CRIMINAL LAW (BOOK 2)

ART. 203-245
Instructor: Atty. Desiree Mae E. Reyes
Crimes Committed by Public
Officers
Art. 203. Public Officers
Requisites:
To be a public officer, one must be:
1. Taking part in the performance of public functions in the Government, or Performing in said
Government or any of its branches public duties as an employee, agent or subordinate official, of
any rank or class; and
2. That his authority to take part in the performance of public functions or to perform public duties
must be —
a. by direct provision of the law; or
b. by popular election; or
c. by appointment by competent authority.

*Under R.A. No. 3019 - the term “public officer” includes elective and appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from
the government.
Broad Classifications of Punishable Acts committed by Public Officers:

1. MALFEASANCE— Evil doing or wrongdoing or misconduct; the evil

performance of a public duty by public officers; the performance of some act
which ought not to be done.

2. MISFEASANCE — The doing of a lawful act in an unlawful manner; the

improper performance of an act which may lawfully be done.

3. NONFEASANCE — The omission of some act which ought to be performed.

Dereliction of Duty
Art. 208. Prosecution of Offenses; Negligence and Tolerance
Elements of dereliction of duty:

1. That the offender is a public officer or officer of the law who has a duty to cause
the prosecution of, or to prosecute, offenses.
2. That there is dereliction of the duties of his office; that is, knowing the
commission of the crime, he does not cause the prosecution of the criminal or
knowing that a crime is about to be committed, he tolerates its commission.
3. That the offender acts with malice and deliberate intent to favor the violator of
the law.
Continuation

Who are the offenders?

(a) a public officer, or

(b) an officer of the law.

Acts punishable:

1. By maliciously refraining from instituting prosecution against violators of the law.

2. By maliciously tolerating the commission of offenses

Continuation
Notes:

● “Public officers” also refer to those of the prosecution department whose duty is to institute criminal
actions for offenses made known to them/committed in their presence – PNP, NBI & brgy captains

● Effects when Policeman Tolerates the Commission of Crime

When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the
offender, such police officer cannot be prosecuted for such crime but they can be prosecuted as:

➢ An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3; or
➢ He may become a fence if the crime committed is robbery or theft, in which case he violates the
Anti-Fencing Law; or
➢ He may be held liable for violating the Anti-Graft and Corrupt Practices Act.
Problem 1
NBI agent Jane received a text message from an informant advising her of the whereabouts of alias “Boy Nganga”, who
was detaining 13-year-old Maria for the purpose of extorting ransom from the victim’s family. When Jane arrived, she
saw “Boy Nganga”raping the girl, subdued him but desisted from arresting him because of their previous relationship.
Boy Nganga is actually Jane’s former sweetheart. What crime did Jane commit?

A: Jane is liable for dereliction in the prosecution of offense. Jane, being an NBI agent, is an officer of the law who has
maliciously refrained from prosecuting John for Kidnapping with Rape and who in fact tolerated its commission by not arresting
him while committing said crime.

Problem 2:

Same situation above, except that Jane’s reason for not arresting “Boy Nganga” was the latter’s offer to give her half the
ransom money.

A: Jane will be liable for qualified bribery because she is a public officer entrusted with law enforcement who refrains
from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua in consideration
of any offer, promise, gift, or present
Bribery
Art. 210. Direct Bribery

A public officer commits direct bribery —

1. 1st Form - By agreeing to perform, or by performing, in consideration of any offer, promise,

gift or present — an act constituting a crime, in connection with the performance of his
official duties.
2. 2nd Form - By accepting a gift in consideration of the execution of an act which does not
constitute a crime, in connection with the performance of his official duty.
3. 3rd Form - By agreeing to refrain, or by refraining, from doing something which it is his
official duty to do, in consideration of gift or promise.
 1st form 2nd form 3rd form

What should be accepted? Accepting any offer, Accepting a gift Accepting a gift or promise
promise, gift or present

Act to be performed by Acts constituting a crime Acts not constituting a Refrain, or by refraining,
public officer: crime from doing something
which it is his official duty
to do

Effect: Mere acceptance of offer or There should be a gift or Mere acceptance of offer or
promise consummates the present actually received by promise consummates the
crime in the 1st form the public officer to crime in the 1st form
consummate the crime in
(ex. I will give you Php 5, the 2nd form (ex. I will give you Php 5,
000 if you do this act) (ex. Public officer received 000 if you do not do this
Php 5,000 to do an act) act)
Continuation

4 Essential Elements of Direct Bribery:

1. That the offender be a public officer within the scope of Art. 203.
2. That the offender accepts an offer or a promise or receives a gift or present by himself or through
another.
3. That such offer or promise be accepted, or gift or present received by the public officer —
(a) with a view to committing some crime; or
(b) in consideration of the execution of an act which does not constitute a crime, but the act
must be unjust; or
(c) to refrain from doing something which it is his official duty to do.
4. That the act which the offender agrees to perform or which he executes be connected with the
performance of his official duties.

*Direct bribery is a crime involving moral turpitude.

Continuation:
● Note: Bribery refers to the person receiving the offer, promise, gift.
● On the other hand, the person offering, promising, or giving is liable for
Corruption of Public Official.
● Again, direct bribery covers the following acts:
1. Those constituting crimes
2. Those not constituting crimes
3. Omission to perform an act incumbent upon a public officer.
Problem 1: 1st Form of Direct Bribery

A court stenographer accepted a promise of Php 5,000 from X in consideration of which she will
alter the transcription notes (TSN) taken by her during the trial of a case. The stenographer agreed
to alter the notes but after receiving the bribe money, the stenographer did not alter the TSN at all.
What crime was committed by the court stenographer, if any?

