FIRST DIVISION

[G.R. No. L-2828. December 14, 1906. ]

THE UNITED STATES, Plaintiff-Appellant, v. JUAN SOLIS, Defendant-Appellant.

DECISION

JOHNSON, J. :

This defendant was charged with the crime of embezzlement of public funds as follows:jgc:chanrobles.com.ph

"That the said Juan Solis on various dates between the 20th of September, 1904, and the 25th of February, 1905, in the municipality of Zamboanga,
Moro Province, Philippine Islands, being a public functionary employed in the office of the municipal treasurer of said municipality, appropriated to
his own use public funds which were under his charge, amounting to 1,075 pesetas."cralaw virtua1aw library

After a consideration of the proof adduced during the trial of the said cause, the lower court found the defendant guilty of the said crime, sentenced
him to be imprisoned for a period of three years six months and twenty-one days of presidio correccional, and to return to the municipality of
Zamboanga the sum of 1,075 pesetas and, in case of insolvency, to suffer subsidiary imprisonment, with the accessory penalties provided for in
article 58 of the Penal Code, and to pay the costs. From this decision the defendant appealed to this court.

From an examination of the record brought to this court we find the following facts:chanrob1es virtual 1aw library

First. That the defendant, Juan Solis, was duly appointed as an employee in the office of the municipal treasurer of the municipality of Zamboanga
on the 20th of September, 1904;

Second. That his duties as such employee were to brand cattle and to register such brands in the proper registry;

Third. That while acting as such employee he received P1 each from 215 different persons for the alleged purpose of branding and registering their
cattle;

Fourth. That these P215 so received were not delivered to the municipal treasurer of such municipality but were retained by the defendant and
appropriated to his own use;

Fifth. That in the performance of the duties imposed upon the defendant by the municipal treasurer under his appointment he had no authority to
receive said sums of money.

The lower court found the defendant guilty and sentenced him for violating paragraph 2 of article 390 of the Penal Code upon the theory that the
defendant was: First, a public official; and second, had received public funds buy reason of his duties as such public official.

Under the facts in this case the defendant was a public official (U. S. v. Sarmiento, 1 Phil. Rep., 484), but as such therefore he can not be convicted
under article 390 of the Penal Code and the decision of the lower court must therefore be reversed.

The evidence clearly shows, however, that the defendant while in employment of the municipal treasurer did receive P215 which belonged to the
said municipal treasurer as such. Paragraph 5 of article 535 of the Penal Code provides that the punishment provided for in article 534 shall be
imposed upon those who "to the prejudice of another shall appropriate or misapply any money, goods, or any kind of personal property which they
may have received as a deposit on commission for administration or in any other character producing the obligation to deliver or return the same,
or who shall deny having received it."cralaw virtua1aw library

The question arises, Can a person who is charged with the crime of malversacion de caudales publicos be convicted of the crime of estafa upon the
same complaint? The crime of malversacion, or embezzlement, as defined by the Penal Code can only be committed by a public official who has
charge by virtue of his official position of public funds. Even though he be a public official and is not responsible he can not be convicted of the
offense of malversacion. If however, while acting as a public official, he receives money without authority which belongs to another and appropriate
priates the same to his own use and fails and refuses to deliver the same to the person to whom it properly belongs, he has committed the same
acts which would make him liable under the Penal Code for the crime of malversacion had he authority as a public official to receive such funds. We
are of the opinion and so hold that he has violated by these acts the provisions of the Penal Code providing a punishment for the crime of estafa,
and is therefore guilty of the crime of estafa and is punishable under the provisions of the Penal Code. Estafa, when committed under the above
conditions, is a similar or cognate offense to that of malversacion, or embezzlement, under the Penal Code; therefore the person charged with the
crime of malversacion, or embezzlement, may be convicted of the crime of estafa under the same complaint.

This court has already held, in the case of U. S. v. Nery 1 (3 Off. Gaz., 82), that "when a person is charged in a complaint with a crime and the
evidence does not show that he is guilty of the crime charged, but does not show that he is guilty of some other lesser offense, the court may
sentence him for the lesser offense, provided the lesser offense is a similar or cognate offense and is included in the complaint." This conclusion is
also supported by the decisions of the supreme court of Spain. (See judgment of the 21st of February, 1889, 6th Viada, p. 292.)

Paragraph 2 of article 534 of the said Penal Code provides that those committing the acts in said paragraph above quoted shall be punished with
arresto mayor in its medium degree to presidio correccional in its minimum degree if the defraudation shall exceed 250 pesestas and not be more
than 6,250 pesetas. The amount received by the defendant herein was 215 pesos or 1,075 pesetas. There were neither aggravating nor mitigating
circumstances attending the commission of the crime, therefore the defendant must be punished in the medium degree in accordance with the
provisions of article 81, in its relation with article 82 of the said code. The medium degree of arresto mayor in its medium degree to presidio
correccional in its minimum degree is four months and one day to six months.

Article 399 of the Penal Code provides that the public official who, taking advantage of his official position, shall commit any of the crimes specified
in chapter 4, section 2, title 13 of the Penal Code, shall incur, in addition to the penalties prescribed therein, that of temporary special
disqualification in its maximum degree to perpetual special disqualification.

It is the judgment of this court that the said defendant shall be imprisoned for a period of five months and arresto mayor and shall incur eleven
years and one day of temporary special disqualification.

After the expiration of ten days let judgment be entered in accordance herewith and ten days thereafter the case be remanded to the lower court
for execution. So ordered.
[ G.R. No. L-6063, April 26, 1954 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. LEON AQUINO, DEFENDANT AND APPELLANT.

DECISION
REYES, J.:

The accused Leon Aquino was charged in the Court of First Instance of Pangasinan with malversation of public funds for having on or about July 16,
1951, misappropriated public funds amounting to P20,944.27 entrusted to his care in his capacity as municipal treasurer and postmaster of Mabini,
Pangasinan, and "ex-officio in-charge of the properties and funds of the National Rice and Corn Corporation (NARIC)." Pleading guilty to the charge,
the accused was, in accordance with article 217, paragraph 4, of the Revised Penal Code and the Indeterminate Sentence Law, sentenced as follows:
"(a) In accordance with the Indeterminate Sentence Law and article 217, paragraph 4 of the Revised Penal Code, and taking into account his plea of
guilty, to suffer a penalty of Eight years and one day of prision mayor as a minimum, and twelve years and one day of 'reclusion temporal' as a
maximum;

"(b) To suffer the penalty of perpetual special disqualification;

"(c) To pay a fine of P10,472.13, without subsidiary imprisonment because of the principal penalty imposed;

"(d) To indemnify the National Rice and Corn Corporation in the amount of P12,656.83;

"(e) To indemnify the Government of the Republic of the Philippines in the amount of P2,910.44;

"(f) To indemnify the Bureau of Posts or the Government of the Republic of the Philippines in the further amount of P5,377;

"(g) To pay the costs of this case."

From this sentence the accused has appealed, and his attorney in this instance contends that the lower court should have applied paragraph 3
instead of paragraph 4 of the article mentioned. In support of this contention attention is invited to the fact disclosed in the information that
P12,656.83 of the funds malversed belonged to the NARIC, and, on the theory that NARIC funds are not public funds because the NARIC is a
corporation separate and distinct from the Government, counsel argues that with respect to that sum the accused cannot be held guilty of
malversation of public funds. With that sum excluded, the amount of public funds malversed, so counsel contends, would only be P8,287.44 and
would come under paragraph 3 of the article in question, which provides for a penalty higher than that prescribed in paragraph 4.

The contention is without merit Even supposing that funds belonging to the NARIC are not public funds, they become impressed with that character
when they are entrusted to a public officer for his official custody (People vs. De la Serna, 40 Off. Gaz. [Supp. 12] 159). Thus this Court has held that
Red Cross, Anti-Tuberculosis, and Boy Scouts funds delivered to an assistant cashier of a provincial treasurer for his custody acquire the attributes of
public funds (People vs. Velasquez, 72 Phil., 98).

We find the sentence appealed from in accordance with law. We, therefore, confirm it with costs.against the appellant.

Paras, C. J., Pablo, Bengzon, Jugo, Bautista Angelo, Labrador, and Concepcion, JJ., concur.
EN BANC
[G.R. No. L-9550. February 28, 1958.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. VICENTE ANGCO, Defendant-Appellant.

DECISION

PADILLA, J.:

Vicente Angco was charged in the Court of First Instance of Manila with the crime of malversation of public funds in an information which reads, as
follows:chanrob1es virtual 1aw library

That in, about and during the years 1950 and 1951, in the City of Manila, Philippines, the said accused, being then Traveling Sales Agent of the
Philippine Charity Sweepstakes Office, in said City, with headquarters at Tuguegarao, Cagayan, charged with selling sweepstakes tickets entrusted to
him for sale in his district with the obligation of turning over the proceeds of the sale of said tickets to the Treasurer of the Philippine Charity
Sweepstakes Office in Manila, not later than one week before the corresponding draw and for which public funds he was accountable, having
received and sold a total of 171 booklets of sweepstakes tickets for the February 25, 1951 draw, valued at P5,377.95, accounted for and turned over
only P1,417, thereby leaving a balance of P3,960.95 unaccounted for, which the said accused, notwithstanding repeated demands made upon him
to account for the same, did then and there wilfully, unlawfully, feloniously and fraudulently, with grave abuse of confidence, misappropriate,
embezzle, misapply and convert the said amount of P3,960.95 to his own personal use and benefit, to the damage and prejudice of the aforesaid
Philippine Charity Sweepstakes Office in the said amount of P3,960.95, Philippine currency. (Crim. case No. 24988.)

Upon arraignment, the defendant, assisted by counsel, entered a plea of not guilty. After trial, the Court found him guilty as charged and sentenced
to suffer —

. . . the indeterminate penalty of one (1) year, eight (8) months and one (1) day of prision correccional, as the minimum, to four (4) years, two (2)
months and one (1) day of prision correccional, as the maximum; to indemnify the offended party in the amount of P2,445.25, with subsidiary
imprisonment in case of insolvency at the rate of P2.50 a day, provided said subsidiary imprisonment does not exceed one-third of the principal
penalty imposed and shall in no case be more than one year, and to pay the costs.

