Tubb vs. People

An accused cannot be convicted of estafa under Article 315, paragraph 2(a), when the information charges only estafa under Article 315, paragraph 1(b), because the two offenses are distinct and the false pretenses essential to paragraph 2(a) must be alleged; but conviction under paragraph 1(b) stands where the information charges misappropriation and the evidence establishes it, demand not being a condition precedent.

George L. Tubb had known William R. Quasha since earlier in 1947, when Quasha defended Tubb in a court-martial case.

On August 15, 1947, Tubb called on Quasha at the latter’s office at Dasmariñas St., Manila, and talked him into investing in the rattan business, saying that rattan could be bought for P0.20 a piece in Southern Luzon and sold for P0.70 a piece in Manila. Quasha delivered P6,000 to Tubb the following day, August 16, with the understanding that the money would be used exclusively by Tubb to purchase rattan for resale in Manila, that the rattan would be brought to Manila within a few days, and that the profit would be divided equally between them after the P6,000 capital was returned to Quasha.

On August 21, 1947, Quasha received a telegram from Tubb, who was in Calauag, Quezon, asking him to procure a license from the Bureau of Forestry for the purchase of forest products. Quasha replied by letter dated August 22, 1947, saying that although a license was not required to purchase forest products, he was sending Tubb an application to cut and gather products as a lessee or concessionaire. Tubb received the letter and sent back the application, duly accomplished, in a letter dated August 27, 1947, through defense witness Amado Resurreccion; the license was secured and sent to Tubb.

On September 16, 1947, having received no word from Tubb, Quasha sent a telegram of inquiry, but the postmaster of Calauag, Quezon, answered that Tubb was no longer residing there. Quasha went to Tubb’s former office at the Samanillo Building and was informed that Tubb had not been heard from for some time. Sometime in 1948, Quasha met Tubb at the Manila Hotel and asked what he had done with the P6,000; Tubb merely said that there was no use telling what happened, but that he would try to pay Quasha back as he was then working for one Gabino Angchuan of Cebu City and could get money from his employer. Quasha did not hear from Tubb for a long time again; he wrote to Tubb in Cebu City care of Gabino Angchuan, but the letter was not answered. When Quasha heard that Tubb was in Cagayan de Oro, Oriental Misamis, he wrote to him, threatening a criminal action if he did not pay within one month, in letters dated July 25, 1949, and January 28, 1950.

Tubb did not take the witness stand. His counsel presented Avelino Leyco, Amado Resurreccion, and Joe Oberly, and argued that Tubb, together with Amado Resurreccion and with the assistance of Avelino Leyco, did buy plenty of rattan in Polillo and in Calauag, but that the rattan got drenched in the rain due to typhoons, became moldy, and spoiled. The information charged that on or about August 16, 1947, in Manila, Tubb received P6,000 from Quasha for the purpose of buying rattan and other forest products from the provinces, under the express obligation to deliver the articles if bought on or before August 31, 1947, or to return the amount if unable to buy by that date, but that once in possession of the money, and despite repeated demands, he absconded with the P6,000 and never appeared again, misappropriating, misapplying, and converting it to his own personal use.

The CA found that Tubb did not actually buy rattan out of the money entrusted to him; that he did not advise Quasha of his whereabouts after leaving Calauag despite the claim that he and Resurreccion returned to Manila; and that after the chance meeting at the Manila Hotel he again absconded, so that his unexplained conduct indicated a guilty conscience.

• Variance and Right to Be Informed: Petitioner argued that the CA committed grave error of law in holding that a person charged in the information with estafa under Article 315, paragraph 1(b), of the Revised Penal Code may be convicted of estafa under Article 315, paragraph 2(a), because the offenses are entirely different and distinct and some essential elements of paragraph 2(a) — specifically false pretenses or fraudulent acts executed prior to or simultaneously with the fraud — were not alleged, violating his constitutional right to be informed of the nature and cause of the accusation.
• Criminal Liability vs. Civil Liability: Petitioner maintained that under the facts established or undisputed, the CA should have acquitted him; the defense insisted that there was a lawful partnership between Tubb and Quasha and that the failure of the venture rendered him liable only for a liquidation of the partnership.
• Demand: Petitioner urged that there can be no estafa without a previous demand, which allegedly was not made upon him.

