G.R. No.

L-12453 July 15, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
PEDRO LAHOYLAHOY and MARCOS MADANLOG, defendants-appellants.

W. A. Kincaid for appellants.

Attorney-General Avancea for appellee.

STREET, J.:

This case is submitted to the Supreme Court for review of a decision of the Court of First Instance of the
Province of Iloilo, sentencing the defendants Pedro Lahoylahoy and Marcos Madanlog to death upon a
complaint charging the crime of robbery with multiple homicide under the circumstances stated below.

It appears that in the year 1912 some ten or a dozen people were living on the small island of Sicogon, in the
jurisdiction of the municipality of Balasan, Province of Iloilo. Two of these were an aged couple named
Francisco Seran and his wife Juana. Two others were Roman Estriba and his wife Rosa. The latter couple had
two children Miguela and Bartolome, aged at that time respectively about 14 and 9 years. Upon the night of
the commission of the crime charged in the complaint the two children were staying with Juana, their
grandmother, in a house some distance removed from that occupied by Roman and Rosa and located farther
back from the shore. The grandfather, Francisco, had gone to the beach as was his custom to watch for
turtles. After the grandmother and the children had gone to rest on a mat where they slept together, and
probably only a short while after it had become dark, the two accused appeared and demanded money of
Juana. She gave them P100 in money in response to this demand, and the accused then required the three to
leave the house and go in the direction of the sea. When the party had arrived at or near the beach, a further
demand was made upon the old woman for money, which demand she was unable to comply with.
Lahoylahoy then struck her with a bolo just below her breast, killing her instantly. The two children were at
the time close to their grandmother, and being greatly frightened, they ran away separately for some
distance and remained hidden during the night in the bushes.

The next morning the children made their way to the house where the old couple had lived, which was
vacant; but they there found each other and proceeded together to the house of their parents. Going in that
direction they stopped at the house of their sister, the wife of the defendant Madanlog. When they went a
little later to the house where their parents had lived, the fact was revealed that Francisco, Roman, and Rosa
had also been killed. All the bodies were collected and buried early in the morning by the two accused,
assisted by Eugenio Tenedero, son-in-law of Lahoylahoy. The two children Miguela and Bartolome say that
they were threatened with death if they should make complaint. Nevertheless their lives were spared, and
for sometime they stayed with their sister in the home of Madanlog; and after staying for a long time on the
island, they were afterwards taken to the home of another sister, named Dionisia Estriba, at Escalante, on the
Island of Panay. They here revealed the facts above narrated. This sister, Dionisia, afterwards filed the
complaint in this case. Pedro Lahoylahoy was arrested first; and when he was examined before the justice of
the peace, he made a confession in which he stated that the four deceased persons had been killed by
Madanlog, with is assistance.

At the trial the two children gave a very consistent account of the robbery and of the murder of their
grandmother; but the boy said that he did not remember that Madanlog was present when Lahoylahoy
struck the fatal blow. Another important witness for the prosecution was Eugenio Tenedero, the son-in-law
of Lahoylahoy. This witness testified that the defendants killed the four deceased persons, and that early in
the morning they came to his house and required him to help them bury the dead, which he did. The accused
gave no explanation to Tenedero of their motive or of the reason for the commission of the deed, and told
him not to tell anybody. During the next day or two after the tragedy above narrated, the defendant
Madanlog went to the house where Francisco and Juana had lived and carried away some palay, some dawa,
three pigs, and a trunk containing wearing apparel. We believe that the asportation of these things should
not be considered as a continuation of the acts of robbery and murder previously committed, but rather as a
spoliation of the state of a deceased person. It results that the only property taken in the act of robbery was
the P100 obtained from Juana.

As against Madanlog, the case rests chiefly upon the testimony of Miguela, who says he was present at the
robbery and at the murder of Juana. His guilt is also indicated by his own conduct subsequent to the murder.
We are satisfied with the conclusion reached by the lower court with respect to the sufficiency of the
evidence, and we have no doubt of the guilt of both the accused.

