Gamboa vs.

CA (1975)

Summary Cases:

● Gamboa vs. Court of Appeals

Subject: Plurality of crimes; Continuous crime; Misappropriation of deposits committed on different

occasions are treated as separate and distinct offenses and not a continuous offense; Estafa under
Article 315, par 1(b), breach of confidence takes the place of deceit (fraudulent intent); Characterization
of a crime as continuing or transitory is only for determining the proper venue or jurisdiction

Facts:

Benjamin Lu Hayco was an employee of Units Optical Supply Company. According to the owner, Hayco
thru fraud, deceit and machinations, duped him into affixing his signature and thumbprint on a general
power of attorney. With the use of this deed, he opened accounts in his own name. He thereafter
collected and received payments from customers and deposited it to his personal account.

After the preliminary investigation, the Office of the City Fiscal filed seventy-five cases of estafa against
Hayco, all of which are cases of estafa with different dates and amounts.

Because of this, Hayco filed a petition for prohibition with preliminary injunction before the court claiming
that the filing of the seventy-five cases of estafa is oppressive and that they were mere components of
only one crime since the same were incited by a single criminal resolution or intent.

The lower court dismissed the petition and said that the series of deposits and the subsequent
withdrawals involved in the criminal cases were not the result of only one criminal impulse. He appealed
before the Court of Appeals (CA) which reversed the lower court and directed all 75 charges to be
consolidated in one information.

Hence, the present petition. The issue is whether or not the basic accusations contained in the
seventy-five informations constitute but a single crime of estafa.

Held:

Plurality of crimes

1. There is plurality of crimes or "concurso de delitos" when the actor commits various delictual acts of
the same or different kind.

2. It is provided in Article 48 of our Revised Penal Code, as amended by Act No. 4000, that "(w)hen a
single act constitutes two or more grave or less grave felonies or when an offense is a necessary means
for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied
in its maximum period."

3. The intention of the code in installing this particular provision is to regulate the two cases of
concurrence or plurality of crimes which in the field of legal doctrine are called "real plurality" and "ideal
plurality".

(i) Ideal plurality or "concurso ideal" occurs when a single act gives rise to various infractions of
law. This is illustrated by the very article under consideration: (a) when a single act constitutes two
or more grave or less grave felonies (described as "delito compuesto" or compound crime);
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 and (b) when an offense is a necessary means for committing another offense (described as "
delito complejo" or complex proper).

(ii) Real plurality" or "concurso real", on the other hand, arises when the accused performs an act
or different acts with distinct purposes and resulting in different crimes which are juridically
independent. Unlike "ideal plurality", this "real plurality" is not governed by Article 48, RPC.

Continuous crime

4. Apart and isolated from this plurality of crimes (ideal or real) is what is known as "delito continuado"
or "continuous crime". This is a single crime consisting of a series of acts arising from a single criminal
resolution or intent not susceptible of division.

5. For Cuello Calon, when the actor, there being unity of purpose and of right violated, commits diverse
acts, each of which, although of a delictual character, merely constitutes a partial execution of a single
particular delict, such concurrence or delictual acts is called a "delito continuado".

6. In order that it may exist, there should be (i) plurality of acts performed separately during a period of
time, (ii) unity of penal provision infringed upon or violated and (iii) unity of criminal intent and purpose —
which means that two or more violations of the same penal provision are united in one and the same
intent leading to the perpetration of the same criminal purpose or aim.

7. So long as the act or acts complained of resulted from a single criminal impulse it is usually held to
constitute a single offense to be punished with the penalty corresponding to the most serious crime,
imposed in its maximum period.

8. The test is not whether one of the two offenses is an essential element of the other. In People v.
Pineda, the Court even expressed that "to apply the first half of Article 48, . . . there must be singularity
of criminal act; singularity of criminal impulse is not written into the law."

9. Prior jurisprudence holds that where the defendant took the thirteen cows at the same time and in the
same place where he found them grazing, he performed but one act of theft. Or, the act of taking the two
roosters, in response to the unity of thought in the criminal purpose on one occasion, constitutes a single
crime of theft. The act of taking the roosters in the same place and on the same occasion cannot give
rise to two crimes having an independent existence of their own, because there are not two distinct
appropriations nor two intentions that characterize two separate crimes.

