DIONISIO ESGUERRA, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES, RESPONDENT.

Appellant Dionisio Esguerra found by the Court of Appeals guilty of
estafa, defined and penalized under Article 315, paragraph 3, 2 (a) of
the Revised Penal Code, and sentenced to the penalty therein provided,
has taken this appeal by certiorari upon the following assignment of
errors:

1. The Court of Appeals erred in convicting
   the accused of estafa under Art. 315, paragraph 3, 2(a), that is,
   estafa through false pretenses, when the trial court, the fiscal and
   the private prosecutor assured the accused at the trial that he was
   being prosecuted for estafa under Art. 315, 1(b), that is
   misappropriation of money received in trust or on commission or for
   administration, although in fact the information did not charge estafa
   under any of those two provisions, so that the motion to quash on the
   ground that the information did not state an offense should have been
   sustained.

2. The Court of Appeals
   erred in holding that the accused offered to compromise the case, when
   the evidence to establish the alleged offer of compromise was rejected
   by the trial court.

3. The Court of
   Appeals erred in not holding that the best evidence of the sum of
   P2,000 allegedly given to the accused on March 11, 1952 was the receipt
   being prepared therefor when the accused left to catch a passing bus if
   in fact such sum was received by defendant.

4. The Court of Appeals erred in not holding that on the undisputed
   documentary evidence of record, the obligation of the accused, if any,
   was civil and not criminal.

5. The
   Court of Appeals erred in sentencing the accused to 2 months and 1 day
   of arresto mayor to 1 year and 6 months of prision correccional and
   affirming the trial court’s decision in all other respects, with costs,
   and in not acquitting the accused.

The information filed in the trial court reads, thus:

INFORMATION

“The
undersigned fiscal accuses Dionisio Esguerra of the crime of ‘Estafa’
defined and punished under Art. 315, 3rd paragraph (b), committed as
follows:

“That on or about and during the period from
January 12, 1952 to March 26, 1952, in the barrio of Siain,
municipality of Atimonan, province of Quezon, Philippines, and within
the jurisdiction of this Honorable Court the said accused upon
representations made with Yu Yek Huy & Co., a business firm duly
organized and existing under and by virtue of the laws of the
Philippines, thru the Manager of said Company, Yu Yek Bio, that the
said accused had copras ready for delivery to it, took and received
from said Yu Yek Bio the sum of four thousand four hundred pesos
(P4,400.00) under the express obligation on the part of the said
accused to deliver to the said company the equivalent worth of copras
at its bodega at Siain, Atimonan, Quezon as follows: P2,400.00 worth of
copras on or before January 31, 1952; and P2,000.00 worth of copras on
or before fifteen days from March 11, 1952, or the same sum of money on
the respective dates aforestated but the said accused once in
possession of the said sum of money and far from complying with
aforesaid obligation, despite repeated demands made upon him to do so,
did then and there wilfully, unlawfully and feloniously with intent to
defraud the aforesaid company, misapply, misappropriate and convert the
said amount to his own personal use and benefit to the damage and
prejudice of the Yu Yek Huy & Co., in the aforestated amount of
P4,400.00 Philippine Currency.”

It is to be
noted that the first paragraph for the Information specifically refers
to the 3rd paragraph, (b) of Article 315 of the Revised Penal Code as
the provision under which the accused was being prosecuted. This
particular paragraph refers to estafa committed by resorting to some
fraudulent practice to insure success in a gambling game. On the other
hand, that part of the information referring to representations that
the accused had copras ready for delivery, would seem to imply that the
estafa charged is that defined and penalized under paragraph 2 (a)—by
falsely pretending to possess . . . property, business, etc. The
succeeding portion, however, of the same information which alleges
failure to deliver the copra or return the money on the dates agreed,
charges the accused of misappropriation and conversion under paragraph
1(b) of the same Article 315.

In view of this ambiguity in
the information, a motion to quash was filed by the accused. (The
motion to quash is not before us, but from the statement of the Court
of Appeals—”whether the allegations in the information constitute an
offense or multiple offenses, will be taken up in subsequent legal
incursions”—it would seem that the ground relied upon is that the
allegations in the information charge no offense, or if they do, they
charge multiple offenses.) At the hearing of the motion, the fiscal and
the private prosecutor both manifested that there was a clerical error
in the first paragraph of the information and stated and assured that
the accused was being charged under paragraph 1 (b) of Article 315.^[1]
The trial court admitted the correction and the accused went to trial
with that understanding and assurance. After trial in due time, the
lower court found the accused guilty as thus charged under Article 315,
paragraph 1(b), and sentenced him accordingly. On appeal to the Court
of Appeals, where the accused questioned the correctness of the
judgment of conviction under the information as corrected and on the
facts proven, the appellate court modified the decision of the trial
court and declared:

* * * * * * *

“The
evidence for the prosecution fully established the fact that the two
sums of P2,400.00 and P2,000.00 were given to the accused on the
latter’s pretense that he had copra in his bodega which he was drying.
Yu Yek Bio testifying, said:

A.—	He told me that he had many copras in his bodega and that he will deliver to me the copras corresponding to the amount of P2,000.00 together with the 10,000 kilos, which he promised to deliver at first.’ (t.s.n., p. 5).

But
the said appellant admittedly had no such copra then. Appellant,
however, insisted that he had already delivered the copra corresponding
to the first payment of P2,400.00 and to prove this delivery, he
presented in evidence Exhibits 1 to 1-K, the purchase vouchers showing
the receipt of copra by the complainant company on different dates from
Felix Mendoza, Diego Sulit, Diosdado Engco (2 vouchers), Jose Perez (2
vouchers) Jose Cal, Juanito Esguerra, Juan Gonzales (2 vouchers) and
Tomas Luna. They were all stamped paid. A great deal of misgiving,
however, accompanies this proof; it is unbelievable.