A: Direct Bribery. The fact that the officer (court stenographer) did not proceed to do the act
(altering the TSN) promised by him/her does not matter. The mere agreement to commit the act in
consideration of the offer is enough to hold the officer liable.

*Note: The fact of agreeing to perform + acceptance of offer/promise/gift already consummates the
crime. It is not necessary that the public officer actually do the act. The fact that the public officer
agreed to do the act in consideration of a promise of money already constitutes as direct bribery.
Problem 2: 1st Form of Direct Bribery

A, a public officer, agrees in consideration of Php 5,000 promised by B to alter a public

record, but in her mind, she has no intention of making good her promise. B, on the other
hand, has no intention of paying. Was there a crime committed?

A: Yes, A committed Direct Bribery. The crime is already consummated. Again, mere
agreement to do the act in consideration of the offer is enough to hold the public officer
liable of the crime.

The fact that that the public officer did not actually alter the public record and that B did not
actually pay the public officer are immaterial. Again, what is punished under the law is the
acceptance by the public officer to do the act in consideration of the offer.
Problem 3: 1st Form of Direct Bribery

The public officer himself made the offer of money to alter a record. Is the public officer
liable?

A: Yes. The phrase “Any public officer who shall agree to perform an act” does not only imply
that it is only the public officer/employee who is agreeing to do the act in consideration of the
offer. The law applies even if it is the officer/employee who proposes it.
Continuation

Q: Can a private individual be liable under Art. 210?

A: General Rule: NO.

Exception: Last paragraph of Art. 210: “The provisions contained in the preceding
paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim
commissioners, experts or any other persons performing public duties.”

*example. One of the Board of Regents in the Davao Oriental State University representing the private sector.
Continuation
There is no such thing as Frustrated Direct Bribery. The crime may be committed only in

(1) The Attempted; and

(2) Consummated stage

Because in frustrated felony, the offender must have performed all the acts of execution which would
produce the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs
with the offender (in other words, it takes 2 persons to commit the crime). Once there is
concurrence, the direct bribery is already consummated. In short, the offender could not have
performed all the acts of execution to produce the felony without consummating the same.

If the public officer refuses to be corrupted, the crime is merely attempted corruption of public
officer (Art. 212).
Continuation

Q: If the public official accepted the corrupt consideration and turned it over to his superior as
evidence of the corruption, is there a crime committed?

A: The offense is attempted bribery only and not frustrated. The official did not agree to be
corrupted.

Q: If the public official demanded something from a taxpayer who pretended to agree and use
marked money with the knowledge of the police, what is the crime committed by the public
official?

A: Attempted Bribery. The giver (the taxpayer in this case) has no intention to corrupt the
public official and therefore, he could not perform all the acts of execution.
Important points on the 2nd Form of Direct Bribery

2nd Form/2nd Act - By accepting a gift in consideration of the execution of an

act which does not constitute a crime

Elements:

a. Public officer agrees to do something which is NOT a crime

b. The gift is ACCEPTED

Here, the gift is accepted. Acceptance of the gift is necessary. A gift is accepted here unlike in the 1st act that
the acceptance of gift is unnecessary.
Important points on the 3rd Form of Direct Bribery

3rd Form/3rd Act - By agreeing to refrain, or by refraining, from doing something

which it is his official duty to do, in consideration of gift or promise.

Problem 1:

AAA is the City Health Officer. One of her functions is to conduct sanitation
inspection on restaurants. In consideration of a price or reward by one restaurant
owner, AAA did not inspect his restaurant.

A: AAA is liable of Direct Bribery. He did not do his public duty to inspect the
restaurant in consideration of price or reward.
Problem 2: (3rd form)
Problem 2:

During a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of
methamphetamine hydrochloride (shabu) to a poseur-buyer. Cao Shih, through an
intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry
Section, the amount of P500,000.00 in consideration for the destruction of the drug.
Patrick managed to destroy the drug. What are the crimes committed by Patrick?

A: Direct Bribery. (Also committed Infidelity in the Custody of Documents)

When a public officer is called upon to perform or refrain from performing an official act in exchange for a
gift, present, or consideration given to him (Art. 210, RPC), the crime committed is direct bribery.
Secondly, he destroyed the shabu which is evidence in his official custody, thus, constituting infidelity in the
custody of documents under Art. 226 of the RPC.
Art. 211. Indirect Bribery

Elements:

1. That the offender is a public officer.

2. That he accepts gifts.

3. That the said gifts are offered to him by reason of his office.
Continuation
Notes:

● There should be acceptance of gifts – not just a promise. (If the public officer does not
accept the gift, this crime is not committed but the offeror is guilty of Corruption of
Public Officials under Art. 212.)
● The gift is given in anticipation of future favor from the public officer.
● Public officer received gifts does not undertake to perform an act or abstain from doing
one – but only BY REASON OF OFFICE.
● Always in the consummated stage
○ No attempted/frustrated stage- because if the gift is not accepted then there is no
crime of indirect bribery; one of the elements require acceptance of the gift.
● There must be clear intention that the public officer took the property w/ intention to
own it (ex. Act of using/appropriating such gift for his family or employees)
○ physical receipt w/o any other act to show acceptance not sufficient.
Continuation
Direct Bribery Indirect Bribery

PO performs/ refrains from performing an Simple acceptance of gifts by reason of his office – no
act in exchange for consideration performance/ abstention from performing an act is
necessary

May be committed only in attempted & Only consummated

consummated

Mere agreement consummates the crime of The public officer must accept the gift to consummate
Direct Bribery if the act agreed upon the crime.
amounts to a crime (there must be clear intention on the part of the public
officer to take the gift offered and consider the
property as his own for that moment. Mere physical
receipt, unaccompanied by any other sign,
circumstance or act to show such acceptance is not
sufficient to convict the officer.)

