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People v. Bustinera Case Digest People v. Luisito Bustinera G. R. No. 148233.

June 8, 2004 FACTS: ESC Transport hired Luisito Bustinera as a taxi driver. It was agreed that appellant would drive the taxi from 6:00 a.m. to 11:00 p.m., after which he would return it to ESC Transport's garage and remit the boundary fee in the amount of P780.00 per day. On December 25,1996, appellant admittedly reported for work and drove the taxi, but he did not return it on the same day as he was supposed to. The owner of ESC reported the taxi stolen. On January 9, 1997, Bustinera's wife went to ESC Transport and revealed that the taxi had been abandoned. ESC was able to recovered. The trial court found him guilty beyond reasonable doubt of qualified theft. HELD: Bustinera was convicted of qualified theft under Article 310 of the Revised Penal Code, as amended for the unlawful taking of a motor vehicle. However, Article 310 has been modified, with respect to certain vehicles, by Republic Act No. 6539, as amended, otherwise known as "AN ACT PREVENTING AND PENALIZING CARNAPPING. "When statutes are in pari materia or when they relate to the same person or thing, or to the same class of persons or things, or cover the same specific or particular subject matter, or have the same purpose or object, the rule dictates that they should be construed together. The elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft is qualified when any of the following circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fish pond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. On the other hand, Section 2 of Republic Act No.6539, as amended defines "car napping" as "the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things." The elements of car napping are thus: (1) the taking of a motor vehicle which belongs to another; (2) the taking is without the consent of the owner or by means of violence against or intimidation of persons or by using force upon things; and (3) the taking is done with intent to gain. Car napping is essentially the robbery or theft of a motorized vehicle, the concept of unlawful taking in theft, robbery and car napping being the same. From the foregoing, since appellant is being accused of the unlawful taking of a Daewoo sedan, it is the anti-car napping law and not the provisions of qualified theft which would apply

EVANGELINE LADONGA VS. PEOPLE OF THE PHILIPPINES G.R. No. 141066. February 17, 2005 Facts: In 1989, spouses Adronico and Evangeline Ladonga became Alfredo Oculams regular customers in his pawnshop business. Sometime in May 1990, the Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by United Coconut Planters Bank (UCPB) Check No. 284743, post dated to July 7, 1990 issued by Adronico; sometime in the last week of April 1990 and during the first week of May 1990, the Ladonga spouses obtained an additional loan of P12,730.00, guaranteed by UCPB Check No. 284744, post dated to July 26, 1990 issued by Adronico; between May and June 1990, the Ladonga spouses obtained a third loan in the amount of P8,496.55, guaranteed by UCPB Check No. 106136, post dated to July 22, 1990 issued by Adronico; the three checks bounced upon presentment for the reason CLOSED ACCOUNT; when the Ladonga spouses failed to redeem the check, despite repeated demands, he filed a criminal complaint against them. While admitting that the checks issued by Adronico bounced because there was no sufficient deposit or the account was closed, the Ladonga spouses claimed that the checks were issued only to guarantee the obligation, with an agreement that Oculam should not encash the checks when they mature; and, that petitioner is not a signatory of the checks and had no participation in the issuance thereof. The RTC rendered a joint decision finding the Ladonga spouses guilty beyond reasonable doubt of violating B.P. Blg. 22. Petitioner brought the case to the Court of Appeals. The Court of Appeals affirmed the conviction of petitioner. Issue: Whether or not the petitioner who was not the drawer or issuer of the three checks that bounced but her co-accused husband under the latters account could be held liable for violations of Batas Pambansa Bilang 22 as conspirator. Held: The conviction must be set aside. Article 8 of the RPC provides that a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To be held guilty as a co-principal by reason of conspiracy, the accused must be shown to have performed an overt act in pursuance or furtherance of the complicity. The overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan. In the present case, the prosecution failed to prove that petitioner performed any overt act in furtherance of the alleged conspiracy. Apparently, the only semblance of overt act that may be attributed to petitioner is that she was present when the first check was issued. However, this inference cannot be stretched to mean concurrence with the criminal design. Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. Conspiracy transcends mere companionship and mere presence at the scene of the crime does not in itself amount to conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose

THIS CASE IS WITH REGARD TO ART. 11 (1), AND ART 14 (16) OF THE R.P.C Case of People of the R.P. vs. Genosa G.R.No. 135981 15January2004 FACTS OF THE CASE: That Marivic Genosa, the Appellant on the 15November1995, attacked and wounded his husband, which ultimately led to his death. According to the appellant she did not provoke her husband when she got home that night it was her husband who began the provocation. The Appellant said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, The Appelant had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995. The Appellant testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. The Apellant said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu Rubillos. The Appellant after being interviewed by specialists, has been shown to be suffering from Battered Woman Syndrome. The appellant with a plea of self defense admitted the killing of her husband, she was then found guilty of Parricide, with the aggravating circumstance of treachery, for the husband was attacked while asleep. ISSUES OF THE CASE: Can Marivic Genosa be granted the Justifying circumstance of Self-defense, and can she be held liable for the aggravating circumstance of treachery? No, Since self- defense since the existence of Battered woman syndrome, which the appellant has been shown to be suffering in the relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense. In the present case, however, according to the testimony of the appellant there was a sufficient time interval between the unlawful aggression of the husband and her fatal attack upon him. She had already been able to withdraw from his violent

behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. Without continuous aggression there can be no self-defense. And absence of aggression does not warrant complete or incomplete self-defense. No, There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make. The circumstances must be shown as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant. In the present case, however it was not conclusively shown, that the appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, the doubt should be resolved in her favor. HELD: The conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum. ADDENDUM: When can BWS (Battered Woman Syndrome) as self defense be appreciated? Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.' Still, impending danger (based on the

conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger. Considering such circumstances and the existence of BWS, self-defense may be appreciated.

Balunuecov. CA and People (G.R. No. 126968) Facts: On May 2, 1982 at around 6:00 oclock in the evening Amelia Iguico saw accused Reynaldo, his father Juanito and brothers Ricardo and Ramon, all surnamed Balunueco, and one Armando Flores chasing her brother-in-law Servando Iguico. With the five (5) individuals in hot pursuit, Servando scampered into the safety of Amelias house. Meanwhile Senando went out of the house fully unaware of the commotion going on outside. Upon seeing Senando, Reynaldo turned his attention on him and gave chase. Senando instinctively fled towards the fields but Reynaldo, Ricardo, and Armando cornered him and ganged up on him. To shield him from further violence, Amelia put her arms around her husband but it was not enough to detract Ricardo from his murderous frenzy. Amelia was also hit on the leg. In his defense, accused Ricardo invoke defense of relatives. He testified that at that time he was fetching water he heard somebody shout. When he hurried to the place, he saw his brother Ramon embracing Senando who was continuously hacking Reynaldo. Thereafter, Senando shoved Ramon to the ground and as if further enraged by the intrusion, he turned his bolo on the fallen Ramon. Ricardo screamed, "tama na yan, mga kapatid ko yan." But the assailant would not be pacified as he hacked Ramon on the chest. At this point, Servando, the brother of Senando, threw an axe at him but Reynaldo picked it up and smashed Senando with it. The trial court found the accused guilty of homicide and frustrated homicide. According to the trial court, the denial of Ricardo was self-serving and calculated to extricate himself from the predicament he was in. Further, the trial court added that the wounds allegedly received by Ricardo in the hands of the victim, Senando Iguico, if at all there were any, did not prove that Senando was the aggressor for the wounds were inflicted while Senando was in the act of defending himself from the aggression of Ricardo and his co-conspirators. The Court of Appeals sustained the conviction of accused Ricardo with modification that his conviction for the wounding of Amelia Iguico, should be for attempted homicide only. Issue: Whether or not there was a valid defense of relatives? Decision: Petitioner invokes the justifying circumstance of defense of relatives under Art. 11, par. (2), of The Revised Penal Code. The essential elements of this justifying circumstance are the following: (a) unlawful aggression; (b) reasonable necessity of the means employed to prevent or repel it; and, (c) in case the provocation was given by the person attacked, the one making the defense had no part therein.

Of the three (3) requisites of defense of relatives, unlawful aggression is a condition sine qua non, for without it any defense is not possible or justified. In order to consider that an 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 exemption from liability on the ground that it was committed in self-defense or defense of a relative. It has always been so recognized in the decisions of the courts, in accordance with the provisions of the Penal Code. Having admitted the killing of the victim, petitioner has the burden of proving these elements by clear and convincing evidence. He must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if the prosecution evidence is weak it cannot be disbelieved if the accused has admitted the killing. In the case at bar, petitioner Ricardo utterly failed to adduce sufficient proof of the existence of a positively strong act of real aggression on the part of the deceased Senando. With the exception of his self-serving allegations, there is nothing on record that would justify his killing of Senando.

