FIRST
DIVISION
THE UNITED STATES,
Plaintiff-Appellee,
G.
R.
No. L-3332
July
18,
1907 -versus-
HARRY B.
MULFORD,
Defendant-Appellant.
D E C I S I
O N
JOHNSON, J :
On the 26th day of June,
1905, the following complaint was presented against the defendant,
charging
him with the crime of estafa:
"That on or about the
25th day of April, 1905, in the City of Manila, P.I., the said Harry B.
Mulford, ordinarily known as H.B. Mulford, did then and there,
willfully,
unlawfully, feloniously, and with intent of gain, appropriate,
misapply,
and convert to his own use, one thousand dollars ($1,000), United
States
currency, the property of El Banco Americano, ordinarily known as The
American
Bank, a corporation duly organized and registered under the laws of the
Philippine Islands on September 6, 1901, and existing and doing a
general
banking business in said city of Manila ever since said date, which
said
sum of one thousand dollars [$1,000] was then and there received by and
in the care, custody, control, and possession of the said Harry B.
Mulford
as cashier and manager of said corporation and bank for management,
investment,
and administration as a part of the funds of the said Banco Americano
under
the duty and obligation on the part of the said defendant, Harry B.
Mulford,
to deliver and return the same to the said Banco Americano; all to the
damage and prejudice of the said Banco Americano, and C.M. Jenkins,
then
and there a creditor and depositor of said bank, and numerous other
creditors
and depositors of said bank, in the sum of one thousand dollars
[$1,000],
United States currency, which sum is the equivalent of the equal in
value
to the sum of ten thousand [10,000] pesetas; that the said Harry B.
Mulford
was then and there cashier and manager of said corporation and bank,
and
has been such cashier and manager at all times since its foundation and
organization aforesaid; that the said defendant, Harry B. Mulford, then
and there covered up and concealed the said appropriation,
misapplication,
a and conversion of the said sum of one thousand dollars [$1,000],
United
States currency, by means of fictitious, fraudulent, and false entries
in the account books of the said Banco Americano made by him from time
to time during the time he was manager and cashier as aforesaid, and by
means of a certain fictitious, false, and fraudulent promissory note
for
one thousand dollars [$1,000], bearing date of April 25, 1905, and
purporting
to have been executed to the said Banco Americano by Go Chinco and Sy
Pa,
but in truth and in fact made and fabricated by the said defendant
without
authority, payable ninety days after date and bearing the number 1896
in
said bank, so as to make it impossible to ascertain and determined
whether
the said one thousand dollars ($1,000), United States currency, was
appropriated,
misapplied, and converted by the said Harry B. Mulford on the said 25th
day of April, 1905, or at some time or times prior to the said 25th day
of April, 1905, during the existence and lifetime of the basis Banco
Americano,
and therein and thereby making it impossible to determine the specific
pieces of money converted and misappropriated as aforesaid; that the
said
defendant had at all times and does still refuse to account for, pay
over,
and deliver to the said Banco Americano the said sum of one thousand
dollars
($1,000), United States currency, or any part thereof.
"Signed and sworn to
by J.L. Barrett."
After hearing the evidence
adduced during the trial of said cause, the lower court found the
defendant
guilty of the crime of estafa and sentenced him to be imprisoned for a
period of two years of presidio correccional, with the
accessories
of article 58 of the Penal Code and to return to the Insular Treasury
the
sum of $1,000, United States currency, the amount "estafada,"
and
to suffer, in case of insolvency, subsidiary imprisonment, which was
not
to exceed one-third part of the principal penalty, and to pay the costs.
From this sentence,
the defendant appealed to this Court, and made the following assignment
of errors:
1. That the judgment
and sentence of the said Court of First Instance was contrary to law.
2. That the judgment
and sentence of the said Court of First Instance was contrary to
evidence.
After a careful
consideration
of the evidence adduced during the trial of the lower court, we find
the
following facts to be true:
(1) That the
American
Bank was a corporation duly organized and registered under the laws of
the Philippine Islands on the 6th day of September, 1901, and existed
and
did a general banking business in the city of Manila from said date
until
the 8th day of May, 1905.
(2) That the said
defendant,
Harry B. Mulford, was cashier and manager of the said banking
corporation
from the date of its organization until the said 8th day of May, 1905,
when the affairs and business of said corporation were taken control of
the Insular Treasurer of the Philippine Islands, under and by virtue of
an order of the Governor-General of the Philippine Islands, in
conformity
with the provisions of Act No. 556 of the Philippine Commission.
(3) That as cashier
of said bank, the said Harry B. Mulford, under the by-laws of said
banking
corporation, "had the entire active management of the business of the
corporation,
etc., with power to perform all the duties usually performed by such
officer,
together with such other duties as the board of directors might
designated,"
and as such cashier had control, custody, and possession of the funds
and
deposits of said banking corporation.
