FIRST DIVISION

[G.R. No. 103613. February 23, 2001]

PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C.

TANGAN, respondents.

[G.R. No. 105830. February 23, 2001]

ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF

APPEALS, respondents.

DECISION

YNARES-SANTIAGO, J.:

At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone
on Roxas Boulevard heading south. He had just come from Buendia Avenue on an intelligence
operation. At the same time, Generoso Miranda, a 29-year old optometrist, was driving his car in
the same direction along Roxas Boulevard with his uncle, Manuel Miranda, after coming from
the Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown
in Generoso’s way, causing him to swerve to the right and cut Tangan’s path. Tangan blew his
horn several times. Generoso slowed down to let Tangan pass. Tangan accelerated and overtook
Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or five times to
overtake on the right lane but Tangan kept blocking his lane. As he approached Airport Road,
Tangan slowed down to make a U-turn. 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. Tangan 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 subsequent events per account of the parties’ respective
witnesses were conflicting:

According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and
Manuel Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda
tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the accused
pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at a distance of
about a meter but because the arm of the accused was extended, the muzzle of the gun reached to
about more or less one foot away from the body of Generoso Miranda. The shot hit the stomach
of Generoso Miranda causing the latter to fall and while still conscious, Generoso Miranda told
Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for the possession of the
gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and after
Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The
man in T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red
T-shirt placed it.
On the other hand, the defense, particularly the accused and his witness by the name of Nelson
Pante claimed that after the gun was taken by the accused from inside his car, the Mirandas
started to grapple for possession of the gun and during the grappling, and while the two Mirandas
were trying to wrest away the gun from the accused, they fell down at the back of the car of the
accused. According to the accused, he lost the possession of the gun after falling at the back of
his car and as soon as they hit the ground, the gun fell, and it exploded hitting Generoso
Miranda.

After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied.
His uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already
pursued him. Tangan found a policeman who allowed him to enter his patrol car. Manuel
arrived and told the policeman that Tangan had just shot his nephew. Then he went back to
where Generoso lay and there found two ladies, later identified as Mary Ann Borromeo and
Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought to
the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the
way.

Tangan was charged with the crime of murder with the use of an unlicensed firearm. After a
reinvestigation, however, the information was amended to homicide with the use of a licensed
firearm, and he was separately charged with illegal possession of unlicensed firearm. On
arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the
information for illegal possession of unlicensed firearm on various grounds. The motion to
quash was denied, whereupon he filed a petition for certiorari with this Court. On November 5,
1987, said petition was dismissed and the joint trial of the two cases was ordered.

During the trial, the prosecution and the defense stipulated on the following: that the amount of
P126,000.00 was incurred for the funeral and burial expenses of the victim; that P74,625.00 was
incurred for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of
which is left for the courts to determine. After trial, the lower court acquitted Tangan of illegal
possession of firearm, but convicted him of homicide. The privileged mitigating circumstance of
incomplete self-defense and the ordinary mitigating circumstances of sufficient provocation on
the part of the offended party and of passion and obfuscation were appreciated in his favor;
consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) months of
arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as
maximum, and to indemnify the heirs of the victim. Tangan was released from detention after the
promulgation of judgment and was allowed bail in the homicide case.

Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court,
docketed as G.R. No. 102677, challenging the civil aspect of the court a quo’s decision, but the
same was dismissed for being premature. On the other hand, Tangan appealed to the Court of
Appeals, which affirmed the judgment of the trial court but increased the award of civil
indemnity to P50,000.00. His subsequent motion for reconsideration and a motion to cite the
Solicitor General in contempt were denied by the Court of Appeals.

The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of
discretion, filed a petition for certiorari under Rule 65, docketed as G.R. No. 103613, naming as
respondents the Court of Appeals and Tangan, where it prayed that the appellate court’s
judgment be modified by convicting accused-appellant of homicide without appreciating in his
favor any mitigating circumstance. Subsequently, the Office of the Solicitor General, this time
acting for public respondent Court of Appeals, filed a motion for extension to file comment to its
own petition for certiorari. Discovering its glaring error, the Office of the Solicitor General later
withdrew its motion for extension of time. Tangan filed a Reply asking that the case be
submitted for decision.

Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No.
105830. Since the petition for certiorari filed by the Solicitor General remained unresolved, the
two cases were consolidated. The Office of the Solicitor General filed a manifestation in G.R.
No. 105830, asking that it be excused from filing a comment to Tangan’s petition for review, in
order to avoid taking contradictory positions.

In the recent case of People v. Velasco and Galvez, we held that the prosecution cannot avail of
the remedies of special civil action on certiorari, petition for review on certiorari, or appeal in
criminal cases. Previous to that, we categorically ruled that the writ of certiorari cannot be used
by the State in a criminal case to correct a lower court’s factual findings or evaluation of the
evidence.

Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:

Former conviction or acquittal; double jeopardy. - When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction and after the accused had pleaded
to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information under any
of the following instances:

(a) the graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge;

(b) the facts constituting the graver charge became known or were discovered only after
a pleas was entered in the former complaint or information; or

(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and
of the offended party, except as provided in section 1(f) of Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same in the event of conviction for the graver offense.
Based on the foregoing, the Solicitor General’s petition for certiorari under Rule 65, praying that
no mitigating circumstance be appreciated in favor of accused-appellant and that the penalty
imposed on him be correspondingly increased, constitutes a violation of Tangan’s right against
double jeopardy and should be dismissed.

We now come to the petition for review filed by Tangan. It is noteworthy that during the trial,
petitioner Tangan did not invoke self-defense but claimed that Generoso was accidentally shot.
As such, the burden of proving self-defense, which normally would have belonged to Tangan,
did not come into play. Although Tangan must prove his defense of accidental firing by clear
and convincing evidence, the burden of proving the commission of the crime remained in the
prosecution.

Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged
mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11
(1), of the Revised Penal Code, to wit:

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.

xxx xxx xxx

ARTICLE 13. Mitigating Circumstances. – The following are mitigating circumstances:

1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act
or to exempt from criminal liability in the respective cases are not attendant.

