REPUBLIC OF THE PHILIPPINES
SANDIGANBAYAN
Quezon City
-------------------First Division
PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus -
Criminal Case No. 26892
Present:
ISIDRO T. REYES,
Municipal Mayor,
Mambajao, Camiguin,
Accused.
LEONARDO-DE CASTRO,
PJ, Chairperson
PERALTA and
GESMUNDO, JJ.
Promulgated:
August 15, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
GESMUNDO, J.:
The accused, Isidro T. Reyes, a public officer, being the
municipal mayor of Mambajao, Camiguin at the time material
to this case, is charged with Malversation of Public Property
under Article 217 of the Revised Penal Code (RPC), as
amended by Republic Act No. 10601, in an Information dated
30 August 2001:
“That on or about 23 October 2000, or shortly prior to
or subsequent thereto, in the Municipality of Mambajao,
Province of Camiguin, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused
ISIDRO T. REYES, a high-ranking public officer, being then
the Municipal Mayor of the Municipality of Mambajao,
1
An Act Increasing the Penalty For the Crime of Malversation of Public Funds or
Property, by Amending Article Two Hundred Seventeen of the Revised Penal
Code.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 2 of 28
x-----------------------------x
Camiguin, and as such is responsible and accountable for
the properties received by him by reason of the duties of his
office, and who was entrusted and officially issued with one
(1) unit 9MM Pistol (Beretta), with Serial No. M17849Z, two
(2) pieces of magazine, and twenty five (25) rounds of 9 MM
ammunitions, did then and there willfully, unlawfully and
feloniously, through abandonment or negligence, permit any
other person to take away, embezzle or appropriate the
aforestated public properties with a total value of
P42,375.00; and despite repeated official demands from the
Philippine National Police (PNP) Mambajao Police Station,
Mambajao, Camiguin, directing him to turn-over the said
properties, said accused failed to yield and/or turn-over the
same, thereby, causing damage and prejudice to the
Government and public interest.
CONTRARY TO LAW.”2
Before the date of the scheduled arraignment, the
accused moved to dismiss the case on the ground that he had
paid for the value of the lost firearm upon advise of the
Regional Directors of the Commission on Audit (COA) and the
Philippine National Police (PNP) of Region 10 and that after
such payment the case against him shall be considered
closed.3
The Court in its Order dated 17 January 1997 declared
that the subsequent restitution or the belated payment of the
value of the property alleged to have been malversed cannot
operate to exonerate the accused from criminal liability for
malversation of public property and subsequently ordered that
his arraignment should proceed as scheduled.4 Consequently,
the accused was arraigned on 17 January 2002 and with the
assistance of his counsel de parte, pleaded not guilty.5
2
3
4
5
Record, p. 1.
Id at 61-63.
Id. at 72.
Id. at 71.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 3 of 28
x-----------------------------x
On 2 September 2003, the parties submitted their Joint
Stipulation of Facts and Issues6 and upon receipt thereof, the
Court deemed the pre-trial terminated. 7
Trial
ensued
with
the
prosecution
presenting
its
testimonial and documentary evidence culminating with its
written Formal Offer of Evidence dated 27 February 2004.8
Over the objection of the accused,9 the Court resolved to admit
all the exhibits offered as part of the testimony of the
prosecution witnesses considering that the existence of all the
said
exhibits
was
admitted
by
the
accused
in
his
objection/comments to the prosecution’s written formal offer
of evidence.10 Moreover, at the pre-trial, the accused admitted
the due execution of Exhibits “B” to “I”.
After the prosecution rested its case, accused took the
witness stand.
This was followed by his formal offer of
evidence consisting of Exhibits “1” to “8” which the Court
admitted as part of his testimony and over the objections of
the prosecution in view of the admissions made by the latter in
open court and in the pre-trial.11
Thereafter, the prosecution having manifested that it was
not submitting any rebuttal evidence, the Court directed the
parties
to
memoranda.12
submit
simultaneously
their
respective
The prosecution and the defense complied
with the directive on 1 April 2005 and 6 April 2005,
6
7
8
9
10
11
12
Records, pp. 175-182.
Id at 209.
Id at 247-254.
Id at 257-258.
Id at 265.
Id at 317-B.
Id.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 4 of 28
x-----------------------------x
respectively;13 hence, the case is now deemed submitted for
decision.14
DISCUSSION
Evidence of the Prosecution
The prosecution claims that there is overwhelming
evidence showing that the accused, Isidro T. Reyes, has
committed the crime of malversation of public funds as
defined and penalized under Article 217 of the RPC.
First, the accused had received and thereafter had in his
custody one unit 9 mm. pistol berretta bearing serial number
M17849Z, two pieces of magazine and 25 rounds of 9 mm
ammunition
(subject
properties)
as
evidenced
by
the
Memorandum Receipt dated 12 April 1999 duly signed by
him.15
This was not denied by the accused and, in fact, he
acknowledged receipt of subject properties in the Affidavit of
Loss he executed which the defense even offered and marked
as Exhibit “4.” The
subject properties were personally
delivered by SPO4 Antonio Cabrera Chan (SPO4 Chan) and
SPO3 Paul A. Bacor (SPO3 Bacor) in the residence of the
accused on the date indicated in said memorandum receipt.16
This fairly illustrated accused’s receipt and custody of the
subject properties which under the law he is accountable for.
