POMOY v. PEOPLE G.R.

150647, 29 September 2004

FACTS
A petition for Review by Appellant Pomoy, against the ruling of RTC Iloilo and the CA,
that found him guilty of homicide. The TC and CA found that the death of Tomas
Balboa, who was shot with a .45 service pistol, with deliberate intent and decided
purpose to kill, and without any justifiable cause or motive, did then and there
willfully, unlawfully and feloniously assault the deceased Balboa. Hence this
petition.
Prosecution:
Balboa was a teacher in Concepcion College of Science and Fisheries in
Concepcion, Iloilo. About 7:30 am of 4 January 1990, some policemen arrived to
arrest Balboa, allegedly due to a robbery back in December 1989. Balboa complied
and was detained in Camp Jalandoni, Iloilo with Edgar Samudio, another suspect of
the robbery case.
About 2 pm, petitioner Pomoy, the police sergeant, came for Balboa for tactical
interrogation at the investigation room. At that time, Pomoy had a service gun (a .
45 caliber pistol). When Pomoy and Balboa were in the building near the
investigation room, and two (2) gunshots were heard. When they came to the
source of the gunshot sounds, Pomoy was seen still holding the .45 caliber pistol,
facing Balboa, who was lying in a pool of blood, about two (2) feet away.
When the Commanding Officer arrived, he disarmed Pomoy, and had Balboa
brought to the hospital but was stopped by a doctor in the premises, saying it was
unnecessary as Balboa is already dead. Upon the request of Mrs. Balboa, an autopsy
was conducted in NBI Iloilo with findings by the medicolegal officer, as follows:
Cause of Death: Hemorrhage, massive secondary gunshot wounds on chest and
abdomen.
Defense:
Petitioner Pomoy generally adopts the narration of facts in the trail court and CA
decisions, Defense had the following witnesses:
Erna Basa (the lone eyewitness to the incident) who says, while she was working
about 2pm, heard some noise and exchange of words that were unclear but seemed
like trouble. She opens the door, and seeing one meter away, finds Pomoy and
Balboa grappling for possession of the gun from Pomoys holster. It all happened so
fast that the gun was pulled out of the holster, a shot was fired, but she wasnt sure
who pulled the trigger.

Eden Legaspi, she also hears the commotion from the outside, but remained seated
where she was. She witnesses Erna Basa go and open the door. Eden Legaspi only
stood up after shots were fired and hears on of the two men fall down.
Dr. Salvador Mallo Jr., the medico legal officer who conducted the autopsy. He finds
two (2) entrance wounds on Balboa, ones trajectory going upward, and the other
downward.
Pomoy the petitioner, he notes that once he opened the door to meet Balboa, the
latter suddenly approached him to take hold of the gun in the holster. Pomoy also
notes he loaded and cocked his gun before going to Camp Jalandoni that day.
Though Balboa is shorter, Pomoy notes Balboa was bigger in build. Pomoy however,
prevented Balboa from taking his gun. After a few seconds of grappling, the gun
was forced out of the holster, it fired to the right side of the victim.
RTC and CA:
Pomoy was held guilty based on the following: 1) Petitioner had substantial control
of the gun, 2) the
gun was locked prior to the grabbing incident, hence unlocked by the petitioner, 3)
location of the wounds do not support the assertion of the grabbing of the gun, 4)
as the OSG said, an accident was unlikely since there were two gunshot wounds,
on two different angles and distant parts of the body, instead of merely one. The
OSG said that it is an oft repeated principle that the location, number and gravity of
the wounds inflicted on the victim have a more revealing tale of what actually
happened during the incident.
The appellate court cited People v. Reyes saying that revolvers are not prone to
accidental firing since it
need to be cocked and pressure is needed to be exerted on the trigger. Furthermore,
the CA debunked the alternative plea of self defense. It held that petitioner had
miserably failed to prove the attendance of unlawful aggression, an indispensable
element of this justifying circumstance. Also, the CA altered the trial courts ruling in
appreciating the aggravating circumstance of abuse of public position. The CA said
that for the aggravating circumstance to apply, he must use his influence, prestige
and ascendancy which his office gives him in realizing his purpose. If the accused
could have perpetrated the crime without occupying his position, then there is no
abuse of public position. (People vs. Joyno, 304 SCRA 655, 670). The CA ruled that
in this case there was no showing of a premeditated plan, nor did the petitioner take
advantage of his public position. Hence there were neither aggravating nor
mitigating circumstances proven.
ISSUE:
a) Did Pomoy had full control of the gun, as the CA ruled?
b) Did the safety lock feature, requirement of pressure and two gunshots
necessarily conclude a determined effort to kill instead of an accident, as the CA
held?
c) Did the number and location of the gunshot wounds necessarily conclude
deliberate intent?

b) W/N there was a exempting circumstance of accident, as in Art 12, par. 4.

