8/14/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 2

242 PHILIPPINE REPORTS ANNOTATED

United States vs. Atienza

[No. 1043. May 15, 1903.]

THE UNITED STATES, complainant and appellant, vs.

JULIAN ATIENZA, defendant and appellee.

1. CRIMINAL LAW; ROBBERY; ESTAFA.—A secret-service

agent, acting under orders from military authorities, who
seizes moneys in a dwelling house and appropriates a part
thereof to his own use before turning over the balance to
his superiors is not guilty of robbery.

2. ID.; ID.—The unlawful taking of property is an essential

part of the crime of robbery, and where the taking was
lawful and the unlawful misappropriation was subsequent
to such taking the crime is not robbery.

Per TORRES, J., dissenting:

3. ID.; ID.—Where a secret-service agent makes search for

and seizes moneys under orders, and in so doing fails to
comply with the formalities required by law as to counting
the same, the taking is unlawful, and where the lucri
causa is evidenced by a misappropriation of a part of the
money the crime is robbery.

APPEAL from a judgment of the Court of First Instance of

Batangas.
The facts are stated in the opinion of the court.
Solicitor-General Araneta, for appellant.
F. G. Waite, for appellee.

MAPA, J.:

The accused was acquitted in the First Instance of the

charge of robbery, upon which he was prosecuted. The
complaining witness and the provincial fiscal appealed
against the judgment of acquittal.
The evidence in the record shows: (1) That the accused,
who was employed as a secret-service agent by the military
www.central.com.ph/sfsreader/session/00000173ed2a5c1c3fd1e0b3003600fb002c009e/t/?o=False 1/6
8/14/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 2

authorities, received orders from Lieut. J. B. Hennesy to

seize all the money in the possession of Father Angel
Ilagan, the complaining witness, it being believed, upon
information received by the said lieutenant, that the money
referred to was the property of a revolutionary officer; (2)
that in obedience to the said order the accused, together
with three sergeants of scouts, whom the lieutenant had
put under his orders to assist him in the execution of
243

VOL. 2, MAY 15, 1903 243

United States vs. Atienza

the command, proceeded to the dwelling house of Father

Ilagan and that of Sixto Rojas, to which Father Ilagan's
family had removed, and seized a certain amount of money;
(3) that the accused appropriated part of this money before
delivering to Lieutenant Hennesy the funds seized, turning
over to him a sum less than that which was really found by
him in the house of Father Ilagan and that of his family.
The record does not disclose the exact amount of money
converted by the accused. The information charges that it
amounted to 1,381 pesos and 15½ cents. This may have
been the fact, but we do not consider the evidence
conclusive upon this point. In the document appearing on
pages 138 and 139 of the record, signed by the accused, and
which according to the testimony of Cecilio Rosal and
Marciano Argüelles, contains a statement made by the
accused before the provost judge of Lipa, Mr. Johnson, he
acknowledges and confesses that he did appropriate the
sum of 300 pesos. The authenticity of this document has
not been denied by the accused at the trial, and the
witnesses Rosal and Argüelles affirm that they were
present and heard the statement made by the accused
before the provost judge, as recorded in the said document.
Consequently, it may be regarded as proven that the
accused converted at least the sum mentioned, 300 pesos.
Nevertheless, this act does not constitute the crime of
robbery, with which the accused is charged in the
complaint. The seizure of the money in Father Ilagan's
house and that of his family was not in itself unlawful,
because it was done in obedience to a lawful order given for
that purpose by competent authority. The unlawful and
punishable appropriation took place subsequently to this
act, when the money appropriated was lawfully in the
possession of the accused. The order given to him by his
commanding officer was for the precise purpose of the
www.central.com.ph/sfsreader/session/00000173ed2a5c1c3fd1e0b3003600fb002c009e/t/?o=False 2/6
8/14/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 2

seizure of this money, and consequently the seizure in itself

does not constitute an act of unlawful taking, a necessary
element for the existence of the crime of robbery, as well
under the different cases covered by article 502 and the
other articles included in the chapter of the Penal Code,

244

244 PHILIPPINE REPORTS ANNOTATED

United States vs. Atienza

which deals specifically with robberies, as in the special

case Covered by article 206 of the said Code.
The subsequent conversion by the accused, after getting
the money into his possession, by keeping part of it instead
of turning it all over to the officer who had directed the
seizure, may perhaps constitute the crime of malversation
of public funds or that of estafa, according to whether the
accused may or may not be regarded as having been in the
discharge of the duties of a public officer when committing
the deed, and that the money converted came into his
possession by reason of his office. Upon this point we can
not at this time express an opinion, as that would be to
prejudge a question which is not presented to us for our
decision. The prosecuting attorney is at liberty to file such
information as he may see fit upon these facts.
For the reasons stated, and upon the sole ground that
the facts proven in the case do not constitute the crime of
robbery charged in the information, and without prejudice
to the presentation by the prosecuting attorney of the
corresponding information upon the facts, the judgment
appealed is affirmed, with the costs of this instance de
oficio.

Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur.