13
14
15
16
Record, pp. 320-350; 351-357.
Id at 317-B.
Exhibit “B” for the prosecution.
Testimony of SPO4 Chan, TSN, 2/27/04, pp. 11-13.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 5 of 28
x-----------------------------x
Second, the accused failed to return the subject property
when required to do so by Chief Inspector Teodorico B. Gallego
(Chief Inspector Gallego) of the Mambajao Police Station in
compliance
with
the
radio
message
from
the
regional
headquarters of the Philippine National Police dated 6 October
2000 to recall all issued 9mm pistols together with magazines
and ammunition.17
Chief Inspector Gallego testified that he
sent a letter18 to accused requesting the latter to turn-in the
subject properties to the PNP. Accused, however, was unable
to return the subject properties and submitted instead an
Affidavit of Loss19 dated 23 October 2000 claiming that the
subject properties, which were kept inside the mayor’s office,
could no longer be found.
The PNP, through Officer-in-Charge SPO4 Chan, wrote
another letter to the accused on 3 March 2001 to return the
subject properties in pursuance of the directive contained in
the radio message20 dated 2 March 2001 from the PNP
Regional
Headquarters
to
recall
subject
properties
for
subsequent turn-over to the PNP.21 In response, the accused
requested22 on 7 March 2001 for 120 days and should this
prove futile, he be allowed replace the pistol with another unit
of the same brand and quality. However, the request of the
accused was denied23 on 26 March 2001 and he was only
given until 31 March 2001 to return the subject properties
otherwise charges will be filed against him.
17
18
19
20
21
22
23
Exhibit “C” for the prosecution. Testimony of Chief Inspector Gallego, TSN,
9/20/03, pp. 24-30.
Exhibit “D” for the prosecution.
Exhibit “4” for the defense.
Exhibit “E” for the prosecution.
Testimony of Chief Inspector Gallego, TSN, 9/20/03, pp. 24-30.
Exhibit “F” for the prosecution.
Exhibit “G” for the prosecution.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 6 of 28
x-----------------------------x
On 24 April 2001, accused having failed to return the
subject properties on the date given him, the Chief of Police of
the Mambajao Police Station filed a complaint against him for
malversation of public property. 24
Finally, it was only on 3 January 2002 that the accused
paid P 40,650.00 in restitution for the subject properties. This
was a good two years after the complaint for malversation
against him was filed.
The prosecution then opined that
although the accused had paid P40,650.00 he cannot be
absolved from the crime of malversation of public funds or
property because the subsequent restitution of the property
alleged to be malversed does not extinguish the criminal
liability of the accused, at best it can only be appreciated as a
mitigating circumstance.
The prosecution concluded that
despite the belated payment of the accused for the subject
properties, he is still liable for violation of Article 217 of the
RPC.
Evidence for the Accused
The accused had never denied that he had in his
possession a berretta pistol with serial number M-17849Z
together with its magazine and ammunition.
He explained
that the subject properties were given to him on 12 April 1999
at his residence as birthday gift by Congressman Jesus
Jurgene Romualdo (Congressman Romualdo) of the Lone
District of the province of Camiguin
such that he was
surprised when a few days later, he was asked to sign a
24
Exhibit “H” for the prosecution.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 7 of 28
x-----------------------------x
Memorandum Receipt25 for the subject properties by SPO4
Chan and SPO3 Bacor.26
Although the berretta pistol, magazines and ammunition
were public property, the accused claimed that not being an
organic member of the PNP, he was not accountable for them.
The accountability lies with the Mambajao Police Station as it
was indicated in the Memorandum Receipt that the subject
properties were for the use of the Mambajao Police Station and
not for the Office of the Mayor of the municipality of
Mambajao, Camiguin.
The accused further claimed that from the time he
received the subject properties, he had not been negligent in
their safekeeping for he had never taken them out from a
locked drawer in his table at the mayor’s office in the
municipal building of Mambajao, Camiguin.
And it was only
when he received the letter dated 30 October 2000 from Chief
Inspector Gallego requesting the return of the subject
properties that he discovered that his office drawer had been
forcibly opened and the subject properties missing therefrom.
After discovery of the loss of the said items, the accused took
painstaking effort to retrieve them and, failing which, he
executed an affidavit of loss which he submitted to the
Mambajao Police Station sometime in October 2000.27
Accused further testified that there was no response from
the PNP until 3 March 2001 when SPO4 Chan sent a letter
requesting the accused to turn-over the subject properties.
25
26
27
Exhibit “B” for the prosecution.
TSN dated 8/3/05, pp. 6-7, 30-31.
Exhibit “4” for the defense.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 8 of 28
x-----------------------------x
Replying thereto, the accused stated in a letter dated 7 March
2001 that he had previously submitted an affidavit of loss and
that despite diligent efforts the subject properties could no
longer be located. At the same time, the accused sought from
the PNP an extension of time to locate the subject properties28
which the Chief of Police of Mambajao, Camiguin denied as he
was given only until 31 March 2001 to return subject
properties. Thereafter, the accused wrote a letter dated 27
March 2001 requesting the PNP officials concerned that in the
event the said items cannot be found, the accused will just pay
for their value.29
Meanwhile, on 26 June 2000, the Board of Survey of the
PNP convened to determine accused’s liability for the loss of
the subject properties. After evaluation of all the records of the
investigation, the Board of Survey found the SPO4 Chan (as
officer-in-charge of the Mambajao Police Station) and Supply
Officer SPO3 Bacor administratively liable for issuing a
Memorandum Receipt for the subject properties to accused -who is a non-organic member of the PNP -- without written
authorization from the PNP Provincial Director.
