Title Seven Revised Penal Code. Crimes Committed by Public Officers
!. Introduction: Although the offenders are principally public officers, there are crimes under this title which may also be committed by private persons by themselves as such, like if the crime of Infidelity in the Custody of a Prisoner and Malversation by a Private person under Article 222. They may also be liable when they conspire with the public officer or when they participate as accomplices or accessories.
II. The term public officer, per article 203, is any person, who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the government, or shall perform in said government or in any of its branches public duties as an employee, agent or subordinate official of any rank or class
A. There is no distinction between a public office and a public employee so long as the person: (i) takes part in performance of public functions or (ii) performs public duties
B. It is not the nature of the appointment which counts but the duties performed. They may be permanent, temporary or casual officers. Hence one appointed as mere laborer but whose function is to sort and file money orders, or emergency helper but whose functions include custody of documents, is a public officer
C. They include members of a special body created by law, to perform a function for the government, as in the Centennial Commission
III. Breach of Office are classified into three forms:
A). Malfeasance- doing an act prohibited by law or that which ought not to be done or not supposed to be done. As in arresting a person who has not committed a crime or spending money under one’s custody
B). misfeasance- the improper or irregular performance of an act which is allowed to be done
C). Nonfeasance- the non performance, failure or refusal to an act which one is required to do
Dereliction of Duty by Officers Related to the Administration of Justice
I. Introduction: The offenses covered by Articles 204 to 209 pertain to acts by Judges, Prosecutors and Lawyers ( who are officers of the Court). They are generally considered as prevaricacion or crimes involving betrayal of trust
II. Dereliction by Judges ( Articles 204 t0 207)
A. The Judges referred to are Trial Court Judges and not to Judges of Collegial or Appellate Courts
“ (It) has no application to members of collegial courts such as the Sandiganbayan or its divisions, who reach their decision in consultation and accordingly render their collective judgment after due deliberation” ( Cortes vs. Chico-Nazario 422 SCRA 541)
B. Rendering an Unjust Judgment i.e one which is not in accordance with the law and the evidence:
1. Knowingly or Intentionally – (i). the intention is to favor a party or to cause damage to another; or rendered due to ill will, spite, revenge, or other personal ill motive, but not through bribery (ii). It is not the fact that the decision was reversed on appeal which brings about the crime but proof of the ill motive.
2. Rendered through negligence which is manifest or inexcusable, or through ignorance. Example: applying a law which has been repealed or a decision which has been reversed. Judges are required to keep abreast of latest developments in the law and in jurisprudence.
C. Rendering an Unjust Interlocutory Order either knowingly/intentionally or through inexcusable negligence or ignorance.
1. An interlocutory order is one which decides on an issue related to the case but does not decide the case on the merit or on the evidence
2. Example: granting bail to a non-bailable offense;
D. Delay in the Administration of Justice
1. This must be malicious or that there is an intent to cause damage or injury to any of the parties
2. Example: delay in the calendaring or cases; frequent grant of postponements, delaying the decision or failure to render the decision within the time allowed by law
E. However, before a Judge can be charged for Rendering an Unjust Judgment or Unjust Interlocutory Order, there must be a “ final and authoritative judicial declaration that the decision or order in question is indeed unjust.” The pronouncement may result from either:
1. An action for Certiorari or prohibition in the higher court impugning the validity of the judgment or
2. An administrative proceeding in the Supreme Court against the judge precisely for promulgating an unjust judgment or order ( Joaquin vs. Borromeo, 241 SCRA 248)
III. Dereliction or Prevaricacion (Betrayal of Trust) by Prosecutors under Article 208
A. Article 208 embraces all public officers whose official duties involve the initiation of prosecution for the punishment of law violators. They include:
1. Prosecutors and their assistants
2. BIR agents who fail to report violations of the NIRC
3. Forestry Agents who fail to apprehend and file charges against illegal loggers
4. Chiefs of Police in municipalities who are by law allowed to appear as prosecutors in the MTC/MCTC in the absence of regular Prosecutors
5. Barangay Captains
B. The essence of dereliction is that the public officer knows of the commission of an offense but :
1. He does not cause the prosecution thereof i.e to gather evidence and then file the appropriate charges
2. He tolerates the commission thereof. Note: if n case of an illegal numbers game, the offense would be under RA. 9286
C. The crime committed by the law violator must first be proved as basis fro conviction for dereliction.
D. Query: May policemen or law enforcement agents be held liable if they see a crime but do not arrest the criminal or do not investigate, gather evidence and charge the criminal?
1. The view is that they are not liable under Article 208 but they are to be held as accessories under Article 19 i.e assisting in the escape of the principal, or that they may be liable under the Anti-Graft and Corrupt Practices Act; or under PD. 1829 for obstruction of justice .
2. Personal view: If the offense by the criminal is punished by a special law, where there are no accomplices or accessories, the charge should be under Article 208. The same should be true in case the offense tolerated is a light felony
IV. Dereliction by An Attorney: Betrayal of Trust Under Article 209.
A. The prevaricacion includes:
1. Causing prejudice to the client through malicious breach of professional duty or inexcusable negligence. There must be damage to the client. Examples: failure to pay the appeal fee or to file an Answer or to submit a Formal Offer of Evidence
2. Revealing the Secrets of a Client learned by him in his professional duty. (Note: This is the second offense involving disclosure of secrets). Secrets are to be construed as including the lawyer’s advise; papers, documents and objects delivered by the client; the lawyer’s impressions of the client
3. Representing the opposing party without the consent of the client
B. The crime is without prejudice to the administrative liability of the attorney
Art. 210. BRIBERY
I. Introduction: Bribery connotes the idea of a public officer utilizing the power, influence or prestige of his office for the benefit of an individual in exchange for a consideration. The offense can not be considered bribery if there is no consideration but the act may be considered as a violation of the Anti Graft and Corrupt Practices Act .
