“You Shall Not Kill”: A Discourse on the Illusive Paradox of Legitimate Defense

By Juris Bernadette M. Tomboc

I. Introduction

There has always been much interest on what constitutes legitimate defense considering real life cases and that individuals and society encountered and the corresponding legal and moral issues that they faced. This paper aims to shed light on what legitimate defense consists of through a discussion of the basis and requisites of the justifying circumstances of lawful defense under the Revised Penal Code and of various examples of cases concerning lawful defense decided by the courts.

Unlike the Revised Penal Code that enumerates specific requisites that must be present in claiming self-defense and defense of relative: unlawful aggression, lack of sufficient provocation on the part of the person making the defense and reasonable necessity of the means employed to repel the aggression. In defense of strangers, and additional requisite is that the person making the defense must not be motivated by hatred, revenge or some other evil motive.

On the other hand, the Encyclical does not specify any particular requisite of legitimate defense. Instead, the Encyclical sets forth two commandments, which in reality may sometimes be hard to reconcile in practice. The first is regarding the intrinsic value of life, a duty to love oneself and right to protect one’s own life and the second is a commandment to love one’s neighbor and duty not to harm someone else’s life.

Is there a disparity between what the Revised Penal Code considers as legitimate defense and the Church’s commandments? This paper will also to address this seeming paradox.

II. The Church’s Teaching

The Roman Catholic Church’s teaching on legitimate defense is clearly set forth in Pope John Paul II’s Encyclical entitled Evangelium Vitae, thus:

“As time passed, the Church’s Tradition has always consistently taught the absolute and unchanging value of the commandment “You shall not kill.” It is a known fact that in the first centuries, murder was put among the three most serious sins – along with apostasy and adultery – and required a particularly heavy and lengthy public penance before the repentant murderer could be granted forgiveness and readmission to the ecclesial community.” (Evangelium Vitae, 1995)

“This should not cause surprise: to kill a human being in whom the image of God is present, is a particularly serious sin. Only God is the master of life! Yet from the beginning, faced with the many and often tragic cases which occur in the life of individuals and society, Christian reflection has sought a fuller and deeper understanding of what God’s commandment prohibits and prescribes. There are, in fact, situations in which values proposed by God’s Law seem to involve a genuine paradox. This happens for example in the case of legitimate defence, in which the right to protect one’s own life and the duty not to harm someone else’s life is difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others is the basis of a true right of self-defence. The demanding commandment of love of neighbor, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: “You shall love your neighbor as yourself” (Mk 12:31). Consequently, no one can renounce the right of self-defence out of lack of love for life or for self. This can only be done in virtue of a heroic love which deepens and transfigures the love of self into a radical self-offering, according to the spirit of the Gospel Beatitudes (cf. Mt 5:38-40). The sublime example of this self-offering is the Lord Jesus himself.” (Evangelium Vitae, 1995)

“Moreover, “legitimate defence can be not only a right but a grave duty for someone responsible for another’s life, the common good of the family or of the state.” Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not morally be responsible because of a lack of the use of reason.” (Evangelium Vitae, 1995)

“This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society. The primary purpose of the punishment which society inflicts is “to redress the disorder caused by the offence.” Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated.” (Evangelium Vitae, 1995)

“It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the penal system, such cases are very rare, if not practically non-existent.” (Evangelium Vitae, 1995)

“In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.” (Evangelium Vitae, 1995)

“If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment “You shall not kill” has absolute value when it refers to the innocent person. And all the more so in the case of weak and defenceless human beings, who find their ultimate defence against the arrogance and caprice of others only in the absolute binding force of God’s commandment.” (Evangelium Vitae, 1995)

“In effect, the absolute inviolability of innocent human life is a moral truth clearly taught by Sacred Scripture, constantly upheld in the Church’s Tradition and consistently proposed by her Magisterium. This consistent teaching is the evident result of that “supernatural sense of the faith” which, inspired and sustained by the Holy Spirit, safeguards the People of God from error when “it shows universal agreement in matters of faith and morals.”” (Evangelium Vitae, 1995)

“Faced with the progressive weakening in individual consciences and in society of the sense of the absolute and grave moral illicitness of the direct taking of all innocent human life, especially at its beginning and at its end, the Church’s Magisterium has spoken out with increasing frequency in defence of the sacredness and inviolability of human life. The Papal Magisterium, particularly insistent in this regard, has always been seconded by that of the Bishops, with numerous and comprehensive doctrinal and pastoral documents issued either by Episcopal Conferences or by individual Bishops.The Second Vatican Council also addressed the matter forcefully, in a brief but incisive passage.” (Evangelium Vitae, 1995)

“Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the Bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral. This doctrine, based upon that unwritten law which man, in the light of reason, finds in his own heart (cf. Rom 2:14-15), is reaffirmed by Sacred Scripture, transmitted by the tradition of the Church and taught by the ordinary and universal Magisterium.” (Evangelium Vitae, 1995)

III.Statement of Issues

This paper will address the following issues through a discussion of court case decisions:

A.What are the justifying and other circumstances which exempt persons from criminal liability under the Revised Penal Code?

B.What is the basis and rationale and what are the requisites of legitimate defense?

C.What constitutes the requisites of unlawful aggression, lack of sufficient provocation on the part of the one making the defense and reasonable necessity of means employed to repel aggression?

This paper will also address the question of whether or not there is a disparity between what the Revised Penal Code considers as legitimate defense and the Church’s commandments.

IV. Discussion: The Revised Penal Code and related jurisprudence

Under the Classical School, a person unlawfully attacked has to defend himself following his instinct of self-preservation because the State cannot always come to his aid. Under the Positivist School, self-defense is an exercise of a right; anything done to repel an unlawful attack is an act of social justice. Thus, as stated by the Court in People vs. Bolholst-Caballero (61 SCRA 180):

“The law on self-defense embodied in any penal system in the civilized world finds justification in man’s natural instinct to protect, repel, and save his person or rights from impending danger or peril it is based on the impulse of self-preservation born to man and part of his nature as a human being, Thus, in the word of the Romans of ancient history: Quod quisque obtutelam corporis sui fecerit, jure suo fecisse existimetur. To the Classicists in penal law, lawful defense is grounded on the impossibility on the part of the State to avoid a present unjust aggression and protect a person unlawfully attacked, and therefore it is inconceivable for the State to require that the innocent succumb to an unlawful aggression without resistance; while to the Positivists, lawful defense is an exercise of a right, an act of social justice done to repel the attack of an aggressor.”

Article 11 of the Revised Penal Code sets forth the justifying and other circumstances which exempt persons from criminal liability, viz.:

“Art. 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.

2.Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein.

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

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

First. That the evil sought to be avoided actually exists.

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

5.Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.

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

The basis of the foregoing provisions is the lack of criminal intent. There is no crime as long as the requisites provided by law are present. Since there is no crime, there is also no civil liability, except in paragraph 4 above wherein those whose properties were spared will be proportionately liable for the damage caused to the property of the victim. (Regalado, 2000)

A. Self-defense

The requisites of self-defense (paragraph 1) are (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to repel it; and (c) lack of sufficient provocation by the person making the defense.