The Board found accused civilly liable for the loss of the
subject properties. It recommended, however, that accused be
dropped from the property accountability of the Mambajao
Police Station and from the Book of Accounts of the PNP after
he pays for the lost items. Thus, on 3 January 2002, in
compliance with the findings and recommendation of the
Board of Survey, the accused paid for the subject properties in
28
29
Exhibit “5” for the defense.
Exhibit “6” for the defense.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 9 of 28
x-----------------------------x
the amount of P40, 650.00.30
foregoing,
the
accused
As a consequence of the
contended
that
the
subsequent
payment of the subject properties exonerated him from liability
for malversation of public property.
The Court’s ruling
The Revised Penal Code defines the crime of malversation
of public funds or property as follows:
Art. 217. Malversation of public funds or property. –
Presumption of malversation. - Any public officer who, by the
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take
or misappropriate or shall consent, or through abandonment
or negligence, shall permit any other person to take such
public funds or property wholly or partially, or shall
otherwise be guilty of misappropriation or malversation of
such funds or property …
xxx
xxx
xxx
The failure of a public officer to have duly forthcoming
any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or
property to personal use.
To be convicted of the above-cited crime, it is essential
that the following elements concur:
(1) The offender is a public officer;
(2) He has the custody or control of funds or property by the
reason of the duties of his office;
(3) The funds or property involved are public funds or
property for which he is accountable; and
(4) He has appropriated, taken or misappropriated, or has
consented to, or thorough abandonment or negligence
30
Exhibit “1” for the defense.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 10 of 28
x-----------------------------x
permitted, the taking by another person of, such funds
or property.31
From the joint stipulation of facts appearing in the PreTrial Order, the following are the undisputed facts:
31
1.
Accused Isidro T. Reyes is a high-ranking public
official being then the municipal mayor of Mambajao,
Camiguin;
2.
Accused had in his custody one (1) unit of a 9 mm
pistol beretta with serial no. M17842Z, two pieces of
magazine and 25 rounds of 9 mm ammunition;
3.
Accused received a letter dated October 30, 2000 from
Police Inspector Teodorico B. Gallego of the PNP Chief
of
Police,
Mambajao
Police
Station,
requesting/demanding the turnover of the aforecited
firearm and ammunition;
4.
Accused received a letter dated March 3, 2001 from
Officer-In-Charge SPO4 Antonio Cabrera Chan, of the
Camiguin Police Office, demanding/requesting the
turnover of the aforecited firearm and ammunition;
5.
Accused was not able to turn over the 9mm pistol
beretta, two pieces magazine and 25 rounds of 9 mm
ammunition;
6.
The accused never denied his possession of the pistol
with magazine at his office when he discovered the loss
of the same;
7.
The accused asked for time from the PNP authorities
to locate the pistol, the magazine and the
ammunitions involved in this case;
8.
The PNP authorities or the Board of Survey concerned
recommended that the accused be made to pay [for]
the concerned pistol, magazine and ammunitions,
after which the same should be dropped from the
accountability of the Mambajao Police Station;
9.
The accused paid for the pistol, the magazine and the
ammunitions consistent with the recommendation of
the Board of Survey only on January 3, 2002;
People v. Enfermo, G.R. Nos. 148682-85, 30 Nov. 2005 citing Rueda v.
Sandiganbayan, G.R. No. 129064, 29 Nov. 2000, 346 SCRA 341; See also
Sarigumba v. Sandiganbayan. G.R. Nos. 154239-41, 16 Feb. 2005, 451 SCRA
533.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 11 of 28
x-----------------------------x
The accused was not an organic member of the PNP
when the memorandum receipt was issued to him.”32
10.
The first element of the crime is covered by the first
stipulation. The second stipulation is an admission of the
public nature of the subject properties.
Stipulations three,
four and five establish accused’s failure to return subject
properties upon demand by the proper officials of the PNP.
The primordial issue that must be resolved, therefore, is
whether accused is accountable for the subject properties and,
corollary thereto, whether his custody or control over the same
was by reason of the duties of his office. If so, his failure to
account for the subject properties upon proper demand for
their
return
constitutes
prima
facie
evidence
of
misappropriation which he has to rebut with countervailing
evidence.
The prosecution argues that accused is an accountable
public officer and that he received the subject properties by
reason of the duties of his office as Municipal Mayor of
Mambajao, Camiguin. It contends thus:
“Were it not for accused’s position as Municipal Mayor,
he would not have been issued and entrusted with the
subject government properties. Notably, he had the option
to resist custody of the government properties, if he believed
then that he did not have to be entrusted or given custody of
the subject government properties, not being a policeman.
