Article 11- Justifying Circumstance: C.

Fulfillment of duty or lawful exercise of right

People vs. Oanis

July 27, 1943 (74 Phil 257)
PARTIES:
Plaintiff and appellee: People of the Philippines
Defendants and appellant: Antonio Oanis, Alberto Galanta
FACTS:
Antonio Oanis and Alberto Galanta were instructed to arrest a notorious criminal and
escaped convict, Anselmo Balagtas, and if overpowered, to get him dead or alive.
They went to the suspected house then proceeded to the room where they saw the
supposedly Balagtas sleeping with his back towards the door. Oanis and Galanta
simultaneously or successively fired at him which resulted to the victims death. The
supposedly Balagtas turned out to be Serepio Tecson, an innocent man.

ISSUE:
1. WON Oanis and Galanta incur no liability due to innocent mistake of fact in the
honest performance of their official duties.
2. WON Oanis and Galanta incur no criminal liability in the performance of their duty.
HELD:
1. No. Innocent mistake of fact does not apply to the case at bar. Ignorance facti
excusat applies only when the mistake is committed without fault or carelessness.
The fact that the supposedly suspect was sleeping, Oanis and Galanta could have
checked whether it is the real Balagtas.
2. No. Oanis and Galanta are criminally liable. A person incurs no criminal liability
when he acts in the fulfillment of a duty or in the lawful exercise of a right or office.
There are 2 requisites to justify this: (1) the offender acted in teh perfomance of a
duty or in the lawful exercise of a right or office, (2) that the injury or offense
committed be the necessary consequence of the due performance of such duty or
the lawful exercise of such right or office. In this case, only the first requisite is
present.

People vs Ulep
Wapili, having a high fever and insensibly talking to himself, was acting strangely in
his home (nasisiraan na ng ulo). His brother in law was trying to calm him down but
to know avail. Wapili locked himself in his room. Later on, he went out naked and
chased his brother in law (Leydan). Leydan and neighbours tried to tie him with
rope but to no avail so he got loose in the village. Leydan went to a policewoman to
report the incident and while this was happening, Wapili turned up in front of the
policewomans house to bang her vehicle so she called for assistance. Later on,
SPO1 Ulep and 2 other police officers went to the scene where they saw Wapili
armed with a bolo and a rattan stool (sabi naman ng relatives ni Wapili wala siyang
dalang bolo). Ulep fired a warning shot but Wapili charged towards them so Ulep
shot him. Wapili fell to the ground. Ulep came closer then pumped another bullet to
his head, literally blowing his brains out. Ulep: self-defense and fulfilment of a duty.
Issue: w/n Ulep is liable for the death of Wapili
SC: YES. Liable for homicide
Before the justifying circumstance of fulfillment of a duty under Art.
11, par. 5, of RPC may be successfully invoked, the accused must prove the
presence of two (2) requisites, namely, that he acted in the performance of
a duty or in the lawful exercise of a right or an office, and that the injury
caused or the offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or office. The
second requisite is lacking in the instant case.
During the first stage, the victim threatened the safety of the police officers
by menacingly advancing towards them, notwithstanding accusedappellant's previous warning shot and verbal admonition to the victim to
lay down his weapon or he would be shot. As a police officer, it is to be
expected that accused-appellant would stand his ground. Up to that point,
his decision to respond with a barrage of gunfire to halt the victim's further
advance was justified under the circumstances. After all, a police officer is
not required to afford the victim the opportunity to fight back. Neither is he

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

expected - when hard pressed and in the heat of such an encounter at

close quarters - to pause for a long moment and reflect coolly at his peril,
or to wait after each blow to determine the effects thereof.
However, Ulep cannot be exonerated from overdoing his duty during the
second stage of the incident - when he fatally shot the victim in the head,
perhaps in his desire to take no chances, even after the latter slumped to
the ground due to multiple gunshot wounds sustained while charging at the
police officers. Sound discretion and restraint dictated that Ulep, a veteran
policeman, should have ceased firing at the victim the moment he saw the
latter fall to the ground. The victim at that point no longer posed a threat
and was already incapable of mounting an aggression against the police
officers. Shooting him in the head was obviously unnecessary.
Likewise, the evidence at hand does not favor his claim of self-defense.
The presence of unlawful aggression is a condition sine qua non. There can
be no self-defense, complete or incomplete, unless the victim has
committed an unlawful aggression against the person defending himself. In
the present case, the records show that the victim was lying in a prone
position on the ground - bleeding from the bullet wounds he sustained, and
possibly unconscious - when accused-appellant shot him in the head. The
aggression that was initially begun by the victim already ceased when
accused-appellant attacked him. From that moment, there was no longer
any danger to his life.
The Court appreciated the incomplete justifying circumstance of fulfillment
of a duty or lawful exercise of a right. Under Art. 69 of RPC, "a penalty lower
by one or two degrees than that prescribed by law shall be imposed if the
deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in
the several cases mentioned in Arts. 11 and 12, provided that the majority
of such conditions be present.
The Court likewise credited Ulep with the mitigating circumstance of
voluntary surrender. The police blotter of Kidapawan Municipal Police
Station shows that immediately after killing Wapili, accused-appellant
reported to the police headquarters and voluntarily surrendered himself

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

[G.R. No. 150647. September 29, 2004]

Version of the Prosecution

ROWENO POMOY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

The Office of the Solicitor General (OSG) presented respondents version of the facts
as follows:

DECISION
PANGANIBAN, J.:

Tomas Balboa was a master teacher of the Concepcion College of Science and
Fisheries in Concepcion, Iloilo.

Well-established is the principle that the factual findings of the trial court, when
affirmed by the Court of Appeals, are binding on the highest court of the
land. However, when facts are misinterpreted and the innocence of the accused
depends on a proper appreciation of the factual conclusions, the Supreme Court may
conduct a review thereof.In the present case, a careful reexamination convinces this
Court that an accident caused the victims death. At the very least, the testimonies
of the credible witnesses create a reasonable doubt on appellants guilt. Hence, the
Court must uphold the constitutional presumption of innocence.

On January 4, 1990, about 7:30 in the morning, some policemen arrived at

the Concepcion College to arrest Balboa, allegedly in connection with a robbery
which took place in the municipality in December 1989. With the arrest effected,
Balboa and the policemen passed by the Concepcion Elementary School where his
wife, Jessica, was in a get-together party with other School Administrators. When his
wife asked him, Why will you be arrested? [H]e answered [Even I] do not know why I
am arrested.That is why I am even going there in order to find out the reason for my
arrest.

The Case

Balboa was taken to the Headquarters of the already defunct 321 st Philippine
Constabulary Company at Camp Jalandoni, Sara,Iloilo. He was detained in the jail
thereat, along with Edgar Samudio, another suspect in the robbery case.

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to
set aside the February 28, 2001 Decision[2] and the October 30, 2001 Resolution[3] of
the Court of Appeals (CA) in CAGR CR No. 18759. The CA affirmed, with
modifications, the March 8, 1995 judgment[4] of the Regional Trial Court (RTC)
[5]
of Iloilo City (Branch 25) in Criminal Case No. 36921, finding Roweno Pomoy guilty
of the crime of homicide. The assailed CA Decision disposed as follows:
WHEREFORE, premises considered, MODIFIED as to penalty in the sense that the
[Petitioner] ROWENO POMOY is sentenced to suffer an indeterminate prison term of
six (6) years, four (4) months and ten (10) days of prision mayor minimum, as
minimum, to fourteen (14) years eight (8) months and twenty (20) days of reclusion
temporal medium, as maximum, the decision appealed from is hereby AFFIRMED in
all other respects.[6]
The challenged CA Resolution denied petitioners Motion for Reconsideration.
Petitioner was charged in an Information worded thus:
That on or about the 4th day of January 1990, in the Municipality of Sara, Province of
Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with his .45 service pistol, with deliberate intent and decided
purpose to kill, and without any justifiable cause or motive, did then and there
willfully, unlawfully and feloniously assault, attack and shoot one TOMAS BALBOA
with the service pistol he was then provided, inflicting upon the latter gunshot
wounds on the vital parts of his body, which directly caused the death of said victim
thereafter.[7]
The Facts

