FIRST DIVISION
[G.R. No. 19786. March 31, 1923. ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. CLEMENTE AVILA, Defendant-Appellant.
J. G. Lawrence for Appellant.
Attorney-General Villa-Real for Appellee.
SYLLABUS
1. CRIMINAL LAW; THEFT; APPROPRIATION OF LOST OR MISLAND ARTICLE OF KNOWN OWNERSHIP — When a person who finds a thing that has been lost or mislaid by a known owner takes the thing into his hands, he acquires physical custody only and does not become vested with the legal possession; and in assuming such custody he is charged with the obligation of restoring it to its owner. Appropriation of the thing thus found constitutes theft on the part of the of the finder, if the act of appropriation be done with intent to gain.
2. ID.; ID.; ID.; APPROPRIATION BY PERSON ENTRUSTED WITH CUSTODY. — Where the finder of lost or mislaid property entrusts it to another for delivery to a designated owner, the person to whom it is thus confided assumes by voluntary substitution, as to both the property and its owner, the same relation as was occupied by the finder. In such case appropriation of the thing by the person to whom it is thus confided constitutes theft under the same conditions and upon the same principle as if the appropriation were effected by the actual finder.
2. ID.; ID.; ID.; APPROPRIATION BY PERSON ENTRUSTED WITH CUSTODY. — Where the finder of lost or mislaid property entrusts it to another for delivery to a designated owner, the person to whom it is thus confided assumes by voluntary substitution, as to both the property and its owner, the same relation as was occupied by the finder. In such case appropriation of the thing by the person to whom it is thus confided constitutes theft under the same conditions and upon the same principle as if the appropriation were effected by the actual finder.
D E C I S I O N
STREET, J.:
This appeal has been brought to reverse a judgment of the court of First Instance of the Province of Bulacan, finding the appellant, Clemente Avila, guilty of the offense of theft, and sentencing him to undergo imprisonment for one year, eight months and twenty-one days, presidio correccional, with the accessory penalties prescribed by law, to pay to the injured party, Lucio Pilares, the sum of P4,300 (the value of the unrecovered money and jewels), with subsidiary imprisonment in case of insolvency, and to pay the costs of prosecution.
It appears in evidence that on August 16, 1921, in the municipality of Meycauayan, in the province of Bulacan, Lucio Pilares and his family, composed of his wife, two children and a niece of his wife, took a carretela to go from the house of his father-in-law to his own home in said municipality. Upon said occasion the wife of Lucio Pilares carried, among other things, a large pocketbook, or purse, containing paper money, gold coin, and jewels of total value P4,500. Upon arriving at the house of Lucio Pilares, the family alighted from the vehicle, but the wife of Lucio Pilares inadvertently failed to carry with her the purse containing the valuables, and she left the same in the carretela.
The driver of the carretela was one Tiburcio de los Santos, of the age of 50 years; and after his passengers had alighted, Tiburcio turned to go back, when his attention was attracted by two girls, namely Dolores Orito and Rosario Buning, who were standing on the street in front of their house and who indicated that they wanted to embark in the carretela. Tiburcio accordingly stopped to pick them up, but before they had gotten aboard Tuburcio thought well to clean out or arrange the interior of the carretela. In doing this he saw the purse which had been left in the carretela by the wife of Lucio Pilares, and he accordingly picked it up. As the two girls mentioned claimed aboard the carretela, the accused in this case, Clemente Avila, who was at the time a policeman of the municipality, so got in and as the three passengers were adjusting themselves in their seats, Tiburcio handed the purse to Clemente Avila, and asked him, as a policeman, to deliver it to Lucio Pilares. The accused received the purse and, wrapping it in his raincoat, placed the bundle under his arm.
