G.R. No. 1376. January 21, 1904

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3 Phil. 223

[ G.R. No. 1376. January 21, 1904 ]




The defendant was accused of the crime of embezzlement in the language
following :

“That the said J. Valentine Karelsen, on the 2d day of April, 1903, whilst
acting as postmaster at Calamba, of the Province of Laguna, P. L, and haying in
his charge public funds belonging to the post-office, withdrew, for his own use
and benefit, the sum of $1,000, gold currency of the United States, the
property of the Post-Office Department of the Government of the Philippine
Islands, contrary to the statutes made and provided in such

This complaint was presented on the 27th day of April, 1903. On the 21st day
of May, 1903, the said accused presented a demurrer to the said complaint,
alleging the following grounds:

First. That the amount of the funds alleged to have been embezzled does not
appear in the complaint.

Second. Neither does there appear in the complaint a description of said
funds in such a manner that an intelligent person can identify them.

On the 22d day of May the court overruled the said demurrer in the following

“The attorneys for the accused base their exception on the fact that the
complaint does not state the value of the funds embezzled nor specify of what
they consist.

“A reading of the complaint convinces me that there is no ground for such

“Therefore, after considering the reasons set forth by both parties, I am of
the opinion that the exception set forth should be overruled, and the accused
must answer to the complaint.”

On the same day the defendant was duly arraigned and pleaded not guilty. The
cause thereupon proceeded to trial on the same date.

On the 27th day of May, 1903, the court, after hearing the evidence adduced
in the trial of said cause; found the defendant to be guilty of the crime of
embezzlement of public funds, and sentenced him to be imprisoned for the period
of ten years and one day of presidio mayor, perpetual absolute
disqualification, indemnification to the Government in the sum of $1,000, gold,
which must be made effective by the bond given by the accused, and to the
payment of costs.

On the 2d day of June, 1903, the defendant gave notice of his intention to
appeal to this court from said sentence.

The attorney for the defendant assigns the following errors:

First The court erred in overruling the demurrer interposed by the accused to
the complaint.

Second. The court erred in pronouncing judgment against the accused for a
“delito grave” in the absence of the accused.

Third. The evidence adduced at the trial does not prove the guilt of the
accused beyond a reasonable doubt.

Fourth. The court erred in taking into consideration the statement of the
clerk with regard to the condition and appearance of the mail bag mentioned in
the record.

In the first assignment of error it is alleged that the demurrer should have
been sustained because: First. The complaint did not contain a description of
the money embezzled by piece or denomination; second, because the penalty fixed
by article 390 of the Penal Code for embezzlement is based upon the number of
pesetas embezzled, and that the court could not measure the value of the money
given in the complaint in pesetas, there being no fixed equivalent value of gold
dollars in pesetas; third, that no person should be held to answer for a
criminal offense without due process of law, and in all criminal prosecutions
the defendant shall enjoy the right to demand the nature and cause of the
accusation against him and that the complaint must contain a description of all
the requisites of the crime, so that the accused may know just what offense he
must prepare to defend himself against.

At the early practice under the common law complaints were made or might be
made orally. This practice led to so much confusion and embarrassment and
deprivation of rights upon the part of the accused that in the year 1688
(February 13) the people of Great Britain demanded and received from the Prince
and Princess of Orange what has ever since been known as the “Bill of rights.”
The bill of rights put an end forever to oral complaints, and required that
thereafter every person charged with the commission of crime should not be
brought to trial until after he had been informed in writing, fully and plainly,
of the nature of the offense with which he was charged. This provision of the
bill of rights has been adopted in the Constitution of the United States as well
as in the constitutions of all the States. By Act 235, the organic law of the
Philippine Islands, enacted by the Congress of the United States, July 1, 1902,
this ancient bulwark of the liberties of men was extended to the people
inhabiting these Islands.

The object of this written accusation was—

First. To furnish the accused Avith such a description of the charge against
him as will enable him to make his defense; and second, to avail himself of his
conviction or acquittal for protection against a further prosecution for the
same cause; and third, to inform the court of the facts alleged, so that it may
decide whether they are sufficient in law to support a conviction, if one should
be had. (United States vs. Cruikshank, 92 U. S., 542.) In order that
this requirement may be satisfied, facts must be stated; not conclusions of law.
Every crime is made up of certain acts and intent; these must be set forth in
the complaint with reasonable particularity of time, place, names (plaintiff and
defendant), and circumstances. In short, the complaint must contain a specific
legation of every fact and circumstance necessary to constitute the crime
charged. For example, if a malicious intent is a necessary ingredient of the
particular offense, then malice must be alleged. In pther words, the prosecution
will not be permitted to prove, under proper objection, a single material fact
unless the same is duly set forth by proper allegation in his complaint. Proof
or evidence of material facts is rendered admissible at the trial by reason of
their having been duly alleged in the complaint. (Rex vs. Aspinwall, 2
Q. B. D., 56; Bradlaugh vs. Queen, 3 Q. B. D., 607.)

