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
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;
2.
Qualified Bribery
III. Direct Bribery: defined and penalized under Article 310. Its
elements are as follows:
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
B. Second Mode: The act is not a crime but is unjust or the doing
is improper or unfair
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.
6. Examples:
(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.
V. Common Principles:
A. Illustrations:
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
II. Principles.
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.
II. R.A 3019 or The Anti Graft and Corrupt Practices Act
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 nonpayment of a debt
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.
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)
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)
Art. 213. Frauds Against the Public Treasury and Similar Offenses
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.
A. Elements:
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:
2. By a private person :
1. Public properties
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
1. Intentional Acts:
(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
malversation)
or
through
negligence
culpable
(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
G. Effect of
Fund/Property
Restitution
or
Replacement
of
the
Missing
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 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
C. Persons liable:
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
E. Meaning of Escape
F. Kinds of Infidelity
2.
3.
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
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
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)
3.
If the accused is a private person, the crime would be under
the article on Unlawful Means of Publication
4.
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