Title 7-Rpc 2 Reyes-Pub Off

Title Seven
CRIMES COMMITTED BY
PUBLIC OFFICERS
Chapter One
PRELIMINARY PROVISIONS
A r t . 2 0 3 . Who are public officers. — F o r t h e p u r p o s e o f

applying the provisions of this and the preceding titles of
the hook, any person who, by direct provision of the law,
popular election or appointment by competent authority,
shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in
said G o v e r n m e n t or in a n y of its b r a n c h e s public duties as
a n e m p l o y e e , a g e n t , o r s u b o r d i n a t e official, o f a n y r a n k o r
class, shall be d e e m e d to be a p u b l i c officer.
The term "public officers" embraces every public servant from the
highest to the lowest.
The definition is quite comprehensive, embracing as it does, every
public servant from the highest to the lowest. For the purposes of the Penal
Code, it obliterates the standard distinction in the law of public officers
between "officer" and "employee." (Maniego vs. People, 88 Phil. 494)
Requisites:
To be a public officer, one m u s t be —
(1) Taking part in the performance of public functions in the
Government, or
372
WHO ARE PUBLIC OFFICERS Art. 203
Performing in said Government or in 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 m u s t be —
a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.
One appointed as laborer in the government is not a public officer.

That a government laborer is not a public officer may be inferred from
the rulings of the Supreme Court in the cases of Maniego vs. People and
People vs. Paloma, infra.
But temporary performance of public functions by a laborer makes

him a public officer.
While it is true that the appointment of the accused was that of a
laborer in the Bureau of Posts, nevertheless, his duties were that of a sorter
and filer of money orders. He w a s appointed by the Acting Director as
sorter and filer of money orders and the sorting and filing of money orders
is obviously a public function or duty. (Maniego vs. People, 88 Phil. 494;
People vs. Paloma, 40 O.G., Supp. 10, 2087)
A mere emergency helper of the Bureau of Treasury on a daily wage
basis, without any appointment as janitor or messenger, is a public officer
having been entrusted with the custody of official document. (People vs.
Bulangao, 40 O.G. 2087; People vs. Ireneo, C.A., 53 O.G. 2827)
373
Chapter Two
MALFEASANCE AND MISFEASANCE
IN OFFICE
What are the crimes classified under malfeasance and misfeasance

in office?
The crimes classified under malfeasance and misfeasance in office
are:
(1) Knowingly rendering unjust judgment. (Art. 204)
(2) Rendering judgment through negligence. (Art. 205)
(3) Rendering unjust interlocutory order. (Art. 206)
(4) Malicious delay in the administration of justice. (Art. 207)
(5) Dereliction of duty in prosecution of offenses. (Art. 208)
(6) Betrayal of trust by an attorney or solicitor — revelation of
secrets. (Art. 209)
(7) Direct bribery. (Art. 210)
(8) Indirect bribery. (Art. 211)
Note:
Nos. 1, 2, 3 and 4 are misfeasances in office that a judge can commit.
Nos. 7 and 8 are malfeasances in office that a public officer can
commit.
No. 5 is nonfeasance.
Misfeasance, defined.
"Misfeasance" is the improper performance of some act which might
lawfully be done.
Malfeasance, defined.
"Malfeasance" is the performance of some act which ought not to be
done.
374
KNOWINGLY RENDERING UNJUST JUDGMENT Art. 204
Nonfeasance, defined.
"Nonfeasance" is the omission of some act which ought to be performed.

(Words & Phrases, Permanent Edition, No. 27)
Crimes under dereliction of duty.

They are those defined from Art. 204 to Art. 209.
S e c t i o n O n e . — D e r e l i c t i o n of d u t y
Art. 204. Knowingly rendering unjust judgment. — Any

judge w h o shall knowingly render an unjust judgment in
a n y c a s e s u b m i t t e d t o h i m for d e c i s i o n , s h a l l b e p u n i s h e d b y
1
prision mayor a n d p e r p e t u a l a b s o l u t e disqualification.
Elements:
1. That the offender is a judge;
2. That he renders a judgment in a case submitted to him for decision;
3. That the judgment is unjust;
4. That the judge knows t h a t his judgment is unjust.
Judgment, defined.
A judgment is the final consideration and determination of a court
of competent jurisdiction upon the matters submitted to it, in an action or
proceeding. (Ruling Case Law, Vol. 15, p. 569, cited in Gotamco vs. Chan
Seng, et al., 46 Phil. 542)
Unjust judgment, defined.

An unjust judgment is one which is contrary to law, or is not supported
by the evidence, or both.
When rendered knowingly.

An unjust judgment is rendered knowingly when it is made deliberately
and maliciously.
'See Appendix "A," Table of Penalties, No. 19.
375
Art. 204 KNOWINGLY RENDERING U N J U S T JUDGMENT
"Knowingly" means consciously, intelligently, willfully, or intentionally.

(Black's Law Dictionary, Fifth ed., 784)
Source of unjust j u d g m e n t .
The source of unjust judgment may be either (a) error or (b) ill-will or
revenge, or (c) bribery.
Bad faith is the g r o u n d of liability.

An unjust judgment is one which is contrary to law or is not supported
by the evidence, or both. The source of an unjust judgment may be error or
ill-will. There is no liability at all for a mere error. It is well settled that a
judicial officer, when required to exercise his judgment or discretion, is not
liable criminally for any error which he commits, provided he acts in good
faith. Bad faith is therefore the ground for liability. If in rendering judgment,
the judge fully knew that the same w a s unjust in the sense aforesaid, then
he acted maliciously and m u s t have been actuated and prevailed upon by
hatred, envy, revenge, greed, or some other similar motive. As interpreted
by Spanish courts, the term 'knowingly' m e a n s sure knowledge, conscious
and deliberate intention to do an injustice. (Heirs of Yasin vs. Felix, A.M.
No. RTJ-94-1167, December 4, 1995)
There m u s t be e v i d e n c e that the j u d g m e n t is unjust — it c a n n o t

be p r e s u m e d .
Thus, the mere fact that the judge promised to the other party that
he would decide the case against the complainant does not prove that the
judgment is unjust. It is possible that such judgment is supported by the
facts and the law.
J u d g m e n t m u s t be contrary to law a n d not s u p p o r t e d by the

evidence.
In order that a judge m a y be held liable for knowingly rendering an

unjust judgment, it m u s t be shown beyond doubt that the judgment is unjust
in the sense that is contrary to law, or is not supported by the evidence,
and that the same was made with conscious and deliberate intent to do an
injustice. (Sta. Maria vs. Ubay, 87 SCRA 179)
There m u s t b e e v i d e n c e that t h e j u d g e k n e w that the j u d g m e n t i s

unjust.
To hold a judge liable for knowingly rendering an unjust decision, the

rule requires that judgment should be rendered by the judge with conscious
376
JUDGMENT RENDERED THROUGH NEGLIGENCE Art. 205
and deliberate intent to do an injustice. Absence of any positive evidence on

record that the respondent judge rendered the judgment in question with
conscious, and deliberate intent to do an injustice, the charge m u s t fail (Sta.
Maria vs. Ubay, ibid.)
A justice of the peace, charged with knowingly rendering unjust
judgment, was acquitted because it did not appear that the decision he
rendered was unjust and that it w a s known to him to be unjust. (U.S. vs.
Gacutan, 28 Phil. 128)
Does not apply to members of a collegiate court.

Respondents should know that the provisions of Art. 264 as to
"rendering knowingly unjust judgment" refer to an individual judge who
does so "in any case submitted to h i m for decision" and even then, it is
not the prosecutor who would pass judgment on the "unjustness" of the
decision rendered by h i m but the proper appellate court with jurisdiction
to review the same, either the Court of Appeals and/or the Supreme Court.
Respondents should likewise know that said penal article has no application
to the members of a collegiate court such as this Court or its Divisions
who reach their conclusions in consultation and accordingly render their
collective judgment after due deliberation. (In Re: Wenceslao Laureta, G.R.
No. 68635, March 1 2 , 1 9 8 7 ; In Re: Joaquin T. Borromeo, A M . No. 93-7-696-
0, February 2 1 , 1995)
A r t . 2 0 5 . Judgment rendered through negligence. — A n y

judge who, by reason of inexcusable negligence or ignorance,
shall render a manifestly unjust judgment in any case
s u b m i t t e d t o h i m f o r d e c i s i o n s h a l l b e p u n i s h e d b y arresto
mayor2 a n d t e m p o r a r y s p e c i a l d i s q u a l i f i c a t i o n .
3
Elements:
1. That the offender is a judge.
2. That he renders a judgment in a case submitted to him for decision.
3. That the judgment is manifestly unjust.
4. That it is due to his inexcusable negligence or ignorance.
2
See Appendix "A," Table of Penalties, No. 1.
377
Art. 206 UNJUST INTERLOCUTORY ORDER
What is a "manifestly unjust judgment"?

It is so manisfestly contrary to law, that even a person having a meager
knowledge of the law cannot doubt the injustice. (Albert)
Abuse of discretion or mere error of judgment, not punishable.

Although there may be abuse of discretion in issuing an order, it does
not necessarily follow that there is bad faith or that said abuse of discretion
signifies ignorance of the law on the part of a judge. Abuse of discretion by
a trial court does not necessarily mean ulterior motive, arbitrary conduct or
willful disregard of a litigant's rights. (Evangelista vs. Hon. Baes, 61 SCRA
475)
Mere error of judgment cannot serve as basis for a charge of knowingly
rendering an unjust judgment, where there is no proof or even allegation
of bad faith, or ill motive, or improper consideration. (Yaranon vs. Judge
Rubio, 66 SCRA 67)
A r t . 2 0 6 . Unjust interlocutory order. — A n y j u d g e w h o

shall knowingly render an unjust interlocutory order
o r d e c r e e s h a l l s u f f e r t h e p e n a l t y o f arresto mayor i n i t s
4 5
minimum period and suspension; but if he shall have acted
by reason of inexcusable negligence or ignorance and the
interlocutory order or decree be manifestly unjust, the
6
penalty shall be suspension.
Elements:
2. That he performs any of the following acts:
a. knowingly renders unjust interlocutory order or decree; or
b. renders a manifestly unjust interlocutory order or decree through
inexcusable negligence or ignorance.
4
'See Appendix "A," Table of Penalties, No. 3 8 .
"See Appendix "A," Table of Penalties, No. 3 8 .
378
MALICIOUS DELAY IN THE ADMINISTRATION Art 207
OF JUSTICE
Interlocutory order, defined.

An interlocutory order is an order which is issued by the court between
the commencement and the end of a suit or action and which decides some
point or matter, but which, however, is not a final decision of the matter in
issue. (Bouvier's Law Dictionary)
The test in determining whether an order or judgment is interlocutory
or final is: "Does it leave something to be done in the trial court with respect
to the merits of the case? If it does, it is interlocutory; if it does not, it is
final." (Kapisanan ng m g a Manggagawa sa Maynila Railroad Company vs.
Yard Crew Union, et al., 109 Phil. 1143, citing Moran's Comments on the
Rules of Court, 1952 Ed., Vol. I, p. 41)
Example:
An order granting preliminary injunction or an order appointing a
receiver is an interlocutory order.
A r t . 2 0 7 . Malicious delay in the administration of justice.

— T h e p e n a l t y o f prision correccional i n i t s m i n i m u m p e r i o d
7
shall be imposed u p o n any judge guilty of malicious delay in

the administration of justice.
Elements:
2. That there is a proceeding in his court;
3. That he delays the administration of justice;
4. That the delay is malicious, that is, the delay is caused by the judge
with deliberate intent to inflict damage on either party in the case.
Mere delay without malice is not a felony under this article.

Mere delay without malice in holding trials or rendering judgments
does not necessarily bring the judge within the operation of this law.
7
379
Art 208 PROSECUTION OF OFFENSES; NEGLIGENCE
AND TOLERANCE
A r t . 208.Prosecution of offenses; negligence and tolerance.

— T h e p e n a l t y of prision correccional i n i t s m i n i m u m p e r i o d 8
9
a n d s u s p e n s i o n shall b e i m p o s e d u p o n a n y public officers
o r officer o f t h e law, w h o , i n d e r e l i c t i o n o f t h e d u t i e s o f h i s
office, s h a l l m a l i c i o u s l y r e f r a i n f r o m i n s t i t u t i n g p r o s e c u t i o n
for t h e p u n i s h m e n t o f v i o l a t o r s o f t h e l a w , o r shall t o l e r a t e
the commission of offenses.
Acts punishable:
1. By maliciously refraining from instituting prosecution against
violators of the law.
2. By maliciously tolerating the commission of offenses.
The title of the article u s e s the word "negligence" which should not be
understood merely as lack of foresight or skill. The word "negligence" simply
means "neglect of the duties of his office by maliciously failing to move the
prosecution and punishment of the delinquent." (U.S. vs. Mendoza, 23 Phil.
194) Malice is an important element in this article.
Elements of dereliction of duty in the prosecution of offenses.

1. That the offender is a public officer or officer of the law w h o h a s 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 (People vs. Rosales, G.R. No. 42648) 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.
Who can be the offenders in Art. 208?

The offender under Art. 208 is either (a) a public officer, or (b) an
officer of the law.
The phrase "officer of the law" includes all those who, by reason of
the position held by them, are duty-bound to cause the prosecution and
punishment of the offenders. (Albert)
"See Appendix "A," Table of Penalties, No. 11.

'See Appendix "A." Table of Penalties, No. 38.
380
DERELICTION IN THE PROSECUTION OF OFFENSES Art. 208
The term "public officer" extends to officers of the prosecution depart-

ment, whose duty is to institute criminal proceedings for felonies upon being
informed of their perpetration. (Albert)
There must be a duty on the part of the public officer to prosecute

or to move the prosecution of the offender.
Note that Art. 208 u s e s t h e phrase "who, in dereliction of the duties of
his office." Hence, the public officer liable under Art. 208 must have a duty
to prosecute or to move the prosecution of the violation of the law.
Thus, the following have such duty:
1. Chief of police. (People vs. Rosales, G.R. No. 42S48)
2. Barrio lieutenant. (U.S. vs. Mendoza, 23 Phil. 194)
A chief of police who, in breach of official duty, failed to prosecute a
j u e t e n g collector, in that he failed to file the corresponding criminal action
against the latter who w a s caught possessing jueteng lists, was held liable
under Art. 208. (People vs. Mina, 65 Phil. 621)
A barrio lieutenant (now barrio captain) who, in neglect of his duty,
fails to move the prosecution of, and punishment for, a crime of arson, of
which he is informed, would, in case the alleged crime was afterwards duly
proven, be guilty of prevarication. (U.S. vs. Mendoza, 23 Phil. 194)
"Shall maliciously refrain from instituting prosecution."

Thus, a fiscal who, knowing that the evidence against the accused
is more than sufficient to secure his conviction in court, drops the case, is
liable and may be punishable under Art. 208.
But the fiscal or the city attorney, as prosecuting officer, is under no
compulsion to file the corresponding information based upon a complaint,
where he is not convinced that the evidence gathered or presented would
warrant the filing of an action in court. Of course, the power of the City
Attorney or prosecuting fiscal in connection with the filing and prosecution
of criminal charges in court is not altogether absolute; but the remedy is
the filing with the proper authorities or court of criminal or administrative
charges if the alleged offended parties believe that the former maliciously
refrained from instituting actions for the punishment of violators of the law.
(Vda. de Bagatua, et al. vs. Revilla and Lomhos, 104 Phil. 392)
"Shall tolerate the commission of offenses."

A approached the Chief of Police of a town and asked him not to raid
his (A's) gambling house for two days. Because A was his friend, the Chief
381
Art. 209 BETRAYAL OF TRUST BY AN ATTORNEY
of Police even instructed his policemen not to raid that house for two days.
Gambling games were played in A's house. In this case, the Chief of Police
is liable under Art. 208.
"Maliciously" signifies deliberate evil intent.

The offender must act with malice.
Thus, the municipal president who held cockfights on the days not
authorized by law, to raise funds for the construction of a ward in the
provincial hospital, was not liable under Art. 208 for the word "maliciously"
means that the action complained of must be the result of a deliberate evil
intent and does not cover a mere voluntary act. The accused w a s convicted
only of illegal cockfighting. (People vs. Malabanan, 62 Phil. 786)
A dereliction of duty caused by poor judgment or honest mistake is
not punishable.
Crime must be proved before conviction for dereliction.

The crime committed by the law-violator m u s t be proved first. If the
guilt of the law-violator is not proved, the person charged with dereliction of
duty under this article is not liable. (U.S. vs. Mendoza, supra)
Liability of public officer who, having the duty of prosecuting the

offender, harbored, concealed, or assisted in the escape of the
latter, is that of the principal in the crime of dereliction of duty in
the prosecution of offenses.
Such public officer is not merely an accessory. He is a principal in the
crime defined and penalized in Art. 208.
Not applicable to revenue officers.

Officers, agents or employees of the Bureau of Internal Revenue who,
having knowledge or information of a violation of the Internal Revenue
Law, fail to report such knowledge or information to their superiors, shall
be punished under that law, not under this provision.
A r t . 2 0 9 . Betrayal of trust by an attorney or solicitor —

Revelation of secrets. — I n a d d i t i o n t o t h e p r o p e r a d m i n i s -
t r a t i v e a c t i o n , t h e p e n a l t y o f prision correccional i n i t s
1 0
m i n i m u m period, o r a fine r a n g i n g f r o m 2 0 0 t o 1,000 p e s o s , o r
,0
382
BETRAYAL OF TRUST BY AN ATTORNEY Art. 209
both, shall be imposed u p o n any attorney-at-law or solicitor

(procurador judicial) w h o , b y a n y m a l i c i o u s b r e a c h o f
professional duty or of inexcusable negligence or ignorance,
shall prejudice his client, or reveal any of the secrets of the
latter learned by him in his professional capacity.
The s a m e penalty shall be i m p o s e d u p o n any attorney-at-

l a w o r s o l i c i t o r (procurador judicial) w h o , h a v i n g u n d e r t a k e n
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
c o n s e n t o f h i s first client.
Acts punished as betrayal of trust by attorney.

1. By causing damage to his client, either (1) by any malicious breach of
professional duty, (2) by inexcusable negligence or ignorance.
Note: W h e n the attorney acts (1) with malicious abuse of his
employment or (2) inexcusable negligence or ignorance, there must be
damage to his client.
2. By revealing any of the secrets of his client learned by him in his
professional capacity.
Note: D a m a g e is not necessary.
3. By undertaking the defense of the opposing party in the same case,
without the consent of his first client, after having undertaken
the defense of said first client or after having received confidential
information from said client.
Note: If the client consents to the attorney's taking the defense
of the other party, there is no crime.
There is no solicitor or procurador judicial under the Rules of Court.

A procurador judicial is a person who had some practical knowledge
of law and procedure, but not a lawyer, and was permitted to represent a
party in a case before an inferior court.
Under the Rules of Court, in the court of a justice of the peace, a party
may conduct his litigation in person, with the aid of an agent or friend or
with the aid of an attorney. (Sec. 34, Rule 138)
383
Art. 210 DIRECT BRIBERY
Section Two. — Bribery
A r t . 2 1 0 . Direct bribery. — A n y p u b l i c o f f i c e r w h o s h a l l
agree to perform an act constituting a crime, in connection
w i t h t h e p e r f o r m a n c e o f h i s official d u t i e s , i n c o n s i d e r a t i o n
o f a n y offer, p r o m i s e , gift o r p r e s e n t r e c e i v e d b y s u c h officer,
personally or t h r o u g h the m e d i a t i o n of another, shall suffer
t h e p e n a l t y o f prision mayor i n i t s m e d i u m a n d m a x i m u m
1 1
periods a n d a fine of n o t less t h a n t h e v a l u e of t h e gift a n d
not less t h a n t h r e e t i m e s t h e v a l u e of t h e gift in a d d i t i o n to
the penalty corresponding to the crime agreed upon, if the
same shall have b e e n committed.
I f t h e gift w a s a c c e p t e d b y t h e officer i n c o n s i d e r a t i o n
of the execution of an act w h i c h does not constitute a crime,
a n d t h e officer e x e c u t e d s a i d act, h e shall suffer t h e s a m e
penalty provided in the preceding paragraph; and if said act
shall n o t h a v e b e e n a c c o m p l i s h e d , t h e officer shall suffer t h e
p e n a l t i e s o f prision correccional i n i t s m e d i u m p e r i o d a n d a 1 2
f i n e o f n o t l e s s t h a n t w i c e t h e v a l u e o f s u c h gift.
If t h e object for w h i c h t h e gift w a s r e c e i v e d or p r o m i s e d
w a s t o m a k e the public officer refrain f r o m d o i n g s o m e t h i n g
w h i c h i t w a s h i s official d u t y t o d o , h e shall suffer t h e
p e n a l t i e s o f prision correccional i n i t s m a x i m u m p e r i o d to 1 3
prision mayor i n i t s m i n i m u m p e r i o d a n d a f i n e o f n o t l e s s
t h a n t h r e e t i m e s t h e v a l u e o f s u c h gift.
In addition to the penalties provided in the preceding

paragraphs, the culprit shall suffer the penalty of special
temporary disqualification.
The provisions contained in the preceding paragraphs

shall be m a d e applicable to assessors, arbitrators, appraisal
and claim commissioners, experts or a n y other p e r s o n s per-
f o r m i n g p u b l i c d u t i e s . (As amended by BJ*. Big. 871, approved
May 29,1985)
"See Appendix "A," Table of Penalties, No. 14

12
13
384
DIRECT BRIBERY Art. 210
Acts punishable in direct bribery:

A public officer commits direct bribery —
1. 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. 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. By agreeing to refrain, or by refraining, from doing something which
it is his official duty to do, in consideration of gift or promise.
Elements of direct bribery:

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

The definition of "public officers" in Art. 203 is quite comprehensive,
embracing as it does, every public servant from the highest to the lowest.
For the purpose of the Penal Code, it obliterates the standard distinction in
the law of public officers between "officer" and "employee."
For the purpose of punishing bribery, the temporary performance of
public functions is sufficient to constitute a person a public officer. (Maniego
vs. People, 88 Phil. 494; People vs. Paloma, 40 O.G., Supp. 10, 2087; People
vs. Bulangao, 40 O.G. 2087)
Applicable to "assessors, arbitrators, appraisal and claim commis-

sioners, experts."
The provisions of Art. 210 are made applicable to assessors, arbitrators,
appraisal and claim commissioners, experts or any other persons performing
public duties.
385
"Or any other persons performing public duties."

Does this phrase cover a private individual who, in consideration of a
sum of money given to him, released a person under arrest and entrusted
to his custody? It is believed that it is not applicable, because the additional
penalty of special temporary disqualification for bribery has no practical
application to a private person.
But a private individual may be disqualified from holding the office
of assessor, arbitrator, appraisal and claim commissioner, or handwriting
expert.
Second element. — Gift is received personally or thru interme-

diary.
The gift or present may be received by the public officer himself or
through a third person.
Gift is either (1) voluntarily offered by a private person, or (2)

solicited by a public officer.
Bribery exists, not only (1) w h e n the gift is offered voluntarily by a
private person, or (2) when the gift is solicited by a public officer and the
private person voluntarily delivers it to the public officer, but also (3) w h e n
the gift is solicited by a public officer, as the consideration for his refraining
from the performance of an official duty and the private person gives the gift
for fear of the consequences which would result if the officer performs his
functions. (Dec. of Nov. 3, 1879, Sup. Ct. of Spain, cited in People vs. Sope,
75 Phil. 810)
Gift or present need not be actually received by the public officer,

as an accepted offer or promise of gift is sufficient.
In the 1st paragraph of Art. 210, the law u s e s the phrase "in
consideration of any offer, promise," etc. Hence, a promise of gift to a public
officer who accepts such promise is sufficient.
But in the 2nd paragraph of Art. 210, the law uses the phrase "the gift
was accepted by the officer."
The words "offer" and "promise" are not used in the 2nd paragraph.
The offer of gift or promise must be accepted by the public

officer.
In case there is only an offer of gift or a promise to give something, the

offer or the promise must be accepted by the public officer.
386
If the offer is not accepted by the public officer, only the person offering
the gift or present is criminally liable for attempted corruption of public
officer under Art. 212 in relation to Art. 6. The public officer is not liable.
The gift or present must have a value or be capable of pecuniary

estimation.
The thing offered or accepted m a y be money, property, services
or anything else of value. It m u s t be of some value, but any value is
sufficient.
An agreement to reinstate a friend of a mayor who was dismissed,
provided the mayor would execute a certain act in connection with his official
duty, was held to be a bribe. (People ex rel Dickinson vs. Van De Carr, 87
App. Div. 386, 84 N.Y.S. 4 1 , 18 N.Y. Cr. 31)
But under the Revised Penal Code, the fine which is one of the
penalties imposed for the commission of direct bribery is based on the value
of the gift. The reinstatement of the friend of the mayor seems to be not
capable of pecuniary estimation.
Third element. — The three ways of committing direct bribery.

