PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. ZOSIMO MONTEMAYOR AND CIRIACO DUCUSIN, APPELLEES AND DEFENDANTS.

Appeal on questions of law from an order of the Court of First Instance of
Bukidnon, entered in its Criminal Case No. 602, granting the accused’s motion to
dismiss the charge for illegal use of public funds, on the ground that the facts
alleged in the information do not constitute an indictable offense.

Zosimo Montemayor, President of the Mindanao Agricultural Colleges, organized
and chartered by Republic Act 807, and Ciriaco Ducusin, property custodian of
the same College, were jointly accused in an information filed by the Provincial
Fiscal on 9 July 1956, couched in the following terms:

“That on or about during the period from August 1, 1953 to December 1, 1953,
both dates inclusive, in barrio Musuan, Municipality of Maramag, Province of
Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the
accused Zosimo Montemayor then, and until now, President of the Mindanao
Agricultural College, a government institution established and existing under
the provisions of law, did them and there, willfully, unlawfully and feloniously
direct, instruct, and order the accused Ciriaco Ducusin to use students’
property deposits for the purchase of supplies and materials needed by the
college, and the latter, then the property custodian of said college and who had
been keeping said fund under his administration, by virtue of said instruction
and order, did then and there willfully, unlawfully and feloniously use, spend
and apply the amount of P1,911.64 out of said fund for the purchase of 9991.8
gallons of gasoline, 965.1 gallons of crude oil and 131.5 gallons of SAE 30 for
the use of said college, thereby applying said amount to a public use other than
that for which it was appropriated by Resolution No. 13 of the Board of Trustees
of said college namely, for the payment of the losses and breakages of college
instruments and equipments incurred by students.'”

Upon the motion of the accused, the Court dismissed the information by the
following order:

“Upon consideration of the Motion to Quash, dated January 19, 1960, filed by
counsel for the accused in the above-entitled case and the opposition thereto,
dated March 7, 1960, presented by the Provincial Fiscal, the Court concurs with
the arguments stated in the said motion to quash and finds that deposits in
question are not of the character of public funds which have been appropriated
by law or ordinance within the purview of Article 220, paragraph 2, of the
Revised Penal Code, and applied by the accused for uses other than those
intended, so as to render them liable for the crime of illegal use of public
funds under the above-mentioned penal provisions.”

Article 220 of the Revised Penal Code penalizes the illegal use of public
funds in the following terms:

Art. 220. Illegal use of public funds or property.—Any public officer
who shall apply any public fund or property under his administration to any
public use other than that for which such fund or property were appropriated by
law or ordinance shall suffer the penalty of prision correcional in its
minimum period or a fine ranging for one-half to the total value of the sum
misapplied, if by reason of such misapplication, any damage or embarrassment
shall have resulted to the public service. In either case, the offender shall
also suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty
shall be a fine from 5 to 50 per cent of the sum misapplied.”

The state contends that it is error for the lower court to declare that the
amounts deposited by the students were not public funds. This is undoubtedly
correct, for the amounts paid by the students to the college, in order to answer
for the value of materials broken, were no more “deposits” in law than bank
“deposits” are so. There was no showing that the college undertook to keep safe
the moneys in question and return it later to each student in the very same
coins or bills in which it had been originally received. The Mindanao Colleges
merely bound itself to reimburse or repay to each student the amount “deposited”
by him or her, after deducting or setting off the value of broken equipment. The
relation thus established between college and student was one of debtor and
creditor, not one of depositor and depository; the transaction was a loan, not a
deposit. As a loan, the College acquired the ownership of the moneys paid by the
students, subject only to the obligation of reimbursing equivalent amounts,
unless a deduction should happen to be due. Such being the case, the moneys
became public funds, from the time the College received them, since the College
was, and is, a public entity.

But the matter does not end there. To constitute the crime charged, there
must be a diversion of the funds from the purpose for which they had been
originally appropriated by law or ordinance (R.P.C. Art. 120); and, as correctly
found by the court below, the students’ payments had not been as appropriated.
The resolution of the college authorities that the amounts paid by the students
should be later refunded nowhere implied that the repayment was to be made
precisely out of the moneys received, and as the refund could be made out of any
available funds of the College, there was no appropriation for a particular
purpose that was violated by these accused.

Wherefore, the order appealed from is affirmed. No costs.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera,
Paredes, Dizon, Regala, and Makalintal, JJ., concur.