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[ GR No. 12888, Feb 16, 1918 ]



37 Phil. 671

[ G.R. No. 12888, February 16, 1918 ]




A combination of the facts of this case and the applicable provisions of the substantive law are these:

The Municipal Law (now sees. 2319, 2321, 2322, and 2323 of the Administrative Code of 1917) authorizes a municipal council to grant the exclusive privilege of fishery or right to conduct a fish-breeding ground within any definite portion of the municipality. The same is to be let to the highest and best bidder. In conformity with this law, the municipal council of Loon, Bohol, enacted an ordinance providing that fishing privileges should be sold at public auction. Accordingly on April 26, 1916, a public auction for the sale of fishing privileges was conducted by the municipal president of Loon, with the assistance of the municipal treasurer, the municipal secretary, and a councilor. The municipal secretary, who is the accused herein, acted as secretary of this committee. A list of the successful bidders was made and now appears as Exhibit A. When the auction was concluded, the municipal treasurer being busy, the bidders were told to deposit the amount of their respective bids with the municipal secretary. Eighteen persons did so deposit various sums in payment of fishery privilege licenses and one person turned in a small sum for his land tax. The total was P53.22. The complainants did not receive the licenses for which the money was paid, nor was their money returned to them, nor was it placed in the municipal treasury.

The attorney de officio for appellant makes no assignments of error, but contents himself with what amounts to a motion for the withdrawal of the appeal. This attempt of counsel de officio to dismiss the appeal cannot be allowed without the consent of the client.

One question suggested by the brief of the Attorney-General is that the information may be defective for multiplicity. In reality the information charges nineteen distinct estafas. However, since no objection was made to the information in the court below on the ground that it charged more than one offense, such objection is not available in this court. (U. S. vs. Paraiso [1905], 5 Phil., 149, affirmed on appeal to the United States Supreme Court [1907], 207 U. S., 368.) Moreover, even if the question could be raised, the different sums should be considered as a part of the same transaction and accordingly may be treated as one offense and included in one information.

A second possible question is whether the defendant has committed the crime of estafa or the crime of misappropriation of public funds. Did the defendant have charge of the money "by reason of his office or employment" as these words are used in Act No. 1740 punishing misappropriation of public funds? Was he "accountable" for the funds, as the word is used in section 2672 of the Administrative Code of 1917, succeeding Act No. 1740? At the auction, the defendant was acting in his official capacity as municipal secretary and as a member of the auction committee. The money was deposited with him under authority of law. It was his duty under the ordinance and the direction of the municipal president to receive and turn over the money. The obligation of the defendant was not to return the money to the complainants, but to safeguard the same for the Government. The money became municipal funds the instant it came into the hands of the defendant. The bidders had done all that had been asked of them, and should have received their licenses on demand. Instead the defendant embezzled the money for his personal use. These salient facts make up the crime of misappropriation of public funds.

We can distinguish this case from others convicting of estafa. Thus, in The United States vs. Radaza ([1910], 17 PhiL, 286), where a municipal councilor received from another person the sum of P5 for a permit to slaughter animals under a promise to secure a receipt therefor and failed to secure the receipt or to account for the funds, it was held that he did not commit the crime of misappropriation but estafa. The reason assigned by the court was that he did not receive the money in his official capacity. In direct contrast, the money herein was taken charge of by reason of the defendant being the municipal secretary and secretary of the auction committee. He acted as secretary in receiving the money and not as a private individual. He had charge of the money by reason of his office. (See as corroborative of the view, which holds officials liable for estafa and not for misappropriation of public funds, U. S. vs. Torrida [1912], 23 Phil., 189, and U. S. vs. Villarta [1915], 31 Phil., 335.) As a case of a different tenor in which the defendant was charged with estafa and convicted of misappropriation of public funds, there can be noticed The United States vs. Guzman ([1913], 25 Phil., 22).

One further question concerns the power of a court to order indemnification to the Government of the Philippine Islands or any branch thereof in judgments convicting of misappropriation of public funds. This court, in considering Act No. 1740 in its relation with the provisions of the Penal Code, expressly held in the affirmative in The United States vs. Velazquez ([1916], 33 Phil. 368). While Act No. 1740 has since been repealed, the basic sections of said Act have been carried into the Administrative Code with a slight change in phraseology. The right to indemnification exists in misappropriation of public funds cases.

In view of the foregoing, the judgment of the lower court is reversed and the defendant and appellant is sentenced to imprisonment for six months, to pay a fine of P53.22, to indemnify the municipality of Loon, Bohol, in the amount of P53.22, or to suffer subsidiary imprisonment in case of insolvency, and to pay the costs of both instances, and is declared forever disqualified from holding any public office or employment of any nature whatever. So ordered.

Arellano, C. J., Torres, Johnson, Carson, Araullo, Street, and Avanceña, JJ., concur.