Parungao vs. Sandiganbayan

An accused charged with malversation of public funds under Article 217 of the Revised Penal Code cannot be convicted of illegal use of public funds (technical malversation) under Article 220, because the latter offense is neither included in nor necessarily includes the former. A conviction for a crime different and distinct from that alleged in the information violates the constitutional right to be informed of the nature and cause of the accusation.

Oscar P. Parungao was the municipal treasurer of Porac, Pampanga, and by reason of that office was accountable for the public funds he collected and received. The case turns on the line separating two provisions of the Revised Penal Code: Article 217, which punishes a public officer who appropriates, takes, or misappropriates accountable public funds or permits another to take them, and Article 220, which punishes a public officer who applies public funds under his administration to a public use other than that for which they were appropriated by law or ordinance.

Oscar P. Parungao was the municipal treasurer of Porac, Pampanga when the Sandiganbayan tried him on an information alleging that on or about September 1980, or sometime subsequent thereto, being a public officer with custody or control of and accountable for the public funds collected and received by him by reason of the duties of his office, he wilfully, unlawfully, feloniously and with abuse of confidence took, appropriated and converted to his own personal use and benefit the amount of P185,250.00, to the damage and prejudice of the government. He entered a plea of not guilty.

At the pretrial conference, Parungao admitted that on September 29, 1980, as municipal treasurer of Porac, he received from the Ministry of Public Works and Highways the amount of P185,250.00 known as the fund for construction, rehabilitation, betterment and improvement (CRBI) for the concreting of Barangay Jalung Road in Porac. The prosecution then presented six witnesses and sought to establish that he misappropriated the fund for his personal use because, while the fund was already completely exhausted, the concreting of Barangay Jalung Road remained unfinished. Among those witnesses was Armando Lacsamana, who testified that the Province of Pampanga receives an annual CRBI fund; that in 1980 Barangay Jalung, Porac, was one of the recipients in the amount of P185,250.00; that CRBI funds are released to the provincial treasurer and withdrawn by the municipal treasurer of the municipality where a project is to be implemented; and that, after their office through Engr. Anselmo Fajardo conferred with the barangay captain on what project the barangay wanted to undertake, it was agreed that the fund be utilized for concreting the Barangay Jalung road, for which a program of work with supporting documents was prepared.

In his defense, Parungao accounted for the entire P185,250.00: P126,095.59 was disbursed for materials delivered by the contractor under Voucher Nos. 41-80-12-440 and 41-80-12-441 for P86,582.50 and P39,513.09, respectively, while P59,154.41 was used to pay, upon the insistence of then Porac Mayor Ceferino Lumanlan, the labor payrolls of the different barangays in the municipality.

After hearing, the Sandiganbayan acquitted Parungao of malversation of public funds but convicted him of illegal use of public funds. On the acquittal, it relied on the Certificate of Settlement issued to the accused, which certified that his money, property and accountable forms as municipal treasurer of Porac for the period from February 6, 1980 to December 31, 1980 had been audited and found correct and which was signed by Auditor 1 Rolando A. Quibote and approved by Provincial Auditor Jose C. de Guzman; on the admissions of prosecution witnesses Homer Mercado and District Engineer Lacsamana regarding the delivery of materials and the grading thereof on the project site by the contractor; on the finding of NBI Agent Azares that Parungao had submitted disbursement vouchers and supporting documents to the Provincial Auditor's Office which were audited and found in order by Auditor Quibote; and on the acknowledgments of Emerenciana Tiongco and auditing examiner Jose Valencia that the two disbursements were duly entered in the Treasurer's Journal of Cash Disbursements and Cashbook. Those considerations, together with the presumption of innocence, would not allow a finding that the accused appropriated the P185,250.00 for his personal use and benefit.

The Sandiganbayan nevertheless held that, while the accused could be deemed to have fully accounted for the amount, he allowed the use of part of the funds for a purpose other than what it was intended, giving P59,154.41 to the municipal mayor of Porac to pay the labor payrolls of the different barangays of the municipality, which resulted in the non-completion of the project and violated Article 220 of the Revised Penal Code. Parungao moved for reconsideration, and when the Sandiganbayan denied the motion he brought the matter to the SC by petition for review.

• Right to be Informed / Conviction for a Different Crime: Petitioner argued that he cannot be convicted of a crime different and distinct from that charged in the information.
• Grave Abuse of Discretion: Petitioner assigned as error the Sandiganbayan's denial of his motion for reconsideration and its affirmance of his conviction for technical malversation, as well as its failure to consider in his favor documents which he described as mute but eloquent proof of his innocence.