Later that day, about a little past 2 oclock in the afternoon, petitioner, who is a
police sergeant, went near the door of the jail where Balboa was detained and
directed the latter to come out, purportedly for tactical interrogation at the
investigation room, as he told Balboa: Lets go to the investigation room. The
investigation room is at the main building of the compound where the jail is
located. The jail guard on duty, Nicostrado Estepar, opened the jail door and walked
towards the investigation room.
At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster which was
hanging by the side of his belt. The gun was fully embedded in its holster, with only
the handle of the gun protruding from the holster.
When petitioner and Balboa reached the main building and were near the
investigation room, two (2) gunshots were heard. When the source of the shots was
verified, petitioner was seen still holding a .45 caliber pistol, facing Balboa, who was
lying in a pool of blood, about two (2) feet away. When the Commanding Officer of
the Headquarters arrived, he disarmed petitioner and directed that Balboa be
brought to the hospital. Dr. Palma (first name not provided) happened to be at the
crime scene as he was visiting his brother in the Philippine Constabulary. When Dr.
Palma examined Balboa, he (Dr. Palma) said that it was unnecessary to bring Balboa
to the hospital for he was dead.
Upon the request of Mrs. Jessica Balboa, the wife of the deceased, Dr. Ricardo
Jabonete, the medico-legal officer of the National Bureau of Investigation, Region
VI, Iloilo City, conducted an autopsy on the remains of Tomas Balboa. The following
were his findings:

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

Pallor, integumens and nailbeds.
Wound, gunshot: (1) ENTRANCE, downwards and medially, edges, modified by
sutures, surrounded by abrasion collar, 0.6 cm. In its chest, left side, 10.0 cms. from
anterior midline, 121.0 cms. From left heel, directed medially backwards from left to
right, penetrating chest wall thru 5th intercostals space into thoracic cavity,
perforating thru and thru, upper lobe, left lung, lacerating left ventricular wall
causing punched out fracture, 8th thoracic vertebra and make an EXIT, stallate in
shape, 1.0 x 0.8 cm. Edges, modified by sutures, back, right side, 8.0 cms. From
posterior midline, 117.0 cms. From right heel (2) ENTRANCE, ovaloid, oriented
medially downwards, edges sutured, 0.7 cm. on its widest portion, at infero-medial
border, hypochondriac region, left side, 4.0 cms. From anterior midline, 105.0 cms.
From left heel, directed backwards, laterally wall into penetrating abdominal cavity,
perforating thru and thru, stomach, head of the pancreas and mesentery, make an
exit, ovalid, 1.0 x 0.8 cm., oriented medially upwards, edges, sutured, back, left side,
level of 9th intercostal space, 4.5 cms. From posterior midline, 110.0 cms. From left
heel. x x x.
CAUSE OF DEATH: Hemorrhage, massive secondary to gunshot wounds on chest and
abdomen.
REMARKS: Body previously embalmed and autopsied.
Dr. Jaboneta testified that the two (2) wounds he found on x x x Balboas body were
gunshot wounds. The entrance of [W]ound No. 1 was to the left side of the chest
about the left nipple and exited to the right side of the back. Its trajectory was
backwards then downwards from left to right. As to the possible position of the
assailant, Dr. Jaboneta opined that the nozzle of the gun was probably in front of the
victim and was more to the left side, and the gun must have been a little bit higher
than the entrance wound. Wound No. 2 was located immediately below the arch of
the ribs, left side. Its direction was backwards and laterally upwards. Dr. Jaboneta
estimated that when it was inflicted, the assailant must have pointed the guns
nozzle to the right side front of the victim. The distance between the entrance points
of wounds No. 1 and No. 2 was found to be about 16.0 centimeters. [8]
Version of the Defense
The Petition adopted the narration of facts in the assailed CA Decision, which in turn
culled them from the trial court. The RTC summarized the testimonies of Defense
Witnesses Erna Basa, the lone eyewitness to the incident; Eden Legaspi; Dr.
Salvador Mallo Jr.; and petitioner himself, as follows:
Erna Basa:
x x x [O]n January 4, 1990, she was working in their office in the camp up to the
afternoon; at about past 2 oclock that afternoon while working on the backlogs, she
heard some noise and exchange of words which were not clear, but it seemed there

was growing trouble; she opened the door to verify and saw Roweno Pomoy and
Tomas Balboa grappling for the possession of the gun; she was inside the room and
one meter away from the door; Pomoy and Balboa while grappling were two to three
meters away from the door; the grappling happened so fast and the gun of Pomoy
was suddenly pulled out from its holster and then there was explosion; she was not
certain who pulled the gun. x x x.
Eden Legaspi:
x x x [A]s early as 1:30 oclock in the afternoon of January 4, 1990 she was inside the
investigation room of the PC at Camp Jalandoni, Sara, Iloilo; at about 2 oclock that
same afternoon while there inside, she heard a commotion outside and she
remained seated on the bench; when the commotion started they were seated on
the bench and after the commotion that woman soldier (referring to Erna Basa)
stood up and opened the door and she saw two persons grappling for the possession
of a gun and immediately two successive shots rang out; she did not leave the place
where she was seated but she just stood up; after the shots, one of the two men fall
down x x x.
Accused-petitioner Roweno Pomoy:
He is 30 years old and a PNP member of the Iloilo Provincial Mobile Force Company
then attached to the defunct 321st PC Company; he was one of the investigators of
their outfit; about 2 oclock or past that time of January 4, 1990 he got Tomas Balboa
from their stockade for tactical interrogation; as he was already holding the door
knob of their investigation room and about to open and enter it, all of a sudden he
saw Tomas Balboa approach him and take hold or grab the handle of his gun; Tomas
Balboa was a suspect in a robbery case who was apprehended by the police of
Concepcion and then turned over to them (PC) and placed in their stockade; he
asked the sergeant of the guard to let Balboa out of the stockade for interrogation;
from the stockade with Balboa walking with him, he had his .45 caliber pistol placed
in his holster attached to his belt on his waist; then as he was holding the doorknob
with his right hand to open the door, the victim, who was two meters away from
him, suddenly approached him and grabbed his gun, but all of a sudden he held the
handle of his gun with his left hand; he released his right hand from the doorknob
and, with that right hand, he held the handle of his gun; Tomas Balboa was not able
to take actual hold of the gun because of his efforts in preventing him (Balboa) from
holding the handle of his gun; he used his left hand to parry the move of Balboa;
after he held the handle of his gun with his right hand, in a matter of seconds, he felt
somebody was holding his right hand; he and Balboa grappled and in two or three
seconds the gun was drawn from its holster as both of them held the gun; more
grappling followed and five seconds after the gun was taken from its holster it fired,
the victim was to his right side when the attempt to grab his gun began and was still
to his right when the gun was drawn from its holster until it fired, as they were still
grappling or wrestling; his gun was already loaded in its chamber and cocked when
he left his house, and it was locked when it fired; during the grappling he used his
left hand to prevent Balboa from holding his gun, while the victim used his right
hand in trying to reach the gun; after the gun fired, they were separated from each
other and Balboa fell; he is taller than Balboa though the latter was bigger in build;

