1
FIRST DIVISION
[G.R. NO. 149152 : February 2, 2007]
RUFINO S. MAMANGUN, Petitioner, v. PEOPLE OF
THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this Petition for Review under Rule 45 of the Rules
of Court, petitioner Rufino Mamangun y Silverio seeks
the reversal of the Decision1 dated January 19, 2001
(promulgated on February 13, 2001) of the
Sandiganbayan in its Criminal Case No. 21131,
convicting him of the crime of Homicide.
The factual backdrop:
On September 12, 1994, herein petitioner, then a
police officer, was charged before the Sandiganbayan
with the crime of Murder, allegedly committed, per the
indicting Information,2 docketed as Criminal Case No.
21131, as follows:
That on or about the 31st day of July 1992, in the
Municipality of Meycauyan, (sic) Province of Bulacan,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused Rufino S.
Mamangun, a public officer, being then a Police
Officer (PO2), duly appointed as such and acting in
relation to his office, armed with a gun, with intent to
kill, did then and there willfully, unlawfully and
feloniously, with treachery, evident premeditation and
abuse of superior strength, attack, assault and shoot
one Gener M. Contreras with the said gun, hitting the
latter on his body, thereby inflicting (sic) him serious
physical injuries which directly cause (sic) his death.
CONTRARY TO LAW.
On arraignment, petitioner, as accused below, duly
assisted by a counsel de oficio, entered a plea of "Not
Guilty."
In the ensuing trial, the prosecution presented in
evidence the testimonies of Crisanto Ayson (Ayson),
an alleged eyewitness, and Dr. Benito Caballero, then
the designated Medico-Legal Officer of Bulacan who
performed an autopsy on the cadaver of the victim.
For its part, the defense adduced in evidence the
testimonies of the accused himself, Rufino
Mamangun, his co-policemen at the Philippine
National Police (PNP), namely, PO2 Carlito Cruz,
PO4 Hobert O. Diaz and Police Investigator SPO-1
Hernando B. Banez, all assigned at the Meycauayan
Police Station; and those of Lorenzo S. Abacan and
Rogelio Ingco, son and son-in-law, respectively, of
Antonio Abacan, owner of the house on which rooftop
the shooting of the victim took place.
It is not disputed that on July 31, 1992, at about 8:00
in the evening, in Brgy. Calvario, Meycauayan,
Bulacan a certain Liberty Contreras was heard
shouting, "Magnanakaw Magnanakaw." Several
residents responded and thereupon chased the
suspect who entered the yard of Antonio Abacan and
proceeded to the rooftop of Abacan's house.
At about 9:00 o'clock that same evening, the desk
officer of the Meycauayan PNP Police Station, upon
receiving a telephone call that a robbery-holdup was
in progress in Brgy. Calvario, immediately contacted
and dispatched to the scene the crew of Patrol Car
No. 601 composed of Team Leader SPO1 Andres
Legaspi, with PO2 Eugenio Aminas and herein
petitioner PO2 Rufino S. Mamangun; and Patrol Car
No. 602 composed of Team Leader PO3 Sandiego
San Gabriel, with PO2 Carlito Cruz and PO2 Hobert
Diaz. With the permission of Abacan, petitioner
Mamangun, PO2 Diaz and PO2 Cruz went to the
rooftop of the house whereat the suspect was
allegedly taking refuge.
The three policemen, i.e., petitioner, Diaz and Cruz,
each armed with a drawn handgun, searched the
rooftop. There, they saw a man whom they thought
was the robbery suspect. At that instance, petitioner
Mamangun, who was walking ahead of the group,
fired his handgun once, hitting the man. The man
turned out to be Gener Contreras (Contreras) who
was not the robbery suspect.
Contreras died from the gunshot wound. The autopsy
conducted by Dr. Benito B. Caballero yielded the
following findings:
The cause of death was "Shock due to massive
external and internal hemorrhage due to multiple
gunshot wounds in the left arm side of the thorax,
penetrating the left lung and vertebral column." There
were several wounds caused by one (1) bullet.
As shown on the sketch of human body attached to
the Certificate of Death, and as testified on by Dr.
