Republic of the Philippines

NATIONAL POLICE COMMISSION

PHILIPPINE NATIONAL POLICE
POLICE REGIONAL OFFICE 11
REGIONAL INVESTIGATION AND DETECTIVE MANAGEMENT DIVISION
Camp Sgt. Quintin M Merecido, Buhangin, Davao City

TO : HARRY G. ESPELA
SUBJECT : COMMENT ON THE MEMORANDUM
DATE : November 19, 2018

1. This pertains to the thievery of the issued firearm of PO2 Gilbert L. Estoista
presently assigned with CVPMFC consisting of one (1) Pistol caliber 9MM
Glock Gen 4 bearing SN: PNP35287 with one (1) magazine and 17 rds of
ammunition;

2. Based on the Investigation Report submitted by the COP of Mawab

Municipal Police Station (hereto attached as Annex 1), at about 7.30 P.M
of March 11, 2018, PO2 Estoista reported to Mawab MPS that his issued
short firearm was missing inside their house while he was attending a
Sunday mass located at San Roque Church of Mawab Compostela
Valley. Investigation conducted and disclosed that the suspect/s gained
entry and exit at the sliding window and forcibly opened the door of his
room and while inside, the culprits carted away his issued Pistol Cal 9MM
(Glock 17) bearing serial number PNP35287 which was placed inside his
plastic cabinet with One (1) magazine for Pistol 9MM and 17 rds of
ammunition, one (1) lap top Acer worth Twenty Eight Thousand Pesos
(28,000), Nike shoes worth Six Thousand Pesos (6,000.00) and cash
amounting to Five Thousand Pesos (5,000.00);

3. That the loss of the said firearm was beyond his will and control
considering that he left home to attend a Sunday Mass leaving his issued
short firearm and some personal belongings thereat;

5. When PO2 Estoista securely left his firearm inside his house, he was only
acting reasonably and prudently as a rational person, who in similar
circumstances would act likewise. He has sufficiently complied with the
required ordinary diligence expected from him. Paragraph 3, Section 8,
Rule VI of the Rules Implementing the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that xxx xxx xxx
public funds and property for official use and purpose shall be utilized with
the diligence of a good father of a family.

6. In Cruz v. Gangan, citing McKee v. Intermediate Appellate Court and

Valenzuela v. Court of Appeals, the Supreme Court held:

“Negligence is the omission to do something which a reasonable

man, guided upon those considerations which ordinarily regulate
the conduct of human affairs, would do, or the doing of something
which a prudent man and reasonable man would not do.
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 Negligence is want of care required by the circumstances.

The diligence with which the law requires the individual at all times
to govern his conduct varies with the nature of the situation in which
he is placed, and the importance of the act which he is to
perform”;

6. Leaving firearms inside the house while attending a Sunday mass cannot
per se be denounced as a negligent act. One cannot be expected to
bring firearms inside a place of worship. In fact, it is generally discouraged
to bring such inside. PO2 Estoista did not just leave the firearms at his
house but it was securely hidden from sight in order to ensure its safety
and custody. Any prudent or rational person under similar circumstances
can reasonably be expected to do the same. Also, because of PO2
Estoista’s limited financial resources, he could not allocate substantial
amount of money to purchase a safety vault where he can store his
firearms while off duty or while away from his dwelling. Nevertheless, he
exercised the diligence expected of him through the measures done by
him before leaving the house to attend the mass;

7. That the perpetrator intended to rob his house. The access to the dwelling
was effected by entering the window which is not intended for entrance
or egress and that the force were employed in order to open the door of
his room;

8. Robbery is a fortuitous event which exempts liability. The pertinent

provision, Article 1174 of the Civil Code, provides:

Except in cases expressly specified by the law, or when it is

otherwise declared by stipulation, or when the nature of the
obligation requires the assumption of risk, no person shall be
responsible for those events which could not be foreseen, or which,
though foreseen, were inevitable.

Nowhere in Article 1174 does it say that the event must be an act of God.
All it says is that the event could not be foreseen or is inevitable. In
Southeastern College v. CA, the Supreme Court held that fortuitous events
may be produced by two general causes: (1) by nature, such as
earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of
man, such as an armed invasion, attack by bandits, governmental
prohibitions and robbery.

SUBSCRIBED AND SWORN to before me this _____ day of ________________________at

________________________, Philippines.

Doc. No. ____

Page No. ____;
Book No. ____;
Series of ____.

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