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Art 217- Malversation of Public Funds or

Property

crime is Estafa not Malversation (US v


SOLIS)

MALVERSATION- refers to EMBEZZELMENT


(taking of property/funds for personal use)
as provided in the penultimate paragraph
of art 217 the word embezzled was used.

When a public officer is merely in charge of


the government funds or property but has
no authority to part with except upon
orders of a superior then the crime is theft.
Their only responsibility is towards their
immediate superiors, who are the ones
directly responsible for the government.
(U.S. v WEBSTER and U.S. v WICKERSHAM)

Acts Punished:
1.) Appropriating public property or
funds.
2.) Taking or Misappropriating the same
3.) Consenting, or through Negligence or
Abandonment, permitted another to
take public property or funds.
4.) Otherwise
guilty
of
taking
or
misappropriating the same.
Elements COMMON to the Act Punished:
1.) Offender is a public officer.
2.) Offender is in custody of the public
property or funds by reason of his
public duty.
3.) He is accountable for the fund/
property
4.) That
he
Appropriates,
Takes,
Misappropriate, Consents, or through
Negligence
or
abandonment,
permitted another to take the same.
*Nature of the duty of the public officer, not
the name of the office, is controlling.
When the public officer has no authority to
receive the money for the government and
upon receipt he misappropriated it then the

A private person, who conspires in the


commission of Malversation, is also guilty.
(U.S. v PONTE)
Public Funds:
1.) Red Cross, Anti-Tubercolosis Society,
and Boy Scout funds(Considered as
Trust Funds).
2.) Postal Money Orders
3.) Money
Receive
by
Sheriff
as
Redemption Price
4.) Money Received by Sheriff as
Indemnification in connection with a
levy made by him
5.) NARIC funds when entrusted to a
public officer for his official custody.
6.) Proceeds of the sale of sweepstake
tickets.
7.) Seized Property from persons not
authorized to possess the same
8.) Private properties deposited to the
public authorities
Different Acts of Malversation:

1.) Appropriating public property or


funds.
Includes every attempt to
dispose the same without a
right.
2.)Taking or Misappropriating the same
Taking
public
property
is
sufficient to consummate the
crime. Art 217 is worded in
such a way that Taking and
Misappropriating is separated
by the disjunctive or.
3.)Consenting, or through Negligence or
Abandonment, permitted another to
take public property or funds.
A violation of the regulation of
his office is considered as an
evidence
of
negligence.
However, in Malversation, the
negligence of the public officer
must be clearly and positively
shown to be inexcusable,
approximating to malice or
fraud.
Extreme necessity is a defense.
The test to determine whether
a person is negligent is if in
accordance
to
the
circumstance,
a
person
performed in a manner that a
reasonable and prudent man
would have performed in the

same situation. The standard of


care is commensurate to the
situation.
In situation where Malversation
is not committed through
negligence, lack of criminal
intent and good faith is a
defense.
*When a public officer, accountable for
public funds or property, failed to present
the same upon deman of a person with
authority to deman, then it shall be
presumed (rebuttable) to and constitutes
as a prima facie evidence that such funds
or property has been put for personal use.
Hence, a public officer may be convicted
for Malversation even without direct
evidence if he is unable to explain
satisfactorily the loss of such funds or
property.
*If upon demand, the public officer
immediately presented the money then the
presumption is rebutted and no prima facie
evidence is established. The demand itself
however is not a necessary element to
constitute Malversation if other evidence is
presented.
*The return of the property or funds
malversed
is
only
a
mitigating
circumstance similar to that of voluntary
surrender, with further qualifications that it
must be prompt. The reason behind is that

damage is not element of Malversation as


the penalty is based on the amount
involved and not the damage.
*There is a complex crime of Malversation
through falsification of public document by
reckless negligence.

2.) That he is accountable for public


funds or property
3.) That he unlawfully left, or about to
leave the country, without securing
from COA a certificate indicating that
his accounts have been finally
settled.

Art 218- Failure of Accountable Officer to


Render Accounts

Art 220- Illegal Use of


(Technical Malversation)

Elements:
1.) The offender is a public officer, in
service or separated from service
therefrom by resignation or any other
cause.
2.) That the public officer is accountable
for public funds or property.
3.) That there is a law or regulation
requiring the rendering of such
accounts to the COA or the municipal
treasurer.
4.) The offender fails to render account
two months from the time the
account should have been rendered.

Elements:
1.) The offender is a public officer.
2.) He has, under his administration,
public funds or property.
3.) That such funds or property has been
appropriated by law or an ordinance
for a specific use.
4.) That the offender appropriated the
same for public use other than the
appropriation provided by law or
ordinance.

*Demand for account is not necessary.

*If theres no law or ordinance then the


crime is Malversation because the offender
has
appropriated
the
funds/property
without a right.

*Misappropriation is not necessary


Art 219- Failure of the Responsible Officer
to Render Accounts Before Leaving the
Country
Elements:
1.) Offender is a public officer

Public

Funds

*Demand is not necessary, the law or


ordinance os sufficient.