II. The two forms:
1. Simple Bribery which is either : (a). Direct (b) Indirect
2. Qualified Bribery
III. Direct Bribery: defined and penalized under Article 310. Its elements are as follows:
1. That the accused is a public officer
2. That he received directly or through another, some gift or present, offer or promise
3. That such gift, present offer or promise has been given in consideration of his commission of some crime, or any act not consisting a crime, or to refrain from doing something which it is his official duty to do
4. That the crime or act relates to the exercise of his functions as a public officer
IV. There are three modes of commission of direct bribery and which is the basis for the penalty to be imposed:
A. First Mode: requires that the act involved amounted to a crime. Example: Falsification and destruction of papers, records and properties, killing of inmates, robbery and taking of money or valuables, invalid arrests, releasing of persons detained
1. Three instances when it is consumated:
a). The act agreed upon was not yet performed but a consideration has already been received
b). The act was executed even if the consideration has not yet been received
c). The act was executed and the consideration has been received
d). Conspiracy to Commit Bribery: If the officer merely agreed but did not actually do the act and he did not yet receive nor was given the consideration, there is also the crime of bribery. This is in the nature of a conspiracy which is punished
2. This has no frustrated or attempted stage since the mere agreement consummates the crime
3. If the act constituting a crime was committed, the officer is liable for bribery and for the additional crime so committed. The bribe giver will also be liable for the crime. Bribery is never absorbed or complexed but is always punished separately. But in the crime of Delivering Prisoners bribery constitutes a qualifying aggravating circumstance
4. Example: The Jail Guard agreed with Mr. BB to kill X, an inmate, in exchange for money. The crime is committed if (i) he has already received the money but was arrested before he can kill X (ii) he killed X but Mr. BB failed to give the money and (iii) He killed X and was paid either before or after the killing. In the second and third instance, the officer and Mr. BB are liable also for murder/homicide for the killing.
B. Second Mode: The act is not a crime but is unjust or the doing is improper or unfair
1. The act done is within the proper functions or duties or the public officer. Hence to constitute bribery, the consideration must be actually received. Future promises or offers or consideration to be given after the doing, such as reward, do not give rise to bribery.
2. If the officer performed the act regularly, properly, or in accordance with law, he is not liable even if he already received the consideration
3. If the act was done improperly without any consideration, the officer is not liable for bribery but he may be:
(a). Administratively liable
(b). Liable under the Anti Graft and Corrupt Practices Act
4. If the officer received the consideration but he did not do the act as agreed upon, he may be sued for the recovery of the consideration and for estafa by means of deceit
5. There are only two stages: (i) attempted when the officer agreed to do the act for a consideration and received the consideration but was not able to perform the act and (ii) consummated when the act was executed and the officer received the consideration.
(a). For money received, the Court sheriff delayed the service of summons to the defendant or that he did not immediately serve the writ of execution until the defendant has sold his properties.
(b) The complainant paid the policeman to serve the warrant of arrest of the accused on Saturday so that the accused will not be able to post bail. The police however served the warrant on Friday allowing the accused the accused to post bail. The police is not liable for bribery but the bribe giver is liable for attempted corruption. But he may file a case to recover the money.
(c). The police received the money but when he went to arrest on a Friday night, the accused had already posted bail that morning. He is liable for consummated bribery even if the purpose was not achieved.
(d). NBI agents learned the money will be given on Friday morning. When the money was given the NBI agents who were waiting, arrested both the giver and the police. Did the policeman commit direct bribery?
(e). Receiving money to give preference to a late application over others earlier submitted
C. Third Mode: There is non-performance of an official duty due to a consideration provided the non-performance does not amount to a crime. If so it is bribery of the first mode.
a). A stenographer received money such that she did not record the testimony.
b). For money received, the clerk did not include the case in the court calendar or that he did not send the required notices to witnesses.
c). Omission to accept and/or record a pleading filed
V. Common Principles:
A. 1. The accused in the direct bribery case is the public officer only. The bribe giver will be punished for Corruption of a Public Officer.
2. Private persons are liable if they are performing public functions such as assessors, arbitrators, appraisers and claim commissioners. These private persons are usually designated and/or directed by the court to perform these functions as part of pending proceedings, and to submit their findings to the court.
B. The act or omission must be in relation to the officer’s duties or functions otherwise the crime would be estafa
C. The consideration need not be in terms of money, or articles of value so long as it has a pecuniary value. This is because the penalty of fine is based on the value of the consideation given. Those in the form of favors or service or non-material considerations may induced a public official to do any of the act contemplated by law. However there is the question of determining the value as basis for the fine.
The consideration may be given to the officer directly or to members of his family or persons closely associated with the officer.
1.Examples of Consideration in the form of services: the employment or promotion of a family member in a certain company; or the giving of a contract to the company of the wife; or that the private person will shoulder the expenses of the birthday party of the officer’s son
2. The borrowing of a vehicle by the LTO Director from a transportation company can be considered as a gift in contemplation of law ( Garcia vs. Sandiganbayan 507 SCRA 258)
D. The giving of the consideration must be mutual, either at the suggestion of the briber giver or upon the solicitation of the officer.
1. If it was the officer who solicited but the private person reported it leading to an entrapment and the subsequent arrest of the officer, the crime is merely attempted bribery.
2. If it was the private person who voluntarily gave but the officer used the consideration as evidence, it is Attempted Corruption of a Public Officer
E. If the private person was compelled to agree to give a consideration due to force, threat or intimidation on the part of the officer, the act is called extortion or mulcting but the proper name of the offense is robbery
F. If a person gives money to a public officer as consideration for the officer to do or not to do his duty for the benefit of the person, when will the receipt constitute robbery and when will it be bribery?
1. If the money was given willingly at the instance of the giver, it is bribery
2. If he was forced to give it is robbery
3. If the giver committed a crime and at his own instance he gives money so as to avoid arrest and prosecution, the receipt thereof would be bribery.
4. If the giver is a family member of a person arrested and was prevailed upon to give so that the case against the relative will not push through, or will be down-graded, the demand and receipt of consideration is robbery.
