GR L 16966; (August, 1921)

EN BANC

G.R. No. L-16966; August 24, 1921

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
VALENTIN VELAZCO, defendant-appellant.

Luciano de la Rosa for appellant.
Attorney-General Feria for appellee.

VILLAMOR, J.:

Valentin Velazco, Guy Bian Ym, and Co Banling were charged in the Court of First Instance of Manila with the crime of estafa under the following information:

That on or about August 23, 1919, in the city of Manila, P.I., the said accused conspiring and conniving with each other and mutually assisting one another swindled the Philippine National Bank in the following manner: the accused Valentin Velazco, by means of the false statement and fraudulent misrepresentation made on said date and at said place to the Philippine National Bank to the effect that he sufficient funds in the Bank of the Philippine island, and that his coaccused, the said Guy Bian Ym and Co. Banling also had sufficient funds in the International Banking Corporation also of this place, induced the agents, representatives and employees of the Philippine National Bank to believe said statement and to cash the following checks:

Name of the maker.	Number of check.	Date.	Amount.	Bank.
Valentin Velazco –	A 354870 &nbsp &nbsp B 354871 &nbsp &nbsp C 354872 &nbsp &nbsp	Aug. 23, 1919 – – – do – – – – – – – – – – do – – – – – – –	P6,500 5,000 5,500		Bank of the Philippine Islands
Guy Bian Ym – – – –	D 56599-D E 56598-D F 56600-D G 48658-D	Aug. 22, 1919 – – – do – – – – – – – – – – do – – – – – – – Aug. 23, 1919	5,000 4,000 3,000 6,200		International Banking Corporation.
Co Banling – – – –	H 48659-D I 56602-D J 56603-D	– – – do – – – – – – – – – – do – – – – – – – – – – do – – – – – – –	5,000 4,000 3,800

making a total of P48,000, when in reality, as the accused Valentin Velazco well knew, he did not have any funds in the Bank of the Philippine Islands with which to pay or cover the amount of the said three checks issued by him, and his two coaccused, the said Guy Bian Ym and Co Banling neither had any funds in the International Banking Corporation with which to pay or cover the amount of the checks above described; that in the commission of this offense the other accused Guy Bian Ym and Co Banling directly and effectively assisted by means of an act without which the offense could not have been consummated, that is, with knowledge of the criminal plans of the accused Valentin Velazco and of the fact that they did not have sufficient funds in the International Banking Corporation, they subscribed and issued the checks against the International Banking Corporation, in order that the accused Valentin Velazco might be able fraudulently to negotiate said checks, as was in fact done, in the Philippine National Bank, in this manner defrauding and injuring the said institution in the said sum of P48,000, equivalent to 240,000 pesetas.

Before the commencement of the trial, the accused Valentin Velazco asked for a separate trial, which was granted by the court. The prosecuting attorney on the other hand asked for the dismissal of the cause as to the accused Guy Bian Ym and Co Banling, alleging that the testimony of said accused was essential and necessary to secure the conviction of the principal defendant, Valentin Velazco, and that the latter was more guilty than his two coaccused. The trial court, in view of these statements of the prosecuting attorney, dismissed the case with respect to the accused Guy Bian Ym and Co Banling, and ordered the trial to proceed against the present appellant Valentin Velazco, who was afterwards found guilty of the offense with which he is charged and was sentenced by the trial court to suffer imprisonment for one year, eight months and twenty-one days of presidio correccional and to pay the costs, but without imposing upon him the penalty of indemnifying the offended party for the reason that the accused Guy Bian Ym and Co Banling paid the amount fraudulently obtained, one month after the filing of the information.

It appears from the evidence that in the morning of August 23, 1919, Valentin Velazco, upon the pretense that it was necessary for him to secure the confidence of the National Bank and obtain from it a credit to finance a business which he intended to establish, asked Guy Bian Ym and Co Banling for the three checks (Exhibits K, L, M) issued by him against the National Bank, representing a total of P31,000, and that they be changed with personal checks of the said Guy Bian Ym and Co Banling. The latter, by reason of their confidence in Velazco, issued several checks, the first issuing five checks which are Exhibits D, E, F, I, and J, and the second, two checks Exhibits G and H, that is, in all seven checks against the International Banking Corporation amounting to a total of P31,000; but with the warning not to negotiate them until the following Monday, because they (the two makers) did not have on said day, August 23, 1919, sufficient funds to meet said checks. Valentin Velazco received the checks but notwithstanding the warning made to him by the makers, on the same morning of August 23, 1919, he deposited in his current account in the National Bank the five checks of Guy Bian Ym and two checks of Co Banling together with three checks issued by him (Velazco) against the Bank of the Philippine Islands (Exhibits A, B, and C) in all ten checks representing a total of P48,000.

