In this case the defendants, Marcelino Rivera, Quirico T. Palma, and Mar Carmen Catu were sentenced to four years, two years eleven months and te days, and one year eight months and twenty-one days, respectively, of  prision correccional,  and each to pay  one-third  the costs  of the for the crime of  estafa. Rivera and Palma appealed and have presented separate  briefs.

Counsel for Palma  insists  that the court erred  (a)  in permitting prosecuting attorney to file an amended complaint for the crime of estafa;  (b)  in finding that the proofs presented  establish of  this appellant beyond  a reasonable doubt; and  (c) in  finding that the facts alleged and established constitute the crime of estafa Counsel for appellant Rivera alleges that  the  court erred in admitting considering in this case the testimony presented in the former trial for falsification of a public document.  Two other errors are alleged which the same as (b) and (c), supra.

The two appellants were tried separately, but in view of the fact that t evidence in  each case  is the same, they will be considered together in instance.

After a careful  reading of the record in this case we are of opinion that the guilt of the appellants is fully established. The facts  necessary t disposition of the  case are as follows:  The defendants in a  certain case desired to procure an appeal bond in order to stay execution of the judgment rendered against them pending an appeal to this court.  For this purpose one Yuen  Chi Hin  approached Rivera for assistance.   Rivera to this Chinaman to Palma and it was agreed between the three that a bond in the amount desired, P5,600, would be furnished for 5 per cent of its value.   Rivera and  Palma had possession of tax receipts amounting to nearly  P30,000, covering property located at San Miguel de Mayumo, Province of Bulacan, and belonging to one Anastacia Dasig.  They persuaded the defendant Maria Carmen Catu to appear before the court with these papers, declare herself to be Anastacia  Dasig, and sign the appeal bond such person.  This plan was carried out, the bond was accepted by the court, and the Chinaman delivered to the appellants Palma and Rivera a check payable  to  bearer for the sum of P3,000.  These appellants took the check to the  bank the same day  the bond was executed and cashed it, it bearing the indorsement of the defendant Palma.  The civil case w duly elevated to this Supreme Court, where the decision of the lower court was affirmed and  plaintiffs  awarded judgment in the  sum of P5,000 wit costs in  both instances.   The cause being remanded for execution, the sheriff, was unable to find the defendants  in that civil case or any pr of theirs upon which he could levy, and the  plaintiffs  thereupon moved against the  sureties on the appeal bond.  Process was first issued agai Lim Suaco, the  other  surety on the  bond, but  was  returned  unsatisfied with the statement  by the sheriff that this party declared  himself unable meet the judgment.  Several days later Anastacia Dasig presented a motion to the court in which she denied that she  had signed the bond and requested that it be annulled as to  her.  This motion was denied, but subsequently thereto this person in a separate civil action succeeded in the bond annulled as to her.   The plaintiffs in the civil case were the remediless,  and  unable to recover  their judgment.  Upon Anastacia Das appearance  in court with a denial of having signed the bond, criminal proceedings were promptly instituted against .the defendants in the case bar  upon a charge of falsification of a public document, and they were convicted of the  crime  charged and  sentenced  to various terms  of imprisonment.   Subsequently thereto, a new trial was granted and shortly thereafter the prosecuting attorney presented a  new or amended complain in which the  same defendants were  charged  with  the crime of estafa This new complaint was based upon the same facts as the  former one for falsification of a  public document.  On the same day that the new complaint charging the defendants with the  crime of estafa was f the following order was entered:

'I hereby certify that the accused Marcelino Rivera, Quirico T. Palma, a Maria Carmen  Catu,  attended by their counsel, Messrs. McDonough and Sa before this court in public session agreed to the presentation by the as prosecuting attorney, Mr.  Paredes, of an amended complaint in this cause for the crime of estafa; and the said amended complaint having be read to the accused, Maria Carmen Catti pleaded 'guilty';  Marcelino  Rivera and  Quirico  T. Palma pleaded 'not guilty.'"

Palma having agreed to the substitution of the new complaint, he cannot now claim that the court erred in allowing such substitution.   The other appellant does not claim that the court erred upon this point.

The case upon the new complaint proceeded to trial  on November 21, 1910 The prosecuting attorney then offered all of the evidence adduced against Rivera and Palma  at the former trial.   To this Palma said: 

"I have no objection to this  evidence  presented by the prosecuting attorney but I desire to be tried separately."

Rivera said nothing when this offer was made, but he did object to the presentation  of Exhibits F, G, and H,  which are  certain orders issued civil case.  After the introduction of the foregoing testimony, witnesse called and  examined both by the prosecution and the appellants in their respective separate trials.  Rivera, near the close of his second trial, counsel, made the following  offer:

"I will offer the whole evidence of the defense for defendant Rivera on former  trial."

The prosecuting attorney then said: 

"I wish to  offer all the  rebuttal evidence offered on that trial."

This evidence was received without objection.  The appellant Rivera not did not object to the introduction of the testimony taken at the former but he himself offered a part of that testimony, which was admitted without objection.  He cannot now complain or claim that the court erred admitting that testimony.

There remains to be disposed of the exception  taken by counsel for bot appellants  that the facts above stated do not constitute estafa.

The first argument of counsel for Palma on this point is that the name u by Maria Carmen Catu  in  executing the bond was not a fictitious name a required  by the provisions  of the  first paragraph of  article  535 of Penal Code, and that therefore one of the essential elements of the  cri of estafa was missing.  This  argument  is without force for the that other means than the use of a fictitious name may  be used to commit the crime of estafa.   The article reads: 

"ART; 535. The penalties prescribed by the next preceding article shall imposed upon:

"I. Any person who shall  defraud another by the use of any fictitious n or by  falsely pretending  to possess any power, influence, qualification property, credit, agency, or business,  or by means  of any similar deceit other than those hereinafter enumerated."

