G.R. No. 1180. January 13, 1904

October 16, 1902, an information was filed in the Court of First
Instance of this city against Rafaela Santos and Rosalia Anacleto,
charging them with the crime of

estafa.
It was alleged that on or
about the 10th day of June, 1902, Rafaela Santos and Rosalia Anacleto
received certain jewels described in the complaint, the property of 

Doña
Gregoria Cobarrubias, the total value of which was $2,040,
Mexican currency, and that between the said 10th day of June and the
9th day of October following, the defendants, in the city of Manila,”
willfully, feloniously, and without the consent of the owner of said
jewels, appropriated the same and converted them to their own use, to
the damage of the prosecutrix and contrary to the statute in the case
made and provided.

The complaint having been filed, the defendants were tried
thereon. From the evidence introduced in the course of the
proceedings it appears from a document in the record marked “Exhibit
A,” which is signed by the defendants and which was identified
by them, the woman Anacleto admits that on the 10th day of June,
1902, the date of the document, she received from Bernabela Modesto,
an agent of Dona Gregoria Cobarrubias, the jewels which, with their
respective values, are described therein. These jewels, the document
states, were delivered to Anacleto by the woman, Modesto, on the
behalf of said Cobarrubias, the lawful owner thereof, upon the
condition that they were to be sold for the respective prices
indicated in the document. The document also stipulated that the
jewels were to be returned as soon as possible if not sold, and the
price of such jewels as were disposed of was to be duly paid over to
their owner.

It seems that early in the month of June, 1902, Rosalia Anacleto
Avent to the house of Bernabela Modesto and asked for some jewelry
to sell, upon the pretext that she knew some prospective purchasers.
The woman, Modesto, thereupon went to the woman, Cobarrubias, and got
from the latter the jewels which the woman, Anacleto, had asked for,
and delivered them to the latter on the 10th of June. Since that time
she has not recovered the jewels or their value. For more than four
months Bernabela Modesto endeavored to recover the jewelry. She
finally succeeded in getting Rosalia Anacleto and Rafaela Santos—the
latter being a woman who, according to the defendant Anacleto, was
her companion in the matter—to visit the owner of the jewels. On
that occasion Rosalia stated that she had sold the jewels in company
with Rafaela, and asked

Señora
Cobarrubias for some more jewelry to
sell. The latter refused to give her any, and presented to the two
women for signature the document noted on page 12 of the record.
Rosalia, under numerous pretexts, tried to avoid signing, but finally

Señora
Cobarrubias made the two women subscribe to it. This document
was introduced at the trial in the presence of the defendants and
with their knowledge.

The facts related constitute the crime of estafa, defined
and punished in article 534, paragraph 3, and article 535, paragraph
5, of the Penal Code.

The defendants, to the damage of the complaining witness, Gregoria
Cobarrubias, made away with a number of pieces of jewelry itemized in
the document introduced in evidence by the prosecution, the total
value of the jewelry exceeding 6,250 pesetas. The crime was committed
by fraud and deceit, on the pretext that the defendants had some
prospective purchasers for the jewelry. Relying upon this statement
the owner delivered the jewels. These were not returned to her, nor
did she receive the price thereof; consequently the action of the
defendants has caused her damage.

The defendants pleaded not guilty, and denied having received any
jewels from Bernabela Modesto. The defendant Rosalia testified that
the jewels were received from Gregoria Cobarrubias, and that they had
not been returned to her. Both defendants testified that they had
signed a document in which they were granted an extension of time for
the return of the jewels. The defendant Rafaela states that the
jewels are now in the provinces. The defendant Rosalia testifies that
the jewels have not yet been returned to their owner, and that this
is the reason she has been accused.

Notwithstanding the denial and exculpatory allegations of Rosalia
Anacleto, the record nevertheless contains sufficient evidence to
show that she is guilty as principal of the crime charged. From the
facts established by the evidence it appears that she received the
jewels for sale on commission, subject to the obligation of returning
them if they were not sold, or of delivering the money received if
they were disposed of, and that she did not return the jewels or the
money, notwithstanding the demands made upon her by Bernabela and her
husband. She has acknowledged that she received the jewels, as
appears from the document whose authenticity she admitted, and she
acknowledges that she subsequently sold them. This statement was made
by her in the presence of the owner of the jewels and of two
witnesses. Nevertheless the money realized by the sale of the jewelry
was not delivered to the owner. Consequently it follows that the
defendant either misappropriated the money received, in the event
that the jewels were actually sold, or else that she fraudulently
converted to her own use and failed to pay for the jewels, to the
damage of the owner thereof.

No generic, aggravating, or mitigating circumstances attended the
commission of the crime, and therefore the penalty must be imposed in
the medium degree.

With respect to the other defendant, Rafaela Santos, the evidence
does not show that she received or took part in the receipt of the
jewels in question. The jewels she referred to in her testimony must
be different, judging from the other data in the case. Even if it be
true that she cooperated in the sale of the jewels disposed of by the
other defendant, the record still fails to disclose evidence that she
had received any part of the product of such sales or that she had
knowledge of the fraudulent acts of Rosalia Anacleto. Therefore
Rafaela Santos can not be regarded as a participant in the commission
of the crime, and she must accordingly be acquitted.

For the reasons stated we are of the opinion that Rosalia Anacleto
must be convicted and sentenced to two years eleven months and ten
days of prision correccional, instead of presidio
correccional, in accordance with the provisions of article 95 of
the code, together with the accessory penalties established by
article 61 thereof, to the restitution of the jewels misappropriated
by her, or to the payment of the value thereof, and in case of
insolvency, to suffer the corresponding subsidiary imprisonment,
which will in no case exceed one-third part of the principal penalty,
and to the payment of one-half of the costs of both instances.
Rafaela Santos is acquitted, with the other half of the costs de
oficio. The judgment of the court below is affirmed in so far
as it is in harmony with this decision and reversed in so far as it
is in conflict therewith.

Judgment will be rendered in accordance with this opinion and the
case remanded to the court below for its execution.

Arellano C.J., Cooper, Willard, Mapa, McDonough, and
Johnson, JJ., concur.