Case Digest: People v. Yusay, G.R. No. L-26957 September 2, 1927

                                   Rule 120: Judgment, Discharge | Criminal Procedure

Facts:

Simeon Yusay appealed a judgment convicting him of theft and sentencing him to one year, eight months, and twenty-one days (1-8-21) of imprisonment.

The prosecution presented evidence that Yusay took two pawn tickets belonging to Leonor Gil de Lazaro without her consent. The servant of Gil de Lazaro, Remigia Mediavilla, was entrusted the tickets and left them to Yusay unintentionally.

Yusay met Mediavilla at a store, noticed the tickets in her purse, and took them from her.

Yusay falsely claimed to be the owner of the pawned jewels and redeemed them without presenting the tickets, using only their numbers.

Gil de Lazaro discovered the theft when she tried to redeem the jewels herself.

When confronted, Yusay refused to return the tickets and instead offered to help Mediavilla escape punishment and offered her a share of the proceeds.

Issue:

WoN Yusay should be convicted of estafa (fraud) instead of theft. (YES)

Ruling:

ART. 517. The following are guilty of theft:

1. Any person who, with intent to gain, but without the use of violence or intimidation against any person or the use of force upon anything, shall take anything which is the personal property of another without the latter's consent.

According to Viada, there are five essential elements which constitute the crime of theft, namely: 

(1) Taking of personal property; 

(2) that said property belongs to another; 

(3) that said taking be done with intent to gain; 

(4) that, further, it be done without the owners consent; and 

(5) finally, that it be accomplished without the use of violence or intimidation against persons, nor of force upon things.

Article 535, case No. 1 of the same Code is of the following tenor:

The penalties prescribed by the next preceding article shall be imposed upon:

1. Any person who shall defraud another by the use of any fictitious name, or by falsely pretending to possess any power, influence, qualification, property, credit, agency, or business, or by means of any similar deceit other than those hereinafter enumerated.

The estafa provided for and penalized in this article consists of profiting to the damage of another, employing fraudulent means with abuse of his confidence. These means consist in 

(1) the use of a fictitious name or

(2) in pretending to possess power, influence, or other qualities which one does not possess, or 

(3) to make a false showing of property, credit, commission, enterprise or imaginary negotiations, or 

(4) to make use of any other similar deceit not expressed in the following number of article.

(3 Viada, 486; decision of the Supreme Court of Spain of November 17, 1886.)

Let us now see whether the facts found come under either of the two legal provisions above quoted, or under both of them.

In the first place, we have the taking of the pawn tickets without the consent of the servant who had them, nor of the owner thereof. The accused took said ticket with intent to gain, inasmuch as he promised the servant a share, and he knew that since the tickets were payable to bearer, — for they did not bear the name of the owner — they were negotiable and the holder would be considered as the owner thereof and also of the jewels which they covered, and to which effect he sent word to real owner, when he learned that the latter was going to file a complaint against him.

The taking of the pawn tickets by the accused-appellant without the consent of the owner, with intent to gain, without violence or intimidation against persons, or force upon things, by itself constitutes the crime of theft as provided for in article 517, case No. 1, of the Penal Code, above cited. In other words, the taking alone of the psychological circumstances already expressed, was sufficient for the consummation of the crime of theft.

But the accused — appellant went further, — pretending that he was the owner of the pawned jewels, and without making use of the corresponding pawn tickets other than their respective numbers, he succeeded in redeeming them through the identification of his person.

There can be no doubt that the accused-appellant deceived the pawnshop in order to redeem the jewels, as, if he had not pretended to the owner of the same and had not had himself identified, while he, himself, identified the jewels by the numbers of the pawn tickets, he could not have made the redemption. Of course mere deceit is not sufficient to constitute estafa as provided for in case No. 1, of article 535 of the Penal Code; it is also essential that there be defraudation or damage. In the present case, the pawnshop was obliged to return the jewels to Leonor Gil de Lazaro, when the latter presented herself to redeem them, otherwise, it would have to pay the value which constitutes a damage.

The redemption then, of the jewels in question, made by the accused- appellant through deceit consisting in having pretended to be the owner of the jewels and with damage to the pawnshop, constitutes the crime of estafa as provided for in case No. 1 of article 535 of the Penal Code.

In the present case, as we have said, the accused-appellant did not have to redeem the pawned jewels by presenting the stolen pawn tickets in order to gain by the theft, since, as said tickets were payable to bearer, he could have sold them and thus profited by the sale. The fact that Simeon Yusay preferred to redeem the jewels rather than to sell the pawn tickets, does not change the nature and juridical aspect of his act of taking the tickets, which, surrounded as it is, by all the essential psychological circumstances, has all the characteristics of the crime of theft. This is so certain that even had he not redeemed the jewels, he would still have been liable for theft. But when he made use of the pawn tickets numbers in order to obtain, by deceit and with damage to the pawnshop, the redemption of the aforementioned jewels, he converted the theft of the tickets into a necessary means to commit estafa, because without the numbers of the stolen pawn tickets, he could not have identified the jewels and, consequently, would not have been able to redeem them.

Briefly, then we find that when Simeon Yusay took possession of the pawn tickets in question, which were issued to bearer, with intent to gain and without the consent of the servant who had them, nor of their owner, and without using force, violence or intimidation, he committed the crime of theft defined in article 517, case No. 1, of the Penal Code; when he succeeded in redeeming the pawned jewels, claiming to be the owner thereof, to the damage of the pawnshop, he committed the crime of estafa provided for in article 535, case No. 1, of the same Code; and in making use of the numbers of the stolen tickets without presenting them, in order to identify the jewels, he converted the theft into a necessary means to commit the estafa.

The accused, then, committed the crimes of theft and estafa, the former being a necessary means for the commission of the latter.

Let us now see whether the accused-appellant may be convicted, under the information herein, of both crimes of theft and estafa, or either of them.

In the information filed, Simeon Yusay is charged with having stolen and taken possession, with intent to gain, of two pairs of gold earrings set with diamonds, valued at P600, belonging to Leonor Gil de Lazaro, without her consent.

The facts proven show that the accused took and stole two pawn tickets issued to bearer, without the consent of Leonor Gil de Lazaro, and using the numbers of said tickets, but without presenting them, and misrepresenting himself to be the owner of the jewels mentioned in said pawn tickets, succeeded in redeeming them from the pawnshop in which they were pledged. If the pawn tickets were taken and stolen and not the jewels, which were voluntarily delivered to the accused by the pawnshop, although through false statements of the accused, said delivery cannot be qualified as theft under the provisions of the Penal Code now in force. And as it was not proved that the jewels were taken without the consent of the pawnshop in which they were pledged, nor of the owner, the accused cannot be convicted under said information in which he is charged with the crime of theft of said jewels, because to do so would be infringing upon the constitutional right of the accused "to demand the nature and cause of the accusation against him." (Sec. 3. Jones Law.)

On account of the discrepancy between the facts alleged in the information and those proven at the trial, said information must be dismissed and the accused acquitted, and another information should be filed in accordance with the facts proven.

For the foregoing, the judgment appealed is reversed, and the accused is acquitted of the charge, which is hereby dismissed with costs de oficio, the prosecuting attorney being required to present another information in accordance with the findings herein set forth. So ordered.