7.

3 Defense of Relatives wounding of Amelia Iguico should be for

attempted homicide only. (Reason: For while
Balunueco v. People
intent to kill was proven, Amelia’s hack wound in
Ponente: Bellosillo, J. 2003 her left leg was not proven to be fatal or that it
Petitioner: Ricardo Balunueco could have produced her death had there been
Respondent: People of the Philippines no timely medical attention provided her, hence,
Victim: Senando Iguico and Amelia Iguico the stage of execution of the felony committed
would only be attempted.)
FACTS:  Petitioner imputed errors to the CA and invoked
 Around 6pm on May 2, 1982 Servando Iguico the justifying circumstance of defense of
(brother of the victim) was being chased by the relatives under Art. 11. (par. 2), of the RPC.
five-original accused, Ricardo, Reynaldo,  SC affirmed the decision of CA and RTC on the
Ramon, and Juanito, all surnamed Balunueco homicide ruling of Crim. Case No. 49576
and Armando Flores. Servando scampered into however modified Decision in Crim. Case No.
the safety of Senando and Amelia’s house. 49577 for Attempted Homicide to Slight Physical
 Senando Iguico (the victim) went out of the Injuries for the wounding of Amelia Iguico.
house unaware of what was happening. 
Armando turned his attention to him and gave
chase. Once he was cornered, Senando was ISSUE/S:
ganged up by the group.
Whether or not the ruling of CA for both criminal cases of
 To shield him from further violence, Amelia put
Ricardo is correct.
her arms around her husband but was not
enough to detract Ricardo from his murderous ARGUMENTS:
frenzy. Amelia was also hit on the leg.
Petitioner CA
 According to Maximo Reyes, NBI Senior
Petitioner In the case at bar,
Medico-legal officer, declared that on 3 May appealed to CA petitioner Ricardo utterly
1982 he conducted a post mortem examination with the following failed to adduce sufficient
on the body of the deceased Senando Iguico arguments: (a) in proof of the existence of a
and issued an Autopsy Report, which contained not taking into positively strong act of real
the following findings:7 (a) two (2) stab wounds consideration the aggression on the part of
and nine (9) gaping hack wounds; and, (b) fact that the deceased Senando.
petitioner, if With the exception of his
cause of death was hemorrhage, acute, profuse,
indeed he self-serving allegations,
secondary to multiple stab and hack wounds. participated, had there is nothing on record
 Of the five (5) original accused,3 only petitioner acted in defense that would justify his killing
Ricardo, accused Reynaldo, Juanito, all of relatives; (b) of Senando.
surnamed Balunueco, and Armando Flores were in giving due
indicted in two (2) Informations, the first for credence to the First, Ricardo’s theory that
homicide4 and the second for frustrated self-serving and when he reached the crime
baseless scene he found Senando
homicide.5 Again, of the four (4) indictees, only testimony of repeatedly hacking his
Ricardo and Reynaldo were brought to the Amelia Iguico, brother Reynaldo who
jurisdiction of the court a quo, while Juanito and the lone and thereafter retaliated by
Armando have remained at large. Accused biased witness smashing an axe on the
Reynaldo died on 17 November 1986. for the victim’s head is implausible
Accordingly, as against him, the criminal cases prosecution; in light of the seriousness
and, (c) in failing of the wounds sustained by
were dismissed. Thus, only the criminal cases
to consider the the deceased as compared
against petitioner Ricardo Balunueco are subject several serious to the minor injuries
of this appeal. physical injuries inflicted upon petitioner and
 RTC found Ricardo guilty of homicide in Crim. sustained by his two (2) brothers. The
Case number 49576 and frustrated homicide in petitioner and his fact that three (3) of the
Crim. Case 49577. It reasoned that the brother assailants suffered non-
testimony of Amelia Iguico was clear, positive, Reynaldo fatal injuries bolsters the
Balunueco. fact that Senando tried
straightforward, truthful and convincing.
vainly to ward off the
 CA sustained the conviction of accused Ricardo
assaults of his assailants.
however it ruled that his conviction for the
 Second, Ricardo failed to
present himself to the
authorities. He may have
accompanied the injured
Reynaldo to the hospital
after the encounter but still
he failed to present himself
to the authorities and report
the matter to them. The
natural impulse of any
person who has killed
someone in defense of his
person or relative is to
bring himself to the
authorities and try to dispel
any suspicion of guilt that
the authorities might have
against him. This fact
assumes a more special
significance considering
that his co-accused,
Juanito and Armando, have
remained at large.
Third, petitioner had a
rather erratic recollection of
people and events. He
vividly remembered how
Reynaldo was injured by
Senando but conveniently
failed to recall the events
leading to the fatal
wounding of the deceased.
At another point, he
testified that Reynaldo
axed Senando but later
retracted his statement by
declaring that it was in fact
Senando who hacked
Reynaldo.15  We observe
that the killing occurred
within or near the premises
of the deceased. This
proves per adventure the
falsity of petitioner’s claim
that it was Senando, rather
than he and his kin, who
had initiated the unlawful
aggression.
LAW/S:
Art. 11, par. (2), of The Revised Penal Code.
The essential elements of this justifying circumstance
are the following: (a) unlawful aggression; (b) reasonable
necessity of the means employed to prevent or repel it;
and, (c) in case the provocation was given by the person
attacked, the one making the defense had no part
therein.
COURT DECISION/DISPOSITION:
WHEREFORE, the assailed Decision of the Court of
Appeals in Crim. Case No. 49576 finding petitioner
Ricardo Balunueco guilty of Homicide is AFFIRMED, and
there being no mitigating nor aggravating circumstance,
petitioner is sentenced to an indeterminate penalty of six
(6) years, two (2) 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. Consistent with
prevailing jurisprudence, his civil liability to the heirs
of Senando Iguico is fixed at P50,000.00. The assailed
Decision in Crim. Case No. 49577 for Attempted
Homicide, on the other hand, is MODIFIED. Petitioner
Ricardo Balunueco is found guilty only of Slight Physical
Injuries for the wounding of Amelia Iguico, and is
accordingly sentenced to suffer a straight prison term of
ten (10) days of arresto menor, and to pay the costs.
of Lucrecio Seguritan the amounts of P50,000.00 as
moral damages and P135, 331.oo as loss of earning
capacity is AFFIRMED with MODIFICATION that
petitioner shall further ordered to pay P25,000 as
temperate damages in lieu of actual damages, and
P50,000.oo as civil indemnity.
7.4 Defense of Strangers.
G.R. No. L-56358 October 26, 1990
PEOPLE OF THE PHILIPPINES vs. LUIS B. TORING,
DIOSDADO BERDON and CARMELO B. BERDIN, 
FERNAN, C.J.:
Preliminary:
 The appellants herein seek the reversal of the
October 28, 1980 decision of the Circuit Criminal
Court in Cebu City in Criminal Case No. CCC-
XIV-2170, the dispositive portion of which reads:
 the Court found the accused Luis B. Toring guilty
beyond reasonable doubt of the crime of
MURDER by direct participation as principal;
Diosdado Berdon as accomplice thereto; and
Carmelo Berdin as accessory after the fact.
