CRIMES COMMITTED BY PUBLIC OFFICERS

(Title Seven)
In crimes or offenses committed by public officers, one of their indispensable elements is that the offender be a
public officer or employee or the offense cannot exist without the office or be intimately connected with the office
and perpetuated while the officer is in the performance of his office.  To be in public office, compensation is usual
but not necessary criterion.  Honorary office is public office nonetheless.  Delegation of sovereign function is the
most important characteristic of a public office.  Clearly, the National Centennial Commission (NCC) performed
sovereign function.[1]
For the purpose of applying the provisions of the Revised Penal Code, the term public officer is any person who, by
direct provisions 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.[2]
Malfeasance and Misfeasance in Office

Malfeasance is the performance of some act which ought not to be done.  Misfeasance is the improper performance
of some act which might lawfully be done, and Nonfeasance is the omission of some act which ought to be
performed.
 KNOWINGLY RENDERING UNJUST JUDGMENT
 Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision. (Art.
204)
The requisites are:
1. Appears that the judgment is unjust or one which is contrary to law or is not supported by the evidence.

2. The judge rendered it with conscious and deliberate intent to do an injustice.[3]

Article 204 has no application to members of a collegiate court such as the Supreme Court or its Divisions who
reach their conclusion in consultation and accordingly render their collective judgment after due deliberation.[4]
JUDGMENT RENDERED THROUGH NEGLIGENCE
Any judge who, by reason of inexcusable negligence or ignorance, shall render a manifestly unjust judgment
in any case submitted to him for decision. (Art. 205)
Negligence and ignorance are inexcusable if they imply a manifest injustice which cannot be explained by a
reasonable interpretation.[5]
UNJUST INTERLOCUTORY ORDER
Any judge who shall knowingly render an unjust interlocutory order or decree; or he shall have acted by
reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly
unjust. (Art. 206)
A court order is interlocutory in character if it is provisional and leaves substantial proceeding to be had in
connection with its subject.  The word “interlocutory” refers to something intervening between the commencement
and the end of a suit which decides some point or matter but is not a final decision of the whole controversy.[6]
MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE
Any judge guilty of malicious delay in the administration of justice. (Art. 207)
The elements are (1) there is unreasonable delay in the disposition of the case far beyond the period mandated by
law, and (2) the judge was actuated with malice, or with deliberate intent to prejudice a party in the case.[7]
PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE
Any public officer or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain
from instituting prosecution for the punishment of violators or the law, or shall tolerate the commission of
offenses. (Art. 208)
Malice is an integral element.  Lack of zeal or any delay in the performance of duties does not constitute the crime.
[8] An agent of a person in authority charged with the apprehension and investigation of a crime is an integral part
of the prosecution of offenses.[9]
BETRAYAL OF TRUST BY AN ATTORNEY, SOLICITOR; REVELATION OF SECRETS
Any attorney-at-law or solicitor who, by any malicious breach of professional duty or inexcusable negligence
or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his
professional capacity; or having undertaken the defense of a client or having received confidential
information from said client in a case, shall undertake the defense of the opposing party in the same case,
without the consent of his first client. (Art. 209)
DIRECT BRIBERY
The elements are:
1. Offender is a public officer.
Public officers or 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 of the Philippines, 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.[10]
2. He receives personally or thru another, gifts or presents or accepted offers or promises.
3. For the purpose of committing any of the following:
a. Agreeing to perform or performing an act pertaining to the duties of the office which constitute a crime.
b. Accepting a gift in consideration of the execution of an act which does not constitute a crime.
c. Abstaining from the performance of official duties.
4. Such act relates to the exercise of official duties. (Art. 210)
As a rule, bribery cannot be committed by a private person.  However, a private person to whom the custody of a
prisoner has been entrusted who allows him to escape because of a bribe is guilty not only of infidelity in the
custody of prisoners (Art. 225) but also of bribery because he is discharging a public function.

