People vs. Godia

pañía General de Tabacos vs. Obed, 13 Phil., 391.) The petitioner might have protected his interests by entering an attorney's lien under section 37 of the Code of Civil Procedure.

The petition for a writ of certiorari was therefore properly denied. So ordered.

Araullo, C. J., Street, Malcolm, Avanceña, Villamor, Johns, and Romualdez, JJ., concur.

Writ denied.

[No. 18974. November 20, 1922]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, vs. ANTONIO GODIA ET AL., defendants. FRANCISCO ATIENZA and JOSE TANTOCO, appellants.

1. THEFT; SURREPTITIOUS WITHDRAWAL OF GOODS FROM CUSTOMHOUSE; RESPONSIBILITY OF CHECKER OF BUREAU OF CUSTOMS.-A checker of the Bureau of Customs, charged with the duty of making deliveries of imported merchandise from a pier to persons presenting the requisite delivery permits, who surreptitiously sends out merchandise without making note of the delivery on the back of the proper permit and who, with a view to concealing the act, falsifies another delivery permit in such a manner as to cause it to show falsely that the merchandise sent out pertains to another consignment, at the same time issuing a gate pass purporting to show falsely that the goods pertain to such purported consignment, all with the evident purpose of concealing the disappearance of the goods and of assisting confederates in the misappropriation thereof, is guilty of theft, if the goods are thereby lost to the owner.

2. ID.; ID.; CRIMINAL RESPONSIBILITY OF PERSON PROCURING WITHDRAWAL. The person representing the owner in the withdrawal of the goods and who procures or assists in the surreptitious withdrawal thereof under the conditions above stated, also with the evident intention of assisting in the misappropriation thereof, is guilty of the same offense.

3 ID.; ID.; FALSIFICATION NOT ALLEGED IN INFORMATION.-In applying the penalty appropriate to qualified theft in this case, the circumstance that the offense had been accomplished by means of the falsification of a commercial document was ignored, because the falsification was not alleged in the information.

People vs. Godia

APPEAL from a judgment of the Court of First Instance

of Manila. V. del Rosario, J.

The facts are stated in the opinion of the court.

Emiliano T. Tirona and Andres R. Faustino for appellant Atienza.

Quintin Paredes for appellant Tantoco.

Attorney-General Villa-Real for appellee.

STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of the City of Manila, finding the appellants, Francisco Atienza and Jose Tantoco, guilty of the offense of theft, and sentencing the first to undergo imprisonment for two years, eight months and eleven days, presidio correccional, with the accessories prescribed by law, and the second to undergo imprisonment for five years, five months and eleven days, presidio correccional, with the corresponding accessories, and requiring each to pay severally one-fourth the costs.

As the case was presented in the court below Antonio Godia and Julian Santos were joined as codefendants with the appellants; but at the hearing in the Court of First Instance Antonio Godia was acquitted. Julian Santos was convicted, jointly with the appellants, and he was sentenced to undergo imprisonment for one year, eight months and twenty-one days, presidio correccional, with the corresponding accessories, and to pay one-fourth the costs. From said judgment Julian Santos appealed, but his appeal was dismissed by this court for failure of his attorney to file his brief in this court within the time allowed by the rules, with the consequence that his case is not now before us for review.

The offense which is the subject of this prosecution is alleged to consist of the furtive withdrawal by the accused of two cases of merchandise from pier 5 in the city of Manila, where said goods had been disembarked, from a ship arriving at this port, consigned to W. F. Stevenson &

People vs. Godia

Co., Ltd.; and in order to impart an adequate understanding of the case, it is necessary to give some account of the steps which have to be followed in withdrawing imported merchandise from the custody of the Bureau of Customs.

In this connection it appears that, upon the disembarkation of the goods, the consignee, or holder of the proper documents of title, is required to obtain what is called a delivery permit, issued by authority of the Insular Collector of Customs, and authorizing the delivery of the goods which are described therein.

Armed with this permit, the importer, or his agent,— usually a customs broker or the representative of such,— presents himself at the pier and requests delivery of the goods. The customs checker on the pier takes the permit and when the property called for is identified, allows it to be sent out, making the proper record of deliveries on the back of the permit. At the same time it is the duty of the checker who makes the delivery to fill out and sign a gate pass, in the form of Exhibit A-1, stating the number of packages to be taken away. As the merchandise is carried out, the gatekeeper counts the packages and, if the number is in conformity with the gate pass, they are allowed to pass out. Both the record of deliveries and the gate pass are required to be verified by the signature, or initials, of the person effecting withdrawal. As the merchandise passes out the gate, custody is finally transferred to the importer or his agent, and the responsibility of the Collector of Customs ceases.