5. If the giver committed a crime and it was the officer who suggested the giving of money to avoid arrest, it is bribery so long as the person did so voluntarily but if he was forced to give, then it is robbery. Thus if the person was unwilling to give but he pretended to give but reported instead to the authorities who set up an entrapment, the crime of the officer is attempted robbery
6. If the person did not commit a crime but the officer insist and pretend there was a crime and threatens to arrests unless money is given, then the receipt thereof is robbery.
Art. 211. INDIRECT BRIBERY
I. Concept: the crime committed by a public officer who accepts a gift given by reason of his office or position. A gift is actually received and not future promises or offers. The officer must have done an act appropriating the gift for himself, his family or employees. “ The essential ingredient … is that the public officer concerned must have accepted the gift or material consideration ( Garcia vs. Sandiganbayan 507 SCRA 258)
1. An envelope was left on top of the desk of officer. The officer called his staff and told them to use all the amount to buy food and snacks. This is indirect bribery
2. If the officer however gave it to the Jail or to some children, he is not liable
3. If he simply let the envelope drop on the floor and left it there, he is not liable.
4. If somebody pays the bill for his meal or drinks, he is not liable for indirect bribery as he did not accept any gift.
5. Receipt of cash given as “share in winnings” or “balato” are included
II. The phrase “by reason of his office” means the gift would not have been given were it not for the fact that the receiver is a public officer. The officer need not do any act as the gift is either for past favors or to anticipate future favors, or simply to “impress” or earn the good will of the officer
Art. 211-A. QUALIFIED BRIBERY
I. Concept: the crime committed by any public officer who is entrusted with the law enforcement and he refrains from arresting or prosecuting an offender who ahs committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present.
A. The offenders are limited to officers entrusted with law enforcement such as members of the regular law enforcement agencies, as well as those tasked to enforce special laws, and Prosecutors. This is similar to prevarication under Article 208 but the offense involved here which the officer refused to prosecute are graver being punished by reclusion perpetua or death
B. Actual receipt of consideration is not necessary.
C. The penalty for the officer is that for the offense he did not prosecute. But if it was the officer who solicited the gift, the penalty is death. However, the guilt of the person who was not prosecuted must first be proven.
D. Query: (a). what crime was committed by a law enforcement agent who refused to arrest a rapist or murderer? (Ans). If it was because of a consideration the crime is qualified bribery. If there was no consideration he is an accessory to the crime
(b) Suppose it was a drug pusher who was refused to be arrested? (ans). Qualified bribery if there was a consideration. If there was none it should be Violation of Article 208 because there are no accessories in the offense of drug pushing
ART. 212. CORRUPTION OF PUBLIC OFFICIALS
1. Concept: This is the crime committed by the bribe giver, promissory or offeror.
II. It has only two stages: attempted if the gift, offer or promise was rejected and consummated if the same was accepted.
III. This is in addition to his liability if the act done by the officer is a crime in which case he is a principal by inducement. .
LAWS RELATED TO CRIMES BY PUBLIC OFFICERS
I. R.A. 7080: Defining and Penalizing the Crime Known as Plunder
1. Plunder is the act of accumulating or acquiring ill-gotten wealth in an aggregate amount of at least P50 million, personally or in connivance with third persons
2. The accumulation must be through a combination or series of overt acts, a pattern indicative of the over all unlawful scheme or conspiracy
3. The penalty is reclusion perpetua to death
4. For non-public officers their liability will depend on their degree of participation and the attendance of mitigating and aggravating circumstances
II. R.A 3019 or The Anti Graft and Corrupt Practices Act
A. Introduction: This was enacted to fortify the principle that public office is a public trust. Also the provisions of the Revised penal Code is inadequate to cover all situations and acts whereby a public officer performs an act inimical to public service. Some fo the salient features are summarized below.
B. There are eleven acts enumerated as constituting corrupt practices, some of which repeat provisions of the Revised Penal Code, which acts or omissions therefore remain still to be mala inse. Those which are not defined in the Revised Penal Code are acts mala prohibita .
1. These eleven acts include the following:
a. Those which involve the receipt of material consideration
b. Those where, even if there was no consideration, the public officer uses the ascendancy, influence or prestige of his office to influence any course of action pertaining to the government either for himself, a relative or influence ( Influence Peddling), or where the government stands to be prejudiced
c. Acts constituting an improper exercise of duties especially in the granting of permits and licenses
d. Acts by private individuals, especially relatives of the officer or close associates who take advantage of such relationship or connection with any business in which the public officer has to intervene
e. Acts which are improper for an officer to do such as non-payment of a debt
C. Periodic Submission of a Statement of Assets and Liabilities
D. Defines Unexplained wealth as property manifestly out of proportion to the income of a public officer.
1. Possession of unexplained wealth is a ground for removal or dismissal
2. It is a prima facie evidence of corruption
3. Prosecution for unexplained wealth is an exception to the Secrecy of Bank Deposits
E. Section 13 of the law Provides for Suspension Pendente Lite of the accused public officer
1. After an Information is filed in Court for : (a) Violation of R.A. 3019 or (b) under Title 7 of the RPC i.e. Crimes Committed by Public Officers or (c) for any offense involving fraud upon government or public funds, the officer shall suspended from office.
2. The suspension applies to any office which the officer charged might be holding and not necessarily the particular office under which he was charged or under which the act was committed.
3. The crimes maybe simple or complex with another, whether attempted or frustrated and even if the officer’s participation is as an accomplice or accessory only.
4. The period was formerly for the whole duration of the trial but the period has been fixed to be the same period as that provided for under the Civil Service Law which is 90 days and which likewise is the period provided for under Section 52 of the Administrative Code fo1987.
Example: In Nicart vs. Sandiganbayan ( 495 SCRA 73) a Mayor was charged for Malversation before the Sandiganbayan and was imposed a 90 day preventive suspension. He argued that malversation is not covered by the Anti Graft law and he should not be suspended and even then the period should be only 60 days pursuant to section 63 of the Local Government Code. HELD: Malversation is an offense involving fraud against the government funds and is clearly included among the crimes covered by RA 3019. Section 13 of said law provides a suspension for which the period is 90 days pursuant to existing jurisprudence, notably Segovia vs. Sandiganbayan (288 SCRA 328, March 27, 1998)
Note that under the PNP Law ( RA 6975) when a PNP member is charged with a grave offense where the penalty prescribed is 6 years and 1 day or more, he shall be suspended from office to last until the termination of the case ( Himagan vs. PP, 237 SCRA 538)
3. The Suspension is Mandatory But Not Automatic
(a). Mandatory in that the officer must be suspended whatever be his position.
