THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. VALENTIN VELAZCO, DEFENDANT AND APPELLANT.

Valentin Velazco, Guy Bian Ym, Co Banling were charged in the Court of First Instance of Manila with the crime of estafa under the following information:

“That on or about August 23, 1919, in the city of
Manila, P. I., the said accused conspiring conniving with each other
mutually assisting one another swindled the Philippine National Bank in
the following manner: the accused Valentin Velazco, by means of the
false statement fraudulent misrepresentation made on said date at said
place to the Philippine National Bank to the effect that he had
sufficient funds in the Bank of the Philippine Islands, that his
coaccused, the said Guy Bian Ym Co Banling also had sufficient funds in
the International Banking Corporation also of this place, induced the
agents, representatives employees of the Philippine National Bank to
believe said statement to cash the following checks:

Name of the maker.	Number of check.	Date.	Amount.	Bank.
	{A 354870	Aug. 23, 1919	P6,500	}
Valentin Velazco-	{B 354871	—do———–	5,000	}Bank of the Philippine Islands.
	{C 354872	—do———–	5,500	}
	{D56599-D	Aug. 22,1919	5,000	}
Guy Bian Ym—–	{E56598-D	—do———–	4,000	}
	{F56600-D	—do———–	3,000	}
	{G48658-D	Aug. 23,1919	6,200	}International Banking
	{H48659-D	—do———–	5,000	}Corporation.
Co Banling——-	{I 56602-D	—do———–	4,000	}
	{J 56603-D	—do———–	3,800	}

making a total of P48,000, when in reality, as the accused Valentin
Velazco well knew, he did not have any funds in the Bank of the
Philippine Islands with which to pay or cover the amount of the said
three checks issued by him, his two coaccused, the said Guy Bian Ym Co
Banling neither had any funds in the International Banking Corporation
with which to pay or cover the amount of the checks above described;
that in the commission of this offense the other accused Guy Bian Ym Co
Banling directly effectively assisted by means of an act without which
the offense could not have been consummated, that is, with knowledge of
the criminal plans of the accused Valentin Velazco of the fact that
they did not have sufficient funds in the International Banking
Corporation, they subscribed issued the checks against the
International Banking Corporation, in order that the accused Valentin
Velazco might be able fraudulently to negotiate said checks, as was in
fact done, in the Philippine National Bank, in this manner defrauding
injuring the said institution in the said sum of P48,000, equivalent to
240,000 pesetas.”

Before the commencement of the trial, the accused Valentin Velazco
asked for a separate trial, which was granted by the court. The
prosecuting attorney on the other h asked for the dismissal of the
cause as to the accused Guy Bian Ym Co Banling, alleging that the
testimony of said accused was essential necessary to secure the
conviction of the principal defendant, Valentin Velazco, that the
latter was more guilty than his two coaccused. The trial court, in view
of these statements of the prosecuting attorney, dismissed the case
with respect to the accused Guy Bian Ym Co Banling, ordered the trial
to proceed against the present appellant Valentin Velazco, who was
afterwards found guilty of the offense with which he is charged was
sentenced by the trial court to suffer imprisonment for one year, eight
months twenty-one days of presidio correccional to pay the
costs, but without imposing upon him the penalty of indemnifying the
offended party for the reason that the accused Guy Bian Ym Co Banling
paid the amount fraudulently obtained, one month after the filing of
the information.

It appears from the evidence that in the morning of August 23,
1919, Valentin Velazco, upon the pretense that it was necessary for him
to secure the confidence of the National Bank obtain from it a credit
to finance a business which he intended to establish, asked Guy Bian Ym
Co Banling for the three checks (Exhibits K, L, M) issued by him
against the National Bank, representing a total of P31,000, that they
be changed with personal checks of the said Guy Bian Ym Co Banling. The
latter, by reason of their confidence in Velazco, issued several
checks, the first issuing five checks which are Exhibits D, E, F, I, J,
the second, two checks Exhibits G H, that is, in all seven checks
against the International Banking Corporation amounting to a total of
P31,000; but with the warning not to negotiate them until the following
Monday, because they (the two makers) did not have on said day, August
23, 1919, sufficient funds to meet said checks. Valentin Velazco
received the checks but notwithsting the warning made to him by the
makers, on the same morning of August 23, 1919, he deposited in his
current account in the National Bank the five checks of Guy Bian Ym the
two checks of Co Banling together with three checks issued by him
(Velazco) against the Bank of the Philippine Islands (Exhibits A, B, C)
in all ten checks representing a total of P48,000. Due to the
confidence which the employees of the National Bank had in Velazco as
client, the National Bank accepted the said checks credited them in his
current account. On the same morning, August 23, 1919, Valentin Velazco
drew from the National Bank P48,000 by means of the checks drawn by him
attached to the record of this case.

