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TRIAL MEMORANDUM

MATERIAL FACTS On October 19, 1996, at about 12:35 a.m., Regimen and Baxinela were walking along Toting Reyes Street in Kalibo, Aklan when they were approached by a civilian named Romy Manuba who informed them of a drunken person drawing a gun and creating trouble inside the Playboy Disco Pub located on the second floor of the Kingsmen building. They immediately proceeded to the reported place and, they saw someone with a handgun visibly tucked at the back of his waist about 4 meters away. Regimen then instructed Baxinela to take a closer look at this person while he makes a call to the Kalibo police station. As Regimen was about to stand, the armed man started to walk towards the entrance. When he passed their table, Baxinela stood up, introduced himself as a policeman and asked why he had a gun. The man did not respond and, instead, suddenly drew out his gun. Baxinela then drew his sidearm and was able to fire first, hitting the man on his upper left arm. When the man fell down, Baxinela took his gun and wallet and handed them over to Regimen. Regimen then stated that he enlisted the services of the pubs security guard to bring the wounded man to the hospital while he and Baxinela proceeded to the Kalibo Police Station and reported the matter to SPO4 Salvador Advincula. They also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col. Bianson.

ISSUE Whether or not Baxinela can claim the justifying circumstance of self-defense? RULE The three requisites to prove the claim of self-defense as stated in paragraph 1 of Article 11 of the Revised Penal Code: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repeal it; (3) lack of sufficient provocation on the part of the person defending himself.

APPLICATION The law on self-defense embodied in any penal system in the civilized world finds justification in mans natural instinct to protect, repel, and save his person or rights from impending peril; it is based on that impulse of self-preservation born to man and part of his nature as a human being.1 The accused Eduardo Baxinela pleaded self-defense. It is a well-established principle that where the accused has admitted that he is the author of the death of the deceased, it is incumbent upon the accused, to avoid criminal liability, to prove this justifying circumstance claimed by himself self-defense to the satisfaction of the court. To do so he must rely on the strength of his own evidence and not on the weakness of the prosecution, for even if that were weak it cannot be disbelieved after the accused himself has admitted the killing.2 Otherwise stated, the burden of proof is shifted from the prosecution to the accused and it is the duty of the latter to establish self-defense by evidence clear and convincing.3 Thus, self-defense, being an affirmative allegation, it is incumbent upon the accused to prove clearly and sufficiently its elements, otherwise the conviction of the accused is imperative.4 There are three requisites to prove the claim of self-defense as stated in paragraph 1 of Article 11 of the Revised Penal Code, namely: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repeal it; and (3) lack of sufficient provocation on the part of the person defending himself.5 The first requisite of self-defense is that there be unlawful aggression on the part of the person injured or killed by the accused. Unlawful aggression is a statutory and doctrinal requirement in the justifying circumstance of self-defense. There can be no selfdefense, complete or incomplete, unless the victim has committed an unlawful aggression against the person defending himself.6 For the right of defense to exist, it is necessary that we be assaulted or that we be attacked, or at least that we be threatened with an attack in an immediate and imminent manner, as, for example, brandishing a knife with which to stab us or pointing a gun to

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Castaares vs. Court of Appeals, Nos. L-41269-70, August 6, 1979, 92 SCRA 567, 571-572 People v. Ansoyon, 75 Phil. 772, 1946; People v. Silang Cruz, 53 Phil. 635, 1929 3 People v. Valencia, 133 SCRA 82 [1984]; People v. Urbistondo, et al., 132 SCRA 268, 1984; People v. Pasco, Jr., 137 SCRA 137, 1985 4 People v. Plandez, 132 SCRA 69, 1984 5 People vs. Uribe, G.R. Nos. 76493-94, Feb. 26, 1990, 182 SCRA 624, 630-631 6 People vs. Sazon, G.R. No. 89684, Sept. 18, 1990, 189 SCRA 700, 704; People vs Bayocot, G.R. No. 55285, June 28, 1989, 174 SCRA 285, 291

