THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ISIDORO T. POLICHER, DEFENDANT AND APPELLANT.

Isidoro T. Policher was charged with, and convicted of the complex crime of estafa
through falsification of public documents in the Court of First
Instance of Lanao which sentenced him to ten years and one day of prision mayor with
the corresponding accessories of the law, to pay a fine of P1,000, and
to indemnify Moros Somampot, Donato Marcos and Tindigan Dipatuan in the
sums of P4, P16 respectively, with costs.

The information which gave rise to the action against said accused reads as follows:

“That on or about and during the period intervening
from May 20, 1928, to May 29, 1930, in the municipal district of
Kolambugan, Province of Lanao, Philippine Islands, and within the
jurisdiction of this court, said accused, the then duly appointed
treasurer of said municipal district and as such was in charge and
responsible, among other official duties, for the issuance of cedula
certificates in said municipal district of Kolambugan, voluntarily,
unlawfully and feloniously, and with grave abuse of his official
position and with intent to gain and of prejudicing and defrauding
Moros Somampot, Donato Marcos and Tindigan Dipatuan, falsified cedula
certificates G-Nos. 3844057, 3222523, 3843641, 3843629, 3844005,
3221650, 3221649, 3221752 and 3221753, by erasing the names written
thereon of persons to whom said cedula certificates had originally been
issued so as to reissue them, and in fact he reissued them, in order to
appropriate for himself, and in fact he voluntarily, unlawfully and
feloniously appropriated for his own use and benefit, the proceeds of
this reissuance of the cedula certificates in question, amounting to
P36, to the damage of said Moros Somampot, Tindigan Dipatuan, and
Donato Marcos in the sums of P4, P16 and P16, respectively. Contrary to
law.”

The accused appealed from the judgment rendered against him,
assigning in his brief three alleged errors as committed by the trial
court, to wit:

“1. The lower court erred in not holding that all
the webs of circumstances leading to the prosecution of the crime were
deliberately planned and ingeniously manipulated by the enemies of the
acused to satisfy their lust of vengeance.

“2. The lower
court erred in giving credit to the self-contradicting and perverted
testimony of the three more witnesses for the prosecution.

“3. The lower court erred in convicting the defendant-appellant of the crime of estafa thru falsification of public documents beyond reasonable doubt and in not absolving him from all criminal responsibilities.”

The evidence shows that the appellant was the municipal treasurer
of the municipal district of Kolambugan, of the Province of Lanao, for
at least some years prior to February 27, 1927, the date on which the
witness for the prosecution, Felix Jalasan, entered the service as
clerk under said appellant. Prior to the date above stated, he had
acted as municipal treasurer of other municipalities, and in 1933, when
this case was tried, he had already been in the Government service as
municipal treasurer for about eleven years.

In May, 1928, the appellant, in his own handwriting, issued cedulas
Nos. 3221649 (Exhibit F-l), 3221650 (Exhibit G-1), 3221752 (Exhibit
H-1) and 3221753 (Exhibit 1-1), stated in the information, the first
two in favor of Mamoncar Bomantay and the last two in favor of Macaraub
Bangor. In 1929 said appellant’s office issued cedulas Nos. 3844057
(Exhibit A-1), 3222523 (Exhibit B-1), 8843641 (Exhibit C-1), 3843629
(Exhibit D-1) and 3844005 (Exhibit E-1), also stated in the
information, in favor of Daniel Calumba, Ditual, Balinting Alongan,
Ditual Macaagan and Salangan, respectively.

All the blanks of said first four cedulas (F-1, G-1, H-1, and I-1)
were filled in by the appellant himself in his own handwriting, and
those of the last five (A-1, B-1, C-1, B-1 and E-1), intended for entry
of the personal record of the taxpayers, all with respect to Exhibit
A-l and partially with respect to the rest, or B-1, C-1, D-1 and E-1,
were filled in by Felix Jalasan, according to the stub of the first,
Exhibit A-l, and the duplicates of the others, Exhibits B-1, C-1, D-1
and E-1. The only spaces of these cedulas which could be filled in then
were those intended for the names, said witness Jalasan having written
therein those of Ditual, Balingting Alongan, Ditual Macaagan and
Salangan, respectively, because they were the only data then available-.

