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.
Art 230- Public Officers Revealing Secrets
of Public Individuals
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
*Public revelation is not required
*Damage is not necessary.

OTHER OFFENSES OR IRREGULARITIES BY

PUBLIC OFFICERS

*If the order of the superior is illegal then

he has no duty to obey such order.

Art 231-Open Disobedience

Art 233- Refusal of assistance
Elements:
1.) Offender is a judicial or executive
officer
2.) There is a Judgment, Decision, Order
issued by a superior authority.
3.) That such Judgment, Decision, or
Order was issued within the scope of
the superiors jurisdiction and it was
with legal formalities.
4.) That the offender, without just cause,
OPENLY REFUSED to execute such
RDO in which he is DUTY BOUND to
obey.

Elements:
1.) Offender is a public officer
2.) A competent authority DEMANDS
from the offender assistance in the
administration of justice or some kind
of public service
3.) That the offender, without legal
cause, refuses to render such
assistance maliciously.
*There must be a DEMAND
COMPETENT AUTHORITY

from

Art 232- Disobedience to order of superior

officer, where said order was suspended by
inferior officer

*It is indispensible that there is DAMAGE

because the penalty is based on the degree
of damage.

Elements:
1.) That the offender is a public officer
2.) An order was issued by his superior
for execution
3.) That the offender suspended the
execution of such order
4.) That the superior disapproves the
suspension
5.) That the offender disobeys his
superior despite the disapproval of
his suspension

ART 234- Refusal to Discharge Elective

Office
Elements:
1.) Offender is elected by popular voting
to a public office
2.) That he is required by law to be
sworn or to discharge the duties of
said office
3.) That his refusal is without legal
motive

*The reason for such provision is that when

a person is elected to a public office, the
discharge of the duties of said office is not
a matter of right.

penalty of the physical injury and the

damage caused.
Art 236: Anticipation of duties of a public
office

2.) That turns in formally a resignation

3.) The resignation has yet to be
accepted
4.) He abandons such office to the
detriment of public service

Art 235- Maltreatment of Prisoners

Elements:
1.) That the offender is a public officer or
employee
2.) He is in charge of a detained prisoner
or a convict by final judgment.
3.) He maltreats such prisoner either by:
a. Overdoing the correction or
handling of a prisoner.
i. By the imposition of a
penalty
that
is
not
authorized
ii. By
imposing
an
authorized penalty in a
cruel
and
humiliating
manner
b. Maltreating such prisoner to
force confession or extorting
information
*Art 235 contemplates ACTUAL CHARGE
nor merely of legal fiction. (PEOPLE v
JAVIER)
*The detention prisoner must be booked in
the office of the police and be put into
prison even just for a short while. (PEOPLE
v BARING)

Elements:
1.) That the offender is entitled to hold a
public office either by election or
appointment
2.) That the law requires that the
offender need to be sworn or give a
bond before assumption of office
3.) That the offender assumes office
without being sworn or given a bond.

When is it qualified?
When the reason for abandonment is to
evade duties of preventing, prosecuting, or
punishing any of the crime falling within
title one and chapter one of title 3 of book
2. (Treason, sedition, rebellion etc.)
*Compared to art 208, art 238 is
committed by any public officer and not
just those who has the duty to institute
prosecution. In the former, abandonment is
not necessary.

Art 237- Prolonging Performance of Duties

and Powers
Art 239- Usurpation of Legislative powers
Elements:
1.) The offender holds public office
2.) The allowable period to discharge the
duties of his office is already expired.
3.) He continues to discharge such
duties.
*Ex:
Officers
that
are
suspended,
separated, declared overage, or dismissed

Elements:
1.) That the offender is a judicial or
executive official
2.) That the offender either:
a. Made rules or regulations
beyond the scope of their
jurisdiction.
b. Attempted to repeal a law
c. Suspends the execution of a
law

Art 238- Abandonment of office or position

Art 240-Usurpation of Executive Powers

*In addition to the penalty prescribe in this

article, the offender also liable for the

Elements:
1.) Offender is a public officer

Elements:

1.) That the offender is a judge

2.) That he either:
a. Assumes power pertaining to
the executive branch
b. Prevented
an
executive
authority
from
lawfully
exercising his functions.
Art 241- Usurpation of Judicial Power
Elements:
1.) Offender is an executive officer
2.) Offender either:
a. Assumed duties pertaining to
judicial branch
b. Prevented a judicial authority
from exercising judicial function

Art
242Disobeying
Disqualification

Request

for

Elements:
1.) Offender is a public officer
2.) That there is a proceeding before
such public officer
3.) There is a question brought to the
proper authorities as regards to his
jurisdiction

4.) That he has been lawfully restrained

from continuing the proceeding
5.) That he opted to pursue such
proceeding

regardless of knowledge of the qualification

is not punishable.

Art 243: Orders or requests by executive

officers to any judicial authority

Elements:
1.) That the offender is a public officer
2.) He solicits or made immoral or
indecent advancement towards a
woman
3.) That such woman is either:
a. A person interested in matters
pending before such officer, or
in which the offender has to
submit a report to, or consult
with a superior officer
b. Under the custody of the
offender as a warden or any
public official in charge or in
custody of prisoners or persons
under arrest.
c. The wife, sister, daughter, or a
relative of the same degree of
affinity

Element:
1.) Offender is an executive officer
2.) He addresses an order or suggestion
to any judicial authority
3.) Such order refers to matters within
the scope of the jurisdiction of such
judicial authorities.
Art 244- Unlawful Appointments
Elements:
1.) That the offender is a public officer
2.) He
made
an
appointment
or
nominates
3.) The person appointed or nominated
is without legal qualification for such
appointment or nomination
4.) That the offender knew that such
perso is not qualified

Art 245- Abuses of Chastity

SOLICIT pertains to proposal

*Crime is consummated by mere proposal

*Nominate and Appoint is different from

recommend hence, recommendation alone