The United States vs. Dowdell, Jr. and Harn

Malversation of public moneys falls under Article 390 of the Penal Code, not Article 392, where the official appropriates the funds with intent of keeping them and does not return or make good the amount; recovery of the funds by the Government through its own efforts does not qualify the offense or entitle the accused to the benefits of Article 392. The distinction between the two offenses rests on the intention of the official to restore or not to restore the money.

Dowdell and Harn were officers of the Philippines Constabulary, Dowdell serving as supply officer for the Province of Samar and Harn as his subordinate; McIlvane was a friend visiting Harn during the occurrence in question. The charge arose under the Penal Code's provisions on malversation of public moneys, which distinguish between appropriation of public funds with intent to keep them under Article 390 and appropriation that the official is able to make good under Article 392. The case also implicated the Penal Code rules on extenuating and aggravating circumstances affecting the penalty.

Dowdell was supply officer for the Province of Samar in the Philippines Constabulary, Harn was his subordinate, and McIlvane was a friend visiting Harn during the occurrence in question. On January 12, 1907, Dowdell, who had been relieved of his charge and ordered to turn over the property in his hands to his successor, announced to Major Murphy, the senior inspector of Constabulary for Samar, that the safe had disappeared from his office, containing some P6,000 in paper and three or four thousand in coin.

Some days later, at the instance of McIlvane, the safe was fished out of the bay. It contained only two coins of the value of 40 centavos. The sum of P9,971.26, in paper and silver, was found hidden in various places on the premises occupied by Harn and was turned over to the Government.

McIlvane testified that during the week preceding January 12 the three men had been shooting and drinking together and had consumed a great quantity of beer, but at the time of the taking of the money they were all clear-headed enough to know what they were about and to follow out a concerted and intelligent plan of operations. During the early period of their convivialities, Dowdell suggested that it would be well if his "safe and accounts were in the bay." The next day he appeared with a bundle of bank bills wrapped in a newspaper, but the following day returned them to the office. On the succeeding day, the silver was brought to Harn's house, boxed in two oil cases, and the paper money was carried back again to the house by Dowdell that same evening. After dinner, at about 8 o'clock, the three men proceeded to the Constabulary, where Harn left Dowdell and McIlvane, who together lowered the safe into a baroto in which it was taken out into the bay and there thrown into the water.

The money was not returned or made good by the accused. It was recovered by the Government through its own efforts and in spite of the accused's endeavor to the contrary. Every fact pointed to the deliberate and permanent misappropriation of the fund. The moneys, the taking of which constituted the statutory offense, were withdrawn from the treasury during daylight, although the safe was disposed of after nightfall.

• Procedural Due Process: Appellants attacked the procedure in the Court of First Instance, chiefly on the points that the record failed to disclose that the accused had been present throughout the trial or that they had ever been arraigned, or had pleaded; constitutional questions were discussed in the briefs based on these omissions from the imperfect record.
• Recovery of Funds: Appellants contended that the malversation in this case was qualified by the fact that the moneys taken were recovered by the Government.

• Increase of Penalty — Nighttime: The Attorney-General, for the appellee, asked for an increase of the penalty on the ground that the offense was committed by night.
• Remand for New Trial: At one stage of the case in the Supreme Court, the Attorney-General moved that the case be remanded to the Court of First Instance for a new trial on account of the defects disclosed by the record; the motion was denied.

• Procedural Due Process: Whether the conviction should be set aside because the record failed to disclose that the accused had been present throughout the trial, arraigned, or had pleaded.
• Nature of Malversation: Whether the recovery of the moneys by the Government qualified the malversation or brought it under Article 392 rather than Article 390 of the Penal Code.
• Extenuating Circumstance of Drunkenness: Whether the accused's drunkenness should be considered an extenuating circumstance.
• Aggravating Circumstance of Nighttime: Whether the offense was committed by night so as to warrant an increase of the penalty.
• Penalty: Whether the penalty imposed by the trial court should be modified.

• Procedural Due Process: No. The record's omissions were cured by the full return of the proceedings, which showed that each defendant was present throughout his trial, was arraigned, and pleaded not guilty; the constitutional questions based on the imperfect record need not be considered.
• Nature of Malversation: No. Recovery by the Government did not qualify the offense under Article 392; the offense fell under Article 390 because the accused did not return or make good the funds and every fact pointed to deliberate and permanent misappropriation.
• Extenuating Circumstance of Drunkenness: No. The facts did not justify the trial court's consideration of drunkenness as extenuating; there was no such drunkenness as decreased the accused's responsibility for their acts.
• Aggravating Circumstance of Nighttime: No. Although the safe was disposed of after nightfall, the moneys, the taking of which constituted the statutory offense, were withdrawn from the treasury during daylight; nighttime could not increase the penalty.
• Penalty: Guilty of malversation under Article 390 without any extenuating or aggravating circumstance; the penalty was presidio mayor in its medium degree, with imprisonment of eight years and one day, and each appellant to pay one-half of the costs in the Supreme Court.

