GR L 13573; (November, 1918)

EN BANC

G.R. No. L-13573; November 9, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
FERNANDO N. ONDARO, defendant-appellant.

Pedro de Leon appellant.
Acting Solicitor-General Feria for appellee.

JOHNSON, J.:

It appears from the record that the prosecuting attorney of the Province of Misamis, on the 2nd day of October, 1917, presented a complaint against the defendant charging him with a violation of section 2672 of Act No. 2711 (of the crime of embezzlement). Upon that complaint the defendant was duly arrested, arraigned and, having plead not guilty, placed on trial. At the close of the presentation of proof by the prosecuting attorney, the attorney for the defendant presented a motion praying that the action be dismissed. Said motion is in the following words:

Before proceeding, counsel for the defense presents a motion praying the court for the acquittal of the accused in this case. It is alleged in the information that the said accused, as postmaster and telegraph operator of the post an telegraph office of the said municipality had, as such, under his control and responsibility, the funds of the said office, which funds belong to the Government of the Philippine Islands. The question which we submit for decision is whether a certain amount delivered to the postmaster without any documentary proof that this amount ha been received, thus forming a part of the funds belonging to the Government, will make this postmaster liable for malversation.

Upon a consideration of said motion, the Honorable John P. Weissenhagen, judge, granted the same an dismissed the defendant, with costs de officio.

Upon the announcement of said decision, the prosecuting attorney presented a motion praying that the defendant be retried under a complaint charging the proper offense, which motion the court granted, basing his decision upon sections 27 and 37 of General Orders No. 58 and the decision of the Supreme Court in the cases of the United States vs. Balmori (1 Phil. Rep., 660) and the United States vs. Sarabia (4 Phil. Rep., 566). Against the order granting said motion of the prosecuting attorney, the defendant duly excepted.lawphil.net

On the 3rd day of October, 1917, the prosecuting attorney presented a new complaint charging the defendant with the crime of estafa.

An examination of the two complaints will show that each alleges substantially the same facts. The title of the first complaint stated that the defendant had violated section 2672 of Act No. 2711. Said article describes the crime of embezzlement. The title of the second complaint stated that the defendant was charged with the crime of estafa. An examination of the two complaints shows:

(a) That the defendant on or about the 25th day of October, 1916, was postmaster and telegraph operator of the Bureau of Posts, in the municipality of Plaridel of the Province of Misamis; (b) that on said day he received from one Yap Tiao Que the sum of P30 to be sent by telegram to the Universal Film Company at Manila, and the additional sum of P4.90 to pay the costs of transmission of said P30; (c) that instead of transmitting by telegram the said P30 to the Universal Film Company at Manila, he appropriated the same, together with the P4.90 to his own use.

Upon the second complaint the defendant was again arraigned upon the 4th day of October, 1917, and plead not guilty. Later, and on the same day (October 4, 1917), the defendant demurrer to the complaint upon the ground that the facts alleged therein did not constitute a crime, which demurrer was overruled on the same day. Thereupon, and on the same day (October 4, 1917), the cause was brought on for trial.

The only objection made to the second complaint at the time of arraignment was that it did not state facts sufficient to constitute a cause of action.

By agreement, at the beginning of the second trial, the evidence which had been presented by the prosecuting attorney in the first trial was presented and admitted as proof. At the close of the second trial, and after hearing and considering the evidence, the Honorable John P. Weissenhagen found the defendant guilty of the crime of estafa and sentenced him to suffer imprisonment for a period of two months and one day of arresto mayor, to reimburse the offended person in the sum of P34.90 and to pay the costs. From that sentence, the defendant appealed to this court.

No defense of former jeopardy was presented. That defense, therefore, cannot now be considered, having been presented, for the first time, in this court. It has been held, in numerous cases, by this court, that if an objection is not made in the trial court in a criminal action, it will not be considered when made in the appellate court for the first time. (U.S. vs. Sarabia, 4 Phil. Rep., 566; Mortiga vs. Serra and Oblena, 5 Phil. Rep., 34 [204 U.S., 470]; U.S. vs. Paraiso, 5 Phil. Rep., 149 [207 U.S., 368]; U.S. vs. Flores, 9 Phil. Rep., 47; U.S. vs. Planas, 21 Phil. Rep., 90; U.S. vs. Gow Chiong, 23 Phil. Rep., 138; U.S. vs. Cardell, 23 Phil. Rep., 207; U.S. vs. De los Santos, 33 Phil. Rep., 397.)

