THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. RUFINO MANALO Y SANTIAGO AND VALENTIN ATIENZA Y CUYCO, DEFENDANTS. VALENTIN ATIENZA Y CUYCO, APPELLANT.

STATEMENT

In the Court of First Instance of Manila, the following information was filed
against the defendant: “That on or about January 18, 1922, in the City of
Manila, Philippine Islands, the aforesaid accused, being employees of the
registry section of the Bureau of Posts of the Government of the Philippine
Islands, and having had in their possession and under their custody by reason of
their respective positions, a package sent by registered mail from Shanghai,
China, addressed to the Hongkong & Shanghai Banking Corporation of Manila,
conspired and confederated together and assisted each other to take away, as
they did in fact take away, said registered package which contained diamonds
worth P86,000, Philippine currency, which they did willfully, unlawfully and
criminally, and with intent of gain and with grave abuse of confidence, carry
away without the consent of the owner thereof, the Hongkong & Shanghai
Banking Corporation of Manila, which is a corporation duly organized and doing
business in the Philippine Islands, to the great damage of said banking
corporation in the aforesaid sum of P86,000, equivalent to 430,000
pesetas”

The case was called August 22, 1922, at which time the defendant Valentin
Atienza asked for a separate trial, which was granted, and the defendant Manalo
was tried first. At the trial of the defendant Atienza, it was stipulated that
all the evidence against Manalo should be admitted in evidence, except as to the
confession of Manalo, to which he objected.

As a result of the trial, both defendants were found equally guilty, and
Atienza was sentenced to eleven years of prision mayor, with the
accessory penalties and to pay the costs. From this decision he appeals,
assigning six different errors, in which he contends that the court erred in
admitting the confession of the defendant Manalo, known as Exhibit H, and in the
consideration of such exhibit as evidence, and in finding that the defendant’s
actions and conduct were peculiar and suspicious and in considering the
evidence, in finding the defendant guilty of the crime charged, and in not
acquitting him, and as to the penalty which was imposed.

JOHNS, J.:

January 18 and 19, 1922, the defendant Manalo was a clerk in the registry
section of the Bureau of Posts at Manila for the afternoon and night shift of
employees, with the duties, among others, to receive from the clerk in the same
section charged with the duty of opening sacks containing registered packages
and letters of value coming into the section, and to deliver them to the clerk
in charge of that section. On the same dates the defendant Atienza was the clerk
in charge of the same section of the same shift of employees, with the duties to
exercise general supervision over them, to see that all registered packages
addressed to the Postmaster of Manila, the Insular Treasurer and the Philippine
National Bank and other articles of value coming into that section were properly
receipted for and to report immediately any irregularity regarding mail in that
section to the chief of that section, and to see to it that such registered
packages, while in his custody, are properly deposited, for safekeeping, in the
safe provided for said purpose.

January 18, 1922, at about 5 p. m., there were received in the registry
section of the Bureau of Posts several registered packages and letters from
Shanghai. Some twenty-nine of them were received from the opening clerk Gonzales
by the defendant Manalo, who signed a receipt for them. All of these packages
were in turn delivered by Manalo to clerk Manuel Buenaventura, in the same
section, with the exception of one registered package addressed to the Hongkong
& Shanghai Banking Corporation of Manila. This package carries registry No.
6281, and was received in good condition and contained diamonds valued at
P86,962.33, which were insured in the Yangtze Fire Insurance Company for which
Warner Barnes & Company was agent. In the afternoon of January nineteenth
this particular package, opened in one end, was found and picked up in a corner
of the section by Victoriano Arriola, another clerk, who immediately delivered
it to Atienza. At the latter’s request, the former looked for the list, or
Exhibit B, in which the said package, or Exhibit 1-1, was entered. Upon noticing
that the words “received in bad order” did not appear in Exhibit B, Atienza
instructed Manalo to put Exhibit 1-1 in another envelope. Arriola then examined
the package in the presence of Atienza, Manalo and others and found therein ten
small envelopes in good condition. He opened three of them and their contents
were found to be diamonds. After that Manalo requested the opening clerk Juan
Gonzales to write down on Exhibit B the words “received in bad order.” An
examination of Exhibit I-1 disclosed that a portion of its contents to the value
of P27,548.75 was missing and was never found.

