THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. PIO ESTABAYA, DEFENDANT AND APPELLANT.

On
the 19th of October, 1911, Pio Estabaya, the defendant and appellant in
this case, who was then justice of the peace of the municipality of
Bulusan, Province of Sorsogon, dismissed a criminal complaint filed by
one Vicente Gutierrez charging Martin Gallano and another with estafa.
In the course of the proceedings had on that complaint Gallano admitted
that he was indebted tf Gutierrez in the sum of P40.17, and after the
criminal complaint had been dismissed, it was agreed that Gallano
should pay that amount into the hands of the accused in this case, Pio
Estabaya, to be by him turned over to Gutierrez. In fulfillment of this
agreement Gallano paid over to the accused in smallamounts the sum of
^41, for which Estabaya gave him three separate receipts as follows:

	Exhibit B, February 7, 1912		P29.00
	Exhibit D, August 19, 1912		8.00
	Exhibit C, June 30, 1913		4.00
			_________
		Total	41.00

Estabaya
retained this money in his possession and failed and neglected to turn
it over to Gutierrez in accordance with the understanding entered into
between the parties. Gutierrez having learned from Gallano that the
total amount of the indebtedness had been paid to Estabaya, made
frequent demands upon him, among others one in writing on February 12,
1915, to which Estabaya responded by promising to see Gutierrez at an
early date. On the following day Estabaya went to see Gutierrez and
told him that Gallano had neglected to pay the debt (no hacia caso de pagar la deuda).
Some time thereafter criminal proceedings were instituted against
Estabaya charging him with the crime of estafa, committed with abuse of
his office as justice of the peace, and as a result of these
proceedings Estabaya was convicted of the crime with which he was
charged as denned and penalized in subsection 5 of article 535 of the
Penal Code, read together with subsection 1 of article 534 and article
399 of the same Code.

The facts above set forth, which
leave no room for doubt as to the guilt of the defendant and appellant
of the crime of estafa, are conclusively established by the evidence of
record had in the court below. The defendant Estabaya, testifying in
his own behalf, swore that he never denied at any time that Gallano had
paid over to him the amounts evidenced by the receipts Exhibits B, C,
and D. He claimed that he was always ready and willing to pay over to
Gutierrez the amount received by him from Gallano, but that at the time
when demand was made upon him he did not know and could not remember
the exact amount which had been paid by Gallano, and that he had told
Gutierrez that he would pay him the total amount evidenced by these
receipts if Gutierrez would get the receipts and turn them over to him.
The trial judge very properly referred to the explanation offered by
Estabaya for his failure to turn over the money in his hands to
Gutierrez as a ridiculous excuse which does not merit serious attention.

We
are agreed with the trial judge that the evidence sustains a finding
that Estabaya, when called upon for payment after nearly two years had
elapsed since he had collected the entire amount of the indebtedness,
undertook to deny the payment of the amount thereof by Gallano, and
that if in truth he made demand for the production of the receipts
given by him before making payment, it was done merely to offer a
formal excuse for his failure to do that which he well knew he was
obligated to do, that is to say, to pay over the money collected by him
forthwith. Moreover the lapse of time from the date of the receipt of
the money to
the date of the institution of these proceedings, and
the repeated refusals of the accused to turn the money over to the
complaining witness when demand, was made therefor leaves no room for
doubt in our minds that the accused converted and misappropriated this
money to his own use, and that he did not intend or expect to pay it
over unless compelled to do so by the institution of legal proceedings
for its recovery.

The
trial judge being of opinion that the crime was committed by the
defendant in the exercise of his functions as justice of the peace and
in abuse of his office, sentenced the convict to two months and one day
of arresto mayor, to indemnify the complaining witness
Gutierrez in the sum of P40.17, with subsidiary imprisonment in case of
insolvency and failure to pay the amount of the indebtedness, and, in
addition, to eleven years and one day of inhabilitacion especial temporal (temporary special disqualification).

In
holding that the accused was acting as justice of the peace, and had
taken advantage of his official position in the commission of the
crime, the trial judge relied upon the doctrine announced in the case
of the United States vs. Garcia (R. G. No. 3436 [decided
March 12, 1907, not reported]). In that case, however, the money which
was misappropriated by the justice of the peace was the amount of a
civil judgment rendered in his court, and we held that when the justice
of the peace accepted the amount of the judgment, he was acting in the
exercise of the functions of his office, with an obligation imposed
upon him, by virtue of his office, to pay over the amount received by
him to the person in whose favor judgment had been rendered. In the
case at bar, however, no civil proceedings were instituted for the
recovery of the money in question, and before the agreement was entered
into for the payment of the amount of Gallano’s indebtedness to the
justice of the peace, the criminal proceedings for estafa had been
dismissed. It is clear, therefore, that in entering into the
arrangement by virtue of which Gallano was to pay to the accused in
this case the amount of the admitted indebtedness of Gallano, to be by
him paid over to Gutierrez, the accused was acting as a private
individual and not in the exercise of his functions as justice of the
peace. It may be that the debtor was more punctual in making his
payments to the accused because of the fact that he was justice of the
peace in the community in which he lived; and it may be also that
Gutierrez the more readily entered into the agreement in reliance upon,
the fact that the accused held the responsible position of justice of
the peace; but so far as the accused is concerned, it is clear that he
acted throughout in his individual and not his official capacity.

We
conclude, therefore, that the sentence imposed by the trial judge
should be modified by striking out therefrom so much thereof as imposed
eleven years and one day of temporary special disqualification, and by
substituting three months of arresto mayor for that of two months and
one day of arresto mayor imposed by the trial judge, and thus modified
the judgment entered in the court below convicting and sentencing the
appellant should be affirmed, with the costs of this instance against
him. So ordered.

Torres, Moreland, Trent, and Araullo, JJ., concur.