The plea of former jeopardy or autrefois acquit and convict are defenses which must be plead at the time of the arraignment and it is too late to present the same as defense on an appeal. (U.S. vs. Wilson, 7 Peters [U.S.], 150.) The right to interpose the plea of former jeopardy may be waived. (Ex parte Lange, 18 Wallace [U.S.], 163; U.S. vs. Ball, 163 U.S., 662; Murphy vs. Mass., 177 U.S., 155; Hopt vs. Utah, 114 U.S., 488; Trono vs. U.S., 199 U.S., 521 [3 Phil. Rep., 213].)

The appellant alleges that the evidence adduced during the trial of the case was insufficient to show that he was guilty of the crime described in the complaint. The lower court, in both its first and second decision, arrived at the conclusion that the defendant had received the P34.90 in the manner and form described in the complaint.

From an examination of the evidence, we find that the conclusion of the lower court is fully established beyond a reasonable doubt.

It having been proved, beyond a reasonable doubt, that the defendant had committed the act described in each of the complaints, the question arises; What crime, if any, did he commit? The first complaint qualified said act as constituting the crime of estafa. The Attorney-General, in a very carefully prepared brief, reached the conclusion that the crime described in the body of the complaint constituted the crime of embezzlement and recommended that the sentence of the lower court be modified, and that the penalty provided for the crime of embezzlement be imposed upon the defendant.

It will be remembered that the defendant was the postmaster and telegraph operator in the municipality of Plaridel, Province of Misamis, an employee of the Bureau of Posts, and as such telegraph operator it was his duty, when so requested, to receive money for transmission by telegram.

The record shows that it was the custom and the requirement of the Bureau of Posts, when money was so received by telegraph operators, to issue receipts or some evidence of having received money for the purpose of being transmitted by telegram. In the present case, no receipt or voucher was issued and the appellant argues, for that reason, that he is not guilty of the crime of embezzlement. The proof shows, beyond question, that he received the P34.90 for the purposes above indicated. His failure to issue a receipt or other evidence is not sufficient to overcome the positive proof that he did, in fact, receive said money. When he received the money for transmission it became a part of the public funds, and the telegram, which it was his duty to send, was simply an order that the Bureau of Posts should pay it out of the public funds at its disposal in Manila, as directed by the offended party. The money, immediately upon receipt, became a part of the public funds of the Bureau of Posts and, of course, had to be accounted for as a part of the receipts and disbursements of public funds. He had authority to receive said money by virtue of his official position and failed to account for the same but, on the contrary, appropriated said sum to his own use and failed and refused to account therefor when demand upon him was so made.

We are clearly of the opinion that the crime described in the body of the complaint is the crime of embezzlement and not of estafa. We have decided in numerous cases that the qualification of the crime given by the prosecuting attorney in the title of a complaint does not control the qualification of the crime as described in the body of the complaint. (U.S. vs. Supila, 13 Phil. Rep., 671; U.S. vs. Treyes, 14 Phil. Rep., 270; U.S. vs. Jeffrey, 15 Phil. Rep., 391; Davis vs. Director of Prisons, 17 Phil. Rep., 168, 172; U.S. vs. Lim San, 17 Phil. Rep., 273; U.S. vs. De Guzman, 19 Phil. Rep., 350; U.S. vs. Campo, 23 Phil. Rep., 368, 371; U.S. vs. Guzman, 25 Phil. Rep., 22; U.S. vs. Panlilio, 28 Phil. Rep., 608, 615; U.S. vs. Lafuente, 37 Phil. Rep., 671.)

The record shows that, by virtue of the official position of the defendant, he was authorized to receive the money in question; that he was dealing with money which, at least, had become impressed with public attributes or character; that the defendant was at least, by virtue of his official position, accountable to the government for the funds received. He was accountable to the government for said money. (U.S. vs. Regala, 28 Phil. Rep., 57.)

We fully agree with the recommendation of the Attorney-General that the defendant is guilty of the crime of embezzlement, and that is the crime described in the complaint and not the crime of estafa.

Therefore, the sentence of the lower court must be revoked, and it is hereby ordered and decreed that the appellant be sentenced to be imprisoned for a period of six months and to pay a fine of P34.90, to indemnify the offended party in the sum of P34.90, or to suffer subsidiary imprisonment in case of insolvency and to pay the costs. (U.S. vs. Velasquez, 33 Phil. Rep., 368; U.S. vs. Lafuente, 37 Phil. Rep., 671.)

And it is hereby further ordered and decreed that he be further sentenced with the accessory penalty provided for by Act No. 1740 and its amendment. So ordered.

Torres, Street, Malcolm, Avanceña and Fisher, JJ., concur.

Batas Pinas