United States vs. Dominguez

Estafa is frustrated, not consummated, where the accused performs all acts of execution that should produce the crime but no appreciable damage results due to the timely discovery of the misappropriation, a cause independent of the actor's will.

Isaac Dominguez was employed as a salesman at the bookstore Philippine Education Co., Inc. in the City of Manila. As part of his duties, he was obligated to deliver proceeds from sales to the company's cashier or an authorized representative. The case arose under the regime of the old Penal Code, then still in force, which distinguished among attempted, frustrated, and consummated offenses and which drew upon Spanish Supreme Court jurisprudence for interpretive guidance.

On the morning of January 19, 1920, Isaac Dominguez, a salesman at the Philippine Education Co., Inc. bookstore in Manila, sold five copies of Sam's "Practical Business Letters" for a total of ₱7.50. As part of his duties, he was obligated to deliver the sale proceeds immediately to the company cashier. He did not do so. The retention was discovered, and only upon being confronted did he turn over the ₱7.50 to the cashier.

Dominguez claimed that he had not delivered the money immediately because the cash boys and cashier were busy, and that he had to go to the toilet; upon coming out, the cashier caught him by the arm and asked for the money, which he then delivered. He denied any intent to use the money for himself. The evidence belied this claim. When first asked about the money, he stated that an unknown woman had bought books without paying because she was in a hurry. He then left the store to speak with a friend employed at the Pacific Mail Steamship Co., instructing him to affirm, if asked, that he had purchased books that morning. He also told the bookstore manager that he had used part of the money to purchase postage stamps.

The trial court found Dominguez guilty of consummated estafa and sentenced him to two months and one day of arresto mayor, with accessories and costs. On appeal, counsel for the accused assigned as errors the finding of guilt and the imposition of the penalty corresponding to a principal in estafa. The Supreme Court found that the accused had performed all acts of execution but that no appreciable damage had been caused to the company due to the timely discovery of his acts.

• Error in Finding of Guilt: Counsel for the accused argued that the trial court erred in finding the accused guilty of the crime charged.
• Error in Imposition of Penalty: Counsel maintained that the trial court erred in imposing upon the accused the penalty corresponding to a principal in the crime of estafa.

• Stage of the Offense: Whether the accused's retention of the sale proceeds, with delivery to the cashier occurring only after discovery of the non-delivery, constitutes consummated or merely frustrated estafa.

• Stage of the Offense: Frustrated estafa. The accused performed all acts of execution that should have produced the crime, but it was not consummated because no appreciable damage resulted due to the timely discovery of the misappropriation—a cause independent of the actor's will.

• Stage of the Offense: The Court applied the doctrine articulated by the Spanish Supreme Court in its decision of January 3, 1876, and in the cases discussed in Viada's Commentaries on the Penal Code. Under that doctrine, an offense is frustrated when the accused performs all acts of execution which would have produced the crime as a consequence, yet the crime is not produced by reason of causes independent of the actor's will. In the Spanish Supreme Court's ruling involving the substitution of an oil painting, the court held that although the depositary performed all acts aimed at converting the painting to his own use, the crime was merely frustrated because the owner recovered the original without objection or juridically appreciable delay after the substitution was discovered. Similarly, in the case of the commissioner caught by authorities while extorting money, the court held the offense frustrated because the appearance of agents prevented complete divestment of the owner's money. Applying this doctrine to the case at bar, the Court found that Dominguez performed all acts of execution—receiving the sale proceeds and failing to deliver them to the cashier with intent to misappropriate—but the crime was not consummated because no appreciable damage was caused to the company, damage being an essential element of estafa, due to the timely discovery of his acts. The offense was therefore frustrated, not consummated.

• Frustrated vs. Consummated Estafa — An offense is frustrated when the accused performs all acts of execution which should produce the crime as a consequence, but the crime is not produced by reason of causes independent of the will of the actor. In estafa, where the accused performs all acts of misappropriation but no appreciable damage results to the offended party due to timely discovery, the crime is merely frustrated and not consummated, because damage is an essential element of consummated estafa. The Court applied this doctrine by holding that Dominguez's retention of the ₱7.50 sale proceeds, discovered before any appreciable loss accrued to the company, constituted frustrated rather than consummated estafa.

• "Applying the doctrine, established by the supreme court of Spain in the decisions cited, to the case at bar, we are of the opinion, and so hold, that the appellant is guilty of the frustrated offense of estafa of 37 ½ pesetas, inasmuch as he performed all the acts of execution which should produce the crime as a consequence, but which, by reason of causes independent of his will, did not produce it, no appreciable damage having been caused to the offended party, such damage being one of the essential elements of the crime, due to the timely discovery of the acts prosecuted." — This is the ratio decidendi of the case, articulating the controlling distinction between frustrated and consummated estafa based on whether appreciable damage resulted.

• "the offense is frustrated when the accused performs all the acts of execution which would have produced the crime, and, nevertheless, do not produce it by reason of causes independent of the will of the actor" — This passage, drawn from the Spanish Supreme Court decision of January 3, 1876, states the canonical formulation of frustrated offense that the Court adopted and applied.

• Spanish Supreme Court decision of January 3, 1876 — Cited as controlling foreign authority for the proposition that an offense is frustrated when all acts of execution are performed but the crime is not produced due to causes independent of the actor's will. The case involved an attempted taking of merchandise bundles at a station using a tag taken from the mail; the bundles had already been withdrawn by the consignee.
• Decision of the Madrid court affirmed on appeal by the Spanish Supreme Court (Nuñez painting substitution case, discussed in 1 Viada, 65) — Followed as persuasive authority. The Spanish Supreme Court held that the substitution of an original oil painting with a copy constituted frustrated, not consummated, estafa, because the owner recovered the original without juridically appreciable delay after discovery.
• Decision of the criminal branch of the Court of Seville, affirmed on appeal by the Spanish Supreme Court (extortion by treasury commissioner, discussed in Viada, Suppl. 1887-1889, p. 8) — Followed as persuasive authority. The Spanish Supreme Court held that a commissioner caught by authorities while extorting money committed frustrated estafa, because the appearance of agents prevented complete divestment.

• Article 3, Spanish Penal Code (old Penal Code) — Referenced through the Spanish Supreme Court decisions as the provision defining frustrated offenses. The Court applied its framework—offenses are frustrated when all acts of execution are performed but the crime is not produced by causes independent of the actor's will—to classify Dominguez's conduct as frustrated estafa rather than consummated.

Mapa, C.J., Araullo, Street, and Malcolm, JJ., concurred.