Facts:
 May 25, 1980, a benefit dance was held at sitio
Naga, Babag II, Lapu-lapu City for the last
canvassing of votes for the candidates for
princesses who would reign at the sitio fiesta. As
one of the candidates was the daughter of
Samuel Augusto, he and the members of his
family attended the affair.
 Members of the kwaknit gang were outside the
dancing area which was ringed by benches. A
group which was noted for their bird-like way of
dancing and their propensity for drunkenness
and provoking trouble. Its president, "alas" king,
was Luis Toring.
 10:45 p.m., Samuel's daughter was proclaimed
the winner in the contest. Beer and softdrinks
having been served the parents of the
candidates Samuel was tipsy when, after his
daughter's proclamation, he stepped out of the
dancing area to answer the call of nature.
 At that moment, barangay tanod Felix Berdin
saw Luis Toring, Carmelo Berdin and Diosdado
Berdon proceed to a dark area while whispering
to each other.
 Diosdado Berdon handed a knife to Luis
Toring, who then approached Samuel from
behind, held Samuel's left hand with his left
hand, and with his right hand, stabbed with the
knife the right side of Samuel's abdomen.   
 Upon seeing Felix running towards them, Luis
Toring pulled out the knife and, together with
Carmelo Berdin and Diosdado Berdon, ran
towards the dark.
 Felix tried to chase the three but he was not able
to catch them. He returned to where Samuel had
slumped and helped others in taking Samuel to
the hospital.
 According to Maria Catalina Sorono, Diosdado
Berdon and Carmelo Berdin were poised to
deliver fist blows on Samuel just before Luis
Toring stabbed him. Diosdado gave the knife to
Luis Toring.  to Carmelo Berdin because he was the only
 When she saw the stabbing of Samuel, she
shouted for help. Which the three assailants ran
towards the direction of the fields.
 Samuel was bought Opon Emergency Hospital
where he died on arrival. According to the
necropsy report, Samuel, who was thirty years
old, died due to massive hemorrhage secondary
to the stab wound on the abdomen.
o The death weapon, a kitchen knife made
of stainless steel and with a red-colored
handle, was recovered from the house
of Luis Toring.
 According to Patrolman Pantaleon P. Amodia,
the police found out that Luis Toring had left the
weapon with "Camilo" Berdin. When the police
confronted Berdin, the latter led them to the
house of Toring which Berdin entered. When he
emerged from the house, Berdin handed the
weapon to the police.  that fateful night, Toring carried the knife tucked
 All three accused pleaded not guilty to the
offense charged.
 Toring, alias "Lowe," testified that he was not the
president of the kwaknit gang. He went to the
benefit dance in the company of Venir Ybañez,
Joel Escobia, Ely Amion, Abel Pongase, Abe
Berdon, Genio Berdin and Alex Augusta. Toring
and his group were standing outside the dancing
area when, at around eleven o'clock in the
evening, Samuel, a known tough guy ("maldito"),
approached them and held Venir Ybanez by his
collar.
 Then Samuel thrust the butt of his shotgun on
the chin of Joel Escobia, proceeded to another
group who were also gangmates of Toring, and
again, with the barrel of his shotgun, hit Eli
Amion's chest several times. 
 Reacting to what he saw, Toring got his kitchen
knife which was tucked in his waist, approached
Samuel from the latter's right side and stabbed
him once as he did not intend to kill Samuel.
 Toring then ran towards the dark portion of the
area and went home. There, he left the knife and
proceeded to the hut by the fishpond of one
Roman. 
May 26, 1980, 4:00 o'clock in the morning.
Toring was sleeping in the hut with his older
brother, Arsenio, when, at around Edgar
Augusto, the younger brother of Samuel, shot
them. Arsenio was hit on the left leg and he
stayed two months in the hospital for the
treatment of his wound. 
 At 2:00 o'clock in the afternoon of May 26, 1980,
Toring surrendered to two Philippine
Constabulary soldiers. He was brought to the
police of Lapu-lapu City on May 28, 1980. 
 When the police asked him about the knife, he
used in stabbing Samuel, Toring told them to go
person who knew where Toring hid it.  Asserting
that he was the one who returned the knife to his
own house, Toring testified that Carmelo Berdin
used to see him hide his weapons upstairs
because Berdin was a frequent visitor of his. 
 For his part, Carmelo, a 5 feet tall, asthmatic 17-
year-old whom the court described as
"lilliputian," admitted that he witnessed the
stabbing incident but he ran away with his group
immediately after because he was afraid, he
might be shot by Samuel.
 He was with Toring when the latter hid the still
bloodied knife under a trunk in Toring's house.
He was familiar with the hiding place of the knife
because Toring showed it to him and there were
times when he would get the knife there upon
Toring's request.
 Carmelo corroborated Toring's testimony that on
at the back of his waistline. 
 In court, Toring testified that he never saw
Diosdado at the dance.  However, in his sworn
statement dated May 28, 1980 and marked as
Exhibit D, Toring stated that he took the knife
from Diosdado to stab Samuel.
 Confronted with said statement, Diosdado said
that when he asked Toring why he implicated
 him, Toring allegedly replied that he "included"
Diosdado because of the case the barangay
brigade had filed against Toring.  Diosdado Berdon as an accomplice by his act of
 According to Diosdado, he did not attend the
May 25 dance because of the trouble which
erupted during the dance the night before. He
did not have anything to do with the stabbing of
Samuel. He admitted, however, that a week after
the incident, his family went to barrio Andaliw
Ronda, Cebu, for their yearly visit to his father-
in-law. He stayed there for fifteen days and
would have stayed longer had not his mother
informed him of the subpoena addressed to
him.  Did the Appellant acted in defense of his first cousin
Lower Court Ruling. (Circuit Criminal Court) Guilty of
Murder.
On October 28, 1980, the lower court rendered a
decision discrediting Toring's claim that the killing of
Samuel was justified because it was done in defense of
a stranger pursuant to Article 11 (3) of the Revised Penal
Code.
1. The lower court found that Toring was the
"aggressor acting in retaliation or revenge by
reason of a running feud or long-standing
grudge" between the kwaknit gang and the
group of Samuel, who, being the son of the
barangay captain, was a "power to be reckoned
with." It mentioned the fact that a year before the
incident in question, Toring was shot by Edgar
Augusto (Samuel's brother) and hence, in his
desire to avenge himself, Toring, "needed but a
little excuse to do away with the object of his
hatred.  of defense of a relative, however, hinges in this
2. The lower court could not believe that Samuel
brought along his shotgun to the dance because
he was "not reputed to be a public official or
functionary entitled to possess a firearm."
