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-- Criminal Law --

KILLING DUE TO ANGER DURING A PANDEMIC - WHAT'S THE PENALTY?

Killing a person is, as a rule, a crime (technically called "a felony"). It may be
homicide or murder. Generally, the killing of another person is classified as homicide
unless any of the following circumstances is present, in which case homicide gets
upgraded to murder:
1. Done with treachery;
2. Done by taking advantage of superior strength;
3. Done with the aid of armed men;
4. Done by employing means to weaken the defense or of means or persons to
insure or afford impunity;
5. Done in consideration of a price, reward, or promise;
6. Done by means of inundation, fire, poison, explosion, shipwreck, stranding of
a vessel, derailment or assault upon a street car or locomotive, fall of an
airship;
7. Done by means of motor vehicles;
8. Done with the use of any other means involving great waste and ruin;
9. Done on occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic or other public calamity;
10. Done with evident premeditation;
11. Done with cruelty, by deliberately and inhumanly augmenting the suffering of
the victim; or
12. Done with outraging or scoffing at the victim's person or corpse. (Articles 248,
Revised Penal Code)

In short, if none of the above is present, killing is only categorized as homicide. The
distinction is important because murder is punished with reclusion perpetua in its
maximum period to death. On the other hand, homicide is punished with reclusion
temporal. (Articles 248 and 249, Revised Penal Code)

The penalty of reclusion temporal shall be from twelve years and one day to twenty
years. (Article 27, Revised Penal Code) The penalty of death, currently, cannot be
imposed as it is prohibited by law.

Recently very popular is the case of Police Corporal Jonel Nuezca who shot dead
Sonya Gregorio and Frank Gregorio over an argument with Frank. According to
Police Colonel Renante Cabico, director of the Tarlac Provincial Police Office,
Nuezca had gone to the Gregorios to investigate who was shooting boga, an
improvised canon usually made of bamboo, used to make noise during New Year
celebrations. When Nuezca tried to arrest Frank Gregorio, who appeared drunk, his
mother Sonya intervened. "Nung aarestuhin niya, nakialam daw po 'yung magulang,
'yung nanay niya na si Sonya, na naging biktima po hanggang nabaril na nga po
'yung mag-ina," said Cabico on Monday, December 21, in an interview with DZBB.

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The question now is whether this is homicide or murder. The prosecution would
obviously push for a higher penalty under the law on murder. On the other hand, the
defense would use justifying, exempting and mitigating circumstances provided
under the Revised Penal Code.

The argument for murder is bolstered by the fact that the police officer did the killing
during this COVID-19 pandemic which falls under #9 above which says: "epidemic or
other public calamity." Cruelty may also be cited as a qualifying aggravating
circumstance due to the fact that the police officer shot the female victim a second
time when she was already hit by the first bullet.

On the other hand, there are those who say that one or two of the following may be
used as a defense:
1. Self-defense (justifying circumstance);
2. Fulfillment of a duty (justifying circumstance);
3. Insanity (exempting circumstance); or
4. Compulsion of irresistible force (exempting circumstance).

The argument for self-defense fails because, first, there was no unlawful aggression.
The fact that the mother ridiculed the killer's daughter is aggression enough to
warrant killing. It should be proportional to the aggression and adequate to stir the
aggressor to its commission. (People vs. Rabanal, G.R. No. 146687, 22 August
2002) Second, the means employed were not reasonable to repel the perceived
aggression. Under the circumstances, the killer could have simply covered the mouth
of the female victim or, at the most, slap her if, indeed, he was provoked to act
violently.

The argument for fulfillment of a duty also fails. 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. In case injury or death results from
the policeman’s 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.

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
policeman’s use of what appears to be excessive force could be justified if there was
imminent danger to the policeman’s 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.

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

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Unlike in self-defense where unlawful aggression is an element, in performance of

duty, unlawful aggression from the victim is not a requisite.

The elements of self-defense are as follows:

1. Unlawful Aggression;
2. Reasonable necessity of the means employed to prevent or repel it;
3. Lack of sufficient provocation on the part of the person defending himself.

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; and
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.

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. In case injury or death results from the policeman’s 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 policeman’s duty requires him to overcome the offender, the force exerted
by the policeman may therefore differ from that which ordinarily may be offered in
self-defense. 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.