• Conviction for a Crime Not Charged: Whether the Sandiganbayan may convict the petitioner of illegal use of public funds under Article 220 of the Revised Penal Code when the information charged only malversation of public funds under Article 217.
• Variance Rule: Whether the conviction is justified by the rule on variance — that is, whether malversation of public funds necessarily includes, or is necessarily included in, illegal use of public funds.
• Guilt for Illegal Use of Public Funds: Whether the petitioner is guilty of illegal use of public funds under Article 220 of the Revised Penal Code.

• Conviction for a Crime Not Charged: No. The accused may be convicted only of the crime with which he is charged, a rule that proceeds from the constitutional right to be informed of the nature and cause of the accusation. The information alleged only malversation of public funds under Article 217.
• Variance Rule: No. The variance rule in Section 4, Rule 120 permits conviction only of an offense included in or necessarily including the offense charged. The elements of malversation of public funds and of technical malversation are entirely distinct, so neither offense includes the other.
• Guilt for Illegal Use of Public Funds: No. Article 220 requires that the funds be applied to a public use other than that provided by law or ordinance. No law or ordinance dedicated the CRBI fund to the concreting of Barangay Jalung Road; the use was merely an internal arrangement between the Department of Public Works and Highways and the barangay captain.

• Conviction for a Crime Not Charged: The 1987 Constitution mandates that the accused in all criminal prosecutions shall enjoy the right to be informed of the nature and cause of the accusation against him (Article III, Section 14[2]). From this fundamental precept proceeds the rule that the accused may be convicted only of the crime with which he is charged. The information alleged that Parungao, a public officer accountable for public funds, wilfully, unlawfully, feloniously and with abuse of confidence took, appropriated and converted to his own personal use the amount of P185,250.00 — acts constituting malversation of public funds under Article 217. The Sandiganbayan instead convicted him of illegal use of public funds under Article 220. Because the acts constituting technical malversation were not alleged in the information, and because technical malversation neither includes nor is included in malversation of public funds, he could not be convicted of technical malversation. What the Sandiganbayan should have done, once it became manifest that a mistake had been made in charging the proper offense and that the accused could not be convicted of the offense charged or of any offense necessarily included therein, was to follow Section 11, Rule 119 of the Rules on Criminal Procedure: commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. It erred in not ordering the filing of the proper information and in convicting him of technical malversation in the original case.

• Variance Rule: The exception to the rule that the accused may be convicted only of the crime charged, albeit constitutionally permissible, is the rule on variance in Section 4, Rule 120, which allows conviction of the offense proved when it is included in that charged, or of the offense charged when it is included in that proved. Section 5 of the same Rule supplies the test: an offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the 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 part of those constituting the latter. The SC compared the elements. Article 217 requires that (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. Article 220 requires that (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 funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance. The elements are entirely distinct and different: in malversation of public funds the offender misappropriates public funds for his own personal use or allows another to take such funds for the latter's personal use, whereas in technical malversation the public officer applies the funds not for his or another's personal use but to a public use other than that for which they were appropriated by law or ordinance. Technical malversation is therefore not included in, nor does it necessarily include, the crime of malversation of public funds charged in the information.

• Guilt for Illegal Use of Public Funds: Ordinarily the SC's recourse would have been to acquit the petitioner of illegal use of public funds without prejudice, subject to the laws on prescription, to the filing of a new information for such offense. Considering, however, that all the evidence given during the trial in the malversation case is the same evidence that would be presented and evaluated in a technical malversation case, and in order to spare the petitioner from the rigors and harshness of another trial and the judicial system from an unnecessary burden, the SC passed upon the merits. Article 220 requires that public funds or property have been diverted to a public use other than that provided for by law or ordinance, as held in Palma Gil vs. People of the Philippines, 177 SCRA 229 (1989). Lacsamana's testimony shows that the CRBI fund is a general fund, and that its utilization specifically for the concreting of Barangay Jalung Road was merely an internal arrangement between the Department of Public Works and Highways and the barangay captain and was not particularly provided for by law or ordinance. There is no dispute that the money was spent for a public purpose — payment of the wages of laborers working on various projects in the municipality — and laborers' wages enjoy high priority as claims against the employers' funds and resources. In the absence of a law or ordinance appropriating the CRBI fund for the concreting of Barangay Jalung Road, the petitioner cannot be declared guilty of the crime of illegal use of public funds.

