may NOT be direct evidence to convict one for malversation
of public funds or property. Obviously, there cannot be any
witness, because when you say direct evidence, there is a
CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
Dizon | Manalo | Navarez | Shyu | Tubio
Page 77
witness. Of course, he would not let anyone see him
malversing the funds. It suffices in the audit, these three
things were discovered. If these three are discovered, then
there arises the prima facie presumption that there is a so-
called
MALVERSATION
OF
PUBLIC
FUNDS
OR
PROPERTY
ILLUSTRATION:
Q:
What if a man was walking, in the middle of the night, a
police officer who was conducting a patrol saw something
bulging on his waist. The police officer stopped him and
frisked him and there, they saw a firearm. They ask for the
license, the said man could not produce the license for the
said firearm. He was arrested for illegal possession of
unlicensed firearm, and the firearm was confiscated. During
the trials of the case, the fiscal move for subpoena for the
custodian of the said firearm. The custodian appeared but
failed to bring the firearm. He had already sold the said
firearm confiscated. What crime is committed by the said
custodian?
A: He is liable for Malversation under Article 217.
Q:
His contention was, it cannot be malversation, because
the firearm was owned by a private person. It is not a public
property, therefore I cannot be held liable for malversation.
Is the contention correct?
A: His contention is wrong.
The said firearm
has
already
been
confiscated
by
public
authority,
therefore
it
is
now
deemed,
CUSTODIA LEGIS. The moment it is in
custodialegis, it loses its character as a private
property and it now assumes
a character of a
public property. Hence the crime committed is
Malversation.
Q:
What if, there was this collecting officer, a cashier, and
there were many persons paying. And the long line persons
paying, one cashier said that he needed to answer the call
of nature, and so he asked another fellow cashier to look
after his drawer, and so, he left and went to the restroom.
But he also left the key of his drawing on the key holder. And
so, the moment he left, his fellow cashier went to his drawer
and opened it and took Php 2000 from the collection of A on
the same day. Then A arrived, and he then accepted
collections. In the afternoon, there was a surprise audit
coming from the COA. and it was discovered that based on
the receipts, The php 2000 were missing from the collection
of A. Therefore, A was charged. What crime if any, has been
committed by A? Is A liable for malversation?
A: Yes, he is liable for malversation through
negligence.
That is the passive act. That is through
his abandonment or negligence, he permitted
another person, Cashier B to misappropriate a part
of his collection for the day. Hence A is also liable
for Malversation. Not B, but A, the one who went to
the restroom, because he is the one accountable
for the said public funds in his drawer.
