Criminal Law Book 2 – Title Seven

TITLE SEVEN

CRIMES COMMITTED BY PUBLIC OFFICERS

Article 203

  • WHO ARE PUBLIC OFFICERS:
  1. Takes part in the performance of public functions in the Government, or
  2. Performs public duties as an employee, agent or subordinate official in the gov’t or any of its branches
  • Notes:
  1. Public officer must derive his authority from:
  2. direct provision of law
  3. popular election
  4. appointment by competent authority
  5. Public officers: embraces every public servant from the lowest to the highest rank
  6. A government laborer is not a public officer. However, temporary performance by a laborer of public functions makes him a public officer
  7. Misfeasance: means improper performance of an act which might be properly be performed
  8. Malfeasance: means performance of an act which ought not to be done
  9. Nonfeasance: means omission of an act which ought to be done

 

MALFEASANCE AND MISFEASANCE IN OFFICE

Malfeasance Doing of an act which a public officer should not have done
Misfeasance Improper doing of an act which a person might lawfully do
Nonfeasance Failure of an agent to perform his undertaking for the principal
  • ELEMENTS OF KNOWINGLY RENDERING AN UNJUST JUDGMENT:
  1. Offender is a judge
  2. Renders a judgment in the case submitted to him for judgment
  3. Judgment is unjust
  4. Knowledge that the decision is unjust
  • Notes:
  1. Judgment: is a final consideration and determination by a court of competent jurisdiction of the issues submitted to it in an action or proceeding
  2. Unjust judgment: one which is contrary to law, or not supported by the evidence, or both
  3. An unjust judgment may result from:
  4. error (with bad faith)
  5. ill-will or revenge
  6. bribery
    1. There must be evidence that the decision rendered is unjust. It is not presumed
    2. Abuse of discretion or mere error of judgment cannot likewise serve as basis for rendering an unjust judgment in the absence of proof or even an allegation of bad faith (motive or improper consideration).

 

Article 205

  • ELEMENTS OF JUDGMENT RENDERED THROUGH NEGLIGENCE:
  1. Offender  is a judge
  2. Renders a judgment in a case submitted to him for decision
  3. Judgment is manifestly unjust
  4. Due to inexcusable negligence or ignorance
  • Manifestly unjust judgment: one that is so contrary to law that even a person having meager knowledge of the law cannot doubt the injustice

 

Article 206

  • ELEMENTS OF UNJUST INTERLOCUTORY ORDER:
  1. That the offender is a judge.
  2. That he performs any of the following acts:
    1. knowingly renders unjust interlocutory order or decree, or
    2. renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance.
  • Interlocutory order: one issued by the court deciding a collateral or incidental matter. It is not a final determination of the issues of the action or proceeding

 

Article 207

  • ELEMENTS OF MALICIOUS DELAY IN THE  ADMINISTRATION OR JUSTICE:
  1. That the offender is a judge.
  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 punishable

 

Article 208

  • ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES:
  1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses.
  2. That there is dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause (a) the prosecution of the criminal (People vs. Rosales, G.R. no. 42648) or (b) knowing that a crime is about to be committed he tolerates its commission (if gift/promise is a consideration for his conduct: direct bribery)
  3. That the offender acts with malice and deliberate intent to favor the violator of the law.
  • PREVARICACION: negligence and tolerance in the prosecution of an offense
  • There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. Note however, that a fiscal is under no compulsion to file an information based upon a complaint if he is not convinced that the evidence before him does not warrant filing an action in court
  • The crime must be proved first before an officer can be convicted of dereliction of duty
  • A public officer who harbors, conceals, or assists in the escape of an offender, when it is his duty to prosecute him is liable as principal in the crime of dereliction of duty in the prosecution of offenses. He is not an accessory
  • Article not applicable to revenue officers

 

Article 209

  • ELEMENTS OF BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR (NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE OFFICERS OF THE COURT):
  1. Causing damage to client (prejudice is essential) either
    1. by any malicious breach of professional duty, or
    2. by inexcusable negligence or ignorance.
    3. Revealing any of the secrets of his client learned by him in his professional capacity (damage not necessary)
    4. Undertaking the defense of the opposing party of the 1st client and/or having received confidential information from the latter and without the latter’s consent (damage not necessary)

 