An important question arises upon the matter of the complaint in connection with the proof as to the
ownership of the property which was taken by the accused. The part of the complaint here material to be
considered reads as follows:

The aforesaid accused taking advantage of the darkness of the night, voluntarily, illegally, and
criminally and by means of force on the things, took and appropriated to themselves with intent of
gain and against the will of the owner thereof, the sum of P100, 5 bayones of palay,
4 bayones of dawa, and 1 trunk which contained various wearing apparel, of the total value of P150,
the property of Roman Estriba; in consequence thereof and on the occasion of the said robbery, the
aforesaid accused criminally and with known premeditation and treachery, killed Roman Estriba,
Rosa Galoso, Francisco Seran, and Juana.

According to the proof the person robbed was Juana; while the complaint charges that the property
taken belong to Roman Estriba. What is the effect of this variance between the language of the
complaint and the proof? Subsection 5 of section 6 of General Orders No. 58 declares that a
complaint or information shall show, among others things, the names of the persons against whom,
or against whose property, the offense was committed, if known. The complaint in this case
therefore properly contained an averment as to the ownership of the property; and upon principle,
in charging the crime of robbery committed upon the person, the allegation of the owner's name is
essential. But of course if his name cannot be ascertained, it may be alleged that it is unknown.

From the fact that the name of the injured person may, in case of necessity, be alleged as unknown it
should not be inferred that the naming of such person, when known, is of no importance. Where the
name of the injured party is necessary as matter of essential description of the crime charged, the
complaint must invest such person with individuality by either naming him or alleging that his name
is unknown. (Wharton, Criminal Pleading and Practice, 9th ed., secs. 111, 112.) It is elementary that
in crimes against property, ownership must be alleged as matter essential to the proper description
of the offense.

To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious

mischief, etc., the property obtained must be that of another, and indictments for such offenses
must name the owner; and a variance in this respect between the indictment and the proof will be
fatal. It is also necessary in order to identify the offense. (Clark's Criminal Procedure, p. 227. See
also page 338.)
Now a complaint charging the commission of the complex offense of robbery with homicide must necessarily
charge each of the component offenses with the same precision that would be necessary if they were made
the subject of separate complaints. It is well recognized in this jurisdiction that where a complex crime is
charged and the evidence fails to support the charge as to one of the component offenses the defendant can
be convicted of the other. The mere circumstance that the two crimes are so related as to constitute one
transaction in no way affects the principles of pleading involved in the case. To permit a defendant to be
convicted upon a charge of robbing one person when the proof shows that he robbed an entirely different
person, when the first was not present, is violative of the rudimentary principles of pleading; and in addition,
is subject to the criticism that the defendant is thereby placed in a position where he could not be protected
from a future prosecution by a plea of former conviction or acquittal. If we should convict or acquit these
defendants today of the robbery which is alleged to have been committed upon the property of Roman
Estriba, it is perfectly clear that they could be prosecuted tomorrow for robbery committed upon the
property of Juana; and the plea of former jeopardy would be of no avail.

Reference to a few accredited decisions from American courts will make this clear.

In Comm. vs. Hoffman (121 Mass., 369), it was held that an acquittal on an indictment for breaking and
entering the dwelling house and stealing therein, the property of A, is no bar to a complaint for stealing in the
same dwelling house at the same time the property of B, without proof that A and B are the same persons.

In Comm. vs. Andrews (2 Mass., 409), the defendant in an indictment for receiving stolen goods which were
the property of A, alleged that he had been convicted of receiving stolen goods the property of B. The plea
was adjudged insufficient, although it was alleged that the two parcels of stolen goods were received by the
defendant of the same person, at the same time, and in the same package, and that the act of receiving them
was one and the same.

In Alexander vs. State (21 Tex. Cr. App., 406; 57 Am. Rep., 617), it was held that where the goods of two
different owners were stolen at the same time, an acquittal on an indictment for stealing the goods of one
would not constitute a bar to an indictment for stealing the goods of the other; though it was observed that if
the defendant had been convicted upon the first trial, he would have been protected from the second
prosecution. (See Wrightvs. State, 17 Tex. Cr. App., 152.)

In Comm. vs. Wade (17 Pick. [Mass.], 395), the offense of burning a building was charged, and the indictment
stated that the owner was a certain individual (naming him). It was held that, although the name might
possibly have been omitted altogether, yet as the indictment did allege the name, the allegation of
ownership was material, being descriptive of the offense, and must be proved.

