G. R. No. 3332. July 18, 1907

On the 26th day of June, 1905, the following complaint was presented against the  defendant, charging him with the crime of estafa;

“That  on or about the 25th  day of April, 1905,  in the city of Manila, P. I., the said Harry B. Mulford, ordinarily known as H. B. Mulford, did then and there  willfully, unlawfully, feloniously, and with intent of gain, appropriate,misapply, and convert to his own use, one thousand dollars($1,000), United States currency, the property of El Banco Americano, ordinarily  known as The American Bank, a corporation duly organized and registered under the laws of  the Philippine Islands on  September 6,  1901,  and existing and  doing a  general banking  business in said city  of  Manila  ever since said  date,  which  said sum of  one thousand dollars  ($1,000)  was  then  and there received by and  in the care, custody, control,  and posession of the said Harry B. Mulford as cashier and manager of  said  corporation  and bank  for management, investment, and administration  as a  part of the funds of the said Banco Americano under the duty and obligation on the part of  the  said defendant,  Harry. B. Mulford, to deliver and return the same to the said Banco Americano;  all  to  the  damage  and prejudice of  the  said Banco Americano, and O. M.  Jenkins,  then  and there a creditor and depositor  of said  bank,  and  numerous other creditors and depositors of said bank, in the sum of  one thousand dollars  ($1,000),  United States currency, which sum is the equivalent of and equal in value to  the sum of ten thousand  (10,000) pesetas; that the said Harry B. Mulford was then and there cashier and manager of said corporation and bank, and has been suchcashier and manager at all times since its foundation and organization a foresaid; that the  said defendant, Harry B. Mulford, then and there covered  up and concealed the said appropriation, misapplication, and conversion of the said sum of one thousand dollars ($1,000), United States currency, by means of fictitious, fraudulent, and false entries in the account books of the said Banco Americano made by him from time to time during the time he was manager and cashier as aforesaid, and by means of a certain fictitious, false, and fraudulent promissory note for one thousand dollars ($1,000), bearing date of April 25, 1905, and purporting to  have been  executed to the  said  Banco Americano by Go Chinco and Sy Pa, but  in truth and in fact made and fabricated by the said defendant without authority, payable ninety days after date and bearing the number 1896 in said bank, so as to make it impossible to ascertain and determine whether the said one thousand dollars ($1,000),  United States currency, was appropriated, misapplied, and converted by the said Harry B. Mulford on. the said 25th day of April,  1905, or at some time or times prior to the said 25th day  of April, 1905, during the existence and lifetime of  the said Banco Americano, and therein and thereby making it impossible to determine the specific pieces of money converted and misappropriated as aforesaid;  that the said defendant had  at  all times and does still refuse to account for, pay  over, and deliver to the said Banco Americano the said sum of one thousand dollars  (P 1,000),  United  States currency, or  any part thereof.
 
“Signed and sworn to by J. L. Barrett.”

After hearing the evidence adduced during the trial of said cause, the lower court found the defendant guilty of the crime of estafa and sentenced him to be imprisoned for a period of two years of presidio correctional, with the accesories of article 58 of the Penal Code and to return to the Insular Treasury the sum of $1,000, United States currency, the  amount “estafada?‘ and  to suffer, in case of insolvency,  subsidiary imprisonment, which Avas not to exceed one-third part of the principal penalty, and to pay the costs.

From this sentence the defendant appealed to this court, and made the following assignment of errors:

1. That the judgment and sentence of the said Court of First Instance was contrary to law.
2. That the judgment and sentence of the said Court of First Instance was contrary to the evidence.

After a careful  consideration of the  evidence adduced during the trial of the lower court, we find the following facts to be  true:

(1) That the American Bank was a  corporation duly organized and registered under the laws of the Philippine Islands on the 6th day of September, 1901, and existed and  did a general banking business in the city of Manila from said date until  the 18th day of May, 1905.
 
 (2) That the said defendant, Harry  B.  Mulford, Avas cashier and manager of said banking corporation from the date of  its organization until the said 18th day of  May, 1905, when the affairs and business of said corporation were taken control of by the Insular Treasurer of the Philippine Islands, under and by virtue of an order of the Governor-General of the Philippine Islands, in conformity  with the provisions  of Act  No. 556 of the Philippine Commission.
 
 (3)  That as cashier of said bank, the said Harry B. Mulford, under the by-laws of said banking corporation, “had the entire active management of the business of the corporation, etc., with  power to perform all the duties usually performed by such  officer, together with such other duties as the board  of directors might  designate,” and as such cashier had control, custody, and possession of the funds and  deposits of said banking corporation.
   
