1. WHEN THERE IS NO VARIANCE BETWEEN THE ALLEGATIONS AND PROOF. — Where an information charges that on and between certain dates, the defendant was treasurer of a corporation and that during said period there was deposited with it the sum of P30,000 and that the defendant once in the possession of said sum, as treasurer, instead of applying it for the purposes intended and of rendering the proper accounting of the money "did then and there willfully, unlawfully, feloniously, and fraudulently fail to comply with his said obligation, but on the contrary, misapply, misappropriate, and convert said sum to his own personal use and benefit, and to the damage and prejudice, etc.," and it appears that the money which was evidenced by checks was deposited in the bank by the defendant admits the unauthorized conversion of funds of the association of P127,146.90, for which he was responsible in a fiduciary capacity and where the testimony is conclusive that the P30,000 in question was a portion of the P127,146.90 which the defendant admits he appropriated to his own use, there is no variance between the information and the proof, and the conviction of the defendant for the crime alleged in the information should be sustained.
2. WHEN BURDEN OF PROOF IS ON DEFENDANT. — Where it appears that the written statement, which the defendant signed, showing evidence of his guilt, was prepared by F, and the defendant contends that in the preparation of the statement and the whole transaction F was acting for, and representing, him as his attorney, and that for such reason the signed statement was privileged, it devolved upon the defendant to prove that fact by competent evidence, and proof of the fact could not be founded upon conjecture or inference only, especially where it does not appear on the face of the instrument and F flatly denies that the relation of attorney and client existed between him and the defendant.
3. WHEN SIGNED STATEMENT IS ADMISSIBLE. — Where the records shows that the defendant voluntarily signed a written statement showing evidence of his guilt, and there is no proof that any inducements or representations were made to him at or prior to the time of the signing, the statement is competent evidence against the defendant as to his guilt of the crime charged.
Exhibit M is as follows:jgc:chanrobles.com.ph
"September 24, 1923.
"In consideration of the assumption by a group of American citizens, residents of Manila, of my obligation to the Manila Building & Loan Association, approximating P127,146.90, arising from the unauthorized conversion of funds of that corporation for which I was responsible in a fiduciary capacity, I agree that I will leave the Philippine Islands permanently as soon as possible; that I will at once resign from all positions held by me, including membership on boards of directors; that I will execute my demand note to F.C. Fisher, trustee, for the benefit of said contributors for the full amount which may be paid on my account to the Manila Building & Loan Association; that I will, upon demand, transfer to F.C. Fisher, as trustee for the contributors above mentioned, all property now owned by me, other that personal effects, and particularly any and all interests in mining claims and mining companies, with authority to dispose of the same and apply the proceeds to the payment of said note.
(Sgd.) "C.H. SLEEPER
"Witness:chanrob1es virtual 1aw library
(Sgd.) "JOHN W. HAUSSERMANN’
We agree with counsel for the defendant that, in the absence of Exhibit M, the conviction could not be sustained. It appears that a short time before it was executed, Mr. Fisher was called to the office of the late Mr. McCoy, who was then the president of the Manila Building and Loan Association, and who held that position for a number of years along with the defendant as treasurer. At this conference it developed that the defendant was short in his accounts for a very large amount, and it was suggested that, to protect the honor and good name of the American Community, an effort should be made to cover the shortage, and steps were taken along that line in which Mr. Fisher took more or less of an active part. It is conceded that he drafted Exhibit M in his own office in which the amount and the name of the association was left blank, and that later the blanks were file in his own handwriting.