• Procedural Due Process: The defense attacked the procedure in the Court of First Instance because the record failed to show presence, arraignment, or plea. The Attorney-General moved to remand for a new trial, but the motion was denied. After final argument, the Supreme Court required the clerk of the Court of First Instance to return the full proceedings. The return showed by entries in the minutes that each defendant was present throughout his trial and that all were arraigned and pleaded not guilty. Because the record thus established compliance, the constitutional questions discussed in the briefs, based on omissions from the imperfect record, did not need to be considered.
• Nature of Malversation: The contention that the malversation was qualified by the Government's recovery of the moneys was rejected. First, the money was not returned or made good by the accused so as to entitle them to the benefits of Article 392, had that article been applicable; instead, it was recovered by the Government through its own efforts and in spite of the accused's endeavor to the contrary. Second, the offense did not fall under Article 392, which covers appropriation to one's own use of public moneys which the official is able to make good, but under Article 390, which covers appropriation of public moneys to one's own use with intent of keeping them. The distinction between the two offenses rests on the intention of the official to restore or not to restore the money, as pointed out in The United States vs. Coates. Every fact in the case pointed to deliberate and permanent misappropriation.
• Extenuating Circumstance of Drunkenness: The trial judge considered the drunkenness of the two principal offenders as an extenuating circumstance. The Supreme Court held that the facts did not justify this. There was no such drunkenness as decreased their responsibility for their acts. The evidence showed that during the week preceding January 12 the three men had been shooting and drinking together and consuming a great quantity of beer, but at the time of the taking of the money they were clear-headed enough to know what they were about and to follow out a concerted and intelligent plan of operations.
• Aggravating Circumstance of Nighttime: The Attorney-General asked for an increase of penalty on the ground that the offense was committed by night. The request was denied. Although the safe was disposed of after nightfall, the moneys, the taking of which constituted the statutory offense, were withdrawn from the treasury during daylight. Nighttime therefore did not attend the commission of the statutory offense.
• Penalty: The conclusion was that Dowdell and Harn, who alone appealed, were guilty of malversation of public funds under Article 390 of the Penal Code, without any extenuating or aggravating circumstance. The penalty imposed was presidio mayor in its medium degree, with imprisonment for eight years and one day, one-half of the costs in the Supreme Court to be paid by each appellant, and the judgment of the lower court in other respects affirmed.

• Malversation under Article 390 vs. Article 392 — Article 390 covers appropriation of public moneys to one's own use with intent of keeping them; Article 392 covers appropriation to one's own use of public moneys which the official is able to make good. The distinction rests on the intention of the official to restore or not to restore the money. The Court applied Article 390 because every fact pointed to deliberate and permanent misappropriation.
• Recovery of misappropriated funds — The fact that the moneys were recovered by the Government is of no practical importance where recovery was not by the accused's restitution or making good, but through the Government's own efforts and despite the accused's attempt to prevent recovery. Applied: the offense remained under Article 390.
• Drunkenness as extenuating circumstance — Drunkenness is not a valid extenuating circumstance unless it decreases the accused's responsibility for the acts. Applied: the accused were clear-headed enough to know what they were about and to follow a concerted and intelligent plan, so the trial court erred in considering drunkenness as extenuating.
• Nighttime as aggravating circumstance — Nighttime must attend the commission of the statutory offense. Applied: although the safe was disposed of after nightfall, the moneys, the taking of which constituted the statutory offense, were withdrawn from the treasury during daylight; nighttime could not increase the penalty.
• Record return to establish presence, arraignment, and plea — Where the record was imperfect, the Supreme Court required a full return from the clerk of court; entries in the minutes showed presence, arraignment, and plea of not guilty, rendering constitutional questions unnecessary. Applied: the procedural challenge failed.

• "It is contended that the malversation in this case is qualified by the fact that the moneys taken were recovered by the Government. This incident is of no practical importance for two reasons, first, the money was not returned or made good by the accused, so as to entitle them to the benefits of the provisions of article 392 of the Penal Code, had that article been properly applicable, but was, on the contrary, recovered by the Government through its own efforts and in spite of their endeavor to the contrary, and, second, because their offense does not fall under the said article 392, as appropriation to their own use of public moneys which they were able to make good, but rather under article 390 of the Penal Code, as appropriation of public moneys to their own use with the intent of keeping it." — States the ratio for rejecting recovery as a qualifying circumstance and for classifying the offense under Article 390.
• "The distinction between these two offenses, resting in the intention of the official to restore or not to restore the money, is clearly pointed out in the case of The United States vs. Coates (4 Phil. Rep., 581). Every fact in the present case points to the deliberate and permanent misappropriation of the fund." — Defines the controlling distinction between Articles 390 and 392 and applies it to the facts.
• "In sentencing the two principal offenders, the trial judge took their drunkenness into consideration as an extenuating circumstance. The facts above recited, as we read them in the record, did not justify him in doing so. There was no such drunkenness as decreases their responsibility for their acts." — Rejects drunkenness as an extenuating circumstance on the facts.
• "On the other hand, the Attorney-General asks for an increase of the penalty on the ground that the offense was committed by night. It is impossible to accede to this request, as, although the safe was disposed of after nightfall, the moneys, the taking of which constitutes the statutory offense, were withdrawn from the treasury during daylight." — Rejects nighttime as an aggravating circumstance because the statutory taking occurred during daylight.

• The United States vs. Coates, 4 Phil. Rep., 581 — Cited for the distinction between the offenses under Articles 390 and 392 of the Penal Code, which rests on the intention of the official to restore or not to restore the money; the Court relied on it to classify the offense under Article 390.

• Article 390, Penal Code — Covers appropriation of public moneys to one's own use with intent of keeping them. The Court applied it because every fact pointed to deliberate and permanent misappropriation.
• Article 392, Penal Code — Covers appropriation to one's own use of public moneys which the official is able to make good. The Court held it inapplicable because the accused did not return or make good the funds and the Government recovered them through its own efforts despite the accused's contrary endeavor.

Arellano, C.J.; Torres, J.; Mapa, J.; Carson, J.; and Willard, J., concurred.