ZENON R. PEREZ vs.

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN

Facts: In a spot audit examination, the Provincial Audit team conducted a spot inspection and found
acting municipal treasurer Zenon Perez of Tubigon, Bohol short of P72,784.57. When asked by the
auditing team as to the location of the missing funds, petitioner verbally explained that part of the
money was used to pay for the loan of his late brother, another portion was spent for the food of his
family, and the rest for his medicine. Zenon eventually refunded all the missing amount by
installment in two months.

He was convicted by the Sandiganbayan.

In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of
malversation of public funds "that have been replenished, remitted and/or returned" to the
government is cruel and therefore unconstitutional, "as government has not suffered any damage.

Issue: Is the contention of petitioner correct?

What is punished by the crime of malversation is the act of a 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 and 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.

Payment or reimbursement is not a defense for exoneration in malversation; it may only be

considered as a mitigating circumstance. This is because damage is not an element of malversation.

In malversation, all that is necessary to prove is that the defendant received in his possession public
funds; that he could not account for them and did not have them in his possession; and that he could
not give a reasonable excuse for its disappearance. An accountable public officer may be convicted
of malversation even if there is no direct evidence of misappropriation and the only evidence is
shortage in his accounts which he has not been able to explain satisfactorily.

Verily, an accountable public officer may be found guilty of malversation even if there is no direct
evidence of malversation because the law establishes a presumption that mere failure of an
accountable officer to produce public funds which have come into his hands on demand by an officer
duly authorized to examine his accounts is prima facie case of conversion.

Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the
accused to adequately explain the location of the funds or property under his custody or control in
order to rebut the presumption that he has appropriated or misappropriated for himself the missing
funds. Failing to do so, the accused may be convicted under the said provision.

It bears stressing that the full restitution of the amount malversed will not in any way exonerate an
accused, as payment is not one of the elements of extinction of criminal liability. Under the law, the
refund of the sum misappropriated, even before the commencement of the criminal prosecution,
does not exempt the guilty person from liability for the crime. At most, then, payment of the amount
malversed will only serve as a mitigating circumstance akin to voluntary surrender, as provided for in
paragraph 7 of Article 13 in relation to paragraph 10 of the same Article of the Revised Penal Code.
 MACADANGDANG VS SANDIGANBAYAN

Alejandro G. Macadangdang, budget officer of the Bureau of Posts for the Province of La Union, five
other postal officials of the province, the auditing examiner and property inspector of the Provincial
Auditor's Office and three private persons dealing with them were charged in four (4) informations for
estafa through falsification of public documents filed with the Sandiganbayan. The charges arose out
of the loss of P26,523.00 resulting from falsified vouchers for the repair of postal vehicles in La
Union when no such repairs were made.

All the accused government officers admitted their signatures on the falsified documents.
Nevertheless, they denied having committed the crimes attributed to them. The accused private
persons also denied any participation in the commission of the crimes.

As it turned out, all the general vouchers and their respective supporting documents were spurious.
There were actually no repairs undertaken on the four Bureau of Posts vehicles covered by the four
general vouchers.

All the accused government officers admitted their signatures on the falsified documents.
Nevertheless, they denied having committed the crimes attributed to them.

All the accused except the three private persons were convicted of estafa through falsification of
public documents.

Regional Director Basilio claims he had signed the four vouchers after he had satisfied himself that
the supporting documents were all in order. He found that his staff members required to sign or initial
them had done so. He paid particular attention to the inspection reports of the COA representative.
Seeing them approved by the Provincial Auditor, he had signed the vouchers.

Nevertheless, Basilio was convicted as one of the conspirators because it is clearly apparent that
Basilio did not examine the documents that were supporting the voucher. A careful examination of
the documents submitted to support the four vouchers should have alerted the accused Basilio as an
ordinarily diligent person would have seen the obvious falsifications.

The irregularities also showed his participation in the conspiracy as one of the vouchers he signed
was for the 'general overhauling of engine and transmission and general overhauling of brakes of
Toyota Jeep Land Cruiser No. JA-10 which was the vehicle assigned to Basilio.