Otherwise, the police and the barangay tanod
would have arrested him. The court surmised
that if Samuel really carried a shotgun, he
certainly must have had a permit or license to
possess the same.
3. It noted that while Toring testified that Samuel
was aiming his shotgun at the chest of Ely
Amyon (Amion), prosecution witness Joel
Escobia claimed that he was at the receiving
end of Samuel's thrusts with the butt of his
shotgun. To the court, such discrepancy is fatal
to the defense because in appreciating the
justifying circumstance of defense of a stranger,
the court must know "with definiteness the
identity of the stranger defended by the
accused." 
4. The lower court, however, ruled out the
existence of conspiracy among the three
accused on the ground that there was no proof
on what they were whispering about when Felix
saw them. Accordingly, it held that the accused
have individual or separate liabilities for the
killing of Samuel: Toring, as a principal,
giving Toring the knife, and Carmelo Berdin as
an accessory for concealing the weapon. It
considered treachery as the qualifying
circumstance to the killing, found no proof as to
allegation of evident premeditation but
appreciated nighttime as an aggravating
circumstance.
ISSUE:
thereby exonerating him from criminal liability?
All three accused appealed.
 Toring seeks his exoneration by contending that
his assault on Samuel was justified because he
acted in defense of his first cousin
o The first and second requisites referred
to are enumerated in paragraph (b) in
the same article on selfdefense as: (a)
unlawful aggression, and (b) lack of
sufficient provocation on the part of the
person defending himself.
 Joel Escobia, whose chin was hit with the butt of
Samuel's shotgun, is the first cousin of Toring
their fathers being brothers, although no
explanation appears on record why they have
different surnames. At any rate, this allegation
on relationship was not rebutted by the
prosecution.
 The appreciation of the justifying circumstance
case on the presence of unlawful aggression on
the part of the victim. Corollarily, the claim of
Toring that Samuel was, at the time of the
assault, carrying a shotgun to intimidate Toring's
group must be proven.
 Understandably, no prosecution witness attested
that they saw Samuel with a firearm. The
prosecution even recalled to the witness stand
Samuel's widow who asserted that her husband
did not own any firearm.  
 Going along with the prosecution's evidence, the
lower court arrived at the rather gratuitous
conjecture that Samuel could not have had a
shotgun with him because no one without a
permit would carry a firearm without risking
arrest by the police or the barangay tanod.
Disposition
WHEREFORE, the decision of the lower court is hereby
affirmed insofar as it convicts Luis Toring as principal in
the murder of Samuel Augusto and Diosdado Berdon as
an accomplice thereto.
Held:
The lower court correctly considered the killing as
murder in view of the presence of the qualifying
circumstance of treachery. The suddenness of the
assault rendered Samuel helpless even to use his
shotgun. We also agree with the lower court that
conspiracy and evident premeditation were not proven
beyond reasonable doubt. Moreover, nighttime cannot
be considered as an aggravating circumstance. There is
no proof that it was purposely sought to ensure the
commission of the crime or prevent its
discovery.  However, Toring should be credited with the
privileged mitigating circumstance of incomplete
defense of relative and the generic mitigating
circumstance of voluntary surrender.
While matters dealing with the credibility of witnesses
and appreciation of evidence are primarily the lower
court's province, this Court has the power to determine
whether in the performance of its functions, the lower
court overlooked certain matters which may have a
substantial effect in the resolution of a case.   
1. Defense witness Joel Escobia was, besides
Toring, the only witness whose sworn
statement was taken by the police on May
26, 1980, the day after the fatal assault on
Samuel.
In his sworn statement,  Escobia attested that as he was
about to dance with a girl, Samuel stopped him, pointed
his shotgun at him, took a bullet from his jacket pocket,
showed it to Escobia and asked him, "Do you like this,
Dong?" to which Escobia replied, "No, Noy I do not like
that." Samuel then placed the bullet in the shotgun and
was thus pointing it at Escobia when Toring came from
behind Samuel and stabbed the latter. Even on cross-
examination at the trial, Escobia did not depart from his
statement. In fact, he added that Samuel pointed the
shotgun at his chin and told him to eat the bullet.  dishonor, said accused failed to pay said Manila
2. There is no reason to doubt Joel Escobia's
assertion of Samuel's unlawful aggression
inasmuch as his sworn statement and
testimony in court had not been successfully
discredited by the prosecution which also
failed to prove that Joel had reason to
prevaricate to favor Toring.
The presence of unlawful aggression on the part of the
victim and the lack of proof of provocation on the part of
Toring notwithstanding, full credence cannot be given, to
Toring's claim of defense of a relative.
3. Toring himself admitted in court as well as in
his sworn statement that in 1979, he was
shot with a .22 caliber revolver by Edgar
Augusto, Samuel's brother. It cannot be
said, therefore, that in attacking Samuel,
Toring was impelled by pure compassion or
beneficence or the lawful desire to avenge
the immediate wrong inflicted on his cousin.
Rather, he was motivated by revenge,
resentment or evil motive because of a
"running feud" between the Augusto and the
Toring brothers. As the defense itself claims,
after the incident subject of the instant case
occurred, Toring's brother, Arsenio, was
shot on the leg by Edgar Augusto. Indeed,
vendetta appears to have driven both camps
to commit unlawful acts against each other.
Hence, under the circumstances, to justify
Toring's act of assaulting Samuel Augusto
would give free rein to lawlessness.
7.5 State of Necessity
G.R. No. 149275             September 27, 2004
VICKY C. TY, vs. PEOPLE OF THE PHILIPPINES
Facts:
This case stemmed from the filing of seven
(7) Informations for violation of B.P. 22 against
Ty before the RTC of Manila.
  accused did then and there willfully, unlawfully
and feloniously make or draw and issue to
Manila Doctors’ Hospital to apply on account or
for value to Editha L. Vecino ,payable to Manila
Doctors Hospital in the amount of ₱30,000.00,
said accused well knowing that at the time of
issue she did not have sufficient funds in or
credit with the drawee bank for payment of such
check in full upon its presentment, which check
when presented for payment within ninety (90)
days from the date hereof, was subsequently
dishonored by the drawee bank for "Account
Closed" and despite receipt of notice of such
Doctors Hospital the amount of the check or to
make arrangement for full payment of the same
within five (5) banking days after receiving said
notice.
 Ty’s mother, Chua Lo So Un, was confined in
Manila Doctors – accused "Acknowledgment of
Responsibility for Payment" in the Contract of
Admission dated 30 October 1990. 6 As of 4 June
1992, the Statement of Account7 shows the total
liability of her mother.
 Ty’s sister, Judy Chua, was also confined at the
hospital. The total hospital bills of the two
patients amounted to ₱1,075,592.95.
