Professional Documents
Culture Documents
L-7593
that this balance remained in the possession of the defendant, who drew up an instrument payable
on demand, he has drawn two conclusions, both erroneous: One, that the instrument drawn up in
the form of a deposit certificate could be indorsed or negotiated like any other commercial
instrument; and the other, that the sum of P2,498 remained in defendant's possession as a loan.
It is erroneous to assert that the certificate of deposit in question is negotiable like any other
commercial instrument: First, because every commercial instrument is not negotiable; and second,
because only instruments payable to order are negotiable. Hence, this instrument not being to order
but to bearer, it is not negotiable.
It is also erroneous to assert that sum of money set forth in said certificate is, according to it, in the
defendant's possession as a loan. In a loan the lender transmits to the borrower the use of the thing
lent, while in a deposit the use of the thing is not transmitted, but merely possession for its custody
or safe-keeping.
In order that the depositary may use or dispose oft he things deposited, the depositor's consent is
required, and then:
The rights and obligations of the depositary and of the depositor shall cease, and the rules
and provisions applicable to commercial loans, commission, or contract which took the place
of the deposit shall be observed. (Art. 309, Code of Commerce.)
The defendant has shown no authorization whatsoever or the consent of the depositary for using or
disposing of the P2,498, which the certificate acknowledges, or any contract entered into with the
depositor to convert the deposit into a loan, commission, or other contract.
That demand was not made for restitution of the sum deposited, which could have been claimed on
the same or the next day after the certificate was signed, does not operate against the depositor, or
signify anything except the intention not to press it. Failure to claim at once or delay for sometime in
demanding restitution of the things deposited, which was immediately due, does not imply such
permission to use the thing deposited as would convert the deposit into a loan.
Article 408 of the Code of Commerce of 1829, previous to the one now in force, provided:
The depositary of an amount of money cannot use the amount, and if he makes use of it, he
shall be responsible for all damages that may accrue and shall respond to the depositor for
the legal interest on the amount.
Whereupon the commentators say:
In this case the deposit becomes in fact a loan, as a just punishment imposed upon him who
abuses the sacred nature of a deposit and as a means of preventing the desire of gain from
leading him into speculations that may be disastrous to the depositor, who is much better
secured while the deposit exists when he only has a personal action for recovery.
According to article 548, No. 5, of the Penal Code, those who to the prejudice of another
appropriate or abstract for their own use money, goods, or other personal property which
they may have received as a deposit, on commission, or for administration, or for any other
purpose which produces the obligation of delivering it or returning it, and deny having
received it, shall suffer the penalty of the preceding article," which punishes such act as the
crime of estafa. The corresponding article of the Penal Code of the Philippines in 535, No. 5.
In a decision of an appeal, September 28, 1895, the principle was laid down that: "Since he commits
the crime ofestafa under article 548 of the Penal Code of Spain who to another's detriment
appropriates to himself or abstracts money or goods received on commission for delivery, the court
rightly applied this article to the appellant, who, to the manifest detriment of the owner or owners of
the securities, since he has not restored them, willfully and wrongfully disposed of them by
appropriating them to himself or at least diverting them from the purpose to which he was charged to
devote them."
It is unquestionable that in no sense did the P2,498 which he willfully and wrongfully disposed of to
the detriments of his principal, Juana Montilla, and of the depositor, Eugenio Veraguth, belong to the
defendant.
Likewise erroneous is the construction apparently at tempted to be given to two decisions of this
Supreme Court (U. S. vs. Dominguez, 2 Phil. Rep., 580, and U. S. vs. Morales and Morco, 15 Phil.
Rep., 236) as implying that what constitutes estafa is not the disposal of money deposited, but denial
of having received same. In the first of said cases there was no evidence that the defendant had
appropriated the grain deposited in his possession.
On the contrary, it is entirely probable that, after the departure of the defendant from
Libmanan on September 20, 1898, two days after the uprising of the civil guard in Nueva
Caceres, the rice was seized by the revolutionalists and appropriated to their own uses.
In this connection it was held that failure to return the thing deposited was not sufficient, but that it
was necessary to prove that the depositary had appropriated it to himself or diverted the deposit to
his own or another's benefit. He was accused or refusing to restore, and it was held that the code
does not penalize refusal to restore but denial of having received. So much for the crime of
omission; now with reference to the crime of commission, it was not held in that decision that
appropriation or diversion of the thing deposited would not constitute the crime of estafa.
In the second of said decisions, the accused "kept none of the proceeds of the sales. Those, such as
they were, he turned over to the owner;" and there being no proof of the appropriation, the agent
could not be found guilty of the crime of estafa.
Being in accord and the merits of the case, the judgment appealed from is affirmed, with costs.
Torres, Johnson and Trent, JJ., concur.