Self-defense includes defense of life, property, honor or rights. The provision allows reasonable defense by the owner or possessor of property without requiring a simultaneous attack on his person. (People vs. Narvaez, G.R. Nos. L-33466-67, April 20, 1983)

Rights include civil, political and natural rights, in addition to the rights embraced in defense of property, chastity and honor. Self-defense has also been applied to the crime of libel. (People vs. Chua Chiong, [CA] 51 O.G. 1932)

An accused who claims self-defense must prove its elements clearly and convincingly. Such proceeds from his admission that he killed or wounded another for which he should be criminally liable unless he establishes to the court the fact of self-defense. (People vs. Castañares, 92 SCRA 567)

The affirmative defense of self-defense under Article 11, paragraph 1 of the Revised Penal Code, is a weak defense. The accused who invokes self-defense thereby admits having killed the victim and the burden of evidence is shifted to him to prove, with clear and convincing evidence, the existence of the essential requisites of self-defense.

Thus, the Court explained in the case of People vs. Loreto Noay (G.R. No. 122102, September 25, 1998):

“It is basic in criminal law that where the accused admits committing the crime but invokes self-defense to escape criminal liability, the general rule that the burden of proving the guilt of the accused lies on the prosecution is reversed and the burden of proof is shifted to the accused to prove the elements of his defense. To be entitled to this justifying circumstance, the accused must prove by clear and convincing evidence that he acted in defense of himself.

The evidence presented by appellant before the trial court can hardly be said to be clear and convincing as his testimony and that of his witness are replete with contradictions within themselves and with each other. Like the trial court, we notice a number of statements given by appellant 28 during the hearing on his petition for bail which are inconsistent with his testimony in support of his defense. x x x

More importantly, appellant's theory of self-defense crumbles in the face of the testimony of the prosecution witnesses who actually saw the stabbing and who fell victims to his murderous acts. Bebina gave a detailed account of her traumatic experience in witnessing the killing of her husband and the stabbing of her two sons. Annabelle vividly saw the killing of Paterno and the wounding of Regino. During the trial, the victims themselves, Regino and Pedrito, were likewise able to positively identify appellant as their assailant.

On their own, the separate testimonies of these four witnesses were given in a categorical, consistent and direct manner. A witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent is a credible witness. Taken together, the testimonies of the prosecution witnesses are not only consistent in all material respects but also abound with uniform details on the perpetration of appellant's criminal acts. This harmony in the testimonies of the four eyewitnesses of the prosecution leads to the conclusion that they are the ones telling the truth.”

The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution since having invoked self-defense, he is deemed to have admitted having killed the victim. However, he disclaims legal liability on the ground that his life had been exposed to harm first before he was justified in committing the act in defense of himself.

1. Unlawful aggression

Unlawful aggression by the victim against the accused is the most important element in self-defense or defense of one’s honor, property or rights, as well as in defense of relatives and strangers. This is but logical since if there is no unlawful aggression, there is nothing to prevent or repel. For that matter, if there is no unlawful aggression, the accused will likewise not be entitled to the privileged mitigating circumstance of incomplete self-defense. (Regalado, 2000)

Unlawful aggression must by actual and imminent, and not merely imaginary. (People v. Alconga, 78 Phil. 366) Unlawful aggression refers to an actual, sudden and unexpected attack, an imminent danger thereof, which poses danger to one’s life or safety, or a threat to attack positively showing the intent of the aggressor to cause injury and not merely a threatening or intimidating attitude.

There will no longer be any unlawful aggression when its author does not persist in his purpose, or when he discontinues his aggression such that the object of his attack is no longer in peril or if the aggressor ran away after the attack. (People vs. Alconga, 78 Phil. 366; People vs. Mendoza, [CA] G.R. No. 03962)

The Court in the case of People vs. Alconga (78 Phil. 366) decided, thus:

“It will be observed that there were two stages in the fight between appellant and the deceased. The initial stage commenced when the deceased assaulted appellant without sufficient provocation on the part of the latter. Resisting the aggression, appellant managed to have the upper hand in the fight, inflicting several wounds upon the deceased, on account of which the latter fled in retreat. From that moment there was no longer any danger to the life of appellant who, being virtually unscathed, could have chosen to remain where he was. Resolving all doubts in his favor, considering that in the first stage the deceased was the unlawful aggressor and defendant had not given sufficient provocation, and considering further that when the deceased was about to deliver the third blow, appellant was still in a crawling position and, on that account, could not have effectively wielded his bolo and therefore had to use his "paltik" revolver — his only remaining weapon — ; we hold that said appellant was then acting in self-defense. (Emphasis supplied.)

But when he pursued the deceased, he was no longer acting in self-defense, there being then no more aggression to defend against, the same having ceased from the moment the deceased took to his heels. During the second stage of the fight appellant inflicted many additional wounds upon the deceased. That the deceased was not fatally wounded in the first encounter is amply shown by the fact that he was still able to run a distance of some 200 meters before being overtaken by appellant. Under such circumstances, appellant's plea of self-defense in the second stage of the fight cannot be sustained. There can be no defense where there is no aggression.

"Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason that it is shown that he struck several blows, among them the fatal one, after the necessity for defending himself had ceased, his assailant being then in retreat. Therefore one of the essential ingredients of self-defense specified in No. 4, article 8 of the Penal Code is wanting" (now article 11, case No. 1, Revised Penal Code). (United States vs. Dimitillo, 7 Phil. 475)

And, again:

“That provocation gave rise to a fight between the two men, and may be said, not without reason, to have spent itself after appellant had shot the deceased in his right breast and caused the latter to fall to the ground; or — making a concession in appellant's favor — after the latter had inflicted several bolo wounds upon the deceased, without the deceased so much as having scratched his body in their hand-to-hand fight when both were on their feet again. But if we are to grant appellant a further concession, under the view most favorable to him, that aggression must be deemed to have ceased upon the flight of the deceased — upon the end of the first stage of the fight. In so affirming, we had to strain the concept in no small degree. But to further strain it so as to find that said aggression or provocation persisted even when the deceased was already in flight, clearly accepting defeat and no less clearly running for his life rather than evincing an intention of returning to the fight, is more than we can sanction. It should always be remembered that "illegal aggression" is equivalent to assault or at least threatened assault of an immediate and imminent kind. x x x

It is true that in the case of United States vs. Rivera (41 Phil., 472), this Court held that one defending himself or his property from a felony violently or by surprise threatened by another is not obliged to retreat but may pursue his adversary until he has secured himself from danger. But that is not this case. Here from the very start appellant was the holder of the stronger and more deadly weapons — a revolver and a bolo, as against a piece f bamboo called 'pingahan" and a dagger in the possession of the deceased. In actual performance appellant, from the very beginning, demonstrated his superior fighting ability; and he confirmed it when after the deceased as first felled down by the revolver shot in his right breast, and after both combatants had gotten up and engaged in a hand-to-hand fight, the deceased using his danger and appellant his bolo, the former received several bolo wounds while the latter got through completely unscathed. And when the deceased thereupon turned and fled, the circumstances were such that it would be unduly stretching the imagination to consider that appellant was still in anger from his defeated and fleeing opponent. Appellant reserved his revolver and his bolo, and if he could therefore so easily overpower the deceased, when the latter ad not yet received any injury, it would need, indeed, an unusually strong positive showing — which is completely sent from the record — to persuade us that he had not "secured himself from danger" after shooting his weakly armed adversary in the right breast and giving him several bolo slashes in different other parts of his body. To so hold would, we believe, be unjustifiably extending the doctrine of the Rivera case to an extreme not therein contemplated.” (Emphasis supplied.)

