G.R. No. 1565 : January 14, 1905
THE UNITED STATES, complainant-appellee, vs. JOSE NER, defendant-appellant.

FACTS:
On November 25, 1902, a complaint was filed in the Court of First Instance of Manila charging Jose Ner with the crime of estafa. The complaint alleged that on November 17, 1902, the defendant received from Agripina de Guzman various pieces of diamond jewelry valued at 869 pesos (Mexican) to be sold on commission. Instead of selling or returning the jewelry, the defendant misapplied and embezzled them to the prejudice of the owner. Despite demands, Ner failed to return the jewelry and later executed a written instrument promising to return them the following day, which he also failed to do. After trial, the court found Ner guilty and sentenced him to one year of presidio correccional.

ISSUE:
Whether the defendant, Jose Ner, is guilty of the crime of estafa under Articles 534 and 535 of the Penal Code.

RULING:
Yes, the Supreme Court affirmed the conviction but modified the penalty. The Court held that the facts constituted the crime of estafa, defined and penalized under Article 534(2) and Article 535(5) of the Penal Code. The defendant, as principal, unlawfully appropriated jewelry entrusted to him for sale on commission. The evidence, including the defendant’s signed instrument and testimonies, established his guilt beyond doubt. No aggravating or extenuating circumstances were present. Accordingly, the penalty was imposed in its medium degree. The Court reversed the lower court’s judgment and sentenced Jose Ner to six months of arresto mayor, ordered him to return the embezzled jewelry or its value (except three pieces already recovered), with subsidiary imprisonment in case of insolvency not exceeding one-third of the principal penalty, and to pay the costs in both instances. The case was remanded to the lower court for execution.