G.R. No. L‑3642
October 7, 1907

FACTS
– Antonio Xavier, together with Juan Montes and Eugenio Napazendayao, was charged with estafa after a bearer‑check (No. 163 377, ₱2,000) was forged in the name of Charles W. Briggs and presented to the Hongkong and Shanghai Banking Corporation, Iloilo.
– Prior to trial, the fiscal invoked Sec. 34 of General Orders No. 58, causing Montes and Napazendayao to be discharged as witnesses.
– The trial court found Xavier guilty of estafa under Art. 535(5) in relation to Art. 534, with an aggravating circumstance of abuse of confidence, and sentenced him to four (4) years’ presidio correccional, a ₱2,000 indemnity, subsidiary imprisonment, accessory penalties, and costs.
– Xavier appealed, asserting four errors: (1) the facts constitute falsification, not estafa; (2) evidence was insufficient; (3) the court lacked authority to dismiss co‑defendants; (4) a new trial should be granted.

ISSUE
Whether the trial court erred in (a) qualifying the crime as estafa instead of falsification, (b) convicting Xavier on the evidence presented, (c) dismissing the co‑defendants under Sec. 34 of General Orders No. 58, and (d) refusing a new trial after alleged false affidavits by witnesses.

RULING
1. Crime qualification The evidence substantiated estafa; Xavier had not timely objected to the charge, and the court was correct to retain the estafa qualification. The possibility of a concurrent falsification does not alter the conviction.
2. Sufficiency of evidence The factual findings (forged check, unauthorized signature, receipt of funds, non‑repayment) firmly support Xavier’s guilt for estafa. The conviction stands.
3. Dismissal of co‑defendants Sec. 34 of General Orders No. 58 expressly authorizes the discharge of co‑defendants as witnesses before defense is entered. The fiscal’s request was proper; the trial court committed no error.
4. New trial Affidavits alleging perjury and inducement were filed after judgment and did not materially affect the evidence that secured conviction. The trial court correctly denied the motion for a new trial.

Penalty Adjustment
The Supreme Court held that the aggravating circumstance cited (abuse of confidence) was an element of the crime and therefore not a separate aggravating factor. Applying Art. 535(1) in relation to Art. 534(3), the appropriate penalty is presidio correccional of the minimum and medium grades.

Final Order The sentence is modified to:
– Imprisonment for two (2) years presidio correccional;
– Indemnity of ₱2,000 to the Hongkong and Shanghai Banking Corporation (or subsidiary imprisonment not exceeding one‑third of the principal sentence if insolvent);
– Accessory penalties under Art. 58 of the Penal Code; and
– Payment of costs.

The judgment of the Court of First Instance is affirmed in substance, with the above modification.