G.R. No. L-16961           September 19, 1921
THE UNITED STATES, plaintiff-appellee,
vs.
NIEVES DE VERA Y GAYTE, defendant and appellant.
Antonio Gonzalez for appellant.
Acting Attorney-General Tuason for appellee.

VILLAMOR, J.:

The appellant was tried in the Court of First Instance of Manila under the following information:

The undersigned accuses Nieves de Vera y Gayte and John Doe (the latter name is fictitious, his true name being unknown) of the crime of theft committed as follows:

That on or about the 20th day of February, 1920, in the city of Manila, Philippine Islands, the said accused conspiring and confederating and cooperating with each other, did willfully, unlawfully and criminally and through craft, take and carry away, with intent of gain and without the consent of the owner, a gold bar weighing 559.7 grams and worth P587.68, and P200 in bank notes of different denominations, to the damage and prejudice of Pepe (Igorot), owner of the bar and money aforementioned, in the total sum of P787.68, Philippine currency, equivalent to 3,938.4 pesetas.

Contrary to law.

After the proper proceeding, the trial court found the accused guilty of the crime of theft and defined and punished in article 518, paragraph 2, of the Penal Code, without any circumstance modifying the liability, and sentenced her to eight months and twenty-one days of prison correccional, to indemnify the offended party in the sum of P201,20, to suffer subsidiary imprisonment in case of insolvency, and to pay costs.

From the record it appears that on the 20th of February, 1920, three Igorots named Jose II, Balatan, and Pepe were on the Escolta, of this city, trying to dispose of a bar of gold when an Ilocano invited them to go to his house, stating that there was a woman there who would buy the precious metal. they accompanied the Ilocano to the house indicated by him where they met a woman, the accused herein, who apparently, was desirous of buying the gold and requested them to hand it to her so that she might take it to a silversmith and have it examined, stating that she would return within a short time to report the result. The Igorot Pepe, who was the owner of the bar of gold, thereupon handed it to her, together with P200 in bank notes which her requested to her to have changed into silver coins were more desirable in the Mountain Province. The woman then left the house at about 12 o'clock on that day, asking the Igorots to wait there. But the woman did not return. They waited in vain for hours for her and at nightfall they agreed that one of them should remain on watch while the other two went to the Meisic police station to report the matter. The police acted promptly and effectively. The policeman Jose Gonzales, assigned to take charge of the case, soon identified the woman who had taken away the bar of gold, by the description which the Igorots had given him, and at a few minutes after 11 o'clock he already was in a house on Calle Barcelona, examining the accused as to the whereabout of the bar of gold and the bank notes of the Igorots. As the woman gave evasive answers, it became necessary to ask for assistance from the office of the police, and shortly thereafter, two other policemen, Mr. Abbot and one Ronas, arrived, who took the woman to the house at No. 541 Calle Regidor, followed by Gonzales and the three Igorots. There the bar of gold divided into three pieces was found wrapped in a handkerchief and placed inside the water tank of a water-closet. The accused requested one Mamerta de la Rosa to let her have P150 which she in turn handed to the policeman.

According to Exhibit B, which is a certificate issued by the Bureau of Science, the bar of gold delivered to the accused weighed 559.7 grammes and was worth P587.68 at the rate of P1.05 per gramme; whereas, the three bars found by the police weighed only 416 grammes, and were therefore, 143.7 grammes short. Of the P200 bank notes delivered to the accused, she returned only P150.

In view of the above stated facts, which appear in the cause to have been duly proven, the accused was sentenced by the court a quo to the penalty already mentioned.

Counsel for the accused contends, that as the evidence does not establish the essential elements of theft, the crime charged in the information, but those of the crime of estafa, the judgment appealed from should be reversed. Counsel for the prosecution holds that the evidence adduced during the trial of the case show that the accused is guilty of the crime of estafa, and as she cannot be convicted for this crime for the reason that the information upon which she was arraigned was for the crime of theft, the essential elements of which are different from those of estafa, he recommends the remanding of the case to the court of origin for proper proceeding in accordance with law.

The argument advanced in support of the contention of the defense is that the goods misappropriated were not taken by the accused without the consent of the owner who had delivered them to her voluntarily, and this element being lacking, it cannot be the crime of theft.

It is well to remember the essential elements of the crime of theft, as expounded in the textbooks, which are as follows: First, the taking of personal property, second, that the property belongs to another; third, that the taking away be done with intent of gain; fourth, that the taking away be done without consent of the owner; and fifth, that the taking away be accomplished without violence or intimidation against persons or force upon things.

