THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. DEOGRACIAS PANES, DEFENDANT AND APPELLANT.

This is an appeal from a judgment of the Court of First Instance of Iloilo,
finding the accused guilty of the crime of estafa, and sentencing him
to two months and one day of arresto mayor, and to pay the costs.

The appellant makes the following assignment of errors: (1) The trial court
erred in convicting the accused without informing him of the nature of the
complaint before entering upon the trial. (2) The trial court erred in declaring
that the facts constitute the crime of estafa.

All that it is necessary to say in regard to the first assignment of error is
that the record shows that the accused was duly arraigned; that a copy of the
information was delivered to him; and that he pleaded not guilty. Consideration
of the second assignment of error requires a synopsis of the proven facts.

B. F. Hodges is a pawnbroker in Iloilo. On August 23, 1915, Hodges delivered
to the accused, Deogracias Panes, jewelry of a total value of P130. Panes signed
a receipt, Exhibit A, which reads as follows:

“Iloilo, Iloilo, P. I., 8/23/15.

“The undersigned has received of B. F. Hodges 2 rings, 8 pure, 4 each, small,
diamonds, valued at P100—One hundred pesos, and one necklace and wristlet valued
at P30—thirty pesos, total P130—one hundred and thirty pesos, to sell on
commission or return on demand or the stated amount to B. F. Hodges, or order.
Cedula No. F-1352891. (Signed) Deogracias Panes. Witness: Eugenio Linot.”

Hodges also claims that, in addition, there was a verbal agreement to the
effect that Panes was to sell the jewelry or return it within fifteen days. As
this statement of Hodges is not otherwise corroborated and is denied by the
defendant, we can eliminate it from consideration. However, Hodges did demand
the return of the jewelry many times with the result that Panes gave into the
possession of Hodges a document covering land, which Panes said he owned, worth
P3,000. Hodges also had a friend write a letter in Spanish to the accused
(Exhibit C), telling Panes that he must either return the jewelry or the value
thereof. The accused Panes in defense admitted receiving the jewelry and signing
Exhibit A. He testified that he sold the jewelry to a man in Passi, who signed a
note in Panes’ favor to be paid some time later. Panes said that he told Hodges
of this sale on credit and that Hodges agreed to it. Hodges, however, denies
absolutely that he authorized the accused to sell this jewelry on credit. We
should, therefore, as to this claim, likewise eliminate it from consideration.
On the day before the trial in the lower court, the accused returned the same
wristlet he had received from Hodges and presented a note signed by Juan de Leon
in payment of the rest of the jewelry that the defendant did not return.

It is to be emphasized that in accordance with the receipt for the jewelry,
the authenticity of which is not questioned, the accused received the jewelry to
sell on commission or to return on demand. to Hodges. Further, we should
emphasize that notwithstanding the plain meaning of this document, Panes
repeatedly failed to return the jewelry on demand, and apparently construing the
document for his own purposes, after the passage of a long interval of time,
sold the jewelry to another on credit. It would seem that, soon after the first
demand for the return of the jewelry was made and no attention was paid to the
same, the accused must be held to have converted the property to his own use,
and consequently was liable before the law. To appropriate to one’s own use
includes not only conversion
to one’s personal advantage but every attempt to
dispose of the property of another without right. (See 9 R. C. L., pp.
1275, 1276.) The fact that, on threat of criminal prosecution, Panes actually
did make restitution to Hodges and the latter proclaimed himself satisfied, only
affects the penal aspect of the case as to the right of the offended party to
indemnification.

The Attorney-General recommends acquittal. He does so on the authority of The
United States vs. Morales and Morco ([1910] 15 Phil., 236). In this
case, it appears that the defendants received from one Hatin Cafure to sell on
commission certain jewels of the value of something more than P1,000. In
receiving the said articles, the defendants gave to Cafure a receipt in the
following form:

“Received of Mr, Atim Kapuri goods taken on commission which amount to
P1,384.10 on account of him who subscribes.

