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 Tan's refusal to indorse the draft or to authorize its collection, wrote Aun Tan's 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, Kepner's charges for services amounted to $300 more than the whole amount of the fine.
The appellant's 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?
Kepner's 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 Kepner's 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 appellant's 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 of estafa 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.