 Ty executed a promissory note wherein she
assumed payment of the obligation in
installments. To assure payment of the
obligation, she drew several postdated checks
against Metrobank payable to the hospital. The
 seven (7) checks, each covering the amount of
₱30,000.00, were all deposited on their due
dates. But they were all dishonored by the
drawee bank and returned unpaid to the hospital
due to insufficiency of funds, with the "Account
Closed" advice.
 Soon thereafter, the complainant hospital sent
demand letters to Ty by registered mail. As the
demand letters were not heeded, complainant
filed the seven (7) Informations subject of the
instant case.
 Ty in her defense that she issued the checks
"under the impulse of an uncontrollable fear of a
greater injury or in avoidance of a greater evil or
injury." she was forced to issue the checks to
obtain release for her mother whom the hospital
inhumanely and harshly treated and would not
discharge unless the hospital bills are paid.  Appeals ,wherein this Court declared
RTC ruling:
Trial court found that Ty issued the
checks subject of the case in payment of
the hospital bills of her mother and
rejected the theory of the defense. Thus,
on 21 April 1997, the trial court rendered
a Decision finding Ty guilty of seven (7)
counts of violation of B.P. 22 and
sentencing her to a prison term. The
dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky
C. Ty, for her acts of issuing seven (7)
checks in payment of a valid obligation,
which turned unfounded on their
respective dates of maturity, is found
guilty of seven (7) counts of violations of
Batas Pambansa Blg. 22, and is hereby
sentenced to suffer the penalty of
imprisonment of SIX MONTHS per
count or a total of forty-two (42) months.
CA ruling:
affirmed the judgment of the trial court with
modification. It set aside the penalty of
imprisonment and instead sentenced Ty "to
pay a fine of sixty thousand pesos
(₱60,000.00) equivalent to double the
amount of the check, in each case.
o the Court of Appeals rejected Ty’s
defenses of involuntariness in the
issuance of the checks and the
hospital’s knowledge of her checking
account’s lack of funds. It held that B.P.
22 makes the mere act of issuing a
worthless check punishable as a special
offense, it being a malum prohibitum.
What the law punishes is the issuance
of a bouncing check and not the
purpose for which it was issued nor the
terms and conditions relating to its
issuance.
o the Court of Appeals is also not
convinced that there was no valuable
consideration for the issuance of the
checks as they were issued in payment
of the hospital bills of Ty’s mother. 17
o In sentencing Ty to pay a fine instead of
a prison term, the appellate court
applied the case of Vaca v. Court of
that in determining the penalty imposed
for violation of B.P. 22, the philosophy
underlying the Indeterminate Sentence
Law should be observed, i.e., redeeming
valuable human material and preventing
unnecessary deprivation of personal
liberty and economic usefulness, with
due regard to the protection of the social
order
ISSUE: whether or not the defense of uncontrollable fear
is tenable to warrant her exemption from criminal liability
Held:
 The fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to
issue the checks--a condition the hospital
allegedly demanded of her before her mother
could be discharged--for fear that her mother’s
health might deteriorate further due to the
inhumane treatment of the hospital or worse, her
mother might commit suicide. This is speculative
fear; it is not the uncontrollable fear
contemplated by law
 To begin with, there was no showing that the
mother’s illness was so life-threatening such that
her continued stay in the hospital suffering all its
alleged unethical treatment would induce a well-
grounded apprehension of her death. Secondly,
it is not the law’s intent to say that any fear
exempts one from criminal liability much less
petitioner’s flimsy fear that her mother might
commit suicide. In other words, the fear she
invokes was not impending or insuperable as to
deprive her of all volition and to make her a
mere instrument without will, moved exclusively
 by the hospital’s threats or demands.Ty has also
failed to convince the Court that she was left
with no choice but to commit a crime. She did
not take advantage of the many opportunities
available to her to avoid committing one. By her
very own words, she admitted that the collateral
or security the hospital required prior to the
discharge of her mother may be in the form of
postdated checks or jewelry.30 And if indeed
she was coerced to open an account with the
bank and issue the checks, she had all the
opportunity to leave the scene to avoid
involvement.
WHEREFORE, the instant Petition is DENIED and
the assailed Decision of the Court of Appeals, dated
31 July 2001, finding petitioner Vicky C.
Ty GUILTY of violating Batas Pambansa Bilang 22
is AFFIRMED with MODIFICATIONS. Petitioner
Vicky C. Ty is ORDERED to pay a FINE equivalent
to double the amount of each dishonored check
subject of the seven cases at bar with subsidiary
imprisonment in case of insolvency in accordance
with Article 39 of the Revised Penal Code. She is
also ordered to pay private complainant, Manila
Doctors’ Hospital, the amount of Two Hundred Ten
Thousand Pesos (₱210,000.00) representing the
total amount of the dishonored checks. Costs
against the petitioner.
7.6 Fulfillment of duty
Baxinela vs. People
G.R. No. 149652,
March 24, 2006
AZCUNA, J.
FACTS OF THE CASE
 Petitioner SPO2 Eduardo L. Baxinela assails his
conviction for the crime of homicide by the
Regional Trial Court of Kalibo, Aklan1 (RTC) in
Criminal Case No. 4877, as affirmed with
modification by the Court of Appeals (CA) in CA-
G.R. CR No. 23348.
 On February 19, 1997, an Information charging
Baxinela with the crime of homicide.
 That on or about the 19th day of October , 1996,
early in the morning, at Poblacion, Municipality
of Kalibo, Province of Aklan, while armed with a
handgun, without justifiable cause and with
intent to kill, did then and there wilfully,
unlawfully and feloniously attack, assault and
shoot one RUPERTO F. LAJO, thereby inflicting
upon the latter mortal wounds,
 DIAGNOSIS: Gunshot wound left of arm with
fracture of the humerus, penetrating the (L)
thoracic cavity perforating the diaphragm,
abdomen, stomach and, intestines and
retroperitoneum with slugs lodging the vertebral
column
 CAUSE OF DEATH: Cardiopulmonary arrest,
Secondary to severe bleeding, Secondary to
gunshot wound." as per Autopsy Report issued
by Dr. Roel A. Escanillas, Medical Officer III, Dr.
Rafael S. Tumbokon Memorial Hospital, Kalibo,
Aklan,
 The two version of the story of what
happened in the crime are as follows
 Defense alleges that Baxinela
proceeded to the Superstar Disco Pub in
response to the information given by
Manuba that there was an armed
drunken man accosting several people
inside the pub. Once they arrived, they
saw Lajo with a handgun visibly tucked
behind his waist. When Baxinela
introduced himself as a policeman and
asked why he had a handgun, Lajo
suddenly drew on him prompting
Baxinela to pull out his gun and fire
upon Lajo, critically wounding him.
Thereafter, the defense claims that
Regimen ordered the security guards to
bring Lajo to the hospital while they
proceed to the police station to report
the incident.