 (4)  That on the said 18th day of May, 1905, when the Insular Treasurer took possession of the funds and assets of said  banking corporation,  he found  there  thirty-six promissory notes, amounting to the sum of $36,500, United States currency, which notes were carried upon the books of said company by the  said Mulford as a  part of the assets of said banking corporation; that the note bearing date of April 25, 1905, purported to have been executed to the said banking corporation by Go Chinco and Sy Pa; that the said  thirty-six promissory notes were signed by sixty-nine persons, including the  said  Go  Chinco  and Sy Pa; that after repeated efforts on the part of the said Insular Treasurer,  none of the sixty-nine signers of the said notes, including Go Chinco and Sy Pa, could be found within the city of Manila nor within the Philippine Archipelago; that the said Insular Treasurer used every means possible for the  purpose of ascertaining  the whereabouts of the persons whose  names  appear signed  to the said promissory notes.
   
 (5)  That according  to the records of said banking corporation the promissory note  described in the complaint and  numbered 1896 had  been executed and delivered to the bank on the 27th day of October, 1904, and  renewed two different times thereafter, to wit, on the 25th day of January, 1905, and again upon the 25th day of April, 1905.

 (6)  That according to the records of said banking corporation, the actual  cash  funds of said bank  had been reduced  in an amount equal to the said promissory note described in the above complaint, thereby showing that some person had actually taken out of the assets of said bank $1,000, United States currency, on a date corresponding to the date of the said promissory note.
 
 (7)  That the  said  banking corporation had received from stockholders and depositors, from time to time, large sums of  money and had on deposit and under the control and in the possession of the said defendant these sums of money, holding and managing the same as representative of the said banking corporation and in trust for the said depositors.
   
 (8) That the defendant, Harry B. Mulford, as cashier and manager  of  said banking corporation, and being in control and possession of the funds and assets of said corporation, did  appropriate, misapply, and  convert  to  his own use the sum of  $1,000,. United  States currency,  by means of fictitious, fraudulent, and  false  entries  in the books of said  banking corporation,  which entries were made by  him from time to time as cashier and manager of said corporation, and by means of a certain fictitious, false, and fraudulent promissory note executed by himself, signing the names thereto of Go Chinco and Sy Pa, representing  thereby that Go  Chinco and Sy Pa were legitimate debtors of said bank,  whereas and in fact the persons  Go Chinco and Sy Pa, if such persons exist at all, never did sign the  promissory note described in the  complaint,  nor give their consent that the said defendant should sign their names to the said promissory note.
   
 (9) That the said defendant, Harry  B. Mulford,  although he has  been requested  to return the said $1,000,United States currency, to the possession of said banking corporation and to the custody of the Insular Treasurer of the Philippine Islands, has continually refused  so  to do, and that  by such fraudulent misappropriation of the funds of said banking corporation and the  depositors therein, and  his refusal to return the said funds, he has thereby  injured said banking corporation and  said depositors  to an amount equal to the said promissory note.

From all of the foregoing facts we are of the opinion, and so hold, that the defendant, Harry  B. Mulford, did fraudulent misappropriate and apply to  his own use the sum of $1,000, United States currency, which he had under his control and in his possession belonging to the American Bank and the depositors of said bank, and that by reason of said fraudulent misappropriation of  said sum, the said bank and depositors  have suffered a loss and  damage  to that extent.
 
 There were neither extenuating nor aggravating circumstances connected with the commission  of the offense; the defendant therefore must be punished  in the medium degree of presidio correctional in accordance with paragraph 5 of article 535, in its relation with paragraph 3 of article 534 of the Penal Code.  Paragraph 3 of article 534 provides that,  if the  amount  defrauded shall exceed  6,250 pesetas, the person, shall be punished with the penalty  of presidio correctional  in its minimum and  medium degrees.One thousand dollars gold is equivalent to 10,000 pesetas. Inasmuch as the penalty imposed by paragraph 3 of article 534 is composed of two degrees, we must apply  article 82  of  the Penal  Code.  Applying this article, the medium degree of the penalty provided for  by said paragraph 3 would be one year eight months and twenty-one days  to two years eleven months and ten days.
 
 It is our opinion that by reason of the peculiar trust and confidential relations  which existed between the defendant, by  virtue of his position as cashier and manager of said banking corporation, and his relation to the said bank and its depositors, that he should suffer the  maximum penalty of the medium degree; therefore it is” the judgment of this court that the sentence of the  lower court be reversed and that the defendant should be imprisoned for a  period of two years eleven months and  ten days of presidio correctional, with the  accessory penalties of article 58 of the Penal Code and to pay the sum of $1,000, United States-currency, to the Insular Treasurer, in  trust for the said

 American Bank and its creditors, and in case of insolvency to suffer subsidiary imprisonment, which shall  not exceed the one-third part of the principal penalty, and to pay the costs.  So ordered.
 
Arellano, C. J., Torres, Willard, and Tracey, JJ., concur.