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

he cannot say nor determine who of them was stronger; after Balboa fell, Sgt. Alag
shouted saying stop that and he saw Sgt. Alag approaching; sometime after, Capt.
Rolando Maclang, their commanding officer, came, got his gun, and said that the
case be investigated as to what really happened. He said that when his gun was put
in its holster only its handle protrudes or comes out from it.
Upon cross-examination, he said that Balboa was a suspect in a robbery case that
happened during the first week of December, 1989; he was the one who filed that
case in the town of San Dionisio and that case involves other persons who were also
detained; before January 4, 1990 he had also the chance to invite and interrogate
Balboa but who denied any robbery case; x x x [I]t was after he took his lunch that
day when Capt. Maclang called him to conduct the interrogation; when he took
Balboa from the stockade he did not tell him that he (Balboa) was to be investigated
in the investigation room which was housed in the main building which is fifty
meters, more or less, from the stockade, likewise houses the administrative office,
the office of the commanding officer, officer of the operations division and that of
the signal division; his gun was in its holster when the victim tried to grab it (gun);
from the time he sensed that the victim tried to grab his gun, he locked the victim;
the hand of the victim was on top of his hand and he felt the victim was attempting
to get his gun; that the entire handle of his gun was exposed when placed inside its
holster; he cannot tell whether the victim, while struggling with him, was able to
hold any portion of his gun from the tip of its barrel to the point where its hammer is
located; during the incident his gun was fully loaded and cocked; Sgt. Alag did not
approach, but just viewed them and probably reported the incident to their
commanding officer; he was not able to talk to Sgt. Alag as he (Pomoy) was not in
his right sense; when his commanding officer came some five to ten minutes later
and took away his gun he did not tell him anything.
Dr. Salvador Mallo Jr.
He is the Rural Health Physician of Sara who conducted the autopsy on the cadaver
of Tomas Balboa that afternoon of January 4, 1990; in his autopsy findings respecting
which he made an autopsy report he said he found two entrance wounds on the
victim, the first on the left chest with trajectory medially downward, while the
second one is on the left side of the stomach with trajectory somewhat going
upward; at the same time of his examination he saw this victim to be wearing a
light-colored T-shirt and a jacket; other than the T-shirt worn by the victim, he did
not see or find any powder burns and marks and that those dotted marks in the Tshirt were believed by him to be powder burns as they look like one; he also found a
deformed slug in the pocket of the jacket of the victim. [9]
Ruling of the Court of Appeals
The CA anchored its Decision on the following factual findings: 1) the victim was not
successful in his attempts to grab the gun, since petitioner had been in control of
the weapon when the shots were fired; 2) the gun had been locked prior to the
alleged grabbing incident and immediately before it went off; it was petitioner who
released the safety lock before he deliberately fired the fatal shots; and 3) the

location of the wounds found on the body of the deceased did not support the
assertion of petitioner that there had been a grappling for the gun.
To the appellate court, all the foregoing facts discredited the claim of petitioner that
the death of Balboa resulted from an accident. Citing People v. Reyes,[10] the CA
maintained that a revolver is not prone to accidental firing if it were simply handed
over to the deceased as appellant claims because of the nature of its mechanism,
unless it was already first cocked and pressure was exerted on the trigger in the
process of allegedly handing it over. If it were uncocked, then considerable pressure
had to be applied on the trigger to fire the revolver. Either way, the shooting of the
deceased must have been intentional because pressure on the trigger was
necessary to make the gun fire.[11]
Moreover, the appellate court obviously concurred with this observation of the OSG:
[Petitioners] theory of accident would have been easier to believe had the victim
been shot only once. In this case, however, [petitioner] shot the victim not only once
but twice, thereby establishing [petitioners] determined effort to kill the victim. By
any stretch of the imagination, even assuming without admitting that the first shot
was accidental, then it should not have been followed by another shot on another
vital part of the body. The fact that [petitioner] shot the victim two (2) times and was
hit on two different and distant parts of the body, inflicted from two different
locations or angles, means that there was an intent to cause the victims death,
contrary to [petitioners] pretensions of the alleged accidental firing. It is an oftrepeated principle that the location, number and gravity of the wounds inflicted on
the victim have a more revealing tale of what actually happened during the
incident. x x x.[12]
Furthermore, the CA debunked the alternative plea of self-defense. It held that
petitioner had miserably failed to prove the attendance of unlawful aggression, an
indispensable element of this justifying circumstance.
While substantially affirming the factual findings of the RTC, the CA disagreed with
the conclusion of the trial court that the aggravating circumstance of abuse of public
position had attended the commission of the crime. Accordingly, the penalty
imposed by the RTC was modified by the appellate court in this manner:
x x x [F]or public position to be appreciated as an aggravating circumstance, the
public official must use his influence, prestige and ascendancy which his office gives
him in realizing his purpose. If the accused could have perpetrated the crime without
occupying his position, then there is no abuse of public position. (People vs. Joyno,
304 SCRA 655, 670). In the instant case, there is no showing that the [petitioner]
had a premeditated plan to kill the victim when the former fetched the latter from
the stockade, thus, it cannot be concluded that the public position of the [petitioner]
facilitated the commission of the crime. Therefore, the trial courts finding that the
said aggravating circumstance that [petitioner] took advantage of his public position
to commit the crime cannot be sustained. Hence, there being no aggravating and no
mitigating circumstance proved, the maximum of the penalty shall be taken from

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

the medium period of reclusion temporal, a penalty imposable for the crime of
homicide. x x x.[13]

In sum, the foregoing issues can be narrowed down to two: First, whether the
shooting of Tomas Balboa was the result of an accident; and second, whether
petitioner was able to prove self-defense.

Hence, this Petition.[14]

The Courts Ruling
Issues
The Petition is meritorious.
In his Memorandum, petitioner submitted the following issues for the Courts
consideration:
I. The Court of Appeals committed serious and reversible error in affirming
petitioners conviction despite the insufficiency of the prosecutions evidence to
convict the petitioner, in contrast to petitioners overwhelming evidence to support
his theory/defense of accident.
II. The Court of Appeals committed grave and reversible error in affirming the
conviction of the petitioner on a manifestly mistaken inference that when the gun
fired, the petitioner was in full control of the handle of the gun, because what the
testimonies of disinterested witnesses and the petitioner reveal was that the gun
fired while petitioner and Balboa were both holding the gun in forceful efforts to
wrest the gun from each other.
III. The Court of Appeals gravely erred in affirming the solicitor generals observation
that the fact that petitioner shot the victim twice establishes petitioners determined
effort to kill the victim.
IV. The appellate court committed serious misapprehension of the evidence
presented when it ruled that the trajectory of the wounds was front-to-back belying
the allegation of petitioner that he and the victim were side-by-side each other when
the grappling ensued.
V. The Court of Appeals failed to discern the real import of petitioners reaction to the
incident when it stated that the dumbfounded reaction of petitioner after the
incident strongly argues against his claim of accidental shooting.
VI. The appellate court committed grave error when it disregarded motive or lack of
it in determining the existence of voluntariness and intent on the part of petitioner
to shoot at the victim when the same was put in serious doubt by the evidence
presented.

First Issue:
Accidental Shooting
Timeless is the legal adage that the factual findings of the trial court, when affirmed
by the appellate court, are conclusive.[16] Both courts possess time-honored
expertise in the field of fact finding. But where some facts are misinterpreted or
some details overlooked, the Supreme Court may overturn the erroneous
conclusions drawn by the courts a quo. Where, as in this case, the facts in dispute
are crucial to the question of innocence or guilt of the accused, a careful factual
reexamination is imperative.
Accident is an exempting circumstance under Article 12 of the Revised Penal Code:
Article 12. Circumstances which exempt from criminal liability. The following are
exempt from criminal liability:
xxxxxxxxx
4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intent of causing it.
Exemption from criminal liability proceeds from a finding that the harm to the victim
was not due to the fault or negligence of the accused, but to circumstances that
could not have been foreseen or controlled.[17] Thus, in determining whether an
accident attended the incident, courts must take into account the dual standards of
lack of intent to kill and absence of fault or negligence. This determination inevitably
brings to the fore the main question in the present case: was petitioner in control of
the .45 caliber pistol at the very moment the shots were fired?
Petitioner Not in Control

VII. The Court of Appeals was mistaken in ruling that the defense of accident and
self-defense are inconsistent.

of the Gun When It Fired

VIII. The Court of Appeals obviously erred in the imposition of the penalties and
damages.[15]

The records show that, other than petitioner himself, it was Erna Basa who
witnessed the incident firsthand. Her account, narrated during cross-examination,
detailed the events of that fateful afternoon of January 4, 1990 as follows:

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

ATTY. TEODOSIO:
Q. You said that while you were inside the investigation room you heard a
commotion. That commotion which you heard, did you hear any shouting as part of
that commotion which you heard?