• Correct Offense: Respondent countered that the correct offense was estafa under Article 315, paragraph 2(a), not paragraph 1(b).

• Variance / Right to Be Informed: Whether a person charged in the information with estafa under Article 315, paragraph 1(b), of the Revised Penal Code may be convicted of estafa under Article 315, paragraph 2(a).
• Criminal Liability / Estafa vs. Civil Liability: Whether petitioner is criminally liable for estafa or only civilly liable for the principal sum of P6,000.
• Demand: Whether a previous demand is a condition precedent to estafa/embezzlement.
• Partnership: Whether the defense of a lawful partnership between petitioner and complainant precludes conviction for estafa.

• Variance / Right to Be Informed: No. The CA could not convict Tubb under Article 315, paragraph 2(a), because the information charged only paragraph 1(b); the two offenses are distinct, and the false pretenses essential to paragraph 2(a) were not alleged, violating his right to be informed.
• Criminal Liability / Estafa vs. Civil Liability: Yes. He is criminally liable for embezzlement under Article 315, paragraph 1(b), not merely civilly liable for the P6,000; the evidence showed he misappropriated the money entrusted to him.
• Demand: No. A demand is not a condition precedent to estafa/embezzlement; failure to account upon demand is only circumstantial evidence of misappropriation, which may be proved by other evidence.
• Partnership: No. The defense of lawful partnership did not preclude conviction; the SC was not convinced that Tubb actually bought rattan with the money, and his conduct indicated a guilty conscience.

• Variance / Right to Be Informed: The information charged estafa under Article 315, paragraph 1(b), which punishes misappropriation or conversion of money received in trust or under an obligation to deliver or return. The CA convicted under paragraph 2(a), which punishes estafa by false pretenses or fraudulent acts executed prior to or simultaneously with the fraud. The SC held these are entirely different and distinct offenses. Some essential elements of paragraph 2(a) were not alleged in the information, such as false pretenses or fraudulent acts executed prior to or simultaneously with the fraud. Paragraph 1(b)’s main characteristic is unfaithfulness or abuse of confidence, which was the essence of the charge. Conviction under paragraph 2(a) would violate the constitutional right to be informed of the nature and cause of the accusation. Therefore, the CA’s conviction under paragraph 2(a) cannot stand.
• Criminal Liability / Estafa vs. Civil Liability: The SC examined the findings of fact and found that the P6,000 belonging to Quasha had been misappropriated. Tubb disappeared soon after receipt in August 1947; when Quasha found him at the Manila Hotel in 1948 and asked what he had done with the money, Tubb said “that there was no use telling what happened” but that he would try to pay it back. If the money had been invested in rattan that later spoiled, as the defense tried to prove, he would have said so. His statement and conduct before and after implied he had misappropriated the funds. The SC was not convinced he actually bought rattan with the money. Thus, he was guilty of embezzlement under Article 315, paragraph 1(b), as charged, and not merely civilly liable.
• Demand: Petitioner urged no estafa without previous demand. The SC held the query by Quasha at the Manila Hotel was tantamount to a demand. Besides, the law does not require a demand as a condition precedent to embezzlement; failure to account upon demand is only circumstantial evidence of misappropriation, which may be established by other proof, as in this case. The cases People vs. Evangelista and U.S. vs. Bleibel are not in point: Evangelista involved estafa through false pretenses, not malversation; Bleibel involved a commission agent, a demand that did not reach him, payment before information, and an unsettled account for salary. None of those circumstances obtained here.
• Partnership: The defense insisted there was a lawful partnership and that failure of the venture made Tubb liable only for liquidation. The SC was not convinced that Tubb actually bought rattan out of the money entrusted to him. He did not advise Quasha of his whereabouts after leaving Calauag despite allegedly returning to Manila; after the Manila Hotel meeting he again absconded; and despite the length of time given to repay, Quasha was compelled to go to court. This unexplained conduct indicated a guilty conscience. The CA’s rejection of the lawful partnership defense was thus affirmed.

