THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JUAN AGUAS AND LORENZO SASON, DEFENDANTS AND APPELLANTS.

This is an appeal from a judgment of the Court of First Instance of Pampanga
convicting the accused of the crime of estafa and sentencing them each to four
months and one day of arresto mayor, the accessories provided by law, to
indemnify the complaining witness in the sum of P458.70, with subsidiary
imprisonment in case of insolvency, and to pay the costs of the trial.

It is our opinion that the judgment must be reversed and the accused
acquitted.

It appears from the evidence that Juan Aguas and Lorenzo Sason
went to see Mariano Sunglao, the complaining witness in this case, and asked him
to let them have fish to sell. Arrangements were made by which the two
appellants were permitted to take fish from Sunglao’s fishery at the rate of P16
a basket. The contention of the prosecution is that the fish were delivered to
appellants for sale on commission, they being obliged, therefore, to return
money or the fish. Each Tuesday was set for the day upon which the fish taken up
to that time were to be paid for or delivered. The appellants, on the other
hand, contend that they bought the fish on credit, that they became the owners
thereof, and that there was no contract for sale on commission or for redelivery
of the fish.

It appears that the accused took fish on several occasions and made certain
payments on their indebtedness, reducing it finally to P458.70. The complaining
witness, on the theory that the action of the appellants in refusing to deliver
the money constituted the crime of estafa, laid a complaint before the
prosecuting attorney of the province.

While the evidence of the appellants with respect to the contract is somewhat
ambiguous and part of it may be interpreted in conformity with the contention of
complaining witness, we are, nevertheless, convinced, upon the whole case, that
their contention is proved by the record as a whole. After the parties had
become indebted to the complaining witness in the amount already stated, an
agreement was drawn up between them recognizing the indebtedness and providing
for the time of payment. This agreement, after reciting, the proper facts,
states, in reference to the amount specified therein, that it is “the value of
the fish which we have received from said Don Mariano Sunglao for the purpose of
sale;” and stipulates further as follows: “and we agree, jointly and severally,
to pay to Don Mariano Sunglao the said sum of four hundred and fifty-eight pesos
and seventy centavos in the month of March of the year 1913; that at this time
we have no property with which to pay said sum but, as soon as we obtain the
money or property of any kind, the said Don Mariano Sunglao can oblige us or
either of us to pay the said sum and he may petition the court for the payment
of the same and may levy upon and take our property, etc., * * *.”

As is seen, this agreement contains nothing which would indicate that the
contract with the complaining witness with reference to the fish was different
from what the appellants claim it was; and it lacks every element which the
complaining witness would naturally have put into it if he had had the idea at
the time of its execution that the appellants were guilty of a crime or that he
could hold them criminally for their acts.

There is another piece of evidence in the record, however, which is decisive
of the relations of the parties with reference to the fish in question. The
prosecution offered in evidence during the trial at least a portion of the
preliminary investigation had before the justice of the peace. The record here
on appeal contains all of that investigation; and while it does not appear
definitely from the record that the prosecution offered more than various parts
of it, the record being here and the Government having made no objection to its
presence and none to the consideration thereof by the appellants in their brief
and argument before this court, we must presume that it was all offered and
received and that it can be considered as evidence on the determination of this
appeal. A portion of the preliminary investigation is composed of the testimony
of the complaining witness given before the justice of the peace. In that he
states in so many words that he sold the fish to the appellants or credit. He
said:

“In the month of May, 1911, they (meaning the appellants) came to my house
and asked me to sell them fish on credit. * * * On the representations of
Lorenzo Sason that Juan Aguas was a good man and solvent, I agreed to let them
have my fish on credit at the rate of P”16 a basket.”

There being no claim in this case that the complaining witness was induced to
part with his fish by reason of false representations, we must hold that the
evidence establishes that the fish in question were sold to the appellants on
credit and that they were not responsible to the complaining witness except
civilly.

Nothing herein contained shall be interpreted as depriving the complaining
witness of his right of civil action, if any he have, against the appellants;
and his right to collect the sum due him, if anything, in a civil action is
hereby reserved to him.

The judgment appealed from is reversed and the accused acquitted; costs
de officio.

Arellano, C. J., Torres, Johnson, Carson, Trent, and Araullo,
JJ., concur.