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Republic of the Philippines


Department of Justice
Office of the City Prosecutor
City of _________

Heirs of Jose, Case Number: 5234100


Complainant Charge:
The Crime of Homicide
Versus

PO3 Ronald, PO3 Selvi and


PO3 Danilo,
Respondents
X-------------------------------------X

RESOLUTION

Before the Office of the City Prosecutor of the City of __________, through the
Investigating Prosecutor, is a complaint of homicide filed by the heir of Jose, Rafael,
against three police officers namely PO3 Ronald, PO3 Selvi and PO3 Danilo for
allegedly killing Jose. The heirs of Jose are seeking the Office of the City Prosecutor
to find probable cause on the complaint and to formally charge the three police officers
in a court of law that they may stand trial.

The Facts of the Case

At around 1:10 A.M. of November 23, 2014, Jose, a former police officer, and
his companion, Marlon, who were both drunk, took a taxi driven by Ferdimar. Ferdimar
noticed that Jose had a gun tucked on the right side of his waist as his jacket was
partly open and the latter immediately told him to bring them to
___________________. Ferdimar felt fear and brought them instead at the taxi line
beside BGH Rotunda and explained that he cannot bring them to Dreamland because
the place is far and his taxi is running out of gas. Jose got displeased and suddenly
drew his gun with his right hand, pointed it to the face of Ferdimar, threatened to shoot
him and struck him using the gun three times. Marlon, who was shocked, pacified
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Jose. Ferdimar, with blood dripping from his nose, reported the incident at Police
Station 5 located near BGH.
Upon receipt of the report, the Deputy Station Commander of Police Station 5
instructed PO3 Ronald who was on duty, to form and lead a team to respond to the
incident and apprehend the perpetrator. Thus, PO3 Ronald, PO3 Selvi and PO3
Danilo, on call of duty and wearing their prescribed uniform, responded to the place of
the incident accompanied by Ferdimar. While they were passing below the BGH exit
gate, they chanced upon Jose and Marlon, walking toward the BGH exit gate.
Ferdimar identified them as the same persons who boarded the taxi. Upon seeing
them, Jose, at the right of the taxi, drew his gun with his right hand from his front right
waistline and, supported by his left hand, pointed to all of them, especially to the
uniformed police officers on board the taxi even before they alighted. With the positive
identification by Ferdimar, the three uniformed police officers with him almost
simultaneously alighted from the taxi.
At 1:16 A.M., PO3 Ronald, coming from the right back seat, approached the
duo to confront them about the incident complained of but Jose pointed the gun
directly to him so, with both hands raised, he announced in a pacifying mode
“Pulis kami, pulis kami”, and in a calm manner, told the latter to stop pointing his gun
at him but he did not comply. PO3 Danilo who alighted from tha taxi proceeded to the
right side of Jose while PO3 Selvi, who also alighted from the taxi,
drew his service firearm and moved around the back of the taxi to assist his team.
Because of the actual danger to the life of Ronald, PO3 Danilo made a drastic action
to disarm Jose but was only able to partly get hold of the latter’s hands as he
subsequently twisted his elbow, spun his body towards PO3 Danilo, and fired his gun
towards PO3 Ronald. Due to Jose’s strength for being physically bigger than PO3
Danilo and the recoil of the gun fire, PO3 Danilo fell down at Jose’s right side. Jose
then turned to PO3 Danilo who was down and in a forward shooting position, aimed
downward and about to shoot him. PO3 Selvi, at a distance of more than two feet from
Jose, instinctively fired once at the latter to disable him and to avoid further incident,
but he was shocked when he saw the latter fall down with blood pouring out from his
head. Marlon, the companion of Jose, immediately ran way because of fear.
PO3 Selvi told PO3 Danilo to call the Deputy Station Commander using a cellular
phone to report about the incident and request for Emergency Medical Service
assistance to rush Jose to the hospital.

The Contention of the Complainant


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The heirs of Jose contends that in homicide, the three aggravating


circumstances mentioned under two hundred and forty eight of the Revised Penal
Code are not present and the intent to kill is not evident at the present case, it is still
conclusively presumed which means that there was negligence on the part of the
three police officers although their original intention was really not to kill Jose. The
heirs of Jose further contend that by doing such act, the respondents’ intention to kill
were not on their minds although the act can cause death on any person and that
even if homicide is not planned, it is done so through negligence. As to the existence
of probable cause, the heirs of Jose contend that the elements of the crime of
homicide set forth under article two hundred and forty nine of the Revised Penal Code
are present.