(b). However the suspension is not automatic because before the Court ( note: only the Court may order the suspension) there must first be a Motion to Suspend and if the officer does not voluntarily place himself under suspension but contests the Motion, then there must be “Pre Suspension Hearing “ to determine the following: (i) The validity of the Information (ii) If the accused was afforded the right to a Preliminary Investigation (iii) If there is a ground to Quash the Information (iv) If the offense charged is a Violation of Title 7 of the Revised penal Code or is covered by the AGCPA. It is only then that the Court issues an Order placing the accused under suspension
© However, if the accused had ample opportunity to be heard on the Prosecution’s Motion fro Suspension Pendenti Lite and were allowed to file their comment or opposition thereto, and agreed to submit the Motion for Resolution upon submission of their comment/opposition, there was no more need to set the motion to Suspend for hearing on a specific time and date. ( Bedrey vs. Sandiganbayan, 477 SCRA 286)
F. Effect of Conviction - Loss of retirement or gratuity benefits. In case of acquittal- reinstatement plus payment of back salaries unless in the meantime the officer has been administratively
G. A public officer maybe charged under R.A. 3019 and under the Revised Penal Code for the same offense (Ramiscal vs. Sandiganbayan 499 SCRA 75)
H. Jurisdiction over the offense is with the Sandiganbayan for those public officers occupying a salary grade of 26 or higher
Art. 213. Frauds Against the Public Treasury and Similar Offenses
A. Concept: The violations punished are equivalent to cheating the public treasury. There are two kinds of frauds punished.
B. Fraud under Paragraph 1: punishes any public officer who in his official capacity enters into an agreement or scheme to defraud the government. It does not matter that the government was not damaged as mere intent to defraud consummates the crime.
1. Usually, when in connivance with suppliers, the government is made to pay for more than what it has received; or there is overpricing; or paying for poor quality of articles or supplies; or for double payment; or paying for “ghost deliveries”
2. Also making the government refund more than what it has to refund
3.There must however be no fixed amount which was set aside or appropriated before hand to be spend or to cover the purchase. Thus if the sum of P100,000.00 was set aside to purchase five computers, even if said computers are of poor quality and are worth only P75,000.00, there is no Fraud against the treasury. But if the officer presents a bill of P100,000.00 to pay for five computers and which amount was given, when in truth the computers are worth only P75,000.00, then this crime is committed.
C. Illegal Exaction Under paragraph 2
1. The offender is limited to those public officers entrusted with the collection of taxes, licenses fees and other imposts. He is thus an accountable public officer If otherwise, the crime would be estafa. However officers under the BIR and BoC are covered by the NIRC and Customs Code or the Administrative Code.
2. There is no need for misappropriation of funds or intent to defraud because the essence of the crime is the improper or irregular manner of the collection.
3. The acts are:
a). Demanding the payment of sums different from or larger than those authorized by law.
(i). Here mere demand is sufficient even if the payer refused to come across. If he pockets the excess he commits estafa through illegal exaction
(ii). Suppose the payor allows him to keep the change and the officer did not turn it over to the government, he commits malversation. It is to the government that the change must go as an accretion of the amount due ( Principle of Accretion) .
(iii). Suppose the officer demands P1,000.00 when the amount due is only P700.00. He spent the entire P1,000.00. He is guilty of illegal exaction (for demanding a different amount) Estafa for spending the excess of P300.00 and malversation as to the amount of P7000.00 which is government funds
b). Failing to voluntarily issue an official receipt for the money collected. The crime is committed if what are issued are only provisional receipt
c). Collecting or receiving by way of payment or otherwise, things or objects of a nature different from that provided by law.
(i). Payments are to be in the form of cash or the payor’s personal check. It does not matter that the object has a higher value than what is due.
Art. 214. Other Frauds.
A. Concept: This article does not punish any offense. What is provided is the additional penalty of special disqualification upon a public officer who commits estafa by taking advantage of his official position.
B. Examples: The Judge entices an accused to hand to him money which the Judge will post as cash bond but he spends it. The head of Office, who collects contributions from his employees to purchase for supplies, but spends the money for himself, if found guilty, would be imposed this additional penalty.
Art. 215. Prohibited Transactions
A. Concept: This prohibits any appointive official who during his incumbency from becoming interested in any transaction of exchange or speculation within his territorial jurisdiction. This is to prevent him form using his influence in his favor
B. Example: A judge is not to participate in an execution sale
Art. 216: Possession of Prohibited Interest.
A. Concept: This punishes the act of becoming interested or participating by a public officer virtute officii in any contract in which it is his official duty to intervene. Actual fraud is not necessary but the act is punished to prevent the possibility that the officer may commit fraud or places his interest over that of the government.
B. Hence if he participated in his private capacity he is not liable. Example: The Director of the DSWD assumed the mortgage executed in favor of a creditor. He did so as a private businessman. He is not liable.
C. Example: The City is need of a building to rent. The mayor approved the contract of lease with the ABC corporation, owner of the building, but he is a director of said company.
MALVERSATION OF PUBLIC FUNDS
Classified into (1) Ordinary and Technical and (2) Intentional or culpable
Art. 217. Simple or Ordinary
1. The offender is a public accountable officer
2. He has custody or control of funds or property by reason of the duties of his office
3. The funds or property are public funds or property for which he was accountable
4. He appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them
B. By whom committed:
1. Primarily only by an accountable public officer: one who has charge of public funds or properties and is answerable therefore. If he takes property over which another officer is accountable, he is guilty of theft
a). By reason of the functions of his office in that his primary functions pertain to the receipt, care and custody of funds or property. Examples: treasurers, cashiers, disbursing officers; Property Custodians, Clerks of Court, BIR/Customs Collectors; Evidence Custodians. Also a policeman who confiscates contrabands or prohibited articles from persons arrested. Policemen in custody of articles seized by virtue of a search warrant
b). By reason of special designation or by reason of the fact that public funds or properties are entrusted to him by his superior. Example: an employee is tasked to get the salaries of the employees; or supplies are entrusted to a teacher for delivery to the school; or medical supplies are sent to a municipality through the councilor.
