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EN BANC

G.R. No. L-48169         December 28, 1942

MANUEL S. CONCEPCION, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent.

Quintin Paredes and Cortes and Reyes for petitioner.
Assistant-Solicitor-General Amparo and Solicitor Guerrero for respondent.

BOCOBO, J.:

1. CRIMINAL LAW; "ESTAFA" UNDER ARTICLE 315, PARAGRAPH 1 ( b) OF THE REVISED PENAL CODE; LACK OF POSITIVE FINDING OF MISAPPROPRIATION OR CONVERSATION. - Appellant, a civil engineer, gratuitously offered his services to direct and administer the construction of the house of his niece, the herein complainant. For this purpose, he actually received from the latter the amount of P753.54 for the purchase of materials and the wages of laborers. Of this amount, he spent only P39.55 for materials and nothing for labor. In the light of these facts, Held: That appellant is not guilty of estafa under the cited article, for the essence of this crime is the act of misappropriating or converting to the prejudice of another, money, goods or other personal property, and the decision of the Court of Appeals did not make any clear and positive finding that the appellant had actually misappropriated or converted the amount involved. A careful reading of said decision fails to show such unmistakable finding. The fact that appellant, at the time of the trial, had spent only P39.55 for materials and that he had not then paid the laborers does not in itself prove that he had misappropriated or converted the rest of the sum.chanroblesvirtualawlibrary chanrobles virtual law library

2. ID.; ID.; DUTY OF COURTS IN CASES OF OBLIGATIONS WITHOUT ANY FIXED PERIOD. - It appears in the decision of the Court of Appeals that the parties did not fix a definite period within which the appellant was to complete the construction of the house, although they intended some period. In keeping with article 1128 of the Civil Code, it has been held that if the parties intended a period but did not specify it, the fulfillment of the obligor until after the demanded from the obligor until after the courts have fixed the period for compliance therewith, such period has arrived. The Court of Appeals not having fixed the period, as it should have done, and as it does not appear in the decision of said court when the amount of P39.55 was paid by appellant, when he failed to pay the laborers, and how much time had elapsed between the receipt of the money by appellant and the paralyzation of the work, it is extremely difficult to conclude that appellant unreasonably delayed the work. But even supposing that there was delay in the construction and in the payment for material and labor, this fact does not per se constitute misappropriation and conversion.