The act need not be actually committed.  Mere agreement to execute the act is sufficient. (US v. Alban, 4 Phil. 363) 
This refers to the first kind of direct bribery, in (a) above.  As regards the second kind (b), mere agreement to
execute the act does not suffice.  It is enough that bribe money be accepted in consideration of the performance of an
act in connection with the execution of official duties. (People v. Suarez, [CA] 03618, July 1, 1968)

The act agreed upon to be performed or committed must pertain to the discharge of official duties; otherwise estafa
and not bribery will be committed. (US v. Jader, 1 Phil. 297)

In bribery, the person arrested has committed a crime and he is threatened to give money so as not to be prosecuted;
it is robbery if the person arrested has not committed crime. (US v. Flores, 19 Phil. 178)  In bribery, the transaction
generally is mutual and voluntary; in robbery, the transaction is neither voluntary nor mutual but consummated by
the use of force or intimidation. (People v. Francisco, 45 Phil. 819)

INDIRECT BRIBERY
Any public officer who shall accept gifts offered to him by reason of his office. (Art. 211)
It is not necessary that the public officer should do any particular act or even promise to do an act as it is enough that
he accepts gifts offered to him by reason of his office. (Victoriano v. Alvior, Adm. Matter No. 1597, March 1,
1978)  The gift is made to anticipate a favor from the public officer in connection with his official duties or to
reward past favors in connection with official duties. (Q3, 1993 Bar)

QUALIFIED BRIBERY
If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an
offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any
offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted.  If it is the
public officer who asks or demands such gift or present, he shall suffer the penalty of death. (Art. 211-A, as
added by RA 7659)
CORRUPTION OF PUBLIC OFFICIALS
Any person who shall have made the offers or promises or given gifts or presents in direct or indirect
bribery. (Art. 212) (Q3, 1993 Bar)
IMMUNITY FROM PROSECUTION TO GIVERS OF BRIBES (PD 749, July 18, 1975
Any person who voluntarily gives information about any violation of Articles 210, 211, and 212 of the RPC; RA
3019, as amended; provisions of NIRC and Section 3604 of Tariff and Customs Code; and other laws, rules and
regulations punishing acts of graft, corruption and other forms of official abuse; and who willingly testifies against
any public official or employee for such violation shall be exempt from prosecution or punishment xxx.   This
immunity may be enjoyed by such informant or witness notwithstanding that he offered or gave the bribe or gift to
the public official or is an accomplice for such gift or bribe-giving.

The following conditions must concur:

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.

FORFEITURE IN FAVOR OF THE STATE ANY PROPERTY UNLAWFULLY ACQUIRED BY PUBLIC

OFFICER (RA 1379, June 18, 1955)
If the public officer has acquired during his incumbency an amount of property manifestly out of proportion to his
salary and to his other lawful income, said property is presumed prima facie to have been unlawfully acquired.
A taxpayer may file the complaint before the city or provincial fiscal who shall conduct a previous inquiry similar to
preliminary investigations in criminal cases.  The petition shall not be filed within one year before any general
election or within 3 months before any special election.  The resignation, dismissal or separation of the public
officer from his office shall not be a bar to the filing of the petition.

Property which may be considered as unlawfully acquired, though not in the name of respondent, at the time
of the filing of the forfeiture, shall include:
1. Property unlawfully acquired, but its ownership is concealed by its being recorded in the name of, or held by, the
respondent’s spouse, ascendants, descendants, relatives or any other person.

2. Property unlawfully acquired, but transferred by him to another person(s).

Property donated to the respondent during his incumbency, unless he can prove to the satisfaction of the court that
the donation is lawful, shall be deemed to include property unlawfully acquired. (Sec. 1[b])

The forfeiture provided in the Acts is in the nature of a penalty. (Cabal v. Kapunan, Jr., 6 SCRA 1059)  The
proceeding, however, is not a criminal proceeding because the procedure leading to forfeiture is that provided in a
civil action.  The proceeding may be either civil or criminal in nature, and may be in rem or in personam. (Almeda,
Sr. v. Perez, 5 SCRA 970)
FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES
Acts Punished:
1. Fraud committed by a public officer, who in his official capacity, enters into an agreement with a person to
defraud the government regarding:
a. Furnishing of supplies.

b. Making of contracts.

c. Settlement of accounts relating to public property or funds.