Incomplete self-defense is not considered as a justifying act, but merely a mitigating

circumstance; hence, the burden of proving the crime charged in the information is not shifted to
the accused. In order that it may be successfully appreciated, however, it is necessary that a
majority of the requirements of self-defense be present, particularly the requisite of unlawful
aggression on the part of the victim. Unlawful aggression by itself or in combination with either
of the other two requisite suffices to establish incomplete self-defense. Absent the unlawful
aggression, there can never be self-defense, complete or incomplete, because if there is nothing
to prevent or repel, the other two requisites of defense will have no basis.
There is no question that the bullet which hit the victim was fired from the caliber. 38, which was
issued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary
to gunshot wound of the abdomen, caused by the bullet fired from a gun of the said caliber. The
prosecution claimed that Tangan shot the victim point-blank in the stomach at a distance of about
one foot. On the other hand, Tangan alleged that when he grappled with Generoso and Manuel
Miranda for possession of the gun, it fell to the ground and accidentally fired, hitting the victim.

When the testimonies of witnesses in open court are conflicting in substantial points, the
calibration of the records on appeal becomes difficult. It is the word of one party against the
word of the other. The reviewing tribunal relies on the cold and mute pages of the records,
unlike the trial court which had the unique opportunity of observing first-hand that elusive and
incommunicable evidence of the witness’ deportment on the stand while testifying. The trial
court’s assessments of the credibility of witnesses is accorded great weight and respect on appeal
and is binding on this Court, particularly when it has not been adequately demonstrated that
significant facts and circumstances were shown to have been overlooked or disregarded by the
court below which, if considered, might affect the outcome hereof. The rationale for this has
been adequately explained in that,

The trial court has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a
discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready
reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the
flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the
scant or full realization of the solemnity of an oath, and carriage and mien.

Equally, when a person fabricates a story, he usually adopts a simple account because a complex
one might lead to entanglement from which he may find it hard to extricate himself. Along the
same line, the experience of the courts and the general observations of humanity teach us that the
natural limitations of our inventive faculties are such that if a witness delivers in court a false
narrative containing numerous details, he is almost certain to fall into fatal inconsistencies, to
make statements which can be readily refuted, or to expose in his demeanor the falsity of his
message. Aside from this, it is not also unusual that the witness may have been coached before
he is called to the stand to testify.

Somewhere along the painstaking review of the evidence on record, one version rings the
semblance of truth, not necessarily because it is the absolute truth, but simply because it is the
best approximation of the truth based on the declarations of witnesses as corroborated by
material evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been
well said, are not always opposed to each other like black and white, but oftentimes, and by
design, are made to resemble each other so as to be hardly distinguishable. Thus, after analyzing
the conflicting testimonies of the witnesses, the trial court found that:

When the accused took the gun from his car and when he tried to get out of the car and the two
Mirandas saw the accused already holding the gun, they started to grapple for the possession of
the gun that it went off hitting Generoso Miranda at the stomach. The court believes that
contrary to the testimony of the accused, he never lost possession of the gun for if he did and
when the gun fell to the ground, it will not first explode or if it did, somebody is not holding the
same, the trajectory of the bullet would not be perpendicular or horizontal.

The Court of Appeals agreed -

The finding of the lower court that Generoso Miranda III was shot while the accused and the
Mirandas were grappling for the possession of the gun immediately after the accused had taken
his gun from inside his car and before the three allegedly fell to the ground behind the car of the
accused is borne out by the record. The court also agrees with the court below that it was the
accused-appellant who shot and killed Generoso Miranda III. If the accused-appellant did not
shoot Generoso III during the scuffle, he would have claimed accidental killing by alleging that
his gun exploded during the scuffle instead of falsely testifying that he and the Mirandas fell to
the ground behind his car and the gun exploded in the possession of Manuel Miranda. The
theory of the prosecution that the shooting took place while the three were grappling for the
possession of the gun beside the car of appellant is completely in harmony with the findings and
testimony of Dr. Ibarrola regarding the relative position of the three and the precarious nearness
of the victim when accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that
the gun was about two (2) inches from the entrance wound and that its position was almost
perpendicular when it was fired. It was in fact the closeness of the Mirandas vis-à-vis appellant
during the scuffle for the gun that the accused-appellant was compelled to pull the trigger in
answer to the instinct of self-preservation.

No convincing reason appears for the Court to depart from these factual findings, the same being
ably supported by the evidence on record. In violent deaths caused by gunshot wounds, the
medical report or the autopsy on the cadaver of the victim must as much as possible narrate the
observations on the wounds examined. It is material in determining the truthfulness of the events
narrated by the witnesses presented. It is not enough that the witness looks credible and assumes
that he indeed witnessed the criminal act. His narration must be substantiated by the physical
evidence available to the court.

The medical examiner testified that the distance between the muzzle of the gun and the target
was about 2 inches but definitely not more than 3 inches. Based on the point of exit and the
trajectory transit of the wound, the victim and the alleged assailant were facing each other when
the shot was made and the position of the gun was almost perpendicular when fired. These
findings disprove Tangan’s claim of accidental shooting. A revolver is not prone to accidental
firing because of the nature of its mechanism, unless it was already first cocked and pressure was
exerted on the trigger. If it were uncocked, then considerable pressure had to be applied on the
trigger to fire the revolver.

Having established that the shooting was not accidental, the next issue to be resolved is whether
Tangan acted in incomplete self-defense. The element of unlawful aggression in self-defense
must not come from the person defending himself but from the victim.

A mere threatening or intimidating attitude is not sufficient. Likewise, the exchange of insulting
words and invectives between Tangan and Generoso Miranda, no matter how objectionable,
could not be considered as unlawful aggression, except when coupled with physical assault.
There being no lawful aggression on the part of either antagonists, the claim of incomplete self-
defense falls. Tangan undoubtedly had possession of the gun, but the Mirandas tried to wrestle
the gun from him. It may be said that the former had no intention of killing the victim but
simply to retain possession of his gun. However, the fact that the victim subsequently died as a
result of the gunshot wound, though the shooter may not have the intention to kill, does not
absolve him from culpability. Having caused the fatal wound, Tangan is responsible for all the
consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but
anticipating that the gun may be taken from him, he fired and fled.