The act of self-defense must immediately follow the unlawful aggression. (U.S. vs. Ferrer, 1 Phil. 56) Otherwise, if some time has already lapsed after the unlawful aggression, such would no longer constitute self-defense but instead merely retaliation or revenge. (People vs. Banzuela, 31 Phil. 564)

Self-defense is different from retaliation in that in retaliation, the inceptual unlawful aggression had already ceased when the accused attacked him. In self-defense, the unlawful aggression must still be existing when the aggressor was injured or disabled by the person making the defense. (People of the Phil. vs. George R. Decena, G.R. No. 107874, August 4, 1994; People of the Phil. v. Alfredo Gallego, et al., G.R. No. 127489, July 11, 2003)

The facts in the case of People vs. Decena (G.R. No. 107874) show that the inceptual unlawful aggression had already ceased when the accused attacked the deceased since he left when the barangay tanod intervened and told him to go home. The motive of the accused seems to be more of retaliation than defense considering that when the deceased while in an inebriated condition poked a fork into the neck of the accused in front of many people in the town basketball court, the accused likely felt insulted. Further, the deceased did not really put the life of the accused in danger since many witnesses testified that he walked in a wobbly manner due to his drunkenness and it appeared that the accused is much stronger than the deceased. The deceased was forty-three years old while the accused was twenty-five years old at the time of the incident. Thus, the Court said:

“The basic requirement for self-defense, as a justifying circumstance, is that there was an unlawful aggression against the person defending himself. It must be positively shown that there was a previous unlawful and unprovoked attack that placed the life of the accused in danger and forced him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means to resist said attack. x x x

Even on the elementary rule that when the aggressor leaves, the unlawful aggression ceases, it follows that when appellant and Jaime heeded the advice of the barangay tanod for them to go home, the unlawful aggression no longer existed, appellant had no right whatsoever to kill or even wound the former aggressor. x x x

When appellant claimed that Jaime suddenly and without any provocation tried to strangle him and poked a fork against his neck, in front of so many people in the basketball court, then he must necessarily have been deeply offended, if not insulted, and this fact undoubtedly fired him with a desire to get even with the deceased.

The case at bar calls to mind the scenario and logical view that when a person had inflicted slight physical injuries on another, without any intention to inflict other injuries, and the latter attacked the former, the one making the attack was an unlawful aggressor. The attack made was evidently a retaliation. And, we find this an opportune occasion to emphasize that retaliation is different from an act of self-defense. In retaliation, the aggression that was begun by the injured party already ceased to exist when the accused attacked him. In self-defense, the aggression was still existing when the aggressor was still existing when the aggressor was injured or disabled by the person making a defense. x x x

Witnesses for and against the appellant testified that throughout the incident Jaime was inebriated and that he was staggering or wobbling as he walked. If he had such difficulty even in performing the normal bodily function of locomotion, it could not be expected that he would muster enough courage to persist in attacking and attempting to kill appellant, as posited by the defense, considering that the latter was decidedly stronger than him.”

Likewise, in the case of People vs. Gallego, et al. (G.R. No. 127489, July 11, 2003) the Court decided that the alleged inceptual unlawful aggression had already ceased when the deceased was killed by the appellant. According to the eyewitness, there were several people who conspired in the killing but only one admitted that he killed the deceased in order to spare the others from criminal liability. The Court’s decision follows:

“Appellant Alfredo Gallego admitted stabbing and killing the victim but claimed that he acted in self-defense. The other appellants denied involvement in the killing. The appellants adduced evidence that the crew members and Alexander, had a drinking spree in the latter's house. They consumed eight bottles of Tanduay ESQ and feasted on cooked fish. Shortly after their drinking spree, the group went back to F/B Ever IV. Exhausted and intoxicated, the appellants, except Alfredo, went to sleep. As soon as they arrived at the motor boat at about 8:00 p.m., Alexander ordered food from Alfredo, the cook of the boat. Alfredo only gave rice to Alexander, and told the latter that he was not able to cook any viand. Alexander was incensed and told the appellant that he was a useless cook and it would be better for him to resign from his employment. The appellant ignored Alexander's diatribes and went to the kitchen to tidy things up. Meanwhile, Alexander went to the kitchen and took the knife from the tray near the door. With the knife in his hand, Alexander went near the appellant. The appellant moved backward towards the front part of the boat but Alexander pursued the appellant. When he was cornered, Alfredo was forced to grapple with Alexander for the possession of the knife. With his left hand, Alfredo held the victim's right forearm, and with his left hand, twisted the victim's right hand towards the chest. Alexander placed his left hand on Alfredo's shoulder. Alfredo was able to wrest possession of the knife, and stabbed the victim on the chest. Alexander placed his right hand on Alfredo's other shoulder, as he was stabbed on the chest, on the abdomen and on the back. Alexander fell, his head hitting the edge of the deck. Alfredo could no longer remember the number of times he stabbed the victim. He forthwith awakened the other appellants and informed them that he had just killed Alexander. x x x

An act of aggression when its author does not persist in his purpose, or when he discontinues his aggression such that the object of his attack is no longer in peril, is not unlawful aggression. Self-defense must be distinguished from retaliation; in that in retaliation, the inceptual unlawful aggression had already ceased when the accused attacked him. In self-defense, the unlawful aggression was still existing when the aggressor was injured or disabled by the person making the defense.

In this case, the trial court and the Court of Appeals debunked appellant Alfredo's defense and gave credence with full probative weight to the testimony of Elpidio Suarez. We agree with the trial court and the Court of Appeals. Indeed, the evidence on record belies his plea of self-defense.

x x x The victim sustained no less than six (6) stab wounds; two of the stab wounds were elliptical, on the right side of the chest, severing the upper lobe of the right lung and the descending aorta, while the other four (4) stab wounds were located at the right side of the interscapular area. The number, locations and depth of the wounds sustained by the victim belie appellant Alfredo's pretension that he killed the victim in self-defense; the same are proof that Alfredo intended to kill the victim and not merely to defend himself.

Dr. Maximo Reyes testified that the multiplicity and nature of the injuries indicted on the victim clearly indicate that there was more than one attacker. He also confirmed that stab wounds nos. 1 and 2 in his autopsy report, even if attended medically, were bound to cause the victim's instantaneous death due to severe blood loss since the said wounds cut the blood vessels going to the heart and lungs, and severed circulation from the aorta to the heart. This was corroborated by Dr. Acuesta who, in addition, testified that the wounds on the arms of the victim showed that it was the victim who tried to defend himself from his assailants. It certainly defies reason why Alfredo had to inflict such injuries on the victim if he was only defending himself. The findings of the trial court belie appellant Alfredo's claim that he also stabbed the victim with his knife.

Moreover, the Court has carefully examined and measured the fatal knife. It was six (6) inches long with the blade of the knife about two and a half (2½) inches long and the handle is three and one half (3½) inches long. The blade of the knife was one (1) centimeter wide at its widest part. It was sharp on one side of the blade but not the back part. Yet, some of the stab wounds were six (6) or ten (10) inches deep.”

Aggression cannot justify self-defense if it is not continuous. (People vs. Macariola, L-40757, January 24, 1983, 120 SCRA 92, citing People vs. Yunan, 61 Phil. 786 (1935); People vs. Aguitan, L-32072, July 25, 1983, 123 SCRA 501)

Likewise, there is no unlawful aggression when the accused was the one who challenged or provoked the deceased to a fight. (People vs. Valencia, 133 SCRA 82)

2. Reasonable necessity of means employed to repel aggression

“Reasonable” in the requirement for “reasonable necessity of the means employed” applies to both the necessity and the means employed. The place, occasion and surrounding circumstances determine the reasonableness of the necessity for the course of action taken by the accused. Thus, in the case of People vs. Ah Chong (G.R. No. 5272, March 19, 1910), the Court held that, there is no criminal liability considering that ignorance or mistake of fact was not due to negligence or bad faith.