With all due respect to counsel for the defendant, there is no evidence which shows or tends to show that in the preparing of this document or the raising of the funds, Mr. Fisher was acting as attorney for the defendant, or that he represented him in any manner. After the full amount of the shortage was obtained and the money with which to make it good was raised, Exhibit M was submitted to the defendant for his signature, and it was then signed by him in the presence of Fisher and Hauserrmann, the latter of whom subscribed his mane as a witness. At the time this was done, no other persons were present. The is no evidence which shows or tends to show that at or prior to his signing any questions were asked by the defendant, or that any statements or representations were made to him of any kind by anyone. Neither is there any evidence that Fisher claimed or represented that he was the attorney for the defendant relied upon either of them as his attorney, or that the relation of attorney and client existed between the defendant and Fisher or Haussermann or either of them. It is true that the record shows that they had been life-long friends, but there is no evidence that in preparing the document or presenting it for signature, or that in any other manner, Mr. Fisher was acting for or representing the defendant. It may be true that at the time the defendant signed the writing, and as a result of the shortage having been made good, the defendant expected to leave the country and avoid prosecution. Be that as it may, the record show that when it was prepared, the defendant read the instrument and signed it voluntarily without asking any questions from anyone, and there is no evidence that any one promised him immunity from prosecution or that defendant relied on any such promise. The questions to whether or not Fisher was acting as attorney for the defendant was a fact to be determined by competent evidence like any other fact. Upon that point Mr. Fisher was the only witness, and he testifies positively that he was not attorney for the defendant and was not acting for him in the transaction. Opposed to his positive testimony there is nothing but conjectures and inferences. Upon that question the burden of proof was upon the defendant, and there was a failure of proof. It follows that the relation of attorney and client did not exist between Mr. Fisher and the defendant and that Exhibit M was not a privileged communication, and hence it was competent evidence.
It is conceded that the checks in question of the Ammen Transportation Company to the amount of P30,000 were drawn in favor of the Manila Building and Loan Association and delivered to the defendant as its treasurer, and that the identical checks were deposited in the bank to the credit of the association, and that its overdraft in the bank was reduced in that amount. Relying upon such facts, defendant’s counsel vigorously and ably contend that he cannot be convicted of the crime charged in the information. That is the real question in this case.
In a well-written opinion, the trial court overruled that contention and points out that during the trial, through his counsel, the defendant admitted that P20,000 was received from the Transportation Company between the 17th and 24th days of October, 1922, and the remaining P10,000 between the 9th and 16th days of April, 1923, for which the three certificates of deposit Nos. 1198, 1199, and 1303, Exhibits G, H, and L, were issued by the defendant. Also, that no entries were made in the books of the association of such amounts until about September 24, 1923, which is the date of Exhibit M, at which time the whole amount of the shortage was made good. In exhibit M the defendant says that "in consideration of my obligation to the Building and Loan Association approximating P127,146.90, arising from the unauthorized conversion of funds of that corporation for which I was responsible in a fiduciary capacity, etc."cralaw virtua1aw library
Notwithstanding the large overdraft of the association in the bank, it appears from the corporate books that about P100,000 in case was supposed to be kept in the company’s safe, and that when previous examinations were made by the auditor, the required amount of money was found to be in the safe in the shape of $500 bills. It also appears that at the time the discovery of the shortage was made, the accountant appeared at the office of the company about 8 a.m. to investigate the corporate records. Mr. Sleeper then stated that he did not have the key to the safe, went away and returned about 10 a.m., and then opened the safe and the money was found to be intact. It was pointed out by the trial court that in opening the same upon his return, the defendant had his back to the clerk and accountant, and that they could not see what he did. It is also pointed out that at the time the money was deposited by the Transportation Company, no corresponding slips or debits were made of the transaction, and for such reason, it was not entered in the books, and hence could not be detected by the accountant whose duty it was to examine the records of the company.
Upon that point, Manuel Pena, a bookkeeper for the Loan Association, testified:jgc:chanrobles.com.ph
"Q. In what books of the Manila Building & Loan Association should the receipt of the P30,000 mentioned in the complaint appear? — A. In the cash book and in the ledger, and also in the book of interest payable.
"Q. Should a credit slip be made for that amount? — A. yes sir, so that it might be entered in the cash book and in the ledger.