He had the option to refuse their custody, control and
safekeeping. He was after all, the municipal mayor and not
just any other employee who was subject to another person’s
will or desire. His claim that he thought the government
properties were gifts to him is absurd as he in fact signed
willingly and voluntarily an official government document or
32
Record, pp. 202-203.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 12 of 28
x-----------------------------x
a Memorandum Receipt to prove that the said properties
issued to him are in fact government properties, and the
same were in his custody and that he had the duty to return
them when duly demanded. His receipt of the custody and
safekeeping of the government properties therefore had the
accompanying duty and responsibility to account for the
same, as is the regular and legal process in any public or
bureaucratic organization.”33
Accused, on the other hand, insists that he is not
accountable for the subject properties arguing thus:
“1.
He was NOT an organic member of the PNP at the time
he signed the memorandum receipt. (Admitted by the
prosecution in paragraph 10 of the joint stipulation of
facts and quoted in page 2 of the pre-trial order).
2.
Not being an organic member of the PNP by no
stretch of the imagination can he be an accountable
officer and this is shown by the phraseology of Exhibit B of
the prosecution which states: “… which will be used in the
office of the Mambajao Police Station.” So the turning over of
the possession of the pistol, magazine and the ammunitions
is an irregularity since the same is for the use of the
Mambajao Police Station but not in the Office of the Mayor or
for the mayor.
3.
Exhibit 2 (quoted in page 4 of the pre-trial order) and
which the prosecution admits the existence, due execution
and the truth of Exhibits “1”, “2”, “5” and “6” which admits
the accountability of the pistol, magazine and ammunitions
lies with the Mambajao Police Station NOT with the accused,
to wit:
‘Exhibit “2” Official recommendation of the Board of
Survey recommending that the accused be made to
pay for the pistol, magazine and ammunitions, after
which the same shall be dropped from the
ACCOUNTABILITY of the Mambajao Police Station.’
So the prosecution admits, the ACCOUNTABILITY lies
with the Mambajao Police Station NOT with the
accused.”34
After a thorough review of the facts of the case, we hold
that accused, as Municipal Mayor, is accountable for the
33
34
Record, pp. 334-335.
Id. at 354-355 (Emphasis in original).
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 13 of 28
x-----------------------------x
subject properties he received from the Mambajao Police
Station by virtue of the functions of his office.
An accountable officer under Art. 217 of the RPC is a
public officer who, by reason of his office, is accountable for
public funds or property.35
Section 101(1) of the Government
Auditing Code of the Philippines (Presidential Decree No. 1445)
defines accountable officer to be “(e)very officer of any
government agency whose duties permit or require the
possession or custody of government funds or property and
who shall be accountable therefor and for the safekeeping
thereof in conformity with law.”36
In the determination of who is an accountable officer, the
Supreme Court has invariably held that “it is the nature of
the duties which the public officer performs — the fact that,
as part of his duties, he received public money for which he
was bound to account, and not the nomenclature or the
relative importance the position held — which is the
controlling factor.”37
The duties and functions of municipal mayors are
defined by law.
Section 444(b) of Republic Act No. 7160
(otherwise known as the Local Government Code of 1991)
provides, among other things, that Municipal Mayors shall:
“(2) Enforce all laws and ordinances relative to the
governance of the municipality and the exercise of its
corporate powers provided for under Section 22 of this Code,
implement all approved policies, programs, projects, services
35
36
37
See also Querijero v. People, et al., G.R. No. 153483, 14 February 2003, 397
SCRA 465, 473-474.
Id. (Emphasis supplied)
Id.(Emphasis supplied)
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 14 of 28
x-----------------------------x
and activities of the municipality and, in addition to the
foregoing shall,:
Xxx
(iv)
Be entitled to carry the necessary firearm within
his territorial jurisdiction;
(v)
Act as the deputized representative of the
National Police Commission, formulate the peace
and order plan of the municipality and upon its
approval, implement the same and exercise
general and operational control over the local
police forces in the municipality in accordance
with R.A. No. 6975.”
On the other hand, Republic Act No. 6975, otherwise
known
as
Government
the
Act
Department
of
1990,
of
the
defines
Interior
and
and
Local
delineates
the
participation of municipal mayors in the administration of the
PNP. Section 51 thereof provides in part:
“SECTION 51.
Powers
of
Local
Government
Officials Over the PNP Units or Forces. — Governors and
mayors shall be deputized as representatives of the
Commission in their respective territorial jurisdiction. As
such, the local executives shall discharge the following
functions:
Xxx
(b) City and Municipal Mayors — (1) Operational
Supervision and Control. The city and municipal mayors
shall exercise operational supervision and control over PNP
units in their respective jurisdiction except during the thirty
(30) day period immediately preceding and the thirty (30)
days following any national, local and barangay elections.
During the said period, the local police forces shall be under
the supervision and control of the Commission on Elections.
The term "operational supervision and control" shall
mean the power to direct, superintend, oversee and inspect
the police units and forces.
It shall include the power to employ and deploy units
or elements of the PNP, through the station commander, to
ensure public safety and effective maintenance of peace and
order within the locality. For this purpose, the term "employ"
and "deploy" shall mean as follows:
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 15 of 28
x-----------------------------x
"Employ" refers to utilization of units or elements of
the PNP for purposes of protection of lives and properties,
enforcement of laws, maintenance of peace and order,
prevention of crimes, arrest of criminal offenders and
bringing the offenders to justice, and ensuring public safety,
particularly in the suppression of disorders, riots, lawless
violence, rebellious seditious conspiracy, insurgency,
subversion or other related activities.