TORRES, J., dissenting:

Upon the facts proven in the case, and especially the fact
that Julian Atienza, in obedience to orders from Lieut. J.
B. Hennesy, proceeded to search the dwelling house in
which lived Father Angel Ilagan, parish priest of Lipa,
Batangas, looking for money, which, according to the
statements of Atienza, was the property of a revolutionary
officer, in the possession of the said priest; that Atienza, as
a member of the secret police, accompanied by three
sergeants of scouts, seized all the money found in the
dwelling house of Father Ilagan and that of Sixto Rojas, to

www.central.com.ph/sfsreader/session/00000173ed2a5c1c3fd1e0b3003600fb002c009e/t/?o=False 3/6
8/14/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 2

which the priest's family had removed, having used

intimidation in so doing and having made threats, revolver
in hand, against the relatives of Father Ilagan in case they
should hide or fail to point out the latter's money; and that,
without having counted the money at the time of the

245

VOL. 2, MAY 15, 1903 245

United States vs. Atienza

seizure, or at the time it was returned by Lieutenant

Hennesy to its owner, the evidence in the record
sufficiently shows that the accused appropriated at least
the sum of 300 pesos out of the total amount seized.
By the testimony of the two witnesses who were present
and heard the statements of the accused, and upon the
written statement, made and signed by the accused before
the provost judge, Mr. Johnson, and which appears on
pages 138 and 139 of the record, it is unquestionably
proven that the accused converted and appropriated the
said sum of 300 pesos, part of the money belonging to
Father Ilagan, which was seized. The authenticity of this
statement has not been denied or impugned during the
trial, and it was proven at the trial that the said priest had
a considerable sum of money in cash which was seized
during his absence.
This appropriation constitutes the crime of robbery with
personal violence, defined and punished in paragraph 2 of
article 206, in connection with article 502 and paragraph 5
of article 503, of the Penal Code. Atienza, while engaged in
the public service as a detective of the military authorities,
and therefore acting as a public officer, and on the occasion
of the search for and seizure in the house of the
complaining witness of the sum of money belonging to the
latter, appropriated and converted to his own use part of
this money lucri causa and to the prejudice of its owner.
This crime is specially defined by the law in article 206 as
robbery with personal violence, in consideration of the
character and special circumstances of the criminal act.
The search for and seizure of the money was made
without compliance with the formalities prescribed by the
law. The money was not counted in the presence of the
owner or his nearest relatives, or of two neighbors, and
therefore, notwithstanding the fact that the seizure of the
money was effected by virtue of a lawful order given by
competent authorities, the seizure was not carried out in
the manner prescribed by the law.
www.central.com.ph/sfsreader/session/00000173ed2a5c1c3fd1e0b3003600fb002c009e/t/?o=False 4/6
8/14/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 2

For this reason it can not be held that the punishable

conversion took place subsequently to the seizure of the
money by virtue of an order from competent authorities,
inasmuch as the failure to comply with the requisites
prescribed by the law, and the fact that the money seized

246

246 PHILIPPINE REPORTS ANNOTATED

United States vs. Atienza

was not counted, and that the accused was the person who
had denounced the existence of this money, raise a strong
presumption that Atienza, when carrying out the orders of
seizure, went there with the criminal intent to steal and
appropriate to his own use part of the money denounced by
him.
He availed himself of the occasion to proceed to search
Father Ilagan's house, and seized a considerable sum of
money belonging to the latter in order to appropriate (lucri
causa) the sum of 300 pesos. Although the punishable act
and unlawful conversion may not be regarded as
simultaneous, the malicious intent to keep part of the
money found is made manifest by the mere fact that the
search was conducted with unnecessary harshness and
intimidation, and that all the money found in the two
houses was seized without the same having been counted
in the presence of the parties in interest, this being an
indispensable requisite to the legality of the act.
The nature and character of the crime committed by the
accused are such that the offense does not fall within the
conditions of the law with respect to the crimes of estafa
and malversation. Persons guilty of estafa or malversation
lawfully come into the possession of the money which they
subsequently convert or embezzle. The deceit, the fraud,
and the abuse of confidence are supervenient to the
original lawful act. The policeman, Julian Atienza, did
not receive from anyone Father Ilagan's money, but, by
virtue of a lawful order, seized this money himself without
compliance with the legal requisites, and on the occasion of
his irregular compliance with this order, took and
appropriated the sum of 300 pesos, separating it from the
total amount seized.
The facts may not, perhaps, disclose all the
characteristics of a crime of robbery. Nevertheless the fact
remains that the criminal law so defines these facts in
article 206, and attributes to a public officer who so

www.central.com.ph/sfsreader/session/00000173ed2a5c1c3fd1e0b3003600fb002c009e/t/?o=False 5/6
8/14/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 2

unworthily abuses his official position a higher degree of

criminality and malice.
For these reasons, no mitigating or aggravating
circumstances having concurred in the commission of the
crime,

247

VOL. 2, MAY 15, 1903 247

Julia vs. Sotto

the writer is of the opinion that the information upon

which this trial was commenced should be sustained, the
judgment of acquittal reversed, and Julian Atienza
convicted as principal in the crime of robbery with personal
violence, and condemned to four years of presidio
correccional, with the accessories of suspension from all
public office, profession, trade, or right of suffrage, and to
the restitution of the 300 pesos to Father Ilagan, and, in
case of insolvency, to suffer the corresponding subsidiary
imprisonment, and to pay the costs of both instances.
McDonough, J., did not sit in this case.
Judgment affirmed.

_________________

© Copyright 2020 Central Book Supply, Inc. All rights reserved.

www.central.com.ph/sfsreader/session/00000173ed2a5c1c3fd1e0b3003600fb002c009e/t/?o=False 6/6