Instead of delivering the nine cedulas in question to the taxpayers
who had paid for them, they were retained in the appellant’s office on
the ground that the interested parties had not furnished all the
necessary data relative to their personal circumstances. While waiting
for said data, the cedulas in question together with others were in the
custody of clerk Felix Jalasan. At this juncture, the appellant
summoned Moros Somampot, Tindigan Dipatuan and Donato Marcos to appear
before him in order to demand of them the payment of their back
cedulas. As soon as said three Moros had arrived at the appellant’s
office, he bade them enter and forthwith asked his clerk to deliver to
him the cedulas in question, that is, Exhibits A-l to 1-1 which, as
stated, were already partially filled out with the date appearing on
their respective stubs and duplicates, Exhibits A. B, C, D, E, F, G, H
and I, and which-were theretofore in the custody of said clerk. In
compliance with the appellant’s requirement said Moros then delivered
to him, the first P4, the second P8 and the third ¦P24, to complete the
sums which they had paid him for their cedulas on former occasions.

The various sums of P4 seated in cedulas Exhibits A-l to 1-1,
amounting to P36, and which were paid by the persons in whose favor
said cedulas had originally been issued, were duly deposited in the
safe and entered in the official records of the appellant (Exhibits
A-2, B-2, C-2, D-2, E-2, F-2, G-2, H-2 and 1-2); but those paid to him
by Moros Somampot, Tindigan Dipatuan and Donato Marcos when he
delivered to them the certificates which were already altered as they
are at present, were not deposited in the safe and do not appear to
have been entered by the appellant in any of his records, thus leading
to the logical conclusion that he misappropriated them.

The names on the cedillas in question showing that they were issued
in favor of said Moros Somampot, Tindigan Dipatuan and Donato Marcos,
and not to Daniel Calumba, Ditual, Balinting Alongan, Ditual Macaagan
and Salangan, are in the appellant’s handwriting, if credit is to be
given to the testimony of Miguel Burdeos, chief clerk of the provincial
auditor, who examined the accounts and investigated the appellant, and
that of Felix Jalasan, confidential clerk of said appellant. Both
witnesses who are familiar with the appellant’s penmanship by reason of
their long association with him, categorically affirmed that the
alterations appearing on the cedulas in question are in the appellant’s
handwriting. The testimony of said two witnesses and that of said three
Moros, who claimed to have delivered to the appellant the sums required
of them and received said cedulas from said appellant’s own hands,
jointly prove that it was the appellant and no other person who made
the alterations in the cedula certificates in question.

However, the appellant contends that it was not he who committed
the falsification or received the money which the three Moros claimed
to have delivered to him. In support of his contention, he insinuates
in his brief that Felix Jalasan might have made the alterations imputed
to him and that said witness did so serving as a tool for the vengeance
of chief of police Salvador C. Rabaya who harbored a grudge against him
because he had once deducted from Rabaya’s salary the payment of a
certain municipal tax due from the latter’s barber shop in Kolambugan,
Lanao. His testimony, however, is insufficient to destroy that of the
five witnesses for the prosecution particularly when the motive
attributed by him to said chief of police Salvador C. Rabaya is not of
such nature that it may be considered sufficient to have induced Rabaya
to plot against him in connivance with the witnesses for the
prosecution named Somampot, Tindigan Dipatuan, Donato Marcos, Felix
Jalasan and Miguel Burdeos. Furthermore, there is absolutely nothing of
record to show that there had actually been a plot against him.