The defendant appeals and assigns two errors which he contends the trial court committed, to wit:chanrob1es virtual 1aw library

1. The Court erred in persisting to take cognizance of the case inspite of the defendant’s contention that he had no jurisdiction over the case.

2. The Court erred in not receiving evidence for the accused, and in not providing him with counsel de oficio.

The trial court found that —

. . . The accused was a traveling sales agent of the Philippine Charity Sweepstakes Office from April 26, 1950 to July 25, 1951, as evidenced by Exhibit
A. As such, he was bonded and was authorized to sell sweepstakes tickets, with the obligation of turning over the proceeds of the sale to the
Treasurer of the Philippine Charity Sweepstakes Office, Manila, every fifteen days until the whole value of the same is fully paid, full payment to be
made in all cases not later than one week before the draw. On December 19, 1950 and January 22, 1951, he received a total of 171 booklets of
sweepstakes tickets for the February 25, 1951 draw, valued at P5,377.95, as evidenced by consignment invoices Exhibits D, D-1 and D-2. Not having
fully paid the amount just mentioned when it became due, and as he could not be located, his accounts were examined or audited, and as of June
18, 1951, it appears that his total account ability was P5,377.95, and his total remittances only P1,417, thereby leaving a balance due from him in
the amount of P3,690.95, as shown by Exhibits C and C-1. Thereafter, other payments totalling P1,515.70 were made, reducing the balance to
P2,445.25, which has never been paid by the accused, as evidenced by the statement of account Exhibit B. Up to the present time, he has failed to
account for the said balance of P2,445.25, which he has misappropriated and converted to his personal use and benefit, to the damage and
prejudice of the Philippine Charity Sweepstakes Office.

The appellant presses the question of jurisdiction raised in a motion to quash which was denied by the trial court. He insists that as the malversation
was committed while he was a travelling sales agent in Cagayan, as charged in the information, and that as it is not charged that the fund or part
thereof was malversed in Manila, the Court of First Instance of Manila has no jurisdiction over the case. True it is alleged in the information that he
had his "headquarters at Tuguegarao, Cagayan," but it is also alleged that he was a "Travelling Sales Agent of the Philippine Charity Sweepstakes
Office, in said City," (Manila) . . . "charged with selling sweepstakes tickets entrusted to him for sale in his district, with the obligation of turning over
the proceeds of the sale of said tickets to the Treasurer of the Philippine Charity Sweepstakes Office in Manila,." . ., and that he "willfully, unlawfully,
feloniously and fraudulently, with grave abuse of confidence," misappropriated, embezzled, misapplied and converted the amount of P3,960.95, the
unaccounted and unpaid balance of the proceeds of the sale of the tickets to his own personal use and benefit, to the damage and prejudice of the
Philippine Charity Sweepstakes Office. These allegations are sufficient to confer jurisdiction upon the Court of First Instance of Manila to the
exclusion of the concurrent jurisdiction of the Court of First Instance of Cagayan. The findings of the trial court to the effect that the appellant "was
bonded and was authorized to sell sweepstakes tickets, with the obligation of turning over the proceeds of the sale to the Treasurer of the
Philippine Charity Sweepstakes Office, Manila;" and that the appellant failed to account for and pay part of the proceeds of the sale of tickets made
by him, bear out the charge preferred against him in the information.

The appellant claims that the trial court did not provide him with a counsel de oficio and did not hear the evidence in his defense. The record shows
that at the arraignment and trial he was aided and represented by counsel of his choice; that after the prosecution had rested its case counsel
moved that the case be dismissed; that on 20 April 1954, the Court denied the motion and set the resumption of the trial of the case on the first
available date to enable the defendant to present his evidence; that the Court set the resumption of the trial on 17 May 1954; that on 3 May 1954
counsel moved for the continuance of the trial upon the ground that "on said date attorneys will be engaged in the trial of Thomas L. Ghent, Et Al., v.
Gaudencio S. Mañalac, Et Al., Civil Case No. 465, Court of First Instance of Lanao, which case has been previously set;" that on 17 May 1954, the date
set for the resumption of the trial, counsel filed a motion praying for postponement on the ground that the appellant was "sick of influenza and
cannot travel from Vigan, where he resides, to Manila, to attend the trial of the . . . case," which was granted; that on 3 June 1954 counsel moved
for reconsideration of the order denying the motion to dismiss; that on 17 June 1954 the Court directed that the motion to dismiss on the ground of
lack of jurisdiction be heard again on 26 June 1954, and that the prosecuting attorney be furnished with a copy of the order and instructed to appear
before it on the date set for the hearing of the motion for reconsideration; that on 15 July 1954 the Court, then presided over by Judge E. Soriano,
directed the prosecuting attorney to answer the appellant’s motion for reconsideration dated 3 June 1954; that on 23 July 1954 the prosecuting
attorney objected to the motion for reconsideration; that on 28 July 1954 the Court denied the motion for reconsideration and set the trial of the
case for 18 August 1954; that on the last mentioned date, counsel appeared and manifested that the order of 28 July 1954 setting the case for trial
on 18 August 1954 was not received by him because it was sent to a wrong address and that he was not ready to present evidence for the appellant;
that the Court set the resumption of the trial of the case "for the last time to October 15, 1954, with the understanding that if the accused does not
present his evidence on said date, he will be deemed to have waived his right to present any evidence and this case will be considered submitted for
decision upon the evidence presented by the prosecution;" that on 14 October 1954 counsel again filed a motion praying that the trial of the case be
postponed to another date most convenient to the Court, on the ground that the appellant was suffering from pulmonary tuberculosis and would
not be able to attend the trial of the case, and that counsel would also be unable to attend the trial of the case as he had to attend the funeral of his
grandmother in Asingan, Pangasinan; that on 15 October 1954, the date set for the resumption of the trial, the Court denied the motion for
postponement and ordered the appellant arrested, the bailbond forfeited, and the bondsmen to produce the body of the appellant within thirty
days from notice; that on 27 October 1954 counsel filed a motion praying for reconsideration of the last mentioned order and on 30 October 1954 a
supplementary motion praying "that the case be set definitely for hearing next January, 1955; and pledge (pledged) that no further petition for
postponement will be filed under any ground, it being his intention to plead guilty;" that on 3 November 1954 the Court granted the motion for
reconsideration, set aside its order of arrest and confiscation of the bond of the accused and set the case for trial on 11 January 1955; that on the
last date set for the trial of the case, 11 January 1955, the Court issued an order, as follows:chanrob1es virtual 1aw library

Upon verbal motion of the accused, temporarily assisted by attorney Jose C. Zulueta, the trial of this case is postponed — for the last time — to
March 3, 1955 at 8:30 o’clock a.m., with the warning that if the accused does not appear with counsel for said trial he shall be considered as having
waived his right to present his evidence, and this case will be deemed submitted for decision on the evidence presented by the prosecution;

that on 3 March 1955, the appellant again appeared without counsel, whereupon the Court ordered that the case was "deemed submitted for
decision upon the evidence adduced by the Prosecution." On 9 July 1955, the Court rendered judgment finding the appellant guilty as charged and
sentenced him to suffer the penalty set out at the beginning of this opinion.

As the appellant was represented by counsel of his choice at the arraignment, trial and in the incidental motions to dismiss and to postpone the
resumption of the trial of the case, the trial court was not in duty bound to appoint a counsel de oficio to assist him in his defense. His failure to
appear with counsel of his choice at the hearing of the case, notwithstanding repeated postponements and warnings that failure to so appear would
be deemed a waiver on the part of the appellant to present his evidence and the case would be deemed submitted for decision upon the evidence
presented by the prosecution, was sufficient legal justification for the trial court to proceed and render judgment upon the evidence before it.
Taking into consideration all the steps taken by the trial court to safeguard the rights of the appellant, the latter cannot pretend that he was
deprived of his right to be assisted by counsel and to present evidence in his behalf. Moreover, the repeated failure of the appellant to appear with
counsel at the resumptions of the trial of the case may be taken as a deliberate attempt on his part to delay the proceedings.

The crime committed is malversation defined and punished in article 217, No. 2, of the Revised Penal Code, with prision correccional in its maximum
period to prision mayor in its minimum period. As there are no modifying circumstances, the medium period should be imposed upon the appellant,
which is from 5 years, 5 months and 11 days of prision correccional to 6 years, 8 months and 20 days of prision mayor, and the additional penalty of
perpetual special disqualification and a fine ranging from one-half to the total sum of the funds embezzled. Applying the Indeterminate Sentence
Law, he should be sentenced to suffer not less than 6 months and 1 day and not more than 4 years and 2 months of prision correccional, as the
minimum, and not less than 5 years, 5 months and 11 days of prision correccional and not more than 6 years, 8 months and 20 days of prision
mayor, as the maximum. The minimum penalty imposed is within the range of the minimum penalty that may be imposed, but the maximum
penalty is below the range as above pointed out.

With the additional penalty of a fine of one-half of the sum embezzled and of perpetual special disqualification and a modification of the maximum
penalty which must be 5 years, 5 months and 11 days of prision correccional, the accessories of the law, the judgment appealed from is affirmed,
with costs against the Appellant.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.
EN BANC
G.R. No. L-4852 February 1, 1909
THE UNITED STATES,Plaintiff-Appellee, vs. VICENTE CALIMAG,Defendant-Appellant.

