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SECOND DIVISION

[G.R. No. 7593. March 27, 1914.]


THE

UNITED

STATES, plaintiff-appellee, vs.

JOSE

M.

IGPUARA, defendant-appellant.
W. A. Kincaid, Thos. L. Hartigan and Jose Robles Lahesa for appellant.
Solicitor-General Harvey for appellee.
SYLLABUS
1. "ESTAFA"; MISAPPROPRIATION OF DEPOSIT BY AGENT. The
balance of a commission account remaining in possession of the agent at the
principal's disposal acquires at once the character of a deposit which the
former must return or restore to the latter at any time it is demanded, nor can
he lawfully dispose of it without incurring criminal responsibility for
appropriating or diverting to his own use author's property.
2. ID.; ID. It could only become his as a loan, if so expressly agreed
by its owner, who would then be obligated not to demand it until the expiration
of the legal or stipulated period for a loan.
3. ID.; ID. He undoubtedly commits the crime of estafa who, having
in his possession a certain amount of another's money on deposit at its
owner's disposal, appropriates or diverts it to his own use, with manifest
damage to its owner, for he has not restored it and has so acted willfully and
wrongfully in abuse of the confidence reposed in him.

DECISION

ARELLANO, C. J :
p

The defendant herein is charged with the crime of estafa, for having
swindled Juana Montilla and Eugenio Veraguth out of P2,498 Philippine
currency, which he had taken on deposit from the former to be at the latter's
disposal. The document setting forth the obligation reads:
"We hold at the disposal of Eugenio Veraguth the sum of two thousand
four hundred and ninety-eight pesos P2,498), the balance from Juana
Montilla's sugar. Iloilo, June 26, 1911. Jose Igpuara, for Ramirez & Co."
The Court of First Instance of Iloilo sentenced the defendant to two
years of presidio correccional, to pay Juana Montilla P2,498 Philippine
currency, and in case of insolvency to subsidiary imprisonment at P2.50 per
day, not to exceed one-third of the principal penalty, and the costs.
The defendant appealed, alleging as errors: (1) Holding that the
document executed by him was a certificate of deposit; (2) holding the
existence of a deposit, without precedent transfer or delivery of the P2,498;
and (3) classifying the facts in the case as the crime of estafa.
"A deposit is constituted from the time a person receives a thing
belonging to another with the obligation of keeping and returning it." (Art.
1758, Civil Code.)

That the defendant received P2,498 is a fact proven. The defendant


drew up a document declaring that they remained in his possession, which he
could not have said had he not received them. They remained in his
possession, surely in no other sense than to take care of them, for they
remained has no other purpose. They remained in the defendant's possession
at the disposal of Veraguth; but on August 23 of the same year Veraguth
demanded of him through a notarial instrument restitution of them, and to date
he has not restored them.
The appellant says: "Juana Montilla's agent voluntarily accepted the
sum of P2,498 in an instrument payable on demand, and as no attempt was
made to cash it until August 23, 1911, he could indorse and negotiate it like

any other commercial instrument. There is no doubt that if Veraguth accepted


the receipt for P2,498 it was because at that time he agreed with the
defendant to consider the operation of sale on commission closed, leaving the
collection of said sum until later, which sum remained as a loan payable upon
presentation of the receipt." (Brief, 3 and 4.)
Then, after averring the true facts: (1) That a sales commission was
precedent; (2) that this commission was settled with a balance of P2,498 in
favor of the principal, Juana Montilla; and (3) that this balance remained in the
possession of the defendant, who drew up an instrument payable on demand,
he has drawn two conclusions, both erroneous: One, that the instrument
drawn up in the form of a deposit certificate could be indorsed or negotiated
like any other commercial instrument; and the other, that the sum of P2,498
remained in defendant's possession as a loan.
It is erroneous to assert that the certificate of deposit in question is
negotiable like any other commercial instrument; First, because every
commercial instruments payable to order are negotiable. Hence, this
instrument not being to order but to bearer, it is not negotiable.
It is also erroneous to assert that the sum of money set forth in said
certificate is, according to it, in the defendant's possession as a loan. In a loan
the lender transmits to the borrower the use of the thing lent, while in a deposit
the use of the thing is not transmitted, but merely possession for its custody or
safe-keeping.
In order that the depositary may use or dispose of the things deposited,
the depositor's consent is required, and then:
"The rights and obligations of the depositary and of the depositor
shall cease, and the rules and provisions applicable to commercial
loans, commission, or contract which took the place of the deposit shall
be observed." (Art. 309, Code of Commerce.)