The act to be performed by the public officer must constitute a crime
in the first form of direct bribery.
Viada, volume 2, page 642, says that to constitute the crime of bribery
(of the first form) as provided in this article, four things are necessary:
(1) That the defendant be a public officer according to the meaning
of this term in Article 401 (Art. 203);
(2) That he h a s received either personally or through another gifts
or presents or accepted offers or promises;
(3) T h a t such reception of gifts or presents or acceptance of offers
or promises has been for the purpose of executing a crime; and
(4) That the act constituting the crime relates to the exercise of the
office which the public officer discharges.
All these must concur. (U.S. vs. Gimenea, 24 Phil. 470)
A promise to give gift to, and a promise to commit an unlawful act

by, a public officer will be sufficient in direct bribery under the first
paragraph of Art. 210.
It is sufficient that a promise or offer was made to the public officer to
give him money if he would commit an unlawful act in connection with the
387
performance of his official duties and that he agreed to commit the unlawful
act in consideration of the promise or offer.
Example:
The stenographer of the court accepted a promise of P I 00 from an
individual and promised to alter the notes taken by him during the trial of
a case. The act which the stenographer promised to do would constitute the
crime of falsification under Art. 171 of the Code.
It is not necessary that the evidence shows an express promise. It
is sufficient if from all the circumstances in the case, such promise can be
implied. (U.S. vs. Richard, 6 Phil. 545)
The public officer to suffer "the penalty corresponding to the crime

agreed upon, if the same shall have been committed."
Thus, if the stenographer of the court who had accepted a promise
of P 1 0 0 from an individual altered the notes in accordance w i t h the
agreement, he shall suffer, in addition to the penalty corresponding to the
crime of bribery, the penalty for the crime of falsification by a public officer
or employee under Art. 171 of the Code.
The act which the public officer agrees to perform must be con-
nected with the performance of official duties.
The act which the public officer agreed to perform m u s t be an act
in discharge of his legal duty. For example, a municipal president who
ordered the release of a prisoner upon receiving from the latter the sum
of P20, instead of obeying the orders of the provincial governor requiring
him to send the prisoner to the provincial capital, is guilty of direct bribery,
because, "having the prisoner under h i s charge, it w a s part of his official
duty to obey the orders of the provincial governor in this respect." (U.S. vs.
Valdehueza, 4 Phil. 470)
The act need not, however, be statutory duty; it is sufficient if the

action to be affected by the bribe be part of the established procedure of a
governmental agency. (Cohen vs. United States, 144 F. [2d] 984, 323 U.S.
797, 89 L. Ed. 636, 65 S. Ct. 440; 342 U.S. 885, 89 L. Ed. 1435 S. Ct. 586)
It is not bribery if the act is in discharge of a mere moral duty. (See
Dishon vs. Smith, 10 Iowa 2 1 2 , 221)
The fact that the act agreed to be performed by the public officer is
in excess of his power, jurisdiction, or authority is no defense. (Glover vs.
State, 109 Ind. 3 9 1 , 10 N . E . 282) But if the act agreed to be performed is so
foreign to the duties of the office as to lack even color of authority, there is
388
no bribery. (Gunning vs. People, 189 111. 165, 59 N.E. 494, 82 Am. St. Rep
443)
Direct bribery under the 2nd par. of Art. 210 has the same elements
as those of direct bribery under the 1st par., but the act intended
by the public officer does not amount to a crime.
In the crime of direct bribery denned in the second paragraph,
there appear the s a m e elements as those of the offense defined in the
first paragraph, with the sole exception that the act intended by the officer,
although unjust, does not amount to crime.
Examples of second form of direct bribery.

1. The treasurer who, in consideration of money or present, awards
certain stalls in the public market to a Chinaman, in spite of the
fact that there are Filipinos who have better rights. This act of the
treasurer is not a crime but it is unjust.
2. In the case of U.S. vs. Gacutan, 28 Phil. 100, the bribery committed
by the justice of the peace falls under this form of bribery, because
w h e n he decided the case in favor of the party who gave him a female
carabao worth P80, without regard to the evidence, he executed an
act which is not criminal, for there w a s no evidence that the decision
w a s unjust and that he knew it to be unjust. The act he executed
w a s unjust, for it certainly w a s an act of injustice to convict a person
charged with a crime without regard to w h a t the evidence in the case
may be.
Act does not amount to a crime, and is connected with the

performance of his official duty.
Thus, direct bribery is committed w h e n a police officer directly received
the bribe money in exchange for the recovery of stolen cylinder tanks, which
was an act not constituting a crime, and his act of receiving money was
connected with his duty as a police officer. (Marifosque vs. People, G.R. No.
156685, July 27, 2004)
In direct bribery under the 2nd paragraph, is the mere promise to

give a gift and a mere promise to execute an act not constituting
a crime sufficient?
Under the 2nd paragraph of Sec. 210, if the gift was accepted by the
public officer in consideration of the execution of an act which does not
constitute a crime, there are two penalties provided:
389
(1) prision correccional in its minimum and medium periods and

a fine of n o t / less than the value of the gift and not more than
three times such value — if the offender executed said act;
(2) arresto mayor in its maximum period and a fine of not less than
the value of the gift and not more than twice such value — if
said act shall not have been accomplished.
The word "accomplish" presupposes an overt act, an outward act
done in pursuance and in manifestation of an intent or design, brought to
completeness. The act is not accomplished when the overt act is not brought
to completeness. Hence, a mere agreement or promise on the part of the
public officer to execute an act nor constituting a crime is not a violation of
the provision in the 2nd paragraph of Art. 210.
Likewise, a mere promise to give a gift is not sufficient. The 2nd
paragraph of Art. 210 w a s taken from Art. 382 of the old Penal Code, which
punished any public officer "who shall agree to commit any act of injustice
not constituting a crime in connection with the exercise of the powers of
his office in consideration of an offer or promise or of any gift or present."
The elimination of the phrase "shall agree" and the words "of any offer or
promise" in the second paragraph of Art. 210 is not devoid of significance.
If the information does not allege whether the public officer executed
the act or not, the case would fall under paragraph 2 of Art. 210 which
distinguishes between the act which was executed and that which was not
accomplished. (People vs. Abesamis, 93 Phil. 712)
Direct bribery under the 3rd paragraph of Art. 210.

In this kind of direct bribery, the object for which the gifts is received
or promised is to make the public officer refrain from doing something which
it is his official duty to do.
Example of the third form of direct bribery.

A sanitary inspector who accepts a gift from the t e n a n t of an unsanitary
building and in consideration thereof refrains from performing his duty to
report its condition to his superiors, is guilty under the third paragraph of
Art. 210. (U.S. vs. Navarro, 3 Phil. 633)
The public officer who, instead of reporting on t h e derogatory
information he has gathered against a suspect whom he had been spying
on for communistic leanings, agrees to refrain from doing his official duty
in consideration of a sum of money, is liable for bribery under paragraph
3, Article 210, of the Revised Penal Code. (People vs. Marco, 12 C.A. Rep.
377)
390
First form of direct bribery is committed if by refraining from doing

an act the public officer commits a crime.
It m u s t be noted that if the act of refraining from doing something,
which is the official duty of the officer, constitutes a crime in itself, the
bribery should not be punished under this paragraph but under paragraph
1 of Art. 210.
Such would happen if a public officer, in violation of the duties of his
office, would, for a gift or promise, abstain from instituting an action for the
punishment of an offense. Note that the refraining constitutes the crime of
prevarication (Art. 208) and should, therefore, be punished not under the
third paragraph but under the first paragraph of Art. 210. (Albert)
Prevaricacion distinguished from bribery.

The third form of direct bribery (Art. 210) is committed by refraining
from doing something which pertains to the official duty of the officer.
Prevaricacion (Art. 208) is committed in the same way.
In this regard, the two felonies are similar.
But they differ in that in bribery, the offender refrained from doing
his official duty in consideration of a gift received or promised. This element
is not necessary in the crime of prevaricacion.
In bribery, the gift or present must be given to the public officer to

corrupt him.
A, a cabeza de barangay and barrio lieutenant, accepted cocks, hens,
bamboo, and other articles under promise to relieve the persons from whom
he had obtained them of the obligation to perform certain duties.
Held: This is not bribery, but estafa (by means of deceit), because the
things were given to him by the taxpayers not to corrupt him and to induce
him to omit the performance of his duty, but were demanded by him. (U.S.
vs. Jader, 1 Phil. 297)
Note: It is estafa, because by promising the people that they would be
relieved of the obligation to perform certain duties, the accused pretended
to possess authority to do so.
Direct Bribery is a crime involving moral turpitude.

Moral turpitude can be inferred from the third element. The fact that
the offender agrees to accept a promise or gift and deliberately commits an
unjust act or refrains from performing an official duty in exchange for some
favors, denotes a malicious intent on the part of the offender to renege on
391
Art. 211 INDIRECT BRIBERY
the duties which he owes his fellowmen and society in general. Also, the fact
that the offender takes advantage of his office and position is a betrayal of
the trust reposed on him by the public. It is a conduct clearly contrary to
the accepted rules of right and duty, justice, honesty and good morals. In
all respects, direct bribery is a crime involving moral turpitude. (Magno vs.
Commission on Elections, et al., G.R. No. 147904, October 4, 2002)
A r t . 211. Indirect bribery. — T h e p e n a l t i e s o f arresto

1 5
mayor," s u s p e n s i o n i n i t s m i n i m u m a n d m e d i u m p e r i o d s ,
a n d public c e n s u r e shall b e i m p o s e d u p o n a n y p u b l i c officer
w h o shall a c c e p t gifts offered t o h i m b y r e a s o n o f h i s office.
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.
Gift is usually given to the public officer in anticipation of future

favor from the public officer.
A public officer should not accept any gift offered to him, because such
gift is offered in anticipation of future favor from him. Such gift received
now will in the future corrupt him or m a k e h i m omit the performance of his
official duty.
Example of indirect bribery.

A veterinarian of the Board of Health, entrusted with the duty of
examining mules which were offered for sale to the Government, received
a certain amount of money from the vendor of m u l e s after the latter had
received from the Government the purchase price of the m u l e s sold. There
w a s no evidence to the effect that the money w a s given for the purpose of
preventing the veterinarian from doing or inducing h i m to do something
pertaining to his officer. (U.S. vs. Richards, 6 Phil. 545) He accepted the gift
offered to him by reason of his office.
u
S e e Appendix "A," Table of Penalties, No. 1.
15
392
INDIRECT BRIBERY Art. 211
"Who shall accept gifts offered to him."

Will there be indirect bribery, if a public officer accepts a promise of
gifts made to him by reason of his office?
Art. 211 does not use the word "promise," but the phrase "shall accept
gifts."
The essential ingredient of direct bribery as defined on Article 211 of
the Revised Penal Code is that the public officer concerned must have accepted
the gift or material consideration. There must be a clear intention on the part
of the public officer to take the gift so offered and consider the same as his
own property from then on, such as putting away the gift for safekeeping or
pocketing the same. Mere physical receipt unaccompanied by any other sign,
circumstance or act to show such acceptance is not sufficient to lead the court
to conclude that the crime of indirect bribery has been committed. To hold
otherwise will encourage unscrupulous individuals to frame up public officers
by simply putting within their physical custody some gift, money or other
property. (Formilleza vs. Sandiganbayan, 159 SCRA 1)
There is no attempted or frustrated indirect bribery.

Indirect bribery h a s no attempted or frustrated stage of execution,
because it is committed by accepting gifts offered to the public officer by
reason of h i s office. If he does not accept the gifts; he does not commit the
crime. If he accepts the gifts, it is consummated.
Direct bribery distinguished from indirect bribery.

1. In both crimes, the public officer receives gift.
2. While in direct bribery there is an agreement between the public
officer and the giver of the gift or present, in indirect bribery, usually,
no such agreement exists.
3. In direct bribery, the offender agrees to perform or performs an act
or refrains from doing something, because of the gift or promise; in
indirect bribery, it is not necessary that the 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, (cited in Pozar vs.
Court of Appeals, 132 SCRA 729)
Considered indirect bribery, even if there was a sort of an agreement

between public officer and giver of gift.
P was an employee of the Manila Health Department assigned to
prepare and follow up vouchers of the employees who were laid off. Knowing
that B w a s to be laid off, P offered B to prepare his voucher for accumulated
393
Art. 211 INDIRECT BRIBERY
and terminal leave pay, on condition that the latter would give the former
P50, to which B agreed. When B received his pay, he gave P the sum of P50.
Held: P was without any right whatsoever to receive P50 for his
services, because he was an employee of the government assigned to do the
work he performed for B. (People vs. Pamplona, C.A., 51 O.G. 4116) The
accused was found guilty of indirect bribery.
Distinguish indirect bribery from direct bribery under the 2nd par.
of Art. 210.
The case of People vs. Pamplona, C.A., 51 O.G. 4116, might be
mistaken for a case of direct bribery under the 2nd paragraph of Art. 210,
because there was an agreement between the public officer and the giver of
the gift and that the act which the public officer executed did not constitute
a crime. But in direct bribery under the 2nd paragraph of Art. 210, the act
executed must be unjust. In the Pamplona case, the act executed by the
accused (preparing the voucher) w a s not unjust.
Receiving of gifts by public officials and employees, and giving of

gifts by private persons, on any occasion, including Christmas is
punishable.
The President of the Philippines h a s made it punishable for any
public official or employee, whether of the national or local governments,
to receive, directly or indirectly, and for private persons to give, or offer to
give, any gift, present or other valuable thing on any occasion, including
Christmas, w h e n such gift, present or other valuable t h i n g is given by
reason of his official position, regardless of whether or not the s a m e is for
past favor or favors or the giver hopes or expects to receive a favor or better
treatment in the future from the public official or employee concerned in
the discharge of his official functions. Included within the prohibition is the
throwing of parties or entertainments in honor of the official or employee or
of his immediate relatives.
For violation of this Decree, t h e penalty of imprisonment for not less
than one (1) year nor more t h a n five (5) years and perpetual disqualification
from public office shall be imposed. The official or employee concerned shall
likewise be subject to administrative disciplinary action and, if found guilty,
shall be meted out the penalty of suspension or removal, depending on the
seriousness of the offense.
Any provision of law, executive order, rule or regulation or circular
inconsistent with this Decree is hereby repealed or modified accordingly.
(Presidential Decree No. 46 which took effect on

November 10, 1972)
394
QUALIFIED BRIBERY Arts. 211-A-212
CORRUPTION OF PUBLIC OFFICIALS
Criminal penalty of imprisonment is distinct from the administrative

penalty of separation from the judicial service.
The Court is constrained to disapprove the recommendation as to the
first charge of indirect bribery which is fully supported by the evidence that
respondent Judge "be suspended from office for 2 years and 4 months, taking
into consideration the penalty prescribed in the Revised Penal Code." The
penalty of 2 years and 4 months imprisonment provided for the criminal
offense of indirect bribery m a y not be equated with the penalty of separation
from the judicial service which is the proper applicable administrative
penalty by virtue of respondent Judge's serious misconduct prejudicial to
the judiciary and the public interest. (Cabrera vs. Pajares, 142 SCRA 127)
A r t . 211 - A . Qualified Bribery. — I f a n y p u b l i c o f f i c e r

is entrusted with law enforcement a n d he refrains from
arresting or prosecuting an offender w h o has committed
a c r i m e p u n i s h a b l e b y reclusion perpetua a n d / o r d e a t h i n
c o n s i d e r a t i o n of a n y offer, p r o m i s e , gift or present, he shall
suffer the penalty for the offense w h i c h w a s not prosecuted.
I f i t i s t h e p u b l i c officer w h o a s k s o r d e m a n d s s u c h gift
o r p r e s e n t , h e s h a l l s u f f e r t h e p e n a l t y o f d e a t h . (As added b y
Republic Act No. 7659)
Elements:
1. That the offender is a public officer entrusted with law enforcement;
2. That the offender refrains from arresting or prosecuting an offender
who has committed a crime punishable by reclusion perpetua and/or
death;
3. That the offender refrains from arresting or prosecuting the offender
in consideration of any promise, gift or present.
A r t . 212. Corruption of public officials. — The same

p e n a l t i e s i m p o s e d u p o n t h e officer corrupted, e x c e p t t h o s e o f
disqualification and suspension, shall be imposed upon any
p e r s o n w h o shall h a v e m a d e the offers or promises or given
t h e gifts or p r e s e n t s as described in t h e p r e c e d i n g articles.
395
Art. 212 CORRUPTION OF PUBLIC OFFICIALS
Elements:
1. That the offender makes offers or promises or 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.
The offender in corruption of public officer is the giver of gift or

offeror of promise.
The offender is the giver of gifts or offeror of promise.
The public officer sought to be bribed is not criminally liable, unless
he accepts the gift or consents to the offer of the offender.
Art. 212 punishes the person who made the offer or promise or gave
the gift, even if the gift was demanded by the public officer and the offer was
not made voluntarily prior to the said demand by the public officer.
Bribery is usually proved by evidence acquired in entrapment.

In view of the fact that it is hard to prove bribery, for the briber
himself is punished by law and he is usually the only one who could give
direct evidence, ways and m e a n s are resorted to, to catch the public officer
while he is in the act of obtaining bribes. This is known as entrapment.
Thus, an NBI agent who, posing as one interested in expediting the
approval of license for firearm, gave P50 to the public officer who had hinted
that he was not averse to receiving some money for expediting the approval
of licenses, merely resorted to w a y s and m e a n s to catch the public officer, it
appearing that there w a s a ground of suspicion or belief of the existence of
official graft in that office. (People vs. Vinzol, C.A., 47 O.G. 294)
Presidential Decree No. 749, approved on July 18, 1975, which

grants immunity from prosecution to givers of bribes and other
gifts and to their accomplices in bribery and other graft cases
against public officers, provides:
Section 1. Any person who voluntarily gives information about any
violation of Articles 210, 211 and 212 of the Revised Penal Code; Republic
Act Numbered Three Thousand Nineteen, as amended; Section 345 of the
Internal Revenue Code and Section 3 6 0 4 of the Tariff and Customs Code
and other provisions of the said Codes penalizing abuse or dishonesty
on the part of the public officials concerned; and other laws, rules and
regulations punishing acts of grafts, corruption and other forms of official
396
CORRUPTION OF PUBLIC OFFICIALS Art. 212
Anti-Graft and Corrupt Practices Act
abuse; and who willingly testifies against public official or employee for
such violation shall be exempt from prosecution or punishment for the
offense with reference to which his information and testimony were given,
and may plead or prove the giving of such information and testimony in bar
of such prosecution; Provided, That this immunity may be enjoyed even in
cases where the information and testimony are given against a person who
is not a public official but who is a principal, or accomplice, or accessory
in the commission of any of the above-mentioned violations; Provided,
further, That 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; And provided, finally, That
the following conditions concur:
1. The information m u s t 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 h a s not been previously convicted of a
crime involving moral turpitude.
Sec. 2. The immunity granted hereunder shall not attach should it
turn out subsequently that the information and/or testimony is false and
malicious or made only for the purpose of harassing, molesting or in any
way prejudicing the public officer denounced. In such a case, the public
officer so denounced shall be entitled to any action, civil or criminal, against
said informant or witness.
XXX.
ANTI-GRAFT AND CORRUPT PRACTICES ACT
(RA. No. 3019 as amended by R.A. No. 3047,

P.D. No. 77 and B.P. Big. 195)
S E C T I O N 1. Statement of policy. — I t i s t h e p o l i c y o f
the Philippine Government, in line with the principle that a
p u b l i c office is a p u b l i c trust, to r e p r e s s c e r t a i n a c t s of public
officers a n d p r i v a t e p e r s o n s alike w h i c h constitute graft and
corrupt practices or which may lead thereto.
397
P u r p o s e of t h e Anti-Graft Law.
The Anti-Graft Law was enacted under the police power of the State
to promote morality in the public service. (Morfe vs. Mutuc, 22 SCRA 424)
P o l i c y b e h i n d t h e e n a c t m e n t o f t h e Anti-Graft a n d Corrupt P r a c t i c e s
Act.
This Act (Rep. Act No. 3019) was enacted to deter public officials and
employees from committing acts of dishonesty and improve the tone of
morality in public service. It was declared to be a state policy "in line with
the principle that a public office is a public trust, to repress certain acts of
public officers and private persons alike which constitute graft or corrupt
practices or which may lead thereto." (Morfe vs. Mutuc, supra)
S E C . 2 . Definition o f terms. — A s u s e d i n t h i s A c t , t h e
term —
(a) " G o v e r n m e n t " i n c l u d e s t h e n a t i o n a l g o v e r n m e n t ,
the local government, the g o v e r n m e n t - o w n e d a n d govern-
ment-controlled corporations, a n d all o t h e r instrumentali-
ties or agencies of the Republic of the Philippines a n d their
branches.
(b) " P u b l i c o f f i c e r " i n c l u d e s e l e c t i v e a n d a p p o i n t i v e
officials a n d e m p l o y e e s , p e r m a n e n t o r t e m p o r a r y , w h e t h e r i n
the classified or unclassified or e x e m p t i o n service receiving
compensation, even nominal, from the government as defined
in the sub-paragraph.
(c) " R e c e i v i n g a n y gift" i n c l u d e s t h e a c t o f a c c e p t i n g
directly or i n d i r e c t l y a gift f r o m a p e r s o n o t h e r t h a n a
m e m b e r o f t h e p u b l i c officer's i m m e d i a t e family, i n b e h a l f
of himself or of any member of his family or relative within
t h e fourth civil d e g r e e , e i t h e r by c o n s a n g u i n i t y or affinity,
even on the occasion of a family celebration or national
festivity like C h r i s t m a s , if t h e v a l u e of t h e gift is u n d e r t h e
circumstances manifestly excessive.
(d) " P e r s o n " i n c l u d e s n a t u r a l a n d j u r i d i c a l persons

unless the context indicates otherwise.
S E C . 3. Corrupt practices of public officers. — In a d d i t i o n
to acts or o m i s s i o n s of public officers already p e n a l i z e d
by existing law, the following shall constitute corrupt
398
practices of a n y public officer a n d are h e r e b y declared to be

unlawful:
(a) P e r s u a d i n g , i n d u c i n g o r i n f l u e n c i n g a n o t h e r p u b l i c
officer to p e r f o r m an act c o n s t i t u t i n g a violation of rules a n d
regulations duly promulgated by competent authority or an
offense i n c o n n e c t i o n w i t h t h e official d u t i e s o f t h e latter, o r
allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.
The persons liable under this provision are (1) the public officer who
persuades, induces or influences another public officer to perform an act
constituting a violation of rules and regulations or an offense in connection
with the official duties of the latter, and (2) the public officer who allows
himself to be so persuaded, induced or influenced.
Requesting or receiving any gift, present, or benefit is not required in
this provision.
Is it necessary that the accused acted for a consideration and had

intended to obtain personal gain or advantage?
The Court of Appeals held that in the absence of any allegation or
proof that the accused so acted for a consideration, payment or remuneration
and that he intended to obtain personal gain, enrichment or advantage, the
accused may not be convicted of violating Par. (a), Sec. 3 of Republic Act
No. 3019, known as the Anti-Graft and Corrupt Practices Act. (People vs.
Bornales, 13 C.A. Rep. 972; 67 O.G. 8316)
(b) D i r e c t l y o r i n d i r e c t l y r e q u e s t i n g o r r e c e i v i n g a n y
gift, p r e s e n t , s h a r e , p e r c e n t a g e , o r benefit, for h i m s e l f o r
for a n y other person, in c o n n e c t i o n w i t h any contract or
transaction b e t w e e n the G o v e r n m e n t and any other party,
w h e r e i n t h e p u b l i c officer i n h i s official c a p a c i t y h a s t o
intervene under the law.
The person liable under this provision is the public officer who, in his
official capacity, has to intervene under the law in any contract or transaction
between the Government and any other party.
The act constituting the crime is directly or indirectly, requesting or
receiving any gift, present, share, percentage, or benefit, for himself or for any
other person, in connection with that contract or transaction.
399
Preliminary investigation by a fiscal is not a contract or bans-

action.
A preliminary investigation of a criminal complaint conducted by a
fiscal is not a "contract or transaction" so as to bring it within the ambit of
Section 3(b) of R.A. No. 3019. A transaction, like a contract, is one which
involves some consideration as in credit transactions and the element of
consideration is absent in a preliminary investigation of a case. (Soriano vs.
Sandiganbayan, 131 SCRA 184)
(c) D i r e c t l y o r i n d i r e c t l y r e q u e s t i n g o r r e c e i v i n g a n y
gift, p r e s e n t o r o t h e r p e c u n i a r y o r m a t e r i a l b e n e f i t , f o r
himself o r for a n o t h e r , f r o m a n y p e r s o n for w h o m t h e p u b l i c
officer, i n a n y m a n n e r o r c a p a c i t y , h a s s e c u r e d o r o b t a i n e d ,
or will secure or obtain, a n y G o v e r n m e n t permit or license,
in consideration for t h e h e l p g i v e n or to be given, w i t h o u t
prejudice to Section thirteen of this Act.
The person liable under this provision is the public officer who, in any
manner or capacity, has secured or obtained, or will secure or obtain, any
Government permit or license for another person.
The act constituting the crime is directly or indirectly requesting or
receiving any gift, present or other pecuniary or material benefit, for himself
or for another in consideration for the help given or to be given.
(d) A c c e p t i n g o r h a v i n g a n y m e m b e r o f h i s f a m i l y
accept employment in a private enterprise which has pending
official b u s i n e s s w i t h h i m d u r i n g t h e p e n d e n c y t h e r e o f o r
within one year after his termination.
The person liable under this provision is a public officer who had or
has pending official business with a private enterprise.
The act constituting the crime is accepting or having any member of
his (public officer's) family accept employment in t h a t private enterprise (1)
during the pendency of the official business with h i m or (2) within one year
after its termination.
It will be noted that the prohibition refers to employment in a
private enterprise. Hence, if the public officer or a member of h i s family
accepted employment in a Government department or agency, like a public
corporation, the prohibition does not apply, e v e n if such department or
agency had or has pending official business with him.
(e) C a u s i n g a n y u n d u e i n j u r y t o a n y p a r t y , i n c l u d i n g
the Government, or giving any private party any unwarranted
400
benefits, advantage or preference in the discharge of his

official, a d m i n i s t r a t i v e o r j u d i c i a l f u n c t i o n s t h r o u g h m a n i f e s t
partiality, evident bad faith or gross inexcusable negligence.
This provision shall a p p l y to officers a n d e m p l o y e e s of
offices o r g o v e r n m e n t c o r p o r a t i o n s c h a r g e d w i t h the grant
of licenses or permits or other concessions.
To be liable under this provision, the public officer must act thru
manifest partiality, evident bad faith or gross inexcusable negligence.
The act constituting the crime is causing any undue injury to
any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of the official
administrative or judicial functions of the offending public officer.
Interpretation of last sentence of Sec. 3(e).

