This is an appeal from a judgment of the Court of First Instance of the Province of Cebu, Hon. Adolph Wislizenus presiding, convicting the accused  of the crime of bribery and sentencing him to four months and twenty days of arresto mayor, to pay a fine of P65,  with subsidiary imprisonment ib case of insolvency, and to pay the costs of the trial.

The appellant in this case was tried under the following information:

"That on or about the 13th day of December, 1909, in the municipality of Cebu, in this province and judicial district, said Constancio Flores, being a member of the municipal police, detailed in the department of secret service, maliciously and criminally demanded  and  obtained from  the Chinaman Chan Cam  the  sum of P25,  as a consideration for the said Constancio Flores abstaining, as he did abstain, from complaining against and arresting the said Chan Cam for a violation of Act No. 1761;  that the accused,  in  the performance of the duties of his  office as such policeman, should have complained against and arrested the said Chan Cam."

In the case of the United States vs. Buenaventura (6 Phil. Rep., 447), it appeared that one "Sergio  was arrested without a warrant by the defendant, an officer of the Constabu- lary, for a supposed violation of the law against brigandage. After four days' detention  the defendant released him upon his promise to pay the defendant ?150, which he afterwards did.  There was no evidence to show that  the defendant arrested Sergio for the purpose of extorting this money from him."  The court in that case held "that the crime committed was that of  bribery, defined and punished in article 383 of the Penal Code,  and not the offense defined in section 19 of Act No, 175."

The  court said (p. 448):

"It is suggested  by the Solicitor-General  that the case falls within section 19 of Act No.  175.   We do not think, however,  that that section is applicable, for there is no proof that the arrest was made for the purpose of extorting this money from the complaining witness."

In the case at bar it clearly appears from the evidence that the Chinaman from  whom  the money was extorted had not committed the crime for the commission of  which the appellant threatened to arrest him and that he had been guilty of no illegal act whatever.   It is equally unquestioned that the accused knew that fact.  This being so, it does not fall within the principle involved in the decision of the case above cited, as the particular reason in that case why the accused was held guilty of bribery was that it did not appear that the person from whom the money was obtained was not guilty of  any crime, but, on the contrary, it  appeared that it was very likely that the crime had been committed and that the accused  had  reasonable ground upon  which to make the arrest.  It is the necessary inference from that case that if it had appeared that, to the knowledge of the accused, no crime had been  committed,  and, therefore,  he had no ground upon  which to make  the  arrest,  in other words, if he had arrested the accused knowing that  he had no  right to do so, he would have been guilty of the crime defined and penalized in section 19 of Act No.  175, instead of being guilty of bribery under article 383 of the Penal Code.  This for the reason that he would have made  the arrest for the purpose, necessarily, of extorting the  money from  the complainant.

It appearing in this  case that the Chinaman Chan Cam was not guilty of any crime at the time of his arrest, and that the appellant in this case knew that fact, the necessary inference is "that the arrest was made for the purpose of extorting this money from the complaining witness."

In the case of the  United States vs. Fulgencio  (2 Phil. Rep.,  452), it  appeared that one Eulogio, with certain companions, "had  overturned a barrel from a carreton and scattered  its contents in  the  streets. The defendant and  his companions had, on this account, either arrested the witness or threatened to do so unless money was paid to them." After the arrest the  accused, who was  a  policeman, told Eulogio that if he would give him P20 he would release him from arrest.   Eulogio paid the money as requested and was released from restraint.

In that case the court  held that the offense fell  within the provisions of article 383 of the Penal Code,  saying that "a police officer who receives money in consideration of  his not  arresting anyone guilty of a breach  of a municipal ordinance is guilty of receiving a bribe under article 383 of the Penal  Code."

It should be noted that there was present as one of the essential elements in the above case the fact that there had been  a crime committed and that it  was the duty of the accused to make the arrest and present the offender before the proper authorities for examination.   (U. S. vs. Navarro, 3 Phil. Rep., 633; U. S. vs. Valdehueza, 4 Phil. Rep., 470; U. S. vs. Horca, 6 Phil. Rep., 52.)

