Technical malversation is not included, nor does it necessarily include the crime of malversation of public funds charged in the information.

The 1987 Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be informed of the nature and cause of accusation against him. (Article III, Section 14 [21) From this fundamental precept proceeds the rule that the accused may be convicted only of the crime with which he is charged.

An exception to this rule, albeit constitutionally permissible, is the rule on variance in Section 4, Rule 120 of the Rules on Criminal Procedure which provides:

“Sec. 4. Judgment in case of variance between allegation and proof.— When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved[.]”

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Section 5 of the same Rule indicates when an offense includes or is included in another:

“Sec. 5. When an offense includes or is included in another.—An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter[.]”

Is the decision of the Sandiganbayan convicting the petitioner of the crime of illegal use of public funds justified by the rule on variance? Does the crime of malversation of public funds include the crime of illegal use of public funds, or is the former included in the latter?

To both questions, the Court answers in the negative.

As gleaned from the information, the petitioner, a public officer, was accused of wilfully, unlawfully, feloniously and with abuse of confidence, taking, appropriating or converting to his own personal use, public funds for which he was accountable. The alleged acts constitute malversation of public funds punishable under Article 217 of the Revised Penal Code, which reads:

"Art. 217. Malversation of public funds or property.— Presumption of malversation.—Any public officer who, by 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 the misappropriation or malversation of such funds or property, shall suffer: . . .[.]"

The essential elements of this crime are:

(a) the offender is a public officer; (b) by reason of his duties he is accountable for public funds and property; and (c) he appropriates, takes, or misappropriates, or permits other persons to take such public funds or property, or otherwise is guilty of misappropriation or malversation of such funds or property.

On the other hand, Article 220 of the Revised Penal Code, for which the petitioner was convicted, reads:

"Art. 220. Illegal use of public funds or property. — Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification[.]"

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The essential elements of this crime, more commonly known as technical malversation, are:

(a) the offender is an accountable public officer;

(b) he applies public funds or property under his administration to some public use; and

(c) the public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated by law ordinance. (See Palma Gil v. People of the Philippines, 177 SCRA 229 [1989]).

Technical malversation is, therefore, not included in nor does it necessarily include the crime of malversation of public funds charged in the information.

Since the acts constituting the crime of technical malversation were not alleged in the information, and since technical malversation does not include, or is not included in the crime of malversation of public funds, he cannot resultantly be convicted of technical malversation.

[In the case at bar], the Sandiganbayan found that the petitioner had not taken, appropriated nor converted the CRBI fund for his personal use and benefit. It, however, was of the belief that based on the evidence given during trial, the petitioner was guilty of technical malversation. What the respondent court should have done was to follow the procedure laid down in Section 11, Rule 119 of the Rules on Criminal Procedure.

“Sec. 11. When mistake has been made in charging the proper offense — When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information[.]”

The Sandiganbayan therefore erred in not ordering the filing of the proper information against the petitioner, and in convicting him of technical malversation in the original case for malversation of public funds.

Ordinarily, the Court's recourse would be to acquit the petitioner of the crime of illegal use of public funds without prejudice, but subject to the laws on prescription, to the filing of a new information for such offense.

OSCAR P. PARUNGAO, petitioner,
vs. SB and People, respondents.

Herminio Z. Canlas for petitioner.

Ponente: GUTIERREZ, JR., J. G.R. No. 96025, May 15, 1991

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