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Republic of the Philippines

Department of Justice
Office of the City Prosecutor

Heirs of Jose, Case Number: 5234100

Complainant Charge:
The Crime of Homicide
Versus

PO3 Ronald, PO3 Selvi and

PO3 Danilo,
Respondent
X-------------------------------------X

For the Defense

The Revised Penal Code of the Philippines provides:
Article 11. Justifying circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending
himself.
2. Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his
relatives by affinity in the same degrees and those consanguinity within the fourth civil
degree, provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the revocation was given
by the person attacked, that the one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a stranger, provided
that the first and second requisites mentioned in the first circumstance of this Article
are present and that the person defending be not induced by revenge, resentment, or
other evil motive.
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4. Any person who, in order to avoid an evil or injury, does not act which
causes damage to another, provided that the following requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office.
6. Any person who acts in obedience to an order issued by a superior for some
lawful purpose.
From the above – stated provision of law, my clients, PO3 Ronald, PO3 Selvi
and PO3 Danillo must not incur any criminal liability and must be free from the
charges and allegations made by the heirs of Jose. My clients have performed a
justifiable act based from paragraph three, paragraph five and paragraph six of the
above – stated provision of law.

First Defense of the Accused

PO3 Ronald, PO3 Selvi and PO3 Danilo must be free from the charge of
homicide because from the above – stated provision of law, particularly paragraph
three, it provides that: “Anyone who acts in defense of the person or rights of the
stranger, provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person defending be not induced
by revenge, resentment or other evil motive.”, must not incur criminal liability.
It was held by the Supreme Court, in the case of U. S. v. Aviado, 38 Phil 10, 13
that what one may do in his defense, another may do for him. Persons acting in
defense of others are in the same condition and upon the same plane as those who
act in defense of themselves. The ordinary man would not stand idly by and see his
companion killed without attempting to save his life.
A question therefore arises, is PO3 Danilo, the one down on the ground at the
time the act was performed, considered as stranger even if they, the three police
officers, knew each other?
The answer must be in the affirmative. Any person not included in the
enumeration of relatives mentioned in paragraph two of article eleven of the Revised
Penal Code, is considered a stranger for the purpose of paragraph three of the
aforesaid article. Hence, even a close relative or friend, such as in the present case of
the police officers, is considered a stranger within the meaning of paragraph three of
the article.
Furthermore, for the above – stated provision to be in full force and effect, the
following requisites must be present:
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First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent and repel it.
Third. The person defending be not induced by revenge.

First requisite.
According to the decision of the Supreme Court, in the case of
People v. Tac – an, G.R. Nos. 76338-39, February 26, 1990, unlawful aggression
refers to an attack that has actually broken out or materialized or at the very least is
clearly imminent; it cannot consist in oral threats or a merely threatening stance or
posture. Furthermore, in the case of People v. Crisostomo, No. L – 38180, October
23, 1981, there is unlawful aggression when the peril to one’s own life, limb or right is
either actual or imminent. There must be actual physical force or actual use of
weapon. There must be an actual physical assault upon a person, or at least a threat
to inflict injury.
In the present case, the act performed by PO3 Selvi is justified because of the
existing imminent threat and peril to the life of PO3 Danilo who was down on the
ground and at the same time defenseless because Jose had aimed downward at and
about to shoot PO3 Danilo using his caliber .45 pistol. Furthermore, in this case, the
embattled policemen did not have the luxury of time. Neither did they have much
choice. PO3 Selvi’s shooting of Jose was an immediate and spontaneous reaction to
imminent danger. The acts performed by Jose, that is when he fired his gun against
PO3 Ronald and twisting the elbow of PO3 Danilo and after which aimed his gun and
about to shoot PO3 Danilo, constitutes as unlawful aggression against the police
officers because the physical attack of Jose, based from the factual circumstances of
the incident, has actually broken out and materialized. The attack came from the
deceased himself thereby satisfying the first requisite of paragraph three of article
eleven of the Revised Penal Code of the Philippines.

