G.R. No. 2097. July 29, 1905

The defendant was charged with the crime of embezzlement of public
funds in the sum of P1,372.75. He was tried by the Court of First
Instance of the Province of Sorsogon, found guilty of said offense,
sentenced to be imprisoned for the period of ten years and one day of presidio mayor
under paragraph 3 of article 390 of the Penal Code, to reimburse the
Province of Sorsogon in the sum of P1,372.75, and to pay the costs. He
was further sentenced to temporary absolute disqualification for the
period of nine years and one day. From this sentence the defendant
appealed to this court.

An examination of the evidence adduced during the trial of said cause demonstrates the following facts:

1. That the accused was in the month of November, 1903, a
   deputy treasurer of the Province of Sorsogon, and had been holding said
   office for some time prior thereto, and continued to hold the same
   until the 7th day of March, 1904, when he was suspended.

2. That the accused as such deputy treasurer had, in the months of
   November and December, 1903, collected various sums of money for and on
   behalf of the Province of Sorsogon.

3. That
   he had in the months of November and December, 1903, taken and used
   such public funds so collected and applied them to his private purposes.

4. That on or about the 12th of the month of February, 1904, an examiner
   from the office of the Insular Treasurer arrived at the pueblo of
   Sorsogon for the purpose of examining the accounts of the provincial
   treasurer; that the said examiner proceeded at once to count the money
   in the hands of the said provincial treasurer; that the accused was
   present in the office while the money was so being counted; that said
   examiner found in the treasury money, checks, and papers of the value
   of P44,479.25 and that the books of the treasurer demonstrated that he
   should have had on hand the sum of P44,332.09 and 159.45 pesos, Spanish
   currency; that the 159.45 pesos, Spanish money, was of the value of
   P142.36, which, added to the sum of P44,332.09, would make the sum of
   P44,474.45, which would show that the actual cash on hand—that is to
   say, the difference between P44,479.25 and what the books showed he
   ought to have had on hand, or P44,474.45—is; P4.80. In other words,
   according to the statement of the examiner, the cash on hand exceeded
   the amount which the books showed he ought to have had on hand in the
   sum of P4.80. (Folio 34.)

5. The same
   examiner examined the books and accounts of the said treasurer again on
   the 7th day of March, 1904. According to this latter examination the
   actual cash on hand on that date was the sum of 553 pesos, Mexican,
   5,787.50 pesos, Spanish money, and P58,273.05, and the books show that
   he ought to have had on hand the sum of P58,293.04 and 6,340.52 pesos,
   Spanish currency. The examiner said that the actual cash on hand was
   $40 less than the amount which the books showed that he ought to have
   had on hand, and further stated that this deficit of $40 was
   satisfactorily explained to him. (Folio 35.)

6. That the said examiner made a further examination of the accounts of
   the said provincial treasurer of moneys collected in various
   municipalities of said province. The result of said examination is
   found in Exhibit H attached to the record in said cause, which exhibit
   shows that the defendant had collected in various pueblos of the
   Province of Sorsogon the sum of $159.65, gold, and 1,211.47 pesos,
   Mexican, or the total sum of P1,372.75. (Folio 38.) The said examiner
   found that this sum had been collected by the defendant who had issued
   receipts for the same, and which sum the said defendant had not turned
   over to the treasurer of the said province.
7. That during
   the time the said examiner was examining the accounts of the said
   treasurer the said defendant desired to know of the said examiner the
   amount of the said deficit, and then and there offered to pay to the
   said examiner whatever sum was found to be short in his accounts.
   (Polios 46, 76, and 77.)

8. That the examiner never indicated to the defendant the exact amount of the deficit.
9. That on the 14th day of April, 1904, and after the commencement of the
   trial against him, the defendant paid into court the sum of P1,372.75,
   the amount which the Government claimed that the said accused had
   embezzled.

10. That the defendant had
    collected the said sum of P1,372.75 some two months prior to the said
    examinations of the accounts of the said provincial treasurer, and must
    have known that this sum had not been delivered to the treasurer.

11. That the defendant failed to give the said examiner any information
    concerning the fact that he had collected this sum and had not
    delivered the same to the treasurer, even though he was present during
    the said examination.

The only circumstance that could give rise to suspicion as to the
intention on the part of the accused to appropriate finally to himself
the money received by him as deputy provincial treasurer is the fact
contained in the last paragraph above. But this fact is not conclusive.
It was even probable that after the inspection and counting of the cash
on hand the accused would have returned the money to the treasurer,
thus effecting the restitution of the money, as was actually done. This
being go, the record only shows the fact that the accused applied to
his own use the money then in his possession. And inasmuch as no
detriment or hindrance of the public service resulted from the
commission of this crime, we hold that the same falls under the
provisions of paragraph 3, section 392 of the Penal Code.

The aggravating circumstance of abuse of confidence appreciated by
the court below should not be considered, this being inherent in the
crime itself.

Therefore the sentence of the court below is hereby reversed, and
the defendant is hereby sentenced to pay a fine of P343, such amount
being more than 5 per cent and no more than 25 per cent of the sum
misappropriated by the defendant. He is also sentenced to four years of
suspension, and to pay the costs of both instances. So ordered.

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

Carson, J., reserves his opinion.
Willard, J., did not sit in this case.