"Q. Why was it not entered in those books? — A. Because there was no cash slip.
x x x
"Q. What did the defendant tell you when you asked him for the cash credit slips for the three amounts of P10,000 each? — A. He told me that he would see the auditor about it."cralaw virtua1aw library
Among other counsel for the defendant at the trial made the following admission:jgc:chanrobles.com.ph
"That the funds in question described in the complaint do not appear upon the books of the Manila Building and Loan Association until on or after the 24th day of September, 1923, at which time the check, Exhibit O, was deposited to the credit of that association, and that this amount covered by the complaint was paid by Exhibit O, it being understood by this admission that the deposits mentioned in the complaint appear in the stub account of ’Bills Payable’ dated October 24, 1922, numbered 1189 and 1199, respectively, and dated April 16, 1923, numbered 1303, those being the only entries in the books of the corporation of the three sums mentioned."cralaw virtua1aw library
In an argument between counsel, when C.B. Moore was testifying as a witness for the defense, the force and effect of this admission was pointed out, and the attorney for the defendant made the following statement to the court:jgc:chanrobles.com.ph
"I did not admit, I could not admit, because I did not know, that it covered the specific amount charged in the complaint. I do not know that, and I ask that that admission be corrected on the record accordingly."cralaw virtua1aw library
Based upon which the court made an order striking out the following portion of the admission:jgc:chanrobles.com.ph
"And that this amount covered by the complaint was paid by Exhibit O," on condition that the prosecution would have the right to prove that fact by other evidence, and it later called Rafael Fernandez, who testified that he had been a bank examiner since August 5, 1921, and that he had examined the books of the Loan Association several times in 1921, 1922, and 1923, and the last time in may 4, 1923. His attention was called to Exhibit G in which the association promised and agreed to pay the Ammen Transportation Company P10,000 fifteen days after written demand, with interest at the rate of 7 per centum, and Exhibit H which is also for another P10,000, both dated October 24, 1922, and asked whether these two bills payable had been entered in the books of the association.
"A. I would have seen them because I examined all the books of the Association.
"Q. Did anything attract your attention while examining the cash of the Manila Building & Loan Association at that time? — A. There were two things that came to my attention; the first being the big amount of the notes on hand-they were all P500 bills-and, second, that there was too much cash for such an association kept in the vaults of that Association.
"Q. Up to what date were the transactions of the Manila Building & Loan Association entered in the books of the Manila Building & Loan Association at the time you made your examination on May 4, 1923? — A. February 28, 1923."cralaw virtua1aw library
He also testified to the same thing about Exhibit L, which is for another P10,000, executed on April 16, 1923.
"Q. So that you did not consider this transaction when you made your report to the Insular Treasurer? — A. No sir, I did not.
"Q. Had you considered the P30,000, which is the amount of the transaction appearing in Exhibit G, H, and L, what would have been the effect in the balance that you found? — A. The balance would have been increased by the P30,000."cralaw virtua1aw library
Walter Brooks, as a witness for the prosecution, testified that he was a public accountant in the employ of Fleming, Percy, Smith & Seth who were the auditors for the Building Association, and that he examined its books in the year 1923 for the first time in June, "and other nine or ten occasions between then and September." That it was his duty to examine the cash on hand, and that in June, 1923, he went to the office of the association for that purpose, but found that Sleeper was absent, the safe was locked, and no one present had access to it. He then testified:jgc:chanrobles.com.ph
"Q. Did you on behalf of the firm of Fleming, Percy, Smith & Seth, examine the books of the Manila Building and Loan Association in June, 1923? — A. Yes, sir.
"Q. In the course of that examination, did you find the accounts and books in order? — A. No sir.
"Q. Please inform the court what you did find in order in the books of the Manila Building & Loan Association. — A. I found three bills payable missing from the books.
"Q. Showing you this three bills payable, marked as Exhibits G, H, and L. please in form the court whether these three exhibits have any connection with the three bills payable referred to by you in your previous answer, as missing. — A. These are the three bills which were missing from the books of the Association.
"Q. How did you happen to notice that these three bills payable, were unrecorded in the books of the Association? — A. I asked the bookkeeper, the only person present, for an explanation. His answer was: ’A’ (cont.) And he answered that he would refer my request for information to Captain Sleeper.
"Q. Did Captain Sleeper give you the desired explanation? — A. No, sir.
