CHAPTER TWO

CIRCUMSTANCES AFFECTING OR MODIFYING THE CRIMINAL LIABILITY OF THE

ACCUSED

1. JUSTIFYING CIRCUMSTANCES. (Art. 11)

2. EXEMPTING (Art. 12)
3. MITIGATING – (Art 13)
4. AGGRAVATING CIRCUMSTANCES (Art 14)
5. ALTERNATIVE (ART. 15)
6. and other absolutory causes (Art 20, Art 124, last par. Of RPC)

KEYWORD: JEMAA

1. JUSTIFYING CIRCUMSTANCES: (Art 11)

Effects: - A person does not incur criminal liability.

-The act of person here is in accordance with law and he is not deemed to have violated
the law.
-The person is free from criminal and civil liability except par 4. of Art 12.
-There is not crime and no criminal to speak of.
-Basis – Based on man’s impulse of self-preservation. It is part of his nature as human
being to defend himself.

“The law on self-defense embodied in any penal system in the civilized world finds
justification in man's natural instinct to protect, repel, and save his person or rights from
impending danger or peril; it is based on that impulse of self-preservation born to man and
part of his nature as a human being. Thus, in the words of the Romans of ancient
history: Quod quisque ob tutelam sui fecerit, jure suo ficisse existimetur . To the Classicists
in penal law, lawful defense is grounded on the impossibility on the part of the State to
avoid a present unjust aggression and protect a person unlawfully attacked, and therefore
it is inconceivable for the State to require that the innocent succumb to an unlawful
aggression without resistance; while to the Positivists, lawful defense is an exercise of a
right, an act of social justice done to repel the attack of an aggressor.(People vs. Caballero,
G.R. No. l-23249, Nov. 25, 1974)

2. EXEMPTING:

Effects:
-The act done is criminal, but no criminal liability arises because there is an absence of
voluntariness or deceit or fault.
-There is a crime but there is no criminal
-There is a civil liability but no criminal liability except under par. 4 and 7 of the RPC where
there is no civil liability at all.
3. MITIGATING – Effects:

-There is a reduction of penalty in terms of period or degree.

Reason: Diminution of freedom of action, intelligence, or intent or lesser perversity of the

offender. (Explain the degree and period)

There are 2 kinds of MITIGATING:

1) Ordinary – Those are found in Art 13 of RPC

2) Privileged - in case of incomplete Self Defense under Art. 69 and those that are
found in Art 64, par. 5 and Art 68 of RPC.

Effects of the presence of Mitigating circumstances and Rule of reduction of penalty by

period or degree:

1. If there is no mitigating and aggravating. Medium period

2. If there is mitigating –no aggravating. Minimum
3. If there are 2 or more mitigating and no aggravating present. One degree lower (Art
64, par. 5)
4. If the minor is above 15 but under 18 who acted with discernment. One degree
lower of the penalty for the offense. (Art 68, RPC)
5. In case of incomplete self-defense, the reduction is 1 or 2 degrees lower pursuant
to Art 69 of the RPC.

4. AGGRAVATING: This is based on the GREATER PERVERSITY of the offender manifested in

the commission of the felony because of:

a) Motivating power
b) Place of commission
c) Means and way employed
d) Time
e) Personal circumstances of the offender or of the offended party.

There are different kinds of aggravating:

1. Generic aggravating - applies to all crimes and the effect is to increase the
penalty by period.
2. Specific – applies to a particular crime
3. Qualifying – it changes the nature of the felony, and it elevates it to a higher
category. See. Art 248 about murder.
4. Inherent – part of the felony. It does not increase at all the penalty.
5. Special – it increases the penalty of the offense and cannot be offset by
mitigating circumstances.

We will study more of this when we discuss different kinds of aggravating.

ALTERNATIVE – this circumstance is either aggravating or mitigating depending upon the nature and
effects of the crime and other conditions attending its commission.
BASIS: The nature and effects of the crime and other conditions attending its commission.

Relationship
Intoxication
Degree of Instruction and Education of the Offender

7. OTHER ABSOLUTORY CAUSES: These are exempting circumstances outside the exempting
circumstances under Art. 12 such as Art 20 in relation to Art 19 and Art. 332.

Other examples of Absolutory causes:

a) Instigation
b) Spontaneous desistance in attempted felony (Art 6)
c) Accessories in Art 20
d) Certain accessories in Art 20, etc.

8. EXTENUATING CIRCUMSTANCES – mitigating circumstances not found in Art 13, such as

Art 333 (husband killing a wife committing adultery) and Art 255 mother killing a child to conceal
dishonor.

Justifying Circumstances

What are the justifying circumstances? Answer: Art. 11

ARTICLE 11. Justifying circumstances. — The following do not incur any criminal
liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third.Lack of sufficient provocation on the part of the person defending himself.

This is the doctrine of self-defense. This is an affirmative defense that may be set up by the accused
to absolve himself from criminal prosecution.

No crime is committed, and the accused is justified in his act.

Who has the Burden of proof? The accused. Self-defense is an affirmative allegation of the accused,
and so the burden of proving (onus probandi) the justifying circumstance rests on him. (People vs.
Geneblazo, 361 SCRA 572 (2001)
DEGREE OF PROOF: Clear and convincing evidence. This is a matter of defense of the accused. This
must be proven with certainty and by sufficient, satisfactory and convincing evidence. The accused
must not rely on the weakness of the prosecution but on the strength of his own defense.(People vs.
Bonico, 217 SCRA 653)

What are the rights included in self-defense?

(1) Right of the person to life or body

(2) other rights the enjoyment (property, chastity and honor) of which is protected by law.

a) Right to life or limb – ‘a woman, though worn out and made unhappy by conjugal
sufferings and cruelties but clinging fast to dear life, has every right to defend her own self
in the face of a real menace, whether coming from a stranger or from an irate husband .”
(People vs Orpiano, 70 Phil 522)

b) Right to Honor – The woman imperilled may kill her offender if that is the only means left
to protect her honor from so grave outrage. (People vs. Luague, et. al., 62 Phil 504)

c) Right to Liberty – a person may resist an unlawful arrest. A law abiding citizen should
remain vigilant and militant over their own rights and duties lest they lose them in default.

d) Right to Property – Defense of Home, Defense of property other than home. Defense of
rights over the property.

REQUISITES NO. 1: UNLAWFUL AGGRESSION:

IMPT. POINTS IN UNLAWFUL AGGRESSION –

-This is an indispensable requirement. A condition sine qua non in self defense.

-What constitutes Unlawful aggression? It includes ASSAULT, ATTACK or THREAT with an

attack in an immediate and imminent manner. It must be physical force or actual use of weapon.
(People vs. Crisostomo, 108 SCRA 288) Example: Brandishing a knife as if to stab or pointing a gun
to discharge against the other.

THE TEST or DESCRIPTION OF UNLAWFUL AGRESSION:

Unlawful aggression on the part of the victim is the primordial element of the justifying circumstance
of self-defense. Without unlawful aggression, there can be no justified killing in defense of oneself .
The test for the presence of unlawful aggression under the circumstances is whether the aggression
from the victim put in real peril the life or personal safety of the person defending himself; the peril
must not be an imagined or imaginary threat.

Accordingly, the accused must establish the concurrence of three elements of unlawful aggression,
namely: (a) there must be a physical or material attack or assault; (b) the attack or
assault must be actual, or, at least, imminent; and (c) the attack or assault must be
unlawful.

