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[G.R. No. 2415. August 7, 1906. ]

THE UNITED STATES, Plaintiff-Appellee, v. JAMES W. WALSH, JR., Defendant-Appellant.

Gustave L. Solignac, for Appellant.

Solicitor-General Araneta, for Appellee.


1. EMBEZZLEMENT; DOUBLE JEOPARDY. — A conviction of a public officer for embezzlement of Government property under article 390 of the Penal Code, founded on a shortage of money, bars a second prosecution of the same man for the same offense, in the same office, during the same period, founded on a shortage of stores and supplies. The second trial puts him twice in jeopardy.



The defendant was charged under article 390 of the Penal Code with embezzlement of public property to the amount of P7,000, Philippine currency, which had come into his hands as Constabulary supply officer. He was convicted in the Court of First Instance of Masbate of the misappropriation of commissionary stores and quartermaster supplies of the value of P4,055.36, Philippine currency, and sentenced to imprisonment (prision mayor) for ten years, with costs. The evidence fully supports the conclusions of the trial judge as to the misappropriation of the property, its character, and value.

On the proceeding day, in the same court, the defendant had been tried and convicted and was, on the date of the trial therein, sentenced to ten years of presidio mayor for the embezzlement of Government funds while holding office as such officer. The dates covered by both charges and the witness heard were the same; both complaints were made under the same article of the code, the only difference being that in the first case the property was specified to be money and in the second stores and supplies.

We are of opinion that in these two cases but one crime was charged, for which he could not be twice put in jeopardy. The offense under article 390 can not be divided into as many crimes as there are public articles or classes of article unaccounted for by the accused official. In this respect it differs from successive thefts of distinct articles. The defendant has been already tried and punished for this crime. He asserted this defense in the only way at that time available, in objecting to testimony and in his motion for a new trial, based upon copies of the complaint and sentence in the first case.

This judgment proceeds solely upon the ground that the defendant has already been tried and convicted of this offense.

The judgment of the lower court is reversed and the accused is ordered discharge at the expiration of the term of his first sentence, but without prejudice to any right that the government may have to proceed civilly against him or his sureties, with costs de oficio.

At the expiration of ten days judgment should be entered in accordance with this decision and the case remanded to the court below for execution of said judgment. So ordered.

Arellano, C.J., Torres, Mapa, and Willard, JJ., concur.

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