The Contention of the Respondents

The respondents to the complaint filed by the heirs of Jose namely, PO3
Ronald, PO3 Danilo and PO3 Selvi, vehemently deny all the allegations set forth in the
complaint and contend that they must not be charged for the crime of homicide under
article two hundred and forty nine of the Revised Penal Code since they were justified
under article eleven of the Revised Penal Code.
The respondents contend that they must not incur any criminal liability and
must be free from the charges and allegations made by the heirs of Jose since they
have performed a justifiable act based from paragraph three and paragraph five of the
Revised Penal Code.
The respondents to the complaint filed by the heirs of Jose further contend that
one of the elements of the crime of homicide under article two hundred and forty nine
of the Revised Penal Code is criminal intent and that criminal intent is lacking in the
present case because of the factual circumstances of the incident.
Moreover, as to the existence of probable cause, the respondents contend
that such complaint must be dismissed by the Office of the City Prosecutor of the
City of Baguio because in order that probable cause may exist,
the elements of the crime of homicide mentioned in the Revised Penal Code must also
exist.

The Issues of the Case

The issues of the present case deduced are:


1. Whether or not the respondents were lawfully justified in committing the act;
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2. Whether or not probable cause exists for the respondents to be charged for
the crime of homicide.

Decision of the Investigating Prosecutor

First Issue

The first issue is whether or not the respondents were lawfully justified in
committing the act.
The first defense that the respondents propounded in their defense is that the
respondents were lawfully justified in committing the act on the ground that PO3
Danilo was pinned down and to be shot by Jose, with no means whatsoever of
defending himself and that PO3 Selvi instinctively fired once at Jose to disable him
and to avoid further incident. Because of such act manifested by Jose, the
respondents contend that paragraph three of article eleven of the Revised Penal Code
protects them from incurring criminal liability specifically, the crime of homicide.
I agree with the respondents.
Paragraph three of article eleven of the Revised Penal Code explicitly provides:
Article 11. Justifying circumstances. - The following do not incur any criminal liability:
xxxxx
3. Anyone who acts in 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.
xxxxx
For clarification, any person not included in the enumeration of relatives
mentioned in paragraph two of article eleven of the Revised Penal Code, is
considered a stranger for the purpose of paragraph three of the aforesaid article.
Hence, even a close relative or friend, such as in the present case of the police
officers, is considered a stranger within the meaning of paragraph three of the article.
Further, for the above – stated provision to be in full force, the following
requisites must be present:
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent and repel it.
Third. The person defending be not induced by revenge.
The first requisite of paragraph three of article eleven of the Revised Penal
Code was satisfied by the respondents because of the existing imminent threat and
peril to the life of PO3 Danilo who was down on the ground and at the same time
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defenseless because Jose had aimed downward at and about to shoot PO3 Danilo
using his caliber .45 pistol. Furthermore, in this case, the embattled policemen did not
have the luxury of time. Neither did they have much choice. PO3 Selvi’s shooting of
Jose was an immediate and spontaneous reaction to imminent danger. The acts
performed by Jose, that is when he fired his gun against PO3 Ronald and twisting the
elbow of PO3 Danilo and after which aimed his gun and about to shoot PO3 Danilo,
constitutes as unlawful aggression against the police officers because the physical
attack of Jose, based from the factual circumstances of the incident, has actually
broken out and materialized.
I also find that the second requisite of paragraph three of article eleven of the
Code was satisfied by the respondents since there was reasonable necessity on the
part of PO3 Selvi to take a drastic course of action against the aggression of Jose
which was unlawful. The course of action taken by PO3 Selvi is necessary because of
the existing unlawful aggression of Jose against PO3 Danilo. However, there was no
intent on the part of PO3 Selvi to end the life of Jose based on the factual
circumstances of the incident since the intent of PO3 Selvi was to pacify Jose that is
why PO3 Selvi instinctively fired once at Jose to disable him and to avoid further
incident because of the unlawful aggression of Jose against PO3 Danilo. As to the
reasonableness of the means employed, PO3 Selvi is qualified for using his gun to
pacify Jose because of the nature and quality of the weapon used by Jose and his
physical character and size wherein Jose is bigger than any of the three police officers
who responded during that fateful early morning of November 23, 2014. If PO3 Selvi
has not acted instinctively against the actions of Jose during the incident, the latter
may have shot PO3 Danilo and injure him or even worse, killed the policeman. The act
of PO3 Selvi, was merely instinctive, but then reasonable because of the present
situation of PO3.
The respondents contend that the third requisite of paragraph three of article
eleven is also present since their motive or intention was to apprehend Jose.
I agree with the respondents and the jurisprudence they cited. There was no
intent or inducement of revenge, resentment or evil motive on the part of the police
officers accused particularly PO3 Selvi because his only intention was to save PO3
Danilo from the imminent danger existing at the time of the incident. Revenge,
resentment or evil motive was absent at the time the act was performed by PO3 Selvi
because of the existing unlawful aggression of Jose against one of the police officers.
Furthermore, PO3 Selvi cannot be induced of resentment, revenge or even motive
because PO3 Selvi does not even know Jose. During the incident, formal thinking on
the part of PO3 Selvi was absent and it was instinct that guided him to fire at Jose,
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who was drunk. It is contrary to human experience that resentment, revenge or evil
motive may exist at any time against any person.
I also agree with the respondents that their acts were lawfully justified by
paragraph five of article eleven of the Revised Penal Code.