What begins as indirect bribery may ripen into direct bribery

Continuation
Direct Bribery Indirect Bribery

In direct bribery, consider whether the official act, The public officer in Indirect bribery is not to
which the public officer agreed to do, is a crime or perform any official act.
not.
Indirect bribery in Bisaya is “padulas”or “sipsip”.
If it will amount to a crime, it is not necessary that
the corruptor should deliver the consideration or
the doing of the act. The moment there is a meeting
of the minds, even without the delivery of the
consideration, even without the public officer
performing the act amounting to a crime, bribery is
already committed on the part of the public officer.
Continuation
Problem 1:

CP, the Chief of Police, bought a Php 10M worth of SUV for only Php 1.5M. What
is the crime committed by CP, if any?

A: CP is liable for indirect bribery. His act is considered as acceptance of gifts

that are offered to him by reason of his office.
Art. 211-A. Qualified Bribery
Elements:

1. Offender is a public officer entrusted with law enforcement;

2. He refrains from arresting or prosecuting an offender who has committed a
crime punishable by reclusion perpetua and/or death;
3. Offender refrains from arresting or prosecuting in consideration of any
offer, promise, gift, or present.

Ex. crimes punishable by RP and/or death - Rape (1st form); Murder; Parricide;
Kidnapping and serious illegal detention
Art. 212. Corruption of Public Officials
Elements:

1. That the offender makes offers or promises, gives gifts or presents to a

public officer.
2. That the offers or promises are made or the gifts or presents given to a
public officer, under circumstances that will make the public officer liable
for direct bribery or indirect bribery.

Bribery Corruption of Public Officials

Committed by the public officer who receives Committed by the person who makes the offer,
the offer, gift, promise, etc. (the receiver) promise, or gives the gifts, etc. (the giver)
Continuation

Q. What if the public officer refuses to be corrupted, what crime is committed?

A: The crime is merely attempted corruption of public officials.

Q: Supposing the public official actually accepted a consideration and allowed

himself to be corrupted, what is the crime committed?

A: The corruptor becomes liable for corruption of public official (consummated

stage)under Art. 212 and the public officer also becomes liable for consummated
bribery.
Presidential Decree No. 46 (PD 46)
● PD 46 prohibits giving and acceptance of gifts by a public officer or to a
public officer, even during anniversary, or when there is an occasion like
Christmas, New Year, or any gift-giving anniversary. It punishes both
receiver and giver.

● It prohibits giving and receiving gifts given by reason of official position,

regardless of whether or not the same is for past or future favors.

● The giving of parties by reason of the promotion of a public official is

considered a crime even though it may call for a celebration. The giving of a
party is not limited to the public officer only but also to any member of his
family.
Presidential Decree No. 749 (PD 749)
● PD 749 grants immunity from prosecution to a private person or public officer who
shall voluntarily give information and willingly testify in a case of bribery or in a
case involving a violation of the Anti-Graft and Corrupt Practices Act.

● The law provides immunity to the bribe giver , provided he/she meets the
following conditions:
1. The information must refer to consummated violations of any of the
above-mentioned provisions of law, rules and regulations;
2. The information and testimony are necessary for the conviction of the
accused public officer;
3. Such information and testimony are not yet in the possession of the State;
4. Such information and testimony can be corroborated on its material points;
and
5. The informant or witness has not been previously convicted of a crime
involving moral turpitude.
Anti-Graft and Corrupt Practices Act (RA 3019)
Section 3. Corrupt practices of public officers. In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
A. Persuading/influencing or being persuaded/influenced to commit actions violating rules or official duties.

B. Requesting or receiving gifts, benefits, or payments in connection with contracts, transactions, permits, or
licenses.

C. Accepting gifts or benefits from individuals for whom the public officer has secured or will secure
government permits or licenses.

D. Accepting employment for oneself or family members in private enterprises that have pending official
business with the public officer. (“family” includes relative by consanguinity or affinity w/in the 3rd civil
degree)

E. Causing harm or providing unwarranted benefits due to partiality, bad faith, or gross negligence in
administrative or judicial functions.
Continuation
F. Delaying or refusing to act on matters to gain personal benefit, favor specific parties, or discriminate against
others.

G. Engaging in government contracts or transactions that are significantly disadvantageous to the government.

H. Holding financial interests in businesses or transactions that the public officer oversees or is prohibited from
being involved in by law.

I. Pursuing personal gain or having a material interest in transactions requiring board or group approval, even
without direct participation.

J. Approving licenses, permits, or benefits for unqualified or unauthorized individuals.

K. Disclosing confidential government information to unauthorized persons or releasing it prematurely.

*notes:
● Q. Who may be liable under Sec. 3 of RA 3019?
A. The law punishes not only public officers who commit the prohibited acts enumerated in Sec. 3 but also those who
induces or causes the public official to commit those offenses. (Santillano v. People, March 3, 2010)
● A person can be charged by both RA 3019 (Sec. 3(b) and direct bribery.
Continuation
Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8)

a. If a public official has been found to have acquired during his incumbency, whether
in his name or in the name of other persons, an amount of property and/or money
manifestly out of proportion to his salary and to his other lawful income.
b. Properties in the name of the spouse and dependents of such public official may be
taken into consideration, when their acquisition through legitimate means cannot
be satisfactorily shown.
c. Bank deposits in the name of or manifestly excessive expenditures incurred by the
public official, his spouse or any of their dependents
Continuation

Sec. 13. Suspension and Loss of Benefits

● Pending in Court - Any public officer against whom any criminal prosecution
under a valid information under this Act or under the provisions of the Revised
Penal Code on bribery is pending in court, shall be suspended from office.
○ Purpose of Suspension: To prevent the accused from frustrating or
hampering his prosecution by intimidating or influencing witnesses.
● After conviction by final judgement - Should he be convicted by final judgment,
he shall lose all retirement or gratuity benefits under any law, but if he is
acquitted, he shall be entitled to reinstatement and to the salaries and benefits
which he failed to receive during suspension, unless in the meantime
administrative proceedings have been filed against him.
Continuation

Q: Can a private person be charged together with the public officer in the same
proceeding?

