Republic of the PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 149652 March 24, 2006EDUARDO L. BAXINELA, Petitioner-Appellant, vs.THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.D E C I S I O NAZCUNA, J.:Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide by the Regional Trial Court of Kalibo, Aklan1 (RTC) in Criminal Case No. 4877, as affirmed with modification by the Court of Appeals (CA) in CA-G.R. CR No. 23348.On February 19, 1997, an Information charging Baxinela with the crime of homicide was filed as follows:2 That on or about the 19th day of October , 1996, early in the morning, at Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, without justifiable cause and with intent to kill, did then and there wi[l]lfully, unlawfully and feloniously attack, assault and shoot one RUPERTO F. LAJO, thereby inflicting upon the latter mortal wounds, to wit:"A. EXTERNAL FINDINGS:= .56 cm entrance gunshot wound proximal third lateral aspect left arm with fracture of the left humerus.= 1 cm exit wound proximal third medial aspect left arm.= 1 cm entrance gunshot wound anterior axillary line 5th intercostals space left chest.B. INTERNAL FINDINGS= One liter of flood left thoracic cavity= Perforated left diaphragm.= One two liters of blood in the abdominal cavity.= 2 point perforation stomach= Multiple perforation small, and large intestines and mesenteries.= (+) Retroperitonial hematomaDIAGNOSIS: Gunshot wound left of arm with fracture of the humerus, penetrating the (L) thoracic cavity perforating the diaphragm, abdomen, stomach and, intestines and retroperitoneum with slugs lodging the vertebral colum[n].CAUSE OF DEATH: Cardiopulmonary arrestSecondary to severe bleedingSecondary to gunshot wound."as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan, which wounds directly caused the death of RUPERTO F. LAJO, as per Certificate of Death, hereto attached as Annexes "A" and "B" and forming part of this Information.That as a result of the criminal acts of the accused the heirs of the deceased suffered actual and compensatory damages in the amount of FIFTY THOUSAND PESOS (P50,000.00).CONTRARY TO LAW.On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY.3 During pre-trial, Baxinela informed the RTC that he would be claiming the justifying circumstance of self-defense.4 In accordance with the Rules of Criminal Procedure, the defense was the first to present evidence.5The first witness for the defense was Insp. Joel Regimen.6 He testified that on October 19, 1996, at about 12:35 a.m., he and Baxinela were walking along Toting Reyes Street in Kalibo, Aklan when they were approached by a civilian named Romy Manuba who informed them of a drunken person drawing a gun and creating trouble inside the Playboy Disco Pub located on the second floor of the Kingsmen building.7 They immediately proceeded to the reported place and, upon arrival, recognized a former colleague, SPO4 Legarda, who was with a companion. Legarda invited them to his table and the two obliged. Later, while seated at the table, they saw someone with a handgun visibly tucked at the back of his waist about 4 meters away. Regimen then instructed Baxinela to take a closer look at this person while he makes a call to the Kalibo police station but before Regimen could stand up, the man with a gun started to walk towards the door. As he passed by their table, Baxinela stood up, introduced himself as a policeman and asked the man why he had a gun with him. The man did not respond and, instead, suddenly drew out his gun. Baxinela then drew his sidearm and was able to fire first, hitting the man on his upper left arm. When the man fell down, Baxinela took his gun and wallet and handed them over to Regimen. Regimen then stated that he enlisted the services of the pubs security guard to bring the wounded man to the hospital while he and Baxinela proceeded to the Kalibo Police Station and reported the matter to SPO4 Salvador Advincula. They also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col. Bianson. The second witness for the defense was Romy Manuba,8 who testified that on October 19, 1996, at around 12:30 a.m., he was on the second floor of the Kingsmen building drinking liquor. While inside, he saw a drunken man wearing a white polo shirt accosting several persons with a gun. Fearing the man with the gun, he left the place to go home. On his way home he saw Regimen and Baxinela and he reported to them what he had seen earlier.The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He testified that on October 18, 1996, at about 11:00 p.m., he was inside the Superstar Disco Pub drinking beer with a companion named Toto Dalida. At about 12:40 a.m., Legarda saw Regimen and Baxinela enter the pub and he invited them over to his table. Later, as they were seating on the table, he noticed Regimen whisper something to Baxinela and, at the same time, pointing to a man with a handgun visibly tucked at the back of his waist. He then observed the armed person heading for the door. But as he passed by their table Baxinela stood up, approached the man from behind and said "Why do you have a gun. I am a policeman." The man did not reply and, instead, turned