• Right to be informed of the nature and cause of accusation — Guaranteed by Article III, Section 14(2) of the 1987 Constitution, from which proceeds the rule that the accused may be convicted only of the crime with which he is charged. The SC applied it to strike down Parungao's conviction for technical malversation, an offense never alleged in the information for malversation of public funds.
• Rule on variance — When the offense proved differs from the offense charged, the accused may be convicted of the offense proved if it is included in the offense charged, or of the offense charged if it is included in the offense proved (Section 4, Rule 120). An offense charged necessarily includes the offense proved when some of the essential elements of the former, as alleged, constitute the latter; an offense charged is necessarily included in the offense proved when the essential ingredients of the former form part of those constituting the latter (Section 5, Rule 120). The SC held the rule unavailable because the two offenses are entirely distinct.
• Malversation of public funds (Article 217, RPC) — Elements: (a) the offender is a public officer; (b) by reason of his duties he is accountable for public funds or 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. The offender converts the funds to his own personal use or allows another to take them for the latter's personal use.
• Illegal use of public funds or technical malversation (Article 220, RPC) — Elements: (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 to which they are applied is different from the purpose for which they were originally appropriated by law or ordinance. The third element is decisive: absent a law or ordinance fixing the purpose of the fund, there can be no technical malversation.
• Distinction between malversation and technical malversation — In malversation the funds are misappropriated for the officer's own personal use or allowed to be taken for another's personal use; in technical malversation the funds are applied not for personal use but to a public use other than that fixed by law or ordinance. Because the elements are entirely distinct, neither offense includes the other, and the variance rule cannot bridge the gap.
• Procedure where the proper offense is not charged — Under Section 11, Rule 119, when it becomes manifest before judgment that a mistake was made in charging the proper offense and the accused cannot be convicted of the offense charged or of any offense necessarily included therein, 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 SC held the Sandiganbayan erred in not following this procedure and in proceeding to convict for the uncharged offense.

• "From this fundamental precept proceeds the rule that the accused may be convicted only of the crime with which he is charged." — The rule that controlled the first issue, drawn from the constitutional right to be informed of the nature and cause of the accusation.
• "A comparison of the two articles reveals that their elements are entirely distinct and different from the other." — The core of the ruling that technical malversation is neither included in nor necessarily includes malversation of public funds.
• "Technical malversation is, therefore, not included in nor does it necessarily include the crime of malversation of public funds charged in the information." — The conclusion that foreclosed conviction under the variance rule.
• "In the absence of a law or ordinance appropriating the CRBI fund for the concreting of the Barangay Jalung Road, the petitioner cannot be declared guilty of the crime of illegal use of public funds." — The SC's ruling on the merits, resting on the third element of Article 220.

• Palma Gil vs. People of the Philippines, 177 SCRA 229 (1989) — Cited to support the requirement that for technical malversation to exist, public funds or properties must have been diverted to a public use other than that provided for by law or ordinance.

• Article III, Section 14(2), 1987 Constitution — Guarantees the accused the right to be informed of the nature and cause of the accusation; the SC used it to hold that Parungao could be convicted only of the crime charged in the information.
• Article 217, Revised Penal Code — Defines malversation of public funds; the SC enumerated its three elements and held it was the only crime alleged in the information.
• Article 220, Revised Penal Code — Defines illegal use of public funds (technical malversation); the SC enumerated its three elements and held the third was not satisfied because no law or ordinance fixed the purpose of the CRBI fund.
• Section 4, Rule 120, Rules of Court — The variance rule; held inapplicable because the offense proved is neither included in nor necessarily includes the offense charged.
• Section 5, Rule 120, Rules of Court — Defines when an offense includes or is included in another; applied to show that the two offenses do not overlap.
• Section 11, Rule 119, Rules of Court — Governs the case where a mistake was made in charging the proper offense; the SC held the Sandiganbayan should have ordered the filing of the proper information and dismissed the original case instead of convicting.

• Justice Feliciano (Concurring) — Concurred in setting aside the Sandiganbayan decision on the ground that malversation of public funds under Article 217 neither includes nor is included in illegal use of public funds under Article 220, so no conviction for the latter could be had under the information actually filed.

• Justice Feliciano (Dissenting) — Dissented from the majority's act of determining the merits as if an information under Article 220 had been filed, which foreclosed the Government's opportunity to prove statutory authority for the disbursement. He pointed to P.D. No. 702 and Batas Pambansa Blg. 40 (the 1980 General Appropriations Act), which prima facie appropriated CRBI funds for the construction, rehabilitation and improvement of barangay roads, including Barangay Jalung Road, and would have set aside the Sandiganbayan decision without prejudice to a new information under Article 220.