discharge against us.7 Thus, unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude.8 Hence, when Regimen was about to stand as he instructed Baxinela to take a closer look at the deceased while he makes a call to the Kalibo police station, the armed man started to walk towards the entrance. The man did not respond to Baxinelas question and, instead, suddenly drew out his gun. Baxinela then drew his sidearm and was able to fire first, hitting the man on his upper left arm. Unlawful aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind.9 There was unlawful aggression when the peril to ones life, limb or right is either actual or imminent. There must be actual physical force or actual use of weapon.10 In case of threat, the same must be offensive and positively strong, showing the wrongful intent to cause an injury.11 The deceased nevertheless suddenly drew out his gun without responding to Baxinela, a clear manifestation of a threatened assault or a threat to inflict real injury. It was also expressed in People vs. Javier12 that when intent to attack is manifest, picking up a weapon is sufficient unlawful aggression. Thus, the picking of the deceased of a weapon which was then preceded by circumstances indicating his intention to use it in attacking Baxinela, such act is considered unlawful aggression. Moreover, an aggression that is expected is still real, provided it is imminent. Baxinela instinctively shot the deceased while still drawing out his gun, in this case, it is not necessary to wait until the blow is about to be discharged, because in order that the assault may be prevented it is not necessary that it has been actually perpetrated.13 The ancient common law rule in homicide denominated retreat to the wall has now given way to a new rule. This doctrine makes it the duty of a person assailed to retreat as far as he can before he is justified in meeting force with force. This principle has now given way in the United States to the "stand ground when in the right" rule. The Supreme Court of the United States carefully examined the application of the two doctrines in Beard vs. United States.14 In the opinion handed down by Mr. Justice

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1 Viada, 5 edicion, 173, p. 3275 People vs. Pasco, Jr., G.R. No. L-45715, June 24, 1985, 137 SCRA 137 9 People vs. Alconga, 78 Phil. 366 10 People vs. Crisostomo, G.R. No. L-38180, Oct. 23, 1981, 108 SCRA 288, 298 11 U.S. vs. Guysayco, 13 Phil. 292, 295 12 46 O.G. No. 7, July, 1950 13 U.S. vs. Batungbacal, 37 Phil. 382 14 158 U. S., 550, 1894

Harlan reference is made approvingly to the decision of the Supreme Court of Ohio in Erwin vs. State15 in which it is said:
It is true that all authorities agree that the taking of life in defense of one's person cannot be either justified or excused, except on the ground of necessity; and that such necessity must be imminent at the time; and they also agree that no man can avail himself of such necessity if he brings it upon himself. The question, then, is simply this: Does the law hold a man who is violently and feloniously assaulted responsible for having brought such necessity upon himself, on the sole ground that he failed to fly from his assailant when he might safely have done so? The law, out of tenderness for human life and the frailties of human nature, will not permit the taking of it to repel a mere trespass, or even to save life where the assault is provoked; but a true man, who is without fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.

Justice Harlan16 then concludes his opinion with these words:


The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoked the assault and had at the time reasonable grounds to believe and in good faith believed, that the deceased intended to take his life or do him great bodily harm, he was not obliged to retreat, nor consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury.

The same Court reexamined and reaffirmed the doctrine in Rowe vs. United States.17
We can do no better than to paraphrase the language of these well considered opinions for our present purpose. The accused did not provoke the assault. The accused was where he had a right to be. The law did not require him to retreat when his assailant was rapidly advancing upon him in a threatening manner with a deadly weapon. The accused was entitled to do whatever he had reasonable grounds to believe at the time was necessary to save his life or to protect himself from great bodily harm. The element of practicability made it impossible for him to determine during the heat of a sudden attack whether he would increase or diminish the risk to which exposed by standing his ground or stepping aside. His resistance was not disproportionate to the assault. The wound was inflicted, not on
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29 Ohio St., 186, 1876 158 U. S., 550, 1894 17 164 U. S., 546, 1896

what is usually a vital part of the body but on the arm as one would naturally strike to defend himself. Viewed from all angles, we believe this is a "proper case" for the exemption of the accused from criminal liability because of having acted in legitimate defense of his person.