TWO KINDS OF UNLAWFUL AGGRESSION:

(a) actual or material unlawful aggression; and

(b) imminent unlawful aggression.

Actual or material unlawful aggression means an attack with physical force or with a weapon, an
offensive act that positively determines the intent of the aggressor to cause the injury.

Imminent unlawful aggression means an attack that is impending or at the point of happening; it
must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be
offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a
knife and making a motion as if to attack).

Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as
pressing his right hand to his hip where a revolver was holstered, accompanied by an angry
countenance, or like aiming to throw a pot. (People vs. Rodolfo Advincula, G.R. No. 218108,
April 11, 2018)

Actual or material unlawful aggression means an attack with physical force or with a weapon,
an offensive act that positively determines the intent of the aggressor to cause the injury (People
vs. Del Castillo, G.R. No. 169084, January 18, 2012; People vs. Roman, G.R. No. 198110,
July 31, 2013; People vs. Malicdem, G.R. No. 184601, November 12, 2012).

- When there is no unlawful aggression, no self defense, either complete or incomplete.

-Origin of unlawful aggression, must come from the victim-aggressor, injured or deceased and not
from the accused-defender.

-The unlawful aggression must be directed against the party defending himself (the accused or
defendant).

-unlawful aggression must be real and not merely imagined. It presupposes an act positively
strong, showing a wrongful intent of the aggressor, not merely threatening or intimidating attitude,
but a material attack. (People vs. Macaso, 64 SCRA 659, US VS. Guy-sayco, 13 Phil 292)

Is the drawing one’s gun without pointing a gun to the accused already constitutes unlawful
aggression? Answer: Ordinarily there is a difference between the act of drawing one’s gun and the
act of pointing one’s gun at a target. The former cannot be said to be unlawful aggression on the
part of the victim. For unlawful aggression to be attendant there must be a real danger to
life or personal safety. Unlawful aggression requires an actual, sudden and unexpected
attack, or imminent danger thereof, and not merely a threatening or intimidating
attitude. Here, the act of the victim in drawing a gun from his waist cannot be categorized as
unlawful aggression. Such act did not put in real peril the life or personal safety of the appellant.
EXCEPTION: However, the facts surrounding the case must be differentiated from current
jurisprudence on unlawful aggression. The accused was justified in defending himself
considering that victim was a trained police officer and an inebriated and disobedient
colleague. Even if the victim did not point his firearm at accused, there would still be a
finding of unlawful aggression on the part of the victim (Nacnac vs. People, G.R. No.
191913, March 21, 2012).

Examples of aggression which are merely imaginary, and not real; hence not considered
unlawful:

-The victim merely draws a knife. (People vs. Escarlos, 410 SCRA 463 (2003)
-The victim merely starts scolding the accused. (People vs. Arnante, 391 SCRA 155 (2002)
-The victim merely shouts out threats and pound the door. (People vs. Binondo, 214 SCRA 764)
-The victim approaches and is not brandishing a weapon. (Araneta Jr. vs. CA, 187 SCRA 123)
-The victim is unarmed and raises his right arm chest high. (People vs. Rey, 172 SCRA 149)
-The victim threatens to aim and throw a pot. (People vs. Labinia, 115 SCRA 223)
- victim utters the word ‘so leche, after all wanting from us” (People vs. Riduca, 55 SCRA 190).

-a mere slight provocation is not unlawful aggression.

-Unlawful aggression always precedes self defense.
-Unlawful aggression should be continuing.
-In an agreed fight, unlawful aggression is reciprocal’ hence, no self-defense.
-The defender may apply the “stand-your-own-ground when in the right rule.

THE ESSENCE OF UNLAWFUL AGRESSION:

“Unlawful aggression on the part of the victim is the primordial element of the justifying
circumstance of self-defense. Without unlawful aggression, there can be no justified killing in defense
of oneself.  The test for the presence of unlawful aggression under the circumstances is
whether the aggression from the victim put in real peril the life or personal safety of the
person defending himself; the peril must not be an imagined or imaginary threat.
Accordingly, the accused must establish the concurrence of three elements of unlawful aggression,
namely: (a) there must be a physical or material attack or assault; (b) the attack or assault must be
actual, or, at least, imminent; and (c) the attack or assault must be unlawful. (G.R. No. 172606,
November23, 2011, 661 SCRA 159, 167-168)  

-Without unlawful aggression, the second requisite will have no basis because there is nothing to
repel or prevent.

Examples of UNLAWFUL aggression:

-When there is an assault or at least a threatened assault of an immediate and imminent kind.

-There is an unlawful aggression when there is a peril to one’s life, limb or right. The
danger must be present, or actually in existence. the danger must at least be imminent or at the
point of happening. There is a peril to one’s limb, when the blow is aimed at the vital parts of the
body where there is danger to life.

There is an unlawful aggression with there is an actual physical force or actual use of force.

1.Slap on the face is an unlawful aggression. It is a willful disregard or defiance of one’s personality.

2.In Retaliation – the aggression began by the injured party already ceased to exist when the
accused attacked him.

Examples of aggression which are not unlawful:

- When it is merely a threatening attitude or intimidating one.

- When there is no peril to one’s life, limb or right.
- Light push is not UA.
- Foot kick greeting is not.

OTHER IMPORTANT POINTS IN UNLAWFUL AGGRESSION:

-The attack made by the deceased and his killing by the accused SHOULD SUCCEED
EACH OTHER without appreciable interval of time. Or the killing of the deceased by the
accused must be SIMULTANEOUS with the attack made by the deceased.
-The unlawful aggression must come from the person who was killed by the accused. The aggressor
must be the deceased and not another person.

-The nature of the wound, character, location or extent of the wound allegedly inflicted on the
accused by the injured party or would sustained by the injured party or deceased may belie the
claim of self defense of the accused.

Example: Accused only sustained small scar while the accused sustained multiple stab wounds and
the only witness is the accused.

-When the aggressor flees, unlawful aggression no longer exists. The one making the
defense has no more right to kill or even wound the former aggressor. Thus, if after the
initial stabbing attack on him, he was able to take possession of the weapon and ran towards the
second level of the house of Vicente Danao, away from FRANCISCO. At that point, the unlawful
aggression against him effectively ceased. When FRANCISCO and appellant again grappled for
possession of the weapon, appellant now became the armed protagonist, and FRANCISCO’s act of
trying to wrest the weapon cannot be considered as unlawful aggression. At that moment, appellant
no longer faced any imminent or immediate danger to his life and limb from FRANCISCO. (People vs.
Dulin, G.R. No. 171284, June 29, 2015)

-There still an unlawful aggression when the injured party merely retreated to take more
advantageous position. The aggression is still continuing.

There is No unlawful aggression in the following situations:

-Even the cocking of a rifle without aiming the firearm at any particular target is not sufficient
to conclude that ones life was in imminent danger. Hence, a threat, even if made with a
weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary
that the intent be ostensibly revealed by an act of aggression or by some external acts
showing the commencement of actual and material unlawful aggression . (Nacnac vs.
People, G.R. No. 191913. March 21, 2012)
 
-No unlawful aggression when there is an agreement to fight. Or the challenge to fight is accepted.
When the fight is agreed, each of the protagonist is at once assailant and assaulted, no one can
invoke self defense. It is immaterial who attacks first. BUT, aggression which is ahead of the
stipulated time and place is unlawful even if there is an agreement.