"Q. Did you ascertain the amount involved in those three bills payable, marked as Exhibits G, H, and L? — A. yes, sir.
"Q. How did you ascertain the amounts involved? — A. By reference to the stubs of the bills payable issued.
"Q. Please explain to the court what should have been the correct procedure to properly record in the books of the Manila Building & Loan Association these transactions. — A. On receipt of the money or checks, a receipt would be given as a bill payable. The entry into the books would have been to the debit of cash and from there posted to the credit of bills payable.
"Q. What would have been the effect of such entries? — A. It would have charged cash with the mount to the indebtedness of the Association under the heading of ’Bills Payable.’
"Q. And how could that cash so charged be cleared? — A. It could be cleared in two ways-by deposits into the bank or by cash disbursements.
"Q. Considering that the defendant received the checks, Exhibit C, D, and J, from the A.L. Ammen Transportation Company, Inc., and that the receipt of these checks was not entered in the books of the association, and considering also that these checks were deposited at the International Banking Corporation, had the accused any means of appropriating the amount as represented by these checks? — A. the effect of the payment into the bank account of a check which has not been charged to the cash is to substitute actual cash in hand by this check deposited in the bank.
"Q. Assuming that a large amount of about P100,000 appeared to have been carried as cash on hand, could that substitution of the amount involved in these three checks be made? — A. Yes, sir.
"Q. Showing you this check marked as Exhibit O, drawn in the amount of P127,146.90, against the Hongkong & Shanghai Banking Corporation, by Mr. Fisher, do you know whether the amount involved in this check was paid to the Manila Building & Loan Association, and if so, when? — A. Yes, sir, it was in September, 1923.
"Q. Do you know whether the P30,000 represented by a checks, Exhibits C, D, and J, were included in this check, Exhibit O? — A. yes, sir, they were included.
"Q. How do you it? — A. I made a statement of receipts and disbursements by which the amount of that check was determined, and I included the three bills payable not recorded in the books in that amount.
"Q. Showing you this Exhibit Q, I ask you whether you recognize this document? — A. Yes, sir, I do.
"Q. Why do you recognize it? — A. It contains my signature.
"Q. To whom did you deliver this letter, Exhibit Q? — A. to Mr. Fisher.
"Q. Do you know whether this letter has any connection with the check, Exhibit O? — A. The letter you have just exhibited was given in the same date as the check, and I can only assume that there is a connection between that and the check.
"Q. What connection is that? — A. The connection between the letter and the check is that the letter was given to Judge Fisher at his request after ascertaining what the cash balance of the Manila Building and Loan Association should be.
"Q. Before or after including this P30,000? — A. After including the P30,000.
"Q. Do you know how much did it amount, or it should amount, the cash on hand of the Manila Building and Loan Association, in June, 1923, when you examined the books of that Association here for the first time, according to the books of the corporation? — A. The balance appearing in the books at that time was short the amount of the three bills payable not entered."cralaw virtua1aw library
The record shows that the witness Brooks is an experienced accountant, that he knows his business, and his testimony is clear and convincing and not disputed. He testifies as a fact that the P30,000 in question was included in and is a part of the gross amount of P127,146.90, which the defendant over his own signature admits was an "unauthorized conversion of funds of that corporation for which I was responsible in a fiduciary capacity." He also testifies that "the balance appearing in the books at that time was short the amount of the three bills payable not entered," the three bills payable about which he testifies being for the P30,000 her in question.
Upon all of such matters, there is no dispute or conflict in the evidence. The defendant having admitted in writing that he misappropriate the P127,146.90, and the testimony being undisputed that the P30,000 in question was a part of the P127,146.90, the proof upon that point is conclusive.
Assuming that to be true, the defendant contends that there is a fatal variance between the proof and the crime charged in the information. That point is not tenable.