around and drew his gun. As the man was turning, Baxinela also drew his gun and was able to fire first, hitting the man on his left arm. After the man fell on the floor, Baxinela grabbed the other mans firearm and handed it over to Regimen. Regimen then requested one of the security guards to transport the wounded man to the hospital. Regimen and Baxinela then proceeded to the Kalibo Police Station while Legarda and Dalida went home.Baxinela took the witness stand as the last witness for the defense.10 He testified that he and Regimen were walking along Toting Reyes Street, looking for a tricycle to take them home, when they were met by Manuba. Manuba reported to them that there was an armed person, drunk inside the Superstar Disco Pub and creating trouble. They then proceeded to the pub to verify the report. Once there, they saw Legarda occupying a table near the entrance with a companion named Toto Dalida. Legarda invited them to sit at his table. As they were sitting down, Regimen whispered to him that there was a man with a gun tucked at the back of his waist and told him to watch that person while he tries to look for a telephone to call the Kalibo Police Station. As Regimen was about to stand, the armed man started to walk towards the entrance. When he passed their table, Baxinela stood up, introduced himself as a policeman and asked why he had a gun. The man did not respond but turned to face Baxinela, drawing his gun. Baxinela immediately drew his firearm and beat him to the draw, hitting the man on his left arm. When the man fell to the floor, Baxinela picked up the mans gun and handed it over to Regimen. Baxinela also took his wallet for identification. Regimen then told one of the security guards to bring the wounded man to the hospital. Thereafter, Baxinela and Regimen went to the Kalibo Police Station to report the incident and turned over the wallet. Next, they proceeded to Camp Pastor Martelino and also reported the incident to Col. Bianson. To rebut the claim of self-defense, the prosecution presented as its first witness, Abelardo Alvarez.11 Alvarez was a security guard assigned to the Kingsmen building during the incident in question. He testified that he was already acquainted with Baxinela and that he saw him, together with Legarda and Regimen, already in the Superstar Disco Pub as early as 11:00 p.m. of October 18, 1996 drinking. 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. Lajo was then on his way out when Baxinela followed Lajo with a gun already drawn out. Then, from behind, Baxinela held Lajos left arm and said "Ano ka hay? Mam-an may baril ka?"12 He then heard Lajo respond "I am a MIG, Pare" after that Alvarez heard an explosion coming from Baxinelas gun. Baxinela then got a gun from Lajos waist and handed it over to Regimen. Afterwards Baxinela held both of Lajos arms, who was still standing, and pushed him against the wall and repeated his question. Lajo answered "Why did you shoot me? I am also a military." At this point Lajo got out his wallet and gave it to Baxinela. Baxinela opened the wallet and looked at an ID. Afterwards Baxinela and Regimen just left and did nothing to aid Lajo. Alvarez and his fellow security guard, Rolando Gabriel, then picked up Lajo and boarded him on a tricycle. Gabriel brought him to the hospital, while Alvarez remained at his post.The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially corroborated the testimony of Alvarez on what occurred on the night in question. He testified that he noticed the presence of Lajo inside the pub at around 10:30 p.m. of October 18, 1996 while he first saw Baxinela, Regimen and Legarda there as early as 11:00 p.m. At around 12:45 a.m., he witnessed Lajo going towards the entrance of the pub where Baxinela was already standing and holding a .45 caliber pistol. Baxinela approached Lajo from behind and held his left shoulder asking "Who are you?" Lajo responded "I am MIG." Afterwards he was shot by Baxinela. Baxinela then got Lajos gun from his waist and gave it to Regimen. Thereafter, Baxinela, with both hands, pushed Lajo against the wall and again asked "What are you?" Lajo got his wallet from his back pocket and handed it over to Baxinela. After opening the wallet Baxinela and Regimen left the disco pub. Lajo, still standing, took two steps and then fell down. Gabriel and Alvarez then picked Lajo up and carried him to a tricycle which took him to the hospital. Gabriel also stated that ten minutes before the shooting incident there was another incident where Lajo accosted some customer but afterwards he saw that the two shook hands and embraced each other.The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer who entered in the police blotter the incident that occurred in Superstar Disco Pub. He also testified on the events that occurred inside the precinct wherein the gun of Lajo accidentally fell on the table and fired.The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified as to damages.14 As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he was on the ground floor of Kingsmen building with Alvarez and Gabriel when they heard a shot ring out from the second floor.15After receiving