Another argument used by the appellant in support of his contention
that Felix Jalasan might have been the author of the falsification is
that the handwriting on said cedulas is similar to his own handwriting
and also to that of Jalasan. Acting under this supposition, the
appellant, after the prosecution had presented its evidence, asked the
lower court to postpone the continuation of the trial at least until
the following session of said court in order to have the opportunity to
engage the services of a handwriting expert from Manila, who might be
able to determine the truth of his contention. The lower court justly
denied his petition, first, because he did not then assure that if the
handwriting expert were to testify he would declare that the
alterations appearing on the cedulas in question were made by Jalasan;
second, because when he entered the trial, he failed to reserve the
right later to present a handwriting expert to prove that the
alterations on the cedulas in question were not in his own handwriting;
and third, because although he then knew that the crime with which he
was charged was falsification of the cedulas stated in the information,
from October 5, 1932, when the information was filed, or nearly one
year prior to the holding of the trial, he neither made any effort to
look for a handwriting expert nor thought of setting up the defense
alleged by him later in his brief. Therefore, the belief that the
appellant’s purpose in asking for the suspension of the trial until the
following session of the court was merely to delay the action, as
stated by the fiscal at the trial, is not unfounded.

On the other hand, there is absolutely no reason to believe that
Felix Jalasan has distorted the facts in his testimony inasmuch as he
felt nothing but gratitude towards the appellant because the latter not
only gave him the job, as the appellant himself stated at the trial,
but also allowed him to continue in the service notwithstanding his
lack of efficiency during his first years of service until he (the
appellant) became pleased to retain him upon observing his progress and
diligence. Furthermore, it is not Felix Jalasan’s testimony or that of
Miguel Burdeos alone that points to the appellant as the author of the
falsification, but also that of the three Moros af orestated. It is the
testimony of said five witnesses, corroborated as it is by the
aforesaid documentary evidence of record, that denounces him and proves
his direct participation in the commission of the crime of
falsification.

After it has been proven that the appellant is guilty of
falsification and inasmuch as only one information had been filed
against him, (1) for how many crimes of said nature may he be held
liable? (2) Should he also be held liable for the crime of estafa
or that of malversation, having appropriated his collection from said
three Moros instead of depositing it in the Government coffers?

These are questions which necessarily arise after knowing the facts just stated.

In the opinion of this court, it is not the said three Moros
(Somampot, Tindigan Dipatuan and Donato Marcos) who suffered the damage
resulting from the falsification and the appropriation by the appellant
of the money collected from them, but the Government itself because
inasmuch as said Moros knew that the appellant was the public official
designated by law and by the constituted authorities to collect cedula
taxes, having done so for a long time, and furthermore, inasmuch as
they knew that they were obliged to pay said taxes, it should be stated
that they were only acting with absolute propriety when they delivered
to said appellant the sums which he demanded of them in payment of
their respective cedulas corresponding to former years. For the same
reason that they had no intervention in the administration of the
appellant’s office, it was not and it is not just to require that they
should have made sure that their money paid for said concept has been
deposited in the safe by the appellant and furthermore entered by him
in his corresponding records. When a public official, whose official
duty is to collect taxes, receives a payment in said concept, he makes
himself directly accountable to the Government for the money so
collected and received inasmuch as thereafter said money acquires the
character or forms part of the public funds and the tax on account of
which said payment was made should also thenceforth be considered paid
by the taxpayer without further responsibility on his part. To hold the
taxpayer responsible for the misappropriation of the money collected
for taxes due, by the public official who has collected and received
payment, would be not only unreasonable but also highly unjust.
Therefore, the crime committed by the appellant is not the complex
crime of estafa through falsification but nine falsifications of official or public documents, as are the cedulas, and malversation.

It is true that only one action was instituted and only one
information filed against the appellant but it is none the less true
that in said information he was expressly charged with nine acts of
falsification of public documents by reason of the issuance of nine
different cedulas. In the case of United States vs. Balaba
(37 Phil., 260), this court held that there is nothing to prevent the
imposition upon the accused of as many penalties as there are offenses
imputed to him and proven at the trial, if, as in this case, it
satisfactorily appears that he has consented to the action wherein said
crimes were imputed to him by failing to interpose on time, although he
could have done so, a demurrer on the ground that the information
charged him with more than one offense. The right to be charged with
not more than one offense in an information may be. waived, the only
exceptions to this rule being the cases where one of the offenses
charged has been a necessary means for committing the other and where
both have been the result of a single act, (Article 89 of the old Penal
Code; article 48 of the Revised Penal Code.)