Considering his use of the vehicle on May 22, 1980, before he left on his inspection trip which took
him to Bangued, Abra and Vigan, Ilocos Sur he must have seen from a cursory examination of the
supporting documents that the 'Award' was made only on May 21, 1980. But the repairs paid for are
such major repairs that they could not have been done in one day in a manner that the vehicle would
again be ready for long distance travel the next day. How could Basilio, on May 22, 1980 approve
the vouchers authorizing their payment when he knew that the awards had been granted only the
day before?

Again, in the case of the repair of the 'Mail Truck DT-320, Isuzu,' Basilio declared that he had
approved the request voucher calling for a 'general overhauling of engine; general overhauling of
transmission; body repair; and general overhauling of brakes' of Mail Truck DT-320 on May 21, 1980.
Yet, the very next day, or on May 22, 1980, Basilio signed the voucher approving the payment of
P7,500.00 for the work done.
Basilio should have been put on guard considering the dizzying pace that characterized the
transaction. The request voucher was made on May 21, 1980 and the vouchers for payment the next
day. This means that the canvass, the award, the execution, inspection and acceptance were all
conducted in one day.

Alejandro Macadangdang on the other excuses his participation in the processing of the vouchers as
being his ministerial function. The Sandiganbayan convicted the petitioner on its finding that he
conspired with his co-accused government officers to commit the four crimes of estafa through
falsification of public documents. The lower court arrived at this conclusion because the petitioner
did not question the "obvious irregularity" in the preparation of three of the four subject vouchers
before affixing his signatures on them.

Issue: Is there evidence beyond reasonable doubt to show Macadangdang conspired with the other
accused?

The records show that the only participation of the budget officer in the alleged conspiracy was to
obligate and allot funds. His job was to certify to the availability of funds and to segregate those
funds in the books once allotted.

It was not his job to directly attend to the inspection of vehicles, the ascertainment of whether or not
repairs were needed, the bidding and awards to repair shops, and the determination of whether or
not the repairs were effected pursuant to specifications in the contracts. More particularly, he had
nothing to do with the abstract of bids which were falsified to make it appear that the accused private
persons participated in the bidding when in truth, they did not do so.

Simply because a person in a chain of processing officers happens to sign or initial a voucher as it is
going the rounds, it does not necessarily follow that he becomes part of a conspiracy in an illegal
scheme. The guilt beyond reasonable doubt of each supposed conspirator must be established.

The only material proofs forming the basis for conviction are his signatures on the vouchers and the
request for obligation of allotment. The petitioner explains his not having questioned the three new
vouchers in the afternoon of May 23, 1980 by stating that he had so many documents and
transactions to attend to them. He explains that it was humanly impossible to have known that the
second set of vouchers covered the same three (3) vehicles under the first set of vouchers.

In other words, he failed to recall the plate numbers of the vehicles in the morning vouchers when
confronted with the same plate numbers in the afternoon. The supporting documents were all
properly signed, complete, and in order. Given two possible explanations — one, he was aware all
along of the falsification and two, he signed the papers routinely and perhaps even carelessly, but
not with criminal intent.

Under these circumstances, given the benefit of a doubt, the Court finds that the petitioner, a mere
budget officer, signed the vouchers and prepared the necessary "Request for Obligation and
Allotment" as part of standard operating procedures.

It does not follow that he was part of the conspiracy to defraud.

Every person who signs or initials documents in the course of their transit through standard
operating procedures does not automatically become a conspirator in a crime which transpired at a
stage where he had no participation.
His knowledge of the conspiracy and his active and knowing participation therein must be proved by
positive evidence.

Section 3(h) of R.A. 3019

DOMINGO VS SANDIGANBAYAN
G.R. No. 149175, October 25, 2005

Jaime Domingo, the mayor of San Manuel Isabela and co-owner of D.T. Garcia
Construction, entered into a business transaction with his own municipality in the form of a
Multi-Purpose Pavement (MPP) for the paving and repair of the barangay roads.