The said purse it is now to be stated has never come to the hands of Pilares through the person to whom it was thus confided, nor through any other channel; but within a very few hours after the incident above narrated the loss to locate its whereabouts were begun. To this end complaint was made to the police authorities; and the cochero, Tiburcio de los Santos, was arrested. At first he denied any knowledge of the purse, doubtless through fear of becoming implicated himself, but later he admitted that he had picked it up in the carretela after the Pilares got out and that he had turned it over to Clemente Avila, with the request that it should be delivered to its owner. A search warrant was then procured; and armed with this, two officials, one of whom was a lieutenant of the barrio, proceeded to a search of the house of Clemente Avila, on August 23, 1921, or about a week after the incident above narrated occurred.
The result of this search was the finding of a solitaire stone (diamond) and a locket containing the pictures of Lucio Pilares and his wife. These objects were subsequently identified by Lucio Pilares as belonging to himself and wife and constituting part of the contents of the lost purse.
Other objects contained in the purse which have never been recovered were: bank bills in the amount of P1,700; a diamond pin, of the value of P80; two gold rings, with a brilliant, of the value of P450; and other valuables specified in the testimony of Lucio Pilares of the value of Pilares, of the value of P1,350 — all together worth, approximately, P4,300.
In meeting the case thus sketched the efforts of the defense appear to have been chiefly directed towards the creation of a doubt upon the point whether or not the valuables might not have been appropriated by Tiburcio de los Santos, but a perusal of the testimony of the two girls who got into the carretela at the same time as the accused is convincing that the purse was delivered intact to him by Tiburcio, and without knowledge on the part of the latter of the valuable contents contained therein. Nor do we think there is any force in the suggestion that the officers searching the house of the accused may have surreptitiously introduced the objects which were found in or under the dresser.
In the light of the facts appearing of record we think the conclusion is irresistible that the accused appropriated the purse and its contents to his own use, with full knowledge that it was the property of Lucio Pilares.
The principal question presented for consideration is one of law, and it is this; namely, whether the accused, upon the facts stated, was properly convicted of the crime of theft, it being contended that the offense committed, if any, should be declared to be criminal appropriation (estafa) under subsection 5 of article 535 of the penal Code. The determination of this point depends primarily and principally upon the interpretation to be given to the second paragraph of article 517 of the Penal Code; and the concrete question is whether the form of theft there contemplated, i. e., criminal appropriation of found property, can be committed by a person other than the one by whom the property is first found. In other words, is this form of theft limited to the actual finder, using the word in its literal and most limited sense, or does it include misappropriation by any one into whose hands the property may be placed by the actual finder for delivery to the true and known owner? To exhibit this problem in its proper light some discussion is necessary concerning the nature of the particular form theft now under consideration and its relation to other cognate offenses.
Having regard to much that is found in the writings of modern commentators on penal law, it might seem that the offense of misappropriation of property which has been found after being lost by its true and known owner does not fall within the conception of theft in its proper juridical sense at all; and it might therefore at first blush appear that the authors of the Penal Code, in incorporating sub-section 2 of article 517 into the definition of theft, had arbitrarily and erroneously introduced into the law of theft a conception entirely foreign to that offense. This impression is a mistaken one; and we now propose to show that misappropriation by the finder of lost property under the conditions stated in the said subsection is, on historical and jurisprudencial grounds, clearly and undeniably an act of theft.
In the early Roman law we find theft defined by Gaius in terms broad enough to include any kind of physical handling of property belonging to another against the will of the owner; and in this connection we note that term is there made to include misappropriation and misuse by the bailee, a species of offense which in our Penal Code is transferred to subsection 5 of article 535, dealing with estafa. "Furtum autem fit non solum cum quis intercipiendi causa rem alienam amovet, sed generaliter cum quia alienam rem invito domino contrectat. Itaque, sive creditor pignore, sive is apud quem res deposita est, re utatur, sive is qui rem utendam accepit, in alium usum eam transferat quam cujus gratia ei data est, furtum committit." (Gai. iii, 195, 196.)
Substantially the same definition is given by Paulus: "A thief is he who with evil intention handles (touches, moves,) the property of another." Fur est qui dolo malo rem alienam contrectat. In the Institutes of Justinian a more elaborate definition is given as follows: "Theft is the fraudulent handling of a thing with the object of acquiring gain either from the thing itself or from its use, or from possession of it." Furtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessionisve. (Inst. 4, 1, 1.)