A. I saw two hands on the handle of the gun in its holster, the hand of Sir
Balboa and Sgt. Pomoy.
COURT:
Q. At that precise moment the gun was still in its holster?

A. Moderately there was shouting and their dialogue was not clear. It could not be
understood.

A. When I took a look the gun was still in its holster with both hands grappling for
the possession of the gun.

Q. Did you hear any voices as part of that commotion?

Q. How many hands did you see?
A. No, sir.
A. Two.
Q. From the time you entered the investigation room you did not hear any voice
while you were inside the investigation room as part of that commotion?
A. There was no loud voice and their conversation could not be clarified. They were
talking somewhat like murmuring or in a low voice but there was a sort of trouble in
their talks.
COURT:
Q. Was there a sort of an exchange of words in their conversation?
A. Yes, sir.
xxxxxxxxx

Q. One hand of Sgt. Pomoy and one hand is that of the victim?
A. Yes, sir.
COURT:
Proceed.
ATTY TEODOSIO:
Q. Which hand of Sgt. Pomoy did you see holding the gun?
A. Right hand of Sgt. Pomoy.

Q. When you opened the door, you saw Sgt. Pomoy and Mr. Balboa the deceased in
this case? Am I correct?

Q. And when you see that right hand of Sgt. Pomoy, was it holding the gun?

A. Yes, sir.

A. The right hand of Sgt. Pomoy was here on the gun and Sir Balboas hand
was also there. Both of them were holding the gun.

Q. And when you saw Sgt. Pomoy was he holding a gun?

Q. Which part of the gun was the right hand of Sgt. Pomoy holding?

A. Not yet, the gun was still here. (Witness illustrating by pointing to her side) and I
saw both of them grappling for that gun.

A. The handle.

Q. Where was the gun at that time?

Q. And was he facing Tomas Balboa when he was holding the gun with his right
hand?

A. The gun was in its holster. (Witness illustrating by pointing to [her] side.)
Q. When you demonstrated you were according to you saw the hands holding the
gun. It was Sgt. Pomoy who was holding the gun with his right hand?

A. At first they were not directly facing each other.

Q. So later, they were facing each other?

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

A. They were not directly facing each other. Their position did not remain
steady as they were grappling for the possession of the gun force against
force.

Q. Did you see when the gun fired when they were grappling for its possession?

COURT:

Q. Did you see the gun fired when it fired for two times?

Q. What was the position of the victim when the shots were fired?

A. Yes, sir.

A. When I saw them they were already facing each other.

Q. Did you see the barrel of the gun when the gun fired?

Q. What was the distance?

A. I could not really conclude towards whom the barrel of the gun was
pointed to because the gun was turning.

A. Yes sir, I actually saw the explosion. It came from that very gun.

A. Very close to each other.

xxxxxxxxx
Q. How close?
Q. Could you tell the court who was holding the gun when the gun fired?
A. Very near each other.
Q. Could it be a distance of within one (1) foot?
A. Not exactly. They were close to each other in such a manner that their bodies
would touch each other.

A. When the gun exploded, the gun was already in the possession of Sgt. Pomoy. He
was the one holding the gun.
Q. After the gun went off, you saw the gun was already in the hand of Sgt. Pomoy?
A. Yes, sir.

Q. So the distance is less than one (1) foot when the gun fired?
A. One (1) foot or less when the explosions were heard.
Q. And they were directly facing each other?

Q. How soon after the gun went off when you saw the gun in the hand of Sgt.
Pomoy?
A. After Balboa had fallen and after they had separated themselves with each other,
it was then that I saw Sgt. Pomoy holding the gun.

A. Yes, sir.
COURT:
COURT:
Proceed.
Proceed.
ATTY. TEODOSIO:
Q. Were you able to see how the gun was taken out from its holster?
A. While they were grappling for the possession of the gun, gradually the
gun was released from its holster and then there was an explosion.

Q. When the gun was taken out from its holster, Sgt. Pomoy was the one holding the
handle of the gun? Am I correct?
A. Both of them were holding the handle of the gun.

Q. And when the gun fired the gun was on Tomas Balboa?
Q. So when the gun was still in its holster, two of them were holding the gun?
A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.

A. Yes sir, they were actually holding the gun, Sgt. Pomoy and Sir Balboa.

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

Q. It was the right hand of Sgt. Pomoy who was holding the handle of the gun as you
testified?
A. Yes, sir.
Q. Which hand of Balboa was holding the handle of the gun?
A. Left hand.
Q. At the time Balboa was holding the handle of the gun with his left hand, was he in
front of Sgt. Pomoy?

A. Still both of them were holding the handle of the gun.

Q. With the hand of Balboa still on the top of the hand of Sgt. Pomoy as what you
have previously said when the gun was in the holster of Sgt. Pomoy?
A. When the gun was pulled from its holster, I saw that Sgt. Pomoys right
hand was still on the handle of the gun with the left hand of Sir Balboa
over his right hand of Sgt. Pomoy, like this (witness illustrating by showing his
right hand with her left hand over her right hand as if holding something. The thumb
of the left hand is somewhat over the index finger of the right hand.)
COURT:

A. They had a sort of having their sides towards each other. Pomoys right and
Balboas left sides [were] towards each other. They were side by side at a closer
distance towards each other.

Which hand of the victim was used by him when the gun was already pulled out
form its holster and while the accused was holding the handle of the gun?

xxxxxxxxx

A. Left hand.

Q. It was actually Sgt. Pomoy who was holding the handle of the gun during that
time?

Q. So, he was still using the same left hand in holding a portion of the handle of the
gun up to the time when the gun was pulled out from its holster?

A. When I looked out it was when they were grappling for the possession of
the gun and the right hand of Sgt. Pomoy was holding the handle of the
gun.

A. Yes sir, the same left hand and that of Pomoy his right hand because the left hand
of Pomoy was used by him in parrying the right hand of Sir Balboa which is about to
grab the handle of the gun.

Q. When you saw them did you see what position of the handle of the gun was being
held by Tomas Balboa? The rear portion of the handle of the gun or the portion near
the trigger?

COURT:

A. When I looked at them it was the hand of Sgt. Pomoy holding the handle
of the gun with his right hand with the hand of Sir Balboa over the hand of
Pomoy, the same hand holding the gun.

Q. So in the process of grappling he was using his left hand in pushing the victim
away from him?
A. Yes, sir.
Q. What about the right hand of the victim, what was he doing with his right hand?

Q. It was in that position when the gun was removed from its holster?
A. When the gun pulled out from its holster, I was not able to notice clearly
anymore whose hand was holding the gun when I saw both their hands
were holding the gun.

A. The victim was trying to reach the gun with his right hand and Pomoy
was using his left hand to protect the victim from reaching the gun with
his right hand.
COURT:

Q. When you said this in [the] vernacular, Daw duha na sila nagakapot, what you
really mean?

Proceed.

A. Both of them were holding the gun.

ATTY. TEODOSIO:

Q. But Sgt. Pomoy still holding the handle of the gun?

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

Q. Did you say a while ago that Mr. Balboa was able to hold the barrel of
the gun of Sgt. Pomoy?

the scuffle, the safety lock could have been accidentally released and the shots
accidentally fired.