Two checks were issued to D.T. Garcia Construction for payment of the cost of gravel
and sand delivered to the barangays. Garcia, co-owner of D.T. Garcia Construction, indorsed
the checks to the Municipality of San Manuel. Domingo handed said checks to the municipal
treasurer who later encashed it to replenish the various cash items of the Domingo. Apparently,
Domingo would occasionally advance the salaries of the municipal employees when the same
were not remitted to the municipality in time for payday. The municipal treasurer, in turn, would
reimburse Domingo when the funds become available.

Is the accused liable under RA 3019?

ANSWER:

Domingo is liable under Section 3(h) of R.A. 3019, where the person liable is any public
officer who directly or indirectly has financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.

The essential elements of the violation of said provision are as follows:

1) The accused is a public officer;

2) he has a direct or indirect financial or pecuniary interest in any business, contract or
transaction;
3) he either:
a) intervenes or takes part in his official capacity in connection with such interest,
or
b) is prohibited from having such interest by the Constitution or by law

In other words, there are two modes by which a public officer who has a direct or indirect
financial or pecuniary interest in any business, contract, or transaction may violate Section 3(h)
of R.A. 3019.
1. The first mode is when the public officer intervenes or takes part in his official
capacity in connection with his financial or pecuniary interest in any business,
contract or transaction.

2. The second mode is when he is prohibited from having such an interest by the
Constitution or by law.
 Domingo, in his official capacity as mayor of San Manuel, Isabela, violated the law via
the first mode, that is, by intervening or taking part in his official capacity in connection with his
financial or pecuniary interest in the transaction regarding the supply and
delivery of mixed gravel and sand to the constituent barangays.

Section 3(j) of RA 3019

BORLONGAN vs. THE OFFICE OF THE OMBUDSMAN

G.R. No. 159754. July 25, 2005

Borlongan charged respondents Rafael B. Buenaventura and Norberto C. Nazareno in

their respective capacities as Governor, BSP, and President, PDIC, of giving undue preference
to the Land Bank of the Philippines (LBP) when they allowed LBP to enforce collection from
Urban Bank Inc. on the promissory notes of the National Food Authority in the amount of
P562,500,000. The ordained collection was allegedly in violation of Section 30 of RA 7653
because it was effected after UBI was already placed under receivership of the PDIC and the
latter had already taken over the operations of UBI.

Are the accused liable under RA 3019?

ANSWER:

They are not liable.

Section 3(j) of R.A. 3019, punishes the act of:
“Knowingly approving or granting any license, permit, privilege or benefit in favor of
another person not qualified for or not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one who is not so qualified or
entitled."
It is clear that respondents did not give undue preference to Land Bank of the
Philippines when it allowed the latter to enforce collection on the subject National Food Authority
promissory notes. Hence, no basis to charge respondent with violation of Section 3(j) of R.A.
3019
Respondents did not give undue preference to Land Bank of the Philippines when the
latter was allowed to enforce collection on the subject National Food Authority Promissory Notes.
The assignment of said NFA notes to LBP was completed on 29 March 2000 before the closure
of UBI on 26 April 2000. as of that date, LBP, as assignee, had full rights to enforce collection of
the subject NFA notes. Respondent Nazareno merely confirmed LBP's authority to enforce
collection on the subject NFA promissory notes on the basis of the perfected Deed of
Assignment executed by UBI in favor of LBP, which was notarized on 29 March 2000 or before
the closure of UBI. The "confirmation of outright purchase of Government Securities" relied
upon by complainant is not the document that established LBP's rights to collect the proceeds of
the NFA notes. It was clear that it was the Deed of Assignment notarized on March 29, 2000,
which gave LBP the right to collect. Even without the "Confirmation of Outright Purchase of
Government Securities", NFA is duty bound to pay the proceeds of the NFA notes to LBP
because of the provisions of the Deed of Assignment, and the fact that LBP has physical
possession of the NFA notes.
 Balderama v. People

Elements of direct bribery

1. The offender is a public officer;
2. The offender accepts an offer or promise or receives a gift or present by himself or
through another;
3. Such offer or promise be accepted or gift or present be received by the public officer
with a view to:
1. committing some crime;
2. in consideration of the execution of an act which does not constitute a crime but the
act must be unjust;
3. to refrain from doing something which it is his official duty to do;
4. The act which the offender agrees to perform or which he executes is connected with
the performance of his official duties.