The information alleges in substance that the defendant once in possession of the P30,000 "instead of applying the said sum for the purposes intended therefor by the Manila Building and Loan Association and of rendering proper accounting of the disbursements made thereof, as it was his duty so to do, did then and there willfully, unlawfully, feloniously and fraudulently fail to comply with his said obligation, but on the contrary, misapply, misappropriate, and convert said sum to his own personal use and benefit, etc." The defendant was not misled or deceived by the information. In legal effect it charges him with taking the amount if the funds of the association, and wrongfully converting that amount of the funds of the association to his own use. In other words, that upon the receipt of the checks he took that amount of the funds of the association and converted it to his own use. Of course, he could not appropriate the checks, but the proof is conclusive that he did take the amount evidenced by the checks and converted it to his own use. He is not charged with estafa of the checks, but with estafa of the amount of money evidenced by the checks.
It is fair to say that defendant’s counsel have made a very vigorous, able, and adroit defense. But in the final analysis, the stubborn fact remains that the defendant over his own signature admits the appropriation of the P127,146.90 and the proof is conclusive that the P30,000 in question enters into and is a part of that gross amount.
The judgment of the lower court is affirmed, with costs. So ordered.
Malcolm, Avanceña, Villamor, and Ostrand, JJ.
, dissenting:chanrob1es virtual 1aw library
I fully agree with the reasoning and conclusions of Justice Street and Romualdez in their dissenting opinion. I cannot give my assent to a procedure which will permit a complaint for one crime and a conviction for another, as has been done in the present case, even though the accused is guilty of the other. Before that can be done, a new complaint or an amended complaint must be presented.
, dissenting:chanrob1es virtual 1aw library
It is plain enough that the appellant in this case was short in the funds of the Manila Building and Loan Association, on September 24, 1923, to the extent of P127,146.90; and if the information had charged the embezzlement of funds of the association to that amount, or less, without specifying what particular money was embezzled, the Government would have had a clear case. The fiscal, however, in drawing the information, saw fit to charge the appellant with the appropriation of the specific sum of P30,000, which had been deposited on two occasions with the association by the A.L. Ammen Transportation Co., Inc.; and unfortunately for the prosecution we know precisely what became of that money after the checks drawn by the Ammen Company reached the hands of the appellant, which is, that said checks were deposited by the appellant to the credit of the association in its proper account in a bank. This fact is admitted; and it seems to me that this must be the end of the charge of embezzling that money. the prosecuting office simply made the mistake of being a little too particular in his accusation and hit upon transactions that were in fact straight.
But it said that the P30,00, proceeds of the Ammen money, is merely part of the larger sum of P127,146.90, representing the appellant’s shortage in the general funds of the association; and, as proving this, reliance is placed upon certain irregularities shown in the association’s books with respect to the Ammen deposits, namely, that the amount received had not been debited to "Cash" in the cash-book and had not been credited to "Bills Payable" in the ledger, as should have been done. These irregularities show that the appellant was attempting to conceal a defalcation, but they do not prove that the appellant had appropriated the proceeds of the Ammen checks.
Walter Brooks, a public accountant, was introduced as a witness with a view to showing that the P30,000 in question formed a part of the larger amount for which the appellant is how to have been short. This witness stated that when the proper entries in the cash-book and ledger were made, it resulted that the appellant’s shortage was greater by P30,000 that it would have been if those irregularities and been disregarded. It was only in this sense that the witness meant to say, as I understand him, that the Ammen deposits were included in the larger amount; and this is far from showing that the appellant had embezzled those particular deposits.
In my opinion the appellant’s offense did not consist in the misappropriation of the funds mentioned in the information, and hence he is entitled to an acquittal on charge brought against him.
, dissenting:chanrob1es virtual 1aw library
With due respect to the majority, I dissent from its decision in the instant case. I believe that the accused is entitled to an acquittal on the ground that the crime allege in the complaint was not proven.
He is accused of having misappropriated, to the damage of the Manila Building and Loan Association, of which he was secretary-treasurer, the sum of P30,000 received by him from A.L. Ammen Transportation Company during the period between October 17, 1922, and April 16, 1923. This sum us represented by the checks, C, D, and J. The decision of the majority cannot but admit the following with regard to these checks and their amount:jgc:chanrobles.com.ph
"It is conceded that the checks in question of the Ammen Transportation Company to the amount of P30,000 were drawn in favor of the Manila Building and Loan Association and delivered to the defendant as its treasurer, and that the identical checks were deposited in the bank to the credit of the association, and that its overdraft in the bank was reduced in that amount. Relying upon such facts defendant’s counsel vigorously and ably contend that he cannot be convicted of the crime charged in the information. That is the real question in this case." (Italics are ours. See majority decision, folio 5.)