A. Yes, sir.

That there was not just one but two shots fired does not necessarily and conclusively
negate the claim that the shooting was accidental, as the same circumstance can
easily be attributed to the mechanism of the .45 caliber service gun. Petitioner, in
his technical description of the weapon in question, explained how the disputed
second shot may have been brought about:

Q. And that was at the time before the shots were fired?
A. Yes, he was able to hold the tip of the barrel of the gun using his right hand.
COURT:
Q. That was before the gun fired?
A. Yes, sir.[18]
The foregoing account demonstrates that petitioner did not have control of the gun
during the scuffle. The deceased persistently attempted to wrest the weapon from
him, while he resolutely tried to thwart those attempts. That the hands of both
petitioner and the victim were all over the weapon was categorically asserted by the
eyewitness. In the course of grappling for the gun, both hands of petitioner were
fully engaged -- his right hand was trying to maintain possession of the weapon,
while his left was warding off the victim. It would be difficult to imagine how, under
such circumstances, petitioner would coolly and effectively be able to release the
safety lock of the gun and deliberately aim and fire it at the victim.
It would therefore appear that there was no firm factual basis for the following
declaration of the appellate court: [Petitioner] admitted that his right hand was
holding the handle of the gun while the left hand of the victim was over his right
hand when the gun was fired. This declaration would safely lead us to the conclusion
that when the gun went off herein [petitioner] was in full control of the gun. [19]

x x x Petitioner also testified on cross-examination that a caliber .45 semi-automatic

pistol, when fired, immediately slides backward throwing away the empty shell and
returns immediately carrying again a live bullet in its chamber. Thus, the gun can, as
it did, fire in succession. Verily, the location of, and distance between the wounds
and the trajectories of the bullets jibe perfectly with the claim of the petitioner: the
trajectory of the first shot going downward from left to right thus pushing Balboas
upper body, tilting it to the left while Balboa was still clutching petitioners hand over
the gun; the second shot hitting him in the stomach with the bullet going upward of
Balboas body as he was falling down and releasing his hold on petitioners hand x x
x.[20]
Thus, the appellate courts reliance on People v. Reyes[21] was misplaced. In that
case, the Court disbelieved the accused who described how his gun had exploded
while he was simply handing it over to the victim. Here, no similar claim is being
made; petitioner has consistently maintained that the gun accidentally fired in the
course of his struggle with the victim. More significantly, the present case involves a
semi-automatic pistol, the mechanism of which is very different from that of a
revolver, the gun used in Reyes.[22]Unlike a revolver, a semi-automatic pistol, as
sufficiently described by petitioner, is prone to accidental firing when possession
thereof becomes the object of a struggle.
Alleged Grappling Not Negated

Release of the Guns Safety Lock and

by Frontal Location of Wounds

Firing of the Gun Both Accidental

On the basis of the findings of Dr. Jaboneta showing that the wounds of the
deceased were all frontal, the appellate court rejected petitioners claim that a
grappling for the weapon ever occurred. It held that if there was indeed a grappling
between the two, and that they had been side [by] side x x x each other, the
wounds thus inflicted could not have had a front-to-back trajectory which would lead
to an inference that the victim was shot frontally, as observed by Dr. Jaboneta. [23]

Petitioner testified that the .45 caliber service pistol was equipped with a safety lock
that, unless released, would prevent the firing of the gun. Despite this safety
feature, however, the evidence showed that the weapon fired and hit the victim -not just once, but twice. To the appellate court, this fact could only mean that
petitioner had deliberately unlocked the gun and shot at the victim. This conclusion
appears to be non sequitur.
It is undisputed that both petitioner and the victim grappled for possession of the
gun. This frenzied grappling for the weapon -- though brief, having been finished in a
matter of seconds -- was fierce and vicious. The eyewitness account amply
illustrated the logical conclusion that could not be dismissed: that in the course of

Ordinarily, the location of gunshot wounds is indicative of the positions of the parties
at the precise moment when the gun was fired. Their positions would in turn be
relevant to a determination of the existence of variables such as treachery,
aggression and so on.

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

In the factual context of the present case, however, the location of the wounds
becomes inconsequential. Where, as in this case, both the victim and the accused
were grappling for possession of a gun, the direction of its nozzle may continuously
change in the process, such that the trajectory of the bullet when the weapon fires
becomes unpredictable and erratic. In this case, the eyewitness account of that
aspect of the tragic scuffle shows that the parties positions were unsteady, and that
the nozzle of the gun was neither definitely aimed nor pointed at any particular
target. We quote the eyewitness testimony as follows:

down. When the gun went off the second time hitting Balboa, the trajectory of the
bullet in Balboas body was going upward because his upper body was pushed
downward twisting to the left. It was then that Balboa let go of his grip. On crossexamination, petitioner testified, what I noticed was that after successive
shots we separated from each other. This sequence of events is logical because
the protagonists were grappling over the gun and were moving very fast.x x x. [26]

Q. And when the gun fired the gun was on Tomas Balboa?

Elements of Accident

A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.

The elements of accident are as follows: 1) the accused was at the time performing
a lawful act with due care; 2) the resulting injury was caused by mere accident; and
3) on the part of the accused, there was no fault or no intent to cause the injury.
[27]
From the facts, it is clear that all these elements were present. At the time of the
incident, petitioner was a member -- specifically, one of the investigators -- of the
Philippine National Police (PNP) stationed at the Iloilo Provincial Mobile Force
Company. Thus, it was in the lawful performance of his duties as investigating officer
that, under the instructions of his superior, he fetched the victim from the latters cell
for a routine interrogation.

xxxxxxxxx
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of the gun was
pointed to because the gun was turning.[24]
xxxxxxxxx
Q And was he facing Tomas Balboa when he was holding the gun with his right
hand?

Presence of All the

Again, it was in the lawful performance of his duty as a law enforcer that petitioner
tried to defend his possession of the weapon when the victim suddenly tried to
remove it from his holster. As an enforcer of the law, petitioner was duty-bound to
prevent the snatching of his service weapon by anyone, especially by a detained
person in his custody.Such weapon was likely to be used to facilitate escape and to
kill or maim persons in the vicinity, including petitioner himself.

A At first, they were not directly facing each other.

Q So later, they were facing each other?
A They were not directly facing each other. Their position did not remain steady as
they were grappling for the possession of the gun force against force.[25]
In his Petition, this explanation is given by petitioner:
x x x. The Court of Appeals erred in concluding that Balboa was shot frontally. First,
because the position of the gun does not necessarily indicate the position of the
person or persons holding the gun when it fired. This is especially true when two
persons were grappling for the possession of the gun when it fired, as what exactly
transpired in this case. x x x.
[The] testimony clearly demonstrates that the petitioner was on the left side of the
victim during the grappling when the gun fired. The second wound was thus inflicted
this wise: when the first shot hit Balboa, his upper body was pushed downward
owing to the knocking power of the caliber .45 pistol. But he did not let go of his grip
of the hand of petitioner and the gun, Balboa pulling the gun down as he was going

Petitioner cannot be faulted for negligence. He exercised all the necessary

precautions to prevent his service weapon from causing accidental harm to others.
As he so assiduously maintained, he had kept his service gun locked when he left his
house; he kept it inside its holster at all times, especially within the premises of his
working area.
At no instance during his testimony did the accused admit to any intent to cause
injury to the deceased, much less kill him. Furthermore, Nicostrato Estepar, the
guard in charge of the detention of Balboa, did not testify to any behavior on the
part of petitioner that would indicate the intent to harm the victim while being
fetched from the detention cell.
The participation of petitioner, if any, in the victims death was limited only to acts
committed in the course of the lawful performance of his duties as an enforcer of the
law.The removal of the gun from its holster, the release of the safety lock, and the
firing of the two successive shots -- all of which led to the death of the victim -- were
sufficiently demonstrated to have been consequences of circumstances beyond the
control of petitioner. At the very least, these factual circumstances create serious
doubt on the latters culpability.

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

Petitioners Subsequent Conduct
Not Conclusive of Guilt
To both the trial and the appellate courts, the conduct of petitioner immediately
after the incident was indicative of remorse. Allegedly, his guilt was evident from the
fact that he was dumbfounded, according to the CA; was mum, pale and trembling,
according to the trial court. These behavioral reactions supposedly point to his guilt.
Not necessarily so. His behavior was understandable. After all, a minute earlier he
had been calmly escorting a person from the detention cell to the investigating
room; and, in the next breath, he was looking at his companions bloodied body. His
reaction was to be expected of one in a state of shock at events that had transpired
so swiftly and ended so regrettably.
Second Issue:
Self-Defense
Petitioner advanced self-defense as an alternative. Granting arguendo that he
intentionally shot Balboa, he claims he did so to protect his life and limb from real
and immediate danger.
Self-defense is inconsistent with the exempting circumstance of accident, in which
there is no intent to kill. On the other hand, self-defense necessarily contemplates a
premeditated intent to kill in order to defend oneself from imminent danger.
[28]
Apparently, the fatal shots in the instant case did not occur out of any conscious
or premeditated effort to overpower, maim or kill the victim for the purpose of selfdefense against any aggression; rather, they appeared to be the spontaneous and
accidental result of both parties attempts to possess the firearm.
Since the death of the victim was the result of an accidental firing of the service gun
of petitioner -- an exempting circumstance as defined in Article 12 of the Revised
Penal Code -- a further discussion of whether the assailed acts of the latter
constituted lawful self-defense is unnecessary.
WHEREFORE, the Petition is GRANTED and the assailed
Decision REVERSED. Petitioner is ACQUITTED.
No costs.
SO ORDERED.