A: Yes. To avoid repeated and unnecessary presentation of witnesses and exhibits in

different venues especially if the issues involved are the same. If a private person is
tried jointly with a public officer, he may also be convicted jointly.
Malversation of Public Funds or
Property
Art. 217. Malversation of Public Funds or Property; Presumption of Malversation
Acts punishable in malversation (a.k.a. Embezzlement):

1. By appropriating public funds or property.

2. By taking or misappropriating the same.

3. By consenting, or through abandonment or negligence, permitting any other person to take such public
funds or property.

4. By being otherwise guilty of the misappropriation or malversation of such funds or property.

Q: What is the concept of malversation?

A: It consists in the misappropriation, appropriation, or conversion of public funds or property to ones personal use or knowingly
through abandonment or negligence allowing others to use or appropriate the same. The offender is made liable because of the nature
of his duties to take care of the funds or property entrusted to him with the diligence of a good father of a family. He is accountable by
virtue of the nature of his office to account for funds or properties that come to his possession.

If not accountable - if he is not accountable for the funds of the properties and he misappropriates the same, if he is not accountable
for the funds or property and he appropriates or misappropriates it, the crime will not be falling under Article 217 but it would fall
under Article 315- Estafa.
Elements common to all acts of malversation under Art. 217:

1) That the offender be a public officer.

2) That he had the custody or control of funds or property by reason of the duties of his office.

3) That those funds or property were public funds or property for which he was accountable.

4) That he appropriated, took, misappropriated or consented or, through abandonment or

negligence, permitted another person to take them.

Q: Can all public officers commit malversation?

A: No. Not all public officers or employees may commit crimes of malversation. It can be committed only by
public officers or employees directly accountable for the public funds or property that is misappropriated. So, if he
is not an accountable officer to the said public funds in question, then, he is not liable for malversation. Refer to
the second element of malversation - has custody or control of funds or property by reason of the duties of his
office
Presumption of Malversation

● If a public officer cannot account for public funds or property under their responsibility
when officially demanded, it is assumed they used it for personal purposes.

● In determining if the crime is committed, look at the nature of the duties of the public
officer:
a. He has to account or is required by the nature of the performance of the duty to render
an account on the money or property that came into his possession.
b. The nature of his duty is to take care of the properties or funds entrusted to him with
the diligence of a father of a good family.
c. By virtue of the nature of his office, he is accountable for the property or funds that
come to his possession. Even a mere clerk can commit malversation
Problem 1:

Mesina is a cashier of the City Treasurer’s Office (CTO) of Caloocan City. He received from his
co-employee, a certain Miss Baclit, an amount which he is supposed to remit at the CTO. Now, the
CTO did not receive the amount from Mesina. When confronted, Mesina denied having received
the amount from Miss Baclit. His denial continued until the next day when City Mayor asked them
both about the matter. Only after the petitioner’s vault was finally opened did he declare that the
collection was inside his vault. Even then, the actual amount found therein was short. Is Mesina
liable?

A: Yes. The failure of the petitioner to have the collection duly forthcoming upon demand by the
duly authorized officer was prima facie evidence that he had put such missing fund to personal use.
Although the showing was merely prima facie, and, therefore, rebuttable, he did not rebut it,
considering that he not only did not account for the collection upon demand but even steadfastly
denied having received it up to the time of the inspection of the sealed vault. Under the
circumstances, he was guilty of the misappropriation of the collection. (Mesina v. People)
Problem 2:

The city hall of Ormoc City is under construction. The city engineer was the one in charge of the
construction. He has direct custody of the construction materials. One day, the city mayor
inspected the ongoing construction. While he was there, several of his constituents who were
victims of Typhoon Ondoy approached him. They asked permission to get 20 bags of cement,
several pieces of lumber, and several kilos of concrete nails. The city mayor allowed them to get it
to show compassion. Is the mayor liable for malversation under article 217?

A: No. The mayor is not liable. To commit malversation, the offender must be accountable for the
public funds or property misappropriated by him. The mayor is not the one accountable for the
public property. It is the city engineer who has control of the public property.
Continuation

Who can commit the crime?

Gen. Rule: Only public officers or employees directly accountable for the public funds
or property that is misappropriated. if he is not an accountable officer, he is not liable
for malversation.

Exception: A private person can commit malversation in 3 instances:

i. When the private person conspires with the public officer
ii. When he takes direct participation or cooperates in the commission of the
malversation in connivance with the public officers
iii. If the private person be charged with a national, provincial or municipal funds,
revenue or property
Continuation
Q: What if the offender returns the funds or property? Does this extinguish his/her criminal
liability?

A: No. The return of the funds cannot be used as a defense and will not extinguish the
criminal liability for malversation. (Cimafranca v. SB)
__________________________

Malversation (Art. 217) Technical Malversation (Art. 220)

The offender misappropriates public funds or The public officer applies public funds or
property for his own personal use or allows any property under his administration to another
other person to take such funds or property for public use different from that for which the public
the latter’s own personal use. fund was appropriated by law or ordinance.

One who is charged with Malversation cannot be convicted with Technical Malversation
Problem 3:

A was duly appointed cashier of the Treasurer’s Office of Albay. During an audit examination of
her cash and accounts, she was found to incur a shortage of P2.5 million. Because she failed to
produce any cash and valid cash items to effect the shortage in her accountabilities, she was
charged with malversation of public funds. Her defense is that she did not benefit a single centavo
from the missing funds; that said funds were disbursed as cash advances to her co-employees in
good faith; and in continuance of a practice tolerated in her office (“vale” system). Can A use such
defense against the charge for malversation?

