GR L 3326; (September, 1907)

EN BANC

G.R. No. L-3326:September 7, 1907

THE UNITED STATES, plaintiff-appellee,

vs.
LAURENTE REY, defendant-appellant.

Bishop & O’Brien for appellant.
Attorney-General Araneta for appellee.

JOHNSON, J.:

This defendant was charged with the crime of robbery in the Court of First Instance of the subprovince of Masbate in the words and figures following:

The undersigned Laurente Rey, as principal, of the crime of robbery, committed as follows:

That on or about the 26th of September, 1905, in the municipality of San Jacinto, subprovince of Masbate, Philippine Islands, the accused Laurente Rey, in company with Hipolito Roblora, Lucio Estay, Jose Sudueño, Demetrio Sudueno, Melecio Hernandez, and Luis Almosara, willfully, intentionally, maliciously, with intent of profiting thereby, against the will of its owner and employing force with regard to the property, took possession of the sum of fifteen thousand pesos, in silver currency and paper certificates, and all the legal tender of the Philippine Islands; that said amount is the property of Urrutia & Co. and of Muñoz & Co., both commercial firms doing business in the city of Manila; that the above mentioned amount was placed by those firms on board the steamship Cantabria, which was totally wrecked and lost off the land of Mababuy, within the municipality of San Jacinto, subprovince of Masbate, Philippine Islands; that said amount was packed in several boxes; that those boxes were reenforced with iron straps and nails, which were broken by the accused in order to take possession of the said sum of money; that the accused, once having taken possession of the money, delivered to Petrona Justiniano, who had knowledge of the perpetration of the crime, the paper certificates, which were dried out by her with a smoothing iron and were kept by her with the intent of appropriating the same. All contrary to the statute.

Masbate, March 14, 1906.

After hearing the evidence adduced during the trial of the said cause, the lower court found that the defendant guilty of the crime charged in the complaint and sentenced him to be imprisoned for a period of four years, and to restore to the Union Insurance Company of Canton, Limited, the sum of 10,000 pesos and to pay the costs of the prosecution. From this sentence the defendant appealed and made the following assignment of errors:

(1) The court erred in finding that the crime of robbery had been committed.

(2) The sentence of the court is contrary to the evidence and the law.

By these assignments of error the defendant presents two questions, one of law and one of fact.

An examination of the record brought to this court shows that some facts were admitted and some were denied by the respective parties. The facts admitted were substantially as follows:

That on or about the 19th day of September, 1905, the steamer Cantabria sailed from the port of Manila, destined for the pueblo of Tabaco, in the Province of Albay, and after remaining in quarantine at the quarantine station of Mariveles, continued the journey from said quarantine station on the 24th day of September, and on or about the 26th day of said month said ship was totally wrecked off the small Island of Mababuy and all its officers, passengers, and cargo were totally lost.

It is proved that said ship had on board at the time of sailing from the city of Manila, as a part of her cargo, three boxes containing money, amounting to at least 25,000 pesos. There is some confusion in the evidence concerning the exact amount of money. This money was shipped by the firms of Urrutia & Co. and Muñoz & Co.

It is proved that one Jesus A. de Sendagorta, in the month of January, 1906, recovered from the wreck of said ship the sum of 10,000 pesos.

It is approved that of the 25,000 pesos shipped on the said Cantabria, 20,000 of said amount belonged to Urrutia & Co. and 5,000 belonged to Muñoz & Co.

It is admitted that on the 16th day of October, Mr. Edward E. Hill, as agent for Union Insurance Company of Canton, Limited, paid to Urrutia & Co. the sum of 35,000 pesos for losses which the said company incurred by reason of the wreck of said steamer, and that 20,000 of said amount was for the purpose of covering the 20,000 pesos shipped by the said Urrutia & Co. on said steamer on the 19th day of September.

The facts charged by the fiscal and denied by the defendant are substantially as follows:

That the defendant, with several others, on the 28th day of September, 1905, after having discovered the existence and location of the wrecked steamer, took from the said wrecked steamer the sum of 15,000 pesos a part of which was distributed among his companions the largest portion of which was retained by the said defendant.

