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[ GR No. 5624, Feb 03, 1910 ]



15 Phil. 144

[ G. R. No. 5624, February 03, 1910 ]




The defendant, Mariano Feliciano, is charged with having misappropriated and applied to his own  use the sum of P53.05  in his custody as municipal treasurer and deputy provincial treasurer  for the municipality  of San  Pedro Macati, in violation of section 1  of Act No. 1740,  which punishes  the appropriation of public funds  and their application  to personal use.  The Court of First Instance of the Province of Rizal sentenced him to two months' imprisonment, to pay a fine of P12 and costs, and from this judgment the accused has appealed.

One of the grounds for the appeal to this court is that, in the present case, Act No. 1740 has been invoked instead of article 392, paragraph 3, of the  Penal Code.

In  connection with the legal point thus raised, all that is said by this court in the decision rendered on this date in case No. 5623,  U.  S. vs. Jose Feliciano,[1]for identically the same crime, should be considered as reproduced herein.

The other reason alleged is that the court below erred in considering that the facts proven in  this case constitute the crime of misappropriation of public funds.

A deputy auditor testified that on the 20th  of May, 1908, he went to the municipality  of San Pedro Macati for the purpose  of making an inspection  of the office, cash,  and accounts of the municipal treasury of said town, of which Mariano Feliciano was the treasurer; that there resulted from  the  examination a shortage of P53.05 in the cash of the municipal treasury; that at the moment when the difference was discovered he notified the treasurer of it, and the latter took the sum of P53.05 from his pocket and paid it, but he did  not remember, however, whether he  had questioned the  treasurer as  to why the amount was not in the safe; and  that, at the time when the examination was made, there  were other persons present, to wit, the municipal president and the municipal secretary.

When the above witnesses were examined, the first named stated that they were  called  by the deputy auditor at the commencement of  the examination in order to witness the same, and he remembered that there was a deficit of some fifty-odd  pesos  and that the treasurer at once paid the money that was lacking, taking the  same out of his own pocket.  The second witness stated that he was not present at the commencement of the examination, and that it was only  when the  shortage was discovered that the deputy auditor called him  in to bear witness thereto; that, as he remembered, it  amounted to more than P50; that what he did see was that the shortage was at once covered by the treasurer,  Mariano  Feliciano,  who   took  the necessary amount from his pocket.

The accused being placed on the stand testified that  an examination of the cash and accounts kept by him as municipal treasurer was made on the 20th of May, 1908, and that when the examiner called his attention to the fact that there was a shortage of some  79-odd pesos,  he told  the latter that there was more money in a small box in the safe,  which was true, as the  examiner has certified; that subsequently the latter observed  that even with this there was still money lacking,  and the witness then recalled that he had money in his desk representing the  remainder  of certain payments for wages  of  laborers, which money  he also presented to the examiner, but the latter in his report stated that said money was not  in the safe and that  the cash  was short.  In explaining why  this money was not in the safe, he said that it was destined to pay wages on the previous Saturday, but that as all the laborers had not appeared to collect  their  wages he kept it in  his desk, and it remained there  because he had begun to prepare  his report for the ten-day period.

Section 2 of Act  No. 1740 provides that - "Any failure or inability of  such person to produce all the funds and property properly in his charge on  the demand of any officer authorized to examine or inspect such person, office, treasury, or depositary shall be deemed to be prima facie evidence that such missing funds or property have been put to personal uses or  used  for personal  ends by such person within the meaning  of the previous section."

If, according to the officer who made the examination of the accounts,  at the very moment when the shortage  of P53 was discovered  and the treasurer was notified  he  at once presented the money, no prima facie evidence of the crime of misappropriation can be established, nor any proof whatever that there was such misappropriation.

Therefore, the judgment appealed from is hereby reversed with the costs of both instances de oficio.   So ordered.

Torres, Mapa, Johnson,  Carson, Moreland, and Elliott, JJ., concur.

[1] Page 142, supra.