One who voluntarily joined the fight cannot claim self defense.

- Belief of the accused maybe considered in determining the unlawful aggression such as when the
aggression used a toy pistol and the accused believed it was a real gun.

UNLAWFUL AGRESSION CEASES, THE RIGHT TO SELF DEFENSE ALSO CEASES:

-When the victim is disarmed. (People vs. Encarlos, 410 SCRA 463 (2003)
-The victim turned around and walked away. (People vs. Annibong, 403 SCRA 92 (2003)
-The victim ran away and disarmed. (People vs.Geneblazo, 361 SCRA 572)
-The victim fled in retreat. (People vs. Alconga, et. al., 78 Phil. 366) However, if the retreat is to take
an advantageous position and to insure the success of the attack already began by the attacker, the
unlawful aggression continues.
-The victim ran and fled after running out of bullets. (People vs. del Rosario, 2 C.A.R. (2s) 184) In all
of these, if there is nothing to defend, there is no reason for defense. (People vs. Alconga, 78 Phil
336)

UNLAWFUL AGGRESSION IN DEFENSE OF RIGHTS. Such as defense of right to chastity, defense of

property, defense of home.

This requires also the first and second requisites. But defense of property must be coupled with
an attack on the person of one entrusted with the property. Defense of home, if the person who
forced his way to the house is armed with bolo, that is unlawful aggression already.

QUESTION: Can a person kill someone in order to defend his home? Answer: “A man's house is
his castle. When a person is attacked in his own house, he has a right to protect it, and those
within it, from the intrusion or attack. He may repel force by force in defense of person,
habitation, or property, against one who manifestly intends or endeavors by violence or surprise
to commit a felony, such as arson, upon either. In such case one is not obliged to retreat, but
may pursue his adversary until he has secured himself from danger. (People vs. Lewis [1897],
117 Cal., 186, citing East's Pleas of the Crown, p. 271, and Foster's Crown Cases, chapter 3, p.
273, where the rule is well stated.) Cited in US vs. Martina Rivera, GR NO. 16443, March 21,
1921)

What can you do against a theft you catch inside your home?
 Answer: It depends upon the circumstances. Four scenarios.
a)If the intruder is armed and assaults a person living in the house – you may attack (even kill)
the intruder.
b)If armed and has not yet attacked the person living inside the house – you may attack (even
kill) the intruder.
c)If not armed and assaults the person inside the house – you may attack (even kill) the intruder.
d) If intruder is not armed and does not assault the persons living in the house, you may attack
the intruder but not kill him. (Killing would be unreasonable) (People vs. Salatan, (C.A.) 69 O.G.
10134)

A person may defend his home even if there is no attack by the armed intruder against the
defender’s person. (People vs. Mirabiles, (CA 45 OG Sup, 5, 277) No need to verify if the theft is
armed or not before you can defend yourself.

SECOND REQUISITE: REASONABLE NECESSITY OF THE MEANS EMPLOYED TO

PREVENT AND REPEL IT:

HOW TO JUDGE THE ‘REASONABLE NECCESITY OF THE MEANS EMPLOYED TO PREVENT

OR REPEL IT”?

There is no ironclad rule in its application. It depends upon the circumstances of a particular case.
One who is assaulted often does not have the time nor sufficient tranquility of mind to think, to
calculate, and to choose which weapon to use. In emergency situation, human does not act upon
processes of formal reason but in obedience to the instinct of self-preservation When it is apparent
that a person has reasonably acted upon his instinct, it is the duty of the courts to sanction the act
and to hold the actor irresponsible in the law of consequences. (People vs. Lara, 58 Phil 153)

Reasonable necessity of the means employed does not imply material commensurability between the
means of attack and defense. What the law requires is rational equivalence, in the consideration
of which will enter as principal factors the emergency, the imminent danger to which the person
attacked is exposed, the instinct, more than the reason, that moves or impels the defense, and the
proportionateness thereof does not depend upon the harm done, but rests upon the
imminent danger of such injury. In emergencies of this kind, human nature does not act upon
processes of formal reason but in obedience to the instinct of self-preservation; and when it is
apparent that a person has reasonably acted upon this instinct, it is the duty of the courts to sanction
the act and hold the act irresponsible in law for the consequences.

In the instant case, there was an imminent danger of the lives of the petitioner and of his wife from
the unlawful attack of an enraged, drunken, and armed Pitalio. The gun in the bag of his wife, who
was beside him, afforded the petitioner the only reasonable means to ward off the attack. (Norman
Lacson vs. CA and People, G.R. NO. l-46485, Nov. 21, 1979, First Division)

What is a doctrine of rational equivalence :

It is settled that reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the law requires is rational
equivalence, in the consideration of which will enter the principal factors the emergency, the
imminent danger to which the person attacked is exposed, and the instinct, more than the
reason, that moves or impels the defense, and the proportionateness thereof does not depend
upon the harm done, but rests upon the imminent danger of such injury

-REPETITIOUS HACKING BY THE ACCUSED IS NO LONGER A NECESSARY MEANS TO REPEL

AGRESSION. InPeople v. Beltran, Jr.,  which also involves repetitious hacking by the accused
even after the aggressor had been neutralized, is especially instructive:

The act of appellant in repeatedly hacking Norman on his head and neck was not a reasonable
and necessary means of repelling the aggression allegedly initiated by the latter. As stated
earlier, no convincing evidence was presented to show that Norman was armed with an ice-
pick at the time of the incident. In fact, no ice-pick was found in the crime scene or in the
body of the victim. There was also no proof showing that Norman attempted to stab appellant
or tried to barge into the latter's house. Granting arguendo that Norman was armed with an
ice-pick, the repeated hackings were not necessary since he can overpower or disable Norman
by a single blow on non-vital portion/s of his body.
 
Again, as correctly observed by the OSG, had the appellant merely wanted to protect himself
from what he perceived as an unlawful aggression of Norman, he could have just disabled
Norman. When Norman fell on the ground, appellant should have ceased hacking
the former since the alleged aggression or danger no longer exists. By appellant's
own testimony, however, he hacked Norman with his bolo even when the latter
was already lying on the ground. It appears, therefore, that the means used by
appellant, which were simultaneous and repeated hackings, were adopted by him
not only to repel the aggression of Norman but to ensure the latter's death. In sum,
such act failed to pass the test of reasonableness of the means employed in
preventing or repelling an unlawful aggression. (ESPINOSA VS. PEOPLE, G.R. No.
181071, MARCH 15, 2010)

-Reasonable necessity depends upon the imminent danger of injury, not on the
harm actually done to the accused. Equally relevant is the time-honored principle:
Necessitas Non habet legem. Necessity knows no law.

Thus, a woman who being strangled and choked by a furious aggressor and rendered almost
unconscious by the strong pressure on her throat had no other recourse but to get hold of any
weapon within her reach to save herself from impending death. The principle that
the reasonable necessity of the means employed in self-defense does not depend upon the
harm done but rests upon the imminent danger of such injury . (U.S. vs. Paras, 1907, 9 Phil.
367) And so the fact that there was no visible injury caused on the body of the appellant
which necessitated medical attention, a circumstance noted by the trial court, is no ground for
discrediting self-defense; what is vital is that there was imminent peril to appellant's life
caused by the unlawful aggression of her husband. The knife tucked in her husband's belt
afforded appellant the only reasonable means with which she could free and save herself from
being strangled and choked to death. (People vs. Lara, 1925, 48 Phil. 153, 160)
There is nothing to prevent or repel if there is no unlawful aggression on the first place.