If the accused deposited, as he in fact did deposit, in the International Banking Corporation in the name, and to the benefit, of the Manila Building and Loan Association the P30,000 paid by A.L. Ammen Transportation Company, Inc., there resulting from such as operation a reduction by an equal amount of the overdraft that then the aforesaid Manila Building and Loan Association had with said bank, it is clear that the accused did not misappropriate said P30,000.
But Exhibit M signed by the accused was introduced as evidence, wherein there is an admission of the fact of the sum of P127,146.90 having been misappropriated, and it is asserted that the P30,000, which is the subject-matter of the complaint, is a part of this amount.
The evidence, however, dies not show, in my opinion, that the accused has ever understood that the P30,000 in question was included in the sum stated in Exhibit M.
It must be taken into account that it is not the accused who prepared Exhibit M, but Mr. Fisher, who also did not know the precise amount that was to be stated in said document Exhibit M, and for this reason the space for the proper figures was left blank. It was only a few minutes before the accused was caused to sign said Exhibit M on the morning of September 24, 1923, that Mr. Fisher filled out the space in blank, by writing the said sum of P127,146.90, which he copied from the letter Exhibit Q, which had just then been delivered to him by Mr. Brooks.
And this amount of P127,146.90, appearing in the letter Exhibit Q of Mr. Brooks addressed to Mr. Fisher, was obtained by an examination of the books of the company, made by Mr. Brooks in the said month of September, 1923, which books did not contain complete data, for the last entry made thereon was of February 28, 1923, the operations made by the company from said date up to September 24th of the same year not appearing, therefore, in said books.
Mr. Brooks took only those deficient books as his guide, and did not examine the contents of the safe in making his examination, as he expressly states in said letter Exhibit Q. He took into account against the accused the P30,000 that was the value of the checks C, D, and J, for the reason that the bulls payable corresponding to said checks had not been entered on the books of the company. It must be noted that the very fact of the accused having issued said bills payable, which are Exhibits G, H, Y, and L submitted for the signature of, and signed by, the president-manager of the Manila Building and Loan Association, removes all suspicion of concealment from said company by the accused of the receipt of said amount and could prevent the accused from taking from the safe of the company a sum equivalent to that represented by said bulls payable, the corresponding stubs of which, Exhibits 2, 2-a, and 2-b, existed among the books of the company and were presented as evidence.
The fact that said bills payable were not opportunely entered on the books of the company really constitutes an irregularity, tending to show negligence on the part of the said accused who kept said books, but under the facts in this case it does not necessarily imply bad faith, much less and intention to cheat, when there positively appear the legitimate and regular whereabouts of the sum of P30,000, the subject-matter of this action, deposited by the accused in the bank in the name and to the benefit of the Manila Building and Loan Association.
The evidence of record shows that the P127,146.90 stated in Exhibit M does not represent the true status of the account of the Manila Building and Loan Association on the 24th day of September, 1923, when said exhibit was signed. It also appears from the record that before signing Exhibit M, the accused did not have sufficient opportunity to verify the sum therein written, or to ascertain whether or not the sum of P30,000, the value of the checks C, D, and J, now the subject-matter of the instant case, was included therein.
It was not, therefore, sufficiently shown that the accused understood the P30,000, which is the subject-matter of the complaint, to have been included in his confession in Exhibit M, nor that said sum must in justice be included in the amount written on said Exhibit M. Any sum of money that the appellant desired to confess in Exhibit M having misappropriated does not, and cannot, include the P30,000 mentioned in the complaint.
From this it follows that Exhibit M does not show the facts alleged in the herein complaint; and if said document is any proof at all of any crime, such crime is not alleged nor included in the complaint filed in this case.