Section 3 e n u m e r a t e s in eleven subsections the corrupt practices of
any public officer declared unlawful. Its reference to "any public officer"
is without distinction or qualification and it specifies the acts declared
unlawful. We agree with the view adopted by the Solicitor General that
the last sentence of paragraph (e) is intended to make clear the inclusion of
officers and employees of offices or government corporations which, under
the ordinary concept of "public officers" m a y not come within the term. It is
a strained construction of the provision to read it as applying exclusively to
public officers charged with the duty of granting license or permits or other
concessions. (Mejorada vs. Sandiganbayan, 151 SCRA 399)
(f) Neglecting or refusing, after due d e m a n d or

request, w i t h o u t sufficient justification, to act within a
r e a s o n a b l e t i m e o n a n y m a t t e r p e n d i n g before h i m for the
purpose of obtaining directly or indirectly, from any person
interested in the m a t t e r s o m e pecuniary or material benefit
or advantage, or for the purpose of favoring his o w n interest
or giving undue advantage in favor of or discriminating
against any other interested party.
(g) E n t e r i n g , o n b e h a l f o f t h e g o v e r n m e n t , i n t o a n y
contract or transaction manifestly and grossly disadvan-
t a g e o u s t o t h e s a m e , w h e t h e r o r n o t t h e p u b l i c officer profited
or will profit thereby.
The person liable under this provision is any public officer who has the
duty under the law to enter, on behalf of the Government, into any contract
or transaction with any person.
401
The act constituting the crime is entering into such contract or

transaction manifestly and grossly disadvantageous to the Government.
It is not necessary that the public officer profited or will profit
thereby.
Under Section 3(g) of R.A. No. 3019, it is enough to prove that the
accused is a public officer; that he entered into a contract or transaction on
behalf of the government; and that such contract or transaction is grossly
and manifestly disadvantageous to that government. In other words, the act
treated thereunder partakes of the nature of a malum prohibitum, it is the
commission of that act as defined by law, not the character or effect thereof,
that determines whether or not the provision has been violated. (Luciano
vs. Estrella, 34 SCRA 769)
(h) D i r e c t l y o r i n d i r e c t l y h a v i n g f i n a n c i a l o r p e c u n i a r y
interest in any business, contract or transaction in connection
w i t h w h i c h h e i n t e r v e n e s o r t a k e s p a r t i n h i s official capacity,
or in which he is prohibited by the Constitution or by any
law from having any interest.
The person liable under this provision is any public officer who
intervenes or takes part in his official capacity in any business, contract or
transaction, or any public officer who is prohibited by the Constitution or by
any law from having any interest.
The act constituting the crime is directly or indirectly having financial
or pecuniary interest in that business, contract or transaction.
Actual intervention required.

What is contemplated in Section 3(h) of the anti-graft law is the actual
intervention in the transaction in which one h a s financial or pecuniary
interest in order that liability may attach. (Opinion No. 306, Series 1961
and Opinion No. 94, Series 1972 of the Secretary of Justice) The official
need not dispose his shares in the corporation as long as he does not do
anything for the firm in its contract with the office. For the law aims to
prevent the dominant use of influence, authority and power. (Trieste, Sr. vs.
Sandiganbayan, 145 SCRA 508)
(i) Directly or indirectly b e c o m i n g interested, for per-

sonal gain, or having material interest in any transaction
or act requiring the approval of a board, panel or group of
which he is a member, and which exercises discretion in
such approval, even if he votes against the same or does not
participate in the action of the board; committee, panel or
group.
402
Interest for personal gain shall be p r e s u m e d against

those public officers responsible for the approval of mani-
festly unlawful, inequitable, or irregular transactions or acts
by the board, panel or group to which they belong.
The person liable under this provision is any public officer who is a
member of a board, panel or group which exercises discretion in the approval
of any transaction or act.
The act constituting the crime is directly or indirectly becoming
interested, for personal gain, or having material interest in any transaction
or act requiring the approval of such board, panel or group.
The public officer is liable under this provision even if he votes against
the same or does not participate in the action of the board, committee, panel
or group.
The public officers responsible for the approval of manifestly unlawful,
inequitable or irregular transactions or acts by the board, panel or group
to which they belong are presumed to have acquired interest for personal
gain.
(j) Knowingly approving or granting any license,

permit, privilege or benefit in favor of any person not qualified
for or not legally entitled to s u c h license, permit, privilege or
advantage, or of a mere representative or d u m m y of one w h o
is not so qualified or entitled.
The person liable under this provision is the public officer who has the
duty of approving or granting any license, permit, privilege or benefit.
The act constituting the crime is knowingly approving or granting
the license, permit or benefit in favor of any person not qualified for or not
legally entitled to such license, permit or privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled.
Requesting or receiving any gift, present or benefit is not required in
this provision.
(k) D i v u l g i n g v a l u a b l e i n f o r m a t i o n of a confidential
c h a r a c t e r , a c q u i r e d b y h i s office o r b y h i m o n a c c o u n t o f h i s
official p o s i t i o n t o u n a u t h o r i z e d p e r s o n s , o r r e l e a s i n g s u c h
information in a d v a n c e of its authorized release date.
The person liable under this provision is any public officer who, on
account of his official position, or whose office, acquired valuable information
of a confidential character.
403
The acts constituting the crime are (1) divulging such valuable
information to unauthorized persons, or (2) releasing such information in
advance of its authorized release date.
The person giving the gift, present, share, percentage or benefit
referred to in subparagraphs (b) and (c); or offering or giving to the public
officer the employment mentioned in subparagraph (d); or urging the
divulging or untimely release of the confidential information referred to in
subparagraph (k) of this Section shall, together with the offending public
officer, be punished under Section nine of this Act and shall be permanently
or temporarily disqualified in the discretion of the Court, from transacting
business in any form with the Government.
S E C . 4. Prohibition on private individuals. —

(a) It shall be unlawful for a n y p e r s o n h a v i n g family or
close p e r s o n a l r e l a t i o n w i t h a n y p u b l i c official t o c a p i t a l i z e
or exploit or take advantage of such family or close personal
relation by directly or indirectly requesting or receiving any
p r e s e n t , gift o r m a t e r i a l o r p e c u n i a r y a d v a n t a g e f r o m a n y
other person having some business, transaction, application,
request or contract with the government, in which such
p u b l i c official h a s t o i n t e r v e n e . F a m i l y r e l a t i o n s h a l l i n c l u d e
the s p o u s e or relatives by c o n s a n g u i n i t y or affinity in t h e
third civil degree. T h e w o r d "close personal relation" shall
include close personal friendship, social and fraternal
connections, a n d professional e m p l o y m e n t all g i v i n g rise to
i n t i m a c y w h i c h a s s u r e s free a c c e s s t o s u c h p u b l i c officer.
Taking advantage of family or close personal relation with public

official is punished.
The offender under this provision is any person who has family or
close personal relation with any public official who has to intervene in some
business, transaction, application, request or contract of the government
with any other person.
The act constituting the crime is capitalizing or exploiting or taking
advantage of such family or close personal relation by directly or indirectly
requesting or receiving any present, gift, or material or pecuniary advantage
from the person having the business, transaction, application, request or
contract with the government.
404
(b) It shall be unlawful for a n y p e r s o n k n o w i n g l y to

i n d u c e o r c a u s e a n y p u b l i c official t o c o m m i t a n y o f t h e
offenses defined in S e c t i o n 3 hereof.
S E C . 5. Prohibition on certain relatives. — I t s h a l l b e

unlawful for the s p o u s e or for a n y relative, by consanguinity
o r affinity, w i t h i n t h e t h i r d civil d e g r e e , o f t h e P r e s i d e n t
of the Philippines, the Vice-President of the Philippines,
the President of the Senate, or the Speaker of the House
of Representatives, to intervene, directly or indirectly, in
any business, transaction, contract or application with the
G o v e r n m e n t : Provided, T h a t t h i s s e c t i o n s h a l l n o t a p p l y t o
a n y p e r s o n w h o , p r i o r t o t h e a s s u m p t i o n o f office o f a n y o f t h e
a b o v e officials t o w h o m h e i s related, h a s b e e n already d e a l i n g
with the Government along the same line of business, nor to
any transaction, contract or application already existing or
p e n d i n g a t t h e t i m e o f s u c h a s s u m p t i o n o f p u b l i c office, n o r
to any application filed by him the approval of which is not
d i s c r e t i o n a r y o n t h e p a r t o f t h e official o r officials c o n c e r n e d
but depends upon compliance with requisites provided by
law, or rules or regulations issued pursuant to law, nor to
a n y a c t l a w f u l l y p e r f o r m e d i n a n official c a p a c i t y o r i n t h e
e x e r c i s e of a p r o f e s s i o n .
Section 5 prohibits certain relatives of the President, Vice-President,

Senate President and Speaker to intervene in any business, etc.
with the Government.
Exceptions to the provisions of Section 5 —
1. Any person who, prior to the assumption of office of any of those
officials to whom he is related, has been already dealing with the
Government along the same line of business, nor to any transaction,
contract or application already existing or pending at the time of such
assumption of public office;
2. Any application filed by him, the approval of which is not discretionary
on the part of the official or officials concerned but depends upon
compliance with the requisites provided by law, or rules or regulations
issued pursuant to law;
3. Any act lawfully performed in an official capacity or in the exercise of
a profession.
405
S E C . 6. Prohibition on Members of Congress. — It s h a l l

be unlawful hereafter for a n y M e m b e r of t h e Congress,
during the term for w h i c h he h a s b e e n elected to acquire
or receive any personal pecuniary interest in any specific
business enterprise which will be directly and particularly
favored or benefited by any law or resolution authored by
him previously approved or adopted by the Congress during
the same term.
The provision of this Section shall apply to any other
public officer w h o r e c o m m e n d e d t h e i n i t i a t i o n i n C o n g r e s s
of the enactment or adoption of any law or resolution, and
acquires or receives any such interest during his incum-
bency.
It shall likewise be unlawful for s u c h m e m b e r of
C o n g r e s s o r o t h e r p u b l i c officer, w h o , h a v i n g s u c h i n t e r e s t
prior to the approval of such law or resolutions authored or
r e c o m m e n d e d by him, continues for thirty days after s u c h
approval to retain his interest.
S E C . 7. Statement of Assets and Liabilities. — Every

public officer w i t h i n t h i r t y d a y s after a s s u m i n g office, a n d
thereafter, on or before the fifteenth day of April following
the close of every calendar year, as well as u p o n the
e x p i r a t i o n o f h i s t e r m o f office, o r u p o n h i s r e s i g n a t i o n o r
s e p a r a t i o n f r o m office, shall p r e p a r e a n d f i l e w i t h t h e office
of the corresponding Department Head, or in the case of a
H e a d o f D e p a r t m e n t o f o u r C h i e f o f a n i n d e p e n d e n t office,
w i t h t h e Office of t h e P r e s i d e n t , a t r u e , d e t a i l e d a n d s w o r n
statement of assets a n d liabilities, including a statement of
the a m o u n t s and sources of his i n c o m e taxes parid for the
n e x t p r e c e d i n g c a l e n d a r y e a r : Provided, T h a t p u b l i c o f f i c e r s
a s s u m i n g office l e s s t h a n t w o m o n t h s b e f o r e t h e e n d o f t h e
calendar year, may file their first statement on or before the
fifteenth day of April following the close of the said calendar
y e a r . (As amended by RA. No. 3047, PJ>. No. 677 and 1288,
January 24, 1978)
The accuracy of entries in statements of assets and liabilities becomes

material in criminal or administrative proceedings for violation of Sec. 7 of
R.A. No. 3019. (Republic vs. Intermediate Appellate Court, 172 SCRA 296)
406
SEC. 8. Prima facie evidence of and dismissal due to

unexplained wealth. — If in a c c o r d a n c e w i t h t h e p r o v i s i o n s
of Republic Act Numbered One thousand three hundred
a n d s e v e n t y - n i n e , a p u b l i c official h a s b e e n f o u n d to h a v e
acquired during his incumbency, whether in his name or
in the n a m e of other persons, an amount of property and/
or m o n e y manifestly out of proportion to his salary and
to his other lawful income, that fact shall be a ground
for dismissal or r e m o v a l . P r o p e r t i e s in the n a m e of the
s p o u s e a n d o t h e r d e p e n d e n t s o f s u c h p u b l i c official m a y b e
taken into consideration, w h e n their acquisition through
legitimate m e a n s cannot be satisfactorily shown. Bank
deposits in the name of or manifestly excessive expenditures
i n c u r r e d b y t h e p u b l i c official, h i s s p o u s e o r a n y o f t h e i r
dependents including but not limited to activity in any
club or association or any ostentations display of wealth
i n c l u d i n g f r e q u e n t travel a b r o a d of a non-official character
b y a n y p u b l i c official w h e n s u c h activities entail e x p e n s e s
evidently out of proportion to legitimate income shall
likewise be taken into consideration in the enforcement of
this section, notwithstanding any provision of law to the
contrary. The circumstances hereinabove mentioned shall
constitute valid g r o u n d for the administrative suspension of
t h e p u b l i c official c o n c e r n e d for a n indefinite p e r i o d until
the investigation of the unexplained wealth is completed.
(As amended by BJ>. Big. 195, March 16,1982)
S E C . 9. Penalties for violations. —
(a) A n y public officer or private p e r s o n c o m m i t t i n g
any of the unlawful acts or omission enumerated in Sections
3, 4, 5 a n d 6 of this Act shall be p u n i s h e d w i t h i m p r i s o n m e n t
for n o t less t h a n six y e a r s a n d o n e m o n t h not m o r e than
f i f t e e n y e a r s , p e r p e t u a l d i s q u a l i f i c a t i o n f r o m p u b l i c office,
and confiscation or forfeiture in favor of the Government of
any prohibited interest and unexplained wealth manifestly
out of proportion to his salary and other lawful income.
Any complaining party at w h o s e complaint, the criminal
prosecution w a s initiated shall, in case of conviction of the
accused, be entitled to recover in the criminal action with
priority over the forfeiture in favor of the Government,
407
the amount of money or the thing he m a y have given to the

accused, or the fair v a l u e of s u c h thing.
(b) A n y p u b l i c official v i o l a t i n g a n y o f t h e p r o v i s i o n s
of Section 7 of this Act shall be p u n i s h e d by a fine of not less
than one thousand pesos nor more than five thousand pesos,
or by imprisonment not exceeding one year and six months,
or by both such fine and imprisonment, at the discretion of
the Court.
The violation of said section proven in a proper
administrative p r o c e e d i n g shall be sufficient c a u s e for
r e m o v a l or d i s m i s s a l of a p u b l i c officer, e v e n if no c r i m i n a l
p r o s e c u t i o n i s i n s t i t u t e d a g a i n s t h i m . (As amended b y BJ*.
Big. 195)
Are all the penalties prescribed in Sec. 9 of Rep. Act No. 3019
imposable on a private person?
Sec. 9 mentions the penalties w i t h which "any public officer or
private person" may be punished for committing any of the unlawful acts
or omissions enumerated in Sections 3, 4, 5 and 6 of Rep. Act No. 3019.
However, "perpetual disqualification from public office, and confiscation
or forfeiture in favor of the Government of any prohibited interest and
unexplained wealth" can hardly be imposed on a private person.
It is believed that as regards a private person, only the penalty of
imprisonment "for not less than six years and one month or fifteen years"
may be imposed.
Imprisonment for not less than six years and one month or fifteen
years.
It is believed that the intent of the law-making authority w a s for the
punishment to be "imprisonment for not less t h a n six years and one month
nor more than fifteen years."
S E C . 10. Competent court. — U n t i l o t h e r w i s e p r o v i d e d

b y law, all p r o s e c u t i o n u n d e r t h i s A c t shall b e w i t h i n t h e
o r i g i n a l j u r i s d i c t i o n o f t h e S a n d i g a n b a y a n . (As amended b y
BJ*. Big. 195)
SEC. 11. Prescription of offenses. — All offenses
punishable under this Act shall prescribe in fifteen years.
(As amended by BJ*. Big. 195)
408
S E C . 1 2 . Termination of office. — N o p u b l i c o f f i c e r s h a l l
be allowed to resign or retire pending an investigation,
criminal or administrative, or p e n d i n g a prosecution against
him, or for a n y offense u n d e r this Act or u n d e r the provisions
of the Revised Penal Code on bribery.
S E C . 1 3 . Suspension and loss of benefits. — A n y i n c u m b e n t

public officer a g a i n s t w h o m a n y c r i m i n a l p r o s e c u t i o n u n d e r
a valid information u n d e r this Act or u n d e r Title 7, B o o k II
of the Revised P e n a l Code or for a n y offense involving fraud
upon government or public funds or property whether as
a simple or as a c o m p l e x offense a n d in w h a t e v e r stage of
execution a n d m o d e of participation, is p e n d i n g in court,
shall b e s u s p e n d e d f r o m office. S h o u l d h e b e c o n v i c t e d b y
final j u d g m e n t , he shall lose all r e t i r e m e n t or gratuity benefits
u n d e r a n y 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.
I n t h e e v e n t t h a t s u c h c o n v i c t e d officer, w h o m a y
have already b e e n separated from the service, has already
received such benefits he shall be liable to restitute the same
to t h e G o v e r n m e n t . (As amended by B.P. Big. 195)
Public officer to be suspended.

The public officer against whom any criminal prosecution under
a valid information under this Act or under the Revised Penal Code on
crimes committed by public officers or for any offense involving fraud
upon government or public funds or property is pending in court shall be
suspended from office.
Regional Trial Court (now Sandiganbayan) should exercise the

mandatory act of suspension under Section 13 of Rep. Act No.
3019.
There is in Section 13 (Rep. Act 3019) a recognition that once a case is
filed in court, all other acts connected with the discharge of court functions
— which here include suspension — should be left to the Court of First
Instance. It is without doubt that Congress has power to authorize courts
to suspend public officers pending court proceedings for removal and that
the congressional grant is not violative of the separation of powers. For, our
409
Constitution being silent, we are not to say that from Congress is withheld
the power to decide the mode or procedure of suspension and removal of
public officers. (Luciano vs. Provincial Governor, 28 SCRA 517)
The suspension spoken of (in Section 13 of Rep. Act 3019) follows the
pendency in court of a criminal prosecution under a "valid information."
Adherence to this rigoristic requirement funnels us down to no other
conclusion than that there must, first of all, be a determination that the
information filed is valid before suspension can be effected. This circumstance
militates strongly against the notion that suspension under Section 13 is
automatic. Suspension is, however, mandatory. The word "shall" used in
Section 13 is an express index of this conclusion. (Noromor vs. Mun. of Oras,
Samar, 7 SCRA 405) In other words, the suspension envisioned in Section
13 of Republic Act 3019 is mandatory but is not self-operative. That is to
say, that there must be someone who shall exercise the act of suspension.
(Luciano vs. Provincial Governor, supra)
Suspension cannot be automatic.

The Court has previously ruled that, under Sec. 14, Rep. Act 3019,
suspension of a public officer is mandatory. However, suspension cannot be
automatic, the reason being that "hearing on the validity of the information
appears conformable to the spirit of the law, taking into account the serious
and far reaching consequences of a suspension of an elective public official
even before his conviction and that public interest demands a speedy
determination of the issues involved in the cases." Thus, before a suspension
order can be issued, a hearing on the issue of the validity of the information
must first be had. This pre-suspension hearing is conducted to determine
basically the validity of the information, from which the court can have a
basis to either suspend the accused, and proceed with the trial on the merits
of the case, or withhold the suspension of the latter and dismiss the case,
or correct any part of the proceeding which impairs its validity. (People vs.
Albano, 163 SCRA 511)
Maximum duration of preventive suspension is ninety days.

The preventive suspension of an elective public official under Sec. 13
of R.A. No. 3019 should be limited to ninety days under Sec. 42 of P.D. No.
807, the Civil Service Decree. (Deloso vs. Sandiganbayan, 173 SCRA 409)
The injunction against preventive suspension for an unreasonable
period of time applies to elective officials facing criminal charges under the
Anti-Graft Law. (Deloso vs. Sandiganbayan, supra)
410
Meaning of the word "acquitted" in Sec. 13.