People vs. Toring, et al 191 SCRA 38 Facts: A benefit dance was held in one sitio in Lapu lapu City forthe last canvassing of votes for the candidates for princesses, attended by the entire family of one of the candidates. Also present were members of the kwaknit gang, headed by Toring, noted for their bird-like way of dancing and their propensity for drunkenness and provoking trouble. Samuel, the father of the declared winner, while answering the callof nature, was approached by Toring and two others and was stabbed from behind by Toring using a knife handed to him by a companion. Samuel died of stab wound he sustained on the right side of his abdomen. An information for MURDER was filed against Toring. The lower court rendered a decision discrediting Toring's claim that the killing of Samuel was justified because it was done in defense of a stranger. While Toring testified that Samuel was aiming his shotgun at the chest of Ely Amyon (Amion), prosecution witness Joel Escobia claimed that he was at the receiving end of Samuel's thrusts with the butt of his shotgun. To the court, such discrepancy is fatal to the defense because in appreciating the justifying circumstance of defense of a stranger, the court must know "with definiteness the identity of the stranger defended by the accused. Upon appeal, Toring seeks his exoneration by contending that his assault on Samuel was justified because he acted in defense of his first cousin, Joel Escobia is the first cousin of Toring their fathers being brothers, although no explanation appears on record why they have different surnames. At any rate, this allegation on relationship was not rebutted by the prosecution. Escobia attested that as he was about to dance with a girl, Samuel stopped him, pointed his shotgun at him, took a bullet from his jacket pocket, showed it to Escobia. Samuel pointed the shotgun at his chin and told him to eat the bullet. Issue: Whether the act of Toring in stabbing Samuel was justified for being done in defense of his relative, Joel Escobia. Held: NO. SC ruled that there was no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression and that prosecution failed to prove that Joel testified to favor Toring. However, the presence of unlawful aggression on the part of the victim and the lack of proof of provocation on the part of Toring notwithstanding, full credence cannot be given, to Toring's claim of defense of a relative. Toring himself admitted in court that in 1979, he was shot with a .22 caliber revolver by Edgar Augusto, Samuel's brother. It cannot be said, therefore, that in attacking Samuel, Toring was impelled by pure compassion or beneficence or the lawful desire to avenge the immediate wrong inflicted on his cousin. Rather, he was motivated by revenge, resentment or evil motive because of a "running feud" between the Augusto and the Toring brothers. Indeed, vendetta appears to have driven both camps to commit unlawful acts against each other.

FACTS Crispulo Dijan is appealing the decision convicting him of the Murder of Alvaro Hilario on 11 April 1998. The group of Dijan, Romualdo Paglinawan and Oliver Lizardo, who were passing by, confronted Hilario who were giving them a bad stare. Hilario was accompanied by Roderick Silvestre who apologized to the group that it was normal for Hilario to gaze that way. According to group of Hilario, the accused group attacked them first. Dijans group argues that after they left, Hilario had attacked Paglinawan with a knife. Dijan was able to wrest an ice pick brought out by Silvestre and used it to stab Hilario, who died therefrom. ISSUES Whether or not Dijans acts that lead to the death of Hilario were in defense of a stranger, hence a justifying circumstance HELD No. Decision of the RTC is affirmed but modified to Homicide. RATIO
The accused-appellant cannot raise defense of a stranger as a justifying circumstance since the number and nature of wounds sustained by the victim would always be a significant factor in the consideration of the court of a defense plea. The number of victims wounds as recorded is 14 which puts doubt on the reasonable necessity of the means employed. The RTC modified its earlier ruling and unqualified treachery as it was not proven through evidence.

Ty vs. People
FACTS: Ty issued 7 checks in payment for hospital bills of her mother who was confined at the Manila Doctors Hospital which were all dishonored as the bank account was closed by the accused. She was sued by the hospital and in her defense she raised that she issued the checks because of an uncontrollable fear of a greater injury. She alleged that because the hospital bills were unpaid during the confinement, the hospital deprived her mother of the facilities and suspended medical treatment, which put a psychological strain on her mother who contemplated suicide if not discharged. Fearing the worst, she issued the checks to effect her mothers immediate discharge. ISSUE: Whether or not the justifying circumstance of an uncontrollable fear of a greater injury actually existed in this case. HELD: No. The court affirmed the CA judgment. RATIO: According to the court, the existence of the threat was speculative. Furthermore, the injury feared was not real and imminent. Mere threat of a future injury is not enough and that the threat should be based on a real, imminent or reasonable fear for ones life or limb. While the threat of suicide may be greater than the act committed by Ty, said threat is remote, fanciful and speculative. A person invoking this defense should show that he is acting not only without will but against his will, as he is left with no opportunity to escape. In other words, the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her a mere instrument without will, moved exclusively by the hospitals threats or demands. Clearly there are other means of preventing the same.