"Deploy" shall mean the orderly organized physical
movement of elements or units of the PNP within the
province, city or municipality for purposes of employment as
herein defined.
(2)
Integrated Community Safety Plans.
—
The
municipal/city mayor shall, in coordination with the local
peace and order council of which he is the chairman
pursuant to Executive Order No. 309, as amended, develop
and establish an integrated area/community public safety
plan embracing priorities of action and program thrusts for
implementation by the local PNP stations.
It shall, likewise, be the duty of the city or municipal
mayor to sponsor periodic seminars for members of the PNP
assigned or detailed in his city or municipality in order to
update them regarding local ordinances and legislations.
[3)
Administrative Disciplinary Powers. — In the areas of
discipline, city and municipal mayors shall have the powers
to impose, after due notice and summary hearings,
disciplinary penalties for minor offenses committed by
members of the PNP assigned to their respective
jurisdictions, as provided in Section 41 of this Act.
(4)
Other Powers. — In addition to the aforementioned
powers, city and municipal mayors shall have the following
authority over the PNP units in their respective jurisdictions:
(i)
Authority to choose the chief of police from a list of five
(5) eligibles recommended by the provincial police
director, preferably from the same province, city or
municipality.
(ii)
Authority to recommend the transfer, reassignment or
detail of PNP members outside of their respective city
or town residences; and
(iii)
Authority to recommend, from a list of eligibles
previously screened by the peace and order council,
the appointment of new members of the PNP to be
assigned to their respective cities or municipalities
without which no such appointment shall be attested.”
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 16 of 28
x-----------------------------x
From the express terms of Republic Act No. 7160 in
relation to Republic Act No. 6975, accused, as municipal
mayor, is duty-bound to enforce all laws and ordinances
relative to the governance of his municipality and, in carrying
out such function, he is given operational supervision and
control over the local police and is entitled to carry the
necessary firearm within his territorial jurisdiction.
Accused insists at the outset that the subject properties
were given to him by Congressman Romualdo as birthday
presents which he received in his house on his natal day and
that he signed the memorandum receipt over said properties
much later.
We find this assertion undeserving of belief considering
that there is credible documentary and testimonial evidence of
accused having received subject properties on his birthday (12
April 1999) not from Congressman Romualdo but from
Mambajao Police officers SPO4 Chan and SPO3 Bacor.
Exhibit “B” is the Memorandum Receipt signed by
accused which is dated 12 April 1999 and which indicates
that accused received the subject properties from SPO3 Bacor.
Exhibit “I” is the joint affidavit of SPO4 Chan and SPO3 Bacor
wherein they stated, among other things, that on 12 April
1999 they issued a memorandum receipt over the subject
properties and that said properties were duly received by
accused himself. On the witness stand, SPO4 Chan testified
that he and his “Supply PNCO”38 delivered the subject
properties to accused on 12 April 1999 at the latter’s
38
Referring to SPO3 Bacor.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 17 of 28
x-----------------------------x
residence.39
It is presumed that official duty was regularly
performed by said police officers in the absence of any
testimony or document that can reasonably corroborate
accused’s version of the events.
More telling, accused’s own exhibit “2”, which is the
report of the proceedings of the Board of Survey of the
Camiguin Police Provincial Office and which was also offered
as part of the testimony of the accused, proves that he
received subject properties directly from SPO4 Chan and SPO3
Bacor, thus:
“MEMBER: (PINSP BAWI) My next questions will be intended
to SPO3 Bacor, did you obey the order of your
OIC, SPO4 Chan?
WITNESS: Yes, Sir I prepare[d] the Memorandum Receipt
for one (1) each Pistol 9MM Beretta SN:
M17849Z with Two (2) Magazines and Twenty
Five (25) rds of ammunition.
MEMBER: (PINSP BAWI) What happened next?
WITNESS: (SPO3 Bacor) On 12 April 1999, the firearm and
accessories stated above were issue[d] to then
Mayor Isidro T. Reyes and as proof of this ex
Mayor Reyes signed the MEMO RECEIPT dated
12 April 1999.
RECORDER:
I proposed that the MEMO RECEIPT
signed by Ex-Mayor be tagged as exhibit “B”.
CHAIRMAN:
The proposal is approved. Let the Memo
Receipt be incorporated into the records of this
proceeding and be marked ass Exhibit “B” are
there any follow-up questions from the member
of the board.
MEMBER: (PSINP ELISEO B. BORROMEO) My question will
be addressed to Ex-Mayor Isidro T. Reyes. Sir,
do you have any objection with regards to the
statement of the witnesses (SPO4 Chan and
SPO3 Bacor)?