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It will be noted that this provision of law specifies that estafa

Counsel for both appellants then object that a prima facie case has not been made out against the appellants in that it is not shown that the bank had been unable to realize upon the bond up to the date of  the trial of these appellants. The lower court said: 

"An execution against the judgment debtor was returned unsatisfied on Ap 13 of the present year, and later in the same month a similar return was made as to the one surety whose signature to  the bond in question is found to be genuine.  Moreover, an attempt to realize against the other surety resulted  in the showing that said instrument  was never executed her, but that the pretended  execution was fraudulent,  as found by the judge  in the decision above quoted from, and which was  the theory adopted by the judge who suspended execution against  said surety by the order of July 26,  1910, in said civil cause No. 6898, as well  as by an of the same judge on November 5, 1910."

The records referred to in the above quotation were all introduced as exhibits for the Government  in the case at bar.  It is true that this e does not directly establish the fact that up  to the time of the trial o defendants the plaintiffs had not been able to collect their judgment fr either their judgment debtor or from the sureties on the bond.   But it circumstantial evidence of the highest order.   By  court records it is that  the defendant company in that civil case had ceased business and f that reason the judgment could not be  collected from  it;  and that the surety Lim Suaco refused to meet his obligation on the bond with the statement that he was unable financially to do so.  The order of the cou dated November 5, 1910, granting a  stay of execution as to  Anastacia Dasig  was based upon a  motion presented by  that  person  in which she denied either signing the bond or authorizing anyone to sign it for her; on the trial of the defendants in  this criminal case it was conclusively that she did not sign the same.   At the first trial  of  the  defendant this case, the surety Lim Suaco testified  that he was  still unable to obligation in the  bond.  There is not a shred of evidence in the record tending to weaken the "only logical conclusion to be reached from a consideration of these orders and  the  declarations of Anastacia Dasig Lim Suaco on the trial of the appellants.   To sustain the argument  o counsel that the  plaintiffs in the  civil case for aught the record show have or might have collected their judgment, we should be compelled to reestablish their defendants in business with  sufficient attachable pro satisfy  the bond; to credit the surety Lim Suaco with an accumulation w a period of five months of from P5,000 to  P6,000; or to overturn the evidence which has so conclusively  pointed to the trickery of the defendants and hold that Anastacia Dasig did sign the bond, and that in the interim between November 5,  1910, and  December 29,1910, she confessed her participation therein and allowed process to issue against her property. vague probabilities or  rather possibilities certainly do not amount to reasonable  doubt  of the fact that plaintiffs in  the civil case were time of the trial, and are at this time for that matter, unable to collect their judgment.  It is true that the burden of proving a defendant guilty of t crime charged rests upon the prosecution at all stages of the trial. Tho the defendant does not offer so much as a scintilla of evidence in his o defense, it is  incumbent upon the Government to prove his guilt beyond reasonable doubt. But the presumption of innocence with which the prison favored  may be overcome by convincing evidence of his guilt, and. when such evidence has been  presented  by the prosecution, his continued silence no bar to  its consideration.   It is then incumbent upon the defendant would maintain his innocence to bring forth the  proofs which will demolish the case made by the Government.   To indulge, under such circumstances, conjecture  and vague probabilities will not supply the absence of mater evidence clearly within his power to  produce.  In the case  at bar it w certainly the  duty of the prosecution  to prove the ultimate fact that plaintiffs in the civil case  were still holding their unsatisfied judgment time of the trial of the defendants in this criminal case.   It would ha eminently  proper  for the Government to  have introduced direct testimony in support of this fact.   But in this case, the collateral proof of the appears to us  just as satisfactory and conclusive as positive testimony be.  The appellants did not attempt  to  controvert  this damaging: evidence, which, had it been possible, they could very easily have done. are clearly of opinion that the prosecution has established this fact be any question of a doubt.

It is further urged that the pecuniary loss suffered by the  plaintiff b not been ascertained.  Exhibit F, which is  the order of execution issue against the surety Lim Suaco, shows the amount due from the bondsmen to be P5,133.39.  In this amount is included a certain number of small item costs which the bank could not have received, but the net amount due the bank and which it lost by reason of the presentation of the bogus bond amounts to P5,088.56.

According to the settled doctrine of this court, the essential  elements the  crime of estafa are  (1) the  deceit employed to defraud another, a (2)  the injury or damage caused  thereby.  Both elements must be  prese in order to sustain a conviction for such crime.  (United States vs. 5  Phil. Rep., 370;  United  States  vs. Leano et al., 6 Phil. Re is evident, as we have  said, that deceit  was employed  by the appellant which caused the injury to the plaintiff bank.   The fact that the gain derived by the appellants as a result of their fraudulent acts was not p by the injured party in this case is  of no consequence.  The  defendant the  civil suit  agreed to  pay a fixed amount if the appellants  would secure  bondsmen acceptable to the court.  The bondsmen presented by the appellants were accepted and P300 paid.  The parties who paid the P300 lost nothing.   They received  full consideration  for this amount.  But plaintiff bank suffered the injury.    The  gain does not necessarily ha come from the injured  party.

The judgment appealed from being strictly in accordance with the law and the merits of the  case, the same is hereby affirmed, with  costs agains appellants.

Arellano, C.  J.,  Torres, Mapa, Carson, and Moreland, JJ.,concur.