The third requisite of lack of sufficient provocation on the part of the person defending himself is
not supported by evidence. By repeatedly blocking the path of the Mirandas for almost five
times, Tangan was in effect the one who provoked the former. The repeated blowing of horns,
assuming it was done by Generoso, may be irritating to an impatient driver but it certainly could
not be considered as creating so powerful an inducement as to incite provocation for the other
party to act violently.

The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion
and obfuscation under Article 13, paragraphs 4 and 6, have no factual basis. 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. Moreover, 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.

For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that
(1) there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said
act which produced the obfuscation was not far removed from the commission of the crime by a
considerable length of time, during which the perpetrator might recover his normal equanimity.

In the case at bar, Tangan could not have possibly acted upon an impulse for there was no
sudden and unexpected occurrence which wuld have created such condition in his mind to shoot
the victim. Assuming that his path was suddenly blocked by Generoso Miranda due to the
firecrackers, it can no longer be treated as a startling occurrence, precisely because he had
already passed them and was already the one blocking their path. Tangan’s acts were done in the
spirit of revenge and lawlessness, for which no mitigating circumstance of passion or obfuscation
can arise.

With respect to the penalty, under the laws then existing, homicide was penalized with reclusion
temporal, but if the homicide was committed with the use of an unlicensed firearm, the penalty
shall be death. The death penalty, however, cannot be imposed on Tangan because in the
meantime, the 1987 Constitution proscribed the imposition of death penalty; and although it was
later restored in 1994, the retroactive application of the death penalty is unfavorable to him.
Previously, the accused may be prosecuted for two crimes: (1) homicide or murder under the
Revised Penal Code and (2) illegal possession of firearm in its aggravated form under P.D. 1866.

P.D. 1866 was amended by R.A. No. 8294, which provides that if an unlicensed firearm is used
in murder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating
circumstance and no longer considered as a separate offense, which means that only one offense
shall be punished – murder or homicide. However, this law cannot apply retroactively because it
will result in the imposition on Tangan of the maximum period of the penalty. Moreover, under
Rule 110, Section 8 of the Revised Rules of Criminal Procedure, the aggravating circumstance
must be alleged in the information. Being favorable, this new rule can be given retroactive effect
as they are applicable to pending cases. In any case, Tangan was acquitted of the illegal
possession case.

Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant
to Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods,
and there is neither mitigating nor aggravating circumstance, the medium period shall be
applied. Applying the Indeterminate Sentence law, the maximum of the indeterminate penalty
shall be that which, in view of the attendant circumstances, may be properly imposed, which in
this case is reclusion temporal medium with an imprisonment range of from fourteen (14) years,
eight (8) months and one (1) day to seventeen (17) years and four (4) months. The minimum of
the indeterminate sentence shall be the next lower degree which is prision mayor with a range of
from six (6) years and one (1) day to twelve (12) years. Hence, petitioner Tangan is sentenced to
an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.

The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00
in line with jurisprudence. Moral damages are awarded in criminal cases involving injuries if
supported by evidence on record, but the stipulation of the parties in this case substitutes for the
necessity of evidence in support thereof. Though not awarded below, the victim’s heirs are
entitled to moral damages in the amount of P50,000.00 which is considered reasonable
considering the pain and anguish brought by his death.

WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject
of G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS:

(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of
prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of
reclusion temporal, as maximum, with all the accessory penalties.

(2) Tangan is ordered to pay the victim’s heirs P50,000.00 as civil indemnity, P42,000.00 as
funeral and burial expenses, P5,000.00 as attorney’s fees, and P50,000.00 as moral damages.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
Rollo in G.R. No. 105830, pp. 125-126.

Criminal Case No. T-17587; “That on or about the 1st day of December, 1984, in the
Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named with intent to kill, with treachery and with the use of an
unlicensed firearm, did then and there willfully, unlawfully and feloniously attack, assault and
shot Generoso Miranda III, thereby inflicting upon his mortal gunshot wounds which directly
caused his death, contrary to law.” (Rollo in G.R. No. 105830, p. 12).

The Amended Information reads: “That on or about the 1st day of December, 1984, in the
Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named with intent to kill and armed with a gun, did then and there
willfully, unlawfully and feloniously attack, assault and shot with the said firearm (licensed) one
Generoso Miranda III, thereby hitting the latter in the abdomen and inflicting upon him mortal
gunshot wounds which directly caused his death, contrary to law.” (Rollo in G.R. No. 105830, p.
12).

Criminal Case No. T-19350: “That on or about the 1st day of December, 1984, in the
Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court the above-named accused willfully and feloniously have in possession, custody
and control a Smith and Wesson Cal. 38 revolver with Serial No. C61898 (Yoke No. 7566) and
five (5) live ammunitions and one (1) empty shell without having procured the corresponding
license or permit therefor and which the said accused used in the commission of the crime of
homicide against the person of Generoso Miranda III, contrary to law.” (Rollo in G.R. No.
105830, p. 13).

G.R. No. L-73963.

Tangan v. People, 155 SCRA 435 (1987).

Rollo, p. 105.

The dispositive portion of the Regional Trial Court Decision dated August 16, 1989 penned by
Judge xxxx reads: “WHEREFORE, premises considered in Criminal Case No. 178587 for the
crime of Homicide defined and penalized under Article 249 of the Revised Penal Code with the
attendance of the privileged mitigating circumstances of incomplete self defense and ordinary
mitigating circumstances of sufficient provocation on the part of the offended party, and passion
and obfuscation. For which reason, the accused is hereby sentenced to suffer an indeterminate
prison term of two (2) months of ARRESTO MAYOR, as minimum to two (2) years and four (4)
months of PRISION CORRECCIONAL, as maximum, with all the accessories of the law.

The preventive confinement of the accused shall be credited full time in his favor.

The accused is further ordered to pay to the heirs of Generoso Miranda namely, Ruby Miranda
and Maria Miranda the following:
1. P30,000.00 for and as indemnity for causing the death of Generoso Miranda;

2. P42,000.00 for funeral burial and other related expenses;

3. P5,000.00 as attorney’s fees.

Costs against the accused.