(4) That on the
said
18th day of May, 1905, when the Insular Treasurer took possession of
the
funds and assets of said banking corporation, he found there thirty-six
promissory notes, amounting to the sum of $36,500, United States
currency,
which notes were carried upon the books of said company by the said
Mulford
as a part of the assets of said banking corporation; that the note
bearing
date of April 25, 1905, purported to have been executed to the said
banking
corporation by Go Chinco and Sy Pa; that the said thirty-six promissory
notes were signed by sixty-nine persons, including the said Go Chinco
and
Sy Pan; that after repeated efforts on the part of the said Insular
Treasurer,
none of the sixty-nine signers of the said notes, including Go Chinco
and
Sy Pa, could be found within the city of Manila nor within the
Philippine
Archipelago; that the said Insular Treasurer used every means possible
for the purpose of ascertaining the whereabouts of the persons whose
names
appear signed to the said promissory notes.
(5) That according
to the records of said banking corporation the promissory note
described
in the complaint and numbered 1896 had been executed and delivered to
the
bank on the 27th day of October, 19904, and renewed two different times
thereafter, to wit, on the 25th day of January, 1905, and again upon
the
25th day of April, 1905.
(6) That according
to the records of said banking corporation, the actual cash funds of
said
bank had been reduced in an amount equal to the said promissory note
described
in the above complaint, thereby showing that some person had actually
taken
out of the assets of said bank $1,000, United States currency, on a
date
corresponding to the date of the said promissory note.
(7) That the said
banking
corporation had received from stockholders and depositors, from time to
time, large sums of money and had on deposit and under the control and
in the possession of the said defendant these sums of money, holding
and
managing the same as representative of the said banking corporation and
in trust for the said depositors.
(8) That the
defendant,
Harry B. Mulford, as cashier and manager of said banking corporation,
and
being in control and possession of the funds and assets of said
corporation,
did appropriate, misapply, and convert to his own use the sum of
$1,000,
United States currency, by means of fictitious, fraudulent, and false
entries
in the books of said banking corporation, which entries were made by
him
from time to time as cashier and manager of said corporation, and by
means
of a certain fictitious, false, and fraudulent promissory note executed
by himself, signing the names thereto of Go Chinco and Sy Pa,
representing
thereby that Go Chinco and Sy Pa were legitimate debtors of said bank,
whereas and in fact the persons Go Chinco and Sy Pa, if such persons
exist
at all, never did sign the promissory note described in the complaint,
nor give their consent that the said defendant should sign their names
to the said promissory note.
(9)
That the said
defendant,
Harry B. Mulford, although he has been requested to return the said
$1,000,
United States currency, to the possession of said banking corporation
and
to the custody of the Insular Treasurer of the Philippine Islands, has
continually refused so to do, and that by such fraudulent
misappropriate
of the funds of said banking corporation and the depositors therein,
and
his refusal to return the said funds, he has thereby injured said
banking
corporation and said depositors to an amount equal to the said
promissory
note.
From all of the
foregoing
facts, We are of the opinion, and so hold, that the defendant, Harry B.
Mulford, did fraudulently misappropriate and apply to his own use the
sum
of $1,000, United States currency, which he had under his control and
in
his possession belonging to the American Bank and the depositors of
said
bank, and that by reason of said fraudulent misappropriation of said
sum,
the said bank and depositors have suffered a loss and damage to that
extent.
There
were neither
extenuating nor aggravating circumstances connected with the commission
of the offense; the defendant therefore must be punished in the medium
degree of presidio correccional in accordance with Paragraph 5 of
Article
535, in its relation with Paragraph 3 of Article 534 of the Penal Code.
Paragraph 3 of Article 534 provides that, if the amount defrauded shall
exceed 6,250 pesetas, the person shall be punished with the penalty of
presidio correccional in its minimum and medium degrees. One thousand
dollars
gold is equivalent to 10,000 pesetas. Inasmuch as the penalty imposed
by
Paragraph 3 of Article 534 is composed of two degrees, we must apply
Article
82 of the Penal Code. Applying this article, the medium degree of the
penalty
provided for by said Paragraph 3 would be one year eight months and
twenty-one
days to two years eleven months and ten days.
It is
Our opinion that
by reason of the peculiar trust and confidential relations which
existed
between the defendant, by virtue of his position as cashier and manager
of said banking corporation, and his relations to the said bank and its
depositors, that he should suffer the maximum penalty of the medium
degree;
therefore, it is the judgment of this Court that the sentence of the
lower
court be reversed and that the defendant should be imprisoned for a
period
of two years eleven months and ten days of presidio correccional,
with the accessory penalties of Article 58 of the Penal Code and to pay
the sum of $1,000, United States currency, to the Insular Treasurer, in
trust for the said American Bank and its creditors, and in case of
insolvency
to suffer subsidiary imprisonment, which shall not exceed the one-third
part of the principal penalty, and to pay the costs. So ordered.
Arellano, C.J.,
Torres, Willard, and Tracey, JJ., concur. |