2. By a private person :
a). Through conspiracy with the public officer
b). As an accomplice or accessory
c). Under Article 222 when he has charge of public funds or property or is the depository or administrator of funds seized, attached or deposited by public authority
(i). Forest Rangers seized several logs. The DENR Director deposited them with Mr. X whom he also appointed to be the custodian until the DENR can get trucks to transport the logs. If Mr. X uses the logs as firewood he is liable f or malversation
(ii). The Sheriff deposited several household items which he attached from the defendant. These were asked to be safe kept in the garage of Y who consented to be the custodian. The articles were stolen because Y went on a vacation without taking measures against theft. He is liable.
C. Property Subject of the crime
1. Public properties
a). Strictly public properties – those owned by the government or by the local government units such as office equipments and supplies; guns and bullets issued to the AFP or PNP members; vehicles and modes of transportations issued to a public office; money paid or received as taxes, fines, payments, donations, or income or cash in the public coffers.
(i). thus a policeman who goes on AWOL without returning his firearm is liable for malversation
(ii). a driver who sells off the gasoline of the vehicle assigned to him as public transport is guilty of malversation
(iii). the pharmacists of the government hospital who secretly sells the medicines commits this crime
1. Private properties:
a). If held in trust by a public office i.e. he has the duty to account of the property, often referred to as “Trust Funds or Trust Properties”
(i). Money deposited by a party in court as cash bail bonds or redemption price
(ii). Private property deposited in court provided they have not been marked yet as evidence; or when they are ordered o be returned to the owner as evidence
(iii). Property under attachment
(iv). Proceeds of a sweepstake ticket entrusted to a sales agent
(v). Articles the possession of which is prohibited, except for dangerous drugs, or the effects or instruments of a crime in the possession of a policeman
b). Property in custody of a public office for a public purpose i.e private properties impressed with public character
(i) Example: The sheriff who conducted an execution sale spent part of the money realized from the sale instead of turning it over to the plaintiff. He is liable for malversation because the proceeds are impressed with the character of public funds.
(ii). Example: Blood kept by the Phil. National Red Cross
c). Private property considered as public by reason of the (i). Principle of Co-mingling in that all funds commingled with public funds or found in public vaults, are presumed to be public funds/property and (ii) The Principle of Accretion
d). Private properties which were confiscated or seized even if deposited with a private person
D. Acts of Malversation: How Committed
1. Intentional Acts:
(a). By appropriating: when the officer himself takes the property for his own use or that of his family or that of a third person
(i). Thus loose changes taken by the officer constitute malversation as the loose changes properly belong to the government.
(ii). Likewise, a collector who brings home funds or property and forgot to bring them to his office, and is therefore found short by said amount, is guilty of malversation.
(b). By misappropriating: the officer uses them for a different purpose even if a public purpose but is not authorized to do so
(i). Thus a cashier who uses his collections to change the personal checks on employees, even at a discount, and even if the checks are good, is guilty of malversation. During the period of time the check is undergoing clearing by the back, the government is already deprived of the use of the funds.
2. By abandonment or through negligence ( culpable malversation)
(a). The custodian is expected to exercise utmost diligence and care to prevent the public funds/properties under his custody from being lost, destroyed, damaged, either by action of nature or by the acts of people. When these eventualities occur due to his failure to take precautions or exercise care, then he becomes liable.
(bi). If the funds were lost or destroyed the officer must make a prompt report and prove the loss or destruction was not due to his fault or negligence
©. Thus the officer is liable even if it was a third person who took and appropriated the property
E. Penalty: The penalty depends on the amount of the fund or property involved
1. The Penalty is the same whether the malversation is intentional or through negligence. This is the exception to the rule that the penalty for a crime is lower if committed through negligence
2.The accused may be convicted of for culpable malversation under an Information which charges intentional malversation without need of amending the original Information. This is because culpable malversation is included in intentional malversation and because the penalty is the same whether it was committed intentionally or through negligence. ( PP. vs. Ting Lan 475 SCRA 248)
F. Presumption of Malversation: when there is a formal demand upon the accountable officer to produce funds or properties in his custody and he fails to produce them, his failure to do so shall be prima facie evidence that he put the missing funds to his personal use.
1. For purposes of conviction, it is not necessary that there be direct proof that the officer used the funds to his personal use.
2. The presumption applies only if (i) there is proof of shortage and the amount which is claimed to be missing is certain, and definite and after an audit which is thorough, complete to the last detail and reliable ( Dumagat vs. Sandiganbayan, 160 SCRA 483) and (ii) the failure to produce is unexplained.
3. The presumption is rebuttable hence if the accused was able to prove the missing funds were not used by him personally, as when the missing funds were given to employees as ”vales”, the burden is upon the prosecution to prove the misappropriation
G. Effect of Restitution or Replacement of the Missing Fund/Property
Note that the accused incurs a criminal liability and is also civilly liable to the government for the missing fund or property, thus:
1. If made before the shortage is recorded: there is no criminal liability because officially there is as yet no shortage
2. If made Upon discovery and recording: the criminal liability remains but this may be considered as mitigating but the civil liability may be extinguished
3. If after the lapse if time: the replacement or restitution has not effect on the criminal liability what so ever
H. If there is falsification:
1. The falsification must not be to hide the malversation else it is a separate offense
2. As to the liability of heads of office who sign or approve vouchers or documents containing falsifies, see Arias and Rodis doctrine
I. Distinguished from Estafa:
1.As to the nature of the property involved: in estafa only private properties are involved.
