1. MISAPPROPRIATION OF FUNDS. — Held, That under the facts stated in the decision the defendant was not guilty of the crime misappropriation.

Agnelio Vinco, the defendant in this case, was the municipal treasurer of the town of La Carlota, in the Province of Occidental Negros.

The court below made the following findings:chanrob1es virtual 1aw library

(1) "On the 18th of April, 1905, the acting Treasury inspector of this province, Mr. Brooks, sent a circular letter (Exhibit C 1) to the defendant in this case, notifying him that a thorough examination of his accounts was to be made, and directing him to report in person to the office of the provincial treasurer, on or before the 5th of May following, bringing with him all the money then in his possession belonging to the municipal, provincial, and trust funds, etc.

(2) "When the defendant reported to the provincial treasurer in pursuance of the aforesaid order, it was found upon an examination of his accounts that there was a balance in favor of the municipality of 6,966.49, which said balance the defendant, there and then, turned over to the provincial treasurer.

(3) "It appears, however, that the defendant had not included in his accounts, P820.52 which was a part of the funds he retained in his possession according to Exhibits B 1 and 2.

(4) "The defendant’s attention having been called to this discrepancy, he informed the examiner that this sum of P820.52 was then in the municipal safe of his town and asked permission to return to La Carlota, accompanied by an official of the provincial treasurer’s office, to see that he, in fact, had the said sum in the municipal safe. He made a similar petition to the provincial board when the latter investigated the matter.

(5) "Several witnesses presented by the defendant testified that the latter upon his return to La Carlota, after the examination of his accounts, opened the municipal safe in their presence and found there the sum of P820.52

(6) "The sum of P820.52 was subsequently paid by the accused into the provincial treasury."cralaw virtua1aw library

It appears, therefore, that the defendant did not abstract or misappropriate any sum of money.

"But," the court below says, "the P820.52, not having actually been taken from the safe, the crime was not consummated, and the original liability incurred by the defendant was not complete.

"However," the court continues, "the defendant having executed most of the acts which were necessary to consummate the crime of embezzlement of public funds, he is liable for his attempt to commit such crime, which he did not consummate — not on account of his voluntary desistance, but because the shortage was discovered in time to prevent it."cralaw virtua1aw library

(7) The court below continuing found that: "on the 31st of August, 1904, the defendant sent to the provincial treasurer invoice No. 8 (Exhibit B1), informing the provincial treasurer that he had retained in his possession the sum of P353.12, representing the receipts for that month. On the 31st of October he sent invoice No. 10 (Exhibit B 2) to the provincial treasurer, also informing him that he had retained in his possession the sum of P935.69