FIRST DIVISION

[G.R. No. 8860. December 4, 1913. ]

THE UNITED STATES, Plaintiff-Appellee, v. ERIBERTO M. PASCUAL, Defendant-

Appellant.

Herrero, Gabaldon & Masigan, for Appellant.

Solicitor-General Harvey, for Appellee.

SYLLABUS

1. MISAPPROPRIATION; ACQUITTAL. — A conviction of a person charged with

misappropriation of public funds under Act. No. 1740 cannot be sustained in the absence of
proof of a criminal intent to misappropriate. Such intent, however, may be inferred from the
circumstances.

2. ID.; HONEST MISTAKE NO BASIS FOR PROSECUTIONS. — Neither an honest mistake

in bookkeeping, nor an honest difference of opinion between the accused and the district auditor
as to the exact sum of money due the Government, can be made the basis of a prosecution of
embezzlement.

3. ID.; EFFECT OF IMMEDIATE RESTITUTION AS EVIDENCE. — The fact that a

municipal treasurer, on being charged by an examining auditor with a shortage in his official
accounts of a stated amount, and that, on being so charged, immediately pays over to the
examining auditor the sum alleged to be short, is of itself, and standing alone, no evidence of
misappropriation; nor is the fact that the treasurer, in order to make good the alleged shortage, is
obliged to go out and borrow the sum alleged to be short sufficient proof of misappropriation,
where it appears that the shortage claimed by the same auditor was more than three times the
amount of the actual shortage, if any.

DECISION

MORELAND, J.  :

This is an appeal from a judgment of the Court of First Instance of the Province of
Cagayan convicting the accused of the crime of embezzling public funds and sentencing
him to three months’ imprisonment, to suffer the disqualifications provided in section 3
of Act No. 1740, and to pay the costs.

The court also ordered the Government to return to the accused P112.21 standing to
his credit in the office of the municipal treasurer of Gattaran. From this portion of the
judgment no appeal is taken.
It appears that on the 18th day of March, 1912, the appellant in this case, at that time
22 years of age, was appointed municipal treasurer of Gattaran, Cagayan Province. This
was the first public office which the appellant had never held. He had no business
experience, no experience in the handling of public funds, in the keeping of books of
account, in making out reports of public officers, and was, accordingly, ignorant of the
duties and responsibilities of the office to which he was appointed.

On the 12th of July, 1912, that is to say, about four months after his appointment to
office, he was visited by the auditor of that district, Mr. Guy Drake, who proceeded to
make a partial examination of the accounts of the office and of the moneys on hand.
The examination having reached a certain point, the district auditor found what he
alleged to be a shortage of P159.85 in appellant’s accounts. He thereupon asked the
accused to produce funds sufficient to make it good. Alarmed and frightened the
accused paid over the sum claimed to be short; so that, on the following day, the 13th
of July, when the auditor sent his assistant, Lupo Guzman, to continue the examination,
the alleged shortage had been made good, the accounts were found correct, and the
books duly balanced.

The accused was immediately removed from office by his superiors, they acting upon
the belief that he had embezzled the funds or that he was incompetent to manage the
affairs of his office. Some time after his successor had been appointed there were found
about the office in some unaccustomed place certain receipts showing that the
appellant should not have been charged with a shortage of P159.85, but that if there
was a shortage at all it was much less. One of these receipts was for P98.42 and the
other P13.79, making a total of P122.21. These receipts had been issued to the
appellant while he was in office for remittances made of public funds. They reduced the
shortage, if any there was, to P47. 64. Instead, however, of making a reexamination of
the accounts of the accused, the district auditor began the criminal proceedings
resulting in this appeal.

Upon these facts it is evident and undisputed that the accused is entitled to recover
from the Government the sum of P112.21, he having made up the alleged shortage of
P159.85.

