THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JOSE KERR, DEFENDANT AND APPELLANT.

United States versus Kerr

The Case

This is a criminal case from the early American period in the Philippines. The United States, as plaintiff, prosecuted Jose Kerr, a property clerk of the provincial government of Pampanga, for misappropriating public property placed under his official charge. The charge was that he applied the property to his own use, to the detriment and hindrance of the public service. The case matters because it fixes the elements of the crime of misappropriation of public property under the old Penal Code, and it holds that the special aggravating circumstance of prejudice to the public service must be proved, not presumed. It is a staple in criminal law examinations on malversation and on the distinction between the paragraphs of the governing article.

Procedural History

The accused was charged before the trial court with misappropriation of property of the provincial government of Pampanga, to the detriment or hindrance of the public service. The trial court found him guilty as charged and imposed the penalty prescribed in the second paragraph of the governing article. From that judgment the accused appealed to the Supreme Court. The Supreme Court reviewed the evidence and reversed the judgment of conviction under the second paragraph, convicting him instead under the third paragraph.

Facts

Jose Kerr was the property clerk of the provincial government of Pampanga. Property of the province was placed under his charge as such official. The evidence showed that he made temporary use of some twenty-six pieces of galvanized iron, together with barb wire and netting, for personal purposes. He also carried away and stored in his house paint, linseed oil, and other property of the province, which the prosecution witnesses estimated to be worth one hundred fifty-five pesos and forty-eight centavos in all.

When a complaint was filed against him charging misappropriation, he immediately returned the property to its proper owner. At or about the same time he paid the provincial treasurer the sum of one hundred fifty-five pesos and forty-eight centavos, the total estimated value of the property alleged to have been misappropriated. He testified that he made this payment merely to save his official bondsmen from anxiety or trouble.

On the witness stand the accused admitted making temporary use of some twenty pieces of galvanized iron to cover cement work being done at or near his own house. He had also admitted to the chief clerk of the provincial treasurer that he had taken the property for his own use, though at trial he insisted that he brought some of it to his house for safe-keeping. The Court found that he did take the property for his own use, but that the weight of the evidence supported his claim that he was making only temporary use of the indestructible property, and that he believed the paint and linseed oil were practically worthless, having been condemned for public use and retained only because no definite steps had been taken for their destruction.

Issues

• Whether or not the accused is guilty of misappropriating public property under the article penalizing that offense.
• Whether or not the misappropriation was attended by the circumstance of prejudice or damage to the public service, so as to bring the offense under the second paragraph of the article.
• Whether or not the property misappropriated was placed under the official charge of the accused, it appearing that it was not carried on the regular property account of the province.
• Whether or not the accused is entitled in this proceeding to a refund of the amount he paid the province over and above the restitution of the property.

Applicable Provisions

The decision applies and construes article 392 of the old Penal Code. The Court quotes the doctrine drawn from its earlier ruling in United States versus Duran, which states the requirement for the higher penalty:

It is well settled that the contents and mutual relation of the paragraphs of article 392 (407 of the Spanish Code) in addition to the express terms of the first paragraph, require for the infliction of the penalties prescribed therein, evidence of the existence of the characteristic circumstance, which must be fully proven and can not be presumed, that the service has suffered some irregularity by reason of the malversation—not the malversation itself, but some other detriment derived therefrom or some irregularity which is distinctly prejudicial to the good order, policy, and regular course of the public administration.

This passage bears directly on the case because it supplies the missing element that the trial court presumed but the prosecution failed to prove.

Ruling

On the first issue, the Court held that there can be no doubt the accused, in carrying away and using government property for his private personal purposes, violated the express provisions of article 392. Guilt of misappropriation of public property is therefore established.

On the second issue, the Court held that the circumstance of prejudice to the public service was not proven. The witness James testified that the misappropriation caused prejudice because the property might have been used by the province. The Court found this inconclusive, because on further examination the witness admitted he could not state in what the detriment or hindrance consisted other than the mere fact that the goods had been misappropriated. Following United States versus Duran, that circumstance must be fully proven and cannot be presumed. The Court was satisfied that the accused did not believe he was doing the province any practical injury or taking anything of practical value. The offense therefore falls, not under the second paragraph, but under the third paragraph of article 392.

On the third issue, the Court rejected the contention that the property was not under the official charge of the accused merely because it was not carried on the regular property account. Both the accused himself and the chief clerk of the provincial treasurer testified that all of the property was placed under his charge as property clerk.

On the fourth issue, the Court observed that since the accused had both restored the property and paid its value, the province would not appear entitled to keep both, and the payment should have been returned to him. But the Court held that this question could not properly be decided in this proceeding, because the province was not a party and had no opportunity to be heard.

Doctrine

Misappropriation of public property is committed when a public official, having property placed under his official charge, applies it to his own use. The circumstance that the public service suffered prejudice or damage is a distinct element required for the higher penalty, and it must be fully proven; it cannot be presumed from the misappropriation itself. The detriment must be some irregularity distinctly prejudicial to the good order, policy, and regular course of the public administration, not the malversation alone. The fact that the property is not entered in the regular property account does not remove it from the official charge of the accused where the evidence shows it was in fact placed under his charge. Restitution of the property and payment of its value do not erase the offense, though they may affect the penalty. A claim for refund of such payment cannot be resolved in the criminal proceeding where the government entity holding it is not a party.

Disposition

The judgment of the trial court was reversed, and the accused was convicted instead under the third paragraph of article 392, sentenced to suspension for two years and one day and a fine of seven pesos and twenty-seven centavos, being five percent of the value of the property misappropriated, with costs of the trial court against him and no costs in the Supreme Court.

Remember This

Remember the single line: prejudice to the public service must be fully proven and cannot be presumed from the misappropriation itself. Examiners use this case to test the elements of malversation under the old Penal Code and the rule that the aggravating circumstance of damage to the public service is separate from the taking.