Crim 1- Lawful Performance of Duty Pomoy vs. People September 29, 2004 Diane Singayan Group 2 Petitioner: Pomoy Respondent: People of the Philippines Ponente: Panganiban, J. Nature: petition for review on certiorari of the decision and resolution of the CA FACTS: Pomoy, a police sergeant, went towards the door of the jail where Balbon was detained and directed the latter to come out, purportedly for tactical interrogation at the investigation room. At that time, Pomoy had a .45 caliber pistol tucked in a holster which was hanging by the side of his belt. The gun was fully embedded in its holster, with only the handle of the gun protruding therefrom. As Pomoy was already holding the doorknob of the investigation room and was about to open and enter it, all of a sudden he saw Balboa approach him and take hold or grab the handle of his gun. The two grappled for the possession of the gun. Thereafter, two gunshots were heard. When the source of the shots was verified, Pomoy was seen still holding a .45 caliber pistol, facing Balboa, who was lying in a pool of blood. Balboa was a suspect in a robbery case filed by Pomoy. ISSUE: Whether or not the shooting of Balboa was the result of an accident. HELD: Yes. At the time of the incident, Pomoy was a member- specifically, one of the investigators- of the PNP stationed at the lloilo Provincial Mobile Force Company. It was in the lawful performance of his duties as investigating officer that, under the instructions of his superior, he fetched the victim from the latters cell for a routine investigation. It was in the lawful performance of his duty as a law enforcer that Pomoy tried to defend his possession of the weapon when the victim suddenly tried to remove it from his holster. As an enforcer of the law, Pomoy was dutybound to prevent the snatching of his service weapon by anyone, especially by a detained person under his custody. The participation of Pomoy in the victims death, if any, is limited only to acts committed in the course of the lawful performance of his duties as an onforcer of the law. The removal of the gun from its holster, the release of the safety lock and the firing of two successive shots- all of which led to the death of the victim- were sufficiently demonstrated to have been consequences of circumstances beyond the control of Pomoy.

Petition granted, assailed decision reversed. Petitioner acquitted.

Baxinela vs. People Facts: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 arm and ask why he did have a gun with him. Upon suspicion that the man is taking 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 unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression was reasonable; and (3) that there was lack of sufficient provocation on 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 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.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 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. 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. The 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.

People vs. Narvaez, 121 SCRA 389 (1983) FACTS: Mamerto Narvaez has been convicted of murder (qualified by treachery) of David Fleischer and Flaviano Rubia. On August 22, 1968, Narvaez shot Fleischer and Rubia during the time the two were constructing a fence that would prevent Narvaez from getting into his house and rice mill. The defendant was taking a nap when he heard sounds of construction and found fence being made. He addressed the group and asked them to stop destroying his house and asking if they could talk things over. Fleischer responded with "No, gadamit, proceed, go ahead." Defendant lost his "equilibrium," and shot Fleisher with his shotgun. He also shot Rubia who was running towards the jeep where the deceased's gun was placed. Prior to the shooting, Fleischer and Co. (the company of Fleischer's family) was involved in a legal battle with the defendant and other land settlers of Cotabato over certain pieces of property. At the time of the shooting, the civil case was still pending for annulment (settlers wanted granting of property to Fleisher and Co. to be annulled). At time of the shooting, defendant had leased his property from Fleisher (though case pending and ownership uncertain) to avoid trouble. On June 25, defendant received letter terminating contract because he allegedly didn't pay rent. He was given 6 months to remove his house from the land. Shooting was barely 2 months after letter. Defendant claims he killed in defense of his person and property. CFI ruled that Narvaez was guilty. Aggravating circumstances of evident premeditation offset by the mitigating circumstance of voluntary surrender. For both murders, CFI sentenced him to reclusion perpetua, to indemnify the heirs, and to pay for moral damages. ISSUES: 1. Whether or not CFI erred in convicting defendant-appellant despite the fact that he acted in defense of his person. No. The courts concurred that the fencing and chiselling of the walls of the house of the defendant was indeed a form of aggression on the part of the victim. However, this aggression was not done on the person of the victim but rather on his rights to property. On the first issue, the courts did not err. However, in consideration of the violation of property rights, the courts referred to Art. 30 of the civil code recognizing the right of owners to close and fence their land. Although is not in dispute, the victim was not in the position to subscribe to the article because his ownership of the land being awarded by the government was still pending, therefore putting ownership into question. It is accepted that the victim was the original aggressor. 2. WON the court erred in convicting defendant-appellant although he acted in defence of his rights.