It is obvious that w h e n the statute speaks of the suspended official
being "acquitted," it m e a n s that after due hearing and consideration of
the evidence against him, the court is of the opinion that his guilt has not
been proven beyond reasonable doubt. Dismissal of the case against the
suspended officer will not suffice because dismissal does not amount to
acquittal. (Malanyaon vs. Lising, 106 SCRA 237)
S E C . 1 4 . Exception. — U n s o l i c i t e d g i f t s o r p r e s e n t s o f
small or insignificant value offered or given as a mere ordinary
t o k e n of gratitude of friendship according to local customs or
u s a g e , shall be e x c e p t e d f r o m t h e p r o v i s i o n s of this Act.
Nothing in this Act shall be interpreted to prejudice
or prohibit the practice of any profession, lawful trade or
o c c u p a t i o n b y a n y p r i v a t e p e r s o n s o r b y a n y public officer
w h o under the law m a y legitimately practice his profession,
trade or occupation, during his incumbency, except where
the practice of such profession, trade or occupation involves
c o n s p i r a c y w i t h a n y o t h e r p e r s o n o r p u b l i c official t o c o m m i t
a n y of the violations penalized in this Act.
S E C . 1 5 . Separability clause. — I f a n y o f t h i s A c t o r t h e
application of such provision to any person or circumstances
is declared invalid, the remainder ofthe Act or the application
of s u c h provision to other persons or circumstances shall not
be affected by such declaration.
S E C . 1 6 . Effectivity. — T h i s A c t s h a l l t a k e e f f e c t o n i t s
approval, b u t for the p u r p o s e of determining unexplained
w e a l t h all p r o p e r t y a c q u i r e d by a p u b l i c officer s i n c e he
a s s u m e d office shall b e t a k e n i n t o c o n s i d e r a t i o n .
PROCEDURE UNDER THE ANTI-GRAFT LAW TO DEC-

LARE FORFEITED IN FAVOR OF THE STATE ANY
PROPERTY FOUND TO HAVE BEEN UNLAWFULLY
ACQUIRED BY A PUBLIC OFFICER OR EMPLOYEE.
(REPUBLIC ACT NO. 1379) Date of effectivity: June 18,
1955
XXX
S E C . 2 . Filing of petition. — W h e n e v e r a n y p u b l i c o f f i c e r
or employee has acquired during his incumbency an amount
411
of property which is manifestly out of proportion to his

salary a s s u c h public officer o r e m p l o y e e a n d t o his o t h e r
lawful income and the i n c o m e from legitimately acquired
p r o p e r t y , s a i d p r o p e r t y s h a l l b e p r e s u m e d prima facie t o
have been unlawfully acquired. The Solicitor General, upon
complaint by any taxpayer to the city or provincial fiscal
w h o shall conduct a previous inquiry similar to preliminary
investigations in criminal cases a n d shall certify to the
Solicitor General that there is reasonable g r o u n d to believe
that there has been committed a violation of this Act and the
respondent is probably guilty thereof, shall file, in the n a m e
and on behalf of the Republic of the Philippines, in the Court
of First Instance of the city or province w h e r e said public
officer or e m p l o y e e r e s i d e s or h o l d s office, a p e t i t i o n for a
writ c o m m a n d i n g said officer o r e m p l o y e e t o s h o w c a u s e
w h y the property aforesaid, or a n y part thereof, should not
b e d e c l a r e d p r o p e r t y o f t h e S t a t e : Provided, T h a t n o s u c h
petition shall be filed within o n e year before any general
election or within three months before any special election.
T h e resignation, dismissal or s e p a r a t i o n of t h e officer or
e m p l o y e e f r o m h i s office o r e m p l o y m e n t i n t h e G o v e r n m e n t
or in the Government o w n e d or controlled corporation shall
n o t b e a b a r t o t h e filing o f t h e p e t i t i o n : Provided, however,
That the right to file s u c h petition shall prescribe after
four years from the date of the resignation, dismissal or
separation or expiration of t h e t e r m of t h e officer or e m p l o y e e
c o n c e r n e d , e x c e p t a s t o t h o s e w h o h a v e c e a s e d t o h o l d office
within ten years prior to the approval of this Act, in w h i c h
case the proceedings shall prescribe after four years from
the approval hereof.
XXX
S E C . 5 . Hearing. — T h e c o u r t s h a l l s e t a d a t e f o r a
hearing, which may be open to the public, and during which
the respondent shall be given ample opportunity to explain,
to the satisfaction of the court, h o w he has acquired the
property in question.
412
The courts are not bound by the statement of assets and liabilities
filed.
In determining whether or not there is unexplained wealth within
the purview of R.A. No. 1379, the courts are not bound by the statement of
assets and liabilities filed by the respondent. On the contrary, this statute
affords the respondent every opportunity to explain, to the satisfaction
of the court, how he had acquired the property in question. (Republic vs.
Intermediate Appellate Court, 172 SCRA 296)
S E C . 6 . Judgment. — I f t h e r e s p o n d e n t i s u n a b l e t o s h o w
to the satisfaction of the court that he has lawfully acquired
the property in question, then the court shall declare such
property, forfeited in favor of the State, and by virtue of such
judgment the property, aforesaid shall become property of
t h e S t a t e . Provided, T h a t n o j u d g m e n t s h a l l b e r e n d e r e d
within six months before any general election or within
three months before any special election. The court may,
in addition, refer this case to the corresponding Executive
D e p a r t m e n t for administrative or criminal action, or both.
XXX
S E C . 10. Effect of record o f t i t l e . - T h e f a c t t h a t a n y r e a l

property has been recorded in the Registry of Property or
office o f t h e R e g i s t e r o f D e e d s i n t h e n a m e o f t h e r e s p o n d e n t
o r o f a n y p e r s o n m e n t i o n e d i n p a r a g r a p h s (1) a n d ( 2 ) o f
s u b s e c t i o n (b) o f s e c t i o n o n e h e r e o f s h a l l n o t p r e v e n t t h e
rendering of the j u d g m e n t referred to in section six of this
Act.
P R O V I S I O N S O F T H E A N T I - G R A F T LAW O N S E L F - I N -
C R I M I N A T I O N , I M M U N I T Y , LAWS O N P R E S C R I P T I O N
A N D PENALTIES FOR TRANSFERRING UNLAWFULLY
ACQUIRED PROPERTY.
XXX
S E C . 8. Protection against self-incrimination. — N e i t h e r

the respondent nor any other person shall be excused from
attending and testifying or from producing books, papers,
correspondence, memoranda and other records on the ground
that the testimony or evidence, documentary or otherwise,
413
required of him may tend to incriminate him or subject

him to prosecution, but no individual shall be prosecuted
criminally for o n a c c o u n t o f a n y t r a n s a c t i o n , m a t t e r o r t h i n g
concerning w h i c h he is compelled, after h a v i n g claimed his
privilege against self-incrimination, to testify or produce
evidence, documentary or otherwise, except that such
individual so testifying shall not be exempt from prosecution
a n d conviction for perjury or false t e s t i m o n y c o m m i t t e d in
so testifying or from administrative proceedings.
S E C . 9 . Immunity. — T h e S o l i c i t o r G e n e r a l m a y g r a n t
immunity from criminal prosecution to any person who
testifies t o the u n l a w f u l m a n n e r i n w h i c h t h e r e s p o n d e n t h a s
acquired any of the property in question in cases where such
testimony is necessary to prove violation of this Act.
XXX
S E C . 11. Laws on prescription. — T h e l a w s c o n c e r n i n g

acquisitive prescription and limitation of actions cannot be
invoked by, nor shall t h e y benefit t h e r e s p o n d e n t , in respect
of any property unlawfully acquired by him.
S E C . 12. Penalties. — A n y p u b l i c o f f i c e r o r e m p l o y e e
w h o shall after the effective date of this Act, transfer or
convey any unlawfully acquired property shall be repressed
w i t h i m p r i s o n m e n t for a t e r m n o t e x c e e d i n g five years,
or a fine n o t e x c e e d i n g t e n t h o u s a n d p e s o s , or b o t h s u c h
i m p r i s o n m e n t a n d fine. T h e s a m e r e p r e s s i o n shall b e i m p o s e d
upon any person w h o shall k n o w i n g l y accept such transfer
or conveyance.
Is the p r o c e e d i n g criminal or civil?
The proceeding under Republic Act No. 1379, otherwise known as the
Anti-Graft Law, is not a criminal proceeding, because it does not terminate
in the imposition of penalty but merely in the forfeiture of the properties
illegally acquired in favor of the State (Section 6) and, because the procedure
outlined therein leading to forfeiture is t h a t provided for in civil action.
(Almeda, Sr. vs. Perez, etc. and Republic, 5 SCRA 970)
Such forfeiture has been held, however, to partake of the nature of
a penalty. (Cabal vs. Kapunan, Jr., 6 SCRA 1059: Katigbak vs. Solicitor
General, 180 SCRA 540)
414
Forfeiture proceedings may be civil or crimirial, in rem or in personam.

(Almeda, Sr. vs. Perez, supra)
Penalty of forfeiture cannot be applied retroactively.

Penalty of forfeiture prescribed by R.A. No. 1379 cannot be applied
to acquisitions m a d e prior to its passage without running afoul of the
Constitutional provision condemning ex post facto laws or bills of attainder.
(Katigbak vs. Solicitor General, supra)
415
Chapter Three
FRAUDS AND ILLEGAL EXACTIONS
AND TRANSACTIONS
A r t . 2 1 3 . Frauds against the public treasury and similar

offenses. — T h e p e n a l t y o f prision correccional i n i t s m e d i u m
1
p e r i o d t o prision mayor i n i t s m i n i m u m p e r i o d , or a fine
r a n g i n g from 200 t o 10,000 p e s o s , o r b o t h , shall b e i m p o s e d
u p o n a n y public officer w h o :
1. I n h i s official c a p a c i t y , i n d e a l i n g w i t h a n y p e r s o n
with regard to furnishing supplies, the making of contracts,
or the adjustment or settlement of accounts relating to
public property or funds, shall enter into an agreement with
any interested party or speculator or make use of any other
scheme, to defraud the Government;
2. Being entrusted with the collection of taxes,
licenses, fees, and other imposts, shall be guilty of a n y of the
following acts or omissions:
(a) D e m a n d i n g , d i r e c t l y o r i n d i r e c t l y , t h e p a y m e n t
of sums different from or larger than those authorized
by law;
(b) F a i l i n g v o l u n t a r i l y t o i s s u e a r e c e i p t , a s
provided b y law, for a n y s u m o f m o n e y collected b y h i m
officially;
(c) Collecting or receiving, directly or indirectly,

by w a y of payment or otherwise, things or objects of a
nature different from that provided by law.
W h e n the culprit is an officer or e m p l o y e e of t h e B u r e a u
of Internal Revenue or the Bureau of Customs, the provisions
of the Administrative Code shall be applied.
416
FRAUDS AND ILLEGAL EXACTIONS Art. 213
AND TRANSACTIONS
Acts punishable as frauds against public treasury and illegal

exactions:
1. By entering into an agreement with any interested party or speculator

or making use of any other scheme, to defraud the Government, in
dealing with any person w i t h regard to furnishing supplies, the making
of contracts, or the adjustment or settlement of accounts relating to
public property or funds.
2. By demanding, directly or indirectly, the payment of sums different
from or larger than those authorized by law, in the collection of taxes,
licenses, fees, and other imposts.
3. By failing voluntarily to issue a receipt, as provided by law, for any
sum of money collected by him officially, in the collection of taxes,
licenses, fees, and other imposts.
4. By collecting or receiving, directly or indirectly, by way of payment or
otherwise, things or objects of a nature different from that provided by
law, in the collection of taxes, licenses, fees, and other imposts.
Elements of frauds against public treasury (Art. 213, par. 1):

a. That the offender be a public officer.
b. That he should have taken advantage of his office, that is, he intervened
in the transaction in his official capacity.
c. That he entered into an agreement with any interested party or
speculator or made use of any other scheme with regard to (1)
furnishing supplies, (2) the making of contracts, or (3) the adjustment
or settlement of accounts relating to public property or funds.
d. That the accused had intent to defraud the Government.
The public officer must act in his official capacity.

The offender must have the duty as public officer to deal with any
person with regard to furnishing supplies, the making of contracts, or the
adjustment or settlement of accounts relating to public property or funds.
The crime of frauds against public treasury is consummated

by merely entering into an agreement with any interested party
or speculator or by merely making use of any other scheme to
defraud the Government.
It is not necessary that the Government is actually defrauded by
reason of the transaction. It is sufficient that the public officer who acted in
his official capacity had the intent to defraud the Government.
417
Art. 213 FRAUDS AND ILLEGAL EXACTIONS
AND TRANSACTIONS
Elements of illegal exactions:

a. The offender is a public officer entrusted with the collection of taxes,
licenses, fees and other imposts.
b. He is guilty of any of the following acts or omissions:
(1) Demanding, directly or indirectly, the payment of sums different
from or larger than those authorized by law; or
(2) Failing voluntarily to issue a receipt, as provided by law, for any
sum of money collected by him officially; or
(3) Collecting or receiving, directly or indirectly, by way of payment
or otherwise, things or objects of a nature different from that
provided by law.
Mere demand for larger or different amount is sufficient to

consummate the crime.
Note the word "demanding" in paragraph (a) of subdivision No. 2 of
Art. 213. It would seem that it is not necessary that the taxpayer should
actually pay an amount larger than or different from that fixed by law.
Collecting officer must issue official receipts.

Where the deputy sheriff received certain amounts in connection with
the performance of his duties without issuing the corresponding official
receipts thereof, he is guilty of illegal exaction penalized by paragraph
2(b) of Article 213 of the Revised Penal Code. He likewise violates Section
113 of Article III, Chapter V of the National Accounting and Auditing
Manual which provides that no payment of any nature shall be received by
a collecting officer without immediately issuing an official receipt thereof.
(Ganaden vs. Bolasco, 64 SCRA 50)
When there is deceit in demanding greater fees than those

prescribed by law, the crime committed is estafa and not illegal
exaction.
Thus, when the municipal treasurer, by means of deceit, collected from
several residents of the municipality greater fees t h a n those prescribed by
Act No. 1147 for branding and registering of cattle, with prejudice to the
owners, to the amount of P174.50, these facts constitute the crime of estafa
and not that of illegal exaction. (VII Viada, 394, cited in U.S. vs. Lopez, et
al., 10 Phil. 480)
418
OTHER FRAUDS Art. 214
Tax collector need not account for tax collected.

When a public officer, whose official duty is to collect taxes, receives
a payment in said concept, he m a k e s himself directly accountable to the
Government for the money so collected and received inasmuch as thereafter
said money acquires the character or forms part of the public funds. If the
money is misappropriated, it is the Government which suffers the damage.
(People vs. Policher, 60 Phil. 771)
Hence, a tax collector who collected a s u m larger than that authorized
by law and spent all of t h e m is guilty of two crimes, namely: (1) illegal
exaction, for demanding a greater amount; and (2) malversation, for
misappropriating the amount collected.
The difference between the amount fixed by law and the amount
actually collected, having been paid in the concept of tax and received as
such by the tax collector, forms part of the public funds. The Government
m a y refund the difference.
Officer or employee of Bureau of Internal Revenue or Bureau of

Customs not covered by this article.
Art. 213 is not applicable if the offender is an officer or employee of the
Bureau of Internal Revenue or Bureau of Customs. The National Internal
Revenue Code or the Administrative Code applies. (Art. 213, last par.)
A r t . 2 1 4 . Other frauds. — I n a d d i t i o n t o t h e p e n a l t i e s
p r e s c r i b e d in t h e p r o v i s i o n s of C h a p t e r Six, Title Ten,
Book T w o of this Code, the penalty of temporary special
disqualification in its m a x i m u m period to perpetual special
2
disqualification shall b e i m p o s e d u p o n a n y public officer
w h o , t a k i n g a d v a n t a g e o f h i s official p o s i t i o n , shall c o m m i t
any of the frauds or deceits enumerated in said provisions.
Elements:
2. That he takes advantage of his official position.
3. That he commits any of the frauds or deceits enumerated in Arts. 315
to 318.
2
419
Art. 215 PROHIBITED TRANSACTIONS
The public officer must take advantage of his official position.

Since the councilor committed the crime of estafa as a private
individual, it is not proper to impose on him the penalty provided by Article
399 (now Art. 214) of the Code for public officers, because he received the
money not on the exercise of his functions as councilor. (U.S. vs. Dacuycuy,
9 Phil. 88) But when the councilor takes advantage of his official position in
committing estafa, the disqualification mentioned in Article 399 (now Art.
214) is a part of the penalty to be imposed. (U.S. vs. Torrida, 23 Phil. 193)
"Any of the frauds or deceits enumerated" in "the provisions of

Chapter Six, Title Ten, Book Two, of this Code."
Arts. 315 to 318, which cover the provisions referred to, define and
penalize (1) estafa, (2) other forms of swindling, (3) swindling a minor, and
(4) other deceits.
The Regional Trial Court has jurisdiction when this article is

involved.
The cases falling under this article are cognizable by the regional trial
court regardless of the amount or penalty involved, because the municipal
trial courts have no jurisdiction to impose the penalty of disqualification.
Under this article, the penalty of disqualification is imposed as a principal
penalty.
A r t . 2 1 5 . Prohibited transactions. — T h e penalty of

prision correccional i n i t s m i n i m u m p e r i o d o r a f i n e r a n g i n g
3
f r o m 2 0 0 t o 1,000 p e s o s , o r b o t h , s h a l l b e i m p o s e d u p o n a n y
appointive public officer w h o , d u r i n g h i s i n c u m b e n c y , shall
directly or indirectly b e c o m e interested in any transaction
of exchange or speculation within the territory subject to his
jurisdiction.
Elements:
1. That the offender is an appointive public officer.
2. That he becomes interested, directly or indirectly, in any transaction of
exchange or speculation.
420
POSSESSION OF PROHIBITED INTEREST Art. 216
BY PUBLIC OFFICER
3. That the transaction takes place within the territory subject to his
jurisdiction.
4. That he becomes interested in the transaction during his incumbency.
The transaction must be one of exchange or speculation.

It is sufficient under this article that the appointive officer has an
interest in any transaction of exchange or speculation, such as, buying
and selling stocks, commodities, land, etc., hoping to take advantage of an
expected rise or fall in price.
Purchasing of stocks or shares in a company is simply an invest-

ment and is not a violation of the article.
An appointive public officer may, within the territory subject to his
jurisdiction, engage in the purchase of stocks or shares in any company,
because to do so does not m e a n taking part in a business for gain or profit,
but simply to invest funds at a legal interest.
But buying regularly securities for resale is speculation.

What he may not do is to buy regularly securities for the purpose of
profiting by a resale thereof.
In a word, the appointive public officer should not devote himself to
commerce. (Albert)
Examples of appointive public officer.

Under Art. 14 of the Code of Commerce, the following (among others)
may not engage in the commercial profession either in person or by proxy:
1. Justices, judges or fiscals.
2. Employees engaged in the collection and administration of
public funds.
Thus, a fiscal of Manila who engages in commerce in Manila is guilty
under this article.
A r t . 2 1 6 . Possession of prohibited interest by a public

officer. — T h e p e n a l t y o f arresto mayor i n i t s m e d i u m p e r i o d
t o prision correccional i n i t s m i n i m u m p e r i o d , 4
o r a fine
4
421
Art. 216 POSSESSION OF PROHIBITED INTEREST
BY PUBLIC OFFICER
r a n g i n g f r o m 2 0 0 t o 1,000 p e s o s , o r b o t h , s h a l l b e i m p o s e d
u p o n a public officer w h o , directly or indirectly, shall
become interested in any contract or business in which it is
h i s official d u t y t o i n t e r v e n e .
This provision is applicable to experts, arbitrators and
private accountants who, in like manner, shall take part in any
contract or transaction connected with the estate or property
in appraisal, distribution, or adjudication of w h i c h they shall
have acted, and to the guardians and executors with respect to
the property belonging to their wards or estate.
Who are liable for possession of prohibited interest?

1. Public officer who, directly or indirectly, became interested in any
contract or business in which it w a s his official duty to intervene.
2. Experts, arbitrators, and private accountants who, in like manner,
took part in any contract or transaction connected with the estate or
property in the appraisal, distribution or adjudication of which they
had acted.
3. Guardians and executors with respect to the property belonging to
their wards or the estate.
Example of No. 1.
A municipal mayor who took direct part in the lease of the municipal
fishponds to himself may be held liable under the first paragraph of Art.
216, it being his official duty to intervene in behalf of the municipality in the
contract of lease of the fishponds. (See U.S. vs. Udarbe, 28 Phil. 382)
Actual fraud is not necessary.

Actual fraud is not necessary; the act is punished because of the
possibility that fraud may be committed or that the officer m a y place his
own interest above that of the government or party which he represents.
(U.S. vs. Udarbe, 28 Phil. 383)
Intervention must be by virtue of public office held.

V mortgaged his property to the Pension Board. Later, V transferred
the properties with the encumbrance to O. The accused w a s the secretary
and executive officer of the Pension Board. He acquired the properties
422
POSSESSION OF PROHIBITED INTEREST Art. 216
BY PUBLIC OFFICER
from O and assumed the obligation concerning the mortgage originally

constituted by V.
Held: The accused did not intervene in his capacity as secretary of the
Pension Board. He assumed the obligation of O in his personal capacity.
Hence, the official who intervenes in contracts or transactions which
have no connection w i t h his office cannot commit the crime defined in Art.
216. (People vs. Meneses, C.A., 40 O.G., Supp. 11, 134)
Sec. 14, Article VI of the 1987 Constitution provides:

No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice or before the Electoral
Tribunals, or quasi-judicial and other administrative bodies. Neither shall
he, directly or indirectly, be interested financially in any contract with, or
in any franchise or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including any government-
owned or -controlled corporation or its subsidiary, during his term of office.
He shall not intervene in any matter before any office of the government for
his pecuniary benefit or where he m a y be called upon to act on account of
his office.
Sec. 13, Article VII of the 1987 Constitution provides:

The President, Vice-President, the Members of the Cabinet and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.
Sec. 2, Art. IX-Aof the 1987 Constitution provides:

No member of a Constitutional Commission shall, during his tenure,
hold any office or employment. Neither shall he engage in the practice of
any profession or in the active management or control of any business which
in any way may be affected by the functions of his office, nor shall he be
financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or -controlled
corporations or their subsidiaries.
423
Chapter Four
MALVERSATION OF PUBLIC FUNDS
OR PROPERTY
What are the crimes called malversation of public funds or prop-

erty?
They are:
1. Malversation by appropriating, misappropriating or permitting
any other person to take public funds or property. (Art. 217)
2. Failure of accountable officer to render accounts. (Art. 218)
3. Failure of a responsible public officer to render accounts before
leaving the country. (Art. 219)
4. Illegal use of public funds or property. (Art. 220)
5. Failure to make delivery of public funds or property. (Art. 221)
A r t . 2 1 7 . Malversation of public funds or property —

Presumption of malversation. — A n y p u b l i c o f f i c e r w h o , b y
r e a s o n of t h e d u t i e s of h i s office, is a c c o u n t a b l e for p u b l i c
funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through a b a n d o n m e n t 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, shall suffer:
1. T h e p e n a l t y o f prision correccional i n i t s m e d i u m
1
and m a x i m u m periods, if the amount involved in the
misappropriation or malversation does not exceed 200
pesos.
•See Appendix "A," Table of Penalties, No. 15.
424
MALVERSATION Art. 217
2. T h e p e n a l t y o f prision mayor i n i t s m i n i m u m a n d
2
m e d i u m periods, if the a m o u n t involved is m o r e than 200
p e s o s b u t d o e s n o t e x c e e d 6,000 p e s o s .
3. T h e p e n a l t y o f prision mayor i n i t s m a x i m u m p e r i o d
t o reclusion temporal i n i t s m i n i m u m p e r i o d , i f t h e a m o u n t
3
i n v o l v e d i s m o r e t h a n 6,000 p e s o s b u t i s less t h a n 12,000

pesos.
4. T h e p e n a l t y o f reclusion temporal i n i t s m e d i u m
4
and maximum periods, if the amount involved is more than
12,000 p e s o s b u t is less t h a n 22,000 p e s o s . If t h e a m o u n t
e x c e e d s t h e l a t t e r , t h e p e n a l t y s h a l l b e reclusion temporal i n
5
i t s m a x i m u m p e r i o d t o reclusion perpetua.
In all c a s e s , p e r s o n s guilty of m a l v e r s a t i o n shall also
suffer the penalty of perpetual special disqualification and a
fine e q u a l to t h e a m o u n t of t h e f u n d s m a l v e r s e d or equal to
the total value of the property embezzled.
T h e failure of a public officer to h a v e duly f o r t h c o m i n g
any public funds or property with which he is chargeable,
u p o n d e m a n d b y a n y d u l y a u t h o r i z e d o f f i c e r , s h a l l b e prima
facie e v i d e n c e t h a t h e h a s p u t s u c h m i s s i n g f u n d s o r p r o p e r t y
to p e r s o n a l u s e s . (As amended by Rep. Act No. 1060)
What is embezzlement?
Malversation is otherwise called embezzlement. Note the word
"embezzled" in the phrase "or equal to the total value of the property
embezzled" in the penultimate paragraph of Art. 217.
Acts punishable in malversation.

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.
2
J
r
425
Art. 217 MALVERSATION
4. By being otherwise guilty of the misappropriation or malversation of

such funds or property.
The penalty for malversation is the same whether committed with

malice or through negligence or imprudence.
This is the exception to the provisions of Art. 67 which provides
penalties similar to those provided in Art. 366, denning and penalizing with
lower penalties, culpable felony or criminal imprudence.
Elements common to all acts of malversation under Art. 217.