2.As to the character of the accused: in malversation he must be the custodian or is accountable over the property involved.
3. As to the need for a prior demand: malversation does not require a prior demand
4.As to the requirement of damage: there need not be damage to the government in malversation
Art. 220. Technical Malversation
Concept: This is often referred to as “Juggling of Funds” or “Realignment of Funds”. This is the crime committed by a public officer who used or applied funds earmarked or appropriated for a specific public purpose, for another public purpose.
1. The funds involved should have been reserved by an appropriation ordinance for a specific public purpose.
2. If the fund were not yet earmarked for a specific public purpose, such as the general fund, the crime is ordinary malversation
3. If the funds earmarked for a public purpose were used for a private purpose, the crime is ordinary malversation
4. It is immaterial that the other pubic use is more beneficial to the public.
5. The reason is that no public fund or property shall be spend except pursuant to an appropriation or purpose specified by law
Other Offenses Related to Public Funds
1. Failure of Accountable to Render Accounts (Article 218)
a). The accused is an accountable officer and this includes those who may have already been separated from the service
b). This is a crime by omission. The gist of the offense is the failure to render ran accounting to the COA within 2 months after the accounting should have been rendered as required by law or regulation.
2. Failure of a Responsible Officer to Render Accounts Before Leaving Country ( Article 219)
a). The gist is failure to obtain a certificate of clearance from the proper officer for his pending accounts before leaving the country
b). This applies to all officers who have accounts to settle
3. Failure to make Delivery of Public Funds or Property (Art. 221)
a). The officer is obligated to make payments, or was ordered by competent authority to deliver property from out of his custody but he refuses to do so
b). The refusal is malicious and must have resulted in damage to public interest
(iii). Ex: (i). The Treasurer refuses to give the salary of an employee out of spite; (ii) or refuses to give the payment for the purchase of equipments on the ground the equipments are unnecessary (ii) Property Custodian who refuses to deliver a type writer to a secretary because the secretary is inept at typing
INFIDELITIES BY A PUBLIC OFFICER
A. Concept: These offenses involve unfaithfulness in the performance of duties amounting to a violation of the public trust and confidence reposed in the officer.
B. Kinds: (1) In the Custody of Prisoners (2) In the Custody of Documents and (3) In the keeping of Secrets
Infidelity in the Custody of Prisoners
(Articles 223 t0 225)
A. Concept: The crime refers to the act of a custodian of a prisoner in allowing or permitting the prisoner to escape. This may be intentionally or by his negligence
B. Basis of the Penalty: (i) The public or private character of the person (ii) The status of the prisoner who escaped and (iii) the circumstances under which the escape was made
C. Persons liable:
1. A Public officer whose function or duty consists primarily of taking custody of prisoners such as personnel of the BJMP. At the time of the escape, the personnel must be on duty otherwise his liability is for Delivering Prisoners from Jail
2. A Private person pursuant to Article 225 to whom the conveyance or custody of a prisoner person or person under arrest was made
a). With respect to public officials, the person who escaped must be a prisoner where as in infidelity by a private person, the individual may simply be a “person in arrest” i.e one who has been lawfully arrested either with or without a warrant
b). If he lets go the prisoner due to a consideration he is liable also for bribery
c). Examples: (i) The escort handcuffed his prisoner to a jeepney asking the driver to watch over the prisoner because the escort went to help a blind man cross the street. The driver removed the handcuffs when the wife of the prisoner paid him. He is liable for infidelity and bribery (ii) A policeman arrested a robber whom he entrusted to X as the policeman still had to chase the other robbers. X let the robber go. X committed infidelity
D. Meaning of Prisoner: The term prisoner refers to:
1. Prisoner by final judgment or mere detention prisoner
2. As to persons “under arrest” they are not yet prisoners until they have already been “booked” i.e fingerprinted, photographed, and placed in the gaol. This is true even if they already are in the police station and detained in the interrogation room. However if they were entrusted to private persons who let them escape, infidelity is committed.
3. Persons placed in jail only for “safe keeping purposes”, such as drunks, are not prisoners.
E. Meaning of “Escape”
1. The act of running away or permitting the prisoner to leave
2. The giving of preferential or special treatment or unjustifiable leniency to enable him to avoid the rigors resulting from his imprisonment. Examples : (a) As allowing the prisoner to eat or sleep in the house of the guard or warden (b). Allowing him to repair his cell and convert it into a luxurious room
F. Kinds of Infidelity
1. Conniving with or consenting to the escape
a). This is committed by intentionally allowing a prisoner to escape either by active participation, such as providing him with the means to escape or simply letting him go, or by doing nothing to prevent his escape
b). If the custodian was bribed, there are two separate offenses
2. Through negligence which includes:
a). Failure to take precautionary measures to prevent the escape such as by not checking on whether the facilities permits a escape; not checking on visitors who may bring in tools with which to escape;
b). Becoming too familiar and friendly with the prisoners resulting to decrease in vigilance
c). Laxity in escorting the prisoner or permitting him to go to places where he is not supposed to be brought, such as a restaurant
d) There is no distinction between negligence which results merely to an administrative liability and that which amounts to a willful non-performance of duty
Query: If a prisoner escapes with the assistance of another, what are the respective criminal liabilities of: (a) the prisoner (b) the person who helped him escape?