If personal property is the subject of the offense, it must be described with
certainty, and in those cases in which its value is material the value must be
stated. Personal property can usually be described by the name by which it is
generally known. For example, in a charge of the robbery of a horse or carabao
it would be sufficient to describe this property simply as a horse or carabao.
If, however, the value of the horse or carabao is a necessary element of the
offense in order that the punishment may be properly fixed, then the complaint
would not be sufficient if no value was given to such property. It would be
necessary, for example, in every complaint under subsections 1, 2, 3, 4, and 5
of article 518 of the Penal Code to allege some value to the property stolen. If
the property is made up of different kinds or of different parts, then a value
should be given each. The complaint generally would be bad if in such a case a
total value only was alleged. These rules do not require that a minute
description of the property shall be given—they do not require an impossibility.
For example, if a clerk, in sole charge of a business as agent or factor,
collects, at different times, sums of money, on general account, consisting of
various kinds and denominations and then fraudulently appropriates them to his
own use, these rules do not require the prosecution to describe each piece of
money so collected and misappropriated. If the descriptive terms used are
sufficient in their common and ordinary acceptation to show with certainty to
the common understanding of intelligent men what the property was and to fully
identify it they will be sufficient. In other words, the description of
property, in such cases is subject to the rule that the law only requires such
certainty as the nature of the property and the circumstances will permit
(Wilson vs. State, 69 Ga., 224.) A less degree of certainty is
required in the description of the offense token the facts which constitute it
lie more particularly within the knowledge of the defendant.

There is a general opinion that a greater degree of certainty is required in
criminal pleading than in civil. This is not the rule. The same rules of
certainty apply both to complaints in criminal prosecutions and petitions or
demands in civil causes. Under both systems every necessary fact must be alleged
with certainty to a common intent. Allegations of “certainty to a common intent”
mean that the facts must be set out in ordinary and concise language, in such a
form that persons of common understanding may know what is meant.

In this case it is alleged that the complaint was insufficient in that it did
not describe the “one thousand dollars” by piece or denomination or value. Our
attention is called to several cases in the United States upon this question. In
the case of Lavarre vs. State (1 Texas Court of Appeals, 085) the complaint
alleged “three hundred gold dollars,” without alleging that they were lawful
money or current coin of the United States or of any country. The complaint was
held bad for this’ reason. The court there states that “an allegation of value
is material in two respects: First, there can be no theft of an article unless
that article has either intrinsic or relative value, and no value could be
proved unless alleged in the indictment; and second, under the statute the
degree of punishment for theft depends upon the value of the thing stolen.”

In the case of the People vs. Ball (14 Cal., 101) the allegation was
“three thousand dollars, lawful money of the United States.” This was held an
insufficient allegation because the particular denomination or species of coin
must be set forth. This was also a complaint for larceny.

In the case of People vs. Cohen (8 Gal., 42) the language used was
“four hundred thousand dollars, money, goods, and chattels.” Here the accused
could not determine how much money, what goods, and what chattels, and the
complaint was therefore held bad. Judge Baldwin, in the case of People
vs. Green (15 Cal., 512), in commenting upon this case (People
vs. Cohen), said: “It is true, the court says, money should be
described as so many pieces of the current gold or silver coin of the country,
but we think we may well infer that a twenty-dollar piece of the gold coin of
the United States is current coin of the United States, and is of the value of
twenty dollars of our money.”

A complaint for the crime of embezzlement ought to state the description of
the property embezzled with the same particularity as is required in a complaint
for larceny. But in the case of larceny the property was in the possession of
the owner, and he is presumed to know its particular description, while in
embezzlement where the offense is committed by a person, in the course of a
long, continuous employment as a clerk, cashier, or postmaster, who is
daily receiving and disbursing large sums of money, a description of the pieces
or denominations of the money is absolutely impossible. In such a case, if his
accounts are correctly kept, the only description which can be made is by a
general statement of the amount which his books disclose. Is it to be argued
that a cashier, for example, who daily embezzles sums of money for months is to
be discharged from liability simply because the prosecution can not give a
minute description by piece or denomination of all the money so misappropriated?
England has taken advanced ground upon this question, and by the seventh and
eighth George IV, chapter 29, section 48, enacted that “it shall be sufficient
to allege embezzlement to be of money without specifying any particular coin or
valuable security, etc.”

In the present case the books of the accused showed that he had the sum of
$1,046.64, gold, United States currency, belonging to the Post-Office Department
on the 1st day of April, 1903. He is charged with embezzling “$1,000, gold,
legal money of the United States.” This allegation is in substance in the terms
of his own accounts, and we fail to see how he can in any way misunderstand the
allegation or be confused in making his defense under it.

It is argued that the complaint is bad because it failed to allege the value
of the property embezzled in terms of pesetas. One peso, Mexican, is equivalent
to five pesetas, and by a proclamation of Governor Taft issued on the 11th day
of March, 1903, the value of $1, United States currency, was fixed at 2.60 pesos
of Insular currency. This would make the value of $1, gold, equal to 13 pesetas.
Not only this, but the evidence showed that the accused was familiar with the
exchange value of gold and Mexican for the reason that he had, on or about the
1st day of April, 1903, been exchanging one for the other. Under the said
proclamation it was the duty of the accused to pay to the Government or to
account to the Government for every gold dollar received, either the gold dollar
or $2.60, Mexican, its equivalent.