(a) That the offender be a public officer.
(b) That he had the custody or control of funds or property by reason of the
duties of his office.
(c) That those funds or property were public funds or property for which
he was accountable.
(d) That he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them.
The offender in malversation under Art. 217 must be a public

officer.
The offender in malversation under Art. 217 m u s t be a public officer,
as the term is defined in Art. 203 of the Revised Penal Code.
Nature of the duties of the public officer, not name of office, is

controlling.
Note the phrase in the law: "who, by reason of the duties of his office,
is accountable for public funds or property."
That the person accused is a mere clerk and not a bonded officer is
of no legal consequence. The vital fact is that he is an employee of, or in
some way connected with, the government and that, in the course of his
employment, he receives money or property belonging to the government
for which he is bound to account. It is the nature of the duties, not the
relatively important n a m e given to the office, which is the controlling
factor in determining whether or not the accused is an accountable public
officer. (U.S. vs. Velasquez, 32 Phil. 157) An emergency employee entrusted
with the collection and/or custody of public funds may be held liable for
malversation, if he misappropriates such funds.
426
Certain officials held guilty of malversation.

1. Municipal president who spent for himself P60 which he had received
of the superintendent of schools, as rent for a house owned by the
municipality, w a s declared guilty of malversation, said amount having
been received by him by reason of his office. (U.S. vs. Togonon, 12 Phil.
516)
2. Justice of the peace who w a s found short after examination of his
accounts for fees, fines and costs, collected by h i m during certain
month of a year, w a s declared guilty of malversation. (U.S. vs. Sagun,
15 Phil. 178)
3. Municipal secretary acted as secretary of a committee composed of
the municipal president, treasurer, secretary and a councilor, which
conducted a public auction for the sale of fishing privileges. The bidders
deposited the amounts of their respective bids with that secretary. He
misappropriated t h e m for himself. Held: Guilty of malversation. The
money w a s deposited with h i m under authority of law. The obligation
of the secretary w a s to safeguard the money for the Government. (U.S.
vs. Lafuente, 37 Phil. 671)
Funds or property must be received in official capacity.

Thus, a municipal councilor who had received from another person
P5.00 for a permit to slaughter animals under a promise to secure a receipt
therefor or to account for the money, but misappropriated the same, is guilty
of estafa, not malversation. (U.S. vs. Radaza, 17 Phil. 286)
The councilor did not receive the money in his official capacity, because
he had no duty to collect or receive the slaughter fee.
When a public officer had no authority to receive the money for the
Government and upon receipt of the same he misappropriated it, the crime
committed is estafa, not malversation. (U.S. vs. Solis, 7 Phil. 195)
But when the public officer has (1) the official custody of public funds
or property or the duty to collect or receive funds due the government, and (2)
the obligation to account for them to the government, his misappropriation
of the same constitutes malversation.
A public officer having only a qualified charge of Government

property without authority to part with physical possession of it
unless upon order from his immediate superior, cannot be held
liable for malversation.
The defendant was forage master, having charge of Government forage
in the corral in Manila, subject to the orders of the quartermaster, who was
427
directly responsible to the Government therefor and without whose order no

forage could be issued.
Without orders from the quartermaster, the defendant sent out of the
corral 186 bales of hay and 138 sacks of oats which were received by private
persons not authorized to receive them.
Held: Defendant's possession of the property was not such as to render
its abstraction by him malversation. He is guilty of theft. (U.S. vs. Webster,
6 Phil. 394)
The abstraction of funds from a safe by a clerk without the consent
of the person charged with their custody, with the intent to convert them
to his own us.e, is held to be theft and not estafa (embezzlement) or one of
its kindred offenses, in a case wherein it appeared that while the clerk was
intrusted with the combination and the key of the safe, he had no control
over its contents and was not authorized to open the safe, or withdraw the
contents or any part thereof except by the express direction of the person
charged with the custody of the contents and responsible therefor. (U.S. vs.
Wickersham, 20 Phil. 440)
Webster and Wickersham cases not applicable when the accused

had authority to receive money pertaining to the Government.
It m u s t be noted that appellant himself does not seriously dispute his
accountability for the public funds received by him in custody by virtue of
his office. He only argues that because he could not disburse such public
funds without any order from superior authority, and therefore, had only a
"qualified charge of the properties that come into his possession," the crime
committed by him was theft not malversation, following the cases of U.S.
vs. Webster, 6 Phil. 393 and U.S. vs. Wickersham, 20 Phil. 444. We find
no merit in this contention. The vital fact is not so much the manner in
which appellant could lawfully perform his duties in relation to said funds
as the fact that he received money belonging to the Government for which
he was bound to account. It is, hence, the nature of his duties, and not his
performance of those duties, that determines the character of his offense.
(U.S. vs. Velasquez, 32 Phil. 157)
Moreover, the precedents relied upon by appellant are not squarely

applicable to the case at bar by reason of the fact that in said cases, the
defendants, unlike appellant herein, had no authority to receive money
pertaining to the Government and were, for that matter, not accountable
officers. Their only responsibility was towards their immediate superiors
who, in turn, were the ones directly responsible to the Government. It w a s
in those cases where our Supreme Court ruled that because of the qualified
nature of the defendants' responsibility, their conversion of Government
428
funds and property could only be penalized as theft and not malversation
(People vs. Alban, C.A., 64 O.G. 10365)
Liability of private individuals in conspiracy with public officers

guilty of malversation under Art. 217.
Both Groizard and Viada in their commentaries of the Spanish
Penal Code, which is identical w i t h t h e provisions of the Penal Code of the
Philippines, are of the opinion that even private parties who participate as
co-perpetrators in the offense of malversation could be penalized for the
commission of such crime.
Thus, a janitor and five policemen who aided the municipal treasurer
in the commission of malversation by taking the safe containing money from
the municipal treasury and carrying it to another place and then and there
taking the contents thereof, were held guilty of malversation, although they
were not accountable public officers. (U.S. vs. Ponte, et al., 20 Phil. 379)
The ruling in Ponte case is reiterated in People vs. Sendaydiego,
81 SCRA 120, where it w a s held that a private person conspiring with
an accountable public officer in committing malversation is also guilty of
malversation.
People vs. Longara and Cinco

(CA., 52 O.G. 3613)
Facts: Bonifacio Longara, traveling deputy in the office of the

Provincial Treasurer of Samar, received from the Office of the Provincial
Treasurer the sum of P30.000 in bills to be used in connection with the
payment of the teachers' salaries of the municipalities of Guiuan, Mercedes,
Maydolong and Borongan.
The Provincial Treasurer verbally ordered Francisco Cinco, a mailing
clerk, to escort Longara.
Cinco introduced Longara to a certain Henry Dan. Henry D a n lost no
time in telling Longara that he could counterfeit genuine money bills and
showed him five-peso notes bearing the same serial number; and that if
Longara had money in paper bills they could counterfeit the same. Longara
answered that he had no money but Cinco cut in and said, "That is good, if
you can entertain that it is something," obviously reminding Longara of the
government funds he had with him to pay the teachers.
At Tacloban City, Longara and Cinco rented a room at the Leyte Hotel.
Henry Dan made his appearance in the said room. Henry Dan borrowed
the money bills and assured that the government money would not be lost,
because they would merely be copied. Henry Dan never showed up. All the
money was gone.
429
Cinco, as mailing clerk, is not an accountable public officer.

Held: When a private person induces a public officer or by necessary
acts aids a public officer in consenting or permitting such public funds to fall
into the hands of a swindler, he must be held equally liable with such public
officer for malversation, for "when the law clearly defines a crime, as it has
here defined the crime of malversation, those who in any way participate
therein must be principals, accomplices or abettors thereof." (U.S. vs. Ponte,
20 Phil. 379, citing Groizard and Viada)
Under Art. 222, private individuals are liable for malversation.

The provisions of Art. 217 shall apply to (1) private individuals who,
in any capacity whatsoever, have charge of national, provincial or municipal
funds, revenues or property, and to (2) any administrator or depository of
funds or property attached, seized or deposited by public authority. (Art.
222)
Government funds include revenue funds and trust funds.

Government funds include not only revenue funds but also trust
funds. (People vs. Ramos, C.A., 38 O.G. 817)
Considered public funds:

1. Red Cross, Anti-Tuberculosis Society and Boy Scouts funds received
by an assistant cashier of the provincial treasurer by virtue of his
official position, for custody, acquire the character of public funds.
(People vs. Velasquez, 72 Phil. 98) Reason: Although Red Cross funds,
etc., are not strictly public funds, it is the intention of the law to m a k e
such funds partake of some of the characteristics of public funds, in
that they are trust funds placed in the custody of accountable public
officer for the purpose for which they are contributed by the public.
(People vs. De la Serna, C.A., 40 O.G., Supp. 12, 159)
2. Postal money orders, being in the nature of public funds. (People vs.
Villanueva, 58 Phil. 671)
3. Money received by the sheriff as redemption price (People vs. Benito,
CA., 36 O.G. 27), because it partakes of the nature of public funds.
4. Money received by the sheriff to indemnify him against any claim for
damages that might arise in connection with the levy made by h i m
upon property belonging to a judgment debtor, is a government fund.
(People vs. Ramos, C.A., 38 O.G. 817)
5. NARIC funds received by a municipal treasurer as ex oficio in charge
of the funds of the NARIC in the municipality. Although not public
430
funds, NARIC funds become impressed with that character when they
are entrusted to a public officer for his official custody. (People vs.
Aquino, 94 Phil. 805)
6. Proceeds of sale of sweepstakes tickets. Travelling sales agent of the
Philippine Charity Sweepstakes Office, who misappropriated the
proceeds of sale of sweepstakes tickets, is liable for malversation.
(People vs. Angco, 103 Phil. 33)
7. Funds of the Metropolitan Water District. Officers and employees
of Metropolitan Water District are public officers and its funds are
public funds. Since the Metropolitan Water District is a public or
government entity, its officers and employees are public officers as
that phrase is used under Article 203 of the Revised Penal Code,
and it is of no moment, for purposes of determining criminal liability
under the Code, whether one's position therein was a minor one.
(Maniego vs. People, G.R. No. L-2971, April 20, 1951) Likewise its
funds, although not strictly public funds, become impressed with the
character of public funds w h e n they are received by public officers
with the obligation to account for them. (People vs. Aquino, G.R. No.
L-6063, April 26, 1954)
The Metropolitan Water District is a creation of the Philippine

Legislature. The law creating this entity classifies it as a public
corporation, for the purpose of furnishing an adequate water supply
and sewerage service to the inhabitants of Manila and suburbs.
(Section 1, Act No. 2832, as amended by Act No. 4079, cited in People
vs. Bustillo, C.A., 52 O.G. 3598)
Public property.
Firearms or explosives seized from persons not authorized to possess
the same, which are in the custody of peace officers, are public property.
(See People vs. Magsino, C . A , 50 O.G. 675)
Materials, chiefly timber, of the Bureau of Commerce and Industry,
which are in the custody of a bonded warehouseman, are public property.
(People vs. Marino, 55 Phil. 537)
But from the moment the accused, a municipal treasurer, drew
government funds corresponding to the face value of the check which was
previously endorsed by the complainant, as payee of said check, the funds
became private property of the complainant which the accused was under
obligation to deliver to her. His non-delivery of the money resulted, not in
the commission of the crime of malversation, but in the commission of the
crime of estafa under par. Kb) of Article 315 of the Revised Penal Code.
(People vs. Concepcion, 2 C.A. Rep. 1019)
431
Private property may be involved in malversation.

The provisions of Art. 217 apply to administrator or depository of
funds or property attached, seized, or deposited by public authority, "even if
such property belongs to a private individual." (Art. 222)
Such phrase denotes the express intention of the Penal Code to make
accountable public officers guilty of malversation not only of national,
provincial or municipal funds, revenues or property, but also of other funds
or property, even if they belong to private individuals, as long as such funds
or property are placed in their custody. (People vs. De la Serna, C.A., 40 O.G.
Supp. 12, 159)
Different acts of malversation punished under Art. 217.

1. Appropriating public funds or property.
To appropriate public funds or property includes every attempt to
dispose of the same without right.
U.S. vs. Calimag

(12 Phil. 687)
Facts: The accused was municipal treasurer of the town of Solana,

Province of Cagayan, and also deputy provincial treasurer, receiving as
salary, for the former position, P25 per month and for the latter, P10 per
month. On December 2, 1907, the auditor for that district examined the
books and cash of the accused, and informed h i m that there w a s a difference
of P49.04 between the amount for which the accused w a s responsible and
the amount counted by said auditor. The auditor asked the accused how this
occurred, and he said that it w a s for the reason that he had to advance his
salary of PI 0 a month from July to November, or a total amount of P50.
It was proven at the trial that the accused had no authority to pay
himself his salary of P10 a month as deputy to the provincial treasurer.
Held: It m u s t be considered that he had made personal u s e of t h e fund
of the Government.
2. Taking or misappropriating public funds or property.

What is the meaning of "taking" as an act of malversation? Is it the
same as the meaning of the word "taking" in theft or robbery with violence
against or intimidation of persons?
Suppose, A, a teller in the office of the city treasurer, w a s leaving the
office of the treasurer with public funds which had been collected by him
from certain taxpayers, and then and there an N B I agent, who had been
informed of the plan of A to take public funds, arrested and searched him
432
and found the money in his pocket, is A guilty of frustrated or consummated

malversation?
It is believed that A is guilty of consummated malversation. The public
funds or property taken need not be misappropriated, as the word "take" is
separated by the word "or" from the word "misappropriation."
Misappropriating public funds or property was committed by the
treasurer of a municipality who spent for his personal benefit certain
amount of money which formed part of the funds under his charge.
3. Consenting or permitting, through abandonment or negligence, any

other person to take public funds or property.
When a public officer, accountable for public funds or property, violates
regulations of his office, that violation is evidence of negligence. Thus, a
municipal treasurer who cashed with public funds private checks drawn in
favor of his wife, the drawer not having enough cash in the drawee bank,
was held liable for malversation through negligence, the cashing of private
checks with public funds being a violation of standing regulations. (People
vs. Luntao, C.A. 50 O.G. 1182)
But in malversation, the negligence of the accountable public officer
m u s t be positively and clearly shown to be inexcusable, approximating
malice or fraud.
People vs. Bernas

(C.A., 53 O.G. 1106)
Facts: The defendant municipal treasurer requisitioned from the Office

of the Provincial Treasurer of Romblon for 200 large sacks of Naric rice. As
the rice was late in coming and the people were clamoring for the same, the
defendant personally w e n t to Romblon to follow up his requisition, but was
able to obtain only 85 small sacks of the local variety. The sale of these sacks
of rice to the public w a s brisk but before the same were sold, the 200 big
sacks of Naric rice previously requisitioned arrived. The defendant then had
a big quantity of Naric rice in stock in addition to the remaining local rice
still undisposed. The harvest season in Romblon was close at hand which
impending event would inevitably cause the prices to go considerably down.
Apprehensive of the possibility of being left with an unusually large stock of
rice unsold, the defendant wired the Provincial Treasurer, offering to return
the 200 big sacks of Naric rice; the latter, however, advised the defendant to
get in touch with other municipal treasurers in Sibuyan Islands and to try
to dispose the surplus stocks to them.
To effect a swifter disposal of the large stock of rice, defendant in a
trip to the provincial capital, requested authority from his superiors to sell
the rice on credit; the latter, however, warned him that such practice was
433
not sanctioned by existing regulations and to do so would be defendant's

own risk. At that time, he had no safe place to keep the rice, and there
was an impending typhoon. Faced with no better alternative, the defendant
decided to sell the rice on credit to the municipal employees whose wages
and salaries he himself had to disburse. This measure was adopted as it was
easy for him to collect whatever accounts were receivable from said vendees
on credit.
He admits that the sale of the rice on credit was done not in accordance
with existing rules and regulations, but he seeks exculpation from criminal
liability in that he did so under extreme necessity and in good faith.
Held: The defendant cannot be reasonably accused of having
consented, or through abandonment or negligence, permitted other persons
to take public funds or property in his custody simply because in selling the
rice on credit, he disposed of the cereal for valuable consideration as above
explained. This fact negatives negligence or criminal abandonment. But
assuming, arguendo, that his conduct in selling the rice on credit before the
advent of the typhoon constitutes negligence, we opine that to render such
element a basis for conviction under this article, the negligence involved
must be positively and clearly shown to be inexcusable, approximating
malice or fraud. (Viada, Vol. IV, pp. 498-499, 5th ed.; Cuello Calon, Vol.
II, Derecho Penal, p. 369) If there w a s any negligence exhibited by the
defendant in the instant case, we believe that the s a m e is excusable and
attaches no criminal liability whatsoever. Nonetheless, as the sales on
credit were admittedly made in violation of existing regulations, said
transactions are deemed to have been undertaken at the defendant's own
risk and personal responsibility and he m a y be held civilly accountable for
the unpaid accounts in favor of the municipal government of S a n Fernando,
Romblon.
Malversation through abandonment or negligence.
People vs. Pili

(C.A., 53 O.G. 4535)
Facts: The defendant, Benjamin Pili, w a s the postmaster of Coron,

Palawan. As such postmaster, he w a s accountable for public funds, consisting
of collections from telegraphic transfers, money orders, postal savings bank
deposits and proceeds from the sales of stamps. His cash accountability,
upon examination, was found short of P24.476.34.
For his defense, the defendant Pili claims that on the night of April
21, 1953, the drawer of his table w a s forced open and the cash, warrants
and checks which he kept in said drawer were stolen. Explaining the reason
why the cash, warrants and checks were in his table drawer instead of in his
434
iron safe with which he w a s provided, the defendant ventured the following:
At around 3 o'clock in the afternoon, the municipal treasurer requested him
to deposit the money which he (defendant) had in his possession, as the
municipal treasurer would need to pay the teachers the following morning.
Since it was already late in the afternoon when the request was made, the
defendant decided to work overtime so as to put his books in order and
prepare the money for the necessary deposit. He used a petromax lamp to
provide him the necessary light in his work that night. At about half past 10
o'clock in the evening, the petromax light w e n t out due to lack of kerosene.
Because he h a d no more light, the cash, checks, and warrants, which he
w a s then listing and which were on the top of his table, had to be placed
inside the drawer which he placed under lock. Total darkness, caused by the
extinction of the petromax light, prevented him (defendant) from returning
the money to the combination safe, claiming that after he had taken the
cash, checks, and warrants from the safe, he closed the same. At around 8:05
the next morning, the defendant, as usual, reported for work and found out
that the checks, money orders, and cash which he placed inside his drawer
were gone and the lock of the said drawer w a s forcibly opened.
Held: The accused w a s negligent in the performance of his duties as

an accountable officer. This negligence consisted in his failure to take the
necessary precaution or zeal, in returning the warrants, cash, and checks in
the combination safe in order to safeguard them. If he were not negligent,
at the time that the light of the petromax went out, he could have asked
the policeman on duty po furnish him the necessary light so that the money
which he claimed to have been counting and listing, could have been properly
returned to the safe where they rightfully belonged and should be kept. Even
on this score alone, the accused is already liable for the offense charged.
Test to determine negligence.

Negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and
reasonable man would do. The test by which to determine the existence of
negligence in a particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which
an ordinary prudent person would have used in the same situation? If not, he
is guilty of negligence. The law here in effect adopts the standard supposed
to be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman Law. The existence of negligence in a given case is not determined
by reference to the personal judgment of the actor in the situation before
him. The Law considers what would be reckless, blameworthy, or negligent
in the man of ordinary intelligence and prudence and determines liability to
that. (Leano vs. Domingo, G.R. No. 84378, July 4, 1991, citing Layugan vs.
Intermediate Appellate Court, 167 SCRA 363, 372-373 [1998])
435
The measure of negligence is the standard of care commensurate

with the occasion.
To measure the negligence which pervades a particular act or omission,
we must first determine upon a standard of care commensurate with the
occasion, and then endeavor to ascertain how far short of this standard falls
the act or omission in question.
Thus, where a municipal treasurer, to whom was entrusted for
safekeeping an opium pipe confiscated by the authorities, put the said pipe
in the drawer of an aparador in his office and the office was kept locked, it
cannot be said that he abandoned the property when it was stolen from the
aparador. (U.S. vs. Garces, 31 Phil. 637)
Note: The Supreme Court believes that the treasurer took steps to
guard the opium pipe which its value warranted.
Even if he had a safe, the treasurer cannot be expected to keep the
opium pipe there.
People vs. Torres

(C.A., 53 O.G. 4850)
Facts: Defendant Jose A. Torres w a s a First Lieutenant in the

Philippine Army and w a s assigned as special disbursing officer of the 22nd
Battalion Combat Team. As such disbursing officer, it was his duty to
collect the insurance premiums and salary loans by deducting them from
the base pay of the personnel of the battallion, and remit this collection
to the Government Service Insurance S y s t e m at the end of every month.
Under Torres performing clerical duties were Sergeants J u a n de la Cruz
and Antonio Llado.
The first and second remittances were made personally by Lieutenant
Torres in June and August, 1951. However, subsequent remittances from
September, 1951, up to September, 1953, were exclusively made by Sergeant
De la Cruz upon orders issued by Lieutenant Torres who said that "due to
the volume of my work and the trust I have on him, I gave him authority to
make payments."
The total of the remittances made from June, 1951, up to September,
1953, amounted to P72.265.51, and the total amount actually received
by the Government Service Insurance S y s t e m w a s only P15.807.47, thus
making P56,458.04 the total amount malversed.
As a finance officer of the Armed Forces of the Philippines, the
defendant knew that the meager pay of a sergeant in the Philippine Army
is barely enough to modestly maintain a family. He also knew that Sergeant
De la Cruz was sporting a car and had another woman aside from his lawful
wife. Yet, the defendant did not even bother to investigate or verify from
436
the Government Service Insurance System if Sergeant De la Cruz faithfully

delivered the amounts entrusted to him. Instead, the defendant continued
to entrust to De la Cruz large amounts of insurance premiums for more
than one year until the abstraction w a s discovered w h e n Sergeant Leonilo
Quiambao, who had been punctually paying his premiums, complained to
the defendant that he (Quiambao) could not secure a loan from the System
because, according to the System, Quiambao w a s not paying his insurance
premiums regularly.
Held: The fact that he ordered his trusted driver to accompany
Sergeant De la Cruz to the offices of the Government Service Insurance
S y s t e m whenever the latter delivered the insurance premiums, cannot
exonerate the defendant of h i s criminal liability. To entrust to a mere driver
the delicate task of supervising the proper delivery of big sums of money
is, to say the least, a proof of negligence and abandonment of his duties
as a finance officer rather than of diligence expected of an officer of the
Armed Forces of the Philippines. It is indeed regrettable that the defendant
now has to suffer the consequence of his subordinate's wrongdoing. The
defendant did not enjoy e v e n a single centavo of the amount malversed. But
Article 217 of the Penal Code is very clear and definite and we cannot do
otherwise but apply its provisions.
In m a l v e r s a t i o n not c o m m i t t e d t h r o u g h negligence, lack of criminal

intent or g o o d faith is a d e f e n s e .
W h e n an accountable public officer m a k e s a wrong payment through
honest mistake as to the law or to the facts concerning his duties, he is not
liable for malversation. He is only civilly liable.
Thus, a municipal officer who in good faith paid out of public funds,
persons who in accordance with the resolution of the municipal council,
but the payments were made in violation of the law, because of insufficient
vouchers or improper evidence, is only civilly liable, there being no criminal
intent. (See People vs. Elvina 24 Phil. 230; U.S. vs. Catolico, 18 Phil. 504)
P r e s u m p t i o n f r o m failure to have duly forthcoming public funds or

property u p o n d e m a n d .
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.
Thus, the failure or inability of the accused who was in custody of
public funds to refund the shortage upon demand by the duly authorized
offices constitutes prima facie evidence of malversation, notwithstanding
437
the fact that such demand had been merely made verbally. (U.S. vs. Kalingo,
46 Phil. 651)
The disappearance of public funds in the hands of an accountable
public officer is prime facie evidence of their conversion. (People vs. Velasco,
CA-G.R. No. 2546-R, Nov. 8, 1948)
An accountable public officer may be convicted of malversation even if
there is no direct evidence of misappropriation and the only evidence is that
there is a shortage in his accounts which he has not been able to explain
satisfactorily. (People vs. Mingoa, 92 Phil. 856; De Guzman vs. People, 119
SCRA 337; Quizo vs. Sandiganbayan, 149 SCRA 108)
The presumption may be rebutted.