As to the second question, this court is of the opinion that the appellant cannot be declared guilty of estafa because the proven facts show, for the reasons already stated, that the crime committed was not estafa
but malversation, which is a crime entirely different from the former
and for the existence of which some elements not belonging to estafa
are necessary. The appellant, upon entering trial, was undoubtedly
unprepared to defend himself from the charges for malversation and
falsification except only from falsification and estafa, and
it would be taking him by surprise if he were to be sentenced also for
malversation. It has been stated during the consideration of this case
that under the allegations contained in the information, the appellant
may also be declared guilty of malversation inasmuch as it has been
proven that he appropriated his collection from the aforesaid three
Moros instead of depositing It in the safe. In the information,
however, there is no allegation to justify the inference, without
resorting to the proven facts, that it is the Government that sustained
the injury resulting from the appellants crime. What the information
clearly expresses and states is that it was the three Moros in question
who sustained the injury. Therefore the various acts of malversation
committed by the appellant should not be taken into consideration in
this case because he was not charged therewith.

Inasmuch as the falsifications proven at the trial took place long
before the Revised Penal Code went into effect, the law applicable to
the case is undoubtedly the old Penal Code. Under the provisions of
article 88 of said Code, a penalty in excess of three-fold the most
severe penalty which the appellant deserves for one of said crimes
cannot be imposed upon him (or said nine crimes of falsification of
public documents. According to said Code, as amended by Act No. 2712,
each of said acts of falsification is punishable with prision mayor and a fine of from 250 to 12,500 pesetas.
In view whereof, and taking into consideration the fact that no
modifying circumstance of any kind has been proven, the penalty which
should be imposed for one of said crimes is eight years and one day of prision mayor which is the minimum of the medium period of prision mayor plus a fine of 250 pesetas.

Wherefore, by amending the appealed judgment, the appellant is
hereby sentenced, for the nine crimes with which he was charged and
convicted, to twenty-four years and three days of prision, which is threefold eight years and one day of prision mayor,
and to pay a fine of P150, with costs. In view, however, of the
provisions of Act No. 4103, the minimum of said penalty of twenty-four
years and three days of prision is fixed at six years. So ordered.

Street, Malcolm, Hull, Butte, and Goddard, JJ., concur.

VICKERS, J., with whom concurs AVENCENA, C. J., concurring and dissenting in part:

I concur in the decision of the majority convicting the defendant
of the crime of falsification of public documents as to each of the
cedulas in question, but I dissent from that part of the decision which
holds that he is not also guilty of malversation. This conclusion of
the majority rests upon the finding that the allegations in the
information are not sufficient to charge malversation. The principal,
if not the sole, reason for this finding appears to be the fact that it
is not alleged in the information that the Government was prejudiced by
the defendant’s misappropriation of the sums collected by him as
municipal treasurer from the Moros for cedulas. There is no question as
to the sufficiency of the evidence, and no objection was made to the
form of the complaint. Any defect therein was cured by the evidence,
which shows that the defendant while acting as municipal treasurer
collected from the Moros mentioned in the information the money in
question, but failed to account for it; that he altered and delivered
to the Moros certain cedulas belonging to other persons. The Moros were
not prejudiced, because the payments made by them were valid payments
of their cedula taxes.

