THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ISAAC DOMINGUEZ, DEFENDANT AND APPELLANT.

“That on or about the 19th day of January, 1920, in the city of Manila,
Philippine Islands, the said accused who was a salesman at the
Philippine Education Co., Inc. did then and there receive the sum of
seven pesos and fifty centavos (P7.50) from one Lamberto Garcia as
payment for five copies of Sams’ ‘Practical Business Letters’ bought
from the store of the said company, which amount should have been
turned over and delivered by him (accused) to the company’s cashier or
his authorized representative therein; that instead of delivering the
said amount to the said cashier or his representative therein, which he
knew it was his obligation to do, the said accused did then and there
willfully, unlawfully and criminally misappropriate and convert it to
his own personal use to the damage and prejudice of the said Philippine
Education Co., Inc. in the sum of seven pesos and fifty centavos
(P7.50) equivalent to 37 1/2 pesetas.”

At the close of the trial the court found the accused guilty of the crime of estafa of the sum of P7.50 and sentenced him to be imprisoned for two months and one day of arresto mayor, with the accesories provided by law, and costs.

Appeal having been taken to this Supreme Court, the counsel for the
accused assigns, as error committed by the court, its finding that the
accused is guilty of the crime charged and its action in imposing upon
him the penalty corresponding to a principal in the crime of estafa.

It is proved that the accused, as salesman of the bookstore
“Philippine Education Co., Inc.” sold on the morning of January 19,
1920, five copies of Sams’ “Practical Business Letters,” of the value
of seven pesos and fifty centavos (P7.50), which the accused should
have immediately delivered to the cashier but which he did not deliver,
until after it was discovered that he had sold the books and received
their value without delivering it to the cashier, as was his duty.

The accused alleges that he did not deliver the money immediately
after the sale, because the cash boys were very busy as well as the
cashier, while he had to go to the toilet for some necessity, and upon
coming out, the cashier caught him by the arm and asked him for the
money, and then he delivered the sum of P7.50 to him; and that it was
not his intention to make use of said money. Such claim, nevertheless,
does not exempt him from the criminal responsibility which he had
incurred, for the evidence before us shows clearly that he attempted to
defraud the “Philippine Education Co., Inc.” Upon being asked for the
money, he first said that a woman, whom he did not know, bought books,
without having paid, for the reason that she was, according to herself,
in a hurry; and, later, he went out of the store to talk to a friend
who was employed in the Pacific Mail Steamship Co. to tell him that if
anyone should ask him if he (the employee of the Pacific Mail Steamship
Co.) bought books that morning in the store of the “Philippine
Education Company” he should answer affirmatively. Furthermore, he had
also declared to the manager of the bookstore that he used part of the
money in purchasing postage stamps.

There can be no doubt as to the injury which the accused would have
caused to the interests of the company in retaining for himself the
proceeds of the sale in question. But the question of law to be decided
is whether the fact that the accused retained in his possession the
proceeds of the sale, delivering them to the cashier only after the
deceit had been discovered, constitutes a consummated offense or merely
a frustrated offense of estafa.

Should the fact that the accused attempted to get certain bundles
of merchandise at the station, by means of the presentation of the tag
sent to the consignee in a letter which must have been taken from the
mail, it not having been proven by whom or how it came to the accused,
who did not attain their object, because the bundles had been withdrawn
two or three days before by the consignee, be considered as an
attempted or frustrated offense? The supreme court of Spain in its
decision of January 3, 1876, in deciding the appeal taken by the
accused, who alleged that the act constituted only an attempt and not a
frustrated estafa, declared that the appeal was not well
taken, on the ground that the offense is frustrated when the accused
performs all the acts of execution which would have produced the crime,
and, nevertheless, do not produce it by reason of causes independent of
the will of the actor, and that in said case the appellant, together
with his coaccused attempted to take possession of the two bundles
which they believed were at the station, by going there and presenting
the tag, and they did not succeed because these bundles had already
been taken, which constitutes the frustrated crime.