* * * * * * *

“Anent
the second amount of P2,000.00, delivered on March 11, 1952, the
appellant alleged that he did not receive the same, as he was in his
place at Malasak, Atimonan, conducting a liquidation with a copra
dealer Amado Villamiel in the morning and in the afternoon of the said
day, he was delivering copra to Yang, the manager of Gua Chi Gan. But
the evidence of the prosecution belies these allegations in an
immeasurable manner.

* * * * * * *

”
* * * We have no reason to doubt the veracity and truthfulness of these
State witnesses who testified in a direct, positive and straightforward
manner.

“While we agree with counsel that the appellant
cannot be held guilty of estafa under paragraph 1-b, Art. 315 of the
Revised Penal Code, we are nevertheless of the opinion, and so hold,
that appellant is responsible for a violation of paragraph 3 (2-a) of
the same article, which penalizes any person who shall defraud another
(2) By means of any of the following pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud;
(a) by using fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency, business, or imaginary transactions or by means of other similar deceits”
(italics ours). The information describes and alleges this means of
committing “swindling” and the evidence adduced, amply substantiates
said allegations.”

Consequently, the Court
of Appeals held appellant guilty of estafa under paragraph 3(2-a) of
Article 315. It is from this decision that the accused has taken this
present appeal by certiorari.

The issue here is whether
after denial of a motion to quash, precisely on the vagueness of the
information, upon assurance by the fiscal and the private prosecutor
and accepted by the court that the offense for which the accused was
being prosecuted is that of misappropriation defined in paragraph 1(b)
of Article 315, involving unfaithfulness or abuse of confidence and
under which the accused entered trial, the latter could, on appeal, be
convicted of an entirely different offense with different elements,
that of false pretenses of possessing property or business made prior
to or simultaneously with the commission of the fraud. The appellant
submits that he could not, especially when the latter offense is not
adequately alleged in the information.

We incline to agree
with the appellant. It is undisputed that the information contains no
allegation of misrepresentation, bad faith or false pretenses,
essential element in the crime of which appellant was found guilty by
the Court of Appeals. This is so, evidently, because, as already
stated, the fiscal and the private prosecutor avowedly were prosecuting
the accused for the crime of misappropriation and conversion committed
with unfaithfulness and abuse of confidence for which the appellant
went to trial and was convicted by the lower court. It is true the
information states that “the accused, upon representations (not misrepresentations)
that the accused had copras ready for delivery to it, took and
received” the sum of P4,400.00. Nowhere does it appear in the
information that these “representations” were false or fraudulent, or
that the accused had no such copra at the time he allegedly made such
“representations”. The falsity or fraudulentness of the pretense or
representation or act being the very constitutive element of the
offense, allegation to that effect, either in the words of the law or
in any other language of similar import, must be made in the
information if the right of the accused to be informed of the nature
and cause of the accusation against him is to be preserved. In this
case, for instance, since the representation wherefor the money was
delivered is not being charged as false, and since, if not false, the
receipt of the money on such representation does not constitute an
offense, the motion to quash the information on the ground that it did
not charge an offense or the allegations therein did not constitute an
offense, should have been granted. Instead, the fiscal and the private
prosecutor assured the court, and both the court and the accused
depended on the assurance, that the offense charged is not that of
misrepresentation or false pretense, but that of misappropriation and
conversion, of unfaithfulness and abuse of confidence. To convict him
now of the very offense which he correctly assailed was not adequately
alleged in the information and with which the prosecution expressly
stated they were not charging the accused, would result not only in
violating appellant’s constitutional right to be informed of the nature
and cause of the accusation against him, but in actually misleading him.

Pertinent on this point is Section 4 of Rule 116 of the Rules of Court which provides:

“Sec. 4. Judgment in case of variance between allegation and proof.—When
there is variance between the offense charged in the complaint or
information, and that proved or established by the evidence, and the
offense as charged is included in or necessarily includes the offense
proved, the defendant shall be convicted of the offense proved included
in that which is charged, or of the offense charged included in that
which is proved.”

Stated differently, an accused may be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that proved. Still stated differently, an accused can be convicted of an offense only when it is both charged and proved.
If it is not charged although proved, or if it is not proved although
charged, the accused can not be convicted thereof. In other words,
variance between the allegation and proof cannot justify conviction for
either the offense charged or the offense proved unless either is
included in the other.

On the merits, there is reason to
believe that the responsibility of herein appellant is only civil in
nature. Exhibit A, upon the strength of which the prosecution mainly
relies, reads:

“Received from Messrs. Yu
Yek Huy & Co., the sum of Two Thousand four hundred Pesos
(P2,400.00) only representing advance payment of 10,000 kilos of copra
which I sold them and shall be delivered in their bodega at Siain,
P.I., on or before Jan. 31, 1952.

Jan. 12, 1952 “

	(Sgd.) D. ESGUERRA
		Signature of Seller”

The
language of this receipt, together with the finding of the Court of
Appeals that “Factually, the appellant used to supply copra not only to
complainant, but also to other copra exporters in Siain”, clearly
indicate, in our opinion, that the transaction was that of sale of
copra for future delivery. Obviously, an advance payment is subject to
the disposal of the vendor. If the transaction fails, the liability
arising therefrom is of a civil and not of a criminal nature.^[2]

In view of the foregoing, the decision appealed from is reversed; the accused is acquitted, with costs de oficio, and the bond given for his provisional liberty cancelled. So ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Gutierrez David, JJ., concur.

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^[1] “1. With unfaithfulness or abuse of confidence, namely:

(a) * * *;

(b) By misappropriating . . etc. . . .”

^[2] Abeto vs. People, 90 Phil., 681.