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

G.R. No. 148431 July 28, 2005

CONTRARY TO LAW.4

SPO2 RUPERTO CABANLIG, Petitioners,

vs.
SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, Respondents.

Arraignment and Plea

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis,
Mercado and Esteban pleaded not guilty.

DECISION
Version of the Prosecution
CARPIO, J.:
The Case
This petition for review1 seeks to reverse the Decision2 of the Fifth Division of the
Sandiganbayan dated 11 May 1999 and Resolution3 dated 2 May 2001 affirming the
conviction of SPO2 Ruperto Cabanlig ("Cabanlig") in Criminal Case No. 19436 for
homicide. The Sandiganbayan sentenced Cabanlig to suffer the indeterminate
penalty of four months of arresto mayor as minimum to two years and four months
of prision correctional as maximum and to pay P50,000 to the heirs of Jimmy Valino
("Valino"). Cabanlig shot Valino after Valino grabbed the M16 Armalite of another
policeman and tried to escape from the custody of the police. The Sandiganbayan
acquitted Cabanligs co-accused, SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart
Abesamis ("Abesamis"), SPO2 Lucio Mercado ("Mercado") and SPO1 Rady Esteban
("Esteban").
The Charge
Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an
amended information that reads as follows:
That on or about September 28, 1992, in the Municipality of Penaranda, Province of
Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2
Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1 Rady S. Esteban, all public
officers being members of the Philippine National Police, conspiring and
confederating and mutually helping one another, with intent to kill, with treachery
and evident premeditation, taking advantage of nighttime and uninhabited place to
facilitate the execution of the crime, with use of firearms and without justifiable
cause, did then and there, wilfully, unlawfully and feloniously attack, assault and
shoot one Jimmy Valino, hitting him several times at the vital parts of his body,
thereby inflicting upon the latter, serious and mortal wounds which were the direct
and immediate cause of his death, which crime was committed by the accused in
relation to their office as members of the Philippine National Police of Penaranda,
Nueva Ecija, the deceased, who was then detained for robbery and under the
custody of the accused, having been killed while being taken to the place where he
allegedly concealed the effects of the crime, to the damage and prejudice of the
heirs of said victim, in such amount as may be awarded under the provisions of the
New Civil Code.

On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva

Ecija. Four days later or on 28 September 1992, the investigating authorities
apprehended three suspects: Jordan Magat ("Magat"), Randy Reyes ("Reyes") and
Valino. The police recovered most of the stolen items. However, a flower vase and a
small radio were still missing. Cabanlig asked the three suspects where these two
items were. Reyes replied that the items were at his house.
Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to
accompany him in retrieving the flower vase and radio. Cabanlig then brought out
Reyes and Magat from their cell, intending to bring the two during the retrieval
operation. It was at this point that Valino informed Cabanlig that he had moved the
vase and radio to another location without the knowledge of his two cohorts.
Cabanlig decided instead to bring along Valino, leaving behind Magat and Reyes.
Around 6:30 p.m., five fully armed policemen in uniform Cabanlig, Padilla, Mercado,
Abesamis and Esteban escorted Valino to Barangay Sinasahan, Nueva Ecija to
recover the missing flower vase and radio. The policemen and Valino were aboard a
police vehicle, an Isuzu pick-up jeep. The jeep was built like an ordinary jeepney. The
rear end of the jeep had no enclosure. A metal covering separated the drivers
compartment and main body of the jeep. There was no opening or door between the
two compartments of the jeep. Inside the main body of the jeep, were two long
benches, each of which was located at the left and right side of the jeep.
Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the
jeep. Esteban was right behind Abesamis at the left bench. Valino, who was not
handcuffed, was between Cabanlig and Mercado at the right bench. Valino was
seated at Cabanligs left and at Mercados right. Mercado was seated nearest to the
opening of the rear of the jeep.
Just after the jeep had crossed the Philippine National Railway bridge and while the
jeep was slowly negotiating a bumpy and potholed road, Valino suddenly grabbed
Mercados M16 Armalite and jumped out of the jeep. Valino was able to grab
Mercados M16 Armalite when Mercado scratched his head and tried to reach his
back because some flying insects were pestering Mercado. Mercado shouted "hoy!"
when Valino suddenly took the M16 Armalite. Cabanlig, who was then facing the rear
of the vehicle, saw Valinos act of taking away the M16 Armalite. Cabanlig acted
immediately. Without issuing any warning of any sort, and with still one foot on the
running board, Cabanlig fired one shot at Valino, and after two to three seconds,
Cabanlig fired four more successive shots. Valino did not fire any shot.

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

The shooting happened around 7:00 p.m., at dusk or "nag-aagaw ang dilim at
liwanag." Cabanlig approached Valinos body to check its pulse. Finding none,
Cabanlig declared Valino dead. Valino sustained three mortal wounds one at the
back of the head, one at the left side of the chest, and one at the left lower back.
Padilla and Esteban remained with the body. The other three policemen, including
Cabanlig, went to a funeral parlor.
The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao
("Lacanilao") of the Cabanatuan Police went to Barangay Sinasahan, Nueva Ecija to
investigate a case. Lacanilao met Mercado who gave him instructions on how to
settle the case that he was handling. During their conversation, Mercado related
that he and his fellow policemen "salvaged" (summarily executed) a person the
night before. Lacanilao asked who was "salvaged." Mercado answered that it was
"Jimmy Valino." Mercado then asked Lacanilao why he was interested in the identity
of the person who was "salvaged." Lacanilao then answered that "Jimmy Valino" was
his cousin. Mercado immediately turned around and left.

correccional, as maximum. He is further ordered to pay the heirs of Jimmy Valino the
amount of FIFTY THOUSAND (P50,000.00) PESOS, and the costs.
SO ORDERED.5
On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. ("Associate
Justice Badoy") dissented from the decision. Associate Justice Badoy pointed out that
there was imminent danger on the lives of the policemen when Valino grabbed the
"infallible Armalite"6 from Mercado and jumped out from the rear of the jeep. At a
distance of only three feet from Cabanlig, Valino could have sprayed the policemen
with bullets. The firing of a warning shot from Cabanlig was no longer necessary.
Associate Justice Badoy thus argued for Cabanligs acquittal.
In a vote of four to one, the Sandiganbayan affirmed the decision.7 The dispositive
portion of the Resolution reads:
WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED.8

Version of the Defense

Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an
act of self-defense and performance of duty. Mercado denied that he told Lacanilao
that he and his co-accused "salvaged" Valino. Cabanlig, Mercado, Abesamis, Padilla,
and Esteban denied that they conspired to kill Valino.
The Sandiganbayans Ruling
The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court
found no evidence that the policemen conspired to kill or summarily execute Valino.
Since Cabanlig admitted shooting Valino, the burden is on Cabanlig to establish the
presence of any circumstance that would relieve him of responsibility or mitigate the
offense committed.
The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a
stranger. The only defense that Cabanlig could properly invoke in this case is
fulfillment of duty. Cabanlig, however, failed to show that the shooting of Valino was
the necessary consequence of the due performance of duty. The Sandiganbayan
pointed out that while it was the duty of the policemen to stop the escaping
detainee, Cabanlig exceeded the proper bounds of performing this duty when he
shot Valino without warning.
The Sandiganbayan found no circumstance that would qualify the crime to murder.
Thus, the Sandiganbayan convicted Cabanlig only of homicide. The dispositive
portion of the decision reads:
WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA, MEINHART
CRUZ ABESAMIS, LUCIO LADIGNON MERCADO and RADY SALAZAR ESTEBAN are
hereby ACQUITTED of the crime charged. Accused RUPERTO CONCEPCION CABANLIG
is found GUILTY beyond reasonable doubt of the crime of Homicide and is hereby
sentenced to suffer the indeterminate sentence of FOUR (4) MONTHS of arresto
mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision

The Issues
Cabanlig raises the following issues in his Memorandum:
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF
FULFILLMENT OF DUTY PUT UP BY CABANLIG WAS INCOMPLETE
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT
INVOKE SELF-DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS ACTIONS
WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER
IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT OF P 50,000 TO THE
HEIRS OF VALINO9
The Courts Ruling
The petition has merit. We rule for Cabanligs acquittal.
Applicable Defense is Fulfillment of Duty
We first pass upon the issue of whether Cabanlig can invoke two or more justifying
circumstances. While there is nothing in the law that prevents an accused from
invoking the justifying circumstances or defenses in his favor, it is still up to the
court to determine which justifying circumstance is applicable to the circumstances
of a particular case.
Self-defense and fulfillment of duty operate on different principles.10 Self-defense is
based on the principle of self-preservation from mortal harm, while fulfillment of
duty is premised on the due performance of duty. The difference between the two

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

justifying circumstances is clear, as the requisites of self-defense and fulfillment of
duty are different.

fulfillment of duty is the aggressor, but his aggression is not unlawful, it being
necessary to fulfill his duty.18

The elements of self-defense are as follows:

While self-defense and performance of duty are two distinct justifying

circumstances, self-defense or defense of a stranger may still be relevant even if the
proper justifying circumstance in a given case is fulfillment of duty. For example, a
policemans use of what appears to be excessive force could be justified if there was
imminent danger to the policemans life or to that of a stranger. If the policeman
used force to protect his life or that of a stranger, then the defense of fulfillment of
duty would be complete, the second requisite being present.

a) Unlawful Aggression;
b) Reasonable necessity of the means employed to prevent or repel it;
c) Lack of sufficient provocation on the part of the person defending himself.11
On the other hand, the requisites of fulfillment of duty are:
1. The accused acted in the performance of a duty or in the lawful exercise of a right
or office;
2. The injury caused or the offense committed be the necessary consequence of the
due performance of duty or the lawful exercise of such right or office.12
A policeman in the performance of duty is justified in using such force as is
reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily
harm.13 In case injury or death results from the policemans exercise of such force,
the policeman could be justified in inflicting the injury or causing the death of the
offender if the policeman had used necessary force. Since a policemans duty
requires him to overcome the offender, the force exerted by the policeman may
therefore differ from that which ordinarily may be offered in selfdefense.14 However, a policeman is never justified in using unnecessary force or in
treating the offender with wanton violence, or in resorting to dangerous means when
the arrest could be affected otherwise.15
Unlike in self-defense where unlawful aggression is an element, in performance of
duty, unlawful aggression from the victim is not a requisite. In People v. Delima,16 a
policeman was looking for a fugitive who had several days earlier escaped from
prison. When the policeman found the fugitive, the fugitive was armed with a
pointed piece of bamboo in the shape of a lance. The policeman demanded the
surrender of the fugitive. The fugitive lunged at the policeman with his bamboo
lance. The policeman dodged the lance and fired his revolver at the fugitive. The
policeman missed. The fugitive ran away still holding the bamboo lance. The
policeman pursued the fugitive and again fired his revolver, hitting and killing the
fugitive. The Court acquitted the policeman on the ground that the killing was done
in the fulfillment of duty.
The fugitives unlawful aggression in People v. Delima had already ceased when the
policeman killed him. The fugitive was running away from the policeman when he
was shot. If the policeman were a private person, not in the performance of duty,
there would be no self-defense because there would be no unlawful aggression on
the part of the deceased.17 It may even appear that the public officer acting in the

In People v. Lagata,19 a jail guard shot to death a prisoner whom he thought was
attempting to escape. The Court convicted the jail guard of homicide because the
facts showed that the prisoner was not at all trying to escape. The Court declared
that the jail guard could only fire at the prisoner in self-defense or if absolutely
necessary to avoid the prisoners escape.
In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the
performance of duty as policemen when they escorted Valino, an arrested robber, to
retrieve some stolen items. We uphold the finding of the Sandiganbayan that there
is no evidence that the policemen conspired to kill or summarily execute Valino. In
fact, it was not Valino who was supposed to go with the policemen in the retrieval
operations but his two other cohorts, Magat and Reyes. Had the policemen staged
the escape to justify the killing of Valino, the M16 Armalite taken by Valino would not
have been loaded with bullets.20 Moreover, the alleged summary execution of
Valino must be based on evidence and not on hearsay.
Undoubtedly, the policemen were in the legitimate performance of their duty when
Cabanlig shot Valino. Thus, fulfillment of duty is the justifying circumstance that is
applicable to this case. To determine if this defense is complete, we have to examine
if Cabanlig used necessary force to prevent Valino from escaping and in protecting
himself and his co-accused policemen from imminent danger.
Fulfillment of Duty was Complete, Killing was Justified
The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty
was found to be incomplete. The Sandiganbayan believed that Cabanlig "exceeded
the fulfillment of his duty when he immediately shot Valino without issuing a warning
so that the latter would stop."21
We disagree with the Sandiganbayan.
Certainly, an M16 Armalite is a far more powerful and deadly weapon than the
bamboo lance that the fugitive had run away with in People v. Delima. The
policeman in People v. Delima was held to have been justified in shooting to death
the escaping fugitive because the policeman was merely performing his duty.
In this case, Valino was committing an offense in the presence of the policemen
when Valino grabbed the M16 Armalite from Mercado and jumped from the jeep to
escape. The policemen would have been justified in shooting Valino if the use of

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

force was absolutely necessary to prevent his escape.22 But Valino was not only an
escaping detainee. Valino had also stolen the M16 Armalite of a policeman. The
policemen had the duty not only to recapture Valino but also to recover the loose
firearm. By grabbing Mercados M16 Armalite, which is a formidable firearm, Valino
had placed the lives of the policemen in grave danger.
Had Cabanlig failed to shoot Valino immediately, the policemen would have been
sitting ducks. All of the policemen were still inside the jeep when Valino suddenly
grabbed the M16 Armalite. Cabanlig, Mercado and Esteban were hemmed in inside
the main body of the jeep, in the direct line of fire had Valino used the M16 Armalite.
There would have been no way for Cabanlig, Mercado and Esteban to secure their
safety, as there were no doors on the sides of the jeep. The only way out of the jeep
was from its rear from which Valino had jumped. Abesamis and Padilla who were in
the drivers compartment were not aware that Valino had grabbed Mercados M16
Armalite. Abesamis and Padilla would have been unprepared for Valinos attack.
By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino
certainly did not intend merely to escape and run away as far and fast as possible
from the policemen. Valino did not have to grab the M16 Armalite if his sole
intention was only to flee from the policemen. If he had no intention to engage the
policemen in a firefight, Valino could simply have jumped from the jeep without
grabbing the M16 Armalite. Valinos chances of escaping unhurt would have been far
better had he not grabbed the M16 Armalite which only provoked the policemen to
recapture him and recover the M16 Armalite with greater vigor. Valinos act of
grabbing the M16 Armalite clearly showed a hostile intention and even constituted
unlawful aggression.
Facing imminent danger, the policemen had to act swiftly. Time was of the essence.
It would have been foolhardy for the policemen to assume that Valino grabbed the
M16 Armalite merely as a souvenir of a successful escape. As we have pointed out
in Pomoy v. People23:
Again, it was in the lawful performance of his duty as a law enforcer that petitioner
tried to defend his possession of the weapon when the victim suddenly tried to
remove it from his holster. As an enforcer of the law, petitioner was duty-bound to
prevent the snatching of his service weapon by anyone, especially by a detained
person in his custody. Such weapon was likely to be used to facilitate escape and to
kill or maim persons in the vicinity, including petitioner himself.
The Sandiganbayan, however, ruled that despite Valinos possession of a deadly
firearm, Cabanlig had no right to shoot Valino without giving Valino the opportunity
to surrender. The Sandiganbayan pointed out that under the General Rules of
Engagement, the use of force should be applied only as a last resort when all other
peaceful and non-violent means have been exhausted. The Sandiganbayan held that
only such necessary and reasonable force should be applied as would be sufficient
to conduct self-defense of a stranger, to subdue the clear and imminent danger
posed, or to overcome resistance put up by an offender.
The Sandiganbayan had very good reasons in steadfastly adhering to the policy that
a law enforcer must first issue a warning before he could use force against an
offender. A law enforcers overzealous performance of his duty could violate the