39
TSN, 2/27/04, pp. 12-13.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 18 of 28
x-----------------------------x
MAYOR REYES All of their statements are true, I signed
the Memo Receipt dated 12 April 1999 stating
therein that I acknowledged to have received
from SPO3 Paul Acebar Bacor, Supply PNCO of
Mambajao PS a firearm, pistol 9MM, Beretta SN:
M17849Z with Two (2) Magazines and Twenty
five (25) rds ammunition.”40
Assuming for the sake of argument that accused initially
received the subject properties from Congressman Romualdo,
the fact still remains that accused did not subsequently return
the subject properties when he was later asked to sign a
memorandum receipt therefore. By signing the memorandum
receipt, accused not only admitted the public nature of the
properties but he also acknowledged his accountability over
the same.
Verily, public property can only be used for a
public purpose.41 It stands to reason that when accused was
required to sign a memorandum receipt for his custody of the
subject properties, he was signing not as a private individual
but as Municipal Mayor pursuant to his duty to enforce all
laws and ordinances relative to the governance of his
municipality with the power of general and operational control
over the local police forces and with the right to carry the
necessary firearm within his territorial jurisdiction.
Accused cannot hide behind the excuse that he is not an
organic member of the PNP since what is essential is that
accused had custody and control over the subject properties
by reason of the duties of his office.
Accordingly, as the
Supreme Court has held in a catena of cases, what is
controlling is the nature of the duties of the accused and not
40
41
Record, p. 119.
Presidential Decree No. 1445 otherwise known as the “Government Auditing
Code of the Philippines” states in Section 4 (2) thereof that: “Government Funds
of property shall be spent or used solely for public purpose.”
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 19 of 28
x-----------------------------x
the name or relative importance of his office or employment.42
Thus, it is immaterial that the memorandum receipt indicates
that the properties will be used “in the office of Mambajao
Police Station.”
In fact, a mere clerk may be held guilty of
malversation if he or she is entrusted with public funds or
property and subsequently misappropriates the same.43 In
People v. Hipol,44 the Supreme Court held:
“What is essential is that appellant had custody or
control of public funds by reason of the duties of his office.
He is an employee of, or in some way connected with, the
government and, in the course of his employment, he
receives money or property belonging to the government for
which he is bound to account.”
Finally, accused refers to exhibit “2” which is the report
of the proceedings of the Board of Survey of the PNP Camiguin
Police Provincial Office to prove that the accountability for
subject properties lies not with him but with the Mambajao
Police Station.
Contrary to the position taken by the accused, the
recommendations by the Board of Survey to the effect that -“1.
xxx Ex Mayor Isidro T. Reyes should be ordered to pay
for the lost of one (1) 9MM Pistol (Beretta) SN m17849Z, two
(2) magazines f/9MM and twenty five (25) rds ammos f/9MM
based on the replacement cost and be dropped from the
property accountability of Mambajao Police Station and
likewise be dropped from the Book of Accounts of RSAO, PNP
PRO 10.
2.
Both SOP4 Antonio Cabrera Chan and SPO3 Paul
Acebar Bacor be investigated for Grave Abuse of Authority.
Xxx”45
42
43
44
45
People v. Hipol, G.R. No. 140549, 22 July 2003, 407 SCRA 179. See also Quiñon
v. People, G.R. No. 136462, 19 September 2002 389 SCRA 412; Querijero v.
People, supra note 35; Rueda, Jr. v. Sandiganbayan, G.R. No. 129064, 14 Nov.
2000, 346 SCRA 341; U.S. v. Velasquez, 32 Phil. 157 (1915).
Barriga v. Sandiganbayan, 26 April 2005.
G.R. No. 140549, 22 July 2003, 407 SCRA 179.
Record, p. 121.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 20 of 28
x-----------------------------x
are not binding on this Court for the simple reason that the
determination of who is an accountable officer within the
meaning of Article 217 of the RPC is a judicial function.
Moreover, the decision of the Board of Survey finding accused
civilly liable was based on its assessment that accused, not
being an organic member of the PNP, is not accountable for
the subject properties. As already discussed herein, however,
it is the nature of the duties of accused and not the name or
relative importance of his office or employment that is
controlling.
Having disposed of the first three elements, the Court
must now determine if the prosecution has proven beyond
reasonable doubt the last element, i.e. that the accused has
appropriated, taken or misappropriated, or has consented to,
or thorough abandonment or negligence permitted, the taking
by another person of subject properties.
It is well-settled that to justify conviction for malversation
of public funds or property, the prosecution need only prove
that the accused received public funds or property and that he
could not account for them or did not have them in his
possession and could not give a reasonable excuse for the
disappearance of the same.46
An accountable public officer
may be convicted of malversation even if there is no direct
evidence of misappropriation and the only evidence is that
there is a shortage in his accounts which he has not been able
to explain satisfactorily.47
46
47
People v. Enfermo, supra note 31; People v. Pepito, G.R. Nos. 112761-65, 3
February 1997, 267 SCRA 358,368, See also Felicilda v. Grospe, G.R. No.
102494, 3 July 1992, 211 SCRA 285.
People v. Enfermo, supra.; Navallo v. Sandiganbayan, G.R. No. 97214, 18 July
1994, 234 SCRA 175, 185; Villanueva v. Sandiganbayan, G.E. No. 95627, 16
August 1991, 200 SCRA 722, 734.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 21 of 28
x-----------------------------x
In herein case, accused admits that he failed to produce
the subject public properties at the time of demand by Police
Inspector Gallego.