2. Illegal exactions committed by a public officer in charge of collection of taxes, licenses, fees and other imposts
by:
a. Demanding an amount different or larger than that due.

b. Failing to issue receipt for money collected.

c. Collecting as payment objects of a nature different from that provided by law. (Art. 213)

The crime is committed by mere agreement as long as the purpose is to defraud the government.   The first kind of
illegal exaction is committed by a mere demand for the payment of larger sums than that authorized by law.  Even if
the public officer does not receive the excessive amount or sums demanded, the crime is already committed.   Thus,
if the said sums are received without demanding the same, the felony is not committed; but if the same were given
as a sort of a gift or gratification because of his office, indirect bribery may be committed. (Cuello Calon, II, pp.
418-419)

If the municipal treasurer collected greater fees, by means of deceit and he misappropriates the difference between
the fees collected and the legal fees, estafa, not illegal exaction, is committed. (US v. Lopez, 479)

MALVERSATION OF PUBLIC FUNDS OR PROPERTY

Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or malversation of such funds or property.
The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal uses. (Art. 217, as amended.) (Q16, 1994 Bar)
The elements are:
1. Offender is a public officer.

2. By reason of his duties he is accountable for public funds or property, and

3. Such public officer shall:

a. Appropriate public funds or property.

b. Take or misappropriate the same.
c. Consent, or through abandonment or negligence, shall permit any other person to take such public funds or
property, wholly or partially.
d. Otherwise be guilty of the misappropriation or malversation. (Q11, 1999 Bar)
Malversation may be committed either through positive act of misappropriation of public funds or property or
passively through negligence by allowing another to commit such misappropriation.  Nonetheless, all that is
necessary to prove both acts are the following:

1.That the defendant received in his possession public funds or property.

2.That he could not account for them and did not have them in his possession when audited, and
3.That he could not give satisfactory or reasonable excuse for the disappearance of said funds or
property. (Meneses v. Sandiganbayan, 100625, May 20, 1994)
An accountable officer may be convicted of Malversation even if there was no direct evidence of misappropriation,
when:

1. The shortage in his account is indubitably established, and

 2. He could not give a satisfactory or reasonable explanation or excuse for the disappearance of said
funds or property.
This is because of the prima facie presumption that he has put the missing funds or property to his personal use.
Thus, granting a “vale” is not a defense and the same constitutes malversation. (Cabello v. Sandiganbayan, 197
SCRA 94)

But the presumption, being merely prima facie, may be rebutted and destroyed by competent proof that the
accountable officer has not in truth put the funds or property in question to personal use. (Alvarez v. Sandiganbayan,
201 SCRA 557; Agullo v. Sandiganbayan, 132926, July 20, 2001)

The “accountable officer” contemplated under Art. 217 punishing Malversation is not limited to bonded public
officers. (Quinon v. People, 136462, September 19, 2002)  The nature of duties of the public officer and not the
importance of his position is the controlling factor.  He may be a mere clerk but if he receives money or property
belonging to the government for which he is bound to account, then he is an accountable public officer. (US v.
Velasques, 32 Phil. 159)

Public property includes checks, letters of credit, negotiable notes, deeds, objects of art, and any personal property
whether fungible or non-fungible.  Thus, a librarian who misappropriates public books or paintings which are public
property is guilty of malversation. (Cuello Calon, II, p. 405)

Malversation can be committed through negligence, as when a police evidence custodian transports a P 5 Million
worth of “shabu” without escort and allegedly “loses” the same to hold-uppers. (Diego v. Sandiganbayan, 139282,
September 4, 2000)