 Prosecution contends that Baxinela
was already in the pub drinking with
Regimen and Legarda for more than a
couple of hours prior to the shooting
incident. After witnessing an altercation
between Lajo and another customer,
Baxinela decided to confront Lajo on
why he had a gun with him. Baxinela
approached Lajo from behind and held
the latter on the left shoulder with one
hand while holding on to his .45 caliber
service firearm with the other. As Lajo
was turning around, to see who was
confronting him, Baxinela shot him.
Baxinela then got Lajo’s wallet and fled
the scene with Regimen.
RTC RULING
 found the version of the prosecution, that
Baxinela shot Lajo as the latter was turning
around and without having drawn his gun, more
convincing, and rendered a decision convicting
Baxinela. The RTC, however, considered in
favor of Baxinela the mitigating circumstances of
voluntary surrender and provocation. The
dispositive portion of the decision is as follows:
 o WHEREFORE, the court finds the
accused SPO2 EDUARDO BAXINELA
guilty beyond reasonable doubt of the
crime of Homicide, and considering the
mitigating circumstances of voluntary
surrender and provocation, and applying
the Indeterminate Sentence Law, he is
hereby sentenced to suffer the penalty
of imprisonment of 4 years of prision
correccional medium as minimum, to 8
years and 1 day of prision mayor
medium as maximum.
C.A RULING
 modified Baxinela’s conviction by disallowing
the mitigating circumstance of sufficient
provocation. Accordingly, the dispositive portion
of the appellate court’s decision reads as
follows:
o IN LIGHT OF ALL THE FOREGOING,
the Decision appealed from finding the
Appellant guilty beyond reasonable
doubt of the crime charged is
AFFIRMED, with the MODIFICATION,
that the Appellant is hereby meted an
indeterminate penalty of from EIGHT (8)
YEARS and ONE (1) DAY OF Prision
Mayor, as Minimum, to TWELVE (12)
YEARS, TEN (10) MONTHS and
TWENTY ONE (21) DAYS of Reclusion
Temporal, as Maximum.
 In SC, Early in his testimony, Baxinela
maintained that Lajo had already pulled his
handgun and was aiming at him when he fired.
Subsequently, when the trial court propounded
clarificatory questions, Baxinela’s new assertion
was that the firearm was still at the back of Lajo.
 The RTC and CA accepted the prosecution’s
version. The SC found no reason to disturb such
findings. The SC even points out the difference
of Baxinelas story and the difference on what is
written in the police report:
o SPO2 Eduardo Baxinela accosted the
victim why he had in his possession a
firearm and when the victim SGT
Ruperto Lajo PA was about to get his
wallet on his back pocket for his ID,
SPO2 Eduardo Baxinela anticipated that
the victim was drawing his firearm on his
waist prompting said policeman to shoot
the victim.
 Baxinela claims the justifying circumstances of
self-defense and fulfillment of a duty or lawful
exercise of a right or office.
Issues and Ruling
A. (topic of the case) THAT THE COURT OF
APPEALS ERRED IN DENYING THE
JUSTIFYING CIRCUMSTANCES OF SELF
DEFENSE OR IN THE ALTERNATIVE THE
LAWFUL PERFORMANCE OF OFFICIAL
DUTY UNDER ARTICLE 11 PARAGRAPHS 1
AND 5, RESPECTIVELY, OF THE REVISED
PENAL CODE.
The requisites for self-defense are: 1) unlawful
aggression on the part of the victim; 2) lack of
sufficient provocation on the part of the accused;
and 3) employment of reasonable means to
prevent and repel and aggression.22 By
invoking self-defense, Baxinela, in effect, admits
killing Lajo, thus shifting upon him the burden of
the evidence on these elements.
The first requisite is an indispensable
requirement of self-defense. It is a condition sine
qua non, without which there can be no self-
defense, whether complete or incomplete.23 On
this requisite alone, Baxinela’s defense fails.
Unlawful aggression contemplates an actual,
sudden and unexpected attack on the life and
limb of a person or an imminent danger thereof,
and not merely a threatening or intimidating
attitude. The attack must be real, or at least
imminent. Mere belief by a person of an
impending attack would not be sufficient. As the
evidence shows, there was no imminent threat
that necessitated shooting Lajo at that moment.
Just before Baxinela shot Lajo, the former was
safely behind the victim and holding his arm. It
was Lajo who was at a disadvantage. In fact, it
was Baxinela who was the aggressor when he
grabbed Lajo’s shoulder and started questioning
him. And when Lajo was shot, it appears that he
was just turning around to face Baxinela and,
quite possibly, reaching for his wallet. None of
these acts could conceivably be deemed as
unlawful aggression on the part of Lajo.
(topic of the case) The alternative defense of
fulfillment of a duty. In order to avail of this
justifying circumstance it must be shown
that: 1) the accused acted in the
performance of a duty or in the lawful
exercise of a right or office; and 2) the injury
caused or the offense committed is the
necessary consequence of the due
performance of duty or the lawful exercise of
a right or office.While the first condition is
 present, the second is clearly lacking.
Baxinela’s duty was to investigate the
reason why Lajo had a gun tucked behind
his waist in a public place. This was what
Baxinela was doing when he confronted Lajo
at the entrance, but perhaps through anxiety,
edginess or the desire to take no chances,
Baxinela exceeded his duty by firing upon
Lajo who was not at all resisting. The
shooting of Lajo cannot be considered due
performance of a duty if at that time Lajo
posed no serious threat or harm to Baxinela
or to the civilians in the pub.
B. THAT THE COURT OF APPEALS AND
REGIONAL TRIAL COURT ERRED IN NOT
CONSIDERING THE QUALIFIED MITIGATING
CIRCUMSTANCES IN FAVOR OF THE
ACCUSED.
The Court will, however, attribute to Baxinela the
incomplete defense of fulfillment of a duty as a privileged
mitigating circumstance. In Lacanilao v. Court of
Appeals, it was held that if the first condition is fulfilled
but the second is wanting, Article 69 of the Revised
Penal Code is applicable so that the penalty lower than
one or two degrees than that prescribed by law shall be
imposed.28 Accordingly, the Court grants in favor of
Baxinela a privileged mitigating circumstance and lower
his penalty by one degree. His entitlement to the
ordinary mitigating circumstance of voluntary surrender
is also recognized, thereby further reducing his penalty
to its minimum.
Principles
Requisites of self-defense
The requisites for self-defense are: 1) unlawful
aggression on the part of the victim; 2) lack of sufficient
provocation on the part of the accused; and 3)
employment of reasonable means to prevent and repel
and aggression. By invoking self-defense, Baxinela, in
effect, admits killing Lajo, thus shifting upon him the
burden of the evidence on these elements.
The first requisite is an indispensable requirement of
self-defense. It is a condition sine qua non, without which
there can be no self-defense, whether complete or
incomplete. On this requisite alone, Baxinela’s defense
fails.
Defense of Fulfillment of a Duty
In order to avail of this justifying circumstance it must be
shown that: 1) the accused acted in the performance of a
duty or in the lawful exercise of a right or office; and 2)
the injury caused or the offense committed is the
necessary consequence of the due performance of duty
or the lawful exercise of a right or office.