If the accused has adduced evidence showing that he did not put the
missing funds or property to personal uses, t h e n that presumption is at an
end and the prime facie case is destroyed. (People vs. Bernas, C.A., 53 O.G.
1105, citing Supreme Court Cases; See Quizo vs. Sandiganbayan, supra)
Petitioner was able to nullify the inference that he did put the missing
funds to his personal use. After it w a s allegedly discovered that petitioner
received advance rentals of P20,700.00, he presented resolutions passed
by the Barangay Council appropriating a total of P8.400.00 to be paid to
suppliers of materials for the water system of the barangay hall and for the
barangay police uniforms. Notably, the lease agreement between Barangay
Pahina Central represented by petitioner as the barangay captain thereof,
and Mrs. Dora M. Lim, w a s executed for the purpose of raising funds for the
operations of the Barangay Tanods and the installation of a water system
in the barangay hall.
Petitioner did not also receive the P20.700.00 all in cash owing to the
deduction from the rentals due of P12.300.00 by Mrs. Lim to cover the cost of
medicines advanced to the barangay residents and tanods. Collection notices
were even in fact sent to those with unpaid accounts. Verily, petitioner
cannot be faulted, much less convicted, in consequence. Petitioner's act of
guaranteeing the payment thereof in order to assist his constituents who
are in dire need of medicines but lack financial capacity to pay therefore w a s
done in good faith under the belief that he w a s acting correctly for the good
of the residents in his community. (Madarang vs. People, G.R. No. 112314,
March 28, 2001)
The presumption could be overcome by satisfactory evidence of loss or

robbery committed by a person other than the accused. (U.S. vs. Kalingo,
supra)
The burden of defense rests upon the accused who should show that he
did not misapply or misappropriate such funds or that he had not allowed,
438
through his negligence or abandonment, someone to misappropriate or

make personal use of the same. (People vs. Hernandez, C.A., 45 O.G. 2206)
The return of the funds malversed is only mitigating, not exempting,

circumstance.
When his books were examined by the auditor, the assistant cashier in
the provincial treasury could not produce the amount. Later, the assistant
cashier offered to and did actually return the money. Held: The return of the
money was merely a mitigating circumstance. It cannot exempt him from
criminal liability. (People vs. Velasquez, 72 Phil. 98)
Where the partial restitution or restoration of the shortage was made
seven (7) years after the swindling took place and after one of the accused
w a s already convicted, there is no prompt refund of the shortage, and the
accused can not be credited with a mitigating circumstance similar and
analogous to voluntary surrender. There m u s t be "prompt refund of the
shortage." (People vs. Amante, C.A., 65 O.G. 5628)
When the shortage is paid by the public officer from his pocket, he
is not liable for malversation.
But if at the very m o m e n t when the shortage is discovered, the
accountable officer is notified thereof and he at once presents the money, no
prima facie evidence of the crime of malversation can be established.
A deputy auditor testified that on the 20th of May, 1908 he went to the
municipality of San Pedro, Macati for the purpose of making an inspection
of the office, cash, and accounts of the municipal treasury of said town, of
which Mariano Feliciano was the treasurer; that there resulted from the
examination a shortage of P53.05 in the cash of the municipal treasury;
that at the moment w h e n the difference was discovered he notified the
treasurer of it, and the latter took the sum o/"P53.05 from his pocket and
paid it, but he did not remember, however, whether he had questioned the
treasurer as to why the amount was not in the safe; and that, at the time
when the examination w a s made, there were other persons present, to wit,
the municipal president and the municipal secretary.
Held: If, according to the officer who made the examination of the
accounts, at the very moment when the shortage of P53.05 was discovered
and the treasurer was notified he at once presented the money, no prima
facie evidence of the crime of misappropriation can be established, nor any
proof whatever that there was such misappropriation. (U.S. vs. Feliciano,
15 Phil. 147)
439
Borrowing money to replace missing funds — when not malver-

sation.
The fact that the amount in cash which a municipal treasurer should
have in his cafe was fully covered by an amount borrowed from one of his
clerks does not relieve the said treasurer from criminal responsibility. As he
did not explain satisfactorily why the amount which should be in his hands
was in his clerk's possession, the presumption is that he misappropriated
the missing amount. (People vs. Divino, CA-G.R. No. 428, Oct. 1 3 , 1 9 3 8 )
But when the accountable officer is obliged to go out of his office and
borrow the sum alleged to be the shortage and later the missing amount
is found in some unaccustomed place in his office, he is not liable for
malversation. (U.S. vs. Pascual, 26 Phil. 234)
Demand not necessary in malversation.

Previous demand is not necessary in spite of the last paragraph of
Article 217.
The last paragraph of Art. 217 provides only for a rule of procedural
law, a rule of evidence and no more. (People vs. Tolentino, 69 Phil. 715)
Demand merely raises a prima facie presumption that missing funds
have been put to personal use. The demand itself, however, is not an element
of, and not indispensable to constitute malversation. (Morong Water District
vs. Office of the Deputy Ombudsman, G.R. No. 116754, March 17, 2000,
citing Nizurtada vs. Sandiganbayan, 239 SCRA 33)
May a person whose negligence made possible by the commission

of malversation by another be held liable as principal by
indispensable cooperation in the complex crime of malversation
through falsification of a public document by reckless negli-
gence?
The Supreme Court in the case of Javier, et al. vs. People, 105 Phil.
1294, ruled in the affirmative. In that case, the charge against certain audit
clerks was that, through their recklessly negligent participation in the
preparation of the falsified payrolls, they had, in effect, cooperated with their
co-defendant paymaster in the commission of the crime of malversation of
public funds. It w a s held that the defendant audit clerks who initialed the
payrolls in question were guilty of reckless negligence in not verifying the
correctness of the payrolls, thereby cooperating with their said negligence
in the falsification of said public documents and the misappropriation of
public funds that was made possible thereby.
440
FAILURE TO RENDER ACCOUNTS Art. 2 1 8
Damage to the Government, not necessary.

At most, lack of proof to that effect would affect the civil liability only
(People vs. Chavez, CA-G.R. No. 44398, Oct. 16, 1936)
Art. 217 states only, "the amount involved in the misappropriation
or malversation." The penalty for malversation in that article is based
on the amount involved, not on the amount of the damage caused to the
Government.
Thus, when the collections which the appellant failed to account for
amounted to P17,730.68, even if the amount of P I 1,800 was recovered, he
should be sentenced under par. 4, not under par. 3, of Art. 217. (Bacsarpa,
et al. vs. Court of Appeals, 99 Phil. 112)
A r t . 2 1 8 . Failure of accountable officer to render

accounts. — A n y p u b l i c o f f i c e r , w h e t h e r i n t h e s e r v i c e o r
separated therefrom by resignation or any other cause,
who is required by law or regulation to render accounts
to the Insular Auditor (now Commission on Audit), or to a
provincial a u d i t o r a n d w h o fails to do so for a period of t w o
m o n t h s after s u c h accounts should be rendered, shall be
p u n i s h e d b y prision correccional i n i t s m i n i m u m p e r i o d / o r
by a fine r a n g i n g f r o m 200 to 6,000 p e s o s , or both.
Elements:
1. That the offender is a public officer, whether in the service or separated
therefrom.
2. That he m u s t be an accountable officer for public tunds or property.
3. That he is required by law or regulation to render accounts to the
Commission on Audit, or to a provincial auditor.
4. That he fails to do so for a period of two months after such accounts
phould ho rendered.
Demand for accounting is not necessary.

Art. 218 does not require that there be a demand by the Commission
on Audit or provincial auditor that the public officer should render an
"See A p p e n d i x "A." T a b l e o f P e n a l t i e s , N o . 11.
441
Art. 219 FAILURE TO RENDER ACCOUNTS BEFORE
LEAVING THE COUNTRY
account. It is sufficient that there is a law or regulation requiring him to

render account.
Reason why mere failure to render account by an accountable

public officer is punished.
The reason for this is that the law does not so much contemplate the
possibility of malversation as the need of enforcing by a penal provision
the performance of the duty incumbent upon every public employee who
handles government funds to render an account of all he receives or has in
his charge by reason of his employment. (U.S. vs. Saberon, 19 Phil. 391)
Misappropriation is not necessary.

It is not essential that there be misappropriation. If there is
misappropriation, he would be liable also for malversation under Art. 217.
A r t . 2 1 9 . Failure of a responsible public officer to render

accounts before leaving the country. — A n y p u b l i c o f f i c e r w h o
unlawfully leaves or attempts to leave the Philippine Islands
without securing a certificate from the Insular Auditor (now
Commission on Audit), showing that his accounts have been
7
f i n a l l y s e t t l e d , s h a l l b e p u n i s h e d b y arresto mayor, o r a f i n e
r a n g i n g f r o m 2 0 0 t o 1,000 p e s o s , o r b o t h .
Elements:
(a) That the offender is a public officer.
(b) That he m u s t be an accountable officer for public funds or property.
(c) That he m u s t have unlawfully left (or be on the point of leaving)
the Philippines without securing from the Commission on Audit a
certificate showing that his accounts have been finally settled.
The act of leaving the country must be unauthorized or not per-

mitted by law.
This article begins with the phrase "any public officer who unlawfully
leaves," meaning that the act of leaving the Philippines is not authorized or
permitted by law.
442
ILLEGAL USE OF PUBLIC FUNDS Art. 220
A r t . 2 2 0 . Illegal use of public funds or property. — Any

public officer w h o shall a p p l y a n y public funds o r property
under his administration to any public use other than that
for w h i c h s u c h funds or property w e r e appropriated by law
o r o r d i n a n c e s h a l l s u f f e r t h e p e n a l t y o f prision correccional
8
in its m i n i m u m p e r i o d or a fine r a n g i n g from one-half
to the total value of the s u m misapplied, if by reason of
s u c h misapplication, any d a m a g e or embarrassment shall
have resulted to the public service. In either case, the
offender shall also suffer the penalty of temporary special
9
disqualification.
If no damage or embarrassment to the public service

h a s resulted, t h e p e n a l t y shall be a fine from 5 to 50 per cent
of the sum misapplied.
Elements:
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 h e applies the same to a public use other than that for which
such fund or property has been appropriated by law or ordinance.
There is no technical malversation if there is no law or ordinance

appropriating public funds or property for a particular purpose.
The Court has unequivocably ruled in Parungao vs. Sandiganbayan
G.R. No. 96025, May 15,1991 that in the absence of a law or ordinance
appropriating the public fund allegedly technically malversed (in that case,
the absence of any law or ordinance appropriating the CRBI fund for the
concreting of Barangay Jalung Road), the use thereof for another public
purpose (there, for the payment of wages of laborers working on projects
other than the Barangay Jalung Road) will not make the accused guilty of

443
Art. 220 ILLEGAL USE OF PUBLIC FUNDS
violation of Article 220 of the Revised Penal Code. (Abdulla vs. People, G.R.
No. 150129, April 6, 2005)
The public funds or property must be appropriated by law or

ordinance for a particular purpose.
The resolution of the authorities of the Mindanao Agricultural college,
a public entity, that the amounts paid by the students, to answer for the
payment of the instruments or equipment broken by them, should be later
refunded, nowhere implied that the repayment w a s to be made precisely out
of the money received, and as the refund could be made out of any available
funds of the college, there was no appropriation for a particular response
that was violated by the accused. (People vs. Montemayor, et al., G.R. No.
L-17449, Aug. 30, 1962)
Can the accused be held liable for malversation under Art. 217, if the
funds applied to a public use are not appropriated by law or ordinance?
Yes. That is appropriating public funds under Art. 217, because he
disposed of the same without right.
Example of illegal use of public funds.

When the school teachers and other municipal officers were unable to
receive their salaries because the treasurer applied the funds, appropriated
from the payment of said salaries, to another public use, there is detriment
and hindrance to the public service. (U.S. vs. Ejercito, 6 Phil. 80)
Illegal use of public funds or property distinguished from

malversation under Art. 217.
(1) The offenders are accountable public officers in both crimes.
(2) The offender in illegal use of public funds or property does not derive
any personal gain or profit; in malversation, the offender in certain
cases profits from t h e proceeds of t h e crime.
(3) In illegal use, the public fund or property is applied to another public
use; in malversation, the public fund or property is applied to the
personal use and benefit of the offender or of another person.
Technical malversation is not included in nor does it necessarily

include the crime of malversation of public funds.
A comparison of Art. 217 and Art. 220 reveals that their elements
are entirely distinct and different from the other. In malversation of public
funds, the offender misappropriates public funds for his own personal
444
FAILURE TO DELIVER PUBLIC FUNDS OR PROPERTY Art. 221
use or allows any other person to tale such public funds for the latter's
personal use. In technical malversation, the public officer applies public
funds under his administration not for his or another's personal use, but to
a public use other t h a n that for which the fund w a s appropriated by law or
ordinance. Technical malversation is, therefore, not included in nor does it
necessarily include the crime of malversation of public funds charged in the
information. Since the acts constituting the crime of technical malversation
were not alleged in the information, and since technical malversation does
not include, or is not necessarily included in the crime of malversation of
public funds, he cannot resultantly be convicted of technical malversation.
(Parungao vs. Sandiganbayan, et al., G.R. No. 96025, May 15, 1991)
A r t . 2 2 1 . Failure to make delivery of public funds or

property. — A n y p u b l i c o f f i c e r u n d e r o b l i g a t i o n t o m a k e
payment from Government funds in his possession, w h o
s h a l l f a i l t o m a k e s u c h p a y m e n t , s h a l l b e p u n i s h e d b y arresto
i0
mayor a n d a f i n e o f f r o m 5 t o 2 5 p e r c e n t o f t h e s u m w h i c h
he failed to pay.
T h i s p r o v i s i o n s h a l l a p p l y t o a n y p u b l i c officer w h o , b e i n g
ordered by competent authority to deliver any property in
his custody or under his administration, shall refuse to make
such delivery.
T h e fine shall b e g r a d u a t e d i n s u c h c a s e b y t h e v a l u e o f
the thing, provided that it shall not be less than 50 pesos.
Acts punishable under Art. 221.

1. By failing to make payment by a public officer who is under obligation
to make such payment from Government funds in his possession.
2. By refusing to make delivery by a public officer who has been ordered
by competent authority to deliver any property in his custody or under
his administration.
Elements of failure to make payment.

a. That the public officer has Government funds in his possession.
'"See Appendix "A," Table of Penalties, No. 1.
445
Art. 222 OFFICERS INCLUDED IN THE PRECEDING PROVISIONS
b. That he is under obligation to make payment from such funds.

c. That he fails to make the payment maliciously.
Refusal to make delivery of property must be malicious.

Under No. 2 (refusal to make delivery of property), the refusal must
be malicious also. Thus, a stenographer of the provincial board who retains
in his possession the stenographic notes taken by him for the purpose of
transcribing the same does not commit a violation of this article. Moreover,
the prosecution did not prove damage to public interest. (People vs. Jubila,
C.A., 38 O.G. 1796)
Art. 222. Officers included in the preceding provisions.

— The provisions of this chapter shall apply to private
individuals w h o in any capacity whatever, have charge of
any insular (now national), provincial, or municipal funds,
revenues, or property or to any administrator or depository
of funds or property attached, seized, or deposited by
public authority, e v e n if such property belongs to a private
individual.
Private individuals who may be liable under Arts. 217 to 221.

1. Private individuals who, in any capacity whatever, have charge of any
national, provincial or municipal funds, revenue, or property.
2. Administrator or depository of funds or property, attached, seized
or deposited by public authority, e v e n if such property belongs to a
private individual.
Purpose of Art. 222.

The purpose of Article 222 of the Revised Penal Code is to extend the
provisions of the Code on malversation to private individuals. (People vs.
Escalante, C.A., 49 O.G. 4397)
446
OFFICERS INCLUDED IN THE PRECEDING PROVISIONS Art. 222
Private individual liable for malversation.
U.S. vs. Rastrollo

(1 Phil. 22)
Facts: In civil proceedings to obtain a preventive attachment to

secure a debt contracted by accused Rastrollo, t h e n a defendant, 1121 ft.
of hose, among other properties belonging to said Rastrollo, was attached.
The attached property remained in the possession of Rastrollo who, with
the consent of the attorney for the plaintiff, sold the same to the Manila
Fire Department. Rastrollo failed to deliver the proceeds of the sale to the
attorney for the plaintiff immediately after selling the hose, and deposited
t h e proceeds of the sale in court after four (4) months following the day the
complaint w a s filed against h i m for embezzlement, (estafa)
Held: If the acts w i t h which the accused is charged constitute a crime
whatever, it would be that of malversation of property attached by judicial
order. The act could not be regarded as constituting estafa, because the
property alleged to have been misapplied was not the subject of a mere
private bailment but of a judicial deposit. This gives the depository a
character equivalent to t h a t of a public official, and breach of his obligation
is similar to the violation of the obligations imposed by public office.
Sheriffs and receivers fall under the term "administrator."

The words "administrator" and "depository" include the sheriffs and
receivers. Thus, if they misappropriate money or property under their
custody, they are liable for malversation.
Judicial administrator not covered by this article.

The word "administrator" here used does not include judicial
administrator appointed to administer the estate of a deceased person,
because he is not in charge of any property attached, impounded or placed
in deposit by public authority.
Conversion of effects in his trust makes him liable for estafa.
Private property is included, provided it is (1) attached, (2) seized,

or (3) deposited by public authority.
The expression, "even if such property belongs to a private individual,"
is a sweeping and all embracing statement so as to include a case where
private funds or property are involved, as long as such funds or property are
placed in the custody of accountable public officers. (People vs. De la Serna,
C.A., 40 O.G., Supp. 12, 159)
447
Chapter Five
INFIDELITY OF PUBLIC OFFICERS
What are the crimes classified under infidelity of public officers?

They are:
1. Infidelity in the custody of prisoners. (Arts. 223 and 224)
2. Infidelity in the custody of documents. (Arts. 226 to 228)
3. Revelation of secrets. (Arts. 229 and 230)
Section One. — Infidelity in the custody of prisoners
What are the crimes under infidelity in the custody of prisoners?

They are:
1. Conniving with or consenting to evasion. (Art. 223)
2. Evasion through negligence. (Art. 224)
3. Escape of prisoner under the custody of a person not a public
officer. (Art. 225)
A r t . 2 2 3 . Conniving with or consenting to evasion. — A n y

public officer w h o shall c o n s e n t to t h e e s c a p e of a p r i s o n e r
in his custody or charge, shall be punished:
1. By prision correccional in its medium and
1
maximum periods and temporary special disqualification in
its m a x i m u m period to perpetual special disqualification," if
the fugitive shall have b e e n s e n t e n c e d b y final j u d g m e n t t o
any penalty.

2
448
CONNIVING WITH OR CONSENTING TO EVASION Art. 223
2. B y prision correccional i n i t s m i n i m u m p e r i o d a n d
3
4
temporary special disqualification, in case the fugitive shall
not h a v e b e e n finally c o n v i c t e d but only held as a detention
prisoner for a n y c r i m e or violation of l a w or municipal
ordinance.
Elements:
2. That he had in his custody or charge, a prisoner, either detention
prisoner or prisoner by final judgment.
3. That such prisoner escaped from his custody.
4. That he w a s in connivance w i t h the prisoner in the latter's escape.
(U.S. vs. Bandino, 29 Phil. 459)
Act constituting the crime.

Art. 223 punishes any public officer who shall consent to the escape of a
prisoner in his custody or charge. Connivance with the prisoner (agreement
between the prisoner and the public officer) in his escape is an indispensable
element of the offense. (U.S. vs. Bandino, 29 Phil. 459)
A policeman who allowed a prisoner under his guard to go and buy
some cigarettes at a nearby store, thereby making possible the escape of the
prisoner, is not in connivance with the latter, the policeman not knowing
that he would escape.
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.
A detention prisoner is a person in legal custody, arrested for, and

charged with, some crime or public offense.
Thus, where a driver of a truck, driving without license, met an accident
and w a s taken to the hospital and, while being guarded by a policeman, he
3
4
449
Art. 223 CONNIVING WITH OR CONSENTING TO EVASION
escaped, the policeman is not liable for infidelity in the custody of prisoner,
because the driver who was not actually arrested was not a detention
prisoner. The information against the driver for driving without license was
filed in the Baguio municipal court two days after his escape. (People vs.
Liong, C.A., 47 O.G. 1321)
Release of detention prisoner who could not be delivered to the

judicial authority within the time fixed by law, is not infidelity in the
custody of prisoner.
Thus, where the chief of police released the detention prisoners,
because he could not file a complaint against them within the time fixed in
Art. 125, due to the absence of the justice of the peace, he is not guilty of
infidelity in the custody of prisoners. (People vs. Lancanan, 95 Phil. 375)
Leniency or laxity is not infidelity.

During his detention, the prisoner was allowed to eat in a restaurant
near the municipal building. During the town fiesta, the municipal president
acceded to the prisoner's request for permission to eat better meals in his
house. On all these occasions, the prisoner w a s duly guarded.
Held: This is only leniency or laxity in the performance of duty, not in
excess of his duties. (People vs. Evangelista, C.A., 38 O.G. 158)
Relaxation of imprisonment is considered infidelity.

There is real and actual evasion of service of a sentence w h e n the
custodian permits the prisoner to obtain a relaxation of his imprisonment
and to escape the punishment of being deprived of his liberty, t h u s making
the penalty ineffectual, although the convict may not have fled. (U.S. vs.
Bandino, 29 Phil. 459)
The offense defined in Art. 223 includes a case where the guard
allowed the prisoner, serving a 6-day sentence in the municipal jail, to sleep
in his house and eat there because the municipality h a d no outlay for the
food of prisoners. (See People vs. Revilla, C.A., 37 O.G. 1896)
The mayor is guilty under Art. 223, if he utilized the prisoner's services
for domestic chores in his house, including that of working as a cook. (See
People vs. Evangelista, C.A., 38 O.G. 158)
Infidelity in the Custody of Detained Persons under RA No. 9372.

Any public officer who h a s direct custody of a detained person or under
the provisions of RA No. 9372 and who by deliberate act, misconduct, or
inexcusable negligence causes or allows the escape of such detained person
450
EVASION THROUGH NEGLIGENCE Art. 224
shall be guilty of an offense and shall suffer the penalty of (a) 12 years and
1 day to 20 years of imprisonment, if the detained person has already been
convicted and sentenced in a final judgment of a competent court; and (b)
6 years and 1 day to 12 years imprisonment, if the detained person has not
been convicted and sentenced in a final judgment of a competent Court. (Sec.
44)
A r t . 2 2 4 . Evasion through negligence. — I f t h e e v a s i o n o f

the prisoner shall have taken place through the negligence
of t h e officer c h a r g e d w i t h t h e c o n v e y a n c e or c u s t o d y
of t h e e s c a p i n g p r i s o n e r , s a i d officer shall suffer t h e
p e n a l t i e s o f arresto mayor i n i t s m a x i m u m p e r i o d t o prision
correccional i n i t s m i n i m u m p e r i o d 5
a n d temporary special
6
disqualification.
Elements:
2. That he is charged with the conveyance or custody of a prisoner, either
detention prisoner or prisoner by final judgment.
3. That such prisoner escapes through his negligence.
Illustration of absence of 2nd element:

C w a s detailed as prison guard from 9:00 to 11:00 in the evening. S
was to succeed C from 11:00 of the same evening until 1:00 the following
morning. When the time came for S to take over his duty at 11:00, he was
sleeping; so C woke him up to deliver the post to him. S did not pay attention,
refused to be bothered and continued to sleep. A prisoner escaped while C
was the one in the guard post. Is S liable? No, the custody of the prisoner
w a s not yet transferred to him by C when the evasion took place. (People vs.
Silvosa, CA-G.R. No. 12736-R, April 30, 1955)
Illustration of absence of 3rd element:

A policeman was on guard duty. He unlocked the door of the jail to let
a detention prisoner go out to clean the premises of the police headquarters.
6
6
451
Art. 224 EVASION THROUGH NEGLIGENCE
The prisoner went to a nearby faucet to wash the rags. Upon his third trip to
the faucet, he walked behind the police headquarters, climbed over the wall
and escaped. Is the policeman liable? No, the policeman was not negligent.
Not every little mistake or distraction of a guard leading to prisoner's escape
is negligence under Art. 224. (People vs. Solis, C.A., 43 O.G. 580)
Also, a policeman who was to escort a detention prisoner and left his
charge to the patron of the boat to get certain papers, but the boat left with
the prisoner who later escaped, is not liable under Art. 224. (People vs.
Flosa, C.A., 47 O.G. 2452)
"If the evasion of the prisoner shall have taken place."

