a. Justifying Circumstances

JUSTIFYING CIRCUMSTANCES

Those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. There is no crime and there is no criminal.

There is also no civil liability, except in par. 4 of Art. 11, RPC (avoidance of greater evil or injury).

Burden of proof

It is incumbent upon the accused to prove the justifying circumstances claimed by him to the satisfaction of the court.

Rights included in self-defense:

• Defense of person;
• Defense of rights protected by law;
• Defense of property; and
• Defense of chastity.

ELEMENTS:

1. Unlawful Aggression;

Of the three elements of self-defense, unlawful aggression is indispensable.

Unlawful aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind. (People vs. Alconga, G.R. No. L-162)

Unlawful aggression refers to "an actual physical assault, or at least a threat to inflict real imminent injury, upon a person." (People vs. Vega y Ramil, G.R. No. 216018, J. CAGUIOA)

In case of a threat, it must be offensive and strong, positively showing the wrongful intent to cause injury. It is present when the one attacked faces an actual assault or a real and imminent threat of unlawful injury, not only a threat to one’s life. (People vs. Vergara, G.R. No. 177763)

Peril to one’s life

• Actual – The danger must be present, that is, actually in existence; or
• Imminent – The danger is on the point of happening. It is not required that the attack already begins, for it may be too late.
• Peril to one’s limb Includes peril to the safety of one’s person from physical injuries.

Emergency Rule

An automobile driver who, by the negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes such a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice [Engada v. CA, G.R. No. 140698 (2003)].

Retaliation is not self-defense

Without right

It refers to either (1) conduct undertaken without or in excess of authority; or (2) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law.

The situation must be:

• Sudden and unexpected;
• Deprive him of all opportunity for deliberation; and
• It must be such that the actor must have No knowledge that unusual consequences may result from his act [Id.]

Without appreciable interval of time

To justify homicide on the ground of self-defense, it is essential that the killing of the deceased by the defendant be simultaneous with the attack made by the deceased, or at least both acts succeeded each other without appreciable interval of time. (U.S. vs. Ferrer, 1 Phil. 56)

When the killing of the deceased by the accused was after the attack made by the deceased, the accused must have no time nor occasion for deliberation and cool thinking. (Reyes, Book I)

Unlawful aggression must come from the person who was attacked by the accused

To constitute an element of self-defense, the unlawful aggression must come, directly or indirectly, from the person who was subsequently attacked by the accused. (People vs. Gutierrez, G.R. No. 31010)

Where the parties mutually agree to fight, it becomes immaterial who attacks or receives the wound first, for the first act of force is incidental to the fight itself and in no wise is it an unwarranted and unexpected aggression which alone can legalize self-defense. In this situation, other circumstances modifying criminal liability must be assessed separately if raised and proved. (Jacobo y Sementela vs. CA and People, G.R. No. 107699)

When the aggressor flees, unlawful aggression no longer exists

When unlawful aggression ceases, the defender no longer has any right to kill or wound the former aggressor, otherwise, retaliation and not self-defense is committed. A person making a defense has no more right to attack an aggressor when the unlawful aggression has ceased. (Dela Cruz vs. People, G.R. No. 189405)

The rule now is "stand ground when in the right"

Where the accused is where he has the right to be, the law does not require a person to retreat when his assailant is rapidly advancing upon him with a deadly weapon. (U.S. vs. Domen, 37 Phil. 57)

Exceptions to the foregoing general rule (that is, when malice is not presumed from a defamatory imputation):

Private communication in performance of any legal, moral or social duty.

How to determine the unlawful aggressor

In the absence of direct evidence to determine who provoked the conflict, it shall be presumed that, in the nature of the order of things, the person who was deeply offended by the insult was the one who believed he had a right to demand explanation of the perpetrator of that insult, and the one who struck the first blow when he was not satisfied with the explanation offered. (U.S. vs. Laurel, G.R. No L7037)

Belief of the accused may be considered in determining the existence of unlawful aggression

There is self-defense even if the aggressor used a toy pistol, provided the accused believed it was a real gun. (People vs. Boral, 11 C.A. Rep. 914)

Updated: A belief that a toy pistol is real must be reasonable from the accused’s standpoint, and the perceived unlawful aggression must be actual or imminent (People v. Olarbe, G.R. No. 227421, 23 July 2018).