It is charged in the information:

“That on or about and during the period intervening
from May 20, 1928, to May 29, 1930, in the municipal district of
Kolambugan, Province of Lanao, Philippine Islands, and within the
jurisdiction of this court, said accused, the then duly appointed
treasurer of said municipal district and as such was in charge and
responsible, among other official duties, for the issuance of cedula
certificates in said municipal district of Kolambugan, voluntarily,
unlawfully and feloniously, and with grave abuse of his official
position and with intent to gain and of prejudicing and defrauding
Moros Somampot, Donato Marcos and Tindigan Dipatuan, falsified cedula
certificates G-Nos. 3844057, 3222523, 3843641, 3843629, 3844005,
3221650, 3221649, 3221752 and 3221753, by erasing the names written
thereon of persons to whom said cedula certificates had originally been
issued so as to reissue them, and in fact he reissued them, in order to
appropriate for himself, and in fact he voluntarily, unlawfully and
feloniously appropriated! for his own use and benefit, the proceeds of
this reissuance of the cedula certificates in question, amounting to
P36, to the damage of said Moros Somampot, Tindigan Dipatuan, and
Donato Marcos in the sums of P4, P16 and P16, respectively. Contrary to
law.”

In my opinion the crime of malversation is sufficiently charged in
the body of the information. It is immaterial that in the information
the offense was erroneously designated as estafa instead of malversation, and the allegation that the offended party was the Moros is a mere conclusion of law.

It has been repeatedly held by this court that in criminal
procedure the character of the crime will be determined from the facts
alleged in the complaint and not by the qualification of the crime made
in the title to the complaint. (U. S. vs. Supila, 13 Phil., 671; U. S. vs. Treyes, 14 Phil., 270; U. S. vs. Jeffrey, 15 Phil, 391; Davis vs. Director of Prisons, 17 Phil., 168.)

The designation of the crime by name in the caption of the
information is a conclusion of law on the part of the fiscal and is a
usurpation of the powers of the court and, if binding, would be in
effect an adjudication by him of the crime of which the accused must be
convicted if he were to be convicted of any offense. The denial of the
designation of the fiscal raises no issue. (U. S. vs. Lim San, 17 Phil., 273; U. 8.vs. Vega, 31 Phil., 450.)

As a matter of fact the court is the only person or institution
authorized by law to say what crime has been committed. Such
designation is a conclusion of law resulting from the facts proved upon
the trial. Until that time arrives it is of no consequence, either to
the people or to the accused, what the technical name of the crime
charged may be. (U. S. vs. Lim San, 17 Phil., 273.)

In determining the nature of the crime charged in a complaint the
body and not the title of the complaint must be examined. The
designation of the crime as found in the title of the complaint is not
controlling. (U. S. vs. Cabe, 36 Phil., 728; U. S. vs. Ondaro, 39 Phil., 70.)

It was held in the case of the United States vs. Go Chanca
(23 Phil, 641), that a complaint is sufficient if the facts are alleged
and set out in such a manner as to enable a person of common
understanding to know what is intended, and the court to pronounce
judgment according to right; that a complaint is sufficient if it
describes the offense in the language of the statute, if the statute
contains all of the essential elements constituting the particular
offense; that it is not necessary, however, to follow the language of
the statute in a complaint; that the complaint is sufficient if it
describes the crime defined by law.

It is not necessary for the protection of the substantial rights of
the accused, nor for the effective preparation of the defense, that he
be informed of the technical name of the crime for which he stands
charged The crime of which the defendant stands accused is that
described by the facts stated in the information and not that
designated by the. fiscal in the preamble thereof. An issue in a
criminal action is one of fact. It is raised by the allegation of facts
in the information and the denial of these facts by a plea of not
guilty. (U. S. vs. Lim San, 17 Phil., 273.)

Sections 7 and 10 of General Orders, No, 58 read as follows :

“SEC. 7. Except when time is a material ingredient
of an offense, the precise time of commission need not be stated in a
complaint or information, but the act may be alleged to have been
committed at, any time before the filing thereof. And when an offense
shall have been descriEed with sufficient certainty to identify the
act, an erroneous allegation as to the person injured shall be deemed
immaterial.”

