PEOPLE OF THE PHILIPPINES, COMPLAINANT AND APPELLEE, VS. SOLEDAD NERY, ACCUSED AND APPELLANT.

This is an appeal from a judgment of the Court of First Instance of Negros Occidental convicting Soledad Nery for estafa. The Court of Appeals certified it to this Supreme Court, the one and only issue raised in the appeal being one of law.

The accused-appellant, Soledad Nery, conforms to the following findings of fact of the trial court:

On 15 November 1954, in a market stall in Bacolod City, the said
accused received from Federico Matillano two (2) diamond rings to be
sold by her on commission. The agreement was for the accused to
deliver, on the following day, the sum of P230.00 to her principal, to
whom the accused had represented having a ready buyer, and whatever
overprice could be obtained in the sale would be retained by the
accused as her commission.

Soledad Nery failed to show up on the following day; after several
days, in a casual encounter with Federico Matillano, she claimed that
her prospective buyer withdrew from the transaction and that she was
looking for another buyer. Days, weeks, and months passed; and, his
patience exhausted, Federico brought the matter to the attention of the
police authorities of Bacolod on 5 January 1955. In no time, Soledad
was found and brought to the police station; then and there, she
promised, in writing (Exh. “A”), to deliver the price of the rings or
the rings on 25 January 1955.

When the last-mentioned date arrived and Soledad failed to comply
with her promise, the City Attorney, at the instance of Federico
Matillano, filed on 12 February 1955 a complaint with the municipal
court. The case was either withdrawn or dismissed, however, the accused
making two payments of P20.00 each to Federico.

After these payments, the accused failed to pay further; hence, the
fiscal filed the corresponding information, dated 30 June 1958, with
the court of first instance.

On 10 October 1958, during the pendency of the case in the court of
first instance, the accused, assisted by counsel, Atty. Marcos Gomez,
executed a deed, which is copied hereunder, as follows:

“Bacolod City
October 10, 1958

I hereby promise to pay Mr. Federico Matillano, the
sum of One Hundred Ninety Pesos (P190.00) Philippine Currency, to be
paid in the following manner:

 

For	the	month	of	Nov. 1958	–	P50.00
”	“	“	“	Dec. 1958	–	40.00
”	“	“	“	Jan. 1959	–	100.00

In the event that I fail to comply with the above compromise, the
complaint for estafa filed against me by Mr. Matillano will be push
through, .

(Sgd.) Soledad Nery.

I hereby bind myself jointly and severally to the above-mentioned obligation of Soledad Nery.

(Sgd.) Atty. Marcos S. Gomez

Witness:

(Sgd.) Leopoldo Lopez.”

During the month of March, 1959, the accused Soledad Nery tendered a
P50.00-payment to Federico Matillano, which the latter accepted, but
the balance of the pries of the two rings was never paid.

Finding the accused guilty beyond reasonable doubt of the crime of estafa, the trial court imposed an indeterminate sentence of no less than two (2) months and one (1) day of arresto mayor to no more than one (1) year and one (1) day of prision correccional;
to indemnify Federico Matillano the sum of P140.00, representing the
unpaid balance, with subsidiary imprisonment in case of insolvency at
the rate of P2.50 a day but not exceeding a third of the principal
penalty; and to pay the costs.

The only issue is defined in the appealed decision, as follows:

“La cuestion mas importante que se plantea ante la
consideration del Juzgado, es si la transaction original habida
verbalmente enteo la acugada y el ofendido en la mañana del 15 de
Noviembre de 1954, formalizada mas tarde el 5 de Enero de 1955, por
medio del documento de compromiso, Exh. A, ha sido novada por vitud de
los pagos parciales de a P20. cada uno, Exhs. 1 y 2, y del otro
documento de compromiso, Exh. E, de manera que la responsabilidad
criminal de la acusada originada por la infraccion de la transaccion
originada ha venido a convertirse en una simple responsrabilidad civil.”