The opening sentence of Art. 224 states "If the evasion of the prisoner
shall have taken place." Under Art. 157, defining and penalizing evasion of
service of sentence, the prisoner m u s t be a convict by final judgment.
Is the detention prisoner included in the word "prisoner" in Art. 224?
Yes. In the cases of People vs. Solis, supra, and People vs. Flosa, supra,
the persons who escaped were merely detention prisoners.
What is punished in evasion thru negligence is such a definite

laxity as all but amounts to deliberate non-performance of duty on
the part of the guard.
Not every negligence or distraction of a guard is penalized; it is only
that positive carelessness that is short of deliberate non-performance of his
duties as guard that is the gravamen of the crime of infidelity under Art.
224. (People vs. Reyes, et al., C.A., 59 O.G. 6664)
People vs. Nava

(C.A., 36 O.G. 316)
Facts: A policeman permitted a prisoner under his guard to answer

a call of nature in a hidden shed outside of the building. The policeman
remained near the prisoner by the door. The prisoner escaped through the
back of the bath which w a s in a tumbledown condition.
Held: Not every little mistake or distraction of a guard leading
to prisoner's taking advantage of a dilapidated condition of the building
he finds in, is negligence under Art. 224. This neglect may be dealt with
administratively only.
Note: But if the guard left the toilet, where a prisoner w a s answering
a call of nature, and w e n t to the front door of the municipal building where
he stayed for about five minutes, w h e n the prisoner escaped, the guard
is liable for infidelity in the custody of prisoner through negligence. As a
452
EVASION THROUGH NEGLIGENCE Art. 224
guard, his duty w a s to see that the prisoner was safely returned to the jail
and not to be in any other place. (People vs. Gutierrez, Vol. 8, Appellate
Court Reports, p. 989)
Examples of infidelity thru negligence:

1. A policeman who, assigned to guard a prisoner, falls asleep, with the
result that the prisoner escapes, is guilty of negligence in the custody
of a prisoner. (People vs. Guiab, G.R. No. 3 9 6 3 1 , May 6, 1934)
2. The guard in permitting the prisoner, who later escaped, to go to
the nursery to gather gabi, considering that the place was grassy
and tall talahib w a s growing therein, w a s liable for infidelity in the
custody of prisoners thru negligence because the guard must have seen
immediately that it was as it had been a choice place for any prisoner
who may w a n t to escape. (People vs. Lagata, 83 Phil. 159)
3. The accused contended that his order to the prisoner to keep close
to him while he w a s answering the telephone call was sufficient
precaution under the circumstances. Held: Untenable. The adequate
precaution which should have been taken by him was to lock up the
prisoner before answering the telephone call. (Remocal vs. People, 71
Phil. 429)
There is only one penalty in Art. 224.

If the prisoner escapes through the negligence of the public officer,
the latter suffers the s a m e penalty regardless of whether the prisoner is a
convict or merely a detention prisoner.
The fact that the public officer recaptured the prisoner who had
escaped from his custody does not afford complete exculpation.
The circumstance that the appellant by himself and without help from
other peace officers immediately w e n t in pursuit of the escapee and did not
rest until he recaptured him three days later is not such a circumstance as
to afford complete exculpation. (People vs. Quisel, C.A., 52 O.G. 6975)
Liability of escaping prisoner:

1. If the fugitive is serving sentence by reason of final judgment, he is
liable for evasion of the service of the sentence under Art. 157.
2. If the fugitive is only a detention prisoner, he does not incur criminal
liability.
453
ESCAPE OF PRISONER UNDER THE CUSTODY
OF PRfVATE PERSON
A r t . 2 2 5 . Escape of prisoner under the custody of a

person not a public officer. — A n y p r i v a t e p e r s o n t o w h o m
the conveyance or custody of a prisoner or person under
arrest shall have b e e n confided, w h o shall commit any of the
offenses mentioned in the t w o preceding articles, shall suffer
the penalty next lower in degree t h a n that prescribed for the
p u b l i c officer.
Elements:
1. That the offender is a private person.
2. That the conveyance or custody of a prisoner or person under arrest is
confided to him.
3. That the prisoner or person under arrest escapes.
4. That the offender consents to the escape of the prisoner or person
under arrest, or that the escape t a k e s place through his negligence.
Escape of person under arrest while in the custody of private

individual.
While in infidelity in the custody of prisoners committed by public
officers (Arts. 223 and 224) the Code speaks of "prisoner," in the escape
of prisoner under the custody of a person not a public officer (Art. 225),
the Code mentions also "person under arrest" w h o s e conveyance or custody
m u s t be confided to the offender.
Art. 225 is not applicable if a private person w a s the one who made
the arrest and he consented to the escape of t h e person he arrested.
The penalty for a private person liable under Art. 225 is only
imprisonment one degree lower than that prescribed for the public
officer in Art. 223 or Art. 224.
There is no penalty "next lower in degree than" perpetual or temporary
special disqualification, prescribed for public officer, in Scale No. 2 in Art.
71.
454
REMOVAL, CONCEALMENT OR DESTRUCTION
OF DOCUMENTS
Section T w o . — I n f i d e l i t y in the custody of documents
What are the crimes under infidelity in the custody of documents?

They are:
1. Removal, concealment or destruction of documents. (Art. 226)
2. Officer breaking seal. (Art. 227)
3. Opening of closed documents. (Art. 228)
A r t . 2 2 6 . Removal, concealment or destruction of docu-

ments. — A n y p u b l i c o f f i c e r w h o s h a l l r e m o v e , d e s t r o y , o r
conceal documents or papers officially entrusted to him,
shall suffer:
1
1. T h e p e n a l t y o f prision mayor a n d a f i n e n o t e x c e e d -
i n g 1,000 p e s o s , w h e n e v e r s e r i o u s d a m a g e s h a l l h a v e b e e n
caused thereby to a third party or to the public interest.
2. T h e p e n a l t y o f prision correccional i n i t s m i n i m u m
8
a n d m e d i u m p e r i o d a n d a f i n e n o t e x c e e d i n g 1,000 p e s o s ,
whenever the damage caused to a third party or to the public
interests shall not have been serious.
In either case, the additional penalty of temporary
special disqualification in its m a x i m u m period to perpetual
9
special disqualification shall be imposed.
Elements:
1. That the offender be a public officer.
2. That he 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.

9
455
OF DOCUMENTS
If any of these circumstances be not present, the crime disappears, or

rather, does not arise. (Groizard, Penal Code of 1870, Vol. IV, 146, edition of
1891, cited in People vs. Lineses, C.A., 40 O.G., Supp. 14, 4773)
The public officer must be officially entrusted with the documents

or papers.
Only public officers who have been officially entrusted with the
documents or papers can be held liable under Art. 226.
Thus, the stenographer who removes or destroys the record of a case
kept by the clerk of court is not guilty of a violation of Art. 226, because the
stenographer is not officially entrusted with the record.
The public officer who is officially entrusted with the record is the
clerk of court.
The document must be complete and one by which a right could

be established or an obligation could be extinguished.
Thus, the municipal president who, in a fit of anger, mutilated the
payroll of the town, is not guilty of infidelity in the custody of document by
destroying it, it appearing that said payroll had not yet been approved and
signed by him, as required by law. (People vs. Camacho, 44 Phil. 484)
Books, periodicals, pamphlets, etc., are not documents.

A package containing a book, sent through mail by C.O.D. system, is
not a document, so that a postmaster who removes the s a m e does not violate
this provision. A document is a written instrument by which something is
proven or made of record. (People vs. Agnis, 47 Phil. 945)
"Or papers officially entrusted to him."

Under this article, not only documents but also papers may be
involved. The word "papers" includes checks, promissory notes, and paper
money. (Webster's Dictionary)
Thus, a postmaster to whom a letter containing paper money was
delivered to be forwarded by registered mail, opened said letter and
abstracted money orders, or the money bills enclosed therein, w a s held
guilty of faithlessness in the custody of papers. (U.S. vs. Gorospe, 31 Phil.
285; U.S. vs. Filoteo, 14 Phil. 73; U.S. vs. De Toro, 15 Phil. 181; U.S. vs.
Misola, 14 Phil. 142; U.S. vs. Marino, 10 Phil. 652)
456
OF DOCUMENTS
Post office official who retained the mail without forwarding the
letters to their destination is guilty of infidelity in the custody of
papers.
The simple act of retaining the mail without forwarding the letters to
their destination, even though without opening them or taking the moneys
they contained, already constitutes infidelity on the part of the post office
official. (U.S. vs. Marino, 10 Phil. 652; U.S. vs. Pena, 12 Phil. 362)
Infidelity in the custody of document, distinguished from

malversation and falsification.
When the postmaster received money orders, signed the signatures

of the payees thereon, collected and appropriated the respective amounts
thereof, the postmaster is guilty of malversation and falsification, the
latter crime having been committed to conceal the malversation. (People
vs. Villanueva, 58 Phil. 672; People vs. Garalde, 52 Phil. 1000) But when
the postmaster receives letters or envelopes containing money orders for
transmission, and the money orders are not sent to the addressees, the
postmaster cashing the s a m e for his own benefit, he is guilty of infidelity in
the custody of papers.
Reason why taking contents of mail by postmaster is infidelity in

the custody of documents or papers.
In addition to the actual injury done to the owner, the uncertainty as
to the safety of such letters arising from thefts of their contents amounts
to a real and positive injury to the postal service and, hence, to the public
interests. (U.S. vs. Marino, 10 Phil. 652)
Liability of person other than an officer or employee of the Bureau

of Posts.
Sec. 2756 of the Revised Administrative Code punishes the unlawful
opening or detention of mail matter by any person other than an officer or
employee of the Bureau of Posts, by a fine of not more than P1,000 or by
imprisonment for not more than one year, or both.
If the culprit is an officer or employee of the Bureau of Posts, Art. 226
is applicable. (U.S. vs. Santos, 37 Phil. 453)
Money bills received as exhibits in court are papers.

A deputy clerk of court who, having received in his official capacity
several notes or paper money as exhibits in a case, afterward took away the
457
OF DOCUMENTS
said money is guilty of this crime, because the money bills are papers used
as exhibits. (People vs. Abraham, G.R. No. 17628, Feb. 1 7 , 1 9 2 2 )
Acts punishable in infidelity in the custody of documents:

1. By removing, or
2. By destroying, or
3. By concealing, documents or papers officially entrusted to the offending
public officer.
It is not necessary that the act of removal must be coupled with proof
of intention to conceal. The word "or" is a disassociation and independence
of one thing from each of the other things mentioned. While in the
interpretation of statutes, "or" may be read "and" and vice versa, it is so
only when the context so requires. (Kataniag vs. People, 74 Phil. 45)
Accordingly, removal, destruction, and concealment m u s t be viewed as
distinct modes of committing the offense.
The removal must be for illicit purpose.

To warrant a finding of guilt for the crime of infidelity in the custody of
documents, the act of removal, as a mode of committing the offense, should
be coupled with criminal intent or illicit purpose. (Manzanaris vs. People,
127 SCRA 201)
Thus, where the act of removal is actuated with lawful or commendable
motives, as when documents are removed from their usual place to secure
them from imminent danger of loss or destruction, there would be no crime
committed.
The removal is for an illicit purpose when the intention of the

offender is —
(a) to tamper with it, or
(b) to profit by it, or
(c) to commit an act constituting a breach of trust in the official care
thereof. (Kataniag vs. People, supra)
When deemed consummated.

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. (Kataniag vs. People, supra)
458
OF DOCUMENTS
Infidelity in the custody of document by destroying or concealing

it, does not require proof of illicit purpose.
The reason for this opinion is that while in the removal of documents,
the accused m a y have a lawful or commendable motive, in destroying or
concealing them, the offender could not have a good motive.
Delivering document to the wrong party is infidelity in the custody

thereof.
Thus, an emergency helper on a daily w a g e basis in the Bureau of
Treasury, who, being entrusted w i t h t h e delivery of official papers to the
different sections and divisions of the bureau, delivered a backpay certificate
to a wrong party, instead of returning it to the releasing clerk after it w a s
signed by the Treasurer, with the result that the owner thereof could not
m a k e withdrawal on his backpay certificate, is guilty of infidelity in the
custody of document. He betrayed public faith and trust in his custody of
public documents. (People vs. Irineo, C.A., 53 O.G. 2827)
There must be damage, great or small.

The fourth element exists —
1. Whenever serious damage is caused thereby to a third party or
to the public interest.
2. Whenever the damage caused to a third party or to the public
interest is not serious.
Damage in this article m a y consist in mere -alarm to the public or in
the alienation of its confidence in any branch of the government service.
(Kataniag vs. People, supra)
Damage caused to a third party or to the public interest.

In a case where the accused, employee of the Bureau of Posts,
returned the money bills which he had stolen after opening the letters, to
avoid prosecution, it w a s held that although there w a s no damage caused
to third parties (owners of the letters), there was damage to the public
interest caused by the accused. He was convicted of infidelity in the custody
of documents. (U.S. vs. Marino, 10 Phil. 652)
Illustration of damage to the public interest.

A sorter and filer of money orders cashed in the office, who tore a
money order which had been falsified is guilty of infidelity in the custody
of a document, for by the destruction of that money order, the prosecution
459
Art. 227 OFFICER BREAKING SEAL
of the party who falsified it was rendered difficult, which indisputably is a

damage to the public interest. (People vs. Paloma, C.A., 40 O.G. 2087)
A r t . 2 2 7 . Officer breaking seal. — A n y p u b l i c o f f i c e r

charged with the custody of papers or property sealed by
proper authority, w h o shall break the seals or permit t h e m to
b e b r o k e n , s h a l l s u f f e r t h e p e n a l t i e s o f prision correccional
1 0
i n its m i n i m u m a n d m e d i u m periods, temporary special
1 1
d i s q u a l i f i c a t i o n , a n d a f i n e n o t e x c e e d i n g 2,000 p e s o s .
Elements:
2. That he is charged with the custody of papers or property.
3. That these papers or property are sealed by proper authority.
4. That he breaks the seals or permits t h e m to be broken.
Crime is committed by breaking or permitting seals to be broken.

It is the breaking of seals, not the opening of a closed envelope, which
is punished under this article.
The opening of public papers by breaking seals should be done only by
the proper authority. Hence, the public officer liable under this article m u s t
be the one who breaks the seals without authority to do so.
Damage or intent to cause damage is not necessary.

Where documents are sealed by competent authorities, it is evident
that the purpose thereof is to insure their preservation.
It is sufficient that the seal is broken, even if the contents are not
tampered with. Art. 227 does not require t h a t there be damage caused or
that there be intent to cause damage.
10
460
OPENING OF CLOSED DOCUMENTS Art. 228
A r t . 2 2 8 . Opening of closed documents. — A n y p u b l i c

officer n o t i n c l u d e d i n t h e p r o v i s i o n s o f t h e n e x t p r e c e d i n g
article w h o , without proper authority, shall o p e n or shall
permit to be o p e n e d any closed papers, documents or objects
e n t r u s t e d t o h i s c u s t o d y , s h a l l s u f f e r t h e p e n a l t i e s o f arresto
mayor,12 t e m p o r a r y s p e c i a l d i s q u a l i f i c a t i o n a n d a f i n e n o t
1 3
e x c e e d i n g 2,000 p e s o s .
Elements:
2. That any closed papers, documents, or objects are entrusted to his
custody.
3. That he opens or permits to be opened said closed papers, documents
or objects.
4. That he does not have proper authority.
Meaning of the word "custody."

The word "custody" m e a n s a guarding or keeping safe; care.
(See People vs. Irineo, C.A., 53 O.G. 2827. Art. 226 uses the phrase
"officially entrusted to him," not to h i s custody.)
C l o s e d d o c u m e n t s m u s t be e n t r u s t e d to the c u s t o d y of the a c c u s e d
by reason of his office.
Three envelopes containing election returns and addressed to the
provincial treasurer were handed by the P.C. sergeant to the municipal
treasurer who put thereon sealing wax. The municipal treasurer was
accused of opening the envelopes, taking out the election returns contained
therein and later returning them inside their respective envelopes.
Held: The accused did not actually become the custodian of three
envelopes turned over to him by the P.C. sergeant and redelivered by the
accused to said sergeant after having applied sealing wax to the same. The
envelopes were not addressed to the accused. They were addressed to the
Provincial Treasurer and were on the desk of the accused just for the period
of time necessary to put thereon the sealing wax. Under Art. 228, the closed
,2
13
461
Art. 229 REVELATION OF SECRETS BY AN OFFICER
documents must be entrusted to (the custody of) the accused by reason of his
office. (People vs. Lineses, C.A., 40 O.G., Supp. 14, 4773)
The act should not fall under Art. 227.

What would be the offense committed if, in opening closed papers or
object, the public officer broke the seal?
The offense would be breaking seal, and not the crime of opening a
closed document, because the offender m u s t be a public officer "not included
in the provisions of the next preceding article."
Damage or intent to cause damage is not an element of the

offense.
Art. 228 does not require that there be damage or intent to cause
damage.
Section Three. — R e v e l a t i o n of secrets
What are the crimes under revelation of secrets by public officers?

They are:
1. Revelation of secrets by an officer. (Art. 229)
2. Public officer revealing secrets of private individual. (Art. 230)
Art. 2 2 9 . Revelation of secrets by an officer. — Any

public officer w h o shall r e v e a l a n y s e c r e t k n o w n t o h i m b y
reason o f h i s official c a p a c i t y , o r shall w r o n g f u l l y d e l i v e r
papers or copies of papers of which he may have charge and
which should not be published, shall suffer the penalties of
prision correccional i n i t s m e d i u m a n d m a x i m u m p e r i o d s , 1 4
perpetual special disqualification, a n d a fine not exceeding

2,000 p e s o s i f t h e r e v e l a t i o n o f s u c h s e c r e t s o r t h e d e l i v e r y o f
such papers shall have caused serious d a m a g e to the public
i n t e r e s t ; o t h e r w i s e , t h e p e n a l t i e s o f prision correccional i n
'"See Appendix "A," Table of Penalties, No. 15.
462
REVELATION OF SECRETS BY AN OFFICER Art. 229
1 9 1 6
its m i n i m u m period, temporary special disqualification,
a n d a fine n o t e x c e e d i n g 500 p e s o s shall be i m p o s e d .
Acts punishable as revelation of secrets by an officer.

1. By revealing any secrets known to the offending public officer by
reason of his official capacity.
2. By delivering wrongfully papers or copies of papers of which he may
have charge and which should not be published.
Elements of No. 1:
a. That the offender is a public officer.
b. That he knows of a secret by reason of his official capacity.
c. That he reveals such secret without authority or justifiable reasons.
d. That damage, great or small, be caused to the public interest.
Secrets must affect public interests.

If the secret revealed does not affect public interest, the revelation
would constitute no crime at all. (Albert)
Espionage is not contemplated in this article.

This article does not include the revelation of secrets of the State to a
belligerent nation, because such acts are already defined and punished as
espionage in Art. 117 or Commonwealth Act No. 616.
This article punishes minor official betrayals, infidelities of little
consequence, affecting usually the administration of justice, executive or
official duties, or the general interest of the public order. (Albert)
Secrets of private persons not included.

The secrets here are not secrets of private individuals.
Elements of No. 2.
15
"•See Appendix "A," Table of Penalties, No. 40.
463
Art. 229 REVELATION OF SECRETS BY AN OFFICER
2. That he has charge of papers.

3. That those papers should not be published.
4. That he delivers those papers or copies thereof to a third person.
5. That the delivery is wrongful.
6. That damage be caused to public interest.
The offender must have charge of papers or copies of paper.

The word "charge" means control or custody. It seems that if the public
officer is merely entrusted with the papers but not with the custody of the
papers, he is not liable under this provision.
Distinguished from infidelity in the custody of document or papers

by removing the same.
If the papers contain secrets and therefore should not be published,
and the public officer having charge thereof removes and delivers them
wrongfully to a third person, the crime is revelation of secrets by a public
officer.
If the papers do not contain secrets, their removal for an illicit purpose
is infidelity in the custody of documents.
Damage is an element of the offenses defined in Art. 229.

This article provides a higher penalty, if the act "shall have caused
serious damage to the public interest; otherwise," a lesser penalty is imposed.
The use of the word "serious" modifying "damage" indicates t h a t the lesser
penalty refers to causing damage which is not serious.
It would seem that material damage to third person is not necessary.
Examples of secrets revealed by public officer:

(a) Peace officers who published instructions received by t h e m for t h e
arrest of the culprit, thereby enabling h i m to escape and resulting in
the failure of the law and authority.
(b) Provincial fiscal who revealed the records of all investigation conducted
by him to the defendant who thereby learned of the evidence of the
prosecution.
464
REVEALING SECRETS OF PRIVATE INDIVIDUALS Art. 230
A r t . 2 3 0 . Public officer revealing secrets of private

individual. — A n y p u b l i c o f f i c e r t o w h o m t h e s e c r e t s o f a n y
p r i v a t e i n d i v i d u a l shall b e c o m e k n o w n b y r e a s o n o f h i s office
w h o shall reveal s u c h secrets, shall suffer the penalties of
arresto mayor" a n d a fine n o t e x c e e d i n g 1 , 0 0 0 p e s o s .
Elements:
2. That he knows of the secrets of a private individual by reason of his
office.
3. That he reveals such secrets without authority or justifiable reason.
"Shall reveal such secrets."

Revelation to one person is sufficient, for public revelation is not
required.
When the offender is an attorney-at-law or a solicitor, Art. 230 is

not applicable.
If the offender is an attorney-at-law or a solicitor and he reveals the
secrets of his client learned by h i m in his professional capacity, he is not
liable under this article, but under Art. 209.
Damage to private individuals not necessary.

It is not necessary that damage is suffered by the private individual.
The reason for this provision is to uphold faith and trust in public
service.
"See Appendix "A," Table of Penalties No. 1.
465
Chapter Six
OTHER OFFENSES OR IRREGULARITIES
BY PUBLIC OFFICERS
Section One. — Disobedience, refusal of assistance, and

maltreatment of prisoners
A r t . 2 3 1 . Open disobedience. — A n y j u d i c i a l o r e x e c u t i v e
officer w h o shall o p e n l y r e f u s e t o e x e c u t e t h e j u d g m e n t ,
decision or order of any superior authority made within the
scope of the jurisdiction of t h e latter a n d i s s u e d w i t h all t h e
l e g a l f o r m a l i t i e s , s h a l l s u f f e r t h e p e n a l t i e s o f arresto mayor
i n i t s m e d i u m p e r i o d t o prision correccional i n i t s m i n i m u m
1
period, temporary special disqualification in its m a x i m u m
2
p e r i o d , a n d a fine n o t e x c e e d i n g 1,000 p e s o s .
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 w a s 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. (2 Viada 575)
Act constituting the crime.

Open disobedience is committed by any judicial or executive officer
who shall openly refuse to execute the judgment, decision, or order of any
superior authority.

2
466
DISOBEDIENCE TO ORDER OF SUPERIOR Art 232
WHEN SUSPENSION THEREOF WAS DISAPPROVED
Examples of open disobedience:

(a) A municipal secretary who openly refuses to deliver to the mayor,
after having been repeatedly requested to do so, the keys of the doors
of the municipal building and the seal under his custody. (Guevara)
There is in this case an open refusal to obey an order.
(b) Mandamus by Supreme Court ordering lower court to receive certain
evidence. If the lower court openly refuses to obey said judicial order,
there is a violation of this article.
A r t . 2 3 2 . Disobedience to order of superior officer, when

said order was suspended by inferior officer. — A n y p u b l i c
officer w h o , h a v i n g for a n y r e a s o n s u s p e n d e d t h e e x e c u t i o n
of the orders of his superiors, shall disobey such superiors
after the latter h a v e d i s a p p r o v e d the suspension, shall suffer
t h e p e n a l t i e s o f prision correccional i n i t s m i n i m u m a n d
3
m e d i u m periods a n d perpetual special disqualification.
Elements:
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.
Reason for the provision.

The law has taken into account that a superior officer may sometimes
err, and that orders issued by him may proceed from a mistaken judgment.
For this reason, it entitles a subordinate to suspend in such cases the
order issued, to submit his reason to his superior in order that the latter
may give them proper weight, if they are entitled to any. So far there is no
crime.
3
467
Art. 233 REFUSAL OF ASSISTANCE
But if the superior disapproves the suspension of his order and

reiterates it to his subordinate, the latter must obey it at once and refusal
to do so constitutes contempt, for by his resistance and refusal to do so, he
undertakes to dictate to his superior. (Albert)
This article does not apply if the order of the superior is illegal.
Thus, if the order of the superior is illegal, the subordinate has a legal
right to refuse to execute such order, for under the law, obedience to an
order which is illegal is not justified and the subordinate who obeys such
order may be held criminally liable. (See Art. 11, par. 6)
A r t . 2 3 3 . Refusal o f assistance. — T h e p e n a l t i e s o f arresto

mayor i n i t s m e d i u m p e r i o d t o prision correccional i n i t s
4
minimum period, perpetual special disqualification and a
fine n o t e x c e e d i n g 1,000 p e s o s , s h a l l b e i m p o s e d u p o n a p u b l i c
officer w h o , u p o n d e m a n d f r o m c o m p e t e n t a u t h o r i t y , shall fail
to lend his cooperation towards the administration of justice
or other public service, if such failure shall result in serious
damage to the public interest, or to a third party; otherwise,
5
arresto mayor i n i t s m e d i u m a n d m a x i m u m p e r i o d s and a
fine not exceeding 500 pesos shall be imposed.
Elements:
2. That a competent authority d e m a n d s 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.
"Upon demand from competent authority."

There must be a demand from competent authority. Hence, if the chief
of police received from a private party a subpoena, issued by a fiscal, with
a request to serve it upon a person to be a witness, and the chief of police
maliciously refused to do so, the latter is not liable.
4
6
468
REFUSAL TO DISCHARGE ELECTIVE OFFICE Art. 234
Example of refusal of assistance.

A chief of police who flatly and insolently refuses to serve summons
of a provincial fiscal, after having been duly requested to do so by the latter
official, is guilty of a violation of this article. (See People vs. Castro, G.R. No.
19273, March 16, 1923)
Is damage to public interest essential?

Yes, there m u s t be damage to the public interest or to a third party,
great or small.
If the failure to lend cooperation results in "serious damage to the
public interest or to a third party," the penalty is higher; "otherwise"
(meaning if the damage is not serious), the penalty is lower.
A r t . 2 3 4 . Refusal to discharge elective office. — The

p e n a l t y o f arresto mayor* o r a f i n e n o t e x c e e d i n g 1 , 0 0 0 p e s o s ,
or both, shall be imposed u p o n any person who, having been
e l e c t e d by p o p u l a r e l e c t i o n to a p u b l i c office, shall r e f u s e
without legal motive to be sworn in or to discharge the duties
of s a i d office.
Elements:
1. That the offender is elected by popular election to a public office.
2. That he refuses to be sworn in or to discharge the duties of said
office.
3. That there is no legal motive for such refusal to be sworn in or to
discharge the duties of said office.
"Shall refuse without legal motive."

The refusal must be without legal motive. If the elected person is
underage, or otherwise disqualified, his refusal to be sworn in or to discharge
the duties of the office is justified.
469
Art. 235 MALTREATMENT OF PRISONERS
Reason why refusal to discharge elective office is punished.

The reason is that once an individual is elected to an office by the will
of the people, the discharge of the duties of said office becomes a matter of
duty, not only a right.
Art. 234 not applicable to appointive officer.

Note that this Article penalizes refusal to discharge the duties of an
elective office. Hence, refusal to discharge the duties of an appointive office
is not covered by this Article.
A r t . 2 3 5 . Maltreatment of prisoners. — T h e p e n a l t y o f
prision correccional i n i t s m e d i u m p e r i o d t o prision mayor
7
in its m i n i m u m period, in a d d i t i o n to h i s liability for t h e
physical injuries or d a m a g e caused, shall be imposed u p o n
a n y public officer o r e m p l o y e e w h o shall o v e r d o h i m s e l f
in the correction or handling of a prisoner or detention
prisoner under his charge by the imposition of punishments
not authorized by the regulations, or by inflicting such
punishments in a cruel and humiliating manner.
If the purpose of the m a l t r e a t m e n t is to extort a
confession, or to obtain some information from the prisoner,
the offender shall be p u n i s h e d b y prision mayor i n i t s
8 9
minimum period, temporary special disqualification and a
fine n o t e x c e e d i n g six t h o u s a n d (P6,000) p e s o s , i n a d d i t i o n t o
h i s l i a b i l i t y f o r t h e p h y s i c a l i n j u r i e s o r d a m a g e c a u s e d . (As
amended by E.O. No. 62, Nov. 7,1986)
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:
7
See Appendix "A," Table of Penalties, N o . 7.
9
470
MALTREATMENT OF PRISONERS Art. 235
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 p u n i s h m e n t s (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.
The public officer must have actual charge of the prisoner to hold
him liable for maltreatment of prisoner.
The Mayor of the municipality of Tiaong, Quezon, was accused of
maltreatment of a prisoner, Moises Escueta, by assaulting, beating and
striking the abdomen, face, breast and arms of the latter with an automatic
pistol and his fists, for the purpose of extorting confession from him.
It w a s held t h a t under Art. 235, it is necessary that the maltreated
prisoner be under the charge of the officer maltreating him. The prisoners,
Moises Escueta and Isidro Capino, according to the information, were
simply kept in the Camp of the Philippine Ground Force in the municipality
of Tiaong; but it w a s not alleged therein that they were under the charge of
Punzalan as Mayor of Tiaong. Hence, one of the essential elements of the
offense under Article 235 w a s lacking. (Punzalan vs. People, 99 Phil. 259)
The mayor is not liable for maltreatment of prisoner if the latter is
in the custody of the police. Art. 235 contemplates actual charge of the
prisoner, not one which is so merely by legal fiction. (People vs. Javier, C.A.,
54 O.G. 6622)
Offended party must be a convict or detention prisoner.

The offended party is either —
(1) a convict by final judgment; or
(2) a detention prisoner.
Note that Art. 235 mentions "a prisoner or detention prisoner" under
the charge of the public officer who maltreated him.
To be detention prisoner, the person arrested must be placed in

jail even for a short while.
A person was suspected of having committed a crime and taken to a
cemetery and maltreated there by the policemen. Since he is not yet booked
471
Art. 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE
in the office of the police and placed in jail even for a moment, he is not
a detention prisoner and, therefore, the policemen may be guilty only of
physical injuries. (People vs. Baring, C.A., 37 O.G. 1366)
The maltreatment (1) must relate to the correction or handling of the

prisoner, or (2) must be for the purpose of extorting a confession
or of obtaining some information from the prisoner.
Thus, if the jailer inflicted physical injuries on the prisoner because of
personal grudge against the prisoner, the jailer is liable for physical injuries
only. (People vs. Javier, supra)
Art. 235 was not applied, because there was no clear evidence that the
maltreatment was for the purpose of extorting confession or information.
(People vs. Oliva, G.R. L-6033, Sept. 30, 1954)
Offender may also be liable for physical injuries or damage

caused.
The offender is also liable for physical injuries or damage caused,
if any is caused by his maltreating the prisoner. Art. 235 states that the
penalty to be imposed upon the offender for maltreatment of prisoners is "in
addition to his liability for the physical injuries or damage caused."
In view of this provision, there is no complex crime of maltreatment
of prisoners with serious or less serious physical injuries, as defined in Art.
48.
Section Two. — Anticipation, prolongation, and abandon-

m e n t o f t h e d u t i e s a n d p o w e r s o f p u b l i c of-
fice
A r t . 2 3 6 . Anticipation of duties of a public office. — A n y

person w h o shall assume the performance of the duties and
p o w e r s o f a n y p u b l i c office o r e m p l o y m e n t w i t h o u t first
being sworn in or having given the bond required by law,
shall b e s u s p e n d e d f r o m s u c h office o r e m p l o y m e n t until h e
shall have complied with the respective formalities and shall
be fined from 200 to 500 pesos.
472
PROLONGING PERFORMANCE OF DUTIES Art. 237
Elements:
1. That the offender is entitled to hold a public office or employment,
either by election or appointment.
2. That the law requires that he should first be sworn in and/or should
first give a bond.
3. That he assumes the performance of the duties and powers of such
office.
4. That he has not taken his oath of office and/or given the bond required
by law.
Art. 237. Prolonging performance of duties and powers.

— A n y public officer w h o shall c o n t i n u e to exercise the
d u t i e s a n d p o w e r s o f h i s office, e m p l o y m e n t , o r c o m m i s s i o n ,
beyond the period provided by law, regulations or special
provisions applicable to the case, shall suffer the penalties
o f prision correccional in its m i n i m u m period, 1 0
special
1 1
temporary disqualification in its m i n i m u m period and a
fine not exceeding 500 pesos.
Elements:
1. That the offender is holding a public office.
2. That the period provided by law, regulations or special provisions for
holding such office, h a s already expired.
3. That he continues to exercise the duties and powers of such office.
Officers contemplated.
A public officer who has been suspended, separated, declared overaged,
or dismissed cannot continue to perform the duties of his office. (Albert)
10
473
Art. 238 ABANDONMENT OF OFFICE
A r t . 2 3 8 . Abandonment of office or position. — A n y p u b l i c

officer w h o , b e f o r e t h e a c c e p t a n c e o f h i s r e s i g n a t i o n , s h a l l
a b a n d o n h i s office t o t h e d e t r i m e n t o f t h e p u b l i c s e r v i c e ,
12
s h a l l s u f f e r t h e p e n a l t y o f arresto mayor.
I f s u c h office s h a l l h a v e b e e n a b a n d o n e d i n o r d e r t o
evade the discharge of the duties of preventing, prosecuting,
or punishing any of the crimes falling within Title One,
and Chapter One of Title Three of B o o k T w o of this Code,
t h e o f f e n d e r s h a l l b e p u n i s h e d b y prision correccional i n
1 3 14
its m i n i m u m a n d m e d i u m periods, a n d b y arresto mayor
if the purpose of such abandonment is to evade the duty of
preventing, prosecuting, or punishing any other crime.
Elements:
2. That he formally resigns from his position.
3. That his resignation has not yet been accepted.
4. That he abandons his office to the detriment of the public service.
There must be a written or formal resignation.

A verbal statement made by the accused to the Collector of Internal
Revenue that he w a s resigning is not the form of resignation contemplated
by the set-up of our civil service system. The resignation h a s to pass to
various officials of the offices concerned for appropriate action. Herein
accused was an employee of the Bureau of Internal Revenue and he w a s
appointed therein by the department head concerned (Secretary of Finance)
upon recommendation of the Collector of Internal Revenue. For this
reason, no other official h a s to approve accused's resignation, but the one
who appointed him — a power that is an adjunct to his appointing power.
This goes to show that a written or formal resignation is indispensable to a
resigning employee. (People vs. Santos, C.A., 55 O.G. 5566)
12
13
See Appendix "A," Table of Penalties, No. 14
14
474
USURPATION OF LEGISLATIVE POWERS Art. 239
When is the offense qualified?

If the abandonment of the office h a s for its purpose to evade the
discharge of the duties of preventing, prosecuting or punishing any of the
crimes falling within Title One, and Chapter One of Title Three of Book Two
of this Code, the penalty is higher. (Art. 238, par. 2)
"Title One, and Chapter One of Title Three of Book Two of this Code"
refer to the crimes of (1) treason, (2) conspiracy and proposal to commit
treason, (3) misprision of treason, (4) espionage, (5) inciting to war or giving
motives for reprisal, (6) violation of neutrality, (7) correspondence with
hostile country, (8) flight to e n e m y country, (9) piracy and mutiny, (10)
rebellion, (11) coup d'etat, (12) conspiracy and proposal to commit coup d'etat
or rebellion, (13) disloyalty of public officers, (14) inciting to rebellion, (15)
sedition, (16) conspiracy to commit sedition, and (17) inciting to sedition.
Abandonment of office (Art. 238), distinguished from negligence

and tolerance in prosecution of offenses (Art. 208).
1. Abandonment of office or position is committed by any public officer;
negligence and tolerance in the prosecution of offenses is committed
only by public officers who have the duty to institute prosecution for
the punishment of violations of the law.
2. In abandonment of office or position, the public officer abandons his
office to evade the discharge of his duty; in negligence and tolerance
in the prosecution of offenses, the public officer does not abandon his
office but he fails to prosecute an offense by dereliction of duty or by
malicious tolerance of the commission of offenses.
Section Three. — Usurpation of powers and unlawful appoint-

ments
A r t . 2 3 9 . Usurpation of legislative powers. — T h e p e n a l t i e s

o f prision correccional i n i t s m i n i m u m p e r i o d , 1 5
temporary
1 6
special disqualification, a n d a f i n e n o t e x c e e d i n g 1,000
p e s o s , shall b e i m p o s e d u p o n a n y p u b l i c officer w h o shall
encroach upon the powers of the legislative branch of the
Government, either by making general rules or regulations
ls
1B
475
Arts 240-241 USURPATION OF EXECUTIVE FUNCTIONS
USURPATION OF JUDICIAL FUNCTIONS
beyond the scope of his authority, or by attempting to repeal

a law or s u s p e n d i n g the e x e c u t i o n thereof.
Elements:
1. That the offender is an executive or judicial officer.
2. That he (a) makes general rules or regulations beyond the scope of his
authority, or (b) attempts to repeal a law or (c) suspends the execution
thereof.
A r t . 2 4 0 . Usurpation of executive functions. — A n y j u d g e

w h o shall assume any p o w e r pertaining to the executive
authorities, or shall obstruct the latter in the lawful exercise
o f t h e i r p o w e r s , s h a l l s u f f e r t h e p e n a l t y o f arresto mayor i n
i t s m e d i u m p e r i o d t o prision correccional i n i t s m i n i m u m
1 7
period.
Elements:
1. That the offender is a judge.
2. That he (a) a s s u m e s a power pertaining to the executive authorities,
or (b) obstructs the executive authorities in the lawful exercise of their
powers.
Legislative officers are not liable for usurpation of powers.

Thus, a councilor who a s s u m e s a power pertaining to the mayor or
obstructs him in the lawful exercise of his power is not liable under Art.
240, because only a judge can commit usurpation of executive functions.
The councilor is liable under Art. 177 of the Code, if he a s s u m e s the power
of the mayor. (See People vs. Hilvano, 99 Phil. 655)
Art. 241. Usurpation of judicial functions. — The penalty

of arresto mayor i n i t s m e d i u m p e r i o d t o prision correccional
;
S e e A p p e n d i x "A." T a b l e o f P e n a l t i e s . N o . 7 .
476
DISOBEYING REQUEST FOR DISQUALIFICATION Art. 242
1 8
i n its m i n i m u m period shall b e i m p o s e d u p o n a n y officer o f
the executive branch of the Government w h o shall assume
judicial powers or shall obstruct the execution of any order
or decision rendered by any judge within his jurisdiction.
Elements:
1. That the offender is an officer of the executive branch of the
Government.
2. That he (a) a s s u m e s judicial powers, or (b) obstructs the execution of
any order or decision rendered by any judge within his jurisdiction.
Mayor is guilty under this article if he investigates a case while

justice of the peace is in the municipality.
But a municipal president who received a complaint signed by the
chief of police, and afterwards tried the case, even though the justice of the
peace w a s discharging h i s office in the municipality is guilty under this
article. (People vs. Valdehuesa, G.R. No. 17720, Jan. 21, 1922)
Arts. 239-241 punish interference by officers of one of the three

departments of government with functions of officers of another
department.
Arts. 239-241 punish interference by the officers of one of the three
departments of the government (legislative, executive and judicial) with the
functions of t h e officers of another department. (People vs. Hilvano, 99 Phil.
655)
The purpose is to maintain the separation and independence of the
three departments of the government and to keep the three branches within
the legitimate confines of their respective jurisdictions and the officers
thereof within the scope of their lawful authority. (See Angara vs. Electoral
Commission, 63 Phil. 139)
A r t . 2 4 2 . Disobeying request for disqualification. — A n y

public officer w h o , before t h e q u e s t i o n of jurisdiction is
decided, shall continue a n y p r o c e e d i n g after h a v i n g b e e n
18
477
Art. 243 ORDERS OR REQUESTS TO JUDICIAL AUTHORITY
lawfully required to refrain from so doing, shall be punished

19
b y arresto mayor a n d a f i n e n o t e x c e e d i n g 5 0 0 p e s o s .
Elements:
2. That a proceeding is pending before such public officer.
3. That there is a question brought before the proper authority regarding
his jurisdiction, which is not yet decided.
4. That he has been lawfully required to refrain from continuing the
proceeding.
5. That he continues the proceeding.
Example:
The Mayor of Manila suspended a market administrator for alleged
irregularity. Then he caused an administrative investigation of the market
administrator. The latter filed a petition for prohibition in the Court of
First Instance which issued a preliminary writ of injunction pending the
resolution of the question of jurisdiction raised by t h e petitioner. B u t the
Mayor continued the investigation. In this case, the Mayor m a y be held
liable under this article.
The disobedient public officer is liable, even if t h e jurisdictional
question is resolved by the proper authority in h i s favor. (11 Cuello Calon,
Codigo Penal, 10th ed., p. 388)
A r t . 2 4 3 . Orders or requests by executive officers to any

judicial authority. — A n y e x e c u t i v e o f f i c e r w h o s h a l l a d d r e s s
any order or suggestion to any judicial authority with
respect to any case or business coming within the exclusive
jurisdiction of the courts of justice, shall suffer the penalty
o f arresto mayor™ a n d a fine n o t e x c e e d i n g 5 0 0 p e s o s .
19
M
478
UNLAWFUL APPOINTMENTS Art. 244
Elements:
1. That the offender is an executive officer.
2. That he addresses any order or suggestion to any judicial authority.
3. That the order or suggestion relates to any case or business coming
within the exclusive jurisdiction of the courts of justice.
Purpose of the provision is to maintain the independence of the

judiciary.
The judicial branch is intended to be free and secure from executive
dictations. Courts cannot, under their duty to their creator, the sovereign
power, permit t h e m s e l v e s to be subordinated to any person or official to
which their creator did not itself subordinate them. (Borromeo vs. Mariano,
41 Phil. 322)
Legislative or judicial officers are not liable under Art. 243.

Thus, a congressman who wrote a letter to a judge, requesting the
latter to decide the case pending before him one way or the other, or a judge
who made a suggestion to another judge, is not liable under this Article.
A r t . 2 4 4 . Unlawful appointments. — A n y p u b l i c o f f i c e r
w h o s h a l l k n o w i n g l y n o m i n a t e o r a p p o i n t t o a n y p u b l i c office
a n y person lacking the legal qualifications therefor, shall
21
s u f f e r t h e p e n a l t y o f arresto mayor a n d a f i n e n o t e x c e e d i n g
1,000 p e s o s .
Elements:
2. That he nominates or appoints a person to a public office.
3. That such person lacks the legal qualifications therefor.
4. That the offender knows that his nominee or appointee lacks the
qualifications at the time he made the nomination or appointment.
21
479
Art. 245 ABUSES AGAINST CHASTITY
The offense is committed by "nominating" or by "appointing."

"Nominate" is different from "recommend." Recommending, knowing
that the recommendee has no qualification, is not a crime.
"Person lacking the legal qualifications therefor."

There must be a law providing for the qualifications of a person to be
nominated or appointed to a public office.
Appointments of non-eligibles "continue only for such period not
exceeding three months as may be necessary to make appointment through
certification of eligibles, and in no case shall extend beyond thirty days from
receipt by the chief of the bureau or office of the Commissioner's certification
of eligibles." (Ferrer vs. Hon. De Leon, etc., 109 Phil. 202, citing Section 682
of the Revised Administrative Code)
Section Four. — Abuses against chastity
A r t . 2 4 5 . Abuses against chastity — Penalties. — T h e

p e n a l t i e s o f prision correccional i n i t s m e d i u m a n d m a x i m u m
2 2 2 3
periods and temporary special disqualification shall be
imposed:
1. U p o n a n y public officer w h o shall solicit or m a k e

immoral or indecent advances to a w o m a n interested in
matters p e n d i n g before s u c h officer for decision, or w i t h
respect to w h i c h he is required to submit a report to, or
c o n s u l t w i t h a s u p e r i o r officer;
2. Any warden or other public officer directly

charged with the care and custody of prisoners or persons
under arrest w h o shall solicit or m a k e immoral or indecent
advances to a w o m a n under his custody.
If the person solicited be the wife, daughter, sister, or

relative w i t h i n the s a m e d e g r e e by affinity of a n y p e r s o n in
t h e c u s t o d y o f s u c h w a r d e n o r officer, t h e p e n a l t i e s shall b e
!
480
ABUSES AGAINST CHASTITY Art. 245
prision correccional i n i t s m i n i m u m a n d m e d i u m p e r i o d s 2 4
and temporary special disqualification.
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.
Elements of the offense:

a. That the offender is a public officer.
b. That he solicits or m a k e s immoral or indecent advances to a woman.
c. That such woman m u s t be —
(1) 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
(2) 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
(3) the wife, daughter, sister or relative within the same degree by
affinity of the person in the custody of the offender.
Note: The mother of the person in the custody of the offender is not
included.
Meaning of "solicit."
The word "solicit" means to propose earnestly and persistently some-
thing unchaste and immoral to a woman.
24
481
Art. 245 ABUSES AGAINST CHASTITY
The advances must be immoral or indecent.

And note that the law uses the words "immoral or indecent
advances."
The crime of abuses against chastity is consummated by mere

proposal.
This crime is consummated by mere proposal, because it is sufficient
that there is soliciting or making immoral or indecent advances to the
woman.
It is not necessary that the woman solicited should have yielded to the
solicitation of the offender.
Proof of solicitation is not necessary when there is sexual inter-

course.
The appellant was in charge of the prisoners, among t h e m a woman,
in the Tondo police station. He entered the cell of the woman and had illicit
relations with her.
The appellant argues that the proof fails to show that he solicited a
woman in his custody. It w a s proven, however, that h i s illicit relations were
consummated. It would be a strange interpretation to place upon said law,
that a failure in the proof to show a "solicitation" w a s sufficient to relieve
the defendant from responsibility, w h e n the act solicited w a s consummated.
(U.S. vs. Morelos, 29 Phil. 572)
482

Title 7-Rpc 2 Reyes-Pub Off

Uploaded by

Document Informationclick to expand document information

Copyright:

Available Formats

Title 7-Rpc 2 Reyes-Pub Off

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Title 7-Rpc 2 Reyes-Pub Off

Uploaded by

Copyright:

Available Formats

Title Seven

A r t . 2 0 3 . Who are public officers. — F o r t h e p u r p o s e o f

Performing in said Government or in any of its branches

One appointed as laborer in the government is not a public officer.

But temporary performance of public functions by a laborer makes

What are the crimes classified under malfeasance and misfeasance

"Nonfeasance" is the omission of some act which ought to be performed.

Crimes under dereliction of duty.

Art. 204. Knowingly rendering unjust judgment. — Any

Unjust judgment, defined.

When rendered knowingly.

'See Appendix "A," Table of Penalties, No. 19.

"Knowingly" means consciously, intelligently, willfully, or intentionally.

Bad faith is the g r o u n d of liability.

There m u s t be e v i d e n c e that the j u d g m e n t is unjust — it c a n n o t

J u d g m e n t m u s t be contrary to law a n d not s u p p o r t e d by the

In order that a judge m a y be held liable for knowingly rendering an

There m u s t b e e v i d e n c e that t h e j u d g e k n e w that the j u d g m e n t i s

To hold a judge liable for knowingly rendering an unjust decision, the

and deliberate intent to do an injustice. Absence of any positive evidence on

Does not apply to members of a collegiate court.

A r t . 2 0 5 . Judgment rendered through negligence. — A n y

What is a "manifestly unjust judgment"?

Abuse of discretion or mere error of judgment, not punishable.

A r t . 2 0 6 . Unjust interlocutory order. — A n y j u d g e w h o

Interlocutory order, defined.

A r t . 2 0 7 . Malicious delay in the administration of justice.

shall be imposed u p o n any judge guilty of malicious delay in

Mere delay without malice is not a felony under this article.

A r t . 208.Prosecution of offenses; negligence and tolerance.

Elements of dereliction of duty in the prosecution of offenses.

Who can be the offenders in Art. 208?

"See Appendix "A," Table of Penalties, No. 11.

The term "public officer" extends to officers of the prosecution depart-

There must be a duty on the part of the public officer to prosecute

"Shall maliciously refrain from instituting prosecution."

"Shall tolerate the commission of offenses."

"Maliciously" signifies deliberate evil intent.

Crime must be proved before conviction for dereliction.

Liability of public officer who, having the duty of prosecuting the

Not applicable to revenue officers.

A r t . 2 0 9 . Betrayal of trust by an attorney or solicitor —

both, shall be imposed u p o n any attorney-at-law or solicitor

The s a m e penalty shall be i m p o s e d u p o n any attorney-at-

Acts punished as betrayal of trust by attorney.

There is no solicitor or procurador judicial under the Rules of Court.

Section Two. — Bribery

In addition to the penalties provided in the preceding

The provisions contained in the preceding paragraphs

"See Appendix "A," Table of Penalties, No. 14

Acts punishable in direct bribery:

Elements of direct bribery:

First element. — The offender is a public officer.

Applicable to "assessors, arbitrators, appraisal and claim commis-

"Or any other persons performing public duties."

Second element. — Gift is received personally or thru interme-

Gift is either (1) voluntarily offered by a private person, or (2)

Gift or present need not be actually received by the public officer,