People vs.

Ernesto Ulep
G.R. no. 132547
September 20, 2000

Facts:

SPO1 Ernest Ulep is convicted for the murder of Buenaventura Wapili. His case is
automatically elevated for review to the Supreme Court due to the imposed penalty of death.

On December 22, 1995 at around 2:00am at Mundog Subdivision, Poblacion,

Kidapawan, Cotabato, Buenaventura Wapili was having a high fever and was heard talking
insensibly to himself in his room. Dario Leydan, his brother-in-law, convinced him to come out
and talk. But Wapili refused. A little later, there was a disturbance inside the room as if Wapili
was smashing the furniture, until he was already running without any particular direction as if
completely gone crazy.

After several attempts to pacify Wapili, Leydan went to another neighbor to solicit her
help. The neighbor, Norma Plando was a policewoman who radioed SPO1 Ernesto Ulep, SPO1
Edilberto Espadera and SPO2 Crispin Pillo.

The three responding policemen, armed with M-16 rifles, arrived around 4:00am. SPO1
Ulep fired a warning shot and told Wapili to put down his weapon or they would shoot him.
However, Wapili refused and instead advanced towards the police officers. At about two or
three meters away, SPO1 Ulep shot various parts of the victim’s body. As the victim slumped to
the ground, SPO1 Ulep fired another bullet into his head.

An Information for murder was filed against SPO1 Ulep through the Office of the
Ombudsman for the Military. The accused pleaded not guilty to the charge and insisted that he
acted in self-defense.

On October 27, 1997, the trial court convicted the accused of murder and sentenced him
to death.

Issue:

Whether or not the circumstance of fulfillment of duty should be appreciated in the case.

Whether or not the circumstance of self-defense is present.

Whether or not the qualifying circumstance of treachery should be appreciated in the

case as to qualify the offense from homicide to murder.

Held:

In order that the circumstance of fulfillment of duty be appreciated, two requisites must
concur. First, that the appellant acted in the performance of a duty or is in the lawful exercise of
a right or an office; and second, that the injury caused or the offense committed is the
necessary consequence of the due performance of duty or the lawful exercise of such right or
office.

In the instance case, the second requisite is absent. When he fatally shot the victim in
the head even after the latter slumped to the ground cannot be exonerated. Obviously, it was
unnecessary even perhaps in his desire to take no chances.

For the appreciation of self-defense, the elements are: the existence of unlawful
aggression on the part of the person injured or killed by the accused; reasonable necessity of
the means employed to prevent or repel it; and the lack of sufficient provocation on the part of
the person defending himself.

In the case, the records show that when the appellant fired while the victim was already
lying on the ground affirmed the absence of aggression. The first indispensable requisite for self
defense being absent is fatal to the claim.

As to treachery, it is appreciated whenever the offender commits any of the crimes

against persons, employing means, methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the defense
which the offended party might make.

The accused fired a warning shot in the air and specifically ordered the victim to lower
his weapon. This shows that the appellant did not seek the killing of Wapili on purpose. The
appellant’s decision to kill was made in an instant and the victim’s helpless position was merely
incidental to his having been previously shot.

The presence of the incomplete justifying circumstance of fulfillment of a duty or lawful

exercise of a right is deemed a special or privileged mitigating circumstance. Such circumstance
cannot be offset by aggravating circumstances but also reduces the penalty by one or two
degrees than that prescribed by law in accordance to Article 69 of the RPC.

Furthermore, the court credited in favor of the appellant the presence of the mitigating
circumstance of voluntary surrender. The police blotter shows that appellant immediately
reported to the police headquarters and voluntarily surrendered himself after the incident.

In appreciation of the incomplete justifying circumstance of fulfillment of a duty or lawful

exercise of a right lowered the penalty by one degree from reclusion temporal to prision mayor.
The existence of the mitigating circumstance of voluntary surrender imposed the penalty of
prision mayor in its minimum period.

The Supreme Court held SPO1 Ulep guilty of Homicide instead of Murder. He is
sentenced to an indeterminate prison term of 4 years, 2 months and 10 day of prision
correccional medium as minimum, to 6 years, 4 months and 20 days of prision mayor minimum
as maximum. He is further ordered to indemnity the heirs of the victim in the amount of P50,000
and to pay the costs.