Due to the confidence which the employees of the National Bank had in Velazco as client, the National Bank accepted the said checks and credited them in his current account. On the same morning, August 23, 1919, Valentin Velazco drew from the National Bank P48,000 by means of the checks drawn by him and attached to the record of this case.

The National Bank presented the checks drawn against the Bank of the Philippine Islands and the International Banking Corporation for collection, but said checks were refused and returned to the National Bank owing to the lack of funds of the makers.

The facts stated and proved in the case were correctly considered by the trial court as constituting the crime of estafa defined and penalized in article 535, case No. 1, of the Penal Code.

The appellant imputes two errors as having been committed by the trial court to wit: (a) The error consisting in the order dismissing the case as to the accused Guy Bian Ym and Co Banling; (b) that consisting in finding that the accused Valentin Velazco guilty of the offense of estafa with which he is charged.

With respect to the first error, it suffices to say that the power to dismiss criminal cases is discretionary with the court. What the law requires is that the dismissal shall be ordered before the accused commences to introduce evidence, that is, at any time before the presentation of evidence for the defense, and this is just what the court did. This court in interpreting article 2 of Act No. 2709 in the case of United States vs. Abanzado (37 Phil., 658, 664, 665), says:

Examining the terms of these statutory enactments, it is clear that it was not the intention of the legislator, by the enactment of Act No. 2709, to deprive the prosecution and the state of the right to make use of accomplices and informers as witnesses, but merely to regulate the exercise of that right by establishing the conditions under which it may properly be exercised. It is clear, furthermore, that the legislator intended to rest the manner of the enforcement of these conditions in the sound judicial discretion of the courts. This discretion, in the very nature of the things, must, as a general rule, be exercised prior to the trial, and in all cases before the accused have entered upon their defense. Under the circumstances, it may well be expected that the court will err at times in its exercise. A trial judge cannot be expected or required to inform himself with absolute certainty at the very outset of the trial as to everything which may be developed in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint. If that were practicable or possible there would be little need for the formality of a trial. He must rely in large part upon the suggestion and the information furnished by the prosecuting officer in coming to his conclusion as to the “necessity for the testimony of the accused whose discharge is requested;” as to the availability or nonavailability of other direct or corroborative evidence; as to which of the accused is “most guilty,” and the like. If the errs in the exercise of his discretion and discharges a guilty person who should not have been set at liberty, the error, as a general rule, cannot be cured any more than any other error can be cured which results in an acquittal of a guilt defendant in criminal action (U. S. vs. De Guzman, 30 Phil., 416); but no sound reason has been suggested in support of a ruling that the commission of such an error of discretion should have the effect of discharging from criminal liability the accused persons who were not discharged that they might be used as witnesses; and there is nothing in the law which indicates that it was the intention of the legislator to provide for their discharge under such circumstances.

In view of the evidence presented by the prosecuting attorney, our opinion is that the trial court correctly ordered the dismissal of the case with respect to the accused Guy Bian Ym and Co Banling.

As to the second error, after a careful review of the evidence before us, we are of the opinion and so should, that the evidence for the prosecution establishes the guilt of the accused beyond a reasonable doubt. Without question the means employed by the appellant to obtain money from the National Bank was fraudulent, for he very well knew that the checks which he deposited had no value and because through an abuse of the confidence which the employees of the bank had in him, by means of false representation, he obtained from that banking institution the amount fraudulently represented by said checks, all to the injury and prejudice of the National Bank which has been deprived and for one month of the possession and use of the amount of which it was swindled. (U.S. vs. Escalante, R. G. No. 13178, decided March 1, 1918, not reported; U.S. vs. Eguia Lim Buanco and De los Reyes, 14 Phil., 472; U.S. vs. Berry, 5 Phil., 370; U. S. vs. Valdeo, R. G. No. 8796, decided December 2, 1913, not reported. )

The fact that Guy Bian Ym and Co Banling had repaid the amount embezzled to the National Bank does not affect the criminal responsibility of the accused Velazco for the crime. The crime was committed by him and for it he is criminally liable. The reimbursement of the amount embezzled exempts the accused only from civil liability (U. S. vs. Escalante, supra).

Taking into account the extent of the injury produced by the offense which, in a certain degree, disturbed the economic life of banking institution, we hold it proper, in accordance with article 81, rule 7 of the Penal Code to impose upon the accused the maximum of the medium degree of the penalty fixed by article 543, case No. 3 of the same code, that is, two years, eleven months, and ten days of presidio correccional; and the judgment, as thus modified, is affirmed with costs against the appellant. So ordered.

Johnson, Araullo, Street and Avanceña, JJ., concur.

Batas Pinas