Threat to inflict real injury as unlawful aggression

In order to consider that unlawful aggression was actually committed, it is necessary that an attack or material aggression, an offensive act positively determining the intent of the aggressor to cause an injury shall have been made; a mere threatening or intimidating attitude is not sufficient to justify the commission of an act which is punishable per se, and allow a claim of justification on the ground that it was committed in self-defense. (Reyes, Book I)

Aggression must be real, not merely imaginary

The aggression must be real or at least imminent and not merely imaginary. A belief that a person is about to be attacked is not sufficient. Even an intimidating or threatening attitude is by no means enough. A mere push or shove not followed by other acts placing in real peril the life or personal safety of the accused is not unlawful aggression. (People vs. Bautista y Nieles, G.R. No. 109800)

2. Reasonable necessity of the means employed to prevent or repel it;

The reasonableness of either or both such necessity depends on the existence of unlawful aggression and upon the nature and extent of the aggression.

Reasonable necessity does not mean absolute necessity. It must be assumed that one who is assaulted cannot have sufficient tranquility of mind to think, calculate and make comparisons which can easily be made in the calmness of the home. It is not the indispensable need but the rational necessity which the law requires. In each particular case, it is necessary to judge the relative necessity, whether more or less imperative, in accordance with the rules of rational logic. The defendant may be given the benefit of any reasonable doubt as to whether he employed rational means to repel the aggression. (Mariano y Garcia vs. People, G.R. No. 224102).

Elements of necessity

• Necessity of the course of action taken – If there was no unlawful aggression or, if there was, it has ceased to exist, there would be no necessity for any course of action to take as there is nothing to prevent or to repel. In determining the existence of unlawful aggression that induced a person to take a course of action, the place and occasion of the assault and the other circumstances must be considered. (Reyes, Book I)
• Necessity of the means used – The means employed by the person making a defense must be rationally necessary to prevent or repel an unlawful aggression.

Test of reasonableness of the means used

• Nature and quality of the weapon used by aggressor
• Physical condition, character, size and other circumstances of aggressor;
• Physical condition, character, size and circumstances of person defending himself ;
• Place and occasion of assault;

Perfect equality between the weapon used by the one defending himself and that of the aggressor is not required, because the person assaulted does not have sufficient tranquility of mind to think, to calculate and to choose which weapon to use. (People vs. Padua, C.A., 40 O.G. 998).

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 rests upon the imminent danger of such injury. (People vs. Encomienda, G.R. No. L-26750).

Under the doctrine of rational equivalence, a plea of self-defense would prosper if there is a rational equivalence between the means of attack by the unlawful aggressor and the means of defense by the accused that would characterize the defense as reasonable. The doctrine of rational equivalence presupposes the consideration not only of the nature and quality of the weapons used by the defender and the assailant but also of the totality of circumstances surrounding the defense vis-a-vis, the unlawful aggression. (People v. Olarbe, G.R. No. 227421)

When the one defending himself is a peace officer

The peace officer, in the performance of his duty, represents the law which he must uphold. While the law on self-defense allows a private individual to prevent or repel an aggression, the duty of a peace officer requires him to overcome his opponent. A police officer is not required to afford a person attacking him, the opportunity for a fair and equal struggle. (U.S. vs. Mojica, G.R. No. 17650)

NOTE: The first two requisites thus far explained are common to self-defense, defense of a relative, and defense of a stranger.

3. Lack of sufficient Provocation on the part of the person defending himself

To be entitled to self-defense, the accused must not have given cause for the aggression by his unjust conduct or by inciting or provoking the victim. (Rimano v. People, G.R. No. 157657)

The exercise of a right cannot give rise to sufficient provocation. (US v. Pascua, 28 Phil. 222)

The provocation must be sufficient, which means that it should be proportionate to the act of aggression and adequate to stir the aggressor to its commission. (People v. Alconga, G.R. No. L-162)

Cases in which the 3rd requisite is considered present:

• When no provocation at all was given to the aggressor by the person defending himself
• When, even if a provocation was given, it was not sufficient
• When, even if the provocation was sufficient, it was not given by the person defending himself
• When, even if a provocation was given by the person defending himself, it was not proximate and immediate to the act of aggression (Reyes, Book I)

1. Unlawful Aggression;

An indispensable requirement.