Article 210

  • ELEMENTS OF DIRECT BRIBERY:
  1. That the offender be a public officer within the scope of Art 203
  2. That the offender accepts an offer or promise or receives a gift or present by himself or through another
  3. That such offer or promise be accepted or gift/present received by the public officer (mere agreement consummates the crime)
    1. with a view to committing some crime (delivery of consideration is not necessary) or
    2. in consideration of an execution if an act which does not constitute a crime, but the act must be unjust (delivery of consideration is necessary), or
    3. to refrain from doing something which is his official duty to do
    4. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties
  • For purposes of this article, temporary performance of public functions is sufficient to constitute a person a public officer.  A private person may commit this crime only in the case in which custody of prisoners is entrusted to him
  • Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person performing public duties
  • Cannot be frustrated, only attempted or consummated.
  • Bribery exists when the gift is:
  • Actual receipt of the gift is not necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer
  • The gift must have a value or capable of pecuniary estimation. It could be in the form of money, property or services
  • If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime
  • The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do an act required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion
  1. voluntarily offered by a private person
  2. solicited by the public officer and voluntarily delivered by the private person
  3. solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by giver is not corruption of public officials due to involuntariness).

Bribery (210)

Robbery (294)

When the victim has committed a crime and gives money/gift to avoid arrest or prosecution. When the victim did not commit a crime and he is intimidated with arrest and/or prosecution to deprive him of his personal property.
Victim parts with his money or property voluntarily. Victim is deprived of his money or property by force or intimidation.

ANTI-GRAFT AND CORRUPT PRACTICES ACT

RA 3019

  • Persons Liable:
  1.  Any public officer who shall perform any of the following acts:
  2. Any person having family or close personal relation with any public official who shall capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, or material, or pecuniary advantage from any person having some business, transaction, application, request, or contact with the government in which such public official has to intervene (Sec. 4)
  3. Any person who shall knowingly induce or cause any public official to commit any of the offenses under (A). (Sec. 4)
  4.  Spouse or any relative, by consanguinity or affinity, within the 3rd civil degree, of the president of the Philippines, the vice-president, the president of the Senate, or speaker of the house of Representatives, who shall intervene, directly or indirectly, in any business transaction, contract or application with the gov’t (Sec. 5).
  1. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.
  2. Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit for himself or for any other person in connection with any contract or transaction between the government and any other party wherein the public officer in his official capacity has to intervene under the law.
  3. Directly, or indirectly requesting or receiving any gift, present, or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner of capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the held given or to be given.
  4. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.
  5. 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 his official, administrative or judicial function through manifest partiality, evident bad faith or gross inexcusable negligence.  This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
  6. Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest of giving undue advantage in favor of or discriminating against any other interested party.
  7. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
  8. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or take part in his official capacity, or in which he is prohibited by the constitution or by any law from having any interest.
  9. Directly or indirectly becoming interested, for personal gain, or having a 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.
  10. Knowingly approving or granting any license, permit, privilege, or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.
  11. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

This prohibition shall not apply to:

  1. Any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the gov’t along the same line of business;
  2. Any transaction, contract or application already existing or pending at the time of such assumption of public office;
  3. Any application filed by him, the approval of which is not discretionary on the part of the official(s) concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law;
  4. Any act lawfully performed an official capacity or in the exercise of a profession.
  5. Any member of congress, during the term for which he has been elected, who shall acquire or receive any personal pecuniary interest in any specific business enterprise which shall be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during his term.
  6. Any public officer who shall fail to file a true, detailed and sworn statement of assets and liabilities within 30 days after assuming office and thereafter on or before the 15th day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office (Sec. 7).

II. Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8)

  • If a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income.
  • Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown.
  • Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income.

III. Competent court: All prosecutions under this Act shall be within the original jurisdiction of the

Sandiganbayan (Sec. 10).

IV. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15 years (Sec. 11).