Since accused is an accountable officer
within the purview of Article 217 of the RPC, his failure “to
have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such
missing funds or property to personal use.” The presumption
of misappropriation can be negated when accused is able to
present sufficient evidence that can nullify any likelihood that
he had put the subject properties to personal use.48
As proof that he did not put the subject properties to
personal use, accused maintains that he kept these under lock
and key in his office drawer. From time to time, he would
inspect them but he never took them out. Finally, when he
was asked to return the subject properties, he was greatly
surprised to discover that his office drawer was forcibly
opened with the subject properties missing therefrom.
He
then exerted diligent effort to locate the missing items without
much success. He subsequently executed an affidavit of loss
dated 23 October 2000, which was marked and offered as
Exhibit “4”.
Notwithstanding
the
foregoing
testimony,
the
presumption of misappropriation stands unrebutted.
The
evidence on record, however, fails to show that accused
misappropriated
48
said
public
property
for
his
personal
Querijero v. People, supra note 35 at 473 citing Madarang v. Sandiganbayan,
355 SCRA 525 and Diaz v. Sandiganbayan, G.R. No. 125213, 26 January 1999,
302 SCRA 118.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 22 of 28
x-----------------------------x
aggrandizement. Rather, the evidence points to the conclusion
that, at the very least, the loss of the subject properties was
through the negligence of the accused.
The presumption of misappropriation stands even when
the evidence points to negligence as the cause of the
malversation
as
said
crime
can
intentionally or by negligence.49
be
committed
either
The Supreme Court, in
Cabello v. Sandiganbayan,50 held that “(t)he dolo or the culpa
present in the offense is only a modality in the perpetration of
the felony.” Thus, “(e)ven if the mode charged differs from the
mode proved, the same offense of malversation is involved and
conviction thereof is proper.”51
The negligence of the accused in the safe-keeping of the
subject firearms has been proven beyond reasonable doubt.
His negligence, being flagrant and palpable, amounts to a
breach of duty which is punishable under the law.52
To begin, accused was flippant in his safekeeping of the
subject properties.
While he may have kept the subject
properties under lock and key in his office drawer, he would
sometimes forget to lock this same office drawer due to various
matters occupying his mind.53
And, while the front door of
accused’s office was always locked at the end of every working
day, the side door was “sometimes forgotten to be locked at
49
50
51
52
53
Cf. Diego v. Sandiganbayan, G.R. No. 139282, 4 September 2000, 339 SCRA
596, 603.
G.R. No. 93985, 14 May 1991, 197 SCRA 94.
Ibid.
Cf. Diego v. Sandiganbayan, supra note 49.
This is shown from the statements accused made in his affidavit of loss dated 23
October 2000. While on the witness stand, accused affirmed the truth of all the
statements he made in said affidavit of loss (see TSN 3/8/05, p. 13).
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 23 of 28
x-----------------------------x
the end of every working day.”54 This side door was utilized by
accused’s personnel as entry point whenever he was out of the
office.55 Naturally, that accused’s room was not always locked
made it possible for anyone of his staff, or any stranger for
that matter, to gain access to his room while he was out of it.
These circumstances amply show that accused was too
relaxed in protecting the subject properties. In Aquino-Castillo
v.
Sandiganbayan,56
the
Supreme
Court
affirmed
the
conviction of the accused therein for malversation through
negligence as she was too relaxed and casual in safeguarding
the public funds entrusted to her custody.
From the foregoing, it is clear that accused failed to
exercise the necessary precautions to secure the safekeeping
of the subject properties under his care. Guns with complete
accessories, per se, are already dangerous to keep. It goes
without saying that they must be guarded with more care and
vigilance than what is usually required of objects less
dangerous. Add to this the fact that the subject properties do
not belong to accused, thus, he should have been extraordinarily diligent in their safekeeping.
Accused’s actions after he allegedly discovered that the
subject properties were missing also leave much to be desired.
It also casts serious doubt as to the truth of his assertion that
he was a victim of theft.
Accused
claims
that
he
exerted
searching for the stolen properties.
54
55
56
diligent
effort
in
Other than this self-
Id.
Id.
G.R. No. 9140, 8 February 1990 (cited in SANDIGNBAYAN REPORTER, Vol. 2,
pp. 445-447).
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 24 of 28
x-----------------------------x
serving assertion, however, we do not see any evidence of
accused lifting a finger to recover said properties other than
having filed an affidavit of loss.
Considering that he is a
municipal mayor with vast resources at his disposal and
considerable authority over the local police, at the very least
he could have requested an investigation into the alleged theft
or robbery with the end view of recovering the lost items.57 No
such investigation took place which again points to accused’s
lackadaisical attitude towards the subject property. Moreover,
considering his excuse that the subject properties were stolen
from his office drawer, it is perplexing that he did not even
have this fact reflected in a police blotter. Finally, accused did
not present anyone to confirm his story of theft.
We thus
agree with the observation of the prosecution that the claim of
theft, especially since it is uncorroborated, is flimsy and selfserving and made merely to negate criminal accountability
under the law.