WILLARD, J. :chanrobles virtual law library

On and prior to December 2, 1907, the accused was municipal treasurer of the town of Solana, Province of Cagayan, and also deputy provincial
treasurer, receiving as salary for the former position P25 per month and for the latter P10 per month. On the said date, to wit, December 2, 1907,
the district auditor for that district examined the books and cash for the accused, and informed him that there was a difference between the
amount for which accused was responsible and the amount counted by said district auditor of P49.04. The auditor asked the defendant how this
occurred, and he said that he was for the reason that he had to advance his salary of P10 a month from July to November, P50. The auditor then told
him to get the money, and he went out and within ten minutes returned with P50, which he put upon the desk in front of the auditor. This was done
before the examination was concluded. The auditor counted the P50 as a part of the money on hand and certified that the accounts of the accused
were correct.chanroblesvirtualawlibrary chanrobles virtual law library

The defendant was convicted in the court below of a violation of Act No. 1740 and sentence to two months' imprisonment. From that judgment he
has appealed.chanroblesvirtualawlibrary chanrobles virtual law library

It was proven at the trial that the defendant had no authority to pay himself his salary of P10 a month as deputy to the provincial treasurer, and it
must be considered that he had made personal use of the funds of the Government.chanroblesvirtualawlibrary chanrobles virtual law library

If this case had arisen prior to the enactment of Act No. 1740, it would have fallen under the provisions of article 392 of the Penal Code, and the
punishment inflicted would have been a fine of from 5 to 25 per cent of the amount appropriated. (U.S. vs. Coates, 4 Phil. Rep., 581; U.S. vs.
Valencia, 8 Phil. Rep., 729.) The offense, however, was committed after the enactment of Act No. 1740. The first and fourth sections of that Act are
as follows:

SECTION 1. Any bounded officer or employee of the Insular Government, or of any provincial or municipal government, or of the city of
Manila, and any other person who having charge, by reason of his office or employment, of Insular, provincial, or municipal funds or property, or
funds or property of the city of Manila, or of trust or other funds by law required to be kept or deposited by or with such officer, employee, or other
person, or by or with any public office, treasury, or other depositary, fails or refuses to account for the same, or makes personal use of such funds or
property, or of any part thereof, abstracts or misappropriates the same, or any part thereof, or is guilty of any malversation with reference to such
funds or property, or through his abandonment, fault, or negligence, permits any other person to abstract, misappropriate or make personal use of
the same, shall, upon conviction, be punished by imprisonment for not less than two months nor more than ten years and, in the discretion of the
court, by a fine of not more than the amount of such funds and the value of such property.chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 4. Articles three hundred and ninety, three hundred and ninety-one, and three hundred and ninety-two of the Penal Code of the Philippine
Islands, in so far as the same may be in conflict with this Act, are hereby to that extent only repealed.

If the only applicable to the case is Act No. 1740, the judgment must be affirmed, for the minimum penalty imposed upon a person who makes
personal use of the funds of the Government is two months' imprisonment. There is nothing in the law which indicates that this penalty may be
changed into a fine in case the defendant restores the money to the treasury.chanroblesvirtualawlibrary chanrobles virtual law library

It has been suggested, however, that this is not the only law now applicable to the case, but the article 392 of the Penal Code is still force. This
suggestion is due to the peculiar wording of section 4 of Act No. 1740 above quoted. It seems to have been the opinion of the legislative body that
articles 390, 391, and 392 of the Penal Code were not wholly repealed and that some part of them still remains. It may be difficult to point out just
what part is left of these three articles, but this court has already decided that article 392 has been entirely repealed. In the case of The United
States vs. Togonon, 1 No. 4676, decided January 19, 1909, the court, speaking of Act No. 1740, said:

The purpose of the Act was the formal repeal of article 392 as to the distinctions and subdistinctions stated in said article and maintains the leading
idea of the crime, distinguishing it from that of estafa committed by a private person.

This result necessarily seems to follow from the fact that article 392 apparently supposes that the money misappropriated is returned and almost all
of the article is devoted to a statement of the penalties which shall be imposed in such a case. The only part of the article which does not suppose a
return of the money is the second paragraph, which says:

If restitution be not made, the penalties prescribed in article 390 shall be imposed on him.

It is difficult to believe that the commission, with their attention directed especially to article 392 and to the fact that its main object was to provide
for a fine in case the money was returned, would not have expressly excepted the article from the repealing clause if it had been its intention to
preserve that feature of the law.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant claims that what was stated by the defendant to the auditor at the time of the examination amounted to a confession within the
meaning of section 4 of Act No. 619, and no proof having been offered that the confession was freely and voluntarily made, it was inadmissible. Said
section 4 is as follows:

No confession of any person charged with crime shall be received as evidence against him by any court of justice unless it be first shown to the
satisfaction of the court that it was freely and voluntarily made and not the result of violence, intimidation, threat, menace, or of promises or offers
of reward or leniency.

It will be seen that this section relates only to a person charged with crime and can not, therefore, be applied to the present case because no
charged had at the time of the conversation been made against the defendant.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment of the court below is affirmed, with the costs of this instance against the appellant.chanroblesvirtualawlibrary chanrobles virtual law
library

Arellano, C.J., Torres, Mapa, Johnson, Carson, and Tracey, JJ., concur.
FIRST DIVISION
[G.R. No. 10698. October 7, 1915. ]
THE UNITED STATES, Plaintiff-Appellee, v. P. D. GARCES, Defendant-Appellant.

DECISION

TRENT, J. :

The defendant in this case was municipal treasurer of the town of Misamis, Province of Misamis. An opium pipe and other prescribed articles were
found by the authorities and delivered to him for safe-keeping. The defendant placed these articles in a drawer of an aparador in his office to be
held until called for by the courts. On the 20th of August, 1914, this same opium pipe was found in the possession of Primo Valconcha, a half brother
of Lucas Medina, who was a trusted employee and clerk in the office of the defendant. The defendant was thereupon charged with a violation of Act
No. 1740 and found guilty.

Act No. 1740 is designed to protect the Government from loss of its funds and property through the acts of its agents which are prompted either by
corrupt motives or neglect or disregard of duty. Section 1 enumerates the acts or omissions which are to be considered punishable by the law. The
section covers a wide range of official misconduct and includes the personal use of the funds or property; the abstraction, misappropriation, or
malversation thereof by the agent himself; and lastly, the abstraction, misappropriation, or personal use thereof by any other person through the
"abandonment, fault, or negligence" of the officer or employee who is legally responsible and accountable for such funds or property. Assuming,
without deciding, that the pipe in question falls within that class of property mentioned in section 1 of Act No. 1740, can the conviction be sustained
upon the facts as disclosed by the record?

The information charges the facts stated in the opening paragraph of this decision and alleges an infraction of Act No. 1740 by reason of the
"abandonment and negligence" of the defendant. Clearly, if there was a crime, it did not arise from the personal use, abstraction, misappropriation,
or malversation of the defendant himself. Conviction must rest upon the personal use, abstraction, or misappropriation by another person through
the defendant’s abandonment of the property or because of his fault or negligence. That the defendant did not abandon the property is clear. He
put it in his own office and this office was kept locked, only himself and his trusted employee Medina having keys there- to. If, then, the defendant is
guilty of a crime within the purview of Act No. 1740, it must be by reason of his fault or negligence. When we attempt to measure the negligence
which pervades a particular act or omission, we must first determine upon a standard of care commensurate with the occasion, and then endeavor
to ascertain how far short of this standard falls the act or omission in question. Did not defendant take the steps to guard the opium pipe which its
value warranted? The clerk Medina was a trusted employee. It is not shown that he was not worthy of confidence to the extent the defendant relied
upon him. He was given a key to the office; but this does not contribute to the defendant’s misconduct, if any, in caring for the Opium pipe.
Doubtless, the defendant was under the necessity of allowing one of his employees to have a key to the office so that it might be opened promptly
for the day’s work when the defendant was not there. The only fact which tends to show the negligence of the defendant in caring for the pipe,
therefore, is that he put it in a drawer of an aparador standing in his office. By putting it there, he made it possible for all those who had access to
the interior of his office to abstract the pipe. Just how feasible this was is not shown. It is not denied, however, that the aparador where the pipe
was located, as well as the employees of the office, were constantly in view during office hours and that an attempt to abstract the pipe during that
time would be attended with considerable risk of detection, while Medina, by means of his key to the office, could abstract the pipe outside of office
hours with comparatively no risk of detection, as he was a trusted employee. The pipe and other prescribed articles were, therefore, placed where it
was possible but hardly probable that they would be stolen. It is quite true that, in the light of subsequent developments, the place selected by the
defendant as a repository for these articles was not adequately protected against thieves. There was at least an error of judgment on his part in
assuming that the aparador was a reasonably safe place in which to keep the articles in question. Ker’s Wharton on Criminal Law (11th ed.) , section
163, note 4, reads in part as follows: "To impose criminal responsibility, Sir J. F. Stephen (3 History Crim. Law, 11) maintains that there ’must be
more, but no one can say how much more, carelessness than is required in order to create a civil liability. For instance, many railway accidents are
caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient
to make the railway servant guilty of manslaughter if death is caused.’ But the better view is that the only difference between criminal and civil
procedure in such case is that in the first there can be no conviction if there be reasonable doubt of guilt, while in the second the verdict goes with
preponderance of proof."cralaw virtua1aw library

Applying either test to the conduct of the defendant in the case at bar, we cannot say that we reach the conclusion that he was criminally negligent
in caring for the opium pipe. Neither its utility nor its value was great enough to make its acquisition to be desired by any great number of persons.
It was, in fact, under lock and key during those hours of the day and night when no one was around to look out for it. During office hours its theft
was attended with such a risk of detection as to dissuade most persons from the attempt. There being no suspicion in our minds that the defendant
intentionally left the pipe where it could be easily abstracted, we conclude that he is not guilty of the crime charged.

The judgment appealed from is reversed and the defendant is acquitted, with costs de officio. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Araullo, JJ., concur.

EN BANC
G.R. No. L-6781 November 6, 1911
THE UNITED STATES, Plaintiff-Appellee, vs. F. WICKERSHAM, Defendant-Appellant.