So, where the accused is where he has the right to be, the law does not require him to retreat when his assailant is rapidly advancing upon him with a deadly weapon.18 The reason for the rule is that if one flees from an aggressor, he runs the risk of being attacked in the back by the aggressor. Baxinela was where he had a right to be, and he cannot be compelled to retreat upon the drawing of the deceased with a gun. The law did not require him to retreat when his assailant was rapidly advancing upon him in a threatening manner with a deadly weapon. Baxinela therefore, was entitled to do whatever reasonable grounds he had to believe at the time was necessary to save his life or to protect himself from great bodily harm. Thus, the gunshot released by Baxinela against the deceased was a natural consequence of the threatened attack, as, under all circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury. The second requisite of defense of person or rights is the reasonable necessity of the means employed to prevent or repel it. This second requisite presupposes the existence of unlawful aggression, which is either imminent or actual. The reasonableness of either or both such necessity depends on the existence of unlawful aggression and upon the nature and extent of the aggression. When the deceased passed their table by the entrance, Baxinela stood up, introduced himself as a policeman and asked why he had a gun. The man did not respond but turned to face him, drawing his gun. Baxinela immediately drew his firearm and beat him to the draw, hitting the man on his left arm. In U.S. vs. Molina,19 it was conveyed that the person attacked is not duty-bound to expose himself to be wounded or killed, and while the danger to his person or life subsists, he has a perfect and indisputable right to repel such danger by wounding his adversary and, if necessary, to disable him completely so that he may not continue the assault. Thus, in emergencies where the person or life of another is imperiled, human nature does not act upon processes of formal reason but in obedience to the instinct of selfpreservation. The reasonableness of the necessity to take a course of action and the reasonableness of the necessity of the means employed depend upon the circumstances of the case.
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U.S. vs. Domen, 37 Phil. 57 19 Phil. 227

Tested by this standard, the means employed by Baxinela in repelling the attack were, under the circumstances, both reasonable and necessary. In the case, while the deceased was drawing out his gun in a motion to attack, Baxinela immediately and instinctively shot the deceased directly on the upper left arm, a vital part of the body. That the accused did not select a lesser vital portion of the body of the deceased to hit is reasonably to be expected, for in such situation, the accused has to move fast, or in split seconds, otherwise, the aggression on his person would have continued and his life endangered.20 Thus, Baxinela just discharged his weapon at the deceased in the hope that such would save him from any further injury or death. It must also be borne in mind that the rule is that the reasonable necessity of the means employed to repel or prevent the attack depends upon the imminent danger of injury, not on the harm actually done to the accused.21 Thus, that Baxinela instantly shot the deceased upon a real sense of threat and danger upon his person; this does not necessarily imply that the means he used to repel the attack were unreasonable and excessive. The fact remains that the act of the deceased of attacking Baxinela with gun manifestly drawn out, was a very real danger to his life that the latter had to repel the best way he can. That the gunshot wounds Baxinela inflicted on the deceased proved to be fatal does not make the means he employed any less reasonable under the circumstances. The third requisite necessitates the lack of sufficient provocation on the part of the person defending himself. When the person defending himself from the attack by another gave sufficient provocation to the latter, the former is also to be blamed for having given cause for the aggression. Hence, to be entitled to the benefit of the justifying circumstance of self-defense, the one defending himself must not have given cause for the aggression b his unjust or by inciting or provoking the assailant.22 The lack of sufficient provocation on the part of Baxinela is too plain to even doubt. He, together with Regimen were approached by a civilian who informed them of a drunken person drawing a gun and creating trouble inside the Playboy Disco Pub located on the second floor of the Kingsmen building. As police officers in lawful exercise of their duties, they immediately proceeded to the reported place and, they saw someone with a handgun visibly tucked at the back of his waist about 4 meters away. As Regimen was about to stand, the armed man started to walk towards the entrance. When he passed their table, Baxinela stood up and introduced himself as a policeman and asked why he had a gun. The deceased did not respond and, instead, suddenly drew out his gun. Thus, Baxinela did not provoke the victim into attacking him. In fact, as a police officer
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People vs. Ocaa, C.A., 67 O.G. 3313 U.S. v. Paras, 9 Phil. 367, 1907 22 U.S. vs. Pascua, 28 Phil. 222

he just asked the deceased why he had a gun tucked at the back of his waist, in which the deceased responded with unlawful aggression, necessitating Baxinela to protect his life from the aggressor.