Yes. However, the argument of the justifying circumstance of self-defense is applicable only if the 3 requirements are fulfilled. Art. 11(1) RPC enumerates these requisites: Unlawful aggression. In the case at bar, there was unlawful aggression towards appellant's property rights. Fleisher had given Narvaez 6 months and he should have left him in peace before time was up, instead of chiseling Narvaez's house and putting up fence. Art. 536 of the Civil Code also provides that possession may not be acquired through force or intimidation; while Art. 539 provides that every possessor has the right to be respected in his possession Reasonable necessity of means employed to prevent or repel attack. In the case, killing was disproportionate to the attack. Lack of sufficient provocation on part of person defending himself. Here, there was no provocation at all since he was asleep Since not all requisites present, defendant is credited with the special mitigating circumstance of incomplete defense, pursuant to Art. 13(6) RPC. These mitigating circumstances are: voluntary surrender and passion and obfuscation (read p. 405 explanation) Crime is homicide (2 counts) not murder because treachery is not applicable on account of provocation by the deceased. Also, assault was not deliberately chosen with view to kill since slayer acted instantaneously. There was also no direct evidence of planning or preparation to kill. Art. 249 RPC: Penalty for homicide is reclusion temporal. However, due to mitigating circumstances and incomplete defense, it can be lowered three degrees (Art. 64) to arrestomayor. 3. WON he should be liable for subsidiary imprisonment since he is unable to pay the civil indemnity due to the offended party. No. He is not liable to be subsidiarily imprisoned for nonpayment of civil indemnity. RA 5465 made the provisions of Art. 39 applicable to fines only and not to reparation of damage caused, indemnification of consequential damages and costs of proceedings. Although it was enacted only after its conviction, considering that RA 5465 is favorable to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Art. 22 of the RPC. Judgment: Defendant guilty of homicide but w/ mitigating circumstances and extenuating circumstance of incomplete self defense. Penalty is 4 months arresto mayor and to indemnify each group of heirs 4,000 w/o subsidiary imprisonment and w/o award for moral damages. Appellant has already been detained 14 years so his immediate release is ordered. Gutierrez, dissenting. Defense of property can only be invoked when coupled with form of attack on person defending property. In the case at bar, this was not so. Appellant should then be sentenced to prision mayor. However, since he has served more than that, he should be released.

Soplente v. People (G.R. No. 152715) Facts: The cousins, Rogelio and Nicanor, watched the amateur singing contest being held near the Sta. Cruz Chapel. While engrossed with the singing contest, they were approached by two persons from the group of Leyson who then tapped Nicanors shoulder. They insisted on bringing Nicanor along with them so Nicanor called for Rogelios help. The latter immediately intervened to stop the two from harassing Nicanor. At about past eleven oclock in the evening (11:00 p.m.), before the conclusion of the amateur singing contest, Rogelio and Nicanor decided to go home. At past midnight, Bukay (their cousins wife) asked Rogelio and Nicanor to accompany her in looking for her children who had watched the singing contest. They obliged but before they had gone about three hundred meters, Nicanor separated from them to buy cigarettes from a nearby store. Rogelio and Bukay went onwards but at a distance of about fifty meters from the stage, Rogelio stopped and Bukay proceeded alone to look for her children. A few minutes later, Bukay appeared with the children and they all headed home. While on the way home, Rogelio suddenly found himself surrounded by around ten persons led by Leyson. He shouted at Nicanor to run and the latter immediately scampered away. Leyson drew his gun and fired at Rogelio but the latter was able to parry it by tapping the base of Leysons hand holding the gun. Forthwith, Rogelio stabbed Leyson once. He was kicked by Notarte immediately after he stabbed Leyson. Rogelio also stabbed Notarte. Rogelio managed to escape after that and he sought refuge in the house of Susing (their cousin). Before dawn, a policeman arrived at Susings house and Rogelio voluntarily gave himself up. The knife he used was also turned over to the police. He was brought to the police substation at Lagao. Issue: Whether or not our laws on self-defense are suppose to approximate the natural human responses to danger. Decision: At the commencement of the attack, Rogelio could not have been obliged to view Notarte, or any other member of the posse for that matter, as a less menacing threat than Leyson. We have to understand that these events occurred spontaneously in a matter of seconds or even simultaneously. Rogelio bore no superhuman power to slow down time or to prevent the events from unfolding at virtual warp speed, to be able to assess with measured certainty the appropriate commensurate response due to each of his aggressors. Even those schooled in the legal doctrines of self-defense would, under those dire circumstances, be barely able to discern the legally defensible response and immediately employ the same. Our laws on self-defense are supposed to approximate the natural human responses to danger, and not serve as our inconvenient rulebook based on which we should acclimatize our impulses in the face of peril. It would be wrong to compel Rogelio to have discerned the appropriate calibrated response to Notartes kicking when he himself was staring at the evil eye of danger. That would be a gargantuan demand even for the coolest under pressure.