Baxinela Entitled to Incomplete Defense of
Fulfillment of a Duty
The Court will, however, attribute to Baxinela the
incomplete defense of fulfillment of a duty as a privileged
mitigating circumstance. In Lacanilao v. Court of
Appeals, it was held that if the first condition is fulfilled
but the second is wanting, Article 69 of the Revised
Penal Code is applicable so that the penalty lower than
one or two degrees than that prescribed by law shall be
imposed.
Emergency Recit
Petitioner SPO2 Eduardo L. Baxinela was in a pub
drinking with two other policemen in as early as 11:00
p.m. of October 18, 1996. At around 12:00 a.m. to 12:30
a.m. there was a minor altercation between the
deceased Sgt. Lajo and another customer at the pub but
eventually the two were able to patch things up. While on
his way out, Lajo was followed by Braxinela with a gun
already drawn out. From behind, Baxinela held Lajo’s left
arm and asked why he was carrying a gun. Thereafter
an explosion coming from Baxinela’s gun was heard.
Lajo, still standing, took two steps and then fell down.
The Issue is whether or not fulfilment of duty may validly
be invoked by the petitioner? No. In order to avail of this
justifying circumstance it must be shown that: 1) the
accused acted in the performance of a duty or in the
lawful exercise of a right or office; and 2) the injury
caused or the offense committed is the necessary
consequence of the due performance of duty or the
lawful exercise of a right or office. While the first
condition is present, the second is clearly lacking.
Baxinela’s duty was to investigate the reason why Lajo
had a gun tucked behind his waist in a public place. This
was what Baxinela was doing when he confronted Lajo
at the entrance, but perhaps through anxiety, edginess
or the desire to take no chances, Baxinela exceeded his
duty by firing upon Lajo who was not at all resisting. The
shooting of Lajo cannot be considered due performance
of a duty if at that time Lajo posed no serious threat or
harm to Baxinela or to the civilians in the pub.
Pomoy vs People
G.R. 150647, September 29, 2004
J. Panganiban
FACTS
 Tomas Balboa, a master teacher of Concepcion
College of Science and Fisheries in Concepcion
Iloilo was arrested by some policemen on
January 4, 1990 at 7:30 am because of his
connection to a robbery (December 1989). He
was taken to the Headquarters of the 321st
Philippine Constabulary Company at Camp
Jaladoni, Sara, Iloilo and was detained in jail
 along with Edgar Samudio, another suspect for
the robbery case.
 At 14:00, Pomoy, a police sergeant armed with a
.45 caliber pistol tucked in a holster, went near
the door of Balboa’s jail and directed him to
come out for a tactical investigation at the
investigation room which was located on the
mail building of the compound. The jail guard on
duty, Nicostrado Espar, opened the jail door and
walked towards the investigation room.
 When Pomoy and Balboa reached the main
building, 2 gunshots were heard, Pomoy was
holding the .45 caliber pistol and Balboa was
lying in a pool of blood 2m away. The
Commanding Officer arrived, disarmed Pomoy
and instructed that Balboa be brought to a
hospital but Dr. Palma examined Balboa and
said it was unnecessary to go to the hospital
because Balboa was dead.
 Dr. Jaboneta, a medico-legal, estimated that
when it was inflicted, the assailant must have
pointed the gun’s nozzle to the right-side front of
Balboa.
 Erna Basa, a witness who was working at the
camp that day testified that she heard some
noise and exchange of words. When it seemed,
there was growing trouble, she opened the door
and saw Pomoy and Balboa who were 3m away
from the door, grappling for the possession of
the gun. She was not certain who pulled the gun.
 Eden Legaspi, another witness who was inside
the investigation room, testified that she heard a
commotion outside bur remained seated. When
the commotion started, Basa opened the door,
she saw 2 persons grappling and 2 shots rang
out. She did not leave the place but she stood
up and saw that after the shots, one of the two
men fell down.
 Pomoy testified that he was one of the
investigators and he got Balboa from the
stockade for the interrogation. When Pomoy was
holding the knob of the investigation room and
about to open it, Balboa who was 2m away
approached him, grabbed his gun, but he was
able to take the handle with his left hand. Pomoy
used his right hand to also hold the handle of the
gun. Pomoy then used his left hand to parry
Balboa’s movements. Balboa was holding his
right hand and the 2 grappled.
 Pomoy shared that when the gun was out of the
holster, it fired (but it was locked in safety).
During the grapple, Pomoy used his left hand to
prevent Balboa and Balboa used his right hand
to take possession. The gun fired which
separated both of them and Balboa fell. Sgt.
Alag shouted to stop and Capt. Rolando Maclag
got his gun and said that an investigation will be
conducted.
 RTC found Roweno Pomoy guilty of the crime of
homicide because of factual findings.
 CA affirmed the decision with modification on the
penalty based on the factual findings that (1)
victim was not able to grab hold of the gun
because of Pomoy, (2) The gun had been locked
prior but Pomoy released the lock and
deliberately fired the fatal shots, (3) The location
of Balboa’s wounds did not support the assertion
that there had been a grappling. CA said that an
accident is not believable because Pomoy shot
the victim twice. Moreover, CA debunked the
plea for self-defense because Pomoy failed in
proving the attendance of unlawful aggression.
CA disagreed with RTC’s conclusion that there
was aggravating circumstance of abuse of public
position.
ARGUMENTS
Petitioner Respondent
CA erred in ruling that it It was a deliberate
was not an accidental shooting
shooting
CA erred in ruling that There was no unlawful
self-defense cannot be aggression to invoke self-
invoked defense
ISSUE AND RULING
1. Whether or not there was accidental shooting
YES, because (1) Pomoy had no control of the gun
during the scuffle, the deceased tried to wrest the
weapon from him. It is difficult to imagine that Pomoy
could coolly release the safety lock of the gun and Basa
testified to this scenario
(2) Reliance on People v Reyes is erroneous because
the gun there is a revolver while in the case at bar,
Pomoy’s gun is a semi-automatic pistol which is prone to
accidental firing,
(3) There was grappling because the testimony
coincides with the findings of the medico legal,
(4) The elements of accident (a) accused was
performing a lawful act with due care, (b) resultant injury
was caused by an accident, (c) there was no intent on
the part of the accused are all present. The
consequences of circumstances were beyond the
petitioner’s control.
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.
(5) The petitioner’s conduct and behavior were
remorseful and does not indicate that he was guilty
2. Whether or not petitioner acted in self-defense
YES, because he shot Balboa to protect his life and limb
from real and immediate danger. Although it is an
accident, self-defense contemplates a premeditated
intent to kill in order to defend himself from imminent
danger. The fatal shots did not occurr out of conscious
and premeditated effort.
DISPOSITION
WHEREFORE, the Petition is GRANTED and the
assailed Decision REVERSED. Petitioner is
ACQUITTED.