A private person cannot commit malversation except in two instances:

1. If such private person in any capacity whatever has charge of any national, provincial, or
municipal funds, revenues or property. (Art. 222)
2. If such private person takes a direct participation in the commission of the malversation of public
funds or property by a public officer or cooperates in the commission of the same, he is guilty as a
co-principal. (US v. Ponte, 20 Phil. 379)
Private funds or property may also be the subject of malversation.  Article 222 provides that malversation may be
committed upon property placed in the custody of public officers by reason of their office even if such property
belongs to a private individual. (People v. De la Serna, [CA] 40 O.G. Supp. 12, p. 159) So, funds of the Red Cross
or Boy Scouts, although not strictly public funds were held to become impressed with the character of public funds
when they were received by the officer with the obligation to account for them.  However, where a Municipal
Treasurer is also the treasurer of a charity ball of the church and holds funds is not one contemplated in Article 222
because it was not placed in his custody by reason of his office. (Q2, 1990 Bar)

Where a municipal treasurer cashed a private check with public money and the check was dishonored, malversation
is committed. (People v. Carpio, 01092, Jan. 31, 1963) (Q11, 1999 Bar)

While malversation may be committed thru negligence, not all abandonment or negligence constitutes malversation
but only such that approximates intent and malice.  Thus, a defendant who, as municipal treasurer, had a large stock
of rice under his charge, and who, in goof faith, sold them on credit as he needed swift disposal, cannot be liable for
malversation thru negligence. (Viada, IV, pp. 498-499)  Good faith or honest mistake is a defense in malversation.
(US v. Elvina, 24 Phil. 230)  But a postmaster who did not return the warrants, cash and checks in the combination
safe as a consequence of which they were stolen, was held guilty of malversation through negligence. (People v.
Luntao, 50 OG 1182) Further, in Diego v. Sandiganbayan, 139282, September 4, 2000,the Supreme Court convicted
a police officer for Malversation through negligence for the loss of shabu to armed men, when he took upon himself
to transport the subject shabu without police escort knowing fully well of the risks involved.
Demand is not necessary to constitute malversation.  It is merely a rule of evidence and no more, since, without
demand, affirmative proofs must be presented to show actual malversation but the moment it is shown that the
accountable officer does not have the funds where he says he has them, malversation is committed. (People v.
Tolentino, 69 Phil. 715)  Damage to the government is not essential, not being an element of the offense.   It is
immaterial that the accused is solvent or is bonded by an amount bigger than that malversed. (Cuello Calon, II, p.
404)  In malversation, good faith or honest mistake is a defense. (US v. Borlongan, 21 Phil. 232)

Distinction:
Malversation Estafa

1. By private person or public officer who acts in private

1. Committed by accountable public officer.
capacity.

2. Deals with public property. 2. Private property.

3. Maybe committed without personal misappropriation. 3. Committed by personal appropriation only.

If a private person in conspiracy with an accountable public officer is accused of malversation and the public officer
is acquitted, the private person maybe convicted for the crime of estafa as such offense is necessarily included in
malversation. (People v. Salazar, 61 OG 5913)  A person charged under an information for malversation of public
funds can be convicted of estafa, if the funds are in fact private funds, the reason being that estafa is included as a
lesser, cognate  offense in relation to malversation. (Delfin v. CA, 21022, Feb. 27, 1965)

Repeated misappropriation of public funds although made on different occasions constitutes one crime only if the
public funds were placed in the custody of the offender for one purpose, the reason being that said acts of
malversation are the consequence of a single criminal intent. (Decs., Sup. Ct. of Spain, June 26, 1930)