The presence of this  element clearly distinguishes that case from the case at bar.

It is more difficult to distinguish the following case:

In the case  of the United States vs. Jader  (1 Phil. Rep., 297),  it appeared that  the  defendant, Damaso Jader, as cabeza de barangay and teniente of the barrio of Candelaria demanded of certain of the inhabitants  "cocks, hens, bamboo, and other articles under promise to relieve the persons from whom he had obtained them of the obligation to perform certain duties which they as citizens were required to perform."   Under such demands said articles were delivered by certain of  the citizens.  Upon these facts  an information was filed against the accused charging him with the crime of bribery.

The court in its decision said (p. 298):

"The facts upon which the prosecutions  are based  constitute, in  our opinion, five  offenses of estafa  and not of bribery.  The articles received by the accused were  not offered to him nor were they donated by the five taxpayers of his department for the purpose of corrupting  him and in order to induce him to omit the performance of  his duty, but were demanded by the defendant,  who  thereby abused his office as cabeza de barangay and teniente of the barrio. Therefore,  instead of applying to these facts articles  383, 385, and 387  of the Penal Code, section 1  of article 534 should be applied,  in connection with section 1 of article 535 and article 399 of the same code.  These  facts constitute exactions committed by a public functionary by an abuse of his official position, to the prejudice and  in fraud of his fellow-citizens."

The court in that case reversed the judgment of the court below convicting the accused of bribery, and in lieu thereof convicted him of estafa and sentenced him accordingly.

In  this case  the  court expressly found that the  property delivered to the accused was obtained by force and intimidation.   He being  a  high official of the pueblo,  and having considerable power, was able to  coerce by a mere demand, particularly when  cognizance is taken of the history  of the office of  cabeza de barangay and  the  tradition which in this country surrounded that  office.   While in that case the force and intimidation practiced are not so  apparent as in the case at bar, still force and intimidation were present. They were the  foundation of the decision.  If they had not been  present, the crime would hsive fallen under the provisions relating to bribery or kindred crime.

It  is apparent, therefore,  that  under this decision,  as well  as  under  those  above cited,  the  crime before us  in the case at bar  is not bribery.   Neither do we believe that it is estafa. Article  399 of the Penal Code, referred  to  in the case last cited, provides  that "the public official who, taking advantage of his office, shall commit any of the crimes specified in chapter  4,  section  2,  title 13 of this  book (swindles and other false pretenses), shall incur in addition to the penalties prescribed herein that of temporary special disqualification  in its  maximum degree to perpetual special disqualification."   As is readily  seen, this article does no more than provide an additional  punishment for the public officials who make their offices the means of committing estafa.   Before this article can be applied, the official must not only have taken  advantage of his office  but he must also have  committed estafa.   The essential element of estafa as defined in article 535, paragraph 1, referred to in the decision above quoted,  is  deceit,  artifice, machination, or cunning. (Groizard, vol.  5; Viada, vol. 3.)   In that case the presence of deceit is expressly negatived by the finding of the court that the  property was  demanded,  indicating clearly that there was on the part of the persons owning the property, no deceit and therefore no voluntary delivery thereof, the latter an  element always essential to the crime of estafa. If property is obtained by deceit, cunning, fraud or misrepresentation, the delivery is always voluntary as contrasted with the delivery of property under force or intimidation. Obtaining property by  fraud is, in a sense, obtaining  it against the true will of  the owner;  but not in the sense of obtaining it by force or intimidation.

