Republic of the Philippines REGIONAL TRIAL COURT 11th Judicial Region Branch 8, Davao City PEOP E O!

"#E P#$ $PP$%E&, Plaintiff /versus/ RO3ER B((4 (cussed 5/////////////////////////////////////////5

CR$'$%( C(&E %O) *1+,-./*0 !OR1 #o2icide

MEMORANDUM
For the Defense So husbands should love their wives as their own bodies. He who loves his wife loves himself. nourishes and cherishes it In an impulse of defending a helpless, dearly loved wife from an impending bolo attack, accused-husband shot the aggressor. (CC6&ED, through undersigned counsel, unto this #onorable Court, 2ost respectfully sub2its the follo7ing 2e2orandu2, to 7it1 STATEMENT OF FACTS "he accused Roger Baay is charged of #O'$C$DE based on an $nfor2ation filed by Prosecutor $ 3iovanni R) 'orales dated (ugust 1, +**0, alleging that1 On or about June 2 , 2!!", in the #ity of $avao, %hilippines, and within the &urisdiction of the 'onorable #ourt, the abovementioned accused, armed with a shotgun with intent to kill, willfully, unlawfully and feloniously shot with the same weapon one (uben %adilla, thereby inflicting upon the latter in&uries, which caused his death.) October 1-, +**0, the trial of the case co22enced) Prosecution presented t7o 8+9 7itnesses, na2ely1 819 E2ee :) Padilla, husband of the alleged victi2, and 8+9 (ysac Dalangin, a neighbor) For no one hates his own flesh but rather

"he evidence of the &tate revolved 2ainly on the testi2ony of the above2entioned t7o 7itnesses) E2ee Padilla testified that1 her husband arrived ho2e and 7as so angry due to the alleged encroach2ent on their property by their neighbor, the Baay;s< she as=ed her husband to get the bolo in the garden 7ith the intention of diverting the latter;s attention to cal2 off his anger< she heard her husband shouting and stor2ing to7ards the Baay;s< and that in the act of going out to pacify her husband, she heard a gunshot and eventually sa7 her husband lying on the ground 7ith Roger and Ella Baay standing outside the door7ay of their house 7ith the for2er holding a shotgun) >itness (ysac Dalangin further testified and described the incident and the circu2stances leading to the death of the deceased Ruben Padilla) On the other hand, the accused Roger Baay denied the accusation and invo=ed the ?ustifying circu2stance of a defense of a relative, his spouse Ella Baay in this case, under (rticle 11, paragraph + of the Revised Penal Code) presented t7o 8+9 7itnesses including hi2, the other one is his spouse Ella Baay) #e

ISSUES 1) >hether or not the Prosecution had established that the accused is guilty of the cri2e of ho2icide beyond reasonable doubt) +) >hether or not the accused acted in defense of a relative)

DISCUSSIONS On the First Issue. "he Prosecution failed to prove the guilt of the accused for the cri2e of ho2icide beyond reasonable doubt) The evidence of the State failed to convincingl and s!fficientl "rove #e ond reasona#le do!#t that the a#ove acc!sed $illf!ll % !nla$f!ll felonio!sl &illed% !sing a shotg!n% the deceased R!#en 'adilla( and 6pon the

Prosecution;s direct e5a2ination of the surviving spouse of the deceased, E2ee :) Padilla, the latter even testified that she did not act!all see ho$% and !nder $hat "artic!lar circ!)stances% her h!s#and $as shot(

"hus, Judge Ca@ete as=ing1 A1 (1 A1 (1 A1 (1 A1 (1 A1 (1 A1 (1 Do you =no7 the circu2stances of his deathB 4es, 4our #onor) #o7 did he dieB #e 7as shot, 4our #onor) #e 7as shot 7ith 7hatB >ith a shotgun) #o7 did you =no7 thisB $ 7as 7ithin the vicinity 7here the incident happened) 4ou 2ean, you did see the incidentB $ heard the gunshot, 4our #onor) *o! did not see+ Not in the act% o!r ,onor(

Moreover% the testi)on of A sac Dalangin d!ring his direct e-a)ination f!rther "roved f!tile and ins!fficient to convict the acc!sed for the cri)e of ho)icide( #is testi2ony even failed to corroborate the Prosecution;s atte2pt to establish the ele2ents of the felony for 7hich the accused is charged) $n order to convict a person of the cri2e of ho2icide, the follo7ing ele2ents 2ust concur1 819 that a person 7as =illed< 8+9 that the acc!sed &illed hi) $itho!t an .!stif ing circ!)stance/ 8,9 that the accused had the intention to =ill, 7hich is presu2ed< and 8-9 that the =illing 7as not attended by any of the Cualifying circu2stances of 2urder, or by that of parricide or infanticide) (s a 2atter of fact, on so2e points of his testi2ony, said $itness e-"lained to the co!rt the circ!)stances and events leading to the death of the deceased $hich !lti)atel "!r"orted to #e an act in defense of a s"o!se )ade # the acc!sed% $hich is a .!stif ing circ!)stance% 7hen the latter sa7 the unla7ful aggression perpetrated by the deceased) "hus, City Prosecutor Dave ao as=ing<