With respect to Criminal Case No. 19350 for Illegal Possession of Firearms and ammunitions
Used in the Commission of Homicide, and finding the accused innocent to the charge against
him, he is hereby ACQUITTED.” (Rollo in G.R. No. 105830, p. 14).

Illegal possession of firearms and homicide with the use of unlicensed firearm are generally non-
bailable offenses under the 1973 Constitution which was in force at the time of the commission
of the crimes herein.

The dispositive portion of the CA Decision dated October 30, 1991, penned by Justice Cacdac,
Jr. with Justices de Pano, Jr. and Guingona, concurring consisting of 51-single space pages reads:
“WHEREFORE, the decision appealed from is hereby MODIFIED with respect to the indemnity
for the death of the victim Generoso Miranda in the amount of P50,000.00.

In all other respects, the appealed decision is affirmed. Costs against accused-appellant.

SO ORDERED.” (Rollo in G.R. No. 105830, p. 131).

CA Resolution promulgated June 23, 1992 penned by Justice De Pano, Jr., with Justices
Guingona and Garcia, concurring; Rollo in G.R. No. 105830, pp. 133-136.

Petition for Certiorari filed by the Solicitor General (Francisco Chavez); Rollo in G.R. No.
103613, pp. 105-106.

The several motions for extension filed by the Office of the Solicitor General were signed by
Solicitor General Ramon S. Desuasido and the other by Acting Solicitor General Eduardo G.
Montenegro.

Comment signed by Solicitor General Montenegro dated July 22, 1992; Rollo in G.R. No.
103613, p. 407.

Reply to Comment dated September 28, 1992 filed by private respondent in G.R. No. 103613,
Rollo, p. 412

Petition for Review, pp. 1-71; Rollo in G.R. No. 105830, pp. 7-77.

Rejoinder in G.R. No. 103613 of the new Solicitor General (Raul Goco) dated November 25,
1992, p. 3; Rollo, p. 422.
Manifestation and Motion by the Office of the Solicitor General (Raul Goco) dated December 2,
1992, p. 3; Rollo in G.R. No. 105830, p. 264.

G.R. No. 127444, September 13, 2000.

Soriano v. Hon. Angeles, G.R. No. 109920, August 31, 2000.

People v. Galapin, 293 SCRA 474 (1998); People v. Timblor, 285 SCRA 64 (1998).

People v. Arroyo, 111 SCRA 689 (1982); People v. Capitania, 49 Phil. 475.

Rule 119, Section 3. Order of trial. — The trial shall proceed in the following order:

xxx xxx xxx

(e) However, when the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be modified accordingly.

See People v. Navarro, 7 Phil. 713; People v. Martin, 89 Phil. 18.

People v. Sazon, 189 SCRA 700 (1990); Ortega v. Sandiganbayan, 170 SCRA 38 (1989); People
v. Picardal, 151 SCRA 170 (1987).

People v. Yuman, 61 Phil. 786.

People v. Mahinay, G.R. No. 122485, February 1, 1999.

People v. Mamalayan, 280 SCRA 748 (1997); People v. Jagolingay, 280 SCRA 768 (1997);
Rabaja v. CA, 280 SCRA 290 (1997); Padilla v. CA, 269 SCRA 402 (1997).

People v. Dizon, G.R. No. 126044-45, July 2, 1999.

People v. Alitagtag, G.R. Nos. 124449-51, June 29, 1999 citing People v. Quijada, 259 SCRA
191, 212-213 [1996].

People v. San Juan, G.R. No. 130969, February 29, 2000 citing People v. Gana, Jr., 265 SCRA
260 (1996) and US v. Burns, 41 Phil. 418.

Johnson v. Emerson, (1871).

Rollo in G.R. No. 105830, p. 126.

CA Decision, dated October 30, 1991, p. 49; Rollo in G.R. No. 105830, p. 129.

Rollo, p. 84.
People v. Reyes, 69 SCRA 475 (1976).

People v. Pasco, Jr., 137 SCRA 137 (1985); People v. Rey, 172 SCRA 149 (1989).

U.S. v. Carrero, 9 Phil. 544.

Article 13. The following are mitigating circumstances:

xxx xxx xxx

4. that sufficient provocation or threat on the part of the offended party immediately
preceded the act.

xxx xxx xxx

6. that of having acted upon an impulse so powerful as naturally to have produced

passion or obfuscation.

People v. delos Santos, 85 Phil. 870.

People v. Nabora, 73 Phil. 434.

See People v. Laude, 58 Phil. 933.

I Reyes, The Revised Penal Code, p. 272 (1998).

Article 249, Revised Penal Code. The penalty for homicide was not changed by R.A. No. 7659
though another law (Section 10, R.A. No. 7610) provides that if the victim is under 12 years of
age, the penalty shall be one degree higher.

P.D. 1866.

Pursuant to the old provisions of Section 1, P. D. 1866 and the court’s ruling in People v.
Quijada, 328 Phil. 505 (1996).

An act amending the provisions of P.D. 1866, as amended, entitled “Codifying the laws on
illegal/unlawful possession, manufacture, dealing in, acquisition or distribution of firearms,
ammunitions, or explosives or instruments used in the manufacture of firearms, ammunitions or
explosives and imposing stiffer penalties for certain violations thereof and for relevant
purposes.” (Took effect July 6, 1997).

People v. Nepomuceno, Jr., G.R. No. 130800, June 29, 1999 citing People v. Bergante, 286
SCRA 629 (1998); People v. Narvasa, 298 SCRA 637 (1998); People v. Molina, 292 SCRA 742
(1998).

Took effect December 1, 2000.

See Oriental Assurance v. Solidbank, G.R. No. 139882, August 16, 2000.

People v. Acuram, G.R. No. 117954, April 27, 2000.

People v. Pedroso, G.R. No. 125128, July 19, 2000.

People v. Cayago, G.R. No. 128827, August 18, 1999 citing People v. Arguelles, 222 SCRA 166
(1993).

People v. Reynaldo Langit, G.R. Nos. 134757-58, August 4, 2000; People v. Mindanao, G.R. No.
123095, July 6, 2000.

FIRST DIVISION

SPO2 RUPERTO CABANLIG, G.R. No.