The facts in the case of People vs. Ah Chong (G.R. No. 5272, March 19, 1910) narrate that defendant was a cook and the deceased was a house boy. Both were employed in the same place and slept in the same room. One night, after the defendant had gone to bed, he was awakened by the sound of someone trying to open the door. He called out twice, "Who is there?" He received no answer. Fearing that the intruder was a robber, he leaped from the bed and again called out: "If you enter the room I will kill you." At that moment the chair which he placed against the door struck him. Believing that he was already being attacked, he seized a kitchen knife and struck and fatally wounded the intruder, who turned out to be his roommate. He called his employers and rushed back into the room to secure bandages to bind up the deceased’s wound. The defendant was charged with murder.

The Court explained that there can be no doubt of defendant's exemption from liability if the intruder had really been a robber. However, the question was whether a person can be held criminally responsible when he does an act for which he would be exempt if the facts were as he supposed them to be.

The Court held that such ignorance or mistake of facts is sufficient to negative malicious intent. It destroys the presumption of intent and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions governing negligence. However, a person who voluntarily commits a criminal act incurs criminal liability even though the act be different from that which he intended. (Art. 1, Revised Penal Code)

"In no one thing does criminal jurisprudence differ more from civil that in the rule as to intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that —

"There can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or moral sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exist. We find this doctrine confirmed by —

"Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, 'the act itself does not make a man guilty unless his intention were so;' Actus me invito factus non est meus actus, 'an act done by me against my will is not my act;' and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

"Moral science and moral sentiment teach the same thing. 'By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the same ground, we hold him innocent.' The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason the public voice that were the mind is pure, he who differs in act from his neighbors does not offend. And —

"In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong." (U.S. vs. Ah Chong, G.R. No.5272, citing Bishop's New Criminal Law)

Further --

“Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability, provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Ah Chong, G.R. No. 5272, citing Bishop's New Criminal Law)

The reasonableness of the means employed may take into account the weapons, physical condition of the parties and other circumstances showing that there is rational equivalence between the means of attack and defense. In People vs. Encomienda (G.R. No. L-26750, August 18, 1972) the Court ruled that reasonable necessity of the means employed to repel the unlawful aggression cannot be disputed, thus:

“That there is reasonable necessity of the means employed by herein appellant to prevent or repel the unlawful aggression cannot seriously be disputed. x x x

When the deceased drew his gun with his right hand, the appellant merely grabbed the right hand of the deceased holding the gun, pinning said right hand on the stairs with out striking the deceased with the bolo in his right hand. After the gun fired four times continuously as they struggled, it was only then that appellant struck the right forearm of the victim with his bolo. Appellant could have continued hacking the deceased right then and there. But he did not. He boloed the victim's left forearm because the victim tried to get the gun from his right hand. And then he just shook the right arm of the victim downward, forcing the latter to release the gun which fell to the ground. It was only when the deceased tried to pick up the gun that the appellant boloed him on the forehead. As heretofore stated, appellant had no time to coolly deliberate on whether he could save himself by just kicking the gun away or by just pushing or boxing the victim or stepping on the hands of the deceased to prevent him from getting the gun and firing the same at him. The immediate danger to his life precluded such serene rationalization on his part.

It should be stressed that the victim did not sustain any gunshot wounds. After taking possession of the victim's revolver, appellant did not use it against the victim to finish him off, nor did he continue hacking the deceased with his bolo. He was free to do either as the victim was completely rendered hors de combat. Instead the appellant allowed the disabled and defenseless victim to wash his wounds with water in appellant's own wooden box.

In U.S. vs. Molina (19 Phil. 227), the accused was unarmed while the deceased attacked him with a bolo. After overpowering the deceased and wresting the bolo from him, the accused struck the deceased several times with the bolo thereby killing him almost instantaneously as the deceased tried to seize a hatchet. Under the circumstances, we held that the accused employed reasonable means to repel the assault against his life.

In People vs. Rabandaban (85 Phil. 636), one night appellant found his wife lying in bed with another man, who escaped through the window. He scolded his wife and ordered her to leave the house. Calling him names, the wife gathered her clothes and picked up a bolo in the kitchen. When the accused husband followed her there, she attacked him with the bolo, wounding him twice on the abdomen. Wresting the bolo from his wife, appellant stabbed her with it in the breast, causing her death that same night. We ruled that the appellant acted in self-defense and that there was reasonable necessity of the means employed by him to repel the attack. We overruled the opinion of the trial court wherein it stated that appellant could have saved himself by throwing away the bolo after wresting it from his wife and that there was no need for him to stab her once she was disarmed; because she struggled to regain possession of the bolo, justifying appellant's belief that his wife wanted to finish him off. Considering that he must have been losing strength due to loss of blood, with his wife armed to fight to the finish, it would have been sheer folly or stupidity on his part to throw away the bolo so that his wife may again use it against him.

In People vs. Sumikat (56 Phil. 643), a bolo was considered a reasonable means of repelling an attack by a bully of known violent disposition, who was larger and stronger than the accused and who was trying to wrest the bolo from him.

In People vs. Lara (48 Phil. 153), supra, the use of a pistol in shooting to death the deceased who was much stronger than the appellant and who in the darkness and from behind suddenly threw his arms around appellant and attempted to wrest the pistol from him, was considered reasonably necessary; because by reason of the darkness as well as the superior strength of the deceased, there was probability that the deceased would seize control of the pistol and use it against appellant.”

The Court in the case of People vs. Encomienda (G.R. No. L-26750, August 18, 1972) ruled affirmatively on the existence of unlawful aggression and cited similar cases, as follows:

“Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind. Here when the deceased drew his gun with his right hand, appellant grabbed with his free left hand the victim's right hand holding the revolver, forced the victim to lean on the stairs and pinned the victim's right hand also on the stairs. During the struggle, the revolver fired four times continuously and he hacked the victim's right forearm. When the victim tried to get the gun with his left hand, appellant boloed the victim's left arm and then shook the victim's right arm downward causing the gun to fall to the ground. When the victim tried to pick up the gun, appellant stepped backward and hacked the victim's forehead, after which he himself picked up the gun so as to prevent the victim from retrieving the same.

If the deceased had no intention to use his gun on the appellant, he would not have drawn it or resisted appellant's attempt to prevent him from using it. There was therefore real danger to the life or personal safety of the appellant.

The instant case is quite analogous to the case of People vs. Pangan, et al. (56 Phil. 728) wherein the accused, also an agricultural share tenant, killed with a penknife the superintendent of the hacienda. When the accused therein denied the charge of the superintendent that he was letting his carabaos run loose to destroy the tender sugar cane shoots, the deceased while berating him, struck him twice with a whip hitting him (the accused) on the left temporal and occipital regions causing his ear to bleed, against which the accused offered no resistance but only tried to evade the blows. After they were separated by a third party, the accused sat down on an acacia trunk, but the deceased approached him again and insultingly asked him whether he wanted to fight, to which accused replied he would not fight. Thereafter, the accused retired to his home. Between four and five o'clock in the afternoon of the same day, accused went to the house of the deceased to ask him to return his two cows that had been caught but the deceased kicked him and struck him with a cane, causing a welt on this left shoulder. As the accused stepped back to avoid the second blow aimed at him, the deceased placed his right hand upon the handle of the revolver he carried by his waist. When the accused saw this intention of the deceased, he drew his knife and opened it with his teeth. The deceased then drew his revolver; but before he could fire it, the accused wrestled with him and caught the hand holding the gun. During the ensuing struggle, both fell to the ground, the deceased upon his back, while the accused upon him, with one hand gripping the deceased's hand holding the revolver and with the other stabbing the deceased on the abdomen and other parts of the body including the right arm compelling the deceased to drop the revolver. Then the accused took hold of the revolver and threw it to one side. Thereafter, he ran to the municipal building and surrendered to the authorities. The defense of the accused in said case was sustained by this Court.