CARSON, J.:

The information in this case charges the defendant and appellant with the crime of hurto (theft) committed as follows:

That one day in the month of July of the present year, 1910, in this municipality of Iloilo, Province of Iloilo, Philippine Islands, the said defendant, F.
Wickersham, being chief clerk in the office of the Quartermaster of the United States Army in Iloilo, did willfully, maliciously and criminally, and
without violence, intimidation or force toward persons or things, abstract, take possession of, and steal, for the sake of personal gain and without
the consent of the owner and by abusing the confidence of his chief, various checks belonging to the United States, credited to Captain L. F. Garrard
of the United States Army in Iloilo, to wit:

Check No. 141528 .................................... P344.00

Check No. 139856 .................................... 525.48
Check No. 141471 .................................... 212.00
Check No. 137651 .................................... 272.00
Check No. 137691 .................................... 10.00
Check No. 141489 .................................... 1,500.00

2,500.00
and, in coin, the sum of P178.08, making a total of P3,041.56 Philippine currency; the checks above mentioned having been drawn on the Treasury
of the Philippine Islands, depositary of the Treasury of the United States. Acts in violation of law.

There is no controversy as to the facts, the defendant and appellant, through his counsel, having admitted the truth of the testimony of the
witnesses for the prosecution. The defendant was the chief clerk in the quartermaster's office in Iloilo, to whom was intrusted the combination and
the key to the quartermaster's safe. He did not, however, have charge of the cash book, which was kept by another clerk in the office; nor did he
have authority to open the safe or to withdraw funds therefrom except at the direction of his superior office, the quartermaster, who was in charge
of the safe and its contents, and under whose immediate control it was. The only duty of the defendant in regard to the safe and its contents was to
keep safely the combination and the key, and to open and close it at the direction of his superior officer, the quartermaster in charge of the office;
he had no control whatever over the contents of the safe and was not charged with the withdrawal or distribution of the funds, checks and other
property which were kept in it.chanroblesvirtualawlibrary chanrobles virtual law library

During the absence of his superior officer and while in a state of intoxication, defendant opened the safe and abstracted therefrom the cash and
checks described in the information. Before judgment of conviction in the court below, the cash and all of the checks were recovered, except three
which were indorsed by the parties to whom the defendant sold them, and paid by the Treasurer of the Philippine Islands, upon whom they were
drawn. The face value of these checks was refunded to the quartermaster, so that at the time when judgment was entered in the court below all of
the stolen property or its value had been recovered.chanroblesvirtualawlibrary chanrobles virtual law library

Counsel for appellant, without denying that the record discloses highly reprehensible conduct in the abstraction of the checks and cash from the
safe, and the negotiation of some of the checks, contends nevertheless that the judgment of the lower court should be reversed on various
grounds.chanroblesvirtualawlibrary chanrobles virtual law library

Counsel insists that the trial court erred in refusing to declare the information fatally defective because, as counsel contends, it does not set out the
value of the stolen checks. Counsel apparently does not deem the use of the sign "P" in the information a sufficient designation or equivalent of the
term "pesos Philippine currency," and he insists that the tabulated form in which the checks are described in the information does not affirmatively
disclose that the checks were worth the amount for which t is alleged they were drawn. Counsel's contention can not be sustained. The sign or
character P is general accepted in these Islands as the equivalent of the words peso or pesos Philippine currency; by Executive Order No. 44 dated
Manila, October 29, 1904, this character was made the official "designation for the new Philippine pesos," and since that date its use for the purpose
has become uniform and universal. We think that the allegation that the defendant stole the checks described in the tabulated statement set out in
the information, and the sum of P178.08 in cash "which amount in all to the sum of P3,041.56 pesos Filipinos," is a sufficiently definite allegation of
the value of the stolen property; and that it is so clear and explicit as "to leave no room for doubt in the mind of any person of even rudimentary
intelligence" that it meant to charge the defendant with the theft of the sum of money therein mentioned and of the checks therein described, the
total value of which was the sum therein indicated, the value of each separate check being the amount for which it was drawn as set out in the
tabulated statement.

The bill of rights for the Philippines, giving the accused the right to demand the nature and cause of the accusation against him does not fasten
forever upon those Islands the inability of the seventeenth century common law to understand or accept a pleading that did not exclude every
misinterpretation capable of occuring to intelligence fired with a desire to pervert. (Paraiso vs. United States, 207 U. S., 368; 11 Phil. Rep., 799.)

Counsel also contends that whatever be the nature of the offense committed by the defendant in abstracting money and checks from the safe of
which he carried the key, it is not theft ( hurto). His argument is that one can not steal from one's self, and that one who misappropriates funds or
other personal property which are under his control may perhaps be convicted of some offense of the nature of estafa (embezzlement), or
misappropriation or defalcation of public funds if the funds abstracted are public funds; but that theft necessarily implies the taking of property
from the possession of another. We do not question the soundness of the legal proposition thus stated, but as we understand the admitted facts in
this case, the defendant did not have the funds and property contained in the safe under his control. He had no authority of his own volition to
withdraw funds from the safe upon any pretext whatever. The funds were placed in the safe and could only be taken from it by his superior officer
or by his order. Defendant's possession of the key and the combination of the safe gave him no control over the contents. His relation to the
contents of the safe was merely that of a guard whose duty it was to see that no one but his superior officer had access to the funds, and he had no
more right of disposition of the contents of the safe than has a watchman of a warehouse to whom the key is intrusted the right to dispose of its
contents. In the case of U. S. vs. Webster (6 Phil. Rep., 393), the defendant was a forage master in charge of Government forage, subject to the
orders of the quartermaster, who was directly responsible therefor to the owner, the United States Government, and without whose order no
forage could be issued. The forage master had no authority to issue any orders or give out any forage except upon the requisition of the
quartermaster, nor was he authorized to receive money on account of sales of this forage. Without such authority and without an order from the
quartermaster he disposed of hay and oats to the value of some P2,015, for which he failed to account to the Government. In tat case we said:
The qualified charge of this forage, subject to the orders of a superior, who alone was responsible o the Government for it, without the right on the
part of the accused to sell it or to part with the physical custody of it unless on written orders, was not such a possession as to render the
abstraction of the property by him malversation instead of theft.

Counsel's remaining contentions may, for convenience, be summoned up in the proposition that since, as counsel suggests, checks have no value in
themselves, or at most a mere nominal value, that is, the value of the piece of paper on which they are written, they are not properly the subject of
larceny; and that whatever offense is committed by one who abstracts a check, the property of another, and thereafter negotiates it, it is not theft.
It is contended that the offense of abstracting and negotiating a check may be estafa (embezzlement) or one of its kindred offenses, but that is not
theft. This was the theory of the common law under which commercial paper was not the subject of larceny, for the reason, as it was said, that it has
no intrinsic value, and is merely an evidence or token of the existence of money or property elsewhere. The common law rule, however, has been
abrogated in most American jurisdiction by statutes making commercial papers the subject of larceny (18 Am. & Eng. Ency. of Law, p. 515) and it is
not in force in these Islands. The supreme court of Spain has repeatedly held that checks ( cheques) and other commercial papers ( valores) are
subjects of larceny. Decisions of March 16, 1899, and of March 7, 1900.chanroblesvirtualawlibrary chanrobles virtual law library

In those States where commercial paper has by statute been made the subject of larceny, the statute generally provides that the face value shall be
taken, prima facie, as its value for the purpose of the statute, though this last provision is not universal. In Vermont, commercial paper was by
statute made the subject of larceny without any regulation as to its value. In the recently decided case of State vs. McClellan (23 L. R. A. ( N. S.)
1063), an unendorsed check was held to be the subject of larceny, and for the purpose of determining the degree of the crime its value was held to
be its face value, or the amount for which it was drawn and which could have been realized upon it by its legal owner.chanroblesvirtualawlibrary
chanrobles virtual law library

A check in the hands of its lawful owner is something more than a mere evidence or token of the existence of money elsewhere. It is an instrument
which, from its peculiar qualities as a commercial document, places certain funds under the special control of its lawful holder so long as he retains it
in his possession. It confers upon its holder exceptional and peculiar powers as to the disposition of the funds against which it is drawn, and enables
him to realize those funds without regard to the mutual relations existing between himself and the drawer of the check or the depository wherein
the funds are actually placed. Furthermore, as a result of the peculiar qualities of a check as a commercial instrument, the lawful holder, so long as
he retains possession, has not only the right to the funds against which it is drawn, but a claim against the drawer and previous endorsers in the
event of a failure of these funds in whole or in part; provided, however, there is due diligence on his part in asserting his claim, and in case of
endorsers in protesting the check in the event of nonpayment. The loss of possession of a check deprives the owner of the immediate control of the
funds against which it is drawn, and may involve the loss of the fund itself, unless he adopts prompt and efficient measures to protect himself;
indeed if the check be made payable to bearer its abstraction from his possession exposes him to the risk of loss of the fund without redress except
only as against the guilty person. Manifestly these peculiar qualities which the law confers upon commercial instruments of this kind, and the
exceptional incidents attaching to such instruments in the hands of a lawful owner, give them an actual substantial value in his hands which may and
should be measured by the amount of cash which may be realized upon them, that it to say, in the case of a good and valid check, by its value; and
evidence that a check is a good and valid check is prima facie proof that it is worth its face value in the hands of the lawful owner. We are of opinion
that a check is in a very real sense personal property, and that when abstracted with the intention of converting it to use of the person taking it, the
abstraction of the check constitutes a taking of personal property from the possession of another, defined and penalized as the crime of hurto
(theft) in the Penal Code.chanroblesvirtualawlibrary chanrobles virtual law library

As to the unendorsed checks made payable to order, the contention that they are of no value seems also to be based on the theory tat the value of
stolen property is to be determined by its condition when taken; that a check payable to order is an incomplete instrument as long as it remains
unendorsed; that no one can draw money on a stolen check in the condition in which it is found at the time of the theft as long as it remains
unendorsed by the payee; and that consequently stolen checks payable to order have only a nominal value at the time of the theft. We are of
opinion, however, that it is not necessary that the subject matter of a larceny should be of value to a third person if valuable to the owner, and the
value of good and valid checks and similar commercial paper to the owner is, as we have seen, the amount which he is entitled to receive therefor,
ordinarily their face value, that is to say the amount for which they are drawn. In the case at bar the defendant took personal property of this
character from the constructive possession of its owner with the intention of converting it to his own use. The fact, admitting that it was a fact, that
he could not make use of this property in the condition in which it was at the moment when he deprived the owner of it without indorsing it, does
not and ought not to determine its value when he is called to account for his criminal act. The checks in the hands of their lawful owners were
completed instruments. They gave their lawful owner control of the amount of currency corresponding to their face value, with the power of
transferring that control by an appropriate endorsement was not absolutely essential to the value of these checks in the hands of an honest holder.
A formal assignment in an appropriate public instrument and perhaps a parol agreement with manual delivery would have been sufficient for that
purpose: as between the assignor and assignee, such an assignment would be complete and effectual, and the holder of a check thus assigned could
enforce his right therein by appropriate legal proceedings. So far, therefore, as the lawful holder of a check payable to order is concerned, its value is
the same whether he has actually endorsed it, or has yet to do so before demanding payment.chanroblesvirtualawlibrary chanrobles virtual law
library

We find no prejudicial error in the proceedings in the court below; the judgment of conviction and the sentence based thereon should therefore be
affirmed, with the costs of this instance against the appellant. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Torres, Mapa, Johnson, Moreland and Trent, JJ., concur.