A: No. The grant of loans through the "vale" system is a clear case of an accountable officer
consenting to the improper or unauthorized use of public funds by other persons, which is
punishable by the law. To tolerate a such practice is to give a license to every disbursing officer to
conduct a lending operation with the use of public funds. (Cabello v. SB)

Hence, A is liable for Malversation.

Problem 4:

An unlicensed firearm was confiscated by a policeman. Instead of turning over the

firearm, to the property custodian for the prosecution of the offender, the policeman
sold the firearm. What crime was committed?

A: The crime committed is malversation because that firearm is subject to his

accountability. Having taken custody of the firearm, he is supposed to account for it as
evidence for the prosecution of the offender.
Problem 5:

A member of the PNP went on AWOL. He was charged with malversation of the
firearm issued to him. After two years, he came out of hiding and surrendered the
firearm. What crime was committed by the policeman?

A: The crime committed is malversation. Payment of the amount or surrender of the

firearm misappropriated or restitution of the property misappropriated does not
extinguish the criminal liability, but only the civil liability.
Problem 5:

Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return
to his office after a day-long official conference. He alighted from the government car
which was officially assigned to him, leaving the ignition key and the car unlocked, and
rushed to his office. Jules, a bystander, drove off with the car and later sold the same to
his brother. What is the crime committed?

A: Allan committed Malversation committed through negligence or culpa. The

government car which was assigned to him is public property under his accountability
by reason of his duties. By his act of negligence, he permitted the taking of the car by
another person, resulting in malversation, consistent with the language of Art. 217 of
RPC.
*malversation can be committed through negligence
Art. 218. Failure of Accountable Officer to Render Accounts
Elements:

1. The offender is a public officer, whether in the service or separated

therefrom;
2. He must be an accountable officer for public funds or property;
3. He is required by law or regulation to render accounts to the Commission on
Audit, or to a provincial auditor; and
4. He fails to do so for a period of two (2) months after such accounts should
be rendered.

*Note - this is a felony by omission

Problem 1:

Lazaro is a municipal treasurer. He resigned from public office. He failed to render

account of public accounts and property that were under his custody. He in fact had
not obtained a clearance from the office of the provincial prosecutor. What crime did
Lazaro commit?

A: He is liable of a crime for failure to accountable officer to render accounts. His

resignation or separation from public office does not relieved him of responsibility to
render accounts.
Problem 2:
Manlangit, as OIC for the Pinatubo Commission, received the amount of P176,300 to fund the 6th Founding Anniversary
Info-Media Activities of the Commission. A few months thereafter, he resigned without accounting for the fund. He was
subsequently charged under Article 218 because the accused failed to render an account. In his defense, the case is mooted
because he already rendered an accounting though late for 2 months and 10 days. According to him, there was no criminal
delay on his part since there was no demand from the COA for an accounting. Further, the sanction provided in the COA
circular for failure to render account was simply the withholding of wages.

Q1: Is Manlangit liable?

A: Yes. Article 218 penalizes the accountable officer's failure to render an account within a period of two months after such
accounts should be rendered. Clearly, petitioner's submission of his
liquidation report was beyond the two- month period allowed by the provision. (Manlangit v. SB)

Q2: Is demand necessary for one to be held liable under Art. 218?

A: No. Demand to render account is not necessary. It is sufficient that there is a law or regulation requiring him to render
account. It is the failure to follow the requirement of the law that is made punishable. It is not necessary that the offender
actually committed malversation because the object of the law is to prevent the situation of the crime being committed
because of the failure of the accountable officer to render an account. (Also, nowhere in the elements of Art. 218 does it
require demand.)
Art. 219. Failure of a Responsible Public Officer to Render Accounts Before Leaving
the Country

Elements:

1) That the offender is a public officer.

2) That he must be an accountable officer for public funds or property.
3) That he must have unlawfully left (or be on the point of leaving) the Philippines
without securing from the Commission on Audit (COA) a certificate showing
that his accounts have been finally settled.

● Note: The act of leaving the country must be unauthorized or not permitted by law.
● The failure to secure such clearance from COA makes them liable. This is true even
without public fund or property is misappropriated.
Art. 220. Illegal Use of Public Funds or Property (Technical Malversation)

Elements:

1. That the offender is a public officer.

2. That there is public fund or property under his administration.
3. That such public fund or property has been appropriated by law or ordinance.
4. That he applies the same to a public use other than that for which such fund or
property has been appropriated by law or ordinance.
Continuation
Notes:

● The term “technical malversation” is used because in this crime, the fund or property involved is
already appropriated or earmarked for a certain public purpose.
● The offender is entrusted with such fund or property only to administer or apply the same to the
public purpose for which it was appropriated by law or ordinance. Instead of applying it to the
public purpose to which the fund or property was already appropriated by law, the public officer
applied it to another public purpose.
● Damage is not an element of malversation - even though the application may be proved to be
more beneficial to public interest than the original purpose for which the amount or property was
appropriated by law, the public officer involved is still liable.
● If the public funds are not yet appropriated to a certain public purpose - the crime is plain and
simple malversation, not technical malversation.
Continuation
Notes:

● Returning the embezzled funds does not extinguish criminal liability, it is only mitigating
(penalty is reduced).
● Payment of the amount misappropriated or restitution of property misappropriated does not
erase criminal liability but only civil liability.
● Demand as well as damages to the government are not necessary elements.
● Good faith is not a valid defense for technical malversation. It is the commission of an act as
defined by the law, and not the character or effect thereof, that determines whether or not the
provision has been violated.
Continuation

Malversation (Art. 217) Technical Malversation (Art. 220)

The offender misappropriates public funds or The public officer applies public funds or property
property for his own personal use or allows any under his administration to another public use
other person to take such funds or property for different from that for which the public fund was
the latter’s own personal use. appropriated by law or ordinance.