V. Exceptions: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec. 14).

Article 211

  • ELEMENTS OF INDIRECT BRIBERY:
  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.
  • The gift is given  in anticipation of future favor from the public officer
  • There must be clear intention on the part of the public officer to take the gift offered and consider the property as his own for that moment. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer
  • There is no attempted or frustrated indirect bribery
  • The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office
  • Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46.
  • The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service

 

Article 211-A

  • ELEMENTS OF QUALIFIED BRIBERY
  1. Public officer entrusted with law enforcement
  2. Refrains from arresting/prosecuting offender for crime punishable by reclusion perpetua and/or death
  3. (if lower penalty than stated above, the crime is direct bribery)
  4. In consideration of any offer, promise or gift

 

Article 212

  • ELEMENTS OF CORRUPTION OF PUBLIC OFFICIALS:
  1. That the offender makes offers or promises or gives gifts or present 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 is the giver of the gift or the offeror of the promise. The act may or may not be accomplished
  • Under PD 749, givers of bribes and other gifts as well as accomplices in bribery and other graft cases are immune from prosecution under the following circumstances:
  1. information refers to consummated violations
  2. necessity of the information or testimony
  3. the information and testimony are not yet in the possession of the State
  4. information and testimony can be corroborated on its material points
  5. informant has been previously convicted of a crime involving moral turpitude
  • See the Anti-graft and Corrupt Practices Act

II. FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

 

Article 213

  • ELEMENTS OF FRAUDS AGAINST PUBLIC TREASURY: (par. 1)
  1. That the offender be a public officer.
  2. That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity.
  3. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the adjustment or settlement of account relating to a public property or funds.
  4. That the accused had intent to defraud the government.
  •  Notes:
  1. The public officer must act in his official capacity
  2. The felony is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any scheme to defraud the Government
  • ELEMENTS OF ILLEGAL EXACTIONS:
  1. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts.
  2. 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.
  • Notes:
  1. Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to gov’t is not required)
  2. If sums are received without demanding the same, a felony under this article is not committed.  However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery
  3. When there is deceit in demanding larger fees, the crime committed is estafa
  4. May be complexed with malversation
  5. Officers and employees of the BIR or Customs are not covered by the article
  6. The NIRC of Administrative Code is the applicable law

 

Article 214

  • ELEMENTS OF OTHER FRAUDS:
  1. That the offender is a public officer.
  2. That he takes advantage of his official position.
  3. That he commits any of the frauds or deceits enumerated in art. 315 and 316. (estafa; swindling)
  • Note: RTC has jurisdiction over the offense because the principal penalty is disqualification

 

Article 215

  • ELEMENTS OF PROHIBITED TRANSACTIONS:
  1. That the offender is an appointive public officer.
  2. That he becomes interested, directly or indirectly, in any transaction of exchange or speculation.
  3. That the transaction takes place within the territory subject to his jurisdiction.
  4. That he becomes interested in the transaction during his incumbency.
  • Notes:
  1. Examples of transactions of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price
  2. Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation

 

Article 216

POSSESSION OF PROHIBITED INTERESTS BY A PUBLIC OFFICER :

  • Who are liable:
  1. Public officer – in any contract or business in which it is his official duty to intervene.
  2. Experts, arbitrators and private accountants – in any contract or transaction connected with the estate or property in the approval, distribution or adjudication of which they had acted.
  3. Guardians and executors – with respect to property belonging to their wards or the estate.
  • Notes:
  1. Actual fraud is not necessary.
  2. Act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the Government or party which he represents


AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER

RA 7080

  1. Definition of Ill-gotten wealth:

Any asset, property, business enterprise or material possession of any person acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the following means or similar schemes:

  1. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury.
  2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
  3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;
  4. By obtaining, receiving or accepting, directly or indirectly, any shares of stock, equity or any other form of interest or participation, including the promise of future employment in any business enterprise or undertaking.
  5. By establishing agricultural, industrial or commercial monopolies or other combinations, and/or implementation of decrees and orders intended to benefit particular persons or special interests;
  6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage or prejudice of the Filipino people and the Republic of the Philippines.

 

  1. Persons Liable:
    1. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates and subordinates or other persons, amasses, accumulates, or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described under (I) in the aggregate amount or total value of at least 50 million pesos, shall be guilty of the crime of plunder (as amended by RA 7659).
    2. Any person who participated with the said public officer in the commission of plunder.
  1. Jurisdiction: All prosecutions under this At shall be within the original jurisdiction of the Sandiganbayan.
  1. Rule of Evidence:

For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme and conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

  1. Prescription of Crime:

The crime of plunder shall prescribe in 20 years.  However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches or estoppel.