Second requisite
The Supreme Court elaborated in the case of People v. Ocaña, C. A., 67 O. G
3313 that in emergencies where the person of life of another is imperiled, human
nature does not act upon processes of formal reason but in obedience to the instinct
of self – preservation. The reasonableness of the necessity of the means employed
depend upon the circumstances of the case.
In the case of U.S. v. Molina, 19 Phil. 227, the Supreme Court stated 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 undisputable right
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to repel such danger by wounding his adversary and, if necessary, to disable him
completely so that he may not continue the assault.
Furthermore, in the case of U.S. v. Batungbacal, 37 Phil. 382, the Supreme
Court stated that the law protects not only the person who repels an aggression,
but even the person who tries to prevent an aggression that is expected. The second
requisite of defense means that there be a necessity of the course of action taken by
the person making a defense and there be a necessity of the means used and both
must be reasonable.
Moreover, in the case of People v. Encomienda, No. L – 26750, August 18,
1972, the Supreme Court stated that reasonable necessity of the means employed
does not imply material commensurability between the means of attack and defense.
What the law requires is rational equivalence, in the consideration of which will enter
as principal factors the emergency, the imminent danger to which the person attacked
is exposed, and the instinct, more than reason, that moves or impels the defense, and
the proportionateness thereof does not depend upon the harm done, but rest upon the
imminent danger of such injury.
In the case of the police officers, specifically PO3 Selvi, there was reasonable
necessity on his part to take course of action against the aggression of Jose which
was unlawful. The course of action taken by PO3 Selvi is necessary because of the
existing unlawful aggression of Jose against PO3 Danilo. However,
there was no intent on the part of PO3 Selvi to end the life of Jose based on the
factual circumstances of the incident since the intent of PO3 Selvi was to pacify Jose
that is why PO3 Selvi instinctively fired once at Jose to disable him and to avoid
further incident because of the unlawful aggression of Jose against PO3 Danilo. As to
the reasonableness of the means employed, PO3 Selvi is qualified for using his gun to
pacify Jose because of the nature and quality of the weapon used by Jose and his
physical character and size wherein, based from the factual circumstances of the
incident, Jose’s physical character and size is bigger than any of the three police
officers who responded during that fateful evening of November 22, 2014 and early
morning of November 23, 2014. If PO3 Selvi have not acted instinctively against the
actions of Jose during the incident, the latter may have shot PO3 Danilo and injure
him or even worse, killed the policeman. The act of PO3 Selvi, was merely instinctive
but then reasonable because of the present situation of PO3 Danilo thereby making
the second requisite of paragraph three of article eleven of the Revised Penal Code
present in the instant case.
Third requisite
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In the case of People v. Valdez, 58 Phil. 31, the Supreme Court stated
that the third requisite emphasizes that the offender be not induced by hate,
resentment or other evil motive.
Furthermore, in the case of U. S. v. Subing – subing, 31 Phil. 376,
the Supreme Court pronounced that the right of a person to take life in his own
defense or in defense of another who bears close relationship is universally
recognized. The common law goes further and permits human life to be taken for the
protection of a companion or other person even a stranger. The rule then is that what
one may do in his own defense, another may do for him.
In the present case, it is clear that there was no intent or inducement of
revenge, resentment or evil motive on the part of the police officers accused
particularly PO3 Selvi because his only intention was to save PO3 Danilo from the
imminent danger existing at the time of the incident. Revenge, resentment or evil
motive was absent at the time the act was performed by PO3 Selvi because of the
existing unlawful aggression of Jose against one of the police officers. Furthermore,
PO3 Selvi cannot be induced of resentment, revenge or even motive because PO3
Selvi does not even know Jose. It is contrary to human experience that resentment,
revenge or evil motive may exist at any time against any person at a blink of an eye
whom we do not even know.

All of the essential requisites are present

Because of the forgoing facts of the case and the jurisprudence applied, the
defense of strangers under paragraph three of article eleven of the Revised Penal
Code clearly applies as a justifying circumstance of defense in favor of the police
officers namely, PO3 Ronald, PO3 Selvi and PO3 Danilo who are accused of killing
Jose. There was an existing unlawful aggression on the part of Jose against one of
the police officers, PO3 Danilo, who, the latter, at that time, was defenseless because
he was pinned down by Jose who has a bigger physical character and size and that
Jose aimed and about to shoot PO3 Danilo. Because of such unlawful aggression and
imminent threat to the life of his colleague who was defenseless, it was proper, on the
part of PO3 Selvi to instinctively fire at Jose to prevent the shooting of PO3 Danilo
even if PO3 Selvi was just more than two feet away from Jose and PO3 Danilo. There
was no inducement or intent of revenge, resentment or evil motive on the part of the
police officers because of the sudden turn of events. During the incident, formal
thinking on the part of PO3 Selvi was absent and it was instinct that guided him to fire
at Jose, who was drunk.

Second Defense of the Accused

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The accused, PO3 Ronald, PO3 Selvi and PO3 Danilo must also be free of
charge based from the provision of law, specifically paragraph five of article eleven of
the Revised Penal Code which states that: “Any person who acts in the fulfillment of a
duty or in a lawful exercise of a right or office” must not incur criminal liability. For the
aforesaid justifying circumstance to apply, the following requisites must be present:
First. That the accused acted in the performance of a duty or in the lawful
exercise of a right or office;
Second. That 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.
In the case of People v. Pabillore, [CA] G.R. No. 00706 CR, April 15, 1964, the
Supreme Court pronounced that paragraph five of article eleven of the Revised Penal
Code does not permit a person in the exercise of a duty or right to transgress the laws
for him to be free from criminal liability. It must appear not only that he acted in the
performance of his duty but that the injury caused or offense committed was the
necessary consequence of the performance of such duty.
Furthermore, in the case of People v. Tengyao, L – 14675, November 29, 1961,
the Supreme Court reiterated that the accused must first prove he was duly appointed
to the position he claimed he was discharging at the time of the commission of the
offense.
Because of such pronouncement of the Honorable Supreme Court, we will be
proving such claim.