Prior to the examination by Mr. Guy Drake and just after the appointment of the
accused, there had been an official visit made to this office by the traveling deputy
provincial treasurer of Cagayan Province, named Pagalilauan, who also made an
examination of the accounts of the accused. This examination was made during the
latter part of the month of June. The accounts at that time were found correct, so far as
the records show, and in pursuance of such examination the accused turned over at
that time more than one thousand pesos in cash, the amount of the funds with which
he was chargeable. Two or there days after this visit the accused become convinced
that he had paid Pagalilauan P200 more than the amount named in the receipt which
had been issued to him upon such payment. In this belief he wrote a letter to
Pagalilauan stating that: "That is a difference of P200, that is, instead of your taking
the amount of P1,234.15 as Transfer to Provincial Treasurer, you took the amount of
P1,435.15, thus leaving a difference of P200." The letter terminates with the request:
"Wherefore I hope you will give me details or send me said amount as the safe is short
that much money, for the reason that you carried and Pagalilauan, as traveling deputy
provincial treasurer, several letters, in one of which the latter said: ". . . relative to that
suspicion or imputation for that amount which you are short, in the midst of my poverty
I can pay it up in order not to lose our positions, especially because we are young yet.
Should there be a shortage in the settlement to be made by you and compadre Canapi,
pay into the safe that amount of P200 as I will go down there on the 23d, and if my
verification turns out to be the same, then I will have no objection to pay you,
compadre, even if for no other reason than because of your suspicion of me, this being
the first time that such a small treasury as that has charged me with taking the amount
of P200, although I might steal as much as P50,000 . . . Compadre, pay up the amount
should there be a shortage, and I will pay you when I go down there, . . ." cralaw virtua1aw library

We are satisfied from the whole case that the appellant in all that he did was acting in
good faith and that the shortage, if any, was due to his youth and inexperience and
incompetency to handle the business of his office, and not to the embezzlement of the
funds of his office. That fact that the shortage was claimed to be at one time P159.85
and that the accused, without hesitation, made it up, when, as a matter of fact, he was
not owing anything like that amount, if anything at all, is an indication not only of his
incompetence as a public official but speaks strongly with respect to his good faith; and
the fact that Mr. Drake, after what he claimed was a thorough examination, declared
the shortage to be P159.85, when, as a matter of fact, it was only P47.64, if anything,
casts a doubt upon the correctness of his examination and leaves us pondering whether
or not the P47.64 was not also a mistake.

Moreover, touching the good faith of the accused, it appears undisputed that he claimed
that the traveling deputy provincial treasurer of Cagayan Province, Pagalilauan, had
taken P200 more than he gave receipts for and that accordingly he was entitled to have
his office reimbursed that amount. If that contention were true, or he honestly believed
it to be true, he had another ground upon which to base his contention of good faith.
Moreover, we have held that an immediate payment by the accused of the sum alleged
to be short, where that shortage is small and might easily be the result of a mistake or
of an honest difference of opinion between the examiner and the accused, would have
considerable weight in establishing the lack of criminal intent. This court in the case of
United States v. Feliciano (15 Phil. Rep., 144) had the following facts before it: jgc:[Link]

"A deputy auditor testified that on the 20th of May, 1908, he went to the municipality
of San Pedro Macati for the purpose of making an inspection of the office, cash, and
accounts of the municipal treasury of said town, of which Mariano Feliciano was the
treasurer; that there resulted from the examination a shortage of P53.05 in the cash of
the municipal treasury; that at the moment when the difference was discovered he
notified the treasurer of it, and the latter took the sum of P53.05 from his pocket and
paid it, but he did not remember, however, whether he had questioned the treasurer as
to why the examination was made, there were other persons present, to wit, the
municipal president and the municipal secretary." cralaw virtua1aw library

In deciding the case the court said: "If, according to the officer who made the
examination of the accounts, at the very moment when the shortage of P53 was
discovered and the treasurer was notified he at once presented the money, no prima
facie evidence of the crime of misappropriation can be established, nor any proof
whatever that there was such misappropriation." cralaw virtua1aw library

While in the case just cited the accused produced the money from his own pocket and
made good the alleged shortage, in the case at bar it is alleged that the accused went
out and borrowed the money which went to make up the shortage. It should be noted,
however, that it does not appear that, if the shortage found had been the correct
shortage, namely, P47.64., the accused would not have had that sum in his pocket or in
the office. There having been demanded, of him a sum. as a shortage, nearly four
times as large as that which he actually owed, no conclusions prejudicial to him can be
drawn from the fact of his borrowing the money to meet it.

In the case of United States v. Catolico (18 Phil. Rep., 504), after quoting that portion
of Act No. 1740 which provides that the absence of the funds "shall be deemed to be
prima facie evidence that such missing funds of property have been put to personal
uses," the court said: "Nevertheless, that presumption is a rebuttable one and
constitutes only a prime facie case against the person accused. If he present evidence
showing that, in fact, he has not put said funds or property to personal uses, then that
presumption is at an end and the prima facie case destroyed." cralaw virtua1aw library

We are satisfied that the record demonstrates the good faith of the appellant and the
entire lack of criminal intent to embezzle. The judgment of conviction is reversed and
the accused acquitted.

Arellano, C.J., and Torres, J., concur.

Carson, J., concurs in the result.

Trent, J., dissents.