We do not believe, therefore, that  this case should govern us in the decision of the case  before us.   Under  the law in force here, we are of the opinion that the correct doctrine is laid down in the case of the United States vs. Smith (3 Phil. Rep., 20).  In this case the facts were that  (p. 21):

"On or about the 8th day of January, 1903, the defendant entered the house of one Esteban Delgado, acting justice of the peace,  and then'and there represented that he was a  detective and that he was looking for certain persons called Josef a Garcia and Pedro Ralla.  These said persons were called by the said defendant to the  house of the said Delgado on the said day.  When the  said  Josefa Garcia and Pedro Ralla  arrived  in  the said  house,  the accused informed  them that he had authority to  arrest  them, and that he had arrested one Isabelo Madera,  and that he could release  him.  The defendant showed a letter  to  these persons, which he told  them was his  authority  to arrest them.   Later, on  the  same day, the accused ordered the said Josefa and Pedro to  prepare their  clothing in order to go to Manila,  because  he  was going  to take them  as prisoners.  He also ordered the said Delgado to prepare a vehicle to take  the so-called prisoners  to a  point where he could secure transportation to Manila.  A vehicle could not be found.  The said Josefa and Pedro prepared their clothing for the trip to  Manila.  During the conversation between the accused  and  the said  Josefa  and Pedro the former  continually threatened them with arrest and  with personal harm.  After the said persons were so arrested by the accused, he informed them that they had a remedy.   He gave them to understand that if they would give him $1,000, Mexican, he would release them.  Finally a compromise was made on the amount, and Josef a and Pedro paid to the said accused the sum of $700, Mexican."

Upon these facts this court held the defendant guilty of the crime of  robbery and not estafa.  In its opinion  the court cited a decision of the supreme court of Spain rendered on the 24th of June, 1875.  In that case it appeared  that the accused presented himself at the  houses of various persons and demanded money on the pretext that it  was for a band of malefactors who were in the mountains,  and that he had been commissioned by such band to make such demands.  He collected various sums  from different  individuals.  The question before the court  was whether  the crime was robbery with intimidation or simply estafa.  That court held that each demand constituted robbery with intimidation, saying:

"Whereas, the essential  element of the  crime of estafa consists in the ingenuity or cunning employed by the agent for the purpose of deceiving the one whom it is intended to victimize, and  such astuteness  and  cunning consequently exclude all idea of intimidation or the employment of other means of like nature tending to prevent or impede  the exercise of the will, which remains  free and independent although influenced by the statements made, circumstances which are also present in the perpetration of the deceit as mentioned in  the Penal Code;  and  whereas whether  the statement as to the band of malefactors was merely an invention for the purpose of obtaining the money, or whether the band  actually existed, Pascual Mengaul y Domenech,  on demanding the sums he  appears to have received from different persons, attained his object by means of threats of injury which the  robbers  might inflict upon  the persons upon whom the demands were made, if those persons did not comply therewith; and  whereas this intimidation was  actually present, the acts committed can not legally be considered to constitute estafa or deceit."

The crime of robbery, in its  various phases  as defined by the Penal Code of these Islands, includes the common-law crimes of burglary, robbery, and some cases of extortion. It does not  seem strange or  illogical, therefore, to  hold the crime proved in the case at bar to be robbery, although in Anglo-Saxon jurisdictions  it  would  probably not  be  so denominated.

As we have seen, the  information  in this case charges bribery.   It expressly negatives the essential elements of robbery, force or intimidation, or both, by asserting that it was the duty of the accused to make the arrest, indicating necessarily  by  such assertion that the Chinaman had committed a crime and that he ought to have been apprehended and presented.   In such  case the Chinaman parted  with his money voluntarily in order to escape arrest, conviction and punishment.  Bribery and robbery have little in  common as regards  their  essential  elements.   In  the former the transaction  is mutual and voluntary.   In the latter  case the transaction  is  neither mutual nor voluntary but is  consummated by the  use of force or  intimidation.

The information in this case does not set forth facts constituting robbery, and the accused can not be here convicted of that crime.   The facts proved showing robbery under the case of the United States  vs.  Smith, supra, and not  bribery, as charged,  the judgment below  must be reversed  and the information dismissed.  So ordered.

Arellano,  C. J., Mapa, Carson, and Trent, JJ., concur.