First requisite
In the case of the three police officers PO3 Ronald, PO3 Selvi and PO3 Danilo
acted in the performance of their duty because based from the factual circumstances
of the case, the three police officers were on duty at Police Station five when the
report was received and that Deputy Station Commander Police Inspector Joel
instructed PO3 Ronald with PO3 Danilo and PO3 Selvi, also on call of duty, to
respond to the incident, investigate and apprehend the perpetrator. Clearly, they were
acting in the performance of their duty at the time when the incident happened since
they, the three police officers, on call of duty.

Second requisite
In the People v. Oanis, 74 Phil. 257, 143, the Supreme Court held that 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.
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In case injury or death results from the policeman’s 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 policeman’s 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.
In this case, PO3 Ronald, PO3 Selvi and PO3 Danilo were in the performance
of duty as policemen when they responded to the place of incident and when PO3
Selvi shot Jose, who was going to perform or commit a felonious act.
Undoubtedly, the policemen were in the legitimate performance of their duty
when PO3 Selvi shot Jose. Furthermore, the shooting of Jose was part of the police
officer’s performance of duty when the police officers responded to the incident. Jose
was about to commit a felonious act, that is, to shoot and injure or even kill PO3
Danillo with intent. Moreover, Jose was committing an offense in the presence of the
policemen when Jose fired the first shot of bullet in the direction of one of the police
officers. The policemen were justified in shooting Jose if the use of force was
absolutely necessary to prevent the curtailment of the life of one of the police officers.
Thus, fulfillment of duty is the justifying circumstance that is applicable to this case.
The accused, the police officers, acted in fulfillment of a duty as a public officer
and protector of the society and the death of Jose was the necessary consequence of
the execution of their duty which was regularly performed and not merely presumed.
Because of the foregoing facts and jurisprudence, my clients are not liable for
any felony because they have defended themselves from the aggression of Jose and
were acting in the performance of their duties. For them to be charged of a felony and
face trial without probable cause is an act of contrary to law.
One of the elements of the crime of homicide under article two hundred and
forty nine of the Revised Penal Code is criminal intent. Criminal intent is lacking in the
present case because of the factual circumstances of the incident. Under article three
of the Revised Penal Code, to be held liable for intentional felony, the offender must
commit the act prohibited by the Revised Penal Code with specific criminal intent and
general criminal intent. General criminal intent is an element of all crimes but malice is
properly applied only to deliberate acts done on purpose and with design.
Moreover, evil intent must unite with an unlawful for there to be a felony and
furthermore, specific intent to kill, which is a requirement in the crime of homicide, is
absent and non existing in the present case because the intention of the three police
officers were to apprehend the perpetrator and on the part of PO3 Selvi, to defend and
help his co – police officer PO3 Danilo against the injury or even death that may be
caused by Jose.
As to the Civil Liability of the Respondents
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As to the damages alleged by the Heirs of Jose in their complaint, such

allegations must not be given due course because the Revised Penal Code,
particularly paragraph four of article one hundred and one provides that cases falling
within the subdivision four of article eleven, the persons for whose benefit the harm
has been prevented shall be civilly liable in proportion to the benefit which they may
have received.
Clearly in the present case, the alleged civil liability of my clients to the heirs of
Jose must not be given due course because they did not commit any felony, as
alleged by the heirs of Jose. Furthermore, my clients acted within the scope of
paragraphs three and five of article eleven of said code and not in the scope of
paragraph four of article eleven of said code.
No Probable Cause to Charge my Clients
In the case of Manebo v. Acosta, G.R. No. 169554, probable cause has been
defined as such facts as are sufficient to engender a well – founded belief that a crime
has been committed and that the respondents are probably guilty thereof.
Furthermore, in the case of Sy Thiong Shiou v. Sy Chim, G.R. No. 174168, the
Supreme Court held that in order that probable cause to file a criminal case may be
arrived at, or in order to engender the well – founded belief that a crime has been
committed, the elements of the crime charged should be present.
In the case of my clients, the elements of the crime of homicide, more
importantly the element of criminal intent is lacking. Based on the factual
circumstances of the incident, the elaboration that my clients, particularly PO3 Selvi
instinctively fired at Jose for purposes of pacifying the latter, is not considered as a
criminal intent to kill but a performance of a duty as a police officer.
We sympathize with the complainant of this instant case because of the loss
that they suffered. However, such loss must not be blamed to my clients because it
was the perpetrator himself who acquired loss for his family.
Because of the foregoing instances, I hereby submit the defenses of my clients
for their actions and pray to the Honorable Office of the City Prosecutor _______ that
the complaint of the heirs of Jose be dropped and dismissed for lack of probable
cause.