It should be borne in mind that the plea of former conviction or acquittal, or former jeopardy, is supposed to
be proved by the pleadings and judgment in the former case, supplemented only by proofs showing the
identity of the party, or parties. Courts are not accustomed to determine the plea of former jeopardy by
examining the proof to discover just what facts may have been developed in the former case.
(Henry vs. State, 33 Ala., 389; Grishamvs. State, 19 Tex. Cr. App., 504.) In fact it is not always practicable or
even possible to produce for inspection upon the trial of this issue the evidence which was adduced in court
at the trial of the former case.

The second sentence of section 7 of General Orders No. 58 declares that when an offense shall have been
described with sufficient certainty to identify the act, an erroneous allegation as to the person injured shall
be deemed immaterial. We are of the opinion that this provision can have no application to a case where the
name of the person injured is matter of essential description as in the case at bar; and at any rate, supposing
the allegation of ownership to be eliminated, the robbery charged in this case would not be sufficiently
identified. A complaint stating, as does the one now before us, that the defendants "took and appropriated
to themselves with intent of gain and against the will of the owner thereof the sum of P100" could scarcely
be sustained in any jurisdiction as a sufficient description either of the act of robbery or of the subject of the
robbery. There is a saying to the effect that money has no earmarks; and generally speaking the only way
money, which has been the subject of a robbery, can be described or identified in a complaint is by
connecting it with the individual who was robbed as its owner or possessor. And clearly, when the offense
has been so identified in the complaint, the proof must correspond upon this point with the allegation, or
there can be no conviction.

In United States vs. Kepner (1 Phil. Rep., 519), this court had before it a case where the defendant was
charged with estafa in the misappropriation of the proceeds of a warrant which he had cashed without
authority. It was said that the erroneous allegation in the complaint to the effect that the unlawful act was to
the prejudice of the owner of the check, when in reality the bank, which cashed the warrant was the sufferer,
was immaterial. This observation was, we think, correct as applied to that case, for the act constituting the
offense of estafa was described in the complaint with sufficient fullness and precision to identify the act,
regardless of the identity of the offended person. Section 7, General Orders No. 58, was therefore properly
applicable. It should be added, however, that the observation to which reference has been made was, strictly
speaking, unnecessary to the decision, for it is further stated in the opinion that there was in fact an injury to
the owner of the check, which consisted of the "delay, annoyance, and damage caused by the unlawful
misappropriation of the warrant." (U.S.vs. Kepner, 1 Phil. Rep., 519, 526.) There is evidently nothing in the
case cited which can afford support for the idea that an erroneous allegation in a complaint as to ownership
of the property robbed is immaterial. If we should hold that a man may be convicted of robbing one person
when he is charged with robbing another, the complaint instead of being a means of informing him of the
particular offense with which he is charged would rather serve as a means of concealing it.

It is important to note that the complaint in this case is not defective in form, for the charge is clear, direct,
and unambiguous. No formal objection could possibly be made by the defendants to this complaint; and their
only course, if desirous of making any defense, was to plead not guilty, as was done in this case. The difficulty
of the case arises from the facts adduced in evidence. Section 10, General Orders No. 58, declares that no
complaint is insufficient by reason of a detect in matter of form which does not tend to prejudice a
substantial right of the defendant upon the merits. This provision has no application to such a case as that
now before us; and all arguments based upon the circumstance that the defendants made no objection to
the complaint in the Court of First Instance are irrelevant to the matter in hand.

The case of United States vs. Manalang (2 Phil., Rep., 64) has been called to our attention as an authority
upon the point that insufficiency of a complaint is waived by failure of the defendant to object thereto in the
Court of First Instance. It there appeared that the statutory offense with which the defendant was charged
could only be committed by a Constabulary officer. There was no allegation in the complaint that the
defendant was such; but he appeared at the trial, testified in his own behalf, without questioning his
character as such officer. It was held upon appeal that the objection to the complaint on the ground stated
was unavailing, "as no exception was taken to this defect by counsel for the defendant in the court below, in
which it might have been successfully raised by demurrer."