Passing now to the concrete facts of the present case, we find that in the latter days of April, 1921, certain merchandise consigned to W. F. Stevenson & Co., Ltd., of Manila, consisting of eight cases of cotton textiles and 75 cases of lanterns, was disembarked at pier 5 from the steamer Katuna; and two separate delivery permits were issued by the Collector of Customs, authorizing the withdrawal of said merchandise from the customhouse. In order to get the goods out, W. F. Stevenson & Co., Ltd., engaged the services of a firm of customs brokers, consisting of Angel

People vs. Godia

Jose and Hilarion Tantoco. These brokers in turn executed their agency through their employees who, in respect to these transactions, were Jose Tantoco, Julian Santos, and Antonio Godia. The first named was assigned to pier 5, and it was his duty, as the principal representative of his employers, to attend to matters on the pier and to effect withdrawals of merchandise therefrom. Julian Santos acted as a sort of assistant to Tantoco and, in respect to the transactions presently to be mentioned, served as receiver of merchandise issuing from the gate. Antonio Godia, a chauffeur, was the driver of truck No. TG192, which was used in removing merchandise from the customhouse to the appropriate bodegas of the customs brokers or to other places where delivery should be made.

On May 6, 1921, Jose Tantoco presented himself at pier 5 with the delivery permit, dated April 30, calling for 75 cases of lanterns. This permit was placed in the hands of the checker Francisco Atienza, whose duty it became to identify the packages of lanterns and to make delivery thereof according to usual practice. Upon this occasion 72 of the packages in question were forthcoming; and these were placed upon truck No. TG192 on the pier. In making record of this delivery on the back of the delivery permit, the checker incorrectly noted only 70 cases as having been delivered to Jose Tantoco, and to the right of this entry Jose Tantoco placed his initials, acknowledging the receipt of 70 cases (Exhibit B).

In connection with this delivery it should be observed that the checker, Francisco Atienza, admits that 72 cases were delivered by him; and he explains his act in noting only 70 as an unintentional error committed in the pressure of work. That 72 cases of lanterns were in fact delivered at this time is conclusively shown, not only by the gate pass upon which they were carried out but, by the records from the office of the customs brokers (Exhibit C), which show that 72 cases of lanterns belonging to W. F. Stevenson & Co., Ltd., were delivered from the customhouse and duly accounted for on May 6, 1921.

People vs. Godia

The remaining three cases of lanterns were delivered on June 4th, and their delivery was correctly noted in the record of deliveries on that date by one Latorre, another checker of the customhouse; and the fact of said delivery is corroborated, not only by the gate pass on which these three packages were carried out, but also by the records of the firm of brokers (Exhibit C), which show that on that date three cases of lanterns belonging to W. F. Stevenson & Co., Ltd., were received from the customhouse.

All of the cases in the consignment of lanterns are thus accounted for; but upon turning to the delivery permit we find noted thereon a delivery of two other cases, purporting to have been effected on May 7, 1921. The note concerning this delivery is in the handwriting of Francisco Atienza, and his initials are found in the column which should show the name of the person by whom delivery was made. This entry falls in the line immediately below the line containing the entry with respect to the delivery of 70 cases on the preceding day; and a curious circumstance is that the initials of the accused Jose Tantoco, which should have appeared after both deliveries, if both were really made, are written only once and this precisely on the dividing line between the two entries. As there were no cases of lanterns in this consignment that could have possibly been sent out on this date (May 7), the whole entry with respect to these two cases is fictitious. This conclusion is corroborated by the circumstance that the records of the firm of customs brokers (Exhibit C) contain nothing to indicate that any lanterns pertaining to this consignment were taken cut of the customhouse on that date. The significance of this false entry will be presently apparent.

Of the eight cases of textiles, called for in the delivery permit (Exhibit A), four cases were withdrawn on May 14. These are identified by their numbers as noted in the record of deliveries on the back of the delivery permit, and repeated in the records kept by the brokers (Exhibit C), thus showing that these four cases were properly withdrawn and duly accounted for to the owners.