CRUZ VS. PEOPLE Oct.

8 2004
There must be intent to penetrate.
Attempted Rape
It is obvious that the fundamental difference between
attempted rape and acts of lasciviousness is the offenders
intent to lie with the female. In rape, intent to lie with the
female is indispensable, but this element is not required in
acts of lasciviousness.29 Attempted rape is committed,
therefore, when the "touching" of the vagina by the penis is
coupled with the intent to penetrate. The intent to penetrate
is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia
of the female.30 Without such showing, only the felony of
acts of lasciviousness is committed.31
Based on Article 336 of the Revised Penal Code, the felony
of acts of lasciviousness is consummated when the following
essential elements concur, namely: (a) the offender commits
any act of lasciviousness or lewdness upon another person
of either sex; and (b) the act of lasciviousness or lewdness is
committed either (i) by using force or intimidation; or (ii)
when the offended party is deprived of reason or is
otherwise unconscious; or (iii) when the offended party is
under 12 years of age.32 In that regard, lewd is defined as
obscene, lustful, indecent, lecherous; it signifies that form of
immorality that has relation to moral impurity; or that which
is carried on a wanton manner.33
The information charged that the petitioner "remove[d] her
panty and underwear and la[id] on top of said AAA
embracing and touching her vagina and breast." With such
allegation of the information being competently and
satisfactorily proven beyond a reasonable doubt, he was

guilty only of acts of lasciviousness, not attempted rape. His

embracing her and touching her vagina and breasts did not
directly manifest his intent to lie with her. The lack of
evidence showing his erectile penis being in the position to
penetrate her when he was on top of her deterred any
inference about his intent to lie with her. At most, his acts
reflected lewdness and lust for her.
JUSTIFYING CIRCUMSTANC
Phrases to remember
The unlawful aggression ceased to exist
Multiple stab wound is not indicative of self defense
Disproportionate inequality
The level of provocation must be imminent and not
threatening or intimidating action
PEOPLE vs. SEVILLANO
The imminence of that danger had already ceased the
moment appellant was able to wrestle the knife from him.
Thus, there was no longer any unlawful aggression to speak
of that would justify the need for him to kill the victim or the
former aggressor. This Court has ruled that if an accused
still persists in attacking his adversary, he can no longer
invoke the justifying circumstance of self-defense. 13 The fact
that the victim suffered many stab wounds in the body that
caused his demise, and the nature and location of the
wound also belies and negates the claim of self-defense. It
demonstrates a criminal mind resolved to end the life of the
victim.

NACNAC vs. People (police officer killed her fellow police

officer who was at that time drunk)
Unlawful aggression:
Unlawful aggression is an indispensable element of selfdefense. We explained, without unlawful aggression, selfdefense will not have a leg to stand on and this justifying
circumstance cannot and will not be appreciated, even if the
other elements are present.[10] It would presuppose an
actual, sudden and unexpected attack or imminent danger
on the life and limb of a person not a mere threatening or
intimidating attitude but most importantly, at the time the
defensive action was taken against the aggressor. x x x
There is aggression in contemplation of the law only when
the one attacked faces real and immediate threat to ones
life. The peril sought to be avoided must be imminent and
actual, not just speculative.
There is a difference between the act of drawing ones gun
and the act of pointing ones gun at a target. The former
cannot be said to be unlawful aggression on the part of the
victim. In People v. Borreros,[16] We ruled that for unlawful
aggression to be attendant, there must be a real danger to
life or personal safety. Unlawful aggression requires an
actual, sudden and unexpected attack, or imminent danger
thereof, and not merely a threatening or intimidating
attitude x x x. Here, the act of the [deceased] of allegedly
drawing a gun from his waist cannot be categorized as
unlawful aggression. Such act did not put in real peril the life
or personal safety of appellant.