One who is charged with Malversation cannot be convicted with Technical Malversation (will violate
double jeopardy because Technical Malversation is not included in the crime of Malversation)
Problem 1:
Mayor Ysidoro of Leyte was charged for technical malversation for distributing rice and sardines to the
volunteers for the Core Assistance Program (CSAP) who were building homes for the victims of
typhoon. The rice and sardines were intended for the malnourished children. He argued that he
committed the act in good faith.

Is Mayor Isidoro liable of any crime?

A: Yes. Mayor Isidoro is liable under Art. 220 - Technical Malversation. Criminal intent is not an element
of technical malversation. The law punishes the act of diverting public property earmarked by law or
ordinance for a particular public purpose to another public purpose. The offense is mala prohibita,
meaning that the prohibited act is not inherently immoral but becomes a criminal offense because
positive law forbids its commission based on considerations of public policy, order, and convenience. It is
the commission of an act as defined by the law, and not the character or effect thereof, that determines
whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant.
Infidelity of Public Officers
Art. 223. Conniving with or Consenting to Evasion

Elements:

1. That the offender is a public officer.

2. That he had in his custody or charge, a prisoner, either (a) detention prisoner or
(b) prisoner by final judgment.
3. That such prisoner escaped from his custody.
4. That the public officer consented to or connived with the escape of the prisoner.
Continuation
Notes

● Classes of prisoners involved:

a. If the fugitive has been sentenced by final judgment to any penalty.
b. If the fugitive is held only as detention prisoner for any crime or violation of law
or municipal ordinance.
● The Public officer must be in connivance or consents to the escape.
● Without connivance on the part of the person in charge, Art. 223 is not committed.
● Laxity in the performance of duties does not necessarily constitute a violation of Art.
223.
Art. 224. Evasion through Negligence
Elements:

1. Offender is a public officer;

2. He is charged with the conveyance or custody of a prisoner or prisoner by final judgment ;
3. Such prisoner escapes through negligence.
Note: Not every error is negligence under this article. To be liable, the negligence must be notorious and
apparent. The laxity must be definite and must seriously suggest a deliberate non- performance of a duty.

Liability of the Escaping Prisoner

Detention Prisoner Detained prisoner serving sentence by final judgment

No crime for escaping Commits the crime under Art. 157 - Evasion of Service of
Sentence)
Problem 1:
A prison guard accompanied the prisoner in the toilet. The prison guard waited for the prisoner but
the prisoner was able to escape. Prison guard was accused of infidelity (in the custody of prisoners).
Is the prison guard liable?

A: There is no criminal liability because it does not constitute negligence. Negligence contemplated
here refers to deliberate abandonment of duty. The prison guard accompanied the prisoner, however,
he was able to escape.

*Note, however, that according to a recent Supreme Court ruling, failure to accompany lady prisoner
in the comfort room is a case of negligence and therefore the custodian is liable for infidelity in the
custody of prisoner.
Art. 225. Escape of Prisoner Under the Custody of a Person Not a Public Officer
Elements:

1. Offender is a private person (Note: must be on duty)

2. The conveyance or custody of a prisoner or person under arrest is confided to him;
3. The prisoner or person under arrest escapes;
4. Offender consents to the escape, or that the escape takes place through his negligence.

Notes:

● Only the custodian of prisoners is liable under this article.

● If not the custodian - crime committed is Delivering Prisoners From Jail (Art. 157)
● Jail guard who allowed the prisoner to escape, but at the time he was already off-duty and no longer
the custodian of the prisoner - crime committed is Delivering Prisoners From Jail (Art. 157)
Problem 1:
A policeman escorted a prisoner to court. After the court hearing, this policeman was shot, with a view to
liberate the prisoner from his custody. The policeman fought the attacker but he was fatally wounded. When
he could no longer control the prisoner, he went to a nearby house, talked to the head of the family of that
house and asked him if he could give the custody of the prisoner to him. He said yes. After the prisoner was
handcuffed, the policeman died. Thereafter, the head of the family of that private house asked the prisoner if
he could give him something so that he would allow him to go. The prisoner said, “Yes, if you would allow
me to leave, you can come with me and I will give the money to you.” This head of the family went with the
prisoner and when the money was given, he allowed him to go. What crime/s had been committed?

A: The head of the family is liable under Art. 225 because the crime can be committed by a private person
to whom the custody of a prisoner has been confided.

Where such private person, while performing a private function by virtue of a provision of law, shall accept
any consideration or gift for the non-performance of a duty confided to him, Bribery is also committed. So
the crime committed by him is infidelity in the custody of prisoners (Art. 225) and bribery.
Art. 226. Removal, Concealment, or Destruction of Documents
Elements:

1. That the offender be a public officer.

2. That he (removes) abstracts, destroys or conceals documents or papers.
3. That the said documents or papers should have been entrusted to such public officer by
reason of his office.
4. That damage , whether serious or not, to a third party or to the public interest should have
been caused.
 Continuation
Notes:

● Documents - refer to an instrument or writing that has created or established a right or has extinguished an
obligation, such as contracts, court orders

○ Books, periodicals, pamphlets, etc. - NOT classified as documents.

● Papers - in its legal meaning, which means negotiable instruments, e.g. checks, promissory notes, money order.

Removal Destruction Concealment

means to render the document useless. Its means to make it appear that the
nature to prove the existence of a fact is lost document is not available.
such that it cannot anymore prove the
probability or improbability of a fact in issue.