In U.S. vs. Domen (37 Phil. 57), the theory of self-defense was likewise upheld. There the deceased and the accused quarreled about a carabao which had gotten into the corn patch of the deceased, who, by reason thereof, struck the accused four or five times with a piece of wood about one yard long and about the size of one's wrist. The accused did not retreat but struck back wounding the deceased on the forehead.

In U.S. vs. Mojica (42 Phil. 784), the deceased, a constabulary soldier, resisted arrest, struck the arresting policeman with a fist, drew a mess kit knife and brandished it at the accused, and other policeman, who retreated a step or two, drew his revolver and fired, killing the soldier. We ruled that the policeman acted in self-defense.”

The means must be commensurate taken from the viewpoint of the one making the defense. Rational necessity is determined by the situation as it appears to the individual who is the object of the aggression. The instinct of self-1preservation is more often than not the impelling force that moves one to defend himself. (People vs. Artuz, 71 SCRA 116)

In the case of Eslabon vs. People of the Phil., et al. (G.R. No. L-66202, February 24, 1984), the appellant Eslabon rushed to aid his first cousin Francisco who had already suffered a substantially serious wound with the scythe imbedded in his right armpit which the deceased aggressor did not let go. Since there was evidence that the deceased aggressor was bigger than Francisco, he could have inflicted with a little more effort a much more serious, if not fatal, wound on Francisco. The stab wounds inflicted by appellant on the deceased were all directed at the left forearm of the deceased, sustaining his statement that he did not intend to seriously injure the deceased but merely wanted the latter to release his hold on Francisco. In view of the fact that the deceased and Francisco were grappling with each other, it is entirely credible that the same knife thrust at the deceased’s left arm caused the wound on his left chest as testified by the attending doctor, which wound unfortunate proved fatal. Under the emergency situation confronting the petitioner, it would have been rash and unnatural on his part if he were yet to look for a police officer instead of rushing to the defense of Francisco who was under serious attack and in grave danger. The Court ruled:

“The gauge of rational necessity of the means employed to repel aggression as against one’s self or in defense of a relative is to be found in the situation as it appears to the person repelling the aggression. It has been held time and again that the reasonableness of the means adopted is not one of mathematical calculation or “material commensurability between the means of attack and defense” but the imminent danger against the subject of the attack as perceived by the defender and instinct more than reason that moves the defender to repel the attack. It has further been stressed in such cases that to the imminent threat of the moment, one could not be hoped to exercise such calm judgment as may be expected of another not laboring under any urgency and who has sufficient time to appraise the urgency of the situation.”

What is reasonable is determined by the situation as it appears to the victim at the time of the assault. Thus, the Court in the case of United States vs. Mariano Singson (G.R. No. 15697, September 6, 1920, 41 Phil. 53) held:

“The law does not require, and it would be too much to ask of the ordinary may, that when he is defending himself from a deadly assault, in the heat of an encounter at close quarters, he should so mete out his blows that upon a calm and deliberate review of the incident, it will not appear that he exceeded the precise limits of what was absolutely necessary to put his antagonist hors de combat, or that he struck one blow more than was absolutely necessary to save his own life; or that he failed to hold his hand so as to avoid inflicting a fatal wound where a less severe stroke might have served the rational necessity in repelling the assault. But the measure of rational necessity in cases of this kind is to be found in the situation as it appears to the victim of the assault at the time when the blow is struck, and the courts should not and will not, in the light of after events or fuller knowledge, hold the victims of such deadly assaults at close quarters, to so strict a degree of accountability that they will hesitate to put forth their utmost effort in their own defense when it seems to them to be reasonably necessary.”

The reasonableness of the means employed to prevent and aggression depends upon the nature and quality of the weapon used by the aggressor, his physical condition, size, character and the surrounding circumstances in relation to the person defending himself. The Court in the case of People of the Philippines vs. Zambarrano (54 O.G. 8455) stated, thus:

“The reasonableness of the means employed to prevent an aggression depends upon the nature and quality of the weapon used by the aggressor, his physical condition, his size, his character and the surrounding circumstances vis-à-vis those of the person defending himself. It is also well-settled that in emergencies which imperil the life and limb of a person, human nature acts not upon processes of formal reason but in obedience to the imperious dictates of the instinct of self-preservation… the protective mantle of the law shields not only him who repels actual aggression but as well as him who prevents and aggression that is real and imminent. And the killing of the aggressor would be justified at a time when all the elements of self-defense are present.”

Reasonable necessity of the means employed in self-defense does not depend upon the harm done but rests upon the imminent danger of such injury. Thus, in the Court in the case of People vs. Bolholst-Caballero (61 SCRA 180), held:

“The second element that is reasonable necessity for the means employed is likewise present. Here we have a woman who being strangled and choke by a furious aggressor and rendered almost unconscious by the strong pressure on her throat had no other recourse but to get hold of any weapon within her reach to save herself from impending death. Early jurisprudence of this Court has followed the principle that the reasonable necessity of the means employed in self-defense does not depend upon the harm done but rests upon the imminent danger of such injury. (U.S. vs. Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact that there was no visible injury caused on the body of the appellant which necessitated medical attention, a circumstance noted by the trial court, is no ground for discrediting self-defense; what is vital is that there was imminent peril to appellant’s life caused by the unlawful aggression of her husband. The knife tucked in her husband’s belt afforded appellant the only reasonable means with which she could free and save herself from being strangled to death.”

Reasonableness of means is not measured by formal reason or mathematical calculation but depends more on the instinct of self-preservation. Thus, the Court stated in the cases of People of the Phil. vs. Gregorio Lara (G.R. No. 24014, October 16, 1925, 48 Phil. 153) and People of the Phil. vs. Danilo Punzalan (G.R. No. L-54562, August 6, 1987):

“In emergencies of this kind, human nature does not act on processes of formal reason but in obedience to the instinct of self-preservation, and when it is apparent that a person has reasonably acted upon this instinct, it is the duty of the courts to sanction the act and to hold the actor irresponsible in law for the consequences.”

The undisputed facts in the case of People of the Phil. vs. Danilo Punzalan (G.R. No. L-54562, August 6, 1987) are as follows:

“(A)t about 9:30 P.M. June 11, 1978, a group of ten (10) male persons was at the Nordel Restaurant, Dr. Santos Street, Sucat, Parañaque, Metro Manila, for food and beer. The group included the four accused, Danilo Punzalan, Ramon Jumawan, Vget Ison, and Guilbert Cuison. Wally Punzalan, brother of Danilo Punzalan was also there. The owner of the restaurant, Adelaida Borinaga, was also present as was one Elizabeth Mendoza, waitress, who waited on the group. The ten persons seated themselves about a round table at the center of the eating place as they partook of the food and drinks.

Cpl. Maximo de los Santos, a traffic policeman of Parañaque, was also in the restaurant, in civilian clothes, drinking beer, seated at the counter some five meters away from the table of the group. He ordered a bottle of beer from Adelaida Borinaga.