Elements of crime penalized under Sec. 3(e) RA No. 3019

1. That the accused are public officers or private persons charged in conspiracy with
them;
2. That said public officers committed the prohibited acts during the performance of their
official duties or in relation to their public positions;
3. They caused undue injury to any party, whether the Government or a private party;
4. Such injury was caused by giving unwarranted benefits, advantage or preference to
such parties;
5. The public officers acted with manifest partiality, evident bad faith or gross
inexcusable negligence

Abdulla v People

What are the elements of technical malversation?

1. That the offender is a public officer;

"2. That there is public fund or property under his administration;
"3. That such public fund or property has been appropriated by law or ordinance;
"4. That he applies the same to a public use other than that for which such fund or
property has been appropriated by law or ordinance.

Is a DBM allotment a law or ordinance for one to be guilty of technical malversation?

No. The authorization given by the Department of Budget and Management for the use
of the forty thousand pesos (P40,000.00) allotment for payment of salary differentials of 34
secondary school teachers is not an ordinance or law contemplated in Article 220 of the
Revised Penal Code
Felicito S. Macalino, vs. Sandiganbayan and Office of the Ombudsman (G.R. Nos. 140199-
200, February 06, 2002)

Q: Does the Sandiganbayan have jurisdiction over private individuals?

A: Yes. The only instance when the Sandiganbayan has jurisdiction over a private individual is when
the complaint charges him either as a co-principal, accomplice or accessory of a public officer who has
been charged with a crime within the jurisdiction of Sandiganbayan.

Villa vs Sandiganbayan

The Bidding Committee of Mactan International Airport (MIA) entered into a

transaction for the acquisition of electrical items necessitated by the brownout at the
MIA. In view of the emergency nature of purchase, Arturo Jimenez, the Airport General
Manager, sent Josefina Sucalit to Manila on June 15, 1975 to canvass prices from
reputable suppliers. Sucalit delivered an Advertisement Form to Rocen Enterprises,
which was dealing only in paper products and printed matter. She indicated in her
Travel Report that she made a canvass from a reputable supplier.

On June 25, 1975, the Committee opened sealed bids. It prepared an Abstract of
Bids approving the lowest bid of Rocen Enterprises. This was signed by the committee
member Camilo Villa and Josefina Sucalit. Thereafter, four general vouchers were
prepared and signed by Camilo Villa, Rodolfo Montayre, and Arturo Jimenez.

When Sandiganbayan investigated the transaction, it observed that there was an

overcharge in the four vouchers between the prices quoted by Rocen as reflected in the
Abstract of bids and the amounts actually paid. The overcharge was meant to represent
the cost of installation, but there is no proof that Rocen undertook the installation.

What is the criminal liability of Jimenez, Montayre, Villa, and Sucalit, if any?

Jimenez and Sucalit are both liable for violation of Section 3 (a) of RA 3019,
while Montayre and Villa are not criminally liable.

Under Section 3 (a) of RA 3019, a corrupt practice of any public officer

constitutes the act of persuading, inducing, or influencing another public officer to
perform an act constituting a violation of rules and regulations duly promulgated by the
competent authority or an offense in connection with the official duties of the latter, or
allowing himself to be persuaded, induced, or influenced to commit such violation or
offense.

Here, there is conspiracy between Jimenez and Sucalit when they were
persuaded, induced, or influenced, and persuaded, induced, or influenced each other to
award the purchase of electrical items to Rocen, despite the fact that Rocen is not a
supplier of electrical items and it is a reputable supplier of such items. Hence, they are
both liable for violation for RA 3019, Section 3(a). Meanwhile, Montayre and Villa are
not criminally liable, for they did not take part in the canvassing of supplies. Their act of
signing the reports was an innocent act in view of the emergency nature of the purchase.
Also their reliance upon Sucalit’s reports, although negligent, does not constitute gross
inexcusable negligence punishable under the law.