The following cases are also found in our Reports, showing that a complaint may be held sufficient although
the commission of the offense is charged by inference only, provided no objection is made in the court
below. (U.S.vs. Cajayon, 2 Phil. Rep., 570; U.S. vs. Vecina, 4 Phil. Rep., 529; U.S. vs. Sarabia, 4 Phil. Rep., 566.)
In all of these cases the complaint was demurrable for defect of substance, but the language used was so far
sufficient that the commission of the crime could be inferred. These cases are not relevant to the case at bar,
as the complaint is not demurrable for defect of any sort.
In the light of what has been said it is evident that, by reason of the lack of conformity between the
allegation and the proof respecting the ownership of the property, it is impossible to convict the two accused
of the offense of robbery committed by them in this case; and therefore they cannot be convicted of the
complex offense of robbery with homicide, penalized in subsection (1) of article 503 of the Penal Code. No
such difficulty exists, however, with respect to the quadruple homicide committed upon the persons named
in the complaint; and in conformity with the provisions of article 87 of the Penal Code, the penalties
corresponding to all these crimes must be severely imposed. This court has already held in United
States vs. Balaba (37 Phil. Rep., 260), that where more than one offense (not complex offenses) are charged
in the complaint, and the accused fails to demur or ask for a severance, the penalties corresponding to all of
the offenses which are charged and proved may be imposed. The doctrine announced in that case applies
with even greater propriety offenses in one complaint. (See sec. 11, General Orders No. 58.)

The acts causing the violent death of the four deceased must be qualified as homicide, as the record does not
satisfactorily show how and in what manner they were executed.

Even conceding the benefits or article 11 of the Penal Code, this circumstance, as regards both defendants is
counterbalanced by the aggravating circumstances of nocturnity and that the crime was committed in an
uninhabited place, and, as respects Marcos Madanlog, by that of relationship by affinity. The accused Pedro
Lahoylahoy has accordingly become liable to four penalties, each of seventeen years four months and one
day,reclusion temporal, and his co-accused Marcos Madanlog also, to the same number of penalties of
twenty years each, reclusion temporal, for the homicide of the four deceased, each also being liable to one-
half of the costs.

In view of rule 2 of article 88 of the Penal Code, inasmuch as the maximum duration of three times the length
of the most severe of the penalties to be imposed upon the accused exceeds forty years, the judgment
reviewed is reversed, and we find that each of the accused Lahoylahoy and Madanlog should be, as they are
hereby, sentenced to suffer of aforesaid penalties of reclusion temporal, not to exceed forty years, to the
accessories prescribed by article 59, to indemnify, severally and jointly, the heirs of each of the deceased in
the amount of P1,000 and each to pay one-half of the costs of both instances. So ordered.

Arellano, C.J., Torres, Johnson and Araullo, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

The defendants were charged in the Court of First Instance of Iloilo with the crime of robbery with murder.
The crime took place on a small island where the deceased lived together. The defendants were found guilty
and given the death penalty. The proof in relation to the law shows conclusively that they merit such
punishment.

The information charged that the owner of the property was Roman Estriba while the evidence disclosed that
the owner was Juana N. Seran. No objection to the information was made in the lower court. Objection to its
insufficiency was therefore waived. (U.S. vs. Manalang [1903], 2 Phil. Rep., 64.) Notwithstanding, and
although neither the attorney for the defendant nor the Attorney-General raises the point on appeal, this
court would, by hypercritical examination, now solemnly adjudge the information to be fatally defective and
would thereby cheat the gallows of its prey. Conceding that the court has this prerogative, yet no substantial
right of the defendants was prejudiced. Neither the trial court, the prosecution, nor the defense were misled
as to the issue being that robbery and murder were simultaneously committed. As to which one of the group
had title to the property was relatively unimportant. Such a technical finding in my judgment violates both
the letter and the spirit of our law and jurisprudence. "The bill of rights for the Philippines giving the accused
the right to demand the nature and cause of the accusation against him does not fasten forever upon those
Islands the inability of the seventeenth century common law to understand or accept a pleading that did not
exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert."
(Paraiso vs. U.S. [1907], 207 U.S., 368; Whitehead vs. U.S. [1917], 245 Fed., 385; and a multitude of
corroborative authority.) To liberalize and modernize procedure should be our goal.

