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[US v. JOSE FELICIANO](https://www.lawyerly.ph/juris/view/cdeb?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No, Feb 03, 1910 ]

US v. JOSE FELICIANO +

DECISION

15 Phil. 142

[ G. R. No, 5623, February 03, 1910 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JOSE FELICIANO, DEFENDANT AND APPELLANT.

D E C I S I O N

ARELLANO, C.J.:

The defendant  herein is charged with having  appropriated and applied to his own use the sum of P84.90 which was deposited with him as municipal treasurer and  deputy provincial  treasurer, municipality of  Pasig,  Province of Rizal.

After being informed  of the complaint, the defendant pleaded guilty,  stating that as soon as he became aware, at the  time of  the examination of his accounts,  that the P84.90 were actually missing from the funds, he  procured the immediate return of the same by depositing the money in the safe.  He also testified the P84.90 were a part of the sum of P274.40 which represented  the deposit made by the bidders on certain municipal contracts, which amount he did not enter in the books as cash, thereby following the practice of his predecessor.

In view thereof the court terminated the proceedings and entered judgment, holding the accused  guilty of the crime of misappropriation of public funds and sentencing him to two months' imprisonment,  to pay a fine of  P20 and the costs, from which judgment the defendant has appealed.

The defense contends that the law which should be applied to this case is article 392 of the  Penal  Code, which, according  to his understanding, was not repealed, except its paragraph 2, in so far as it penalizes the appropriation of public funds, which are not restored, as a crime of misappropriation.   But the provisions of section  4 of Act No. 1740 are very clear, expressly providing that -
"Articles 390, 391,  and 392  of  the Penal  Code of the Philippine Islands, in so far as the  same may  be in conflict with this Act, are hereby to that extent only repealed."
This section is construed in the case of The United States vs. Vicente Calimag (12 Phil. Rep., 687), in connection with the case of The  United States vs. Pedro Togonon (12 Phil. Rep., 516).

The failure or inability of the official  in charge of public funds or  property to  produce them upon the demand of the auditor or examiner  of the accounts, is  prima facie evidence that such missing funds  or property have been put to personal  uses, or used for  personal ends  by such person; and it is also prima facie evidence of misappropriation, within the meaning of this word  under  section 1 of Act No. 1740.  If from this moment there is prima facie evidence of the crime of misappropriation  (sec. 2)  and the taking for personal uses is .to be presumed as a crime, from the very moment the defendant fails to produce all the funds upon the demand of the auditor or examiner of the accounts, it is manifest that a subsequent act, as is reimbursement, in the true meaning of this word, can not in any way affect the existence  of  the  crime,  which  is  apparent  from  the absence of the funds in the hands of the depositary and the inability of the latter to produce them at the time of their demand by the inspector, auditor, or examiner of accounts.

The penalty imposed by the lower  court being  in  accordance with the law, the judgment is hereby affirmed with the costs of this instance.  So ordered.

Torres,  Mapa,  Johnson,  Carson, Moreland, and Elliott, JJ., concur.

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