G.R. No. L-29243. November 28, 1969
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PRUDENCIO MAGLAYA Y LIM, DEFENDANT -APPELLANT.
CONCEPCION, C.J.:
From a decision of the Court of First Instance of Manila,
defendant Prudencio Maglaya
y Lim has interposed the present appeal, which was certified to Us by the Court
of Appeals, the only question therein raised being one purely of law.
Appellant was tried, on a plea of not guilty, under an
information charging him with the crime of qualified theft and alleging:
“That in or about and during the period comprised the month of
October, 1963 to February 21, 1964, inclusive, in the City of Manila,
Philippines, the said accused, did then and there willfully, unlawfully and
feloniously, with intent of gain and without the knowledge and consent of the
owner thereof, take, steal and carry away the following personal property, to
wit:
“1 ‘Walther’ adding machine, Model SM?
32 with Ser. No.
957285-D/R No.
2335 valued at . . . . . . . . . . . . . . . . . . . . . P1, 800. 00
“1 ‘Adler’ typewriter, Model Electric
21 with Ser. No.
7113553-d/R No.
2334 valued . . . . . . . . . . . . . . . . . . . . . . . … . . . .
P1,900.00
“1 ‘Olympia’
typewriter, Model SG-1?
S, 15″ carriage Ser. No. 8698 &
695044-D/R 2342 valued at . . . . . . . . . . . . . .. . 1,125.00
“1 ‘Adler’ typewriter, model special
13″ Ser. No. 2314432 D/R-2242
valued at . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 895.00
“1 ‘Paymaster’ checkwriter, Model X?
550 Ser. No. 98 C-11970 D/R?
2190 valued at. . . .. . .. . . . . . . . . . . . . . . . . . . . .
. . . . . . 530.00
“1 ‘Olivetti’ Summa-Prima’ adding
machine Ser. No. 45446 D/R
No. 2191 valued at . . . . . .. . . . . . . . . . . . . . . . . . .
. . . . . 595. 00
“1 ‘Adler’ typewriter, Model Universal
(20) 13″ carriage Ser. No.
8035650 Chassis 8035650 Carriage
D/R-2103 valued . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 975. 00
“1 ‘Adler’ typewriter, Model Universal
(20) 13″ carriage, Ser. No.
8045014 & 8044973 D/R No. 2176
valued at . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 975. 00
“1 ‘Adler’ typewriter, model Special
13″ Ser. No. 2314496 D/R No.
2260 valued at . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .895. 00
“1 ‘Adler’ typewriter, Model Universal
(20) 15″ carriage, Ser. No.
8066312 & 8066325 valued at . . . . . . . . . . . . . . . . . .
1, 050. 00
“1 ‘Adler’ typewriter, model Universal
(20) 13″ carriage, Ser. No.
8034905, 8035641 valued at . . . . . .. . . . . . . . . . . . . . .
. 975. 00
“1 ‘Adler’ typewriter, Model Special
13″ Ser. No. 2314430-D/R No.
2238 valued at . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .895. 00
“1 ‘Walther’ Calculating machine?
manual Model WSR-160, Ser.
No. 165308 D/R No. 2258
valued at . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .780. 00
“1 ‘Adler’ typewriter, model electric
21 Pica, Ser. No. 7113555 D/R
2241 valued at . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .1, 900. 00
Total P13,390. 00
all valued at P13,390.00, belonging to the
PHOENIX MFG. & MERCHANDISING CORPORATION, to the damage and prejudice of
said owner, in the aforesaid amount of P13,390.00, Philippine currency.
“That in the commission of the said offense, the said accused
committed a grave abuse of confidence, he being then employed as a salesman of
the said Phoenix Mfg. and Merchandising Corporation, at the time, and as such,
had free access to the place where the property stolen were kept.
“Contrary to law.”
