DAVID DELFIN, PETITIONER, VS. COURT OF APPEALS, PHILIPPINE CHARITY SWEEPSTAKES OFFICE, ILOILO CITY FISCAL AND HON. JESUS S. RODRIGUEZ, AS JUDGE OF THE COURT OF FIRST INSTANCE OF…

On May
24, 1960,
the City Fiscal of Iloilo filed in the Court of First Instance of Iloilo an information for “malversation of
public funds” against David Delfin, as
follows:

“That on or about the 13th day of
April, 1959, in the City of Iloilo, Philippines, and within the jurisdiction of
this Court, said accused, being then the Sales Supervisor of the Philippine
Charity Sweepstakes Office, Iloilo Branch, a public accountable officer, who, by
reason of the duties of his office as such Sales Supervisor, had received under
his custody P21,122.40, representing the total value of 677 booklets of
Philippine Charity Sweepstakes tickets for the December 2, 1958 and December 21,
1958 draws, with the duty and obligation on the part of the said accused to
account and produce the amount P21,122.40 to the proper authorities upon demand,
but said accused, far from complying with the said duty and obligations, and
when required to account and produce the whole amount of P21,122.40 accounted
and produced only the amount of P1,065.11 thereby leaving a balance of
P20,058.29, which the herein accused did then and there wilfully, unlawfully and feloniously misappropriate and
convert to his own personal use and benefit, to the damage and prejudice of the
Philippine Charity Sweepstakes Office in the aforementioned sum of P20,058.29,
representing the total value of 677 booklets of sweepstakes
tickets.”

The accused pleaded not guilty,
and the case proceeded to trial. After the prosecution had presented its
evidence, counsel for the accused moved for the dismissal of the information.
The court denied the motion by its order of August 16,
1962,
stating that the prosecution had established a prima facie case.

Thereupon, the accused filed with
the Court of Appeals a petition for prohibition and mandamus with preliminary
prohibitory injunction, to compel the trial court to dismiss the case and desist
from further proceeding with the trial of the same.

After hearing the parties, the
Court of Appeals, in its resolution of October 31,
1962,
denied the petition.

This is petitioner’s appeal from
the Court of Appeals.

Petitioner contends that the
Philippine Charity Sweepstakes Office is a private office, that its employees
are not “public officers” and its funds not “public funds”. Thus, he argues that
the elements of “public officer” and “public funds” in the crime of malversation are wanting in his case, so that, the trial
court gravely abused its discretion in denying his motion to
dismiss.

Prohibition is an extraordinary
remedy available to compel any tribunal, corporation, board, or person
exercising judicial or ministerial functions, to desist from further proceedings
in an action or matter when the proceedings in such tribunal, corporation, board
or person are without or in excess of jurisdiction or with grave abuse of
discretion^[1] and there is no appeal
or any other plain, speedy and adequate remedy in the ordinary course of
law.^[2] By writ of mandamus an
inferior tribunal, corporation, board or person may be commanded to perform an
act which the law specifically enjoins as a duty resulting from an office, trust
or station but only in the absence of a plain, speedy and adequate remedy in the
ordinary course of law.^[3]

For grave abuse of discretion to
prosper as a ground for prohibition, it must first be demonstrated that there
was such capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction or that the lower court has exercised its power in an arbitrary
or despotic manner by reason of passion or personal hostility. It must be so
patent and gross as to amount to an evasion or virtual refusal to perform the
duty enjoined or to act in contemplation of law.^[4]

Supposing petitioner’s theory to
be correct, that Philippine Charity Sweepstakes Office’s employees are not
public officers and its funds not public funds, still, the trial court cannot be
said to have gravely abused its discretion in not dismissing the information.
Even without the elements of “public officer” and “public funds”, the
information can suffice for conviction of a lesser offense, namely, estafa. This Court has ruled that a person charged under an
information for malversation of public funds can be
convicted of estafa, if the funds are in fact private
funds, the reason being that estafa is included as a
lesser, cognate offense in relation to malversation.^[5]

Finally, petitioner has an
adequate remedy in the ordinary course of law by way of appeal in due time. Such
being the case, the extraordinary remedies of prohibition and mandamus cannot be
resorted to.^[6]

The ruling of this Court in Solidum vs. Hernandez, 117 Phil. 335—which involved a
petition for “prohibition and/or mandamus”, filed by the accused upon denial of
his motion to quash on the ground that the facts charged do not constitute an
offense applies squarely to this case:

“Furthermore, there is no
exigency in this instant proceeding which would justify a disregard for the
time-honored rule that prohibition is granted only where no other remedy is
available which is sufficient to afford redress (III MORAN, Comments on the
Rules of Court, p. 174). For this particular case, We
hold the view that the observation of the City Fiscal that ‘the obvious and only
remedy available to the appellee is appeal in due time
from the decision that the appellant Court might render in the case’ is valid
and well taken. And, as the herein
respondent has another and complete remedy at law either by appeal or
otherwise, We need proceed no further to
justify the lifting of the writ issued by the Court of Appeals.” (Italics
supplied.)

PREMISES
CONSIDERED,
the judgment appealed from is hereby affirmed, with costs.

IT IS SO
ORDERED.

Bengzon, C.J., Bautista Angelo, Reyes,
J.B.L., Barrera, Paredes, Regala, Makalintal and Zaldivar, JJ.,
concur.

^[1] So Chu
et al. vs. Nepomuceno, 29 Phil. 208; Tayko vs. Capistrano, 53 Phil. 866; Ma-no Sugar Central Co.
vs. Barrios, 79 Phil. 666. See Sec. 2, Rule 65, Rules of
Court.

^[2] Almarza vs. Salas, 47 Phil. 724; Asinas vs. Court of First Instance of Romblon, 51 Phil. 665; Ton & Coo Teng Hee vs. Santamaria, 54 Phil. 371.

^[3] Sec. 3, Rule 65, Rules of
Court.

^[4] Leung Ben vs. O’Brien, 38 Phil.
182; Salvador Campos y .Cia. vs. Del Rosario, 41 Phil.
45; Bibby de Padilla vs. Horilleno, 60 Phil. 511; Tavera-Luna, Inc. vs. Nable, 67
Phil. 340; Abad Santos vs. Province of Tarlac, 67 Phil. 480; Alafriz vs.
Nable, 72 Phil. 278.

^[5]
U.S. vs. Solis, 7 Phil.
195.

^[6] Almarza vs. Salas, supra.; Asinas vs. Court of First Instance of Romblon. supra.; Tong & Coo
Teng Hee vs. Santamaria, supra. Secs. 2 & 3, Rule 65.
Rules of Court.