Unlawful aggression need not exist as a matter of fact. It can be made to depend upon the honest belief of the one making a defense, as when two sons attacked the victim in the belief that the latter unlawfully attacked their father who was lying on the floor when they arrived. (U.S. v. Esmedia, G.R. No. L-5749)

2. Reasonable necessity of the means employed to prevent or repel it;

The gauge of reasonable necessity of the means employed to repel the aggression as against one's self or in defense of a relative is to be found in the situation as it appears to the person repelling the aggression. The reasonableness of the means adopted is not one of mathematical calculation or material commensurability between the means of attack and defense but the imminent danger against the subject of the attack as perceived by the defender and the instinct more than reason that moves the defender to repel the attack. (Eslabon vs. People, G.R. No. L-66202)

3. In case the provocation was given by the person attacked, the one making the defense had no part in such provocation.

The clause, “in case the provocation was given by the person attacked,” used in stating the 3rd requisite does not mean that the relative defended should give provocation to the aggressor. It merely states an event which may or may not take place.

There is still a legitimate defense of relative even if the relative being defended has given provocation, provided that the one defending such relative has no part in the provocation.

The relative defended may be the original aggressor. (Reyes, Book I)

Relative entitled to the defense:

• Spouse;
• Ascendants;
• Descendants;
• Legitimate, natural or adopted brothers and sisters, or relatives by Affinity (created by marriage or law) in the same degrees; and
• Relatives by Consanguinity (blood relatives) within the 4th civil degree.

ELEMENTS:

• Unlawful aggression (indispensable requirement);
• Reasonable necessity of the means employed to prevent or repel it; and
• Person defending be not induced by revenge, resentment or other evil motive.

The defense of a stranger must be actuated by disinterested or generous motive. (Reyes, Book I)

4. AVOIDANCE OF GREATER EVIL OR INJURY (STATE OF NECESSITY) (PAR. 4)

ELEMENTS:

• Evil sought to be avoided actually exists;

Evil that is merely expected or anticipated or may happen in the future is not sufficient.

• Injury feared be greater than that done to avoid it; and

Greater evil should not be brought about by the negligence or imprudence of the actor.

• No other practical and less harmful means of preventing it.

The necessity must not be due to the negligence or violation of any law by the actor.

This covers injury to persons and damage to property. (Reyes, Book I)

5. FULFILLMENT OF DUTY OR LAWFUL EXERCISE OF RIGHT OR OFFICE (PAR. 5)

ELEMENTS:

• Accused acted in the performance of duty or in the lawful exercise of a right or office; and
• Injury caused or offense committed is the necessary consequence of the due performance of the duty, or the lawful exercise of such right or office.

No felony is committed:

• When the act or omission is not punishable by the RPC; or
• When the act is covered by any of the justifying circumstances enumerated in Art. 11, RPC.

Requisites for acquittal from a Libel charge:

• It appears that the matter charged as libelous is TRUE (for situations 1 and 2 above); and
• It was published with good motives and for a justifiable end. (for situation 1 only).

Fulfillment of duty

If the custodian, who already had reasons to fear that the prisoner would be able to elude him, fired his gun, he is not liable for his death because of the justifying circumstance of performance of duty. (Valcorza v. People, G.R. No. L-28129)

However, if the prisoner who escaped was fired upon by the guard and he was hit on the thigh at a distance of four meters, there was no absolute necessity to fire again resulting in the death of the prisoner as he could then easily be captured. In such case, the custodian is only entitled to privileged mitigating circumstance of incomplete performance of duty. (2000 Bar Exam)

No violence or unnecessary force shall be used in making an arrest and the person arrested shall not be subject to any greater restraint than what is necessary for his detention. (Sec. 2, Rule 113, Rules of Criminal Procedure)

Lawful exercise of right or office

Under the Civil Code (Art. 429), the owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

If in protecting his possession of the property he injured (not seriously) the one trying to get it from him, he is justified under this paragraph. (Reyes, Book I)

Under this paragraph (lawful exercise of a right), it is not necessary that there be unlawful aggression against the person charged with the protection of the property. If there is unlawful aggression against the person charged with the protection of the property, then par. 1 of Art. 11 applies, it being a defense of right to property. (Id)

6. OBEDIENCE TO AN ORDER ISSUED FOR SOME LAWFUL PURPOSE (PAR. 6)

ELEMENTS:

• An order has been issued by a superior;

The Japanese imperial army during the occupation cannot be considered as superior officer within the concept of justifying circumstance of obedience to an order. (People v. Manayao, G.R. No. L-822)

• The order has a lawful purpose and not patently illegal; and

One who prepared a falsified document with full knowledge of its falsity is not excused even if he merely acted in obedience to the instruction of his superior because the instruction was not for a lawful purpose. (People vs. Barroga, 54 Phil. 247)

A soldier who, in obedience to the order of his sergeant, tortured to death the deceased for bringing a kind of fish different from that he had been asked to furnish a constabulary detachment, is criminally liable. Obedience to an order of a superior is justified only when the order is for some lawful purpose. The order to torture the deceased was illegal, and the accused was not bound to obey it. (People vs. Margen, et al., 85 Phil. 839)

• Means used by subordinate to carry out said order is lawful.