Caballero, the bullet entered through the "lower third
of the left arm, left side of the thorax and it penetrated
the left lung and vertebral column and that is where
the slug was found." From a layman's appreciation of
the sketch, the bullet entered the outer, upper left arm
of the victim, exited through the inner side of the said
upper left arm, a little lower than the left armpit and
the slug lodging on the victim's back where it was
recovered at the vertebral column.3
From the foregoing admitted or undisputed facts, the
prosecution and the defense presented conflicting
versions as to how the fatal shooting of Contreras by
petitioner Mamangun actually happened.
According to Ayson, the lone eyewitness for the
prosecution, he accompanied the three policemen
(Mamangun, Diaz and Cruz) to the rooftop of
Abacan's house. He was following petitioner
Mamangun who was ahead of the group. They
passed through the second-floor door of the house to
the rooftop. The roof was lighted by an incandescent
bulb from an adjacent house. He was beside
Mamangun when they saw, some four to five arms-
length away, a man whom he (witness) recognized as
Gener Contreras. Mamangun pointed his .45 cal.
pistol at the man, who instantly exclaimed, "Hindi ako,
hindi ako!," to which Mamangun replied, "Anong hindi
ako?" Before he (Ayson) could say anything,
Mamangun fired his gun, hitting the man who turned
out to be Contreras. He (witness) approached the
victim who was then lying on his left side
unconscious. He brought down the victim and they
1

rushed him to the hospital where he died at about
10:00 o'clock that same evening.
The defense has its own account of what purportedly
actually transpired.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
PO2 Mamangun, along with PO2 Cruz and PO2Diaz,
denied the presence of Ayson at the rooftop during
the shooting incident. Corroborating one another, the
three testified that they were the only ones at the
scene of the shooting, and that it was dark. They
claimed that each of them, with Mamangun on the
lead, went on separate directions around a water
tank. As they met each other at the other side of the
tank, PO2 Cruz pointed to a person crouching at the
edge of the roof of the garage. Thinking that the
person was the suspect they were looking for,
Mamangun chased said person. They announced that
they were police officers but the person continued to
run in a crouching position until Mamangun caught up
with him and shouted, "Pulis. Tigil," whereupon the
person suddenly stopped, turned around, faced
Mamangun, and raised a stainless steel pipe towards
the latter's head but Mamangun was able to evade
the attack. This prompted Mamangun to shoot the
person on the left arm. All three claimed that it was
only at this point that PO2 Cruz and Diaz approached
Contreras who told them, "Hindi ako. Hindi ako."
Mamangun went near Contreras and asked, "Why did
you go to the rooftop? You know there are policemen
here." Contreras was thereafter brought to the
hospital where he died. After the shooting incident,
Mamangun reported the same to the desk officer, POI
Filomeno de Luna, who advised him to remain in the
police station. De Luna directed Police Investigator
Hernando Banez to investigate the incident. That
same evening, Investigator Banez went to the place
where the shooting happened. Banez allegedly found
a steel pipe about three (3) feet long on the
depressed portion of the roof.
On January 19, 2001, after due proceedings, the
Sandiganbayan came out with its decision4 finding
the petitioner guilty beyond reasonable doubt of only
the crime of Homicide. In so finding, the
Sandiganbayan did not appreciate the presence of
the aggravating circumstances of treachery, evident
premeditation and abuse of superior strength to
qualify the killing to Murder. But even as the said court
rejected the petitioner's claim that the shooting was
justified by self-defense, it nonetheless ruled that the
crime of Homicide was attended by an incomplete
justifying circumstance of the petitioner having acted
in the performance of his duty as a policeman, and
also appreciated in his favor the generic mitigating
circumstance of voluntary surrender. Dispositively, the
decision reads:
WHEREFORE, the accused, RUFINO S.
MAMANGUN, is hereby found GUILTY beyond
reasonable doubt of the crime of Homicide, defined
and penalized under Article 249, Revised Penal Code,
and taking into account the attendance of one (1)
privileged mitigation (sic) circumstance, one generic
circumstance and no aggravating circumstance, he is
hereby sentenced under the Indeterminate Sentence
Law, to suffer the penalty of imprisonment of from
Three (3) Years and Three (3) Months of prision
correctional as minimum, to Seven (7) years of prision
mayor, as maximum, to indemnify the heirs (parents)
of Gener Contreras in the total amount of
P352,025.00, and to past the costs.