Soriano Jr. vs. Sandiganbayan; G.R. No. L-65952; July 31, 1984
Question: A, an Assistant City Fiscal was investigating a complaint for qualified theft against B. In the
course of the investigation, A demanded P4,000.00 from B as the price for dismissing the case. A was
charged with Violation of Section 3, paragraph (b), of RA 3019. Is the preliminary investigation of a
criminal complaint conducted by a Fiscal a "contract or transaction" so as to bring it within the ambit of
Section 3 (b) of RA 3019?
Answer: No, the preliminary investigation of a criminal complaint conducted by a Fiscal is not a "contract
or transaction".
"SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any contract or transaction between the Government
and any other party, wherein the public officer in his official capacity has to intervene under the law."
(For reference only)
The investigation conducted by A was not a contract. Neither was it a transaction because this
term must be construed as analogous to the term which precedes it. A transaction, like a contract, is one
which involves some consideration as in credit transactions and this element (consideration) is absent in
the investigation conducted by A.
Rather, the facts make out a case of Direct Bribery defined and penalized under the provision of
Article 210 of the Revised Penal Code and not a violation of Section 3, subparagraph (b) of RA 3019.
Chang vs. People; G.R. No. 165111; July 21, 2006
Question: A was a Municipal Treasurer tasked to examine tax returns of private corporations and
determine the sufficiency or insufficiency of Income Tax assessed on them and collect payments therefor.
B was the Chief of Operations, Business Revenue Examination, Audit Division of the Treasurer's Office.
A and B were charged before the Sandiganbayan to have demanded and received the amount of
P125,000 from GD Inc., through C, its employee in consideration of the issuance by A and B of a
Certificate of Examination that it had "no tax liability" of to the Municipality. In fact, GD Inc. had not
settled the assessed deficiency tax in the amount of P494,000. The Sandiganbayan convicted them of
violation of sec. 3 (b) of RA 3019. Is the Sandiganbayan correct?
Answer: Yes, the Sandiganbayan is correct.
 The following are the elements of violation of sec. 3 (b) of RA 3019: (1) the offender is a public
officer (2) who requested or received a gift, a present, a share, a percentage, or a benefit (3) on behalf of
the offender or any other person (4) in connection with a contract or transaction with the government (5)
in which the public officer, in an official capacity under the law, has the right to intervene.
A and B were undisputedly public officers at the time of the commission of the offense. The
criminal intent originated from their minds. Even before the meeting with C took place, A and B already
made known to C that GDI only had two options to prevent the closure of the company, either to pay the
assessed amount of P494,601.11 to the Municipality, or pay the amount of P125,000 to them.
Since all above-stated elements are present, the Sandiganbayan is correct.

Go v. Sandiganbayan
G.R . No. 172602
April 13, 2007

Question:
May a private person be charged with violation of Sec. 3(g) of RA 3019?

Answer:
Yes, a private person may be charged with violation of Sec. 3(g) of RA 3019.

The fact that one of the elements of Section 3(g) of RA 3019 is "that the accused is a
public officer" does not necessarily preclude its application to private persons who, like
petitioner Go, are being charged with conspiring with public officers in the commission
of the offense thereunder.

The application of the anti-graft law extends to both public officers and private persons.
Private persons, when acting in conspiracy with public officers, may be indicted and, if
found guilty, held liable for the pertinent offenses under Section 3 of RA 3019. This in
consonance with the avowed policy of the anti-graft law to repress certain acts of
public officers and private persons alike constitutes graft or corrupt practices act or
which may lead thereto.

Duterte v. Sandiganbayan
G.R. No. 130191
April 27, 1998

Question:
Can a contract, which is manifestly and grossly advantageous to the government, still
be a subject of Sec. 3(g) of RA 3019 if it has already been duly rescinded?

Answer:
No. Not anymore.
There is no basis in law or in fact to charge petitioners for violation of Sec. 3(g) of R.A.
No. 3019. To establish probable cause against the offender for violation of Sec. 3(g), the
following elements must be present: (1) the offender is a public officer; (2) he entered
into a contract or transaction in behalf of the government; and (3) the contract or
transaction is grossly and manifestly disadvantageous to the government.

The second element of the crime — that the accused public officers entered into a
contract in behalf of the government — is absent. The computerization contract was
rescinded on 6 May 1991 before SAR No. 91-05 came out on 31 May 1991
and before the Anti-Graft League filed its complaint with the Ombudsman on 1 August
1991. Hence, at that time the Anti-Graft League instituted their complaint and the
Ombudsman issued its Order on 12 November 1991, there was no longer any contract
to speak of. The contract, after 6 May 1991 became in contemplation of law, non-
existent, as if no contract was ever executed.

The criminal case against Duterte is dismissed.

TECSON v SANDIGANBAYAN (Sec. 3, Par. C of R.A. No. 3019)

Demetrio Tecson was the then mayor of Prosperidad, Agusan del Sur. He solicited and
received P4,000 from Salvacion Luzana in consideration of the issuance of the latter's
business permit. Luzana filed administrative and criminal charges against Tecson.
Tecson argued that the P4,000 he solicited from Luzana was used by him for the town
fiesta. The Sandiganbayan found Tecson guilty of vioalting Sec. 3, Par. C, of RA 3019.
Tecson appealed the case to the Supreme Court but the Supreme Court affirmed the
ruling of the Sandiganbayan.

Sec. 3, Par. C, of RA 3019:

“Directly or indirectly requesting or receiving any gift, present or other pecuniary or

material benefit, for himself or for another, from any person for whom the public
officer, in any manner or capacity, has secured or obtained, or will secure or obtain,
any Government permit or license, in consideration for the help given or to be given,
without prejudice to Section thirteen of this Act.”

PEOPLE v BALAO (Sec. 3, Par. E, RA 3019)

Robert P. Balao, Josephine C. Angsico, Virgilio V. Dacalos, Felicisimo Lazarte, Jr.,

Josephine T. Espinosa, and Noel H. Lobrido, are all public employees being officers of
the National Housing Authority. They were charged for violating Sec. 3, Par. E of RA
3019 by mutually helping with each other and with accused ARCEO C. CRUZ, a private
individual and General Manager of A.C. Cruz Construction.
Public funds amounting to P232,628.35 were paid to A.C. Cruz Construction supposedly
for the excavation and roadfilling works on the Pahanocoy Sites and Services Project in
Bacolod City despite the fact that no such works were undertaken by A.C. Construction
as revealed by the Special Audit conducted by the Commission on Audit, thus accused
public officials in the performance of their official functions had given unwarranted
benefits, advantage and preference to accused Arceo C. Cruz and A.C. Construction and
themselves, to the damage and prejudice of the government.

The Sandiganbayan found that the information filed against the above-mentioned
public officials was inadequate for failing to state the acts or omissions of accused-
movants Balao, Angsico, and Dacalos. Hence, the Sandiganbayan granted the motion to
quash filed by Balao, Angsico, and Dacalos.

The Supreme Court however reversed the decision of Sandiganbayan. The Supreme
Court reiterated the case of Dela Chica v. Sandiganbayan, which laid down the essential
elements of Section 3(e) of RA 3019, as follows:

1. That the accused are public officers or private persons charged in conspiracy
with them;

2. That said public officers committed the prohibited acts during the performance
of their official duties or in relation to their public positions;

3. That they caused undue injury to any party, whether the Government or a
private party;

4. That such injury was caused by giving unwarranted benefits, advantage or

preference to such parties; and

5. That the public officers acted with manifest partiality, evident bad faith or
gross inexusable negligence.

Clearly, the allegations in the information, if hypothetically admitted, would establish

the essential elements of the crime. The information stated that (1) Balao, Lazarte, Jr.,
Angsico, and Dacalos were the general manager, team head of the Visayas Management
Office, and Visayas division manager, respectively, of the National Housing Authority;
(2) they committed the prohibited acts "in or about the month of March, 1992," "while
in the performance of their official functions"; (3) they caused undue injury to the
Government in the amount of P232,628.35, "supposedly for the excavation and
roadfilling works on the Pahanocoy Sites and Services Project in Bacolod City despite
the fact that no such works were undertaken"; (4) they gave "unwarranted benefits,
advantage and preference to accused Arceo C. Cruz and A.C. Construction and
themselves"; and (5) they acted "with deliberate intent, with manifest partiality and
evident bad faith."