[G.R. No. 31745. February 12, 1930. ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. JULIO V. PACANA, Defendant-Appellant.
Teogenes Velez, Manuel C. Fernandez, and Francisco Capistrano, for Appellant.
Attorney-General Jaranilla, for Appellee.
1. WHEN EVIDENCE IS NOT SUFFICIENT. — Where the proof is conclusive that, through falsification, the branch of the Philippine National Bank at Misamis was defrauded out of P2,550 in 1921, and that the fraud was committed by either the defendant or Marcelino Calinawan, for the commission of which an information was filed against the defendant and dismissed on the ground that the evidence was not sufficient to sustain the conviction, and on March 29, 1927, another information was filed charging the defendant with the same crime in which it appears that the only evidence introduced in the trial of the last case, which was not introduced in the former trial, was that of Calinawan, to the effect that in November, 1921, the defendant returned to him P500, of which the bank had been defrauded, and then promised to pay the remaining amount, which testimony for six years was concealed by Calinawan and was not otherwise corroborated, and upon the face of the record there is as much evidence against Calinawan as there is against the defendant, the evidence is not sufficient to sustain a conviction, and the defendant should be acquitted upon the ground of reasonable doubt.
The defendant was charged in the Court of First Instance of Misamis with infidelity in the custody of documents with estafa, alleged to have been committed as follows:jgc:chanrobles.com.ph
"That on or about and during the year 1921, in the municipality of Cagayan, Province of Misamis, Philippine Islands, and within the jurisdiction of this court, the above-named accused, being then a public official, to wit, assistant cashier of the Provincial Treasury of Misamis and of the Agency of the Philippine National Bank in Misamis, and having in his custody as such official, some vouchers already paid by the Agency in Misamis of the Philippine National Bank, among which was paid voucher No. 311 and its accompanying checks of which the following checks of the Agency of the Philippine National Bank formed a part, to wit, check No. 735765 in the amount of P350 issued by Ramon Contreras in the name of Ramon Contreras & Co., on January 20, 1921, in favor of the municipal treasurer; check No. 126161 in the amount of P1,700 issued by Go Ana in the name of Go Pioco & Company on August 10, 1921, in cash; and check No. 76419 in the sum of P500 issued in the name of P.P. Smith, Bell & Co., Ltd., on July 25, 1921, in favor of Vicente Emata, then and there willfully, unlawfully and feloniously, with abuse of his aforesaid office, with intent of gain, without the knowledge of their owner, and with the intent to defraud, took and concealed the aforesaid voucher and checks, and pretending to be the legal holder of the aforesaid checks Nos. 735765, 126161 and 76419, the total value of which amounts to P2,550, and that said checks had not yet been paid, made the Philippine National Bank pay them again, and said accused, as assistant cashier of the Agency of the Philippine National Bank in Misamis, did, in fact, pay with the latter’s money in his custody, by reason of his office, the sum of P2,550, the total value of said checks, which amount said accused then and there, willfully, unlawfully and feloniously received, retained in his possession and appropriated for his personal use, with great damage to public interest and to said Philippine National Bank.
"Contrary to law."cralaw virtua1aw library
He was tried, found guilty and sentenced to ten years and one day of prision mayor, with accessory penalties, to pay a fine of 625 pesetas, to indemnify the Philippine National Bank in the sum of P2,050, and to suffer temporary special disqualification for ten years and one day, and to pay the costs, and on appeal assigns the following errors:jgc:chanrobles.com.ph
"I. The lower court erred in holding that appellant, Julio V. Pacana, was assistant cashier of the Misamis Agency of the Philippine National Bank and that, as much, he had under his care and custody the paid up vouchers of the agency.
"II. The lower court erred in holding that voucher No. 311 was, when it disappeared, under the care and custody of the appellant in his capacity as assistant cashier of the Misamis Agency of the Philippine National Bank.
"III. The lower court erred in holding that checks Nos. 76419 and 126161 were presented for payment for the second time by the appellant to Marcelino Calinawan, cashier of the Misamis Agency of the Philippine National Bank, and that said Calinawan duly paid him the amounts of the same.
"IV. The lower court erred in holding that the appellant delivered to Marcelino Calinawan the sum of P500 as reimbursement for check No. 76419 about the end of November, 1921.
"V. The lower court erred in holding that when the appellant delivered to his successor, Feliciano Pacalioga, on October 3, 1921, the office of assistant cashier of the Provincial Treasury of the Province of Misamis, he gave said Pacalioga check No. 735765 as part of the cash money in the sum of P26,761.35 then in appellant’s hands as provincial funds, which he turned over to said Pacalioga, his successor, on the same date.
"VI. The lower court erred in not holding that voucher No. 311 was examined and audited by the district auditor’s office on October 4, 1921, and that, therefore, the accused could not have been responsible for its disappearance, which must have occurred after said date.
"VII. Assuming, merely for the sake of argument, that the appellant was assistant cashier of the Misamis agency of the Philippine National Bank, that voucher No. 311 was confided in his care and custody, and that he removed and concealed the same, the lower court erred in holding that appellant had committed the crime of infidelity in the custody of documents.’"