Order to torture a criminal suspect is not lawful, and thus, obedience to such order is not a justifying circumstance. (People v. Margen, G.R. No. L-2681)

A police officer should only use force, which is reasonably necessary in apprehending an accused by virtue of warrant issued by competent court. (Campanilla, Criminal Law Reviewer Volume I)

General Rule: A subordinate cannot invoke this circumstance when order is patently illegal.

Exception: When there is compulsion of an irresistible force, or under impulse of uncontrollable fear.

When the accused acted upon orders of superior officers, which he, as military subordinate, could not question, and obeyed the orders in good faith, without being aware of their illegality, without any fault or negligence on his part, he is not liable because he had no criminal intent and he was not negligent. (People vs. Beronilla, G.R. No. L-4445).

EXEMPTING CIRCUMSTANCES

REQUISITES:

• Existence of an uncontrollable fear;
• The fear must be real and imminent; and
• The fear of an injury is greater than or at least equal to that committed.

Circumstances of justification or exemption which may give place to mitigation:

• Self-defense;
• Defense of Relatives;
• Defense of Strangers;
• State of Necessity;
• Performance of Duty;
• Obedience to Order of Superior;
• Minority: 15 and over until 18 years of age;
• Causing injury by mere Accident; and
• Uncontrollable Fear.

Art. 12, pars. 1 and 2 cannot give place to mitigation, because the mental condition of a person is indivisible; there is no middle ground between sanity and insanity, between presence and absence of intelligence. (Decs. of Sup. Ct. of Spain of Dec. 19, 1901 and Oct. 3, 1884)

Incomplete Justifying Circumstances

Just Cause

• If there is just cause for preventing a meeting, the person doing so is not liable under this article.
• Just cause must appear immediately and must not be one assumed and proven later by an investigation.

REQUISITES:

• A grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters or relatives by affinity within the same degree; and
• Felony is committed in immediate vindication of such grave offense.

Exercise of a right or fulfillment of duty is not a proper source of passion or obfuscation

Where the accused was making a disturbance on a public street and a policeman came to arrest him, the anger and indignation of the accused resulting from the arrest cannot be considered passion or obfuscation, because the policeman was performing a lawful act. (Reyes, Book I citing U.S. vs. Taylor, 6 Phil. 162)

May lawfully arise from causes existing only in the honest belief of the offender

Thus, the belief of the defendant that the deceased had caused his dismissal from his employment is sufficient to confuse his reason and impel him to commit the crime. (U.S. vs. Ferrer, 1 Phil. 56, 62)

Offended party

• May be a private person
• A private person who comes to the rescue of an authority or his agent enjoys the privileges of the latter

Non-deliberate attack or employment of force

• If an attack is not deliberate, it is only resistance or serious disobedience.
• A non-deliberate attack shows a lack of intent to ignore, disregard, or defy authority.

NOTE: Neither circumstance automatically means that no crime was committed.

• Lack of knowledge that the person arresting the accused is a peace officer may preclude direct assault, but liability for another offense depends on the acts proved (Revised Penal Code, Arts. 148 and 151).
• Resistance to a person in authority or an agent who exceeds lawful authority is justified only to the extent permitted by the applicable requisites of a justifying circumstance (Revised Penal Code, Art. 11).

Offended party must not give provocation

A condition sine qua non of this circumstance, is that the offended party "has not given provocation" to the offender. When it is the offended party who has provoked the incident, he loses his right to the respect and consideration due him in his own house. (People vs. Ambis, G.R. No. 46298)

ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH

To take advantage of superior strength means to deliberately use excessive force that is out of proportion to the means for self- defense available to the person attacked. (People v. Lobrigas, G.R. No. 147649)

Superior strength is not taken advantage of when:

• One attacks another with passion and obfuscation;
• A quarrel arose unexpectedly and the fatal blow was struck at a time when the aggressor and his victim were engaged against each other as man to man; and
• An attack on the victim was made alternately.

May exist even if the attack is face to face

Where it appears that the attack was not preceded by a dispute and the offended party was unable to prepare himself for his defense. (U.S. vs. Cornejo, 28 Phil. 457, 461)