• Variance between Information and Conviction / Right to Be Informed — An accused may only be convicted of the offense charged in the information or one necessarily included therein; where the information charges estafa under Article 315, paragraph 1(b), conviction under Article 315, paragraph 2(a) is invalid because the offenses are distinct and the false pretenses essential to paragraph 2(a) must be alleged. Applied: the SC set aside the CA’s paragraph 2(a) conviction.
• Estafa by Misappropriation under Article 315, Paragraph 1(b) — The crime is committed by misappropriating or converting money or property received in trust or under an obligation to deliver or return, to the prejudice of another. Its essence is unfaithfulness or abuse of confidence. Applied: Tubb received P6,000 for a specific purpose and failed to return or account; his disappearance and implied admission showed misappropriation.
• Demand not essential in embezzlement — A prior demand is not a condition precedent to estafa/embezzlement; failure to account upon demand is merely circumstantial evidence of misappropriation, which may be proved by other evidence. Applied: even if the Manila Hotel query was the only demand, it was sufficient; other proof established misappropriation.
• Partnership defense — A claim of lawful partnership does not preclude estafa where the accused did not actually invest or use the money in the venture and instead misappropriated it. Applied: the SC was not convinced Tubb bought rattan; his conduct indicated guilty conscience.

• “This offense is, however, entirely different and distinct from that described in paragraph 1 (b) quoted above. Moreover, some of the essential elements of the offense defined in said paragraph 2 (a) are not alleged in the information herein.” — The SC holds that the CA cannot convict under paragraph 2(a) when the information charges only paragraph 1(b), because the offenses are distinct and the elements of paragraph 2(a) are not alleged.
• “The allegations thereof are such as not to permit petitioner's conviction for estafa under said paragraph 2 (a), without violating his constitutional right to be informed of the nature and cause of the accusation against him.” — The SC ties the variance problem to the constitutional right to be informed of the nature and cause of the accusation.
• “Besides, the law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for the funds or property held in trust, is circumstantial evidence of misappropriation.” — The SC rejects the argument that estafa/embezzlement requires a prior demand.
• “Had said money been invested in rattan which later on was spoiled, as appellant tried to prove, he would have said so, instead of making to Quasha said statement, which like his conduct prior and subsequently thereto, implies that he had misappropriated the funds entrusted to his custody.” — The SC uses Tubb’s statement and conduct as evidence of misappropriation.

• People vs. Evangelista, 69 Phil. 583 — Distinguished; the offense charged was estafa through false pretenses, not malversation, so it was not in point.
• U.S. vs. Bleibel, 34 Phil. 227 — Distinguished; it involved a commission agent, a demand not shown to have reached him, payment before information, and an unsettled salary account, none of which obtained here.

• Article 315, paragraph 1(b), Revised Penal Code — Punishes estafa by misappropriating or converting money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same. The information charged this paragraph, and the SC convicted Tubb under it after finding misappropriation.
• Article 315, paragraph 2(a), Revised Penal Code — Punishes estafa by false pretenses or fraudulent acts executed prior to or simultaneously with the fraud, such as using a fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency, business, or imaginary transaction, or similar deceits. The CA convicted Tubb under this paragraph, but the SC held the conviction invalid because the information did not allege these elements and the offense is distinct from paragraph 1(b).
• Constitutional right to be informed of the nature and cause of the accusation — The SC held that convicting Tubb under paragraph 2(a) when the information charged only paragraph 1(b) would violate this right, since the false pretenses essential to paragraph 2(a) were not alleged.
• Indeterminate Sentence Law — The CA applied it to impose an indeterminate penalty of 4 months of arresto mayor to 1 year and 1 day of prision correccional; the SC affirmed the decision in all other respects.