Art 221: Failure to Make Delivery of Public


Property or Funds
Acts Punished:

1.) The offender, being a public officer is


entrusted with public funds and has
the duty to make payments using
such funds but fails to do so.
2.) The offender, being a public officer, is
in the possession of a public
property, which is ordered by a
competent authority to be delivered
but he refuses to do so.
*Malice is a necessary Element.
Art 222- Officers Included in the Preceding
Provisions
1.) Private individual, in any capacity or
whatsoever,
have
charge
of
National,
Municipal,
Provincial,
revenue, funds, or property.
2.) Administrator or depository of funds
or property Attached, Seized, or
Deposited by public authority even
if such property is private.
*Sheriff and Receivers are included in
Administrators and Depository.
*Judicial Administrator is not included
because they are not in charged of the
property, they would be liable under estafa.
*As long as the private property is in the
custody of accountable public officer then
it falls under this chapter.
INFIDELITY OF PUBLIC OFFICERS

Art 223- Conniving with or Consenting to


Evasion
Elements:
1.) That the offender is a public officer
2.) That such public officer is in custody
or in charge of a detained prisoner
convicted by final judgment.
3.) That such prisoner escapes
4.) That he consented or connived with
the prisoner for the latters escape
A DETENTION PRISONER is someone who is
in legal custody or arrested for or charged
with a crime or public offense.
*Lenient or Laxity is not infidelity.
*Relaxation of imprisonment such that the
prisoner escapes the punishment of being
deprived of his liberty is considered as
infidelity.
Art 224- Evasion through Negligence
Elements:
1.) Offender is a public officer
2.) He is in custody or in charged of a
detained prisoner or a convicted by
final judgment
3.) That such prisoner escapes through
the offenders negligence.
Not every negligence or distraction of a
guard is penalized, it must be positive

carelessness.
Neglect
that
are
not
deliberate non performance of their duty
can be dealt with administratively. (PEOPLE
v REYES)
*Example of negligence is falling asleep
during guard hours.
*The fact that the public officer recaptured
the escapee does not afford complete
exculpation.
Art 225- Escape of Prisoner under the
custody of a private person not a public
officer
Elements:
1.) Offender is a private person
2.) That the custody of a prisoner
(Detained
or
convict
by
final
judgment) is conveyed to the private
person.
3.) Such prisoner escapes.
4.) The offender consented, connived or
through negligence let the prisoner
escape.
Art 225- Removal, Concealment, or
Destruction of Documents or Papers.
Elements:
1.) that the offender is a public officer
2.) that he is in entrusted with papers
or documents by reason of his
office.
3.) that he removes, conceals, or
destroys such documents or

papers
without
having
the
authority to do so.
4.) That there is damage, serious or
not, to a 3rd party or the public
interest.
*The document must be complete
and is capable of establishing or
extinguishing an obligation.
A DOCUMENT is a written instrument
in which something is proven or
made of record. Hence, books,
pamphlets,
periodicals
are
not
documents.
*Papers includes checks, promissory
notes and paper money.
*Money bills received as exhibit in
courts are papers.
Acts punished:
1.) Removing
2.) Concealing
3.) Destroying
*The removal
purpose

3.) To commit an act constituting a


breach of trust in the official care
theoreof
*Consummated upon removal.

*It must have been entrusted to the


accused by reason of his office.

*Destroying or concealing need no illicit


intention.

*There should be no seal or else his liability


is in art 227.

*Damage is an indispensible element. Mere


alarm or alienation of confidence of public
trust is damage.

Art 229- Revelation of secrets by an officer

Art 227-Officer Breaking Seal


Elements:
1.) Offender is a public officer
2.) He is entrusted with a sealed paper
or document
3.) He break the seal or permitted
another to do the same
4.) He does not have the authority to do
so
*Damage or intent to cause damage is not
necessary

must

be

for

illicit

An intention or purpose is illicit when the


offender:
1.) Tampers with it
2.) To profit with it

4.) He does not have the authority to do


so

Acts Punished:
1.) By revealing secrets known to the
offender by reason of his official duty.
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:
1.) Offender is a public officer
2.) He knows of a secret by reason of his
official capacity.
3.) He discloses the same without
authority or without justifiable reason
4.) Damage, great or small, was done to
the public interest.

Art 228- Opening of Closed Documents


*Secret must affect the public interest
Elements:
1.) Offender is a public officer
2.) He is entrusted with a paper or
document that is not sealed
3.) He opens the paper or document or
permitted another to do the same

*Secrets are public


Elements of no 2:
1.) Offender is a public officer
2.) He has charge of papers

3.) Those
papers
should
not
be
published
4.) He delivers those papers or copies to
a 3rd person
5.) The delivery is wrongful
6.) Damage is cause to the public
interest
*If the papers do not contain secrets then
removal fir an illicit purpose is punished
under infidelity in the custody of
documents.

*Damage is a necessary element.

*Public revelation is not required

Art 230- Public Officers Revealing Secrets


of Public Individuals

*Damage is not necessary.

Elements:
1.) Offender is a public officer
2.) He knows secrets of an individual by
reason of his official duty
3.) He reveals such secret without
authority or justifiable reason