The National Bank presented the checks drawn against the Bank of
the Philippine Islands the International Banking Corporation for
collection, but said checks were refused returned to the National Bank
owing to the lack of funds of the makers.

The facts stated proved in the case were correctly considered by the trial court as constituting the crime of estafa defined penalized in article 535, case No. 1, of the Penal Code.

The appellant imputes two errors as having been committed by the trial court to wit: (a) The error consisting in the order dismissing the case as to the accused Guy Bian Ym Co Banling; (b) that consisting in finding that the accused Valentin Velazco guilty of the offense of estafa with which he is charged.

With respect to the first error, it suffices to say that the power
to dismiss criminal cases is discretionary with the court. What the law
requires is that the dismissal shall be ordered before the accused
commences to introduce evidence, that is, at any time before the
presentation of evidence for the defense, this is just what the court
did. This court in interpreting article 2 of Act No. 2709 in the case
of United States vs. Abanzado (37 Phil., 658, 664, 665), says:

“Examining the terms of these statutory enactments,
it is clear that it was not the intention of the legislator, by the
enactment of Act No. 2709, to deprive the prosecution the state of the
right to make use of accomplices informers as witnesses, but merely to
regulate the exercise of that right by establishing the conditions
under which it may properly be exercised. It is clear, furthermore,
that the legislator intended to rest the manner of the enforcement of
these conditions in the sound judicial discretion of the courts. This
discretion, in the very nature of the things, must, as a general rule,
be exercised prior to the trial, in all cases before the accused have
entered upon their defense. Under the circumstances, it may well be
expected that the court will err at times in its exercise. A trial
judge cannot be expected or required to inform himself with absolute
certainty at the very outset of the trial as to everything which may be
developed in the course of the trial in regard to the guilty
participation of the accused in the commission of the crime charged in
the complaint. If that were practicable or possible there would be
little need for the formality of a trial. He must rely in large part
upon the suggestions the information furnished by the prosecuting
officer in coming to his conclusions as to the ‘necessity for the
testimony of the accused whose discharge is requested;’ as to the
availability or nonavailability of other direct or corroborative
evidence; as to which of the accused is ‘most guilty,’ the like. If he
errs in the exercise of his discretion discharges a guilty person who
should not have been set at liberty, the error, as a general rule,
cannot be cured any more than any other error can be cured which
results in an acquittal of a guilty defendant in a criminal action (U.
S. vs. De Guzman, 30 Phil., 416); but no sound reason has
been suggested in support of a ruling that the commission of such an
error of discretion should have the effect of discharging from criminal
liability the accused persons who were not discharged that they might
be used as witnesses; there is nothing in the law which indicates that
it was the intention of the legislator to provide for their discharge
under such circumstances.”

In view of the evidence presented by the prosecuting attorney, our
opinion is that the trial court correctly ordered the dismissal of the
case with respect to the accused Guy Bian Ym Co Banling.

As to the second error, after a careful review of the evidence
before us, we are of the opinion so hold, that the evidence for the
prosecution establishes the guilt of the accused beyond a reasonable
doubt. Without question the means employed by the appellant to obtain
money from the National Bank was fraudulent, for he very well knew that
the checks which he deposited had no value because through an abuse of
the confidence which the employees of the bank had in him, by means of
false representation, he obtained from that banking institution the
amount fraudulently represented by said checks, air to the injury
prejudice of the National Bank which has been deprived for one month of
the possession use of the amount of which it was swindled. (U. S. vs. Escalante, R. G. No. 13178, decided March 1, 1918, not reported; U. S. vs. Egnia Lim Buanco De los Reyes, 14 Phil., 472; U. S. vs. Berry, 5 Phil., 370; U. S. vs. Valdeo, R. G. No. 8796, decided December 2, 1913, not reported.)

The fact that Guy Bian Ym Co Banling had repaid the amount
embezzled to the National Bank does not affect the criminal
responsibility of the accused Velazco for the crime. The crime was
committed by him for it he is criminally liable. The reimbursement of
the amount embezzled exempts the accused only from civil liability (U.
S. vs. Escalante, supra).

Taking into account the extent of the injury produced by the
offense which, in a certain degree, disturbed the economic life of a
banking institution, we hold it proper, in accordance with article 81,
rule 7 of the Penal Code to impose upon the accused the maximum of the
medium degree of the penalty fixed by article 534, case No. 3 of the
same code, that is, two years, eleven months, ten days of presidio correccional; the judgment, as thus modified, is affirmed with costs against the appellant. So ordered.

Johnson, Araullo, Street, Avancena, JJ., concur.