A1 (1 $rist( A1 (1 A1 (1

"he bolo 7as pointing do7n7ards, 7as it al7ays the caseB %o, it $as onl raised $hen R!#en 'adilla gra##ed Ella0s

During their argu2ent, 'rs) Baay reCuested Ruben Padilla to 4es) >hat happened during the argu2entB Ella tried to return to their house but Ruben Padilla grabbed

get a7ay 7ith the bolo, rightB

her 7rist and in so doing, Ella lost her balance and fell on the ground) DDDDD) A1 happened ne5tB (1 (fter Ella fell on the ground, $ sa7 a shotgun protruding fro2 the door of the Baay;s) A1 (1 "henB "hen, after that, $ heard a shot) >hen 'rs) Baay fell on the ground in their house, 7hat

!urther2ore, the credi#ilit of the $itness A sac Dalangin is )arred # !nrelia#ilit and irreg!larit $hen his state)ents #efore the o"en co!rt contradicted that of his affidavit as sho7n during his cross/e5a2ination by (tty) Ryan ocsin, to 7it1 A1 hearB (1 A1 your affidavitB (1 *hat it was at this &uncture that I saw (oger +aay peering from the door &ust behind, suddenly appeared at their doorway and shot (uben %adilla with his shotgun.) (t that 2o2ent, $ heard t7o shots) "7o shotsB (gain, can you please read the 8 th paragraph of On that fateful day, 'r) >itness, ho7 2any shots did you

(tty) ocsin1

Ma

$e re1!est this ,onora#le Co!rt% *o!r

,onor% that it #e )ade on record that the $itness said he heard t$o shots and according to his affidavit% he onl heard a single shot( %o further Cuestions, your #onor) Judge Ca@ete1 Record on thatD

(pparently then, the evidence of the Prosecution did not sufficiently, effectively and convincingly proved the guilt of the accused beyond reasonable doubt) 'rosec!tion0s evidence relied chiefl on the testi)on of their t$o $itnesses2 that of the $ife $ho did not even act!all see the circ!)stances leading to the shooting incident% and that of a neigh#or $hose testi)on even "!r"orted the .!stif ing circ!)stance of a defense of a relative( ,ence% for fail!re of the 'rosec!tion to "rove g!ilt of ,o)icide #e ond reasona#le do!#t% the acc!sed )!st #e ac1!itted(

On the Second Issue. The acc!sed acted in a la$f!l defense of a relative , his beloved spouse Ella Baay in this present case) !or the Defense, the testi2ony of the accused hi2self and that of his 7ife Ella Baay plus that e5pressed in the testi2ony of (ysac Dalangin adeCuately established that indeed, the g!nfire directed on the deceased R!#en 'adilla $as not deli#eratel and )alicio!sl intended #!t $as )eant to defend and "rotect the life of the acc!sed0s #eloved $ife( "he Defense consistently and adeCuately invo=ed and proved the defense of relative by sho7ing, through the testi2onies of 7itnesses, the concurrence of the follo7ing reCuisites1 819 unla7ful aggression by the victi2< 8+9 reasonable necessity of the 2eans e2ployed to prevent or repel it< and 8,9 the person defending be not induced by revenge, resent2ent or other evil 2otive) 1 "he first reCuisite is indispensable) There can #e no self3defense !nless it is "roven that there had #een !nla$f!l aggression on the "art of the "erson in.!red or &illed # the assailant( If there is no !nla$f!l aggression% there is nothing to "revent or re"el(+
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#abuslay vs. %eople, ,-. /#(0 2,., /eptember 1!, 2!!2 %eople v. 3ala44ab, ."! /#(0 .21 5. 6678 Ortega v. /andiganbayan 5.