SO ORDERED.
Unable to accept the judgment of conviction,
petitioner is now with this Court via the present
recourse alleging that the Sandiganbayan committed
reversible error in failing to apply paragraph 5, Article
11, of the Revised Penal Code, which would have
absolved him from criminal liability on the basis of his
submission that the shooting in question was done in
the performance of a duty or in the lawful exercise of
a right or office.
First off, petitioner insists that the shooting, which
ultimately caused the demise of Contreras, was
justified because he was repelling Contreras' unlawful
attack on his person, as Contreras was then about to
strike him on the head with a steel pipe.
We are not persuaded.
2
Well-settled is the rule that factual findings of the
Sandiganbayan are conclusive upon the Court except
where: (1) the conclusion is a finding grounded
entirely on speculations, surmises and conjectures;
(2) the inference made is manifestly mistaken; (3)
there is grave abuse of discretion; (4) the judgment is
based on misapprehension of facts and the findings of
fact are premised on the absence of evidence and are
contradicted by the evidence on record.5 None of
these exceptions obtains in this case.
Having admitted6 the fatal shooting of Contreras on
the night of July 31, 1992, petitioner is charged with
the burden of adducing convincing evidence to show
that the killing was done in the fulfillment of his duty
as a policeman.
The justifying circumstance of fulfillment of duty under
paragraph 5, Article II, of the Revised Penal Code
may be invoked only after the defense successfully
proves that: (1) the accused acted in the performance
of a duty; and (2) the injury inflicted or offense
committed is the necessary consequence of the due
performance or lawful exercise of such duty.7
Concededly, the first requisite is present in this case.
Petitioner, a police officer, was responding to a
robbery-holdup incident. His presence at the situs of
the crime was in accordance with the performance of
his duty. However, proof that the shooting and
ultimate death of Contreras was a necessary
consequence of the due performance of his duty as a
policeman is essential to exempt him from criminal
liability.
As we see it, petitioner's posturing that he shot
Contreras because the latter tried to strike him with a
steel pipe was a mere afterthought to exempt him
from criminal liability.
We see no plausible basis to depart from the
Sandiganbayan's findings that there was no reason
for the petitioner to shoot Contreras. The latter was
unarmed and had already uttered, "Hindi po ako,
Hindi po ako" before the petitioner fatally shot him on
2

the left arm. Prosecution witness Ayson, who was
then behind the petitioner when the latter shot
Contreras, testified that to the victim's utterances, the
petitioner even responded, "Anong hindi ako," and
immediately shot Contreras.8 As correctly observed
by the Sandiganbayan:
Besides being self-serving (with respect to the
accused) and biased (with respect to his co-
policemen-witnesses), We find (1) the claim of the
accused and his co-policemen-witnesses that the
victim (Contreras) attacked the said accused and (2)
their seemingly "positive" identification of the stainless
steel pipe (more of a rod) as his weapon, to be of
doubtful credibility, for the following reasons:
(1) We have no doubt that, as claimed by PO2 Carlito
Cruz and PO2 Hobert Diaz, the three policemen
appropriately identified themselves as police officers
as they started chasing the man they saw
"crouching," and, as claimed by accused PO2 Rufino
Mamangun, that, as he was about to catch up with
said man, he shouted, "Pulis! Tigil!" With all these
introductions and forewarnings, it is utterly incredible
and contrary to human experience that, that man,
later identified to be Gener Contreras and admittedly
not the person they were looking for, purportedly
armed only with a stainless steel "lead" pipe (more of
a rod) would suddenly stop, turn around and attack
one of the three policemen who were chasing him,
one after the other, with drawn guns.
(2) When the victim (Gener Contreras) fell down after
being shot by accused PO2 Mamangun, and as the
latter went near the fallen victim, said accused asked,
"Why did you go to the rooftop. You know there are
policemen here." He admits that he did not ask the
victim, "Why did you try to hit me, if you are not the
one?" This admission clearly belies the claim of the
police-witnesses that Gener Contreras attacked the
accused policeman with an iron pipe when he was
shot, for the accused should have asked the latter
question.
