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[G.R. No. 7593. March 27, 1914.

]
THE UNITED STATES, plaintiff-appellee, vs. JOSE M. IGPUARA, defendant-appellant.
Facts:
The defendant herein is charged with the crime of estafa, for having swindled Juana Montilla
and Eugenio Veraguth out of P2,498 Philippine currency, which he had taken on deposit from the
former to be at the latter's disposal. The document setting forth the obligation reads:
"We hold at the disposal of Eugenio Veraguth the sum of two thousand four hundred and
ninety-eight pesos P2,498), the balance from Juana Montilla's sugar. Iloilo, June 26, 1911. Jose
Igpuara, for Ramirez & Co."
CFIs ruling:

sentenced the defendant to two years of presidio correccional,


to pay Juana Montilla P2,498 Philippine currency,
and in case of insolvency to subsidiary imprisonment at P2.50 per day, not to exceed one-third
of the principal penalty, and the costs.

The defendant appealed the CFIs decision. He argued that Juana Montilla's agent voluntarily
accepted the sum of P2,498 in an instrument payable on demand, and as no attempt was made to cash
it until August 23, 1911, he could indorse and negotiate it like any other commercial instrument. There is
no doubt that if Veraguth accepted the receipt for P2,498 it was because at that time he agreed with the
defendant to consider the operation of sale on commission closed, leaving the collection of said sum
until later, which sum remained as a loan payable upon presentation of the receipt.
Issue:
WON the defendant is guilty of misappropriating the deposit under his custody.
Held:
It is erroneous to assert that the certificate of deposit in question is negotiable like any other
commercial instrument; First, because every commercial 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 the 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 of the 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
some time in demanding restitution of the thing 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 that when he only has a
personal action for recovery.
In a decision of an appeal, the principle was laid down that: "Since he commits the crime
of estafa 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 detriment of his principal, Juana Montilla, and of the depositor, Eugenio Veraguth, belong to
the defendant.
Likewise erroneous is the construction apparently attempted 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 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 of 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 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 with law and the merits of the case, the judgment appealed from is affirmed,
with costs.