all of the evidence, the RTC found the version of the prosecution, that Baxinela shot Lajo as the latter was turning around and without having drawn his gun, more convincing, and rendered a decision convicting Baxinela. The RTC, however, considered in favor of Baxinela the mitigating circumstances of voluntary surrender and provocation. The dispositive portion of the decision is as follows:16WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty beyond reasonable doubt of the crime of Homicide, and considering the mitigating circumstances of voluntary surrender and provocation, and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of 4 years of prision correccional medium as minimum, to 8 years and 1 day of prision mayor medium as maximum. The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for the death of Sgt. Ruperto F. Lajo; b) then sum of P81,000.00 as actual and compensatory damages; and c) the sum of P30,000.00 as moral damages; plus costs of suit.SO ORDERED.On appeal, the CA modified Baxinelas conviction by disallowing the mitigating circumstance of sufficient provocation. Accordingly, the dispositive portion of the appellate courts decision reads as follows:17IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the Appellant guilty beyond reasonable doubt of the crime charged is AFFIRMED, with the MODIFICATION, that the Appellant is hereby meted an indeterminate penalty of from EIGHT (8) YEARS and ONE (1) DAY OF Prision Mayor, as Minimum, to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS of Reclusion Temporal, as Maximum.SO ORDERED.Baxinela filed the present petition for review on certiorari citing the following grounds:A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN GIVING CREDENCE TO THE VERSION OF THE PROSECUTION.B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING CIRCUMSTANCES OF SELF DEFENSE OR IN THE ALTERNATIVE THE LAWFUL PERFORMANCE OF OFFICIAL DUTY UNDER ARTICLE 11 PARAGRAPHS 1 AND 5, RESPECTIVELY, OF THE REVISED PENAL CODE.C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED.D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT CONSIDERING THE QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR OF THE ACCUSED.Resolution of the petition will entail an initial determination of which version of the incident will be accepted. The defense alleges that Baxinela proceeded to the Superstar Disco Pub in response to the information given by Manuba that there was an armed drunken man accosting several people inside the pub. Once they arrived, they saw Lajo with a handgun visibly tucked behind his waist. When Baxinela introduced himself as a policeman and asked why he had a handgun, Lajo suddenly drew on him prompting Baxinela to pull out his gun and fire upon Lajo, critically wounding him. Thereafter, the defense claims that Regimen ordered the security guards to bring Lajo to the hospital while they proceed to the police station to report the incident. The prosecution, on the other hand, contends that Baxinela was already in the pub drinking with Regimen and Legarda for more than a couple of hours prior to the shooting incident. After witnessing an altercation between Lajo and another customer, Baxinela decided to confront Lajo on why he had a gun with him. Baxinela approached Lajo from behind and held the latter on the left shoulder with one hand while holding on to his .45 caliber service firearm with the other. As Lajo was turning around, to see who was confronting him, Baxinela shot him. Baxinela then got Lajos wallet and fled the scene with Regimen.As mentioned, the RTC and CA accepted the prosecutions version. The Court finds no reason to disturb such findings. Factual findings of the trial court, when adopted and confirmed by the CA, are final and conclusive unless circumstances are present that would show that the lower courts have overlooked, misunderstood or misconstrued cogent facts that may alter the outcome of the case.18 It does not appear that the conclusions that led to the conviction of Baxinela were arbitrarily reached by the lower courts and Baxinela has failed to point out any relevant circumstance that would convince the Court that a re-examination of the facts is warranted. On the contrary, Baxinelas version is challenged by his own contradicting testimony and other documentary evidence. Early in his testimony, Baxinela maintained that Lajo had already pulled his handgun and was aiming at him when he fired:Q. What else did you do after identifying yourself as a policeman and ask[ing] why he has a gun?A. He did not respond.Q. What else happened if anything happened?A. He immediately drew his gun turning towards me and aimed it at me.19Subsequently, when the trial court propounded clarificatory questions, Baxinelas new assertion was that the firearm was still at the back of Lajo:Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet?A. Yes sir, already pulled out but still at the back.20 Furthermore, the follow-up investigation conducted by the police yielded a different picture of what happened. This was entered into the police records as Entry No. 3359 and it reads in part: 21x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a firearm and