The defendant has shown no authorization whatsoever or the consent


of the depositary for using or disposing of the P2,498, which the certificate

acknowledges, or any contract entered into with the depositor to convert the
deposit into a loan, commission, or other contract.
That demand was not made for restitution of the sum deposited, which
could have been claimed on the same or the next day after the certificate was
signed, does not operate against the depositor, or signify anything except the
intention not to press it. Failure to claim at once or delay for some time in
demanding restitution of the thing deposited, which was immediately due,
does not imply such permission to use the thing deposited as would convert
the deposit into a loan.
Article 408 of the Code of Commerce of 1829, previous to the one now
in force, provided:
"The depositary of an amount of money cannot use the amount,
and if he makes use of it, he shall be responsible for all damages that
may accrue and shall respond to the depositor for the legal interest on
the amount."

Whereupon the commentators say:


"In this case the deposit becomes in fact a loan, as a just
punishment imposed upon him who abuses the sacred nature of a
deposit and as a means of preventing the desire of gain from leading him
into speculations that may be disastrous to the depositor, who is much
better secured while the deposit exists that when he only has a personal
action for recovery.
"Accordingly to article 548, No. 5, of the Penal Code, those who to
the prejudice of another appropriate or abstract for their own use money,
goods, or other personal property which they may have received as a
deposit, on commission, or for administration, or for any other purpose
which produces the obligation of delivering it or returning it, and deny
having received it, shall suffer the penalty of the preceding article," which
punished such act as the crime of estafa. The corresponding article of
the Penal Code of the Philippine is 535, No. 5.

In a decision of an appeal, September 28, 1895, the principle was laid


down that: "Since he commits the crime ofestafa under article 548 of the Penal
Code of Spain who to another's detriment appropriates to himself or abstracts
money or goods received on commission for delivery, the court rightly applied
this article to the appellant, who, to the manifest detriment of the owner or
owners of the securities, since he has not restored them, willfully and
wrongfully disposed of them by appropriating them to himself or at least
diverting them from the purpose to which he was charged to devote them."
It is unquestionable that in no sense did the P2,498 which he willfully
and wrongfully disposed of to the detriment of his principal, Juana Montilla,
and of the depositor, Eugenio Veraguth, belong to the defendant.
Likewise erroneous is the construction apparently attempted to be given
to two decisions of this Supreme Court (U. S. vs. Dominguez, 2 Phil. Rep.,
580, and U. S. vs. Morales and Morco, 15 Phil. Rep., 236) as implying that
what constitutesestafa is not the disposal of money deposited, but denial of
having received same. In the first of said cases there was no evidence that the
defendant had appropriated the grain deposited in his possession.
"On the contrary, it is entirely probable that, after the departure of
the defendant from Libmanan on September 20, 1898, two days after the
uprising of the civil guard in Nueva Caceres, the rice was seized by the
revolutionists and appropriated to their own uses."

In this connection it was held that failure to return the thing deposited
was not sufficient, but that it was necessary to prove that the depositary had
appropriated it to himself or diverted the deposit to his own or another's
benefit. He was accused of refusing to restore, and it was held that the code
does not penalize refusal to restore but denial of having received. So much for
the crime of omission; now with reference to the crime of commission, it was
not held in that decision that appropriation or diversion of the thing deposited
would not constitute the crime of estafa.
In the second of said decisions, the accused "kept none of the proceeds
of the sales. Those, such as they were, he turned over the owner;" and there

being no proof of the appropriation, the agent could not be found guilty of the
crime ofestafa.
Being in accord with law and the merits of the case, the judgment
appealed from is affirmed, with costs.
Torres, Johnson and Trent, JJ., concur.
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(United States v. Igpuara, G.R. No. 7593, [March 27, 1914], 27 PHIL 619-624)

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