“SEC. 10. No information or complaint is
insufficient, nor can the trial, judgment, or other proceedings be
affected by reason of a defect in matter of form which does not tend to
prejudice a substantial right of the defendant upon the merits.”

In the case of the United States vs. Kepner (1 Phil., 519, 526), this court said:

“The allegation of the complaint that the unlawful
misappropriation of the proceeds of the warrant was to the prejudice of
Aun Tan may be disregarded by virtue of section 7 of General Orders,
No. 58, which declares that when an offense shall have been described
in the complaint with sufficient certainty to identify the act, an
erroneous allegation as to the person injured shall be deemed
immaterial. In any event the defect, if defect it was, was one of form
which did not tend to prejudice any substantial right of the defendant
on the merits, and can not, therefore, under the provisions of section
10 of the same Order, affect the present proceeding.”

It is a familiar rule that defects in the form of a complaint are
waived unless objected to in the trial court, and that such defects may
be Cured by the evidence. (V. S. vs. Li-Pao, 2 Phil., 458; U. S. vs. Del Castillo, 35 Phil., 413.)

In the case of Mortiga vs. Serra and Obleno (5 Phil., 34;,
this court held that objections to the complaint based upon an
insufficient statement of the facts constituting the offense will not
be considered by this court when they were not presented to the court
below. In affirming the decision of this court the Supreme Court of the
United States (Serra vs. Mortiga, 204 U. S., 470; 11 Phil.,
762) held that while the complaint on a charge of adultery under the
Penal Code of the Philippine Islands may be fatally defective for lack
of essential averments as to place and knowledge on the part of the man
that the woman was married, objections of that nature must be taken at
the trial, and if not taken, and the omitted averments are supplied by
competent proof, it is not error for the Supreme Court of the
Philippine Islands to refuse to sustain such objection on appeal.

ABAD SANTOS, J., with whom concur VILLA-REAL and IMPERIAL, J., dissenting:

Upon the evidence presented in this case, I am not convinced of the
guilt of the appellant, and I believe that he is entitled to an
acquittal.

It appears that the appellant was a treasurer of the municipal
district of Eolambugan, Province of Lanao. Prior to his assignment to
Kolambugan, he acted as treasurer for other districts. Before the
institution of this proceeding against him, appellant had served the
Government as municipal treasurer for ten years or more. His record
during this period appeared to be without blemish.

The unpopularity of tax-gatherers, such as the appellant was, is
proverbial. In Mindanao particularly, municipal treasurers are among
the most hated of public servants. Unaccustomed to the modern ways of
government, the Moros.naturally hate those who would compel them to pay
taxes. Under these circumstances, it is rendered an easy matter for any
one who has certain influence to fabricate charges against municipal
treasurers based upon the testimony of three ignorant Moros, such as
the three principal witnesses for the prosecution in this case appear
to be. There is enough in the record to indicate that vindictiveness on
the part of the chief of police of Kolambugan lay behind the
prosecution of the appellant. It is by no means improbable, therefore,
that the appellant is the victim of a frame-up.

In this situation, it seems the part of prudence and wisdom to
scrutinize the evidence with the utmost caution and to give the
defendant the amplest opportunity to prove his innocence. The important
issue of fact involved in this case was whether the writings appearing
on certain documents were those of the appellant, or whether they were
made by someone who tried to imitate his hand-writing. Appellant asked
for an opportunity to present a handwriting expert to establish his
contention that said writings were not his, but, on objection of the
prosecution, the court below only granted him twelve days within which
to produce a hand-writing expert. Considering that the trial took place
in Lanao, and that hand-writing experts are scarce, the shortness of
the period granted by the trial court was, as the defense contended,
tantamount to a denial of its petition. Under the peculiar
circumstances of this case, I consider the testimony of a hand-writing
expert essential to the just determination of the guilt or innocence of
the appellant, and the refusal of the trial court, based on the
objection of the prosecution, to grant the appellant sufficient time to
engage the services of a hand-writing expert, was, in my opinion, a
denial of his right to a fair trial.