The person being attacked is not duty bound to expose himself to be wounded and killed. He has a
perfect and indisputable right to repel or prevent such danger even by wounding his adversary, if
necessary, to disable him completely so that he may not continue the assault.
Everyone has an instinct of self preservation and considers his life more important than others, so to
repel the attack, he may of necessity take a course of action or use means of defense.

BUT, in repelling or preventing the attack, the means that should be employed by the one defending
must be NECESSARY AND REASONABLE. Reasonableness of necessity depends upon the
circumstances.

EXAMPLES of reasonable necessity of the means employed:

-When there is no recourse but to use any weapon to save himself.

-When the policeman had to use his pistol to repel aggression with a knife. (People vs. Villar, (C.A.)
72 OG 7841.) Thus, it is well justified for the policeman to use his pistol to repel the unlawful attack
of the deceased because at that time he had no other weapon to use but his pistol with the
explanation that he intended only to shoot him on his arm but unfortunately, he hit him on the breast
when the latter motioned to thrust on him. (Stand-on-your -ground-when attack-rule) (Valcorza vs.
People, 30 SCRA 149)

- Place and occasion of the assault are considered. The place of incident is dark and uninhabited.
Thus, Mr. A heard a voice “Lie down and give me your money or else you will die.” The accused
acted immediately by discharging his pistol against the accused. Under the circumstances, A cannot
be expected to adopt less violent means of repelling of what he believed was an attack against his
life and property considering the place was dark and inhabited.

-But when the aggressor is disarmed and already losing strength due to loss of blood and has
manifested his refusal to fight, using a bolo against him is not justified.

THE TEST OF REASONABLENESS of the MEANS USED.

a) Nature and quality of weapons – Although dagger or knife is more dangerous than a club,
but the latter is reasonable if that is the only means available and that the person
assaulted could not coolly choose the less deadly weapon to repel the assault.

b) Physical condition, character and size. Thus, when the person defending himself was small
and his attacker is much bigger than him or stronger, striking him with a fist such person is
justified in using a knife.

c) Character of the aggressor is also considered as when he has a violent temperament,

troublesome, strong and aggressive, has criminal records, the use of reasonable means like
bolo in preventing his attack is justified.
NO REASONABLE NECESSITY:

-Using the same weapon after wrestling the same away from the aggressor or using a knife against
an aggressor using only his bare fists. Thus, the offender had already wrested the bolo away from
the victim’s hand and the latter did not anymore rush on him. Since the offender had already
complete control not only of the bolo but of the victim as well, it proves that at that precise point,
unlawful aggression had already ceased. There was no more need for the offender to hack him with
the bolo since the aggression had already ceased. (People vs. Ciria, 106 SCRA 381) Exception: But if
the victim continues to press on his attack and tries to obtain another weapon, the unlawful
aggression does not cease. Therefore, the necessity of self-defense does not also cease.

-Using a knife against an aggressor using only his bare fists. Except when the aggressor is of
superior strength. Montalbo, 56 Phil 443)

-Using a pocket knife against an aggressor who is unarmed. (People vs. Roxas, 58 Phil 733)
-Using a pocket knife against an aggressor using fists. (People vs. Montalbo, 56 Phil 443)

WHAT IS A REASONABLE MEANS? This means should be used for defense and not for attack.
This is not a mathematical calculation but “material commensurability” between the means of attack
and the defense. The imminent danger against the subject of the attack as perceived by the
offender and the instinct more than the reason that moves the defender to repel the attack. Thus,
using a .22 caliber pistol which under ordinary circumstances, maybe considered reasonable means
to repel an aggression with a piece of bolo and a piece of bojo. (People vs. Orencia, (C.A.) 58 O.G.
7085)

-reasonable means employed must be construed in favor of a law abiding citizens. Thus, when a
lawless person attacks on the streets or in the victim’s house, he assumes the risk of losing his life
from the self-defense from the firearm of the victim. (People vs. So, 5 C.A.R. 671)

-The number of wounds suffered by the victim determine whether or not the means employed were
reasonable. The presence of the large number of wounds inflicted on the victim clearly indicates a
determined effort on the part of the offender to kill his prey and belies the reasonableness of the
means adopted to repel or prevent an unlawful act of an aggressor as an element of self-defense.
( People vs. Arizala, 317 SCRA 244)

EXAMPLES OF REASONABLE MEANS TO REPEL ATTACK.

-Defender uses bolo against an aggressor also using bolo. (People vs. Tembrevilla, et; al., 44 Phil
517)
-Defender uses a pocket knife against an aggressor using a cane. (U.S. vs. Laurel. 22 Phil. 252)
-Defender uses a bolo against an aggressor hurling stones. (People vs. Aguilario (C.A. 56 O.G. 757)
-Aggressor is superior in strength.
-When the defender, who is cornered, uses a bolo, against the aggressor who is a bully. (People vs.
Sumicad, 66 Phil 643)
-When the defender uses a knife against 4 aggressors attacking with a fist and sticks. (People vs.
Ignacio, 58 Phil 858)

AS TO THE USE OF FIREARM:

-Use of revolver against an aggressor who is not armed. (People vs. Almendralejo, 48 Phil 268)
except when the aggressor is superior in strength. (People vs. Lara, 48 Phil 153)
-The police officer is justified in using his revolver against an aggressor with a knife. (Masipequina
vs. CA, 87 O.G. 3299, 176 SCRA 699)

Defense of person or rights does not necessarily mean killing the aggressor. But killing of
the unlawful aggressor may still be justified as long as the mortal wounds are inflicted at the time
when the elements of complete self defense are still present.

There is a rational necessity to employ means in the following: Using a knife by a woman
against the victim who just awakened her from sleep when the victim did not perform any act that
maybe construed as an attempt against her honor.

There is REASONABLE NECESSITY OF THE MEANS EMPLOYED if the person invoking self-
defense used a weapon or a manner equivalent to the means of attack used by the aggressor. The
reasonable necessity of the self-defense utilized by an accused is to defend himself "depends upon
the nature or quality of the weapon, the physical condition, the character, the size and
other circumstances of the aggressor; as well as those of the person who invokes self-
defense; and also the place and the occasion of the assault." 22 Moreover, the nature and
location of wounds are considered important indicators whether or not to disprove a plea of self-
defense. (People vs, Cristina Samson, G.R. No. 214883, Sept. 2, 2015, Second Division)

CIRCUMSTANCES BELIE SELF-DEFENSE:

- The nature and number of wounds found on the victim. (People vs. Gallego, 406 SCRA 6 (2003)
- The flight of the accused. (People vs. Gregorio, 255 SCRA 380 (1996), People vs. Castillo Sr., 400
SCRA 401, (2003)

THIRD REQUISITE: LACK OF SUFFICIENT PROVOCATION ON THE PART OF THE

PERSON DEFENDING HIMSELF:

Requirements under THIRD REQUISITE:

1. THERE IS NO PROVOCATION FROM THE ACCUSED.

2. EVEN IF THERE IS A PROVOCATION, IT WAS NOT SUFFICIENT.
3. EVEN IF THE PROVOCATION, IT MUST NOT COME FROM THE ACCUSED.

WHAT IS SUFFICIENT PROVOCATION? is any unjust or improper conduct or act of the victim
adequate enough to excite a person to commit a wrong, which is accordingly proportionate in
gravity."  The victim must have committed a prior act that incited or irritated the accused.  Likewise,
in order to be mitigating, the provocation must be sufficient and should immediately precede the act.
(Isidro Miranda vs. People, G.R. No. 234528, January 23, 2019)

TEST OF SUFFICIENCY OF PROVOCATION:

The defender must NOT have sufficiently provoked the aggressor.