CONCLUSION The accused Baxinela can rightfully claim the justifying circumstance of self-defense. First, there was unlawful aggression on the part of the victim which was a real and imminent threat to the life of Baxinela. As the deceased started to walk towards the entrance, he did not respond to Baxinelas question and, instead, suddenly drew out his gun. The deceased nevertheless suddenly drew out his gun without responding to Baxinela, a clear manifestation of a threatened assault or a threat to inflict real injury. Furthermore, for the second requisite, Baxinelas use of his revolver to repel the aggression of the deceased was a reasonable necessity. Baxinela has a perfect and indisputable right to repel such danger by wounding his adversary and, as necessary, to disable him completely so that he may not continue the assault, it is not necessary to wait until the blow is about to be discharged, because in order that the assault may be prevented it is not necessary that it has been actually perpetrated. Thus, the gunshot released by Baxinela against the deceased was a natural consequence of the threatened attack, as, under all circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury. And in the third requisite, Baxinela did not provoke the victim into attacking him. In fact, as a police officer in lawful performance of his duty, he just asked the deceased why he had a gun tucked at the back of his waist, in which the deceased responded with unlawful aggression necessitating Baxinela to protect his life from the aggressor.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 149652

March 24, 2006 Petitioner-Appellant,

EDUARDO L. BAXINELA, vs. THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee. DECISION AZCUNA, J.:

Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide by the Regional Trial Court of Kalibo, Aklan1 (RTC) in Criminal Case No. 4877, as affirmed with modification by the Court of Appeals (CA) in CA-G.R. CR No. 23348. On February 19, 1997, an Information charging Baxinela with the crime of homicide was filed as follows:2 That on or about the 19th day of October , 1996, early in the morning, at Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, without justifiable cause and with intent to kill, did then and there wi[l]lfully, unlawfully and feloniously attack, assault and shoot one RUPERTO F. LAJO, thereby inflicting upon the latter mortal wounds, to wit: "A. EXTERNAL FINDINGS: = .56 cm entrance gunshot wound proximal third lateral aspect left arm with fracture of the left humerus. = 1 cm exit wound proximal third medial aspect left arm. = 1 cm entrance gunshot wound anterior axillary line 5th intercostals space left chest. B. INTERNAL FINDINGS = One liter of flood left thoracic cavity

= Perforated left diaphragm. = One two liters of blood in the abdominal cavity. = 2 point perforation stomach = Multiple perforation small, and large intestines and mesenteries. = (+) Retroperitonial hematoma DIAGNOSIS: Gunshot wound left of arm with fracture of the humerus, penetrating the (L) thoracic cavity perforating the diaphragm, abdomen, stomach and, intestines and retroperitoneum with slugs lodging the vertebral colum[n]. CAUSE OF DEATH: Cardiopulmonary arrest Secondary to severe bleeding Secondary to gunshot wound." as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan, which wounds directly caused the death of RUPERTO F. LAJO, as per Certificate of Death, hereto attached as Annexes "A" and "B" and forming part of this Information. That as a result of the criminal acts of the accused the heirs of the deceased suffered actual and compensatory damages in the amount of FIFTY THOUSAND PESOS (P50,000.00). CONTRARY TO LAW. On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY. 3 During pre-trial, Baxinela informed the RTC that he would be claiming the justifying circumstance of selfdefense.4 In accordance with the Rules of Criminal Procedure, the defense was the first to present evidence.5 The first witness for the defense was Insp. Joel Regimen.6 He testified that on October 19, 1996, at about 12:35 a.m., he and Baxinela were walking along Toting Reyes Street in Kalibo, Aklan when they were approached by a civilian named Romy Manuba who informed them of a drunken person drawing a gun and creating trouble inside the Playboy Disco Pub located on the second floor of the Kingsmen building. 7 They immediately proceeded to the reported place and, upon arrival, recognized a former colleague, SPO4 Legarda, who was with a companion. Legarda invited them to his table and the two obliged. Later, while seated at the table, they saw someone with a handgun visibly tucked at the back of his waist about 4 meters away. Regimen then instructed Baxinela to take a closer look at this person while he makes a call to the Kalibo police