(3) The location of the entry of the bullet fired by
accused Mamangun which is at the outer left arm at
about the bicep of the victim and its trajectory as it
penetrated his body hitting his vital organs along the
way belies the claim of the accused that the victim
was facing him and had just missed his head with an
iron pipe, as instead the victim must have instinctively
shielded his body with his left arm.
Moreover, petitioner's pretense that Contreras struck
him with a steel pipe is intriguing. As it is, petitioner
did not report the same to Police Investigator Banez
when he reported back to the police station after the
shooting incident. It was only when a lead pipe was
recovered from the scene and brought to the police
station that petitioner conveniently remembered
Contreras trying to hit him with a pipe. Such a vital
information could not have escaped the petitioner's
mind. We are thus inclined to believe that the alleged
actuation of Contreras, which could have justified
petitioner's shooting him, was nothing but a concocted
story to evade criminal liability. Indeed, knowing that
he shot Contreras, the least that the petitioner should
have done was to bring with him to the police station
the very pipe with which Contreras tried to attack him.
As borne by the evidence, however, it was only after a
police investigator referred to the scene that the lead
pipe surfaced.
Petitioner would likewise argue that the testimony of
prosecution witness Ayson was incredible and riddled
with inconsistencies.
The alleged contradictions cited by the petitioner, i.e.
where the victim was shot, where he died, and as to
whether Ayson left his house after the shooting
incident, are but minor details which do not affect
Ayson's credibility. We have held time and again that
few discrepancies and inconsistencies in the
testimony of a witness referring to minor details and
not in actuality touching upon the central fact of the
crime, do not impair his credibility. Quite the contrary,
such minor inconsistencies even tend to strengthen
credibility because they discount the possibility that
the testimony was rehearsed.9
For sure, the record reveals that Ayson's answers to
the questions propounded by the defense counsel are
3
clear and categorical. As to where the victim died,
Ayson clarified that the victim was already at the
rooftop even before the arrival of the police officers.
As to why he was not able to warn Mamangun that
the victim was his relative, Ayson explained that he
was not able to utter any word because when
Contreras said "Hindi ako. Hindi ako," petitioner
suddenly fired at the latter.10 As to the claim that
Ayson was also on the roof, record shows that the
robbery-holdup happened at around 8:00 in the
evening. Before the policemen arrived, Ayson and
Contreras were already pursuing the robber.11 Ayson
also testified that when the victim was shot by the
petitioner, the former fell on his left side unconscious;
that he did not leave his house after the incident
because he was afraid that the policemen would
detain him.12
Self-defense, whether complete or incomplete, cannot
be appreciated as a valid justifying circumstance in
this case. For, from the above admitted,
uncontroverted or established facts, the most
important element of unlawful aggression on the part
of the victim to justify a claim of self defense was
absent. Lacking this essential and primary element of
unlawful aggression, petitioner's plea of self-defense,
complete or incomplete, must have to fail.
To be sure, acts in the fulfillment of a duty, without
more, do not completely justify the petitioner's firing
the fatal gunshot at the victim. True, petitioner, as one
of the policemen responding to a reported robbery
then in progress, was performing his duty as a police
officer as well as when he was trying to effect the
arrest of the suspected robber and in the process,
fatally shoot said suspect, albeit the wrong man.
However, in the absence of the equally necessary
justifying circumstance that the injury or offense
committed be the necessary consequence of the due
performance of such duty, there can only be
incomplete justification, a privileged mitigating
circumstance under Articles 13 and 69 of the Revised
Penal Code.
There can be no quibbling that there was no rational
necessity for the killing of Contreras. Petitioner could
3

have first fired a warning shot before pulling the
trigger against Contreras who was one of the
residents chasing the suspected robber.
All told, we find no reversible error committed by the
Sandiganbayan in convicting the petitioner of the
crime of Homicide attended by the privileged
mitigating circumstance of incomplete justifying
circumstance of having acted in the performance of
his duty as a policeman and the generic mitigating
circumstance of voluntary surrender.
IN VIEW WHEREOF, the instant petition is DENIED
and the assailed decision of the Sandiganbayan is
AFFIRMED in all respects.
No pronouncement as to costs.
SO ORDERED.