Return or reimbursement of the funds missing or misappropriated is a mitigating circumstance if promptly made.
(People v. Velasquez, 79 Phil. 98)  Refund of the money misappropriated made on the same day it was converted
does not exempt the offender from criminal liability. (US v. Reyes, 14 Phil. 413)  However, if the restitution was
made immediately, under vehement protest against an imputation of malversation and without leaving the office, he
may not be criminally liable. (Q11, 1999 Bar)  In malversation, the restitution of the amount malversed or swindled,
after the commission of the crime, affects only the civil liability of the offender, but does not extinguish his criminal
liability or relieve him from the penalty prescribed by law for the offense committed, because the crime is a public
office against the people of the Philippines that must be prosecuted and penalized by the Government on its own
motion, though complete reparation should have been made of the damage suffered by the offended government.
(OCA v. Soriano, 136 SCRA 461

A public officer charged with malversation may not be validly convicted of illegal use of public funds because the
latter crime is not necessarily included nor does it necessary include the crime of malversation.  It is evident that the
elements of the two crimes are entirely distinct and different from the other, such that in an information charging an
officer of malversation of public funds, he cannot be convicted of technical malversation, one not being included in
the other and vice versa. (Parungao v. Sandiganbayan, 197 SCRA 173)  (Q5, 1996 Bar)

ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY

The elements are:
1. Offender is an accountable public officer.

2. He applies public funds or property under his administration to some public use.
3. The public use for which the public funds or property were applied is different from the purpose for which they
were originally appropriated. (Art. 220)

This felony is known as technical malversation and is a penal sanction to the constitutional provision that no money
shall be paid out of the treasury except in pursuance of an appropriation made by law.  Damage is not an essential
element and the offender derives no benefit.  To constitute this crime, there must be a law or ordinance appropriating
public funds or property for a specific purpose which the accused has violated. (People v. Montemayor, 17449,
August 30, 1962)
INFIDELITY IN THE CUSTODY OF PRISONERS THRU CONNIVANCE
The elements are:
1. The offender is a public officer.

2. He has under his custody or charge a prisoner serving sentence by final judgment or a detention prisoner.

3. He connives with or consent to the escape of such prisoner. (Art. 223)

Without connivance in the escape of the prisoners on the part on the part of the person in charge, this crime is not
committed.  Leniency or laxity in the performance of duties is not necessary infidelity. (People v. Evangelista, 38
OG 158)  However, relaxation of a prisoner is considered infidelity, thus making the penalty ineffectual; although
the convict may no have fled (US v. Bandino, 9 Phil. 459) it is still violative of the provision.  It also includes a case
when the guard allowed the prisoner, who is serving a six-day sentence in the municipal jail, to sleep in the Chief of
Police house and eat there. (People v. Revilla) (Q14, 1996 Bar; Q11, 1997 Bar)

INFIDELITY IN THE CUSTODY OF PRISONERS THROUGH NEGLIGENCE

The elements are:
1. Offender is a public officer.

2. He is charged with the conveyance or custody of the escaping prisoner.

3. The escape occurs thru his negligence. (Art. 224) (People v. Reyes, 3 CA Reports 198)

Not every mistake is negligence under this Article.  There must have been definite laxity amounting to deliberate
non-performance.  This is the distinction between neglect that is properly dealt with administratively, and neglect
that gives rise to the crime of infidelity in the custody of prisoners through negligence. (People v. Flosa, 47 OG
2452)

[1] Laurel v. Desierto, 145368, April 12, 2002

[2] Sec. 203, RPC
[3] Pabalan v. Guevara, 74 SCRA 53; Heirs of the late Justice JBL Reyes v. Demetria, CA-01-31, Jan. 23, 2002
[4] In re:  Atty. Laureta, 63635, March 12, 1987
[5] In re:  Climaco, 55 SCRA 107
[6] De la Cruz v. Paras, 69 SCRA 556
[7] Magdamo v. Pahimulin, 73 SCRA 110
[8] Dec. of Sup. Ct. of Spain, June 19, 1892
[9] Q6,1992 Bar; Q20, 1991 Bar
[10] Art. 203, RPC
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