Unproven defense
A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison (The Philippine Star) - December 19, 2018 - 12:00am

In most cases, an accused raises the defense of denial in the commission of a crime. But there are also cases when the accused admits committing the crime, but raises the defense of avoiding or preventing an evil or injury to him. This is one of the justifying circumstances under the Revised Penal Code (Article 12 paragraph 4). It is an affirmative defense that must be proved by the accused with clear and convincing evidence. To prove it, what must be shown by the accused? This is the question resolved in this case of Paul.

Paul has a younger brother Jacob who was mentally ill. They have a neighbor Tim who is the friend of Jacob and sometimes acts also as his older brother. One time, someone inserted a lighted firecracker in a cigarette pack and gave it to Jacob who brought the pack home and placed it on the dining table as he was having dinner with his father. Momentarily, the firecracker exploded. Paul and his family resented this cruel joke and they suspected Tim their neighbor as the culprit. While the matter was brought to the Barangay Captain, it turned out that Tim was not the culprit, so the Captain considered the matter closed. But Paul was bent on confronting Tim about it.

Hence the following night at about 9 p.m. while Paul and a friend were conversing, he saw Tim’s father Henry, a pedicab driver going home and stopping at a street corner. Paul confronted him about what Tim his son had done to his brother Jacob. But Henry ignored him. This incensed Paul so he ran after Henry, overtook him, grabbed and pushed his pedicab which nearly fell into a canal. Henry again ignored Paul and pedaled on until he reached his house where Lynda his wife was waiting for him at the porch above the balcony of the house while Tim was already asleep.

Shortly after Henry entered his house, Paul arrived and waited at the balcony. Henry suddenly opened the door and demanded to know why he was being followed. Paul replied that he just wanted to talk to Tim but Henry told him that the latter was already asleep. Lynda went down to the balcony and placed her hand on her husband’s shoulder to pacify him. Then Paul pulled out a handgun and shot Henry on the forehead and walked away from the scene. Henry was brought to a hospital but died shortly thereafter due to gunshot wound at the left side of the head and hyperbolic shock secondary to loss of blood. Paul went home and told his father what he did, laid down his gun and said he would surrender to the police. The following day, Paul indeed surrendered to the police. So he was charged with the crime of murder for killing Henry with Lynda and Tim testifying and proving the above events that happened.

For his defense, Paul claimed that he was merely performing a lawful act. He testified that when he insisted to wake his son Tim, Henry went to the room and emerged holding a gun pointed downward with his trigger finger outside the trigger guard. Fearing that he would be shot, Paul said that he took hold of Henry’s hand and pulled the gun toward his stomach. But Henry still resisted so he pulled the gun to the level of Henry’s forehead and it suddenly went off. This story was corroborated by his friend and father.

But the trial court did not believe Paul’s defense and found him guilty of murder, sentencing him to reclusion perpetua and to indemnify the heirs of Henry. Was the trial court correct?

Yes, said the Supreme Court (SC), not for murder but only for homicide as no treachery was proven. Paul’s defense is a justifying circumstance under Article 12, par. 4 of the Revised Penal Code, known as “state of necessity.” It is an affirmative defense wherein the accused admits the killing. So he must prove with clear and convincing evidence that he acted in a state of necessity out of grave peril for his own life which must not be brought about by his intentional provocation. In this case, the findings of the trial court as borne by the records of the case show that Paul was the provocateur, the unlawful aggressor and the author of a deliberate and malicious act of shooting the victim at close range on the forehead. This is affirmed by Lynda who was shocked when Paul pulled out his handgun and deliberately shot Henry on the forehead. Paul also fled from the scene of the crime and surrendered to the police authorities the following day without surrendering his gun and without informing the police authorities that he killed the victim in a state of necessity. He had also motive to shoot and kill the victim because he was incensed at Henry for ignoring him.

But considering that the prosecution failed to show that the means employed by Paul did not give Henry an opportunity to defend himself and that it was deliberately or consciously adopted, there is no treachery in the killing of Henry. So Paul is only guilty of homicide and should be sentenced to imprisonment of 10 years minimum to 15 years maximum, and to pay the heirs of Henry, all the consequential damages and civil indemnity (People vs. Retubado, G.R. 124058, December 10, 2003).

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Email: attyjosesison@gmail.com

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