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[ GR Nos. 7450, Sep 18, 1912 ]



23 Phil. 189

[ G. R. Nos. 7450, 7461, 7452, September 18, 1912 ]




These cases come before us on appeal from  the Court of First Instance of the First Judicial  District.  Appellant was charged with three separate crimes of estafa in three separate actions, tried and found guilty in each case and sentenced in each of the first and second to four months and in the third to six months of  arresto mayor.  He was also condemned  to indemnify  the  offended  parties, to temporary special disqualification for the  period  of ten years and one day and to  pay the costs of the causes.  By agreement the      three cases were tried together in the court below and also in this court.

The facts are these:

The appellant shortly after entering upon his duties as councilman of the  town of Aparri, Province of Cagayan, gave, in  the month of October, 1910,  directions to his subordinates that the  death of all  large animals must be  reported by the owners to him as  councilman.  These orders were conveyed to the people as  directed.  Damaso Rabilas ]ost one carabao, Bonifacio Rante one, Santiago Rante two, and Felipe Rante one (those of Santiago and Felipe were included in the same complaint).   The respective owners of these animals reported their death to the appellant.   Upon the receipt of this information the appellant informed these owners that they must pay a fine of P5  for each animal, these fees to be turned  into the  municipality by him. The owners, believing that the municipality had provided for the payment of such fines,  turned  over  to the appellant five pesos for each animal that died.  There was no  provision whatever made by the municipality or any other entity for the imposition of such fines.  These facts clearly constitute the crime of estafa as defined and penalized in paragraph 1, article 535, in relation with paragraphs 1, article 534, Penal Code.

Appellant insists that the trial court erred (1) in finding that there were present in the commission of these crimes the aggravating circumstances numbers 10, 11, and 18 of article 10  of the Penal Code;  and  (2)  in imposing the penalty set  forth in article 399  of said code.   These provisions read: 

"Art.  10. The following are aggravating circumstances:

*       *       *      *       *      *       *

"10.  That the act be committed with abuse of confidence. 

"11.  That  advantage  be taken  by the offender of his public position.

*      *       *      *       *      *       *

"18.  That the accused is a recidivist.

"Art. 399. Any public officer who, taking advantage of his official position, shall commit any of the crimes enumerated in chapter 4 of section 2 of title 13 of this book shall, in addition to the penalties therein prescribed, suffer a penalty ranging from temporary special disqualification in its maximum degree to perpetual special disqualification."

We agree  with counsel that there were not present the aggravating circumstances mentioned in numbers 10 and 18, supra, because there is nothing to show that the crimes were committed with abuse of confidence.  There  were no confidential relations between the appellant and the injured parties.  The mere  fact  that  people had reposed in the appellant sufficient confidence to elect him to a public office does not constitute the aggravating circumstance set forth in number  10.  In order to constitute this circumstance the confidence between the parties must be immediate and personal and such as would give  the accused person some advantage or make it easier for him to  commit  the criminal act.

These three cases were tried together in the court below. The judgments in all three of these cases were rendered at the same time; in fact, the three judgments are contained in the same  paragraph  and were pronounced  at the same time.  A recidivist is one who at the time of  his  trial for one crime shall have been convicted by final judgment of another crime embraced in the same title of the Penal Code. At the time the trial court held that the accused was twice a recidivist there was no  final judgment against him.  In fact, the judgments  imposed could  not have become final until after  the expiration  of fifteen days and  this only in the event that an appeal was not taken.  So it  is clear that the aggravating circumstance mentioned in number 18 was not present.

It is insisted that the appellant in committing these crimes did not take advantage of his  public position or office.  In this we cannot agree with counsel.  The fact that the appellant was councilman at the time placed him in a position to commit these crimes.  If he had not  been councilman he  could not have induced the injured parties to pay these alleged fines.  It was on account of his being councilman that the  parties believed that he had  the right to collect fines and  it was for this reason that they made the payments. It is true  that he had no right to either impose or collect any fines whatsoever.   It is also true that a municipal councilman is not an official  designated by law to collect public fines.  But these facts do not  destroy or disprove the important fact that the accused did by taking advantage of his public position deceive  and defraud the injured parties out of the money which they paid him.  This holding is not in conflict with the doctrine enunciated in the case of United States vs. Casin (8 Phil. Rep., 589).  In that case Casin and Calleja, the offended party, lived in the same house.  Calleja gave to Casin two pesos for the purpose of buying her  a cedula in  order that she might institute a civil action in the courts. Casin received the  money  promising to  buy the cedula. He neither purchased  the cedula nor returned the money but converted it to his  own use.   The fact that he was a councilman did not have anything to do with his receiving the two pesos. He acted  purely  in  his  private capacity.   Consequently, he  did  not in  any manner  take advantage of his public position.

It is also insisted that it was  error to take into consideration the aggravating circumstance number 11 and also  impose the penalty provided in  article 399.  The aggravating circumstance number 11 was found to be present and  was taken into consideration for  the purpose of increasing  the penalty which the  law says must be imposed.  The  disqualification mentioned  in article 399 is a part of the penalty to be imposed.  This penalty is never imposed as an aggravating circumstance because from the very nature of the penalty it cannot be so considered.

There being present  one aggravating circumstance  and no extenuating circumstances in the commission of these crimes, the penalty should be imposed in each case in its maximum  degree, which is four months  of arresto  mayor.

In the first and second  cases the penalties imposed are in accordance with the law; in  the third the court erred  in imposing six mpnths instead of four.  This penalty is, therefore, reduced to four  months.   In all other respects the judgments appealed from are affirmed, with costs against the appellant.  So ordered.

Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.