All went well until Cpl. de los Santos suddenly left his place at the counter, went to the table occupied by the accused-appellants and their companions, and with his .38 caliber pistol, shot Wally Punzalan twice at close range felling the latter. In the ensuing rapid succession of action Ramon Jumawan hit Cpl. de los Santos on the head with a chair and gained possession of the policeman's gun and used it in shooting the policeman in turn three or four times.”

The Court held as follows:

“It appears that all the elements of self-defense and defense of a stranger are present under the facts and circumstances of the case at bar.

It was shown that the policeman was the aggressor. The assault was sudden and totally unexpected so that he succeeded in pumping two bullets into the chest and stomach of his unsuspecting victim Wally Punzalan, giving the latter no chance or time to defend himself or evade the aggression.

After gunning down Wally Punzalan, the policeman's aggression did not stop there. While the policeman stood there menacingly with his gun, the peril to the life of Wally Punzalan and all his companions continued. Faced with this real and imminent danger to their own life, and in obedience to the dictates of the instinct of self-preservation, appellants together with Ramon Jumawan, mauled the policeman to immobilize him. And when the latter was disarmed, Jumawan picked the gun and shot him four times. Although this Court cannot in all reason condone the shooting of a person who is already helpless and lying prostrate on the floor, so that Jumawan who is at large must be held to account for his acts, as to the appellants, this Court is mindful of the following discourse it made on the subject, thus: (Emphasis supplied.)

x x x

Except for the shooting of the victim by Jumawan, We find that the appellants employed reasonable means to repel the aggression of the policeman. (Emphasis supplied.)

The final requisite for complete self-defense, lack of sufficient provocation of the person defending himself, is also present. The evidence shows that Wally Punzalan and his companions had not done anything to invite the ire of the policeman and provoke the latter's aggression. It also appears that the companions of the slain Wally Punzalan were not motivated by revenge, resentment or other evil motive in defending themselves and Wally Punzalan.”

There appears to be some inconsistency with the ruling of the Court in the foregoing case when it took exception to the shooting of the deceased by Jumawan. The Court also cited in its ruling in the case of People of the Phil. vs. Danilo Punzalan (G.R. No. L-54562, August 6, 1987) the rationale for its decision the cases of Eslabon vs. People of the Phil., et al. (G.R. No. L-66202, February 24, 1984), United States vs. Mariano Singson (G.R. No. 15697, September 6, 1920, 41 Phil. 53) and People of the Philippines vs. Zambarrano (54 O.G. 8455). The court has consistently upheld that reasonableness of means is not measured by formal reason or mathematical calculation but depends more on the instinct of self-preservation.

However, the court’s view on the liability of Jumawan in the case of Punzalan may be explained by the fact that Jumawan never submitted to the jurisdiction of the court. If he had, he could have been credited with the special mitigating circumstance of incomplete defense and passion and obfuscation and voluntary surrender as in the case of People vs. Narvaez (121 SCRA 389).

To the author’s mind, though, the Court rightly exercised prudence in not absolving Jumawan together with the others as the former never appeared in court to present his own defense. The Court correctly applied the rule that the one claiming self-defense or defense of a stranger has the burden of proving his innocence. The said rule is clearly intended as a safeguard against unjustified taking of human life.

A clear, real, direct and positive aggression justified the use of a gun, the only means of defense against the hostile assailants armed with a gun and a knife who placed themselves on either side of the accused who was unarmed. The accused was justified in using the gun that he successfully wrested from one of the deceased. If the accused had desisted from using the gun, perhaps he would have been killed himself. Certainly, he was not duty-bound to expose himself to such a risk. While the attack continued and the danger to his person or life subsisted, he had a perfect and indisputable right to repel the attack if necessary by wounding his adversaries or even disabling them completely in order that they may not be able to continue with their assault. (Castañares vs. Court of Appeals, 92 SCRA 567)

In Lacson vs. Court of Appeals (L-46485, November 21, 1979) the use of a gun as the only available means to repel the aggression and defend the appellant and his wife was deemed by the court as reasonable. The court considered that the injured was a person of bad character in the locality, that he was drunk at the time he was shot, that he had stoned the house of the appellant on a previous occasion, that he had intruded into the house of the appellant and brandished a “kris-like” knife in front of the appellant and his wife. The Court explained, thus:

“That there is reasonable necessity of the means employed by herein appellant to prevent or repel the unlawful aggression cannot seriously be disputed. Reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense. What the law requires is a rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct, more than the reason, that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such injury.”

Although a knife is more dangerous than a club, its use is reasonable if there is no other available means of defense available to the accused and he had no opportunity to choose to rationally choose another less deadly weapon. (People vs. Padua, [CA] 40 O.G. 998) The appropriateness of the means of defense to the means of attack does not depend upon the harm done but rests upon the imminent danger of such injury. (People vs. Pineda, [CA] 43 O.G. 3110, citing People vs. Paras, 9 Phil. 367)

The requirement of reasonable necessity is met when the weapon used in self-defense is of the same or similar nature as that employed by the one attacking him. Thus, a .38 caliber was considered a reasonable weapon in repelling an attack made by the deceased with a .45 caliber pistol. (People vs. Perez, [CA] G.R. No. 25698-R, May 12, 1961)

A .22 caliber pistol may be considered as a weapon of defense although not of offense and may be considered as reasonable in repelling an aggression with a piece of bolo or a bamboo-like substance. Reasonableness of means does not depend upon mathematical calculation but more upon the surrounding circumstances, the state of mind of the accused and the nature of the weapon or weapons at hand. (People vs. Orencia, [CA] G.R. No. 01269-CR, February 22, 1962) The test of rationality is not what a man should do under normal circumstances and with time for cool reflection present, but how an individual in such dire situation, with grim prospect of the loss of life, would react. (People vs. Artuz, 71 SCRA 116)

Although the accused inflicted other minor physical injuries on the deceased after he had stabbed him with two mortal wounds when the elements of complete self-defense were still present, such physical injuries will not affect the benefit of said complete self-defense in the absence of proof that the said relatively small wounds contributed to or hastened the death of the deceased. (People vs. Del Pilar, [CA] 44 O.G. 496; People vs. Contawe, [CA] 58 O.G. 1738) Self-defense would be incomplete if the fatal wound was inflicted when there was no longer any danger to the accused. (People vs. Leon Didel, [CA] G.R. No. 1646)

3. Lack of sufficient provocation by the person making the defense

This element requires lack of sufficient and unlawful provocation by the person making the defense. Even if the provocation is sufficient given by the accused is sufficient but it does not precede the act of defense, it will not disqualify him from claiming self-defense.

In the case of Castañares vs. Court of Appeals (92 SCRA 567) the Court answered the question of whether the appellant gave sufficient provocation to the deceased in the negative. The deceased was the one who was insulted by the appellant’s comment and he was also the one who struck the first blow. The facts also show that their first altercation had already ended when the deceased returned with his brother to attack the appellant. Thus:

“That leaves us to the last question of whether of not the accused did not give sufficient provocation for the unlawful aggression. The respondent court maintained, thus, “(T)here was a fist fight between the appellant and the victim Felizardo in which the appellant bested Felizardo by boxing him at the mouth. This provocation, to our mind, is sufficient to stir Felizardo into returning to even up the score.” This stance is obviously erroneous. The defense alone presented evidence as to the circumstances leading to the fist fight between the accused and Felizardo. It remains, therefore, unrebutted, and thus from the facts narrated by the witnesses for the defense, Felizardo apparently insulted by the accused’s refusal to give him fish immediately and that he should wait until the fish falling from the “canastro” be all gathered, as manifested in his following remarks, “(A)nong palagay mo sa akin, aso?,” he struck the first blow which was however evaded by the accused who in turn successfully landed a blow on him. Even at this stage it was Felizardo who initiated the fight and if he was bested, it was preposterous to say that he had a right to return and “even up the score” because such a pronouncement erroneously sanctions aggression in return for an insult brought by Felizardo upon himself alone. Moreover, even if we were to disregard the testimonies of the defense witnesses that it was Felizardo who struck the first blow, we would still be convinced that that would be the case because in the nature of things, the person who was deeply offended by the insult was the one who believed that he had a right to demand explanation of the perpetrator of that insult, and the one who also struck the first blow when he was not satisfied with the explanation offered.