The commentators on the Spanish Penal Code, from which ours was adopted, lay great stress on the first element which is the taking away, that is, getting possession, laying hold of the thing, so that, as Viada says if, the things is not taken away, but received and then appropriated or converted without the consent of the owner, it may be any other crime, that of estafa for instance, but in no way that of theft, which consists in the taking away of the thing, that is, in removing it from the place where it is kept by the legal owner, without the latter's consent, of the legitimate owner.

Viada (vol. 3, p. 426, 4th ed.) presents the following question which he himself solves:

In the case of the sale of goods which are usually tried, measured, or weighed; such as, wine, oil, wheat, etc., if, after the sale, but before the measuring or weighing, a part of the goods covered by the contract is taken by the purchaser, does he commit the crime of theft defined and punished in this article?

While it is true that the purchase and sale is perfected from the moment that the contracting parties agree on the goods to be sold, and the price, the title being thereupon transferred to the purchaser, yet there is an exception to this rule, and that is the case where the goods sold are the kind which are usually tried, measured, or weighed. (Law 24, Tit. V, Part 5.) In this case, as the goods are not sold in bulk, but by the weight or measurement, the sale is not perfected, since the risk or deterioration of the goods is not shifted to the buyer until it is measured or weighed; in leaving the risk of the goods sold to the vendor until said operation is completed, applying the maxim res perit domino, it was evidently the intention of the legislator that until then the transfer of the ownership was not effected: it is true that there exists a promise which binds the vendor, and which, if broken, would give the purchaser the right to demand delivery of the goods upon payment of its price, after the same had been measured or weighed, or to claim indemnity for damages; but it also true that until the goods sold are delivered, no definite change of ownership takes place, and the sale is not so to speak finally perfected; and for this same reason, where after the sale, but prior to the measuring or weighing, the purchaser takes away fraudulently, that is, with intent of gain, a part of the goods covered by the contract, this, is evidently , theft, with all its essential elements, as it cannot be reasonably argued that the purchaser has taken what is his own. In the French decisions the question has been solved in the same way, the reasons above set forth having taken as the basis therefor. (See Decision of the Court of Cessation, rendered March 24, 1860.)

In discussing one of the elements of the crime of the theft, that is, the intent of the offender to gain by the things appropriated, Groizard (vol. 6, pp. 263 and 264) says:

The fraudulent character of the appropriation is well determined by the requirement that the act be prompted by the intent of gain, and that the things appropriated be another's property. Hence the necessity of resorting in many cases to the provisions of the civil law to enable one to conclude, by closely investigating in whom the ownership is vested, whether or not the crime of theft has been committed. The contract of purchase and sale, for instance, is perfected as between the vendor and the vendee and is binding on both of them, when they come to an agreement as to the thing and the price. But the ownership passes from the vendor to the vendee only when the thing is delivered. If before this takes place the purchaser converts the whole or a part of the thing sold, he must be dealt with as guilty of theft, notwithstanding his undeniable right to demand and obtain the carrying out of the contract. On the other hand, if the owner of a thing is in the lawfull possession of another, take it away with or without employing violence, intimidation or force, will commit neither robbery nor theft, although he may, and must be criminally responsible for another kind of offense "Rei nostrae furtum facere non possumus."

Adopting the same point of view of the two cited authors, let us suppose that A, a farmer in the Province of Bulacan, agrees to sell B a certain quantity of rice at a certain price per picul. A ships several sacks of the grain which B receives in his warehouse. If, prior to the measuring required before the payment of the agreed price, B takes a certain quantity of rice from the different sacks, there can be no doubt that he is guilty of the crime of theft. Now, it may be asked: Did not B receive the sacks of rice shipped to him by A? — Yes. And did A voluntarily deliver the sacks for rice he owned by shipping them to B? — Yes. Was the taking of the rice by B from the different sacks done with A's consent? — No.

This shows, to our mind, that the theory of the defense is untenable, according to which, when the things is received and then appropriated or converted to one's own use without the consent of the owner, the crime committed is not that of theft.

So far, as we have been able to find, there is in the Spanish decisions a case decided by the supreme court of Spain which support our opinion. Viada presents this case in Question No. XXXI. (Vol. 3, p. 433, 4th ed.)

Is the shepherd, who takes away and converts to his own use several head of the cattle under his care, guilty of the crime of estafa, within case No. 5, of article 548, or of theft, defined and punished in article 533, No. 2, of the Code? — The Supreme Court has decide that it was this latter and more serious crime that was committed: "Considering that the crime of theft is committed when one, with intent of gain, and without using violence or intimidation against persons, or force upon things, takes away personal property of another without the owner's consent; and in the present case Manuel Diaz Castilla undoubtedly committed the crime defined, for, with intent of gain, he took away two bucks and a female goat, against the will of his master, the owner of the said cattle, which were under his care as shepherd: Considering that, in holding that the crime committed was that of theft and not of estafa, as claimed by the appellant, ignorant of the true elements which constitute the latter crime, the lower court did not commit any error of law, nor violate any legal provision, as contended by defendant's counsel in support of this appeal." (Decision rendered June 23, 1886, published in the Gazette of September 16, p. 189.)