Misappropriation of deposits committed on different occasions are treated as separate and

distinct offenses and not a continuous offense

10. In the present case, the daily abstractions from and diversions of the deposits made by the
customers of the optical supply company from October 2, 1972 to December 30, 1972, which We
assume ex hypothesi, cannot be considered as proceeding from a single criminal act within the meaning
of Article 48. The abstractions were not made at the same time and on the same occasion, but on
variable dates. Each day of conversion constitutes a single act with an independent existence and
criminal intent of its own. All the conversions are not the product of a consolidated or united criminal
resolution, because each conversion is a complete act by itself. Specifically, the abstractions and the
accompanying deposits thereof in the personal accounts of private respondent cannot be similarly
viewed as "continuous crime".

11. In the above formulation of Cuello Calon, We cannot consider a defalcation on a certain day as
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merely constitutive of partial execution of estafa under Article 315, para. 1-b of the Revised Penal Code.
An individual abstraction or misappropriation results in a complete execution or consummation of the
delictual act of defalcation. Hayco cannot be held to have entertained continuously the same criminal
intent in making the first abstraction on October 2, 1972 for the subsequent abstractions on the following
days and months until December 30, 1972, for the simple reason that he was not possessed of any
fore-knowledge of any deposit by any customer on any day or occasion and which would pass on to his
possession and control. At most, his intent to misappropriate may arise only when he comes in
possession of the deposits on each business day but not in futuro, since the company operates only on a
day-to-day transaction. As a result, there could be as many acts of misappropriation as there are times
the private respondent abstracted and/or diverted the deposits to his own personal use and benefit.

12. Thus, the City Fiscal had acted properly when he filed one information for every single day of
abstraction and bank deposit made by private respondent. The similarity of pattern resorted to by private
respondent in making the diversions does not affect the susceptibility of the acts committed to divisible
crimes.

Estafa under Article 315, par 1(b), breach of confidence takes the place of deceit (fraudulent
intent)

13. It is striking to note, however, that the accusatory pleadings against Hayco are founded on Article
315, para. 1(b) of the Revised Penal Code, which defines and penalizes estafa by conversion or
misappropriation. In this form of estafa, fraud is not an essential element. "Fraudulent intent" in
committing the conversion or diversion is "very evidently not a necessary element of the form of estafa
here discussed, the breach of confidence involved in the conversion or diversion of trust funds takes the
place of fraudulent intent and is in itself sufficient. The reason for this is obvious: Grave as the offense is,
comparatively few men misappropriate trust funds with the intention of defrauding the owner; in most
cases the offender hopes to be able to restore the funds before the defalcation is discovered.

14. The view here expressed is further strengthened by the fact that of the nine paragraph of Article 535,
the paragraph here under discussion is the only one in which the words "fraud", or "defraud" do not
occur."

15. In other words, the alleged act of Hayco in causing, with intent to defraud, Lu Chiong Sun to affix his
signature and thumbprint on the general power of attorney is immaterial and ineffective insofar as the
charges of conversions are concerned. If at all, the said document may serve only the purpose of closing
the accounts of Lu Chiong Sun with the banks and nothing more. Definitely, there is no necessity for it
before Hayco could commit the acts of defalcation.

Characterization of a crime as continuing or transitory is only for determining the proper venue
or jurisdiction

16. The characterization or description of estafa as a continuing offense cannot be validly seized upon
by Hayco as basis for its inference that the acts of abstraction in question constitute but a single
continuing crime of estafa. The sole import of this characterization is that the necessary elements of
estafa may separately take place in different territorial jurisdictions until the crime itself is consummated.
The moment, however, that the elements of the crime have completely concurred or transpired, then an
individual crime of estafa has occurred or has been consummated.

17. The term "continuing" here must be understood in the sense similar to that of "transitory" and is only
intended as a factor in determining the proper venue or jurisdiction for that matter of the criminal action
pursuant to Section 14, Rule 110 of the Rules of Court. This is so, because a person charged with a
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transitory offense may be tried in any jurisdiction where the offense is in part committed. In transitory or
continuing offense in which some acts material and essential to the crime and requisite to its
consummation occur in one province and some in another, the court of either province has jurisdiction to
try the case, it being understood that the first court taking cognizance of the case will exclude the other.

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