In Cimafranca v. Sandiganbayan,58 the Supreme Court
rejected as “difficult to believe” the accused’s version as to why
he was not able to immediately return the revolver and engine
involved in that case, thus:
“… the version of petitioner as to why he was not able
to immediately return the property, as correctly observed by
the respondent court, is difficult to believe. He failed to
report the alleged loss of government property to the proper
authorities. While he claimed to have reported the loss of the
engine to the police, said matter was not reflected in the
police blotter. He presented an affidavit of P/Cpl Crispin
Tubayan confirming said report but petitioner did not
57
58
We note that in Exhibit “2” – the report of the proceedings of the Board of Survey
-- accused mentioned that an investigation into the alleged theft was conducted
by one SPO4 Manuel T. Palmere, Sr., the investigator of the Mambajao Police
Station. SPO4 Palmere, Sr. apparently reduced his investigation in writing but
accused did not have said report identified, marked or offered in court which
leads to the presumption that evidence willfully suppressed would be adverse if
produced. See Section 3(e), Rule 131 of the Rules of Court.
G.R. No. 94408, 14 February 1991, 194 SCRA 107.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 25 of 28
x-----------------------------x
present Tubayan as a witness as the affidavit in itself is
hearsay. And although petitioner also testified that he
reported the loss of the revolver to the Provincial Governor,
this fact was not even reflected in the affidavit of loss he
executed. Moreover, he did not ask nor did he present the
Governor to testify in order to confirm his statement.”
Equally untenable is accused’s argument that his
payment of the value of the subject properties puts him
beyond the pale of the law as it is doctrinal that restitution of
the public funds or property work only to mitigate the liability
for malversation.59
The payment of the property malversed
after the commission of the crime, does not extinguish the
criminal liability of the responsible public officer.60
Having established accused’s liability for malversation of
public funds, we now determine the penalty to be imposed
upon him keeping in mind that in malversation, the penalty is
dependent on the value of the public funds, money or property
malversed.61
The
Information
pegged
properties at P 42,375.00.
the
value
of
the
subject
To prove said valuation, the
prosecution presented PNP Circular No. 0001-02 on the “Cost
Valuation of PNP Issued and Loaned Firearms” which
prosecution witnesses SPO4 Chan and Police Inspector
Gallego identified in court and which was duly marked and
offered as Exhibit “A”.
Therein, the cost of a 9mm Beretta
pistol is P 44,000.00 which is higher than what is indicated in
the Information. The discrepancy can be attributed to the fact
that said PNP circular is dated 2002 while the subject
59
60
61
Kimpo v. Sandiganbayan, et al., G.R. No. 95604, 29 April 1994, 232 SCRA 53,
62 citing El Pueblo de Filipinas v. Velasquez, 72 Phil. 98.
Peñanueva, Jr. v. Sandiganbayan, G.R. Nos. 98000-02, 30 June 1993, 224
SCRA 86 and the cases cited therein.
Article 217, RPC; See also Diego v. Sandiganbayan, supra note 49 at 606-607.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 26 of 28
x-----------------------------x
properties were issued to accused much earlier, on 12 April
1999.
As a general rule, the cost valuation stated in the PNP
Circular would have been acceptable as, in fact, the Supreme
Court in Quiñon v. People62 used the cost valuation of the then
Ministry of Defense in establishing the value of the firearms
malversed in that case. However, in this case, as there is a
discrepancy in the valuation of the subject properties as
indicated in the Information and in the PNP Circular and
considering the date of said PNP Circular, we cannot accept
the valuation therein at face value. This is not to say that the
prosecution failed to prove the value of subject properties. It
must be recalled that on 3 January 2002, accused paid for the
subject properties in full in the amount of P 40,650 as
evidenced by Exhibit “1”. Being accused’s own exhibit, he is
bound by it. Accordingly, pursuant to paragraph 4 of Article
217 of the RPC, if the amount malversed exceeds P 22,000.00
the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
WHEREFORE, judgment is hereby rendered finding
accused Isidro T. Reyes GUILTY beyond reasonable doubt of
the offense of Malversation of Public Funds, as defined and
penalized under Article 217 of the Revised Penal Code, and
favorably appreciating the mitigating circumstance of full
payment, after applying the Indeterminate Sentence Law,
hereby sentences him to suffer an indeterminate penalty
ranging from TEN (10) YEARS and ONE (1) DAY of prision
mayor as the minimum, to SEVENTEEN (17) YEARS, FOUR (4)
62
G.R. No. 136462, 19 September 2002 389 SCRA 412.
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 27 of 28
x-----------------------------x
MONTHS and ONE (1) DAY of
reclusion temporal, as the
maximum; to further suffer perpetual special disqualification;
to pay a fine of P 40,650 equal to the amount malversed and
to pay the costs of this action. No civil liability is awarded in
view of the full payment of the properties involved.
SO ORDERED.
ALEXANDER G. GESMUNDO
Associate Justice
WE CONCUR:
TERESITA J. LEONARDODE CASTRO
Presiding Justice, Chairman
DIOSDADO M. PERALTA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were
reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
TERESITA J. LEONARDO-DE CASTRO
Chairman, First Division
DECISION
Criminal Case No. 26892
People vs. Isidro T. Reyes
Page 28 of 28
x-----------------------------x
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution,
and the Division Chairman’s Attestation, it is hereby certified
that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
TERESITA J. LEONARDO-DE CASTRO
Presiding Justice