The Revised Penal Code provides that:


Article 11. Justifying circumstances. - The following do not incur any criminal liability:
xxxxx
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office.
xxxxx
For the aforesaid justifying circumstance to apply, the following requisites must
be present:
First. That the accused acted in the performance of a duty or in the lawful
exercise of a right or office;
Second. That the injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise of such right or
office.
The respondent police officers contend that they were in the performance of a
lawful duty from the time Fredimar reported the incident to the police station to the
time PO3 Selvi instinctively fired at Jose because of the threat to the life of PO3
Danilo.
I agree with the respondent police officers that they acted in the performance
of their duty because based from the factual circumstances of the case, the three
police officers were on duty at Police Station five when the report was received and
that Deputy Station Commander Police Inspector Joel instructed PO3 Ronald with
PO3 Danilo and PO3 Selvi, also on call of duty, to respond to the incident, investigate
and apprehend the perpetrator. Clearly, they were acting in the performance of their
duty at the time when the incident happened since they, the three police officers, on
call of duty.
I also agree with the respondents since the policemen were in the legitimate
performance of their duty when PO3 Selvi shot Jose. Furthermore, the shooting of
Jose was part of the police officer’s performance of duty when the police officers
responded to the incident. Jose was about to commit a felonious act, that is, to shoot
and injure or even kill PO3 Danillo with intent. Moreover, Jose was committing an
offense in the presence of the policemen when Jose fired the first shot of bullet in the
direction of one of the police officers. The respondents, the police officers, acted in
fulfillment of a duty as public officers and protector of the society and the death of
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Jose was the necessary consequence of the execution of their duty which was
regularly performed and not merely presumed. The policemen were justified in
shooting Jose if the use of force was absolutely necessary to prevent the curtailment
of the life of one of the police officers. Thus, fulfillment of duty is also a justifying
circumstance that is applicable to this case.
The doctrine of confession and avoidance states that there is an admission to
the averments of the complaint however the respondents are exempted or lawfully
justified in committing the act.
A policeman in the performance of duty is justified in using such force as is
reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily harm.
In case injury or death results from the policeman’s exercise of such force,
the policeman could be justified in inflicting the injury or causing the death of the
offender if the policeman had used necessary force. Since a policeman’s duty requires
him to overcome the offender, the force exerted by the policeman may therefore differ
from that which ordinarily may be offered in self-defense.