Judgment should be affirmed.

Fisher, J., concurs.

THE UNITED STATES, complainant-

appellant,
vs.
THOMAS E. KEPNER, defendant-
appellee.
G.R. No. L-571
Smith, J.
9 December 1902

Republic of the Philippines

Supreme Court
Manila
En Banc

Office of the Solicitor-General Araneta, for appellant.

Frederick Garfield Waite, for appellee.

SMITH, J.:
 Thomas E. Kepner, an attorney-at-law, was charged in the Court of First Instance of the city of
Manila with the crime of estafa, alleged to have been committed by him by indorsing a warrant of
the Insular Government made payable to his client, Aun Tan, and collecting and appropriating to his
own use the amount due thereon without the authority or consent of the latter.

The accused was tried on the charge and after hearing the evidence of both sides the trial judge
was of the opinion that there was evidence tending to show that the appropriation of the amount of
the warrant was made under a bona fide claim of right. He therefore acquitted the defendant and
the fiscal appealed.

Wong Cheong and Aun Tan, Chinese bakers, were charged before a military commission with
illegally having in their possession some four hundred sacks of commissary flour, the property of the
United States, against the statute and military regulations in such cases made and provided. On
March 24, 1901, while they were in confinement, O.C. Hing, a Chinese friend of the parties, retained
Kepner to obtain their release on bail and to defend them before the military court. It was agreed
that the attorney should receive for his professional services $300, Mexican, cash, and $700, Mexican,
additional on condition that he save Wong Cheong and Aun Tan from fine or imprisonment, and
secured the release of the flour which had been seized by the authorities. After obtaining the release
of his clients on $3,000, Mexican, bail and taking their statements, Kepner came to the conclusion on
the 1st of May, 1901, that both were guilty of the offense with which they were charged and that in
no event would he be able to procure a release of the flour. He therefore told the accused Chinamen
as well as Hing that it was absolutely out of the question to stand by the original agreement, and
offered to return the $300 which had been already paid. He finally allowed himself, however, to be
persuaded to continue with the case for a consideration, which he says was an unconditional fee of
$500 payable on the determination of the cause. Hing says no agreement for an unconditional fee
was ever made. His story is that after Aun Tan had been released on bail Kepner declared that he
could not get the flour back and proposed that contingency should be eliminated from their
understanding. To this proposition Hing consented and Kepner agreed to secure Wong Cheong and
Aun Tan against fine or imprisonment for the sum of $500 in addition to what he had previously
received. The trial of the two men took place about the 4th of May, 1901, and resulted in the acquittal
of Wong Cheong and the conviction of Aun Tan, who was fined $1,000, gold, and paid it.

On the 9th of May Kepner sent Hing a bill for services in re the United States vs. Wong Cheong and
Aun Tan, as per agreement, $500. Hing flatly refused to pay the account on the ground that Aun Tan
had been fined and that there was nothing due under the terms of the contract. On June 20 Kepner
apparently yielded the point, for on that date he borrowed from Hing, his alleged debtor, $150, which
he promised to repay on or before the 20th of July next insuing. This he would scarcely have done if
Hing had been indebted to him at the time in the sum of $500 for services which he asserted had
been then fully completed.

On the first of July, 1901, Hing went to the office of Kepner and asked him to make an effort to get
the fine remitted and the confiscated flour returned. Hing says Kepner agreed to obtain the
restoration of the fine and the and the flour for the sum of $1,000, Mexican. Kepner says he agreed
to get back the fine for consideration of $500, Mexican, and that no agreement had been reached
on the flour proposition nor anything said on the subject beyond a conversation touching the making
of an application for its recovery, and an offer for its part to do the work for $500. Kepner presented
his petition for the remission of the fine, but for it had been acted upon officially, so far as appears
from the evidence, he again made a demand on Hing for money, which was refused. Considering,
however, that the appellant had obtained the acquittal of Wong Cheong, Hing allowed him $250 in
settlement of the second contract, and the offer would appear to have been finally and definitely by
Kepner in his letter of the 12th of August, 1901, in which he says:

DEAR MR. HING: I am surprised that you should say that you only owe me $250, but until the fine
is returned I will let it go that way.