Requires proof of illicit purpose: Infidelity in the custody of public documents by means of destruction and concealment
does not require proof of illicit purpose.
a. To tamper with it; or
b. To profit from it; or
c. To commit an act constituting a breach of
trust in the official care thereof.
Continuation

● Ex. 1 - Where in case for bribery or corruption, the money involved was marked as exhibits, such
marked money acquires the nature of a document such that if the same would be spent by the
custodian, the crime is not malversation but Infidelity in the custody of public records, because
the money adduced as exhibits partake the nature of a document and not as money.

● Ex. 2 - The drugs seized during buy-bust operation are already considered as evidence. If the
custodian destroys it, it constitutes infidelity in the custody of public records.

● The crime of removal of public document in breach of official trust is consummated upon its
removal or secreting away from its usual place in the office and after the offender had gone out
and locked the door, it being immaterial whether he has or has not actually accomplished the
illicit purpose for which he removed said document.
Continuation
Problem 1:

Rafael is an election supervisor. The election returns were turned over to him by virtue of his position.
The election returns were needed during the hearing of an electoral protest. Rafael was summoned and
was ordered to present the election returns. Rafael did not produce the documents. He gave a lame
excuse that he lost them. What is Rafael’s liability?

Ans: Rafael is liable for infidelity in the custody of documents. The election returns was entrusted to
him by virtue of his position. He is liable.
Other Offenses or Irregularities by
Public Officers
Art. 231. Open Disobedience
Elements:

1. That the offender is a judicial or executive officer.

2. That there is a judgment, decision or order of a superior authority.

3. That such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and
issued with all the legal formalities.
4. That the offender without any legal justification openly refuses to execute the said judgment, decision or order,
which he is duty bound to obey.

Notes:

● The offender herein is a public officer who is appointed either in the judiciary or in the executive branch of the
government.

● Gravamen of the offense (the key aspect of the crime) is the open refusal of the offender to execute the order without
justifiable reason.

● “Execute” – does not only mean performance of an act since the judgment, decision or order may also direct the
non-performance of an act.

● This is not applicable to members of Congress

Art. 232. Disobedience to Order of Superior Officer, When Said Order Was Suspended by
Inferior Officer

Elements:

1. That the offender is a public officer.

2. That an order is issued by his superior for execution.
3. That he has for any reason suspended the execution of such order.
4. That his superior disapproves the suspension of the execution of the order.
5. That the offender disobeys his superior despite the disapproval of the suspension.
Note: This article does not apply if the order of the superior is illegal.

Situation under Art. 232:

There is an order issued by the superior. The subordinate has doubts as to the legality of such order, so he suspends the
execution of such order [no liability at this point]. But when his superior disapproves the suspension of the execution of the
order, the subordinate’s refusal to execute the order is punishable.
Art. 233. Refusal of Assistance
Elements:

1. That the offender is a public officer.

2. That a competent authority demands from the offender that he lend his cooperation towards the administration
of justice or other public service.
3. That the offender fails to do so maliciously.
Notes:

● Resulting damage to the public interest or to a private person is essential for one to be held liable under Art. 233.
● Ex. A government physician, who had been subpoenaed to appear in court to testify in connection with physical injury
cases or cases involving human lives, does not want to appear in court to testify. He may be charged for refusal of
assistance. As long as they have been properly notified by subpoena and they disobeyed the subpoena, they can be
charged always if it can be shown that they are deliberately refusing to appear in court.

● But violation is not limited to court appearance. Any refusal by the public officer to render assistance when
demanded by competent public authority, as long as the assistance requested from them is within their duty to
render and that assistance is needed for public service, constitutes refusal of assistance under Art. 233.

● The request must come from one public officer to another.

Art. 235. Maltreatment of Prisoners

Elements:

1. That the offender is a public officer or employee.

2. That he has under his charge a prisoner or detention prisoner.
3. That he maltreats such prisoner in either of the following manners:
a. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge
either:
(1) by the imposition of punishments not authorized by the regulations, or
(2) by inflicting such punishments (those authorized) in a cruel and humiliating manner; or
b. By maltreating such prisoner to extort a confession or to obtain some information from the prisoner.
Continuation
Notes:

● Kinds of Maltreatment Contemplated :

1. Imposing punishment not authorized by regulation

2. Inflicting authorized punishment in a cruel or humiliating manner on prisoner or detention
prisoner under charge of the public officer

● Prisoner maltreated here must be “under the actual charge” of the public officer and not by legal fiction.
○ The mere fact that a private citizen had been apprehended or arrested by law officers does not
automatically constitute him a prisoner. To be a prisoner, he must have been booked and
incarcerated, no matter how short it is.

● The maltreatment here must contemplate the following purposes:

a. maltreatment in relation to the correction or handling of the prisoner
b. maltreatment for the purpose of extorting confession.
Review on Anti-Torture Act in relation to Maltreatment of Prisoners
"Torture" refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for
such purposes as:

1. obtaining from him/her or a third person information or a confession;

2. punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or
3. intimidating or coercing him/her or a third person; or
4. for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a person in authority or agent of a person in authority.
5. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

● Remember: Separate and independent crime - violation of Anti-torture Act is separate crime; it shall not
absorb nor be absorbed by another crime/felony
○ The liability of the public officer would be for Maltreatment and at the same time he is liable under
the Anti-Torture Law.
Continuation

Problem 1:

A was a detention prisoner for 5 days in the Sta. Ana Police Station. B was assigned to the said station and upon
his arrival, B saw A in the jail who once upon a time mauled B in a disco 1 year ago. B mauled A. A suffered
physical injuries. What crime was committed by B?

Ans.: B committed the crime of Physical Injuries. The maltreatment here is personal to the jailer (B). It was not
for the purpose of correction or handling of prisoner or the extortion of a confession from the prisoner.

Problem 2:

A was arrested and put to jail. Every time he fails to say "good morning" to Jail Officer Y, the latter would slap him.