Infidelity in the Custody of Documents
1. Through removal, concealment or destruction(Art. 226)
2. By Breaking the /seal (Art. 227)
3. By opening of closed documents ( Art. 228)
Art. 226. Removal, Concealment and Destruction
.A. Persons principally liable:
1. Public officers
(a) Those who are officially entrusted with the custody of documents it being their function to take care of documents , such as:
a). The Clerk of Court as regards the records of cases
b). The Post Master as to mail matters
c). The Local Civil Registrar
d). The Register of Deeds or The Assessor
e). The Election Registrar
(b). or officers who are specially entrusted by their superior officers or by competent authority, with the care and custody of certain documents even if their primary functions do not pertain to the keeping of documents
Note: If the officer is not the custodian the crime is different i.e theft if he abstracts or takes the documents; malicious mischief or estafa if he destroys or conceals
2. Private persons who conspire or who participate as an accomplice or accessory
B. Meaning of Document: They refer to written instruments which maybe subject to the crime of falsification
1. Those which are purely public or official documents such as records of birth, titles to land; records of court cases; official communications; payrolls, time records
2. Commercial Papers such as notes, checks, money bills
3. Private documents entrusted to public officials by reason of their office as for example: (a). Letters sent through the mail (b). But not packages, pamphlets, books, periodicals or parcel sent though the mail
4. When is the crime malversation and when it is infidelity:
a). When money, objects, or articles are in the possession of an accountable officer, any act of appropriation/misappropriation or loss or destruction will constitute malversation.
b). But when these money, articles or objects had already been marked in court as Exhibits, they ceased to be properties and become documents ( note that they are referred to as documentary exhibits) so that their appropriation, misappropriation or loss, constitutes infidelity in the custody of documents.
c). But when the trial is over and these articles are ordered to be returned to their owners/possessors, such as in crimes against property, they revert to being properties. Hence any act of appropriation/misappropriation will be malversation.
C. Acts Punished:
1. By abstracting or removal:
a). the crime is consumated the moment the document or paper is removed or taken out from its usual place in the office. It need not be brought out from the building such as when it is transferred to another room or place where it is not supposed to be kept
b). The removal must be for an illicit purpose such as to tamper with it, to profit from it or even to keep it away from the eyes or knowledge of the public, or to show it to the media
C) Hence there is no infidelity if the removal is to safe keep the document or to protect it form loss or destruction
d) Examples of removal:
(i). When the Postmaster opens a letter and takes the money inside or the letter for transmission contains Postal Money Orders which he removes an encashed. But if they are the mail/letter carriers who take the money, the crime is qualified theft
(ii). But when he received the money order itself - not the letter, which he then signed as payee, collected and spent the amount, he is guilty of malversation through falsification.
(iii). When the records officer transfers the folder of a case from the records section to the library and it can not be located when a party comes to xerox copies
(iii) A secretary who brings home the folder or record in order to study it is not liable as the purpose is not illicit
(iv) Misdelivery of mail matters to third persons is removal
e) Actual damage to the public is not necessary as delay in the production of the document is sufficient, as is alarm to the public or loss of confidence in government service
2. By Destroying as in the act of a letter carrier who burned the mail
3. By concealing: This includes acts of hiding or making unavailable the documents to authorized persons for their inspection, reading, copying or for their own knowledge. This will not apply if the documents or papers are confidential in nature, such as the records of a Youthful Offender who has been acquitted.
Art. 227. By Breaking the Seal
A. Concept; It is the crime committed by a public officer, charged with the custody of papers or documents, who breaks the seal placed thereon by proper authorities on the documents or permits the seal to be broken. The gist is the fact of breaking the seal even if the contents are not tampered with.
B. Example: Destroying the seal placed on ballot Boxes
Art. 228. Opening of Closed Documents.
A. Concept: The crime committed by a public officer who has custody of closed documents, papers or objects, who opens or permits to be opened the closed papers, documents or objects without nay proper authority to do so.
B. Examples: (i). Closed envelopes containing election returns (ii). Communications in closed envelopes or folders hand carried by personnel officers to Manila.
Revelation of Secrets.
( Secrets refer to any data or information which is not supposed to be publicized or known without prior approval of the proper officer)
A. First Kind: Revelation of Secrets Interest by an Officer Under Art. 229
1. The Secrets refer to those affecting public interest of minor consequence which are not punished by any other provision of law
2. These secrets must be known to him virtute officii
3. If the accused is a private person, the crime would be under the article on Unlawful Means of Publication
4. Damage to public interest is not required
5. This articled is violated in two ways: (a) by the actual revelation of secrets or (b) wrongful delivery of papers or copies of papers the contents of which should not be known
6. Examples: (a) the Secretary who reveals the decision of the Court/Quasi-Judicial/Administrative body prior to its promulgation (b) personnel who informs an applicant of the who has been appointed (c) a prosecutor who reveals the evidence to be presented to court
B. Second Kind: Public Officer Revealing Secrets of Private Individuals (Art. 230)
1. The secret revealed pertains to private secrets which the public official came to know in his official capacity
2. Examples: (a) Revelation of matters known by Probation Officers or Personnel of the DSWD who conduct background checks on accused or parties to a case (b) revelation of what a PAO Lawyer or Prosecution learned about a person he has interviewed as a witness
C. Crimes Involving Disclosure of Information:
1.Under Infidelity of Public Officers Article 229 and 230)
2. Under Unlawful Means of Publication (Art. 154 par.3) if the revelation is by a private individual
3. Under C.A. 616 or Espionage if the matter pertains to secrets of the state or to the defense the defense of the sate
4. Betrayal of Trust By An Attorney if they pertain to the secrets of a client
5. Under Discovery and Revelation of Secrets under Article 290 (Seizure of Correspondence), 291 (By a manager. Employee or servant) or Article 292 ( Revelation of Industrial Secrets) .These pertain to the revelation of private secrets by a private person
Other Offenses or Irregularities by Public Officers
A. Disobedience which is either:
1. Open Disobedience or Inceptive Disobedience (Art. 231)
a). Crime by a judicial or executive officer who openly refuses to execute the judgment, decision or order of any superior authority within the scope of his jurisdiction and issued with all the legal formalities i.e perfectly valid
b). Examples: (i) Refusal of a trial court Judge to comply with the order of the Supreme Court to remand for the reception of additional evidence (ii) Refusal to reinstate dismissed employee despite Order of the Civil Service Commission (iii) Refusal to Proclaim the winning candidate as found by the Court
2. Disobedience to the Countermanding Order of Superior (Art. 232)
a). The subordinate suspended the execution of the Order of a superior by asking for a reconsideration but suspension was disapproved by the superior and still, the subordinate refuses to carry out the order
b). Example: The Secretary of Justice reversed the Resolution of Dismissal of the City Prosecutor and ordered him to file the Information in Court. The City Prosecution initially did not carry out as he filed a reconsideration or objection but were denied, and yet he refuses to comply.