The lower court made the following finding of facts from the evidence adduced during the trial of the cause:

That on the 19th of September, 1905, silver and paper money amounting to 25,000 pesos belonging to the firms of Urrutia & Co. and Muñoz & Co., of Manila, was placed on the steamer Cantabria at Manila by said firms for shipment; that 5,000 pesos of the said money belonged to Muñoz & Co. and 20,000 pesos to Urrutia & Co; that on the 26th day of September the Cantabria was totally wrecked off the Island of Mababuy, every person on her being drowned, the bills of lading of said money being lost, and the money sunk with the ship; that on the 28th day of September, the defendant, Laurente Rey, with the assistance of several men who were in his employ, proceeded to said wrecked steamer and willfully, unlawfully, and with the intention of appropriating it to his own use took therefrom two boxes, one containing 10,000 pesos and the other 5,000 pesos; that 10,000 pesos of the said money was the property of Urrutia & Co. and 5,000 pesos was the property of Muñoz & Co.

Admitting the foregoing disputed facts to be true for the purpose of discussing the first assignment of error made by the appellant, the question arises whether or not the defendant, under these facts, is guilty of he crime of robbery, under the provisions of Penal Code.

The theory of the defendant and appellant is that the said property which was sunk with the wrecked steamer, the said Cantabria, was abandoned properly and therefore, granting that he had taken possession of said property and appropriated it to his own use, he was not guilty of the crime of robbery. The defendant and appellant, in his brief, admits the following fact:

That it was more than six weeks after the cyclone (in which the Cantabria was sunk) before any definite knowledge was received in regard to the fate of the Cantabria, thus admitting that the owner of the money alleged to has been robbed and no definite knowledge of its lost for six weeks or more after the destruction of said ship.

Article 460 of the Civil Code provides how the possessor of property may lose his possession of the same:

(1) By abandonment of the thing.

(2) By the transfer to another for a good and valuable consideration.

(3) By the destruction of total loss of the thing or by the thing becoming unmarketable.

(4) By the possession of another, even against the will of the former possessor, if the new possessor has lasted more than one year.

The evidence shows, if it can be believed, that the defendant and his companions entered the wrecked ship and removed therefrom the said money and appropriated the same to hiss own use in about twenty-four hours after the time of sinking of the said ship. Can one be charged with the abandonment of his property without even knowing that the same has passed out of his possession or has been lost? We are of the opinion, and so hold, that this question must be answered in the negative.

Manresa, in his Commentaries upon the provisions of the Civil Code, says (vol. 4, p. 291):

He who has a right may renounce it. This act by which thing is voluntary renounced constitutes an abandonment. There is no real intention to abandon a property when, as in the case of a shipwreck or a fire, things are thrown into the sea upon the highway.

Certainly the owner of the property ca not be held to have abandoned the same until at least he has some knowledge of the loss of its possession or of the loss of the thing.

Property can not be considered abandoned under the law and the possession left vacant for the finder until the spes recuperandi is gone and the animus revertendi is finally given up. (The Ann L. Lockwood, 37 Fed. Rep., 233.)

The theory of abandonment on the part of the owners of the money stolen is fully refuted by the fact that some weeks after the wreck of the said ship they sent men to the place of the wreck for the purpose of recovering the property which belonged to them, which was on board the ship at the time of her sinking. The mere fact that cargo is sunk with a ship wrecked at sea by no means deprives the owner of said cargo of his property therein. The owner certainly still had the right to reclaim such property and to recover the same if possible. If it should be recovered by others, the real owner would be entitled to recover its value less the necessary expense of recovering the same and carrying it shore by the most approved appliances for that purpose by others. (Murphy vs. Dunham, 38 Fed. Rep., 503.)

If the defendant and his companions had recovered the cargo from the sunken ship for the benefit of the owners of the same, he might have been entitled to compensation of his labor, but when he entered the sunken ship and took therefrom, by force, the property of another before actual abandonment by the owner and appropriated the same to his own use, he was, under the provisions of the Penal Code in force in the Philippine Islands, guilty of the crime of robbery.

Upon the question whether or not the defendant and his companions did actually commit the acts charged in the said complaint, we are of the opinion, and so hold, that the evidence adduced during the trial in the lower court fully shows that the defendant did commit such acts in the manner and form as charged in said complaint. Therefore we do hereby affirm the sentence of the lower court and do hereby sentence the defendant to imprisonment for a period of four years of presidio correccional, under the provisions of paragraph 5 article 512 of the Penal Code, to return it Urrutia & Co. and Muñoz & Co., or the Union Insurance Company of Canton , Limited, the sum of 15,000 pesos, in case of insolvency to suffer subsidiary imprisonment in accordance of paragraph 1 of article 50 of the Penal Code, and to pay the costs. So ordered.

Arellano, C.J., Torres, Willard, and Tracey, JJ., concur.

Batas Pinas