-The defender commits the provocation but the provocation must NOT be sufficient.

This requires that the defender must be reasonably blameless. He or she must not have
antagonized or incited the attacker into launching an assault against the defender.

The provocation committed by the defender should not be the proximate cause or immediate cause
of the victim’s aggression.

The provocation given by the defender is lackingly disproportionate compared to the aggression
committed by the aggressor. But if the provocation given by the defender is sufficient, he cannot
claim complete self-defense.

Sufficient provocation as a requisite of incomplete self-defense is different from sufficient

provocation as a mitigating circumstance. As an element of self-defense, it pertains to its absence
on the part of the person defending himself; while as a mitigating circumstance, it pertains to
its presence on the part of the offended party. Besides, only one mitigating circumstance can arise
out of one and the same act. Assuming for the sake of argument that the blowing of horns,
cutting of lanes or overtaking can be considered as acts of provocation, the same were
not sufficient. The word "sufficient" means adequate to excite a person to commit a
wrong and must accordingly be proportionate to its gravity. Thus, Generoso passed him,
pulled over and got out of the car with his uncle. Tangan also stopped his car and got out. As the
Mirandas got near Tangan's car, Generoso loudly retorted, " Putang ina mo, bakit mo ginigitgit ang
sasakyan ko?" Generoso and Tangan then exchanged expletives. Tangari pointed his hand to
Generoso and the latter slapped it, saying, "Huwag mo akong dinuduro! Sino ka ba, ano ba ang
pinagmamalaki mo?"  Tangan countered, "Ikaw, ano ang gusto mo?"  With this, Tangan went to his
car and got his .38 caliber handgun on the front seat. The gun went off and Genereso was shot in
the stomach. Tangan claim self-defense. However, Generoso's act of asking for an explanation from
Tangan was not sufficient provocation for him to claim that he was provoked to kill or injure
Generoso. (People vs. CA and Tangan, G.R. No.103613, Feb. 23, 2001)

Provocation is however sufficient when it is proportionate to the aggression, that is, adequate enough
to impel one to attack the person claiming self-defense. (Nicolas Velasques, et. al. vs. People,
G.R No. 195021, march 15, 2017, Second Division)

EXAMPLES SUFFICIENT AGGRESSION:

-To challenge someone to come out of the house to fight to prove who is a better man.
-Insulting another thru the use of vulgar language.
-The accused tried to forcible kiss the sister of the deceased.
-when the defender provoked the victim by calling him, from his house, threw stones at the victim,
and provoked the victim to fight. (People vs. Valencia, 133 SCRA 82)
2. Any one who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by
affinity in the same degrees, and those by consanguinity within the fourth civil degree,
provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the provocation was given by
the person attacked, that the one making defense had no part therein.

DEFENSE OF RELATIVES:

The relatives that can be defended:

Spouse,
Ascendants
Descendants,
Legitimate, natural, adopted brothers and sisters, or relatives by affinity on the same
degree (parents in law, brother and sister in laws)
Relatives by consanguinity within the fourth civil degree.

JUSTIFICATION OF DEFENSE:

It is founded not only on humanitarian consideration, but also upon impulse of blood which
impels man to rush, in occasion of great perils, to rescue those who are close to them by ties of
blood. (Albert)

REQUISITES OF DEFENSE OF RELATIVES:

1. Unlawful aggression
2. Reasonable necessity of the means employed.
3. In case of provocation was given by the person attacked. The one making the defense had
no part therein.

Just like Self Defense, unlawful aggression is an indispensable requirement also.

There is a valid defense if the person defending had an honest belief that the victim is subject of an
unlawful aggression. This is a mistake of fact.

Reasonable necessity of the means employed is the same with Self defense.

Third requisite: Even if the person being defended is guilty of sufficient provocation,
provided the one defending had no part in the provocation, it is still justified.

For the defense of relatives may prosper even if the relative defended was the one who gave the
provocation towards the aggressor. However, defense of relative will not prosper if the relative
defended is guilty of unlawful aggression.
Reason: The effects of the victim giving provocation to his attacker does not extend or reach the
defender who took no part in the provocation because the latter was prompted by a noble or
generous sentiment in protecting and saving a relative.

What is meant by relative by consanguinity (within the 4 th civil degree? It refers to blood
relatives. Proximity of relationship is determined by the number of generations, and each generation
forms a degree (Art 963, Civil Code) Thus, a child is one degree remove from his father or mother, 2
degrees removed from his grandparents, 3 degrees removed from his uncles and aunties, and 4
degrees removed from his first cousins. A brother is 2 degrees removed form his own brother, 3
degrees removed from his nephews and nieces, 4 degrees removed from the children of his nephews
and nieces.

Is the brother of your wife included in the defense of relative? Yes. Relatives by affinity
within the same degree. A relationship by affinity arises from marriage and includes parent’s in law,
sons or daughter’s in law, and also brothers or sisters in law.

Defender must not be induced by revenge, resentment or evil motive. In the case of People vs.
Toring, G.R. No. l-56358, Oct. 26, 1990 , the Supreme Court did not grant accused Toring the benefit
of defense of relative.

“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. Toring himself admitted in court 30 as well as in his sworn statement 31 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 32 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.”

3. Anyone who acts in defense of the person or rights of a stranger, provided that the
first and second requisites mentioned in the first circumstance of this article are present
and that the person defending be not induced by revenge, resentment, or other evil
motive.

DEFENSE OF STRANGERS:

REQUISITES:

- Same requirements with Self Defense and Defense of relatives on Requisite Nos. 1 and 2.
There must also be an unlawful aggression by the victim and the means used to prevent or repel
must also be reasonably necessary.

- Who is a stranger? Includes any person. Basically, anybody. Anyone not mentioned as relatives in
par. 2 of Art. 11.
- Except for the third requisite: that the person defending be not induced by revenge,
resentment, or other evil motive.

- The stranger in defending the person being assaulted must actuated by a disinterested or
generous motive.

- He must have no resentment or other motive against the injured or deceased.

-What is important is the person defending must NOT BE INDUCED by revenge or resentment
as long as he entered in the defense of stranger out of generous motive to save him even if he has
an standing grudge against the victim.

-But if the accused acted from an impulse of resentment against the deceased, no defense of
stranger.

BASIS: What one may do in his defense, another may do for him. The ordinary man would
not stand idly by and see his companion killed without attempting to save his life.

Examples:

-When a barber comes to a rescue of a woman being attacked by her own husband. (People vs.
Valdez, 58 Phil. 31)

-When a person furnishes an old man being attacked by another with a weapon which the old man
uses against the offender. (U.S. vs. Subingsubing, 31 Phil 376)

-when a police officer who fires upon escaping prisoner who is attacking a fellow police officer. (U.S.
vs. Aviado, 38 Phil. 10)

THE UNLAWFUL AGGRESSION MUST NOT COME FROM THE STRANGER. The person defending a
stranger must find out who the aggressor was before undertaking the defense. (TOBES vs. CA, 366
SCRA 574 (2001) The stranger being defended includes not only his person but his rights as well
such as when the stranger being defended is being raped.