c) W/N there was Self Defense.
HELD:
The CA failed to see the prosecutions failure to overturn the allegations of the
accident, as an exempting circumstance in Article 12, which exculpates the actor
when the harm was done without his fault or negligence but rather on
circumstances unforeseen or out of his control. Thus, in determining whether an
accident attended the incident, courts must take into account the dual standards
of (1) lack of intent to kill and (2) absence of fault or negligence.
a. POMOY HAD NO FULL CONTROL. According to the facts, the Petitioner was NOT in
control of the
gun when it fired, mainly through the testimonial evidence of Erna Basa. According
to the cross,
when she began to see the incident, the gun was still in the holster, at the side of
the petitioner. She
also mentioned both the petitioner and the deceased had their hands on the gun,
while it was INSIDE the holster, at that point they were both already grappling for
possession. She mentions that both gunshots happened during the grappling, but
because of the wrestling of the two, she could not
see where the gun was pointed towards. This was because as Pomoys right hand
and Balboas left
hand were scuffling for possession, Pomoy continued to use his left hand to subdue
Balboa.
The foregoing account clearly demonstrates that the petitioner did NOT have control
of the gun to
consider any willful intent to kill the deceased. According to the witness, the
deceased persistently
tried to wrest the weapon from the petitioner, while he resolutely tried to thwart
those attempts. The CA therefore, had no firm basis to conclude that Pomoy had full
possession of the gun.
b. NO CLEAR SHOWING OF DETERMINED EFFORT. Since it is now undisputed that
both petitioner and victim struggled aggressively for possession of the gun, the
eyewitness account of Basa clearly illustrated the fact that in the fierce and
vicious frenzied grappling, it supports the conclusion that the safety lock was
accidentally released, and the force of either man was strong enough to fire the
gun, putting the necessary pressure. Not to mention that it was admitted that
Pomoy cocked the gun earlier that day.
Also, the fact that two gunshots were fired were attributed to the nature of the gun
and not a
conclusion of deliberate intent. As the petitioner himself testified, he said that a
caliber .45 semiautomatic pistol, when fired, immediately slides backward throwing
away the empty shell and returns immediately carrying again a live bullet in its
chamber. Thus, the gun can, as it did, fire in
succession. Verily, the location of, and distance between the wounds and the
trajectories of the

bullets jibe perfectly with the claim of the petitioner: the trajectory of the first shot
going downward from left to right thus pushing Balboas upper body, tilting it to the
left while Balboa was still clutching
petitioners hand over the gun; the second shot hitting him in the stomach with the
bullet going
upward of Balboas body as he was falling down and releasing his hold on
petitioners hand.
Thus the reliance of the CA in People v. Reyes was misplaced. This case involves a
semi automatic
pistol, the mechanism of which is very different from that of a revolver, the gun
used in Reyes. Unlike a
revolver, a semi automatic pistol, as sufficiently described by petitioner, is prone to
accidental firing
when possession thereof becomes the object of a struggle.
c. THE LOCATION OF THE WOUNDS ARE IRRELEVANT, though ordinarily it would be.
In this case though, they are inconsequential where both the victim and the accused
were grappling for possession of a gun, the direction of its nozzle may continuously
change in the process, such that the trajectory of the bullet when the weapon fires
becomes unpredictable and erratic. In this case, the eyewitness account of that
aspect of the tragic scuffle shows that the parties positions were unsteady, and
that the nozzle of the gun was neither definitely aimed nor pointed at any particular
target.
1. The ELEMENTS of ACCIDENT WERE ALL PRESENT in this case.
The elements of accident are as follows: 1) the accused was at the time performing
a lawful act with due care; 2) the resulting injury was caused by mere accident; and
3) on the part of the accused, there was no fault or no intent to cause the injury.
From the facts, it is clear that all these elements were present. At the time of the
incident, petitioner was an investigator for the PNP. Thus, he was in the lawful
performance of his duties that, under the instructions of his superior, he fetched the
victim from the latters cell for a routine interrogation. Also, it was in the lawful
performance of his duty as a law enforcer that petitioner 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, petitioner was duty bound to prevent the
snatching of his service weapon by anyone, especially by a detained person in his
custody. Such weapon was likely to be used to facilitate escape and to kill or maim
persons in the
vicinity, including petitioner himself. Petitioner cannot be faulted for negligence. He
exercised all the necessary precautions to prevent his service weapon from causing
accidental harm to others. As he so assiduously maintained, he had kept his service
gun locked when he left his house; he kept it inside its
holster at all times, especially within the premises of his working area. At no
instance during his testimony did the accused admit to any intent to cause injury to
the deceased, much less kill him.
The participation of petitioner, if any, in the victims death was limited only to acts
committed in the
course of the lawful performance of his duties as an enforcer of the law. The
removal of the gun from its

holster, the release of the safety lock, and the firing of the 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 petitioner. At the very least,
these factual circumstances create serious doubt on the latters culpability.
3. There was NO SELF DEFENSE. Pomoy put forth self defense as an alternative
defense, that granting arguendo that he intentionally shot Balboa, he claims he did
so to protect his life and limb from real
and immediate danger. The SC said that Self defense is inconsistent with the
exempting circumstance of accident, in which there is no intent to kill. On the other
hand, self defense necessarily contemplates a premeditated intent to kill in order to
defend oneself from imminent danger. Apparently, the fatal shots in the instant case
did not occur out of any conscious or premeditated effort to overpower, maim or kill
the victim for the purpose of self defense against any aggression; rather, they
appeared to be the spontaneous and accidental result of both parties attempts to
possess the firearm. Since the death of the victim was the result of an accidental
firing of the service gun of petitioner an exempting circumstance as defined in
Article 12 of the Revised Penal Code a further discussion of whether the
assailed acts of the latter constituted lawful self defense is unnecessary.
HELD: Though timeless is the legal adage that facts found by the trial court and
appellate court are conclusive, the Supreme Court however may overturn the same
when certain crucial facts or details are overlooked and when upon a petition, a
reexamination is imperative. Due to the appreciation of facts of the accident,
credibility of the witnesses creating a reasonable doubt, and upholding the
presumption of innocence, the appellant was therefore ACQUITTED.