when the victim SGT Ruperto Lajo PA was about to get his wallet on his back pocket for his ID, SPO2 Eduardo Baxinela anticipated that the victim was drawing his firearm on his waist prompting said policeman to shoot the victim. x x xThe Court now proceeds to determine if, following the prosecutions version of what happened, Baxinela can claim the justifying circumstances of self-defense and fulfillment of a duty or lawful exercise of a right or office.The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2) lack of sufficient provocation on the part of the accused; and 3) employment of reasonable means to prevent and repel and aggression.22 By invoking self-defense, Baxinela, in effect, admits killing Lajo, thus shifting upon him the burden of the evidence on these elements.The first requisite is an indispensable requirement of self-defense. It is a condition sine qua non, without which there can be no self-defense, whether complete or incomplete.23 On this requisite alone, Baxinelas defense fails. Unlawful aggression contemplates an actual, sudden and unexpected attack on the life and limb of a person or an imminent danger thereof, and not merely a threatening or intimidating attitude.24 The attack must be real, or at least imminent. Mere belief by a person of an impending attack would not be sufficient. As the evidence shows, there was no imminent threat that necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the former was safely behind the victim and holding his arm. It was Lajo who was at a disadvantage. In fact, it was Baxinela who was the aggressor when he grabbed Lajos shoulder and started questioning him. And when Lajo was shot, it appears that he was just turning around to face Baxinela and, quite possibly, reaching for his wallet. None of these acts could conceivably be deemed as unlawful aggression on the part of Lajo. Next, we consider the alternative defense of fulfillment of a duty. 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.25 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.Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability by reason of a mistake of fact, a doctrine first enunciated in United States v. Ah Chong.26 It was held in that case that a mistake of fact will exempt a person from criminal liability so long as the alleged ignorance or mistake of fact was not due to negligence or bad faith. In examining the circumstances attendant in the present case, the Court finds that there was negligence on the part of Baxinela. Lajo, when he was shot, was simply turning around to see who was accosting him. Moreover, he identified himself saying "I am MIG." These circumstances alone would not lead a reasonable and prudent person to believe that Baxinelas life was in peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes clear negligence. But even if the Court assumes that Lajos actions were aggressive enough to appear that he was going for his gun, there were a number of procedures that could have been followed in order to avoid a confrontation and take control of the situation. Baxinela, whom the Court assumes not to be a rookie policeman, could have taken precautionary measures by simply maintaining his hold on to Lajos shoulders, keeping Lajo facing away from him, forcing Lajo to raise his hands and then take Lajos weapon. There was also Regimen who should have assisted Baxinela in disabling and disarming Lajo. The events inside the disco pub that unnecessarily cost the life of Lajo did not have to happen had Baxinela not been negligent in performing his duty as a police officer.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,27 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.28 Accordingly, the Court grants in favor of Baxinela a privileged mitigating circumstance and lower his penalty by one degree. His entitlement to the ordinary mitigating circumstance of voluntary surrender is also recognized, thereby further reducing his penalty to its minimum.The Court commiserates with our policemen who regularly thrust their lives in zones of danger in order to maintain peace and order and acknowledges the apprehensions faced by their families whenever they go on duty. But the use of unnecessary force or wanton violence is not justified when the fulfillment of their duty as law enforcers can be effected otherwise. A "shoot first, think later" attitude can never be countenanced in a civilized society. WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of appellant Eduardo Baxinela for the crime of homicide is AFFIRMED but his sentence is reduced to an indeterminate penalty of four (4) years and two (2) months of prision correccional medium, as minimum, to eight (8) years of prision mayor minimum, as maximum. The awards of damages are affirmed. No costs.SO ORDERED.ADOLFO S. AZCUNAAssociate JusticeWE CONCUR:REYNATO S. PUNOAssociate JusticeChairpersonANGELINA SANDOVAL-GUTIERREZAssociate JusticeRENATO C. CORONAAsscociate Justice

CANCIO C. GARCIAAssociate JusticeA T T E S T A T I O NI attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.REYNATO S. PUNOAssociate JusticeChairperson, Second DivisionC E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.ARTEMIO V. PANGANIBAN Chief Justice____________________________________________________