4. Any person who, in order to avoid an evil or injury, does an act which causes
damage to another, provided that the following requisites are present;

First. That the evil sought to be avoided actual exists;

Second. That the injury feared be greater than that done to avoid it;

Third.That there be no other practical and less harmful means of preventing it.

DOCTRINE OF STATE OF NECESSITY:

REQUISITES:
 1. There must be an evil sought to be avoided and it exists. (Not merely expected or
anticipated.)

2. There injury feared be greater than that done to avoid it;

3. That there be no other practical and less harmful means of preventing it.

-A state of necessity exists when there is a clash between unequal rights, the lesser right giving way
to the greater right. 
Aside from the 3 requisites stated in the law, it should also be added that the necessity must not be
due to the negligence or violation of any law by the actor.

-The person for whose benefit the harm has been prevented shall be civilly liable in proportion to the
benefit which may have been received.  This is the only justifying circumstance which provides for
the payment of civil indemnity.  Under the other justifying circumstances, no civil liability attaches. 
The courts shall determine, in their sound discretion, the proportionate amount for which law one is
liable

- In the eyes of the law, when a person acts to preserve his own life as against another life, his life
as far as he is concerned is more valuable than the life of another.

- The injury done will always be considered as lesser than that avoided.

EXAMPLE: A is driving his car carefully in a narrow road and suddenly a 6 x 6 truck cut his way. To
avoid the speeding truck so that he would not smash to it, he decides to swerve his car to the left
but it is a precipice, so he turns to the right but there is a man standing. He is forced to choose
between his life and the man, if he chooses to swerve to the right, he would die in the precipice, if
he chooses to turn to the right, he would hit the man but he will survive. If the said man dies, his
act is justified under this section.

- The evil to be avoided is the passing truck. The danger actually exists.
- The injury feared is his own death and because of instinct of self preservation.
- The injury to be avoided is greater that the injury upon the man.
- No practical or less harmful means available to prevent the injury at that time, so choosing to run
over the man is justified.

-In the eyes of the law, when a person acts to preserve his life as against another life, his life is
more valuable than the life of another as far as he is concerned. Hence, the injury done will always
be considered lesser than that avoided.

-The greater evil should not be brought by the negligence of the person avoiding the injury.

-The person must not be violating a law.

-The person should be avoiding any evil, otherwise he cannot claim this paragraph.

EXAMPLE:
-Fire breaks out, to prevent it to spread, the neighbor destroyed the next building.

-During the typhoon, to lighten the load to prevent sinking, the captain ordered the goods jettisoned
or be thrown on the water.

-Bumping into a parked bus to avoid a collision with another car. (People vs. Panganiban, 22 CAR
(2S) 802(

THERE IS A CIVIL LIABILITY UNDER THIS PARAGRAPH only insofar as the person benefits from the
act. . This is borne by the person who benefited from the injury. The civil liability arises from the
benefit derived out of the state of necessity and not from the ACT. It should be shouldered from the
one benefited by the act.
JURISPRUDENCE:

Anita Tan is the owner of the house of strong materials in the City of Manila. On May 3, 1949, the
Standard Vacuum Oil Company ordered the delivery to the Rural Transit Company at its garage at
Rizal Avenue Extension, City of Manila, of 1,925 gallons of gasoline using a gasoline tank-truck trailer.
The truck was driven by Julito Sto. Domingo, who was helped Igmidio Rico. While the gasoline was
being discharged to the underground tank, it caught fire, whereupon Julito Sto. Domingo drove the
truck across the Rizal Avenue Extension and upon reaching the middle of the street he abondoned
the truck with continued moving to the opposite side of the first street causing the buildings on that
side to be burned and destroyed. The house of Anita Tan was among those destroyed and for its
repair she spent P12,000.

As an aftermath of the fire, Julito Sto. Domingo and Imigidio Rico were charged with arson through
reckless imprudence in the Court of First Instance of Manila where, after trial, both were acquitted,
the court holding that their negligence was not proven and the fire was due to an unfortunate
accident. Anita Tan then brought the action against the Standard Vacuum Oil Company and the Rural
Transit Company;, including the two employees, seeking to recover the damages she has suffered for
the destruction of her house.

Is Anita Tan entitled to the payment of the damages for the destruction of her house?

Ruling: Yes, Anita is entitled to the payment of damages. It appearing that the damage caused to the
plaintiff was brought about mainly because of the desire of driver Julito Sto. Domingo to avoid
greater evil or harm, which would have been the case had he not brought the tank-truck trailer to the
middle of the street, for then the fire would have caused the explosion of the gasoline deposit of the
company which would have resulted in a conflagration of much greater proportion and consequences
to the houses nearby or surrounding it. It cannot be denied that this company is one of those
for whose benefit a greater harm has been prevented, and as such it comes within the
purview of said penal provision. The acquittal of the accused cannot, therefore, be deemed a
bar to a civil action against this company because its civil liability is completely divorced
from the criminal liability of the accused. The rule regarding reservation of the right to
file a separate civil action does not apply to it. (Tan vs. Standard Vacuum Oil Co, et
al, )91 Phil 672)

-Thus, if the accused did not gain anything form the state of necessity, his not civilly liable.

-IT IS NOT AN ACT WHICH IS THE BASIS OF CIVIL LIABILITY BUT THE BENEFIT HE DERIVES.
-it is not correct to say that this is a justifying circumstance that imposes civil liability.

-The civil liability here does not arise from the act but only from the BENEFIT derived by the person
out of necessity.

-This is based on the principle that “No person shall unjustly enrich himself at the expense of
another.”
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right
or office.

TWO REQUISITES in this circumstance:

1. The accused acted in the performance of a duty or in lawful exercise of his right or office.

2. The injury caused or the offense committed be the necessary consequence of the due
performance of duty or lawful exercise of such right or office.

For example, a police officer is making a lawful arrest, he 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 (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612).

The doctrine is stated in the Rules of Court thus: "No unnecessary or unreasonable force shall be
used in making an arrest, and the person arrested shall not be subject to any greater restraint than is
necessary for his detention." (Rule 109, sec. 2, par. 2).

And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that
accused s was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace
of the community, but these facts alone constitute no justification for killing him when in effecting his
arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep.
(U.S. vs. Donoso, 3 Phil., 234, 242).

TWO REQUISITES MUST CONCUR TO BE FULLY JUSTIFIED:

There are two requisites in order that the circumstance may be taken as a justifying one:

(a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and

(b) 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.

If only the first requisite is present — when the accused police officer has acted in the performance
of a duty but the second requisite is wanting for the crime by them committed is not the necessary
consequence of a due performance of their duty, the police officer is not completely justified under
Art 11, par. 5 of RPC. According to article 69 of the Revised Penal Code, the penalty lower by one or
two degrees than that prescribed by law shall, in such case, be imposed. (People vs. Oanis, G.R. No.
L-47722, July 27, 1943)

When killing is not in furtherance of a duty:

SC Case: Peter and John, both police officers, went to the house of Rommel to serve the warrant of
arrest. Rommel was wanted for his involvement in a robbery case. Peter called Rommel to come out
but the persons inside the house answered back saying that Rommel was not home. Shortly
thereafter, John saw Mike, nephew of Rommel, with a bolo near Peter. John shot Mike and died. Is
John liable of homicide for killing Mike? Can John claim that killing was done in the fulfillment of a
lawful duty?

