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[ GR No. 7770, Sep 28, 1912 ]



23 Phil. 207

[ G.R. No. 7770, September 28, 1912 ]




This defendant was charged  with the crime of estafa. The complaint alleged: 

"That on or before  August 1, 1911, in the city of Manila, Philippine Islands,  the  said accused was acting as agent for the West  Coast  Life Insurance Company of San Francisco,  California, a corporation duly  authorized to do business  in  the Philippine Islands, and  as such agent of the West Coast Life Insurance Company of San Francisco, California, the said accused did on or before August  1, 1911, receive policy No. 7476, for Estanislao  Labucay in  the sum of  P6,000, with an annual premium of P504,  Philippine currency, with the obligation of delivering said policy to the said Estanislao  Labucay upon payment by  said Estanislao Labucay of  the sum of P504 as  premium, and of turning over to said West  Coast Life  Insurance Company of  San Francisco, California,  at its office in Manila, the said premium of P504,  Philippine currency, and that the said accused did at  said time and place  deliver the policy and did  then  collect  from  said  Estanislao  Labucay  the annual premium of  P504, Philippine currency, but did at said time and place fail to deliver and make report to said West  Coast Life Insurance Company  of San  Francisco, California, at its office in Manila, Philippine Islands, regarding said sum of P504,  Philippine currency, but that he did willfully,  fraudulently, unlawfully and criminally appropriate, misapply and  divert to his  own private use and benefit the said sum of P504, Philippine currency, to  the  damage and detriment of said  West Coast Life Insurance Company  of  San Francisco, California, in the said sum of P504, Philippine currency, equivalent to 2,520 pesetas."

After hearing the evidence, the Honorable A. S. Crossfield, judge, found that the evidence showed, beyond a reasonable doubt, that the defendant was guilty of the crime of estafa of P327.60, and sentenced him to be imprisoned for a period of five months of arresto mayor, and to pay the costs.

From that sentence the defendant appealed  and  made the following assignments of error in this court:

First. That  the complaint does not state facts sufficient to constitute a public offense.

Second.  That the court has no jurisdiction over the offense charged in the complaint.

Third. That the court's findings of fact are contrary to the weight of the evidence.

Fourth.  That the conclusions and the decision of the court are not justified by the evidence or the  court's  findings of fact.

With reference  to the first assignment of error, it may be said, that an examination of  the record fails to disclose that the defendant made any objection whatever to the sufficiency of the complaint in the court below.  In the absence of such objection,  this  court will not consider that question when presented for the first time here.  When no objection is made to the sufficiency of the complaint in the lower court, the objection will  not be considered on appeal.  (U. S. vs. Mabanag, 1 Phil. Rep., 441; U. S. vs. Cajayon, 2 Phil.  Rep., 570; U. S. vs.  Mack, 4,Phil. Rep., 291;  U. S. vs. Sarabia, 4 Phil. Rep., 566; Mortiga vs. Serra et al,, 5 Phil. Rep., 34; (See also 204 U. S., 470, and 11  Phil. Rep., 762); U. S. vs. Paraiso, 5  Phil. Rep., 149;  (See also case  of  Paraiso, 207 U. S., 368); (See also  11 Phil. Rep., 799); U.  S. vs. Aldos, 6 Phil,  Rep.,  381; U.  S. vs. Eusebio, 8 Phil. Rep.,  574; U. S. vs. Flores, 9 Phil. Rep., 47, 48;  U. S. vs. Lampano, 13 Phil. Rep., 409.)

With  reference to the second assignment of error, to wit, that.the court had no jurisdiction over the offense charged in the complaint,  the appellant alleges that no par| of the crime was committed in the city of Manila.  It was argued by the appellant that the estafa charged in the complaint was committed in the city of Cebu, which is outside of the jurisdiction of the court.  The appellant,  however,  overlooks the fact that the  contract of the defendant with the offended party was executed at Manila,  and provides that the defendant,  under his  obligation to the offended party, should render his accounts to the offended party in the city of Manila.  It is true that the defendant collected the money which he misappropriated in the city of Cebu, but under his contract he was  bound to account for such money to his principal (the offended party) in the city  of Manila, and failing so to do, the crime of  estafa was properly charged as having been committed  in Manila, which place was within the jurisdiction of. the trial court.

In the case of the State  of Ohio vs. Bailey (50 Ohio State Reports, 636), it appears from the evidence adduced during the trial of the cause, that  a contract of employment was made in one county, by which the accused was authorized to canvass for and sell his employer's goods  in another county, and to account therefor in the county where  the contract was made, either by letter or in person.  At the request of the defendant and under  the  terms of the contract, merchandise was sent to him by his employer, from the cpunty where the contract  was  made  to the  county where he (defendant) was actually  operating, and  where he received and sold such merchandise.  After the defendant had sold the goods he wrote a false account of the  transaction to his employer, addressed said letter to his employer in the county where the contract was made, which letter he mailed on the railroad  train while  absconding. The letter was received by  the employer in the  county  where  the contract  was made.  The supreme court of Ohio held that the defendant might be indicted  and tried in the county  where the contract was made.   (See also Ex Parte Hedley, 31 Cal., 108; Brown vs. State, 23 Texas Appeals, 214  (1887),  4 S. W. Reporter, 588.)

In the  case before us the contract  of  employment was made in the city of Manila; it was the duty of the defendant to account there either by letter or in  person.   His failure to comply with his promise or obligation to the  offended party therefore took place in the city of Manila, within the jurisdiction of the trial court.

The  foregoing  doctrine  was  recognized  by  this court, although the question was not specifically discussed, in the cases of U. S. vs,  Ongtengco  (4 Phil. Rep., 144), and U. S. vs. Jockers (7 Phil. Rep., 464).

Our conclusion is that the lower court has jurisdiction over the offense charged in the complaint.

With reference to the third  and fourth assignments of error, it may be said that an examination of the  evidence adduced during the trial of the cause, shows beyond a reasonable doubt, that the defendant committed the crime described in the complaint in the manner and form therein alleged, and without a more detailed discussion of the evidence  adduced during the trial of the cause, we are of the opinion  that the sentence of the lower court is  fully sustained by  the evidence and the law.

It will be noted that the sentence, of  the lower court was that the defendant should be imprisoned for a period of five months of arresto mayor and to pay the costs of the action.  The lower court evidently  overlooked some of the requirements of  law.   The  defendant should  have been required to  return the amount of money appropriated to his own use (the sum of P327.60) or to indemnify the offended party in that amount, and he  should  also have been sentenced with the accessory penalty provided for in article 61 of the  Penal Code.  Therefore the sentence of the lower court is hereby modified and it is hereby  ordered  that the defendant be sentenced to be imprisoned for a period of five months of arresto mayor, to  return to the offended party the sum of P327.60 or to1 indemnify him in that  amount, with the accessory penalty  provided for  in  article  61 of the Penal Code, and to pay the costs, and  in  case of insolvency  to suffer subsidiary imprisonment  for the  amount of  money appropriated to his own use.   So ordered.

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