In due course, the trial court rendered a decision finding that:
“During the period between October, 1963 and February, 1964,
the defendant was a commission salesman of the Phoenix Manufacturing &
Merchandising Corporation with office at Dasmariñas Street, Manila. He had no fixed salary, but he received a
commission of 10% on the selling price of the articles he sold. The Phoenix Manufacturing & Merchandising
Corporation was engaged in the sale and distribution of typewriters and adding
machines, manual and electrical. The
procedure followed by the corporation was for the commission agent to contact
the prospective buyer and if he finds one, the commission agent reports to the
corporation and a delivery receipt is made out in favor of the prospective
customer indicating in the delivery receipt the name of the commission agent. The machine is then delivered by an employee
of the corporation accompanied by the commission agent to the prospective
customer for the purpose of trial for a period of not more than three days,
extendible upon request of the commission agent. x x x “
that during the period from October, 1963
to January, 1964, said corporation delivered the machines enumerated in the
information, with a total value of P13,390.00, to prospective customers of appellant;
and that:”
“x x
x Without authority from the Phoenix Manufacturing & Merchandising Corporation, the
defendant withdrew and pulled out these machines from the respective
prospective customers who had decided not to buy them, and instead of returning
the said machines to the Phoenix Manufacturing and Merchandising Corporation,
the accused pawned them with various pawn shops including the Agencia de Empenos de Tambunting, Inc. , Merced Hernandez, Agencies de Empeños de Vicente Lao, R. Pilares
Pawnshop, and R. Aguirre Pawnshop, Inc.
Not having returned the
machines to the Phoenix Manufacturing & Merchandising Corporation, the
attention of the accused was called by the company, and the accused promised to
return the same. The manager of the
company became suspicious, and he wrote to one of the customers, the A-1
Adjustment Agency, inquiring about the machines. The corporation received the answer, Exhibit
D, dated March 4, 1964, informing the Phoenix Manufacturing & Merchandising
Corporation that of the 5 machines that were delivered to it for demonstration,
only two were in their possession, the rest having been returned to the accused
Denny Chan or Prudencio Maglaya. Upon check-up of the records of the accused,
it was found out that several machines had been delivered under the name of the
defendant and had not been returned.
The matter was reported to the Manila Police Department in the letter
dated March 5, 1965 and now
marked Exhibit B, enumerating the machines which were missing. The accused was arrested by the police and
his statement was taken in writing, now marked Exhibit A. He admitted that he had taken the machines
enumerated in Exhibit B and covered by the delivery receipts, Exhibits C, C-1
to C-12; and that he had pawned them with various pawnshops; and he
surrendered to the police 6 pawnshop tickets now marked Exhibits G, H, I, J, K
and L. Seven other machines were covered by pawnshop tickets, but all the 13
machines described in the delivery receipts, Exhibits C to C-12 were recovered
by the police and returned to the Phoenix Manufacturing & Merchandising
Corporation, as evidenced by the receipts Exhibits E and F.
“The accused admitted having received these office machines
and pawned them. He testified further
that he had done this in the past, but without the knowledge of the corporation
whenever he needed money because his wife and children were sick, but he
redeemed them when he had money and returned them to the corporation; that he
had informed Mrs. Fuster and the manager of the corporation
that he had pawned these machines, and they told him not to do it again.
“Neither Mrs. Fuster or the manager
of the corporation could relieve the accused from criminal liability. As commission agent, it was the duty of the
accused when he withdrew or pulled out those machines from the customers to return them to the Phoenix
Manufacturing & Merchandising Corporation.
In pawning the machines without the authority of the corporation, he had
acted in breach of the trust reposed upon him by the corporation and this
constitutes the crime of estafa. “
Premised upon the foregoing facts, the trial court found
appellant guilty of estafa, under “Art.
308, par. (1) of the Revised Penal Code”, and sentenced him to an
indeterminate penalty ranging from six (6) months of arresto
mayor to five (5) years, five (5) months and eleven (11) days of prision correccional,
as well as to pay the costs. Hence, this
appeal, upon the ground that he cannot be convicted of estafa
under the allegations of the aforementioned information charging him with
qualified theft.
In this connection, We note that, although convicting appellant
of estafa, the provision cited in the decision
appealed from is Art. 308, paragraph one (1), of the Revised Penal Code, which
defines the crime of theft, and that the maximum penalty meted out is, either
that prescribed in subdivision 2 of Art. 309 of the same Code, which refers to
theft of property worth more than P6,000 but not exceeding P12,000, or that
provided for in the first paragraph of Art. 315 of said Code, for the crime of estafa, when the damage caused is over P12,000 but
does not exceed P22,000. It would seem,
however, that His Honor, the trial Judge had applied the latter provision,
because of the characterization, made in said decision, of the crime committed
by the accused.