D E C I S I O N
The history of the case is both novel and interesting. The alleged crime was committed in the year 1921, and in 1922 an information was filed in the Court of First Instance charging the defendant with the commission of the alleged crime which, upon motion of the then prosecuting attorney, Gervasio Diaz, and which the approval of the court, was dismissed on the ground that the evidence was not sufficient to sustain the conviction. In that prosecution the witnesses listed for the prosecution were the identical persons who testified against the defendant in the instant case, chief of whom was Marcelino Calinawan who was the cashier of the Misamis agency of the Philippine National Bank at the time the crime was committed:chanrob1es virtual 1aw library
The order of dismissal is as follows:jgc:chanrobles.com.ph
"The Fiscal in this case presented the following verbal motion:jgc:chanrobles.com.ph
"‘This case was instituted on the 20th day of February, 1922. From this date the case had been set for trial, but the same had not been effected for lack of certain evidence of the prosecution. The following facts appear from a careful investigation made by the Provincial Fiscal: It was found out that three checks of the depositors in the Agency of the National Bank at Misamis had been twice charged in the daily book of the said agency wherein are found certain amendments in the numbers of said checks. Said checks were twice charged against their respective depositors, who refused to pay, because the same had already been paid. A careful investigation of the case was made, and it was found out that three persons could have been responsible for this irregularity; to wit: Julio V. Pacana, the herein accused, Marcelino Calinawan and one Feliciano Pacalioga. These three had been working in the Agency of the National Bank, to wit: Cashier, bookkeeper and filer, the three having discharged these positions in an uncertain manner, without fixing the date in which they acted in the different capacities. We have not found any data from the Provincial Treasury showing the dates when these persons acted in the different capacities. Each one of these persons acted sometimes as filer, sometimes as cashier, and at other times as bookkeeper. It is impossible to determine from the record of the Agency of the National Bank when these three acted as cashier, filer and bookkeeper. When the three were asked during an investigation I made, they all testified that they did not remember the dates when they acted in the different capacities, and when they were asked who made the alterations of the notes on the checks in the ledger, they blamed one another. We cannot find a clear fact to determine who of the three is responsible for this irregularity. Neither can we find whether the amounts represented by the checks, which were twice charged, had been withdrawn from the Agency of the National Bank. This is a case in which a careful investigation is necessary, especially the help of a hand-writing expert who can be furnished by the bank, to decipher the form and handwriting of the person who made the alterations in the ledger of the Agency of the National Bank; and in view of the fact that the case has been pending for a long time, without action, we respectfully pray for the temporary dismissal thereof, with the request that copy of this statement, together with the order which the court may enter, be endorsed again to the district auditor, in order that he may make a careful examination of this case, and inform the office of the Provincial Fiscal whatever conclusion he may have arrived at. The evidence as it is now, does not have sufficient merit to convict any of the three persons above mentioned.’
"Motion of the Fiscal granted, and for the foregoing reasons, the temporary dismissal of this case is hereby ordered, with costs de oficio and the cancellation of the bond put up by the herein accused. Let a copy of this order be forwarded to the district auditor, for his information. So ordered."cralaw virtua1aw library
It will be noted that the alleged crime was committed in 1921; that the first information was filed on the 20th day of February, 192; and that the order of dismissal was made on January 2, 1924, and the information upon which the defendant is now prosecuted was filed on March 29, 927.
The record is conclusive that through falsification, the branch of the Philippine National Bank at Misamis was defrauded out of P2,550, and that the fraud must have been committed by either the defendant, Marcelino Calinawan or Feliciano Pacalioga. It also appears that the only evidence introduced in the trial of the last case, which was not introduced at the former trial, is that of Calinawan, to the effect that in November, 1921, the defendant returned to him P500 for and on account of check No. 76419, and then promised to pay the amounts of the other checks. His evidence on that point is not corroborated by that of any other person or any document, but, if true, would be strong evidence against the defendant. If it be a fact, as Calinawan now testifies, that in November, 1921, the defendant paid him P500 on account of check No. 76419, that was a matter within the personal knowledge of Calinawan at the time of the former investigation, which was pending in court for about two years, and there is absolutely nothing in the record of dismissal which shows or tends to show that Calinawan then told Fiscal Diaz, or any one else, about the alleged payment of P500 by the defendant or his alleged promise to pay the other amounts. That is to say, this important evidence was concealed in the breast of Calinawan, who is the real prosecuting witness in this case, for six years before he ever said anything to any one about the alleged payment of the P500 or the alleged promise of the defendant to pay the remaining checks.
A detailed analysis of the testimony in this case would not be of any real value to this opinion. Suffice it to say that the record shows that Calinawan, as the superior officer, was in a better and safer position to commit the fraud on the bank than the defendant, and, as Fiscal Diaz said, there is at least as much evidence against one as against the other. This, coupled with the fact that in the last trial Calinawan testified that in November, 1921, the defendant paid him the alleged P500, and that he never said a word about that in the former investigation, creates a doubt and suspicion about all of his testimony, which makes it unworthy of belief.
After two years of investigation, former Fiscal Diaz, for the reasons above stated, dismissed the first prosecution against the defendant, with the suggestion that a careful investigation is necessary, especially the help of a handwriting expert who can be furnished by the Bank, to decipher the form and handwriting of the person who made the alterations in the ledger of the Agency of the National Bank." Nothing of that kind was ever done and, as stated, the only evidence against the defendant was that which was in the possession of Fiscal Diaz when he made his motion of January 2, 1924, except that of Calinawan who testified as to the payment of the P500 and the promise of the remaining payments by the defendant. Suffice it to say that Calinawan’s testimony upon that point is not convincing, and is not worthy of belief.
All things considered, we are clearly of the opinion that the evidence against the defendant is not sufficient to prove his guilt beyond a reasonable doubt. The judgment of the lower court is reversed and the defendant acquitted, with costs de oficio. So ordered.
Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.