I have received from you $150.00

Clothes 36.00
Balance due on collections 21.25
207.25
Balance due me 42.75
Please pay balance of $42.75 to Mr. Denmar, and oblige,

Yours, respectfully, etc.,

THOMAS E. KEPNER.

The sum of $42.75 was paid by Hing as directed by this letter, and on the 12th of August, 1901, all
sums then due from Hing to Kepner had been paid, and Hing so understood it.

Two days later, namely, on the 14th of August, 1901, although he had not yet received the return
of the fine, Kepner notified Hing that the military authorities had remitted the fine and requested
him to call the next day and pay his bill in this case, amounting as per agreement to $750, Mexican
currency, apparently reviving his claim under the second contract and adding $500 for an alleged
completion of the third contract. Hing refused to pay, saying that nothing was due or would become
due until the fine and the flour were recovered.

On the 24th of August Kepner received $200 from Hing as a loan, according to the latter, as a
payment on the second contract, according to the former. How anything could have become due in
view of the settlement of August 12, 1901, and in view of the fact that the fine had not been repaid,
does not appear.

Although the fine was remitted and an order made for its return, Kepner found that the money had
been turned into the Insular Treasury, and that he could not get it without an act of the Commission
authorizing its payment. The mere fact that this formal act of the Commission was required to get
money out of the Treasury caused Kepner, if he is to be believed, to despair of ever recovering the
fine and he threw up the case. According to his account he was induced to take it up again, however,
for a consideration, to wit, 50 percent of the amount recovered, which he says Hing agreed to pay.
Hing says he did nothing of the kind. However that may be, the appellant wrote a letter to General
Chaffee, asking to refer the matter to the Commission for an appropriation bill, and on the 20th of
September a warrant in favor of Aun Tan for $1,000, gold, was drawn on the Insular Treasury by the
Civil Governor and countersigned by the Auditor. The Treasurer, on the face of the warrant, executed
an order to the Chartered Bank of India, Australia and China to pay the warrant, and the same was
then delivered to Kepner. Kepner requested Aunt Tan to either indorse it or give him power to cash
it, and Aun Tan positively refused to comply. Kepner then told Hing that he would put the warrant in
his safe until they could reach some agreement. On the 23rd of September the following letter was
written to Hing by Kepner:

Mr. O.C. HING,

Calle Magallanes, No. 19, Intramuros.

MY DEAR SIR: I have to inform you that if you do not settle your account with me before Tuesday
noon (September 24) or indorse the draft I hold I shall sue you and foreclose my lien on the draft.

Yours respectfully, etc.,

THOMAS E. KEPNER.

On the very same day, September 23, without waiting until the following day, as indicated in his
letter, Kepner, in the very teeth of Aun Tans refusal to indorse the draft or to authorize its collection,
wrote Aun Tans name on the back of it by himself as attorney, presented it to the bank, represented
that he had a power of attorney to make the indorsement, and had the full amount of the warrant
credited to his account. He would not say that this account then amounted to more than $5.40.

On the very same 23d day of September, exclusive of the check of Hing, he drew checks against the
$1,000, gold, or $2,000, Mexican, so credited to him, for more than $1,217.50, Mexican, to pay
personal bills, so that on the 24th of September, when he handed Hing a check for $450, Mexican,
and his receipted bill for $1,550, Mexican, the whole $2,000, Mexican, had not only been actually
appropriated but more than $1,200, Mexican, of the sum had been actually expended by Kepner in
payment of personal accounts.

The sums paid by Hing to Kepner were $300 retainer on the first contract $250 for the acquittal of
Wong Cheong under the second contract, and $200 advanced on the third contract for the return of
the fine and the flour $750 in all. According to Kepner there accrued to him $300 for his retainer on
the first contract, $500 under the second contract which he claims was unconditional, $1,000 for
having secured the return of the fine, and $500 for having attempted to obtain the redelivery of the
flour, which feat, he says, he knew could not be accomplished, and for the doing of which, he says,
he never had any understanding whatever with either Hing, Wong Cheong or Aun Tan $2,300 in all.
He admits receiving from Hing the sum of $750, leaving a balance of $1,550, which he paid to himself
by cashing the warrant and crediting the entire proceeds to his account. That is to say, Kepners
charges for services amounted to $300 more than the whole amount of the fine.

The appellants account of his transactions with his clients is such that his credit as a witness is
wholly destroyed as to the disputed facts of the case. His own story shows him to be a man lacking in
principle and wholly unworthy of the honorable profession to which he unfortunately belongs. He
may have been entirely right in canceling his first contract to defend the accused Chinamen for a
retainer of $300 and $700 additional, contingent on the result. But why did he wait from March 24
until May 1, the eve of the trial, before doing so? Was it to diminish the chance of the engagement
of other counsel and so force his clients to accept such terms as he might offer? He may not have
been actuated by any such motive, but in view of his subsequent conduct it smacks of it. The
circumstances may have justified his agreeing for a fee of $500 to obtain a return of the fine which
had been justly imposed on Aun Tan, whom he knew to be guilty, but what is his justification for
breaking his agreement in the very moment of success and forcing his clients to agree to pay double
his fee for the very same service? Why did he state to Hing after the fine had been remitted by
competent authority that he could not recover the money when all that remained to be done was a
mere authorization of the Commission which would have been conceded, as it was, for the bare
asking? Was it to give him an excuse to extort from his clients an additional fee of $500 for the very
trivial service of writing a letter to General Chafee asking him to notify the Commission that the fine
had been remitted in order that an appropriation bill might be passed enabling the withdrawal of the
money from the Insular Treasury? What right did he have to collect $500 for endeavoring to obtain a
return of the confiscated flour, a charge which he admits was for a service impossible of
accomplishment and wholly unwarranted by any understanding whatever with his clients? But if he
can fairly explain all this, under what rule of law or morals does he justify his act of representing to
the bank that he had authority from Aun Tan to collect the insular warrant when he knew that such
authority had been definitely, positively, and expressly refused?

Kepners own testimony justifies the court in concluding that he sought to take a grossly unfair
advantage of a confidential relation, and that he is unworthy of credence.

The second agreement, as testified to by Hing, is therefore accepted by the court and Kepners
account as to that agreement and the subsequent agreements is rejected. Considering that all he
accomplished for his clients was to save them from fine or imprisonment in conformity with the
second contract, and considering that he was paid $750 for the service, there only remained $50 due
him at the time he cashed the warrant. He therefore unlawfully misappropriated $1,500, viewing the
case from the standpoint that the money was the money of Aun Tan and giving Kepner credit for the
$450 check delivered to Hing. But if we admit the truth of all that the accused says, if we forget that
he took out of the warrant $500 for services rendered to secure the flour without either contract,
agreement, or understanding with his clients to justify it, if we concede that in all his transactions
with Aun Tan he acted in good faith, he is nevertheless guilty of the crime of estafa.

The warrant delivered into his hands, drawn by the Insular Government in favor of Aun Tan on the
Chartered Bank, was the property of Aun Tan, but the money which it represented was not, until it
had been delivered to the bank for payment, properly and legally indorsed by Aun Tan, or by his
authority. Aun Tan had no money in the bank and no monetary loss was inflicted on him by illegally
cashing his warrant. The injury to him was the delay, annoyance, and damage caused by the unlawful
misappropriation of the warrant. The injury to him was the delay, annoyance, and damage caused by
the unlawful misappropriation of the warrant. In a word, the bank would have been compelled to pay
Aun Tan the amount of the warrant, notwithstanding a previous payment to Kepner.

If this be so, on the undisputed facts in the case the defendant withdrew from the Chartered Bank
and appropriated to his own use $2,000, Mexican, of its funds by representing to the bank that he
had a power and authority which he did not possess, and that constitutes the crime of estafa under
the provisions of article 535, subdivision 1, of the Penal Code.
 The allegation of the complaint that the unlawful misappropriation of the proceeds of the warrant
was to the prejudice of Aun Tan may be disregarded by virtue of section 7 of General Orders, No. 58,
which declares that when an offense shall have been described in the complaint with sufficient
certainty to identify the act, an erroneous allegation as to the person injured shall be deemed
immaterial. In any event the defect, if defect it was, was one of form which did not tend to prejudice
any substantial right of the defendant on the merits, and can not, therefore, under the provisions of
section 10 of the same order, affect the present proceeding.