There has not been a time since January 1, 1901, until April 2, 1903, when
$1, gold, was not worth at least 10 pesetas. Figuring the value of $1,000, gold,
on this basis, their value in pesetas would at least amount to 10,000

At the trial the said defendant admitted the following facts:

(a) That on the 2d day of April, 1903, he was the postmaster at Calamba, in the Province of Lagtina, P. I.

(b) That on said 2d day of April he had in his possession as such
postmaster the sum of f 1,046.64, gold currency of the United States, and
claimed that on said day he had remitted $1,000, gold, to the Postmaster or
Director of Posts at Manila.

The defendant claimed that he had remitted $1,000 to Manila through the
mails. He also claimed that two persons (Green and Canicosa) were present at the
time (April 2) when the said money was sealed in the mail sack just before the
same was sent out in the mail. Green and Canicosa each deny this fact. It is
true that Green did sign the “letter of remittance,” etc. He testified that he
signed said letter on April 1, as a matter of favor at the request of the
accused. It was shown by other proof that Green was not at the office of the
accused on the morning of the 2d of April.

There was an attempt made to show that the said mail sack was robbed of the $1,000, gold, while in transit to Manila from Calamba, and therefore that the
defendant was innocent. We are of, the opinion that this proof was not
sufficient to establish the fact.

Upon consideration of all the proof adduced at the trial we find that the
said accused did, on the 2d day of April, 1903, while acting as postmaster at
Calamba, in the Province of Laguna, P. I., while having in his custody and under
his control public funds belonging to the Post Office Department of the
Philippines, appropriate to his own use and benefit the sum of $1,000, gold,
legal money of the United States, which was equivalent in value at least to the
number of 10,000 pesetas, which offense is provided for and punishable under
subsection 3 of article 390 of the Penal Code.

Under all the evidence given in the trial of this cause we find that an
ocular inspection of the mail sack, in which it is alleged the said money was
sent to Manila as claimed by the accused, would not aid the court in reaching
its conclusion.

It is alleged that the court committed error in announcing its sentence
during the absence of the accused. It is admitted that the sentence of the court
below was announced to the accused in the jail, and not by the judge;but by the
clerk; that he was not brought into open court and informed by the judge there
of the sentence. Section 41 of General Orders, No. 58, provides that “the
defendant must be personally present at the time of pronouncing
judgment, if the conviction is for a felony.” The offense here was a felony.

In all criminal prosecutions the accused has an absolute right to be
personally present during the entire proceeding from arraignment to sentence if
he so desires. In cases of felony he can not waive this right. The court in case
of felony must insist upon the presence of the accused in court during every
step in the trial. The record must also show that the accused was present at
every stage of the prosecution. (Hopt vs. Utah, 110 U. S., 574,) It is
not within the power of the court, the accused, or his counsel to dispense with
the provisions of General Orders, No. 58 (sec. 41), as to the personal presence
of the accused at the trial. We mean by the phrase “at the trial” to include
everything that is done in the course of the trial, from the arraignment until
after sentence is announced by the judge in open court.

The question is what effect shall a violation of the terms of section 41 of
General Orders, No. 58, have upon the rights of the accused.

“We are of the opinion that for this error the.sentence of the court below
should be reversed, without disturbing the verdict, and the cause remanded with
direction to the court below to pronounce the judgment in accordance with the
provisions of section 41, General Orders, No. 58.”

The court below appreciated two aggravating circumstances provided for in
subsections 7 and 8 of article 10 of the Penal Code, as follows, (1)
premeditation and (2) fraud. These constitute not aggravating circumstances in
this case but elements of the offense.

There being neither aggravating nor extenuating circumstances, under article
81 of the Penal Code the medium degree of presidio mayor should be

Arellano, C. J., Torres and McDonough, JJ., concur.

Willard and Mapa, JJ., concur in the result.



By the provisions of article 534 of the Penal Code, under which the defendant
has been convicted, the degree of punishment for embezzlement depends upon the
value of the embezzled property: (1) With the penalty of arresto mayor
in its minimum and medium degrees if the property does not exceed 250 pesetas in
amount; (2) with that of arresto mayor in its medium degree to
presidio correccional in its minimum degree if the property exceeds 250
pesetas and not be more than 6,250 pesetas; (3) with that of presidio
in its minimum and medium degrees if it should exceed 6,250

There being no fixed ratio between gold dollars of United States currency and
pesetas, which is a Spanish silver coin, it was necessary to state in the
complaint the value in pesetas of “one thousand dollars, gold currency of the
United States,” alleged to have been embezzled.

For this defect in the complaint the judgment should be reversed.

This view will render it unnecessary to consider the other questions which
have been discussed in the majority decision, and upon which I express no

Date created: January 08, 2019


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