Ans.: Jail Officer Y is liable for maltreatment of prisoner.

Continuation

Problem 3:

Jail Officer Y inserts a bullet between the fingers of a prisoner and thereafter he squeezes the fingers of the
prisoner. He does it in order to extract confession from the prisoner.

Ans.: Jail Officer Y is liable for maltreatment of prisoner.

Problem 4:

SPO1 Unga went to the city jail. He asked the jail guard to bring Abet to him for interrogation regarding the robbery
that took place in the city hall. Abet refused to answer the questions propounded by the policeman. SPO1 Unga
boxed and kicked Abet and the latter suffered physical injuries. What crime did SPO1 Unga commit?

Ans.: Physical Injuries. Not maltreatment of prisoner because SPO1 Unga is not the custodian of the prisoner.
Q: What if the jail guard in this case was present and he just allowed the police officer commit the acts and did nothing
to prevent it?
A: The jail guard would be equally liable for physical injuries because he did nothing to prevent the infliction of
physical injuries.
Continuation
Problem 5:

X is detained for Rape. One night, X became unruly. He kept shouting invectives at another inmate. Jail
Officer Q tried to pacify him but the prisoner refused to stop. Jail Officer Q repeatedly hit X with a
nightstick. The prisoner suffered contusion, hematoma and multiple fractures. X was hospitalized for more
than 30 days. What crime/s did Jail Officer Q commit?

Ans.: JO Q committed Maltreatment of prisoner. He overdid himself in handling the prisoner under his
charge. In addition, he is liable for Serious Physical Injuries. The injuries required medical attendance for
more than 30 days.

*Note: When in the process of imposing discipline, the prisoner suffers physical injuries, the separate crimes
of maltreatment of prisoners and physical injuries are charged.
Continuation
Problem 6:

AA was arrested for committing a bailable offense and detained in solitary confinement. He was able
to post bail after two (2) weeks of detention. During the period of detention, he was not given any
food. Such deprivation caused him physical discomfort. What crime, if any, was committed in
connection with the solitary confinement and food deprivation of AA?

Ans.: The crime of torture and maltreatment of prisoner is committed. Food deprivation and
confinement in solitary cell are considered as physical and psychological torture under Sec. 4(2) of
the Anti-Torture Act of 2009 or R.A. 9745
Art. 245. Abuses Against Chastity

Ways of committing abuses against chastity:

1. By soliciting or making immoral or indecent advances to a woman interested in matters

pending before the offending officer for decision, or with respect to which he is required to
submit a report to or consult with a superior officer.
2. By soliciting or making immoral or indecent advances to a woman under the offender's
custody.
3. By soliciting or making immoral or indecent advances to the wife, daughter, sister or
relative within the same degree by affinity of any person in the custody of the offending
warden or officer.
Continuation
Elements:

1. That the offender is a public officer.

2. That he solicits or makes immoral or indecent advances to a woman.
3. That such woman must be:
(a) interested in matters pending before the offender for decision, or with respect to which he is
required to submit a report to or consult with a superior officer; or
(b) under the custody of the offender who is a warden or other public officer directly charged with
the care and custody of prisoners or persons under arrest; or
(c) the wife, daughter, sister or relative within the same degree by affinity of the person in the
custody of the offender.
Continuation
Notes:
● Persons liable:
1. The public officer before whom a matter of interest to a woman is pending
2. The warden or any public officer who has custody of prisoners

● “Solicit” - means to demand earnestly. In this case, the demand is for sexual favor. It must be immoral
or indecent and done by the public officer taking advantage of his position as one who can help by
rendering a favorable decision or unwarranted benefits, advantage or preference to a person under his
custody.

● It is NOT necessary for the offended party to surrender her virtue to consummate the crime. Mere
proposal is sufficient to consummate the crime.
Continuation
Problem 1:
W is detained at the City Jail of Manila. His sister D travelled all the way from Mankayan, Benguet to visit
him. When D arrived at the city jail, it was already beyond visiting hours. She explained that she came all
the way from Benguet and that she will return to their place after a brief talk to her detained brother. Jail
Officer X refused to let her see her brother. D pleaded to allow her to speak to her brother even for just a
minute. Jail Officer X agreed with the condition that she will allow him to kiss her on the lips thereafter.
What crime did Jail Officer X commit?
Ans.: Jail Officer X is liable for abuse against chastity. He solicited immoral or indecent proposal to the
sister of an inmate under his custody.
Continuation
Problem 2:
Lorna is a lady warden. She got a big crush on Marco, who is detained for violation of the drugs law. She
put Marco on solitary confinement because of his misbehaviour. One night, Lorna summoned Marco to
her office. She told right before the face of Marco that she likes him and wants to make love with him and
in return Marco will have no restrictions in jail. Is the lady warden liable for abuse against chastity?
Ans.: No. She is not liable for abuse against chastity. The crime cannot be committed if the jail warden or
jail guard is a woman and she makes immoral or indecent proposal or advances to a male prisoner under
her custody. (In the crime of abuse against chastity under Art. 245, the offended party is always a WOMAN)
*Other crimes that the lady warden may be charged with:

● Violation of the Safe Spaces Act (Republic Act No. 11313) - penalizes acts of sexual harassment committed in
abuse of authority or influence.
● Violation of the Anti-Torture Act (Republic Act No. 9745) - for the mental or psychological torture inflicted
on the prisoner
Continuation
Problem 3:
Jail Warden Lily is a lesbian. She solicited sexual favors to a lady prisoner under her
custody in exchange of some privileges in jail. Is the jail warden liable for abuse against
chastity?
Answer: Yes. The lesbian warden is liable for abuse against chastity. The law does not
provide that the custodian of a prisoner be a man. It only requires that the OFFENDED
PARTY MUST BE A WOMAN.