 

III. MALVERSATION OF PUBLIC FUNDS OR PROPERTY

 

Article 217

  • ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY :
  1. That the offender be a public officer (or private person if entrusted with public funds or connived with public officers)
  2. That he had the custody or control of funds or property (if not accountable for the funds, theft or qualified theft)
  3. That those funds or property were public funds or property (even if private funds if attached, seized, deposited or commingled with public funds)
  4. That he:
    1. Appropriated the funds or property
    2. Took or misappropriated them
    3. Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. (it is not necessary that the offender profited thereby. His being remiss in the duty of safekeeping public funds violates the trust reposed)
  • Malversation is otherwise called embezzlement
  • It can be committed either with malice or through negligence or imprudence
  • In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation
  • The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa
  • When a public officer has official custody or the duty to collect or receive funds due the government, or the obligation to account for them, his misappropriation of the same constitutes malversation
  • A public officer who has qualified charge of gov’t property without authority to part with its physical possession upon order of an immediate superior, he cannot be held liable under this article
  • Private individuals can also be held liable for malversation under 2 circumstances:
  1. when they are in conspiracy with public officers; and
  2. when they have charge of national, provincial or municipal funds, revenues or property in any capacity
  • In malversation through negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice
  • The measure of negligence to be observed is the standard of care commensurate with the occasion
  • When malversation is not committed through negligence, lack of criminal intent or good faith is a defense
  • The failure of a public officer to have any duly forthcoming public funds or property upon demand, by any authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. However, if at the very moment when the shortage is discovered, the accountable officer is notified, and he immediately pays the amount from his pocket, the presumption does not arise
  • Returning the embezzled funds is not exempting, it is only mitigating
  • There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place
  • A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation
  • Demand as well as damage to the government are not necessary elements

Malversation (217)

Estafa with Abuse of Confidence (315)

Funds or property usually public Funds/property are always private
Offender is usually a public officer who is accountable for the public funds/property Offender is a private individual or even a public officer who is not accountable for public funds/property
Crime is committed by approaching, taking, or misappropriating/consenting, or through abandonment or negligence, permitting any other person to take the public funds/property Crime is committed by misappropriating, converting, or denying having received money, goods or other personal property

 

Article 218

  • ELEMENTS OF FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS :
  1. That the offender is a public officer, whether in the service or separated therefrom.
  2. That he must be an accountable officer for public funds 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 should be rendered.
  • Note: Demand and misappropriation are not necessary

 

Article 219

  • ELEMENTS OF FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY :
  1. That the offender is a public officer.
  2. That he must be an accountable officer for public funds or property.
  3. That he must have unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled.
  • Note: The act of leaving the Philippines must be unauthorized or not permitted by law

 

Article 220

  • ELEMENTS OF ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical malversation):
  1. That the offender is a public officer.
  2. That there is public fund or property under his administration.
  3. That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation even if applied to other public purpose).
  4. That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance.
  • To distinguish this article with Art 217, just remember that in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use
  • Absence of damage is only a mitigating circumstance

 

Article 221

  • ELEMENTS OF FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY
  1. Offender has gov’t funds or property in his possession
  2. He is under obligation to either:
    1. make payment from such funds
    2. to deliver property in his custody or administration when ordered by competent authority
    3. He maliciously fails or refuses to do so
  • Note: Penalty is based on value of funds/property to be delivered

 

Article 222

  • PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221
  1. Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property
  2. Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual
  • Sheriffs and receivers fall under the term “administrator”
  • A judicial administrator in charge of settling the estate of the deceased is not covered by the article

 

IV. INFIDELITY OF PUBLIC OFFICERS

 

Article 223

  • ELEMENTS OF CONNIVING WITH OR CONSENTING TO EVASION
  1. That the offender is a public officer (on duty).
  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 escaped from his custody
  4. That he was in connivance with the prisoner in the latter’s escape
  • Detention prisoner: refers to a person in legal custody, arrested for and charged with some crime or public offense
  • The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner. Neither is mere leniency or laxity in the performance of duty constitutive of infidelity
  • There is real and actual evasion of service of sentence when the custodian permits the prisoner to obtain a relaxation of his imprisonment

 

Article 224

  • ELEMENTS OF EVASION THROUGH NEGLIGENCE:
  1. That the offender is a public officer.
  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.
  4. Penalty based on nature of imprisonment
  • The article punishes a definite laxity which amounts to deliberate non-performance of a duty
  • The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation
  • The liability of an escaping prisoner:
  1. if he is a prisoner by final judgment, he is liable for evasion of service (art 157)
  2. if he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).