Ruling: John is liable for homicide and he cannot claim fulfillment of a lawful duty. For this justifying
circumstance to be appreciated, the following must be established: (1) that the offender acted in the
lawful exercise of a right or a duty; and (b) that the injury or offense committed be the necessary
consequence of the due performance of such right or office.

In this case, the mission of Peter and John was to effect the arrest of Rommel and 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 Mike was in furtherance of such
duty. No evidence was presented that Mike attempted to prevent John and Peter from arresting
Rommel. There was in fact no clear evidence as to how Mike was shot. Indeed, as already stated,
any attempt by Mike to arrest the wanted Rommel was pointless as the latter was not in his house.
As regards the second requisite, there can be no question that the killing of Mike was not a necessary
consequence of the arrest to be made on Rommel. (John Angcaco vs. People, G.R. No. 146664,
Feb. 28, 2002, J. Mendoza, Second Division)

There is a fulfillment of a duty but the fatal would was not dur to performance of a duty
or lawful exercise of a right or office.

SC Case: In the morning of 22 December 1995, Wapili was having a high fever and was heard
talking insensibly to himself in his room. His brother-in-law, Leydan, convinced him to come out of his
room and talk to him, but Wapili told Leydan that he could not really understand himself. After a
while, Wapili went back to his room and turned off the lights. Moments later, the lights went on again
and Leydan heard a disturbance inside the room, as if Wapili was smashing the furniture. Unable to
pacify Wapili, Leydan called Pastor Bonid of the Alliance Church to help him "pray over" Wapili, but
they could not enter the latter's room as he became wild and violent. Suddenly, Wapili bolted out of
his room naked and chased Leydan. Thereafter, Leydan with the aid of two (2) of his neighbors
attempted to tie Wapili with a rope but was unsuccessful as Wapili was much bigger in built and
stronger than anyone of them. Wapili, who appeared to have completely gone crazy, kept on
running without any particular direction.

In same morning, SPO1 Ulep together with team arrived at the scene on board a police service
jeep. All armed with M-16 rifles, alighted from the jeep when they saw the naked Wapili approaching
them. Police claimed that Wapili was armed with a bolo but it was disputed. SPO1 Ulep fired a
warning shot in the air and told Wapili to put down his weapons or they would shoot him. But Wapili
retorted "pusila!" ("fire!") and continued advancing towards the police officers. When Wapili was only
about two (2) to three (3) meters away from them, SPO1 Ulep shot the victim with his M-16 rifle,
hitting him in various parts of his body. As the victim slumped to the ground, SPO1 Ulep came closer
and pumped another bullet into his head and literally blew his brains out.

Issue: Is SP01 Ulep liable to the death of Wapili? Can SP01 Ulep claim a defense of performance of
lawful duty and the killing was a necessary consequence of that lawful duty?

Ruling: Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The
Revised Penal Code 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.

SP01 Ulep and the other police officers involved originally set out to perform a legal duty: to render
police assistance, and restore peace and order at the subdivision where the victim was then running
amuck. The victim threatened the safety of the police officers by menacingly advancing towards
them, notwithstanding Ulep’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 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, while SP01 Ulep is to be commended for promptly responding to the call of duty when he
stopped the victim from his potentially violent conduct and aggressive behavior, he 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 accused-appellant, 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. Once he saw the victim he fired fell to the
ground and in that position, shooting him again to the head causing the brain to scatter on the
ground, there was no more necessity for the accused to pump another shot on the back portion of
the victim's head. (People vs. SP01 Ulep, G.R. No. 132547, Sept. 20, 2000)

EXAMPLES OF ACTS JUSTIFIED UNDER THIS CIRCUMSTANCE:

Fulfillment of a duty: A policeman detailed to guard the detained prisoner. The latter through
violence escapes and despite the warning shots, he did not stop. The police guard shot him,, he is
entitled to an acquittal under this section.
Shooting an offender who refused to surrender is justified. The police is not however justified to use
unnecessary force or treat the victim with wanton violence or resorted to a dangerous means to
effect arrest. (Rule 113, Sec. 2, par. 2)

WHAT IS THE DIFFERENCE OF SELF-DEFENSE AND FULFILLMENT OF DUTY

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.
SC CASE: A robbery occurred in the Municipality of Penaranda, Nueva Ecija, in Sept. of 1992. The
police authorities later apprehended three suspects among them, accused Valino. The police
recovered most of the stolen items except for a flower vase and a small radio. The police asked the
three suspects where these two items were and accused Valino replied that the items were in his
house. To retrieve the missing item, the police brought Valino to accompany them in recovering the
item.

Five fully armed policemen in uniform escorted Valino to his house to recover the missing flower vase
and radio. The policemen and Valino were aboard a police an Isuzu pick-up built like an ordinary
jeepney.

Inside the jeep, he was seated between two police officers but was not handcuffed. Just after the
jeep had crossed the PNR railway bridge and while the jeep was slowly negotiating a bumpy and
potholed road, Valino suddenly grabbed a police officer’ M16 Armalite and jumped out of the jeep.
The police officer shouted hoy! when Valino suddenly took the M16 Armalite.

A police officer by the name of Cabanlig acted immediately, and 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 who did not fire any shot died on
the spot. Cabanlig admitted shooting Valino but he justified the shooting as an act of self-defense
and performance of duty.

ISSUE: Is police Cabanlig liable for the death of Valino? Is Cabanlig justified under the
circumstance to shoot the escaping Valino with the stolen M16 rifle by claiming self-
defense and performance of duty?

RULING:

According to the Supreme Court, police officer Cabanlig must be acquitted for his act of shooting
Valino for it is justified under the justifying circumstance of PERFORMANCE OF A LAWFUL
DUTY and not under SELF DEFENSE.

The High Court declared that 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. The elements of self-defense are as follows: 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.
On the other hand, the requisites of fulfillment of duty are:
(a) The accused acted in the performance of a duty or in the lawful exercise of a right or office;
(b) 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.

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

unlawful aggression from the victim is not a requisite.

In the case of People vs. de Lima, (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 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 the case at bar, since police officer Cabanlig was in the performance of duty as policeman when
he escorted Valino, an arrested robber, to retrieve some stolen Police Cabanlig used necessary force
to prevent Valino from escaping and in protecting himself and his co-accused policemen from
imminent danger from Valino who was carrying a powerful weapon, M16 armalite.

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. (SPO2 RUPERTO CABANLIG vs. , SANDIGANBAYAN and
OFFICE OF THE SPECIAL PROSECUTOR , G.R. No. 148431 (July 28, 2005) FIRST
DIVISION)

LAWFUL EXERCISE OF A RIGHT: THE DOCTRINE OF WELF-HELP

DOCTRINE OF SELF HELP (Art. 429 of the Civil Code. )

“Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his
property”. (n)

-Under this par., it is not necessary that there is an unlawful aggression against the person
charged with the protection of the property. (People vs. Narvaez, 121 SCRA 389)

JURISPRUDENCE:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar
Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the
land of George Fleischer, father of deceased Davis Fleischer. The place was in the boundary of the
highway and the hacienda owned by George Fleischer. This is located in the municipality of Maitum,
South Cotabato. At the place of the fencing is the house and rice drier of appellant Mamerto
Narvaez .