Second Issue

The second issue is whether or not probable cause exists to charge the
respondent police officers for the crime of homicide under article two hundred and
forty nine of the Revised Penal Code.
The respondent police officers contend that the complaint filed against them by
the heirs of Jose must be dismissed outright for lack of probable cause.
I agree with the respondent police officers.
Probable cause has been defined as the existence of such facts and
circumstances as would lead a person of ordinary caution and prudence to entertain
an honest and strong suspicion that the person or persons charged are guilty of the
crime subject of the investigation. Further, probable cause has been defined as such
facts as are sufficient to engender a well – founded belief that a crime has been
committed and that the respondents are probably guilty thereof. The determination of
its existence lies within the discretion of the prosecuting officers after conducting a
preliminary investigation upon complaint of an offended party.
In the facts presented, I cannot find a reason to have a slight suspicion that the
respondent police officers committed the heinous crime of homicide because the
police officers were on duty when a report of the incident was informed to them.
Further, from the fact alone that Jose was drunk and had a gun, it is a precautionary
step on the part of the police officers to be vigilant since they will be dealing with a
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person who was severely inebriated. Further, it was Jose who fired the first gunshot
towards the police officers and even threatened to shoot PO3 Danilo whom he pinned
down. It was then the instinct of PO3 Selvi, who, at that time, fired the gun with the
sole intention of pacifying Jose, which saved the life of PO3 Danilo. Further, the right
of a person to take life in his own defense or in defense of another who bears close
relationship is universally recognized. The common law goes further and permits
human life to be taken for the protection of a companion or other person even a
stranger. The rule then is that what one may do in his own defense, another may do
for him as what happened in the instant case.
Being based merely on reasonable belief and opinion, it does not import
absolute certainty. Probable cause need not be based on clear and convincing
evidence of guilt but upon reasonable belief.
In the present case, there is no sufficient evidence that may show probable
cause to charge the respondent police officers.
In order to that probable cause to file a criminal case may be arrived at, or, in
order to engender a well – founded belief that a crime has been committed, the
elements of the crime charged should be present. This is based on the principle that
every crime is defined by its elements, without which, there should be, at the most, no
criminal offense.
One of the elements of the crime of homicide under article two hundred and
forty nine of the Revised Penal Code is criminal intent. Criminal intent is lacking in the
present case because of the factual circumstances of the incident. Under article three
of the Revised Penal Code, to be held liable for intentional felony, the offender must
commit the act prohibited by the Revised Penal Code with specific criminal intent and
general criminal intent. General criminal intent is an element of all crimes but malice is
properly applied only to deliberate acts done on purpose and with design.
Moreover, evil intent must unite with an unlawful intent for there to be a felony,
which is a requirement in the crime of homicide.
Such intentions mentioned are absent and non existing and thereby does not
engender a well founded belief that a crime has been committed in the present case
because the intention of the three police officers were to apprehend the perpetrator
and on the part of PO3 Selvi, to defend and help his co – police officer PO3 Danilo
against the injury or even death that may be caused by Jose.
The laws directly applied to this case, without any doubt, are expressly clear
and unambiguous.
It is very clear under article eleven of the Revised Penal Code that the persons
mentioned under paragraph three and paragraph five of the aforesaid article do not
incur criminal liability.
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Article eleven of the Revised Penal Code, should be applied exactly the way
the legislature has expressed itself clearly in the law. The clear, unambiguous and
unequivocal language of the law should preclude the courts from construing it and
gives it no discretion but to directly apply the law. The law in the present case, must
be taken to mean what it says. The literal meaning must be followed and that no
explanation of it is required
Hoc quidem perquam est, sed ita lex scripta est. It is exceedingly hard but so
the law has written.
The law is clear and unequivocal, the meaning of article eleven of the Revised
Penal Code is determined by the language employed and the law is taken to mean
exactly what it says, as in the case of article eleven of the Revised Penal Code where
it provides that the persons mentioned therein do not incur criminal liability. The law
must be applied.
The statute or law should be applied regardless of whether it is unwise, hard or
harsh. If the law is clear and free from any doubt, it is the duty of any judicial body or
executive body exercising quasi – judicial functions to apply it without fear or favor, to
follow its mandate, and not to tamper with it.
In the present case, article eleven which provides the lawful and justifiable acts
which excuses a person from incurring any criminal liability, and article two hundred
and forty nine which defines homicide, and article three which is the element of all
felonies, all under the Revised Penal Code, are clear and free from any doubt and
should therefore be directly applied. Moreover, in the present case, it is within my
belief that the respondent police officers, without any slight suspicion, have acted with
justification. Hence, a decent regard to the legislative will should inhibit any court or
any executive body exercising quasi – judicial functions, from engaging judicial
legislation to change the tenor of the law that do not conform with ordinary experience
or practice. Nor may the court or any executive body exercising quasi – judicial
functions rewrite the law under the guise of interpretation.
The first sentence of article eleven of the Revised Penal Code is
commanding that the persons enumerated therein do not incur criminal liability.
It is my belief, as the investigating prosecutor, that the respondent police officers must
not incur criminal liability for the law is the law. The law must be enforced and
obeyed. There may be discretion as to what a particular provision requires;
there can be none whatsoever as to the enforcement and application thereof
once its meaning has been ascertained. What it decrees must be followed;
what it commands must be obeyed. If there is a need to change, amend or repeal it,
that may be done through a legislative process.
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If the law is clear, appeals to justice and equity as justification to construe it


differently are unavailing. For equity is available only in the absence of law and not its
replacement. Equity is described as justice outside legality, which simply means that it
cannot supplant although it may supplement the law.
I sympathize with the complainant of this instant case because of the loss that
they suffered. Their beloved one perished. However, such loss must not be blamed to
the respondent police officers because it was the perpetrator himself who acquired
loss for his family. Moreover, appeals for justice and equity cannot justify disregard of
the mandate of the law so long as it remains in force. All abstract arguments based on
equity should yield to positive rules. Aequitas nunquam contravenit legis. Equity never
acts in contravention of the law.
Therefore, because of the foregoing instances of the case and the laws and
jurisprudence applied, I hereby dismiss the case for lack of probable cause to charge
and to prosecute the respondent police officers namely, PO3 Ronald, PO3 Danilo and
PO3 Selvi for the crime of homicide enunciated under article two hundred and forty
nine of the Revised Penal Code. Also, the civil liability of the respondents is hereby
extinguished.