DIGEST

People vs. RabanalFacts:Sometime in August of 1996, Bonnie Rabanal, a security guard of McDonalds was approached by Rudy Pascua, who was armed and intoxicated suddenly kicked the podium that fell on him. Furthermore, the said Rudy Pascua was collecting P100 but Rabanal refused to give in. Pascua demanded that Rabanal should surrender his firearm. While Pascua was reaching for the firearm of Rabanal, the latter pushedthe former and grabbed his gun. At that very moment pulled the gun and fired a shot for 4 times. Rabanal take possession of Pascuas firearms and surrender it tothe security agency as proof that someone attempted to kill him and later to Camp Crame. For the reason that Pascua was a body guard of one named Fernanadez andmight have influenced in Dagupan area, he refuses to surrender in the said area. The lower court finds Rabanal of the crime Murder and sentenced to suffer death penalty and to indemnify the heirs of the deceased.Issues:1.Whether or not Rabanal is guilty of the crime murder?2.Whether or not the indemnity is reasonably imposed?Decision of the Supreme Court:Decision of the lower court was modified from the crime of murder to the crime of homicide and deleted the award of damages was deleted.Ruling:1 ) For self defense to prosper, the accused must proved that the elements thatwould constitute a self defense must be present: (1) unlawful aggression on thepart of the victim; (2) reasonable necessity of the means employed to prevent orrepel it; and (3) lack of sufficient provocation on the part of the person defending himself. Although all the three elements must concur, self-defense must rest firstly on proof of unlawful aggression on the part of the victim. If no unlawful aggression has been proved, no self-defense may be successfully pleaded, whether complete or incomplete. In other words in self-defense, unlawful aggression is a primordial element. It presupposes an actual, sudden and unexpected attack or imminent danger on the life and limb of a person not a mere threatening orintimidating attitude at the time the defensive action was taken against the aggressor. There is unlawful aggression when the peril to ones life, limb or rightis either actual or imminent. Actual peril to ones life means that the danger must be present, that is, actually in existence, or imminent in that the danger ison the point of happening. This cannot be said in this case because the victimwas unarmed when he was shot by accused-appellant. Indeed, the danger had already ceased when the victim laid his gun down on the pavement, thus enabling accused-appellant to push him away. It must be remembered that the means employed by the person making a defense must be rationally necessary to prevent or repel an unlawful aggression. What the law requires is a 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 upon the imminent danger of such injury.2) They affirmed the award of civil indemnity in the amount of P50,000.00, pursuant to prevailing jurisprudence. Such award requires no proof other than the death of the victim. Likewise, the award of moral damages in the amount of P50,000.00 is consistent with controlling case law taking into consideration the pain and anguish of the victims family brought about by his death. However, the award of P26,000.00 for the Eternal Garden plot, P60,000.00 for the coffin of the victim and P100,000.00 for the wake and other expenses incurred in connection with the death of the deceased, amounting to a total of P186,000.00, should be modified. The trial court did not present any computation to justify such an amount. Infact, other than the bare allegations of the victims widow to this effect, the records are totally bereft of any receipt or voucher to justify the trial courtsaward for burial and other expenses. The rule is that every pecuniary loss mustbe established by credible evidence before it may be awarded. Credence can be given only to claims which are duly supported by receipts or other credible evidence. Thus, the amount of actual damages should accordingly be reduced to P66,000.00, which is borne out by the evidence.People vs. GenblazoFacts:Sometime in January of 1988 at Quezon Street at Quezon, Obein and Opalsa are walking their way home when Gneblazo together with 6 other men throw stones at themand they retaliated. Upon their notice however, that Genblazo was drawing his knife the two friends run away from Geneblazo. Unfortunately for Opalsa, Geneblazo was able to get a hold on him and stabbed him twice. A police in the name of SPO1 Quiogue get noticed of the commotion outside his house and decided to checkon it. Then he fired his gun at the time he noticed the two men brawling as a sign for them to stop, but they never did. SPO1 then tried to separate the two butGeneblazo hit him in his fingers and Geneblazo run away and surrender to officer Baloyloy. On the other hand, the SPO1 together with Obien and the Brgy. Captain brought Opalsa to the hospital but declared to be dead on arrival.Issue:Whether or not Geneblazo was guilty of the crime murder?Decicion of S.C.:They Modified the