently. This
conclusion is confirmed further by the fact that, according to the
evidence of record, the appellant had a balance of P433.35 in the bank
on the date of the issuance of the check in question, which would about
cover the amount thereof. Furthermore, the day before the presentation
of the check for payment, the appellant had a balance of P504.40 in his
favor, which sum covered the full amount of the check. It may be noted
that the appellant had a current account with the Jolo Branch of the
Philippine National Bank making deposits and withdrawals, his deposits
during the year 1931 having amounted to P3,293.35 and his withdrawals,
to P3,052.30. His deposits were made by means of money orders received
from New York.

With respect to check Exhibit A, our
conclusion is that the appellant, in issuing it, did not do so
fraudulently and that the complainant, in accepting the same, was fully
aware of the possibility that the appellant might not have funds in the
bank on the date of the issuance thereof.

With respect to
checks Exhibits B and C, it is admitted that they were issued by the
appellant in payment of his debt at the hotel for board and lodging.
With respect to Exhibit F, the appellant’s evidence proves that it was
issued by him at the request of Hobbs and that he received nothing in
exchange therefor. Testifying in the case with reference to Exhibit F,
Robert L. Hobbs stated that the appellant issued it in payment of an
account. Although it is true that he corrected his testimony
immediately, saying that said check was issued by the appellant in
exchange for cash which the latter received, however, later during the
same cross-examination, he reaffirmed that the appellant delivered it
to him in payment on account of his debt. We note that on this point
Hobbs could not recall the circumstances surrounding the issuance of
Exhibit F, which circumstance justifies our acceptance of the
appellant’s testimony to the effect that he received nothing in
exchange for the check in question and that it was issued by him in
payment of his debt at the hotel.

Inasmuch as these last
three checks Exhibits B, C and F were issued in payment of a debt, even
granting that the appellant issued them without sufficient funds to
cover the amount thereof, and furthermore, that he acted fraudulently
in issuing them, such act does not constitute the offense of estafa.
The appellant obtained nothing under said checks. His debt, for the
payment of which said checks were issued, had been contracted prior to
such issuance. Hence the deceit, if there was any in the issuance of
the questioned checks, did not precede the defraudation. On the other
hand, the record does not show that the debt had been contracted
through fraud. (Decisions of the Supreme Court of Spain of December 18,
1889, June 9, 1891, and January 16, 1906.)

Wherefore,
reversing the judgment appealed from, the defendant is hereby absolved
from the offense with which he was charged, with the costs de oficio. So ordered.

Street, Abad Santos, Vickers, and Diaz, JJ., concur.