[ G.R. No. 4778. October 09, 1908 ] 11 Phil. 432
[ G.R. No. 4778. October 09, 1908 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ANTONINO ESPINOSA, DEFENDANT AND APPELLANT. D E C I S I O N
TRACEY, J.:
On the 19th of March, 1906, the appellant was on trial for malversation of public moneys while holding his office of treasurer of Concepcion, Tarlac, when the Government building burned, and with it all the papers in the case, including the evidence. At a retrial in September, 1907, the appellant was convicted and sentenced to a fine of P101.67, or 10 per cent of the amount of the defalcation, with subsidiary imprisonment. On the 28th of April, 1905, Mariano Aguilar, agent of the provincial treasurer, on searching the safe in the barrio treasury, discovered a shortage of P1,016.68. On notifying the provincial treasurer of the shortage he was directed to take charge of the treasury, which Espinosa was ordered to turn over to him. According to the accused and his witnesses, when the count of the money in the safe was finished at noon he informed the agent that there was nothing missing and that the balance was in his drawer, and asked him if he wished to count it, to which the agent replied that he would do so after dinner. Returning at 2 o’clock, the agent declined to undertake the recount, including the additional money, and at 3 o’clock telephoned the provincial treasurer, and received from him the instruction to take charge. The rest of the afternoon was spent in inventorying and turning over the property, and the next day the agent awaited the coming of the fiscal to advise him whether to accept the balance of the money, which had not been in the safe, which was finally turned over to him about 5 o’clock. The reason assigned for having a part of the money in the drawer, instead of the safe, where the law requires it to be regularly kept, was that when tho agent arrived a count and verification of it was going on, and the uncounted portion was temporarily placed in the drawer for safety, the counted packages being secured in the safe. The testimony of the accused as to the occurrence is supported in important particulars by that of one of the Government witnesses, Benito Suarez, the former municipal president, as well as by Iñigo Espiritu, one of the office clerks who was present at the transaction, while the prosecution rests virtually upon the narrative of Aguilar alone, who admitted that he had never asked or required of Espinosa a return of the money claimed to be missing, that he could not remember whether he had asked him where was the missing fund which he had noted but “that he had the idea that the money was missing,” and finally, positively, that he had not asked him for its whereabouts and he was unable to remember whether or not Espinosa had ever told him that the missing money was in another part of the office. In our opinion, the prosecution in this case has failed, less on account of the affirmative defense, which, however, is tenable, than because of its own inherent weakness. It is impossible to sustain a conviction upon the testimony of a single witness, who admits his own want of recollection as to the most important particulars of the disputed transaction, such as lay particularly within his notice as an official charged with the duty of acting upon them and reporting them. The testimony of such expert official witnesses should be definite and precise. The judgment of the Court of First Instance is reversed and the accused is absolved. So ordered. Arellano, C. J., Torres, Mapa, and Carson, JJ.,concur.