“Legaspi, 14th of March, 1905.

(Signed) “Nicomedes Morales.”

The evidence produced by the prosecution was that the defendants took the
property in question upon the terms and conditions mentioned in the receipt
above quoted andthat they failed to return either the jewelry or the value
thereof, but instead sold the said jewelry on credit and took promissory notes
from the purchasers for the purchase price. Thereupon, after an extensive review
of the cases on the subject, this court through Justice Moreland, Justice Torres
dissenting, held that—

“The crime of estafa is not committed by one who, havingtaken
jewelry to sell on commission for cash, sells the same on credit, and who,
taking promissory notes for the purchase price thereof, tenders said notes to
the owner of the jewelry. Such sale on credit does not constitute a con- version
of the property.

“The intent to convert the property to the use of the taker or to that of
some other person is a necessary element in the crime of estafa as
defined in article 535, subdivision 5, Penal Code.” (Syllabus).

We are confident, on a new and fair consideration of the doctrines enunciated
in the Morales case, that the opinion in the Morales case went to the farthest
extreme which can be permitted in an endeavor to give to an accused every
possible benefit of the law. We believe, further, even under a liberal
construction of the Morales opinion, that it cannot properly be stretched to
cover the present facts. We consider, finally, that the facts in-the Morales
case and in the present instance can be fairly distinguished. For instance,
comparing the two receipts, the bases of the two complaints, it is to be noted
that the receipt herein contains one additional safeguard for the owner not to
be found in the receipt in the Morales case—this condition is that the jewelry
is to be returned on demand to B. F. Hodges. It is also to be noted that Hodges
denies categorically that he authorized the sale of the jewels on credit or that
he had ever received the notes for such sale.

A case likewise nearly analogous and containing, we believe, the applicable
doctrine is The United States vs. Zamora ([1902] 2 Phil., 582). To
quote from the opinion of Justice Cooper:

“The evidence in the case shows that on the 10th day of July, 1910, the
defendant received from the complaining witness the jewelry mentioned in the
complaint, for sale on commission, and though repeatedly requested by the owner
to return the same, failed so to do. These facts are proven by the complaining
witness and Juliana Espinosa.

“It is contended for the defense that no time was fixed within which
defendant was to make sale of or return the property. It was proven that it is
the custom, when jewelry is taken out for sale, that if taken in the morning it
is to be returned in the evening, or at least within two or three days.
Independent of any such custom, and in the absence of any time fixed for its
return, it was the duty of the party so receiving it to return it upon the
demand of the owner.

“The complaining witness testified that upon several occasions she demanded
of the defendant the return of the jewelry; that the defendant failed to comply,
on each occasion asking for two or three days longer, and up to the date of the
trial, which was over one year from the date of the delivery of the property, he
had failed to make a return of the jewelry or ta give any account thereof.

“We think the evidence in this respect entirely sufficient to show the
conversion of the property by the defendant to his own use.”

In the opinion in the case of The United States rs. Morales and Morco,
supra, the above quotation appears with the words “which was over one
year from the date of the delivery of the property” (referring to the demand),
“or to give any account thereof,” in italics. In the present instance, although
one year did not elapse from the date of the delivery of the property to the
date of the trial, we do not conceive that it is to be understood that merely
the lapse of a long period of time changes the penal aspect of the case.
Numerous demands for the return of the property are just as efficacious in
indicating unlawful conversion as the passing of a year. As to the account given
constituting a proper defense, it must, of course, depend on the nature of the
account, and’ herein the explanation is not such as to constitute a reasonable
proviso to the original receipt.

With full knowledge of the difficulty in attempting to distinguish the facts
before us from the facts of other decisions of this court, and with all due
respect for the recommendation of the Attorney-General, we are nevertheless
constrained to hold that the accused is guilty of the crime of estafa, and that
the judgment of the lower court should be affirmed. We accordingly make the
statement contained in the last sentence the order of this court, with the costs
of this instance against the appellant. So ordered.

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