THE PHILIPPINE NATIONAL BANK, PLAINTIFF AND APPELLANT, VS. JULIO TUGAB, DEFENDANT AND APPELLEE.

In the justice of the peace court of Bayombong, Nueva Vizcaya, the
provincial fiscal of said province filed an information against the
herein defendant charging him with having misappropriated the sum of
P5,498.44 belonging to the Government of the Philippine Islands, and
the sum of P829.60 belonging to the Philippine National Bank which sums
of money were under his care and custody as cashier in the office of
the provincial treasurer of Nueva Vizcaya. Simultaneously said fiscal
brought a civil action against said defendant for the recovery of the
said sums of money, and upon petition tiled by said fiscal the court
ordered the attachment of the properties of the defendant, which
attachment was subsequently lifted upon the filing of a bond. Because
of a demurrer interposed to the complaint the fiscal amended the latter
and filed two separate complaints one for the Province of Nueva Vizcaya
and the other for the Philippine National Bank.

The criminal
case for malversation of public funds was remanded to the Court of
First Instance of said province in view of the waiver by the accused of
the preliminary investigation. As soon as said case was received in
said court the fiscal filed a motion for dismissal on the ground that
upon another detailed investigation, it was discovered that the funds
were not misappropriated by the defendant but by Dioscorro Navarrete.
The case was dismissed by the court and the fiscal filed against
Dioscorro Navarrete an information for qualified theft. After the
preliminary investigation, and the case having been elevated to the
Court of First Instance, after the corresponding trial Navarrete was
acquitted because of reasonable doubt. In view thereof, the acting
provincial fiscal again filed an information against the herein
defendant for malversation of the same public funds through negligence
in the care and custody of the same which was the cause of their
abstraction and loss. When this new criminal case reached the Court of
First Instance and after the defendant had waived the preliminary
investigation the provincial fiscal amended the information and filed
another charging said defendant with the same crime but alleging
therein that he himself misappropriated said funds. Trial having been
held and all the evidence adduced, the court, in its decision of June
29, 1935 acquitted the defendant, with costs de oficio and cancelled the bond.

Upon his acquittal in the criminal case the defendant filed motions in
the two civil cases which were then pending, praying that said cases be
dismissed on the ground that the actions no longer lie in view of his
acquittal in the said criminal case. The defendant contended that the
court having found in its decision that he was not guilty of the crime
of malversation, neither having misappropriated nor having been
negligent in the custody of said funds, he did not therefore incur the
civil liabilities alleged in the complaints. After considering the
arguments adduced by the parties, the court in its order of August 24,
1935 granted the motions and dismissed the two civil cases, without
costs, setting aside the preliminary attachment of the properties of
the defendant. From this order the Province of Nueva Vizcaya and the
Philippine National Bank, after their motions for new trial had been
denied, and after excepting to the order denying the same, took this
appeal.

The appellants attribute to the appealed order the
following errors: In holding that the negligence of the appellee
alleged in the complaints is already res judicata; in
admitting as evidence the judgment of acquittal rendered in criminal
case No. 850 instituted against the appellee; in lifting the
preliminary attachment of the properties of the appellee; in dismissing
the civil cases without trial and without having first received the
evidence of the appellants; and in denying the motions for new trial
filed by the appellants.

1. The amended information
   filed in criminal case No. 850 against the appellee for malversation,
   contains the following allegations:

   “That on or about
   the first day of January, 1934, in the municipality of Bayombong,
   Province of Nueva Vizcaya, the said accused, being then and there the
   cashier in the office of the provincial treasurer of Nueva Vizcaya and
   as such, accountable for the funds of the province and those of the
   agency of the Philippine National Bank, established in the said
   municipality of Bayombong, Nueva Vizcaya, with intent of gain and
   taking advantage of his position and as such cashier, did willfully,
   maliciously and criminally misappropriate, embezzle and carry away for
   his personal use and benefit, the amount of P6,328.04, P5,498.44 of
   which belonged to the funds of the provincial treasury of Nueva Vizcaya
   and the remaining P829.60 to the agency of the said Philippine National
   Bank, to the prejudice and damage of the Provincial Government of Nueva
   Vizcaya and the Philippine National Bank in the said amounts of
   P5,498.44 and P829.60, respectively.”

   In the decision rendered in said case, the court, among other conclusions, said:

   “The accused is declared not guilty of the crime of malversation of
   public funds imputed to him in the information, nor of direct
   appropriation of the money lost, nor of negligence in the custody of
   the funds entrusted to his care and responsibility.”

   The trial court dismissed the said civil cases because according to
   said court, it could no longer pass upon the negligence of the appellee
   with respect to the misappropriation of said funds for the simple
   reason that in the decision rendered in the criminal case it was held
   and declared that said appellee did not act negligently in the custody
   of said funds. This conclusion of the trial court is undoubtedly based
   upon articles 100 and 104 of the Revised Penal Code and upon article
   116 of the Spanish Law of Criminal Procedure, reading as follows:

   “Art. 100. Civil liability of person guilty of felony.—Every person criminally liable for a felony is also civilly liable.”