The existence of unlawful aggression is the basic

requirement in a plea of self-defense.[10] In other words, no
self-defense can exist without unlawful aggression since
there is no attack that the accused will have to prevent or
repel.[11] In People v. Dolorido,[12] we held that unlawful
aggression presupposes actual, sudden, unexpected
or imminent danger not merely threatening and intimidating
action. It is present only when the one attacked faces
real and immediate threat to ones life. The unlawful
aggression may constitute an actual physical assault, or at
least a threat to inflict real imminent injury upon the
accused.[13] In case of a threat, it must be offensive and
strong, positively showing the x x x intent to cause injury.
Reasonable necessity of the means employed to prevent or
repel the victims attack

The second requisite of self-defense could not have been

present in the absence of any unlawful aggression on the
part of the victim. However, even granting that it was the
unarmed victim who first acted as the aggressor, we find
that the means employed by the appellant in repelling the
attack - the use of a firearm, the number of times he fired at
the victim and the number of gunshot wounds sustained by
the victim - were not reasonably necessary. On the contrary,
we find that the number of gunshot wounds reveals a clear
intent to kill, not merely to repel the attack of the unarmed
victim.

There must be an actual pointing of the gun

Defense of stranger is not applicable when the property of

the stranger is the one to be protected.

PEOPLE vs. GONZALES

STATE OF NECESSITY

TY vs. PEOPLE (appellant issued the check to Manila

Doctors Hospital. She issued the check involuntarily
because her mother threatened to commit suicide due to
the inhumane treatment she allegedly suffered while
confined in the hospital)
It must appear that the threat that caused the
uncontrollable fear is of such gravity and imminence that
the ordinary man would have succumbed to it. [25] It should
be based on a real, imminent or reasonable fear for ones life
or limb.[26] A mere threat of a future injury is not enough. It
should not be speculative, fanciful, or remote.[27] A person
invoking uncontrollable fear must show therefore that the
compulsion was such that it reduced him to a mere
instrument acting not only without will but against his will as
well.[28] It must be of such character as to leave no
opportunity to the accused for escape.[29]
FULFILLMENT OF A DUTY
CABANLIG vs. People
the requisites of fulfillment of duty are:
1.
The accused acted in the performance of a duty or in
the lawful exercise of a right or office;
2.
The injury caused or the offense committed be the
necessary consequence of the due performance of duty or
the lawful exercise of such right or office.[12]
A policeman in the performance of duty is justified in using
such force as is reasonably necessary to secure and detain
the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily
harm.[13] In case injury or death results from the policemans

exercise of such force, the policeman could be justified in

inflicting the injury or causing the death of the offender if
the policeman had used necessary force. Since a policemans
duty requires him to overcome the offender, the force
exerted by the policeman may therefore differ from that
which ordinarily may be offered in self-defense. [14] However,
a policeman is never justified in using unnecessary force or
in treating the offender with wanton violence, or in resorting
to dangerous means when the arrest could be affected
otherwise.[15]
Unlike in self-defense where unlawful aggression is an
element, in performance of duty, unlawful aggression from
the victim is not a requisite. In People v. Delima,[16] a
policeman was looking for a fugitive who had several days
earlier escaped from prison. When the policeman found the
fugitive, the fugitive was armed with a pointed piece of
bamboo in the shape of a lance. The policeman demanded
the surrender of the fugitive. The fugitive lunged at the
policeman with his bamboo lance. The policeman dodged
the lance and fired his revolver at the fugitive. The
policeman missed. The fugitive ran away still holding the
bamboo lance. The policeman pursued the fugitive and
again fired his revolver, hitting and killing the fugitive. The
Court acquitted the policeman on the ground that the killing
was done in the fulfillment of duty.
The fugitives unlawful aggression in People v. Delima had
already ceased when the policeman killed him. The fugitive
was running away from the policeman when he was shot. If
the policeman were a private person, not in the
performance of duty, there would be no self-defense
because there would be no unlawful aggression on the part
of the deceased.[17] It may even appear that the public
officer acting in the fulfillment of duty is the aggressor, but

his aggression is not unlawful, it being necessary to fulfill his

duty.