In People v. Delima (16 46 Phil. 738, 1922), 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 fugitive’s 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. It may even appear that the public officer acting in the
fulfillment of duty is the aggressor, but his aggression is not unlawful, it being
necessary to fulfill his duty.

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
policeman’s use of what appears to be excessive force could be justified if there was
imminent danger to the policeman’s life or to that of a stranger. If the policeman used

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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.

In People v. Lagata (83 Phil. 150, 1949), 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 prisoner’s escape.

In Cabalig v. Sandiganbayan (G.R. No. 148431, July 28, 2005), 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. The
Supreme Court upheld 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. 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, there is a need to
examine if Cabanlig used necessary force to prevent Valino from escaping and in
protecting himself and his co-accused policemen from imminent danger.

As to the defense of insanity, there are those who say that there was "temporary
insanity" on the part of the killer. Obviously, this argument has to be resorted to
because the killer even attempted to make an arrest prior to the violence, which
negates the idea that he was insane.

Article 12 of the Revised Penal Code provides for one of the circumstances which
will exempt one from criminal liability which is when the perpetrator of the act was an
imbecile or insane, unless the latter has acted during a lucid interval. This
circumstance, however, is not easily available to an accused as a successful
defense. Insanity is the exception rather than the rule in the human condition. Under
Article 800 of the Civil Code, the presumption is that every human is sane. Anyone
who pleads the exempting circumstance of insanity bears the burden of proving it
with clear and convincing evidence. It is in the nature of confession and avoidance.
An accused invoking insanity admits to have committed the crime but claims that he
or she is not guilty thereof because of insanity. The testimony or proof of an
accused’s insanity must, however, relate to the time immediately preceding or
simultaneous with the commission of the offense with which he is charged. (Quoted
in G.R. No. 218945, December 13, 2017 with affirmance but with modification as to
penalty)

Unfortunately, even the defense of "temporary insanity" necessarily fails. "Temporary

insanity" is not recognized in this jurisdiction and that mere abnormality of the mental
faculties will not exclude imputability. (People v. Aquino, G.R. No. 128887, January
20, 2000)

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Finally, the killer also cannot successfully interpose the defense of compulsion of an
irresistible force. In fact, in People v. Dansal, the Supreme Court held that a person
invoking the exempting circumstance of compulsion due to irresistible force admits in
effect the commission of a punishable act, and must therefore prove the exempting
circumstance by clear and convincing evidence. Specifically, he must show that the
irresistible force reduced him to a mere instrument that acted not only without will but
also against his will. The compulsion must be of such character as to leave the
accused no opportunity to defend himself or to escape. The duress, force, fear or
intimidation must be present, imminent and impending; and it must be of such a
nature as to induce a well-grounded apprehension of death or serious bodily harm if
the act is not done. A threat of future injury is not enough. A speculative, fanciful or
remote fear, even fear of future injury, is insufficient. (341 Phil. 549 [1997], cited in
People v. Licayan, G.R. No. 203961, July 29, 2015)

Mitigating circumstances (those that may make the penalty lower), however, may be
appreciated. There are arguments that say the following should apply:
1. The killer having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation; and/or
2. The killer voluntarily surrendering himself to a person in authority or his
agents. (Article 13, Revised Penal Code).

In People v. Lobino, it was held that "[t]here is passional obfuscation when the crime
was committed due to an uncontrollable burst of passion provoked by prior unjust or
improper acts, or due to a legitimate stimulus so powerful as to overcome reason."
The obfuscation must originate from lawful feelings. The turmoil and unreason which
naturally result from a quarrel or fight should not be confused with the sentiment or
excitement in the mind of a person injured or offended to such a degree as to
deprive him of his sanity and self-control, because the cause of this condition of mind
must necessarily have preceded the commission of the offense. (375 Phil. 1065,
1999, citing People v. Valles, G.R. No. 110564, January 28, 1997)

The killer may also choose to voluntarily confess his guilt before the court prior to the
presentation of the evidence for the prosecution in order to make the penalty lower.
However, these mitigating circumstances are heavily reliant on factual findings;
therefore, a full-blown trial must proceed to determine them.

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