THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. DOMINGO REYES, DEFENDANT AND APPELLANT.

This is an appeal from a judgment finding Domingo Reyes guilty of estafa and
sentencing him to four months and one day of arresto mayor, to the accessory
penalties of the law, and to indemnify R. B. Blackman in the sum of P118, with
subsidiary imprisonment in case of insolvency, and to pay the costs.

Marked discrepancies in connection with the evidence, particularly that which
concerns the figures, are to be noted. Accepting the findings of the trial
court, we can summarize the facts as follows:

R. B. Blackman is a surveyor in the Province of Pangasinan. Domingo Reyes,
the accused, also lives in that province. Blackman employed Reyes to collect
certain amounts due from twelve individuals for Blackman’s work in connection
with the survey of their lands. The total amount to be collected by Reyes was
P860. He only succeeded in collecting P540. He delivered to Blackman P368. He
retained the balance, or P172. So far so good. The difficult point concerns the
exact terms of the contract. It was merely an oral agreement between Blackman
and Reyes. Blackman claims that he agreed to pay Reyes a commission of 10 per
cent. Reyes claims that he was to receive a commission of 20 per cent. The trial
court, in its decision, states that—”R. B. Blackman, agrimensor, dio al aqui
acusado el encargo de cobrar algunas cuentas de honorarios devengados por
mediciones practicadas por el como agrimensor, concediendole un 10 por ciento
sobre todas las cobranzas.” (R. B. Blackman, the surveyor, ordered the said
accused to collect certain debts due for surveying and offered a 10 per cent
commission on all accounts collected.)

To return to the figures again, it will be noticed that if we accept the
statements of Blackman, Reyes was entitled to 10 per cent of P540 (or P530), or
P54, making P172 misappropriated, or, if we deduct his commission, P118. On the
other hand, if we accept the statements of Reyes, then 20 per cent of the total
amount to be collected, P860, is exactly P172, the amount claimed to have been
misappropriated.

There are a number of reasons which impel us to the conclusion that the
defendant and appellant is guilty as charged. In the first place, in view of the
discrepancy in the evidence we are not disposed to set up our judgment as
superior to that of the trial court. In the second place, conceding that Reyes
was to receive 20 per cent, this, unless some contrary and express stipulation
was included, would not entitle him in advance to 20 per cent of the total to be
collected, but only to 20 per cent of the amount actually collected. In the
third place, the right to receive a commission of either 10 or 20 per cent did
not make Reyes a joint owner with Blackman so as to entitle him to hold out any
sum he chose. (Campbell vs. The State [1878], 35 Ohio St., 70.) In the
fourth place, under the oral contract Reyes was an agent who was bound to pay to
the principal all that he had received by virtue of the agency. (Civil Code,
article 1720; U. S. vs. Kiene [1907], 7 Phil. Rep., 736.) And, lastly,
since for all practical purposes, the agency was terminated, the agent was under
the obligation to turn over to the principal the amount collected, minus his
commission on that amount. (U. S. vs. Schneer [1907], 7 Phil. Rep.,
523.)

All the requisites of estafa as punished by article 535, paragraph 5, of the
Penal Code, and as construed by the commentators, are here present. The
assignment of error relative to the nonproduction by the fiscal of the
transcription of the preliminary investigation is not particularly important as
secondary evidence was admitted and the substantial rights of the accused were
not affected.

The judgment of the trial court being in accord with the facts and the law is
hereby affirmed with the costs. So ordered.

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