SECOND DIVISION
G.R. No. 181626 May 30, 2011
SANTIAGO PAERA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case
This resolves the petition for review1 of the ruling2 of
the Regional Trial Court of Dumaguete City3 (RTC)
finding petitioner Santiago Paera guilty of three
counts of Grave Threats, in violation of Article 282 of
the Revised Penal Code (RPC).
The Facts
As punong barangay of Mampas, Bacong, Negros
Oriental, petitioner Santiago Paera (petitioner)
allocated his constituents’ use of communal water
coming from a communal tank by limiting distribution
to the residents of Mampas, Bacong. The tank sits on
a land located in the neighboring barangay of
Mampas, Valencia and owned by complainant Vicente
Darong (Vicente), father of complainant Indalecio
Darong (Indalecio). Despite petitioner’s scheme,
Indalecio continued drawing water from the tank. On 7
April 1999, petitioner reminded Indalecio of the water
distribution scheme and cut Indalecio’s access.
The following day, petitioner inspected the tank after
constituents complained of water supply interruption.
Petitioner discovered a tap from the main line which
he promptly disconnected. To stem the flow of water
from the ensuing leak, petitioner, using a borrowed
bolo, fashioned a wooden plug. It was at this point
when Indalecio arrived. What happened next is
contested by the parties.
According to the prosecution, petitioner, without any
warning, picked-up his bolo and charged towards
Indalecio, shouting "Patyon tikaw!" (I will kill you!).
Indalecio ran for safety, passing along the way his
wife, Diosetea Darong (Diosetea) who had followed
him to the water tank. Upon seeing petitioner,
Diosetea inquired what was the matter. Instead of
replying, petitioner shouted "Wala koy gipili, bisag
babaye ka, patyon tikaw!" ("I don’t spare anyone,
even if you are a woman, I will kill you!"). Diosetea
similarly scampered and sought refuge in the nearby
house of a relative. Unable to pursue Diosetea,
petitioner turned his attention back to Indalecio. As
petitioner chased Indalecio, he passed Vicente, and,
recognizing the latter, repeatedly thrust his bolo
towards him, shouting "Bisag gulang ka, buk-on nako
imo ulo!" ("Even if you are old, I will crack open your
skull!").
According to petitioner, however, it was Indalecio who
threatened him with a bolo, angrily inquiring why
petitioner had severed his water connection. This left
petitioner with no choice but to take a defensive
stance using the borrowed bolo, prompting Indalecio
to scamper.
Except for Vicente, who was seriously ill, the Darongs
testified during trial. Petitioner was the defense’s lone
witness.
The Ruling of the Municipal Circuit Trial Court
The 7th Municipal Circuit Trial Court of Valencia-
Bacong, Negros Oriental (MCTC) found petitioner
guilty as charged, ordering petitioner to serve time
and pay fine for each of the three counts.4 The MCTC
4
found the prosecution evidence sufficient to prove the
elements of Grave Threats under Article 282, noting
that the Darongs’ persistent water tapping contrary to
petitioner’s directive "must have angered" petitioner,
triggering his criminal behavior.5 The MCTC rejected
petitioner’s defense of denial as "self-serving and
uncorroborated."6
Petitioner appealed to the RTC, reiterating his
defense of denial.
Ruling of the Regional Trial Court
The RTC affirmed the MCTC, sustaining the latter’s
finding on petitioner’s motive. The RTC similarly found
unconvincing petitioner’s denial in light of the "clear,
direct, and consistent" testimonies of the Darongs and
other prosecution witnesses.7
Hence, this appeal.
Abandoning his theory below, petitioner now
concedes his liability but only for a single count of the
"continued complex crime" of Grave Threats. Further,
petitioner prays for the dismissal of the case filed by
Vicente as the latter’s failure to testify allegedly
deprived him of his constitutional right to confront
witnesses. Alternatively, petitioner claims he is
innocent of the charges for having acted in defense of
the property of strangers and in lawful performance of
duty, justifying circumstances under paragraphs 3 and
5, Article 11 of the RPC.8
In its Comment, the Office of the Solicitor General
(OSG) finds merit in petitioner’s concession of liability
for the single count of the "continued complex crime"
of Grave Threats. The OSG, however, rejects
petitioner’s prayer for the dismissal of Vicente’s
complaint, arguing that petitioner’s guilt was amply
proven by the prosecution evidence, not to mention
that petitioner failed to raise this issue during trial.