No costs. SO ORDERED.
ANGCACO v. PEOPLE
G.R. No. 146664 – February 28, 2002
MENDOZA, J.:
FACTS:
 At around 4 o'clock in the morning of September
25, 1980, Noe Bergante and his brother Noel
Bergante and his cousin Freddie Ganancial were
awakened by the sound of gunfire while they
were asleep in their house.
 Petitioner John Angcaco and his co-accused
were serving a warrant of arrest issued on
Restituto Bergante, who was wanted in
connection with a robbery case.
 Noel informed the policemen that his father was
not in the house, having gone to Puerto
Princesa.
 One of them ordered the men in the house to
come out. Noel accordingly went to the gate and
later called Noe to also come out of the house.
 Noe and his cousin, Freddie Ganancial, did as
bidden. Once they were outside the house, Noe
and Freddie were flanked by petitioner Angcaco
on the right side and accused Ramon Decosto
on the left side.
 Decosto pointed an armalite at the two and
warned them not to run. Noe and Freddie joined
Noel Bergante. Protacio Edep approached
Freddie saying, "You are tough," and pushed
him. Then, shots rang out from the armalite and
short firearm of Decosto and Edep, as a result of
which Freddie Ganancial turned around and
dropped to the ground face down.
 Although Dr. Romeo D. Valino conducted the
postmortem examination on the body of Freddie
Ganancial, it fell to Dr. Alberto H. Lim, Assistant
Provincial Health Officer in Palawan, to identify
the medico-legal report of Dr. Valino and to
explain its contents in view of Dr. Valino's death
pending the trial of the case.
 Dr. Lim stated that Freddie Ganancial, alias
Edgar Gallego, 25 years of age, died as a result
of shock secondary to internal and external
hemorrhage due to gunshot wounds on the body
and abdomen, which means that the victim died
because of loss of blood resulting in shock due
to a gunshot wound in the abdomen. 
 The defense presented as its witnesses Protacio
Edep, Ramon Decosto, John Angcaco, and
Lydio Lota, whose testimonies are as follows:
o In the early morning of September 25,
1980, petitioner and his co-accused, led
by Edep, went to the house of Restituto
Bergante in Bato, Taytay, Palawan to
serve a warrant for the latter's arrest.
When they reached the house, Edep
and his men took positions as they had
been warned that Restituto Bergante
might resist arrest. Decosto and
Angcaco were each armed with
armalites, Lota had a carbine, Felizarte
a revolver, and Edep a carbine and a
revolver. Decosto was on the left side of
Edep, around seven to 10 meters from
the latter. Angcaco, on the other hand,
was on right side of Edep, around four to
seven meters from the latter. Edep
called Restituto Bergante to come out of
the house as he (Edep) had a warrant
for his arrest. Restituto's wife replied that
her husband was not in the house,
having gone to Puerto Princesa. A
commotion then took place inside the
house and, shortly after, petitioner saw a
man coming down the house. They fired
warning shots to stop the man, but
petitioner saw another person with a
bolo near Edep. He shouted, "Sarge,
this is the man who tried to hack you!,"
and shot the unidentified man, who fell
to the ground face up. At the time of the
incident, Decosto was on the left side of
Edep, while petitioner, Felizarte, and
Lota were on the right side of Edep.
They later learned that the person killed
was Freddie Ganancial.
 On January 31, 1996, the RTC finds Angcaco
guilty beyond reasonable doubt for the crime of
murder on the grounds that the defense was
unable to disclose the requisites for a
justifying circumstance in fulfilment of a duty
and also acquitting his co-accused for
insufficiency of evidence.
 Angcaco filed an appeal to the CA.
Subsequently, CA affirmed the decision of RTC.
ISSUE:
WON Justifying Circumstances on Fulfilment of duty is
applicable in this case.
DISPOSITION:
WHEREFORE, the decision of the Court of Appeals,
dated November 29, 2000, is AFFIRMED with
the MODIFICATION that petitioner is found guilty of the
crime of homicide and is sentenced to suffer the penalty
of eight (8) years and one (1) day of prision mayor, as
minimum, to fourteen (14) years, eight (8) months, and
one (1) day of reclusion temporal, as maximum, and to
pay the heirs of the victim, Freddie
Ganancial, P50,000.00 as civil indemnity
and P50,000.00 as moral damages.
HELD:
No. In this case, the mission of petitioner and his
colleagues was to effect the arrest of Restituto Bergante.
The standard procedure in making an arrest was, first, to
identify themselves as police officers and to show the
warrant to the arrestee and to inform him of the charge
against him, and, second, to take the arrestee under
custody. But, it was not shown here that the killing of
Ganancial was in furtherance of such duty. No evidence
was presented by the deBergante prove that Ganancial
attempted to prevent petitioner and his fellow officers
from arresting Restituto Bergante. There was in fact no
clear evidence as to how Freddie Ganancial was shot.
Indeed, as already stated, any attempt by the victim to
arrest the wanted person was pointless as Restituto
Bergante was not in his house. As regards the second
requisite, there can be no question that the killing of
Freddie Ganancial was not a necessary consequence of
the arrest to be made on Restituto Bergante.
PRINCIPLE: For this justifying circumstance in
fulfilment of a duty to be appreciated, the following
mustbe established: (1) that the offender acted in the
lawful exercise of a right or aduty; and (b) that the
injury or offense committed be the necessary
consequence of the due performance of such right
or office.
7.7 Obedience of an Order.
CASE: TABUENA v. SANDIGANBAYAN
G.R. No. 103507 February 17, 1997
Ponente: Francisco, J.
FACTS:
 Then President Marcos instructed Luis Tabuena,
in his capacity as the general manager of Manila
International Airport Authority (MIAA) over the
phone to pay directly to the president’s office
and in cash what the MIAA owes the Philippine
National Construction Corporation (PNCC),
pursuant to the 7 January 1985 memorandum of
then Minister Trade and Industry Roberto
Ongpin.
 Tabuena agreed. About a week later, Tabuena
received from Mrs. Fe Roa-Gimenez, then
private secretary of Marcos, a Presidential
Memorandum dated 8 January 1986 reiterating
in black and white such verbal instruction. In
obedience to President Marcos’ verbal
instruction and memorandum, Tabuena, with the
help of Gerardo G. Dabao and Adolfo Peralta,
caused the release of P55 Million of MIAA funds
by means of three (3) withdrawals.
 On 10 January 1986, the first withdrawal was
made for P25 Million, following a letter of even
date signed by Tabuena and Dabao requesting
the PNB extension office at the MIAA the
depository branch of MIAA funds, to issue a
manager’s check for said amount payable to
Tabuena. The check was encashed, however, at
the PNB Villamor Branch. Dabao and the
cashier of the PNB Villamor branch counted the
money after which, Tabuena took delivery
thereof. The P25 Million in cash was delivered
on the same day to the office of Mrs. Gimenez.