 

Article 225

  • ELEMENTS OF ESCAPES OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER :
  1. That the offender is a private person (note: must be on duty)
  2. That the conveyance or custody of a prisoner or person under arrest is confined 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 takes place through his negligence
  • Note: This article is not applicable if a private person made the arrest and he consented to the escape of the person he arrested

 

Article 226

  • ELEMENTS OF REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS Infidelity in custody of documents:
  1. That the offender be a public officer.
  2. That he abstracts, destroys or conceals a document or papers.
  3. That the said document or paper 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.
  • The document must be complete and one by which a right could be established or an obligation could be extinguished
  • Books, periodicals, pamphlets etc are not documents
  • “Papers” would include checks, promissory notes and paper money
  • A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity in the custody of papers
  • Removal of a document or paper must be for an illicit purpose. There is illicit purpose when the intention of the offender is to:
  1. tamper with it
  2. to profit by it
  3. to commit any act constituting a breech of trust in the official thereof
  • Removal is consummated upon removal or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished
  • Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose
  • Delivering the document to the wrong party is infidelity in the custody thereof
  • The damage may either be great or small
  • The offender must be in custody of such documents

 

Article 227

  • ELEMENTS  OF  OFFICER BREAKING SEAL :
  1. That the offender is a public officer.
  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 them to be broken.
  • It is the breaking of the seals and not the opening of a closed envelope which is punished
  • Damage or intent to cause damage is not necessary; damage is presumed

 

Article 228

  • ELEMENTS OF OPENING OF CLOSED DOCUMENTS:
  1. That the offender is a public officer.
  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.
  • Note: Damage also not necessary

 

Article 229

REVELATION OF SECRET BY AN OFFICER:

  • ELEMENTS OF PAR.1: BY REASON OF HIS OFFICIAL CAPACITY
  1. That the offender is a public officer.
  2. That he knows of a secret by reason of his official capacity.
  3. That he reveals such secret without authority or justifiable reasons.
  4. That damage, great or small, be caused to the public interest.
  5. (damage is essential)
  • Notes:
  1. Secret must affect public interest
  2. Secrets of a private individual is not included
  3. Espionage for the benefit of another State is not contemplated by the article. If regarding military secrets or secrets affecting state security, the crime may be espionage.
  • ELEMENTS OF PAR 2 – DELIVERING WRONGFULLY PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH SHOULD NOT BE PUBLISHED:
  1. That the offender is a public 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.
  • Notes:
  1. “Charge”: means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article
  2. If the papers contain secrets which 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. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents
  3. Damage is essential to the act committed

 

Article 230

  • ELEMENTS OF PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL:
  1. That the offender is a public officer
  2. That he knows of the secret of a private individual by reason of his office.
  3. That he reveals such secrets without authority or justification reason.
  • Revelation to one person is sufficient
  • If the offender is an attorney, he is properly liable under Art 209 (betrayal of trust by an attorney)
  • Damage to private individual is not necessary

 

V. OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

 

Article 231

  • ELEMENTS OF OPEN DISOBEDIENCE:
  1. That the offender is a judicial or executive officer.
  2. That there is a judgment, decision or order of superior authority.
  3. That such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities.
  4. that the offender without any legal justification openly refuses to execute the said judgment, decision or under which he is duty bound to obey.
  • Note: Judgment should have been rendered in a hearing and issued within proper jurisdiction with all legal solemnities required

 

Article 232

  • ELEMENTS OF DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER:
  1. That the offender is a public officer.
  2.  That an order is issued by his superior for execution.
  3. That he has for any reason suspended the execution of such order.
  4. That his superior disapproves the suspension of the execution of the order.
  5. That the offender disobeys his superior despite the disapproval of the suspension.
  • Note: A public officer is not liable if the order of the superior is illegal

 

Article 233

  • ELEMENTS OF REFUSAL OF ASSISTANCE:
  1. That the offender is a public officer.
  2. That a competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service.
  3. That the offender fails to do so maliciously.
  • Involves a request from one public officer to another
  • Damage to the public interest or third party is essential
  • Demand is necessary

 

Article 234

  • ELEMENTS OF REFUSAL TO DISCHARGE ELECTIVE OFFICE:
  1. That the offender is elected by popular election to a public office.
  2. That he refuses to be sworn in or 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.
  • Note: Even if the person did not run for the office on his own will as the Constitution provides that every citizen may be required to render service

 

Article 235

  • ELEMENTS OF MALTREATMENT OF PRISONERS:
  1. That the offender is a public officer or employee.
  2. That he has under charge a prisoner or detention prisoner (otherwise the crime is physical injuries)
  3. That he maltreats such prisoner in either of the following manners:
    1. by overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either –
  • by the imposition of punishments not authorized by the regulations, or
  • by inflicting such punishments (those authorized) in a cruel and humiliating manner, or
  1. 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 in order to be held liable
  • To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while
  • Offender may also be held liable for physical injuries or damage caused

 

Article 236

  • ELEMENTS OF ANTICIPATION OF DUTIES OF A PUBLIC OFFICE:
  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.