rights of a citizen and worse cost the citizens life. We have always maintained that
the judgment and discretion of public officers, in the performance of their duties,
must be exercised neither capriciously nor oppressively, but within the limits of the
law.24 The issuance of a warning before a law enforcer could use force would
prevent unnecessary bloodshed. Thus, whenever possible, a law enforcer should
employ force only as a last resort and only after issuing a warning.
However, the duty to issue a warning is not absolutely mandated at all times and at
all cost, to the detriment of the life of law enforcers. The directive to issue a warning
contemplates a situation where several options are still available to the law
enforcers. In exceptional circumstances such as this case, where the threat to the
life of a law enforcer is already imminent, and there is no other option but to use
force to subdue the offender, the law enforcers failure to issue a warning is
excusable.
In this case, the embattled policemen did not have the luxury of time. Neither did
they have much choice. Cabanligs shooting of Valino was an immediate and
spontaneous reaction to imminent danger. The weapon grabbed by Valino was not
just any firearm. It was an M16 Armalite.
The M16 Armalite is an assault rifle adopted by the United Sates ("US") Army as a
standard weapon in 1967 during the Vietnam War.25 The M16 Armalite is still a
general-issue rifle with the US Armed Forces and US law enforcement
agencies.26 The M16 Armalite has both semiautomatic and automatic
capabilities.27 It is 39 inches long, has a 30-round magazine and fires high-velocity .
223-inch (5.56-mm) bullets.28 The M16 Armalite is most effective at a range of 200
meters29 but its maximum effective range could extend as far as 400 meters.30 As
a high velocity firearm, the M16 Armalite could be fired at close range rapidly or with
much volume of fire.31 These features make the M16 Armalite and its variants well
suited for urban and jungle warfare.32
The M16 Armalite whether on automatic or semiautomatic setting is a lethal
weapon. This high-powered firearm was in the hands of an escaping detainee, who
had sprung a surprise on his police escorts bottled inside the jeep. A warning from
the policemen would have been pointless and would have cost them their lives.
For what is the purpose of a warning? A warning is issued when policemen have to
identify themselves as such and to give opportunity to an offender to surrender. A
warning in this case was dispensable. Valino knew that he was in the custody of
policemen. Valino was also very well aware that even the mere act of escaping could
injure or kill him. The policemen were fully armed and they could use force to
recapture him. By grabbing the M16 Armalite of his police escort, Valino assumed
the consequences of his brazen and determined act. Surrendering was clearly far
from Valinos mind.
At any rate, Valino was amply warned. Mercado shouted "hoy" when Valino grabbed
the M16 Armalite. Although Cabanlig admitted that he did not hear Mercado shout
"hoy", Mercados shout should have served as a warning to Valino. The verbal
warning need not come from Cabanlig himself.

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right

The records also show that Cabanlig first fired one shot. After a few seconds,
Cabanlig fired four more shots. Cabanlig had to shoot Valino because Valino at one
point was facing the police officers. The exigency of the situation warranted a quick
response from the policemen.

3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back
above the left lumbar. The left lung is collapsed and the liver is lacerated. Particles
of lead [were] recovered in the liver tissues. No wound of exit.
Cause of Death:

According to the Sandiganbayan, Valino was not turning around to shoot because
two of the three gunshot wounds were on Valinos back. Indeed, two of the three
gunshot wounds were on Valinos back: one at the back of the head and the other at
the left lower back. The Sandiganbayan, however, overlooked the location of the
third gunshot wound. It was three inches below the left clavicle or on the left top
most part of the chest area based on the Medico Legal Sketch showing the
entrances and exits of the three gunshot wounds.33
The Autopsy Report34 confirms the location of the gunshot wounds, as follows:
GUNSHOT WOUNDS modified by embalming.
1. ENTRANCE ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance,
4.0 x 3.0 cms.; located at the right postauricular region, 5.5 cms. behind and 1.5
cms. above the right external auditory meatus, directed forward downward
fracturing the occipital bone, lacerating the right occipital portion of the brain and
fracturing the right cheek bone and making an EXIT wound, 1.5 x 2.0 cms. located
on right cheek, 4.0 cms. below and 3.0 cms.. in front of right external auditory
meatus.
2. ENTRANCE ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the
anterior median line, 136.5 cms. from the left heel directed backward, downward
and to the right, involving soft tissues, fracturing the 3rd rib, left, lacerating the left
upper lobe and the right lower lobe and finally making an EXIT wound at the back,
right side, 1.4 x 0.8 cms., 19.0 cms. from the posterior median line and 132.0 cms.
from the right heel and grazing the medial aspect of the right arm.
3. ENTRANCE ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the
posterior median line; 119.5 cms. from the left heel; directed forward, downward
involving the soft tissues, lacerating the liver; and bullet was recovered on the right
anterior chest wall, 9.0 cms. form the anterior median line, 112.0 cms. from the right
heel.
The Necropsy Report35 also reveals the following:
1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the
back of the head. The left parietal bone is fractured. The left temporal bone is also
fractured. A wound of exit measuring 2 cms X 3 cms in size is located at the left
temporal aspect of the head.
2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the
chest about three inches below the left clavicle. The wound is directed medially and
made an exit wound at the right axilla measuring 2 X 2 cms in size.

Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

The doctors who testified on the Autopsy36 and Necropsy37 Reports admitted that
they could not determine which of the three gunshot wounds was first inflicted.
However, we cannot disregard the significance of the gunshot wound on Valinos
chest. Valino could not have been hit on the chest if he were not at one point facing
the policemen.
If the first shot were on the back of Valinos head, Valino would have immediately
fallen to the ground as the bullet from Cabanligs M16 Armalite almost shattered
Valinos skull. It would have been impossible for Valino to still turn and face the
policemen in such a way that Cabanlig could still shoot Valino on the chest if the first
shot was on the back of Valinos head.
The most probable and logical scenario: Valino was somewhat facing the policemen
when he was shot, hence, the entry wound on Valinos chest. On being hit, Valino
could have turned to his left almost falling, when two more bullets felled Valino. The
two bullets then hit Valino on his lower left back and on the left side of the back of
his head, in what sequence, we could not speculate on. At the very least, the
gunshot wound on Valinos chest should have raised doubt in Cabanligs favor.
Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis,
Mercado and Esteban are guilty only of gross negligence. The policemen transported
Valino, an arrested robber, to a retrieval operation without handcuffing Valino. That
no handcuffs were available in the police precinct is a very flimsy excuse. The
policemen should have tightly bound Valinos hands with rope or some other sturdy
material. Valinos cooperative demeanor should not have lulled the policemen to
complacency. As it turned out, Valino was merely keeping up the appearance of good
behavior as a prelude to a planned escape. We therefore recommend the filing of an
administrative case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for
gross negligence.
WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No.
19436 convicting accused RUPERTO CONCEPCION CABANLIG of the crime of
homicide. We ACQUIT RUPERTO CONCEPCIONCABANLIG of the crime of homicide
and ORDER his immediate release from prison, unless there are other lawful grounds
to hold him. We DIRECT the Director of Prisons to report to this Court compliance
within five (5) days from receipt of this Decision. No costs.
SO ORDERED.

Article 11- Justifying Circumstance: C. Fulfillment of duty or lawful exercise of right