THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. TORIBIO C. TABANAO, DEFENDANT AND APPELLANT.

Appeal from the decision of the Court of First Instance of Cebu, the Hon.
Modesto R. Ramolete, presiding, sentencing the accused-appellant to an
indeterminate penalty of 3 years of prision correccional as minimum, to 7
years of prision mayor as maximum and to pay the costs.

Appellant Toribio C. Tabanao was charged with malversation of public funds in
Criminal Case No. V-5773 of the Court of First Instance of Cebu. The information
alleges:

“That on or about the 23rd day of August, 1956 and for sometime prior
thereto, in the municipality of Moalboal, province of Cebu, Philippines, and
within the jurisdiction of this Court, the above-named accused, then employed as
Clerk-Bookkeeper of the Office of Municipal Treasurer of said municipality, and
as such had among his official duties the collection of taxes and other public
properties and issuing official receipt for said collection and hence
accountable for public funds in his possession, with deliberate intent of gain
and taking advantage of his position, did then and there wilfully, unlawfully
and feloniously misappropriate for his own use and benefit the amount of Two
Thousand Three Hundred Seventy-Six Pesos and forty three centavos (P2,376.43),
which was then in his possession, to the damage and prejudice of the government
of the amount aforestated.”

Arraigned on March 3, 1960, the defendant-appellant, assisted by his counsel,
pleaded guilty to the charge. Upon the basis of his plea, the trial court found
him guilty beyond reasonable doubt as charged and appreciating his plea of
guilty as a mitigating circumstance, without any aggravating circumstance to
offset it, forthwith sentenced him to suffer the penalty above stated. No
indemnity was decreed because the defendant had previously fully reimbursed the
amount misappropriated, (pp. 2-3 t.s.n.)

In his brief, appellant claims that after the liberation, his son developed
an illness due to the war; that it was extreme necessity due to the illness of
his son that drove him to commit the offense charged; that the amount was taken
on several occasions to finance the lingering illness of his son; that the
assistant provincial fiscal had recommended to the trial judge that in addition
to the plea of guilty, his poverty be considered also as another mitigating
circumstance. These statements were objected to by theSolicitor General on the
ground that they are not supported by the record.

Appellant argues that under par. 2 of Art. 217 of the Revised Penal Code, as
amended by Republic Act No. 1060, the penalty for malversation of an amount of
more than P200 but not more than P6,000 is prision correccional in its
maximum period to prision mayor in its medium period, or from 4 years,
2 months, and 1 day to 10 years; that the fiscal having recommended to the trial
judge that appellant’s extreme poverty be considered as another mitigating
circumstance, appellant should be credited with two (2) mitigating circumstances
and consequently, the penalty imposable upon him should be prision
correccional in its minimum, which is from 6 months and 1 day to 2 years
and 2 months, and that applying the Indeterminate Sentence Law, the sentence
would only be for an indeterminate penalty ranging from the maximum of arresto
mayor to the minimum of prision correccional, or 4 months and 1 day to
2 years and 4 months.

The penalty for the offense charged in this case is not prision
correccional in its maximum period to prision mayor in its medium
period, as the appellant argues; but prision mayor in its minimum and
medium periods, as provided for in Rep. Act 1060, amending Art. 217 of the
Revised Penal Code. The penalty lower by one degree of this penalty is
prision correccional in its medium and maximum periods. Applying the
Indeterminate Sentence Law and taking into consideration the mitigating
circumstance of plea of guilty, the minimum of the penalty is from 2 years, 4
months and 1 day to 6 years of prision correccional while the maximum is
from 6 years and 1 day to 7 years and 4 months of prision mayor.

The Indeterminate Sentence Law provides:

“SEC. 1.—Hereafter, in imposing a prison sentence for an offense punished by
the Revised Penal Code, or its amendments, the court shall sentence the accused
to an indeterminate sentence the maximum term of which shall be that which,
in view of the attending circumstances, could be properly imposed under the
rules of the said Code, and to a minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense; * *
*“

The penalty prescribed for the offense charged in the case at bar is
prision mayor in its mimium and medium periods, or from 6 years, 1 day to
10 years. In view of the presence of one mitigating circumstance and no
aggravating, the proper penalty imposable is the minimum of the penalty
prescribed, which is from 6 years, 1 day to 7 years, and 4 months of prision
mayor. One degree lower to that penalty prescribed by the Code is
prision correccional in its medium and maximum periods, or 2 years, 4
months, 1 day to 6 years. The penalty imposed by the trial court as minimum is 3
years. This is within the range of the penalty next lower in degree to that
prescribed by the Code; the 7 years maximum is also within the range of the
penalty properly imposable under the circumstances.

It is also argued that extreme poverty should be considered as an additional
mitigating circumstance, for which reason the penalty could be lowered by two
degrees because of two mitigating circumstances, namely plea of guilty and
poverty. The mitigating circumstance of poverty was neither admitted by the
prosecution nor found by the judge. According to the record, of the P2,376.43
misappropriated, only P50.00 was used for the illness of appellant’s son.
Furthermore, appellant may not claim poverty for he was a clerk receiving a
salary. Poverty is a condition worse than that of a poor person. (Webster’s
International Dictionary) He may have been poor, but with his salary as clerk he
certainly was not in a condition of poverty. The claim of an additional
mitigating circumstance can not, therefore, be justified.

Finding no error in the sentence imposed, the judgment is hereby affirmed,
with costs.

So ordered.

Bengzon, C. J., Padilla, Bautista Angelo, Reyes, J. B. L., Paredes,
Dizon, and Makalintal, JJ., concur.