MANABAN v. CA G.R. No. 150723 July 11, 2006 Carpio, J.: FACTS: At around 1:00 am on Oct.

11, 996, Joselito Bautistas daughter was rushed to UP Health Center. Needing money, Bautista (member of UP Police force) went to withdraw money from the ATM at BPI Kalayaan Branch where accused Ramonito Manaban was on duty. It was alleged that had taken alcoholic drinks before that. Bautista failed to withdraw and that his card was captured because he had entered a wrong pin. He then started kicking and pounding the machine. Manaban asked him the problem and suggested that Bautista return the next morning. This angered Bautista all the more and resumed pounding the machine. Manaban urged him to calm down but continued raging and striking the machine. When Manaban could no longer pacify him, he fired a warning shot. That diverted the attention of Bautista. Instead of venting his ire against the machine, he confronted Manaban. After some exchange of words, a shot rang out fatally hitting Bautista. Several police officers arrived at the crime scene where they saw Bautista lying on the ground, still breathing. They noticed that a .38 caliber pistol was tucked in Bautistas waist. Bautista was shot at the back. Manaban allegedly admitted the shooting. They brought Bautista to East Avenue Medical Center where he died. The NBI medico-legal officer testified that Bautista was shot at the back, the muzzle of the gun at about more than 24 inches away from the entry point, and that the wound incurred by him was fatal as the bullet hit the right lung and lacerated parts of the liver, stomach and the pancreas. He deduced that assailant must have been behind the victim. Manaban testified that after he fired the warning shot, Bautista allegedly raised his shirt and showed his gun which was tucked in his waist. Manaban stepped back and told Bautista not to draw his gun, otherwise he would shoot. However, Bautista allegedly kept on moving toward Manaban, who again warned Bautista not to come near him or he would be forced to shoot him. Bautista suddenly turned his back and was allegedly about to draw his gun. Fearing that he would be shot first, Manaban pulled the trigger and shot Bautista. Manaban declared that it did not occur to him to simply disable the victim for fear that Bautista would shoot him first. ISSUE: Whether there was unlawful aggression on the part of the victim, Bautista. HELD: NO. Unlawful aggression is an actual physical assault or at least a threat to attack or inflict physical injury upon a person. A mere threatening or intimidating attitude is not considered unlawful aggression, unless the threat is offensive and menacing, manifestly showing the wrongful intent to cause injury. There must be an actual, sudden, unexpected attack or imminent danger thereof, which puts the defendants life in real peril. In this case, there was no unlawful aggression on the part of the victim. First, Bautista was shot at the back as evidenced by the point of entry of the bullet. Second, when Bautista was shot, his gun was still inside a locked holster and tucked in his right waist. Third, when Bautista turned his back at Manaban, Manaban was already pointing his service firearm at Bautista. These circumstances clearly belie Manabans claim of unlawful aggression on Bautista's part. The allegation of Manaban that Bautista was about to draw his gun when he turned his back at Manaban is mere speculation. Besides, Manaban was already aiming his loaded firearm at Bautista when the latter turned his back. In that situation, it was Bautista whose life was in danger considering that Manaban, who had already fired a warning shot, was pointing his firearm at Bautista. Bautista, who was a policeman, would have realized this danger to his life and would not have attempted to draw his gun which was still inside a locked holster tucked in his waist. Furthermore, if Manaban really feared that Bautista was about to draw his gun to shoot him, Manaban could have easily disabled Bautista by shooting his arm or leg considering that Manabans firearm was already aimed at Bautista. Aggression presupposes that the person attacked must face a real threat to his life and the peril sought to be avoided is imminent and actual, not imaginary. Absent such actual or imminent peril to ones life or limb, there is nothing to repel and there is no justification for taking the life or inflicting injuries on another.