THIRD DIVISION
[G.R. No. 175074 : August 31, 2011]
JESUS TORRES, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

PERALTA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the Resolution[1] dated September 6, 2006 and Resolution dated October
17, 2006[2] of the Court of Appeals (CA) in CA-G.R. CR No. 29694.

The factual and procedural antecedents are as follows:

In an Information[3] dated November 15, 1994, petitioner Jesus U. Torres was charged with the crime of Malversation of Public Funds before the
Regional Trial Court (RTC), Branch 42, Virac, Catanduanes, the accusatory portion of which reads:

That on or about the 27th day of April 1994, or sometime subsequent thereto, in the Municipality of Virac, Catanduanes, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Principal of Viga Rural Development High School,
Viga, Catanduanes, and as such by reason of his office and duties is responsible and accountable for public funds entrusted to and received by him,
to wit: PNB Checks (sic) Nos. C-983182-Q for P42,033.32; C-983183-Q for P95,680.89; C-983184-Q for P58,940.33, all dated April 26, 1994 in the
total amount of ONE HUNDRED NINETY-SIX THOUSAND SIX HUNDRED FIFTY-FOUR PESOS and FIFTY-FOUR CENSTAVOS (P196,654.54), Philippine
Currency, representing salaries, salary differentials, additional compensation allowance and Personal Emergency Relief Allowance from January to
March 1994 of the employees of the said school, taking advantage of his position and committing the offense in relation to his office, encashed said
checks with the Philippine National Bank, Virac, Catanduanes Branch and once in possession of the money, did then and there willfully, unlawfully
and feloniously and with grave abuse of confidence, misapply, misappropriate, embezzle and convert to his personal use and benefit the
aforementioned amount of money, to the damage and prejudice of the Government.

Contrary to law.

Upon his arraignment, petitioner pleaded not guilty to the crime charged. Consequently, trial on the merits ensued.

Evidence for the Prosecution

[Petitioner] Jesus Torres y Uchi was the principal of Viga Rural Development High School (VRDHS). On April 26, 1994, he directed Edmundo Lazado,
the school's collection and disbursing officer, to prepare the checks representing the teachers' and employees' salaries, salary differentials,
additional compensation allowance (ACA) and personal emergency relief allowance (PERA) for the months of January to March, 1994. Lazado
prepared three (3) checks in the total amount of P196,654.54, all dated April 26, 1994, viz: PNB Check Nos. C-983182-Q for P42,033.32; C-983183-Q
for P95,680.89; C-983184-Q for P58,940.33 (Exhs. "A", "B" and "C"). The [petitioner] and Amador Borre, Head Teacher III, signed the three (3)
checks (TSN, Aug. 30, 2001, pp. 4-8).

Upon the instruction of the [petitioner], Lazado endorsed the checks and handed them to the accused. It was the custom in the school for Lazado to
endorse the checks representing the teachers' salaries and for the accused to encash them at PNB, Virac Branch and deliver the cash to Lazado for
distribution to the teachers (Id., pp. 12-17).

The following day, April 27, 1994, the accused encashed the three (3) checks at PNB, Virac Branch but he never returned to the school to deliver the
money to Lazado (Id., pp. 8-9).[4]

Evidence for the Defense

The [petitioner] admitted that he encashed the subject checks at PNB, Virac Branch in the morning of April 27, 1994 but instead of going back to the
school, he proceeded to the airport and availed of the flight to Manila to seek medical attention for his chest pain. Two (2) days after, around 4:30
o'clock in the morning of April 29, 1994, while he and his nephew were on the road waiting for a ride, three (3) armed men held them up and took
his bag containing his personal effects and the proceeds of the subject checks. He reported the incident to the police authorities, but he failed to
recover the money (TSN, Nov. 12, 2002, pp. 11-25).[5]

On August 31, 2005, after finding that the prosecution has established all the elements of the offense charged, the RTC rendered a Decision[6]
convicting petitioner of the crime of Malversation of Public Funds, the decretal portion of which reads:

WHEREFORE, the Court finds the accused Jesus Torres y Uchi GUILTY beyond reasonable doubt of the crime of malversation of public funds as
defined and penalized under Article 217 of the Revised Penal Code, and hereby sentences him to suffer the indeterminate penalty of imprisonment
ranging from 12 years and 1 day of reclusion temporal, as minimum, and to 18 years, 8 months and 1 day of reclusion temporal, as maximum; to
suffer the penalty of perpetual special disqualification; and to pay the fine of P196,654.54 with subsidiary imprisonment in case of insolvency.

SO ORDERED.[7]

On September 8, 2005, petitioner filed his Notice of Appeal,[8] where it was indicated that he was seeking recourse and appealing the decision of
the RTC before the Court of Appeals.

On February 10, 2006, petitioner filed a Manifestation and Motion[9] acknowledging that he filed the appeal before the wrong tribunal. Petitioner
eventually prayed, among other things, that the case be referred to the Sandiganbayan for appropriate action.

In its Comment[10] filed on June 29, 2006, the Office of the Solicitor General prayed that the appeal be dismissed outright, since transmittal to the
proper court, in cases of erroneous modes of appeal, are proscribed.

On September 6, 2006, the CA issued a Resolution dismissing the appeal, the dispositive portion of which reads:

WHEREFORE, pursuant to the provisions of Section 2, Rule 50 of the Rules and Section 4 of SC Circular No. 2-90, the instant appeal hereby is
DISMISSED OUTRIGHT for lack of jurisdiction.
SO ORDERED.[11]

Petitioner filed a Motion for Reconsideration,[12] but was denied in the Resolution[13] dated October 17, 2006.

Hence, the petition raising the sole error:

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE PETITIONER'S APPEAL OUTRIGHT INSTEAD OF CERTIFYING THE CASE TO
THE PROPER COURT.[14]

Petitioner maintains that he inadvertently filed the notice of appeal before the Court of Appeals instead of the Sandiganbayan. Petitioner implores
that the Court exercise its sound discretion and prerogative to relax compliance to sound procedural rules and to decide the case on the merits,
considering that from the beginning, he has been candid and straightforward about the fact that the case was wrongfully filed with the Court of
Appeals instead of the Sandiganbayan.

The petition is without merit.

Paragraph 3, Section 4 (c) of Republic Act No. 8249 (RA 8249),[15] which defined the jurisdiction of the Sandiganbayan, provides:

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of the regional trial courts whether in
the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided.[16]

Hence, upon his conviction, petitioner's remedy should have been an appeal to the Sandiganbayan. There is nothing in said paragraph which can
conceivably justify the filing of petitioner's appeal before the Court of Appeals instead of the Sandiganbayan. Clearly, the Court of Appeals is bereft
of any jurisdiction to review the judgment petitioner seeks to appeal.[17]

It must be emphasized, however, that the designation of the wrong court does not necessarily affect the validity of the notice of appeal. However,
the designation of the proper court should be made within the 15-day period to appeal. Once made within the said period, the designation of the
correct appellate court may be allowed even if the records of the case are forwarded to the Court of Appeals. Otherwise, Section 2, Rule 50 of the
Rules of Court would apply,[18] the relevant portion of which states:

Sec. 2. Dismissal of improper appeal to the Court of Appeals. - x x x

An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court, but shall be dismissed outright.[19]

In the case at bar, petitioner sought correction of the error in filing the appeal way beyond the expiration of the period to appeal the decision. The
RTC promulgated its Decision on August 31, 2005. Petitioner filed his Notice of Appeal on September 8, 2005. Petitioner tried to correct the error
only on February 10, 2006 when he filed his Manifestation and Motion. Clearly, this is beyond the 15-day period to appeal from the decision of the
trial court. Therefore, the CA did not commit any reversible error when it dismissed petitioner's appeal for lack of jurisdiction.

Besides, even if we look into the merits of his arguments, the case is doomed to fail. Contrary to petitioner's argument, We find that he is an
accountable officer within the contemplation of Article 217[20] of the Revised Penal Code, hence, is untenable.

An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or
property by reason of the duties of his office.[21] The nature of the duties of the public officer or employee, the fact that as part of his duties he
received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is
committed by the accused public officer or employee. Hence, a school principal of a public high school, such as petitioner, may be held guilty of
malversation if he or she is entrusted with public funds and misappropriates the same.

Petitioner also posits that he could not be convicted under the allegations in the Information without violating his constitutional right to be informed
of the accusations against him. He maintains that the Information clearly charged him with intentional malversation and not malversation through
negligence, which was the actual nature of malversation for which he was convicted by the trial court. This too lacks merit.

Malversation may be committed either through a positive act of misappropriation of public funds or property, or passively through negligence.[22]
To sustain a charge of malversation, there must either be criminal intent or criminal negligence, and while the prevailing facts of a case may not
show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence
because both are equally punishable under Article 217 of the Revised Penal Code.[23]

More in point, the felony involves breach of public trust, and whether it is committed through deceit or negligence, the law makes it punishable and
prescribes a uniform penalty therefor. Even when the Information charges willful malversation, conviction for malversation through negligence may
still be adjudged if the evidence ultimately proves the mode of commission of the offense.[24] Explicitly stated -

x x x [E]ven on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence, but the information was
for intentional malversation, under the circumstances of this case, his conviction under the first mode of misappropriation would still be in order.
Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration
of the felony. Even if the mode charged differs from mode proved, the same offense of malversation is involved and conviction thereof is proper. x x
x[25]

WHEREFORE, premises considered, the petition is DENIED. The Resolutions dated September 6, 2006 and October 17, 2006 of the Court of Appeals
in CA-G.R. CR No. 29694 are AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 186659-710 February 1, 2012
ZACARIA A. CANDAO, ABAS A. CANDAO AND ISRAEL B. HARON, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, Respondents.

RESOLUTION

VILLARAMA, JR., J.:

Acting on the motion for reconsideration of our Decision dated October 19, 2011 filed by the petitioners, the Court finds no compelling reason to
warrant reversal of the said decision which affirmed with modifications the conviction of petitioners for malversation of public funds.

However, the suggestion of our esteemed colleague, Justice Lucas P. Bersamin to correct the maximum of the indeterminate sentence, which our
decision erroneously fixed at 17 years and 4 months of reclusion temporal medium, is well-taken. Justice Bersamin explained the matter as follows:

The penalty of imprisonment prescribed for malversation when the amount involved exceeds P22,000.00 is reclusion temporal in its maximum
period to reclusion perpetua. Such penalty is not composed of three periods. Pursuant to Article 65 of the Revised Penal Code, when the penalty
prescribed by law is not composed of three periods, the court shall apply the rules contained in the articles of the Revised Penal Code preceding
Article 65, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions.
Accordingly, reclusion perpetua being indivisible, is at once the maximum period, while reclusion temporal in its maximum period is divided into two
to determine the medium and minimum periods of the penalty.

Conformably with Article 65, therefore, the periods of reclusion temporal in its maximum period to reclusion perpetua are the following:

Minimum period - 17 years, 4 months, and 1 day to 18 years, 8 months;

Medium period - 18 years, 8 months, and 1 day to 20 years;

Maximum period - Reclusion perpetua

With the Court having found no modifying circumstances -- whether aggravating or modifying – to be present, the maximum of the indeterminate
sentence should be taken from the medium period of the penalty, i.e., from 18 years, 8 months, and 1 day to 20 years.

xxxx

WHEREFORE, the motion for reconsideration filed by the petitioners is DENIED.

The brief discussion on penalty and the dispositive portion of our October 19, 2011 Decision, are hereby amended to read as follows:

Under Article 217, paragraph 4 of the Revised Penal Code, as amended, the penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed if the amount involved exceeds P22,000.00, in addition to fine equal to the funds malversed. Considering that neither
aggravating nor mitigating circumstance attended the crime charged, the maximum imposable penalty shall be within the range of the medium
period of reclusion temporal maximum to reclusion perpetua, or eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. Applying
the Indeterminate Sentence Law, the minimum penalty, which is one degree lower from the maximum imposable penalty, shall be within the range
of prision mayor maximum to reclusion temporal medium, or ten (10) years and one (1) day to seventeen (17) years and four (4) months. The
penalty imposed by the Sandiganbayan was therefore proper and correct.

WHEREFORE, the petition for review on certiorari is DENIED for lack of merit.1âwphi1 The Decision dated October 29, 2008 in Criminal Case Nos.
24569 to 24574, 24575, 24576 to 24584, 24585 to 24592, 24593, 24594, 24595 to 24620 finding petitioners guilty beyond reasonable doubt of the
crime of Malversation of Public Funds under Article 217, paragraph 4 of the Revised Penal Code, as amended, and the Resolution dated February 20,
2009 of the Sandiganbayan (First Division), denying petitioners’ motion for reconsideration are AFFIRMED with MODIFICATION in that in addition to
the payment of the fine ordered by the Sandiganbayan, and by way of restitution, the petitioners are likewise ordered to pay, jointly and severally,
the Republic of the Philippines through the ARMM-Regional Treasurer, the total amount of P21,045,570.64 malversed funds as finally determined by
the COA.

In the service of their respective sentences, the petitioners shall be entitled to the benefit of the three-fold rule as provided in Article 70 of the
Revised Penal Code, as amended.

With costs against the petitioners.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 71581 March 21, 1990
CARMEN LABATAGOS, petitioner,
vs.
HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

PADILLA, J.:

This is a petition for review on certiorari of the decision of the Sandiganbayan (Third Division) * in Criminal Case No. 4799, finding the petitioner
guilty beyond reasonable doubt as principal of the crime of malversation of public funds defined and penalized under Article 217, par. 4 of the
Revised Penal Code.

From January 1978 to December 1980, petitioner Carmen Labatagos was the cashier and collecting officer of the Mindanao State University MSU
General Santos City. She filed a leave of absence for the months of March, April and May 1978 and did not discharge her duties for the said period.

On 1 October 1980, Francisco T. Rivera, under Commission on Audit (COA) General Order No. 8022-117 (Exh. C) was designated leader of a team to
conduct the examination of the cash and accounts of the petitioner. When the team conducted the examination, the petitioner did not have any
cash in her posssession, so she was asked to produce all her records, books of collection, copies of official receipts and remittance advices and her
monthly reports of collections.

Based on the official receipts and the record of remittances for the period from January to August 1978, the audit examination disclosed that the
petitioner collected the total amount of P113,205.58 (Exhs. A-1 and A-2) and made a total remittance to the Development Bank of the Philippines
(DBP), the depository bank of the university, in the amount of P78,868.69, leaving an unremitted amount of P34,336.19.

On the basis of similar official receipts and record of remittances, the audit examination further disclosed that for the period from January 1979 to
June 6, 1980, the petitioner made a total collection of P327,982.00 (Exhs. B, B-1, and B-1-a) and remitted to the DBP the total amount of
P256,606.25 (Exhs. B-2 and B-2-a) incurring a shortage of P71,365.75.

The petitioner signed without exception both Reports of Examination (Exhs. A and B) as well as their supporting summaries.

Thereafter, Francisco T. Rivera submitted his report on the examination to the Chairman, Commission on Audit, through the Regional Director, COA,
Region IX (Exhs. A-4 and B-4).

Subsequently, Rivera prepared the letters of demand corresponding to the two (2) audit reports (Exhs. A-3 and B-3) and served them personally on
the petitioner who signed both letters. Despite the demand letters, the petitioner did not submit any explanation of her shortages.

Hence, on 27 October 1981, the Tanodbayan filed with the Sandiganbayan an information charging petitioner with the crime of Malversation of
Public Funds, committed as follows:

That between the periods January 1978 to August 17, 1978, and January 1, 1979 to June 6, 1980, in General Santos City, Philippines, the said
accused a public officer being then the Cashier and Collecting Officer of the Mindanao State University, General Santos Unit, General Santos City,
who, by reason of the duties of her office was charged with the duty of collecting school dues and tuition fees of the students of said school, and of
remitting to, or depositing with, the school's depository bank, the Development Bank of the Philippines, General Santos City branch, all money
collections by way of school dues and tuition fees she collected as Cashier and Collecting Officer, was responsible and accountable for the funds
collected and received by her, by reason of her position as Collecting Officer, did wilfully, unlawfully, feloniously and fraudulently, and with grave
abuse of confidence, misappropriate, and embezzle the total sum of ONE HUNDRED FIVE THOUSAND SEVEN HUNDRED ELEVEN AND 94/100
P105,711.94), Philippine Currency, out of her collection of P441,187.58, during the aforesaid period, which sum of P105,711.94 she appropriated
and converted to her own personal use and benefit, to the damage and prejudice of the Republic of the Philippines in said amount. 1

During the trial, petitioner in her defense claimed that she signed the audit reports on the understanding that her shortage would amount to only
P2,000.00; that she could not be held accountable for the collections for March, April and May 1978 because she was on maternity leave; and that
several disbursements in the total amount of P49,417.12 were not credited in her favor by the auditors. She claimed further that she should not be
held accountable for the alleged misappropriations between the months of January 1978 and August 1978 in the amount of P34,336.19 because
those who appropriated the amounts were her superiors and that the amounts taken were properly receipted but that the receipts were lost.

Respondent Sandiganbayan, however, did not give weight nor credence to her defense. Hence, as previously stated, petitioner was found guilty
beyond reasonable doubt of the crime of malversation of public funds.

The petitioner then filed the instant petition, and alleged the following reasons why the petition should be granted; (1) that respondent court made
manifestly mistaken inferences and misapprehended the significance of the evidence which resulted in the erroneous decision rendered in the case;
and (2) that respondent court erred in finding the petitioner guilty of the crime charged when there is ample evidence submitted showing that she
did not put the missing funds to her personal use.

The petition is devoid of merit.

The only issue to be resolved in this case is whether or not the guilt of the petitioner has been proved beyond reasonable doubt.

The established facts show that respondent court did not err in convicting petitioner for the crime of malversation. As held by said court:

There is no merit in the accused's defense. Her claim that she signed the audit report and statement of collections and deposits prepared by the
audit team of Francisco Rivera on the understanding that her shortage was only P2,000.00 is belied by the figures clearly reflected on the said
documents. Exhibit A, the audit report which she signed without exception, shows that she incurred a shortage of P34,336.19 for the period from
January to August 1978; while Exhibit A-1, the statement of her collections and deposits for the same period which she certified as correct, indicates
the same amount of P34,336.19 as her shortage.
Mrs. Ester Guanzon, the prosecution's rebuttal witness, confirmed that she assisted the accused in the collection of fees; that the accused filed
application for maternity leave in March 1978 but continued reporting for work during that month; that the accused did not report for work in April
1978; and that she (Guanzon) was the one assigned to collect the fees in her stead. Miss Guanzon, however, explained that she turned over all her
collections to the accused during all the times that she was assisting her in collecting the fees; and that even in April 1978 when the accused was
physically absent from office, she also turned over her collections to the accused ill the latters house with the duplicate copies of the receipts she
issued which the accused signed after satisfying herself that the amounts I turned over tallied with the receipts.

There is color of truth to Mrs. Guanzon's explanation. All the collections for the months of March and April 1978 are fully accounted for they are
itemized in the reports of collection, (Exhs. F and G) and shown to have been duly remitted in the remittance advices for those months. (Exhs. F-1 to
F-5; G-1 and G-2).

The auditor was correct in refusing to credit the accused with the three (3) different amounts mentioned in her letter of October 22, 1980. (Exh. 5)
The first sum, P7,140.20, purporting to be refunds of tuition fees to students granted tuition privilages is hot supported by any official authorization
for such refunds by the University authorities. Besides, the supposed list of students who were recipients of the refunds (Exh. 10) is incompetent
evidence being a mere xerox copy uncertified as a true copy of an existing original.

The second sum, P4,494.80 was purportedly spent for the cost of uniforms of the school and basketball balls. P2,100.00 in all (Exhs. 6 and 6-A), and
the balance taken by Alikhan Marohombsar and Auditor Casan, (Exh. 6-B). The third amount, P6,702.12, was supposedly covered by vouchers
submitted to the Auditor's office through Rosa Cabiguin. (Exh. 12-K) Again, the auditor did not err in not crediting the aforesaid sums to the
accused's accountability. The P2,100.00 cost of uniforms and balls, unsupported by a duly accomplished and approved voucher, was not a valid
disbursement. And since the alleged vouchers for P6,792.12 were not presented in evidence nor was any effort exerted to compel their production
in court by subpoena duces tecum, the same was properly refused to be deduced from the incurred shortage of the accused.

All the other sums allegedly taken from the accused by Director Osop, Alikhan Marohombsar and Auditor Casan totalling P31,070.00. (Exhs. 12, 12-
A, etc., 13-A and 14-A), supported as they are by mere pieces of paper, despite the admission by Director Osop of having signed some of them (Exhs.
12-A, 12-D, 12-E and 12-I) were not valid disbursements. Granting that the amounts reflected in the chits were really secured by the persons who
signed them, the responsibility to account for them still rests in the accused accountable officer. Malversation consists not only ill misappropriation
or converting public funds or property to one's personal use but also by knowingly allowing others to make use of or misappropriate them. 2

WHEREFORE, there being no reversible error in the questioned decision of respondent court and the issues raised in this petition being essentially
factual, the petition for review is DENIED and the appealed decision is AFFIRMED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and
Regalado, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59670 February 15, 1990
LEONARDO N. ESTEPA, petitioner,
vs.
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

Petitioner Leonardo N. Estepa seeks to set aside the decision of the Sandiganbayan in Case No. 3658 convicting him of the crime of malversation of
public funds through negligence and sentencing him to an indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum, to
eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum.

Petitioner Leonardo N. Estepa was charged in an information which read:

That on or about January 24, 1980, in the City of Manila, Metro Manila, Philippines, and within the jurisdiction of this Court, said accused, being then
Senior Paymaster, Treasurer's Office, City Hall, Manila, and as such is a public officer accountable for the funds received by him by reason of his said
position and charged with the duty of diligently safeguarding or looking after the funds placed under his custody, did then and there with great
carelessness and unjustifiable negligence, fail to exercise that duty without counting the money during the individual distribution and segregation of
said funds at the General Cashier's Room, before assuming total physical control thereof thereby allowing and permitting an unknown man to take,
steal, misappropriate and embezzle to his personal use and benefit the amount of FIFTY THOUSAND (P50,000.00) PESOS, Philippine Currency, from
the said cashier's room, as in fact that unknown person did take, steal, misappropriate, and embezzle the said amount to the damage and prejudice
of the government in the aforesaid sum.

CONTRARY TO LAW. 1

Upon arraignment, Estepa pleaded not guilty. After trial, the Sandiganbayan rendered a decision convicting Estepa of the crime charged, the
dispositive portion of which read:

WHEREFORE, the Court finds Leonardo N. Estepa guilty beyond reasonable doubt as principal of malversation, defined and penalized under
paragraph 4, Article 217 of the Revised Penal Code, and there being no aggravating nor mitigating circumstance in the commission of the offense, he
is hereby sentenced to suffer an indeterminate penalty of Ten (10) Years and One (1) Day of prision mayor, as minimum; to Eighteen (18) Years,
Eight (8) Months and One (1) Day of reclusion temporal, as maximum; to pay a fine of Fifty Thousand (P50,000.00) Pesos, without subsidiary
imprisonment in case of insolvency; to suffer the penalty of perpetual special disqualification, to indemnify the City of Manila/National Government
the amount of Fifty Thousand (P50,000.00) Pesos and to pay the costs.

His motion for reconsideration having been denied, Estepa filed the present Petition for Review. The Petition was given due course and the parties
required to file briefs. In his brief, 2 petitioner Estepa assigns the following errors:

I. Respondent court gravely erred in convicting petitioner of the came of malversation through negligence although the facts charged in the
information do not constitute an offense or crime.

II. Respondent court gravely erred in convicting petitioner to the crime of malversation through negligence although the prosecution has
never proven beyond doubt that he possessed the allegedly lost money of P50,000.00 which is the material ingredient of the crime charged.

III. Respondent court gravely erred in convicting petitioner of the crime of malversation through negligence by citing his other alleged
negligent acts which were not alleged in the information, contrary to the due process clause of the 1973 Constitution.

IV. Respondent court gravely erred in convicting petitioner of the crime of malversation instead of filing malversation charges against his
superiors whose gross negligence really caused the loss of that amount.

V. Respondent court gravely erred in convicting petitioner, because Justice Guerrero decided the criminal case against him contrary to
Section 2 of Rule V of the Rules of Sandiganbayan, which prohibits the preparation of a decision by a court member who has never attended any
session thereof as long as the other members are still with said court.

From the record, the facts of the case may be collated as follows:

In the morning of 24 January 1980, Leonardo N. Estepa, then a senior paymaster of the Cash Division of the City Treasurer's Office of the City of
Manila, together with nine (9) other paymasters and Cesar R. Marcelo, their Supervising Paymaster, went to the Philippine National Bank ("PNB") to
encash checks amounting to P7,640,000.00 representing the cash advances then being requisitioned by the ten (10) Paymasters. It turned out,
however, that the cash value of those checks was not available at the PNB. Hence, the personnel from the City Treasurer's Office, among them
Estepa, accompanied by some officials of the PNB, proceeded to the Central Bank. In the presence of Marcelo, and the ten (10) paymasters,
P7,640,000.00 in cash was counted out 3 and placed inside two (2) duffel bags which, after being properly sealed, were loaded inside an armored car
and immediately transported to and deposited in the central vault of the City Treasurer's Office of the City of Manila.

Mr. Marcelo testified that there was a power "brownout" at about 1:00 to 2:00 p.m. on that day and the central vault, where they customarily
distribute the cash advances was dark; that he decided with the concurrence of Atty. Kempis, the head of the Cash Division, to distribute the cash to
the paymasters at the latter's Kempis room which was well-lighted by the rays of the sun coming in through a side window. 4 Marcelo stated that in
order to deter third persons from entering that room during the distribution, the door was closed and a guard was posted outside the room by the
door. 5 In the presence of Atty. Kempis and the ten (10) paymasters, Marcelo opened the two (2) duffel bags and again counted out the amount of
P7,640,000.00. 6 The bills were segregated and bundled in denominations of P100.00s, P50.00s, P20.00s and P10.00s up to the last coin, and placed
on a big chaise lounge and on a table inside Atty. Kempis' room. Some of the paymasters were assigned to take charge of the bundles of money, one
paymaster for each denomination; however, Estepa was not one of those so assigned. As each paymaster was called, each paymaster in charge of a
denomination handed to the requisitioner the number of bundles of that denomination corresponding to the amount being requisitioned.

Thus, one at a time, the paymasters were called and given the amounts they had requisitioned. When Estepa's turn came, Mr. Marcelo asked the
paymasters in charge of the bundles of differing denominations to hand to Estepa the amount of P850,000.00. After all the ten (10) paymasters had
gotten their money and while all of them were still inside that room, Mr. Marcelo, as was his usual practice, in a loud voice asked them in Pilipino if
everything was fine. No complaint or protest was made by anyone of them, including Estepa, and all left the room uneventfully. 7 However, ten (10)
minutes later, Estepa reported to Mr. Marcelo that the amount of P50,000.00 was missing from his cash advance. The latter immediately summoned
back all ten (10) paymasters and with the help of the Assistant Cashier, counted once again the money just delivered to each of the ten (1)
paymasters. It turned out that the amount received by each of them, except Estepa, was correct.

Pacita Sison, an examiner from the Commission on Audit testified that on 25 January 1980? she had examined Estepa's cash and accounts which
showed that the latter's account was short by P50,000.00. Thereupon, she reduced her finding into writing which document was signed by Estepa. 8

Estepa, upon receipt of a formal letter from the City of Manila demanding the amount of P50,000.00, submitted a written explanation denying his
liability therefor. He alleged that he had only received the total amount of P800,000.00 — and that the loss of the amount of P50,000.00 occurred
before that sum was delivered to him. Estepa also executed on 5 February 1980 a sworn statement to that effect.

Unconvinced, the Legal Office of the City of Manila filed a complaint against Estepa with the Tanodbayan. In turn, the Tanodbayan, after conducting
a preliminary investigation, filed an information in the Sandiganbayan charging petitioner with the crime of malversation through negligence.

Petitioner's first contention is that the facts alleged in the information did not constitute an offense since there can be no crime of malversation of
public funds through mere failure to count the money. His second contention is that the prosecution had not established that he had in fact received
the total amount of P850,000.00 and that therefore he should not be answerable for the loss of the P50,000.00. Lastly, he claims that he had not
been negligent.

We consider petitioner's first argument to be without merit. We think that petitioner's view of the information is a very narrow and carping one. It
will be seen that the information charged him with having carelessly and negligently allowed an unknown person to steal or misappropriate the
amount of P50,000.00; that he had failed to exercise his duty as a public officer accountable for public funds received by him and that he had failed
to count the money turned over to him at the General Cashier's Room. The crime of malversation of public funds is defined under Article 217 of the
Revised Penal Code in the following terms:

ART. 217. Malversation of public funds or property. — Presumption of malversation. — Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation
does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not
exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six
thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is
less than twenty-two thousand pesos. If the amount exceed the latter, the penalty shall be reclusion temporal in its maximum period to reclusion
perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. (As amended by RA 1060.)

Turning to the second contention of Estepa, we consider that it was proven beyond reasonable doubt that the amount of P850,000.00 had in fact
been distributed to petitioner Estepa. The total amount of P7,640,000.00 was counted out by Mr. Marcelo, Supervising Paymaster, before the actual
distribution to the ten (10) paymasters of the amounts respectively requisitioned by them. After petitioner Estepa had reported that P50,000.00 was
lost or missing from the cash advance, Mr. Marcelo rounded up all the ten (10) paymasters and counted once again the money distributed to and
held by each of the ten (10) paymasters. This recount showed that none of the nine (9) other paymasters had received an amount in excess of the
amount requisitioned by each. In other words, in the recount after Estapa had reported his loss, the total amount of P7,590,000.00 was accounted
for (P7,640,000 - P50,000.00). The loss reported by Estepa occurred after turnover to him of the entire amount of P850,000.00.

The explanation offered by Estepa of the loss of P50,000.00 was summarized by the Sandiganbayan in the following terms:

In exculpation, accused narrated, inter alia, what transpired inside the room of Atty. Kempis during the partitioning of the money to the ten
paymasters. According to him, the room of Atty. Kempis was closed to the public. Together with the other paymasters, accused witnessed the
opening of the two duffel bags and counting of the money by Mr. Marcelo. There was no complaint of shortage. He placed them on one side of a
sofa which was three meters away. Because some of the paymasters were already going out and accused was afraid that the public might enter the
office of Atty. Kempis, accused decided to bring the money with smaller denominations to the table of Pangilinan which was three to four meters
away leaving the bigger denomination at the sofa. He did this because accused could not carry the whole amount. By then, there were some people
inside the office of Atty. Kempis and the latter was seated at his table. Thereupon, he brought the bundles of bigger denominations (P100s and
P50s) directly to his cage and then returned for the bundles of smaller denominations. After counting the money inside his cage, he discovered that
one bundle of P50.00 bills worth P50,000.00 was missing. He searched inside his cage looking at the floor where the bundle could have dropped
because it was dark. After about ten minutes of futile search he reported the loss to Atty. Kempis.

The Sandiganbayan, addressing the question of whether or not petitioner Estepa had been negligent in the handling of the money that he, along
with the other nine (9) paymasters had received from the Supervising Paymaster, analyzed the foregoing explanation of petitioner Estepa in the
following manner:

There is no gainsaying that accused was present when the money which were to be withdrawn from the depository bank, was counted at the
Central Bank. There was no shortage. Before his eyes, the entire amount was placed inside two duffel bags which were sealed and subsequently
deposited in the central vault of the City Treasurer's Office, Manila. When these two duffel bags were opened, accused as well as the other
requisitioning paymasters were present. Again, Mr. Marcelo counted the money. No shortage. Thereupon, each paymaster received the amount he
requisitioned. In the case of the accused, the total sum corresponding to his name was P850,000.00. It was at this moment when Mr. Marcelo asked
the paymasters if they had received the correct amount by directing the question, "Ayos na ba kayo diyan?" No one answered including accused.
This is one phase of his negligence. If he had not yet fully counted the money he received, accused should have voiced himself out. Instead, he let
the occasion pass in silence giving the impression that the money he had received was in accordance with the amount due him.

His fault is not only limited to such inaction. By his own account, people were starting to enter the room of Atty. Kempis. Yet, he left the bundles of
bigger denominations at the sofa without even asking somebody to watch for them and proceeded to the table of Mr. Pangilinan where he left the
money of smaller denominations.

From the sketch (see Exh. E) of the City Treasurer's Office submitted by the accused, it is clear that the table of Mr. Pangilinan was outside the room
of Atty. Kempis. The danger to the money left at the sofa was real. Again, he left the same bundles this time at Ms cage with nobody to watch them
when he returned for the bundles of smaller denominations at the table of Mr. Pangilinan. Accused admitted that at that time, Eufrocinio Mendoza
who shared the same cage with him, was not inside the cage. Prudence should have cautioned accused to wait for Mendoza before returning for the
smaller denominations. Certainly, it was foolhardy to leave bundles of money of high denominations of Pl00 or P50 with no one to guard for them
even only for a fleeting moment. In short, accused's inexcusable negligence consisted of the following: (1) failure to check-and re-check the
denominations by him before the paymasters dispersed, (2) not sounding off that he was not absolutely certain of the amount received when Mr.
Marcelo asked the paymasters, "Ayos na ba kayo diyan?" (3) failure to ask Atty. Kempis or any other person to watch over the money of bigger
denominations at his cage before he returned to the table of Mr. Pangilinan for the smaller denominations. Had he not been remiss on these, there
would have been no opportunity for an unknown hand to surreptitiously get hold of the money. (Emphasis supplied)

After careful examination of the records of this case, including the detailed testimony of the witnesses, we find no reason to depart from the
conclusion reached by the Sandiganbayan that petitioner had indeed been negligent in the handling of the funds which had been turned over to
him.

In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received the public funds and that he did
not have them in his possession when demand therefore was made and he could not satisfactorily explain his failure so to account. An accountable
public officer may be convicted for malversation even if there is no direct evidence of personal misappropriation, where he has not been able to
explain satisfactorily the absence of the public funds involved. 9

Under Article 217 of the Revised Penal Code, there is prima facie evidence of malversation where the accountable public officer fails to have duly
forthcoming any public funds with which he is chargeable upon demand by duly authorized officer. As this Court has pointed out, this presumption
juris tantum is founded upon human experience. 10

In the present case, petitioner was neither able to produce the missing amount of P50,000.00 nor adequately to explain his failure to produce that
amount. Petitioner's explanation leaves one thoroughly dissatisfied. If one took petitioner's explanation seriously and literally, the mysterious,
unseen third person could have picked up the missing bundle of P50.00 bills either (1) from the sofa inside the room of Atty. Kempis where he had
left the bundles of large denomination bills, without asking anyone to keep an eye on them while he left the room; or (2) from petitioner's cage
outside Atty. Kempis' room where he left the bundles of large denomination bills, again without anyone being left in charge thereof, while he went
back to Mr. Pangilinan's desk (also outside Atty. Kempis' room) to retrieve the bundles of small denomination bills he had previously deposited on
top of said desk without, once more, getting some one to watch those bundles. Petitioner's self-confessed coming and going from — sofa to
Pangilinan's desk; back to sofa and then to his cage; and back to Pangilinan's desk and finally to his cage — created at least two (2) clear
opportunities for the invisible third person to pick up the missing P50,000.00. Clearly, petitioner was very relaxed and casual in the handling of the
bundles of money entrusted to him.

Petitioner in fact tried to exculpate himself by suggesting that it was his superiors — Atty. Kempis and Mr. Marcelo who had been negligent and
whose negligence had really caused the loss of P50,000.00. We are unable to take seriously petitioner's claim that because the superiors had not
waited for restoration of electric power in the office of the City Treasurer of Manila before proceeding with the distribution of the P7,640,000.00, his
superiors should be held responsible for the loss. Concededly, it had not been customary to distribute funds in a room other than the central vault.
However, the distribution was done in the room of Atty. Kempis which, petitioner Estepa had admitted, was sufficiently lighted by sunlight coming
through one of the windows. Moreover, as already pointed out, except for Mr. Marcelo, Atty. Kempis, and the ten (10) paymasters and the person
guarding the entrance of the room, no other persons had been allowed to enter the room until after all the ten (10) paymasters had received the
correct amount requisitioned by them. Finally, since no one had asserted otherwise when Mr. Marcelo had asked the group if everyone had been
served, as it were, he had no reason to suppose that petitioner then had not yet ascertained (as he now claims) whether he had received the frill
P850,000.00.

Finally, petitioner argues that the ponente, Associate Justice Buenaventura J. Guerrero had no authority to write the decision in Case No. 3658
because he was not a member of the First Division of the Sandiganbayan when that case was heard.

Section 3, Rule V of the Sandiganbayan reads:

Sec. 3. Assignment of Cases Permanent. — Cases assigned to a division of the Sandiganbayan in accordance with these rules shall remain with said
division notwithstanding changes in the composition thereof and all matters raised therein shall be deemed to be submitted for consideration and
adjudication by any and all of the Justices who are members of the division aforesaid at the time said matters are taken up, irrespective of whether
they were or were not members of the division at the time the case was first assigned thereto; Provided, however, that only such Justices who are
members of the division at the time a case is submitted for decision shall take part in the consideration and adjudication of said case, unless any
such member thereafter ceases to be a member of the Sandiganbayan for any reason whatsoever in which case any Justice chosen to fill the vacancy
in accordance with the manner provided in Section 2, Rule III, of these Rules shall participate in the consideration and adjudication of said case;
Provided, lastly that the Sandiganbayan en banc may, for special or compelling reasons, transfer cases from one division thereof to another.
(Emphasis supplied.)

Under the foregoing Section, any member of a Division of the Sandiganbayan who is such at the time a case is submitted for decision may take part
in the consideration and adjudication of that case.

In the instant case, we therefore agree with the Solicitor General that since Justice Guerrero was a member of the First Division of the
Sandiganbayan at the time the case was submitted for decision, there was no legal objection to his writing the decision for the Division.

WHEREFORE, the Petition for Review is DENIED for lack of merit and the Decision of the First Division of the Sandiganbayan dated 15 December
1981 is hereby AFFIRMED.
SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and
Regalado, JJ., concur.