3. Disobedience in the form of a Refusal of Assistance (Art. 233)
a). The crime committed by a public officer who, upon demand from competent authority, shall fail to lend his cooperation towards the administration of justice or other public services.
b). The refusal must be unjustified
c). Examples: (i) The Chief of Police who refuses to cause the service of subpoena issued by the Prosecutor (ii) a government doctor who refuses to testify as a witness on request of the Prosecutor or the Court (iii) A government doctor who refuses to conduct anti-dengue vaccinations despite request of the City Mayor
4. Disobedience in the form of Refusal to Discharge Elective Office (Art. 234)
a). The crime by an elected public official who shall refuse without legal motives i.e valid justification to be sworn in or to discharge the duties of his office
b). He is not liable if his ground is due to a legal consideration, such as when he was arrested for committing an offense and is imprisoned, or supervening factual reasons, as when he has to go abroad for medical reasons
B. Maltreatment of Prisoners Under Article 235.
a). The offender is a public officer who has actual charge or custody of a prisoner and is responsible for the prisoner
b). The maltreatment is in two forms:
(i). By overdoing himself in the correction or handling a prisoner such as by physical beatings or deprivation of food, or hanging a sign around his neck
(ii). By the imposition of unauthorized punishments or if so authorized, by inflicting such punishments in a cruel or humiliating manner . Examples: punishments such as prevention of visits as punishments or solitary confinements or tying him up or deprivation of sleep, or deprivation of conjugal rights. Or where cleaning the premises is allowed as punishment, by ordering the cleaning at night without sleep, or by ordering the prisoner to clean naked;
c). If injuries or damages were suffered, they are separate offenses
d). If the purpose of the maltreatment is to compel the prisoner to confess to a crime or to obtain some information, the crime is qualified maltreatment
e). The term prisoner is the same as in the prisoner subject of Infidelity i.e one by final judgment or detention prisoner; one who has already been finger printed and booked and placed inside the jail
f ). Other Related Crimes Upon A Person In Police Custody
i). Physical Injuries: if the person is merely in arrest or is a suspect and is not yet a prisoner and is beaten up
ii). Slander by Deed if the person under arrest is paraded with a note on his body saying “I am a drug pusher”
iii). Coercion if the purpose is to compel the person under arrest or suspect to confess or to make incriminatory admissions
C. Anticipation, Prolonging and Abandonment
1. Anticipation of duties (Art. 236): the crime by a person who shall assume the performance of the duties and powers of the public office without first being sworn in or given bond.
2. Prolonging Performance of duties and powers: (Article 238) the crime committed by a public officer who continues to exercise the duties and powers of his office beyond the period provided by law, regulations or special provisions applicable to the case
a). Exercise of powers ceases upon termination of the fixed term or when the purposes is achieved (functus officio) or the office is abolished
b). Except when the officer is allowed to continue in a hold over capacity
3. Abandonment of Office or position: the crime committed by a public officer who before the acceptance of his resignation, shall abandon his office to the detriment of the public service.
a). It is essentially that the officer has filed a formal resignation to the appointing power
b). Resignation to be effective requires an intent to relinquish the position, the act of relinquishment and the acceptance by the appointing authority. Hence the resignation must be accepted, even if the resignation says “Effective immediately” and meantime the officer must continue discharging the functions of his office
c). If the officer simply goes AWOL without filing any formal resignation, he maybe held liable under the Anti Graft and Corrupt Practices Act. This is abandonment as a ground for dismissal but is not the crime of abandonment
d) The penalty is higher if the purpose is to avoid prosecuting or acting on a crime
D. Usurpation of Powers: These crimes refer to the interference by an officer of one department with the functions of the officials of the other departments of government in violation of the principle of separation of powers. They are different form the crime of Usurpation of Authority which is usually committed by private persons.
1. Usurpation of Legislative Powers (Art. 239)
a). Committed by any executive or judicial officer who:
(i). make general rules or regulations beyond the scope of their authority
(ii). attempts to repeal a law or suspend the execution thereof
b). Example: A Mayor who in the guise of an Administrative Order establishes a curfew hour; or directs the Municipal Treasurer to release money to fund a certain project
2. Usurpation of Executive Functions
a). Committed only by a Judge who assumes a power pertaining to the executive or who obstructs the latter in the lawful exercise of their powers.
b) Such as accepting official visitors and presenting them the key to the city. Maybe committed by the issuance of baseless injunctions against purely administrative matters,
3. Usurpation of Judicial Functions Powers (Art. 241)
a). committed by executive officers who: (i) assumes judicial powers (ii) obstructs execution of any order or decision rendered by any Judge within his jurisdiction
b). Example: (i). A Mayor who arbitrates and decides conflicts between his constituents (ii) The Mayor sends his bodyguards and policemen to stop the execution of a writ of execution or prevent the service of warrants
E. Disobeying Request for Inhibition (Art. 242)
1. Committed by any officer who has been formally asked to inhibit or refrain from taking action upon a matter but who continues with the proceeding after having been lawfully required to refrain
2. The offender is an officer before whom there is pending a judicial quasi-judicial or administrative proceeding and the issue of jurisdiction ( can he hear the case?) has been raised and is still under consideration but he continues with the proceeding. This does not apply when the officer is asked to inhibit due to personal bias or loss of trust and confidence in him.
F. Orders or request by executive officer to any judicial authority ( Art. 243)
1. Crime consists of an executive officer giving an order or suggestion to any judicial authority in respect to any case or business within the exclusive jurisdiction of the judicial authority
2. Also punished under RA 3019
3. Example: Suggesting who to be appointed as Clerk of Court or how much bail bond to require or who to appoint as de oficio counsel
G. Unlawful Appointments ( Art. 244)
1. By any public officer who shall knowingly nominate or appoint to any public office any person lacking the legal qualifications
2. But the mere act of recommending is not covered as it simply an act of presenting whereas nominating is vouching for the qualifications of a person
3. To stop political patronage