station but before Regimen could stand up, the man with a gun started to walk towards the door. As he passed by their table, Baxinela stood up, introduced himself as a policeman and asked the man why he had a gun with him. The man did not respond and, instead, suddenly drew out his gun. Baxinela then drew his sidearm and was able to fire first, hitting the man on his upper left arm. When the man fell down, Baxinela took his gun and wallet and handed them over to Regimen. Regimen then stated that he enlisted the services of the pubs security guard to bring the wounded man to the hospital while he and Baxinela proceeded to the Kalibo Police Station and reported the matter to SPO4 Salvador Advincula. They also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col. Bianson. The second witness for the defense was Romy Manuba,8 who testified that on October 19, 1996, at around 12:30 a.m., he was on the second floor of the Kingsmen building drinking liquor. While inside, he saw a drunken man wearing a white polo shirt accosting several persons with a gun. Fearing the man with the gun, he left the place to go home. On his way home he saw Regimen and Baxinela and he reported to them what he had seen earlier. The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He testified that on October 18, 1996, at about 11:00 p.m., he was inside the Superstar Disco Pub drinking beer with a companion named Toto Dalida. At about 12:40 a.m., Legarda saw Regimen and Baxinela enter the pub and he invited them over to his table. Later, as they were seating on the table, he noticed Regimen whisper something to Baxinela and, at the same time, pointing to a man with a handgun visibly tucked at the back of his waist. He then observed the armed person heading for the door. But as he passed by their table Baxinela stood up, approached the man from behind and said "Why do you have a gun. I am a policeman." The man did not reply and, instead, turned around and drew his gun. As the man was turning, Baxinela also drew his gun and was able to fire first, hitting the man on his left arm. After the man fell on the floor, Baxinela grabbed the other mans firearm and handed it over to Regimen. Regimen then requested one of the security guards to transport the wounded man to the hospital. Regimen and Baxinela then proceeded to the Kalibo Police Station while Legarda and Dalida went home. Baxinela took the witness stand as the last witness for the defense. 10 He testified that he and Regimen were walking along Toting Reyes Street, looking for a tricycle to take them home, when they were met by Manuba. Manuba reported to them that there was an armed person, drunk inside the Superstar Disco Pub and creating trouble. They then proceeded to the pub to verify the report. Once there, they saw Legarda occupying a table near the entrance with a companion named Toto Dalida. Legarda invited them to sit at his table. As they were sitting down, Regimen whispered to him that there was a man with a gun tucked at the back of his waist and told him to watch that person while he tries to look for a telephone to call the Kalibo Police Station. As Regimen was about to stand, the armed man started to walk towards the entrance. When he passed their table, Baxinela stood up, introduced himself as a policeman and asked why he had a gun. The man did not respond but turned to face Baxinela, drawing his gun. Baxinela