To our mind, the first altercation between Felizardo and the accused ended when the former left but not without first uttering a threat “May araw ka rin.” This showed that Felizardo had no intention to continue the fight but would wait for a more opportune time. In fact, Felizardo returned to the group with whom he was previously conversing with. It was only upon the order of his older brother, who, it must be noted, arrived only minutes later, that both returned to where the accused was. In other words, we have reason to believe that if Manuel had not arrived right there and then, Felizardo would not have returned alone to make good his threat. Therefore, there were two fights that took place: one, the altercation between the accused and Felizardo, and second, the assault on the accused by both Felizardo and Manuel. Because of the circumstances above discussed, there was no continuity in the fights despite the lapse of only ten minutes so that even if we were to admit, which we do not, that the accused gave sufficient provocation, such provocation was not proximate or immediate to the aggression and, therefore, should still be disregarded.”

The accused cannot claim self-defense when the provocation that he gave is sufficient and immediately preceded the act. Moreover, in order that provocation may be considered as sufficient it must be proportionate to the damage caused by the act and adequate to stir one to its commission. (People vs. Alconga, 78 Phil. 366)

Concerning the requisite of the lack of sufficient provocation on the part of the appellant, the Court in People vs. Encomienda (G.R. No. L-26750, August 18, 1972) ruled, thus:

“There certainly was lack of sufficient provocation on the part of appellant. On the contrary, he was the one provoked by the deceased. He was in his own yard cutting wood when the deceased arrived ordering him to vacate the land he was then tilling, which was his livelihood. Ejecting him from the land he was farming and which his father farmed before him, was, to this simple farmer, like depriving him of his life. Yet, with all that provocation, appellant merely told the deceased that the latter had no right to eject him from the land because he was also a tenant like him in the hacienda. Certainly, this retort was no justification for the victim to draw his gun.”

B. Defense of property rights and honor

In People vs. Narvaez (L-33466-67, April 30, 1983, 121 SCRA 389) the Court held that the act of the victim in ordering and actually fencing off the house and rice mill of the accused from the highway constitutes unlawful aggression on his property rights. But shooting the victims and killing them is disproportionate to the attack and unreasonable. The court credited him with the special mitigating circumstance of incomplete defense and of voluntary surrender and passion and obfuscation.

A person who has been libeled may be justified in hitting back with another libel. Unlike in physical assault where retaliation is unlawful after the attack has ceased, in libel against a person’s good name, once the aspersion is cast, it sting clings. Thus, the person defamed may avail himself of all necessary means to shake it off. (People vs Chua Chiong, [CA] 51 O.G. 1932)

C. Defense of relatives and strangers

The relatives who may justifiably be defended under paragraph 2 include those by affinity but limited to parents-in-law, son-in-law, daughter-in-law, and brother-in-law or sister-in-law. Relatives by consanguinity include only those within the fourth civil degree, namely, brothers or sisters, uncles and aunts, nephews and nieces, and first cousins. All other relatives may be covered by legitimate defense of strangers (paragraph 4).

The first and second requisites of self-defense apply to defense of relatives and strangers. With respect to the third requisite, in defense of relatives, the person making the defense must not have participated in the provocation, although the person attacked may have provoked the victim.

The right of a person to take life in self-defense or in defense of another person who bears close relationship to him is universally recognized. Common law goes further and permits human life to be taken for the protection of a companion or even a stranger. The rule is that what one may do in his own defense, another may do for him. (U.S. vs. Subing-subing, 31 Phil. 376)

In U.S. vs. Esmedia, et al. (17 Phil, 260) the son was held by the Court to have acted in legitimate defense of a relative in killing the victim when he arrived on the scene when his father was down on the ground with the victim attacking him. The son mistook the victim to be the aggressor, although his father was the real aggressor.

In People vs. Valdez (58 Phil. 31) the Court held a person who wounded the husband, who was attacking his wife, in the course of struggling for the possession of a bolo as acting in defense of a stranger.

In defense of strangers, it is not enough that the person making the defense must not have participated in the provocation; his inducement must not be revenge, resentment or any other evil motive.

D. State of necessity

In paragraph 4 the person causing injury or damage is justified because he acted while in a state of necessity in order to prevent a greater evil. The person will not be liable even if the evil that he sought to avoid turned out to be less than the injury or damage he caused as long as he acted in good faith. In addition, he must not have participated in bringing about the state of necessity.

The elements of state of necessity are: (a) the evil sought to be avoided actually exists; (b) the injury feared is greater than that done to avoid it; and (c) there is no other practical and less harmful means of preventing it.

State of necessity may justify a therapeutic abortion to save the life of the mother or when the person causing the injury or damage deliberately swerved his vehicle to avoid an accident but in the process killed some people because the instinct of self-preservation is always more compelling. (Regalado, 2000)

Likewise, a captain of a ship who jettisons cargo to prevent a vessel from sinking is not liable not only because of a state of necessity but also because it is so provided in the Code of Commerce. (Gregorio, 1997)

Thus, in the case of People vs. Hernandez, et al. (CA 55 O.G. 8465) the prospective bride was absolved from the crime of slander by deed for refusing to marry her fiance because in her mind the prospect of a loveless marriage was a greater evil.

E. Compliance with duty or exercise of a right

Paragraph 5 may be another basis to justify the killing by a policeman of an armed offender who defiantly resisted a lawful arrest. Thus, in the case of Frias, Jr. vs. People (G.R. No. 65762, June 23, 1984) the accused was acquitted on the ground that he acted in the fulfillment of a duty and in the legitimate exercise of his authority. The Court considered the total absence of evidence of motive for the policeman to shoot the deceased as shown by the testimony that that early morning he was wearing only a brief and sleeveless shirt corroborating his testimony that he was merely awakened by gunfire.

Likewise, a policeman who was attacked by an escaped prisoner and who fired at the escaping prisoner, hit him and killed him is exempt from criminal liability because the prisoner was under obligation to surrender and had no right to assault the policeman. (People vs. Delima, 46 Phil. 768 and People vs. Bisa, [CA] 51 O.G. 4091)

The killing by a policeman of an escaping prisoner is presumed to be committed in the performance of his duties. (Valcorza vs. People, 30 SCRA 143)

A guard will not be criminally liable for firing at an escaping prisoner who disregarded his warning and there is no other remedy except to fire at the prisoner to prevent him from escaping. (U.S. vs. Magno, et al., 8 Phil. 314) But if the escaping prisoner was fired upon and hit on the thigh by the guard at a distance of four meters, there was no absolute necessity of firing again at him as he could then be easily captured. (People vs. Tengyao, L-14675, November 29, 1961)

After firing the first shot, a policeman is not expected to pause for long in order to check whether the deceased was already incapable of stabbing the hold-up victim. To his mind, the life of the hold-up victim was in danger. (People vs. Pat. Paterno de la Cruz, [CA] January 21, 1978)

A person claiming fulfillment of a duty or exercise of right or office as a defense must appear not only that he acted in the performance of his duty but that the injury caused or offense committed was the necessary consequence of the performance of such duty. (People vs. Pabillore, [CA] G.R. No. 00706 CR, April 15, 1964)

F.Obedience to superior order

The elements of obedience to superior order are: (a) an order has been issued by a superior; (b) the order is for a legal purpose; and (c) the means used to carry out said order is lawful.

