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 govʼt 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 latterʼs 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.
Victim parts with his money or
property voluntarily.
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 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 govʼt (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 govʼt 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 govʼt 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 govʼt 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

Funds or property usually public
Offender is usually a public officer
who is accountable for the 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
(315)
Funds/property are always private
Offender is a private individual or
even a public officer who is not
accountable for 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 govʼt 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 latterʼs 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 Dereliction of Duty (208)

(238)
There is actual abandonment Public officer does not abandon his
through resignation to evade the office but merely fails to prosecute a
discharge of duties. 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