Further, the OSG finds the claim of defense of
stranger unavailing for lack of unlawful aggression on
the part of the Darongs. Lastly, the OSG notes the
absence of regularity in petitioner’s performance of
duty to justify his conduct.9
4

The Issue
The question is whether petitioner is guilty of three
counts of Grave Threats.
The Ruling of the Court
We rule in the affirmative, deny the petition and affirm
the RTC.
Due Process Mischief in Raising
New Issues on Appeal
Although uncommented, petitioner’s adoption of new
theories for the first time before this Court has not
escaped our attention. Elementary principles of due
process forbid this pernicious procedural strategy - it
not only catches off-guard the opposing party, it also
denies judges the analytical benefit uniform theorizing
affords. Thus, courts generally refuse to pass upon
freshly raised theories.10 We would have applied this
rule here were it not for the fact that petitioner’s liberty
is at stake and the OSG partially views his cause with
favor.
Petitioner Liable for Three Counts of Grave Threats
To limit his liability to one count of Grave Threats,
petitioner tries to fit the facts of the case to the
concept of "continued crime" (delito continuado)
which envisages a single crime committed through a
series of acts arising from one criminal intent or
resolution.11 To fix the penalty for his supposed single
continued crime, petitioner invokes the rule for
complex crime under Article 48 of the RPC imposing
the penalty for the most serious crime, applied in its
maximum period.
The nature of the crime of Grave Threats and the
proper application of the concepts of continued and
complex crimes preclude the adoption of petitioner’s
theory.
Article 282 of the RPC holds liable for Grave Threats
"any person who shall threaten another with the
infliction upon the person x x x of the latter or his
family of any wrong amounting to a crime[.]" This
felony is consummated "as soon as the threats come
to the knowledge of the person threatened."12
Applying these parameters, it is clear that petitioner’s
threat to kill Indalecio and Diosetea and crack open
Vicente’s skull are wrongs on the person amounting to
(at the very least) homicide and serious physical
injuries as penalized under the RPC. These threats
were consummated as soon as Indalecio, Diosetea,
and Vicente heard petitioner utter his threatening
remarks. Having spoken the threats at different points
in time to these three individuals, albeit in rapid
succession, petitioner incurred three separate criminal
liabilities.
Petitioner’s theory fusing his liability to one count of
Grave Threats because he only had "a single mental
resolution, a single impulse, and single intent"13 to
threaten the Darongs assumes a vital fact: that he
had foreknowledge of Indalecio, Diosetea, and
Vicente’s presence near the water tank in the morning
of 8 April 1999. The records, however, belie this
assumption. Thus, in the case of Indalecio, petitioner
was as much surprised to see Indalecio as the latter
was in seeing petitioner when they chanced upon
each other near the water tank. Similarly, petitioner
came across Diosetea as he was chasing Indalecio
who had scampered for safety. Lastly, petitioner
crossed paths with Vicente while running after
Indalecio. Indeed, petitioner went to the water tank
not to execute his "single intent" to threaten Indalecio,
Diosetea, and Vicente but to investigate a suspected
water tap. Not having known in advance of the
Darongs’ presence near the water tank at the time in
question, petitioner could not have formed any intent
to threaten any of them until shortly before he
inadvertently came across each of them.
The importance of foreknowledge of a vital fact to
sustain a claim of "continued crime" undergirded our
ruling in Gamboa v. Court of Appeals.14 There, the
accused, as here, conceded liability to a lesser crime
5
– one count of estafa, and not 124 as charged –
theorizing that his conduct was animated by a single
fraudulent intent to divert deposits over a period of
several months. We rejected the claim –
15 x x x x (Emphasis supplied)
Similarly, petitioner’s intent to threaten Indalecio,
Diosetea, and Vicente with bodily harm arose only
when he chanced upon each of his victims.
