On September 2, 1905,  Gregorio Mallari, accompanied by his wife, Julia Sunga, presented himself to Emigdio  Bundoc Taliri and  requested the latter  to  trust  him with some embroidered jusi cloth  to sell  on commission.   Mallari agreed to deliver to the owner of the cloth the proceeds of the sales, or the  cloth itself in case it should not have been sold,  by the 30th of  December of that year.   Pursuant to the request, the accused spouses received from  Taliri 66 pieces of embroidered jusi, valued at P198, and thereupon Fulgencio Jaime drew up a contract in Spanish from data furnished him in the Pampanga dialect.   After this document had been written it was  read to the said spouses and interpreted to them in Pampanga,  and  the  next   day  it was ratified before the notary, Simplicio Mangila, although Julia  Sunga did  not appear before the notary, saying that she did not think her presence was necessary as, according to the offended party, she had already signed the document. As Mallari did not fulfill his agreement to deliver the value of the cloth or the cloth itself,  should it not have been sold, the owner of the goods made a demand upon him, at the time the agreement was broken, and on several  occasions afterwards, once in writing and the other times verbally through Nicolas Quiambao, for the return of the cloth or the delivery of its price; but  Mallari always replied that the cloth was not yet sold, when Taliri knew that it was; wherefore the latter, believing that he was the victim of a fraud, made a complaint to the court of the justice of  the peace of San Fernando, Pampanga,  and the record of the proceedings in the case was afterwards  forwarded to  the Court of First Instance.

On the basis of the foregoing facts, the provincial fiscal, on November 5,  1908, filed  a complaint with the  Court of First Instance of the  said  province charging  the spouses Gregorio Mallari and Julia Sunga with the crime of estafa, and the cause having been tried, the judge, in  view of the evidence adduced, rendered  judgment therein  on  October 12, 1908, and sentenced each of the accused to the penalty of six months' arresto mayor, to the accessory penalties, to indemnify Emigdio Bundoc  Taliri severally and jointly in the sum of P198, with subsidiary imprisonment in  case of insolvency, and each to pay one-half of the costs.   Gregorio Mallari died on the  4th of the said month of October, in the pueblo of Macabebe, wherefore, by order of December 24, 1908, the case was dismissed in so far as it concerned him, and an appeal was taken by the surviving defendant, Julia  Sunga.

Starting from the hypothesis that due proof was actually adduced  in this cause  of the existence  and reality of the crime  of estafa herein charged, and of  the  guilt of  the accused Gregorio Mallari, although, on  account of the latter's death on October  4,  1908, a few days before the judgment  appealed from was  rendered,  the case was dismissed with respect to the deceased, by order  of December 23 of the same year (p. 101 of the record), withal the proceedings had in the case  do not show full proof of the  guilt of the other  defendant, Julia Sunga, the  wife  of the  deceased defendant, Gregorio Mallari, as a coprincipal of the crime under prosecution.

The circumstance of Julia Sunga's having been present when her husband Gregorio Mallari received from the aggrieved party the 66 pieces  of embroidered jusi cloth, and when the instrument of contract was executed, expressive of the delivery and receipt of the cloth and of the obligation to deliver the price thereof, or to return the cloth, in case it should not have been sold by December 30, 1905,  to its. owner,  Emigdio Taliri, does not determine, on account  of the husband's nonfulfilment of his agreement, criminal liability on the part of the wife.   Because she  accompanied her husband on that occasion, it does not follow that she was criminally liable for  the deceitful and fraudulent conduct of  her  husband, so  long as it  is not shown that the wife participated directly or even indirectly in the appropriation or abstraction of the cloth received  for its sale on commission by the husband.

Between the document Exhibit A, on the one hand, which contains a  copy of the memorandum written by the notary Simplicio Mangila on page 37, back, of the registry book of instruments executed  or  ratified  in  his office - a copy subscribed  by the notary Cosme Garcia, because the said Mangila who wrote the  copied memorandum afterwards died - and on the other hand, the Exhibit B, which is said to be a transcript or reproduction of  the instrument alleged to have  been  executed by the said spouses and in which record was made of the receipt of the cloth and the agreement to return it  or its  value on December 30, 1905, since the authenticity  of this document Exhibit B does not appear to have  been  proved at the trial, the  contents, of the memorandum copied in Exhibit A must necessarily be relied upon, inasmuch as  it is  a proven fact  that the defendant  Julia Sunga did not appear before the notary  to ratify the contents of  the document alleged to have been written by the witness   Fulgencio Jaime  which,  having disappeared,  was substituted by the Exhibit B, an imitation or reproduction of the same.   The memorandum copied in Exhibit A reads as follows:

"Don   Gregorio Mallari, executor of the instrument, D. Emigdio B. Taliri,  creditor, D. Fulgencio Jaime,  witness, Venancio Reyes.  By commission  on sale value of P198, Sept. 3,  1905.  The commission is on  sixty-six pieces of embroidered jusi, the proceeds from the sale of which shall be delivered to Taliri  on the 30th day of  December of the present year."

In this note, which  must be a true extract of the instrument drawn up by the witness Jaime and which was ratified before a notary  by the executor thereof, Mallari, neither the name of the  appellant Julia Sunga,  nor  any mention thereof, appears.  It was therefore not necessary for her to ratify the contents of the documents executed by her husband, as is made to appear in Exhibit B,  for accepting as certain and exact the memorandum copied in Exhibit A, as averred by the notary who transcribed it from the registry book kept by the deceased  notary Simplicio Mangila  who wrote the memorandum and before whom the ratification was made, the participation  of Julia Sunga in the aforesaid agreement of her husband, such as it appears in the document reproduced by Exhibit B,  can not properly be admitted as a fact. It would not be hazardous to affirm that were  the notary Mangila  now living he perhaps would  not  have exhibited the  said document, Exhibit B,  after  the disappearance of  its original authentically abstracted in the instrument Exhibit A.

The fraud or the deceit must not  be looked for in the act of making the contract of commission and of executing the instrument  annotated  by the notary according to Exhibit A.   The  malice and  the elements constituting  the crime of estafa supervened after the receipt  of the cloth, and under this assumption the record of the cause does not disclose conclusive proof that Julia Sunga participated in the  punishable acts committed by  her husband who,  according to the testimony of the aggrieved party himself,  was  the sole person who took charge of the cloth for the purpose of selling it on commission and came  to terms of agreement with  the  owner  thereof,  wherefore the demands  made through a third party in behalf of the offended person were addressed to the said Mallari.  The criminal liability of the appellant can not be established by the circumstance  that her name appears beside that of her husband in the charges preferred against the latter in connection  with the alleged estafa.

For the foregoing reasons,  and in view  of the fact that the trial of  this cause disclosed no conclusive proof  of the guilt of  the defendant  Julia  Sunga, it  is  proper,  in our opinion,  with a reversal of the judgment  appealed from, to  absolve Julia  Sunga,  with the  costs  of both  instances de  oficio, and it is so ordered.

Arellano, C. J., Johnson, Moreland,  and Trent, JJ., concur.