decision of the lower court from murder to homicide.Ruling:For self-defense to prosper, it must be established that: (1) there was unlawfulaggression by the victim; (2) that the means employed to prevent or repel suchaggression was reasonable; and (3) that there was lack of sufficient provocationon the part of the person defending himself. It is quite apparent that it was not the victim who committed the unlawful aggression but the accused-appellant himself. Unlawful aggression contemplates an actual, sudden and unexpected attack,or imminent danger thereof, and not merely a threatening or intimidating attitude -- there has to exist a real danger to the life or personal safety of the person claiming self-defense. The prosecution failed to prove that the qualifying circumstance of treachery was present in this case. Treachery must be proven as clearly and as cogently as the crime itself. The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself.People vs. JaurigueFacts:On September 13, 1942, Amado Capina approached Avelina Jaurigue while feeding her dogs. Amado confessed his love for Avelina, but his loved was turned down by the latter. Amado reacted by kissing, embracing, and touching the breast of Avelina. Avelina retaliated with a slapped on the face, fist blow, and kicked him. Since then Avelina armed herself with a knife. By September 15 Amado climbed up the house into the room of Avelina, and Avelina was able to get noticed of that and screamed for help. Moment after, her parents come to her aid and able to foundout that Amado was in the room and Amado ask for forgiveness. The following morning Amado together with his parents ask for apology. On the evening of September 20, Amado noticed Avelina in the church and decided to sat next to Avelina. Suddenly Amado place hand on the upper part of her right thigh. Avelina Jaurigue,conscious of her personal dignity and honor, pulled out with her right hand thefan knife , which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but she quicklygrabbed the knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting upon him a mortal wound.Issue:Whether or not Jaurigue was guilty of the crime Homicide?Decision of S.C.:Guilty of the crime Homicide and reduced to two degrees.Ruling:Stabbing to death the deceased Amado Capina, in the manner and form and under the circumstances above indicated, the defendant and appellant committed the crimeof homicide, with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor. Avelina is not a criminal by nature. She happened to kill under the greatestprovocation. She is a God-fearing young woman, typical of our country girls, who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they knownot where.Baxinela vs. PeopleFacts:On October 19, 1996, Baxinela and Regimen was in Playboy Disco Pub located at the 2nd flr. Of Kingsmen bldg. they saw someone with a handgun visibly tucked at the back of his waist. The man started walking at the door even before Regimen could come to him. As the man passed by their table, Baxinela from behind holds the mans arm and ask why he did have a gun with him. Upon suspicion that the man istaking out his gun, he shoot the man. The security guards pick up the man who appeared to be Sgt. Lajo, while Baxinela reported the event to SPO4 Advincula.Issue:Whether or not Baxinela is guilty of Homicide?Decision of S.C.:The crime of Homicide was affirmed with modification.Ruling:For self-defense to prosper, it must be established that: (1) there was unlawfulaggression by the victim; (2) that the means employed to prevent or repel suchaggression was reasonable; and (3) that there was lack of sufficient provocationon the part of the person defending himself. Unlawful aggression contemplates an actual, sudden and unexpected attack on the life and limb of a person or an imminent danger thereof, and not merely a threatening or intimidating attitude. The attack must be real, or at least imminent. Mere belief by a person of an impending attack would not be sufficient. As the evidence shows, there was no imminent threat that necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the former was safely behind the victim and holding his arm. It was Lajo who was at a disadvantage. In fact, it was Baxinela who was the aggressor whenhe grabbed Lajos shoulder and started questioning him. And when Lajo was shot, it appears that he was just turning around to face Baxinela and, quite possibly,reaching for his wallet. None of these acts could conceivably be deemed as unlawful aggression on the part of Lajo.The defense of fulfillment of a duty. In order to avail of this justifying circumstance it must be shown that: 1) the accused acted in the performance of a dutyor in the lawful exercise of a right or office; and 2) the injury caused or theoffense 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 whyLajo 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. Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability by reasonof a mistake of fact, a doctrine first enunciated in United States v. Ah Chong.It was held in that case that a mistake of fact will exempt a person from criminal liability so long as the alleged ignorance or mistake of fact was not due tonegligence or bad faith. In examining the circumstances attendant in the presentcase, the Court finds that there was negligence on the part of Baxinela. Lajo,when he was shot, was simply turning around to see who was accosting him. Moreover, he identified himself saying "I am MIG." These circumstances alone would notlead a reasonable and prudent person to believe that Baxinelas life was in peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes clear negligence. The the use of unnecessary force or wanton violence is not justifiedwhen the fulfillment of their duty as law enforcers can be effected otherwise. A"shoot first, think later" attitude can never be countenanced in a civilized society.Cabuslay vs. SandingangbayanFacts:PNP Provincial director received a reliable intelligence report of a plot to assassinate the Mayor and Vice- mayor of Kauswagan, Lanao del Norte. In response tothe said information, he dispatched PNP personnel to conduct mobile checkpoints along national highway. In the morning of August 5, 1992, a man driving a redHonda motorcycle going to the direction of Pagadian City approached the checkpoint. The driver of the red Honda was a collector in the name of Paquito Umaas, and around the vicinity other than the policemen was Mr. Zaragoza, a technician of the said street. The police asked Paquito to show his ID. Paquito took the IDout and when it reached Cabuslay, he opened fire at Paquito. Cabuslay consumed the entire magazine of his gun. Then, the policemen took Paquito to the Hospitalbut declared dead on arrival by Dr. Caga. On August 10, the brgy. Captain of Bulua, Cagayan de Oro requested NBI forensic to examine the body of Paquito for gunpowder nitrate. The result showed that Paquito was Negative of Gunpowder Nitrate. Also, there was a post mortem examination that showed that the cause of deathwas due to multiple gunshot wounds.Issue:Whether or not Cabuslay was guilty of Homicide?Decision of the S.C.:Affirmed the decision of the lower court with modifications.Ruling:For self-defense to prosper, it must be established that: (1) there was unlawfulaggression by the victim; (2) that the means employed to prevent or repel suchaggression was reasonable; and (3) that there was lack of sufficient provocationon the part of the person defending himself. It accorded full faith and credence to the testimony of Zaragosa as it was 'categorical, straightforward, spontaneous and consistent. Moreover, it observed that no proof was adduced to show thatZaragosa was moved by some evil motive to falsely testify against the accused Cabuslay. The Sandiganbayan likewise noted grave deficiencies in the evidence ofthe defense as follows: (1) The physical existence of the handgun allegedly usedby the victim Paquito was not established as the same was not presented beforethe court during the trial; (2) The affidavit executed by Gualberto Dayot Pascopresented by the defense to impeach the credibility of Zaragosawas taken underintimidating and dubious circumstances, which fact creates doubt as to the affidavit's voluntariness and credibility; (3) The medical certificate purportedly evidencing that Regencia had been shot has no probative value as the doctor who executed the same did not testify during trial. Notably, the medical certificate was executed by a doctor different from the one who treated Regencia's wound; (4)The number of gunshot wounds inflicted upon the victim betrays petitioner's claim of reasonable necessity of the means used to repel the unlawful aggression allegedly displayed by the victim. In order that defense of a stranger may be appreciated, the following requisites must concur: (1) unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it; and (3) theperson defending be not induced by revenge, resentment or other evil motive. Unlawful aggression refers to an attack or a threat to attack, positively showing the intent of the aggressor to cause injury. It presupposes not merely a threatening or an intimidating attitude, but an actual, sudden and unexpected attack oran imminent danger thereof, which imperils one's life or limb. Thus, when thereis no peril, there is no unlawful aggression. Next, petitioner contends that thekilling of Paquito resulted from the lawful performance of his duty as police officer. However, such justifying circumstance may be invoked only after the defense successfully proves that the accused acted in the performance of a duty, andthe injury or offense committed is the necessary consequence of the due performance or lawful exercise of such duty. These two requisites are wanting in this case. The victim was not committing any offense at the time. Petitioner has not sufficiently proven that the victim had indeed fired at Regencia. Killing the victim under the circumstances of this case cannot in any wise be considered a valid performance of a lawful duty by a man who had sworn to maintain peace and order and to protect the lives of the people. As aptly held in People v. de la Cruz,Performance of duties does not include murder. Murder is never justified, regardless of the victim. Bottom of Form

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