immediately drew his firearm and beat him to the draw, hitting the man on his left arm. When the man fell to the floor, Baxinela picked up the mans gun and handed it over to Regimen. Baxinela also took his wallet for identification. Regimen then told one of the security guards to bring the wounded man to the hospital. Thereafter, Baxinela and Regimen went to the Kalibo Police Station to report the incident and turned over the wallet. Next, they proceeded to Camp Pastor Martelino and also reported the incident to Col. Bianson. To rebut the claim of self-defense, the prosecution presented as its first witness, Abelardo Alvarez.11 Alvarez was a security guard assigned to the Kingsmen building during the incident in question. He testified that he was already acquainted with Baxinela and that he saw him, together with Legarda and Regimen, already in the Superstar Disco Pub as early as 11:00 p.m. of October 18, 1996 drinking. At around 12:00 a.m. to 12:30 a.m. there was a minor altercation between the deceased Sgt. Lajo and another customer at the pub but eventually the two were able to patch things up. Lajo was then on his way out when Baxinela followed Lajo with a gun already drawn out. Then, from behind, Baxinela held Lajos left arm and said "Ano ka hay? Mam-an may baril ka?"12 He then heard Lajo respond "I am a MIG, Pare" after that Alvarez heard an explosion coming from Baxinelas gun. Baxinela then got a gun from Lajos waist and handed it over to Regimen. Afterwards Baxinela held both of Lajos arms, who was still standing, and pushed him against the wall and repeated his question. Lajo answered "Why did you shoot me? I am also a military." At this point Lajo got out his wallet and gave it to Baxinela. Baxinela opened the wallet and looked at an ID. Afterwards Baxinela and Regimen just left and did nothing to aid Lajo. Alvarez and his fellow security guard, Rolando Gabriel, then picked up Lajo and boarded him on a tricycle. Gabriel brought him to the hospital, while Alvarez remained at his post. The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially corroborated the testimony of Alvarez on what occurred on the night in question. He testified that he noticed the presence of Lajo inside the pub at around 10:30 p.m. of October 18, 1996 while he first saw Baxinela, Regimen and Legarda there as early as 11:00 p.m. At around 12:45 a.m., he witnessed Lajo going towards the entrance of the pub where Baxinela was already standing and holding a .45 caliber pistol. Baxinela approached Lajo from behind and held his left shoulder asking "Who are you?" Lajo responded "I am MIG." Afterwards he was shot by Baxinela. Baxinela then got Lajos gun from his waist and gave it to Regimen. Thereafter, Baxinela, with both hands, pushed Lajo against the wall and again asked "What are you?" Lajo got his wallet from his back pocket and handed it over to Baxinela. After opening the wallet Baxinela and Regimen left the disco pub. Lajo, still standing, took two steps and then fell down. Gabriel and Alvarez then picked Lajo up and carried him to a tricycle which took him to the hospital. Gabriel also stated that ten minutes before the shooting incident there was another incident where Lajo accosted some customer but afterwards he saw that the two shook hands and embraced each other. The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer who entered in the police blotter the incident that occurred in Superstar Disco Pub. He

also testified on the events that occurred inside the precinct wherein the gun of Lajo accidentally fell on the table and fired. The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified as to damages.14 As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he was on the ground floor of Kingsmen building with Alvarez and Gabriel when they heard a shot ring out from the second floor.15 After receiving all of the evidence, the RTC found the version of the prosecution, that Baxinela shot Lajo as the latter was turning around and without having drawn his gun, more convincing, and rendered a decision convicting Baxinela. The RTC, however, considered in favor of Baxinela the mitigating circumstances of voluntary surrender and provocation. The dispositive portion of the decision is as follows:16 WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty beyond reasonable doubt of the crime of Homicide, and considering the mitigating circumstances of voluntary surrender and provocation, and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of 4 years of prision correccional medium as minimum, to 8 years and 1 day of prision mayor medium as maximum. The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for the death of Sgt. Ruperto F. Lajo; b) then sum of P81,000.00 as actual and compensatory damages; and c) the sum of P30,000.00 as moral damages; plus costs of suit. SO ORDERED. On appeal, the CA modified Baxinelas conviction by disallowing the mitigating circumstance of sufficient provocation. Accordingly, the dispositive portion of the appellate courts decision reads as follows:17 IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the Appellant guilty beyond reasonable doubt of the crime charged is AFFIRMED, with the MODIFICATION, that the Appellant is hereby meted an indeterminate penalty of from EIGHT (8) YEARS and ONE (1) DAY OF Prision Mayor, as Minimum, to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS of Reclusion Temporal, as Maximum. SO ORDERED. Baxinela filed the present petition for review on certiorari citing the following grounds:

A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN GIVING CREDENCE TO THE VERSION OF THE PROSECUTION. B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING CIRCUMSTANCES OF SELF DEFENSE OR IN THE ALTERNATIVE THE LAWFUL PERFORMANCE OF OFFICIAL DUTY UNDER ARTICLE 11 PARAGRAPHS 1 AND 5, RESPECTIVELY, OF THE REVISED PENAL CODE. C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED. D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT CONSIDERING THE QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR OF THE ACCUSED. Resolution of the petition will entail an initial determination of which version of the incident will be accepted. The defense alleges that Baxinela proceeded to the Superstar Disco Pub in response to the information given by Manuba that there was an armed drunken man accosting several people inside the pub. Once they arrived, they saw Lajo with a handgun visibly tucked behind his waist. When Baxinela introduced himself as a policeman and asked why he had a handgun, Lajo suddenly drew on him prompting Baxinela to pull out his gun and fire upon Lajo, critically wounding him. Thereafter, the defense claims that Regimen ordered the security guards to bring Lajo to the hospital while they proceed to the police station to report the incident. The prosecution, on the other hand, contends that Baxinela was already in the pub drinking with Regimen and Legarda for more than a couple of hours prior to the shooting incident. After witnessing an altercation between Lajo and another customer, Baxinela decided to confront Lajo on why he had a gun with him. Baxinela approached Lajo from behind and held the latter on the left shoulder with one hand while holding on to his .45 caliber service firearm with the other. As Lajo was turning around, to see who was confronting him, Baxinela shot him. Baxinela then got Lajos wallet and fled the scene with Regimen. As mentioned, the RTC and CA accepted the prosecutions version. The Court finds no reason to disturb such findings. Factual findings of the trial court, when adopted and confirmed by the CA, are final and conclusive unless circumstances are present that would show that the lower courts have overlooked, misunderstood or misconstrued cogent facts that may alter the outcome of the case.18 It does not appear that the conclusions that led to the conviction of Baxinela were arbitrarily reached by the lower courts and Baxinela has failed to point out any relevant circumstance that would convince the Court that a re-examination of the facts is warranted. On the contrary, Baxinelas version is challenged by his own contradicting testimony and other documentary evidence. Early in his testimony, Baxinela maintained that Lajo had already pulled his handgun and was aiming at him when he fired:

Q. What else did you do after identifying yourself as a policeman and ask[ing] why he has a gun? A. He did not respond. Q. What else happened if anything happened? A. He immediately drew his gun turning towards me and aimed it at me. 19 Subsequently, when the trial court propounded clarificatory questions, Baxinelas new assertion was that the firearm was still at the back of Lajo: Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet? A. Yes sir, already pulled out but still at the back.20 Furthermore, the follow-up investigation conducted by the police yielded a different picture of what happened. This was entered into the police records as Entry No. 3359 and it reads in part: 21 x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a firearm and when the victim SGT Ruperto Lajo PA was about to get his wallet on his back pocket for his ID, SPO2 Eduardo Baxinela anticipated that the victim was drawing his firearm on his waist prompting said policeman to shoot the victim. x x x The Court now proceeds to determine if, following the prosecutions version of what happened, Baxinela can claim the justifying circumstances of self-defense and fulfillment of a duty or lawful exercise of a right or office. The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2) lack of sufficient provocation on the part of the accused; and 3) employment of reasonable means to prevent and repel and aggression. 22 By invoking self-defense, Baxinela, in effect, admits killing Lajo, thus shifting upon him the burden of the evidence on these elements. The first requisite is an indispensable requirement of self-defense. It is a condition sine qua non, without which there can be no self-defense, whether complete or incomplete.23 On this requisite alone, Baxinelas defense fails. Unlawful aggression contemplates an actual, sudden and unexpected attack on the life and limb of a person or an imminent danger thereof, and not merely a threatening or intimidating attitude. 24 The attack must be real, or at least imminent. Mere belief by a person of an impending attack would not be sufficient. As the evidence shows, there was no imminent threat that necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the former was safely behind the victim and holding his arm. It was Lajo who was at a disadvantage. In fact, it was Baxinela who was the aggressor when he grabbed Lajos shoulder and started questioning him. And when Lajo was shot, it appears that he was just turning around to