Art. 13: Mitigating Circumstances Incomplete Justifying or Exempting Circumstances People v. CA and Tangan (G.R. No. 103613) Facts: On December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas Boulevard heading south and Generoso Miranda was driving his car in the same direction with his uncle, Manuel Miranda. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in Generoso's way, causing him to swerve to the right and cut Tangan's path. Tangan blew his horn several times. Generoso, slowed down to let Tangan pass. Tangan accelerated and overtook Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or five times to overtake on the right lane but Tangan kept blocking his lane. When Tangan slowed down to make a U-turn, Generoso passed him, pulled over and got out of the car with his uncle. Tangan also stopped his car and got out. Generoso and Tangan then exchanged expletives. Then Tangan went to his car and got his .38 caliber handgun on the front seat. According to the prosecution witnesses, Mary Ann Borromeo, Rosalia Cruz and Manuel Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at a distance of about a meter. The shot hit the stomach of Generoso Miranda causing the latter to fall. Manuel Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The man in T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it. On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed that after the gun was taken by the accused from inside his car, the Mirandas started to grapple for possession of the gun and during the grappling, and while the two Mirandas were trying to wrest away the gun from the accused, they fell down at the back of the car of the accused. The accused lost the possession of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it exploded hitting Generoso Miranda. Tangan ran away while Generoso lay on the ground bloodied. Manuel looked for the gun and ran after Tangan. Tangan found a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that Tangan had just shot his nephew. Manuel went back to where Generoso lay and there found two ladies, Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the way. Tangan was charged with the crime of murder with the use of an unlicensed firearm. However, the information was amended to homicide with the use of a licensed firearm, and he was separately charged with illegal possession of unlicensed firearm. Tangan entered a plea of not guilty in the homicide case, but moved to quash the information for illegal possession of unlicensed firearm on various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with this Court. On November 5, 1987, said petition was dismissed and the joint trial of the two cases was ordered.

After trial, the lower court acquitted Tangan of illegal possession of firearm, but convicted him of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were appreciated in his favor; Tangan was released from detention after the promulgation of judgment and was allowed bail in the homicide case. Tangan appealed to the Court of Appeals, which affirmed the judgment of the trial court but increased the award of civil indemnity to P50,000.00. His subsequent motion for reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court of Appeals. The Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, filed a petition for certiorari under Rule 65, naming as respondents the Court of Appeals and Tangan, where it prayed that the appellate court's judgment be modified by convicting accused-appellant of homicide without appreciating in his favor any mitigating circumstance. Issue: Whether or not Tangan acted in incomplete self-defense? Decision: Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance; hence, the burden of proving the crime charged in the information is not shifted to the accused. In order that it may be successfully appreciated, however, it is necessary that a majority of the requirements of self-defense be present, particularly the requisite of unlawful aggression on the part of the victim. Unlawful aggression by itself or in combination with either of the other two requisite suffices to establish incomplete self-defense. Absent the unlawful aggression, there can never be self-defense, complete or incomplete, because if there is nothing to prevent or repel, the other two requisites of defense will have no basis. The element of unlawful aggression in self-defense must not come from the person defending himself but from the victim. A mere threatening or intimidating attitude is not sufficient. The exchange of insulting words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be considered as unlawful aggression, except when coupled with physical assault. There being no lawful aggression on the part of either antagonists, the claim of incomplete self-defense falls.