The corresponding provision of the Partidas follows in the main the definition given in the Institutes but contains the additional qualification that the taking must be without the consent of the owner. "Furto es malfetria que fazen los omes que toman alguna cosa mueble agena encubierta mente sin plazer de su senor, con intencion de ganar el senorio o la possession o el uso della." (Ley 1.a, Tit. XIV, Part. VII.)
Article 437 of the Spanish Penal Code of 1850 consists of three subsections. Of these the first is identical with the first subsection of the corresponding article of the Penal Code now in force in Spain and the Philippine Islands; the second is noteworthy as placing under theft a form of offense which according to current conceptions is not theft at all but estafa, that is to say, the denial of having received a thing, which has been committed to one’s keeping under circumstances creating an obligation t o deliver or return the same.
"CODIGO DE 1850. — ART. 437. Son reos de hurto:jgc:chanrobles.com.ph
"1.
It appears in evidence that on August 16, 1921, in the municipality of Meycauayan, in the province of Bulacan, Lucio Pilares and his family, composed of his wife, two children and a niece of his wife, took a carretela to go from the house of his father-in-law to his own home in said municipality. Upon said occasion the wife of Lucio Pilares carried, among other things, a large pocketbook, or purse, containing paper money, gold coin, and jewels of total value P4,500. Upon arriving at the house of Lucio Pilares, the family alighted from the vehicle, but the wife of Lucio Pilares inadvertently failed to carry with her the purse containing the valuables, and she left the same in the carretela.
The driver of the carretela was one Tiburcio de los Santos, of the age of 50 years; and after his passengers had alighted, Tiburcio turned to go back, when his attention was attracted by two girls, namely Dolores Orito and Rosario Buning, who were standing on the street in front of their house and who indicated that they wanted to embark in the carretela. Tiburcio accordingly stopped to pick them up, but before they had gotten aboard Tuburcio thought well to clean out or arrange the interior of the carretela. In doing this he saw the purse which had been left in the carretela by the wife of Lucio Pilares, and he accordingly picked it up. As the two girls mentioned claimed aboard the carretela, the accused in this case, Clemente Avila, who was at the time a policeman of the municipality, so got in and as the three passengers were adjusting themselves in their seats, Tiburcio handed the purse to Clemente Avila, and asked him, as a policeman, to deliver it to Lucio Pilares. The accused received the purse and, wrapping it in his raincoat, placed the bundle under his arm.
The said purse it is now to be stated has never come to the hands of Pilares through the person to whom it was thus confided, nor through any other channel; but within a very few hours after the incident above narrated the loss to locate its whereabouts were begun. To this end complaint was made to the police authorities; and the cochero, Tiburcio de los Santos, was arrested. At first he denied any knowledge of the purse, doubtless through fear of becoming implicated himself, but later he admitted that he had picked it up in the carretela after the Pilares got out and that he had turned it over to Clemente Avila, with the request that it should be delivered to its owner. A search warrant was then procured; and armed with this, two officials, one of whom was a lieutenant of the barrio, proceeded to a search of the house of Clemente Avila, on August 23, 1921, or about a week after the incident above narrated occurred.
The result of this search was the finding of a solitaire stone (diamond) and a locket containing the pictures of Lucio Pilares and his wife. These objects were subsequently identified by Lucio Pilares as belonging to himself and wife and constituting part of the contents of the lost purse.
Other objects contained in the purse which have never been recovered were: bank bills in the amount of P1,700; a diamond pin, of the value of P80; two gold rings, with a brilliant, of the value of P450; and other valuables specified in the testimony of Lucio Pilares of the value of Pilares, of the value of P1,350 — all together worth, approximately, P4,300.