Although both parties argue in their respective briefs on whether
the crime of estafa is included in that of
qualified theft alleged in the information filed in this case, We deem it unnecessary
to pass upon such question, for, under the facts proven, appellant is guilty of
the crime of theft. It is true that the
machines specified in the information were delivered to him by his prospective customers, but the
physical possession thus secured by him did not vest in him the juridical
possession necessary for the crime of estafa. Indeed, he had no authority from his employer,
the owner of said machines, to retrieve the same from said prospective
customers. He evidently had misled them
into believing that in retaking said machines he was acting on behalf of his
employer. From a legal viewpoint, he
had, therefore, taken and carried away the machines without the knowledge and
consent of the owner thereof. Having
concededly performed these acts with intent of gain, and caused damage and
prejudice to said owner, appellant is clearly guilty of the crime of theft.
Thus, in U.S.
v. De Vera[1],
We held that one who, having secured possession of a gold bar from its owner
under the pretext that he (the former) would have it examined by a silversmith
and then return it to said owner, but, instead disappeared with the gold bar,
was guilty of theft, not of estafa. Quoting with approval, from Viada, the eminent commentator on the Spanish Penal Code,
the following passage, involving a situation which is quite analogous to the
one at bar:
“Is the shepherd, who takes away and converts to his own use
several heads of the cattle under his care, guilty of the crime of estafa, within case No. 5 of article 548, or of
theft, defined and punished in article 533, No. 2, of the Code? – The Supreme Court has decided that it
was this latter and more serious crime that was committed: ‘Considering that the crime of theft is
committed when one, with intent of gain, and without using violence or intimidation
against persons, or force upon things, takes away personal property of another
without the owner’s consent; and in the present case Manuel Diaz Castilla undoubtedly committed the crime defined, for, with
intent of gain, he took away two bucks and a female goat, against the will of
his master, the owner of the said cattle, which were under his care as
shepherd: Considering that, in holding
that the crime committed was that of theft and not of estafa,
as claimed by the appellant, ignorant of the true elements which constitute
the latter crime, the lower court did not commit any error of law, nor violate
any legal provision, as contended by defendant’s counsel in support of this
appeal. ‘ (Decision rendered June 23, 1886, published in the Gazette of
September 16, p. 189.)”
We added in our decision in the De Vera
case:
“In the above cited case, did the shepherd receive the cattle
which were under his care? –
Undoubtedly. Were the cattle voluntarily
delivered by the owner to the shepherd?
– It is to be presumed. Did the
shepherd have the consent of the owner when he took away some of the cattle
and converted them to his own use? – No.
In this case of the shepherd, as in the example given, the crime committed was
that of theft, notwithstanding the fact that the thing misappropriated had been delivered
voluntarily by the owner to the supposed thief, who disposed of it without the
owner’s consent. And this is so because the
delivery of the cattle to the shepherd does not have the effect of transferring
the juridical possession of, or title to, the cattle thus delivered, x x x. “1
The doctrine laid down in the De Vera case was applied in People
v. Lacson 2 and in
People v. Isaac 3 involving, in the first case, a
bank teller who misappropriated money held by him as such, and, in the second,
the temporary driver of a jeepney engaged in public
service 4, who disposed of it with intent of gain and without
the consent of its owner, upon the theory that the bank teller had the money on
behalf of the bank, which was its juridical possessor, and that the jeepney was in the juridical possession of its owner,
although physically held by said temporary driver.
Although appellant had taken advantage of his position in
committing the crime aforementioned, We do not believe he had acted with grave
abuse of confidence and can be convicted of qualified theft, because his
employer had never given him the possession of the machines involved in the
present case or allowed him to take hold of them, and it does not appear that
the former had any especial confidence in him.
Indeed, the delivery of the machines to the prospective customers was
entrusted, not to appellant, but to another employee.
Inasmuch as the aggregate value of the machines stolen by
appellant herein is P13,390.00, the crime committed falls under Art. 308, in
relation to the first subdivision of Art. 309 of the Revised Penal Code, which
prescribes the penalty of prision mayor
in its minimum and medium periods. No
modifying circumstance having attended the commission of the offense, said
penalty should be meted out in its medium period, or from 7 years, 4 months and
1 day to 8 years and 8 months of prision mayor. The penalty imposed in the decision appealed
from is below this range.
WHEREFORE, with the modification that appellant should be
sentenced to an indeterminate penalty ranging from 2 years, 4 months and 1 day
of prision correccional
to 7 years, 4 months and 1 day of prision mayor,
the decision appealed from is hereby affirmed, in other respects, with costs against him.
IT IS SO ORDERED.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, Fernando and Teehankee,
JJ., concur.
[1]
43 Phil. 1000.
1 Underscoring ours.
2 57 Phil. 325, 334.
3 96 Phil. 931, 932.
4 The regular driver of which was
on vacation.