In the above cited case, did the shepherd receive the cattle which were under his care? — Undoubtedly. Were the cattle voluntarily delivered by the owner to the shepherd? — It is to be presumed. Did the shepherd have the consent of the owner when he took away some of the cattle and converted them to his own use? — No. In this case of the shepherd, as in the example given, the crime committed was that of theft, notwithstanding the fact that the thing was misappropriated had been delivered voluntarily by the owner to the supposed he, who disposes of it without the owner's consent. And this is so because the delivery of the cattle to the shepherd does not have the effect of transferring the judicial possession of, or title to, the cattle thus delivered, just as the delivery of the rice does not have such effect, the possession of, and title to, the thing to be presumed to remain in the vendor, until the sale is completely consummated.

The American decisions an textbooks on "larceny," a crime which has the same characteristics as those oaf theft under our Penal Code, contain abundant illustrations of the question raised in the present case.

The intention of the owner to part with his property is the gist and essence of the offense of theft (larceny), and the vital point on which the crime hinges and is to be determined.

A felonious taking necessary in the crime of larceny, and generally speaking, a taking which is done with the consent or acquiescence of the owner of the property is not felonious. But is the owner parts with the possession thereof for a particular purpose, and the person who receives the possession avowedly for that purpose has the fraudulent intention to make use of it as the means of converting it to his own use, and does so convert it, this is larceny, for in such case, the fraud supplies the place of the trespass in the taking, or, as otherwise stated, the subsequent felonious conversion of the property by the alleged thief will relate back and make the taking and conversion larceny. And it has been said that the act goes farther than the consent, and may be fairly said to be against it. If money is given to a person to be applied to a particular purpose, it is larceny for the receiver to appropriate it to his own use which was not the purpose contemplated by the owner. Obtaining money under the false pretense that it is to be bet on a horse race, and with the intent at the time to convert it to the bailee's own use, the race being a mere sham to aid this purpose, is larceny. The rule has been applied also to cases in which a person takes a piece of money from another to change, and keeps it with the unlawful intent to convert it and refuses to deliver the money given to him or the change therefore, on demand; and the fact that the taking was open and from the owner is of no consequence, if the intent to steal existed. This is so for the reason that the delivery of money to another for the sole purpose of getting it changed is a parting with the custody only and not the amount does not relieve him from liability for the larceny of the entire amount given him.

Where the parties are engaged in a cash sale the whole transaction is incomplete until the payment is completed; and the possession of the goods remains in the seller and that of the money in the buyer, until they are simultaneously exchanged. If, in such case, the buyer gets control of the goods and makes off with them without paying for them, he is guilty of larceny. And conversely if the seller gets the money and refuses to give up the goods, it is larceny. Thus, where one surrenders up his watch with the understanding that he is immediately to receive 50 dollars for it, the keeping of the watch without payment of money is larceny. (chamberlain vs. State, 25 Tex, App., 398; 8 S. W., 474.) and where a tradesman handed good to a customer to examine and the latter ran away with them, he was held guilty of larceny. (Rex vs. Chissers, T. Raym., 275.) Similarly, where one unloaded onions which he owned on the premises of a prospective buyer, who thereupon refused to pay for the onions or to allow the seller to remove them, it was held larceny, as the owner never intended to part with the possession of the onions until he received his money therefor. (Reg. vs. Slowly, 12 Cox C. C., 269; 27 L. T. Rep., N. S., 803). One, waiting in crowd to purchase a railway ticket, requested another nearer the ticket office to buy a ticket for her, handing him the money to pay for it. He made off with money and was held guilty of larceny. (Reg. vs Thompson, 9 Cox C. C., 244; 8 Jur., N. S., 1184, L. and C., 225; 32 L. J. M. C., 53; 7 L. T. Rep., N. S., 432; 11 Wkly. Rep., 40: 25 Cyclopedia of Law and Procedure, pp. 25 and 26.)

For the foregoing reasons, we are of the opinion, and so hold, that the crime proven in the cause to have been committed by the appellant by appropriating the gold bar delivered to her for examination, and by converting to her own use, without the consent of the owner, the bank notes which had been handed her to be exchanged for silver coins, is that of theft, defined and punished in article 518, paragraph 2, of the Penal Code. And the appealed judgment being in accordance with law, it must be, as is hereby, affirmed with costs against the appellant. So ordered.

Johnson, Araullo, Street and Avanceña, JJ., concur.