In meeting the case thus sketched the efforts of the defense appear to have been chiefly directed towards the creation of a doubt upon the point whether or not the valuables might not have been appropriated by Tiburcio de los Santos, but a perusal of the testimony of the two girls who got into the carretela at the same time as the accused is convincing that the purse was delivered intact to him by Tiburcio, and without knowledge on the part of the latter of the valuable contents contained therein. Nor do we think there is any force in the suggestion that the officers searching the house of the accused may have surreptitiously introduced the objects which were found in or under the dresser.
In the light of the facts appearing of record we think the conclusion is irresistible that the accused appropriated the purse and its contents to his own use, with full knowledge that it was the property of Lucio Pilares.
The principal question presented for consideration is one of law, and it is this; namely, whether the accused, upon the facts stated, was properly convicted of the crime of theft, it being contended that the offense committed, if any, should be declared to be criminal appropriation (estafa) under subsection 5 of article 535 of the penal Code. The determination of this point depends primarily and principally upon the interpretation to be given to the second paragraph of article 517 of the Penal Code; and the concrete question is whether the form of theft there contemplated, i. e., criminal appropriation of found property, can be committed by a person other than the one by whom the property is first found. In other words, is this form of theft limited to the actual finder, using the word in its literal and most limited sense, or does it include misappropriation by any one into whose hands the property may be placed by the actual finder for delivery to the true and known owner? To exhibit this problem in its proper light some discussion is necessary concerning the nature of the particular form theft now under consideration and its relation to other cognate offenses.
Having regard to much that is found in the writings of modern commentators on penal law, it might seem that the offense of misappropriation of property which has been found after being lost by its true and known owner does not fall within the conception of theft in its proper juridical sense at all; and it might therefore at first blush appear that the authors of the Penal Code, in incorporating sub-section 2 of article 517 into the definition of theft, had arbitrarily and erroneously introduced into the law of theft a conception entirely foreign to that offense. This impression is a mistaken one; and we now propose to show that misappropriation by the finder of lost property under the conditions stated in the said subsection is, on historical and jurisprudencial grounds, clearly and undeniably an act of theft.
In the early Roman law we find theft defined by Gaius in terms broad enough to include any kind of physical handling of property belonging to another against the will of the owner; and in this connection we note that term is there made to include misappropriation and misuse by the bailee, a species of offense which in our Penal Code is transferred to subsection 5 of article 535, dealing with estafa. "Furtum autem fit non solum cum quis intercipiendi causa rem alienam amovet, sed generaliter cum quia alienam rem invito domino contrectat. Itaque, sive creditor pignore, sive is apud quem res deposita est, re utatur, sive is qui rem utendam accepit, in alium usum eam transferat quam cujus gratia ei data est, furtum committit." (Gai. iii, 195, 196.)
Substantially the same definition is given by Paulus: "A thief is he who with evil intention handles (touches, moves,) the property of another." Fur est qui dolo malo rem alienam contrectat. In the Institutes of Justinian a more elaborate definition is given as follows: "Theft is the fraudulent handling of a thing with the object of acquiring gain either from the thing itself or from its use, or from possession of it." Furtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessionisve. (Inst. 4, 1, 1.)
The corresponding provision of the Partidas follows in the main the definition given in the Institutes but contains the additional qualification that the taking must be without the consent of the owner. "Furto es malfetria que fazen los omes que toman alguna cosa mueble agena encubierta mente sin plazer de su senor, con intencion de ganar el senorio o la possession o el uso della." (Ley 1.a, Tit. XIV, Part. VII.)
Article 437 of the Spanish Penal Code of 1850 consists of three subsections. Of these the first is identical with the first subsection of the corresponding article of the Penal Code now in force in Spain and the Philippine Islands; the second is noteworthy as placing under theft a form of offense which according to current conceptions is not theft at all but estafa, that is to say, the denial of having received a thing, which has been committed to one’s keeping under circumstances creating an obligation t o deliver or return the same.
"CODIGO DE 1850. — ART. 437. Son reos de hurto:jgc:chanrobles.com.ph
"1.
