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Description

JOVITO CABUSLAY,

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division),

FACTS: Paquito Umas-as,

earned a living as a collector of payments for assorted articles such as jackets,

thermos and plates that he sold on credit

Paquito collected as much as P70,000

In collecting payments,

Paquito used a motorcycle he bought on credit from his employer

At around 8:30 in the morning of 5 August 1992,

Leoncio Tagapulot Zaragosa,

a refrigeration technician helper was conversing with Felix Lauriana near the school building when a Hammer (Hummer) truck parked in front of them

Four policemen alighted,

The police thereafter halted the collector who was riding a motorcycle

The police asked the collector to show his (ID)

The collector took the ID out of his left pocket and when it reached the “front man,” one of the policemen,

who Zaragosa later verified as the petitioner,

opened fire at the collector whose right hand was then raised

The four other policemen meanwhile had their firearms pointed at the collector

Petitioner,

who was four meters away from the collector,

consumed the entire magazine of his M-16 armalite in firing at him

The collector fell to the ground and was still moving when the police placed him on board a vehicle

One of the policemen rode on the collector’s motorcycle

Upon Dr

Uy’s examination,

it disclosed that the cause of death was severe hemorrhage secondary to multiple gunshot wounds

There were eight (8) gunshot wounds and each wound was considered fatal

A report revealed that the victim was negative for gunpowder nitrates

The defense presented a different version of the commission of the crime

In full military outfit,

the men established a mobile checkpoint on at the national highway for the purpose of intercepting armed men who intend to carry out an assassination plot

At about 8:30 in the morning,

a man riding on a red Honda motorcycle approached the mobile checkpoint

The motorcycle rider was allegedly wearing a black bonnet,

sweatshirt and gloves that covered the half portion of his fingers

Regencia testified that he signaled the motorcycle rider to stop at the right side of the road

He asked for the identification card of the motorcycle rider who pretended to reach for his wallet,

He heard a shot and his thigh went numb

As he rolled to the ground,

he heard a volley of gunshots after which petitioner approached him

Regencia then approached the motorcyclist and removed his bonnet to be able to identify him

Regencia later found out that the motorcyle rider was shot by petitioner

Regencia ordered his men to load the motorcycle rider to the truck

The victim later identified as Paquito Umas-as was still alive when he was loaded on the hummer vehicle to be brought to a hospital,

but was pronounced dead on arrival by Dr

Regencia then asked that he be given first-aid treatment for the wounds he sustained

Petitioner justified the shooting of Paquito Umas-as because he believed that he would be the next person to be shot at by the victim

and having acted in defense of his person and that of his superior officer,

he asserted before the court a quo that he has no criminal liability

The Sandiganbayan however gave credence to the version of the prosecution

It found him guilty beyond reasonable doubt of the crime of homicide

The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense among other: (1) The physical existence of the handgun allegedly used by the victim Paquito was not established as the same was not presented before the court during the trial (2) The number of gunshot wounds inflicted upon the victim betrays petitioner’s claim of reasonable necessity of the means used to repel the unlawful aggression allegedly displayed by the victim

ISSUES: 1

Whether or not there was unlawful aggression of the part of the victim that warrant the petitioner to act in self-defense

Does the petitioner establish a valid defense of a stranger

Was the killing a result of lawful performance of duty

HELD: 1

One who invokes self-defense admits responsibility for the killing

Accordingly,

the burden of proof shifts to the accused who must then prove the justifying circumstance

He must show by clear and convincing evidence that he indeed acted in self-defense,

or in defense of a relative or a stranger

With clear and convincing evidence,

all the following elements of self-defense must be established: (1) unlawful aggression on the part of the victim

(2) reasonable necessity of the means employed to prevent or repel it

and (3) lack of sufficient provocation on the part of the person claiming selfdefense

Unlawful aggression refers to an attack or a threat to attack,

positively showing the intent of the aggressor to cause injury

It presupposes not merely a threatening or an intimidating attitude,

sudden and unexpected attack or an imminent danger thereof,

which imperils one’s life or limb

there is no unlawful aggression

Aggression to be unlawful,

such that there is a real threat of bodily harm to the person resorting to selfdefense or to others whom that person is seeking to defend

Petitioner asserts that he was the victim’s next target,

thus the need to shoot the victim in self-defense

His claim should be disbelieved

As he himself had explicitly testified before respondent court,

the hummer jeep was behind him and was parked about three to four meters from the national high- way

He also stated that Paquito could not have seen the hummer jeep because it was obscured by Muslim houses

that if from Paquito’s perspective,

he cannot see the hummer jeep which is a fairly large vehicle,

then he could not have seen petitioner as well

If Paquito cannot see petitioner from where he was positioned,

then Paquito could not have possibly aimed to shoot at petitioner

Petitioner’s contention therefore that there was an imminent threat of bodily harm coming from Paquito upon his person is at best illusory

There was no peril,

there was no unlawful aggression

Likewise noteworthy is the fact that after the second burst of fire on Paquito,

knowing that Paquito was still alive and in all probability was still holding a handgun,

petitioner chose to assist Regencia instead of making sure that Paquito had been immobilized and disarmed,

basic to a policeman’s training

In addition,

the claim of the defense that Paquito shot Regencia on his right thigh is untenable

Petitioner would have the Court believe that Paquito dared challenge five policemen,

four of them in full battlegear,

at a checkpoint and armed with only a handgun

This is contrary to ordinary human experience,

as well as the human instinct which is to flee for dear life and seek safety

If indeed Paquito was armed and had criminal designs in his mind,

the natural tendency upon seeing a checkpoint ahead would be to abort one’s plans and leave the premises immediately

Petitioner’s story not only was contrary to the ordinary course of nature and the ordinary habits of life,

in all appearances it was also contrived

Respondent court was correct in rejecting it

The defense never presented in evidence the gun Paquito allegedly use to shoot Regencia

The gun was also not clearly identified

Unlawful aggression on the part of the victim must be positively proved and said gun would have been a vital evidence to establish this requisite

In order that defense of a stranger may be appreciated,

the following requisites must concur: (1) unlawful aggression by the victim

(2) reasonable necessity of the means to prevent or repel it

and (3) the person defending be not induced by revenge,

resentment or other evil motive

Even assuming that he tried to defend a stranger,

Granting arguendo that there was unlawful aggression,

we find that petitioner’s contention that he employed reasonable means to repel the aggression must fail

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

the nature and number of wounds suffered by Paquito negate any claim of self-defense or defense of a stranger

The Court notes that the victim sustained eight gunshot wounds which were all fatal as they affected vital organs

Petitioner testified that he pulled the trigger of his armalite twice

He aimed at “the front of his body,

” Had petitioner merely defended himself from the victim’s unlawful aggression,

one shot to immobilize him would have been enough

There was no reason for petitioner to shoot him seven more times,

even aiming at his vital organs

It bears repeating that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia which disprove a plea for self-defense or defense of stranger because they demonstrate a determined effort to kill the victim and not just defend one-self

In the instant case,

Paquito’s wounds serve to tell us that petitioner was induced by revenge,

resentment or other evil motive and that he was set on killing the victim

Petitioner contends that the killing of Paquito resulted from the lawful performance of his duty as police officer

However,

such justifying circumstance may be invoked only after the defense successfully proves that the accused acted in the performance of a duty,

and the injury or offense committed is the necessary consequence of the due performance or lawful exercise of such duty

These two requisites are wanting in this case

The victim was not committing any offense at the time

Petitioner has not sufficiently proven that the victim had indeed fired at Regencia

Killing the victim under the circumstances of this case cannot in any wise be considered a valid performance of a lawful duty by a man who had sworn to maintain peace and order and to protect the lives of the people

As aptly held in People v

“Performance of duties does not include murder

Murder is never justified,