Mrs. Gimenez did not issue any receipt for the
money received.
 Similar circumstances surrounded the second
withdrawal/encashment and delivery of another
P25 Million, made on 16 January 1986. The third
and last withdrawal was made on 31 January
1986 for P5 Million. Peralta (Acting Manager)
was Tabuena’s co-signatory to the letter-
request for a manager’s check for this amount.
Peralta accompanied Tabuena to the PNB
Villamor branch as Tabuena requested him to do
the counting of the P5 Million. After the counting,
the money was loaded in the trunk of Tabuena’s
car. Peralta did not go with Tabuena to deliver
the money to Mrs. Gimenez’ office.
 It was only upon delivery of the P5 Million that
Mrs. Gimenez issued a receipt for all the
amounts she received from Tabuena. The
receipt was dated January 30,1986.
 Tabuena and Peralta were charged for
malversation of funds, while Dabao remained at
large. On 12 October 1990, they were found
guilty beyond reasonable doubt because
Sandiganbayan rejected their defense of good
faith in relation to obedience to an order of
superior. Sandiganbayan questioned the
lawfulness of the memorandum and the
conversion of the money since they delivered it
directly to the secretary and not to PNCC.
 Tabuena and Peralta filed separate petitions for
review, appealing the Sandiganbayan decision
dated 12 October 19990 and the Resolution of
20 December 1991.
Issue:
Whether or not petitioners are guilty of the crime of
malversation.
Held:
Luis Tabuena and Adolfo Peralta are acquitted of the
crime of malversation.
Tabuena had no other choice but to make the
withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be
faulted if he had to obey and strictly comply with the
presidential directive, and to argue otherwise is
something easier said than done. Marcos was
undeniably Tabuena's superior — the former being then
the President of the Republic who unquestionably
exercised control over government agencies such as the
MIAA and PNCC. In other words, Marcos had a say in
matters involving inter-government agency affairs and
transactions, such as for instance, directing payment of
liability of one entity to another and the manner in which
it should be carried out. And as a recipient of such kind
of a directive coming from the highest official of the land
no less, good faith should be read on Tabuena's
compliance, without hesitation nor any question, with the
MARCOS Memorandum. Tabuena therefore is entitled to
the justifying circumstance of "Any person who acts in
obedience to an order issued by a superior for some
lawful purpose." The subordinate-superior relationship
between Tabuena and Marcos is clear. And so too, is the
lawfulness of the order contained in the MARCOS
Memorandum, as it has for its purpose partial payment
of the liability of one government agency (MIAA) to
another (PNCC).
Even assuming that the real and sole purpose behind
the MARCOS Memorandum was to siphon-out public
money for the personal benefit of those then in power,
still, no criminal liability can be imputed to Tabuena.
There is no showing that Tabuena had anything to do
whatsoever with the execution of the MARCOS
Memorandum. Nor is there proof that he profited from
the felonious scheme. In short, no conspiracy was
established between Tabuena and the real embezzler/s
of the P5 Million. This is not a sheer case of blind and
misguided obedience, but obedience in good faith of a
duly executed order. Indeed, compliance to a patently
lawful order is rectitude far better than contumacious
disobedience. In the case at bench, the order emanated
from the Office of the President and bears the signature
of the President himself, the highest official of the land. It
carries with it the presumption that it was regularly
issued. And on its face, the memorandum is patently
lawful for no law makes the payment of an obligation
illegal. This fact, coupled with the urgent tenor for its
execution constrains one to act swiftly without
question. Obedientia est legis essentia.(Obedience is the
essence of the Law)
DISPOSITIVE PORTION:
WHEREFORE, in view of the foregoing, herein
petitioners Luis A. Tabuena and Adolfo M. Peralta are
hereby ACQUITTED of the crime of malversation as
defined and penalized under Article 217 of the Revised
Penal Code. The Sandiganbayan Decision of October
12, 1990 and the Resolution dated December 20, 1991
are REVERSED and SET ASIDE.
YAPYUCO RULING
The undisputed presence of all the accused at the situs of the
incident is a legitimate law enforcement operation. No objection
is strong enough to defeat the claim that all of them – who
were either police and barangay officers or CHDF members
tasked with the maintenance of peace and order – were bound
to, as they did, respond to information of a suspected rebel
infiltration in the locality. Theirs, therefore, is the specific duty
to identify the occupants of their suspect vehicle and search for
firearms inside it to validate the information they had received;
they may even effect a bloodless arrest should they find cause
to believe that their suspects had just committed, were
committing or were bound to commit a crime. While, it may
certainly be argued that rebellion is a continuing offense, it is
interesting that nothing in the evidence suggests that the
accused were acting under an official order to open fire at or
kill the suspects under any and all circumstances. Even more
telling is the absence of reference to the victims having
launched such aggression as would threaten the safety of any
one of the accused, or having exhibited such defiance of
authority that would have instigated the accused, particularly
those armed, to embark on a violent attack with their firearms
in self-defense. In fact, no material evidence was presented at
the trial to show that the accused were placed in real mortal
danger in the presence of the victims, except maybe their bare
suspicion that the suspects were armed and were probably
prepared to conduct hostilities.
The right to kill an offender is not absolute, and may be used
only as a last resort, and under circumstances indicating that
the offender cannot otherwise be taken without bloodshed. The
law does not clothe police officers with authority to arbitrarily
judge the necessity to kill. It may be true that police officers
sometimes find themselves in a dilemma when pressured by a
situation where an immediate and decisive, but legal, action is
needed. However, it must be stressed that the judgment and
discretion of police officers in the performance of their duties
must be exercised neither capriciously nor oppressively, but
within reasonable limits. In the absence of a clear and legal
provision to the contrary, they must act in conformity with the
dictates of a sound discretion, and within the spirit and purpose
of the law. We cannot countenance trigger-happy law
enforcement officers who indiscriminately employ force and
violence upon the persons they are apprehending. They must
always bear in mind that although they are dealing with
criminal elements against whom society must be protected,
these criminals are also human beings with human rights.
Lawlessness is to be dealt with according to the law. Only
absolute necessity justifies the use of force, and it is incumbent
on herein petitioners to prove such necessity. We find,
however, that petitioners failed in that respect. Although the
employment of powerful firearms does not necessarily connote
unnecessary force, petitioners in this case do not seem to have
been confronted with the rational necessity to open fire at the
moving jeepney occupied by the victims. No explanation is
offered why they, in that instant, were inclined for a violent
attack at their suspects except perhaps their over-anxiety or
impatience or simply their careless disposition to take no
chances. Clearly, they exceeded the fulfillment of police duties
the moment they actualized such resolve, thereby inflicting
Licup with a mortal bullet wound, causing injury to Villanueva
and exposing the rest of the passengers of the jeepney to
grave danger to life and limb – all of which could not have been
the necessary consequence of the fulfillment of their duties.