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$n addition, for unla7ful aggression to be appreciated, there 2ust be an act!al% s!dden% !ne-"ected attac& or i))inent danger thereof , and not 2erely a threatening or inti2idating attitude, and the accused 2ust present proof of positively strong act of real aggression) - Unla$f!l aggression )!st #e s!ch as to "!t in real "eril the life or "ersonal safet of the "erson defending hi)self or of a relative so!ght to #e defended and not an i)agined threat ) "he follo7ing testi2ony of Roger Baay sho7ed circu2stances sufficient to create in the 2ind of the accused that there had been an unla7ful aggression or that an unla7ful aggression 7as about to be co22itted by the deceased against his 7ife ?ustifying the application of reasonable 2eans to prevent or repel the sa2e1 During the direct e5a2ination conducted by (tty) ocsin1 DDDDD)) A1 happened ne5tB (1 >hen $ 7ent bac= to the place 7here they 7ere arguing, I sa$ ) $ife #eing gra##ed # Mr( 'adilla, and of course, $ love 2y 7ife so 2uchE (t that instance, I sa$ R!#en 'adilla $ith his #olo at his right hand as if he0s going to stri&e ) $ife( A1 (1 DDDDD)) A1 $h (1 D One last Cuestion 'r) >itness, could you tell the Co!rt 4eca!se I $as so afraid that he is going to stri&e ) $ife o! shot Mr( R!#en 'adilla+ &o you 2ust be terrifiedB $ 7as really terrified seeing alone the act of 'r) Padilla) &o you 7ent to your roo2 and got your shotgun, and 7hat

$ith his #olo $hen he gra##ed her and she is ver hel"less( During the cross/e5a2ination 2ade by (tty) 'orales, the accused further testified the follo7ing1 A1 &o 'r) >itness, you got your shotgun for the fear that the victi2 2ight hac= your 7ife, is that rightB
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%eople v. %asco, Jr., supra8 %eople v. (ey, .-2 /#(0 ., 5. 6 7 %acificar v. #ourt of 0ppeals .22 /#(0 -." 5. 6178 %eople v. 09uiatan, .21 /#(0 2!. 5. 6178 %eople v. 09uino, .2, /#(0 612 5. 617.

(1 A1 (1

4es) &o there is no real dangerB "here 7as because he 7as carrying the bolo and $ 7as really

afraid that he;s going to stri=e 2y 7ife 7ith that bolo) "he purpose of getting 2y shotgun is ?ust to prepare 2yself if ever he 7ill really stri=e 2y 7ife) DDDDDDD A1 (1 >hen your 7ife fell, 7hat did you doB I shoot R!#en 'adilla #eca!se I $as afraid that Mr( R!#en $ife $ith his #olo #eca!se at that instance% he $as

'adilla $ill stri&e )

holding the #olo $ith his right hand as if he is going to stri&e ) $ife D DDDDDDD) A1 (1 >hat 7as your intention in getting the shotgunB M intention $as .!st to "re"are ) self in the event that

Mr( 'adilla $ill do so)ething to ) $ife or to )e so $ thought $;2 e5pecting the 7orst that 7ill happen ?ust to "rotect o!rselves but I have no intention of &illing hi)( DDDDDDD A1 hi2B (1 I didn0t $arn hi) #eca!se $hen I $ent #ac& and $hen I sa$ ) $ife fell on the gro!nd% I $as reall terrified( Court1 4ou did not 7arn hi2B (1 grabbing 2y 7ife) DDDDDD)) Court1 (lright, at that very 2o2ent 7hen you pulled the trigger and shoot 'r) Padilla, you 7ould say that, 7here is your 7ife particularlyB (1 &he 7as grabbed by 'r) Padilla) 4es, 4our #onor because he 7as holding a bolo and 7as 'r) >itness, you did not 7arn 'r) Padilla before shooting

Court1 %o, at the 2o2ent you sCueeFed the trigger of your shotgun, your 7ife 7as in 7hat positionB (1 &he;s on the ground ?udge)

Court1 (t this particular ti2e, $hen alread standing+ (1 hand(

o! shot 'adilla% $as he

,e $as standing gra##ing ) $ife $ith a #olo in his right

"he foregoing testi2onies of the accused Roger Baay repeatedly e5pressed his i22ense fear and apprehension that the deceased Ruben Padilla 7ill 2ost li=ely hac= his 7ife 7ho 7as on the ground 7ith the for2er holding the bolo in an up7ard position 7hile grabbing Ella;s 7rist) his dear 7ife) >hen the deceased raised his bolo 7hile grabbing the 7rist of the 7ife of the accused, auto2atically the accused thought the for2er 2ight stri=e his helpless 7ife) #ence, before any in?ury 7ould be inflicted upon Ella, the accused, 7ithout a second thought and 7ith the intention of protecting his 7ife, shot the deceased) "his fact 7as even corroborated by the testi2ony of Ella Baay during the direct e5a2ination of (tty) u2batan, to 7it< A1 (1 A1 ti2e to ti2eB (1 2e) A1 (1 A1 doB (1 >hen $ tried to go bac= inside the house, he grabbed 2y hand and put 2e 7ith such force that $ cri2ped and fell) A1 (1 (nd then 7hat happened ne5tB (t that 2o2ent $ heard a shot) &o you 7ere scaredB 4es) >hen you are about to get bac= inside the house, 7hat did he (t that ti2e, all $ could thin= 7as that he 7ill use it against >hat 7as he doing 7ith the bolo 7hile it 7as in his handB During our altercation, he 7as raising it fro2 ti2e to ti2e) >hat 7ere you thin=ing 7hen Ruben 7as raising the bolo fro2 &uch a scenario 7ill undoubtedly create in the 2ind of a loving husband tre2endous danger and fear for the life of