As pointed out by the Attorney-General, Exhibit H, known in the record as the
confession of the defendant Manalo, was inadmissible against the defendant
Atienza, without which there is no direct proof to show that Atienza actually
participated in the taking of a portion of the contents of the registered
package No. 6281, consisting of diamonds to the value of P27,548.75. The proof
is conclusive that at about 5 p. m. on January 18, the package in question was
received in good condition by the clerk Juan Gonzales, and that within an hour
it was turned over by him to the defendant Manalo, who receipted therefor by
writing his initials opposite the figures 6281 on Exhibit B. It was the duty of
the defendant, who had charge of the particular section, to exercise general
supervision over the employees of that section, and it was his personal business
to see that registered bills, like Exhibit B, were duly checked, initialed or
signed by the entry clerk Manalo, and in the absence of other evidence, it must
be assumed that he performed his official duty, and that the package in question
came under his personal control and supervision. While it was in his official
custody and control, diamonds to the value of P27,548.75 were taken from and out
of it which were never found. It is contended that Manalo alone committed the
crime. The defendant Atienza at the time of its receipt in the office knew that
the package in question was in his official custody and control. He also knew
that it was receipted for by Manalo, whose duty it was to deliver the package to
him. If Manalo neglected or failed to make the delivery, it was the defendant’s
duty to take the package and place it in the safe for safekeeping provided for
that purpose before leaving the office, but the package was never placed in the
safe that night. As clerk in charge of the registry section, it was the
defendant’s duty to immediately investigate the package, which had been tampered
with and opened at one end, and to report that fact to his superior, which he
failed to do. After Manalo was arrested and before Atienza was arrested, Manalo
went to the Bureau of Posts where Atienza was working, and in Pampango asked him
to put up a bail bond for his release. In response to which Atienza in the same
language said: “As I have already told you before, I have no money yet.” In
answer to which Manalo said: “You have told me that you would sell those
diamonds and you would give me part of the money.” To this Atienza said nothing
and made a gesture or sign, biting his lips, and started to run away towards the
street-car. Both defendants deny that they ever had such conversation. The trial
court who saw and heard the witnesses testify found as a fact that they did.

Under all the authorities flight is considered -as more or less evidence of
guilt, and under the facts here, it should be considered as strong evidence of
Atienza’s guilt. There is no dispute as to the theft, and it is hard to believe
that it could have been committed without the connivance, aid, and assistance of
the defendant. He held an important and responsible position, and it was his
official duty to look after packages of such value and to put them in the
safe.

During the trial of this case Manalo was called as a witness and gave
testimony tending to exonerate the defendant. It is true that Manalo’s
confession was not competent evidence against this defendant, but it is also
true that after Manalo was called as a witness for the defendant, his confession
would then be competent for the purpose of contradicting his testimony.

After a careful consideration of this case, we agree with the
Attorney-General that the defendant is guilty of the crime charged, but that the
penalty for qualified theft should be imposed under article 520, paragraph 2, of
the Penal Code.

The judgment of the lower court on the merits is affirmed, but the sentence
is modified. The defendant is found guilty of the crime of qualified theft under
article 520, paragraph 2, of the Penal Code, and sentenced to suffer the penalty
of prision mayor, in its medium degree, to seven years, four months,
and one day, with the corresponding accessory penalties, and to indemnify the
Yangtze Fire Insurance Company in the sum of P27,548.75, and to pay the costs.
So ordered.

Johnson, Malcolm, Villamor, and Ostrand, JJ., concur.