At that time, appellant (Narvaez) was taking his rest, but when he heard that the walls of his
house were being chiselled, he arose and there he saw the fencing going on. If the fencing would go
on, appellant would be prevented from getting into his house and the bodega of his ricemill. So he
addressed the group, saying 'Pare, if possible you stop destroying my house and if possible we will
talk it over what is good,' addressing the deceased Rubia, who is appellant's compadre. The
deceased Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant apparently
lost his equilibrium and he got his gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia
ran towards the jeep, and knowing there is a gun on the jeep, appellant fired at Rubia, likewise
hitting him. Both Fleischer and Rubia died as a result of the shotting. 

RULING: The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as long as there is a
possessor who objects thereto. He who believes that he has an action or a right to deprive another
of the holding of a thing must invoke the aid of the competent court, if the holder should refuse to
deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed
therein he shall be protected in or restored to said possession by the means established by the laws
and the Rules of Court (Articles 536 and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellant's house, nor to close his accessibility to the highway while he was pleading with them to
stop and talk things over with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate

and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, which provides: there was an actual physical invasion of appellant's
property which he had the right to resist, pursuant to Art. 429 of the Civil Code of the
Philippines

Art. 429. The owner or lawful possessor  of a thing has the right to exclude any person from
the enjoyment and disposal thereof.  For this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance

of self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal
Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance
was disproportionate to the attack. Because if there is an unlawful aggression against the person
charged with the protection of the property, it is a defense of property under par. 1, Art. 11,
applies.

LAWFUL EXERCISE OF SUCH OFFICE:

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.

Example: Executioner in New Bilibid prison.

A surgeon who amputate the leg to save the injured from gangrene is not liable for crime of
mutilation.

EXAMPLE>>> A policeman who is in civilian uniform fought back with the Snatcher who stabbed
him. The policeman drew his revolver, the theft ran away. If he were not a police officer, he is not
supposed to run after him because there is no more unlawful aggression, killing him would not be
justified.

Since he is a police officer, under par. 5 should he fire warning shots after being ignored by the
snatcher and he fires at him, thereby killing him, his act is justified under Fulfillment of a duty.

The police officer acting in the fulfillment of a duty may appear to be an aggressor, but his
aggression is lawful, being necessary to fulfill his duty.

OTHER EXAMPLES of ART. 11, PAR. 5 -

1. When an NBI agent stops a person from shooting and discharging his gun in public, and in
the process, kills the victim. (People vs. Cabrera, 100 SCRA 424) – Fully Justified.
2. Shooting the victim who puts his hand in his pocket on the mere suspicion that the victim is
armed. (not justified) People vs. Tan, 73 SCRA 288)

WHAT HAPPENS IF ONLY THE 1ST REQUISITE IS PRESENT AND THE 2ND REQUISITE IS
ABSENT? Complete justification will not prosper. The justification becomes incomplete one thereby
converting it into a mitigating circumstance under Art 13 and 69.

DEGREE OF PROOF REQUIRED: Clear and convincing evidence. (People vs. Tan, 73 SCRA 288)

6. Any person who acts in obedience to an order issued by a superior for some lawful
purpose.

Four requisites:

1. Superior officer gives order.

2. The Order must be lawful.
3. The subordinate obeys and performs an act in obedience to such order.
4. The act of obedience is within the limitations of the law.
The order must be for some lawful purpose

Obedience to an order of a superior give rise to exemption from criminal liability only when the order
is for some lawful purpose. Sergeant Margen's order to have the deceased tortured was illegal, and
appellant was not bound to obey it. (People vs. Margen,  G.R. No. L-2681, March 30, 1950)

The means used to carry out the order is lawful

● Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by
a superior for some lawful purpose does not incur any criminal liability. For this justifying
circumstance to apply, the following requisites must be present: (1) an order has been issued by
a superior; (2) such order must be for some lawful purpose; and (3) the means used by
the subordinate to carry out said order is lawful. Only the first requisite is present in this case.

While the order for Adalim's transfer emanated from petitioner Ambil, Jr., who was then Governor,
neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In
his capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor
Adalim at the provincial jail and, unarmed with a court order, transported him to the house of
petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17 (1)of
the RPC. (Ambil, Jr. vs. Sandiganbayan, G.R. No. 175457, July 6, 2011)

Even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact
committed in good faith.

Tabuena 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). However, the unlawfulness of the MARCOS Memorandum was being
argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential
directive reveals a liability of only about P34.5 Million. xxx Granting this to be true, it will not
nevertheless affect Tabuena's good faith so as to make him criminally liable. What is
more significant to consider is that the MARCOS Memorandum is patently legal (for on its
face it directs payment of an outstanding liability) and that Tabuena acted under the
honest belief that the P55 million was a due and demandable debt and that it was just a
portion of a bigger liability to PNCC. (Tabuena vs. Sandiganbayan,  G.R. Nos. 103501-03,
February 17, 1997)

-The subordinate is not liable for carrying out an illegal order of his superior, if he is not aware of the
illegality of the order and that he is not negligent. ( (Tabuena vs. Sandiganbayan,   G.R. Nos. 103501-
03, February 17, 1997)
EXAMPLES OF CASES WHERE THE ORDEWR GIVEN BY THE SUPERIOR IS ILLEGAL OR NOR FOR
LAWFUL PURPOSES:

1. Order to execute another -illegal. (People vs. Moreno, 77 Phil. 548)

2. Order to falsify a document-illegal. (People vs. Barroga, 54 Phil 247) -When the order is not
for a lawful purpose, the subordinate who obeyed it is criminally liable. Example:
Accountant who falsified the entry upon the instruction of his employer is liable.
3.
4. Order to torture another person is illegal. (People vs. Rogado, 106 Phil 816)
5. Obeying an order to torture another is illegal. (People vs. Margen, 85 Phil. 839)

ADDITIONAL JUSTIFYING CIRCUMSTANCES:

-R.A. 9262 “Known as Anti Violence against Women and Children –

Sec. 26. Battered Woman Syndrome as a Defense. – Victim-survivors who are found by
the courts to be suffering from battered woman syndrome do not incur any criminal and
civil liability notwithstanding the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code.

In the determination of the state of mind of the woman who was suffering from battered
woman syndrome at the time of the commission of the crime, the courts shall be assisted
by expert psychiatrists/ psychologists.

Sec. 26. A woman suffering from a battered woman syndrome. A battered woman who killed a
husband batterer does not incur criminal liability. The mere sight of the husband batterer became
synonymous with unlawful aggression. Actual physical aggression is not required. The accused
however must be must be found to be suffering from this syndrome.

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman.

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve.
In the case of People vs. Marivic Genosa, G.R. No. 135981, January 15, 2004, the Supreme
Court declared that the existence of the syndrome in a relationship does not in itself establish the
legal right of the woman to kill her abusive partner. Evidence must still be considered in the context
of self-defense. From the expert opinions discussed earlier, the Court reckons further that crucial to
the BWS defense is the state of mind of the battered woman at the time of the offense. She must
have actually feared imminent harm from her batterer and honestly believed in the need to kill him in
order to save her life. Settled in our jurisprudence, however, is the rule that the one who resorts to
self-defense must face a real threat on one's life; and the peril sought to be avoided must
be imminent and actual, not merely imaginary.

“Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts,
however, she is not entitled to complete exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost.
The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation
that broke down her psychological resistance and self-control. This "psychological paralysis" she
suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that
she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid
emotional and mental state, which overcame her reason and impelled her to vindicate her life and
her unborn child's.”

-To be declared as such, the spouses must go through the battering cycle at least twice.