#38 Yapyuco vs.

Sandiganbayan 624 SCRA 470 June 25, 2012

Facts:

This is a petition for review on certiorari of a decision of the Sandiganbayan finding

Yapyuco and et al. guilty for murder, frustrated murder and multiple counts of attempted murder,
respectively. The cases are predicated on a shooting incident which caused the death of
Leodevince Licup (Licup) and injured Noel Villanueva (Villanueva). Petitioner Yapyuco and
others were all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members
of the Civil Home Defense Force (CHDF), and all acted in the performance of their duty.

Petitioners used “mistake of fact” as defense. They stated that they thought the
individuals inside the vehicle were NPAs.

Issue:

Whether the petitioners acted in fulfillment of duty or lawful exercise of a right or office
under Article 11 (5) of the Revised Penal Code

Ruling:

No. 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. 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 requisites for justification under Article 11 (5)
of the Revised Penal Code do not obtain in this case.

Petition was denied.

Notes:

“The right to kill an offender is not absolute, and may be used only as a last resort”
(People vs. Ulep)

The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a

right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused
acted in the performance of his duty or in the lawful exercise of his right or office , and (b) the
injury caused or the offense committed is the necessary consequence of the due performance
of such duty or the lawful exercise of such right or office.

A law enforcer 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; He is, however, 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 effected otherwise.