It has been stipulated between the appellant and the fiscal that certain affidavits may be
considered as evidence on the review and examination of the record by this court on appeal. These
affidavits show that Kepner on the 12th of October, 1901, after the question of the validity of his
indorsement had been called to his attention by the bank, volunteered to make good to the bank any
deficiency which might exist between his account and the amount of the warrant, and that to make
this amount good he deposited with the bank, after his arrest and on the 30th of October, 1901,
$2,000, Mexican. The affidavits further show that on the 10th of May, 1902, he effected a full,
voluntary, and satisfactory settlement with his client of all financial differences.

His promise to return the money about the time he was threatened with arrest, and his subsequent
return of it after his arrest, as well as the settlement of his financial differences with his clients,
constitute no defense to the crime, which, if committed at all by him, was committed on the 23rd of
September, 1901. Restitution is not even an attenuating circumstance under article 9 of the Penal
Code. It is a matter to be considered solely by the Executive in the exercise of the pardoning power.

The judgment of the lower court acquitting the defendant is reversed with costs against the
respondent.

Taking into consideration all the evidence in the case the court finds:

First. That the defendant received on the 21st of September, 1901, from the Insular Government
for the use and benefit and as the property of his client a certain warrant drawn in favor of said Aun
Tan for the sum of $1,000, gold, which the Insular Treasurer, by proper order on its face, directed the
Chartered Bank of India, Australia and China to pay to said Aun Tan.

Second. That said defendant, against the will and without the consent of said Aun Tan, wrote the
name of Aun Tan by himself as attorney on the back of said warrant and presented the same to the
said bank for payment.
 Third. That he represented and stated to said bank that he had a power of attorney from Aun Tan
to make such indorsement, and that his representation and statement to that effect to the bank was
false and untrue, as he, the said defendant, well knew when he made it.

Fourth. That in consequence of said unauthorized indorsement by the defendant and his aforesaid
false representation and statement to the bank said warrant was cashed, and the whole amount
thereof, $2,000, Mexican, credited to appellants personal account in said bank on the 23rd of
September, 1901.

Fifth. That afterwards, and on said 23rd of September, 1901, defendant used of said sum so
credited to his said account more than $1,217.50, Mexican, and possibly $1337.50, Mexican, for the
payment of personal bills and expenses.

Sixth. That on the 24th of September, 1901, defendant delivered to O.C. Hing for Aun Tan his
personal check on said bank for $450, and his receipted bill of $1,550 for services rendered, but that
said check was never cashed by Aun Tan nor was said bill for $1,550 accepted as correct or just.

Seventh. That neither on the 23rd of September, 1901, nor on the 24th of the same month and
year was any greater sum due from said Aun Tan to said defendant than the sum of $50, Mexican.

Taking into consideration the provisions of article 534, article 535, Nos. 1 and 5, and article 58 of
the Penal Code, the court finds as a conclusion of law from the foregoing facts that the defendant,
Thomas E. Kepner, willfully, illegally, fraudulently, and feloniously misappropriated and converted to
his own use said warrant and the sum of money which he collected thereon, and that he is guilty of
the crime ofestafa within the intent and meaning of article 535, subdivisions 1 and 5, of the Penal
Code.

Wherefore, by reason of the law in such cases made an provided and the articles of the Penal Code
above cited, the court orders and adjudges that the defendant, Thomas E. Kepner, be, and he is
hereby, condemned to one year eight months and twenty-one days of presidio correccional, and to
the suspension from every public office, profession, trade, and right of suffrage, with costs.

Taking into consideration that the amount collected on the warrant was returned to the bank on
the 30th of October, 1901, and that all financial differences between the defendant and Aun Tan
were finally amicably settled in May, 1902, no judgment for the return of the money is made, but it
is ordered and adjudged that the warrant which forms a part of the record herein be returned to Aun
Tan and that the clerk attach to the record a duly certified copy of said warrant in lieu thereof. So
ordered.

Arellano, C.J., Torres, Cooper, Willard, and Mapa, JJ., concur.

Ladd, J., disqualified.