face Baxinela and, quite possibly, reaching for his wallet. None of these acts could conceivably be deemed as unlawful aggression on the part of Lajo. Next, we consider the alternative defense of fulfillment of a duty. In order to avail of this justifying circumstance it must be shown that: 1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and 2) the injury caused or the offense committed is the necessary consequence of the due performance of duty or the lawful exercise of a right or office.25 While the first condition is present, the second is clearly lacking. Baxinelas duty was to investigate the reason why Lajo had a gun tucked behind his waist in a public place. This was what Baxinela was doing when he confronted Lajo at the entrance, but perhaps through anxiety, edginess or the desire to take no chances, Baxinela exceeded his duty by firing upon Lajo who was not at all resisting. The shooting of Lajo cannot be considered due performance of a duty if at that time Lajo posed no serious threat or harm to Baxinela or to the civilians in the pub. Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability by reason of a mistake of fact, a doctrine first enunciated in United States v. Ah Chong.26 It was held in that case that a mistake of fact will exempt a person from criminal liability so long as the alleged ignorance or mistake of fact was not due to negligence or bad faith. In examining the circumstances attendant in the present case, the Court finds that there was negligence on the part of Baxinela. Lajo, when he was shot, was simply turning around to see who was accosting him. Moreover, he identified himself saying "I am MIG." These circumstances alone would not lead a reasonable and prudent person to believe that Baxinelas life was in peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes clear negligence. But even if the Court assumes that Lajos actions were aggressive enough to appear that he was going for his gun, there were a number of procedures that could have been followed in order to avoid a confrontation and take control of the situation. Baxinela, whom the Court assumes not to be a rookie policeman, could have taken precautionary measures by simply maintaining his hold on to Lajos shoulders, keeping Lajo facing away from him, forcing Lajo to raise his hands and then take Lajos weapon. There was also Regimen who should have assisted Baxinela in disabling and disarming Lajo. The events inside the disco pub that unnecessarily cost the life of Lajo did not have to happen had Baxinela not been negligent in performing his duty as a police officer. The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a duty as a privileged mitigating circumstance. In Lacanilao v. Court of Appeals,27 it was held that if the first condition is fulfilled but the second is wanting, Article 69 of the Revised Penal Code is applicable so that the penalty lower than one or two degrees than that prescribed by law shall be imposed.28 Accordingly, the Court grants in favor of Baxinela a privileged mitigating circumstance and lower his penalty by one degree. His entitlement to the ordinary mitigating circumstance of voluntary surrender is also recognized, thereby further reducing his penalty to its minimum. The Court commiserates with our policemen who regularly thrust their lives in zones of danger in order to maintain peace and order and acknowledges the apprehensions

faced by their families whenever they go on duty. But the use of unnecessary force or wanton violence is not justified when the fulfillment of their duty as law enforcers can be effected otherwise. A "shoot first, think later" attitude can never be countenanced in a civilized society. WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of appellant Eduardo Baxinela for the crime of homicide is AFFIRMED but his sentence is reduced to an indeterminate penalty of four (4) years and two (2) months of prision correccional medium, as minimum, to eight (8) years of prision mayor minimum, as maximum. The awards of damages are affirmed. No costs. SO ORDERED. ADOLFO S. AZCUNA Associate Justice WE CONCUR: REYNATO S. PUNO Associate Justice Chairperson ANGELINA SANDOVAL-GUTIERREZ Associate Justice CANCIO C. GARCIA Associate Justice ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTEMIO V. PANGANIBAN Chief Justice RENATO C. CORONA Asscociate Justice

Footnotes
1

Branch 9. Records, p. 1. Records, p. 47. Id. at 60. Section 11, Rule 119. TSN, August 13, 1997.

The witness referred to the disco pub as "Playboy Disco Pub" but the petitioner referred to it as "Superstar Disco Pub;" p. 6 of August 13, 1997 TSN and p. 2 of petition.
8

TSN, November 6, 1997. TSN, November 27, 1997. TSN, January 7, 1998. February 12, 1998. Translated "Who are you? Why do you have a gun?" TSN, May 28, 1998. TSN, July 23, 1998. TSN, November 5, 1998. Rollo, p. 58. Penned by Justice Callejo who is now a member of this Court. Serrano v. Court of Appeals, G.R. No. 123896, June 25, 2003, 404 SCRA 639. TSN, January 7, 1998, pp. 7 and 8. TSN, January 7, 1998, p. 22.

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Records, p. 197; Exhibit "C." People v. Astudillo, G.R. No. 141518, April 29, 2003, 401 SCRA 723. People v. Gallego, G.R. No. 127489, July 11, 2003, 406 SCRA 6. Santos v. Court of Appeals, G.R. 126624, November 11, 2003, 415 SCRA 384. Angcaco v. People, G.R. 146664, February 28, 2002, 378 SCRA 297. 15 Phil. 488 (1910). G.R. No. L-34940, June 27, 1988, 162 SCRA 563.

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ARTICLE 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking.