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Quiza, Justiniano, Jr. G.

2008-0290

Mamangun v. People of the Philippines GR 149152, February 2, 2007

Facts:

On July 31, 1992, at about 8:00 in the evening, a certain Liberty Contreras was heard shouting, MagnanakawMagnanakaw. Several residents

responded and thereupon chased the suspect who entered the yard of Antonio Abacan and proceeded to the rooftop of Abacans house. At about 9:00 oclock that same evening, the desk officer of the Meycauayan PNP Police Station, upon receiving a telephone call that a robberyholdup was in progress in Brgy. Calvario, immediately contacted and dispatched to the scene the crew including herein petitioner PO2 Rufino S. Mamangun. With the permission of Abacan, petitioner Mamangun, and two others went to the rooftop of the house whereat the suspect was allegedly taking refuge.

The three policemen, each armed with a drawn handgun, searched the rooftop. There, they saw a man whom they thought was the robbery suspect. At that instance, petitioner Mamangun, who was walking ahead of the group, fired his handgun once, hitting the man. The man turned out to be Gener Contreras (Contreras) who was not the robbery suspect.

Contreras died from the gunshot wound.

Issue:

Whether or not the shooting in question was done in the performance of a duty or in the lawful exercise of a right or office.

Decision:

No. The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the Revised Penal Code may be invoked only after the defense successfully proves that: (1) the accused acted in the performance of a duty; and (2) the injury inflicted or offense committed is the necessary consequence of the due performance or lawful exercise of such duty.

Concededly, the first requisite is present in this case. Petitioner, a police officer, was responding to a robbery-holdup incident. His presence at the situs of the crime was in accordance with the performance of his duty. However, proof that the shooting and ultimate death of Contreras was a necessary consequence of the due performance of his duty as a policeman is essential to exempt him from criminal liability.

To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioners firing the fatal gunshot at the victim. True, petitioner, as one of the policemen responding to a reported robbery then in progress, was performing his duty as a police officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally necessary justifying circumstance that the injury or offense committed be the necessary consequence of the due performance of such duty, there can only be incomplete justification, a privileged mitigating circumstance under Articles 13 and 69 of the Revised Penal Code.

Quiza, Justiniano, Jr. G. 2008-0290 Baxinela v. People of the Philippines G.R. No. 149652, March 24, 2006

Facts:

Petitioner SPO2 Eduardo L. Baxinela was in a pub drinking with two other policemen in as early as 11:00 p.m. of October 18, 1996. 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. While on his way out, Lajo was followed by Braxinela with a gun already drawn out. From behind, Baxinela held Lajos left arm and asked why he was carrying a gun. Thereafter an explosion coming from Baxinelas gun was heard. Lajo, still standing, took two steps and then fell down.

Issue:

Whether or not fulfilment of duty may validly be invoked by the petitioner.

Decision:

No. 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. 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.

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, 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.

Quiza, Justiniano, Jr. G. 2008-0290

Angcaco v. People of the Philippines G.R. No. 146664, February 28, 2002

Facts:

At around 4 o'clock in the morning of September 25, 1980, Noe Bergante and his brother Noel Bergante and his cousin Freddie Ganancial were awakened by the sound of gunfire while they were asleep in their house. Petitioner John Angcaco and his co-accused were serving a warrant of arrest issued on Restituto Bergante, who was wanted in connection with a robbery case. Noel informed the policemen that his father was not in the house, having gone to Puerto Princesa. One of them ordered the men in the house to come out. Noel accordingly went to the gate and later called Noe to also come out of the house. Noe and his cousin, Freddie Ganancial, did as bidden.

Once they were outside the house, Noe and Freddie were flanked by petitioner Angcaco on the right side and accused Ramon Decosto on the left side. Decosto pointed an armalite at the two and warned them not to run. Noe and Freddie joined Noel Bergante. Protacio Edep approached Freddie saying, "You are tough," and pushed him. Then, shots rang out from the armalite and short firearm of Decosto and Edep, as a result of which Freddie Ganancial turned around and dropped to the ground face down.

Issue: Whether or not the justifying circumstance of fulfilment of duty is applicable in this case.

Decision:

No. For this justifying circumstance to be appreciated, the following must be established: (1) that the offender acted in the lawful exercise of a right or a duty; and (b) that the injury or offense committed be the necessary consequence of the due performance of such right or office.

In this case, the mission of petitioner and his colleagues was to effect the arrest of Restituto Bergante. The standard procedure in making an arrest was, first, to identify themselves as police officers and to show the warrant to the arrestee and to inform him of the charge against him, and, second, to take the arrestee under custody. But, it was not shown here that the killing of Ganancial

was in furtherance of such duty. No evidence was presented by the defense to prove that Ganancial attempted to prevent petitioner and his fellow officers from arresting Restituto Bergante. There was in fact no clear evidence as to how Freddie Ganancial was shot. Indeed, as already stated, any attempt by the victim to arrest the wanted person was pointless as Restituto Bergante was not in his house. As regards the second requisite, there can be no question that the killing of Freddie Ganancial was not a necessary consequence of the arrest to be made on Restituto Bergante.