In his commentaries on the Penal Code Viada asks the following
question: “Is immediate return by the accused of the thing he intended
to convert, as soon as the injured party found out the fraud committed,
sufficient to divest the act of its consummated character and to place
it within the limits of a mere frustrated offense?” “The religious
society of Santa Clara deposited, in the year 1868, with D. Manuel
Nunez an oil painting on copper, but when they demanded it a few years
afterwards, the latter delivered to them the same frame but with merely
a copy of the original painting, which, upon his order, a painter had
made for the sum of 40 pesetas. The substitution having been afterwards
noted, the society protested and Nunez returned the original, valued at
125 pesetas, and in turn obtained the copy referred to. But, in the
meantime a criminal action having been instituted upon this fact and
prosecuted to trial, the Madrid court, holding that Nunez had defrauded
and injured the society in the amount of the difference in the value of
the paintings, sentenced him, as principal in the consummated crime of estafa, defined in number 5 of article 548 of the Code, to the penalty of two months and one day of arresto mayor,
together with the accessories, and costs. An appeal having been taken
from said judgment, on the ground that it violated among others,
article 3 of the Code, the Supreme Court, declaring that the appeal was
well taken, held that the estafa committed was mere frustrated estafa,
‘Considering that while the acts of D. Manuel Nunez appear to have been
actuated by the desire to convert the painting to his own use and the
consequent injury of its owner, and that to that end he performed all
the acts which should produce the crime as a consequence, nevertheless,
the injury and the appropriation were not realized, and therefore the
crime was not consummated because of a cause independent of his will,
which was the discovery of the substitution of the plate, after which
the owner obtained what belonged to him without the objection of the
depositary and without any delay juridically appreciable— therefore,
the trial court in holding as consummated an offense that was
frustrated, violated, in failing to apply it, article 3 of the Code.’ ”
(1 Viada, 65.)

The same author puts and solves the following question:

“Where a person appointed Commissioner to make
collection of debts due to the public treasury for real estate taxes
owing by a mining company goes to a store and exacts of the owner
thereof a certain sum in order that he might not file a complaint by
virtue of which the owner might have to pay a big fine because the
establishment was not registered in the corresponding class, and the
owner pays him part of the sum demanded, but he is in the act caught by
agents of the authority who were detailed for the purpose, is he guilty
of the consummated or simply frustrated crime of estafa? The
criminal branch of the court of Seville found him guilty of the former
and sentenced him to the penalty of two months and one day of arresto mayor. But, appeal having been taken from the judgment on the ground that the fact constituted only an attempt to commit estafa,
the Supreme Court, while not of the same opinion, however, held that
the crime committed was merely frustrated: ‘Considering that while the
acts executed by the appellant should be qualified, not merely as an
attempt, as claimed by the appellant, inasmuch as he did not limit
himself to commencing the acts of execution of the crime, but as a
frustrated crime, because the accused performed all the acts of
execution which should produce the crime as a result, such as the
obtaining of the money exacted, in this manner apparently realizing his
object, but which acts nevertheless did not produce the crime by reason
of a cause independent of his will, which cause in this case was the
appearance of agents of the authority at the place, as a consequence of
the complaint filed by Da. Candelaria Polanco to the treasury deputy, a
fact which prevented the consummation of the crime prosecuted, which
would have consisted in completely divesting the owner of his money, a
result prevented by the vigilance of the authorities: Considering that
in not so holding the trial court erred on a point of law, as claimed,
and violated the articles of the Penal Code to which the appeal refers,
etc., etc.’ ” (Viada, Suppl. 1887-1889, p. 8.)

Applying the doctrine, established by the supreme court of Spain in
the decisions cited, to the case at bar, we are of the opinion, and so
hold, that the appellant is guilty of the frustrated offense of estafa
of 37 1/2 pesetas, inasmuch as he performed all the acts of execution
which should produce the crime as a consequence, but which, by reason
of causes independent of his will, did not produce, it, no appreciable
damage having been caused to the offended party, such damage being one
of the essential elements of the crime, due to the timely discovery of
the acts prosecuted.

From what has been said, it results that the judgment appealed from
should, as it is hereby, modified, and the accused is sentenced to pay
a fine of 325 pesetas, with subsidiary imprisonment in case of
insolvency, and to pay the costs of the trial. So ordered.

Mapa, C. J., Araullo, Street, and Malcolm, JJ., concur.