Paragraph 6 presupposes a lawful order, although if the subordinate complied with an unlawful order under a mistake of fact, he should also not incur criminal liability. Thus, in the case of People vs. Beronilla, et al. (96 Phil. 566) a soldier was given the benefit of fact for complying with an illegal order since he acted in good faith upon the direct orders of his superiors and without fault or negligence on his part.

In the said case of People vs. Beronilla, et al. (96 Phil. 566), the trial and execution of the deceased for treason by the military government after the Japanese occupation and during the process of liberation was made pursuant to a direct order coming from a military superior. There arose a question concerning the legality of the order on the ground of irregularity considering that the accused supposedly received a conflicting message from a certain authority to suspend the execution of the deceased although there was no evidence that the accused received the message. On the contrary, the facts of the case show that the accused acted in good faith and was even commended in writing by his direct superior after the execution of the deceased for fair and impartial handling of the case.

Even if the order is illegal but it is patently legal and the subordinate does not know of its illegality, the subordinate will not be liable. (Nassif vs. People, 78 Phil. 67) This is due to mistake of fact committed in good faith. Further, even if the order is illegal, the subordinate may invoke the exempting circumstances of compulsion of irresistible force (Art. 12, par. 5, Revised Penal Code) or impulse of an uncontrollable fear of an equal or greater injury (Art. 12, par. 6, Revised Penal Code). (Gregorio, 1997)

Both the person giving the order and the person executing the order must be acting within the limitations set by law. (People vs. Wilson et al., 52 Phil, 919)

However, the accused cannot be covered by this justifying circumstance if the order was clearly unlawful such as torturing the victim (People vs. Margen, et al., 85 Phil. 839) and falsification (People vs. Barroga, 54 Phil. 247).

VI. Conclusion

There are several rules that apply in determining whether killing may qualify under the justifying circumstance of legitimate defense or other circumstances, which exempt from criminal liability, or the exempting circumstances under the Revised Penal Code. These principles are summarized in the requisites prescribed under Arts. 11 of the Revised Penal Code.

Ignorance or mistake and fact are also included as a justifying circumstance considering the lack of criminal intent, while compulsion of irresistible force and impulse of an uncontrollable fear of an equal or greater injury are considered as exempting circumstances under Art. 12 of the Revised Penal Code.

In addition, the claim of lawful defense must be corroborated by independent and competent evidence by the accused. Further, the determination of whether a given situation will exempt one from criminal liability is qualified by circumstances of persons, time and place as they appear to person making the defense.

In conclusion, it would seem that the Pope’s Encylical applies seemingly broad principles in defense of human life while the Revised Penal Code adopts specific standards in determining whether a given situation may justify self-defense or defense of a relative or stranger.

However, the difference may be more apparent than real. The Encyclical exhorts penal justice to be more in line with human dignity. It recommends a solution that will to the extent possible reconcile defending public order and ensuring people’s safety with offering the offender an incentive, help change his or her behavior and be rehabilitated. Thus, If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means. In the final analysis, the commandment “You shall not kill” has absolute value when it refers to the protection of innocent persons against criminals and their unjust aggressors.

The Revised Penal Code, on the other hand, sets forth the requisites of lawful self-defense and defense of a relative: unlawful aggression, lack of sufficient provocation on the part of the person making the defense and reasonable necessity of the means employed to repel the aggression. In defense of strangers, and additional requisite is that the person making the defense must not be motivated by hatred, revenge or some other evil motive.

It becomes apparent that the Revised Penal Code merely reconciles and implements the already immutable moral principles of defense of human life, especially of innocent persons. Therefore, the legal principles that apply to legitimate defense under the Revised Penal Code are not inconsistent but instead are in harmony with the established moral standards of respect for human dignity and persons.

VII. Bibliography

A. Reference books

Regalado, F.D. (2000), Criminal Law Conspectus. Manila: National.

Gregorio, A.L. and Gregorio, C. (1997), Fundamentals of Criminal Law Review, 9th ed. Manila: Rex.

B. List of cited cases

Castañares vs. Court of Appeals, 92 SCRA 567
Eslabon vs. People of the Phil., et al., G.R. No. L-66202, February 24, 1984
Frias, Jr. vs. People, G.R. No. 65762, June 23, 1984
Lacson vs. Court of Appeals, L-46485, November 21, 1979
Nassif vs. People, 78 Phil. 67
People vs. Aguitan, L-32072, July 25, 1983, 123 SCRA 501
People vs. Ah Chong, G.R. No. 5272, March 19, 1910
People vs. Alconga, 78 Phil. 366
People vs. Artuz, 71 SCRA 116
People vs. Banzuela, 31 Phil. 564
People vs. Barroga, 54 Phil. 247
People vs. Beronilla, et al., 96 Phil. 566
People vs. Bisa, [CA] 51 O.G. 4091
People vs. Bolholst-Caballero, 61 SCRA 180
People vs Chua Chiong, [CA] 51 O.G. 1932
People vs. Contawe, [CA] 58 O.G. 1738
People vs. George R. Decena, G.R. No. 107874, August 4, 1994
People vs. Del Pilar, [CA] 44 O.G. 496
People vs. Delima, 46 Phil. 768
People vs. Encomienda, G.R. No. L-26750, August 18, 1972
People v. Alfredo Gallego, et al., G.R. No. 127489, July 11, 2003
People vs. Leon Didel, [CA] G.R. No. 1646
People vs. Hernandez, et al., CA 55 O.G. 8465
People vs. Gregorio Lara, G.R. No. 24014, October 16, 1925, 48 Phil. 153
People vs. Macariola, L-40757, January 24, 1983, 120 SCRA 92
People vs. Margen, et al., 85 Phil. 839
People vs. Mendoza, [CA] G.R. No. 03962
People vs. Narvaez, L-33466-67, April 30, 1983, 121 SCRA 389
People vs. Loreto Noay, G.R. No. 122102, September 25, 1998
People vs. Orencia, [CA] G.R. No. 01269-CR, February 22, 1962
People vs. Pabillore, [CA] G.R. No. 00706 CR, April 15, 1964
People vs. Padua, [CA] 40 O.G. 998
People vs. Paras, 9 Phil. 367
People vs. Pat. Paterno de la Cruz, [CA] January 21, 1978
People vs. Perez, [CA] G.R. No. 25698-R, May 12, 1961
People vs. Pineda, [CA] 43 O.G. 3110
People of the Phil. vs. Danilo Punzalan, G.R. No. L-54562, August 6, 1987
People vs. Tengyao, L-14675, November 29, 1961
People vs. Valdez, 58 Phil. 31
People vs. Valencia, 133 SCRA 82
People vs. Wilson et al., 52 Phil, 919
People vs. Yunan, 61 Phil. 786 (1935)
People vs. Zambarrano, 54 O.G. 8455
U.S. vs. Esmedia, et al., 17 Phil, 260
U.S. vs. Ferrer, 1 Phil. 56
U.S. vs. Magno, et al., 8 Phil. 314
U.S. vs. Mariano Singson, G.R. No. 15697, September 6, 1920, 41 Phil. 53
U.S. vs. Subing-subing, 31 Phil. 376
Valcorza vs. People, 30 SCRA 143