148431
Petitioner,

Present:

Davide, Jr., C.J.,

Chairman,

Quisumbing,
 - versus- Ynares-
Santiago,

Carpio,
and
Azcuna,
JJ.

SANDIGANBAYAN and OFFICE

Promulgated:
OF THE SPECIAL PROSECUTOR,
Respondents, July 28, 2005

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:
The Case

This petition for review[1] seeks to reverse the Decision[2] of the Fifth

Division of the Sandiganbayan dated 11 May 1999 and Resolution[3] dated 2

May 2001 affirming the conviction of SPO2 Ruperto Cabanlig (“Cabanlig”) in

Criminal Case No. 19436 for homicide. The Sandiganbayan sentenced Cabanlig to

suffer the indeterminate penalty of four months of arresto mayor as minimum to

two years and four months of prision correctional as maximum and to pay P50,000

to the heirs of Jimmy Valino (“Valino”). Cabanlig shot Valino after Valino

grabbed the M16 Armalite of another policeman and tried to escape from the

custody of the police. The Sandiganbayan acquitted Cabanlig’s co-accused, SPO1

Carlos Padilla (“Padilla”), PO2 Meinhart Abesamis (“Abesamis”), SPO2 Lucio

Mercado (“Mercado”) and SPO1 Rady Esteban (“Esteban”).

The Charge

Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with

murder in an amended information that reads as follows:

 That on or about September 28, 1992, in the Municipality of Penaranda,
Province of Nueva Ecija, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1
Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1
Rady S. Esteban, all public officers being members of the Philippine National
Police, conspiring and confederating and mutually helping one another, with
intent to kill, with treachery and evident premeditation, taking advantage of
nighttime and uninhabited place to facilitate the execution of the crime, with use
of firearms and without justifiable cause, did then and there, wilfully, unlawfully
and feloniously attack, assault and shoot one Jimmy Valino, hitting him several
times at the vital parts of his body, thereby inflicting upon the latter, serious and
mortal wounds which were the direct and immediate cause of his death, which
crime was committed by the accused in relation to their office as members of the
Philippine National Police of Penaranda, Nueva Ecija, the deceased, who was
then detained for robbery and under the custody of the accused, having been
killed while being taken to the place where he allegedly concealed the effects of
the crime, to the damage and prejudice of the heirs of said victim, in such amount
as may be awarded under the provisions of the New Civil Code.

CONTRARY TO LAW.[4]

Arraignment and Plea

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis, Mercado and Esteban pleaded not guilty.
Version of the Prosecution

On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. Four
days later or on 28 September 1992, the investigating authorities apprehended three suspects:
Jordan Magat (“Magat”), Randy Reyes (“Reyes”) and Valino. The police recovered most of the
stolen items. However, a flower vase and a small radio were still missing. Cabanlig asked the
three suspects where these two items were. Reyes replied that the items were at his house.

Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to accompany him in
retrieving the flower vase and radio. Cabanlig then brought out Reyes and Magat from their cell,
intending to bring the two during the retrieval operation. It was at this point that Valino informed
Cabanlig that he had moved the vase and radio to another location without the knowledge of his
two cohorts. Cabanlig decided instead to bring along Valino, leaving behind Magat and Reyes.

Around 6:30 p.m., five fully armed policemen in uniform – Cabanlig, Padilla, Mercado,
Abesamis and Esteban – escorted Valino to Barangay Sinasahan, Nueva Ecija to recover the
missing flower vase and radio. The policemen and Valino were aboard a police vehicle, an Isuzu
pick-up jeep. The jeep was built like an ordinary jeepney. The rear end of the jeep had no
enclosure. A metal covering separated the driver’s compartment and main body of the jeep.
There was no opening or door between the two compartments of the jeep. Inside the main body
of the jeep, were two long benches, each of which was located at the left and right side of the
jeep.

Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep.
Esteban was right behind Abesamis at the left bench. Valino, who was not handcuffed, was
between Cabanlig and Mercado at the right bench. Valino was seated at Cabanlig’s left and at
Mercado’s right. Mercado was seated nearest to the opening of the rear of the jeep.
Just after the jeep had crossed the Philippine National Railway bridge and while the jeep was
slowly negotiating a bumpy and potholed road, Valino suddenly grabbed Mercado’s M16
Armalite and jumped out of the jeep. Valino was able to grab Mercado’s M16 Armalite when
Mercado scratched his head and tried to reach his back because some flying insects were
pestering Mercado. Mercado shouted “hoy!” when Valino suddenly took the M16 Armalite.
Cabanlig, who was then facing the rear of the vehicle, saw Valino’s act of taking away the M16
Armalite. Cabanlig acted immediately. 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 did not fire any shot.

The shooting happened around 7:00 p.m., at dusk or “nag-aagaw ang dilim

at liwanag.” Cabanlig approached Valino’s body to check its pulse. Finding none,

Cabanlig declared Valino dead. Valino sustained three mortal wounds – one at the

back of the head, one at the left side of the chest, and one at the left lower back.

Padilla and Esteban remained with the body. The other three policemen, including

Cabanlig, went to a funeral parlor.

The following morning, 29 September 1992, a certain SPO4 Segismundo

Lacanilao (“Lacanilao”) of the Cabanatuan Police went to Barangay Sinasahan,

Nueva Ecija to investigate a case. Lacanilao met Mercado who gave him

instructions on how to settle the case that he was handling. During their

conversation, Mercado related that he and his fellow policemen “salvaged”

(summarily executed) a person the night before. Lacanilao asked who was

“salvaged.” Mercado answered that it was “Jimmy Valino.” Mercado then asked

Lacanilao why he was interested in the identity of the person who was “salvaged.”
Lacanilao then answered that “Jimmy Valino” was his cousin. Mercado

immediately turned around and left.

Version of the Defense

Cabanlig admitted shooting Valino. However, Cabanlig justified the

shooting as an act of self-defense and performance of duty. Mercado denied that

he told Lacanilao that he and his co-accused “salvaged” Valino. Cabanlig,

Mercado, Abesamis, Padilla, and Esteban denied that they conspired to kill Valino.

The Sandiganbayan’s Ruling

The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as

the court found no evidence that the policemen conspired to kill or summarily

execute Valino. Since Cabanlig admitted shooting Valino, the burden is on

Cabanlig to establish the presence of any circumstance that would relieve him of

responsibility or mitigate the offense committed.

The Sandiganbayan held that Cabanlig could not invoke self-defense or

defense of a stranger. The only defense that Cabanlig could properly invoke in this

case is fulfillment of duty. Cabanlig, however, failed to show that the shooting of

Valino was the necessary consequence of the due performance of duty. The

Sandiganbayan pointed out that while it was the duty of the policemen to stop the

escaping detainee, Cabanlig exceeded the proper bounds of performing this duty

when he shot Valino without warning.

The Sandiganbayan found no circumstance that would qualify the crime to murder. Thus,

the Sandiganbayan convicted Cabanlig only of homicide. The dispositive portion of the decision

reads:

WHEREFORE, premises considered, accused CARLOS ESTOQUE

PADILLA, MEINHART CRUZ ABESAMIS, LUCIO LADIGNON MERCADO
and RADY SALAZAR ESTEBAN are hereby ACQUITTED of the crime
charged. Accused RUPERTO CONCEPCION CABANLIG is found GUILTY
beyond reasonable doubt of the crime of Homicide and is hereby sentenced to
suffer the indeterminate sentence of FOUR (4) MONTHS of arresto mayor, as
minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional,
as maximum. He is further ordered to pay the heirs of Jimmy Valino the amount
of FIFTY THOUSAND (P50,000.00) PESOS, and the costs.

SO ORDERED.[5]
 On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. (“Associate

Justice Badoy”) dissented from the decision. Associate Justice Badoy pointed out that there was

imminent danger on the lives of the policemen when Valino grabbed the “infallible Armalite”[6]

from Mercado and jumped out from the rear of the jeep. At a distance of only three feet from

Cabanlig, Valino could have sprayed the policemen with bullets. The firing of a warning shot

from Cabanlig was no longer necessary. Associate Justice Badoy thus argued for Cabanlig’s

acquittal.

In a vote of four to one, the Sandiganbayan affirmed the decision.[7] The dispositive

portion of the Resolution reads:

WHEREFORE, for lack of merit, the motion for reconsideration is hereby

DENIED.[8]

The Issues

Cabanlig raises the following issues in his Memorandum:

 WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE
DEFENSE OF FULFILLMENT OF DUTY PUT UP BY CABANLIG WAS
INCOMPLETE

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT

CABANLIG COULD NOT INVOKE SELF-DEFENSE/DEFENSE OF
STRANGER TO JUSTIFY HIS ACTIONS

WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG

TO SUFFER IMPRISONMENT AND IN ORDERING HIM TO PAY THE
AMOUNT OF P 50,000 TO THE HEIRS OF VALINO[9]

The Court’s Ruling

The petition has merit. We rule for Cabanlig’s acquittal.

Applicable Defense is Fulfillment of Duty

We first pass upon the issue of whether Cabanlig can invoke two or more justifying

circumstances. While there is nothing in the law that prevents an accused from invoking the

justifying circumstances or defenses in his favor, it is still up to the court to determine which

justifying circumstance is applicable to the circumstances of a particular case.

 Self-defense and fulfillment of duty operate on different principles.[10] 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.[11]

On the other hand, the requisites of fulfillment of duty are:

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

right or office;

2. The injury caused or the offense committed be the necessary consequence of

the due performance of duty or the lawful exercise of such right or office.[12]
 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.[13] 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.[14] 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.[15]

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

unlawful aggression from the victim is not a requisite. In People v. Delima,[16] 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.[17] 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.[18]

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 People v. Lagata,[19] a jail guard shot to death a prisoner whom he thought was

attempting to escape. The Court convicted the jail guard of homicide because the facts showed

that the prisoner was not at all trying to escape. The Court declared that the jail guard could only

fire at the prisoner in self-defense or if absolutely necessary to avoid the prisoner’s escape.

In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance

of duty as policemen when they escorted Valino, an arrested robber, to retrieve some stolen

items. We uphold the finding of the Sandiganbayan that there is no evidence that the policemen

conspired to kill or summarily execute Valino. In fact, it was not Valino who was supposed to
go with the policemen in the retrieval operations but his two other cohorts, Magat and Reyes.

Had the policemen staged the escape to justify the killing of Valino, the M16 Armalite taken by

Valino would not have been loaded with bullets.[20] Moreover, the alleged summary execution

of Valino must be based on evidence and not on hearsay.

Undoubtedly, the policemen were in the legitimate performance of their duty when

Cabanlig shot Valino. Thus, fulfillment of duty is the justifying circumstance that is applicable

to this case. To determine if this defense is complete, we have to examine if Cabanlig used

necessary force to prevent Valino from escaping and in protecting himself and his co-accused

policemen from imminent danger.

Fulfillment of Duty was Complete, Killing was Justified

The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty was

found to be incomplete. The Sandiganbayan believed that Cabanlig “exceeded the fulfillment of

his duty when he immediately shot Valino without issuing a warning so that the latter would

stop.”[21]

We disagree with the Sandiganbayan.

 Certainly, an M16 Armalite is a far more powerful and deadly weapon than the bamboo

lance that the fugitive had run away with in People v. Delima. The policeman in People v.

Delima was held to have been justified in shooting to death the escaping fugitive because the

policeman was merely performing his duty.

In this case, Valino was committing an offense in the presence of the policemen when

Valino grabbed the M16 Armalite from Mercado and jumped from the jeep to escape. The

policemen would have been justified in shooting Valino if the use of force was absolutely

necessary to prevent his escape.[22] But Valino was not only an escaping detainee. Valino had

also stolen the M16 Armalite of a policeman. The policemen had the duty not only to recapture

Valino but also to recover the loose firearm. By grabbing Mercado’s M16 Armalite, which is a

formidable firearm, Valino had placed the lives of the policemen in grave danger.

Had Cabanlig failed to shoot Valino immediately, the policemen would have been sitting

ducks. All of the policemen were still inside the jeep when Valino suddenly grabbed the M16

Armalite. Cabanlig, Mercado and Esteban were hemmed in inside the main body of the jeep, in

the direct line of fire had Valino used the M16 Armalite. There would have been no way for

Cabanlig, Mercado and Esteban to secure their safety, as there were no doors on the sides of the

jeep. The only way out of the jeep was from its rear from which Valino had jumped. Abesamis

and Padilla who were in the driver’s compartment were not aware that Valino had grabbed

Mercado’s M16 Armalite. Abesamis and Padilla would have been unprepared for Valino’s

attack.
 By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino

certainly did not intend merely to escape and run away as far and fast as possible from the

policemen. Valino did not have to grab the M16 Armalite if his sole intention was only to flee

from the policemen. If he had no intention to engage the policemen in a firefight, Valino could

simply have jumped from the jeep without grabbing the M16 Armalite. Valino’s chances of

escaping unhurt would have been far better had he not grabbed the M16 Armalite which only

provoked the policemen to recapture him and recover the M16 Armalite with greater vigor.

Valino’s act of grabbing the M16 Armalite clearly showed a hostile intention and even

constituted unlawful aggression.

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. As we have pointed out in Pomoy v. People[23]:

Again, it was in the lawful performance of his duty as a law enforcer that
petitioner tried to defend his possession of the weapon when the victim suddenly
tried to remove it from his holster. As an enforcer of the law, petitioner was duty-
bound to prevent the snatching of his service weapon by anyone, especially by a
detained person in his custody. Such weapon was likely to be used to facilitate
escape and to kill or maim persons in the vicinity, including petitioner himself.
 The Sandiganbayan, however, ruled that despite Valino’s possession of a

deadly firearm, Cabanlig had no right to shoot Valino without giving Valino the

opportunity to surrender. The Sandiganbayan pointed out that under the General

Rules of Engagement, the use of force should be applied only as a last resort when

all other peaceful and non-violent means have been exhausted. The

Sandiganbayan held that only such necessary and reasonable force should be

applied as would be sufficient to conduct self-defense of a stranger, to subdue the

clear and imminent danger posed, or to overcome resistance put up by an

offender.

The Sandiganbayan had very good reasons in steadfastly adhering to the policy that a law

enforcer must first issue a warning before he could use force against an offender. A law

enforcer’s overzealous performance of his duty could violate the rights of a citizen and worse

cost the citizen’s life. We have always maintained that the judgment and discretion of public

officers, in the performance of their duties, must be exercised neither capriciously nor

oppressively, but within the limits of the law.[24] The issuance of a warning before a law

enforcer could use force would prevent unnecessary bloodshed. Thus, whenever possible, a law

enforcer should employ force only as a last resort and only after issuing a warning.

However, the duty to issue a warning is not absolutely mandated at all times and at all

cost, to the detriment of the life of law enforcers. The directive to issue a warning contemplates a

situation where several options are still available to the law enforcers. In exceptional
circumstances such as this case, where the threat to the life of a law enforcer is already

imminent, and there is no other option but to use force to subdue the offender, the law enforcer’s

failure to issue a warning is excusable.

In this case, the embattled policemen did not have the luxury of time. Neither did they

have much choice. Cabanlig’s shooting of Valino was an immediate and spontaneous reaction to

imminent danger. The weapon grabbed by Valino was not just any firearm. It was an M16

Armalite.

The M16 Armalite is an assault rifle adopted by the United Sates (“US”) Army as a

standard weapon in 1967 during the Vietnam War.[25] The M16 Armalite is still a general-issue

rifle with the US Armed Forces and US law enforcement agencies.[26] The M16 Armalite has

both semiautomatic and automatic capabilities.[27] It is 39 inches long, has a 30-round

magazine and fires high-velocity .223-inch (5.56-mm) bullets.[28] The M16 Armalite is most

effective at a range of 200 meters[29] but its maximum effective range could extend as far as

400 meters.[30] As a high velocity firearm, the M16 Armalite could be fired at close range

rapidly or with much volume of fire.[31] These features make the M16 Armalite and its variants

well suited for urban and jungle warfare.[32]

The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon. This high-
powered firearm was in the hands of an escaping detainee, who had sprung a surprise on his
police escorts bottled inside the jeep. A warning from the policemen would have been pointless
and would have cost them their lives.

For what is the purpose of a warning? A warning is issued when policemen have to

identify themselves as such and to give opportunity to an offender to surrender. A warning in

this case was dispensable. Valino knew that he was in the custody of policemen. Valino was

also very well aware that even the mere act of escaping could injure or kill him. The policemen

were fully armed and they could use force to recapture him. By grabbing the M16 Armalite of

his police escort, Valino assumed the consequences of his brazen and determined act.

Surrendering was clearly far from Valino’s mind.

At any rate, Valino was amply warned. Mercado shouted “hoy” when Valino grabbed the

M16 Armalite. Although Cabanlig admitted that he did not hear Mercado shout “hoy”,

Mercado’s shout should have served as a warning to Valino. The verbal warning need not come

from Cabanlig himself.

The records also show that Cabanlig first fired one shot. After a few seconds, Cabanlig

fired four more shots. Cabanlig had to shoot Valino because Valino at one point was facing the

police officers. The exigency of the situation warranted a quick response from the policemen.

According to the Sandiganbayan, Valino was not turning around to shoot because two of

the three gunshot wounds were on Valino’s back. Indeed, two of the three gunshot wounds were

on Valino’s back: one at the back of the head and the other at the left lower back. The
Sandiganbayan, however, overlooked the location of the third gunshot wound. It was three

inches below the left clavicle or on the left top most part of the chest area based on the Medico

Legal Sketch showing the entrances and exits of the three gunshot wounds.[33]

The Autopsy Report[34] confirms the location of the gunshot wounds, as follows:

GUNSHOT WOUNDS – modified by embalming.

1. ENTRANCE – ovaloid, 1.6 x 1.5 cms; with area of tattooing around

the entrance, 4.0 x 3.0 cms.; located at the right postauricular region, 5.5 cms.
behind and 1.5 cms. above the right external auditory meatus, directed forward
downward fracturing the occipital bone, lacerating the right occipital portion of
the brain and fracturing the right cheek bone and making an EXIT wound, 1.5 x
2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms.. in front of right
external auditory meatus.

2. ENTRANCE – ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5
cms. from the anterior median line, 136.5 cms. from the left heel directed
backward, downward and to the right, involving soft tissues, fracturing the 3rd rib,
left, lacerating the left upper lobe and the right lower lobe and finally making an
EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from the posterior
median line and 132.0 cms. from the right heel and grazing the medial aspect of
the right arm.

3. ENTRANCE – ovaloid, 0.6 x 0.5 located at the back, left side, 9.0
cms. from the posterior median line; 119.5 cms. from the left heel; directed
forward, downward involving the soft tissues, lacerating the liver; and bullet was
recovered on the right anterior chest wall, 9.0 cms. form the anterior median line,
112.0 cms. from the right heel.
 The Necropsy Report[35] also reveals the following:

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of
the back of the head. The left parietal bone is fractured. The left temporal
bone is also fractured. A wound of exit measuring 2 cms X 3 cms in size is
located at the left temporal aspect of the head.

2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the
chest about three inches below the left clavicle. The wound is directed
medially and made an exit wound at the right axilla measuring 2 X 2 cms in
size.

3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back
above the left lumbar. The left lung is collapsed and the liver is lacerated.
Particles of lead [were] recovered in the liver tissues. No wound of exit.

Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

The doctors who testified on the Autopsy[36] and Necropsy[37] Reports admitted that

they could not determine which of the three gunshot wounds was first inflicted. However, we

cannot disregard the significance of the gunshot wound on Valino’s chest. Valino could not have

been hit on the chest if he were not at one point facing the policemen.

If the first shot were on the back of Valino’s head, Valino would have immediately fallen

to the ground as the bullet from Cabanlig’s M16 Armalite almost shattered Valino’s skull. It
would have been impossible for Valino to still turn and face the policemen in such a way that

Cabanlig could still shoot Valino on the chest if the first shot was on the back of Valino’s head.

The most probable and logical scenario: Valino was somewhat facing the policemen

when he was shot, hence, the entry wound on Valino’s chest. On being hit, Valino could have

turned to his left almost falling, when two more bullets felled Valino. The two bullets then hit

Valino on his lower left back and on the left side of the back of his head, in what sequence, we

could not speculate on. At the very least, the gunshot wound on Valino’s chest should have

raised doubt in Cabanlig’s favor.

Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado

and Esteban are guilty only of gross negligence. The policemen transported Valino, an arrested

robber, to a retrieval operation without handcuffing Valino. That no handcuffs were available in

the police precinct is a very flimsy excuse. The policemen should have tightly bound Valino’s

hands with rope or some other sturdy material. Valino’s cooperative demeanor should not have

lulled the policemen to complacency. As it turned out, Valino was merely keeping up the

appearance of good behavior as a prelude to a planned escape. We therefore recommend the

filing of an administrative case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for

gross negligence.

WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No.

19436 convicting accused RUPERTO CONCEPCION CABANLIG of the crime of homicide.

We ACQUIT RUPERTO CONCEPCION CABANLIG of the crime of homicide and ORDER

his immediate release from prison, unless there are other lawful grounds to hold him. We

DIRECT the Director of Prisons to report to this Court compliance within five (5) days from

receipt of this Decision. No costs.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

Chairman
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ADOLFO S. AZCUNA

Associate Justice

CERTIFICATION
 Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified

that the conclusions in the above Decision were reached in consultation before the

case was assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice

[1] Under Rule 45 of the Rules of Court.

[2]Penned by Associate Justice Minita V. Chico-Nazario with Associate Justices Anacleto D.

Badoy, Jr. and Ma. Cristina Cortez-Estrada, concurring.

[3] Penned by Associate Justice Minita V. Chico-Nazario with Associate Justices Ma. Cristina
Cortez-Estrada, Raoul V. Victorino, Nicodemo T. Ferrer, concurring. Associate Justice Anacleto
D. Badoy, Jr. dissented.

[4] Records, pp. 29-30.

[5] Rollo, p. 56.

[6] Ibid., p. 90.

[7] See note 3.

[8] Rollo, p. 84.

[9] Ibid., p. 161.

[10] LUIS B. REYES, THE REVISED PENAL CODE, 15th ED., 2001, BOOK ONE, p. 202.

[11] Paragraph 1, Article 11 of the Revised Penal Code.

[12] People v. Oanis, 74 Phil. 257 (1943).

[13] Ibid..

[14] RAMON C. AQUINO AND CAROLINA C. GRIÑO-AQUINO, THE REVISED PENAL

CODE, 1997 ED., VOL. I, p. 205, citing United States v. Mojica, 42 Phil. 784 (1922).

[15] Supra note 12.

[16] 46 Phil. 738 (1922).

[17] LUIS B. REYES, THE REVISED PENAL CODE, supra note 10, p. 203.

[18] Ibid., p. 202.

[19] 83 Phil. 150 (1949).

[20] TSN, 11 July 1996, p. 21.

[21] Rollo, p. 47.

[22] LUIS B. REYES, THE REVISED PENAL CODE, supra note 10, p. 198.

[23] G.R. No. 150647, 29 September 2004, 439 SCRA 439.

[24] Calderon v. People and Court of Appeals, 96 Phil. 216 (1954).

[25] http://concise.britannica.com/ebc/article?tocId=9370808, 19 May 2005.

[26] http://world.guns.ru/assault/as18-e.htm, 19 May 2005.

[27] http://concise.britannica.com/ebc/article?tocdI=9370808, 19 May 2005.

[28] Ibid.

[29] http://www.olive-drab.com/od_other_firearms_rifle_m16.php3, 19 May 2005.

[30] http://world.guns.ru/assault/as18-e.htm, 19 May 2005.

[31] http://www.answer.com, 19 May 2005.

[32] Ibid.

[33] Exhibit “B-1.”

[34] Exhibit “A.”

[35] Exhibit “B.”

[36] Testimony of Dr. Dominic L. Aguda, TSN, 28 July 1994, p. 26.

[37] Testimony of Dr. Marcelo H. Gallardo Jr., TSN, 27 July 1994, pp. 19-20.