Borrowing from a theory expressed in four decisions of the Court of
Appeals, namely: People vs. Galsim, CA-G.R. No. 531-R, Feb. 26, 1948,
45 Off. Gaz, 3466, Aug. 1949; people vs. Trinidad, 53 Off. Gaz., 731,
Feb. 15, 1957; People vs. Doniog, CA-G.R. No. 16993-R, 53 Off. Gaz.,
No. 15, 4500; and People vs. de la Rama, CA-G.R. No. 17677-R, May 21,
1958, the accused in the present case insists that there is no
prohibition in our law to prevent the parties to a contract to novate
it so that any incipient criminal liability under the first is thereby
avoided.

The novation theory may perhaps apply prior to the filing of the
criminal information in court by the state prosecutors because up to
that time the original trust relation may be converted by the parties
into an ordinary creditor-debtor situation, thereby placing the
complainant in estoppel to insist on the original trust. But after the
justice authorities have taken cognizance of the crime and instituted
action in court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability, as
distinguished from the civil. The crime being an offense against the
state, only the latter can renounce it (People vs. Gervacio, 54 Off.
Gaz., 2898: People vs. Velasco, 42 Phil., 76; U.S. vs. Montañes, 8
Phil. 620).

It may be observed in this regard that novation is not one of the
means recognized by the Penal Code whereby criminal liability can be
extinguished; hence, the role of novation may only be to either prevent
the rise of criminal liability or to cast doubt on the true nature of
the original basic transaction, whether or not it was such that its
breach would not give rise to penal responsibility, as when money
loaned is made to appear as a deposit, or other similar disguise is
resorted to (cf. Abeto vs. People, 90 Phil., 581; U.S. vs. Villareal,
27 Phil., 481).

Even in Civil Law the acceptance of partial payments, without
further change in the original relation between the complainant and the
accused, can not produce novation. For the latter to exist, there must
be proof of intent to extinguish the original relations, and such
intent can not be inferred from the mere acceptance of payments on
account of what is totally due. Much less can it be said that the
acceptance of partial satisfaction, can effect the nullification of a
criminal liability that is fully matured, and already in the process of
enforcement. Thus, this Court has ruled that the offended party’s.
acceptance of a promissory note for all or part of the amount
misapplied does not obliterate the criminal offense (Camus vs. Court of
Appeals, 92 Phil., 85; 48 Off. Gaz., 3898).

The Court of Appeals decisions conform to the views here expressed.
In the Galsim case, the principal had accepted the sub-agent to answer
for the jewelry, thereby releasing the agent. In the case of Trinidad,
the Court expressly found that the compromise had taken place
“immediately after the loss of the money in question, and long before
the case was brought to court”. In the case before us, however, the
alleged novation occurred after the criminal case had been instituted,
and while it was pending trial. In fact, the novation theory advanced
by the accused has been rejected, time and again, by this Supreme
Court, in a legion of decisions. Of late, we stated: .

“* * * * *, it is well-settled that criminal
liability for estafa is not affected by compromise or novation of
contract, for it is a public offense which must be prosecuted and
punished by the Government on its own motion though complete reparation
should have been made of the damage suffered by the offended party
(U.S. vs. Mendozona, 2 Phil., 353; U.S. vs. Ontengco, 4
Phil., 144; U.S. vs. Rodriguez, 9 Phil., 153; People to Leachon, 56
Phil., 739; Javier vs. People, 70 Phil., 550). As was said in the case
of People vs. Gervacio 102 Phil., 687, a criminal offense is committed
against the People and the offended party may not waive or extinguish
the criminal liability that the law imposes by the commission of the
offense’. The fact, therefore, that the accused herein had, with the
consent of the offended party, assumed the obligation of Paying the
rentals, which he collected, out of his own salary after he had
committed the misappropriation, does not obliterate the criminal
liability already incurred.” (People vs. Benitez, 108 Phil;, 920)

Nor is the case altered by the dismissal of the first charge in the
municipal court, since under the law in force in 1955; (Rep. Act 296)
that court had no jurisdiction over the offense, which was properly
cognizable in the Courts of first instance that had original
jurisdiction in all criminal cases in which the penalty is more than
six months or fine of more than P200,00 [sec. 44 (f)].

In view of the foregoing, the appealed decision should be, as it is hereby affirmed, with costs against the accused-appellant.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepción, Barrera, Paredes, Dizon, Regala, and Makalintal, JJ., concur.