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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. GarciaDizon | 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.