   “Art. 104. What is included in civil liability.—The civil liability established in articles 100, 101, 102, and 103, of this Code includes:

   “1. Restitution;

   “2. Reparation of the damage caused;

   “3. Indemnification for consequential damages.”

   “Art. 116. The extinction of the criminal action does not carry with it
   the extinction of the civil action, unless the extinction is by virtue
   of a declaration in a final judgment that the fact from which the civil
   action could have arisen did not exist.

   “In the other cases, the person who has a right to the civil action may
   institute the same before the competent court and by the proper civil
   action, against whoever is under obligation to make restitution of the
   thing, reparation or indemnification of the damage suffered.”

   According to article 116 the civil action to demand an obligation
   arising from the commission of a crime is extinguished when a final
   judgment is rendered in a criminal case declaring that the facts which
   could have given rise to civil liability did not exist. This provision
   of law as interpreted and applied by this court in the cases of Almeida
   Chan Tanco vs.
   Abaroa (8 Phil., 178); which decision was affirmed by the Supreme Court
   of the United States (218 U. S., 476; 54 Law. ed., 1116; 40 Phil.,
   1056); Berbari vs. Concepcion and Prosecuting Attorney of Manila (40 Phil., 837); Wise & Company vs. Larion (46 Phil., 314); and Francisco vs. Onrubia (46 Phil., 327).

   But this ruling is not applicable to the present case be cause in the
   information which resulted in the defendant’s acquittal of malversation
   it was not charged that the said defendant had been negligent in the
   custody of the funds and that by reason of his negligence said funds
   were lost or misappropriated by other persons, but it was therein
   charged that he himself misappropriated said funds which were under his
   care and responsibility. Consequently the trial court had no
   jurisdiction to make the pronouncement that the appellee did not commit
   the crime for not having been negligent in the custody of said funds.
   According to article 217 of the Revised Penal Code malversation of
   government funds or properties may be committed by direct appropriation
   of the same by the public officer or when through negligence or lack of
   care by the latter government funds or properties are unlawfully
   misappropriated by others. In the amended information under which the
   appellee was tried, the fiscal charged-him with the first crime,
   wherefore, it is clear that the trial court could not have lawfully
   sentenced nor acquitted him of the second, nor could it make a finding
   of exemption from civil liability, which is invoked by the appellee and
   upon which the appealed order is based.

   There is another reason which makes the appealed order untenable.
   Section 633 of the Revised Administrative Code provides that any public
   officer charged, by reason of his official duties, with the custody of
   government funds and properties is primarily responsible therefor to
   the government. Said provision reads as follows:

   “Sec. 633. Persons accountable for Government funds or property.—Every
   officer of the Government of the Philippine Islands whose duties permit
   or require the possession or custody of Government funds or property
   shall be accountable and responsible therefor and for the safekeeping
   thereof in conformity with the provisions of this law.”

   The civil liability established by this section is distinct and
   independent of the responsibility arising from the crime defined by
   article 100 of the Revised Penal Code, wherefore, the extinction of
   civil liability mentioned in article 116 of the Spanish Law of Criminal
   Procedure is not here applicable.

   In conclusion we hold that, the civil actions instituted by the
   plaintiffs lie against the defendant, first, because the appellee was
   not acquitted of the crime of malversation which gave rise to the civil
   liability sought in said actions, and, second, because such liabilities
   come under section 633 of the Revised Administrative Code, wherefore,
   article 116 of the Spanish Law of Criminal Procedure has no application
   thereto.

2. The trial court did not err in admitting as evidence the Judgment
   rendered in criminal case No. 850. The motion for dismissal was based
   upon the acquittal of the appellee and upon the finding made in the
   decision of the court to the effect that the appellee was not guilty of
   the crime of malversation nor of negligence in the custody of said
   funds. Said decision is the best proof of the allegations of the motion
   and it was the duty of the court to admit the same during the trial
   thereof.

3. As we have declared null
   and void the order dismissing the two cases, the lifting of the
   attachment of the appellee’s properties, based upon said dismissal, is
   likewise unjustified.

4. When a
   motion to dismiss a case, on the ground that the action has prescribed
   or that for any reason it does not lie, is presented, the court must
   hear the parties with respect to said motion and receive the evidence,
   if any be offered, and it does not commit any error if in considering
   and resolving said motion it does not at the same time hear and try the
   case on the merits. The motion, in such a case, raises a question which
   must first be acted upon.

5. The last
   assignment of error is a corollary of the preceding ones. The appealed
   order being null and void, for the reasons above-stated, the court
   should have granted the motion for new trial tiled by the appellants
   and reopened the case.

Wherefore, the order
appealed from is hereby reversed, the two civil cases are reinstated,
and the trial court is ordered to hear and thereafter decide the same
in accordance with the evidence and the law; with the costs of this
instance against the appellee. So ordered.

Avanceña, C. J., Villa-Real, Diaz, Laurel, and Concepcion, JJ., concur.