FACTS:

The accused, Ignacio Lagata, a provincial guard of Catbalogan, Samar, was in charge of 6
prisoners (Jesus, Tipace, Eusebio, Mariano, Labong & Abria) assigned to work in the capitol plaza
of Samar.

Lagata ordered the prisoners to go to the nursery to pick up gabi. Not long afterwards, they
were called to assemble. Epifanio Labong was missing so Lagata ordered the 5 remaining
prisoners to go look for him.

Eusebio Abria said that while they were gathering gabi, he heard 3 shots. He was wounded by
the 2nd one. They were already assembled by the 1st shot and that he did not see Tipace being
shot. He said he ran away because he was afraid that he might be shot again and that his
companions were also probably scared and that is why they ran.

Another prisoner, Mariano Ibaez stated that Epifanio Labong did not answer their call so
Ignacio Lagata ordered to go look for him in the mountain. He said that Abria went to the
camote plantation and found footprints and called on Lagata to inform him about the
footprints. When Abria told Lagata of the flattened grass and that he was unable to look for
Labong, Ignacio Lagata fired at him and he was hit on his left arm. Abria told Lagata he was
wounded and in turn, Lagata told them to assemble. Once they were assembled, Lagata cocked
his gun and shot Ceferino Tipace. Mariano said that when he saw Tipace was shot, he ran away
because he also could have been shot.

Eustaquio Galet, another detainee, received good treatment from Lagata though his testimony
corroborated those of the other prisoners.

Pedro Mayuga, chief of Samar Provincial Hospital & Gilberto Rosales, Sanitary Division president,
verified the gunshot wound and that the death of Tipace resulted therein.

Ignacio Lagata, however, said that he fired his gun because the prisoners were running far from
him when he already ordered them to stop. He said that he would be the one in jail if a prisoner
escaped under his custody. Furthermore, he would be discharged from duty like the others. He
was hopeless already. Moreover, the picking up of gabi was not part of the prisoners work.

HELD:

Court ruled that Lagata should be sentenced for homicide and serious physical injuries.

Appellant was entitled to the benefit of mitigating circumstance of incomplete justifying

circumstance. (Art.11par.5, RPC)

RATIO:

It was clear that Lagata had absolutely no reason to fire at Tipace. The record does not show
that Tipace was bent on committing any act of aggression or that he attempted to escape.

According to Lagata himself, Tipace was running towards and around him. How could anyone
intending to escape run towards and around the very guard one was supposed to escape from?
 Even if Lagata sincerely believed that he acted in the performance of his duties, the
circumstances show that there was no necessity for him to fire directly against the prisoners as
to wound them seriously and even kill one of them.

While custodians should take care for prisoners not to escape, only ABSOLUTE NECESSITY would
authorize them to fire against them.