MAXIMO FELICILDA, PETITIONER, VS. HON. NATHANAEL M. GROSPE, ROMEO M. ESCAREAL, JOSE S. BALAJADIA, IN THEIR CAPA­CITY AS ASSOCIATE JUSTICES PRESIDING THE SECOND DIVISION OF THE S…

This is a petition for review on certiorari of the
decision dated October 11, 1991 of the Sandiganbayan in Criminal Case No. 15232
entitled, “People of the Philippines vs. Maximo Felicilda,”
convicting the petitioner of the crime of having malversed or embezzled public
property, consisting of the service firearms issued to him as a member of the
Integrated National Police of the Municipality of Tomas Oppus, province of
Southern Leyte, namely:

“one (1) .38 cal.

revolver Squire

Bingham with Serial

No. 954741 with

49 rounds of

ammunitions      – P2,000 more

or less (1984)

purchase value

“one (1) M16 Arma?

lite Rifle with

Serial No. 114431

with 140 rounds of

ammunitions      – P3,000 more

or less (1984)

purchase value

Total                  P5,000 more

or
less”
(p. 3, Rollo)

After trial, judgment was promulgated on November 8, 1991 by the
Sandiganbayan, the dispositive portion which reads:

“WHEREFORE, finding the accused GUILTY beyond reasonable doubt
of the offense of malversation of public property as charged herein, and
crediting him with the mitigating circumstance of restitution, and after
applying the provisions of the Indeterminate Sentence Law, he is hereby
sentenced to suffer the indeterminate penalty of imprisonment of TWO (2) YEARS
and SIX (6) MONTHS of prision correccional, as minimum, to SIX
(6) YEARS and one (1) DAY of prision mayor, as maximum, to pay a
fine of P5,000.00 equal to the total value of the property malversed although
restituted, and to suffer the penalty of perpetual special disqualification.

“Costs against the accused.” (p. 26, Rollo.)

The antecedent facts are summarized in the Solicitor General’s
comments on the petition, as follows:

“2. On April 5, 1988, Capt. Tomas E. Tijano,
Commanding Officer of the 353rd PC Company, made a surprise inspection in the
Police Station of Tomas Oppus including a ‘showdown’ inspection of all firearms
issued. Petitioner, who reported for
work that morning, failed to show up during the inspection. He disappeared from the station and failed
to report back for work for the next succeeding days.

“3. Capt. Tijano and P/Sgt. Jose V. Autido,
Station Commander, went to petitioner’s house right after the inspection to
verify the whereabouts of the firearms issued to petitioner. Petitioner’s wife informed them that
petitioner reported for work that morning.

“4.   An
investigation was immediately conducted. In a report dated April 27, 1988, Sgt. Autida recommended that
petitioner be dismissed from the service for unjustified absence without leave
(AWOL) and for taking with him the firearms and ammunitions issued to him.

“5.    On September 24, 1990, more than two (2)
years after he disappeared, petitioner surrendered to the police station the
Armalite rifle (M16) and revolver Caliber .38 which had been issued to him.

“6. In the meantime, Criminal Case No. 15232
for Malversation of Government Property was filed against petitioner before the
Sandiganbayan. On November 16, 1990,
petitioner was arraigned wherein he entered a plea of ‘not guilty.’

“7.    During the trial, petitioner put up the
defense that the firearms were stolen from him and he recovered them only on
September 21, 1990 under the following circumstances: he first noticed that his firearms were missing on February 26,
1988 and he suspected that they were stolen by his friend, Ramon Gonzales,
because the latter had been visiting him at his house and he immediately looked
for Gonzales but because he could not find him, he did not appear during the
inspection on April 5, 1988, and that, it was only on September 19, 1990 that
he received information about the firearms when Anabel Capote, common-law wife
of Gonzales, came to their house in Looc, Tomas Oppus and informed him that his
firearms were with Gonzales at their house in Liloan, Southern Leyte and the
following day he recovered the firearms and surrendered the same at the police
station on September 24, 1990.

“8. On November 8, 1991 the Sandiganbayan,
Second Division promulgated its Decision convicting petitioner of the crime
charged.” (pp. 43-44, Rollo.)

The main thrust of appellant’s petition for review is his
contention that the Sandiganbayan erred in finding him guilty of conversion of
the Armalite rifle and .38 caliber revolver, with their respective accessories
and ammunition, despite: (1) the joint
certification of prosecution witnesses, Pfc. Henry G. Novan and P/Sgt. Jose B.
Autido, that he “has no money and Property Accountability in this
Station” (Exh. 3); (2) the certification of prosecution witness P/Sgt.
Autida that the “issued firearms of ex-patrolman Maximo Felicilda had not
been used in committing crime” (Exh. 5); (3) absence of prosecution
evidence that he ever attempted to dispose of the said firearms; and (4) the
certification of P/Sgt. Autida that he (Ex-Patrolman Maximo Felicilda)
“personally turned over his issued firearms Armalite Rifle (MI6) with
Serial No. 114431, make colt and Revolver Caliber .38 with Serial No. 954741,
Squire Bingham.” (p. 11, Rollo.)

The principal issue in this case is whether the petitioner was
properly convicted of malversation of public property.

The elements of malversation under Art. 217 of the Revised Penal
Code are as follows:

1.              
That the offender be a public officer;

2.              
That he had the custody or control of funds or property by
reason of the duties of his office;

3.              
That those funds or property were public funds or property for
which he was accountable; and

4.              
That he appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted another person to take them.

Petitioner argued that he is not liable for malversation as the
armalite rifle and revolver were not appropriated by him for his own use and
that his delay in accounting for the armalite rifle and revolver did not
constitute conversion of the same.

The petition is devoid of merit.

To establish the elements of malversation and justify conviction,
the prosecution has only to prove that the accused received public funds or
property; and that he could not account for them, did not have them in his
possession, and could not give a reasonable excuse for the disappearance of the
same. (De Guzman vs. People, 119 SCRA
337.) In the present case, when the petitioner deliberately absented himself
from the surprise inspection and “showdown” of firearms, and went
AWOL for two (2) years without surrendering his firearms or explaining his
failure to produce them, he became liable for malversation.

His allegation that the firearms were stolen from him was
evidently rejected by the Sandiganbayan as unworthy of belief in view of his
failure to report to his superiors the alleged theft upon its alleged
occurrence on February 26, 1988, nor even during the “showdown inspection”
on April 5, 1988. That omission and his
subsequent disappearance lead to no other conclusion than that he appropriated
the firearms for his own benefit and advantage, or allowed another or others to
use or misappropriate them. Malversation consists not only in misappropriating or converting public
funds or property to one’s personal use but also in knowingly allowing another
or others to make use of or misappropriate the funds or property (Labatagos vs.
Sandiganbayan, 183 SCRA 415).

Petitioner’s assertion that his delay in accounting for the
firearms did not amount to malversation, is without merit.

“In malversation of public funds or estafa, payment,
indemnification, or reimbursement of, or compromise as to, the amounts or funds
malversed or misappropriated, after the commission of the crime, affects only
the civil liability of the offender but does not extinguish his criminal
liability.” (People vs. Miranda, 2 SCRA 262.)

WHEREFORE, the petition is DISMISSED and the appealed
decision of the Sandiganbayan is AFFIRMED with costs against the petitioner.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla,
Bidin, Medialdea, Regalado, Davide, Jr., Romero, Nocon, and Bellosillo, JJ., concur.