Indeed, petitioner’s theory holds water only if the facts
are altered – that is, he threatened Indalecio,
Diosetea, and Vicente at the same place and at the
same time. Had this been true, then petitioner’s
liability for one count of Grave Threats would have
rested on the same basis grounding our rulings that
the taking of six roosters16 or 13 cows17 found at the
same place and taken at the same time results in the
commission of only one count of theft because –
[t]here is no series of acts committed for the
accomplishment of different purposes, but only of one
which was consummated, and which determines the
existence of only one crime. The act of taking the
roosters [and heads of cattle] in the same place and
on the same occasion cannot give rise to two crimes
having an independent existence of their own,
because there are not two distinct appropriations nor
two intentions that characterize two separate
crimes.18 (Emphasis in the original)
Having disposed of petitioner’s theory on the nature of
his offense, we see no reason to extensively pass
upon his use of the notion of complex crime to avail of
its liberal penalty scheme. It suffices to state that
under Article 48 of the RPC, complex crimes
encompass either (1) an act which constitutes two or
more grave or less grave offenses; or (2) an offense
which is a necessary means for committing another19
and petitioner neither performed a single act resulting
in less or less grave crimes nor committed an offense
as a means of consummating another.
The Prosecution Proved the Commission
of Grave Threats Against Vicente
5

We find no reversible error in the RTC’s affirmance of
the MCTC’s ruling, holding petitioner liable for Grave
Threats against Vicente. The prosecution’s evidence,
consisting of the testimonies of Indalecio, Diosetea
and two other corroborating witnesses,20 indisputably
show petitioner threatening Vicente with death.21
Vicente’s inability to take the stand, for documented
medical reason,22 does not detract from the veracity
and strength of the prosecution evidence. Petitioner’s
claim of denial of his constitutional right to confront
witnesses is untenable as he had every opportunity to
cross-examine the four prosecution witnesses. No law
requires the presentation of the private complainant
as condition for finding guilt for Grave Threats,
especially if, as here, there were other victims and
witnesses who attested to its commission against the
non-testifying complainant. Significantly, petitioner did
not raise Vicente’s non-appearance as an issue
during the trial, indicating that he saw nothing
significant in the latter’s absence.
No Justifying Circumstances Attended Petitioner’s
Commission of Grave Threats
There is likewise no merit in petitioner’s claim of
having acted to "defend[] and protect[] the water rights
of his constituents" in the lawful exercise of his office
as punong barangay.23 The defense of stranger rule
under paragraph 3, Article 11 of the RPC, which
negates criminal liability of –
[a]nyone who acts in the defense of the person or
rights of a stranger, provided that the first and second
requisites mentioned in the first circumstance of this
article are present and that the person defending be
not induced by revenge, resentment or other evil
motive.1avvphi1
requires proof of (1) unlawful aggression on the part
of the victim; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) absence of
evil motives such as revenge and resentment.24
None of these requisites obtain here. Not one of the
Darongs committed acts of aggression against third
parties’ rights when petitioner successively threatened
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them with bodily harm. Indeed, all of them were
performing ordinary, peaceful acts – Indalecio was
standing near the water tank, Diosetea was walking
towards Indalecio and Vicente was standing in the
vegetable garden a few meters away. With the
element of unlawful aggression absent, inquiry on the
reasonableness of the means petitioner used to
prevent or repel it is rendered irrelevant. As for the
third requisite, the records more than support the
conclusion that petitioner acted with resentment,
borne out of the Darongs’ repeated refusal to follow
his water distribution scheme, causing him to lose
perspective and angrily threaten the Darongs with
bodily harm.
Lastly, the justifying circumstance of fulfillment of duty
or exercise of office under the 5th paragraph of Article
11 of the RPC lies upon proof that the offense
committed was the necessary consequence of the
due performance of duty or the lawful exercise of
office.25 Arguably, petitioner acted in the performance
of his duty to "ensure delivery of basic services"26
when he barred the Darongs’ access to the communal
water tank. Nevertheless, petitioner exceeded the
bounds of his office when he successively chased the
Darongs with a bladed weapon, threatening harm on
their persons, for violating his order. A number of
options constituting lawful and due discharge of his
office lay before petitioner27 and his resort to any of
them would have spared him from criminal liability. His
failure to do so places his actions outside of the ambit
of criminally immune official conduct. Petitioner ought
to know that no amount of concern for the delivery of
services justifies use by local elective officials of
violence or threats of violence.
WHEREFORE, we DENY the petition. We AFFIRM
the Decision dated 28 November 2007 of the
Regional Trial Court of Dumaguete City, Branch 39.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
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