 

Article 237

  • ELEMENTS OF PROLONGING PERFORMANCE OF DUTIES AND POWERS:
  1. That the offender is holding a public office.
  2. That the period provided by law, regulations or special provisions for holding such office has already expired.
  3. That he continues to exercise the duties and powers of such office.
  • Note: The article contemplates officers who have been suspended, separated or declared over-aged or dismissed

 

Article 238

  • ELEMENTS OF ABANDONMENT OF OFFICE OR POSITION :
  1. That the offender is a public officer.
  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 formal or written resignation
  • The offense is qualified if the purpose behind the abandonment is to evade the discharge of duties consisting of preventing, prosecuting or punishing any of the crimes against national security. The penalty is higher. This involves the following crimes:
  1. treason
  2. conspiracy and proposal to commit conspiracy
  3. misprision of treason
  4. espionage
  5. inciting to war or giving motives to reprisals
  6. violation of neutrality
  7. correspondence with hostile country
  8. flight to enemy country
  9. piracy and mutiny on the high seas
  10. rebellion
  11. conspiracy and proposal to commit rebellion
  12. disloyalty to public officers
  13. inciting to rebellion
  14. sedition
  15. conspiracy to commit sedition
  16. inciting to sedition

Abandonment of Office or Position (238)

Dereliction of Duty (208)

There is actual abandonment through resignation to evade the discharge of duties. Public officer does not abandon his office but merely fails to prosecute a violation of the law.

 

Article 239

  • ELEMENTS OF USURPATION OF LEGISLATIVE POWERS:
  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.

 

Article 240

  • ELEMENTS OF USURPATION OF EXECUTIVE FUNCTIONS:
  1. That the offender is a  judge.
  2. That he (a.) assumes a power pertaining to the executive authorities, or (b.) obstructs executive authorities in the lawful exercise of their powers.
  • Note: Legislative officers are not liable for usurpation of executive functions

 

Article 241

  • ELEMENTS OF USURPATION OF JUDICIAL FUNCTIONS:
  1. That the offender is an officer of the executive branch of the government.
  2. That he (a.) assumes judicial powers, or (b.) obstruct the execution of any order decision rendered by any judge within his jurisdiction.
  • Note: A mayor is guilty under this article when he investigates a case while a justice of the peace is in the municipality

 

Article 242

  • ELEMENTS OF DISOBEYING REQUEST FOR DISQUALIFICATION:
  1. That the offender is a public officer.
  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.

 

Article 243

  • ELEMENTS OF ADDRESSING ORDERS OR REQUESTS BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY:
  1. That the offender is an executive officer.
  2. That the 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.
  • Note: Legislative or judicial officers are not liable under this article

 

Article 244

  • ELEMENTS OF UNLAWFUL APPOINTMENTS:
  1. That the offender is a public officer.
  2. That he nominates or appoints a person to a public office.
  3. That  such person lacks the legal qualification therefor.
  4. That the offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.
  • Recommending, knowing that the person recommended is not qualified is not a crime
  • There must be a law providing for the qualifications of a person to be nominated or appointed to a public office

 

Article 245

  • ELEMENTS OF ABUSES AGAINST CHASTITY:
  1. That the offender is a public officer.
  2. That he solicits or makes immoral or indecent advances to a woman.
  3. That such woman must be –
    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 care and custody of prisoners or person 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
  • The mother of the person in the custody of the public officer is not included
  • Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman
  • The advances must be immoral or indecent
  • The crime is consummated by mere proposal
  • Proof of solicitation is not necessary when there is sexual intercourse

 

Reference:

Criminal Law Book 2 Reviewer

Ateneo Central Bar Operations 2001

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About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on January 25, 2012, in Criminal Law and tagged . Bookmark the permalink. Leave a comment.

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