Clearly then, the acc!sed sensed an i))ediate and i))inent &ind of a threatened assa!lt to #e co))itted # the deceased against his $ife( "he danger 7as so i22inent and sudden leaving hi2 7ith no other choice but to shoot Ruben, other7ise his 7ife 7ill be seriously pre?udiced) 4 dear $ife% Ella( !urther2ore, the )eans e)"lo ed # the acc!sed in )a&ing the defense $as rationall and reasona#l necessar to "revent or re"el the i))inent !nla$f!l aggression of the deceased( $t has been held ti2e and again that the reasonableness of the 2eans adopted is not one of 2athe2atical calculation or G2aterial co22ensurability bet7een the 2eans of attac= and defenseG but the i22inent danger against the sub?ect of the attac= as perceived by the defender and the instinct 2ore than reason that 2oves the defender to repel the attac=) $t has further been stressed in such cases that to the i))inent threat of the )o)ent% one co!ld not #e ho"ed to e-ercise s!ch cal) .!dg)ent as )a #e e-"ected of another not la#oring !nder an !rgenc and $ho has s!fficient ti)e to a""raise the !rgenc of the sit!ation(
.

h!)an nat!re% the

acc!sed acted in o#edience to the instinct of "reserving the life of his hel"less

'oreover, the nat!re and n!)#er of $o!nds inflicted # the acc!sed are constantl and !nre)ittingl considered as i)"ortant indicia $hich "rove or dis"rove a "lea of self3defense or defense of stranger5relative #eca!se the de)onstrate a deter)ined effort to &ill the victi) and not .!st defend one self(0 $n this instant case, accused only inflicted and fired one shot against the victi2 validating the fact that the accused did not intend to =ill the deceased but only for a righteous purpose of defending his 7ife, 7ho, fro2 the accused;s point of vie7, 7as in i22inent danger of bolo attac=) $n the case of U(S( vs( 4at!ng#acal% 67 'hil( 689 , the &upre2e Court held that in vie7 of the i22inence of the danger, the only re2edy 7hich could be considered reasonably necessary to repel or prevent the aggression, 7as to render the aggressor har2less) The highest co!rt in this case considered the shotg!n as a reasona#le )eans to "revent an aggression $ith a #olo(

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:slabon v. *he %eople of the %hilippines, et. al ;( <o. =-""2!2, >ebruary 2,, . 6, #abuslay vs. %eople, ,-. /#(0 2,., /eptember 1!, 2!!2

(ny person 7ho, in defending his father against an unla7ful attac=, 7hile he still honestly believes hi2 to be in great danger, causes the death of the attac=ing party, is e5e2pt fro2 cri2inal responsibility)
H

Therefore% fro) the foregoing disc!ssions% the acc!sed s!ccessf!ll "roved the .!stif ing circ!)stance of a la$f!l defense of a relative !nder Article ::% "aragra"h 9 of the Revised 'enal Code( ,aving "roved the sa)e% he is entitled to a verdict of ac1!ittal( >ith the presence ?ustifying circu2stance of a defense of a relative, the act of the accused cannot be considered felonious as a2ounting to ho2icide) 'rosec!tion failed to "rove the conc!rrence of all the ele)ents for ho)icide% there #eing the e-istence of a .!stif ing circ!)stance( Roger 4aa acted in accordance $ith la$% s!ch that he is not dee)ed to have transgressed the la$( ,ence% he )!st #e freed fro) #oth cri)inal and civil lia#ilit (

?/ v. :smedia, ;( <o. =-2-, , October 2., . .!

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'RA*ER
6PO% ( "#E !ORE3O$%3 CO%&$DER("$O%&, it is 2ost respectfully prayed

of this #onorable Court that the accused be acCuitted of the cri2e of #o2icide on the ground of failure of the Prosecution to prove the sa2e, there being in e5istence a ?ustifying circu2stance of a defense of relative in accordance 7ith la7) Davao City, January 0, +**H)

M*LENE A( ANITO% c"a Counsel for the (ccused (DD6, Jacinto &t), Davao City Roll %o) 88888 +**H P"R %o) 8888888, 1/*+/*H, Davao City $BP ife 'e2ber Roll %O) 88888

#opy >urnished@

GIO;ANNI R( MORALES Prosecutor $ Davao City By Personal Delivery

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